Shauna fitzsimmons
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Texas Groundwater Summit 2015
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Shauna fitzsimmons
- 1. FAIR SHARE: WHAT DOES IT MEAN? Presented By: Shauna Fitzsimmons Texas Alliance of Groundwater Districts TEXAS GROUNDWATER SUMMIT August 26, 2015
- 2. Limited availability through DFCs Unfettered exercise of the right to produce GROUNDWATER CONSERVATION DISTRICTS THE TENSION
- 3. • Ownership in place - A property owner owns the groundwater beneath his property “in place” • Depriving a property owner the right to produce MAY constitute a “taking” of his property • Penn Central taking analysis • EAA v. Bragg – EAA found liable for a taking under Penn Central analysis • Buzz words: correlative rights, fair share, recovery of investment backed expectations (protection of historic/existing use) EAA v. Day
- 4. “FAIR SHARE” • Historically used in the context of oil and gas regulation and the application of correlative rights • Relates to the REGULATION of the resource – whether the RRC’s regulation fairly allocates the resource based on the tract size • Does not create or signify an ownership interest
- 5. How is FAIR SHARE applied to Groundwater Regulation? “ONE purpose of groundwater regulation is to afford each owner of water in a common, subsurface reservoir a fair share.” “regulation that affords an owner a fair share of subsurface water must take into account factors other than surface area.” Fair Share ≠Correlative Rights
- 6. Fair Allocation of Oil and Gas Resources Area of Land Owned Fair Allocation of Groundwater Resources Area of Land Owned Historic Usage Future Needs Concerns Related to Use: Environmental Impacts and Subsidence
- 7. Oil and Water Don’t Exactly Mix Similar • Rule of capture • Ownership in place • Common resource • Fair share • Prevent Waste But NOT the same • Oil and Gas – Mineral estate – Non-renewable – Statewide regulation – Strictly correlative rights • Groundwater – Surface estate – Renewable – Local regulation – Consideration of historic use , future needs, concerns related to use (environmental impacts/ subsidence) – Desired Future Conditions
- 8. Similar… But Not the Same • Mineral Estate • Non- Renewable • Statewide Regulation • Strictly correlative rights • Surface Estate • Renewable • Local Regulation • Consideration of historic use, future needs, etc… • DFCs • Rule of Capture • Ownership in Place • Common Resource • Fair share • Prevent Waste Oil & Gas Groundwater
- 9. Fair Share of WHAT? 1. How big is the pie going to be for this generation of landowners to use? – Establishment of DFCs – The Modeled Available Groundwater (“MAG”) 2. How are we going to divvy up that pie? – Regulation of the common resource by GCDs
- 10. Development of DFCs 1. Aquifer uses or conditions, including conditions that differ substantially from geographic area to another 2. Water supply needs and strategies in the SWP 3. Hydrogeological conditions, including TERS, recharge, inflows, and discharge 4. Other environmental impacts, including impacts on spring flows and other sw and gw interactions 5. Impact on subsidence 6. Socioeconomic impacts reasonably expected to occur 7. Impact on interests and rights in private property, including ownership and the rights of landowners, their lessees and assigns 8. Feasibility of achieving the DFC 9. Any other information relevant to the DFCs DFC = is a quantitative statement of what you want the aquifer to look like in 50 years (defined in terms of water level, quality, spring flows, or volume, etc.).
- 11. Existing Users v. New Users / Historic Use v. Future Needs Large users v. Small Users / Rule of Capture v. Limited Resource Whose right to produce gw is superior? Current Users: “Protect my investment/livelihood” Future Users: “Protect my property rights”
- 12. Different Types of Production Regulations • Well spacing regulations • Acreage-based regulations • Use-based regulations • Limitations on wells
- 13. What we don’t know… • FAIR SHARE of.. – Gw from a particular layer – Gw of a particular quality – Gw that can economically be produced (there is water down there but at what cost).
- 14. Adaptive Management Process 1. Setting Desired Future Conditions 2. District Management Plan 3. District Rules
- 15. Post-Day Takeaways • Groundwater is owned in place by the overlying landowner, but it is subject to reasonable regulation by the state (through groundwater districts, for example). • What is a reasonable regulation and what will constitute a “compensable taking” is still not clear but the test is fact sensitive • Correlative rights not required by court or by legislature • Must balance reasonable investment-backed expectations of existing users with opportunity for new users to drill and produce their fair share of groundwater.
- 17. THANK YOU Shauna Fitzsimmons 919 Congress Ave. Ste 460 Austin, TX 78702 512.579.3603
Editor's Notes
- As I contemplated the title, I knew what they were getting at, but a better title would be this
- There is no meaningful property right without management of the resource. As we will see, getting your fair share of the resource only happens with regulation of the resource
- The fundamental difference btw oil and water is that with water the rate of withdrawal matters most (its not like you are trying to get a commodity that once you pull out of the ground you can get rich off the market) bc in most cases the continued value of the surface estate depends on the continued availability of water Relationship to the value surface – value of land of surface is not affected by withdrawal of oil and gas, value of land surface is always tied to water supply and if there is not economically viable source of water then value is lost From a management analysis – value of oil and gas is largely not impacted by how fast it is pumped off but the value of the surface estate may be completely dependent how long groundwater continues to be available (i.e. long term management) this may determine whether its inhabitable, grassable, capable of being developed, any economic development of surface estate will depend on CONTINUED availability of groundwater
- The fundamental difference btw oil and water is that with water the rate of withdrawal matters most (its not like you are trying to get a commodity that once you pull out of the ground you can get rich off the market) bc in most cases the continued value of the surface estate depends on the continued availability of water
- Simply stated, if we are going to continue to allow decision makers to set goals on what they desire the condition of the aquifer to be in the future (i.e. the DFC), then total available pumping on an annual basis has to be the “WHAT” rather than the total amount of water in storage in the aquifer. How long is it reasonable to assume that man kind will 1. continue to exist and 2. continue to need groundwater- that seems like some sort of philosophical question scraties might ask in ancient Greece. One of the trends that we see in GCD is a much greater move towards science – my firm represents most districts in the Dallas fort worth area, they recognized this need for good science early on the process and developed what is considered as the best groundwater availability model in the state for groundwater districts. And so Biggest struggles we have now is TERS report from TWDB that show the estimated storage that could be pumped if economics and water quality were not concerns. 1% of Estimated storage would cause hundreds of feet of drawdown – not even 1% is sustainable Analysis we are doing in some of our districts is what can economically be produced and not just for a large municipality or industrial entity that can spend millions of dollars per well to chase falling water columns but also small business owners or homeowners who can only afford a small well and if water levels get too deep they cant afford to access it If you take water in a confined system and you take it from confined to unconfined conditions- really bad things start to happen when we talk about economically produced water- instead of it being pushed towards your pump your pump has to stuck it from the surrounding soils One thing we looked at GMA 8 – bc we did this bang up model- and bc all land is not created equal with respect to gw – ran the model to determine how much could be pumped at certain locations without causing anyone from going confined to unconfined and the model could’t give an answer bc it was physically impossible – bc aquifers slop- areas in the updip areas went completely dry LONG before down dip So if you are trying to manage a common pool so you are protecting the property rights of all landowners, given the natural hydrogeology you are handed you may not be able to do anything if you allow significant amount of pumping to keep some areas from going 100% dry even if those areas don’t pump a single drop of water – in GMA 8 this happened with a run of just 50 years using the model – Trinity Aquifer
- Answer depends on where you are at Depends on the resources