1. Groundwater Conservation Districts
and Legislation
Stacey Allison Steinbach
Texas Alliance of Groundwater Districts
TGWA 2015 Annual Convention
February 27, 2014

2. GCD Snapshot
Groundwater Ownership
Legislative Update

3. The Role of the GCD
Conservation, preservation, protection,
recharging and prevention of waste of
groundwater and control of subsidence
Highest practicable level
of groundwater
production

4. Groundwater Conservation Districts
• Currently 97 GCDs and 2 subsidence districts
• Three GCDs currently awaiting confirmation
• Most often created by Legislative action; can be
created by petition of landowners or TCEQ
• GCDs currently cover 172 counties in whole or in part

5. Source: John Dupnik, BSEACD
History of
GCDs

6. How GCDs Manage Groundwater
Science
Education
Regulation
of Wells
Joint
Planning

7. Water Code Chapter 36
• Registration requirements
• Well construction standards
• Well spacing requirements
• Reporting requirements
• Permit requirements
• Production limitations
Regulation
of Wells

8. Registration Construction Spacing Reporting Permitting Production
Limits
Exempt D&L
Wells • • •
Exempt O&G
Wells • • • •
Exempt
Mining Wells • • •
Other
Exempt Wells • • • •
Non-Exempt
Wells • • • • • •

9. Joint Planning: The Acronyms
• GMA: Groundwater Management Area (GCDs grouped
generally by major aquifers for the purpose of joint planning)
• DFC: Desired Future Condition (a snapshot of what a specific
aquifer will look like at specified times in the future)
• MAG: Modeled Available Groundwater (science + policy)
HB 1763, 2005

10. GCD=Groundwater Conservation Districts

11. GMA=Groundwater Management Area

12. DFC=Desired Future Condition
• Desired future condition = quantifiable future groundwater metric
(what aquifer will look like in future); overall management objective
• GCDs must implement a balancing test and consider:
Aquifer Uses
or Conditions
State Water
Plan
Hydrological
Conditions
Private
Property
Rights
Impacts on
Subsidence
Socioeconomic
Impacts
Environmental
Impacts
Feasibility of
achieving DFC
Any other
relevant
information

13. MAG=Modeled Available Groundwater
• Amount of water that may be produced on an average
annual basis to achieve a DFC
• One tool in GCD toolbox for achieving DFC:
MAG Exempt Use
Authorized
Withdrawals
Actual
Production
Precipitation
and
Production

14. Joint Planning
Joint
Planning
GCD
GMA
DFC
TWDB
MAG

15. TAGD’s GCD Inventory
http://www.texasgroundwater.org/resources/gcdi.html

16. GCD Snapshot
Groundwater Ownership
Legislative Update

17. Rule of Capture
• Adopted as Texas law in 1904 East decision
• Landowners have right to capture an unlimited
amount of groundwater beneath their property
• Called “law of non-liability” and “law of the biggest
pump”
• Concerns with certainty and protection

18. Important Cases
• Houston & Tex. Cent. R.R. Co. v. East
• Pecos County WCID No. 1 v. Williams (Comanche Springs)
• Friendswood Development Co. v. Smith-Southwest Industries
• City of Corpus Christi v. City of Pleasanton
• Sipriano v. Great Spring Waters of America, Inc. (Ozarka)
• Barshop v. Medina County UWCD
• City of Del Rio v. the Hamilton Trust

19. Senate Bill 332 (2011)
• Landowners own groundwater below the surface as
real property
• Landowner entitled to drill for and produce
groundwater, but not a specific amount
• GCDs may limit or prohibit drilling based on spacing or
tract size and regulate production

20. EAA v. Day (2012): Facts
• 1956: irrigation well drilled; used until 1970s
• Before 1983: well casing collapsed/pump removed; well
continued to produce water that was stored in holding tank and
used for irrigation and recreation
• 1993: EAA created; historic use period ends
• 1994: Plaintiffs purchase property
• 1996: Plaintiffs timely request 700 acre-feet; EAA denies based
on no historic use

21. EAA v. Day (2012): Issues
• Did EAA err in limiting permit to 14 af?
• Do plaintiffs have a constitutionally protected interest in
the groundwater beneath their property?
• Did the EAA’s denial of a permit in the amount requested
constitute a taking?
• Are plaintiffs’ other constitutional arguments valid?

22. EAA v. Day (2012): Holding
• Did EAA err in limiting permit to 14 af? No
• Do plaintiffs have a constitutionally protected interest in
the groundwater beneath their property? Yes
• Did the EAA’s denial of a permit in the amount requested
constitute a taking? Don’t Know
• Are plaintiffs’ other constitutional arguments valid? No

23. EAA v. Day (2012): Analysis
• Rule of capture/ownership in place NOT mutually exclusive
• Property interest in groundwater subject only to rule of capture and
GCD regulations
• Penn Central analysis: economic impacts, investment-backed
expectations, and nature of the regulation
• EAA acted in accordance with EAA Act; did NOT say whether taking
occurred (now settled)

24. EAA v. Bragg (2013): Facts
• Two pecan orchards, one with historic use
• EAA issued one reduced permit and denied other
• Braggs were forced to purchase water for irrigating
(10% increase in irrigation costs)
• Trial court found for plaintiffs

25. • Who is the proper party – the EAA or the State?
• Did the EAA’s actions amount to a taking?
• How should damages be measured?
EAA v. Bragg (2013): Issues

26. • Who is the proper party – the EAA or the State? ?
• Did the EAA’s actions amount to a taking? Yes
• How should damages be measured? Value of
orchards before and after
Holding

27. Groundwater Takings Analysis?
• Economic impact
• Interference with investment backed
expectations
• Character of governmental action
• “Other Relevant Factors”

28. What We Know
• Land ownership includes a constitutionally-protected interest in
groundwater in place that cannot be taken for public use
without adequate compensation
• That interest does not preclude regulation by a GCD in
accordance with Chapter 36 of the Water Code
• Some limitation of groundwater production does not constitute
a compensable taking

29. What We Don’t Know
• How much regulation is too much?
• Is there a distinction between EAA and Chapter 36 GCDs when
it comes to a takings claim?
• How will different “uses” be affected?
• Will there be unintended consequences?
• How are damages are calculated? (but see Bragg)

30. GCD Snapshot
Groundwater Ownership
Legislative Update

31. Charles Perry*
Judith Zaffirini**
Brandon Creighton
Bob Hall
Juan “Chuy” Hinojosa
Lois Kolkhorst
José Rodriguez
Senate: Agriculture, Water & Rural Affairs

32. Senate: Nat. Resources & Economic Devel.
Brian Birdwell
Judith Zaffirini
Troy Fraser* Bob Hall
Juan “Chuy” Hinojosa
Craig Estes**
Carlos Uresti
Robert Nichols
Kel Seliger
Eddie Lucio, Jr.
Kelly Hancock

33. Jim Keffer*
Trent Ashby**
Dennis Bonnen
Tracy King Eddie Lucio III
DeWayne Burns
James Frank
Kyle Kacal
Lyle Larson
Poncho Nevárez
Paul Workman
House: Natural Resources

34. TWCA Consensus Bills
• HB 950 – State Auditors’ Office Bill
• HB 930 – TDLR Bill
• HB 655 – ASR Bill
• HB 1248 – Permitting Bill
• HB 1221 – Seller’s Disclosure Bill
• Not yet filed: Chapter 36 Cleanup and Hearings

35. HB 950: State Auditor Bill (Lucio III)
• Would authorize the State Auditor’s Office to
audit a GCD’s financial records just as it does for
other water districts
• Would end the practice of having the State
Auditor review a GCD’s management plan,
leaving that to TCEQ

36. HB 930: TDLR Bill (Miller)
• Authorizes TDLR to reinstate its apprentice well
driller and pump installer programs
• Requires conversions of an oil & gas well to a
water well to be supervised by a licensed driller
• Authorizes TDLR to contract with governmental
entities to assist with enforcement

37. HB 655: ASR Bill (Larson)
• Streamlines ASR projects and gives TCEQ exclusive jurisdiction
over ASR projects (outlines considerations for permitting)
• Eliminates pilot project requirement and clarifies that a water
right amendment is not required to use surface water for ASR
• Authorizes TCEQ to determine the amount of recoverable
water; any water withdrawn beyond TCEQ’s authorization is
subject to GCD's spacing, production, fee, and permitting rules
• Requires reporting, testing, and registration of all ASR wells

38. HB 1248: Permitting Bill (Lucio III)
• Automatic renewals if no conditions have changed
• Exceptions relate to fees, violations, and unpaid
penalties
• Original permit remains active as long as amendment
or renewal process ongoing
• Does not prohibit a GCD from amending a permit to
carry out the purposes of Chapter 36

39. HB 1221: Seller’s Disclosure Bill (Lucio III)
• Requires sellers of residential real property to
include GCD information on the state-required
disclosure form provided to a potential buyer

40. Brackish Groundwater Bills
• HB 30 – HB 2578 from 83rd Session
• HB 835 – TAGD consensus bill
• HB 836 – Bill considered by TWCA

41. HB 30: Brackish Groundwater (Larson)
• TWDB identifies brackish groundwater production zones:
– Separated by hydrogeologic barriers to avoid “significant” impacts
– Not serving as a primary water supply
– Not located in subsidence areas or EAA jurisdiction
• Groundwater owner may petition GCDs to adopt rules for issuing
permits in the zone
• 30-year permits and unlimited production, except in cases of
unanticipated impacts

42. HB 835: Brackish Groundwater (Larson)
• Groundwater owner may file a petition with a GCD to designate a
brackish groundwater management zone:
– Separated by hydrogeologic barriers to avoid “adverse” impacts
– Not area serving as a primary water supply or subject to a DFC
– Not located in subsidence areas or subsidence districts/EAA jurisdiction
• TWDB may participate through filing of technical report
• Production limits must be based on impacts to water
• outside of the zone; may be amended in case of unanticipated
impacts

43. HB 836: Brackish Groundwater (Larson)
• Petition for creation of brackish groundwater production zone:
– Separated by hydrogeologic barriers to avoid “unreasonable negative”
impacts
– Not area serving as a primary municipal or agricultural water supply
– Designation appealable to TWDB
• Permit at GCD level
– Uncontested permit process with production limits, permit term, and
monitoring requirements consistent with zone designation
– If impacts are greater than anticipated, may be amended with approval
from TWDB

44. HB 1191: Buffer Zones (Isaac)
• Establishes buffer zones – 5 miles outside the
boundaries of a PGMA
• Commercial drillers in buffer zone must apply to
TWDB and any GCD in the territory the well is
located

45. HB 898: Well Confidentiality (Ashby)
• Would protect reports submitted by well owners to
GCDs from disclosure under the Public Information Act
• Well owner must submit a written request for
confidentiality
• GCD may release info only if summarized so individual
owners/parcels cannot be identified
• Does not apply to public entities

46. TWDB / Water Planning
• HB 632 (Simpson): prohibits a RWP from including a
project in another RWP area unless at least 2/3 of
those RWP members consent
• HB 280 (Simmons): SWIFT info on website
• SB 413 (Seliger): changes TWDB board member
requirement from law to production agriculture;
requires one member to be from a rural area

47. TWDB / Water Planning
• HB 1232 (Lucio III): TWDB to study and map
groundwater in aquifers by December 31, 2016
• HB 1296 (Flynn) – would authorize each
commissioners court in Regional Water Planning
Area D to appoint a member to that RWPG

48. SB 360: Takings (Estes)
• Amends definition to series of actions over 10-yr period
• Taking possible if reduces market value by 20%
• Taking could occur if 20% reduction of revenue/income
from use or sale of the property
• Applies to municipalities and actions taken to comply
with federal or state law, as well as actions to prevent
waste or protect groundwater rights

49. SB 517: Injection Wells (Uresti)
• Would require an applicant for an injection well
permit to provide notice to the GCD if the
proposed injection well is within a 10-mile
radius of the GCD’s jurisdiction

50. HB 551 (Johnson): Criminal Records
• Prohibits a licensing authority from suspending or revoking a
license or disqualifying a person with a conviction from
receiving a license:
– Without first allowing the applicant to formally present arguments and
evidence in their favor; or
– For certain convictions under the penal code
• If applicant is still deemed ineligible, licensing authority must
issue a letter detailing how the offense is a disqualifying
conviction

51. Questions?
Stacey Allison Steinbach
stacey@texasgroundwater.org
twitter.com/TXTAGD
facebook.com/texasgroundwater