Stacey A. Steinbach Texas Alliance of Groundwater Districts TWCA Annual Meeting March 7, 2012 SB 660: Amendments to DFC Adoption Process Recent Rulemakings DFC Appeals Drought Update Looking Ahead www.twca.org

1. Groundwater Management Update
Stacey A. Steinbach
Texas Alliance of Groundwater Districts
TWCA Annual Meeting
March 7, 2012

2. Topics for Discussion
• SB 660: Amendments to DFC Adoption Process
• Recent Rulemakings
• DFC Appeals
• Drought Update
• Looking Ahead

3. Senate Bill 660

4. SB 660 – Adoption of DFCs
• New DFC process allows for more public involvement and
requires additional notice
• In proposing DFCs, GCDs must now consider 9 specific
factors and a balancing test
• “District representatives” must meet at least annually
and must establish propose for adoption DFCs at least
every 5 years

5. New DFC Factors
• DFC = quantitative description of desired condition of groundwater
resources in a GMA at one or more future times; adopted per 36.108
• In establishing the Before voting on the proposed DFCs, GCDs must
consider:
Private
Aquifer Uses State Water Hydrological Impacts on
Property
or Conditions Plan Conditions Subsidence
Rights*
Any other
Socioeconomic Environmental Feasibility of
relevant
Impacts* Impacts* achieving DFC*
information*

6. New DFC Balancing Test
Conservation, preservation, protecti
on, recharging and prevention of
waste of groundwater and control of
subsidence
Highest practicable
level of groundwater
production

7. New DFC Adoption Process

8. New DFC Adoption Process
District reps meet &
Each GCD must hold a
propose new DFCs for Proposed DFCs mailed to
public hearing on
adoption; 2/3 of all GCDs; 90-day comment
relevant DFCs & make
district reps must vote to period begins
copies available to public
approve DFCs
[Within 60 days,]*
GCD votes on DFCs; GMA meeting(s) to
district reps must submit
prepares summary of consider GCD hearing
DFCs, proof of notice, &
comments & suggested summaries & adopt DFCs
explanatory report to
revisions (2/3 of all reps)
TWDB (and GCDs)
GCD meeting to adopt
GCDs must update
DFCs asap after receipt GCDs must amend rules
management plans
of explanatory report; within 1 year of updating
within 2 years of DFC
[info to TWDB within 60 management plan
adoption at GMA
days of adoption]*

9. Notice of DFC Meetings – GMA Level
• 10-day and OMA notice required; must be posted at SOS, COs,
and GCDs in GMA and must include:
– Date, time, and location
– Summary of proposed actions
– List of GCDs in GMA and contact information
• Failure or refusal of one or more GCDs to post does not
invalidate actions
• District reps may elect one GCD to be responsible for providing
notice of a joint meeting

10. Notice of DFC Meetings – GCD Level
• 10-day notice of hearings on DFCs and meetings to adopt DFCs
• Notice must include:
– Proposed DFCs and agenda items
– Date, time, and location
– List of GCDs in GMA and contact information
– Information on submitting comments
• DFC hearings must also be posted pursuant to GCD rulemaking
hearing requirements (includes publication)

11. Explanatory Report
• Adopted DFCs
• Policy and technical justifications for each adopted DFC
• Documentation showing how DFC factors were
considered
• List of DFCs considered but not adopted and reasons why
• Analysis of public comments received

12. Using the MAG
• Modeled is the new Managed
• Defined as the amount of water that may be produced on an
average annual basis to achieve a DFC
• GCDs, to the extent possible, shall issue permits up to the point
that the total volume of exempt and permitted groundwater
production will achieve an applicable DFC [permitted equals the
MAG, if administratively complete permit applications are
submitted…]

13. Using the MAG
In issuing permits, GCDs must manage total groundwater production on
a long-term basis to achieve an applicable DFC and consider:
Yearly
Exempt Previously Actual Precipitation
MAG* Use Authorized Production &
Estimates* Withdrawals Estimates Production
Patterns

14. Agency Rulemakings

15. TWDB Proposed Rules
• Dec. 2011: introduction to rulemaking plans for implementing
SBs 660, 727, 737
• Jan. 2012: Stakeholder meeting; comments accepted through
January 31
• April 2012: draft rules expected; informal public comment
period before formal proposal by Board

16. TCEQ Proposed Rules
• SB 313 (creation of GCDs in PGMAs)
• SB 660 (Petitions for Inquiry)
• Considered by TCEQ March 7
• Comment period March 23 – April 23
• Public hearing April 17

17. RRC Hydraulic Fracturing Rules
• Implement HB 3328; wells permitted on or after January
2, 2012
• Require disclosure of hydraulic fracturing fluid ingredients and
amount of water used; operator must post on FracFocus
on/before submission of well completion report
• Exceptions: undisclosed, unintentional, and incidental
ingredients and ingredients that are eligible for trade secret
protection (can be challenged)

18. Joint Planning
• xcv

19. DFC Appeals

20. DFC Appeals - Currently
• Currently: person with a “legally defined interest in
groundwater,” a GCD (in or adjacent to), or a RWPG in the
GMA can file petition with TWDB to challenge reasonableness
• Appeals filed in 7 of the 16 GMAs
• Challenges included:
Excessive
economic/ Excessive Impacts to Use of best Insufficient
Geographic
private ecological surface available stakeholder
area use
property impacts waters science input
impacts

21. DFC Appeals – What’s Next?
• Two separate concepts floated last session:
– “Affected person” files petition with GCD; SOAH hearing; PFD;
GCD final order; appealable to district court in GMA
– GCD’s adoption of DFC may be challenged in district court in
local venue in same manner as GCD rule (substantial evidence)
• What about GCD appeal? Which vehicle is appropriate?
• GCDs and TWCA members should consider consensus
language

22. GCDs and the Drought

23. Effects of the Drought
Has the Drought Affected Your Are the Aquifers in Your District
District? Showing Signs of the Drought?
No
No
13%
24%
Yes
Yes
76%
87%

24. Effects of the Drought
Increase of "dry" wells in the district 46%
Implementation of voluntary restrictions 21%
Implementation of mandatory restrictions 15%
Less time to focus on district administration 33%
Increase in community outreach 52%
Increase in well registrations 52%
Increase in permit applications 73%

25. Effects of the Drought
• No one-size-fits all solution to
groundwater management
challenges
• Determining full impact of
drought may take years
• Encourages increased
education and better planning

26. Looking Ahead
• House and Senate Interim Charges
• EAA v. Day and McDaniel
• The Drought
• Conservation Strategies &
“New” Water Sources

27. Questions?
Stacey A. Steinbach
Texas Alliance of Groundwater Districts
P.O. Box 152169
Austin, Texas 78715-2169
tagdexec@texasgroundwater.org
(512) 809-7785
www.texasgroundwater.org

28. EAA v. Day and McDaniel

29. New DFC Adoption Process
GCDs in GMA meet at OMA/10-day notice of
2/3 of all GCD reps
least annually & GMA meetings
must vote to approve
propose new DFCs for required; notice at
DFCs
adoption every 5 years SOS, COs, & GCDs
OMA/10-day notice of GCD must hold public
90-day comment period
GCD meetings required; hearing on relevant
begins when DFCs
must include proposed DFCs & make copies
mailed to GCDs
DFCs available to public
GCD votes on
GMA meeting(s) (notice [Within 60 days,]* GCD
DFCs, summarizes
per above) to consider reps must submit
comments from
info & adopt DFCs (2/3 DFCs, proof of notice, &
hearing, & suggests any
of all members) explanatory report
revisions
GCD meeting (notice GCDs must update GCDs must amend rules
per above) to adopt management plans within 1 year of
relevant DFCs asap after within 2 years of DFC updating management
explanatory report* adoption at GMA plan

30. DFC Appeals – GMA 1
• July 2009: GCDs adopt DFCs
• Aug. 2009: Mesa Water and G&J Ranch
appeal DFCs of Ogallala Aquifer
• Feb. 2010: TWDB finds DFCs
reasonable
• March 2010: Appellants file suit
• Sept. 2010: Petition for Inquiry at TCEQ
• Feb. 2012: Lawsuit dismissed – no
controversy

31. DFC Appeals – GMA 7
• July 2010: GCDs adopt DFCs
• July 2011: Grass Valley Water appeals
DFCs of the Edwards-Trinity (Plateau)
Aquifer in Val Verde and Kinney
Counties
• Jan. 2012: Public hearings
• April 2012: Petition to be presented to
TWDB

32. DFC Appeals – GMA 9
• Aug. 2008: GCDs adopt DFCs
• Aug. 2009: Plateau RWPG, Kerr Co, and
UGRA appeal DFCs for Edwards
• Jan. 2010: TWDB finds DFC unreasonable
• July 2010: GMA amends DFC for Edwards;
adopts DFC for Trinity
• March/July 2011: Flying L Guest Ranch and
WVWA appeal DFC of Trinity
• March 2012: TWDB finds DFCs reasonable

33. DFC Appeals – GMA 10
• Aug. 2008: GCDs adopt DFCs
• Jan 2010: Grass Valley Water
appeals DFC of Edwards (Balcones
Fault Zone) Aquifer in Kinney
County
• Jan. 2012: Public hearing on DFC
• April 2012: Petition to be
presented to TWDB

34. DFC Appeals – GMA 11
• April 2010: GCDs adopt DFCs
• April 2011: Crown Pine Timber 1
and Forestar appeal DFC of
Carrizo-Wilcox Aquifer
• Feb. 2012: Public hearing on DFC
• May 2012: Petition to be
presented to TWDB

35. DFC Appeals – GMA 12
• Aug. 2012: GCDs adopt DFCs
• July/Aug. 2011: End Op and
Environmental Stewardship appeal
DFCs of all or most aquifers
• March 2012: Public hearings
• June 2012: Petition to be presented
to TWDB

36. DFC Appeals – GMA 13
• April 2010: GCDs adopt DFCs
• Feb./April 2011: CRWA and Hays
Caldwell Public Utility Agency appeal
DFC of most aquifers
• Dec. 2011: Public hearing on DFCs
• March 2012: TWDB finds DFCs to be
reasonable

37. Petition for Inquiry – SB 660
• Affected person:
– A landowner in the GMA
– A GCD in or adjacent to the GMA
– A RWPG with a water management strategy in the GMA
– A person who holds or is applying for a permit from a GCD
in the GMA
– A person who has groundwater rights in the GMA
– Any other person defined by TCEQ rule

38. Petition for Inquiry – SB 660
• Submit a management plan to TWDB
• Participate in joint planning
• Adopt rules
• Adopt applicable DFCs adopted by the GMA
• Update the management plan within 2 years of adoption of new DFCs
• Update rules to implement applicable DFCs within a year after updating
the management plan
• Adopt rules designed to achieve DFCs*
• Adopt rules that adequately protect groundwater*
• Enforce rules for the adequate protection of groundwater*