Search Results for: groundwater

Biggest Decision in TX Groundwater Since 1904!

Almost 2 years ago, in one of our first blogs, we posted about a groundwater case pending in front of the Texas Supreme Court.  At the time, none of us predicted that we would have to wait over 2 years for a decision, but wait we did — until Friday.  On February 17th, the Texas Supreme Court issued perhaps the most important decision governing groundwater since the 1904 East case declared that right of capture was Texas' official system of allocation.  While we were awaiting a ruling, the Texas legislature tried to answer the same question posed to the court with SB 332.  After enacted legislation and a 50-page opinion, the only thing that we can be certain about is more uncertainty.

Some background

Although Texas recognizes right of capture, there was a question regarding when the property right is perfected. The fundamental issue in the Edwards Aquifer Authority (EAA) v. Day case is whether an overlying landowner owns the groundwater beneath her property “in place” or whether ownership of the groundwater only vests once the groundwater has been captured through pumping.   If the property right is held in place, regulations promulgated by groundwater districts limiting pumping by a landowner may constitute a constitutional taking requiring compensation. Consequently, imposing regulations to ensure groundwater sustainability may be become difficult if not impossible.

The ruling

The Day case was initiated when the plaintiff landowners requested 700 acre-feet from the EAA and were granted a permit for 14 acre-feet so they brought a claim alleging a taking.   The EAA grants permits based on proven historic use of the water between 1972 and 1993.  The court explicitly held that landowners have a vested right in water in place; however, the court remanded the case to determine if a takings had occurred in this individual case.  In defining the rule of capture, the court defined it as right of capture for oil and gas has been classified in the state.

The impact

While the ruling is being hailed as a victory by landowners, its true implications will not be known without further litigation.    This means that future court decisions will be responsible for filling in the factual details of what constitutes a taking and what does not.  Meanwhile, while that is getting sorted out around the state, groundwater pumping may be left unchecked during a critical time and a continuing drought will only exacerbate this problem.  In addition to creating some uncertainty across the state, the ruling may put the legitimacy of multi-year, stakeholder driven Edwards Aquifer Recovery Implementation Program (RIP) into question.  This is particularly unfortunate because it was a consensus-based approach to maintaining flow in the springs while still adhering to pumping limits.  While only time will tell, it is alarming to think that this ruling may have created more questions than answers thus putting our already fragile groundwater resources at further risk.

Posted in Austin, Central Texas, Edwards Aquifer, Groundwater, Groundwater Conservation Districts, Legislature, Litigation, san antonio, Water Planning | Tagged , , , , , | 2 Responses

Texas Groundwater – Other Voices

The ongoing saga involving groundwater ownership has been well documented on this blog.  Today, the House Natural Resources Committee is scheduled to hear the house version of the groundwater bill, Chairman Ritter’s HB 1730.

Both this bill and the senate compromise bill fail to address real concerns about its environmental impacts, the legal door it opens or its financial implications. Environmental groups are not alone in their opposition to this legislation.  Rice interests have joined in against the bill.  In an email to members to the Texas Rice Producers Legislative Group, Chairman LG Raun, laid out several reasons for the group’s opposition: (italicized)

  • It jeopardizes the sustainability of aquifers by encouraging pumping limits to be raised

We are in the middle of the worst Texas drought in 44 years and anything that raises pumping limits right now puts Texas’ water sustainability at risk.  We cannot afford to increase the demands on our already over-committed water resources.

  •  It monetizes groundwater so that landowners are guaranteed the right to pump groundwater, or they could be compensated by taxpayers if not allowed to do so

Making guarantees using shared resources can place a hefty financial obligation on groundwater conservation districts, the state and landowners.  In a Legislative Session in which members want to limit tax obligations on the public, this bill doesn’t seem to pass muster. Rice Farmers also take issue with the bill’s broad definition of “landowner.” We agree that when it comes to water and conservation, increasing the number of interested parties who can claim a “takings” is not a good idea. 

  •  It threatens the viability of groundwater conservation districts by subjecting them to excessively high risks of taking claims

The bill doesn’t properly protect Groundwater Conservation Districts from “takings” claims and leaves them open to an excessive liability, which virtually destroys the legislative intent reflected in the creation of the districts.  If passed, a large portion of the state’s water could be wrapped up indefinitely in litigation. 

Texas rice farmers are no strangers to water constraints.  The need for a readily available water supply is essential to their livelihood and their concerns about this issue is yet another clear indication of the real issues the bill presents. These concerns mean more uncertainty in Texas groundwater, including more lawsuits and more stress on aquifers and water resources that Texas cities count on. 

We agree with Sierra Club, who has suggested the bill be tabled until its environmental impacts can be studied by well-recognized hydrologists and scientists.  It’s the right thing to do.

Posted in Edwards Aquifer, Groundwater, Legislature, Ogallala, Water Rights | 1 Response

The Texas Groundwater Battle Continues

UPDATE: CSSB 332 Passed the senate.  If you are concerned about the bill – please contact the house member for your district.

A bill that could turn Texas groundwater management on its head could see a vote on the Senate floor as early as tomorrow (Wednesday, March 30, 2011).

Recently we posted about Senators Troy Fraser and Robert Duncan’s competing groundwater ownership bills.  Both bills left interested parties less than satisfied. A recently released compromise bill (Committee Substitute for Senate Bill 332 (CSSB 332)) is quickly moving through the legislative process, but did they get it right?

Unfortunately, Ken Kramer, Director of the Lone Star Chapter of the Sierra Club doesn’t think so. In a press release today, he stated his continued opposition to the bill. Although he recognized the efforts to bolster a groundwater conservation district’s ability to defend itself against court a landowners “takings” claims as a result of a district’s regulation or other action, he is still concerned by the bill’s continued declaration that groundwater ownership is a ‘vested’ property right.

 “By saying that a surface landowner has a ‘vested’ right to groundwater in place . . . the Legislature would be subjecting virtually every action by a groundwater district to a potential ‘takings’ claim . . . The result is likely to be either an explosion of litigation against districts for their actions to manage groundwater or a ‘chilling effect’ on districts taking action, or both.” 

Groundwater districts do not have the means to defend their actions against numerous individual takings claims in court or potentially paying millions of dollars in judgments. This economic reality would vitiate the legislative intent behind the creation of districts because they would be unable to continue their legitimate management functions. Further, there is already a legal avenue to challenge district actions in court as appeals of administrative decisions. 

Ken said it best by explaining, “[t]he future of the Texas economy and the preservation of our state’s environment depend upon a management system that recognizes legitimate limitations on groundwater withdrawal and use and strives ultimately for sustainability of groundwater resources. That will not be possible in a system based on concept of vested groundwater ownership rights. A vested groundwater ownership rights concept will complicate, not simplify, our ability to implement such a system effectively.” 

We will keep certainly keep an eye on this one and if you are concerned about CSSB332, contact your State Senator and tell them to vote no.

Posted in Austin, Groundwater, Legislature, Texas Rivers | Tagged , , | Leave a comment

The Senate Spends the Day Talking Groundwater

It’s fitting that on Texas Independence Day we are reporting on the hearing that Sen. Troy Fraser called the “Super Bowl of Water.”  Perhaps nothing stirs people's opinions in Texas more than water and private property. In a marathon 9-hour hearing yesterday, the Senate Natural Resources Committee debated two divergent bills attempting to define groundwater rights in Texas.  Sen. Troy Fraser’s bill, SB 332, seeks to decree a “vested ownership interest” in groundwater for private landowners. Sen. Robert Duncan’s bill, SB 667 seeks to better define the ownership rights of captured groundwater and clarify the authority of a groundwater district to regulate the conservation of that water. 

SB332

Testimony on SB 332 began with several state officials including Texas Agricultural Commissioner Todd Staples, Comptroller Susan Combs and a representative from the Attorney General’s office.  Staples and Combs both testified “on” the bill which means they weren’t officially taking a position for or against the bill, but both expressed their support for the rights of private property owners.

Landowners, including members of the Texas Farm Bureau and Texas and Southwestern Cattle Raisers Associations testified in support of Fraser’s SB 332, asserting their right to water flowing underneath their property.  What some conservations districts, environmental groups and others take issue with, is the ambiguity of those rights as defined in the bill.  In particular was the word “vested,” “You can ask different lawyers what those legal phrases mean and you get different answers,” said Jim Conkwright, manager of the High Plains Underground Water District No. 1 in Lubbock. Several Groundwater Districts’ representatives testified that they are largely concerned the bill will cripple their power to promote conservation and expose the already beleaguered system to never-ending “takings” litigation. 

 SB 667

Duncan’s bill seeks to further statutorily define the rights and powers of conservation districts, by allowing them the authority to regulate groundwater use through reasonable limits while still providing landowners clear rights to the groundwater under their property.  While everyone agreed about the need of conservation districts, landowners wanted clear authority to drill wells.  Bill Lynch, a landowner testified that the bill was tantamount to socialization of water, while Ken Kramer of the Lone Star Chapter of the Sierra Club testified that this bill further defined what was already existing law. 

As Texas grows and water’s scarcity becomes even more contentious, ambiguity is not our friend.  At odds in this issue are the interests of greater good and the rights of individual landowners.  It isn’t the first time and it won’t be the last time these interests are at odds, but with a resource as precious as water how can we must respect the right of the legislatively created districts to help achieve sustainability.  If you are interested in watching part or all of the hearing you can do so HERE.

Posted in Austin, Groundwater, Legislature, Ogallala, Resources, Water Planning | Tagged , , , | Leave a comment

The Legislature Plunges into the Groundwater Ownership Fray

Well we knew it was coming and only one day into session, and already we have a bill from Senator Fraser addressing groundwater ownership.

According to Senator Fraser, Senate Bill 332 “would clearly state that landowners have a vested ownership interest in the groundwater beneath their property…[G]roundwater conservation districts could still require a landowner to get a permit and limit the amount of groundwater that can be produced. However, the legislation would prevent a district from "taking" a landowner's right to capture the water beneath the land.”    

This all sounds very reasonable and benign, but the reality is that this legislation could undermine the ability of groundwater conservation districts to effectively manage the very resource that they are charged with protecting.  If every landowner has a vested right to the groundwater beneath their property how can a GCD manage that land owners’ access without it being considered a taking? 

Unless groundwater producers are subject to reasonable regulation by a GCD, we all run the risk of having that resource diminished in the future so that water may not be available.  All it takes is one bad actor. This affects cities, farmers, our rivers and streams…it effects everyone.  There is a limited amount of groundwater (and surface water, but that is another post) that can be produced, while also preserving and protecting this resource for future generations. 

Anticipating this issue, the Region K Water Planning Group passed a resolution yesterday stating that they “recommend strongly against the Texas Legislature or courts taking actions that would result in the creation of a vested right in groundwater prior to capture.”  Many people rely on groundwater in this region.  It is not possible to effectively plan for the future if access to groundwater can not be protected now and into the future.  The Coastal Bend and Colorado County GCD’s have passed similar resolutions as well.    

You can be certain that there will be more to come on this issue.  We will keep you posted.

Posted in Groundwater, Legislature, Water Rights | 5 Responses

Alphabet Soup: Navigating the Senate Groundwater Interim Hearing

Today's Senate Natural Resources (SNR) interim hearing was a lesson in the alphabet.  The primary topic: Groundwater.  The SNR had two primary interim charges relating to the groundwater planning process and financing many of the water infrastructure projects proposed in the State Water Plan.   Invited testimony was given by state agencies, landowner groups, groundwater districts (GWD) and environmental representatives.  The day set the stage for many of the issues that are sure to arise next legislative session.   The groundwater management process, determining desired future conditions (DFCs) and ownership could be heard at every turn. 

Robert Mace with the Texas Water Development Board (TWDB) kicked off the day discussing the DFC process and presenting the draft policy recommendations of the agency.  These included a request that DFC guidance be included in the water code; ensuring stakeholder outreach so that those affected are aware of the process; alteration in the petition process; timing and definition issues.   Several of these have been included in the agency's rule makings but are not yet in the code. 

The Texas Farm Bureau and Russ Johnson, an attorney representing the landowner perspective both expressed concerns with the potential ruling by the Texas Supreme Court regarding groundwater ownership.  Both felt that water is a property right and limiting access could result in a taking.  Mr. Johnson also pointed out several deficiencies he found in the DFC process.   He feels there is too much uncertainty in the process and warned against overregulation limiting interbasin transfers and negatively impacting Texas business. 

Groundwater district representatives were also present their experience tha the existing system was successful and the environmental perspective was presented by Sierra Club's Ken Kramer.   In the midst of all the acronyms and conflicting opinions, one thing is clear: groundwater issues are not going away and the legislature has a lot of work to do.   

Interested in hearing more? Just watch the archived recording online.

Posted in Austin, Central Texas, Environmental Flows, Groundwater, Legislature, Ogallala, Regional Planning Process, Water Planning, Water Rights | Tagged , , , | Leave a comment

Capturing our attention: More news on groundwater ownership

While we usually don't try to toot our own horn, we did want to draw your attention to a good blog post from Forrest Wilder at the Texas Observer.  The blog focuses on the pending determination of when a landowner owns the water under her property.  It highlights a little-noticed court decision in, Bragg v. Edwards Aquifer Authority,  in whichcompensation was granted to landowners for the “taking” of the water beneath their property by EAA.   Is it possible that this is a foreshadowing of how the Texas Supreme Court will rule in the pending EAA v. Day case?  We certainly hope not.  We will keep you posted.

Posted in Central Texas, Groundwater, Litigation, Water Planning | Tagged , , , , | 3 Responses

"Observing" Texas Groundwater

This week's Texas Observer has a great article on Texas groundwater politics.  Particularly interesting is the history behind many of the big groundwater purchases around the state. Currently, much of this water is still waiting for a buyer, who will likely pipe it to a major metropolitan area.

We have written previously on simmering groundwater conflicts and the negative impacts and hidden costs of long-haul pipeline projects.   It sounds like there might be lots to talk about this session in terms of water policy.  Stay tuned. We will be there keeping you updated.

Posted in Edwards Aquifer, Groundwater, Ogallala, Resources, Water Planning | Tagged , , | Leave a comment

Geek Alert: New Groundwater Export Tool Helps Analyze Supply Options

This post is for all you excel spreadsheet geeks out there…we know who you are! 

Here at EDF we have been looking at developing some sort of easy to use, on-line tool to show how the anticipated price of water from various types of projects is highly dependent on the assumptions that go into the cost calculations.  The idea is to allow those interested in examining different water supply options to quickly evaluate various possible scenarios.  So, for instance, how much does the cost of groundwater delivered from a rural area to a distant urban center fluctuate with changes in energy prices? 

 Today, we’re posting our first cut at this tool, and we’d love to have your comments and suggestions for improving it.   

Click to open tool

The “model” allows the user to change transport distance and energy costs and to look at different sizes of projects, from 75,000 to 200,000 acre-feet/year.  Documentation of the model assumptions can be found here in the calculation tables that are part of the spreadsheet.

 We’re indebted to a 2009 engineering intern from the University of Texas at Austin, Nishesh Mehta, for reviewing, revising and documenting the model, which provides estimates of construction and annual operation costs for groundwater pumping and delivery projects.  Many of the assumptions in the model are derived from either the Texas Water Development Board or various regional water plans.

Posted in Energy-Water Nexus, Groundwater, Resources | Tagged , , , , | Leave a comment

Understanding Water Tradeoffs for Hydraulic Fracturing

Talk of the impacts of hydraulic fracturing (fracing) is nothing new, but some new developments regarding where gas companies are seeking their water requires another conversation.  We have already explained the quantities of water that are needed to effectively frac a well, but where does all that water come from?  The easy answer is anywhere they can get it.  In some locations, it is primarily ground water that is often purchased from the surface owner. In other areas, water is purchased from a municipality, which sometimes mean that energy is used to treat the water to drinking water quality standards just to be mixed with chemical and sand before being injected deep underground. A newer trend is the purchase of a city's waste water effluent. Here are some thoughts to consider on a couple of these sources.

Groundwater

One of the biggest challenges for supplying frac water occurs in areas with little to no surface water available.  Perhaps, the most controversial of these is the Eagle Ford Shale in Southeast Texas.  To say this area is booming is the understatement of the year.  Each of these wells and all of the people flocking to this area need water. Lots of water.  Most of that water is coming from the Carrizo-Wilcox Aquifer.

Under Texas law, drillers are allowed to use water owned by the surface owner for their drilling operations which sometimes causes friction between these two parties, particularly if the surface owner doesn't hold the mineral interests. In other words, the surface owner may be receiving very little benefit for a lot of burden.  To bridge this gap, many new surface use agreements include payments for water used, which gives the surface owner a financial interest in the well that may not have previously been present.  Unfortunately, many of these contracts obligate the driller to use water only from the landowner's well which discourages or outright prohibits recycling.  More importantly, it is literally placing landowners against one another for this precious resource.

Another twist to this story involves another part of the aquifer.  Although much of the aquifer produces fresh water, other areas are more brackish in quality.  While the gas companies pull tremendous amounts of fresh water from the aquifer, the city of San Antonio is launching a project to treat the brackish water and transport it to town for municipal use.  This is an extremely expensive project that is part of their new supply portfolio.  Why are oil companies adding chemicals to fresh water that will then be permanently stored in a disposal well while the citizens of San Antonio will pay to clean brackish water from the same area? Why aren't the gas companies compelled to use the brackish resources or help pay for San Antonio to use it?

To be clear, this is no fault of San Antonio's.  The city went after the water that they could acquire and currently, there are no regulations to prevent this from happening and water used for gas production is exempt from groundwater districts' regulations, but the result seems absurd and is not the best use of resources.

City Effluent

A more recent sought source of frac water is city sewer effluent.  The city of Bandera recently voted to sell the city's effluent to Alpha Reclaim Technology, who will transport the water from the sewer plant to drilling sites. At first blush, one might think this is a great solution and in some areas it may be.  Using sewer effluent is generally better than pumping fresh water needed by other users.  So what is the problem? Well, this water used to go down the Medina River and provide flows for the environment as well as for downstream users and now it is being intercepted before that can occur.  Again, Bandera isn't prohibited from making this deal and there is no regulation that requires them to continue to put their effluent in the river, but a change in this current practice will definitely have an impact.

The Future?

Both of these listed practices are legal, but neither may be wise.  The problem is that Texas doesn't always consider the big picture of water and how one user can impact another even in an accidental way.

As a recent conference, I was on a panel discussing these issues and a member of the audience asked why gas companies aren't being compelled to build water infrastructure, such as desalination plants, either for their own use or to save the citizens from having to pay for it in the future.  It was a reasonable point in my opinion.  There is a potential for these companies to make almost unimaginable amounts of money using local resources, such as water and then leave those who remain to pay the price.

It is clear that there are large economic benefits to fracing, both to individuals lucky enough to have mineral rights, and also to communities, but there is also a cost.  Unfortunately, we don't know how much or what this cost might entail, but ignoring it will not make it go away.  These areas need to start discussions about how to ensure longevity after the boom and how companies can contribute to that vision.

Posted in Austin, Drought, Environmental Flows, Groundwater, Hydraulic Fracturing, Water Planning | Tagged , , , , | 1 Response