gcds from a to z
TRANSCRIPT
![Page 1: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/1.jpg)
GCDs from A to Z Stacey A. Steinbach and Kathy Turner Jones
Texas Alliance of Groundwater Districts
Texas A&M University
AWRA Student Chapter
October 4, 2012
![Page 2: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/2.jpg)
Topics for Discussion
• Evolution of Groundwater Management
– GCDs
– Joint Planning
• Evolution of Groundwater Ownership
– Previous cases
– Senate Bill 332/EAA v. Day
• Lone Star GCD as an example of groundwater management
![Page 3: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/3.jpg)
Starting Point: 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”
• Exceptions: trespass, malicious or wanton conduct, waste,
contamination, subsidence due to negligent overpumping
![Page 4: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/4.jpg)
Groundwater Conservation Districts
![Page 5: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/5.jpg)
History of GCDs
• 1917: Conservation Amendment to Texas Constitution
• 1949: Statutory framework for creation of GCDs
• 1997: GCDs are the “State’s preferred method of groundwater management” (SB 1)
• 2012: 96 confirmed GCDs; three awaiting confirmation
![Page 6: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/6.jpg)
![Page 7: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/7.jpg)
What is a GCD?
• Political subdivision of the state of Texas
• Creature of the Legislature, powers expressly granted
• Granted specific legal authority related to the management of
groundwater; may regulate well spacing and groundwater
production
• Created to protect and balance private property interests
![Page 8: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/8.jpg)
What isn’t a GCD?
• Municipal water provider
• Water/wastewater treatment provider
• Groundwater owner
Freedigitalphotos.net
![Page 9: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/9.jpg)
How are GCDs created?
• By the Texas Legislature, pursuant to Article XVI, Section 59 of the Texas Constitution
• By TCEQ, pursuant to a a local petition
• By TCEQ, pursuant to the Priority Groundwater Management Area provisions
**Confirmation elections are held to confirm creation or tax authority
![Page 10: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/10.jpg)
GCD Facts
• More than half of water used in Texas is groundwater, 85% is within GCDs
• Oldest/largest GCD: High Plains (10,000 sq. miles, 16 counties)
• Smallest GCD: Red Sands, Hidalgo County (31 sq. miles)
• Some GCDs have additional powers
• Cover all or part of 174 counties
![Page 11: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/11.jpg)
0
5
10
15
20
25
30
35
< 10,000 10,001 -50,000
50,001 -100,000
100,001 -500,000
> 500,000
Nu
mb
er
of
GC
Ds
Population Size n=76
Population Per GCD
![Page 12: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/12.jpg)
Number of Counties Per GCD
0 10 20 30 40 50
Five or More
Four
Three
Two
One
Number of GCDs
Nu
mb
er
of
Co
un
tie
s
n=77
![Page 13: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/13.jpg)
Type of Community
15%
84%
1%
Suburban
Rural
Urban
![Page 14: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/14.jpg)
Largest Groundwater User in GCD
Agriculture 36%
Domestic/ Livestock
16%
Industrial/ Commercial
1%
Municipal Water Supply
36%
Oil & Gas 8%
Combination 3%
n=74
![Page 15: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/15.jpg)
Number of Board Members per GCD
0 10 20 30 40 50
5
6-7
8-9
10-11
> 11
Number of GCDs
Nu
mb
er
of
Bo
ard
M
em
be
rs
n=76
![Page 16: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/16.jpg)
Elected v. Appointed Board Members
70%
23%
7% Elected
Appointed
Both
n=77
![Page 17: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/17.jpg)
Tax-Based v. Fee-Based GCDs
25%
66%
9%
Fee
Tax
Both
n=76
![Page 18: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/18.jpg)
How Do GCDs Regulate?
• GCDs regulate/issue permits in the following ways:
– Well spacing
– Acreage-based regulations
– Use-based regulations
• Some wells are exempt from permitting requirements
– Wells specifically exempted by the board
– Certain domestic and livestock wells
– Certain wells related to oil and gas or mining activities
![Page 19: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/19.jpg)
Joint Planning
![Page 20: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/20.jpg)
Joint Planning
GCD
GMA
DFC TWDB
MAG
![Page 21: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/21.jpg)
Joint Planning
OMG
GCD
GMA
DFC TWDB
MAG
![Page 22: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/22.jpg)
GCD = Groundwater Conservation District
![Page 23: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/23.jpg)
GMA = Groundwater Management Area
![Page 24: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/24.jpg)
DFC = Desired Future Condition
• Quantifiable future groundwater metric (what aquifer will look like at
specified time in future; average drawdown should not exceed __ after __)
• Process amended in 2011; in establishing DFCs, GCDs must 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
![Page 25: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/25.jpg)
DFC Balancing Test
Conservation, preservation, protection, recharging and
prevention of waste of groundwater and control of subsidence
Highest practicable level of groundwater
production
![Page 26: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/26.jpg)
New DFC Adoption Process
![Page 27: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/27.jpg)
TWDB = Texas Water Development Board
• Texas state agency; generally not regulatory in nature
• Provides loans and funding for state water projects
• Oversees the State Water Plan
• Provides groundwater expertise in the form of modeling
(GAMs, MAGs), groundwater quality monitoring, and
groundwater level monitoring
• Approves GCD management plans
![Page 28: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/28.jpg)
MAG = Modeled Available Groundwater
• Amount of water that may be produced on an average annual basis to
achieve a DFC
• In issuing permits, GCDs must manage total groundwater production on a
long-term basis to achieve an applicable DFC and consider :
MAG Exempt Use Estimates
Previously Authorized
Withdrawals
Actual Production Estimates
Yearly Precipitation
& Production
Patterns
![Page 29: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/29.jpg)
Regional Planning
RWPG GCD
GMA
DFC TWDB
MAG
![Page 30: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/30.jpg)
DFC Appeals
• 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
• First round: appeals filed in 7 of the 16 GMAs; all resolved
• 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)
![Page 31: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/31.jpg)
Evolution of Groundwater Ownership
![Page 32: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/32.jpg)
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, Inc.
• 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
![Page 33: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/33.jpg)
Senate Bill 332
• “Recognizes that a landowner owns the groundwater below the surface of
the landowner's land as real property”
• Landowner is 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 the production of groundwater as provided in the Water Code
• GCDs are not required to implement a correlative rights approach
• Does not affect ability of EAA or subsidence districts to manage groundwater
![Page 34: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/34.jpg)
EAA v. Day and McDaniel
![Page 35: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/35.jpg)
Facts
• 1956: irrigation well drilled on property; in use until 1970s
• Prior to 1983: well casing collapsed/pump removed; well continued to produce water that was stored in holding tank and used for irrigation and recreation
• 1993: Edwards Aquifer Authority created; historic use period ends
• 1994: Plaintiffs purchase property at issue
• 1996: Plaintiffs timely request 700 acre-feet of Edwards water; EAA denies full amount due to failure to satisfy historic use requirements
![Page 36: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/36.jpg)
Issues
• Did the EAA err in limiting plaintiffs’ 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 by the plaintiffs constitute a taking?
• Are plaintiffs’ other constitutional arguments valid?
![Page 37: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/37.jpg)
Holding
• Did the EAA err in limiting plaintiffs’ 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 by the plaintiffs constitute a taking? Don’t know
• Are plaintiffs’ other constitutional arguments valid? No
![Page 38: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/38.jpg)
Analysis
• Reasonable to determine that the groundwater became state water when discharged to the lake
• Applied common law ownership of oil and gas to groundwater; held that rule of capture and ownership in place are not mutually exclusive
• Landowner has a property interest in the groundwater under his property, subject to the rule of capture and reasonable regulation by a GCD (police power)
![Page 39: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/39.jpg)
Analysis
• Not enough information in record to determine whether taking occurred
• Trial court will conduct a Penn Central (regulatory taking) analysis:
– economic impacts
– extent of interference with reasonable investment-backed expectations
– nature or character of the regulation
![Page 40: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/40.jpg)
What We Know
• Land ownership includes a constitutionally-protected interest in groundwater in place that cannot be taken for public use without adequate compensation
• EAA acted in complete accordance with state-mandated regulatory scheme
• Some regulation of groundwater production does not constitute a compensable taking
![Page 41: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/41.jpg)
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?
• Unintended consequences?
![Page 42: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/42.jpg)
What’s Next?
• District court will decide whether taking occurred as to plaintiffs Day and McDaniel
• Legislative response?
• Wait and see; business as usual
© Larry D. Moore
![Page 43: GCDs from A to Z](https://reader034.vdocuments.net/reader034/viewer/2022052619/555b9587d8b42acd238b5470/html5/thumbnails/43.jpg)
Questions?
Stacey A. Steinbach Texas Alliance of Groundwater Districts
P.O. Box 152169 Austin, Texas 78715-2169
[email protected] (512) 809-7785
www.texasgroundwater.org