Groundwater Management
in
Texas
Common Law
• No Tort Liability—The East Case
– No Wasting Water—Pleasanton v. Corpus
Christi
– No negligent pumping (that causes
subsidence)—Friendswood Development v
Smith Southwest Industries
Common Law
• Corollary to “Absolute Ownership
Doctrine”
– Own everything from “heaven to hell”
– Ownership with no protection from a trespass?
– Does “Absolute Ownership” still apply?
Ownership Issues
• Who owns groundwater in situ and how is it
protected?
• Cannot build a fence around groundwater.
• Courts won’t protect your property rights
(East and Sipriano).
• Only option is to have a Groundwater
Conservation District.
Ownership Issues
• Lawsuits trying to define the ownership
interest:
– City of San Marcos v. TCEQ—groundwater is
like wild animals wandering from property to
property
– EAA v Day & McDaniel—takings claim based
on “absolute ownership” of groundwater
Ownership Issues
• Lawsuits trying to define the ownership
interest:
– Bragg v EAA: Takings Claim.
• Judge issued preliminary ruling that Braggs are
owed over $700,000 for denying one permit and
issuing the other at less than the amount requested.
– 7KX Investments v TxDOT
• Condemnation case where damages for groundwater
“taken” exceeds $7,000,000.
Ownership Issues
• Will these lawsuits help or hurt
landowners?
– Force GCDs to issue permits based on pure
correlative rights?
– Are GCDs a threat to property ownership?
• Which is the bigger threat?
Groundwater
Hydrology
Typical Sandstone Aquifer
Domestic and Livestock
D&L and Irrigation
Add Major Municipal Use
Typical Recharge ZoneDown Dip Aquifer
Key Consideration:
Aquifer Levels in Recharge Zone
Overproduction or Drought
“Mining” the Aquifer
Gulf Coast Aquifer
Multiple Aquifers
Surface Water System
Pre-Development (Gaining Stream)
Surface Water System
Post-Development (Losing Stream)
Groundwater Storage
• Estimated value
– Area of aquifer
– Saturated thickness
– Storativity (or specific yield)
Length
Width
Saturated
Thickness
Aquifer
Groundwater
Drainable Groundwater
• Distinct from groundwater storage estimate
• Dependent on:
– Well spacing
– Well depth
– (Economic) ability to withstand decreasing
pumping rates
Drainable Groundwater
• Drainable groundwater is same as
groundwater storage when:
– Infinite number of wells, each pumping an
infinitesimal amount to drain all storage
Groundwater Budgets
• Accounting of:
– Inflows
– Outflows
– Storage Change
Predevelopment
Inflow
Groundwater
System
Outflow
Equilibrium: Inflow = Outflow
Postdevelopment
Pumping
Increased
Inflow
Decreased
Storage
Decreased
Outflow
Dynamic Changes Due to Pumping
• Increased inflow
– e.g. induced stream recharge
• Decreased (natural) outflow
– e.g. decreased spring discharge
• Change in storage
– e.g. decreased groundwater levels
Relative increases and decreases are
aquifer specific
Groundwater
Conservation
Districts
Groundwater Conservation Districts
• Conservation Amendment—Article
XVI, Section 59
• Chapter 36, Water Code
• Local Control of groundwater supplies
Current Planning Efforts
• Step 1: State divided into groundwater
management areas
Groundwater
Management
Areas (GMA)
Current Planning Efforts
• Step 2: Each area establishes a “Desired
Future Condition” (DFC)
• Step 3: TWDB runs models to determine
the “Managed Available Groundwater”
(MAG)
Current Planning Efforts
• Desired Future Conditions
– Condition of the Aquifer in 50 years
– Policy decision
• What is a “Desired Future Condition”?
–
–
–
–
No drawdown
No more than X amount of drawdown
Maintain springflow (gaining streams)
Maintain springflow during droughts
Current Planning Efforts
• Managed Available Groundwater
– Generated by TWDB through Groundwater
Availability Models
– Used for Regional Planning
– Used by GCDs for permitting
Current Planning Efforts
• Results:
– MAG = limit to the amount of groundwater
withdrawals
– Eventually 100% of available water will be
permitted
– As exempt withdrawals grow, permits will
shrink
– GCDs must decide how to allocate available
supplies
Current Planning Efforts
• Allocation options:
– Protect historic uses “to the maximum extent
practicable” §36.116(b)
• Protects investment-backed expectations
• Cannot be transferred to another place of use or
purpose of use (Guitar v. Hudspeth)
– Based on acreage or tract size, or acre-feet per
acre (allocation correlates to land ownership)
Current Planning Efforts
• Once 100% of the MAG is allocated, what
then?
– Stop issuing permits?
– Continue issuing permits by reducing existing
permits?
• Exempt all Historic users from reductions?
• How will this affect 30-year transportation permits
(municipal use)?
GCD Powers
Section 36.116, Water Code. Regulation
of Spacing and Production
(a) In order to minimize as far as practicable the drawdown of
the water table or the reduction of artesian pressure, to
control subsidence, to prevent interference between wells, to
prevent degradation of water quality, or to prevent waste, a
district by rule may regulate:
(1) the spacing of water wells...
and
(2) the production of groundwater....
Regulation of Spacing is accomplished
by:
• siting new wells minimum distances from
property lines/adjoining wells;
• imposing minimum distances based on
production capacity, pump size;
• other spacing requirements adopted by the
board.
Regulation of Production is
accomplished by:
• imposing per-well or well-field production
limits;
• limiting production based on acreage or tract
size;
• limitation based on maximum water to be
produced from a defined number of acres
assigned to an authorized site;
Regulation of Production is
accomplished by: (cont.)
• by "managed depletion"; or
• by "limiting the maximum amount of water
that may be produced on the basis of acre
feet per acre or gallons per minute per well
site per acre.“ (well capacity)
What exactly is a "beneficial use"?
•
•
•
•
•
•
•
•
•
•
agriculture;
gardening;
domestic;
stock raising;
municipal;
mining;
manufacturing;
commercial;
recreational;
"pleasure purposes".
• "Beneficial" use also includes all the
Railroad Commission regulated
activities (oil, gas) and sulphur or other
minerals.
• And "any other purpose that is useful
and beneficial to the user."
"WASTE" is defined by the Texas Legislature (Section 36.001(8), Water Code) to
include:
• pumping at a rate and volume that causes or threatens intrusion of
water unsuitable for gardening, agriculture, stock raising or human
consumption;
• pumping groundwater without putting it to a beneficial use;
• allowing the groundwater to move to a geologic strata where it cannot be
recovered;
• polluting or contaminating the groundwater with salt or any other
deleterious matter;
• willfully or negligently allowing groundwater to "escape" into a creek,
river, roadside ditch, sewer, lake, etc.;
• allowing irrigated groundwater to escape as tailwater onto adjoining
property without the landowner's permission;
• for groundwater pumped from an artesian well, willfully causing or
allowing the water to run off the well owner's land or to "percolate through
the stratum above which the water is found".
Section 36.113. Permits for Wells;
Permit Amendments.
(c) A district may require that the following be included in the
permit or permit amendment application:
(4) a water conservation plan or a declaration that the
applicant will comply with the district's management plan;
and
(7) a drought contingency plan.
Section 36.1131. Elements of Permit.
(b) The permit may include:
(9) any conservation-oriented methods of drilling and
operating prescribed by the district;
(10) a drought contingency plan prescribed by the
district;
Conclusion
• Planning process will put a finite number on
groundwater available for permitting
• State will continue to create GCDs to
manage aquifers
• Lawsuits will continue to be filed until all
of these issues are answered