1. 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
2. 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
3. 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
5. 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
6.
7. 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
8. What isn’t a GCD?
• Municipal water provider
• Water/wastewater treatment
provider
• Groundwater owner
Freedigitalphotos.net
9. 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
10. 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
11. Population Per GCD
35
30
Number of GCDs
25
20
15
10
5
0
< 10,000 10,001 - 50,001 - 100,001 - > 500,000
50,000 100,000 500,000
Population Size n=76
12. Number of Counties Per GCD
One
Number of Counties
Two
Three
Four
Five or More
0 10 20 30 40 50
Number of GCDs n=77
14. Largest Groundwater User in GCD
Municipal Oil & Gas
Water Supply 8%
36%
Combination
Industrial/
3%
Commercial
1%
Domestic/ Agriculture
Livestock 36%
16%
n=74
15. Number of Board Members per GCD
> 11
Number of Board
10-11
Members
8-9
6-7
5
0 10 20 30 40 50
Number of GCDs n=76
18. 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
24. 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:
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
25. DFC Balancing Test
Conservation, preservation,
protection, recharging and
prevention of waste of groundwater
and control of subsidence
Highest practicable
level of groundwater
production
27. 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
28. 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 :
Yearly
Previously Actual Precipitation
Exempt Use
MAG Estimates
Authorized Production &
Withdrawals Estimates Production
Patterns
30. 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)
32. 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
33. 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
35. 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
36. 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?
37. 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
38. 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)
39. 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
40. 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
41. 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?
