THE NEED FOR HB 3250 By James R. Gaines

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1 4425 S. Mopac Expy. Building 1 Austin, Texas phone fax BOARD OF DIRECTORS Emily Seale Buescher, Marathon Archie Ray Enochs, Austin Bob Meharg, Gatesville A.J. Waight, Jr., Willow City PRESIDENT James R. Gaines, Dripping Springs jimmy@texaslandowners.org REGIONAL COORDINATORS Bill Graham, Milano GENERAL COUNSEL Marvin W. Jones, Amarillo ADVISORY COUNCIL Bob Harden, Austin Glenn Sodd, Corsicana THE NEED FOR HB 3250 By James R. Gaines! HB 3250 would provide landowners with the ability to require Groundwater Conservation Districts (GCDs) to reduce the overall production of groundwater where the rate of production is drawing down their wells and depriving them of groundwater. The bill describes a minimum right of conservation of groundwater pertaining to individual landowners in a GCD based upon groundwater being private property in place as determined in the Day case of 2012: We decide in this case whether land ownership includes an interest in groundwater in place that cannot be taken for public use without adequate compensation guaranteed by article I, section 17(a) of the Texas Constitution. We hold that it does. Also from Day is the statement: While there are some differences in the rules governing groundwater and hydrocarbons, at heart both are governed by the same fundamental principle: each represents a shared resource that must be conserved under the Constitution.! The need for the bill is demonstrated by established DFCs throughout the state that have the potential to severely drain some areas of groundwater. Though some Groundwater Conservation Districts have adopted measures under water code section to protect individual landowners from excessive drawdown, many have not and do not seem to be required to. Also, the efforts of one district to conserve may be nullified by pumping allowed in the district next door. Where the district next door is the problem, HB 3250 would hold it accountable.

2 The DFC of 527 feet of drawdown in McClennan County is an example where some predict landowners will lose their groundwater. An article in the Waco Tribune Herald April 18, 2010 by J.B. Smith includes the following observations: The projected drawdown poses a risk to nearly half of McLennan Countyʼs population those served by Bellmead, Hewitt, Woodway and other suburban and rural water suppliers heavily dependent on the Trinity. Former State Sen. Kip Averitt, who pushed for groundwater districts as a solution to projected water shortages, said the drawdown projections are alarming and would amount to mining a finite resource. I donʼt know how much pumping the Trinity can stand, said Averitt, who was chairman of the Senate Natural Resources Committee and still speaks publicly on state water issues. Iʼm pretty sure 500 feet would be excessive.... I donʼt think anyone will allow it. It would be nothing short of a sin if we allow that aquifer to be depleted. If at some point itʼs ruined and canʼt be restored, that means all future generations will lose it. Certainly the drawdown rates we have are not sustainable, said Joe Yelderman, a Baylor University geologist who is advising the groundwater district. One thing that people donʼt understand is that (the Trinity) takes an estimated 25,000 years to recharge. At that rate, youʼre essentially mining the groundwater. Youʼre lowering the water level and changing the pressure. You canʼt do it forever.! DFCs for various counties in GMA 8, which includes McClennan County are (expressed in feet ) 527, 480, 492, 413, 406, 362, 344, 319, 312, 290, 265, 236, 220, 214, 179, 78, 51, 12. Some hydrologists believe that efforts of districts in GMA 8 to conserve by adopting a DFC with less draw down will be nullified by adjacent districts greater draw down, such as Coryell County 179 adjacent to McClennan 527. The DFC for the Trinity in GMA 9 is expected to deplete landowners in Hays County according to the EXECUTIVE SUMMARY OF PETITION OF WIMBERLEY VALLEY WA- TERSHED ASSOCIATION APPEALING the GMA 9 DFC. Included in the petition are the statements that In 2009, 42 existing and operating groundwater wells in the HTGCD were reported dry. This was during a period of significantly less pumping than would be allowed in the adopted DFC. Post Oak Savannah GCD, comprised of Burleson and Milam Counties, has a DFC of 370 feet. In recognition of the fact that permitted production of groundwater could draw down other private wells, the district is requiring permit holder Alcoa to pay the cost of mitigating the negative affects on those wells. Some landowners do not seem satisfied with mitigation. Landowner Curtis Chubb, Ph.D. stated in an article in the Austin American Statesman, September 3, 2012 The Carrizo-Wilcox Aquifer in our area re-

3 ceives about 25,000 acre-feet/year of recharge water from rainfall, according to Post Oak's management plan. That is a lot less than the 116,000 acre-feet/year being considered for pumping and export. If pumping exceeds recharge, aquifers become depleted just as a savings account would if withdrawals exceed deposits. For the benefit of future generations, it is critical that aquifers be managed to ensure their sustainability. If the groundwater pumping planned by LCRA is approved, the Carrizo-Wilcox will be depleted. It appears the permit approved for Alcoa in November 2012 did authorize the LCRA pumping referred to. Gonzales County Underground Water Conservation District states in the district rules 10 E (3) pertaining to an application for a permit: In order to ensure no unreasonable effects on existing groundwater and surface water resources or existing permit holders, the District shall require a mitigation plan, acceptable to the General Manger, to be included in the application to mitigate the effects of the drawdown of artesian pressure or the level of the water table upon the registered or permitted well owners potentially affected by that well or wells. The statement below from the Gonzales Inquirer indicates well owners are suffering takings of groundwater. Gonzales County water resources in 'crosshairs' of entities supplying water to San Antonio and outlying communities Gonzales Inquirer, August 3, 2006 Schertz-Seguin LGC already is transporting water from wells on land it owns in western Gonzales County via a pipeline that was constructed to Seguin and on to Schertz. Pumpage by the Schertz-Seguin LGC has been blamed for artesian wells in the area ceasing to flow. Among the well owners affected is the city of Smiley whose wells have almost stopped flowing. Unlike mitigation for the effects of drawdown, HB 3250 should arrest draw down. However, the mitigation practices adopted by some GCDs demonstrate that some believe a GCD should be responsible for the effects of drawdown that results from pumping authorized by a GCD. It is difficult to dispute that established DFCs and projected pumping in many areas will drain some peopleʼs land in order to meet the public demand for water. This will destroy the value of the affected private property.

4 Some argue they have a legal right to require GCDs to allow amounts of pumping that drain / deplete some landownerʼs groundwater so long as district rules allow all owners in the same aquifer subdivision to pump the same amount per acre. This is based on Texas oil and gas law which affords all owners overlying the same pool of oil the right to extract an equal amount per acre so long as it lasts. It is accepted that landowners will be drained because production of oil necessarily depletes reservoirs because they do not recharge. Because groundwater recharges, unlike oil, it may be produced without depleting aquifers. TLC argues that GCDs are obligated to allow equal production per acre while limiting production to amounts that are sustainable to meet their conservation obligation and avoid depriving one landowner of water for the benefit of others. Also, it seems in conflict with conservation to allow rates of production that deplete areas of aquifers, when this cannot be sustained without total depletion of aquifers. Draining aquifers to the extent that a landowner suffers a disproportionate or complete loss of groundwater in order to supply a public demand seems to relate to a statement in BRIEF OF AMICI CURIAE GLENN AND JOLYNN BRAGG filed in the Day case: At the heart of the takings clause of Article I, 17 of the Texas Constitution lies the premise that the government should not forc[e] some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. HB 3250 would require no action until it is proven that the pumping authorized by a district, or districts has caused specified reductions in groundwater production capability. Effectiveness of the bill would depend upon early detection of drawdown and initiating overall production reductions before depletion is too far advanced. The bill seems to place a substantial burden of proof on a landowner seeking to require a GCD to lower overall groundwater production. Prior production capability, loss of capability, and proof that the loss is directly caused by other permitted production would have to be documented. This serves to rule out unsubstantiated claims, while causing opposition to the bill to be the expression of the intent to drain some landowners for the benefit of others.

5 PROJECTED EFFECTS OF HB 3250: 1. Incentive for districts to abandon unachievable different DFCs in the same aquifer subdivision in different geographic areas, such as counties, and cooperate in establishment of the same DFC for an aquifer subdivision throughout a GMA. 2. Achieves both the protection of the groundwater rights of individual landowners and conservation of aquifers as required by the state constitution. Groundwater is private property subject to protection against takings (EAA v. Burrell Day) and GCDs are required to conserve groundwater (Texas Constitution Article 16 section 59). 3. Allows an equal right of common use and maximum efficient use of available groundwater by those using the water at any point in time, while preserving both the water and right of future use for any landowner not using during a particular period of time. Groundwater rights with a particular tract of land could be bought and held with confidence (preserved) for future use. This would be achieve by the establishment of sustainable production rights per acre throughout an aquifer subdivision. 4. With this law in effect landowners could, for the first time in Texas history, protect their groundwater rights by drilling wells and proving production without having to annually withdraw the water to establish historic use. The Day opinion addresses this objective on page 43: Furthermore, non-use of groundwater conserves the resource, whereas[] the non-use of appropriated waters is equivalent to waste. 161 To forfeit a landowner s right to groundwater for non-use would encourage waste.... Preserving groundwater for future use has been an important strategy for groundwater rights owners. For example, amicus curiae Canadian River Municipal Water Authority argues that it has acquired groundwater rights to protect supplies for municipal use but has not produced them, waiting instead until they become necessary.