SAN ANTONIO, Texas (KAMR/KCIT) – The final day of the 2022 Texas Groundwater Summit began with a wave of coffee and conversation over exchanges of reports, newsletters, business cards, and complimentary key chains. After two days of detailed discussions about data and policy needs and management strategies, the final day highlighted navigating currently-standing water laws and regulations and using current resources to find data.

Here is an overview and a few things to know about day three of the 2022 Texas Groundwater Summit, including a look at the panels, speakers, and overall takeaways from the event.

10 Years of EAA vs. Day

The day began with a discussion by GM Ellis Law Firm Attorney Gregory Ellis and McGinnis Lochridge Partner Russell Johnson, surrounding the 10-year anniversary of the Edwards Aquifer Authority v. Day ruling by the Texas Supreme Court.

In the case, as quoted from the ruling, the court was tasked with deciding “whether land ownership includes an interest in groundwater in place that cannot be taken for public use without adequate compensation” in another major discussion on the relationship between private property, public interest, and Texas’ groundwater supply.

This question was brought up after R. Burrell Day and Joel McDaniel bought around 380 acres of land overlying the Edwards Aquifer. An old well on the property has artesian pressure that caused part of the water to flow down a ditch into a lake on the property. While the lake was also fed by a creek, much of the water came from the well. When the landowners tried to get a permit for a new well to be drilled, conflict arose surrounding whether or not the permit needed would be allowed due to how much of the water in the lake and the well qualified under “beneficial use,” and about to what extent the water could be considered state water. Further, if state regulation of the water on the private property led to the landowners being entitled to compensation because of the state government claiming jurisdiction over part of their property.

In the end, the court held that common law regards ownership of groundwater beneath a property owner’s land in the same way that it treats oil and gas located beneath a property owner’s land. However, despite the private ownership of groundwater, groundwater districts also have the power to regulate groundwater use if it is “considered in connection with the law of capture and is subject to police regulations.”

The court said that both regulatory bodies and private property owners have rights regarding owning and regulating groundwater and that landowners do sometimes qualify for compensation when the government regulates groundwater on their land for public use. However, the court did not describe specifically when landowners qualify for compensation and when groundwater regulations can be enforced without needing to pay landowners.

Johnson contended that the ruling was ironic in that it appeared to lead to landowners who use more groundwater being more protected than those who use less because takings claims are often based on the economic impact on landowners. However, he also said that he was unsure that a similar decision or piece of legislation would survive today in the same way that it did in 2012.

Altogether, the panelists agreed that questions about when groundwater use permits should be granted and the extent of private property rights when it comes to groundwater remain, and that legislative action is needed in order to fully cover groundwater topics in written policy instead of relying on precedent and common law often related to oil and gas. Regulations, they contented, are essential for the conservation and use of groundwater by both private property owners and government agencies.

Issues in Water Quality

Following the discussion on the EAA vs. Day ruling, a group of experts gathered to discuss issues in water quality, including:

  • Moderator: Diana Thomas, General Manager, Sterling County UWCD
  • Vince Clause, Hydrogeologist, Allan R. Standen LLC
  • Marc Friberg, Executive Director of External & Regulatory Affairs, Edwards Aquifer Authority
  • Janet Guthrie, General Manager, Hemphill County UWCD

Firstly, the panel discussed the complexity of water quality issues and noted things that are important for those involved to understand and consider in their responses to challenges.

Hydrogeologist Vince Clause, for instance, said that a person needs to understand geology in order to understand the risk and circumstances of a specific community. Each water district in Texas, as shown by the previous day’s pilot study reports, has a range of different geological features that impact the state of its local water, such as the High Plains’ soil over the Ogallala Aquifer being able to soak up different amounts of moisture in comparison to some types of soil in the Lubbock area.

Further, panel members noted that no well or aquifer is immune to water quality issues, and warned that the point at which water quality issues are detected is the point at which damage has already been done to the water supply. Because of this, proactive monitoring and data gathering are necessary to avoid water contamination altogether.

Separate types of communities also face different challenges, panel members said. Hemphill County UWCD General Manager Janet Guthrie described that the agriculture, oil, and gas operations in rural areas pose major potential risks to water quality. Meanwhile, as noted by Marc Friberg of the Edwards Aquifer Authority, urban areas face cars and industry development around aquifer recharge zoned like Edwards’ as major risks.

However, panel members also noted that there are a number of things that different communities across Texas share in their responses to water quality issues. According to panel members, many water districts agree that a good first step is fostering solid communication between agencies, producers, local government, and community members. That communication can lead to more complete and accurate data collection and monitoring, though panelists also agreed that water districts should check back with the collected data regularly to look for trends and outliers.

For example, Guthrie went into more detail about communication and monitoring when it comes to rural, single-county GCDs like Hemphill. The Hemphill County GCD collaborates with operators, industry, and developers for monitoring, and dedicated a full-time position to water quality testing and progress. Guthrie promoted establishing quality benchmarks and expectations for operators, but reiterated the importance of communication; while quality benchmarks and monitoring strategies can work well, landowners may assume testing is happening when it isn’t actually automatic.

Regarding potential next steps and other needs, panelists noted that metering regulations are important as well as programs and processes for abandoned wells, education, gathering base data and benchmarking, and building collaborative rapports with other entities.

“Don’t be afraid to start somewhere,” noted Guthrie, who also encouraged water management agencies to start early, in order to establish systems and prevention for water quality issues.

The New GCD Index

Julia Stanford, the programs & operations manager for the TAGD, followed the water quality panel with an overview of the new GCD index, an interactive database on the TAGD website that hosts overviews of data from GCDs across the state of Texas.

Users reviewing the new GCD index are able to view a map of GCD and GMA boundaries, counties, aquifers, geologic data, and detailed groundwater district overviews compiled through reported information. The index was also paired with a user guide accessible on the same page as the map.

For other updates about the index, the TAGD, and other events and information, the TAGD also publishes a monthly newsletter.

Texas Commission on Environmental Quality Updates

In the wake of the previous day’s discussion on the state of Texas water, the Sunset Commission, and other agency updates, TCEQ Commissioner Emily Lindley offered a status report.

As described on its website, the TCEQ’s mission is to protect Texas’ public health and natural resources consistent with sustainable economic development. Its overall goals are clean air, clean water, and safe waste management. The agency oversees licenses, permits, and reporting on natural resources like air, land, and water, and publishes a range of reports on the status of and issues concerning those resources that are published on its website.

Lindley described that the agency mostly works in two parts; internal affairs and crafting reports, and public outreach and education. The “white papers” reports on their website are open to the public, as well as a range of informational and FAQ documents that offer explanations on water rights, groundwater, drinking water, and other topics.

The most recent evaluation report from the TCEQ is on the way for review by the Texas Legislature, said Lindley, which has recommendations to the legislature for the Texas Groundwater Protection Committee including:

  • Reconsidering TGPC rules;
  • Adding the Texas Parks and Wildlife Department to the list of TGPC members;
  • Amending pesticide regulation language;
  • Funding requests for abandoned water wells, landowner incentives for well plugging, and new agencies and resources on water;
  • Real estate disclosure rules to require sellers to list all wells on a property.

Lindley also noted that the TCEQ saw a heavy workload over the summer with drought response and water contingency plans across the state. Around half of the water systems in Texas reported being under water use restrictions over the summer, many of them mandatory, and at least a dozen groundwater-using water systems in the state reported having less than 180 days of water left in their supply.

Further, Lindley said the summer also involved the TCEQ working on its Emergency Preparedness Plan, which will involve more training for water systems and updated manuals, as well as new requirements for how much fuel storage for generators water systems should have for emergencies.

As for the Sunset Commission review, detailed on the TCEQ website, the process is split into three stages. First, the commission will evaluate TCEQ, seek public input, and recommend solutions to problems found with the agency. Then, the commission will hold public meetings on the staff report and the agency and decide on adopting recommendations to the legislature. Lastly, the Legislature will convene in January 2023 to consider the statutory recommendations in a Sunset bill for TCEQ.

As part of the report to the commission, Lindley said that the TCEQ asked for funding for staff pay, website improvement, and lease and maintenance costs for its offices.

More on the Sunset Advisory Commission and ways to sign up for updates on its public meetings about the TCEQ can be found on its website.

Navigating a Contested Case Hearing

For the final panel discussion of the 2022 Texas Groundwater Summit, a group of expert panelists gathered to talk about contested case hearings, which can happen when conflicts arise surrounding water use and land permits and are governed by Chapter 36 of the Texas Water Code. The panel included:

  • Moderator: Mike Gershon, Principal, Lloyd Gosselink Rochelle & Townsend
  • Bill Hutchinson, Independent Groundwater Consultant
  • Stacey Reese, Attorney, Stacey Reese Law
  • Blayne Stansberry, President of the Barton Springs Edwards Aquifer Conservation District
  • Jim Totten, General Manager, Lost Pines GCD

The panel unanimously supported the idea of those involved in the permitting process knowing local and regional data before filing an application and Groundwater Consultant Bill Hutchinson cited the TWDB database as “unmatched in the country.”

Attorney Stacey Reese commented that it is also important to know the minimal requirements of the districts and boards involved, and suggested that a hydrogeologic report could be useful and thorough information to have even if it isn’t required.

Overall, the panel discussed the permit application process in four parts: Due diligence and pre-filing preparation, the GDC review after the application is filed, the issuing of the application notice, and the board meeting day on which the application could either be approved or denied. After those parts, in contested cases, the parties involved would deal with the Texas State Office of Administrative Hearings in order to contest decisions.

The panelists altogether encouraged knowing the reports and data available thoroughly, being prepared for case weaknesses, and acknowledging that even if the process is neither short nor cheap, decisions through the State Office of Administrative Hearings are thorough and the process is detailed.

Moving Forward, Getting Involved

As the rain-showered lawns of the San Antonio country club emptied of legislators, scientists, and water managers, the 2022 Texas Groundwater Summit left its attendants with reminders about the importance of water and its innumerable implications. Across industries and academia, vast prairies and bustling cities, there are those that frame their day-to-day efforts with the understanding that the future of water in Texas is the future of Texas as a whole.

Those who gathered at the summit and their compatriots parted acknowledging the critical threat of water loss continuing to loom over Texas, its solutions hanging heavy with the need for consistent and insistent action spanning from cotton fields to the State Capitol. However, while there is much more to be done, the progress and collaboration of the summit attendants could also encourage hope like a steady drizzle over months-parched earth.

Local-level data and communication, as well as funding, were consistently framed as cornerstones of groundwater conservation and water management in Texas. The Texas Alliance of Groundwater Districts hosts information on Texas GCDs that in turn work with local researchers, employers, landowners, and governments to craft water management strategies tailored to their home communities and intended to benefit those who live and work there for the long-term.

Aside from the GCD database and the TAGD website, other resources on current water news and developments can be found through the TCEQ, the TWDB, the Texas A&M AgriLife Extension Service, the Texas Water Resources Institute, and local water district, county, and city websites.

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