Groundwater Management Update

Stacey A. Steinbach

Texas Alliance of Groundwater Districts

TWCA Annual Meeting

March 7, 2012

Topics for Discussion

• SB 660: Amendments to DFC Adoption Process

• Recent Rulemakings

• DFC Appeals

• Drought Update

• Looking Ahead

Senate Bill 660

SB 660 – Adoption of DFCs

• New DFC process allows for more public involvement and requires additional notice

• In proposing DFCs, GCDs must now consider 9 specific factors and a balancing test

• “District representatives” must meet at least annually and must establish propose for adoption DFCs at least every 5 years

New DFC Factors• DFC = quantitative description of desired condition of groundwater

resources in a GMA at one or more future times; adopted per 36.108• In establishing the Before voting on the proposed 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*

New DFC Balancing Test

Conservation, preservation, protection, recharging and

prevention of waste of groundwater and control of subsidence

Highest practicable level of groundwater

production

New DFC Adoption Process

District reps meet & propose new DFCs for

adoption; 2/3 of all district reps must vote to

approve DFCs

Proposed DFCs mailed to GCDs; 90-day comment

period begins

Each GCD must hold a public hearing on

relevant DFCs & make copies available to public

GCD votes on DFCs; prepares summary of

comments & suggested revisions

GMA meeting(s) to consider GCD hearing

summaries & adopt DFCs (2/3 of all reps)

[Within 60 days,]* district reps must submit DFCs, proof of notice, &

explanatory report to TWDB (and GCDs)

GCD meeting to adopt DFCs asap after receipt of explanatory report;

[info to TWDB within 60 days of adoption]*

GCDs must update management plans

within 2 years of DFC adoption at GMA

GCDs must amend rules within 1 year of updating

management plan

New DFC Adoption Process

Notice of DFC Meetings – GMA Level

• 10-day and OMA notice required; must be posted at SOS, COs, and GCDs in GMA and must include:– Date, time, and location– Summary of proposed actions– List of GCDs in GMA and contact information

• Failure or refusal of one or more GCDs to post does not invalidate actions

• District reps may elect one GCD to be responsible for providing notice of a joint meeting

Notice of DFC Meetings – GCD Level

• 10-day notice of hearings on DFCs and meetings to adopt DFCs

• Notice must include:– Proposed DFCs and agenda items

– Date, time, and location

– List of GCDs in GMA and contact information

– Information on submitting comments

• DFC hearings must also be posted pursuant to GCD rulemaking hearing requirements (includes publication)

Explanatory Report

• Adopted DFCs

• Policy and technical justifications for each adopted DFC

• Documentation showing how DFC factors were considered

• List of DFCs considered but not adopted and reasons why

• Analysis of public comments received

Using the MAG

• Modeled is the new Managed

• Defined as the amount of water that may be produced on an average annual basis to achieve a DFC

• GCDs, to the extent possible, shall issue permits up to the point that the total volume of exempt and permitted groundwater production will achieve an applicable DFC [permitted equals the MAG, if administratively complete permit applications are submitted…]

Using the MAGIn 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 Authorize

d Withdraw

als

Actual Productio

n Estimates

Yearly Precipitati

on & Production Patterns

Agency Rulemakings

TWDB Proposed Rules

• Dec. 2011: introduction to rulemaking plans for implementing SBs 660, 727, 737

• Jan. 2012: Stakeholder meeting; comments accepted through January 31

• April 2012: draft rules expected; informal public comment period before formal proposal by Board

TCEQ Proposed Rules

• SB 313 (creation of GCDs in PGMAs)

• SB 660 (Petitions for Inquiry)

• Considered by TCEQ March 7

• Comment period March 23 – April 23

• Public hearing April 17

RRC Hydraulic Fracturing Rules

• Implement HB 3328; wells permitted on or after January 2, 2012

• Require disclosure of hydraulic fracturing fluid ingredients and amount of water used; operator must post on FracFocus on/before submission of well completion report

• Exceptions: undisclosed, unintentional, and incidental ingredients and ingredients that are eligible for trade secret protection (can be challenged)

Joint Planning

• xcv

DFC Appeals

DFC Appeals - Currently

• Currently: 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

• Appeals filed in 7 of the 16 GMAs• Challenges included:

Geographic area use Excessive economic/private property impacts

DFC Appeals – What’s Next?

• 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)• What about GCD appeal? Which vehicle is appropriate?• GCDs and TWCA members should consider consensus

language

GCDs and the Drought

Effects of the Drought

No13%

Yes87%

Has the Drought Affected Your District?

No24%

Yes76%

Are the Aquifers in Your District Showing Signs of the Drought?

Effects of the Drought

Increase in permit applications

Increase in well registrations

Increase in community outreach

Less time to focus on district administration

Implementation of mandatory restrictions

Implementation of voluntary restrictions

Increase of "dry" wells in the district

73%

52%

52%

33%

15%

21%

46%

Effects of the Drought

• No one-size-fits all solution to groundwater management challenges

• Determining full impact of drought may take years

• Encourages increased education and better planning

Looking Ahead

• House and Senate Interim Charges

• EAA v. Day and McDaniel

• The Drought

• Conservation Strategies & “New” Water Sources

Questions?Stacey A. Steinbach

Texas Alliance of Groundwater Districts P.O. Box 152169

Austin, Texas 78715-2169tagdexec@texasgroundwater.org

(512) 809-7785www.texasgroundwater.org

EAA v. Day and McDaniel

GCDs in GMA meet at least annually &

propose new DFCs for

adoption every 5 years

OMA/10-day notice of GMA

meetings required; notice at SOS, COs, &

GCDs90-day comment period begins

when DFCs mailed to GCDs

OMA/10-day notice of GCD

meetings required; must

include proposed DFCsGCD must hold

public hearing on relevant DFCs &

make copies available to

public

GCD votes on DFCs,

summarizes comments from

hearing, & suggests any

revisions[Within 60

days,]* GCD reps must submit

DFCs, proof of notice, &

explanatory report

GCD meeting (notice per

above) to adopt relevant DFCs

asap after explanatory

report*GCDs must

update management plans within 2 years of DFC

adoption at GMA

GCDs must amend rules

within 1 year of updating

management plan

New DFC Adoption Process

DFC Appeals – GMA 1• July 2009: GCDs adopt DFCs• Aug. 2009: Mesa Water and G&J Ranch

appeal DFCs of Ogallala Aquifer• Feb. 2010: TWDB finds DFCs

reasonable• March 2010: Appellants file suit• Sept. 2010: Petition for Inquiry at TCEQ• Feb. 2012: Lawsuit dismissed – no

controversy

DFC Appeals – GMA 7• July 2010: GCDs adopt DFCs

• July 2011: Grass Valley Water appeals DFCs of the Edwards-Trinity (Plateau) Aquifer in Val Verde and Kinney Counties

• Jan. 2012: Public hearings

• April 2012: Petition to be presented to TWDB

DFC Appeals – GMA 9

• Aug. 2008: GCDs adopt DFCs

• Aug. 2009: Plateau RWPG, Kerr Co, and UGRA appeal DFCs for Edwards

• Jan. 2010: TWDB finds DFC unreasonable

• July 2010: GMA amends DFC for Edwards; adopts DFC for Trinity

• March/July 2011: Flying L Guest Ranch and WVWA appeal DFC of Trinity

• March 2012: TWDB finds DFCs reasonable

DFC Appeals – GMA 10

• Aug. 2008: GCDs adopt DFCs

• Jan 2010: Grass Valley Water appeals DFC of Edwards (Balcones Fault Zone) Aquifer in Kinney County

• Jan. 2012: Public hearing on DFC

• April 2012: Petition to be presented to TWDB

DFC Appeals – GMA 11

• April 2010: GCDs adopt DFCs

• April 2011: Crown Pine Timber 1 and Forestar appeal DFC of Carrizo-Wilcox Aquifer

• Feb. 2012: Public hearing on DFC

• May 2012: Petition to be presented to TWDB

DFC Appeals – GMA 12• Aug. 2012: GCDs adopt DFCs

• July/Aug. 2011: End Op and Environmental Stewardship appeal DFCs of all or most aquifers

• March 2012: Public hearings

• June 2012: Petition to be presented to TWDB

DFC Appeals – GMA 13• April 2010: GCDs adopt DFCs

• Feb./April 2011: CRWA and Hays Caldwell Public Utility Agency appeal DFC of most aquifers

• Dec. 2011: Public hearing on DFCs

• March 2012: TWDB finds DFCs to be reasonable

Petition for Inquiry – SB 660

• Affected person:– A landowner in the GMA– A GCD in or adjacent to the GMA– A RWPG with a water management strategy in the GMA– A person who holds or is applying for a permit from a GCD

in the GMA– A person who has groundwater rights in the GMA– Any other person defined by TCEQ rule

Petition for Inquiry – SB 660• Submit a management plan to TWDB• Participate in joint planning• Adopt rules• Adopt applicable DFCs adopted by the GMA• Update the management plan within 2 years of adoption of new DFCs• Update rules to implement applicable DFCs within a year after updating

the management plan• Adopt rules designed to achieve DFCs*• Adopt rules that adequately protect groundwater*• Enforce rules for the adequate protection of groundwater*