Application of Historic Use Standards by Groundwater Districts

1. Application of Historic Use Standards byGroundwater Districts presented by Lynn Sherman to Select Committee on Water Policy November 4, 2004

2. “Historic use” is referenced only twice in Chapter 36 • Section 36.116(b) -- When promulgating rules limiting groundwater • production, a groundwater district “may preservehistoric usebefore • the effective date of the rules to the maximum extent practicable • consistent with the district’s comprehensive management plan….” • Section 36.113(e) -- A groundwater district “may impose more restrictive permit conditions on new permit applications and increased use by historic users” if they: 1. apply to all new permit applications and increased use by historic users, regardless of type or location of use; 2. bear a reasonable relationship to the existing district management plan; and 3. are reasonably necessary to protectexisting use.

3. If “existing use” is considered, there are 3 more references • Section 36.113(d)(2) – Before acting on a permit, a groundwater • district must consider whether the proposed use “unreasonably affects • existing groundwater and surface water resources or existing permit • holders.” • Section 36.122(c) -- A district “may not impose more restrictive • permit conditions on transporters than the district imposes on existing • in-district users,” except to the extent the district imposes restrictions • on all new permits and increases in historic use, regardless of the type • or location of use. • Section 36.122(f)(2) – In reviewing a proposed export of • groundwater out of the district, a district “shall consider…effects on • existing permit holders and other groundwater users within the • district.”

4. Conclusions from statutory language • The only clear statement about “historic use” is: it can be preserved in production rules to the “maximum extent practicable” consistent with a management plan. No further guidance is given. • Existing use must be considered in permitting decisions to determine if the proposed use “unreasonably affects” existing permits and resources, but more restrictive conditions cannot be imposed to protect existing use unless imposed on all new permits. • The “effects” of an out-of-district transfer on existing uses must be considered, but conditions cannot be imposed that are more restrictive than those imposed in-district.

5. Issues regarding “historic use” • Users of the past vs. • Users of the future • Farmers • Those within the historic period vs. • Those outside the historic period • Farmers, Cities & Industry vs. Ranchers

6. San Antonio El Paso Amarillo Lubbock Bryan - College Station Brady Bastrop Bay City Alpine Sugarland Orange Columbus Fredericksburg Burnet Houston Del Rio Cities with Significant Reliance on Groundwater ( a sample)

8. Historically (since the 1950’s), groundwater districts have “grandfathered” existing wells, exempting them from production limits. Almost ½ of the groundwater districts have “grandfathered” existing wells from production limits.

9. The information reflected on this map was derived from a compilation of the following: telephone interviews with groundwater district personnel, review of groundwater district rules, and previous surveys and analysis by Jace Houston, Greg Ellis, and Hunter Burkhalter.

10. Very recently (since 2001), five groundwater districts have adopted the EAA’s use of a designated historic use period with a beginning and an ending date. These districts represent less than 7% of all the districts in the state. Notably, they appear to include areas where there is significant controversy.

11. The information reflected on this map was derived from a compilation of the following: telephone interviews with groundwater district personnel and review of groundwater district rules.

12. Edwards Aquifer Authority Created: 1993, but not active until 1996 Rules adopted with “historic use”: 1996 Historic Use Period: June 1, 1972 to May 31, 1993 Clearwater Underground Water CD Created: 1989 Rules adopted with “historic use”: 2004 Historic Use Period: June 1, 1972 to March 2004 Groundwater districts with “historic use” periods Hudspeth County GCD Created: 1955 Rules adopted with “historic use”: 2002 Historic Use Period: Jan. 1, 1992 to May 31, 2002 Lone Star GCD Created: 2001 Rules adopted with “historic use”: 2002 Historic Use Period: Jan. 1, 1992 to Aug. 26, 2002 Kinney County GCD Created: 2001 Rules adopted with “historic use”: 2002 Historic Use Period: Jan. 1, 1960 to Dec. 31, 1991 Existing Use Period: Jan. 1, 1992 to Jan. 7, 2003 Post Oak Savannah GCD Created: 2001 Rules adopted with “historic use”: 2004 Historic Use Period: Jan. 1, 1992 to March 4, 2004

13. The information reflected on this map was derived from a compilation of the following: telephone interviews with groundwater district personnel, review of groundwater district rules, and previous surveys and analysis by Jace Houston, Greg Ellis, and Hunter Burkhalter.

14. Conclusions and Considerations • “Historic use” is a political, not a legal, construct. From a “rule of capture” standpoint, it makes no sense, but from a political standpoint, it can make a lot of sense. • Specified “historic use” periods appear to be the burning issue, not “grandfathering.” • The issue seems to be “line drawing” among those who • are here today. (Those who aren’t can’t advocate). • Those who have issues with “historic use” are asserting • their rights under the Rule of Capture (whether they know • it or not). • Interestingly, the same issues exist with • “grandfathering.” Therefore, any attempt to address • ”historic use” could affect districts that have • grandfathered.