Articles Posted in Water Rights

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The Atlantic Council, a Washington-based think tank, has published a draft white paper on the exploration industry’s use of water in Texas. The draft paper, “Sustainable Water Management in the Texas Oil and Gas Industry,” was written by John Tintera, of the Austin firm Sebree & Tintera. Tintera, formerly executive director of the Texas Railroad Commission, is now president of the Texas Water Recycling Association.  The draft paper can be viewed here: DID264_1_073014.pdf. The Atlantic Council also has a white paper, “Produced Water: Asset or Waste?“, on its website.

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Last week, the Amarillo Court of Appeals issued its opinion inn City of Lubbock v. Coyote Lake Ranch, LLC, No. 07-14-00006-CV, holding that the accommodation doctrine did not apply to restrict the City’s use of Coyote’s land to develop the City’s groundwater under the land.

In 1953, the City of Lubbock bought the rights to groundwater under the land now owned by Coyote Lake Ranch. In that deed, the City acquired all groundwater rights, and “the full and exclusive rights of ingress and egress in, over and on said lands so that the Grantee of said water rights may at any time and location drill water wells and test wells on said lands for the purpose of investigating, exploring, producing, and getting access to percolating and underground water.” The deed granted the right to lay water lines, build reservoirs, booster stations, houses for employees, and roads, “together with the rights to use all that part of said lands necessary or incidental to the taking of percolating and underground water and the production, treating and transmission of water therefrom and delivery of said water to the water system of the City of Lubbock only.”

In 2012, the City proposed a well field plan for the property and began testing and development under that plan. Coyote sued, asking for a temporary injunction to halt the City’s activity. Coyote claimed that the City failed to accommodate Coyote’s existing uses of the property (the opinion does not say what those uses are), and that the City could use alternatives that would lessen damage to Coyote’s use of the land. The trial court granted the temporary injunction, holding that Coyote was likely to be able to show at trial that the City’s plan could be “accomplished through reasonable alternative means that do not unreasonably interfere with [Coyote’s] current uses.” The City appealed from that order.

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The drought in Texas, along with improved recyclying technology, has driven efforts to increase recycling of water used in hydraulic fracturing of wells. According to one estimate, the fracing of wells in 2011 consumed on the order of 135 billion gallons of water – about 0.3 percent of total U.S. freswater consumption. (Golf courses in the U.S. consume about 0.5 percent of all freswater used in the country.) But if you own land in the Eagle Ford field, those numbers don’t mean much. Water use in some counties is lowering the water table in the Carrizo-Wilcox aquifer, the principal source of frac water for the Eagle Ford, causing some existing wells to dry up. In West Texas, the lack of available groundwater has forced companies to look at recyclying their frac water to extend the useful life of the water they can find for fracing.

Two bills now pending in the Texas legislature – House Bills 3537 and 2992 – would require the Texas Railroad Commission to develp rules to require rthe recycling and reuse of frac water returned from wells. The Commission has recently adopted rules to make it easier for operators to recycle water. And another bill, House Bill 379, would impose a 1-cent-per-barrel fee on wastewater disposed of in commercial injection wells.

Devon Energy, a leader in recycling of frac water in the Barnett Shale, testified to Texas lawmakers that recycling is 50 to 75 percent more expensive than sending frac water to injection wells. There are now about 50,000 injection wells in Texas, and the number is growing rapidly. Recyling is much more common in the Marcellus, where injection wells are not available and water must be hauled long distances for disposal.

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The University of Texas’ Burear of Economic Geology has issued a draft report updating an earlier report on water use by the oil and gas industry in Texas. Among its conclusions: Movement of shale plays into oil-rich areas of the Eagle Ford and West Texas’s Permian Basin have resulted in increased use of brackish water for frac’ing, improvement in reuse technologies, and lower fresh water consumption, but also more demand on groundwater in regions of South and West Texas.

Some excerpts:

In the Eagle Ford, although the number of wells completed has increased rapidly, the intensity of water us (gallons per foot of completed interval) has decreased almost in half in four years. The report attributes this decreas in intensity to higher use of “gel” fracs that can carry proppant with much less water. Water use is significantly higher in the down-dip gas window of the play (as high as 1400 gal/ft) vs. the oil window (800 gal/ft). Here are graphs from the draft report about the Eagle Ford’s water use:

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The Texas Groundwater Protection Committee has a new website that provides a wealth of information and links for those interested in groundwater resources and regulation in Texas. The Committee was created by the Texas Legislature in 1989 to provide coordination among nine state agencies that deal with groundwater: the Texas Water Development Board, the Texas Commission on Environmental Quality, the Texas Railroad Commission, the Department of State Health Services, the Texas Department of Agriculture, the Texas State Soil and Water Conservation Board, the Texas Alliance of Groundwater Districts, Texas A&M AgriLife Research, the Bureau of Economic Geology, and the Texas Department of Licensing and Regulation. The TGPC’s website provides helpful links to maps of Texas aquifers, groundwater management areas and groundwater conservation districts, regulations covering drilling of water wells, groundwater conservation and contamination, injection and disposal wells, and classroom resources. Bookmark this site.

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A lot has been written lately about the amount of groundwater being used for hydraulic fracturing in shale plays – particularly in the Eagle Ford Shale, and more recently in the Permian Basin. This raises the question whether — and to what extent — exploration companies’ water wells used in fracing are subject to regulation by groundwater districts in Texas. It turns out that this is not an easy question to answer.

I am indebted to Mary K. Sahs (Carls, McDonald & Dalrymple, LLP), an Austin attorney who specializes in water law and who has written an excellent paper, Frac Water – Regulation of Quantity and Quality, and Reporting by Texas Groundater Conservation Districts, for the State Bar conference “The Changing Face of Water Rights” held on February 23 of this year in San Antonio, for a thorough explanation of this subject. I have borrowed liberally from her work.

Groundwater conservation districts are governed by the Texas Water Code, Chapter 36, and by any special provision in the law that authorized creation of each district. Section 36.117 (b) (2) of the Water Code provides that the following are exempt from regulation:  “drilling a water well used solely to supply water for a rig that is actively engaged in drilling or exploration operations for an oil or gas well … located on the same lease or field associated with the drilling rig.” This has been referred to as the exemption for “rig supply wells.” Rig supply wells are still subject to any water well spacing rules imposed by the water district, and the district may require the well to be registered and may require it to be properly equipped and completed.

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The Texas Supreme Court issued its opinion today in Edwards Aquifer Authority v. Day, more than a year after it was argued and some thirteen years after the controversy began. It has been eagerly awaited as the court’s ruling on whether a landowner has a “vested” right in groundwater under his/her land. The Court held that groundwater, like oil and gas, is “an exclusive and private property right … inhering in virtue of [the landowner’s] proprietorship of the land, and of which he may not be deprived without a taking of private property.” The case is being heralded by property rights advocates as a victory for private property rights. The court’s decision, in an opinion by Justice Nathan Hecht, was unanimous.

The opinion is certainly not surprising. It would have been a surprise to most people to learn that they do not have ownership rights in groundwater under their property. But I question whether it is such a victory for property owners and whether it will materially change the current regulatory scheme for groundwater in Texas.

Justice Hecht’s opinion, 49 pages, includes a good summary of the history of groundwater regulation and litigation in Texas over the last 100 years. Remarkably, in all that time the Court had never ruled on the question of whether landowners have a property right in groundwater. The court held that the same rules should apply to groundwater as apply to oil and gas – in both, the landowner has an ownership right in the substance under his/her land, subject to being divested of that ownership by drainage from wells on adjacent lands, and subject to reasonable regulation by the state.

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Texas is in the middle of one of the most severe droughts in recorded history. The population of the state is growing rapidly, and projections are that such growth will continue. Much of Texas is arid semi-desert, with limited rainfall in normal years. Will water become the limiting factor in Texas’ growth?

With water so much on everyone’s minds, I thought it would be a good idea to review some basic facts about water. The following information is from a presentation made by Tom Mason, former General Manager of the Lower Colorado River Authority, who is now a shareholder at my firm, Graves Dougherty Hearon & Moody.

Water on earth:

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The Wall Street Journal published a front-page article in its December 6 edition, “Oil’s Growing Thirst for Water,” that highlights issues with the oil and gas industry’s demand for water in the Eagle Ford and other shale plays. The article quotes Darrell Brownlow, a hydrologist and geochemist and a landowner in South Texas about whom I have written previously. The WSJ article highlights the coming conflict between the oil and gas industry’s demand for water and the growing demands on groundwater in Texas.

According to Dr. Brownlow, it makes simple economic sense to use groundwater as a resource for oil and gas exploration: The WSJ says: “Mr. Brownlow … says it takes 407 million gallons to irrigate 640 acres (one square mile) and grow abaout $200,000 worth of corn on the arid land. The same amount of water, he says, could be used to frack enough wells to generate $2.5 billion worth of oil. ‘No water, no frack, no wealth,’ says Mr. Brownlow, who has leased his cattle ranch for oil exploration.”

Most of the Eagle Ford lies above the Carrizo aquifer, which stretches from Webb County on the Rio Grande River up through Fayette County. Dr. Brownlow, a hydrologist, concludes that there is plenty of water in the Carrizo, in most places, to meet the demands for frac water. His estimates:

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