Articles Posted in Water Rights

The Supreme Court has handed down its opinion in Cactus Water Services, LLC v. COG Operating, LLC, a dispute over ownership of produced water. Its holding: COG, the operator, owns the produced water.

Between 2005 and 2014, the Colliers granted leases covering 37,000 acres of land in Reeves County to COG. The leases granted lease of only “oil and gas” or “oil, gas and other hydrocarbons.” COG has drilled 72 horizontal wells, and production from those wells has generated nearly 52 million barrels of produced water. Between December 2018 and March 2021 COG paid nearly $21 million in disposal fees to a third party to dispose of the produced water.

In 2019 and 2020 the Colliers signed “produced water lease agreements” with Cactus Water Services, conveying to Cactus water from oil and gas producing formations and flowback water under the lands covered by the COG leases. Cactus then notified COG of its claim to the produced water, and COG sued for a declaration that it, not Cactus, owns the produced water. The trial court agreed with COG, and the court of appeals affirmed with one dissent. 676 S.W.3d 733 (Tex.App.—El Paso 2023). Cactus obtained review in the Supreme Court.

Production of oil and gas is often accompanied by production of water from the same formation. In recent years, water has been injected into wells in the process known as hydraulic fracturing, or “fracking.” Much of the frac water returns with oil and gas during the initial production of the fracked well. Fracking of horizontal wells requires huge quantities of water, and when this water—and water native to the formation—returns to the surface, something must be done with the water.

Historically produced water has been treated as waste—a substance that contains not only water but also salts, chlorides, sodium, carbon dioxide, and heavy metals. Produced water has typically been disposed of by injection into underground formations. Well operators may drill their own disposal wells or may contract with third parties to dispose of produced water for a fee.

Water used in fracking has typically been obtained from formations containing fresh groundwater. The huge quantities of fresh water used for fracking have taxed some aquifers, and the practice has been criticized as wasting a precious resource.

The Fifth Circuit Court of Appeals has held that a landowner has stated a judiciable claim against the Brazos Valley Groundwater Conservation District (BVGCD) for an unconstitutional taking of his groundwater rights. David Strata, et al. v. Jan A. Roe, et al., No. 18-60994. Fascinating facts.

Groundwater Districts were created by the Texas Legislature to manage production of groundwater. Most Districts cover one county. The BVGCD covers Robertson and Brazos Counties. There are nearly 100 Districts encompassing 72 percent of major and minor aquifers in the State. Each District adopts its own rules governing permitting of and production from water wells.

BVGCD’s rules create three categories of water wells: Existing Wells, New Wells, and Wells with Historic Use. Its rules are designed to “minimize as far as practicable the drawdown of the water table and the reduction of artesian pressure, to control subsidence, to prevent interference between wells, to prevent degradation of water quality, and to prevent waste.” The rules provide that Historic Use Wells are generally limited to producing the maximum amount of groundwater used before the effective date of the District’s rules. New Wells have a maximum allowable production based on the number of contiguous acres assigned to the well. When a water well is produced it creates a “cone of depression” in the aquifer – the more water withdrawn, the greater the cone of depression.  The District’s rules establish a formula that calculates the amount of water that can be withdrawn from a well based on the number of acres assigned to the well. For example, a New Well producing 3,00 gallons per minute must have 649 continuous acres assigned the well – a circle with a radius of 3,003 feet. No other wells may be permitted in this 649 acres. The District’s rules define “Existing Wells” as those wells “for which drilling or significant development of the well commenced before the effective date of these Rules.” But the rules do not establish production limits for Existing Wells that have no established historic use. Continue reading →

A recent opinion from the El Paso Court of Appeals, Harrison v. Rosetta Resources, illustrates how important groundwater has become in oil and gas development in the Permian Basin.

Harrison signed a lease on Relinquishment Act land, as agent for the State. The lease provided that the Lessee has the right to use groundwater in its operations, except for waterflood operations. Harrison sued the lessee for tearing up an irrigation ditch and other claims, and the lessee agreed as part of the settlement of those claims to purchase 120,000 barrels of water from Harrison’s water well at fifty cents a barrel. The lessee built a frac pit and bought the required amount of water from Harrison. But then the lessee sold the lease to Rosetta. Rosetta drilled additional wells but, instead of buying the water from Harrison, it piped the water onto the lease from another source. Harrison sued. He claimed that Rosetta had orally agreed to continue the same arrangement he had with the previous operator. He also alleged that there was a local custom, known as the “West Texas Rule,” that the lessee would purchase groundwater from the surface owner. He also alleged negligence and violation of the accommodation doctrine.  The trial court granted Rosetta’s motions for summary judgment, and the court of appeals affirmed. Harrison has no right to require Rosetta to purchase his groundwater.

In Texas an oil and gas lease conveys the mineral estate to the lessee for the term of the lease.  Because the mineral estate is the “dominant” estate, the mineral owner/lessee has the right to use so much of the surface estate as is reasonably necessary to exploit the mineral estate. The surface estate includes groundwater, so the lessee has the right, unless limited by the lease, to use groundwater in its operations — even to the point of depleting the groundwater aquifer.  This is true as to fee lands as well as Relinquishment Act lands.

The Texas Supreme Court last week handed down its opinion in Coyote Lake Ranch v. City of Lubbock, holding, in a case of first impression, that the accommodation doctrine applies to govern the City’s right to use the surface of the Ranch to develop its groundwater.

Coyote Lake Ranch covers 40 square miles in Bailey County, on the Texas-New Mexico border northwest of Lubbock. In 1953, the then owners of the Ranch sold the groundwater under the Ranch to the City of Lubbock. The Ranch reserved the right to use groundwater for domestic use, ranching operations, oil and gas production, and agricultural irrigation, but the conveyance limits the Ranch to one or two wells in each of 16 specified locations. The Deed contains lengthy, detailed provisions on the City’s right to use the land. It grants to the City the right “at any time and location [to] drill water wells and test wells” on the Ranch, and to build roads, power lines and other improvements and otherwise make use of the Ranch lands “necessary and incidental” to the production of groundwater.

The groundwater underlying the Ranch is the Ogallala Aquifer, a huge aquifer that underlies much of north Texas as well as parts Oklahoma, New Mexico, Kansas, Colorado, and Nebraska. Water from the aquifer has made the arid high plains one of the most prolific agricultural regions of the United States. It is also a depleting resource and has been depleted in substantial areas of the Texas Panhandle. Continue reading →

The Texas Supreme Court yesterday granted Coyote Lake Ranch’s petition to review the Amarillo Court of Appeals’ opinion holding that the accommodation doctrine does not apply to severed groundwater. View my previous post on the case here.