Natural Resources Journal Current Issue

Spring 2015, Vol. 55 No. 2

Front Matter

In the midst of a record-setting drought and an unprecedented oil and gas boom, an important question has arisen under Texas water law. Where do the water wells that supply fresh groundwater for the fracking process fit under the current Texas Water Code? Are these wells “exempt” under Texas Water Code section 36.117(b)(2) as water wells used solely for oil and gas drilling and exploration, which would excuse the wells from many requirements imposed on most other water wells? Specifically, must groundwater wells drilled for fracking comply with the groundwater conservation districts’ (GCDs) permitting requirements prior to drilling and operation? It remains uncertain whether such wells fall within the scope of section 36.117(b)(2), because fracking was not commonly used when Texas passed the current statutory exemption for oil and gas rig water supply wells in 1971. Moreover, GCDs disagree on whether fracking should be classified as drilling, exploration, or production, and, consequently, whether such wells are exempt from GCD requirements. This paper focuses on the scope of Texas Water Code section 36.117(b)(2) and whether this exempt well provision applies to groundwater wells that are drilled solely for use in hydraulic fracturing.

Freshwater ecosystems need adequate streamflow to supply clean water for humans and maintain healthy habitat for wildlife. Overappropriation, overuse, climate change, and drought plague New Mexico’s rivers, taxing many rivers beyond sustainability. Despite the myriad of problems caused by little or no water in our rivers, policies and procedures to protect and increase streamflows in New Mexico are limited. While most Western states have made demonstrable progress in alleviating various legal and technical barriers to protecting and increasing streamflows, New Mexico has made only limited, recent progress towards solutions for our drying rivers. This article takes a critical look at the historical and current position of the Office of the State Engineer, the state’s authority for permitting and administering water rights, regarding instream flow rights. The article concludes with several recommendations to ease or eliminate concerns about the administration of rights to instream flows such that New Mexico’s rivers can be restored to better health and maintained for the benefit of current and future generations.

Agriculture is the largest water user in the West, and it will play a central role in balancing water supplies with competing water demands in light of climate change. Water resources that are already over allocated face competing demands from growing urban populations, unresolved tribal water claims, and for maintenance of riparian habitats. While many believe we can meet these demands by reallocating water from agriculture, climate change complicates this calculus. Warmer temperatures and longer droughts will reduce regional water supplies and increase agricultural water demands, making transfers more costly. Hydrological-economic modeling studies suggest agricultural water use will decline, leaving urban use relatively unchanged. Although this agriculture-to-urban reallocation of water is often treated primarily as an engineering problem, many legal and institutional barriers exist to large-scale water transfers. Technological fixes to conserve and transfer agricultural water to other uses will likely fail to facilitate climate adaptation unless changes in water management institutions, policies, and economic incentives accompany those technological fixes.

The eastern United States generally lacks statutory limits on the use of water for agricultural uses, particularly irrigation. Commentators lament this deficit and advocate for statutory limits, citing certain problematic cases, such as Georgia’s former exemption for agricultural water use. No research surveys the status of agricultural water use in the eastern United States under so-called “regulated riparian” statutes. This article examines water use and the statutory water allocation rules in 19 eastern states with regulated riparian statutes to determine the extent of agricultural water uses in the East, as well as whether adequate controls are in place for such uses. This article analyzes water use data for each state and summarizes and categorizes the water allocation statutes in each state. The article concludes that the controls on agricultural water use in the East present a more nuanced issue than previously forecast, with agricultural uses of water posing issues in some states and not others, and with some states imposing comprehensive controls while others lack such a holistic approach. In almost all cases, state legislatures fail to link usage data with regulation. The article concludes with a recommendation to use effective existing regulations as model rules.

Our research examines Integrated Regional Water Management (IRWM) policy-in-practice, which often reflects broader State exclusion of Tribal partners in natural resource policy, yet also provides potential opportunities for government-to-government collaboration and co-management. IRWM is the state of California’s chosen mechanism for collaborative water management. Our findings confirm that if Tribes and state or local jurisdictions were already working well together, the IRWM program has been beneficial to Tribal interests. In the Tuolumne-Stanislaus IRWM region, for example, the Regional Water Management Group (RWMG) facilitated a first of its kind voluntary water transfer between a Tribe and a local water agency. Conversely, in situations in which local governments and Tribal governments were adversarial, IRWM presents an additional barrier to Tribal participation in water policy and planning, despite Tribes’ Winters-affirmed federal reserved water rights. In all instances, we found it would significantly improve IRWM statewide to require RWMGs to: (a) engage in statutorily defined1 government-to-government consultation with Tribes and (b) provide seats for Tribal representation on RWMG governance bodies. By revising the IRWM program guidelines, the state of California can continue to address deeply institutionalized inequities within state water policy and management structures. Following the release of our recommendations, California Department of Water Resources (DWR) began holding workshops to examine revising the IRWM program guidelines. If DWR implements the findings from our study and requires Tribal participation in the governance of RWMGs, this could set a productive example for other states, as well as result in significant benefits in California water management.

Hydraulic fracturing faces significant criticism for its water use but that attention is relatively undeserved when compared with the far greater consumption of other sectors. Even so, such criticism, combined with heightened water scarcity, ongoing industry action to reuse produced water, and environmental concerns regarding produced water disposal, creates an opportunity to pilot a regulatory system that incentivizes water conservation. The regulatory system should address a broad range of stakeholder concerns by incentivizing continuous technology development, establishing rules that are predictable and easy to enforce, and increasing water recycling in water scarce regions. This article considers multiple regulatory tools to create such a program and presents a proposal that leverages the relative strengths of these tools.

Texas is increasingly dependent on groundwater supplies due to drought and rapid population and economic growth. The current groundwater law regime of absolute ownership and rule of capture is fundamentally unsustainable. Without reforms, Texas risks a California-style water supply crisis as soon as five to seven years from now. This would threaten millions of Texans’ physical wellbeing and economic livelihoods. Texas oil and gas law offers a legal framework for a groundwater management system that can help avert future water supply crises. Texas courts already have more than 75 years’ of experience deciding oil and gas cases under a managed withdrawal system. Using correlative rights and rated withdrawals to manage groundwater would provide stronger incentives for conservation. It would even enable market pricing of water while it is still in the ground. This, in turn, would open the door to a range of market-based conservation options that both save water and unlock additional economic value.

Book Reviews

Enduring Acequias: Wisdom of the Land, Knowledge of the Water by Juan Estevan Arellano (Univ. of New Mexico Press; 220 pages; 2014)
Reviewed by Bianca Smoker, Class of 2016, University of New Mexico School of Law

Water 4.0: The Past, Present, and Future of the World’s Most Vital Resource by David Sedlak (Yale University Press; 332 pages; 2014)
Reviewed by Brian Smith, Class of 2016, University of New Mexico School of Law

Water Ethics: A Values Approach to Solving the Water Crisis by David Groenfelt (Routledge; 216 pages; 2013)
Reviewed by Robin James, Class of 2016, University of New Mexico School of Law