New Orleans is sinking man, and I don’t wanna swim

Picture1Bourbon blues on the street, loose and complete
Under skies all smoky blue-green
I can’t forsake a Dixie dead-shake
So we danced the sidewalk clean
My memory is muddy, what’s this river that I’m in?
New Orleans is sinking man, and I don’t wanna swim  …. The Tragically Hip

This is a link to an article on subsidence and the pumping of surface water within the bowl in which greater New Orleans is located.  The author is Bob Marshall, a writer who covers environmental issues for The Lens.  I had not thought about this matter for a very long time, but I think that what Marshall describes makes sense (at least to us geologists … especially those of us who grew up in southern Louisiana) and serious consideration a plan that might make New Orleans the Amsterdam of North America.  The article is reproduced below.  The credit goes entirely to Bob Marshall.

Special report: How New Orleans is making a ‘serious problem’ worse with its levees, pumping stations

At almost any time, the sky over a New Orleans neighborhood can quickly change from blue to black as a storm moves in, unleashing window-rattling thunder and dense sheets of rain.  In 20 minutes, the deluge can swamp streets, with water rising over lawns and inching toward front doors.unleashing window-rattling thunder and dense sheets of rain.

But 30 minutes after the last drop falls, the city’s huge pumping stations can have those streets dry again, the only evidence of the downpour being the steam rising from concrete, baking again under the subtropical sun.

Locals may celebrate that efficiency, but Roelof Stuurman, a visiting Dutch groundwater specialist, shakes his head in disgust when he thinks of that rapid and regular wet-to-dry cycle in New Orleans.

“You spend your money trying to get every last drop of water out of your city when you should be trying to keep some of it in,” Stuurman said. “You have this serious problem, and no one is in charge of it. Instead, you’re making it worse.”

That problem is subsidence — the steady, costly and dangerous sinking of the city caused by the drying of the delta soils on which it rests. It turns out that New Orleans, known for its epic battles to keep water outside of its levees, is also threatened by keeping too little water in.

A city that prides itself on embracing contradiction is now waking up to this one: The levees and pumping stations it has spent nearly 300 years perfecting to guard against external threats have also been the catalysts allowing an unseen enemy below to savage its budgets and cloud its future.

“When we settled here, the land under us was like a sponge that contained a lot of water,” said David Waggonner, a landscape architect and co-author of the Greater New Orleans Urban Water Plan, which aims to change the city’s relationship with water. “And what happens to a sponge when you dry it out? It shrinks.

“That’s what we’ve been doing by fighting water instead of trying to live with it. We’ve been hurting ourselves.”

Half of area below sea level

The wounds are visible everywhere: roller-coaster streets pocked with tire-eating potholes; homes tilted and twisted like subjects in Michalopoulos paintings; fractured driveways and sidewalks; lawns that no longer reach front steps; and a drainage system with piling-supported main lines that can be higher than the neighborhoods they are supposed to keep dry.

Yet an even more troubling future is written on elevation maps of the city. Half of the metro area already has been pulled below sea level, and the city continues to sink even as the seas rise at a record pace due to global warming.

Sixty-one percent of metropolitan-area residents now live on land lower than the surface of the lakes and wetlands pushing against the levees, according to Tulane University geographer Richard Campanella, and that number is only going to increase in the years ahead.

Many residents understand the price of protecting the area from hurricanes — a new $14.5 billion levee system and soaring flood-insurance rates — but few understand how the sinking land adds to their daily cost of living as well as threatening the region’s future viability.

Figures in the Urban Water Plan and estimates from city and state officials show a staggering subsidence bill over the next 50 years:

$2 billion in structural damage to homes and buildings. That’s $41 million a year.

As much as $1.5 billion to lift and re-armor sinking levees so they remain certified for subsidized flood insurance.

$8 billion in flood damage due to rainfall, or $160 million a year.

Street replacement rates that are six times the national average: It costs $7 million a mile to rebuild a street in New Orleans, compared with an average of $1.7 million in other urban areas. The extra cost is the amount of subsurface work required due to subsidence, according to the city’s Department of Public Works.

Much of the more than $24 million the city spends annually on sewer and water line repairs is related to subsidence.

Shrinking sponges

The underlying reason for those costs is made clear by an image Stuurman presents: a cross-section of the earth beneath New Orleans, displaying different soil types in different colors.

It looks like a Jackson Pollock painting. Colors start and stop, rise and fall in no discernible order. The chaos covers every inch of the 150 feet between the city’s streets and the first hard rock far below them.

That means the city isn’t sitting on a single sponge but on a collection of sponges of different sizes and types, each of which is shrinking at different rates — and some that will expand again when rehydrated.

“You’ve got highly organic material like marshes, then clays, then beach sands, and in some places a mixture of all those,” said Bill Gwyn, a local engineer who has worked in these soils for decades. “So there really isn’t any average you can go with over distance.

“It is very complicated and challenging.”

It’s all the result of the region’s geologic history. The Mississippi River built this delta over thousands of years through annual floods, each of which may have carried different materials. Later, deeper floods might have covered surface features that grew on the delta. That produced the wild weave of different soil layers beneath the metro area.

So the sinking and expansion can vary from one end of a street to the other, from month to month.

Most of that movement is controlled by the water table — the amount of moisture in the soils. The higher the water table, the slower the rate of subsidence.

Originally, the water table under New Orleans stayed high thanks to an almost annual soaking from Mississippi River floods. But when levees were raised to protect the city from those floods, the water table started dropping and the soils began to drain, dry and sink. That problem was magnified when development spread blankets of concrete and asphalt across the landscape, reducing the ability of rainfall to recharge the water table.

Danger of droughts

New Orleanians live in a city that gets an average of 60 inches of rain a year, yet they know the area’s rare droughts can cause expensive problems as well: Sinkholes develop in streets, houses begin to list like leaking ships, cracks spider across walls, and doors start sticking in their jambs as homes begin to move with the ground beneath them.

But for a population living in a bowl, fear of flooding from frequent torrential rains was always the greater concern and higher priority. The result is a vast stormwater drainage system featuring 1,300 miles of subsurface pipes funneling water to a series of deep outfall canals linked to 23 pumping stations that rank among the largest in the world.

And they’re always working.

“Some of those lines just continuously drain water from the soils beneath the area and into the canals, even when there is no rain,” Waggonner said. “So there is this constant tapping into the water table.”

In fact, that move-it-out-quickly drainage system is now recognized as a factor contributing to more flooding, not less. Speeding great volumes water to the canals can quickly overwhelm the capacity even of those huge pumps to stay ahead of torrential rains.

And as the land has continued to sink due to the draining of the water table, the flooding threat has become worse in some sections of the city because they are now below sea level.

Because the drainage system depends on gravity to move water to the pumping stations, the canals and the major pipes leading to them are supported by pilings to prevent them from sinking below the level of the pumps. But some of the streets and homes around those lines are not on pilings, and they have sunk below the system designed to keep them dry.

That’s one reason some of the city’s major roads — such as Nashville and Napoleon avenues — seemed to be on ridges several feet above the homes along them. They have been built on top of huge drainage culverts that rest on pilings.

“I know this sounds counterintuitive to a lot of people, but the drier we get, the more vulnerable we become to flooding and a whole list of other damages,” Waggonner said. “We need to consider water as our friend.”

Accepting new ideas

To the surprise of many, a city often best known for resisting change is beginning to wrap its arms around the new idea that it must embrace water as an ally, rather than fighting it as an enemy. Providing more space for this friend to live inside the levees will help maintain the water table, and that will mean less of it invading homes during heavy rain events.

That acknowledgement began to turn into citizen action in 2013 with the release of the Greater New Orleans Urban Water Plan, which was funded by state and federal grants. Developed by Waggonner’s firm in collaboration with water management experts from the Netherlands and around the world, the document presents a $9 billion plan for how the Crescent City can turn its age-old enemy into a friend by raising the water table to help reduce subsidence.

It proposes doing that not only by keeping water inside the levees, but actually by showing it off.

The 82 miles of open drainage canals that form concrete scars across the cityscape when empty would become manicured bayous lined with recreation paths and holding water all year long. Empty lots left by Katrina that now collect only weeds and debris would become rain gardens — temporary reservoirs that can reduce the speed and amount of water rushing toward the pumps during heavy downpours.

But the change would be more than skin-deep. Streets and parking lots would be surfaced with materials that allow water to seep into the soils below. Homes and buildings would have rain barrels that trap runoff from roof gutters, then let it out slowly over time. New developments would need to have stormwater management plans to account for their impacts on the system.

Another Amsterdam?

All of those features would be linked to the overriding goal of maintaining the critical element in fighting subsidence: the water table. A system of water table monitors would be established across the area, giving officials the ability to determine how much water can be held during each rain event.

New Orleans might join cities such as Galveston, Texas, which created a subsidence district to regulate activities that could affect its sinking land.

Advocates of the plan say New Orleans could become the Amsterdam of North America — a city living with water, not against it. Indeed, the plan makes such economic and engineering sense that even traditional opponents of dramatic change, like government agencies and the business community, have signed on.

Yet all agree this won’t be easy, and it won’t happen quickly.

There’s the big problem of finding $9 billion.

Also, the goal of replumbing the metropolitan area to raise the water table while ensuring homes remain dry isn’t just a huge engineering challenge. It also will try the confidence of residents.

“We’re all for green infrastructure and the (water) plan, and we’re trying to implement this as we move forward wherever we can,” said Joe Becker, general superintendent of the city’s Sewerage & Water Board. “But we’re talking about a really difficult juggling act — keeping enough water in to meet those goals, but making sure we don’t have flooding.

“I can tell you this: I’ve never had anyone call to complain that the streets drained too quickly.”

Editor’s Note: The original version of this story misstated the year the Greater New Orleans Urban Water Plan was released; the correct year is 2013. A cutline on a photo that ran with the story also underestimated the amount of water the NORA rain garden in Gentilly can hold. It can hold more than 8,800 gallons of storm water.

 

 

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Fracking, Natural Gas in Groundwater, and Stable Isotope Forensics

In Part 1 of my post on Hydraulic Fracking and Natural Gas in Groundwater, I explained how the composition of natural gas establishes a basis for differentiating between thermogenic and biogenic gases. Recall that thermogenic gases are formed from the heating of organic matter in high-temperature subsurface environments. Gases that form under these conditions are typically composed of hydrocarbons ranging from one to six carbon atoms, or methane (C1) to hexane (C6).

Biogenic gases form in lower temperature regimes, usually in the near subsurface, as a result of microbial activity on buried organic matter. These gases, which are dominantly methane with very minor ethane (C2) and propane (C3), are commonly associated with coalbeds, swamps, and landfills.

We can differentiate between thermogenic and biogenic gases by considering the molar ratio of methane to ethane and other hydrocarbons (C1/(C2+C3). As noted in my previous article, it is not uncommon for that ratio to be less than 100 among thermogenic gases and to be greater (oftentimes, much greater) than 1,000 among biogenic gases. The difference in ratios is a function of the deficiency of ethane (C2), propane (C3), and higher-chain hydrocarbons in biogenic gases.

m1_768
Figure 1

 

In addition to the molar ratios, geochemistry offers a deeper look into the signatures of natural gases by mass spectrometry.  This gives geochemists a powerful means of differentiating between thermogenic and biogenic gases. Specialized laboratories have the equipment needed to conduct such analyses on samples of dissolved gas in water and samples of gas collected from production wells. Such analyses focus on specific carbon and hydrogen components of the methane (C1) fraction.

More specifically, laboratories measure the abundances of an isotope of carbon (carbon-13 or 13C) and an isotope of hydrogen (deuterium, 2H or D) in methane, relative to their abundances in standards determined by the International Atomic Energy Agency. For 13C, the standard is known as Vienna Pee Dee Belemnite (VPDB) and for D, the standard is Vienna Standard Mean Ocean Water (VSMOW).

In a substance such as natural gas, methane (C1) will be depleted in both 13C and D, with respect to VPDB and VSMOW, and the abundances of the two isotopes in methane are reported as ratios in units of parts per thousand, or per mil (e.g., δ13C‰ VPDB and δD‰ VSMOW). Because natural gas is depleted in 13C and D compared with the VPDB and VSMOW standards, the reported abundances will be negative.

Figure 1 is a plot of the δ13C and δD values for the two samples of Wilcox dissolved gas and the five samples of Haynesville formation gas as discussed in the previous post. There are three shaded fields: One is representative of thermogenic gas and the two other fields are representative of gas produced by microbial activity. The microbial gas field to the left of the thermogenic gas field is the domain within which the δ13C and δD values of gas associated with lignite and other low-rank coals cluster. The shaded area below the thermogenic gas field is representative of microbial gases that form in swamps and landfills.

m2_768b
Figure 2

All of the Haynesville gas samples lie near the center of the thermogenic gas field and the two samples of dissolved gas from the Wilcox aquifer are within the field associated with coalbeds. This separation between the Haynesville and Wilcox gas samples is unmistakable and establishes a second and very sound geochemical basis for differentiating between thermogenic and biogenic gas. Geochemists look for separations such as this when trying to identify the conditions under which a gas originated.

We can take this a step further by plotting δ13C against C1/(C2+C3), as shown by Figure 2 (also known as a Bernard plot). In this figure, the Haynesville samples lie within the thermogenic field, in the lower right. The C1/(C2+C3) ratios are all less than 100 and the associated δ13C values range from approximately –45‰ to –40‰. The two Wilcox gas samples are located within an area of the Bernard plot dominated by microbial activity. For these samples, C1/(C2+C3) is close to 10,000 and δ13C is –68‰ to –64‰. The separation between the Haynesville and Wilcox gases is so distinct on this plot, both with respect to δ13C and C1/(C2+C3), that there can be no reasonable basis for arguing that there is any influence of thermogenic gas in shallow groundwater.

In this brief presentation and the previous article, we have examined some very basic concepts that offer penetrating insight into the origin of natural gas discharging from shallow ground­water. The concepts and associated plotting methods that I have illustrated are well established and widely used. It is especially important to consider the overall composition of gas and the isotopic signatures of gas discharging from domestic wells before concluding that oil and gas operations are to blame.

 

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Hydraulic Fracking, Natural Gas, and Groundwater

Anyone who has watched films such as Gasland and Promised Land is aware of the alleged dire consequences to groundwater resources from the petroleum industry’s decades-old practice of hydraulic fracturing of tight formations to release hydrocarbons.

Gasland (a “documentary”) and Promised Land (a movie starring Matt Damon) purport to expose such threats, which are highlighted in the form of natural gas discharging from groundwater or flares from the kitchen faucets of landowners whose water wells are located near fields with recently fractured wells.

Such representations are intended to create the impression that fracturing opens pathways from deeply buried strata for the migration of natural gas, brine, and drilling fluids to shallow formations that are sources of groundwater for ­cities and rural areas where fracturing is a common method for oil and gas extraction. The print and broadcast media are complicit in the matter, as both have piled on to fan the sentiment of Americans against this method of developing much needed natural gas resources.

A consequence of anti-fracturing films and reporting is confusion among the public and attempts by environmentalists to ban fracturing.

Origins of Natural Gas

Natural gas is derived from different sources. Most of what we think of as natural gas is produced within the deep subsurface under high-temperature and high-pressure conditions (thermogenic gas). A much smaller component is derived from the production of gas in the shallow subsurface under low-­temperature and low-pressure environments (biogenic gas, that is, coal beds, swampy environments, and landfills).

Geochemists can differentiate be-tween thermogenic and biogenic gases by looking at their carbon compositions (as illustrated by gas chromatographs) and their carbon and hydrogen isotope signatures.

This column focuses on the role of gas chromatography as a differentiator of biogenic and thermogenic gases. Carbon and hydrogen isotope ratios will be the subject of another column.

Gas Chromatography

Because of the different environments in which natural gases are generated, thermogenic gases and biogenic gases can be expected to have distinct compositions. All hydrocarbons are carbon-based compounds with the number of carbon atoms of the components ranging from one to as many as 30 (C1 to C30+). In this post, I am interested only in those components with one to six (C1 to C6) carbon atoms, which are methane through hexane, respectively.

m1_768a
Figure 1 – Composition of thermogenic and biogenic gas samples from Haynesville formation and Wilcox aquifer wells, Caddo Parish, Louisiana

Biogenic gases are primarily methane (C1) and very little ethane (C2) and, in some cases, propane (C3), with methane usually accounting for 99% or more of total gas on a molar basis. Thermogenic gas consists of measurable components of fractions heavier than methane (that is, C2 through C6 gases).

The difference between thermogenic and biogenic gases is illustrated in the figure on the left, which shows the composition of the gas samples collected from two Wilcox aquifer water wells and produced-gas samples from nearby fractured wells that were thought to have been the source of natural gas in the aquifer.  All of the wells are located pproximately 10 miles north of Shreveport (Caddo Parish), Louisiana. The figure shows the percentage (by mass) of each hydrocarbon and nonhydrocarbon gases detected in the samples.

Different Sources, Different Compositions

There are distinct differences between biogenic and thermogenic gases. The samples of biogenic gas, collected from the aquifer, include large percentages of the nonhydocarbon gases argon (Ar), oxygen (O2), and nitrogen (N) (all of which are dominant components of atmospheric gas), a large percentage mass of methane, and very little ­ethane and propane. In these samples, the ratio of methane to ethane and propane is much higher than 1,000. These high ratios are characteristic of biogenic gases, which are considered to be “dry.”

The samples of thermogenic gas, collected from recently fractured wells within one mile of the water wells from which the samples of biogenic gas were collected, are deficient in the atmospheric gases, but are dominated by methane through hexane. Furthermore, the molar ratio of methane to ethane and heavier hydrocarbons in the samples is less than 50. Such low ratios are common to thermogenic gases.

The hydrocarbon composition illustrated in Figure 1 can be considered to represent the “fingerprints” of the different samples of gas. Clearly, there are distinct differences between the fingerprint patterns of the biogenic and thermogenic gases.

My further investigation of this matter pointed directly to an association with lignite beds in the Wilcox as the source of the natural gas in the groundwater wells. Lignite, a low-rank coal, is widespread throughout the shallow subsurface of northwestern Louisiana.

Heavy pumping of water wells during an extended period of below-­normal rainfall (drought) caused lowering of water levels in domestic wells throughout the area. The lower water levels reduced pressures just enough to allow biogenic gas to migrate toward pumping water wells. Also found, in the driller’s notes on one of the water wells, were descriptions of lignite within the 50-ft screened interval of the well.

I have looked at many such cases in Louisiana in which natural gas is detected in groundwater. In every such case, whether in northwestern Louisiana, central Louisiana, and southeastern Louisiana, all of the geochemical signatures have been consistent with the biogenic gas produced in shallow subsurface environments, and not with thermogenic gas migrating from fractured formations deep within the subsurface.

This underscores the importance of not rushing to judgement on the assumed effects of fracturing, but to take a close look at local and regional geological factors that easily account for the generation of biogenic gas. In Part 2, I will delve further into this matter, with an examination of the signatures of the stable isotopes carbon-13 (13-C) and deuterium (D or 2H) of the C1 components of the biogenic and thermogenic gases from this investigation.

 

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Groundwater and In-Situ Leach Mining of Uranium – Part 1

ISL_site
In-situ leach mining of uranium

Before you read any further, I recommend that you download this report.

In 2008, I was retained by the law firm of Blackburn & Carter (Houston, Texas) to conduct an evaluation of the Texas Commission on Environmental Quality’s record of granting relaxed standards for the restoration of groundwater at in-situ uranium mines in South Texas. Many people are not aware that Texas is a major producer of uranium. The uranium ore is not characteristically considered “high grade,” but in-situ mining technology (which owes much of its development to work in Texas) has proved to be efficient enough to make medium-to-low-grade deposits profitable to exploit.

Texas’ prominence as a producer of uranium is traceable to the widespread prevalence of uranium roll-front deposits in the formations of the Gulf Coastal Plain. All are exploited by in-situ mining technology. For an explanation of in-situ leach mining, read Chapter 2 of this report by Gavin Mudd.  For a somewhat more positive description, read  this web page by the World Nuclear Association.

Rather than describe the geology and geochemistry of roll-front deposits and the methods of in-situ leach mining, I will assume that the reader is sufficiently interested in the matter to peruse the above references carefully before proceeding with this blog post.

What did my client want to know?

My client commissioned the report to find out whether one of the principal environmental regulatory agencies of Texas was fair-minded in its consideration of requests by uranium mining companies with respect to petitions for relaxed (that is, less stringent) restoration standards of groundwater at in-situ mined sites in the uranium ore trend of South Texas.

The basis for the requested study was the client’s concern that the Office of Underground Injection Control of TCEQ might be overly generous in its granting of requests for lower restoration standards.

What did I find? Try  this web page for a reasonable summary of my report. I will let the reader make up his/her own mind, based on the report.  A report by Susan Hall (U.S. Geological Survey) reached similar conclusions.

Allow me to point out here that I am NOT opposed to mining or to nuclear energy. Look around and then ask yourselves how much of what you see cannot be traced to mining? Not much, I assure you. That, however, does not give mining companies Carte Blanche to pollute groundwater, surface water, soil, air. And in this so-called ” anthropogenic greenhouse world” (I have my doubts, Al Gore), nuclear energy can play a major role in reducing the concentration of carbon dioxide in the atmosphere.

I know the geochemistry of uranium very well, thank you; and I am convinced that we can extract uranium from roll-front and other deposits without leaving a mess for others to clean up … but you can’t do it “on the cheap.”  A follow-up to this post will explore changes in groundwater chemistry at a closed in-situ leach mine in Live Oak County, Texas, based on an investigation that I conducted for Signal Equities.

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The History of the Rule of Capture Doctrine in Texas, Part 2

pump3-300x200or – “When everybody owns everything, nobody will take care of anything.” Will Durant

GROUNDWATER MANAGEMENT AREAS – A STEP BEYOND GROUNDWATER CONSERVATION DISTRICTS

A principal problem underlying the 1949 and 1985 GCD amendments was the failure to recognize that the flow of groundwater is not controlled by political, but by hydrogeologic, boundaries. Furthermore, there was no requirement that GCDs overlying a common aquifer develop a cooperative set of management plans. In most cases, there was no evidence that GCDs intended to develop plans that would have led to co-operation or to minimal departures from the Rule of Capture (ROC). Most GCDs, in fact, seem to have been committed to preserving the doctrine under the guise of “local control.”

As noted above, many GCDs were formed on the basis of political— not hydrogeological — boundaries. Although the districts have been encouraged to work with each other to produce coherent management plans, prior to 2005, it was often the case that there was little interaction among the districts and that many GCDs pursued objectives which were not in sync with those of neighboring districts. To rectify shortcomings of the GCD system, the Legislature, in 2005, adopted House Bill 1763, which required joint planning among the districts within designated Groundwater Management Areas (GMAs) that cover all of the State’s major and minor aquifers. The Legislature specified that TWDB was to use aquifer boundaries or subdivisions of aquifer boundaries in its delineation of each GMA. TWDB proposed 16 groundwater management areas, with boundaries which reflect those of the major hydrogeologic areas. (Mace, R.E., R. Petrossian, R. Bradley, and W.F. Mullican, III, A Streetcar Named Desired Future Conditions: The New Groundwater Availability for Texas; presented at the 7th Annual The Changing Face of Water Right in Texas, State Bar of Texas, May 18-19, San Antonio, TX. Under the provisions of the 2005 law, representatives of GCDs are required to meet at least once every year to conduct joint planning and to review groundwater management plans and accomplishments in their respective GMAs. The intended long-term effect is to get GCDs to work together under rules which will lead to a better understanding of hydrogeological conditions and the availability of groundwater throughout the State. From this, it is expected that coherent sets of regional management plans will be developed to ensure that groundwater resources will be available to residents of Texas through the year 2060.

ECONOMIC IMPLICATIONS OF THE RULE OF CAPTURE  … A TRAGEDY OF THE COMMONS

Was anything ever to be gained by embracing the ROC as the principal groundwater doctrine of Texas? Two factors often cited in favor of the ROC are: 1. The ROC encourages economic development through maximum utilization of a source or sources of groundwater; and 2. The ROC entails minimal government involvement in the operations of water wells.  It should be noted that “maximum utilization” is not synonymous with “optimal utilization.” Microeconomic theory emphasizes optimal over maximum utilization.  Optimal utilization embodies the concept of economic efficiency, as measured by marginal cost/profit. Maximum utilization embodies neither.

With respect to the exploitation of nonrenewable natural resources (e.g. gold, oil, uranium), this is best explained by Harold E. Hotelling’s theory of the mine (The Economics of Exhaustible Resources, in The Journal of Political Economy, v. 39, pp. 137–175 (1931)), in which Hotelling postulates that optimal resource exploitation is achieved when the marginal profit of the last extracted unit is zero. Although Hotelling’s theory is most often applied to mining operations, it is reasonable to extend the theory to an exhaustible or potentially exhaustible resource, such as groundwater. With regard to the second point above, there is nothing in economics to suggest that unfettered exploitation of a natural resource such as groundwater is economically efficient or amounts to sensible resource management. With respect to groundwater, “minimal government involvement” might be required to prevent over-exploitation, depletion, contamination, and, insofar as groundwater can be considered to be a “public good,” promotion of the health, safety, and welfare of the public.

 

Spindletop
Spindletop oilfield

Factors which might be cited as reasons to amend or replace the ROC with a different groundwater rights doctrine are the following:

1. The potential for overproduction and depletion;

2. Inefficient use and devaluation of the resource; and

3. The ROC ignores the needs of future generations.

Points 1 and 2 are well-established consequences associated with the aggressive exploitation not only of water but of other natural resources that can be considered to form a commons (e.g., petroleum reservoirs, forests, rangeland).   A prima facie example of points #1 and #2 is found in the petroleum industry of Texas, particularly in the over-exploitation of early giant fields such as Spindletop (near Beaumont, Texas).  Discovered in January 1901, Spindletop (see photo on the right) attracted thousands of speculators and producers to Beaumont, Texas. Each producer sought to extract as much oil as possible from his small lease, under the assumption that other producers would drain “his” oil if he did not produce it first. The result was a proliferation of closely spaced drilling rigs, each producing from the same reservoir. The effect of the production frenzy was rapid depletion of reservoir pressure and rapidly decreasing output.  Initial production was as much as 100,000 barrels of oil per day, and total production in 1902 was 17,500,000 barrels (47,945 barrels per day).  By 1904, total production was 3,650,000 barrels   (10,000 barrels per day).  With regard to the production of oil at Spindletop:

Mineral rights to the oil under the leases worked according to the old English “rule of capture.” Under this principle, anybody who had property or a lease anywhere over the pool of crude had the right to suck it out of the ground as fast as he could.

and

With little understanding of the underground pressures of natural gas and water, the producers extracted too much oil too quickly. Water seeped into the reservoir. The flow of oil forced to the surface by pumps slowed to a trickle.

The original production area at Spindletop was reduced to a minor oil field by 1909.

Point #3 is a much-discussed and debated matter involving commitments of one generation to its successors. Given the opportunity to exploit aquifers, petroleum reservoirs, forests, and rangelands, it is reasonable to inquire whether the current generation has an obligation to generations yet to come to ensure that adequate resources will be available or that public lands will not be degraded from overuse.

DEFINITION OF A COMMONS 

A “commons” is any resource which is used as though it belongs to all. An aquifer would easily qualify as a commons. If anyone can use a shared resource simply because one wants or needs to use it, then one is exploiting a commons.  A commons can be destroyed by uncontrolled use.

Garrett Hardin described factors that underlie the destruction or degradation of a commons in his essay The Tragedy of the Commons .  (Refer to Science, Vol. 162, No. 3859, Dec. 13, 1968.)  Hardin’s essay is developed around a parable about the grazing of animals on open pastureland. The owners of the animals are motivated to increase their personal wealth by adding one head of stock at a time to their respective flocks. However, each animal added to the total stretches the carrying capacity of the land. The degradation attributable to each additional animal is small, yet if all owners pursue this strategy, the carrying capacity will be exceeded and the property severely damaged or destroyed. It is not necessary for all users of a commons to behave as described by Hardin. The destruction of the resource can occur if only one user attempts to dominate the commons.

Comanche%20Pool%201938

COMANCHE SPRING

The photo above is of the old pool at Comanche Spring (Fort Stockton, Texas), taken in 1938.  Comanche Spring was the third largest spring in Texas. It was also a source of irrigation water for at least 90 years, and a rare oasis in the semi-arid region of Trans-Pecos Texas. Average daily discharge was estimated to be 21 million gallons.  Comanche Spring ceased to flow more 50 years ago, after Clayton Williams, Sr. developed a well field to supply water to his crops.  Williams’ well field dried up the spring and captured the groundwater that had been used for decades to irrigate more than 6,000 acres of farmland near Fort Stockton. Comanche Spring stands out as a prime example of the destruction of a commons, as well as a basis for reasonable regulation of groundwater pumpage AND the assignment of well-defined and enforceable rights to groundwater in Texas.

One such example of damage to a commons involving the production of water is the matter of Comanche Spring, located at Fort Stockton, Texas (refer to the photo at the beginning of this post). Comanche Spring was a source of water for animals and humans, and the substantial discharge (estimated to be as much as 21 million gallons per day Mgd) made the spring a prime hunting ground for Indians and an ideal location for an army post and a stagecoach stop. The spring also provided water for irrigation, and, in later years, it was the site of a large pool in a municipal park. The spring, however, ceased to flow as a result of pumping to support irrigation, principally by one farmer. In A Primer for Understanding Texas Water Law,  Timothy L. Brown describes the facts and legal issues at the core of the matter.  The Comanche Spring case (Pecos County Water Control and Improvement District No. 1 v. Williams, 271 SW2d 503 (Tex.Civ.App–El Paso 1954, writ ref’d n.r.e.) is prominent in Texas water law. Brown’s account of the matter is reproduced below:

At Fort Stockton, Texas, there were large, prolific springs, named Comanche Springs. The springs provided a water supply for numerous irrigators in the Pecos County Water Control and Improvement District, which upon development, supplied water to irrigate over 6,000 acres.

Up gradient from the springs was land owned by Clayton Williams (Sr.) …. At the time the case arose, Texas was in the early stages of the Great Drought of the 1950s and Williams needed water for his crops. He developed a well field and began to pump water from the formation. The pumping resulted in drying up the springs, which cut off the water supply for the irrigators in the district. Litigation followed. The irrigators asserted that they and their predecessors had owned the location and flow of the spring and that they had used the water beneficially for ninety years. By virtue of this, they alleged, they acquired the right to be protected in the subsurface source of the water. They also plead in the alternative that if they did not own the source of the water supply, they were nevertheless entitled to a fair share of the source of supply. The gist of this argument was that they had a correlative right to the water. They also alleged that the spring was not fed by percolating groundwater, but rather by a well-defined underground stream in which they acquired rights by virtue of claims filed with the Board of Water Engineers. The remedy they sought was an injunction against Williams’ pumping.

Williams countered by filing exceptions to the plaintiffs’ petition. He asserted that the water was percolating groundwater and since no waste had been alleged, he was entitled to a judgment on the basis of the East case. He also asserted that the plaintiffs’ allegation about a well-defined underground stream was insufficient because the source, location, beds and banks and course of the so-called well-defined channel were not provided. The trial court sustained Williams’ exceptions. The irrigators appealed.

The El Paso Court of Civil Appeals affirmed the trial court judgment. The court held that Williams absolutely owned the water beneath his land and the plaintiffs had no correlative rights in it. As to the general allegation about the well-defined stream, Williams’ exceptions were well taken because there was no evidence to support the proposition. As to the failure of the spring when Williams pumped, that did not prove the existence of a well-defined underground channel.

On appeal to the Texas Supreme Court, the plaintiffs attempted to avoid the effect of the East case with an interesting argument. The argument was that the percolating groundwater referred to in the East case did not include water moving in well-defined underground strata. Percolating groundwater, according to modern hydrology, is divided into two classes: first, “diffused percolating water,” defined as slowly moving water which cannot be traced directly as the source of a natural stream, and, second, “percolating water feeding a natural water course,” defined as water which supplies a surface water stream. The former definition was what was used to define percolating groundwater at common law, so East did not apply.

The significance of this argument was, if the Supreme Court adopted the definitions, East would have been stripped of its significance. This is because the facts about most groundwater are known or subject to being known. Thus, once groundwater reached a known water sand, it would no longer be percolating water subject to private ownership as provided by East. This comports with the Attorney General’s earlier opinion.

The Supreme Court declined to take the case and did not write an opinion. By declining to take the case, we can only infer that the Supreme Court apparently rejected the proposition.

The Comanche Spring case stands out as an example of the destruction of a commons for several reasons:

  1. By 1954, hydrogeology had advanced enough since the formulation of Darcy’s law in 1856 that the fundamental principles of hydrostratigraphy and the flow of groundwater on local to subregional scales were well understood.
  2.  By 1954, the effects of pumping on water levels were not mysterious, many thanks to the work of hydrogeologists and civil engineers with the Water Resources Division of the United States Geological Survey.
  3.  Arguments that Comanche Spring was fed by “percolating water” (as understood in the East case) instead of “water moving in well-defined underground strata” (as made on appeal) were clearly absurd. All that was required to counter the claims of Williams’ attorneys was an investigation of the hydrostratigraphy of the area, measurements of water levels in wells between Williams’ property and properties downstream of the spring, and evaluation of drawdown and recovery from pumping tests.
  4. Williams’ pumping caused water levels to fall below the discharge point of the spring, and the lower water levels led to the cessation of discharge. This amounted to as much as 21 Mgd of captured flow to support Williams’ farm and to the loss of water to support irrigation on 6,000 acres that had been sustained by spring flow for many years. This effectively gave Williams a monopoly over a commons that had served a great many people for at least 90 years. 5. The cessation of flow also destroyed a rare water resource in west Texas and denied residents of Fort Stockton and the surrounding area the recreational and aesthetic equivalent of the springs of Balmorhea (Reeves County) or Barton Springs (Travis County).

I have not attempted to calculate the economic loss stemming from the destruction of what might be referred to as the Comanche Spring Commons. Suffice it to say that the losses were and remain significant, particularly in the form of lost agricultural production and incomes, and losses to the City of Fort Stockton associated with the recreational and aesthetic values of the spring. It is far easier to calculate economic damage caused by the loss of irrigation water, than it is to place a dollar value on the loss of a recreational and aesthetic resource to a city, such as Comanche Spring. Imagine Zilker Park and Austin without Barton Springs, and then ask yourself what is the value of the springs at the park to the City of Austin and to Travis County.

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The History of the Rule of Capture Doctrine in Texas, Part 1

le-2012-02-Irrigation-4c-rgMuch of the following was extracted from my article “Rule of Capture and Groundwater Management in Texas”, as published in the April 2007 edition of The Water Report. In my next post, I will explain why the capture rule leads to what Garrett Hardin describes as a Tragedy of the Commons.

THE RULE OF CAPTURE

Among the states which make up the southwestern and western areas of the United States of America, Texas stands out as an anomaly with respect to the access to and use of groundwater. While most western states long ago adopted one allocation program or another based on systems of permits, correlative rights or prior appropriation, Texas has remained averse to state control of groundwater, preferring instead to rely on the English Common Law doctrine (Acton v. Blundell, 12 M. & W. 324, 152 Eng. Rep. 1223 (Ex. 1843)) of absolute ownership (i.e. the “Rule of Capture”).

Under the Rule the Capture, landowners are granted the right to pump water from wells on their respective properties, notwithstanding the impact on others, provided the pumping: (1) can be claimed to be for beneficial use; and (2) not be a cause of environmental damage. At least in Texas, pumping which is deemed to be wasteful or for malicious purposes is not protected by the doctrine. (The different water rights doctrines of the United States of America are explained in Who Owns the Water: A Summary of Existing Water Rights Laws (a Water Systems Council Report).

The Rule of Capture was enunciated in 1904 by the Supreme Court of Texas in Houston & Texas Central Railroad Co. v. East (98 Tex. 146, 81 S.W. 279 (1904)) and reaffirmed over the next 95 years in several cases which sought to overturn or modify the doctrine in order to establish pumping limits. For a complete discussion of this history, see Potter, H.G. III, History and Evolution of the Rule of Capture in 100 Years of Rule of Capture: From East to Groundwater Management, eds. William F. Mullican III and Suzanne Schwartz. Texas Water Development Board Report 361, Ch. 1, p 1-10. The Court’s decision in East was based on consideration of two factors which were first stated in a case decided in 1861 in Ohio (Frazier v. Brown, 12 Ohio St. 294 (1861)):

“… the existence, origin, movement, and course of such waters, and the causes which govern and direct their movements, are so secret, occult, and concealed that an attempt to administer any set of legal rules in respect to them would be involved in hopeless uncertainty, and would, therefore, be practically impossible.” In East, the Court quoting from the English doctrine, ruled as follows:

That the person who owns the surface may dig therein, and apply all that is there found to his own purposes at his free will and pleasure; and that if, in the exercise of such right, he intercepts or drains off the water collected from the underground springs in his neighbor’s well, this inconvenience to his neighbor falls within the description damnum absque injuria, which cannot become the ground of an action.

The phrase damnum absque injuria (Latin) means “loss or damage without injury.” The Court’s description of the flow of groundwater as “secret, occult, and concealed” has for many decades been a source of pointed commentary by hydrogeologists in Texas (see Mace, R.E., Cynthia Ridgeway, and J.M. Sharp, Jr. (2004), Groundwater is No Longer Secret and Occult – a Historical and Hydrogeological Analysis of the East Case in 100 Years of Rule of Capture: From East to Groundwater Management, eds. William F. Mullican III and Suzanne Schwartz, Texas Water Development Board Report 361, Ch. 5, p 63-88. The commentary serves to underscore what some might regard as a sharp divide between the perspective of the legal establishment with respect to matters of natural-resource evaluation and management, as opposed to hydrogeologists and civil engineers, who rely upon well-established principles of physics and hydraulics to describe, predict, and manage the flow of subsurface fluids.

THE CONSERVATION AMENDMENT

Texas, however, has not been entirely unrelenting in its support of the Rule of Capture, as indicated by the passage, in 1917, of the Conservation Amendment of the Texas Constitution (Const. art. XVI, § 59(a)) in the wake of droughts in 1910 and 1917. The Conservation Amendment declared:

The conservation and development of all of the natural resources of this State … and the preservation and conservation of all such natural resources of the State are each and all hereby declared public rights and duties; and the Legislature shall pass all such laws as may be appropriate thereto.

H.G. Potter, III, in History and Evolution of the Rule of Capture, explains:

This constitutional amendment would become critical to water law issues confronting the courts from the time of its passage to the present and would form the basis for much of the judicial branch’s reluctance to interfere with what it viewed as a legislative prerogative.

The Court, for example, cited the amendment in a 1996 ruling (Barshop v. Medina County UWCD, et al., 925 S.W.2d 618 (Tex. 1996)). In Barshop, the Court determined that the State has the responsibility under the Texas Constitution to preserve and conserve water resources (groundwater and surface water) for the benefit of all Texans. The effect of the ruling was to emphasize that natural resource management is the responsibility of the Legislature, not the Court. In a case decided in 1999 (Sipriano, et al. v. Great Spring Waters of America, Inc., et al., 1S.W. 2d 75, 77, 79-80 (Tex. 1999)) the Court commented on the Legislature’s efforts to fulfill its responsibility for water management under the provisions of the Conservation Amendment:

By constitutional amendment, Texas voters made groundwater regulation a duty of the Legislature. And by Senate Bill 1, the Legislature has chosen a process that permits the people most affected by groundwater regulation in particular areas to participate in democratic solutions to their groundwater issues. It would be improper for courts to intercede at this time by changing the common-law framework within which the Legislature has attempted to craft regulations to meet this State’s groundwater conservation needs. Given the Legislature’s recent actions to improve Texas’s groundwater management, we are reluctant to make so drastic a change as abandoning our rule of capture and moving into the arena of water-use regulation by judicial fiat. It is more prudent to wait and see if Senate Bill 1 will have its desired effect, and to save for another day the determination of whether further revising the common law is an appropriate prerequisite to preserve Texas’s natural resources and protect property owners’ interests.

NOTE: Senate Bill 1 is a comprehensive water planning bill passed by the 75th (1997) Legislature in response to a multi-year drought that wracked the State during the 1990’s. SECTION 1.01 of Senate Bill 1 amended SECTION 16.051 of the Water Code to read as follows:

No later than September 1, 2001, and every five years thereafter, the board shall adopt a comprehensive state water plan that incorporates the regional water plans approved under Section 16.053 of this code. The state water plan shall provide for the orderly development, management, and conservation of water resources and preparation for and response to drought conditions, in order that sufficient water will be available at a reasonable cost to ensure public health, safety, and welfare; further economic development; and protect the agricultural and natural resources of the entire state.

The Court’s rulings in Barshop and in Sipriano serve as much needed reminders that the Constitution of the State of Texas establishes the basis for the management of all of the State’s natural resources. This is good news for people who object to judicial activism, and bad news for all who hope for a solution, in the form of a Court-administered sledgehammer, to what they regard as a matter of major concern to all Texans. It was also a stern message to the Legislature that Texas could not continue to ignore current and future problems associated with the capture rule. Thus, it seems reasonable to infer that the Court will not intercede in water issues, as long as the Legislature takes seriously its obligation as required by the Conservation Amendment, to manage the State’s water resources for the benefit of the State’s residents.

ATTEMPTS TO SCUTTLE THE RULE OF CAPTURE

The Rule of Capture notwithstanding, the State has sought to manage groundwater through a decentralized system of conservation districts which allow a high degree of local control. In 1949, the Texas Legislature authorized the establishment of Groundwater Conservation Districts — GCDs. The establishment of GCDs was in response to recommendations in the 1930s and 1940s by the Texas Board of Water Engineers (TBWE), a predecessor of the Texas Water Development Board calling for a law to declare all underground waters to be public waters of the State.

In his book Land of the Underground Rain: Irrigation on the Texas High Plains, 1910 – 1970 (Green, D.E., 1973, The University of Texas Press, Austin, TX, p. 295), Donald Green quotes from TBWE’s 11th biennial report (1934) in which the board recommended a law

“first to declare the underground water of the State to be the property of the State; second, to guarantee the vested rights of those who have already made beneficial use of underground water; and third, to exercise proper control over future underground-water development.”

According to Green, TBWE reiterated in its 13th report (issued in 1938), the recommendation to declare groundwater a public resource. This was followed by recommendations from urban and industrial interests who were concerned about falling water levels throughout the High Plains and other areas of Texas. Green also notes that bills dealing with State control of groundwater were defeated in the Texas Legislature in 1937, 1941, and 1947. The issue of the control of groundwater came up again in the 1949 session of the Texas Legislature. Opposition from High Plains irrigation interests, however, was strong enough to defeat a proposal by the Texas Water Conservation Association (TWCA) that would have substituted a doctrine of correlative rights for the Rule of Capture. The Water Systems Council describes The Correlative Rights doctrine as one which:

…maintains that the authority to allocate water is held by the courts. As a result, owners of overlying land and non-owners or transporters have co-equal or correlative rights in the reasonable, beneficial use of groundwater. A major feature of the Correlative Rights doctrine, however, is the concept that adjoining lands can be served by a single aquifer. Therefore, the judicial power to allocate water permits protects both the public’s interest and the interests of private users.

AN APPARENT COMPROMISE

Negotiations between TWCA and the High Plains Water Conservation Users Association (HPWCUA) led to a compromise bill based on locally controlled districts. Green points out that some irrigators regarded the compromise as a capitulation by TWCA. He quotes the editor of Southwestern Crop and Stock:

Until such time as they deem it necessary to call in state assistance to protect the water supply, West Texans can consider the water their own — to use or to waste as they please.

That commentary can be considered as little more than a foolish and myopic understanding of the matter. What did the editor of the periodical think was to gained by a policy that turns a blind eye to the waste of groundwater … especially in a semi-arid region of Texas?

Under the 1949 law, districts could be established either by special legislation or by a petition from landowners. In 1985, an amendment also allowed TWDB and the Texas Commission on Environmental Quality (TCEQ) to recommend the formation of a district. As of January 2016, there are 100 GCDs in Texas.

This is a good stopping point. In the next post, I will explain how the rule of capture leads to what Garrett Hardin’s theory of a Tragedy of the Commons.

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