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The Necessity of Defining Riparian Rights in Louisiana's Water Law Laura Springer

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The Necessity of Defining Riparian Rights in Louisiana's Water Law Laura Springer Louisiana Law Review Volume 72 | Number 1 The Future of Community Property: Is the Regime Still Viable in the 21st Century? A Symposium Fall 2011 Waterproofing the New Fracking Regulation: The Necessity of Defining Riparian Rights in Louisiana's Water Law Laura Springer Repository Citation Laura Springer, Waterproofing the New Fracking Regulation: The Necessity of Defining Riparian Rights in Louisiana's Water Law, 72 La. L. Rev. (2011) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol72/iss1/10 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. Waterproofing the New Fracking Regulation: The Necessity of Defining Riparian Rights in Louisiana's Water Law Water, taken in moderation, cannot hurt anybody. -Mark Twain I. MAKING WAVES: THE HAYNESVILLE SHALE DISCOVERY AND ACT 955 It was not very romantic: There was no panning, no sifting through gravel of cold streambeds for gold flecks. There were no make-shift tents propped up on the sun-baked ground, no whistling steam engines, braying horses, or ringing of pickaxes against mountains. But in 2008, the atmosphere in North Louisiana must have been thick with a similar excitement. When Chesapeake Energy Corporation announced the discovery of an immense natural gas deposit, now known as "the Haynesville Shale,"' Louisiana's Mineral Board Secretary described the discovery's impact on the state as "something akin to a modem day gold rush."2 In place of pans, tents, and pickaxes came trucks, wells, and a flurry of property leases as energy companies rushed to capitalize on the shale. The venture made some Louisiana landowners millionaires overnight.4 Initial conservative estimates suggested that the Haynesville Shale may hold up to 200 trillion cubic feet of natural gas, equivalent to 18 years' worth of current oil production in the United States.5 Other industry executives speculated that the deposit could be several times that size.6 Copyright 2011, by LAURA SPRINGER. 1. The Haynesville Shale is an Upper Jurassic-age shale underlying much of the Gulf Coast. Most natural gas production from the Haynesville Shale has taken place in Caddo, Bienville, Bossier, DeSoto, Red River and Webster Parishes. Haynesville Shale Orientation, http://geology.com/articles/haynesville- shale.shtml (last visited March 6, 2011). 2. LA. DEP'T OF NAT. RES., Mineral Lease Sale Over the Top-$35 Million for June, June 12, 2008, available at http://dnr.louisiana.gov/index.cfi?md= newsroom&tmp=detail&aid=487. 3. Don Briggs, president of the Louisiana Oil and Gas Association, called the leasing rush "historic": "We've never seen anything like it in the United States. Companies were paying $10,000 to $30,000 an acre. There was $4 billion thrown into leases over the last year." Experts Say Emerging Haynesville Shale Play Has Vast Potential, 16 BASIN OIL & GAs, Apr. 2009, http://www. fwbog.com/index.php?page=article&article=102. 4. Ben Casselman, US. Gas Fields Go from Bust to Boom, WALL ST. J., April 30, 2009, at Al. 5. Id. 6. Id. 226 LOUISIANA LAW REVIEW [Vol. 72 As industry responded to the Haynesville Shale, so did the Legislature. On July 2, 2010, Louisiana Governor Bobby Jindal signed Act 955 of the 2010 Legislative Regular Session into law.7 The Act grants the secretary of the Department of Natural Resources authority to enter into "cooperative endeavor agreements" for the withdrawal of running surface water of the state. In a cooperative endeavor agreement, the secretary reviews applications for water withdrawal and, if an application is approved, collects "fair market value" for the water withdrawn.8 The Act specifically exempts a certain class of landowners from its purview: Act 955 has no effect on "any rights held by riparian owners in accordance with the laws of this state."' The "laws of this state" are ambiguous, however, and the Legislature does not otherwise specify which riparian rights Act 955 will respect. Consequently, riparian landowners and oil and gas companies might be uncertain of their legal rights, and therefore may circumvent the Department of Natural Resources' mandate by conducting independent withdrawals pursuant to leases or other arrangements. Water fuels natural gas extraction; thus, considerations of how and by whom water may be withdrawn are crucial for those involved in the Haynesville Shale venture. This Comment explores the extent of riparian rights in Louisiana, particularly whether riparian rights encompass the use of running surface water for hydraulic fracturing ("fracking," in industry vernacular). First, this Comment addresses whether Louisiana law recognizes a riparian right to withdraw running surface water for the purpose of fracking, the industry practice that Act 955 intends to regulate.' 0 Second, assuming that Louisiana law does recognize this riparian right of use, this Comment explores whether riparians may convey that right to non-riparian oil and gas companies. A general evaluation of riparian rights suggests that fracking is a permissible riparian use of water. Such evaluation further suggests that this 7. Act No. 955, 2010 La. Acts 3315. Act 955 is presently codified as LA. REv. STAT. § 30:961-63. These statutory provisions are interim provisions, intended to be null after December 31, 2012. Act No. 955, 2010 La. Acts 3315, 3319. Though the Act is interim legislation, it is the precursor to the establishment of "permanent state policy." Id. It is prudent to discuss the implications of Act 955 now, with a view towards defining future state policy. 8. Id. at 3316. 9. Id. A riparian is a landowner whose land borders a body of water. DAVID H. GETCHES, WATER LAW IN A NUTSHELL 16 (4th ed. 2009). 10. OFFICE OF THE SEC'Y, LA. DEP'T OF NAT. RES., Act 955-Surface Water Resources Management, Sept. 2010, http://dnr.louisiana.gov/index.cfm?md= pagebuilder&tmp=home&pid=92 (select "Overview Presentation,Sept. 2010'). 2011]1 COMMENT 227 right of use does not extend to non-riparians, nor is this right capable of being leased or sold. To maximize Act 955's effectiveness, however, the Legislature should expressly state that there is no riparian right to convey water to a non-riparian for fracking. The Legislature must name its target; otherwise, Act 955 shoots and misses. II. WHY REGULATE? HYDRAULIC FRACTURING AND ITS CONSTITUTIONAL IMPLICATIONS Because of its extensive water use, fracking implicates two state constitutional provisions that seem to support Act 955's regulatory scheme. First, the Public Trust doctrine requires the Legislature to enact laws to protect Louisiana's natural resources, including water." Second, because water is a public thing, it may not be donated by the State.12 Act 955 is premised on the notion that if the State allows withdrawal of large amounts of running water for fracking, the result is an unconstitutional, tacit State donation of a public thing.' 3 A. The FrackingProcess Fracking in the Haynesville Shale was the catalyst for Act 955." Fracking is a process that increases output from natural gas wells.'5 The fracking process involves a high-pressured injection of large amounts of fluid into a geologic formation.' 6 The fluid is primarily water, with some trace chemical additives." The pressure from the fluid creates or expands existing fractures in the underground rock.' 8 As the rock fractures, a "propping agent" such 11. LA. CONST. art. 9, § 1. 12. LA. CONST. art. 7, § 14. 13. See La. Atty. Gen. Op. No. 08-0176 (2010). Discussing the methods by which entities have removed water for fracking, the Attorney General explained that running water "cannot be donated by allowing a person with a tanker truck to pump it out of the creek from a public road right-of-way." Id. at 4. 14. LA. DEP'T OF NAT. RESOURCES, supra note 2, at slides 2-6. 15. OFFICE OF RES. AND DEV., U.S. ENVIRONMENTAL PROTECTION AGENCY, PUB. NO. EPA 600/F-10/002, HYDRAULIC FRACTURING RESEARCH STUDY 1 (June 2010), available at http://www.epa.gov/safewater/uic/pdfs/hf researchstudyfs.pdf [hereinafter "EPA STUDY"]. 16. Id. 17. A spokesperson for Halliburton, for instance, states that chemical additives "typically comprise less than one-half of 1 percent of [its] hydraulic fracturing solutions." Tom Zeller, Jr., E.P.A. to Study Chemicals Used to Tap Natural Gas, N.Y. TIMES, Sept. 9, 2010, at B3. 18. EPA STUDY, supra note 15, at 1. 228 LOUISIANA LAW REVIEW [Vol. 72 as sand is pumped underground to keep the fractures open.19 Natural gas flows from the fractures into the well, where it is then extracted.20 Fracking has become increasinily important in unlocking previously unreachable gas reserves. 1 Of the 450,000 operating gas wells in the United States, 90% rely on fracking for production.22 This reliance on fracking is a concomitant reliance on water: fracking a single well may require millions of gallons of water. 23 The Louisiana Ground Water Resources Program reported that from October 2009 to mid-July 2010, 80% of the water used for drilling operations in the Haynesville Shale came from surface water sources. 24 In that 10-month span, 1.5 billion gallons of surface water were used.25 B. ConstitutionalConcerns with Fracking:Public Trust Doctrine and Donation ofPublic Things The sheer volume of water at issue buttresses the logic behind regulation. But regulating the withdrawal of running surface water may be more than ostensibly sensible; it may be mandatory under at least two provisions of the Louisiana Constitution. First, the need for regulation finds support in the Constitution's mandate to protect state natural resources.
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