Waterproofing the New Fracking Regulation: The Necessity of Defining Riparian Rights in Louisiana?s Water Law

• Author: Laura Springer
• Position: J.D./D.C.L., 2012, Paul M. Hebert Law Center, Louisiana State University.
• Pages: 225-253

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,”1

Louisiana’s Mineral Board Secretary described the discovery’s

impact on the state as “something akin to a modern 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.3 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.cfm?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, U.S. Gas Fields Go from Bust to Boom, WALL ST. J.,

April 30, 2009, at A1.

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.”9 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.10

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”).