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

AuthorLaura Springer
PositionJ.D./D.C.L., 2012, Paul M. Hebert Law Center, Louisiana State University.
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
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. DEPT 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=
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.
4. Ben Casselman, U.S. Gas Fields Go from Bust to Boom, WALL ST. J.,
April 30, 2009, at A1.
5. Id.
6. Id.
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
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. § 30:96163. 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.
10. OFFICE OF THE SECY, LA. DEPT OF NAT. RES., Act 955Surface Water
Resources Management, Sept. 2010, http://dnr.louisiana.gov/index.cfm?md=
pagebuilder&tmp=home&pid=92 (select “Overview Presentation, Sept. 2010”).

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