September 22, 2021 354 PM
Texas water law – rule of capture
Water law in Texas (or anywhere) is not very sexy. But when there’s a contentious situation, you need to know your rights. Our Water Matters is intended to help you understand the legal framework governing water in our state in the hope of building a consensus in our region that best serves current and future interests.
Texas law draws a distinction between surface water (such as lakes and rivers) and groundwater (underground aquifers accessed by wells). According to Texas Water Code Section 11.0235, surface water “is owned by the state and held in trust for the citizens of the state.” The state grants surface-water use permits to farmers, ranchers, cities, industries and other public and private interests on the basis of prior appropriation, also known as “first in time, first in right.” Rights to the water in the Rio Grande River are governed by prior appropriation.
Since the Big Bend region has very little surface water in relation to the size of our area, this issue of Our Water Matters will focus primarily on groundwater. When you turn on a faucet in a typical home in our region, the water that comes out is groundwater. If you notice a tank near a windmill or solar pump out on the land, the water in that tank is groundwater. We use it to shower, irrigate our crops and water our livestock. Groundwater is the foundation upon which everything in our lives is based.
Groundwater regulation can seem confusing because it stems mainly from decisions handed down by the courts in the absence of clear legislation. According to Amy Hardberger, director of the Texas Tech University Center for Water Law and Policy, “Much of the complexity surrounding Texas groundwater law is due to the silence of the Legislature.”
When tracing the roots of groundwater law in Texas, all routes lead east, and more specifically to the “East decision,” which was handed down by the Texas Supreme Court in a 1904 case known as Houston & Texas Central Railway v. East. In that case, the Houston and Texas Central Railway had drilled a large well on several lots adjacent to property owned by W.A. East. The railway company’s steam-powered pump withdrew 25,000 gallons a day, causing East’s much smaller residential well to go dry. East filed suit and the case went all the way to the Texas Supreme Court.
At that time, there were no laws governing groundwater in Texas, so the court used the English common law right of capture to guide its decision. Also known as the “rule of capture,” the right of capture stems from a nifty little doctrine called ad coelum, which states that a property owner is vested with property rights in all of the sky above his property up to the heavens and everything beneath his property to the center of the earth.
Although East could point to an obvious injury, the court sided with the railway company, stating that groundwater was part of the soil and therefore the owner of the soil also had ownership of all the water it contained. The court based its decision on two conclusions: 1) “groundwater is so secret, occult and concealed” that it is too difficult to govern; and 2) limiting the rights of landowners to a reasonable share of a resource like groundwater (also known as “correlative rights”) would interfere with economic development.
According to Hardberger, the East decision “essentially allows, with some limited exceptions, a landowner to pump as much groundwater as the landowner chooses, without liability to neighbors who claim that the pumping has depleted their wells.” This seems simple from an ownership perspective: groundwater is the private property of the surface owner and landowners have the right to capture groundwater beneath their land. But adjoining landowners also have the right to pump water from beneath their properties and this pumping can sometimes cause the neighboring landowners’ wells to go dry. As Texas has continued to grow in the decades since the East decision, the ensuing clashes between neighbors have become increasingly commonplace.
Some have also identified a conflict between the East decision, also known as the “biggest pump wins,” and the long-term sustainability of our groundwater supplies. In fact, almost every other state in the Union has moved away from pure English common law as the basis for their groundwater management, and this wisdom seems straightforward. As Hardberger likes to ask her law students in Lubbock, “Look outside. Does it look like England out there to you?”
While the rule of capture may be the law of the land from a case-law perspective, the Legislature did not remain silent on the issue of groundwater regulation. Tune in next time when Our Water Matters will take a look at Texas’ unique legislative response to the “rule of the biggest pump”: local groundwater districts.