Groundwater and the Rule of Capture
Texas has nine major aquifers and about 20 smaller ones. This groundwater supplies about 60% of the water for the state’s residential, industrial, and agricultural needs and is governed by legal doctrine unique among Western states.
Large-scale irrigation began in Texas with the construction of canals in the 1860s. In 1913, the Texas legislature passed its first major irrigation act, which led to the creation of the Board of Water Engineers and the first water-conservation districts. Most irrigation projects in Texas are operated by public agencies and managed in accordance with Texas’s drought and flood weather cycle. Undated photo (20th century), Prints and Photographs Collection.
Broken water main in Lubbock, 1956. Drought causes the ground to crack and shift, breaking underground structures such as water pipes. During the drought and heat wave in the summer of 2011, the City of Houston reported more than 700 water main breaks a day. Texas Highway Department Historical Records.In 1901, Denison, Texas (about 70 miles north of Dallas) was a booming crossroads for more than 10 railway lines. Railways required water to provide steam for train engines and the machine shops that serviced them. The Houston & Texas Central Railway drilled a well to provide for its water needs – a well that was soon pumping some 25,000 gallons a day and draining the residential wells of the neighborhood surrounding the train station.
The neighbors sued the railway, and the case known as Houston & Texas Central Railway v. East wound its way through the court system, winding up at the Texas Supreme Court. In June 1904, the court handed down a ruling that would set the stage for Texas groundwater rights for almost a century. Coming down squarely in favor of the railway, the court upheld the rule of capture, a legal doctrine with deep roots in historic common law. Essentially the rule of capture permits the owner of a well to pump as much water as desired, even if the water is drained from beneath the land of others.
Government interest in groundwater grew slowly. In 1917, a severe drought led to a constitutional amendment that gave the Texas legislature the responsibility for protecting the state’s natural resources. The legislature exercised this duty in 1949 with the creation of the first groundwater districts. Because of the constitutional amendment, courts were reluctant to rule on groundwater cases in Texas, considering the issue a legislative prerogative. The result is that Texas continues to follow rule of capture decades after other Western states have abandoned it for a doctrine known as reasonable use or the American rule.
Today, approximately 89% of Texas’s groundwater is managed by groundwater districts and groundwater use is limited to some degree by legislative statute. In Barshop v. Medina County Underground Water Conservation District (1996), the Texas Supreme Court issued a landmark ruling affirming the authority of the legislature to create the Edwards Aquifer Authority and allowing the Legislature wide latitude to define the power of underground water authorities to regulate pumping and well size and spacing. In Sipriano v. Great Spring Waters of America, Inc. (1999) the Court affirmed that rule of capture was still the law of the land in Texas but suggested in written opinions that times had changed and further legislative action would be well-received by the Court.
Major legislation in 1997, 2001, and 2005 substantially increased the power of groundwater districts. As recently as 2011, legislation affirmed commitment to the basic principles of the rule of capture, setting up more court cases that will continue to shape Texas’s response to balancing property rights with community needs.