The History of the Rule of Capture Doctrine in Texas, Part 1

le-2012-02-Irrigation-4c-rgMuch of the following was extracted from my article “Rule of Capture and Groundwater Management in Texas”, as published in the April 2007 edition of The Water Report. In my next post, I will explain why the capture rule leads to what Garrett Hardin describes as a Tragedy of the Commons.

THE RULE OF CAPTURE

Among the states which make up the southwestern and western areas of the United States of America, Texas stands out as an anomaly with respect to the access to and use of groundwater. While most western states long ago adopted one allocation program or another based on systems of permits, correlative rights or prior appropriation, Texas has remained averse to state control of groundwater, preferring instead to rely on the English Common Law doctrine (Acton v. Blundell, 12 M. & W. 324, 152 Eng. Rep. 1223 (Ex. 1843)) of absolute ownership (i.e. the “Rule of Capture”).

Under the Rule the Capture, landowners are granted the right to pump water from wells on their respective properties, notwithstanding the impact on others, provided the pumping: (1) can be claimed to be for beneficial use; and (2) not be a cause of environmental damage. At least in Texas, pumping which is deemed to be wasteful or for malicious purposes is not protected by the doctrine. (The different water rights doctrines of the United States of America are explained in Who Owns the Water: A Summary of Existing Water Rights Laws (a Water Systems Council Report).

The Rule of Capture was enunciated in 1904 by the Supreme Court of Texas in Houston & Texas Central Railroad Co. v. East (98 Tex. 146, 81 S.W. 279 (1904)) and reaffirmed over the next 95 years in several cases which sought to overturn or modify the doctrine in order to establish pumping limits. For a complete discussion of this history, see Potter, H.G. III, History and Evolution of the Rule of Capture in 100 Years of Rule of Capture: From East to Groundwater Management, eds. William F. Mullican III and Suzanne Schwartz. Texas Water Development Board Report 361, Ch. 1, p 1-10. The Court’s decision in East was based on consideration of two factors which were first stated in a case decided in 1861 in Ohio (Frazier v. Brown, 12 Ohio St. 294 (1861)):

“… the existence, origin, movement, and course of such waters, and the causes which govern and direct their movements, are so secret, occult, and concealed that an attempt to administer any set of legal rules in respect to them would be involved in hopeless uncertainty, and would, therefore, be practically impossible.” In East, the Court quoting from the English doctrine, ruled as follows:

That the person who owns the surface may dig therein, and apply all that is there found to his own purposes at his free will and pleasure; and that if, in the exercise of such right, he intercepts or drains off the water collected from the underground springs in his neighbor’s well, this inconvenience to his neighbor falls within the description damnum absque injuria, which cannot become the ground of an action.

The phrase damnum absque injuria (Latin) means “loss or damage without injury.” The Court’s description of the flow of groundwater as “secret, occult, and concealed” has for many decades been a source of pointed commentary by hydrogeologists in Texas (see Mace, R.E., Cynthia Ridgeway, and J.M. Sharp, Jr. (2004), Groundwater is No Longer Secret and Occult – a Historical and Hydrogeological Analysis of the East Case in 100 Years of Rule of Capture: From East to Groundwater Management, eds. William F. Mullican III and Suzanne Schwartz, Texas Water Development Board Report 361, Ch. 5, p 63-88. The commentary serves to underscore what some might regard as a sharp divide between the perspective of the legal establishment with respect to matters of natural-resource evaluation and management, as opposed to hydrogeologists and civil engineers, who rely upon well-established principles of physics and hydraulics to describe, predict, and manage the flow of subsurface fluids.

THE CONSERVATION AMENDMENT

Texas, however, has not been entirely unrelenting in its support of the Rule of Capture, as indicated by the passage, in 1917, of the Conservation Amendment of the Texas Constitution (Const. art. XVI, § 59(a)) in the wake of droughts in 1910 and 1917. The Conservation Amendment declared:

The conservation and development of all of the natural resources of this State … and the preservation and conservation of all such natural resources of the State are each and all hereby declared public rights and duties; and the Legislature shall pass all such laws as may be appropriate thereto.

H.G. Potter, III, in History and Evolution of the Rule of Capture, explains:

This constitutional amendment would become critical to water law issues confronting the courts from the time of its passage to the present and would form the basis for much of the judicial branch’s reluctance to interfere with what it viewed as a legislative prerogative.

The Court, for example, cited the amendment in a 1996 ruling (Barshop v. Medina County UWCD, et al., 925 S.W.2d 618 (Tex. 1996)). In Barshop, the Court determined that the State has the responsibility under the Texas Constitution to preserve and conserve water resources (groundwater and surface water) for the benefit of all Texans. The effect of the ruling was to emphasize that natural resource management is the responsibility of the Legislature, not the Court. In a case decided in 1999 (Sipriano, et al. v. Great Spring Waters of America, Inc., et al., 1S.W. 2d 75, 77, 79-80 (Tex. 1999)) the Court commented on the Legislature’s efforts to fulfill its responsibility for water management under the provisions of the Conservation Amendment:

By constitutional amendment, Texas voters made groundwater regulation a duty of the Legislature. And by Senate Bill 1, the Legislature has chosen a process that permits the people most affected by groundwater regulation in particular areas to participate in democratic solutions to their groundwater issues. It would be improper for courts to intercede at this time by changing the common-law framework within which the Legislature has attempted to craft regulations to meet this State’s groundwater conservation needs. Given the Legislature’s recent actions to improve Texas’s groundwater management, we are reluctant to make so drastic a change as abandoning our rule of capture and moving into the arena of water-use regulation by judicial fiat. It is more prudent to wait and see if Senate Bill 1 will have its desired effect, and to save for another day the determination of whether further revising the common law is an appropriate prerequisite to preserve Texas’s natural resources and protect property owners’ interests.

NOTE: Senate Bill 1 is a comprehensive water planning bill passed by the 75th (1997) Legislature in response to a multi-year drought that wracked the State during the 1990’s. SECTION 1.01 of Senate Bill 1 amended SECTION 16.051 of the Water Code to read as follows:

No later than September 1, 2001, and every five years thereafter, the board shall adopt a comprehensive state water plan that incorporates the regional water plans approved under Section 16.053 of this code. The state water plan shall provide for the orderly development, management, and conservation of water resources and preparation for and response to drought conditions, in order that sufficient water will be available at a reasonable cost to ensure public health, safety, and welfare; further economic development; and protect the agricultural and natural resources of the entire state.

The Court’s rulings in Barshop and in Sipriano serve as much needed reminders that the Constitution of the State of Texas establishes the basis for the management of all of the State’s natural resources. This is good news for people who object to judicial activism, and bad news for all who hope for a solution, in the form of a Court-administered sledgehammer, to what they regard as a matter of major concern to all Texans. It was also a stern message to the Legislature that Texas could not continue to ignore current and future problems associated with the capture rule. Thus, it seems reasonable to infer that the Court will not intercede in water issues, as long as the Legislature takes seriously its obligation as required by the Conservation Amendment, to manage the State’s water resources for the benefit of the State’s residents.

ATTEMPTS TO SCUTTLE THE RULE OF CAPTURE

The Rule of Capture notwithstanding, the State has sought to manage groundwater through a decentralized system of conservation districts which allow a high degree of local control. In 1949, the Texas Legislature authorized the establishment of Groundwater Conservation Districts — GCDs. The establishment of GCDs was in response to recommendations in the 1930s and 1940s by the Texas Board of Water Engineers (TBWE), a predecessor of the Texas Water Development Board calling for a law to declare all underground waters to be public waters of the State.

In his book Land of the Underground Rain: Irrigation on the Texas High Plains, 1910 – 1970 (Green, D.E., 1973, The University of Texas Press, Austin, TX, p. 295), Donald Green quotes from TBWE’s 11th biennial report (1934) in which the board recommended a law

“first to declare the underground water of the State to be the property of the State; second, to guarantee the vested rights of those who have already made beneficial use of underground water; and third, to exercise proper control over future underground-water development.”

According to Green, TBWE reiterated in its 13th report (issued in 1938), the recommendation to declare groundwater a public resource. This was followed by recommendations from urban and industrial interests who were concerned about falling water levels throughout the High Plains and other areas of Texas. Green also notes that bills dealing with State control of groundwater were defeated in the Texas Legislature in 1937, 1941, and 1947. The issue of the control of groundwater came up again in the 1949 session of the Texas Legislature. Opposition from High Plains irrigation interests, however, was strong enough to defeat a proposal by the Texas Water Conservation Association (TWCA) that would have substituted a doctrine of correlative rights for the Rule of Capture. The Water Systems Council describes The Correlative Rights doctrine as one which:

…maintains that the authority to allocate water is held by the courts. As a result, owners of overlying land and non-owners or transporters have co-equal or correlative rights in the reasonable, beneficial use of groundwater. A major feature of the Correlative Rights doctrine, however, is the concept that adjoining lands can be served by a single aquifer. Therefore, the judicial power to allocate water permits protects both the public’s interest and the interests of private users.

AN APPARENT COMPROMISE

Negotiations between TWCA and the High Plains Water Conservation Users Association (HPWCUA) led to a compromise bill based on locally controlled districts. Green points out that some irrigators regarded the compromise as a capitulation by TWCA. He quotes the editor of Southwestern Crop and Stock:

Until such time as they deem it necessary to call in state assistance to protect the water supply, West Texans can consider the water their own — to use or to waste as they please.

That commentary can be considered as little more than a foolish and myopic understanding of the matter. What did the editor of the periodical think was to gained by a policy that turns a blind eye to the waste of groundwater … especially in a semi-arid region of Texas?

Under the 1949 law, districts could be established either by special legislation or by a petition from landowners. In 1985, an amendment also allowed TWDB and the Texas Commission on Environmental Quality (TCEQ) to recommend the formation of a district. As of January 2016, there are 100 GCDs in Texas.

This is a good stopping point. In the next post, I will explain how the rule of capture leads to what Garrett Hardin’s theory of a Tragedy of the Commons.

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