In order to avert the depletion of water resources, many states have attempted to enact legislation aimed at promoting water conservation. Such legislation has been known to conflict with outdated principles of property ownership, namely the rule of capture. The rule of capture vests landowners with property rights in water located directly beneath their land. Texas categorizes water based on whether the water flows above or below the surface. Surface water is typically the property of the state, with property owners having no possessory interest in the surface water. Yet, the opposite is true for groundwater, where all rights to groundwater belong to the capturer or landowner. This allows landowners to use as much groundwater beneath their land as they choose. The Texas Legislature enacted the Edwards Aquifer Act (EAA) and Senate Bill 1 (S.B. 1) which limit the amount of water which may be pumped from the Edwards Aquifer and implemented research of groundwater districts. Despite the Legislature’s contentions that EAA and S.B. 1 are valid and reasonable, landowners have challenged the legislation, asserting it amounts to a taking under the state and federal constitutions. Additionally, both pieces of legislation abrogate strict application of the rule of capture. Yet, neither of them goes far enough. Thus, if the state of groundwater law remains the same, communities will be injured by individual landowners withdrawing unlimited amounts of groundwater. As early as 1917, the State of Texas recognized the need to protect natural resources. The antiquated doctrine of the rule of capture is incompatible with current water needs of the twenty-first century. The rule of capture must change if sustainability of water resources is a goal for the future. The Texas Legislature must enact comprehensive groundwater management programs which gives the State ultimately property rights to both ground and surface water.
St. Mary's University School of Law
Stephanie E. Hayes Lusk,
Texas Groundwater: Reconciling the Rule of Capture with Environmental and Community Demands Comment.,
St. Mary's L.J.
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol30/iss1/5
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