Texas Could Face a Grave Water Crisis Because of a Little Known Law

Water and where to get it has been an obsession ever since humans arrived in the American West. People have searched, begged, lied, stolen, cheated, killed and been killed for it. Land has been seized, plundered and rendered useless because of it. Riverbeds, lakes and communities have been drained and abused and trivialized into detritus, remnants left behind in the pursuit of progress.

The process is still playing out, nowhere as dramatically as in Texas, where 21st century water wars are breaking out across the state.

In West Texas and the Panhandle, water marketers such as millionaire farmer Clayton Williams Jr., developer Woody Hunt, Denver billionaire Phil Anschutz and Dallas corporate raider T. Boone Pickens have plotted ways to move the precious commodity from rural areas to thirsty cities, lining their pockets all the way while ending farming as a way of life in the remote Dell Valley of West Texas and in Roberts County in the eastern Panhandle.

North of San Antonio, golf course developments and booming bedroom communities compete with small towns over water in the Guadalupe River. Along the border, farmers squabble with their counterparts in Mexico for their fair share from the Rio Grande. In Kinney County, the heart of Texas’ artesian aquifer region, farmers are fighting each other over their rights to sell water. Caddo Lake—the only naturally formed lake in Texas, in the wettest corner of the state—has been the object of a historic tug-of-war between lake people and the nearby town of Marshall. Nueces Bay, and every other estuary on the Texas coast, is threatened by reduced freshwater in rivers because of  increased withdrawals upstream.

Court dockets are backlogged with so many water-related suits, you might say they’re waterlogged. Candidates for high office speechify about the problem but offer no real solutions. Lobbyists stuff their pockets in anticipation of a legislative session in which water will be one of the most serious long-term issues facing Texas.

Much of this fussing and fighting comes courtesy of the Rule of Capture, an archaic piece of British common law carried to these shores. The Rule states that whoever owns a piece of property owns the water beneath it. The Texas precedent was set in 1843 in the case of Acton v. Blundell, when Texas was a republic and people were largely ignorant about the nature and movement of groundwater. The Rule of Capture was upheld in 1861, when Frazier v. Brown was decided, and again in 1904 when the Texas Supreme Court heard The Houston & Texas Central Railway Co. v. East case. The court upheld The Rule by reasoning water below the soil was too “mysterious, secret, and occult” to regulate.

On the other hand, surface water—water you can see, such as rivers, lakes, and bays—belongs to the people of Texas, a doctrine most Western states apply to both surface and groundwater.

No state politician of power and influence has since dared to propose eliminating The Rule, even though Texas is the only state in the arid half of the United States to embrace a principle other states regard as foolhardy. About the best the Texas Legislature could muster to address this unequal use of the earth’s most precious resource was the 1949 declaration that groundwater districts were the preferred method for local communities to “conserve, preserve, protect and recharge underground water reservoirs.” Although districts have the power to space wells to minimize drawdown, if it comes down to legal hairsplitting, The Rule still has precedence. If you are lucky enough to have groundwater, it is yours to sell for a handsome profit.

Water is the New Oil in Texas. The winners and losers are still to be determined.