Groundwater and the Rule of Capture
Prepared by Steven Schafersman, Ph.D.
President, Texas Citizens for Science
2011 May 2
The Rule of Capture has been the law in Texas for over 100 years, the only Western state that continues to use it. The Legislature has been given ample opportunity to change this execrable statute that is so blatantly unfair to neighboring farmers, wasteful of water, and environmentally destructive, but it has not. Perhaps recognizing that a problem exists, the Legislature created Groundwater Conservation Districts (GCDs) and gave them some limited powers to regulate groundwater extraction, but their decisions can be and have been challenged in courts when the surface/groundwater owners believe their Rule of Capture rights are being ignored or thwarted. Thus, the Texas Legislature has not really solved the groundwater rights problem and in fact has created even more serious difficulties, since now Texas has two competing legal sets of rules that govern groundwater extraction, the Rule of Capture and Groundwater Conservation Districts. In effect, this means that the Rule of Capture's potential waste, injustice, and environmental damage persist despite the existence of GCDs meant to mitigate the problem. A challenge and victory in Federal court (not Texas court) will probably be necessary to end the reign of this irrational and destructive Texas law as scientific evidence and reason necessitate, since the State's courts and legislature are, for political and ideological reasons, unwilling to end it on their own.
These law review papers, historical papers, legal briefs, and review articles assert or imply a variety of views. Most document why the Rule of Capture should be abandoned and responsible government regulation of some kind substituted that protects aquifers and groundwater from excessive exploitation (such as groundwater mining). Others say the Rule of Capture can persist but under strong Groundwater Conservation District management (which is essentially the same as government regulation but with more local control and the potential for courtroom litigation after any decision is made). Almost none defend the Rule of Capture in a traditional absolutist sense with no reservations, i.e. as a problem best decided solely by market forces with no responsible government or GCD oversight or regulation, although this last alternative is upheld by large and wealthy landowners who, in Texas, own the groundwater rights under their property by the Rule of Capture.
Susana Elena Canseco, 2008, Landowners' Rights in Texas Groundwater: How and Why Texas Courts Should Determine Landowners Do Not Own Groundwater in Place
Douglas G. Caroom and Susan M. Maxwell, The Rule of Capture--"If it Ain't Broke...."
Bruce K. Darling, 2009, The Rule of Capture, Changing Perspectives on Water Management in Texas, The Tragedy of the Commons, and Developments in the Valuation of Groundwater
Dylan O. Drummond, Lynn Ray Sherman, and Edmond R. McCarthy, Jr., 2004, The Rule of Capture in Texas--Still So Misunderstood After All These Years
Sydney W. Falk, Jr., 2009, "I Do." "No, You Don't" "Do, Too." "Do Not." -- Who Owns Underground Water" And When?
Stephen Harrigan, 1986, Silent Springs [the story of the demise of Comanche Springs in Fort Stockton]
Corwin W. Johnson, What Should Texas Do About the Rule of Capture?
Russell S. Johnson, [Texas] Groundwater Law and Regulation
Ronald Kaiser and Frank Skiller, 2001, Deep Trouble: Options for Managing the Hidden Threat of Aquifer Depletion in Texas
Ronald Kaiser, 2005, Who Owns the Water?
Ronald Kaiser, 2005, Solving the Texas Water Puzzle: Market-Based Allocation of Water
Ronald Kaiser, 2007, A Primer on Texas Water Law
Ronald Kaiser, Handbook of Texas Water Law: Problems and Needs (15.7 MB)
Bruce M. Kramer and Owen L. Anderson, 2005, The Rule of Capture--An Oil and Gas Perspective
Bruce Lesikar, Ronald Kaiser, and Valeen Silvy, Questions about Groundwater Conservation Districts in Texas
Robert E. Mace, Cynthia Ridgeway, and John M. Sharp, Jr., Groundwater is No Longer Secret and Occult--A Historical and Hydrogeological Analysis of the East Case
Robert E. Mace, and others, 2006, A Streetcar Named Desired Future Conditions: The New Groundwater Availability for Texas
Laura Brock Marbury and Mary E. Kelly, 2005, Spotlight on Groundwater Conservation Districts in Texas
Laura Brock Marbury and Mary E. Kelly, 2009, Down to the Last Drop, Spotlight on Groundwater Management in Texas
Laura Brock Marbury and Melinda Taylor, 2007, Myths and Facts About Groundwater Marketing: A Guide for Landowners and Groundwater Conservation Districts
Eric Opiela, 2002, The Rule of Capture in Texas: An Outdated Principle Beyond Its Time
Harry Grant Potter, III, History and Evolution of the Rule of Capture
Colleen Schreiber, 2006, Texas Groundwater Law in Flux; Primer is Constantly Changing
Texas Living Waters Project - Texas Groundwater and the Rule of Capture
Todd H. Votteler, 1998, The Little Fish That Roared: The Endangered Species Act, State Groundwater Law, and Private Property Rights Collide Over the Texas Edwards Aquifer
Todd H. Votteler, Drought
Todd H. Votteler, 2004, Raiders of the Lost Aquifer? Or, the Beginning of the End to Fifty Years of Conflict over the Texas Edwards Aquifer
TWDB Report 345: Aquifers of Texas | Download complete document in PDF (6.6 MB)
TWDB Report 356: Aquifers of West Texas | Download complete document in PDF (27.7 MB)
TWDB: An Assessment of Aquifer Storage and Recovery in Texas
Aquifers of Texas, 2004
Major Aquifers of Texas
Texas Water Foundation
Texas Water Matters
Edwards Aquifer Authority
The Edwards Aquifer Website
Gaudalupe-Blanco River Authority
Todd Votteler Publications
Ronald Kaiser Publications
Texas Alliance of Groundwater Districts
Stalking the Wild Beast - The Rule of Capture in Texas
Texas Citizens for Science Last updated: 2013 January 4