Rethinking the Rule of Capture

The century-old Texas Rule of Capture is undergoing evaluation and debate (100 Years of Rule of Capture, 2 0 04).23 Professor Corwin Johnson said:

All that can be said in favor of the rule of capture is that it leaves the market free to allocate water to uses regarded by the market as most valuable . . . [but that] . . . eventually its lack of restraint leads to diminishing, and eventual depletion, of the available supply of aquifers . . . [and that] it not only threatens the supply of water in Texas, but also deprives Texas landowners of rights they might otherwise have [because] [t]hey have no legal remedy for dewatering of their wells by others.

In a paper prepared for the Texas Public Policy Foundation, water resources economic consultant Clay Landry stated:

[T]he rule of capture makes it extremely difficult for landowners to conserve and manage their groundwater assets . . . [because] . . . the only way they can protect their claim is by pumping the water . . . [resulting in] . . . a race to the pumphouse.

Support exists, however, for retaining the Rule of Capture in Texas. Those supporting the rule argue:

[T]he rule of capture in combination with regulation by local option groundwater conservation districts [GCDs] has proven to be an effective means of developing and managing Texas' groundwater resources . . . [and that] . . . [a]s a practical matter, the days of operating under an unrestricted rule of capture in Texas are past . . . [because] . . . [t]he vast majority of production occurs from resources that are included within GCDs where the rule of capture is significantly limited by district rules and permitting requirements.

Professor Johnson recommended that the courts adopt the Restatement of Torts ยง858 to replace the Rule of Capture (Johnson, 2004, p. 15). Alternatively, the Texas Legislature could adopt one of the various groundwater allocation doctrines used by other states,25 or 'ignore the rule of capture, and continue on its present course of addressing directly groundwater problems' (Johnson, 2004, p. 16). While adopting the Prior Appropriation Doctrine 'would be helpful' because of the quantification of the rights, integration with surface water and preservation of historic use, that doctrine too would have disadvantages, as noted elsewhere in this chapter (Johnson, 2004, pp. 16-17). Water resources economist Landry concluded in his paper that because '[s]trong markets make for good markets' (Landry, 2000, p. 3), '[p]roperty rights and water markets offer the best hope among all other options for efficiently and equitably allocating this precious resource to its most highly valued uses' (Landry, 2000, p. 8). Supporters of the Rule of Capture argue that refinement, not replacement, would be preferable.

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