Water manager: 'Rule of Capture' misunderstood

By GARY WESTBROOK Manager, Post Oak Savannah Groundwater Conservation District

I need to make some clarifications to an article that appeared in last week's Reporter. The first is to correct an oversight. The composition of our directors also includes one to represent local water utilities from each county.

The second is concerning a much more challenging issue, and that is the Rule of Capture which you mention at the end of the article and the ability of groundwater conservation districts to regulate pumping of groundwater.

Since Texas is indeed a state which recognizes the rights of landowners to produce groundwater from beneath their lands (many states consider groundwater to be property of the state just as surface water), the Rule of Capture is the accepted law in this state, modified only by the rules adopted by a groundwater conservation district (GCD), where there is a GCD in place.

The Rule of Capture simply states that as long as they do not waste the water they produce, a landowner owns the right to produce any amount of water from beneath their land without any liability to their neighbors for any impact they cause. The rules of a GCD modify the Rule of Capture to fit the needs of the stakeholders of the GCD. The rules of a GCD do not replace the Rule of Capture, these rules modify the Rule of Capture. In this district, we use well-spacing and contiguous acreage requirements to provide protection from producers to neighboring landowners.

Here is one of the most overlooked points in the Rule of Capture: A landowner owns the "right" to produce groundwater from underneath their property. They do not own the groundwater itself.

As a landowner in this district myself, I understand how this sounds, but that is exactly what the Rule of Capture means. You own the "right to produce" the groundwater. You do not own the groundwater itself unless you actually legally produce the groundwater. A landowner can lease or sell these rights if they choose, but these are only rights to produce groundwater.

To understand why this rule exists, consider that water is not stationary; it moves, or migrates, underneath the land. There is no way to "brand" it for later identification of ownership after it has moved from under your neighbor's piece of land to under your land. Now, if your cow gets out of your pasture and into your neighbor's, you can identify her by the brand you put on her.

Not so with groundwater. Groundwater is more like, for instance, wildlife. Every landowner around here knows that the big buck you saw on your place last spring, and that you hope you get to see very soon in December, can only be legally "captured" by you while he is on your place. If you shoot him on the other side of the fence, we call that "tressp assin'." You have the right to capture that animal on your place, but if he migrates to someone else's property they have the right to capture him there.

This, in a nutshell, is what the Rule of Capture is all about. It is a Rule of "ownership of rights" to capture something, not "rights of ownership" to the object itself. Depending on who you ask, the origins of this "Rule" have been traced back by some to old England, and even beyond to ancient Greece. Because of the nature of the object, in this case groundwater, and its characteristics of movement, this is still the law governing groundwater in Texas, and the law that is modified by the Rules of a GCD to manage aquifers and regulate production from those aquifers.

Personally, I am not calling this the perfect law to govern groundwater, but no one has come up with anything to date that will work better. These landowner rights I have mentioned are very important to our Directors and are a great reason why the Rules of our District recognize both the protection of the aquifers and the constitutional property rights of landowners, both now and in the future. Under the Rules of the District, the Rule of Capture, in its most pure form, is no longer applicable. The District has modified that "Rule" so that all landowners have the right to produce groundwater, as permitted under the Rules of the District, both now and into the future.

More recently, GCDs are required to operate and regulate aquifers in harmony with other GCDs w ithin a Groundwater Management Area (GMA). Our district is the central district in a GMA of 5 GCDs. This necessitates

that all the GCDs in the GMA develo p rules and management strategies that accomplish the Desired Future Conditions (DFC) of the

aquifers in the GMA.

Currently there are 98 GCDs in the state which govern more than 95 percent of the useable groundwater which has been identified in Texas. GCDs are "the state's preferred method of management of groundwater" resources in this state (Chapter 36, TWC). GCDs are created and empowered by the state, and as such are political subdivisions of the state, similar to counties. Just as a county has certain responsibilities, powers, and authorities over a specific geographic area, so do GCDs.

GCDs have responsibilities and authorities to regulate the production of groundwater from the aquifers under the geographic territory encompassed by the GCD. These powers and authorities are outlined in Chapter 36 of the Texas Water Code (TWC).

A GCD's authority over the production of groundwater from an aquifer is just as absolute as the authority over the regulation of a river authority over the surface waters in their river basin.

That is how the State of Texas has set up the regulation and governing of its water resources: river authorities regulate surface water and GCDs regulate groundwater.

I hope this adds some valuable points of clarification for the readers.

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