By Christopher Waghorn Gwin

Ever heard of the rule of capture?
Unkindly, but accurately, referred to as the “law of the biggest pump,” this decision handed down by the Texas Supreme Court in 1904 allows landowners to pump as much water as they are able to – even if that means the neighbor next door with the smaller pump and the shallower well never gets another drop.
But that was a ruling in 1904, and times have changed, right?
Nope. In 1999 the Texas Supreme Court unanimously upheld the rule of capture, finding for the defendant – Ozarka water – and saying that they were not liable for the neighboring well going dry, despite the fact that all the science available indicated that Ozarka’s pumping was responsible.
So with ever-bigger pumps and ever-thirstier neighbors (and, more particularly, thirsty neighboring communities), the rule of capture has taken on a somewhat more ominous tone.
As cities and growth corridors (such as I-35) grow larger than the natural resources locally available to support them, planners are looking to import water.
Enter the water marketer. These are the wildcatters of today – they are risky, clever and adventurous businessmen, with huge investments and huge profits possible.
While it remains to be seen if it’s a good time to be a water wildcatter, if you have the financial backing it is certainly an easy time to be one.
People are so scared of having their water sold out from under them that they’ll sign away their water rights. Not because they want to, necessarily, but out of fear that their neighbor will beat them to the punch and they’ll be left with nothing to sell and nothing to drink.
And because buying, selling and moving water is a new business, it’s not as scrutinized as say, the oil industry, where contracts, royalty payments and other rights have been vetted over time and are well-documented in the public record.
Right now this water speculation seems over-much like a shell game. The contracts presented by the variety of water marketers run the gamut from the earnest and fair to pure swindles.
Don’t get me wrong – we have to be prepared to funnel our resources to where they are needed and to make sure they are well-used. We do that with food – that’s how cities came into being. As cities grow, someone will have to step in and provide water and business has always done a good job of allocating resources efficiently.
But to use the rule of capture as the main instrument of planning is simply not enough.
Enter the Texas Legislature. In response to the Supreme Court’s 1999 ruling upholding the law of capture, the Lost Pines Groundwater Conservation District and others were formed by legislative action, to join the districts already in existence.
Thus local control for local resources. It makes perfect common sense and that was probably a driving force behind the Texas Legislature’s decision to create small groundwater control districts.
Small districts, with locally appointed boards, now watch over much of the state’s groundwater, coordinating their efforts under the oversight of the Texas Water Development Board.
Multiple districts may be “managing” the same aquifer and each of those may have different regulations and stipulations for that same aquifer.
This hodgepodge of regulations and policies across the state makes it awfully easy to create a court case against any given water district.
And just who would want to threaten a lawsuit against a groundwater conservation district?
Why, anyone who has their pumping permit denied.
The questions, the players and the stakes in these aptly dubbed water wars are too large for the state legislature to foist it all upon these local districts without giving them the tools – and the power – to deny permits.
Without those tools, these conservation districts are more like monitoring districts – recording who is pumping how much and providing good science on what is happening to the aquifer, but without the power to conserve a single drop.
If the biggest pump wins, rural areas are sure to lose. We can and should share our water with those areas of the state that are in need. But having a free-for-all of this magnitude will leave a few very big winners and a whole lot of losers.
The groundwater conservation districts have done what they can and are continuing to fight the good fight. It’s time that the state legislature that created them to take responsibility and create the laws these districts need to conserve our resources.