County officials question century-old water rights law

As the fight over groundwater rages on, some Hays County officials are questioning the relevance of the century-old law outlining water rights, which they believe is archaic.

Rule of capture, a state law that is more than 100 years old, allows landowners the right to capture all groundwater they can obtain.

Lon Shell, Hays County Pct. 3 Commissioner, said this system has caused problems in the past for Texas and a new form of groundwater regulation would be a more sensible solution for the county.

“Doesn’t my neighbor have the same rights as I do? There has to be a way to provide rules to protect each other’s property rights,” Shell said. “I can’t use my property rights per the detriment of another individual.”

While the state has worked on alleviating some of the major flaws with the Rule of Capture, officials have never legislatively abolished it.

In 1949, the 51st Texas Legislature established the creation of the groundwater conservation districts in an attempt to regulate excessive groundwater pumping.

The creation of groundwater districts in 1949 was meant to control and regulate excessive pumping, and the law is still in existence today.

Linda Rogers, president of the Hays Trinity Groundwater Conservation District, said the system does not work and will have to change, as water becomes more of a valuable resource in Texas.

“As long as we continue to value property rights over everything, the system will not change,” Rogers said. “You hear some chatter about it in the legislature every session, but talking about changing property rights is like having a noose around your neck.”

Rogers said the Rule of Capture can make the regulatory job difficult, but predicts the system will change in the next decade as Texas continues to fight groundwater battles.

“The water under your property may be yours, but what is failed to be understood is that water doesn’t just sit in one place – it moves,” Rogers said. “So if your neighbors’ wells go dry, so will yours.”

According to the History and Evolution of the Rule of Capture by attorney Harry Grant Potter, Texas stands alone as the only western state that continues to follow the Rule of Capture.

“This is an issue that does not follow political lines,” Shell said. “The Rule of Capture, at least in Central Texas, doesn’t make sense. People understand the importance of our resources, especially water.”

In Sipriano v. Great Springs Water of America, Inc. (1999), the Texas Supreme Court refused to overturn the rule of capture in favor of reasonable reuse. Despite the ruling, Justice Nathan Hecht’s concurring opinion outlines what he believes are apparent flaws with the Rule of Capture.

“It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV,” Hecht wrote. “It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”

Over the course of 50 years, the Texas Supreme Court has overwhelmingly reiterated the legislature’s power to regulate groundwater, based on recent cases, Potter wrote. If these regulations were to be adopted at a statewide level, it could make the Rule of Capture obsolete.

Shell said he is in support of the Texas Legislature granting local districts more power to work towards reasonable rules to protect property rights while regulating groundwater.

“The Rule of Capture may work in other parts of the state, but I do know it does not work here,” Shell said. “We need better rules to protect each others’ rights. Your rights end where someone else’s begin.”

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