Gabriel Collins, J.D., “Overruling The Rule of Capture: What Can Texas Learn From 10 Other States’ Groundwater Law Updates?,” Baker Institute for Public Policy, Rice University, June 2021, https://www.bakerinstitute.org/media/files/files/ccdd8528/ces-pub-groundwater-laws-060321.pdf
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Texas groundwater common law is fundamentally based on principles developed in ancient Rome more than a millennium ago. It has also been nearly 120 years since the state adopted the “rule of capture,” which, as described by the Texas Supreme Court “essentially allows, with some limited exceptions, a landowner to pump as much groundwater as the landowner chooses, without liability to neighbors who claim that the pumping has depleted their wells.”
Since that landmark decision, Texas has grown into one of the largest economies and groundwater users in the world. Long-term water security is a necessary precondition for achieving another prosperous Texas century. Accordingly, the state acutely needs a common law system that can balance world-scale agricultural activity, industrial development, and urban growth while also protecting private property rights.
This analysis aims to provide a foundation for such discussions. It draws upon dozens of judicial and legislative decisions taken in 10 other American states that, at various points in the past 150 years, have transitioned from the rule of capture to another groundwater common law doctrine. Arkansas, Arizona, California, Florida, Kansas, Michigan, Nebraska, New Hampshire, Ohio, and Oklahoma offer a blend of unique and cross-jurisdictional insights that can provide an informed basis for policymakers in Texas, should they choose to update the state’s groundwater common law. In this group of 10 states, Ohio and Michigan offer especially relevant examples, as each adopted groundwater law doctrines that emphasize equitable balancing between competing uses while still respecting water owners’ property rights.