Whose water is it, anyway?

Texans argued over water rights long before an epic fictional feud was brought to movie screens in 1958 by William Wyler’s The Big Country. Five decades later, bitter words and bruised egos may bubble up from Austin, where legislators and bureaucrats are considering possible future regulation of big aquifers that lie beneath the surface of this big state.

Texas’ Rule of Capture, adopted in 1904, permits landowners to pump as much water as they please from beneath their property. As long as that water doesn’t fl ood or erode a neighbor’s property, it usually can be used or sold at the owners’ discretion.

But recent prolonged droughts and Texas’ rapidly-growing population have led some environmentalists, researchers and government officials to question the state’s embrace of the centenarian Rule of Capture.

A state agency, the Texas Commission on Environmental Quality, called for written comments in April on its draft proposal for establishment of a groundwater conservation district that would govern the North Trinity and Woodbine aquifers beneath Dallas and 12 other counties.

And the Texas Water Development Board, or TWDB, estimates that the state’s population will nearly double, to 40 million, by 2050. Two years ago, the same agency said its studies indicate that state water supplies from all existing sources will decrease during the same period by 18 percent.

Some experts, however, believe conservation districts already established in many areas of the state will adopt sufficiently tough regulations to prevent draining of giant aquifers stretching beneath huge chunks of Texas real estate.

“I think the Rule (of Capture) is a bit outdated, but since it operates in conjunction with the statutory law establishing groundwater conservation districts, its impact is not as bad as it would be if all groundwater disputes were resolved using the rule” said Fran Ortiz, law professor at South Texas College of Law in Houston. Ortiz’ areas of expertise include natural resources and water law.

Professor Corwin W. Johnson of the University of Texas at Austin reported three years ago that the Rule of Capture “not only threatens the supply of water in Texas, but also deprives Texas landowners of rights they might otherwise have. They have no legal remedy for dewatering of their wells by others.”

Johnson added: “Nearly all other states abandoned it (the rule) long ago.”

The professor died six weeks after submitting his report to state officials.

In that report, he expressed dissatisfaction with several other states’ attempts to regulate groundwater. He concluded that it might be best to permit the Texas Legislature simply to address future groundwater problems and disputes as they become evident.

Environmental Defense, a New York-based non-profit organization with offices in Austin, suggests the Legislature should change the law to balance landowners’ rights to capture groundwater with the public’s interest in managing it for all users.

Environmental Defense also suggests that Texas should require current and future groundwater districts to set sustainable-yield caps on pumping. To date, though, the Rule of Capture remains strong in Texas.

U.S. Sen. Kay Bailey Hutchison, R-Texas, was asked to comment on the issue. But a member of her staff said she was unavailable.

The senator said on her Web site in 2005 that conservation can make a huge difference in water needs for Texas. She also added that her friends on the TWDB support creation of a comprehensive water use plan.

And she quoted British physician Thomas Fuller: “We never know the worth of water ‘till the well is dry.”