A New Approach to Texas Groundwater Management: An Environmental Justice Argument to Challenge the Rule of Capture

Texas is the last remaining state to utilize the rule of capture, a doctrine based on English Common Law, as a means of regulating groundwater resources. Many of the western states originally used the rule of capture to regulate their groundwater resources, but over time, each of these states replaced the rule of capture with other groundwater laws and regulations. The Texas Water Development Board (TWDB) State Water Plan, Water for Texas-2002, warned Texans if current water usage and laws do not change, there will be an unmet need of 7.5 million acre-feet of water annually by 2050. This caused individuals in state and local government to begin asking the question, "How are we going to meet our future water needs?" In the search for a solution to the water shortage problem people have divided themselves into two groups: one wants to consider the implementation of water conservation measures to reduce per capita water use in order to meet future demands; while the other group wants to spend millions of dollars to build reservoirs and dams along with laying thousands of miles of pipeline to move water around the state. The fact that Texas has yet to come up with a definitive answer to their water shortage peaked my curiosity to research what caused the State of Texas to get to a point of having a shortage of fresh water and then look at possible solutions that incorporate water conservation measures. In my thesis I present a historical overview of the rule of capture as Texas's means of groundwater management in order to illustrate the role it played in contributing to the water shortage Texans now face. I also take a historical look at the environmental justice movement, a grass-roots movement by environmentalists and Civil Rights activists working together to guarantee the rights of low-income and minority communities to clean and healthy environments, focusing on several acts and policies enacted by the federal government as a direct result of this movement. I then demonstrate how the rule of capture is in conflict with these acts and policies along with being in violation of both state and federal regulations in an attempt to establish a sound argument as to why we need to replace the rule of capture not only from an environmental standpoint, but from a legal standpoint as well. After considering groundwater legislation in other states, I offer a possible alternative to the rule of capture as part of the solution to the approaching shortage of Texas's fresh water supply. The implementation of new laws, regulations and conservation measures will help conserve water for future Texans, but we must also consider a change in our relationship to water along with the attitudes and ideas that resulted in a water shortage not only in Texas, but on a global scale if we truly want to solve our future water crisis