To the astonishment of water owners and users across Texas, the state Supreme Court has agreed to hear a challenge to the rule of capture, the basis of all Texas underground water law. This much-criticized doctrine allows landowners to pump as much underground water as they want, even if the pumping dries up their neighbors’ wells—which is exactly what happened in the case that will be argued before the court in November. Ozarka, the bottled-water company, has been pumping 90,000 gallons of water a day from springs in Henderson County. Several neighboring owners brought suit, claiming that heavy pumping caused their own wells to go dry. The plaintiffs were poured out (an apt colloquialism) without a trial and fared no better in an intermediate appellate court. The Supreme Court may have been influenced to take a new look at an old doctrine by the Legislature’s ducking of the groundwater issue in 1997 water legislation; the message to lawmakers is, If you don’t regulate it, we will. By threatening to open the door to lawsuits for harmful pumping, the court may be trying to force landowners to seek the protection of regulation. With Texas facing a future in which water may be more precious than oil, the days of the unfettered right to capture are numbered.
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