McGraw is the author of the recent book, A Thirsty Land: The Making of An American Water Crisis.
Even in the best of times, water in Texas has always been an ornery and mercurial resource. It falls from the sky in torrents in the sodden eastern counties along the Gulf of Mexico and falls sometimes not at all in the parched counties to the west where, in a good year, a foot or less of rain might make it to the ground.
And those good years have always been punctuated by bad ones. It’s almost a maxim that the climatological history of Texas is in a constant cycle of drought and flood, with periods of just plain hardship in between.
But now, most scientists agree, climate change is making those cycles more severe, the droughts drier and the storms more vicious. And Texas’ antiquated laws are potentially priming the state for a water crisis.
What isn’t changing with the climate is how Texas deals with water, particularly groundwater, which is being pumped relentlessly under a system of rules that were first laid down in 1904. It allows landowners to pump it to their hearts’ content, even if it drains every drop of water under neighboring property. It’s known as the “Rule of Capture.”
It stands in contrast to how the state, and many others in the West, regulate the use of surface water, which is legally considered a public resource and rights to it are granted on a first-come, first-serve basis.
That approach, many experts say, helped the state survive massive droughts in the past, but the state fails recognize groundwater’s related role.
The heart of the problem is that Texas views the looming water crisis less as a single problem, but as 100 different regional problems best addressed on a local level. Though they are linked in countless ways, one often replenishing the other, groundwater and surface water in Texas are viewed as entirely separate resources and are legally disconnected. State Rep. Lyle Larson, a San Antonio Republican who chairs the House Natural Resource Committee, puts it this way: “Texas has abdicated a global view of water.” Noted water expert Robert Gulley, who has been working on water issues both inside and outside state government for decades, is even more blunt. “Texas,” he says, “has repealed the laws of hydrology.”
With global warming exacerbating both extreme weather and drought, the laws of nature are becoming even less friendly to a state that ignores them.
At least one study, conducted by scientists at the World Weather Attribution Project, posited that last year’s Hurricane Harvey, which dumped up to 40 inches of rain along the Gulf Coast and caused some 80 deaths and $200 billion of destruction in its wake, was made three times more likely because of the effects of a changing climate. The drought that ravaged Texas and much of the West from 2011-13, causing more than $7.5 billion in crop and livestock losses in Texas alone, was at least in part the perfectly predictable result of adding roughly 1 degree Celsius to the temperatures in that region as a result of our profligate use of fossil fuels and our release of other greenhouse gases, actions that will continue to alter the climate for centuries, said the state meteorologist, John Nielsen-Gammon, in an interview at the height of that drought.
The escalating costs of those climate change-related damages loom over cities and states nationwide, but Texas’ crisis is closing in fast. Its population is expected to double from 24 million in 2010 to more than 54 million by 2050 according to the state demographer, putting exponentially more stress on its water supply.
State officials, among them Robert Mace, senior scientist and deputy executive director of the Texas Water Development Board, the state agency charged with developing the evolving Texas State Water Plan, freely acknowledge that Texas is ill-prepared for another storm like Harvey. Chillingly, they concede that Texas currently does not have the resources to make it through a major drought, like the historic decade-long drought that devastated Texas in the 1950s, the so-called Drought of Record, without serious, perhaps even deadly, consequences.
The Groundwater Blind Spot
The system for allocating surface water as a public resource—“First in time, first in right” is the way it is essentially distilled—is hardly perfect, most experts say, noting that the state’s waterways are over-allocated. There are more entities and people with legitimate claims to the water than there is water, even in good years. But the system has provided a paradigm for allocation of surface water, which, though contentious, has survived through a couple of deep droughts in the past two decades.
Groundwater, in contrast, is viewed not only as wholly separate from surface water, but as first and foremost a property right. Under a system abandoned elsewhere in the West more than a century ago because it was found to be unworkable—though it still remains the law in some states in the East—in Texas the view is that a landowner controls everything above his land and below from the sky to the center of the earth, and that includes groundwater. The Rule of Capture has led to a long list of tales of how once-lush springs, like the once-world-famous Comanche Springs in the desert at Fort Stockton, simply dried up because of over-pumping. In its simplest formulation, the law can be boiled down to: “Whoever has the biggest pump wins.”
This system has put Texas at odds with its neighboring states, particularly those that share the overdrawn Ogallala Aquifer. Drive west into New Mexico through the little town of State Line, Texas, and you’ll be met with a stunning image. While Texas’ emerald-green fields glitter in the relentless sun, their thirsty plants slaked by massive pivot irrigation systems, New Mexico is as parched and unforgiving as it was when Coronado first stumbled through here almost 480 years ago.
Those states that share the aquifer view Texas’s race to the bottom of the Ogallala with a jaundiced eye, especially since they have taken steps to limit withdrawals. New Mexico and Colorado, for example, use a first-in-time system, similar to the one applied to surface water in Texas. Oklahoma, taking its cue from a system developed more than 100 years ago in California, and recognizing that groundwater and surface water are linked in innumerable ways, has adopted a correlative rights system in which ownership of a piece of land entitles you to a percentage of the water in an aquifer, but you don’t have an absolute right to ownership of the groundwater or the right to pump it without limits. Nebraska uses a similar system, but adds the caveat that the water must be used for beneficial purposes.
It’s not that Texas lacks the authority to regulate groundwater. In 1917, after two deep and destructive droughts, voters amended the state constitution to state in no uncertain terms that “the preservation and conservation of…natural resources of the State are each and all hereby declared public rights and duties; and the Legislature shall pass all such laws as may be appropriate thereto.”
Indeed, over the years, some halting steps have been taken to circumscribe the Rule of Capture. That authority, however, has been delegated to some 100 local groundwater districts, each defending parochial interests, and each mindful that in Texas, political survival often depends on recognizing that individual property rights are paramount. Those local authorities most often, for example, set permits based less on the conditions of underlying groundwater than on the landowner’s historical usage, as long as the water is used for a beneficial purpose, a remarkably elastic term. Indeed, that decentralized, sometimes maddeningly chaotic system, has led to some bizarre and perverse incentives not to preserve water but to use it, even in dry times, and has in the recent past been used to justify catfish farms in the dry scree outside of San Antonio and to test plots of rice in the arid basin outside of Fort Stockton.
But for a number of reasons—perhaps because Texans are by nature and history a stiff-necked and individualistic bunch, or that the courts have increasingly in recent years been unwilling to legislate from the bench, or because, as many have quipped, the Texas legislature has been unwilling to legislate from Austin—the Rule of Capture remains the dominant feature of Texas water law.
As Texas Supreme Court Justice Nathan Hecht put it in his concurrence to a 1999 case that reluctantly again upheld the Rule of Capture, “Not much groundwater regulation is going on.”