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Rule of Capture is Alive and Well in Bexar County

Landowners in Bexar County may be facing an EP like situation despite the fact that a groundwater conservation district - the Trinity Glenrose GCD - exists in Bexar County. This is because Trinity Glenrose's enabling legislation exempts public water supply wells completed before September 1, 2002 from any regulation.

Texas Water Supply Company, LLC has plans to pump 32,000 acre feet from the Trinity Aquifer from two well fields to the south and to the east of Camp Bullis . See article in the San Antonio Business Journal. The area is in GMA 9 but on the border of GMA 10. Because Trinity Glenrose has no authority to regulate production from these wells, the developers can pump unlimited amounts of water even if doing so draws down nearby wells. Under the Rule of Capture, nearby landowners cannot sue the developer if their groundwater is depleted.

This situation is yet another example of why the Rule of Capture, with respect to groundwater, deprives landowners of the ability to protect their property rights and why it complicates groundwater management (see article on EP situation). If this project produces 32,000 acre feet of groundwater a year, it will surpass the Modeled Available Groundwater for the Trinity Aquifer in Bexar County both in GMA 9 and GMA 10. According to the General Manager of the Trinity Glenrose GCD in a letter addressed to GMA 9 and GMA 10, "[t]he proposed additional withdrawal now makes it that much more difficult, if not almost impossible to manage this resource effectively and in concert with the DFCs set within our GMA."

In the most recent case upholding the Rule of Capture in Texas, Sipriano v. Great Springs Water of America, Justice Hecht wrote in his concurring opinion, “what really hampers groundwater management is the established alternative, the common law rule of capture…It is hard to see how maintaining the rule of capture can be justified as deference to the Legislature’s constitutional province when the rule is contrary to the local regulation that is the legislature’s preferred method of groundwater management.”

The Texas Supreme Court was incorrect when it said that the Rule of Capture is not antithetical to ownership of groundwater in place in its 2012 decision in Edwards Aquifer Authority v. Day. It may not be antithetical to ownership with respect to oil and gas development, but with respect to groundwater, the Rule of Capture prevents landowners from protecting their property--property which sustains life and must be conserved in place.

It is the responsibility of groundwater conservations districts to ensure that groundwater is conserved. And this recent groundwater development project in Bexar County, just like the Electro Purification proposal in Hays County in 2015, is another example of how the Rule of Capture is preventing groundwater districts from doing their job.

It is time for the Texas Supreme Court to abolish the Rule of Capture with respect to groundwater. TESPA made this argument with respect to EP, and we are ready to make it again.