Why liberal and conservatives should defend the Rule of Capture.
The Observer has had two pieces lately on the skulduggery of the water business in Texas. The skullduggery is not new but the means and the shear size of the theft are so great that they should be of concern to both libertarian liberals (or librarian liberals, I forget which) and property-rights conservatives. Yet no one makes a peep—not a loud peep anyway—that our water resources in the State of Texas are changing hands. Forever.
Conservatives and liberals finally find something we can agree on, and nobody will touch it? It doesn’t make sense—unless maybe it is just so complex and stealthy that people are just not paying attention. Kind of like the snake swallowing the bunny. Maybe it feels good at first. Who knows? But keep your eye on your water. You are the bunny and you are being swallowed by the snake.
The Observer has a small piece in the August 20th issue up arms with the Rule of Capture, as if this ancient rule from English Common Law was the root of all this evil. It is not. The Rule of Capture has been applied to oil and gas, as well as to water and animals. In normal use, no one has ever thought it restricts the governing authority’s rights to set the maximum rate of harvest of water, oil or animals. In fact, deer were the reason for the Rule of Capture in England. Called ferrae naturae, deer wander from estate to estate, so no one really owns them until they are shot. Using this ancient principle, the Texas Parks and Wildlife Department set rules about the number of deer that can be hunted each year without a problem.
Water harvesters see things differently. And this is not the first time the rich and powerful have tried to twist the Rule of Capture to make a profit.
Oil and gas went through this in the 1930’s. Some people wanted the government to sanction, or even help them, capture more than their fair share. Greedy bigwigs argued the Rule of Capture was as an absolute prohibition on government control of production methods, even if the ensuing melee permanently damaged the oil field. They went to the Supreme Court several times but, in the end the court decided that the Railroad Commission did have the authority to regulate production methods and volumes. Not only that, the commission could allocate the reserves in an oil and gas reservoir in such a manner that everyone who owned mineral rights in that pool had a reasonable chance to produce that oil, either through drilling or leasing to someone else. If you have 40 acres in Texas, you have a right to drill a well and to produce the resources on a fair basis with your co-tenants and neighbors. It’s still the law today.
Imagine for a minute if the Railroad Commission had taken a different approach, the approach taken by today’s so-called “Property Rights Republicans.” Suppose they had said that the first three drillers into an oilfield got to produce all the oil in the whole field and all those other owners just got shut out. Then these champions of small government would have had to set up a new bureau to keep anyone else from drilling on his land. Imagine that. There would have been suing, but first there would have been killing. No one had to tell the average Texan back then that it was cheating for his government to use its power to keep him, or her, from doing what his neighbor was allowed to do. Regulate method, limit withdrawal, yes.
Take it away, no.
Well aren’t we lucky now that we have a Property-Rights-Republican-dominated legislature to protect us from these big government property grabs? There’s no way that these good Christians would give all the underground water in the state to a few fat cats and just take it away from the rest. Is there?
Yep, that’s just what they’ve done, and they seem to be getting away with it. There was also an article in the Sept. 3 edition of the Observer about water right, but the facts discussed by Forrest Wilder really apply only to the Ogallala Aquifer’s fossil water—that is water that does not get recharged. Most other Texas reservoirs are recharged by rainfall so that there is a sustainable rate at which water can be withdrawn. As you might expect by now, the legislature’s way of dealing with recharge reservoirs is just as crazy as the ways that they deal with the Ogallala. Unfortunately, you are going to have to sit down and understand a little bit about how the smoke and mirrors work.
The state has divided the counties into 16 Groundwater Management Areas. Within those areas, it has politicked to get sub-areas, from a part of a county to several counties, to vote themselves into a Groundwater Conservation Districts. These little districts all have different rules and procedures, but all are required to come up with a vision of what they want their water resources to look like in 50 years.
This makes no sense for the Ogallala as Wilder has pointed out. This makes some sense for recharge reservoirs, if it were done reservoir wide. It’s not. Our leaders believe that the government that governs best is the government that governs with the least competence. Therefore, the Texas Water Development board tells each little district how much water it can produce and then these little districts are set loose hog wild to say who gets all the underground water.
There are several things that these little districts cannot do. They cannot forbid or treat export water differently. T, Boone Pickens would definitely not like that. Nor can they refuse a permit to anyone who has a legitimate use for water now, regardless of how much or how little or how much land he owns. And, once that little district reaches its maximum mandated pumpage rate, it cannot ever issue any more permits to drill commercial water wells, though there is a small exemption for household and livestock water.
Yep, it’s first come, first served. The big boys get their water in perpetuity. The little districts will continue as little fiefdoms using the heavy hand of government to keep landowners from drilling and using the water that the law says they have always owned.
No one is suggesting that they ought to be able to produce more than their fair share, but a fair share would be nice. As you might expect, there is some suing here. No killing yet but that may be because landowners today are so distracted by their iPods and wombat widgets that they have not yet seen the sleight of hand. I do not mean to imply the legislators behave like carnival barkers but, it’s tempting.
So who are the big boys, the fat cats that are going to end up with all our water? Well, the biggest and fattest so far is the City of San Antonio. A few years ago, we learned that the city was pumping not only more than their share of the Edwards Aquifer, but more than the whole aquifer can produce. The early water legislation came out of San Antonio’s emergency. The lege could have suggested that San Antonio should buy water rights from willing sellers and buy the water they need, but naaaaaaaa. Republicans would never do that.
Instead, they grandfathered everyone’s over-pumping of the reservoir, and told anyone who was hoping to save the family homestead’s water rights for the grandkids, well, sorry. San Antonio took their rights away by being first to be greedy. Yours is a dry land farm now and it will always remain so. These strict Constitutionalists must not have read the whole thing.
Just the gun part.
There are currently 98 ground water districts making these decisions, but much of the state remains without one. What’s going to happen to the “white” areas of the map where no district currently exists? My guess is that they won’t stay white for long because they are the only place where a landowners water rights are still safe, but only if he or she out-drills the neighbors. Some of the best under-pumped areas of Texas lie within these white areas and those big boys, the ones John Henry Faulk called the “Water Hustlers,” are coming back with a vengeance.
A fair solution would really have been the simplest. Just allocate an aquifer’s maximum potential pumpage to all the land covering that aquifer on either an acre, or an acre-foot basis. That’s what engineers are for. Let people who own the land sell those water rights, keep them or use them as they see fit. Don’t just steal it in the name of God, mother and small government. It wouldn’t be that hard to do and you wouldn’t need the perpetual force of 98 little district-armies lurking around the state to keep landowners from drilling wells.
This really ought to be something that Republicans (of any stripe besides thieving Republicans) and Democrats (all except no-property no-how Democrats) can agree. Yet it doesn’t seem to be happening.
It is not a new problem. If you want to read more, read More Water for Texas, Walter Prescott Webb, University of Texas Press, 1954.
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