Water Does Mix with Oil

Abstract

In early July 2012, the U.S. Department of Agriculture declared over 1000 counties in twenty-six states as natural-disaster areas. The widespread emergency shared one thing in common: an alarming lack of water. Water is a fundamental resource of our society. Without water, residents in a locale cannot grow food, support industry, or even inhabit an area. In times of drought or in geographic regions where there is hardly any rain at all, people often turn to groundwater. Wells are easy to install, and at first glance appear to offer unlimited amounts of water to a land thirsting for more. There is a great deal of variation in the ways that states allocate rights to groundwater. Over time, common law developed five methods for allocating groundwater rights. The first three methods--reasonable-use rule, appropriative rights, and regulated riparianism--mirror methods for managing surface water. In tandem with the fourth, correlative rights, these methods are designed around some method of sharing or using the water appropriately. The fifth and rarest method is right of capture. Under the right of capture, there is no limit to the amount of groundwater a landowner may withdraw, regardless of the effect on others, so long as the withdrawal is not unreasonable or malicious. As one the few states that still employ this method, Texas has held onto the rule of capture since the Texas Supreme Court’s 1904 decision in Houston & Texas Central Railway *1012 Co. v. East that a company could pump as much water as it liked, even if it dried up a neighbor’s well.