Charles Perry, a Republican senator from Lubbock and the Legislature's leading water expert, says the ominous forecasts for 2022 are too optimistic; he said that by 2050, Texas could face annual water shortages of up to twelve million acre-feet. (Municipal water reserves used by the entire state in 2023 were just over five million acre-feet.) “That's the one thing we're not addressing, that's going to be the limiting limit for the Texas we know and love today,” Perry said at the Water for Texas conference earlier this year. “The time has come. We can't go any longer without someone saying something.”
Part of the problem is the government's outdated approach to water policy. Texas follows the rule of taking, also known as absolute ownership, which allows landowners to take as much water from their property as they want, even if it negatively impacts neighboring properties. Critics argue that the capture rule incentivizes over-pumping and note that all other Western states have abandoned the rule, instead opting for an approach that requires “reasonable use.” In Texas, where private property is considered sacrosanct, it's harder to convince lawmakers to go beyond absolute ownership. But equating the rule of capture with private property is misleading, said Robert Glennon, professor emeritus at the University of Arizona College of Law and author of the book:Water madness: groundwater pumping and the fate of America's freshwater” “Property owners in Texas can't stop someone next door with a bigger pump and a deeper well from pumping groundwater out from under their property,” Glennon told me. “Instead of the right of private property, absolute property is more like a circular firing squad.”
The rule of capture, once an obscure provision of Texas law, is now on more people's radar after the fight over water rights in East Texas became public earlier this year. “This is the No. 1 issue, the one thing that everyone here cares about most,” Cody Harris, a Republican state legislator who represents the area, told me. “Usually it's property taxes, border security, education, things like that. But now and for the last several months, it's nothing but water.” The issue came to the fore when Kyle Bass, a hedge fund manager who built his reputation by betting against the subprime mortgage boom, announced plans in 2008 to intervene in the looming water crisis. Like Perry, he believed the 2022 Water Plan's alarming projections weren't ominous enough. “Whether it’s a blessing or a curse, I can identify major problems before they happen,” Bass told the University of Houston. Chronicle. A proponent of what he calls “environmental capital management,” or increasing property values through environmental protection, Bass has applied for permits that would allow him to drill dozens of high-producing wells on his East Texas ranch. The idea was to collect nearly forty-nine thousand acre-feet of water from the wettest part of the state and sell it to the fast-growing suburbs of Dallas. While such a plan would be perfectly acceptable under the occupation regime, and similar projects were already underway in other parts of the state, East Texans were outraged by the idea. (The Texas Water Resources Development Board concluded that the permits would allow Bass to withdraw more groundwater than is available in the area, but Bass said that this interpretation of his permits was misleading and that it would be “foolish” to take more water than the aquifer could handle.)
When Bass' application came before the Neches-Trinity Valley Groundwater Conservation District board, hundreds of people attended the meeting. (In Texas, water boards can issue well drilling permits but have limited ability to install pump caps.) The bass were there, too. When it was his turn to speak, he spoke in a simple tone. “I wear boots every day. I wear jeans every day. And I spend almost all of my time here in Henderson County,” he told the crowd. “The major problems in the state of Texas are power and water,” and he hoped to solve those problems by “doing things that are legally and scientifically responsible.” Dozens of residents followed him, most of whom spoke out against his plans. (Bass later called the crowd “extremely ignorant and uneducated on the subject” and “obviously very emotional.”) A gray-haired man in a plaid shirt, who said he could trace his ancestry back to the early settlers of Texas, called the area's water “a legacy to me and my family.” “Amen!” – shouted a woman in the crowd. “The aquifer… it won't be able to meet demand and it will harm people. It will kill people,” the man continued. (Recently, a judge stopped Bass's well-drilling project, which was being sued by local businesses. Bass responded sue resume the project.) The uproar was so great that for a moment it seemed that the Legislature might finally reconsider the takeover rule. Harris said he plans to challenge the policy at the next time lawmakers meet. “This is the first time in my career that the issue of changing the rules of capture has been discussed at such a serious level,” Mace of the Meadows Center told me. “I have a bowl of popcorn and I’ll be watching very closely to see what happens.”
