Texas High Court Backs State
Rule Of Capture As Water Law

AUSTIN — Ed Small can stop worrying now, at least about the Texas Supreme Court.

"The big water issue isn't really in the Legislature," Small had said in late April during the spring Ag Forum meeting in Austin. "It's in the Supreme Court. It's the Ozarka lawsuit."

It's a lawsuit that originated in East Texas when Ozarka, a bottled water company, found water that they wanted to use.

"They take a lot of water out of the ground every day, bottle it and sell it," explained, a lobbyist with an Austin law firm representing among others the Texas and Southwestern Cattle Raisers Association.

Neighbors complained that Ozarka's pumping was drying up their wells, and they filed a lawsuit.

That lawsuit went to the Texas Supreme Court. The issue was whether Ozarka has the unregulated "right of capture" that Texas law has recognized since the early 1900s.

Ozarka's neighbors contended that the Supreme Court should change water law in Texas and move away from the right of capture to something called the "rule of reason."

Small said a lot of friend of the court briefs were filed in the case, mostly siding with Ozarka.

"The reason is to maintain that right of capture which is a very valuable property right and the basis upon which all ground water law in Texas today is built," said Small, who specializes in water law.

Last week, he got his wish.

The Texas Supreme Court upheld a Court of Appeals decision that Senate Bill 1, passed by the 1997 legislature, can localize water planning through the development of regional water planning districts in the State of Texas, said Ben Weinheimer, regulatory manager for the Texas Cattle Feeders Association.

"TCFA supports the right of capture," Weinheimer said.

The Texas high court ruling, released last Thursday, upheld the state's water law that allows landowners to pump groundwater from beneath their property. The court affirmed rulings by the state district court and an appeals court.

The Supreme Court said any modification to the law should be made by the Texas Legislature or through a state constitutional amendment.

In applauding the court's ruling, Cattle Raisers President J. Mark McLaughlin, San Angelo, noted that "predictability of the law is absolutely essential to the operation of any business, and this decision continues one of the fundamental elements of the ownership of private property."

In addition, McLaughlin added, the decision "further reinforces the decision made by our association to support Senate Bill 1 in the last session, which provides a means of local control for the regulation of groundwater withdrawal. Property rights and local control are two basic principles of our members."