A Conversation about the Rule of Capture

The struggle to protect groundwater as groundwater conservation districts navigate managing a privately owned, yet shared resource.

Water in the Desert 2026
Feb. 12 – 1:45 pm Session

Groundwater law can sound abstract until a well runs dry.

That was the underlying tension in a timely conversation featuring Dr. Robert Mace of the Meadows Center for Water and the Environment at Texas State University and Robert Potts, West Texas landowner, Dixon Water Foundation board member and former general manager of the Edwards Aquifer Authority. Their discussion examined the long-standing Texas doctrine known as the rule of capture, the protections and limitations of groundwater conservation districts, and the growing pressure on lawmakers to reconsider how the state manages groundwater in a time of rising demand.

The conversation made clear that what may seem like a technical legal framework is, in practice, a question of property rights, local control, sustainability and who bears the risk when water becomes scarce.

A century-old doctrine with modern consequences

Mace explained that the rule of capture was established in Texas in 1904 through a Texas Supreme Court decision involving a railroad company that drained a household well. The ruling adopted a principle rooted in English common law: landowners may pump groundwater beneath their property without liability for impacts on neighboring wells.

As a result, he said, the rule allows landowners to pump water even if it dries up neighboring wells or springs.

“Under rule of capture, you can pretty much do whatever you want,” Mace said. “You can pump as much as you want, dry up springs, dry up your neighbor’s wells — and your neighbor is unlikely to succeed in court.”

There are a few limits. Pumping cannot be done maliciously with the intent of harming a neighbor, and landowners may be liable if groundwater pumping causes land subsidence. But otherwise, the rule of capture gives landowners broad authority over the groundwater beneath their property.

What regulation can provide

Potts said groundwater conservation districts can provide an important counterbalance by creating rules and protections that do not exist under unrestricted pumping.

Drawing on his experience with the Edwards Aquifer Authority, Potts described how groundwater regulation initially faced strong resistance from landowners, especially irrigators. But over time, he said, the system revealed important benefits.

The first was protection. Without some form of management, he noted, a neighboring landowner or city could drill a well and capture water that otherwise supported nearby landowners.

“You don’t have to just go to court to try to stop your neighbor from over-pumping you,” Potts said. “You’ve got protection there.”

The second benefit was clarity. Once permits were established, landowners had a more defined water right, which could be planned around, defended and in some cases transferred.

That, Potts said, created real value. In the Edwards region, some farmers who had once opposed regulation found they could improve irrigation efficiency, continue farming with less water and sell a portion of their permitted water to other users.

“What we found was farmers were making money and able to keep farming because they were able to sell their water rights,” Potts said.

The idea of a “fair share”

Mace said one Texas Supreme Court case involving the Edwards Aquifer Authority introduced the concept of “fair share” in groundwater management.

That idea has helped shape interest in what are known as correlative rights, an approach that ties water production rights to surface acreage, sometimes with additional geologic considerations.

Under such a system, each landowner is allocated a share of groundwater based on acreage, creating a more defined and predictable right that can then be used, leased, sold or left in place.

“It protects your private property right,” Mace said. “Then you decide what you want to do with it.”

Mace pointed to districts that have adopted versions of that approach, arguing that it can offer a more structured alternative to the uncertainty that exists under pure rule of capture.

Why the issue is heating up now

For years, talk of changing the rule of capture surfaced from time to time without gaining much traction. Mace said that may be changing.

He pointed to a proposed groundwater export project in East Texas that has drawn the attention of lawmakers and moved the issue squarely into the legislative spotlight.

“We’re in very interesting times in groundwater,” Mace said.

He noted that recent hearings at the Capitol included substantial discussion of groundwater exports and the rule of capture. While he suggested completely overturning the doctrine would be difficult, he said there appears to be growing momentum to revisit some aspects of the current system, especially in areas without groundwater conservation districts.

“There’s a strong incentive to change the status quo,” Mace said.

Protection depends on where you are

A recurring theme in the discussion was the unevenness of groundwater management across Texas.

Some areas are covered by groundwater conservation districts. Others are not. In those areas without districts, landowners may have little recourse if a large user arrives and begins pumping heavily.

“If you don’t have a groundwater district, you don’t have any protection,” Mace said.

Even where districts exist, the speakers noted, effectiveness depends on how well they are structured and whether they have the authority, funding and legal capacity to carry out their responsibilities.

Mace cautioned that districts cannot simply prohibit exports, but they can establish rules, review permit applications and impose conditions through the legal processes available to them.

He also stressed that districts must take their management responsibilities seriously if they hope to achieve desired future conditions for an aquifer.

“If there is no cap, there is no way of management,” Mace said. “You deplete the aquifer.”

A growing test for Texas water policy

Both speakers tied the issue to broader growth pressures across the state.

As Texas cities expand and industrial demands increase, groundwater is becoming more contested. Mace pointed to growing water needs along the IH 35 corridor, as well as demands associated with data centers, chip manufacturing and continued population growth.

“It’s going to get more interesting,” Mace said. “And I’m using ‘interesting’ in the sense that a car wreck might be interesting.”

By the end of the session, the legal doctrine at the center of the conversation no longer seemed abstract. The rule of capture may have been shaped by a 1904 court decision, but its consequences are playing out in real time across Texas, especially in places where water is limited, demand is growing and the margin for error is shrinking.

The discussion left little doubt that groundwater policy is entering a consequential moment. Whether that leads to stronger local management, new legislative tools or a rethinking of old assumptions, the stakes are no longer theoretical. In Texas, the future of groundwater will shape the future of communities, working lands and springs that depend on it.