Texas’s Water Wars

Charles Perry, a Republican state senator from Lubbock and the legislature’s leading water expert, believes that the ominous 2022 projections are too optimistic; he has said that Texas may face an annual water deficit of up to twelve million acre-feet by 2050. (The municipal supply used by the entire state in 2023 was a bit more than five million acre-feet.) “This is the only thing that we’re not addressing that is going to be the limiting cap on the Texas that we know and love today,” Perry said at a Water for Texas conference earlier this year. “The time has arrived. We can’t go any longer without somebody saying something.”

Part of the problem is the state’s antiquated approach to water policy. Texas follows the rule of capture, also known as absolute ownership, which allows landowners to draw as much water from below their property as they’d like, even if this has a negative impact on neighboring properties. Critics argue that the rule of capture incentivizes over-pumping, and note that every other Western state has jettisoned the rule, instead opting for an approach that mandates “reasonable use.” In Texas, where private property is regarded as sacrosanct, it’s been harder to get lawmakers to move beyond absolute ownership. But it’s misleading to equate the rule of capture with private property, according to Robert Glennon, an emeritus professor at the University of Arizona’s College of Law and the author of “Water Follies: Groundwater Pumping and the Fate of America’s Fresh Waters.” “Property owners in Texas can’t prevent someone next door with a bigger pump and a deeper well from sucking groundwater from underneath their property,” Glennon told me. “Instead of a private-property right, absolute ownership is more of a circular firing squad.”

The rule of capture, once an obscure provision of Texas law, is now on more people’s radar after a fight over water rights in East Texas went public earlier this year. “This is the No. 1 topic, the one thing that everybody cares about the most here,” Cody Harris, a Republican state legislator who represents the area, told me. “Usually, it’s property taxes, border security, education, things like that. But right now, and for the last few months, it’s been nothing but water.” The issue came to the forefront when Kyle Bass, a hedge-fund manager who cemented his reputation by betting against the subprime-mortgage boom, in 2008, announced plans to intervene in the looming water crisis. Like Perry, he believed that the worrying projections in the 2022 Water Plan weren’t ominous enough. “Whether it’s a blessing or a curse, I can identify significant problems before they happen,” Bass told the Houston Chronicle. A proponent of what he calls “conservation equity management”—that is, increasing property values through environmental stewardship—Bass applied for permits that would allow him to drill dozens of high-capacity wells on his East Texas ranch. The idea was to pull up to nearly forty-nine thousand acre-feet of water from the wettest part of the state and sell it to the fast-growing Dallas suburbs. Although such a plan is perfectly acceptable under the rule of capture, and similar projects are already under way elsewhere in the state, East Texans bristled at the idea. (The Texas Water Development Board has concluded that the permits would allow Bass to withdraw more groundwater than is available in the area, but Bass has said that such an interpretation of his permits is misleading, and that it would be “silly” to take more water than the aquifer could sustain.)

When Bass’s application came before the board of the Neches & Trinity Valleys Groundwater Conservation District, hundreds of people showed up to the meeting. (In Texas, water boards can approve well-drilling permits, but have a limited ability to adopt pumping caps.) Bass was there, too. When it was his turn to speak, he struck a folksy tone. “I wear boots every day. I wear jeans every day. And I spend about all my time out here in Henderson County,” he told the crowd. “The state of Texas’s main problems are power and water,” and he was hoping to address the issue by “doing things that are responsible by law and by science.” He was followed by dozens of residents, most of whom spoke in opposition to his plans. (Bass would later call the crowd “woefully uninformed and uneducated on the subject” and “obviously very emotive.”) A gray-haired man in a checked shirt who said that he could trace his ancestry back to early Texas settlers called the area’s water “an inheritance for me and my family.” “Amen!” a woman in the crowd shouted. “The aquifer . . . it’s not going to be able to keep up with demand and it’s going to hurt people. It’s going to kill people,” the man went on. (A judge recently halted Bass’s well-drilling project, which is facing a lawsuit from local businesses. Bass has responded by suing to reinstate the project.) The furor was heated enough that it seemed briefly as if the legislature might finally reconsider the rule of capture. Harris has said that he plans to challenge the policy the next time lawmakers meet. “It’s the first time in my career where discussions have been at this serious level, about considering changing rule of capture,” Mace, of the Meadows Center, told me. “I’ve got my bowl of popcorn, and I’ll be watching very closely to see what happens.”