Thou shall not covet thy neighbor's water: a look at the journey both Texas and the Middle East must embark upon to solve the kinks in their water regulation.

I. INTRODUCTION II. BACKGROUND

A. Texas Background

1. Original Adoption

2. From Tort Doctrine to Vested Property Right

3. Defining Absolute Ownership

4. Now Enter Senate Bill 1

5. Present Day Ownership

6. Persistence of the Rule of Capture

B. Middle East Background

1. Setting the Stage for Conflict

2. Turkey--Syria Iraq

3. Jordan Palestine--Israel

4. Saudi Arabia III. PROSCRIPTIVE MEASURES FOR BOTH TEXAS AND THE MIDDLE EAST

A. Reasonable Use Standard

B. Desalination IV. CONCLUSION

I. INTRODUCTION

When you think Texas, you likely picture the current President of the United States of America, George W. Bush. And, when you think President Bush, you likely think of the war in the Middle East. Regardless of political views on the matter, this serves as a connection between Texas and the Middle East. Yet, there is another, less obvious, connection that exists between these two areas: both face the challenge of how to structure their water regulation systems in order to preserve water for future generations. (1) After looking at the insufficient water regulations of Texas and countries in the Middle East, it becomes clear that both areas will need to undergo a massive overhaul in water regulations to ensure they preserve access to water. Each area will present two separate problems with regard to water regulations, but both may benefit from the same proscriptive measures in attempting to solve their water regulation problems.

II. BACKGROUND

A. Texas Background

1. Original Adoption

The English rule of capture (2) was adopted in the 1904 Texas case of Houston & Texas Central Railway Co. v. East. (3) In East, the plaintiff brought suit against the defendant railroad company for damages caused by digging a well that made the plaintiffs well run dry. (4) The Texas Supreme Court relied on the principles set forth in the English case of Acton v. Bundell to determine that one had a right to dig a well and, if that digging resulted in the drying of a neighbor's well, it would be deemed unactionable. (5) The East court necessitated the rule of capture doctrine by looking toward the principles set forth in Frazier v. Brown. (6) In Frazier, the Ohio Supreme Court found that no correlative rights with regard to underground percolating waters were recognized by law. (7) In justifying its decision, the Ohio court focused partly on policy considerations:

1. Because the existence, origin, movement and course of such waters, and the causes which govern and direct their movements, are so secret, occult and concealed, that an attempt to administer any set of legal rules in respect to them would be involved in hopeless uncertainty, and would be, therefore, practically impossible. 2. Because any such recognition of correlative rights, would interfere, to the material detriment of the common wealth, with drainage and agriculture, mining, the construction of highways and railroads, with sanitary regulations, building and the general progress of improvement in works of embellishment and utility. (8)

During this time, courts treated the rule of capture as a tort doctrine with regard to neighbors and the pumping of water. (9)

2. From Tort Doctrine to Vested Property Right

In Texas Co. v. Burkett, (10) the Texas Supreme Court fortified the rule of capture by interpreting it to be a vested property right and no longer a tort doctrine. In Burkett, the plaintiff sought to enact a contractual agreement with the defendant. (11) The defendant argued that the plaintiff did not own water and that the water actually belonged to the state; therefore, the plaintiff did not have a right to sell. (12) The court disagreed with the defendant and ruled that the plaintiff "plainly had the right to grant access to [streams] and the use of their waters for any purpose...." (13) The court in Burkett created a common law rule classifying water ownership as a vested property right. (14) There has been criticism with regard to groundwater falling under the umbrella of property rights. (15) Water ownership cannot satisfy the characteristics of an "efficient property rights system" including universality, exclusivity, transferability, and enforceability. (16)

3. Defining Absolute Ownership

After Burkett, other Texas courts began following the lead by interpreting East as expressing an absolute ownership principle. (17) The Texas Legislature codified this sentiment by enacting the Texas Underground Water Conservation Act of 1949, which recognized ownership and rights in underground water of "the owner of land, his lessees and assigns." (18) The years following the state legislature's adoption of the absolute ownership principle gave preference to protecting the water rights of farmers and ranchers. (19) This can be largely attributed to the rural influence present in that particular legislature. (20) Not until the 1960s--when legislative seats were being redistricted--did the Texas Legislature witness a rise in urban interests. (21) These urban interests viewed water in the agricultural sense until the 1980s. (22)

Notably, a majority of other states do not recognize private ownership of groundwater. (23) It is important to distinguish two types of water when discussing water ownership: surface water and groundwater. (24) Both surface water and groundwater have "different allocation rules, distinct conflict resolution frameworks, and separate administrative agencies." (25) In recognizing the value of water resources, however, the Texas Legislature has expressed a common goal of effective utilization of both groundwater and surface water sources to meet the present and future water needs in Texas. (26)

4. Now Enter Senate Bill 1

In 1997, the Texas Legislature enacted Senate Bill 1, which demonstrated that groundwater regulation should be "tailored to meet local water supply and population needs." (27) In order to accomplish this goal, the Texas Legislature created Underground Water Conservation Districts (UWCD). (28) Texas regulates its groundwater with UWCDs instead of using a regulatory scheme that creates a uniform set of rules across the state. (29) Subject to regional and state approval, UWCDs give residents who live close to water sources the power to establish rules with regard to water management. (30) This requires that each district analyze both available and anticipated water supply and demand in that particular district. (31) Once this analysis is completed, districts are to develop a plan addressing their management goals and objectives. (32) After this plan is submitted and approved by the Texas Water Development Board (TWDB), it is then integrated into the regional water plan and serves as the basis of action for a district. (33)

5. Present Day Ownership

The present day understanding of the rule of capture rests on the idea that a "landowner possesses the water beneath the surface by virtue of control over the surface." (34) Three principles guide the rule of capture in Texas: (1) water under the land belongs to the owner; (35) (2) the owner or assignee may pump as much water as he likes without being held accountable to others affected; (36) and (3) a party may sell whatever water is pumped to third parties, and such water may be used in other locations. (37)

To better understand the rule of capture, one must examine the limitations in place for owning, pumping, and selling groundwater. (38) One limitation on water ownership is the defining of exactly what water belongs to the state and what water belongs to the surface owner. (39) There are four categories of groundwater sources that determine to whom the water belongs: (1) underflow, (2) underground stream, (3) artesian, or (4) percolating. (40) Underflow of a watercourse and underground streams in defined channels belong to the state. (41) Watercourse underflow is defined as the portion of a surface watercourse that flows through sand and gravel deposits beneath the surface of the stream bed. (42) Courts will treat underground streams in defined channels as surface water--thus, not the sole property of the surface owner--if it has the same characteristics of a surface watercourse. (43) These characteristics include the presence of banks, beds that form a channel, and a current of water. (44) The importance of the artesian water restriction involves statutory provisions that prevent waste of this source and require permits for its withdrawal. (45) Percolating water belongs solely to the surface property owner. (46) Once a landowner has ownership over percolating water, further limitations are set in place to restrict what kind of usage may occur. (47)