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.

There are two common law restrictions on a landowner's right to capture, pump, and sell percolating water. (48) First, a surface owner may not "maliciously take water for the sole purpose of injuring his neighbor ... or wantonly and willfully waste it." (49) There is, however, criticism of this limitation because some feel that proving the malice intent element is too difficult and, therefore, makes such a limitation ineffectual. (50) Additionally, there is a belief that the Texas Supreme Court created a major escape hatch by stating that "waste" refers only to "waste in use" and not "water lost during transport." (51) This distinction between use and transport was articulated in City of Corpus Christi v. City of Pleasanton where the court allowed a city to extract ten million gallons of water a day for transport without classifying it as waste. (52) The Texas Supreme Court, however, later came back in Bragg v. Edwards Aquifer Authority (53) with a broader definition of "waste" as it applied to the rule of capture limitation. It has been suggested that Bragg "opened the door for future Texas Legislatures to finally empower locally elected groundwater conservation districts with the powers necessary to regulate groundwater withdrawals without running afoul of the rule of capture." (54)

The second limitation stipulates that a landowner may not cause subsidence in neighboring land to occur through use of water on his land. (55) This limitation was created in Friendswood Development Co. v. Smith-Southwest Industries where the Texas Supreme Court ruled that a negligent subsidence exception allows for deterrence of excessive underground water withdrawals and resulting land subsidence. (56) The basic policy behind the court's ruling rested on the idea that "ownership and rights of all landowners will be better protected against subsidence if each [landowner] has a duty to produce water from his land in a manner that will not negligently damage or destroy the lands of others." (57)

With these restrictions in place, however effective they may or may not be, the rule of capture still allows a landowner to appropriate waters while on his land and make whatever use of that water he chooses. (58) All of this is without regard to the fact that his use may cut off the flow of water toward neighboring land, thus depriving that neighboring landowner of water use. (59)

As one might imagine, the rule of capture has led to controversy, (60) but more importantly, it has also led to a massive depletion of water supplies. (61) A major part of this depletion can be accredited to the large growth of urban areas in Texas, which has put a strain on groundwater resources. (62)

6. Persistence of the Rule of Capture

With all of its negative effects and the inundation of criticism with regard to the rule of capture, why do courts still adhere to it? Two justifications have been posed to help answer this question: reliance on the rule and legislative deference.

For courts adhering to the rule of capture, reliance is an ever-weakening argument as time progresses and water management problems increase. (63) One rationale that has been offered to explain why reliance is a diluted basis for following the rule of capture is that although a landowner can rely on this rule to release him from liability for pumping his neighbor's well, this same landowner, in turn, realizes that the rule does not protect his well from his neighbor. (64) In fact, rural parties, such as farmers and ranchers--once the most devoted of supporters for the rule of capture and antiregulation (65)--now stand as parties calling for regulation in order to create "firm water rights." (66)

This leads to the next justification for sticking with the rule of capture: legislative deference. Texas courts point to the Texas constitution, which states that "the preservation and conservation of all such natural resources of the State are each and all hereby declared public rights and duties[,] and the Legislature shall pass all such laws as may appropriate thereto." (67) An example of such application is Sipriano v. Great Spring Waters of America, in which the court stated that "[i]t would be improper for courts to intercede at this time by changing the common law framework within which the Legislature has attempted to craft regulations to meet this state's groundwater-conservation needs." (68) This decision was due to the then-recent passing of Senate Bill 1 and the legislature's creation of a water district system to address water concerns for individual areas. (69)

Although the Texas Supreme Court has yielded to the legislature, lower Texas courts have not given such deference to Senate Bill 1. (70) In South Plains Lamesa Railroad v. High Plains Underground Water Conservation Dist. No. 1, plaintiff landowner brought action against the water district for revoking a water well permit and denying another. (71) The court held that the water district lacked the authority to deny and revoke water well permits for "disproportionate taking" in relation to track size and, by doing so, exceeded their authority. (72) Discussing the Texas Supreme Court's prior decisions, (73) the court in South Plains determined it was in a position to define aspects of the water district's power rather than deferring to the legislature. (74) This discrepancy between the more activist lower courts and the Texas Supreme Court has led some to conclude that although courts defer to the legislature, they are also the ones who are impeding the legislature from changing water regulation. (75)

B. Middle East Background

The Middle East, as a whole rather than a single country, offers a beneficial comparison to the Texas water regulation system. (76) This is due to the water problem in the Middle East, as in Texas, being a growing problem among neighbors. (77) Water has always been scarce in the Middle East, (78) but the growing need from increased populations and agricultural sectors is elevating this scarcity toward the level of crisis. (79) A major part of this problem arises from the fact that most countries in the Middle East share the same aquifers. (80) This problem is exacerbated by the number of countries that do not take into account their impact on a neighboring country's water resources. (81) It has been argued that the conflict over water rights serves as a major barrier to reaching a peaceful relationship among the countries in the Middle East. (82)

1. Setting the Stage for Conflict

Use, share, control, and management of water creates high levels of tension among Middle Eastern neighbors. (83) The Middle East, along with North Africa, represents five percent of the global population, but only .09% of global water resources. (84) A problem arises for the Middle East due to the Tigris, Euphrates, and Jordan River systems serving as the only main waterways for the region. (85) By 1990, there were eleven water-scarce countries in the Middle East and North Africa. (86) By 2025, it is predicted that an additional seven countries in this region will be added to the list. (87)

A number of factors have contributed to the increasing scarcity of water in the region. First, population rates in the Middle East are growing rapidly, and water is being consumed at such a rate that it is impossible for the water to replenish itself naturally. (88) This growth has also caused increased pressure for economic development and irresponsible patterns of urbanization and industrialization. (89) Second, domestic pollution has contributed to the deterioration in the quality of available water. (90) This can partly be attributed to the lack of environmentally conscious technology that has accompanied the industrialization of the Middle East. (91) Finally, the expansion of agriculture and industry has also eroded available water resources in the region. (92) These three factors combined have caused the per capita water availability in the Middle East to become one of the worst in the world. (93) Because water resources are continually shrinking, a number of Middle Eastern countries have turned to using treated wastewater for industry, agriculture, and the recharging of aquifers. (94) This, of course, gives rise to health risks due to the bacteria, viruses, and organisms present in the water. (95)

One of the factors contributing to tension over water in the Middle East is the fact that upwards of fifty percent of the population has to rely on water coming from another sovereign state. (96) This transboundary aspect, along with the scarcity of water in the Middle East, has been the spark of a number of conflicts. (97) Such conflicts include ones among Turkey, Iraq, and Syria over the Tigris and Euphrates River; among Israel, the Palestine Authority, and Jordan over the Jordan River Basin; and within Saudi Arabia itself. (98)

2. Turkey--Syria--Iraq