Right (and Wrong) of Capture

T. Boone Pickens, the billionaire corporate raider and oil tycoon, has set his sights on a new underground resource that could prove every bit as lucrative: Water. With bone-dry Texas facing looming water shortages, Pickens and investors have been busy buying up rights to the 'fossil' H2O held in portions of the vast Ogallala Aquifer underneath the Texas panhandle. Pickens likes to refer to the water as "surplus" -- "more water than [local landowners] can ever use." He neglects to note that the Ogallala Aquifer, which is vital to irrigating the American breadbasket, recharges at a snail's pace and that water levels in parts of the aquifer have dropped by 300 feet in 60 years.

So far, Mesa Water hasn't started pumping and doesn't have any contracts, but with supply diminishing and population increasing, most observers say it's only a matter of time before one of America's wealthiest individuals is profiting from the West's drought.

But wait a minute, you say: How is it Pickens can buy and sell groundwater in the first place? Good question. As Jacques Leslie explained in a Salon story years back:

In most states, Pickens wouldn't enjoy the right to buy and sell groundwater, but Texas is the heart of the heartland, where regulation is considered inconsistent with the God-given right to make a ton of money. Thus, it's the only state in the arid West that legally acknowledges the "right of capture," by which landowners have title to the water beneath them.

Leslie noted, however, that even in the hyper-conservative, regulation-averse West Texas, Pickens's scheme was about as popular as a rattlesnake in a sleeping bag. Now local interests are looking for ways to head him off. According to the Omaha Herald:

Many local water districts are adding regulations for pumping groundwater, but that could present legal problems down the road.

Legal experts say the districts can't modify rules to the extent they affect the state's rule of capture law, adopted more than 100 years ago. The law allows property owners to withdraw virtually unlimited amounts of water from beneath their land.

Local restrictions could spawn lawsuits under the takings clauses of the U.S. Constitution and Texas Constitution. Those clauses bar the government from taking private property unless it's for the public good.