Increased human populations, together with increased per capita water usage and climate changes, have resulted in our planet coping with greater water shortages than ever before. Groundwater has played, and will continue to play, a critical role in dealing with water shortages. Consequently, more and more attention, legal and otherwise, is being given to groundwater across the United States.
Much legal confusion about groundwater exists. For starters, there is no single legal definition for groundwater. Moreover, the law has developed legal categories such as percolating water and underground streams which, while contradictory to scientific hydrology, remain embedded in the law. The original legal approach to percolating groundwater was called "absolute dominion," also known as the "rule of capture." While the absolute dominion rule is no longer applied in most jurisdictions, it lives on in Indiana, Maine, and most strongly, Texas.
This article summarizes the rise and demise of the absolute dominion doctrine, providing the ongoing struggle over absolute dominion with regard to the shortage of groundwater in Texas as a guide. Specifically considered is Edwards Aquifer Authority v. Day, wherein the Texas Supreme Court held that regulatory limitations of a landowner's ability to pump groundwater might be a compensable taking of property under the Due Process clause. The law in Texas continues to develop as the state's Supreme Court seeks to find the balance between legislation designed to address the groundwater shortage crisis against citizens' rights in groundwater in place which are derived from the rule of absolute dominion.
Joseph W. Dellapenna,
The Rise and Demise of the Absolute Dominion Doctrine for Groundwater,
35 U. Ark. Little Rock L. Rev. 291
Available at: http://lawrepository.ualr.edu/lawreview/vol35/iss2/3