joined by Justice O’NEILL, concurring.
The people of Texas have given the Legislature, in article XVI, section 59 of the Texas Constitution, not only the power but the duty to “pass all such laws as may be appropriate” for the conservation, development, and preservation of the State’s natural resources, including its groundwater.1 The Legislature has concluded that local “[gjroundwater conservation districts ... are the state’s preferred method of groundwater management.”2 Actually, such districts are not just the preferred method of groundwater management, they are the only method presently available. Yet in the fifty years since the Legislature first authorized the creation of groundwater conservation districts,3 the record in this case shows that only some forty-two such districts have been created, covering a small fraction of the State. Not much groundwater management is going on.
The reason is not lack of groundwater. Twenty-nine aquifers underlie eighty-one percent of the State.4 Nor is the reason lack of use. In 1992, groundwater sources supplied fifty-six percent of all water used in the State, including sixty-nine percent of agricultural needs and forty-one percent of municipal needs.5 Nor is the reason lack of need of management. Over twenty-five years ago the Texas Senate’s Interim Committee on Environmental Affairs warned of severe, impending problems with municipal groundwater use and called for comprehensive regulation.6 The predicted problems have in fact occurred. The comprehensive revision of the Water Code in 19977 was motivated by what the Lieutenant Governor’s general counsel has called “the seriousness of the situation”: recurring droughts, expansive population growth, and dwindling water supplies.8
What really hampers groundwater management is the established alternative, the common law rule of’capture,9 which entitles a landowner to withdraw an unlimited amount of groundwater for any purpose other than willful waste or malice, and as long as he is not negligent in causing subsidence of nearby property.10 When this Court adopted the rule of capture as a common-law rule ninety-five years ago in Houston & Texas Central Railway. Co. v. East,11 we believed it to have been adopted in England and by the court of last resort in every state in this country except New Hampshire.12 Thirty-five years later only *82eleven of the eighteen western states still followed the rule of capture; after two more decades, only three western states still followed the rule.13 Now there is but one lone holdout: Texas.14
The Court in East gave two reasons for adopting the rule of capture:
“(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, therefore, be practically impossible. (2) Because any such recognition of correlative rights would interfere, to the material detriment of the commonwealth, 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.”15
Neither remains valid. The extensive regulation of oil and gas production proves that effective regulation of migrant substances far below the surface is not only possible but necessary and effective. In the past several decades it has become clear, if it was not before, that it is not regulation that threatens progress, but the lack of it.
Neither respondent nor any of the more than a dozen amici curiae who have appeared in support of respondent’s position attempt a principled argument for retaining the rule of capture. They focus instead on pragmatics. First, they say, the rule should not be abandoned because it has been the rule for a long time. The oft-cited wisdom of Justice Holmes is sufficient to rebut this argument:
It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry TV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.16
Second, respondent and its supporters argue that abandoning the rule of capture would be disruptive. To some extent they are right, of course, but the cost of such disruption must be balanced against the danger that the State’s water supply will be threatened because of a lack of reasoned water planning. Studies on the subject seem rather uniformly to indicate that the balance tilts against the rule of capture.17 Finally, respondent argues that water regulation is the Legislature’s responsibility under the Constitution, and that the Court should not venture into the area. I agree that this argument has merit,18 at least since 1917 when article XVI, *83section 59 was adopted, but it comes ninety-five years too late: the Court entered the area of water regulation in East when it adopted the rule of capture. Does the Court intrude on the Legislature’s constitutional responsibility and duty by maintaining the rule of capture or by abandoning it? It is hard to see how maintaining the rule of capture can be justified as deference to the Legislature’s constitutional province when the rule is contrary to the local regulation that is the Legislature’s “preferred method of groundwater management.”
Dissenting in City of Corpus Christi v. City of Pleasanton,19 Justice Will Wilson cautioned in 1955 that this Court would not forever use deference to the Legislature to justify maintaining the rule of capture in the face of changing circumstances.20 After all, even if the Court abandoned the rale of capture as part of the common law, the Legislature could adopt the rule by statute — although given its stated regulatory preference, presumably it would not do so. Petitioners make a strong case for replacing the rule of capture with the beneficial purpose doctrine set out in section 858 of the Restatement (Second) of Torts:
Liability for Use of Ground Water
(1) A proprietor of land or his grantee who withdraws ground water from the land and uses it for a beneficial purpose is not subject to liability for interference with the use of water by another, unless
(a) the withdrawal of ground water unreasonably causes harm to a proprietor of neighboring land through lowering the water table or reducing artesian pressure,
(b) the withdrawal of ground water exceeds the proprietor’s reasonable share of the annual supply or total store of ground water, or
(c) the withdrawal of the ground water has a direct and substantial effect upon a watercourse or lake and unreasonably causes harm to a person entitled to the use of its water.
(2) The determination of liability under clauses (a), (b) and (c) of Subsection (1) is governed by the principles stated in §§ 850 to 857.21
While neither section 858 nor any other common law rule of water regulation is preferable to almost any effective legislative solution, absent such a solution, section 858 is preferable to the rale of capture.
Nevertheless, I am persuaded for the túne being that the extensive statutory changes in 1997, together with the increasing demands on the State’s water supply, may result before long in a fair, effective, and comprehensive regulation of water use that will make the rale of capture obsolete. I agree with the Court that it would be inappropriate to disrupt the processes created and encouraged by the 1997 legislation before they have had a chance to work. I concur in the view that, for now— but I think only for now — East should not be overruled.
. Tex. Const, art. XVI, § 59(a) ("[T]he 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 be appropriate thereto.”).
. Tex. Water Code § 36.0015.
. Act of May 23, 1949, 51st Leg., R.S., ch. 306, 1949 Tex. Gen. Laws 559.
. See John B. Ashworth & Janie Hopkins, Aquifers of Texas, Texas Water Dev. Bd. Report 345, at 1 (Nov.1995).
. See id.
. Tex Sen. Interim Comm, on Environmental Affairs, Recommendations of the Committee, 62nd Leg., 15, 18 (1973) ("Water Resources”).
. Act of June 1, 1997, 75th Leg., R.S., ch. 1010, 1997 Tex. Gen. Laws 3610.
. See Martin Hubert, Senate Bill 1, the First Big and Bold Step Toward Meeting Texas's Future Water Needs, 30 Tex Tech L.Rev. 53, 55-56 (1999).
. See Senator J.E. “Buster” Brown, Senate Bill 1: We’ve Never Changed Texas Water Law This Way Before, 28 St. B. Tex Envtl. L.J. 152, 157 (1998).
. Friendswood Dev. Co. v. Smith-Southwest Indus., Inc., 576 S.W.2d 21, 25-30 (Tex.1978).
. 98 Tex. 146, 81 S.W. 279 (1904).
. Id. at 280 (citing Acton v. Blundell, 152 Eng. Rep. 1223 (Ex. Ch. 1843), and Bassett v. Salisbury Mfg. Co., 43 N.H. 569 (1862)).
. Robert Emmet Clark, Ground Water Legislation in the Light of Experience in the Western States, 22 Mont. L.Rev. 42, 50 (1960).
. Roger Tyler, Underground Water Regulation in Texas, 39 Tex BJ. 532, 535 (1976); Richard S. Harnsberger, Nebraska Ground Water Problems, 42 Neb. L.R. 721, 727 (1963) ("Almost all of the contiguous seventeen Western states originally accepted the English rule by dictum or decision, but today only Texas appears to follow it.”).
. East, 81 S.W. at 281 (quoting Frazier v. Brown, 12 Ohio St. 294, 311 (1861)).
. Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L.Rev. 457, 469 (1897).
. See, e.g., Robert A. McCleskey, Comment, Maybe Oil and Water Should Mix — At Least in Texas Law: An Analysis of Current Problems with Texas Ground Water Law and How Established Oil and Gas Law Could Provide Appropriate Solutions, 1 Tex Wesleyan L.Rev. 207 (1994); Lana Shannon Shadwick, Note, Obsolescence, Environmental Endangerment and Possible Federal Intervention Compel Reformation of Texas Groundwater Law, 32 So. Tex. L.Rev. 641 (1991); Karen H. Norris, Comment, The Stagnation of Texas Ground Water Law: A Political v. Environmental Stalemate, 22 St. Mary’s L.J. 493 (1990); Corwin W. Johnson, The Continuing Voids in Texas Groundwater Law: Are Concepts and Terminology to Blame?, 17 St. Mary’s L.J. 1281 (1986).
.See Joe R. Greenhill & Thomas Gibbs Gee, Ownership of Ground Water in Texas; The East Case Reconsidered, 33 Tex. L.Rev. 620, 629-630 (1955).
. 154 Tex. 289, 276 S.W.2d 798 (1955).
. Id. at 805 (Wilson, J., dissenting).
. Restatement (Second) of Torts § 858 (1979).