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Acquiring Groundwater and Surface Water Groundwater Leasing, Marketing and Sales
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Acquiring Surface Water Surface water belongs to the state of Texas. Before using state water, you must obtain a permit from the Texas Commission on Environmental Quality (TCEQ). The permit does not give you title to the water, just permission to use and enjoy it. The permit also gives you certain protections against termination, loss or infringement of the water rights. You can acquire surface rights by:
Water Subject to Appropriation. Section 11.021 of the Texas Water Code declares: The water of the ordinary flow, underflow, and tides of every flowing river, natural stream and lake, and of every bay or arm of the Gulf of Mexico, and the storm water, floodwater and rainwater of every river, natural stream, canyon, ravine, depression and watershed in the state is the property of the state. Both rainfall and diffused surface water that flow across land prior to joining its natural watercourse belong to the landowner and not the state. Water Rights Permit. The Adjudication Act applies to permit claims through 1969, which are titled "Certificates of Adjudication." For permits after 1969, a more standard procedure is followed. Anyone seeking to appropriate water must apply in writing, following the rules and procedures of the Texas Commission on Environmental Quality.
After approving an application, the commission issues a permit giving the applicant the right to use water only to the extent stated in the permit. Permit Criteria. Permits issued by the Texas Commission on Environmental Quality must comply with all elements of the prior appropriation doctrine that have been incorporated in the Texas Water Code. The commission must consider many factors in reviewing a water permit. Generally, a permit may be granted only if the applicant makes beneficial use of water; if water is available and its use does not impair vested water rights, if the applicant practices water conservation, and if the use of water is not detrimental to public welfare. Water Rights Holders. The Texas Water code recognizes that an "appropriator" means any person who has made beneficial use of water in a lawful manner. Consequently, Texas has a list of more than 12,000 appropriators of surface water. Acquiring Groundwater Texas groundwater belongs to the owner of the land above it and may used or sold as private property. Texas courts have adopted, and the legislature has not modified, the common law rule that a landowner has a right to take for use or sale all the water that he can capture from below his land. Rule of Capture. Because of the seemingly absolute nature of this right, Texas law has often been called the "law of the biggest pump." Texas courts have consistently ruled that a landowner has a right to pump all the water he can from beneath his land regardless of the effect on wells of adjacent landowners. The rule of capture was adopted by the Texas Supreme Court in 1904 in Houston & T.C. Ry. Co. v. East, 81 A.W. 279 (Texas 1904). The rule allows landowners to pump as much water as they choose, without liability to surrounding landowners who might claim that the pumping depleted their wells. The rule of capture has been followed by the courts ever since that 1904 decision. Groundwater Conservation Districts. The groundwater conservation districts authorized by Sections 52.001 to 52.501 of the Texas Water Code have as their purpose the prevention of waste, the prevention of land subsidence, protection of water quality, and conservation of groundwater supplies. This is accomplished by regulating well spacing, enjoining wasteful water practices such as allowing water to flow into roadside ditches, and conducting publication education programs about water conservation methods. Districts can also require permits for new wells. |
Publications A
Bibliographic Pathfinder on Water Marketing Dividing
the Waters: Water Marketing as a Conflict Resolution Strategy in the
Edwards Aquifer Region Handbook
of Texas Water Law Questions
about Groundwater Conservation Districts in Texas Solving
the Texas Water Puzzle: Texas
Water Marketing in the Next Millennium: A Conceptual and Legal Analysis Untying
the Gordian Knot: Negotiated Strategies for protecting Instream Flows
in Texas Water
Marketing in Texas Who
Owns the Water? Links Texas Commission on Environmental Quality Do I need to obtain a permit to build a stock tank or reservoir on my property? An exemption to the permit requirements is given to persons constructing small dams or reservoirs on their own property. Section 11.142 of the Texas Water Code allows the landowner to build a stock tank, or reservoir, holding up to 200 acre-feet of water for domestic, livestock, wildlife or fishing purposes without obtaining a permit. This 200-acre-foot limit applies only to state water in a natural watercourse. It does not apply to the capture of diffused surface or drainage water. Drainage water does not become state water until it reaches a natural water course. Therefore, a landowner may capture and impound more than 200 acre-feet of drainage water because limitation of the stock tank exceptions do not apply. Aside from the stock tank exception, in general you may not build a dam on a stream without first getting a permit from the TCEQ. Can water rights be canceled? Just as Texas law governs water rights, the law also specifies penalties for neglecting those rights. The most severe penalty is cancellation of a water right. Other water rights transgressions may be punished as misdemeanor violations or through civil penalties. What are seasonal, temporary and emergency permits? Permits granted by the commission may be regular, season, temporary, or emergency in nature. A regular permit is issued in "perpetuity" so long as the water is used for a beneficial purpose. Seasonal permits are similar to regular permits except that the use of water is limited to certain months or days during the year. A temporary permit is granted for a period of time up to three years and does not give the holder a permanent water right. An emergency permit allows the holder to divert and use water for up to 30 days if emergency conditions exist that threaten public health, safety, and welfare. The permit automatically expires after 30 days. |
Texas A&M University · Texas AgriLife Research · Texas AgriLife Extension Service |
