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:

• Obtaining a new appropriation from the TCEQ
• Buying and transferring an existing water right within a river basin
• Buying and transferring an existing water right from another basin
• Leasing water

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.