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June 13, 2022

Water Law Basics

Photo of a stock tank on a ranch

At the Texas A&M Agrilife Extension seminar “Owning Your Piece of Texas: Key Laws Texas Landowners Need to Know,” attorney Jim D Bradbury shared the basics of Texas water rights for Landowners.

Mr. Bradbury discussed the two categories of Texas Water: Surface water in a defined watercourse (streams, rivers, lakes, the Gulf of Mexico) along with diffused surface waters including stormwater runoff prior to reaching a watercourse. Groundwater includes percolating (namely water percolating beneath the land surface, but not in a subterranean stream or river) and aquifers, and then Subterranean rivers (which do not appear in Texas).

Mmmmm…. That looks clear and cool!

Surface Water

Generally, any surface water is owned by the State of Texas and governed by the Texas Commission on Environmental Quality. Typically, rights to water are governed by an established water right priority with some exceptions (namely oil and gas exploration and livestock).

Groundwater

Groundwater, on the other hand, may be governed by GCDs (Groundwater Conservation Districts) but the rights to it are owned by private landowners. GCDs are locally governed districts for the management of groundwater supplies, with limited management planning oversight by the Groundwater Planning and Assessment Team of the State of Texas.

Who Owns Your Water?

Did you know that a property owner may sell the rights to her groundwater? They can. And if you buy a property, it’s best to research whether those groundwater rights will convey with the land.

Between the continuing drought and exploding water demands from urban areas, water availability is a contentious issue in Texas. Bradbury displayed maps of water needs by county in Texas, with the highest demands around urban areas with limited groundwater capability. Projections show municipal needs exploding in 2030, and more than trebling by 2070.

If one purchases land with the planned use requiring surface water, then that landowner must apply for a water right with the TCEQ. The granting of that right is not guaranteed. Moreover, rights take priority based upon the date of granting of that right, and are subject to non-impairment of existing water rights. This can be problematic over time.

Navigable Waterways

Were you aware that navigable waterways are public? That means a stream or river deemed navigable by the state is fair game for use by the general public. Even if both sides of the waterway are privately owned, citizens cannot be accosted while using those waters for a lawful purpose.

The Guadalupe River below cliffs of the Texas Hill Country during Spring

Rainwater

Rainwater is another animal entirely. Bradbury explained that rain falling on a landowner’s land may be owned by the landowner. Think rainwater harvesting systems. Similarly, rain flowing in unpatterned ways across the land from higher to lower ground is considered the property owners. As long as it hasn’t entered a watercourse‚Ķ The same goes for diffused surface water.

Control in artificial ditches, tanks, ponds or rainwater harvesting systems may be used for any beneficial purpose.

Stock tanks have a limit of 200 acre-foot capacity when measured over a 12-month period. Limited purposes include domestic, livestock, wildlife management, and fishing (but not fish farming). If the tank is filled with diffused surface water, there is no limitation. If filled with groundwater, it must comply with GCD requirements.

Groundwater is governed by the rule of capture. That is, the landowner has the right to pump as much water as she wants, even if it drains his neighbor’s well (subject to GCD regulations and other exceptions).

Regulations concerning ownership and use of water in the state of Texas are fairly well defined and often mirror the laws regarding other minerals. Moreover, these laws and the case law supporting them are likely to become increasingly complex as the demand for water grows in Texas.

James D Bradbury Esq. can be found at www.bradburycounsel.com.

Check out my other blog post on choosing a homestead property here.

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