Texas Water Rights & Ownership
Posted on: September 17th, 2013

Water is a valued resource and topic of great discussion in the West Texas region. The law enveloping water ownership is writ with complexity, but there are some basic issues West Texas landowners, business operators and homeowners may find of interest.

Texas water ownership has three main categories—surface water, diffuse surface water, and groundwater.   Surface water is owned by the public via the State of Texas.  Persons wishing to use surface water may obtain permits from the Texas Commission on Environmental Quality per Chapter 11 of the Texas Water Code and Title 30 of the Texas Administrative Code.  Surface water rights may also be adjudicated in state court.

Diffuse surface water is surface drainage water that has not yet reached a channel or streamcourse, or sunk into the ground. The landowner has a superior right to intercept, impound, and utilize diffused surface water on his land, so long as any reservoir used does not exceed a specified acre-foot storage capacity.  This right to impound water may influence downstream water users.

Groundwater is privately owned under the rule of capture.  The Texas groundwater rule has commonly been referred to as “the law of the biggest pump”—landowners have the right to pump what water they can from underneath their properties. This is true so long as the water source is from percolating waters and not subterranean rivers. Subterranean rivers and stream underflow are generally excluded from the definition of underground water.  There are some limits on groundwater pumping; these can be established by water district management provisions or under five situations where a Texas landowner can take legal action to remedy interference with his groundwater rights.

Water law navigation is a challenging course to chart.  Visit with an experienced McCleskey attorney to define your water and land rights.

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