Legal Water
An overview of Texas water laws and how ranchers are affected
By Robert Fears
This topic was part of the educational programming at the 2017 Cattle Raisers Convention, March 31 to April 2, San Antonio.
As a rule of thumb, water consumption by a beef cow will range from 1 gallon per 100 pounds of body weight during cold weather, to nearly 2 gallons per 100 pounds of body weight during hot weather. Lactating cows require nearly twice as much water as do dry cows.
All livestock require clean and constant supplies of water, but developing water sources at the ranch requires more than drilling a well or running a pipe into a river.
Laws govern water use and it is important to understand the regulations because violations usually result in fines and often in court settlements.
Those who attended the 2017 Cattle Raisers Convention in San Antonio might have had an opportunity to hear Tiffany Dowell Lashmet, Texas A&M AgriLife Extension Service, and Jim Bradbury, James D. Bradbury, PLLC, discuss water and ranching. Lashmet also wrote 2 excellent blogs on water regulations, from which this article is written. Go online to agrilife.org/texasaglaw and search for “basics of surface water law” and “basics of groundwater law.”
Surface water
In Texas, water law is basically divided into 2 categories – groundwater and surface water. The Texas Water Code defines surface water as all water under ordinary flow, underflow and tides of every flowing river, natural stream, lake, bay and arm of the Gulf of Mexico. The definition also includes stormwater, floodwater or rain water in every river, natural stream, canyon, ravine, depression and watershed in the state.
A subcategory of surface water is diffused surface water and this is treated differently under Texas law. Diffused surface water is water on the surface that has not yet entered a watercourse with a defined bed and banks. It can be either a current of water or a permanent source and supply. Diffused surface water is not owned by the state and is, instead, the property of the owner of the land over which it flows. Examples include water flowing over the ground from falling rains or melting snows. Once this water reaches a watercourse, it becomes state-owned surface water.
With only a few exemptions, a person must file a permit to use state water and obtain a water right from the Texas Commission on Environmental Quality (TCEQ).
A water right is defined as a right acquired under the laws of Texas to impound, divert or use state water. A water right does not transfer ownership from the state, but instead merely grants the holder a right to use it. A rancher is exempted from the permit requirement for a maximum of 200 acre-feet of water for domestic and livestock use. Requirements for a TCEQ surface water use permit are listed in Table 1.
Texas surface water law is governed by the doctrine of prior appropriation. Most western states, including Texas, define prior appropriation as “first in time, first in right.”
Essentially, the first person to receive a permit to put surface water to beneficial use has a “senior water right” that is superior to all junior water-right holders.
In the most basic sense, prior appropriation means “first come, first served.” In times of shortage, a senior right holder receives all the water to which he or she is entitled before a junior permittee can obtain any amount of water.
When a permit is granted, the date that the permit was deemed administratively complete by the TCEQ becomes the “priority date” for that water right. This determines the water-right holder’s position as to senior and junior appropriators.
A permit provides the specific parameters that must be followed by the water-right holder in using the surface water.
Specifically, a permit grants the holder the right to use a specific amount of water, at a specific location, for a specific purpose. There are several types of permits as shown in Table 2. It is important to note that a water right may be suspended or adjusted by TCEQ in a period of drought or other emergency water shortage. Permitting exceptions are shown in Table 3.
Groundwater
Groundwater is defined as water percolating below the surface of the earth, but not including subterranean streams or rivers. Like aboveground rivers, subterranean rivers in Texas would be state-owned. To date, however, no subterranean river has been identified in Texas and all underground water is treated as percolating.
Most underground water is held in aquifers. The 9 major aquifers, which hold 97 percent of the groundwater in Texas, are Ogallala, Gulf Coast, Edwards, Carrizo-Wilcox, Trinity, Edwards-Trinity, Seymour, Hueco-Mesilla, Bloson, and Cenozoic Pecos Alluvium. (See map.)
Landowners in Texas own the water beneath their property. Moreover, recent case law makes clear that a landowner owns not only the water that emerges from the ground but also the water in place underground.
When water is taken, or even in some cases where regulations limit the ability to pump groundwater, a landowner may be able to assert a taking of private property claim because he or she is deprived of his or her right to the water underlying the land. This is in sharp contrast to surface water, which is owned by the State of Texas in trust for the public and may only be used after a permit is obtained.
Groundwater in Texas is governed by the legal doctrine known as the Rule of Capture.
The Rule of Capture essentially allows the landowner to pump as much water as he wishes, even at the expense of his neighbor.
Under the Rule of Capture, a landowner needs no permit to drill a well and pump groundwater, and he may pump as much water as he may beneficially use even if it causes his neighbor’s well to go dry.
He may also sell the water withdrawn from the ground for use at any location. What is the remedy for a neighbor who worries about his well going dry? Drill a bigger/deeper well. Many refer to Texas groundwater law as the “law of the biggest pump.”
There are various limits on the Rule of Capture. Although a landowner owns the water beneath his or her property, this does not give the right to capture definite amounts of groundwater, nor does it allow the landowner to commit acts that result in waste.
Limitations fall into 2 categories — common law exceptions and legislative exceptions. If a landowner’s pumping falls within one of these exceptions, he is not protected by the Rule of Capture and may be required to cease pumping or be liable for damages.
Legislative exceptions are due to a Constitutional Amendment enacted in 1917 known as the Conservation Amendment. This amendment gives the Texas Legislature the duty of preserving and conserving all of Texas’ natural resources. Included is the power to regulate drilling and pumping of groundwater.
The Legislature decided that the preferred method of groundwater management in Texas is through local groundwater conservation districts (GCDs). These GCDs can enact rules and regulations, including permit requirements, metering and limitations on the amount of water that may be withdrawn in their area.
Much of the groundwater in Texas falls under the authority of a GCD. In areas without GCDs, groundwater use is unregulated.
Wells with permits are subject to GCD rules governing spacing, production, drilling, equipping and completion or alteration. Even exempt registered wells are subject to GCD rules governing spacing, tract size, and construction standards to prevent unnecessary discharge of groundwater or pollution of the aquifer.
Permits are usually required by a GCD for all wells except for those specifically exempted by a GCD and statutorily exempt wells, including wells used solely for domestic use or for providing water for livestock or poultry purposes.
The wells must be located on 10 acres or more and not capable of pumping more than 25,000 gallons per day. Other exemptions include drilling of a well to be used solely to supply water for a rig actively engaged in drilling or exploration operations for an oil or gas well permitted by the Railroad Commission of Texas (RRC) and the drilling of a water well authorized by the RRC for mining activities.
Texas water ownership is very complex and confusing. It is a good idea to visit with the involved state agency before making any management changes concerning surface and groundwater. Good contacts on surface water are the river authority and TCEQ. For proposed actions on water wells, contact the groundwater conservation district first and secondly, TCEQ. It is always wise to ask before making changes in water management to avoid penalties for violating regulations. ❚
“Legal Water” is excerpted from the May 2017 issue of The Cattleman magazine.