Navigating Water Law

By Nicole Lane Erceg

Who says what you can do with the water on your land — you, or the state of Texas?

It’s a question Jim Bradbury has answered hundreds of times.

“Do I own the water in my stock pond?”

Bradbury spends his days resolving legal disputes in Fort Worth, Texas. He’s a lawyer with a special affinity for Texas Water litigation who works closely with agricultural clients, and has made many landowners’ jaws drop when he shares the real answer.

“No.”

In Texas, all surface water, or any water that can be seen above the surface of the ground including ponds, tanks, streams, rivers and lakes, belongs to the state. All groundwater, or water beneath the surface of the land, is the property of the landowner.

“Most people think that if they bought the property, they own every drop of water they can see on the ranch,” Bradbury says. “That’s just not true.”

He explains that this doesn’t mean the state will come and take water away from landowners, just that they have jurisdiction over how it can be used, who can use it and when they can use it.

When the rivers are full, and the rain is regular, water law may not seem important because there’s plenty to go around. However, as population increases and the state battles drought, the demand for water is greater than ever before. It’s an escalated strain on the same amount of water.

From a strategic perspective, Bradbury says that it’s vital for landowners, especially cattlemen who rely on consistent water resources for cattle care, to understand the basics of Texas water law to help protect their businesses.

“There is no reason for busy farmers and ranchers to know all the ins and outs of water law, but the reality is, they need to know the high points,” Bradbury says. “Because now, the consequences are higher.”

Accessing water on owned property
Bradbury explains that there are multiple ways landowners can access the water available on their property within their legal rights. The first option is to pump groundwater. Since groundwater is private property, he says, “if you can pump it, you can use it.”

Although there is limited regulation of groundwater through Groundwater Conservation Districts, the landowner has control over how it’s used.

“If I’m a beef cattle rancher and I own 1,000 acres, I own the groundwater beneath my property, just like oil and gas,” Bradbury says.

The law protects a landowner’s ability to capture whatever water is available, regardless of the effects of pumping that water on neighboring wells.

The right to water
“If you have a stream going through your property, the fact that it’s going through your property doesn’t give you any ownership,” Bradbury says.

He also explains that this means others can pass through water channels on a landowner’s property for recreational purposes, without it being considered trespassing.

“The public is not allowed on your property,” Bradbury says. “But they can kayak through it, and fences can’t be put up to keep the public out of the waterway.”

To access surface water, a right from the state is required. The legal system governing surface water is based on prior appropriation, meaning first in time, first in right. Those with the oldest, or most senior water rights, have the first opportunity to the water that is available.

Numerous landowners own rights up and down waterways, but the more senior the right, the greater chance that one will have the ability to access the water in times when demand is high. Those with the junior rights can be denied access based on the needs of the senior rights holders.

The Texas Commission on Environmental Quality (TCEQ) maintains a registry of all water rights. These rights can be bought or sold along with the property. Bradbury suggests that landowners who struggle with water access or foresee water issues in their area consider purchasing water rights from those who are not using them.

“We have a lot of rights outstanding,” Bradbury says. “Some rivers are overallocated, but there are also a lot of rights holders not exercising those rights.”

Stock tank exemption
There is an option available for landowners to access state-owned water without a permit. The state allows a limited legal impoundment, such as a stock pond or tank, that annually backs up 200 acre-feet of water over the course of the year.

For ranchers who plan to use impounded water for cattle or domestic use, the state allows the construction of a dam over a non-navigable stream. For those who have more than one surface water source, the option might be available to construct more than one 200-acre-foot stock pond to strategically use additional water.

For landowners using ponds or streams as water sources for livestock, there’s no legal issue, Bradbury says. However, if water is being drawn out of those ponds or streams for irrigation purposes, landowners must have a permit.

“Unless you go out and get a permit, you’re subject to the 200-acre-foot rule,” Bradbury says. “If you’re pulling water, you need a right to do so, but for most pasture beef operators, a water impoundment will fulfill their needs.”

He advises cattlemen to avoid pumping from impoundments, especially for irrigation purposes, as this will often violate the exemption. He also recommends researching specific needs and possible water law violations before building any type of impoundment.

“In the last ten years, as Texas has grown, the focus on water and our water laws has increased significantly,” Bradbury says. “We have more conflicts that are developing, and these laws are being enforced.”

Knowing the rules
He shares that it is important for cattlemen to stay up-to-date on how water law affects their operation and how their use might impact neighbors.

“Everyone is upstream of somebody, and everyone is downstream of someone,” Bradbury says. “The actions you engage in will affect those downstream from you, and if you’re wrong, you could find yourself in trouble.”

For more information on water law, Bradbury recommends contacting the TCEQ office or a local Texas A&M AgriLife Extension agent.

“It’s better for producers to know these rules and work ahead before they find themselves in a difficult situation,” Bradbury says.

“Navigating Water Law” is excerpted from the May 2018 issue of The Cattleman magazine.