Guide to Texas Water Rights: Sharing the Common Pool
By: Charles Porter
Today close to 90 percent of Texans live in an “urban” area. Water rights are generally overlooked by urbanites because their water is immediately available from the “taps” in their homes. The size of the monthly water bill and any emergency rules concerning irrigation of plants and grass are usually the only limitations people living in cities experience in regard to their right to use water. If city dwellers pay their water bill on time and follow the landscape watering rules, then their water right is generally secure and hardly ever comes to mind.
People living in the “country” have a different and sometimes more respectful attitude toward water. The domestic, livestock, and irrigation water used by people living in rural areas flows from their own underground wells or, less often, from nearby surface water. These people tend to be more aware of their water rights because access to the water, the quality of the water they draw and use, and the daily maintenance of the pumps and storage tanks are their sole responsibility.
Whether someone’s water source is from a seemingly unlimited municipal supply or from a private rural well, the right to the water does affect everyone living in drought-prone Texas. Why? Because all water comes from one hydrologic cycle as it circulates from the land to the sky and back again, and water at all times exists in nature conjunctively, or interconnected. Water is the ultimate zero-sum game: the volume of water used by one right holder sourced from our common pool of water ultimately diminishes, to some degree or other, the volume of water available to other water rights holders.
Almost all Texans, when asked, profess confusion about water rights. Water rights in Texas vary: between water flowing on the surface and water underground, from regulatory agency to regulatory agency, from place to place, and from time to time.
Texans buy, lease, and sell real estate thousands of times daily. In addition to the significant impact water rights have on the value of property, statutory obligations have created a need to understand water rights because all known defects in real property must be disclosed to any potential purchaser during the time the purchasers are making their decision to buy. This duty to disclose any known defect, including a defect in water rights, is shared by sellers, lessors, and their real estate agents.
Buyers and lessees must know about the water rights to a property they are considering, so they must know what questions to ask. As water becomes scarcer throughout the state due to population growth and inevitably recurring droughts, the need for sellers, buyers, and real estate agents to fully understand the water situation associated with any property for sale has become critical.
The Unique Characteristics of Water and Water Rights in Texas
Determining a water right in Texas depends on which of three geological containers holds the water. The first container is surface water, or water that flows on the surface of the ground in a watercourse. The State of Texas owns the water in a watercourse. The assessment of what makes up a watercourse can be complicated, so the safest way to look at ownership of surface water is to consider all water flowing in any stream or area with bed and banks to be surface water. Surface water is not yours to own but, except in unique situations, is owned by the State of Texas. Knowing this may save you many dollars in fines and hours of angst. If you have a question about surface water ownership on real property you own or are considering purchasing, ask the Texas Commission on Environmental Quality (TCEQ) for a determination.
The second geological container is known as diffused surface water, or rainwater that runs off your roof or over the surface of your land without flowing in a stream or channel. The water in this container is owned by the landowner. For more information on this, check out the article written by Ron Kaiser we posted HERE.
The third container is groundwater, or water held underground in aquifers and pools. Ownership of groundwater in Texas was debated for many decades, but in the fall of 2011 the debate ended for all practical purposes when the Texas legislature passed a bill (generally known as Senate Bill 332 by Fraser), which states, “The legislature recognizes that a landowner owns the groundwater below the surface of the landowner’s land as real property.” The bill was signed into law by Governor Rick Perry, effective September 1, 2011.
To learn more about ground water and water wells check out our Article ‘Everything you need to know about Water Wells’
Water is the ultimate example of an element of nature that exists in a conjunctive state. Surface water, diffused surface water, and groundwater are, have been, or will be ultimately in union with one another; water exists in a conjunctive relationship in all three geological containers all the time. Diffused surface water feeds both surface water and groundwater. Groundwater feeds surface water both in the underflow and via natural springs. As water flows downhill above or below ground, the containers feed and deplete each other visibly and invisibly. This conjunctive relationship is a key concept that must be grasped in order to understand water rights in Texas. This law of nature, when applied to water ownership in Texas, complicates the debate since even with modern technology we cannot yet “see” underground.
Every human being, creature, and plant on earth shares a common pool, draws from it all the time, and is utterly dependent upon it for existence. Water is the “common denominator” of all life on earth. Water exists in one constantly churning hydrologic system.
Human use of water affects the hydrologic cycle, usually quite drastically. Water is in constant motion flowing through this cycle. As water moves through the cycle in Texas, its ownership continuously changes.
Ownership of a Water Molecule in Texas
Imagine tracking one water molecule in various stages in the hydrologic cycle in Texas. As the water flows through the cycle, rights to this water molecule change between private and public ownership. The fugitive nature of the molecule is a root cause of some of the confusion over water rights in Texas.
For example, when the water molecule comes to a landowner’s property via a rain shower and does not enter into a watercourse, then this water molecule is owned by the private landowner and is considered diffused surface water. If that same water molecule percolates into the soil before it evaporates to join the gaseous stage of the hydrologic cycle, it becomes groundwater, which is also owned by the private landowner. However, if and when the same water molecule runs off the landowner’s property and into a watercourse or stream, thereby becoming part of the flow, the molecule enters the geological container known as surface water and is owned by the State of Texas. Even when landowners have an adjudicated right to surface water in Texas, they hold only a “usufruct” right, or a right to “use” surface water, not to own the surface water itself.7
Natural Springs
Natural springs are the most cherished and by far the most visible intersection of a water molecule’s change in ownership as it flows through the cycle. While the molecule is in the ground before it emerges from a spring, it is groundwater owned by the landowner. When the water molecule emerges from the spring into a pool without running into a watercourse or stream in Texas, the water molecule remains the landowner’s property. Once the water molecule emerges from the spring and flows into a watercourse or stream, the State then owns it. The significance of the one water molecule example is that water exists in a conjunctive relationship, resulting in an ever-changing chain of title in Texas.
Understanding of that chain of title is crucial for landowners, who need to understand water rights when buying, selling, and leasing real property in Texas and to be prepared to participate in the debate surrounding the issues we face in order to secure a sustainable and bright future in our arid, drought-prone state.
Charles Porter is assistant professor of history at St. Edward’s University in Austin and a licensed real estate agent and broker. He has been a presenter and panel moderator for the Texas legislature, at the Texas Groundwater Summit, and at a joint conference of the Texas Rural Water Association and Texas Water Conservation Association.