Water has been an integral part of human habitation in Texas for as long as man has been present there. In modern terms, the right to use water often depends on whether the source of the water originates from above or below ground.
In general terms, surface water found in defined watercourses is owned by the state of Texas and thus subject to Texas permitting. In contrast, diffused-surface water and groundwater are generally attached to land and subject to ownership by the landowner. Section 11.134 of the Texas Water Code provides that the Texas Commission on Environmental Quality (TCEQ) may grant an application for a new or additional appropriation of water only if: 1. the application meets all necessary requirements; 2. unappropriated water is available at the source of supply; 3. the water will be beneficially used; 4. the use will not impair an existing water right or vested riparian right; 5. the use will not be detrimental to the public welfare; and 6. the applicant provides evidence that reasonable diligence will be used to avoid waste and achieve water conservation. In its consideration of an application for a new or amended water right, the TCEQ shall also assess the effects, if any, of the issuance of the permit or amendment on: 1. freshwater inflows to bays and estuaries; 2. existing instream uses; 3. water quality; and 4. fish and wildlife habitats. Surface water rights, in whole or part, may also be revoked by TCEQ for non-use after ten years under the authority of Subchapter E, Chapter 11 of the Water Code.
The common law rule with regard to groundwater in Texas, called the “rule of capture” allows landowners to withdraw water under their property with little regard to neighboring groundwater users, so long as the water is beneficially used, is not intentionally wasted and does not negligently result in subsidence of adjacent property. This “rule of capture” was adopted by the Texas Supreme Court in Houston Texas & Central Railway Co. v. East. In subsequent rulings, the Texas Supreme Court has stated legislature has authority to regulate groundwater. Thus, in 1949 the Texas Legislature passed the Texas Groundwater Act, authorizing the formation of groundwater districts with limited power to regulate withdrawals and since then they have significantly expanded the powers of groundwater districts. By 2001, Texas had 87 groundwater districts covering about half of Texas and regulating a great percentage of Texas’ aquifers. The powers exercised by these districts vary, but in general, consist of regulations to prevent the depletion of water tables, the loss of artesian pressure, and subsidence which is accomplished by acts such as restricting pumping, requiring water well permits and establishing maximum rates for usage.
The Future of Water
In order for Texas to succeed in the future, landowners must be educated and prepared to understand local and statewide water needs as well as the key issues surrounding them, and then make smart choices about how we own, and manage this irreplaceable resource for generations to come. We hope you will share your ideas and support for our efforts to educate, motivate, and collaborate with fellow Texans on key water issues.
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