Water Rights and FAQs for Texas Landowners 

Do you have questions about who owns the water on your property? Or on a property you’re interested in buying? In Texas there are water rights. Who owns the water depend on what type it is. This article covers the different types of water rights and answers some common legal questions. If you still have questions after reading this, please consult with an attorney as real estate brokers cannot give you legal advice.  

Who owns the water in Texas?  

Ownership of water rights depends on whether the water is groundwater or surface water.   

Groundwater is defined as “water percolating below the surface of the earth.” Generally, groundwater belongs to the landowner.  

Surface water is defined as “the water of the ordinary flow, underflow, and tides of every flowing river, natural stream, and lake, and of every bay or arm of the Gulf of Mexico, and the storm water, floodwater, and rainwater of every river, natural stream, canyon, ravine, depression, and watershed in the state is the property of the state.”   

Surface water belongs to the State of Texas. If you are a landowner and want to use surface water, you must apply for a permit (also known as a water right) from the Texas Commission on Environmental Quality (TCEQ).  

There’s also another type of surface water – diffused surface water.   

Diffused surface water is rainwater or surface runoff. Before it enters a watercourse (stream, river, canal, etc.) landowners may capture and use it as it is flows across their property.  

But, once the rainwater flows into a watercourse, it’s owned by the state and subject to the State’s water permit requirements.   

Can landowners use the groundwater beneath their property?  

Under the Rule of Capture, you have the right to capture the water beneath your property. A landowner can extract or pump whatever water he can beneficially use or sell regardless of the impact on nearby property owners. This is often referred to as the “law of the biggest pump” as a neighboring property owner’s only remedy is to drill a bigger or deeper well.  

Are there any limits on the “law of the biggest pump”?  

Yes, there are limits to the “law of the biggest pump”. For example, you cannot maliciously take water for the sole purpose of injuring a neighbor. Nor can you willfully waste groundwater. Additionally, a landowner cannot negligently drill or pump water in a manner that causes subsidence (sinking) on a neighbor’s property.  

You also can’t trespass on your neighbor’s land; this would include drilling a “slant” hole that crosses over a subterranean property line into the neighbor’s land.  The state legislature has created Groundwater Conservation Districts to help regulate the drilling and pumping of groundwater.  

Can landowners use surface water?  

Yes, landowners can use surface water for domestic, municipal, agricultural, industrial, and other beneficial uses. You must first obtain a permit from the TCEQ before diverting water for any of the acceptable usages.  

What is the TCEQ’s water permit review process?  

The TCEQ reviews your application to use surface water and opens it up for public comment. If no one contests the permit, the TCEQ decides whether or not the grant the permit. However, if the permit is contested, there will be a hearing before state administrative law judges (ALJ).  The ALJ will make a recommendation to the TCEQ on whether to grant the permit or not.  

The TCEQ considers the following factors in its permit evaluation: 

• The application is complete, and the requisite fee is paid.  
• Unappropriated water is available;  
• The permit will not impair existing water rights, is not detrimental to public welfare, is consistent with the state and regional water plan, and is intended for beneficial use; and 
• The applicant will use reasonable diligence to avoid waste and achieve conservation efforts. 

The date the TCEQ grants you the water right permit determines your “priority date”.  

Why does a “priority date” matter?  

Texas water law is based on the doctrine of prior appropriation. Essentially, this doctrine stands for the proposition “first in time, first in right”. Landowners who received their water right first will have seniority over the landowners who obtained their permits later in time. If there is a shortage, the senior water right holder will get priority over the junior water right holders.  

How much surface water can a permit holder use?  

The permit will specify the amount of surface water that can be appropriated. However, even with a permit, you cannot take more water than you can put to beneficial use.  

Is a permit limited in duration?  

Yes. A regular permit allows for appropriation as long as the use continues. Seasonal, temporary, and emergency permits may limit the duration to a matter of days or years.  

Can a permit be sold or transferred?  

Yes. A water right is considered a property interest and it may be sold or transferred to someone else. However, the TCEQ must be notified, and the permit amended if the transferee plans to change the location, amount, or purpose of the water right. 

What happens to my water right if I sell my land?  

If you sell your land without explicitly reserving your water right, it will pass with the land to the new owner. You can also sell it separately from the rest of the land.  Water rights are transferred by deed and should be recorded.  

If I need water for my livestock, do I need to obtain a permit?  

There is a permit exception in the Texas Water Code that allows you to construct a dam or reservoir of up to 200 acre-feet for domestic and livestock purposes. This exception, however, does not apply to commercial operations. There are also exceptions for fish and wildlife purposes. If you want to use the exempt water for other purposes, you must obtain a permit from the TCEQ. For more information, please consult with an attorney.  

Can I lose my water rights?  

Yes, your water right may be considered “abandoned” if you do not use them for ten years or more. The TCEQ requires permit holders to submit an annual water-use report, even if they did not use any water. Additionally, if you are delinquent in paying any administrative fees to TCEQ for more than one year, your water balance will be reduced to zero, and diversions will not be authorized until all overdue assessments are paid. Accounts that remain inactive for 10 consecutive years can be considered for cancellation by the TCEQ. 

Still have questions? 

If you have additional questions about water rights, and particularly questions regarding a specific property, please seek legal counsel. Tony Malley at Texas Land Brokers is both an attorney and a real estate broker.