Water Law: The Right to Use Surface Water in the State of Texas

The Texas Water Development Board surveys public water systems and industrial facilities every year to investigate how much they use, where it comes from and what it is used for. In 2014, 62% used groundwater and 38% used surface water. Nearly half of the surface water was used by local government entities; the other half was used for irrigation, manufacturing, power, livestock and mining, in that order.

Although a person has the right to drill a well on their land and pump as much water as necessary, as per Texas water law, surface water is more thoroughly regulated in its use since it is owned by the state.

Do you have a question about your rights to use water? Let our attorneys in McAllen help you.

What is Considered State Water?

Unlike groundwater, which is found beneath the surface wedged between soil and rocks, surface water (state water) is any water above ground that is naturally running through or into a body of water or watershed.

Texas Water Code Section 11.021 defines state water 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.” It also includes water that makes it into the state via an outside source like beds or banks of streams or by facilities owned or operated by the state.

“The Rio Grande River is surface water and provides almost all the water used in the Rio Grande Valley,” attorney Brian J. Hansen said. “This includes water that is treated to supply potable water to our homes, and the water used to irrigate crops.”

State Water Usage Purposes

Texas has complete ownership of its surface water, but may allow the public to use it for specific purposes listed in the Texas Water Code. A permit can be issued outlining the appropriate use of a state water source.

State water, as listed in Texas Water Code Section 11.023, can be used for municipal and domestic purposes such as “sustaining human life and the life of domestic animals.” It can also be utilized for agricultural and industrial purposes, as well as mining and the recovery of minerals, hydroelectric power, navigation, recreation and pleasure, public parks, game preserves and any other use that is beneficial to the public.

In the event of a water shortage, the water supply will be divided proportionally amongst the permit holders if there isn’t a water conservation plan in effect for that particular source. If there is, however, the water is divided according to how much each person was granted in their permit to receive or how much they are entitled to receive minus what they would have saved if their water supply was operated under a water conservation plan.

Applying for a State Water Permit

A permit to use state water may be filed with the Texas Commission on Environmental Quality. This permit specifies how much water a person may use, for what reasons and for how long. The first person to file for a permit has seniority over the designated state water source they applied for. More than one person may apply to have access to a watercourse. Without a permit, a person may not “store, take or divert” state water.

Someone applying for a permit to use state water has to inform the commission on the source of water supply, the reasons for its use, how much will be used and when. If it will be used for irrigation purposes, a description of the land to be irrigated and its size must also be included in the application.

An application for a water state permit will be accepted according to Texas Water Code Section 11.134 as long as:

  1. The application meets the requirements as stated in the Texas Water Code and the fee for the application is paid.
  2. The source of water is not already being used by other entities for other purposes.
  3. The proposed use of the water supply is intended for beneficial purposes, does not go against existing water rights, does not affect the public’s welfare, considers environmental factors and respects state and regional water plans.
  4. The applicant agrees to avoid wasting water and will use the supply in a way that conserves it.

After an applicant submits their application, the commission will review it and decide whether to issue a permit or not. The permit, however, may be issued with restrictions and conditions.

Our Attorneys Are Ready to Help

The lawyers at Fryer & Hansen, PLLC can help landowners, corporations, municipalities and other entities with any questions they may have regarding their rights to use state water. Contact us for a free consultation to assess the legal steps you must take to have the proper access to water.

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