How are water rights determined in Texas?
It depends on the nature of the water. Rights to access groundwater and surface water differ tremendously in the state of Texas.
Texas groundwater generally belongs to the landowner, and is thereby governed by the Rule of Capture. This rule allows a landowner to pump as much water from underneath their land as they wish, regardless of how their pumping affects the water table or neighboring wells. The only real limitation for pumping and capturing groundwater is that the water must be pumped from a groundwater source that is beneath a landowner's property; eliminating the inclination to drill a “slant” well that crosses a subterranean property line.
Texas surface water rights, on the other hand, are much more complex due to the fact that surface waters of Texas are owned by the State and are allocated as such. A further complication in surface water rights allocation is the use of two separate (and widely different) doctrines for rights determination. The first doctrine used by the State is called the riparian doctrine. Based on English common law, riparian doctrine ties surface water rights to the adjacency of land ownership. According to this doctrine, a person who owns land that borders a river or stream has the right to use the surface water, provided that “their use is reasonable in relation to the needs of all other riparian owners.” The riparian doctrine works extremely well in areas that receive large, consistent amounts of rainfall, however major issues arise when droughts cause surface water shortages.
The second method considered by the State of Texas in determining surface water rights is the prior appropriation doctrine. This doctrine, unlike the riparian doctrine, is statutory in nature, meaning land ownership is irrelevant when determining what right a person has to use surface water. Under this doctrine, a “first in time, first in right” approach is honored, whereby water rights may be bought and sold, however the oldest rights take priority over newer rights.
The prior appropriation approach was developed during the westward expansion of the United States due to the arid nature of the territories being settled. It allowed farmers and ranchers to be able to have access to surface water without having to own land adjacent to it. It also provided a way for right determinations to be made in times of severe drought, when less water was available than had been appropriated.
Since Texas is a very large state, encompassing many different ecosystems and climate regions, both the riparian doctrine and the prior appropriation doctrine are applicable. In an effort to provide uniformity and reduce conflict, the Texas Legislature passed the Water Rights Adjudication Act in 1967, merging the riparian doctrine into the prior appropriation doctrine, and creating a statewide permitting system. This act charged the Texas Commission on Environmental Quality (TCEQ) with the task of awarding surface water permits in the form of “water rights”.