**This article is not a substitute for the advice of an attorney.**
In Texas, water law is basically divided into two categories: groundwater and surface water. Today, we will take a look at the basics of surface water law.
Surface Water Defined.
Surface water includes all of the “water under ordinary flow, underflow and tides of every flowing river, natural stream, lake, bay, arm of the Gulf of Mexico, and stormwater, floodwater or rain water of every river, natural stream, canyon, ravine, depression, and watershed in the state.” Texas Water Code Section 11.021.
A subcategory of surface water is treated differently under Texas law. Diffused surface water is water on the surface that has not yet entered a ”watercourse.” Prior to entering into a watercourse, which is defined as having defined bed and banks, a current of water, and a permanent source and supply, diffused surface water is not owned by the state and is instead owned by the owner of the land over which it flows. Examples of this water include water flowing over the ground from falling rains or melting snows. Once this water reaches a watercourse, it becomes state-owned surface water. This blog post will not address diffused surface water.
Texas Surface Water.
Texans use approximately 6.6 million acre feet of surface water per year. Most of the surface water is used to supply water for cities and industry. Only about 35% of surface water use is for irrigation. The majority of surface water in Texas has been appropriated and water rights issued.
Surface Water Ownership.
Texas surface water is owned by the state and is held by the state in trust for the public. See Texas Water Code Section 11.021, 11.0235. With only a handful of exceptions discussed below, in order to use this state-owned water, a person must file a permit and obtain a “water right” from the Texas Commission on Environmental Quality. See Texas Water Code Section 11.022. A water right is defined as “a right acquired under the laws of Texas to impound, divert or use state water.” See Texas Water Code Section 11.002(5). Importantly, a water right does not transfer ownership of the water from the state but instead merely grants the holder a non-possessory right of use (called a “usufructory right”). Water ownership remains with the State of Texas.
Prior Appropriation Doctrine.
Texas surface water law is governed by the doctrine of prior appropriation. Prior appropriation–followed by most western states–is defined as “first in time, first in right.” See Texas Water Code Section 11.027. Essentially the first person to receive a permit to put water to beneficial use has a “senior water right” that is superior to all junior water right holders. In the most basic sense, prior appropriation means “first come, first served.” In times of shortage, a senior water right holder will receive all of the water to which he or she is entitled before a junior user will get any water.
The “first come, first served” approach of the prior appropriation doctrine can be modified in emergency situations. For example, if an imminent threat to public health and safety exists, which overrides the need to comply with statutory procedures, and no feasible alternative exists, the TCEQ may grant an emergency permit, order, or amendment to an existing permit for not more than 120 days. See Texas Water Code Section 11.139. These actions may be taken without notice or an opportunity to be heard, but a hearing must be held within 20 days of the permit’s issuance. Under this exception, the water right holder must be compensated for the water that is taken to satisfy the emergency.
Permissible Uses of Surface Water.
Surface water may be appropriated by an individual for: domestic and municipal uses; agricultural uses; industrial uses; mining and recovery of minerals; hydroelectric power; navigation; recreation and pleasure; public parks; game preserves; and “any other beneficial use. See Texas Water Code Section 11.023. When appropriating state water, preferences shall be given to each of these uses in the order listed. See Texas Water Code Section 11.024.
In Texas, applications for permits to appropriate surface water are filed with the Texas Commission on Environmental Quality. The TCEQ will then review the application for administrative completeness and a technical evaluation. At this point, notice is given to the public (it is published in a local newspaper and written notice is mailed to water right holders in the same supply/river basin) and a 30 day protest period begins. If a protest is filed by an affected person within these 30 days, an administrative hearing is held before an Administrative Law Judge from the State Office of Administrative Hearings, who hears evidence and makes a recommendation to the TCEQ as to whether the permit should be granted. At this point, the TCEQ will determine whether to grant the permit. If no protest is filed, the TCEQ determines whether the permit should be granted. If a permit is denied, the applicant may appeal the decision to the court system.
A permit to appropriate water may be granted only if TCEQ finds that: (1) there is unappropriated water available; (2) the permit seeks to put water to beneficial use; (3) the permit does not impair existing water rights; (4) the permit is not detrimental to public welfare; (5) the permit is consistent with the State Water Plan and relevant Regional Water Plans; and (6) reasonable diligence will be used to avoid waste and achieve conservation. See Texas Water Code Section 11.134.
When a permit is granted, that date that the permit was deemed administratively complete by the TCEQ becomes the “priority date” for that water right. This determines the water right holder’s position as to senior and junior appropriators.
A permit provides the specific parameters that must be followed by the water right holder in using the surface water. Specifically, a permit grants the holder to use a specific amount of water, at a specific location, for a specific purpose.
A water right is limited by the amount of water specifically granted under a permit and by the amount of water which is being or can be beneficially used for the purpose recognized by the permit. See Texas Water Code Section 11.025. This means that if a person has a water right to divert 10 acre-feet for irrigating crops, but that person is only able to actually use 5 acre-feet, the remaining 5 acre-feet of water is considered unappropriated.
There are several types of permits, each of which may impose its own temporal limitation. The types include: (1) Regular permit (lasting for as long as the use continues); (2) Seasonal permit (limits the use of water to certain days or months); (3) Temporary permit (use up to three years); or (4) Emergency permit (use up to 30 days if the public health, safety, and welfare are threatened).
It is important to note that a water right may be suspended or adjusted by the TCEQ in a period of drought or other emergency water shortage. Specifically, the TCEQ may temporarily suspend the rights of water right holders and/or adjust the amounts of permitted diversions. See Texas Water Code 11.053. This type of temporary suspension may occur without notice or an opportunity for the affected water rights holders to be heard, but a hearing on the suspension must be held within at least 45 days after the order is issued. See Texas Admin. Code Section 36.8.
There are certain types of diversions that are exempt from the permitting process, meaning that a person may use surface water for these limited purposes without obtaining a water right from TCEQ. See Texas Water Code Section 11.142. The exemptions include:
* A dam or reservoir on a person’s own land with storage of no more than 200 acre feet of water for domestic and livestock purposes;
* A dam or reservoir on one’s own property with storage of no more than 200 acre feet of water for wildlife or fishing purposes but not for fish farming;
* Water from the Gulf of Mexico and adjacent bays and arms of the Gulf used in operations associated with drilling and producing petroleum if the amount does not exceed one acre-foot per 24 hour period;
* A reservoir for surface coal mining operations if the water is used solely for sediment control or in compliance with laws relating to fire or dust suppression;
* The use of brackish or salt water from the Gulf of Mexico or its arms or bays for the cultivation of shrimp, finfish, crustaceans, and other aquatic species; and
* Up to 200 acre-feet of water per year for historic cemeteries of at 100 years old or older.
Transfer of Surface Water Permit.
A surface water right is recognized as a property right in Texas. Thus, although the permit holder has no title to the water, he does have a property interest in the right to use the water. As with other property, a water right may be sold, leased, or transferred to another person. A water right may be conveyed automatically with land (and is so conveyed unless expressly reserved) or can be sold separately from land. When a water right is sold, the deed should be recorded as any other property deed.
Importantly, however, the TCEQ does impose certain limits on the transfer of water rights. If the sale does not involve a change in the purpose of use, amount of use, or place of use, then a party needs only to file a simple notice of change of ownership with the TCEQ. Most sales, however, do alter either the location, amount, or purpose of use. For these type of transfers, a permit amendment is required and must be approved by the TCEQ after a review and analysis of the proposed change.
Upcoming Blog Post.
Stay tuned next week for a report on a recent Texas Public Policy Foundation surface water panel and a discussion of some of the major current events surrounding Texas surface water law. Then the following week be on the lookout for a blog outlining the basics of Texas groundwater law.