Texas Water: Basics of Groundwater Law

***This article is not a substitute for the advice of an attorney.***

Today we will continue on in our Texas Water series by looking at the law applicable to Texas groundwater.  Be sure to check out the prior posts on Texas surface water law and on current issues in Texas surface water if you missed them.

What is groundwater? 

Groundwater is defined as “water percolating below the surface of the earth” but not including subterranean streams or rivers.  (Note:  Like above ground rivers, subterranean rivers in Texas would be state-0wned.  To date, however, no subterranean river has been identified in Texas and, thus, at least until this type of river is identified, all underground water is treated as percolating.)

Most underground water is held in aquifers.   The nine major aquifers hold 97% of the groundwater in Texas are:  Ogallala, Gulf Coast, Edwards, Carrizo-Wilcox, Trinity, Edwards-Trinity, Seymour, Hueco-Mesilla, Bloson, and Cenozoic Pecos Alluvium.

How Is Groundwater Used?

Of the 17 million acre-feet of water used by Texans each year, 60% (approximately 10.2 million acre-feet) is groundwater.

Of the groundwater used, 80% (approximately 8.16 million acre-feet) of the water is used for agricultural irrigation for approximately 6.3 million acres of irrigated agricultural land.

Another 15% (1.53 million acre-feet) is used by municipalities.

Photo via Jennifer Blackburn, National Sorghum Producers

Who Owns the Groundwater?

Landowners in Texas own the water beneath their property.  See Texas Water Code Section 36.002.  Moreover, recent case law makes clear that a landowner owns not only the water that emerges from the ground, but the water in place underground as well.  When water is taken, or even in some cases where regulations limit the ability to pump groundwater, a landowner may be able to assert a takings claim because he or she is deprived of his or her property right in the water underlying the land.  This is in sharp contrast to surface water, which is owned by the State of Texas in trust for the public and may only be used after a permit is obtained.

What Is The Rule of Capture?

Groundwater in Texas is governed by the legal doctrine known as the Rule of Capture.  The Rule of Capture essentially provides that because a landowner also owns the water beneath his property, the landowner has the right to pump as much water as he wishes even at the expense of his neighbor.  Under the Rule of Capture, a landowner needs no permit to drill a well and pump groundwater, and he may pump as much water as he may beneficially use even if that causes his neighbor’s well to go dry.  He may also sell the water withdrawn from the ground for use at any location.  What is the remedy for a neighbor who worried about his well going dry?  Drill a bigger/deeper well.  In light of this, many refer to Texas groundwater law as the “law of the biggest pump.”

Texas first adopted this law in 1904 in Houston & Texas Central Railway Co. v. East.  In that case, Mr. East owned a shallow well on his property.  The railroad drilled a larger, deeper well on its neighboring property, which pumped so much water that it caused Mr. East’s well to go dry.  Mr. East sued, but the Texas Supreme Court found in favor of the railroad company.  The court held that under Texas groundwater law, a person who owns the land may drill a well and use the water from that well, even if such uses cause his neighbor’s well to go dry.

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Are there any limits on the Rule of Capture?

Yes.  Not surprisingly, there are various limits on the Rule of Capture.  Although a landowner owns the water beneath his or her property, this does not give the landowner the right to capture a specific amount of groundwater, nor does it allow the landowner to commit acts thath result in waste or subsidence.  See Texas Water Code Section 36.002  The limitations fall into two categories:  (1) common law exceptions and (2) Legislative exceptions.

Common Law Exceptions:  There are five common law exceptions to the Rule of Capture that limit a landowner’s right to pump groundwater.  First, a landowner may not “maliciously take water for the sole purpose of injuring his neighbor.”  Second, a landowner may not “wantonly and willfully waste” groundwater.  Third, a landowner may not negligently drill or pump from a well in a manner that causes subsidence on his neighbor’s property.  Fourth, a landowner may not pump from a contaminated well.  Finally, a landowner my not trespass onto another’s land in order to pump groundwater.  If a landowner’s pumping falls within one of these exceptions, he is not protected by the Rule of Capture and may be required to cease pumping or be liable for damages.  (Three of these exceptions were essentially codified in 2011 and are now part of the Texas Water Code.  Under the statute, a landowner may not “cause waste, cause malicious drainage, or negligently cause subsidence.”)  See Texas Water Code Section 36.002.

Legislative Exceptions:  Due to a Constitutional Amendment in 1917 known as the Conservation Amendment, the Texas Legislature has the duty to preserve and conserve all of Texas’ natural resources.  This includes the power to regulate the drilling and pumping of groundwater.  The Legislature decided that the “preferred method of groundwater management” in Texas is through local Groundwater Conservation Districts.  See Texas Water Code Section 36.0015.  These GCDs are able to enact rules and regulations, including requiring permits, metering, and limitations on the amount of water that may be withdrawn in their area.  See Texas Water Code Section 36.0015.  Much of the groundwater in Texas falls under the authority of a GCD.  GCDs will be the topic of a forthcoming blog post.

Upcoming Blog Posts in Texas Water Series

In the coming weeks, blog posts will address:  (1) Groundwater Conservation Districts in Texas, including their purpose, method of creation, rule surrounding their meetings and actions, and wells and areas exempt from their reach; and (2) Current issues in groundwater law.

7 Responses to Texas Water: Basics of Groundwater Law

  1. Pingback: Basics of Texas Groundwater Conservation Districts

  2. Marty Jamieson says:

    Good intro to water law.
    Thank you.

    Could you consider an article of caveats?

    Ie current water rights priorities and right of state diversion of regional water?

  3. tdowell says:

    Thank you for your comment. I will certainly look into an article on this topic. Are there any specific issues that are of interest to you?

    Thanks again for reading the Texas Agriculture Law Blog.

  4. Mike Steward says:

    Do Municipalities have the right to take away ground water rights from property in Agriculture status?

    Well water used for irrigation only and track of land is the largest in city limits.

    Thanks!

  5. Pingback: The Top 5 Texas Ag Law Blog Stories for 2013

  6. tdowell says:

    Thank you for your comment on the Texas Agriculture Law Blog and for your patience in receiving an answer. I am unable to provide you any specific legal advice, but can give you some information on the general law surrounding takings of groundwater in Texas. This email is not a substitute for the advice of an attorney. I would strongly recommend that you consult a licensed attorney to discuss your specific issue.

    You asked whether a municipality can take away ground water rights from a property in agriculture status. In general (certainly the specific facts could change the answer) is that a municipality likely does have the power to “take” groundwater rights under the power of eminent domain.

    Eminent domain in Texas is controlled by Texas Property Code Chapter 21. Here is a link to that statute: http://www.statutes.legis.state.tx.us/Docs/PR/htm/PR.21.htm

    Eminent domain allows a governmental entity to take private property for public use upon payment of just compensation. This means that in order for eminent domain to apply generally, three factors must be met: (1) the entity taking the water must be a government entity or a private entity granted eminent domain by the government; (2) the property must be taken for “public use” rather than private use; and (3) just compensation must be paid. The first factor is likely met here as municipalities are government entities. Whether the second factor is met is a critical question to consider under the circumstances, although courts do define “public use” as being quite broad. Finally, the determination of just compensation depends upon the market value of the property (here the water rights) at the time of the taking.

    As you will see, Section 21.0121 specifically applies to the condemnation of water rights. It requires additional facts to be proven by an entity seeking to acquire water, including that the entity has prepared a drought contingency plan, developed and implemented a water conservation plan, made a bona fide good faith effort to obtain alternative water supplies, made a bona fide good effort to acquire rights to water by voluntary purchase or lease, and made a showing that the water is needed to provide for the domestic needs of the entity. Unless a government entity is able to show each of these factors, the court must deny their petition to condemn the water rights.

    Also, Section 21.0421 specifically applies to the calculation of compensation for water rights that are taken.

    Again, the specific facts of your situation could greatly impact the applicable law and analysis and I would highly recommend you seek advice from legal counsel.

    Thank you,
    Tiffany

  7. Shelby says:

    What is being researched in Texas regarding water that moves back and forth from surface to groundwater? And who owns the water when this happens?

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