In Texas, the water rights are dependent on whether the water is surface or ground water. In general, the landowner owns the groundwater in Texas. Groundwater is administered by the capture rule which gives landowners the right to capture whatever water they find underneath their property.
It is important to note that the landowners can’t make a claim of ownership on the water however, they have the right to pump and capture whatsoever is obtainable, regardless of how the pumping and capture of water will affect neighboring wells.
On the other hand, surface water is a property of the state which a landowner can use, only if he or she has obtained permission from the state.
In the meantime, there is a limitation for the pumping and capturing of groundwater and it is that the water must be pumped from a source of groundwater that’s underneath the landowner’s property. This eliminates the preference of drilling a slant well that crosses an underground property line.
Away from the groundwater, the surface water rights, on the other hand, is a complex situation because the Texas surface waters are owned and allocated by the state of Texas. It is more complicated in the way the state allocates the surface water via two distinct and widely different doctrines for rights determination.
The Riparian doctrine is the first doctrine the state uses. According to English common law, the riparian doctrine administers surface water privileges to the adjacency of land ownership. Based on this doctrine, if an individual possesses a land that borders a stream or river, he or she can make use of the surface water as long as “the usage is reasonable with regards to the needs of other riparian owners.”
The riparian doctrine can be applied to areas that get large, reliable amounts of rainfall, however, there are times when droughts will cause a shortage of surface water, this is when the major issues start to arise.
The prior appropriation doctrine is the second doctrine the state of Texas uses in determining the surface water rights. This second doctrine is different from the riparian doctrine, it is very statutory in nature. What this means is that land ownership has no relevance in deciding what right an individual has to make use of surface water.
This second doctrine makes use of a “first in time, first in right” approach whereby water rights can be bought or sold. Meanwhile, the oldest rights are prioritized over the newer rights. It was during the westward development of the United States that the prior appropriation approach was established due to the infertile nature of regions being developed.
This second doctrine enabled ranchers and farmers to have unrestricted access to surface water without the burden of owning a land adjacent to it. Furthermore, the second doctrine provides a way for right allocations to be made during severe droughts (when less water was available than had been appropriated).
In order to reduce conflict and provide equality, the Water Rights Adjudication Act was passed into law by Texas lawmakers in the year 1967. The new law merges the riparian doctrine and the prior appropriation doctrine as one and creates a statewide permitting system
In certain counties in Texas water rights for commercial re-sale is becoming a negotiating tool in selling or buying property. Can commercial use of water be severed from properties? Yes it can be since the water can be sold to generate revenue.