Water law will continue to evolve as the conditions of society, politics, populations, and economics changes. Two legal doctrines of surface water law are recognized in Texas today-the riparian doctrine and the prior appropriation doctrine. Riparian Doctrine. The riparian doctrine is based on English common law. These court-developed rules are used in deciding cases that involve water use conflicts.
The basic concept is that private water rights are tied to the ownership of land bordering a natural river or stream. Thus, water rights are controlled by land ownership. Riparian landowners have a right to use the water, provided that the use is reasonable in relation to the needs of all other riparian owners.
Riparian owners retain the right to use water so long as they own the land adjacent to the water. Prior Appropriation Doctrine. This doctrine, on the other hand, is controlled by statute. Applied in the western states, prior appropriation is not related to land ownership; instead water rights are acquired by compliance with statutory requirements.
While the principles of riparian rights were appropriate in areas of England and the United States where rainfall averages 30 inches or more a year, these rights were not suited to the arid West. During their early development, western states failed to control rivers and streams, and water was treated as though it belonged to no one.
In the absence of any rules, people simply took water from streams and used it; that is, they appropriated it. When this practice became legalized, it became known as the Doctrine of Prior Appropriation. In the Texas Legislature merged the riparian rights system into the prior appropriation system with passage of the Water Rights Adjudication Act. The act required any person claiming a riparian water right to file a claim for the right by with the Texas Water Commission.
With passage of the act, Texas consolidated the allocation of surface water into a unified water permit system. Anyone wishing to use surface water exclusive of drainage water must receive permission from the state in the form of a "water right. Diffused surface water, in its natural state, occurs after rainfall or snowmelt and flows across land from high elevations to lower elevations.
This diffused water is often called stormwater, drainage water or surface runoff. Once the water flows into a clearly defined watercourse, it is claimed by the state and is subject to appropriation. On its way to the watercourse, drainage water often flows across privately owned lands. In such cases the water does not automatically become the property of the landowners, although they may capture and use it.
The court did not overturn the state's free use or absolute ownership rule for groundwater that allows owners to withdraw water without liability to neighboring owners whose wells are dried up or whose water amounts are reduced. It did hold that the landowner "owns" the groundwater beneath the surface and that use of several factors, including but not limited to historical uses, might constitute a legitimate regulatory measure.
The court remanded for a determination of whether the state statutes, as applied to this owner, constituted a taking of property under the multi-factor Penn Central test. This rule allows landowners to pump as much water as they desire, without liability to surrounding landowners who might claim that the pumping has depleted their wells. Most underground water in Texas is held in aquifers. In Texas, water rights depend on whether the water is surface water or groundwater. Surface water is publicly owned and governed by the State of Texas.
Water flowing in Texas creeks, rivers, and bays is state water. This surface water is public property; however, the state confers on individuals and organizations the right to use water from a stream, creek, pond, or lake or to impound water in a lake or pond. Correspondingly, in Friendswood Development Co. Smith-Southwest Industries, Inc, S. The capture rule is subject to two legislative restrictions. The amount of groundwater a landowner can capture may be restricted when:.
These restrictions illustrate that groundwater, while privately owned, may be regulated by the state legislature. Section Underflow is not defined by statute, but one court has held that it is that portion of the flow of a surface watercourse occurring in the sand and gravel deposits beneath the surface of the stream bed.
In order to be underflow, it must be hydrologically connected to the surface flow of the stream. Even though the Texas legislature has the ultimate regulatory authority over groundwater management, it has delegated this responsibility to local groundwater conservation districts.
To date, 83 local groundwater conservation districts have been established throughout the state and four more are awaiting confirmation.
Chapter 36 of the Texas Water Code gives districts extensive legal authority. They can register and permit wells, keep drilling and well records, regulate well spacing and production, require a permit for water transfers, buy and sell water, undertake aquifer storage and recovery projects, levy taxes and pumping fees and generally engage in projects to conserve and protect the aquifer.
However, most districts only require well registration, or require that new wells be drilled a certain distance from existing wells. Many have not changed the capture rule by limiting and enforcing the amount of water pumped from any given well. While the Texas Supreme Court has sustained the authority of districts to regulate groundwater, they have not precluded landowners from challenging district rules for the taking of private property.
The law is seemingly well established that once groundwater bubbles to the surface and becomes part of a watercourse, it becomes state-owned surface water. If, however, the groundwater is captured before flowing to the surface, it is the property of the landowner.
Except for the Edwards Aquifer Authority, which regulates groundwater pumping in order to protect springs and the threatened and endangered species that live there, neither the Rule of Capture nor groundwater conservation districts explicitly protect the springs of Texas.
This year marks the st anniversary of the Rule of Capture. Suggestions to revise or replace the Rule of Capture have come from a number of landowners, interest groups, citizens, water officials and even some legislators.
Just what change will emerge is uncertain. One thing is certain: Unless a consensus emerges from among the many politically active water stakeholders and interest groups, the legislature will be reluctant to make major changes to the Rule of Capture and, under that rule, Texas springs will continue to go dry.
Who Owns the Water? A primer on Texas groundwater law and spring flow. By Ronald Kaiser The interrelationships between groundwater, aquifers and springs are not obvious to the casual observer. The Importance of Groundwater Texans use nearly 17 million acre-feet of water each year.
Texas Water Law Texas has linked its law to the geological container holding the water.
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