“Water, water, everywhere, nor any drop to drink.”
― Samuel Taylor Coleridge
There is no shortage of global crises these days: financial turmoil, poverty, global warming, war and terrorism – just to name a few. It seems like our very existence and prosperity are frequently challenged. Sometimes it is easy to get complacent if you are not face-to-face with these issues on a routine basis. However, everyone on earth must come to grips with one of the oldest “global crises” known to humankind: the need for fresh water.
Water is the basis for our livelihoods and our future development. As water flows, it not only shapes our topography, it also shapes our economy and our future. Our thirst for this precious commodity, and our desire to regulate it, is not new – legal scholars believe Texas water regulation began in the 1600s at the same time when Spanish missions and presidios started taking shape. At that time, Spanish water law encouraged the formation of community irrigation ditches. Historians believe that those old Spanish laws gave birth to increased population in (what is now) Texas, because people began to gather around the areas that could be cultivated with fresh water.
Today, our world population is exploding more than ever – including in our own backyard. So, naturally, the demand for water is beginning to exceed supply since Mother Earth isn’t “making” more water; further, many states, such as Texas, have long ago ceased building any major dam production systems. This creates more and more reliance on the water rights granted to us in our various water laws.
Riparian vs. Littoral Rights
To understand water rights, we must first go over some basic water-rights terminology. The first term, “littoral rights”, concerns the rights of landowners whose property abuts an ocean, sea or lake, rather than a river or stream. Littoral rights are commonly used in connection with the use and enjoyment of the shore or beach. Thus, the term “littoral land” means land bordering the ocean, sea or a lake. By contrast, “riparian rights” concern the rights of owners whose property abuts a river or a stream. If you want a simple mnemonic aid (memory trick) to help you remember which type of water applies to which right, just remember: “L” stands for “Littoral” and “Lake”, but “R” stands for “Riparian” and “River”.
Riparian and littoral water rights come from many sources, including state law, federal law, and “common law” (a/k/a “judge-made law”). Further, some treaties between various Native Americans and the United States affect our riparian and littoral rights to this day. Also even though water-rights laws vary greatly from state to state, the basic pretext of riparian rights 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.
Littoral rights commonly address our rights to the use of the shore or beach. Littoral rights include such things as the right to place a dock into the water to reach navigable water, usage of water for domestic and agricultural purposes, boating, fishing and swimming. These littoral rights are very similar to riparian rights. In many states, the only practical difference between littoral rights and riparian rights is the type of body of water.
In Texas, water rights depend on whether the water is groundwater or surface water. “Groundwater” is percolating water, or water found below the earth’s surface. If, however, the water comes from the underflow of a river, it is no longer considered groundwater.
For many years, Texas courts have ruled that a landowner has a right to pump all the water that she can from beneath her land. Essentially, if multiple landowners have access to the same groundwater source, then Texas law dictates that the owner who pumps it out the fastest gets to utilize or sell it. This is referred to as “the rule of capture,” or the law of the biggest pump. This is much different from many other states that require the owner to only make “reasonable use” of groundwater. Thus, if your property has groundwater underneath it, you can harvest and sell this water, but you must be vigilant so your neighbors do not beat you to the punch (or better yet, beat you to the water).
The “rule of capture” is not a new concept – Texas adopted it from across The Pond – this rule of law comes from the English Common Law of “absolute ownership,” which means you have a right to capture water, and to sell or move it. Texas adopted this rule way back in 1904 when the Texas Supreme Court in Houston & T.C. Ry. Co. v East, 81 S.W. 279 (Texas 1904) stated that a property owner could suck as much water out of the dirt as they chose, and in so doing, would not be liable to their neighbors, even if their neighbors’ wells ran dry.
The Houston & T.C. Ry. Co. case has never been overturned (yet). In 1999, it was challenged by another case involving the famous Ozarka water company. In the Ozarka case, the Texas Supreme court upheld the Houston & T.C. Ry. Co. rule, but the Court acknowledged that they might soon decline to continue this same old law if the Texas Legislature did not address overpumping of groundwater. The Legislature responded by beefing up the laws to allow citizens to manage overpumping via a groundwater conservation district. The jury is still out on just how effective these conservation districts are in preventing overpumping.
However, despite its name, there are a few exceptions to the “absolute ownership” rule (in other words, the “absolute ownership” rule isn’t really absolute). If any of these exceptions apply, then one landowner can sue another landowner for muddying up his groundwater. Here are the exceptions:
- If one landowner removes groundwater by drilling a well directly on their neighbor’s property, or by drilling a “slant” well, then that is considered trespassing and the offending landowner is liable for damages.
- If there is “malicious” or “wanton” conduct in pumping water for the sole purpose of injuring an adjoining landowner. This is a very squishy concept, but it generally refers to some type of evil or some type of deliberate intention to harm your neighbor’s water supply.
- Waste. If, for example, a property owner wastes their water by allowing it to escape their land or percolate back into the water table.
- Unlawful pollution. For example, if you (literally) poison someone else’s well, or are so careless that your actions cause contamination to someone else’s water supply.
- Negligent overpumping from adjoining lands.
As you have probably surmised, the above exceptions are fairly fact specific and are not easy to prove.
Surface Water Rights:
According to the Texas Water Code Section 11.021, “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.”
About two-thirds of the surface water in Texas is used for our cities and industry. The rest is primarily used for irrigation. Our surface water is owned by the State and held in trust for the public. Typically, in order to use this state-owned water, you must get a “water right” permit from the Texas Commission on Environmental Quality. This permit allows you to “impound, divert or use” the state’s water. However, the water right does not give you ownership of the State’s water, but instead gives you the right to possess the water. However, even though you don’t own this water, you can sell, lease or convey your water rights to someone else. For example, if you own land that has water rights and you sell the land, then the water rights tag-along with the deed to the new owner unless you specifically exclude out the water rights from the rest of the sale. Also, you can bifurcate the water right from the land and sell, lease, etc., the water right accordingly. If you transfer or convey the water rights, you must memorialize it in writing (or else it won’t be effective) and you should record the instrument making the transfer.
If you have a valid permit, then you may use surface water 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” approved by the Texas Commission on Environmental Quality.
Each water-right permit carries with it the rules that must be followed by the water-right holder in using the surface water. Each permit grants the holder the right 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. In other words, “use it or lose it” – if the State of Texas gives you 1,000 acre-fee of water but you only use 1 acre-foot, then you can lose the right to use the other 999 acre-feet.
Any water-right permit may be suspended or adjusted by the Texas Commission on Environmental Quality during a drought or other emergency water shortage… ahh, yes, one of those various crises discussed above!
In conclusion, if you own land or have any interest in preserving your water rights, you need to understand what type of water you have, and then determine which rule applies to you. If you do not properly and diligently pursue your rights, you could be losing out on a valuable resource, meanwhile your neighbor could be riding a tidal wave of H20 prosperity.