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WATER RIGHTS OUTLINE and CHECKLIST for the REAL ESTATE PRACTITIONER (Figuring out Whether You Got ’Em, How to Get ’Em, and How to Transfer ’Em

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WATER RIGHTS OUTLINE and CHECKLIST for the REAL ESTATE PRACTITIONER (Figuring out Whether You Got ’Em, How to Get ’Em, and How to Transfer ’Em WATER RIGHTS OUTLINE AND CHECKLIST FOR THE REAL ESTATE PRACTITIONER (Figuring out whether you got ’em, how to get ’em, and how to transfer ’em. Remember – this is TEXAS!) Ruben R. Barrera Bracewell & Patterson, L.L.P. 106 South St. Mary’s, Suite 800 San Antonio, Texas 78205 THE CHANGING FACE OF WATER RIGHTS IN TEXAS FEBRUARY 1-2, 2001 SAN ANTONIO, TEXAS CHAPTER 9 Acknowledgment I would like to acknowledge Mary Q. Kelly for her contribution to portions of the outline. I would also like to acknowledge Mary Ann Hisel for her assistance in the preparation of the outline. Ruben R. Barrera Copyright © 2001 by Ruben R. Barrera All rights reserved, including the right of reproduction in whole or in part in any form. Water Rights Outline and Checklist Chapter 9 Table of Contents WATER RIGHTS OUTLINE ............................................1 I. SCOPE OF OUTLINE ................................................1 II. OWNERSHIP OF WATER ............................................1 A. Ownership of Water Affected by Source ...............................1 B. Underground Water ..............................................1 1. Definition of Underground Water ..............................1 a. Types of Underground Water ...........................1 (1) Percolating Water ..............................1 (2) Underground Stream Water .......................1 (3) Artesian Water .................................1 (4) Underflow of Surface Watercourse .................1 b. Underground Water Presumed to be Percolating Water ........1 c. Underground Water Considered Property of Owner of Surface Estate .............................................1 (1) Percolating Water ..............................1 (2) Artesian Water .................................2 2. Application of the Rule of Capture to Underground Water ...........2 3. Limitation on the Rule of Capture Involving Underground Water ......2 4. Rule of Capture v. Rule of Reasonable Use .......................2 5. Exceptions to Rule That Underground Water Belongs to Owner of Surface Estate .............................................3 a. Underflow of Watercourse .............................3 b. Underground Streams .................................3 A. Surface Water ..................................................3 1. Definition of Surface Water ...................................3 a. Types of Surface Water ................................4 (1) Definition of Watercourse ........................4 2. Surface Water Considered Property of State ......................4 3. Exceptions to Rule that Surface Water Belongs to State .............4 a. Diffused Surface Water Exception ........................4 (1) Definition of Diffused Surface Water ................4 (2) Ownership of Diffused Surface Water ...............4 b. Developed Water .....................................4 c. Spring Water ........................................5 i Chapter 9 Water Rights Outline and Checklist III. RIGHTS TO USE WATER .............................................5 A. Rights to Use State Water .........................................5 1. General ..................................................5 a. Nature of Right ......................................5 b. Two Doctrines Govern Right to Use State Water ............5 (1) Riparian Doctrine ...............................5 (2) Appropriation Doctrine ..........................5 c. Merger of Two Doctrines Into One Statutory System .........5 2. Riparian Water Rights .......................................6 a. Definition of Water Rights ..............................6 b. Characteristics of Riparian Rights ........................6 (1) Not An Ownership Right .........................6 (2) Riparian Right Is Real Property Right ...............6 (3) Riparian Right Dependent On Land Being Contiguous to Watercourse ................................6 (4) Riparian Right Also Dependent On Land Being Within Watershed ..............................6 (5) Riparian Rights Extend Only to Original Survey ........6 (6) Time Within Which Rights Are Effective .............6 (7) Rights Apply Only to Ordinary Flow And Underflow Of Watercourse ................................7 (8) Riparian Rights Are Held In Common Along Watercourse ..................................7 (9) Rights Not Destroyed by Non-Use ..................7 (10) Use Limited By Reasonableness ....................7 (11) Purpose of Use ................................7 (12) Use of Water On Non-Riparian Lands ...............7 c. Current Status of Riparian Rights ........................7 (1) Merger of Riparian Rights With Appropriation System ...7 (2) Modification of Limitations .......................8 (3) Recognition Of Adjudicated Riparian Rights ..........8 (4) Unadjudicated Riparian Rights That Survived .........8 d. Equitable Irrigation Riparian Rights .......................8 3. Appropriation Rights .......................................8 a. Definition Of Appropriation Water Rights ..................8 b. Appropriation Water Rights Under Early Irrigation Acts .......9 (1) Certified Filings ................................9 (2) Permits Originating Under The Early Irrigation Acts ....9 c. Characteristics of Appropriation Water Rights in Contrast to Riparian Rights .....................................10 (1) “First In Time - First In Right” Rule ................10 ii Water Rights Outline and Checklist Chapter 9 (2) Forfeited Due to Abandonment ...................10 (3) Cancelled for Nonuse ...........................10 (4) Not Limited To Use Of Ordinary Flow Or Underflow of Watercourse ...............................10 (5) Defined Rights ................................10 (6) Current Status of Certified Filings and Permits ........11 4. Adjudication of Non-Statutory and Statutory Water Rights ..........11 a. Water Rights Adjudication Act of 1967 ...................11 b. Certificates of Adjudication ............................11 c. Recording of Adjudicated Water Rights ..................12 d. Unadjudicated Statutory and Non-Statutory Water Rights Barred ............................................12 e. Current Status of Adjudication .........................12 5. Obtaining Water Permits to Use State Water Under Current Statutory Procedures ......................................12 a. Permit Required ....................................12 b. Purposes for Which Water may be Appropriated ............12 c. Scope of Appropriative Rights ..........................13 d. Permit Application ...................................13 e. Review and Action on Permit ..........................13 g. Notice Requirement ..................................13 h. Hearing ...........................................14 i. Action on the Application .............................14 j. Issuance of Permit ...................................14 k. Recording of Permit .................................15 l. Date of Priority .....................................15 m. Types of Permits ....................................15 (1) Seasonal Permit ...............................15 (2) Temporary Permits ............................15 (3) Term Permits .................................15 (4) Emergency Permits and Other Authorizations ........16 (5) Storage Permits ...............................16 (6) Dam and Reservoir ............................16 n. Exceptions to Requirements of Need for Permit .............16 (1) Domestic and Livestock Exceptions ................16 (2) Drilling and Producing Petroleum Exception .........16 (3) Sediment Control Exception .....................16 (4) Mariculture Activities Exception ..................16 (5) Historic Cemeteries Exception ....................16 6. Rights of Owners of Land Adjoining Canals, Ditches, or Other Works ..................................................17 7. Reuse of Return Flows .....................................17 iii Chapter 9 Water Rights Outline and Checklist 8. Amendment of Water Rights .................................17 9. Interbasin Transfers ........................................18 10. Watermasters ............................................20 11. Abandonment, Forfeiture or Cancellation of Permits, Certified Filings, and Certificates of Adjudication ..................................20 a. Abandonment and Forfeiture ...........................20 b. Cancellation .......................................21 (1) General Principle ..............................21 (2) Cancellation in Whole or in Part ...................21 12. Return Surplus Water ......................................21 13. Water Banking/Texas Water Trust ............................22 B. Right to Use Private Water ........................................22 1. Percolating Water .........................................22 2. Artesian Water ...........................................22 3. Regulation of Underground Water ............................23 a. Groundwater in Groundwater Districts ...................23 b. Groundwater in the Edwards Aquifer Region ...............23 4. Surface Water ............................................24 C. Prescriptive Water Rights .........................................25 D. Eminent Domain ................................................25 E. Conservation Plans ..............................................25 F. Endangered Species Act ..........................................25 IV. TRANSFER OF TITLE TO WATER AND RIGHTS TO WATER ............25 A. Private Water ..................................................25 B. State Water ...................................................25 1. Riparian Rights ...........................................25
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