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

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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

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(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

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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 2. Appropriation Rights ...... 26 a. Exception to the Rule ...... 26 3. Right to Water from Canals, Ditches or Other Works ...... 26 4. Evidencing a Change in the Ownership of Water Rights ...... 26 a. Mineral Rights v. Water Rights ...... 26

V. WATER SUPPLY CONTRACTS ...... 26 A. Authority to Sell Water ...... 26 B. Conserved or Stored Water; Supply Contract ...... 26 C. Contractual Sales of Water Along Middle and Lower Rio Grande ...... 27 D. Requirements of Supplier ...... 27

VI. UNLAWFUL USE, DIVERSION AND WASTE ...... 27 A. Unlawful Use of State Water ...... 27 B. Civil Penalty ...... 27

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C. Other Unlawful Taking ...... 28 D. Administrative Penalty ...... 28 E. Violation Relating to Unlawful Use of State Water ...... 28 F. Dam Safety ...... 29 G. Interbasin Transfers ...... 29

WATER RIGHTS CHECKLIST ...... 30

I. UNDERGROUND WATER ...... 30 A. Percolating Water ...... 30 B. Artesian Water (treated the same as percolating water) ...... 32 C. Spring Water ...... 35 D. Underground Stream Water – A Contradiction ...... 38

II. SURFACE WATER – STATE-OWNED ...... 38 A. Riparian Water Rights ...... 38 B. Adjudicated Water Rights ...... 39 C. Permitted Water Rights ...... 40 D. Diffused Surface Water – A Contradiction ...... 41

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I. SCOPE OF OUTLINE 208 S.W.2d 577, 579 (Tex. Civ. App.--Austin 1948, This outline and the accompanying checklist no writ). present and provide the real estate practitioner with an overview of Texas law regarding the ownership (2) Underground Stream Water and right to use water, transfer of water rights, water Underground streams of water include water supply contracts and the unlawful use, diversion and which is flowing in known underground streams with waste of water. It does not address the ownership of "well defined channels". See Texas Co. v. Burkett, stream beds and submerged lands, drainage, flood 117, Tex. 16, 296 S.W. 273, 278 (1927), Cantwell plain regulation or federal water law. v. Zinser, 208 S.W.2d 577, 579 (Tex. Civ. App.-- Austin 1948, no writ). II. OWNERSHIP OF WATER The right to use water is related to the (3) Artesian Water ownership of the water. Artesian water is underground water confined under pressure between two impervious A. Ownership of Water Affected by Source strata of earth or rock which rises to the surface of Generally, ownership of water is determined the land without the necessity of pumping. Texas by whether the source or origin of the water is under courts treat artesian water the same as percolating the surface of the earth (underground water) or on the groundwater. surface of the earth (surface water). It can be generally said that under Texas law, underground (4) Underflow of Surface Watercourse water belongs to the owner of the surface estate while Underflow is water which flows beneath the surface water belongs to the state of Texas. See bed of a surface watercourse. It is considered the Bartley v. Sone, 527 S.W.2d 754, 759-60 (Tex. Civ. property of the state, subject to the principles App.-- San Antonio 1975, writ ref 'd n.r.e.). There applicable to surface water because it is are some important exceptions to both of these hydrologically connected to the surface flow of a general rules. stream underflow. See TEX. WATER CODE ANN. § 11.021 (Vernon 2000). B. Underground Water 1. Definition of Underground Water b. Underground Water Presumed to be Underground water is water that is found Percolating Water underneath the surface of the land or which, although In the absence of contrary evidence, found on the surface of the land, has its origins underground water is presumed to be percolating underneath the surface. water. See Texas Co. v. Burkett, 117 Tex. 16, 296 There are several types of underground S.W. 273, 278 (1927); Pecos County Water Control water: & Improvement Dist. No. 1 v. Williams, 271 S.W.2d 503, 506 (Tex. Civ. App.–El Paso 1954 writ ref’d a. Types of Underground Water n.r.e.); Denis v. Kickapoo Land Co., 771 S.W.2d (1) Percolating Water 235 (Tex. App.–Austin 1989, writ denied). Percolating waters are those waters "percolating, oozing or filtrating through the earth", c. Underground Water Considered Property but do not include the underflow of a river (or of Owner of Surface Estate surface watercourse) or water in a "defined (1) Percolating Water subterranean stream" (or underground stream). Percolating water is regarded as being the Underground water is presumed to be percolating. property of the owner of the surface estate. See City See Houston and T.C. Ry. Co. v. East, 98 Tex. 146, of Corpus Christi v. City of Pleasanton, 154 Tex. 81 S.W. 279, 280 (1904); Bartley v. Sone, 527 269, 276 S.W.2d 798, 802 (1955); Texas Co. v. S.W.2d 754, 760 (Tex. Civ. App.--San Antonio Burkett, 117 Tex. 16, 296 S.W. 273, 278 (1927). 1975, writ ref’d n.r.e.); See also Cantwell v. Zinser, The Texas Water Code also recognizes the ownership

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rights of a landowner to percolating water. See TEX. percolating water which causes subsidence of a WATER CODE ANN. § 36.002 (Vernon 2000). neighboring landowner’s land. See Friendswood Dev. Co. v. Smith-Southwest Indus., Inc., 576 (2) Artesian Water S.W.2d 21, 30 (Tex. 1978). Artesian Water, like percolating water, is c. Although a landowner can use as also regarded as being the property of the owner of much artesian water as is necessary for his needs, the surface estate. See City of Corpus Christi v. City there are statutory provisions prohibiting its waste. of Pleasanton, 276 S.W. 2d 798, 802 (1955). See TEX. WATER CODE ANN. §§ 11.205, 11.207 (Vernon 2000). 2. Application of the Rule of Capture to d. Withdrawal of percolating water Underground Water may be subject to regulation by groundwater The rule that a landowner generally owns conservation districts. See TEX. WATER CODE ANN. underground water is based on the application of the §§ 36.002, 36.0015 (Vernon 2000). rule of capture which provides that underground e. Established and recognized water belongs to the landowner who captures it. See groundwater rule of capture rights that are lawful City of Sherman v. Pub. Util. Comm’n of Texas, 643 may be curtailed, modified, restricted, or eliminated S.W.2d 681, 686 (Tex. 1983). Under the rule of through the consultation process, or the direct capture, which is based on the English common law application of the Endangered Species Act “take” rule of Acton v. Blundell, 12 M.&W. 324, 152 E.R. prohibitions. 16 U.S.C.A. §§ 1538(a)(1), 1639(a) 1223 (Ex. 1843), the owner of land can pump (West 2000). unlimited quantities of percolating water located under his land even though that action may impact a 4. Rule of Capture v. Rule of Reasonable Use neighboring landowner’s ability to obtain water on The continuation of the rule of capture was his own land, or impact any neighboring surface recently addressed by the Supreme Court in Sipriano water supplies. See Houston and T.C. Ry. Co. v. v. Great Spring Water of America, Inc., 1 S.W.3d East, 98 Tex. 146, 81 S.W. 279, 280 (1904); City of 75 (1999). The Plaintiff claimed that wells he owned Corpus Christi v. City of Pleasanton, 154 Tex. 289, were severely depleted by the defendant’s alleged 276 S.W.2d 798, 802 (1955); Pecos County Water nuisance, negligence, gross negligence, and malice. Control & Improvement Dist. No. 1 v. Williams, 271 The defendant purchased land, constructed wells and S.W.2d 503, 505 (Tex. Civ. App.–El Paso 1954, began producing groundwater for bottling purposes. writ ref’d n.r.e.). Percolating water does not need to The defendant obtained a summary judgment denying be used on or for the benefit of the surface estate all of the plaintiff’s claims, which was affirmed by “and can likewise be sold for off-site use and outside the court of appeals. In the lower court, the plaintiff the basin where produced,” to any other party despite argued that his claims fell within the recognized substantial loss in transportation. This includes exceptions to the rule of capture and further that artesian water. See City of Corpus Christi v. City of Texas should abandon the rule of capture and replace Pleasanton, 154 Tex. 289, 276 S.W.2d 798, 802 it with the rule of reasonable use. At the Supreme (1955). Court, the plaintiff abandoned the argument that he had stated a claim under a recognized exception to 3. Limitation on the Rule of Capture the rule of capture and instead argued only that the Involving Underground Water rule of capture should be abandoned. The Supreme a. A landowner cannot pump Court, in a unanimous decision, affirmed the lower percolating water in a malicious way with the court judgments, therefore applying the rule of purpose of injuring a neighboring landowner or have capture to groundwater. The Supreme Court, the pumping amount to wanton and willful waste of however, served notice that the rule of capture could the water. See City of Corpus Christi v. City of change in the future if the legislature did not Pleasanton, 154 Tex. 289, 276 S.W.2d 798, 801 adequately address regulation of groundwater. The (1955). majority opinion indicated that there were compelling b. A landowner may be liable to reasons for abandoning the rule of capture and damages resulting from the negligent pumping of replacing it with the rule of reasonable use. The

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Court further held that it had the power to make such watercourse, such as beds, banks forming a channel, a change and would not be reluctant to do so in the and a current of water. future if the legislature did not adequately address In April 1992, the Texas Water Commission these problems. In deferring to the legislature as the by emergency rule declared the Edwards Aquifer to appropriate body to take steps to protect be an underground stream, thereby making state groundwater, the Supreme Court acknowledged the water subject to appropriation by permit from the recent amendments to Chapter 36 of the Texas Water commission. The Edwards Underground River Code (i.e., applicable to groundwater conservation Rules also declared a moratorium on new pumping districts) as contained in Senate Bill No. 1. In 1997, until permanent pumping rules were promulgated (30 Senate Bill No. 1 specifically gave more authority to TEX. ADMIN. CODE § 298 (2000). Just after the groundwater conservation districts to regulate and permanent rules on permitting withdrawals from the manage groundwater withdrawals and to regulate the Edwards Aquifer were approved in September 1992 transfer of water outside of the district. See TEX. (30 TEX. ADMIN. CODE § 298 (2000), a Travis WATER CODE ANN. §§ 36.0151, 36.0161, 36.052, County District Court held that the rules were void 36.1071, 36.1072, 36.1073, 36.108, 36.113, because they exceeded the Commission’s statutory 36.1131, 36.117, 36.122, 36.123 (Vernon 2000). authority. See Danny McFadin and Texas Farm Bureau, et. al., v. Texas Water Commission, et. al.; 5. Exceptions to Rule That Underground Cause No. 92-05214. The Texas Natural Resource Water Belongs to Owner of Surface Estate Conservation Commission repealed the rules in 1993. a. Underflow of Watercourse [18 Tex. Reg. 6337-6339 (September 17, 1993)]. While percolating water belongs to the owner Legislation enacted by the 73rd Texas of the surface estate, the underflow of a surface Legislature in 1993 has mooted the issue. Senate Bill watercourse belongs in the state of Texas See TEX. No. 1477, known as the Edwards Authority Act, WATER CODE ANN. § 11.021(a) (Vernon 2000). created the Edwards Aquifer Authority and further created a permitting system for groundwater b. Underground Streams withdrawals from the Edwards Aquifer and Attempts have been made to characterize prohibited all new wells (except for domestic or various underground water sources as underground livestock use wells) without a permit. The Edwards streams, although no Texas court has yet held that Authority Act expressly states that the geologic Section 11.021 of the Texas Water Code applies to formation in the central Texas area known as the both the underflow of a surface watercourse and Edwards Aquifer is not an underground river. See underground streams. A few cases have suggested, Tex. S.B. 1477, Ch. 626, §§ 1.01, 1.14, 1.15, 1.31, however, that the ownership of water in underground 1.33, 73rd Leg., R.S. (1994) Although the effective streams is different from percolating water. See date of S.B. 1477 was September 1, 1993, Houston and T.C. Ry. Co. v. East, 98 Tex. 146, 81 implementation of the bill was delayed until July 1, S.W. 279, 280 (1904); Texas Co. v. Burkett, 117 1996 because of Voting Rights Act and state Tex. 16, 296 S.W. 273, 278 (1927); Bartley v. Sone, constitutional issues. See Barshop v. Medina County 527 S.W.2d 754, 759-60 (Tex. Civ. App.– San Underground Water Conservation Dist., 928 Antonio 1975, writ ref’d n.r.e.); Cantwell v. Zinser, S.W.2d 618 (Tex. 1996). 208 S.W.2d 577, 579 (Tex. Civ. App.–Austin 1948, no writ); Pecos County Water Control & A. Surface Water Improvement Dist. No. 1 v. Williams, 271 S.W. 2d 1. Definition of Surface Water 503, 506 (Tex. Civ. App.–El Paso 1954 writ ref’d Surface water is that water which is found in n.r.e.); Denis v. Kickapoo Land Co., 771 S.W.2d surface watercourses, lakes or coastal water areas. 235 (Tex. App.–Austin 1989, writ denied). See also Diffused water is also considered surface water since TEX. WATER CODE ANN. § 11.339 (Vernon 2000). by its definition it is found on the surface of the earth. In the Kickapoo case, the court of appeals See W. HUTCHINS, THE TEXAS LAW OF held that the presumption of percolating groundwater WATER RIGHTS, 515 (1961). is not rebutted, absent proof that a subterranean watercourse possesses the characteristics of a surface a. Types of Surface Water

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Surface water includes the ordinary flow and a. Diffused Surface Water Exception tides of surface watercourses (i.e., rivers, streams), (1) Definition of Diffused Surface Water lakes and coastal waters, as well as all stormwater, Diffused surface water is water which lies on floodwater, and rainwater. the surface of the land and has not reached or entered a natural body of water or watercourse. Diffused (1) Definition of Watercourse surface water includes surface drainage water which A surface watercourse is a channel with a originates from rainfall or melting snow. It also well-defined bed and banks, a current of water, and includes the outflow of springs which has not been a “permanent source of supply”, although it is not collected in a watercourse. See Sun Underwriters necessary that the supply of water be continuous to Ins. Co. of New York v. Bunkley, 233 S.W.2d 153, satisfy the “permanent source of supply” 155 (Tex. Civ. App.–Fort Worth 1950, writ ref’d requirement. See Hoffs v. Short, 114 Tex. 501, 273 n.r.e.) and Stoner v. City of Dallas, 392 S.W.2d 910, S.W. 785, 788 (1925). 912 (Tex. Civ. App.–Dallas 1965, writ ref’d n.r.e.). Watercourses include navigable streams, It is arguable that flood water that becomes severed whether navigable in fact or at law. The courts have from the watercourse never to return and which thus far held that the “state holds title to waters in spreads out over the land is diffused surface water. navigable streams in trust for the public”. See Motl See Stoner v. City of Dallas, 392 S.W.2d 910, 911 v. Boyd, 116 Tex. 82, 286 S.W. 458, 467-68 (1926); (Tex. Civ. App. -- Dallas 1965, writ ref’d n.r.e.).. In re The Adjudication of the Water Rights of the Upper Guadalupe Segment of the Guadalupe River (2) Ownership of Diffused Surface Water Basin, 642 S.W.2d 438, 444 (Tex. 1982). A For lands granted by a sovereign prior to statutorily navigable stream is a watercourse which 1895, diffused surface water belongs to the owner of retains an average width of 30 feet from the mouth the surface estate until the water enters a up. See TEX. NAT. RES. CODE ANN. § 21.001(3) watercourse, thus becoming state water. See Turner (Vernon 1978). A stream is regarded as navigable v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2nd 221, when it is used or is susceptible to being used in its 228 (1936); Miller v. Letzerich, 121 Tex. 248, 49 “natural and ordinary condition as a highway for S.W.2d 404, 408 (1932). It is arguable that diffused commerce”. See Taylor Fishing Club v. Hammett, surface water on lands granted by the state of Texas 88 S.W.2d 127, 129 (Tex. Civ. App.–Waco 1935, after 1895 also belongs to the owner of the surface writ dism’d). estate. See Pecos County Water Control & Improvement Dist. No. 1 v. Williams, 271 S.W.2d 2. Surface Water Considered Property of 503, 506 (Tex. Civ. App.–El Paso 1954, writ ref’d State n.r.e.); OP. TEX. ATTY. GEN. No. WW-97 (1957); The state of Texas owns the “water of the and W. HUTCHINS, THE TEXAS LAW OF ordinary flow, underflow and tides of every flowing WATER RIGHTS, 537 (1961). river, natural stream, and lake, and of every bay or arm of the Gulf of Mexico, and the stormwater, b. Developed Water floodwater, and rainwater of every river, natural Generally, developed water is water that is stream, canyon, ravine, depression, and watershed in legally reduced to possession and remains under the the state . . .” The state of Texas also owns the control of the owner of an artificial water channel. “water imported from any source outside the See Guelker v. Hidalgo County Water Control & boundaries of the state for use in the state and which Improvement Dist. No. 6, 269 S.W.2d 551, 555 is transported through the beds and banks of any (Tex. Civ. App.–San Antonio 1954, writ ref’d n.r.e.). navigable stream within the state or by utilizing any Once the owner loses physical control of the water facilities owned or operated by the state. . . .” See and it enters or reaches a watercourse, the owners’ TEX. WATER CODE ANN. §§ 11.021(a), 11.021(b) rights to the water terminate. The decision in South (Vernon 2000). Texas Water Co. v. Beiri, 247 S.W.2d 268, 272-73 (Tex. Civ. App.–Galveston 1952, writ ref’d n.r.e.), 3. Exceptions to Rule that Surface Water supports the proposition that an appropriator of Belongs to State

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developed water does not own the corpus of the water b. Two Doctrines Govern Right to Use State but only retains the right of use of such water. Water (1) Riparian Doctrine c. Spring Water Under the riparian doctrine, the owner of Spring waters have been defined as “waters land that is contiguous to a watercourse or other that break out upon the surface of the earth through natural body of water has certain rights to the use of natural openings in the ground”. See W. water (for domestic, livestock and irrigation HUTCHINS, THE TEXAS LAW OF WATER purposes) based purely on the location of the land. RIGHTS, 552 (1961). Generally, spring waters Although riparian rights as we know them are a rising to the surface of private property are presumed product of the English Common Law, irrigation to be owned by the landowner, and in the absence of riparian rights were also recognized by civil law. contrary evidence, constitute private water. See The distinction lies in that irrigation riparian rights Texas Co. v. Burkett, 117 Tex. 16, 296 S.W. 273, under civil law had to be the result of a specific grant 278 (1927); Bartley v. Sone, 527 S.W.2d 754, 760 to the landowner by the sovereign (whether Spain, (Tex. Civ. App.–San Antonio 1975, writ ref’d n.r.e.). Mexico or Texas) while all riparian rights under the This presumption is based on the earlier presumption English Common Law are a right which exists that underground water captured at the surface is incident to the ownership of land that is contiguous to percolating water which is considered to be the a watercourse. See W. HUTCHINS, THE TEXAS property of the owner of the surface estate. See LAW OF WATER RIGHTS, 102 (1961). See also Pecos County Water Control & Improvement Dist. In re the Adjudication of Water Rights in the No. 1 v. Williams, 271 S.W.2d 503, 506 (Tex. Civ. Medina River Watershed of the San Antonio River App.–El Paso 1954, writ ref’d n.r.e.). See also Basin, 670 S.W.2d 250 (Tex. 1984); State v. Sipriano v. Great Spring Water of America, Inc., 1 Valmont Plantations, 346 S.W.2d 853, 878 (Tex. S.W.3d 75 (1999). Civ. App.–San Antonio 1961) aff’d and opinion If, however, spring water has its source in an adopted, 355 S.W.2d 502 (Tex. 1962); Watkins underground stream, is of sufficient magnitude to be Land Co. v. Clements, 98 Tex. 578, 86 S.W. 733, of any value to riparian landowners, or is the source 735 (1905). of or contributes in large part to the flow of a watercourse, the spring water is considered to be (2) Appropriation Doctrine state water. See Texas Co. v. Burkett, 117 Tex. 16, Under the appropriation doctrine, rights to 296 S.W. 273, 278 (1927); Bartley v. Sone, 527 use state water are acquired by following the permit S.W.2d 754, 760 (Tex. Civ. App.–San Antonio system procedures in applicable provisions of the 1975, writ ref’d n.r.e.). Texas Water Code and regulations promulgated by the Texas Natural Resource Conservation III. RIGHTS TO USE WATER Commission. See W. HUTCHINS, THE TEXAS LAW OF WATER RIGHTS, 101 (1961). A. Rights to Use State Water Appropriation water rights are specifically defined 1. General rights, and in times of water shortage, the a. Nature of Right appropriation doctrine relies on the “first in time -- The right to use state water is a usufructory first in right” principle which provides that the holder right, i.e. a right to use and enjoy property owned by of the most senior water right shall have priority in the state. See Texas Water Rights Comm’n v. the use of water. Wright, 464 S.W.2d 642, 649 (Tex. 1971); In re the Adjudication of the Water Rights of Upper c. Merger of Two Doctrines Into One Guadalupe Segment of the Guadalupe River Basin, Statutory System 642 S.W.2d 438, 444 (Tex. 1982). Section 11.301 et. seq. of the Texas Water Code (codification of the Water Rights Adjudication Act of 1967) provides for the merger of the water rights recognized under the two doctrines into a single water rights appropriation system. This

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system balances the interests of water users and the Riparian rights attach only to land that is state of Texas in the administration of the right to use located within the watershed of the bordering state water. watercourse. See Watkins Land Co. v. Clements, 98 Tex. 578, 86 S.W. 733, 735 (1905); Matagorda 2. Riparian Water Rights Canal Co. v. Markham Irrigation Co., 154 S.W. a. Definition of Water Rights 1176, 1180 (Tex. Civ. App.–Galveston 1913, no A riparian water right is a right which exists writ). incident to the ownership of land that is contiguous to or traversed by a watercourse or other natural body (5) Riparian Rights Extend Only to Original of water (i.e., lake or pond) and which allows the Survey riparian owner to make reasonable use of the water. Arguably, riparian rights do not extend to See W. HUTCHINS, THE TEXAS LAW OF tracts of land outside the boundaries of the original WATER RIGHTS, 102 (1961). See also Watkins survey of land granted by the sovereign. Thus, a Land Company v. Clements, 98 Tex. 578, 86 S.W. non-riparian tract of land that originally did not have 733, 735 (1905); Humphreys - Mexia Co. v. riparian rights cannot attain these rights merely by Arsenaux, 116 Tex. 603, 297 S.W. 225 (1927). being joined in ownership with a riparian tract. See Watkins Land Co. v. Clements, 98 Tex. 578, 86 b. Characteristics of Riparian Rights S.W. 733, 735 (1905); but compare Texas Co. v. (1) Not An Ownership Right Burkett, 116 Tex. 603, 297 S.W. 225 (1927) (which The riparian right is not an ownership right held that riparian owner has “legal right to take non- (i.e., the riparian owner does not own the corpus of riparian land” as long as riparian owner does not the water). It is only a right to use the water. See injure or interfere with other riparian owners). See Haas v. Choussard, 17 Tex. 588, 589 (1856). also Santa Rosa Irrigation Co. v. Pecos River Irrigation Co., 92 S.W. 1014 (Tex. Civ. App.–Fort (2) Riparian Right Is Real Property Right Worth 1906, writ ref’d n.r.e.). The riparian right is a real property that is appurtenant to the land (i.e., an incorporeal (6) Time Within Which Rights Are Effective hereditament). See Motl v. Boyd, 116 Tex. 82, 286 Riparian rights attached to land granted by S.W. 458 (1962), Chicago R.I. & G. Ry. Co. v. the Republic and state of Texas between January 20, Tarrant County Water Control & Improvement Dist. 1840 and July 1, 1895. No. 1, 123 Tex. 432, 73 S.W. 2d 55, 64 (1934); Prior to January 20, 1840, lands contiguous Zavala County Water Improvement Dist. No. 3 v. to a watercourse or other natural body of water did Rogers, 145 S.W.2d 919, 923 (Tex. Civ. App.–El not carry riparian rights of irrigation unless the Paso 1940, no writ). grants of land by the respective sovereign specifically granted the right of irrigation. The owners of these (3) Riparian Right Dependent On Land Being lands did, however, have the right to use the waters Contiguous to Watercourse from these watercourses for domestic purposes. See Riparian rights attach only to a tract of land State v. Valmont Plantations, 346 S.W.2d 853, 861, that is “contiguous to and touches upon” a 864 (Tex. Civ. App.–San Antonio 1961), aff’d and watercourse or other natural body of water. See El opinion adopted, 355 S.W.2d 502, 503 (Tex. 1962). Paso County Water Improvement Dist. v. El Paso, The Irrigation Act of 1913 provided that the 133 F.Sup. 894, 909 (W.D. Tex. 1955), modified on Act should not be interpreted as granting riparian other grounds, 243 F. 2d 927 (5th Cir.), cert. denied, rights to owners of lands that were granted by the 355 U.S. 820 (1957); Woody v. Durham, 267 state of Texas after July 1, 1895. See also Motl v. S.W.2d 219, 221 (Tex. Civ. App.–Fort Worth 1954, Boyd, 116 Tex. 82, 286 S.W. 458, 473 (1926); In re writ ref’d n.r.e.). the adjudication of the Water Rights of the Upper Guadalupe River Segment of Guadalupe River (4) Riparian Right Also Dependent On Land Basin, 625 S.W.2d 353 (Tex. Civ. App.–San Being Within Watershed Antonio 1981), aff’d, 642 S.W.2d 438 (Tex. 1982)

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and TEX. WATER CODE ANN. § 11.001(b) (Vernon however, make use of a watercourse in a way that 2000). will injure other riparian landowners. See Watkins Today, based on Sections 11.001 and 11.303 Land Co. v. Clements, 98 Tex. 578, 865 S.W. 733, of the Texas Water Code, the only surviving riparian 735-36 (1905); Fort Worth Improvement Dist. No. rights are those rights attaching to grants of land by 1 v. City of Fort Worth, 106 Tex. 148, 158 S.W. a sovereign between January 20, 1890 and July 1, 164, 167 (1913). 1895 (and under certain instances prior to January 20, 1840) and which are contiguous to a watercourse (11) Purpose of Use or other natural body of water, but the use of water Riparian rights included the right to use the can only be for domestic and livestock purposes. See water of an adjoining watercourse or other natural TEX. WATER CODE ANN. §§ 11.001, 11.303(1) body of water for domestic and livestock, irrigation, (Vernon 2000). power generation, storage and, to a limited extent, recreational purposes. Domestic and livestock uses (7) Rights Apply Only to Ordinary Flow And are nevertheless considered paramount. An upper Underflow Of Watercourse riparian owner cannot lawfully use water from a Riparian rights apply only to the ordinary watercourse in a way which interferes with the right flow and underflow of a watercourse. Riparian of a lower riparian owner to use the same water to rights do not attach to waters rising above the “line of satisfy his domestic and livestock needs. See Baker, highest ordinary flow” which are regarded as Fleming & Hubert v. Brown, 55 Tex. 377, 379-380 floodwater. The “line of highest ordinary flow is the (1881); Martin v. Burr, 111 Tex. 57, 228 S.W. 543, highest line of flow which a [watercourse] reaches 544 (1921); Rhodes v. Whitehead, 27 Tex. 304, 309- and maintains for a sufficient period of time to 10 (1863); Lakeside Irrigation Co. v. Kirby, 166 become characteristic when its waters are in their S.W. 715, 718 (Tex. Civ. App.–San Antonio 1914, ordinary, normal and usual condition, uninfluenced writ ref’d n.r.e.); Stacy v. Delery, 57 Tex. Civ. App. by recent rainfall or surface runoff.” See Motl v. 242, 122 S.W. 300 (1909, no writ). Boyd, 116 Tex. 82, 286 S.W. 458, 468-69 (1926). Any amounts of water rising above the “line of (12) Use of Water On Non-Riparian Lands highest ordinary flow” are considered floodwater and Arguably, a riparian landowner cannot divert cannot be used by the riparian owner. See Motl v. and sell water for use on non-riparian lands unless Boyd, 116 Tex. 82, 286 S.W. 458, 471 (1926). the diversion and sale of water does not prejudice other riparian landowners. See Watkins Land Co. v. (8) Riparian Rights Are Held In Common Clements, 98 Tex. 578, 86 S.W. 733, 738 (1905); Along Watercourse but compare Texas Co. v. Burkett, 117 Tex. 16, 296 Each riparian landowner holds his riparian S.W. 273, 276 (1927); Humphreys - Mexia Co. v. water rights in common with all other riparian Arsenaux, 116 Tex. 608, 297 S.W. 225, 229 (1927). landowners. Priority of use does not establish a priority of right among the different riparian c. Current Status of Riparian Rights landowners. See Rhodes v. Whitehead, 27 Tex. 304, (1) Merger of Riparian Rights With 309 (1863); Motl v. Boyd, 116 Tex. 82, 286 S.W. Appropriation System 458, 470 (1926). As a result of the Adjudication Act of 1967, now codified in Section 11.301 et. seq. of the Texas (9) Rights Not Destroyed by Non-Use Water Code, the Texas Water Rights Commission Riparian rights are not destroyed by mere (predecessor to the Texas Department of Water non-use. See Fleming v. Davis, 37 Tex. 173, 201 Resources who was the predecessor to the Texas (1872). Water Commission who itself was the predecessor to the Texas Natural Resource Conservation (10) Use Limited By Reasonableness Commission) finalized the merger of riparian water The riparian right is not quantified; however rights with appropriation water rights into a single a riparian landowner may only use as much water as statutory system. Section 11.303 of the Texas Water he reasonably needs. A riparian landowner cannot, Code requires that sworn claims of all existing

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riparian rights be filed on or before September 1, extinguished or barred. See TEX. WATER CODE 1969; in certain instances up to July 1, 1971; and in ANN. § 11.303 (Vernon 2000). As a result, only certain other situations until September 1, 1974. See riparian water rights for domestic and livestock uses TEX. WATER CODE ANN. §§ 11.303(c), 11.303(e), remain today. All previously discussed rights and/or 11.303(h) (Vernon 2000). Any claims of riparian limitations regarding these rights presumably still water rights that have not been adjudicated under exist. Section 11.303 are considered extinguished. See TEX. WATER CODE ANN. § 11.322(e) (Vernon d. Equitable Irrigation Riparian Rights 2000). The court in State v. Hidalgo County Water In adjudicating riparian water rights, the Control and Improvement Dist. No. 18, 443 S.W.2d Texas Water Rights Commission assigned priority 728 (Tex. Civ. App.–Corpus Christi 1969, writ ref’d dates to the adjudicated riparian rights based on the n.r.e.) recognized equitable irrigation riparian water date of first use. This will make these adjudicated rights that were rejected by the court in State v. riparian rights consistent with the “first in time - first Valmont Plantations, 346 S.W.2d 853 (Tex. Civ. in right” rule which characterizes appropriation App.–San Antonio 1961), aff’d and opinion rights. The quantity of adjudicated riparian rights adopted, 355 S.W.2d 502 (Tex. 1962). The was based on the amount of water used without adjudication of equitable irrigation riparian rights waste during any calendar year between 1963 to was determined on the basis of weighted priorities 1967 and up to 1970 in certain situations. See TEX. and not in accordance with the “first in time, first in WATER CODE ANN. § 11.303(b) (Vernon 2000). right rule.” The adjudication of water rights in the lower Rio Grande Valley occurred prior to the Water (2) Modification of Limitations Rights Adjudication Act of 1967. Requests for While the adjudicated riparian rights are no recognition of equitable riparian water rights in other longer subject to the limitation that the rights apply adjudication proceedings governed by the Act have only to the ordinary flow and underflow of a stream, not been granted. See In re the Adjudication of these rights are now subject to other limitations Water Rights of Cibilo Creek Watershed of the San characterizing appropriation rights such as specific Antonio River Basin, 568 S.W.2d 155, 158 (Tex. acreage to be irrigated, rates of diversion, points of Civ. App.–San Antonio 1978, no writ). diversion, place of use and purpose of use. 3. Appropriation Rights (3) Recognition Of Adjudicated Riparian a. Definition Of Appropriation Water Rights Rights As stated earlier, appropriation water rights Once the adjudication of riparian rights is are those rights that are acquired either by following final, Certificates of Adjudication are issued for the the provisions of the early Irrigation Acts of 1889, adjudicated rights and, as with all adjudicated water 1895, 1913, and 1917 or the existing provisions of rights evidenced by Certificates of Adjudication, the the Texas Water Code and the accompanying adjudicated water rights are now subject to regulations promulgated by the Texas Natural cancellation for nonuse. See TEX. WATER CODE Resource Conservation Commission. Unlike riparian ANN. §§ 11.323, 11.172, 11.173 (Vernon 2000). water rights that are inherent by virtue of ownership of land that is contiguous to or traversed by a (4) Unadjudicated Riparian Rights That watercourse, appropriation water rights are Survived recognized only after abiding by certain statutory and Any riparian right claims not recognized in administrative procedures. an adjudicated watercourse are barred. See TEX. Appropriation water rights have been WATER CODE ANN. § 11.322(e) (Vernon 2000). previously recognized in the following methods: This bar does not include riparian rights to use water for domestic and livestock purposes. Since the Texas (1) Certified filings originating under the Water Code did not require filing of claims of Irrigation Acts of 1889, 1895, and 1913; and riparian rights to use water for domestic and livestock purposes, these rights are, therefore, not

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(2) Permits originating under the iii) Irrigation Act Of 1913 Irrigation Act of 1913 and 1917, the Wagstaff Act of The Irrigation Act of 1913 which replaced 1931. the 1895 Act added “the tides of all flowing streams, the waters of all lakes, bays, or arms of the Gulf of Today, appropriation water permits are Mexico, and collections of still water” to the waters recognized in the following method: declared to be unappropriated by the 1895 Act. The 1913 Act was made applicable to the entire state and (1) Certificates of adjudication and not just the arid portions. This Act provided that permits obtained under existing Water Code holders of preexisting water rights under the 1889 provisions and Texas Natural Resource Conservation and 1895 Irrigation Acts were required to file sworn Commission regulations. statements regarding the construction of the diversion facilities with the county clerk together with a b. Appropriation Water Rights Under Early certified copy filed with the newly created State Irrigation Acts Board of Engineers. The certified copy of the sworn (1) Certified Filings statement is now referred to as a “certified filing.” (a) Historical Development See 1913 Irrigation Act, ch. 171, § 1, 1913 Tex. i) Irrigation Act of 1889 Gen. Laws 358. See also W. HUTCHINS, THE The Irrigation Act of 1889 provided that “the TEXAS LAW OF WATER RIGHTS, 115-18 unappropriated waters of every river or natural (1961). stream within the arid portions of the state of Texas” were the property of the public. These waters were (b) Problems With Certified Filings then made available for appropriation provided a In spite of the well-intentioned attempts at landowner followed and complied with the Act. adopting an effective appropriation system, the early Thus, a landowner who wished to divert public water appropriation system had several problems. First, from a watercourse and apply it to some beneficial the holder of a certified filing was not required to use was required to construct the diversion facilities quantify the water rights being claimed. Secondly, a and file a sworn statement regarding the construction certified filing holder could change the purpose or of the diversion facilities with the county clerk. See place of use of water taken. See Nueces County 1889 Irrigation Act, ch. 88, § 1, 1889 Tex. Gen. Water Control and Improvement Dist. No. 3 v. Laws 100. See also W. HUTCHINS, THE TEXAS Texas Water Rights Comm’n, 481 S.W.2d 930 (Tex. LAW OF WATER RIGHTS, 111 (1961). Civ. App.–Austin 1972, writ ref’d n.r.e.). The holding of this case is no longer valid in view of the ii) Irrigation Act of 1895 provisions of Section 11.122 of the Texas Water The Irrigation Act of 1895 replaced the 1889 Code. Act and stated that “the unappropriated waters of the ordinary flow or underflow of every running or (2) Permits Originating Under The Early flowing river or natural stream, and the storm or Irrigation Acts rainwaters of every river or natural stream, canyon, (a) Historical Development ravine, depression or watershed within those portions i) Irrigation Act of 1913 of the state of Texas in which by reason of the The Irrigation Act of 1913 among other insufficient rainfall or by reason of the irregularity of matters, created the State Board of Engineers, which the rainfall, irrigation is beneficial for agricultural was the predecessor to the present Texas Natural purposes” are the property of the public. A Resource Conservation Commission. This Act also landowner who once again wished to divert public provided that all future rights to water appropriations water from a watercourse had to file an expanded were subject to a permit system administered by the sworn statement regarding the construction of the Board of Engineers. See 1913 Irrigation Act, ch. diversion facilities with the county clerk’s office. See 171, § 1, 1913 Tex. Gen. Laws 358. See also W. 1895 Irrigation Act, ch. 21, § 1, 1895 Tex. Gen. HUTCHINS, THE TEXAS LAW OF WATER Laws 21. See also W. HUTCHINS, THE TEXAS RIGHTS, 116-17 (1961). LAW OF WATER RIGHTS,111 (1961).

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ii) Irrigation Act of 1917 c. Characteristics of Appropriation Water This Act replaced the Irrigation Act of 1913. Rights in Contrast to Riparian Rights The Irrigation Act of 1917 made few modifications Appropriation water rights differ from to the 1913 Act but it provided the framework for our riparian rights in the following manner: current permit process. See Canales Act, ch. 88, 1917 Tex. Gen. Laws 211. See also W. (1) “First In Time - First In Right” Rule HUTCHINS, THE TEXAS LAW OF WATER Under this rule, each appropriation water RIGHTS, 118-20 (1961). right, whether evidenced by a certified filing or This Act initially provided that the State permit, had a priority date which determined its Board of Engineers had the authority to determine priority in relation to other appropriation water rights water rights priorities as well as the authority to during times of water shortage. See TEX. WATER supervise the distribution of stream water. This CODE ANN. § 11.027 (Vernon 2000). The priority section of the Act of 1917 was eventually held to be date was determined by looking at the date of unconstitutional in Bd. of Water Eng’rs v. McKnight, commencement of construction of the diversion 111 Tex. 82, 229 S.W. 301 (1921). facilities in the case of certified filings or the date the The framework provided by the 1917 Act permit application was filed in the case of permits. was subsequently modified by the Wagstaff Act of See W. HUTCHINS, THE TEXAS LAW OF 1931, the Cancellation Statutes of 1953 and, WATER RIGHTS, 112 (1961). The “first in time – ultimately, the Water Rights Adjudication Act of first in right” rule is now codified in Section 11.027 1967. of the Texas Water Code. Note, however, that the water rights in the iii) Wagstaff Act of 1931 Lower Rio Grande River are divided into classes and The Wagstaff Act of 1931 modified the 1917 determined on the basis of weighted priorities and not Irrigation Act by establishing an order of priority for in accordance with the “first in time, first in right” various water uses to be utilized in the issuance of rule. See State v. Hidalgo County Water Control water appropriation permits. See Wagstaff Act, ch. and Improvement Dist. No. 18, 443 S.W. 2d 728 128, 1931 Tex. Gen. Laws 217. This portion of the (Tex. Civ. App.–Corpus Christi 1969, writ ref’d Act is now codified in Section 11.024 of the Texas n.r.e.). Water Code. The water uses are ranked as follows: (1) Domestic and municipal; (2) Industrial; (3) (2) Forfeited Due to Abandonment Irrigation; (4) Mining and recovery of minerals; (5) Appropriation water rights which are Hydroelectric power; (6) Navigation; (7) Recreation abandoned during any three successive years are and pleasure; and (8) Other beneficial uses. See forfeited. See TEX. WATER CODE ANN § 11.030 TEX. WATER CODE ANN. § 11.024 (Vernon 2000). (Vernon 2000). The Wagstaff Act established that municipalities and other political subdivision of the (3) Cancelled for Nonuse state of Texas have the power of eminent domain to Appropriation water rights can be cancelled take water for domestic and municipal purposes. in whole or in part for 10 years of nonuse. See TEX. This portion of the Act is now codified in Section WATER CODE ANN. § 11.172 (Vernon 2000). See 11.033 of the Texas Water Code. See TEX. WATER also Texas Water Rights Comm’n v. Wright, 464 CODE ANN. § 11.033 (Vernon 2000). S.W.2d 642 (Tex. 1971).

iv) Cancellation Statutes Adopted in 1953 (4) Not Limited To Use Of Ordinary Flow Or These statutes provided for the cancellation Underflow of Watercourse of water rights in whole or in part based on nonuse of Appropriation water rights allow the holder the rights. See Act of 1953, Ch. 352, 1953 Tex. to use the ordinary flow or underflow as well as Gen. Laws 867. The statutes are now codified as floodwaters, stormwaters and rainwaters of a Sections 11.171 through 11.186 of the Texas Water watercourse and lake. See TEX. WATER CODE ANN. Code. See TEX. WATER CODE ANN. §§ 11.171 -- §§ 11.021, 11.022 (Vernon 2000). 11.186 (Vernon 2000).

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(5) Defined Rights volumes of use of water. See TEX. WATER CODE Appropriation water rights are specifically ANN. § 11.303(c) (Vernon 2000). Those persons defined water rights, (e.g., place of use, purpose of claiming preserved statutory water rights simply use, diversion point, diversion rate, and acreage to be waited until they received a notice of adjudication irrigated). from the Texas Water Rights Commission (who was superceded by the Texas Department of Water (6) Current Status of Certified Filings and Resources, who was then superceded by the Texas Permits Water Commission, who was subsequently As a result of the Adjudication Act of 1967, superceded by the present Texas Natural Resource now codified in Section 11.301 et seq of the Texas Conservation Commission) before filing any further Water Code, the Texas Natural Resource sworn claims of water rights. See TEX. WATER Conservation Commission has finalized the CODE ANN. § 11.307 (Vernon 2000). adjudication of all appropriation water rights The water rights in any stream or segment of evidenced by the certified filing and/or permits, a stream could then be adjudicated on the motion of except for one portion of the Upper Rio Grande River the Commission or on the petition of 10 or more from Fort Quitman to El Paso. Any claims of claimants of water rights from the source of supply. appropriation water rights that have not been See TEX. WATER CODE ANN. §§ 11.304 (1), adjudicated are considered extinguished. See TEX. 11.304(2) (Vernon 2000). After considering whether WATER CODE ANN. § 11.322(e) (Vernon 2000). the adjudication of a stream or segment would be in In adjudicating water rights evidenced by the public interest, the Commission would prepare a certified filings or permits, the quantity of these Notice of Adjudication describing the stream or rights was determined based on the amount of water segment to be adjudicated and the date by which all used without waste during any calendar year between claims of water rights in the stream or segment were 1963 and 1967, and up to 1970 in certain situations. to be filed with the applicable Commission. See See TEX. WATER CODE ANN. § 11.303(b) (Vernon TEX. WATER CODE ANN. §§ 11.305, 11.306 (Vernon 2000). 2000). Every person claiming a water right of any nature, except for domestic or livestock purposes, 4. Adjudication of Non-Statutory and from the stream or segment under adjudication had to Statutory Water Rights file a sworn claim with the Commission. See TEX. a. Water Rights Adjudication Act of 1967 WATER CODE ANN. § 11.307 (Vernon 2000). The Water Rights Adjudication Act provided Following a series of evidentiary hearings and an the means to reconcile non-statutory (i.e., civil law opportunity to dispute the preliminary conclusions of water rights, common law riparian rights, and other the Commission, the Commission entered an claims of water rights that were not filed under the administrative order specifying the water rights in the 1889, 1895, and 1913 Acts) and statutory (i.e., stream or segment being adjudicated. See TEX. certified filings, and permits) water rights which WATER CODE ANN. §§ 11.308, 11.316 (Vernon existed at the time. 2000). The administrative order of the Commission The Water Rights Adjudication Act has been was then filed in a District Court of the county in upheld as constitutional by the Texas Supreme which the stream or segment under adjudication was Court. See In re Adjudication of the Water Rights of located for final action by the courts. Those who the Upper Guadalupe Segment of the Guadalupe wished to contest the administrative order of the River Basin, 642 S.W.2d 438 (Tex. 1982). Commission could litigate these issues through final Under the Water Rights Adjudication Act, judgment. See TEX. WATER CODE ANN. §§ 11.317, every person claiming a non-statutory water right had 11.322 (Vernon 2000). to file with the Texas Water Rights Commission (or its successor) a statement on or before September 1, b. Certificates of Adjudication 1969 describing among other matters the location and Once a final determination of the rights of nature of the right claimed, the stream or watercourse the water of a stream have been made in accordance and the river basin in which the right is claimed, date with the Water Rights Adjudication Act, the of commencement of works, and the dates and Commission issued to each person who had an

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adjudicated water right(s) a certificate of adjudication Except for the five (5) exceptions discussed describing the identity of the holder of the adjudicated later in this outline, “no person may appropriate any right, the priority, extent and purpose of the state water or begin construction of work designed adjudicated right, a description of the irrigated land for the storage, taking, or diversion of water without if the right is for irrigation, and any other information first obtaining a permit from the [Texas Natural relating to the adjudicated right. See TEX. WATER Resource Conservation] [C]ommission to make the CODE ANN. § 11.323 (Vernon 2000). appropriation.” See TEX. WATER CODE ANN. § 11.121 (Vernon 2000). c. Recording of Adjudicated Water Rights It should be noted that those holders of water Upon the issuance of adjudication, the rights evidenced by (i) certified filings or permits Commission transmits the certificate or a true copy which have not yet been adjudicated or (ii) to the “county clerk of each county in which the certificates of adjudication issued under Section appropriation is made.” After receiving the 11.323 of the Texas Water Code do not need to necessary recording fees from the certificate holder, obtain a new water permit. “the county clerk shall file and record the certificate. . . .” After the certificate is filed and recorded, it is b. Purposes for Which Water may be delivered on demand to the certificate holder. See Appropriated TEX. WATER CODE ANN. § 11.324 (Vernon 2000). “State water may be appropriated, stored, or The only body of water rights not recorded are those diverted for: (1) domestic and municipal uses, rights that remain unadjudicated pending final including water for sustaining human life and the life adjudication, such as the portion of the Upper Rio of domestic animals; (2) industrial uses, meaning Grande River from Fort Quitman to El Paso. processes designed to convert materials of a lower Riparian rights to use water for domestic and order of value into forms having greater usability and livestock use do not need to be recorded. commercial value, including the development of power by means other than hydroelectric; (3) d. Unadjudicated Statutory and Non- irrigation; (4) mining and recovery of minerals; (5) Statutory Water Rights Barred hydroelectric power; (6) navigation; (7) recreation Except for riparian rights for domestic and and pleasure; (8) stock raising; (9) public parks; and livestock use (or rights subsequently acquired by (10) game preserves.” See TEX. WATER CODE ANN. permit), any claims of statutory and non-statutory § 11.023(a) (Vernon 2000). water rights that have not been adjudicated are “State water also may be appropriated, considered extinguished. See TEX. WATER CODE stored, or diverted for any other beneficial use.” See ANN. § 11.322(e) (Vernon 2000). (Note: For a TEX. WATER CODE ANN. § 11.023(b) (Vernon detailed discussion of the adjudication process, See 2000). D. Caroom & P. Elliott, Water Rights Adjudication - “Unappropriated storm water and floodwater Texas Style, 44 Texas Bar J. 1183 (1981).) may be appropriated to recharge underground freshwater bearing sands and aquifers in the portion e. Current Status of Adjudication of the Edwards underground reservoir located within Except for one portion of the Upper Rio Kinney, Uvalde, Medina, Bexar, Comal, and Hays Grande River from Fort Quitman to El Paso, all other counties if it can be established by expert testimony streams and river basins have now been adjudicated. that an unreasonable loss of water will not occur and The current status of each river basin is described in that the water can be withdrawn at a later time for a chart, entitled “Pertinent Dates in Adjudication application to a beneficial use. The normal or Program.” which is available from the Texas Natural ordinary flow of a stream or watercourse may never Resource Conservation Commission. be appropriated, diverted, or used by a permittee for this recharge purpose.” See TEX. WATER CODE 5. Obtaining Water Permits to Use State ANN. § 11.023(c) (Vernon 2000). Water Under Current Statutory Procedures “When it is put or allowed to sink into the a. Permit Required ground, water appropriated under Subsection (c) of [Section 11.023 of the Texas Water Code] loses its

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character and classification as storm water or Water Code and the rules of the Commission. “The floodwater and is considered percolating [C]ommission may require amendment of the groundwater.” See TEX. WATER CODE ANN. § application, maps, or other materials to achieve 11.023(d) (Vernon 2000). necessary compliance.” See TEX. WATER CODE “The amount of water appropriated for each ANN. § 11.129 (Vernon 2000). Once the application purpose mentioned in [Section 11.023 of the Texas for appropriation is recorded by the executive Water Code] shall be specifically appropriated for director of the Commission, “the [C]ommission shall that purpose, subject to the preferences prescribed in make a preliminary examination of the application, Section 11.024 of [the Texas Water] [C]ode. The and if it appears that there is unappropriated water in [Texas Natural Resource Conservation] the source of [water] supply, or that the proposed [C]ommission may authorize appropriation of a appropriation should not be allowed for other single amount or volume of water for more than one reasons, the [C]ommission may deny the application. purpose of use. In the event that a single amount or If the [C]ommission denies the application and the volume of water is appropriated for more than one applicant elects not to proceed further, the purpose of use, the total amount of water actually [C]ommission may order any part of the fee diverted for all of the authorized purposes may not submitted with the application returned to the exceed the total amount of water appropriated.” applicant.” See TEX. WATER CODE ANN. §§ 11.130, See TEX. WATER CODE ANN. § 11.023(e) (Vernon 11.131 (Vernon 2000). 2000). “The water of any arm, inlet, or bay of the f. Approval of Certain Applications Without Gulf of Mexico may be changed from salt water to Hearing sweet or fresh water and held or stored by dams, “If a permit for a reservoir which is listed on dikes, or other structures and may be taken or the effective date of ... section [11.1311 of the Texas diverted for any purpose authorized by [Chapter 11 Water Code] as a recommended project in the current of the Texas Water Code].” See TEX. WATER CODE state water plan has been abandoned, voluntarily ANN. § 11.023(f) (Vernon 2000). canceled, or forfeited for failure to commence construction within the time specified by law, and the c. Scope of Appropriative Rights reservoir project site is owned by a municipality, “A right to use state water under a permit or river authority, other political subdivision, or water a certified filing is limited not only to the amount supply corporation organized under Chapter 67 [of specifically appropriated but also to the amount the Texas Water Code], the [Texas Natural Resource which is being or can be beneficially used for the Conservation] [C]ommission may reissue that same purposes specified in the appropriation, and all water permit with a new priority date to the [Texas Water not so used is considered not appropriated.” See Development] [B]oard without notice or hearing, TEX. WATER CODE ANN. § 11.025 (Vernon 2000). upon submission of an application by the [B]oard. The [Texas Water Development] [B]oard may transfer interests in a permit issued under ... section d. Permit Application [11.1311 of the Texas Water Code] to a In order to obtain a permit to use state water, municipality, river authority, other political an application to appropriate unappropriated state subdivision, or water supply corporation organized water will need to be filed along with the required under Chapter 67 [of the Texas Water Code] as fees. See TEX. WATER CODE ANN. §§ 11.124, otherwise provided by law. A permit issued pursuant 11.125, 11.126, 11.127, 11.1271, 11.128 (Vernon to ... section [11.1311 of the Texas Water Code] 2000). shall be administered in accordance with ... chapter [11 of the Texas Water Code] and as otherwise e. Review and Action on Permit provided by law.” See TEX. WATER CODE ANN. § Once the application is filed, the Texas 11.1311 (Vernon 2000). Natural Resource Commission determines “whether the application, maps and other materials comply with the requirements” of Chapter 11 of the Texas

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g. Notice Requirement regional water plan for any area in which the Notice must be given to the persons who in proposed appropriation is located, unless the the judgment of the Texas Natural Resource Commission determines that conditions warrant Conservation Commission may be affected by an waiver of this requirement, and (iv) the applicant has application for a permit. “The [C]ommission, on the provided evidence that reasonable diligence will be motion of a commissioner or on the request of the used to avoid waste and achieve water conservation executive director [of the Commission], or any as defined by Section 11.002(8)(B) of the Texas affected person, shall hold a public hearing on the Water Code. See TEX. WATER CODE ANN. application. . . . The [C]ommission may act on the § 11.134(a) and (b) (Vernon 2000). See also Texas application without holding a public hearing if, . . . Rivers Protection Association v. Texas Natural after notice,. . . a public hearing has not been Resource Conservation Commission, 910 S.W.2d requested in writing by a commissioner, the executive 147 (Tex. App.–Austin, 1995, writ den’d). This case director, or an affected person who objects to the provides that surface water diverted out of a river application.” See TEX. WATER CODE ANN. § 11.132 and injected into an aquifer for storage and recovery (Vernon 2000). purposes is considered a beneficial use. “Beginning January 5, 2002, the [Texas h. Hearing Natural Resource Conservation] [C]ommission may “At the time and place stated in the notice, not issue a water right for municipal purposes in a the [Texas National Resource Conservation] region that does not have an approved regional water [C]ommission shall hold a hearing on the application. plan in accordance with Section 16.053(i) [of the Any person may appear at the hearing in person, or Texas Water Code] unless the [C]ommission by attorney, or may enter his appearance in writing. determines that conditions warrant waiver of this Any person who appears may present objection to the requirement.” See TEX. WATER CODE ANN. § issuance of the permit. The [C]ommission may 11.134 (c) (Vernon 2000). receive evidence, orally or by affidavit, in support of The court in City of San Antonio v. Texas or in opposition to the issuance of the permit, and it Water Comm’n, 392 S.W.2d 200, 207 (Tex. Civ. may hear arguments.” See TEX. WATER CODE ANN. App.–Austin), aff’d, 407 S.W.2d 752 (1966) held the § 11.133 (Vernon 2000). [Texas Water] Commission has very broad discretion in either granting or denying applications for permits i. Action on the Application for unappropriated water. The Commission’s powers “After the hearing, the [Texas Natural extend beyond the mere inventorying of Resource Conservation] [C]ommission shall make a unappropriated water. It should be noted that written decision granting or denying the application. unappropriated water is defined as the amount of The application may be granted or denied in whole or water remaining after taking into account all existing in part.” uncancelled permits and filings valued at their The Commission shall grant the application recorded levels. See Lower Colorado River Auth. v. only if (i) the application conforms to the Texas Dep’t of Water Res., 689 S.W.2d 873, 874 requirements of Sections 11.124, 11.125, 11.126, (Tex. 1984). 11.127, 11.1271 and 11.1272, of the Texas Water In considering an application for a permit to Code and is accompanied by the prescribed fee store, take, or divert surface water, the Texas Natural according to Section 11.128 of the Texas Water Resource Conservation Commission shall consider Code; (ii) unappropriated water is available in the the effects of the permits on water quality, source of supply; (iii) the proposed appropriation groundwater and on fish and wildlife habitats. See contemplates the application of water to a beneficial TEX. WATER CODE ANN. §§ 11.150, 11.151, 11.152 use, does not impair existing water rights or vested (Vernon 2000). In cases of a new permit or an riparian rights, is not detrimental to the public amendment of a permit, certified filing or certificate welfare, considers the effects of any hydrological of adjudication, the Commission shall consider the connection between surface water and groundwater; state water plan and any approved regional water addresses a water supply need in a manner that is plans. See TEX. WATER CODE ANN. § 11.1501 consistent with the state water plan and an approved (Vernon 2000).

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(1) Seasonal Permit j. Issuance of Permit Under a seasonal permit, “the right to take, “On approval of an application, the [Texas use, or divert water. . . is limited to the portion or Natural Resource Conservation] [C]ommission shall portions of the calendar year stated in the permit”. issue a permit to the applicant. The applicant’s right Additionally, the Texas Natural Resource to take and use water is limited to the extent and Conservation Commission shall specify “the purposes stated in the permit. . . . The permit shall conditions necessary to fully protect prior be in writing and attested by the seal of the appropriations or vested rights on the stream”. See [C]ommission, and contains the information TEX. WATER CODE ANN. §11.137 (Vernon 2000). described in Section 11.135 of the Texas Water Code.” See TEX. WATER CODE ANN. § 11.135 (2) Temporary Permits (Vernon 2000). “In granting the application, the “The [Texas Natural Resource [C]ommission may direct that stream flow Conservation] [C]ommission may issue temporary restrictions and other conditions and restrictions be permits for beneficial purposes to the extent that they placed in the permit being issued to protect the do not interfere with or adversely affect prior priority of senior water rights.” See TEX. WATER appropriations or vested rights on the stream from CODE ANN. § 11.1351 (Vernon 2000). which water is to be diverted under such temporary permit. The [C]ommission may, by appropriate k. Recording of Permit order, authorize any member of the [C]ommission to “The [Texas Natural Resource approve and issue temporary permits without notice Conservation] [C]ommission shall transmit the and hearing if it appears to such issuing party that permit by registered mail to the county clerk of the sufficient water is available at the proposed point of county in which the appropriation is to be made. diversion to satisfy the requirements of the temporary When the county clerk receives the permit and is paid permit as well as all existing rights. No temporary the recording fee, he shall file and record the permit permit issued without notice and hearing shall and delivers it, on demand, to the applicant. When authorize more than 10 acre-feet of water, nor may it the permit is filed in the office of the county clerk, it be for a term in excess of one year. . . . As between is constructive notice of the filing of the application, temporary permits, the one applied for first has the issuance of the permit, and all the rights arising priority.” See TEX. WATER CODE ANN. under the filing of the application and the issuance of §§ 11.138(a), 11.138(c) (Vernon 2000). the permit. See TEX. WATER CODE ANN. §11.136 “The [Texas Natural Resource (Vernon 2000). Conservation] [C]ommission may not issue a temporary permit for a period exceeding three l. Date of Priority calendar years. A temporary permit does not vest in “When the [Texas Natural Resource its holder a permanent right to the use of water. Conservation] [C]ommission issues a permit, the [Additionally,] a temporary permit expires and shall priority of the appropriation of water and the be cancelled by the [C]ommission in accordance with claimant’s right to use the water date from the date of the terms of the permit. The [C]ommission may filing of the application.” See TEX. WATER CODE prescribe by rule the fees to be paid for issuance of ANN. § 11.141 (Vernon 2000). temporary permits, but no fee for issuance or extension of a temporary permit shall exceed $500.” m. Types of Permits See TEX. WATER CODE ANN. §§ 11.138(d), In addition to the regular permit that the 11.138(e), 11.138(f), 11.138(g) (Vernon 2000). Texas Natural Resource Conservation Commission may issue pursuant to Section 11.135 of the Texas (3) Term Permits Water Code, the Commission may also issue the “Until a water right is perfected to the full following types of permits: extent provided by Section 11.026 of [the Texas Water Code], the [Texas Natural Resource Conservation] [C]ommission may issue permits for a term of years for use of state water to which a senior

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water right has not been perfected. The (6) Dam and Reservoir [C]ommission shall refuse to grant an application for “The owner of a dam or reservoir exempted a [term] permit if the [C]ommission finds that there under Section 11.142 of [the Texas Water Code] who is a substantial likelihood that the issuance of the desires to use water from the dam or reservoir for permit will jeopardize financial commitments made purposes other than domestic or livestock use shall for water projects that have been built or that are obtain a permit to do so. [The owner] may obtain a being built to optimally develop the water resources regular permit, a seasonal permit, or a permit for a of the area. The [C]ommission shall refuse to grant term of years.” See TEX. WATER CODE ANN. an application for a term permit if the holder of the § 11.143 (Vernon 2000). senior appropriative water right can demonstrate that the issuance of the term permit would prohibit the n. Exceptions to Requirements of Need for senior appropriative water right holder from Permit beneficially using the senior rights during the term of (1) Domestic and Livestock Exceptions the term permit. Such demonstration will be made “Without obtaining a permit, a person may using reasonable projections based on accepted construct on his own property a dam or reservoir methods. A permit issued under [Section 11.1381 of with normal storage of not more than 200 acre-feet of the Texas Water Code] is subordinate to any senior water for domestic and livestock purposes.” See appropriative water rights.” See TEX. WATER CODE TEX. WATER CODE ANN. § 11.142(a) (Vernon ANN. § 11.1381 (Vernon 2000). 2000).

(4) Emergency Permits and Other (2) Drilling and Producing Petroleum Authorizations Exception “The [Texas Natural Resource “Without obtaining a permit, a person who Conservation] [C]ommission may grant an is drilling and producing petroleum, and conducting emergency permit, order, or amendment to an operations associated with drilling and producing existing permit, certified filing, or certificate of petroleum may take for those purposes state water adjudication after notice to the governor for an initial from the Gulf of Mexico and adjacent bays and arms period of not more than 120 days if [it] finds that of the Gulf of Mexico in an amount not to exceed one emergency conditions exist which present an acre-foot during each 24-hour period.” See TEX. imminent threat to public health and safety and which WATER CODE ANN. § 11.142(b) (Vernon 2000). override the necessity to comply with established statutory procedures and there are no feasible (3) Sediment Control Exception practicable alternatives to the emergency “Without obtaining a permit, a person may authorization. Such emergency action may be construct or maintain a reservoir for the sole purpose renewed once for not longer than 60 days.” of sediment control as part of a surface coal and Emergency authorizations now require notice and a mining operation under the Texas Surface Coal hearing before the Commission. See TEX. WATER Mining and Reclamation Act (Article 5920-11 CODE ANN. § 11.139 (Vernon 2000). Vernon’s Civil Statutes).” See TEX. WATER CODE ANN. § 11.142(c) (Vernon 2000). (5) Storage Permits “The [Texas Natural Resource (4) Mariculture Activities Exception Conservation] [C]ommission may issue permits for Without obtaining a permit, but with notice storage solely for the purpose of optimum to the Texas Natural Resource Conservation development of projects. The [C]ommission may Commission, “a person who is engaged in convert these permits to permits for beneficial use if mariculture operations on land may take for that application to have them converted is made to the purpose state water from the Gulf of Mexico and [C]ommission.” See TEX. WATER CODE ANN. adjacent bays and arms of the Gulf of Mexico in an §11.140 (Vernon 2000). amount appropriate to those mariculture activities. . . .” Mariculture means “the propagation and rearing of aquatic species, including shrimp, other

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crustaceans, finfish, mollusks and other similar showing: (1) that he is entitled to receive or use the creatures in a controlled environment using brackish water; (2) that he is willing and able to pay a just and or marine water.” See TEX. WATER CODE ANN. reasonable price for the water; (3) that the party §§ 11.1421(a), 11.1421(b) (Vernon 2000). owning or controlling the water supply has water not contracted to others and available for the petitioner’s (5) Historic Cemeteries Exception use; and (4) that the party owning or controlling the “Without obtaining a permit, a tax-exempt water supply fails or refuses to supply the available nonprofit corporation that owns a cemetery may water to the petitioner, or that the price or rental divert from a river not more than 200 acre-feet of demanded for the available water is not reasonable water each year to irrigate the grounds of the and just or is discriminatory.” See TEX. WATER cemetery if the cemetery borders the river and is more CODE ANN.§ 11.041(a) (Vernon 2000). than 100 years old.” There are limitations if the “The [Texas Natural Resource diversion will harm a person downstream. See TEX. Conversation] [C]ommission shall hold a hearing on WATER CODE ANN. § 11.1422 (Vernon 2000). the complaint at the time and place stated in the [hearing] order. . . On completion of the hearing, the 6. Rights of Owners of Land Adjoining [C]ommission shall render a written decision.” See Canals, Ditches, or Other Works TEX. WATER CODE ANN. § 11.041(f) (Vernon 2000). “A person who owns or holds a possessor “A conveyance of a ditch, canal, or reservoir interest in land adjoining or contiguous to a canal, or other irrigation work or an interest in such an ditch, flume, lateral, dam, reservoir, or lake irrigation work must be executed and acknowledged constructed and maintained under the provisions of in the same manner as a conveyance of real estate. [Chapter 11 of the Texas Water Code] and who has Such a conveyance must be recorded in the deed secured a right to the use of water in the canal, ditch, records of the county in which the ditch, canal, or flume, lateral, dam, reservoir, or lake is entitled to be reservoir is located. If a conveyance of property supplied from the canal, ditch, flume, lateral, dam, covered [above] is not made in the prescribed reservoir, or lake with water for irrigation of the land manner, it is null and void against subsequent and for mining, milling, manufacturing, development purchasers in good faith and for valuable of power, and stock raising, in accordance with the consideration.” See TEX. WATER CODE ANN. terms of his contract." See TEX. WATER CODE ANN. §§ 11.043(a), 11.043(b) (Vernon 2000). § 11.038(a) (Vernon 2000). “If the person, association of persons, or 7. Reuse of Return Flows corporation owning or controlling the water and the “A person who wishes to discharge and then person who owns or holds a possessory interest in the subsequently divert and reuse the person’s existing adjoining land cannot agree on a price for a return flows derived from privately owned permanent water right or for the use of enough water groundwater must obtain prior authorization from the for irrigation of the person’s land or for mining, [Texas Natural Resource Conservation] milling, manufacturing, development of power, or [C]ommission for the diversion and the reuse of these stock raising, then the party owning or controlling the return flows. The authorization may allow for the water, if he has any water not contracted to others, diversion and reuse by the discharger of existing shall furnish the water necessary for these purposes return flows, less carriage losses, and shall be subject at reasonable and nondiscriminatory prices.” See to special conditions if necessary to protect an TEX. WATER CODE ANN. § 11.038(b) (Vernon existing water right that was granted based on the use 2000). See also Trinity Water Reserve, Inc. v. or availability of these return flows. Special Evans, 829 S.W.2d 831, 860 (Tex. App.–Beaumont conditions may also be provided to help maintain 1992, no writ). instream uses and freshwater inflows to bays and “Any person entitled to receive or use water estuaries. A person wishing to divert and reuse from any canal, ditch, flume, lateral, dam, reservoir, future increases of return flows derived from or lake or from any conserved or stored supply may privately owned groundwater must obtain present to the [Texas Natural Resource authorization to reuse increases in return flows before Conservation] [C]ommission a written petition

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the increase.” See TEX. WATER CODE ANN. amendment to a permit, certified filing, or certificate § 11.042(b) (Vernon 2000). of adjudication from the [Texas Natural Resource Conservation] [C]ommission authorizing the 8. Amendment of Water Rights transfer.” See TEX. WATER CODE ANN. § 11.085(a) “All holders of permits, certified filings, and (Vernon 2000). certificates of adjudication issued under Section “Prior to taking action on an application for 11.323 of [the Texas Water Code] shall obtain from an interbasin transfer, the [C]ommission shall the [Texas Natural Resource Conservation] conduct at least one public meeting to receive [C]ommission authority to change the place of use, comments in both the basin of origin of the water purpose of use, point of diversion, rate of diversion, proposed for transfer and the basin receiving water acreage to be irrigated, or otherwise alter a water from the proposed transfer. Notice shall be provided right.” See TEX. WATER CODE ANN. § 11.122(a) pursuant to Subsection (g) of [Section 11.085 of the (Vernon 2000). Texas Water Code]. Any person may present “Subject to meeting all other applicable relevant information and data at the meeting on the requirements of [Chapter 11 of the Texas Water criteria which the [C]ommission is to consider related Code] for the approval of an application, an to the interbasin transfer.” See TEX. WATER CODE amendment, except an amendment to a water right ANN. § 11.085(d) (Vernon 2000). that increases the amount of water authorized to be “In addition to the public meetings required diverted or the authorized rate of diversion, shall be by Subsection (d) [Section 11.085 of the Texas authorized if the requested change will not cause an Water Code], if the application is contested in a adverse impact on other water right holders or the manner requiring an evidentiary hearing under the environment on the stream of greater magnitude than rules of the [C]ommission, the [C]ommission shall under circumstances in which the permit, certified give notice and hold an evidentiary hearing, in filing, or certificate of adjudication that is sought to accordance with the [C]ommission rules and be amended was fully exercised according to its applicable state laws.” See TEX. WATER CODE ANN. terms and conditions as they existed before the § 11.085(e) (Vernon 2000). requested amendment.” See TEX. WATER CODE “Notice of an application for an interbasin ANN. § 11.122(b) (Vernon 2000). transfer shall be mailed to the following: (1) all Depending on the type of amendment, the holders of permits, certified filings, or certificates of Texas Water Commission may or may not require adjudication located in whole or in part in the basin notice. See 30 TEX. ADMIN. CODE §§ 297.61, of origin; (2) each county judge of a county located 295.158 (2000). in whole or in part in the basin of origin; (3) each Additionally, “all holders of permits and mayor of a city with a population of 1,000 or more certified filings shall obtain the approval of the located in whole or in part in the basin of origin; (4) [Texas Natural Resource Conservation] all ground water conservation districts located in [C]ommission before making any alterations, whole or in part in the basin of origin; and (5) each enlargements, extensions, or other changes to any state legislator in both basins.” See TEX. WATER reservoir, dam, main canal, or diversion work on CODE ANN. § 11.085(f) (Vernon 2000). which a permit has been granted or a certified filing “In addition to the other requirements of [the recorded.” See TEX. WATER CODE ANN. § 11.144 Texas Water Code] relating to the review of and (Vernon 2000). This section does not apply to the action on an application for a new water right or ordinary maintenance or emergency repair of the amended permit, certified filing, or certificate of facility. See TEX. WATER CODE ANN. § 11.144 adjudication, the [C]ommission shall: (1) request (Vernon 2000). review and comment on an application for an interbasin transfer from each county judge of a 9. Interbasin Transfers county located in whole or in part in the basin of “No person may take or divert any state origin. A county judge should make comment only water from a river basin in this state and transfer after seeking advice from the county commissioners such water to any other river basis without first court; and (2) give consideration to the comments of applying for and receiving a water right or an each county judge of a county located in whole or in

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part in the basin of origin prior to taking action on an information required to be submitted by the application for an interbasin transfer.” See TEX. applicant. See TEX. WATER CODE ANN. § 11.085(k) WATER CODE ANN. § 11.085(j) (Vernon 2000). (Vernon 2000). “In addition to other requirements of [the “The [C]ommission may grant, in whole or Texas Water Code] relating to the review of and in part, an application for an interbasin transfer only action on an application for a new water right or to the extent that: (1) the detriments to the basin of amended permit, certified filing, or certificate of origin during the proposed transfer period are less adjudication, the [C]ommission shall weight the than the benefits to the receiving basin during the effects of the proposed transfer by considering: (1) proposed transfer period; and (2) the applicant for the need for the water in the basin of origin and in the the interbasin transfer has prepared a drought proposed receiving basin based on the period for contingency plan and has developed and implemented which the water supply is requested, but not to a water conservation plan that will result in the exceed 50 years; (2) factors identified in the highest practicable levels of water conservation and applicable approved regional water plans which efficiency achievable within the jurisdiction of the address the following: applicant.” See TEX. WATER CODE ANN. (A) the availability of feasible and § 11.085(l) (Vernon 2000). practicable alternative supplies in the receiving basin “The [Texas Natural Resource to the water proposed for transfer; Conservation] [C]ommission may grant new or (B) the amount and purposes of use in amended water rights under [Section 11.085 of the the receiving basin for which water is needed; Texas Water Code] with or without specific terms or (C) proposed methods and efforts by the periods of use and with specific conditions under receiving basin to avoid waste and implement water which a transfer of water may occur.” See TEX. conservation and drought contingency measures; WATER CODE ANN. § 11.085(m) (Vernon 2000). (D) proposed methods and efforts by the “If the transfer of water is based on a receiving basin to put the water proposed for transfer contractual sale of water, the new water right or to beneficial use; amended permit, certified filing, or certificate of (E) the projected economic impact that adjudication authorizing the transfer shall contain a is reasonably expected to occur in each basin as a condition for a term or period not greater than the result of the transfer; and contract term.” See TEX. WATER CODE ANN. § (F) the projected impacts of the 11.085(n) (Vernon 2000). proposed transfer that are reasonably expected to “The parties to a contract for an interbasin occur on existing water rights, instream uses, water transfer may include provisions for compensation and quality, aquatic and riparian habitat, and bays and mitigation. If the party from the basin of origin is a estuaries that must be assessed under Sections government entity, each county judge of a county 11.147, 11.150, and 11.152 of [the Texas Water located in whole or in part in the basin of origin may Code] in each basin. If the water sought to be provide input on the appropriate compensation and transferred is currently authorized to be used under mitigation for the interbasin transfer.” See TEX. an existing permit, certified filing, or certificate of WATER CODE ANN. § 11.085(o) (Vernon 2000). adjudication, such impacts shall only be considered “For the purposes of [Section 11.085 of the in relation to that portion of the permit, certified Texas Water Code], a basin is designated as provided filing, or certificate of adjudication proposed for in accordance with Section 16.051 of [the Texas transfer and shall be based on historical uses of the Water Code]. A basin may not be redesignated in permit, certified filing, or certificate of adjudication order to allow a transfer or diversion of water for which amendment is sought; otherwise in violation of [Section 11.085 of the (3) proposed mitigation or compensation, if any, Texas Water Code].” See TEX. WATER CODE ANN. to the basin of origin by the applicant; (4) the § 11.085(p) (Vernon 2000). continued need to use the water for the purposes “A person who takes or diverts water in authorized under the existing permit, certified filing, violation of [Section 11.085 of the Texas Water or certificate of adjudication, if an amendment to an Code] is guilty of a misdemeanor and upon existing water right is sought; and (5) the conviction is punishable by a fine of not more than

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$1,000 or by confinement in the county jail for not divisions for the purpose of administering adjudicated more than six months. A person commits a separate water rights.” See TEX. WATER CODE ANN. offense each day he continues to take or divert water § 11.325 (Vernon 2000). “The executive director [of in violation of this section.” See TEX. WATER CODE the Texas Natural Resource Conservation ANN. §§ 11.085(q), 11.085(r) (Vernon 2000). Commission] may appoint one watermaster for each “Any proposed transfer of all or a portion of water diversion.” See TEX. WATER CODE ANN. § a water right under [Section 11.085 of the Texas 11.326(a) (Vernon 2000). “The executive director Water Code] is junior in priority to water rights [of the Texas Natural Resource Conservation granted before the time application for transfer is Commission] shall establish a watermaster advisory accepted for filing.” See TEX. WATER CODE ANN. committee. . . . The advisory committee’s duties § 11.085(s) (Vernon 2000). include (1) providing recommendations to the “Any proposed transfer of all or a portion of executive director regarding activities of benefit to a water right under [Section 11.085 of the Texas the holders of water rights in the administration and Water Code] from a river basin in which two or more distribution of water to holders of water rights, (2) river authorities or water districts created under review and comment to the executive director of the Section 59, Article XVI, Texas Constitution, have annual budget of the watermaster operations; and (3) written agreements or permits that provide for the other duties as may be requested by the executive coordinated operation of their respective reservoirs to director with regard to the watermaster operations or maximize the amount of water for beneficial use as requested by holders of water rights in a water within their respective water services areas shall be division which the committee deems of benefit to the junior in priority to water rights granted before the administration of water rights in water divisions.” time application for transfer is accepted for filing.” See TEX. WATER CODE ANN. §§ 11.3261(a), See TEX. WATER CODE ANN. § 11.085(t) (Vernon 11.3261(e) (Vernon 2000). 2000). Once a watermaster is selected, the “An appropriator of water for municipal watermaster shall: “[i] . . . divide the water of the purposes in the basin of origin may, at the streams or other sources of supply of his division in appropriator’s option, be a party in any hearings accordance with the adjudicated water rights; and [ii] under [Section 11.085 of the Texas Water Code].” . . . regulate or cause to be regulated the controlling See TEX. WATER CODE ANN. § 11.085(u) (Vernon works of reservoirs and diversion works in time of 2000). water shortage, as is necessary because of the rights “The provisions of [Section 11.085 of the existing in the streams of his division, or as is Texas Water Code], except Subsection (a), do not necessary to prevent the waste of water or its apply to: (1) a proposed transfer which in diversion, taking, storage, or use in excess of the combination with any existing transfers totals less quantities to which the holders of water rights are than 3,000 acre-feet of water per annum from the lawfully entitled. A watermaster may regulate the same permit, certified filing, or certificate of distribution of water from any system of works that adjudication; (2) a request for an emergency transfer serves users whose rights have been separately of water; (3) a proposed transfer from a basin to determined. A watermaster’s duties shall not include its adjoining coastal basin; or (4) a proposed activities which relate to other programs of the transfer from a basin to a county or municipality or [Texas Natural Resource Conservation] the municipality’s retail service area that is partially [C]ommission, except in situations of imminent threat within the basin for use in that part of the county or to public health and safety or the environment.” See municipality and the municipality’s retail service area TEX. WATER CODE ANN. §§ 11.327(a), 11.327(b), not within the basin.” See TEX. WATER CODE ANN. 11.327(c), 11.327(d) (Vernon 2000). Two § 11.085(v) (Vernon 2000). watermasters have been appointed. The Rio Grande Watermaster oversees the lower, middle and upper 10. Watermasters segments of the Rio Grande River. The South Texas In making the appropriation system more Watermaster oversees the Guadalupe River Basin, effective, the Texas Natural Resource Conservation San Antonio River Basin, Nueces River Basin, Commission “shall divide the state into water

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Nueces-Rio Grande Coastal Basin and Lavaca- proceedings authorized by [Section 11.174] of the Guadalupe River Basin. [Texas Water] [C]ode, then the permit, certified filing, or certificate of adjudication is subject to 11. Abandonment, Forfeiture or Cancellation cancellation in whole or part, as provided by of Permits, Certified Filings, and Certificates of [Sections 11.174 to 11.177; and 11.185 and 11.186] Adjudication of [the Texas Water] [C]ode to the extent of the 10 a. Abandonment and Forfeiture years nonuse.” See TEX. WATER CODE ANN. “If any lawful appropriation or use of state § 11.173(a) (Vernon 2000). water is willfully abandoned during any three “A permit, certified filing, or certificate of successive years, the right to use the water is adjudication or a portion of a permit, certified filing, forfeited and the water is again subject to or certificate of adjudication is exempt from appropriation.” See TEX. WATER CODE ANN. cancellation under [Section 11.173(a) of the Texas § 11.030 (Vernon 2000) Water Code] . . . to the extent of the owner’s Texas courts have held that the essential participation in the Conservation Reserve Program element of abandonment is intention to abandon. The authorized by the Food Security Act, Pub. L. No. 99- intention must be shown by clear and satisfactory 198, Secs. 1231-1236, 99 Stat. 1354, 1509-1514 evidence which may be circumstances disclosing (1985), or a similar government program; or . . . if some definite act showing intention to abandon. The any portion of the water authorized to be used non-use of a right is not sufficient of itself to show pursuant to a permit, certified filing, or certificate of abandonment unless the failure to do so is long adjudication has been used in accordance with a conditioned and unexplained giving rise to an regional water plan approved pursuant to Section intention to abandon. See City of Austin v. Arnett, 16.053 of the [Texas Water] [C]ode.” See TEX. 250 S.W.2d 450 (Tex. Civ. App.–Eastland 1952, WATER CODE ANN. § 11.173(b) (Vernon 2000). writ ref’d n.r.e.); City of Corpus Christi v. Nueces County Water Control and Improvement Dist. No. 12. Return Surplus Water 3, 540 S.W.2d 357 (Tex. Civ. App.–Corpus Christi “A person who takes or diverts water from a 1976, writ ref’d n.r.e.). watercourse or stream for the purposes authorized by “If a permitee fails to begin construction [of [the Texas Water] [C]ode shall conduct surplus the proposed diversion or storage facilities] within the water back to the watercourse or stream from which time specified in Section 11.145 of [the Texas Water] it was taken if the water can be returned by gravity [C]ode, he forfeits all rights of the permit, subject to flow and it is reasonably practicable to do so. In notice and hearing. . . .” See TEX. WATER CODE granting an application for a water right, the [Texas ANN. § 11.146(a) (Vernon 2000). Natural Resource Conservation] [C]ommission may include conditions in the water right providing for the b. Cancellation return of surplus water, in a specific amount or (1) General Principle percentage of water diverted, and the return point on “A permit, certified filing, or certificate of a watercourse or stream as necessary to protect adjudication is subject to cancellation in whole or in senior downstream permits, certified filings, or part for 10 years nonuse” as provided by Section certificates of adjudication or to provide flows for 11.173 to 11.177, 11.185 and 11.186 of the Texas instream uses or bay and estuaries. Except as Water Code. See TEX. WATER CODE ANN. § 11.172 specifically provided otherwise in the water right, (Vernon 2000). water appropriated under a permit, certified filing, or certificate of adjudication may, prior to its release (2) Cancellation in Whole or in Part into a watercourse or stream, be beneficially used and “Except as provided by [Section 11.173(b) reused by the holder of a permit, certified filing, or of the Texas Water Code], if all or part of the water certificate of adjudication for the purposes and authorized to be appropriated under a permit, locations of use provided in the permit, certified certified filing, or certificate of adjudication has not filing, or certificate of adjudication. Once water has been put to beneficial use at any time during the 10- been diverted under a permit, certified filing, or year period immediately preceding the cancellation certificate of adjudication and then returned to a

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watercourse or stream, however, it is considered water in a malicious way with the purpose of injuring surplus water and therefore subject to reservation for a neighboring landowner or have the pumping instream uses or beneficial inflows or to amount to wanton and willful waste of the water. appropriation by others unless expressly provided See City of Corpus Christi v. City of Pleasanton, otherwise in the permit, certified filing, or certificate 154 Tex. 289, 276 S.W.2d 798, 801 (1955). of adjudication. Water appropriated under a permit, Additionally, a landowner may be liable for damages certified filing, or certificate of adjudication which is resulting from the negligent pumping of percolating recirculated within a reservoir for cooling purposes water which causes the subsidence of a neighboring shall not be considered to be surplus for purposes of landowner’s land. See Friendswood Dev. Co. v. [Chapter 11 of the Texas Water Code]. See TEX. Smith Southwest Indus., Inc., 576 S.W.2d 21, 30 WATER CODE ANN. § 11.046 (Vernon 2000). (Tex. 1978). Furthermore, it has been held that 13. Water Banking/Texas Water Trust percolating water does not need to be used on or for “A water right or portion thereof may be the benefit of the surface estate “and can likewise be deposited in the [Texas Water] [B]ank for an initial sold for off-site use and outside the basin where term of up to 10 years, unless otherwise held in the produced” to any other party despite substantial loss Texas Water Trust. . ., during which time the water in transportation. See City of Corpus Christi v. City right or portion of the water right deposited is exempt of Pleasanton, 154 Tex. 289, 276 S.W.2d 798 from cancellation by the [Texas Natural Resource (1955). Conservation] [C]ommission under the terms of the Texas Water Code, Chapter 11, subchapter E, as 2. Artesian Water provided by Texas Water Code § 15.704. The water Principles applicable to percolating water are right or that portion of the water right deposited is generally applicable to artesian water. See City of exempt from cancellation under this subsection Corpus Christi v. City of Pleasanton, 154 Tex. 289, [§ 359.8] only once, even if it has been transferred or 276 S.W.2d 798 (1955). Note, however, that redeposited. The water right or that portion of the although a landowner can use as much artesian water water right which is on deposit remains on deposit as is necessary for his needs, there are statutory until it is withdrawn.” See 30 TEX. ADMIN. CODE provisions applicable to drilling artesian wells and § 359.8 (2000) and TEX. WATER CODE ANN. § prohibiting waste of artesian water. See TEX. 15.704 (Vernon 2000). WATER CODE ANN. §§ 11.205, 11.207 (Vernon “The Texas Water Trust is established 2000). within the water bank to hold water rights dedicated “Except as provided by [Section 11.202 of to environmental needs, including instream flows, the Texas Water Code], a person is entitled to drill an water quality, fish and wildlife habitat, or bay and artesian well for domestic purposes or for stock estuary inflows.” See TEX. WATER CODE raising without complying with the general provisions ANN.§ 15.7031 (Vernon 2000). of [the Texas Water Code] regulating the use of water. The artesian well must be on that person’s B. Right to Use Private Water own land and must be properly and securely cased. 1. Percolating Water When water is reached containing mineral or other Texas law provides that generally an owner substances injurious to vegetation or agriculture, the of land can pump unlimited quantities of percolating artesian well must be securely capped or its flow water located under his land even though that action controlled so as not to injure another person’s land or may either impact a neighboring landowner’s ability properly plugged so as to prevent the water from to obtain water on his own land, or impact any rising above the first impervious stratum below the neighboring surface water supplies. See Houston surface of the ground.” See TEX. WATER CODE and T.C. Ry. Co. v. East, 98 Tex. 146, 81 S.W. 279 ANN. §§ 11.202(a), 11.202(b), 11.202(c) (Vernon (1904) and Pecos County Water Control and 2000). Improvement Dist. No. 1 v. Williams, 271 S.W.2d The Texas Water Code was amended in 503 (Tex. Civ. App.–El Paso 1954, writ ref’d n.r.e.). 1991 to provide special protection for water in the A landowner cannot, however, pump percolating Edwards Aquifer. A major artesian well had been

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drilled. The amendment provides that after revised to state that these districts can be created to September 1, 1991 and before January 1, 1994, conserve, preserve, protect, recharge, and prevent unless an exemption is granted by the Texas Natural waste of groundwater (i.e., percolating water) and of Resource Conservation Commission, “a person may groundwater reservoirs or their subdivisions. not drill and operate a free-flowing artesian well in a Additionally, the groundwater districts may require sole or principal source aquifer as designated in 40 permits for drilling, equipping, or completing wells or C.F.R. Part 149, pursuant to Section 1424(e) of the for substantially altering the size of wells or well Safe Drinking Water Act [42 U.S.C. 300h-3(e)] that pumps. These districts may also provide for the will result in a flow of more than 5,000 gallons per spacing of water wells and may regulate production minute or that is within 1,000 feet of another well if of wells. See TEX. WATER CODE ANN. §§ 36.113, the combined flows would exceed 5,000 gallons per 36.115, 36.116 (Vernon 2000). In 1997, Senate Bill minute.” See TEX. WATER CODE ANN. § 11.202(d) No. 1 also provided for the addition of Section (Vernon 2000). 36.122 which governs the transfer of groundwater “Unless the water from an artesian well is out of the district. Once again this has had a used for a purpose and in a manner in which it may significant impact on underground water because the be lawfully used on the owner’s land, it is waste and district has discretion in denying or alternatively unlawful to willfully cause or knowingly permit the limiting a permit to transfer groundwater out of the water to run off the owner’s land or to percolate district. Therefore, if an owner’s groundwater is through the stratum above which the water is found.” located within a groundwater conservation district, See TEX. WATER CODE ANN. § 11.205 (Vernon the person obtaining the groundwater and desiring to 2000). transfer the groundwater out of the district must obtain a permit from the district to transfer the 3. Regulation of Underground Water groundwater out of the district. See TEX. WATER At the present time, there is no state-wide CODE ANN. § 36.122 (Vernon 2000). regulation of underground water. One final point of interest with respect to groundwater districts involves the boundaries of the a. Groundwater in Groundwater Districts district. Section 36.012 of the Texas Water Code There are, however, provisions which can provides that the boundaries of a district must be provide some protection for groundwater, i.e., coterminous with or inside the boundaries of a percolating water, and of groundwater reservoirs or management area or a priority groundwater their subdivisions. Under Chapter 36 of the Texas management area. See TEX. WATER CODE ANN. Water Code, groundwater conservation districts may § 36.012(c) (Vernon 2000). be created for the “conservation, preservation, A management area is defined as “an area protection, recharging, and prevention of waste of designated and delineated by the [Texas Natural groundwater, and of groundwater reservoirs or their Resource Conservation] [C]ommission as an area subdivisions, and to control subsidence caused by suitable for management of groundwater resources”. withdrawal of water from these groundwater See TEX. WATER CODE ANN. § 35.002(11) (Vernon reservoirs or their subdivisions consistent with the 2000). A priority groundwater management area is objectives of Section 59, Article XVI [of the] Texas defined as “an area designated and delineated by the Constitution. . . .” See TEX. WATER CODE ANN. [C]ommission as an area that is experiencing or is § 36.0015 (Vernon 2000). In 1997, the impact of the expected to experience critical groundwater adoption of Senate Bill No. 1 (i.e., Section 36.0015) problems”. See TEX. WATER CODE ANN. is significant to underground water because an § 35.002(12) (Vernon 2000). The designation of underground water district could previously be both groundwater management areas and priority created to conserve, preserve, protect, recharge, and groundwater management areas is governed by prevent waste of only underground water of Chapter 35 of the Texas Water Code. See TEX. underground water reservoirs or their subdivisions. WATER CODE ANN. § 35.001 et seq. (Vernon 2000). Arguably, this phraseology did not include percolating water based on case law defining b. Groundwater in the Edwards Aquifer percolating water. Now the language has been Region

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In 1994, the Legislature adopted Senate Bill The Edwards Aquifer Authority is charged No. 1477, finding “that the Edwards Aquifer is a with managing withdrawals of water from the unique and complex hydrological system, with aquifer. The Act further provides that a person may diverse economic and social interests dependent on not withdraw water from the aquifer or begin the aquifer for water supply. In keeping with that construction of a well or other works designed for the finding, the Edward Aquifer is declared to be a withdrawal of water from the aquifer without distinctive natural resource in this state, a unique obtaining a permit from the Edward Aquifer aquifer and not an underground stream. To sustain Authority. Consequently, the Edwards Aquifer these diverse interests and that natural resource, a Authority may issue a regular permit, term permits, special regional management district is required for and emergency permits, with each permit specifying the effective control of the resource to protect the maximum rate and total volume of water that the terrestrial and aquatic life, domestic and municipal water user may withdraw in a calendar year. See water supplies, the operation of existing industries, Tex. S.B. 1477, Ch. 626, § 1.15, 73rd Leg., R.S. and the economic development of the state. The use (1994). The two exceptions of this general rule of water in the district for beneficial purposes provide that (i) a person who owns a producing well requires that all reasonable measure be taken to be that withdraws water from the Aquifer may continue conservative in water use.” See Tex. S.B. 1477, Ch. to withdraw and beneficially use water without waste 626, § 1.01, 73rd Leg., R.S. (1994). until final action on the permits by the Edwards “A conservation and reclamation district, to Aquifer Authority, subject to certain conditions; and be known as the Edwards Aquifer Authority, is (ii) a well that produces 25,000 gallons a day or less created in all or part of Atascosa, Bexar, Caldwell, for domestic and livestock use is exempt from Comal, Guadalupe, Hayes, Medina, and Uvalde metering requirements. It should be noted that a well counties. The Edwards Aquifer Authority is a within or serving a subdivision requiring platting governmental agency and a body politic and does not qualify for an exempt use. See Tex. S.B. corporate.” See Tex. S.B. 1477, Ch. 626, § 1.02, 1477, Ch. 626 §§ 1.17, 1.33, 73rd Leg. R.S. (1994). 73rd Leg., R.S. (1994). The Edwards Aquifer Authority is required to limit Senate Bill No. 1477, otherwise known as the permitted withdrawals of water from the aquifer the Edwards Authority Act, very clearly states that for the period ending December 31, 2007, at 450,000 “the ownership and rights of the owner of the land acre-feet of water for each calendar year. Beginning and the owner’s lessees and assigns, including January 1, 2008, the amount of permitted withdrawal holders of recorded liens or other security interests in from the aquifer may not exceed 400,000 acre-feet of the land, in underground water and the contract rights water for each calendar year. See Tex. S.B. 1477, of any person who purchases water for the provision Ch. 626, §§ 1.14, 1.21, 73rd Leg., R.S. (1994). of potable water to the public or for the resale of Therefore, all surface owners in the counties which potable water to the public for any use are make up the Edwards Aquifer region and who have recognized. [The Act further states that] action taken underground water available to them, by this time pursuant to this Act may not be construed as should have already applied to the Edwards Aquifer depriving or divesting the owner or the owner’s Authority for enumeration of the amount of water lessees and assigns, including holders of recorded rights, based on historical use, and should either have liens or other security interests in the land, of these a proposed initial regular permit ("PIRP”) or a ownership rights or as impairing the contract rights permanent permit specifying the exact amount of of any person who purchases water for the provision water rights that will be appurtenant to their real of potable water to the public or for the resale of property. potable water to the public for any use, subject to the rules adopted by the [Edwards Aquifer] [A]uthority 4. Surface Water or a district exercising the powers provided by The only privately owned surface water is Chapter 52 [now Chapter 36] of the [Texas Water] diffused surface water. Diffused surface water is [C]ode. See Tex. S.B. 1477, Ch. 626, § 1.07, 73rd water which lies on the surface of the land and has Leg., R.S. (1994). not reached or entered a natural body of water or watercourse. Diffused surface water includes surface

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drainage water which originates from rainfall or (1863); Mud Creek Irr. Agr. & Manufg. Co. v. melting snow. It also includes the outflow of springs Vivian, 74 Tex. 170, 11 S.W. 1078 (1889). which has not been collected in a watercourse. See Sun Underwriter’s Ins. Co. of New York v. Bunkley, D. Eminent Domain 233 S.W.2d 153, 155 (Tex. Civ. App.–Fort Worth “The right to take water necessary for 1950, writ ref’d n.r.e.). The rule of reasonable use domestic and municipal supply purposes is primary applicable to percolating groundwater presumably and fundamental, and the right to recover from other applies to diffused surface water. It should be noted uses water which is essential to domestic and that no person may divert or impound surface waters municipal supply purposes is paramount and in a manner that damages the property of another. unquestioned in the policy of the state. All political Injured persons have remedies at law and in equity subdivisions of the state and constitutional and may recover damages occasioned by the governmental agencies exercising delegated overflow. See TEX. WATER CODE ANN. § 11.086(b) legislative powers have the power of eminent domain (Vernon 2000). to be exercised as provided by law for domestic, municipal, and manufacturing uses and for other C. Prescriptive Water Rights purposes authorized by [the Texas Water] [C]ode, Adverse use of water, to open into a including the irrigation of land for all requirements of prescriptive right, must have been commenced and agricultural employment. See TEX. WATER CODE continued under a claim of right inconsistent with and ANN. § 11.033 (Vernon 2000). hostile to the claim of another. Such adverse assertion of a right to divert and use water must not E. Conservation Plans only be a claim of right, but a claim of exclusive Section 5.120 of the Texas Water Code ownership. Moreover, such prescriptive right requires the Texas Natural Resource Conservation involves hostility to the rights of a rightful owner and Commission to “administer the law so as to promote results in injury and detriment to the owner whose the judicious use and maximum conservation and right is prescribed. Although prescription does not protection of the quality of the environment and the begin to run in favor of a riparian owner diverting natural resources of the state”. See TEX. WATER water to the detriment of the lower owner until the CODE ANN. § 5.120 (Vernon 2000). Pursuant to that party against whom the prescriptive right is claimed mandate, the Commission has promulgated has notice, constructive notice has the same effect as regulations requiring comprehensive water actual notice. The use of water from a stream conservation plans to be submitted with an whenever the user needs it from time to time will application for any new or additional appropriation support a prescriptive right to divert the water, and of water. The rules provide requirements and the continuity of the use is not broken because of the guidelines for water conservation plans for municipal omission to use the water when not needed by the and public water supply use, industrial and mining user. The prescriptive period is ten years after use, irrigation use and wholesale suppliers. See 30 accrual of the cause of action unless the owner of the TEX. ADMIN. CODE §§ 288.1, 288.7 (2000). right sought to be acquired by prescription should have a disability. See Martin v. Burr, 111 Tex. 57, F. Endangered Species Act 228 S.W. 543 (Supp. 1921). The prescriptive water Established and recognized surface water right “must be such an invasion of a right as to give law and rights that are lawful may be curtailed, rise to a cause of action.” Prescription of water right modified, restricted, or eliminated through the to use water in river does not run upstream. See City consultation process or the direct application of the of Corpus Christi v. Nueces County Water Control Endangered Species Act “take” prohibitions. 16 and Improvement Dist. No. 3, 540 S.W.2d 357, 375 U.S.C.A. §§ 1538(a)(1), 1639(a) (West 2000). (Tex. Civ. App.–Corpus Christi 1976, writ ref’d n.r.e.). Riparian water rights can be lost or acquired IV. TRANSFER OF TITLE TO WATER by prescription. See Haas v. Choussard, 17 Tex. AND RIGHTS TO WATER 588 (1856); Rhodes v. Whitehead, 27 Tex. 304 A. Private Water

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The title to private water rights will pass and canals. See 30 TEX. ADMIN. CODE § 297.81(b) automatically with title to the land unless such water (2000). rights are previously sold or conveyed to some other third party, or specifically reserved by the grantor. 3. Right to Water from Canals, Ditches or See Texas Co. v. Burkett, 117 Tex. 16, 296 S.W. Other Works 273, 276, 278 (1927); City of Altus v. Carr, 255 F. The right to use water from canals, ditches, Supp. 828 (W.D. Tex.), aff’d per curiam 385 U.S. or other works, defined as permanent water rights in 35 (1966). Section 11.038 of the Texas Water Code, is considered an easement and passes with title to the B. State Water land. See TEX. WATER CODE ANN. § 11.040(a) 1. Riparian Rights (Vernon 2000). The title to any riparian water rights for the purpose of livestock or domestic uses, together with 4. Evidencing a Change in the Ownership of any unadjudicated riparian rights pending Water Rights adjudication, pass with title to the land unless The owners of water rights are to inform the previously sold or specifically reserved by the executive director of the Texas Natural Resource grantor. See Bigham Bros. v. Port Arthur Canal & Conversation Commission of any transfer of water Dock Co., 91 S.W. 848, 853 (Tex. Civ. App.– rights. Any written instruments evidencing a transfer 1905), rev’d on other grounds, 100 Tex. 192, 97 of water rights are to be recorded with the county S.W. 686 (1906, no writ). clerk of the county where the rights are located with a copy of the recorded instrument filed with the 2. Appropriation Rights executive director of the Texas Natural Resource The title to appropriation water rights that Conversation Commission. See 30 TEX. ADMIN. are appurtenant to land, whether riparian rights CODE §§ 297.81, 297.83 (2000). evidenced by permits, certified filings, or certificates of adjudication, pass with title to the land unless a. Mineral Rights v. Water Rights assigned or specifically reserved by the Grantor. The It has been held that water is deemed to be title to appropriation water rights, whether evidenced part of the surface estate unless severed by by permit, certified filing, or certificate of conveyance or reservation. Thus, the conveyance of adjudication, and that are not appurtenant to land a mineral estate would not include water rights. See may also be sold or assigned. See Clark v. Briscoe Sun Oil Co. v. Whitaker, 483 S.W.2d 808, 811 (Tex. Irr. Co., 200 S.W.2d 674, 679 (Tex. Civ. 1972); Robinson v. Robbins Petroleum Corp., 501 App.–Austin 1947, writ dism’d); 30 TEX. ADMIN. S.W. 2d 865, 867 (Tex. 1973); Fleming Found. v. CODE § 297.81(a), (d) (2000). In any event, Texaco, Inc., 337 S.W.2d 846, 852 (Tex. Civ. appropriation water rights, whether or not App.–Amarillo 1960, writ ref’d n.r.e.). appurtenant to land, will have to be amended It has also been held that an oil and gas lease pursuant to Section 11.122(a) of the Texas Water has an implied right to use any water rights attaching Code if the owner plans to change the place of use, to the surface estate. See Sun Oil Co. v. Whitaker, purpose of use, point of diversion or rate of 482 S.W.2d 808, 810-11 (Tex. 1972). It is arguable diversion. See 30 TEX. ADMIN. CODE §§ 297.81, under Section 11.121 of the Texas Water Code that 295.71, 295.158 (2000). these water rights do not include surface water rights. a. Exception to the Rule Appropriation water rights do not attach to V. WATER SUPPLY CONTRACTS the irrigated land held by a water district, water corporation, river authority or other governmental A. Authority to Sell Water entity authorized to supply water to others. These “A person, association of persons, water rights can only be transferred by express corporation, or water improvement or irrigation written conveyance. This exception is subject to all district having in possession and control of any storm laws relating to lawful rights of owners along ditches water, floodwater, or rainwater that is conserved or

26 Water Rights Outline and Checklist Chapter 9

stored as authorized by [Chapter 11 of the Texas The Texas Natural Resource Conservation Water Code] may contract to supply the water to any Commission presently requires that each water person, association of persons, corporation, or water supplier described above file an application for an improvement or irrigation district having the right to amendment based upon the supplier’s contractual acquire use of the water.” See TEX. WATER CODE arrangements with a water purchaser and/or submit ANN. § 11.036(a) (Vernon 2000). a copy of the contract itself. See 30 TEX. ADMIN. CODE §§ 297.101(a), 295.101 (2000). B. Conserved or Stored Water; Supply The following sales or deliveries of water are Contract exempt from the requirement of a contract “The price and terms of the contract shall be amendment: just and reasonable and without discrimination, and the contract is subject to the same revision and 1. Sales of untreated water conveyed control as provided in [the Texas Water] [C]ode for by the supplier through a canal, pipeline or aqueduct other water rates and charges. If the contract set for the purpose and for use in the area authorized in forth explicit expiration provisions, no continuation the water right; of the service obligation will be implied.” See TEX. 2. Sales of treated water supplied WATER CODE ANN. § 11.036(b) (Vernon 2000). through a public or private municipal distribution “The terms of a contract may expressly system or through a rural water supply system for the provide that the person using the stored or conserved purpose and for use in the area authorized in the water is required to develop alternative or water right; replacement supplies prior to the expiration of the 3. Deliveries of treated sewage effluent contract and may further provide for enforcement of for the purpose and use authorized and in the area such terms by court order." See TEX. WATER CODE authorized in the water right; ANN. § 11.036(c) (Vernon 2000). 4. Short term (three years or less) sales “If any person uses the stored or conserved of untreated water from the perimeter of a reservoir water without first entering into a contract with the for any purpose authorized in the water right in party that conserved or stored it, the user shall pay amounts not exceeding 10 acre-feet per annum; or for the use at a rate determined by the [Texas Water] 5. Sales of untreated water from the [C]ommission to be just and reasonable, subject to Lower and Middle Rio Grande. See 30 TEX. ADMIN. court review as in other cases.” See TEX. WATER CODE § 297.101(b) (2000). CODE ANN. § 11.036(d) (Vernon 2000). Even if the water sales are exempt, the water C. Contractual Sales of Water Along Middle supplier will have to file a contract amendment and Lower Rio Grande application if the supplier’s appropriation right which “Verified owners of water rights in the forms the basis for the sale requires amendment. Middle and Lower Rio Grande [River] with the right (e.g., if the appropriation right is for irrigation use, to call on releases from the Amistad-Falcon system but the purchaser requires a municipal or domestic may contract for the sale of all or part of their use). See 30 TEX. ADMIN. CODE §§ 297.102(a), annualized authorized amount of use to other water 295.101 (2000). rights holders or their agents in the Middle and A water supplier is only required to file a Lower Rio Grande, as long as all of the contractual copy of the contract if an amendment of the sales rules are complied with. The resale of water is appropriation right is not necessary or if required, it prohibited. The use of contract sale water by buyers is in the nature of an increase in the number of will not go to the perfection of Seller’s appropriative diversion points or a change in the place of use of an right. All existing contracts shall be filed with the appropriation water right for storage. See 30 TEX. executive director [of the Texas Natural Resource ADMIN. CODE § 297.102(b) (2000). Conservation Commission] . . . See 30 TEX. ADMIN. The Texas Natural Resource Conservation CODE §§ 303.51 – 303.55 (2000). Commission has promulgated specific rules for a water supplier that is not the holder of an D. Requirements of Supplier

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appropriation right for water. See 30 TEX. ADMIN. “The penalty may be in an amount not to CODE § 297.102(c) (2000). exceed $5,000 for each day the person is in violation of [C]hapter [11 of the Texas Water Code], the rule VI. UNLAWFUL USE, DIVERSION AND or order adopted under [C]hapter [11 of the Texas WASTE Water Code], or the permit, certified filing, or certificate of adjudication issued under [C]hapter [11 A. Unlawful Use of State Water of the Texas Water Code]. The penalty may be in an “No person may wilfully take, divert, or amount not to exceed $1,000 for each day the person appropriate any state water for any purpose without is in violation of the rule or order adopted under first complying with all applicable requirements of Section 16.236 of [the Texas Water] [C]ode. Each [Chapter 11 of the Texas Water Code].” See TEX. day a violation continues may be considered a WATER CODE ANN. § 11.081 (Vernon 2000). separate violation for purposes of penalty assessment. See TEX. WATER CODE ANN. B. Civil Penalty § 11.0842(b) (Vernon 2000). “A person who wilfully takes, diverts, or appropriates state water without complying with the E. Violation Relating to Unlawful Use of applicable requirements of [Chapter 11 of the Texas State Water Water Code] is also liable to a civil penalty of not A person commit an offense if he engages in more than $5,000 for each day he continues the the wasteful use of water (Sections 11.092 and taking, diversion, or appropriation. The state may 11.093) and/or wasting water from an artesian well recover the penalties prescribed in Subsection (a) of (Section 11.205). An offense under these sections of [Section 11.082 of the Texas Water Code] by suit the Texas Water Code is punishable by a fine of not brought for that purpose in a court of competent more than $1,000, confinement for a period not to jurisdiction. An action to collect the penalty provided exceed 90 days, or both a fine and confinement. See in [Section 11.082 of the Texas Water Code] must be TEX. WATER CODE ANN. §§ 7.142(a), 7.142(b), brought within two years from the date of the alleged 7.187(1)(A), 7.187(2)(B) (Vernon 2000). violation.” See TEX. WATER CODE ANN. A person commits an offense if he engages in §§ 11.082(a), 11.082(b), 11.082(c) (Vernon 2000). the unlawful use of state water (Section 11.081), any other unlawful taking of water (Section 11.083), the unlawful diversion of water on an international C. Other Unlawful Taking stream (Section 11.087), pollution or littering “No person may wilfully open, close, change, (Section 11.090), and/or in the interference with the or interfere with any headgate or water box without delivery of water under contract (Section 11.091). lawful authority. No person may willfully use water An offense under these sections of the Texas Water or conduct water through his ditch or upon his land Code is punishable by a fine of not more than unless he is entitled to do so.” See TEX. WATER $1,000, confinement for a period not to exceed 180 CODE ANN. §§ 11.083(a), 11.083(b) (Vernon 2000). days, or both a fine and confinement. See TEX. WATER CODE ANN.§§ 7.142(a), 7.142(c), 7.187(1)(A), 7.187(2)(C) (Vernon 2000). D. Administrative Penalty A person commits an offense if he engages in “If a person violates [C]hapter [11 of the the sale of a permanent water right without a permit Texas Water Code], a rule or order adopted under (Section 11.084) and/or use of any waterworks or [C]hapter [11 of the Texas Water Code], or a permit, irrigation system that has been declared a public certified filing, or certificate of adjudication issued nuisance (Section 11.094). An offense under these under [C]hapter [11 of the Texas Water Code], the sections of the Texas Water Code is punishable by a [Texas Natural Resource Conservation] fine of not more than $1,000, confinement for a [C]ommission may assess an administrative penalty period not to exceed one year, or both a fine and against that person as provided by [S]ection [11.0842 confinement. See TEX. WATER CODE ANN. of the Texas Water Code].” See TEX. WATER CODE §§ 7.142(a), 7.142(d), 7.187(1)(A), 7.187(2)(D) ANN. § 11.0842(a) (Vernon 2000). (Vernon 2000).

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A person commits an offense if he engages in the destruction of waterworks (Section 11.088). An offense under this section of the Texas Water Code is punishable by a fine of not more than $1,000, confinement for a period not to exceed two years, or both a fine and confinement. See TEX. WATER CODE ANN. §§ 7.142(a), 7.142(e), 7.187(1)(A), 7.187(2)(E) (Vernon 2000). “Possession of state water when the right to its use has not been acquired according to Chapter 11 [of the Texas Water Code] is prima facie evidence of a violation of Section 11.081 [of the Texas Water Code – Unlawful Use of State Water].” See TEX. WATER CODE ANN. § 7.142(f) (Vernon 2000). “Possession or use of water on a person’s land by a person not entitled to the water under [the Texas[ [C]ode is prima facie evidence of a violation of Section 11.083 [of the Texas Water Code – Other Unlawful Taking]”. See TEX. WATER CODE ANN. § 7.142(g) (Vernon 2000).

F. Dam Safety The Texas Water Code provides for certain penalties for failure to abide by the Texas Natural Resource ‘Conservation Commission’s rules and orders regarding dam safety. See TEX. WATER CODE ANN. § 12.052 (Vernon 2000).

G. Interbasin Transfers “A person who takes or diverts water in violation of th[e] section [on interbasin transfers] is guilty of a misdemeanor and upon conviction is punishable by a fine of not more than $1,000 or by confinement in the county jail for not more than six months.” See TEX. WATER CODE ANN. § 11.085(q) (Vernon 2000). “A person commits a separate offense each day he continues to take or divert water in violation of [S]ection [11.085 of the Texas Water Code].” See TEX. WATER CODE ANN. § 11.085(r) (Vernon 2000).

WATER RIGHTS CHECKLIST

I. UNDERGROUND WATER 2. Form of evidence of water right A. Percolating Water Generally, no certificates of adjudication or 1. Ownership based on rule of capture; therefore, permits needed privately owned (276 S.W.2d 798; 643 S.W.2d 681) b. Exception

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(1) If the percolating water comes out 6. Point of diversion specified of the Edwards Aquifer, you will need a water Generally, no withdrawal permit. (Tex. S.B. 1477 § 1.15). a. Exceptions (1) If the percolating water comes out 3. Water Rights Quantified of the Edwards Aquifer, you will need a water Generally, no withdrawal permit which may specify the location of a. Exceptions the water well. (Tex. S.B. 1477 § 1.15). (1) If the percolating water comes out (2) If the percolating water is located of the Edwards Aquifer, you will need a water under land that is located within a groundwater withdrawal permit which must specify the total district, subject to certain exemptions, exceptions and volume of water withdrawal (i.e., expressed in acre limitations, you will need a permit to drill, equip and feet) (Tex. S.B. 1477, § 1.15). complete a water well and the permit may include the (2) If the percolating water is located location of the water well. (TEX. WATER CODE ANN. under land that is located within a groundwater §§ 36.113, 36.1131). district, subject to certain exemptions, exceptions and limitations, you will need a permit to drill, equip, and 7. Rate of diversion specified complete a water well and the permit may include the Generally, no conditions and restrictions, if any, placed on the a. Exceptions amount of withdrawal. (TEX. WATER CODE ANN. (1) If the percolating water comes out §§ 36.113, 36.1131). of the Edwards Aquifer, you will need a water withdrawal permit which must specify the maximum 4. Place of use specified rate of water withdrawal. (Tex. S.B. 1477 § 1.15). Generally, no (2) If the percolating water is located a. Exceptions under land that is located within a groundwater (1) If the percolating water comes out district, subject to certain exemptions, exceptions and of the Edwards Aquifer, you will need a water limitations, you will need a permit to drill, equip and withdrawal permit which may specify the place of complete a water well and the permit may include the use. (Tex. S.B. 1477, § 1.15). conditions and restrictions, if any, placed on the rate (2) If the percolating water is located of withdrawal. (TEX. WATER CODE ANN. under land that is located within a groundwater §§ 36.113, 36.1131). district, subject to certain exemptions, exceptions and limitations, you will need a permit to drill, equip and 8. Acres Irrigated specified complete a water well and the permit may include the Generally, no location of the use of the water from the water well. a. Exceptions (TEX. WATER CODE ANN. §§ 36.113, 36.1131). (1) If the percolating water comes out of the Edwards Aquifer, you will need a water 5. Purpose of use specified withdrawal permit which may specify the place of Generally, no use. (Tex. S.B. 1477 § 1.15). a. Exceptions (2) If the percolating water is located (1) If the percolating water comes out under land that is located within a groundwater of the Edwards Aquifer, you will need a water district, subject to certain exemptions, exceptions and withdrawal permit which may specify the purpose of limitations, you will need a permit to drill, equip and use. (Tex. S.B. 1477 § 1.15). complete a water well and the permit may include the (2) If the percolating water is located location of the use of the water from the water well. under land that is located within a groundwater (TEX. WATER CODE ANN. §§ 36.113, 36.1131). district, subject to certain exemptions, exceptions and limitations, you will need a permit to drill, equip and 9. Water Well authorization for drilling, equipping complete a water well and the permit may include the and completing the water well purpose for which the water well is to be used. (TEX. Generally, no WATER CODE ANN. §§ 36.113, 36.1131). a. Exceptions

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(1) If the percolating water comes out surface estate and can likewise be leased for off-site of the Edwards Aquifer, you will need a permit to use and outside the basin where produced. drill, equip and complete the water well. (Tex. S.B. (3) Exception 1477 § 1.15). (a) If the percolating water is (2) If the percolating water is located located under land that is located within a under land that is located within a groundwater groundwater district, you will need a permit to district, subject to certain exemptions, exceptions and transfer groundwater (i.e., by lease) out of the limitations, you will need a permit to drill, equip and district. (TEX. WATER CODE ANN. § 36.122) complete the water well. (TEX. WATER CODE ANN. c. Transfer of Edwards Aquifer groundwater §§ 36.113, 36.1131). permitted rights (1) If the percolating water comes out 10. Limits on Use of the Edwards Aquifer, the following rules apply: a. Cannot pump percolating water in a (a) Edward Aquifer Authority malicious way with the purpose of injuring a (“EAA”) term, emergency, and monitoring well neighboring landowner. (276 S.W.2d 798) permits, and exempt well status, are not transferable, b. Cannot have the pumping amount to except for ownership. (TEX. ADMIN. CODE ANN. wanton and willful waste of the water. (276 S.W.2d §711.324(a)). 798) (b) Place of use for a permit or c. Landowner may be liable to damages interim authorization status may not be transferred resulting from the negligent pumping of percolating outside the EAA’s boundaries. (Tex. S.B. 1477 § water which causes subsidence of a neighboring 1.34; TEX. ADMIN. CODE ANN. § 711.324(b)). landowner’s land. (576 S.W.2d 21) (c) Except as provided in Section d. If the percolating water comes out of the 711.338, place and purpose of use for all or part of Edwards Aquifer, cannot pollute or contribute to the the “base irrigation groundwater” component of a pollution of the Aquifer. (Tex. S.B. 1477, § 1.35). permit or interim authorization status (i.e., the 50 11. Transfer of Water Rights percent portion of an irrigation permit or interim a. Sale of Percolating Water Rights. authorization status which is tied to the land) is not (1) Title to percolating water rights will transferable. (Tex. S.B. 1477 § 1.34; TEX. ADMIN. pass automatically with title to the land unless such CODE ANN. § 711.324(c)). water rights are previously sold or conveyed to some other third party, or specifically reserved by the (d) Except as provided in Section grantor. (296 S.W. 273) 711.338(c) & (e), ownership of a regular permit may (2) Note that percolating water does be transferred separately from ownership of the place not need to be used on or for the benefit of the of use or point of withdrawal. (TEX. ADMIN. CODE surface estate and can likewise be sold for off-site ANN. § 711.328(a)). use and outside the basin where produced. (276 (e) Transfer of ownership of the S.W.2d 798) place of use or point of withdrawal is presumed to (3) Exception transfer ownership of the regular permit, unless an (a) If the percolating water is express reservation of rights is made by the located under land that is located within a transferor. (TEX. ADMIN. CODE ANN. § 711.328(b)). groundwater district, you will need a permit to (f) Ownership of all or a part of transfer groundwater (i.e., by sale) out of the district. an initial regular permit issued for “base irrigation (TEX. WATER CODE ANN. § 36.122). groundwater” shall pass with transfer of ownership b. Lease of Percolating Water Rights of irrigated lands owned by holder of initial regular (1) Percolating water rights can be permit and identified as the place of use in such leased unless such water rights are previously leased permit. (TEX. ADMIN. CODE ANN. § 711.328(c)). to some other third party. (g) Ownership of all or a part of (2) Note that percolating water does an initial regular permit issued for “base irrigation not need to be used on or for the benefit of the groundwater” may not be reserved to the transferor. (TEX. ADMIN. CODE ANN. § 711.328(e)).

31 Chapter 9 Water Rights Outline and Checklist

(h) Ownership of all or a part of transfer and amend. (TEX. ADMIN. CODE ANN. the initial regular permit issued for “unrestricted § 711.358). irrigation groundwater” need not necessarily pass with the transfer of ownership of the place of use or 12. Records/Reports point of withdrawal and may be reserved to the a. Exception transferor. (TEX. ADMIN. CODE ANN. § 711.328)(d). (1) If the percolating water comes out (i) Regular permittees may of the Edwards Aquifer, each permit holder shall file transfer non-irrigation permits within the EAA an annual report before March 1 reporting water use boundaries without restrictions as to the place or for preceding calendar year. (Tex. S.B. 1477 § purpose of use. (TEX. ADMIN. CODE ANN. 1.32). § 711.334). (j) Regular permittees may 13. Miscellaneous transfer unrestricted irrigation groundwater within a. Rights subject to condemnation by the EAA boundaries without restrictions as to the political subdivisions. (TEX. WATER CODE ANN. place or purpose of use. (TEX. ADMIN. CODE ANN. § 11.033). § 711.336). (k) Except for temporary B. Artesian Water (treated the same as transfers, place or purpose of use for all or a part of percolating water) an initial regular permit issued for base irrigation 1. Ownership-based on rule of capture; therefore, groundwater is not transferable. (TEX. ADMIN. privately owned. (276 S.W.2d 798, 642 S.W.2d CODE ANN. § 711.338). 681). (l) EAA must be given notice within 30 days of the transfer of a regular permit or 2. Form of evidence of water right regular permit application (TEX. ADMIN. CODE ANN. Generally, no certificates of adjudication or § 711.348). No transfer is generally effective until permits needed the EAA has issued a final order granting the a. Exception application to transfer and amend. (TEX. ADMIN. (1) If the artesian water comes out of CODE ANN. § 711.350). the Edwards Aquifer, you will need a water withdrawal permit. (Tex. S.B. 1477 § 1.15). (m) If the percolating water comes out of the Edwards Aquifer, a holder of a 3. Water Rights Quantified permit for irrigation use may not lease more than 50 Generally, no percent of the irrigation rights initially permitted. a. Exceptions The user’s remaining irrigation water rights must be (1) If the artesian water comes out of used in accordance with the original permit and must the Edwards Aquifer, you will need a water pass with transfer of the irrigated land. (Tex. S.B. withdrawal permit which must specify the total 1744 § 1.34). volume of water withdrawal (i.e., expressed in acre (n) The transferee is required, feet) (Tex. S.B. 1477 § 1.15). within 30 days, to file a record of the notice of (2) If the artesian water is located transfer or the final order and amended regular under land that is located within a groundwater permit in the deed records of: (a) the counties in district, subject to certain exemptions, exceptions and which the point of withdrawal and place of use are limitations, you will need a permit to drill, equip and identified in the regular permit or permit application, complete a water well and the permit may include the and (b) the counties to which the point of withdrawal conditions and restrictions, if any, placed on the and place of use are transferred. (TEX. ADMIN. amount of withdrawal. (TEX. WATER CODE ANN. CODE ANN. § 711.356). §§ 36.113, 36.1131). (o) No transfers are effective until a notice has been filed with the EAA or the 4. Place of use specified EAA has issued an order granting an application to Generally, no a. Exceptions

32 Water Rights Outline and Checklist Chapter 9

(1) If the artesian water comes out of (2) If the artesian water is located the Edwards Aquifer, you will need a water under land that is located within a groundwater withdrawal permit which may specify the place of district, subject to certain exemptions, exceptions and use. (Tex. S.B. 1477 § 1.15). limitations, you will need a permit to drill, equip and (2) If the artesian water is located complete a water well and the permit may include the under land that is located within a groundwater conditions and restrictions, if any, placed on the rate district, subject to certain exemptions, exceptions and of withdrawal. (TEX. WATER CODE ANN. limitations, you will need a permit to drill, equip and §§ 36.113, 36.1131). complete a water well and the permit may include the location of the use of the water from the water well. 8. Acres Irrigated specified (TEX. WATER CODE ANN. §§ 36.113, 36.1131). Generally, no a. Exceptions 5. Purpose of use specified (1) If the artesian water comes out of Generally, no the Edwards Aquifer, you will need a water a. Exceptions withdrawal permit which may specify the place of (1) If the artesian water comes out of use. (Tex. S.B. 1477 § 1.15). the Edwards Aquifer, you will need a water (2) If the artesian water is located withdrawal permit which may specify the purpose of under land that is located within a groundwater use. (Tex. S.B. 1477 § 1.15). district, subject to certain exemptions, exceptions and (2) If the artesian water is located limitations, you will need a permit to drill, equip and under land that is located within a groundwater complete a water well and the permit may include the district, subject to certain exemptions, exceptions and location of the use of the water from the water well. limitations, you will need a permit to drill, equip and (TEX. WATER CODE ANN. §§ 36.113, 36.1131). complete a water well and the permit may include the purpose for which the water well is to be used. (TEX. 9. Water Well authorization for drilling, equipping WATER CODE ANN. §§ 36.113, 36.1131). and completing the water well Generally, no 6. Point of diversion specified a. Exceptions Generally, no (1) If the artesian water comes out of a. Exceptions the Edwards Aquifer, you will need a permit to drill, (1) If the artesian water comes out of equip and complete the water well. (Tex. S.B. 1477 the Edwards Aquifer, you will need a water § 1.15). withdrawal permit which may specify the location of (a) Note - a person may not drill the water well. (Tex. S.B. 1477 § 1.15). and operate a free-flowing artesian well in a sole or (2) If the artesian water is located principal source aquifer after September 1, 1991, and under land that is located within a groundwater before January 1, 1994 that will result in a flow of district, subject to certain exemptions, exceptions and more than 5,000 gallons per minute or that is within limitations, you will need a permit to drill, equip and 1,000 feet of another well if the combined flows complete a water well and the permit may include the would exceed 5,000 gallons per minute unless location of the water well. (TEX. WATER CODE granted an exemption by the Texas Natural Resource ANN. §§ 36.113, 36.1131). Conservation Commission for any beneficial use that does not waste water. (TEX. WATER CODE ANN. 7. Rate of diversion specified § 11.202(d). Generally, no (2) If the artesian water is located a. Exceptions under land that is located within a groundwater (1) If the artesian water comes out of district, subject to certain exemptions, exceptions and the Edwards Aquifer, you will need a water limitations, you will need a permit to drill, equip and withdrawal permit which must specify the maximum complete the water well. (TEX. WATER CODE ANN. rate of water withdrawal. (Tex. S.B. 1477 § 1.15). §§ 36.113, 36.1131).

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10. Limits on Use (a) Edward Aquifer Authority a. Unless the water from an artesian well is (“EAA”) term, emergency, and monitoring well used for a purpose and in a manner in which it may permits, and exempt well status, are not transferable, be lawfully used on the owner’s land, it is waste and except for ownership. (TEX. ADMIN. CODE ANN. unlawful to wilfully cause or knowingly permit the §711.324(a)). water to run off the owner’s land or to percolate (b) Place of use for a permit or through the stratum above which the water is found. interim authorization status may not be transferred (TEX. WATER CODE ANN. § 11.205). outside the EAA’s boundaries. (Tex. S.B. 1477 § b. If the artesian water comes out of the 1.34; TEX. ADMIN. CODE ANN. § 711.324(b)). Edwards Aquifer, cannot pollute or contribute to the (c) Except as provided in Section pollution of the Aquifer. (Tex. S.B. 1477 § 1.15). 711.338, place and purpose of use for all or part of the “base irrigation groundwater” component of a 11. Transfer of Water Rights permit or interim authorization status (i.e., the 50 a. Sale of Artesian Water Rights. percent portion of an irrigation permit or interim (1) Title to artesian water rights will authorization status which is tied to the land) is not pass automatically with title to the land unless such transferable. (Tex. S.B. 1477 § 1.34; TEX. ADMIN. water rights are previously sold or conveyed to some CODE ANN. § 711.324(c)). other third party, or specifically reserved by the grantor. (296 S.W. 273). (d) Except as provided in Section (2) Note that artesian water does not 711.338(c) & (e), ownership of a regular permit may need to be used on or for the benefit of the surface be transferred separately from ownership of the place estate and can likewise be sold for off-site use and of use or point of withdrawal. (TEX. ADMIN. CODE outside the basin where produced as long as it is used ANN. § 711.328(a)). for a lawful purpose. (276 S.W.2d 798). (e) Transfer of ownership of the (3) Exception place of use or point of withdrawal is presumed to (a) If the artesian water is transfer ownership of the regular permit, unless an located under land that is located within a express reservation of rights is made by the groundwater district, you will need a permit to transferor. (TEX. ADMIN. CODE ANN. § 711.328(b)). transfer groundwater (i.e., by sale) out of the district. (f) Ownership of all or a part of (TEX. WATER CODE ANN. § 36.122). an initial regular permit issued for “base irrigation b. Lease of Artesian Water Rights groundwater” shall pass with transfer of ownership (1) Artesian water rights can be leased of irrigated lands owned by holder of initial regular unless such water rights are previously leased to permit and identified as the place of use in such some other third party. permit. (TEX. ADMIN. CODE ANN. § 711.328(c)). (2) Note that artesian water does not (g) Ownership of all or a part of need to be used on or for the benefit of the surface an initial regular permit issued for “base irrigation estate and can likewise be leased for off-site use and groundwater” may not be reserved to the transferor. outside the basin where produced as long as it used (TEX. ADMIN. CODE ANN. § 711.328(e)). for a lawful purpose. (h) Ownership of all or a part of (3) Exception the initial regular permit issued for “unrestricted (a) If the artesian water is irrigation groundwater” need not necessarily pass located under land that is located within a with the transfer of ownership of the place of use or groundwater district, you will need a permit to point of withdrawal and may be reserved to the transfer groundwater (i.e., by lease) out of the transferor. (TEX. ADMIN. CODE ANN. § 711.328)(d). district. (TEX. WATER CODE ANN. § 36.122). (i) Regular permittees may c. Transfer of Edwards Aquifer groundwater transfer non-irrigation permits within the EAA permitted rights boundaries without restrictions as to the place or (1) If the artesian water comes out of purpose of use. (TEX. ADMIN. CODE ANN. the Edwards Aquifer, the following rules apply: § 711.334).

34 Water Rights Outline and Checklist Chapter 9

(j) Regular permittees may annual report before March 1, reporting water use for transfer unrestricted irrigation groundwater within preceding calendar year. (Tex. S.B. 1744 § 1.32). the EAA boundaries without restrictions as to the place or purpose of use. (TEX. ADMIN. CODE ANN. 13. Miscellaneous § 711.336). a. Rights are subject to condemnation by (k) Except for temporary political subdivisions. (TEX. WATER CODE ANN. transfers, place or purpose of use for all or a part of § 11.033). an initial regular permit issued for base irrigation groundwater is not transferable. (TEX. ADMIN. C. Spring Water (presumed to be percolating CODE ANN. § 711.338). water if it does not have its source in an underground (l) EAA must be given notice stream, is not of sufficient magnitude to be of any within 30 days of the transfer of a regular permit or value to riparian landowners, and is not the source of regular permit application (TEX. ADMIN. CODE ANN. or contributes in large part to the flow of a § 711.348). No transfer is generally effective until watercourse) the EAA has issued a final order granting the application to transfer and amend. (TEX. ADMIN. 1. Ownership-based on rule of capture, therefore, CODE ANN. § 711.350). privately owned. (296 S.W.2d 273, 271 S.W.2d 503). (m) If the artesian water comes 2. Form of evidence of water right out of the Edwards Aquifer, a holder of a permit for Generally, no certificates of adjudication or irrigation use may not lease more than 50 percent of permits needed the irrigation rights initially permitted. The user’s a. Exception remaining irrigation water rights must be used in (1) If the spring water comes out of the accordance with the original permit and must pass Edwards Aquifer, you will need a water withdrawal with transfer of the irrigated land. (Tex. S.B. 1744 permit. (Tex. S.B. 1477 § 1.15). § 1.34). (n) The transferee is required, 3. Water Rights Quantified within 30 days, to file a record of the notice of Generally, no transfer or the final order and amended regular b. Exceptions permit in the deed records of: (a) the counties in (1) If the spring water comes out of the which the point of withdrawal and place of use are Edwards Aquifer, you will need a water withdrawal identified in the regular permit or permit application, permit which must specify the total volume of water and (b) the counties to which the point of withdrawal withdrawal (i.e., expressed in acre feet) (Tex. S.B. and place of use are transferred. (TEX. ADMIN. 1477 § 1.15) CODE ANN. § 711.356). (2) If the spring water is located under (o) No transfers are effective land that is located within a groundwater district, until a notice has been filed with the EAA or the subject to certain exemptions, exceptions and EAA has issued an order granting an application to limitations, you will need a permit to drill, equip and transfer and amend. (TEX. ADMIN. CODE ANN. complete a water well and the permit may include the § 711.358). conditions and restrictions, if any, placed on the amount of withdrawal. (TEX. WATER CODE ANN. 12. Reports/Records §§ 36.113, 36.1131). a. File Annual Report by March 1. (TEX. WATER CODE ANN. § 11.207). 4. Place of use specified b. File report of new artesian well. (TEX. Generally, no WATER CODE ANN. § 11.204). a. Exceptions c. Maintain drilling records (TEX. WATER (1) If the spring water comes out of the CODE ANN. § 11.203). Edwards Aquifer, you will need a water withdrawal d. If the artesian water comes out of the permit which may specify the place of use. (Tex. Edwards Aquifer, each permit holder shall file an S.B. 1477 § 1.15).

35 Chapter 9 Water Rights Outline and Checklist

(2) If the spring water is located under of withdrawal. (TEX. WATER CODE ANN. land that is located within a groundwater district, §§ 36.113, 36.1131). subject to certain exemptions, exceptions and limitations, you will need a permit to drill, equip and 8. Acres Irrigated specified complete a water well and the permit may include the Generally, no location of the use of the water from the water well. a. Exceptions (TEX. WATER CODE ANN. §§ 36.113, 36.1131). (1) If the spring water comes out of the Edwards Aquifer, you will need a water withdrawal 5. Purpose of use specified permit which may specify the place of use. (Tex. Generally, no S.B. 1477 § 1.15). a. Exceptions (2) If the spring water is located under (1) If the spring water comes out of the land that is located within a groundwater district, Edwards Aquifer, you will need a water withdrawal subject to certain exemptions, exceptions and permit which may specify the purpose of use. (Tex. limitations, you will need a permit to drill, equip and S.B. 1477 § 1.15). complete a water well and the permit may include the (2) If the spring water is located under location of the use of the water from the water well. land that is located within a groundwater district, (TEX. WATER CODE ANN. §§ 36.113, 36.1131). subject to certain exemptions, exceptions and 9. Water Well authorization for drilling, equipping limitations, you will need a permit to drill, equip and and completing the water well complete a water well and the permit may include the Generally, no purpose for which the water well is to be used. (TEX. a. Exceptions WATER CODE ANN. §§ 36.113, 36.1131). (1) If the spring water comes out of the 6. Point of diversion specified Edwards Aquifer, you will need a permit to drill, Generally, no equip and complete the water well. (Tex. S.B. 1477 a. Exceptions § 1.15). (1) If the spring water comes out of the (2) If the spring water is located under Edwards Aquifer, you will need a water withdrawal land that is located within a groundwater district, permit which may specify the location of the water subject to certain exemptions, exceptions and well. (Tex. S.B. 1477 § 1.15). limitations, you will need a permit to drill, equip and (2) If the spring water is located under complete the water well. (TEX. WATER CODE ANN. land that is located within a groundwater district, §§ 36.113, 36.1131). subject to certain exemptions, exceptions and limitations, you will need a permit to drill, equip and 10. Limits on Use complete a water well and the permit may include the a. Cannot have the use of the water amount location of the water well. (TEX. WATER CODE ANN. to wanton and willful waste of the water. (276 §§ 36.113, 36.1131). S.W.2d 798). b. If the spring water comes out of the 7. Rate of diversion specified Edwards Aquifer, cannot pollute or contribute to the Generally, no pollution of the Aquifer. (Tex. S.B. 1477 § 1.35). a. Exceptions (1) If the spring water comes out of the 11. Transfer of Water Rights Edwards Aquifer, you will need a water withdrawal a. Sale of Spring Water Rights (which are permit which must specify the maximum rate of deemed to be percolating water). water withdrawal. (Tex. S.B. 1477 § 1.15). (1) Title to spring water rights will (2) If the spring water is located under pass automatically with title to the land unless such land that is located within a groundwater district, water rights are previously sold or conveyed to some subject to certain exemptions, exceptions and other third party, or specifically reserved by the limitations, you will need a permit to drill, equip and grantor. (296 S.W. 273). complete a water well and the permit may include the (2) Note that spring water does not conditions and restrictions, if any, placed on the rate need to be used on or for the benefit of the surface

36 Water Rights Outline and Checklist Chapter 9

estate and can likewise be sold for off-site use and of use or point of withdrawal. (TEX. ADMIN. CODE outside the basin where produced. (296 S.W.2d ANN. § 711.328(a)). 798). (e) Transfer of ownership of the (3) Exception place of use or point of withdrawal is presumed to (a) If the spring water is located transfer ownership of the regular permit, unless an under land that is located within a groundwater express reservation of rights is made by the district, you will need a permit to transfer transferor. (TEX. ADMIN. CODE ANN. § 711.328(b)). groundwater (i.e., by sale) out of the district. (TEX. (f) Ownership of all or a part of WATER CODE ANN. § 36.122). an initial regular permit issued for “base irrigation b. Lease of Spring Water Rights (which are groundwater” shall pass with transfer of ownership deemed to be percolating water). of irrigated lands owned by holder of initial regular (1) Spring water rights can be leased permit and identified as the place of use in such unless such water rights are previously leased to permit. (TEX. ADMIN. CODE ANN. § 711.328(c)). some other third party grantor. (g) Ownership of all or a part of (2) Note that spring water does not an initial regular permit issued for “base irrigation need to be used on or for the benefit of the surface groundwater” may not be reserved to the transferor. estate and can likewise be sold for off-site use and (TEX. ADMIN. CODE ANN. § 711.328(e)). outside the basin where produced. (h) Ownership of all or a part of (3) Exception the initial regular permit issued for “unrestricted (a) If the spring water is located irrigation groundwater” need not necessarily pass under land that is located within a groundwater with the transfer of ownership of the place of use or district, you will need a permit to transfer point of withdrawal and may be reserved to the groundwater (i.e., by lease) out of the district. (TEX. transferor. (TEX. ADMIN. CODE ANN. § 711.328)(d). WATER CODE ANN. § 36.122). (i) Regular permittees may c. Transfer of Edwards Aquifer groundwater transfer non-irrigation permits within the EAA permitted rights boundaries without restrictions as to the place or (1) If the spring water comes out of the purpose of use. (TEX. ADMIN. CODE ANN. Edwards Aquifer, the following rules apply: § 711.334). (a) Edward Aquifer Authority (j) Regular permittees may (“EAA”) term, emergency, and monitoring well transfer unrestricted irrigation groundwater within permits, and exempt well status, are not transferable, the EAA boundaries without restrictions as to the except for ownership. (TEX. ADMIN. CODE ANN. place or purpose of use. (TEX. ADMIN. CODE ANN. §711.324(a)). § 711.336). (b) Place of use for a permit or (k) Except for temporary interim authorization status may not be transferred transfers, place or purpose of use for all or a part of outside the EAA’s boundaries. (Tex. S.B. 1477 § an initial regular permit issued for base irrigation 1.34; TEX. ADMIN. CODE ANN. § 711.324(b)). groundwater is not transferable. (TEX. ADMIN. (c) Except as provided in Section CODE ANN. § 711.338). 711.338, place and purpose of use for all or part of (l) EAA must be given notice the “base irrigation groundwater” component of a within 30 days of the transfer of a regular permit or permit or interim authorization status (i.e., the 50 regular permit application (TEX. ADMIN. CODE ANN. percent portion of an irrigation permit or interim § 711.348). No transfer is generally effective until authorization status which is tied to the land) is not the EAA has issued a final order granting the transferable. (Tex. S.B. 1477 § 1.34; TEX. ADMIN. application to transfer and amend. (TEX. ADMIN. CODE ANN. § 711.324(c)). CODE ANN. § 711.350).

(d) Except as provided in Section (m) If the spring water comes out 711.338(c) & (e), ownership of a regular permit may of the Edwards Aquifer, a holder of a permit for be transferred separately from ownership of the place irrigation use may not lease more than 50 percent of the irrigation rights initially permitted. The user’s

37 Chapter 9 Water Rights Outline and Checklist

remaining irrigation water rights must be used in 1. Ownership accordance with the original permit and must pass a. Dependent on land being contiguous to with transfer of the irrigated land. (Tex. S.B. 1744 watercourse or other natural body of water. (86 § 1.34). S.W. 733, 297 S.W. 225). (n) The transferee is required, b. Dependent on land being within watershed within 30 days, to file a record of the notice of of bordering watercourse. (86 S.W. 733). transfer or the final order and amended regular permit in the deed records of: (a) the counties in 2. Form of evidence of water right which the point of withdrawal and place of use are No certificates of adjudication or permits needed identified in the regular permit or permit application, Note: Since no certificates of adjudication or and (b) the counties to which the point of withdrawal permits are needed, the rights do not need to be and place of use are transferred. (TEX. ADMIN. recorded with the county clerk. CODE ANN. § 711.356). (o) No transfers are effective 3. Water Rights Quantified until a notice has been filed with the EAA or the No EAA has issued an order granting an application to transfer and amend. (TEX. ADMIN. CODE ANN. 4. Place of use specified § 711.358). No

12. Reports/Records 5. Purpose of use specified Generally, no. No a. Exception (1) If the spring water comes out of the 6. Point of diversion specified Edwards Aquifer, each permit holder shall file an No annual report before March 1 reporting water use for preceding calendar year. (Tex. S.B. 1477 § 1.32). 7. Rate of diversion specified No 13. Miscellaneous a. Rights are subject to condemnation by 8. Acres Irrigated specified political subdivisions. (TEX. WATER CODE ANN. No § 11.033). 9. Limits on Use D. Underground Stream Water – A a. Arguably, rights do not extend to tracts of Contradiction land outside the boundaries of the original survey of No underground streams have been identified or land granted by the sovereign (86 S.W. 733) (But see declared. Nevertheless, some cases have suggested 297 S.W. 225). that this water should be treated differently than b. Riparian rights attached to land granted percolating water. by the Republic of Texas and the State of Texas between January 20, 1840 and July 1, 1895. (346 II. SURFACE WATER – STATE-OWNED S.W.2d 853, 355 S.W.2d 502). (Ordinary flow, underflow, and tides of every c. Prior to January 20, 1840, land granted flowing river, natural stream, and lake, and of by Spain and Mexico carried riparian water rights every bay or arm of the Gulf of Mexico.) only for domestic use, but did not carry riparian water rights for irrigation unless the sovereign A. Riparian Water Rights (Riparian water rights specifically granted the right of irrigation. (346 exist only for domestic and livestock purposes. S.W.2d 853, 355 S.W.2d 502). Riparian water rights for all remaining purposes have d. Rights apply only to ordinary flow and either been merged with adjudicated water rights or underflow of watercourse. (286 S.W.2d 438). are now considered extinguished.)

38 Water Rights Outline and Checklist Chapter 9

e. Rights held in common along watercourse - basically priority of use does not establish priority 7. Rate of diversion specified of right. (286 S.W. 458). Yes (TEX. WATER CODE ANN. § 11.323). f. Rights are not destroyed by nonuse. (37 Tex. 173). 8. Acres Irrigated specified g. Use limited by reasonableness. (865 Yes (TEX. WATER CODE ANN. § 11.323). S.W. 733, 158 S.W. 164). h. Remaining riparian rights can only be 9. Limits on Use used for domestic and livestock purposes. (TEX. a. Subject to the “first in time first in right” WATER CODE ANN. § 11.322(1)). rule. (TEX. WATER CODE ANN. § 11.027). i. Arguably, cannot divert and sell water for Exception use on non-riparian lands if other riparian (1) Lower Rio Grande Valley equitable landowners are prejudiced. (86 S.W. 733, 296 S.W. irrigation water rights adjudicated on the basis of 273, But see 297 S.W. 225). weighted priorities and not in accordance with the 10. Transfer of Water Rights “first in time first in right” rule. (143 S.W.2d 728). a. Sale of Adjudicated Water Rights. b. If water rights are abandoned for 3 Title to riparian water rights (for domestic successive years, water rights are forfeited and and livestock purposes) will pass automatically with subject to appropriation. (TEX. WATER CODE ANN. title to the land. (91 S.W. 848). § 11.030). 11. Reports/Records (1) 10-year period can be tolled once if a. No records or reports are necessary. water rights are deposited in the Texas Water Bank. (30 TEX. ADMIN. CODE §§ 359.8, 359.15). 12. Miscellaneous c. If water rights are not used for 10 years, a. Rights are subject to condemnation by water rights are subject to cancellation. (TEX. political subdivisions. (TEX. WATER CODE ANN. WATER CODE ANN. § 11.172). § 11.033). d. nterbasin Transfers - can divert water from one river basin to an any other river basin only B. Adjudicated Water Rights with authorization from TNRCC. (TEX. WATER 1. Ownership-based on adjudication by CODE ANN. § 36.122). commission and final action by district court. (TEX. WATER CODE ANN. § 11.323). 10. Transfer of Water Rights a. Sale of Adjudicated Water Rights. 2. Form of evidence of water right Title to adjudicated water rights will pass Certificates of adjudication (TEX. WATER CODE automatically with title to the land unless such water ANN. § 11.323). rights are previously sold or conveyed to some other Note: Certificate of adjudication must be third party, or specifically reserved by the grantor. recorded with the county clerk. (TEX. WATER CODE (200 S.W.2d 674, 30 TEX. ADMIN. CODE § 297.81). ANN. § 11.324). (1) Note - Adjudicated water rights will need to be amended if the new owner plans to change 3. Water Rights Quantified the place of use, purpose of use, point of diversion Yes (TEX. WATER CODE ANN. § 11.323). and rate diversion. (TEX. WATER CODE ANN. § 11.122). 4. Place of use specified b. Lease of Adjudicated Water Rights Yes (TEX. WATER CODE ANN. § 11.323). Adjudicated water rights can be leased unless such water rights are previously leased to 5. Purpose of use specified some other third party. Yes (TEX. WATER CODE ANN. § 11.323). (1) Note - Adjudicated water rights will need to be amended if the lessee plans to change the 6. Point of diversion specified place of use, purpose of use, point of diversion and Yes (TEX. WATER CODE ANN. § 11.323). rate diversion. (TEX. WATER CODE ANN. § 11.122).

39 Chapter 9 Water Rights Outline and Checklist

c. Evidencing a Change in the Ownership of (4) Term Permits - issued only when a Water Rights senior water right has not been perfected. (TEX. The owners of water rights are to inform WATER CODE ANN. § 11.138). the executive director of the Texas Natural Resource (5) Emergency Permits and other Conversation Commission of any transfer of water Authorization - with notice to the governor, can be rights. Any written instruments evidencing a transfer issued for a period of not more than 120 days. Can of water rights are to be recorded with the county be renewed once for not longer than 60 days. (TEX. clerk of the county where the rights are located with WATER CODE ANN. § 11.139). a copy of the recorded instrument filed with the (6) Other permits (TEX. WATER CODE executive director of the Texas Natural Resource ANN. § 11.135). Conversation Commission. See 30 TEX. ADMIN. (a) Storage (TEX. WATER CODE CODE §§ 297.81, 297.83 (2000). ANN. § 11.140). (b) Dam and Reservoir (TEX. 11. Reports/Records WATER CODE ANN. § 11.143). a. Submit annual report before March 1 to the Texas Natural Resource Conservation 3. Water Rights Quantified Commission. (TEX. WATER CODE ANN. § 11.031). Yes (TEX. WATER CODE ANN. § 11.135). b. Maintain record of daily operation if owning and operating a system of waterworks. (TEX. 4. Place of use specified WATER CODE ANN. § 11.032). Yes (TEX. WATER CODE ANN. § 11.135).

12. Miscellaneous 5. Purpose of use specified a. Rights are subject to condemnation by Yes (TEX. WATER CODE ANN. § 11.135). political subdivisions. (TEX. WATER CODE ANN. § 11.033). 6. Point of diversion specified Yes (TEX. WATER CODE ANN. § 11.135). C. Permitted Water Rights 1. Ownership-based on issuance of water rights by 7. Rate of diversion specified commission. (TEX. WATER CODE ANN. § 11.134). Yes (TEX. WATER CODE ANN. § 11.135).

2. Form of evidence of water right 8. Acres Irrigated specified Permit (TEX. WATER CODE ANN. § 11.135). Yes (TEX. WATER CODE ANN. § 11.135). a. Note: The permit must be recorded with the county clerk. (TEX. WATER CODE ANN. 9. Limits on Use § 11.136). a. Subject to the “first in time first in right” b. Type of Permits rule (TEX. WATER CODE ANN. § 11.027). (1) Regular Permit (TEX. WATER b. If water rights are abandoned for 3 CODE ANN. § 11.135). successive years, water rights are forfeited and (2) Seasonal - limited to portion or subject to appropriation. (TEX. WATER CODE ANN. portion of the calendar year stated in permit (TEX. § 11.030). WATER CODE ANN. § 11.137). c. If water rights are not used for 10 years, (3) Temporary permit - Without a water rights are subject to cancellation. (TEX. hearing, permit is limited to 10 acre-feet of water and WATER CODE ANN. § 11.172). a term up to 1 year. Permit cannot interfere or (1) 10-year period can be tolled if adversely affect prior appropriations or vested rights. water rights are deposited in the Texas Water Bank. (TEX. WATER CODE ANN. § 11.138). (30 TEX. ADMIN. CODE § 359.8, 359.15). With a hearing, permit can be d. Interbasin Transfers - can divert water issued for a term up to 3 years. (TEX. WATER CODE from one river basin to an any other river basin only ANN. § 11.138). with authorization from TNRCC. (TEX. WATER CODE ANN. § 36.122).

40 Water Rights Outline and Checklist Chapter 9

10. Transfer of Water Rights a. Sale of Permitted Water Rights. Title to Permitted water rights will pass automatically with title to the land unless such water rights are previously sold or conveyed to some other third party, or specifically reserved by the grantor. (30 TEX. ADMIN. CODE § 297.81). (1) Note - Permitted water rights will need to be amended if the new owner plans to change the place of use, purpose of use, point of diversion and rate diversion. (TEX. WATER CODE ANN. § 11.122). b. Lease of Permitted Water Rights Permitted water rights can be leased unless such water rights are previously leased to some other third party. (1) Note - Permitted water rights will need to be amended if the lessee plans to change the place of use, purpose of use, point of diversion and rate diversion. (TEX. WATER CODE ANN. § 11.122). c. Evidencing a Change in the Ownership of Water Rights The owners of water rights are to inform the executive director of the Texas Natural Resource Conversation Commission of any transfer of water rights. Any written instruments evidencing a transfer of water rights are to be recorded with the county clerk of the county where the rights are located with a copy of the recorded instrument filed with the executive director of the Texas Natural Resource Conversation Commission. See 30 TEX. ADMIN. CODE §§ 297.81, 297.83 (2000).

11. Reports/Records a. Submit annual report before March 1 to the Texas Natural Resource Conservation Commission. (TEX. WATER CODE ANN. § 11.031). b. Maintain record of daily operation if owning and operating a system of waterworks. (TEX. WATER CODE ANN. § 11.032).

12. Miscellaneous a. Rights are subject to condemnation by political subdivisions. (TEX. WATER CODE ANN. § 11.033).

D. Diffused Surface Water – A Contradiction Arguably, diffused surface water belongs to the owner of the surface estate. (271 S.W.2d 03)

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