Are water rights getting watered down?
Davy Moseley

Texans have fought for water rights ever since the first cows were brought to Texas, and probably before. In the old days, neighbors argued and feuded over land and water rights, and courts had to settle the dispute. Today, better fences have made better neighbors, but the courts are still called upon to decide who owns what.

"This is a new and evolving issue in Texas," said Judon Fambrough on the topic of water rights and water leasing at the Build East Texas Agriculture Conference in Tyler on April 27.

Fambrough, senior lecturer and attorney at law, Department of Ag Economics, Texas A&M University said there are basically three things landowners should look at when considering their rights: what the laws and lawmakers have said, how the courts have interpreted those laws, and what TNRCC and water companies have said about water rights and leasing provisions.

First of all, landowners should know who the law defines as the owner of surface and groundwater on their property.

The law states that any water on the surface belongs to the state, unless it is a small pond less than 200 acre/feet large. Small ponds are called diffused water and can be privately owned and used for private consumption.

"You need no permit to dig a small pond on your land as long as the pond does not impound more than 200 acre foot of water, and the water from the impoundment is used solely for domestic and livestock purposes," Fambrough said.

Diffused water, however, cannot be used for public recreation such as hunting or fishing without a TNRCC permit. There is legislation in the Texas Congress presently that would remove this language.

If surface water is owned by the state, and diffused water is owned by the landowner, who owns the groundwater, or water below the surface, and continuing to the center of the earth? The law states that all water that is not in an underground stream or lake is called percolated groundwater and is privately owned. However, Fambrough said, groundwater is so broadly defined that basically everything under the surface is presumed to be percolated and thus is privately owned.

In 90 percent of the property owned in Texas, the surface landowner is not the owner of the land's mineral rights. When the surface and mineral ownership is split, who owns the groundwater? According to Fambrough, the law states that the surface landowner is still the owner of the groundwater, unless specified in the deed, and is entitled by the Right of Capture law of 1840 to use or lease the water under the property with few limitations.

If a landowner wants to drill a private well on their property, they can do so by obtaining a permit from their local Groundwater Conservation District. However, even though the property may not be in a groundwater district, the landowner must comply with the state requirement on well spacing. Groundwater districts, once created, govern both the location of wells and pumping limits on the wells. Until they are created, the landowner is limited only by the state-wide spacing requirements, according to Fambrough.

Landowners can lease their groundwater to outside individuals, however, Fambrough warned, "Be careful what you grant when leasing water."

Water leases established after 1997, when Senate Bill 1 was passed in the Texas Congress, can last indefinitely if a time period is not reserved in the lease agreement. Unlike oil and gas leases, by which many water leases are modeled, groundwater sources recharge where oil supplies will not. Because of something called paying quantities in the wording of the laws, as long as a water source is producing, the lease holds up - and since the water is continually recharging, the water may never run out. This can be problematic if the lessor does not have basic provisions in the lease agreement such as ensuring access to the leased land in the form of easements and land inspection.

Fambrough recommended, if a landowner is thinking about leasing their groundwater, to work with an attorney on the lease agreement and wording so that the landowner is not signing away more than they will get back from the lease.

"Water leases can be tricky, especially for the landowner (lessor)," Fambrough said.

Private water leasing can be tricky, but at least the landowner can make the decisions. For landowners who get their water from other sources, such as above ground lakes, or river basins, which are state owned, the decision may be made for them where their water goes.

Senate Bill 1 also allowed for the interbasin transfer of water. This means that different water basins could sell water to each other, provided they are properly permitted to do so. During drought, however, a provision of Senate Bill 1, called junior water rights, said the landowners' needs in a particular river basin must be met first before water could be sold to other river basins.

Presently, the Texas Legislature is looking at water rights in the form of Senate Bill 2, and is considering doing away with these junior water rights. What this means for landowners who get their water from river basins is that the river basin can sell water without guaranteeing that its landowners will not go without.

Water is the basis of all life. Texas landowners must protect their water rights, and be aware of what is happening with their water supply.