Texas Water Primer
Texas has the second largest state economy and the ninth largest in the world. The Texas economy and the 29.5 million Texas residents are entirely dependent upon access to adequate water. According to the Texas Comptroller, the State Water Plan prepared by the Texas Water Development Board anticipates that municipal water need (amount by which demand exceeds supply) will rise by 568 percent by the year 2070.
The road to satisfy the rising need will be bumpy in light of the results of the 2021 Texas Infrastructure Report Card published by the Texas Section of the American Society of Civil Engineers. Texas received a “C”, a slightly higher than the “C-” GPA of 2017. The report card indicates several infrastructure categories are in good to fair condition, but a “C” reflects below average conditions in many categories, including dams, levees, flood control, highways and roads, and wastewater in Texas, which all received a poor “D+ or below” grade. If it is any consolation for Texans, the American Society of Civil Engineers gave the entire nation unsatisfactory grades.
Texas has four agencies that have primary responsibility for Texas water issues: Texas Water Development Board (TWDB); Texas Commission on Environmental Quality (TCEQ); Texas Parks and Wildlife Department (TPWD); and the Texas State Soil and Water Conservation Board (TSSWCB).
TWDB is the state agency involved most closely with water issues in Texas and focuses on data collection, planning, and financing of water programs and plays an integral role in the regional water planning process.
TSSWCB programs address the quality and quantity of the water supply. The goal of the Water Supply Enhancement Program, (Brush Control Program), is to increase the amount of surface water and groundwater by removing certain water-depleting species of brush from specific watersheds.
TPWD is the state agency that protects the state’s fish and wildlife resources and exercises that responsibility through review, assessment, and response to water resource management issues affecting aquatic ecosystems.
TCEQ focuses on water quality and quantity programs through state and federal programs. TCEQ is the primary Texas agency enforcing the federal Safe Drinking Water Act to protect public health. TCEQ issues permits for the treatment and discharge of industrial and domestic wastewater and storm water. A key issue for Texas municipalities, TCEQ reviews completed plans and specifications for public water systems, regulates water/sewer utilities and ensures that safe drinking water is provided. TCEQ also assesses the quality of surface water and groundwater to ensure public drinking water systems meet state standards.
In addition to water management, another key issue is access. Water access is controlled by whomever holds the water rights. Texas water rights are divided into three types: surface water, diffused surface water, and groundwater, it is an area of law that is often litigated.
Surface water is statutorily defined: “water under ordinary flow, underflow and tides of every flowing river, natural stream, lake, bay, arm of the Gulf of Mexico, and stormwater, floodwater or rainwater of every river, natural stream, canyon, ravine, depression, and watershed in the state.” Texas Water Code Section 11.021. Surface water in a defined watercourse is owned by the state and subject to permitting requirements.
Diffused surface water is water on the surface that has not yet entered a “watercourse”. A watercourse is defined as having defined bed and banks, a current of water, and a permanent source and supply. Diffused surface water, or surface water not contained in or not derived from a defined water course, and groundwater are generally attached to land and subject to ownership by the landowner.
Groundwater is defined by Chapter 36 of the Texas Water Code; “water percolating below the surface of the earth” but not including subterranean streams or rivers. Like above ground rivers, subterranean rivers in Texas would be state-owned
Texas surface water law is governed by the doctrine of prior appropriation generally “first come first served” and followed by most western states. Generally, the first person to take a quantity of water from a water source for beneficial use has the right to continue to use that quantity of water for that purpose. Subsequent users can take the remaining water for their own beneficial use, but they may not impinge on the rights of the “prior appropriator.” Tex. Comm’n on Envtl. Quality v. Tex. Farm Bureau, 460 S.W.3d 264 (Tex. App.—Corpus Christi 2015)
Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our commercial and business litigation practice can be found here.