Texas Water....Who Owns It?

Since water is one of our state’s most valuable natural resources, it continues to be a 

highly political and sensitive issue.  However, there are many misconceptions and 

differences that are unique to water ownership compared to many of our state’s other 

natural resources. 

Because supplies are limited in many areas of the state, competition for water is rising 

among groups and individuals in Texas.  In order to protect both the individual’s own 

interests as well as those of the state, Texas residents need to be informed on exactly 

what their water ownership rights entail.

 

Water comes from either groundwater or surface water.  Surface water is found in ponds, 

lakes, rivers, streams, and bays.  Groundwater filters down from the earth’s surface and 

accumulates underground in aquifers.  On average, about 80 percent of all groundwater 

used in Texas is utilized for irrigating crops.  Conversely, the majority of surface water is 

confined to use within cities and industry. 

In Texas, water rights depend on whether the water is surface water or groundwater.  

Surface water is publicly owned and governed by the State of Texas.  Without a permit 

from the Texas Commission on Environmental Quality (TCEQ), landowners may only 

use surface water for domestic and livestock purposes.  If a landowner wishes to use the 

surface water for other sources such as irrigation, manufacturing, or power generation, he 

or she must obtain consent from the state in the form of a permit.  Some landowners may 

have concerns about whether the state requires them to obtain a permit to build a 

reservoir on their property for the use of a stock tank.  This falls into the “stock tank 

exception” that allows landowners to build up to a 200-acre-foot reservoir on their 

property without receiving permission from the state.  An acre-foot is the amount of 

water that will cover an acre of land one foot deep (over 325,850 gallons). 

Some concerns arise on the ownership of diffused surface water, which is surface water, 

in its natural state, that occurs after a rainfall or snowmelt, and runs off a roof or flows 

across the land in an unpatterned way.  Diffused surface water is commonly referred to as 

storm water, drainage water, or surface runoff.  Texas law states that diffused surface 

water is the property of the landowner until it enters a natural watercourse.  Once this 

water enters a natural watercourse it becomes property of the state.  The “stock tank 

exception” as discussed above does not apply to diffused surface water.  This means that 

a landowner may harvest the rainwater into the soil, or capture and store drainage water, 

as long as is captured before it reaches a natural water course. 

Unlike surface water, groundwater is the property of the landowner, which allows a 

landowner the right to capture the water beneath his or her property, and sell, lease, and 

move the water pumped from his or her property to a neighbor, corporation, or city.  

Historically, groundwater has been governed by “the rule of capture,” or the law of the 

biggest pump, which allows a person, with legal right to the groundwater, the right to 

pump whatever groundwater is available, regardless of the effects that pumping may have on 

neighboring water wells.  Texas courts have limited the rule of capture in order to prohibit a 

landowner from: 

• Pumping water for the purpose of maliciously harming an adjoining neighbor; 

• Pumping water for a wasteful purpose; 

• Causing land subsidence (sinking) on adjoining land from negligent pumping; and, 

• Drilling a slant well that crosses the adjoining property line. 

State of Texas legislators have passed several laws that curtail groundwater pumping.  

Three major restrictions which have been imposed to prevent unlimited pumping of 

groundwater can be found in the Texas Water Code.  These restrictions govern: 

• Pumping water that comes from the underflow of a river; 

• Pumping groundwater from an aquifer within the jurisdiction of a Groundwater 

Conservation District (GCD); and, 

• Pumping groundwater from the Edwards Aquifer within the jurisdiction of the 

Edwards Aquifer Authority. 

GCDs are the state’s preferred method of groundwater management through rules 

developed, adopted, and promulgated by a district in accordance with the provisions of 

the Texas Water Code and their enabling legislation.  Texas law authorizes GCDs to 

modify the rule of capture by regulating groundwater production through permitting of 

non-exempt water wells, well spacing requirements, and through other rules as deemed 

necessary to conserve, preserve, protect, recharge, prevent waste of groundwater, and to 

control subsidence.