Water Law BY LORIE A. WOODWARD
This is the fourth installment in a six-part series on key laws that Texas landowners need to know. The series is prepared in partnership with Tiffany Dowell Lashmet, Associate Professor and Extension Specialist, Texas A&M AgriLife Extension, who authored Owning Your Piece of Texas: Key Laws Texas Landowners Need to Know. The handbook is available as a free, downloadable PDF file at (https:// a g r i l i f e c d n . t a m u . e d u / t e x a s a g l a w/ files/2019/05/Owning-Your-Piece-of-Texas. pdf). Hard copies may be purchased by contacting the author.
M
ark Twain famously said, “Whiskey is for drinking, water is for fighting.” And, he made that statement long before Texas’ population boomed and its rainfall became seemingly more erratic. “Water law is one of the most contentious and frequent legal issues Texas landowners face,” said Tiffany Dowell Lashmet, an attorney with expertise in agricultural law who serves as an Associate Professor and Extension Specialist for Texas A&M AgriLife Extension. Because of the likelihood for conflict, Texas landowners need to understand the basics of water law and the rights and limitations related to use of water on their property. “In Texas, water is divided into two broad categories, which are governed by two different legal schemes,” Lashmet said. “As a result, Texas water law is more complex than other states that follow a single legal approach for all waters.”
32 T E X A S W I L D L I F E
JULY 2021
GROUNDWATER Groundwater, defined in the Texas Water Code as “water percolating beneath the surface of the earth,” is generally property of the surface owner unless there is an agreement stating otherwise. Groundwater, like other estates, can be severed from the surface estate. Landowners can convey the groundwater rights and retain the rest of the property. For instance, landowners can sell their groundwater rights to a company that is providing water to a city and still own the surface estate. In the reverse, landowners can reserve the groundwater rights and sell the rest of the property. If property owners sell their land, but retain the groundwater rights, the buyer will own the surface estate, but not the groundwater. The sellers who reserved that right will own the groundwater. “Any reservation of groundwater must be expressly stated in the sales contract and in the recorded documents to be effective,” Lashmet said. If a seller has leased the groundwater rights for potential development that too should be noted in the sales contract and any documentation. Generally, the lease would transfer with the property. If, though, a buyer isn’t notified of the lease, the lease is not recorded, and it would not be obvious that a lease exists, it is questionable whether it could be enforced, Lashmet said. When the groundwater estate has been severed, it, like oil and gas, is dominant to the surface estate. Unless stated otherwise in writing, this means
that the groundwater estate owner can use as much of the surface estate as reasonably necessary to produce the groundwater estate. For example, Brett owns the surface estate and Amy owns the groundwater estate. If Amy chooses to lease the groundwater rights to Company H2O, the company has the implied right to come on Brett’s land and use as much of the surface as necessary to build roads, pipelines and other infrastructure necessary to develop, produce and transfer the groundwater. “In cases where the groundwater is separated from the surface estate, it is imperative to properly define the surface rights that provide access to that groundwater,” Lashmet said. RULE OF CAPTURE AND GCDS For more than 100 years, the Rule of Capture has governed Texas groundwater law. Under it, landowners have the right to pump water from beneath their property, even at the expense of their neighbor. Under Rule of Capture there are a few common law limitations that apply statewide. These prohibitions include: maliciously taking groundwater for the sole purpose of injuring a neighbor; willfully or wantonly wasting groundwater; negligently drilling or pumping from a well in a manner that causes subsidence; pumping from a contaminated well; and trespassing to pump groundwater. “Legal disputes involving the common law limitations are uncommon,” Lashmet said. “Conflicts arise in trying to balance everyone’s interests.”
