• Commercial Webinar Series

• 1 hour presentation

• Questions will be answered at the end.

• For technical questions, call 800-263-6317.

Commercial Webinar Series

Water Rights

Presented byCharles Porter, Real Estate, Water Rights,

and Construction ExpertKinski Leuffer, Associate Counsel

Mark Lehman, Vice President of Governmental Affairs

July 19, 2012

Outline

• Overview of Texas Water Law– Definitions– History– Recent Developments

• Water Today

• The Future

• Legislative Update

I. Overview

• Definitions:

– What are water rights?• A legal right to use the water of a natural stream or

water furnished through a ditch or canal, for general purposes, such as irrigation, mining, power, or domestic use, either to its full capacity or to a measured extent during a defined portion of the time.

I. Overview

• Definitions

– Groundwater • water percolate below the surface of the earth; • not state owned; and• the rights belong to the landowner

TWC § 36.001(5)

I. Overview

• Definitions

– Groundwater • When put or allowed to sink into the ground,

water appropriated loses its character and classification as storm water or floodwater and is considered percolating groundwater.

TWC § 11.023(d).

I. Overview

• Definitions– Surface water

• the water of the ordinary flow, underflow, and tides of every flowing river, natural stream, and lake, and of every bay or arm of the Gulf of Mexico, and the storm water, floodwater, and rainwater of every river, natural stream canyon, ravine depression, and watershed in the state

TWC § 11.021(a)

I. Overview

• Definitions– Diffused surface water

• water on the surface that has not yet entered a watercourse

• rain runoff• water left in upland areas after a flood recedes

Kaiser, R. (2005). Who Owns the Water: A Primer on Texas Groundwater Law. Texas Parks and Wildlife Magazine, July 2005.

I. Overview

• Definitions– Who’s property is it?

• Groundwater property of the landowner. TWC § 36.002(a).

• Surface water property of the state. TWC § 11.021(a).

• Diffused surface water belongs to the landlowner until it enters a natural watercourse.

I. Overview

• Definitions

– What are groundwater rights?• Groundwater rights entitle the landowner to drill for and

produce the groundwater below the surface, subject to limitations by districts, without causing waste or malicious drainage of other property or negligently causing subsidence. TWC § 36.002(b)(1).

I. Overview

• Definitions

– What are surface rights?• Rights acquired under the laws of this state to impound,

divert, or use state water. The right to use surface water may be acquired by appropriation. TWC §§ 11.002(5) and 11.022.

I. Overview

• History

– Groundwater

• 1904 - TX adopts common law rule of capture

• 1949 - Groundwater districts created

I. Overview

• History

– Rule of capture allows the owner of land to pump as much water as he desires from under his property

Houston & Texas Central Ry. Co. v. East, 98 Tex. 146, 81 S.W. 279 (1904) (East).

I. Overview

• History

– Groundwater Conservation District (GCD)

• A district that has the authority to regulate the spacing of water wells, the production from water wells, or both.

I. Overview

• History– How many GCDs are there?

• Currently, there are 99 GCDs in Texas: 96 confirmed and 3 that are yet to be confirmed by voters through local elections.

– Where are they located?• http://www.twdb.state.tx.us/mapping/doc/maps/gcd_only_8x

11.pdf

I. Overview

• History

– What if the area is not covered by a GCD?

• The rule of capture applies.

I. Overview

• History– Surface water

• TX applied the doctrine of riparian rights• The Irrigation Act of 1889 and 1895

– - Led to appropriative rights

• The 1913 and 1917 Irrigation Acts– - TX adopts

permit system

• 1931 Wagstaff Act – - Ranking of

preferred water uses

I. Overview

• History– Surface water

• 1957 Cancellation statutes –

- cancellation of water rights for nonuse

• 1967 Water Rights Adjudication Act

I. Overview

• History

– Riparian rights• A riparian water right entitles the owner of

property adjacent to a watercourse to make reasonable use of water.

I. Overview

• History– Appropriation System

• “First in time, first in right” rule• water must be beneficially used• prohibited diversion or impounding that

damages the property of another by the overflow of the water

• secured by filing a sworn statement with county clerk

I. Overview

• Current Permit system– A permit may be obtained if:

• the unappropriated water is available: • the use does not conflict with existing water rights; and• the use is not detrimental to the public welfare.

– Permit exemptions are found in Section 11.142 of the Texas Water Code.

TWC § 11.134

I. Overview

• Recent Developments

– Edwards Aquifer Authority v. Day• The Texas Supreme Court held that landowners own

the groundwater in place beneath their property that cannot be taken for public use without adequate compensation

Edwards Aquifer Authority v. Day, --- S.W.3d ----, 2012 WL 592729 (Tex., Feb. 24, 2012)

Water Today

The Future

Legislative Update

Resources

• Water Rights for Texas Agents – TREC Course #: 04-00-064-24518. – 4 hours of MCE credit

• Texas Commission on Environmental Quality (TCEQ) – http://www.tceq.texas.gov/agency/water_main.html

• Texas Water Development Board– http://www.twdb.state.tx.us/

• Environmental Protection Agency (EPA)– http://water.epa.gov/

Questions

• For questions, please contact:

– Charles Porter - charlp@stedwards.edu

– The Legal Hotline 512/480-8200

Conclusion

• Thanks for your participation in our 2nd commercial webinar!

• Future Webinar Dates (4 scheduled) – March 28, 2013– May 23, 2013– July 25, 2013– October 24, 2013

• Give us your feedback!