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4. Water: Privately Owned

Porter, Charles R. Texas A&M University Press ePub

WATER: PRIVATELY OWNED

In the hydrologic cycle, surface water, before it becomes water in a watercourse, likely gets to the watercourse by running off the ground. Diffused surface water is rainwater or the water in our rare snowmelts—runoff—that stays on a landowner’s property before it enters a bed or channelized flow.1 This diffused surface water is owned by the landowner and is subject to capture without obtaining a permit from the state. If the landowner is able to capture the runoff water, defined as “casual or vagrant” water, before it joins a natural gully, stream, or watercourse, the landowner owns this water.2 This captured diffused water can be sold or used as the landowner sees fit. However, the moment this captured water enters a watercourse, its ownership transfers to the state. Water left standing in upland areas after a flood recedes may also qualify as diffused surface water, even though actual floodwaters cannot be captured because they are owned by the state.

DIFFUSED SURFACE WATER: “RUNOFF”

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1. The Unique Characteristics of Water and Water Rights in Texas

Porter, Charles R. Texas A&M University Press ePub

THE UNIQUE CHARACTERISTICS OF WATER AND WATER RIGHTS IN TEXAS

Determining a water right in Texas depends on which of three geological containers holds the water.1 The first container is surface water, or water that flows on the surface of the ground in a watercourse.2 The State of Texas owns the water in a watercourse. The assessment of what makes up a watercourse can be complicated, so the safest way to look at ownership of surface water is to consider all water flowing in any stream or area with bed and banks to be surface water. Surface water is not yours to own but, except in unique situations, is owned by the State of Texas. Knowing this may save you many dollars in fines and hours of angst. If you have a question about surface water ownership on real property you own or are considering purchasing, ask the Texas Commission on Environmental Quality (TCEQ) for a determination.

The second geological container is known as diffused surface water, or rainwater that runs off your roof or over the surface of your land without flowing in a stream or channel. The water in this container is owned by the landowner.

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5. Water: Shared Ownership

Porter, Charles R. Texas A&M University Press ePub

WATER: SHARED OWNERSHIP

States neighboring Texas claim ownership of their surface water and groundwater. The states share surface water, from major boundary rivers to hundreds of streams and creeks. The Red River and the Sabine River form part of our boundaries with Oklahoma, Arkansas, and Louisiana. Texas shares transboundary aquifers with New Mexico, and the Rio Grande springs from Colorado and New Mexico headwaters. In any dispute between states over surface water, the only court with jurisdiction is the United States Supreme Court.

OKLAHOMA, ARKANSAS, LOUISIANA, AND NEW MEXICO

To date there have been few disputes with our neighboring states other than some boundary disputes with Oklahoma as the Red River meanders—disputes concerning oil and gas reserve locations. The Sabine River between Texas and Louisiana is located in the wet area of the state in relation to rainfall, so the potential for disputes over water issues is lessened. However, the Sabine springs from headwaters in Texas, and any diversion of Sabine flow would certainly concern Louisiana, as any diversion of the Sabine on the Louisiana side would Texas. The Canadian River flows through the Texas Panhandle from New Mexico through a large part of Oklahoma. Any diversions by New Mexico and/or Texas concern Oklahoma. In the early twentieth century the Elephant Butte Reservoir on the Rio Grande caused quite a debate, but Texas and New Mexico came to agreement and the reservoir was built.

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10. Public Policy Debates in the Recent Past

Porter, Charles R. Texas A&M University Press ePub

PUBLIC POLICY DEBATES IN THE RECENT PAST

Difficult public policy issues relating to water have faced Texans for many generations. The challenging choices have not necessarily been between right and wrong; typically, the positions and arguments of all the parties involved in water disputes could be considered reasonable.

FOUR TALES FROM THE COMMON POOL

The resolutions to those disputes have most often involved questions about who owns the water, who can use the water, and who is liable when one party uses up the water available to another party. Some of the legislative decisions and court rulings in the past seem to make common sense and create good public policy, while other decisions and rulings seem to defy all logic.

Tale #1: The Case of the Biggest Pump

Who could have known that an obscure lawsuit over rights to underground water in a small town in north Texas at the start of the twentieth century would begin a cascade of events that is still unfolding today in the courts, in state government, and in people’s daily lives?1 The ultimate ruling in this lawsuit, a lawsuit that did not merit even a single word in the local newspaper,2 is infamously known as the “rule of capture,” or “he who has the biggest pump gets the most or all of the water.” The rule of capture is one of the most confusing, and for some the most reviled, concepts in Texas water law today.

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Appendix 2. Government and Other Resources

Porter, Charles R. Texas A&M University Press ePub

APPENDIX 2

GOVERNMENT AND OTHER RESOURCES

1. Edwards Aquifer Authority (EAA): www.edwardsaquifer.org. This is the website of the most influential groundwater district in the state. It is also an extensive site with access to everything the EAA is authorized to regulate.

2. Environmental Protection Agency (EPA): www.epa.gov. This federal website includes extensive information about issues pertaining to water across the United States.

3. Lower Colorado River Authority (LCRA): www.lcra.org. The website of the LCRA is full of good information about weather and river conditions.

4. River authorities: Use the Texas Parks and Wildlife Department site for links to all the river authorities in Texas: http://www.tpwd.state.tx.us/landwater/water/habitats/rivers/authorities.phtml.

5. San Antonio Water System (SAWS): www.saws.org. The SAWS website has extensive information about San Antonio’s water supply system and also keeps up a fine internal site on the status of the Edwards Aquifer upon which San Antonio depends for its freshwater. SAWS is a water policy leader in the state and heavily influences water issues. Prudent researchers should place themselves on the mailing list to receive in advance the agendas of SAWS meetings.

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