Practice Areas
Water
Surface water and groundwater in Texas: permits and approvals, enforcement, rights agreements, and sales and leasing of water rights.
Water has become a constraint on projects that were once planned around land and power alone. The firm advises on both surface water and groundwater in Texas: how much water a project may lawfully use, what permits or approvals may be needed before water is extracted, and how rights to water are held, transferred, leased, or sold.
Projects, permits, and approvals
The firm evaluates what water authorizations a project may require, and assists and advises clients on obtaining those authorizations.
- Evaluating projects for water required and the approvals required
- Surface water permits and amendments before the Texas Commission on Environmental Quality
- Groundwater conservation district permits, including spacing, production limits, and export authorizations
- Water supply for industrial, energy, and data center projects
Enforcement
The firm has represented clients in enforcement actions before the Texas Commission on Environmental Quality concerning use of water without prior approval and use that may not have complied with the applicable statutes and regulations.
Water rights transactions
- Groundwater rights agreements and leases
- Assignments and contracts with municipalities, utilities, districts, and other water use entities
- Sales of water rights by landowners to third parties
- Forming limited liability companies to hold the water rights of family members across separate tracts, so that the rights can be marketed and sold as one interest
Groundwater in Texas
Groundwater is generally governed by the rule of capture, under which a landowner may pump and use the water beneath the land without liability to a neighbor whose well is drawn down. In Edwards Aquifer Authority v. Day, decided in 2012, the Texas Supreme Court held that a landowner has an ownership interest in the groundwater in place, an interest that may support a takings claim where regulation goes too far.
That ownership is nonetheless subject to a certain degree of regulation. The Legislature has made groundwater conservation districts the state's preferred method of groundwater management, and a district may require permits and impose spacing and production limits within its boundaries. Districts adopt desired future conditions for the aquifers beneath them, and those conditions shape how much water may be permitted. Domestic and livestock wells within the statutory criteria are generally exempt from district permitting. Coverage is not uniform, and whether a district has jurisdiction over a particular tract may determine what a project may extract from the relevant aquifer.
Surface water in Texas
Surface water is owned by the state and held in trust for the public. A right to divert or impound it is generally obtained by appropriation, through a permit issued by the Texas Commission on Environmental Quality, and rights are ranked by seniority, so that during a shortage the earlier right holds the first right to withdraw water over later rights holders.
Domestic and livestock use is generally exempt within certain statutory limits, including small impoundments.
Related practice areas
Water rights and availability questions often arise regarding a project under development, or with a transaction in which the water is part of the rights or property being purchased or leased. See Environmental, Energy, and Industries.
Questions clients ask
Who owns the groundwater under my land?
You do, generally under the rule of capture. You may generally produce the water, but there may be certain limitations imposed by a groundwater conservation district if one has been established in an area that includes your land. The conservation district may require a permit and may seek to limit the rate of withdrawal of groundwater.
I own land along a creek. Can I take water from it?
Not by virtue of owning the land. Surface water belongs to the state, and a right to use it generally must be allowed by authorization from the state through the Texas Commission on Environmental Quality. Domestic and livestock use is treated differently and is generally exempt from permit requirements within certain statutory limits.
Can water rights be sold apart from the land?
Groundwater rights may be leased, sold, or reserved separately from the surface. Surface water rights may also be sold or amended, subject to agency approval.
Our family owns several tracts. Can the water be sold together?
Often, yes. One approach is to form a limited liability company to hold the water rights across the tracts, so a buyer can acquire a single interest rather than negotiating with each owner. The structure also settles among the family how proceeds are shared.