A Very Brief Summary of Groundwater Rights in Texas

By law, groundwater in Texas is regulated by Chapter 36 of the Texas Water Code. This is a very complex statute, so here is a general and highly-simplified explanation of how it works:

In Texas, groundwater has historically belonged to the person who “captured” it by bringing it to the surface through use of a well situated on their property (it is sometimes said that capture occurs when water is “reduced to possession” at the second it hits the wellhead). Notably, groundwater which remains underground does not “belong” to anybody.

Since groundwater is constantly moving or “percolating,” the actual molecules or drops of water captured by a given well don’t necessarily come from directly beneath the land upon which the well is located. Visualize an aquifer (the underground reservoir where groundwater is naturally located) as a large cup. A straw placed anywhere in the cup will suck water from the entire cup, not just the area directly below the straw. In the same manner, a well (which serves as the “straw”) on your property might suck water that was located under a neighbor’s property before the well began pumping. Thus, water that originated under the neighbor’s land now “belongs” to you because you “captured” it by bringing it to the surface. This is called the Rule of Capture, and has existed in Texas for over 100 years. It is sometimes called the “law of the Biggest Pump” since whoever has the highest capacity well will capture the most water. Texas is one of the few States that still employs the Rule of Capture.

Chapter 36 of the Water Code was enacted relatively recently in an effort to modify (but not do away with) the Rule of Capture and effectuate a more even allocation of water rights. Under Chapter 36, local communities have the right (but not obligation) to form “groundwater conservation districts” (GCDs) which serve as political subdivisions of the State responsible for regulating water rights within a given geographic area. These GCDs, where they exist, are governed by locally-elected Boards of Directors. The GCD Board will enact Rules regulating the capture, transport and production of groundwater, as well as the registration of water wells. Once a GCD is formed, groundwater rights are evidenced by a “permit” obtained from the GCD under its Rules. The permit will set-forth the quantity of water which a landowner may produce from a water well on his or her property, and the conditions governing that pumping. Failure to obtain a permit from a GCD can cause the “loss” of a right to produce groundwater (other than very small amounts for domestic use). You should note that small wells (used to serve domestic needs) usually are unregulated and don’t need permits, but they still must be registered with a GCD. The real concern is when a landowner has access to significant quantities of groundwater (which is often valuable and highly marketable depending on quality and location) but is unable to produce that water due to “loss of a right” by not documenting beneficial use of the water over time.