In Texas, Surface Water is State Property -- So Don't Build that Dam without permission

In Texas, all surface water is the property of the state. More particularly, Texas Water Code Section 11.021(a) provides:

"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 is the property of the state."
The State's general philosophy or "policy" is pretty succinct: "The waters of the state are held in trust for the public, and the right to use state water may be appropriated only as expressly authorized by law." See Texas Water Code Sec. 11.0235

Since surface water is considered state water in Texas, the right to use it "may be acquired [only] by appropriation in the manner and for the purposes provided" in Chapter 11 of the Texas Water Code, and in Title 30 Chapter 295 of the Texas Administrative Code ("TCEQ Rules"). Chapter 11, and the accompanying TCEQ Rules expressly "appl[y] to all streams or other sources of water supply lying upon or forming a part of the boundaries of this state." See Texas Water Code Sec. 11.003

Only when "the right to use state water is lawfully acquired...may [it] be taken or diverted from its natural channel." See Texas Water Code Sec. 11.022 The right to use surface water in Texas (often referred to as an "appropriation" or "right of appropriation") is acquired by and through the issuance of a surface water permit from the Texas Commission on Environmental Quality.

TCEQ, in turn, grants the permits based upon a variety of factors, including (in no particular order):

1. The availability of water for permitting in a given watercourse(there is often said to be a "first-come, first-served" basis)

2. The purpose of use (which must be "beneficial"). See Texas Water Code Sec. 11.025

3. The location of use (sometimes called "point of diversion")

4. The reasonableness of the relationship between quanity of water requested and the proposed use. See Texas Water Code Sec. 11.025
5. The quality/construction of the water impoundment/diversion infrastructure (dam, reservoir, etc.)

Permitting state surface water in Texas is a lengthy, complex and sometimes expensive process. As water becomes more scarce, obtaining permits has grown increasingly difficult. There are, however, certain exepmtions to permitting requirements, including for domestic and livestock purposes (stock tanks).

Prior to impounding, diverting or otherwise withdrawing water from a stream, creek, river, lake or pond in Texas, landowners should obtain TCEQ permission, or contact an experienced Texas water lawyer to determine whether any exemptions from permitting might apply.