Surface Water Rights In Texas

In Texas, there are two primary types of appropriated surface water rights: perpetual rights, including certificates of adjudication and permits; and limited-term rights including term permits, temporary permits, seasonal permits, contractual permits, and emergency permits. Perpetual appropriated water rights generally have the following features in common:

• An assigned priority date. This date determines the holder’s priority for available water. Regardless of the priority date, whenever there is less water than is needed to satisfy all water rights in a basin, each appropriated right is subordinate to domestic and livestock users for the available water.

• A specified volume of water that the holder may take or use within each year and a diversion rate if there is diversion of water; access to this volume of water is subject to varying degrees of reliability depending upon the availability of water and the holder’s priority date.

• An ability to impound water (for example, to store it in a reservoir above a dam), to divert water (for example, to pump it from the stream), or both.

A right to impound water is called an impoundment right. An impoundment right will specify the location of the holder’s dam, the capacity of the holder’s reservoir, and any special conditions placed on the holder’s right to impound water—for example, a permit may state the condition that the holder “may impound only the portion of the stream flow that exceeds 100 cubic feet per second.”
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A right to divert water is called a diversion right and is often referred to as a “run-of-the-river” right. A diversion right will specify where the holder may divert water (that is, the holder’s diversion point), the rate at which the holder may divert water, and any special conditions placed on the holder’s right to divert water—for example, a permit may state the condition that the holder “may divert water only between October 1 and November 30 of each year or when the stream flow is at a certain level.”

Perpetual rights, and to an extent groundwater and limited-term rights, are regarded as property interests, and as such may be bought, sold, or leased.

Surface water rights, in whole or part, may be cancelled by TCEQ for non-use after ten years under the authority of Subchapter E, Chapter 11 of the Water Code.