It has been said "Whiskey is for drinking and water is for fightin." In Texas, water is our most valuable resource, and has become increasingly scarce with our State's population explosion. Naturally, ownership, control and use of water carry tremendous legal and financial implications. Meanwhile, multiple layers of governmental regulation have made acquisition, development, use, marketing, and transmission of water in Texas increasingly complex. This site contains the musings of a water lawyer.
Wednesday, January 20, 2010
When Can a Texas Landowner Construct a Dam or Impoundment Without State/TCEQ Approval?
As a Texas lawyer whose practice is heavily engaged in both real estate and water law, I'm often asked about a landowner's ability to construct a dam on his own property for various purposes. Most often, this question relates to the ability to do so without obtaining a permit from the TCEQ.
The general rule in Texas is that surface water is the property of the State of Texas, and cannot be impounded without a permit from the TCEQ. See Texas Water Code Section 11.021. However, Section 11.142 provides an exemption to permitting for the construction of dams and reservoirs which impound up to 200 acre-feet of state water for domestic and livestock purposes. This exemption was extended by the Texas Legislature, in 2001, to apply to reservoirs constructed for fish and wildlife purposes, if constructed on “qualified open-space.”
Here's the text of the statute:
Sec. 11.142. PERMIT EXEMPTIONS. (a) Without obtaining a permit, a person may construct on the person's own property a dam or reservoir with normal storage of not more than 200 acre-feet of water for domestic and livestock purposes. A person who temporarily stores more than 200 acre-feet of water in a dam or reservoir described by this subsection is not required to obtain a permit for the dam or reservoir if the person can demonstrate that the person has not stored in the dam or reservoir more than 200 acre-feet of water on average in any 12-month period. This exemption does not apply to a commercial operation.
(b) Without obtaining a permit, a person may construct on the person's property in an unincorporated area a dam or reservoir with normal storage of not more than 200 acre-feet of water for commercial or noncommercial wildlife management, including fishing, but not including fish farming.
(c) Without obtaining a permit, a person who is drilling and producing petroleum and conducting operations associated with drilling and producing petroleum may take for those purposes state water from the Gulf of Mexico and adjacent bays and arms of the Gulf of Mexico in an amount not to exceed one acre-foot during each 24-hour period.
(d) Without obtaining a permit, a person may construct or maintain a reservoir for the sole purpose of sediment control as part of a surface coal mining operation under the Texas Surface Coal Mining and Reclamation Act (Article 5920-11, Vernon's Texas Civil Statutes ).
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