# Texas Water Rights Reference Guide

> **DISCLAIMER**: This reference guide is for informational purposes only and does not constitute legal advice. All outputs generated using this guide are FIRST DRAFTS requiring review and approval by a licensed Texas attorney. Water law is highly specialized; complex matters should be referred to attorneys with water law expertise.

---

## Overview: Texas Dual Water System

Texas has a **bifurcated water rights system**:

| Water Type | Ownership | Governing Law | Regulatory Body |
|------------|-----------|---------------|-----------------|
| **Surface Water** | State of Texas | Prior Appropriation | TCEQ |
| **Groundwater** | Landowner (Rule of Capture) | Common Law + GCD Rules | Groundwater Conservation Districts |

This distinction is critical for title examination because surface water rights are **appurtenant to the land** (run with the land unless severed), while groundwater rights are part of the **real property interest** but may be subject to local district regulation.

---

## Surface Water Rights

### State Ownership Doctrine

Per **Texas Water Code § 11.021**, the state owns all water in:
- Rivers and streams
- Lakes and ponds (not wholly on private land)
- Bays and arms of the Gulf of Mexico
- Stormwater, floodwater, and rainwater that enters a watercourse

### Prior Appropriation System

Texas surface water operates on **"first in time, first in right"**:
- Senior rights have priority over junior rights during shortages
- Rights are granted by permit from TCEQ
- Permits specify: amount, purpose, place of use, and priority date

### Types of Surface Water Rights

#### 1. Certificated Rights
- Adjudicated rights from the 1967-present water rights adjudication
- Strongest form of surface water right
- Recorded in TCEQ water rights database

#### 2. Permitted Rights
- Rights granted by permit after September 1, 1967
- Subject to TCEQ permit conditions
- May include environmental flow requirements

#### 3. Exempt Uses (No Permit Required)
Per **Texas Water Code § 11.142**:
- Domestic and livestock use (up to 200 acre-feet/year)
- Wildlife management
- Drilling and production of oil, gas, or minerals (certain conditions)

#### 4. Riparian Rights (Limited)
- Pre-1967 riparian rights largely converted to permitted rights
- Some limited riparian rights may still exist
- **Title Examiner Note**: Verify conversion status for properties along watercourses

### Surface Water Rights in Title Examination

**Conveyancing Considerations**:
- Surface water rights are **real property** under Texas law
- Rights pass with the land unless specifically reserved or excepted
- Look for language: "together with all water rights appurtenant thereto"
- Reservations of water rights should be treated like mineral reservations

**Chain of Title Issues**:
- Check for prior severances or reservations of water rights
- Review TCEQ records for permits associated with the property
- Verify permit holder matches record title owner

---

## Groundwater Rights

### Rule of Capture

Texas follows the **Rule of Capture** (also called the "law of the biggest pump"):

Per **Edwards Aquifer Authority v. Day** (2012), groundwater is owned **in place** by the surface owner as part of the real property estate.

**Key Principles**:
- Landowner owns groundwater beneath their land
- No liability for "draining" neighbor's groundwater (absent waste, malice, or subsidence)
- Groundwater rights are severable from surface estate
- Severance creates a separate real property interest

### Groundwater Conservation Districts (GCDs)

**Texas Water Code Chapter 36** authorizes GCDs to regulate groundwater production.

**GCD Authority Includes**:
- Permitting requirements for wells
- Production limits and spacing rules
- Registration of existing wells
- Monitoring and reporting requirements
- Aquifer management plans

**Title Examiner Note**: Over 100 GCDs cover approximately 70% of Texas. Properties in GCD jurisdictions are subject to district rules that may affect the practical exercise of groundwater rights.

### Types of Groundwater Rights

#### 1. Appurtenant (Unsevered) Rights
- Groundwater rights remain with surface estate
- Pass automatically with conveyance of surface
- Most common situation for residential properties

#### 2. Severed Groundwater Rights
- Separately conveyed or reserved groundwater estate
- Creates dominant/servient estate relationship
- Groundwater owner has implied easement for access/production

#### 3. Groundwater Leases
- Similar to mineral leases
- Grant right to produce for specified term
- May include royalty or production payments

### Groundwater Severance Documents

**Common instruments that sever groundwater**:
- Deed reserving "all water and water rights"
- Groundwater Purchase Agreement
- Groundwater Lease
- Deed conveying only groundwater rights

**Language to Watch For**:
```
"Grantor reserves unto Grantor, Grantor's heirs and assigns, all groundwater
and groundwater rights in, on, and under the Property, together with the
right of ingress and egress to explore for, develop, and produce such
groundwater..."
```

---

## Title Examination Checklist: Water Rights

### For All Properties

- [ ] Review chain of title for water rights reservations or severances
- [ ] Check for language conveying or reserving "water rights"
- [ ] Identify any recorded water rights agreements or leases
- [ ] Note proximity to rivers, streams, lakes, or other watercourses

### For Rural/Agricultural Properties

- [ ] Determine if property is within a GCD (check TWDB GCD map)
- [ ] Search for recorded well permits or registrations
- [ ] Review for irrigation district assessments or liens
- [ ] Check for water supply contracts or agreements
- [ ] Identify any Edwards Aquifer Authority permits (if applicable)

### For Properties Along Watercourses

- [ ] Search TCEQ Water Rights Database for associated permits
- [ ] Verify permit holder matches current record owner
- [ ] Check for junior/senior priority issues
- [ ] Review for riparian rights claims or conversions
- [ ] Note any water rights adjudication decrees

### For Properties with Severed Groundwater

- [ ] Trace groundwater estate separately through chain
- [ ] Identify current groundwater rights owner
- [ ] Review for access easements benefiting groundwater estate
- [ ] Check for production limits or GCD permits
- [ ] Determine if groundwater is being actively produced

---

## Common Title Exceptions

### Standard Water-Related Exceptions

#### Exception for Surface Water (State Ownership)
```
All surface water rights, if any, owned by the State of Texas pursuant to
Texas Water Code Section 11.021.
```

#### Exception for Groundwater District Regulations
```
All rules, regulations, permits, and orders of [Name] Groundwater
Conservation District, to the extent same affect the Property.
```

#### Exception for Severed Groundwater Estate
```
Reservation of all groundwater and groundwater rights by [Name] in deed
recorded in [Volume/Page or Document Number], Official Public Records,
[County] County, Texas, together with all easements appurtenant thereto.
```

#### Exception for Water Rights Permit
```
Water Rights Permit No. [Number] issued by the Texas Commission on
Environmental Quality to [Permit Holder], as same may affect the Property.
```

### Special Exceptions to Consider

#### Edwards Aquifer Properties
```
All rules, regulations, permits, and orders of the Edwards Aquifer
Authority pursuant to the Edwards Aquifer Authority Act, to the extent
same affect groundwater production from the Property.
```

#### Irrigation District Assessment
```
All assessments, liens, and charges of [Name] Irrigation District,
to the extent same affect the Property.
```

#### Water Supply Contract
```
Water Supply Agreement dated [Date] by and between [Parties], recorded
in [Recording Information], and all amendments and supplements thereto.
```

---

## Requirements and Curative Matters

### Severed Groundwater Rights

**If groundwater has been severed and buyer wants unified estate**:

| Requirement | Documentation |
|-------------|---------------|
| Quitclaim from groundwater owner | Quitclaim Deed conveying groundwater estate |
| Release of groundwater lease | Recorded Release of Groundwater Lease |
| Subordination (if applicable) | Subordination Agreement |

### Water Rights Permit Transfer

**If TCEQ permit exists and buyer needs water rights**:

| Requirement | Documentation |
|-------------|---------------|
| Permit transfer application | TCEQ Form 10101 |
| Consent of current permit holder | Assignment and Consent document |
| TCEQ approval | TCEQ Transfer Approval Letter |

**Note**: Permit transfers may take 6+ months; consider interim water supply contracts.

### GCD Permit Transfer

**If property has GCD well permit**:

| Requirement | Documentation |
|-------------|---------------|
| Permit transfer to buyer | GCD permit transfer application |
| Well registration update | Updated well registration |
| Outstanding fees paid | Receipt from GCD |

---

## Special Considerations by Property Type

### Residential Properties

- Groundwater issues rare unless served by private well
- Verify municipal water service availability
- If private well: check well permit, water quality, GCD registration

### Agricultural/Ranch Properties

- Most likely to have water rights issues
- Check for irrigation permits (surface or groundwater)
- Review agricultural water use exemptions
- Verify GCD permit status and production limits
- Review for water rights severances (common in West Texas)

### Commercial/Industrial Properties

- Higher water use may require permits
- Check for industrial use permits from TCEQ
- Review for water supply contracts
- Verify adequate permitted capacity for intended use

### Properties in Edwards Aquifer Region

**Special requirements apply** (Travis, Hays, Comal, Bexar, Medina, Uvalde, and Kinney Counties):

- Edwards Aquifer Authority (EAA) permits required for production
- Permits are **capped** and highly valuable
- Permits may be severed and sold separately
- Verify EAA permit status and ownership

---

## Key Regulatory Bodies

### Texas Commission on Environmental Quality (TCEQ)
- **Jurisdiction**: Surface water permits and water quality
- **Website**: www.tceq.texas.gov
- **Water Rights Database**: Available online
- **Contact**: (512) 239-1000

### Texas Water Development Board (TWDB)
- **Jurisdiction**: Water planning, data, and financing
- **GCD Map**: www.twdb.texas.gov/groundwater/conservation_districts
- **Groundwater Database**: Submitted Drillers Reports (SDR) database
- **Contact**: (512) 463-7847

### Groundwater Conservation Districts
- **Jurisdiction**: Varies by district
- **Note**: Over 100 districts with different rules
- **Verify**: District boundaries and specific requirements

### Edwards Aquifer Authority
- **Jurisdiction**: Edwards Aquifer region
- **Website**: www.edwardsaquifer.org
- **Permits**: Limited; highly regulated
- **Contact**: (210) 222-2204

---

## Authority

This reference guide is based on the following authorities:

**Statutes**:
- Texas Water Code, Chapters 11-12 (Surface Water)
- Texas Water Code, Chapter 36 (Groundwater Conservation Districts)
- Texas Property Code (conveyancing)
- Edwards Aquifer Authority Act (Texas Special District Local Laws Code)

**Case Law**:
- *Edwards Aquifer Authority v. Day*, 369 S.W.3d 814 (Tex. 2012) — groundwater ownership in place
- *City of Del Rio v. Clayton Sam Colt Hamilton Trust*, 269 S.W.3d 613 (Tex. App. 2008) — surface water state ownership
- *Sipriano v. Great Spring Waters of America*, 1 S.W.3d 75 (Tex. 1999) — rule of capture affirmed

**Regulatory Sources**:
- TCEQ Water Rights Permits and Amendments
- Texas Administrative Code, Title 30 (Environmental Quality)
- Texas Administrative Code, Title 31 (Natural Resources)
- Individual GCD Rules (vary by district)

**Secondary Sources**:
- Texas Water Law (State Bar of Texas)
- Texas Title Examination Standards (Standards 11.10-11.40 re: easements)

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## Cross-References

- **tx-exam-standards.md**: Standards 11.10-11.40 (Easements)
- **tx-minerals.md**: Severed estates, dominant/servient relationships
- **tx-exceptions.md**: Exception drafting
- **tx-requirements.md**: Curative requirements

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*Last Updated: February 2026*
*Version: 1.0*