Obtaining a New Right to Appropriate State Surface Water
New Water Right Permits
A person or entity desiring to appropriate surface water (i.e., state water) or to begin construction of any project designed for the storage, taking, or diversion of state water must first obtain a water right permit before doing so. Permit applications for permanent and temporary water right appropriations are available to potential applicants through the Texas Commission on Environmental Quality (TCEQ). Under the TCEQ’s permitting process, the TCEQ may grant a precisely defined surface water right to appropriators of state water consisting of a right to use a specific amount of water from a specific body of water by a diversion identified by a specific location for a specific use at that location. Once a surface water right has been put to its specified beneficial use in conformance with state law, the right is considered “perfected” and becomes a vested property interest passing with conveyance of title to the land unless the right has been expressly reserved by the Grantor or granted for the irrigation of land not owned by the applicant.
New Appropriations – Temporary and Permanent Appropriative Permits
If applying for a new or temporary right to appropriate state water, potential applicants must complete and submit one of the following permit applications to the TCEQ (note: FORM NUMBERS MAY CHANGE):
- Permanent Water Appropriation Permit; TCEQ Form 10214.
- Temporary Appropriation Permit (10 acre feet or less for one calendar year or less); TCEQ Form 20425.
- Temporary Appropriation Permit (more than 10 acre feet of water per year, or diversions lasting more than one calendar year); TCEQ Form 10202.
Although the above forms are the most commonly used for new permanent or temporary appropriations, other appropriations are also permitted by the TCEQ; those additional permits include:
- Seasonal Permits, typically for irrigation only to fill an off-channel reservoir during the wet season.
- Contractual Permits, amendments to an existing water right permit authorizing a use by a third party.
- Permits authorizing the conversion of an exempt domestic and livestock reservoir to other beneficial uses.
- Permits for storage, not necessarily for a beneficial use.
- Term Permits, issued by the TCEQ for a term of years, and often provides that the permit is renewable at the expiration of that term with the retention of the original priority date.
- Emergency Authorizations to appropriate state water if emergency conditions present an imminent threat to public health and safety and there are no feasible, practicable alternatives.
The TCEQ will only grant an appropriation permit (new permit or amended permit) if, after filing the proper application, paying the required fees, and notice and hearing, the applicant can show that: (1) unappropriated water is available in the source of supply; (2) the appropriation is intended for a beneficial use; and (3) reasonable diligence will be used to avoid waste and to achieve water conservation.
1. Is Unappropriated Water Available?
The availability of unappropriated surface water is a frequent source of controversy in contested permit applications. As one would guess, the majority of state water in Texas has already been appropriated, and it is often times difficult for an individual to demonstrate that water is available for appropriation on water courses where water has already been appropriated by other users.
According to the Texas Supreme Court, “unappropriated water” means the amount of water remaining after taking into account the complete satisfaction of all existing un-canceled water right permits and filings for the water course valued at their recorded levels. In order to determine whether or not water is available for appropriation, the TCEQ uses its water availability models, sometimes referred to as “WAMs,” to simulate water usage for each river basin in the state by relying on a simulated historic period, for a specific location, under specified diversion or storage requirements, after allowing water for the satisfaction of existing water right holders. For approval of an application for direct appropriation from a water body, approximately 75% of the water requested must be available approximately 75% of the time when distributed on a monthly basis and based upon the available historic streamflow record.
2. Is the Appropriation Intended for a Beneficial Use?
In order for the TCEQ to issue a water right permit, the applicant must demonstrate that the proposed appropriation is intended for a beneficial use, does not impair existing water rights or vested riparian rights, is not detrimental to the public welfare, considers various environmental and water quality assessments required by statute, and addresses a water supply need in a manner consistent with the state water plan and relevant approved regional plans.
- Beneficial Uses: According to Texas Water Code, §11.023, state water may be appropriated, stored, or diverted for the following beneficial uses: (1) domestic and municipal, (2) agriculture and industrial, (3) mining, (4) hydroelectric power, (5) navigation, (6) recreation, (7) public parks, (8) game preserves and wildlife management, and (9) “any other beneficial use;” the former uses taking precedent over latter beneficial uses. The term “beneficial use” is very broad and can include any number of uses so long as the water requested is not excessive in light of the use intended. Often times, water right applicants will list more than one intended use for the water in order to allow for future changes in activities without having to continually submit to the TCEQ water right permit amendment applications. For example the TCEQ may grant a multiuse permit for an appropriator that wants to make water available for irrigation, mining, oil and gas recovery, public parks, game preservers, water quality and aquatic and wildlife habitat.
- Non-Impairment of Existing Water Rights: The TCEQ may grant a water right permit (or amendment) only after it has determined that the proposed appropriation will not impair existing water rights or vested riparian rights located downstream of the proposed diversion point. As part of its hydrologic analysis, the TCEQ will examine the impact of the proposed appropriation and whether or not the proposed appropriation will impair water availability for existing permit holders on the same water course. If the TCEQ finds that the appropriation will impair the rights of senior downstream users, the TCEQ may include restrictions on the diversion and use of water in the water right permit issued to the new appropriator.
- Public Welfare: The TCEQ may grant a water right permit only after it finds the appropriation will not be detrimental to the public welfare. “Public welfare” being the impact of the appropriation, taking into account the environmental, social, and economic consequences on other users of that water, including the public.
- Conservation and Drought Contingency Requirements: As part of its review of a water right permit application, the TCEQ will request that an applicant provide evidence demonstrating the applicant will use reasonable diligence to avoid wasting the appropriated water and to achieve “water conservation” over the life of the permit. Water “conservation” being the development of water resources and those practices, techniques, and technologies that reduce consumption, reduce loss or waste, improve efficiency in use, increase recycling and reuse, or prevent pollution of water so that supplies are available for future or alternative uses. In order to meet the conservation requirement, all applicants for new or amended water right permits must develop and submit with their application a water conservation plan and adopt reasonable conservation measures with varying criteria depending on the water use. In addition to developing water conservation plans, wholesale and retail public water suppliers and irrigation districts must also develop drought contingency plans for implementation during periods of water shortages and drought.
- Other Requirements: In addition to the above referenced requirements, the TCEQ will only grant an application for a water right permit or amendment if the proposed appropriation addresses a water supply need in a manner consistent with the state water plan and any relevant approved regional water plan, unless otherwise waived by the TCEQ. Furthermore, the TCEQ will also take into consideration various other statutes concerning the environmental and conservation impact of the water right permit, including: (1) the impact on groundwater or groundwater recharge; (2) the impact on Texas bays and estuaries; (3) the impact on current instream uses; and (4) the impact of fish and wildlife habitat.
Gregory Klipp, Attorney at Law
DISCLAIMER: The foregoing information is not legal advice and is general in nature and not applicable to all situations. The reader should not rely on these general statements and should consult with knowledgeable persons before taking any actions.