A Brief History of Texas Water Rights
In general, surface water in the State of Texas is the property of the state and can be made available for private use through a statutory appropriations process; i.e., the granting of a water right. While most surface water; i.e., state water, is subject to the statutory appropriations process, prior to the enactment of the 1913 Irrigation Act, surface water use in the State of Texas was regulated by the common law principals of riparian water rights.
1. Riparian Rights (Common Law)
A riparian water right is a right recognized by common law that entitles the owner of property adjacent to a watercourse to make reasonable use of the normal flow of that watercourse without the need for a water right permit. A riparian property owner may impound and use any amount of water that is reasonably necessary for any reasonable purpose, subject to the limitation that the owner may not unreasonably interfere with the use of that water by other riparian owners adjacent to the same watercourse. Between January 20, 1840, and July 1, 1895, riparian rights attached to land that the State of Texas, formerly the Republic of Texas, patented for use by private landowners.
2. Statutory Appropriations – Moving Away From Riparian Rights
In the late 1800’s the State of Texas began moving away from the common law application of riparian rights, which was controlled by the judiciary, and began developing a legislative appropriation doctrine that allowed for the appropriation of state water based on statutes enacted by the Texas Legislature. The first of which was the Irrigation Act of 1889.
The Irrigation Act of 1889 declared that all unappropriated surface water in rivers and natural streams located in the arid portions of the state were state property that could be made available for private use through an appropriation. Under the 1889 act, a landowner could secure an appropriative right to use state water by filing a sworn statement with the county clerk in their respective county describing the diversion facilities to be implemented by the landowner and the contemplated use of the water; said authorized uses being irrigation, domestic, and “other beneficial uses.”
Subsequently, the Irrigation Act of 1895 expanded upon the 1889 act’s definition of “state water” to encompass water from all portions of the state where “insufficient rainfall made irrigation beneficial for agricultural purposes.”
In 1913, the state legislature further expanding upon the definition of “state water” by enacting the Irrigation Act of 1913 and adopting many of the precursor statutes to the provisions currently found in Chapter 11 of the Texas Water Code. Of the changes, the 1913 Irrigation Act declared all unappropriated waters in the state to be “state water” available for appropriation, not just water located in arid regions used for irrigation. Furthermore, the 1913 act created the State Board of Water Engineers (the “Board”) and tasked the Board with the implementation of a water right permitting system in which the Board would grant water right permits to applicants only after determining through a hearing (1) whether water in the designated watercourse was available for appropriation, (2) whether or not the proposed use conflicted with an existing water right, and (3) whether or not the appropriation was detrimental to the public welfare. Prior to the 1913 act, all water disputes between water right claimants were resolved by the courts. Additionally, all holders of preexisting appropriative rights claimed under the prior 1889 and 1895 Acts were required to re-submit to the Board a certified copy of their sworn statements to the county clerks so that the Board could recognize their appropriative rights when allocating new appropriations. The act of submitting a certified copy of their sworn statements to the Board was given the term “certified filing,” a term that is still used today to characterize water rights claimed under the 1889 and 1895 acts.
In addition to the Irrigation Acts of 1889, 1895, 1913, and 1917, the Texas legislature in the middle half of the 20th century passed two additional legislative actions that aided in the establishment of the modern water right appropriation framework Texas operates under today. The first of these acts was the Wagstaff Act of 1931, which established a hierarchy of permitted appropriative uses for state water and the ability for municipalities to appropriate water on watercourses for municipal and public uses, which were otherwise fully appropriated, without the need to exercise their power of eminent domain to do so. The second, and most important of the later legislative acts, was the Texas Water Rights Adjudication Act of 1967. The Water Right Adjudication Act provided the state a mechanism by which it could compile and quantify the various water rights recognized in the state over the course of its history and place those water right claims into one uniform regulatory framework to be administered by the Commission.
3. Water Right Adjudication:
Under the water right adjudication process established by the Texas Water Rights Adjudication Act, water rights are quantified and categorized in the following ways:
- First, the Texas Commission on Environmental Quality (“TCEQ”), under its own action or upon a petition by water users, notifies all persons claiming a water right on a particular segment of a river or stream to file a claim with the TCEQ detailing the nature and extent of their historical use and claim to the water right.
- Following evidentiary hearings and an opportunity to dispute the TCEQ’s preliminary conclusions, the TCEQ then enters an administrative order defining all water rights in that particular segment of the river.
- For each right the TCEQ recognizes, the order will state the nature of the water use, quantity of water, priority of use, authorized diversion point, diversion rate, and other conditions of the water right.
- Following an opportunity for all parties dissatisfied with the TCEQ’s ruling to litigate the issues, the TCEQ then automatically files its administrative determination with a district court for final action by the judiciary.
- In issuing its final order on the adjudicated water right, each water right claimant is issued a Certificate of Adjudication detailing the nature of the water right use, quantity of water authorized for appropriation, priority of use compared to other users, authorized diversion point, diversion rate, and other conditions associated with the water right.
The final decision by the judiciary in each water right adjudication proceeding is final and conclusive as to all existing and prior rights and claims to the water rights in the adjudicated river segment and is binding on all claimants to water rights outside that stream or segment. As of today, nearly all general stream and river adjudications for the State have been complete, save and except for some portions of the Rio Grande.
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.