Sharing the Common Pool: Water Rights in the Everyday Lives of Texans

3. Water: State Owned

Part Two WHO OWNS WATER? [ 23 Generally, ownership of water is directly related to its source and type. It can be generally said that under Texas law, underground water belongs to the owner of the surface estate, while surface water belongs to the State of Texas and may be only used by the landowner with the State’s permission. —Russell S. Johnson, attorney at law, April 2010 First and foremost in understanding water ownership in Texas is determining the “geological container” in which the water resides at any point in time. The water molecule changes ownership many times in the hydrologic cycle depending upon the geological containers it passes through on its flow to sea level. With the passage of Senate Bill 332 in 2011, a decadeslong debate on ownership of groundwater came to a close, and it appears that for now at least, ownership of water in Texas is clear: Surface water is owned by the state; groundwater and “diffused” surface water (runoff) are owned by the surface landowner. 3 WATER: STATE OWNED Who Owns Water? 24 ] SURFACE WATER IN RIVERS, STREAMS, AND LAKES Surface water in Texas lies in a geological container in which water flows in a natural bed such as a river, creek, or even the smallest stream. Surface water is owned by the State of Texas and held in trust for the people. This concept of ownership again is not without the earliest of precedents. The colonial Spanish brought this idea with them to Texas, where the king of Spain owned the surface water in trust for all “his” people. The safe assumption a landowner should make is that any water that runs in a “channelized” flow is owned by the State of Texas, including the underflow of any stream or other body of water. State-owned water is defined in the following way by the Texas Water Code, Section 11.021: (a) The water of the ordinary flow, underflow, and tides of every flowing river, natural stream, and lake, and of every bay or arm of the Gulf of Mexico, and the storm water, floodwater, and rainwater of every river, natural stream, canyon, ravine, depression, and watershed in the state is the property of the state. (b) Water imported from any source outside the boundaries of the Upper Rio Grande. Photo by author. [ 25 Water: State Owned state for use in the state and which is transported through the beds and banks of any navigable stream within the state or by utilizing any facilities owned or operated by the state is the property of the state. Of course, determining which water is state owned can be more complex than it seems, and contradictory opinions abound. One of the important considerations in determining if the surface water is state owned is whether or not the water is “ordinary” flow, that is, following its normal “watercourse.” According to attorney Judon Fambrough of the Texas Real Estate Center at Texas A&M University, The key element determining whether surface water belongs to the state is the presence or absence of a watercourse. Texas owns all surface water in a natural body of water or watercourse. According to Texas case law, a watercourse contains three features: a defined bed, visible banks and a permanent supply of water. The supply of water need not be continuous to satisfy the definition , but a recurring flow is essential. Streams and creeks are publicly owned because they have a permanent supply of water. Draws, gullies , ravines and swales have defined beds and visible banks but they do not have a permanent supply of water. Water in these is considered diffused surface water and is privately owned.1 The Texas case that clearly defined “watercourse” was Domel v. City of Georgetown (1999), which also quoted an earlier case, Hoefs v. Short (1925). To expand on Fambrough’s quote, the opinion in Hoefs v. Short was that the bed and banks may be “slight, imperceptible, or absent” and that the water current “need not be continuous”; the flow can be “intermittent . . . or even dry for long periods of time” and still be classified as a watercourse; therefore, the water found there is owned by the state. According to the Texas Supreme Court in Hoefs, “A permanent source of [water] supply . . . merely means that the stream must be such that similar conditions will...