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

4. Water: Privately Owned

34 ] In the hydrologic cycle, surface water, before it becomes water in a watercourse, likely gets to the watercourse by running off the ground. Diffused surface water is rainwater or the water in our rare snowmelts—runoff— that stays on a landowner’s property before it enters a bed or channelized flow.1 This diffused surface water is owned by the landowner and is subject to capture without obtaining a permit from the state. If the landowner is able to capture the runoff water, defined as “casual or vagrant” water, before it joins a natural gully, stream, or watercourse, the landowner owns this water.2 This captured diffused water can be sold or used as the landowner sees fit. However, the moment this captured water enters a watercourse, its ownership transfers to the state. Water left standing in upland areas after a flood recedes may also qualify as diffused surface water, even though actual floodwaters cannot be captured because they are owned by the state. DIFFUSED SURFACE WATER: “RUNOFF” Although diffused surface water may be diverted or captured without a permit, the act of diversion cannot cause 4 WATER: PRIVATELY OWNED [ 35 Water: Privately Owned damage to other landowners. According to the Texas Water Code, Section 11.086, (a) No person may divert or impound the natural flow of surface waters in this state, or permit a diversion or impounding by him to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded. (b) A person whose property is injured by an overflow of water caused by an unlawful diversion or impounding has remedies at law and in equity and may recover damages occasioned by the overflow. (c) The prohibition of Subsection (a) of this section does not in any way affect the construction and maintenance of levees and other improvements to control floods, overflows, and freshets in rivers, creeks, and streams or the construction of canals for conveying water for irrigation or other purposes authorized by this code. However, this subsection does not authorize any person to construct a canal, lateral canal, or ditch that obstructs a river, creek, bayou, gully, slough, ditch, or other well-defined natural drainage. (d) Where gullies or sloughs have cut away or intersected the banks of a river or creek to allow floodwaters from the river or creek to overflow the land nearby, the owner of the flooded land may fill the mouth of the gullies or sloughs up to the height of the adjoining banks of the river or creek without liability to other property owners. Dietrich v. Goodman (2003) established that the term “surface water” in the section of the water code just quoted refers to diffused surface water. Stock tanks are artificially created to capture rainwater or diffused surface water; therefore, the water in the tank is owned by the landowner .3 Stock tanks are gems in a landowner’s pocket, so to speak, and as a hedge against our continuing droughts, it is my opinion one can never build too many stock tanks. They must be maintained, however. A variety of state agencies, such as the Texas Department of Agriculture and the Texas A&M AgriLife Extension Service, can provide guidelines for the design and maintenance of tanks. County extension agents know the local soils and can be very helpful in making decisions about the right depth and lining of a stock tank and in providing all kinds of local, experience-based information. The great news is that the county agents’ advice is free. Who Owns Water? 36 ] GROUNDWATER Ground water is assuming an interestingly significant role in our economy; questions involving its ownership and control have become extremely important.—Joe R. Greenhill and Thomas Gibbs Gee, “Ownership of Ground Water in Texas” Today, groundwater has fully assumed the role these famous jurists mentioned at the height of the nightmarish drought of the 1950s. Allocation and management of groundwater has since been and will remain in the future the focal point of Texas water policies. Groundwater is the water beneath the land surface that fills the pore spaces of rock and soil material and that supplies wells and springs. Groundwater can be found in pools and aquifers below the surface. Not all groundwater is potable or drinkable by humans; some is brackish or contains mineral salts (not necessarily sodium chloride, or table salt, but all kinds of complex salts), giving...