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Parks Law PLLC – Texas’s Trusted Water Rights Attorneys

Understanding Texas Water Rights: A Guide for Houston Residents and Businesses

Water is the lifeblood of Texas. A vital resource that shapes its industries and supports its communities. It also maintains delicate ecosystems. In Houston, where the energy sector is enormous and sprawling suburbs are vulnerable to drought and flooding, understanding water rights is crucial for survival, growth and legal protection.

The legal framework for water resources is complex, with historical doctrines, current regulations and evolving case law. Navigating this system requires trusted legal expertise and technical knowledge, whether you are a property owner interested in groundwater or a business relying on process water or a concerned citizen seeking sustainability.

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Meet Ryan Parks: Founder & Attorney

What Are Texas Water Rights?

Texas water law is a complex system that governs the allocation, use, and ownership of surface water and groundwater in the state. This legal framework is divided into two distinct regimes, known as “two separate worlds” under Texas law. Each regime has its own set of rules, regulatory agencies, and legal precedents. The complexity of the system stems from the fact that water is both a renewable and finite resource. This leads to conflicts between different users, such as farmers, cities, and industries, as well as between environmental needs. The laws and regulations in place aim to balance these competing interests and ensure the sustainable use of this precious resource.

The Dual System: Surface Water vs. Groundwater

Surface Water: A State-Owned Resource

Surface water in rivers, lakes, and streams is considered public property, owned by the state in trust for the benefit of all citizens. Access is governed by a hybrid system:

  • The Riparian Doctrine: Historically, this doctrine gave landowners whose properties bordered watercourses the right to use water in a reasonable manner. However, its application in modern-day Texas has been limited and has largely been replaced by the appropriation system. Nevertheless, riparian principles still influence disputes regarding “reasonable” water use.
  • The Prior Appropriation System, also known as “first-in-time, first-in-right”, is the dominant framework for surface water use in Texas. Individuals and organizations must obtain water right permits from the Texas Commission on Environmental Quality (TCEQ) to use this water. Permits are prioritized based on seniority, so if there is a shortage, the oldest holder will get their full allocation before newer users get any water. The permits specify the exact amount, purpose, and point of diversion of the water. Any changes to or sale of these rights requires approval from TCEQ.

Groundwater: The Rule of Capture and Its Limitations

Groundwater law in Texas is based on the Rule of Capture, which was established in an East case in 1904. This rule gives landowners the right to extract as much water as they want from beneath their property, even if the water flows from their neighbors’ property. However, this can lead to potential conflicts and overdrafting of aquifers, as it allows for the law of “the biggest pump.”

However, this absolute right is now heavily circumscribed by:

  • Groundwater Conservation Districts (GCDs): These local districts, created by the legislature, are the primary regulators of groundwater. A GCD can set production limits, require permits for large wells, regulate well spacing, and create desired future conditions (DFCs) for the aquifer. Compliance with GCD rules is mandatory and can lead to legal disputes.
  • The “Ownership” of Groundwater: While the Rule of Capture governs the withdrawal of groundwater, Texas courts have confirmed that landowners have ownership over the groundwater beneath their land as real property. This has significant implications, including the ability to separate and sell groundwater from the surface estate, and unauthorized subsurface access or drainage by neighboring operations, such as through slant wells, can lead to legal claims of trespassing or conversion.

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    Navigating Water Rights in Texas, Houston

    Houston, as one of the largest cities in the United States, faces unique challenges related to water management. Due to its location near major rivers such as the Brazos and San Jacinto, the city is a hub for both surface and groundwater issues. Additionally, its dependence on the energy sector necessitates balancing water usage for oil and gas extraction with residential and commercial demands.

    Critical Issues and Legal Flashpoints in the Houston Region:

    Subsidence and regulatory response: Massive withdrawal of groundwater from the Chicot, Evangeline, and Jasper aquifers in the Houston area has caused significant land subsidence, increasing flood risks and damaging infrastructure. In response, Harris-Galveston and Fort Bend districts have implemented strict measures, including mandatory conversion of groundwater to surface water supply. Litigation often arises from disputes over surface water rights, enforcement actions against non-compliant users, and the costs associated with conversions.

    Inter-aquifer transfer and mining operations: Some industrial and municipal users may pump water from one aquifer and transfer it to another region for use, or inject water into an aquifer for storage and recovery. These activities can lead to lawsuits from local landowners or government authorities alleging damage to the original aquifer or violation of local regulations.

    Water Rights in Oil and Gas Operations: The energy industry is a significant water user, especially for hydraulic fracturing. Securing reliable water supplies often requires negotiating temporary leases for groundwater from landowners, obtaining GCD permits, or purchasing surface water rights. Conflicts arise over contractual terms, allegations of over-pumping, water source contamination, and liability for reduced aquifer levels that affect neighboring wells.

    Environmental Flows and the “Public Interest” Standard: The Texas Commission on Environmental Quality (TCEQ) must consider the “public interest” when granting new water rights or amending existing ones. This includes the need to maintain sufficient environmental instream flows to support bays, estuaries, and ecosystems, particularly in the San Jacinto and Trinity River basins. Projects seeking new water rights often face opposition from environmental groups who advocate for these ecological needs, leading to litigation.

    Drought-Driven Conflicts and “Takings” Claims: During periods of severe drought, the prior appropriation system can lead to cutbacks for junior water users. Meanwhile, government agencies may impose emergency pumping restrictions. These actions can cause claims that the government has taken private property (water rights) without just compensation. This is a complex area of constitutional law.

    Why Choose Parks Law PLLC for Your Water Rights Needs?

    When it comes to complex legal issues, such as those related to water rights, experienced and dedicated representatives can be invaluable. Parks Law PLLC specializes in protecting the interests of clients in the energy industry, including oilfield workers, maritime personnel, and landowners. Over 20 years of experience combined with a deep understanding of petroleum engineering and geology make our attorneys uniquely equipped to handle even the most challenging cases.

    Our founder, Attorney Ryan Parks, is a licensed attorney with a background in petroleum engineering and geology. This technical training gives us a decisive advantage when it comes to water rights matters. We understand the mechanics of aquifers, well hydrology, water quality analysis, and the engineering of large-scale water use. We provide comprehensive counsel and advocacy for:

    • Transactional and Regulatory Work: Obtaining water rights permits from the Texas Commission on Environmental Quality (TCEQ); navigating the permitting process within groundwater conservation districts; drafting and negotiating groundwater lease and sale contracts; conducting due diligence on water rights for property transactions.
    • Litigation and Dispute Resolution: Representing clients in legal disputes involving the rule of capture, groundwater trespass, interference with existing water rights, breach of water supply contracts, and challenges to regulatory actions by groundwater conservation districts or the TCEQ.
    • Energy Sector Representation: Advising oil and gas companies on water sourcing strategies, compliance with local rules, and defense against claims related to water use during operations.

    If you are facing a water rights issue, whether it’s a dispute with a neighbor, a regulatory challenge, a critical contract negotiation, or planning for future water needs, do not navigate these complex waters alone. Contact Parks Law PLLC for a consultation. Our team has a unique combination of legal expertise, technical knowledge, and practical experience that is needed to protect your interests and achieve a favorable outcome.


    Common Texas Water Rights FAQs

    What are water rights in Texas?

    They are legal rights governing the use of surface water (rivers, lakes) and groundwater, based on doctrines like riparian rights and prior appropriation, along with the Rule of Capture for groundwater.

    What is the “Rule of Capture”?

    It’s a Texas principle stating a landowner can pump unlimited groundwater from beneath their property, even if it drains a neighbor’s well, though local groundwater districts may impose regulations.

    Who might need a water rights attorney?

    Landowners, farmers, energy companies, developers, and municipalities facing disputes over water access, regulatory compliance, or conflicts with neighboring water usage.

    What are common water rights issues in Houston?

    Key issues include conflicts over aquifer depletion, navigating permits from groundwater conservation districts, balancing industrial and municipal needs, and ensuring compliance for new development.

    How does the energy industry affect water rights?

    Operations like hydraulic fracturing require significant water, creating competition for resources and potential legal disputes with other users or regulators.

    Why choose a firm with energy industry experience for water law?

    Understanding the technical demands of energy extraction allows us to effectively advocate in disputes involving industrial water use, regulatory frameworks, and resource management.

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