Texas water law, McPherson & Associates, PC

Texas’ population is expected to approximately double by 2060. Unfortunately, Texas’ water supply cannot be also doubled, at least not by manmade efforts. Simple math says we will have less water per person as our population grows. As Texas’ population exceeds the State’s water capacity, more focus will be on one’s legal rights to acquire a reliable supply of water. In fact, individual supply and consumption is already being affected by our current growth.

Texas’ water supply is increasingly regulated, requiring water users to identify and leverage their “water rights.” This may involve the right to obtain service from a retail provider, the right to drill a well and produce a certain volume of groundwater, or the right to buy or sell volumes of water or water rights. And more rights means there are more opportunities to fight.

Water Services for Landowners
Water Services for Developers
Water Permits
Water Conveyances and Transactions
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WATER SERVICES FOR LANDOWNERS

Texas water law has changed dramatically over the past 9 years, culminating most recently with new statutes and regulations of state-wide application that became effective September 1, 2005, and January 1, 2006. We are now beginning to experience the full effects of the changes begun in 1997, which has seemingly only accelerated further regulation and faster change. This increase in regulation has generated a simultaneous expansion of due process rights available to landowners and other water users, allowing them more opportunities to participate in the water regulatory process.

We provide assistance to landowners who need to determine or obtain their water rights. The following are examples:

Landowners who want to drill a water well (this may be restricted by applicable rules)
Landowners who want to begin or increase water supply to their land
Conducting due diligence to determine the water rights associated with a tract of land

In 2007, the Texas Legislature again adopted major water legislation, requiring (among other things) the establishment of an acceptable water level for every stream and river in the state. Permitting entities cannot allow the water level in rivers and streams to fall below these minimum thresholds. This will effectively take water out of circulation, and so yet again water rights will increase in value.

WATER SERVICES FOR DEVELOPERS

Developers, particularly those developing raw land, should conduct due diligence to make sure the needed water supply can be provided to the proposed development, prior to any project loan funding. This will increasingly involve a review of the water planning affecting the tract in question. We can help developers and contractors identify the water rights associated with tracts of land, and then use those rights to obtain water service.

Some local or small retail water providers may not have sufficient sophistication to accurately recognize water rights of developers and landowners. We are already seeing developers and contractors who are active around the fringes of our population centers encounter the need to first educate the retail water providers, as part of the effort to obtain sufficient water service, and we can help developers navigate these obstacles.

WATER PERMITS

Water permits are generally rights to pump groundwater for use, via water wells. Most of these are regulated by Groundwater Conservation Districts (GCDs). Some GCDs give priority permits for “historical use”, meaning to landowners who can prove a certain volume of historical water use. Often, this favors agricultural and livestock ranching owners and penalizes “water ranchers”, those who primarily would use their land to produce and sell groundwater. This is a highly controversial area of the law and we expect to see continued litigation between these competing interests. We assist landowners in obtaining water permits from regulatory entities, so if this is you, please give us a call.

WATER CONVEYANCES AND TRANSACTIONS

Some of those who have abundant water have at least the theoretical ability to sell water or water rights to those who don’t have, but need, water. However, this right may be regulated (or eliminated) by GCDs. We provide the help in making the theory a reality, on both sides of the equation. We can help the seller or buyer obtain any necessary permits and then draft the contracts to sell or acquire water.

This area is predicted to become more and more challenging, as water becomes subject to increasing regulation as water supplies dwindle and thus become more valuable. The so-called “rule of capture” is under constant attack, which may restrict supply in certain locations, while regulations of groundwater conservation districts and other similar local regulatory entities may adopt more rules curtailing the ability to export water out of the district.

In some instances water rights may be severed from the land and separately transferred. We can assist buyers and purchasers in drafting and performing the terms of contracts to purchase and sell water as well as water rights.

Please visit our Texas Water News page to see what’s current in water news, and contact us at 972-381-9800 to schedule an appointment when you need a gunslinger help fight over water. We look forward to helping you.

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