water use and conservation: a landowner’s perspective · 2013-10-17 · can do to help preserve...

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WATER USE AND CONSERVATION: A LANDOWNER’S

PERSPECTIVE

Written by:

JOSEPH B.C. FITZSIMONS

ROBERT M. PARK

Uhl, Fitzsimons & Jewett, PLLC

4040 Broadway, Ste. 430

San Antonio, Texas 78209

210-829-1660

[email protected]

[email protected]

Presented by:



State Bar of Texas

CHANGING FACE OF WATER RIGHTS 2012

February 23-24, 2012

San Antonio

CHAPTER 14

mailto:[email protected]

mailto:[email protected]

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CURRICULUM VITAE



4040 Broadway, Suite 430

San Antonio, Texas 78209

Phone: (210) 829-1660

Fax: (210) 829-1641

Joseph B.C. Fitzsimons is a natural resources, oil and gas and water law attorney and third-generation South

Texas rancher. He and his sister, Pamela Fitzsimons Howard, operate the San Pedro Ranch in Dimmit and Maverick

Counties, Texas, raising registered Beefmaster cattle. He and his wife, Blair, have three children, Fay, Jonny and

Kate.

He has served as Vice-President of the Texas Wildlife Association and is a Director of the Texas and

Southwestern Cattle Raisers Association. He is a former Chairman of the Parks and Wildlife Department‘s Private

Lands Advisory Board and, in 1999, was named by then Governor George W. Bush to serve on the Governor‘s Task

Force on Conservation.

In May of 2001, Governor Rick Perry appointed Mr. Fitzsimons to the Texas Parks and Wildlife

Commission for a six year term, and Mr. Fitzsimons is now a Past Chairman of that agency. In January of 2002, he

was named to represent the Texas Parks and Wildlife Commission on the Texas Water Advisory Council, which has

the statutory responsibility to advise the Office of the Governor, Speaker of the House and the Lieutenant Governor

on issues affecting Texas water policy. In October 2003, Governor Perry appointed him as Chairman.

Recently, Governor Perry appointed Mr. Fitzsimons to represent the interest of fish and wildlife on the

Environmental Flows Advisory Committee. Chairman Fitzsimons identified environmental flow as a priority for his

term on the Committee, and continues to work to ensure water for wildlife.

Representative Oil, Gas and Mineral Experience

Representation of mineral trust in the negotiation of Geophysical Survey Agreement, Option and Right of

First Refusal Agreement, Surface Use Agreements, and Oil and Gas Lease on over 53,000 mineral acres in

Dimmit and Maverick Counties.

Representation of mineral owners in matters pertaining to Oil and Gas Lease in Robertson County, Texas,

considered to be one of the most productive natural gas leases in the continental United States during the past

decade.

Representation of numerous royalty owners and landowners in complex oil and gas litigation and oil and gas

lease negotiations and audits.

Representation of landowners in negotiation of Surface Use Agreements and Oil and Gas Leases on over

44,000 acres in Zavala County.

Representation of landowners in litigation involving the termination of a Pipeline Easement covering 35,000

acres in LaSalle and Webb Counties, resulting in settlement favorable to client.

Representation of non-profit landowner in the negotiation of Geophysical Survey Agreements, Surface Use

Agreements, and Oil and Gas Leases on over 10,000 acres in Val Verde and Crockett Counties.

Representation of numerous landowners in Oil and Gas Lease negotiations, as well as litigation involving the

termination of easements, in the ―Lobo‖ gas trend of Zapata County.

Representation of landowners in negotiation of in-situ Uranium Mining Leases in Bee and Duval Counties.

Representation of owners of water rights in matters before the Texas Commission on Environmental Quality

and various water districts, as well as in the purchase and sale of water rights.

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Professional Qualifications

Admitted: State Bar of Texas, 1985.

Education: Deerfield Academy; Lewis and Clark College (B.A., History 1979); University of Texas School of Law

(J.D. 1985).

Awards, Honors and Leadership Positions

Texas Wildlife Association (Vice-President).

Texas and Southwestern Cattle Raisers Association (Director).

Parks and Wildlife Department‘s Private Lands Advisory Board (Chairman).

Governor‘s Task Force on Conservation.

Texas Parks and Wildlife Commission (Past Chairman).

Texas Water Advisory Council (Past Chairman).

Environmental Flows Advisory Committee.

Conservation Awards

Fort Worth Star Telegram, 1997 Farm and Ranch Awards for Resource Management.

1994 Environmental Stewardship Award for Innovative Management of Natural Resources.

1989 Wildlife Conservation Award, Texas Chapter of the Wildlife Society Soil and Water Conservation

Districts of Texas.

1988 Conservation Rancher of the Year.

2005 Rangeland Stewardship Award, Society for Range Management.

2006 Environmental Stewardship Awards, National Cattleman Beef Association.

Water Use and Conservation: a Landowner’s Perspective Chapter 14

i

TABLE OF CONTENTS

I. INTRODUCTION ................................................................................................................................................... 1

II. GROUNDWATER.................................................................................................................................................. 1 A. Ownership ....................................................................................................................................................... 1

1. The Common Law ................................................................................................................................... 2 2. Statutory Law .......................................................................................................................................... 2

B. Groundwater and the Oil and Gas Lease ......................................................................................................... 3 1. The Implied Easement ............................................................................................................................. 3 2. Limitations on the Implied Easement ...................................................................................................... 3

a. ―reasonable use‖ and the accommodation doctrine ......................................................................... 4 b. The use must not benefit off lease tracts .......................................................................................... 5

3. Landowner Solutions ............................................................................................................................... 5 C. Groundwater Conservation Districts ............................................................................................................... 5

1. Overview ................................................................................................................................................. 5 2. Exceptions ............................................................................................................................................... 6 3. Landowner issues .................................................................................................................................... 7 4. Landowner Solutions ............................................................................................................................... 9

D. Purchase or Lease of Groundwater .................................................................................................................. 9

III. SURFACE WATER ................................................................................................................................................ 9 A. State Water ...................................................................................................................................................... 9

1. Texas Prior Appropriation Doctrine ...................................................................................................... 10 2. Exceptions to Permitting ....................................................................................................................... 11 3. Purchase or Lease of Permits ................................................................................................................. 11 4 Other Sources of Surface Water ............................................................................................................ 11

a. Texas Water Bank .......................................................................................................................... 11 b. Irrigation Districts and Canal Companies ...................................................................................... 11

B. Diffused Surface Water ................................................................................................................................. 12

C. Developed Water and Beds-n-Banks Permits ............................................................................................... 12

D. Federal Regulation of Surface Water ............................................................................................................ 12

IV. CONSERVATION AND BEST MANAGEMENT PRACTICES ....................................................................... 13 A. Agricultural Best Management Practices ...................................................................................................... 13

1. General BMPs........................................................................................................................................ 13 a. Irrigation Scheduling ..................................................................................................................... 13 b. Volumetric Measurement of Irrigation Water Use ........................................................................ 13 c. Conservation Tillage ...................................................................................................................... 14 d. Irrigation Audits ............................................................................................................................. 14

2. Land Management Systems ................................................................................................................... 14 a. Furrow Dikes ................................................................................................................................. 14 b. Land Leveling ................................................................................................................................ 14 c. Contour Farming ............................................................................................................................ 14 d. Conversion of Supplemental Irrigated Farmland to Dry-Land Farmland ...................................... 15 e. Brush Management ........................................................................................................................ 15 f. Lining of On-Farm Irrigation Ditches ........................................................................................... 15 g. Replacement of On-Farm Irrigation Ditches with Pipelines .......................................................... 15 h. Low Pressure Center Pivot Sprinkler Irrigation Systems .............................................................. 15 i. Drip/Micro-Irrigation Systems ...................................................................................................... 16 j. Linear Move Sprinkler Irrigation Systems .................................................................................... 16

B. Grazing/Rangeland Best Management Practices ........................................................................................... 16 a. Livestock Exclusion and Fencing .................................................................................................. 16 b. Alternate Water Supplies and Artificial Shade .............................................................................. 16 c. Vegetation Management ................................................................................................................ 16


ii

C. Other Conservation Techniques .................................................................................................................... 16 1. Conservation Easements ........................................................................................................................ 16 2. Appropriation of Water for Instream Uses ............................................................................................ 17

V. CONCLUSION ..................................................................................................................................................... 17


1

WATER USE AND CONSERVATION:

A LANDOWNER’S PERSEPCTIVE

I. INTRODUCTION

There are few things more valuable to Texas

landowners than water. Apart from domestic

necessity, water is sine qua non for most beneficial

uses of land, such as agriculture, grazing, wildlife

management activities, and oil and gas development.

But as water demand steadily increases as supply

drops, landowners face some challenging questions,

the most urgent of which are 1) how to acquire water;

and 2) how to use any water acquired in an economic

manner that conserves a finite resource while

protecting future water quality and supply. This paper

attempts to give a cursory answer to these questions.

This paper is divided into three main sections. The

first two deal with how to get water, and cover

ownership and regulation of groundwater and surface

water respectively.1 The final section outlines

conservation and best management practices a

landowner can employ once the water has been

acquired.2

II. GROUNDWATER

In Texas, groundwater is defined as ―water

percolating below the surface of the earth.‖3 Tex.

Water Code §36.001(5). Texas groundwater resides in

9 major, 21 minor, and countless smaller aquifers,

scattered throughout the state. In many dry parts of

Texas, groundwater is relied on almost exclusively to

meet all water needs. However, groundwater supply is

not infinite, and some aquifers, such as the Ogallala,

which supplies the panhandle with 91 percent of its

water, do not recharge. To acquire groundwater, a

landowner can either produce their own, subject to the

limitations discussed in this section, or buy or lease

rights from others. With various entities and

individuals scrambling for a share in the aquifers,

1 While intimately connected in the hydrological cycle,

Texas law continues to treat surface water and groundwater

as if they existed independently of one another.

2 This paper is written primarily for the agricultural and

rangeland landowner, and attempts to address the most

important water issues from that perspective, but most of the

first 2 sections have a general application.

3 Groundwater ―makes up only three-quarters of 1 percent of

the total volume of fresh and saltwater found in nature‖ but

―it makes up nearly 97 percent of the fresh water readily

available on earth for consumption.‖ Gabriel Eckstein and

Amy Hardberger, Scientific, Legal, and Ethical Foundations

for Texas Water Law, in Essentials of Texas Water

Resources (Mary K. Sahs ed., 2009).

landowners need to know their rights, and what they

can do to help preserve and conserve this important

resource.

A. Ownership

In Texas, a landowner is absolute owner of all

groundwater beneath the land, and can drill a well and

pump as much water as the landowner can use, subject

only to the rule of capture4 , the common law

restrictions against waste and subsidence,5 and where

applicable, regulation by Groundwater Conservation

Districts. There has been great debate of recently over

the exact nature of the landowner‘s ―absolute‖

ownership,6 spurred in large part by the question of

Groundwater Conservation District regulation, which

is discussed below.7 From a conservation standpoint,

this debate is strange in a way. If a landowner does not

own his groundwater, what motivation is there to

preserve or conserve it? A usufructory right

encourages only production—not conservation. This

debate has not been settled as of the date of this article,

though the common law, and now statutory law,

4 The doctrine of ―absolute ownership‖ is often hopelessly

confused with the ―rule of capture‖. The Texas rule of

capture does not equate with the English doctrine of ferae

naturae, which applies only to unowned or abandoned

property. The Texas rule of capture is simply a limitation on

absolute ownership, as it allows a neighboring landowner to

drain water from beneath the landowner‘s tract. ―Under the

[Texas] rule of capture, a person owns all of the oil and gas

[or water] produced by a well bottomed on his own land,

even though the well may be draining the substances from

beneath other property. Further, the rule of capture denies

the landowner whose property is being drained any judicial

remedy. Thus, the rule as developed was ‗a doctrine of

nonliability for drainage, not a rule of property.‘‖ 1

ERNEST E. SMITH & JACQUELINE LANG WEAVER,

TEXAS LAW OF OIL & GAS §1.1(A) (2d ed. 2007).

5 Though the doctrine of waste exists now more in theory

than in actual practice. See City of Corpus Christi v. City of

Pleasanton, 276 S.W.2d 798 (Tex. 1955). For the

subsidence exception, see Friendswood Development co. v.

Smith-Southwest Industries, Inc., 576 S.W.2d 21 (Tex.

1978), stating that for the exception to apply there must be

―future subsidence proximately caused by future

withdrawals of ground water from wells which are either

produced or drilled in a negligent manner.‖ Id at 30.

6 The debate usually focuses on whether or not a

landowner‘s ownership of groundwater is vested in the

ground, or vested upon production. If the landowner does

not have a vested interest in groundwater in the ground, then

it can be regulated and taken with impunity. Or so goes the

theory.

7 See generally, Marvin W. Jones and Andrew Little, The

Ownership of Groundwater in Texas: A Contrived Battle for

State Control of Groundwater, 61 Baylor L. Rev. 578

(2009).


2

recognizes the rights of a landowner to their

groundwater.

1. The Common Law

For more than a century, Texas courts have

recognized landowners‘ absolute ownership of

groundwater beneath their property. The Texas

Supreme Court first announced the rule in Houston &

Texas Railway Co. v. East,8 and stated ―An owner of

soil may divert percolating water, consume or cut it

off, with impunity. It is the same as land, and cannot

be distinguished in law from land. So the owner of the

land is the absolute owner of the soil and of percolating

water, which is a part of, and not different from, the

soil.‖9 In the time since East was decided, Texas

courts have revisited groundwater ownership many

times, and have consistently upheld the ruling in

East.10

This common law doctrine was even

recognized by Chapter 36 of the Texas Water Code,11

8 98 Tex. 146, 81 S.W. 279 (Tex. 1904).

9 Id at 147.

10 In 1927 the Court wrote ―Groundwater is the ‗exclusive

property‘ of the owner of the surface and ‗subject to barter

and sale as any other species of property.‖ By 1978, the

Court in Friendswood Development Co. v. Smith-Southwest

Industries, Inc. 576 S.W.2d 21 (Tex. 1978) could state with

long authority that ―The Court [has] adopted the common

law rule that [water] rights are not correlative, but are

absolute, and thus are not subject to the conflicting

‗reasonable use‘ rule‖, and ―[groundwater property rights]

established by East have become an established rule of

property in this State, under which many citizens own land

and water rights. The rule has been relied on by thousands

of farmers, industries, and municipalities in purchasing and

developing vast tracts of land overlying aquifers of

underground water.‖ Id. at 29. See also, City of Sherman v.

Pub. Util. Comm’n, 643 S.W.2d 681, 686 (Tex. 1983) (―The

absolute ownership theory regarding groundwater was

adopted by this Court in [East]‖). The East ruling was

reaffirmed again in 1984 in Moser v. United States Steel

Corp,10

when the court ruled that groundwater ―belongs to

the surface estate as a matter of law.‖ Texas courts have also

ruled that because the landowner owns groundwater as a real

property interest, a landowner can sever groundwater from

the surface by a reservation in a deed. See City of Del Rio v.

Clayton Sam Colt Hamilton Trust, 269 S.W.3d 613

(Tex.App.—San Antonio, 2008, pet denied) (―Under the

absolute ownership theory, the Trust was entitled to sever

the groundwater from the surface estate by reservation when

it conveyed the surface estate to the City of Del Rio‖); Fain

v. Great Springs Waters of Am., Inc., 973 S.W.2d 327, 329-

30 (Tex.App.—Tyler 1998) (holding that groundwater can

be severed from the surface estate).

11Chapter 36 of the water code, which governs the creation

and power of groundwater districts, provides:

―OWNERSHIP OF GROUNDWATER. The ownership and

rights of the owners of the land and their lessees and assigns

which the Texas Supreme Court stated ―confirms

private rights in underground water.‖12

The long line

of cases have been summed up with an apt quote from

one commentator: ―The rule of capture has been

applied to groundwater in Texas for over a century,

and landowners do have rights in the water beneath

their property, and constitutional protections do apply

to those rights. The only surprise is that anyone could,

in this last century at least, still seriously contest these

truths.‖13

However, the Supreme Court has continued

to dance around the issue of whether or not such

ownership interest is ―vested,‖14

leaving open

questions regarding regulation and takings.

2. Statutory Law

In response to the debate over landowner

ownership in groundwater, and continuous regulatory

encroachment by the GCDs, the Texas legislature

passed Senate Bill 332. S.B. 332 amended Section

36.002 of the Water Code to read, in part, as follows:

―OWNERSHIP OF GROUNDWATER. (a) The

legislature recognizes that a landowner owns the

groundwater below the surface of the landowner‘s land

as real property‖ S.B. 332 also reaffirmed the rule of

capture, and the ability of Groundwater Conservation

Districts to regulate groundwater. However, this effort

by the legislature has not completely clarified the

situation, nor has it ended the debate. Early drafts of

the bill stated the landowner had a ―vested‖ interest in

the groundwater below the surface15

. The word

―vested‖ was eventually eliminated and replaced with

―as real property‖, a distinction without a real change

in meaning. Real property must always be ―vested‖

somewhere, and if the groundwater in place is not

in groundwater are hereby recognized, and nothing in this

code shall be construed as depriving or divesting the owners

or their lessees and assigns of the ownership or rights, except

as those rights may be limited or altered by rules

promulgated by a district. Tex. Water Code Ann. §36.002

(Vernon 2011).

12 Friendswood, 576 S.W.2d at 27; City of Sherman 643

S.W.2d at 686. aff‘d sub nom., Sipriano v. Great Spring

Waters of Am, Inc., 1 S.W.3d 75, 82 (Tex. 1999).

13 Marvin W. Jones and Andrew Little, The Ownership of

Groundwater in Texas: A Contrived Battle for State Control

of Groundwater, 61 Baylor L. Rev. 578, 2009.

14 They currently have another chance to address the

ownership issue. Edwards Aquifer Authority v. Day, 274

S.W.3d 742 (Tex.App.—San Antonio, 2008 pet granted)

ruled that ―Appellants‘ vested right in the groundwater

beneath their property is entitled to constitutional

protection.‖ However, in keeping with precedent, it is likely

the issue will not be directly addressed.

15 The author was among those who testified for its

inclusion.


3

vested in the landowner, then where is it vested? If the

water in place is vested in the State, then what does the

landowner have? A RAP defying springing executory

interest in groundwater? This novel and unsupported

concept has no basis in Texas law, and it is clear that

any serious interpretation of S.B. 332 gives landowners

a vested fee simple right to groundwater in place,

though it is still too soon to judge the effects of the bill.

B. Groundwater and the Oil and Gas Lease

Oil and gas development has the potential to bring

a mineral owning landowner great profit, but a lease

signed in haste without the benefit of a surface use

agreement can have disastrous consequences. In Texas

the mineral estate is dominant over the surface estate,

and carries with it an implied easement to unlimited

use of any surface estate resource, including water,

needed to reasonably develop the minerals. This

section outlines the hardships that can result when

provisions for surface and water use are not included in

a lease, and provides some advise on how to avoid

these results.

1. The Implied Easement

Because the oil and gas lessee‘s estate is the

dominant estate, the lessee has an implied grant,

―absent an express provision for payment, of free use

of such part and so much of the premises, including the

surface estate, as is reasonably necessary to effectuate

the purposes of the lease, having due regard for the

rights of the owner of the surface estate.‖ This

includes water, as water is part of the surface estate and

owned absolutely by the surface owner. Humbel Oil &

Refining Co. v. Williams, 420 S.W.2d 133 (Tex. 1967);

Warren Petroleum Corp. v. Martin 153 Tex. 465, 271

S.W.2d 410 (1954). The rights implied from the grant

are implied in law in all conveyances of the mineral

estate and, absent an express limitation thereon, are not

to be altered by evidence that the parties to a particular

instrument of conveyance did not intent the legal

consequences of the grant. Sun Oil Co. v. Whitaker,

483 S.W.2d 808 (Tex. 1972).

The implied grant of reasonable use extends to

and includes the right to use water from the leased

premises in such amount as may be reasonably

necessary to carry out the lessee‘s operations under the

lease.16

This holding has been reiterated by many

16

―Water, unsevered expressly by conveyance or

reservation, has been held to be a part of the surface estate.

However, that decision expressly recognized the right of the

oil and gas lessee to drill water wells on said land and to use

water from such wells to the extent reasonably necessary for

the development and production of such minerals.‖ Sun Oil

at 811.

Texas cases.17

An important point for landowners is

that the courts have also stated that if the lessee‘s

reasonable use excludes or impinges upon the use of

the surface owner, then the dominant (mineral) estate

will prevail. ―Since the lessee was the owner of the

dominant estate he had the right to use so much of the

premises as was reasonably necessary to the exclusion

of the lessor in order to carry out the purposes of the

mineral grant.‖ James G. Brown et al v. Martha

Lundell et al 162 Tex. 84, 344 S.W.2d 863 (Tex. 1961)

(italics added).

The implied easement to use as much water as

necessary does not have to be expressly reserved. It is

a part of the mineral estate, and passes automatically

with any conveyance of the mineral estate—unless

expressly withheld.18

2. Limitations on the Implied Easement

There are a few common law exceptions to the

implied easement, but they are narrow in scope and

difficult to secure. They are outlined below, but a

landowner should never rely on any of these

exceptions to protect their water interests.

17

See, e.g., Ball v. Dillard, 602 S.W.2d 521, 523, 23 Tex.

Sup. Ct. J. 457 (Tex. 1980) (―The granting of a mineral

estate would be worthless if the grantee could not enter upon

the land to explore for and extract the minerals granted.‖);

Ottis v. Haas, 569 S.W.2d 508, 513 (Tex. Civ. App.—

Corpus Christi 1978, writ ref‘d n.r.e.) (holding that a surface

owner had no legal right to deny the mineral lessee access to

the land for mineral development); Guffrey v. Stroud, 16

S.W.2d 527, 528 (Tex. Comm‘n App. 1929, judgm‘t

adopted) (―in absence of express reservation to surface

owner, mineral estate owner may use surface water or

groundwater to the extent necessary to the enjoyment of the

mineral estate‖). One of the most recent cases is Stanley H.

Rosenthal v. R.R. Comm’n of Tex., 2009 Tex. App. LEXIS

6522, pet denied. ―[groundwater], which has been held to be

part of the surface estate, is subject to the mineral leasehold

estate‘s right to use the groundwater to the extent necessary

for the enjoyment of the mineral estate.‖

18 As the court in Chambers-Liberty Counties Navigation

District v. David A. Banta, et al, stated, ―The reservation in

the trial court‘s judgment expressly reserves unto the

[lessees] the right of ingress and egress for the purpose of or

incidental to the exploration, development, production, and

transportation of such oil, gas and other minerals. We

construe this right of ingress and egress as being a mere

statement of [lessee‘s] common law right to the reasonable

use of the surface estate. The right of ingress and egress for

the expressed purposes adds nothing to the common law

right, nor do we construe such right of ingress and egress as

being a limitation upon the common law right.‖ 453 S.W.2d

134 (Tex. 1970).


4

a. ―reasonable use‖ and the accommodation doctrine

Texas courts have stated that while the mineral

estate has an implied right to use the surface, including

groundwater, this right must be exercised ―reasonably‖

and with due regard to the rights of the owner of the

surface. The rule of reasonable use has two distinct,

though closely related, parts: (1) a prohibition against

negligence and waste, and (2) what is known as the

―accommodation doctrine‖

The first part of the reasonable use doctrine

prohibits the lessee from negligent and wasteful

operation of the surface estate.19

If the lessee

negligently and unnecessarily damages the lessor‘s

land, including the lessor‘s water, the lessee‘s liability

to the lessor is ―no different from what it would be

under the same circumstances to an adjoining

landowner.‖and ―the lessee can use only so much of

the lessor‘s land as is reasonably necessary to

effectuate the purpose of the lease, and to be used in a

non-negligent manner.‖ Id.20

The burden of proof is on the party claiming that

the use is unreasonable.21

Therefore it is technically possible for a lessee to

be liable for damages if the lessee produces more water

than necessary for operations, or otherwise damages

the wells or aquifer, but the landowner has the heavy

burden (and by heavy, read impossible) of proving

unreasonable use.

The second part of the rule of reasonable use

states that in certain circumstances a surface owner‘s

19

As the Texas supreme court stated, ―We agree that the

owner-operator of the lease has the right to use so much of

the land, both surface and subsurface, as is reasonably

necessary to comply with the terms of the lease contract and

to carry out the purposes and intentions of the parties. It

does not follow, however, that the operator may use either

the surface or the subsurface in a negligent manner so as to

damage the landowner.‖ Lundell, 334 S.W.2d at 87 (italics

added).

20 See also, R.O. Robbinson v. Robbins Petroleum Corp.,

Inc., 501 S.W.2d 865 (Tex. 1973) (―the mineral lessee holds

the dominant estate, and as such has the right of ingress and

egress upon the land, but in doing so he must not make an

unreasonable use of the surface. If he does he can be held

accountable in damages.‖).

21 ―A person who seeks to recover from the lessee for

damages to the surface has the burden of alleging and

proving either specific acts of negligence or that more of the

land was used by the lessee than was reasonably necessary.‖

Oryx Energy Co., 942 S.W.2d at 641 citing Humble Oil &

Refining Company v. Williams, 420 S.W.2d 133, 134 (Tex.

1967). See also, Pharaoh Oil & Gas, Inc., v. Ranchero

Esperanza, Ltd. 343 S.W.3d 875 (Tex. App.—El Paso, 2011,

no pet) (―The burden is on the plaintiff to adduce evidence

that the actions of an oil and gas operator were not

reasonably necessary‖).

prior use of the surface trumps the lessee‘s implied

easement. While the dominant mineral estate has the

right to use the surface estate to produce minerals, this

right is to be exercised with due regard for the rights of

the surface owner. This concept of ―due regard‖,

known as the accommodation doctrine, was first

articulated in Getty Oil Co.v. Jones, 470 S.W.2d 618,

621 (Tex. 1971). The doctrine states that ―Where there

is an existing use by the surface owner which would

otherwise be precluded or impaired, and where under

the established practices in the industry there are

alternatives available to the mineral owner whereby the

minerals can be recovered, the rules of reasonable

usage of the surface may require the adoption of an

alternative by the mineral owner.‖22

Tarrant County

Water Control & Improvement Dist. No. 1 v. Haupt,

Inc., 854 S.W.2d 909, 911 (Tex. 1993). However, the

accommodation doctrine is limited to situations in

which there are reasonable alternative methods that

may be employed on the leased premises to

accomplish the purposes of the lease. Sun Oil Co. v.

Whitaker, 483 S.W.2d 808, 812 (Tex. 1972). This

means that a lessee can drain a surface owner‘s water

wells, even if the surface owner had a prior use that

would be destroyed by lack of water, and the lessee

could obtain off lease water cheaper and more easily.

Sun Oil stated very clearly that a lessee can use as

much groundwater as needed without having to

accommodate the surface owner by buying water from

off the lease. Id.23

However, there have been a few

steps forward in landowner protection under the

accommodation doctrine, such as in Tarrant County

Water Control and Improvement District Number One

v. Haupt, Inc., 854 S.W.2d 909 (Tex. 1993) and

Valence Operating Company v. Texas Genco, LP, 255

S.W.3d 210 (Tex.App.—Waco 2008, no pet) in which

the accommodation doctrine was expanded from the

protection of existing uses of the surface owner to

planned future uses of the surface owner. But although

the courts might be slowly expanding the

accommodation doctrine, landowners should never rely

on it exclusively to protect them from the implied

easement.

22

However, the surface owner must have no other

alternative surface use available- mere inconvenience is not

enough- See Meriman v. ETO Energy, Inc. No. 10-09-

00276-CV, 2011 WL 1901987 (Tex.App.—Waco May 11,

2011, no pet.)(mem.op.)(―the convenience of the surface

owner is not the sole issue.‖).

23 See also Valence Operating Company v. Texas Genco, LP,

255 S.W.3d 210 (Tex.App.—Waco 2008, no pet) (refusing

to expand accommodation doctrine to embrace off lease

accommodations).


5

b. The use must not benefit off lease tracts

Texas courts have ruled that lessees cannot use

water from a piece of land to benefit off lease lands

under the implied easement, absent express contractual

permission. In R.O. Robinson v. Robbins Petroleum

Corp., Inc., 501 S.W.2d 865 (Tex. 1973) the owner of

a piece of land entered into an oil and gas lease and

then sold the surface to a third party, subject to the

lease. The lessee then pumped water from the surface

owner‘s land for use in a large waterflooding unit. The

surface owner sued. The court stated that ―[the owner

of the surface] is entitled to protection from uses

thereof, without his consent, for the benefit of owners

outside of and beyond premises and terms of the

lease.‖ Id. at 868. The court went on to state that if

permission to use water off site had been in the lease or

pooling agreement, the use would have been allowed.24

However, in cases where the surface owner acquired

his interest before the mineral owner entered into a

lease, a provision in the lease or pooling clause might

not be adequate, as there would be no privity with the

surface owner. Because the surface owner is the

absolute owner of the groundwater, subject only to the

right to reasonable use, in such situations the lessee

would have to contract directly with the surface owner

in order to use water for acreage in a pooled unit or

otherwise off the lease. If the lessee failed to get such

an agreement, the surface owner would be ―entitled to

recover the value of that portion of the water which has

been consumed for the production of oil for owners of

lands outside the lease.‖ Id.

3. Landowner Solutions

If the landowner is also owner of the mineral

estate, or holds the executive right, the problems

associated with oil and gas development can be

entirely avoided by a surface use agreement that

includes specific water provisions. The agreement

should state that all water rights are reserved, and that

no water well can be drilled on the property without

consent. The agreement should provide for a payment

structure per barrel of water used from any allowed

well. The agreement should also prohibit the lessee

from using water off lease, and should charge for water

imported from off lease. The surface use agreement

should also prohibit salt water injection wells and

provide for adequate disposal of hazardous waste

materials.

If the landowner does not own the mineral estate,

they are at the mercy of the mineral owner and the

24

―Nothing in the . . . lease or the reservation contained in

Robinson‘s deed authorized the mineral owner to increase

the burden on the surface estate for the benefit of additional

lands.‖ Id.

lessee. A landowner should never rely on the common

law exceptions to the implied easement for protection,

but should do everything in their power to convince the

mineral owner to include a surface use agreement or

water provision in the lease. Or better yet, the

landowner should enter into a covenant with the

mineral owner stating that if the mineral owner ever

leases the land, they will include a surface use

agreement in the form attached. Consideration is

necessary to make it enforceable, but in most instances

the cost will be well worth it. If the property is already

leased, it comes down to the landowner‘s negotiating

skill with the lessee. Most lessees will work with the

surface owner up to a point, but when the lease has

been signed the landowner has little if any leverage.

At that point wrestling concessions from a lessee who

has free, unlimited water from the surface estate is a

Sisyphean task, to say the least. Landowners, if you

don‘t own your minerals, here is some sound advice:

find out who does, then make some new friends.

C. Groundwater Conservation Districts

1. Overview

Groundwater Conservation Districts (―GCDs‖) are

authorized under section 59, article XVI, of the Texas

Constitution25

, and are governed by Section 36 of the

Texas Water Code.26

The first GCD was created in

1951, and there are currently 97 GCDs operating in

Texas, each with unique rules and permitting

requirements. The Water Code gives each GCD power

to ―conserve, preserve, and protect groundwater; to

recharge groundwater resources and prevent waste; and

to control subsidence.‖ Tex Water Code §36.0015.

While GCD do not technically alter the rule of absolute

ownership, they impose government regulation over

groundwater, which can restrict a landowner‘s ability

to drill wells and produce water.27

If the landowner

25

Tex. Const. art. XVI, §59(b) ―There may be created within

the State of Texas, or the State may be divided into, such

number of conservation and reclamation districts as may be

determined to be essential to the accomplishment of the

purposes of this amendment to the constitution, which

districts shall be governmental agencies and bodies politic

and corporate with such powers of government and with the

authority to exercise such rights, privileges and functions

concerning the subject matter of this amendment as may be

conferred by law.‖

26 See Tex. Water Code §36.0015 (―Groundwater

conservation districts created as provided by this chapter are

the state's preferred method of groundwater management

through rules developed, adopted, and promulgated by a

district in accordance with the provisions of this chapter.‖).

27 ―[GCD regulations] are conceptually similar to zoning

regulation. Zoning does not prohibit a landowner from

using the land, but it may restrict the activities the landowner

may conduct on that land.‖ Mark McPherson, Frac Me With


6

does not follow the GCD‘s rules, they can be subject to

staggering civil penalties28

and suit by neighboring

landowners for damages due to illegal drainage.29

Until recently, each GCD was subservient to the state

water planning process, and each GCD plan had to be

approved by the Texas Water Development Board

(TWDB), and consistent with the regional water plan.

S.B. 1 (1997). However, in 2005 the 79th legislative

session passed H.B. 1763, which radically changed the

relationship of GCDs with each other and with the

TWDB. Each GCD is now part of one of the 16

Groundwater Management Areas (―GMA‖) in Texas,

created by the TWDB to ―facilitate the management of

the state‘s groundwater resources.‖ The officers or

representatives of each GCD in a GMA must meet

annually to ―conduct joint planning and to review

groundwater management plans and accomplishments

in the groundwater management area.‖ At these

meetings, each GMA then comes up with ―Desired

Future Conditions‖ (―DFCs‖) for each aquifer in the

GMA30

, which the TWDB defines as ―The desired,

quantified condition of groundwater resources (such as

water levels, water quality, spring flows, or volumes)

for a specified aquifer within a management area at a

specified time or times in the future . . . as defined by

participating groundwater conservation districts within

a groundwater management area as part of the joint

planning process.‖31

31 Tex Admin. Code § 356.2(8).

The DFC statements are then submitted to the TWDB,

which uses them to compute the Managed Available

Groundwater (―MAG‖) for each GCD. MAG is

defined as ―the amount of water that may be permitted

by a district for beneficial use in accordance with the

desired future condition of the aquifer established

through joint planning in each groundwater

management area.‖ Tex. Water Code § 36.001(25).

This: The Challenges of Obtaining Water for Production

28th

Annual Advanced Oil, Gas and Energy Resources Law

Course (2010).

28 A GCD may ―set reasonable civil penalties for breach of

any rule of the district, not to exceed $10,000 per day per

violation, and each day of a continuing violation constitutes

a separate violation.‖ Tex. Water Code § 36.102(b).

29 Tex. Water Code §36.116(a)(2). See also, City of Amarillo

v. Premium Standard Farms, Inc., No. 07-06-00467-CV,

2007 WL 2163399 (Tex. App.—Amarillo July 24, 2007, no

pet.).

30 See Tex Water Code §36.108.

31 ―In essence, a desired future condition is a management

goal that captures the philosophy and policies addressing

how an aquifer will be managed. What do you want your

aquifer to look like in the future?‖ Robert E. Mace, et al, A

Streetcar Named Desired Future Conditions: The New

Groundwater Availability for Texas 7th

Annual the Changing

Face of Water Rights in Texas (2006).

The GCD must use the MAG in implementing its

groundwater management plan (―GMP‖), and must

include estimates of the MAG available, the amount

being used, the amount of recharge, and the projected

water supply and demand. Tex.Water Code

§36.1071(h). H.B. 1763 and the concept of DFCs and

MAGs have switched the relationship of GCDs and the

regional planning groups. Now the GCDs have the

ultimate authority, and the regional planning groups

must accommodate the districts by basing their plans

on the MAG.32

GCD control of planning can have

adverse impacts on landowners, as will be discussed

below.

While the specific rules of each GCD can vary

significantly, GCD powers fall into three broad

categories: ―planning; data collection and

dissemination; and well regulation‖. Well regulation is

the most troubling for a landowner, and is

accomplished, in the main, by imposing permitting

requirements, and spacing/production limitations on

production of groundwater33

. Before discussing these

methods in depth, a few exceptions should be noted.

2. Exceptions

All GCDs ―must require a permit for the drilling,

equipping, operating, or completing of wells or for

substantially altering the size of wells or well

pumps.‖34

And ―no one may drill, alter, or operate a

well without first obtaining a permit from the GCD.‖

Tex. Water Code § 36.115.35

However, the Water

32

Senate Bill 660, passed this past legislative session also

allows each GMA that overlaps a regional planning district

to be represented by a voting member in the regional

planning district

33 See Marvin W. Jones, Dealing with Groundwater

Districts, 33rd

Annual Advanced Real Estate Law (2011)

(―Most districts impose some sort of limitation . . .

Panhandle GCD, for example, imposes a limitation of 1 acre

feet per acre per year. At the other end of the spectrum,

Llano Estacado UWCD‘s production limit is 16.13 acre feet

per acre per year.‖)

34 Michael Booth et al Chapter 36 Groundwater

Conservation Districts and Subsidence Districts in

Essentials of Texas Water Resources (Mary K. Sahs ed.,

2009).

35 The GCD considers many different factors in deciding

whether to issue a permit, such as whether (1) the

application conforms to the requirements prescribed by

chapter 36 of the Texas Water Code and is accompanied by

the prescribed fees; (2) the proposed use of water

unreasonably affects existing groundwater and surface water

resources or existing permit holders (3) the proposed use of

water is dedicated to any beneficial use; (4) the proposed use

of water is consistent with the district‘s certified

groundwater management plan, (5) the applicant has agreed

to avoid waste and achieve water conservation (6) the


7

Code provides for two important exemptions from the

permitting process. First, a GCD must exempt wells

that are used solely for domestic purposes or for

providing water for livestock or poultry, if the property

is greater than 10 acres and the well is incapable of

producing more than 25,000 gallons of water a day.

Tex. Water Code §36.117(b)(1). This allows

landowners to bypass the sometimes rigorous

permitting process for most home and farm uses.

However, landowners should be aware that if they

begin selling water to oil and gas producers, or

otherwise use the water in a manner not covered by the

exemption, the GCD can demand the well be permitted

or impose civil penalties on the landowner. The

landowner should also consult the rules of their water

district, as the GCD is free to promulgate more liberal

exceptions.36

The second exemption is the ―oil and

gas‖ exemption, and has been the source of some

controversy.37

The exemption states that chapter 36 of

the Water Code does not apply to ―the drilling of a

water well used solely to supply water for a rig that is

actively engaged in drilling or exploration operations

for an oil or gas well permitted by the Railroad

Commission of Texas . . . .‖ Tex Water Code

§36.117(b)(2). This exception on its face exempts only

wells that are used ―solely‖ to supply a ―rig‖ that is

―actively‖ engaged in drilling. It would seem not to

apply to any post drilling activity, or situation in which

the operator is sharing water from the well with a

landowner. Also, §36.117 specifically states that a

GCD cannot limit production from a well exempt

under the domestic/livestock exception, but has no

similar provision for the oil and gas exemption. This

suggests that even though the oil and gas water wells

may be exempt from permitting, they are not exempt

from spacing and production limitations. However,

this issue has yet to be addressed.

3. Landowner issues

GCDs pose serious threats to the water rights of

landowners who live within them38

, especially under

applicant will plug. Tex. Water Code §36.113(d)(1)-(4). With all permits, the applicant is entitled to a hearing. Tex

Water Code §§36.401-.419.

36 For instance, the Edwards Aquifer Authority‘s

domestic/livestock exception does not include an acreage

requirement.

37 For an in depth discussion see Mark McPherson, Frac Me

With This: The Challenges of Obtaining Water for

Production 28th

Annual Advanced Oil, Gas and Energy

Resources Law Course (2010).

38 Landowners in the so called ―white‖ areas can still

withdraw with relative impunity, but the expansion and

creation of GCDs continues, and landowners who live

the expanded power granted in H.B. 1763. These

problems stem from the expansive power granted to

GCDs in determining the DFC of an aquifer, and the

inherently reactive and politicized nature of GCDs in

general.39

GCDs are free to set their DFC in any

manner they see fit, usually with the intent to minimize

future withdrawals and preserve the status quo of the

aquifer. Once the DFC is sent to the TWDB, the

TWDB must return a MAG computed on that DFC,

basically giving the GCD the power to set their own

MAG. Section 36.1132 of the Water Code states ―a

district, to the extent possible, shall issue permits up to

the point that the total volume of groundwater

permitted equals the managed available groundwater.‖

Taken together, this means that GCDs in a GMA can

set their own MAG via DFC, then refuse to issue any

new permits once the MAG has been reached. More

troubling still is the power given by Section 36.116(b)

which states, ―[GCDs] may preserve historic or

existing use before the effective date of the rules to the

maximum of extent practicable.‖ GCDs use this

provision to ―grandfather‖ in existing uses, usually

defined by an arbitrary date set by the GCD.40

These

―existing uses‖ can effectively eat up the entire MAG,

leaving no room for new users, or landowners who

have failed to continuously use their groundwater

resources. In fact, one commentator has compared the

current situation to an expost facto prior appropriations

regime.41

This protectionism is to be expected when

independent political subdivisions are left to fend for

their own interests without any kind of overarching

authority or check. Another looming issue for

landowners is the oil and gas exception. Water

outside a GCD are already endangered, and may soon be

extinct.

39 See Russell S. Johnson, Groundwater Issues Affecting

Property Owners in Texas, 4th

Annual John Huffaker

Agricultural Law Course (2010) ―Nearly every new resident

in the pristine hill country in central Texas, upon becoming a

resident, immediately desires that the influx of urbanites to

the country stop. The desired future condition is that the hill

country not change for the foreseeable future. There is an

inherent objection or resistance to change, particularly when

the change necessarily has an impact on an existing

situation. Put another way, districts are reluctant to adopt

desired future conditions substantially different than current

conditions.‖

40 See e.g., Guitar Holding Co. v. Hudspeth County

Underground Water Conservation District No. 1, 263

S.W.3d 910 (Tex. 2008).

41 ―Most groundwater districts intend to apply a permit cap,

and create a prior appropriation system expost facto. In

short, without knowing it, landowners will either be awarded

some of the ‗available production‘ based on previous use

and other landowners who conserve the resource will be

forever foreclosed from using groundwater.‖ Id. at 7.


8

produced from exempt wells is still counted against the

MAG. If it turns out that GCDs cannot limit

production from exempt oil and gas water wells, which

is still an open question, then in areas of high oil and

gas development these exempt wells could quickly run

through any portion of the MAG not already given

over to ―historic uses‖, leaving landowners high and

dry.

Are there defenses for the landowner? A

landowner can challenge the ―reasonableness‖ of the

DFC, but if the landowner does not prevail they must

pay the GCD‘s attorneys‘ fees42

, and even if

successful, cases have shown that the TWDB can only

issue a recommendation, and has no authority to

actually change the DFC43

. However, new laws passed

last legislative session suggest that petitions may be

easier and more effective in the future, but whether that

is true remains to be seen.44

There have been a few constitutional challenges to

GCD action in the recent past, with mixed results. In

Barshop v. Medina County Underground Water

Conservation District, 925 S.W.2d 618 (Tex. 1996),

various plaintiffs challenged the Edwards Aquifer

Authority Act, which limited withdrawals from the

Edwards Aquifer to 450,000 acre-feet per year. The

plaintiffs claimed that the limitation was a taking of a

vested property right without compensation, and

facially unconstitutional. The court did not address the

issue of whether or not landowners have a ―vested‖

right in groundwater, and ruled for the defendant, as

the Act was not facially unconstitutional because it

specifically provided for compensation for any taking.

In South Plains Lamesa Railroad, Ltd. v. High Plains

Underground Water Conservation District No. 1, 52

S.W.3d 770 (Tex.App.—Amarillo 2001, no pet),

landowners challenged GCD action that limited

production and revoked permits to prevent

―disproportionate taking‖. The court ruled for the

landowners, stating that GCD must base all their

actions on explicit legislative authority. This led to the

amendment of the Water Code to grant more specific

power to GCDs to modify the rule of absolute

ownership.45

Arguably the most important recent

decision from a landowner perspective is Guitar

Holding Co. v. Hudspeth County Underground Water

Conservation District No. 1, 263 S.W.3d 910 (Tex.

2008). This case revolved around the actions of the

Hudspeth County Underground Water Conservation

42

Tex. Water Code §36.066(d).

43 See Mesa Water, L.P. v. Texas Water Development Board,

Cause No. D-1-GN-10-000819.

44 See Senate Bill 660.

45 Act of May 27, 2001, 77

th Leg., R.S., ch. 966, § 2.31,

2001 Tex. Gen. Laws 1880, 1897, eff. Sept. 1, 2001.

District, which regulates the Bone Spring-Victorio

Peak Aquifer. After entering into negotiations to sell

water from the district to El Paso, the Hudspeth WCD

developed a new management plan that limited

groundwater withdrawals to 63,000 acre-feet per year.

It then exclusively granted this permitted water to

―historic‖ users who had been producing water during

the past 10 years, giving them the sole right not only to

continue the ―historic‖ use, but to begin new uses, such

selling water out of district to El Paso. The Guitar

family sued, claiming their water had been taken, and

the district‘s actions were ultra vires. The court

agreed, and ruled that while the Water Code gives the

GCD the power to protect historic uses, the GCD must

treat all permits for ―new‖ uses equally, and cannot

give a ―perpetual franchise‖ to historic users to sell

water. The court stated ―the District‘s transfer rules, in

essence, grant franchises to some landowners to export

water while denying that right to others. Because the

limitations are not uniformly applied to these new

applications and are not necessary to protect existing

use, the District‘s transfer rules exceed the statutory

authorization and are thus invalid.‖ Id. at 918. The

Guitar case is a small victory for landowners outside

the circle of the GCD oligarchy, but is of little help if

the MAG has already been met and no new water can

be permitted. However, these cases leave unanswered

basic questions of ultimate water ownership, and the

extent a GCD can regulate before such regulation

becomes an unconstitutional taking, giving little insight

to the landowner. Some of these questions may be

answered by a case currently pending before the

Supreme Court. Edwards Aquifer Authority v. Day,

274 S.W.3d 742 (Tex.App.—San Antonio, 2008, pet

granted), is an interesting and frustrating case that

raises several concerns for landowners. In Day, the

landowners applied for a groundwater permit from the

Edwards Aquifer Authority. Under the Edwards

Aquifer Act, the landowners were entitled to the

amount of water they could show was put to beneficial

use on the property during any calendar year during the

―historical period‖ between June 1, 1972 and May 31,

1993. During the historical period, landowner‘s

predecessors had an artesian well in the Edwards

Aquifer that produced a steady flow of water that fed

into a lake on their property. The lake was also

supplied by water from a small stream. The

landowners then used water from the lake for irrigation

purposes. The landowners applied for a permit based

upon this use. The permit as requested was ultimately

denied. The landowner sued, claiming its due process

rights had been violated, its vested property had been

taken without compensation, and argued that the

Authority‘s conclusion that the water withdrawn from

the lake was ―state‖ water was erroneous. The trial

court ruled for the landowner on the water issue, and

stated that the water withdrawn from the lake was not


9

state water, but granted summary judgment for the

Authority on the Constitutional and due process

claims. The appellate court disagreed on the water

issue, and ruled that the lake, and the stream that fed it,

constituted a watercourse, and when the groundwater

entered the lake it ceased to be groundwater and

became state water. Therefore any water withdrawn

from the lake was state water and could not be used to

apply for a groundwater permit. As for the

Constitutional issues, the appellate court sustained the

trial court‘s ruling regarding the due process claims,

but overruled the trial court as to the Constitutional

taking claim and remanded, stating that a landowner

had a ―vested‖ interest in groundwater. The Supreme

Court granted review, and the case is currently

pending. It remains to be seen whether the Supreme

Court will address the exact nature of groundwater

ownership, or sidestep it yet again. But if there is one

thing a landowner should take from this case it is to be

extremely careful with withdrawn groundwater. Under

Day, if groundwater is placed into a watercourse, or

possibly into any lake, tank, pond, reservoir or any

other surface holding facility, there is the possibility

that it could become state surface water, owned by the

state and subject to TCEQ regulation.

4. Landowner Solutions

The best thing a landowner can do to fight GCD

regulation is to become actively involved. The

landowner should become thoroughly familiar with all

the district‘s idiosyncratic rules and regulations, as

well as attend hearings and meetings. Legal challenges

are difficult, and the penalty of attorneys‘ fees makes it

especially burdensome to a landowner. However, the

landowner should always keep up with the latest court

decisions that could potentially limit or change GCD

power, and compare such results to the actions of their

GCD. But because GCD regulation is basically

nothing but local politics at its worst, the best advice

for a landowner dealing with a GCD is to make some

friends and aggressively engage in realpolitk. And to

avoid the result in Day, a landowner should never put

groundwater into a watercourse without a bed-n-banks

permit (explained below).

D. Purchase or Lease of Groundwater

Another option for a landowner, besides

producing their own groundwater, is to buy or lease

groundwater from another landowner. Because

groundwater is a real property interest, it can be

conveyed by deed and contracted for like any other

species of real property. It can also be leased on either

a production basis or for a term of years, or acquired

through a license agreement. A landowner should

always perform their due diligence to ensure that any

contemplated contract or sale does not violate any

GCD rule or regulation, and confirm that the seller has

marketable title to the groundwater. For an in depth

discussion of issues related to groundwater sale and

lease transactions, see Susan M. Maxwell and Denise

V. Cheney, Groundwater Transactions, in Essentials of

Texas Water Resources (Mary K. Sahs ed., 2009).

III. SURFACE WATER

Surface water is generally what it sounds like:

water on the surface of the earth, such as rivers, lakes,

streams, tanks, rainfall etc, although it also includes

river underflow. However the law applicable to

surface water varies drastically depending on what

kind of surface water is at issue. In Texas there are

two main types of surface water: (1) non-diffused, or

―state‖ water, and (2) diffused surface water. I have

included developed water as a third type, though it

exists only as a legal concept. This section will

address each type in turn, and give an overview of

ownership and acquisition issues.

A. State Water

State water is owned by the State of Texas, and is

defined as ―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.‖ Tex Water Code §11.021.

This includes water in what Texas courts call

―watercourses‖, which have ―(1) a defined bed and

banks, (2) a current of water, and (3) a permanent

source of supply.‖ Domel v. City of Georgetown, 6

S.W. 3d 349, 353 (Tex.App.—Austin 1999, pet

denied). It should be stressed that the courts are very

liberal when deciding whether a watercourse has a

―current source of water‖ and a ―permanent source of

supply.‖46

As one commentator put it, ―there is very

little water flowing . . . that is not presumptively owned

by the State.‖47

Although the state of Texas owns state

water, a landowner can acquire a permit to use the

water as a vested property right under the doctrine of

prior appropriation.48

46

See, e.g., Hoefs v. Short, 114 Tex. 501, 273 S.W. 785

(1925) (Watercourse can be supplied by rainwater alone);

Humphreys-Mexia Co. v. Arseneaux, 116 Tex. 603, 605-08,

297 S.W. 225, 227-28 (1927) (Watercourse does not always

have to be flowing).

47 Edmonsd R. McCarthy, Jr., Esq, Surface Water

Conveyancing (Sale & Lease)-Landowner Perspective, 6th

Annual the Changing Face of Water Rights in Texas (2005).

48 It is unlawful to ―take, divert or appropriate‖ state water

without a permit, and doing so can subject a landowner to

civil penalties of $5,000.00 per day. Texas Water Code §§

11.081, 11/082, 11.084.


10

1. Texas Prior Appropriation Doctrine

The story of the evolution of Texas law relating to

state water is long and complex, and mostly outside the

scope of this paper. It involves a great deal of history,

and the slow and painful replacement of the riparian

system, more suited for wetter climates than Texas,

with the current doctrine of prior appropriation.49

This

process culminated in the Water Rights Adjudication

Act of 196750

, which allowed for judicial settlement of

the various competing claims to state water, and

awarded the water rights by certificate of adjudication.

Today, if a landowner wishes to appropriate state water

they must either purchase an existing water right from

a permitted or adjudicated user, or follow the TCEQ

permitting process51

outlined in §§ 11.022-11.024 of

the Texas Water Code.52

If the landowner wants to apply for a new permit

to appropriate state water, they must show (a)

unappropriated water is available in the source of

supply, (b) the proposed appropriation contemplates

application of water to a beneficial use, (c) the

proposed appropriation does not impair existing water

rights, (d) the proposed appropriation is not detrimental

to the public welfare, (e) reasonable diligence will be

used to avoid waste and achieve conservation, and (f)

addresses a need identified in the State Water Plan and

Regional Water Plan unless waived by the TCEQ.53

The applicant must also pay various the various fees

mandated by the TCEQ, such as Filing fees, Recording

49

The English riparian system allows all landowners

abutting a stream or river equal, reasonable, use of water.

This system flourished in the Northeast, where river water

and rainfall is plentiful, but is ill-adapted to handle arid

climates prone to drought. Prior appropriation gives priority

to the first person to divert water and put it to beneficial use

(commonly referred to as ―first in time, first in right‖), and

gives any junior users the remainder.

50 Tex Water Code Subchapter G §11.301 et seq.

51 For a more in depth discussion of the permitting process,

see generally Tom Bohl, Surface Water 101 Nuts Bolts of

Water Rights (2009); Edmond R. McCarthy, Jr. Esq.,

Surface Water Conveyancing (Sale & Lease)- Landowner

Perspective, 6th

Annual the Changing Face of Water Rights

in Texas Course (2005); Glen Jarvis, Fundamentals of

Surface Water Law, Nuts and Bolts of Texas Water Rights

(2005).

52 Acquiring a water rights permit from the TCEQ does not

give the landowner an ownership right in the water, but ―a

right to divert and use the water for beneficial purposes‖, or

a ―usufructury right or a right of use.‖ Edmond R.

McCarthy, Jr., Esq, Surface Water Conveyancing (Sale &

Lease)—LandownerPerspective, 6th

Annual the Changing

Face of Water Rights in Texas Course (2005).

53 If the landowner desires to use the water for irrigation, the

landowner must also describe the land and give an estimate

of the total acreage. Tex Water Code 11.124(b).

Fees, ―Use‖ Fees, and Mailing Notice Fees.54

The

permit can be perpetual, seasonal, or for a term. A

perpetual permit becomes a vested property right once

it is perfected by the landowner diverting the water and

putting it to beneficial use. However, subject to some

exceptions55

, a landowner can lose its right to state

water if the water has not been put to beneficial use

during the immediately preceding 10 years.56

Because most state water already has been

permitted, acquiring new permits comes with several

disadvantages. First, new permits might not be

available if there is insufficient water to protect current

users.57

Second, even if there is adequate water

available, the new permit will be junior to all other

permits on the same water, meaning that during

drought conditions, or water shortages, the new permit

user will have to accommodate all senior users. The

TCEQ has developed Water Availability Models

(―WAMs‖) on every major river in Texas, for use in

determining whether excess water is available for new

permits. Landowner should consult these WAMs to

determine if there is adequate supply to meet new

permitting demands.58

Though a landowner might

have difficulty in acquiring a new permit, there are

other options. A landowner can take advantage of the

permitting exceptions, purchase an existing water right,

or buy water from an irrigation or canal district.

54

These fees can get expensive. ―A fee under §295.133 of

this title (relating to One-Time Use Fees) for one use of state

water under a permit from the commission shall not exceed

$50,000. The fee for each additional use of water under a

permit for which the maximum fee is paid shall not exceed

$10,000. Temporary water permit use fees under §295.133

of this title shall not exceed $500. The fee for any

application for extension of time to commence or complete

construction under §295.133 of this title shall not exceed

$1,000. The fee under §295.133 of this title for the use of

saline tidal water for industrial processes shall not exceed

five thousand dollars ($5,000).‖ 30 TAC § 295.134.

55 Water rights will not be cancelled if the landowner is

participating in the Conservation Preservation Program, or if

a significant portion of the water authorized by the permit is

being used. Tex. Water Code §11.173(2).

56 Tex. Water Code §11.173.

57 The TCEQ also deducts water from permits for protection

of environmental flows to ―maintain freshwater inflows,

instream flows, fish and wildlife habitat and water quality.‖

This should always be taken into account acquiring a new

permit. See Collette Barron Bradsby, Texas Environmental

Flow Protection: a Work in Progress, 7th

Annual The

Changing Face of Water Rights in Texas (2006).

58Available at

http://www.tceq.texas.gov/permitting/water_rights/wam.htm

l#full

http://www.tceq.texas.gov/permitting/water_rights/wam.html#full

http://www.tceq.texas.gov/permitting/water_rights/wam.html#full


11

2. Exceptions to Permitting

The Water Code contains several important

exceptions to the permitting process for state water.

Two of the exceptions are relevant for the landowner.

The first is the ―domestic and livestock‖ exception59

,

which states ―Without obtaining a permit, a person

may construct on his own property a dam or reservoir

with normal storage of not more than 200 acre-feet of

water for domestic and livestock purposes. A person

who temporarily stores more than 200 acre-feet of

water in a dam or reservoir described by this

subsection is not required to obtain a permit for the

dam or reservoir if the person can demonstrate that the

person has not stored in the dam or reservoir more than

200 acre-feet of water on average in any 12-month

period. This exemption does not apply to a

commercial operation.‖ The TCEQ defines domestic

use as ―use of water by an individual or a household to

support domestic activity [such as] drinking, washing,

[cooking], irrigation of lawns, watering of domestic

animals‖, but does not include any activity in which

the water is sold, or the ―product of the activity is

sold.‖ 30 Tex. Admin. Code § 297.1(18)(28).

Livestock use is defined as ―The use of water for the

open range watering of livestock, exotic livestock,

game animals or fur-bearing animals.‖ Id. This

exception does not include agricultural use, or any

activity where the water is exchanged for profit.

The second exception states ―Without obtaining a

permit, a person may construct on the person‘s

property a dam or reservoir with normal storage of not

more than 200 acre-feet of water for fish and wildlife

purposes if the property on which the dam or reservoir

will be constructed is qualified open-space land, as

defined by Section 23.51, Tax Code. This exemption

does not apply to a commercial operation.‖60

These exceptions specifically exclude

―commercial use‖, and can be lost if the landowner

begins using water from the dam or reservoir in a

manner not contemplated by the statute. A landowner

must also bear in mind that this water is included in the

implied easement granted in oil and gas leases, unless

specifically withheld.

3. Purchase or Lease of Permits

Water permits can be bought, sold, or leased, like

any other species of property. A landowner thinking

about purchasing or leasing a state water right should

begin by assessing the situation and performing their

due diligence work,61

as the process can be long and

59

Tex Water Code §11.142(a).

60 Tex Water Code §11.142(b).

61 The potential buyer should at least confirm that the permit

is marketable, i.e. it is a valid right recognized by the TCEQ.

complex.62

Any change in the ownership of a state

water right must be permitted by the TCEQ pursuant to

a ―Change in Ownership Form‖. Additionally, if the

new use of water is in a different place or irrigates a

different acreage, or has a different purpose or rate of

withdrawal, or in any way changes the water right, the

landowner must amend the permit by filing the proper

application and documents.63

But even though the

process is arduous, and the price could be extravagant,

the purchaser succeeds to the rights of the original

holder, stepping into their place in the line, so to speak.

This has considerable advantages over acquiring a new

permit that is junior to every other user. For a more

detailed summary of the specific issues a landowner

must address in the purchase of water rights, see

Edmond R. McCarthy, Jr., Esq., Surface Water

Conveyancing (Sale & Lease)- Landowner

Perspective, 6th Annual the Changing Face of Water

Rights in Texas Course (2005).

4. Other Sources of Surface Water

a. Texas Water Bank

The Texas Water Bank was established in 199364

to act as a depository and clearinghouse for water

rights.65

Deposited water rights are available for sale

or lease, and is a good place to start for landowners

wanting to acquire surface water rights.

b. Irrigation Districts and Canal Companies

A landowner can also contract with a canal

company or irrigation district to buy surface water, if

the landowner is located within the company‘s or

The buyer should also make sure that the right has not been

previously leased or subordinated. See Edmond R.

McCarthy, et al, Surface Water Rights Transactions in

Essentials of Texas Water Resources (Mary K. Sahs ed.,

2009).

62 ―Water deals do not occur overnight. Negotiations can be

protracted, and the period for exercising ‗due diligence‘ can

be painfully long, often extended because of developments

surrounding changes to the water right needed by the

buyer/lessee. Some practitioners describe water deals as

moving in ‗geologic time‘‖ Id. at 16.

63 See 30 TAC Chs. 293 and 297. The TCEQ must authorize

the amendment if the new use ―will not cause adverse

impact on other water right holders or the environment on

the stream of greater magnitude than under circumstances in

which the [water right] was fully exercised according to its

terms and conditions as they existed before the requested

amendment.‖ Tex. Water Code §11.122(b).

64 Tex. Water Code §15.702; Act of May 21, 1993, 73d Leg.,

R.S., ch. 647, §1, 1993 Tex. Gen. Laws 2430, 2431.

65 The Texas Water Bank has been compared to a ―multiple

listing service for real estate.‖


12

district‘s service area.66

A landowner who owns real

property adjacent to the canal or irrigation facility also

has a statutory right, if a voluntary agreement cannot

be reached with the district or company, to buy water

at a reasonable and nondiscriminatory rate from the

company or district, and the company or district is

required to supply the water, if water is available.67

B. Diffused Surface Water

Diffused surface water is water ―which is diffused

over the ground from falling rains or melting snows,

and continues to be such until it reaches some bed or

channel in which water is accustomed to flow.‖ City of

Princeton v. Abbott, 792 S.W.2d 161, 163 (Tex.App.—

Dallas 1990, writ denied) (quoting Stoner v. City of

Dallas, 392 S.W.2d 910, 912 (Tex.Civ.App.—Dallas

1965, writ ref‘d., n.r.e.). This water is owned by the

landowner, who is free to gather it and use it in any

manner68

without a permit from the TCEQ.69

However, once the diffused surface water reaches a

watercourse it immediately transforms into state water,

and cannot be diverted or appropriated without a

permit.70

As mentioned above, courts are liberal in

interpreting what constitutes a ―watercourse‖71

, and

when in doubt a landowner should err on the side of

caution to avoid the steep fines associated with the

illegal diversion of state water.

C. Developed Water and Beds-n-Banks Permits

Developed water is an oddity. It is water that has

been artificially introduced into the watercourse by a

―developer‖. Developed water can be groundwater,

appropriated state water, diffused water, or any other

type that a landowner has legal control of, and then

voluntarily chooses to place in a watercourse for some

66

See generally, Edmond R McCarthy, Jr., Lynn Ray

Sherman, and Derek Seal,, Surface Water Rights

Transactions, Essentials of Texas Water Resources, Ch. 12;

Tex. Water Code §11.036; Willis v. Neches Canal Co., 16

S.W.2d 266 (Tex. Comm‘n App. 1929, judgm‘t adopted).

67 Tex. Water Code §11.038; Edinburg Irrigation Co v.

Ledbetter, 286 S.W. 185 (Tex. Civ. App. 1942, writ ref‘d

w.o.m.).

68 However, a landowner may not divert or impound diffused

water in a manner that damages the property of another.

Tex. Water Code §11.086.

69 See Turner v. Big Lake Oil Co., 96 S.W.2d 221, 228 (Tex.

1936); Motl v. Boyd, 286 S.W. 458, 473 (Tex. 1926).

70 Tex. Water Code §11.021.

71 A watercourse is ―more than a low area in a pasture‖ or a

―draw‖ and has a ―channel‖ Some of the helpful language

given by the court in Turner v. Big Lake Oil Co., 62 S.W.2d

491 (Tex.Civ.App.—El Paso 1933), aff’d 128 Tex. 155, 96

S.W.2d 221 (1936).

purpose, normally to transport it downstream. If the

landowner or ―developer‖ follows the proper

procedure, the water does not become state water, even

though it is flowing through a watercourse, and the

landowner can then extract it downstream for further

use. A landowner can accomplish this by following

§11.042 of the Texas Water Code entitled ―Delivering

Water Down Banks and Beds‖, as well as 30 TAC §§

295.112-295.113, and apply for a ―bed-n-banks

permit.‖ The permit allows a person, entity, or district

to place water in a watercourse, then withdraw it

downstream, less any loss due to ―carriage.‖72

Failure

to follow this application process can have disastrous

consequences, as Burrell Day and Joel McDaniel can

well attest.73

The statute and rules group all developed water

into four categories with separate procedures and

requirements for each. The four types are (1) water

from a reservoir or ―conserved‖ water; (2)

groundwater; (3) water imported from out of state; and

(4) all other types of water. The Water Code directs

the applicant to follow the procedure outlined in the

Administrative Code for permitting each type of

developed water. A landowner should be aware,

however, that merely acquiring a bed-n-banks permit

does not ensure that the water will be available for

diversion downstream. The Water Code states that the

TCEQ may deduct a part or all of the developed water

if there are ―special conditions‖, such as environmental

issues or permitted state water holders that are

endangered. A landowner should always exercise

extreme caution when placing its water in a State

watercourse, and at the mercy of the TCEQ.

D. Federal Regulation of Surface Water

The federal government, mainly through the

Environmental Protection Agency, has authority to

regulate navigable and interstate waters. While this

issue is beyond the scope of this paper, landowners

should be aware that the Environmental Protection

Agency has been quite active in recent years in efforts

to extend its jurisdiction into ―almost every ditch, pond

or occasional conveyance of rainfall.‖74

If jurisdiction

is found, the EPA can regulate almost every aspect of

the landowner‘s ranching and agricultural activities.

The Supreme Court‘s mystifying plurality opinion in

72

Carriage losses are losses in volume caused by seepage

and evaporation during the transport.

73 See Edwards Aquifer Authority v. Day, 274 S.W.3d 742

(Tex.App.—San Antonio 2008 pet granted) for an example

of what can happen when groundwater is placed into a

watercourse without a bed-n-banks permit.

74 Jim D Bradbury, Ashley Newhall, The Growing Role of

the EPA in Agriculture Issues, 5th

Annual John Huffaker

Agricultural Law Course (2011).


13

Rapanos75

has emboldened the EPA to attempt

regulation of lands traditionally beyond federal reach.

According to the EPA‘s Environment EPA Drafts

Guidance, Plans Rules to Clarify Jurisdiction Over

Bodies of Water, Wetlands, the EPA has expanded the

jurisdiction of the Clean Water Act from:

―1) Traditional navigable waters; 2) Interstate waters;

3) Wetlands adjacent to either traditional navigable

waters or interstate waters; 4) Non-navigable

tributaries to traditional navigable waters that are

relatively permanent, meaning at least seasonal; and 5)

Wetlands that directly butts into relatively permanent

waters‖ to include ―1) tributaries to traditional

navigable waters or interstate waters; 2) Wetlands

adjacent to jurisdictional tributaries to traditional

navigable waters or interstate waters; 3) Waters that

fall under the ―other waters‖ category of the

regulations‖ that have a ―significant nexus‖ to

navigable water or interstate water. This standard of

―significant nexus‖ can be used to invoke federal

regulation over almost any type of surface water or

wetland, which introduces EPA regulation over many

aspects of a landowner‘s operations. This is still a new

and highly controversial issue, and all a landowner can

do at this point is pay close attention to how this area

of the law develops.

IV. CONSERVATION AND BEST

MANAGEMENT PRACTICES

Once a landowner has acquired water through one

of the methods outlined in the previous two sections,

the next question is how to use it economically and in

an environmentally sound manner. This section

attempts to give the landowner a broad and brief

overview of Best Management Practices for both

agricultural and grazing/rangeland that help conserve

water resources, and protect the water supply for future

users.

A. Agricultural Best Management Practices

Irrigation accounts for roughly 56% of all

groundwater and surface water used in Texas.76

However, much of that water never actually gets to the

crops—it is wasted through seepage, evaporation, and

runoff. But waste isn‘t the only problem. Excess

runoff and seepage can introduce pesticides and other

wastes into rivers, lakes and aquifers, damaging future

water quality. The following Best Management

Practices are methods agricultural irrigators can

75

Rapanos v. United States, 547 U.S. 715 (2006). The court,

or rather Justice Kennedy, ruled that waters with a

―significant nexus‖ to navigable or interstate water is fair

game for federal regulation.

76 2012 Texas State Water Plan, available at

http://www.twdb.state.tx.us/wrpi/swp/swp.asp

employ to use water more efficiently, reduce waste,

and protect ground and surface water from

environmental hazards. These BMPs have been

recommended and developed by a variety of

organizations77

, and a more detailed analysis of each

can be found in the Water Conservation Best

Management Practices (BMP) Guide for Agriculture in

Texas, Based on the Agricultural BMPs contained in:

Texas Water Development Board Report 362, Water

Conservation Implementation Task Force.

1. General BMPs

The following basic BMPs can be applied by any

type of agricultural irrigator, and are the essential

building blocks of effective water conservation.

a. Irrigation Scheduling

Irrigation scheduling is ―a generic term for the act

of scheduling the time and amount of water applied to

a crop based on the amount of water present in the crop

root zone, the amount of water consumed by the crop

since the last irrigation, and other management

considerations such as salt leaching requirements,

deficit irrigation, and crop yield relationships.‖78

Efficient water scheduling can result in conservation of

water supply, and significant savings for a landowner.

Methods of irrigation scheduling include direct

measurement of soil moisture by a variety of

methods79

, and soil water balance equations80

.

b. Volumetric Measurement of Irrigation Water Use

Knowing exactly how much water an irrigation

system is using is essential for any type of conservation

effort, and to determine the effectiveness and

performance of an irrigation system. While this BMP

does not in of itself conserve water, it gives the

landowner vital information necessary to make

informed decisions about water use. Volumetric

measurement can be either direct or indirect. Direct

77

Including The TCEQ; Department of Agriculture; Parks

and Wildlife Department; Sate Soil and Water Conservation

Board; Texas Water Development Board; GCDs; River

Authorities; Irrigation Districts; to name a few.

78 Water Conservation Best Management Practices (BMP)

Guide for Agriculture in Texas, Texas Water Development

Board Report 362, Water Conservation Implementation Task

Force (2005). (cited herein as ―BMP Guide”)

79 E.g., soil sampling, tensiometers, gypsum blocks, infrared

photography of crop canopy, time domain reflectrometry,

plant leaf water potential, etc.

80 Information on soil water balance equations can be found

on the Texas Cooperative Extension Services – Texas

Evapotranspiration Network web site (texaset.tamu.edu).

For more information on integrated systems for irrigation

scheduling and soil monitoring, go to www.aquaspy.com

http://www.twdb.state.tx.us/wrpi/swp/swp.asp


14

methods involve installing some type of flow meter81

,

or manually measuring flow set intervals. Indirect

measuring involves calculating the estimated flow

based on a number of factors, such as water pump

energy, end pressure, any changes in elevation, and

size of delivery system.82

However, installation of

meters can be cost intensive83

, though the long-term

benefits of accurate water assessment and conservation

outweigh the up-front expenditures.

c. Conservation Tillage

Conservation tillage are methods of soil tillage,

such as no till, strip till, mulch tillage, and ridge till,

that reduces evaporation, soil moisture and run off.

Employing these methods where appropriate84

can

produce substantial savings in irrigation water,

calculated at between .25 to .5 acre feet of water per

acre per year.85

d. Irrigation Audits

Conducting an audit of current water uses and

expenditures can help a landowner identify waste, and

opportunities to improve efficiency. The audit should

determine the amount of water withdrawn from an

aquifer or surface water source, calculate all irrigation

and farm uses, the cost of such uses, and then identify

any opportunities for increased efficiency. The

information the audit will need to gather consists of

―Field size(s) and shape, obstructions, topography,

flood vulnerability, water table, and access for

operation and maintenance; Type of pump equipment

and energy source and pumping efficiency, if any;

Type of irrigation equipment, age and general state of

repair; records of previous and current crops and water

use; and human assets- available technical ability and

language skills of laborers. Time and skill level of

management personnel‖86

After assessing this

information, the landowner should prepare the

81

There are many different types of flow meters, such as

propeller meters, orifice, venture or differential pressure

meters, magnetic flux meters, and ultrasonic.

82Even though there is no actual flow meter, ―Estimating

irrigation water use from an indirect method can be as

accurate as a direct measurement.‖ BMP Guide.

83 ―Typical impeller meter installations . . . cost between

$600 and $1,000 per meter. Cost for installation of a large . .

. flow meter can be in the tens of thousands of dollars.‖ Id.

84 Conservation tillage works best in conjunction with

certain irrigation methods, such as ―low-pressure center

pivot irrigation and subsurface drip irrigation.‖ Id.

85 Id. See also, Conservation Practice Standard for Residue

Management, No Till/Strip Till (Acre), Code 329A, Natural

Resources Conservation Service, March 1999, et seq.

86 BMP Guide.

following documentation: ―1) the audit report; 2) Cost-

effectiveness analysis; 3) the action plan; 4) Schedule

for implementing the action plan; 5) Documentation of

actual implementation of water efficiency measures

contained in the action plan; and 6) Estimated water

savings and actual water savings for each item

implemented.‖87

2. Land Management Systems

The following BMPs are more specific, and may

not be suited for every irrigator, but when employed

appropriately and in conjunction with other methods,

each of these BMPs can lead to significant water

conservation.

a. Furrow Dikes

Furrow dikes are small earthen dams build up

between furrow ridges. Their purpose is to lessen

water loss caused by runoff, and direct irrigation water

onto crops. They are most useful for landowners that

plant row crops. Furrow dikes can have a significant

impact on water conservation, with estimates at .25

acre feet per acre. In one documented case a

landowner was losing 12% of applied water to runoff,

and with the implantation of furrow dikes, such waste

was completely eliminated. The costs of implementing

furrow dikes range from $5.00 to $30.00 per acre.

b. Land Leveling

Land leveling involves grading agricultural land

to increase uniformity of irrigation and reduce erosion

and wasted runoff. This method is generally used on

land with mild elevation gradients to improve drainage

and flow direction. Leveling increases irrigation

efficiency, but direct water savings are hard to

estimate. Costs range from $50.00 to $400.00 per acre. 88

c. Contour Farming

Contour farming is used on land with a moderate

slope of between 2 and 10%. The method involves

tilling parallel to the natural contour and slope of the

land to promote row drainage and reduce wasted runoff

and ponding. The costs are minimal, and are limited to

87

For more information see Texas State Soil and Water

Conservsation Board, Water Quality Management Plans,

http://www.tsswcb.state.tx.us/programs/wqmp.html.

88 See generally, Irrigation Land Leveling, Natural

Resources Conservation Service, United States Department

of Agriculture, National Conservation Practice Standards

No. 464.

http://www.tsswcb.state.tx.us/programs/wqmp.html


15

accurate assessment of the slope and contour of the

land, while the savings vary on a case by case basis.89

d. Conversion of Supplemental Irrigated Farmland to

Dry-Land Farmland90

This is a riskier BMP, and involves shutting down

supplemental irrigation and watering crops by rainfall

alone. This method is only appropriate in certain

climates, and for certain crops, e.g. cotton, and other

dryland crops. While the water savings are obvious,

crop yield can take a substantial hit when artificial

irrigation is withdrawn.91

This method should be

attempted only after careful consideration of the risks

involved, and only in conjunction with other BMPs

that increase the efficiency of rain flow and runoff.92

e. Brush Management

Brush management involves the removal,

treatment or burning of certain plants and trees to

conserve soil moisture. Water is lost through plant life

through evapotranspiration. Basically, water is drawn

from the soil, up a plant‘s roots to its leaves, where it

vaporizes and is lost to the atmosphere. The water

savings resulting from brush management varies

depending on the area, type of vegetation at issue, and

wildlife, but in some areas it can be up to .55 acre-feet

per year per acre.

f. Lining of On-Farm Irrigation Ditches

Unlined open irrigation channels lose a substantial

amount of water through seepage. For example, a 5

foot ditch half a mile long loses .5 acre feet per day. If

the ditch is only used 40 days a year, this equals 20

acre feet of lost water a year. Lining a ditch can reduce

this loss by 80% or more. There are several different

types of lining, each with a different cost. The

cheapest is EPDM, which is around $.085 per square

foot, and the most expensive, but most durable, is

concrete, which can cost $2.50 to $3.50 per square

foot.

89

See also, Conservation Practice Standard, Contour

Farming (Acre), Natural Resources Conservation Service,

February 2000, NRCS, NHCP Code 330.

90 I have included this BMP since it was addressed in the

BMP Guide, but at least one knowledgeable individual has

warned me that any farmer would laugh in my face after

reading it.

91 The Texas Agricultural Extension Service estimated that

in some areas crop yields for dry-land farming are 1/3 to ½

of yields produced with supplemental irrigation.

92 See also, P.W. Unger, T.V. Sneed, W.R. Jordan, R. Jensen

(eds.) ―Proc. Intl. Conf. on Dryland Farming, Challenges in

dryland Agriculture- a Global Perspective”, Aug. 1988,

Amarillo/Bushland, Texas. TAES, p. 965.

g. Replacement of On-Farm Irrigation Ditches with

Pipelines

For smaller irrigation ditches, replacement with

pipelines can completely eliminate all loss due to

seepage and evaporation. However, costs can be high,

as the landowner must secure trenching equipment and

contract for pipeline installation. Pipeline capacity is

also significantly less than a traditional irrigation ditch,

so a carful cost benefit analysis is necessary before a

landowner exercises this option.93

In conjunction with

this BMP, landowners can also employ gated and

flexible pipe distribution systems, which convey water

from the pipeline to the furrows or field borders for

water application. Having the water continuously in a

pipeline until application further reduces losses

associated with seepage and evaporation.94

To evenly

distribute water through a gated or flexible pipe

system, a surge flow irrigation system can be used as

well. These systems provide periodic time controlled

irrigation to specific furrows, and can save between 10

and 40% of lost water.95

Caution should be used,

however, as occasionally pipelines can increase water

temperature to undesirable levels, and can prevent

harmful chemicals, such as CO2 and sulfur from

evaporating.

h. Low Pressure Center Pivot Sprinkler Irrigation

Systems

A low pressure center pivot sprinkler system is

vastly superior in efficiency to both flood irrigation

and high/moderate pressure systems. While flood

irrigation has a 50% efficiency rate, and a typical low

angle impact sprinkler working in top condition has at

best an 80% efficiency rate, a properly operated low

pressure system used in conjunction with other BMPs

can have up to a 95% efficiency rate. Conversion to a

low pressure system from a high or moderate pressure

system is cheap and easy, while the cost of installing a

low pressure system on land with no previous sprinkler

system ranges from $300 to $500 per acre. The price

of such a system is easily recouped, however, as it

essentially doubles the available water supply.96

93

See Conservation Practice Standard, Irrigation Water

Conveyance, Low Pressure, Underground, Plastic Pipeline,

5 p. Natural Resources Conservation Service, December

1988.

94 See Irrigation Water Conveyance, Ridgid Gated Pipe,

Natural Resources Conservation Service, United States

Department of Agriculture, October 1985, National

Conservation Practice Standards No. 430HH.

95 See Surge Irrigation, Yonts, C.D., et al., Nebraska

Cooperative Extension NF. 94-176, January 1994.

96 See also, LEPA Conversion and Management, B-1691,

Texas Agricultural Extension Service, New, Leon, and Guy

Flipps.


16

i. Drip/Micro-Irrigation Systems

Drip/micro-irrigation systems are systems that

apply water flow directly to crop roots by surface or

subsurface applicators. This method reduces water

loss, erosion, runoff and evaporation, but is cost

intensive97

. It is usually only used in conjunction with

high value crops to increase crop yield, and not

primarily as a conservation technique.

j. Linear Move Sprinkler Irrigation Systems

Linear Move Sprinklers have comparable costs

and benefits to low pressure center pivot irrigation

systems, but are adapted for lands that have a shape or

elevation change that prohibits center pivot systems.

B. Grazing/Rangeland Best Management

Practices

The Texas rangelands are the states largest

watershed component, and an important source of

ground and surface water.98

Rangelands are used for

grazing and wildlife habitat areas by landowners.

However, poor grazing practices and vegetation control

on rangelands can lead to increased erosion,

downstream flooding, water contamination and loss,

soil degradation, invasion of undesirable plantlife, and

wildlife attrition. The following BMPs can avoid these

results, save water, and prevent contamination.

a. Livestock Exclusion and Fencing

Just like the rest of us, cattle enjoy lounging in a

stream or river, or resting under the shade of riparian

vegetation. However, unlike humans (to an extent)

allowing cattle near or in streams and rivers can lead to

bacterial contamination and bank erosion. Overgrazing

near watercourses can also destroy vegetation

necessary to filter contamination from runoff and storm

water. Livestock waste and other contaminates such as

pesticides are then swept directly into watercourses.

Adequate fencing and exclusion techniques are an easy

method to remedy this problem. However, care should

be taken in selecting fence locations. Cattle tend to

walk along fencelines, which causes rutting and

erosion. If fences are built perpendicular to the

watercourse or contour line, this can funnel runoff and

contamination strait into the stream. If a fence is build

parallel, along the contour, the fence will act as a

barrier to runoff, and the deposited sediment will act as

an additional filter. Managed vegetation buffers can

also aid in prevention of poor runoff qualities.

97

The cost of a typical drip/micro-irrigation system is

between $800 and $1,200 per acre.

98 K. Brian Hays, et al, Rangeland Watersheds The Major

Source of Water for Texans, Texas Agricultural Extension

Service.

b. Alternate Water Supplies and Artificial Shade

Another effective method to keep cattle away

from watercourses is to give them an alternative place

to relax. Providing a tank or water trough and shaded

area away from the watercourse can reduce bacterial

contamination by 57-95%,99

while exclusionary

fencing was found to only reduce contamination by

66%. But unless this technique is used along side good

vegetation and grazing management, flood water and

runoff can still contaminate water sources. Alternate

water supplies can also help with appropriate livestock

spacing, which reduces erosion and overgrazing.

c. Vegetation Management

Keeping rangeland vegetation healthy is important

for a variety of reasons. Proper management of the soil

and vegetation ―directly affects the amount of water

evaporated and transpired back to the atmosphere . . .

determines the amount of infiltration versus runoff, and

sediment and nutrient production, as nonpoint source

pollution.‖ Inadequate vegetation can cause high

volume runoff and down stream flooding, and poses

problems in all of the following areas: ―1) increases

[rangeland] vulnerability to the erosive force of water,

2) increases loss of organic matter in soils, 3) reduces

water storage capacity, 4) increases stream water

temperature, 5) encourages invasion of undesirable

plants, 6) accelerates runoff, and 7) reduces filtration

of sediment necessary maintenance.‖ Landowners can

guard against these results with a variety of methods.

Deferred or Planned grazing should be employed in

order to give pastures time to rest and regrow, the

proper livestock density should be maintained to

prevent overgrazing and excessive biological waste.

Native seed should also be planted and nurtured, with

proper chemicals and mechanical control to prevent the

spread of invasive or exotic species. Proper brush

management techniques should always be followed,

and the use of prescribed fires, where appropriate, to

replenish soil nutrients.100

C. Other Conservation Techniques

1. Conservation Easements

Another option for landowners wishing to

preserve water and other natural resources on

agricultural or rangeland property is to grant a

conservation easement. A conservation easement

requires a landowner to grant their property in trust to a

government agency or registered non-profit landtrust,

99

Kevin Wagner, An Assessment of Grazing Land BMPs for

Riparian Area Protection, Texas Water Resources Institute.

100 See generally, Polluted Runoff: Nonpoint Source

Pollution, Chapter E: Grazing Management, available at

http://www.epa.gov/owow/NPS/MMGI/Chapter2/ch2-

2e.html.

http://www.epa.gov/owow/NPS/MMGI/Chapter2/ch2-2e.html

http://www.epa.gov/owow/NPS/MMGI/Chapter2/ch2-2e.html


17

which holds the legal title of the property in perpetuity.

The terms of the trust are designed to protect the

―conservation values‖ enumerated in the easement

deed. These values are determined by preparing a

―baseline‖ of the property describing its attributes,

resources, wildlife and current uses, and after the

conservation easement is granted no development can

occur on the property that would destroy or impede

those values. A conservation easement does not

prevent continued agricultural or grazing use, and

mineral development is allowed, if the land is protected

by a sufficient surface use agreement. However, a

conservation easement ensures that the property will

never be developed, exploited, partitioned, or used in

any manner that is inconsistent with the intent of the

grant. However, granting a conservation easement also

restricts a landowner‘s ability to drill wells and sell

water, and because the grant is perpetual, a landowner

should fully understand the consequences of deeding

over legal title of their property.

2. Appropriation of Water for Instream Uses

Acquiring a permit for instream use is an

interesting option for a landowner regarding surface

water. The TCEQ authorizes landowners to

appropriate water for the ―beneficial use of instream

flows for such purposes including, but not limited to,

navigation, recreation, hydropower, fisheries, game

preserves, stock raising, park purposes, aesthetics,

water quality protection, aquatic and riparian wildlife

habitat, freshwater inflows for bays and estuaries, and

any other instream use recognized by law. An

instream use is a beneficial use of water.‖ 30 Tex.

Admin. Code §297.1(25). Normally a landowner

could lose their appropriative right if not used

beneficially for a period of 10 years. However, by

acquiring an instream permit the landowner can leave

the water in the watercourse for an indefinite amount

of time, as the instream uses are considered

―beneficial‖ uses. Acquiring such a permit not only

has a beneficial effect for the environment, it is a good

tactic to ensure that a landowner‘s permit does not lose

its priority or become subject to cancellation. And

with the appropriate amendment, a landowner can

always change the use of the water at any point.

V. CONCLUSION

Water acquisition and use is a complex area of the

law, and this paper could not hope to address every

topic and issue in the space allotted. However, the

issues and techniques presented here are a good place

to start for a landowner contemplating how to get water

and how to use if efficiently. If nothing else, a

landowner should at least take these lessons from this

paper: 1) Landowners own their groundwater and need

to protect this interest from oil and gas lessees and the

regulatory encroachment of GCDs; 2) though most

surface water rights are already appropriated, there are

many other methods available to secure surface water,

and 3) a wide variety of helpful and economic Best

Management Practices exist to help landowners

conserve the water they do have and protect water

sources for future users.

water use and conservation: a landowner’s perspective · 2013-10-17 · can do to help preserve...

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