Understanding Water Rights in Texas Real Estate

Water rights are a critical consideration in many Texas real estate transactions, especially as demand increases and water supply becomes more strained. In Texas, ownership and the right to use water depend largely on the type of water and its location — whether it's on the surface or underground, within city limits or in rural areas, or in a navigable waterway.

Surface Water: Diffused vs. Watercourse

Texas distinguishes between diffused surface water (such as rain runoff that hasn’t reached a watercourse) and water in a watercourse (like streams or rivers with defined beds and banks). Diffused surface water belongs to the landowner until it reaches a natural watercourse or evaporates. However, water in a watercourse — including rivers, creeks, and streams — is owned by the state and regulated by the Texas Commission on Environmental Quality (TCEQ).

If the stream is navigable, the state owns not only the water but also the bed and minerals beneath it. Public access is typically allowed. For non-navigable streams, while the water still belongs to the state, the streambed and underlying minerals may be privately owned, and public access is not guaranteed.

In Texas, the distinction between navigable and non-navigable streams plays a critical role in determining ownership, access, and usage rights. A navigable stream is generally defined either by statute or by fact. Statutorily, a stream is considered navigable-in-law if it maintains an average width of at least 30 feet from its mouth upstream, regardless of the amount of water present.

A stream may also be deemed navigable-in-fact if it can be used, in its natural and ordinary condition, as a route for commerce, travel, or trade. Navigable waters are owned by the State of Texas, including the streambed, and are accessible to the public for navigation and recreational use. In contrast, non-navigable streams are typically narrower, lack sufficient flow for commerce, and may be privately owned, including the bed and underlying minerals. Public access is not guaranteed, and any use or crossing may require the landowner’s permission. The legal determination of navigability can be complex and often requires a historical, legal, or survey-based analysis.

Groundwater: The Rule of Capture & GCD Oversight

Texas follows the Rule of Capture, which allows landowners to pump groundwater from beneath their property with minimal restrictions. Groundwater is generally presumed to be percolating and privately owned — but this freedom comes with important caveats.

If your property is located within a Groundwater Conservation District (GCD), the district can regulate:

Spacing from property lines or other wells

Pumping limits

Permitting and well registration requirements

Outside of a GCD, those restrictions generally do not apply, though landowners can still face liability for negligent use (such as subsidence or waste).

GCD boundaries don’t always align with county lines, and multiple districts may exist in the same region. Always verify with the Texas Alliance of Groundwater Districts (TAGD) or your county’s appraisal district to determine local oversight.

Well Drilling: City vs. ETJ vs. Rural Land

Inside City Limits: Private well drilling is often restricted or regulated by local ordinance. Permits are typically required.

ETJ (Extraterritorial Jurisdiction): The city may exert some control, but rules usually defer to county regulations or the GCD.

Outside City & ETJ: Fewer restrictions. You’re often governed solely by your GCD, if applicable, and the Rule of Capture.

Keep in mind that groundwater may still be regulated even if you're far from a municipal boundary, especially in areas experiencing high demand or aquifer depletion.

Use of Streams and Impoundments

Landowners can use water flowing through or adjacent to their land for domestic and livestock purposes without a permit. However, any commercial or irrigation use of surface water requires a TCEQ water rights permit, and these are based on the principle of prior appropriation — "first in time, first in right."

Building a pond or impoundment on your land is typically allowed without a permit if the storage capacity is under 200 acre-feet and the use is non-commercial. For larger impoundments or commercial use, TCEQ permitting and dam safety requirements may apply.

Riparian Rights & Downstream Impacts

If your land abuts a watercourse, you may have riparian rights to use the water in its natural flow for domestic purposes. However, such use must be reasonable and not harmful to downstream users. Texas courts have upheld that riparian rights can sometimes supersede permitted water rights, but this is a complex and evolving legal area.

Contact Information

Texas Commission on Environmental Quality (TCEQ)

Website: www.tceq.texas.gov

Phone: (512) 239-1000

Texas Alliance of Groundwater Districts (TAGD)

Website: www.texasgroundwater.org

Local Groundwater Conservation Districts (Central Texas Examples):

Hays Trinity GCD: https://haysgroundwater.com

Barton Springs Edwards Aquifer GCD: https://bseacd.org

Lost Pines GCD (Bastrop/Lee Counties): https://lostpineswater.org

Hill Country Underground Water Conservation District (Gillespie County): https://www.hillcountryuwcd.org

Closing Thoughts & Legal Disclaimer

Water rights in Texas are some of the most complex in the nation, with distinctions between surface and groundwater, public vs. private ownership, and city vs. rural jurisdiction. These rules are deeply rooted in case law, statute, and local regulation. Because of the significant legal implications, anyone dealing with water access or rights — especially involving wells, streams, or permitting — should consult a qualified attorney.

Recommended Water Rights Attorneys (Austin Area):

Graves Dougherty Hearon & Moody – Environmental & Water Law Group

www.gdhm.com

Lloyd Gosselink Rochelle & Townsend, P.C.

www.lglawfirm.com

Perales, Allmon & Ice, P.C.

www.texasenviroattorney.com