How Rights to Surface Water are Prioritized
- Can my neighbor build a dam/pond/lake on the creek and stop the flow of the creek?
- Can you send someone out to look at the creek, pond, etc?
- Does (insert name, entity here) have a Water Rights Permit and if so, what is their priority date?
- What is a priority date? What is the Prior Appropriation Doctrine?
- What is a Limited-Term Right?
- Which uses are exempt from the permitting requirement?
This page, updated in August 2009, addresses questions about how rights to surface water are prioritized.
Can my neighbor build a dam/pond/lake on the creek and stop the flow of the creek?
A person is allowed to build a reservoir of up to 200 acre-feet in capacity on a non-navigable stream when they own all land where water will be impounded for domestic and livestock (D&L) purposes. (A non-navigable stream is defined as a stream or streambed that is less than 30 feet in average width from the mouth of the stream up.) This does not require a water rights permit from the TCEQ. The intent of the D&L exemption from permitting is that the D&L users will share the water.
Can you send someone out to look at the creek, pond, etc?
Any enforcement questions should be referred to the appropriate Watermaster or region office.
Does (insert name, entity here) have a Water Rights Permit and if so, what is their priority date?
See the regularly updated water rights database of all active and inactive water rights, including priority dates, or you may contact the Water Rights Permitting Team at 512-239-4691 for assistance.
What is a priority date? What is the Prior Appropriation Doctrine?
The Prior Appropriation Doctrine can be summed up by first in time, first in right. The first water rights (senior water rights) must be satisfied before the later water rights (junior water rights). The priority date of a water right establishes that place in line of junior and senior water rights.
What is a Limited-Term Right?
To maximize use of state waters, we also may issue permits for limited-term rights in basins where the water supply is fully appropriated but not yet being fully used. A city or town, for example, may have acquired a water right to ensure that enough water is available for future growth. In the meantime, that water could be available for someone else to use. In a drought or other shortage, these limited-term rights are the first to lose lawful access to water.
- Term permits. Term permits are issued mainly to industries, mines, and agricultural enterprises, usually for 10 years. When the term is up, the permit can be renewed if that water is still not being used by other water-right holders.
- Temporary permits. Temporary permits are issued for up to three years. We issue about 200 temporary permits each year. Many of these permits are for road-construction projects, where the water is used to suppress dust, to compact soils, and to start the growth of new vegetation. Temporary permits are also issued for mining and irrigation. Temporary permits that allow the use of less than 10 acre-feet of water for no more than one year are issued by the local watermaster, if there is one. Our regional offices issue these smaller temporary permits wherever there is no watermaster. We may stop granting these permits in basins that are affected by drought.
Which uses are exempt from the permitting requirement?
Some uses of surface water do not require a permit from the state. These exemptions from the permitting requirement are explained in Section 11.142 of the Texas Water Code, as follows:
Sec. 11.142. PERMIT EXEMPTIONS. (a) Without obtaining a permit, a person may construct on the person's 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.
(b) 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.
(b) Without obtaining a permit, a person may construct on the person's property in an unincorporated area a dam or reservoir with normal storage of not more than 200 acre-feet of water for commercial or noncommercial wildlife management, including fishing, but not including fish farming.
(c) Without obtaining a permit, a person who is drilling and producing petroleum and conducting operations associated with drilling and producing petroleum may take for those purposes state water from the Gulf of Mexico and adjacent bays and arms of the Gulf of Mexico in an amount not to exceed one acre-foot during each 24-hour period.
(d) Without obtaining a permit, a person may construct or maintain a reservoir for the sole purpose of sediment control as part of a surface coal mining operation under the Texas Surface Coal Mining and Reclamation Act (Article 5920-11, Vernon's Texas Civil Statutes ). Note: This section was amended in the 81st Legislative Session of 2009 to add that the use of water from these ponds for compliance with applicable laws, rules or regulations relating to fire or dust suppression is also allowable without obtaining a permit. This will become effective September 1, 2009.
The definitions for the uses “domestic” and “livestock” are located in Chapter 30 of the Texas Administrative Code in Section 297.1 as follows:
Domestic use is defined as: The use of water by an individual or a household to support domestic activity. Such use may include water for drinking, washing or culinary purposes; for irrigation of lawns, or of a family garden and/or orchard; for watering of domestic animals; and for water recreation including aquatic and wildlife enjoyment, If the water is diverted it must be diverted solely through the efforts of the user. Domestic use does not include water used to support activities for which consideration is given or received or for which the product of the activity is sold.
Livestock use is defined as: The use of water for open-range watering of livestock, exotic livestock, game animals or fur-bearing animals. For purposes of this definition, the terms livestock and exotic livestock are to be used as defined in §142.001 of the Agricultural Code, and the terms game animals and fur-bearing animals are to be used as defined in §63.001 and 71.001, respectively, of the Parks and Wildlife Code.
Sec. 11.1421. PERMIT EXEMPTION FOR MARICULTURE ACTIVITIES. (a) In this section, "mariculture" means the propagation and rearing of aquatic species, including shrimp, other crustaceans, finfish, mollusks, and other similar creatures in a controlled environment using brackish or marine water.
(b) Without obtaining a permit and subject to the requirements and limitations provided by Subsections (c) through (e) of this section, a person who is engaged in mariculture operations on land may take for that purpose state water from the Gulf of Mexico and adjacent bays and arms of the Gulf of Mexico in an amount appropriate to those mariculture activities.
(c) Before a person first takes water under Subsection (b) of this section, the person must give notice to the commission of the proposed appropriation.
(d) Each appropriation of water made under Subsection (b) of this section shall be reported to the commission in the manner provided by the commission’s rules.
(e) After notice and hearing, if the commission determines that as a result of low freshwater inflows appropriation of water under Subsection (b) of this section would interfere with natural productivity of bays and estuaries, the commission shall issue an order requiring interruption or reduction of the appropriation.