Texas Water Rights: Surface Water, Groundwater, and the Rule of Capture

Ask ten Texans who owns the water on a piece of land and you may get ten confident answers — most of them partly right. Texas water law is old, layered, and full of distinctions that matter enormously when a well runs low, a neighbor drills, a city comes shopping for supply, or a deed turns out to have severed the water years ago.

Texas uses different rules for different water

The single most important idea in Texas water law is that the rules depend on which water you are talking about. Texas treats at least three categories differently:

• Groundwater — water beneath the surface in aquifers and other formations;
• State surface water — water in rivers, natural streams, lakes, bays, and defined watercourses;
• Diffused surface water — rainfall and runoff moving across land before it reaches a defined watercourse.

A landowner may hold strong rights in one category and almost none in another on the very same acre. Answering "who owns the water" always starts with sorting the water into its legal category.

Who owns groundwater in Texas?

Texas landowners generally own the groundwater beneath their property as real property — the Texas Legislature has recognized this in the Water Code, and the Texas Supreme Court confirmed in Edwards Aquifer Authority v. Day (2012) that a landowner has a constitutionally protected interest in groundwater in place. That ownership holds unless the groundwater estate has been reserved, sold, leased, conveyed, or otherwise severed in the property's chain of title.

Ownership, however, does not guarantee:

• unlimited pumping;
• a specific volume of water;
• that a well will remain productive;
• freedom from groundwater-district regulation;
• freedom from contractual restrictions;
• freedom from recognized legal exceptions.

What is the rule of capture?

The rule of capture is the common-law doctrine, recognized in Texas since Houston & Texas Central Railway Co. v. East (1904), that governs disputes between neighbors over groundwater pumping. Stated carefully: a landowner may generally produce groundwater from beneath the property without liability merely because the pumping lowers the water table or affects a neighboring well.

In other words, if your neighbor's lawful well causes your well to weaken, Texas courts have generally not treated that alone as a legal injury. The rule reflects a nineteenth-century judgment that groundwater movement was too "secret" and "occult" to litigate — a rationale hydrology has long outgrown, but a doctrine the Texas Supreme Court has repeatedly declined to abandon, most notably in Sipriano v. Great Spring Waters of America (1999), where the court pointed to legislatively created groundwater districts as the state's preferred management answer.

The rule of capture is not an absolute right, and it is a mistake to describe it as one.

Limits and exceptions to the rule of capture

Texas law recognizes real limits on groundwater pumping, including:

• Malicious pumping intended solely to harm a neighbor;
• Willful or wanton waste of groundwater;
• Negligent pumping that causes land subsidence on neighboring property (recognized in Friendswood Development Co. v. Smith-Southwest Industries, 1978);
• Trespass — for example, a well bore that crosses property boundaries;
• Groundwater conservation district rules, where a district exists;
• Special aquifer or subsidence-district laws, such as the Edwards Aquifer Authority Act and the Harris-Galveston and Fort Bend subsidence districts.

Contracts add another layer: a groundwater lease, sale, surface-use agreement, or deed restriction can restrict pumping regardless of what the common law would otherwise allow.

Groundwater conservation districts

Groundwater conservation districts are Texas' preferred method of groundwater management — the Legislature has said so expressly in Chapter 36 of the Water Code. A district is a local governmental body with authority to regulate groundwater production inside its boundaries.

According to the Draft 2027 State Water Plan, as of 2026 there are 98 confirmed groundwater conservation districts — excluding the two subsidence districts and the Edwards Aquifer Authority — located partly or entirely in 173 of Texas' 254 counties. That means district rules apply to much, but not all, of the state; outside district boundaries, the common-law rule of capture operates with fewer regulatory limits.

Depending on the district, rules may include:

• well registration;
• drilling permits;
• production permits;
• well spacing requirements;
• metering;
• pumping reports;
• production limits;
• drought restrictions;
• transport or export requirements;
• fees.

Because districts differ significantly, the practical first step for any well question is identifying whether the land sits inside a district and reading that district's rules. The Texas Water Development Board maintains current district information — check the current official TWDB source rather than relying on older counts or maps.

Exempt and nonexempt wells

Chapter 36 of the Water Code generally exempts certain wells from district permitting — most familiarly, wells used solely for domestic use or for livestock or poultry on tracts larger than 10 acres, drilled and operated within stated production limits. Districts also commonly exempt certain rig-supply and other statutory categories.

Two cautions. First, "exempt" usually means exempt from the permit requirement, not from everything — registration, spacing, and well-construction standards may still apply. Second, exemption categories and thresholds come from statute and district rules that can change, and districts apply them to specific facts. A landowner planning a well should confirm current requirements with the district (or, outside a district, with the Texas Department of Licensing and Regulation's well-driller rules) before drilling.

Can groundwater rights be sold or severed?

Yes. Because Texas treats groundwater in place as real property, groundwater rights may be reserved, sold, leased, conveyed, or transferred separately from the surface — just as mineral rights can be. A rancher may sell land and keep the water; a city or water supplier may buy or lease groundwater under land it never intends to own; a deed decades back may have quietly reserved the groundwater estate.

That is why anyone buying rural land, inheriting family property, or negotiating with a water purchaser should review:

• deeds and the full title history;
• reservations in prior conveyances;
• easements;
• groundwater leases;
• surface-use agreements.

If the groundwater has been severed, the surface owner may not control — or benefit from — the water beneath their own land.

Coyote Lake Ranch and the accommodation doctrine

Severance creates a practical question: how much of the surface may a severed groundwater owner use to get at the water? In Coyote Lake Ranch, LLC v. City of Lubbock (2016), the Texas Supreme Court applied the accommodation doctrine — developed in oil and gas law — to a dispute involving severed groundwater and surface ownership.

The careful statement of the result: absent an agreement providing otherwise, a severed groundwater owner may have an implied right to use as much of the surface as reasonably necessary to access and produce groundwater, but the right is not unlimited and must be exercised with due regard for the surface owner. Where the groundwater owner has reasonable alternatives that would avoid substantially impairing the surface owner's existing use, the doctrine may require accommodation.

For landowners, the practical lesson is that written agreements beat implied doctrines: a groundwater sale or lease can, and usually should, spell out surface use, well locations, roads, restoration, and damages, rather than leaving those questions to litigation.

Who owns surface water?

Texas generally treats state surface water very differently from groundwater. State surface water generally includes water in rivers, natural streams, lakes, bays, and defined watercourses, and it is held by the state in trust for the public. Owning land along a river does not make the river's water yours.

To divert or impound state water, a person generally needs a water right from the Texas Commission on Environmental Quality (TCEQ) unless a statutory exemption applies. Texas surface-water rights largely follow prior appropriation — "first in time, first in right" — administered through permits with priority dates, though some older riparian-based rights were adjudicated into the system decades ago.

Diffused surface water and rainfall runoff

Not every drop of surface water automatically belongs to the state. Rainwater and diffused surface runoff generally belong to the landowner while the water remains on the property and before it enters a defined natural watercourse. That is why rainwater harvesting is lawful in Texas (and encouraged by state policy), and why a landowner can generally capture runoff on their own land — up to the point where the water reaches a creek, stream, or other defined watercourse and becomes state water.

The boundary question — what counts as a "defined watercourse" — is fact-specific and has generated real disputes. A drainage swale, a draw, and a named creek can sit on a legal spectrum.

Building a pond or reservoir

Stock ponds are a Texas fixture, and the Water Code accommodates them: Section 11.142 generally allows a person, without a TCEQ permit, to construct on their own property a dam or reservoir with normal storage of not more than 200 acre-feet for domestic and livestock purposes (with related provisions covering certain fish, wildlife, and commercial uses). Larger impoundments, ponds on defined watercourses, or uses outside the exemption generally require a permit.

Before building, a landowner should confirm the current exemption terms, check dam-safety rules for larger structures, and consider drainage effects on neighbors — altering diffused runoff in ways that damage adjoining land can create liability under Water Code Section 11.086.

Questions to ask before selling or leasing groundwater

• Exactly what is being conveyed — all groundwater, specific aquifers, or specific volumes?
• Is it a sale, a lease with a term, or an option?
• What surface rights come with it — well sites, roads, pipelines, power?
• How is payment structured — lump sum, annual, or per-acre-foot produced?
• Who obtains and holds district permits, and who bears the risk of rule changes?
• What happens to existing wells, livestock, irrigation, and household supply?
• What restoration, damage, and indemnity terms protect the surface?
• Does the agreement bind heirs and future buyers, and how does it affect financing and value?
• Could the conveyance affect agricultural appraisal or the homestead?

Primary sources

Texas Water Code Chapters 11 (surface water; Sections 11.086, 11.142) and 36 (groundwater conservation districts; ownership recognized in Section 36.002), available at the Texas Statutes site. Texas Supreme Court decisions: Houston & T.C. Ry. Co. v. East (1904); Friendswood Development Co. v. Smith-Southwest Industries, Inc. (1978); Sipriano v. Great Spring Waters of America, Inc. (1999); Edwards Aquifer Authority v. Day (2012); Coyote Lake Ranch, LLC v. City of Lubbock (2016).

Agency sources: Texas Commission on Environmental Quality (surface-water rights and permitting) and the Texas Water Development Board, including the Draft 2027 State Water Plan — Phase I (April 16, 2026), which reports 98 confirmed groundwater conservation districts in 173 of 254 counties as of 2026, excluding the two subsidence districts and the Edwards Aquifer Authority.

Last reviewed July 10, 2026. This article provides general educational information — not legal, engineering, hydrological, or other professional advice. Water law is fact-specific; district rules, statutes, and case law change. Verify current sources and consult qualified professionals about your specific situation.

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