Water Water Everywhere

On today’s show we’re talking about water.

We’re all attracted to water features on a property. A lake, a pond, a canal, a river. All these water features make a property more interesting than a flat area of grass. In addition to the visual appeal, water brings a positive environmental benefit to a property. It provides a refuge for nature, for birds, fish, frogs, insects, and all kinds of vegetation that you may not otherwise find in an open field.

But if you have water on your property, chances are that you don’t own it. The question of ownership of water dates back to riparian water rights. This is an area of law that varies widely from one jurisdiction to another. Generally speaking, the law has been created and interpreted by the courts in response to conflicts between competing legal systems.

There are too many cases to cover on today’s show, but I’ll give you an example from the state of Texas. You’re going to need to perform your own research and due diligence in the location you own property.

The basic idea when it comes to water is the presumption that mother nature was perfect in how the natural environment was created. When we start putting buildings, paving surfaces we start interfering with how the water flows when it rains, and we start interfering with how water is absorbed into the soil.

When we’re talking about water we need to be clear on what kind of water we are talking about, is it ground water or surface water. Generally speaking, Texas groundwater belongs to the landowner. Groundwater is governed by the rule of capture, which grants landowners the right to capture the water beneath their property. The landowners do not own the water but have a right only to pump and capture whatever water is available, regardless of the effects of that pumping on neighbors underground water supply.

Surface water on the other hand is much more complex. It depends on how the surface water is situated. If it is flowing, then the water is owned by the state. If that flowing waterway is a named waterway, then the flow of that waterway might be managed by the Army Corps of Engineers. Altering the bank of the waterway or having water flow into or out of that waterway would require approval from the Army Corps of Engineers.

Surface water in Texas follows two sets of rules, Riparian rights, or Prior Appropriation. The riparian doctrine is based on English common law. The rules in most states and Canadian provinces follow the English Riparian rights. These court-developed rules are used in deciding cases that involve water use conflicts. The basic concept is that private water rights are tied to the ownership of land bordering a natural river or stream. Water rights are controlled by land ownership.

Riparian landowners have a right to use the water, provided that the use is reasonable in relation to the needs of all other riparian owners. Riparian owners retain the right to use water so long as they own the land adjacent to the water.

In the days of the wild west, when land was being explored, the much drier states had much less water. People used water whenever they could find it, regardless who owned the land. In the absence of any rules, people simply took water from streams and used it; that is, they appropriated it. When this practice became legalized, it became known as the Doctrine of Prior Appropriation. 

In some communities, you are allowed to capture rain water. In others, you are not. Finally, many communities will require you to manage your stormwater runoff so as to not harm your neighbors. They may required you to build a stormwater detention pond to provide more controlled runoff during storm events that bring large amounts of rainfall. This is one area where you can’t simply apply what you believe is common sense.