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Texas groundwater rights operate under completely different rules than surface water. Yesterday we covered surface water, which belongs to the state. When it comes to Texas groundwater rights, the landowner is the owner.
Understanding this matters for anyone buying, selling, or developing land in the Lone Star State.
You Own the Groundwater Beneath Your Land
The law is clear on this point. Senate Bill 332, passed in 2011 and effective September 1, 2011, amended Texas Water Code §36.002 to state that “the legislature recognizes that a landowner owns the groundwater below the surface of the landowner’s land as real property.”
This wasn’t a new concept…Texas courts had recognized Texas groundwater rights since 1904. But SB 332 codified it explicitly, confirming that Texas groundwater rights are property rights that can be bought, sold, or severed from surface ownership.
This means groundwater can be:
- Sold separately from the land
- Leased to others
- Pledged as collateral
- Passed to heirs
When you buy land in Texas, you’re typically buying the rights too, unless they’ve been severed in a prior transaction.
The Rule of Capture
The groundwater rights follow the “rule of capture,” established in the 1904 Texas Supreme Court case Houston & Texas Central Railway Co. v. East. This means you have the right to pump water from beneath your property and use it, even if doing so affects your neighbor’s well.
In that landmark case, a railroad company drilled a well that pumped so much water it drained a neighboring landowner’s well dry. The Texas Supreme Court ruled in favor of the railroad, holding that Texas groundwater rights include the right to pump without liability to neighbors as long as the pumping isn’t malicious or wasteful.
There are limits to Texas groundwater rights. You cannot:
- Pump water maliciously to harm a neighbor
- Pump water wastefully
- Cause land subsidence on neighboring property through negligent pumping
- Drill a slant well that crosses property lines
But within those boundaries, Texas groundwater rights give landowners broad authority to pump and use groundwater.
We recently covered the fight for ground water rights happening in East Texas.
Groundwater Conservation Districts
While Texas give landowners ownership, they don’t provide unlimited freedom to pump. Texas regulates groundwater through Groundwater Conservation Districts (GCDs), local entities with authority to manage the resource.
According to the Texas Water Development Board:
- 98 confirmed GCDs currently operate in Texas (not including subsidence districts or the Edwards Aquifer Authority)
- These districts cover approximately 173 of Texas’s 254 counties
- GCDs regulate roughly 70 percent of the state’s land area
- 60 GCDs cover single counties; 38 span multiple counties
The largest district, High Plains Underground Water Conservation District No. 1, covers over 10,700 square miles across the Panhandle. The smallest, Red Sands GCD, covers about 114 square miles.
If your property falls within a GCD, the district’s rules affect your Texas groundwater rights.
What GCDs Regulate
Each GCD operates under its own rules that shape how groundwater rights function locally:
Well permits – Most GCDs require permits for new wells, especially those capable of producing significant quantities.
Well spacing – Rules governing how close wells can be drilled to property lines or other wells.
Production limits – Some districts cap annual pumping amounts, particularly in areas where aquifers are declining.
Reporting requirements – Permit holders may need to report annual water use.
Drilling standards – Requirements for well construction, casing, and completion.
Rules vary significantly between districts. What’s permitted in one GCD may require special authorization in another. Always check the specific rules affecting your groundwater rights.
The Domestic and Livestock Exemption
Similar to surface water, Texas groundwater rights law provides an important exemption for basic use.
Under Texas Water Code §36.117(b), GCDs must provide an exemption from permit requirements for wells used solely for domestic use or providing water for livestock or poultry if the well is:
- Located on a tract of land larger than 10 acres, AND
- Drilled, completed, or equipped so that it is incapable of producing more than 25,000 gallons per day
This protects rural landowners’ rights to drill a well for household water and cattle without navigating the full permit process.
Texas Groundwater Rights and Land Value
Texas groundwater rights increasingly affect land values, particularly in areas with:
- Declining aquifers – Where water scarcity drives prices higher
- Active GCDs – Where permits may limit future use
- Growing municipal demand – Cities are buying rural Texas groundwater rights for future supply
Properties with documented Texas groundwater rights, existing permitted wells, and clear GCD compliance are more attractive to buyers than properties with uncertain water situations.
As a land professional we have not the GCD affect the value of land adversely here in North and Central Texas. We see the value issue in areas where water is scarce and require say rain reclamation versus a well.
When buying land, verify your Texas groundwater rights:
- Is the property in a GCD? (Use TCEQ’s online viewer to check)
- Are existing wells permitted or exempt?
- Have Texas groundwater rights been severed from the property?
- What production limits apply?
Texas Groundwater Rights Can Be Severed From Land
This is critical for transactions. Unlike surface water rights (which are always state property), groundwater can be separated from land ownership. We have seen this in west Texas with rotational crop land.
A previous owner may have sold or leased the Texas groundwater rights while retaining the surface. If you buy that land without checking, you might discover you don’t own the water beneath it.
Always verify ownership during due diligence. Title searches should specifically examine whether water rights were reserved or conveyed in prior transactions.
Key Takeaways
Groundwater rights give landowners significant ownership but also require attention to local regulation:
- You own the groundwater beneath your land as real property
- The rule of capture allows you to pump and use it, with some limits
- 98 GCDs regulate Texas groundwater rights across approximately 173 counties
- Domestic and livestock wells under 25,000 gallons/day on tracts over 10 acres are typically exempt from permits
- Texas groundwater rights can be severed from land—verify ownership before buying
Understanding your Texas groundwater rights protects that value.
Have questions about Texas groundwater rights or GCD regulations? Contact us — we’re here to help.
References
- Texas Water Code §36.002 – Ownership of Groundwater. As amended by Senate Bill 332, 82nd Legislature, effective September 1, 2011. Available at: https://capitol.texas.gov/tlodocs/82R/analysis/html/SB00332F.htm
- Houston & Texas Central Railway Co. v. East, 81 S.W. 279 (Tex. 1904). Establishing the rule of capture in Texas.
- Texas Water Code §36.117 – Exemptions; Exception; Limitations. Available at: https://codes.findlaw.com/tx/water-code/water-sect-36-117.html
- Texas Water Development Board. Groundwater Conservation Districts. Available at: https://www.twdb.texas.gov/groundwater/conservation_districts/
- Texas Alliance of Groundwater Districts. GCD Index. Available at: https://texasgroundwater.org/resources/gcd-index/
- Texas State Library. “Water Issues in Texas: Groundwater and the Rule of Capture.” Available at: https://www.tsl.texas.gov/lobbyexhibits/water
If you missed yesterdays blog take a look here. We covered Texas Surface Water Rights.
