Water Rights Considerations...
As the population of Fredericksburg and the surrounding Texas Hill Country has grown over the years and as it is likely to continue to grow, issues concerning the availability of and access to water will grow in prominence. Anyone considering the purchase of land in our area should become generally familiar with "water rights" and the processes that must be followed to access this precious resource. This Texas Water Law primer is good place to start...MORE
The right to use water often depends on whether the source of the water originates from above or below the ground. In general terms, surface water found in defined watercourses (rivers, streams, creeks, lakes, etc.) is owned by the State of Texas and is subject to state permitting requirements, whereas diffused-surface water (ponds, tanks, etc.) and groundwater (e.g. aquifers) are generally attached to the land and subject to ownership by the landowners.
Anyone curious about the municipal water supply of Fredericksburg, TX will be pleased to know that our water system has received a "Superior Water Supply" rating from the Texas Commission on Environmental Quality..MORE
Water found below the
earth's surface in the crevices of soil and rocks is called percolating water,
or more commonly, groundwater. This is water typically pumped from aquifers (underground rivers, basically) for farm, ranch, domestic, commercial and municipal uses. This water is subject to the "rule of capture" that allows landowners to withdraw water under their property with little regard to other groundwater users, as long as the water is beneficially used and isn't intentionally wasted or negligently result in the subsidence (the sinking of land as a result of water being removed from beneath it, e.g. a sinkhole) of neighboring land.
It should be noted that groundwater rights (like mineral rights) are rights that are severable from the other bundle of rights associated with the ownership of real property. In other words, groundwater rights can be bought/sold and/or leased separate and apart from the land. This is a complex issue and one worthy of experienced legal counsel.
To enable effective management of the state’s groundwater resources in areas where critical groundwater problems exist or may exist in the future, the Legislature has authorized the Texas Commission on Environmental Quality (TCEQ), the Texas Water Development Board (TWDB), and the Texas Parks and Wildlife Department (TPWD) to study, identify, and delineate priority groundwater management areas (PGMAs), and initiate the creation of groundwater conservation districts (GCDs) within those areas, if necessary. “Critical groundwater problems” are defined as shortages of surface water or groundwater, land subsidence resulting from withdrawal of groundwater, or contamination of groundwater.
After exhaustive studies of available resources, rainfall patterns, aquifer recharge rates, existing populations, projected growth, etc., Bandera, Blanco, Gillespie, Kendall, and Kerr and parts of Bexar, Comal, Hays, and Travis Counties were designated as the Hill Country PGMA. The knowledge that this resource is limited and (in many ways) endangered lead to the subsequent formation of the Hill County Underground Water Conservation District (HCUWCD).
The HCUWCD was created for the purpose of conserving, preserving, recharging, controlling subsidence, protecting and preventing waste of groundwater in the aquifers, and to implement proper management techniques to address local groundwater conditions within Gillespie County.
Simply put, the HCUWCD is charged with issuing permits for and monitoring anyone seeking to tap into the groundwater resources of our area. It is especially critical that property developers familiarize themselves with the District as the Gillespie County Subdivision Ordinance (pg. 30) mandates evidence of water availability and standards established by TCEQ and the District.
Surface water rights are subject to the jurisdiction of the Texas Commission on Environmental Quality (TCEQ). Anyone owning or considering the purchase of property featuring "live water" would be well-served to become familiar with the rights and limitation inherent in accessing this water.
In Texas, there are two primary types of surface water rights: perpetual rights and limited-term rights. Perpetual water rights generally share the characteristics of having an assigned "prioritydate", having a specified volume of water that a holder may take and an associated "diversion rate" and an ability to impound (store) the water. Limited-terms rights include term permits, temporary permits, seasonal permits, contractual permits and emergency permits.
As with mineral and groundwater rights, surface water rights are deemed to be severable from the land and may also be bought/sold and/or leased separate and apart from the real property. Believe it or not, surface water rights, the laws that govern them and the lawsuits that challenge them are even more complex than those associated with groundwater issues. An attorney experienced in this specialized area of law is worth their weight in, well, water!
The Texas Commission on Environmental Quality (TCEQ) is the agency charged with protecting our state's natural resources. This is the agency primarily responsible for surface water permitting.
HCUWCD is the best local resource from which to gather groundwater information. Special attention should be paid to the two designated High Historical Groundwater Use Areas (HHUA) in Gillespie County.
The Texas Water Development Board (TWDB) is good resource for issues concerning groundwater resources, water conservation and surface water mapping and data. A fantastically useful Guide to Water and Water Rights Marketing is published by the TWDB and is "required reading" for anyone interested in the topic of water rights transfers.
Disclaimer: Water rights, permitting, transfers, sales, etc. are hugely complex and ever-changing issues. This site is not intended to be the definitive guide to all things "water". Please consult an expert in this field for updates on the latest trends, issues and legal matters regarding water rights.