Rural relationships – domestic and livestock use of surface water

Margaret-Menicucci

With limited water resources in times of drought,  many landowners are concerned about Domestic and Livestock use (“D&L Use”). Though a common practice on rural land, not all landowners understand their rights and obligations in relationship to other users of their  river or stream. A landowner who has water that runs adjacent to their property or even through it, will likely have a dam on the property that creates a reservoir to hold water. This right to dam and use the water, in limited quantities, does not require a state permit; the State views the water use as a riparian right and provides a permitting exemption for D&L use.   But there are some  general rules to keep in mind:
•    Each landowner with land along the stream or river has equal rights in the normal flow of the body of water.
•    D&L use has quantity limits and the use must be reasonable with respect to the rights of others.
•    Water obtained for D&L use must be used on the land that is adjacent to the river or stream.
•    Landowners cannot put a dam on navigable waters of the State using the exemption (a permit is required).
Using these  general rules as a guideline, every landowner should ask:what is a reasonable use with respect to the rights of others and what protection does a landowner have when they are concerned about a neighbor’s dam or D&L use?
The “reasonable use” concept has been interpreted to mean that the owner of a reservoir  for D&L use must be able to return some water to the stream if it is needed by other D&L users (for example during a drought).  If water is not made available from a D&L reservoir,  the downstream user could turn to the Texas Commission on Environmental Quality (“TCEQ”) or the local court for enforcement.
The D&L use exemption is extremely valuable to landowners.  If you have questions about the water rights on your property, we can help you understand and protect this valuable resource on your  land .

3 Comments

  1. R. W. (Dick) Winters
    August 19, 2014

    Dear Margaret, Thank you for the article. Few, if any, “new” property owners are aware of the responsibilities that come with ownership. I wish your article was mandatory reading for every realtor. It might prevent problems such as the one you and Patrick were so kind to help me with…Your friend, Dick
    PS Please pass my best wishes on to Cassie and Patrick. When do you think would be a good time to get us all together ?

  2. Jeff Goodson
    August 19, 2014

    How will the D&L use exemption be affected if the EPA’s current regulatory effort to control all surface waters–on navigable as well as non-navigable streams–succeeds?

    Thanks.

  3. William Calvert
    August 19, 2014

    The matter of “navigable stream” is a sort/ weak spot in riparian law in Texas. Supposedly any stream 30 feet wide from cut bank to cut bank is navigable whether it has water in t or not. Cut bank to cut bank is vague at best. What is a cut bank in a stream bed with extensive gravel, but has sycamore trees growing along the gravel – trees that will be wiped out in the next mega-flood?

    And suppose that there is a constriction n the river/ stream bed such that at one place or more the stream bed is less than 30 feet and then it widens to more than 30 feet further up stream. Is it navigable below the constriction, not navigable at the constriction and then navigable again upstream from the constriction?

    None of this makes much sense from the stand point of running a boat – especially in cases where there is no water in the bed.

    I wish somebody would figure this out and give some meaningful guidelines to those of us who have a “stream” running through our property.

    William Calvert

Call Now
Directions
X