With the amount of rainfall we have had in recent months, many landowners are concerned about Domestic and Livestock use of surface water(“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.