Yes, using groundwater on private property is generally legal in Texas, but land ownership does not give a property owner unlimited control over underground water. Texas recognizes a landowner’s ownership rights in groundwater beneath the property, traditionally governed by the “rule of capture.” At the same time, groundwater conservation districts can regulate wells and groundwater production, and state law imposes important limits on wasteful or harmful pumping.
What Is the Rule of Capture?
Texas follows the rule of capture for groundwater. The Texas Water Development Board explains that groundwater is the property of the landowner and that the rule of capture generally allows a landowner to pump available groundwater, even when pumping affects neighboring wells. However, Texas courts have recognized limits.
A landowner generally cannot use groundwater in a way that amounts to malicious harm to a neighbor, waste the resource, negligently cause subsidence on adjoining land, or drill a slant well that crosses a neighboring property line. These limits mean that groundwater ownership is a legal right, not an unrestricted right to pump under every circumstance.
Can a Landowner Pump Groundwater for Personal Use?
Generally, yes. A landowner may use groundwater for household needs, gardening, livestock, and other lawful purposes. However, whether a well requires a permit can depend on the location and the rules of the groundwater conservation district governing the property.
Texas has 98 groundwater conservation districts, and they cover nearly 70% of the state’s area. These districts can regulate well spacing and groundwater production and may require permits for non-exempt wells.
Do You Need a Permit for a Private Well?
Not always. Texas Water Code Section 36.117 requires groundwater conservation districts to provide certain exemptions from permit requirements. One important exemption applies to a well used solely for domestic use or for providing water to livestock or poultry when the well is on a tract larger than 10 acres and is incapable of producing more than 25,000 gallons of groundwater per day.
The statute also says a district may not restrict production from a well meeting that exemption. However, the exemption can be lost if the water is later used for purposes outside the statutory requirements.
Are All Private Wells Exempt?
No. The exemption depends on specific statutory conditions, and individual groundwater conservation districts may have additional registration and construction requirements. A private well owner may also have to comply with state well-construction rules.
The Texas Water Development Board states that private water well owners generally do not register wells with the state unless the property is within a groundwater conservation district. However, when a new well is drilled, a registered water-well driller or a landowner drilling the well must submit a State of Texas Water Well Report.
Can a Groundwater District Restrict Your Use?
Yes, in circumstances authorized by law. Groundwater conservation districts may regulate non-exempt wells through permits, production limits, spacing requirements, and other rules intended to conserve and protect groundwater resources.
A district’s rules can therefore make a major difference to a property owner. Before drilling or significantly increasing groundwater production, an owner should determine whether the property lies within a district and review that district’s current requirements.
Can You Sell or Transfer Groundwater?
Groundwater ownership does not automatically mean a landowner can transfer unlimited quantities of groundwater without regulation. Texas Water Code Chapter 36 authorizes groundwater conservation districts to regulate groundwater production and, in certain circumstances, transportation of groundwater outside a district.
Commercial pumping or large-volume production can therefore involve substantially different legal requirements from ordinary residential use.
What About Neighboring Wells?
Groundwater pumping can affect nearby wells, particularly in areas with heavy production or limited groundwater availability. The rule of capture generally does not guarantee a neighboring landowner a fixed amount of groundwater. Texas Water Code Section 36.002 expressly states that groundwater ownership does not give a landowner the right to capture a specific amount of groundwater beneath the property.
However, recognized common-law limits and groundwater-district rules can provide important protections.
What Should Property Owners Check?
Before drilling or using a private well, property owners should identify the groundwater conservation district, determine whether the proposed well qualifies for an exemption, review well-construction and registration requirements, and check any applicable local or district rules. For significant commercial or agricultural production, professional legal and groundwater advice may be appropriate.
Conclusion
Using groundwater on private property is generally legal in Texas, and landowners have recognized ownership rights in groundwater. However, those rights are subject to the rule of capture’s common-law limitations and to lawful regulation by groundwater conservation districts.
A small domestic or livestock well may qualify for a statutory permit exemption when specific conditions are satisfied, while larger or non-exempt wells may require permits and comply with district production rules. The correct answer therefore depends on the property’s location, well characteristics, and intended use.
This article provides general legal information and is not a substitute for advice from a Texas attorney or the applicable groundwater conservation district.
