Focus Report: Volume 75, Number 13, April 1997 Page: 4
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Page 4 House Research Organization
Current Management
of State Waters
Surface water
Surface water is the water that flows in creeks,
lakes, streams, and rivers and into bays. With few
exceptions, surface water can only be used with per-
mission from the state, which grants usage rights
through permits issued by the Texas Natural Resource
Conservation Commission (TNRCC).
Water rights. Cities, individuals and water au-
thorities may apply for water rights permits. State
law requires that surface water be used for a "ben-
eficial purpose" in amounts that are reasonable or
necessary for that purpose. In order to obtain a per-
mit, an applicant must show that there is a source of
unappropriated water available. A water right can-
not be issued if it impairs existing water rights, and
applicants must demonstrate "reasonable diligence" to
avoid wasting water and achieve water conservation.
Since 1985, all applicants for new or additional wa-
ter rights must provide water conservation plans to
TNRCC and mitigate, if necessary, any effects to fish
and wildlife habitat and the bays and estuaries of
Texas.
A few classes of water users do not need to seek
permission from the state to use water. Property
owners who live adjacent to a river or stream can
divert a reasonable amount of water for household
Instream Flows and
Freshwater Inflows
Surface water in Texas eventually finds its way
to the Gulf of Mexico. Coastal marshes, wetlands,
bays and estuaries create breeding grounds for
many marine species, including shrimp, and the pro-
ductivity of these sensitive environmental areas
depends on the inflow of fresh water from rivers
and streams to dilute the salinity of the coastal
breeding grounds. Tourism, recreational activities
associated with the coast, and commercial fishing
are among the biggest contributors to the state
economy. Maintaining adequate instream flows in
rivers and streams and freshwater inflows to Texas'
bays and estuaries is one of the goals of the state
water plan.The Wagstaff Act
A statutory exception to the "first in time first
in right" rule for surface water use, known as the
Wagstaff Act, specifies that any appropriation of
state waters, other than from the Rio Grande, made
after May 17, 1931, for any uses other than domes-
tic and municipal use can be preempted without
payment by any city or town. The act has been used
only in small uncontested cases, and each time
TNRCC interpreted the statute as giving the munici-
palities new water rights with a 1931 priority date,
superseding other rights granted previously at later
dates. Some water experts believe the Wagstaff Act
could be challenged as a unconstitutional taking
without compensation, under the Fifth Amendment
to the U.S. Constitution and Art. 1, sec. 17 of the
Texas Constitution.
and livestock use. Landowners can also impound up
to 200 acre-feet of water for their domestic and live-
stock uses. County fire departments and other similar
entities can also use surface water without a permit
in an emergency.
Water permits do not guarantee that water will be
available, merely that the holder has a right to avail-
able water. All water rights documents have a
priority date. The legal doctrine of "prior appropria-
tion" gives priority to those whose rights have greater
seniority or, as stated in the Water Code sec. 11.027,
"first in time is the first in right." Conflicting claims
of surface water rights are usually adjudicated before
the TNRCC.
Most water right documents are "run-of-the-river"
rights meaning that users can divert water only when
stream flow levels are sufficient. Some water rights
allow water to be impounded in a lake or reservoir
for later use. If downstream users have water rights
with older priority dates they can require that stream
flows into the reservoir be passed through the dam to
satisfy their needs. Once the water is legally stored,
however, the downstream right holders cannot claim
it. At Falcon and Amistad reservoirs on the Rio
Grande, however, purpose of use determines priority
so that municipal and industrial water rights have
priority over irrigation rights if water shortages re-
quire that supplies be allocated.
Water rights documents specify a place and pur-
pose of use, a diversion point and rate, and thePage 4
House Research Organization
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Texas. Legislature. House of Representatives. Research Organization. Focus Report: Volume 75, Number 13, April 1997, periodical, April 15, 1997; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth653757/m1/4/?q=%22~1%22~1: accessed July 15, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.