Drilling a Water Well in Texas: Legal and Practical Considerations

By Trey Wilson, Real Estate and Water Lawyer – San Antonio, TX

Introduction

Drilling a water well in Texas can provide long-term water security for rural landowners, agricultural operations, homeowners and developers. But getting water to where a property owner needs it can be complicated. Legal, geological, and regulatory issues can significantly impact the ability of Texas landowners to access and use groundwater.

Here’s some things to know before you drill:

1. Determine Which Aquifer You’re Drilling Into

Knowing the basics of the underlying geology of your land informs both the technical feasibility and legal obligations of well drilling.  Different aquifers yield different quality and quantity of water. Water is available from different aquifers (or sometimes within a single aquifer) at varying depths, and water quality can also be inconsistent.

The Edwards Aquifer, for example, generally provides abundant, clean water due to its unique karst limestone characteristics—but it is heavily regulated.

The Trinity aquifer is less reliable, and the quality of Carrizo-Wilcox aquifers varies in depth, output and water quality depending on location. Some parts produce great water while others are semi-brackish or can contain constituents that require treatment.

2. Identify the Groundwater Conservation District (GCD)

Most parts of Texas are covered by a local Groundwater Conservation District, which regulates drilling, pumping, and spacing. GCDs are local governmental units that are part of a general regulatory scheme that emphasizes local control.  However, they are governed by State law — primarily Chapter 36 of the Texas Property Code.

GCDs are typically governed by elected boards, but run by professional staff. This type of local management has its pros and cons.

Having locally-elected officials establish water policy in a given area (often on a County level) provides for direct accountability to the communities that GCDs serve and also ensures that directors are familiar with local water needs.  Some downsides are:

• disparate management of aquifers (which — as natural geologic features) have no idea which line on a map they underlie. Many times a single aquifer (and even a single property such as a large acreage tract) is subject to the jurisdiction of more than one GCD and multiple and non-coordinated sets of rules and other policies;
• potential for discrimination against “exporters” who transport groundwater for use outside of the GCD’s boundaries; and
• temptation to adopt policies that promote “locals only” use of groundwater, when such policies are generally not permitted under Texas law.

Before drilling, contact your GCD to obtain a copy of their Rules and to determine:

• Whether a permit is required;
• Where and How deep you can drill;
• Property Boundary set-back requirements for water wells;
• Spacing requirements (the required proximity between wells);
• Pumping limits;
• Well registration or reporting requirements; and
• General water quality data.

You can find your GCD using the Texas Water Development Board’s interactive map.

3. Surface Ownership Doesn’t Guarantee Groundwater Access

Texas follows the “rule of capture,” but that doesn’t mean you have unlimited or automatic rights in groundwater. If a prior owner of your property has retained or previously leased groundwater rights beneath your land, you may be limited in your ability to drill or pump.

This can arise where the water estate is severed from the land, where a groundwater lease or conveyance has occurred, and as a result of  mineral leases that reserve water rights.

It is critical to understand whether you own or have a right to the groundwater under your property before you attempt to drill a well!

4. Contractual Issues and Disclosure in Sales

If you’re buying or selling property with a water well (or the potential for one), well disclosures and representations matter. Title commitments may note recorded easements or GCD orders that affect use. Failure to disclose a failed or noncompliant well can lead to legal disputes.

Another common dispute arises when a water well is used by the owners of multiple properties — usually neighbors. I have handled numerous disputes over shared wells, and most arise when there is no written water well sharing agreement.   I cannot over-emphasize the importance of understanding groundwater ownership, rights and obligations where shared water wells are concerned.

5. Legal Help Before You Drill

Before spending thousands on drilling, make sure your legal footing is secure. As a San Antonio real estate and water lawyer, I help landowners understand their groundwater rights, comply with regulations, and avoid disputes with neighbors or government agencies.

Need guidance before you drill? Contact me at www.sanantoniorealestatelawyer.com.