Fearing that her beautiful landscaping will wither away from lack of water and feeling shafted by the ceaseless torrent of water usage limitations imposed by her city, Misty Spring is thinking about drilling a well in her own backyard. But does Misty own the water under her land  and can she drill a well for her personal water uses?

Maybe. Although Misty must check the rules and regulations of any number of possible authorities, with a little persistence she may be able to secure permitting for a licensed operator to drill a water well on her property; however, the well cannot be used for Domestic (household) use or for consumption by the public.

Texas Water Ownership and Usage. If Misty is already buying her water from someone else, she is subject to that seller’s regulations. For example, the City of Plano and most other Texas cities have ordinances that regulate, among other things, watering yards during drought conditions. In some cases, the determination of a city’s water restrictions is dictated by an even larger authority like the North Texas Municipal Water District, which currently is imposing its Stage 3 Water Conservation and Drought Contingency and Water Emergency Response Plan on all of its member cities, including Plano.

What about Misty’s water under her property? Generally speaking, each Texas landowner is regarded as having absolute title to the water beneath their land, much like ownership of minerals like oil and gas. The only “catch” of ownership is that it must be considered in connection with the law of capture and is subject to legislatively approved regulations. So, yes, it is likely that Misty can drill a well on her property – so long as it does not violate the rules of the authority selling her the water or the rules of the authority which the legislature has approved to regulate either the water under her property or her surface uses.

Tilting the Scales in Your Favor. Who are “the authorities” that Misty should contact? If Misty’s property is within an incorporated city, she should check there first. She should also check whether her property has any deed restrictions or if she is in a property owners association that would limit or prohibit drilling on her property. Depending upon where she lives, and particularly if she is in a more rural area, Misty should determine if she is subject to a groundwater conservation district that regulates water production from underground reservoirs. Typically such districts address water supply needs, management goals and the amount of water estimated to be used and recharged annually within the district. To address those issues, the groundwater supply district may regulate the spacing of water wells and limits on the production of water produced based upon the size of the tract.

For more information on the ownership, the evolution of Texas water rights, and the emerging authority of groundwater control districts in Texas, check out the this year’s Texas Supreme Court decision of The Edwards Aquifer Authority and the State of Texas v. Burrell Day and Joel McDaniel.