Who owns surface water in Texas?

The state. All surface water in a watercourse — rivers, streams, natural lakes — is owned by the state of Texas and held in trust for the public. A landowner whose property borders or contains flowing surface water does not own that water. To use it beyond limited domestic and livestock needs, the landowner must obtain a water right (permit) from the Texas Commission on Environmental Quality. This is the opposite of groundwater, which the landowner owns.

What is the prior appropriation doctrine?

It is the system Texas uses to allocate surface water: "first in time, first in right." Water rights are ranked by seniority based on priority date, and senior rights are satisfied in full before junior rights receive any water. In a drought, TCEQ can require junior holders to reduce or stop diverting while senior holders keep their full allocation. Seniority, not proportional sharing, governs shortages — so how senior a water right is matters as much as whether it exists.

Do I need a permit to use water from a creek on my land?

For most uses, yes — a water right from TCEQ, because the state owns the surface water. But under Water Code §11.142 there is a narrow exception: a landowner may use surface water from a stream on their own property for domestic and livestock purposes without a permit. That covers things like a stock tank for cattle or household use. Any use beyond that limited domestic-and-livestock purpose requires a state water right.

How is surface water different from groundwater in Texas?

They are governed by opposite systems. Surface water is owned by the state and allocated by TCEQ permit under prior appropriation. Groundwater is owned by the landowner above it and governed by the rule of capture, which generally lets a landowner pump water beneath their land without a state permit, subject to local groundwater conservation district regulation. Identifying which type of water is at issue is the first step in any Texas water-rights question.

What happened to riparian rights in Texas?

Texas historically recognized riparian rights — use rights based on owning land next to a watercourse — alongside prior appropriation. The Water Rights Adjudication Act of 1967 merged recognized riparian claims into the state permit system, requiring riparian users to file to have their claims quantified and creating one unified prior appropriation regime for surface water. The main surviving non-permit use is the domestic-and-livestock exception under §11.142.

Why does this matter when buying rural property?

Because a buyer counting on surface water for irrigation or other use needs to confirm that a valid water right exists and transfers with the property — land ownership alone does not convey the right to use the state's surface water. The seniority of the right also matters: a junior right can be curtailed in drought while senior rights are met. Discovering after closing that no valid water right exists can leave a buyer with a property that cannot legally access the water it depends on.

Texas Surface Water Rights: Prior Appropriation & TCEQ

TL;DR

Texas treats surface water and groundwater under two completely different legal systems, and Texas real estate exams love the contrast. Surface water — water in rivers, streams, lakes, and other watercourses — is owned by the state and held in trust for the public. A landowner does not own the surface water flowing past or across the property. To use it for anything beyond limited domestic and livestock needs, a person must obtain a water right (a permit) from the Texas Commission on Environmental Quality (TCEQ). Texas surface water follows the prior appropriation doctrine: "first in time, first in right," meaning older (senior) water rights have priority over newer (junior) ones, and in a drought junior holders may be cut back or cut off while senior holders still receive their full allocation. Historically Texas also recognized riparian rights — rights based simply on owning land next to the water — but the Water Rights Adjudication Act of 1967 merged existing riparian claims into the state permit system to create one unified regime. A narrow exception under Water Code §11.142 lets a landowner use surface water from a stream on their own land for domestic and livestock purposes without a permit. This is the opposite of groundwater, which a landowner does own under the rule of capture — so knowing which system applies to which water is the key exam skill.

Two systems for two kinds of water

The single most important thing to understand about Texas water law is that it splits sharply by source. Water above the ground and water below the ground are governed by entirely different doctrines, with different owners and different rules. Getting a question right almost always starts with identifying whether the water at issue is surface water or groundwater.

Surface water is owned by the state and allocated by permit. Groundwater belongs to the landowner above it and is governed by the rule of capture. This article focuses on surface water; the groundwater side, with its rule of capture and groundwater conservation districts, is covered separately. For that companion system, see our guide to the groundwater rule of capture and GCD framework.

Surface water is owned by the state

In Texas, all surface water in a watercourse — rivers, streams, natural lakes, and the like — belongs to the state under Water Code Chapter 11 and is held in trust for the public. This is the foundational rule that surprises many buyers: owning land along a river does not mean owning the river's water. A rancher whose property fronts a flowing stream cannot simply divert and use that water for irrigation on the strength of ownership alone.

Because the state owns the water, using it beyond narrow exceptions requires the state's permission in the form of a water right. This is a marked contrast with the intuition many landowners bring from other property rights, and it is why a buyer purchasing farm or ranch land that depends on surface water must confirm that valid water rights exist and transfer with the property. For the mineral-estate context, another situation where a right can be severed from the surface a buyer thinks they are getting, see our guide to mineral rights severance and the surface estate.

Prior appropriation: first in time, first in right

Texas allocates surface water under the prior appropriation doctrine. Water rights are ranked by seniority: the older the right (its priority date), the higher its claim to water. This is captured in the phrase "first in time, first in right." A senior appropriator is entitled to its full permitted amount before a junior appropriator receives any.

The seniority system matters most in drought. When there is not enough water in a source to satisfy every right, TCEQ can administer a priority call: junior water-right holders may have their diversions reduced or suspended entirely, while senior holders continue to receive their full allocation. This is very different from sharing shortages proportionally — prior appropriation protects the oldest rights first. A buyer acquiring water-dependent property should therefore care not just whether a water right exists, but how senior it is, because a junior right can be worth little in a dry year.

Feature	Surface water	Groundwater
Ownership	Owned by the state, held in trust for the public	Owned by the landowner above it
Governing doctrine	Prior appropriation (first in time, first in right)	Rule of capture
Authorization to use	Water-right permit from TCEQ	Generally no state permit; local GCD may regulate
Drought priority	Senior rights served before junior rights	No priority system; based on pumping

The TCEQ permit system

Because surface water belongs to the state, a person who wants to appropriate it must apply to TCEQ for a water right. TCEQ reviews the application for administrative completeness and then conducts a technical evaluation, considering whether unappropriated water is actually available in the source, the effect on existing water rights, conservation, and environmental flows. The public and existing rights holders in the same basin receive notice and may participate.

A granted surface-water right specifies the amount of water, the source, the purpose of use, the diversion point, and a priority date that fixes the right's seniority. Once granted, a surface-water right is generally perpetual, subject to some temporary and term authorizations and to cancellation for extended non-use. The permit-based system is what allows the state to manage a public resource among competing users while protecting senior rights and instream environmental needs. For another Texas regime built on statutory notice to buyers about a district's authority over land, see our guide to the MUD district notice under Water Code §49.452.

Riparian history and the domestic-and-livestock exception

Texas did not always run entirely on prior appropriation. Early Texas law also recognized riparian rights — the right of a landowner whose property borders a watercourse to make reasonable use of the water simply by virtue of that location. For decades the two doctrines coexisted uneasily, creating uncertainty about who could use how much.

The Water Rights Adjudication Act of 1967 resolved this by merging recognized riparian claims into the prior appropriation permit system. Riparian users were required to file to have their claims recognized and quantified, and going forward the unified permit system governs new appropriations. One practical remnant survives: under Water Code §11.142, a landowner may use surface water from a stream on the landowner's own property for domestic and livestock purposes without obtaining a TCEQ permit. That narrow exempt use — a stock tank for cattle, household use — is the main way a landowner lawfully uses surface water without a permit. Everything beyond it requires a water right. For the related landlord-tenant and land-use rules a rural buyer also navigates, see our guide to Texas landlord-tenant law.

Frequently Asked Questions

Who owns surface water in Texas?: The state. All surface water in a watercourse — rivers, streams, natural lakes — is owned by the state of Texas and held in trust for the public. A landowner whose property borders or contains flowing surface water does not own that water. To use it beyond limited domestic and livestock needs, the landowner must obtain a water right (permit) from the Texas Commission on Environmental Quality. This is the opposite of groundwater, which the landowner owns.
What is the prior appropriation doctrine?: It is the system Texas uses to allocate surface water: "first in time, first in right." Water rights are ranked by seniority based on priority date, and senior rights are satisfied in full before junior rights receive any water. In a drought, TCEQ can require junior holders to reduce or stop diverting while senior holders keep their full allocation. Seniority, not proportional sharing, governs shortages — so how senior a water right is matters as much as whether it exists.
Do I need a permit to use water from a creek on my land?: For most uses, yes — a water right from TCEQ, because the state owns the surface water. But under Water Code §11.142 there is a narrow exception: a landowner may use surface water from a stream on their own property for domestic and livestock purposes without a permit. That covers things like a stock tank for cattle or household use. Any use beyond that limited domestic-and-livestock purpose requires a state water right.
How is surface water different from groundwater in Texas?: They are governed by opposite systems. Surface water is owned by the state and allocated by TCEQ permit under prior appropriation. Groundwater is owned by the landowner above it and governed by the rule of capture, which generally lets a landowner pump water beneath their land without a state permit, subject to local groundwater conservation district regulation. Identifying which type of water is at issue is the first step in any Texas water-rights question.
What happened to riparian rights in Texas?: Texas historically recognized riparian rights — use rights based on owning land next to a watercourse — alongside prior appropriation. The Water Rights Adjudication Act of 1967 merged recognized riparian claims into the state permit system, requiring riparian users to file to have their claims quantified and creating one unified prior appropriation regime for surface water. The main surviving non-permit use is the domestic-and-livestock exception under §11.142.
Why does this matter when buying rural property?: Because a buyer counting on surface water for irrigation or other use needs to confirm that a valid water right exists and transfers with the property — land ownership alone does not convey the right to use the state's surface water. The seniority of the right also matters: a junior right can be curtailed in drought while senior rights are met. Discovering after closing that no valid water right exists can leave a buyer with a property that cannot legally access the water it depends on.

Bottom Line

Texas surface water — water in rivers, streams, and lakes — is owned by the state and held in trust for the public, not by the adjoining landowner, and using it beyond limited needs requires a water-right permit from TCEQ. Surface water follows the prior appropriation doctrine, "first in time, first in right," so senior rights are served in full before junior rights, and in drought TCEQ can curtail junior holders while senior holders keep their allocation. Texas once recognized riparian rights based on land ownership adjacent to water, but the Water Rights Adjudication Act of 1967 merged those claims into the unified permit system; the main surviving non-permit use is the domestic-and-livestock exception in Water Code §11.142. This is the opposite of groundwater, which the landowner owns under the rule of capture — so the first move in any question is identifying whether the water is surface or subsurface. For related Texas topics, see our guides to the groundwater rule of capture, mineral rights severance, and the MUD district notice.

Source: Texas Water Code Chapter 11 — Water Rights (official) · TCEQ — Water Rights Permitting · Texas State Law Library — Water Law