With the Irrigation Act of 1889, all streams "within the arid areas of the state" not already claimed by a landowner were declared the property of the state and therefore subject to state regulation. In essence, Texas formally adopted the principle of "prior appropriation." The foundation of the prior appropriation doctrine is the recognition and protection of senior claims to water use, or "first in time, first in right." The second principle is that water shall be put to a "beneficial" use.(14) Under this system, those wishing to divert water from a stream bed could be granted a right to a similar amount in the future provided the water was used in a fashion the state deemed reasonable and beneficial.(15)
In 1913, and again in 1917, the Legislature extended the state's jurisdiction to regulate surface water use in amendments to the 1889 Act. By 1917, the state had jurisdiction over all surface water. (The 1917 Act also authorized a new Texas Board of Water Engineers, a predecessor to today's Texas Natural Resource Conservation Commission, to oversee state appropriation of water rights.) However, the courts upheld water rights claimed by individuals for property they owned prior to the 1889 and 1913 laws, leaving the state with two sometimes overlapping systems for allocating surface water rights.(16)
The flaw inherent in such a dual system, the appropriation and riparian doctrines, became apparent in the 1950s when a severe drought in the Lower Rio Grande Valley drastically reduced the volume of water in the Rio Grande River. As a result of the drought, the amount of water appropriated under surface water rights exceeded the river's supply.
| THE HYDROLOGICAL CYCLE |
|---|
| All water, whether captured from a stream, collected as rain or mined from below the surface, is recirculated to the atmosphere. This never-ending exchange of water from earth to atmosphere, accomplished through precipitation and evaporation, is known as the hydrological cycle.
As water moves through the phases of the hydrological cycle, its quality may be affected. For example, as water percolates into the ground it may gather contaminants that affect the quality of groundwater. Rainwater likewise may collect impurities from the air, and runoff from rainfall may gather impurities from the land surface, both of which affect the quality of surface water. The quantity of water moving through the cycle may also change. Water used in industrial processes, for example, may become so contaminated that it cannot be treated and returned to the cycle as wastewater. Such water would therefore be permanently removed from the hydrological cycle. Thus, in the hydrological cycle, ground water, surface water and human activities all are interrelated. |
In 1967, the Texas Legislature passed a law known as the "Water Rights Adjudication Act." This Act consolidated all surface water rights into a unified system by transforming previously held Spanish and Mexican grants, riparian water rights, and claims into "certificates of adjudication." The Act required all riparian and unrecorded users of water to file claims with the Texas Water Commission (now the Texas Natural Resource Conservation Commission). Those water right claims had to be based upon actual use during the years 1963-1967. The Commission then evaluated all water right claims, including any claim filed prior to the Act. Approval of any water right by the Commission also required court approval. All rights approved by the courts are called "Certificates of Adjudication." After 1969, anyone wishing to obtain a new water right must seek a permit from the state. Today, only water claims in the upper Rio Grande near El Paso remain unadjudicated.
Thus, today, water rights are issued with the following terms and conditions:
To change any of the terms or conditions of the right requires authorization from the Texas Natural Resource Conservation Commission. In its administration of water rights, the Texas Natural Resource Conservation Commission, by law, must balance requests for new rights or for amendments against statutory responsibilities to also protect water quality, instream uses and freshwater inflows to bays and estuaries.
Currently there are about 6,600 water rights. However, a small number of these - 275 - have access to most of the water. Irrigation rights make up the greatest percentage of the number of rights but account for only 13 percent of the surface water appropriated. Most of the irrigation rights are for 100 acre-feet or less.(17)
Water rights can be sold, amended, leased or transferred. In Texas, more than 90 percent of surface water has already been adjudicated and some rivers, like the Rio Grande, are actually overappropriated.(18) This means that if all holders used all their water rights - particularly during dry periods - there wouldn't be any flow in the river. To encourage conservation, the Texas Natural Resource Conservation Commission in April 1993 modified its rules to allow water rights holders to retain for future use the rights to water conserved through water use efficiency. Prior to this rule change, permit holders were in a "use it or lose it" position, which discouraged conservation.(19)
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