TROUBLED WATERS: Who owns groundwater, surface water, and the rain
This story is one of a series on water issues in the Highland Lakes. The series kicked off in the August 2022 issue of The Picayune Magazine. For an up-to-date list, visit the Troubled Waters webpage.
The water we use in the Highland Lakes can be divided into three categories: surface water, groundwater, and rainwater. Depending on where you live, your water is regulated by different government and pseudo-government agencies.
Most of the drinking water for Highland Lakes communities comes from lakes Buchanan, Inks, LBJ, and Marble Falls, which all fall into the category of surface water. As the name suggests, surface water is defined as any water that lies above ground. Rivers, lakes, ponds, estuaries, creeks, marshes, swamps, canals, and even the Gulf of Mexico within 10.36 miles of the shore are considered surface water.
In Texas, surface water is owned and regulated by the state. The major players in the Highland Lakes area when it comes to surface water are the Texas Commission on Environmental Quality and the Lower Colorado River Authority. If your water comes from anything above ground, these two agencies have a say in how you get it and how much of it you can get.
The TCEQ is tasked with monitoring and regulating water quality. Municipalities must meet water quality standards set by the commission and get proper permitting regarding their methods if they intend to use publicly owned water for their residents. Private residents and commercial businesses wishing to draw water from public sources or manipulate public water with dams or irrigation also must obtain the proper permits from the TCEQ.
The LCRA is a government agency tasked with managing the waters of the lower Colorado River. This agency built the dams that created the Highland Lakes, and it not only has the power to sell, regulate, and manage the water that fills them but also the rivers and tributaries that feed into them. Anyone wishing to draw water from the lower Colorado River Basin must obtain the proper permitting and follow regulations from the LCRA.
The communities of Marble Falls, Burnet, Horseshoe Bay, Kingsland, Granite Shoals, Cottonwood Shores, Highland Haven, Meadowlakes, Sunrise Beach Village, and Buchanan Dam all pull water from the Highland Lakes, making them firm water customers of the LCRA. These communities are purchasing the right to pump water from LCRA-managed water bodies. The TCEQ grants permits for the methods used to treat the water and sets standards for overall water quality that must be met.
The city of Llano gets its water from city lakes created on the Llano River, which is not part of the Highland Lakes but is still regulated by the LCRA because the Llano River is part of the Colorado River drainage area, or basin.
The TCEQ also sets the amount of water an entity can legally impound. For example, the city of Llano is permitted to hold 700 acre-feet of water.
Individuals or businesses wishing to use surface water also must obtain contracts from the LCRA and permits from the TCEQ.
A water contract for domestic use can be obtained from the LCRA for $155 per acre-foot of water used a year. An acre-foot equals 325,851 gallons.
Almost half of Burnet County lies outside of LCRA territory and is within the realm of the Brazos River Authority. These river authorities govern and manage the water that falls within their respective watersheds. Because the tributaries that run in northeast Burnet County eventually flow into the Brazos River, they are within BRA jurisdiction.
While surface water technically belongs to the people of Texas, it is managed and regulated by agencies such as the LCRA and TCEQ.
The water beneath our feet is beholden to a different set of laws and regulations than the water that flows on the surface. Groundwater is defined simply as “water percolating beneath the surface of the earth.” In the state of Texas, landowners own the groundwater under their property.
The city of Burnet gets half of its water from groundwater sources, while Bertram is entirely reliant on groundwater.
Roughly 50 percent of the water in the city of Burnet comes from the Ellenburger-San Saba Aquifer, a small aquifer that lies within the Llano Uplift. This same aquifer provides 100 percent of the water to the city of Bertram.
An aquifer is a body of saturated rock beneath the earth’s surface through which water can easily move. Wells are dug into these aquifers and pumps bring the water to the surface.
Because groundwater is privately owned in Texas, far fewer laws regulate its use compared to surface water. Typically, landowners can pump, sell, and manage their own groundwater how they want. The Rule of Capture states that a landowner may draw upon their well without limit, even if it drains their neighbor’s well.
Groundwater is not totally unregulated. A county can vote to establish groundwater conservation districts, which manage and regulate how much water can be pumped from underground. The districts have the authority to levy ad valorem taxes.
The Central Texas Groundwater Conservation District oversees Burnet County’s groundwater in terms of well location and the rate that water is pumped, but the groundwater still belongs to the landowners.
Most domestic wells are exempt from permitting within the district. As long as a well pumps less than 17.36 gallons per minute, it does not require a permit from the district.
Wells that exceed 17.36 gallons per minute are subject to permitting that requires adequate spacing between any other well and would only allow for a specified amount of water pumped per year.
Neighboring Llano County does not have a groundwater conservation district, which means its wells are almost completely unregulated and landowners can drill and pump as much as they want.
Mitchell Sodek, director of the Central Texas Groundwater Conservation District, explained that the district’s purpose is to ensure private property rights within district boundaries are protected.
“The value, I think, for everybody is the protection of your private property rights,” Sodek said. “We protect that in not allowing any one well or individual from unreasonably affecting your well, which does not occur in areas that don’t have a GCD.”
Sodek cited neighboring Williamson County as an example. If your neighbor were to drill a well near yours and drill much deeper, your well’s pump rate could be reduced or it could dry out. You would have no protection from this happening in a county that lacks a groundwater conservation district.
According to Sodek, groundwater is affected in a drought by increased pumping rather than climate. During droughts, people use more water and anybody on a well is pulling from the local aquifer. This pressure can reduce total water available to anyone in a given area.
A NOTE ON RAINWATER
In the state of Texas, if you capture rainwater before it hits the ground, it is yours. Once water hits the ground and enters a channelized feature such as a creek, pond, lake, or river, it is then owned by the state. This isn’t true in every state. Colorado, for example, owns the rainwater and doesn’t allow individual rainwater capture systems.
Another note: In Texas, individuals are allowed to hold up to 200 acre-feet of water for domestic use, so if you dig a pond on your property and it fills with rainwater, you are able to use that water, even though it technically — as surface water — belongs to the state.