by Calvin Trey Scott
In Texas, surface water rights are governed by the doctrines of riparian rights and prior appropriation. Groundwater is mainly governed by right of capture. Due to recent droughts and the potential for future water scarcity, individuals, businesses and schools have started capturing or “harvesting” rainwater. When rainwater is harvested, who is the rightful owner?
Capturing rainwater has a long history. In Texas, there is evidence of Native Americans using rainwater harvesting 10,000 years ago. In the 1800s and early 1900s, it was not surprising for homes to have a water well and a cistern. The water well was used for livestock and washing clothes. Water from the cistern was used for cooking and drinking.
Rainwater harvesting, whether in ancient or modern times, requires two elements: a catchment and a place to store the rainwater. A catchment is a broad surface used to catch rain. It can be as simple as a rooftop of an existing building or furrows in the ground. The storage area can be cisterns, tanks, ponds or in the soil.
While rainwater harvesting may have a long history, laws governing rainwater harvesting are nearly non-existent. Currently, there is no federal law that prohibits or regulates the construction and harvesting of rainwater. Thirteen states currently have some laws relating to rainwater harvesting. These laws range from simple tax credits to requiring the inclusion of rainwater harvesting systems in new and repaired buildings.
Under Texas Water Code Section 11.021, the rainwater from every river, watershed, stream, canyon, ravine and depression is deemed to be the property of the State of Texas. However, this does not mean rainwater cannot be harvested. In Turner v. Big Lake Oil Co. 96. S.W.2d 221, 228 (Tex. 1936), the Supreme Court of Texas held that a land owner has a vested property right to any rain that falls on his land.
Turner dealt with an earlier iteration of state owned water, but the language is the same. The Court held, “No citation of authority is necessary to demonstrate that the right of a land owner to the rain water which falls on his land is a property right which vested in him when the grant was made. Being a property right, the Legislature is without power to take it from him or to declare it public property and subject by appropriation or otherwise to the use of another.”
In the Texas Codes, rainwater harvesting is even encouraged. Most telling is Texas Water Code Section 1.003. Section 1.003 lists the public policy of the state of Texas in all matters concerning water. Section 1.003(8) declares the public policy of the state includes promoting the use of rainwater harvesting for potable and non-potable purposes in both private and public locations. Texas Local Government Code section 580.004 states that each municipality and county is encouraged to promote rainwater harvesting and give incentives to residential, commercial and industrial facilities that use rainwater harvesting.
Under Texas Health and Safety Code Section 341.042, harvested rainwater should meet all necessary sanitary standards set forth from the Texas Health and Human Services Commission. Harvested rainwater also should not come into contact with a public water supply. These provisions do not apply if the harvested rainwater is used for domestic use and the property on which rainwater harvesting is used is not connected to a public water system.
And finally, Section 202.007 of the Texas Property Code states that a property owner’s association cannot restrict a property owner from using rainwater harvesting systems. When selling property, a seller is required to disclose the existence of a rainwater harvesting system on the property. An individual that harvests the rain on his or her property is the owner. Codes throughout Texas law also encourage the harvesting of rainwater. As of now, there are no laws preventing the harvesting of rainwater.
Calvin Trey Scott currently works for US Trust, Bank of America Private Wealth Management. He can be reached at firstname.lastname@example.org.
It would be a crying shame if the government claimed harvested rainwater! Imagine what would happen to Africa! That would be sad indeed. It is wonderful to be able to harvest your own water, you become more aware of the importance of water whether you want to or not. It gives me great peace of mind not having to rely on others for my water supply, especially here in South Africa where we often have water outages or restrictions.