Texas Water Code: Definitions of Waters in Texas

Why are Waters Defined Differently by State?

The Environmental Protection Agency’s Clean Water Act (CWA) states protection for Waters of the U.S. (WOTUS). WOTUS intends to outline federal jurisdiction over waters, but the act provides no clear definition for WOTUS. This ambiguity has led to interpretation changes between presidential administrations, and further interpretation for regulation is left to the states when there is a loose description for waters.

In the case of some waters called temporary streams, their presence is seasonal or precipitation-dependent. Many of these streams are most common in arid or semi-arid regions and vary in prevalence depending on weather patterns. The difference in precipitation and seasonal patterns combined with the non-specific definitions of these waters provided at a federal level led states to define these waters further.

Texas: Waters in the State

Jurisdictional waters of Texas are given protection as “Waters in the State.” These waters exist within Texas territory and are considered property of Texas- subject to regulation and protection. Waters of the State of Texas include surface waters, groundwaters, the Gulf of Mexico, marshes, streams, wetlands, lakes, bays, ponds, rivers, creeks, inlets, canals, and waters transported through beds and banks of the state using the state’s property.

Texas has expanded definitions for these waters from definitions given within the Clean Water Act. Texas protects these water resources within the Texas Water Code. 

Texas’s primary water regulations revolve around Navigable Streams. These waters are defined as waters having a width of 30ft from the mouth up, regardless of dry seasons. Should the water fit this description, it is protected as public water and falls under the jurisdiction of the Texas Water Code. Navigable Waters can induce lakes, territorial seas, streams, and their adjacent wetlands.

For this piece, we will focus on Texas streams and wetlands, as these are most relevant to Land Developers.

Texas Water Development Board

To analyze and protect these waters, the Texas Water Development Board collects relevant water data for these waters. This data includes flooding events and water levels to ensure careful monitoring of Texas water systems. This data is collected regionally and complied in five-year intervals. This regional data informs the Texas state water plan, which outlines criteria to ensure Texans’ water supply is properly managed. This data can also inform any necessary water conservation efforts and changes in usage. Water usage and standards can vary regionally as even smaller areas of larger cities, such as Austin, Houston, or San Antonio, all have different water needs.

Texas Water Quality Program

The Texas Water Quality Program requires local, state, and federal agencies to work together in protecting state water quality. The Texas Parks and Wildlife Department (TPWD) will identify a concern, such as a toxic algal bloom or wastewater contamination in a larger waterbody, and a Texas waters specialist will investigate the concern. TPWD works with other state and federal agencies to change regulations and protection plans as they deem necessary based on changing concerns and new information.

For more information on TPWD and its responsibilities, visits tpwd.texas.gov.

Navigable Waters in Texas

Navigable waters, or a navigable stream, are defined as waters subject to the ebb and flow of the tide or having possible use for transport. These waterways may include streams mentioned above and the United States Army Corps of Engineers (USACE) protects them under the current interpretation of WOTUS.

In Texas, navigable waters are either “navigable in fact” or “navigable by statute.” To be “navigable in fact,” the water has to be seen as serving public utility or value for a portion of the year to the public in their natural state. For water to be “navigable by statute,” the water is classified as having a width of 30ft from the mouth up, regardless of dry seasons. Should the water fit this description, it is protected as public water. This definition of navigable waters extends to private property with the exception of a streambed, which Texas clarified in the 1929 “Small Bill” as an attempt to balance the needs of regulation with the requirements of private landowners. The Rio Grande River is an example of Texas navigable water per this definition.

This definition protects many Texas streams, including indirect regulation for some ephemeral streams that provide flow for valuable downstream waters. Though navigable waters have extensive protection, other waters are also subject to regulation. 

For example, even in the case of non-navigable waters, a permit is required when damming waters over 200 acre-ft of water in Texas. 

Texas Rivers and Streams

Texas climate covers both arid regions and regions of significant precipitation, allotting for temporary and non-permanent streams. According to data maps from the USGS, Texas streams and tributaries cover over 191,228 miles of Texas land. These streams feed both into larger bodies of water, such as the Gulf of Mexico, and impact important groundwater, such as aquifers used for drinking water. 

Texas Ephemeral Streams

The national definition for an ephemeral stream is a feature that only flows due to precipitation events. This definition assumes typical weather conditions for the climate of the region.

Texas follows this national definition of ephemeral streams, only adding further distinction as streams with flow less than 30% of the year. 

These streams are considered temporary and are the smallest in size and flow strength. These waters are “headwaters,” meaning they flow into the more significant streams seen below. There is debate about their regulation due to their lack of constant presence and impact on downstream waters.

Protection for Ephemeral Streams

Federal WOTUS, under its current definition, protects ephemeral streams. Additional measures by the state do not explicitly protect Texas ephemeral streams. Many of these streams provide flow to larger downstream waters and contribute to the watershed, receiving some indirect protection via connection to regulated navigable waters. 

Texas Intermittent Streams

Texas defines intermittent streams as a well-defined channel, flowing during the wet seasons or 30-90% of the year. Intermittent streams are protected under the CWA as navigable waters and the state of Texas further protects them. 

Texas Perennial Streams

Texas defines perennial streams as a stream with a well-defined channel and a flow for 90% or more of the year. These waters are the most significant streams, often called rivers, and are commonly called “permanent streams” due to their constant presence. 

Perennial streams are clearly defined within the CWA as part of the WOTUS and protected under this definition. 

Texas Wetlands

The CWA describes wetlands as a region saturated with groundwater or surface water long enough to support vegetation that prefers wet areas.

A Texas Water Code section defines a wetland as an area predominant in hydric soils and saturated by surface water or groundwater at an adequate amount for the growth and regeneration of hydrophytic vegetation. This definition includes swamps, marshes, bogs, prairie potholes, or similar areas.

This definition excludes less than an acre of artificial wetlands, irrigated farmland, and wetlands created for water or soil conservation.

Wetlands are transitional zones that can be difficult to recognize, particularly if surface water is absent. The presence of this feature remains constant between deep waters and uplands. These features may not be filled with water year-round and may fill with water after a flood or storm. These wetlands house extensive freshwater ecosystems that can require additional protection.

Protection for Texas Wetlands

Protection for this type of water body is within sections 401 and 404 of the CWA. Waters that do not fall into this classification may be subject to a state water law by the Texas Water Code. The Texas Commission on Environmental Quality (TCEQ) facilitates 401 water quality certifications for most activities. To review projects for 404 certificates, the TECQ follows a tier system.

• Tier I: For projects impacting less than 3 acres of “waters of in the state.” No additional 401 certification review is required, and best practices are followed

• Tier II: Projects more extensive than the description outlines in Tier I. These projects have more significant ecological impacts and are subject to further 401 reviews

Further division of supervision includes:

• Oil and Gas activities: 401 Certification provided by The Railroad Commission of Texas (RRC). The RRC and TECQ follow different 401 certification rules, permits, and regulations

• Private Landowners: Advised regarding wetlands by The Texas Forest Service

• Coastal Wetlands: Managed by the Texas General Land Office (TGLO) under regulations in the Texas Natural Resource Code

Over 41 Texas permits apply to wetlands, and many joint licenses with the federal government also exist. Further application of Texas anti-degradation policies is included in some regulation parameters.

Why are Water Definitions Important for Land Developers? 

Protected waters by a clean water rule or water law can lead to expensive permitting or recovery costs if these waters are not correctly identified or the developers do not take proper action. As stated, the definitions for protected waters can vary by state and administration. Due to this, developers need to stay educated on current regulations in their state to avoid costly delays. Temporary streams pose a considerable threat to the land development process. They may not initially appear on a project site, leaving room for environmental mishaps midway through a project. These temporary features can present differently in the different regions and threaten developers working in multiple areas.

Permits are required to follow the regulations mentioned above. These permits are provided at the federal, state, and county levels, adding additional requirements for developers. Necessary permits are obtained once proper identification establishes jurisdiction and follows the correct regulations.

How to Identify Texas Waters

Regulated waters can be challenging to identify and are typically discovered by an environmental consultant trained to find environmental red flags on a project site. Identification of ecological features is part of the initial environmental due diligence process. The USACE or consultants will discover these environmental concerns on developments during the due diligence process so developers can take proper action.

Consultants use the following characteristics for stream identification:

• Hydrologic processes (ex. Evaporation rate)

• Geomorphic/physical processes (ex. Channel and bank presence and definition)

• Biological processes (ex. Flora and fauna present)

The information found will then be classified according to the state definition of these streams.

Wetland delineation is the process used to determine the existence/ location and physical limitations/ size of a wetland. This process helps establish the feature as a Water of the State or WOTUS and determines jurisdiction.

During delineation, environmental consultants will use the following to determine if a region is a wetland:

• Hydrology

• Soils- if soil varies from surrounding uplands

• Vegetation- plants that have adapted to wet conditions and the absence of flora that prefers dry climates

Tools and identification methods vary amongst the Texas Corps of Engineers District across Texas regions. 

Upcoming identification methods include software that uses past data and vegetation trends to identify streams and software that uses machine learning to map waters on a site with a corresponding confidence score.

Transect Software helps land developers discover these waters on any given parcel of land.

To learn about more Environmental Regulations in Texas, check out the Texas section of our Environmental Regulations by State reference page.