Have you diverted water onto your neighbor’s property? Has water been directed or channeled onto your property?
Under section 11.086 of the Texas Water Code, a person may not divert or impound the natural flow of surface waters, or permit a diversion or impounding by him/her to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded.
By its own terms, this statute only prohibits certain changes to the natural flow of surface water. “The term surface water, as used in section 11.086, is not defined in the Water Code, but has been interpreted by Texas courts to mean water ‘which is diffused over the ground from falling rains or melting snows, and [it] continues to be such until it reaches some bed or channel in which water is accustomed to flow.’ ” Tex. Woman’s Univ. v. The Methodist Hospital, 221 S.W.3d 267, 277 (Tex.App.—Houston [1st Dist.] 2006, no pet.) (emphasis added). Diffuse surface water is distinct from flood waters and from waters entering or following a defined course or channel. Id. at 278.
Waters entering or following a defined course or channel are not considered diffuse surface water. This includes water in a ditch, a pond, a pipe, or a river. Id.
“Thus, a landowner might divert the entire Brazos River across his neighbor’s property without subjecting himself to liability under Section 11.086 of the Water Code.” Dietrich v. Goodman, 123 S.W.3d 413, 419 (Tex.App.—Houston [14th Dist.] 2003, no pet.).
Of course, this wouldn’t necessarily absolve this person from liability under other Texas law.
The Water Code is not the only legal authority governing flooding situations.
In our Law 101 posts, we define terms, phrases, or concepts with the goal of conveying core information in order to set the stage for more complex discussions.