Texas Two-Step: Claytie Channels Boone; Groundwater Issues in Austin

Now, on to Claytie Williams. This item appeared on 21 April 2010 in the Texas Tribune. Williams hasGMA rights to pump 47,000 acre-feet annually from beneath his Pecos County land under a permit from the Middle Pecos Groundwater Conservation District (MPGCD) which lies mostly within GMA 7 with its northern part in GMA 3.

So what's the problem? Well, Williams' water is to be used for irrigation, and he wants to sell it to cities such as Midland more than 100 miles away from his land holdings. So he needs a waiver from the MPGCD. His request may come before the board as early as May 2010.

Not everyone is enthused about Williams' desire to sell the groundwater. From reporter Julian Aguilar's story:

The citizens of Fort Stockton, says Mayor Ruben Falcon, “feel that the future water supply is threatened by having a large amount of water transferred out of the aquifer.” Others believe allowing Williams’ transfer would set a dangerous precedent for all communities in the Rio Grande-Rio Bravo Watershed, which supplies Laredo and the entire Rio Grande Valley.

“There is going to be a whole set of dominoes where people are going to be extracting or attempting to extract water from the watershed … at the risk of the Rio Grande Community,” said Jay J. Johnson Castro, the executive director of the Rio Grande International Study Center in Laredo. The center and the City of Fort Stockton entered into a joint resolution seeking a moratorium to prevent the transfer of the water.

The 11-member conservation district could decide the issue as soon as May, though contested hearings may push the decision into the fall. The clash underscores the increasing scarcity of water in Texas — and the resulting standoffs between profit seekers looking to mine and sell the water and the municipalities trying cling to their rights to local supplies. In the balance hangs the health of the Rio Grande, which is already included on the World Wildlife’s list of most endangered rivers in North America, Castro said. Williams’ attempted removal of the water could harm the rivers that eventually drain into the Rio Grande, which in prior years has failed to make it the Gulf of Mexico due to low water levels.

Williams wants to draw more than 47,000 acre-feet of water annually from the watershed. An acre–foot is about 325,820 gallons, potentially bringing Fort Stockton Holding’s haul to exceed more than 15,449,780 gallons annually and total more than 463 trillion gallons over the life of the 30-year permit.

Here is more:

Williams already has a permit in place that allows him to drill the same amount he is requesting — but solely for irrigation purposes. He asserts in his current libel lawsuit that the “rule of capture” makes the water under his property his to pump, use or sell. The rule asserts that the landowner holds the right to capture the water beneath his property without considering the effects to neighboring properties.

In court documents, Williams cites previous case law — including a 1954 case involving his father, Clayton Williams Sr. That case, Pecos County Water Control and Improvement District No. 1 v. Williams, reaffirms the rule of capture in his favor, Williams Jr. claims in court documents. In that case, an appellate court decided the elder Williams owned the water beneath his land, which fed into Comanche Springs. Williams Jr. also cites Chapter 36 of the Texas Water Code, which reads, “ownership and rights of the owners of the land and their lessees and assigns in groundwater are herby recognized.”

So yes, the 'rule of capture' still rules in Texas.

Williams’ opponents, meanwhile, are counting on the fact that he wants to change the use of the water from what's in his existing permit. They argue that current law supersedes Texas’ rule of capture. Johnson and Falcon are banking on the Texas Supreme Court decision rendered in Guitar Holding Co. LP v. Hudspeth County Underground Water Conservation District to bolster that argument.

Johnson litigated the 2007 case on behalf of the Guitar family, who owned a large swath of land over the Bone Springs-Victorio Peak Aquifer in Hudspeth County. In that case, the court overturned a lower court’s decision that, under the district rules, “production from a grandfathered well, historically used to irrigate crops, can in the future be sold for transport out of the district as a preserved historic or existing use.” Instead, the higher court determined that the “amount of groundwater used and its beneficial purpose are components of ‘historic or existing use.’” So the district exceeded its rule-making authority by ignoring changes in the amount and purpose of water use in decisions to grandfathering existing wells, the higher court ruled.

“The Guitar case stands for the proposition that, just because Mr. Williams has the right to produce 46,000 acre-feet for irrigation purposes, that does not mean he has the right to convert that amount to some new use,” Johnson said.

But some people are persistent, even invoking international issues:

It is ultimately up to the Middle Pecos Groundwater Conservation District to approve or reject the permit. But Castro argues that because the surface waters of the Rio Grande are governed by the Treaty of Feb. 3, 1944, which is overseen by the International Boundary and Water Commission in El Paso, the federal government should consider intervening in the dispute.

“We think there are higher laws that should be in consideration here. The Environmental Protection Agency should look into this because this is the future,” he said. “Our thought is, the growth should be where the water is. The water shouldn’t be moved where you want the growth. That’s where Texas is going to get into trouble.”

Castro has written the international water commission and four border congressmen: U.S. Reps. Henry Cuellar, D-Laredo, Solomon Ortiz, D-Corpus Christi, Silvestre Reyes, D-El Paso, and Ciro Rodriguez, D-San Antonio. The IBWC acknowledged receipt of the letter, but commission spokeswoman Sally Spener declined to comment in detail, saying the agency has yet to respond its claims.

I will be very interested in seeing how this case and the Pickens case are resolved. The one similarity is that like Pickens, Williams does not have a buyer for his water. Midland apparently does not want it, and there is talk of using it for a 'clean coal' power plant that is supposed to be built in the Midland-Odessa area. And Williams' water would need to be blended or purified to be used for drinking water.

So why is Williams is trying to do this if there are no buyers? A friend of mine suggested that 'personalities' are involved here. I'll say.

Ah, Texas groundwater! I was under the impression that after passing the GMA legislation, Texas had its act together with groundwater. Let me make a real stretch here and say that Boone and Claytie may soon be laughing all the way to bank (which they will probably do anyway, win or lose).

And you can thank Wayne Bossert of the NW Kansas Groundwater Management District 4, for 'encouraging' me (unbeknownst to him) for posting this.

“Nobody has stepped up to the plate. Nobody has foreseen this. Nobody is dealing with this directly. There are millions of people downriver from him. Once they know, (they) are going to have more power than he ever imagined.” -- J.J.J. Castro, quoted in the article.

Read from source Here.