The Rio Grande is 1,896-mile long, the fifth longest river in the United States

The Rio Grande's watershed encompasses 335,000 square miles. It drains more than 40,000 square miles in Texas alone.

A 1,250 mile segment of the river forms the international boundary between Mexico and the United States.

The Rio Grande begins in the Colorado mountains, courses through New Mexico, forms the border between Texas and Mexico, and flows into the Gulf of Mexico.

Historically, the river flowed continuously from Colorado to the Gulf of Mexico until the early 1900s when construction of dams, channelization, human consumption, and landuse practices altered the flow of the river.

At present, the Upper Rio Grande virtually stops in El Paso/Ciudad Juarez and resumes significant flows at the confluence with the Rio Conchos 250 miles downstream.

Its principal tributaries are the Pecos, Devils, Chama, and Puerco rivers in the United States, and the Conchos, Salado, and San Juan in Mexico.

The principal cities along the river are Santa Fe, Albuquerque, Socorro, Truth or Consequences, Mesilla, and Las Cruces in New Mexico; and El Paso, Presidio, Del Rio, Eagle Pass, Laredo, Rio Grande City, McAllen, and Brownsville in Texas.

In Mexico the principal cities are Ciudad Juárez, Ojinaga, Ciudad Acuña, Piedras Negras, Nuevo Laredo, Camargo, Reynosa, and Matamoros.

The Rio Grande was listed among the nation's Most Endangered Rivers in 1993, 1994, 1995, 1996, 2000, and 2003.

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It could be January before Oilman Clayton Williams will have a hearing on his plan to pump water out of Pecos County.

The City of Fort Stockton filed a motion requesting that the Middle Pecos Groundwater Conservation District postpone the dates.

That's because a hydrology study won't be complete in time.

Fort Stockton Holdings' and Williams agreed with the request to put off the hearing until January.

A company executive says he respects that the city wants to completely analyze the study.

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By Steve Taylor
[Elizabeth
Elizabeth Verdecchia runs the Texas Clean Rivers Program for the Rio Grande.

MERCEDES, May 31 - High levels of bacteria in the section of the Rio Grande that runs through Brownsville and Matamoros remains a concern for the International Boundary and Water Commission.

The issue will be discussed at the next meeting of the IBWC’s Lower Rio Grande Citizens Forum, which takes place Tuesday, June 8, at the Commission’s office in Mercedes.

At the meeting, the IBWC’s Environmental Protection Specialist, Elizabeth Verdecchia, will provide an overview of water quality in the Lower Rio Grande as well as discuss current and future water quality monitoring and outreach activities through the Texas Clean Rivers Program for the Rio Grande Basin. Verdecchia runs the Texas Clean Rivers Program for the Rio Grande.

In a media advisory about the citizen’s forum, the IBWC acknowledged that “bacteria levels remain a concern in the Brownsville area.” The advisory points out that the IBWC and the University of Texas at Brownsville have completed the first phase of an intensive bacteria study of the Rio Grande in the Brownsville area. UTB’s Dr. Elizabeth Heise will provide preliminary results of the study at Tuesday’s meeting.

“We hope the study will help us get a better understanding of what's causing the high bacteria levels,” Verdecchia said. “We hope people will come to the June 8 meeting to learn more about water quality and to let us know of any concerns they have.”

The section of the Rio Grande that runs through Brownsville/Matamoros has been listed by the state of Texas as impaired for contact recreation since monitoring began in 1996.

E.coli bacteria is used to indicate whether a river is meeting its designated use for contact recreation, and the Texas Surface Water Quality Standard for contact recreation is 126 colonies per 100 milliliters. At one of the stations in this study, (Rio Grande at Brownsville, TCEQ ID# 13177), e.coli values collected from 2001 to 2009 have an average of 750 colonies per 100 milliliters.

In an e-mail to the Guardian, IBWC spokeswoman Sally Spener said that while high bacteria levels may be a concern for recreational users of the river, water taken from the river for drinking purposes is treated for bacteria. Therefore, Spener said, tap water is not affected. The cause of the high bacteria is unknown, and IBWC’s intensive monitoring study is designed to understand the bacteria contamination and its potential sources, she said.

Brian R Smith, regional medical director for the Texas Department of State Health Services, told the Guardian that he has not heard anything about the Brownsville section of the Rio Grande having higher bacteria counts than sections further north.

“I doubt that they do, but bacterial counts in the warm water with overflow from Mexican sources is always the concern,” Smith said, pointing out that TCEQ tracks river coliforms, not the Department of State Health Services.

The IBWC’s Rio Grande Valley headquarters is located at 325 Golf Course Road in Mercedes. The June 8 meeting takes place between 4 and 6 p.m. at that office.

Spener said Clean Rivers Program staff will be available at the June 8 meeting to discuss any issues and questions the public has related to Rio Grande water quality. Copies of the CRPs 2010 Rio Grande Basin Highlights Report, with detailed water quality information, will also be available for distribution, she said.

The Rio Grande water quality studies are being carried out with funds from the American Recovery and Reinvestment Act of 2009.

Recovery Act funds are also being used for levee construction. IBWC Civil Engineer Rod Dunlap will be at the June 8 forum to give an update on levee construction projects in Hidalgo and Cameron counties.

The projects are designed to enhance flood protection in the Valley in accordance with standards established by the Federal Emergency Management Agency. Dunlap’s presentation will include current project construction updates on several levee construction contracts along the Rio Grande and off-river floodways affecting the communities of McAllen, Granjeno, Hidalgo, Pharr, San Juan, Alamo, Donna, Weslaco, Mercedes, La Villa, and La Feria, Spener said.

In a related presentation, Field Environmental Monitor Wacey Hough, a contractor with H2 Environment Services, will discuss environmental issues associated with levee construction.

The presentation will discuss nesting surveys, rare and endangered plant identification and relocation, wildlife identification and relocation, coordination with the U.S. Fish and Wildlife Service, wetlands preservation, and storm water pollution prevention.

Lower Rio Grande Citizens Forum was established by the U.S. Section of the IBWC to “facilitate the exchange of information between the USIBWC and members of the public about Commission activities in the Lower Rio Grande Valley.”

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ROUND ROCK, May 24 – During a press conference in Mission recently, Gov. Rick Perry referred to the issue of ground water extraction from the Edwards-Trinity Aquifer by Clayton Williams’ company, Fort Stockton Holdings.

A proposed plan to transport water via aqua ducts to the Midland-Odessa and San Angelo metropolitan areas is an issue requiring “the wisdom of Solomon,” Perry said, in a humorous reference to a prayer meeting he had just attended.

South Texas political leaders along the Rio Grande have joined their counterparts in the Fort Stockton area in requesting a moratorium on the water extraction plans of some 41,000,000 gallons per day for the next 30 years until an independent hydro-geological study can be completed. They want assurances that the extractions would not compromise the flow of the Pecos River into the Rio Grande, an estimated flow at the confluence of some 80,000,000 gallons per day.

The border leaders have nothing to worry about, hydro geologist, Mike Thornhill told the Guardian. Based in Round Rock, Texas, Thornhill has been contracted by Fort Stockton Holdings, a Clayton Williams Company, to conduct a two-year comprehensive study to determine if the amounts requested in a Fort Stockton Holdings permit would be “in compliance” with the rules and management plan of the Middle Pecos Groundwater Conservation District.

“I will look any political leader in the eye (from Mexico or South Texas) and assure them that the requested amount of water extraction would not compromise the flow of water from the Pecos River into the Rio Grande, nor the amount of water in Amistad Reservoir,” Thornhill told the Guardian, in a telephone interview.

“Based on our studies for the area, and our research and experience over the last 22 years, I have found that there is no possible way that neighboring communities or counties could be adversely affected by the amount of pumping that Mr. Williams is requesting.”

Certainly, the Rio Grande flows cannot be affected by the permitted pumping, Thornhill said.

“The point is – if the pumping cannot be detected in the Pecos River, there is no way the pumping can be detected in the Rio Grande which is more than 100 miles away. It is impossible,” Thornhill said.

There are several scientific reasons why this is true, Thornhill explained, many of which were presented at the most recent meeting of Groundwater Management Area 7 (GMA 7).

“The simplest explanation is that Fort Stockton Holdings is asking to use the same amount of water that they are currently permitted to use, which is even less water than was pumped from FSH’s properties in the past,” Thornhill said.

“All they are requesting is a change in use – they are not requesting any new or additional water. That is, instead of watering alfalfa, they would like to transfer their water to surrounding communities who have projected shortage of water.”

Thornhill said the water will either be pumped for farming, or for the beneficial use of tens of thousands of Texans.

“Again, the amount of water will not change. So, if the amount of water pumped does not change, the impact will not change. The permits will actually ensure that pumping will not be as much in the future as it was in the past,” Thornhill said.

Many political and community based entities have expressed skepticism with Thornhill’s assessment.

Jay Johnson-Castro, of the Rio Grande International Studies Center, based in Laredo on the banks of the Rio Grande, originally brought the issue of Pecos groundwater to the Guardian. He says communities on the Rio Grande are right to be concerned about the permit.

The sister cities of Laredo, Texas and Nuevo Laredo, Tamaulipas, the County of Hidalgo, and the Texas Border Coalition have all publicly expressed very public concern over the issue of extraction of water from the Edwards-Trinity aquifer, as well as its sale and transport to other West Texas metro areas. They are calling for a moratorium on the permit for water extraction until an independent hydro-geological study can be accomplished.

Fort Stockton City Manager Rafael Castillo, in a previous interview with the Guardian, expressed concerns that the precedent for large-scale extraction from the aquifer could indeed compromise the flow of water into Amistad Reservoir and the southward flow to the millions of residents on both sides of the Rio Grande down-river from the permit area.

Thornhill doesn’t share these concerns. “This is a false alarm,” says the hydro-geologist. “There is no measurable flow into the Pecos River (that could be affected by the extraction). Moreover, the Pecos River only provides 11 percent of the water delivered to the Amistad Reservoir.”

Thornhill, a registered professional geologist, is president of the Thornhill Group based in Round Rock.

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Click here to view resolution between the county of Hidalgo and RGISC.

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The IBWC traces its roots to the 1848 Treaty of Guadalupe Hidalgo and the Gadsden Treaty of 1853, which established temporary joint commissions to survey, map, and demarcate with ground landmarks the new United States (U.S.) – Mexico boundary. The Guadalupe Hidalgo Treaty of February 2, 1848 established the international boundary between the United States and Mexico. The Treaty of December 30, 1853 reestablished the southern boundary of New Mexico and Arizona to enable the United States to construct a railroad to the west coast along a southern route and to resolve a question arising from the 1848 Treaty as to the location of the southern boundary of New Mexico. The Convention of 1882 established another temporary joint commission to resurvey the western land boundary between the Rio Grande and the Pacific Ocean, rebuild the old monuments, and install additional monuments where necessary. U.S. Commissioner John Whitney Barlow and Mexican Commissioner Jacobo Blanco resurveyed the borderline and increased the number of boundary monuments from 52 to 258. This survey started at the El Paso, Texas – Ciudad Juárez, Chihuahua border in 1891, and concluded at the San Diego, California – Tijuana, Baja California border in 1894. Later as border populations increased during the 1900’s, the Commission installed 18 additional boundary monuments for a total of 276.

As the settlements grew along the boundary rivers (Rio Grande and Colorado River), settlers began developing adjoining lands for agriculture. In the late Nineteenth Century, questions arose as to the location of the boundary and the jurisdiction of lands when the boundary rivers changed their course and transferred land from one side of the river to the other. As a result, the two Governments adopted certain rules to deal with such questions in the Convention of November 12, 1884.

The U.S. and Mexico established the International Boundary Commission (IBC) on March 1, 1889 as another temporary body to apply the rules that were adopted by the Convention of 1884. The IBC was extended indefinitely in 1900 and is considered the direct predecessor to the modern day International Boundary and Water Commission. The 1884 Convention was modified by the Banco Convention of March 20, 1905 to retain the Rio Grande and the Colorado River as the boundary.

As border populations increased during the early to mid 1900's, the Commission was faced with many new challenges. The U.S. and Mexico used studies developed by the IBC as the basis for the first water distribution treaty between the two countries, the Convention of March 1, 1906, which allocated the waters of the Rio Grande from El Paso to Fort Quitman, an 89-mile (143 km) international boundary reach of the Rio Grande through the El Paso-Juárez Valley. This Convention allotted to Mexico 60,000 acre-feet annually of the waters of the Rio Grande to be delivered in accordance with a monthly schedule at the headgate to Mexico's Acequia Madre just above Juárez, Chihuahua. To facilitate such deliveries, the U.S. constructed, at its expense, the Elephant Butte Dam in its territory. The Convention includes the provison that in case of extraordinary drought or serious accident to the irrigation system in the U.S., the amount of water delivered to the Mexican Canal shall be diminished in the same proportion as the water delivered to lands under the irrigation system in the U.S. downstream of Elephant Butte Dam.

In the Convention of February 1, 1933, the two Governments agreed to jointly construct, operate and maintain, through the IBC, the Rio Grande Rectification Project, which straightened and stabilized the 155-mile (249 km) river boundary through the highly developed El Paso-Juárez Valley. The project further provided for the control of the river's floods through this Valley.

The IBC was also instrumental in developing the second water distribution treaty between the United States and Mexico in 1944, which addressed utilization of the waters of the Colorado River and Rio Grande from Fort Quitman, Texas to the Gulf of Mexico. The Water Treaty of February 3, 1944 expanded the duties and responsibilities of the IBC and renamed it the International Boundary and Water Commission (IBWC). The 1944 Treaty charged the IBWC with the application of the treaty and the exercise of the rights and obligations which the U.S. and Mexican Governments assumed thereunder and with the settlement of all disputes that were to arise under the treaty.

The 1944 Treaty provides that the jurisdiction of the IBWC extends to the limitrophe parts of the Rio Grande and the Colorado River, the land boundary between the U.S. and Mexico and to works located upon the border. Neither Section is to assume jurisdiction or control over works within the limits of the country of the other without the express consent of the Government of the latter. The works constructed, acquired or used in fulfillment of the provisions of the Treaty and located wholly within the territorial limits of either country, although these works may be international in character, they are to remain under the exclusive jurisdiction and control of the Section of the Commission in whose country the works may be situated.

Pursuant to the 1944 Treaty the IBWC has the status of an international body and consists of a United States Section and a Mexican Section. Each Section is headed by an Engineer Commissioner. Wherever there are provisions for joint action or joint agreement of the two Governments or for the furnishing of reports, studies or plans to the two Governments, it is understood that those matters will be handled by or through the Department of State of the United States and the Ministry of Foreign Relations of Mexico. Each Government affords diplomatic status to the Commissioner, designated by the other Government. The Commission, two principal engineers, a legal adviser, and a secretary, designed by each Government as members of its Section of the Commission are entitled in the territory of the other country to the privileges and immunities appertaining to diplomatic officers. The IBWC and its personnel may freely carry out their observations, studies and field work in the territory of the other country. Each Government bears the expenses of its respective Section; joint expenses which may be incurred as agreed by the IBWC are to be born equally by the two Governments.

Of the waters of the Rio Grande, the Treaty allocates to Mexico: (1) all of the waters reaching the main channel of the Rio Grande from the San Juan and Alamo Rivers, including the return flows from the lands irrigated from those two rivers; (2) two-thirds of the flow in the main channel of the Rio Grande from the measured Conchos, San Diego, San Rodrigo, Escondido and Salado Rivers, and the Las Vacas Arroyo, subject to certain provisions; and (3) one-half of all other flows occurring in the main channel of the Rio Grande downstream from Fort Quitman. The Treaty allots to the United States: (1) all of the waters reaching the main channel of the Rio Grande from the Pecos and Devils Rivers, Goodenough Spring and Alamito, Terlingua, San Felipe and Pinto Creeks; (2) one-third of the flow reaching the main channel of the river from the six named measured tributaries from Mexico and provides that this third shall not be less, as an average amount in cycles of five consecutive years, than 350,000 acre-feet annually; and (3) one-half of all other flows occurring in the main channel of the Rio Grande downstream from Fort Quitman.

The 1944 Treaty further provided for the two Governments to jointly construct, operate and maintain on the main channel of the Rio Grande the dams required for the conservation, storage and regulation of the greatest quantity of the annual flow of the river to enable each country to make optimum use of its allotted waters.

The 1944 Treaty provides that of the waters of the Colorado River there are allotted to Mexico: (1) a guaranteed annual quantity of 1.5 million acre-feet to be delivered in accordance with schedules formulated in advance by Mexico within specified limitations; and (2) any other waters arriving at the Mexican points of diversion under certain understandings. To enable diversion of Mexico's allotted waters, the Treaty provided for the construction by Mexico of a main diversion structure in the Colorado River, below the point where the California-Baja California land boundary line intersects the river. It also provided for the construction at Mexico's expense of such works as may be needed in the U.S. to protect its lands from such floods and seepage as might result from the construction and operation of the diversion structure.

In the 1944 Treaty the two Governments agreed to give preferential attention to the solution of all border sanitation problems.

The Treaty also provides that the IBWC study, investigate and report to the Governments on such hydroelectric facilities as the IBWC finds should be built at the international storage dams and on such flood control works, other than those specified in the Treaty, that the IBWC finds should be built on the boundary rivers, the estimated cost thereof, the part to be built by each Government, and to be operated and maintained by each through its Section of the IBWC.

The IBWC was instrumental in the development of the Chamizal Convention of August 29, 1963, which resolved the nearly 100-year-old boundary problem at El Paso, Texas and Juárez, Chihuahua, known as the Chamizal dispute, involving some 600 acres (243 hectares) of territory which were transferred from the south to the north bank of the Rio Grande by movement of the river during the mid-Nineteenth Century. By this Convention, the two Governments gave effect to a 1911 arbitration award under 1963 conditions. The IBWC relocated and concrete-lined 4.4 miles of the Rio Grande channel and transferred a net amount of 437.18 acres (176.92 hectares) from the north (U.S.) to the south side (Mexico) of the river.

The Treaty of November 23, 1970 resolved all pending boundary differences and provided for maintaining the Rio Grande and the Colorado River as the international boundary. The Rio Grande was reestablished as the boundary throughout its 1,255-mile limitrophe section. The Treaty includes provisions for restoring and preserving the character of the Rio Grande as the international boundary where that character has been lost, to minimize changes in the channel, and to resolve problems of sovereignty that might arise due to future changes in the channel of the Rio Grande. It provides for procedures designed to avoid the loss of territory by either country incident to future changes in the river's course due causes other than lateral movement, incident to eroding one of its banks and depositing alluvium on the opposite bank. This Treaty also charged the IBWC with carrying out its provisions.

The two Governments reached agreement for the solution of another long-standing problem regarding the quality of the Colorado River water allocated to Mexico under the 1944 Treaty, which was incorporated in Minute No. 242 of the IBWC dated August 30, 1973; and the IBWC submitted and the two Governments approved “Recommendations for the Solution of the Border Sanitation Problems,” in Minute No. 261, dated September 24, 1979, which provided that for each border sanitation problem, the IBWC would prepare a Minute that would identify the problem and the course of action for resolution. Pursuant to Minute No. 261, the IBWC subsequently concluded Minutes to address border sanitation problems at Naco, Arizona/Naco Sonora (Minute No. 273), Nogales, Arizona/ Nogales, Sonora (Minute No. 276), Laredo, Texas/Nuevo Laredo, Tamaulipas (Minute No. 279) and San Diego, California/Tijuana, Baja California (Minutes Nos. 283, 296 and 311), and to address the water quality of the New River at Calexico, California and Mexicali, Baja California (Minute No. 274).

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[West Texas Weekly continues to bring you insight into local politics. Mark Glover, Contributing Editor Alpine, explains the legal logic behind riparian rights.]

Alpine – While the West Texas water export plans of Clayton Williams hang in a Federal Court in Midland, Dr Megan Benson presented an historical overview of the evolution of Texas groundwater law at the Sul Ross campus last Friday night, hosted by the Center for Big Bend Studies.

“In Texas, because of the Rule of Capture, one landowner or corporation can mine and market a disproportionate amount of water for immediate gain seriously impacting or depleting resources without liability to his neighbors,” said Benson, a recipient of the 2009 Fellowship for Excellence in West Texas History.

Texas, the only western state that practices the Rule of Capture, aka the Law of the Biggest Pump, gained its head of steam in a 1904 court case known as W.A. East vs. Houston & Texas Central Railroad Inc.

“It was not a water case but a railroad case. It fits perfectly with railroad litigation of the time, but it inadvertently became a water case,” Belton explained. “No law has impacted Texas environmental politics more.”
The Right of Capture is an ancient English Common Law concept that originated in conflicts between landowners and hunters. Specifically it asked at what moment the animal becomes the private property of the hunter,” Benson said.

Later in an 1843 English courtroom, this concept was applied by the court to settle a case involving a drained well. By implementing the Rule of Capture, courts ruled against neighbors trying to collect damages from those who out-pumped them.

Standing at the podium with black framed glasses and a leather jacket, Benson, whose SRSU funded research fellowship allowed her to study the subject for one year, unveiled the back story that led to the landmark decision of 1904.

Edward House, son of a wealthy Texas banker, pursued a course of multiplying his father’s substantial holdings by engaging in transportation. Eminent in the dredging of the Houston ship channel in the 1890’s, House was also engaged in the railroad business at a time when common carrier law was being crafted by the Texas legislature.

“Weak in appearance, with no discernable public speaking skills, House was a behind the scenes man,” Benson said.
House befriended William Hogg who went on to become Texas governor in 1891, as well as a series of governors through 1907 including Charles Allen Culberson, Joseph Draper Sayers and Samuel Willis Tucker Lanham part of “our crowd” a term used by House to define his political posse.

This series of governors oversaw the sale of Texas public lands that financed Texas schools. They also crafted early common carrier laws that, according to Benson, “chipped away the liability by common carriers for negligence.”

“If a train killed a horse at a railroad crossing – no negligence. If a man was unloading a boxcar and hurt himself – no negligence. If a bridge failed – no liability,” Benson said.

Trains needed water for their locomotive steam plants and what W.A. East didn’t realize when the Houston and TC Railroad built a well across the street from his, in what is now downtown Denison, was that a 50,000 gallon a day well was going to suck his well dry.

He took them to court in Denison and lost. He appealed at the “Old Red” court house in Dallas where Judge John Bookhout of the Fifth Circuit Court of Civil Appeals overturned the case.

“It shocks our sense of justice… that the appellee claims immunity from liability,” said the former New Yorker turned Texan said.

The judge ordered the railroad to pay $ 210 to Mr. East.

But the railroad appealed to the Texas Supreme Court.

Frank Alvan Williams, presided over the case. A friend of Edward House, and a member of “our crowd,” Williams was appointed to the 1st District Court of Appeals in Houston by Governor Hogg in 1892 and went on to the Texas Supreme Court in 1899.

The court’s decision of 1904 includes the now sacred if not infamous wording, “Because the existence, origin, movement and course of such waters, and the causes which govern and direct their movements, are so secret, occult and concealed that an attempt to administer any set of legal rules in respect to them would be involved in hopeless uncertainty, and would therefore be practically impossible.”

The court’s finding not only used ephemeral wording to explain the “occult” like nature of water to establish the non-liability of the railroad for sucking their neighbor’s well dry, but also exercised selective precedence mining these words from an Ohio court’s decision rendered fifty years earlier.

The Oil Industry in Texas also works under the Rule of Capture and the law was summarily explained by Irish actor Daniel Day Lewis in the Marfa filmed movie “There Will Be Blood” –

“If you have a milkshake and I have a milkshake and I have a straw and my straw reaches across the room and starts to drink your milkshake: I drink your milkshake! I drink it up!”

Thirty miles east of that movie set, Benson, who earned her PHD in American History from the University of Oklahoma, delivered the final touches of her lecture.

“The Texas Supreme Court found no validity in Judge Bookhouts opinion,” Benson said. “It simply served the intent of the railroad.”

Benson reported House was later quoted as saying in reference to “our crowd” – “we got just about everything we wanted, including the East Decision.”

Benson went on to point out some exceptions to the Rule of Capture:
1917, Article 16 – known as the conservation amendment, legislated against wasting water.

1949, Texas legislature authorized the creation of Underground Water Conservation Districts, most of them starting in the panhandle to protect the Ogallala Aquifer.

1993, State Bill 1477 created the Edwards Aquifer Authority which replaced the Edwards Underground Water Conservation District, an entity that Benson suggested was “more powerful” than a regular district and that “challenged the Rule of Capture.”

1997, SB 1 and 2001, SB2 extended the regulating authority of water districts.

Today the 50/50 Rule is making its way into many regional Texas jurisdictions, a rule that limits depletions of aquifers to no more than 50 per cent in a fifty year period. Some districts are limiting pumping to the size of the land owned and still others permit pumping based on historical usage. Challenges to these new water distribution limits consistently find their way to the courtroom where ultimately the Rule of Capture prevails.

Brewster County Judge Val Beard has stated in the past that she believes the law and the conservation districts should be abolished, clearing the way for TORT law to adjudicate liability issues. Hawaii eliminates the problem altogether by claiming all underground water as property of the state, as do most countries in the world.

Likely most rural west Texans will not be sitting back and enjoying their underground water being pumped to urban centers like Midland-Odessa as Clayton Williams plans. Fort Stockton Holdings Inc., a Williams’ family owned operation with farming roots in Belton, seeks damages in a federal suit against the Middle Pecos Groundwater Conservation District for denying their water export permit. FSH is not challenging the Rule of Capture, but rather claims their constitutional rights under Articles 5, 13, and 14 in the US Constitution were breached in the water district’s decision.

In the meantime the hairy hunted animal of the Rule of Capture continues un-caught and legally safe in the occult wanderings of the Texas legal system.

“The Rule of Capture, established in the 1904 East case, and based on 1843 English precedent, allows for enormous private wealth to be gained yet depletes our most valuable resource. By selectively using precedent and undisputable sacred text, the question is, ‘Is the Rule of Capture a good resource management plan?” Belton asked. “’And was it ever?’”

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or - "When everybody owns everything, nobody will take care of anything." Aristotle

INTRODUCTORY OBSERVATIONS

The above photo is of the old pool at Comanche Spring (Fort Stockton, Texas), probably taken during the late 1940s or early 1950s. Comanche Spring was the third largest spring in Texas. It was also a source of irrigation water for at least 90 years, and a rare oasis in the semi-arid region of Trans-Pecos Texas. Average daily discharge was estimated to be 21 million gallons. Comanche Spring ceased to flow more 50 years ago, after Clayton Williams, Sr. developed a well field to supply water to his crops. Williams' well field dried up the spring and captured the groundwater that had been used for decades to irrigate more than 6,000 acres of farmland near Fort Stockton. Comanche Spring stands out as a prime example of the destruction of a commons, as well as a basis for reasonable regulation of groundwater pumpage AND the assignment of well-defined and enforceable rights to groundwater in Texas.

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A principal problem underlying the 1949 and 1985 GCD amendments was the failure to recognize that the flow of groundwater is not controlled by political, but by hydrogeologic, boundaries. Furthermore, there was no requirement that GCDs overlying a common aquifer develop a cooperative set of management plans. In most cases, there was no evidence that GCDs intended to develop plans that would have led to co-operation or to minimal departures from the Rule of Capture (ROC). Most GCDs, in fact, seem to have been committed to preserving the doctrine under the guise of “local control.”

GROUNDWATER MANAGEMENT AREAS – A STEP BEYOND GROUNDWATER CONSERVATION DISTRICTS

As noted above, many GCDs were delineated on the basis of political — not hydrogeological — boundaries. Although the districts have been encouraged to work with each other to produce coherent management plans, prior to 2005, it was often the case that there was little interaction among the districts and that many GCDs pursued objectives which were not in sync with those of neighboring districts. To rectify shortcomings of the GCD system, the Legislature, in 2005, adopted House Bill 1763, which required joint planning among the districts within designated Groundwater Management Areas (GMAs) that cover all of the State’s major and minor aquifers.

The Legislature specified that TWDB was to use aquifer boundaries or subdivisions of aquifer boundaries in its delineation of each GMA. TWDB proposed 16 management areas, with boundaries which reflect those of the major hydrogeologic areas. (Mace, R.E., R. Petrossian, R. Bradley, and W.F. Mullican, III, A Streetcar Named Desired Future Conditions: The New Groundwater Availability for Texas; presented at the 7th Annual The Changing Face of Water Right in Texas, State Bar of Texas, May 18-19, San Antonio, TX.

Under the provisions of the 2005 law, representatives of GCDs are required to meet at least once every year to conduct joint planning and to review groundwater management plans and accomplishments in their respective GMAs. The intended long-term effect is to get GCDs to work together under rules which will lead to a better understanding of hydrogeological conditions and the availability of groundwater throughout the State. From this, it is expected that coherent sets of regional management plans will be developed to ensure that groundwater resources will be available to residents of Texas through the year 2060.

ECONOMIC IMPLICATIONS OF THE RULE OF CAPTURE – AN INTRODUCTION TO THE TRAGEDY OF THE COMMONS

Was anything ever to be gained by embracing the ROC as the principal groundwater doctrine of Texas?

Two factors which might be cited in favor of the ROC are:

1. The ROC encourages economic development through maximum utilization of a source or sources of groundwater; and

2. The ROC entails minimal government involvement in the operations of water wells.

It should be noted that “maximum utilization” is not synonymous with “optimal utilization.” Microeconomic theory emphasizes optimal over maximum utilization, as optimal utilization embodies the concept of economic efficiency, as measured by marginal cost/profit. Maximum utilization embodies neither. This is the equivalent of saying that one can produce a natural resource over a given period of time in a manner that would maximize total revenue (assuming that the marginal profit of the last unit produced is zero) instead of producing the resource over a shorter period of time, such that the production schedule fails to yield a marginal profit of the last produced unit of zero. With respect to the exploitation of nonrenewable natural resources (e.g. gold, oil, uranium), this is best explained by Harold E. Hotelling’s theory of the mine (The Economics of Exhaustible Resources, in The Journal of Political Economy, v. 39, pp. 137–175 (1931)), in which Hotelling postulates that optimal resource exploitation is achieved when the marginal profit of the last extracted unit is zero. Although Hotelling’s theory is most often applied to mining operations, it is reasonable to extend the theory to an exhaustible or potentially exhaustible resource, such as groundwater.

With regard to the second point above, there is nothing in economics to suggest that unfettered exploitation of a natural resource such as groundwater is economically efficient or amounts to sensible resource management. With respect to groundwater, “minimal government involvement” might be required to prevent over-exploitation, depletion, contamination, and, insofar as groundwater can be considered to be a “public good,” promotion of the health, safety, and welfare of the public.
Factors which might be cited as reasons to amend or replace the ROC with a different groundwater rights doctrine are:

1. The potential for overproduction and depletion;

2. Inefficient use and devaluation of the resource;

3. The potential for a Tragedy of the Commons; and

4. The ROC ignores the needs of future generations.

Points 1 and 2 are well-established consequences associated with the aggressive exploitation not only of water but of other natural resources that can be considered to form a commons (e.g., petroleum reservoirs, “forests, rangeland, parks). As such, both are factors that underlie the devaluation and/or destruction of a commons, cited as point #3 above. A prima facie example of points #1 and #2 is found in the petroleum industry of Texas, particularly in the overexploitation of early giant fields such as Spindletop (near Beaumont, Texas).

Discovered in January 1901, Spindletop attracted thousands of speculators and producers to Beaumont, Texas. Each producer sought to extract as much oil as possible from his small lease, under the assumption that other producers would drain “his” oil if he did not produce it first. The result was a proliferation of closely spaced drilling rigs, each producing from the same reservoir. The effect of the production frenzy was rapid depletion of reservoir pressure and rapidly decreasing output. Initial production was as much as 100,000 barrels of oil per day, and total production in 1902 was 17,500,000 barrels (47,945 barrels per day). By 1904, total production was 3,650,000 barrels (10,000 barrels per day).

The Big Oilfields website notes the following with regard to the production of oil at Spindletop:

Mineral rights to the oil under the leases worked according to the old English "rule of capture." Under this principle, anybody who had property or a lease anywhere over the pool of crude had the right to suck it out of the ground as fast as he could.

With little understanding of the underground pressures of natural gas and water, the producers extracted too much oil too quickly. Water seeped into the reservoir. The flow of oil forced to the surface by pumps slowed to a trickle.

The original production area at Spindletop was reduced to a minor oil field by 1909.

Point #4 is a much-discussed and debated matter involving commitments of one generation to its successors. Given the opportunity to exploit aquifers, petroleum reservoirs, forests, and rangelands, it is reasonable to inquire whether the current generation has an obligation to generations yet to come to ensure that adequate resources will be available or that public lands will not be degraded from overuse.

DEFINITION OF A COMMONS AND THE TRAGEDY OF THE COMMONS

A "commons" is any resource which is used as though it belongs to all. An aquifer would easily qualify as a commons. If anyone can use a shared resource simply because one wants or needs to use it, then one is exploiting a commons. A commons can be destroyed by uncontrolled use.

Garrett Hardin described factors that underlie the destruction or degradation of a commons in his essay The Tragedy of the Commons. (Refer to Science, Vol. 162, No. 3859, Dec. 13, 1968.

Hardin’s essay is developed around a parable about the grazing of animals on open pastureland. The owners of the animals are motivated to increase their personal wealth by adding one head of stock at a time to their respective flocks. However, each animal added to the total stretches the carrying capacity of the land. The degradation attributable to each additional animal is small, yet if all owners pursue this strategy, the carrying capacity will be exceeded and the property severely damaged or destroyed. It is not necessary for all users of a commons to behave as described by Hardin. The destruction of the resource can occur if only one user attempts to dominate the commons.

COMANCHE SPRING

One such example of damage to a commons involving the production of water is the matter of Comanche Spring, located at Fort Stockton, Texas (refer to the photo at the beginning of this post). Comanche Spring was a source of water for animals and humans, and the substantial discharge (estimated to be as much as 21 million gallons per day Mgd) made the spring a prime hunting ground for Indians and an ideal location for an army post and a stagecoach stop. The spring also provided water for irrigation, and, in later years, it was the site of a large pool in a municipal park. The spring, however, ceased to flow as a result of pumping to support irrigation, principally by one farmer.

In A Primer for Understanding Texas Water Law, Timothy L. Brown describes the facts and legal issues at the core of the matter. The Comanche Spring case (Pecos County Water Control and Improvement District No. 1 v. Williams, 271 SW2d 503 (Tex.Civ.App–El Paso 1954, writ ref’d n.r.e.) is prominent in Texas water law. Brown’s account of the matter is reproduced below:

At Fort Stockton, Texas, there were large, prolific springs, named Comanche Springs. The springs provided a water supply for numerous irrigators in the Pecos County Water Control and Improvement District, which upon development, supplied water to irrigate over 6,000 acres.

Up gradient from the springs was land owned by Clayton Williams (Sr.) …. At the time the case arose, Texas was in the early stages of the Great Drought of the 1950s and Williams needed water for his crops. He developed a well field and began to pump water from the formation. The pumping resulted in drying up the springs, which cut off the water supply for the irrigators in the district. Litigation followed. The irrigators asserted that they and their predecessors had owned the location and flow of the spring and that they had used the water beneficially for ninety years. By virtue of this, they alleged, they acquired the right to be protected in the subsurface source of the water. They also plead in the alternative that if they did not own the source of the water supply, they were nevertheless entitled to a fair share of the source of supply. The gist of this argument was that they had a correlative right to the water. They also alleged that the spring was not fed by percolating groundwater, but rather by a well-defined underground stream in which they acquired rights by virtue of claims filed with the Board of Water Engineers. The remedy they sought was an injunction against Williams’ pumping.

Williams countered by filing exceptions to the plaintiffs’ petition. He asserted that the water was percolating groundwater and since no waste had been alleged, he was entitled to a judgment on the basis of the East case. He also asserted that the plaintiffs’ allegation about a well-defined underground stream was insufficient because the source, location, beds and banks and course of the so-called well-defined channel were not provided. The trial court sustained Williams’ exceptions. The irrigators appealed.

The El Paso Court of Civil Appeals affirmed the trial court judgment. The court held that Williams absolutely owned the water beneath his land and the plaintiffs had no correlative rights in it. As to the general allegation about the well-defined stream, Williams’ exceptions were well taken because there was no evidence to support the proposition. As to the failure of the spring when Williams pumped, that did not prove the existence of a well-defined underground channel.

On appeal to the Texas Supreme Court, the plaintiffs attempted to avoid the effect of the East case with an interesting argument. The argument was that the percolating groundwater referred to in the East case did not include water moving in well-defined underground strata. Percolating groundwater, according to modern hydrology, is divided into two classes: first, “diffused percolating water,” defined as slowly moving water which cannot be traced directly as the source of a natural stream, and, second, “percolating water feeding a natural water course,” defined as water which supplies a surface water stream. The former definition was what was used to define percolating groundwater at common law, so East did not apply.

The significance of this argument was, if the Supreme Court adopted the definitions, East would have been stripped of its significance. This is because the facts about most groundwater are known or subject to being known. Thus, once groundwater reached a known water sand, it would no longer be percolating water subject to private ownership as provided by East. This comports with the Attorney General’s earlier opinion.

The Supreme Court declined to take the case and did not write an opinion. By declining to take the case, we can only infer that the Supreme Court apparently rejected the proposition.

The Comanche Spring case stands out as an example of the destruction of a commons for several reasons:

1. By 1954, hydrogeology had advanced enough since the formulation of Darcy’s law in 1856 that the fundamental principles of hydrostratigraphy and the flow of groundwater on local to subregional scales were well understood.

2. By 1954, the effects of pumping on water levels were not mysterious, many thanks to the work of hydrogeologists and civil engineers with the Water Resources Division of the United States Geological Survey.

3. Arguments that Comanche Spring was fed by “percolating water” (as understood in the East case) instead of “water moving in well-defined underground strata” (as made on appeal) were clearly absurd. All that was required to counter the claims of Williams’ attorneys was an investigation of the hydrostratigraphy of the area, measurements of water levels in wells between Williams’ property and properties downstream of the spring, and evaluation of drawdown and recovery from pumping tests.

4. Williams’ pumping caused water levels to fall below the discharge point of the spring, and the lower water levels led to the cessation of discharge. This amounted to as much as 21 Mgd of captured flow to support Williams’ farm and to the loss of water to support irrigation on 6,000 acres that had been sustained by spring flow for many years. This effectively gave Williams a monopoly over a commons that had served a great many people for at least 90 years.

5. The cessation of flow also destroyed a rare water resource in west Texas and denied residents of Fort Stockton and the surrounding area the recreational and aesthetic equivalent of the springs of Balmorhea (Reeves County) or Barton Springs (Travis County).

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by Bob Campbell
Midland Reporter-Telegram

Published: Tuesday, May 11, 2010 8:15 PM CDT

Two lawsuits associated with Midland oilman Clayton Williams' Pecos County water pipeline project have been dropped.

Williams in December and January had filed state and federal suits against Fort Stockton Mayor Ruben Falcon and the Middle Pecos Groundwater Conservation District, alleging Falcon had impugned his reputation for honesty and the water district improperly refused to process his application.

(READ THE STATEMENTS: Mayor Ruben Falcon and Clayton Williams)

Midland attorney Robert Rendall said Tuesday that the first rhubarb was settled when Falcon apologized and the second ended as the district agreed to give due process to Williams' application to pump 42.3 million gallons a day through a $250-$300 million pipeline 100 miles northeast to west of Midland International Airport.

"Mayor Falcon issued a statement of apology and Mr. Williams agreed the two sides will do a better job of communicating with each other going down the road," Rendall said. "Mayor Falcon acknowledged that some of the characterizations he had made could be interpreted negatively.

"The federal suit was dropped when the water district accepted the application because that was the whole reason for filing it."

Rendall said the district will probably start the hearing process in about two months.

Williams said after the suits were dropped that his reputation "is important to me.

"It's hard to do business with people if they cannot trust my word or rely on my handshake," he said. "A reputation for honesty can be as hard to earn as a fortune, and it is more valuable because fortunes can be lost and won again. But once a reputation for honesty is gone, it is gone forever."

Austin attorney Bruce Scrafford said in January that Williams and his Fort Stockton Holdings had spent more than $1 million researching the plan to continue using no more water than Williams is already allocated for irrigation.

Scrafford said four studies in 20 years, including a recent analysis by Thornhill Group hydrologists from Round Rock, proved the Edwards Trinity Aquifer under Williams' 13,000 acre alfalfa farm southwest of Fort Stockton would constantly replenish itself.

Seeking to change the farm's permit from agricultural to out of county transfers for municipalities and businesses, Scrafford said the farm may now pump 47,418 acre-feet of water annually while the city of Fort Stockton will need fewer than 3,500 acre-feet per year for the next 50 years.

Using 42.3 million gallons a day for 365 days would total 15.4 billion gallons, or 47,418 acre-feet, according to references. An acre-foot (water a foot deep more than an acre of land) is 325,851 gallons.

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Dear RGISC Members:

The 2010 annual meeting of the Rio Grande International Study Center (RGISC) will be on Thursday, May 20th at the Lamar Bruni Vergara Environmental Science Center at the Laredo Community College Campus. The members meeting, scheduled for 6:00 p.m. will include refreshments. There will be an update of the on-going projects by the RGISC Board. There will be plenty of time for questions and answers.

This present s an opportunity for participants to also visit the Center’s many live exhibits. Outdoor exhibits include alligators, gray foxes , racoons, bobcats, coatamundi, porcupines, fish, turtles, lizards, snakes, catus gardens, and other native plant and animal species. The living laboratory provides many interesting indoor exhibits of animals that live in the Rio Grande Watershed.

Your membership attests to your belief in the RGISC mission of improving and protecting water quality and quantity in the Rio Grande through reseach, education and binational cooperation. Please invite your friends to the annual meeting and encourage them to become members. We hope you will attend and please feel free to bring friends and neighbors to the annual meeting, enjoy the expanding richness of the Center, and join to help us provide environmental education to the community in the coming year.
Please contact our Administrative Assistant, Hilda Martinez at 721-5392 or rgisc@laredo.edu to let us know how many folks you will be bringing. This will help us make preparations for the refreshments and increase your enjoyment of the Center.

Sincerely,

Jay J. Johnson-Castro, Sr. Executive Director

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By Chris Roberts \ El Paso Times

EL PASO -- The city will save more than $17 million during the next decade thanks to a new agreement with the district that provides about half of El Paso's drinking water.

"Financially, it is significant," said Nick Costanzo, Public Service Board vice president of business and finance. "Based on the contract that was in place, the price would have more than doubled in 10 years. ... It certainly takes some of the pressure off for future rate increases."

The El Paso County Water Improvement District agreed to freeze the price of some water it provides for two years and then tie annual increases to the consumer price index with a cap of 4 percent. The previous agreement, part of a 40-year contract that is renegotiated every 10 years, called for 8 percent annual increases.

Water obtained under the "2001 contract" now costs $260 per acre foot. An acre-foot can supply the household needs of two four-person families for one year. Under the new agreement, the city will pay about $65.8 million to the district during the next 10 years.

The contract covers about 18,000 acre feet of the total 61,000 acre feet supplied by the district. Water in that contract is the most expensive. Other contracts going back to the 1940s set lower prices.

people are paying in California."

The higher price is part of doing business in arid locations, Costanzo said, where water is harder to find. He said the city's price is among the lowest in the Southwest.

It took nearly 30 years of haggling among the Elephant Butte Irrigation District in New Mexico, the federal Bureau of Reclamation and the county water district to reach agreement on how Rio Grande water would be allocated. The city is a district member because it has water rights for about 3,200 acres it owns.

"The Elephant Butte Irrigation District is happy, we're happy and the Bureau of Reclamation is happy," said Jesus "Chuy" Reyes, who manages the water district.

It was not always so.

"We were fighting New Mexico. We were fighting the irrigation district. We were fighting the colonia development," Archuleta said. "We tore down those adobe walls, if you will."

Reyes was less poetic. Archuleta "and I worked it out at lunch," he said.

The agreement became final at the end of March.

River water, flowing mostly from snowmelt in the mountains of New Mexico and Colorado, is vital to El Paso's long-term survival. It is considered a renewable resource.

The city wants to use as much river water as it can to conserve what is available in the Hueco Bolson, a vast aquifer that runs parallel to the Franklin Mountains on the city's East Side. A small portion of it is relatively easy to treat. The larger portion is brackish and will require relatively costly treatment at the city's desalination plant.

"A child born today is probably going to live 100 years," Costanzo said. "We want to have 75 percent of the Hueco potable water available 100 years from now."

As El Paso grows during the next 10 years, the city will increase output from the desalination plant, Costanzo said. "It's also an insurance policy for when there is a river drought," he added.

During a river drought, all members take an equal hit, Reyes said. In the drought of 2003 and 2004, members received half of their allotments, he said.

Those members have about 32,000 water accounts that include small tracts and large farms. The district's 100 employees are responsible for operating and maintaining about 350 miles of irrigation canals that stretch from the New Mexico state line to Hudspeth County, Reyes said.

"Mostly it's going to pecan orchards," he said. "There is a lot of cotton still in the valley. We don't have as many vegetables."

It was agriculture that prompted the federal government, looking for ways to speed development of the West, to begin water projects in the late 1800s. Flood control and farming were the goals, which is why the district controls the water.

"Recreation and municipal use were not part of the equation," Archuleta said.

The Elephant Butte and Caballo dams were built in the early 1900s, he said. It wasn't until the early 1940s that the city began staking its claims. For decades, El Paso relied mostly on groundwater, Archuleta said.

Now the city waits for stream flow predictions based on snowpack. There is good news this year.

The region will receive its full allotment, Reyes said.

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Commissioners eye legal action to stop Fort Stockton plan

By Zach Lindsey LAREDO MORNING TIMES

When the Webb County Commissioners Court voted Monday to oppose a plan to draw water from the Pecos River watershed upstream of the Rio Grande, they became one more voice in the border region speaking out against the proposal.

But the court wants to go two steps further: Commissioners are suggesting legal action, as well as taking the issue to Austin.

The Fort Stockton Holdings plan to export 41 million gallons of water a day from Pecos County has drawn negative reactions from many border governments, including the City of Laredo and Nuevo Laredo.

Water rights in Fort Stockton have attracted the attention of border communities after a plan was announced by Clayton Williams to export water from the Fort Stockton area.

Although the Williams family, owners of Fort Stockton Holdings, has been pumping water from the watershed for irrigation since the 1950s, this is the first time they will export that water for sale to regions outside of the watershed.

Geoscientist Mike Thornhill, who has done more than 20 years of research on the groundwater beneath the Fort Stockton Holdings property, says there is “no possible way that neighboring

counties or communities could be adversely affected by the amount of pumping that Mr. Williams is requesting.”

They will not be pumping any more water than they currently pump, and Thornhill stressed that “the amount of water… will not change.

If the amount of water does not change, the impact will not change.”

But Rio Grande International Study Center Director Jay Johnson Castro described to the court a pumping process that “dried up about 43 of 46 springs which, prior to this happening, flowed into the Rio Grande.”

At the time, the Williams family referred to a Texas law called the Rule of Capture, which states that the groundwater on their land belongs to them, as opposed to surface water, which belongs to the state.

Johnson Castro called the law “archaic.”

As for the impact, Johnson Castro disagreed with Thornhill.

“We don’t know the impact, but we think we ought to know the impact before we allow it to occur,” Johnson Castro said. He called for a “moratorium for inadequate science.”

Commissioner Sergio “Keko” Martinez recommended helping the Rio Grande International Study Center in any way the court could, including possibly providing financial support.

“Certainly, this thing is going to affect Webb County,” Martinez said.

The Rio Grande “is certainly our main water source, and any effect… upstream would certainly carry effects down here.”

After discussing the Rule of Capture, paired with a reminder that, based on U.S. Census figures, the border region could grow by nearly 300 percent by 2050, County Judge Danny Valdez wondered if the court shouldn’t bring the situation to Austin and place it on the county’s legislative agenda.

Valdez suggested formulating legislation to do away with the entire Rule of Capture.

That would address concerns over future plans to draw water from the watershed. Johnson Castro called the Fort Stockton Holdings situation a “precedent,” and the court worried that, if Williams is successful, other private entities will do the same.

During the state’s last big drought in the late 1990s, the Rio Grande didn’t make it to the Gulf of Mexico, Johnson Castro said.

“This was before any such export out of our watershed,” Johnson Castro said

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El millonario empresario texano Clayton Williams ha solicitado la autorizacion del distrito de conservacion de agua del condado de pecos para extraer 45-trillones de galones, de agua del Rio Pecos durante un periodo de 30 años. Williams se dice pagaria por el agua, para luego venderla. Esto a puesto en alerta a autoridades de ambas fronteras, por el impacto que podria tener al rio bravo, porque el rio pecos de donde sacaria el agua se conecta con lo que es la principal fuente de agua de las comunidades fronterizas. Wendolyne Rivera nos amplia la informacion en exclusiva.

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Many environmentalists, along with state, city and county leaders, are up in arms over a plan to take millions of gallons of water a day from the Rio Grande.

It's a plan by billionaire Clayton Willams to pump 40,000,000 gallons of groundwater from a watershed that feeds the river in Fort Stockton area to the city of Midland, Texas.

House Bill 4805 sets up the Texas Water Supply District near Midland International Airport.

It's good news for that city which has been looking for a new water source for decades but could be devastating for cities and towns along the Rio Grande.

The proposal would not only allow for the pumping of water out of the river, but also a $300,000 state loan to help pay for a pipeline from Fort Stockton to Midland.

Many border leaders plan a lawsuit if the plan moves forward.

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As concern mounts on both sides of the border about a plan to export water from sources in
South Texas, the City of Laredo is doing its best to fight the plan. On Monday, the City Council unanimously approved a resolution against it. The plan, the brainchild of Clayton Williams’ Fort Stockton Holding Company, would extract about 41 million gallons a day from reservoirs in Pecos County. The aquifers act as feeders into the Pecos River, a tributary of the Rio Grande — the only water source for many border cities, including Laredo. Although Williams already extracts 41 million gallons per day to irrigate farmland in Pecos County area, Rio Grande International Study Center Director Jay Johnson Castro said that the exportation of water from the region will have bigger consequences for the watershed. Mayor Raul Salinas complained about the fact that Williams did not come to Laredo or send a messenger to address his concernsWilliams, however, sent a letter, which mentioned economic development.
Johnson Castro argued the point, saying that Williams’ economic development could happen at the loss of other communities down the river. Councilman Gene Belmares worried that estimated growth in Laredo will mean that the city may one day be forced to import water from an outside source — the same type of source that, by signing the resolution, the city is opposing.
“We may be faced with the same economic question that (Midland, the planned purchasers of
Williams’ water) is asking, which is how do we get more water,” Belmares said.“We don’t have the answers for that,” Johnson Castro replied, but added that the real solution involves cooperation between the United States and Mexico.With Williams’ current pumping of 41 million gallons a day during irrigation times, only about two or three of 46 Pecos County springs flow in the summertime. In the winter, all of them flow, according to Johnson Castro.“So there’s a direct correlation?” Belmares asked. “Yes,” Johnson Castro said. “Motion to approve,” Belmares said.

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McALLEN, May 3 – Two more elected officials down-river of the Amistad Reservoir have weighed in on oil tycoon and developer Clayton Williams’ application to extract groundwater from the Pecos River watershed.

Hidalgo County Judge Rene Ramirez and McAllen Mayor Richard Cortez have followed the lead set by Laredo Mayor Raul Salinas, who made clear his forceful opposition to the plans two weeks ago.

In an interview with the Guardian on Saturday, Ramirez characterized William’s intention to draw 41 million gallons per day from the Edward’s Aquifer as “devastating.”

“Water is not a luxury, it is a necessity. When you have that kind of impact on the kind of growing population that we have here, it causes serious concern. I’m sure there is going to be a strong argument that he doesn’t have the right. You can’t live without it. Development can’t occur without it,” Ramirez said.

The Guardian also interviewed Cortez on Sunday.

“I am aware of the Pecos groundwater issue and like most of the mayors of the border am strongly opposed to that (William’s) action. Whether or not he is supported by any state law, when the common good is threatened for the benefit of a few, the law in question loses its validity,” said Cortez.

Laredo Mayor Salinas said he and other border officials “will stand tall in staunch opposition” to efforts to extract billions of gallons of groundwater from the Pecos River watershed.

“I am in the process of contacting every political leader down-river from the Pecos. I am contacting the Texas Border Coalition, both of our U.S. Senators, John Cornyn and Kay Bailey Hutchison, all of our elected federal and state legislators and senators and will be meeting personally with the mayor of Nuevo Laredo tomorrow,” Salinas told the Guardian, in a phone interview two weeks ago.

“As mayor of a city that depends almost exclusively on the Rio Grande for our water, I will not sit by and let it be taken away by someone in West Texas.”

Last week Salinas and Nuevo Laredo Municipal President Roman Garza Barrios issued a joint proclamation opposing Williams’ intent to extract the large quantities of aquifer water destined for the Rio Grande, describing the application as “a significant thereat for residential, commercial, industrial and agricultural sustainability and growth in Laredo, Texas and Nuevo Laredo, Mexico.”

The Pecos River feeds approximately 80 million gallons of water per day into the Rio Grande.

In a telephone interview with the Guardian, Fort Stockton City Manager Rafael Castillo referred this reporter to the documents listed on this Web site:

http://www.cityfs.net/ (Click on to read documents relevant to the water losses projected by Fort Stockton)

The hydro geologic study conducted by the Texas Water Development Board indicates that if the permit were executed as requested by William’s Fort Stockton Holdings Company, the net loss to the aquifer that ultimately feeds the Rio Grande would be 68,000 acre feet per year. An acre foot is an acre of water at a depth of one foot. One acre foot equals 325 851.429 U.S. gallons

Williams’ own study claims that no more water would be pumped from the aquifer than is already going on. The ancient Texas rule known as the “Right of Capture” based on old British Common Law grants ownership of ground water to the owner of the land above it. Subsequent state laws have come into conflict with the “Right of Capture.”

“Obviously there are differences in what Mr. Williams claims and what the Texas Water Development Board states through its study,” said Castillo acknowledging that it is yet to be determined what the net effect on water flow down river will be after such a huge net loss to the Edwards Aquifer, because it is not yet known how much of that water ultimately flows into the Rio Grande.

“If Clayton Williams is ultimately successful in sending billions of gallons of water to the Midland-Odessa metropolitan area with approximately 300,000 population, what will the effect be on the 10 million people that live down-river on either side of the U.S.-Mexican Border,” Castillo said.

U.S. Congressman Henry Cuellar, D-Laredo, had already vowed to contact the office of Gov. Rick Perry and the International Boundary and Water Commission prior to the April 20th hearing held in Ft Stockton.

“We have some new and innovative ideas that we have about the recapture of water but we have to live in today’s times. Taking that much water away will have a devastating effect on our communities,” added Ramirez, summing up the projected role of such water loss to the Rio Grande Valley and cities on both sides of the river.

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Despite recent heavy rains and the Amistad and Falcon reservoirs being nearly full, the time to plan for future water needs along the Rio Grande — especially during times of drought — is now.
The Rio Grande Regional Water Planning Group (Rio Grande RWPG), one of 16 regional water planning groups around the state, will hold a public hearing at 11 a.m. Wednesday, at the Laredo Public Library, 1120 E. Calton Road, in order to receive public comments on a revised regional water plan. The planning group represents a wide range of stakeholders, such as irrigationdistricts, water utilities, cities, counties, environmental groups, small businesses and large industries. It has been working for the past year to update the 2005-06 regional water plan with new information. The revised and updated plan is known as the Initially Prepared Plan (IPP). Physical copies of the IPP were distributed last month to county clerks’ offices and certain libraries in the eight-county region in order to give the general public an opportunity to read the plan. The regional water plan is also available online at www.riograndewaterplan.org. Chapter 4 is a key chapter because it outlines the recommended strategies to meet water demands for the next 50 years. Those strategies include municipal and agricultural water conservation, acquisition of additional water rights from the Rio Grande, increased water recycling for non-potable use, and desalination of seawater and brackish groundwater. The deadline to comment is Monday, June 28, 2010. Comments received by the deadline will be incorporated into a new plan that will be submitted to the Texas Water Development Board on Sept. 1,
2010. All meetings of the Rio Grande RWPG are open to the public and include opportunities
for public comment. For more information, visit www.riograndewaterplan. org.

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(maybe in the end, more volatile and important to border region Texans than the current drug war – the legal division of the Rio’s waters is sometimes like Solomon’s decision! Read on……

Mexico unable to provide promised water to Texas
It’s caused international incidents with border flair. A Mexican governor has villified Texas leaders for playing politics with it and U.S. lawyers have threatened to sue for violation of international treaties related to it. Steeped in the annals of America’s symbiotic relationship with Mexico is the two countries’ long-standing and sometimes tense agreement over an issue more far-reaching than border security and immigration: water.

The Treaty of Feb. 3, 1944 — also called the “Treaty of the Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande” — directs Mexico to deliver water to the U.S. from six tributaries that feed into the Rio Grande, in exchange for water from the Colorado River. But the Mexican government’s inability to meet its current water obligation has some Texas businesses, agricultural leaders and state lawmakers keeping a close eye on their southern neighbor.

The treaty, which runs in five-year cycles, mandates that Mexico deliver an average of 350,000 acre-feet of water to the U.S. annually from the waters that flow into Mexico’s Rio Grande, known there as the Rio Bravo. In exchange, Mexico is entitled to 1.5 million acre-feet of water annually from the Colorado River, which drains into Mexico at the Arizona-California border. (An acre-foot of water is 325,821 gallons.) But in the first year of the treaty’s current cycle, which ended Feb. 28, Mexico delivered just 189,371 acre-feet of water to the U.S. — well short of the expected annual average.

Sally Spener, public affairs officer with the El Paso-based International Boundary and Water Commission (IBWC), said this doesn’t present a crisis yet; the treaty was authored in a fashion that allows Mexico to make up the difference. Mexico could make up last year’s deficit by releasing about 510,600 acre-feet by the end of February 2011. “The reason the treaty did this is, that particular region is affected by highly variable conditions, so that you can have low flow one year and you can have a hurricane the next,” Spener said. “That’s why it is a five-year average that is required rather than an annual delivery amount.”

Some critics have less confidence. They point to Mexico’s past delivery troubles, including a feud the country settled with U.S. farmers in 2005, after Mexico fell behind in its delivery by more than 700,000 acre-feet. At the time, Mexican authorities said their own water needs were preventing the release. After Mexico agreed to expedite delivery the dispute ended — but the aftereffects still linger.

The treaty directs water use in Texas from Fort Quitman to the Gulf of Mexico, and has a huge impact on Texas agricultural producers and municipal water suppliers who rely on the river or their water. The majority of water delivered to the U.S. comes from two main tributaries that feed into the Rio Grande: the Conchos, which enters the river in Presidio and in Ojinaga, Mexico; and the Salado, which enters the Rio Grande at the Falcon Dam reservoir, which sits on the Starr/Zapata county line south of Laredo.

At a recent interim committee hearing of the Texas Senate’s International Relations and Trade Committee at the Capitol, Texas Commission on Environmental Quality officials explained that Mexico is not in violation of the treaty — yet. “It is something that we have brought to the attention of the IBWC and have scheduled a meeting with the State Department,” testified Carlos Rubinstein, a TCEQ commissioner. “Anything that impacts the delivery of water to the Rio Grande ultimately impacts the delivery of water to all of the residents and could also impact the colonias.”

Ken Jones, the director of the Lower Rio Grande Valley Development Council, explained that Mexico holds the cards in the situation, at least geographically. “Seventy-eight percent of the watershed that feeds into Falcon and Amistad that supplies the water for the U.S. side is actually physically in Mexico,” he said. “That’s why the compliance thing is so important to us because it’s limited access to the U.S. side in terms of inflow to the reservoir system.”

What do the Mexicans say when asked about their shortfall? “They say they need if for their side, too,” said Jones.

Most of the Mexican water is used for irrigation in Texas. Rio Grande Valley Water Master Erasmo Yarrito, who calculated water use percentages for this story, said since at least 2007, the majority of the area’s water was used for irrigation — about 72 percent that year, rising to about 80 percent in 2008 and 2009.

Jones said reservoir levels are monitored on a regular basis to check the inflow of water from Mexico. The situation with Mexico was dire last time, not only because of the backlog, but because of the simultaneous drought experienced by the region. But the reservoirs are currently at greater than 80 percent capacity this time around — a good sign. Jones said it isn’t until reservoir levels reach the 50 to 55 percent capacity range that municipalities initiate local water restrictions.

Rubenstein said the impact of the Mexican water shortfall is “primarily to agricultural users, but that then translates into an economic impact to the Valley as well.” Because 100 percent of water-supply corporations and municipalities in the Rio Grande Valley get their water from the Rio Grande, Rubinstein added, “if the river is short-changed, it will affect just about every sector of the Valley.”

“We are continuing to work with them,” Rubenstein said. Mexico “fully caught up [in the past] and were actually able to close two cycles.”

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The West Texas town of Fort Stockton is challenging a billionaire oil tycoon over his plans to sell water from its local aquifer to a town more than 100 miles north, threatening to deplete the local water supply.

Clayton Williams Jr. — the 1990 Republican gubernatorial nominee — has a permit from Middle Pecos Groundwater Conservation District for his Fort Stockton Holdings to pump large amounts of water from the Pecos County portion of the Edwards-Trinity Aquifer. But the permit limits him to using the water for irrigation purposes, thwarting his plans to transfer and sell the water outside Pecos County to Midland and other municipalities for profit.

The citizens of Fort Stockton, said 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 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 because of low water levels.

Williams wants to draw more than 47,000 acre-feet of water annually from the watershed. An acrefoot 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.

“Laredo and Nuevo Laredo suck out about 100 million gallons a day. Now Clayton Williams wants to suck out 41 million gallons a day,” Castro said. “That’s 40 percent of what the two Laredos use, and one guy wants to extract it to make the money.”

Neither Williams nor his attorney responded to repeated requests seeking comment. Williams, however, has slapped Falcon with a civil suit alleging libel and slander after Falcon publicly raised concerns over what he alleges was Williams’ intent with the water and his determination to obtain it.

Falcon “indicated that individuals associated with Fort Stockton Holdings L.P. wanted to ‘roll right over several landowners by their abuse of condemnation power to condemn easements,’” Williams alleges in court documents.

The conservation district denied an application after the district determined it didn’t clearly explain how he planned to use the water, said Russell Johnson, the city of Fort Stockton’s Austin-based attorney with McGinnis, Lochridge and Kilgore. The conservation district is considering an amended application.

Williams 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 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 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 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.”

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.

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