[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.

________________________________________________

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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