The process is still playing out, nowhere as dramatically as in Texas, where 21st century water wars are breaking out across the state. In West Texas and the Panhandle, water marketers such as millionaire farmer Clayton Williams Jr., developer Woody Hunt, Denver billionaire Phil Anschutz and Dallas corporate raider T. Boone Pickens have plotted ways to move the precious commodity from rural areas to thirsty cities, lining their pockets all the way while ending farming as a way of life in the remote Dell Valley of West Texas and in Roberts County in the eastern Panhandle. North of San Antonio, golf course developments and booming bedroom communities compete with small towns over water in the Guadalupe River. Along the border, farmers squabble with their counterparts in Mexico for their fair share from the Rio Grande. In Kinney County, the heart of Texas’ artesian aquifer region, farmers are fighting each other over their rights to sell water. Caddo Lakethe only naturally formed lake in Texas, in the wettest corner of the statehas been the object of a historic tug-of-war between lake people and the nearby town of Marshall. Nueces Bay, and every other estuary on the Texas coast, is threatened by reduced freshwater in rivers because of increased withdrawals upstream. Court dockets are backlogged with so many waterrelated suits, you might say they’re waterlogged. Candidates for high office speechify about the problem but offer no real solutions. Lobbyists stuff their pockets in anticipation of a legislative session in which water will be one of the most serious longterm issues facing Texas. Much of this fussing and fighting comes courtesy of the Rule of Capture, an archaic piece of British common law carried to these shores. The Rule states that whoever owns a piece of property owns the water beneath it. The Texas precedent was set in 1843 in the case of Acton v. Blundell, when Texas was a republic and people were largely ignorant about the nature and movement of groundwater. The Rule of Capture was upheld in 1861, when Frazier v. Brown was decided, and again in 1904 when the Texas Supreme Court heard The Houston & Texas Central Railway Co. v. East case. The court upheld The Rule by reasoning water below the soil was too “mysterious, secret, and occult” to regulate. On the other hand, surface waterwater you can see, such as rivers, lakes, and baysbelongs to the people of Texas, a doctrine most Western states apply to both surface and groundwater \(See “Who’s Water No state politician of power and influence has since dared to propose eliminating The Rule, even though Texas is the only state in the arid half of the United States to embrace a principle other states regard as foolhardy. About the best the Texas Legislature could muster to address this unequal use of the earth’s most precious resource was the 1949 declaration that groundwater districts were the preferred method for local communities to “conserve, preserve, protect and recharge underground water reservoirs.” Although districts have the power to space wells to minimize drawdown, if it comes down to legal hairsplitting, The Rule still has precedence. If you are lucky enough to have groundwater, it is yours to sell for a handsome profit. Water is the New Oil in Texas. The winners and losers are still to be determined. MY OWN CURIOSITY ABOUT TEXAS’ quirky way of dealing with water began while wandering around a friend’s property a few miles northeast of Fort Stockton in that vague transition zone where the Permian Basin becomes the Chihuahuan Desert, and mesas turn into mountains. It began with a simple question about what appeared to be a sluice gate for a canal in a patch of overgrown desert. Fort Stockton, I quickly learned, was one of the early losers. Fort Stockton is known largely as a major food-fuelmotel way-station along Interstate 10. But for most of its history, the reason for Fort Stockton’s being was Comanche Springs, once the most abundant spring complexes beyond the Balcones Fault. Native Americans relied on the springs for thousands of years during seasonal migrations. The Spanish explorer Cabeza de Vaca passed through there in 1534. Comanche and Kiowa tribes used the springs as a rest stop on their way to and from raids into Mexico every fall. All kinds of adventurers, soldiers, railway workers, outlaws, tradesmen and thieves relied on the springs for their long treks between the civilized East and the wild West. The springs were named, according to several accounts, for the Comanche who was shot dead for trying to steal horses from Anglo travelers headed to California during the Gold Rush. His body lay by the springs for several years, which inspired the name Place Where the Comanche Thief Was Killed, ultimately shortened to Comanche Springs. It doesn’t take a military strategist to know that the best way to subjugate people is to take away their water. So Fort Stockton was founded in 1859 as a military camp with the dual purpose of disrupting traffic along the Great Comanche War Trail and protecting Anglo settlers. The fort was strategically located adjacent to the largest of several artesian springs. Guarding the springs hastened the demise of the Comanche, the Lipan, the Mesalero and every other band of nomads. That allowed Anglo settlement, but not an end to fighting over water. When Pecos County was organized in 1875, its first legal case was a dispute over water rights. By that time, more than 6,000 acres in the desert were being cultivated thanks to irrigation water that flowed by gravity from the springs. Because of water, Fort Stockton thrived, becoming a major stop on the southern transcontinental railroad and a place to rest and refuel on major highway routes linking Florida to California and Mexico to Canada. Because of water, 108 families north and east of town lived on farms. They formed a water district so that the water could be dispersed equitably through an intricate network of canals and sluice gates. Grapes, apples, pecans and alfalfa flourished in this 9-square-mile Garden of Eden. People floated in inner tubes along the canals for up to 15 miles away from town. Visitors came to swim in the springs and picnic under giant cottonwoods along the Imperial Highway. The town’s biggest social event was the Comanche Springs Water Carnival, established in 1936 to commemorate Texas’ centennial. Two years later, an elaborate, open-air pavilion was constructed around the pool to better showcase the pure, 72-degree water. That was until 1951, when the Water Carnival was It doesn’t take a military strategist to know that the best way to subjugate someone is to take away their water. LEARN more about Texas groundwater at txlo.com/ grndwater BY 2040, CITIES WILL SURPASS AGRICULTURE AS THE LARGEST USER OF WATER. ABOUT 80 PERCENT OF ALL GROUNDWATER USED IN TEXAS IS FOR IRRIGATING CROPS. JUNE 25, 2010 THE TEXAS OBSERVER 11
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