They've been saying it in Texas since the first Anglo planters dug their crude canals for pecan trees: Whiskey is for drinkin'; water is for fightin'. Except that even then the canard rang hollow: Water is for stealing. In the 1860s, U.S. troops drove native tribes off their eons-old oasis, Comanche Springs, enabling settlers to transform the Chihuahuan Desert into a delta of produce farms. A compact was struck among the Panhandle's growers to share the water fairly among each other. But in Texas, "common interest" is happy talk for socialism and never stands the test of avarice.
In the 1950s, along came Clayton Williams, an oil and cow magnate who dug dozens of gas-fired wells on his ranch and drew all the water out of Comanche Springs. His neighbors, rightly outraged, sued in three courts – and lost to him each time in landmark trials. The courts said Williams owned every last drop he could suck from the caves beneath his soil, and tough luck for his fellow landsmen with shorter straws. That law, called "rule of capture," defines Texas' approach to problem solving. It honors the state's right to control its surface water, but grants absolute ownership of below-ground water to whoever owns the land above it. The owner of that water can largely do what he likes – hoard it, waste it, or sell it at profit – even if it bankrupts his next-door neighbor and tanks the ecology of his county.
Williams' win was great news for tycoons and oil extractors, exalting the claims of the big ranch owner over the greater good of his townsfolk. Sixty years later, when surface water is dying and Texas can't support the population it has, let alone the people still coming, it has emboldened a new cast of cutthroat investors, including Clayton Williams' son, Clayton Jr. Claytie, as he's called, is an oil-and-gas scion who could easily have been invented by Molly Ivins. In 1990, he ran for governor and was ahead by double digits in all the polls. Then he wisecracked that women being raped should "just relax and enjoy it."
Like his father, he's monopolized the springs in Pecos County, pumping 41 million gallons a day to water his cattle and telling a reporter, "It's my land, and I have the right... If I didn't pump water, [the land] wouldn't be worth anything."
In 2010, he decided to double down, making a deal with a utility company in Midland, Texas – his firm would build pipelines to send Pecos County water 100 miles away to that booming oil town. Shortly thereafter, oil tycoon T. Boone Pickens struck a deal to pipe groundwater, for $103 million, to 11 cities, including Lubbock and Amarillo, replacing the depleted Lake Meredith. Like Williams, Pickens drew from a depleted source: the Ogallala Aquifer in West Texas, which sat below land he owned or to which he leased the water rights. One of the world's great underground bodies, it irrigates crops in eight states, brings drinking water to millions, and, for decades, was presumed to be boundless. But in Texas, the drain has been so rapacious that levels in the Ogallala have dipped hundreds of feet, bottoming out completely in shallow sections.
To stem some of the damage done by the rule of capture, and to protect the state's reserves from men like Williams, Texas created local groundwater boards to regulate sales to outside parties. In Williams' case, the system worked: His deal was voted down by the county board. Not so with Pickens and his Mesa Water holdings, which won local board approval to sell water to the 11 cities. Pickens made out grandly at the expense of the Ogallala, while hiking up future water costs for residents; groundwater is much more expensive than surface water, as it must be pumped farther and treated twice, not once. "It'll be on your water bill and mine," said Norman Wright, chairman of the Canadian River Water Authority, which struck the deal on behalf of the 11 municipalities and took out bonds to pay Pickens' price.
Though Pickens had hoped for a far more lucrative strike – his real target was the Dallas–Fort Worth nexus and its 7 million total residents, but the costs of piping water there proved too great – he'd written the game plan for future investors. Lease the water rights to farms you don't own, bundle that water to fast-growing cities from Dallas to San Antonio, then bulldoze the groundwater boards with top-shelf lawyers and pay for studies "proving" your claim that the aquifer won't be tapped by your withdrawals. In other states, progressive politicians could be called on to fight such stunts.
But in Texas, there is no opposition party. "Democrats are the same as Republicans here; they're all in bed with developers," says Linda Curtis, who runs the Texas League of Independent Voters, a coalition fighting the Keystone Pipeline and the ravages of sprawl on state resources. She says people like herself and her green-shoots cohort of hydrologists, lawyers, and Sierra Club types are the only ones fighting Perry's growth machine on behalf of small towns. She and her group were key players in the defeat of the governor's grandest ambition, a grid of superhighways called the Trans-Texas Corridor that would have cost Texans billions in tolls collected and put much of that money into the pockets of his contributors – the road-building and construction lobbies. Now Curtis' focus is on the water fight brewing mere miles from her house in Bastrop, a town of 7,000 that's a half-hour's drive from Austin. For Curtis and her neighbors, the politics are personal, and the stakes could not be higher.
Now abandoned, Carlos'n'Charlie's was a lively shoreside party spot on Lake Travis.
"If you look to your right, you'll see how close we all came to being burned off the face of the map," she says, driving north on Highway 21, which zigzags across Bastrop State Park. "Labor Day weekend, 2011, this whole forest went up in smoke, ate 5,000 acres and 1,600 homes. And if the wind had shifted just the slightest bit, mine would've gone up with them." Record heat and dryness had turned the pine trees into pipe bombs; the resin in their pulp literally exploded when lit by flame, kindling the worst fire in state annals.
"Climate change and drought – those aren't just concepts; we're living them every day in Bastrop County."
Like most of her neighbors in this brown-collar town of mechanics and landscape workers, Curtis gets her water from Aqua Water Supply Corporation, a local utility with shallow wells that pull groundwater from the Colorado River. But the source of some of that water is actually treated sewage flowing downstream from Austin. It contains enough iron to clog Bastrop's wells, and enough estrogen from excreted birth-control pills to cause horrid mutations in frogs and fish.
"We've got quite a bunch of six-legged toads," says Phil Cook, a senior water expert who recently retired from Sierra Club Texas. "Bastrop's dirty secret is that it treats water for iron, but not estrogen and other drug compounds. That'd be way too expensive for their small system."
Understandably, then, the town went looking for other sources, and found a sweet one beneath its feet in the Carrizo-Wilcox. The aquifer, which begins in Louisiana and drains southwest across Texas to the Gulf, has enormous reserves in deep-diving strata, which drop 2,000 feet below the soil. Bastrop signed a contract to pump a tiny portion of the Carrizo from beneath the land of a nearby ranch, and presented its request to the Lost Pines District, the groundwater board in its county. The deal – for 6,000 acre-feet of water a year, or enough to serve 20,000 people – would have been granted without objection in other years. Suddenly, though, Bastrop found itself in line behind claims brought by End Op and Forestar, the equity firms with grand designs on Bastrop County's water. Between them, they demanded permits to pump 101,000 acre-feet (enough to serve the needs of 400,000 people) and pipe that water to counties south and west, to the rich, booming suburbs of Austin.
"Outrageous," seethes Curtis, who mobilized her neighbors, bringing large crowds out for public hearings. "You pull that much water, and our local wells won't reach it. We'll be sucking dry pipes while they get rich."
Last year, Lost Pines sided with Curtis, granting the companies just a quarter of what they'd sought.
"I thought that was fair," says a water consultant who represents outfits like Forestar, though not in this case. "Sometimes the amounts they want are scary – and those board members have neighbors they have to face."
But following the Pickens playbook, both firms protested, going for a hearing before a judge. The judge ruled for Lost Pines in the Forestar claim, saying the board was simply doing its job. Infuriated, Forestar launched the nuclear option: filing a civil lawsuit in district court against the Lost Pines board and its members.
"Under the takings claim – that Lost Pines deprived Forestar of earnings from that water – the company is demanding damages equal to that loss from each of the 10 people on that board," says Cook. "These are middle-class folks who don't get paid to do this job and here they suddenly stand to lose their life savings in multimillion-dollar judgments. Forestar may be vicious, but it's not stupid. If I were a member, I'd give 'em what they asked for, then resign my seat in a second."
To defend itself in the likely years-long war against an army of $800-an-hour lawyers, the board has built a fund of roughly $1 million, which might see it through one trial and a round of appeals. It has no money to hire lawyers for its members, though, which leaves them on their own against deep pockets.
"Even if the county stepped in to pay their fees, Forestar's set the precedent for these fights," says Cook. "It's 'Give us what we want, or we'll make your lives hell – and we've got the money to do it.' "
Indeed, most observers think the end is near: The big-foot firms will eventually squash the rural boards and appropriate their water for urban clients. According to the latest survey by Forbes, three of the 10 fastest-growing cities in America are in the state of Texas, and those cities have the votes and rate-payer bases to create a supermatrix of water. Last fall, Perry's backers pushed through Proposition 6, a $2 billion fund to start digging for pipelines, among other projects. That money is mere pocket change tossed in the fountain: Perry's Water Development Board plans $50 billion in spending to bring water to users, and most of it won't be falling from the sky.
"This is the new normal for Texas weather, so access to groundwater is essential," says the water consultant, who thinks equity firms should be honored for their vision, not feared as resource raiders. "People don't want to spend any money – they want to use conservation. But in a state that's as rich as most other countries, there's a point when you have to build projects."
But even with new pipelines, local boards will have to compete with water brokers for what resources remain. As the city of Bastrop recently learned, the power to control water is shifting already: Its request for 6,000 acre-feet a year has been blocked by Forestar's lawyers. The company has threatened to sue anyone whose permit is granted before it gets its full allotment. Bastrop's children, then, will have to go on drinking water bearing the hormonal waste of Austin's women. That's horrid publicity, but Forestar's flacks can spin it: Hey, at least you're not living in Wichita Falls.