August 2001
Boone Pickens Wants To Sell You His Water
And you’re going to need it, eventually, since Texas’ most precious natural resource is being depleted at an alarming rate. His plan is to pump vast amounts from his land in the Panhandle and pipe it to parched cities like El Paso and San Antonio—for a hefty price, of course. But other powerful interests have the same idea. Let the battle begin.
Boone Pickens: He made his name as an oil tycoon and a feared corporate raider.
Photograph by Wyatt McSpadden
“Look! Look down there!” Boone Pickens leans across the narrow aisle, pointing toward a window of his corporate jet as it banks over the rolling plains of the Panhandle on its final approach to Pampa. “There’s where the water fields will be,” he says, motioning beyond the wing. “And that’s where my place is.” He moves his finger ever so slightly to the right to identify the Mesa Vista Ranch.
That Pickens sees water, and not some traditionally exploitable mineral like oil or manganese, on those dry plains speaks volumes about what sort of havoc a booming population is wreaking in the state of Texas. He has what he says is a simple plan: He’s going to pump the water that lies under the more than 150,000 acres of land he either owns or controls in Roberts County, seventy miles northeast of Amarillo. And then he’s going to sell it to cities like San Antonio and El Paso that are running out of water. The water lies several hundred feet below the surface. It is part of the Ogallala Aquifer, a vast underground reservoir that stretches from the High Plains of Texas all the way to the Dakotas. The Ogallala is the largest single groundwater source in the United States.
The reason that the former oil tycoon and corporate raider is able to treat this water like a marketable commodity—just like oil and natural gas—is because Texas law says he can. Though surface water belongs to the state, a landowner can pump whatever water he finds below the land. It’s called the rule of capture. He can pump as much as he wishes and sell it to whoever wants it, wherever they are, no matter if he dries up his own water and his neighbors’ water along with it. And that’s the problem. The more Pickens pumps, the more he threatens to deplete the Ogallala, which in 1998 produced 66.7 percent of all the groundwater used in the state. By exercising his rights, he is also prompting other property owners to use up a waning resource as fast as they can. He may well be starting the last great water war in Texas. The danger is obvious and confirmed by historical precedent: When water is pumped to the point that it becomes too expensive to pump deeper, the Panhandle will run dry and become depopulated.
Pickens says he has no choice but to pump the aquifer. What he means is that if he doesn’t do it, someone else will, in effect, rustle his water. So he’s got to pump now. He’s hoping to find enough customers along one of three pipelines he’s considering building to either Fort WorthDallas, San Antonio, or El Paso.
He has already got plenty of competition. His most immediate competitor is the Canadian River Municipal Water Authority, which Pickens says spurred him to action when it bought 42,765 acres to develop a water field near his land four years ago. In the fall the water authority will begin pumping and moving the water some 35 miles west to Lake Meredith, which provides water to eleven Panhandle communities, including Amarillo and Lubbock.
Pickens has other rivals as well. Two years ago the City of Amarillo bought a 71,000-acre spread adjacent to Pickens’ Mesa Vista Ranch to mine water, though officials say they won’t start pumping for another 25 years. A fourth water exporting group, with 190,000 acres under option, was formed last year by Amarillo lawyer Ronald Nickum. Pickens complains that at some point those straws will drain his own reserves. If he holds back, his land loses value. “I sure can’t wait twenty-five years,” he says.
How serious a threat is unregulated water mining to the Panhandle? To see what happens after the profits have been made and the water is all gone, consider two Panhandle counties west of Roberts, Dallam and Hartley. Irrigated farming there in the past fifty years has been so intense that most of the Ogallala has been drawn down below the point where it is economical to pump the water out. Some farmers have reverted to so-called dryland techniques, relying on the region’s scant rainfall. Others simply left. Or look at Carson County, which is just southwest of Roberts County. Thirty years ago it had a booming farm economy. There were two farm-equipment dealers and two automobile dealerships. But the economy was based on irrigation farming, which caused the groundwater to dry up. Today, one farm-equipment dealer struggles on and there is no new-car dealership.
But the Panhandle is not the only place that’s going dry. Last summer Jacob’s Well, a massive landmark spring near the Hill Country town of Wimberley, stopped flowing for the first time in recorded history. It had continued bubbling through the great drought of the fifties without pause. But back then golf courses and shopping malls and thousands of newcomers on subdivided ranches weren’t sucking the aquifer dry. Wimberley must now deal, one way or another, with the effects of unregulated pumping. The town of Throckmorton in North Texas pumped its own nearby lake dry and was forced to build a fifteen-mile pipeline to a line that served the town of Graham. The community of Blanco, near Austin, which takes its water from the river of the same name, simply ran out. Water had to be trucked in. This past winter the Rio Grande dried up before it reached the Gulf of Mexico. Too many towns and cities and too many farmers on both sides of the border had pumped too much of it. The United States says Mexico owes us water, but there is no water to give. Upstream, the once-massive International Falcon Reservoir is filled to less than 20 percent of its capacity. It is so low that the old Mexican town of Guerrero, which was submerged when the lake was filled in 1954, has reappeared. Even Houston, notorious for having too much water lately, is constantly fighting a phenomenon called subsidence—in which the ground level sinks—caused by water being pumped from under the surface.
In the water business the rule of thumb is that no one really cares about supplies until the moment he turns on his faucet and nothing comes out. That hasn’t happened yet. But the simple fact is that escalating growth is placing enormous demands on rivers, creeks, springs, and lakes, and stressing already overused aquifers such as the Ogallala and the Edwards. These demands are not, in the long run, sustainable. Groundwater, the source of more than half the water Texans currently use, is being depleted so rapidly that it can supply no more than 20 percent of the state’s needs over the next fifty years, forcing almost every big city to do what Los Angeles did almost a hundred years ago—find water somewhere else, even if it means drying up a distant farming community. When water mining and water exportation kick in, and your water bill starts multiplying as many times as the market allows—if you can get the water—you may have cause to look a whole lot closer at what Boone Pickens wants to do in Roberts County.
Texas is the only western state whose groundwater use is defined by rule of capture. The law was upheld by a 1904 Texas Supreme Court ruling that groundwater’s properties are “too secret, occult, and concealed” to establish a set of rules regulating its use. The rule actually worked for the first 150 years of statehood with a minimum of violence, murder, and corruption. A 1949 law and enough instances when the civic wells ran dry in the fifties inspired the creation of numerous groundwater districts across the state, particularly in the Panhandle and West Texas. (They included the Panhandle Groundwater Conservation District, formed in 1955 to oversee the pumping of the Ogallala.) The basic idea was to set up a public body to protect farmers against other farmers taking more than their fair share. Each district oversees a specific underground reservoir and can regulate and monitor its use. But their regulatory power has seldom been tested in the courts, and experts say it is highly unlikely that they could prevent a landowner like Pickens from pumping.
In Texas, rule of capture is considered so sacred and such a cornerstone of property rights, that the Legislature has never mustered the political courage to overturn the law. In 1997 it came as close as it could, passing Senate Bill 1, a landmark piece of water legislation that created sixteen regions in Texas and required them to come up with plans to ensure groundwater supplies for the next fifty years. It was a nice idea, but the rule of capture still trumps groundwater districts, as affirmed last year by the Texas Supreme Court. The court upheld the Ozarka Water Company’s right to capture water under its property and bottle it, throwing out a lawsuit filed by neighboring East Texas landowners who claimed their wells, creeks, and streams were running dry thanks to Ozarka. SB 1 also made possible the transfer of water from one river basin to another, which solved critical water-planning issues for San Antonio and Corpus Christi. But that also opened the door for water to be pumped and piped from anywhere in Texas. This caught the attention of people with experience in extracting a resource from the ground and making money from it.
What those people—Pickens among them—want to do is little different from what many others are already doing. Ozarka is tapping its spring in East Texas. In Central Texas corporate giant Alcoa threatens to deplete its neighbors’ water tables by selling groundwater to San Antonio. In Buda, south of Austin, T. J. Higginbotham, a resident with 49 acres, has applied for a permit to pump fifty million gallons, about half of what the rest of Buda currently uses, to sell it to developers who are building subdivisions nearby. Wannabes include forestry giant Temple-Inland, the largest landowner in East Texas; the O’Connor ranching dynasty of Victoria; and numerous farmers along the Rio Grande.
Of course, all that potential pumping at some point bumps up against the state’s new water law. In accordance with SB 1, the Panhandle Groundwater Conservation District set a goal to take no more than 50 percent of what’s left in the Ogallala Aquifer in Roberts County over the next fifty years. In theory, it’s a good idea. But hydrologists say that if all four of the current competing groups in the county pump at the same time, their simultaneous withdrawal would exceed the allowable rate of depletion. If that happens, the district will have to slap restrictions on pumping, which starts to sound a lot like a water war.
