Fort Stockton vs. Claytie

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, says 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 to cling to their rights to local supplies. In the balance hangs the health of the Rio Grande, which is already 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 due to low water levels.

Williams wants to draw more than 47,000 acre-feet of water annually from the watershed. An acre–foot 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 earlier 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 & Kilgore. The conservation district is currently considering an amended application.

Williams already 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 current 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 Jr. 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 Jr. 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.

“The Guitar case stands for the proposition that, just because Mr. Williams has the right to produce 46,000 acre-feet for irrigation purposes, that does not mean he has the right to convert that amount to some new use,” Johnson said.

It is ultimately up to the Middle Pecos Groundwater Conservation District to approve or reject the permit. But Castro argues that because the surface waters of the Rio Grande are governed by the Treaty of Feb. 3, 1944, which is overseen by the International Boundary and Water Commission in El Paso, the federal government should consider intervening in the dispute.

“We think there are higher laws that should be in consideration here. The Environmental Protection Agency should look into this because this is the future,” he said. “Our thought is, the growth should be where the water is. The water shouldn’t be moved where you want the growth. That’s where Texas is going to get into trouble.”

Castro has written the international water commission and four border congressmen: U.S. Reps. Henry Cuellar, D-Laredo; Solomon Ortiz, D-Corpus Christi; Silvestre Reyes, D-El Paso; and Ciro Rodriguez, D-San Antonio. The IBWC acknowledged receipt of the letter, but commission spokeswoman Sally Spener declined to comment in detail, saying the agency has yet to respond its claims.

Ortiz called it a state issue, as did Rodriguez’s office, which added that his staff “is definitely monitoring the issue and have always been in regular contact with the IBWC local officials on the matter.”

Cuellar’s staff said he, too, has contacted the IBWC, the office of Gov. Rick Perry and the RGISC and will continue monitoring the situation.

Castro has also reached out to the Texas Water Development Board, the U.S. Department of the Interior, the U.S. Fish and Wildlife Department, the Army Corps of Engineers, the Texas Parks and Wildlife, the Council on Environmental Quality – Office of the White House, the Texas Commission on Environmental Quality and a host of state senators and representatives.

“Nobody has stepped up to the plate. Nobody has foreseen this. Nobody is dealing with this directly,” he said. “There are millions of people downriver from him. Once they know, [they] are going to have more power than he ever imagined.”