POSTED: 1:30 a.m. HST, Mar 17, 2014
MUMFORD, Texas » Across the parched American West, the long drought has set off a series of fierce legal and political battles over who controls an increasingly dear treasure - water.
Just outside this minuscule farm town, Frank DeStefano was feeding a 500-acre cotton crop with water from the Brazos River 16 months ago when state regulators told him and hundreds of others on the river to shut down their pumps. A sprawling petrochemical complex at the junction of the Brazos and the Gulf of Mexico held senior rights to the river's water - and with the Brazos shriveled, it had run short.
State regulators ordered DeStefano and others with lesser rights to make up the deficit. But they gave cities and power plants along the Brazos a pass, concluding that public health and safety overrode the farmers' own water rights.
Now DeStefano and other farmers are in court, arguing that the state is wrong - and so far, they are winning.
"I understand cities need water, people need water, but it kind of gets to me how agriculture is pushed to the back of the line," he said. "We're on pins and needles wondering when the next call is going to be made. It's hard enough to make a living without things like this."
Residents of the arid West have always scrapped over water. But years of persistent drought are now intensifying those struggles, and the explosive growth - and thirst - of Western cities and suburbs is raising their stakes to an entirely new level.
In southern Texas, along the Gulf Coast southwest of Houston, the state has cut off deliveries of river water to rice farmers for three years to sustain reservoirs that supply booming Austin, about 100 miles upstream. In Nevada, a coalition ranging from environmentalists to the Utah League of Women Voters filed federal lawsuits last month seeking to block a pipeline that would supply Las Vegas with groundwater from an aquifer straddling the Nevada-Utah border.
In Colorado, officials in the largely rural west slope of the Rocky Mountains are imposing stiff restrictions on requests to ship water across the mountains to Denver and the rest of the state's populous eastern half. Fearing for their existence, Colorado farm towns on the Arkansas River have mobilized to block sales of local water rights to Denver's fast-growing suburbs.
In Arizona, activists and the federal government are fighting plans to tap groundwater used by a massive housing development - a move that would reduce the water level of a protected river. Kansas accuses Colorado and Nebraska of allowing their farmers to divert Kansas' share of the Republican River, which flows through all three states. A similar dispute between New Mexico and Texas is before the U.S. Supreme Court.
California, in the midst of a historic drought, so far has witnessed but a few local skirmishes. In January, environmentalists and sports fishermen sued to halt the drilling of hundreds of new groundwater wells sought by Central Valley farmers, saying more pumping would lower stream levels.
That may not last long, said Stuart Somach, a Sacramento water-rights lawyer. California farmers have long grumbled about big-city designs on their water; Northern California has long grumbled about being the spigot that supplies most of the water to the dry south.
"We're very close to the time that people are going to start staking out rights. We're right at the cusp," Somach said. "If this drought persists, depending on how state and federal agencies react, you're going to get some real conflicts going."
Actually, the laws that govern most of the West's water seem tailor-made for fighting.
In many places, the rules for owning or using groundwater are still in flux: In Texas, landowners own the groundwater beneath their property, but a neighbor pumping groundwater from the same aquifer can siphon it away without penalty. The Arizona court battle over a proposed housing development hinges on the still-murky question of whether the state can allow the builder to pump groundwater that sustains a river that is under federal control.
In contrast, the prevailing law on rivers and streams is all too clear: The earlier someone stakes a claim on a stretch of water, the more bulletproof that owner's right to it.
"If you've got the oldest claim on that river, you get to use that water regardless of what you're using it for - agriculture, industry, whatever," said Gabriel Eckstein, a professor at Texas A&M University School of Law and a lawyer with Sullivan and Worcester. "That's regardless of whether you're doing it efficiently, regardless of whether it's the highest use."
In the rural West of days past, when even arid climes held enough water for everyone, that principle worked well. In the booming West of today, it is increasingly a recipe for conflict.
The Lower Colorado River Authority in Texas decided last month to cut off water deliveries to rice farmers after concluding that two reservoirs supplying Austin and other upstream towns were dangerously low - at about 38 percent of capacity. The farmers had no recourse, because they had no water rights: They had sold them to the authority decades ago.
The cutoff nevertheless has come to underscore the tinderbox relationship between the state's rural past and its urban future. At a packed hearing before an administrative law judge last month, farmers and others downstream complained that they were surrendering their water while Austin residents continued to wash their cars, groom golf courses and water their lawns, albeit only once a week under water-saving restrictions.
Urbanites argue that drinking-water reservoirs were not intended to irrigate farms, a point the farmers contest, and that recreational businesses along the reservoirs are going bankrupt. A town on one of the reservoirs, Lake Travis, has to truck in water to keep taps flowing, they say.
"The tensions exist in every river basin in the state," Jason Hill, a water-rights lawyer now representing the Texas city of San Angelo in another rights dispute, said. "You don't really know the value of something until you run out of it and know you want it again. And water has historically been an underappreciated resource."
Across Texas, as in Austin, rural interests clearly are waging a rear-guard battle. The Texas Water Development Board, the state's planning agency, figures that cities' demand for water will rise nearly 75 percent by 2060, while the use water for irrigation will decline by 17 percent. By then, cities - not farmers - will be the dominant consumers of water.
But the farmers are not giving up without a fight.
In 2011, the Texas Legislature gave a nod to that shifting priority, authorizing the state's Commission on Environmental Quality to suspend water rights in emergencies like droughts. While the commission still had to allot water to rights holders in order of seniority, the Legislature said, it also could consider - as much as was practical - how that water was being used before ordering a rights holder's pumps shut off.
A year later, when drought left the Dow Chemical Co.'s Freeport petrochemical plant short of Brazos River water, the company asked the commission to honor its 83-year-old water rights and to order more recent users to make up its shortage.
And the commission did - but only after deciding that 66 Texas towns and electric utilities should be exempted from a cutoff for health and safety reasons, even though hundreds of farmers and others who lost their water held more senior rights. Indeed, court documents state, the exempted towns and utilities held rights to 96 percent of the water affected by Dow's claim. The remaining 4 percent, mostly farmers like De Stefano, lost all right to irrigate their crops until the suspension ended several weeks later.
In the ensuing lawsuit, DeStefano and others argued that the commission could not pick winners and losers when enforcing water rights enshrined in law. "State law says that first in time, first in right. That means what it says," said Joshua Katz, an Austin lawyer representing the farmers' interest. Prudent cities, he said, do what prudent farmers do to brace for drought: They buy more senior water rights.
A trial court sided last year with the farmers, and the case is on appeal. But should the region's drought not let up, people here say, further lawsuits in Texas and across the West are all but inevitable.
"It truly is a good time to be a water attorney in Texas," said Hill, the lawyer in San Angelo dispute. "There's work here as far as the eye can see."
Michael Wines, New York Times