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Water Wars

How growing demand, fuzzy legal rulings and plain old stubbornness have turned Kinney County into a hotbed of water politics.

By Joe Nick Patoski

Unless you frequently travel U.S. Highway 90 between San Antonio and Del Rio, you probably don’t know where Kinney County is. Depending who you talk with, the Kinney County Groundwater Conservation District is either the poster child for how not to manage groundwater, or the last best defense for rural areas fighting big cities that covet their water.

The sparsely populated county is located in that transition zone between the Edwards Plateau and the South Texas Brush Country on the edge of the Chihuahuan desert. Brackettville, the county seat and largest town, with a population just shy of 2,000, is directly across the highway from one of Kinney County’s natural treasures, Las Moras Springs, the ninth-largest group of springs in Texas, which discharge about 160 gallons of water a second. Fort Clark, which was built around the springs by the U.S. Army in 1852, thrives today as a gated residential community.

In 1959, Brackettville became famous as the location where the major motion picture, The Alamo starring John Wayne, was filmed. The movie set was preserved by landowner Happy Shahan and promoted as a tourist attraction called Alamo Village. But a couple of years before the movie was filmed, something more significant happened in Kinney County. While drilling an exploratory well northwest of town in search of oil, drillers hit water. So much water that when Senate Bill 1 — the landmark water legislation mandating that all regions of Texas secure water supplies for the next 50 years — was passed in 1997, Kinney County came into play.

The abundance of groundwater, the county’s small population, the growing demands of thirsty cities and Texas water law have made Kinney County ground zero in Texas’ water wars, as water marketers, legislators, attorneys and lobbyists grapple with the new local groundwater district over how much, if any, water can be pumped and sold outside the county without impacting water supplies, springs, creeks and streams inside the county.

From all outward appearances, the February 22, 2005, meeting of the board of directors of the Kinney County Groundwater Conservation District at the Kinney County Courthouse in Brackettville is perfunctorily bureaucratic — board members and the general manager gather around a table to discuss audits, groundwater availability models, recharge numbers, well violations, management zones and a newsletter. The language bandied about is as complex as the aquifers the board is charged with overseeing — the Kinney County portion of the Edwards Aquifer, the Edwards-Trinity zone and the Austin Chalk zone — all of which lack definite boundaries separating one aquifer from the other.

But that only partially explains the tension in the room, which emanates from 11 people sitting in the gallery separated from the board by a railing. They represent the interests of those in Kinney County who want to sell their water. One holds an audio recorder, another a video camera to record the proceedings. From the comments overheard in the hallway during a break, they are a frustrated bunch. They felt that the board was ignoring allocations recommended by Steve Walthour, the hydrologist hired by the board to advise them on pumping permits. Board member Christopher Ring’s family corporation got more water than Walthour recommended; almost everyone else got far less than what they asked for. Allocations were based on land acreage, not on hydrology. They said board members had spread fear among voters that the county’s water was going to be stolen, in order to assure election of five of six board members opposed to moving water out of the county. The board refused the offer by WaterTexas, which most of the folks in the gallery were aligned with, to pay for a study of available groundwater. They even alleged that General Manager Darlene Shahan was working with her husband, Tully Shahan, the county attorney, to thwart their interests.

After the meeting, I head east to Hugh and Dennette Coates’ place in the Anacacho Mountains, where Hugh Coates loads me up with legal briefs and talks about the Pinto Valley farmland he bought in 1988. “We have big water there, shoots straight to the ground. Never has been a pump that’s sucked air in that valley,” he says. And yet, the groundwater district just allotted him less than one third of what the board’s consultant recommended. “It’s like coming to your house and saying, ‘You can have one bath a month,’ ” Coates complains.

Some of the other folks attending the groundwater district board meeting show up at the Coates’, too: Jewel Robinson, the publisher of The Brackett News and a Pinto Valley landowner who has applied for a pumping permit not to sell water, she says, but to assure flow in the creek that “means so much to me”; her son Wesley; Beth Ann Smith, the groundwater district board member who typically casts the lone dissenting vote in board matters; her husband, Richard Smith; Tony Frerich, the co-owner of Kinney County Wool & Mohair; Jennifer McDaniel, who works at the wool house, and her husband, Jim McDaniel, the last cotton farmer in the county.

Over a sumptuous spread of real South Texas Mexican food, they detail the unpleasantness that’s been visited upon them since the city of Eagle Pass first approached several of them eight years ago to see if they’d be interested in selling their water. Their willingness to sell has run headfirst into a board that they say is unwilling to compromise but keeps changing the rules anyway. The pumping caps set by the board are arbitrary, they say. Allocation of such measly percentages amounts to a property rights “taking” (in a legal context, “taking” refers to a government action assuming ownership of real property by eminent domain). They believe that anyone on Pinto Creek downstream from the Shahans and the Rings is getting shorted. Jim McDaniel, the farmer, got 41 percent of what he asked for and will have to go back to the board in July for more water in order to finish his crop. Still, he admits, if he ever gets the permitted amount he seeks, he’s inclined to sell his water and get out of farming altogether. Things have gotten so ugly, Dennette Coates relates, “They’re telling us not to eat in a particular restaurant; they’ll spit in your food.”

I’d heard a whole other story earlier in the day in Tully Shahan’s law office across the street from the county courthouse. Tully Shahan is the county attorney. His wife, Darlene Shahan, is the general manager of the groundwater district. Both have been instrumental in forming the groundwater district and leading the fight against exporting water from the county. The way the Shahans tell it, approximately two-thirds of permit applicants were trying to thwart the will of the county’s voters who elected the groundwater district members. Every sitting board member was reelected despite opposition, they point out. By going to state legislators and lobbyists, filing lawsuits and seeking to have the district dissolved, a tyranny of the few was destroying the board’s good work, or at least bankrupting it through costly legal fees.

“Eight tenths of one percent of county property is irrigated,” Tully Shahan says, “and the irrigators are trying to tell us what to do with 100 percent of the water.”

The water purveyors have lobbyists, they say. The district can’t afford one. “We have the highest tax rate and lowest budget of anyone out there,” says Darlene Shahan. “We are very limited in what we can do as a district. More than two-thirds of the current budget is being absorbed by legal and consulting fees.”

Tully Shahan produces an interim report by Senator Ken Armbrister, the chair of the Senate Select Committee on Water Policy, issued before the Legislature convened last January. It proposes dissolving the Kinney County Groundwater District and bringing the county under the jurisdiction of the Edwards Aquifer Authority. the legislation introduced to accomplish this goal is HB 3571 (sponsored by Rep. Robert Puente) and SB 1857 (sponsored by Sen. Frank Madla). The move would leave the county without representation and cost the town of Brackettville at least $24,000 a year for water it is now getting for free, Tully Shahan contends. He pulls out another newspaper clipping that quotes Armbrister as saying the 1904 State Supreme Court decision on Rule of Capture is not in the Texas Constitution.

Darlene Shahan insists the district is doing what the Legislature intended — protecting existing water supplies and users before allocating pumping permits. “Why did we enter into hearings in August, spend money on technical studies, give people an open forum and due process?” she asks. “One hearing was 13 hours. [Water sellers are] saying that we were going to rubber stamp the hydrologist’s findings. If that was the case, the board wouldn’t have sat through those hearings. The water sellers just don’t like how the board is interpreting the rules. The board is doing their best to protect the water according to Chapter 36 of the Texas Water Code and the local rules. We’re being as conservative as we can.”

To illustrate why the board is taking the cautious approach, Tully Shahan drives me out of town to the family ranch, a 16,000-acre spread just north of Brackettville, where the headwaters of Pinto Creek are located. He takes a modified golf cart through a pasture down to the rough creek bottom where the creek emerges out of a rocky outcropping and runs pure and shallow through the oak scrub. The cart scoots up over and around limestone gravel shoals to a perch overlooking a small tributary of the creek. A few stone skips away, bubbles float to the surface marking the main spring. The creek bottom, fully visible, shimmers with a pale blue tinge of purity.

Shahan then drives to another spot near a fence line. On the other side are wells that were drilled in the early 1960s that immediately dried up six wells on his family’s land, forcing him to drill new wells at considerable expense. The direct cause-and-effect have given him pause ever since, he says.

A little after eight the next morning, I meet Zack Davis at the Davis Hardware Store and Ranch Supply in downtown Brackettville. Davis, a tall, jut-jawed Kinney County native like Tully Shahan, is taking me to his farm in the Pinto Valley, about 5 miles northwest of town and about 20 creek miles upstream of the Rio Grande. Like most folks in the county, Davis wears many hats — veterinarian, farmer, rancher, former small businessman (after 26 years, he sold his store), husband of a pharmacist, father to six kids.

Pinto Valley is a small 4-mile-by-1-mile basin along Pinto Creek that is locally known as the “honey hole,” Davis explains, an exceptionally abundant source of recharged groundwater where most of the county’s irrigated farming occurs, marked by an almost straight line of artesian wells that run down the valley. Land within a mile yields no water at all. “I had a hydrologist out here once who’d studied this area,” he says. “He told me this solved a mystery — now he knew where all the runoff in Edwards and Real counties up on the Edwards Plateau went.”

After the bounty of water below was discovered in 1957, the Pinto Valley was intensively farmed for vegetables over the next 25 years. Buildings that once housed packing sheds and loading docks speak of that brief period when one-third of the nation’s cabbage and a good chunk of America’s onions were raised in Pinto Valley. But by the 1980s, economics prompted farmers to switch to livestock feed crops such as sorghum, oats, millet, Bermuda grass and alfalfa.

Even with more than enough water, farming and ranching are dicey propositions, acknowledges Davis. “There’s five to 10 percent of the livestock that there was in 1978. If we didn’t have hunting in this county, you could turn the lights out.” In fact, the hunting economy in Kinney County generates more dollars today than farming and ranching combined.

He drives his truck over a fresh field of oats, scanning the sheep and cattle grazing on the bright green cover to spot any legs sticking out of the furrows. Some sheep fall asleep while grazing and fall into a furrow and can’t get up, Davis explains. He finds several and puts them upright.

He stops to demonstrate just how much water there is in the honey hole. Using a large wrench to open a valve in a tangle of pipes, he unleashes a torrent of cool, clear water that shoots out of the pipe with enough force to knock a person down. That sort of abundance, along with queries from Eagle Pass, then Laredo, prompted Davis to organize farmers interested in selling water rather than using it to farm. His search eventually led to WaterTexas, an Austin-based company hired to represent the sellers’ interests. Ironically, one of the first things WaterTexas’ Dan Pearson told Davis was that Kinney County needed a groundwater district before exportation could begin.

Selling water is a higher, better use of the resource, Davis says. “If City X comes in and says they’ll pay me more than what I’m making on this, what am I going to do?” Davis asks. “Over in Uvalde, they built a Wal-Mart on prime farmland. This water is no different. It’s taking a different value than if we farm it. This water getting valuable isn’t my idea. It’s something that happened. It still has to be a managed, regulated resource.”

He still believes in the concept of groundwater districts, just as he believes in the Rule of Capture. “The Edwards Aquifer Authority scares me like it did 12 years ago [when the county successfully petitioned to be left out of the EAA’s jurisdiction]. At the same time, it can’t be any worse than what we have now.”

Davis sat on the groundwater district board until he resigned out of frustration and still sits on the board of the Plateau Region J regional water planning group along with Tully Shahan; the group oversees water planning in a zone that runs roughly between Del Rio and Kerrville. He views the Shahans and the Rings as co-conspirators bent on pressuring smaller landowners downstream like himself. “We feel like they’re trying to choke us out financially. They want to make it so we’ll have to go to them for their allotment if we want to sell water. But we’re fortunate. We don’t have to depend on the farm as our sole source of income. They’re not going to get my farm.”

Davis pulls his vehicle over by the banks of Pinto Creek. “I’ve seen it go bone-dry while the artesian wells are flowing,” he says, gazing over the spread of low oaks and mesquite and blindingly green, lush fields of oats and alfalfa that are fed by the artesian wells. He drives back to Brackettville, heads north to the other side of the Shahan and Ring properties all the way to Nueces Canyon, a stunning sliver of lost Hill Country scenery on the west fork of the Nueces River. Davis grew up on this land and has maintained the family homestead here. He gazes proudly over the rugged hills and fertile bottomland and says, “There’s not enough money in this world to dry up springs. You’ve lost touch with reality if money means more to you than something like this.”

Despite the effect of artesian well pumping on Pinto Creek, Zack Davis believes there’s plenty of water to give and relates the story about when Las Moras Springs went dry in 1964 (due to drought and heavy pumping for irrigated farming, according to many accounts), Brown & Root, which had bought Fort Clark after it was decommissioned, sent tanker trucks to fill up on water from an artesian well in the valley and drove the water to Brackettville.

The prospect of the groundwater district being dissolved and water speculators taking over groundwater in the next county prompted Jay J. Johnson, the owner of a bed & breakfast in Del Rio, to organize the West Texas Springs Alliance in March 2005, joining other groups throughout central Texas in the Greater Edwards Aquifer Alliance who are fighting water marketers. “Kinney County is a test case. If a fast one can be pulled on the naive citizens here, the same fast one can be pulled on any other board in any other county that is rich with water,” says Johnson. “I maintain that the true farmer or rancher should be allotted and receive the water that they need to conduct the agricultural business on their land. On the other hand, I’m totally opposed to anyone who would exploit and siphon from our aquifers so that water can be exported to the metro areas,” he says.

Kinney County Judge Herb Senne points out that the commissioners court, as well as the city councils of Brackettville and Spofford, passed resolutions supporting the Kinney County Groundwater Conservation District and opposing its dissolution by the Texas Legislature.

“The voters of their county were given a choice whether to put a district in place. Seventy-eight percent of the people who voted in the elections said yes. That same ballot had the option of how to fund the district and 65 percent of those who voted chose to fund it with an ad valorem tax. If that doesn’t show the district is clearly the choice of the voters in Kinney County, I’ll eat my hat.”

Anecdotal evidence on both sides of the issue fails to address other lingering questions: Exactly what constitutes a private property taking? What constitutes degradation of a natural resource like a spring? Who pays for the degradation? Is there a right of guaranteed stream flow? How connected are the headwaters of Pinto Creek to the artesian wells in Pinto Valley? If the Legislature dissolves the Kinney County Groundwater Conservation District, what does that say about groundwater districts being the state’s preferred means of locally controlling groundwater use, and what does it say about preserving the Rule of Capture?

No matter what legislators, lawyers, lobbyists, judges, entrepreneurs or bureaucrats say or do, springs are vital to the environmental and economic health of Kinney County, just as they are everywhere else in Texas.

Though the feuding has spilled over into churches, schools, businesses and all over the county, each and every one of the folks I visited with has more in common with each other than they’d care to admit: They are passionate about protecting their land, guided by a deep and abiding love for its beauty, which in the respective cases of the Shahans, Coates and Davises is directly tied to the water.

Politics aside, Kinney County has some of the best water anywhere in Texas. The riparian corridor along Las Moras Creek below the headwaters was as alive with wildlife as anywhere in the Rio Grande Valley river brush just after sunrise one morning. The sight of artesian water gushing out of well pipes, pure, clean, cool, pushed as high as 20 feet in the air by underground pressure, is downright miraculous.

Some of the hows and whys of that miracle are answered by Gary Garrett at the Heart of the Hills Fisheries Science Center near Ingram. Garrett is a TPWD biologist who has studied the springs and creeks of Kinney County extensively. He wastes no time explaining their delicate condition.

“The headwaters of Pinto Creek are biologically unique. It’s one of only four places on earth where the Devils River minnow exists. It’s a natural lab scientists hardly ever see. Pinto is really two creeks. North of Highway 90, it’s quite a healthy system. That’s where the Devils River minnow thrives. South of the highway, the level of sulphur in the water is higher [writer’s note: and emits quite an odor], salinity goes up, ammonia goes up, turbidity goes up. The Devils River minnow is no longer found. Instead it’s the red shiner, which does well in a polluted environment.

“The value of rare, unique species is that they are biological indicators,” Garrett explains. “If there’s no value other than that, it is extremely important. I don’t mind water leaving the county if it doesn’t affect the flow of the springs and streams. The question is, how much? When they irrigate, some of the springs stop flowing. Those springs need to flow, that creek needs to flow. The death of an aquatic system ultimately affects humans. Keeping them healthy is healthy for all of us.”

A century after the Texas Supreme Court decision upheld the Rule of Capture by declaring groundwater too “mysterious and occult” to regulate, the mystery remains, in Kinney County at least.

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