The citizens of Roberts County, Texas, will be interested to know that T. Boone Pickens, the noted corporate takeover artist and fellow resident, considers himself the county's "No. 1 steward of the land," as he proclaimed in a recent phone conversation with me. Why then, they might ask, is he trying to sell their water out from under them?
The mere fact that Pickens can do that, in a hauntingly literal way, is the beginning of a parable about regulation and the environment that starts in the Texas Panhandle, winds its way through Austin and resonates in post-inaugural Washington. It's a cautionary tale suggesting that even in a certain recent governor's home state, whose laissez-faire mind-set he'd like to see replicated nationally, free enterprise is fine, as long as it's not your resources that it exploits.
In the 1980s, Pickens, a kind of entrepreneurial equivalent of his namesake, frontiersman Daniel Boone, became wealthy by launching daring takeover bids against oil companies -- Gulf Oil, Phillips and Unocal were among his targets. Even though his bids didn't always succeed, they provoked terror in corporate boardrooms and usually left Pickens enriched, sometimes by many tens of millions of dollars. Now, at 72, he has shifted his attention to another scarce liquid, just as it's emerging as a valuable commodity.
In state after state and in scores of foreign countries, the demands of industry, agriculture and a burgeoning population are chafing against a finite supply of fresh water and the neglected needs of enfeebled environments. After four years of drought, Texas is a leading example.
As Texas' metropolises grow, the search for municipal water has become expensive and intense. Pickens hopes to capitalize on this by tapping the groundwater of four Panhandle counties and sending it by pipeline hundreds of miles to one of three Texas cities: El Paso, San Antonio or Dallas-Fort Worth. The 654-mile pipeline Pickens envisions for El Paso would cost a cool $2.1 billion, but he figures he can amortize that with the high water fees the city would have to pay.
On Dec. 26, the New York Times carried a front page story about the Southern California Metropolitan Water District's plan to buy 145,000 acre-feet of water per year from Cadiz, Inc., a private company, yet Pickens' plan is bigger and more audacious. For starters, Pickens says Dallas would have to pay $675 per acre-foot for the water, while El Paso, separated from the Panhandle by a mountain range, would face a $1,400 per acre-foot charge. By contrast, the Southern California deal sets an initial levy of $230 per acre-foot.
Water for Pickens' plan would come from the Panhandle portion of the Ogallala Aquifer. One of the largest underground repositories of water in the world, the Ogallala stretches from Texas to South Dakota and once held more water than Lake Huron. That was a century ago, before the advent of cheap electric pumps gave farmers the power to lift water hundreds of feet. Statistics on the Ogallala are unreliable, but here's one: The aquifer waters one-fifth of the nation's irrigated land. And here's another: In less than a decade from its peak in 1978, the area of agricultural land irrigated by the Ogallala fell by 20 percent, at least partly because of the Ogallala's depletion.
The Ogallala isn't like rivers, lakes or even most other aquifers: It has no source of replenishment. It holds "fossil water," sealed underground for hundreds of thousands of years. Once it's used, it's gone forever. Now, as the Ogallala's water level continues to fall, Pickens is proposing to expand its use, so far chiefly agricultural, to include supplying large, distant cities.
He's anything but apologetic. "These wild statements like 'Pickens is going to dry up the Ogallala' and 'It's going back to a Dust Bowl' and all that stuff are baloney," Pickens said over the phone. "Hell, I'm not about to dry up the [Ogallala] reservoir. But I don't mind selling surplus water." Alas, one man's surplus is another's unsustainable resource.
In most states, Pickens wouldn't enjoy the right to buy and sell groundwater, but Texas is the heart of the heartland, where regulation is considered inconsistent with the God-given right to make a ton of money. Thus, it's the only state in the arid West that legally acknowledges the "right of capture," by which landowners have title to the water beneath them. (Surface water is another story: Even in Texas, rivers and lakes are part of the state's realm.)
One problem with the right of capture is that aquifers don't come in lot-size, watertight compartments: A landowner who slurps from his straw will eventually imbibe some of his neighbor's water, in addition to his own. It wasn't until he faced precisely this prospect that Pickens starting paying attention to water. Not one to miss out on a potential moneymaking deal, Pickens found that his proposal taxed the sensibilities of even the most free-enterprise-loving Texans.
In 1997, the Canadian River Municipal Water Authority (CRMWA) bought water rights to 40,000 acres of land near Pickens' ranch outside Amarillo. Unlike Pickens' deal, the purchase wasn't controversial, since CRMWA intended to use the water locally. CRMWA supplies Amarillo, Lubbock and nine smaller cities in or near the Panhandle. It needed the groundwater both to meet rising municipal demand and to mix with its surface water, which is excessively saline.
It was no accident that CRMWA sank wells in Roberts County: From a water developer's point of view, the area is highly desirable. The aquifer beneath the county is unusually deep, and it remains well-stocked because the land is too hilly for irrigation. The water table there has dropped only about 50 feet on average; in irrigated parts of the Panhandle, it has dropped as much as 200 feet.
The CRMWA deal galvanized Pickens, particularly since CRMWA intended to dig one well no more than 10 miles from his 24,000-acre ranch. He reached what for him was an obvious conclusion: He had to sell the water beneath him before CRMWA drained it for him. Together with half a dozen neighboring landowners, he formed a consortium representing 150,000 acres, and in November applied to the local groundwater conservation district for a permit to sell the water. Instead of having their lands drained by others, Pickens and his allies figured to do most of the draining themselves.
Pickens' gambit promised to bring a huge windfall to his rancher allies, from whom he has bought water right options at $350 an acre, substantially more than the current market rate for the land itself -- $250 to $300 per acre. Better yet, Pickens' plan would enrich a steadily growing number of landowners, since to supply a city with sufficient water, Pickens would have to keep expanding the acreage supporting his pipeline until his pumps draw from beneath as many as 2 million acres in four Panhandle counties.
But the ranchers are Pickens' only supporters in the Panhandle; to just about everyone else, he's cemented his position as regional reprobate. Already unpopular, Pickens now stands accused of another blasphemy: expropriating Panhandle groundwater. After all, Pickens' plan comes with a range of risks: It could cause saltwater intrusion within the aquifer, and it could reduce the pumping effectiveness of existing wells. A remote chance exists that it could cause land subsidence, as has happened around Houston after groundwater overpumping.
Most infuriatingly of all to Panhandle residents, instead of being used for the highly esteemed callings of farming and ranching, the groundwater could end up flushing toilets in distant San Antonio. When the Amarillo Globe-News asked in an online poll what readers thought of Pickens' plan, 84 percent chose this answer: "Leave our water alone. It's ours and the rest of the state cannot have it." Even John Rocker, the foul-mouthed pitcher, won overwhelming support in a Globe-News poll, but not Pickens.
The larger significance went unnoticed: In a place that embraced conservatism (in Roberts County, for instance, George Bush got 86 percent of the 2000 presidential vote) Pickens' exercise in free enterprise was as unpopular as, well, Al Gore.
In fact, Pickens' ploy has led Panhandle residents to some uncharacteristic conclusions about the R-word -- regulation -- though they are loath to come right out and say so. "The rule of capture does not require a total overhaul," said a Globe-News editorial, "but a review is warranted." David Swinford, the conservative Republican who represents the Panhandle in the Texas Legislature, called for a regulatory "counterbalance" to the right of capture.
Compared to the baby steps that those statements represent, the state government has virtually stampeded toward groundwater regulation. That bastion of conservatism and butt of a million Molly Ivins jokes, the Texas Legislature, has already taken away the right of capture from landowners overlying the Edwards Aquifer beneath San Antonio, and in Senate Bill 1, passed in 1997, it empowered groundwater districts to ban new wells unless they conform to existing conservation programs.
When it was passed, SB1 was hailed as landmark legislation, the most significant achievement of the biannual session, but the Pickens plan shows its limitations. Consider the box that the Panhandle Groundwater Conservation District is in. Its program is considered one of the most stringent in the state, yet in fact, it's disturbingly timid: It allows the depletion of 50 percent of the existing Panhandle aquifer within 50 years. What will the presumably more numerous residents of the Panhandle do in 2050? Will they then plan for the depletion of half of the remaining half, until less than a quarter is left?
Even more disturbing, a new government-funded projection by Alan Dutton, a research scientist at the University of Texas, Austin, shows that if Pickens' projected withdrawals are added to approved withdrawals by CRMWA and the city of Amarillo, the district wouldn't come close to meeting its 50 percent-in-2050 goal. To do that, it would have to cut the pumpers' allotment by more than half, from one acre-foot of water per acre per year, to four-tenths of an acre-foot per acre. But the district lacks the legal standing to assign Pickens a withdrawal rate lower than it has already granted to CRMWA and Amarillo. It probably can't act, in fact, until the depletions are an accomplished fact, five or 10 or 20 years from now. Only then, too late, could it force all the pumpers to cut back equally.
Conservatives may call even that requirement an unjustified intrusion into the realm of private ownership, but as time goes on and depletion continues, their argument will hold less and less, um, water. Deplete aquifers long enough, and pumping costs increase until they become prohibitive and water quality disintegrates; regulation becomes nothing more than prudence, a sign of regard for future generations.
After all, the hazards of depleting groundwater sources like the Ogallala are so obvious that even Texas has edged toward regulation, and ploys like Pickens' may hasten the pace. In the absence of anything more substantive, I'll take hope from this: The man who signed SB1 into law was Texas' last governor, George W. Bush.