The Austin Chronicle

Call in the Rangers

A Memo to the Governor:

By Robert Bryce, July 26, 1996, News

To: Governor George W. Bush

From: Robert Bryce

overnor, The situation was desperate. Pumping was completely unregulated. Reserves were rapidly being depleted as large landowners competed with small landowners for their share of liquid wealth. Billions of dollars were at stake. Numerous attempts by the Legislature to set withdrawal limits had failed. Uncertainty was abundant. Prices bounced up and down as various lawsuits wended their way through federal courts.

The governor was in a bind. Agricultural interests -- especially the cotton growers -- were going broke and needed help. Meanwhile, there was chaos in Kilgore. Geologists feared that the entire reserve would play out in months rather than years due to overpumping. While trying to broker a deal on cotton, the governor denounced the pumpers, decrying what he called the "wild scramble now going on to dissipate and deplete the natural resources of this state." Railroad Commissioner Pat Neff said Texans were "criminally guilty of robbing posterity."

The problem Neff was talking about was an antiquated law called the rule of capture. Whoever owned the land owned the liquid resources beneath it. So neighbor was pitted against neighbor in a contest to see who could pump the most the fastest, sell it and make a profit.

The Lege tried vainly to pass a workable pumping limit law, and on August 12, after a late night conference committee meeting, a deal was at hand. But legislators were expecting another long court fight over the state's authority to limit pumping.

So on August 17, 1931, Ross Sterling made good on his earlier promise, declared martial law, and dispatched 900 National Guard troops and 11 Texas Rangers into East Texas, and all pumping was halted for several weeks until effective limits could be enforced.

Governor, it's been almost precisely 65 years since Sterling forced Texas oil producers to end their failed experiment with the rule of capture. It's time for you to do the same with regard to groundwater. A bold move by you could save Comal and San Marcos Springs, and provide a resolution to the forever-and-a-day-long war over the water in the Edwards Aquifer.

Of course there are differences between the fight over oil and the current fight over water. Gov. Sterling was dealing with a huge oversupply. With water, Texas has an undersupply. But, Governor, the parallels are obvious. In Sterling's day, no one had the authority to limit pumping, and reserves were being quickly depleted. You face the same situation. But there's a difference: Water in the Nineties, because of its scarcity, has become much more valuable to Texas than oil was in the Thirties. Yet when it comes to groundwater, we are relying on a law that originated in Medieval England. The rule of capture governed wildlife: If a deer wandered onto your property, you were allowed to claim it as your own. The same applied to oil in the U.S., until oilmen realized they were hurting themselves by not properly managing their reserves. With overpumping, the underground caverns lose natural pressure, which stunts long-term production. And because everyone wanted oil, huge amounts of the natural gas that comes up with it were wasted, burned off by massive flares or simply vented.

Governor, as a former oilman, you know the history of the oilfield, and the waste that was caused by the rule of capture. So make a bold move in Texas water policy: Suspend the right of capture west of Interstate 35. Use the Texas Rangers (the ones with guns, not your baseball team) and the National Guard if you have to, but begin enforcing pumping limits on the Edwards Aquifer. You can then begin enforcing limits on the other aquifers west of I-35, (roughly the longitude where the western deserts meet the eastern forests), including the rapidly declining Ogalala in the Panhandle, and the Hueco-Mesilla Bolson Aquifer in El Paso.

The aquifer crisis demands attention. A sensible water policy is essential for the long-term economic health of two million Texans living along the Balcones Escarpment. The tourism business in New Braunfels alone is estimated to be worth $100 million per year. The entire economy of San Antonio depends on a workable solution to the Edwards water war.

And unfortunately, Governor, the only way to resolve the war is with a loaded gun. Each well owner gets an allocation of water. Police the pumpers. No one takes more than their share. If they do, turn 'em off. If they start pumping again, have them arrested by the Texas Rangers and/or the Guard.

Sure, Lucius Bunton has given the Edwards Aquifer Authority until August 1 to set limits, but do you think Archie McFadden and the farmers out in Uvalde County are going to stop pumping if the EAA asks them politely? Hell no, they won't. And the EAA doesn't have any money or personnel to enforce their rules even if they wanted to.

The farmers west of San Antonio deserve to be compensated. And your man on the farm, Agriculture Commissioner Rick Perry, is now promoting water marketing as a solution. Perfect. Tell the farmers that your intervention is a temporary solution and that San Antonio will buy their water rights and their land if they want, and they will get top dollar. Meanwhile, you can tell the GOP that you are letting the free market solve an intractable situation.

If your backers in Dallas complain, ask them if they'd like the rule of capture reinstituted in the oil field. They'll back you.

There's also the platform problem. As you know, the Texas GOP adopted a platform last month in San Antonio, which says "the state should neither make nor enforce any law which may abridge the privileges or immunities of the citizens of Texas with respect to minerals, water or property rights without due process of law. We further affirm that groundwater is an `absolute ownership' right of the landowner."

Governor, you will just have to explain that with the ongoing drought, you had no choice but to toss the groundwater plank. Tell 'em about Sterling and the oilfields. They'll understand.

If you've read your Texas history, you probably recall that Sterling was a one-term governor (defeated in '32 by Ma Ferguson). Don't worry about it. Ann Richards is making a fortune as a lobbyist. She won't come back. Your poll numbers are great. Besides, you don't have to run again for two more years. Voters have a short memory.

Governor, you may think it better to let the courts handle it. Fine. If the EAA can't limit pumping, then Bunton will be forced to set limits, and the only forces at his disposal are federal marshals. Now, you've done your share of Washington bashing. How do you think Texas ranchers will respond to federal marshals? Somebody will end up dead.

It'd be far wiser to use Texas law enforcement to handle a Texas problem. That's been your solution for endangered species. It should be the same for water. The Uvalde ranchers will be far more inclined to cooperate with a Texas Ranger than with a federal agent.

Governor, this won't be easy. You're going to take some heat. But in the long run, you'll be viewed as courageous. Remember, it took guts for your father, President Bush, to sign a landmark environmental bill, the 1990 amendments to the Clean Air Act. But he was lauded for it. Taking bold action on the Edwards/groundwater issue will be a feather in your cap. You could help save two irreplaceable treasures -- Comal Springs and San Marcos Springs -- while resolving a decades-long dispute.

Sixty-five years ago, Governor Sterling helped conserve Texas oil and gas for future generations. Governor Bush, if you follow his lead, you will be conserving an even more important commodity for Texas: Water. n

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