A Twenty-First Century Water War Erupts in Texas

Gary Cheatwood grew up near the town of Cuthand, in far northeast Texas, and he always found peace along the wooded banks of Little Mustang Creek. His grandfather had bought 100 acres in 1917 and now Gary’s family owns 600 acres of bottomland near where the creek’s clear waters meet the Sulphur River. He especially loves the woods around the creek—some 70 species of hardwood trees, including a massive Texas honey locust that ranks as official state champion. “This forest is not making money,” says Cheatwood, a retired surveyor and construction manager. “But a lot of things are more important than money. The trees give me pleasure.”

Everything about the land pleases Cheatwood. Still wiry and lean at 75, he walks it every week, always wearing his standard outfit of lace-up work boots, jeans, plaid flannel shirt, and baseball cap. He collects finely crafted Caddo and Cherokee Indian arrowheads. In the spring, blue and yellow wildflowers bloom. He takes pleasure, too, in looking for rare creatures—the American burying beetle, a certain obscure shrew, even the eastern timber rattlesnake.

Yet as he stood on the creek bank this January, he knew his family could have their homestead taken by the state of Texas. If Texas Water Development Board planners have their way, sometime in the next 20 years or so Cheatwood’s land will disappear under Marvin Nichols Reservoir, a proposed 72,000-acre lake meant to provide water to the Dallas-Ft. Worth “Metroplex” 135 miles to the west. Some 4,000 of his neighbors (a few estimates go as high as 10,000 people) will also become refugees, driven off their lands, either for lake bottom or for the hundreds of thousands of acres to be taken as “mitigation.”

All over rural Texas, large swaths of farmland and ranchland and coastal estuaries face a similarly precarious future. A convergence of extended drought, supply-side water policy, and relentless economic and population growth has led to bitter fights over how water is to be used.

The current drought began in 2006 and, with the exception of occasional years of what was once considered near-normal rain, has never really gone away. By far the state’s greatest climatic trauma occurred in 2011, when a full 85 percent of the state qualified as suffering from “exceptional drought,” the most severe category listed by the U.S. Drought Monitor. Hot, dry winds blew across the state from early spring through the summer and fall. For weeks temperatures ranged well over 100 degrees, and reached 110 degrees in places. Texas dried out so much that it literally caught fire: 31,453 wildfires burned more than 6,000 square miles. Gary Cheatwood’s tiny Cuthand Volunteer Fire Department fought 18 blazes by itself and cooperated with other agencies in fighting dozens more. “We were afraid to leave our homes to get groceries,” Cheatwood says. “If we weren’t at home when the fires came, no one could call for help.” An estimated 300 million trees died from lack of water. People bought feed to keep birds and deer alive. Reservoirs in West Texas ran dry.

Three years later, drought still prevails in 70 percent of the state. And although a predicted El Niño will, hopefully, bring rains, people still fear that the extended drought might become permanent, the new normal. But rather than recognizing the state’s erratic rains and limited water supplies—and recommending dramatic conservation measures—the Texas state water plan calls for building more dams and pipelines and drilling more aquifers to bring water to the growing cities.

Meanwhile, the Texas establishment, aroused by the recent oil and gas industry boom, predicts an 82 percent population increase in the next 50 years, leading to a state with 46 million residents. Austin, Dallas, San Antonio and Houston rank among the 20 fastest growing cities in the country. All these people coming to Texas will need water.

Texas cities are trying to grab water from the state’s rural areas, using the state’s existing planning process that for decades has favored urban/suburban development. If the cities succeed, they will inflict terrible damages on the environment and the ranching and agriculture that sustain rural communities. Along the Colorado River south of Austin, rice farmers near the town of Eagle Lake, whose land has been in production since 1893, may lose vital irrigation water. The rare, endangered whooping cranes that spend winters in the Aransas National Wildlife Refuge near the town of Rockport could die from lack of freshwater. Already one major die-off has occurred. In the winter of 2008-2009, at least 23 of 270 cranes died because Texas managers took too much water from the Guadalupe River and didn’t leave enough flowing into the bay to keep it brackish enough for the cranes’ food—the blue crab—to survive.

To many Texans living in the state’s large cities, places like Cuthand, Eagle Lake and Rockport are invisible—neither the cow towns imagined from Western movies nor contemporary urban sprawls. Instead, they are farming areas or coastal fishing villages. In Cuthand, families pass their acreage down to their children, and almost everyone works a second job to keep the farm or ranch going. In Eagle Lake, farmers harvest rice and supplement their incomes by working as guides for duck and geese hunters who lease their flooded rice paddies.

The state’s growth machine—summed up by Gov. Rick Perry’s (R-TX) ad campaign, “Texas Wide Open for Business”—sees these places as expendable. But the people who live in these sacrifice zones, along with Texas environmentalists, aren’t willing to go away quietly. They are fighting back to protect their lands, water and the state’s wildlife—what they collectively call their heritage. Rural residents and their environmental allies are vastly outnumbered and outfunded, but they are mobilizing for a long conflict. Their various local fights may buy time for Texas to create an alternative water paradigm, another path to the future in the increasingly volatile climatic era ahead.

Gary Cheatwood joined the Sulphur Oversight Society (SOS) in 2003, when he learned that the Dallas-Ft. Worth area had moved forward longstanding claims to the river as the site for a dam. A Cuthand area rancher, Shirley Shumake, founded SOS with a handful of other locals to sound the alarm. Armed with contour maps that traced the footprint of the proposed reservoir, they contacted everyone who might lose their land. Within a few years SOS grew to hundreds of members—a big number for a sparsely populated region—and garnered 8,000 signatures for a petition to the Texas State Water Board protesting the reservoir.

Shumake and Cheatwood’s group, joined by a local timber company, filed a lawsuit against the Texas Water Development Board (TWDB), claiming the state’s plan for Marvin Nichols Reservoir violated Texas state water laws protecting agricultural and natural resources. SOS won, and again won an appeals hearing. But then the TWDB attempted an end run around the courts and is now seeking to put Marvin Nichols Reservoir into a regional water plan. “The board just went ahead and did what they wanted to do,” Shumake said. Cheatwood sighed, “We got the weight of the Texas Water Board on us now. We’ll have Marvin Nichols hanging over us forever. It’s not right. People down here feel like they’ve been run over.”

At the most basic level, the sheer greed motivating plans for Marvin Nichols Reservoir galls rural residents. “Building the lake is not about getting the water,” Shumake said. “It’s about money.” Dallas-Ft. Worth can indeed get its water elsewhere. Many reservoirs built for flood control between 1960 and 1980 have never been tapped for water supply. Texas also calculates lake capacity conservatively; dams can be safely filled to higher levels or the dams themselves raised to increase capacity. But if Dallas-Ft. Worth follows this approach, Shumake said, “They’d have to buy the water from some other agency. They wouldn’t own it and control it.”

Another financial incentive to build the reservoir comes from the money to be made by construction. Calculated in 2013 dollars, building Marvin Nichols Reservoir will cost more than $3.8 billion for the reservoir itself, and $2 billion for pipelines. Texas Water Development Board guidelines allow the supervising engineering and construction management firm, together with legal and financial consultants, to take 35 percent of the total costs for reservoirs and 30 percent for pipelines as their commission. The engineering and construction management firm that serves as consultants to the Dallas-Ft. Worth water planning group—a company called Freese and Nichols Inc.—is the same firm doing the preliminary design work for Marvin Nichols Reservoir. “The consulting firms work for the planning groups cheap,” explains Rick Lowerre, an Austin environmental attorney who represented Cheatwood and Shumake in court. “They do it to promote projects where they can make much more money.” In fact, the proposed lake is named after the man who cofounded the firm in 1922 and designed Texas’s plan in the 1960s for large-scale reservoir construction.

Then there’s the money to be made selling the water from Marvin Nichols Reservoir. Dallas-Ft. Worth sits atop the Barnett Shale, which since 1981 has been drilled and fracked for natural gas. Economic geologists from the University of Texas estimate that from 1981 to 2012 hydraulic fracturing took 55 billion gallons in this region alone. Water from Marvin Nichols Reservoir could be sold for drilling and fracking all over Texas. Or it could be sold as bottled water. Already, private businesses bottle and sell municipal water, and make a nice profit in the process. The bottled water Cheatwood buys at Walmart carries this label: “Bottled in Fort Worth by Cott Beverage. City of Fort Worth Municipal Water.”

This water-industrial complex—choked with conflicts of interest and driven more by avarice than necessity—seems like a Lone Start State remake of Chinatown, Roman Polanski’s 1974 film about Los Angeles’s water grab in the Owens Valley. William Mulholland, Los Angeles’s water czar at the turn of the twentieth century (and the villain in Chinatown), once explained his motive for swindling valley residents to support LA’s growth with the remark: “If you don’t get the water, you won’t need it.” In other words: supply will drive the demand.

Sulphur River bottom residents are also upset that their lands will become drowned for a very shallow lake—virtually a swamp. “Here the lake will be just three to four feet deep,” Cheatwood pointed out. “Over there it will be only one to two feet deep. Marvin Nichols will destroy this whole country for a foot or so of water.” It’s questionable how much of its shallow water will remain after the Texas sun takes its toll. Water engineers calculate that evaporation across all of Texas’s reservoirs totaled 129 percent of municipal use in 2010.

Lastly, “aggravating us no end,” Cheatwood said, water from Marvin Nichols will end up sprinkling lawns. Texas municipalities currently use 35 percent to 50 percent of their water for landscaping. Cities vary enormously in terms of daily water use, what’s called gallons of water per day per capita (gpcd). Dallas took 198 gpcd in 2013, and its surrounding suburbs—where large lawns rule and golf courses and water parks proliferate—used even more.

In contrast, the Sulphur River region in northeast Texas used 140 gpcd. “We conserve our resources. We don’t water our grass at all,” said Cheatwood’s son, Gary Jr., a software engineer who drives back and forth to Dallas-Ft. Worth frequently. “The developers go out there on the prairie and strip out the top soil and prairie grass, and plant St. Augustine sod—it was never meant for St. Augustine! The suburbs and cities are addicted to an unlimited water supply. Must we give up our land for their addiction to a lifestyle? … Those folks in Dallas think we’re hillbillies and they’re doing us a favor by getting us out of the woods.”

But the Cheatwoods have no intention of abandoning their property. “We’ll never leave here,” Gary Sr. said.

Three hundred and fifty miles to the south, Ronald Gertson, a fourth generation rice farmer, faces another kind of water crisis. Standing in a dry rice paddy this January, he looked at the $350,000 well his family had just installed to help them get through another year without river water and grimaced, wondering just how long they could keep going.

Each year in February, the Lower Colorado River Authority (LCRA), a state regulatory agency, makes a decision on whether to release water from the Lake Buchanan and Lake Travis reservoirs. Below Austin, along 150 miles of the Colorado, the river supports 50,000 acres in rice irrigation, cooling waters for rural electrical plants and ultimately, water for the river ecosystem and its outlet on the Gulf at Matagorda Bay.

Gertson rightly predicted the LCRA would not release water in the spring of 2014. Because of the drought the levels behind the dams were far below 850,000 acre-feet, what in recent years had become the LCRA’s trigger. It would mark the third year of no river water for irrigation. Gertson whipped out a calculator. “If all 50,000 acres of rice paddies stay dry,” he said, “a minimum of 500 million pounds of rice will not get produced, full calories to feed 1.8 million people.” In 2012 and 2013, the rice farmers in the region survived through a U.S. government-subsidized program of crop insurance called “preventive planting,” meaning they received the market value for their rice even though they planted nothing.

Agricultural support businesses, though, just went under. “The bank closed up on December 31, 2013,” explained Mary Parr, mayor of Eagle Lake, population 3,000. “They handed over the building to the city—they didn’t even try to sell it. A rice drying facility closed, as did the local branch of John Deere. We’re getting deeper into the hole.”

As the drought continued, the city of Austin and the affluent suburban communities that had developed around the reservoirs began to lobby the LCRA to raise the “trigger” even more—65 percent higher, to 1.4 million acre-feet. Such a trigger would basically doom the rice farmers, but it was billed as a necessity for the lakeside communities. They wanted to preserve the water levels in the lakes so that residents could keep their views, readily reach their boat docks, and retain home values. The city of Austin—the fastest growing city in the U.S. in 2013—wanted to have a saved supply of water for future expansion. Such “water banking” is not uncommon. The phrase is revealing: Water in Texas is a commodity as valuable and as fungible as money itself.

Within a few years, the rice growers will run out of federally subsidized crop insurance, driving them bankrupt. Facing bankruptcy, rice farmers will have no other choice other than to plow and break up the near water-tight clay pans that keep water in the rice paddies; destroying the pans will be necessary to convert the land to cattle pasture, the only other agricultural use for the area. In effect, raising the trigger to 1.4 million acre-feet before releasing water downstream will destroy rice farming on the lower Colorado forever.

The suburban lake communities claimed that raising the levels was absolutely necessary because the old level of 850,000 acre-feet represents “an imminent threat to public health and safety.” Their arguments rested on an imagined series of events: If 1.) it rains in the spring and 2.) the LCRA releases some water to the farmers, and 3.) after that release there are no more rains and 4.) evaporation lowers the lake levels, then the intake pipes would be left high and dry above the water line. (Ronald Gertson calls this line of thinking a “once in a hundred year scenario.”) The Austin Water Utility added to the drama, claiming that its water system was designed to function at high demand levels: “As flow decreases, AWU system’s ability to handle peak demands and fire flows may be affected.” In short: Austin might burn down! Just as dangerous, Austin officials said, if state agencies did not hold 1.4 million acre-feet in the lakes, then diseases might generate in the water pipes.

Finally, Austin raised the specter of what might happen if the city reduced or banned lawn watering. “With deepening watering restrictions, there is increased risk of illegal cross connections.” Austin’s citizens might jury-rig “graywater” drains to their yards, “which carries health risks.” And if watering did not continue, trees might die and home foundations would crack. (Requests to the Austin Water Utility for documents and interviews to back these claims were ignored.)

“It does not make sense to cut off food production for watering lawns,” Gertson said. “We’re a small group down here and we’re pitted against millions in Central Texas who want to continue a wasting-water lifestyle.”

But the rice growers found allies in the environmental community. “People in Austin are still watering their yards. Does this sound like an emergency to you?” asked Jennifer Walker, a water resource specialist for the Texas Living Waters Project, a joint National Wildlife Federation-Sierra Club effort to create a water policy for both people and wildlife. Kirby Brown, a wildlife biologist with the national hunting group Ducks Unlimited, helped put together the Colorado Water Issues Committee, a partnership between downriver businesses, environmental groups, and hunters. “We describe the rice-growing region around Eagle Lake a ‘rice prairie wetland ecosystem,’” Brown explained. Eagle Lake calls itself “The Goose Hunting Capital of the World.” But since the LCRA cut off water in 2012 and 2013, more than 80 percent of the snow geese quit coming. Brown explained the stark mathematics of duck food requirements: “Half of a duck’s energy is rice. We calculate that every 10,000 acres of rice supports 120,000 ducks and geese.” If Texas agencies end water releases down the Colorado, then ducks and geese, like the rice farmers, will vanish.

The showdown came in late February. Austin and the Highland Lake communities convinced the LCRA and two state administrative judges to boost the release level to 1.4 million acre-feet. But when the issue came before the Texas Commission for Environmental Quality (TCEQ), its commissioners ignored the cities’ claims about threats to public health and safety. Instead, the TCEQ did not set a trigger level at all, saying that, given the extended drought, no agricultural water releases were pending in the next 120 days anyway. Limited releases, called “environmental flows,” to sustain the river and bay ecosystems will continue for the time being. This was exactly the direction recommended by the farmer-hunter-environmentalist coalition. Ronald Gertson, elated at winning his most important battle in 26 years of water politics, said: “I am doing pretty darn good.”

Down in the coastal communities near the Aransas Wildlife Refuge, where the Guadalupe River reaches San Antonio Bay, birders, fishermen and the tourist industry anxiously await the outcome of another case, now before a federal appeals court, that will determine their future.

In response to 2008-2009 whooping crane deaths, the communities formed a new foundation, The Aransas Project, and hired Jim Blackburn, a Houston-based environmental attorney. Blackburn, whose 2004 work, The Book of Texas Bays, describes the Texas coast as “in its natural state a metaphorical Garden of Eden,” developed a bold legal strategy. He alleges the state violated the Endangered Species Act for years by not properly managing freshwater inflow into San Antonio Bay. The collapse of the blue crab population thus led to the birds’ deaths. The state of Texas was legally responsible since its water agencies decide how water is allocated. A federal judge in Corpus Christi ruled in favor of The Aransas Project in 2012. The state of Texas appealed the case to the Fifth Circuit in New Orleans; a decision is expected imminently.

Regardless of who wins, further appeals are likely, perhaps all the way to the U.S. Supreme Court. If The Aransas Project prevails, Texas will be pressured into sustaining freshwater inflows. A victory for the whooping cranes would also set a crucial legal precedent for additional Endangered Species Act lawsuits to protect estuaries, such as Matagorda Bay, that serve as habitat for another blue-crab-eating endangered species, the Kemp’s Ridley sea turtle.

Blackburn stresses that lawsuits blocking existing state water practices and plans will not by themselves create viable policy: “To win in Texas you have to solve the [demand] problem as well. “ But changing how people and cities use water takes years.” Myron Hess, an Austin-based attorney for the National Wildlife Federation and expert on Texas rivers and estuaries, thinks that at the very earliest, Texas’s environmental advocates cannot expect to make major changes in the state’s water plans (which are issued every five years) until 2022.

In the fight against Marvin Nichols Reservoir, the struggle to secure water for the Lower Colorado, and in the whooping crane lawsuit, water activists are simply buying time to make those cultural changes in water use, trying to push back the Texas growth machine long enough for conservation ethics and technologies to take hold across the state. “It’s a tough environment, but we have to do it,” Hess said. “If we can win changes here in Texas on a large scale, it would be a big signal to the rest of the country.”

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