Landowner family says only a small fraction of that will be used for wall contractor
Editor’s note: A family member of the landowner objected to The Big Bend Sentinel’s original headline, becaused it implied 1.3 billion of water would be pumped. She was correct and we regret the miscaracterization, since what was permitted used a standard formula in water district rules. This story has been updated to add context.
Fort Davis
The Jeff Davis Underground Water Conservation District meeting began with a recitation of rules by the general manager, Janet Adams, on August 25. This was aimed at a handful of local activists, who showed up with polite but pointed questions about item 7 on the agenda: the review and approval of a new production well on property owned by Jim Dyer, a member of the district’s board.
Dyer requested a second production well to be drilled on his property and an existing well to be metered for production use. Both requests were approved, which now allows Dyer to pump 1 acre-foot of water, or 325,851 gallons, for each of his 4000 acres, a total of 1.3 billion gallons of water. Dyer recused himself from the decision and was not present at the meeting. The water was to be used for unspecified construction. Activists believed that it would be used to enable the building of the border wall. Trucks for Barnard, one of the contractors for the border wall, have been seen leaving Dyer’s property on Chispa Road.
Dyer’s daughters later posted to a Fort Davis Facebook Group to clarify the situation. “The 1.3 billion gallon figure is NOT an estimate of what our dad plans to pump,” wrote Amber and Amanda Dyer. “It is NOT an amount he requested, and it is NOT based on the anticipated needs of this project. The number simply comes from applying the water district’s standard allowance of one acre-foot of water per acre to the acreage associated with the well. Any property of the same size subject to the same rule would produce the same 1.3 billion gallon number on paper. The actual amount of water that will be used is only a tiny fraction of that figure.”
Dyer went on to note that in June, July, and August the well pumped 817,315 gallons for Barnard Construction, the wall contractor in the area. “The actual use of the water looks very different from what that 1.3 billion gallon figure suggests,” the Dyers wrote. “The water has been used to settle dust at the RV/man camp and laydown area and, temporarily, along a relatively short stretch of road. Now that gravel has been put down in the RV/man camp and laydown area, water is no longer being used there for dust control.”
However, she was unwilling to talk to The Sentinel about the issue and what future water use might look like and lamented the impact of an original characterization by The Sentinel that the entire 1.3 billion gallons would be pumped. “More than anything, our dad is deeply sorry that a decision he made has resulted in his lifelong friends and neighbors having their own character and integrity questioned,” she wrote. “They had nothing to do with his decision to sell the water, and they should NOT be personally attacked because of it.”
“Our family has been ranching here since the 1960s, and our dad has spent most of his life here,” the Dyers wrote. “His cattle, his ranch, his home and his family all depend on the same groundwater as everyone else. He would never knowingly jeopardize the aquifer.”
She also made a dinstiction that could have impacted the decision to supply water to a wall contractor. “We also want to make one thing very clear: none of us, including our dad, wants a border wall through Big Bend National Park. This property and the water use being discussed are nowhere near the park,” she wrote.
“I have concerns about what will be happening right in front of my house and it kind of breaks my heart,” Wini Hunton-Chan, Dyer’s neighbor, said during the public comment session.
“We have no choice in what you do with the water as long as you pump what’s allowed,”Adams said at the start of the meeting. “We cannot and will not deny rights to private property owners by law.”
Who can use natural resources, and for what benefit, is an ancient question in Texas. The rule of capture was set in a 1904 court ruling between a railroad company and a landowner. In circumstances with strong similarities to today, the landowner sued the railroad for damages, alleging that their well ran dry after a railroad had set a high-producing well on a neighbor’s property.
The court had to decide between the rule of reasonable use, which would benefit everyone, and the rule of capture, which says that any water on your property belongs to you, as it’s too difficult to determine boundaries of water and doing so would limit growth. It went with the latter. The drying of a well was considered to be damage without legal injury — or in other words, it sucks but you’re out of luck. This set the precedent for a century of complicated legal rulings around water, with the rule of capture decision being regularly reaffirmed despite some added conservation provisions.
On year six of another major drought and acutely aware of the necessity of groundwater for drinking, bathing and generally living in the high desert, residents are again questioning whether a single citizen should profit at their peril.
The Dyer allotment alone would take up a majority of the water usage modeled for the county to meet desired future conditions, although as noted the allotment doesn’t mean the same as actual use. According to a 2022 report by the Texas Water Development Board, Jeff Davis County was predicted to annually use a 6,056 acre-feet segment of the Bolsons Aquifer, where the Dyer permit is located. This estimation includes a reduction in expected usage after 2030. The production permit for Dyer is a lifetime permit, and not required to be renewed.
Dyer will be required to monitor the well and report annually. The water can be transported outside the county without paying any additional fees as long as it is moved by truck. Adams, the general manager, says that there are currently 30 wells being monitored in the county. She stated to the board that the water use requested by Dyer would be within the predicted range of the aquifer recharge rate.
According to the most recent available report on recharge and desired future conditions in Jeff Davis County, the listed recharge rate for the Bolsons aquifer is 153 acre feet of water per year from precipitation, with the remaining recharge occurring between neighboring aquifers.
Ultimately, the board moved on with the approval with no further discussion. “It’s his water, it’s under his property,” said Johnny Lawford, president of the board, before turning to other business.
