The Great Sucking Sound

Bart Sipriano's well dried up four days after Ozarka started pumpin massive amount of water nearby. Under the state's archaic "rule of capture," the East Texan has no right to complain.

The Texas Supreme Court case that established the rule of capture as state law dates to 1904, but closely parallels the Sipriano case. Back then, W.A. East, a landowner in northeast Texas, complained that his 20-foot well went dry after his neighbor, the Houston & Texas Central Railway, began extracting 25,000 gallons of water a day to power its steam engines. The court said the railway had a right to extract water from its land, ruling that the origin, movement, and course of groundwater was "so secret, occult and concealed" that any legal rules governing groundwater "would be involved in hopeless uncertainty."

Scientific advancements have since unshrouded the mystery of aquifers. Still, Texas to this day recognizes only three exceptions to the right of landowners to withdraw water from their land. The drawing of water must not be done purposely to injure a neighbor, be willfully wasted, or result in the flooding of a neighbor's land.

None of the three exceptions applies to Sipriano, whose claim of injury therefore has no remedy under current Texas law. In order for him to seek damages from Ozarka, he needs the Supreme Court either to abandon the rule of capture or to spell out more exceptions. Some experts predict the judges will lend a hand.

"The mere fact that the court is hearing this case raises the notion that it is ready to overrule the East decision to some extent," says Corwin Johnson, professor emeritus at the University of Texas at Austin School of Law and one of the state's foremost authorities on water law.

The court may act because the state Legislature has flat-out refused. Lawmakers congratulated themselves in 1997 for passing a comprehensive plan designed to help protect the state's water resources. Its urgency was reflected in its bill number: Senate Bill 1. Urgent though it may have been, the bill failed to address one of the greatest threats to a rural Texan's right to water -- the rule of capture. Lawmakers simply were afraid to mess with it.

"We did discuss the question of whether to modify the rule of capture through some sort of legislative change, but it was not done because we felt if that was taken up, it would have dominated the debate and therefore would have put the entire plan in jeopardy," says state Senator J.E. "Buster" Brown, a Lake Jackson Republican who sponsored the bill.

Leading up to Senate Bill 1 negotiations, the chairman of the Texas Natural Resource Conservation Commission, which regulates state environmental policy, encouraged legislators to reconsider the rule of capture.

"It hinders the wise utilization of the resource," says TNRCC Chairman Barry McBee, who is quitting at the end of the year to run the office of newly elected Lieutenant Governor Rick Perry. "I don't think it protects private property rights at all, and the Ozarka case is evidence of that. Farmers and ranchers believe they should have absolute rights to their water. Well, the rule of capture says they have that -- unless the guy next to them has a bigger pump. Their rights become quite ephemeral at that point."

Johnson, who was consulted during the Senate Bill 1 negotiations, says the property-right concept that rural landowners have fought so hard to retain over the years is illusory. "What it is, really, is the right to harm somebody else," he says.

Legislators, however, didn't submit to the logic of McBee or Johnson, choosing instead to acquiesce to the wishes of certain lobby groups that are more caught up in Texas legend and tradition. The Texas Farm Bureau and the Texas and Southwestern Cattleraisers Association, which represent farmers and ranchers who need massive amounts of water to keep their crops and animals alive, have successfully wielded their formidable power for years to oppose any legislative attempt to change the rule. In the case before the Supreme Court, the two groups are siding with Ozarka, the corporate intruder, instead of Sipriano, who has lived in rural East Texas all of his life.

Officials for both groups try desperately not to stumble over the ironies. Bart Wulff, a board member of the cattleraisers association, says that for as long as Texas has been Texas, farmers and ranchers have bought their land expecting to be able to drill down into it and use whatever water they can find. A change in the rule of capture is unfair to those who've bought the land under that assumption, he says.

"The obvious sympathetic position for us to take would be with those little folks out there who are being ruined when big operators like Ozarka come in and drain them dry," says Wulff, a Dallas lawyer who owns a ranch in the Hill Country. "But one bad example is not enough reason to have the court come in and abandon what has been an established rule of law for 100 years."

Ridge Pate, legal director of the Farm Bureau, says, "We're dealing with folks' property rights. When you take one away, where does it end?"

The city of Houston, which gets about 35 percent of its water supply from groundwater sources, also is siding with Ozarka. The city, which provides water to Houston and 19 surrounding communities serving about 2 million homes, operates about 200 wells, most of which are in Harris County. Assistant City Attorney Anne Day said the city expected to file a legal brief with the court to assert its position that the judges should not throw out the rule of capture.

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