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.

"Maybe it's time for the state to go on record saying if someone is transferring water out of the basin, and the capturing of that water is affecting adjacent property owners, then that someone can face criminal or civil penalties," he says.

McQueen has thought a lot about it. Sipriano had never even heard of the rule of capture before his well went dry. He now explains it this way: "The one who has the most money gets to do what he wants to do, I guess."

Harold Fain's internal alarm clock wakes him every morning at four a.m. on the dot.

The 60-year-old slips out of bed, trying hard not to wake his slumbering wife, tiptoes to the kitchen, and grabs a flashlight from a cupboard. He opens the sliding glass door, arousing his two dogs, Freggor and Ramey. The old dogs scramble to their feet and blaze a trail for Fain in the dark, leading him on a path to his wooden well house. Fain unlatches the door, shines the flashlight inside, ducks his head, and goes in.

He slides the concrete cap covering the well to one side, exposing the 37-foot-deep hole that bores down to the Carrizo aquifer. He grabs a measuring tape and lets a weight attached to the end fall down until it splashes water. Then he reads the measurement. Since Ozarka moved to town, Fain has made this his morning routine.

On his kitchen counter is a tablet of graph paper on which he logs the daily water level. It fluctuates with the weather, but Fain claims it dropped five feet a few days after Ozarka began pumping -- and that loss has remained constant.

The Fains' onetime black-eyed-pea farm now boasts a few cows and a satellite dish. The retired Southwestern Bell employee, disabled by throat cancer, has things besides farming on his mind. He wants to take his wife to Bossier City for a week at the casinos.

"I'd like to spend about $100 and try my luck with the slot machines, but I can't go on vacation because I'm afraid that I'll come back to no water," Fain says. "I'm afraid they'll pump me dry."

Ozarka officials say Fain has nothing to worry about. The company believes that scientific evidence can prove its pumping operation has not affected the wells of either Fain or Sipriano. The scientific merits of the case on either side have never been argued in court. The trial court ruled in Ozarka's favor without hearing technical evidence, because even if Sipriano and Fain could prove Ozarka affected their wells, the rule of capture held that they had no legal remedy.

Ozarka won on that basis, but the company may pay a heavy price for victory. If the appeal results in the Supreme Court overturning the rule of capture, thus granting Sipriano and the Fains a legal means to seek damages from Ozarka, the company will forever be known for having ended Texas property rights as the state has always known them. The hit the company would take is unjust, Ozarka officials say, because if the court rules that way, the case likely would be sent back for trial, where they're convinced they'll prevail on the strength of scientific evidence.

"The Supreme Court may change this 100-year-old law, even though we can show without a doubt that we haven't done anything wrong," says David Feckley, Texas natural resource manager for The Perrier Group and caretaker of Roher Spring. "Yeah, there's something ironic about that."

Feckley, a hydrogeologist, maintains that Sipriano's shallow well went dry because of the droughts in 1995 and 1996. He says dry weather probably also affected Fain's well, which is about 1.4 miles from the Ozarka boreholes. But one of Sipriano's two Palestine-based lawyers, Pam Rea, notes the coincidence that Sipriano's well, which had served him fine for almost 20 years, went dry four days after the pumping began and that the only time water returned was during a brief period one month later when the company temporarily shut down its operation.

Sipriano and the Fains would have their work cut out for them to prove Ozarka's operation is at fault. The Supreme Court, however, is hearing only legal arguments this week. A ruling will follow in the coming months.

Ozarka officials point to conclusions of the Texas Water Development Board, a state agency that analyzed the Ozarka pumping operation, to further its claim that the company is innocent.

In the winter of 1995, and again a couple of weeks after Sipriano's well went dry, agency officials visited the site, logging changes in water levels in several monitoring wells that Ozarka had scattered across the property.

Agency geologist David Thorkildsen says wells that were 600 to 700 feet away from the boreholes -- and, he emphasizes, at least 2,000 feet closer than Sipriano's well -- showed no appreciable signs of change while pumping was going on. "Hydrologically, you can't make any connection between what Ozarka is doing and what happened to the wells of those people," he concludes.

Rea, however, says Thorkildsen's research is tainted because it is based on monitoring wells and computer-sensor equipment installed and operated by Ozarka. "It's wrong to base conclusions on the company's data," she says.

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