The biggest pump wins

Bart Sipriano's well dried up four days after Ozarka started pumping water nearby. Under the state's "rule of capture," he has no right to complain.

Bart Sipriano sits on the hood of a run-down pickup truck parked outside his shack and takes in a slice of East Texas he's proud to call his very own. There's a meadow, flowering weeds and tall grasses rippling in the breeze. There's an old barn, exposed to the elements these days, still scarred from the last tornado to hit the area. And there are a few chickens, squawking and scratching about, and a few hogs, squeezed into metal cages stacked one on top of the other outside the barn.

It used to be that on hot days--and there are plenty of those out here--Sipriano could sit under some shade trees and cool down with a glass of pure, crisp water from his well. He reckoned it was some of the best-tasting water in the country, his prize for living at the end of a dead-end road deep in the rolling hills of East Texas, near Athens.

Home was just as he wanted it, a place where no one and nothing would disturb him, except maybe the coyote that occasionally prowled at night.

Then one day in 1996, a fierce predator moved in up the road--a big, faceless corporate neighbor inspired to locate there not by the serenity of the land, but by the water that lies beneath it. Ozarka, the bottled water company headquartered in Irving, wanted to pump that pristine water, capture it, and sell it. And so it has under its familiar red label ever since then.

For nearly 20 years, Sipriano had relied on his well, burrowed some 100 years ago, to provide all the water he needed for drinking, cleaning, and cooking. But four days after Ozarka tapped into the same shallow aquifer, vacuuming out tens of thousands of gallons of water each day, Sipriano's well went dry.

Ozarka officials insist there's no cause and effect. At the time, all Sipriano knew for certain was that his only connection to clean water was lost.

"It was like living out in the desert," says the mild-mannered 67-year-old, who punctuates nearly every sentence by spitting on the ground.

Sipriano eventually sued Ozarka, claiming the company's water-pumping operation had sapped his well. But, it turned out, he had no case. Texas law grants landowners, with very narrow exception, an absolute right to withdraw water from their land, no matter how much harm it causes their neighbors. The law exists because rural landowners in Texas have long rebelled against any restrictions to using their land the way they please.

That philosophy might have made sense when times were simpler, when conflicts between neighbors were handled man to man, Texan to Texan, for better or worse.

Back then, rural folks lived on farms once owned by their parents, and their parents before them. Sipriano's neighbor, however, is a division of The Perrier Group, whose parent is Nestle, the world's largest food company, headquartered in Switzerland.

Country boys like Sipriano are finding out that their stubborn resolve to protect the mystique of property rights has allowed corporate neighbors like Ozarka the same right--to be left alone while it guzzles up all the water it can find.

As a consequence, a property owner like Sipriano finds himself out of water, out of luck.

"I'm no different. I've got my own property, and I want to be left alone on it," says white-haired Harold Fain, who joined Sipriano in suing Ozarka, alleging that the company's pumping drastically lowered the water level in his well. Fain and his wife live on the same land her father once worked to produce harvests of black-eyed peas.

"In my furthest dreams," Fain says, "I can't imagine doing something on my property that would hurt my neighbor. And if I could dream up something, I wouldn't do it."

The last thing these independent rural folks ever wanted was some fancy judge, politician, or bureaucrat telling them what to do with their land. But that's exactly what they're pleading for now.

Sipriano's lawsuit, which went nowhere at the trial and appeals court levels, has ended up at the Texas Supreme Court. The question facing state justices this week is what to do with 94-year-old case law that provides the basis for landowners' absolute rights to their water. That right is called the "rule of capture," and it essentially means that the water user with the biggest pump wins. All but six states have repudiated the rule of capture, which can be traced back to English common law, deeming it archaic and obsolete. But the state where bigger is better has refused to follow suit.

Connecticut, Georgia, Indiana, Louisiana, Massachusetts, and Texas are the holdouts still recognizing the rule of capture. All other states have deep-sixed it, some replacing it with a so-called "reasonable use" standard that says landowners may withdraw as much water as they want unless it causes unreasonable harm to a neighbor, such as lower water levels or reduced water pressure. Sipriano's lawyers are asking the Supreme Court to adopt the reasonable-use standard for Texas. Critics of the standard say it gives too much leeway to the courts and opens the door to frivolous lawsuits in which people with any water-related gripes can claim a neighbor's water use is causing them unreasonable harm.

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