Farm Bureau Brief Supports
Right Of Capture For Water

WACO — The Texas Farm Bureau, the state's largest agriculture organization, has filed a "friend of the court" brief in support of the state's 94 year-old "right of capture" water law. The action came in a landmark case now before the Texas Supreme Court.

The plaintiffs in the case — Bart Sipriano, Harold Fain and Doris Fain — all live near the East Texas town of Eustace. They filed suit against Great Spring Water of America Inc., also known as Ozarka Spring Water Co. The plaintiffs claim that water levels dropped in the area when Ozarka began pumping water on company property, also near Eustace. Sipriano and the Fains want the Court to replace "right of capture" with a doctrine called "reasonable use."

Ozarka has prevailed in lower courts, and the plaintiffs have appealed to the Texas Supreme Court. Now, farmers and ranchers are concerned about how the case will affect Texas' agricultural industry.

Ridge Pate, legal director of the Texas Farm Bureau, says the right of capture is a fundamental property right, and he claims it works well in actual practice. The right of capture doctrine allows for the creation of underground water districts, and approximately 40 such districts exist in Texas.

"Locally controlled groundwater districts can mandate rules on well spacing and water usage," Pate says, "So the law is adequate to address those concerns."

The area where Ozarka is pumping now has no underground water district, but Pate says local landowners can petition for one at any time. He says this would be a far better solution than going to the "reasonable use" rule.

"Reasonable use is hard, if not impossible, to define," Pate says. "It would be defined by courts and by juries."

Pate warns that "reasonable use" could lead to increased litigation, confusion and a windfall for attorneys. He also worries that "reasonable use" would lead to an unpredictable and changing water supply for agriculture. Texas is currently one of nine states that employ right of capture rules in water law.

Texas Farm Bureau President Bob Stallman, a rice farmer from Columbus, says the legislature, not the courts, is the proper setting to decide Texas water law.

"There is no point in substituting a system that works, one that has appropriate safeguards, for an uncertain and potentially litigious situation," Stallman said. "Local control through underground water districts, local people who understand the problems, is far better than a state authority that will try to make every situation fit an overall state plan."

Texas Farm Bureau, several other state agricultural organizations and existing underground water districts all support the rule of capture.

"It would be a serious mistake for the court to take away a fundamental property right," Stallman said. "Once those property rights dominoes start falling, who knows where it will stop? Changes in water law should be made in the legislature, by elected representatives."