Got Water? (It’s not a rhetorical question) Water Rights in Oklahoma

1. Got Water?(It’s not a rhetorical question)Water Rights in Oklahoma Shannon L. Ferrell Damian C. Adams OSU Department of Agricultural Economics

2. Our Program Today • Understanding the “forms” of Oklahoma water and the law surrounding them • “Surface” water (it’s not what you think) • Stream water • Groundwater • Forces shaping the future of water • The Oklahoma Water Law Handbook

3. The three “forms” of water • “Surface” water • Water that is either standing on the land’s surface or existing outside a defined stream (think “runoff”). • Stream water • Water in a definite, natural channel, with defined beds and banks, originating from a definite source or sources of supply. • Can include intermittent or “ephemeral” streams if that is characteristic of the sources of supply in the area. • Groundwater • fresh water under the surface of the earth regardless of the geologic structure in which it is standing or moving outside the cut bank of any definite stream.

4. The “Fount” of Oklahoma Water Law: 60 O.S. § 60 • The owner of the land owns water standing thereon, or flowing over or under its surface but not forming a definite stream. The use of groundwater shall be governed by the Oklahoma Groundwater Law. Water running in a definite stream, formed by nature over or under the surface, may be used by the owner of the land riparian to the stream for domestic uses as defined in Section 105.1 of Title 82 of the Oklahoma Statutes, but he may not prevent the natural flow of the stream, or of the natural spring from which it commences its definite course, nor pursue nor pollute the same, as such water then becomes public water and is subject to appropriation for the benefit and welfare of the people of the state, as provided by law; Provided however, that nothing contained herein shall prevent the owner of land from damming up or otherwise using the bed of a stream on his land for the collection or storage of waters in an amount not to exceed that which he owns, by virtue of the first sentence of this section so long as he provides for the continued natural flow of the stream in an amount equal to that which entered his land less the uses allowed for domestic uses and for valid appropriations made pursuant to Title 82 of the Oklahoma Statutes; provided further, that nothing contained herein shall be construed to limit the powers of the Oklahoma Water Resources Board to grant permission to build or alter structures on a stream pursuant to Title 82 of the Oklahoma Statutes to provide for the storage of additional water the use of which the landowner has or acquires by virtue of this act.

5. Breaking down 60 O.S. § 60 • The owner of the land owns water standing thereon, or flowing over or under its surface but not forming a definite stream. • The use of groundwater shall be governed by the Oklahoma Groundwater Law.

6. Breaking down 60 O.S. § 60 • Water running in a definite stream, formed by nature over or under the surface, may be used by the owner of the land riparian to the stream for domestic uses as defined in Section 105.1 of Title 82 of the Oklahoma Statutes, but he may not prevent the natural flow of the stream, or of the natural spring from which it commences its definite course, nor pursue nor pollute the same, as such water then becomes public water and is subject to appropriation for the benefit and welfare of the people of the state, as provided by law;

7. Breaking down 60 O.S. § 60 • [N]othing contained herein shall prevent the owner of land from damming up or otherwise using the bed of a stream on his land for the collection or storage of waters in an amount not to exceed that which he owns, by virtue of the first sentence of this section so long as he provides for the continued natural flow of the stream in an amount equal to that which entered his land less the uses allowed for domestic uses and for valid appropriations made pursuant to Title 82 of the Oklahoma Statutes;

8. Breaking down 60 O.S. § 60 • [N]othing contained herein shall be construed to limit the powers of the Oklahoma Water Resources Board to grant permission to build or alter structures on a stream pursuant to Title 82 of the Oklahoma Statutes to provide for the storage of additional water the use of which the landowner has or acquires by virtue of this act.

9. “The owner of the land owns water standing thereon, or flowing over or under its surface but not forming a definite stream” • i.e.: You can capture runoff that hasn’t made it to a streambed. This is the only form of water that can be “owned” under Oklahoma Law.

10. The use of groundwater shall be governed by the Oklahoma Groundwater Law • If the water is inside the bank of a stream, it’s in a whole other league – we’ll talk about it later. • "Fresh water" means water which has less than five thousand (5,000) parts per million total dissolved solids. • If it’s not “fresh water,” it’s considered “salt water” and we generally try to keep from mixing it with fresh water (odd’s are salt water will meet the definition of a “pollutant”).

11. Obtaining the right to use groundwater • 82 O.S. § 1020.3: “Any landowner has a right to take ground water from land owned by him for domestic use without a permit.” • Domestic use: • the use of water by a natural individual or by a family or household for household purposes, • for farm and domestic animals up to the normal grazing capacity of the land and • for the irrigation of land not exceeding a total of three (3) acres in area for the growing of gardens, orchards and lawns, and • for such other purposes, specified by Board rules, for which de minimis amounts are used

12. Obtaining the right to use groundwater

13. Obtaining the right to use groundwater • If you are going to use groundwater for non-domestic purposes (anything that can’t fit in the “domestic purposes” definition) then you have to get a groundwater use permit from the Oklahoma Water Resources Board.

14. Obtaining the right to use groundwater • 1) Important pre-req: you must either own the surface of the land where the groundwater will be extracted OR have a lease that explicitly allows the lessee to take groundwater from the property. • 2) Next, you have to complete the OWRB groundwater use application. • Location of the wells / relative distance to other groundwater wells. • The amount of water to be taken. • The proposed use of the groundwater.

15. Obtaining the right to use groundwater • 3) Following submission of application, the applicant must also file a “notice of the application” in local papers. • 4) If OWRB thinks its necessary, or someone requests it, a hearing on the application will be held.

16. Obtaining the right to use groundwater • 5) Once these steps are completed, OWRB has to make four determinations: • (A) applicant owns the surface where the well is or will be located or has a valid legal agreement to take groundwater, • (B) whether the affected land overlies a groundwater basin or subbasin, • (C) that the proposed use of the groundwater will be a “beneficial use,” and • (D) and that waste by depletion or pollution will not occur.

17. Obtaining the right to use groundwater • If you meet all of these criteria, the regulations say that a groundwater permit shall be issued. • However, there is a growing tension in groundwater allocation because permits must be based on the estimated yield of the groundwater basin, and our knowledge of hydrology is evolving.

18. Obtaining the right to use groundwater • What the heck is “beneficial use?” • “The use of such quantity of stream or groundwater when reasonable intelligence and reasonable diligence are exercised in its application for a lawful purpose and as is economically necessary for that purpose. Beneficial uses include but are not limited to municipal, industrial, agricultural, irrigation, recreation, fish and wildlife, etc.”

19. Obtaining the right to use groundwater • What the heck is “waste by depletion?” • Unauthorized use of wells or groundwater; drilling a well, taking, or using fresh groundwater without a permit, except for domestic use; taking more fresh groundwater than is authorized by the permit; taking or using fresh groundwater in any manner so that the water is lost for beneficial use; transporting fresh groundwater from a well to the place of use in such a manner than there is an excessive loss in transit; using fresh groundwater to reach a pervious stratum and be lost into cavernous or otherwise pervious materials encountered in a well ... drilling wells and producing fresh groundwater therefrom except in accordance with the well spacing previously determined by the Board; or using fresh groundwater for air conditioning or cooling purposes without providing facilities to aerate and reuse such water.

20. Obtaining the right to use groundwater • In other words, “waste by depletion” is what you would most commonly think of as “wasting the water.”

21. Obtaining the right to use groundwater • What the heck is “waste by pollution?” • Permitting or causing the pollution of a fresh water strata or basin through any act which will permit fresh groundwater polluted by minerals or other waste to filter or otherwise intrude into such a basin or subbasin ... or failure to properly plug abandoned fresh water wells in accordance with rules of the Board and file reports thereof. • In other words, “waste by pollution” means allowing a source of fresh groundwater to be contaminated.

22. Obtaining rights to stream water • Water running in a definite stream, formed by nature over or under the surface, may be used by the owner of the land riparian to the stream for domestic uses. • Definite stream: a watercourse in a definite, natural channel, with defined beds and banks, originating from a definite source or sources of supply. The stream may flow intermittently or at irregular intervals if that is characteristic of the sources of supply in the area.

24. Obtaining rights to stream water • Oklahoma follows the California Doctrine: a hybridization of riparian and prior appropriation doctrines. • Riparian doctrine: property owners who are “riparian” (meaning they own the property adjoining the surface water) have the superior right to use the surface water. • Prior Appropriation Doctrine: The first person to claim a use for the surface water has the superior right to use the water.

25. Obtaining rights to stream water • A riparian owner can take as much of a stream as they need for “domestic use” (same definition as for groundwater). • If someone wants to take surface water for non-domestic use, they have to “appropriate” it in a process that very roughly resembles the process for groundwater. • 1) Submit an application detailing where the water will be diverted, how much is needed, the proposed purpose for the water, and supporting calculations.

26. Obtaining rights to stream water • 2) Following submission of application, the applicant must also file a “notice of the application” in local papers. • 3) If OWRB thinks its necessary, or someone requests it, a hearing on the application will be held.

27. Obtaining rights to stream water 4) OWRB has to make the following determinations (and here is where it gets much funkier than groundwater): • (A) Unappropriated water is available in the amount applied for • (B) The applicant has a present or future need for the water and the use to which applicant intends to put the water is a beneficial use.

28. Obtaining rights to stream water • (C) The proposed use does not interfere with domestic or existing appropriative uses. • (D) If the application is for the transportation of water for use outside the stream system wherein the water originates, Oklahoma Administrative Code § 785:20-5-6 are met.

29. The major differences between applying for groundwater and stream water permits • The determinations that OWRB has to make with respect to the surface water permits are much more complex (and in some cases, more subjective) than those for groundwater permits. • There’s no “shall” language requiring the issuance of the permit; OWRB “shall” deny the permit if certain factors are not satisfied.

30. Potential Changes to Water Law • Conjunctive Use (e.g., Jacobs Ranch LLC, 2006) • Repeal or restrict private “ownership” of groundwater • Limit groundwater use to a % of recharge • Minimum Flows & Levels (or “In-stream Flows”) • Prioritize uses • Region • Type of use • Type of water (in favor of streamwater) • Recognize new uses • Environmental • Cultural

31. Potential Changes to Water Law • Add “public interest” standard • Streamwater permits • Helps environmental & recreational interests • Metering • Fines for “water theft” • Currently on the honor system • Conservation Districts & Pump Locks • Renovate Indian Water Rights (Winters Doctrine)

32. Potential Changes to Water Law • Separate Water Rights from Land • “Excess” Water Sales • 2007 • Upper Trinity Regional Water District (25 communities near Dallas-Fort Worth); 37 bn gallons of OK water/year (Choctaw County’s Boggy Creek Basin & Kiamichi River near Lake Hugo) • Tarrant Regional Water District; 100 bn gallons from Kiamichi Basin/year • OKC; 26 bn gallons/year from Kiamichi

33. Potential Changes to Water Law • Administrative Water Law (e.g., Florida) • Federal Water Law • Apportioning Interstate Water Resources • Federal control of interstate water sales

34. Water Law Handbooks • What water law materials would you need? • Water Law Handbooks • Type of water, region • For the lay audience • Suggestions?