Got Water? (It

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Got Water? (Its not a rhetorical
question)Water Rights in Oklahoma

• Shannon L. Ferrell
• Damian C. Adams
• OSU Department of Agricultural Economics

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Our Program Today

• Understanding the forms of Oklahoma water and
  the law surrounding them
• Surface water (its not what you think)
• Stream water
• Groundwater
• Forces shaping the future of water
• The Oklahoma Water Law Handbook

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The three forms of water

• Surface water
• Water that is either standing on the lands
  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.

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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.

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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.

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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

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Breaking down 60 O.S. 60

• 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

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Breaking down 60 O.S. 60

• 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.

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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 hasnt made it
  to a streambed. This is the only form of water
  that can be owned under Oklahoma Law.

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The use of groundwater shall be governed by the
Oklahoma Groundwater Law

• If the water is inside the bank of a stream, its
  in a whole other league well talk about it
  later.
• "Fresh water" means water which has less than
  five thousand (5,000) parts per million total
  dissolved solids.
• If its not fresh water, its considered salt
  water and we generally try to keep from mixing
  it with fresh water (odds are salt water will
  meet the definition of a pollutant).

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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

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Obtaining the right to use groundwater
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Obtaining the right to use groundwater

• If you are going to use groundwater for
  non-domestic purposes (anything that cant fit in
  the domestic purposes definition) then you have
  to get a groundwater use permit from the Oklahoma
  Water Resources Board.

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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.

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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.

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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.

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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.

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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.

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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.

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Obtaining the right to use groundwater

• In other words, waste by depletion is what you
  would most commonly think of as wasting the
  water.

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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.

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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.

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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.

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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.

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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.

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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.

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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 78520-5-6 are met.

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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.
• Theres no shall language requiring the
  issuance of the permit OWRB shall deny the
  permit if certain factors are not satisfied.

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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

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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)

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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 Countys 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

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Potential Changes to Water Law

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

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Water Law Handbooks

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