WATER LAW, WATER RIGHTS, HYDROPOLITICS PRIMER
DRAFT Property of Richard Wheatley Company LLC
OVERVIEW
Groundwater Rights
The Rule of Capture provides each landowner the ability to capture as much groundwater
as they can put to a beneficial use, but they are not guaranteed any set amount of water.
The advantage of this system is that it encourages economic development and maximum
utilization of the resources. Another advantage of this system is that it leads to minimal
government involvement in the operation of water wells. The primary disadvantage of
this system is the potential for overproduction of the aquifer system that may result when
each land owner attempts to protect the water right by drilling bigger, deeper wells.
Because no landowner is given a quantifiable or set amount of production capacity, all
landowners are encouraged to capture as much water as they can as quickly as they can.
Riparian Rights
Correlative groundwater rights represent limited private ownership rights similar to
riparian rights in a surface stream. The amount of groundwater right is based on the size
of the surface area which each landowner gets a corresponding amount of available
water. Once adjudicated, this maximum of water right is set, but this right can be
decreased if the total amount of available water decreases s is likely during a drought.
Landowners may sue others for encroaching upon their groundwater rights and water
pumped for use as on the overlying land takes preference over water pumped for use off
the land. This system benefits those who have low demand for water buy own large
expanses of property – such as ranches – and harms those who have a high demand for
water without correspondingly large tracts of land – such as cities and some irrigators.
Only California follows the correlative rights system for groundwater.
Reasonable Use Rule
The third system involving private ownership rights is the liability rule known as the
American Rule or Reasonable Use Rule. This rule does not guarantee the landowner a set
amount of water, but allows unlimited extraction as long as the result does not
unreasonably damage other wells of the aquifer system. Usually this rule gives great
weight to historical uses and prevents new uses that interfere with the prior use. The
determination of who gets a well and how much water may be pumped is usually made
by a court unless the state creates a regulatory agency to perform that function and the
primary issue is “reasonableness” of the use. The advantage of this system is its
flexibility in adjudicating competing uses of an aquifer system. Unfortunately, this same
system can lead to excessive litigation because well owners may sue at any time to
determine if a competing use is “reasonable,” a standard that may change with time. The
reasonableness standard is also highly dependent on the location of the suit and who ends
up in the jury pool. Marketing rights does not take place until the system is fully
adjudicated’ new users do not purchase groundwater rights until they are sure they cannot
obtain “free” water through litigation.
Many states, especially in the western United States, claim ownership of groundwater
and allocate the resource through an appropriative system just as they would a surface
right. Typically water rights are appropriated based on each aquifers sustainable yield and
once all rights are granted no further permits will be issued. Some states allow the
permits to be marketed and some states do not. When the water is not owned by the state
and the tort law proves be an inadequate means to prevent over production, states have
created administrative regulatory agencies to allocate ground water rights between
competing landowners. In this case the administrative law essentially supplants the tort
law, making the tort remedy (or lack thereof) irrelevant.
OKLAHOMA VIEW
Surface/Stream Water Rights Water Allocation and Ownership
Oklahoma’s early territorial lawmakers adopted the English Water Law Doctrine known
as “Natural Flow.” The natural flow doctrine has two primary components (1) a
prohibition against changing the quantity of water flowing in a stream and (20 a
prohibition on polluting a stream.
The owner of land owns water standing thereon or flowing over or under its surface
but not forming a definite stream. Water running in a definite stream, formed by nature
over or under the surface may be used by him as long as it remains there, but he may not
prevent the natural flow of the stream or the natural spring from which it commenced its
definite course, nor preserve nor pollute the same.
The natural flow doctrine distinguished waters flowing on the surface but not forming
a definite stream from water forming a “definite stream.” The concept of “definite
stream” is still important in Oklahoma water allocation law because, as with the natural
flow doctrine, the owner of the land still owns the surface water which is not a “definite
stream,” A landowner has the right under Oklahoma law to do whatever he wills with this
surface water because he absolutely owns it, However, if the water forms a definite
stream this landowner may be required to obtain permission of the Oklahoma Water
Resources Board (OWRB) to use the water. The land owner may also have a “riparian
right” to reasonably use water from a stream which runs upon or about his land.
The natural flow doctrine adopted by the territorial legislature was completely
impractical because it did not allow for consumptive uses. Most economically beneficial
uses are consumptive, so the natural flow doctrine was a hindrance to economic
development and was quickly abandoned in favor of the “reasonable use” doctrine.
The “reasonable use” doctrine allows a landowner whose land abuts a river (called a
riparian) to make reasonable use of water so long as use does not unreasonably interfere
with reasonable use of anther riparian landowner. To keep this confusing, the reasonable
use doctrine is more commonly referred to as the “riparian doctrine” or “riparianism.”
Riparianism remains an important principal in the law of water in Oklahoma today.
While riparianism was developing in Oklahoma, another doctrine known as “prior
appropriation” was also developing. Prior appropriation gives the senior user of water
superior rights – first in time first in rights. Under prior appropriation, the first user to put
water to use economically, beneficial use has a superior right to his allocation of water in
case of a shortage. Theoretically, under riparianism, all similar riparian users would be
cut back proportionally (i.e. reasonably) in times of shortage. Under prior appropriation
doctrine the senior user could completely shut off water to the junior user to ensure that
the senior user r3eceived his entire allocate amount of water.
In 1963, the Legislature attempted to reconcile these two systems of water allocation
by allowing OWRB to bring suit in district court to adjudicate the priorities to water in
the states stream systems. Any rights to use water which were not asserted at these
proceedings were foreclosed. However the Legislature did leave a small remnant of
riparianism which allowed a riparian landowner to use water for domestic and household
purposes. The fundamental rule in Oklahoma however became “Prior Appropriation”
under which each person knew the quantity of water to which he was entitled and his
priority among water users on a given stream system.
Franco-American Charolaise LTD v Oklahoma Water Resources Board which held
that adjudication to determine water priorities unconstitutionally took riparian owners
vested water rights without just compensation shattered any sense of clarity which the
1963 adjudication of rights had provided.
What is clear is that water deals will now have to account for the possibility of a
riparian owner asserting previously unused riparian rights. Riparian landowners arguably
do not have to apply for a permit to put stream water to use. The riparian owner could
merely begin using the water subject to later court decision that the use is
“unreasonable.”
Groundwater Allocation
Anyone proposing to use groundwater except for domestic purposes must apply for an
appropriate permit. The landowner must demonstrate a beneficial use which dos not
constitute waste. If the landowner does this the landowner must be given an allocation of
groundwater. The amount of groundwater which a landowner can use is proportional to
the maximum annual yield of the formation according to the following formula.
“His proportionate share shall be that percentage of the total annual yield of the basin or
subbasin, previously determined to be the maximum annual yielded …. Which is equal to
the percentage of land overlying the ???? groundwater basin of subbasin which he owns
or leases.”
Four types of groundwater allocation permits are available. (1) regular, (2) temporary,
(3) special, (4) provisional temporary. (4) is available only for 60 days and is nonrenewable but can be granted immediately by OWRB. The regular permit can only be
issued after OWRB has completed a hydrologic survey of the formation from which the
water is to be drawn. To date only a few of the "major” groundwater formations in
Oklahoma have been surveyed. Until the hydrologic surveys are completed for a given
formation, only “temporary” permits can be issued. However these nominally temporary
permits are renewed annually.
Two sweeping federal laws asserted control over all waters of the country. The Clean
Water Act and the Safe Drinking Water Act. The Environmental Protection Agency was
given the authority to enforce theses acts. Because of the “local” nature of water,
substantial regulating, enforcement and permitting powers were delegated to the states.
As a result, the Oklahoma Department of Environmental Quality, the Oklahoma Water
Resources Board, the Oklahoma Department of Agriculture, Food and Forestry, the
Oklahoma Corporation Commission and the Oklahoma Department of Mines control the
use of water.
Other waters of the state are impounded in lakes owned and operated by either the
Wildlife Department, cities, the U.S. Army Corps of Engineers, the U.S. Bureau of
Reclamation, the U.S. Fish and Wildlife Service, the Grand River Dam Authority, the
Division of State Parks, the U.S Forest Service or the Oklahoma Gas and Electric
Company.
The State of Oklahoma is a party to four interstate stream compacts involving all the
surface water that flows into or out of Oklahoma. Those compacts are: the Canadian
River Compact, the Kansas-Oklahoma-Arkansas River Compact, the ArkansasOklahoma-Arkansas River Compact and the Red River Compact.
All uses of surface and groundwater in Oklahoma for other than domestic/household
purposes must be permitted by the OWRB
GROUNDWATER use is a legal property right tied to ownership of the land. Applicants
must satisfy four legal requirements in order to obtain a groundwater permit.
• The applicant owns or leases the land from which the water will be drawn.
• The dedicated land overlies a groundwater basin.
• The water will be put to beneficial use.
• Waste of the water will not occur.
SURFACEWATER is publicly owned. Before permitting its use, the OWRB must
determine that:
• Unappropriated water is available in the amount applied for.
• The applicant has a present or future need for the water.
• The applicant intends to put the water to a beneficial use.
• The proposed use would not interfere with domestic/existing appropriative uses.
• If use of the water is to occur outside the stream system of origin, it would not
interfere with existing or proposed beneficial uses within the stream system.
OKLAHOMA WATER FACTS (Courtesy of OWRB)
• Oklahoma has approximately 78,500 miles of rivers and streams.
• Oklahoma contains approximately 1,120 square miles of water in its lakes and
ponds.
• Oklahoma has approximately 11,600 miles of shoreline.
• The Ogallala aquifer contains about 87 million acre feet of water in storage. The
aquifer supports approximately 3,200 high capacity wells and 206,000 acres of
irrigated land.
• Irrigation, is the number one use of water in Oklahoma, water supply is second
followed by livestock watering.
• The majority of the state’s surface water (approximately 60 per cent) is used for
public water supply, followed by thermoelectric power generation and irrigation.
• Irrigation accounts for 72 per cent of Oklaoma’s groundwater withdrawals.
• An estimated 34 million acre-feet of water (11 trillion gallons flows out of the
state each year through Oklahoma’s two major river basins, the Red and the
Arkansas. Approximately 18 times the states total annual water usage.
•
One acre-foot of water (the amount of water required to cover one acre of land to
a depth of one foot) equals 325,851 gallons or 43,560 cubic feet.
Your source for permitting.
Oklahoma Water Resource Board (OWRB)
Oklahoma Department of Environmental Quality (DEQ)
Oklahoma Corporation Commission (OCC)
Oklahoma Department of Mines (ODM)