Got Water?
(It’s not a rhetorical question)
Water Rights
in Oklahoma
Shannon L. Ferrell
Damian C. Adams
OSU Department of Agricultural Economics
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
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.
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.
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.
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;
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;
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.
“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.
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”).
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
Obtaining the right to use groundwater
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.
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.
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.
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.
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.
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.”
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.
Obtaining the right to use groundwater
• In other words, “waste by
depletion” is what you would most
commonly think of as “wasting the
water.”
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.
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.
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.
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 nondomestic 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.
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.
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.
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.
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.
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
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)
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
Potential Changes to Water Law
• Administrative Water Law (e.g., Florida)
• Federal Water Law
– Apportioning Interstate Water Resources
– Federal control of interstate water sales
Water Law Handbooks
• What water law materials would you
need?
• Water Law Handbooks
– Type of water, region
– For the lay audience
• Suggestions?