By L. Mark Walker and Reagan E. Bradford

In recent years, water disputes involving intrastate transfers of groundwater and interstate sales of surface water, and the Legislature’s intervention on both issues, have occupied our courts and dominated state news. Oklahoma’s updated Comprehensive State Water Plan is due in 2011, with ongoing efforts over the last several years, including local and regional citizen meetings, to identify the critical water issues facing the state over our next 50 years. Factor in the issue of global warming which looms in the background and it appears certain that water law will be a burgeoning area of practice in Oklahoma in the upcoming years. This article addresses the basics of Oklahoma water law that every practitioner should know.

GROUNDWATER

Under Oklahoma law, the owner of land owns the groundwater underlying such land.¹ However, the use of groundwater is regulated by Oklahoma Groundwater Law, 82 O.S. §1020.1, et seq. Landowners have the right to use groundwater for domestic purposes without obtaining a permit from the state.² Domestic use includes the use of groundwater for household purposes, for watering farm and domestic animals up to the normal grazing capacity of the land, for irrigation of gardens, orchards and lawns not to exceed three acres, and for other de minimus uses specified by the Oklahoma Water Resources Board (OWRB).³

In order to use groundwater for non-domestic purposes, a landowner must first apply for and obtain a groundwater permit from the OWRB.4 To obtain a permit, it must be demonstrated that;

• (a) the lands overlie a fresh groundwater basin or sub-basin;
• (b) the applicant’s proposed use is a beneficial use; and
• (c) waste as described in 82 O.S. §1020.15 will not occur.⁵

With respect to “sole source aquifers” as designated by the United States Environmental Protection Agency under the Safe Drinking Water Act, it must also be shown that the proposed groundwater use will not likely “degrade or interfere with springs or streams” which originate from the sole source aquifer.⁶ This requirement currently only applies to the Arbuckle Simpson aquifer in south central Oklahoma near Sulphur.

“Waste” of groundwater is prohibited, and waste includes such things as taking groundwater without a permit, using more groundwater than is authorized by a permit, using groundwater in a manner such that it is lost for beneficial use, transporting or using groundwater inefficiently such that excessive losses occur, and polluting groundwater.⁷

A “major groundwater basin” is a distinct underground body of water with substantially the same geological and hydrological characteristics which is capable of producing on average at least 50 gallons of water per minute for a bedrock basin or at least 150 gallons per minute for an alluvium basin.⁸ A “minor groundwater basin” is simply a basin which produces less than 50 gallons per minute for a bedrock basin or less than 150 gallons per minute for an alluvium basin.⁹

Hearings on groundwater permits and protests thereto are conducted by the OWRB pursuant to Oklahoma’s Administrative Procedures Act (APA) set forth in 75 O.S. §250, et seq.¹⁰ Similarly, appeals of OWRB decisions on groundwater permits are governed by the APA provisions regarding appeals as set forth in 75 O.S. §318, et seq.

The OWRB is charged with the responsibility of conducting hydrologic studies and making “maximum annual yield” determinations for each groundwater basin and sub-basin in Oklahoma.¹¹ The maximum annual yield is the amount of groundwater per acre which each landowner will be allowed to take and use each year for non-domestic purposes. This amount is sometimes referred to as the owner’s “equal proportionate share,” and it assumes that, if every landowner with land overlying the basin took its full equal proportionate share each year, the basin would be depleted in 20 years.¹² Thus, Oklahoma Groundwater Law has been referred to as a “mining” law because it allows for the mining and depletion of the groundwater. Of course, all of the owners with lands which overlie the basin do not normally take and use their full equal proportionate share and therefore, as a practical matter, Oklahoma’s aquifers have never been fully depleted under the existing system.

Where the OWRB has made a maximum annual yield determination for a basin, groundwater permits for such basin are considered to be “regular permits.” Regular permits last for the remaining life of the aquifer.¹³ For those aquifers where a maximum annual yield determination has not been made by the OWRB, only a “temporary permit” may be obtained.¹⁴ Temporary permits must be revalidated annually.¹⁵ The annual renewal occurs automatically upon the filing of a water use report unless a third party protests the renewal, in which case a revalidation hearing is held. Temporary permit holders are allowed to use two acre feet of groundwater per year for each acre overlying the aquifer which is covered by the permit.¹⁶ Once the OWRB makes a maximum annual yield determination for a basin, the temporary permit holders in such basin are issued regular permits.¹⁷

All holders of groundwater permits must file annual use reports with the OWRB reflecting the volume of groundwater used under each permit during the preceding year.¹⁸ These reports are mailed by the OWRB to the permit holder each January and must be completed and filed with the OWRB within 30 days of receipt.¹⁹ Willful failure to file an annual use report may result in cancellation of the groundwater permit.²⁰

Violations of Oklahoma Groundwater Law, which would include use of groundwater for non-domestic purposes without a permit, use in excess of permitted amounts, and waste of groundwater, are considered a misdemeanor and are subject to penalties between $25 and $250 per offense.²¹

STREAM WATER

Under Oklahoma law, the owner of land also owns the surface water standing on or flowing over the landowner’s property but not in a “definite stream.”²² A “definite stream” is defined as “a watercourse in a definite, natural channel, with defined beds and banks, originating from a definite source or sources of supply,”²³ which includes rivers, streams, creeks and their associated ponds and lakes. Thus, a landowner can capture diffused rainwater on his land before it has entered a definite stream and use such water as he or she pleases. However, once the surface water enters a definite stream, it is subject to certain limitations as described below.

With regard to surface water in definite streams, also known as stream water, the Oklahoma Supreme Court has previously held that riparian owners, i.e. owners whose land touches the stream,²⁴ have the right to make “reasonable use” of the stream water, which can include domestic and non-domestic uses of such stream water so long as they do not materially injure other downstream riparian owners.²⁵ However, current statutes purport to restrict the riparian owner’s right to use stream water solely to “domestic use” as described above,²⁶ and the OWRB takes the position that this defines the extent of the riparian owner’s private right to use stream water notwithstanding the Oklahoma Su-preme Court’s prior opinion.

Aside from the rights of riparian owners to use stream water, all other stream water is considered “public water” which is subject to appropriation for the benefit and welfare of the people of Oklahoma²⁷ pursuant to the Oklahoma Stream Use Law, 82 O.S. §105.1, et seq. “Appropriation” is the process by which an individual or entity can acquire the right from the state to use this public stream water.²⁸ The issuance of a stream water permit from the state creates an “appropriative right to use stream water” in favor of the permittee.²⁹ Because stream water is subject to both the private use rights of riparian owners and appropriated rights to use public stream water, Oklahoma’s stream water law has been described as a dual system of water rights.

The “appropriation system” which the state administers in granting stream water permits is premised upon the “first in time, first in right” principle, that is, in times of stream water shortages, the earlier, i.e. senior, permits are entitled to take in preference to the more recent, i.e. junior, permits. Priority is based upon the date the permit application was filed.³⁰ Under the appropriation system, in order to take and use water from a definite stream, an application for a stream water permit must be filed with the OWRB.³¹ To obtain a permit, it must be demonstrated that:

• (a) There is unappropriated water available in the amount applied for;
• (b) The applicant has a present or future need for the water and the use to which the applicant intends to put the water is a beneficial use;
• (c) The proposed use does not interfere with domestic or existing appropriative uses; and
• (d) If the application is for the transportation of water for use outside the stream system wherein the water originates, the proposed use must not interfere with existing or proposed beneficial uses within the stream system.³²

After a permit is granted, construction of water works must begin within two years, otherwise the permit expires.³³ Stream water permitted for use is forfeited and returned to the public pool if it is not put to a beneficial use within seven years.³⁴ However, an extension may be granted if the permitee demonstrates that the total amount of water authorized by the permit cannot be put to beneficial use within seven years.³⁵ The OWRB may not revoke a permit at a forfeiture proceeding if the permittee shows circumstances beyond the control of the permittee.³⁶

As with groundwater permits, all holders of stream water permits must file annual use reports with the OWRB.³⁷ These reports are also mailed by the OWRB to the permit holder each January and must be completed and filed with the OWRB within 30 days of receipt.³⁸ Willful failure to file an annual use report may result in cancellation of the stream water permit.³⁹

Violations of Oklahoma’s stream water regulatory system may result in penalties. The unauthorized use, transfer, waste or severance of stream water is a misdemeanor under Oklahoma law.⁴⁰ Each day of violation is considered a separate violation subject to criminal penalties.⁴¹ The OWRB may bring an action in district court to enjoin unauthorized activities and may go upon private property to enforce the stream water regulations.⁴²

CONCLUSION

Because the amount of available water is limited by natural forces, but the demand for water continues to expand as the population and commercial activity grows, it is more important than ever that Oklahoma attorneys be able to inform their clients about the basics of Oklahoma water law. This article provides the basic framework underlying the ownership and the regulation of use of groundwater and stream water in Oklahoma.

• 1. 60 O.S. §60.
• 2. 82 O.S. §1020.3.
• 3. Id. at §1020.1(2) and OAC 785:30-1-2.
• 4. Id. at §1020.7.
• 5. Id. at §1020.9.
• 6. 82 O.S. (2007 Supp.) §1020.9(A)(1)(d) and §1020.9(B); OAC 785:30-3-5(f).
• 7. 82 O.S. §1020.15.
• 8. Id. at §1020.1(3).
• 9. Id. at §1020.1(9).
• 10. Id. at §1020.6(c).
• 11. Id. at §1020.4-1020.5.
• 12. 82 O.S. §1020.5(B).
• 13. OAC 785:30-5-1(f).
• 14. 82 O.S. §1020.11(B).
• 15. Id.
• 16. Id.
• 17. OAC 785:30-9-6.
• 18. 82 O.S. §1020.12.
• 19. OAC 785:30-5-9(a).
• 20. 82 O.S. §1020.12(A) and OAC 785:30-5-9(c).
• 21. 82 O.S. §1020.22.
• 22. 60 O.S. §60.
• 23. 82 O.S. §105.1.
• 24. 60 O.S. §60.
• 25. Franco-American Charolaise Ltd. v. Oklahoma Water Resources Board, 1990 OK 44, 855 P.2d 568, 573 (Okla. 1990).
• 26. 82 O.S. §105.1(2).
• 27. 60 O.S. §60.
• 28. OAC 785:20-1-2.
• 29. OAC 785:20-1-1.
• 30. 82 O.S. §105.2(B).
• 31. Id. at §105.9.
• 32. Id. at §105.12; It is Oklahoma’s policy that only excess or surplus water should be used outside of its area of origin and citizens within an area of origin have a prior right to water originating therein. 82 O.S. §1086.1(A)(4). To that end, the OWRB is supposed to perform a review of the needs within each area of origin every five years. 82 O.S. §105.12(B).
• 33. Id. at §105.15(A).
• 34. Id. at §105.17(A).
• 35. 82 O.S. §105.15.
• 36. Id. at §105.18(C).
• 37. OAC 785:20-9-5.
• 38. Id.
• 39. Id.
• 40. 82 O.S. §105.20.
• 41. Id.
• 42. Id.

L. Mark Walker is a shareholder and director with Crowe & Dunlevy PC. He has practiced for over 25 years in the areas of natural resources, environmental and energy law. Mr. Walker is a fellow in the American College of Environmental Lawyers, and is listed by Chambers USA, The Best Lawyers in America and Super Lawyers in various practice areas. Mr. Walker is a frequent writer and speaker on water, environmental and natural resource issues.

Reagan E. Bradford is an associate with Crowe & Dunlevy PC, and practices in the energy and natural resources department. Mr. Bradford earned a B.A. from the University of Oklahoma in 2005, and graduated with his Juris Doctorate with highest honors from the University of Oklahoma College of Law in 2008, where he was elected to the Order of the Coif.