JUNE 2024 | 9 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. appearance in the case. The district court denied the city’s and the OWRB’s motions to dismiss on May 7, 2018, concluding that no prejudice was suffered by either entity by not listing the city as a party. On June 1, 2020, the district court affirmed the OWRB’s order granting the city’s stream water permit. Petitioners appealed. The city filed a cross-appeal of the May 7, 2018, order denying the motion to dismiss.25 Before taking final action on a stream water permit application, the OWRB must determine from the evidence presented, pursuant to O.A.C. §785:20-405(a), whether: (1) Unappropriated water is available in the amount applied for; (2) 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; (3) The proposed use does not interfere with domestic or existing appropriative uses; (4) If the application is for the transportation of water for use outside the stream system wherein the water originates, the provisions of Section 785:20-5-6 are met.26 When these four conditions are met, the OWRB shall approve the permit.27 Taking each point in turn, the Oklahoma Supreme Court confirmed the OWRB’s order. Notably, point two requires consideration of “beneficial use” before a permit can be issued. Petitioners alleged that “environmental issues” should be considered such that a nonconsumptive instream flow requirement might be established.28 However, the court concluded, “General protection of environmental flows is not one of the statutory elements to be determined by the Board.”29 The Oklahoma Supreme Court decided Leo v. OWRB on Oct. 2, 2023, removing the final barrier to Oklahoma City’s application for a water permit. After all the preconditions were met, publication of certification by the U.S. Department of the Interior was published in the Federal Register on Feb. 28, 2024, making the settlement act effective.30 The settlement agreement is unique in the state of Oklahoma for several reasons. It brings state, city and tribal entities to the negotiating table to create an agreement that will mutually benefit rural and urban water interests in Oklahoma. The settlement agreement calls on Oklahoma City to engage in conservation measures before it may utilize water from Sardis Lake or the Kiamichi River. Additionally, the amount of water that can be taken by Oklahoma City will be based on the Oklahoma Department of Wildlife Conservation’s lake level management plan so that environmental and recreational needs in southeast Oklahoma are not diminished. The settlement agreement may be the one area of water law in Oklahoma that legally protects the sustainability of water resources. ABOUT THE AUTHOR Christine Pappas is chair of the Department of Politics, Law and Society at East Central University in Ada, home of Oklahoma’s only four-year Bachelor of Science degree in legal studies. She is also the policy and education coordinator for the Oka’ Institute as well as the director of ECU’s Master of Science in water resource policy and management. She has been a member of the OBA since 2010. ENDNOTES 1. Statement of Gov. Bill Anoatubby quoted in “Tribal Sovereignty at Forefront; Water Settlement Secures Tribes’ Historic Standing,” Tony Choate, Chickasaw Times, Dated: September 2016, updated 2024. 2. “Next Steps for the Water Settlement,” comments by Stephen Greetham, East Central University, Nov. 8, 2023. 3. Oka Holisso: Chickasaw & Choctaw Water Resource Planning Guide, Chickasaw Press: Ada, 2022. 4. “Tribal Water Rights: The Necessity of Government-to-Government Cooperation,” Susan Work, OBJ Vol. 81, No. 5, pp. 375-379, 2010. 5. “Modern Sequoyah: Native American Political Power in Oklahoma Politics,” Christine Pappas and Jacintha Webster in Hardt, Jan C. et al. ed. Oklahoma Government and Politics, Kendall Hunt: Dubuque, Iowa: pp. 43-62, 2024. 6. Id. 7. Oka Holisso, supra note 3. 8. McGirt v. Oklahoma, 591 U.S. _2020. 9. “Modern Sequoyah,” supra note 5. 10. “Lakes and Reservoirs.” Oklahoma Historical Society, https://bit.ly/4boTlb9. 11. Water Settlement, www.waterunityok.com. 12. Greetham, supra note 2. 13. OWRB v. Leo, 2023 OK 96. 14. Greetham, supra note 2. 15. “Tribal Water Rights: The Necessity of Government-to-Government Cooperation,” Susan Work, OBJ Vol. 81, No. 5, pp. 375-379, 2010, at 379. 16. OWRB v. Leo, 2023 OK 96. 17. Greetham, supra note 2. 18. Public Law 114-322. 19. “Tribal Sovereignty at Forefront; Water Settlement Secures Tribes’ Historic Standing,” Tony Choate, Chickasaw Times, Dated: September 2016, updated 2024. 20. Oka’ The Water Institute at East Central University, www.okainstitute.org. 21. “ECU Water Master’s Program Graduates 50th Student,” https://bit.ly/4bknsk7. 22. Federal Register, Vol. 89, No. 40. Feb. 28, 2024, p. 14700. 23. OWRB v. Leo, 2023 OK 96. 24. 82 O.S., §105.1. 25. OWRB v. Leo, 2023 OK 96. 26. Id. 27. 82 O.S. §105.12(A)(5). 28. OWRB v. Leo, 2023 OK 96. 29. Id. 30. Federal Register, Vol. 89, No. 40. Feb. 28, 2024, p. 14700.
RkJQdWJsaXNoZXIy OTk3MQ==