Oka Institute s 2017 Sustainability Conference: Current Activity in Water Law STEPHEN GREETHAM CHICKASAW NATION, SENIOR COUNSEL OCTOBER 11, 2017

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1 Oka Institute s 2017 Sustainability Conference: Current Activity in Water Law STEPHEN GREETHAM CHICKASAW NATION, SENIOR COUNSEL OCTOBER 11, 2017

2 Introduction and Overview What is water law within scope of this presentation? What is activity within scope of this presentation? National level Regional/local level Scope includes 7 litigations, 3 rulemakings, and 4 other matters Presentation will (attempt to) conclude with brief thematic summary

3 National-level litigation activity Significant litigation relating to Tribal water rights, under both Winans v. U.S. (1905) and U.S. v. Winters (1908) theories

4 National-level litigation activity Washington v. U.S., S. Ct. No (filed Aug. 21, 2017) What is the case? Arises from 2017 Ninth Circuit ruling regarding State s obligations to mitigate harms to fish runs for purposes of protecting Tribal fishing rights Why is it important? Case, which relates to the region s epic salmon wars, presents significant questions regarding the nature and extent of reserved Tribal water rights under Winans theory (i.e., moderate living standard ) and relief available as against State for protection of rights; would be first Tribal reserved rights case before SCOTUS since 1988 Where can I find out more?

5 National-level litigation activity (1) Coachella Valley Water District v. Agua Caliente Band of Cahuilla Indians, S. Ct. No (filed Jul. 6, 2017) ; and (2) Desert Water Agency v. Agua Caliente Band of Cahuilla Indians, S. Ct. No (filed Jul. 7, 2017) What are the cases? Arise from 2017 Ninth circuit ruling regarding Tribal reserved rights to groundwater Why are they important? Cases presents first explicit opportunity for SCOTUS to address reserved rights to groundwater under Winters theory; would be first Tribal reserved rights case before SCOTUS since 1988 Where can I find out more? (1) and (2)

6 National-level reg y activity Clean Water Act rulemaking What is going on? Perhaps more fairly denominated an anti-rulemaking, relates to regulatory construction of CWA statutory term waters of the United States and, thus, the reach of federal government s CWA regulatory jurisdiction Why is it important? New rule would restore the pre-2015 CWA regulations and represent Trump Administration s action in fulfillment of promise to roll-back Obama-era regulations and policies, many of which met strong opposition from the regulated community as well as advocates for State primacy in water regulation Where can I find out more?

7 National-level reg y activity NEPA reforms What is going on? Ongoing Administrative effort to streamline NEPA implementation, particularly in relation to energy and infrastructure projects; while purely Administrative, current actions tacitly build on 2015 FAST Act (e.g., ation.pdf); primary reforms include geographic and project-type prioritization, improved tracking and accountability, and further efforts to enhance inter-agency coordination and collaboration Why is it important? Depending on how it is done, effort may result in alteration of environmental review processes, which could lead to (a) expedited permitting processes and/or (b) increased litigation Where can I find out more? Executive Order No. 13,807 (Aug. 15, 2017) ( DOI Secretarial Ord. No (Sept. 1, 2017) ( CEQ Federal Register notice (Sept. 14, 2017) (

8 Other national-level activity Federal funding What is going on? Developing activity arising from Trump Administration s shift in federal Administrative priorities and budgetary policy; certain funding sources (e.g., U.S. Army Corps of Engineer s Planning Assistance to States and Tribes) have been zeroed-out, at least for the present, while others have been subject to new policy screens (e.g., deprioritization of climate change topics); alternatively, agency consolidation could lead to increased allocation of resources to Kerr Labs Why is it important? Federal dollars are critical to supporting sound water resource program implementation and ongoing research, particularly given Oklahoma s current budget shortfalls Where can I find out more? Keep your heads up with respect to ongoing budget processes, etc.

9 Regional/local-level litigation activity Oklahoma Farm Bureau, et al., OWRB, et al., Ok. S. Ct. No. 114,279 (filed Oct. 5, 2017) What is the case? Arises from challenge to OWRB s final MAY determination for the Arbuckle-Simpson, alleging reversible error stemming from what petitioners believe to be evidence of the Hearing Examiner s bias in favor of affirming the Board s action Why is it important? Another (potential) round of litigation in the ongoing efforts to implement Senate Bill 288 Where can I find out more? The parties

10 Regional/local-level litigation activity (1) Vulcan Materials Co. v. City of Tishomingo, Johnston County Dist. Ct. No ; and (2) Arbuckle Aggregates, LLC. v. City of Tishomingo, Johnston County Dist. Ct. No What are these cases? Arise from mining companies challenge to municipal ordinances enacted pursuant to 50 O.S. 16, which authorizes extra-territorial municipal nuisance ordinances Why are they important? Ordinances represent municipal effort to fill gap in State regulatory system as it relates to mine dewatering and concerns about local spring and stream impacts (i.e., dewatering activities occurring within specific subsurface watersheds on which public water supplies depend) Where can I find out more? The parties; also, e.g.,

11 Regional/local-level litigation activity Murphy v. Royal, Tenth Cir. Nos & (petition for reh g filed Aug. 21, 2017) What is the case? Arises from 2017 Tenth Circuit ruling on American Indian s habeas petition, in which court held the Creek Nation s treaty boundaries remain intact and, thus, State court criminal prosecution of petitioner fails for lack of jurisdiction Why is it important? Retained Tribal boundaries define the geographic scope of Indian country and are determinative of criminal jurisdiction, as well as civil jurisdiction in certain instances (including regulatory jurisdiction under certain federal environmental statutes); though in Oklahoma, assertion of jurisdiction under federal environmental statutes would implicate the 2005 Inhofe rider, and majority of other civil jurisdiction issues are generally subject to application of the highly fact-specific Bracker and Montana tests Where can I find out more?

12 Regional/local-level reg y activity Aquifer Storage and Recovery rulemakings What is going on? ODEQ is promulgating new rules (OAC 252:653) for the multi-phase permitting of ASR projects, focused on project feasibility and protection of groundwater resources (Oct. 10, 2017); OWRB rulemakings will be required, as well, to address water quantity issues associated with ASR project operations Why is it important? Use of ASR as a water supply strategy is growing throughout the West and elsewhere, including Texas, and Oklahoma is now building the regulatory framework for the development of these projects within its jurisdiction; City of Ada is now working on a limited-scope ASR project, which is intended to increase recharge for purposes of Byrds Mill Spring Where can I find out more? Saba Tahmassebi (ODEQ), RI2018.pdf; and Kent Wilkins (OWRB)

13 Other regional/local-level activity Osage Nation groundwater permitting What is going on? Developing activity arising from State s notifying Osage Nation that it objects to Nation s issuance of a groundwater use permit to its own gaming facility Why is it important? United States has previously supported Osage Nation on position that its groundwater rights stand separate and apart from State law, both substantive and procedural, and the current development could set table for direct State-Tribal engagement (e.g., litigation and/or negotiation) on water rights Where can I find out more? The parties, but for a take on the basics:

14 Other regional/local-level activity Implementation of the 2016 Chickasaw-Choctaw- Oklahoma-OKC water settlement What is going on? Parties to 2016 settlement continue efforts to fulfill negotiated preconditions to settlement s enforceability, with most recent activity centered on OWRB proceedings on Oklahoma City s amended permit to appropriate Sardis and Kiamichi waters (Oct. 10, 2017) Why is it important? Implementation of the settlement will impact future significant water right permitting and planning activities throughout region, including matters relating to central Oklahoma s use of Sardis and Kiamichi waters for longterm public supply and to any future effort to permit the use of Settlement Area waters outside of the State of Oklahoma Where can I find out more? The parties; see also bdpacket_1017.pdf

15 Other regional/local-level activity Other regional/local water planning activities Chickasaw-Choctaw Nations Water Atlas Arbuckle-Simpson Aquifer Drought Contingency Planning Project Arbuckle-Simpson Phase II study City of Ada ASR limited-scope pilot project Lake of the Arbuckles Watershed Stakeholder Group

16 Summary and Conclusion Intergovernmental conflict e.g., Federal-State (Murphy, CWA rulemaking), State-Tribal (Washington v. U.S., Oklahoma-Osage matter) Source of law conflict e.g., Federal-State (Washington, Agua Caliente cases), State-Tribal (Oklahoma-Osage matter) Regulator-stakeholder conflict e.g., Federal (CWA rulemaking, NEPA reforms), Tribal (Washington, potentially Murphy), State (Oklahoma Farm Bureau), Local (Tishomingo cases) Intergovernmental partnership e.g., Multi-level (2016 water settlement, potentially Murphy, potentially Oklahoma-Osage matter), Federal-State (CWA rulemaking), Intrastate (ASR rulemaking and pilot projects) Intercommunity partnership e.g., Multi-level (2016 water settlement, various water planning initiatives)

17 Chokma shki! Yakoke! Thank you! Stephen Greetham, Senior Counsel Chickasaw Nation 4001 N. Lincoln Boulevard Oklahoma City, Oklahoma (580)