Dean Couch Attorney at Law

Transcription

1 Dean Couch Attorney at Law

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4 After 30-Year Wet Spell 30-Year Dry Spell Coming?

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6 STATUTES AND RULES 60 O.S. 60 Water as property 82 O.S et seq. Stream water use 82 O.S Groundwater use 82 O.S OWRBgeneral authority 82 O.S Oklahoma Water Quality Standards Rules Official Oklahoma Secretary of State Title 785 OAC Unofficial

7 Appropriation Definite stream Beneficial use Diversion point Vested right Allocation Groundwater Reasonable use Well Prior right Apportionment Interstate Stream Compacts Volume (acre-foot) Flow (CFS, GPM) Waste GLOSSARY

8 CONVERSION CHART To convert from one water quantity measurement to another, multiply the existing measurement number by the number contained in the appropriate column at right. CFS (cubic feet per second) GPM (gallons per minute) MGD (million gallons per day) AC-FT/YR (acre-feet per year) CFS GPM MGD AC- FT/YR AC- FT/DAY AC-FT/DAY (acre-feet per day) For example, to convert 140 million gallons per day (mgd) to cubic feet per second (cfs), you would multiply 140 times 1.55 to come up with the desired conversion, 217 cfs. One acre-foot of water is equivalent to 325,851 gallons.

9 Water Rights what are they? (paper, wet water) Right to useof water accorded by law Wells A. Hutchins and National Reclamation Ass n (1946) Usufruct nature of right includes not fluid itself but its uses = property right (real or personal?) Incoporeal hereditament - intangible Ownwater right, but not water running in stream No one owns the corpus of running water Res communes, res nullius property of all, property of no one (Roman law) Includes right to undiminished quality? Riparian right natural flow or reasonable use, nuisance

10 Physical classes of water Surface/stream/lake water (S/W) public water Definite stream 1890, defined 1972 Natural channel, cut bed and banks Lakes, reservoirs, ponds, impoundments Groundwater (G/W) owned by owner of land Water under the surface of land not forming definite str. Underflow 1895 part of stream = public water subject to appropriation 1967 underground streams exclusion removed 1972 under surface outside cut bank of any definite stream Diffused surface (sheet) water on surface, not in definite stream

11 Diffused surface water

12 Definite stream natural channel underflow of definite stream

13 Stream water natural watercourse with defined beds and banksand definite source of supply; perennial or intermittent

14 Lakes, ponds, playas = stream water

15 Springs = stream water Byrd s Mill Spring City of Adawater supply Franco-American Charolaise, Ltd. v. OWRB, 1990 OK 44

16 Springs = stream water Jimmy Creek Spring photo from Quoetone family OWRB v. City of Lawton, 1977 OK 89

17 Permits to use stream water Appropriation of public water But subject to riparian domestic, and reasonable use? Priority in time shall give the better right Riparian can initiate and change use at anytime Beneficial use shall be the basis, measure and limit Before permit (application stage) present or future need, beneficial use (reasonable intelligence, reasonable diligence) Efficiency at permit issuance only, or continuing req.? Notice, administrative hearing Remedies complaint, suit for impairment, river call Futile call by juniors

18 RIPARIAN RIGHTS TO REASONABLE USE No OWRB permit, but less certainty Franco, and reasonableness for riparian rights Reasonableness is a question of fact to be determined by the court on a case-to-case basis. Factors courts consider in determining reasonableness include the size of the stream, custom, climate, season of the year, size of the diversion, place and method of diversion, type of use and its importance to society (beneficial use), needs of other riparians, location of the diversion on the stream, the suitability of the use to the stream, and the fairness of requiring the user causing the harm to bear the loss. See Restatement (Second) Torts 850A [1979]. Smith v Standolind Oil & Gas Co., 1946 OK 252 Oil company s use off riparian premises not unreasonable per se No Okla. cases source of title or unity of title Caution - relinquishment upon application

19 Maintaining SW Rights After permit issued (beneficial use, anti-speculation) Commencement of works in 2 years Notice and certificate of completion First use (7 years or SOU) Continued use once every 7 continuous years Continued beneficial use required? Annual water use reporting accuracy, but no meters Changes/transfers notice, hearing, beneficial use Cannot affect junior appropriators Later priority for new amounts

20 Groundwater Water under surface of land outside cut bank of any definite stream = owned by owner of land G/W is owned (unlike running water ) Presume percolating Canada v. Shawnee, 1936 OK 803 Use governed by Oklahoma Groundwater Law Ownership severable like minerals/o&g? Cf. EAAv. Day, 369 SW 3d 814 (Tx. 2012) Ownership of groundwater in place recognized Edwards Aquifer Authority restrictions = taking? Cf. Arbuckle-Simpson MAY order CV

21 Groundwater Under surface, outside cut bank of any definite stream Riverbank filtration well McKim&Creed, Florida

22 Groundwater outside the cut bank of any definite stream Cut bank of definite stream?

23 Permits to use groundwater Ownership rights Become surface owner Sever and own groundwater separately Domestic use reservation Lease from surface owner Use minimum surface Own easements well house and pipelines Use right permit from OWRB Allocation system acres overlying basin Max. annual yield regular or temporary permit Own or lease, overlies basin, beneficial use No waste by depletion, by pollution

24 Groundwater Basins and MAY Straw in bucket, but reasonable regulation for reasonable use

25 Maintaining groundwater rights Unlike SW, no loss for nonuse Annual water use reports required Willful failure to report = cancellation Waste before and after the fact By depletion e.g. unauthorized use Unpermitted well location, using more than authorized amt. Inefficient manner, excessive losses Use in a manner so water is lost to beneficial use fracking? By pollution OCC, but not ODAFFor ODEQ Amending permits Add uses and place of use New or replacement wells

26 Well Interference -spacing withdrawal rate, screening, perforating

27 Groundwater vs. stream water Separate in Okla. law, but not in science Ranney groundwater wells bank filtration Leo Ranney-1920s oil wells, 1930s London water Layne Company EPA surface or groundwater raw water requirements? Horizontal drilling vs. vertical drilling Conjunctive/Integrated Management Arbuckle-Simpson Groundwater Basin Within cut bank, but under bed of definite stream? Alluvium and terrace high bluff banks?

28 Definite stream beds and banks Water under stream bed? Cut bank of definite stream

29 Water rights auditing Wet water -great Rights on paper - necessary for defense Drought (less wet water) + increased demand = more complaints and controversies Agency (OWRB) enforcement possible Private party (injunction) actions Call of river Well interference Damages to property - $$ Adjudication court can review OWRB issued rights

30 Native American Claims settle, or adjudicate? s

31 WATER RIGHTS OIL AND GAS RECOVERY Short term use provisional temporary permit Stream water or groundwater No notice, no hearing But can be cancelled at any time

32 WATER RIGHTS OIL AND GAS Who applies RECOVERY Ricks Exploration v. OWRB, 1984 OK 73 (standing) Unit Petroleum v. OWRB, 1995 OK 73 Surface landowner May 28, 1985 Mineral Owner/operator Contractor Paying for water Non-severed - mineral owner, free water clause in lease? Severed surface owner, Surface Damages Act, transfer water well

33 WATER RIGHTS OIL AND GAS RECOVERY Long-term water use Water use not within Corp. Comm. jurisdiction Merritt v. Corporation Comm., 1968 OK 19 Enhanced oil recovery OWRB rule = long-term Cf. primary, secondary, tertiary, fracking Special rules on enhanced recovery process Addressing waste (by pollution) TCIWRAv. OWRB, 1984 OK 96 Cities Service Oil Co. v. TCIWRA, 1977 OK 176 Pollution defined 82 O.S (1)

34 Fracking and Use of Water

35 Fracking and Use of Water Average coalbed methane well 50, ,000 gal AF 1 AF Average horizontal shale gas 2 M to 10 M gal. 6 AF 30.6 AF Comparisons Avg. household domestic 5,000 10,000 gallons 160 acres crop irrigation 320 AF (104,272,320 gallons) Texas County irrigation 900 MGD NYC daily use OKCannual use 136,000 AF Norman annual use 15,000 AF 2% statewide use, cf. crop irrigation 40%, M&I 32%

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