OKLAHOMA WATER LAW IN A NUTSHELL. Agricultural Engineering

Transcription

1 OKLAHOMA WATER LAW IN A NUTSHELL Shannon L. Ferrell OSU Dept. of Agricultural Economics Jeri Fleming OSU Dept. of Biosystems and Agricultural Engineering

2 Type of water law Riparian system Land touches water supply Generally applies to eastern US Prior Appropriation System First in time, first in right Generally applies to western US Hybrid System Oklahoma s system Groundwater Stream water

3 Groundwater Law Two types of aquifers Bedrock Alluvial Groundwater Law "Groundwater" means "Domestic use" means Private property right Subject to reasonable regulation Allocation system Ties groundwater to surface land

4 Groundwater Law Domestic use is not subject to regulation 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 fire protection

5 So what the heck is domestic use? 1) Household purposes

6 So what the heck is domestic use? 2) Watering farm animals up to normal grazing capacity of the land

7 So what the heck is domestic use? 3) Irrigation of land up to 3 acres

8 So what the heck is domestic use? 4) De minimis uses

9 Groundwater Law Non-domestic use Two acre-feet of water for every acre of land if no study If study then equal proportionate share Water cannot be wasted Depletion Pollution

10 Obtaining the right to use groundwater 1) You have to 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) The lands being dedicated to the permit must overlie a groundwater basin Can get permit Can t get permit

11 Obtaining the right to use groundwater 3) An OWRB groundwater use application must be filed. Location of the wells/relative distance to other groundwater wells The amount of water to be taken. The proposed use of the groundwater

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14 Obtaining the right to use groundwater 3) Following submission of application, the applicant must also file a notice of the application Notice must be published in a newspaper of general circulation in the county where the well is or will be located, Notice has to run in the newspaper for two consecutive weeks. Proof of publication of the notice must also be submitted to OWRB Notify, by certified mail, all landowners w/in 1/4 mile of each 10-acre tract wherein wells are proposed (or as directed by the Board) 4) If OWRB thinks its necessary, or someone requests it, a hearing on the application will be held.

15 Obtaining the right to use groundwater 5) Once these steps are completed, OWRB has to make four determinations: (A) whether the applicant owns the surface of the land where the well is or will be located or has a valid legal agreement to take groundwater from the property, (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.

16 Stream Water Law Water that is in a definite stream Regulated for the public by the state Subject to appropriation First in time, first in right Must be a beneficial use Use it or lose it Can submit a schedule of use Domestic use Water used by individuals for household purposes Does not require a permit

17 Obtaining rights to surface water (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.

18 Obtaining rights to surface water (stream water) 2) Following submission of application, the applicant must also file a notice of the application Notice must be published in a newspaper of general circulation in the county where the waterbody is located, Notice has to run in the newspaper for two consecutive weeks. Proof of publication of the notice must also be submitted to OWRB. 3) If OWRB thinks its necessary, or someone requests it, a hearing on the application will be held.

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21 Obtaining rights to surface water (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. In making this determination, the Board shall consider the availability of all stream water sources and such other relevant matters as the Board deems appropriate, and may consider the availability of groundwater as an alternative source.

22 Beneficial uses No statutory/court definition Agriculture Municipal Hydroelectric power Navigation Recreation, fish & wildlife propagation No priority of uses No preference of water use

23 Diffused Surface Water Sheet flow Rain Snow melt Flood Can be captured Can be owned by an individual The owner of the land owns water standing thereon, or flowing over or under its surface but not forming a definite stream.

24 Do groundwater withdrawals affect surface water & vice versa? We re now starting to understand the connection between groundwater and stream water. Jacobs Ranch LLC v. Smith (2006) showed that groundwater permits, in certain circumstances, could be impacted by the effect that groundwater use had on surface waters. Our systems of allocating groundwater and surface water implicitly assume that groundwater and surface water don t impact each other. If that s false, then what are we going to have to do?

25 Resources OWRB Permit applications and fact sheets on water permits Oklahoma s comprehensive water plan Well search request form Oklahoma State University Oklahoma Water Law Handbook Diffuse Surface ( Runoff ) Water Law and Rules Understanding the Different Kinds of Water Addressed by Oklahoma s Water Law Understanding General Stream Adjudications

26 Questions?