Ridenbaugh Press/Water Rights

Ahead of everything else, the Oklahoma City Oklahoman newspaper opined on December 17, water may be the top issue for the area in 2013.

The paper noted that “The city’s top decision-makers said resolution to a water rights lawsuit filed against the city and state in 2011 is close, and that they are optimistic a settlement agreement will be reached in 2013. Two prominent tribes — the Chickasaws and Choctaws — sued the city, state and other entities in 2011 over water rights in a broad swath of southeast Oklahoma that provides more than half of the drinking water in Oklahoma City and the rest of the metro. The tribes’ claim extends to the pipeline that actually transports the water into central Oklahoma. The lawsuit remains pending, but the parties are engaged in a parallel path of mediation.”

Oklahoma voters will be considering, along with much else, a specially water-oriented measure on their November election ballot: State Question 764.

A description (with argument in favor) from a presentation by the Oklahoma Water Resource Board:

$82 Billion need identified for Oklahoma’s
water and wastewater infrastructure over the next 50 years

OWRB’s five successful grant and loan programs can only satisfy 4% to 9% of the state’s projected financing demand

Perhaps the most important reason…

Ensure clean water for future generations

Small, medium and large communities ALL need access to low-cost financing

Greatest need in small- and medium-sized communities:

Historically, over 75% of OWRB’s financings went to these communities

OWRB programs allow communities access to more aggressive interest rates

This rate is often better than what most systems can get in the open market – SRF AAA and FAP AA+

Access to these rates saves systems and their customers $$$ over traditional financing options

OWRB programs are reaching full capacity OWRB will use the State’s pledge to leverage funds in the bond market as projects are ready to begin construction By leveraging against the pledge of $300 Million, OWRB will be able to fund approximately $3 Billion in infrastructure projects (largest estimated need in any one period)

This is NOT a Bond Issue or a Tax Increase – Just a pledge of credit

Access to reduced interest rate financing remains insufficient to meet demand

Increased costs must be borne by Oklahomans – water/sewer bills will increase Clean, drinkable water may not be available… or it will only be available at a much higher cost for future generations

The city of Enid, Oklahoma, is on the receiving end of a lawsuit fled by two residents who say the city has been been illegally pumping water that the residents have right to.

Elizabeth Rasar and Jean Rasar are seeking $75,000 in damages, saying that Enid took upwards of 1.4 billion gallons of water, since 1985, from a well located on their land.

The suit is not new – it was filed last fall – but it scheduled for a settlement conference in September.

While Oklahoma Governor Mary Fallin’s emergency drought declaration last week institutes state disaster relief measures, staff of the Oklahoma Water Resources Board continue working with water users and citizens to alleviate growing water supply problems.

According to OWRB Executive Director J.D. Strong, the OWRB is receiving dozens of inquiries every day either reporting drought-related water problems or requesting some type of technical or financial assistance. “While our data tell us when Oklahoma is in the midst of drought, it’s the people on the ground—the citizens of Oklahoma and our water user community—that let us know about the severity of drought impacts.” The OWRB administers water rights in Oklahoma, monitors the quantity and quality of surface and groundwater, and provides financial assistance to address water infrastructure needs.

Just last month, Strong appeared before the congressional Committee on Science, Space, and Technology to share information on Oklahoma’s ongoing drought impacts as well as examine recent federal efforts to improve drought monitoring and forecasting. More recently, agency staff met with emergency management, agriculture, environmental quality, and climate officials to coordinate State Drought Management Team activities. The OWRB chairs the Team’s Water Availability and Outlook Committee. Last week, the OWRB hosted a meeting of the Corps of Engineers’ Interagency Drought Management Committee, consisting of numerous state and federal water management agencies, which provided a briefing of the drought’s effects upon federal reservoir projects and their near-term ability to provide required water supply, navigation, hydropower and related benefits.

This is Oklahoma’s third major drought episode in the last six years. Once again, the statewide drought has drastically reduced river flows and lake and aquifer levels, causing severe impacts to household, agricultural, municipal, industrial, and recreational water users. As Oklahoma experiences one of its driest periods since 1936, the U.S. Drought Monitor reports that virtually the entire state is in the “severe” drought category; about 72 percent is considered “extreme.” Apart from the abnormally hot temperatures, the difference this year is that Oklahoma entered 2012 with an existing water deficit due to last year’s drought, Strong says.

During drought situations, including the current one, the OWRB receives frequent requests for help from water users experiencing reduced yields from domestic water wells. “Those individuals who don’t have access to a municipal or rural water system are particularly vulnerable to drought and dry periods,” Strong points out. “We can investigate the problem and provide information to the landowner on obtaining the services of a licensed well driller who can deepen their well or, if needed, construct an entirely new well. Of course, we encourage individuals to tie onto public water supply systems wherever possible.”

He adds that the agency often helps water users, including those who manage water systems, find alternative sources or secure emergency water from a stream, lake, or aquifer. If the OWRB is unable to provide direct assistance, they are directed to the Oklahoma Department of Emergency Management, Department of Environmental Quality, Corps of Engineers, Bureau of Reclamation, Grand River Dam Authority, USDA Rural Development, Rural Water Association, Municipal League, or others who can help.

During times of water use emergencies, the OWRB can also expedite the water permitting process by issuing short-term, interim permits. While the OWRB grants permits for the use of water from federal reservoirs, the Corps of Engineers also requires users to obtain water storage contracts. In drought situations, the Corps can issue emergency water withdrawal permits for use of less than one acre-foot (325,850 gallons) for domestic or industrial use.

Many water systems, especially older facilities, fall apart under the strain of greatly increased customer demand for water during drought. Through almost $2.7 billion in water and wastewater construction since 1983, the OWRB’s loan and grant programs have helped improve dramatically the drought resistance of treatment and distribution systems, according to Ford Drummond, Chairman of the OWRB.

“Where during the early 1980s we saw hundreds of communities and rural districts rationing water or experiencing system failure due to unprecedented demand on aging infrastructure, today only a handful of water systems statewide have been forced to institute mandatory water rationing. That is largely attributable to the fortification of Oklahoma’s water and sewer systems through OWRB financial assistance,” Drummond says.

The OWRB’s funding process can be accelerated for eligible systems experiencing drought-related problems, he points out, adding that the Governor’s drought declaration triggers an agency rule allowing up to $300,000 in OWRB grants to provide drought-related emergency aid for rural and municipal water facilities.

Bob Drake, who serves as Chairman of the OWRB’s Drought Committee, knows from his long experience in ranching near Davis that impacts to his business are only a microcosm of those inflicting ranchers and other Oklahomans throughout this extended drought episode. “Dry farm ponds, rising feed prices, dwindling herds, and now the extreme fire danger—a particular threat to dry pastureland—will affect Oklahoma ranchers, as well as consumers, for years to come. We must become more vigilant in preparing for Oklahoma’s inevitable droughts.”

Increased conservation is the key, Drake adds. “Conservation—along with wise development and infrastructure upgrades—is imperative, as recognized in the 2012 Oklahoma Comprehensive Water Plan Update and by the newly enacted Water for 2060 initiative. All water users must be fully committed to pursuing innovative strategies and to curbing wasteful practices and old habits that leave us more vulnerable to drought.”

Oklahoma’s water future looks much brighter thanks to the show of support from Governor Mary Fallin and legislative leaders during the session that adjourned last Friday, the director of the state’s water agency said May 30.

“On the heels of the most scientifically defensible and extensively vetted Water Plan ever developed by the state, the Governor and Legislature responded with perhaps the most meaningful collection of water policy legislation and funding in Oklahoma history,” according to J.D. Strong, Executive Director of the Oklahoma Water Resources Board. “Due to the courageous approach of State leaders in addressing Oklahoma’s many critical water problems, the dedication of Joint Legislative Water Committee members, and a significant educational campaign, we now have both the directive and tools necessary to meet head-on Oklahoma’s water challenges through revitalized water management and protection programs.”

First and foremost, Strong points out, water conservation took a giant leap forward through passage of Speaker of the House Kris Steele’s Water for 2060 Act, which makes Oklahoma the first state in the nation to establish a comprehensive, statewide goal of consuming no more fresh water in 2060 than is consumed today. A 15-member advisory council will be created to recommend appropriate water conservation practices, incentives and educational programs to accomplish this bold strategy, while at the same time ensuring that Oklahoma’s population and economy continue to grow and prosper.

“Throughout development of the 2012 Update of the Oklahoma Comprehensive Water Plan, time and again the public stressed the importance of eliminating waste and preserving our dwindling water supplies,” adds Strong. A related measure, HB 2835 by Rep. Scott Martin, will encourage widespread recycling of gray water. The new law exempts the use of up to 250 gallons per day of private, residential gray water from regulatory requirements when used for household gardening, composting or landscape irrigation, thus conserving fresh water supplies.

Equally important, legislators also rose to the challenge of meeting Oklahoma’s projected $82 billion water and wastewater infrastructure financing needs through HJR 1085 by Rep. Phil Richardson and Sen. Brian Crain. The resolution authorizes State Question 764 on the November general election ballot, which seeks voter approval of a new Credit Enhancement Reserve Fund. The crucial new Fund would enable the OWRB, which currently provides low-interest financing for approximately 70 percent of water and sewer infrastructure in Oklahoma, to increase its leveraging capacity. Should the measure fail, the agency’s Financial Assistance Program would be reduced to funding only five to ten percent of infrastructure needs over the next 50 years, ultimately resulting in increased rates for drinking water and sewer customers across Oklahoma. To date, the FAP has approved almost $2.7 billion in projects.

Last but certainly not least, last week’s budget agreement includes specific funding to expand and integrate the state’s water quality and quantity monitoring programs, another key provision of the OCWP.

“You can’t manage what you don’t measure,” Strong affirmed. “Through almost five years of public input central to development of the Water Plan, the citizens of Oklahoma made it abundantly clear that they want their water agencies to have the data and information necessary to ensure that sound water decisions are made. Governor Fallin and the Legislature responded with $2 million in additional appropriations with which the OWRB and Conservation Commission will expand and improve our data collection capabilities.” Most notably, the OWRB will use a portion of the funding to establish the state’s first comprehensive groundwater monitoring program. The Legislature also extended utilization of Gross Production Tax proceeds for OCWP implementation, including support of planning partnership opportunities, updates of hydrologic studies, and enhancement of water management and modeling tools.

In all, bills passed during the 2012 legislative session will accelerate implementation of four of the eight priority recommendations included in the 2012 OCWP Update (Water Quality and Quantity Monitoring; Water Supply Reliability; Water Conservation, Efficiency, Recycling and Reuse; and Water Project and Infrastructure Funding). Additional legislation providing for improved enforcement of water well drilling regulations and enhanced floodplain management rules address at least two OCWP supporting recommendations.

“We are off to a tremendous start on Water Plan implementation, but there is still much to do,” Strong emphasizes. “Regional planning, for example, was the most popular Water Plan recommendation among citizen participants because it allows them to engage more formally in how water resources are planned at the local level and managed by the state. However, enabling legislation was narrowly defeated due to the negative lobbying efforts of certain special interest groups. Additionally,” adds Strong,” we must redouble our efforts to work with Oklahoma’s tribal governments to resolve conflicting water issues. And we still need to ensure adequate protection of instream flows that are so critical to state and local tourism economies. So while the Water Board and our multitude of partners made great strides this year, primarily due to the steadfast support of our leaders at the State Capitol, we recognize that considerable work lies ahead.”

Secretary of the Interior Ken Salazar on May 16 announced that the Bureau of Reclamation will provide $250,000 to help study water supply issues in the Upper Washita River Basin as part of the national WaterSMART program. The funding provides federal support to states and local communities to address current or projected imbalances between water supply and demand and to work toward sustainable water supply solutions.

“Strong partnerships are crucial to creating a sustainable water and energy supply,” said Salazar. “The WaterSMART program is designed to foster local partnerships and support innovative solutions to the water challenges of the future. This funding will not only help ensure a stable water supply for businesses and local residents but also create jobs, enhance the environment and strengthen local economies.”

The Upper Washita River Basin is comprised of over 5,000 square miles of drainage area in west central Oklahoma. It includes the Rush Springs aquifer, a critical agricultural supply source that supplies many springs and streams and provides unique environmental, recreational, and cultural values to the area. The Bureau of Reclamation’s Washita Basin Project, comprised of both Foss and Fort Cobb reservoirs, provides 90 percent of the surface water supplies in the study area, including municipal water to 40,000 people and two power generation facilities. Both reservoirs are currently experiencing challenges due to aging, inefficient, and/or undersized infrastructure.

According to the recently completed 2012 Oklahoma Comprehensive Water Plan, demands are projected to increase substantively by 2060 for all uses in the study area. Under current permitting procedures, some depletion of the Rush Springs aquifer is forecast throughout much of the study area by 2020. These depletions may reduce flows of Cobb Creek, which contributes to Fort Cobb reservoir’s firm yield, and therefore could threaten the reliability of Fort Cobb reservoir as a supply source.

This study will build upon recent investigations into the water supply reliability of Fort Cobb reservoir, which show that the reservoir may provide enough water to meet the long-term needs of the area, including cities like Anadarko and Chickasha, but that the reservoir’s reliability is dependent upon risk factors associated with climate variability, depletions in the Rush Springs aquifer, and future demands projections. Preliminary results can be viewed within the draft report titled, Fort Cobb Reservoir Supply/Demand Study available at: http://www.usbr.gov/gp/otao/

The study will (1) augment an ongoing hydrologic investigation of the Rush Springs aquifer to accurately determine the amount of groundwater available for future appropriation; (2) develop a surface water allocation model to evaluate various management options, including protecting the future water supply capabilities of Foss and Fort Cobb reservoirs; and (3) evaluate alternatives to address infrastructure issues facing the study area, both now and into the future.

The study will be carried out through a partnership among the Bureau of Reclamation, the Oklahoma Water Resources Board, and the Foss and Fort Cobb Reservoir Master Conservancy Districts. The study will cost an estimated $700,000 and take two years to complete. The additional $450,000 will come from matching contributions by local partners and from the OWRB’s Oklahoma Comprehensive Water Plan.

The Oklahoma Water Resources Board has released a new program that facilitates online approval of provisional temporary permits, providing enhanced convenience to Oklahoma water users.

“This new application will provide better customer service, as well as improve employee efficiency, by vastly reducing the time involved in processing thousands of permit applications each year,” says J.D. Strong, OWRB Executive Director. “I’m extremely proud of our resourceful OWRB staff for developing this online tool entirely in-house,” adds Strong. The new application will benefit the state’s energy industry in particular by facilitating much quicker turnaround times on temporary rights to water needed for oil and gas exploration. Effective for a period not exceeding 90 days, provisional temporary permits are usually granted by and at the discretion of the OWRB Executive Director.

While they are the most common type of permit administered by the OWRB and facilitate the use of the majority of oil and gas production water, provisional temporary permits collectively represent minimal water usage. Most PT permits, including those specified for hydraulic fracturing, range from one to about thirty acre-feet of water. Regular permits issued for public water supply, irrigation, and other large-scale uses often authorize hundreds to thousands of acre-feet annually. And while significant growth is anticipated in the state’s oil and gas industry, that particular use sector is projected to account for only five percent of Oklahoma’s total water demand in 2060.

Online OWRB permit applicants must register for a web-based account, which facilitates the storage of common user-specific data (including payment information for the required application) on the site. At that point, customers will be provided an opportunity to specify the desired source of water and area of use, submit landowner lease and/or permission to access property, and satisfy other permit requirements. Approved applicants receive confirmation via email.

In 2011, the OWRB approved 1,960 total provisional temporary permits from both surface and groundwater sources statewide. Already this year, staff have processed and approved nearly 800 such permits, primarily due to oil and gas production using hydraulic fracturing technology, where water and other materials are injected under pressure to augment extraction. It has been estimated that more than 90 percent of all new oil and natural gas wells in the U.S. are hydraulically fractured.

The Oklahoma Water Resources Board announced March 22 that $250,000 in federal funding has been awarded to study western Oklahoma’s Upper Washita River Basin.

The funds are part of the U.S. Department of the Interior’s WaterSMART program, a partnership with western states to identify sustainable solutions to existing or projected imbalances between water supply and demand. The total cost of the Washita study is $700,000; federal funding will be matched by $450,000 from the OWRB’s Oklahoma Comprehensive Water Plan.

“The drought of 2011 and its devastating impacts point out how vulnerable we are to the vagaries of Oklahoma weather and it really brings home the importance of establishing reliable water supplies, especially in western Oklahoma. This multi-faceted study of the Upper Washita River Basin will do just that,” says J.D. Strong, OWRB Executive Director.

The comprehensive study will augment an ongoing hydrologic investigation of the Rush Springs aquifer, a prolific source of irrigation in the region, to accurately determine the amount of groundwater available for future appropriation. The study will also focus on development of a surface water allocation model that will evaluate various water management options, including those aimed at protecting the future water supply capabilities of Foss and Ft. Cobb Reservoirs.

“From a broader perspective, the Washita study is consistent with multiple initiatives included in the 2012 Update of the Oklahoma Comprehensive Water Plan. The study will utilize the OCWP’s extensive technical data, it is founded upon an active partnership between the state and regional stakeholders, and it leverages considerable federal resources to address critical water supply and infrastructure needs in west central Oklahoma,” Strong points out.

Experts from the Bureau of Reclamation will directly contribute to the study by identifying the water supply impacts posed by climate variability scenarios as well as formulating options to augment the ability of Foss and Fort Cobb Master Conservancy Districts, both owned and operated by the Bureau of Reclamation, to satisfy the region’s growing water needs. Foss Master Conservancy District serves the local communities of Clinton, New Cordell, Hobart, and Bessie while Ft. Cobb Master Conservancy District provides supply to Anadarko and Chickasha as well as power generation plants operated by Western Farmers Electric Cooperative and Public Service Company of Oklahoma.

According to the 2012 Update of the OCWP, demand for water in the study area is expected to increase 40 percent by 2060. The majority of that demand will be met by the Rush Springs aquifer and surface supplies, predominantly Foss and Ft. Cobb Reservoirs. The OCWP indicates that most of surface water in the Upper Washita is currently permitted, leaving little available for appropriation by current or future users.

The U.S. Supreme Court action has reaffirmed the State of Oklahoma’s ability to defend its water resources from out-of-state influences.

On Monday, the U.S. Supreme Court rejected the city of Hugo’s appeal of last September’s Tenth Circuit Court of Appeals ruling that denied the city’s attempt to sell 200,000 acre-feet of southeast Oklahoma water (65 billion gallons) to the City of Irving, Texas. In its original ruling, the federal Court of Appeals cited Hugo’s lack of standing to file a lawsuit against its parent state. The lawsuit—City of Hugo v. Nichols et al.—was filed against the Oklahoma Water Resources Board in 2008 in an attempt to secure water from southern Oklahoma for use by Irving, a large North Texas municipality.

“This important decision by the highest court in the land demonstrates the continued dedication and resourcefulness of Oklahoma’s team of water management and legal officials as we work diligently to fend off repeated attempts to undermine our ability to manage use of water within the state for the good of all Oklahomans,” says J.D. Strong, Executive Director of the OWRB.

Water in Oklahoma is protected from interstate transfer and sale through legislative and interstate compact restrictions and requirements. The State Legislature must also approve such transactions.

On February 10, the Oklahoma Attorney General filed a request on behalf of the Oklahoma Water Resources Board asking the Oklahoma Supreme Court to adjudicate water rights formally in three major stream systems in southeastern Oklahoma. That request was granted on February 23.

The AG also filed for dismissal of the federal lawsuit filed by the Choctaw and Chickasaw Nations claiming “prior and paramount” rights to and “dominion” over water within a 22-county area of southeastern Oklahoma.

The far-reaching claims raised by the Nations’ lawsuit, which they refused to dismiss, led to the State’s filing to initiate a general stream adjudication.

From a state information sheet:

Through general stream adjudication, the court confirms the existing water rights in a particular stream system. Every Oklahoman holding a water use permit from the OWRB in the Kiamichi, Muddy Boggy, and/or Clear Boggy Basin stream systems will receive a notice from the OWRB and will be provided with an opportunity to confirm the validity of their permitted water right(s). Those claiming a right to the use of the water in any of the three Basins will also be provided an opportunity to be heard regarding their respective claims. Ultimately, the court will enter a final judgment determining and confirming water rights, including the amount, priority, place and purpose of each use. The process should be relatively uncomplicated for those holding permits as those permits set forth the amount, priority, place, and purpose of those holders’ uses. Similarly, all riparian uses recognized by state law will be confirmed. However, the process could be considerably more complicated and time-consuming for those claiming water rights but lacking a permit (e.g., the Chickasaw and Choctaw Nations).

When Oklahoma was admitted as the 46th state in 1907, it was provided “equal footing” with the original states. Being so admitted recognizes Oklahoma’s sovereign authority to regulate use of the natural resources located within its boundaries. In the 100 plus years since, the State of Oklahoma has managed and protected its water resources. Not only has the State expertly performed this charge, it has enacted specific laws to protect local water users throughout Oklahoma and continues to aggressively defend in court its ability to enforce those laws. This defense includes provisions against the transportation of stream water out of its area of origin (stream basin) unless the basin’s long-term needs are first satisfied.

In August 2011, the Choctaw and Chickasaw Nations initiated a lawsuit against State of Oklahoma officials seeking total control over the water in 22 southeastern Oklahoma counties. The Tribes claim that their water rights are “superior and paramount” to those claimed under State
law and that their water rights and regulatoryauthority are “the supreme law of the land.” If successful, the Tribes’ claims could render all State permits and related water uses invalid. Tribal law would effectively displace State law.

More specifically, the Tribes claim in their lawsuit that the Oklahoma Water Resources Board, the State’s water management agency since 1957, cannot take action on water use permits from the Kiamichi, Muddy Boggy, and Clear Boggy Basin stream systems unless and until a comprehensive
adjudication—a formal legal determination—of all water rights within those basins is completed.

Consequently, on February 10, after the Tribes refused to drop their lawsuit and negotiate without litigation, the State formally petitioned the Oklahoma Supreme Court to settle the Tribes’
claims through such a comprehensive stream adjudication. Thus, the State has chosen to counter the Tribes’ direct threat to State sovereignty and
southeastern Oklahoma water rights through a commonly accepted, congressionally recognized process that will confirm the water rights of all claimants to water within the three identified stream systems.