Reference
Oklahoma
Your source for information about water rights from coast to coast
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Reference Oklahoma Your source for information about water rights from coast to coast |
| Type of state | Primarily prior appropriation, especially in the more arid western areas. |
| Water supply |
Supply is widely variable. The eastern part of the state is much like most of the eastern United States; west of Oklahoma City, it turns into arid Great Plains. |
| Water use |
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| Controlling law |
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| Water rights |
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| Interstate relations |
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| Litigation |
Three inherent tensions are found in Oklahoma's water law, and stream adjudications have been used as an imperfect vehicle for resolving these problems. First, prior to statehood in 1907, Oklahoma adopted both riparian and prior appropriation doctrines for the purposes of regulating the use of surface water. In 1963, Oklahoma's legislature attempted to grandfather riparian rights to the extent water was actually beneficially used, and to prohibit future riparian rights except for domestic purposes. With Franco-American Charolaise, Ltd. v. Oklahoma Water Resources Board, the Oklahoma Supreme Court declared unconstitutional the 1963 amendments to the extent that they altered traditional riparian rights. Yet, the court entertained for three years a motion to rehear the case and, in doing so, refused to officially release the Franco-American decision until 1993. The court found that the 1963 amendments did not give riparians proper notice of the diminishment of their riparian rights. Riparian landowners, as a result, were free to initiate reasonable new or expanded riparian uses without perfecting an appropriation. Both the legislature and Oklahoma Water Resources Board (OWRB) have responded in a hostile manner to the Franco-American opinion, with the legislature purporting to abolish riparian rights and the Board refusing to recognize them. The separation of groundwater from surface water is a second fracture in the system. Surface water is referred to as stream water and is defined as water running within defined beds or banks, even including the underground portion of a surface stream. Groundwater, by contrast, is all other underground water outside the defined channel of the surface stream. Stream water is governed by the prior appropriation doctrine and the surviving vestiges of the riparian regime. Groundwater is governed by the American "reasonable use" doctrine, modified in 1972 by a groundwater statute. Finally, surface water is divided between stream water, which flows in defined channels, and diffuse surface water flowing over the land. While landowners theoretically retain absolute control over diffuse surface water, the courts have leaned toward recognizing that any water on the surface, directly attributable to a stream, is governed by prior appropriation doctrine. In 1905, the territorial legislature adopted an adjudication and permitting system based on the model code prepared by Morris Bien of the U.S. Reclamation Service. Under this law, four adjudications were completed although the act contemplated the adjudication of the entire state. These adjudications produced the Tulsa Decree, completed in 1938; the Oklahoma City-Canadian Decree, completed in 1939; the Durant Decree, completed in 1955; and the Oklahoma City-Atoka Decree, completed in 1958. The water supply needs of major municipalities had prompted these adjudications. A fifth adjudication, involving a Bureau of Reclamation project on the Washita River to supply municipal water, was dismissed, reinstated, but never completed. A final adjudication, involving a Bureau of Reclamation project to supply municipal water to Norman, Midwest, and Del cities was initiated and dismissed. Because of the lack of progress in the 58 years following the 1905 statute, the Oklahoma legislature substituted an administrative adjudication in 1963. This adjudication involved the determination of various categories of vested rights, including unpermitted appropriative and riparian rights. Incorporating the results of the four previously-completed adjudications, this administrative canvass of vested rights was substantially completed by 1969. The 1963 statute provided, however, that these administrative determinations did not constitute an adjudication among the relative, vested rights. The administrative adjudication process was repealed in 1972; and, while judicial adjudication procedures remain on the books, no recent proceedings have been brought. Adjudication-type activity is now only found in Oklahoma's groundwater management. Under the 1972 statute, the water resources board must determine maximum annual yield for a groundwater basin before water right permits for new uses can be granted. The maximum annual use determination may result in a contested evidentiary hearing before the board. Once a determination is made for a basin, the board may grant regular permits. In the absence of such a determination, the board can only issue temporary permits. The maximum annual use figure for a basin (which assumes the groundwater will be exhausted in 20 years) is redetermined every 20 years. Oklahoma is part of the original Indian Territory, as numerous eastern tribes were resettled in the region commencing in 1825. Because of relative water abundance, the claims and uses of these tribes have not sparked major water right controversies in the state. |
| Analysis |