Dean CouchAttorney at Law

After 30-Year Wet Spell30-Year Dry Spell Coming?

STATUTES AND RULES

� 60 O.S. §60 – Water as property

� 82 O.S. §105.1 et seq. – Stream water use

� 82 O.S. §1020.1 – Groundwater use

� 82 O.S. §1085.1 – OWRB general authority

� 82 O.S. §1085.30 – Oklahoma Water Quality Standards

� Rules

� Official Oklahoma Secretary of State Title 785 OAC

� Unofficial http://www.owrb.ok.gov/util/rules/rules.php

GLOSSARY� 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

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 GPM MGD AC-

FT/YR

AC-

FT/DAY

CFS

(cubic feet per second) --- 450 .646 724 1.98

GPM

(gallons per minute) .00222 --- .00144 1.61 .00442

MGD

(million gallons per day) 1.55 695 --- 1120 3.07

AC-FT/YR

(acre-feet per year) .0014 .62 .00089 --- .00274

AC-FT/DAY

(acre-feet per day) .504 226 .326 365 ---

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.

Water Rights – what are they?

(paper, wet water)� “Right to use of 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

� Own water 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

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

Diffused surface water

Definite stream – natural channel

“underflow” of definitestream

Stream waternatural watercourse with defined beds and banks and

definite source of supply; perennial or intermittent

Lakes, ponds, playas = stream water

Springs = stream water

Byrd’s Mill Spring – City of Ada water supplyFranco-American Charolaise, Ltd. v. OWRB, 1990 OK 44

Springs = stream water

Jimmy Creek Spring – photo from Quoetone familyOWRB v. City of Lawton, 1977 OK 89

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

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

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

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. EAA v. Day, 369 SW 3d 814 (Tx. 2012)

� Ownership of groundwater in place recognized

� Edwards Aquifer Authority restrictions = taking?

� Cf. Arbuckle-Simpson MAY order CV-2013-2414

Groundwater

� Under surface, outside cut bank of any definite stream

Riverbank filtration wellMcKim&Creed, Florida

Groundwateroutside the cut bank of any definite stream

Cut bank of definite stream?

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

Groundwater Basins and MAY

Straw in bucket, but reasonable regulation for reasonable use

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 ODAFF or ODEQ

� Amending permits� Add uses and place of use

� New or replacement wells

Well Interference - spacing

withdrawal rate, screening, perforating

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?

Definite stream – beds and banks

Water under stream bed?

Cut bank of definite stream

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

Native American Claims –

settle, or adjudicate?

s

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

WATER RIGHTS – OIL AND GAS

RECOVERY� Who applies

� 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

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)� TCIWRA v. OWRB, 1984 OK 96

� Cities Service Oil Co. v. TCIWRA, 1977 OK 176

� “Pollution” defined – 82 O.S. §1084.2(1)

Fracking and Use of Water

Fracking and Use of Water� Average coalbed methane well – 50,000 – 350,000 gal.

� 0.15 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

� OKC annual use – 136,000 AF

� Norman annual use – 15,000 AF

� 2% statewide use, cf. crop irrigation 40%, M&I 32%

Dean Couch

(405) 235-5596

dcouch@gablelaw.com