McAfee & Taft AgLINC - May 2013: Do you have enough water?

by McAfee & Taft
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Unless you are located in far southeastern Oklahoma, chances are that you could always use some extra water to grow your agribusiness. Oklahoma law requires that if you use groundwater or water from an Oklahoma stream for agricultural, industrial or other non-domestic purposes, you need to apply for and obtain a permit from the Oklahoma Water Resources Board (OWRB).

The OWRB reviews 12,688 permits for the use of almost 6.2 million acre-feet of surface and groundwater each year. Of that total, groundwater permits make up about 80% of all the active water use permits and account for close to two-thirds of all permitted water use in Oklahoma. Aside from handling all ground and streamwater use appropriation and permitting, the duties and responsibilities of the OWRB also include water quality monitoring, dam safety, floodplain management, water supply planning, technical studies and research, and water resource mapping.

The use of water for domestic purposes, which is defined as use by an individual or a family for household use, farm and domestic animals up to the normal grazing capacity of the land, and irrigation of a garden, orchard or lawn of three acres or less, does not require an OWRB permit. However, if you use water for any other purpose, including agricultural or industrial uses or for feeding operations, you will need to apply for one of the several permits the OWRB offers to Oklahoma landowners.

Streamwater Permits

Oklahoma streamwater is considered public water and is generally available to any person who obtains a permit, with prior permit holders establishing superior rights to later applicants. In order to obtain a streamwater permit, an applicant must establish that:

  1. Unappropriated water is available,
  2. The applicant needs the water and will put it to a beneficial use,
  3. The proposed use will not interfere with domestic use or existing permitted uses by any other permitted user, and
  4. Any use of the water outside its own stream system will not interfere with uses inside its stream system. A streamwater permit specifies the amount of water you are permitted to use and the length of time for which it is permitted. If you fail to use the permitted amount of water within the time specified on your permit, the OWRB retains the right to cancel or reduce your right by the amount of unused water.

Groundwater Permits

Unlike streamwater, which is considered public water, Oklahoma groundwater belongs to the land surface owner and may be used subject to the Oklahoma Groundwater Law. The OWRB is currently studying the state’s aquifers/groundwater basins and making determinations regarding the maximum amount that may be withdrawn from each aquifer in a given year (assuming a 20-year minimum usable life for the aquifer). This total is divided into an “equal proportionate share” for each acre of land overlying the aquifer. In most instances, a groundwater permit is issued to a landowner based on the equal proportionate share of that aquifer multiplied by the number of overlying acres owned or leased by the permit applicant. In order to obtain a regular or temporary permit, an applicant must establish that:

  1. The applicant owns or leases the land surface,
  2. The land lies over a groundwater basin,
  3. The proposed use will be beneficial, and
  4. Impermissible waste of groundwater will not occur.

Permitting Process

Both streamwater and groundwater permit applications are reviewed by members of the OWRB staff to determine whether the applicant has complied with all the elements necessary to obtain the requested type of permit. If the applicant has met these elements, the applicant submits public notice of his or her application, and the OWRB invites any neighboring landowner to submit written protests if that landowner disagrees that a permit should be issued to the applicant. If a valid protest is received during the notice period, an administrative hearing will be held by an OWRB hearing examiner. If the notice period passes without any protests being lodged, the OWRB reviews the applicable law and makes a final decision as to whether an applicant has established that he or she is entitled to the requested use of water.

Oklahoma law allows certain short-term permit applications for lesser amounts of streamwater or groundwater to be approved by the OWRB executive director. But these short-term permits cannot be extended beyond a maximum of 90 days.

Currently, the OWRB is extremely backlogged in processing permits, so if you anticipate needing additional water for agricultural or industrial uses in the upcoming year, it is never too early to start working through the permitting process. Please contact us if you have any questions regarding your current water use or future irrigation or business plans, and we can work with you to ensure that you are fully in compliance with the OWRB and that you have sufficient water to meet your needs.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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