Water issues are complex and easy answers few
BY JANET PEARSON Associate Editor
Sunday, February 12, 2012
2/12/12 at 2:51 AM
"Water has always been an issue here," says attorney Larry Derryberry matter-of-factly.
He's right about that. Tribal treaties addressed water issues as far back as the early 1800s.
But water is fast becoming one of the biggest issues ever before the state, and may prove to be the most significant of modern times. Some observers think anticipated legislative action could have ramifications and repercussions for many decades to come.
A major water-issue decision "is probably the most important decision we're going to have to make in our 12 years in the Legislature," said Rep. Eric Proctor, D-Tulsa, who is among a handful of lawmakers pushing legislation aimed at protecting Oklahoma's interests.
Arguably Oklahoma's most precious resource, water of late has spawned a series of legal developments, intensive study, growing debate and deepening controversy. At issue, among other things, are whether or not the state has "surplus" water it can sell off for profit, whether an evolving comprehensive water plan addresses all the relevant issues, what role Indian tribes have in any future transactions, and how "non-consumptive" uses of water - such as recreation and tourism - should be factored in to any decisions.
It all started years ago, when north Texas interests began coveting the free-flowing waters of southeastern Oklahoma, hoping to tap them to quench that region's seemingly insatiable thirst for growth.
Oklahoma lawmakers responded to Texas' overtures with a moratorium on out-of-state water sales, which led to a federal lawsuit. So far Oklahoma has managed to prevail in each phase of the legal battle initiated by the Fort Worth water district.
But while Texas interests regroup, the issue has only grown murkier. Last year the Oklahoma Water Resources Board granted Oklahoma City the rights to Sardis Lake water, a move that alarmed and angered many of the same stakeholders who already were inflamed over the prospect of selling water to Texas.
Among those upset by the Sardis decision were the Choctaw and Chickasaw tribes, which went to court recently seeking to protect what leaders say are the "tribes' and our citizens' interests." At issue in the tribal-state clash are the water rights within the Kiamichi River, Muddy Boggy Creek and Clear Boggy Creek basins.
The state water resources agency responded by authorizing the attorney general to file a lawsuit to resolve the tribal issues. On Friday, Attorney General Scott Pruitt asked the state Supreme Court to assume jurisdiction on the matter.
In a newspaper ad explaining their actions, tribal leaders say they filed their suit only because state leaders had refused to enter into "meaningful engagement ... on our shared water issues."
The Sardis decision "to unilaterally secure massive amounts of water from our treaty territory" forced the tribes to take steps to "defend our rights," the two tribes' chiefs asserted.
The tribes claim that the legal battle could end up being a "decades-long proceeding" and "would condemn Oklahomans to a generational fight that pits neighbor against neighbor and community against community on a scale that this state has never seen before."
Some state leaders insist nothing of the sort will occur, but similar cases in other states have dragged on for decades. And it's true that parties that have or may have a claim to water rights in those basins could get drawn into the legal action. Some estimates place that number in the hundreds, while others say it could be more than 7,000 entities.
Pruitt has said he hopes that the issue with the tribes can be settled through mediation, but by last week's end, that prospect seemed to be growing less likely.
Next up, lawmakers
As the legal landscape gets busier, Oklahoma lawmakers entered the fray. Among bills filed this session that would address water issues are:
The flurry of legislation underscores the need to address these issues. But notice the "D" after each of these lawmakers' names. "The challenge is getting the bills heard," said Cannaday. And that will be no small challenge.
- House Bill 2552, the so-called People's Water Act, by Proctor and Sen. Jerry Ellis, D-Valliant, which would require approval of the people to sell water out of state in addition to legislative approval;
- HB 2202 by Rep. Ed Cannaday, D-Porum, which would amend current language covering stream adjudication to provide better protection of personal property rights;
- HB 2333, by Rep. Brian Renegar, D-McAlester, which would direct the state water resources board to negotiate groundwater compacts or contracts with other states with which Oklahoma shares aquifers;
- HB 2334, also by Renegar, which would establish regional planning groups, recommended by the comprehensive statewide plan, to address water issues and needs specific to each basin;
- Senate Bill 1484, by Ellis, which would create a Water Conservation, Efficiency, Recycling and Reuse Task Force; and
- Senate Concurrent Resolution 27, by Ellis, which would put the Legislature on record "promoting sustainable practices in developing the natural resources of this state."
Waterborne issues have prompted stakeholders in southeast Oklahoma to band together to form Oklahomans for Responsible Water Policy, an organization that now boasts a membership of 12,000 from all across the state. Derryberry, a former state attorney general, was recently brought on board in the wake of the Sardis decision.
In a recent gathering to discuss the issues, members made it clear they feel their concerns are not being heard or addressed. "We have zero representation in Oklahoma City," said Debbie Leo, owner of a retreat located on an oxbow lake formed by the Kiamichi River. "We are under siege."
Leo said many property owners in the region are concerned that the area's unique combination of assets - "the heritage, the forestry, the wildlife, the history" - are all at risk of being destroyed.
Residents of the area saw last year's drought wreak unprecedented destruction on habitat and wildlife, and they wonder if large-scale consumption might have a similar effect.
Said Charlette Hearne, ORWP chairwoman and the owner of a retreat on the Glover River: "Our livelihood is on the line."
ORWP members are especially concerned about the focus on "excess" or "surplus" water - water that supposedly is available for export because it is not needed for consumption in Oklahoma. The advocates are worried that non-consumptive uses such as fishing, recreation, tourism - a major economic force in the region - are not being taken into account in planning and decision-making.
"They've never quantified these uses, and we have no legal protection for non-consumptive use," said Leo.
One Oklahoma State University study of Tenkiller Lake, the only site where non-consumptive effects have been studied, showed that the recreational value of the lake is significant and that these lake-users are sensitive to drops in water levels.
The advocacy group also points out that monthly and seasonal stream-flow variations also have not been adequately studied or measured. At times, the group pointed out, the streams even dry up. "The science isn't there," says Hearne.
The group is furiously attempting to get word out about its concerns. A legislative "water day" is scheduled on Monday to focus on the issues and members also are scheduled to meet with the governor next week.
"We feel like we won the battle with Texas. Now we're going to the people," said Hearne. "Now it's up to the people."
Original Print Headline: On the water front
Janet Pearson 918-581-8328
Cameron Martin of Kansas City, Mo., dives for a ball at the beach area of Sardis Lake near Atoka while visiting the state several years ago. MATT BARNARD/Tulsa World file