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Photo by Abby Wendle.

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Troubled Waters, Part 1

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Posted 09.04.12


This is the first installment of a three-part series about Oklahoma’s water wars, starting with the edition of This Land dated Sept. 1, 2012.

Troubled Waters, Part II: Urban vs. Rural

Troubled Waters, Part III: Balancing Act


 

On Memorial Day weekend, Lake Sardis’s Potato Hills South campground is packed with groups of guys in pickup trucks—the kind of guys who travel with just the essentials: boat, pole, radio, beer. Potato Hills South is an Army Corps of Engineers Class B campground—no sinks, no showers, pit toilets. But if you follow the trail that starts behind the picnic table at campsite #1, an easy fifteen minute stroll will take you to the Potato Hills Central Class A campground, populated by families and retirees in RVs, the kind of people who travel with boat, pole, radio, beer, plus chairs, rugs, gazebos, televisions, small dogs, satellite dishes and carved wooden signs identifying themselves—“The Scudders: Josh and Patty”—to fellow campers. The trail leaves you right behind the shower building, meaning you can avail yourself of Class A hot water for the pit toilet price.


Listen to Ginger Strand report on the alteration of the Arkansas river and local residents’ reactions:


As you hike the trail in quest of water, you’ll see mosses growing beneath cedars, along with prickly pear cacti. Cacti and moss coexisting: it’s an apt symbol for Oklahoma’s hybrid hydrology—one foot in the arid West and the other in the flood-prone East—a geologic fact at the root of the “water wars” currently brewing over this very lake. Like several other big reservoirs in Southeastern Oklahoma, Sardis is a federal project, and multiple far-away cities hope to dip a straw into it. In June 2010, over a year before releasing its 50-year Comprehensive Water Plan, the Oklahoma Water Resources Board sold “storage rights” to 90 percent of the Sardis water to Oklahoma City, which plans to build a pipeline and pipe Sardis water 200 miles and 600 feet uphill. The move triggered a lawsuit from the Choctaw and Chickasaw nations and a threat of litigation from local activists.

Understanding what’s at stake in the water wars—which will ultimately reach well beyond Lake Sardis—requires taking a look not just at Oklahoma’s unique climate and landscape, but its equally unique history. Water disputes are common across the West, ever more so as populations grow and the climate becomes more extreme, but Oklahoma’s stand-offs are unlike the rest, because here the problem is not—or not yet—scarcity.

A STATE IN TWO WORLDS 

Oklahoma has more eco-regions per square mile than any other state—from arid western plains to tallgrass prairie, cypress swamps, and Ozark forest. The western side of the state is part of the arid West—the land beyond the 100th meridian that John Wesley Powell declared no one should try to farm. The eastern side of the state has frequent rainfall and robust prairie rivers that tend to flood in the wet season. It’s not uncommon for part of the state to be awash in floods while another is parched with drought.

Oklahoma’s history is marked by both extremes. Shortly before the Dust Bowl and not long after it, floods on the Arkansas River swallowed whole towns. The problem has never been that the state doesn’t have enough water: it just doesn’t necessarily have water when and where it needs it.

The state’s variable hydrology means that its water laws are also a hybrid. Oklahoma recognizes riparian rights—the form of water law (common in the East) holding that property owners have the right to reasonable uses of waterways abutting their land. But it also recognizes prior appropriation—the doctrine whereby he who diverts the water first wins the right to continue diverting it. In the water-poor West, prior appropriation dominates, because most landowners do not have access to water except by diverting it.

Today Southeastern Oklahomans are crying foul, citing their property rights to the beds and banks of their waterways. Activists and tribes are trying to point out the pitfalls of trying to reboot the natural order. But massive human intervention is the only way agriculture and urbanization can happen in arid regions. America’s West has embraced a frontier mentality that enjoys  moving water around. Visit Hoover Dam and you’re greeted with soaring triumphal sculptures and booming recorded voices touting the Bureau of Reclamation’s accomplishment. There’s a heady whiff of ozone wafting by: the smell of man triumphing over nature. For much of its history, Oklahoma has breathed the same air.

KERR’S LEGACY: LAND, WOOD, AND WATER

“It is in our power,” wrote Senator Robert S. Kerr, “under the watchful eyes of God, to determine the physical form of the world in which we live. We can make it a paradise of ‘land, wood and water,’ or by neglect, permit it to become a desert. The choice is ours.”

Kerr, a mountain of a man with a good-old-boy grin, was born in 1896 in a log cabin in what was then Chickasaw territory. An oilman and a wheeler-dealer, he became governor and then a powerful Senator for the young state. In his memoir, he summarizes  his vision for Oklahoma with a quote from Brigham Young: “The earth is the Lord’s, and the mission of man is to subdue it and make it fruitful.”

Subdue he did. Kerr won the governorship on the theme of “more water,” promising urban Oklahomans that failure to develop water supplies was a “ceiling on your growth.” But even as governor he couldn’t accomplish what he could once he had access to federal dollars. Soon after being elected to the Senate, Kerr got himself appointed to the Senate Public Works Subcommittee for Rivers and Harbors. From there, he began diverting a huge river of federal cash into the goal of subduing Oklahoma’s waters.

When Kerr took office, Oklahoma had two completed federal reservoirs. During his administrations as governor and senator, 11 more were built, and when he died, 14 more were approved or underway. In his autobiography, Kerr bragged that the state had more federal reservoirs than any state save California. Dwarfing the typical municipal reservoir, the behemoths built by the Bureau of Reclamation and the Corps of Engineers hold hundreds of thousands of acre-feet of water. Lake Texoma holds more than two and half million, Lake Eufaula only a little less. One of the last  reservoir projects to be approved on Kerr’s watch was Lake Sardis.

But for all his talk of making the desert bloom, Senator Kerr’s reservoirs served not agriculture, but urban growth. Of all the federal reservoirs built on his watch, nine were used for municipal water supply; only four were used in any part for irrigation. Senator Kerr saw control of water as a means of helping cities grow and prosper. And they did, so much so that Oklahoma City is now turning itself into a water retailer. But in the agricultural parts of the state, farmers were also hard at work reshaping the state by moving massive quantities of water around—using the vast reserves underground to drive the Green Revolution.

MINING THE GROUNDWATER

The same year Senator Kerr went to Washington and began building lakes, a dour-looking Nebraska farmer named Frank Zybach applied for a patent. The device Zybach had invented would transform farming: the center pivot irrigation system. Throughout the ‘50s and ‘60s, Zybach and others worked on perfecting it, and by the seventies, pivot irrigation swept the Great Plains. The high-powered pumps and efficient distribution meant that more water could be pumped up from aquifers than ever before. Farmers could irrigate more land through multiple crop cycles. Today, agricultural irrigation is the nation’s largest single user of fresh water, and Oklahoma is no exception. Irrigation remains the largest water user in the state.

Pumping groundwater from aquifers is a strategy not unlike using your savings account to pay your credit card bills. As long as you’re refilling the account faster than you’re spending, all is well. But when water is withdrawn from an aquifer faster than rainfall and runoff can recharge it, the results are easy to predict. Debates raged throughout the second half of the 20th century about whether or not the nation’s aquifers were being depleted. Today there’s little doubt.

“We’ve become all too dependent on them, thinking it’s a resource that’s inexhaustible and that’s a ridiculous approach,” David Moon told me. Moon, formerly a practicing water law attorney, is now editor of The Water Report , a policy newsletter that’s required reading for many a water geek. I called him in his Eugene, Oregon office to get a big picture view of the water policy world.

Early controversy over how much the Great Plains aquifers were being drawn down focused on the Ogallala, an aquifer so prodigious it was believed for decades to be inexhaustible. That point of view has recently undergone a radical reversal.

“There is a consensus that the Ogallala, like many other aquifers, is being mined,” Moon said. “The use exceeds the recharge. You can say what you want, but you’re kind of starting to play on borrowed time.”

In fact, the Ogallala, which underlies Oklahoma’s Panhandle, does not recharge as readily as most aquifers. Only in Nebraska’s Sand Hills are the Plains porous enough to funnel water back into it. Geologists expect the Ogallala to reach critically low levels in the next 20 to 50 years.

But though the Ogallala’s depletion has caused enough concern for Plains states to begin eyeing the Great Lakes greedily, it is not the only aquifer to experience a drop in levels. Texas farmers were warned that they were affecting aquifer levels as early as the 1940s. The recent evaluations of Oklahoma’s Arbuckle-Simpson aquifer found that an expected 24-inch surplus was 20 inches less than that.

Mining the aquifers is an approach that also hinges on the “he who grabs first, gets most” philosophy of prior-appropriation doctrine. But in this case, the philosophy may die without any change of attitude: the water will simply run out.

‘WASTED’ WATER

“No man has the right to waste one drop of water that another man can turn into bread,” Senator Kerr wrote, quoting Brigham Young again. And in Kerr’s eyes, wasting water meant letting it run its course to the sea. Water not taken out and used—for drinking, industry or irrigation—was water gone to waste. That attitude has shaped Oklahoma’s approach to both its groundwater and its surface water. But thinking in the water world has changed radically.

“The mantra of ‘Well it’s there for use and if it goes out to the ocean it’s wasted’—I think we’ve gotten beyond that,” The Water Report’s David Moon told me. “The majority of people realize that there are in-stream uses that are necessary. The big shift in the water law is that recreation and fisheries needs are considered beneficial uses of water.”

“Beneficial” is a term of art in water policy: it means a use that upholds a water right. In prior-appropriation doctrine, if water is not put to beneficial use, the right to it can be lost. Traditionally, “non-consumptive” uses like recreation or guaranteeing flows to protect river life have not been factored into water policy. In most states now, Moon told me, that’s changing.

“They are either known as in-stream flows or ecological flows and  are accepted water rights with the same value as any other water right in most Western states,” he said.

Not yet, however, in Oklahoma. One of the most controversial things about OWRB’s, 50 year plan was its decision to leave nonconsumptive uses out of calculations of water supply availability. “There remains no clear consensus in Oklahoma,” the report stated, “on the most appropriate way to balance consumptive and nonconsumptive needs for water.” In other words, the state is hamstrung on its own contradictory approaches: should water be tied to the land through which it flows? Or is it acceptable—or even necessary—for man to improve on nature by redistributing water?

“Water is a basic necessity for all life, not just humans, but also the plants and animals,” David Ocamb countered. “Which is why in-stream flow is vital to consider.” Ocamb is director of the Sierra Club’s Oklahoma chapter, and he’d like to see legislation to guarantee in-stream flows where they are needed. He thinks the OWRB is moving in this direction. The Choctaw and Chickasaw nations, however, disagree. And once again, unique aspects of Oklahoma’s history are contributing to the issue’s complexity.

FROM WINTERS TO WATER WARS 

As Oklahoma became the nation’s 46th state, a Montana lawsuit about tribal water rights was working its way through the courts. The following year, 1908, the Supreme Court decided in Winters v. United States that in establishing reservations, the federal government had reserved water rights for tribes, and that those rights did not hinge on the amount of water currently needed or in use on reservation lands. In other words, the Indian water rights were grounded in the property, not prior appropriation. Winters has been a foundation for tribal water suits ever since.

But Oklahoma’s case is unlike other states’, since tribes here own their land in fee simple, rather than living on federally administered reservations. And there has been no clear court declaration on whether reserved water rights can be claimed for water used for purposes not intended by the original declaration. That makes it unclear whether the tribes can claim a water right to protect river life, fisheries, or recreation. The tribes, obviously, believe they can.

In the state-tribe standoff, the old conflict rears its head: will the state stay on the road Senator Kerr led it down, seeking to remake its rivers, valleys and plains? Or will a new era of water policy dawn in which the goal is less subduing nature than living in some kind of balance with it—even if that means accepting limitations on, say, how much water an urban area can use.

David Ocamb of the Sierra Club thinks the state will inevitably adopt the latter approach. He points out the popularity of fishing in Oklahoma as a sign that the state’s citizens value water in rivers and lakes just as much as water in pipelines and sprinkler systems.

“This is not a Republican or a Democratic issue, not a liberal or conservative issue,” Ocamb said. “It is just do we want the same quality of life for our grandchildren that our grandparents left for us.”

The question for Oklahomans, however, will be which part of the state’s contradictory legacy its citizens will embrace: the desire to live in harmony with the natural world, or the equally powerful urge to reshape it so it harmonizes with us.

 


This is the first installment of a three-part series about Oklahoma’s water wars, starting with the edition of This Land dated Sept. 1, 2012.

Troubled Waters, Part II: Urban vs. Rural

Troubled Waters, Part III: Balancing Act


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