The events of the last decade have caused Oklahomans to view water resources in three crucially new ways. These new understandings contrast sharply with the assumptions that undergirded our water policy for nearly a century. They have also set the stage for the conflicts that we are now experiencing. The first is perhaps obvious, but it is only recent events that have revealed how truly remarkable it is.
In Oklahoma we give water away. That’s just the kind of people we are, or, maybe, were.
Surface water in Oklahoma is public water, and the policy of Oklahoma has long been to make that water available at no charge to any member of the public who will put it to use. Thus, when Tarrant County, Texas, concluded that its efforts to convince Oklahoma to sell it water were not likely to bear fruit, it simply applied for a permit to get the water for free.
Tarrant’s application, backed by a lawsuit, to force the granting of a permit for 150 billion gallons of water was ultimately unsuccessful. It has nevertheless profoundly altered the way in which we view water. The possibility of selling water to North Texas has transformed questions of water policy from “Who gets to use the water?” to “Who gets paid for the water?”
This commoditization of water has driven much of what has come since. Tarrant’s court challenge was followed last year by the Chickasaw and Choctaw Nations’ own lawsuit. That suit seeks, in essence, a determination that the two tribes own all of the surface water in southeastern Oklahoma. Many understand this litigation and, indeed, all of the southeastern water issues as essentially binary. Urban versus rural. State versus tribal. Recreational use versus consumptive use. This is a mistake. There would be no dispute, or at most a much less significant one, if the conflict were just between urban central Oklahoma and its cities and rural southeaster Oklahoma and its tribes. There is a third dimension to the conflict, a dimension spoken of less but profoundly important, and that is a North Texas and its money. Water has always been seen as having value. It now is seen as having a price.
A “spring” is the name we give to the place where private property becomes public. Oklahoma law makes stream water public. Groundwater, though, is private. It belongs to the owner of the land above it. Historically, Oklahoma never focused much on where the two types of water intersect. This all changed in 2002. It was in that year that a group of Canadian County suburbs and a group of south central Oklahoma landowners came together in a plan to access the vast quantities of water in the Arbuckle-Simpson aquifer.
The brimming reserves of the Arbuckle-Simpson support a remarkable variety of springs and streams. Yet, the aquifer’s underground resources have never been tapped for much more than watering livestock. The Canadian County proposal exposed a serious shortcoming in Oklahoma water law—its failure to account for basic geologic reality. Ground water and surface water may be wholly separate in law, but they are intimately intertwined in fact. It is the same molecules that form both, and springs are the place where the one becomes the other. For that reason, it is simply not possible to pump large quantities of groundwater without affecting surface flow.
The effort to access the Arbuckle-Simpson for central Oklahoma municipal needs was stymied by a quick statutory change that limites withdrawal of water in the area to an amount that will not impact the local streams and springs. What this amount is remains a matter of debate and will likely also be a basis for litigation. More important, however, is the fact that the connection between private groundwater and public surface water is not unique to the Arbuckle-Simpson. It occurs across Oklahoma, from the Ogallala to the Ozarks. For that reason this conflict is not likely to be contained to a single region.
All water is already being used. As a matter of law, available stream water may be appropriated as long as it is put to a beneficial use. “Beneficial use” is broadly defined by law and can include almost any economic activity. One use conspicuously absent from the long list of uses deemed beneficial is the thing that the water is doing already—providing habitat for wildlife.
In the debates over the sale of water, the fresh waters of the Kiamichi often have been described as wasted, as they flow into the naturally salty Red River. The Red has been briny since the Pleistocene. Opponents of large-scale transfers note that the river’s saltiness has encouraged distinct native fauna and created ideal conditions for the more recently arrived striped bass prized by Texoma anglers. In their view the water some see as “surplus” is already in use.
The proposal to take into account non-consumptive, in-stream uses of water became perhaps the most significant controversy in the development of the state’s new Comprehensive Water Plan. In the end, the plan recommended a three-year process to evaluate how these in-stream flows can be taken into account in our law. Regardless of the outcome of this process, the issue has been will persist, because there is no water sitting around unused. Any decision to withdraw water from a stream is a decision to move it from one use to another.
In an era when the choices were between using the water yourself or not using it, there was no real conflict between southeastern Oklahoma and central Oklahoma. There was no fight between Arbuckle ranchers and those who relied on the flow from the springs. There was no battle, on this point at least, between the State and the tribes.
But that innocent age is past. We now see that all water is used, and that what I pump from my well can dry up your stream. Most importantly, we know that water is money. This is the nature of water policy in Oklahoma’s second century—it is zero sum and dollar based. That is why we will not stop fighting about water.
Miles Tolbert is a lawyer with Crowe & Dunlevy in Oklahoma City. He served as the Oklahoma Secretary of the Environment under Governor Brad Henry.
Originally published in This Land, Vol. 3, Issue 18. Sept. 15, 2012.