A state lawmaker is seeking a "second opinion" on two critical issues arising from the proposed sale of Oklahoma water to Texas.
Rep. Clay Pope, Loyal, recently sent a letter in which he asked state Attorney General Drew Edmondson for an official opinion on the ownership of water in southeastern Oklahoma and the question of "downstream dependency."
A proposed compact between the state of Oklahoma and the Choctaw and Chickasaw Indian Nations would provide for cooperative water rights and water quality administration in 22 eastern and southern Oklahoma counties. However, the compact would not authorize the sale of any of that water, Pope noted.
A consortium of north Texas municipalities, that includes Dallas, is bidding to buy "surplus" water from southeastern Oklahoma. Pope, a Democrat, emphasized that any interstate water marketing agreement would have to be accomplished through a separate contract, which would be subject to approval by the Oklahoma Legislature.
The state-tribal compact was unveiled for public inspection Nov. 14. It must be approved by both tribes and the Oklahoma Legislature prior to being submitted to the U.S. Department of the Interior.
Pope asked Edmondson whether the Choctaw and Chickasa nations "have legal rights or ownership of this water beyond those enjoyed by non-tribal members?" If so, Pope continued, "What are they and how extensive are they?"
The fourth-term legislator also inquired whether a state, city or county "can waive the claim of an established 'down-stream dependency' for water," in a contract or some other legal instrument, such as the proposed state-tribal compact.
In other words Pope explained, if water sold by Oklahoma to Texas needed someday to be redirected elsewhere in Oklahoma, could the state of Oklahoma do so "without fear of legal action, or with assurance that no court would reverse this past waiver, due to the then-needs of the Texas cities or counties...?"
Pope is vice chairman of the House Committee on Agriculture and Rural Development, a member of the House Committee on Environment and Natural Resources and a member of the House Appropriations Subcommittee on Natural Resources.
It is not known when the Attorney General's Office will respond to the opinion, request but both questions have been addressed by other legal scholars.
Attorney Michael J. Brophy, a water rights specialist, in Phoenix, AZ, was retained by the city of Oklahoma City and the Oklahoma Water Resources Board two years ago to research the "Little Dixie" water rights issue. The city and the state split the $75,000 legal fee, ledgers reflect.
Brophy maintained that neither the Choctaw nor the Chickasaw nation owns the water that flows through the Kiamichi River Basin, in southeastern Oklahoma.
Choctaw and Chickasaw lands, and property of tribal members which the U.S. government is holding in trust for their benefit, "are likely to be found to have riparian rights or other common law rights to use water," Brophy wrote. "It is unlikely" that lands owned by the United States for the benefit of the Indian tribes or their members "would be found to have any reserved right to water," he contended.
Nevertheless, Brophy continued, "The experience of other states in litigating water rights claims of tribes has shown such litigation to be extraordinarily expensive in time, money and lost opportunity." Consequently, he said, "There is much wisdom in Oklahoma's current efforts to negotiate a compact on administration of the Kiamichi River Basin's water resources with tribal and other governments which have existing or possible future interests in the basin."
Meanwhile, Drew L. Kershen, the Earl Sneed Centennial Professor of Law, at the University of Oklahoma, was asked by the Choctaws, the Chickasaws and Gov. Frank Keating to research the "doctrine of downstream dependency."
For starters, Kershen pointed out, in a Nov. 11 letter, downstream dependency "is not a legal term that has been used in the past as the basis for legal decisions, statutory drafting or legal analysis."
Kershen asserted that the tribal nations and the state face "minimal risk" of a downstream dependency claim, if they proclaim their sovereign rights to Oklahoma waters and then put those resources to effective use.
The U. S. Supreme Court has consistently ruled that "the equitable apportionment of interstate streams between sovereigns protects the upstream state in its water rights and established water uses, despite the existence of water uses by citizens of the downstream state that may be adversely affected," Kershen observed.
Under Western water law, the Norman attorney related, water brought into a watershed by a developer is classified as developed water. Courts have decreed that a developer may recapture developed water and reuse it, "even in the face of claims by other water users that they have become accustomed to using the developed water," Kershen wrote.
The proposed compact provides that the Choctaw and Chickasaw nations and the state of Oklahoma would transfer the rights to the water in southeastern Oklahoma to a special State-Tribal Commission. Should that transpire, any entity which claimed contractual rights to that water would have only dependent, subservient rights, under the terms of the contract, Kershen declared. The State Tribal Commission would "be able to assert its superior rights in the water as against anyone claiming dependent, contractual rights."
Thus, wrote Kershen, no claims of downstream dependency by Texans would supersede the principal water rights of Oklahomans "or override the contractual terms of any sale of specified quantities of water" from southern Oklahoma to northern Texas.
As an added safeguard, Oklahoma would strengthen its hand in an interstate water sale contract if the purchaser "expressly agrees to a waiver of 'downstream dependency' claims," Kershen suggested.
The state-tribal compact would encompass "groundwater" and "stream water," in McCurtain, LeFlore, Haskell, Latimer, Pushmataha, Choctaw, Bryan, Atoka, Pittsburg, Coal, Marshall, Johnston, Pontotoc, Garvin, Murray, Carter, Love and McClain counties; Hughes County, south of the medial line of the Canadian River, plus portions of Jefferson, Stephens and Grady counties east of the 98th Meridian.
The compact defines "groundwater" as fresh water beneath the surface of the earth, regardless of the geologic structure in which it is standing or moving outside the cut bank of any definite stream within the boundaries of the compact.
The pact defines "stream water" as water in a definite stream and the water in all lakes, reservoirs, playas, gully plugs, and any other impoundments and water as it flows from the mouth of springs, if that water becomes stream water inside the compact area.