MESSER-BOWERS v. STATE EX REL. WATER BD., 90,783.

• Decision Date: 05 July 2000
• Docket Number: No. 90,783.,90,783.
• Citation: 8 P.3d 877,2000 OK 54
• Parties: MESSER-BOWERS COMPANY, INC., Mark M. Mayo, Trustee of the Mark M. Mayo Revocable Trust dated November 30, 1994, Wilma J. Mayo, also known as Billie J. Mayo, Trustee of the Wilma J. Mayo Revocable Trust dated December 21, 1994, and Floyd Sears, Appellants, v. STATE of Oklahoma ex rel. OKLAHOMA WATER RESOURCES BOARD, and Kronseder Farms, Inc., Appellees
• Court: Oklahoma Supreme Court

8 P.3d 877

2000 OK 54

MESSER-BOWERS COMPANY, INC., Mark M. Mayo, Trustee of the Mark M. Mayo Revocable Trust dated November 30, 1994, Wilma J. Mayo, also known as Billie J. Mayo, Trustee of the Wilma J. Mayo Revocable Trust dated December 21, 1994, and Floyd Sears, Appellants, v. STATE of Oklahoma ex rel. OKLAHOMA WATER RESOURCES BOARD, and Kronseder Farms, Inc., Appellees

No. 90,783.

Supreme Court of Oklahoma.

July 5, 2000.

Clark McKeever, Enid, Oklahoma, for Appellants.

Dean A. Couch, Oklahoma City, Oklahoma, for Appellee, Water Resources Board.

James R. Barnett, R. Thomas Lay, Kerr, Irvine, Rhodes & Ables, Oklahoma City, Oklahoma, for Appellee, Kronseder Farms.

W.A. Drew Edmondson, Attorney General, Cannon Miles Tolbert, Assistant Attorney General, Oklahoma City, Oklahoma, Amicus Curiae.

HODGES, J.

¶ 1 This appeal raises several issues surrounding the decision of the Oklahoma Water Resources Board (Water Board) to issue a groundwater use permit for land on which Kronseder Farms, Inc. (Kronseder), plans to construct a concentrated swine feeding operation. For the reasons below, this matter is remanded to the Water Board for an evidentiary hearing which conforms to today's decision.

¶ 2 In February,1996, Kronseder applied to the Water Board for a permit to withdraw 4,520 acre feet of groundwater per year from 45 proposed wells located on 4,520 acres in Woodward County, Oklahoma. The application was later amended to 2,920 acre feet per year from 27 wells, subject to future amendment for the full 4,520 acre feet per year. The application was opposed by surrounding landowners, Messer-Bowers Co. Inc., Mark Mayo, Billie Mayo, and Floyd Sears (Landowners) who own ranch land adjacent to the Kronseder property. They asserted that Kronseder's use of the requested groundwater would diminish and contaminate their supply of groundwater from wells and springs.

¶ 3 The Kronseder property consists of a large tract of 4,280 acres and a narrow strip of 240 acres which extends south from the large tract to within a mile of the north bank of the North Canadian River. Over half of the water produced will come from this 240 acre strip and will be carried by pipe to the swine facility. No swine operations will be located on that strip of land.

¶ 4 When completed, the facility would house 142,000 pigs. About one third of the groundwater would be used for livestock consumption. Most of the remaining two thirds will be used to wash pig manure from the facilities and into retention lagoons. The effluent and fresh groundwater will then be applied to 1,760 acres of native grass.

¶ 5 On July 16, 1996, staff of the Water Board conducted a hearing. The Water Board approved the application at its regular meeting on October 8, 1996. Appellants sought judicial review of the Water Board's order in the District Court of Woodward County. The District Court remanded the matter to the Water Board on an issue unrelated to today's review. The Water Board again approved the application on September 9, 1997. The District Court upheld the order on October 30, 1997. The Court of Civil Appeals affirmed that decision and this Court granted certiorari review. The decision of the Court of Civil Appeals is now vacated and the cause is remanded to the Water Board with directions.

Groundwater or Stream Water

¶ 6 A preliminary issue in this dispute is whether the permit proceeding should have been conducted under the stream water use statutes, Okla. Stat. tit. 82, §§ 105.1-105.18 (1991 & Supp.1999). Title 82 defines "Groundwater" as "fresh water under 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". Okla. Stat. tit. 82, § 1020.1(1) (Supp.1995). A "definite stream" is a "watercourse in a definite, natural channel, with defined beds and banks, originating from a definite source or sources of supply." Okla. Stat. tit. 82, § 105.1 (Supp.1995). The significance of the classification is that "[t]he owner of the land owns water standing thereon, or flowing over or under its surface but not forming a definite stream." Okla. Stat. tit. 60, § 60 (Supp. 1988). Thus, groundwater and diffuse surface water are owned by the surface landowner subject to beneficial use. See Okla. Stat. tit. 82, § 1020.7 (Supp.1993) ("Any person intending to use groundwater shall make application to the Board for an appropriate permit. . . ."). Stream water on the other hand, is "public water and is subject to appropriation for the benefit and welfare of the people of the state as provided by law." The landowner "may use [such] water for domestic uses." Okla. Stat. tit. 82, § 105.1A (Supp. 1993).

¶ 7 Landowners argue that when the Kronseder application was filed the Water Board should have determined whether there were natural springs in the area and whether granting the permit would affect water running under the surface or the natural springs themselves. They base their argument on the construction of title 60, section 60 found in Oklahoma Water Resources Board v. City of Lawton, 580 P.2d 510 (Okla.1978) There, a surface landowner wanted to encase a prolific spring and divert the water for recreation, housing development, and commercial development. The water which flowed from the spring ran into a nearby creek and ultimately into Lake Lawtonka, the major source of water for the City of Lawton. Id. at 511. The issue was whether the spring water should be classified as stream water or groundwater for purposes of an appropriation permit from the Water Board. On appeal, this Court held that "when natural spring water forms a definite stream, the water in the stream and the spring itself, from its inception, is to be classified as stream water and appropriated as such." Id. at 513. The opinion noted that this was true despite the fact that the source of all springs is groundwater. Id. at 511. The Water Board in this matter determined that "the water applicant [Kronseder] intends to use is clearly groundwater." Landowners' expert opined that numerous wells on Kronseder's land would draw down the water table to the extent that the natural springs on neighboring land would go dry. Kronseder's expert testified that the watertable would not be lowered by Kronseder's use of water to the extent the springs would go dry. The Water Board's order stated that "the premise that the Applicant's use will cause a spring to go dry has not been established as a matter of fact." The Water Board also rejected Landowner's legal argument that by taking so much water that the springs go dry, Kronseder is in effect taking stream water and therefore must proceed under the stream water statutes. The Water Board specifically found the water to be "fresh water under 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." Okla. Stat. tit. 86, § 1020.1 (Supp. 1995). Therefore, it proceeded under the groundwater statutes.

¶ 8 The Water Board properly determined that the groundwater statutes apply. This Court's holding in City of Lawton was that when natural spring water forms a definite stream, the spring from its inception is to be classified as stream water and appropriated as such. The "point of inception" referred to the point at which the spring, and thus the stream began, not to the ultimate source of all spring water which is a groundwater formation. This understanding is consistent with the definition provided by Landowners' expert that a spring is the point at which the water table surfaces. Thus, when the groundwater surfaces as a spring and forms a stream, it is at that point that the stream water statutes apply.

¶ 9 Here, Kronseder was not making application to withdraw water from a spring or a stream. It sought a permit to drill several new wells and utilize existing wells to drain water directly from the groundwater basin. As the Water Board determined, the water to be withdrawn by the Kronseder wells is groundwater subject to regulation by the Oklahoma Groundwater Law. The remaining issues in this appeal involve the permit proceedings under the groundwater statutes.

The Permit Requirements

¶ 10 The policy underlying the groundwater statutes is "to utilize the groundwater resources of the state and for that purpose to provide reasonable regulations for the allocation for reasonable use based on hydrologic surveys of fresh groundwater basins or subbasins to determine a restriction on the production based upon the acres overlying the groundwater basin or subbasin." Okla. Stat. tit. 82, § 1020.2 (1991). The Water Board determines the maximum annual yield of groundwater to be produced from each groundwater basin based on a hydrologic survey. Id. at § 1020.5 (Supp.1993). The yield for the groundwater basin involved in this matter has been set at one acre foot¹ of water per acre of surface land overlying the basin. Any person intending to use groundwater must make application to the Water Board before taking it from a completed well or drilling a new well. Id. at § 1020.7. The Water Board must determine four issues in deciding whether to grant a groundwater permit:

(a) Whether the applicant owns or leases or has some other sufficient interest in the surface of the land dedicated to the application;

(b) Whether such land overlies a fresh groundwater basin or subbasin;

(c) Whether the use to which the applicant intends to put the water is a beneficial use; and

(d) That waste by depletion or waste by pollution will not occur.

Okla. Admin. Code § 785:30-3-5; Okla. Stat. tit. 82, § 1020.9(A) (Supp.1993). The first three of these issues were not contested. The third and fourth issues measure the reasonable use of fresh groundwater. If the Water Board finds for the applicant on all four issues, it must issue a permit. Okla. Stat. tit. 82, § 1020.9(A).

Reasonable Use

¶ 11 Landowners challenge Kronseders' plan to withdraw...