Oklahoma Water Resources Bd. v. Texas County Irr. and Water Resources Ass'n, Inc.

Decision Date26 December 1984
Docket NumberNo. 56355,56355
PartiesOKLAHOMA WATER RESOURCES BOARD and Mobil Oil Corporation, a New York Corporation, Appellants, v. TEXAS COUNTY IRRIGATION AND WATER RESOURCES ASSOCIATION, INC., a non-profit Oklahoma Corporation, by its Board of Directors, Appellee.
CourtOklahoma Supreme Court

R. Thomas Lay, Gen. Counsel, Oklahoma Water Resources Bd., Oklahoma City, for appellant Water Resources Bd.

Sid M. Groom, Jr., Ames, Daugherty, Black, Ashabranner, Rogers & Fowler, Edmond, John E. Robertson, Denver, Colo., for appellant Mobil Oil Corp.

Andrew T. Dalton, Jr., Tulsa, for appellee.

Joseph F. Rarick, Norman, Steven E. Moore, Oklahoma City, for amicus curiae Oklahoma Gas and Elec. Co.

Diane Pedicord, Oklahoma City, for amicus curiae Oklahoma Municipal League.

ALMA WILSON, Justice.

This appeal involves an administrative order of the Oklahoma Water Resources Board [Board]. The Board approved the application of Mobil Oil Corporation [Mobil] to withdraw fresh ground water for secondary and tertiary waterflood operations in Texas County, Oklahoma. The District Court of Texas County partially reversed the Board's order. This appeal resulted.

Mobil filed its application with the Board on February 13, 1979. Mobil requested a temporary permit to withdraw 6375.03 acre-feet of fresh ground water annually during the projected 20-year life of its oil and gas recovery project. The leased water rights covered 3,442 acres overlying the Ogallala Aquifer in Texas County, Oklahoma. The proposed place of use covered a total surface area of 24,540 acres in Texas County. Mobil estimated that it would withdraw annually an average of .744 acre-feet of fresh ground water per acre of leased ground water rights; maximum use would occur in 1993 when 1.852 acre-feet of fresh ground water would be withdrawn; minimum use would occur in 1998 when .209 acre-feet of fresh ground water would be withdrawn.

An administrative hearing was held on August 16, 1979. The Texas County Irrigation and Water Resources Association [Association] and three adjacent landowners protested Mobil's application. The Board ruled that Mobil had complied with all applicable statutory and administrative prerequisites and issued a temporary permit for a term of 20 years. The temporary permit was subject to automatic annual revalidation by the Board.

The Association sought judicial review of the Board's administrative ruling in the District Court of Texas County. The Association urged, inter alia, that the use of fresh ground water for secondary and tertiary oil recovery constitutes waste because the water is not continued in the natural cycle, but is polluted and lost permanently. The District Court did not view the use of fresh ground water by Mobil in secondary or tertiary oil recovery to be waste under the law. The District Court also conceded that Mobil's proposed use is a beneficial one. The District Court, however, further determined that Mobil's proposed use of fresh ground water off the lands from The Board and Mobil prosecuted this appeal from the order of the District Court. These appellants maintain that under the facts of this case the District Court erred as a matter of law in not affirming, in total, the Board's administrative order. The Oklahoma Municipal League [League] and Oklahoma Gas and Electric Company [OG & E] petitioned this Court for leave to file briefs amicus curiae in this appeal. The League and OG & E take no position on the question of whether or not the Board, under the facts of this particular case, erred in issuing a permit to Mobil. These amicus curiae present the following substantive issues to this Court for resolution:

which it is produced constitutes an unreasonable use of water from a critical ground water source. Thus, the District Court affirmed the Board's issuance of the permit, but reversed the Board's decision insofar as it permitted Mobil to transport fresh ground water off the premises from which it is withdrawn.

(1) Is a concept of conflicting beneficial uses in a critical ground water area recognized under current Oklahoma ground water law?

(2) May percolating water be used off the lands from which it is produced under current Oklahoma ground water law?

I

In 1972, our Legislature revised Oklahoma's statutory system for regulating the use of ground water. See Laws 1972 c. 248, § 1, et seq., now 82 O.S.1981, § 1020.1 et seq. Prior to the 1972 enactment, the 1949 Ground Water Law, as amended at 82 O.S.1971, § 1001-1019, was in effect. The 1949 Act envisioned a system of conservation in which only the safe annual yield of a basin as measured by its average annual recharge would be permitted to be withdrawn. Accordingly, the 1949 Act recognized the concept of a "critical ground water area". 1 Under the 1972 revisions, however, the Legislature adopted a policy of utilization of water as opposed to the prior use conservation policy. The declaration of policy of the 1972 Ground Water Act, 82 O.S.1981, § 1020.2, expressly provides:

"It is hereby declared to be the public policy of this state, in the interest of the agricultural stability, domestic, municipal, industrial, and other beneficial uses, general economy, health and welfare of the state and its citizens, to utilize the ground water resources of the state, and for that purpose to provide reasonable regulations for the allocation for reasonable use based on hydrologic surveys of fresh ground water basins to determine a restriction on the production based upon the acres overlying the ground water basin or subbasin. The provisions of this act shall not apply to the taking, using or disposal of salt water associated with the exploration, production or recovery of oil and gas or the taking, using or disposal of water trapped in producing mines." 2 (Emphasis added)

As reflected in the above declaration of policy, use regulation and management is contemplated as the means of restricting production of water. The 1972 Act thus contains no provisions for the designation of a "critical ground water area". Rather, apportionment for reasonable use is the standard. Pursuant to this standard, beyond prior existing water rights, the right to withdraw ground water for non-domestic use is apportioned based

on the maximum annual yield of the basin. The maximum annual yield is measured on a minimum basin life of 20 years, and the amount of land overlying the basin or subbasin. 3 Consequently, whereas under the 1949 Act a permit for the extraction of water could not be issued if the Water Resources Board found that such use would result in depletion above the average annual rate of recharge; under the 1972 Act a regular permit to use water allocates to the applicant for beneficial use a proportionate share of the maximum annual yield of the basin. Since the proportionate share of the maximum annual yield of the basin equals the percentage of land owned or leased by the applicant (as compared to the total acreage of the basin), the use of non-use by one landowner neither decreases nor increases the proportionate share of another. Moreover, in addition to not recognizing "critical ground water areas", the 1972 Act neither recognizes nor mentions preferences between beneficial uses. The concept of conflicting beneficial uses in a critical ground water area has no application in the current ground water law.

II

The policy and statutory scheme for regulating the use of ground water set forth above do not embrace a prohibition against the use of fresh ground water off the premises from which it is withdrawn. Indeed, the 1972 Act indicates an intention by the Legislature to allow the use of duly allocated ground water at a distance from the land from which the water is produced so long as current use regulations, including waste prohibition, are satisfied. This intention is evidenced by Section 1020.8 which provides that an application contain among other things, "the places of taking and use" (emphasis added), as well as Section 1020.15 which prohibits waste by "[t]ransporting fresh ground water from a well to the place of use in such a manner that there is an excessive loss in transit."

Significantly, the only substantive limitation on use per se, whether on or off the place of origin, is that it be a reasonable use. In this context, Section 1020.2, discussed supra, provides:

"It is hereby declared to be the public policy of this state, ... to utilize the ground water resources of the state, and for that purpose to provide reasonable regulations for the allocation for reasonable use based on hydrologic surveys of fresh ground water basins to determine a restriction on the production, based on the acres overlying the ground water basin or subbasin.... (Emphasis added).

Regulations for the allocation of ground water for reasonable use are codified at 82 O.S.1981, § 1020.9, which provides:

"At the hearing, the Board shall determine from the evidence presented by the parties interested, from the hydrologic surveys and from other relevant data available to the Board and applicant, whether the lands owned or leased by the applicant overlie the fresh groundwater basin or subbasin and whether the use to which the applicant intends to put the water is a beneficial use. If so, and if the Board finds that waste will not occur, the Board shall approve the application by issuing a regular permit...." (Emphasis added).

We conclude that movement of fresh ground water off the producing premises is not precluded by the limitation of reasonable use so long as use regulations now codified in the 1972 Oklahoma Ground Water Law, 82 O.S.1981, § 1020.1, et seq.,

have been properly adjudicated and the evidence establishes that the applicant is in compliance therewith.

III

In their petitions-in-error, Mobil and the Board include the following propositions as error under the facts of the present case:

"The District Court was in error...

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