Oklahoma Water Resources Board: Legal Documents

Defending Oklahoma Water & Water Rights

As Oklahoma's water agency, the OWRB has long been committed to vigorous defense of the water rights and needs of the state and all of its citizens. This includes both proactive and defensive protection of the state's longstanding authority to manage its surface and groundwater supplies equitably in continued pursuit of a strong economy and healthy environment.

Stream Adjudication

On February 10, 2012, the Oklahoma Attorney General filed a request on behalf of the OWRB asking the Oklahoma Supreme Court to adjudicate water rights formally in three major stream systems in southeastern Oklahoma. That request was granted on February 23. The AG also filed for dismissal of the federal lawsuit filed by the Choctaw and Chickasaw Nations claiming "prior and paramount" rights to and "dominion" over water within a 22-county area of southeastern Oklahoma. The far-reaching claims raised by the Nations' lawsuit, which they refused to dismiss, necessitated the State's filing to initiate a general stream adjudication.

COMING: Instructions and forms for water rights holders to submit claims to protect existing water rights and permits issued by the OWRB.

Stay Orders by Federal Court for Mediation: On March 27, 2012, the federal court issued an order to stay formal proceedings (put the case on hold) for 60 days to allow more time for mediation among the parties. On May 23, the stay was extended for another 60 days by the federal court. Frances McGovern is the federal court mediator.

Chickasaw and Choctaw Nations v. Gov. Fallin, OWRB, and Oklahoma City

On August 18, 2011, the Chickasaw Nation and Choctaw Nation of Oklahoma filed a lawsuit in the U.S. District Court for the Western District of Oklahoma. As subsequently amended, the lawsuit names as defendants Gov. Mary Fallin, the members and Executive Director of the OWRB, and the City of Oklahoma City and the Oklahoma City Water Utility Trust (OCWUT). The lawsuit alleges the Indian Nations have federally-protected rights to the water within a 22-county territory in southeastern Oklahoma that are "prior and paramount" to any rights granted by the State to Oklahoma's citizens. Among other things, the lawsuit seeks (1) declaratory judgments against any action by the OWRB on a pending application by Oklahoma City and OCWUT for a permit to use stream water from Sardis Reservoir in southeastern Oklahoma, or any other withdrawal or export of water from the area at issue, unless and until there is initiated a general stream adjudication that satisfies the requirements of the federal law known as the McCarran Amendment; and (2) permanent injunctions against any such action unless and until a general stream adjudication that satisfies the McCarran Amendment is completed.

On February 10, 2012, the Oklahoma Attorney General filed on behalf of the OWRB to initiate such McCarran Amendment adjudication proceedings to protect and accurately determine all rights to the use of water in the Kiamichi, Clear Boggy, and Muddy Boggy stream systems and moved to dismiss the Tribes’ federal court action as a premature effort to have federal courts usurp Oklahoma’s management of waters of the State.

Tarrant Regional Water District v. Herrmann

In Tarrant Regional Water District v. Herrmann, the Tarrant Regional Water District (TRWD) had sought declaratory and injunctive remedies against Oklahoma laws that placed conditions on the use of compacted stream water outside of the state. The district court had granted summary judgment and dismissal in favor of OWRB members. On appeal, the Court of Appeals affirmed the district court on several grounds. The Court of Appeals held that the federal Red River Compact—a standing agreement between the states of Texas, Oklahoma, Arkansas, and Louisiana—provides Congressional consent and gives the Oklahoma Legislature latitude to impose conditions on stream water apportioned to Oklahoma under the compact. The Court further held that TRWD lacks standing to assert claims for groundwater located in Oklahoma because, among other things, the statutes challenged by TRWD do not apply to groundwater. On January 19, 2012, TRWD filed a final appeal with the United States Supreme Court seeking review of the Court of Appeals decision. Subsequently, the Supreme Court has referred the case to the Solicitor General for comment. Following comment by the Solicitor General, in February 2013 the Supreme Court agreed to hear the case.

The Supreme Court has been asked to answer two basic questions: 1) Whether the Red River Compact—which allocates to each signatory state equal rights to the use of no more than 25 percent of flows in Reach II, Subbasin 5 in excess of 3,000 cubic feet per second—provides authority for a signatory state [i.e., Texas] to divert a fixed equal share of Subbasin 5 waters from within the borders of another signatory state [e.g., Oklahoma]; and 2) Whether the dormant Commerce Clause bars Oklahoma from applying its water laws when Oklahoma considers an application to grant an initial appropriative right to water governed under the Red River Compact.

Map of Reach II of the Red River Compact region

Map of Red River Compact area, Reach II.

City of Hugo v. Nichols

In City of Hugo v. Nichols, the City of Hugo, Oklahoma and the City of Irving, Texas had sought declaratory and injunctive relief against the application of Oklahoma statutes governing stream water that restricted use of such water out-of-state. Hugo and Irving had entered into a contract for the sale of 200,000 acre-feet of water (65 billion gallons) to Irving for Irving’s use in Texas. Earlier, the district court had granted summary judgment to the OWRB, concluding that the Red River Compact authorized Oklahoma to enact the challenged laws. On appeal, the Court of Appeals vacated the district court’s order and remanded the case to dismiss for lack of federal jurisdiction. The Court of Appeals ruled that neither Hugo nor Irving had standing. The Court’s opinion held Hugo, under the doctrine of political subdivision standing, lacked standing to invoke a dormant Commerce Clause claim against the OWRB (i.e., Hugo’s parent state). The Court further held that Irving’s claimed injury would not be redressed by invalidating the challenged laws, and Irving lacked standing because Irving’s standing was premised solely on its contract with Hugo. On January 4, 2012, Hugo filed a final appeal with the United States Supreme Court seeking review of the Court of Appeals decision.

On March 19, 2012, the U.S. Supreme Court rejected the City of Hugo's appeal of the Court of Appeals ruling that denied the City's attempt to sell water to Irving.



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