Oklahoma § 82-1020.9 - Approval of application

§ 82-1020.9. Approval of application

A. 1. Before the Oklahoma Water Resources Board takes final

action on an application, the Board shall determine from the

evidence presented, from the hydrologic surveys or reports and from

other relevant data available to the Board and applicant, whether:

a.

the lands owned or leased by the applicant overlie a

fresh groundwater basin or subbasin,

b.

the use to which the applicant intends to put the

water is a beneficial use,

c.

waste as specified by Section 1020.15 of this title

will occur, and

d.

the proposed use is likely to degrade or interfere

with springs or streams emanating in whole or in part

from water originating from a sensitive sole source

groundwater basin or subbasin as defined in Section

1020.9A of this title.

2. The Board shall approve the application by issuing a regular

permit, if the Board finds that:

a.

the lands owned or leased by the applicant overlie the

fresh groundwater basin or subbasin,

b.

the use to which the applicant intends to put the

water is a beneficial use,

c.

waste specified by Section 1020.15 of this title will

not occur. When determining whether waste will occur

pursuant to this subparagraph, if the activity for

which the applicant intends to use the water is

required to comply with rules and requirements of or

is within the jurisdictional areas of environmental

responsibility of the Department of Environmental

Quality or the State Department of Agriculture, Food,

and Forestry the Board shall be precluded from making

a determination whether waste by pollution pursuant to

paragraph 7 of subsection A of Section 1020.15 of this

title will occur as a result of such activity. Each

groundwater protection agency, as such term is defined

by Section 1-1-201 of Title 27A of the Oklahoma

Statutes, shall be responsible for developing and

enforcing groundwater protection practices to prevent

groundwater contamination from activities within their

respective jurisdictional areas of environmental

responsibility, and

Oklahoma Statutes - Title 82. Waters and Water Rights

d.

the proposed use is not likely to degrade or interfere

with springs or streams emanating in whole or in part

from water originating from a sensitive sole source

groundwater basin as defined in Section 1020.9A of

this title.

B. Except as otherwise provided in subsection C of this

section, a regular permit shall allocate to the applicant the

proportionate part of the maximum annual yield of the basin or

subbasin. The proportionate part shall be that percentage of the

total annual yield of the basin or subbasin, previously determined

to be the maximum annual yield as provided in Section 1020.5 of this

title, which is equal to the percentage of the land overlying the

fresh groundwater basin or subbasin which the applicant owns or

leases and which is dedicated to the application.

C. If the lands dedicated to the application overlie two or

more groundwater basins and both basins have had maximum annual

yields determined, the amount to be authorized by the regular permit

shall be calculated on the basin having the greatest maximum annual

yield. If the lands dedicated to the application overlie two or

more groundwater basins or subbasins and the maximum annual yield

has been determined for at least one but not all the basins or

subbasins, a temporary permit may be issued to the applicant if the

applicant demonstrates by substantial competent evidence that the

water to be withdrawn by the temporary permit will not be taken from

a basin or subbasin for which the maximum annual yield has been

determined. If the land overlies two or more groundwater basins or

subbasins and the maximum annual yield has not been determined for

any of the basins or subbasins, more than one temporary permit may

be issued for the land if the applicant demonstrates by substantial

competent evidence from which basin the water will be withdrawn for

each of the permits.

D. The permit shall specify the location of the permitted well

or wells and other terms and conditions as specified by the Board,

including, but not limited to, the rate of withdrawal, the level of

perforating and the level of sealing the well. A regular permit

shall not be granted for less than the remaining life of the basin

or subbasin as previously determined by the Board.

E. Except for applications for use of groundwater from sole

source aquifers, if the Board's final action to approve an

application is appealed, the applicant may take and use groundwater

as is set forth under the permit while any appeals are pending with

the Board, in district court, or in the appellate courts. For a

court to enjoin the approved use of groundwater pending appeal,

appellants must show a high likelihood of success on the merits,

that there is clear and convincing evidence that they will suffer

irreparable harm, that the balance of the equities tips

significantly in their favor, and that the order is clearly in the

Oklahoma Statutes - Title 82. Waters and Water Rights

public interest. Any preliminary injunctive relief must be narrowly

drawn, extend no further than necessary to correct the harm the

court finds requires preliminary relief, and be the least intrusive

means necessary to correct that harm. For sole source aquifers, if

the Board's final action to approve an application is appealed, a

district court may enjoin the approved use of groundwater pending

appeal by appellants showing any one of the following:

1. Appellants must show a high likelihood of success on the

merit;

2. That there is clear and convincing evidence that they will

suffer irreparable harm;

3. That the balance of the equities tips significantly in their

favor; or

4. That the order is clearly in the public interest.

F. If all statutory requirements for groundwater permits are

fulfilled and the Board approves the application, appeals seeking to

prohibit the use of water based solely on the industry or entity

applying to use the water are considered to have no genuine issue as

to any material fact and shall be dismissed pursuant to Section 2056

of Title 12 of the Oklahoma Statutes. Further, if such claims are

found to be frivolous, the court may impose sanctions against the

appellant, the appellant's attorney, or both including requiring the

appellant or the appellant's attorney to reimburse the appellee for

reasonable costs and expenses such as reasonable attorney fees and

other expenses incurred as a result of the appeal.

Added by Laws 1972, c. 248, § 9, eff. July 1, 1973. Amended by Laws

1993, c. 164, § 14, emerg. eff. May 10, 1993; Laws 2001, c. 330, §

1, emerg. eff. June 1, 2001; Laws 2003, c. 365, § 3; Laws 2023, c.

341, § 1, emerg. eff. June 7, 2023.

§82-1020.9A. Sensitive sole source groundwater basins or subbasins

- Moratorium on issuance of certain temporary permits.

A. The Legislature finds that a moratorium is necessary on the

issuance of certain temporary permits on certain sensitive sole

source groundwater basins or subbasins to protect the health, safety

and welfare of the people of Oklahoma.

B. 1. A moratorium is hereby established on the issuance of

any temporary permit that would lead to any municipal or public

water supply use of groundwater from a sensitive sole source

groundwater basin or subbasin outside of any county that overlays in

whole or in part said basin or subbasin. “Sensitive sole source

groundwater basin” means a major groundwater basin or subbasin all

or a portion of which has been designated as a “Sole Source Aquifer”

by the United States Environmental Protection Agency pursuant to the

Safe Drinking Water Act as of the effective date of this act,

including any portion of any contiguous aquifer located within five

Oklahoma Statutes - Title 82. Waters and Water Rights

(5) miles of the known areal extent of the surface out-crop of the

sensitive sole source groundwater basin.

2. Said moratorium shall be in effect until such time as the

Oklahoma Water Resources Board conducts and completes a hydrological

study and approves a maximum annual yield that will ensure that any

permit for the removal of water from a sensitive sole source

groundwater basin or subbasin will not reduce the natural flow of

water from springs or streams emanating from said basin or subbasin.

3. The provisions of this act shall be applicable to

groundwater permit applications for which no final adjudication has

been made by the Oklahoma Water Resources Board before the effective

date of this act.

4. Any revalidation of a temporary permit, in effect upon the

effective date of this act, that allows for any municipal or public

water supply use of groundwater from a sensitive sole source

groundwater basin outside of any county that overlays in whole or in

part said basin shall be considered a new permit application and

subject to the provisions of this act.

Added by Laws 2003, c. 365, § 1.

§82-1020.9B. Moratorium on municipalities and other political

subdivisions - Prohibition of contract or agreement for use of

groundwater from sensitive sole source groundwater basin.

A. A moratorium is hereby established on any municipality or

other political subdivision of this state prohibiting any such

entity from entering into a contract or other agreement which would

lead to municipal or public water supply use of groundwater from a

sensitive sole source groundwater basin as defined in Section 1 of

this act. Said moratorium shall apply only to municipalities or

political subdivisions which are located outside of any county that

overlays in whole or in part said basin or subbasin.

B. Said moratorium shall be in effect until such time as the

Oklahoma Water Resources Board conducts and completes a hydrological

study and approves a maximum annual yield that will ensure that any

permit for the removal of water from a sensitive sole source

groundwater basin will not reduce the natural flow of water from

springs or streams emanating from said basin or subbasin.

Added by Laws 2003, c. 365, § 2.

§82-1020.9C. Moratorium on actions related to operation of mines

that may affect sensitive sole source groundwater basin or

subbasins.

A. For the purposes of this section, a "subject mine" shall

mean a mine, as defined in paragraph 2 of Section 723 of Title 45 of

the Oklahoma Statutes, that overlies a sensitive sole source

groundwater basin or subbasin, exclusive of any mine that meets at

least one of the following conditions:

Oklahoma Statutes - Title 82. Waters and Water Rights

1. As of November 1, 2019, was engaged in the permitted

extraction of minerals from natural deposits; or

2. Satisfies the criteria of paragraph 1 or 2 of subsection C

of Section 1020.2 of Title 82 of the Oklahoma Statutes; or

3. Is not to be permitted to operate for a period of more than

five (5) years, with no extensions or renewals; or

4. The operation of which will not result in more than five (5)

acre-feet per year of groundwater emanating from a sensitive sole

source groundwater basin or subbasin to infiltrate its pit, as that

term is defined in paragraph 12 of Section 723 of Title 45 of the

Oklahoma Statutes.

B. Due to the inadequacy of existing technical resources,

analytic tools and regulatory systems for purposes of the effective

implementation of statutes relating to the operation of mines that

may affect sensitive sole source groundwater basins or subbasins,

the Legislature hereby declares and establishes a moratorium on the

following actions:

1. The Oklahoma Water Resources Board shall not issue any

permit or other administrative authorization for the appropriation,

diversion, withdrawal or removal of water from or for the

dewatering, in part or in full, of a pit, as defined in paragraph 12

of Section 723 of Title 45 of the Oklahoma Statutes, of a subject

mine; and

2. The Board shall not issue, allocate or recognize, pursuant

to subsection D of Section 1020.2 of Title 82 of the Oklahoma

Statutes, Section 785:30-15-5 of the Oklahoma Administrative Code or

any other provision of law, any offset to the consumptive use of

water of a subject mine where such offset is based on a claimed

augmentation of stream flow or groundwater.

C. The moratorium shall be in effect until such time as the

Board, working in coordination with the Department of Environmental

Quality, the Department of Mines, and East Central University and in

cooperation with federal and tribal governmental agencies with

interests in a subject mine that overlies a sensitive sole source

groundwater basin or subbasin:

1. Completes the Enhanced Monitoring and Evaluation of

Hydrologic Trends for the Eastern Arbuckle-Simpson Aquifer, SouthCentral Oklahoma and, based thereon, develops modeling and other

technical tools capable of accurately measuring and projecting, as a

matter both of incremental and cumulative effect, whether a proposed

withdrawal of groundwater from a sensitive sole source groundwater

basin or subbasin would degrade or interfere with springs and

streams emanating therefrom;

2. Promulgates final rules to integrate the use of such studies

and tools to administrative implementation of:

a.

waste, degradation and interference analyses required

by subparagraphs c and d of paragraph 1 and

Oklahoma Statutes - Title 82. Waters and Water Rights

subparagraphs c and d of paragraph 2 of subsection A

of Section 1020.9 of Title 82 of the Oklahoma

Statutes,

b.

uniform minimum standards and requirements for the

development of, and annual reporting regarding

compliance with, site-specific water management and

conservation plans pursuant to Section 1020.2 of Title

82 of the Oklahoma Statutes, with particular regard to

methodologies for calculating amounts claimed in

consumptive use of water and any claimed augmentation

of stream flow or groundwater, and

c.

consultation, review and approval of such sitespecific water management and conservation plans, with

specific provisions for making such consultations,

reviews and approvals subject to Article 2 of the

Administrative Procedures Act; and

3. Promulgates final rules to provide for effective interagency

consultation and coordination of activities among the Board, the

Department of Mines and the Department of Environmental Quality on

all administrative matters relating to the operation of mines at

locations that overlie a sensitive sole source groundwater basin or

subbasin.

D. The Board is hereby authorized and instructed to promulgate

rules to implement the provisions of this section.

E. The Board is hereby authorized to cooperate with federal,

tribal and any other agency in this state in performing its

responsibilities under this section.

Added by Laws 2019, c. 349, § 3, eff. Nov. 1, 2019. Amended by Laws

2019, c. 503, § 1, eff. Nov. 1, 2019.