The finalization of an historic deal between the state, the city of Oklahoma City and two southern Oklahoma American Indian tribes that would give the state control over water resources in southeastern Oklahoma has been delayed for a year and a half.
On Tuesday, the Oklahoma Water Resources Board unanimously approved a measure to push back the deadline for the settlement agreement between the Chickasaw and Choctaw tribes, the state and Oklahoma City to go into effect from Sept. 30 to May of 2022. It had been set to go into effect in just over a month.
The move is the result of an appeal in a lawsuit filed against OWRB by landowners near the Kiamichi River in Pushmataha County, where Oklahoma City is planning to eventually pump water from.
The settlement agreement, reached in 2016, was the result of a 2011 federal lawsuit between the tribes, the state and Oklahoma City, and would give the OWRB permission granted by the tribes to regulate and allocate water resources within the tribal boundaries, subject to terms agreed to by all parties.
The agreement is also part of Oklahoma City’s plan to begin withdrawing water from Sardis Lake and the Kiamichi River in southeastern Oklahoma for its own use. After a contentious hearing, with landowners near the Kiamichi River opposing the move, the OWRB granted Oklahoma City a permit to withdraw 115,000 acre feet, or 37.5 billion gallons, annually from the lake and river.
The city’s plan is to set up a pumping station about 40 miles downstream from Sardis Lake near Moyers Crossing, which is located on State Highway 2 between Clayton and Antlers, releasing water from Sardis Lake, which flows into the Kiamichi, and pumping the water to Oklahoma City beginning in 2035.
The issue of Oklahoma City’s attempts to tap water held in Sardis Lake, near Clayton, has been a matter of controversy in southeastern Oklahoma for years. The reservoir was constructed in the mid-1970s for municipal and industrial water use under an agreement between the state and the U.S. Army Corps of Engineers.
However, the state repeatedly failed to repay the Corps for construction of the reservoir.
In 2007, Oklahoma City applied to the OWRB to use water from the Sardis reservoir, and in 2010, OWRB approved a $42 million agreement with Oklahoma City, that gave the city access to 90 percent of the water in the lake in exchange for the city paying off the state’s debt.
That move led to the 2011 lawsuit by the tribes.
After the 2016 agreement between the state, city and tribes, Oklahoma City’s permit application was approved by OWRB in October 2017, and shortly thereafter the landowners near the Kiamichi River filed suit in Pushmataha County.
The lawsuit alleges that property owners were not provided with adequate legal notice of Oklahoma City’s permit application and that the notice requirements are not constitutional.
In June, the judge issued an order in favor of the OWRB in that case, but the ruling has been appealed by the landowners to the Oklahoma Supreme Court.
The appeal states that the court erred in not allowing official discovery of “alleged irregularities in procedure before the agency” that were discovered after the October 2017 OWRB hearing. OWRB, in its court filings, states that all public notice and due process requirements were followed prior to issuing the permit to Oklahoma City.
In its legal filings, the OWRB requested the Oklahoma Supreme Court hear the case, rather than the Court of Civil Appeals, and that it be fast-tracked, a request that was supported in court filings by Oklahoma City.
While the State Supreme Court agreed to hear the case, it denied the motion to fast track the case, according to a July 28 order from the court.
During Tuesday’s OWRB meeting, Sara Gibson, general counsel for OWRB, said the process of getting a hearing before the Supreme Court could take up to a year, but expressed confidence that the case would not require major changes to the agreement with the city and tribes.
“I don’t think this one threat is enough to unravel the whole thing,” Gibson said.
When asked by one OWRB member what might happen if the court ruled in favor of the property owners, Gibson said it would likely result in the case being kicked back down to the district court level, at which point another extension on the effective date of the settlement agreement would be required.
The agreement has already been approved by Congress, the President and the parties involved.
“All the approvals are in place, it’s just getting all of these things worked out before it can become enforceable,” Gibson said.
A separate lawsuit that was filed in federal court, which alleged that the impact of water withdrawals from the Kiamichi River would harm several species of endangered mussel found in the Kiamichi River was dismissed in February.
Kevin Kemper, the attorney for the landowners, said the issues involved go beyond the legal issues being brought up in the appeal.
“We continue to work diligently to do what we can to make sure the process is transparent and the Kiamichi River basin is protected through factual science, reasonable policy, and the rule of law,” Kemper said. “I hope that all of the stakeholders would work together for the benefit of all. It’s about the tribes and the state and Oklahoma City, but it’s also about everyone and everything in southeastern Oklahoma.”