- Ada, Oklahoma

October 30, 2013

Arbuckle-Simpson fight shifts to the courtroom

Eric Swanson Staff Writer

Ada —


The fight over water in the Arbuckle-Simpson Aquifer has moved from the boardroom to the courtroom.

Both sides are asking an Oklahoma County District Court judge to review a decision by the Oklahoma Water Resources Board which voted last week to limit the amount of water that can be shipped out of the aquifer each year. The board’s order set the maximum annual yield at 78,404 acre feet.

The order also set new limits on the amount of water that landowners can take from the aquifer each year, a number known as the equal proportionate share. Under the order, communities and individual water permit holders can withdraw up to 0.2 acre feet — approximately 2.4 inches — of water per acre per year.

Now that the order is final, the board has begun drafting rules concerning implementation, well spacing and other technical issues.


Judicial review

Several organizations that oppose the MAY are attacking the order on a variety of grounds, including a complaint that the board relied on bad science and incomplete evidence, according to a copy of the organization’s motion seeking judicial review. The group also contends that the order violates landowners’ property rights because it limits the amount of groundwater that can be transferred from the aquifer each year.

“The Board’s MAY determination is unconstitutional, because the effective appropriation of 90 percent of the Petitioners’ groundwater rights constitutes a taking of private property without compensation,” the group said.

The group is asking the court to direct the OWRB to correct an alleged series of procedural and substantive errors,  which led to the order setting the MAY.

Supporters of the MAY are also asking the court to review the decision, but on different grounds.

The nonprofit organization Citizens for the Protection of the Arbuckle-Simpson Aquifer, which supports the MAY, said the order should have indicated which documents are included in the administrative record. The organization noted that it had previously asked the OWRB to add 34 documents to the record, including scientific studies of the aquifer.

CPASA wants the court to modify the order to indicate which documents are part of the administrative record and incorporate the additional material, according to a copy of the organization’s motion.

“Many of the documents included in CPASA’s Motion to Include are scientific studies of the Arbuckle-Simpson Aquifer and relate directly to the points that the corporate special interest groups challenge,” the organization said. “CPASA will be injured if it is required to defend the Board’s Final Determination without the benefit of an entire record, particularly when many of the documents in question are scientific studies conducted as part of the board’s hydrologic study of the Arbuckle-Simpson Aquifer.”

Both sides noted that Oklahoma law allows courts to review final orders from state agencies, such as the MAY decision.

The case has been assigned to Oklahoma District Court Judge Barbara Swinton, but a hearing date has not been scheduled yet.