Q&A with Dean Couch
Controlling water use imperative to economic health
Q: As the former general counsel for the Oklahoma Water Resources Board, you're more than aware of water rights. Why are they important?
A: Somewhat like a written deed filed with a county clerk that shows legal ownership of property, a water right is usually understood to be legal authorization to use water that is filed with the Oklahoma Water Resources Board (OWRB). The written authorization can be in the form of a permit to use surface water or groundwater, a vested right to use surface water or a prior right to use groundwater. As the demand for water increases, valid water rights are extremely important to determine the authorized use of this valuable resource.
Q: Who owns the water in streams, lakes and ponds in Oklahoma?
A: The answer is no one and everyone. The actual molecules of water in streams, lakes and ponds is said to be part of nature, like deer on the land and birds in the air, and owned by no one or “owned” by the public in general. The U.S. Supreme Court recognized that this principle of non-ownership or public ownership was first established as an ancient Roman law. This is part of the reason that a water right is said to be right of use only, and not a right of actual ownership of the water. The public ownership aspect of water supports the notion that the state government, on behalf of the public, can regulate water use through permit systems such as the water rights system administered by the OWRB.
Q: Does that same principle of non-ownership of water apply to groundwater that is under the surface of the land in Oklahoma?
A: Even before Oklahoma's statehood, the Oklahoma Territory statutes declared that water under the surface of the earth not forming a definite underground stream is owned by the owner of the land, and that law is still on the books today. However, to use more than a minor household amount of the groundwater, the landowner or someone leasing the land from the landowner must obtain a permit from the OWRB for that use. While the statute's declaration of ownership of the groundwater might be described as a water right, a right to use groundwater granted by an OWRB permit may be more important to a landowner or leaseholder.
Q: The Tarrant Regional Water District case highlighted interstate compacts. What are compacts and why are they important?
A: The founding fathers believed that to have a cohesive nation individual states should be limited in the ability to make agreements with each other in a vacuum. The U.S. Constitution provides that no state shall, without the consent of Congress, enter into any agreement or compact with another state. States can make agreements with each other to divide up water in rivers that flow between the states, but Congress must approve those agreements, which are usually called compacts. When approved by Congress, these compacts become federal laws that are binding on the states, as well as its citizens, municipalities and industries. It goes without saying that the ability to control the use of water is a fundamental component of life, public health, safety and virtually all activities that contribute to economic well-being of a state, so the amount of water a state can access is critical. A state's sovereign power is on the line when it enters a water compact.
PAULA BURKES, BUSINESS WRITER