McAlester News-Capital, McAlester, OK

November 18, 2013

Sulphur residents ask Oklahoma Water Resources Board to reconsider Arbuckle-Simpson decision

Eric Swanson Staff Writer adanewsreporter@cableone.net
www.theadanews.com

Ada —

     Two Sulphur residents are challenging the Oklahoma Water Resources Board’s decision to limit the amount of water that can be withdrawn from the Arbuckle-Simpson Aquifer each year.

   Carolyn and John Sparks want the board to reconsider its order setting the maximum annual yield for the aquifer. The order, which was issued in October, capped the MAY at 78,404 acre feet.

     The MAY would allow communities and landowners with water permits to withdraw up to 0.20 acre feet — about 2.4 inches — per acre per year. That number, known as the equal proportionate share, would reduce the amount of groundwater that permit holders can take out of the aquifer each year.

     The board has not devised a time frame for implementing the order, but officials are working on rules governing implementation, well spacing and other issues.

     The Sparkses, who hold a permit for groundwater to irrigate their pecan trees, are worried that the MAY order will limit the amount of water they can use, Carolyn Sparks said.

     “They have taken control of our groundwater, and it results in controlling how we use the surface,” she said Friday in a phone interview.

     Sparks said she hopes the board will Increase the amount of groundwater that can be withdrawn from the aquifer each year.

 

New development

     The Sparks’ challenge is the latest twist in a long-running fight over the future of the Arbuckle-Simpson, which lies underneath several counties in south central Oklahoma. The aquifer is the main source of drinking water for people in Ada, Sulphur and other communities.

     A decade ago, state officials began looking at ways to protect the Arbuckle-Simpson. That effort, which included a comprehensive study of the aquifer, ultimately led to the OWRB’s order setting the maximum annual yield.

     Under Oklahoma law, state agencies may reconsider their final orders if someone who opposes the decision files a request for review. The request must be filed within 10 days after the order was issued, and it must state at least one of the reasons listed in the law as a basis for reconsideration.

     In this case, the Sparkses contend that the MAY decision is ripe for reconsideration because the order would allow the state to take the couple’s groundwater and give it to people who normally rely on stream water.

     “If finally approved, the MAY order will result in an unlawful taking without just compensation of applicant’s groundwater,” the Sparkses said in their application for reconsideration. “Consequently, probable error was committed by the agency in its decision as would be grounds for reversal on judicial review.”

     Jerry Barnett, who serves as legal adviser for the OWRB, has recommended denying the request for reconsideration. He contended that the Sparks’ reasons for seeking review are not strong enough to grant the request.

     Barnett said opponents of the MAY have already raised the takings issue, which was addressed when the board approved the order. He added that the Oklahoma Supreme Court has upheld the constitutionality of Senate Bill 288 — the bill that paved the way for the MAY decision — and rejected claims that it amounts to an illegal taking.

     Barnett said he disagreed with the Sparks’ argument that the board would serve Oklahomans’ interests by reconsidering the order.

     “Many issues like those raised by Sparks were raised and thoroughly litigated by many parties in support and in opposition to the MAY order,” Barnett wrote in a Nov. 8 memo to board members. “That administrative proceeding took over 1 1/2 years to complete, from the issuance of the tentative determination in March 2012 through the entry of the final determination in October 2013.

     “The board order is sound. There has been no good reason articulated by Sparks to warrant reconsideration of the board order.”

     The OWRB will discuss the Sparks’ request during the board’s November meeting, set for 9:30 a.m. Tuesday in Oklahoma City.

     The Sparks aren’t the only ones challenging the MAY order, as several organizations that oppose the order are seeking relief through the courts.      Those groups, which contend that the MAY decision violates landowners’ property rights, filed a motion last month in Oklahoma County District Court seeking judicial review of the order.

     The nonprofit organization Citizens for the Protection of the Arbuckle-Simpson Aquifer are also seeking a court review of the order, but on different grounds. CPASA is asking the court to modify the order to indicate which documents are part of the administrative record and incorporate additional evidence into the record.

    CPASA has filed a request to transfer the case from Oklahoma County District Court to Pontotoc County because an appeal of the board’s decision was previously filed there. That request is still pending.