1 STATE OF OKLAHOMA
2 1st Session of the 59th Legislature (2023)
3 HOUSE BILL 2053 By: Hardin
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6 AS INTRODUCED
7 An Act relating to water and water rights; amending
82 O.S. 2021, Sections 1020.8 and 1020.9, which
8 relate to applications for permits to take and use
groundwater; excluding certain parties from protests;
9 preventing protests on certain grounds; allowing
certain actions during appeals; authorizing dismissal
10 of certain appeals; requiring certain finding;
authorizing sanctions; and providing an effective
11 date.
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14 BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
15 SECTION 1. AMENDATORY 82 O.S. 2021, Section 1020.8, is
16 amended to read as follows:
17 Section 1020.8 A. Except as otherwise provided by Section
18 1020.10 of this title for limited quantity groundwater permits, upon
19 the filing of an application which complies with the provisions of
20 Chapter 11 of this title, and the rules promulgated by the Oklahoma
21 Water Resources Board pursuant thereto, the Board shall instruct the
22 applicant to provide notice thereof, at the applicant's expense, and
23 as required by the Board's rules. Such notice shall give all the
24 essential facts as to the proposed taking, among them being the
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1 places of taking and of use, amount of water, the purpose for which
2 it is to be used, name and address of applicant, the hearing date,
3 time and place if a hearing is scheduled by the Board before
4 instructions to provide notice are given, and a thirty-day protest
5 period as well as the manner in which a protest to the application
6 may be made. At the time the Board provides notice of application
7 to the applicant, the Board shall publish on its website the
8 applications and instructions for public notice, including the draft
9 public notice prepared by the Board. The website publishing is in
10 addition to, and not in lieu of, the requirement for applicants to
11 publish notice in the newspaper. The time to protest shall run from
12 the date of the first newspaper publication.
13 B. No hearing shall be had upon the application until proper
14 notice shall have been given. Any interested party shall have the
15 right to protest the application and present evidence and testimony
16 in support of such protest. If the Board does not schedule a
17 hearing on the application before instructing the applicant to
18 provide notice, a hearing on the application shall be scheduled by
19 the Board upon receipt of a protest which meets the requirements of
20 the Board's rules and the Board shall notify the applicant and
21 protestant of such hearing.
22 C. A party protesting the application based solely on the
23 category of beneficial use, industry, or entity applying to use the
24 water is not an interested party.
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1 SECTION 2. AMENDATORY 82 O.S. 2021, Section 1020.9, is
2 amended to read as follows:
3 Section 1020.9 A. 1. Before the Oklahoma Water Resources
4 Board takes final action on an application, the Board shall
5 determine from the evidence presented, from the hydrologic surveys
6 or reports and from other relevant data available to the Board and
7 applicant, whether:
8 a. the lands owned or leased by the applicant overlie a
9 fresh groundwater basin or subbasin,
10 b. the use to which the applicant intends to put the
11 water is a beneficial use,
12 c. waste as specified by Section 1020.15 of this title
13 will occur, and
14 d. the proposed use is likely to degrade or interfere
15 with springs or streams emanating in whole or in part
16 from water originating from a sensitive sole source
17 groundwater basin or subbasin as defined in Section 1
18 of this act.
19 2. The Board shall approve the application by issuing a regular
20 permit, if the Board finds that:
21 a. the lands owned or leased by the applicant overlie the
22 fresh groundwater basin or subbasin,
23 b. the use to which the applicant intends to put the
24 water is a beneficial use,
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1 c. waste specified by Section 1020.15 of this title will
2 not occur. When determining whether waste will occur
3 pursuant to this subparagraph, if the activity for
4 which the applicant intends to use the water is
5 required to comply with rules and requirements of or
6 is within the jurisdictional areas of environmental
7 responsibility of the Department of Environmental
8 Quality or the State Department of Agriculture, the
9 Board shall be precluded from making a determination
10 whether waste by pollution pursuant to paragraph 7 of
11 subsection A of Section 1020.15 of this title will
12 occur as a result of such activity. Determination
13 that waster will or will not occur by the Department
14 of Environmental Quality or the State Department of
15 Agriculture is solely within the respective agency's
16 jurisdiction and may not be protested through the
17 Oklahoma Water Resources Board's hearing on the
18 application nor may an Oklahoma court order the Board
19 to hold a hearing over the determination of the
20 Department of Environmental Quality or the State
21 Department of Agriculture. Each groundwater
22 protection agency, as such term is defined by Section
23 1-1-201 of Title 27A of the Oklahoma Statutes, shall
24 be responsible for developing and enforcing
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1 groundwater protection practices to prevent
2 groundwater contamination from activities within their
3 respective jurisdictional areas of environmental
4 responsibility, and
5 d. the proposed use is not likely to degrade or interfere
6 with springs or streams emanating in whole or in part
7 from water originating from a sensitive sole source
8 groundwater basin as defined in Section 1 of this act.
9 B. Except as otherwise provided in subsection C of this
10 section, a regular permit shall allocate to the applicant the
11 proportionate part of the maximum annual yield of the basin or
12 subbasin. The proportionate part shall be that percentage of the
13 total annual yield of the basin or subbasin, previously determined
14 to be the maximum annual yield as provided in Section 1020.5 of this
15 title, which is equal to the percentage of the land overlying the
16 fresh groundwater basin or subbasin which the applicant owns or
17 leases and which is dedicated to the application.
18 C. If the lands dedicated to the application overlie two or
19 more groundwater basins and both basins have had maximum annual
20 yields determined, the amount to be authorized by the regular permit
21 shall be calculated on the basin having the greatest maximum annual
22 yield. If the lands dedicated to the application overlie two or
23 more groundwater basins or subbasins and the maximum annual yield
24 has been determined for at least one but not all the basins or
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1 subbasins, a temporary permit may be issued to the applicant if the
2 applicant demonstrates by substantial competent evidence that the
3 water to be withdrawn by the temporary permit will not be taken from
4 a basin or subbasin for which the maximum annual yield has been
5 determined. If the land overlies two or more groundwater basins or
6 subbasins and the maximum annual yield has not been determined for
7 any of the basins or subbasins, more than one temporary permit may
8 be issued for the land if the applicant demonstrates by substantial
9 competent evidence from which basin the water will be withdrawn for
10 each of the permits.
11 D. The permit shall specify the location of the permitted well
12 or wells and other terms and conditions as specified by the Board,
13 including, but not limited to, the rate of withdrawal, the level of
14 perforating and the level of sealing the well. A regular permit
15 shall not be granted for less than the remaining life of the basin
16 or subbasin as previously determined by the Board.
17 E. If the Board's final action to approve an application is
18 appealed, the applicant may take and use groundwater as is set forth
19 under the permit while any appeals are pending with the Board, in
20 district court, or in the appellate courts.
21 F. If all statutory requirements for groundwater permits are
22 fulfilled and the Board approves the application, appeals seeking to
23 prohibit the use of water based solely on the category of beneficial
24 use, industry, or entity applying to use the water are considered to
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1 have no genuine issue as to any material fact and shall be dismissed
2 pursuant to Section 2056 of Title 12 of the Oklahoma Statutes.
3 Further, such claims shall be considered frivolous and the court may
4 impose sanctions against the appellant, the appellant's attorney, or
5 both including requiring the appellant to reimburse the appellee for
6 reasonable costs and expenses such as reasonable attorney fees and
7 other expenses incurred as a result of the appeal.
8 SECTION 3. This act shall become effective November 1, 2023.
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10 59-1-5170 AQH 12/05/22
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