Water in southeastern Oklahoma, particularly in Sardis Lake, has ignited a firestorm of controversy which could impact the policies regarding our most precious natural resource for generations to come.

The Choctaw and Chickasaw Nations filed a lawsuit in federal court to enjoin the Oklahoma Water Resources Board from issuing a permit to the Oklahoma City Water Utilities Trust to pump water out of Sardis Lake and transport it to Oklahoma City. The tribes also claim water rights in Lake Atoka, Kiamichi Basin, Clear Boggy Basin, and other areas.

Pete White, Oklahoma City council member and Chair of the Oklahoma City Water Utilities Trust, recently authored an editorial that appeared in The Oklahoman. The editorial referred to “over 20 treaties” between the tribes and the U.S. Government, one of which “revokes previous treaty rights after the tribes sided with the Confederacy during the Civil War.” The only treaty invoked by the Chickasaw and Choctaw tribes in this particular dispute is the Treaty of Dancing Rabbit Creek. That treaty, signed in 1830, conveyed the tribal lands whose water is in dispute today. There has been no treaty revoking the Treaty of Dancing Rabbit Creek.

Pete White makes no mention of treaty names. He provides no specifics, but strongly implies that the Indian tribes are traitorous and therefore deserve to have their rights trampled yet again. He implies, but does not openly state, that the tribes do not have a meritorious suit because the treaty upon which they base that suit has been revoked. Accepting his premise as true, one must reach a conclusion that is patently false. According to the U.S. Constitution, the ‘supreme law of the land’, the Treaty of Dancing Rabbit Creek is still good law. If it had been revoked, the tribes’ case would have already been thrown out of federal court.

The Choctaw and Chickasaw tribes allege in their lawsuit that the permit granted by the Oklahoma Water Resources Board to the Oklahoma City Water Utilities Trust would give the Trust the right to withdraw up to 90% of the annual estimated sustainable yield of Sardis Lake. Sustainable yield is the level of water that can be extracted from the system without compromising the ecosystem and the productivity of the resource. Thus, the Oklahoma City usage permit would place Sardis Lake dangerously close to environmental damage. In the case of drought and/or increased demand for use, Oklahoma City’s demands could endanger recreational uses upon which many local businesses depend. Oklahoma City is self-interested, and would hold southeastern Oklahoma’s resources subservient to its own water demand.

Although Oklahoma City clearly has a stake in the game that has nothing to do with the needs of all Oklahomans, Governor Fallin in her State of the State address implied strongly that the tribes may not share the goal of negotiating in good faith. This implication is insulting, considering the history of government-to-government relations between the tribes and the United States. While things are better, in the past the federal government has treated the tribes unfairly; Gov. Fallin now wants the State of Oklahoma to do the same.

Surface water, such as the water in dispute in Sardis Lake, are considered publicly-owned and subject to use permits issued by the Oklahoma Water Resources Board (OWRB).

Before the OWRB issues a permit to appropriate surface water, 4 conditions must be met. 1) the applied for amount of unappropriated water must be available, 2) a present or future need for the water must exist and the intended use must be beneficial, 3) the use of water must not interfere with domestic or existing appropriative uses, and 4) the use must not interfere with existing or proposed beneficial uses within the stream system and the needs of the area’s water users if the application is for the transportation of water for use outside the area where the water originates.

The Oklahoma City permit application potentially violated both the third and fourth requirements. We do not know what the environmental impact will be on the Kiamichi River or Sardis Lake. Allowing the water levels in Sardis to fluctuate could devastate the fishing industry. Until we have the answers to these questions, we cannot know whether Oklahoma City should legally be granted its permit.

Recreational uses for fishing and tourism are beneficial uses, and the economy of southeastern Oklahoma depends largely on those uses. We need to find a solution to this dispute that advances the interests of all Oklahomans, and not just central Oklahomans. We can do this by doing a proper assessment of the use proposed by Oklahoma City. If that use would harm southeastern Oklahoma’s existing beneficial uses, the permit should be overturned in court. We cannot allow central Oklahoma to dictate to southeastern Oklahoma the shape of its economy, but that is a very real possibility if Oklahoma City is awarded its permit to the water of Sardis Lake.

Brian Renegar is an Assistant Minority Floor Leader and Senior Adviser on agricultural issues in the Democratic Caucus, and represents House District 17, which encompasses parts of Haskell, Latimer, Le Flore and Pittsburg counties. He resides with his family in McAlester.

You can read a copy of the removal order here

Read the Stigler News Sentinel story on that OWRB meeting here

See all issues of our quarterly paper here

“Citizens of the Chickasaw Nation, like all Oklahomans, have a vital interest in maintaining the conditions necessary to ensure a strong economy and a thriving natural environment for our children and grandchildren,” said Bill Anoatubby, Governor of the Chickasaw Nation. “Because sustainable management of our water resources is imperative for the progress and prosperity of all Oklahomans, we have worked diligently to establish a working relationship with the state on this issue.. Unfortunately, our efforts have been unsuccessful, leaving us no realistic alternative to legal action.”

Tribal efforts to establish negotiations regarding management of water resources can be traced back at least a decade. Three years ago the Chickasaw Nation sent a letter to then Oklahoma Governor Brad Henry and Oklahoma Water Resources Board Executive Director Duane Smith. That letter, dated June 10, 2008, expressed support for Oklahoma’s effort to update the water plan but also communicated the critical concern that the effort had excluded government-to-government dialogue between the state and tribes. Without such dialogue, the Nation said, the State’s water planning would be inadequate and flawed.

Offering no meaningful response, the State never took steps to engage substantively with the Nations on the subject.

Stephen Greetham, counsel for the Chickasaw Nation, said today’s action was filed to protect tribal water rights against one-sided action by the state of Oklahoma.

“The Chickasaw and Choctaw Nations hold treaties with the United States that secure prior and paramount rights to the ownership and management of water resources throughout their territory,” said Greetham. “This action seeks declaratory and injunctive relief to bar unilateral state action on water resource management issues. The Nations’ treaties secured them a permanent homeland, and without the sustainable and long-term management of its water resources, that homeland will be undermined.”

Recent formation of a state joint legislative water committee based on the presumption of the supremacy of state law on this issue is yet another indication of disregard for tribal rights and demonstrates a commitment by the state to take unilateral action.

“A lack of any real progress on the initiation of meaningful government-to-government talks on these matters, leads us to believe further inaction would simply mean the deepening of our present challenges,” Choctaw Chief Gregory E. Pyle. “Therefore, we have concluded that we must act now to protect the Nations’ rights by taking our case to the federal courthouse.

“The Choctaw Nation is committed to protecting and preserving the sustainability of water in Southeast Oklahoma and the rest of the state. We will continue to seek a resolution that works for all of us, and I have faith that through the Court, we can reach a decision that is fair, meaningful, and serves the best interest of all Oklahomans.”

Michael Burrage, lead counsel for the Chickasaw and Choctaw Nations on this action said the suit is carefully structured to avoid disruption to the public.
“We haven’t gone out looking for a fight on all this. We’re using the courts to protect our water, period. The Nations’ have been working for a solution for a long time, now, but they can’t do that alone. Given that the State couldn’t figure out a way to the table, we had to make our way to the courthouse,” said Burrage.

View the complaint as filed and other pertinent documents at:

1 Kiamichi River – Pictures taken by John Redman –of wasted OK water heading to the gulf!

2 Kiamichi River  2 - Another Picture taken by John Redman –showing  Oklahoman’s reported massive amounts of  wasted OK water heading to the gulf!

3 Cucumber Creek, upper tributary of Mt. Fork as it crosses 259 hwy

Kiamichi River

Another Spot on Kiamichi River Same Day

Cucumber Creek

I am writing in conjunction with Representative Ed Cannaday and Senators Jerry Ellis and Richard Lerblance to request an Attorney General opinion to determine whether the Oklahoma Comprehensive Water Plan’s enabling act has been honored.

The Comprehensive Water Plan’s Enabling Act: 82 O.S. § 1086.2(1) Part B: “The primary purpose governing all exercise of powers hereunder shall be to maximize and not to minimize the alternatives available to all citizens, municipalities and other water-user entities in acquiring water for beneficial use.” Representative Cannaday was told at the Stigler Area Water Plan Meeting that non-consumptive water use (i.e., recreation) was not studied.

Secondly, does a conflict of interest exist? CDM Engineering did not report or disclose to the Comprehensive Water Plan’s public participants or to the general public that, simultaneously, while under water plan contract(s) to OWRB and USACE, CDM worked for the Oklahoma City Water Trust Authority on a $800,000+ engineering contract to bring Sardis Lake water to the Oklahoma City area. This seems to be an ethical conflict of interest. CDM’s contract required ‘Certificates of No Lobbying Activities, No Conflicts of Interest & No Gratuities Allowed.’

We respectfully request an Attorney General opinion as expeditiously as possible on this most important issue to all Oklahomans. Please contact my Capitol office if I can provide further information.

Sincerely,

Brian Renegar, DVM
State Representative, District 17

Richard Lerblance
State Senator, District 7

Jerry Ellis
State Senator, District 5

Ed Cannaday
State Representative, District 15