Yours, Mine, But Not Ours: Groundwater Severance
By Kaylee P. Davis-Maddy, Associate Attorney of Doerner, Saunders, Daniel & Anderson, LLP
Water, like other minerals, may be severed or split from the surface estate. In fact, it is becoming more common to see groundwater rights severed from the surface, where one party owns the surface (and, perhaps, other minerals) and another owns the groundwater. This tends to surprise landowners, intending to use or sell the land’s water.
In Oklahoma, groundwater taking and use is regulated by the Oklahoma Groundwater Law, Title 82 Oklahoma Statutes, § 1020.1 et seq. The owner of the land over groundwater has the right to use that groundwater for domestic use, up to 6 acre-feet of water per year. For any other uses (irrigation, oil and gas, agriculture, etc.), a landowner must apply to the Oklahoma Water Resources Board (OWRB) to take and use the water.
In support of the sustainability of groundwater resources, Oklahoma law provides limitations on the taking of groundwater by landowners, depending upon the location of the groundwater and the characteristics of the aquifer from which it comes. Once the OWRB completes a study on the aquifer, the OWRB will set the amount each landowner can take from that aquifer based on the number of acres owned. This is referred to as that landowner's equal proportionate share, or EPS. If the aquifer from which the landowner intends to take groundwater has not been studied, landowners may take up to two acre-feet per year from the aquifer underlying their lands for non-domestic uses, in addition to the six acre-feet of domestic water.
Before granting a permit application for non-domestic groundwater use, the OWRB must determine whether the applicant has met the following four (4) factors:
(1) the applicant owns or leases the land above the groundwater basin;
(2) the applicant intends to beneficially use the groundwater;
(3) the intended use by the applicant will not result in waste; and
(4) the applicant’s proposed use of the groundwater is not “likely to degrade or interfere with springs or streams emanating in whole or in part from water originating from a sensitive sole source groundwater basin or sub basin.”
If the landowner has no need for groundwater or no plans to use it, the individual may sell or lease the groundwater or the right to use the groundwater.
The process to sever groundwater is very similar to severing other minerals. However, Oklahoma law states that severance is not presumed, and is not included in a “blanket reservation of minerals.” This means if a landowner sells the property and wants to keep the groundwater, the water rights must be specifically expressed. A good rule of thumb – if the “reservation of minerals” doesn’t say water, then water isn’t included. This also means that a landowner may believe he/she owns the groundwater, when in fact, the prior owner severed and sold off the rights a long time ago.
If a person owns the severed water right, or leases water rights from the surface owner, the individual may still obtain a groundwater permit, so long as he fulfills the four (4) factors listed above. Although the person does not own the land above the groundwater basin (e.g. the surface, factor 1), the OWRB allows a non-surface owner to obtain a permit if the person has permission from the surface owner. This permission is usually found in the groundwater lease or groundwater conveyance deed. The OWRB also provides a template document to meet this factor.
Issues arise when the landowner believes he owns the groundwater and applies for a permit. The OWRB does not determine the validity of contracts or deeds, or determine title, which means it may approve a groundwater permit to someone who has no right to one. Due to the EPS, defined above, only one party can use the water from the same acreage at the same time, which means that when the water rights holder applies for a permit, the landowner’s permit will be revoked.
The best way to determine if you own the groundwater is to check your deed or lease. Doerner Saunders can help you with water rights issues, including preparing and obtaining a groundwater permit at the OWRB. Feel free to contact Kaylee Davis-Maddy at 405-319-3513 or firstname.lastname@example.org to speak with a knowledgeable Oklahoma water law attorney today.
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