Oklahoma Groundwater Law: When Can Oil Companies Use Fresh Groundwater in Secondary Oil Recovery
TULSA LAW JOURNAL
Oklahoma Groundwater Law: W hen Can Oil Companies Use Fresh Groundwater in Secondar y Oil Recover y
Cynthia Kay Vaughan
It is the year 2020. The surface owner' of Blackacre, a large tract of
land in the Oklahoma Panhandle, engages in dry land farming. In order
to irrigate his crops, the surface owner wants to pump fresh groundwater
from the Ogallala Aquifer 2 (Ogallala). Additionally, there is a mineral
owner3 of Blackacre who leases the mineral estate to an oil producer.
The producer has one well on Blackacre which is producing very little
oil. To increase production, the producer proposes to pump fresh
groundwater from the
Ogallala for use in secondary
There is a problem, however. Since 1977, more than fifty percent of
the Ogallala's water supply has been depleted.4 In addition, an energy
1. There may be a separation of the mineral estate or mineral rights of a piece of real property
from the surface estate. Bodcaw Lumber Co. v. Goode, 160 Ark. 48, 55, 254 S.W. 345, 347 (1923).
The Arkansas court stated that "there may be such separation, and that mineral rights, even those
including gas ... may be the subject-matter of a separate sale or reservation .. " Id.
2. Under the former Oklahoma Ground Water Law, OKLA. STAT. tit. 82, § 1002 (1971), the
term "groundwater" meant "water under the surface of the earth regardless of the geologic structure
in which it is standing or moving." Under the new Oklahoma Groundwater Law, OKLA. STAT. tit.
82, § 1020.1(A) (1981), the term groundwater means "water under the surface of the earth
regardless of the geologic structure in which it is standing or moving outside the cut bank of any definite
Groundwater is sometimes referred to as "subterranean." There are two types of subterranean
waters: "percolating" and "underground streams." See Canada v. City of Shawnee, 179 Okla. 53,
54, 64 P.2d 694, 696 (1937). The Oklahoma Supreme Court stated, "[p]ercolating waters are those
which seep, ooze, filter, and otherwise circulate through the subsurface strata without definite
channels" and "[u]nderground streams are.., water passing through the ground beneath the surface in
defined channels." Id. See also Fellhauer v. People, 167 Colo. 320, 447 P.2d 986 (1968) (Subsurface
channel refers to part of the alluvium beneath, underlying, and adjacent to a surface channel.).
Aquifer is defined as "[w]ater-bearing rock strata." WILLIAMS & MEYERS, MANUAL OF OIL
AND GAS TERMS 49 (7th ed. 1987).
3. See supra note 1.
4. Massey & Sloggett, ManagingGroundwaterin the OgallalaAquifer forIrrigation,9 OKLA.
CITY U.L. REv. 379, 383 (1984). The Ogallala covers several states including New Mexico,
Oklahoma, and Texas. It is expected that "more than 50 percent of the quantity of water in storage
in 1977 will have been used by 2020, while nearly two-thirds of the Texas supply will be used during
the period." Id. See also Note, Oil and Gas: Water and Watercourses: The Right to Use Fresh
Groundwater in Waterflood Operations, 35 OKLA. L. Rv. 158 n.3 (1982) (citing OKLAHOMA
crisis, more severe than the 1970's oil shortage, has existed for quite some
time. Because the Ogallala is a limited natural resource, Oklahoma law
requires the surface owner and the producer to apply for permits from
groundwater from the Ogallala.' In deciding whether to issue these
permits, the Board must use criteria set out in the Oklahoma Groundwater
Under the present Oklahoma Groundwater Law, the Board's
decision about issuing groundwater permits depends on whether irrigation
and secondary oil recovery can be classified as waste.7
,examining Oklahoma case law and the methods used by other Ogallala
states for apportioning groundwater, it is apparent that the waste test is
not the best method for determining whether oil companies should be
given permits for using fresh groundwater in secondary oil recovery
WATER RESOURCES BD., OKLAHOMA COMPREHENSIVE WATER PLAN, 72,73 (1980)). The ground
water supply in Oklahoma is becoming depleted because:
The natural recycle of water into the underlying rock formations from precipitation
and seepage along stream beds is not sufficient in western Oklahoma. To make agricultural
operations economically feasible, farmers in this area must pump more water out of the
ground than is naturally flowing back into underground storage. Such mining or
overdrafting of the groundwater supplies threatens to deplete the supply within the foreseeable
During the 1950s, the surge in irrigated agriculture in western Oklahoma resulted in
declines in the water table of five to ten feet per year. In the Oklahoma Panhandle, wells
that had yielded 1,000 gallons per minute now produce only 500 to 800 gallons per minute.
Water wells must be drilled deeper as the groundwater supply diminishes. Water
encountered 250 feet below the surface twenty years ago now requires drilling to a depth of 350
feet or more.
To pump water from greater depths requires more fuel. As energy costs soar, many
farmers and cattlemen are unable to afford the rising costs of irrigation. Although water
may be available at greater depths, technological and economic restraints may prevent its
use, and the aquifer can be considered effectively depleted.
revised the Oklahoma Groundwater Law and adopted a utilization
approach.' 0 Now, the amount of groundwater used in Oklahoma is
controlled by "use regulation and management."'" In order to control and
manage the amount of water pumped from the ground, the Oklahoma
Groundwater Law requires users to obtain permits from the Board
before extracting the water. 2 The Oklahoma Groundwater Law
provides for three types of permits: temporary, regular, and special. 3
regular and temporary permits authorize the use of groundwater for any
beneficial purpose other than domestic use. 4 Currently, the Board only
issues temporary permits which have the same effect as regular permits.
The Board cannot issue regular permits until it completes a hydrologic
survey determining the maximum yield of Oklahoma groundwater basins
or subbasins. '
A temporary permit grants the user "two (
) acre-feet [of
municipal, industrial, irrigational, recreational, and other beneficial uses in the basin at the then
current rates of withdrawal.'" Id. at 41 n.1 (citation omitted). See also Bowles v. City of Enid, 206
Okla. 611, 616, 245 P.2d 730, 735 (1952). The policy of the old groundwater law was "to conserve
and protect the ground water resources of the State and for that purpose to provide reasonable
regulations for the taking and use of ground water." Id. (quoting OKLA. STAT. tit. 82, § 1003
10. The 1972 Act, OKLA. STAT. tit. 82, § 1020.2 (1981), provides the policy behind the present
It is hereby declared to be the public policy of this state, in the interest of agricultural
stability, domestic, municipal, industrial and other beneficial uses, general economy, health
and welfare of the state and its citizens, to utilize the groundwater resources of the state,
and for that purpose to provide reasonable regulations for the allocation for reasonable use
based on hydrologic surveys of fresh groundwater basins or subbasins to determine a
restriction on the production, based upon the acres overlying the groundwater basin or
subbasin. The provisions of this act shall not apply to the taking, using or disposal of salt
water associated with the exploration, production or recovery of oil and gas or to the
taking, using or disposal of water trapped in producing mines.
Id. (emphasis added).
11. Oklahoma Water Resources Bd., 711 P.2d at 41.
12. OKLA. STAT. tit. 82, § 1020.7 (1981) provides that:
Any person intending to use groundwater shall, after his testing is completed, make
application to the Board for an appropriate permit as provided in Section 11 before
commencing any drilling for such purposes and before taking water from any completed well
heretofore drilled. Such application to take and use groundwater shall be on a form
provided by the Board and pursuant to the rules and regulations established by the Board.
The application heretofore filed with the Board shall be used in granting permits for
existing wells and the Board shall publish the notice of the hearing thereon.
Id. (footnote omitted). For the authority allocated to the Oklahoma Water Resources Board, see
OKLA. STAT. tit. 82, §§ 1085.1-86.6 (1981).
13. OKLA. STAT. tit. 82, § 1020.11 (1981).
14. Id. § 1020.11(A), (B).
15. Id. § 1020.1 1(B). This section states that: "A temporary permit is an authorization for the
same purposes as a regular permit but granted by the Board prior to the completion of the
hydrologic survey and the determination of the maximum annual yield of the basin or subbasin." Id.
"Groundwater basin" is defined as, "a distinct underground body of water overlain by
contiguous land and having substantially the same geological and hydrological characteristics and yield
capabilities." Id. § 1020.11(C).
"Subbasin" is defined as, "a subdivision of a water basin overlain by contiguous land and having
groundwater] annually for each acre of land owned or leased by the
applicant" and must be revalidated on an annual basis.1 6 Regular permits,
on the other hand, do not have to be revalidated and are issued according
to the individual applicant's "proportionate part of the maximum annual
yield of the basin or subbasin." 7 Special permits are issued in the place
of regular or temporary permits when applicants need groundwater for
beneficial uses requiring larger quantities of water than those allocated
under regular or temporary permits. 18
When the Board reviews applications for permits, the Oklahoma
Groundwater Law requires the Board to look at two main criteria:
(1) whether the applicant's proposed use of the water is beneficial 19 and
) whether the groundwater user will be committing waste. 20 Both
criteria must be met by groundwater users such as oil companies who seek
to use groundwater in secondary recovery operations.2 1
The duration of an oil and gas lease is controlled by the lease
provisions. 22 An oil and gas lease is broken down into a primary term223 and a
substantially the same geological and hydrological characteristics and yield capabilities." Id.
16. Id. § 1020.11(B).
17. Id. § 1020.9.
18. Id. § 1020.11(C). See Lowrey v. Hodges, 555 P.2d 1016 (Okla. 1976) (court held that
irrigation for growing crops is beneficial use).
19. OKLA. STAT. tit. 82, § 1020.9 (1981). See Lowrey, 555 P.2d at 1023 (If applicant's plan
does not demonstrate waste on its face, the individual protesting the application has the burden of
proving that waste will occur.).
20. OKLA.STAT. tit. 82, § 1020.15 (1981).
21. Id. § 1020.1. This section lists actions which constitute waste. Use of groundwater in
secondary oil recovery operations is not included in this list.
22. But see Champlin Petroleum Co. v. Ingram, 560 F.2d 994 (10th Cir. 1977), cert. denied, 436
U.S. 958 (1978) (ambiguity under oil and gas lease should be resolved in favor of lessor when two or
more equally reasonable constructions exist); Probst v. Ingram, 373 P.2d 58 (Okla. 1962) (oil and gas
lease governed by different rules than those for construction of contracts and conveyances, and is
most strongly construed against lessee). See also State ex rel. Comm'rs of Land Office v. Couch, 298
P.2d 452 (Okla. 1956); Beatty v. Baxter, 208 Okla. 686, 258 P.2d 626 (1953); Magnolia Petroleum
Co. v. Vaughn, 195 Okla. 662, 161 P.2d 762 (1945); Doss Oil Royalty Co. v. Texas Co., 192 Okla.
359, 137 P.2d 934 (1943); Crain v. Pure Oil Co., 25 F.2d 824 (8th Cir. 1928); Garfield Oil Co. v.
Champlin, 78 Okla. 91, 189 P. 514 (1920).
23. WILLIAMS & MEYERS, supra note 2, at 746-47, defines "primary term" as:
The period of time, typically five or ten years, during which a lease may be kept alive
by a lessee even though there is no production in paying quantities by virtue of drilling
operations on the leased land or the payment of rentals. After the expiration of the
primary term, the lease usually can be kept alive only by PRODUCTION IN PAYING
secondary term.2 4 In Oklahoma, oil leases usually provide that the lease
will continue after expiration of the primary term into the secondary
term so long as oil continues to be produced in "paying quantities."25
Thus, an oil company lessee's well must still be a producer if the lease is
to be perpetuated.2 6
To prevent expiration of a lease in its secondary term, when a well's
natural energy is becoming exhausted, oil companies will sometimes
inject water into the mineral formation (a process sometimes referred to as
"waterflooding" 27 ) to increase the amount of hydrocarbons recovered.28
To do this, an oil company must either bring water in from a source
external to the lease or use water available on the leased premises.
Sometimes saltwater is readily available for waterflooding. However, use of
saltwater in secondary operations is not always effective because it can
plug a producing well.2 9 Saltwater can also be too expensive to use.30
Furthermore, not all leases contain surface freshwater, and it is not
always clear when oil and gas lessees can legally use such water. 3 1 Fresh
groundwater is the next most feasible alternative in instances where
saltwater will not work and surface freshwater is not available.32
Since 1980, at least one to three acre-feet per year of fresh
groundwater has been pumped from the Ogallala for the irrigation of growing
crops alone.33 This rate of extraction has caused a severe decline in the
Ogallala's groundwater level because the "recharge rate by percolation
from rainfall rarely exceeds one acre-inch per acre per year."' 34
Extraction from the Ogallala for irrigation purposes, however, accounts for
only one use of the groundwater. Some other competing uses include
water for livestock,35 domestic use,36 and waterflooding operations.37
30. See Sun Oil Co. v. Whitaker, 483 S.W.2d 808, 812 (Tex. 1972). See also Note, supra note 4,
at 159 n.8.
31. Holt v. Southwest Antioch Sand Unit, Fifth Enlarged, 292 P.2d 998, 1000 (Okla. 1955)
("Whether the conveyance or reservation of the minerals provides therefore or not 'an owner of
minerals may * * * use such amounts of water from the land as is reasonably necessary to develop
the mineral rights.'" (quoting 58 C.J.S. Mines andMinerals § 159 (1955)); Mohawk Drilling Co. v.
Wolf,262 P.2d 892 (Okla. 1953) (court disallowed oil lessee's use of water from lessor's artificial
stock pond created for agricultural purposes, however, the court indicated that oil lessees can use
"riparian waters" located on leases); Vogel v. Cobb, 193 Okla. 64, 141 P.2d 276 (1943) (court said
lease stating that oil and gas lessee could use "water produced on said land for its operations
thereon" didn't mean lessee could use water for supply houses not located on lease); Arnold v.
Adams, 174 Okla. 57, 61, 294 P. 142, 146 (1930) (lease stated, "'[1lessee shall have the right to use,
free of cost, gas, oil and water produced on said land for its operation thereon, except water from
wells of lessor.' Clearly this does not mean that lessee was entitled to use water from the private
pond or tank of lessor....").
32. See Ricks Exploration Co. v. Okla. Water Resources Bd., 695 P.2d 498 (Okla. 1984) (oil
and gas lessee has right to use groundwater for development of mineral estate); Mack Oil Co. v.
Laurence, 389 P.2d 955, 961-62 (Okla. 1964) ("[C]onveyance of the surface [which] carried with it
both the soil and underground water did not invest plaintiff (grantee) with such possessory right
therein as to deprive holders of the mineral rights herein conveyed to use of water found under the
land for purposes necessary and incidental to its own operations thereon.").
33. See Massey & Sloggett, supra note 4, at 379. The Ogallala Aquifer extends "over parts of
six states - Colorado, Kansas, Nebraska, New Mexico, Oklahoma and Texas." Massey & Sloggett,
supra note 4, at 379.
34. Massey & Sloggett, supra note 4, at 381.
35. Massey & Sloggett, supra note 4, at 384. Statistics indicate that "[c]urrently, the Ogallala
area produces more than 38 percent of the nation's total value of livestock." Massey & Sloggett,
supra note 4, at 384.
36. See OKLA. STAT. tit. 82, § 1020.3 (1981) which states that, "[a]ny landowner has a right to
take groundwater from land owned by him for domestic use without a permit. Wells for domestic
use shall not be subjected to well spacing orders, but are subject to sanctions against waste." See also
Hodges v.Oklahoma Water Resources Bd., 580 P.2d 980, 983 (Okla. 1978) ("[Ihe statutes (82
O.S.Supp. 1972, §§ 1020.1, et seq.) do not require the Board to consider domestic priorities before
granting a permit. We now hold that the fact that it is not necessary to obtain a permit before taking
As the use of the Ogallala increases and the amount of available
groundwater decreases,"8 users of this limited resource will become
increasingly antagonistic. Oklahoma lawmakers will then be forced to
choose who will be given permits for groundwater extraction.
Agricultural users will argue that too many permits given to mineral owners and
oil lessees will leave an insufficient supply of water for irrigation
purposes, thus damaging Oklahoma's agricultural economy. Farmers and
ranchers will also argue that groundwater use in secondary oil recovery
operations constitutes waste because after the water is injected into a
mineral reservoir, it may be lost forever.3 9 Chemical additives used in
waterflooding operations can also contaminate the water so much that it
cannot be applied to other beneficial uses. 4 Lastly, as the aquifer
becomes depleted, the quality of the water will deteriorate.4 1
Oil company lessees, on the other hand, will point out that farmers
need petroleum products to run their farming equipment. In addition,
farmers need oil and gas to supply the energy necessary for the electric
pumps which they use to withdraw fresh groundwater from their water
wells.4 2 Use of groundwater in irrigation operations can also be
considered waste because when crops are watered, the water combines with
chemicals from fertilizers making it impossible to reuse the water.
Presently, applicants for groundwater permits, including farmers
and oil companies, must prove that their proposed use is beneficial and
not wasteful. This standard, however, will be insufficient to settle future
disputes as to who will receive permits. A better test would be to require
applicants to prove that their proposed use is beneficial and will not
impair an already-existing right to use groundwater from the same source.4 3
water for domestic use does not give water for domestic use a priority over water put to other
beneficial use."). See also Jensen, The Allocation ofPercolatingWater Underthe Oklahoma Ground
Water Law of 1972, 14 TULSA L.J. 437, 460-61 (1979).
37. See supra notes 22-32 and accompanying text.
38. See Massey & Sloggett, supra note 4, at 381.
39. See Note, Oil and Gar Water and Water Courses: The Right to Use Ground Water in Oil
and Gas Productionin Oklahoma, 22 OKLA L. REv. 99, 104 (1969).
40. Comment, Fresh Groundwater and Tertiary Oil Recovery: Oklahoma Water Resources
Board v. Texas County Irrigation& Water Resources Association (Mobil Oil Corp.), 21 TULSA L.J.
565, 578-79 n.117 (1986).
41. See Massey & Sloggett, supranote 4, at 383-84, where it is contemplated that "[l]arge
withdrawals for irrigation purposes, especially in areas with low transmissivity, may lower the head
sufficiently to induce upward migration of water high in chloride from lower aquifers, reducing the
quality of water available for irrigation."
42. See Comment, supra note 40, at 565.
43. See infra notes 160-62 and accompanying text.
Users of groundwater from the Ogallala must submit applications
for groundwater permits to the Oklahoma Water Resources Board
(Board). After receiving the application, the Board conducts a hearing
to decide whether to issue the applicant a permit. During the hearing,
the Board must determine whether the proposed use is beneficial and
whether the proposed use is waste.' The following cases represent
Oklahoma Supreme Court review of Board decisions concerning permits.
In each dispute, the Oklahoma Supreme Court faced the issue of whether
a proposed use of fresh groundwater was waste. The court refused in
each instance, however, to determine whether the proposed use was or
was not waste.
Lowrey v. Hodges
A defendant's application for a permit which proposed to utilize 320
acre-feet of the Ogallala's fresh groundwater for irrigation purposes was
challenged in Lowrey v. Hodges4 5 by plaintiffs who alleged that such use
would be waste." The Lowreys wanted to use the water on their
160acre farm in Beaver County, Oklahoma.47 The Hodges alleged that "the
granting of [the] permit would endanger the water level [and] that the
water would be drained from under [their] properties." 4
The Board heard the dispute on September 13, 1974 and the
Hodges' motion to dismiss the application was denied.49 On October 8,
1974, the Board granted the Lowreys a temporary permit. 50 At that
44. See supra notes 19-21 and accompanying text.
45. 555 P.2d 1016 (Okla. 1976).
46. Id at 1018.
48. Id at 1019.
49. Id After the September 13, 1974, hearing, another protest was filed by the towns of Forgan
and Beaver, Oklahoma. However, the towns did not meet the writing and filing requirements for
protests under the law. Id
50. Id. The factors that the Board must consider at a hearing before granting a permit are set
forth in OaA. STAT. tit. 82, § 1020.9 (1981):
At the hearing, the Board shall determine from the evidence presented by the parties
interested, from the hydrologic surveys and from other relevant data available to the Board
and applicant, whether the lands owned or leased by the applicant overlie the fresh
groundwater basin or subbasin and whether the use to which the applicant intends to put the
water is a beneficial use. If so, and if the Board finds that waste will not occur, the Board
shall approve the application by issuing a regular permit. A regular permit shall allocate to
the applicant his proportionate part of the maximum annual yield of the basin or subbasin.
His proportionate part shall be that percentage of the total annual yield of the basin or
subbasin, previously determined to be the maximum annual yield.., which is equal to the
time, the Board made several findings of fact addressing issues brought
up by the Hodges' protest, including the conclusion that there was
insufficient evidence to show that the Lowrey's proposed use would waste
After the Board conducted the hearing in which it granted a permit
to the Lowreys, the Hodges filed a petition for review with the Oklahoma
County District Court.5 2 On the issue of waste, the trial court disagreed
with the Board finding that there was not enough evidence to show that
waste would not occur, thus rendering the Board's findings inadequate.5 3
On appeal, the
court's decision and addressed the waste issue.5 4 The court concluded
"that no evidence was offered to show that waste would or was likely to
occur if [the Lowrey's] permit was granted."5 5 In reaching this decision,
the court pointed out that before receiving a permit an applicant must
first demonstrate the method of irrigation that they intend to use in a
particular area, and then it is the Board's duty to determine from this
information whether waste will occur.56 The party protesting the
application has the burden of coming forth with evidence of waste.5"
the court interpreted the
plat[ing] an after-the-fact finding of waste and set[ting] out the procedure
for criminal prosecution, injunction, and suspension of a permit when
percentage of the land overlying the fresh groundwater basin or subbasin which he owns or
leases. The permit shall specify the location of the permitted well or wells. A regular
permit shall not be granted for less than the remaining life of the basin or subbasin as
previously determined by the Board.
Id. (footnote omitted).
51. Lowrey v. Hodges, 555 P.2d 1016, 1021 (Okla. 1976). The Hodges' written protest argued
"that the withdrawal of water from the Ogallala Aquifer at this location would create waste as
defined by 82 O.S. § 1020.15." Id at 1019. The written protest further went on to state "that at this
particular location, the Ogallala Aquifer does not replenish itself, even under the present domestic
uses in the area; that the proposed well locations are too close to the property line and a minimum
withdrawal of water would deplete the storage under the grounds; and, that the allowance of said
permit ... would be in violation of the Constitution of the United States and the Constitution of the
State of Oklahoma and of due process of law." Id at 1020.
52. Id at 1021.
54. Id at 1023.
55. Id. at 1025.
56. Id. at 1023.
57. Id. The Oklahoma Supreme Court also stated that:
If the plans submitted to the Board do not on their face demonstrate such waste, and
the Protestants fail to introduce evidence to substantiate that waste will occur, and the
Board finds that waste will not occur, the [Groundwater] statute has been satisfied and
further questions concerning waste must await completion of the project.
and if it occurs." 8 Thus, the court seemed unwilling in its decision to
conclude whether the applicant's proposed use was waste. Instead, it
focused on which party has the burden of proving whether an applicant's
proposed use will cause waste. In short, the court left the decision as to
what constitutes a wasteful practice up to the Board.
Texas County Irrigation& Water Resources Association v.
Cities Service Oil Co.
Cities Service Oil Company (Cities Service) applied for a
groundwater permit in Texas County Irrigation& Water ResourcesAssociation v.
CitiesService Oil Co.," desiring to use fresh groundwater in a waterflood
project in Texas County, Oklahoma.' Cities Service proposed pumping
235.23 acre-feet of fresh groundwater annually from the Ogallala for
secondary oil recovery operations in the waterfiood project. 61 No protest
was filed against Cities Service's application before the Board's first
administrative hearing on June 1, 1973.62 At the Board's next meeting on
July 10, 1973, the Texas County Irrigation and Water Resources
Association (Association) protested Cities Service's application. 63 Despite the
Association's protest, the Board granted Cities Service a permit.64
The Association then sought review under the Administrative
Procedures Act65 by the District Court of Texas County and obtained a
reversal of the Board's decision to grant the permit.6 6 The reversal was
based on the trial court's conclusion that the use of fresh groundwater in
waterilood operations for secondary oil recovery is waste.67 Cities
Service and the Board appealed the trial court's decision to the Oklahoma
ment regarding the waste issue. First, they argued that the use of fresh
groundwater in secondary oil recovery operations is a beneficial use.6 9
Second, they argued that such use does not constitute "per se" waste.7'
The Association, on the other hand, argued that the Oklahoma
Groundwater Law's definition of waste "requires such fresh water use to
constitute waste, without exception and under any circumstances."'" To
resolve this dispute, the Oklahoma Supreme Court looked to both the
Oklahoma Groundwater Law's definition of waste72 and the legislative
intent behind the law.7 3
The court then determined that there was no
69. Id. See also supra note 19 and accompanying text.
70. CitiesService Oil Co., 570 P.2d at 50-51.
71. Id. at 51.
72. I Both Cities Service and the Association advocated that the definition of waste
contained in OKLA. STAT. tit. 82, §§ 1001-1018 (1971) applied instead of the distinction found in OKLA.
STAT. tit. 82, §§ 1020.1-1020.22 (Supp. 1973). However, the court elected not to give effect to one
definition over the other insofar as both definitions were essentially the same and that neither would
be dispositive of the principal issue of the case. Id. See also OKLA. STAT. tit. 82, § 1020.15 (1981),
which states that:
The Board shall not permit any fresh groundwater user to commit waste by:
1. Drilling a well, taking, or using fresh groundwater without a permit, except for
2. Taking more fresh groundwater than is authorized by the permit;
3. Taking or using fresh groundwater in any manner so that the water is lost for beneficial
4. Transporting fresh groundwater from a well to the place of use in such a manner that
there is an excessive loss in transit;
5. Using fresh groundwater in such an inefficient manner that excessive losses occur;
6. Allowing any fresh groundwater to reach a pervious stratum and be lost into
cavernous or otherwise pervious materials encountered in a well;
7. Permitting or causing the pollution of a fresh water strata or basin through any act
which will permit fresh groundwater polluted by minerals or other waste to filter or
otherwise intrude into such a basin or subbasin;
8. Drilling wells and producing fresh groundwater therefrom except in accordance with
the well spacing previously determined by the Board;
9. Using fresh groundwater for air conditioning or cooling purposes without providing
facilities to aerate and reuse such water or
10. Failure to properly plug abandoned fresh water wells in accordance with rules and
regulations of the Board and file reports thereof.
Id. (footnote omitted).
73. CitiesService Oil Co., 570 P.2d at 51. The Oklahoma Supreme Court also looked at OKLA.
STAT. tit. 75, § 308 (1971) to ascertain legislative intent. The court concluded that the statute
reflected "a legislative intent that regardless of the circumstance, any and all use of fresh ground water
for secondary oil recovery is not, of itself, 'waste' under the ground water law." Cities Service Oil
Co., 570 P.2d at 51. The court also looked at H.J.R. 502, 26th Leg., 1957 Okla. Sess. Law 670 which
set out "five beneficial uses of water with 'providing food and fiber' having a third priority and
'increasing wealth' having the fourth priority." Cities Service Oil Co., 570 P.2d at 51. The court
then went on to say, "[p]resent mechanical farming coupled with energy problems forces
consideration of oil production, as well as irrigation, to be in both the third and fourth priorities of beneficial
uses. Irrigation needs not only fresh water, but energy to operate the irrigation pumps." Id.
statutory authority or legislative intent to show that use of fresh
groundwater in waterflooding operations is waste per se.74
court pointed out that its decision did not mean that use of fresh
groundwater in secondary oil recovery operations could never be waste.75
Lowrey, the Oklahoma Supreme Court again seemed hesitant to
determine when the use of fresh groundwater constitutes waste.
Oklahoma Water Resources Board v. Texas County Irrigation
& Water Resources Association
In Oklahoma Water Resources Board v. Texas County Irrigation&
Mobil Oil Corporation's (Mobil) applica
tion for a permit to withdraw an annual average of .744 acre-feet of
groundwater from the Ogallala was protested by the plaintiffs who
argued that such use constituted waste.7 7
Mobil wanted to use the water
for secondary and tertiary7"
waterflood operations located in
The Board granted Mobil the permit on August
16, 1979, after an administrative hearing at which the Texas County
Irrigation and Water Resources Association (Association) protested Mobil's
74. CitiesService Oil Co., 570 P.2d at 51. The court pointed out that "[a] statutory
construction which would lead to an absurdity will be avoided if this can be done without violating the
evident legislative intent." Id. (citing Wooten v. Hall, 442 P.2d 334, 336 (Okla. 1968)). In addition,
the court found that "[tihe evident legislative intent is not violated by this holding." Id. See also 12
Op. Att'y Gen. 205 (1980), where the Oklahoma Attorney General concurred with the CitiesService
Oil Co. decision which concluded that use of ground water in secondary oil recovery operations does
not constitute waste "per se." Id. at 207-08. The Attorney General's opinion stated that: "There is
no statutory provision in the current ground water law today which establishes preferred or
prioritized ground water uses. The current ground water law has established a policy of equal
proportionate sharing among all overlying landowners." Id at 208.
75. Cities Service Oil Co., 570 P.2d at 51.
76. 711 P.2d 38 (Okla. 1984).
77. Id. at 40. Mobil estimated that its maximum withdrawal "would occur in 1993 when 1.852
acre-feet of fresh ground water would be withdrawn; minimum use would occur in 1998 when .209
acre-feet of fresh ground water would be withdrawn." Id.
78. Tertiary oil and gas recovery operations are, "enhanced recovery methods ...
WILLIAMS & MEYERS, supra note 2 at 997.
Enhanced recovery of crude oil requires a means for displacing oil from the reservoir
rock, modifying the properties of the fluids in the reservoir and/or the reservoir rock to
cause movement of crude oil in an efficient manner, and providing the energy and drive
mechanism to force its flow to a production well. Chemicals or energy are injected as
required for displacement and for the control of flow rate and flow pattern in the reservoir,
and a fluid drive is provided to force the oil toward a production well.
WILLIAMS & MYERS, supra note 2, at 997.
application.80 The Association then sought judicial review by the
District Court of Texas County.8 1 The district court partially affirmed and
partially reversed the Board's decision. The court agreed with the Board
that use of fresh groundwater in secondary and tertiary oil recovery
operations is beneficial and not waste but further concluded that Mobil's
proposal of using the water off the leased premises was an "unreasonable use
of water from a critical ground water source. "82 The Board and Mobil
appealed the trial court's decision to the Oklahoma Supreme Court. 3
One of the issues analyzed by the Oklahoma Supreme Court on
appeal was whether use of fresh groundwater in secondary and tertiary oil
recovery operations constitutes waste.8 4 The court pointed out that the
Board's order lacked essential findings of fact which would support the
conclusion that use of fresh groundwater in secondary and tertiary oil
recovery is not waste.8 To resolve this issue, the court first looked to the
Board's Rules and Regulations 6 which define waste of water as "any act
permitting or causing the pollution of fresh water or the use of such
water in an inefficient manner or any manner that is not beneficial and is
further defined [in the Oklahoma Groundwater Law]." 87 The court also
examined its earlier decision, Texas County Irrigation& Water Resources
Association v. Cities Service Oil Co.88 Clarifying its holding, the court
stated that the use of fresh groundwater in secondary oil recovery
operations is not waste per se. The court explained that the Cities Service Oil
Co. decision did not mean that there are no circumstances under which
waterflooding might constitute waste.8 9
The court asserted that the Board only made general findings that
82. Id. at 41.
84. Id. at 44.
86. Id. See also Oklahoma Water Resources Board Rules, Regulations and Modes of
Procedure 9 (rev. ed. 1979).
87. Oklahoma Water ResourcesBd, 711 P.2d at 44. The court also consulted OKLA. STAT. tit.
82, § 926.1 (1981), which defines pollution as:
contamination or other alteration of the physical, chemical or biological properties of any
natural waters of the state, or such discharge of any liquid, gaseous or solid substance into
any waters of the state as will or is likely to create a nuisance or render such waters
harmful or detrimental or injurious to public health, safety or welfare, or to domestic,
commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock,
wild animals, birds, fish or other aquatic life.
Oklahoma Water Resources Bd., 711 P.2d at 44.
88. 570 P.2d 49 (Okla. 1977).
89. Oklahoma Water Resources Bd., 711 P.2d at 44.
waste would not occur.90
The court held that a mere recitation in the
Board's findings that waste will not occur is not enough because the
findings must be supported by evidence in the record. 9
In this case, there
was evidence contrary to the Board's finding presented at the August 16
administrative hearing.92 Testimony tended to show that the secondary
oil recovery operations in which Mobil sought to engage required that
detergent additives and polymers be mixed with the fresh groundwater so
that more oil would be recovered. 93
Mobil did not explain at the hearing
what specific chemical additives would be used, whether such chemicals
were harmful, or whether water mixed with the chemicals could be
purified by later recycling treatment.94 The court also felt that Mobil should
have proposed to the Board a method by which it could monitor, on a
regular basis, the decline of the Ogallala's water level. 95
court concluded that the Board failed in its duty to make necessary and
specific findings of fact as to whether Mobil's proposed use of the water
would be waste.96 The court then remanded the case to the Board for a
rehearing to obtain evidence and make essential findings of fact in order
to ensure that Mobil's proposed use would not cause waste by pollution
90. Id at 44-45. The Board's findings regarding waste stated that:
the Board acknowledges the variously related concerns and objections of protestants, the
same said concerns and objections being generally that the granting of the subject
application would result in waste. Respecting these objections and concerns, the Board finds and
determines that such objections are not supported nor sustained by, and are contrary to,
the reliable, competent, and substantial evidence presented herein, the same being as
reflected by the testimony and all exhibits presented, and such objections cannot therefore be
Id. at 45.
95. Id The court also pointed out that under Rule 820.1 of the Oklahoma Water Resources
Board, Mobil should have shown:
An economic study containing the following information:
(1) A detailed analysis of the relative cost of obtaining salt water and any other
feasible alternative versus the relative cost of obtaining fresh water,
) Total project costs and the amount of oil or gas expected to be recovered and the
value expected to be realized,
(3) The estimated value of fresh water for other purposes (purposes or uses common
to the area or vicinity subject of the application) as measured against the overall estimated
value of the oil or gas to be recovered,
(4) The additional expense per barrel recovered if the applicant is required to use or
treat salt water instead of fresh water in the recovery process, and
(5) An evaluation of other recovery methods or alternatives considered and why
recovery requiring the use of fresh water was deemed to be necessary or the most feasible.
or by depletion.97
Approaches of Other OgallalaAquifer States
Other Ogallala states9 8 have groundwater statutes similar to the
Oklahoma Groundwater Law. However, not all of these states take the
same approach on applications for groundwater use permits. All of these
states require applicants to prove that any proposed use of the water will
be beneficial, but not all require applicants to prove that their proposed
use will not be waste. In those states requiring applicants to prove that
waste will not occur, there is no case law on whether use of groundwater
in secondary oil recovery operations is waste. This is true even in states
like Oklahoma where the oil business is important to the state's
The Ogallala lies beneath eastern Colorado.99 The "Colorado
Ground Water Management Act"'1 "° (Colorado Act) requires
groundwater users to apply,for permits from the Colorado Ground Water
Commission (Commission).10 ' To obtain such permits in Colorado,
applicants must prove that they will apply the water to a beneficial use"°2
and that the proposed use will not waste groundwater or unreasonably
affect the rights of other groundwater users.'0 The Colorado Act defines
waste as "causing, suffering, or permitting any well to discharge water
unnecessarily above or below the surface of the ground."'" The
Colorado Act further provides for penalties in cases where groundwater users
are found to be committing waste.'0 5
In Fundingslandv. ColoradoGround Water Commission,106 the
Colorado Supreme Court indicated that the Colorado Act requires the
Commission to deny applications for drilling groundwater wells when the
applicant's proposed use "will unreasonably impair existing water rights
from the same source, or will create unreasonable waste.""1 7 The court
maintained that the Colorado Act provides the following criteria for
determining when waste will occur: (1) the location of the proposed well;
) the geologic condition of the area; (3) the average recharge rate of the
location's groundwater supply; (4) the priority and number of existing
persons using the groundwater from the same source; (5) the applicant's
proposed method of using the water; and (6) other appropriate matters to
such questions. 1'8 It is questionable whether application of this vague
test would classify the use of groundwater in secondary oil recovery
operations as waste.
The "Kansas Groundwater Exploration and Protection Act" 109
(Kansas Act) does not define waste. However, like Oklahoma
groundwater users, Kansas groundwater users must also apply for permits. 110
Applications for permits are submitted to the state's chief engineer111
who takes three factors into consideration when deciding whether to
grant a permit. First, the application to drill a well for groundwater
must be made in good faith.11 2 Second, the groundwater applicant's
proposed use must be beneficial." 3 Third, the Kansas Act does not require
the applicant to prove that waste will not occur, but does require that a
proposed use not "impair a use under an existing water right nor
prejudicially and unreasonably affect the public interest.""' 4
The oil industry is as important to Kansas' economy as it is to
Oklahoma's economy. Unlike oil lessees in Oklahoma, Kansas oil lessees
only have to show that a proposed use of groundwater is beneficial and
the user in writing of such violation and give him such time as may reasonably be necessary
Id....to correct deficiencies.
106. 171 Colo. 487, 468 P.2d 835 (1970).
107. Id. at 488, 468 P.2d at 836.
109. KAN.STAT. ANN.§§ 82a-1201 to -1215 (1977).
110. IaM§ 82a-709.
111. Id § 82a-709.
112. /M.§ 82a-711 (Supp. 1983).
not that the use will not be waste. However, Kansas oil lessees must be
able to show that the land (i.e., the leased property) is a real property
interest for purposes of the Kansas Act.1 1 Unfortunately, the Kansas
Act does not contain a definition of land" 6 and there are no Kansas cases
determining whether an "oil and gas lease is a real property interest for
the purpose of the water appropriation statutes."' 1 7
The "Nebraska Ground Water Management and Protection Act""18
(Nebraska Act) only requires permits of groundwater users in "control
or management areas.""' 9 Permits in control areas will be denied to
users when: (1) a proposed well's operation or location will conflict with
district regulations or controls; (
) a proposed water use will not be a
beneficial use of water for domestic, agricultural, manufacturing, or
industrial purposes; or (3) applicants submitting late permits did not act in
good faith because they failed to submit their applications in the requisite
amount of time.12 0 Therefore, applicants for groundwater permits in
Nebraska do not have to show that their proposed use will not waste
groundwater. The Nebraska Act only requires that groundwater users
prevent inefficient or improper runoff of the water to conserve
groundwater supplies. 12
New Mexico is an extremely dry state with desert areas receiving an
annual precipitation of only eight inches and mountain areas receiving as
much as thirty inches. 122 Precipitation is so low that New Mexico's
agricultural economy is dependent on groundwater. 23 To preserve New
115. Id. § 82a-708a. The statute requires that "[a]ny rights to the beneficial use of water
perfected under such application shallattachto the landson orin connection with which the wateris used
...I.d. (emphasis added). See also Neufeld, The Kansas WaterAppropriationStatutes and Their
Effect Upon the Oil and GasIndustry in Kansas, 50 J. KAN. B.A. 43 (1981).
116. Neufeld, supra note 115, at 50.
117. Neufeld, supra note 115, at 54.
118. NEB. REV. STAT. §§ 46-656 to -690 (1984).
119. Id. § 46-659. A control or management area is "any area so designated by the director
following a public hearing initiated and conducted pursuant to section 46-658." Id. § 46-657(
director in Nebraska is the Director of Nebraska Water Resources. Id. § 46-657(
120. Id. § 46-660.
121. Id. § 46-664.
122. Comment, New Mexico's Mine Dewatering Act: The Search for Rehoboth, 20 NAT.
REsouRcEs J. 653 (1980).
Mexico's large groundwater reserve, 24 the New Mexico legislature has
enacted the "Underground
Waters Act"1'2 5 (New
Mexico Act). Benefi
cial use is the standard for determining the right to receive groundwater
permits under this statute.126
The New Mexico Act does not expressly
include waste as a consideration for deciding when to issue permits.
Mexico case law indicates that a determination
whether waste will occur should be included in analyses of when
proposed uses are beneficial. 127 The New Mexico Act grants permits when,
"the proposed appropriation would not impair existing water rights from
the same source, is not contrary to conservation of water within the state
and is not detrimental to the public welfare of the state."' 128
In the only New Mexico case concerning waste, State ex rel.
Erickson v. McLean, 29 the New
Mexico Supreme Court analyzed the issue
concerning whether McLean's use of groundwater for irrigation purposes
When the case was tried in a lower court, a witness
he was acquainted with [McLean's water] well; that as far as he knew,
he did not remember anybody farming that place right at that time but
it was a flowing well and that the water was flowing out; and that as far
he knew, it was just running out on the grass; and that he did not know
how much of the area was covered with the water but knew that the
water was running all over the place. 13 1
The court concluded that under New Mexico law, such excessive
diversion of groundwater was waste and not beneficial. 132
There do not appear to be any reported cases of conflicts between
groundwater conservation and use of groundwater in secondary oil
recovery operations. Nevertheless, "[intensive
mining in the
northwestern quadrant of the state has caused increasingly difficult
conflicts in the management of groundwater resources in that area." 133 Even
though this conflict is principally controlled by the terms of the New
Mexico Mine Dewatering
Act, 134 the method used by
lawmakers in resolving this problem could carry over to possible later
disputes involving oil companies wanting to use groundwater in
secondary oil recovery operations.
Individual conservation districts (districts), under the Texas Water
Code 135 (Texas Code) regulate groundwater use in Texas. 136 Texas, like
other Ogallala states, requires groundwater users to obtain permits prior
to drilling or altering a water well.1 37 Districts are to issue the permits
and control the number of groundwater wells drilled "[i]n order to
minimize as far as practicable the drawdown of the water table or the
reduction of artesian pressure, or to prevent waste ... 38
Under the Texas
useful or beneficial use. Water is too valuable to be wasted, either through an extravagant
application for the purpose appropriated or by waste by misapplication which can be
avoided by the exercise of a reasonable degree of care to prevent loss, or loss of a volume
which is greatly disproportionate to that actually consumed.
133. Comment, supra note 122, at 653.
134. 1980 N.M. Laws, Ch. 148, § 2(B). The New Mexico legislature passed the Mine
Dewatering Act to "promote maximum economic development of mineral resources while ensuring that such
development does not impair existing prior water rights." Comment, supra note 122, at 661.
135. TEx. WATER CODE ANN. §§ 52.001 - 52.401 (Vernon 1972).
136. Id. § 52.021. The purpose of these districts is, "to provide for the conservation,
preservation, protection, recharging, and prevention of waste of the underground water of underground
water reservoirs or their subdivisions, consistent with... the Texas Constitution." Id.
137. Id. § 52.116. The Code states that "[dlrilling a well without a required permit or operating
a well at a higher rate of production than the rate approved for the well is declared to be illegal,
wasteful per se, and a nuisance." Id. § 52.120(a). See Friendswood Dev. Co. v. Smith-Southwest
Indus., 576 S.W.2d 21 (Tex. 1978) (groundwater users may be liable for negligent withdrawal of
groundwater from wells). See generally Teutsch, Controls and Remediesfor Ground Water-Caused
Land Subsidence, 16 Hous. L. REv. 283 (1979).
138. TEx. WATER CODE ANN. § 52.117 (Vernon 1972) (emphasis added). Permits may be
the drilling, equipping, or completing of wells, or for substantially altering the size of wells
or well pumps, or for all of these operations. Permits may be issued subject to the rules
made under Section 52.117 of this code and subject to terms and provisions with reference
to the drilling, equipping, completion, or alteration of wells or pumps that may be
necessary to conserve the underground water, prevent waste, minimize as far as practicable the
drawdown of the water table or the reduction of artesian pressure, or lessen interference
Id. § 52.114.
Code, the districts also have a duty to regulate spacing and production of
groundwater wells. 139
The language of the Texas Code indicates that the districts must
consider whether an applicant's proposed use is beneficial and whether
waste will occur before issuing groundwater permits. The Texas Code
definition of waste includes use which is not for a beneficial purpose,"
but does not say whether use of groundwater in secondary oil recovery
operations is waste.' 41
by "beneficial use."' 4 2
However, the statute does clarify what is meant
According to Texas law, "exploring for, produc
ing, handling, or treating oil, gas, sulphur, or other minerals" is a
beneficial use.' 43
Therefore, even though the Texas Code does not explicitly
say that use of groundwater in secondary oil recovery operations is not
waste, it does say that such use is a permitted beneficial use which in turn
allows districts to issue oil companies groundwater use permits.
Under the Oklahoma Groundwater Law (Oklahoma Law),
groundwater permit applicants must prove that their proposed use of
groundwater is beneficial and
Unlike the Texas
Oklahoma Law fails to explain what is meant by beneficial use of
In addition, while the Oklahoma Law does not define waste, it
139. Id. § 52.117.
140. Id § 52.001(6). The Texas Code defines waste as:
(A) withdrawal of underground water from an underground water reservoir at a rate and
in an amount that causes or threatens to cause intrusion into the reservoir of water
unsuitable for agricultural, gardening, domestic, or stock raising purposes;
(B) the flowing or producing of wells from an underground water reservoir if the water
produced is not used for a beneficial purpose;
(C) escape of underground water from an underground water reservoir to any other
reservoir that does not contain underground water;
(D) pollution or harmful alteration of underground water in an underground water
reservoir by salt water, other deleterious matter admitted from another stratum or from the
surface of the ground; or
(E) willfully causing, suffering, or permitting underground water to escape into any river,
creek, natural watercourse, depression, lake, reservoir, drain, sewer, street, highway, road
or road ditch, or onto any land other than that of the owner of the well.
Id But see Johnson, The Continuing Voids in Texas GroundwaterLaw: Are Conceptsand
Terminology to Blame?, 17 ST. MARY's L.J. 1281, 1283 (1986). Critics of the Texas Code allege that it
provides inadequate sanctions against waste.
TEx. WATER CODE ANN. § 52.001(6) (Vernon 1972).
142. Id. § 52.001(
143. Id. § 52.001(
144. See supra notes 19-21 and accompanying text.
145. OKi.A. STAT. tit. 82, § 1020.9 (1981). This section requires a proposed use to be beneficial,
but does not explain what is meant by the term "beneficial use."
does list several examples of uses which do constitute waste.' 46
Nevertheless, the Oklahoma Law fails to express whether groundwater use in
secondary oil recovery operations is waste. 4 7 The Oklahoma Supreme
Court also refuses to determine whether such use is waste. Instead, the
court merely says that use of groundwater in secondary recovery
operations is not "per se waste" 148 and that it is the Oklahoma Water
Resources Board's duty to determine when a proposed use is waste. 149
After taking into consideration the approaches of other Ogallala states
and the fact that groundwater is becoming increasingly scarce, should
Oklahoma lawmakers continue to require applicants for groundwater
permits, such as oil companies, to prove that their proposed use of the
water is not waste?
Not all Ogallala states require groundwater users to prove that their
proposed use will not be waste before they can obtain groundwater
permits.'5 0 Several states take an alternative approach. The best approach
is to focus not on whether the use is beneficial and not waste, but instead
to focus only on whether the proposed groundwater use is beneficial.
This test is easier for courts to apply and state lawmakers can still
discourage waste by requiring courts to prosecute groundwater users who'
commit waste. For example, in the New Mexico case, State ex
rel.Erickson v. McLean,' a defendant groundwater user allowed his well to flow
uncontrolled twenty-four hours a day. 5 2 The New Mexico Supreme
Court concluded that the defendant was committing waste and was thus
subject to reprimand.1 53 In the Texas case, Friendswood Development
146. Id. § 1020.15.
148. See supra notes 54-58, 69-75 & 84-97 and accompanying text.
149. See supra notes 85-92 and accompanying text.
150. See supranotes 114, 120-21 & 126-28 and accompanying text. See also Massey & Sloggett,
supra note 4, at 379. The Ogallala states on the whole have taken similar approaches to promote
conservation of groundwater and prevent its waste. The most common methods of regulation
(1) Permits issued by a governmental agency giving permission to drill wells or use
) Well spacing requirements specifying distances among wells to prevent interference
(3) Quantity restrictions limiting the amount pumped from a well; and
(4) Controls preventing the waste of groundwater during use.
All these controls have not been adopted by each of the management agencies in the
Ogallala area. Some agencies have adopted only one, while others have adopted several of
the available controls.
Massey & Sloggett, supra note 4, at 396.
151. 62 N.M. 264, 308 P.2d 983 (1957).
152. Id. at 272, 308 P.2d at 988.
153. Id. at 274, 308 P.2d at 989.
Co. v. Smith-Southwest Industries,5"4 a defendant groundwater user
withdrew such vast quantities of underground water that it caused the
plaintiff's land to subside."' 5 The plaintiff was allowed to collect
damages from the defendant on the grounds of negligence.15 6 The Texas
Supreme Court concluded that "if [a] landowner's manner of
withdrawing ground water from his land is negligent, willfully wasteful, or for the
purpose of malicious injury, and such conduct is a proximate cause of the
subsidence of the land of others, he will be liable for the consequences of
his conduct." ' 7 If groundwater users, such as farmers and oil
companies, know that they will be liable for damages or heavily fined, they will
in most cases be deterred from carrying on wasteful practices. Monetary
punishment must be great enough, however, to make the cost of
committing waste outweigh its benefits.
The Oklahoma Law currently provides for prosecution of
groundwater users who engage in waste. 5 8 The statute does not need to include
separate sections: one requiring groundwater permit applicants to prove
that their proposed use will not be waste and the other providing for
prosecution of users engaging in waste. If sanctions were made more
stringent, the prosecution section alone could suffice in guarding against
wasteful practices in using groundwater. Presently, the prosecution
section calls for permit revocation upon discovery of waste. 159 A provision
should also be included for fines.
Another possible route that Oklahoma lawmakers could take would
be to follow the approach of Colorado," 6 Kansas, 161 and New Mexico1 62
which forbids issuing a groundwater permit to an applicant who
proposes a use which would harm an already existing use from the same
source. The Oklahoma Law currently contains a section that protects
groundwater users who had rights to use groundwater prior to the
enactment of the statute. 163 However, the test for a groundwater permit does
not require groundwater permit applicants to prove that a proposed use
154. 576 S.W.2d 21 (Tex. 1978).
155. Ia at 21-22.
156. Id at 30.
158. OKLA.STAT. tit. 82, § 1020.15 (1981). See supra note 58 and accompanying text.
160. See Fundingsland v. Colorado Ground Water Comm'n, 171 Colo.487, 488, 468 P.2d 835,
836 (1970). Law requires denial of a permit when "the proposed appropriation will unreasonably
impair existing water rights from the same source." Id.
161. See supra note 114 and accompanying text.
162. See supra note 128 and accompanying text.
163. OKLA. STAT. tit. 82, § 1020.14 (1981).
will not impair an already existing right to use groundwater from the
same source. If the Oklahoma statute included such a section, it would
help settle disputes as to which users will be given permits as the
groundwater supply diminishes. Under this approach, an applicant for a permit,
such as an oil company, would have to prove that the use of fresh
groundwater in secondary oil recovery operations would be a beneficial
use and that it would not harm an already existing use from the same
source (i.e., a farmer who uses fresh groundwater for irrigation).
Despite the Oklahoma Law's inclusion of a waste section which has
an example list of wasteful uses, it is inadequate for resolving issues such
as whether use of fresh groundwater in secondary oil recovery operations
is waste. 1 The inadequacy arises because the Oklahoma Law's
definition includes a section providing that "[taking or using fresh
groundwater in any matter so that the water is lost for beneficial use" is waste of
groundwater.16 5 For example, when groundwater is used for agricultural
irrigation, the water mixes with chemicals from fertilizers, rendering it
unfit for further use.16 6 In addition, when groundwater is injected into a
mineral formation for waterflooding operations, it is again permanently
lost, thus preventing further beneficial uses. Therefore, it is difficult to
imagine very many uses of groundwater that do not cause it to be lost for
further beneficial uses. To remedy this problem, the Oklahoma Law
should be more specific as to what is meant by "lost for beneficial use"
and what is meant by "waste." Clarification would guide the Board and
the courts in enforcing the statutory provisions prohibiting waste.
The Oklahoma Law should also prioritize groundwater uses so that
a certain amount is safely set aside for drinking water and domestic use.
The groundwater should then be apportioned among all other uses such
as irrigation and secondary oil recovery operations. The Oklahoma Law
does not require permits for domestic use, but this alone does not
guarantee that a certain amount of water will be set aside for such use.1 67
The controversy over the use of fresh groundwater in secondary oil
164. Id. § 1020.15.
165. Id. § 1020.15(3).
166. See supra p. 681.
167. OKLA. STAT. tit. 82, § 1020.3 (1981). This section provides that "[a]ny landowner has a
right to take groundwater from land owned by him for domestic use without a permit. Wells for
domestic use shall not be subjected to well spacing orders, but are subject to sanctions against
waste." See also Hodges v. Oklahoma Water Resources Bd., 48 OKLA. B.J. 31 (1976) (discussion as
to whether Oklahoma legislature intended by not requiring permits for domestic use that such use be
recovery operations could be reduced if Oklahoma lawmakers would
follow the Texas Code's approach which includes a provision expressly
classifying such use as beneficial. 68 Oklahoma lawmakers should make a
decision as to whether groundwater use in secondary recovery operations
is beneficial or waste. The best approach is to conclude that use of
groundwater in secondary oil operations is beneficial and not waste
because to conclude otherwise will cause Oklahoma to lose economic
benefits by failing to recover the maximum amount of petroleum.1 69
Furthermore, simply because Oklahoma ceases to use groundwater in
secondary recovery operations does not mean that other Ogallala oil
producing states will. Even if Oklahoma stops using groundwater for oil
recovery operations, use of the Ogallala's supply by other states could
still cause the limited resource to become depleted. Therefore,
Oklahoma. should try to reap maximum economic benefits from
groundwater while at the same time seeking to protect its dwindling supply.
Oklahoma should also engage in extensive research to find ways of
replenishing the Ogallala's resources.
As groundwater becomes increasingly scarce, competition will grow
between various users, including oil companies and farmers. Currently,
Oklahoma groundwater applicants must prove that their proposed use of
the water is beneficial and not waste in order to obtain a permit. The
Oklahoma Law does not expressly say whether use of groundwater in
secondary oil recovery operations is beneficial or even whether it is
A better approach would be a two-pronged test requiring users to
prove that the proposed use is beneficial and that it would not impair an
already existing water use from the same source. Proof that waste will
not occur should not be a prerequisite for obtaining a permit.
Nevertheless, the Oklahoma Law should retain its provisions requiring
prosecution of users who commit waste, provided that such provisions impose
more stringent sanctions against wasteful practices.
The Oklahoma Legislature should prioritize water rights so that a
certain amount is set aside for drinking water and domestic use. The
168. See supra note 140-43 and accompanying text.
169. See Sun Oil Co. v. Whitaker, 483 S.W.2d 808 (rex. 1972) (Daniel, J., dissenting), where it is
pointed out that groundwater "is particularly important in a State whose most productive resources
are oil and agriculture, both of which depend heavily upon declining sources of water." Id. at 817.
OKLAHOMA GROUNDWATER LAW
remaining quantities should then be allocated among such uses as
irrigation and oil recovery operations. Lastly, the Oklahoma Law should
expressly classify use of groundwater in secondary oil recovery operations
as beneficial, because to do otherwise would deprive Oklahoma's
economy of the benefits reaped from maximum oil recovery.
7. OKLA. STAT. tit. 82 , § 1020 .15 ( 1981 ).
8. OKLA. STAT. tit. 82 , § 1001 .19 ( 1971 ).
9. Oklahoma Water Resources Bd. v. Texas County Irrigation &Water Resources Ass'n, 711 P.2d 38 , 41 (Okla. 1984 ). The Oklahoma Supreme Court described the 1949 Act in the following manner: "The 1949 Act defined 'critical ground water area' as any ground water basin or subdivision thereof 'not having sufficient ground water to provide a reasonably safe supply for domestic, 79 . Oklahoma Water Resources Rd. v. Texas County Irrigation & Water Resources Ass'n, 711 P.2d 38 , 40 (Okla. 1984 ).
97. Id . at 47.
98. See supra note 33 and accompanying text .
99. Massey & Sloggett, supra note 4, at 380. (map of the Ogallala) .
100. COLO. REV. STAT. §§ 37 - 90 -101 to - 141 ( 1973 ).
101. Id . § 37 - 90 - 107 ( 1973 ). See generally Jackson v . Colorado , 294 F. Supp . 1065 ( D. Colo . 1968 ); North Kiowa-Bijou Management Dist . v. Ground Water Comm'n, 180 Clo . 313 , 505 P.2d 377 ( 1973 ).
102. CoLO. REv. STAT. § 37-90-107 ( 1 ) ( 1978 ).
103. Id . § 37 - 90 - 107 ( 5 ). See also Fundingsland v. Colorado Ground Water Comm'n, 171 Colo . 487 , 468 P.2d 835 ( 1970 ).
104. COLO. REv. STAT. § 37-90-103 ( 20 ) ( 1973 ).
105. Id . § 37 - 90 - 138 . The Colorado Act provides that: (1) The state engineer in cooperation with the commission has power to regulate the drilling and construction of all wells in the state of Colorado to the extent necessary to prevent the waste of water ....
(2) If the state engineer finds any well to have been drilled or maintained in a manner or condition contrary to any of the provisions of this article ... he shall immediately notify
124. Id . New Mexico's groundwater reserves have been estimated by the U.S. Geological Survey to be at 20 billion acre-feet . Id
125. N. M. STAT . ANN. §§ 72 - 12 -1 to - 28 ( 1978 ).
126. Id . § 72 - 12 -2. See generally State ex rel . Erickson v. McLean , 62 N.M. 264 , 308 P.2d 983 ( 1957 ).
127. See generallyState ex rel, Erickson v . McLean , 62 N.M. 264 , 308 P.2d 983 ( 1957 ).
128. N. M. STAT . ANN. § 72 - 12 -3(E) ( 1978 ). See also Stokes v . Morgan, 101 N.M. 195 , 680 P.2d 335 ( 1984 ) (change in water quality results in strong inference of impairment); City of Roswell v . Berry , 80 N.M. 110 , 452 P.2d 179 ( 1969 ) (in reviewing applications, state engineer has duty to determine impairment of existing rights); McBee v . Reynolds , 74 N.M. 783 , 399 P.2d 110 ( 1965 ) (applicants bear the burden of proving the availability of unappropriated water and that granting their application will not result in impairment of existing rights); Templeton v. Pecos Valley Artesian Conservancy Dist ., 65 N.M. 59 , 332 P.2d 465 ( 1958 ) (only permits for unappropriated waters can be granted).
129. 62 N.M. 264 , 308 P.2d 983 ( 1957 ).
130. Id at 265 , 308 P.2d at 984.
131. Id . at 267 , 308 P.2d at 985.
132. Id at 269 , 308 P.2d at 987. The court stated that: The law contemplates an economical use of artesian water. It will not countenance the diversion of a volume from an artesian well which, by reason of waste resulting from permitting it to run uncontrolled for twenty four hours a day over grazing lands without an irrigation system, or through pipes to water troughs fitted with float feeds or other means of control to prevent waste therefrom, is many times that which is actually consumed for a