Tribes important to water plan

OKLAHOMA CITY — Tribal water rights could further complicate a pending lawsuit against the state by Texas officials who want to buy water in southeastern Oklahoma, legal experts told a gathering of tribal officials and attorneys Wednesday.

The experts, speaking at the annual Sovereignty Symposium forum for legal issues that are common between state and tribal governments, also said tribal water rights must be addressed while state officials develop a new statewide water plan.

Without a comprehensive plan for the state's water resources, entities outside the state could try to grab Oklahoma's surplus water, said Stephen Greetham, an attorney who specializes in water and natural resources for the Chickasaw Nation.

"There's always going to be somebody else who wants to use water resources," Greetham said.

The Chickasaw Tribe is one of several Oklahoma-based tribes, including the Choctaw and Comanche tribes, who have an interest in water sought by a federal lawsuit filed in 2007 by the Tarrant Regional Water District, which serves 1.6 million people including residents of Fort Worth and Arlington in north-central Texas.

The water district is seeking 460,000 acre feet or 150 billion gallons annually.

The lawsuit names the Oklahoma Water Resources Board and the Oklahoma Water Conservation Storage Commission and challenges a statewide moratorium on out-of-state water sales that expires in November. It seeks a ruling on whether the state can treat an application to purchase water from Texas differently than one from anywhere else, Greetham said.

But even if Texas officials win their lawsuit, the court must still decide the extent of the tribes' rights to the water Texas is seeking and how those rights will be affected, he said.

"The interests are there," Greetham said.

"There's no question that tribes in Oklahoma have water rights," said Taiawagi Helton, a professor at the University of Oklahoma College of Law. "The rights are fairly strong on paper. The question is then how do we implement those rights?"

"There is an unresolved issue dealing with the waters of Oklahoma that flow through Indian Country," said Attorney General Drew Edmondson.

Edmondson cited a decision by the Cherokee Nation last month that authorized the state to represent its water interests in a lawsuit against Arkansas poultry companies over pollution of the Illinois River Watershed as one example of how tribal and state water interests intersect.

"I think we're doing some things that are on the right track," Edmondson said. He said the OWRB has aggressively sought tribal input while developing a 50-year plan for providing high-quality water to all areas of the state but formal procedures for recognizing tribal water rights have not been developed.

The 4.5-year, $13 million water planning process was launched in 2006. A draft water plan is scheduled to be ready by January 2011.

On Tuesday, Gov. Brad Henry signed into law legislation designed to protect Oklahoma water rights while consideration selling water to out-of-state interests.

The measure says that no out-of-state water permit shall impair the state from meeting its obligations under interstate compacts with other states. It also requires the OWRB to consider any water shortages or needs across the state when considering applications for water sales to out-of-state entities.

By TIM TALLEY