Tribal sovereignty at forefront; Water settlement secures tribes’ historic standing

This article appeared in the September 2016 edition of the Chickasaw Times

The Chickasaw and Choctaw Nations recently announced that they have reached a water rights settlement with the State of Oklahoma and the City of Oklahoma City. The settlement has been approved by both tribal legislatures, the State of Oklahoma, and Oklahoma City, and will now be presented to Congress for final approval. When finalized, the settlement will be established and enforceable as federal law.

Growing from long-standing conflicts over Sardis Lake and the Kiamichi watershed, the agreement resolves broad questions of water rights ownership and regulatory authority over the waters of the Chickasaw and Choctaw Nations’ entire treaty territory, an area that includes all or parts of 22 counties in south-central and southeastern Oklahoma.

In 2011, the nations filed a federal lawsuit to block efforts to export water from Sardis Lake to Oklahoma City in exclusive reliance on state law and to protect the federal law rights interests the Chickasaw and Choctaw Nations have with respect to the sustainability of their treaty homelands, specifically including the waters on which such sustainability depends.

“While we have been sovereign since time immemorial, sovereignty is something we should never take for granted,” said Gov. Anoatubby. “As tribal leaders we have a duty to engage in this process and exercise our rights as sovereign nations to protect the interests of our people.”

The settlement will resolve the lawsuit filed by the Chickasaw and Choctaw Nations as well as a countersuit the State filed in state court to seek an adjudication of tribal and non-tribal water rights in the Kiamichi, the Muddy Boggy, and the Clear Boggy watersheds.

By reaching this settlement, the parties avoid decades of litigation and associated expenses and establish, instead, greater certainty regarding management and use of water resources in the nations’ historic treaty area—something that benefits all communities in the region.

“This agreement is a win for all Oklahomans, because it is based on the common interests of the people we serve as leaders of our respective governments,” said Gov. Anoatubby. “At the outset of this process, it is probably safe to say each of us were focused on the needs of our own constituents.

“As we worked through this process it became increasingly apparent that we would need to look at a much bigger picture. We all came to an understanding that the people we serve have common interests and we have a responsibility to manage our shared water resources in a manner that will meet the needs of all Chickasaws, Choctaws, and Oklahomans.”

Terms of the settlement ensure the Chickasaw and Choctaw Nations will have a role in significant management decisions relating to the water resources of the nations’ historic treaty area, including participation in standardized technical evaluations of major water right allocation proposals affecting the Settlement Area. Those evaluations include specific provisions to enhance protections for current and future water needs of communities throughout the region, enhancing stewardship of water resources both for future consumptive use within the region as well as protecting lake levels and stream flows on which the vibrant tourism industry relies.

“Under this agreement, the state will continue to manage and protect water resources throughout the state,” said Gov. Anoatubby. “However, as we move into the future, the Chickasaw and Choctaw Nations will have a meaningful and active voice in the management of water resources in our area, which has been one of our primary goals since we first began discussing this issue with the state.”

The settlement includes specific and robust protections for Sardis Lake and the Kiamichi Basin, limiting Oklahoma City’s withdrawal of water based on the City’s management of its other lakes, implementation of appropriate conservation measures, and the recreation, fishing and wildlife needs that are critical to the economy in the treaty area. It also preserves the hard work done by the Chickasaw Nation, the Oklahoma Water Resources Board, federal agencies, and local communities and concerned citizens relating to protection and stewardship of the waters of the Arbuckle Simpson. Each of these provisions mark significant enhancements of our systems to protect the reliability of our water sources.

“Through this settlement process, we were able to find a way to preserve and protect the water resources essential to economic growth and quality of life in south-central and southeastern Oklahoma, while still providing water needed to meet the needs of the people of Oklahoma City,” said Gov. Anoatubby. “It is a credit to Governor Mary Fallin, Attorney General Scott Pruitt, Mayor Mick Cornett and their teams that we were all able to work together to find ways to resolve our differences.”

Choctaw Nation Chief Gary Batton added, “What happens in regards to the protection and preservation of water is of great importance. When finalized, this agreement secures existing uses of water and provides certainty with regard to the future use of Sardis Lake for the benefit of recreation, fish and wildlife, and local water use.

“Importantly, moving forward, both the Choctaw and Chickasaw Nations will have a seat at the table in the protection of southeastern Oklahoma water resources for municipal and recreational use. And, as we all know, a vibrant recreation and tourism industry creates jobs and strengthens economies inside and outside of the Settlement Area. Additionally, we are pleased that the agreement supports keeping water in the Settlement Area within the State by maintaining current state law prohibitions and adding significant protections.”

The agreement also establishes the legal security of Oklahoma City’s water supplies and gives the greater Oklahoma City metropolitan area access to water for its future needs. Oklahoma City’s releases from Sardis Lake will be governed by a system of lake level release restrictions based on the Oklahoma Department of Wildlife Conservation’s lake level management plan, which is designed to protect fishing and recreational resources. Oklahoma City will also gain access to the Kiamichi River dependent upon lake level release and minimum stream flow restrictions intended to protect the environment and recreational uses.

Existing water rights or rights to surface or groundwater will not be affected by the agreement, a principle embraced early on by all parties to the negotiations, and the agreement does not authorize out-of-state water use, which use will remain unlawful absent specific State legislative action on a proposal. Instead, the settlement establishes a state-tribal commission to evaluate the economic and environmental impacts of any future proposal to use water from the Settlement Area across state lines. Additionally, if the Oklahoma Legislature legalized out-of-state use per such evaluation, a proposal would have to be subjected to the standardized technical evaluation and permitting process established for other major water management decisions, and any funds that may be derived through such transaction would be deposited into a central fund for purposes of supporting badly needed public water infrastructure projects, with a significant prioritization for projects within or benefitting the nations’ historic treaty area.

In response to the announcement of an agreement, The Honorable Judge Lee R. West, with the United States District Court for the Western District of Oklahoma, commented, “I have been on the bench for 51 years, but this is an especially proud moment to witness all of these diverse parties coming together to find solutions that are in the best interest of all Oklahomans and my home state. This is without doubt an historic achievement.”

Given the federal trust responsibilities and the federal law nature of the nations’ water rights, finalization of the settlement will require federal legislation that approves the agreement and directs the Secretary of the United States Department of the Interior to sign on behalf of the United States. The parties are now working with the Oklahoma congressional delegation to secure appropriate legislation.

Additional information can be found online at www.WaterUnityOK.com.

‘Engagement, collaboration and cooperation’

Certain provisions of the Settlement Agreement are designed to ensure sustainability of adequate water resources to meet the needs of Chickasaws, Choctaws and communities in the two nations far into the future. Some of those provisions are outlined below. It is important to note these provisions also benefit the State of Oklahoma and Oklahoma City.

Governor Anoatubby said the agreement was a win for the entire state.

“This agreement provides a foundation for a deeper relationship based on engagement, collaboration and cooperation,” Gov. Anoatubby said. “Under the terms of this agreement, we will be able to work together in a spirit of unity and cooperation to manage our vital water resources in a manner that that will help ensure a strong economy and a thriving natural environment for our children and grandchildren.”  

The agreement:

• Limits the total amount of water Oklahoma City may withdraw from Sardis Lake each year
• Prevents Oklahoma City withdrawals from Sardis Lake if the water level is below set minimums based on the OK Dept. of Wildlife lake level management plan
• Sets aside a guaranteed minimum of 20,000 acre-feet per year from Sardis Lake to be used in the 10-county area surrounding the lake
• Ensures Oklahoma City withdrawals from the Kiamichi River will not reduce stream flows below minimums established in the agreement to protect recreational and environmental needs in the area
• Requires Oklahoma City to enforce its own conservation measures before withdrawing water from Sardis Lake or Kiamichi River
• Establishes a $10 million fund to enhance recreational use, fish and wildlife habitat and environmental protections at Sardis and Atoka Lake.