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Show OKLAHOMA 615 owners are entitled to an equitable apportionment of ground water in times of scarcity.79 C. PRESENT LAW It was in 1949 that an appropriation system for ground water was established, and there were substantial amendments in 1961, 1965, and 1967. Professor Earick reports that within the last year or so several proposals have been made to the State legislature to repeal the present ground water code and to substitute a system of appor- tionment among surface owners as well as the right to make sub- stantial withdrawals which might over a period of 20 years exhaust the supply in an aquifer.80 The 1972 session of the legislature did repeal the present act, with the repeal to take effect in 1973 when a new act becomes operative, but it seems the effect of the new act will be to protect ground water basin supplies rather than to mine them over fixed periods, as discussed in section 4.d below. For the present, it must be remembered that the ground water law now in effect is the 1967 revision, and that these statutes will con- tinue in effect until July 1, 1973. It therefore seems appropriate to discuss the 1967 revision before reviewing the new act which will take effect July 1, 1973. With that in mind, it should be noted that the present statutes81 distinguish between applications to appro- priate ground water where there has been no court adjudication of existing rights and applications where additional unappropriated ground water is sought to be appropriated after an adjudication. For either purpose, ground water since 1967 has been defined to mean "water under the surface of the earth regardless of the geologic struc- ture in which it is standing or moving." 82 Prior to this 1967 amend- ment, underground streams were expressly excluded from the defi- nition, making such water subject to appropriation by the public generally in the same manner as surface streams. After the change, all ground water sources became subject to appropriation only by overlying owners (or their lessees) of the "ground water basin" (de- fined as land overlying a distinct body of ground water).83 An application to appropriate water is not required of any land- owner who takes ground water in a nonwasteful manner for; (1) domestic uses, (2) household purposes, (3) watering livestock, or (4) the irrigation of land not exceeding a total of three acres in area for growing gardens, orchards, and lawns.84 The term "waste" is defined to include taking water in such a manner as to involve loss of water which could have been put to beneficial use; excessive transit losses; permitting water to be lost into cavernous or pervious stratum; pollution by minerals of sweet water strata or basins; appropriations in excess of the safe annual yield measured by the average annual recharge of the area; and the drilling of wells which substantially reduce water in wells of prior 79 Rarick IV at 408-16. See also C. Martz, The Law of Underground Waters, 11 Okla. L. Rev. 26 (1958). 80 Rarick IV at 426. 81 Sees. 1001 to 1019. *« Sec. 1002. 83 Id. «* Sec. 1004. |
