Okla. Admin. Code § 785:20-9-3

Current through Vol. 42, No. 4, November 1, 2024

Section 785:20-9-3 - Loss of rights and reversion of water to public

(a)Forfeiture and loss of rights.Nothing in 82 O.S. 1981, §§105.1 et seq. shall be deemed to reestablish any right to the use of any water which has been lost by failure to use same or by forfeiture prior to July 5, 1961. [82:105.16]

(b)Loss of right to use water under permit.

(1)To the extent that the amount of water authorized is not put to beneficial use as provided by the terms of the permitincluding but not limited to a schedule of use of incremental amounts within the corresponding time periods, the amount not so used shall be forfeited by the holder of the permit and such unused water shall again become public water and available for appropriation. [82:105.17]

(2) If a permit authorizes use of water for more than one purpose and water is not used for a purpose under the terms of the permit, the Board may delete such purpose from the permit upon notice and hearing as provided in this section.

(3) If the permittee fails to comply with any material term, limitation, condition or restriction provided in the permit, including but not limited to the requirements to file a Notice of Completion of Works on the date specified, the Board may revoke and cancel said permit upon notice and hearing as provided in this section.

(4) For a permit containing a schedule of use, the amount lost in any increment shall be subtracted from the total amount authorized by the permit and the amounts for any remaining increments shall be adjusted based on the percentages of the time intervals in the schedule of use.

(5) If the water right authorizes use of water from a reservoir, a reduction or cancellation of the right to use water shall not affect the storage rights in the reservoir, and any appropriation permit issued thereafter which authorizes use of water in such storage shall contain a condition that the permittee shall pay to the owner of the storage rights the proportionate amount of the costs of the storage attributable to the permit.

(c)Loss of right after commencing use.

(1)When any person entitled to the use of water commences using water but thereafter fails to beneficially use all or any part of the water claimed by him, for which a right of use has been vested for the purpose for which it was appropriated, for a period of seven (7) continuous years,the right of use of the unused amount of water for such purpose shall be lost and such unused water shall revert to the public and shall be regarded as unappropriated public water [82:105.17]; provided however, the application of this paragraph shall not conflict with use under a schedule of use or other terms of a water right. Periods of excused nonuse shall stop the running of the forfeiture period for the period of the excused nonuse and such period shall not be included in computing the forfeiture period.

(2) This subsection is applicable to vested rights and permits to use stream water.

(3) The following shall not be calculated as amounts used in determining whether a loss of right has occurred:

(A) use of water on lands not described in a water right,

(B) use of water for purposes other than that described in the water right,

(C) use of water in a manner that constitutes waste.

(4) If the water right authorizes use of water from a reservoir, a reduction or cancellation of the right to use water shall not affect the storage rights in the reservoir, and any appropriation permit issued thereafter which authorizes use of water in such storage shall contain a condition that the permittee shall pay to the owner of the storage rights the proportionate amount of the costs of the storage attributable to the permit.

(d)Notice of loss of right to use water.

(1)When Board may send notice.When the Board has reasonable cause to believe that the right to use water has been lost in whole or in part,... the Board may proceed to cancel administratively such water right by notifying the claimant, or his latest successor in such rights, by written notification mailed by registered or certified mail to his last known address that there is reasonable cause for believing that he has lost his water rights under the provisions of [82:105.18] 82 O.S. 1981, §§105.16 and 105.17.

(2)Contents of notice. Such notice shall contain:

(A) A statement of the time, place, and location of the hearing;

(B) A statement of the nature and of the legal authority and jurisdiction under which the hearing is to be held;

(C) A reference to the particular sections of the statutes and rules involved;

(D) A short and plain statement of matters asserted.

(3)Mailing notice; publication.The notice must be mailed at least thirty (30) days prior to the date set for a hearing...If there is evidence that delivery of such notice by registered or certified mail cannot be made to the claimant or his successor in such water rights, the Board shall give notice by publishing the same in a local newspaper qualified to publish such notice, nearest the point where said water right had attached, once each week for two (2) consecutive weeks. [82:105.18] A certified mailing which is returned to the Board and marked "refused" or "unclaimed" is not evidence that delivery cannot be made to the claimant or his successor.

(e)Hearing on loss of right.

(1) The hearing date shall be set not earlier than thirty (30) days after the notice by certified mail or the last publication date of the notice.

(2) At the hearing the claimant or his successor shall have the right to show cause why such water right should not be declared to have been lost through nonuse or non-compliance with water right terms, conditions, etc. Such cause may be shown by substantial competent evidence that the failure to beneficially use the water subject to forfeiture was caused by circumstances beyond the control of the claimant and the claimant was ready and willing to use the water. [82:105.18]

(3) In addition to any cause which may be provided by law, acceptable cause for nonuse includes but is not limited to the following:

(A) damage to claimant's field, pump, pipe or other equipment caused by flooding or other events after reasonable diligence to repair same;

(B) claimant's service on active duty in the armed forces;

(C) placement of land to which an irrigation water right is appurtenant into a federally sponsored conservation reserve or soil bank program;

(D) wrongful acts of others which prevented water usable for claimant's authorized purposes from reaching the claimant's point of diversion, and

(E) need for the water did not develop as anticipated when the water right was obtained or when a schedule of use was added or amended, and the water right holder acquired and has properly maintained significant infrastructure (such as lakes, storage rights in lakes, pipelines, pumps and other appurtenances) at a capacity necessary to put the amount of water subject to forfeiture to the use authorized.

(4) In any instances of reported nonuse, the claimant may be required to state the reasons for such nonuse and furnish to the Board sufficient verification and evidence of the reasons, underlying basis or cause for the nonuse.

(f)Notice of Board's determination on loss of right. The Board shall notify the claimant, or successor in such water right, of its determination in accordance with the Oklahoma Administrative Procedures Act.

(g)Failure of Board to determine loss of right.The failure of the Board to determine that a right to use water has been lost in whole or in part for nonuse shall not in any way revive or continue the said right. [82:105.18]

(h)Voluntary surrender of water rights.The Board may accept the voluntary surrender of any water right by the holder thereof. [82:105.19] Forms for surrender shall be furnished by the Board.

Okla. Admin. Code § 785:20-9-3

Amended at 10 Ok Reg 3281, eff 6-25-93; Amended at 11 Ok Reg 2917, eff 6-13-94; Amended at 12 Ok Reg 2671, eff 7-1-95; Amended at 13 Ok Reg 2853, eff 7-1-96; Amended at 15 Ok Reg 2435, eff 6-11-98; Amended at 22 Ok Reg 1596, eff 7-1-05