IRRIGATION WATER PERMIT

The Water Resources Board has the authority to grant temporary permits for irrigation water in amounts less than two-acre feet per surface acre of land owned or leased by the applicant when to grant such amount would not be of beneficial use or would constitute waste. The Attorney General has received your request for an opinion wherein you, in effect, ask the following question: May the Water Resources Board grant a temporary permit for irrigation water in an amount less than two (2) acre-feet annually for each acre of land owned or leased by the applicant? Title 82 Ohio St. 1020.11 [82-1020.11](b) (1974) relates to temporary permits and contains the following language: "Unless requested by a majority of the owners of the land, the water allocated by a temporary permit shall not be less than two (2) acre-feet annually for each acre of land owned or leased by the applicant in the basin or subbasin;. . ." It should be emphasized, however, that this Section must be interpreted in light of certain other sections of the Oklahoma Water Law. Section 82 Ohio St. 1020.2 [82-1020.2] of the Oklahoma Ground Water Law sets forth a declaration of policy as follows: "It is hereby declared to be the public policy of this state, in the interest of the agricultural stability, domestic, municipal, industrial and other beneficial uses, general economy, health and welfare of the state and its citizens, to utilize the ground water resources of the state, and for that purpose to provide reasonable regulations for the allocation for reasonable use based on hydrologic surveys of fresh ground water basins or subbasins to determine a restriction on the production, based upon the acres overlying the ground water basin or subbasin." Section 82 Ohio St. 1020.9 [82-1020.9], relating to when the Water Resources Board should approve an application for a permit, contains the following language: ". . . (W)hether 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." It may therefore be seen that any permit issued by the Board pursuant to 1020.11 must be preceded by a finding of the Board that the water would be placed to beneficial use, and the use to which it is to be placed does not constitute waste. It should be noted that this overall approach regarding beneficial use is found throughout Oklahoma water law. See 82 Ohio St. 105.2 [82-105.2] (1974), which reads in part: "Beneficial use shall be the basis, the measure and the limit of the right to the use of water'. . ." In the waste contest, attention should also be directed to Section 82 Ohio St. 1020.15 [82-1020.15] of the Oklahoma Ground Water Law, especially the second through the sixth categories set forth thereunder. Any one of these sections might well be applicable to the situation where an applicant owned or leased considerably more land than would be appropriate for irrigation were the permit to be granted on the basis of the totality of such ownership rather than on the basis of the acreage to be irrigated. In expressing this concern that all the waters of the State of Oklahoma be put to beneficial use and that none of such waters be wasted, it cannot be presumed that the Legislature intended by virtue of the wording of 82 Ohio St. 1020.11 [82-1020.11] to require the Board to grant a permit for excessive use of water. Such an interpretation would allow these basic tenets to be violated, which position cannot be countenanced. In any event, it would be unreasonable to interpret Section 82 Ohio St. 1020.11 [82-1020.11](b) as requiring the Water Resources Board to grant a temporary permit for more water than the applicant has requested or indicated a use for. Any water rights granted over and above such amount would obviously not be for a beneficial use and thus subject to possible waste. It is, therefore, the opinion of the Attorney General that your question be answered in the affirmative. The Water Resources Board has the authority to grant temporary permits for irrigation water in amounts less than two-acre feet per surface acre of land owned or leased by the applicant when to grant such amount would not be of beneficial use or would constitute waste. (James R. Barnett)