Drip GRIP:
Mining Company Wants to Restrict Tishomingo's Water
By:  Sarah Terry-Cobo  The Journal Record July 16, 2018  0

The dam at Pennington Creek in Tishomingo. (Joshua Small/Johnston County Sentinel)

TISHOMINGO – A conflict over water rights in southeastern Oklahoma is bubbling up again. A mining company is seeking to restrict Tishomingo’s water rights from Pennington Creek, the city’s sole source of raw water. Arbuckle Aggregates’ attorney cited the state’s use-it-or-lose-it provision of surface water rights in its request to the Oklahoma Water Resources Board,  according to a letter the company sent  to the agency.

It’s common for water permit holders to correct or amend their water use reports, said Kent Wilkins, Planning and Management Division chief for the agency. It’s not common for one water permit user to request that another’s permitted volume be reduced, he said.

Tishomingo contract attorney Krystina Phillips said Arbuckle Aggregate’s attorney is also trying to prevent the city from weighing in on the issue, denying the municipality its due process rights. Arbuckle Aggregate attorney Elizabeth Nichols wrote in her request to the state’s water permit agency that Tishomingo failed to report water use in several years and the water should revert to public use. That would make it available for another entity to apply for a permit to use that water.

Nichols sent the letter on July 9 to the OWRB, asking the agency to reduce Tishomingo’s permit from 497 acre-feet per year down to 480 acre-feet per year. That would be a reduction of about 5.5 million gallons per year, cutting permitted water withdrawals to 156.4 million from 161.9 million gallons. The city failed to report water use in 2011, 2012, 2015 and in 2017, according to her letter. Wilkins said the requested reduction is fairly minor.

Phillips, a partner at Indian and Environmental Law Group PLLC, said Nichols’ request to diminish the city’s water rights isn’t supported by facts. Though Nichols didn’t name Arbuckle Aggregates in her request to lower Tishomingo’s permit, Nichols represents the company in a lawsuit it brought against the city related to an ordinance protecting the city’s water source. Phillips said there has been turnover within the city’s staff, and there previously wasn’t an established process on how to submit the reports to the OWRB.

“The bottom line is that the city is using its full allocation of the water it is permitted to use,” Phillips said. “So when you look at the facts as a whole, she is using a clerical error to deprive the city of a substantive right to water.”
Nichols’ letter notes that notice isn’t required for loss of water rights for water that’s not put to beneficial use.

Wilkins said the city contacted his agency a couple of weeks ago, asking for its history of water use reporting and noting that it needed to amend some water use reports for one of its three permits. The agency returned the requested information to Tishomingo last week and on Thursday received its amended water use reports.

However, entities do have a right to a hearing if the agency considers canceling or reducing water use permit amounts if the permit holder doesn’t accept proposed changes, Wilkins said.

Tishomingo established an ordinance in 2015 declaring a nuisance if an entity uses more than its share and in 2017 established a framework to enforce the ordinance, Phillips said. The second ordinance was geared toward establishing due process, with explicit notice requirements. Arbuckle Aggregates and Vulcan Construction Materials sued the city. The trial is scheduled to begin in September.

Phillips said the city has looked for another long-term water supply source, but Pennington Creek, fed by a spring from the Arbuckle Simpson Aquifer, was the only viable source.

“That makes it all the more critical to protect Pennington Creek,” she said.
Nichols was unreachable by publication time.
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