Thursday, March 1, 2012

Water Rights & A Seat at the Table

Next week, the Oklahoma Law Review will host a symposium on water law.  The topic is timely because Oklahoma is reaching the conclusion of a multi-year, stakeholder-driven water planning process.  The process includes both technical evaluations and an elaborate public engagement component.  The latter is worth a closer look for its lessons in collective environmental decisionmaking.

A few features of Oklahoma are notable for their importance to stakeholder engagement processes—I highlight them here because I suspect at least some of these features are shared by a number of states.  First, Oklahoma is a state where trust in the government is moderate to low and there tends to be a strong culture of individualism.  Second, water issues are both legally complex and contentious.  The water-rights system is a blend of riparianism and prior appropriation (yes, this produces bizarre results); there are numerous tribal claims to water; Texas is growing rapidly and getting thirsty; and the list goes on.

Mindful of these features, the Oklahoma Water Resources Research Institute (OWRRI) developed a process meant to engage any interested party from the outset.  It began with 42 listening sessions held across the state.  Next, 340 appointees participated in regional input meetings; these meetings were intended to identify the full range of Oklahoma’s water issues.  Based on an analysis of the issues developed at those meetings, OWRRI identified 10 themes for planning workshops, each of which involved 20 participants.  Resulting recommendations were the focus of a town hall meeting at which policy recommendations were drafted.  From there, OWRRI conducted a number of feedback meetings to allow public input.  Ultimately, the result is a plan developed by the Oklahoma Water Resources Board, which is currently under consideration by the state legislature.

There is no doubt that the process included many and varied ways for the public to raise concerns about water policy in the state.  Furthermore, updates from the OWRRI are easy to obtain, its website contains a wealth of information, and the staff are particularly patient and approachable.  In many ways, the process is a model for deliberative decisionmaking… except…

It didn’t include a meaningful way for Native American tribes to work with the state on a sovereign-to-sovereign basis.  To be fair, the relevant state agencies don’t have authority to negotiate with the tribes in that manner.  But while tribal leaders and state officials seem to agree that water-rights issues are best resolved through negotiation, litigation and heated exchanges appear to be on the rise.  Which might belie the importance of accommodating many voices in the first instance.

--Emily Meazell

http://lawprofessors.typepad.com/environmental_law/2012/03/water-rights-a-seat-at-the-table.html

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Comments

What do you believe is the most significant change coming out of this process?

Posted by: Larry Mugler | Mar 4, 2012 2:51:12 PM

Hey Emily-- fascinating issue, and it sounds like it will be a really great symposium. You may have seen the big water rights case that came down last week from your neighbors at the Texas Supreme Court. Susan Kraham did a very good post on it for us here: http://lawprofessors.typepad.com/land_use/2012/03/the-texas-supreme-court-and-owned-in-place.html

All the best,
Matt Festa

Posted by: Matt Festa | Mar 2, 2012 10:25:19 PM

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