ANTLERS — A Pushmataha County judge heard arguments Wednesday in a lawsuit seeking to halt a state permit that would allow Oklahoma City to pull billions of gallons of water each year from Kiamichi River and Sardis Lake.

A group of seven Pushmataha County landowners filed a lawsuit against Oklahoma Water Resources Board in 2017 after the board issued a permit allowing Oklahoma City to withdraw 115,000 acre-feet, or around 37.5 billion gallons, of water annually from Sardis Lake and Kiamichi River. The suit requests the court vacate OWRB’s decision to issue the permit or require the board to reconsider the application.

Both sides have 45 days to submit findings of fact and conclusions of law to the judge before he makes a decision in the case.

Kevin Kemper, attorney for the landowners near the Kiamichi River, argued OWRB relied on faulty science when it approved a permit in late 2017 that would allow Oklahoma City to withdraw 37.5 billion gallons of water each year from the river and Sardis Lake, which feeds into the river.

“I’m here to say on the record it’s a sin to kill a river,” Kemper said. “And the damnation that’s going to come isn’t going to fall upon them unless they have to answer to God for it. It’s going to fall on the people of southeastern Oklahoma.”

Meanwhile, attorneys for OWRB and Oklahoma City argued the board followed all required laws for the permit to be granted, that the petitioners failed to provide evidence of their claims to OWRB before it held a hearing on the matter and that the plan would be a “win-win” for both Oklahoma City and southeast Oklahoma.

“The petitioners want the court and the people of southeast Oklahoma to think that the city’s permit and Sardis operations are a loss for southeast Oklahoma, but they’re mistaken,” said attorney for Oklahoma City Brian Nazarenus. “The permit and the settlement agreement and the operation under it are a win-win. They’re a win for the city and a win for southeast Oklahoma and the Kiamichi Basin.”

The issue of Oklahoma City’s attempts to tap water held in Sardis Lake, near Clayton, has been a matter of controversy in southeastern Oklahoma for years. The reservoir was constructed in the mid-1970s for municipal and industrial water use under an agreement between the state and Army Corps of Engineers.

When the state repeatedly failed to repay the Corps for construction of the reservoir, Oklahoma City applied in 2007 to OWRB to use water from the Sardis reservoir, and in 2010, OWRB approved a $42 million agreement with Oklahoma City that gave the city access to 90 percent of the water in the lake in exchange for the city paying off the state’s debt.

The deal was protested by residents, businesses and American Indian tribes in the Sardis Lake area, who said the city would drain the lake and devastate tourism in the area. In 2011, Choctaw Nation and Chickasaw Nation filed a lawsuit against the city, the city’s water utility trust, OWRB and then-Gov. Mary Fallin. That suit was settled in 2016, and in 2018 the OWRB approved the city’s application.

The city’s plan states that water will be released from the dam at Sardis Lake into Jackfork Creek, which flows into Kiamichi River. About 39 miles downstream, near Moyers Crossing, the city will build a pumping station on Kiamichi River to collect the water and pipe it to Oklahoma City.

A separate lawsuit was filed earlier this year in federal court in Muskogee on behalf of Pushmataha County residents and Kiamichi River Legacy Alliance against state and federal officials stating the plan to divert water would destroy the habitat of three endangered species of freshwater mussels found in the river.

During Wednesday’s oral arguments Kemper said that allowing the plan to go forward would “dry up” southeastern Oklahoma and Pushmataha County, and that Oklahoma City plans to sell the water to other municipalities.

“Water is the primary resource in Pushmataha County,” Kemper said. “We weren’t blessed with oil and gas like Osage County, we weren’t blessed with the wind capacity you might have in Custer County. All we have is the water, and there is no ad valorem tax upon the water. So when they take 32.6 billion gallons and turn around and sell it, not a single penny of that is going to come and benefit the schools, benefit this courthouse, benefit the county, benefit the city of Antlers. Not in any way.”

However, Nazarenus said that the plan would allow water from Sardis Lake to be released into the river, which has run dry in the past in times of drought, during dry years and while the city is drawing water, since the city would be required to allow a bypass of around 32 million gallons of water per-day from the planned diversion point of Moyers Crossing on the river between Clayton and Antlers.

“Where the real benefit to the basin comes in is during the dry years. There are years when the Kiamichi dries up or comes close to it,” Nazarenus said. “In those years, when the city is taking water, it will be taking water from its Sardis storage, from it’s savings account, but it must also meet the 50 cfs (cubic feet per-second) bypass. That 50 cfs bypass is going to be made from the city’s storage. So there’s going to be 50 cfs of water flowing past Moyers Crossing and down the river that never was there during a dry period.”

During wet years, Nazarenus said, most of the water being piped to Oklahoma City would be from Kiamichi River, with Sardis water held in reserve. During moderately dry years, it would be a combination of the two, and during dry years the water would mostly come from the lake, he said.

However, Kemper stated that the 50 cfs bypass is only required when the city is pumping water from the river, and there is no guarantee that Army Corps of Engineers will cooperate with the city on releasing water from Sardis.

Kemper also argued the hydrological model used by the city to get the permit from OWRB used data from between the 1920s and 1970s, prior to the construction of Sardis Lake, while Nazarenus and OWRB attorney Sara Gibson argued the data was used to determine the natural flow of and into the river and the impact of human development on it.

In his brief, Kemper argued the agreement reached by the tribes and the state over water in the Kiamichi Basin was the basis for undue influence put on OWRB to approve the city’s application.

“It is not lost upon my clients, nor is it lost on the people of Pushmataha County, the ever-present ongoing feeling that Oklahoma City and Tulsa can do whatever it wants at the expense of rural Oklahoma and we get nothing for it,” Kemper said.

Gibson stated that the OWRB followed its statutory requirements and is not required to consider environmental flows — water left in a stream to sustain freshwater ecosystems — in its decisions unless the stream has been designated a “scenic river” by the Legislature.

“Environmental flows are not one of the statutory elements to be determined by the board unless the proposed diversion is from a scenic river,” Gibson said. “The Legislature has not designated the Kiamichi River as a scenic river.”

Kemper also asked that the judge sit by the river while considering the case, because “I think the river will have something to say.”

“How sad it would be to bring our grandchildren, or for them to bring their grandchildren,” Kemper said, “and instead of saying what a beautiful river we have for beneficial use, to say ‘well, there once was a river here and we called it the Kiamichi.”

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