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Lawsuit to block OKC from siphoning water from Kiamichi River and Sardis Lake filed in federal district court

Heide Brandes / Red Dirt Report
Choctaw Chief Gary Batton, whose tribe took part in a 2016 settlement agreement over water use in this RDR file photo, is named as a defendant in a lawsuit filed in Muskogee's U.S. District Court for the Eastern District of Oklahoma.
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Said to be In Violation of Endangered Species Act

OKLAHOMA CITY  – A lawsuit was April 4, 2019 to prohibit the City of Oklahoma City from diverting almost 37.5 billion gallons of water from the Kiamichi River Basin in southeastern Oklahoma in violation of the federal Endangered Species Act.

                David Page, an environmental attorney from Tulsa, filed suit in Muskogee’s U.S. District Court for the Eastern District of Oklahoma.

                The defendants include Gov. Kevin Stitt; Julie Cunningham, executive director of the Oklahoma Water Resources Board (OWRB); Oklahoma City Mayor David Holt and Carl Edwards, chairman of the board of trustees of the Oklahoma City Water Utilities Trust; Bill Anoatubby, governor of the Chickasaw Nation, and Gary Batton, Chief of the Choctaw Nation of Oklahoma; plus the acting Secretary of the U.S. Department of the Interior, as Trustee of the Choctaw and Chickasaw Nations.

                The plaintiffs are:

                ● The Kiamichi River Legacy Alliance (KRLA), a non-profit corporation that “funds and/or otherwise supports … endangered freshwater species in order to preserve the natural ecology of the Kiamichi River”;

                ● Dr. Kenneth Roberts, a Tulsa University professor who is president of the KRLA and owns property, including a cabin, on the Kiamichi River;

                ● Daniel Roberts, also a member of the KRLA who owns property on the river, including a cabin;

                ● Dale Jackson, a Pushmataha County resident and KRLA member whose residence and land border the river. He has “an economic interest in clean water flowing in, and the natural ecology of, the Kiamichi River with respect to his ranching and hunting and fishing guide businesses.”

                ● Justin Jackson, a Pushmataha County resident who is vice president of the KRLA. He, too, has “ranching, and hunting and fishing guide businesses” associated with the river.

                ● Krey Long, Johnny Robbins, and Weldon Robbins, all of whom are Pushmataha County residents and KRLA members “whose land and residence border the Kiamichi River”;

                ● William Redman, the KRLA secretary and a beneficiary of the Louise V. Redman Revocable Trust, which owns land that borders the Kiamichi River;

                ● Myrl Redman, the trustee and beneficiary of the Louise A. Redman Revocable Trust. The trust has land that borders the river, and beneficiaries of the trust “use and enjoy the Kiamichi River, the surrounding land and its associated waterways for aesthetic, educational, cultural and recreational purposes.”

2016 Settlement Agreement Cleared the Way For OWRB to Approve OKC Stream Water Permit

                The defendants jointly signed a settlement agreement in August 2016 that “resolve[d] disputes relating to Sardis Lake and the Chickasaw Nation’s and Choctaw Nation of Oklahoma’s claims to water and to water rights…” https://www.waterunityok.com/media/1075/agreement-160808.pdf

                One year later Administrative Law Judge (ALJ) Lyn Martin-Diehl conducted a hearing at OWRB headquarters in OKC on Oklahoma City’s application for a stream water permit to siphon up to 115,000 acre-feet of water annually from the Kiamichi River and Sardis Lake, an impoundment of a tributary of the river. One acre-foot is equivalent to 325,851 gallons of water, enough to inundate one acre of land to a depth of one foot.

                On 10 October 2017 the OWRB endorsed Martin-Diehl’s “Findings of Fact and Conclusions of Law” and approved Oklahoma City’s permit application. https://www.owrb.ok.gov/legal/OKC2007-0017/09-25-17PFOFof2007-17.pdf

                OKC’s water withdrawals from the river would increase from 8,000 acre-feet per year in 2035 to an eventual rate of 115,000 acre-feet a year by 2065.

Water Withdrawals of Such Magnitude Would Jeopardize Endangered Mussels

                These actions “make it reasonably certain that the instream flow of water will be reduced to a level that will jeopardize the continued existence” of three species of endangered mussels, Page declares in his petition. Those are the Ouachita rock pocketbook and the scaleshell mussel, both of which are federally listed as endangered; a third endangered species, the winged mapleleaf mussel, has been reported in the Kiamichi but its status is uncertain.

                “These endangered mussels are only able to inhabit flowing water systems (streams) of a certain size,” Page wrote.

                “These mussels do not inhabit waters impounded by reservoirs and also may be adversely impacted by reservoir operations, e.g., flow regimes altered by releases from reservoirs into downstream reaches,” Jonna Polk, field supervisor with the U.S. Fish and Wildlife Service, wrote in a letter dated 10 April 2017.

                They are freshwater mussel species that are members of “an unusually diverse, productive mussel community inhabiting the Kiamichi River, which also supports a high diversity of other native aquatic species,” according to Dr. Caryn Vaughn of the University of Oklahoma.

                Furthermore, the endangered mussels have experienced “extensive reduction in their historical habitat ranges, and for each the Kiamichi River is one of relatively few streams that support surviving populations,” Page writes in his petition.

                Mussel populations in the Kiamichi have declined by 60% over the last 25 years, Page claims in his petition. In the case of the Ouachita rock pocketbook mussel, the Kiamichi “supports the only remaining viable population in the world,” he says.

                The Kiamichi River is “known for its high aquatic biodiversity,” Vaughn wrote in 2000. The river is home to more than 86 species of fish, she wrote; 16 of those fish species are designated in Oklahoma as Species of Greatest Conservation Need, Polk wrote in her letter. The Kiamichi also is home to 30 species of freshwater mussels, which provide important habitat and other services for other river organisms, such as insects and fish, Vaughn wrote in 2006.

                Dr. Vaughn has “worked extensively” in the Kiamichi River Basin and is “a renowned expert” about freshwater mussels, Norman attorney Kevin Kemper wrote in a lawsuit he filed in Pushmataha County on 8 November 2017 against the City of Oklahoma City and the Oklahoma Water Resources Board. http://www.oscn.net/dockets/GetCaseInformation.aspx?db=pushmataha&number=CV-2017-32&cmid=38184

FWS Must Be Consulted

                The Kiamichi River meanders approximately 170 miles from its headwaters in LeFlore County in the Ouachita Mountains, through Pushmataha and Choctaw counties, and empties into the Red River below the Hugo Lake dam.

                The portion of the Kiamichi “that has been inhabited by the endangered mussels in recent times” is an approximately 88-mile segment that extends from near Whitesboro, in LeFlore County, to just upstream of Hugo Reservoir, according to the U.S. Fish and Wildlife Service (FWS).

                When a species is listed as threatened or endangered, a section of the Endangered Species Act (ESA) “requires that all federal agencies ‘insure’ that their actions “[are] not likely to jeopardize the continued existence of any endangered species or threatened species,” Page writes in his petition.

                The Fish and Wildlife Service is “the expert agency with respect to most terrestrial and freshwater species, including the endangered mussels,” he continues. Under joint regulations, a federal agency must “initiate a … consultation with the FWS whenever it undertakes an ‘action’ that ‘may affect’ a listed species or critical habitat.” The threshold is “low” for a “may affect” finding and the required ESA consultation.

                “Any possible effect, whether beneficial, benign, adverse or of an undetermined character, triggers the formal consultation requirement,” Page cites verbatim from the Federal Register of 3 June 1986.

                Also, under the ESA the “action area” is broadly defined as “all areas to be affected directly or indirectly by the federal action and not merely the immediate area involved in the action,” he quotes from the Code of Federal Regulations. “The potential ‘effects’ of an agency action that an agency must consider are similarly broad and include both the ‘direct’ and ‘indirect’ effects of the action and all activities interrelated or interdependent with that action,” Page writes.

Environmental Impact of OKC Permit May Be ‘Irrelevant’ to the OWRB, But Federal Laws Say Otherwise

                The seven petitioners in Kemper’s lawsuit were wrong when they claimed that environmental factors such as aesthetic value, aquatic wildlife, and tourism constitute “beneficial uses,” Oklahoma City wrote in a response filed in Pushmataha County District Court on 18 March 2019. In this case, beneficial use considerations “primarily arise in determining whether the City intends to put the water to beneficial use,” OKC declared.

                Further, Oklahoma City argued that ensuring adequate in-stream flow to support mussels in the Kiamichi was “irrelevant” because Oklahoma’s statutory requirements for approval of a stream water application “do not include consideration of the potential environmental effects of a proposed permit” on streams such as the Kiamichi River “that have not been designated as a ‘scenic river area’ or ‘Outstanding Resource Waters’.”

                But federal laws say otherwise. “Multiple laws (e.g., the Endangered Species Act of 1973 and the Clean Water Act of 1972) require consideration of environmental effects posed by projects such as that authorized by” Oklahoma City’s stream water permit issued by the Water Resources Board, Polk wrote in her letter dated 10 April 2017.

                None of the water quality, ecological and recreational needs are defined in the settlement agreement definitions, and the Oklahoma Administrative Code “includes no specific reference to ecological needs of the Kiamichi River,” Polk wrote in her letter. “Without definitions of these factors and an identified basis for measuring their status, it is not possible to judge the adequacy of the model for ensuring their protection.”

F&WS Deems Moyers Crossing An ‘Undesirable’ Diversion Site

                The water that Oklahoma City would suck out of the Kiamichi River would be taken from some point in the vicinity of Moyers Crossing approximately 31 miles south of Sardis Lake, on the Kiamichi River.

                However, the U.S. Fish and Wildife Service “has consistently expressed our concerns” about use of Moyers as a major diversion point “due to the impacts that site would pose for the endangered Ouachita rock pocketbook and for a high-quality native mussel community in general,” Polk wrote in her letter.

                In fact, more recent FWS approaches to conservation planning “have reinforced our assessment of Moyers as an undesirable diversion site…” The agency instead recommends that if any major diversions from the river basin are to occur, they should “take place at Hugo Lake or comparable downstream locations.”

FWS Concerned About ‘Environmental Effects’ Of OKC Water Permit

                In her letter Polk asked the Oklahoma Water Resources Board to “not issue” the permit requested by Oklahoma City, and requested that the OWRB “hold a hearing on this matter so that the potential ecological and environmental impacts can be better evaluated and addressed.”

                The Polk letter “stated that FWS had no records indicating the City had submitted an Application for Permit to the FWS’s online project review process in order to address potential take of listed species posed by the permit, and that parts of the project involved federal action,” Page notes in his lawsuit. Also, “There is no mention of any consultation pursuant to ESA.”

                The FWS letter “specifically expressed concern regarding several species of endangered mussels,” including the three in the Kiamichi River Basin, Page continues. The FWS letter also “expressed concern regarding the multiple significant environmental effects on native species and habitats that are protected as federal trust resources” posed by the water appropriations authorized by the 2016 settlement agreement and requested in the city’s permit application.

                “Therefore, a formal consultation under the ESA was required but did not occur,” Page asserts. In fact, he claims, “None of the defendants consulted with FWS concerning the effect of the settlement agreement” or the stream water permit “on the endangered mussels.”

Court Asked to Bar OKC From Siphoning Water In Violation of ESA

                The plaintiffs ask the federal court to:

                ● declare that the U.S. Interior Department is in violation of the Endangered Species Act “by failing to complete consultation to ensure that its approval and implementation of the settlement agreement is not likely to jeopardize the continued existence of endangered mussels.”

                ● enjoin the U.S. Interior Department from allowing the appropriation of water from the Kiamichi River Basin in violation of the ESA “and to avoid or remediate harm” to the endangered mussels “until such time as consultation is complete” and the department “has implemented, or ensured implementation of, permanent measures necessary to ensure against jeopardy to the continued existence of the endangered mussels.”

                Page maintains that it is legally permissible to “take” protected species only in “very limited circumstances closely regulated” by federal agencies. The Interior Department, through the FWS, may issue incidental take permits (ITP) that allow the taking of a protected species when such taking is “incidental to, and not the purpose of, carrying out of an otherwise lawful activity.”

                Unless “a particular actor” has been properly exempted, an incidental take of protected species is “unlawful and in violation of the ESA,” Page writes. “No such ITP exists for taking the endangered mussels as a result of the appropriation of water from the Kiamichi River and Sardis Lake pursuant to the settlement agreement” or the stream water permit.

                The water diversions provided for in the settlement agreement and the permit would “significantly impact the endangered mussels’ habitat which will kill, harm and harass these species” as defined by the ESA and its regulations. “Harm” is defined in the Code of Federal Regulations to include “significant habitat modification or degradation that kills or injures a listed species by significantly impairing essential behavioral patterns, including breeding, rearing, migrating, feeding or sheltering.”

                The plaintiffs ask the federal district court to bar the defendants from “appropriating, or taking steps toward appropriating, water from the Kiamichi River Basin until a plan has been developed which does not constitute a ‘taking’ under the Endangered Species Act.”

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