WATERS AND WATER RIGHTS The Oklahoma Water Resources Board does not have the authority to set mandatory well spacing prior to completion of a hydrologic survey and allocation of the ground water to the land overlying a basin or sub-basin. The Attorney General has considered your request for an opinion wherein you present the following question: "Does the Oklahoma Water Resources Board have the authority to set mandatory well spacing prior to completion of a hydrologic survey and allocation of the ground water to the land overlying a basin or sub-basin?" Title 82 O.S. 1020.17 [82-1020.17] (1977) provides as follows: "Before issuing any permits in a ground water basin or subbasin the board may determine and order a proper spacing of wells which, in its judgment, is necessary to an orderly withdrawal of water in relation to the allocation of water to the land overlying the basin or sub-basin." The language found in the statute above-quoted clearly indicates that spacing orders may be issued by the Board when it has made the factual determination that such are necessary in order to effectuate an orderly withdrawal of water in relation to the allocation of water to the land overlying the basin or sub-basin. It is apparent that spacing orders must, by law, have a relation to the allocation of water in that area over which spacing orders are to have an effect. The process whereby water is to be allocated to the lands overlying basins or sub-basins is clearly set forth by the statutes. Title 82 O.S. 1020.5 [82-1020.5] (1977) sets forth the procedure whereby the Board is to determine the maximum annual yield produced by any basin or sub-basin. After this procedure is complied with, the Board must then follow the procedure set forth in 82 O.S. 1020.6 [82-1020.6] which provides in pertinent part as follows: "After such hearings are completed, the Board shall then proceed to make its final determination as to the maximum annual yield of water which shall be allocated to each acre of land overlying such basin or sub-basin." In 82 O.S. 1020.5 [82-1020.5], referred to above, the Legislature determined that maximum annual yields produced could not be determined until the hydrologic survey had been made. It is evident from a plain reading of 82 O.S. 1020.17 [82-1020.17], as quoted above, that if the hydrological studies and allocations have been made in a particular basin or sub-basin then, at that point in time, spacing orders may be properly issued by the Board with regard to regular permits. 82 O.S. 1020.11 [82-1020.11] provides that regular permits are granted only after completion of the hydrologic survey conducted to determine the maximum annual yield of the basin or sub-basin. If regular permits cannot be issued due to the fact that the hydrologic surveys and maximum annual yields have neither been completed nor determined then temporary permits may be issued by the Board. 82 O.S. 1020.11 [82-1020.11] provides that a temporary permit is an authorization for the same purposes as a regular permit but granted by the Board prior to the completion of their hydrologic survey and the determination of the maximum annual yield of the basin or sub-basin. Regular permits are based upon said hydrologic surveys and maximum annual yield determinations and as such spacing orders issued in conjunction with regular permits would have as their justifiable basis the information gained through the hydrologic study and the determination of the maximum annual yield. Before hydrologic studies are completed and maximum annual yields are determined the Board can not issue any permit other than a temporary permit for it has not established any permanent allocation of the water to the lands overlying the basins or sub-basins in question. 82 O.S. 1020.17 [82-1020.17] only authorizes the issuing of spacing orders when they are necessary to an orderly withdrawal of water in relation to the allocation of water to the land overlying the basin or sub-basin and such allocation cannot be determined until a hydrologic survey has been completed and a maximum annual yield determined. Therefore, it is the opinion of the Attorney General that your question be answered in the negative. The Oklahoma Water Resources Board does not have the authority to set mandatory well spacing prior to completion of a hydrologic survey and allocation of the ground water to the land overlying a basin or sub-basin. (AMALIJA J. HODGINS)
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