Oklahoma Water Resources Bd. v. Texas County Irrigation and Water Resources Assn. , 1984 Okla. LEXIS 176 ( 1984 )

ROBINSON, S.J.,

concurring in part, dissenting in part:

I concur with Part I and II of the majority opinion but must respectfully dissent from Part III of said opinion. I dissent from the concurring opinion. I do not dissent, however, to those portions of the majority opinion and the concurring opinion dealing with the “automatic” revalidation of a temporary permit under the Water Resources Board’s (Board) rule 840.4.

I recognize that the question and issue of waste has never been raised or presented by any party for review. All of Appellants’ assignments of error in both the petition in error and the briefs relate solely to the trial court’s ruling that the water could not be used away from the lands beneath which the water was withdrawn. Appellee did not cross-appeal. I would therefore follow this court’s settled rule that appellate jurisdiction and authority is limited to issues raised and presented for review and ruling. I am compelled, however, to address what I think are the majority and concurring opinions erroneous conclusions concerning waste by pollution.

After an exhaustive review of the record and applicable statutes, I am convinced that the Order of the Board has a substantial basis in evidence and that Mobil Oil Corporation (Mobil) proved the essential elements required by 82 O.S.1981 § 1020.9: (1) that Mobil leases lands overlying the Ogallala formation; (2) that Mobil’s intended use was a beneficial use; and (3) that neither waste by pollution nor waste by depletion would occur. I also conclude that the Board’s order contained essential findings of fact as required by 75 O.S.1981 § 312 concerning the absence of waste.

I

FACTS IN EVIDENCE

Mobil holds valid groundwater leases covering 3,442 acres overlying the Ogallala water basin. Mobil’s intended use of the fresh water is for secondary and tertiary oil recovery. Mobil proposes to withdraw 6375.03 acre-feet of fresh groundwater annually during a projected 20 year life of its oil and gas recovery project with an average of .744 acre-feet of fresh groundwater per acre of leased ground water rights being withdrawn annually. Maximum use would occur in 1993 when 1.852 acre-feet of fresh groundwater would be withdrawn and minimum use would occur in 1998 when .209 acre-feet of fresh groundwater would be withdrawn. Such use could be characterized as minimal when compared with irrigation and other uses. The use of fresh water allows 240% increase in oil recovery while utilizing only 5% of the fresh water required to irrigate the same area of land. The income generated with 5% of irrigation requirements is 480% more than 100% irrigation requirements. 21,-556,000 barrels of secondary oil would be produced plus 30 million barrels of tertiary oil for a total of 51,556,000 barrels of oil. Based on an average of $15.00 per barrel for secondary oil and $30.00 per barrel for tertiary oil a total gross revenue of $1,223,-340,000. would be shared by 800 mineral owners and 55 working interest owners.¹ It should be noted that this income would also provide gross production tax revenue (at the present rate of 7.1%) of $86,857,-140.00 to the State of Oklahoma. In addition natural gas is the energy source for nearly all irrigation wells.

In an economic study, Mobil compared the relative cost of salt water versus fresh water. Case studies showing a comparison of the Hugoton, Glorietta and Shawnee salt water with Ogallala fresh water were presented. The Hugoton gas zone-produced-brine water was not acceptable due to a required network of pipelines of 4,620 miles in length covering 128 townships. The Glorietta brine water was chemically and physically incompatible with the producing formation Morrow connate and free water within the Morrow formation. More importantly the Glorietta water contained significant calcium and magnesium in solution and when mixed with Morrow formation water precipitates huge volumes of calcium sulfate commonly known as gypsum, relatively insoluble, and calcium carbonate, resulting in formation plugging of the oil producing wells at the time the water breaks through in the pressure maintenance operations. Plus the Glorietta water is saturated with carbon dioxide and thus is extremely corrosive to any distribution system. The Shawnee brine water also contains large volumes of calcium and magnesium producing calcium sulfate and calcium carbonate which can plug the producing oil wells. Significant amounts of remaining secondary reserves would be lost using Shawnee brine water plus a total loss of tertiary reserves² of 30 million barrels. Numerous times Mobil’s witnesses testified that the low tension water flooding which is the tertiary process could not utilize salt water. Mobile’s witness also testified that although salt water could be used in the secondary recovery phase it would not result in the use of less fresh water because before tertiary could be initiated the salt water would have to be flushed out of the formation by the use of the Ogallala fresh water in order to condition the reservoir for tertiary. Lastly the record reflects that the fresh groundwater is recycled time after time in this closed injection system and that only makeup water is added to replace the displaced oil and gas from the formation so that volumes and pressures in the system may be maintained.

II

DOES MOBIL’S BENEFICIAL USE CONSTITUTE WASTE?

I will address initially my belief that the majority and concurring opinions apply certain statutes concerning waste (namely 82 O.S.1981 § 1020.15 and 82 O.S.1981 § 926.-1) that the Legislature clearly did not intend to be applied in the instant controversy involving the issuance of a permit under 82 O.S.1981, § 1020.9.

82 O.S.1981 § 1020.15 is entitled Waste— Prosecutions and states “the Board shall not permit any fresh groundwater user to commit waste by: ... ” and then lists a series of definitions concerning what waste actually is under the groundwater law and which may occur after the permit issues under § 1020.9. Thus § 1020.15 is not concerned with the issuance of permits but rather provides for prosecution against the commission of waste. Section 1020.15 provides for filing of a complaint and also provides for suspension of the permit. This statute involves the misuse of fresh groundwater and is not to be used as a requirement or a condition precedent to issuance of a fresh groundwater permit.³ This court has previously held that what § 1020.15 contemplates and addresses is “after-the-fact” occurrences of waste, i.e. waste, and the prosecution for same, that occurs at some future point subsequent to the issuance of a permit. Lowrey v. Hodges, 555 P.2d 1016 (Okl.1976). Lowrey provides at page 1023:

We further find that the definitions of waste set forth in 82 O.S.1975 Supp. § 1020.15 contemplate an after-the-fact finding of waste and set out the procedure for criminal prosecution, injunction, and suspension of a permit when and if it occurs.

Accordingly the definitions of waste under § 1020.15 are inapplicable in the instant appeal which involves the issuance of a permit under § 1020.9 and not an alleged commission of waste, after-the-fact, under § 1020.15.

The second statute which I believe is not applicable to the issuance of a permit under the Oklahoma Groundwater Law, 82 O.S. §§ 1020.1 et seq., is 82 O.S.1981 § 926.1 defining pollution. The § 926.1 definition of pollution is found in a totally separate act from the Oklahoma Groundwater Law. 82 O.S.1981 §§ 926.1 to 926.13 is an act entitled Pollution Remedies and was enacted in 1972. The Oklahoma Groundwater Law Act became effective July 1, 1973. These are two distinct acts and in my opinion deal with two distinct subjects. Section 926.2 of the Pollution Remedies Act is entitled Declaration of Policy and states:

Whereas the pollution of the waters of this state constitutes a menace to public health and welfare, creates public nuisances, is harmful to wildlife, fish and aquatic life, and impairs domestic, agricultural, industrial, recreational and other legitimate beneficial uses of water, and whereas the problem of water pollution of this state is closely related to the problem of water pollution in adjoining states, it is hereby declared to be the public policy of this state to conserve the waters of the state and to protect, maintain and improve the quality thereof for public water supplies, for the propagation of wildlife, fish and aquatic life and for domestic, agricultural, industrial, recreational and other legitimate beneficial uses; to provide that no waste be discharged into any waters of the state without first being given the degree of treatment necessary to protect the legitimate beneficial uses of such waters; to provide for the prevention, abatement and control of new or existing water pollutions; and to cooperate with other agencies of this state, agencies of other states and the federal government in carrying out these objectives. [Emphasis added]. 82 Okla.Stat. § 926.2 (1981).

Section 926.13 of the Pollution Remedies Act states the Act’s purpose and construction to be:

It is the purpose of this act to provide additional and cummulative remedies to prevent, abate and control the pollution of the waters of this state_82 Okla. Stat. § 926.13 (1981).

The purpose therefore of the Pollution Remedies Act is totally distinct and separate , from the purpose of the Oklahoma Groundwater Law Act. The former deals with a use which attributes itself to pollution such as discharging waste into the waters of this state. It concerns the control of municipal sewage disposal systems, the issuance of permits for the discharge of waste into the waters of the state and provides penalties. This Act has nothing to do whatsoever with the issuance of a permit to use fresh water under the Oklahoma Groundwater Law, 82 O.S.1981 §§ 1020.1 et seq. As the majority opinion concludes, the Groundwater Law Act adopted a policy of “utilization” of water and only those statutes pertaining to the granting of a groundwater permit should apply in the instant case. This case deals with the consumptive use of ground water under the Groundwater Law Act as distinguished from the Pollution Remedies Act dealing with the control and prevention of discharge into state waters of industrial wastes.

The only statute I perceive that is applicable to the present controversy dealing with the issuance of a fresh groundwater permit is 82 O.S.1981 § 1020.9 which provides that the Board “shall” issue a permit if, among other things, it finds: "... that waste will not occur ...”. We therefore must determine the meaning of the word “waste” under this particular section only, with the cautionary requirement that waste must be given a reasonable meaning so that the legislative policy of utilization of Oklahoma’s groundwater will not be thwarted.

Appellees contended at the hearing (albeit without presenting evidence) that the fresh groundwater used by Mobil in these five units would be totally destroyed and polluted and “lost to the use of man”. Appellee also expressed concern that this “polluted” water would somehow escape the formation and migrate upwards reaching the Ogallala or other groundwater formations and polluting same. The majority and concurring opinions imply that the addition of the polymers to fresh water results in pollution.

While it is true that the groundwater would undergo changes as it is being utilized in the secondary and tertiary operations,⁴ it is also true that water used in irrigation changes its chemical characteristics as it percolates through fertilizer and other chemicals sprayed on crops and through the surface of the earth. Changes in water also occur during domestic and other industrial uses when fresh water absorbs dirt, sewage, detergents and other chemicals. After use, all groundwater changes its chemical characteristics and composition. Nowhere in the Groundwater Law does it say that the changing of fresh water chemical characteristics is pollution.

As a result of the reduced pressure on the surface as compared with the pressure in the Morrow formation, some of the groundwater produced in solution with the oil vaporizes and is returned to the hydrological water cycle. The water remaining in the oil producing formation at the end of the tertiary process will remain there for whatever purpose the Board dictates. The Board retains jurisdiction for any “after-the-fact finding of waste” as contemplated in Lowrey, and it is certainly conceivable that the Board could dictate that Mobil retrieve said water and treat it. The water used by Mobil is certainly not destroyed or its use lost to man.

The case of Hodges v. Oklahoma Water Resources Board, 580 P.2d 980 (Okl.1978) supports my position that the use by man whereby fresh water’s chemical characteristics are changed is not waste by pollution in the context of the Oklahoma Groundwater Law. In Hodges, this Court cited Low-rey and stated that protestants had presented some evidence that the total mineral content of domestic wells in the area might be increased when the irrigation water filtered back into the groundwater formation causing the quality of the water to be diminished. This Court stated that such evidence however was inconclusive. In the present case Appellees have not presented any evidence, let alone evidence that the change of the groundwater’s chemical characteristics ■ by industrial use in secondary and tertiary oil recovery is, under this utilization statute, waste by pollution. Such a conclusion would result in an absurdity rendering the statutes meaningless, and would violate the evident legislative intent that the Oklahoma Groundwater Law has as its purpose the utilization of the groundwater resources of the State of Oklahoma.

The Lowrey case is also instructive wherein this Court stated:

Regarding the question of waste, the Ap-pellees contend the evidence in each particular case, including facts officially noticed in the record, must show that waste will not occur as provided in 82 O.S.1975 Supp. § 1020.9. We would agree that an applicant must show what method he intends to use for irrigating a particular area; but once that information has been furnished the Board, it then has the authority to determine that waste will not occur. If the Protestants think that waste will occur, they would need to present that evidence to the Board for its consideration. Here, the Appellants introduced their plan to the Board and the plan was approved by the Board as not being wasteful.

If the plans submitted to the Board do not on their face demonstrate such waste, and the Protestants fail to introduce evidence to substantiate that waste will occur, and the Board finds that waste will not occur, the statute has been satisfied and further questions concerning waste must await completion of the project. [Emphasis added]. Lowrey v. Hodges, 555 P.2d 1016, 1023 (Okl.1976).

In addition, I would like to point out that there is substantial evidence in the record to support the conclusion that no waste by “depletion” will occur. Evidence shows this is a closed system which serves as a container for the groundwater as well as the oil and gas and there is no danger that the chemicals will reach the Ogallala or any other groundwater formations. Also the water used is continuously recycled with only “makeup” fresh groundwater being required to replace the deplaced oil and gas recovered from the reservoir.

In conclusion, I find the Board’s order was supported by substantial competent evidence that waste, commensurate with the legislative intent concerning the utilization of groundwater under the statute, would not occur. In Texas County Irrigation v. Cities Service Oil Co., 570 P.2d 49 (Okl.1977) this Court allowed the use of fresh groundwater in secondary oil recovery even though the fresh groundwater characteristics are changed to salt water while in the formation. This Court decided that secondary flooding operations were not waste per se and the majority opinion affirms this holding. I would agree that all use of fresh groundwater for secondary or tertiary oil recovery is not per se or “of itself” waste under the groundwater law, and under the evidence of the instant case polymer flooding has not been shown to be waste by pollution or depletion.

Ill

WHAT EFFECT DOES THE MAJORITY’S VIEWS HAVE ON OUR DEPLETING GROUNDWATER SUPPLIES?

Even though I think, as outlined above, the utilization policy of our groundwater law, the language of the statutes, and the evidence presented in this case dictates the above result, I agree with my colleagues on the majority and concurring opinions that we need to be gravely concerned about the frightening depletion of the Ogallala aquifer underlying our state and several other western states. I disagree however that the majority and concurring opinions conclusions will solve this problem. On the contrary, I believe the result of these opinions will be continued high depletion rates with detrimental economic consequences for the State of Oklahoma.

Since the majority and concurring opinions imply that the change of fresh water characteristics and chemical content is waste by pollution requiring denial of any fresh water permit under the groundwater law, on remand Mobil will not prevail and will not receive a fresh water permit for secondary and tertiary recovery of oil as both methods “pollute” the fresh groundwater. I also believe that as a result of these opinions other industrial and agricultural uses of water will be in question and prohibited as waste by pollution. Effectively therefore these opinions will legislate and change our statute from a utilization statute to a conservation statute. In my opinion this will not, however, prevent the depletion of the Ogallala aquifer. Why? Because the states surrounding Oklahoma will continue to utilize the aquifer’s water far in excess of its recharge rate. Even though as pointed out in the concurring opinion, Texas and other states are aware of the problem, they are not trying to curtail use but are only trying to find methods to “recharge” or replenish the aquifer. In my mind we will be merely denying ourselves water-dependent industrial and agricultural economic growth, as set out on page 19 footnote 45 of the concurring opinion, while not preventing a significant drop in the water table. With the refusal of Mobil’s industrial project alone Oklahoma will be denying itself millions of dollars in tax revenues and income to mineral and interest owners, not to mention the fifty million barrels of oil lost to the people of the United States. Magnify this many times over if fresh water permits are not hereafter allowed for industry and agricultural pursuits because such use changes the chemical characteristics, thereby causing waste by pollution. Using the analogy of the concurring opinion, if the pie is going to be used up I want Oklahoma to have a piece of that pie so its economy will continue to prosper and grow as the surrounding states economies do by the use of the Ogallala aquifer.

As noted in a recent law review article: The valuation of water bothered Adam Smith in The Wealth of Nations. He asked: “How is it that water, which is so very useful that life is impossible without it, has such a low price — while diamonds, which are quite unnecessary, have such a high price? Modern economists explain this by using the microeco-nomic concept of utility, the theory that explains value according to the degree to which the thing valued contributes to man’s most urgent necessities. The total utility of water does not determine its price or demand. Only the relative marginal utility and cost of the last little bit of water determines its price. Since we have an abundant supply of water today, the price is low. As water becomes scarce, its price will rise dramatically. See P. Samuelson, Economics: An Introductory Analysis, 424 (7th Ed.1967). Note: Oil and Gas: Water and Watercourses: The Right to Use Fresh Groundwater in Waterflood Operations, 35 Okla.L.Rev. 158, 166 n. 51 (1982).

I agree with the economic theory that when water becomes scarce the price will go up and then states will change their utilization policy to a conservation policy. Surely responsible state legislators and/or the federal government will solve this problem before the near depletion of the aquifer. The states on their own initiative could form interstate compacts to deal with this situation. The United States Supreme Court has already addressed the problem in Sporhase v. Nebraska ex rel Douglas, 458 U.S. 941, 102 S.Ct. 3456, 73 L.Ed.2d 1254 (1982). Due to the West and Southwest’s water supply depletion several states passed legislation to prohibit or limit interstate transfers of groundwater. Nebraska’s embargo statute was reviewed in Spo-rhase and the Court found the Nebraska Legislature violated the commerce laws and that groundwater was an article of commerce and subject to judicial restraints on state control and potential federal regulation. The Court stated: “the multistate character of the Ogallala aquifer — appellant’s tracts of land in Colorado and Nebraska, as well as parts of Texas, New Mexico, Oklahoma, and Kansas — confirms the view that there is a significant federal interest in conservation as well as in fair allocation of this diminishing resource.” Sporhase v. Nebraska ex. rel. Douglas, 458 U.S. 941, 953, 102 S.Ct. 3456, 3463, 73 L.Ed.2d 1254 (1982). It is argued that Spo-rhase gives Congress a clear invitation that it will find the constitutional road clear should it decide to address the problem of groundwater conservation and management.⁵ As noted in the concurring opinion, the United States Senate has passed legislation funding study and construction of groundwater “recharge” projects in western states including Oklahoma and the Ogallala aquifer. I submit that these federal and/or combined state efforts are the only solution to prevent the threatened depletion of the southwest and west’s limited water supply. Changing this State’s policy from utilization to conservation and denying its inhabitants industrial and agricultural uses of the groundwater only results in an adverse economic impact to the state and does not prevent the exhaustion of the Ogallala aquifer.

IV

THE BOARD HAD ADEQUATE RULES AND THUS AUTHORITY TO ISSUE THE TEMPORARY PERMIT

The concurring opinion opines that because the Board had no rules specifically refering to tertiary recovery, it lacked authority to issue temporary permits to use fresh groundwater for tertiary oil recovery. The Board however at the time of the hearing had specific rules concerning secondary recovery setting forth the procedures to be followed before the Board. Subsequently all the Board did was to change the definition of Enhanced Recovery of Oil & Gas to include tertiary and changed the secondary recovery procedural rules to include tertiary recovery. No substantive changes were made to the secondary procedural rules. No additional or new rules concerning tertiary were needed. In my mind there is very little difference between secondary and tertiary recovery. The former uses fresh water which is changed to salt water in the formation and the later uses a polymer and fresh water. In both instances the fresh water’s chemical characteristics are changed. The procedural rules have to be, and indeed are, identical for both secondary and tertiary recovery. Therefore, it is my belief that the Board had at the time of the hearing necessary and adequate procedural rules concerning the use of fresh water for enhanced oil recovery (both secondary and tertiary) and thus had the requisite authority to issue the temporary permit to Mobil.

V

TEMPORARY PERMIT REVALIDATION

I would agree with both the majority and concurring opinion that those holding temporary permits must annually substantiate the legal foundation for its original temporary permit and the provisions of 82 O.S. 1981 § 1020.9 must be complied with in order to “revalidate” a temporary permit. The Water Resources Board Rule 840.4 therefore is invalid because it provides for annual automatic revalidation of a temporary permit based solely upon a statement of rate of consumption unless the revalidation is protested. Mobil must annually, upon the anniversary of the issuance of the temporary permit, present evidence at a hearing before the Board that the fresh groundwater continues to be used beneficially and that waste, as contemplated under the Act, will not occur.

VI

DOES THE BOARD’S ORDER CONTAIN ESSENTIAL FINDINGS OF FACT CONCERNING WASTE?

The Board’s order states in part:

5. ... and further, under the evidence presented and as contemplated by law, waste, by virtue of applicant’s intended use, will not occur. With regard to this finding and determination, the Board acknowledges the variously related concerns and objections of Protestants, the same said concerns and objections being generally that the granting of the subject application would result in waste. Respecting these objections and concerns, the Board finds and determines such objections are not supported or sustained by, and are contrary to, the reliable, competent, and substantial evidence presented herein, the same being as reflected by the testimony and all exhibits presented, and such objections cannot therefore be sustained.

The majority opinion states that “the specific probative , evidence upon which the Board presumably based its general conclusion that waste — waste by pollution, as well as waste by depletion — will not occur, is not included in the order. Mere recitation that the Board finds that waste will not occur is insufficient. A finding of no waste must be supported by evidence in the record”.

First I would point out that a “SUMMARY OF EVIDENCE PRESENTED” is attached to the Board’s order wherein it is stated as follows:

The following objections were entered in the hearing record by Mr. Forrest Nelson, representing the Texas County Irrigation and Water Resources Association; 1. Mr. Nelson objected to the surface injection pressures to be used, which would range from 700 psi up to 2,000 psi, on the grounds that use of such pressure in this oil recovery operation would cause, through the existence of all improperly plugged wells in the area, pollution of the Ogallala fresh water formation, (Refer Exhibit 4F).

The Board finds however that this objection cannot be sustained for the reason that there was no evidence presented nor available otherwise, that such “improperly plugged” wells did exist in the area. 3. Mr. Nelson objected to the use of the fresh groundwater for secondary and tertiary oil recovery on the grounds that such use of fresh water would remove the water from the freshwater cycle and would cause the water to become polluted, and wasted.

The Board finds and determines, based upon testimony, exhibits and evidence presented that applicants intended use and manner of use subject of this application, all being summarized in greater detail above, is a beneficial and non-wasteful use of fresh groundwater as contemplated under the provisions of 82 O.S.Supp.1972, 1020.9.

In my view the above quoted portions could be nothing else but “essential findings of fact that waste will not occur based upon and supported by evidence in the record”. Clearly therefore the Board’s order complies with 75 O.S.1981 § 312, the Oklahoma Administrative Procedures Act.

The Board’s Order significantly states “and further, under the evidence presented as contemplated by law, waste, by virtue of applicant’s intended use, will not occur”. Also significant is the fact that the Board in its finding of fact states that the use of fresh groundwater was not waste “as contemplated under the provisions of 82 O.S. Supp.1972, 1020.9”. As discussed in Part III above, the conclusion that polymer flooding constitutes waste under 82 O.S. 1981 § 1020.9 clearly was not contemplated by the Legislature under the Oklahoma Groundwater Law. The Board’s Order therefore contains essential findings of fact to support a finding that waste will not occur by pollution or depletion in the process of secondary and tertiary oil recovery.

I am authorized to state that BARNES, C.J., concurs in the views expressed herein.

1 . In May, 1981, the price of oil was decontrolled. The price of oil today in the Oklahoma Panhandle area is $27.85 per barrel. Kerr-McGee Refining Corporation’s Crude Oil Price Bulletin, #91, Effective December 1, 1984 at 7 a.m. Therefore, the total gross revenue today for both secondary and tertiary oil would be $1,435,834,600.

2 . It might be helpful to explain ‘‘primary, secondary and tertiary recovery". Primary production ends when the reservoir is incapable of efficient production due to a loss of energy. Secondary recovery primarily by waterflooding is then instigated to increase the amount of oil that can be produced. Water is injected into an oil reservoir for the purpose of washing the oil out of the well. H. Williams and C. Myers, Oil & Gas Law, Manual of Oil & Gas Terms 821 (1981). Tertiary recovery is best described by Mobil’s expert witness at the Board’s hearing on August 16, 1979:

"Mr. Irwin: As of the end of primary we initiate secondary, so now we have a third method trying to recover that oil remaining after the primary and secondary, recalling that there is still from 50% to 70% of the oil that is still there that was originally there, and this oil primarily was recoverable, is primarily trapped in the pore spaces by capillary action. A demonstration of capillary action is best shown if you can think of the small cracked (sic) glass, straw, if you please dipped into a glass of water. First you will notice that the water in the straw will rise above the level of the water in the glass. This is the capillary action, the surface tension, the water as it rises in the tube is exactly what’s happening between the sand grains in the sandstone and the force to remove that, as we know it today, and I’m talking about brute force, is more force than we have. The only way that we can overcome this is to wet this rock with, in laymen’s terms, a detergent. It virtually eliminates surface tension, virtually in the areas contacted. If you don’t contact the area with detergent it’s still there. So by ‘tertiary’ we reduce the surface tension allowing more oil to be removed from that formation, but again we’re talking probably even less percentage wise than we did in the primary and secondary.... The soap detergent simply is, I think the word is, soluable, reactive and salt water is far, far, far, less than the reaction you will get in fresh water, almost to the point that, it would not be effective in a tertiary operation.”

3 . It should be noted that the Board’s order granting the permit does not find that waste will not occur under 82 O.S.1981 § 1020.15 but cited 82 O.S.1981 § 1020.9 after it found that waste would not occur.

4 . It should be noted that the majority opinion is only concerned with the “pollution” of the fresh water by the addition of polymers in the tertiary recovery and not with the "pollution” of the fresh water in the secondary recovery. While the fresh water will have no polymer additives in the secondary stage, it will change its characteristics from fresh water when it encounters salt water in the formation, i.e. the fresh water mixes with the salt water in the formation and no longer is fresh potable water. Because the majority’s definition is that any chemical change of fresh water is pollution and thereby waste then any permit for fresh water use in secondary recovery must be denied in contravention of Texas County Irrigation v. Cities Service Oil Co., 570 P.2d 49 (Okl.1977).

5 . Note, Federal Intervention in Groundwater Regulation: Sporhase v. Nebraska, ex rel Douglas, 18 Tulsa L.J. 713 (1983).