The city is looking at Lake Tenkiller water as one option to expand the city's water supply. To do so the city must have rights to the water, which has been obtained through the Oklahoma Water Resources Board, and a contract for water storage at the lake, which it hoped to obtain from Sequoyah Fuels.
The defunct uranium processing plant owned by Sequoyah Fuels near Gore has a storage contract, awarded by the U.S. Corps of Engineers, for 14,000 acre-feet of water.
Sallisaw officials were hoping to have that contract transferred to the city from Sequoyah Fuels, which is in the process of decommissioning.
In March, Sequoyah Fuels told the Cherokee Nation it could have the plant's water contract.
City Manager Bill Baker said Thursday that Sequoyah Fuels officials said the Cherokee Nation had a prior request for the storage contract.
Now the city is considering what options they have to seek the storage contract, and will go into executive session at the commission's Monday meeting to get advice from City Attorney John Robert Montgomery.
Baker said, "We've got the water rights to 14,000 square feet of water. That's not the issue. In addition we've got to get the storage contract."
Baker said the city could seek another storage contract from the U.S. Army Corps of Engineers, but the price has gone up. He explained that Sequoyah Fuels was awarded a storage contact in the late 1960s when the plant was opened at a cost of about $20,000 a year.
"A new contract is between $200,000 and $300,000 a year," Baker said.
Baker said the executive will cover the city's options, which will include the purchase of real estate, for a new water source.
The city's present water source is Brushy Lake. To prepare for future water demands, the city is in the process of developing the second water source. One of those options is Lake Tenkiller water. Other options include an expansion of Brushy Lake and the construction of a second lake, or water impoundment, north of Brushy Lake.
As the Sallisaw Municipal Authority, the city commissioners also have an executive session slated to discuss litigation to obtain a Lake Tenkiller storage contract.
"We want to ask our attorney if there is any possible legal action we can take to get Sequoyah Fuels storage contract transferred," Baker said. "It might not be possible."
Baker said the city's plan, if awarded the storage contract, was to take the city-designated water from the lower Illinois River and pipe it to the city. The city also sells water to several rural water associations.
In the meantime, the U.S. Army Corps of Engineers informed the Cherokee Nation that, since the tribe does not have water rights assigned by the Oklahoma Water Resources Board, it can not have a water storage contract.
The Cherokee Nation is objecting to the corps' decision, and promises a court battle over water rights.
Corps' spokesman Ed Engelke responded Tuesday that the corps has no rights to the water. The water rights are assigned by the state through the water resources board.
In a letter dated April 20, Cherokee Nation Chief Chad Smith wrote, "The Cherokee Nation has water rights that existed before Oklahoma became a state. These water rights were established under federal laws and treaties, and they were unaffected by statehood. The Cherokee Nation's water rights are not now, nor have they ever been, subject to any state law. Therefore, any Corps of Engineers' 'policy' that requires a state-issued water right can not be applied to the Cherokee Nation.
"The Cherokee Nation did not consent to the impoundment of water in Lake Tenkiller. The Cherokee Nation has not, to date, demanded compensation for past use of the Cherokee Nation's waters or compensation for damage to the Cherokee Nation's resources, culture and heritage caused by unauthorized alterations of the Illinois River, Barren Fork and other tributaries. The Corps of Engineers should not attempt to place inappropriate restrictions on the Cherokee Nation's use of this water.
"We understand that other entities, such as the City of Sallisaw, may wish to use this water for certain areas and/or purposes. However, the Cherokee Nation as a sovereign government has the authority and resolve to make sure this water is used in an equitable way - one that achieves maximum benefit to the Cherokee Nation's members, Oklahoma citizens and local communities while till respecting the need to accommodate downstream needs...."
The tribe's attorney, Julian Fite, said last the tribe looks at the water rights battle as a sovereignty issue and that the tribe will take its fight as far as necessary, including into litigation.
Fite also said the tribe has begun discussions on water agreements with Sallisaw and the Sequoyah County Water Association.
"We tried to assure them we want to work with everybody to solve the problem," Fite said, to provide water for the city, rural water district, and others.
He said he did not know about the tribe charging for use of the water storage contract. "That will be up to the chief and the council," Fite said.
"I don't know about charging. I guess that would be a possibility. There is some expense to the contract. The tribe will at least be looking at recovering that expense," Fite said, adding, "We'll be working for everybody's benefit and needs."
