Supreme Court rejects Texas effort to gain access to Oklahoma water

06/13/2013 11:29 AM

06/26/2013 10:49 AM

Oklahoma beat Texas at the Supreme Court on Thursday in a cross-border contest over water for the Fort Worth area.

In a unanimous decision, the court rejected efforts by the Tarrant Regional Water District to tap into a Red River tributary that flows through Oklahoma. Though Oklahoma and Texas are part of a hard-fought Red River Compact that divides up the region’s water, the court’s nine justices reasoned that the deal goes only so far.

“Cross-border rights were never intended to be part of the states’ agreement,” Justice Sonia Sotomayor wrote for the court. “There is no indication that Tarrant or any other Texas agency, or the state of Texas itself, previously made any mention of cross-border rights within the compact.”

The court’s 24-page decision, accompanied by two color maps, leaves the Tarrant Regional Water District unhappy and scrambling for aquatic alternatives.

“Obviously, we are disappointed with the Supreme Court’s decision,” Jim Oliver, the general manager of the water district, acknowledged in a statement. “The population in our service area is expected to double over the next 50 years, so we will act quickly to develop new sources.”

Oliver added that “the decision does not address the problem of Oklahoma’s lack of water infrastructure, and we believe solutions that benefit both Texas and Oklahoma still exist. We will continue to explore and advance those opportunities.”

In her opinion, which cites the “famed college football rivalry between the Longhorns of Texas and the Sooners of Oklahoma,” Sotomayor noted that the Red River “has been the cause of numerous historical conflicts between the two states, leading to a mobilization of their militias at one time.”

Oklahoma, Texas, Arkansas and Louisiana took some 25 years to negotiate the Red River Compact, signed in 1978, as a way to share access to the 1,300-mile river, which moves from the Texas Panhandle southeast through the three other states. The compact was meant to peacefully mediate among states whose competition, Sotomayor pointed out, has led to conflicts such as the “Red River Bridge War” of 1931.

The compact allocates most of the water it apportions to the states in which that water is located. In certain cases, though, the compact splits water equally among the four states.

This case concerns water in an area that encompasses territory in Texas, Oklahoma and Arkansas. Tarrant argues that the compact means Texas has a right to 25 percent of the sub-basin’s water above a certain level.

Tarrant, which serves some 2 million customers in the Fort Worth area, applied for water from an Oklahoma tributary to the Red River. Oklahoma, though, has in place what Texas officials call “a panoply of expressly discriminatory state laws” that impede the Texas water claims.

Oklahoma, for instance, requires explicit approval by its state legislature for out-of-state water sales, and it imposes special permitting procedures on potential out-of-state water customers.

The Texas water district attacked Oklahoma’s position on two fronts, claiming that the Red River Compact overrides the state’s restrictive water laws and that Oklahoma’s laws violate the constitutional mandate that states not discriminate against one another.

Both legal attacks failed.

“Under the compact’s terms, water located within Oklahoma’s portion of (the river basin) remains under Oklahoma’s control,” Sotomayor wrote. “Accordingly, Tarrant’s theory that Oklahoma’s water statutes are pre-empted because they prevent Texas from exercising its rights under the compact must fail because the compact does not create any cross-border rights.”

Sotomayor further reasoned that the so-called dormant Commerce Clause of the Constitution, which prohibits states from erecting legal barriers against one another, doesn’t apply in the case. Because there’s no unallocated water in the region, she said, the Texas water district couldn’t show that it was discriminated against in its bid for unallocated water.

The court has two weeks remaining to issue the final decisions from this term, including cases that challenge the federal Defense of Marriage Act and the affirmative-action admissions program at the University of Texas.

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