This story was updated at 5:05 p.m. EST.
The Supreme Court today decided to intervene over a Texas water district's attempt to force Oklahoma authorities to allocate additional water to communities in north Texas.
The Tarrant Regional Water District wants the high court to reverse a September 2011 ruling by the Denver-based 10th U.S. Circuit Court of Appeals.
The appeals court rejected the claims made by the water district against the Oklahoma Water Resources Board. On the same day, it dismissed related claims made by the city of Hugo, Okla. (Greenwire, Sept. 8, 2011). On March 19, 2012, the Supreme Court declined to take up Hugo's case.
The Obama administration, in response to a request from the Supreme Court seeking its views, urged the court to hear the case (Greenwire, Dec. 3, 2012).
The district and Hugo had both sued the board seeking to invalidate Oklahoma state laws that -- they allege -- restrict allocation of water permits out of state. They argued that the laws unconstitutionally restricted interstate commerce under the Commerce Clause of the Constitution.
The appeals court said Hugo, which has a contract to provide water to Irving, Texas, did not have standing to sue, but it reached the merits of Tarrant's claims and ruled in favor of the board. Tarrant has negotiated deals with private property owners in Oklahoma.
As the appeals court noted, allocation of water in the region is already governed by a compact negotiated by Arkansas, Louisiana, Oklahoma and Texas, which was ratified by Congress in 1980.
Although surface water in Oklahoma is not covered by the compact, the agreement does give the state considerable discretion over how it apportions its water, the court held.
Therefore, the court concluded, Oklahoma could pass legislation -- as it did in 2009 -- that sought to protect its authority to allocate its water.
In its petition, Tarrant argued that the Supreme Court "has held on numerous occasions that a state may not discriminate against interstate commerce in water" unless there is an "expressly stated" or "unmistakably clear" congressional intent.
The compact in question contains no such language, the water district maintained. Instead, Oklahoma "is using avowedly protectionist rules to prohibit the transfer of water," the petition stated.
In response, lawyers for the Oklahoma agency claimed that the water district is seeking nothing more than to "overturn the express congressional apportionment of water contained in an interstate water compact."
Solicitor General Donald Verrilli wrote in the Obama administration's brief that high court review was warranted because the appeals court ruling would have "potentially great practical consequences for the availability of water in a major urban area in Texas."
Jim Oliver, general manager of the Texas water district, welcomed the Supreme Court's intervention.
"We expect the Supreme Court's decision will bring finality to the legal issues that have precluded us from addressing regional water needs," Oliver said in a statement.
Oklahoma Attorney General Scott Pruitt (R) said in a statement that he would continue to defend the state's "right to protect its natural resources."
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