SUPREME COURT:

Justices struggle with interstate compact at heart of Texas-Okla. water war

The Supreme Court dove into a decadelong feud today over whether Texas has a right to draw water from Oklahoma under a 1980 interstate compact.

The justices struggled with the intent of the Red River Compact, which governs how Texas, Oklahoma, Arkansas and Louisiana can use the river.

Texas contends the compact gives it access to 25 percent of the water in a river sub-basin that stretches across southeast Oklahoma. But Oklahoma says the Lone Star State is reading the compact incorrectly.

The justices, meanwhile, seemed to have trouble discerning the intent of the compact that Congress ratified in 1980.

The case, Tarrant Regional Water District v. Herrmann, is being closely watched by other states because it could call into question the country's more than 25 water compacts. Until now, no state has ever tried to use a compact to access water across state lines.

Justice Ruth Bader Ginsburg said the Texas utility is relying on vague language. In other areas of the compact, she said, the "provision is much clearer, more much definite" when it comes to states having access to water across their border.

This section, she said, is "kind of sketchy."

The Red River flows from New Mexico across the Oklahoma-Texas line and then into Arkansas and through Louisiana.

Texas wants to take 130 billion gallons of water in the southeast corner of Oklahoma, where the Kiamichi River meets the Red River. Texas officials claim the compact gives them "equal rights" to a quarter of the water.

But Justice Stephen Breyer took issue with that interpretation.

"It doesn't say that," he said. The compact, he went on, says "no state is entitled to more than 25 percent."

Further, the compact provides "no mechanism" for how water should be taken out of a neighboring state, Breyer added. It would create an "enormous administrative mess," he said, to sort out how much of Oklahoma's water it may tap into.

Charles Rothfeld, representing the Tarrant Regional Water District, contended, "All it says is you can't take more than 25 percent." It does not, he added, say what Texas should do if it cannot get to 25 percent.

Both liberal and conservative justices appeared to struggle with procedural aspects of how Texas could take water out of Oklahoma. Justice Samuel Alito suggested that what Texas wanted to do was seize Oklahoma's property through eminent domain.

Others, including Chief Justice John Roberts and Justice Elena Kagan, asked whether Oklahoma's water board would have to give Texas priority over Oklahomans when considering permit applications because of the compact.

And Justice Anthony Kennedy asked whether Texas has to go onto Oklahoma's property to get to the water.

Lisa Blatt, representing Oklahoma, said that there is, in fact, an area of the river along the border and within the same sub-basin where Texas already pulls water.

"It can, and it does," Blatt said.

Texas desperately needs the water to deal with its rapidly growing Dallas-Fort Worth metroplex, which is home to 6.5 million residents. Oklahoma has a population of fewer than 4 million in all.

Oklahoma contends that the compact protects its right to allocate its resources. The state Legislature passed measures that created a moratorium on out-of-state water transfers and, when that expired, passed measures that effectively prohibit transfers beyond its boundaries.

The issue has become politically charged and reflects the deep rivalry between the states (Greenwire, March 12). Texas had been close to buying water from Oklahoma about a decade ago, but Oklahoma officials pulled the plug on the deal facing public backlash.

Courts have so far sided with Oklahoma. The Denver-based 10th U.S. Circuit Court of Appeals ruled in September 2011 that the compact gives states considerable discretion to control their water, including enacting state laws (Greenwire, Sept. 8, 2011).

The Obama administration has sided with Texas, largely because of the unique water challenges facing the metroplex.

But Kagan took issue with how the administration interpreted the compact.

The government's brief, she said, "gives you kind of a headache."

Roberts was one of the few justices who appeared to throw Texas a lifeline. He questioned Oklahoma's claims of state sovereignty, arguing that the compact is, by its definition, an interstate agreement in which states "give a little here and a little there."

"I don't know why state sovereignty applies," he said.

Blatt maintained, however, that because there has been no accounting of exactly how much water is available, Texas would have a hard time proving there isn't 25 percent within its borders.

"If we lost this case," she said, "Texas would be in a pickle to show they can't get their 25 percent."