SUPREME COURT:

Justices rule for Okla. over Texas in interstate water war

The Supreme Court ruled today that Texas has no right to Oklahoma's water under a 1980 interstate compact in a case seen as having broad implications in the arid western United States.

Justices unanimously held in Tarrant Regional Water District v. Herrmann that Oklahoma laws effectively limiting the ability of an out-of-state entity to tap its resources are not pre-empted by the Red River Compact.

The district, which provides water to the rapidly growing Fort Worth, Texas, area, argued that the compact, which was ratified by Congress, gave it access to 25 percent of the water in one of the river's subbasins regardless of state lines. The Red River flows from New Mexico across the Oklahoma-Texas line, into Arkansas and through Louisiana.

The case has been closely watched for potential impacts on nearly 30 interstate compacts that govern increasingly precious water resources.

Justice Sonia Sotomayor, writing for the court, said that although the language of the compact is ambiguous, there are three pivotal reasons to conclude that drafters of the compact didn't intend for water withdrawals across state lines.

First, she wrote, states rarely cede their sovereign authority to natural resources.

"Adopting Tarrant's reading would necessarily entail assuming that Oklahoma and three other States silently surrendered substantial control over the water within their borders when they agreed to the Compact," Sotomayor wrote.

Second, other interstate compacts offer clear, unambiguous language for when a state may take water from a neighbor, she wrote.

"Tellingly, many of these compacts provide for the terms and mechanics of how such cross-border relationships will operate, including who can assert such cross-border rights," Sotomayor wrote.

"Put plainly, the end result would be a jurisdictional and administrative quagmire," she added. "The provisions in the other interstate water compacts resolve these complications. The absence of comparable provisions in the Red River Compact strongly suggests that cross border rights were never intended to be part of the States' agreement."

And third, Sotomayor pointed to the history of the compact. Notably, she said, no state has ever tried to use Texas' reasoning to take water from another state before.

Texas was seeking to withdraw about 130 billion gallons of water in Oklahoma's southeast corner, where the Kiamichi River meets the Red River.

The Lone Star State claimed the compact gave it a right to that water in a provision that says as long as enough water is flowing through to Arkansas, each state has "equal rights" to the resource as long as none takes more than 25 percent of the water in excess of the base line.

Texas interpreted that provision to mean that the compact allots 25 percent of the water to each state. The state says that if it took all the Red River water within its borders for that area, it could only get 17 percent.

Texas has been trying to claim that water for more than a decade.

The state is grappling with the booming population of the Dallas-Fort Worth Metroplex. There are currently more than 6.5 million residents in the area, compared with fewer than 4 million in all of Oklahoma. The metroplex is also home to natural gas drilling on the Barnett Shale using hydraulic fracturing, which requires significant amounts of water.

Metroplex officials say north Texas must double its water supply by 2050.

The issue has become politically charged in Oklahoma, and its Legislature has circled its wagons around water by enacting multiple laws that effectively prohibit the transfer of water across state lines.

Jim Oliver, the district's general manager, expressed disappointment with the decision.

"Securing additional water resources is essential to north Texas' continued growth and prosperity and will remain one of our top priorities," he said in an email.

However, he said he sees room for negotiations with Oklahoma.

"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," he said. "We will continue to explore and advance those opportunities."

Oklahoma, however, contends the compact gives it authority to regulate and allocate the water as it sees fit within its borders. The Denver-based 10th U.S. Circuit Court of Appeals agreed, ruling in September 2011 the compact gives states considerable discretion (Greenwire, Sept. 8, 2011).

The Obama administration sided with Texas in the Supreme Court case, largely because of the water challenges facing the Dallas-Fort Worth Metroplex.

At arguments in April, the justices questioned Texas' reading of the statute. Justice Stephen Breyer, like Sotomayor today, noted that tapping another state's water would create an "administrative mess" (Greenwire, April 23).

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