Supreme Court Rejects Texas’ Claim to Oklahoma Water
(Published by Stateline, June 13, 2013)
By Jake Grovum, Staff Writer
The U.S. Supreme Court Thursday unanimously rejected a Texas water district’s attempt to tap river water in Oklahoma, settling a dispute that raised questions about state sovereignty and natural resources at a time when water is increasingly scarce and fought over.
The ruling found that the Texas authority had no right to the water in question, despite a four-state pact designed to ensure equal access to the water that flows in the Red River. The Tarrant Regional Water District had filed a lawsuit in 2007 saying Texas was entitled to some 130 billion gallons of water on Oklahoma’s side of the river basin.
As Stateline previously reported, the questions at the heart of the case have taken on increasing importance as drought and water shortages have strained water supplies and relations among many western states.
The dispute was seen as a potential test case for states’ rights over natural resources, but it’s likely the effect will be narrow, Marguerite Chapman, a law professor at The University of Tulsa, said.
“I think it affirms the integrity of an interstate compact as essentially a contract,” she said. “I don’t think it will disturb other compacts…the far-reaching effect would essentially be affirming the language that’s in the contract.”
The case centered on the Red River Compact that was signed by Texas, Oklahoma, Arkansas and Louisiana and approved by Congress in 1980.
The compact grants the states “equal rights to the use and runoff” of undesignated, or unallocated, water that flows in the sub-basin where the Tarrant district is staking its claim — but only if flows to Louisiana and Arkansas reach a certain threshold.
“No state is entitled to more than 25 percent of the water,” the pact says.
The compact has been in place for decades, but Oklahoma lawmakers enacted a moratorium on cross-state transfers in 2002. When the original moratorium expired in 2009, the Oklahoma legislature overhauled the state’s permitting process to effectively exclude out-of-state applicants for water.
But even before then, Texas cried foul, with the Tarrant lawsuit originally filed in 2007. The district argued that the agreement gave it license to take 25 percent of the water, no matter which side of the border it comes from.
For Texas, the issue was significant, as demand has grown in and around the Tarrant district compared to sparsely populated southeast Oklahoma. The Tarrant water district projects it needs an extra 150 billion gallons of water per year.
But the pact makes no mention — in either allowing or barring — such cross-border transfers. Oklahoma argued that the compact gave Texas no right to its water, and that its law prohibited the transfer.
The Supreme Court agreed, upholding a lower court ruling in saying that the compact “does not pre-empt Oklahoma’s water statutes.”
The court also ruled that Oklahoma’s measure doesn’t violate the U.S. Constitution’s commerce clause, but the effect of that aspect of the ruling could be construed narrowly. Justice Sonia Sotomayor, writing for the court, said the Oklahoma law “cannot discriminate against interstate commerce…because the compact leaves no waters unallocated.”
—Stateline Staff Writer Jim Malewitz contributed to this report.