The Enid News and Eagle, Enid, OK

April 22, 2013

U.S. Supreme Court to hear Okla. water rights appeal

By Tim Talley
Associated Press

OKLAHOMA CITY — A water rights dispute between Oklahoma and Texas will go before the U.S. Supreme Court this week, a case officials say could clear up confusion about the right of one state to claim part of a shared waterway that flows through a neighboring state.

The Tarrant Regional Water District, which serves an 11-county area in north central Texas including Fort Worth, Arlington and surrounding areas, wants to purchase more than 460,000 acre-feet of water — about 150 billion gallons — from southeastern Oklahoma tributaries of the Red River that separates Oklahoma and Texas.

District officials maintain that Oklahoma has more than 10 times the water it needs to meet its own needs and the district wants only about 6 percent of water flowing into the Red River — water that eventually flows into the Gulf of Mexico. They say drawing water directly from the river is not financially feasible because of salinity issues.  

But the water district’s plans have been blocked by Oklahoma laws that govern the use of water within its borders, including a moratorium on out-of-state water sales.

Attorney General Scott Pruitt has said his office will fight “to protect its natural resources.” But an attorney for the water district, Tim Bishop, said he is optimistic about the case. Oral arguments are scheduled Tuesday.

Bishop said the water district has the support of the Office of the Solicitor General, which represents the U.S. Justice Department before the Supreme Court.

“We think our arguments have considerable support,” Bishop said.

The water district filed a federal lawsuit in 2007 against the Oklahoma Water Resources Board and the Oklahoma Water Conservation Storage Commission that challenges the state’s water laws and seeks an injunction to prevent the board from enforcing them. The Texas water district claims the statutes pose a burden to interstate commerce.

A federal judge dismissed the lawsuit in July 2010, a decision that was upheld by the 10th U.S. Circuit Court of Appeal last year. It found that the Red River Compact, which governs the use of water in the basin that includes Oklahoma, Texas, Arkansas and Louisiana, protects Oklahoma’s water statutes from the legal challenge.

Attorneys for Oklahoma have argued that the water issue should be decided by the Red River Compact Commission, which was created by Congress in 1980 to apportion water that flows along the Red River and its tributaries, including Cache Creek, Beaver Creek and the Kiamichi River.

Legislation adopted by the Oklahoma Legislature in 2009 said no out-of-state water permit can prevent Oklahoma from meeting its obligations under compacts with other states. It also requires the Water Resources Board to consider in-state water shortages or needs when considering applications for out-of-state water sales.