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Star-Telegram.com

Fight for Oklahoma water goes to Supreme Court

Posted Thursday, Jan. 19, 2012

By Bill Hanna

billhanna@star-telegram.com

The quest to get water from Oklahoma for North Texas isn't over.

In the latest twist to its five-year legal battle against Oklahoma, the Tarrant Regional Water District filed a writ Thursday with the U.S. Supreme Court asking the justices to hear its five-year-old lawsuit against Oklahoma. There are no guarantees the Supreme Court will hear the case but the water district still believes its case is sound despite recent legal setbacks.

"We have a responsibility to our constituencies in North Central Texas to pursue every opportunity to increase our water supply to meet future demands," said water district manager Jim Oliver in a prepared statement. "The filing today makes certain our legal options remain open but does not change our preference to negotiate an agreement, rather than litigate."

The water district sued Oklahoma in January 2007 to capture water from three river basins in south-central and southeastern Oklahoma. It wanted to divert more than 130 billion gallons of water from river basins just north of the Red River.

At the same time, the district sued the Oklahoma Water Resources Board and the Oklahoma Water Conservation Storage Commission to keep its permit applications from being dismissed while the matter was in court.

In July 2010, an Oklahoma federal judge dismissed the lawsuit, and the district appealed the case to the 10th Circuit. During the litigation, Oklahoma legislators passed a bill in 2009 to clarify that water was not available to other states without approval from the Oklahoma Legislature.

A three-judge panel in September, 2011, upheld a lower court ruling dismissing the 2007 lawsuit. That was followed in October by the 10th Circuit denying a request for rehearing before the full court.

Negotiated sale

North Texas officials have also held out hope of hammering out a negotiated sale with Oklahoma.

But this week, two Oklahoma legislators announced plans to file legislation that would allow Oklahoma citizens a chance to approve or reject an out-of-state water sale.

One of the key issues in the lawsuit has interpreting the little-known Red River Compact.

The compact -- which includes Texas, Oklahoma, Arkansas and Louisiana -- gives states the right to discriminate against interstate commerce rules since all states entered into the agreement and it was approved by Congress. But the water district had argued that Texas has a right to a portion of the water that flows into the Red River since the compact gives each state an apportioned share.

In September, the 10th Circuit's three-judge panel said that "we hold that the Red River Compact insulates Oklahoma water statutes" from a legal challenge.

Public vote

The latest round comes as two opponents of any water sale by Oklahoma to Texas announced plans to file legislation requiring a public vote of any out-of-state water sale.

State Sen. Jerry Ellis, D-Valliant, and state Rep. Eric Proctor, D-Tulsa, plan to co-sponsor "The People's Water Act," which would give the people of Oklahoma the right to approve any water deals made with other states.

It is already law in Oklahoma that the Legislature must approve all out-of-state water agreements but the proposed legislation would also mandate that voters have a say on any sale.

"The decision will impact every generation of Oklahomans who follows after us," Ellis said on Tuesday. "The water belongs to the people of Oklahoma, not to any high-paid corporate lobbyist or to any Legislature. The future of Oklahoma water should not be bargained away in backroom meetings between politicians and Texans or in midnight sessions of the Legislature."

Ellis, whose district includes the water-rich southeastern Oklahoma, has been an outspoken critic of water sales to Texas.

But North Texans see it differently.

"The overwhelming evidence shows Oklahoma has excess water it could sell to fund the more than $81 billion in water infrastructure needs outlined by the Oklahoma Water Resources Board," Oliver said.

Bill Hanna, 817-390-7698

Twitter: @fwhanna

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