Tarrant district loses water fight with Oklahoma at Supreme Court

Posted Thursday, Jun. 13, 2013  comments  Print Reprints
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The U.S. Supreme Court on Thursday blocked the Tarrant Regional Water District’s efforts to divert 150 billion gallons of water a year from several Oklahoma river basins and pipe it to a thirsty North Texas.

In a unanimous decision written by Justice Sonia Sotomayor, the court ruled that the Red River Compact signed by Texas, Oklahoma and two other states does not pre-empt statutes passed by Oklahoma lawmakers blocking the sale of the water.

The water district sued Oklahoma in January 2007 seeking to divert the water, claiming that blocking out-of-state water sales violated the terms of the compact and interstate commerce laws.

Sotomayor, however, quoted case law that said “states possess an absolute right to all their navigable waters and the soils under them for their own common use.”

In writing for the court, Sotomayor went on to say: “We hold that Tarrant’s claims lack merit.”

Jim Oliver, general manager of the Tarrant Regional Water District, said that he is disappointed with the decision and that the district will look at other options to provide water for the region.

Had the district been allowed to capture the Oklahoma water, he said, it would have boosted water capacity into the next century. Now, based on projected population growth, he estimates that the district has an adequate supply until about 2040.

“Obviously, we are disappointed with the Supreme Court’s decision. Securing additional water resources is essential to North Texas’ continued growth and prosperity and will remain one of our top priorities,” Oliver said, adding that the district spent about $6 million fighting the case in court.

Oklahoma Attorney General E. Scott Pruitt called the ruling a “major victory.”

“We successfully defended Oklahoma’s right to protect its natural resources at the district court, circuit court of appeals and now the Supreme Court,” which confirmed Oklahoma’s sovereignty over its water resources, Pruitt said.

“This unanimous decision will affect all western states governed by multistate water compacts, and will protect Oklahoma’s ability to control this vital resource for generations to come.”

The district wanted to capture water from three river basins — the Cache, Beaver and Kiamichi — before the water enters the Red River and takes on too much salt. The district wanted to pump the water under the river and into one of its reservoirs.

The district, which serves an 11-county area that includes Fort Worth, Arlington and Mansfield, said it needs the water because of population grow.

The Supreme Court decision notes that the Dallas-Fort Worth metropolitan area grew from 5.1 million residents in 2000 to almost 6.4 million in 2010, a jump of about 25 percent. North Texas’ need for the water has “been exacerbated in recent years by a long and costly drought,” according to the court’s opinion.

From 2000 to 2002, the Tarrant water district, and others in Texas, offered to buy water from Oklahoma, but the negotiations failed.

In 2007, the district sought a water resources permit from the Oklahoma Water Resources Board. Anticipating that those permits would be rejected, it filed a lawsuit in federal court at the same time saying that blocking the out-of-state water sales would violate interstate commerce laws.

After the water district sued Oklahoma, other water providers including Dallas and the North Texas Municipal Water District, which supplies water to some Dallas suburbs, joined the suit.

Red River Compact

The case revolved around the Red River Compact, which says each state gets an “equitable apportionment of water” from the Red River and its tributaries. Texas, Oklahoma, Arkansas and Louisiana signed the compact, which was approved by Congress in 1980.

The water district contended that the Oklahoma Legislature violated it by passing a 2009 bill requiring that the legislative body approve any transfer of Oklahoma water to other states.

The district also has said that more than 18 metropolitan areas nationwide rely on water supplies governed by interstate compacts, including Los Angeles, San Diego and Sacramento, Calif., Denver, Atlanta, Phoenix, Tucson, Las Vegas and Salt Lake City.

In July 2010, an Oklahoma federal judge dismissed the suit, and the district appealed the case to the 10th U.S. Circuit Court of Appeals. In September 2011, a three-judge panel upheld the lower court's dismissal, and in October 2011 the 10th Circuit denied a request for rehearing.

The U.S. solicitor general, however, eventually agreed with the district’s arguments in recommending the case to the court for review.

But Sotomayor rejected those arguments. She wrote that the water district’s reading of the Red River Compact would “necessarily entail assuming that Oklahoma and three other states silently surrendered substantial control over their waters when they agreed to the compact.”

“We find this unlikely to have been the intent of the Compact’s signatories,” Sotomayor wrote. “States rarely relinquish their sovereign powers, so when they do we would expect a clear indication of such devolution, not inscrutable silence.”

Oliver said the district will continue to work with Oklahoma to see whether a deal can be struck for the purchase of water. “We’re still going to try to continue discussions with Oklahoma to see if some kind compromise can be reached, but I’m not going to bet the farm on it,” he said.

It also makes other projects the district is involved in even more important.

The Tarrant water district is also working with Dallas Water Utilities on a $2.3 billion pipeline to bring more water from East Texas reservoirs. The first phase, to Cedar Creek Lake, is scheduled to start construction in 2014 but isn’t expected to be completed until 2021.

“It’s even more important that we get that pipeline finished,” Oliver said.

Also on the drawing board is the building of two reservoirs — Marvin Nichols in Northeast Texas and Toledo Bend on the Texas-Louisiana line. Those projects were not expected to come online until the end of the 21st Century, now it 2030 or 2040, he said.

“The population in our service area is expected to double over the next 50 years, so we will act quickly to develop new sources,” Oliver said.

Max B. Baker, 817-390-7714

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