WASHINGTON — The long-running fight between Oklahoma and Texas over water will be aired Tuesday before U.S. Supreme Court justices, who could end the contentious case or set it on a new course that could lead to more protracted battles.
The justices' decision may hinge on a missing phrase in the compact that has apportioned water rights in the Red River basin to four states for more than 30 years. Many pages of briefs in the case are devoted to whether Texas can reach into Oklahoma to get water because there's no clause in the compact that specifically prohibits Texas from doing so.
Also at issue is whether a set of Oklahoma policies effectively and improperly prevent interstate water exports.
The case before the high court was brought by the Tarrant Regional Water District, a Texas agency that provides water to more than 6 million residents of North Texas and says it desperately needs more water to supply the growing population.
The agency claims Texas is entitled to water that can only be obtained in Oklahoma, and it argues that the compact implicitly allows for the water to be taken from Oklahoma.
Oklahoma and the other two states that are part of the Red River Compact — Arkansas and Louisiana — say the compact doesn't entitle Texas to take water within Oklahoma's boundaries.
Seven other states have filed a brief taking Oklahoma's side in the case, as have the Chickasaw and Choctaw nations; a group of law professors with expertise in water law also are backing Oklahoma.
The Tarrant Regional Water District is being supported by the solicitor general, the arm of the U.S. Justice Department that represents the government before the Supreme Court.
Though the specific arguments in the case are complex and arcane, the stakes are high. Oklahoma and Texas have been suffering from a prolonged drought; and even if they weren't, it would be a touchy issue.
“They say liquor is for drinking, and water is for fighting,” Oklahoma Farm Bureau President Mike Spradling said here last week in discussing the case.
Oklahoma and the Texas water agency have hired Washington attorneys with extensive experience before the high court.
In fact, the opposing attorneys in the water case argued against each other in the Supreme Court last week in another Oklahoma-related case, one involving the adoption of a Cherokee girl.
A decision in the water case is expected before the court's term ends in June.
Red River Compact
The Red River Compact — negotiated over many years and approved by Congress in 1980 after all four states had signed it — divides the Red River basin into various regions. The region at the core of the Oklahoma-Texas dispute includes the southeastern part of Oklahoma where the Kiamichi River flows into the Red River.
Under the compact, all four states have equal rights to excess water in the particular region when the flow of water exceeds a certain amount, though no state can take more than 25 percent. The section of the compact allowing for that division does not address whether Texas can get the water from Oklahoma, where much of the water is located.
The Tarrant Regional Water District contends that, because that section of the compact doesn't address state boundaries, Texas can get its 25 percent from Oklahoma. And it says that the compact, which is federal law, prevents Oklahoma from enforcing policies that block permits for interstate water exports.
The 10th U.S. Circuit Court of Appeals upheld Oklahoma's regulations and ruled the compact allowed states to use their share of the excess water only within their boundaries.
The Texas agency appealed to the Supreme Court, arguing that the appeals court decision makes no sense since none of the water is in Louisiana, meaning that state couldn't get its 25 percent within its own boundaries.
Attorney Timothy S. Bishop, who is representing the Texas agency, said he thinks the justices will be interested in the language of the compact and “the practicalities in how this would work ... and what role Oklahoma would have” if Texas were allowed to get water from Oklahoma.
The Justice Department, which also will get some time to argue to the justices on Tuesday, agrees with the Tarrant district regarding the language in the compact and says allowing state laws to prohibit a state from getting its 25 percent would thwart the guarantee of equal rights to use the excess water.
Still, the department foresees many factual and legal questions that would have to be answered if the Supreme Court agrees with the Texas district.
States might have to develop some way to account for the flow of water at various times, and Texas might have to show that it can't currently get its share of the excess water within its boundaries, the Justice Department says, though the water district claims it can get its share from Oklahoma no matter how much is already in Texas.
Moreover, the Justice Department says, division of the excess water will have to account for the water that might be controlled by the Choctaw and Chickasaw nations, which are currently suing Oklahoma over water rights.
The two tribes have filed a brief in the case backing Oklahoma, noting that their own economic development plans depend on the water.
Oklahoma contends that the compact is silent on whether states can cross borders to get their share of the excess water in the region because it wasn't necessary to repeat “incessantly” throughout the agreement a concept that should have been obvious — states only had access to the water within their boundaries unless the compact specifically stated otherwise.
“No interstate water compact allows one State to divert water from another State absent express language authorizing cross-border diversions,” Oklahoma argues.
That is a position supported by a group of law professors from across the country who have studied water compacts.
“When States enter into compacts whereby one State permits another to cross its border for the purpose of diverting or storing water found there, they convey that authority clearly, not by implication,” the professors told the court in a brief, adding that such agreements typically include details about how a state would capture and transport the water.
Louisiana and Arkansas say the Texas agency's position departs from more than three decades of living under the compact and would undermine the states' “bargained-for understanding that the Red River Compact safeguarded the States' ability to protect their public trust resources in any manner deemed beneficial.”
The two states say the compact protects them from “intrusions from Texas and its political subdivisions whenever the Lone Star State's whims for more water are not satiated.”