WASHINGTON — A Texas water agency is claiming an “unprecedented” right to take water from Oklahoma, but a decades-old agreement prohibits the diversion, an attorney for Oklahoma told U.S. Supreme Court justices here Tuesday.
Washington attorney Lisa Blatt, who is representing Oklahoma in the dispute, said no water agreement among states has ever allowed one state to reach into another without explicit provisions that spell out all of the conditions.
The attorney for the Tarrant Regional Water District, which supplies water to residents in north central Texas, told the justices that Oklahoma had agreed in the Red River Compact that Texas has a right to certain water in Oklahoma.
“Oklahoma is now trying to back out of that bargain,” Charles A. Rothfeld said.
The Supreme Court is expected to decide sometime this summer whether Oklahoma or the Texas agency is right in a lawsuit dating to 2007, and the decision likely will hinge on how justices read a provision in the compact that divides excess water from the Kiamichi River in Oklahoma.
The provision gives the four states that signed the compact — Oklahoma, Texas, Arkansas and Louisiana — equal rights to the excess water and caps the shares at 25 percent.
However, it doesn't specifically say whether one state can cross a border to get its share.
A federal district court and the 10th U.S. Circuit Court of Appeals has agreed with Oklahoma in the case that Texas can't cross the border to get its share.
The Tarrant water district says the allocation of water in the provision isn't based on state boundaries; rather, Rothfeld told the justices on Tuesday, the water at issue is “a common pool of water” defined by dam sites.
Justice Ruth Bader Ginsburg told Rothfeld that other water compacts clearly express when a state can cross into another to get water.
“This clause, the one that you rely on, is kind of sketchy, isn't it?” Ginsburg asked Rothfeld. “Doesn't say how they're going to get it, if they're going to pay for it. There's a lot to be filled in.”
Rothfeld replied that the provision was “quite clear” in allowing all four states equal access to the water.
Justices seemed at times perplexed and ultimately worn out by the vagaries of the Red River Compact, which divides the basin into “reaches” and “sub-basins” and allots water among the states in various ways — sometimes with specific reference to state boundaries and sometimes not.
The justices looked at maps and read through various parts of the Red River Compact — which was approved by Congress in 1980 — and sometimes based their questions on parts of the compact that aren't in dispute.
Chief Justice John Roberts challenged Oklahoma's position that its state sovereignty would somehow be violated if Texas took water from within its boundaries.
“Compacts compromise the individual state sovereignty,” Roberts told Blatt, Oklahoma's attorney. “That's the whole point of them.”
Some justices also expressed interest in what would happen if Oklahoma had to give permits to Texas applicants — that is, how they would be prioritized.
Rothfeld said Texas applicants would just go through the same process that Oklahoma ones do now, while Blatt noted that Oklahoma's system allows priority to the first users.
“There are four Texas entities that have signed up for permits. … And poor Oklahoma City got sandwiched in the middle,” Blatt said.
The Obama administration agrees with the Tarrant water district on the key point of whether Texas can get its share of the excess water from Oklahoma, and the administration says Oklahoma's laws barring the export of water out of state violate the compact.
However, it diverges with Texas on another key point — whether Texas must first get its share from within its own borders before going into Oklahoma.
The Tarrant district argues that it can get all of its share from Oklahoma, despite what exists in Texas.
“Under our theory … if Texas was already receiving 25 percent of the water, then Oklahoma would not have to give it any kind of special priority,” Justice Department attorney Ann O'Connell told the justices on Tuesday.
Oklahoma Attorney General Scott Pruitt sat with the other Oklahoma attorneys in the courtroom on Tuesday and said afterward that “it's always difficult to know where a court is headed by the questions they ask.”
Pruitt said he was encouraged by justices' interest in the lack of explicit language allowing Texas to cross the border for water.
Oklahoma would never have granted that permission, Pruitt said, without including the mechanics involved, such as the diversion point of the water and how property could be taken by eminent domain.
Rothfeld, the attorney for the Texas agency, also said he couldn't read the justices' minds from the arguments.
He said some of the questions regarding how Oklahoma would process applications from Texas reflected the court's lack of exposure to water compact cases.
Rothfeld said it would be difficult for the court to dispose of the case without deciding whether the compact allows Texas to get its share of water in Oklahoma.
“Can Oklahoma categorically exclude Texas users from getting their water in Oklahoma?” Rothfeld said. “I think they do have to answer that question.”