THE U.S. Supreme Court will decide whether a federal compact signed in 1980 gives the state of Texas the right to use water that flows out of Oklahoma. The court will weigh the facts of the case. The hyperbole will be left to everyone else — and there will be plenty of it between now and whenever the court issues its ruling.
Most of it will relate to the drought that Oklahoma and much of this part of the country has been experiencing the past two years. Indeed Oklahoma Attorney General Scott Pruitt noted that the Obama administration, in requesting that the high court hear the case, had been “conspicuously silent about the historic drought Oklahoma is suffering, in which 90 percent of the state — including the Kiamichi River region — is under extreme drought conditions.”
Pruitt's visceral argument packs a punch around these parts, where we've seen stock ponds and creeks dry up and lake levels fall steadily. But the state wasn't in severe drought the whole time in which this deal has been pending, and Oklahoma's current drought status isn't relevant to the legal arguments.
What is relevant is the compact among Oklahoma, Texas, Arkansas and Louisiana. The compact apportioned the Red River and its tributaries based on geography and flow rates in the Red River basin's waters. One section of the compact gives the four states equal rights to water runoff in a part of the basin when the flow of the river reaches a certain rate.
The Tarrant Regional Water District says that section of the law gives Texas the right to its 25 percent share even if it has to get the water from Oklahoma. The Justice Department agrees with the water district, arguing that section of the compact doesn't make any reference to state boundaries.
For several years, the water district has been interested in buying water that runs unused out of Oklahoma into the Red River and piping it to the Fort-Worth Arlington area to help that part of Texas continue its growth — growth, we've noted in the past, that benefits businesses and other interests in southern Oklahoma. The Tarrant proposal has been met with stiff opposition in southeastern Oklahoma (although there are some voices there who have tried to strike a deal), and by the Legislature.
The water district sued the state of Oklahoma in 2007. Two years later, lawmakers passed a bill that said the sale of water to any out-of-state interests would have to be approved by the Legislature — essentially ensuring that no such sales will ever be made. Tarrant contends that the bill violates the compact.
The water district has fared poorly in court thus far. In 2010, a federal judge in Oklahoma City dismissed the district's lawsuit. The following year, a three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver upheld the lower court's dismissal. One month later, that court denied a request for rehearing before the full court.
The district may stumble yet again with the Supreme Court, which is expected to hear arguments in April. If Tarrant is unsuccessful, it won't be because Oklahoma is or isn't experiencing a drought. It will be because Texas officials lost in a court of law, not the court of public opinion.