WASHINGTON — The U.S. Supreme Court on Monday asked the Justice Department to weigh in on the controversy over Oklahoma's refusal to allow water sales to a North Texas water district.
In a case involving the Tarrant Regional Water District and the Oklahoma Water Resources Board, the high court asked the U.S. solicitor general — the administration's advocate before the Supreme Court — to file a legal opinion expressing the views of the U.S. government about Oklahoma laws governing out-of-state water sales.
The Tarrant water district claims the state's highly restrictive laws regarding interstate water sales violate the U.S. Constitution and a congressionally-approved water compact among four states.
After the Justice Department files a brief in the case, the high court will determine whether to grant a full review.
States are at odds
The Tarrant district, which serves an estimated 1.7 million people and needs more water to meet the rapidly growing demand in north central Texas, filed the lawsuit against the Oklahoma Water Resources Board in 2007 but has lost at the federal district court and appeals court levels.
Kevin L. Patrick, an attorney for the Tarrant water district, said Monday the district is pleased the Supreme Court recognized the importance of the case by asking for the U.S. government's views.
“Where states have agreed to share water — as Texas and Oklahoma did in the Red River Compact — it is critical to our federalist system of government and to economic development that the courts enforce the agreement as written and not permit states to renege by passing laws that purport to override the agreement, as Oklahoma has done.”
Diane Clay, a spokeswoman for Oklahoma Attorney General Scott Pruitt, noted that the Texas water district lost its appeal to the 10th U.S. Circuit Court of Appeals and said, “We're confident the Texas planners will not be permitted, under the guise of constitutional claims, to rewrite the Red River Compact to increase Texas' rights.”
Court ruled in Oklahoma's favor
The 10th Circuit Court ruled last year that Oklahoma has wide authority under the Red River Compact to enact laws regarding water in the state that is subject to the agreement.
Though the Texas water district has accused Oklahoma of engaging in economic protectionism, the appeals court said the compact — among Texas, Oklahoma, Arkansas and Louisiana — shielded it from claims that it was unconstitutionally interfering with interstate commerce.
The Tarrant district also claims Oklahoma is defying the plain language of the compact. It says Texas has the right to 25 percent of the water in one of the regions specified in the compact known as Subbasin 5 but that Oklahoma is not allowing access.
The Oklahoma attorney general's office said the compact never intended to allow Texas to reach into Oklahoma for water within its borders.
“Texas bargained for and received virtually all of the significant water originating in Texas,” the Oklahoma attorney general said in a brief to the U.S. Supreme Court. “It is disingenuous at best for Tarrant to now assert the right to take the water from other states in subbasin 5 in addition to all of the water originating in Texas.”
Court didn't hear Hugo appeal
Two weeks ago, the U.S. Supreme Court declined to hear an appeal in a similar case in which the city of Hugo was blocked from selling water to the Texas city of Irving. In that case, without comment, the high court effectively upheld the 10th Circuit Court's decision that Hugo couldn't sue its parent state over the constitutionality of the water laws.