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.