Texas Water
5:24 pm
Thu June 13, 2013

Supreme Court rules against Tarrant in water case

The Supreme Court ruled today in favor of Oklahoma and against a Texas water district wanting to purchase water from Oklahoma. The justices ruled that the Red River Compact "creates no cross-border rights in Texas."

A Supreme Court ruling means that Texas water districts will have to give up on buying water from Oklahoma. (Mark Haslett/KETR)

Audio transcript

Haslett: The last shutout in college football’s Red River Rivalry occurred in 2004, when the University of Oklahoma defeated the University of Texas 12-0. This morning, the U.S. Supreme Court dealt Texas a shutout loss in a different kind of Red River contest. The nation’s high court ruled unanimously in favor of Oklahoma in a dispute with Texas over the terms of the Red River Compact, which governs water use along the large Red River basin.

The plaintiff and the Texas party in the case was the Tarrant Regional Water District, which serves Fort Worth and an 11-county area in North Texas. The district hoped to access water from southeastern Oklahoma tributaries of the Red River. It argued that the Red River Compact gave it the right to do so. The Compact - a long-standing interstate agreement between Texas, Oklahoma, Arkansas and Louisiana – says that each state is entitled to as much as 25 percent of any water that exists in addition to a certain minimum standard of river flow.

Tarrant District general manager Jim Oliver said that Texas could only get about 17 percent of what’s described as “surplus water.” That’s because along a large stretch of the basin, the water’s mainly in Oklahoma. The Tarrant district isn’t the only Texas utility to notice the situation. The Upper Trinity Regional Water District, which serves Denton County, filed a friend of the court brief describing support for Tarrant in the case. Upper Trinity executive director Tom Taylor agrees with Tarrant’s assessment of that part of the river.

Taylor: Almost all of the watershed  - that is, where the rain falls and then runs into the river - almost all of it's in Oklahoma. On the Texas side, it's kind of like a bluff. But the river itself is all in Oklahoma. So Oklahoma owns the south side of the river up to the vegetation line. You've got to cross into Oklahoma to even stick your toe in the water. 

Haslett: And even in those areas where the Red River is more accessible, its salinity makes it less attractive than tributaries on the Oklahoma side with lower salt. The obstacle to Tarrant’s plan was an Oklahoma state law that basically prohibits out-of-state transfers of water. Legislators in Oklahoma saw a menacing dynamic: Thirsty Dallas-Fort Worth, right next to Southeast Oklahoma, a rural area without much money but plenty of water.

Many in Texas say the Oklahoma ban violates the U.S. Constitution’s interstate commerce clause as well as the Red River Compact. But when the Tenth Circuit Court of Appeals disagreed in 2011, Tarrant took its case to the Supreme Court. The result was today’s unanimous verdict, delivered by justice Sonia Sotomayor, who said the court based its opinion in part on the principle that, in general, states don’t give up their sovereignty without explicitly saying so. The Red River Compact makes no mention of appropriations across state lines. Sotomayor wrote that comparable water agreements between other states specifically mention any cross-border transfers allowed to occur. The Red River Compact is silent on that topic and instead only describes what states may do within their jurisdictions, the court said. Neither the Tarrant water district nor the Oklahoma Water Resources Board would provide an interview for this story, but they both issued statements following the decision.

The Oklahoma Water Resources Board pointed out that Arkansas and Louisiana sided with Oklahoma, as did seven mostly arid western states, where interstate compacts governing shared river basins are common. The Tarrant Regional Water District mentioned that population in its service area is expected to double over the next fifty years and that new sources for water will be needed. Tarrant had hoped, as did Upper Trinity and other Texas water districts, that DFW’s water need and Southeast Oklahoma’s economic need would be a good match.

Taylor: It's kind of a low economic condition corner of the state and the water is one of their best resources. And the proposal was at that time that the revenue from that water would go to benefit those people in that part of the state. So we would get some needed water and they would get some needed revenue, was the idea.

Haslett: But that option is now off the table. To satisfy future water needs, Texas will have to look to itself. For KETR news, I’m Mark Haslett.

Here's a PDF of the ruling.