By Chris Casteel Modified: June 13, 2013 at 10:19 pm • Published: June 13, 2013
WASHINGTON — Oklahoma won a major victory Thursday in defense of the state’s water supply, as the U.S. Supreme Court ruled unanimously that Texas can’t reach across the border to claim a share of the Kiamichi River.
Oklahoma Attorney General Scott Pruitt said the decision protected Oklahoma’s right to manage its water for generations to come, though the state is still in negotiations with the Chickasaw and Choctaw tribes about water rights in southeastern Oklahoma.
The high court’s decision ended a six-year legal battle with the Tarrant Regional Water District, a Texas state agency that claimed a water compact among Texas, Oklahoma, Arkansas and Louisiana gave Texas the right to reach into Oklahoma to get its share of allotted water.
The Red River Compact — approved by Congress in 1980 — gives each of the four states an equal share of excess water from the Kiamichi River. But the compact doesn’t explicitly say whether one state can cross a border without permission to get its share.
The Supreme Court on Thursday agreed with Oklahoma’s position — which was supported in the case by Arkansas and Louisiana — that the compact would have spelled out the terms if cross-border access was permitted.
“Many compacts feature unambiguous language permitting signatory States to cross each other’s borders to fulfill obligations under the compacts, and many provide for the terms and mechanics of how such relationships will operate,” the opinion written by Justice Sonia Sotomayor says.
“The absence of comparable provisions in the Red River Compact strongly suggests that cross-border rights were never intended to be part of the agreement.”
Moreover, the court held that states rarely relinquish their sovereign powers. If Oklahoma had intended to give up its rights to the water within its borders, there would have been a clear indication in the compact, “not inscrutable silence,” the court held.
The court also noted that the Texas agency waited a long time after the compact’s approval to claim the right to get water in Oklahoma.
“Once the Compact was approved in 1980, no signatory State pressed for a cross-border diversion until Tarrant filed suit in 2007,” the court opinion states.
“And Tarrant’s earlier offer to purchase water from Oklahoma was a strange decision if Tarrant believed the Compact entitled it to demand water without payment.”
The Supreme Court also held Thursday that Oklahoma’s laws allocating water — and essentially barring out-of-state sales — do not violate the Commerce Clause of the U.S. Constitution.
The Texas agency pursued the case to the U.S. Supreme Court after losing in federal district court and the U.S. 10th Circuit Court of Appeals.
Pruitt, whose office represented the state, said the decision “affirmed Oklahoma sovereignty over our water.
“It’s important that we in the state of Oklahoma have the ability to manage our water and not be forced to give water to Texas and that’s what Tarrant County sought. It will impact generations to come, and the flexibility and latitude that Oklahoma needs to manage its water resources has been confirmed by the U.S. Supreme Court.”
Jim Oliver, general manager of the Tarrant Regional Water District, said Thursday, “Obviously, we are disappointed with the Supreme Court’s decision.
“Securing additional water resources is essential to North Texas’ continued growth and prosperity and will remain one of our top priorities. … The decision does not address the problem of Oklahoma’s lack of water infrastructure, and we believe solutions that benefit both Texas and Oklahoma still exist.”
Oklahoma City’s city manager Jim Couch hailed the decision. In a brief filed in the case, Oklahoma City argued that southeastern Oklahoma water is a critical component of the city’s municipal water supply.
Oklahoma City has long-standing permits for water from the Kiamichi and Muddy Boggy rivers. The water is pumped from southeast Oklahoma through the 50-year-old Atoka pipeline. An application for more water from the Kiamichi would provide nearly enough to meet city needs for 2060, as projected in a 2009 study. That application is tied up in the lawsuit by the tribes.
Red River rivalries
The Supreme Court last year refused to wade into a separate water dispute in Oklahoma, effectively upholding an appeals court ruling that the Oklahoma town of Hugo couldn’t sell water to Irving, Texas, without the state’s permission.
The U.S. Justice Department urged the high court to take the Texas challenge and sided with the Tarrant district on the key point of whether Texas could cross the border to fulfill its share under the compact.
The high court’s opinion Thursday gave a brief history of Red River rivalries between Oklahoma and Texas, mentioning “the famed college football rivalry between the Longhorns of Texas and the Sooners of Oklahoma” and the mobilization of state militias during the Red River Bridge War in 1931.