, Muskogee, OK

June 13, 2013

Supreme Court settles water fight

State does not have to sell water to Texas

By D.E. Smoot

— A unanimous Supreme Court sided with Oklahoma in a six-year feud over water rights with a north-central Texas entity that wanted to tap the state’s water resources.

Justice Sonya Sotomayor delivered the court’s unanimous opinion, stating Oklahoma laws restricting out-of-state water sales violates neither the U.S. Constitution nor an interstate water compact. Sotomayor, in her opinion, states both of Tarrant Regional Water District’s “claims lack merit.”

The claims alleged by the north-central Texas water district were raised in 2007, when it filed a lawsuit against the Oklahoma Water Resources Board. Tarrant Regional filed the lawsuit in anticipation its application for a permit to draw water from the Kiamichi River, a tributary of the Red River north of the state line, would be denied.

Lawyers representing the Texas water district argued Oklahoma laws “effectively prevent out-of-state applicants from taking or diverting water from within Oklahoma’s borders.” Those laws, the water district maintained, violate the Red River Compact — an interstate agreement that apportions water rights among Oklahoma, Texas, Arkansas and Louisiana — and the Commerce Clause of the U.S. Constitution.

An Oklahoma Attorney General’s Office opinion interpreting those laws concluded it was unrealistic to consider “an out-of-state user ... a proper permit applicant.” The conclusion was based upon a finding that there was “no intention to create a possibility that such a valuable resource as water may become bound, without compensation, to use by an out-of-state user.”

Lower courts, including the 10th Circuit Court of Appeals, adopted Oklahoma’s position in the six-year water war. The Denver-based appellate court found the Red River Compact protects Oklahoma’s water laws from Tarrant Regional’s legal challenge.

Ed Fite, an Oklahoma Water Resources Board member who described the ruling as “good news,” said the board never had an opportunity to even consider Tarrant Regional’s application before it filed the lawsuit. Fite said a ruling in favor of the Texas water district “would have undermined all the respective water compacts that have been negotiated by other states.”

Jim Oliver, who oversees the water district that serves 11 north-central Texas counties that envelop a rapidly growing area that includes Fort Worth and Arlington, expressed dissatisfaction with the decision.

“Obviously we are disappointed with the Supreme Court’s decision,” Jim Oliver said. “Securing additional water resources is essential to North Texas’ continued growth and prosperity and will remain one of our top priorities.”

J.D. Strong, who serves OWRB as its executive director, described Thursday’s ruling as “vindication for Oklahoma and the two neighboring Red River Compact states who joined with us to hold Texas accountable to the promises and provisions of our 33-year-old Compact agreement.”

“It’s also a victory for the seven mostly arid western states who sided with Oklahoma and stood to lose at least as much control over their limited surface water supplies,” Strong said in a statement published on OWRB’s website. “Most importantly, though, this decision is a resounding victory for the citizens of Oklahoma and our ability to manage their water for their benefit.”

U.S. Rep. Markwayne Mullin, who represents the sprawling 2nd Congressional District where the water battle originated, hailed the court’s decision as “great news.”

“Oklahoma’s water should be kept in Oklahoma for our economic development, agricultural uses and recreation,” Mullin said in a media release. “Given the drought we have experienced, we must protect our water supply.”

Gov. Mary Fallin described the decision as “yet another victory in the effort to protect our state’s water resources.”

Fite, who also serves as director of the Oklahoma Scenic Rivers Commission, said what was disheartening about Tarrant Regional’s lawsuit was the fact that board members were sued without being given an opportunity to consider a permit application.

“It doesn’t need to be one state versus the other three states,” Fite said, referring to the interstate water compact. “If there is a situation that needs to be discussed, then the four states need to work that out together.”

The Associated Press contributed to this article.

Reach D.E. Smoot at (918) 684-2901 or