Court nixes TRWD’s plan to pipe water from Oklahoma

By Bob Buckel | Published Saturday, June 15, 2013

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The Tarrant Regional Water District’s six-year quest to build a pipeline into Oklahoma to capture water was shot down Thursday by the U.S. Supreme Court.

The court ruled unanimously in Oklahoma’s favor, upholding an appeals court ruling saying the Texas agency has no right to cross the state line to acquire water – even though it does have a legal right to its share of the water under terms of the Red River Compact, which became federal law in 1980.

Associate Justice Sonia Sotomayor, in writing the opinion, noted that nothing in the Compact specifically grants any of the four states – Texas, Oklahoma, Arkansas and Louisiana – the right to capture water outside their own borders.

“Three things persuade the Court that the Compact did not grant cross-border rights: the well-established principle that States do not easily cede their sovereign powers; the fact that other interstate water compacts have treated cross-border rights explicitly; and the parties’ course of dealing,” the court’s summary said.

TRWD argued that the Compact’s silence could be construed to allow cross-border pipelines. The court went the other direction.

TRWD General Manager Jim Oliver said Thursday the district will regroup.

“Obviously, we are disappointed with the Supreme Court’s decision,” he said. “Securing additional water resources is essential to North Texas’ continued growth and prosperity and will remain one of our top priorities. The population in our service area is expected to double over the next 50 years so we will act quickly to develop new sources.”

Oliver said he believes “solutions that benefit both Texas and Oklahoma still exist” and added, “We will continue to explore and advance those opportunities.”

TRWD had proposed to divert water from the Kiamichi River as it emerges from Hugo Lake, north of Paris, just before it discharges into the Red River and becomes too saline for potable use.

The Supreme Court decision went into some detail regarding the “reaches,” basins and sub-basins into which the entire Red River watershed had been divided under the Compact – which was designed to assure that no state along the river could capture a disproportionate share of the water.

TRWD had first sought to buy water from both the state of Oklahoma and the Choctaw and Chickasaw nations. All those offers were turned down.

Justice Sotomayor noted in her ruling that the Dallas-Fort Worth area’s population had grown from roughly 5.1 million in 2000 to almost 6.4 million in 2010 – a jump of over 23 percent.

“This growth has strained regional water supplies, and North Texas’ need for water has been exacerbated in recent years by a long and costly drought,” she noted.

Still, she wrote, Oklahoma has the right to regulate water within its boundaries.

“The Compact does not expressly pre-empt any state laws that address the control of water,” she wrote. “Oklahoma law, in turn, requires that any ‘state or federal governmental agency’ that ‘intend[s] to acquire the right to the beneficial use of any water’ in Oklahoma must apply to the Oklahoma Water Resources Board for ‘a permit to appropriate’ water before ‘commencing any construction’ or ‘taking [any water] from any constructed works’.”

TRWD filed suit only after their permit request was denied. Oklahoma then fortified state law forbidding the sale of water to another state. TRWD argued that those laws were overruled by federal law under the Red River Compact.

The Court disagreed.

“The Compact creates no cross-border rights in Texas,” Justice Sotomayor wrote. “Tarrant’s remaining arguments do not persuade us otherwise.

“Under the Compact’s terms, water located within Oklahoma’s portion of subbasin 5 of Reach II remains under Oklahoma’s control. Accordingly, Tarrant’s theory that Oklahoma’s water statutes are pre-empted because they prevent Texas from exercising its rights under the Compact must fail for the reason that the Compact does not create any cross-border rights in signatory States.”

The water district manages Lake Bridgeport, Eagle Mountain, Cedar Creek and Richland Chambers reservoirs to supply water to Fort Worth, Arlington and other Tarrant County cities as well as several cities in Wise County including Bridgeport, Decatur and Runaway Bay.

Contested Waters

CONTESTED WATERS – The map shows the Red River and the basins that feed into it from Lake Texoma, north of Sherman, all the way to the Texarkana area. Map taken from U.S. Supreme Court decision Tarrant Regional Water District v. Herrmann Et Al, Appendix A

Big Picture

BIG PICTURE – This map, which was also attached to the Supreme Court decision, shows the entire Red River basin as it drains through all four states. As shown is Tarrant Regional Water District’s service area. Both show the proposed intake structures just north of the Red River.

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