The U.S. Supreme Court Says North Texas Has No Right to Oklahoma's Water

It's no secret that North Texas is lusting after Oklahoma's water. Here we are struggling to quench a thirsty and growing population, while our neighbor to the north hogs its bountiful supply of H2O, which is roughly 10 times its projected need.

The Tarrant Regional Water District made the first move in what has since become a sizeable water rights border war when it arranged to buy 150 billions of gallons per day from the southeastern part of the state to be piped to its customers in North Texas. The Oklahoma legislature responded by passing legislation banning out-of-state water sales, which prompted TRWD to sue.

The water district's argument centered on the Red River Compact, a 1978 agreement between Arkansas, Louisiana, Oklahoma and Texas that established a minimum flow rate in the basins covered by the compact and gave each state the right to take 25-percent of the excess water. TRWD said it could take the water from anywhere in the basin regardless of political boundaries, Oklahoma disagreed, and the case wound up before the Supreme Court.

It's a big issue for the entire region, as the city of Dallas underscored when it submitted a friend-of-the-court brief urging justices to rule on its neighbor's behalf. If neighboring states are allowed to bar Texas from taking water, future supplies, and therefore growth, could be limited.

See also The Supreme Court Will Decide if North Texas Can Take Oklahoma's Water

The Dallas Morning News issued its decision in the case on Tuesday, saying North Texans should be allowed to "gain access to water that is supposed to be theirs under a longstanding agreement.

The justices may be tempted by sovereignty arguments that were used by Oklahoma legislators to sustain a moratorium on the sale or transfer of water from Oklahoma to Texas. Here's the problem with that line of reasoning: Whenever a state enters into a compact, it by definition loses some of its sovereign rights ...

The Tarrant district isn't trying to take Oklahoma's water, as some have attempted to portray the situation. It is simply applying for water that is Texas' under the compact.

The state of Texas is guaranteed 25 percent of the basin in which Tarrant water authorities are seeking a permit. That's the same amount the compact guarantees Oklahoma, Arkansas and Louisiana from the basin. Texas is not trying to seek a special status.

But the Supreme Court, in one of its increasingly rare kumbaya moments, disagreed. The justices voted 9-0 to uphold Oklahoma's decision to bar TRWD from taking water from across the border.

It was a simple decision, really, Justice Sonia Sotomayor suggests in her opinion on behalf of the court. The Red River Compact itself is "ambiguous regarding cross-border rights," so she turns to context to determine the intent of the signers of the compact.

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.

What she's referring to with that last point is TRWD's attempt to purchase water, which "was a strange decision if Tarrant believed the Compact entitled it to demand water without payment."

And so, Texas will have to look elsewhere for water. Surely Arkansas would love to pipe some of its water our way. Maybe Louisiana, too? Best to get started before they wise up and start passing laws against it.

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Eric Nicholson
Contact: Eric Nicholson