Another water war comes down to court decision

By Tom Baxter

(Note: The U.S. Supreme Court, in a unanimous decision, sided with Oklahoma in a June 13 ruling, agreeing with two lower courts that Texas doesn’t have the right to claim water from the Red River located in Oklahoma.)

Later this month, the U.S. Supreme Court is expected to add to the evolving case law dealing with how states share their increasingly precious water resources.

This time it’s not our water war that the court is concerned with. But how it rules in a long-running dispute between Texas and Oklahoma could affect how ours turns out.

There have been 38 interstate water compacts,  two of which were involved in the water war involving Georgia, Florida and Alabama over how much water Metro Atlanta can draw from Lake Lanier. Both those compacts were allowed to expire, although the issues they sought to address continue. Another is the Red River Compact, agreed to by the states of Texas, Oklahoma, Arkansas and Louisiana in 1980 for the “equitable apportionment among them of the waters of the Red River and its tributaries.”

The way the Tarrant Regional Water District reads the compact, Texas has the right to obtain water from the river where it runs through southeastern Oklahoma. The Tarrant district services Fort Worth and other areas on the western side of the huge Dallas-Fort Worth Metroplex. It needs the water now, and projects it will need it much more in years ahead.

There was a reaction in Oklahoma when Tarrant broached the idea of buying water from the sparsely population corner of its neighboring state several years ago, and in 2002 the Oklahoma legislature imposed a moratorium on out-of-state water transfers. It has since taken more legislative steps to assert its right over the river.
The Tarrant district sued in 2007, claiming the compact gives it a right to the water because it stipulates that states have “equal rights” to the excess water, while no state has the right to more than 25 percent. Texas can only get 17 percent of the excess supply within its own borders, the Texans say. Ergo, they need access to the Oklahoma side to get their due share. Oklahoma says there’s nothing in the compact that gives Texas the right to draw water from a stretch of the river over which it has sovereignty. The Choctaw and Chickasaw nations have also sued, claiming they have water rights to the river in a treaty, and Oklahoma couldn’t sell the water from Texas even if it wanted to.

The stakes are very high for the Texans. Years of drought and a skyrocketing population have brought water issues sharply into focus there. This November, voters will be asked to approve a State Water Plan in which $2.5 billion will be taken from the Rainy Day Fund to finance a bank for water infrastructure projects. But without the water from Oklahoma, Fort Worth, and the state, face a serious hurdle in the decades ahead.
The Supreme Court heard arguments in the Tarrant case in April, and seemed confused  by the intricacies involved.

“You read this brief that you submitted, and it gives you kind of a headache,” Justice Elena Kagen complained to an Obama administration attorney at one point.

That suggests that the court may stay pretty close to the shoreline when it rules in this case, not wishing to pass a sweeping ruling in an area where it is inexperienced. But just about anything the court rules could have implications for the other states, including Georgia, which have differences with their neighbors over water.
The court appeared sensitive to Oklahoma’s claim that its sovereignty is involved. “I mean, it sounds like they are going to send in the National Guard or the Texas Rangers,” Justice Samuel Alito said. But if the state’s territorial claim trumps the terms of the compact, then the fragile structures which holds together all the compacts could be threatened — or at least that’s what the Tarrant district argued.

“If Oklahoma wins, many if not all of these compacts will be gutted,” the district said in a release  after the arguments were heard.

Given that the states need some kind of framework within which to work out their water issues, something that extreme may not be likely. But in Tallahassee, Montgomery and under the Golden Dome, every word of the court’s decision in this matter will be weighed carefully for its meaning in the unfinished struggle which is our water war.

Tom Baxter has written about politics and the South for more than four decades. He was national editor and chief political correspondent at the Atlanta Journal-Constitution, and later edited The Southern Political Report, an online publication, for four years. Tom was the consultant for the 2008 election night coverage sponsored jointly by Current TV, Digg and Twitter, and a 2011 fellow at the Robert J. Dole Institute of Politics at the University of Kansas. He has written about the impact of Georgia’s and Alabama's immigration laws in reports for the Center for American Progress. Tom and his wife, Lili, have three adult children and seven grandchildren.

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