Texas-Oklahoma water war could impact much of West

Richard Wolf | USATODAY

WASHINGTON -- A water fight erupted inside the Supreme Court Tuesday, and the justices had a hard time choosing sides.

On one side was Texas, accused of trying to divert water from Oklahoma under terms of a four-state compact that entitled each state up to 25% of a stretch of the Red River's bounty. On the other was Oklahoma, asserting that Texas can get the water from within its borders or elsewhere.

The battle is being watched closely by other states with interstate compacts similar to the one the two states share with Arkansas and Louisiana. There are more than two dozen compacts nationwide, mostly in the West, and at least nine with similar provisions.

The battle is critical for nearly 2 million residents of the Dallas-Fort Worth area who get water from the Tarrant Regional Water District. The fast-growing area needs far more water than it has; it warns that if it goes dry, other areas reliant on such compacts may as well.

"Agreed upon over seven decades beginning nearly a century ago, they provide the West with the stable legal infrastructure for apportioning the water necessary for its growth," said James Oliver, general manager of the water district. "If Oklahoma wins, many if not all of those compacts will be substantially gutted.

Under the 35-year-old compact, each of the four states is entitled to no more than 25% of the water. What's in dispute is where they can go to get it. Because the main stem of the river is salty, tributaries such as the one in Oklahoma that enticed Texas are considered preferable.

The Lone Star State has lost in both lower federal courts, which ruled that Oklahoma can bar such water hoarding. But the state contends that the four-state compact, approved by Congress, should trump state laws, and the U.S. Department of Justice agrees.

"Oklahoma is now trying to back out of that bargain," said Charles Rothfeld, the attorney for the Texas water district. "The plain text of the compact must control."

That argument didn't carry much sway inside the court, however. Justice Ruth Bader Ginsburg called the language in the compact "kind of sketchy." Justice Stephen Breyer said it doesn't guarantee Texas 25% of the water; it just prevents any state from taking more than that amount.

And Justice Elena Kagan derided the U.S. government's partial support for Texas in the case under a complex arrangement that she said "gives you kind of a headache."

If things were looking grim for Texas, however, Chief Justice John Roberts offered a ray of hope.

"The whole point of interstate compacts is that each state has to give up a little here, a little there," Roberts said.

But Lisa Blatt, the attorney representing Oklahoma, said Texas' claim was unprecedented. If granted, she said it would produce "open season for Oklahoma water" and lead to a situation in which "every state could have crisscrossing pipelines into every state."