"But while the ruling effectively shut down Tarrant’s attempts to force the state to share water, officials at the north Texas water district left the door open for water sales. “The decision does not address the problem of Oklahoma’s lack of water infrastructure, and we believe solutions that benefit both Texas and Oklahoma still exist,” TRWD General Manager Jim Oliver said in a media statement. “We will continue to explore and advance those opportunities.” " ARTICLE: Legal expert reflects on water decision By M. Scott Carter Oklahoma City / Capitol bureau reporter. Contact: 405-278-2838, scott.carter@journalrecord, @JRMScottCarter. Posted: 06:04 PM Friday, June 14, 2013 [Print] [Email] [RSS Feed] [del.icio.us] [Digg] [Facebook] [Google] [Twitter] Sardis Lake in southeast Oklahoma. (File Photo by M. Scott Carter) WASHINGTON – The Tarrant County Regional Water District’s argument that it had the right to come into Oklahoma to obtain its share of water under the Red River Compact fell flat because the agreement was silent on the idea of cross-border water diversions, a legal expert wrote this week. Writing for the website SCOTUSblog, legal analyst Thomas Merrill said Supreme Court Justice Sonia Sotomayor turned back Tarrant’s argument because the Red River Compact did not expressly limit diversions to those within a state, yet logically the compact had to be so limited. “She then turned to other constructional principles that favored Oklahoma’s view: the ‘well-established principle’ that states do not easily cede their sovereign prerogative to control waters in their own territories; the fact that other interstate water compacts, when they have created cross-border rights, have done so explicitly; and the fact that no other state, in the many years since the compact was approved in 1980, had asserted a right to make cross-border diversions under the clause,” Merrill wrote. Thursday’s unanimous ruling set off a thunderstorm of applause in Oklahoma. Across the state, political and tribal leaders praised the ruling, calling it a huge win for the state’s water policy. But while the ruling effectively shut down Tarrant’s attempts to force the state to share water, officials at the north Texas water district left the door open for water sales. “The decision does not address the problem of Oklahoma’s lack of water infrastructure, and we believe solutions that benefit both Texas and Oklahoma still exist,” TRWD General Manager Jim Oliver said in a media statement. “We will continue to explore and advance those opportunities.” Though Thursday’s ruling told Texas no, it also bypassed debate about tribal claims to water in the area. Briefs filed by the Choctaw and Chickasaw nations, the solicitor general of the United States and the TRWD referenced Oklahoma City’s purchase of the water storage rights of the Sardis Lake reservoir in Clayton. The Sardis deal, which was completed in 2011, is being mediated in an Oklahoma federal court. In his brief urging the U.S. Supreme Court to hear the Tarrant case, Solicitor General Donald B. Verrilli Jr. said the court should also examine both tribes’ claim of water rights in the area, adding that the Indian nations were exempted from the Red River Compact. On Thursday, the court seemed to bypass concerns over both tribes’ water rights. In his analysis, Merrill wrote that the ruling underscored the fact that Texas was free to take up to 25 percent of the excess water from Subbasin 5 from inside Texas and noted that Texas could demand an accounting if it thought Oklahoma was diverting more than its share. “But Texas could not enter Oklahoma without Oklahoma’s consent to divert water in Oklahoma,” he wrote. The most significant part of the opinion, Merrill wrote, was that the court established (via footnote) that a congressionally approved compact, as federal law, pre-empts state law that conflicts with the compact under the Supremacy Clause of the U.S. Constitution. “It also establishes, in another footnote, that the presumption against pre-emption does not apply to interstate compacts, because ‘the states themselves have drafted and agreed to the terms’ of the compact,” he wrote.
Posted on: Sun, 16 Jun 2013 17:33:13 +0000