Newspaper article THE JOURNAL RECORD

Supreme Court Asked to Set Aside Ruling in Oklahoma-Texas Water Battle

Newspaper article THE JOURNAL RECORD

Supreme Court Asked to Set Aside Ruling in Oklahoma-Texas Water Battle

Article excerpt

The U.S. Supreme Court should set aside a ruling by the 10th Circuit Court of Appeals that threw out the Tarrant Regional Water District's lawsuit against the state, the U.S. solicitor general wrote in a brief.

Filed with the high court in late February, the 33-page brief by Solicitor General Donald B. Verrilli Jr. said the 10th Circuit Court's judgment should be vacated and the case remanded for further proceedings consistent with the court's decision.

Verrilli's brief follows one filed by the TRWD. Tarrant's brief, also filed in February, claimed that Oklahoma has enacted discriminatory state laws that have prevented Texas from obtaining its share of water under the Red River Compact. The 68-page document, part of Texas' lawsuit against the Oklahoma Water Resources Board and the state, outlines a litany of claims and calls Oklahoma's water policy an embargo.

Verrilli's brief seems to underscore several of those claims, noting that the Red River Compact - the water agreement between Texas, Oklahoma, Arkansas and Louisiana - should be interpreted to say that Oklahoma may not categorically foreclose Texas from diverting water in certain areas of the state "where such a prohibition would prevent Texas from exercising its 'equal right.'"

Under the terms of the Red River Compact, each state is entitled to about 25 percent of the water from the Red River. Verrilli wrote that the text of the agreement contains no state-boundary restriction on a state's exercise of its equal rights to use the excess water.

The brief also shoots down an argument by the 10th Circuit that said Texas was unable to get Oklahoma water under the Commerce Clause of the U.S. Constitution.

"In this court, petitioner is asserting a right only to access water that, under its interpretation of the compact, is allocated to Texas," Verrilli wrote. "Petitioner is not asserting a right to access water that is allocated to Oklahoma."

Because Texas is only seeking its share of allocated water, he said, the Commerce Clause holding would not apply. …

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