The Supreme Court appeared skeptical Tuesday of a claim by Texas that it has a right under a 30-year-old agreement to cross the border with Oklahoma for water to serve the fast-growing Fort Worth area.
The justices heard arguments in a dispute over access to southeastern Oklahoma tributaries of the Red River that separates Oklahoma and Texas.
The Tarrant Regional Water District serving an 11-county area in north-central Texas including Fort Worth and Arlington wants to buy 150 billion gallons of water and says the four-state Red River Compact gives it the right to do so. Arkansas and Louisiana are the other participating states and they are siding with Oklahoma.
Several justices pointed to the absence of an explicit approval for cross-border water sales in the agreement.
"This clause, the one that you rely on, is kind of sketchy, isn't it? Doesn't say how they're going to get it, if they're going to pay for it. There's a lot to be filled in," Justice Ruth Bader Ginsburg said to Charles Rothfeld, the lawyer representing the Texas district.
To the contrary, Rothfeld said, "it is quite clear" that the four states have equal rights to the water in the stretch of the Red River at issue before the Supreme Court.
Justice Samuel Alito called Texas' aggressive language "very striking. I mean, it sounds like they are going to send in the National Guard or the Texas Rangers."
Rothfeld sought to assure Alito on that point. "Oklahoma's brief suggests that the Texas Rangers are going to descend on Tulsa and seize the water. That is not what is contemplated," Rothfeld said.
District officials say that Oklahoma has more than 10 times the water it needs to meet its own needs and the district wants only about 6 percent of water flowing into the Red River — water that eventually flows into the Gulf of Mexico. They say drawing water directly from the river is not financially feasible because of salinity issues.
But the water district's plans have been blocked by Oklahoma laws that govern the use of water within its borders, including a moratorium on out-of-state water sales.
Lisa Blatt, Oklahoma's lawyer, took issue with virtually every aspect of the district's argument, including the claim that water drawn directly from the river is too salty.
"They think all the water that their residents drink is salty, but they still are drinking it," Blatt said.
The case arose from a federal lawsuit the district filed in 2007 against the Oklahoma Water Resources Board and the Oklahoma Water Conservation Storage Commission that challenges the state's water laws and seeks a court order to prevent the board from enforcing them.
Lower courts have ruled for Oklahoma, including the Denver-based 10th U.S. Circuit Court of Appeals. It found that the Red River Compact protects Oklahoma's water statutes from the legal challenge.
Legislation adopted by the Oklahoma Legislature in 2009 said no out-of-state water permit can prevent Oklahoma from meeting its obligations under compacts with other states. It also requires the Water Resources Board to consider in-state water shortages or needs when considering applications for out-of-state water sales.
The Obama administration is backing the Texas district at the Supreme Court, saying Oklahoma may not categorically prohibit Texas water users from obtaining water in Oklahoma. But the administration takes no position on whether the Texans ultimately should get the water they are seeking in this case.
A decision is expected by late June.
The case is Tarrant Regional Water District v. Herrmann, 11-889.