Texas Attorney General Greg Abbott has joined a North Texas water district’s fight against the State of Oklahoma – and Oklahoma’s constitutionally dubious attempt to deprive Texas of vitally important water resources, according to a statement released from the AG’s office. The rest of the statement follows:
In an amicus brief submitted Wednesday to the federal court in western Oklahoma, Attorney General Abbott offered legal support for the water district’s pursuit of water from the Kiamichi River Basin. Access to that water is vital to the future growth, expansion and vitality of North Texas and its surrounding areas.
Attorney General Abbott’s legal argument was submitted along with a document seeking the court’s permission to file an amicus brief in the case. The State of Oklahoma has indicated that it opposes – and therefore will object to – the Texas Attorney General’s motion seeking the court’s permission to weigh-in on the case.
In 2007, the Tarrant Regional Water District (TRWD) filed a federal lawsuit challenging the constitutionality of several Oklahoma laws that effectively prohibit Oklahoma water from being exported to neighboring states, including the State of Texas. Other North Texas water utilities support TRWD’s challenge, including Dallas Water Utilities, the North Texas Municipal Water District and the Upper Trinity Regional Water District. TRWD is the named plaintiff in this case and is leading the districts’ negotiations with the State of Oklahoma.
One of the challenged statutes specifically forbids Oklahoma water districts from issuing out-of-state export permits unless the part-time Oklahoma Legislature also approves the permit. Thus, the law functionally operates as a total prohibition on the sale of water to Texas.
Last November, the U.S. District Court for the Western District of Oklahoma partially dismissed the lawsuit and questioned the water district’s right – in legal terms, standing – to bring the lawsuit. In the brief filed yesterday, Attorney General Abbott explained that TRWD has the requisite standing to challenge Oklahoma’s legally questionable laws because TRWD has been duly permitted to seek and acquire water in the State of Texas. As a result, the water district is suffering from a judicially redressable harm because its efforts to purchase Oklahoma water have been impeded by Oklahoma’s ban on out-of-state water transfer prohibitions. The City of Hugo, Oklahoma agreed to sell water to North Texas. On August 7, 2008, the Irving City Council unanimously adopted Resolution No. RES-2008-354, which authorized the Public Works Department to purchase water from the Hugo Municipal Authority. At the time, the Oklahoma Water Board had already issued a permit authorizing Hugo to sell more than 9.2 billion gallons of water. However, the Oklahoma Legislature subsequently passed a law that outright prohibited out-of-state water sales. After a similar law was struck down in New Mexico, the Legislature amended the Oklahoma law to require legislative approval before water can be transferred outside state lines.
TRWD’s legal challenge argues that a 30-year old agreement called the Red River Compact supersedes Oklahoma’s questionable laws. Under the compact, which was signed by Texas, Oklahoma, Louisiana and Arkansas in 1978 and approved by the U.S. Congress in 1980, water from the Red River and its tributaries are subdivided into five areas called “reaches.” Each reach is further divided into a number of sub-basins. The area at the center of this dispute is Reach II, Sub-basin 5 along the Kiamichi River in southeastern Oklahoma.
Attorney General Abbott and TRWD believe the compact allows the district to access water before it flows into the Red River, which has a higher saline content than its tributaries – and is therefore not as suitable for consumption. As court documents filed by the attorney general explain, Texas has “equal rights” to access water within Reach II, Sub-basin 5. Thus, the issue is not whether Texas has a legal right to access water in Oklahoma. Rather the legal question is whether Oklahoma can prevent Texas from accessing water that is easily – and economically – convertible into drinking water for Texas families.
All of the entities involved in the challenge against Oklahoma are governed by locally elected officials or member-municipalities’ representatives and are independent government subdivisions, not state agencies. As a result, the districts are represented by their own legal counsel because the Office of the Attorney General is only authorized to represent the State of Texas and its agencies in court. Because the attorney general does not represent the districts, he is seeking to advance the state’s interest in water by supporting their challenge to Oklahoma.
The Tarrant Regional Water District provides water to more than 1.7 million Texans in an 11-county area that includes the cities of Fort Worth, Arlington, Mansfield and the Trinity River Authority. Nearby, the Upper Trinity Regional Water District provides water to 250,000 Texans, primarily residents of Denton County. The North Texas Municipal Water District serves multiple cities, including: Allen, Farmersville, Forney, Frisco, Garland, McKinney, Mesquite, Plano, Princeton, Richardson, Rockwall, Royse City and Wylie.
Abbot’s Motion to File a Friend of the Court Brief and Brief itself: http://www.oag.state.tx.us/newspubs/releases/2010/021710friend_brief.pdf
