The U.S. Department of Justice recommended last week that the U.S. Supreme Court should review Tarrant Regional Water District’s lawsuit against the Oklahoma Water Resources Board, but also consider the water rights of the Choctaw and Chickasaw Nations.
In a legal opinion filed with the court on Nov. 30, the U.S. Solicitor General Donald Verrilli said there were factual and legal questions regarding how much water was available at any given time for the compacting states – in this contested subbasin of the Red River, Oklahoma and Texas – to divide equally among themselves. He asserted that Tribal water rights could change any water allocations from the area.
“The United States is currently involved in litigation over the asserted right of the Choctaw and Chickasaw nations to water within their historic treaty territory,” Verrilli wrote. “Accordingly, water rights of the tribes may be relevant to the amount of excess water available.”
In 2007, Tarrant Regional Water District (TRWD) filed permits with the OWRB to divert billions of gallons of water from tributaries of the Red River within the borders of Oklahoma. Although Tarrant water officials acknowledge those waters flow into the Red River where Texas can then legally under the Red River Compact take it, TRWD states the water in the Red River is too salty to be economically useful. After filing the permit, the TRWD sued the OWRB, seeking toinvalidate certain Oklahoma statutes governing water.
TRWD lost its lawsuit in Oklahoma federal court and appealed to the 10th Circuit Court of Appeals. The 10th Circuit also turned aside Tarrant’s request. In January, Tarrant sought a hearing with the U.S. Supreme Court.
Now the DOJ has asked the Supreme Court to review the case and TRWD’s argument that the Red River Compact allows Texas water users to access some portion of Texas’s allocated share of the Red River from within the borders of Oklahoma.
However, in his brief, Verrilli also pointed out that even such an ability would not directly entitle TRWD to a permanent appropriation of the requested amount (310,000 acre feet per year) of surface water from within Oklahoma’s borders.
“Texas is not entitled to a fixed quantity of water under the compact,” Verrilli wrote. “It is entitled to use 25 percent of the excess water in the subbasin, and that quantity will change every year.”
The Supreme Court is expected to decide whether or not to review the case by the end of the year.