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Attorney General joins water fight against Oklahoma

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Texas Attorney General Greg Abbott has joined a North Texas water district’s fight against the State of Oklahoma – and Oklahoma’s attempt to deprive Texas of water resources.

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.

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.

“Water is too important for us to stay on the sidelines, so Texas is fighting Oklahoma’s attempt to keep us out of this case,” Abbott said. “These North Texas water districts plainly have a right to challenge Oklahoma’s prohibition on out-of-state water sales, so we have urged the federal court to hear their challenge – and protect Texas’ right to access the water it needs to continue to foster growth.”

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, which serves much of Denton Couty. 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.

Attorney General Abbott’s brief states, “Tarrant Regional is an entity permitted under Texas law to seek out and acquire water that Texas has a right to use; this is true even where the acquisition requires importation of the water into Texas.”

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.  

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