Texas water district continues legal fight

AP News
Posted: Dec 14, 2009 11:14 AM

Oklahoma officials declared victory when a federal judge dismissed part of a North Texas water district's lawsuit that claimed it had the right to buy billions of gallons of water from basins in southern Oklahoma.

Not so fast. The Tarrant Regional Water District plans to amend the lawsuit and continue its legal fight in hopes of eventually negotiating a deal that would pay the state millions of dollars each year for water the district maintains Oklahomans do not need.

"One basin in southeastern Oklahoma could provide the water needs of the entire state," said Hopper Smith, a former state representative who is now a lobbyist for the water district that serves Fort Worth, Texas, and surrounding communities.

The district's general manager, Jim Oliver, said 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 that separates Oklahoma and Texas from Cache Creek, Beaver Creek and the Kiamichi River _ water that eventually flows into the Gulf of Mexico.

"This is basically leftover water," Oliver said. "We're still ready to negotiate. It's a win for Oklahoma. It's a win for us."

Smith said selling water to parched North Texas communities makes more sense than ever as the state slips deeper into a budget shortfall and lawmakers look for ways to fill a budget hole that financial analysts estimate could reach $1 billion by the end of the fiscal year June 30 _ about 14 percent of Oklahoma's $7 billion budget.

Oliver said the district will pay between $15 million to $65 million for Oklahoma water, depending upon the volume taken, and will install pipelines and pumping stations that will be built and operated by Oklahomans.

"You're talking about a billion dollars in pumping stations and pipelines," Oliver said.

"Negotiate as a good neighbor. It makes all the sense in the world," Smith said.

But southeastern Oklahoma lawmakers have dug their heels into the Red River sand in opposition to the proposal. They insist the state should do nothing to help its economic rival to the south and should concentrate on meeting Oklahoma's water needs.

"I've got plenty of things to do to make money without selling your water," said Rep. Jerry Ellis, D-Valiant, whose southeastern Oklahoma district abuts the Red River.

"You can't do anything without water. It's the key to growth," Ellis said. "All we're doing is fueling Texas' growth. Oklahoma's needs should come first."

Ellis also said the water Texas needs is not for human consumption but to service oil and natural gas drilling operations that require tens-of-thousands of gallons of water.

"They can build reservoirs and they can drill wells. There are plenty of things they can do before they come and take ours," Ellis said.

He also said water district officials have not proven they have done all they can to conserve the water they have or obtain new supplies from other sources, like the Red River. Oliver said drawing water directly from the river is not financially feasible because of salinity issues.

The political opposition is reflected in the actions of legislative leaders who have opposed a negotiated settlement to the case.

"This is obviously a very sensitive political issue, which is compounded by an ongoing legal battle that brings added scrutiny to every word we say about water," Oklahoma House Speaker Chris Benge, R-Tulsa, said in a statement.

"Tarrant County's lawsuit was dismissed. They may amend it and keep this legal battle going, but we believe the outcome will not change," Benge said.

He said there are communities throughout the state that have been held back economically because of a lack of water infrastructure and that the state is in the midst of a comprehensive water study to determine how to put the state's water resources to best use.

But the House Speaker also indicated a willingness to work with North Texas officials on their water needs, a suggestion that appears in a ruling on the lawsuit handed down by U.S. District Judge Joe Heaton last month.

Heaton said nothing in his order prevents the state, "as a good neighbor," from negotiating some arrangement to more effectively use its water. "The alleged facts suggest Oklahoma has ample room to maneuver in that regard, without harming either its long term or short term interests," the judge wrote.

Benge said state officials "are very willing to move forward on this issue in a neighborly fashion as the judge suggested."

The water district filed the lawsuit in U.S. District Court in Oklahoma City in January 2007 against the Oklahoma Water Resources Board and the Oklahoma Water Conservation Storage Commission challenging the constitutionality of a moratorium on out-of-state water sales passed by the Oklahoma Legislature.

Attorney General Drew Edmondson's office asked Heaton to dismiss the lawsuit based on new legislation passed in May that he said effectively repealed the moratorium. Officials said the legislation was an attempt to eliminate appearances of bias against out-of-state water applicants and strengthen the state's legal position.

Among other things, the new law says no out-of-state water permit can prevent Oklahoma from meeting its obligations under interstate 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.

Although the North Texas water district is amending its lawsuit to continue the legal fight, officials would prefer a negotiated agreement with state officials that would benefit both sides, Smith said.

"To be against this measure is the politically safe place to be," he said. "It does take some statesmanship to see the best interests of the state."