Texas officials challenge new Oklahoma law blocking out-of-state water sales

By BILL HANNAbillhanna@star-telegram.com

The Tarrant Regional Water District argues in its federal lawsuit that a new Oklahoma law provides further evidence that the state discriminates against out-of-state water buyers.

The water district contends that House Bill 1483, passed by Oklahoma lawmakers in May, "adopts new and amendatory laws with the purpose and effect of perpetuating and expanding Oklahoma’s unconstitutional and discriminatory policy" against out-of-state water sales.

Despite the legislation, Jim Oliver, general manager of the water district, said he believes that the water district still has a good chance of winning its lawsuit. The trial date is set for December.

"We certainly don’t think it hurts our case. In fact, it probably helps our case," Oliver said. "The goal of the legislation is to hoard the water even though they can’t use that water."

On the other side of the Red River, the issue is viewed differently.

State Sen. Jerry Ellis, D-Valliant, crafted the legislation that placed a moratorium on out-of-state water sales that is set to expire this year. Selling water to Texas is a hot-button issue in his district, and he has successfully run — first as a state representative, then as a state senator — by vowing to oppose it.

Like East Texans against building the proposed Lake Fastrill and Marvin Nichols reservoirs for the Metroplex, Ellis argues that North Texas wastes water and has refused to seriously embrace conservation. Ellis concedes that he has no idea how the federal courts will rule, but he said Dallas-Fort Worth and Texas as a whole have not seriously embraced water conservation.

"They’re not conserving water; they’re making no attempt to," Ellis said. "They just want to come up here and get it for a little or nothing at all."

But Oliver said the water district will have contentious battles whether it obtains water from Oklahoma, East Texas or somewhere else. And he added that the state has documented the Metroplex’s needs for water over the next 50 years. He said he believes that Oklahoma’s tactics will fail.

"They are thinking they could tie us up for years in court, but we don’t think so," Oliver said.

Jim Harris, a Dallas lawyer with the Thompson and Knight law firm who has dealt with water issues, agrees that the legislation has not changed the dynamics of the lawsuit.

"I don’t necessarily see this statute as a game changer," Harris said.

Interstate commerce laws "have a bunch of hoops to jump through before it gets in the way of transporting water of state," Harris said.

The legal battle began in January 2007, when the water district sued Oklahoma and applied for permits from three river basins: the Cache, Beaver and Kiamichi. District officials hope to capture the water before it takes on too much salt when it enters the Red River.

A federal appeals court in Denver ruled in October that the water district’s lawsuit challenging the constitutionality of Oklahoma’s embargo on out-of-state water sales could move forward.

It was preceded by a similar ruling from an Oklahoma federal judge in October 2007 that the district’s lawsuit proceed.

The litigation has been joined by three other Metroplex water providers: the Dallas Water Utilities, the North Texas Municipal Water District and the Upper Trinity Regional Water District.

Hugo, Okla., has also received a favorable court ruling to sell water to Irving.

I don’t necessarily see this statute as a game changer."