Red River Shootout -- North Texas seeks Oklahoma rivers as water source

From the Lubbock Avalanche-Journal


DALLAS — A lot of flat, dusty distance separates the pavement and St. Augustine grass of North Texas from the relative oasis of southeastern Oklahoma.

But the 100-mile stretch isn’t the biggest thing keeping Texas sprawl from tapping Oklahoma rivers as a much-needed water source.

First, there’s that so-far impermeable state line, reinforced by suspicions on both sides. Also, a compact already divides up the water, essentially guaranteeing each state a prescribed share.

And federal courts, one as recent as Sept. 7, have weighed in, stopping North Texas’ attempts to secure a bigger slice.

Further complicating the matter: a lawsuit filed by the region’s longtime inhabitants, the Choctaw and Chickasaw nations. They assert that the water descending toward the Red River doesn’t belong to Oklahoma at all, but to them — thanks to a 181-year-old treaty with the U.S.

Given the obstacles, the prospect that Oklahoma water will flow to the urban expanse of Dallas-Fort Worth anytime soon — that is, anytime in the next decade or so — seems remote.

That doesn’t mean North Texas water planners have given up on Oklahoma, but they’ll need a different approach.

“We had hoped that Oklahoma would (receive) a fairly fast acceptance, but it looks like it’s going to be a lot slower,” said David Marshall, director of engineering services for the Tarrant Regional Water District, which led the unsuccessful court fight for access to Oklahoma water.

Texas’ would-be Oklahoma water venture is part of a long-term strategy to make sure Dallas-Fort Worth has enough water after about 2030 or 2035, when existing supplies might run short.

This summer’s nearly relentless string of 100-degree-plus days and cloudless skies put North Texas on notice: Cut water use drastically, develop new sources, or both — or else face a shaky economic future.

The region’s population growth and high per-capita water use, worsened by periodic droughts such as the current, historic dry spell, have made finding future water supplies a priority.

New reservoirs, bigger pipelines from existing ones, re-use of treated wastewater and conservation are all on the table. The options requiring construction can take years of decades for permitting and building.

The failure so far to get Oklahoma water isn’t the first setback for North Texas planners. Dallas’ bid to build a reservoir on the Neches River in East Texas failed because of prevailing plans for a new national wildlife refuge on the same site.

Some things have gone the regional planners’ way. Perhaps the brightest news is that conservation campaigns during the last couple years seem to have worked.

Opponents of North Texas’ water plans, including some Oklahoma officials and Northeast Texas landowners fighting the proposed Marvin Nichols Reservoir, have long assailed Dallas-Fort Worth as a water waster. “Watering their sidewalks” is an oft-heard slight.

Marshall said the Tarrant district has seen about a 7.5 percent decrease in water use because of conservation. This summer’s peak demand set a record, but a smaller one than might have been expected during a blazing drought, he said.

Jody Puckett, head of Dallas Water Utilities, said the future outlook is more hopeful now than several years ago, when a crisis seemed to be looming.

Tighter plumbing codes have helped cut indoor water use, but there’s still work to be done on landscaping, Puckett said. Lawns and landscapes account for most of the region’s water use, especially in hot weather.

“It’s a whole business change — native (plants) versus non-native,” Puckett said. “No one gets a primer on how to take care of the landscape when they buy their first house.”

Barring huge cuts in demand, however, North Texas still needs more water. Looking to the state’s northern neighbor for help has been a seemingly attractive option.

Much of Oklahoma earns its reputation as water-challenged, but the state’s southeastern corner is an exception. With plenty of mountain streams, rivers and reservoirs and no urban complex to suck them dry, that area has beckoned for years.

North Texas officials listed obtaining water from southeastern Oklahoma among their “recommended strategies” in 2001, 2005 and 2011 regional plans.

In the 2011 version, five public suppliers serving Dallas-Fort Worth hoped to split about 46 billion gallons a year at some future point. They would also split the capital costs of obtaining and transporting the water, estimated at about $941 million.

Altogether, the Tarrant Regional Water District, heading a North Texas coalition, planned to file applications to get about 150 billion gallons of Oklahoma water a year. In a 2007 federal lawsuit, the district said the vast majority of the Red River watershed’s flow was “wasted” by running downstream toward the gulf.

Oklahoma told the Tarrant district it could have no water. State laws and rules blocked non-residents from obtaining Oklahoma water rights.

The North Texans said the Oklahoma blockade was illegal and unconstitutional.

A U.S. district judge ruled for Oklahoma in 2009, and on Sept. 7, a three-judge panel of the 10th Circuit U.S. Court of Appeals agreed, rejecting the Texas arguments. On Wednesday, the Tarrant district asked for a rehearing before the full circuit court.

The court rulings state that North Texas planners do not have a right to obtain Oklahoma water simply by filing applications for it. However, they leave open other avenues, such as negotiating a purchase agreement from Oklahoma or some authorized entity within that state.

The Tarrant district is re-examining its list of options and is considering its next move on Oklahoma water, the agency’s Marshall said.

However, the Choctaws’ and Chickasaws’ lawsuit, filed against the state on Aug. 18, puts up another potential roadblock. Their national sovereignty could become the major factor in whether any water in tribal territory leaves Oklahoma.

The tribes say the waters of southeastern Oklahoma belong to them and have since Sept. 27, 1830, when Maj. John H. Eaton, Gen. John Coffee, Musholatubbee, Nittucachee and dozens of other U.S. and tribal representatives signed the Treaty of Dancing Rabbit Creek.Subsequent treaties affirmed those rights, said Michael Burrage, the tribes’ attorney and a former federal judge.

“It’s the position of the Choctaw Nation and the Chickasaw Nation that the state of Oklahoma and the Oklahoma Water Resources Board have absolutely no jurisdiction, because of the sovereignty rights granted in the treaty, to control any of the in-territory water,” and clearly have no authority to allow water exports, Burrage said.

Oklahoma has not filed its reply to the suit.

If the tribes prevail, Burrage said, they would become the governing authority over the water. The treaty supersedes state and federal laws and the interstate Red River compact, he said.

Existing users have been assured they wouldn’t lose water, Burrage said, adding that the tribes aren’t asserting their water rights in order to make money. They want to establish their sovereignty and make sure the water is protected and used wisely, based on a tribal study to be completed soon, he said.

Burrage was asked whether a water planner in North Texas, seeking ways to supply water to millions of people, should view the tribes’ lawsuit as good news or bad.

He chuckled.

“I can’t answer that,” he said.