Will Tarrant Regional Water District v. Herrmann be the beginning of the end for river compacts? (probably not)

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From the Associated Press (Mark Sherman) via the Washintgon Post:

The Supreme Court appeared skeptical Tuesday of a claim by Texas that it has a right under a 30-year-old agreement to cross the border with Oklahoma for water to serve the fast-growing Fort Worth area. The justices heard arguments in a dispute over access to southeastern Oklahoma tributaries of the Red River that separates Oklahoma and Texas. The Tarrant Regional Water District serving an 11-county area in north-central Texas including Fort Worth and Arlington wants to buy 150 billion gallons of water and says the four-state Red River Compact gives it the right to do so. Arkansas and Louisiana are the other participating states and they are siding with Oklahoma.

Several justices pointed to the absence of an explicit approval for cross-border water sales in the agreement. “This clause, the one that you rely on, is kind of sketchy, isn’t it? Doesn’t say how they’re going to get it, if they’re going to pay for it. There’s a lot to be filled in,” Justice Ruth Bader Ginsburg said to Charles Rothfeld, the lawyer representing the Texas district.

To the contrary, Rothfeld said, “it is quite clear” that the four states have equal rights to the water in the stretch of the Red River at issue before the Supreme Court.

Justice Samuel Alito called Texas’ aggressive language “very striking. I mean, it sounds like they are going to send in the National Guard or the Texas Rangers.”

Rothfeld sought to assure Alito on that point. “Oklahoma’s brief suggests that the Texas Rangers are going to descend on Tulsa and seize the water. That is not what is contemplated,” Rothfeld said…

…the water district’s plans have been blocked by Oklahoma laws that govern the use of water within its borders, including a moratorium on out-of-state water sales. Lisa Blatt, Oklahoma’s lawyer, took issue with virtually every aspect of the district’s argument, including the claim that water drawn directly from the river is too salty…

Lower courts have ruled for Oklahoma, including the Denver-based 10th U.S. Circuit Court of Appeals. It found that the Red River Compact protects Oklahoma’s water statutes from the legal challenge.

Legislation adopted by the Oklahoma Legislature in 2009 said no out-of-state water permit can prevent Oklahoma from meeting its obligations under 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.

The Obama administration is backing the Texas district at the Supreme Court, saying Oklahoma may not categorically prohibit Texas water users from obtaining water in Oklahoma. But the administration takes no position on whether the Texans ultimately should get the water they are seeking in this case.

A decision is expected by late June.

From the Deseret News (Amy Joi O’Donoghue):

Utah joined six other states that weighed in together on the Tarrant Regional Water District vs Hermann case that pits the water supplier for much of the Fort Worth-Dallas area against the state of Oklahoma. At issue is an interstate compact governing the division of excess runoff water that is to be shared equally by four states: Oklahoma, Arkansas, Texas and Louisiana…

The Texas district wants to dip into its share of Red River water by taking its fourth of the flow in Oklahoma. Oklahoma has responded that the district has no authority or right to cross the border to meet Texas water needs.

Oklahoma lawmakers, acting to protect their water resources, passed a moratorium on any water exports from the state, unless those exports have their express approval.

[Tim Bishop, an attorney representing the water district] said the state’s actions fly in the face of the compact’s provisions, shunning a congressionally mandated binding agreement…

The legal team points to areas like Denver and the Salt Lake City metro area as regions that depend on water supplies governed by interstate compacts — such as the Colorado River compact of 1922 that allocates that water among seven recipient basin states, including Utah. But Utah actually joined with Colorado, Idaho, Nevada, New Mexico, Indiana and Michigan in urging the high court to refrain from unraveling the 10th Circuit decision. “We have a very strong interest” that Oklahoma’s position be upheld, said Norm Johnson, the natural resources attorney for the Utah Attorney General’s Office. “A compact does not equal permission to disregard the water laws of equal sovereign (states).”

Johnson said it should be telling that both lower courts have sided with Oklahoma and respected the right of states to govern what happens to the water within their boundaries.

From Circle of Blue (Brett Walton):

At the heart of the lawsuit is whether the language of the Red River Compact — signed in 1978 by the basin states of Arkansas, Louisiana, Oklahoma, and Texas, and ratified two years later by Congress — gives entities in Texas the right to water that originates in a particular river basin in Oklahoma…

Tarrant’s legal team argues that if the Supreme Court upholds the federal appeals court ruling, which supported Oklahoma’s restrictions on out-of-state water sales, the justices would throw existing water compacts into chaos and would encourage protectionist policies from states wanting to guard water resources on their soil. The problem is that almost no one outside of Texas shares that view…

Tarrant has not found much sympathy in this case. Nearly all of the amicus briefs — filings from parties interested in the outcome but not directly involved — have sided with Oklahoma. Arkansas and Louisiana, the two other states bound by the Red River Compact, filed on behalf of Oklahoma, as did a group of water law professors and a pair of water districts in Colorado that draw from interstate rivers. Even states that are part of other interstate compacts — a diverse group including Colorado, Idaho, Indiana, Michigan, Nevada, New Mexico, and Utah — share Oklahoma’s position.

Seemingly the only groups supporting Tarrant are Texas-based organizations and the city of Hugo, Oklahoma, which would like to sell water to Texas. The U.S. Solicitor General also backs Texas.

Mark Davis, director of the Tulane Institute on Water Resources Law and Policy in New Orleans, told Circle of Blue that this case is mostly a compact issue and is not about the Commerce Clause.

“If you have water, you read the compact one way. If you don’t, you read it another,” said Davis, who co-signed an amicus brief supporting the Tenth Circuit’s ruling in favor of Oklahoma. “The fact that Texas has a growing need for water means it’s going to read as many rights into the compact as it can.”

Arkansas and Louisiana, in their amicus brief, wrote that the provision about the equal rights in sub-basin 5 “simply does not constitute a clear expression by the signatory states or Congress that this one phrase was added for the purpose of overriding the regulatory authority of the States over intrastate waters that was otherwise maintained throughout the Compact.”

The compact also makes clear that the states have the power to regulate water within their boundaries. And Arkansas and Louisiana — two wet states that use riparian law that differs from the rights-based system in the American West — have different legal traditions for water than their fellow Red River states.

More water law coverage here.

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