13 June 2013

Law in Plain English: Tarrant Regional Water District v. Herrmann

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Tarrant Regional Water District v. Herrmann

The Tarrant Regional Water District (an agency of Texas) sued the Oklahoma Water Resources Board over the use of water governed by the Red River Compact (an interstate compact authorized by Congress; its signatories are Oklahoma, Texas, Arkansas, and Louisiana). The clause in question reads:
The Signatory States shall have equal rights to the use of runoff originating in subbasin 5 [see map below] and undesignated water flowing into subbasin 5, so long as the flow of the Red River at the Arkansas-Louisiana state boundary is 3,000 cubic feet per second or more, provided no state is entitled to more than 25 percent of the water in excess of 3,000 cubic feet per second.
Oklahoma argued (and the Tenth Circuit agreed), that the clause permits each state to take up to twenty-five percent of the excess water that it can obtain within its own  borders; and thus passed a series of statutes that disfavored out-of-state transfers of water relative to in-state transfers. Tarrant argued that the Compact language authorizes cross-border transfers of water. The questions before the Court were (1) whether Congress’s approval of an interstate water compact that grants the contracting states “equal rights” to certain surface water and – using language present in almost all such compacts— provides that the compact shall not “be deemed . . . to interfere” with each state’s “appropriation, use, and control of water . . . not inconsistent with its obligations under this Compact,” manifests unmistakably clear congressional consent to state laws that expressly burden interstate commerce in water; and (2) whether a provision of a congressionally approved multi-state compact that is designed to ensure an equal share of water among the contracting states preempts protectionist state laws that obstruct other states from accessing the water to which they are entitled by the compact.

In a unanimous decision, the Supreme Court ruled that the Red River Compact did not preempt Oklahoma's water statutes. As a result, Texas is not entitled to surface water in Oklahoma based on the clause above. The practical impact of this decision is to reinforce that sovereign states possess an absolute right to all their
navigable waters and the soils under them for their own common use. Absent a specific, unambiguous provision that allows cross-border transfers (which the Red River Compact does not), such transfers will not be permitted.
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