Posted on June 18, 2013 by Rick Glick
In a unanimous decision issued June 13, the Supreme Court put an end to a parched Texas municipal utility’s bid to secure an Oklahoma water right. In Tarrant Regional Water District v. Herrmann, the Court rejected every argument Tarrant advanced to access Red River basin water on the Oklahoma side.
The fabled college football rivalry between the Texas Longhorns and Oklahoma Sooners is not the only long simmering regional contest. Dividing the waters of the Red River between Texas, Oklahoma, Arkansas and Louisiana has been a source of tension through much of the twentieth century, until the states entered into a Compact in 1978, approved by Congress in 1980. The Compact took 20 years to negotiate.
At issue is a provision under the Compact that guarantees a minimum flow from a certain reach of the river to Louisiana, which lacks adequate storage facilities. The provision gives each state an equal share in the water from that reach. Tarrant, which serves the fast-growing Fort Worth area, had hoped to access water in an Oklahoma tributary before the water reached the Red River, as the river’s water quality is not suitable for domestic use when it enters Texas.
Failing in its attempt to purchase water from Oklahoma, Tarrant Regional Water District filed a water right application with the Oklahoma Water Resources Board. Knowing that Oklahoma law prohibits out of state use of water rights, Tarrant simultaneously filed an action in U. S. District Court. The district argued that the Compact preempts state water law, but the Court found nothing in the Compact to compromise the sovereign right of states to manage their waters. Absent an express provision in the Compact that allows signatories to access water across state lines, the states are free to regulate their waters as they see fit.
The states of Oregon and Washington entered into a compact in 1915, ratified by Congress in 1918, to regulate commercial fishing rights. In light of the Tarrant decision, would expansion of the compact to deal with other regional water issues make sense? For example, Washington and Idaho allow diversions of Lower Columbia River water for agriculture, whereas Oregon has not, citing fishery concerns. While the effect of the Federal Columbia River Power System on salmon has been hotly contested, and regional solutions attempted, perhaps a coordinated approach among the Northwest states with regard to Lower Columbia water use could bring about equities and protect fish. The Tarrant decision can be read to provide assurance that state prerogatives and rights are preserved even under a compact, unless the states decide it is in their mutual best interest to provide otherwise.