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January 10, 2013
State water rights case to Supreme Court

The U.S. Supreme Court has granted certiorari in a case that may ultimately give clarity to state water rights under the 1978 Red River Compact.  The high court will decide on two lower court decisions that affirmed the right of the state of Oklahoma to control water within its borders in spite of certain water-sharing provisions the compact affords to Texas.  (The compact also includes Arkansas and Louisiana.) 

Many studies, including a recent work by the U.S. Forest Service, predict that arid regions of the West are headed toward unsustainable water use.  Hence, any Supreme Court opinion on how states should share these limited resources will be of considerable consequence.

Oklahoma’s laws

According to Tarrant, a Texas state agency, in Tarrant Regional Water District v. Oklahoma Water Resources Board (OWRB), the Red River Compact allows Texas to import water from specific areas of the Red River basin in Oklahoma.  However, Tarrant has argued that subsequent to the effective date of the Compact, the Oklahoma Legislature passed sets of laws that significantly constrained the OWRB from exporting water to other states.  Tarrant has contended that the Oklahoma laws violate both the Compact and interstate commerce as it is protected by the Commerce Clause.  Tarrant has also attempted to negotiate a deal for Oklahoma water not covered by the Compact, including water reserved for Oklahoma’s Apache tribe, but has argued that the OWRB has also exceeded its authority by prohibiting the out-of-state transfer of this water as well.

A U.S. district court ruled in favor of the OWRB, and the decision was upheld in the U.S. Court of Appeals for the 10th Circuit.  The appeals court stated that the Red River Compact gives Oklahoma a wide berth to protect its compacted water against out-of-state transfer and use. 

“Taken together, the provisions of §5.05 [of the Red River Compact] stand for the principle that the upstream states control the water within their boundaries, provided they meet their minimum flow obligations to downstream states and do not take more than an equal share of the excess,” stated the 10th Circuit.  “Tarrant interprets ‘equal rights to the use’ in §5.05(b)(1) not only to grant Texas a share of excess water, which it does, but also to mean that a Texas user such as Tarrant can access that water from anywhere in the subbasin, including Oklahoma, and not be subject to Oklahoma laws that restrict out-of-state use of water.  We cannot agree with this interpretation.” 

The 10th Circuit dismissed claims by Tarrant pertaining to non-Compact water transfers because Tarrant lacked standing and also because water rights pertaining to the Apache tribe are not clear and the matter is not ripe for judicial review. 

End of ‘water wars’?

“We are extremely pleased our request for writ of certiorari has been granted by the Supreme Court of the United States,” said Jim Oliver, general manager of the Tarrant Regional Water District.  “The Tarrant Regional Water District has worked for many years to resolve the legal questions concerning rights to water under the Red River Compact.  We expect the Supreme Court’s decision will bring finality to the legal issues that have precluded us from addressing regional water needs due to the growing population in the Metroplex.”

Following the district court’s decision in 2010, Oklahoma Attorney General Drew Edmondson applauded the court’s confirmation of the legality of the state’s water laws.  Edmondson also commented that “the water wars will continue for a number of years.”  That forecast has proved correct, although the Supreme Court may provide finality in at least some areas of the controversy. 

Click here for the 10th Circuit’s ruling in Tarrant v. OWRB.