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June 14, 2013
Supreme Court affirms state water sovereignty

In adjudicating a Western water rights dispute, the U.S. Supreme Court ruled unanimously in favor of a state’s sovereign right to control waters within its borders.  The opinion sheds light on the parameters of the 1978 Red River Compact, a congressionally approved roadmap on how Texas, Oklahoma, Arkansas, and Louisiana can avoid disputes over rights to the river’s water.  Historically, claims to the water have led to major conflicts, especially between Oklahoma and Texas.  The case is particularly important in light of growing population in areas of the West that are experiencing prolonged drought.

In Tarrant Regional Water District v. Rudolf John Herrmann, et al., Tarrant, which is based in Fort Worth, Texas, argued that the compact affords Texas the right to divert water from the Kiamichi River, a tributary of the Red River, located in Oklahoma.  According to Tarrant, federal law and the interstate commerce clause are being violated by several Oklahoma water statutes that prohibit permitting an outside party access to water that Oklahoma claims it needs for its own citizens.  But the case centers on the degree to which the compact gives a downstream state the right to access water within the borders of an upstream state. A district court ruled in favor of Oklahoma and the U.S. Appeals Court for the 10th Circuit affirmed. 

No borders?

Tarrant argued that a section of the compact ensures that the four signatory states have equal rights to a pivotal reach of water.   The section creates a “borderless common,” says Tarrant, in which each state may cross each other’s boundaries to access a shared pool of water subject to a 25 percent cap.  Tarrant justifies this position because the relevant section of the pact makes no reference to state borders.  This “silence” regarding state borders does not occur in other sections of the compact, stated Tarrant; therefore, Tarrant argues, Texas has a right to cross the border and take its share of water.

The Supreme Court rejected this argument.  The Court points to sections of the compact that also do not explicitly mention state borders but which can only be interpreted to indicate that a downstream state must wait for water from an adjacent upstream state to cross the border before it can claim its rightful percentage.  Thus, the absence of a reference to state borders in the section noted by Tarrant cannot be interpreted to mean that Texas can enter Oklahoma and divert water into Texas, the Court concluded.

Inscrutable silence

The Court also addressed Tarrant’s inference from the compact section described above that the signatory states “dispensed with the core state prerogative to control water within their own boundaries.”  The Court commented that states rarely relinquish their sovereign powers, “so when they do, we would expect a clear indication of such devolution, not inscrutable silence.”  Instead, the Court chooses to interpret the silence as the way in which the states drafted the compact with the idea of state sovereignty as a legal background.

The Court also looked at other water compacts in which states are “unambiguously” permitted to cross each other’s borders.  “The absence of comparable language in the Red River Compact counts heavily against Tarrant’s reading of it,” wrote Justice Sotomayor.  Tarrant was able to point to one exception (the Upper Niobrara River Compact covering Wyoming and Nebraska).  The Court responded, “We are not convinced that a single compact’s failure to reference state borders does much to detract from the custom in this area.”

Also working against Tarrant, stated the Court, is the history of state actions under the Red River Compact.  For example, in more than    30 years since the pact was approved by Congress, no signatory state had pressed for a cross-border diversion until Tarrant filed its suit in 2007. 

Tarrant further asserted that Red River water in Oklahoma, which is above a threshold during high flow periods, is unallocated, and Oklahoma is in violation of the Commerce Clause by blocking access to it by another state.  The Court answered that there is no unallocated water under the compact.  If the water is in Oklahoma, it is allocated to Oklahoma, said the Court.  Under the compact, Texas may request an accounting after which “Oklahoma is asked to refrain from utilizing more than its entitled share.”

Read Tarrant Regional Water District v. Rudolf John Herrmann, et al.

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