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Supreme Court to Hear Case with Broad Implications for Interstate Compacts

MA

RCH 2013

The Council of State Governments

CAPITOL ReseARCHinterstate compacts

THe CounCil of sTATe goveRnMenTs

BackgroundThe U.S. Supreme Court will hear oral arguments in April 2013, in the matter of Tarrant Regional Water District v. Herrmann. While the specifics of the case pertain to a dispute between Texas and Oklahoma over water from the Red River, the court’s ruling will be watched closely by the numerous interstate compacts that regulate shared bodies of water.

At issue in the case is whether the Tarrant Re-gional Water District, located in Texas, can access water from the Red River in Oklahoma pursuant to the terms of the Red River Compact. Tarrant, which serves the Dallas-Fort Worth area, contends it has the right to access approximately 130 billion gal-lons of water over several years from the Red River under the 1980 Red River Compact, which has been signed Texas, Oklahoma, Louisiana and Arkansas and received Congressional Consent in 1980. Oklahoma contends the amount of water requested by Tarrant exceeds downstream amounts established by the terms of the compact.

Like nearly all water allocation compacts, the Red River Compact contains language stating, “nothing in the Compact shall interfere with or impair the right or power of any Signatory State to regulate within its boundaries the appropriation, use, and control of water, or quality of water, not inconsistent with its obligations under this Compact.”1 This language is frequently included in water sharing compacts to protect individual state sovereignty.

In September 2011, the 10th Circuit Court of Ap-peals in Denver ruled against Tarrant, stating in the ruling, “the Red River Compact insulates Oklahoma water statutes from a legal challenge.”2 While the ap-pellate court conceded that the Red River Compact governs regional water allocation, it also noted the compact language gives considerable discretion to how the member states regulate and apportion water under the terms of the agreement.

The Supreme Court could issue an opinion before adjourning for the session this summer. The court’s decision will have significant implications for the al-location of water resources and interstate compacts. This would be especially true in states such as Texas

that rely on existing compacts to gain access to water resources located beyond their state borders.

Potential ImpactOn its basic level, this case has broad implica-

tions for rapidly growing metro areas. The Dallas-Fort Worth area, which has more than 6.5 million residents, is the fastest-growing metro area in the country, according to the 2010 census. Engineers from the Tarrant Regional Water District estimate that north Texas, which includes the Dallas-Fort Worth area, must double its water supply by 2050. Other rapidly expanding metro areas such as Houston-the Woodlands-Sugar Land, Texas, and Los Angeles-Long Beach-Anaheim, Calif., face similar concerns about increasing water demands.

In fact, the Obama administration encouraged the Supreme Court to hear the case largely because of concerns over water shortages in rapidly growing areas. Should the 10th Circuit Court’s ruling stand, it would pose a very significant challenge for these areas.

The court’s ruling also will have tremendous im-plications for interstate compacts. The most common use of the compact mechanism is to manage shared natural resources. According to the Wharton School

2 THe CounCil of sTATe goveRnMenTs

of Business at the University of Pennsylvania, 18 of the country’s fastest-growing metro areas depend on water allocations from interstate compacts. The court’s ruling, regardless of which way it goes, will have a significant impact on the future of water resource compacts. Forty-four active interstate com-pacts are responsible for managing water resources; 27 of those pertain directly to the management of rivers or river basins.

Should the Supreme Court uphold the appellate court ruling and side with Oklahoma, it would es-sentially be signaling that states are not obligated to allow other member states access to water resources set aside in existing compacts. While nearly all water resource compacts contain disclaimer language like that found in the Red River Compact, a ruling in favor of Oklahoma could pose significant challenges for similar compacts.

Conversely, if the Supreme Court overturns the lower court’s decision and sides with Tarrant, it easily could result in member states reconsider-ing water allocation compacts over concerns about individual state sovereignty. One of the major issues

states legislators must address when considering any interstate agreement is the question of state sover-eignty. Language protecting a member state’s right to regulate resources within its boundaries is common in water resource compacts and is intended to ad-dress state sovereignty concerns. Given the existing dependence of these compacts to distribute and share water resources, such a ruling could have profound consequences on water allocation across the country.

1The Red River Compact, http://apps.csg.org/ncic/PDF/Red%20River%20Compact.pdf2The Tenth Circuit Court of Appeals, http://docs.justia.com/cases/federal/appellate-courts/ca10/10-6184/10-6184-2011-09-07.pdf?1315440296

AddiTionAl ResouRCes » The national Center for interstate Compacts -- www.csg.org/ncic» The supreme Court of the united state Blog -- http://www.scotusblog.com/case-files/cases/tarrant-regional-water-district-v-herrmann/

ResouRCes

Crady deGolian, director, CsG’s national Center for interstate Compacts | cdegolian@csg.org