Supreme Court Decision May Complicate Interstate Deal-Making On Water Rights
By Sara Jerome
A recent Supreme Court opinion settling a dispute between Texas and Oklahoma could complicate and raise the stakes in future interstate negotiations for water rights.
The case — known as Tarrant Regional Water District v. Rudolf John Herrmann — examined whether a four-state water compact gave a Texas water district the right to enter Oklahoma, where the water was less salty, and divert water back to Texas.
The compact promised both states 25 percent of the water supply in parts of the Red River but fell silent on whether states could gather water from other states without consent. In a June opinion, the court unanimously ruled in favor of the Oklahoma Water Resources Board, led by Hermann.
The decision has implications for other states forming water compacts. The opinion may make “future compact negotiations more difficult,” water law expert William Staudenmaier of Snell & Wilmer LLP said in Bloomberg BNA. In the future, water compact negotiations may incorporate high-stakes negotiations over the right to take water from neighboring states, he said.
“The targeted state and its negotiators are likely to feel enormous internal political pressure to not cede any portion of the state's sovereign control over water,” he said, noting that addressing the issue in talks could save the parties high litigation costs later.
He discouraged states from passing sweeping "protectionist" legislation to keep others out of their waters. States would be wiser to set “specific limits on interstate access to their water supplies in a compact than to try to keep those supplies off limits through unilateral legislative action,” he said.
For Texas, losing the suit might not be the end of the road. It may seek to obtain Oklahoma’s water by buying it, according to reporting by the Journal Record of Oklahoma City, posted by NPR.
“Even though the water district’s legal bill topped more than $6 million, finding water sources within Texas could prove even more expensive,” the Journal Record reported.
The possibility is controversial in Oklahoma, where some argue that selling water would elevate financial concerns over critical natural resource questions.
“Nothing in the settlement protects Oklahomans from the greed or misguided beliefs of other Oklahomans [who could support selling water to Texas],” Oklahoma State Rep. Brian Renegar reportedly said. “Unfortunately, we have quite a few Oklahoma legislators who are still more than willing to sell our water to Texas. These legislators talk about the vast quantity of water flowing out of our state.”
The Oklahoma City Water Utilities Trust has said it will not sell water across state borders.
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