Excerpt

The following is from the June 13, 2013, edition of Law360. Assistant Professor Sarah Tran of SMU's Dedman School of Law provided expertise for this story.

High Court Boosts States' Rights In Texas Water Ruling

 

June 14, 2013

By Jess Davis
Law360

Dallas (June 13, 2013) -- The U.S. Supreme Court’s Thursday decision in a water rights dispute between Oklahoma and a Texas water district sends a strong message that states control their own natural resources and have the power to enact protectionist laws, experts say.

The court held in a unanimous decision authored by Justice Sonia Sotomayor that the Red River Compact between Texas, Oklahoma, Arkansas and Louisiana, did not preempt Oklahoma laws restricting water exports from the state. The ruling cuts off the Tarrant Regional Water District’s attempt to draw water from a tributary of the Red River across the Oklahoma state line, which the Texas district had argued was allowed as long as no state took more than 25 percent of water from the river.

The ruling emphasized the need for explicit language in the agreement allowing cross-border water diversion, and that Oklahoma has control over all the water within its boundaries unless an accounting showed it had taken more than its fair share.

“It’s basically a slam dunk for states' rights,” said Sarah Tran, a professor at Southern Methodist University’s Dedman School of Law. “The plain language of the compact doesn’t say anything about state lines, so to read into it this state boundary is a pretty powerful statement.”

Water experts say that because the case was decided on narrow grounds, it won’t upend other existing water compacts, particularly because most others in the country do address whether and how states can cross boundaries to collect shared water. But the ruling lays out a framework for how the court will treat these compacts going forward, and highlights the need to explicitly contract for the rights each state expects to get, particularly to avoid stepping on state sovereignty, they say.

Tran said the "bold" ruling created a presumption that states aren’t allowed to cross boundaries to collect water without explicit authorization, putting the onus on states with limited water to negotiate harder and come up with alternatives, rather than drawing water from across state lines. It also gives clear protection to states that do have abundant water resources, making it clear they have a “powerful property right,” she said.

Tran noted that the court might have been swayed by policy issues and particularly influenced by amicus briefs filed by other states, which sided with Oklahoma’s interpretation of the compact’s silence on border crossing as evidence the Red River Compact wasn’t intended to allow any of the four states to enter the others to collect water.

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