United States: The "Real" Red River Rivalry – Texas’ Battle For Water

The longstanding rivalry between Texas and Oklahoma is the stuff of legends. But this latest bout isn't a Mack Brown v. Bob Stoops or Dirk Nowitzki v. Kevin Durant debate to be held in the local pub. Instead, this fight is over the Red River itself, which will be heard in the United States Supreme Court, and will decide the fate of many water-depleted regions in Texas.

Texas' most recent drought is one of the worst since the "drought of record," (1947 - 1957). Most of the state (90%) is still experiencing abnormally dry conditions with 22% in extreme or exceptional drought, and Texas reservoirs have hit record lows for this time of year.

Texas Governor Rick Perry first addressed the dire conditions in his July 2011 Emergency Disaster Proclamation, stating that "exceptional drought conditions posed a threat of imminent disaster in specified counties in Texas." He renewed this proclamation in February 2013, immediately suspending "all rules and regulations that may inhibit or prevent prompt response to this threat ... for the duration of the state disaster."1

The severity of the situation encouraged Texas state officials to meet with their counterparts in Oklahoma in the hopes of gaining access to the Red River. But their request was denied.

Simply stated, the "real" Red River Rivalry is this: Texas needs water; Oklahoma refuses to share.

To be fair, this dispute began long before the most recent drought. In 1955, Congress granted permission to Arkansas, Louisiana, Oklahoma, and Texas to negotiate an agreement apportioning water in the Red River Basin (the "Compact"). The Compact was signed in 1978 and ratified by Congress in 1980. The Compact allocates "equal rights to the use" of certain water to Arkansas, Louisiana, Oklahoma, and Texas without reference to state lines.2 Importantly, the Compact outlines that if a reach or subbasin of the Red River is located entirely in one state, then that state has free and unrestricted use of that water.3 There is no requirement in the Compact to conduct an accounting of each state's use of water unless an affected state deems an accounting necessary.4

The Tarrant Regional Water District ("TRWD"), a Texas state agency that provides water to north central Texas, is seeking to import water to Texas pursuant to the terms of the Compact from three tributaries of the Red River. According to the TRWD, Oklahoma has an abundance of water due primarily to territory north of the Red River.5

In November 2007, after civil negotiations failed, the TRWD sued the Oklahoma Water Resources Board ("OWRB") in the Western District of Oklahoma seeking:

  1. a declaratory judgment invalidating certain Oklahoma statutes that prohibited or restricted the exportation of water from Oklahoma; and
  2. an injunction to prevent the OWRB from applying the challenged statutes to the Red River tributaries targeted by the TRWD.6

The TRWD argued that the Oklahoma statutes were unconstitutional because they placed impermissible burdens on interstate commerce and because they were preempted by the Compact, which already apportioned water from the Red River. The state of Oklahoma responded that Congress had given implicit consent to Oklahoma's commercial restrictions on the water by approving the Compact. The district court granted summary judgment in favor of Oklahoma,7 and the Tenth Circuit Court of Appeals affirmed.8

On January 4, 2013, the United States Supreme Court granted TWRD's petition for writ of certiorari and the case has been set for argument on April 23, 2013. The questions currently pending before the court are as follows:

  1. Whether Section 5.05(b)(1) of the Compact allows petitioner [TWRD] to divert water included in Texas's apportionment of Reach II, Subbasin 5 from within Oklahoma, thereby superseding Oklahoma statutes that would prohibit Texas water users from accessing that water.
  2. Whether the dormant Commerce Clause prohibits respondents from enforcing Oklahoma statutes that would prevent petitioner from accessing Texas's apportionment of Reach II, Subbasin 5 water from within Oklahoma.

Not surprisingly, there is a lot of interest in the Court's upcoming decision. This lawsuit has drawn amicus briefs from various organizations and governmental entities including the Upper Trinity Regional Water District, the state of Texas, the North Texas Municipal Water District, the Cities of Irving, Dallas, Arlington, and Fort Worth, and the Texas Water Conservation Association.9

Many of the major water sources in the Western United States are governed by interstate compacts that contain virtually the name "boilerplate" language at issue in this case. The 10th Circuit has ruled that this language exempts the Compact from the Constitution's Commerce Clause.

The TRWD argues that if this decision is affirmed by the Supreme Court, it would allow other states to follow Oklahoma's lead and enact similar legislation that could effectively render these interstate compacts void.

Many argue that an affirmation of the 10th Circuit's opinion could jeopardize the Great Lakes Compact and other water compacts affecting several major cities including Los Angeles, San Diego, Sacramento, Denver, Atlanta, Phoenix, Las Vegas, and Salt Lake City.10

Stay tuned for our analysis of the Supreme Court's decision and its impact on Texas's water plan. For those of us living in Texas, let's hope that the TWRD fares better in the "real" Red River Rivalry than the recent losses by our local sports teams.


1 http://www.tceq.texas.gov/assets/public/response/drought/proclamation022113.pdf

2 More than half the water within the region lies in Oklahoma, while only a small fraction is located in Texas and none is located in Louisiana.

3 Essential of Texas Water Resources (Mary K. Sahs ed., 2012) (citing, e.g., Tex. Water Code § 46.013, art. IV, §§ 4.03(b), 8.01).

4 Id. (citing Tex. Water Code § 46.013, art. II, § 2.11).

5 Tarrant Reg'l Water Dist. v. Hermann, Case. No. 11-889 (U.S. 2013) – Brief of Pet. Tarrant Regional Water District, p. 14 (filed Feb. 19, 2013) (available at http://www.scotusblog.com/case-files/cases/tarrant-regional-water-district-v-herrmann/)

6 Tarrant Reg'l Water Dist. v. Herrmann, No. CIV-07-0045-HE, 2009 U.S. Dist. LEXIS 107520 (W.D. Okla. Nov. 18, 2009).

7 Id.

8 Tarrant Reg'l Water Dist. v. Herrmann, 656 F.3d 1222 (10th Cir. 2011).

9 Copies of the filings in this lawsuit, including the amicus briefs of the various entities listed above, may be found at http://www.scotusblog.com/case-files/cases/tarrant-regional-water-district-v-herrmann/.

10 Bill Hanna, U.S. Solicitor General Recommends That Supreme Court Hear Water Case, FORT WORTH STAR TELEGRAM, Dec. 1, 2012, http://www.star-telegram.com/2012/11/30/4451557/us-solicitor-general-recommends.html.

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