Arid States Take Water Clash to Supreme Court

WASHINGTON (CN) - A challenge from Texas to invalidate some Oklahoma laws governing the appropriation and use of water will go before the U.S. Supreme Court.

Texas and Oklahoma both take water from the Red River under a 1955 congressional edict and the Red River Compact, ratified in 1980.

As the population of Dallas-Fort Worth boomed in 2007, the Tarrant Regional Water District looked to appropriate water from three Red River tributaries in Oklahoma.

The district has agreements with the private owners of groundwater rights in Oklahoma, as well as the Apache tribe.

Entities that wish to appropriate Oklahoma water must apply for a permit, but the Tarrant Regional Water District challenged this scheme in a federal complaint against nine officials with the Oklahoma Water Resources Board and the Oklahoma Water Conservation Storage Commission.

The agency claims that Oklahoma's laws burden interstate commerce in violation of the dormant commerce clause, and that the laws are pre-empted by the Red River Compact in violation of the supremacy clause.

After Oklahoma lawmakers overhauled the water permit process in 2009, Tarrant tacked the new statutes to its complaint.

That same year, the trial court granted the Oklahoma defendants summary judgment on the claims under the supremacy clause and dormant commerce clause.

The 10th Circuit affirmed in September 2011.

"Our role is not to pass judgment on the economic policy implications of the Red River Compact," the ruling said. "Our role is to ascertain what the compact says about state regulation of apportioned water. We hold that the Red River Compact insulates Oklahoma water statutes from dormant commerce clause challenge insofar as they apply to surface water subject to the compact. We also uphold the Oklahoma statutes against Tarrant's preemption claim."

In its petition for certiorari to the U.S. Supreme Court, Tarrant asked:

"Whether Congress's approval of an interstate water compact that grants the contracting states 'equal rights' to certain surface water and - using language present in almost all such compacts - provides that the compact shall not 'be deemed ... to interfere' with each state's 'appropriation, use, and control of water ... not inconsistent with its obligations under this compact,' manifests unmistakably clear congressional consent to state laws that expressly burden interstate commerce in water."

The high court will also consider "whether a provision of a congressionally approved multi-state compact that is designed to ensure an equal share of water among the contracting states preempts protectionist state laws that obstruct other states from accessing the water to which they are entitled by the compact."

In granting certiorari on Friday, the justices issued no comment, as is their custom. They also permitted a motion from the city of Irving, Texas, and others to file a brief as amici curaie.

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