May 01, 2012

Tarrant Water District: Another battle in the Texas-Oklahoma water wars

Sidney F. Ansbacher

The Tarrant Regional Water District (Tarrant) is a massive water supply agency that serves over 1.6 million customers in north-central Texas, including Ft. Worth, Arlington, and numerous other municipalities and users. It also maintains expansive flood control systems and recreational facilities. Tarrant was founded in 1924, after a 1922 Trinity River flood overwhelmed inadequate levees, killing dozens and destroying swaths of property. Now Tarrant, wanting to purchase water from Oklahoma to help meet its supply needs, is on the battlefront of the long-running Oklahoma-Texas water war over allocation of the Red River. Tarrant filed a petition for certiorari in January 2012, in Tarrant Regional Water District v. Herrmann (No. 11-889), asking the U.S. Supreme Court to wade into the dispute.

The petition presents interesting Commerce Clause and interstate water compact implications. More to the point though, Tarrant serves a metropolitan area that was recently listed as the sixth largest American city that is at risk of running out of potable water, and cannot purchase water from Oklahoma. Ft. Worth relies on storage water, “making the system much more exposed to the worst effects of prolonged drought.” The Ten Biggest American Cities That Are Running Out of Water, Yahoo Fin., Nov. 21, 2010.

The troubles began when the 2004 Oklahoma Legislature passed a bill that barred out-of-state water sales pending results of a comprehensive state-wide water supply study. Okla. Stat. tit. 82 § 1B(A) (2004). The moratorium expired in November 2009, although the study was not completed until 2011.

Tarrant claimed that the Commerce Clause precludes Oklahoma from barring interstate transfer of potable water. Tarrant cited Sporhase v. Nebraska, 458 U.S. 941 (1982), where the Supreme Court held that the Commerce Clause limited one state’s ability to bar interstate sales of water. Oklahoma claims that a 1978 interstate compact among the states of Texas, Oklahoma, Arkansas, and Louisiana allows any signatory to discriminate against the others by protecting each state’s equitable allocation under the Compact. Congress approved the Compact in 1980. Tarrant countered that it has a shared right to waters of the Red River apportioned among the signatories. Tarrant claimed Oklahoma barred it from acquiring Oklahoma water that the Compact apportioned to Texas.

Tarrant sued the Oklahoma Water Resources Board in 2007, claiming the 2004 statute was unconstitutional by discriminating against interstate commerce. Tarrant also challenged other, preexisting statutes that treat intrastate and out-of-state applications differently. In 2008, the Oklahoma Legislature amended the statute to bar Oklahoma water districts from issuing permits to send water out-of-state without legislative approval.

The U.S. District Court for the Western District of Oklahoma dismissed Tarrant’s action in two steps. In 2009, the court held that the congressionally approved Red River Compact among Oklahoma, Arkansas, Texas, and Louisiana addressed surface water allocation among the states. The trial court held the federal approval mooted the argument that Oklahoma’s statute was barred by federal pre-emption. The states contractually agreed to the limits the compact placed on interstate commerce, thereby undercutting the Commerce Clause challenge. The Court distinguished Sporhase, which addressed “noncompacted” water, in Tarrant Regional Water District v. Herrmann, No. CIV-07-0045-HE, 2009 WL 3922803, at *1–*8 (W.D. Okla. Nov. 18, 2009).

In 2010, the court later dismissed a challenge to alleged groundwater impacts that were not subject to the Compact. The court held that a claim under Tarrant’s contract with property owners in Oklahoma failed for standing because the Oklahoma statutes “raise no special obstacles to plaintiff’s yet-to-be filed permit application for the export of groundwater.” Tarrant’s water claim under a memorandum of understanding (MOU) with the Apache Tribe was too speculative to invoke federal judicial jurisdiction; because (a) the Tribe and Tarrant’s MOU was not binding; and (b) Oklahoma had not denied Tarrant anything under the Apache water supply, Tarrant Regional Water District v. Herrmann, 2010 WL 2817220 (W.D. Okla. July 16, 2010) at *2, *3.

Tarrant appealed to the Tenth Circuit Court of Appeals. That court affirmed. It agreed that the Compact gave each state “wide latitude to regulate interstate commerce in its state’s apportioned water,” Tarrant Regional Water District v. Herrmann, 656 F.3d 1222, 1239 (10th Cir. 2011). The certiorari petition followed.

On April 2, 2012, the U.S. Supreme Court asked the Solicitor General to file a brief for the United States on whether to grant the petition for certiorari. Although there is no formal time deadline for the Solicitor General to respond, that office typically responds by the end of the current Court Term. Therefore, the Court is unlikely to take up the case this Term.

Sidney F. Ansbacher

Sidney F. Ansbacher is a shareholder with Gray Robinson, P.A., in Jacksonville, Florida.