Sunday, November 11, 2012

Texas - Oklahoma Shootout

The rivalry between Texas and Oklahoma historically has been one dominated by the fall game between the University of Texas the University of Oklahoma.  The interstate rivalry has seen only one aspect - - football.  This is changing with board implications for the nation, especially the western states.  A new topic beyond just football has entered the conversation - - interstate compacts for the allocation and appropriation of water across state borders and water sources.
First a little history.  The Red River is a major tributary of the Mississippi River.  It rises in two primary forks from the Texas Panhandle and flows east, adjacent to the border between Texas and Oklahoma.  It thereafter marks a portion of the border between Texas and Arkansas and Louisiana and discharge into the Gulf Mexico.
Arkansas, Louisiana, Oklahoma, and Texas, having been "moved by considerations of interstate comity," and with consent of Congress, executed the Red River Compact.  The compact served the purpose to "promote interstate comity and remove causes of controversy between each affected states" by "providing an equitable apportionment among Signatory States of the water of the Red River and its tributaries," thereby enabling 'state planning and action by ascertaining and identifying each state's share in the interstate water of the Red River Basin.
 To facilitate the equitable sharing of water, avoid strife, encourage economic development, and forestall federal intervention, states have proactively entered into more than 30 agreements among themselves to address the allocation and appropriation of water across borders.  Such interstate compact are the "oldest mechanism available to promote formal interstate cooperation."  These compacts have become a vital tool in water management throughout the country.
The battle over the Texas-Oklahoma interstate compact is playing out in the court room.  Engineers and planners should be watching this particular case and the implications for water resource planning and the legal status of the other compacts.
The Red River Compact is currently pending before the Supreme Court on a petition for certiorari (based on the mixed results of the Tenth Circuit's decision).  Tarrant Regional Water District v. Hermann is a lawsuit between North Texas's Tarrant Regional Water District and the Oklahoma Water Resources Board concerning Texas's right under the Red River Compact - - which allocates water from the Red River system among Texas, Oklahoma, Arkansas, and Louisiana - - to access water located in Oklahoma.  At issue in the case are two significant questions of federal constitutional law: (1) Whether the Red River Compact - an agreement designed to enhance cooperation and resource sharing among its signatories and using language present in virtually all water compacts between western states - expressly authorizes Oklahoma to hoard its water by enacting discriminatory state water laws that otherwise would be invalid under the Dormant Commerce Clause; and (2) whether compact language that allocates to the signatory states "equal" shares of water within a particular region preempts protectionist state laws that obstruct other states form accessing their allocated share of water in another state.  The Tenth Circuit answered the former in the affirmative and the latter in the negative. 
Links to several more additional sources of information - -

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