EL CENTRO – New Mexico attorney Charles DuMars, counsel of record for the Imperial Irrigation District in the Quantification Settlement Agreement coordinated cases, successfully represented the Oklahoma Water Resources Board against Tarrant Regional Water District, a north-central Texas state agency, before the U.S. Supreme Court.
In a unanimous decision issued on June 13, 2013, the Court upheld an earlier ruling by the Tenth Circuit Court of Appeals that the 1980 Red River Compact governing the apportionment of water among Oklahoma, Texas, Arkansas and Louisiana did not provide for an out-of-state applicant to divert water for export.
Tarrant had argued that the refusal of the Oklahoma Water Resources Board to grant a resource permit to the Texas water district that would enable it to take up to 350,000 acre-feet a year from a tributary of the Red River located within Oklahoma’s sub-basin was in violation of the compact and ran afoul of the Commerce Clause of the Constitution.
In finding for the Oklahoma Water Resources Board, Justice Sonia Sotomayor rejected the assertion that so-called “unallocated water” within the state of Oklahoma could be appropriated by the Texas water district.
On the contrary, the very fact that the Red River Compact presumed that states would exercise their own control over water within their boundaries to assure that apportionments were satisfied meant this water had been allocated.
According to briefs filed in the case by DuMars, the high court’s ruling holds that states entering into interstate compacts, which must be approved by Congress, do not lose their sovereignty.
In other words, the Supreme Court basically recognized that compacts, even though they comprise federal law, still protect state and private water rights.
There are certain commonalities between the Red River Compact and the Colorado River Compacts. Both rivers are controlled by interstate compacts, but the Court found that the purpose of entering into such federal agreements isn’t necessarily to move water from rural to supposedly higher-valued urban uses, which was the basis of Tarrant’s lawsuit.
Rather, Sotomayor wrote, if a compact is silent on the transfer of water between and among states, as the Red River Compact is, it is reasonable to conclude that the purposes of individual states control over those of the federal government