WHO OWNS WATER?

An important U.S. Supreme Court decision earlier this month involving water rights has received limited media attention. At issue was whether one state could cross its border and take water from a river in another state. The Court held that it could not.*

The Red River Compact allocates Red River water as between four states, including Texas and Oklahoma. A regional Texas water district sought additional water from a tributary of the River at a point within Oklahoma. The district filed suit seeking to enjoin Oklahoma's enforcement of that state's laws which prevent out of state entities from taking water from within Oklahoma.

The Supreme Court stated that interstate compacts are to be interpreted under contract law principles. It found that the Red River Compact essentially was silent on cross border water rights and that it was necessary to interpret the intent of the parties.

The Court said that a state does not easily cede its sovereign powers, including control of waters within the state. It cited an 1842 ruling that states have an "absolute right to all their navigable waters and the soils under them for their own common use." It added, "we have held that the ownership of submerged lands, and the accompanying power to control navigation, fishing, and other public uses of water 'is an essential attribute of sovereignty'". Accordingly, the Court held that the silence in the Compact on the subject of cross border water rights shows the parties had no intent to permit them.

The Court also rejected the district's argument that Oklahoma's law violates the Commerce Clause of the U.S. Constitution because it allegedly prevents water unallocated under the Compact from being sent to another state. The Court found that there is no unallocated water under the Compact, and it did not address the constitutional issue if there had been some unallocated water. However, given the Court's strong language as to a state's right to control water within its borders, perhaps the Court would be unlikely to find a Commerce Clause issue under any situation. Of course, on the other hand, there is the matter of federal jurisdiction over navigable waters.

As demand for water continues to grow, and outpaces supply in some areas, the pressure to find new sources of supply from out of area likely will increase, along with efforts by more water-rich states to resist such efforts.

For an interesting sidebar, see"Who Owns The Rain? Water Rights For Rainwater Harvesting" in the June, 2013 issue of the WE&T Magazine, p.39 (WEF.org).

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*Tarrant Regional Water Dist v. Herrmann, No. 11-889, 560 U.S.__(2013)