Klein on Tarrant Regional Water District v. Herrmann

Klein on Tarrant Regional Water District v. Herrmann

By Christine A. Klein

In this analysis of the U.S. Supreme Court's decision in Tarrant Regional Water District v. Herrmann, [enhanced version available to lexis.com subscribers], Christine A. Klein discusses practical lessons of the Court's decision, including lessons for negotiating and drafting interstate water compacts, and suggests that Tarrant's legacy will be more practical than legal but that it might hold valuable clues as to the future of the Court's constitutional treatment of state water regulation.

Tarrant Regional Water District v. Herrmann was a potential legal blockbuster, holding in the balance a portion of the water supply for arid Texas and Oklahoma, as well as that of their wetter neighbors, Arkansas and Louisiana (the four states had signed an interstate compact allocating the right to use the water of the Red River and its tributaries). Tarrant offered the U.S. Supreme Court an opportunity to address two federalism issues. First, it raised the question of federal preemption of state water law. Second, it offered the Court a chance to revisit its thirty-year old—and arguably outdated—opinion in Sporhase v. Nebraska, [enhanced version available to lexis.com subscribers, which held that water is an article of commerce, and invalidated under the dormant Commerce Clause a provision of Nebraska law that purported to restrict the use of the state's water outside its borders.

But as decided by the Court, Tarrant's legacy will be more practical than legal: the Court neatly side-stepped both constitutional issues. As such, Tarrant offers little explicit legal guidance on the potential preemption of state water law by federal interstate water compacts, or on the constitutionality under the Commerce Clause of state laws purporting to restrict the diversion water from within the borders of one state for use in another. Instead, it offers a narrow interpretation of the Red River Compact of 1978.

Nevertheless, Tarrant will undoubtedly shape the way that Texas and Oklahoma water agencies do business. It also offers invaluable practical lessons for states negotiating interstate water compacts, and highlights litigation-inducing ambiguities that future compacts should avoid. Finally, as taken up in the conclusion, Tarrant might hold some valuable clues as to the future of the Court's constitutional treatment of state water regulation.

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