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The Supreme Court recently agreed to hear arguments in the matter of Tarrant Regional Water District v. Herrmann, No. 11-889 (S.Ct, filed January 19, 2012; cert. granted January 4, 2013).  The Tarrant case is interesting to those of us in the Great Lakes Basin because it deals with a state compact that regulates a body of water – similar to the compacts the Great Lakes States and Canada have entered into over the years.

The Tarrant case is a dispute between Texas (Tarrant, Texas Regional Water District) and Oklahoma over water located in the Red River. The Texas Water District believes it has a right to access water in the Red River in Oklahoma pursuant to an agreement signed by Texas, Oklahoma, Arkansas and Louisiana (the “Red River Compact”).  Siding with Oklahoma, the lower agreed that Texas is only guaranteed a certain minimum downstream flow under the Compact. In this context, the case appears to have very little to do with the compacts governing water use within the Great Lakes basin.

However, it’s the Water District’s constitutional argument that the Great Lakes States and Canada should pay attention to.  The Water District claims that the “protectionist” character of the Red River Compact violates the dormant Commerce Clause of the U.S. Constitution.  The Commerce Clause of Article 1 of the U.S Constitution gives Congress the exclusive authority to regulate interstate commerce.  The dormant Commerce Clause is the legal theory that because Congress regulates interstate commerce, States cannot enact legislation that unreasonably restricts interstate commerce and prevents States from being “protectionist” with their natural resources.

According to the Water District, the Supreme Court has consistently required that Congress unambiguously acknowledge and approve a statute’s or a Compact’s unreasonable restrictions on interstate commerce and cited Sporhase v. Nebraska, 458 U.S. 941 (1982) and South-Central Timber v. Wunnicke, 467 U.S. 82 (1984) in support of its position.  In the Water District’s view, Congress has to explicitly approve the restrictive nature of the Compact and Congress’ intent cannot be gleaned by looking at the restrictive language in the Red River Compact as a whole.  

The two main compacts affecting the Great Lakes are the Great Lakes Charter and the Great Lakes St. Lawrence River Basin Water Resources Compact.  A detailed description of the scope of each is beyond the intent of this article, but the following provides a brief summary of each: 

  • Great Lakes Charter / Annex 2001.  Established a cooperative arrangement between the Great Lakes States and Ontario and Quebec whereby each party agreed to provide notice to each other and to consult on any proposed diversions of water from the Great Lakes Basin. 
  • Great Lakes – St. Lawrence River Basin Sustainable Water Resources Agreement / Great Lakes St. Lawrence River Basin Water Resources Compact.  Established the structure that the Great Lakes States and Provinces use to manage water withdrawals from the Great Lakes Basin.  In particular, the agreements call for an outright ban on new diversions of water from the Basin and grant only limited withdrawals for use by communities within the Basin.  The agreements are managed by two governing bodies:  the Great Lakes – St. Lawrence Water Resource Regional Body and the Great Lakes – St. Lawrence River Basin Water Resources Council.  Congress consented to and approved the Water Resources Compact in 2008 by enacting Public Law 110-342.

Depending on how the Supreme Court rules in the Tarrant case, if the Red River Compact falls, it could put the Great Lakes Compacts on shaky ground.   Although Congress approved the Compact in Public Law 110-342 in 2008, it did not make any statement that it was explicitly authorizing the Compacts’ unreasonable restraint on interstate commerce.  Although such an intent could be inferred from Congress’ approval of a Compact that clearly calls for a ban on out-of-Basin diversions, this is the type of argument that the Tarrant case has called into question.  Therefore, if the Supreme Court adopts the position of the Texas Water District in the Tarrant case, the Great Lakes Water Resources Compact could be subject to a challenge by a non-Great Lakes State that was interested in establishing a pipeline from the Great Lakes to an arid out-of-Basin area. 

Such an outcome could be like manna from heaven for southern arid States as they might argue like the Water District in the Tarrant case:

” [The strain on western water supplies] makes appropriations by arid western states from water rich neighboring states essential, but by encouraging the ‘tendencies toward economic balkanization’ that the Commerce Clause was intended to prevent, the decision below may make such appropriations effectively impossible. Localities blessed with substantial water reserves now are free, under the Tenth Circuit’s rule, to hoard water while their immediate neighbors go dry.”  Pet. at 26.

Clearly, with water supplies becoming more scarce in arid States, they have an increased interest in tapping into States with abundant water resources.  We will track this case and provide more information when it becomes available. 

About Brian J. Considine

Brian J. Considine is a Senior Attorney with Dawda, Mann, Mulcahy & Sadler, PLC. He concentrates his practice in the areas of corporate environmental counseling, commercial real estate due diligence and environmental/toxics litigation. His practice also includes counseling clients on Federal Motor Vehicle Safety Standards.


  1. Thank you for the article on the Tarrant case argued this week before the U.S. Supreme Court. While your article is generally correct, there are a couple of things that must be pointed out. At FLOW we continue to review, evaluate water policy, energy, and land issues that threaten, systemically or individually, the Great Lakes, the ecosystem, and public uses and waters protected by the public trust doctrine. First, for interstate commerce clause arguments to be raised, there must be mutual statutes or a compact between or among states that treats water as an “article of commerce.” The compact in Tarrant certainly does this, requiring allocations and transfer of certain waters between the states. In this situation, a state cannot erect a barrier to the commerce created by the compact, at least not without a defense based on conservation or environmental grounds considered valid and to outweigh burden on commerce. The Great Lakes Compact is an entirely different scheme, and does not allow diversions or transfer, and specifically does not treat water as an article of commerce. Second, the Great Lakes are subject to public trust principles (Illinois Central Railroad v Illinois (U.S. 1892), and the Great Lakes Compact recognizes the waters of the Basin are “a public resource held in trust.” Accordingly, Tarrant should not affect or undermine the Great Lakes Compact. Third, the Great Lakes Charter did not set up the system of notice and approval by governors of the eight Great Lakes states. The Federal Water Resources Development Act of 1986 (amend. 2000) did, banning all diversions or exports of water from the Basin unless consented to by all eight governors. Fourth, because the FWRDA is a federal law and the Great Lakes Compact has the force of federal law and expression of Congressional intent, the ban on diversions (or exports) is federal law, and therefore an expression of federal intent that finds the basis for the ban on diversions valid and consistent with the commerce clause, or justified so as not to constitute a violation. Of course, all of this said, your concern for the “spill over effect” of language coming from the Tarrant decision is valid and should be carefully monitored. We all know how “dicta” can be repeated often enough that it is thought to be the law. Again, thank you.

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