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53 Infrastructure 1 (2013-2014)

handle is hein.journals/infrastr53 and id is 1 raw text is: stric tulre
Vol. 53, No. 1, Fall 2013
Water Diversion Rights Limited in
Red River Decision
By Rene Ruiz

exas's long-running efforts to import water from
Oklahoma have come up dry. In a unanimous
decision delivered by Justice Sotomayor-Tar-
rant Regional Water Dist. v. Hermann et al., 569 U.S.
(2013), the United States Supreme Court affirmed the
decision of the Tenth Circuit and held that the Red River
Compact (Compact) does not give Texas the right to
take water apportioned to Texas from a tributary located
in Oklahoma. The Court also held that Oklahoma's
water statutes, which virtually prohibit the exporta-
tion of surface water from the state, cannot discriminate
against interstate commerce with respect to waters that
have been fully allocated under the Compact. While the
decision is limited to the waters governed by the Red
River Compact, it could have an impact on other inter-
state water compacts with respect to
the existence of cross-border diver-
sion rights and interstate commerce
challenges.
The Red River begins on the bor-
der between New Mexico and Texas,
runs through the Texas panhandle,
and then marks the border between
Texas and Oklahoma. The river con-
tinues east into Arkansas then turns
southward and flows into Louisiana       Rene Ruiz
Rene Ruiz is a shareholder in Cox Smith Matthews, Inc.,
with offices in San Antonio, Dallas, Austin, McAllen, and El
Paso, Texas. His practice focuses on matters involving water,
representing clients before state and local regulatory agencies,
and counseling parties to public-private transactions or
litigation.

where it empties into the Mississippi and Atchafalaya
rivers. The interstate course of the Red River means that
upstream users such as Texas and Oklahoma can con-
trol the flow of the river by taking substantial amounts
of water from the river and its tributaries to the disad-
vantage of downstream states such as Arkansas and
Louisiana.
To promote interstate comity and attempt to remove
causes of controversy between each of the affected
states, in 1955 Congress authorized the states of Texas,
Oklahoma, Arkansas, and Louisiana to negotiate a
continued on page 9

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