In October 2011, I wrote in American Water Intelligence about the decision by the US Court of Appeals for the Tenth Circuit in Tarrant Regional Water District v. Hermann. Last week the US Supreme Court granted certiorari and will hear the case this session. My article from October 2011 is below for background. The case presents an interesting dispute regarding transboundary water management.
On February 10, the US National Oceanic and Atmospheric Administration (NOAA) published new maps showing drought conditions across the southeastern US. States that are experiencing particular drought include Texas, Louisiana, Arkansas, Georgia and Florida. In all of these states except Arkansas, drought is expected to persist or worsen over the spring of 2011 and possibly beyond.Combined with the drought and possible effects of climate change are demographic and regulatory challenges facing water supplies, including population growth in the Texaplex cities (Houston, Dallas, Fort Worth, Austin and San Antonio) and litigation in federal court that is limiting access by metropolitan Atlanta to Lake Lanier.
These challenges collectively mean that the southeastern states, which only recently emerged from a multi-year drought, will need to continue developing their physical, institutional and legal infrastructure for water supplies. There is likely to be appropriate emphasis on water use efficiency, recycling, desalination, conjunctive use and interbasin transfers. Texas, Georgia and Florida are likely to be the most active. Texas has the clearest path, while both Georgia and Florida are tied up in interstate stream litigation with Alabama. Water resource managers and strategic advisors certainly are living in interesting times.
While most water disputes in the United States have historically been located in the west, there are an increasing number of eastern disputes as well. In fact, the US Supreme Court issued two new decisions in late January regarding interstate water litigation, and both were located in the east. One of those cases opened the gate for non-state entities to participate directly as parties in interstate litigation before the Supreme Court, while the other seems to have closed the gate at least partially on interstate groundwater disputes.