By Marcella Bondie, LEED AP
Recently, a number of court cases about water resources have made the news. Oklahoma and Texas battled over a river; two Tribal Nations made territorial claims to water rights; and a Florida landowner chafed at restrictions on developing wetlands. Given Metropolitan Planning Council (MPC)’s water program work, these cases provide valuable lessons for our regional water supply planning and infrastructure financing strategies.
Cross-Border Water Fights
Booming urban growth and drought conditions compelled a Texas water district to sue Oklahoma for water. Texas has tried to buy water in the past, but was stymied by Oklahoma state water laws that prohibit selling water out of state. Texas, Oklahoma, Arkansas and Louisiana are part of the Red River Compact, which allocates fixed amounts of water to each state. In Tarrant Regional Water District v. Herrmann (an Oklahoma Water Resource Board official), Texas argued they should be allowed to take unallocated excess water from Oklahoma’s side of the Red River Basin. The Supreme Court unanimously voted in favor of Oklahoma, holding that states have sovereignty over water located on and under their land, and the Red River Compact does not preempt Oklahoma’s state water statutes.
Oklahoma is also involved in a water dispute with the Choctaw and Chickasaw Nations. The Nations have claimed sovereignty over surface water located on historically tribal territory. The court cases seek to determine what water rights are guaranteed to the tribes by federal treaty. Lawsuits are on hold while the governments work through negotiations. If negotiations fall through, the case could be in litigation for years.
Developing Water Resources
Koontz v. St. Johns River Water Management District focuses on wetlands, which are protected under the Clean Water Act because of their ability to filter out pollution from water and recharge groundwater reserves. Mr. Koontz wanted to develop his property—which includes protected wetlands—into a shopping mall. St. Johns asked Mr. Koontz to pay for wetlands restoration projects in another location, as one possible condition for issuing a development permit. Mr. Koontz refused, and St. Johns subsequently denied the permit.
Mr. Koontz argued that the limitations placed on him by St. Johns constituted an unlawful “taking” of his property. A taking occurs when the government has seized private property without “just compensation.” This concept extends to overly burdensome land use restrictions. However, governments are allowed to issue land use restrictions if they are closely related to the impact on the surrounding community (“nexus”) and cost to the owner is in line with the impact on the area (“rough proportionality”).
Mr. Koontz sued, and the case eventually reached the Supreme Court. The 5-4 ruling in favor of Mr. Koontz mandated that a taking could, in fact, apply to monetary payments in exchange for receiving a permit. The dissenting opinion argued that by extending the definition of takings to include monetary payments, numerous local permitting processes could be called into question. Justice Sonia Sotomayor noted, “I see an enormous flood gate here, and one in which we are sending a signal that perhaps States should be more quiet rather than more engaging,” because this ruling could encourage municipalities to reject development proposals outright, rather than risk a negotiation that could end in a lawsuit.
Lessons for Our Region
As I’ve written before, Illinois’ Lake Michigan water rights were set by a 1967 Supreme Court ruling. The Great Lakes-St. Lawrence River Basin Water Resources Compact is a more recent development. Similar to the interstate agreement between Oklahoma and Texas, the Great Lakes-St. Lawrence Compact sets the terms for how Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania and Wisconsin manage our watershed. The Great Lakes-St. Lawrence Sustainable Water Resources Agreement also includes Quebec and Ontario, Canada.
Although the Great Lakes-St. Lawrence Compact coordinates the sustainable use of water resources, it’s obvious from Tarrant v. Herrmann that interstate disputes can still arise. If demand for Lake Michigan water becomes too great, then communities could find themselves in court. In fact, Waukesha, Wisconsin—located just outside the Great Lakes watershed—is drawing fire right now for its application to connect to Lake Michigan. The Compact provides a robust process for giving the other Great Lakes states an opportunity to weigh in on any decision to take water out of the basin, and the Supreme Court ruling on Tarrant v. Herrmann makes sticking to that process especially important.
There are also plenty of Illinois communities that rely on streams and groundwater to supply their water. Illinois is governed by the Reasonable Use Rule, meaning that a landowner can withdraw any amount of water to meet their household needs, but they are limited to the “reasonable” amount for other needs (such as irrigation). Like Oklahoma and the Tribal Nations, our region may need to commit to negotiating our water supply in the future. The Illinois communities, industries and farms that rely on the shared use of rivers and groundwater will need smart growth planning and cooperation to ensure all water needs are met.
Finally, the impact of Florida’s development permit ruling remains to be seen. Municipalities need effective ways to work flexibly with new development and finance not just aging water infrastructure, but other kinds of infrastructure as well. If local governments are afraid to negotiate development by requesting permit fees and payments, how will communities be able to promote environmentally sensitive development?
MPC works on sustainable and collaborative use of our region’s water resources. Our work with the Northwest Water Planning Alliance (NWPA), an intergovernmental body that encompasses 80 communities and 1.3 million people, has fostered cooperative planning for groundwater and Fox River water users. MPC is also advocating for a revision of the Illinois plumbing code that would allow rainwater, graywater and clear water, like air conditioner condensate, to be reused for non-potable purposes, so that treated drinking water is not wasted on non-drinking purposes. In order to more sustainably finance water supply, our region should have a more accurate accounting method for water lost through leaky infrastructure, as pointed out in MPC’s report, Immeasurable Loss. Read more about MPC’s work on cross-border collaboration, interjurisdictional collaboration, and water supply management.