Tarrant Regional filed its Petition for Rehearing En Banc on 9/22/2011.
The Journal Record
has made this document available online
. Tarrant's primary argument is as follows:
Tarrant presents a straightforward question of law, of first impression and having exceptional, widespread public importance: i.e., whether the Compact preempts Oklahoma laws obstructing Texas water-users from accessing water in Oklahoma within one, unique geographic Subbasin -- water that the RRC’s §5.05(b)(1) expressly grants Texas the equal right to use.
The Opinion construes the RRC as an absolute prohibition on any state accessing its share of water in a sister compacting state. This interpretation results in the denial of access by Texas users (and only Texas users) to even the Red River mainstem itself, since the Red River never flows into or touches Texas in Reach II, Subbasin 5 (“Subbasin 5”)(as it does the other three states), and the Subbasin’s water on Texas’ side of the River has always been so sparse that it comes nowhere close to providing “equal rights to the use” of the water as provided by §5.05(b)(1). The Opinion not only prevents Texas water-users from using water apportioned to Texas to avert an imminent water shortage, it perpetuates non-use of millions more acre feet of other water annually -- by allowing Oklahoma to continue its annual discharge of the Texas-apportioned water, along with 6,000,000 more acre feet, into the Red River where it is so contaminated by chlorides that it is unsuitable for potable use before it flows unused into the Gulf of Mexico.