Tarrant Reg’l Water Dist. v. Herrmann

The congressionally-sanctioned Red River Compact allocates water rights among Oklahoma, Texas, Arkansas, and Louisiana. The governed area is divided into five “Reaches,” each divided into smaller subbasins. Because Louisiana lacks suitable reservoirs to store water during high flow periods and the upstream states were unwilling to release stored water to benefit the downstream state, Reach II granted control over the water in upstream subbasins 1 through 4 to the states in which each subbasin is located and gives the states equal rights to subbasin 5 waters when the flow is 3,000 cubic feet per second (CFS) or more, “provided no state is entitled to more than 25 percent of the water in excess of 3,000″ CFS. States are entitled to continue intrastate water administration. Tarrant is a state agency providing water to north-central Texas. After unsuccessfully attempting to purchase water from Oklahoma and others, Tarrant sought a permit from the Oklahoma Water Resources Board (OWRB) to take surface water from a tributary of the Red River in Oklahoma’s portion of subbasin 5. Knowing that Oklahoma effectively prevents out-of-state applicants from taking or diverting water from within Oklahoma, Tarrant sought to enjoin enforcement of state statutes on grounds that they were preempted by federal law (the Compact) and violated the Commerce Clause by discriminating against interstate commerce in unallocated water. The district court granted summary judgment for the OWRB; the Tenth Circuit affirmed. A unanimous Supreme Court affirmed. The Compact does not preempt the Oklahoma statutes. Interstate compacts are construed under contract law principles; the Compact, silent on the topic, is ambiguous regarding cross-border rights, so the Court looked to “the well-established principle that States do not easily cede their sovereign powers,” the fact that other interstate water compacts have treated cross-border rights explicitly, and the parties’ course of dealing. The Oklahoma statutes do not violate the Commerce Clause; the water is not unallocated.

Tarrant Reg’l Water Dist. v. Herrmann