Tarrant Regional Water District v. Herrmann

In the absence of express language creating cross-border rights to water located entirely within one state, the Red River compact does not preempt Oklahoma state water statutes from discriminating against out of state takers. The dormant Commerce Clause is not violated by Oklahoma's water statutes even though they have a discriminatory effect on the interstate commerce of water.

Petitioner, a water agency in Texas, sought a permit from Respondent, which enforces Oklahoma water law, to take water in Oklahoma created by a tributary of the Red River. The Red River Compact, of which Texas and Oklahoma are signatories, allocates and regulates the water rights to the Red River basin and its tributaries. The Compact is silent as to whether it creates a cross-border right allowing parties in one member state to take water entirely within another member state. The federal district court granted summary judgment against Petitioner’s claim that the Compact preempts Oklahoma state law barring their cross-border taking of water not allocated under the Compact. The Tenth Circuit affirmed.

The Supreme Court affirmed and found that the Red River Compact is silent on cross-border rights. The Court analyzed three factors to interpret the Compact and find that it does not create any cross-border right to “unallocated water:” (1) the presumption that states do not cede sovereign power absent express action; (2) that other compacts create cross-border rights through express language; and (3) that in the twenty-seven years prior to Petitioner’s claim no one ever claimed cross-border rights to water not allocated under the Compact. Finally, the state law does not violate the dormant Commerce Clause because water not allocated under the Compact is expressly reserved to use by each state.