Tarrant Regional Water Dist. v. Herrmann
569 U.S. ___ (2013)

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Justia Opinion Summary
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.
  • Syllabus
  • Opinion (Sonia Sotomayor)

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 .

SUPREME COURT OF THE UNITED STATES

Syllabus

TARRANT REGIONAL WATER DISTRICT v. HERRMANN et al.

certiorari to the united states court of appeals for the tenth circuit

No. 11–889. Argued April 23, 2013—Decided June 13, 2013

The Red River Compact (or Compact) is a congressionally sanctioned agreement that allocates water rights within the Red River basin among the States of Oklahoma, Texas, Arkansas, and Louisiana. The area it governs is divided into five separate subdivisions called “Reaches,” each of which is further divided into smaller “subbasins.” At issue here are rights under the Compact to water located in Oklahoma’s portion of Reach II, subbasin 5. In Reach II, the Compact—recognizing that Louisiana lacks suitable reservoir sites to store water during high flow periods and that the upstream States (Texas, Oklahoma, and Arkansas) were unwilling to release their own stored water for the benefit of a downstream State—granted control over the water in four upstream subbasins (subbasins 1 through 4) to the States in which each subbasin is located and required that water in a fifth subbasin, subbasin 5, be allowed to flow to Louisiana at certain minimum levels. Section 5.05(b)(1) of the Compact gives the States “equal rights” to the use of subbasin 5’s 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].” Under the Compact, States are also entitled to continue with their intrastate water administration.

          Petitioner Tarrant Regional Water District (Tarrant) is a Texas state agency responsible for providing water to north-central Texas and its rapidly growing population. After unsuccessfully attempting to purchase water from Oklahoma and others, Tarrant sought a water resource permit from the Oklahoma Water Resources Board (OWRB), respondents here, to take surface water from a tributary of the Red River at a point located in Oklahoma’s portion of subbasin 5 of Reach II. Knowing that the OWRB would likely deny its permit application because of Oklahoma water laws that effectively prevent out-of-state applicants from taking or diverting water from within Oklahoma’s borders, Tarrant filed suit in federal court simultaneously with its permit application, seeking to enjoin the OWRB’s enforcement of the state statutes on grounds that they were pre-empted by federal law in the form of the Compact and violated the Commerce Clause by discriminating against interstate commerce in water. The District Court granted summary judgment for the OWRB, and the Tenth Circuit affirmed.

Held:

     1. The Compact does not pre-empt the Oklahoma water statutes. Pp. 9–22.

          (a) Tarrant claims that §5.05(b)(1) creates a borderless common in subbasin 5 in which each of the signatory States may cross each other’s boundaries to access a shared pool of water. Tarrant observes that §5.05(b)(1)’s “equal rights” language grants each State an equal entitlement to subbasin 5’s waters, subject to a 25 percent cap, and argues that its silence concerning state lines indicates that the Compact’s drafters did not intend the provision to allocate water according to state borders. The OWRB counters that §5.05(b)(1)’s “equal rights” afford each State an equal opportunity to use subbasin 5’s excess water within each State’s own borders, but that its silence on cross-border rights indicates that the Compact’s drafters had no intention to create any such rights in the signatory States. Pp. 9–11.

          (b) Because interstate compacts are construed under contract-law principles, see Texas v. New Mexico, 482 U. S. 124 , the Court begins by examining the Compact’s express terms as the best indication of the parties’ intent. However, §5.05(b)(1)’s silence is, at the very least, ambiguous regarding cross-border rights under the Compact, so the Court turns to other interpretive tools to shed light on the drafters’ intent. Three things persuade the Court that the Compact did not grant cross-border rights: 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. Pp. 11–22.

               (1) The sovereign States possess an “absolute right to all their navigable waters and the soils under them for their own common use.” Martin v. Lessee of Waddell, 16 Pet. 367, 410. So, for example, “ ‘[a] court deciding a question of title to [a] bed of navigable water [within a State’s boundaries] must . . . begin with a strong presumption’ against defeat of a State’s title.” United States v. Alaska, 521 U. S. 1 . It follows, then, that “[i]f any inference at all is to be drawn from” silence in compacts touching on the States’ authority to control their waters, “it is that each State was left to regulate the activities of her own citizens.” Virginia v. Maryland, 540 U. S. 56 . Tarrant contends that §5.05(b)(1)’s silence infers that the signatory States dispensed with the core state prerogative to control water within its borders. But since States rarely relinquish their sovereign powers, the better understanding is that there would be a clear indication of such devolution, not inscrutable silence. Tarrant counters that its interpretation would not intrude on any sovereign prerogative of Oklahoma, which would retain its authority to regulate the water within its borders. But adopting Tarrant’s reading would necessarily entail assuming that Oklahoma and three other States silently surrendered substantial control over their waters when they agreed to the Compact. Pp. 14–16.

               (2) Looking to the customary practices employed in other interstate compacts also helps in ascertaining the parties’ intent. See, e.g., Alabama v. North Carolina, 560 U. S. 330 , ___. Many compacts feature unambiguous language permitting signatory States to cross each other’s borders to fulfill obligations under the compacts, and many provide for the terms and mechanics of how such relationships will operate. The absence of comparable provisions in the Red River Compact strongly suggests that cross-border rights were never intended to be part of the agreement. Tarrant claims that not all interstate compacts have such explicit language, but cites only one such compact, and even it sets out a detailed scheme that would apply to any contemplated diversions. Similarly, even if §2.05(d) of the Compact, which gives “[e]ach Signatory State . . . the right to” “[u]se the bed and banks of the Red River and its tributaries to convey stored water, imported or exported water, and water apportioned according to this Compact,” is read to establish cross-border diversions, it does so through express language, not through an inference from silence. Pp. 16–20.

               (3) The parties’ conduct under the Compact also undermines Tarrant’s position. See Alabama v. North Carolina, 560 U. S., at ___. Once the Compact was approved in 1980, no signatory State pressed for a cross-border diversion until Tarrant filed suit in 2007. And Tarrant’s earlier offer to purchase water from Oklahoma was a strange decision if Tarrant believed the Compact entitled it to demand water without payment. Nor is there any indication that Tarrant, any other Texas agency, or Texas itself previously made any mention of cross-border rights within the Compact; and none of the other signatory States has ever made such a claim. P. 20.

               (4) Tarrant’s remaining arguments—that its interpretation is necessary to realize the “structure and purpose of Reach II”; and that §5.05(b)(1)’s 25 percent cap on each State’s access to subbasin 5’s ex-cess water implies that if a State cannot access sufficient water within its borders to meet the cap, it must be able to cross borders to reach that water—are unpersuasive. Pp. 20–22.

     2. The Oklahoma water statutes also do not run afoul of the Commerce Clause. Tarrant claims that the statutes discriminate against interstate commerce by preventing water left unallocated under the Compact from being distributed out of State. But Tarrant’s assumption that some water is left “unallocated” is incorrect. The interpretive comment for Article V of the Compact makes clear that when the flow is above 3,000 CFS, “all states are free to use whatever amount of water they can put to beneficial use,” subject to the requirement that if the amount of available water cannot satisfy all of those uses, “each state will honor the other’s right to 25% of the excess flow.” If more than 25 percent of subbasin 5’s water is located in Oklahoma, that water is not “unallocated”; rather, it is allocated to Oklahoma unless and until another State calls for an accounting and Oklahoma is asked to refrain from utilizing more than its entitled share. Pp. 22–24.

656 F. 3d 1222, affirmed.

     Sotomayor, J., delivered the opinion for a unanimous Court.

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