Tarrant Regional Water Dist. v. Herrmann

Background

A Texas public water agency, Tarrant Regional Water District, sought to take large amounts of surface water from the Kiamichi River in Oklahoma to supply north Texas. Oklahoma law requires permits and special review for any out-of-state water taking. Tarrant argued the Red River Compact — the agreement among Texas, Oklahoma, Arkansas, and Louisiana that divides Red River basin water — gave it a cross-border right to use water located in Oklahoma. The Oklahoma Water Resources Board denied the permit and the lower courts sided with Oklahoma.

Reasoning

The Court examined the Compact's text and history and rejected Tarrant's reading that silence about borders created an unrestricted shared pool. The Justices explained that States generally keep control over water inside their borders, other interstate compacts spell out cross-border rights when intended, and the parties’ long practice showed no one had treated the Compact as granting cross-border takings. The Court found the Compact does not give each State a right to cross into another State and take water, and therefore Oklahoma’s permit laws are not overridden. The Court also rejected Tarrant’s claim that Oklahoma’s laws violated rules against discriminating in interstate commerce because the Compact leaves no water “unallocated” for out-of-state takings.

Real world impact

Oklahoma keeps primary authority to regulate and deny out-of-state water permits for water physically located inside its borders. Tarrant and similar applicants must follow state permitting and cannot rely on the Compact to take Oklahoma water without the State’s permission. The ruling leaves the Compact’s accounting procedures and state-level remedies as the proper path to resolve allocation disputes.