On June 13, 2013, Justice Sotomayer, writing for a unanimous U.S. Supreme Court, held that the Red River Compact, a Congressionally approved water-allocation agreement between Texas, Oklahoma, Arkansas, and Louisiana, does not preempt Oklahoma’s water statutes. Tarrant Regional Water Dist. v. Rudolf Herrmann, — S.Ct. —-, 2013 WL 2631063 (U.S.). Tarrant Regional Water District, a Texas agency responsible for providing water to a burgeoning north-central Texas population, sought a water resource permit from the Oklahoma Water Resources Board (OWRB) to take surface water from a tributary of the Red River.

The Red River Compact (or Compact) is a congressionally sanctioned agreement that allocates water rights within the Red River basin (see map) among the States of Oklahoma, Texas, Arkansas, and Louisiana.

The Red River Compact (or Compact) is a congressionally sanctioned agreement that allocates water rights within the Red River basin (see map) among the States of Oklahoma, Texas, Arkansas, and Louisiana.

The tributary is located in Oklahoma but within a section of the river basin to which the Compact gives the signatory states “equal rights” under certain circumstances. Knowing that Oklahoma statutes likely prohibited OWRB from granting the permit, Tarrant simultaneously brought a lawsuit to enjoin OWRB’s enforcement of the state statutes on grounds that they were preempted by federal law (the Compact). The Court analyzed the language of the Compact as well as legislative history and other sources and concluded that the Compact does not preempt Oklahoma’s water statutes because the Compact creates no cross-border rights in its signatories for these statutes to infringe. In affirming the Tenth Circuit, the Supreme Court also rejected Tarrant’s alternate argument that Oklahoma’s water statutes run afoul of the Commerce Clause.

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