Tarrant Reg'l Water Dist. v. Herrmann

• Decision Date: 13 June 2013
• Docket Number: No. 11–889.,11–889.
• Parties: TARRANT REGIONAL WATER DISTRICT, Petitioner v. Rudolf John HERRMANN et al.
• Court: U.S. Supreme Court

569 U.S. 614

133 S.Ct. 2120

186 L.Ed.2d 153

TARRANT REGIONAL WATER DISTRICT, Petitioner

v.Rudolf John HERRMANN et al.

No. 11–889.

Supreme Court of the United States

Argued April 23, 2013.

Decided June 13, 2013.

Charles A. Rothfeld, Washington, DC, for Petitioner.

Ann O'Connell, for the United States, as amicus curiae, by special leave of the Court, supporting the Petitioner.

Lisa S. Blatt, Washington, DC, for Respondents.

Kevin L. Patrick, Scott C. Miller, Patrick, Miller, Kropf, & Noto, P.C., Aspen, CO, Clyde A. Muchmore, Harvey D. Ellis, L. Mark Walker, Crowe & Dunlevy, Oklahoma City, OK, Charles A. Rothfeld, Counsel of Record, Timothy S. Bishop, Michael B. Kimberly, Mayer Brown LLP, Washington, DC, for Petitioner.

E. Scott Pruitt, Attorney General, Patrick R. Wyrick, Solicitor General, Oklahoma Attorney, General's Office, Oklahoma City, OK, Charles T. DuMars, Esq., Law & Resource Planning Associates, P.C., Albuquerque, NM, Lisa S. Blatt, Counsel of Record, Andrew T. Karron, Sarah M. Harris, R. Reeves Anderson, Arnold & Porter LLP, Washington, DC, for Respondents.

Justice SOTOMAYOR delivered the opinion of the Court.

The Red River Compact, (or Compact), 94 Stat. 3305, allocates water rights among the States within the Red River basin as it winds through Texas, Oklahoma, Arkansas, and Louisiana. Petitioner Tarrant Regional Water District (Tarrant), a Texas agency, claims that it is entitled to acquire water under the Compact from within Oklahoma and that therefore the Compact pre-empts several Oklahoma statutes that restrict out-of-state diversions of water. In the alternative, Tarrant argues that the Oklahoma laws are unconstitutional restrictions on interstate commerce. We hold that Tarrant's claims lack merit.

I

A

The Red River (or River) begins in the Llano Estacado Mesa on the border between New Mexico and Texas. From this broad plain, it first runs through the Texas Panhandle and then marks the border between Texas and Oklahoma. It continues in an easterly direction until it reaches the shared border with Arkansas. Once the River enters Arkansas, it turns southward and flows into Louisiana, where it empties into the Mississippi and Atchafalaya Rivers.

As an important geographic feature of this region, the Red River has lent its name to a valley, a Civil War campaign, and a famed college football rivalry between the Longhorns of Texas and the Sooners of Oklahoma. But college pride has not been the only source of controversy between Texas and Oklahoma regarding the Red River. The River has been the cause of numerous historical conflicts between the two States, leading to a mobilization of their militias at one time, Oklahoma v. Texas, 258 U.S. 574, 580, 42 S.Ct. 406, 66 L.Ed. 771 (1922), and the declaration of martial law along a stretch of the River by Oklahoma Governor "Alfalfa Bill" Murray at another, see Okla. H. Res. 1121, 50th Legislature, 2d Sess. (2006) (resolution commemorating "Alfalfa Bill" Murray's actions during the "Red River Bridge War"). Such disputes over the River and its waters are a natural result of the River's distribution of water flows. The River's course means that upstream States like Oklahoma and Texas may appropriate substantial amounts of water from both the River and its tributaries to the disadvantage of downstream States like Arkansas and especially Louisiana, which lacks sufficiently large reservoirs to store water.

Absent an agreement among the States, disputes over the allocation of water are subject to equitable apportionment by the courts, Arizona v. California, 460 U.S. 605, 609, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983), which often results in protracted and costly legal proceedings.

Thus in 1955, to forestall future disputes over the River and its water, Congress authorized the States of Arkansas, Louisiana, Oklahoma, and Texas to negotiate a compact to apportion the water of the Red River basin among themselves. See Act of Aug. 11, 1955, Pub.L. 346, 69 Stat. 654. These negotiations lasted over 20 years and finally culminated in the signing of the Red River Compact in 1978. Congress approved the Compact in 1980, transforming it into federal law. See Act of Dec. 22, 1980, 94 Stat. 3305; Compact, 1 App. 7–51.

One of the Compact's principal purposes was "[t]o provide an equitable apportionment among the Signatory States of the water of the Red River and its tributaries." § 1.01(b), id., at 9. The Compact governs the allocation of water along the Red River and its tributaries from the New Mexico and Texas border to its terminus in Louisiana. §§ 2.12(a)-(e), id., at 13. This stretch is divided into five separate subdivisions called "Reach[es]," ibid., each of which is further divided into smaller "subbasins," see, e.g., §§ 5.01–5.05, id., at 22–26 (describing subbasins 1 through 5 of Reach II). (See Appendix A, infra, for a map.)

At issue in this case are rights under the Compact to water located in Oklahoma's portion of subbasin 5 of Reach II, which occupies "that portion of the Red River, together with its tributaries, from Denison Dam down to the Arkansas–Louisiana state boundary, excluding all tributaries included in the other four subbasins of Reach II." § 5.05(a), 1 App. 24–25. (See Appendix B, infra, for a map.) The Compact's interpretive comments¹ explain that during negotiations, Reach II posed the greatest difficulty to the parties' efforts to reach agreement. Comment on Art. V, 1 App. 27. The problem was that Louisiana, the farthest downstream State, lacks suitable reservoir sites and therefore cannot store water during high flow periods to meet its future needs. The upstream States (Texas, Oklahoma, and Arkansas), which control the River's flow, were unwilling to release water stored within their own reservoirs for the benefit of any downstream States, like Louisiana. Without any such release, there would be no guaranteed flow of water to Louisiana.

The provisions of the Compact relating to Reach II were crafted to address this problem. To this end, Reach II was divided into five subbasins. The upstream subbasins, numbered 1 through 4, were drawn to end at "existing, authorized or proposed last downstream major damsites," see, e.g., § 5.01(a), id., at 22, on the tributaries leading to the Red River before reaching the main stem of the River. These dams allow the parties managing them to control water along the tributaries before it travels farther downstream and joins the flow of the main stem of the River. For the most part, the Compact granted control over the water in these subbasins to the States in which each subbasin is located.² The remaining subbasin, subbasin 5, instead requires that water be allowed to flow to Louisiana through the main stem of the River at certain minimum levels, assuring Louisiana an allocation of the River's waters and solving its flowthrough problem.

The provision of the Compact central to the present dispute is § 5.05 (b)(1), which sets the following allocation during times of normal flow:

"(1) The Signatory States shall have equal rights to the use of runoff originating in subbasin 5 and undesignated water flowing into subbasin 5, so long as the flow of the Red River at the Arkansas–Louisiana state boundary is 3,000 cubic feet per second [hereinafter CFS] or more, provided no state is entitled to more than 25 percent of the water in excess of 3,000 [CFS]."³ Id., at 25.

In these normal circumstances (i.e., when flows at the Arkansas–Louisiana border are above 3,000 CFS), this provision and its interpretive comment make clear that "all states are free to use whatever amount of water they can put to beneficial use." Comment on Art. V, id ., at 30. But if the amount of water above 3,000 CFS cannot satisfy all such uses, then "each state will honor the other's right to 25% of the excess flow." Ibid . However, when the flow of the River diminishes at the Arkansas–Louisiana border, the upstream States must permit more water to reach Louisiana.⁴

Subbasin 5's allocation scheme allows upstream States to keep the water that they have stored, but also ensures that Louisiana will receive a steady supply of water from the Red River, with each upstream State contributing during times of low flow.

To ensure that its apportionments are honored, the Compact includes an accounting provision, but an accounting is not mandatory "until one or more affected states deem the accounting necessary." § 2.11, id., at 13; see Comment on Art. II, id., at 15–16. This is because the "extensive gaging and record keeping required" to carry out such an accounting would impose "a significant financial burden on the involved states." Id., at 16. Given these costs, the signatory States did "not envisio[n] that it w[ould] be undertaken as a routine matter."Ibid. Indeed, it appears that no State has ever asked for such an accounting in the Compact's history. See Brief for Respondents 45; Reply Brief 11–12.

While the Compact allocates water rights among its signatories, it also provides that it should not "be deemed to ... [i]nterfere with or impair the right or power of any Signatory State to regulate within its boundaries the appropriation, use, and control of water, or quality of water, not inconsistent with its obligations under this Compact." § 2.10, 1 App. 12. Rather, "[s]ubject to the general constraints of water availability and the apportionment of the Compact, each state [remains] free to continue its existing internal water administration." Comment on Art. II, id., at 14. Even during periods of water shortage, "no attempt is made to specify the steps that will be taken [by States to ensure water deliveries]; it is left to the state's internal water administration." Ibid.

B

In the years since the Red River Compact was ratified by Congress, the region's population has increased dramatically. In particular, the population of the Dallas–Fort Worth metropolitan area in north Texas has grown from roughly 5.1 million inhabitants in 2000 to almost 6.4 million in 2010, a jump of over 23...