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Tarrant Regional Water District v. Herrmann

ELR Citation: 41 ELR 20290
Nos. 10-6184, (10th Cir., 09/07/2011)

The Tenth Circuit held that Oklahoma statutes that favor in-state water appropriation permit applicants over out-of-state permit applicants do not violate the Commerce Clause. The case arose after a Texas water district sought permits to appropriate water from Oklahoma for use in Texas. Because Oklahoma's statutes treat permits for in-state and out-of-state water use differently, the Texas water district argued that the statutes restrict interstate commerce in water in violation of the Commerce Clause. But the Red River Water Compact—an interstate water compact that apportions water among Texas, Oklahoma, Arkansas, and Louisiana—insulates Oklahoma's statutes from dormant Commerce Clause challenges. The Compact, ratified by Congress in 1980, gives Compact states unrestricted authority to regulate their apportioned water. Nor does the Compact preempt Oklahoma's statutes. Rather, key provisions in the Compact are evidence of Congress’ consent to, not preemption of, state water regulations.