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Tarrant Regional Water District v. Herrmann

ELR Citation: 43 ELR 20127
Nos. 11-889, (U.S., 06/13/2013)

The U.S. Supreme Court held that Oklahoma statutes that favor in-state water appropriation permit applicants over out-of-state permit applicants do not violate the Commerce Clause and are not preempted by the Red River Water Compact—an interstate water compact that allocates water among Texas, Oklahoma, Arkansas, and Louisiana. The case arose after a Texas water district sought permits to appropriate water from Oklahoma for use in Texas. Knowing that Oklahoma's water agency would likely deny the application because Oklahoma water law effectively prevents out-of-state applicants from taking or diverting water from within Oklahoma's borders, the water district filed suit in federal court simultaneously with its permit application, seeking to enjoin Oklahoma's enforcement of the state statutes. The water district argued that the statutes were preempted by federal law because they prevent Texas from exercising its rights under the compact. But the compact does not create any cross-border rights in signatory states. The water district also argued that the statutes discriminated against interstate commerce in violation of the Commerce Clause by preventing water left unallocated under the compact from being distributed out of state. But the Oklahoma water statutes cannot discriminate against interstate commerce with respect to unallocated waters because the compact leaves no waters unallocated. Sotomayor, J., delivered the opinion for a unanimous Court.