The Tenth Circuit Court of Appeals has upheld a district court dismissal of lawsuits filed by the Tarrant Regional Water District, a Texas state agency, and the City of Hugo, Oklahoma, seeking to invalidate Oklahoma state laws that allegedly restrict allocation of permits for out-of-state water. Tarrant Reg’l Water Dist. v. Herrmann, No. 10-6184 (10 Cir. 9/7/11). The complaints allege that the Oklahoma laws unconstitutionally restrict interstate commerce under the U.S. Constitution’s Commerce Clause. Regional water allocation is already governed by an inte

rstate compact. Negotiated by Arkansas, Louisiana, Oklahoma, and Texas, it was ratified by Congress in 1980. In 2009, Oklahoma responded to increasing demand for the state’s surface water by passing legislation to protect its authority to allocate its water.  

The district court and then the Tenth Circuit ruled that the interstate compact’s terms largely resolved the issue by giving Oklahoma “wide latitude to regulate interstate commerce.” The courts also rejected arguments that a section of the compact preempted some Oklahoma state laws. According to the appeals court, the compact “gives congressional consent to the states to adopt measures protecting their water apportionments that might otherwise violate” the Commerce Clause.