Tenth Circuit Thwarts Texans’ Attempt to Access Oklahoma Water
The Tenth Circuit Court of Appeals earlier this month upheld a lower court’s dismissal of actions involving the possible interstate transfer of water from southeastern Oklahoma to fast growing communities in North Texas. A water district serving Fort Worth and nearby communities planned to purchase more than 460,000 acre-feet of water from Oklahoma tributaries of the Red River in far southern Oklahoma. The Red River is subject to an interstate Compact entered into among the States of Arkansas, Louisiana, Oklahoma and Texas in 1978. Invoking the “dormant” Commerce Clause, the water district sought to invalidate certain Oklahoma statutes regulating interstate transfers as improper burdens on interstate commerce. The panel held the Compact insulates Oklahoma water statutes from dormant Commerce Clause challenges insofar as they apply to surface water subject to the Compact. The Court also rejected the water district’s claim that the state statutes had been preempted by the Compact.