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Justices Consider Cert Petition for Momentous Water Rights Case

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by Publius
Posted December 12, 2012, 5:28 PM

In an opinion piece published in Politico, James M. Oliver, general manager of the Tarrant Regional Water District (a party in the litigation discussed), writes:

‘Water is for fighting,” Mark Twain famously said. Before November’s election, the Supreme Court could thrust Congress into the middle one of the biggest no-win fights yet in this age of gridlock — a simultaneous renegotiation of some of the nation’s most critical interstate water access agreements.

The immediate issue is a dispute between Texas (via the Tarrant Regional Water District, which serves Fort Worth and surrounding areas) and Oklahoma. Yet whether the Supreme Court accepts the case (Tarrant Regional Water District v. Herrmann) for review will determine if much of the country, from the Great Plains to the Pacific, has assured access to water in the decades ahead — or will numerous arrangements, in some cases dating back nearly a century, all become in essence dead letters.

Consider the implications.

Eighteen of the country’s fastest-growing metropolitan areas over the next decade, as projected by a Wharton School study, depend on water allocations from interstate compacts.

Also at risk is the viability of Native American nations, as well as Western farmers and ranchers whose livelihoods and very existence depend on water from interstate compacts.

These include the farmers of Southern California’s Imperial and Coachella Valley, prime sources of winter fruits and vegetables for American consumers.

Add to the casualties the shale oil, coal and petroleum producers Americans are counting on to end our dependence on imported energy.

How did so much of the country’s future come to hinge on an obscure litigation between two states?

In September, ruling on the Tarrant case, the 10th Circuit reread language in the Red River Compact — an interstate water allocation agreement among Arkansas, Louisiana, Oklahoma and Texas — to mean that water sharing among the signatories was voluntary, not mandatory — raising the question, why did the states negotiate the complex agreement at all?

The compact is one of the nation’s 26 interstate water access pacts. It was passed into state law by the four negotiating legislatures and then passed by Congress into federal law. Despite all this, according to the court, if Oklahoma doesn’t want to allow Texas to use the water set aside for it in the legislation, it doesn’t have to.

To make matters worse, the decision turned on a provision that, in various formulations, is common to many of the nation’s interstate water compacts. The provision says that when one state gives another the right to tap its water, it doesn’t give up the right to enforce state laws on the waterway, or to impose its environmental standards, or anything else — other than the water itself.

This kind of “we mean what we say and nothing more” language is in almost every major contract ever written. But, amazingly, the 10th Circuit panel read it to say that Oklahoma did not have to allow Texas the water guaranteed to it at all.

The TRWD appealed to the Supreme Court, which in April asked the Solicitor General whether it should hear the case. The Solicitor General’s brief is expected in the fall or winter and the justices’ decision will come not long after that.

If the high court denies the petition for certiorari (that is, refuses to take the case) the ruling of the 10th Circuit’s three-judge panel will become federal law in the states under the circuit’s jurisdiction — Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming — and may guide other circuits.

The implications for the American West are immense.

Through these states pass the Colorado River (source of water to cities from Denver to Salt Lake City to Phoenix and all of Southern California) and the Yellowstone River (which provides water to fracking operations in the High Plains). Even the Arkansas River, from which, ironically, northern and much of western Oklahoma receives water, comes under the ruling. Interstate water access compacts govern all three rivers. Already, Wyoming has expressed opposition to diversion of allocated water bound for the Denver region despite the Upper Colorado River Compact’s promises.

In short, if the Supreme Court decides not to hear this case, Congress will have no choice but to engage in what could easily become as many as two dozen massively contentious negotiations on which will hinge the futures of numerous metropolitan areas and other communities, as well as industries, agricultural regions and Native American tribes.

America could be on the edge of water anarchy.

 

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