Is the future of Western water in jeopardy?
Updated 10/22/2012, 12:14 p.m., MDT
"Supreme Court decision could lead to ‘water anarchy’ in the West"
"U.S. on the verge of water anarchy"
"Utah's water future in court"
"Ruling key to Colorado water future"
"Upcoming ruling key to New Mexico's water future"
These headlines, splashed across major Western newspapers in recent weeks, and in the influential website Politico and the environmental news site Grist just last week, sound alarming.
As an intrepid High Country News editor covering natural resource issues in the West, I decided to check them out. After all, water anarchy in the West is certainly worth some column-inches, right?
A few clicks told me that the headlines all have one source. His name is James Oliver, and he's the general manager of the Tarrant Regional Water District, in north Texas near Fort Worth. In the past few weeks, Oliver has blanketed major Western papers with versions of this alarmist tale. Here's the back story:
In 2002, the state of Oklahoma put a moratorium on selling its water to other states, because of worries about drought and growth. In 2007, the Tarrant Regional Water District, which wanted some of that Oklahoma water, which that part of the state sees as essential to its ability to grow, sued Oklahoma over that law, which it argues restricts interstate commerce.
The case went all the way to the 10th Circuit Court of Appeals, whose jurisdiction covers Wyoming, Colorado, Utah, Kansas, New Mexico and Oklahoma. In September of 2011, Texas lost the case in that court, as the 10th Circuit ruled Oklahoma doesn't have to sell them water.
That decision is now being appealed to the Supreme Court. Tarrant's general manager, Oliver, obviously hopes the Court will take it up and reverse the 10th Circuit.
In the meantime, he is out trying to persuade water managers in Western states that the 10th Circuit decision, if let stand as-is, will affect their water compacts.
Here's a quote from his piece in the Denver Post:
Last September, in a case involving Oklahoma and Texas (Tarrant Regional Water District v. Herrmann), the Tenth Circuit reread language in the Red River Compact — a compact among Arkansas, Louisiana, Oklahoma and Texas — to mean that water sharing among the signatories was voluntary, not mandatory, begging the question: Why did the states negotiate the complex agreement at all?
In short, if the Supreme Court decides not to hear this case, virtually every Western state will have no choice but to engage in what could easily become as many as two dozen massively contentious negotiations on which will turn the futures of numerous metro areas and other communities, as well as industries, agricultural regions and Indian tribes. In our factious contemporary political life, can such far-reaching interstate agreements as our water compacts, arrived at in the more placid periods, be put back together, if the courts pull them apart?
That all sounds pretty alarming. Now to the important question: Is it true?
Rob Harris, an attorney with the nonprofit Western Resource Advocates, doesn't think so.
"Each compact is a product of extensive negotiations between the states that sign them. And that's not to say that case law with one compact can never be relevant to another one, but I think that the applicability of this case to the Colorado River compact is really limited," he told me on Friday.
I also asked Burke Griggs, a lawyer for the Kansas Department of Agriculture and a water law expert who has watched the case, his opinion. In an e-mail, Griggs wrote that while he did not want to comment on the particulars of the case, he did not "really understand Mr. Oliver’s claim that if the Supreme Court declines to review the case, then all water compacts across the West are in jeopardy."
The case is different from most interstate compact cases, wrote Griggs, because it does not involve the states themselves, but rather sub-units of state government suing each other in federal district court. The lawyer also noted that the only way he sees potential impacts on other western watercompacts is if the Court both accepts the case (it hasn't yet) and issues a holding that applies to other compacts, since, as he wrote, "The Court is always careful to define the applicability of its holdings."
And most importantly, wrote Griggs, “the Supreme Court has made it very clear (in Texas v. New Mexico, concerning the Pecos River Compact) that it will not rewrite the terms of a compact, because to do so would violate the separation of powers."
So what's the reason for Oliver's full court press in the opinion pages?
According to Harris, of Western Resource Advocates, the Texas water district is looking for allies. Oliver's strategy is to get Western water mavens worried enough to take up his cause.
"He's going after again the water districts, states, anybody else that he thinks might be interested in siding with them if the Court picks up the case."
Those groups could file friend of the court briefs on Tarrant's behalf, says Harris.
"But honestly I think he's making a mountain out of a molehill here."
So there you go. Are we on the verge of water anarchy? Probably not.
Stephanie Paige Ogburn is the online editor at High Country News.
This article has been updated to incorporate comments from Burke Griggs.