You are here: home   Blogs   The GOAT Blog   Is the future of Western water in jeopardy?
The GOAT Blog

Is the future of Western water in jeopardy?

Document Actions
Tip Jar Donation

Your donation supports independent non-profit journalism from High Country News.

Stephanie Paige Ogburn | Oct 22, 2012 06:00 AM

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:

Beaver CreekIn 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?

Cache CreekRob 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.

Images of Beaver Creek and Cache Creek, two of the Oklahoma streams that Tarrant Regional Water District wants to tap, courtesy Flickr users Clinton and Charles Robinson and Granger Meador.

Steve Snyder
Steve Snyder
Oct 23, 2012 02:13 PM
I had noticed the single author trolling for support myself, yes. That said, it would be cool, in one way, if we WERE on the verge, potentially, of water anarchy. The West would have a chance to take a fresh hard look at things. Of course, it would probably do a combination of punting the issue and throwing massive amounts of money around to pay people off. (That might not be bad, either. Wyoming as a state might be smart to sell its upper Colorado water rights to the highest bidder downstream.)
Jim Vance
Jim Vance
Oct 30, 2012 04:57 PM
All part of the developer-funded Tea Party blather to stir up the like-minded crowd and perhaps start up a larger bandwagon to overturn or invalidate those pesky prohibitions against stealing someone else's water because all of yours is far overcommitted and the development gravy train needs a boost to keep it going.

Email Newsletter

The West in your Inbox

Follow Us

Follow us on Facebook! Follow us on Twitter! Follow our RSS feeds!
  1. Rancher vs BLM: a 20-year standoff ends with tense roundup |
  2. Photos of a standoff | Armed militia members join a Nevada rancher to pro...
  3. The energy haves and have-nots | Will rooftop solar owners get off the grid — and...
  4. Why homes are lost to wildfire | This Forest Service expert says it's as much a soc...
  5. The future of the Sacramento Delta hangs in the balance | But few Californians seem to grasp what is at stak...
  1. Why homes are lost to wildfire | This Forest Service expert says it's as much a soc...
  2. Photos of a standoff | Armed militia members join a Nevada rancher to pro...
  3. The energy haves and have-nots | Will rooftop solar owners get off the grid — and...
  4. Will the Colorado River reach the Gulf of California once more? | Photographs of last month's historic water pulses....
  5. Locals resist a Bakkenization of the Beartooths | South-central Montanans oppose new drilling, forew...
 
© 2014 High Country News, all rights reserved. | privacy policy | terms of use | powered by Plone