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.

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.

High Country News Classifieds
  • FREE RANGE BISON AVAILABLE
    Hard grass raised bison available in east Montana. You harvest or possible deliver quartered carcass to your butcher or cut/wrapped pickup. Contact Crazy Woman Bison...
  • CONSERVATION ASSOCIATE - OKANOGAN LAND TRUST (NORTH CENTRAL WA)
    Do you enjoy rural living, wild places, and the chance to work with many different kinds of people and accomplish big conservation outcomes? Do you...
  • CARDIGAN WELSH CORGIS
    10 adorable, healthy puppies for sale. 4 males and 6 females. DM and PRA clear. Excellent pedigree from champion lineage. One Red Brindle male. The...
  • A CHILDREN'S BOOK FOR THE CLIMATE CRISIS!!
    "Goodnight Fossil Fuels!" is a an engaging, beautiful, factual and somewhat silly picture book by a climate scientist and a climate artist, both based in...
  • DIGITAL ADVOCACY & MEMBERSHIP MANAGER
    The Digital Advocacy & Membership Manager will be responsible for creating and delivering compelling, engaging digital content to Guardians members, email activists, and social media...
  • DIGITAL OUTREACH COORDINATOR, ARIZONA
    Job Title: Digital Outreach Coordinator, Arizona Position Location: Phoenix or Tucson, AZ Status: Salaried Job ID Number: 52198 We are looking for you! We are...
  • DESCHUTES LAND TRUST VOLUNTEER PROGRAM MANAGER
    The Deschutes Land Trust is seeking an experienced Volunteer Program Manager to join its dedicated team! Deschutes Land Trust conserves and cares for the lands...
  • ASSOCIATE DIRECTOR OF DEVELOPMENT
    The Nature Conservancy in Wyoming seeks an experienced fundraiser to join our team. We're looking for a great communicator who is passionate about conservation and...
  • INDIAN COUNTRY FELLOWSHIP
    Western Leaders Network is accepting applications for its paid, part-time, 6-month fellowship. Mentorship, training, and engaging tribal leaders in advancing conservation initiatives and climate policy....
  • MULESHOE RANCH PRESERVE MANAGER
    The Muleshoe Ranch Preserve Manager develops, manages, and advances conservation programs, plans and methods for large-scale geographic areas. The Muleshoe Ranch Cooperative Management Area (MRCMA)...
  • ARTEMIS PROGRAM MANAGER
    Founded in 1936, the National Wildlife Federation (NWF or Federation) is America's largest and most trusted grassroots conservation organization with 52 state/territorial affiliates and more...
  • ASSISTANT OR ASSOCIATE PROFESSOR OF ENVIRONMENTAL HUMANITIES
    Assistant or Associate Professor of Environmental Humanities Whitman College The Environmental Humanities Program at Whitman College seeks candidates for a tenure-track position beginning August 2023...
  • ANNUAL FUND MANAGER
    Working closely with the Foundation's leadership, the Annual Fund Manager is responsible for the oversight and management of the Foundation's annual operating fund. This is...
  • DATABASE ADMINISTRATOR
    Looking for someone who loves public land and understands the value and importance of data in reaching shared goals as part of a high-functioning team....
  • EXECUTIVE DIRECTOR
    High Country Conservation Advocates (HCCA) in Crested Butte, CO is seeking an enthusiastic Executive Director who is passionate about the public lands, natural waters and...
  • ASSOCIATE DIRECTOR OF VOLUNTEER PROGRAMS
    Are you passionate about connecting people to the outdoors? The Pacific Crest Trail Association (PCTA) is looking for someone with volunteer management experience to join...
  • EXECUTIVE DIRECTOR
    The conservation non-profit Invasive Species Action Network seeks an executive director. We are focused on preventing the human-caused spread of invasive species by promoting voluntary...
  • NEW BOOK: A FEAST OF ECSTATIC VERSE AND IMAGERY
    Dynamic fine art photographer offers use of images to raise funds. Available for use by conservation groups. Contact at www.anecstaticgathering.com.
  • WANTED: TALENTED WRITER
    Write the introduction to A Feast of Ecstatic Verse and Imagery, a book concerning nature and spirituality. Contact at www.anecstaticgathering.com. Writer who works for conservation/nature...
  • MT STATE DIRECTOR- THE WILDERNESS SOCIETY
    The Montana State Director is a member of The Wilderness Society's (TWS) Conservation program team who plays a leading role in advancing the organization's mission...