Ruling risks interstate water pacts
A “neighborhood” dispute between Oklahoma and Texas could upset decades of water agreements that have facilitated the nation’s urban, agricultural and industrial growth.
At issue in Tarrant Regional Water District v. Herrmann is Oklahoma’s refusal to allow Texas to draw water to which it is entitled under the Red River Compact. The Compact was freely negotiated among Oklahoma, Texas, Arkansas and Louisiana and then enacted into federal law as an interstate compact in 1980.
Oklahoma’s action was challenged by the Tarrant County Water District (TCWD), which provides water in the Dallas Fort Worth Metroplex and nearby areas. The 10th U.S. Circuit Court of Appeals sided with Oklahoma.
There could be substantial consequences if the 10th Circuit decision is allowed to stand. A number of interstate water agreements contain provisions similar to those in the Red River Compact. The precedent could open the door for other states to rescind the most fundamental provisions in their water agreements, denying agreed-upon allocations to their neighbors.
TCWD appealed to the U.S. Supreme Court, which sought the Obama administration’s advice on whether to accept the case. In response, the U.S. Solicitor General said “yes,” and further suggested that the 10th Circuit had misconstrued critical wording in the Red River Compact. The Supreme Court will decide whether to hear the case in early January.
Across the nation, industry, agriculture and communities need predictable water supplies to justify the investment decisions on which economic growth depends. In an increasingly competitive and globalized world, some business expansions may not occur and others could go elsewhere, including outside the United States, if there is greater uncertainty about future water supplies. If agreements are unraveled, as in the case of the Red River Compact, years of litigation could follow. The stakes are illustrated by the following examples.
Over decades of negotiation, agreements were reached between Arizona, California, Colorado, Nevada, New Mexico, Utah and Wyoming covering water from the Colorado River and its tributaries. The nation’s two fastest-growing metropolitan areas with more than 4 million residents, Riverside-San Bernardino and Phoenix, depend on water under these agreements. Fast growing Denver, Las Vegas and Salt Lake City are also covered by the agreements. Add to this the more than 15 million people in Los Angeles and San Diego and it becomes clear that interstate water pacts could be at risk across much of the Southwest.
Moreover, important farming areas depend on these agreements, such as the Imperial and Coachella valleys in Southern California. The water compacts are also important to the expanding oil and natural gas sectors, which have created so many high-paying jobs.
Many more water agreements could be impacted. Overall, 26 similar interstate compacts govern allocation of water between the states.
Failure to reverse Tarrant would grant license to states to abrogate their agreements in an increasingly politicized environment. The Supreme Court should accept Tarrant Regional Water District v. Herrmann and affirm the principle that states are bound by the agreements they make, while ensuring that insufficient water supplies do not hobble economic growth.