Between 1920 and 1980, various combinations of states negotiated 26 interstate water-allocation compacts, primarily in the now-rapidly growing West. The compacts provided the legal infrastructure for guaranteeing a steady availability of water to explosively growing urban regions such as Southern California, Phoenix and Tucson, Las Vegas and Reno, Salt Lake City, Atlanta and others. At the same time, in such rural regions as northern Oklahoma, western Kansas and eastern Colorado, hundreds of small communities as well as farmers and ranchers count on the integrity of these compacts.
In September 2011, the Tenth Circuit Federal Court of Appeals issued a decision that, if it stands, could throw this intricate web of agreements into chaos.
The ruling came in a case that pitted the Texas water districts serving the Dallas-Fort Worth Metroplex and other communities against Oklahoma. It involved water from the Red River, which marks most of the Texas-Oklahoma border before flowing into Arkansas and Louisiana.
Put simply, the compact among the four states guarantees each a quarter of the flow from the river and its tributaries beyond an untouchable (for environmental purposes) minimum. But the river itself is not actually in Texas. The Oklahoma state line is the high water mark on the Texas side. And Texas’ tributaries don’t carry anything near the state’s allotment. So, under the compact, the Texas communities must go into Oklahoma for their water. Beginning in 2004, Oklahoma said they couldn’t.
In late 2011, the Tenth Circuit took a provision of the Red River Compact intended to protect state rights in areas like state police authority and pollution prevention and applied it to Texas’s access to the water it was due. The problem was that similar language is in many — if not most — interstate water compacts. So the court effectively nullified them all. Wyoming has asserted the right to block rapidly growing Denver from tapping Wyoming flows.
So here is the problem — and it’s a big one. Water is the West’s single most critical and historically most fought-over resource. If the high court upholds the Tenth Circuit, who will be left to put back together sixty years of compacts? Only Congress. The fights could continue for decades.
Price is the mayor of Fort Worth, Texas and Cluck is the mayor of Arlington, Texas.