(Published in the Tulsa World, May 26, 2013)
Tensions between Texas and Oklahoma are a notch higher than the usual football rivalry these days. The cause: water rights and whether Texas should be able to access water from within Oklahoma’s borders.
Last month, the Supreme Court heard oral arguments in Tarrant Regional Water District v. Rudolf John Herrmann, et al, the Red River Compact case. A decision is expected by the end of June. If the justices side with Tarrant, both Oklahoma and Texas will win. If they side with Oklahoma, both sides – and many other parts of the nation – will lose.
There is a reason that 35 years ago, Oklahoma joined with Arkansas, Louisiana and Texas in signing the Red River Compact. It was and remains a good deal for our state, locking in access to Texas water for our arid west in return for Texas’ access to surplus sources that we will never need.
The case is about a section of the Red River basin between Denison Dam and the Arkansas border and close to the river itself (in one part, for example, south of Lake Hugo). Some have confused it with the Lake Sardis controversy 40 miles to the north, which is unrelated.
Oklahoma guaranteed Texas access to 25 percent of the water above a certain minimum. We kept 25 percent for ourselves. The rest went to Arkansas and Louisiana downstream. In other words, we guaranteed water from our water-rich southeast to rapidly growing and water-challenged northeast Texas.
At the same time, for parts of the river entirely in its territory, Texas agreed to restrictions on damming the Oklahoma-bound flow in one stretch and reserved specified portions of the flow for Oklahoma in another. The result was that Texas guaranteed water to some of the driest parts of our state.
It was a fair trade – and for Oklahoma a shrewd one.
In all the political talk around the Tarrant case, a missing question has been, how much water does Oklahoma need – and where do we need it?
Every day 34 million acre-feet of water flow out of Oklahoma in excess of all Oklahoma water uses. By contrast, 13.5 million acre-feet of water flow through the Colorado River every day. The Colorado’s flow provides water for Salt Lake City, Las Vegas, Phoenix, Tucson and all of Southern California from Los Angeles to San Diego and agricultural areas along the way. Then it enters Mexico where still more communities and farmland depend on it.
In other words, Oklahoma will never come close to needing all the water reserved to it under the Red River Compact, much less the water reserved for Texas.
Short of water
And where we are short of water – in the western half of the state – it is much cheaper and practical to get it from Texas and other states, which is why we have locked up most out-of-state flows into that region in interstate compacts.
The Tarrant case came about, because, to access its full allotment east of Denison Dam, Texas must reach across state lines. As a precaution, the Red River Compact had made clear that each state was giving the other rights only to a share of water within the basin, not police powers on its stream or the authority to impose its environmental standards on the other. Only water.
The 10th Circuit misread this “only water” provision to say that neither state needed to give the other its water either. In effect, the court said that one provision in the agreement repealed the entire agreement the moment the agreement was signed.
A bigger problem was that, in different language, the same reservation-of-powers section appears in most of the West’s more than 20 water compacts. Repeal one and you repeal them all. Lawsuits and state-based protectionism will rule the day, not these meticulously negotiated agreements passed by state legislatures and Congress.
Worse, if the Supreme Court allows the 10th Circuit decision to stand, water disputes will be worked out at the federal level in Congress. State sovereignty will be further eroded.
To bolster their weak case, Oklahoma’s attorneys took the Groucho Marx approach: “I have principles; if you don’t like them, I have others.” They argued that, even without that language, the Red River Compact couldn’t have meant that Texas could access water in Oklahoma. No compact allows cross border water access, they said, without specifically saying so and defining exactly where the water could be taken.
Apparently they hadn’t looked into the Rio Grande Compact, for example. That agreement contains no cross-border language, but under it El Paso diverts water at the Mesilla Dam in New Mexico. And almost none of the compacts with cross-border language names the place to be tapped.
Some have laughed that Texans don’t want to drink the Red River’s salty water, which trivializes a serious issue on which the future of Oklahoma as well as Texas depends. The northeastern part of the Lone Star State includes some of the fastest-growing metropolitan areas in the nation. With new water projects requiring 20 to 40 years to be permitted and built, the region is already running late on ensuring that it can meet the expected doubling of water demand by 2050.
An offer to pay
This matters to Oklahoma because growth in the Dallas-Fort Worth-Arlington Metroplex is essential to growth up the I-35 corridor to Oklahoma City and beyond. Texas has offered to pay for Oklahoma’s water, but our government has short sightedly put a lock on the spigot.
A ruling from the Court in favor of Tarrant would uphold the intent of the Red River Compact and provide a much-needed reset in relations between Texas and us. Preemptive refusal of Texas’s access not only breaks the compact but could even bar the door to water purchases that would help Oklahoma and its citizens as much as does the sale of our oil.
Both states win with victory in the Supreme Court for Tarrant. Neither will be left high and dry.