Courts aren’t best equipped to settle water wars like Texas-Oklahoma dispute

Posted Tuesday, May. 14, 2013  comments  Print Reprints

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On April 23, Texas and Oklahoma squared off in a Supreme Court battle over water rights that has the drought-ridden West on edge.

At issue is a state’s control over its own water: Texas, specifically the Tarrant Regional Water District, seeks to buy or otherwise tap water from Oklahoma under the terms of an interstate water compact, actions that Oklahoma has so far refused to permit despite the compact.

Interstate water agreements provide the legal foundation for the economies of most Western states, which are disproportionately dependent on irrigated agriculture. But the Texas-Oklahoma squabble is merely the latest in a string of interstate water disputes nearly as old as the settlement of the American West.

Now as in the past, demand for water in the arid West far outstrips supply, and the outdated compact system for determining who gets how much water risks leaving the region high and dry.

The Constitution’s primary mechanism for dividing shared water resources among states — the interstate compact — has proved inadequate to deal with situations in which water is extremely scarce. Most compacts lack credible means of enforcement, and monitoring water use is both expensive and difficult for cash-strapped states.

In the case of Texas and Oklahoma, what’s at issue is whether an Oklahoma law barring the transfer or sale of water to another state is at odds with the Red River Compact, which divvies up water among Texas, Oklahoma and their neighbors. Texas has another battle looming with New Mexico, which it says is pumping more than its fair share of Rio Grande water.

But even this two-front water war pales in comparison with the long-running feud between California and its neighbors over the seven-state Colorado River Compact, which underpins Southern California’s economy.

This compact was signed in 1922, and the first lawsuit was filed barely 10 years later. Despite repeated attempts to negotiate a final agreement, the interstate water wars over the Colorado continue.

Yet the courts are not well-equipped to reconcile the many conflicting technical and political issues needed to resolve the West’s water wars.

States base their water laws on a variety of different, often mutually contradictory legal principles, so that upholding one state’s claims often risks invalidating another’s legal system, which courts are understandably reluctant to do. So the courts craft their opinions as carefully and narrowly as possible, settling particular points of law rather than the interstate water disputes themselves.

Nor are the other branches of government much help. Congress’ state-based system of representation makes it very difficult for members to agree to legislation that would damage the interests of any one state.

Because states are guaranteed a certain number of representatives no matter their population, rural agricultural constituencies are disproportionately represented. For farmers, issues involving water are especially contentious.

The executive branch, meanwhile, has no single department or agency responsible for water resource issues. Although many Western water issues are handled by the Department of the Interior, the Army Corps of Engineers, the Environmental Protection Agency and other entities also play a major role.

The president and Congress, despite the political and organizational barriers, can take steps to help end America’s water wars.

First, Congress should restore funding for the U.S. Water Resources Council and the regional River Basin Commissions. Before they were de-funded during the Reagan administration, these bodies served as focal points for water policy and as useful platforms for dialogue between states and the federal government.

By fostering sustained, structured communication among Washington and the states themselves, they can help prevent disputes from arising in the first place.

Second, the president should appoint special mediators to resolve interstate water disputes, so that states have an alternative to resorting to the courts.

Herbert Hoover played such a role before being elected president, and his efforts were crucial to fostering initial discussions among the seven states that share the Colorado River.

America’s West has always been a place of promise and possibility. But unless national leaders enhance their efforts to work with states to resolve the region’s bitter water wars, the West might soon be coming up dry in its efforts to build a sustainable future.

Scott Moore is a research fellow with the Sustainability Science Program and Belfer Center for Science and International Affairs at Harvard University.

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