Citing drought and demand, advocacy group American Rivers is calling the… (Julie Jacobson / Associated…)
Last week, 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 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.
The stakes of the court's decision are high. 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 Now as in the past, demand for water in the arid West far outstrips supply, and the outdated compact system for determining who gets how much water risks leaving the region high and dry.
America's founders did not anticipate living in the desert. 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. For one thing, most compacts lack credible means of enforcement, and monitoring water use is both expensive and difficult for cash-strapped states. Moreover, many compacts assign each state a specific quantity of water rather than a percentage, meaning that in times of drought, each state can reasonably claim to have been denied its fair share of water. Far from settling matters, most interstate water compacts lead only to long-running legal and administrative battles.
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 for all the states' enthusiasm to sue their neighbors, the courts are not well equipped to reconcile the many conflicting technical and political issues — including long-term climactic cycles and ecological water needs — needed to resolve the West's water wars. Even the legal issues sometimes make justices uneasy: 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. With the total number of congressional representatives set at 535 (435 in the House; 100 in the Senate), and with both houses rife with procedures designed to obstruct majority rule, a few disciplined state delegations have a good chance of blocking major legislation favored by the many. Moreover, 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, quickly overlaying an alphabet-soup of federal bureaucracy onto already complex, confusing and contentious disputes.
Unfortunately, these dysfunctions are only going to get worse unless action is taken now. The best available predictions show that most parts of the American West are becoming drier, especially in the summer months, reducing the available supply of water even as demand continues to grow as a result of population and economic growth. This prospect is especially alarming because many of the West's most important rivers, especially the Colorado, are apportioned among the states based on rainfall figures from a period that is now believed to be one of the wettest in the West's recent history. If interstate water disputes are bad now, they will get much worse if the West gets drier as expected.