- The Washington Times - Tuesday, April 23, 2013

Water is life, and men throughout history have fought to the death to control it. Despite advances in technology, the underlying disputes remain the same, but they’re resolved in a more civilized fashion. The latest clash between Texas and Oklahoma being heard by the Supreme Court on Tuesday could change that.

The apparently simple question of whether Texas has the right to access water from within Oklahoma boundaries is posed by the case, Tarrant Regional Water District v. Rudolf John Herrmann, et al. The wrong decision by the justices could sink interstate water-rights agreements throughout the United States.

Water compacts have historically governed how states deal with sharing water when rivers and lakes overlap the boundaries that exist only on a map. Water supplies for more than 18 major metropolitan areas nationwide rely on access determined by such compacts and, on a smaller scale, farmers and ranchers rely on compacted water as well.

In 1978, Oklahoma, Texas, Arkansas and Louisiana signed an agreement governing the use of water in the Red River basin, the second-largest river basin in the southern Great Plains. All four states have some access within their respective boundaries to water originating from this basin. The agreement, called the Red River Compact, was to lay out “the equitable apportionment of the waters of the Red River and its tributaries.” For the stretch of the river at issue, “equitable” was defined as each state receiving 25 percent of the water above a certain baseline river flow. The affected state legislatures ratified the agreement, and Congress gave it the force of law.

Texas has never used its full quarter-share of Red River basin water, primarily because the flow of the tributaries within its borders is limited. When the agreement was signed, the relevant length of the Red River and most of its tributaries fell within Oklahoma’s boundaries. Texas argues that by dividing shares of basin water to each of the four states, the compact anticipated the need for access outside state lines to fulfill the meaning of the compact’s terms.

The 10th U.S. Circuit Court of Appeals’ rejection of the Texas argument threatens to unravel existing agreements around the nation, washing away the orderly system that has governed water rights for decades.

The eastern part of Oklahoma involved in this case is flush with the water that Texas lacks, but compromise is currently impossible. The 10th Circuit’s reading of the Red River Compact prevents Texas from claiming the share of the water that the four states agreed to in 1978. It also keeps Texas from buying Oklahoma water from either Indian tribes or municipalities because Oklahoma state legislation requires explicit statehouse approval for any sales.

The current standoff between Texas and Oklahoma should be resolved with the original purpose behind the Red River Compact in mind a fair apportionment of the water. The Supreme Court can do that without leaving either state high and dry.

The Washington Times

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