A State of Thirst

In the Northeast, where I grew up and lived for most of my life, water is not really an issue, and I mean that not only in the sense of supply, but also of demand, of behavior, and of infrastructure. Rainfall is relatively predictable, the growth of the population is relatively predictable, and systems of dams and reservoirs and preserves and watershed conservation easements have been around for a pretty long time. I do not remember having more than a passing awareness of any of these matters before I started writing about planning and natural resources seven or eight years ago.

The same is not true in Texas, where I live now. Here, the "drought level" is advertised on the side of city buses. Here there are public service announcements on the radio when it rains: "Turn around, don’t drown" (painfully lame, but memorable). Here, flash flood warnings really mean something; in the two years I’ve lived in Austin there have been two floods that killed at least two people. Another fact, which may seem contradictory, is that Central Texas has been skating in and out of major droughts for a number of years now. Despite frequent flash floods in the city of Austin, the Highland Lakes—a system of dams along the Colorado River that supplies many local municipalities—have remained far below capacity. (This changed, finally, after the Memorial Day floods this year; see the Austin American-Statesman for a very cool illustration.) Even when the streets of Austin are coursing with stormwater, Hill Country may remain bone dry.

And here’s the other thing: the population is Texas is booming. Not just growing, booming. Calculating population growth is tricky, but this one from Forbes, which uses Metropolitan Statistical Areas instead of cities, puts Houston first, Austin second and Dallas third. Then Fort Worth is eighth and San Antonio is tenth. Austin is growing so quickly that, for example, two years ago the airport ran out of long-term parking at Christmas. And Texas is growing so quickly that the drier parts of the state are looking, sometimes desperately, for more water. North Texas has been draining the Ogallala Aquifer for some time now, and West Texas never had any water to begin with.

(I stayed at a ranch near Big Bend National Park a little more than a year ago, and the owner apologized for the regular appearance of mice in the tin cabin down the hill from his house. It’s hard to control, he said, "Because everything out here is dying, or about to die, of thirst.")

That desperation is beginning to play out in the legal system, mainly because Texas would like to take water from adjacent states, and the adjacent states would prefer to keep it. In 2013, the Supreme Court of the United States, in Tarrant v. Herrmann et al, ruled that Texas could not, in fact, cross into Oklahoma to take more water from the Red River. That case will cast a shadow over one that the Supreme Court has agreed to hear. Texas v. New Mexico and Colorado is a slightly bigger deal than Tarrant v. Herrmann, mainly because in the former one state is suing another (technically two others, but Colorado is only named because it is party to the agreement in question) while in the latter a water district in one state sued the water board in another state.

But both deal with interstate water compacts from a time in which there were many fewer people in the region, and the parts of those compacts that are not explicit are now in contention. Texas v. New Mexico and Colorado is a critical case, and will be the topic of my next post. But it's worth first looking at Tarrant v. Herrmann to understand what exactly is at stake.

The facts of the case: Tarrant Regional Water District (hereafter referred to as Tarrant) includes 11 counties, 1.7 million people, and the city of Fort Worth; it also claims its population will double by 2060, which might be something of an exaggeration but is not entirely without evidence.

Between 2000 and 2002, Tarrant tried to buy water from Oklahoma, but could not, because state laws (some of them passed purposely after the application was submitted) did not allow the issuing of out-of-state water permits.

(The entity Tarrant sued was actually the Oklahoma Water Resources Board; Herrmann refers to Rudy Herrmann, the chairman of the board. From this point forward I will refer to this party as "Oklahoma," because it doesn't seem very nice to single out poor Mr. Herrmann for the purposes of this post.)

Having tried but failed to buy the water, in 2007, Tarrant applied for three permits anyway. Because it was very clearly not going to get them, it simultaneously filed suit against Oklahoma with a new claim: that it was owed that water under the provisions of the Red River Compact.

Four states—Texas, Oklahoma, Louisiana, and Arkansas—are part of the Red River Compact, an agreement that was drafted in 1955 but not ratified by all four states until 1978, and the purpose of which was to fairly allocate water from the Red River.

The compact divided the river into five "reaches." Each state was assigned its own reach. The fifth reach was then divided into five "subbasins," and each state was assigned its own subbasin, which left one extra sub-basin to split. The only part of the compact at stake in Tarrant that one last subbasin, the technical term for which is "Reach II, Subbasin 5."

The rules on Subbasin 5 mandate that each state receive 25 percent of the extra water (I am not going to get into the meaning of "extra water" because this topic is technical enough already) when the river is flowing at a certain rate. So that was basically fair, but what the Red River Compact did not do is require anyone to actually check and make sure that each state was, in fact, taking only its 25 percent. Instead, the compact allows any state, if it suspects another of taking more than its share, to call for an accounting. To date, no state, and that includes Texas, has actually done that, which would be fine except in Tarrant Texas accused Oklahoma of just that.

But here’s where things really become specific: Tarrant claimed, in the lawsuit, that it believed it had a right to cross state lines, because the Red River Compact does not say that it can't cross state lines to get its 25 percent; Oklahoma, in turn, claimed that the Tarrant could absolutely not cross state lines, because the Red River Compact does not say that it can cross state lines to get its 25 percent. This was the matter for the Court. (For several courts, actually: the U.S. District Court for Western Oklahoma ruled in favor of Oklahoma, and the 10th Circuit upheld the decision. The fact that the Supreme Court agreed to hear the case after these two consistent rulings may indicate that it is interested in setting precedent for the matter of interstate water compacts.)

The Supreme Court ruled against Tarrant for the following reasons:

1. State sovereignty is extremely important, and if the authors of the compact meant to impinge upon it, they would have been really clear.

2. In other interstate water compacts, any crossing of state lines is made really clear.

3. Most obvious: it was kind of hard to believe that the Tarrant really thought it had a legal right to the water after it had spent several years trying to buy it.

During oral arguments, Justice Samuel Alito said to Charles Rothfeld, one of the attorney’s representing Tarrant, "When you say Texas has the right to go into Oklahoma, just think about that phrase...That’s very striking. I mean, it sounds like they are going to send in the National Guard or the Texas Rangers."

(In 1919 Texas did, actually, send the Texas Rangers to stake a claim on the Red River, when a crew of Oklahomans were looking for oil in the river bed. The Rangers told the group they were in Texas and had to go, though it’s not particularly clear what state they were actually in. It’s worth noting, for those of us that grew up in older parts of the country, that Oklahoma had become a state only 12 years earlier, and the border between Texas and Oklahoma was still in dispute  at the turn of the 21st century.)

The critical piece of the ruling is not actually about water supply or demand—it’s about state’s rights. In general, federal law trumps state law. But in this case, the Supreme Court ruled that the rule of federal preemption does not apply to interstate compacts because the states have drafted those compacts themselves and agreed to the terms.

In practical terms, that means every state gets to hang on to its natural resources.

It also means that New Mexico has an advantage in Texas v. New Mexico and Colorado. Because, as in Tarrant, Texas is not so much asking that the Rio Grande Compact be enforced, but that it be interpreted.

More on this, and many other matters, in the relatively near future…