Summary: Arid regions in the southwest are quickly running out of water from excessive groundwater withdrawals, reduced surface water availability, and altered climate patterns. Texas is one of many arid regions facing severe water shortages. In an effort to secure water resources, Texas has turned to suing its neighbors for water resources rather than facing the elephant in the room: its own over consumptive water use.
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By Emily J. Remmel
Texas is out of water.
The Lone Star State’s surging human population, thriving natural gas and industry demands, and its high susceptibility to drought coalesce to create the perfect storm for water disputes. Water resources conflicts are familiar battles to westerners. Texas, however, is on the verge of facing an all-time water crisis and is blundering to secure water resources for future generations.
It is time Texas faces the thirsty elephant in the room.
As of now, Texas is making a paltry effort to face its growing demand for water and its critical lack of supply. Texas’s current strategy—sue thy neighbor.
In an effort to secure freshwater resources for its residents, Texas sued its Red-River rival and northern neighbor, Oklahoma. Tarrant Regional Water District (TWRD) applied for a permit to divert high quality fresh water from several Oklahoma tributaries to supply 1.7 million people (and growing) in the Dallas-Fort Worth metroplex. In Tarrant Regional Water District v. Hermann, Texas claimed that once the pristine Oklahoma tributaries met the shared Red River, the water became too saline, was unusable, and was ultimately wasted as it flowed into the Gulf of Mexico. TRWD further claimed Oklahoma’s denial for a permit was discriminatory in nature and unconstitutional under the dormant commerce clause.
This past summer, the United States Supreme Court ruled the Red River Compact, authorized by Congress in 1978, granted Oklahoma the right to deny Texas entry into Oklahoma to divert water resources. In a unanimous decision, Justice Sotomayor affirmed that thirsty Texas does not have a right to tap into Oklahoma’s water before the water physically reaches the Red River. This ten year battle left Texas with an empty bucket.
Now, a year later, Texas is at it again. This time, Texas is looking west to the Elephant Butte Reservoir in New Mexico in an effort to secure current and future water resources. Texas The delay and costly loss against Oklahoma may have motivated Texas to beeline it to the Supreme Court asserting original jurisdiction. Texas’s claim: New Mexico is violating the Rio Grande Compact by failing to deliver specified quantities of water into the Elephant Butte Reservoir to Texas’s detriment.
The Rio Grande River headwaters originate in southwestern Colorado and the River meanders through New Mexico before reaching Texas and discharging in the Gulf of Mexico. The River gracefully carves through the desert creating precipitous canyon walls. The United States National Park Service has designated certain portions of the River as wild and scenic because of its allure. The River is in trouble. Diminishing rainfall, shrinking snowmelt, and exuberant water withdrawals are reducing the River’s flow. The Elephant Butte Reservoir is at 18 percent its full capacity. The Reservoir is no longer a blue haven in the desert; it now seems more like desolate mirage.
Colorado, New Mexico, and Texas entered into the Rio Grande Compact, signed by Congress in 1939. This Compact specifically allocates a designated water quantity between the three states. Texas argues that New Mexico, contrary to the intent and purpose of the Compact, has allowed excessive surface water diversions and groundwater withdrawals, mostly to meet agricultural demands in an increasingly arid climate. New Mexico has violated the Compact by failing to deliver specific water quantities to the Elephant Butte Reservoir. Interestingly, Texas’s legal claim identifies the hydrological connection between surface water and groundwater. This hydrological phenomenon is usually not founded in the law, especially in the west where surface water rights are distinct from groundwater rights. On January 27, the Supreme Court granted original jurisdiction, allowing Texas to bring its water claim straight to country’s highest judicial authority.
Texas is home to millions of residents and dwindling water supplies. Further, it is clear that municipalities across the great state of Texas continually face reduced water supplies because of higher demands and drier climates. Texas has one tragic flaw: it persistently relies on the judicial system to allocate water to the state rather than take progressive steps towards conservation. It is true, according to the archaic and cryptic water Compact, Texans may deserve a certain “percentage” of water allocation from surrounding states. But Texas refuses to acknowledge the thirsty elephant in the room—extreme growth and development coupled with the lack of existing adequate freshwater supplies makes the “percent” water allocations increasingly unreasonable.
California, the poster state for water conflicts in the United States, is currently experiencing one of the worst droughts on record, quite possibly the worst in 434 years. Southern California’s soaring populations may face severe water restrictions and the state’s valuable agricultural industry could instantly crumble. Within the last two weeks, California farmers in dire need of water for thirsty crops requested assistance from the federal government. The Bureau of Reclamation, the federal agency in charge of water reservoirs and infrastructure on federal lands, turned thirsty-ag away. Although a forecasted two inches of rain may provide acute quick relief to those farmers seeking water, the chronic shortage of water resources in the west is only worsening. The Bureau of Reclamations decision was on-point—redirecting water resources through man-made canals and lengthy interstate or intrastate pipelines is not the solution. California’s drastic overuse of water to available quantity is a prime example of how Texas’s future pivots on a change of water mentality.
While we patiently await Texas’s formal complaint and New Mexico’s 12(b)(6) motion to the Supreme Court regarding the Elephant Butte Reservoir conflict, one must ponder alternatives to Texas’s chronic water shortages. What Texas has failed to see is that the solution to the water conundrum rests not in tedious litigious battles, but in Texas initiating robust water policies that restrict water use and incentivize water conservation.
To achieve such a balance, Texas must initiate cooperative land development and water resources planning. Texas should not promote urban or industrial expansion without a comprehensive water supply plan for the future. The burden to secure water resources would fall on the developer, not the town. The downside to this alternative is a drastic departure from the status quo and reduced economic prosperity (no community truly would promote less business). The decision, however, would offer long-term economic benefits. Residents and existing businesses or industries would be assured adequate water resources based on the comprehensive study and pre-condition that water supplies be adequate before development. There would be no competition or fear for the growing scarcity of water. Aquatic habitats would not be altered by interbasin water transfers. The answer to Texas’s water conflict rests with municipalities realizing water scarcity as an issue before it becomes a problem.
Texas should face this issue head on by implementing comprehensive water planning and development schemes. One thing is clear besides the shortage of water: Texas is running out of neighbors to sue. If the Lone Star State falters again before the Supreme Court against New Mexico, who knows which state Texas may sue next to secure water resources for its 26 million residents, multi-billion dollar agricultural and livestock revenue, and its predominant oil and gas industry.