10th Circuit decision could affect river compacts between states


Here’s a guest column, written by James M. Oliver, that’s running in The Salt Lake Tribune. A recent decision by the 10th U.S. Circuit Court of Appeals in Denver has the potential to affect the compacts that allocate water between states. Here’s an excerpt:

Last September, in a case involving Oklahoma and Texas (Tarrant Regional Water District v. Herrmann), the 10th Circuit reread language in the Red River Compact — a compact among Arkansas, Louisiana, Oklahoma and Texas — to mean that water-sharing among the signatories was voluntary, not mandatory. This begs the question, why did the states negotiate the complex agreement at all?

Here is the problem for Utah.

The decision turned on a provision common, in various wordings, to many of the nation’s interstate water compacts, including the one governing the Colorado. The provision says that when one state gives another the right to tap its water, it does not give up the right to enforce state laws on the waterway or impose its environmental standards or anything else — other than the water itself.

This kind of “we mean what we say and nothing more” language is in almost every major contract ever written. But, amazingly, the 10th Circuit’s three-judge panel read it to say that Oklahoma does not have to allow Texas the water guaranteed to it in the Red River Compact at all.

No act of legal revisionism by any court in the country has so much potential to generate economic disruption. If the Supreme Court declines to review, the ruling will become law in the 10th Circuit, covering Wyoming, Colorado, Utah, Kansas, New Mexico and Oklahoma.

More water law coverage here and here.

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