Border Wars Texas Fight for Water P. Ryan Langston ryan.langston@strasburger.com (469) 287-3814 Today s Presentation The Need for Water the Drought The Legal Foundation Surface Water v. Groundwater Interstate Water Compacts History and Litigation Texas Water Plan Where do we go from here? 1
Texas Needs Water Lake Lavon Main Reservoir for the North Texas Municipal Water District Extent of the Drought exceptional drought conditions pose a threat of imminent disaster in a number of specific counties in the State of Texas 2
Extent of the Drought Good News Less than 1% of the state is in the worst stage of drought (compared to 88% in in Oct. 2011) Drought Map hasn t looked this good since Dec. 2010 Bad News State s reservoirs are only 63% full (many in West Texas are empty) Latest outlook shows continued drought in West Texas While conditions in East Texas will continue to improve, things will get worse for our fellow Texas out west Extent of the Drought 3
Effects of the Drought (Examples from the Colorado River) Big Spring Odessa Pump Station Intake Big Spring Odessa Pump Station Intake (Sept. 2012) Effects of the Drought 2 nd Snyder Barge 2 nd Snyder Barge (Sept. 2012) 4
Effects of the Drought 1 st Spence Barge 1 st Spence Barge (Sept. 2012) Effects of the Drought Spence Pump Intake Tower Spence Pump Intake Tower (Sept. 2012) 5
Economic Impact of the Drought Agriculture losses are felt first and are more often studied 1950s estimated loss to be more than $3B in 1959 report ($24B in 2008 dollars) Losses in 2011 = $7.62B Affects tourism, recreation, public utility services, manufacturing and mining operations, public water supplies Population and demand are increasing; existing water supplies are decreasing Surface Water Tex. Water Code 11.021(a) 6
Diffused Surface Water and Watercourses 7
Cross Border Rivers and Streams Controlled by the Federal Government Apportionment of Interstate Streams Doctrine of Equitable Apportionment Act of Congress Interstate Compact 8
Texas Water Compacts 1. The Rio Grande Compact, 1939 (Tex. Water Code Ch. 41) 2. The Pecos River Compact, 1949 (Tex. Water Code Ch. 42) 3. The Canadian River Compact, 1952 (Tex. Water Code Ch. 43) 4. The Sabine River Compact, 1954 (Tex. Water Code Ch. 44) 5. The Red River Compact, 1980 (Tex. Water Code Ch. 46) Caddo Lake repealed (former Tex. Water Code 47) The Rio Grande Compact 1939 First Rio Grande From river source to Fort Quitman Governed by 1906 Treaty with Mexico Also governed by the 1939 Rio Grande Compact Second Rio Grande From Fort Quitman to the Gulf of Mexico Not governed by an interstate compact 9
The Rio Grande Compact 1939 Formation of the Compact 1920s 1930s Increase demand for water Texas filed a lawsuit against New Mexico and Colorado Administration of Compact Rio Grande Compact Commission One representative from each state All decisions must be unanimous to effect and equitable apportionment 1945 Treaty with Mexico Transboundary Ground Water No treaty Overexploitation and pollution Rethinking Transboundary Ground Water Resources Management: A Local Approach along the Mexico-U.S. Border by Gabriel E. Eckstein, 25 Geo. Int l Envtl. L. Rev. 95. Terms of the Treaty Rio Grande divided equally Tributaries belong to state in which they are located Shared tributaries are divided International Boundary and Water Commission 10
The Pecos River Compact 1924 History of Negotiations Formation of Compact 1. Texas threatened to sue New Mexico 2. Texas and New Mexico entered into voluntary negotiations Originally provided an apportionment of water between two states Signed in 1924 by Texas Vetoed by New Mexico Disputes lasted throughout 1930s Compact negotiations began again in 1945 Completed in 1949 The Pecos River Compact 1949 Terms of the Compact Does not limit number of acres May not deplete by man s activities the flow of the Pecos River Created Pecos River Commission Texas v. New Mexico, 1974 1960s Engineer Report 53,000 acre feet ($14M) Court limited by language and intent of the Compact River Master Appointed 11
The Canadian River Compact 1952 History of Compact Texas Panhandle Communities and the Sanford Dam Lobbied for a compact to define the rights of each state Different from the Rio Grande and Pecos Compacts Terms of the Compact Canadian River Commission Oklahoma is entitled to free and restricted use New Mexico and Texas have limitations on conversation storage 2 principal limitations on Texas use The Canadian River Compact 1952 Oklahoma v. New Mexico (1991) Sanford Dam v. Ute Dam 1980 Enlargement 200,000 acre limitation Palo Duro Reservoir Dispute Oklahoma complained that Texas violated Compact Recreational Use Resolution adopted by Oklahoma s Legislature 12
The Sabine River Compact 1954 Shared by Texas and Louisiana Competing claims to the Sabine River by both Texas and Louisiana landowners Sabine River Compact Administration Stateline Reach No Dams Red River Compact 1980 Compact Formation Prompted by Drought of 1950s (not created until 1980) Red River Compact Commission Unique: unanimity is not required for action 13
Red River Compact 1980 Tarrant Regional Water District v. Hermann TRWD sought to export water from Oklahoma to Texas Subbasin in question located exclusively in Oklahoma Equal rights to excess water Texas argued that it could enter into any subbasin and take up to 25% even if subbasin is in Oklahoma Oklahoma argued that the clause meant each state could take up to 25% from subbasins in their territory Tarrant Regional Water District v. Hermann SCOTUS upheld 10 th Circuit Decision Texas: Silence of compact on cross-border diversions SCOTUS: Silence of other clauses is persuasive SCOTUS: States control their own water SCOTUS: No cross-border diversions in the history of the compact Holding: Texas cannot enter Oklahoma without Oklahoma s consent Takeaways Red River Compact 1980 14
So, now what? 2012 State Water Plan Funded in November 2013 - $2B (passed 73 to 27) Surface Water Strategies Account for 51% of the recommended volume of new water needed Groundwater Strategies account for 9% Water Reuse accounts for 10.2% Regional Water Planning will be key 15
Conservation is Key 24% of all future water supplies must come from water conservation efforts Questions? P. Ryan Langston Strasburger & Price, LLP 2801 Network Blvd., Suite 600 Frisco, Texas 75034 ryan.langston@strasburger.com (469) 287-3814 16