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Where East Meets West in Water Law: the Formulation of an Interstate Compact to Address the Diverse Problems of the Red River Basin Marguerite Chapman

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Where East Meets West in Water Law: the Formulation of an Interstate Compact to Address the Diverse Problems of the Red River Basin Marguerite Chapman University of Tulsa College of Law TU Law Digital Commons Articles, Chapters in Books and Other Contributions to Scholarly Works 1985 Where East Meets West in Water Law: The Formulation of an Interstate Compact to Address the Diverse Problems of the Red River Basin Marguerite Chapman Follow this and additional works at: http://digitalcommons.law.utulsa.edu/fac_pub Part of the Water Law Commons Recommended Citation 38 Okla. L. Rev. 1 (1985). This Article is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Articles, Chapters in Books and Other Contributions to Scholarly Works by an authorized administrator of TU Law Digital Commons. For more information, please contact [email protected]. OKLAHOMA LAW REVIEW VOLUME 38 SPRING 1985 NUMBER 1 WHERE EAST MEETS WEST IN WATER LAW: THE FORMULATION OF AN INTERSTATE COMPACT TO ADDRESS THE DIVERSE PROBLEMS OF THE RED RIVER BASIN MARGuERITE ANN CHAPMAN* Introduction The completion of the Red River Compact in 1978 and its subsequent approval by Congress in 1980 was an important milestone both in the proper management of an increasingly precious natural resource and in the use of the interstate compact device to address the multifaceted problems of a re- gion such as the Red River basin. The overall objective of this article is to examine the formulation and approval of the Red River Compact in ad- dressing the diverse problems arising within the watershed of the Red River system. Part I assesses the divergent legal, environmental, and intergovernmental problems which shaped the compact. The genesis of the compact, of course, *B.A., 1973, J.D., 1976, University of Arkansas (Fayetteville); LL.M., 1985, George Wash- ington University. Assistant Professor, University of Tulsa College of Law. The author wishes to thank the following officials of the Oklahoma Water Resources Board for their cooperation in providing access to correspondence, minutes of negotiating sessions, and other records pertaining to the deliberations that led to the formulation and approval of the Red River Compact: James R. Barnett, Executive Director and Commissioner for Okla- homa; R. Thomas Lay, General Counsel and Oklahoma member of the Legal Advisory Com- mittee to the Red River Compact Commission; and Richard Cochran, Tulsa Branch Manager. Appreciation is also expressed to Laurence N. Flanagan, U.S. Department of the Army, Corps of Engineers, Lower Mississippi Valley Division, and to John Saxton, Acting Chairman of the Red River Compact Commission, and Americ J. Bryniarski, Arkansas representative to the Engineering Advisory Committee of the Red River Compact Commission and other staff of the Arkansas Soil and Water Conservation Commission, for copies of other records. Unless otherwise indicated, the views expressed herein are those of the author and do not necessarily reflect the position of the governmental officials and agencies heretofore identified. The author also wishes to thank Richard B. Webber II and Maureen Hennessy, whose ex- cellent work as research assistants facilitated the completion of this article. This article was adapted from a manuscript submitted to George Washington University in partial fulfillment of the degree of Master of Law in Environmental Law.-Ed. OKLAHOMA LA W REVIEW [Vol. 38:1 did not occur in a political or legal vacuum. In order to provide a context in which the negotiations were undertaken, part II of this article chronicles the adjustment of interstate disputes from colonial days until the middle of the twentieth century when the impetus to negotiate the Red River Compact began. The principal alternative mechanism for resolving interstate water problems, i.e., resort to litigation, is discussed in part III, which also reviews the enunciation by the Supreme Court of the basic principles applicable to interstate water disputes. As a background to the preliminary assessment of the compact made herein, part IV examines the expansion of federal au- thority over the nation's waters. Part V reviews the impetus to negotiate the compact, charts the progress of the deliberations from 1956 until congres- sional approval of the compact in 1980, and recounts some of the difficulties encountered during the negotiations. Finally, part VI explains the compact's structure and primary powers and offers a preliminary assessment of its accomplishments. In sum, this article endeavors not only to describe the development of the compact and to explain and evaluate its provisions, but also to assess the position of this compact in the nation's history of the adjustment of interstate disputes. I. The Red River Compact in Perspective The Showdown at Denison Dam More than a hundred and fifty persons watched at high noon, May 12, 1978, as the duly authorized representatives of the states of Arkansas, Lou- isiana, Oklahoma, and Texas and of the United States government assembled atop Denison Dam on the Red River near Denison, Texas, to sign the Red River Compact.' The formal signing of this multipurpose compact expressed, inter alia, the agreement of the four signatory states to an equitable ap- portionment of the water of the Red River system, 2 the sixth longest river 1. States Ink Water Pact, Oklahoman & Times, May 13, 1978, at 3, col. 1. An editorial in one Oklahoma newspaper heralded the historic signing of the compact as "at least a start at facing up to Oklahoma's future water needs," which constituted "easily Oklahoma's No. I problem of the 1980's and '90's." Time to 'Divvy Up', Daily Oklahoman, May 9, 1978, at 8, col. 1. The same editorial couched the apportionment of water made by the compact in terms of state versus federal control of decision making, observing that while "[i]t's not much fun to share Oklahoma water with other states.... it's better for these states to make those sharing decisions than for Uncle Sam to do the dividing-up for them." Id. The signing of the Red River Compact was viewed by one news analyst as possibly "the first step in keeping waters from the Red River Basin from later being drawn off by arid regions demanding relief through federal courts." E. Kelley, Historic Red River Water Pact Ready for Signing, Sunday Oklahoman, May 7, 1978, at 1, col. 1. An official of the Oklahoma Water Resources Board (OWRB) commented that presidential approval of the compact 'would make it difficult' from a legal standpoint for Texas to use the basin's tributaries as a source of water for piping it to the thirsty High Plains region." Id. However, the exportation of water from the system is not prohibited by the compact. See infra text accompanying notes 550-554. 2. Red River Compact, art. I, § 1.01(b), Act of Dec. 22, 1980, Pub. L. No. 96-564, 94 Stat. 3305 (1980) [hereinafter cited as Red River Compact, with applicable U.S. Stat.]. For purposes of the compact, "Red River" means the stream below the crossing of the Texas- 19851 WHERE EAST MEETS WEST IN WATER LAW 3 in the United States? The ceremony ended more than twenty-two years of congressionally authorized negotiations between and among the four states over the creation of an interstate legal framework for the conservation and development of the Red River system, one of the greatest resources of the 4 Southwest. The official signing ceremony culminated sixty formal meetings of the Red River Compact Negotiation Commission (RRCNC)5 since the enactment by Congress and the promulgation by President Dwight Eisenhower on August 11, 1955, of legislation specifically consenting to the negotiations.6 During the ensuing year and a half following the formal signing ceremony, the compact was ratified by the respective legislatures of the signatory states and approved by the Congress. 7 The Red River Compact became legally effective and binding on December 22, 1980, when President Jimmy Carter approved the consent legislation.8 Oklahoma state boundary at longitude 100' west. Id. § 3.01(b), 94 Stat. 3307. "Red River basin" denotes all of the natural drainage area of the Red River and its tributaries east of the New Mexico-Texas state boundary and above its junction with the Atchafalaya and Old rivers in Louisiana. Id. § 3.01(c). The term "Red River system" is used interchangeably with "water of the Red River basin" to refer to the water originating in any part of the Red River basin and flowing to or into the Red River or any of its tributaries. Id. § 3.01(d), 94 Stat. 3308. 3. See Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 520 (1941), citing H.R. Doc. No. 541, 75th Cong., 3d Sess. 17 (1938). 4. 126 CONG. Rac. H11386 (daily ed. Dec. 1, 1980) (statement of Rep. Hall). 5. Minutes of the 60th Meeting of the Red River Compact Negotiation Comm'n (RRCNC), at 1 (May 12, 1978). Although governmental records generally refer to the commission that negotiated the Red River Compact as the "Red River Compact Commission," the author uses "Red River Compact Negotiation Commission" or "RRCNC" to denote the commission that negotiated the compact and to distinguish it from the Red River Compact Commission or "RRCC," the interstate agency created to implement the compact. Unlike other river basin compacts, no bound volume of the official records of the negotiations has ever been compiled for the Red River Compact. See Verbatim Transcript, Red River Compact Comm'n, at 21 (2d Annual Meeting, Apr. 27, 1982). Photocopies of the official minutes of the meetings of the RRCNC and the Red River Compact Commission and other records of the deliberations cited herein are on file in the author's office at the University of Tulsa College of Law in Tulsa, Okla., and in the office of the Oklahoma Law Review in Norman, Okla.
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