Myths and Truths About the State-Tribal Compact and Texas Water Sale

 

by Suzette Hatfield

for Oklahoma Family Farm Alliance, Oklahoma Sierra Club and Southern Oklahoma Water Alliance

 

Myth: The State-Tribal Compact and Texas water sale is dead.

Truth: It’s obvious that negotiations are continuing. The Choctaws are spending BIG BUCKS on newspaper and radio advertising to promote the deal. A Texas spokesman, quoted in the Dallas Morning News, said the contract is 90% complete.

 

Myth: Water Compacts must be approved by the Oklahoma Legislature.

Truth: According to House attorneys, a Compact involving Indian tribes may only have to pass the State-Tribal Relations Committee and be signed by the governor.

 

Myth: We have to include the tribes in any water deal—they own streams.

Truth: The law firm of Ryley, Carlock and Applewhite, expert in tribal water rights, was hired by the State of Oklahoma to analyze the validity of tribal claims. The conclusion of attorney Michael Brophy, was that “Neither the Choctaw Nation nor the Chickasaw Nation owns the water in the (Kiamichi) Basin.”

 

Myth: But…by including the Indians in the deal, we can stay out of court. They won’t litigate to assert tribal claims.

Truth: There are worse things than going to court. The current Compact offers the Choctaws 37 1/2% of any net revenues and the Chickasaws 12 1/2%.

Let’s look at some numbers.

ALL Indian tribes in Oklahoma together with allottees own 2.5% of the land in the state. Tribal governments own about 97,000 acres, or 151 square miles. Oklahoma’s smallest county is Marshall County, with 371 square miles. The population of ALL tribes constitutes 7.9% of the state’s people. The Choctaws and Chickasaws form 3%.

How can the Oklahoma Water Resources Board possibly justify a giveaway of HALF the potential revenues from a water sale as a bribe for this small population?

     Another problem is precedent. Our state would have to buy off tribes in 74 out of 77 counties to do other inter-basin water transfers—even within our state!

And. we won’t stay out of court. Groups representing environmental, agricultural and industry interests are poised to sue to protect their water claims.

 

Myth: A water compact and sale would bring much needed development to southeastern Oklahoma.

Truth: All revenues from a sale would pass through a Compact Commission. This unelected group would have authority to spend or invest monies, build water storage structures and incur indebtedness. No distributions to anyone are guaranteed—not for schools, not for roads, not for water supplies.

Any new industry would be crazy to locate in southeastern Oklahoma after establishment of this Compact. By attributing ownership of half the water to the tribes, the State of Oklahoma would be granting tribal governments jurisdictional authority that they currently do not have. How so?

Water permitting can be stymied pursuant to a tribal protest by claims of violations of tribal sovereignty, tribal political integrity or tribal economic security. (State-Tribal Water Compact Sect. 4.5.b) Such situation is not unprecedented. The State of Montana is currently enjoined from issuing water permits until all the water needs of the local tribes can be quantified.

Tribes are preparing to become environmental regulators. Under an EPA provision called “Treatment as States”, tribes that can show jurisdiction and ability may be delegated regulatory authority for Clean Water Act, Safe Water Drinking Act and Clean Air Act programs currently administered by our DEQ.

The Chickasaw tribe has already applied for treatment as a state.

Overlapping jurisdictions and conflicting environmental programs would be major hurdles for industries and would discourage development.

In a landmark case, “Montana v United States EPA”, tribes were granted the right to regulate activities of non-members if they could show that activities would affect the “political integrity, economic security, or the health and welfare of the tribe.” According to the 9^th Circuit Court of Appeals, that’s easy.

Cities would not be exempt from the headaches, either. The Isleta Pueblo tribe in New Mexico was granted EPA delegation as a state. The tribe established Water Quality Standards so strict that the City of Albuquerque had to spend more than $200 MILLION in additional water treatment in year 2000 so that the tribe would have ceremonially clean water.

 

Myth: Groundwater uses won’t be affected. The Compact says that groundwater sales are not authorized.

Truth: While it is true that no marketing of groundwater is authorized by the Compact, groundwater is clearly pledged to meet the State’s obligations under any sale.

Section 3.1 states, “The water rights and water quality administration provisions of this Compact are applicable to all stream water and groundwater falling on, flowing in, under through or bordering all or portions of the following 22 counties within the State…”

So, the Compact even includes rain and farm ponds!

The Pecos River Compact of 1948 between New Mexico and Texas serves as an example of a boon-to-bust water deal.

When New Mexico entered into the agreement to deliver a stated annual amount of water to Texas, there was plenty of fresh water flowing in the Pecos River. A water sale looked like an economic windfall. After all, near the state line, the sweet water was sullied by the Malaga Spring as it brought briny water up from the salty Rustler aquifer.

As years passed, irrigation draws and municipal use, combined with years of drought, reduced the flow in the Pecos to a trickle. New Mexico was unable to meet its commitment to Texas.

Texas sued.

The U.S. Supreme Court fined New Mexico $14 million for the shortfall in water deliveries and ordered compliance.

A state body, the Ad Hoc Pecos River Basin Committee, has proposed a plan that includes curtailment of municipal water supplies and purchase of $68 MILLION in water rights from farmers so that New Mexico can pump groundwater into the Pecos River to make it flow over the border.

The Committee plan states, “The overall situation to maintain compliance with the Compact is very difficult and has the potential to cause substantial economic harm, including harm to the State of New Mexico as well as its citizens through reduced economic activity.”

The Pecos River Compact serves to warn us of what could happen with Arkansas in the future if we give half our water to the tribes, then we run short and can't send enough downstream. The State of Arkansas will surely be suing the State of Oklahoma, not the tribes.

 

Myth: We need the Texas water sale to pay for Sardis Reservoir.

Truth: The State of Texas violated their Canadian River Compact with Oklahoma by constructing an unauthorized lake, thereby stopping water flows into Oklahoma. Let’s use the proceeds from a suit against Texas to help pay for Sardis.

 

Myth: If we don’t use the water or sell it, the Feds will seize it and give it to Texas. After all, we will only have 5 Congressmen and Texas will have 30!

Truth: This is one of the most bizarre statements we’ve heard. The Tenth Amendment to the Constitution of the United States reads: "The powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the States  respectively, or to the people."

That includes administration of water rights and a whole lot more.

 

Myth: Oklahoma would only be selling EXCESS water to Texas. It’s just water that goes over the Hugo Dam, turns salty in the Red River and is lost forever.

Truth: How do we know it is excess? We have no long-term plan for Oklahoma’s water uses. The current so-called “Comprehensive Water Plan” is only an incomplete inventory of water resources for an inadequate 10-year horizon. The Texas sale would commit Oklahoma water for 99 years.

Without a REAL plan and a better definition of excess, we can’t ensure that we will have enough water in our streams to protect all beneficial uses for the future.

The Hugo Dam only captures the flow in the Kiamichi basin. It’s not the end of the line. There are many Oklahoma water users downpipe from Hugo. Five other major basins are pledged in this Compact as well.

It’s hard to look around southeastern Oklahoma and find any sign of excess water in the summertime. The McCurtain County Fire Department has been hauling hundreds of thousands of gallons of water every day for the past four summers to replenish farm ponds and dry groundwater wells. Our Federal government has appropriated $21 million in drought relief for the very counties that have been designated as donors for the Texas water deal. Many rural Oklahomans still have no running water or access to rural water systems. Have their needs been enumerated?

The rhetoric about salty water echoes the empty promises made to New Mexicans 54 years ago about the Pecos River sale. And, they are simply NOT TRUE.

According to Dwayne Raper, chairman of the Little River Conservation District in Ashdown, Arkansas, downstream farmers use the Red River water for irrigation. Salinity studies done by the University of Arkansas Water Laboratory and the NRCS show that the saltiest samples are only 25% of the threshold value for salinity. The sample site had been irrigated with Red River Water for 20 years.

Oklahoma has long-standing obligations under the Red River Compact with Texas, Arkansas and Louisiana to guarantee flow. An acknowledgement by Oklahoma that tribes own rights to part of this flow would modify that agreement between the states - but Arkansas and Louisiana have not been consulted and the legal process for modifying an interstate compact is not being followed. We can expect those states to go to court to secure their shares.

 

Myth: Even so, this is a regional problem, not a State problem. We should let the folks in the 22 (or 29) affected counties make the decision about the Compact and sale.

Truth: The State-Tribal Water Compact is just the first domino to fall. Other tribes are waiting for their opportunities to Compact for water resources (such as Grand Lake, Tenkiller and Kaw Lake) and assume regulatory authority. If you live in any county other than Cimarron, Texas or Beaver, there are century-old tribal claims on your land. There are aboriginal claims on the Panhandle.

All water users upstream of any tribal jurisdiction would be subject to that tribe’s regulatory agencies.

 

The Oklahoma Legislature represents ALL Oklahoma citizens, including members of Indian tribes. The people of Oklahoma, through these elected representatives, should decide whether water should be used in state or sold.