Cooperation, Not Litigation, Best for Managing Water Resources

Gov. Rick Scott announced recently that Florida would sue the state of Georgia for using too much water. The governor argues that Georgia's thirst for water from the Apalachicola River is devastating Florida's oyster industry, and that a lawsuit is the only way to force Georgia to act.

But if he really wants sustainable use of the Southeast's water resources, Scott is choosing the wrong tactic at the wrong time. Two recent Supreme Court decisions, including one concerning a Florida water-management district, threaten to undermine state and federal officials' ability to manage America's water resources. Instead of fighting it out through the courts, the governor should work with neighboring states and the federal government to use economic measures to ensure more efficient use of water resources.

In the first case, Tarrant Regional Water Management District v. Herrmann, the Supreme Court unanimously rejected a Texas water district's argument that an interstate compact should force Oklahoma to sell it water, despite an Oklahoma law barring out-of-state water transfers.

In the second case, Koontz v. St. Johns River Water Management District, a narrow majority of the justices upheld a Florida property owner's challenge to a demand by a local water district that he provide compensation in exchange for gaining permission to develop a wetland area. The policy consequences of these decisions are likely to be disastrous in depriving America's water managers of their most effective weapon against water scarcity — economics.

There is widespread agreement among environmental-management specialists that the most efficient way to deal with a scarce and vital resource like water is to employ economic measures to encourage conservation and beneficial use. The Supreme Court's recent decisions threaten to sharply limit the use of these measures.

By upholding Oklahoma's "sovereign powers" over its water, the court sanctioned Oklahoma protectionism instead of the free flow of water rights and resources across state boundaries. Consequently, interstate water transfers, critical to alleviating the Southeast's periodic droughts, are under threat.

The Koontz opinion, meanwhile, seeks to rein in the government's ability to interfere with property owners. But it also restricts the use of economic measures to encourage conservation.

The Supreme Court's decision in Koontz is especially troubling because it undermines a popular Florida policy called Save Our Rivers. Under this program, Florida's water-management districts acquire and manage lands using revenue produced by real-estate transaction fees. Purchases reflect locally formulated water-management plans, and title is held by local water districts rather than the state.

The program has enjoyed widespread public support under a succession of Democratic and Republican governors and has helped conserve 1.7 million acres of land critical to protecting Florida's water. But the oral arguments in Koontz barely mentioned water resources — and that is why political leaders, including Scott, need to keep such issues out of the courts.

In its two recent decisions, the Supreme Court illustrated how even good law can make awful policy. By calling two important economic tools to protect water resources into question, the court has created a vacuum in America's water-resource policy that only federal-state cooperation can fill.

America needs a partnership between federal, state and local governments that permits considerable flexibility to manage water according to regional priorities and circumstances. But at the same time, Congress should direct federal agencies with a major role in water resources to more effectively aid and advise states that are willing to experiment with and expand interstate water-rights trading.

The Southeastern states, meanwhile, should do their part by committing to policy cooperation rather than legal conflict.

As bad as a Florida-Georgia feud is for the region's water resources, legal limbo may be worse — especially if that is where its water-resource policy ends up stagnating.

Scott Moore, 28, of Cambridge, Mass., is a Giorgio Ruffolo post-doctoral research fellow with the sustainability science program and the Belfer Center for Science and International Affairs at Harvard University, where he studies water-resource politics and policy.