Nisheet Dabadge (Nishu Dabadge) — Water Law Notes 8
Water as Regional and Shared Resource
Water is shared through rivers that go through many states, border many states, and lakes that border many states. Water is apportioned through various methods, and the dormant Commerce Clause is also used to stop states from hoarding water for in-state use.
Equitable Apportionment
In Kansas v. Colorado, the court found that states filing conflicting water rights claims over interstate water sources were to be recognized as having equal rights as to the water in the shared waterflow. This was the first equitable apportionment case; the court found that one state obtaining a great benefit only to the slight detriment of the other state would not allow the victim state to interfere with the water rights of the benefitting state. This doctrine was expanded in New York v. New Jersey, where the court found that absent “clear and convincing” evidence of serious harm to the suing state, the Supreme Court would not intervene with interstate water disputes. In Wyoming v. Colorado, two prior appropriation states, the court applied a strict prior appropriation seniority doctrine regardless of state and sorted through the seniority of individual state law appropriators across the borders that way. In Nebraska v. Wyoming, however, the court departed from this doctrine and allowed the junior upstream users in Colorado to maintain water diversions at the expense of senior downstream appropriators in Nebraska, stating that because downstream losses / wastage did exist, and because a diversion cancellation upstream in Colorado would take 3 weeks to actually increase flows for senior appropriators in Nebraska if flows were needed there, it did not make sense (nor was it equitable) to allow Nebraska to consistently claim seniority in water rights access over Colorado. The court also accepted the Special Master’s suggestion that flow percentages between Wyoming and Nebraska be split 25%-75% during irrigation season. In New Jersey v. New York, the court found that New York could not completely block off its upstream flow of the Delaware River from downstream New Jersey, nor could New Jersey stop New York from using all of its water; the court instead came up with a limitation on New York’s diversion, as suggested by the Special Master, of 440 million gallons of water per day (while maintaining minimum flow requirements). This was deemed to be an equitable apportionment between the states, with a water compact late being created to further protect the rights of other states along the river; the court held that the apportionment did not constitute a prior appropriation, however.
Interstate Compacts
Interstate compacts are a way for states to enter into enforceable, equitable apportionment agreements for water appropriation / diversion / consumption without judicial interference or determinations. States often come up with compacts, vote on them, and then seek ratification from Congress; congressional ratification acts to allow for enforcement of interstate compacts against non-compliant states as well as to take the dormant Commerce Clause out of the picture and let states limit out-of-state water usages. Recently, very few water compacts have been successful in actually allowing for the regulation and administration of water rights on an equitable apportionment basis (especially in the west). Because older compacts were created before the modern environmental movement, there are no clear protections outlined for environmental interests. As such, environmental statutes such as NEPA, ESA, and CWA can be applied against compacts to in supersede certain compact allocations in favor of federal environmental requirements.
Groundwater has generally been understood by courts to be an included aspect of interstate water compacts.
Judicial enforcement of compacts is generally conducted through applications of contract law and statutory interpretation; where a compact is clear when put into the context, the text of the compact is conclusive. When it is still ambiguous, courts look at the negotiation history and legislative history relevant to the issue to properly interpret the compact. For remedies, courts look to come up with “fair and equitable solution[s] that [are] consistent with the Compact terms.” As seen in Texas v. New Mexico, absent any express language limiting judicial review of the issue, the power of the commissions set up by the states and that of federal courts are seen to be complementary when making determinations on interstate water compact issues; monetary damages are also applicable, as are “specific performance” damages of actual water payments.
Congressional Apportionment
Congress has directly apportioned interstate waters through its own acts (i.e. through the Boulder Canyon Project Act, which although facially read to simply pre-ratify future water compacts by the associated states for certain allocations, was actually construed by SCOTUS to constitute a congressional allocation / division of interstate water between three states). Congress can also indirectly apportion interstate waters by implementing federal water projects (through the BoR or Corps of Engineers) and then deciding where the diverted water from those projects should go to. Finally, federal regulatory programs such as the CWA, NEPA, Federal Power Act, and Wild & Scenic Rivers Act can be used to dictate water interests and apportionments (overriding existing compacts).
The Colorado River: A Case Study
The Colorado River Compact involved 2 7.5 million acre feet per year apportionments to states of the Upper Basin (parts of Arizona, Colorado, New Mexico, Utah, and Wyoming) and Lower Basin (parts of Arizona, California, and Nevada); the entire basin was split by Lee Ferry, a river in Arizona. The Compact left Indian federal reserved rights untouched, allowed the Lower Basin to receive an additional 1 million afa for beneficial consumptive use (based on the fact that an entire Colorado River tributary existed in Arizona holding 1.3 million afa flows), allowed for surplus water to be apportioned to Mexico if deemed allowable by treaty by the United States, and required 7.5 million afa to be available at the Lee Ferry border every year. The Compact excluded allocations for power usages. This Compact was agreed to by all of the states except for Arizona, who claimed that it received no protection from apportionments for the growing state of California (California was authorized under both the Compact and the Boulder Canyon Project Act pre-ratification to receive 4.4 million afa, Nevada 300,000 afa, and Arizona 2.8 million afa; it was unclear as to whether the Gila River tributary to the Colorado River, wholly existing in Arizona, was to count towards Arizona’s allotment / surplus or not, and whether California had a right to use it). Arizona eventually brought suit and won in Arizona v. California, receiving 2.8 million afa on top of full access and usage of the Gila River 1.3 million afa flow for herself.
Mexico receives 1.5 million afa (10% of the estimated Colorado River flow) at the US-Mexico border as a party of a set of treaties between the two states (one factor in the treaty consideration was the amount of water generated in each country, attributing to river flow, from precipitation — Mexico is highly arid in the area and thus provides little to no precipitation water to the river).
