Best if printed in landscape.
flows from location to location, and it crosses state boundaries. Thus
a question that needs to be considered is how do we allocate water among
various users located in neighboring states, especially since water law
is primarily under state jurisdiction.
in allocating water among the states arise due to several facts.
- States are quasi-sovereigns.
do not want them to go to war with one another over an issue such as who control the water that flows from one state to another.
- States are not allowed to reach an agreement
with each other without Congressional involvement (discussed later).
- The U.S. Constitution
requires that disputes between states be litigated in the U.S. Supreme
This page introduces three concepts for allocating water among states -- equitable apportionment, interstate compacts, and Congressional action.
v. Colorado, US Supreme Ct, 1907
(p. 461 of Gould's 7th ed.)
- Kansas sued Colorado
in the Supreme Court accusing Colorado of threatening to deprive Kansas
of its accustomed flow of the Arkansas River and the associated subterranean
water. [Recall that original jurisdiction for cases involving two or
more states lies with the U.S. Supreme Court.]
- Kansas argues it
is entitled to the continual flow of the stream; and that even though
the rule has been modified in the western states according to the doctrine
of prior appropriation, a state may not destroy the rights of another
- The relationship
among states is equality of right; each state stands on the same level
with all the rest.
- The decision must
recognize the rights of both states and yet establish justice between
- Nations would settle
such disputes by treaty or force; negotiations or war.
- Colorado's withdrawals
have been detrimental to Kansas, but compared to the benefits of the
irrigation in Colorado, the equality of right and equity between the
states forbids any interference with Colorado's actions.
- Colorado's appropriation
has diminished the water flow into Kansas; the appropriation has allowed
the reclamation of large tracts of Colorado land; the appropriation
has injured parts of the Arkansas Valley but has not affected the rest
of the Valley or Kansas.
- But if Colorado's
use continues to expand, there will be a time when there is no longer
an equitable division of the benefits; that is, an equitable apportionment
of benefits between the states.
Supreme Court has original jurisdiction over disputes among states; even
though the water rights of private parties are being determined by this
litigation. A state can bring an action against another state as the trustee
or representative of its citizens.
court sought an equitable apportionment of this interstate resource; that
is, an equitable division of benefits in appropriating the water
of this interstate river.
- The court compared
the detriment to Kansas against the benefit to Colorado. The water in
Colorado transformed thousands of acres into productive land and this
diversion/use of the water has not imposed a detriment on Kansas.
- But the equitable
apportionment of benefits may be thrown out of balance if in the future
Colorado expands its use of the water, further depletes the flow of
this interstate river, and injures Kansas' substantial interests. In
that case, Kansas may institute another proceeding.
apportionment is the Supreme Court's criteria for allocating water among states.
Supreme Court is cautious about going too far with its decisions. Why? The states are quasi-sovereigns, the problems are
complex, and the situation changes (whereas a court decree may be difficult
- For these reasons,
the court would urge the states to negotiate resolutions and establish
a procedure for resolving present and future disputes.
- The court relies
on a "special master" to receive evidence and prepare a report that
includes a findings of fact, conclusions of law, and recommendation
to the court.
- See http://www.supremecourtus.gov/docket/SpecMastRpt/SpecMastRpt.html; e.g., Original No. 126, Kansas v. Nebraska, et al. and
Original No. 129, Virginia v. Maryland.
- It is interesting that a 1994 Special Master report addresses the dispute between Colorado and Kansas over the Arkansas River. Apparently the 1907 U.S. Supreme Court decision (addressed above) did not resolve all the issues. Note that the states had entered into an interstate compact in 1948 (1949?) -- still the issues were not totally resolved.
Supreme Court has issued only several apportionment decrees, and has refused
to do so in several cases; for example, when state has not shown serious
detriment to substantial interests (Kansas), has not shown serious detriment
to navigation, agriculture, fish life, water quality, potential water
power (Connecticut); or was guilty of laches (Washington).
the federal government have to be represented in these suits?
- U.S. is an indispensable
party due to its authority over unappropriated water to control navigation.
- U.S. can decide
whether to intervene (in the Colorado case, the U.S. did intervene, whereas in Texas
it did not). It chose to intervene in the Nebraska case to manage its
- If federal government
takes its rights from the state, the federal government will be bound
by the litigation even though the federal government did not participate
in the case.
- Note the difference
between a case where the federal interest is water for reclamation
(federal government acquires its rights from the state) and navigation
(federal government is responsible for interstate navigation).
state does not determine equitable apportionment; states are not encouraged
to consider equitable apportionment in resolving a dispute involving an
interstate river that has not be allocated through equitable apportionment.
Instead, the state is expected to apply its law. But remember, the state
does not have jurisdiction over water in another state or over a water
user in another state, unless the court somehow has acquired in personam
jurisdiction. But states are required to adhere to an equitable apportionment
if one has been made.
earlier decisions pp. 469, 475-476.
- Is the subsequent legal proceeding an enforcement action or a modificaiton proceeding? An enforcement action inquires whether the alleged conduct violates a right established in the earlier decree. There is no need for the plaintiff to show injury. A modification involves "the same sort of balancing of equities that occurrs in an initial proceeding." The plaintiff must show a substantial injury to be entitled to a modification.
- Restated -- Modification
(reweighing the equities; plaintiff must show injury) v. enforcement (determine
whether the conduct violates the decreed right).
else is considered in determining an equitable apportionment?
v. Colorado, US Supreme Ct, 1922
(not included in Gould's 7th ed.)
- Colorado was allowing
water to be diverted from the Laramie River and into another watershed;
this diversion prevented the water from flowing into Wyoming.
- Wyoming argues
the Colorado diversion should be stopped for two reasons: the water
should not be removed from the watershed, and Wyoming's users had priority
based on time of initial appropriation.
- Both states recognize
and apply prior appropriation theory and Wyoming is not trying to impose
rules on Colorado that Colorado does not already recognize.
- Wyoming's first
argument fails because the prior appropriation laws in neither state
requires that the water be used in its watershed.
- Colorado argues
it can make better use of the water -- Court recognizes the value of
water in both states; the argument did not persuade the Court.
- Since both states
adhere to the rule of prior appropriation, it will be applied to resolve
- Court then appropriated
the dependable flow: 20,000 acre-feet to Colorado, 4,250 acre-feet to
Colorado, 272,500 acre-feet to Wyoming, and no more than 15,500 acre-feet
to Colorado for the Laramine-Poudre Tunnel.
- As the authors
indicate, this meant 39,750 acre-feet to Colorado and the remainder
- The state law that
both jurisdictions adhere to, such as prior appropriation, especially
when one state has considerable investments and the other state has
not yet made such investments. Protecting the value of existing investments.
- Economic impact
of the uses
- Did not put any
weight on the location of use (interbasin transfer) since both states
allow such transfers.
allocation - grant one state a specified amount of water and allow
the other state to use the rest; with such a decision, the risk of water
not being available is borne entirely by the second state.
- recognize the difference between amount diverted and amount consumed.
else does the court consider in determining an equitable apportionment?
Jersey v. New York, US Supreme Ct, 1931
(p. 467 of Gould's 7th ed.)
- New Jersey seeks
to enjoin New York from diverting water from the Delaware River.
- New York intends
to divert water from the Delaware River to the Hudson River to provide
more water for New York City.
- New Jersey seeks
strict application of riparian doctrine.
- Both states have
substantial interest in the river, but New York cannot take it all,
nor can New Jersey demand that its flow be undiminished.
- The effort always
is to secure an equitable apportionment.
- Different considerations
come in when we are dealing with independent sovereigns having to regard
the welfare of the whole population.
- The river must
be rationed among those who have power over it.
- New Jersey is concerned
about navigation, water power, sanitary conditions, salinity, municipal
water supply, cultivation, and recreational uses.
- The Special Master
found little potential for water power, and that the diversion will
not materially affect the river; however there will be some impact on
recreation and oyster fisheries, but even these can be mitigated by
reducing the daily diversion to 440 million gallons (rather than 600
million gallons), constructing a sewage treatment plant and releasing
water during periods of low flow.
- The removal of
water to a different watershed must be allowed at times.
- Imposed conditions
on New York's use of the water: must build a sewage treatment plant,
untreated industrial waste may not be discharged into the Delaware River,
during times of low flow, New York City must release some of its stored
water into the river, and the diversion does not give New York a superior
right over New Jersey or Pennsylvania with respect to the Delaware River.
- Navigability, water
power, sanitary conditions, industrial use, salinity, oyster industry,
municipal water supply, recreation
- Relied on master
to consider the situation.
- Reduced the amount
to be diverted
- Required releases
in the future (imposed a condition on the use)
- Required construction
of a water treatment plant
factors to consider.
v. Wyoming, US Supreme Ct., 1945
(p. 469 of Gould's 7th ed.)
- Nebraska sued Wyoming
over the Platte River, and Colorado is impleaded as a defendant.
- Platte River in
Nebraska is wide and shallow with a high infiltration rate.
- Irrigation at the
Wyoming-Nebraska border is the subject of this litigation.
- Pathfinder Dam
is in Wyoming; the water from this impoundment is used to irrigate some
land in Wyoming and considerable land in Nebraska.
- Wyoming ranchers
and some Colorado producers irrigate land above Pathfinder.
- Bureau then started
the Kendrick project to irrigate more Wyoming land.
- Nebraska sued because
this last project and an extended dry spell left the Platte River short
of water. The Nebraska users had priority based on the time of putting
the water to a beneficial use.
- States have not
been able to settle the controversy through negotiations.
- Court decided to
apply prior appropriation doctrine.
- But prior appropriation
doctrine will not be strictly applied; all factors which create equities
in favor of one state or the other must be weighed; if an allocation
between appropriation States is to be just and equitable, strict adherence
to the priority rule may not be possible.
- Apportionment calls
for the exercise of an informed judgment on a consideration of many
- Priority of appropriation is the guiding principle. But physical
and climatic conditions, the consumptive use of water in the several
sections of the river, the character and rate of return flows, the extent
of established uses, the availability of storage water, the practical
effect of wasteful uses on downstream areas, the damage to upstream
areas as compared to the benefits to the downstream area if a limitation
is imposed on the former . . . are all relevant factors.
- The concern is
that decreased use in Colorado may not benefit Nebraska water users.
Does the upper appropriator lose more than the lower appropriator benefits?
There is a loss of water in transit.
- The fact that the
same amount of water may produce more in Nebraska than it does in Colorado
is immaterial. The established economy in Colorado is based on existing
use and should be protected.
- Similar to Colorado,
decreasing the water use in Wyoming will adversely impact many users
but may not benefit Nebraska prior appropriators.
- The Wyoming reservoirs
must adhere to the priorities held by Nebraska users.
- For the remainder
of the river, a percentage appropriation is adopted; not the detailed
decree argued for by the US and Nebraska; nor the mass allocation urged
by Wyoming. How the states allocate their portions is an internal matter.
- DISSENT: court
should have dismissed the case rather than decree an allocation that
is binding at all times, especially since the decree is based on abnormally
low water levels.
all factors that create equities; need whatever is necessary to make a
decision that leads to a "just and equitable allocation"
consider time of initiating use (since the state recognize prior appropriation)
but also physical and climatic conditions, consumptive uses, return flows,
extent of established uses, availability of storage, effect of wasteful
uses, damages compared to benefits.
nature of impact of making a change, water will be lost in transit if
change is made, benefits of change will not outweigh losses result from
of implementing a court order and the benefits of implementing the court
v. New Mexico, US Supreme Ct., 1982
(p. 477 of Gould's 7th ed.)
- A Colorado firm
proposes to divert water from the Vermejo River; a small river that
has no users in Colorado, but one that is already extensively developed
in New Mexico. The proposed diversion would remove the water from the
- The Special Master
found that the river is essentially consumed by the New Mexico users
and that under the principles of prior appropriation, Colorado would
not be entitled to any of the water, but under the doctrine of equitable
apportionment, Colorado is entitled to some water.
- The Special Master
also found that any injury to New Mexico would be to a user that has
never been an economically feasible operation.
- Equitable apportionment
is a flexible principle that calls for the exercise of an informed judgment
on a consideration of many factors to secure a just and equitable allocation.
- Special master
considered efficiency of use, and the balance of benefits to one state
against the harm to the other state -- New Mexico objects to these considerations.
- There must be no
waste and senior appropriations must be exercised with reasonable diligence.
- Equitable apportionment
requires reasonably efficient use, and affirmative duty to conserve
and augment the water. Duty to employ financially and physically feasible
measures adopted to conserve and equalize the natural flow.
- Have the states
taken reasonable conservation measures? Have they take reasonable steps
to minimize the amount of diversion that will be required? Also weigh
the harms and benefits to the competing states. Established uses v.
- Has New Mexico
adopted reasonable conservation measures to offset Colorado's proposed
use? Who gains the benefit of the conservation (Colorado?) And who bears
the cost (New Mexico?)
- Priority of appropriation
will not always prevail; instead equitable allocation is based on balancing
harms and benefits among the completing states
- Yet the case is
remanded for the Special Master to clearly state factual findings supporting
the reliance on the explanation that a Colorado diversion would not
materially injure New Mexico because New Mexico could implement conservation
practices, and the Colorado benefits outweigh the injury to New Mexico.
- The court imposed
a standard of clear and convincing evidence.
- New Mexico must
bear the initial burden of proving the Colorado diversion will cause
a real or substantial injury.
- Colorado must then
establish that a diversion should nevertheless be permitted under the
doctrine of equitable apportionment; Colorado, in order to prevail,
must show with clear and convincing evidence that without the Colorado
diversion, New Mexico would be using more than its equitable share of
the benefits of the stream.
- CONCURRING Court
should not conclude that New Mexico's use is wasteful or unreasonable
just because there are large losses through the transport of the water;
New Mexico's duty to conserve is limited to measures that are financially
and physically feasible.
- Should weigh efficiency
of New Mexico's use against the cost of improving its efficiency; should
not weigh the inefficiency of one state against the potential gain of
another state; should be careful in weighing the impacts of the diversion
on an established use against the impacts of a potential use. Transit
losses do not necessarily equate to waste or unreasonableness
- Weigh the harms
and benefits of competing states.
- Require reasonably
efficient use of the water; affirmative duty to take reasonable steps
to conserve and augment water supply; financially and physically feasible
measures to conserve and equalize the natural flow.
- Rule of priority
is not sole criterion; will not be applied if hardship on junior is
less than benefits to senior; economics of existing use are considered,
but equities of future use may justify negative impact to current user.
Are the states pursuing conservation practices?
v. New Mexico, US Supreme Ct., 1984
(p. 482 of Gould's 7th ed.)
- Colorado has burden
of presenting clear and convincing evidence that the diversion is necessary
to balance the unique interests involved in the water rights between
the states. The diversion will be allowed only if actual inefficiencies
in the present uses or future benefits from the other uses are highly
- The Master describes
New Mexico's use as a failed reclamation project.
- Yet, Colorado could
not point to specific measures New Mexico could take to conserve water;
Colorado has not identified any financially and physically feasible
means to eliminate or reduce inefficiency; and there is no evidence
that Colorado has taken reasonable steps to minimize the amount it needs
- Society's interests
requires hard facts, not suppositions or opinions; Master admitted to
the speculative nature of the benefits; absolute precision is not required,
by long-range planning and analysis are required.
- New Mexico, on
the other hand, identified harms that would result from the diversion;
State is not entitled to a share of the water just because the river
originates in that state; appropriated rights turn on the benefits and
harms, and efficiency of uses.
- State has burden
of identifying conservation practices that would preserve the water
supply; this burden requires clear and convincing evidence. Practices
that are financially and physically feasible; can eliminate or reduce
inefficiency; show how existing uses might be improved, clear evidence
that a project is far less efficient than most other projects.
- But absolute precision
in forecasts is unrealistic
- Point of origin
of water is not critical
- Court considers
benefits, harms and efficiencies of competing uses.
Compacts - allow states to reach their own agreement. Congress
must authorize the states to negotiate; Congress must approve the compact
once an negotiated agreement is reached, Congressionally approved agreement
assumes the character of federal law.
v. La Plata River & Cherry Creek Ditch Co., US Supreme Ct., 1938
(p. 486 of Gould's 7th ed.)
- Colorado state
engineer shut off plaintiff's water in order to administer the water
according to the interstate compact between Colorado and New Mexico.
- States can negotiate
an agreement between themselves but only after Congress has authorized
them to do so, and then consents to the agreement after it has been
- The plaintiff's
claim extends back to 1898 and 1928; but if they were allowed to divert
their quantity, none would remain available for New Mexico.
- Colorado courts
held that the compact was not a defense and the state engineer must
allow the plaintiffs to divert the water.
- The case was then
appealed to the Supreme Court: a water right is a property right, but
Colorado cannot confer on its people more rights than the state has;
the state has the right to an equitable apportionment and that is the
most it can confer on its water users.
- The interstate
compact will be treated as if it was an equitable apportionment set
forth by the Supreme Court; but if the states can negotiate an agreement
and Congress consents to it, the compact will be considered and treated
the same as an equitable apportionment.
- An apportionment,
whether by Congress consenting to a negotiated agreement or by the Court,
is binding on the citizens of the states, even if the apportionment
adversely impacts existing rights.
- The compact specified
that the states can rotate, the state engineers were administering such
a rotating use of the water, and the users benefited more by receiving
more water some of the time rather than a little water all the time.
- The compact did
not take any right from water users because the users could acquire
no more than Colorado's equitable share.
- Supreme court upheld
that state engineer must comply with the interstate compact
- Interstate water
must equitably apportioned, even if this means an existing right is
adversely impacted. The user has no more rights than the state and the
state has right only to its equitable apportionment.
- Compact can establish
an equitable apportionment; equitable apportionment is not limited to
- Apportionment in
compact is binding on the states' citizens.
- Compact will be
enforced according to the agreed upon terms; especially when the terms
are "to secure the greatest beneficial use."
Compacts - court will not rewrite the compact
between federal government and state; not just states - several such situations
are mentioned; set up commissions to implement the compact; what power
does the federal membership have over the others? Are they a equal partner
or a partner with authority to veto?
2007 lawsuit by Montana against Wyoming -- see http://www.doj.mt.gov/news/releases2007/20070201.asp; note the link to the complaint. Also, see Yellowstone River Compact -- ratified by North Dakota and codified at N.D.C.C. chap. 61-23.
government take control of a project -- TVA.
River Compact -- see N.D.C.C. 61-23; no commission between North Dakota and Montana;
commission between Montana and Wyoming.
v. California, US Supreme Ct., 1963
(p. 494 of Gould's 7th ed.)
- The issue is how
much water are the states of Arizona, New Mexico, and California each
entitled to from the Colorado River.
- The Supreme Court
states that the answer lies in the Boulder Canyon Project Act passed
by Congress in 1928.
- There was a desire
to develop the Colorado River but its terrain, variable water flow,
and potential associated projects were so large that the federal government
had to take on the project.
- States of the northern
basin (Wyoming, Colorado, Utah, and Nevada) feared that the other states
in the basin (especially California) would consume the water.
- Negotiations among
the seven states resulting in only agreeing that each portion of the
basin would be entitled to 7.5 million acre-feet annually.
- Subsequently, Congress
passed the Project Act in which it 1) allocated the 7.5 million acre-feet
of the southern basin to California (4
March 28, 2007of the surplus water), Nevada (300,000 acre-feet) and
Arizona (2.8 million acre-feet), 2) exempted the Gila River from these
allocations and the obligation to meet the flow of the Colorado River
into Mexico (much to Arizona's relief), and 3) made the Act contingent
on six states ratifying the agreement (rather than all seven) and that
California's legislature agree to the 4.4 million acre-feet limit.
- The allocation
of the southern basin is controlled by the federal legislation -- equitable
apportionment or the compact; in this case, Congress provided its
own method for allocating the water
- The allocation
pertains only to the mainstream and exempts the tributaries.
- During times of
shortage, the 3 southern states are not required to bear the shortfall
proportionally; the secretary must follow the standards set in the act,
but is free to choose among recognized methods of apportionment or devise
a reasonable method. The court relies on section 5 of the act (secretary's
authority to enter into contracts with the states) as granting the secretary
authority to administer the allocation.
- DISSENT -- too
much power given to the secretary; instead the secretary should be expected
to apply equitable principles as modified by the compact and California
- DISSENT -- the
tri-state compact was never adopted by the southern states.
v. Nebraska, US Supreme Ct., 1982
(not included in Gould's 7th ed.)
- Nebraska has a
statute that restricts the withdrawal of groundwater that will be used
in another state.
- Landowner has contiguous
land in Nebraska and Colorado. State enjoined using water from the Nebraska
well to irrigate the Colorado land; Nebraska court held that ground
water is not an article of commerce.
- Hudson case --
injunction, based on a New Jersey statute, upheld because the statute
was justified as a regulatory measure and did not amount to a taking
- City of Altus --
Texas statute that dealt with interstate transport of water and Texas
law holds water is an article of commerce -- statute was unconstitutional.
- Hughes -- state's
interest insufficient to sustain a ban on interstate transfer of minnows,
overruled Geer case - public ownership theory was terminated?
- Water is critical
for human survival and should be management at the state and local level;
but the Ogalla aquifer is multi-state in nature, that is, a federal
- State's interest
and competency, and claim of public ownership of the water are not enough
to overcome the claim that water is not an article of commerce.
- Water is an article
- Nebraska imposes
more restrictions on interstate transport of water than on intrastate.
- Reciprocity provision
is facially discriminatory and does not survive the subsequent strict
scrutiny. The reciprocity provision does not significantly advance the
state's legitimate conservation and preservation interests and is not
narrowly tailored to serve that purpose.
of the Missouri River dispute - recreational uses in the northern states
versus navigational uses in the southern states.
- Previous cases
primarily addressed consumptive or diversionary water uses; the current
plan primarily centers on in-stream uses, that is, navigation and recreation. This
raises several questions.
- Is in-stream
use of water for navigation or recreation a beneficial use? States
split; we do not have a clear answer for interstate water.
89-03-01-07. "Necessity of works and construction of works
for a ... water permit. A permit application may only be considered
if works are associated with the proposed appropriation."
That is, North
Dakota will not grant water permit for an in-stream use.
Flows In Washington, Department of Ecology
flows are usually defined as the stream flows needed to protect
and preserve instream resources and values, such as fish,
wildlife and recreation. Instream flows are most often described
and established in a formal legal document, typically an adopted
- Is the
current Master Water Control Manual plan, with its focus on
in-stream uses, relevant in resolving other interstate disputes
over Missouri River water (such as questions about who can divert
March 28, 2007