Interstate Water Disputes and Allocations

Question 1

What are the four legal devices/mechanisms used to resolve interstate water disputes?

Answer 1

1. Congressional Apportionment
2. Interstate Compacts
3. Equitable Apportionment
4. Private Litigation Involving Interstate Water

Question 2

Congressional Apportionment

Answer 2

First arose in 1963, when Court in Arizona v. California held that Congress could apportion waters of interstate waterways by statute.
Congressional authority comes from Commerce Clause.
States are bound by results because of Supremacy Clause.
Very rare - has only been done twice.

Question 3

Advantages of Congressional Apportionment for States

Answer 3

1. Relative strength of negotiating position (e.g., Harry Reid—one state may be well positioned if they have very influential Senator)
   - Horse trading
2. Appropriation dollars
   - Congress adds dollars to deal (e.g., Congress adds provision to protect California fisheries and allocates funds to that purpose)
   - “Sweeteners” to the deal

Question 4

Disadvantages of Congressional Apportionment for States

Answer 4

1. State legislatures may resist such big deals involving their state that they have no say in
2. States may have very weak negotiating position (e.g., may not have a “Harry Reid”)

Question 5

Interstate Compacts

Answer 5

Most commonly used mechanism.

Governor’s offices of states come together and negotiate.
- Almost like treaties but called compacts with states

But still need congressional approval - Compact Clause (Art. 1 Sect. 10)
Compact Clause - No state shall enter into compacts with another state without congressional approval.

Congressional consent can be given before or after final agreement by states.
Often Congress is looking at how states are dealing with Tribal interests because there’s a federal interest there.

Congress changed provision of Great Lakes Compact that originally allowed Ontario and Quebec to participate in compact governance.

Have a federal statute, but it’s a federal statute that is ratifying a state agreement (versus Congressional apportionment)

Often get formation of a commission in compact by Congress.

Question 6

Advantages of Interstate Compacts for States

Answer 6

1. Via Supremacy Clause, state’s compact obligations can be enforced under federal authority, taking precedence over inconsistent state laws. So, compact controls state water law and defeats any water right granted by state that exceeds or violates state’s entitlement under compact.
2. Congress’ approval of an interstate compact can take the dormant Commerce Clause out of play and enhance a state’s authority to prevent the export of water to other states.

Question 7

Equitable Apportionment

Answer 7

Supreme Court has obligatory original jurisdiction, not jurisdiction through certiorari
- Supreme Court suddenly becomes the trial court
- Article III, Sect. 2—Supreme Court has original jurisdiction over cases between the several states

States represent their water right holders under parens patriae doctrine. As result, water right holders bound by decree.

Court typically appoints a Special Master to hear motions, conduct evidentiary proceedings, issue recommendations to Court.

Question in these cases is what law to apply (e.g., Colorado one of biggest proponents of PA until they have dispute with California, who was diverting water from Colorado River long before Colorado was)

Court will weigh harms and benefits to the states and may only consider priority (i.e., PA is not sole criterion).

Binding decision