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Interstate Water Issues

Water 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.


Interstate Allocation

Challenges in allocating water among the states arise due to several facts.

  • Water law is fundamentally state law.
  • States are quasi-sovereigns.
  • The legal system is expected to provide a mechanism(s) for states to resolve water issues in a civil manner.
  • 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 Court.

This page introduces three legal concepts for allocating water among states -- equitable apportionment, interstate compacts, and Congressional action.


Equitable Apportionment

Kansas v. Colorado, U.S. Supreme Ct, 1907 (p. 449 of Weber's 9th 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 state.
  • 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 them.
  • 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.


U.S. 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.

The 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.


Equitable apportionment is the Supreme Court's criteria for allocating water among states.


U.S. 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 to revise or update).

  • For these reasons, the court urges 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.supremecourt.gov/specmastrpt/specmastrpt.aspx; 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 (Original No. 105, Kansas v. Colorado, et. al.). 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.


The U.S. Supreme Court has issued only several apportionment decrees, and has refused to do so in several cases, for example, when a 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).


Does the federal government have to be represented in these suits?

  • United States is an indispensable party due to its authority over unappropriated water to control navigation.
  • United States can decide whether to intervene (in the Colorado case, the United States intervened, whereas in Texas it did not). It chose to intervene in the Nebraska case to manage its reclamation projects.
  • If the federal government receives its water 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).


A 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.


Modifying earlier decisions pp. 460-461 (Weber's 9th Ed.).

  • Is the subsequent legal proceeding an enforcement action or a modification 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 occurs 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).


What else is considered in determining an equitable apportionment?

Wyoming v. Colorado, U.S. Supreme Ct, 1922 (noted on pp. 453-454 in Weber's 9th 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 interstate disputes.
  • 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 to Wyoming.
  • 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.

Mass 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.

Follow-up:  recognize the difference between amount diverted and amount consumed.

What else does the court consider in determining an equitable apportionment?

New Jersey v. New York, U.S. Supreme Ct, 1931 (noted on p. 455 of Weber's 9th 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

More factors to consider.

Nebraska v. Wyoming, U.S. Supreme Ct., 1945 (p. 455 of Weber's 9th 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 factors.
  • 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.


Consider all factors that create equities; need whatever is necessary to make a decision that leads to a "just and equitable allocation"

  • Will 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.
  • Speculative 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 change.
  • Difficulty of implementing a court order and the benefits of implementing the court order.

Colorado v. New Mexico, U.S. Supreme Ct., 1982 (p. 462 of Weber's 9th 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 watershed.
  • 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. proposed uses.
  • 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?

Colorado v. New Mexico, U.S. Supreme Ct., 1984 (p. 466 of Weber's 9th 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 probable.
  • 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 to divert.
  • 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.

Interstate Compacts

Interstate 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, a Congressionally approved agreement assumes the character of federal law.

Hinderlider v. La Plata River & Cherry Creek Ditch Co., US Supreme Ct., 1938 (p. 471 of Weber's 9th 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 developed.
  • 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 judicial proceeding.
  • 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."

Litigating Compacts - court will not rewrite the compact

Compacts are between the federal government and the states; not just states - several such situations are mentioned.

  • Some compacts 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?
  • Yellowstone River Compact -- see N.D.C.C. 61-23; no commission between North Dakota and Montana; commission between Montana and Wyoming.

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.



Federal government take control of a project when issues cannot be resolved by other means, e.g., Tennessee Valley Authority??.  See http://www.tva.com/abouttva/history.htm.


Congressional Action

Arizona v. California, US Supreme Ct., 1963 (p. 480 of Weber's 8th 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 resulted 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 (4,400,000 acre-feet), 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 the California's legislature agree to the 4.4 million acre-feet limit.
  • The allocation of the southern basin is controlled by the federal legislation, not prior appropriation, 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 three southern states are not required to bear the shortfall proportionally among themselves; 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 limitation.
  • DISSENT -- the tri-state compact was never adopted by the southern states.


Law of the River (http://www.usbr.gov/lc/region/g1000/lawofrvr.html): "The Colorado River is managed and operated under numerous compacts, federal laws, court decisions and decrees, contracts, and regulatory guidelines collectively known as the 'Law of the River'."

Note the international issue relating to the Colorado River, that is, how much water must the United States allow to flow into Mexico via the Colorado River?


Sporhaus v. Nebraska, US Supreme Ct., 1982 (not included in this section of Weber's 9th ed., but see p. 630)

  • 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 of property.
  • 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 interest.
  • 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 of commerce.
  • 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.

Status of the Missouri River dispute - recreational uses in the northern states versus navigational uses in the southern states.

  • What is the status of the Missouri River? There is no U.S. Supreme Court equitable apportionment; there is no interstate compact; there is no Congressional legislation.  What do we have?
  • The Missouri River Mainstem Reservoir System consists of six dam and reservoir (lake) projects constructed, operated and maintained by the U.S. Army Corps of Engineers for flood control, navigation, irrigation, hydropower, water supply, water quality, recreation, and fish and wildlife habitat. To achieve these multipurpose benefits, the projects are operated as a hydrologically and electrically integrated system. Taken from Introduction to Missouri River Master Water Control Manual(this is a very large file).
    • What is the authority of the Corps of Engineers? See ETSI Pipeline Project v. Missouri, et al, 484 U.S. 495 at http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=484&invol=495
    • Note the role of the Flood Control Act of 1944
    • The Secretary of the Interior exceeded the authority Congress delegated to that office by entering into a 40-year contract with ETSI Pipeline Project to withdraw up to a certain amount of water per year from Lake Oahe, a reservoir located on the Missouri River in South Dakota, for use in an interstate coal slurry pipeline.
    • "...the Interior Secretary does not possess the authority to execute a contract to provide water from an Army reservoir for industrial use without obtaining the Army Secretary's approval... "


Back to the current issue:

  • The challenge is operating the projects for the purposes of flood control, hydropower, water supply, water quality, irrigation, navigation, recreation, and fish and wildlife, including the issues of how storage in the Mainstem Reservoir System is divided and how water is released during navigation and nonnavigation periods.
  • Several alternatives were studied and a plan was chosen:

    "The Selected Plan includes several changes from the previous Master Manual's water control plan. The modifications are as follows:

    • drought conservation measures;
      • "navigation service level and season length would be reduced to conserve stored water in the upper reservoirs during extended drought periods ... which would most likely coincide with a national drought emergency."
    • unbalancing of the upper three reservoirs;
      • "The unbalancing process is rotated among the upper three reservoirs on a 3-year cycle. ...unbalancing provides for resident fishery production by lowering one of the three reservoirs allowing vegetation to grow around the rim. The subsequent year the reservoir is refilled, inundating the vegetation around the perimeter, which is used by adult fish for spawning and by young reservoir fish to hide from predators. The third year, the reservoir rises during the fish spawn and then slowly falls for the remainder of the year so that it is positioned to be at low elevation the following year. Unbalancing would also provide more emergent sandbar and shoreline habitat for the Endangered Species Act (ESA) listed birds."
    • non-navigation flows; and
      • "minimum flows for periods when navigation is not supported during droughts, or other "non-navigation" periods. These flows provide for water supply to the thermal powerplants and other municipal and industrial intakes on the river or reservoirs... dams will be regulated to ensure adequate flows to serve water supply in the river reaches downstream of the System and between the System reservoirs"
    • an adaptive management process."
      • "used to implement changes designed to improve the benefits provided by the System, including benefits to the threatened and endangered species."

    taken from Record of Decision Missouri River Master Water Control Manual Review and Update

  • The plan emphasizes in-stream uses even though it acknowledges diversionary uses (e.g., irrigation, municipal, industrial); does the plan resolve issues arising over diversionary uses?
  • 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.
      • N.D.A.C. 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.
      • Instream Flows In Washington, Department of Ecology

        "Instream 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 state rule."

      • 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 water)?

Closing Thought

Interstate water disputes have generally been resolved by 1) U.S. Supreme Court exercising its original jurisdiction over litigation between states, 2) states negotiating and Congress approving an agreement (i.e., an interstate compact), or 3) Congress directing an allocation of water among states.




Email:  david.saxowsky@ndsu.edu

This material is intended for educational purposes only. It is not a substitute for competent legal counsel. Seek appropriate professional advice for answers to your specific questions.

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