A historic agreement between the federal government, two states, and a private power company means that four dams on the Klamath River are potentially slated for decommissioning and removal. The Klamath River flows from Oregon through California before finally emptying into the Pacific Ocean. The amended Klamath Hydroelectric Settlement Agreement (“KHSA”), signed on April 6th, 2016, may bring unexpected success to a decade-long negotiation involving big energy, tribal water rights, historic wildlife habitat preservation, and the intermingling of state and federal government regulatory agencies.

The first Klamath agreement was formally executed in 2010, and brought together the federal government, the state governments of Oregon and California, PacifiCorp, a large electric cooperative, and over forty additional signatories, including the Yurok and Karuk Tribes. Repeated congressional inaction halted the prior agreement’s implementation after Congress again failed to act before adjourning for the year on December 31, 2015.  On February 2, 2016, the Department of Interior, together with the Department of Commerce, California, Oregon, and PacifiCorp announced they agreed to amend the KHSA, which the parties eventually signed in April. The amended KHSA is the culmination of the Klamath Basin Restoration Agreement executed in 2010 and the Upper Klamath Basin Comprehensive Agreement signed in 2014.

In September, PacificCorp submitted the revised KHSA to the Federal Energy Regulatory Commission (“FERC”) for public review. On October 17, 2016, Interior Secretary Sally Jewell issued a letter to the Commission backing the dam removal.

Initially, the disputes in the Klamath Basin emerged as environmental and conservation groups (such as the Nature Conservancy, American Rivers, and Trout Unlimited) sought to restore 420 miles of historic salmon runs and riparian habitat. Moreover, these groups sought to eliminate the toxic algae blooms proliferating in the idle backwaters above the dams.

The most significant barrier to restoration of the river has been a dispute over the cost of retrofitting the aging infrastructure using modern technology and, alternatively, the cost of dismantling and removing the century-old structures and preparing the land to return to its original state.  According to several studies, the retrofit option would not only result in reduced electricity generation, but would also cost millions of dollars more than the removal.  However, the economic impacts extend beyond the estimated 450 million dollar cost of removal. A group of nearly one hundred, individual property owners have voiced opposition over the impact that dam removal would have on their lakefront property values adjacent to the reservoirs created by the dams.  Thus, a decrease in private property values could also accompany the dam removals.

Under the revised agreement, the states of California and Oregon will create a nonprofit entity, the Klamath River Renewal Corporation, which will take over Pacificorp’s current ownership of the dams.  This new owner will decommission and eventually remove the dams using existing federal authority. Both PacifiCorp ratepayers and a 2014 voter-approved water bond from the State of California has already generated funding for the decommission.

Notably, the most recent amendment lacks many government participation requirements from the original KHSA agreement.  The original agreement required Congress to pass legislation opening up significant funding, as well as the formal release of PacifiCorp from virtually any liability associated with the dam removal process. Congress’s inaction prompted the parties to exclude the Congressional participation requirement from the revised agreement.

In her recent letter of support to the FERC, Secretary Jewell called the plan a “unique opportunity to restore [a] magnificent [r]iver,” which  could help “re-write a painful chapter in our history” but still “[protect] the many interests in the Basin.” Secretary Jewell cited four key reasons for the Interior Department’s support: 1) the likely cost of removal is well below the funds that have already been obtained, 2) reservoir bottom sediment testing showed that chemical concentration levels were safe for release downstream, 3) the removal will result in the reopening of more than four hundred miles of salmon habitat, nearly doubling Chinook salmon production, and 4) the removal would improve water quality.

Although the agreement facilitates the removal of the dams, critics believe it fails to solve many of the problems it originally intended to fix, including resolving disputes over water rights, as well as effectively addressing specific allocations to farmers, wildlife refuges, and Native American tribes.  Notably, the Hoopa Valley Tribe did not sign the KHSA agreement amid concerns regarding certain provisions.  Further, the Klamath Tribes of Oregon did not sign the agreement, because its tribal members had yet to approve it through a popular vote.

While some issues may remain unresolved, the agreement represents an example of multiple entities and interests cooperating to effectuate the removal of the dams.  This agreement, if successful, may be an example and model for future change in the realm of water agreements. Curtis Knight, executive director of non-profit group California Trout expressed cautious optimism about the agreement, “[d]am removal is an essential first step, but certainly not the only step, in this process. California Trout remains committed to the comprehensive vision behind the hard-won Klamath Agreements, which identified a balanced approach to water use, environmental restoration, and community sustainability throughout the basin.”

DeWitt Patrick Mayfield

Image: PacifiCorp’s John C. Boyle Dam in Oregon, one of four dams slatted for decommission under the Agreement. Wikimedia user Bobjgalindo, Creative Commons.

Sources:

Bettina Boxall, Klamath River Dams Moving Toward Removal Despite Congressional Barriers, L.A. Times (Feb. 3, 2016), http://www.latimes.com/local/lanow/la-me-klamath-river-dams-20160203-story.html.

Thadeus Greenson, Feds Announce New Klamath Accord to Remove Dams by 2020, North Coast Journal (Feb. 2, 2016), http://www.northcoastjournal.com/NewsBlog/archives/2016/02/02/feds-announce-new-klamath-accord-to-remove-dams-by-2020.

Paige Blankenbuehler, On The Klamath, A Surprising Win For River Advocates, HIGH COUNTRY NEWS (Feb. 5, 2016), https://www.hcn.org/articles/how-conservatives-handed-environmentalists-what-they-wanted-klamath-dam-removal-without-concessions.

Peter Firmite, Remove 4 Dams on Klamath, Study Urges, S.F. Chronicle (Apr. 4, 2013), http://www.sfgate.com/science/article/Remove-4-dams-on-Klamath-study-urges-4411365.php.

Press Release, Dep’t. of Interior, Parties Agree to New Path to Advance Klamath Agreement (Feb. 2, 2016), available at https://www.doi.gov/pressreleases/parties-agree-new-path-advance-klamath-agreement.

Thadeus Greenson, UPDATED: California, Oregon Governors to Make ‘Major Announcement’ on Klamath, NORTH COAST JOURNAL (Apr. 4, 2016, 11:10 AM),  http://www.northcoastjournal.com/NewsBlog/archives/2016/04/04/california-oregon-governors-to-make-major-announcement-on-klamath.

Press Release, PacifiCorp, Parties Agree to New Path to Advance Klamath Agreement, (Feb. 2, 2016), http://www.pacificorp.com/about/newsroom/2016nrl/klamath-agreement.html.

Jonathan J. Cooper, Officials Sign Unusual Pact to Tear Down Hydroelectric Dams, ASSOCIATED PRESS (Apr. 6, 2016, 6:45 PM), http://bigstory.ap.org/article/235ba2f92ded43f3a8af971a52da17f2/officials-sign-unusual-pact-tear-down-klamath-dams.

Press Release, Dep’t. of Interior, Two New Klamath Basin Agreements Carve out Path for Dam Removal and Provide Key Benefits to Irrigators (last updated Apr. 14, 2016), available at https://www.doi.gov/pressreleases/two-new-klamath-basin-agreements-carve-out-path-dam-removal-and-provide-key-benefits.

Dan Bacher, Tribes, State and Feds Sign Klamath Dam Removal Agreement, DAILY KOS (Apr. 7, 2016, 1:36 AM), http://www.dailykos.com/stories/2016/4/7/1511799/-Tribes-State-and-Feds-Sign-Klamath-Dam-Removal-Agreement.

Will Houston, ‘Milestone’ moment: Klamath River dam removal plan submitted to feds, TIMES STANDARD NEWS (Sept. 23, 2016, 10:41 PM), http://www.times-standard.com/article/NJ/20160923/NEWS/160929892.

David Smith, Jewell supports dam removal in FERC letter, THE SISKIYOU DAILY NEWS (Oct. 16, 2016 8:59 AM)  http://www.siskiyoudaily.com/article/20161019/NEWS/161019616.

Letter from Sally Jewell, Secretary, U.S. Department of the Interior, to Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission (Oct. 17, 2016), available at https://bloximages.chicago2.vip.townnews.com/heraldandnews.com/content/tncms/assets/v3/editorial/3/2f/32f4ad9f-9d5d-5656-a7c4-3a4d5d4eacc2/5806b3b857502.pdf.pdf.


Compromise or Concession?

I. Introduction

The United States Forest Service (“Forest Service”) manages 193 million acres of land with a mandate to do so for the betterment of the public. As an agency within the Department of Agriculture, this usually manifests itself in the “multiple uses” management system that seeks to provide for outdoor enthusiasts, conservationists, and agriculturalists alike. But how does that directive mesh with ski resorts operating on public land that use scarce water resources to create snow? For the past half-decade, the Forest Service has been attempting to pass a regulation that would appropriate privately held water rights originating on National Forests back to federal government control. This article takes a brief look at the history of discord between ski resorts looking to develop on the publicly owned national forests, and the Forest Service. It also examines the lead up to, and consequences of, the most recent regulations imparting more federal control on water resources management in arid western states.

II. 100 years of Conflict

Ownership disputes of water rights developed and used on federal land dates back over one hundred years. The conflict playing out today, that of private landowners pitted against the Forest Service, spawned from restrictions on homesteading around the turn of the 20th century. When Gifford Pinchot, the first United States Forest Service leader, visited Colorado in 1909, westward-expanding citizens accused the Forest Service and the federal government of over-reaching their intended purpose, claiming they were “living in a state of fear.” The Forest Service had just enacted regulations removing tracts of national forest from homesteading availability. Over the last one hundred years, private landowners have butted heads with the federal government wanting more local control in lieu of federal oversight.

The relationship between Colorado water rights holders and the Forest Service is just as contentious today as it was when Pinchot visited the area over a century ago. The contentious relationship most recently manifested itself in a fight for control of water rights and permits that ski resorts use to manufacture snow. In 2004, the Forest Service attempted to create joint tenancy of water rights. In effect labeling themselves as “landlord” and ski resorts as “tenants.” Although applied to a few adjudications nationwide, many states do not recognize the concept of joint tenancy for water rights.

In 2011, the Forest Service issued a new regulation requiring ski area operators who develop new water rights within their ski permit areas to grant their newly acquired water rights to the United States Government. In 2011, the Forest Service applied this rule when the Powderhorn Ski Resort, near Grand Junction, changed hands. The Forest Service required the new owners to transfer their existing water rights to the government, conditioning the approval of the ski area purchase on the new owner’s acceptance of these terms. The ski resort industry fiercely criticized this policy, and many water rights holders were concerned about the supremacy of state water law over a forest service directive.

Traditionally states have had the sole authority to govern water rights creation and ownership within their borders, many water rights users saw this new policy as the federal government’s attempt to impose federal law in an area that state law wholly controlled. Later in 2011, the National Ski Areas Association (“NSAA”) filed suit in National Ski Areas Association, Inc. v. United States Forest Service. In reviewing the Forest Service regulation, the court held it was a new “legislative rule” subject to the requirements of the Administrative Procedure Act. Because the Forest Service did not publish its intent to create a new regulation, and sought no input from the public and those affected by the order, the Forest Service invalidly issued the rule.

Following the 2012 decision, the Forest Service engaged in a lengthy notice and comment period to fulfill its procedural obligations under the Administrative Procedure Act. The results of which yielded a regulation issued December 2015, and went into effect January 2016. The new policy is significantly different from the 2011 attempt, involving concessions and input from all interested parties, not just governmental.

III. Compromise and Concession

The latest iteration of the Forest Service’s attempt to secure title to water rights originating from federal land might best be described by the axiom, “(a) sign that a successful accord has been reached is that no one walks away from the table completely happy.”

Resorts gave up autonomous control of their water rights, which they previously enjoyed, and in return maintain the ability to buy and sell their water rights at will. However, in the wake of the Forest Service’s new policy, when ski resorts are sold and the buyer does not want to purchase the accompanying water rights then the federal government has the right of first refusal. Although a far cry from the Forest Service’s 2011 goal, the new rule provides a way to potentially gain water rights ownership, an important milestone, but the rule was not achieved without sacrifice.

This compromise can seem like a large departure when viewed in the context of the original 2011 Forest Service policy. The Forest Service intended to secure a concrete, real property interest in the water resorts use, the right of first refusal, created by the 2015 rule, is by no means a resounding success of obtaining that goal. Finally, the new regulation requires resorts to document whether their current water permits adequately address their needs or if they are using excess water. Aiming to hedge against water over use and potential resort water grabs, this requirement places an added administrative burden on resorts, but allows the Forest Service to better predict water supply shortages during droughts.

What might be the most telling fact about this process is who abstained from involvement. Refusing to throw punches at or for the Forest Service, local and regional environmental groups declined to extensively participate. Although not actively participating in the process, Ken Neubecker, Associate Director at American Rivers, was quick to caution against the direction the Forest Service is moving in this rule making, “[t]hey have a responsibility to the American public to manage these lands properly, and in the West, that means having some sort of administrative authority over what happens with water.”

IV. Conclusion

This struggle for authority over water rights is far from over. Environmentalists and recreationists alike are interested in what impact the new regulation has on water availability and the ability to enjoy the slopes. The immediate effect is maintenance of the status quo. Resorts still hold their water rights and the Forest Service allows the resorts to buy and sell the rights at their own discretion.

This means security for the snow conditions that draw tourists in from all over the country. It also means less than the ideal amount of Forest Service oversight and control. As long as resorts and other private companies continue to hold rights to water that originate on Forest Service land, in years of drought, water that could potentially assist agriculture, municipalities, or preserve local ecosystems will be in the hands of ski resorts for recreation.

Jackson Zoellner

Image: A backcountry skier atop Silverton Mountain in Silverton, Colorado. Flickr user Zach Dischner of Zach Dischner PhotographyCreative Commons.

Sources:

David Wise, Ending the Budget Wars, THE HILL OP ED (Nov. 5, 2013), http://thehill.com/blogs/congress-blog/economy-budget/189185-ending-the-budget-wars.

Ski Area Water Clause, 80 F.R. 81508, (Dec. 30, 2015) (to be codified at FSH 2709.11, Chapter 50).

Heidi Rucklidge, Ski Area Water Rights: Federal Water “Grab” Resolved?, WELBORN SULLIVAN MECK and TOOLEY PUBLIC LANDS BLOG (Feb. 22, 2016), http://www.wsmtlaw.com/blog/ski-area-water-rights-federal-water-grab-resolved.html.

Allen Best, Who Gave Up What In The Feud About Ski Areas and Water Rights?, MOUNTAIN TOWN NEWS (Feb. 6, 2016), http://mountaintownnews.net/2016/02/06/ski-area-water-rights-forest-lands/.

Nat’l Ski Areas Ass’n, Inc. v. U.S. Forest Serv., 910 F. Supp. 2d 1269 (D. Colo. 2012).

Jason Blevins, Forest Service Backs Off Controversial Water Clause in Ski-Area Permits, DENVER POST (June 18, 2014), http://www.denverpost.com/business/ci_29326058/forest-service-buries-plan-transfer-ski-area-water.

Paige Blankenbuehler, Forest Service Leaves Control of Water Rights to Ski Resorts, HIGH COUNTRY NEWS (Jan. 29, 2016), https://www.hcn.org/articles/new-forest-service-water-policy-leaves-control-of-water-rights-to-resorts.


Introduction

In the dry, arid desert of the United States, a streak of intense rain can leave residents, lakes, and cacti happy. And the sound of constant tapping of raindrops on windows in California, Nevada, and Arizona are soothing and welcome.  However, in Mexico City, these same sounds mean more than puddle hopping and umbrellas.  Instead, it means floodwater overwhelming the sewer systems and days of sludge and mud in citizens’ homes.  Naturally one wonders how a city often immersed in fresh water pouring from the sky has a water crisis resulting in a public health and environmental nightmare.  The answer lies within a history of poor decisions regarding infrastructure.

Mexico’s rainy season is intense and demonstrates that water is naturally meant to be a part of the landscape. Mexico City, the country’s capital, currently has one of the largest populations in the world, and its citizens are desperate for water. So how did Mexico City end up in a situation where—despite this abundance of water—people do not have enough water to bathe, cook, and maintain their communities?

When the Spanish conquered what is now Mexico City, it was an island located within Lake Texcoco, and while the Spanish were “enchanted” by the area, the lake environment did not captivate them.  The Spanish developed an engineering project that depleted the lake of its natural source of life, allowing for maximum expansion and development.  In an attempt to sustain this development, government administration began draining underground aquifers and nearby lakes. This practice remains in place today, centuries later, as the city’s population and demand for fresh water grows daily. City administrators also draw from underground aquifers as a means of supplying water to citizens, further exacerbating a lack of access to clean water by areas outside of Mexico City.

Marco Alfredo, president of the Mexican Association of Hydro-Engineers, best describes the present situation created by historical misuse: “Mexico City’s situation is chaotic and absurd.  We could have natural pure water, but for hundreds of years we have been draining it away so we have created an artificial scarcity.” he argues. “This is not an engineering problem: we have the expertise and the experience. It is also not a problem of economics: we have the financial resources to do what needs to be done. It’s a problem of governance.”

What is the Solution?

Most people are not surprised when they hear about violence associated with the drug cartels in Mexico. However, most might be surprised to hear is the “artificial scarcity” of water has taken on a similarly dangerous face, where Mexicans in poor neighborhoods hold water delivery truck drivers at gun point and rely on “dealers selling purified water” on the streets just to get access to safe drinking water.  One truck driver recalls being attacked by a mob of people: “They were desperate and angry, and they blamed me because I had water.”

The lack of access to clean water is not only a public health and safety concern, but it leaves those with unfettered access to clean water wondering how the gap between human rights and governance in Mexico City leaves families so desperate for water that they are willing to hold a delivery man at gunpoint to get it.

The government’s response to the crisis has been wildly insufficient.  However, activists, conservationists, and engineers in Mexico are trying to change the way the country views its naturally wet rainy season.  Historically, engineers have worked to create elaborate methods of depleting underground aquifers and lakes by piping, trapping, and diverting water.  Engineers and conservationists accept that “water has never completely stopped flowing naturally to where it historically belongs,” and they believe that the dreaded rainfall filling the streets with water could be a solution to Mexico’s crisis.  Valle de Chalco, once a large lake, is located within Mexico City’s watershed. About thirty years ago, the government tapped into and drained nearby aquifers resulting in ground sink.  As rain naturally fell in the area, the Valle de Chalco hole eventually filled with water, replenishing the once large lake.

Activist Elena Burns with the Water for People, Water for Life campaign, argues the Valle de Chalco lake “should be the heart of the solution,” and by making the lake an additional eight meters deep, “we’d have enough water for 1.5 million people.”  Burns, along with environmentalists, conservationists, scientists, and government officials in charge of dealing with the Mexican water crisis, see the value in naturally collecting rainwater in basins like Valle de Chalco. They argue that collecting rainwater in these types of basins can be done for minimal costs, offering long-term sustainability and turning the problem of rainwater and flooding into a solution for the city’s thirsty citizens.

In addition to the frustrations of activists and environmentalists, citizens are tired of waiting for the government to take action and have begun confronting the water crisis head on.  Like some water-conscious Americans, Mexican citizens are looking to water harvesting as a sustainable solution. Many businesses in Mexico have installed catchment systems that collect and filter rainwater. Hayley Hathaway is the director of Casa de Los Amigos, a business that uses a catchment system. She recognizes that the benefit of these systems is not only that they provide citizens with access to clean water, but also that they ease some of the strain on the city’s infrastructure when it floods: “when it rains, it’s just disastrous in the city, with flooding everywhere.  So if everyone had their own rainwater system, it would solve a pretty big chunk of that problem.”  In other words, if families had the means to collect rainfall before it had the chance to accumulate, it could solve two separate water issues at once: flood prevention and drinking water.

Conclusion

Ramon Aguirre Diaz, the director of Mexico City Water Department argues that in reality  water harvesting is not likely to be successful in Mexico because the cost of implementing such infrastructure is not “financially viable.”  But that viewpoint comes as no surprise to the activists and environmentalists that have long recognized the Mexican government’s deep commitment to large, costly projects rather than small, sustainable changes.  Thus, they have turned their attention to grassroots movements and local citizens to institute change little by little, providing access to rainwater harvesting equipment for individual households.  Although change at the municipal level appears to be nearly impossible, the thirsty citizens are motivated and eager to implement changes to help sustain their own families, leaving activists hopeful for the future.  After all, the Aztecs did not build Teotihuacan pyramids in a day.

Lauren Collins

Image: A tormenta (storm) in Monterrey, Nuevo Leon, Mexico. Flickr user Rick González, Creative Commons.

Sources:

Jennifer Collins, Going local to solve Mexico City’s water crisis, DEUTSCHE WELLE, (Oct. 20, 2015), http://dw.com/p/1GqnH .

Jonathan Watts, Mexico City’s water crisis – from source to sewer, THE GUARDIAN, (Nov. 12, 2015), http://gu.com/p/4dmxy/sbl .

Kathryn Dickason, Stanford historian unearths greed-drenched origins of Mexico’s groundwater crisis, STANFORD NEWS, (Oct. 17, 2014), http://news.stanford.edu/news/2014/october/mexico-water-crisis-101714.html .

Marianne Goodland, Could this be the year for rain-water barrels in Colorado?, THE COLORADO INDEPENDENT, (Mar. 8, 2016), http://www.coloradoindependent.com/158191/could-this-be-the-year-for-rain-water-barrels-in-colorado.

Ioan Grillo, Dry taps in Mexico City: A water crisis gets worse, TIME MAGAZINE, (Apr. 11, 2009), http://content.time.com/time/world/article/0,8599,1890623,00.html?artId=1890623?contType=article?chn=world.

 


“CONFLICTS AND COOPERATION: THE PAST, PRESENT, AND FUTURE OF INTERSTATE WATER COMPACTS”

Denver, Colorado                          April 8, 2016

WHAT’S AT STAKE IN THE NEGOTIATION AND LITIGATION OF INTERSTATE WATER COMPACTS?

The final panel of the Symposium  reflected on all the concepts discussed throughout the day, and provided great insight for the future of interstate water compacts.

Professor Jason Robinson, of the University of Wyoming Law School, moderated the three-member panel through a series of pre-scripted questions and insightful answers from each of the panelists.  The panel included: David Robbins of Hill and Robbins, P.C.; Chad Wallace of the Office of the Colorado Attorney General; and Christine Klein of the University of Florida Levin College of Law.

Question 1: “Broadly speaking, what do you view as the most significant shortcomings in the processes by which existing interstate water compacts were negotiated?”

Klein, bringing her perspective from her current work in Florida, said that past compact negotiators “ignored the hard stuff,” and suggested that future negotiations should address those difficult issues while momentum driving the negotiations exists.  Wallace next observed that existing compacts did not “leave enough room” to address future water uses between the parties, such as groundwater use developments and hydrologic interactions.  Robbins concluded by reiterating Wallace’s observations.  He also addressed the fact that existing compacts do not generally include effective dispute resolution mechanisms or grievance processes.

Question 2: “How exactly have these shortcomings in the negotiations been detrimental to the composition and administration of existing compacts?”

Robbins answered first, continuing his line of thought from the last question.  He stated that sovereigns do not want to “give up sovereignty unless they do it intentionally and by their own control.”  With this understanding, Robbins argued that earlier compact negotiations failed to establish dispute resolution mechanisms because these mechanisms intrude on state sovereignty and are outside that state’s decision-making control.  Wallace agreed with Robbins and observed an unwillingness in party states to engage in dispute resolution in the face of ambiguities or unforeseen challenges in the compact’s administration.  Wallace reiterated the difficulties in finding mechanisms to address groundwater use on surface flow.

Klein furthered the conversation on dispute resolution mechanisms by using the Delaware River Basin Compact as an example: the commission implementing that compact has the authority to regulate withdrawal permits, rather than the states.  She then discussed the St. Lawrence-Great Lakes Compact that creates “common minimum standards” and some adjudicatory authority of the commission to address disputes.  Using these more recent compacts, Klein suggested that eastern states that do not have a history of, nor existing, compacts, can look to these unique approaches for problem-solving as they craft new compacts. For example, Klein suggested new compacts could be “tailored” to the “character and flavor and history of the states involved.”  Wallace again reminded the audience that compacts are voluntary concessions of state sovereignty, and those compacting states can engage in that process however best meets their needs.

Question 3: “What is the most important lesson you believe can be gleaned from interstate water compact litigation in the U.S. Supreme Court over the past two decades?”

Wallace joked that “the justices don’t really like to see us.”  He stressed that, because litigation can lead to rigid imposed apportionments, the threat of litigation is an effective tool to “get everyone’s attention” and bring stakeholders to the negotiating table.  Klein emphasized the importance of personalities and personal relationships in compact administration because “compacts are a marriage to death do us part.”  Robbins strongly agreed with Wallace’s previous observation that courts interpret compacts as contracts.  Robbins further argued that such interpretations cannot account for issues of state sovereignty.  Finally, Robbins reminded the audience that there is no “right answer” in interstate water compacts and that compacts are “about making a deal” between sovereigns.

Question 4: “Do you anticipate an increase or decrease in interstate water compact litigation in the future, and which factors do you consider most determinative?”

Wallace expressed optimism that compact administrators are learning to work collaboratively and “keep their options open.”  He referred back to his earlier point, that litigation will likely be a tool to induce negotiations between parties.  Robbins, without making an express prediction, remarked that “serious litigation” on a compact “only happens once; after that, you risk contempt [of court] for not complying” with the imposed judgment.

Question 5: “To what extent, if any, do you anticipate new interstate water compacts will be formed in the future, and which considerations underpin your prognosis?”

Klein addressed this question, discussing in detail her knowledge of current negotiations over the Apalachicola-Chattahoochee-Flint (“ACF”) system among Alabama, Florida, and Georgia.  Klein suggested that these states could “learn from the Western experience” because of the West’s robust history with compact negotiation and litigation.  Klein also suggested that the ACF states have the opportunity to negotiate a compact or equitable apportionment that can “fold in” contemporary concerns, such as the Endangered Species Act and groundwater use, that plague western compacts negotiated before these concerns arose.

Question 6: “How likely is it existing interstate water compacts will be amended or renegotiated in the future?  Which factors do you consider most significant to the initiation and success of such efforts?”

Wallace asserted that renegotiation of existing compacts “just won’t happen.”  Existing compacts, for their shortfalls, are a significant foundation for those resources; any negotiations or amendments would, Wallace posited, “fill in the gaps.”  Robbins then said that, from the perspective of state sovereignty, any renegotiation or significant amendment to existing compacts would require states to “give up something.”  The states would have to change their existing relationships vis-à-vis concessions of state sovereignty.  Robbins also discussed the ability of compact commissions to adopt regulations that govern the administration and implementation of the compacts, and he used the Rio Grande and the Arkansas as two examples of such commission regulations.  He suggested that retaining these existing mechanisms is both more likely and more preferable to complete renegotiation.  Wallace then reiterated the need for compact administrators to build trust and respectful personal relationships amongst themselves.  Robbins concluded the scripted questions with a reminder that, while not preferable, any negotiator must be ready and willing to litigate in the event that negotiations fail.

The floor then opened for audience questions.  One audience member posed a hypothetical question and asked if severe drought, similar to the drought in Australia, would force the renegotiation of the Colorado River Compact.  Robbins assured the audience that the Colorado River Compact addresses shortages, so renegotiation, even in the face of severe drought, would be unnecessary.  Wallace agreed, and further said that such an event would not force compact parties to allocate water differently because all would already be receiving less under the shortage allocations in the compact.

The next question from the audience inquired into the possibility of a compact specifically for the Ogallala Aquifer.  Robbins believed such a compact would be unlikely because of the very different uses of the aquifer by the three overlaying states, and because the Supreme Court decisions on the Republican and Arkansas litigation posited that existing compacts already address groundwater use.  Klein expressed similar skepticism, and described a case between Mississippi and Tennessee regarding different uses and contested ownership of a common aquifer.  Wallace then pointed to the Colorado Supreme Court case of In Re: the Application for Water Rights of Park County Sportsmen’s Ranch as an example of the inclusion of groundwater aquifers in existing compacts and use laws.

Robinson thanked the audience and the panel, and with the conclusion of this panel came the end of the 2016 Symposium.

Aubrey Bertram


“CONFLICTS AND COOPERATION: THE PAST, PRESENT, AND FUTURE OF INTERSTATE WATER COMPACTS”

Denver, Colorado                          April 8, 2016

WAR OVER THE RED RIVER: IMPLICATIONS OF THE TARRANT REGIONAL WATER DIST. V. HERRMANN DECISION

At the University of Denver Water Law Review Annual Symposium, Professor Tom Romero, a faculty member at Sturm College of Law and faculty advisor for the Water Law Review, introduced the sixth panel, which featured two attorneys arguing for each side of the Supreme Court case Tarrant Regional Water Dist. v. Herrmann.

Professor Romero began by outlining the case, which the United States Supreme Court (“Court”) decided in 2013, and how it affected litigation over interstate water compacts.  The water compact at issue, the Red River Compact (“the Compact”), includes Texas, Oklahoma, Louisiana, and Arkansas.  This case originated in the Compact area shared by Texas and Oklahoma.  Before introducing the attorneys, Professor Romero summarized the issues in the case, including the Dormant Commerce Clause and water marketing issues that the Supreme Court had not reviewed in many years.

The first attorney Professor Romero introduced was Kevin L. Patrick, a shareholder at Patrick, Miller and Noto, P.C.  Mr. Patrick was counsel for petitioner Tarrant Regional Water District (“District”) in the case.  The District provides water to north-central Texas.  The second attorney on the panel was Star Waring, a shareholder-partner and member of the Natural Resources and Water Law Practice Group of Dietze and Davis, PC.  Ms. Waring is the Practitioner in Residence for the Natural Resources and Environmental Law program at Sturm College of Law.  Ms. Waring spoke on behalf of Susan M. Ryan of Ryley, Carlock, and Applewhite, who was counsel for two amicus parties for respondents in the case, the Oklahoma Water Resources Board (“OWRB”).

After the introductions, Mr. Patrick and Ms. Waring further developed the history behind the case, the Compact, and the two parties. The panelists then presented in a point-counterpoint style.

Mr. Patrick began first by explaining key historical points that led to this dispute.  The first negotiations surrounding the Red River occurred when the United States signed the Treaty of Amity, Settlement, and Limits Between the United States of America and His Catholic Majesty on behalf of the Republic of Mexico.  Under this treaty, Mexico relinquished access, use, and ownership rights to the Red River.  Mr. Patrick next jumped to 1978, when Arkansas, Louisiana, Oklahoma, and Texas divided the waters of the Red River, creating the Compact. Congress passed the Compact into federal law in 1980.  Mr. Patrick made his first argument in favor of the District by detailing that Southeastern Oklahoma to the north of the Red River receives large amounts of rain annually, while North Texas just to the south of the Red River receives unusually small amounts of rain annually.  Mr. Patrick concluded this point stating that Oklahoma discharges 32.5 to 34 million acre-feet of unused stream water through the Red River annually.

Ms. Waring then presented her first counterpoint and explained that although southeastern Oklahoma is abundant in its annual precipitation, the southwestern portion of Oklahoma is very dry. Ms. Waring argued that area of Oklahoma should be the focal point as it contains the largest metropolitan area in the state, Oklahoma City.

Next, Mr. Patrick and Ms. Waring provided a visual of the Red River Compact, and pointed out sub-basin five as the area of the Compact at issue in this case.  Mr. Patrick and Ms. Waring provided a Compact excerpt, Section 5.05(b)(1).  Section 5.05(b)(1) declares that the signatory states shall have equal rights to the use of runoff originating in sub-basin five and designated water flowing into sub-basin five.  Furthermore, anytime there are 3,000 cubic feet per second flowing at a particular point, each of the four states has a right to take twenty-five percent of the water in the river sub-basin.  For reference, Mr. Patrick mentioned that ninety-six percent of the time, there is a flow of 3,000 cubic feet per second in sub-basin five, so the four states have the right to take twenty-five percent of that flow the majority of the time.  Before moving into the procedural history leading up to the Supreme Court appearance, Ms. Waring posed the major question surrounding this case asking “why did Tarrant try to buy water rights from the state of Oklahoma if in fact it had the right to come and divert that water from the Red River in the first place?”  Both Mr. Patrick and Ms. Waring agreed that because the case was appealed from a summary judgment in the district court, the parties could have developed a better factual record had the dispute made it to trial.

Moving into the procedural history, Mr. Patrick and Ms. Waring explained that the District initially filed the lawsuit in the United States District Court for the Western District of Oklahoma.  The District sought declaratory and injunctive relief against the OWRB’s enforcement of Oklahoma statutes.  Those statutes apply stricter standards to applicants seeking to divert water within Oklahoma’s borders for out-of-state use.  The District sought to enjoin this enforcement on the grounds that the Compact pre-empted the statutes and that the statutes violated the Dormant Commerce Clause by discriminating against interstate commerce.  The District Court denied OWRB’s first motion for summary judgment motion on its claims of Eleventh Amendment Immunity. The court granted OWRB’s second motion for summary judgment seeking to dismiss the District’s Dormant Commerce Clause claim.  After appeals, the United States Court of Appeals for the Tenth Circuit held that the Compact did not entitle a Texas water district to take a share of water from a tributary located in Oklahoma, and affirmed the District Court’s decisions.

Mr. Patrick and Ms. Waring then discussed the District’s first Petition for Certiorari, and Mr. Patrick discussed how the Untied States Solicitor General supported granting Cert and believed that the plain language of the Compact favored the District.  The panelists discussed the fact that the Supreme Court looked to a number of other sections of the Compact, focusing more on states’ rights instead of previous legislative history in regard to the Compact.

Before getting to the Supreme Court decision, Mr. Patrick and Ms. Waring broke down the parties’ arguments.  First, Mr. Patrick listed the main points that the District would have made, including arguments on preemption and the Dormant Commerce Clause.  For pre-emption, the District interpreted the provision regarding sub-basin five as allowing it to divert water from a tributary in Oklahoma.  In other words, the District sought to prove that the plain language of the provision created a sub-basin defined by coordinates, not state boundaries, in which each state could access its equal share of the shared pool water from anywhere in the sub-basin.  For the Dormant Commerce Clause, the District argued that the language of the Oklahoma anti-diversion statute for out-of-state entities was discriminatory.  Additionally, it argued that there should be a rule to look at legislative history instead of the states’ rights.  Next, Ms. Waring went into OWRB’s arguments.  The OWRB’s main argument was that the District did not have the authority to enter into Oklahoma physically to divert water for use in Texas.  Furthermore, the OWRB argued that the twenty-five percent allocation of sub-basin five in the Compact meant twenty-five percent of the water within the state’s own boundaries, not anywhere in the sub-basin.  The OWRB argued that states don’t relinquish sovereignty lightly and that whenever a state allows cross-border rights, they are always expressed with clear language.  Finally, the OWRB argued that the dormant Commerce Clause does not apply to “allocated” water and that if anything, Texas’s past efforts to buy that water cut against the District’s argument that it was entitled to the water.

Next, Mr. Patrick and Ms. Waring dove into the Supreme Court case and Justice Sotomayor’s 2013 decision.  The Court affirmed the Tenth Circuit decision on different grounds.  The key rulings, according to Ms. Waring, were that the Court agreed with the OWRB’s argument that a state retains sovereignty over water resources within its boundaries, that the District’s past conduct in attempting to purchase water from Oklahoma demonstrated no cross-border rights, and therefore the District could divert up to twenty-five percent of water in sub-basin five within Texas, but not from Oklahoma.

In their conclusion, Mr. Patrick and Ms. Waring reiterated that it would have been interesting to see the factual record developed had the case gone to trial.  Additionally, they shortly discussed how the lack of language on state boundaries and border-crossings in the Compact played an important role throughout the case.  Finally, the attorneys closed by outlining the key takeaways from the case and from their discussion before taking questions from the attendees.

Joshua Oden