Denver, Colorado                          April 8, 2016


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


Denver, Colorado                          April 8, 2016


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




Denver, Colorado                          April 8, 2016


In this panel, Karen Kwon and James “Jay” Tutchton presented differing sides of ongoing conflicts between the federal law and state water compacts concerning the Endangered Species Act (“ESA”).  Kwon, from the Office of the Colorado Attorney General, works in water compact litigation and negotiations.  She has contributed to two amicus briefs submitted to the Supreme Court of the United States regarding state compact issues.  Tutchton has been a public interest environmental attorney for over twenty years, and he is currently a Senior Staff Attorney with the Defenders of Wildlife.  Federico Cheever, an environmental law professor at the University of Denver Sturm College of Law who has written about the ESA, moderated the panel.

First, Kwon offered her approach to this conflict.  She began with a brief recitation of the implications the ESA has among interstate relations.  For instance, the ESA affects water and wildlife management between states because endangered species recovery in one state can affect water supplies in other areas.  Additionally, the ESA implicates the allocation and use of compact water.  Recovery of underwater species under the ESA often requires reserving a steady water supply for recuperation efforts.


Then, Ms. Kwon focused on the state perspective of this competition and described several values that Coloradans hold.  First, Coloradans value their environment.  Conserving and promoting species promotes that way of life.  Second, that quality of life requires a certain availability in water supply.  Attaining a reliable supply of water helps to preserve species and further Coloradans’ way of life.  Finally, Coloradans seek to maintain their ability to manage the resources within their borders.

Kwon next analyzed the ESA and discussed its advantages and disadvantages.  One of its advantages is that lawyers can use it as a tool to effectuate change.  Through litigation, lawyers can try to modify or stop projects that jeopardize endangered species.  Another point in the law’s favor, the ESA protections have proven successful in preventing extinction.  On the other hand, the ESA’s disadvantages include the fact that very few species have recovered to the point that they can leave the endangered species list.  Also, some view the ESA as a threat instead of a tool because the ESA threatens liability for those who do not adhere to its guidelines.  Finally, the ESA contains no long-term incentives looking to the future.  Instead, it focuses on present happenings and immediate incentives.

Before posing her solution, Kwon presented two examples in Colorado of conflicts between the ESA and compacts: the Delta Smelt in the Bay Delta and the Silvery Minnow in the Rio Grande.  The Delta Smelt conflict could dramatically cut the amount of water flowing to Southern California and directly affect the Colorado River.  The Silvery Minnow conflict involves a dwindling fish population in the Rio Grande River, which divides several states’ waters.

Kwon’s proposed solution to this problem is as follows: fit species conservation within the existing structure of water allocation in and between states.  Through this framework, states can create long-term goals and accomplish them while working within the ESA’s parameters.  Additionally, states may find flexibilities under the ESA to allow compliance with water compacts while recovering species.  Kwon then offered several examples from Colorado that embody this solution.  First, a Colorado policy, the Colorado Parks and Wildlife and the Colorado Water Conservation Board (“CWCB”) work to “keep species common” and to recover and de-list already-endangered species.  To do this, the two entities collaborate with public and private groups to collect, exchange, and analyze data and resources on endangered species.  Overall, they use this data to collaborate and try to intervene before listing species as endangered.

Another example illustrating Kwon’s proposed solution concerns the Upper Colorado Recovery Program.  In this program, several public and private entities collaborate to recover four endangered species of fish in the Upper Colorado River without interfering with water rights or compacts.  The program avoids this interference by implementing flow augmentation, monitoring non-native fish, screening large diversions, and constructing fish ladders to help habitat access.  Through these actions, the program maintains compliance with the ESA while promoting the recovery of several endangered fish.  Kwon also mentioned a third example: a water lease in the 15-Mile Reach in Colorado.  Through this action, the CWCB leases approximately twelve thousand acre-feet to preserve the natural environment flows in that area and maintain the goals of the parties involved, such as water use and development.

Kwon summarized by re-emphasizing that the challenges facing species are growing, such as a lack of both long-term solutions and scientific consensus.  In order to combat these challenges, she stressed that water advocates must collaborate and utilize scientific methods.

Tutchton took the podium next, and he started by explaining that the ESA’s process, like a play, consists of “acts.”  In the first “act,” the ESA prescribes the requirements for listing a species as endangered. Researchers utilize the best available science to determine whether extinction poses a danger to a species or a distinct population segment of vertebrate.  The second “act” includes the consultation process, during which the government re-thinks its activities in light of the listing.  This portion prohibits the federal government from making the species’ situation worse.  Finally, the third “act” prohibits anyone from “taking” the endangered species.  In this context, both killing a member of the species and destroying its habitat constitutes a “taking.”

According to Tutchton, the ESA is a paper tiger.  That is, it looks tough, but lawyers may easily disarm it.  In practice, the ESA only removes or modifies the worst-of-the-worst projects.  In the water world, however, Tutchton concedes that the ESA commonly helps water species gain protection and escape extinction.  He attributes this characteristic to the fact-heavy situations and objective, scientific determination. An apparent advantage for water wildlife is that researchers can collect data to calculate with scientific precision the results of a particular action, and thus protect endangered water species from peril.  For example, Tutchton mentioned one case where the predicted extinction of a three-inch fish overruled the construction of a dam.  In that case, researchers produced enough data to conclude the species would become extinct if developers built the dam and blocked its construction.

Next, Tutchton briefly mentioned that one can comply with both of the laws of the river, and then quickly turned to the success of the ESA.  For instance, while the government has de-listed relatively few species, the ESA’s regulations have seen success in perpetuating the survival of listed species.  Going against those that criticize the ESA for a lack of de-listing, Tutchton admitted the ability of the species to recover depends on the means one wants to use.  Certainly more drastic measures can get faster results, but those drastic measures may venture beyond one’s comfort zone.  In practice, the small measures produce small effects, often resulting in maintenance or slow growth of a species.

Additionally, while Tutchton understands the desire for local control, he argued several counterpoints.  First, all species, as national resources, are of national interest.  All people, no matter where they live, have an equal right to enjoy the nation’s wildlife.  Furthermore, the need to list a species represents a local failure of conservation.  The federal government does not manage wildlife until after listing occurs.  Then, the federal government steps in to intervene for the endangered species.  Finally, Tutchton admitted that handing control back to the state, which often caused the endangered status, disappoints him.

Then, Tutchton touched on the issue of drought.  He declared that Westerners routinely live in a drought.  In fact, he hopes people in Colorado and the West more generally remove the word “drought” from their vocabularies, as these areas normally experience little or no precipitation.  Furthermore, Westerners should consider rain or snow an abnormality, especially in states located in a former dust bowl.  Thus, organizations should expect drought-like weather and act in accordance with the expected conditions.

Finally, Tutchton spoke about the future of the ESA.  First, he pointed out the ESA underrepresents real life.  The ESA currently protects fifteen-hundred species, but scientists speculate that number should be around six or eight thousand.  Next, he mentioned that species originally evolved before humans changed the earth’s landscape.  Wildlife originally developed when rivers regularly flooded and followed their natural course.  Now, humans use rivers for transportation and for development.  Creating and managing the workarounds needed to protect the species will only present more difficulty as human development continues. Tutchton summarized by emphasizing that he favors ESA litigation, as it helps to represent underrepresented points of view in critical ventures.

            Connor Pace



Denver, Colorado                          April 8, 2016


At the University of Denver Water Law Review’s Annual Symposium, Assistant Attorney General and member of the Water Rights Unit of the Navajo Nation Department of Justice (“NNDOJ”), Stanley Pollack, spoke about issues and challenges the Colorado River Compact pose to the Navajo Nation’s water projects.  The mission of NNDOJ’s Water Rights Unit is to protect the water rights of the Navajo Nation.  The NNDOJ, as the Navajo Nation’s representative in state and federal litigation, is currently pursuing five general stream adjudications.

Pollack prefaced his presentation by focusing on various Colorado River issues and how interstate compacts put different restraints on Navajo water development, particularly in the context of drinking water projects.  Pollack emphasized the need to provide drinking water to the Navajo Nation.  Pollack pointed out that thirty to forty percent of the Navajo physically haul their drinking water in barrels.  Pollack illustrated this point with a picture drawn by an elementary school student from Lake Valley, New Mexico.  The picture was one of many drawings elementary school children submitted during the Navajo Gallup Water Supply Project (“Supply Project”) hearings.  The drawings were supposed to depict what water meant to the children and the importance of water.  The drawing Pollack showed was of a pick-up truck with two large barrels with the word “water” written on them in the truck’s bed.  This drawing demonstrated that there were generations of children within the boundaries of the Navajo Nation that do not think drinking water is something that comes out of a faucet, but from a barrel in the back of a truck.

Pollack then asked the audience to imagine themselves as members of the Navajo before the explorative efforts of the Europeans.  He showed aerial maps of what the Navajo Nation used to be in contrast to what it became after European migration and the establishment of the United States.  The Navajo called their homeland Dinétah, and it encompasses the land between the Four Sacred Mountains: Mount Blanca, in Southern Colorado; Mount Taylor, in New Mexico; San Francisco Peak, in Arizona; and Mount Hesperus, in Colorado.  What becomes evident, said Pollack, is that this is high desert country, subject to a dry and arid climate with little development.  He emphasized that the Navajo had been thriving in this area for hundreds of years, until the day when foreign people came along and began drawing boundaries on the land.


The first boundary was the establishment of the Navajo Reservation.  The reservation greatly reduced the land that the Navajo called home.  Next, state boundaries began forming and the Navajo saw the U.S. government parcel up its homeland, subjecting them to boundary lines the Navajo had no say in forming.  Then, in 1922, the Navajo saw the U.S. government divide the Colorado River Basin into an upper and lower basin.  Pollack explained that, once again, the United States subjected the Navajo to boundaries they had no say in forming, but must abide.  Pollack noted that with each boundary line came new political constraints on the Navajo.  The boundaries told the Navajo where they could and could not live and what they could and could not do on the land.  These restrictions imposed limits on what the Navajo could do with their water, and that, Pollack said, is what he wanted to discuss.

Pollack quoted the language of Article VII of the Colorado River Compact: “nothing in this compact shall be construed as affecting the obligation of the United States to the Indian tribes.”  He said that by this language, the rules and boundaries on the map should not apply to the tribes.  However, in reality, this is not the case.  The Navajo finds themselves almost entirely in the Colorado River Basin—upper and lower—and within the three states of Arizona, New Mexico, and Utah.  The geography of the Navajo Nation, Pollack said, makes it difficult to protect the water rights of the Navajo because there are so many entities at play, each with its own rules, regulations, and characteristics.

Pollack then rhetorically asked why, if the language of the compact really meant what it said, is providing water to the Navajo such a problem.  He answered this by saying that, as an attorney for the NNDOJ, he can litigate and litigate, but at the end of the day, only Congress has the power to authorize a water development plan for the tribes.  Therefore, Congress will use that power as it sees fit, and, ultimately, litigation is a “hollow exercise.”  Litigation yields merely paper water rights, and the people Pollack represents cannot drink water from the paper he might obtain in litigation.  Consequently, when the Navajo want to develop their water, they must go to Congress and request the funding necessary for that project.  In doing so, they have to make sure that what they want to do fits within the political systems in place.  Pollack explained that the Colorado River Basin is not just about where the watersheds are on a map or the water within the system, but rather the areas that can receive water because of the Colorado River System.

Pollack next discussed how the upper basin is composed of the parts of the upper-basin-states Lee Ferry serves.  Lee Ferry is the dividing point between the upper and lower basins.  The lower basin is composed of those parts of the states without the drainage of the Colorado River system.  This means any part of a state, whether in the upper or lower basin, is really part of the upper basin if water from the upper basin can serve it.

The only parts of New Mexico considered part of the Colorado River Basin are in the lower basin, Pollack said.  He then displayed a map and pointed out the Navajo Nation, the San Juan River Basin, and the New Mexico Water Rights Settlement.  The centerpiece of the New Mexico settlement, Pollack said, is the Supply Project.  He explained that there are two pipelines coming from the San Juan River that serve communities in the upper basin and lower basin in New Mexico, the Rio Grande area, and Arizona.  Pollack noted that this creates four different communities needing water delivery.  Delivering water from the San Juan River to communities in the upper basin of New Mexico requires little transportation because the communities use water from the upper basin.  Pollack further explained that the geographical location of the upper basin makes sending water to the Rio Grande very simple, but sending water to the lower basin more difficult because the lower basin has the drainage of the Colorado River System.

It is as odd paradox, Pollack continued, that the rules essentially encourage an out-of-basin use of water by sending water to the Rio Grande where there is no return flow to the Colorado River.  While, at the same time, the rules are set up against using water in the lower basin where there is the drainage of the Colorado River System because the waters below Lee Ferry can serve the lower basin.  However, in 2003, Pollack went to the Upper Colorado River Commission and persuaded the body to allow the Supply Project to deliver water from the upper basin to the lower basin, provided that the Supply Project consider the water use as an upper basin use.  What is important about this, Pollack said, is that the states can work together to find solutions to interstate problems even though the laws of the river on their face do not allow for such actions.

Pollack concluded his speech by introducing a pipeline project that he said is still “a pipe dream.”  The project, called the Western Navajo Pipeline, would deliver water to the Western portion of the Navajo Nation.  Pollack explained that the Western portion of the Navajo Nation is an area to which it is particularly difficult to get water because there are no sources of ground or surface water apart from the Colorado River.  This forces most Navajo to haul their water.  Pollack asserted that because it is so hard to get water from the Colorado River in the Grand Canyon, the Navajo should get water from Lake Powell.  Therefore, he proposed to pump water from Lake Powell above the basin, and then pump it down into the Western Navajo area.  Pollack thinks that the precedent set from the New Mexico settlement, as well as the Upper Basin Resolution from 2003, should allow this pipeline pipe dream to become a reality.

Tucker Allen


Denver, Colorado                          April 8, 2016


Ted Kowalski, Chief of the Interstate, Federal & Water Information Section of the Colorado Water Conservation Board, moderated a panel at the University of Denver Water Law Review Annual Symposium featuring three speakers addressing different perspectives from the Lower Basin.

The first speaker was Bill Hasencamp, Manager of Colorado River Resources, Metropolitan Water District of Southern California (“MWD”).  Hasencamp represented the municipal provider perspective on the panel.  MWD covers a one trillion dollar economy, 5,200 square mile service area, and—as one of the largest water providers in the country— approximately nineteen million residents.  Hasencamp explained how the drought in the 1990s forced Southern California to rethink the way it rationed water.  In response to the drought, Southern California devised an integrated resource plan for meeting reliability needs of the region.  The plan focused on agricultural to urban transfers and augmenting the dry year water supply with storage.  According to Hasencamp, the plan was effective, but maintaining the water supply has been a challenge for several reasons.

One challenge has been the geography of the delta between Northern and Southern California.  According to Hasencamp, the state water project receives water from the Sacramento River that comes into the delta from the North.  The pumps for both the state water and central valley project are both in the South.  Therefore, in order for the water to move between Northern and Southern California, it must move through the delta.  Unfortunately, fish swim too close to the pump and, in order to protect them, state and federal environmental regulations have forced Southern California to reduce pumping with increasing frequency.  Hasencamp explained that this year alone, during the worst drought in California’s history, California lost nearly a million acre-feet of water because fish were swimming too close to the intake.  In addition to fisheries, other long-term risks on the delta include seismic concerns with the bay area fault, as well as rising seal levels.  Hasencamp warned that if catastrophe hit, the delta could become an inland sea, and that this might prohibit the pumping of water for years.

Hasencamp then asserted that the focus needs to be on getting the delta functioning again in a way that will protect the environment and meet the water needs of the state.  Hasencamp explained that MWD believes the way to do that is through tunnels under the delta.  With tunnels, if a catastrophe occurred and the delta failed, Southern California would not lose pumping as the state could still receive water from the river upstream.  Tunnels would also ensure that Southern California could obtain water in a way that protects fish from pumps.  The plan is currently up for approval and Hasencamp is hopeful that it will pass.

Another challenge for California has been the apportionment on the Colorado River.  Hasencamp explained that a series of compacts and agreements give each state a certain allocation of the Colorado River.  After fifty years, California saw a dramatic reduction in its apportionments under the Colorado River Compact.  As a result, the state had to develop a plan to limit water intake in order to live within the reduced allocation.  In response, California developed a plan with other states to keep the Colorado River Aqueduct full until the year 2016.  Through the combination of special surplus water and agricultural to urban transfers, the aqueduct would theoretically have stayed full until 2016.  However, Hasencamp described a catch in the plan: Lake Mead had to remain at least two-thirds full.  Unfortunately, as he explained, MWD did not anticipate the worst drought in the history of the Colorado Basin.  As a result, Southern California did not receive the anticipated water from the river and instead had to shift its focus locally toward developing recycling, desalination, groundwater recovery, and conservation plans.  Hasencamp briefly discussed some of these plans including implementing agricultural conservation measures with Imperial Irrigation District (“IID”) to grow the same crops with less water; lining the American and Coachella canals; developing programs to incentivize farmers not to grow crops; entering a water sharing agreement with Nevada; and developing the Lake Mead Storage Program.  Hasencamp explained that even as the drought in California continues, extra water does exist.  Unfortunately, California cannot pump the water so they are still receiving drought allocations.  In conclusion, he suggested that fixing the delta would help to alleviate this tension.

The second speaker was Chuck Cullom, Manager of Colorado River Programs, Central Arizona Project (“CAP”).  He represented an agricultural and urban perspective.  To begin, Cullom gave a brief overview of the Colorado River System describing it as “the engine of the west.”  While not even in the top twenty largest rivers in North America, the Colorado has four times the annual run-off in storage capacity.  CAP delivers water to four million people in Arizona, provides water for cities and irrigation, and has the most diverse customer classes in the Colorado River system, serving eleven tribes, ten irrigation districts, and ten cities.

Like Hasencamp, Cullom emphasized the steady decline in Lake Mead and the implications it had for CAP.  Currently, the Lower Basin runs at a deficit of about 1.2 million acre-feet every year.  In accordance with the compact, MWD and California have invested billions to reduce their water use from 5.1 to 4.4 million acre-feet, and, still, Lake Mead is declining.  The decline undermines the effectiveness of these cooperative agreements.  Cullom explained that from CAP’s perspective, it must bear the burden of this shortage from what, it believes, is a shared obligation.  The Colorado River system is a linked system of seven states in the Lower Basin.  As the reservoir declines, the reductions grow.  When Lake Mead evaporates, apportionments do not factor in that reduction.  But through cooperative agreements, states have been able to define what shortages will look like in the Lower Basin.

During the first anticipated shortage, Cullom clarified that CAP’s underground water storage will diminish and agriculture customers could be cut by more than half.  In light of the persistent long term risk of shortage, CAP has developed several responses.  First, it has invested millions into storing water underground to protect users from shortages.  Second, like MWD and IID partners in California, CAP has begun storing water in Lake Mead to prop the reservoir up in order to avoid immediate shortage issues and reduce the risk of long-term shortage issues.  CAP has reduced annual diversion by between 140,000-180,000 acre-feet.  By the end of this year, CAP will have stored 345,000 acre-feet in Lake Mead.

Cullom concluded by emphasizing that the structural deficit creates a long-term risk to all Lower Basin Colorado River users and undermines the ability to become cooperative and collaborative partners.  CAP is attempting to follow the lead of California in developing proactive steps to reduce its use, but also is looking to collaborate and cooperate with Lower Basin partners to assist and share in those additional reductions.

The final speaker was Kevin Kelly, General Manager of IID.  He represented the irrigation perspective in a district with the largest number of agricultural to urban transfers in the nation.  According to Kelly, because California has been exceeding its 4.4 million acre-foot entitlement to the Colorado River, IID entered into transfer agreements to bring California “back in line.”  As Kelly explained though, “the only dangling question mark is the Salton Sea.”

According to Kelly, Imperial Valley is an economically-challenged community with 450,000 acres in active cultivation.  Because of the vast farmland and economic nature of the community, the recession of the Salton Sea will have devastating impact on the Imperial Valley.  When the Salton Sea issue first arose, the state of California took responsibility for handling it, focusing primarily on restoration.  However, as Kelly explained, California failed to fulfill its responsibility.  In 2014, in order to bring this issue to the forefront, IID filed a petition with its own state water board.  It informed California of its failure to meet the task of tackling the Salton Sea problem and requested the state board resolve the Salton Seat question as a condition of the transfers.

By the year 2047, 74,000 acres of lakebed will lay exposed, and the water elevation will be negative 249,090 feet.  To address the issue, IID suggests filling up the lakebed with habitat and renewable energy projects.  Kelly argued that renewable energy projects would be especially effective because the same exposed lakebed in the Salton Sea happens to correspond with this hemisphere’s largest untapped geothermal resource.  Kelly asserted that this resource could replace the lost generation at the San Onofre nuclear plant.  Yet, unlike the plant, the Salton Sea would have virtually no emissions.

Kelly noted that California has the most aggressive renewable portfolio standard in the nation as well as the most ambitious greenhouse gas reduction bills.  But in the last four years since San Onofre went down, air in California has become markedly more polluted.  According to Kelly, geothermal energy should be an integral part of the solution to filling up the exposed lakebed.  Kelly argued that IID could not enter another quantification settlement agreement when it is struggling to implement the first one.  At the end of his speech, he posed a rhetorical question: When you pit agriculture against all the other uses in California, who decides whose economic project is more important?  Kelly answered: “In a diversified economy in the southwest, agriculture needs to count for something.”

Neillie Fields



Denver, Colorado                          April 8, 2016


The 2016 University of Denver Water Law Review Annual Symposium focused on the topic of Interstate Water Compacts, both past and present.  The first speaker, retired Colorado Supreme Court Justice Gregory Hobbs, spoke on the history and importance of interstate water compacts, both in the United States as a whole and Colorado in particular.

Justice Hobbs began the Symposium by noting how interstate compacts illustrate the delicate mix of federalism that makes the United States unique.  His presentation centered around the story of Delphus Carpenter, a graduate of the Sturm College of Law and the father of the interstate water compacts created in Colorado.  Born in 1877, a year after Colorado became a state, Carpenter grew up in Greeley working the land.  After graduating law school, he became a practitioner in Greeley.  He was a strong believer in the prior appropriation doctrine.  Coloradans at that time, and settlers across the West, believed that they owned the water within their territories, but this view would soon prove incorrect.

Justice Hobbs noted the significance of 1902.,  During this year the Federal Reclamation Act took effect and Kansas sued Colorado over water rights in Kansas v. Colorado.  Moreover, both the Bureau of Reclamation and the Federal Government asserted that planned reclamation project should receive all unappropriated water.  Justice Hobbs explained that the states, including Colorado, were not happy with the situation that was developing in the West, a war of sorts for water rights.  In 1907, the Supreme Court finally issued its decision in Kansas v. Colorado, holding that a fact specific equitable apportionment analysis would control these types of disputes between states over water rights.  Justice Hobbs stated how Colorado “won” the first round of apportionment due to its settled agriculture across the state.

Next, Justice Hobbs discussed how the changing border of the United States in the late nineteenth century affected the development of water rights in the West, particularly in regards to Mexico.  At that time, homesteading was the philosophy of the West, and, when federal law granted a homestead it only included surface water rights.  Justice Hobbs asserted that this foreshadowed the eventual difficulty of adjudicating groundwater rights under interstate compacts.  Justice Hobbs remarked on the prescience of the framers of the Colorado Constitution, who declared that the water belonged to the public and the people.  This idea was part of the homestead philosophy, but had even deeper roots in the traditions of Native Americans who lived in the West long before Europeans had settled there.

Justice Hobbs then turned back to the story of  Carpenter.  He explained that Carpenter entered into this mix of uncertainty after graduating from law school.  Carpenter was a one term state senator.  Nonetheless, after he left office, the whole state of Colorado turned to him on a bipartisan basis to assist them in the growing number of disputes over waters within the state.  In 1908, the Supreme Court declared that the new reservations for Native Americans needed enough reserve water to sustain their populations and such water was not subject to any state doctrines.  Justice Hobbs discussed how it was a rude awakening for the states to learn that they did not own their own water.  Additionally, there was growing concern among the citizens of Colorado over lawsuits from downstream states.  At this time, Carpenter represented the Greeley Water District, and sought one hundred thousand acre-feet of water from the Laramie River—but Wyoming was not inclined to deal.  Justice Hobbs explained how all of these circumstances forced Carpenter to reconsider his belief in the prior appropriation doctrine, and prompted him to begin research on compacts to settle these disputes.

Justice Hobbs described how people in Colorado and the surrounding states were not receptive to the idea of the federal government issuing decrees to resolve these water disputes.  Carpenter and others wanted to rely on state sovereignty to resolve the disputes between the states and make binding contracts.  These negotiations began in 1922 in Washington D.C.  Justice Hobbs described how Carpenter brought detailed maps along with him to show plans to irrigate the entire Eastern Slope.  Carpenter also wanted the states to be able to use the water as they saw fit within their own borders.  By the end of the negotiations, he accomplished his goal of giving state courts the power to work within their own rules through compacts.  Carpenter also set the landscape for how courts adjudicate these water rights today.

Justice Hobbs closed his speech by describing the importance of water storage here in the West, especially as more and more people migrate to urban centers like Denver.  Justice Hobbs noted how Carpenter knew this when he worked as a state senator to establish the correct priority dates for the reservoirs in Colorado.  To illustrate this point, Justice Hobbs displayed various images of reservoirs across Colorado, including Cherry Creek and the Rio Grande Reservoir.  Justice Hobbs asserted that, following the 1922 negotiations, Carpenter laid the foundation from which eight more interstate compacts would arise.  However, Justice Hobbs pointed out that the success of interstate compacts does not ensure a conflict-free future.  Justice Hobbs finished his remarks by saying: “We want it all, and we think we can do it all.  But there is a limited water supply, and we share it.”


Brian Hinkle



Denver, Colorado                          April 8, 2016

Keynote Address


Patricia Mulroy’s keynote address urged future generations of water law attorneys and policymakers to build upon the established partnerships that made the Colorado River Basin community so effective over the past two decades.  Consistent with the theme of the conference, “Conflicts and Cooperation: The Past, Present, and Future of Interstate Water Compacts,” Ms. Mulroy emphasized the importance of cooperation in the face of increased water challenges.  She further stressed the importance of shifting the conversation about water from a discussion about water rights, to one about responsibilities.  Throughout her keynote address, Ms. Mulroy praised the Colorado River Basin participants for their ability to form partnerships and take responsibility for various challenges.

As part of her work as a Senior Fellow at the Brookings Institution and former General Manager of the Southern Nevada Water Authority, Ms. Mulroy discussed opportunities to assess international water disputes and consult with international communities.  With this background in mind, she noted that the Colorado River Basin is not without disputes, but asserted that it is the most respected and functional river community throughout the world.  While the Colorado River Basin is a positive model for other water communities, it still faces a number of obstacles in the future.

Strength in Cooperation and Partnership

In highlighting the Colorado River Basin’s accomplishments, Ms. Mulroy attributed its strength to the partnerships that the Basin has formed.  Specifically, Ms. Mulroy said that the Colorado River Basin community derives its strength from its compact.  When looking at the compact, Ms. Mulroy said she sees a document, which in its most basic form, is a partnership.  The compact emerged when the parties recognized that the pillar of Colorado water law, “first in time is first in right,” cannot work between seven states.  As a result, the Colorado River Basin, as a community, created a compact to forge a path for seven equal partners.  Ms. Mulroy argued that this partnership and the parties’ determination to find a solution to issues gave the compact the strength to succeed.

Moreover, Ms. Mulroy noted that this partnership created a culture of cooperation and partnership that allowed the Colorado water community to flourish where others have failed.   Ms. Mulroy noted however, that this partnership has only emerged in the past few decades.  From the 1950s through the 1980s, the compact was least successful because the parties “jockeyed” to obtain preferrence.  However, events such as the litigation between Arizona and California, reminded all of the parties that litigation does not result in a system of winners and losers—only losers.  This lesson sunk in during the 1990s and into this century.  Since this epiphany, the Colorado River Bain community has journeyed back to achieve the underlying purpose and reasoning that helped form the compact initially—a partnership where all seven members are equal.  Ms. Mulroy said that the seven equal partners find opportunity where others find obstacles.

Impending Strains on Future Water-Related Conversations
In recognizing some of the obstacles facing the local water community, Ms. Mulroy pointed to two issues that have catapulted water to an issue of national importance.  She cited the Flint Michigan water crisis as one triggering event.  She argued that it was not the mistake initially made, but the fact that the water utility did not say anything to the community that will negatively impact Colorado River Basin conversations about water.  This betrayal eroded the inherent trust Americans have with their water providers. This loss of trust will weave itself into urban conversations and may hinder conversations regarding water resource management.

Next, Ms. Mulroy noted that the nation currently faces the immense task of determining how to replace the infrastructure that affects the nation’s ability to conserve, manage, and transport water.  Replacing the infrastructure will invariably become an additional tax burden at a time when the general public is resistant to more taxes.  Ms. Mulroy believes that these two issues, among others, will elevate the subject of water to a larger national dialogue.

Impending Strains on the Interplay between Interstate Compacts and Federal Laws

While the nation’s focus is shifting toward water and water scarcity, Ms. Mulroy noted the interplay between federal law and interstate compacts that could result in a serious strain on the ability to form partnerships.  Specifically, Ms. Mulroy pointed to three laws Congress enacted in the 1970s—the Clean Water Act (“CWA”), Safe Water Drinking Act (“SWDA”), and the Endangered Species Act (“ESA”) (collectively “Acts”)—that have the potential to impact the Colorado River Basin system and efforts to cooperate between the main participants.  While the Acts successfully accomplished Congress’ initial goals, Ms. Mulroy suggested that it is unclear whether the Acts are flexible or adaptable enough to meet the needs of a changing climate.

Ms. Mulroy strongly advocated for change—whether it is in administering the Acts or through substantive changes to the provisions of the Acts.  She urged attendees to evaluate the Acts and ensure that each has the capacity to adapt to changing environmental and political climates.  In emphasizing the importance of flexibility, Ms. Mulroy pointed to the success of the Habitat Conservation Plan in the lower Colorado River Basin and the Species Program in the Upper Colorado River Basin as positive examples.

Ms. Mulroy cited the California Bay Delta as one example where the parties’ apparent inability to cooperate hindered water discussions.  She asserted that this inability to cooperate —something she referred to as the “just say no” syndrome—overlaid with the CWA, SDWA, or ESA, has the potential to create a perfect storm which will result in the Acts completely crumbling.  Ms. Mulroy predicts that an attitude of “just say no” will impact every basin where the parties do not form a partnership.

Looking to the Future

Having provided examples of successful and unsuccessful effective partnerships, Ms. Mulroy quoted California Governor Jerry Brown’s statement that he was going to “get shit done” as the mentality parties must adopt as society enters tough drought cycles.  For the Western water community to continue to be successful, Mulroy emphasized that conversations need to shift from a discussion about water rights, to one about responsibilities.  In the face of a changing environmental and political climate, it will only become more difficult to have rational conversations about tough problems.  The willingness to find solutions, in the face of daunting challenges, must serve to unite the West.  While every community has its own culture, infrastructure, and laws to administer, Ms. Mulroy argued that future generations must cooperate to confront common problems and avoid litigation.

Ms. Mulroy concluded her remarks by stating that her generation is handing down a legacy of partnership to the next generation.  With that legacy comes the responsibility to continue the partnership as we confront the new, more extreme stresses that will strain the compact over the next few decades.  She reminded the next generation of lawyers that the guiding principle, which has permeated conversations about water in the West, is that failure is not an option.  We need to find a way to cooperate to find a solution that works for all interested parties.  She strongly urged the next generation to venture outside its immediate communities and go see what it is like in other areas of the world, to tell a story about our journey back to being full partners, and to start thinking about the laws in their flexible fashion rather than a rigid manner.  Failure is not an option.


Denver, Colorado                 November 16, 2015

As one portion of its two-part workshop, the Colorado Water Congress hosted a series of presentations concerning the unique interaction between the Colorado Rules of Professional Conduct (“Rules”) and situations that often arise in the practice of water law.

Stephen H. Leonhardt, a shareholder at Burns, Figa & Will, gave the first presentation. He used James P. Owen’s book Cowboy Ethics: What Wall Street Can Learn from the Code of the West to guide a water lawyer through various situations that he or she could encounter in practice. Starting with the precept “when you make a promise, keep it,” Leonhardt compared the book’s discussion of ethics with Rule 1.2’s guidance on the attorney-client relationship. He also mentioned that proposed amendments to the Rules address issues surrounding modern technology and social media. In closing, Leonhardt presented the maxim “remember some things aren’t for sale” to stress that expert witnesses should be a tool for the water court, not a weapon for one side to wield.

The second speaker was David S. Lipson, an expert in hydrogeology and a professor at the Colorado School of Mines. Lipson frequently appears as an expert witness before water courts. He outlined some of the reasons why expert witnesses are important in water law, and clarified their ethical role. He introduced the multidisciplinary nature of water issues, noting that they often require many scientific disciplines working together in order to solve large-scale problems. He cited the recent discharge of mining waste into the Animas River as an example of interdisciplinary cooperation. In dealing with such problems, multiple scientific disciplines must collaborate to diagnose the problems’ causes and formulate solutions for cleanup or mitigation. Next, Lipson addressed the ethical guidelines that bind professional expert witnesses: (i) professional engineers’ licensing requirements, and (ii) professional societies’ voluntary codes of ethics. He went on to explain the limitations that professional societies’ codes of professional conduct place on expert witnesses’ obligation to advocate for their clients. Lipson closed by emphasizing that experts should advocate for the data or objective facts above all else, while also keeping the public health in mind.

The third speaker was Cynthia F. Covell, co-founder and shareholder at Alperstein & Covell. Her presentation focused on a frequent conflict of interest that arises in water law: when water law practitioners represent organizations and individuals for long periods of time and across different water districts. Covell emphasized that water law practitioners today need to advocate for conflict resolution that allows clients to maintain their longstanding relationships. Covell stressed that “material” conflicts are often hard to define in such a complex area of practice. She also discussed American Bar Association Opinion 93-337 and the “issue” conflicts that arise in water law when a lawyer advocates on two sides of an unsettled legal question. The opinion cautions concern over the lawyer’s credibility and that water law appeals go directly to the Colorado Supreme Court. Covell concluded her presentation by asking audience members when they think representation of a former client clearly ends for purposes of the Rules. Multiple practitioners responded to her question by warning of broad initial engagement letters sent to clients, and noting that malpractice insurers recommend sending a closure letter to clients when appropriate.

The workshop ended with a set of hypothetical problems presented by Leonhardt and Covell. These problems addressed the evolution of the Rules surrounding issues of modern technology, including rules currently proposed for adoption, as well as the Colorado Bar Association’s Opinion 127: Use of Social Media for Investigative Purposes. The first problem involved a lawyer representing an environmental non-profit organization opposing a real estate developer’s plan to build a resort in a beautiful mountain area. The problem discussed the developer’s Facebook page and to what extent the lawyer could use information the page contained. Per Opinion 127, a lawyer may always view the public portion of a person’s social media page including posts. A lawyer may not request access to a private portion of a social media profile of a person represented by counsel in a matter without first obtaining permission. A lawyer also cannot delegate these tasks to a third party. In communicating through social media, a lawyer must adhere to the same rules that govern traditional communications. Leonhardt and Covell also went through a problem addressing the “issue” conflicts Covell discussed in her earlier presentation. In this problem, a lawyer represents client C in an unsuccessful appeal against K. The lawyer continues to represent C after the appeal. Later, K asks the attorney to represent her in another matter she wishes to bring under the same theories the attorney had raised in the earlier appeal. While there is no clear answer to the dilemma, the discussion brought up issues of professional image and integrity, as well as appearing before the same judges on repeated occasions.

In sum, the presentations all offered valuable insight into the ethical practice of water law in light of new technologies and increasing complexity in the field.