“CONFLICTS AND COOPERATION: THE PAST, PRESENT, AND FUTURE OF INTERSTATE WATER COMPACTS”
Denver, Colorado April 8, 2016
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.