Spring IssueThe Water Law Review is excited to be publishing the following scholarly articles in Volume 18, Issue 2 this spring.
Fall issueThe Water Law Review is excited to be publishing the following scholarly articles in Volume 18, Issue 1 this fall.
Man v. Mussel, The Gloves Are Coming Off: Supreme Court Equitable Apportionment And The Tri-State Water Wars
Mitchell S. Ashkenaz
For twenty-odd years, Georgia, Alabama, and Florida have been fighting a water war. The so-called “Tri-State Water Wars” involve a dispute between the three states, each claiming a right to the fresh water of the Apalachicola-Chattahoochee-Flint (“ACF”) River Basin.
Up to this point, negotiations, water compacts, and various attempts at litigation have failed to settle the dispute. On October 1, 2013, the State of Florida sought permission from the United States Supreme Court to enjoin Georgia’s upstream, “excessive” consumption of the ACF Basin’s water. Specifically, Florida asks the Court to apply the federal common law doctrine of equitable apportionment to properly allocate the water of the basin. Georgia responded by asking the Court to deny original jurisdiction because Florida was not entitled to any relief.
This Article begins with an in depth review of the history of the Tri-State Water Wars, tracing the issues between the three states from 1925 through the present day. The Article then proceeds to survey the most popular methods of resolving interstate water disputes in American law. Within this survey is an in-depth, historical summary of the Supreme Court equitable apportionment doctrine. Finally, the Article analyzes the likelihood that the Supreme Court will accept original jurisdiction over the dispute, and if so, what the potential outcome of the case may look like and what consequences may result. This extremely topical issue has far reaching implications for Florida, Georgia, Alabama, and the rest of the country as populations increase and fresh water becomes more and more scarce
The Devolution of the No-Injury Standard in Changes of Water Rights
David C. Taussig & Lindsay B. Masters
Colorado courts established the no-injury doctrine and prior appropriation at roughly the same time, and the General Assembly later codified them. The right to change a prior right was viewed as one of the sticks in the bundle of a water right and as an important tool to adapt to the changing needs of water users. The statutes were (and still are) permissive in nature, authorizing changes unless injury is established. If injury is shown, then a court may impose terms and conditions to avoid any injurious effect to vested or conditional water rights.
However, over the past couple decades Colorado’s courts have departed from the application of a fact-based, proof-driven no-injury test as the primary driver in change cases. Instead, courts now apply a two-part test. The Colorado Supreme Court added “quantification of historical consumptive use” as an independent test in 1999. In recent years, the quantification of historical use has risen to supremacy, often relegating the no-injury standard to an afterthought. While courts have been eager to quantify historical consumptive use in change cases (with reason where needed to prevent injury), the emphasis on quantification as the touchstone of change cases is not without consequences and is inconsistent with other important state water policies.
This Article traces the historic origins and application of the no-injury test in case law and statute, examines the newer two-part test outlined in Santa Fe Trail Ranches, reviews recent legislation and statutory changes that signal some legislative pushback against the Santa Fe Trail Ranches test, and analyzes the interaction of the quantification standard with other state water policies. Finally, the Article urges re-adoption of the no-injury standard as the touchstone analysis in water rights change cases.