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Law Offices of Ronald W. Rutz
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January 9, 2006: Recent Water Law

Q: You haven't written much about water law recently. What's been happening with the Colorado River disputes?

A: First a little background to put my answer to your question in perspective. The seminal United States Supreme Court case involving western interstate water law is Wyoming vs. Colorado.

The general federal water law rule is based on the American Riparian Doctrine (an over simplification of which is that the use of water is based upon the concepts of sharing, reasonableness, and fairness). But much to Colorado's surprise and chagrin, in the Wyoming case the Supreme Court did not apply the federal rules but instead used elements of the appropriation system (first to use it has superior rights), at least where the states involved had adopted, in whole or in part, the Appropriation Doctrine.

This put Colorado's right to use water from its eight major river systems in a potentially disastrous position, since with minor exceptions, each affected downstream state, especially California, could put forward superior use claims.

From the ashes and ruble of this water law nuclear ground zero rose a group of phoenix-like Colorado water lawyers such as Delph Carpenter and alphabet soup Carlson to lead the way. Colorado's strategy was to enter into interstate compacts (really treaties among states that are then ratified by Congress) with the general tactics of getting the best terms that possibly could be scraped together, thus hopefully with Colorado ending up with more water than could have been expected after the Wyoming case.

It is conventional wisdom to berate the "deals" Colorado negotiated for "our" Colorado water but it is beyond the space of this column to illustrate the extremely weak positions that Colorado brought to the various compact negotiating tables.

The Colorado River Compact has been criticized in many areas, two of which were that it was based upon an over estimation of the average annual amount of water available in the river and that the compact did not provide for shortages of water. Both points are wrong.

I can only speak from Colorado's perspective. It is clear from reading some of the journals, notes, and minutes of meetings, and from conversations I had back in the 1960s with some of the Colorado folks involved, that Colorado knew the amounts of water estimated to be available were unrealistically high but went along with the "official study" in order to secure the highest overall allotment for the Upper Basin States.

Likewise the guaranteed delivery to the Lower Basin States (California, Nevada, and Arizona) of a fixed amount of water during a ten year period was inserted as a bargaining concession to secure the specific allocation amounts of water for the Upper Basin States (Colorado, Wyoming, and Utah). Thus during all of these years following the adoption of the Compact, Colorado's original allocation of water legally still stands and Colorado has never had to dip into its actual water use to fulfill the ten-year Compact commitment. And Colorado's share of water that has gone "unused" is still reserved for Colorado's future needs if the Compact can be held together.

One final piece of information is needed. Two major reservoirs were built on the Colorado River--Lake Powell, which primarily catches and stores run off water which is then released to Lake Mead, which was designed primarily as the diversion source. Upper Basin states want to keep water in Lake Powell as long as possible because the feeling is that whatever is released to Lake Mead in excess of needed diversions will in fact be used outside of compact allotments, especially since California has done exactly that in the past.

Well, I am ready to answer your question. But that must be left for the next column.

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