Water in the Courtroom! Bringing “Order” to US Domestic Water Conflicts

WATER

Water in the Courtroom! Bringing “Order” to US Domestic Water Conflicts

By Jennifer Chau, Staff Contributor

Throughout history, wars have been fought over precious, limited resources including oil, land, and water.  Although water covers 70% of the earth’s surface, it remains a contentious commodity.  While human survival depends on freshwater, the oceans make up about 96.5% of Earth’s water.  Only about 2.5% of all the earth’s water is freshwater, and less than 1% of that amount can be used in a renewable way.  Low water supply coupled with high demand have fueled conflicts in regions where water is scarce, such as the Middle East, with disagreements over rights and use of the Jordan River, the Tigris and Euphrates Rivers, and the Nile River.

Water conflicts are not limited to the international realm – U.S. domestic law and politics are no stranger to them.  Currently, while those of us in Washington, DC are experiencing snow and moisture, California is suffering from an historic drought; it rained less last year than it had any year since the state’s founding in 1850.  California’s drought has stirred up a storm of political issues, including threats to California’s environmental laws.  Environmentalists are being attacked by Republican lawmakers for preserving water for a largely unknown  endangered fish called the delta smelt, instead of allowing the water to be used to irrigate fields in the agricultural-rich state.  Republican lawmakers are being criticized for proposing to limit several important environmental regulations and attempting to undo the results of years of negotiation over water issues.

” … the results of last year’s drought in the U.S. southwest can be felt today – all the way to the Supreme Court.”

This is not the first time a drought has stirred up a political storm.  In fact, the results of last year’s drought in the U.S. southwest can be felt today – all the way to the Supreme Court.  The water shortages caused much damage among the farmers and ranchers of the Great Plains and gave rise to Texas’s lawsuit against New Mexico and Colorado, its northern, up-river neighbors.  Texas’s petition is currently pending approval by the Supreme Court.  Although a named party, Colorado asserts that it was named only because it is a signatory to the Rio Grande Compact; indeed, Texas has not otherwise made substantive claims against Colorado for violation of the Compact.  The key players in the suit will likely remain Texas and New Mexico, with the issue presented to the Court whether New Mexico is fulfilling its obligations under the Rio Grande Compact and the Rio Grande Project Act to deliver enough water from the Rio Grande to its southern neighbor Texas.

rio-grande-watershed

The Rio Grande Project is an expansive series of dams, canals, laterals, drains, and a hydroelectric power plant along the Rio Grande River that delivers a full irrigation water supply for about 178,000 acres of land and electric power for communities and industries in the area.  About 60% of the Project’s lands receiving water are in New Mexico, with the remainder in Texas.  Further downstream, Mexico also has claim to a portion of the Rio Grande’s water, further complicating the issue.  Due to the increased water development in Colorado and New Mexico, the Rio Grande Compact was negotiated and approved in 1938 to protect the Rio Grande Project, its operations, and the allocation of water to the Project’s beneficiaries.

Texas argues that in violation of the Compact, New Mexico has authorized Rio Grande Project water intended for use in Texas to be intercepted and used in New Mexico.  New Mexico contends that Texas’s claims are not appropriate for the exercise of original jurisdiction because they are not based on the express terms of the Compact.  Specifically, the Compact does not require New Mexico to deliver water to the New Mexico-Texas state line, rather the delivery point is Elephant Butte Reservoir – approximately 105 miles north of the state line.  Furthermore, New Mexico argues that the states agreed in the Compact that the only valid causes of action to be brought to the Supreme Court would be claims that the character or quality of the water at the point of delivery were altered by one state to the injury of another, and Texas has not pleaded this issue.

Numerous amici curiae briefs have been filed, but Texas’s petition is still pending.  On January 27, 2014, the Supreme Court granted Texas’s motions for leave to file a bill of complaint and to file a supplemental brief, allowing Texas to proceed with its lawsuit.  New Mexico is allowed 60 days to file a motion to dismiss.  The results remain to be seen.

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