Some Legal and Machiavellian Principles of Interstate Groundwater Dispute Resolution American Bar Association 34 th Annual Water Law Conference Austin, Texas March 29, 2016 Burke W. Griggs Assistant Attorney General, Kansas Woods Institute for the Environment, Stanford
Summary of Presentation Equitable Allocation before the Groundwater Revolution: some background principles Kansas v. Colorado (1902-1907) Nebraska v. Wyoming (1945) Adaptation of these principles to the Groundwater Revolution (Texas v. New Mexico) (Pecos River, 1974-89) Kansas v. Colorado (Arkansas River, 1984-2009) Kansas v. Nebraska (Republican River, 1998-2002, 2010-2015) Speculation re: Mississippi v. Tennessee
The Arkansas River Basin, 19 th Century
Arkansas River ditches in Colorado (unreadable because impossible)
Kansas v. Colorado (1902-07): The sovereigns legal positions Colorado: Prior Appropriation it s all taken! The Harmon Doctrine it s all ours! Kansas: Common law riparianism it s all ours! (pay no mind to prior appropriation in Western KS) The United States: Morris Bien All unappropriated waters are ours (for Reclamation Projects).
Kansas v. Colorado (1902-07): The states technical positions Colorado: the two rivers theory: First river: a mountain river, from Leadville to Holly (?) Second river: a plains river, from Coolidge, KS to the Gulf of Mexico Plausible up to a point (Pueblo?); convenient too Accords with CO s legal position Kansas: one continuous river Accords with KS legal position of riparianism Ignores irrigation-induced discontinuities in western Kansas (due to the prior appropriation doctrine). USGS had a fairly good understanding of groundwater hydrology in this region around this time.
Kansas v. Colorado, 206 U.S. 46 (1907) The Court has the power to apportion interstate rivers. When the Court equitably apportions such rivers, it will do so according to the benefits the litigant states obtain from the river. The extreme legal and technical positions of the parties (and the USA) are not convincing. The Court will not perform an equitable apportionment at this time. (Kansas has not shown sufficient injury.) Thus guaranteeing more litigation, 1940 s Arkansas River Compact, 1949. Like the Rio Grande Compact, it is comes after over 50 years of interstate conflict.
Equitable Apportionment by Decree: Relatively rare: Laramie (1922), Delaware (1931), North Platte (1945) Gila (AZ v. CA (1963)); Vermejo (NM v. CO (1984)) Because of Court s standards Invasion of rights must be of serious magnitude And must be established by clear and convincing evidence Reclamation s role in interstate relations Upper state reservoirs for lower state deliveries (see also Elephant Butte Reservoir (Rio Grande) and Harlan County Lake (Republican))
Nebraska v. Wyoming, 325 U.S. 589 (1945) Reassertion of the Court s equitable powers Equitable apportionment should generally follow shared state water law doctrines (here, priority, as with WY v. CO) Other factors may affect apportionment: Extent (and value) of established uses Dependence on junior rights Physical and climatic conditions Availability of storage Consumptive uses and return flows; Effects of wasteful uses upstream on downstream areas Damages upstream v. benefits downstream These factors are merely illustrative: Court is not about to limit the scope of its equitable powers.
Interstate Water Relations, 1907-1949 (irresponsibly short version) Kansas v. Colorado (1907): power of the court to apportion according to benefits. Wyoming v. Colorado (1922): Court apportions the Laramie River by applying the doctrine of prior appropriation across state lines; motivates early compacts, esp. Colorado River Compact Reclamation becomes a significant interstate player during the Great Depression; requires Compacts as a condition for federal investment in interstate basins 6 interstate compacts 1939-49: Rio Grande, Republican, Belle Fourche, Upper Colorado, Arkansas, Pecos Nebraska v. Wyoming (1945) sets the rules for noncompacted interstate basins.
Peace in our time?
Technological revolutions render traditional warfighting obsolete. John M. Browning and his Machine Gun, ca. 1910
Western waterfights are no different.
Litigating the Groundwater Revolution Texas v. New Mexico (1974-1989, Pecos River Compact) Kansas v. Colorado (1984-2009*, Arkansas River Compact) Kansas v. Nebraska & Colorado (1998-2003, 2010-2015, Republican River Compact) *this is not a typo.
Polarized Legal Positions, pt. II: Kansas v. Nebraska & Colorado Republican River Compact allocates virgin water supply (VWS) of the basin; it does not explicitly refer to groundwater. Kansas: groundwater pumping in Nebraska has caused an over-appropriation of the VWS. Nebraska: the Compact does not restrict pumping at all, because it does not mention groundwater. Colorado: Compact governs alluvial groundwater, but not Ogallala groundwater. Special Master (and Court): Compact includes the effects of groundwater pumping. (*Note how that finding wisely avoids taxonomy.)
Polarized Technical Positions, pt. II: Groundwater Modeling Texas v. New Mexico (Pecos River litigation) States construct competing models Special Master Meyers threatens his own States then agree to a shared modeling approach Kansas v. Colorado (Arkansas River litigation) States construct competing models (and attack each other s); 200/270 trial days concerned modeling and modeling inputs States eventually agree to a shared modeling approach (the modified H-I Model)
Collaborative/Pre-existing Groundwater Models Kansas v. Nebraska, Republican River litigation States and USGS collaborate in building a MODFLOW model in response to the Special Master s finding that the Compact must account for depletions to VWS caused by pumping. Mississippi v. Tennessee Pre-existing USGS modeling work Used in the service of opposing arguments Stay tuned: will states attack/defend USGS modeling, and if so, how?
Remedies and Damage$ Some Equitable Remedies Injunction: good luck. Will likely be deemed unnecessary in light of other relief. Specific remedies: Hard limits on groundwater pumping (KS v. CO) rejected in KS v. NE. Correct/Rewrite settlement agreements: accepted in KS v. NE Water Master: rare (Pecos, Delaware) Damages and Costs: In water or in money, and can be retrospective. Can include prejudgment interest. Disgorgement of ill-gotten gains, under certain (exceptional?) conditions. Experts: reimbursed at the penurious federal rate.
Costs of Compliance Typically much greater than damage awards. Texas v. New Mexico: Stipulated damages: $14 million Costs of compliance: over $100 million Kansas v. Colorado: Court-awarded damages of $35 million Costlier retirements/reductions in pumping Kansas v. Nebraska & Colorado: 2-year damage award of $5.5 million Costs of compliance: over $200 million (CO and NE) This is rational cost-benefit analysis.
Methods of Compliance Reduce groundwater pumping Effectiveness depends on location: Climatic location: deficit irrigation or not? Hydrological location: degree of connection to river Reduce irrigated acreage State- and locally-financed retirements Federal subsidies (esp. CREP) Augmentation pipelines To meet delivery requirements To balance out allocation limits
The State of Play after the Groundwater Revolution: Compact Cases Groundwater whose pumping affects interstate streamflows is part of the compact water supply. Groundwater can be used as a surrogate for streamflows through augmentation. The engagement of Reclamation and the United States generally is uneven and unpredictable. Texas v. New Mexico: Rio Grande at Elephant Butte Kansas v. Nebraska: Republican River Growing federal interest in groundwater (and groundwater depletion) Federal crop subsidies and CREP subsidies
The State of Play after the Groundwater Revolution: Decree Cases Colorado v. New Mexico, 467 U.S. 310 (1984), updates the 1945 decision in NE v. WY: Doctrine of equitable apportionment applies to future uses. Reasonable and practical conservation measures that make water available can be taken into account for a supplementary allocation. But burden and standard of proof remain intact from earlier cases: complainant must show, by clear and convincing evidence, that benefits outweigh harms. Upstream state has no automatic entitlement to waters originating within its boundaries. Nebraska v. Wyoming: see next slide.
The State of Play after the Groundwater Revolution: Nebraska v. Wyoming: Decree as of 2001 (simplified) Allocation on a priority basis Allocation on a proportionate share basis: Natural Flow: 25% Wyoming, 75% Nebraska Storage: 18% Wyoming, 82% Nebraska Geographical Source Basis Upper stretch of river in Wyoming (to Guernsey Reservoir): Limits on Irrigated Acres and Consumptive Use Automatic water regulation in drought years In stretch below Whalen Dam: Existing Wells: WY must cease pumping or replace depletions if NE irrigation demands require it New Wells: WY must cease pumping or replace all year-round depletions Diversions from tributaries and drains count against WY s 25% share
Mississippi v. Tennessee: a new fight over a precious resource.
MS v. TN: The Legal Positions Mississippi: Trespass by Tennessee into sovereign property Conversion of Mississippi property (groundwater) Violation of Mississippi water law This is NOT an equitable apportionment situation. Damages: $615 million. Plus equitable remedies. Tennessee: This IS an equitable apportionment situation MS entitled to no relief until the Memphis/Sparta Sand Aquifer is equitably allocated. United States: mostly agrees with Tennessee (but not a party to the litigation); opposed MS motion to file
What would Machiavelli Say?
It is better to be feared than loved. Or, the equitable powers of the Court, and their exercise, are formidable and unpredictable. Compact cases: Court will not rewrite them (TX v. NM) But: the Court s interpretive powers are so robust as to be indistinguishable from rewriting. (SM Kayatta, KS v. NE & CO) Divisions on the Court regarding the scope of its equitable powers, e.g., damages and reformation (KS v. NE & CO) Non-compact cases: Reassertion of Court s powers in CO v. NM 2001 Settlement modifying the decree in NE v. WY Platte River agreement to avoid ESA litigation (CO, WY, NE)
When an enemy is seen committing a gross error...there is a trick behind it. Or, the Court is disinclined to endorse extreme positions. Legal positions Technical positions And yet, the Court is hesitant to interfere with state water law and water management. Kansas v. Nebraska & Colorado (2015) Compliance > Hydrological balance? Where does this leave Mississippi? Its legal position resembles Colorado s in 1907 and 1984; and the Harmon Doctrine remains dead. USGS modeling may complicate its technical position
Some Machiavellian Questions. Is it preferable, fearing an assault, to start a war or await its outbreak? These are tough suits. Is it prudent to trust in a negotiated settlement which the Court could revisit and revise? (KS v. NE & CO) Is it wiser in the long run to treat the symptoms of groundwater depletion rather than its causes? (Pecos, Republican) What if the Big Prince (USA) disagrees? Given Mississippi s position, how much will the Court s precedents matter in this case? One thing, however, is certain:
Bob Wills is still the King. --Waylon Jennings