Chapter 3| Chapter 3 |
CHAPTER
4. INTERSTATE WATER ALLOCATION APPROACHES AND METHODS
4.1
Overview - Why Allocation Disputes Arise
In
general, rivers often flow through more than one country or state on their way
to the sea. It is also not
unusual for a river to form the boundary between one country or state and
another. Thus, disputes between countries or states within countries over
rights to the waters of
The
U. S. is, of course, a federal system under which the Constitution specifies
certain powers to
(1)
A private lawsuit between water users in different states.
(2)
An "equitable apportionment" suit between different states,
originating before the Supreme Court, with the states as parties.
(3)
Allocation by act of Congress, usually only of navigable waters, under the
power of the Constitution’s Commerce Clause.
(4)
Allocation through agreement among the involved states resulting in an
interstate compact, ratified by Congress and signed by the President, under
the power of the Constitution’s Compact Clause.
(5)
Allocation through cooperation among the involved states that does not
rise to the level of a compact requiring federal approval.
(6)
State regulation of interstate water export under state law with the
state acting as sovereign or fiduciary over the waters of the state.
A
quick review of the relevant sections of the Constitution is useful as a
prelude to our discussion of interstate allocations.
States are "quasi-sovereign" entities in our federal system.2
The U. S. Constitution, in Article III, § 2, clause 2, grants the Supreme
Court original jurisdiction in "all cases . . . in which a state shall be
a party." Further, in
Article I, § 10, clause 3, the Constitution states that "No State shall,
without the Consent of Congress, enter into any Agreement or Compact with
another state." Not
surprisingly, this is known as the "compact clause."
Article I, § 8, clause 3 grants Congress exclusive power over
interstate commerce.
At
the time the Constitution was adopted, commerce relied almost exclusively on
interstate waters for transportation of goods.
Thus, early in our history the Supreme Court held that "the power
to regulate commerce necessarily includes the power over navigation."
3 More recently, the Court
has emphasized that the power of Congress to regulate water under the commerce
clause extends not just to navigable waters but to any waters that affect
interstate commerce.4 Where
Congress has not acted to regulate commerce, the states may do so provided
that the states’ regulations do not impermissibly burden interstate
commerce. This is referred to as
the "dormant" or "negative" commerce clause.
The Tenth Amendment to the Constitution provides that the powers not
delegated to the federal government are reserved to the States or to the
people. The Eleventh Amendment
prohibits citizens of one state from suing another state in federal court.
Each of these constitutional powers can be brought to bear on a
specific problem of interstate water allocation, although some methods of
resolution are considered preferable over others as discussed below.
4.2
Private Suits Over Water Allocation
Private
suits by parties in one state against parties in another state are an
infrequently used method of resolving interstate water disputes in the modern
era. One of the reasons for this
is that when state agencies administer water rights, the administering state
would be an indispensable party if it has sanctioned the actions being
complained about or criticized by citizens of another state.
As previously noted, the Eleventh Amendment to the Constitution bars
suits against a state by citizens of another state. However, the bar is against suits in federal court
and does not affect the rights of citizens to sue in state court -- either in
the administering state or in the aggrieved citizens' state.5
There may certainly be issues of jurisdiction and state law immunity
present, but there is also precedent for citizens of one state to sue citizens
of another state in the courts of the first state for tortious activity that
occurs in that state.
In
interstate water disputes, harmful actions may be taken in the defendant's
state, but the “tort” or wrongful effect can be said to occur in the
plaintiff's state. The Supreme
Court, in World-Wide Volkswagen, required a nexus with the state where
suit is brought such that the defendant "should reasonably anticipate
being hailed into court there."6 It
might be thought that water withdrawals in one state do not provide this nexus
to a downstream state. However,
in Calder v. Jones, the Court stated that intentional conduct in one
state calculated to cause injury to the plaintiff in another state should
result in the plaintiff reasonably anticipating being hailed into court there.7
Douglas Grant notes, in a discussion of private interstate suits that,
if a downstream user complains to an upstream user in another state about
wrongful interference with water supply and the complaints are ignored,
continued diversion might be considered "intentional" and
"calculated to cause injury."8
If jurisdiction is upheld, any judgement won in the downstream state's
courts would have to be enforced by the upstream state under the full faith
and credit clause of the Constitution.9
4.3
Equitable Apportionment Suits Over Allocation
The
second possible method of resolving interstate water disputes is an equitable
apportionment suit among states with rights to a particular body of water. As previously stated, these lawsuits, by Constitutional
mandate, originate in the Supreme Court.
The Court has noted that:
One cardinal rule, underlying all the relations of the
states to each other, is that of equality of right.
Each state stands on the same level with all the rest.
It can impose its own legislation on no one of the others, and is bound
to yield its own views to none.10
Because
no state can impose its law on another state, The Supreme Court applies
federal common law to make an apportionment.11
The
Court is reluctant to take interstate disputes over water allocation.
One way that the Court avoids such suits is by declaring that the issue
is not yet ripe for resolution: "The
governing rule is that this Court will not exert its extraordinary power to
control the conduct of one State at the suit of another, unless the threatened
invasion of rights is of serious magnitude and established by clear and
convincing evidence."12 This
criterion of “clear and convincing evidence” is broken down into three
requirements: that the invasion of rights must be: (1) threatened; (2) of
serious magnitude; and (3) clearly proved.13
Thus, an upstream diversion that would prevent future uses but not
existing ones, is not ripe for the Court's consideration.
We might note that, in this issue, the Court is acting consistent with
the rule in riparian common law.
The
requirement of clear proof is complicated by the fact that one state has no
statutory right to be informed of another state's actions.
While federal actions may go through a state clearinghouse, there is no
requirement that all state permits be routed to downstream states for comment
before approval. In eastern
states (i.e., east of the Mississippi River) at least, many uses can be
initiated without state approval. While
the bulk of these are small in scale, they may have a cumulative effect that
can be seen in impacts upon a downstream state, even though the actual cause
of the impact may be obscure to the downstream riparians who are injured.
Thus, getting an equitable apportionment case before the Supreme Court
is not easily done. However, most
large-scale water projects on interstate rivers that involve diversions of
water or its retention behind large dams have considerable federal
involvement, either through funding or because of required permits for
environmental protection. The
federal involvement may trigger considerable public involvement, including
coordination with downstream states. It
is usually the case that a loud complaint from a downstream state to a federal
permitting agency about a downstream effect from an action proposed for
permitting will bear results. However,
the federal government is under no obligation to follow the downstream state's
dictates.14
When
the Court does agree to hear an interstate suit over water rights, it always
appoints a Special Master to gather the facts, make findings of law,
and make recommendations to the Court.15
The Court is not required to take the Master's recommendation, however.
In a suit between Colorado and New Mexico over the Vermejo River,
Justice Sandra Day O'Connor wrote: "Though the Master's findings on
issues deserve respect and a tacit presumption of correctness, the ultimate
responsibility for deciding what are correct findings of fact remain with
us."16 One of the
hallmarks of equitable apportionment suits is that their outcome is not easily
predicted.
The
lack of predictability arises from the nature of the federal common law
applied by the Court to decide the allocation.
The use of local law as a basis for allocation is not compelled by the
Constitution.17 "Fair
allocation rather than consistency with locally generated expectations [is]
the touchstone of the principle of equitable apportionment."18 Local
law does have a role as a source of principles to apply, however, especially
when the states party to the dispute apply the same type of law.
Thus, where all states follow riparian law, this principle may have
more weight than in disputes where one state follows prior appropriation law
while another follows riparian principles.
The most complete list of equitable apportionment principles or factors
is found in Nebraska v. Wyoming. 19
Apportionment calls for the exercise of an informed
judgement on a consideration of many factors. . . . [P]hysical and climatic
conditions, the consumptive use of water in the several sections of the river,
the character and rate of return flows, the extent of established uses, the
availability of storage water, the practical effect of wasteful uses on
downstream areas, the damage to upstream areas as compared to the benefits to
downstream areas if a limitation is imposed on the former – these are all
relevant factors. They are merely
an illustrative, not an exhaustive catalogue.
They indicate the nature of the problem of apportionment and the
delicate adjustment of interests which must be made.20
It
should be noted that where the underlying claim in an equitable apportionment
suit is injury to citizens of one state by governmental entities in another,
the eleventh amendment has been held by the Supreme Court not to bar suit in
federal court. In Kansas v.
Colorado, Colorado argued that the states were not real parties in
interest, rather it was the landowners in the two states.
The Court answered that the plaintiff, Kansas was "parens
patriae, trustee, guardian, or representative of all or a considerable
portion of its citizens" and was seeking to protect them from injury to
their property, health and comfort.21
Colorado, according to the Court, was the real defendant because Kansas
was contesting action taken by Colorado through its officials. 22
In
crafting an apportionment, in those cases in which the Court has agreed to sit
in judgment, the general principle about the form of relief is that, when
possible, the Court will avoid appointing a federal water master to administer
a river or otherwise entangling itself in continuing management. 23
While the Court is willing to make adjustments and has agreed to hear
further suits about cases they have already decided - where there are
allegations of a lack of compliance with earlier decrees - its desire to avoid
lengthy entanglements can result in their allocation of a set amount of water
to a state while disregarding the actual flow in the river.
This can mean that existing uses may be impacted in ways that require
the states themselves to decide who among their citizens loses. 24
None
of the equitable apportionment suits heard by the Supreme Court have involved
an interstate groundwater aquifer. However
(and significant for one of the cases discussed in this study - Memphis Sand
Aquifer), it seems clear that the Court would apportion interstate groundwater
if called upon to do so. The
Court's power to decide controversies between states is not limited to the
allocation of interstate rivers. The
Congress might allocate a groundwater aquifer as well, if presented with a
situation that spurred it into action.
4.4
Allocation of Interstate Waters by Act of Congress
The
third way that interstate waters can be apportioned is, perhaps, the most
rare: apportionment by act of
Congress alone, without prior state agreement to a compact.
It seems clear that Congress has the power to do this, at least on
navigable rivers, in furtherance of commerce or where waters are to be
released from storage in federal reservoir projects.
In Arizona v. California, the Court noted, "Where Congress
has so exercised its constitutional power over waters, courts have no power to
substitute their own notions of an 'equitable apportionment' for the
apportionment chosen by Congress.”25
While
Congress has only acted in this manner once or twice,26 in no case
was water apportioned to a state that did not currently have a claim to at
least some of the waters in question. The
subject of these controversies was surface water.
However, Grant notes that, in Sporhase v. Nebraska ex rel
Douglas,27 the Court said in dictum that the commerce
clause empowers Congress to regulate the overdraft of an interstate
groundwater basin. Grant adds
that this power to regulate may include the power to decide how much water
each state can pump.28 It is important to understand that Congress' actions in both
the lower Colorado River controversy and the Lake Tahoe-Truckee-Carson
controversy came only after the involved states were unable to reach any
agreement among themselves.29
4.5
Allocation of Interstate Waters by Interstate Compact
Where
states do reach agreement over interstate water disputes, the result is an
apportionment by interstate compact. This,
the fourth approach in our list of apportionment methods, is by far the most
desirable means to settle interstate disputes.
As Felix Frankfurter famously said, in declaring compacts superior to
litigation, compacts enable "sensible compromise, not following strictly
legal lines [and] better provide for creative continuing administration to
deal with changing conditions."30
Interstate
compacts are provided for in the U. S. Constitution.31
They require, first of all, agreement among the parties.
The agreement must be adopted by the respective state legislatures.
An agreement to form a compact must then be submitted to Congress for
ratification and must be signed by the President.
Interstate compacts are, therefore, both state law and federal law.
A compact is also a contract among the signatory parties.
In ratifying a compact, the Congress can permit the states to agree to
actions that would otherwise be held unconstitutional, as, for example,
violating the commerce clause.
The
first step in developing a compact is usually congressional authorization of
negotiation which may provide for a federal representative to participate.32
Four more steps follow, in most cases.
The second step is often the passage of enabling legislation by the
respective state legislatures designating negotiators and authorizing them to
act on behalf of the states in the matter.
The third step is the negotiation.
Often a federal representative observes or directly participates in the
negotiations. A number of
interstate compacts have federal signatories.33
The fourth step is ratification by the legislature and governor of each
state. The fifth step is the
consent of Congress to the compact achieved by the passage of legislation.
The
first step is not mandatory; however, the fifth step is required by the
compact clause of the Constitution. That
clause speaks only of the need for consent by Congress.
However, the accepted understanding is that the President can veto
congressional action giving consent.34 President Franklin Roosevelt did so in 1942 when Congress
consented to a compact concerning the Republican River.
Roosevelt objected to provisions of the compact that withdrew the
jurisdiction of the United States over the river system and restricted federal
authority to construct irrigation works.
A revised compact was negotiated that removed the objectionable
provisions.35
Once
a compact has been negotiated and ratified, it is binding on the signatories. There are currently 23 water apportionment compacts in force,
including the recently enacted Apalachicola-Chattahoochee-Flint and Alabama-Coosa-Tallapoosa
compacts, whose apportionment provisions are still being negotiated.
Four of the 23 include the federal government as a signatory.36
Compacts
have several possible features that make them attractive beyond their
flexibility and more complete consideration of all water uses.
Under a compact, states may allocate unused water based on the future
needs of the states.37 The
Supreme Court has never apportioned unused water.38 At least one legal scholar doubts that Congress would be
eager to allocate unused water in the future despite its having done so for
the lower Colorado.39 Compacts
can deal with water issues besides allocation including flood control, project
development, environmental protection and basin planning.
Both the ACT and the ACF include consideration of pollution concerns.
The consensual nature of compacts is an important strength that
equitable apportionment litigation lacks.
However, the requirement of consent is also a major problem if states
cannot agree. In addition,
because Congress must also consent, there may be federal considerations that
conflict with state desires. Congress
often has reserved the right to "alter, amend, or repeal" its
consent. While there is some
question whether the compact clause gives this power, Congress can always pass
legislation superseding compact provisions.40
The
existing interstate compacts focus on surface waters with only passing
reference to groundwater. Of the
four federal-interstate compacts, all mention groundwater but only the
Delaware River Basin and Susquehanna River Basin Compacts treat groundwater on
a par with surface water in terms of planning, allocation, and regulation of
water use.41 This does
not mean that a compact allocating the waters of an interstate aquifer would
not be possible. There would
probably be greater difficulty in negotiating allocation formulae for a
groundwater body for the reason that the amount of water to be apportioned is
more difficult to ascertain than it would be for a river course, which can be
measured at gauging-stations at different seasons of the year.
"To apportion water between the states, a compact must either (1)
limit how much water the upper state can use or (2) guarantee the lower state
a certain amount of water."42
With groundwater, although apportionment would take the same general
form, there is no ‘upper’ and ‘lower’ state in the same sense as with
an interstate river. The
technical difficulties of determining how total volume and rate of flow are
measured over time could be worked out for groundwater, as they are for
surface water, but a greater amount of flexibility would have to be built into
the compact. It should be noted
that another way that compacts are superior to equitable apportionment suits
is the fact that compacts usually protect existing water uses or rights.43
This might also be harder for a groundwater aquifer if the aquifer is
currently being overdrawn or "mined" (see, for example, Chapter 5)
4.5.1
Compact Enforcement - Structures and Functions
Compacts
vary widely in the manner in which they are enforced.
Nearly two-thirds of the existing compacts create a compact commission.44
Most of these commissions, however, have little enforcement authority.
Usually, if signatory states feel that the terms of a compact are being
violated, the states will bring suit to enforce the compact.
These suits usually lie within the original jurisdiction of the Supreme
Court. The Court has laid down
five principles about its role in enforcing compacts. First, if the compact provides that a commission is the
exclusive forum for disputes, the Court will honor that provision, second, if
there is a commission and it has an agreement on how to administer the
compact, the Court will only review the agreement in "extraordinary
cause." Third, if a
commission is deadlocked, unless the compact expressly allows the Court to
step in to break the impasse, the Court will decline to intervene.
Fourth if actions by the commission are clearly inequitable because of
a party exercising veto power, the Court will intervene. And, finally, the Court has stated, if disputes are amenable
to judicial resolution, the Court will work to resolve them, if they are not
so amenable, the parties should undertake further negotiations among
themselves.45
The
language of Interstate compacts often states that they should not be construed
to impair the right of a signatory state to regulate water use within its
borders so long as the state's actions are consistent with its obligations
under the compact. This
essentially means that inconsistent state laws must give way to compact
provisions. The result is the same where a compact is silent on the
intended effect on state law. A
water compact is probably federal law for purposes of the supremacy clause of
the Constitution.46
4.6
State Regulation of Water Export
The
fifth means by which interstate waters can be allocated is through state
regulation of water export. It
was long thought that a state, acting as sovereign to protect the health and
welfare of its citizens, could restrict water exports and that its actions
would be immune from commerce clause scrutiny.
However, in 1982, the U.S. Supreme Court held that state restrictions
on interstate water export are subject to scrutiny under the dormant
commerce clause.47 The
Court found that water is an article of commerce, reversing earlier decisions.
The Court then applied the balancing test it had previously
articulated:
Where the statute regulates evenhandedly to effectuate
a legitimate local public interest, and its effects on interstate commerce are
only incidental, it will be upheld unless the burden imposed on such commerce
is clearly excessive in relation to the putative local benefits.
If a legitimate local purpose is found, then the question becomes one
of degree. And the extent of the burden that will be tolerated will of
course depend on the nature of the local interest involved, and on whether it
could be promoted as well with a lesser impact on interstate activities.48
Any
provisions restricting water export must be "narrowly tailored to a
legitimate purpose." No
water export provisions have yet met this test but there is some hope that
water allocation procedures that place some barriers on the export of water
will be upheld.49 A
state may prefer in-state to out-of-state residents when it enters the market
directly.50 It is not
yet clear whether this principle can be applied to water.51
Of course, Congress may expressly consent to state legislation that
would otherwise be unconstitutional. This
is generally done through congressional ratification of an interstate compact.52
4.7
Cooperation in Lieu of Formal Compact
The
final means of allocating interstate waters is through cooperation among
states that does not involve the negotiation of an interstate compact.
There is debate in legal circles about whether states can bind
themselves without congressional consent.
In fact, not every arrangement between states that is a “compact”
in the constitutional sense requires congressional consent: "The Supreme
Court has construed the compact clause to require consent only if an agreement
tends 'to the increase of the political power in the States, which may
encroach upon or interfere with the just supremacy of the United States."53
Whether
states with considerable federal involvement in the interstate watercourses
which flow through them could act to apportion the water in those course
without federal assent is doubtful. However,
such an approach to the regulation of use of an interstate aquifer might work
and might, where agreement can be reached, be preferable to the greater
difficulties inherent in an interstate compact requiring both congressional
and presidential ratification.
4.8
Summary and
Relevance to Tennessee
Allocation
through interstate compact is the preferred method of dividing interstate
waters. This is because, unlike
other methods, it permits certainty, is durable, provides greater state
discretion in allocating water, and is
the least contentious in the long run. Finally,
Tennessee has no statutory rights to be informed of other states’ activities
regarding proposals to allocate interstate waters.
However, as a downstream riparian, if an upstream state proposes to
divert a surface stream, and that action damages downstream riparians in
Tennessee (or the waters of the state) Tennessee can go to federal court to
prevent the action. Because the
interstate waters that flow through Tennessee are all harnessed for flood
control, power and/or navigation by either the Army Corps of Engineers or
Tennessee Valley Authority, it is unlikely that a project in an upstream state
could be undertaken without the cooperation and/or knowledge of these agencies. These agencies, moreover, would surely involve downstream
states in planning.
Endnotes to Chapter 4
(1)
Grant, Douglas L., Introduction to Interstate Allocation Problems, in
Beck, Robert E., Editor-in –Chief, Waters and Water Rights, Michie,
Charlottesville, Va. 1998 Replacement volumes and Supplemental Pocket Parts,
p.527.
(2) Tarlock, A. Dan, Law of Water Rights and Resources, Clark, Boardman
and Callaghan, Deerfield, Illinois,
1997 and 1998 update. § 10.01.
(3) Kaiser Aetna v. United States, 444 U.S. 164, 173-74 (1979).
(4) Id.
(5)
Grant, Private
Interstate Suits in Beck, §44.01.
(6)
444 U.S. 286, 297 (1980).
(7) 465 U.S. 783, 791 (1984).
(8) Grant, Private Interstate Suits in Beck, §44.04.
(9) U.S. Constitution, Article IV, Section 1.
(10) Kansas v. Colorado, 206 U.S. 46, 97 (1907), quoted in Grant, Private
Interstate Suits §45.01.
(11) Grant, id.
(12) Connecticut v. Massachusetts, 282 U.S.
660, 669 (1931).
(13) Grant, Equitable Apportionment Suits Between States, in Beck §
45.04(a).
(14) Cf. State v. Champion Int'l Corp., 709 S.W.2d 569 (Tenn. 1986).
(15) See New Jersey v. New York, 280 U.S. 533 (1930); Connecticut v.
Massachusetts, 280 U.S. 523
(1929).
(16) Colorado v. New Mexico, 467 U.S. 310,317 (1984).).
(17) Colorado v. New Mexico, 459 U.S. 176 (1982).
(18) Tarlock, A. Dan, Law of Water Rights and Resources, Interstate
Allocation § 10.04.
(19) 325 U.S. 589 (1945).
(20) Id at 618.
(21) Kansas v. Colorado, 185 U.S. at 142.
(22) Grant, Equitable Apportionment Suits in Beck § 45.03(a).
(23) Id. at 45.07(a).
(24) Id.
(25) Arizona v. California, 373 U.S. 546, 565
(1963)
(26) See Arizona v. California, 373 U.S. 546 (1963); Colorado River Basin
Project Act, 43 U.S.C. §1521(b);
Truckee-Carson-Pyramid Lake Water Rights Settlement Act of 1990, 104 Stat. 3289
(1990).
(27) 458 U.S. 941, 953-54 (1982).
(28) Douglas L. Grant, Apportionment by Congress, in Beck § 47.01(b).
(29) Id.
(30) Frankfurter & Landis, The Compact Clause
of the Constitution – A Study in Interstate Adjustments, 34 Yale L.J. 685
(1925).
(31) U.S. Const. art I, § 10, cl. 3.
(32) Tarlock, Law of Water Rights and Resources, § 10.05.
(33) Cf. The Delaware River Basin Compact; the Apalachicola-Chattahoochee-Flint
River Basin Compact; the
Alabama-Coosa-Tallapoosa River Basin Compact.
(34) Zimmermann, F. & M. Wendell, The Interstate Compact Since 1925,
at 93 (1951), quoted in Grant,
Water Apportionment Compacts, in Beck §46.02.
(35)
Grant, Water Apportionment Compacts, in Beck §46.02.
(36)
The Delaware River Basin Compact; the Susquehanna River Basin Compact, the
Apalachicola-Chattahoochee-Flint River Basin Compact; the Alabama-Coosa-Tallapoosa
River Basin Compact.
(37) Tarlock, A. Dan, Law of Water Rights and Resources, Interstate
Allocation § 10.05[1].
(38) Grant, Water Apportionment Compacts, in Beck §46.01.
(39) See Arizona v. California, 373 U.S. 546, 565 (1963).
(40) Grant, Water Apportionment Compacts, in Beck §46.03.
(41) Id.
(42) Id.
(43) Id.
(44) Id.
(45) Texas v. New Mexico, 462 U.S. 540 (1980),
quoted in Grant, Water Apportionment Compacts, in Beck §46.03.
(46) Grant, Water Apportionment Compacts, in Beck §46.04.
(47) Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941.
(48) Pike v. Bruce Church, 397 U.S. 137 (1970).
(49) Tarlock, A. Dan, Law of Water Rights and Resources, Interstate
Allocation § 10.07[3].
(50) White v. Massachusetts Council of Constr. Employees, Inc., 460 U.S.
204 (1983).
(51) Tarlock, A. Dan, Law of Water Rights and Resources, Interstate
Allocation § 10.07[3].
(52) Id.
(53)
Grant, Introduction to Interstate Water Allocation Problems, in Beck. §
43.02. quoting New Hampshire
v. Maine, 426 U.S.
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