Monthly Archives: March 2015

I was quoted this week in a Washington Post GovBeat blog story about a bill in the Colorado legislature that would legalize, on a limited basis, homeowners using rain barrels to catch the water that runs off their roofs. (See below for directions on finding the story online.) What made this little issue worthy of a national news outlet like the Post? What intrigued reporter Jeff Guo was not so much that Colorado was considering a change in law, but what the ongoing ban on residential rain barrels said about how the West manages water. His story, and my quotes, focus largely on the fundamentals and the flaws of water law in the western states. And Colorado, like a few other states, has language in its Constitution that specifies a particular system of water law: prior appropriation.

The best-known feature of prior appropriation is “first in time, first in right”–the principle that gives priority to water rights based on how early they were established. This first-come, first-served principle is not only used to allocate water among would-be users, but also to regulate water use in times of shortage; thus, under what Guo called “the dibsies approach to water management,” junior users may get no water at all in times of drought, while senior users get every drop their rights allow. And because most of the big water users in the early West were farmers irrigating their crops, most of the top-priority rights in the West are agricultural–one reason why roughly 80 percent of the region’s water use is for farm and ranch irrigation. In some states, including Colorado, the percentage is even higher.

Prior appropriation is famous for favoring the oldest water uses, but there are other ways in which it tends to lock in the status quo. First, water rights are quantified based on how much is “beneficially used” for the purpose of the right, which has always encouraged users to take and apply as much water as possible; using less could diminish the quantity and value of the water right. Second, these rights are a species of property, and so long as the water remains actively in use, they last forever. Thus, prior appropriation is a system whereby the western states have allocated water to private users, under a system that recognizes perpetual rights, and affirmatively discourages conservation. And because water rights are ordinarily restricted to the particular places and uses for which they were established, any changes require state approval–a process that can be controversial, expensive, and uncertain. This backward-looking approach to water management poses serious problems in a region that is changing fast, and in many ways.

What does this have to do with rain barrels? Colorado, which has long been influential in western water law, practices a uniquely pure form of prior appropriation that scrupulously protects senior water rights. And senior water users understandably are concerned about any change in the law that might lead to a reduction in their water supplies. Enough homeowners collecting rainwater in barrels, and using it to water their gardens, could lead to less water getting to streams and aquifers that supply water to these users. Under this view, home rain barrels are basically petty theft of water that belongs to someone else–which explains why irrigators might not like them, and legislators might hesitate to legalize them. (Some might suggest that water users should be more concerned about the impacts of climate change on their future water supplies, but that is another story.)

Guo also quoted Arizona’s Robert Glennon–who is famous for a law professor, having once appeared on The Daily Show–as saying that prior appropriation is “deeply embedded in Western water law. We academics criticize it, but it’s not going anywhere.” That is certainly true, and I observed in the story that the fact that home rain barrels remain controversial in the 21st century shows “how well-entrenched that old tenacious legal system is.” The good news is that states have shown that they are sometimes willing to adjust prior appropriation to serve important policy goals; one example is that most states passed laws allowing for “instream flow” water rights that were not recognized by old-school prior appropriation. A key question is whether states will further revise their laws to improve flexibility, promote conservation, and provide for important environmental and recreational water needs. The Colorado legislation is worth watching, mostly because its fate will say something about whether states are willing to change their laws to tackle the West’s major water problems … which are far bigger than any rain barrel.

(To find the story, search “govbeat guo march 24” — the headline is “It is actually illegal in Colorado to collect the rain that falls on your home.” Sorry I was unable to provide a working link to it here!)

Last week, the U.S. Supreme Court issued its decision in Kansas v. Nebraska, a dispute over the waters of the Republican River. The Republican flows from Nebraska into Kansas, and for most of the last 17 years the two states have been fighting over whether Nebraska is taking more than its legal share of the water. (Kind of fitting, I think, that these two red states are squabbling over whether they are getting enough of the Republican.) By the time this case reached the Supreme Court, the parties had accepted that Nebraska took too much water in 2005-06; the key issues were about remedies for Nebraska’s excessive use, and what the Court said on those issues is potentially important for future interstate water cases.

First, a bit of context. This case dealt with the Republican River Compact, an interstate agreement involving Kansas, Nebraska, and Colorado (where the river originates). Interstate compacts are negotiated deals by which two or more states agree on the allocation or management of a water body that they share. There are more than two dozen such compacts, mostly in the West, and each one is unique. Under the U.S. Constitution, however, no compact can take effect until Congress has ratified it, making it the law of the land. Thus, every compact is both a contract and a federal law; in the new Supreme Court decision, Justice Kagan’s majority opinion tends to emphasize the “federal law” aspect of the compact, while Justice Thomas’ dissent stresses the “contract” aspect. Compacts are typically enforced in cases before the Supreme Court, and often there are intense legal and technical disputes over whether a compact has been violated. The new opinion does not address such “liability” questions–but its reference to the Court’s “capacity to prevent one state from taking advantage of another” might suggest that where a compact is unclear, the Court will interpret it based partly on the Court’s sense of what is fair to all the affected states.

Nebraska and Kansas had settled an earlier lawsuit over the compact in 2002, agreeing on a complex technical methodology for quantifying Nebraska’s obligations to Kansas and determining whether they were being met. The day of reckoning for the upstream state arrived in 2005-06, which was a drought period in that area. Nebraska delivered about 70,000 acre-feet less than it should have, and when the case reached the Supreme Court the parties had accepted that number, and also Kansas’ resulting losses of $3.7 million. Nebraska agreed to pay that amount, but Kansas asked for further relief in the form of additional payments and an injunction that would impose future obligations on Nebraska. The Supreme Court held that further relief was appropriate, largely because Nebraska–which has always been very reluctant to regulate pumping–had to know that its efforts to reduce water use were too little and too late to achieve compliance by 2005-06. The Court concluded that “Nebraska recklessly gambled with Kansas’s rights, consciously disregarding a substantial probability that its action would deprive Kansas of the water to which it was entitled.”

The Court agreed that Nebraska should have to pay more than Kansas’ losses of $3.7 million, in part because Nebraska had made far more money than that by keeping the extra water for itself. The Court noted that “the higher value of water on Nebraska’s farmland than on Kansas’s means that Nebraska can take water that under the Compact should go to Kansas, pay Kansas actual damages, and still come out ahead.” Unwilling to leave those incentives in place, the Court ordered Nebraska to pay an additional $1.8 million, despite a conclusion that Nebraska’s benefit was probably far greater than that. Three justices dissented on that remedy, arguing that the Court should not have ordered the extra payment at all. But all nine justices rejected the other relief that Kansas requested: an injunction governing Nebraska’s future conduct. On this point the Court said little, but it concluded that there was adequate assurance of Nebraska complying in the future, now that the state had imposed stronger legal controls on pumping.

What does this case (which involved additional issues that I haven’t addressed here) mean for other ongoing or potential disputes over compliance with an interstate water compact? I see three key lessons. First, the Court expects states to “take the medicine” by restricting or reducing their water uses as needed to meet their compact obligations, even when the medicine tastes bad to the states and their water users (and even in times of drought). Second, the Court will use its broad and flexible remedial powers to discourage states from taking the easy way out of these disputes, i.e., allowing ongoing overuse of water and simply paying compensation. Third, injunctive relief will be hard to get even when a state has knowingly violated a compact, as the Court is far more comfortable ordering payments to address violations. And because the Court ordered Nebraska to pay only part of the money it made from using too much, the new decision may not be enough to convince other states that they should take expensive, unpopular steps to reach compliance.