Interstate Water Treaties, or “Here We Go Again”

Nebraska is invoking a 1923 treaty with Colorado to build a canal and outmaneuver Colorado on the South Platte River. It’s been a while since an interstate water fight made the news, and I can hear water lawyers on all sides organizing papers and smiling at the prospect of a fight. After all, whisky is for drinking but water’s for fighting over.

My first thought when I heard the news was to grin a little, because Colorado has some water policies that make me roll my eyes, especially policies pertaining to the South Platte River. Among other things, the state banned the collection of rainwater runoff by private individuals (no cistern at the end of your downspout) on the grounds that if too many people did it too well, it would affect in-stream flow on the South Platte and violate the river compact. Translated into normal English, if people collected the rainwater, there wouldn’t be enough run-off into the river. The quantity of water would drop below the minimum required by law. That minimum has to go to Nebraska, or else, unless there is a drought or other 100% non-man-made event in progress. Even water lawyers can’t make rain where rain doesn’t want to fall.

An interstate compact is a treaty. It must be ratified by the US Senate, just like any other treaty. Most of the interstate compacts I know of are about water, dividing up the flow of rivers, or discussing quality. The goal of a river compact is to keep, oh, Texas from sending the Guard into NM and doing in a dam, or suing for $$$ in lost income and property if the upstream state dries up the river. The Colorado River (of the West) is probably the most famous of these compacts, and one of the most litigated streams in interstate water law. The Pecos River and Rio Grande are not far behind, then the South Platte, and some rivers in Wyoming. https://ballotpedia.org/Chart_of_interstate_compacts A quick skim of the list shows that most of the compacts involving rivers from west of the 100th Meridian are about in-stream flow, and protecting downstream users from upstream excess usage. Mexico is also a party to some Compacts, notably on the Rio Grande and Colorado.

The first official compacts over in-stream flow date to the 1920s, when irrigation got better and litigation more common. What had been local (except in NM and CO) became a state matter. It’s one thing for Garden City, KS to complain about a lack of water in the Arkansas River. It’s another for Kansas to sue Colorado in federal court. Also, the surge in dam and irrigation-project construction in the 1910s and 1920s led to a surge in lawsuits. Thus the compacts. Some are just quantity, others are quality as well as quantity.

As long as people use water from rivers, or use groundwater that affects rivers, others will watch with beady eyes. “I’d rather be at the head of a ditch with a shovel than at the end of the ditch with a decree.” “Whisky’s for drinking, water’s for fighting over.” “The boy at the spring controls the stream.” [Ein Knabe am Quelle controliert den Fluß.]

It’s been a while since an interstate water compact bobbed up in court. The last time, it was TX and OK vs the US government over control of the banks of the Red River. There’s nothing like the Feds sticking an oar into things to get the states to drop other fights. Now it’s Nebraska making waves, and Colorado backpedaling, at least for the moment.

I encourage you to read the compact for yourself. River compacts are some of the clearest of legal documents, not that it prevents lawyers from muddying the waters. The University of Colorado law school has a water law specialty. Other states have something similar, at least those where “prior appropriation” is the rule for water apportionment.

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