Interstate Water Litigation – the Good, the Bad, and the…Helpful?
Nobody in the water business really wants to become embroiled in an interstate water lawsuit. These types of suits tend to be very costly, create acrimony among the parties that can take years to heal and place ultimate decisions in the hands of a court that, while well-meaning and schooled in the law, can be unpredictable, confusing and ultimately take control out of the hands of the states – where it belongs.
But, where regional water conflicts gain momentum or where drought is so severe that even going to court looks like the lesser evil, they happen. Wyoming, in fact, started the ball rolling by filing one of the first interstate suits in the western water business – against Colorado in the early 1900s. We complained that our neighbors to the south were using water without consideration for senior rights in Wyoming. We won. The ruling essentially said that priority of right applies across state lines when both states involved follow the prior appropriation system.
Be careful what you ask for because next time Wyoming will likely be the upstream state.
I wrote a guest piece for the Wyoming Livestock Roundup back in 2005 entitled, “When Wyoming’s Water Really Isn’t,” that, were it reprinted here, would be a good introduction to this article. In essence, it reminds us that many states grew up along our western rivers, and all had some water uses that grew up with them – uses that became subject to interstate compacts and court decrees. So, yes, because of those old “pre-compact” type rights and uses in downstream states, not all water flowing in Wyoming’s interstate rivers is ours alone. That’s true, even though our constitution says every drop within our borders is owned by Wyoming.
While many interstate litigation contests are instructive, the two most recent for purposes of this piece are the Nebraska v. Wyoming litigation on the North Platte River, settled in 2001, and the Montana v. Wyoming lawsuit filed in 2007, in which we are currently involved on the Tongue River.
Let’s look at these contests from about 30,000 feet. In the 30 years since Nebraska v. Wyoming was filed and the nine years Montana v. Wyoming has been around, the big picture is clearer than when we’re in the heat of battle.
Nebraska sued Wyoming for any number of reasons – nonregulation of tributaries, use of connected groundwater in the Torrington area and the proposed Deer Creek Dam near Glenrock come to mind. This river basin had already been under a decree since 1945, and Wyoming already had an irrigated acreage cap and access to only 25 percent of the natural flow in the Torrington area. After 1945, the river was viewed as fully appropriated. In hindsight, were we simply using the river to what we believed to be the fullest legal extent, or were we guilty of overuse? I’m not sure it matters.
Looking back over the 15 years since settlement in 2001, under an additional consumptive use cap, a replacement water obligation for groundwater use in the Torrington area and the prospect of a February-to-April call to fill federal reservoirs in “allocation” years, how have we fared? Not bad, given what we’ve seen the following:
There have been six allocation years in the last 15. Under allocation year administration, agricultural operations have been essentially unaffected because they typically aren’t actively diverting during the call, and municipal and industrial users have devised alternate water supplies to avert curtailment;
The state has found replacement water for groundwater use in the Torrington area every year;
We have never violated the irrigated acreage or consumptive use caps;
Existing uses at the time of settlement have been protected; and
Transparency in our compliance operations has dissolved the acrimony of the lawsuit days.
A solid, mutually respectful, working relationship with Nebraska now exists.
How about the Montana v. Wyoming case?
The first major ruling in 2011 said Wyoming wasn’t violating the compact by our appropriators changing from flood to sprinkler irrigation. Later, the Powder River was dropped from the case, and allegations of injurious groundwater use were not proven. All of these were positive for Wyoming. However, because the prior appropriation system applies across state lines with regard to post-compact rights, we are obligated to regulate those users if a valid call is received to fill Montana’s pre-compact Tongue River Reservoir (TRR) or to meet the demands of pre-compact natural flow users in Montana. And, if we store water out of priority in our post-compact reservoirs and TRR doesn’t fill after a call, we risk having to release that stored water to Montana.
In both 2015 and 2016, we received the call to fill TRR and honored it both times. In both years, it filled after a few short weeks, resulting in only a handful of post-compact users being affected, and Wyoming retained its post-compact stored water in our part of the Tongue River Basin.
Much like in the North Platte, appropriators are seeking lawful ways to improve their access to water to avoid being impacted by this call, from acquiring storage water to petitioning to move water rights or by entering exchange agreements to solidify their water supplies. The working relationship among water administrators in both Wyoming and Montana now exhibits a more open exchange of information, and we are hard at work with Montana and federal natural resource agencies to improve runoff forecasting in the Tongue River Basin. This coordination between Wyoming and Montana continues, despite the fact that the lawsuit has yet to come to closure. Active litigation or not, we still have a river to administer and users who need some predictable system under which to operate.
Returning to the title of this article, it is easy in hindsight to distinguish the bad from the good and the helpful. The bad is the real or perceived injury that launched the case, the damage caused to critical working relationships and the many drawbacks of litigation. The good and the helpful part is that when a case ends, reparations are made, and we know better the expectations for future operations.
Wyoming has been successful in protecting the vast majority of our users from impact due to these cases, while in a few instances we have learned that regulation for the benefit of the other state is appropriate. So we do it. After all, we were once the downstream state, and demanded, and got, the same result. We cannot act like we are the only state on a river. Law and comity demand otherwise. But we can defend our uses under that law in a way that also respects downstream lawful uses. It’s a balancing act and a relationship, which must be carefully maintained.