Publisher: ISBN: CORNELL:31924013740463 Category: Water Page: 168 View: 530 Beneficial use ceases when use ceases; however, it can be difficult to determine when use has ceased.62 Most western states employ some sort of statutory language that “declare[s] in substance that the unexplained nonuse of an appropriative right over a continuous period of years will terminate the right.”63 “Abandonment” and “forfeiture” are both considered a termination of use. Mississippi is concerned with the City of Memphis’ pumping of groundwater close to the Mississippi/Tennessee border. . See Goldfarb, supra note 13, at 7–8; see also Dellapenna, supra note 26, at 120 (“Consumptive uses are defined as creating permanent interference with competing uses or at least more than the transitory interference of nonconsumptive uses.”). Equitable apportionment of water resources. 539, 551–52 (2004); see infra Section II.A. South Carolina seeks an equitable apportionment of the Catawba River. Id. Given these facts, we think Georgia would likely fare very well in any traditional equitable apportionment: Georgia is using its water resources wisely and conservatively, as it entitled to do, and the existing precedents tilt heavily in Georgia's favor by establishing a strong preference for domestic uses and for established economies, see e . . The natural flow doctrine entitled each riparian-rights owner to “have the water flow across, or lie upon, the land in its natural condition, without alteration by others of the rate of flow or the quantity or quality of the water.”30 Throughout its use in the mid-1700s to early 1800s, the law never fully embodied the consequence of this doctrine because it would have prohibited all consumptive use of the water except for the final downstream riparian owner.31, As populations began to grow in the eastern United States in the mid-1800s and landowners utilized water for industrial uses, the natural flow doctrine could not adequately govern because there was more strain on rivers. In this example, flood irrigation could be termed a wasteful use of water even though it is under the greater beneficial-use umbrella of irrigation. [17]. Secondly, clarifying the conflict type guides the Court’s decision regarding the evidentiary bar it will require in the second part of the litigation. It will be published later this year in the Utah Law Review's inaugural . It would create a more nuanced balancing test that takes into account the myriad of interests at play in interstate water conflicts. at 672 (“There is nothing in the master’s findings of fact to justify an inference that any real or substantial injury or damage will presently result to Connecticut from the diversions by Massachusetts ... .”); see also Tauer, supra note 91, at 910–11. Little Rock L. Rev. 124 0 obj <>/Filter/FlateDecode/ID[<8C90BB2AB5AFFC12D3416AAFFC68BFA6><76108DDC1E4B5D4CB4B501E381DFF441>]/Index[116 21]/Info 115 0 R/Length 59/Prev 113143/Root 117 0 R/Size 137/Type/XRef/W[1 2 1]>>stream Peter Groplerud, Protection and Termination of the Water Right, in 2 Waters and Water Rights 436 (Robert E. Beck ed., 1991). It may be recalled that the annual meeting scheduled to be held in March 2020 was cancelled 'in view of the pandemic . State Equitable Apportionment of Western Water Resources Harrison C. Dunning University of California at Davis School of Law, hcdunning@ucdavis.edu Follow this and additional works at:https://digitalcommons.unl.edu/nlr This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. This principle is recognized by the ILA. the water is being used and the amount used are reasonable under the circumstances. Learn more, 229 Peachtree ST NE, STE 100 . as well as by several regional instruments, 13 . Colorado v. New Mexico, 459 U.S. 176 (1982), held that the doctrine of equitable apportionment could extend to Colorado's claim against New Mexico to divert interstate water for proposed future uses, but These sources include surface water sources, such as the Jordan River and ephemeral streams known a I've just posted a pre-publication draft of a forthcoming new article, "Interstate Groundwater Law in the Snake Valley: Equitable Apportionment and a New Model for Transboundary Aquifer Management." The article is co-authored by Benjamin L. Cavataro, a former student at the University of Michigan Law School. Second, the court “will attempt to balance both the costs and benefits of the states’ uses of the shared resource” in a cost-benefit analysis that takes into account the “‘big picture’ . Special Master Recommends Denying Florida's Request for Equitable Apportionment in Florida-Georgia Water Dispute The Special Master in the long-running dispute between Florida and Georgia over the apportionment of the Apalachicola-Chattahoochee-Flint River Basin (ACF Basin) issued a report to the U.S. Supreme Court last week that is favorable . Compact can establish an equitable apportionment; equitable apportionment is not limited to judicial proceeding. The Supreme Court's docket can be accessed here, filings in the Special Master's proceeding are available here, Early Proceedings - October 2013 - November 2014, Work Under Special Master Lancaster - 2014 through February 2017, First Argument before Supreme Court - March 2017 through August 2018, Work Under Special Master Kelly - August 2018 through November 2019, Second Argument before Supreme Court - December 2019 - February 2021. Throughout the edition, where appropriate, analysis expands on the subjects of instream flow protection, water quality, and public-interest concerns in water use and water collection. Michael D. Tauer, Evolution of the Doctrine of Equitable Apportionment—Mississippi v. Memphis, 41 U. Memphis L. Rev. Finally, the bifurcated system would provide the Court with opportunities to apply different standards and different balance of harms analyses depending upon the unique factual circumstances of the conflict. In this regard, the Indus Waters Treaty is an excellent example of the pragmatic implementation of the principle of equitable utilization, as well as of the principles . Every eastern state except for Mississippi utilizes the riparian rights regime. The Court has not yet been faced with an equitable-apportionment action for groundwater, but several disputes are emerging around the country that may soon command the Court's attention. Since the aquifer is interstate in nature, the Special Master's second finding was that equitable apportionment was the appropriate remedy for Mississippi. endstream endobj startxref Both of these situation types emphasize the need for a law driven test to define waste—especially as more strain on water sources will mean that every drop really does count. The conflict-type determination has the dual benefit of (a) streamlining the focus and technicalities of the litigation and (b) eliminating the confusion regarding the evidentiary demonstration. Colorado v. New Mexico, 467 U.S. 310, 312 (1984). The focus of the Court's analysis is to apportion the water so that each Rather, the Court’s analysis suggests Colorado was burdened to actually locate the additional water in New Mexico that it proposed to use even though the evidence demonstrated that (1) New Mexico’s use was inefficient and therefore water was available, and (2) Colorado’s use would provide an identifiable benefit. 625, 627–28 (2002). [149]. See Dellapenna, supra note 20, at 551, 565 (“To the east of Kansas City, despite occasional serious problems with water quality arising from human activities, water shortages historically were rare and short-lived. Prior appropriation is essentially a first in time, first in right system of ownership.49 Landowners, who first applied a beneficial use to the source of water—for example by manipulating its flow to their mine or irrigating crops—obtained a legal right over that water.50 Then “each subsequent appropriator had a priority over all who came later.”51 Unlike in the riparian system, however, the right to water could be “lost when the use [was] discontinued.”52 The beneficial use aspect of prior appropriation coupled with the first in time user, are the foundations of the basic prior appropriation doctrine. Also, it said Florida's request for an "equitable apportionment" of water --- effectively seeking to place limits on Georgia water use --- would have major economic ramifications. Part III presents the problem with the current equitable apportionment framework, why its application after Colorado v. New Mexico has changed, and the challenges the current state of the equitable apportionment doctrine presents for interstate water conflicts moving forward. 1453, 1457 (2004). The Supreme Court “concluded that, when state laws and policies were in conflict, equity would control and the interests of the two states would be balanced.”90, Three key principles developed in Kansas v. Colorado from the foundation of the equitable appropriation doctrine. Wyoming v. Colorado, 259 U.S. 419, 464 (1922). [11]. [32]. [93]. Colorado, 467 U.S. at 316 (quoting Colorado, 459 U.S. at 187). prevention of speculation as a . Additionally, the riparian regime required users to forfeit some of their water usage in times of scarcity and failed to allow for water storage in case of drought, a more common occurrence in the West than in the East.45 In short, a system that required land ownership adjacent to waterways in order to access the water “would be to condemn the non-adjacent parcels as useless.”46 In the West, such a system also had the potential to result in mass crop failure, which, for newly arrived settler communities, was far too large a risk.47 Unlike in the East where communities developed along rivers, settlers in the West spread out across the vast landscape. The conflict-type question would require the parties to establish the conflict was either (a) a prior-use conflict type, where both states already used a common water source or (b) a new-use conflict type, where one state used a common water source and the second state wanted access (like that in Colorado v. New Mexico). An equitable apportionment action, in contrast, asks the U.S. Supreme Court to issue a decree stating how much water each State can use. In past cases, the complaining state had the burden of proving harm from the other state’s water use.125 The Court stated: [it] is necessary to appropriately balance the unique interests involved in water rights disputes between sovereigns. In each bucket the advantages and disadvantages for each party would be analyzed equally from both perspectives of the dispute. . In Colorado v. New Mexico the Court ultimately found that Colorado had not met its evidentiary burden to demonstrate how the New Mexico users could “further eliminate or reduce inefficiency” in their water use to free up water for Colorado’s use.133 The Court put forth its analysis for this finding, and Justice O’Connor suggested that the Court adopt that same test as the test to define a wasteful use of water in equitable apportionment cases.134 Under the test, if waste is alleged, it is proved by showing the availability of “[f]inancially and physically feasible conservation efforts” that are not being undertaken.135 There must be “specific evidence about how existing uses might be improved, or . The problem this Note seeks to solve is how to make the equitable apportionment doctrine applicable in the current period to solve tough interstate water challenges, while maintaining the roots of the doctrine as the Court has established it. 2. PAST experience shows that India has shown less than logical regard for its international obligations, particularly those concerning its neighbours. The record seemed to firmly establish the finding of New Mexico’s waste. The first section of this paper sets out the "inequitable" and "equitable" water-apportionment frameworks, which were devised to divide transboundary river waters between two or more states. These cases from 1931 solidified two aspects of the equitable apportionment doctrine: the evidentiary standard of harm a state must present, and the relatively weak role that states’ own water regimes would play in equitable apportionment. Priority of appropriation is the guiding principle. © 2021 Atlanta Regional Commission. Colorado v. New Mexico highlights two challenges posed by the equitable apportionment doctrine in its contemporary application. Secondly, the Special Master imposes a judgment call about what is a beneficial use or a wasteful use in his or her report to the Supreme Court. The case is Florida v. Georgia, No. . Oral argument: January 8, 2018. Additionally, both the Special Master and the Court seemed to accept that finding. In 1907, the Supreme Court first articulated its power of equitable apportionment in Kansas v. Colorado.6 The Supreme Court has also heard an equitable apportionment case involving harm to oyster fisheries in eastern riparian states. (citing the Report of the Special Master at 23). Their support elevates ARC leadership programs, research and events throughout the year. Back in print for the first time in over ten years, this classic account of the numerous struggles--national, state, and local--that have occurred over western American water rights since the late 1800s is thoroughly expanded and updated to ... "Equitable Apportionment" means the allocation of water resources based on the needs of the applicant and other users, and the availability and reasonable beneficial use of the water resources. 102 Rather, the Court examined “the pertinent laws of the contending States, and all other relevant facts” to establish an equitable apportionment.103 Again in 1931, the Court adopted equitable apportionment in lieu of the principles of riparian rights to solve a lawsuit between riparian states in New Jersey v. New York.104 In holding that New York had to limit its withdrawals from the Delaware River, the Court emphasized “[t]he different traditions and practices in different parts of the country may lead to varying results, but the effort always is to secure an equitable apportionment without quibbling over formulas.”105 The holding in New Jersey v. New York firmly established equitable apportionment as the judicial remedy for interstate water conflicts, irrespective of the internal state water doctrines of the disputing states. Soc’y Int’l L. 49, 50–51 (2012). In part two of the litigation process, the parties would present the balance of harms argument to the Special Master who would in turn submit his or her recommendation to the Court. [31]. Id. (�@X@wU��b�i}7>x;�%G�7|� h�bbd``b`�$C�C�`�$8�Ab� �0 ��#3���H�1�@� �� Currently, the Court uses the elements listed in Nebraska v. Wyoming and balances the harms against the benefits. Consequently, it is no surprise that water is the topic of much conflict in the United States2 and across the globe.3 In the United States, large rivers like the Missouri or the Mississippi have created the metropolitan areas in which we live and the industries upon which communities rely. Are Shared Benefits of International Waters An Equitable Apportionment … of International Environmental Law and Policy, 2007. The conflict-type litigation allows the Court to gain a sense of the case prior to making the balance of harms decision. 116 0 obj <> endobj “First, the principle of ‘equality of right’ places the states on equal footing with regard to internal governance and the privilege of being free from regulation by other states.”91 Since states are independent sovereigns, they have equal rights to the water that runs through their boundaries, and they are equal before the eyes of the Court —one state does not automatically have a stronger claim to the water than the other.

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