State To State Water Agreements

There are three ways that water wars between states may be resolved:

1. The U.S. Congress may pass a law dividing up water rights.
2. The U.S. Supreme Court can use federal common law on interstate water allocation.
3. States can negotiate compacts that divide up the water rights between them, with Congressional approval.

These legal mechanisms matter to farmers because they affect how much water farmers may get. In recent years, interstate disputes have forced some farmers to stop irrigating.

Of the three legal approaches, Congress has allocated interstate waters only two times, once in 1928 (between Arizona and California) and once in 1990 (between California, Nevada and the Piute Tribe). Congress usually doesn’t get involved because water disputes are local and the political process is full of pitfalls. Many states don’t trust the federal government to resolve their problems.

The U.S. Supreme Court is actually the last resort in water wars between states, or between states and Native American tribes. But again, many states don’t trust the court and don’t want to spend the millions and millions of dollars it takes to litigate a case in the Supreme Court.

So, compacts negotiated between the various states and tribes claiming water from a river basin have become the preferred approach.

Since 1950, various states in the U.S. have entered into 26 compacts to allocate water between them, particularly in the western half of the country.

The first compact is still one of the most important and contentious – the 1922 Colorado River Compact between Colorado, Wyoming, Utah, New Mexico, Arizona, Nevada and California. But it was not until 1944 that the last state, Arizona, signed the compact, and they still weren’t happy. In 1952, Arizona asked the U.S. Supreme Court to give them more water and California less. Finally in 1963, the Court gave Arizona what it wanted, 2.8 million acre feet (maf) of water a year. California got 4.4 maf and Nevada got 300,000 af a year from the Court.

As with most compacts, one of the primary goals was to ensure adequate water for irrigation projects, with secondary concerns for drinking water, industry, recreation, and (later) for the environment. The Colorado River Compact, for example, supplies huge amounts of water to California’s industrialized farming enterprises. Despite California’s huge population and industry, 85 percent of the water in the state goes to irrigation. The state’s Central and Imperial Valleys produce much of the nation’s fruits, vegetables and cotton.

Other water wars and compacts involve Washington state, Oregon, Idaho, Missouri, Iowa, both North and South Dakota, both North and South Carolina, Georgia, Alabama, Florida, Maryland, Virginia, New Hampshire, Connecticut and the Great Lakes states of Illinois, Minnesota and Michigan. Nebraska is periodically fighting with Colorado, Wyoming and Kansas over various compacts.

In the fight with Kansas over the Republican River basin, Nebraska has had to take extraordinary measures to meet its water obligations.

The Republican River basin starts on the plains of eastern Colorado, runs through southern Nebraska and then into Kansas. The compact goes back to 1943 when the states agreed that Nebraska should be able to use 49 percent of the water in the basin, Kansas got 40 percent and Colorado got 11 percent.

The Harlan County Reservoir was built in south central Nebraska in 1952 and was designed to hold 840,00 acre feet of water. But in recent years, the reservoir is holding only 37 percent of its capacity. Between 2003 and 2006, the reservoir was unable to supply any irrigation water at all, the first time that’s happened since the ’50s.

Kansas says the reason is that so many groundwater wells have been drilled in Nebraska that the Republican River is being sucked dry. Nebraska first tried to deny that groundwater pumping had any impact on surface water supplies. But hydrologists and the U.S. Supreme Court disagreed.

So, now, the Nebraska legislature and Natural Resource Districts are moving to halt new groundwater irrigation development. There are proposals to pay farmers not to irrigate – in essence buying water from farmers to ship to Kansas. Other plans would buy water and store it in other reservoirs until it’s needed.

The state is literally trying everything it can think of. Saltcedar is a large shrub that was introduced from Asia in the early 1800s. It grows prolifically along riverbanks, including the Republican. The problem is that it sucks a lot of water out of the river, accumulates salt in its branches and then releases that salt back into the soil killing native species. Because it uses so much water, Nebraska is paying $75,000 to have Saltcedars killed along the Republican, hoping to save water to meet its compact obligations.

Written by Bill Ganzel, the Ganzel Group. First published in 2006. A partial bibliography of sources is here.