Other notable water rights litigation includes the United States’ participation in actions for the apportionment of interstate streams – or the enforcement of interstate compacts over the division of interstate water – in which the parties invoke the highly limited original jurisdiction of the Supreme Court. Although such litigation is certainly not common, such interstate disputes do arise on occasion. When such actions are filed, the United States often participates in them due to its interests in the use and development of interstate waters and the operation of federal water projects.
For instance, the United States participated in Wyoming v. Colorado – an action filed in 1911 for the apportionment of interstate waters of the Laramie River between these states. As reported by the Attorney General following the entry of a final decree by the Court in 1922, the “Government had participated in two rearguments of this case because of its interests in Indian and Reclamation Service water rights, and the decision is gratifying in that it denies that there is any right in a State to control and dispose of all the waters of interstate streams whose sources are within her borders, and upholds the right of other States lower down and their inhabitants to a reasonable share thereof . . . .”
Other examples of original actions include the United States’ intervention in Nebraska v. Wyoming and Colorado, 325 U.S. 589 (1945) – an action over the apportionment of the waters of the North Platte River – and Arizona v. California, 373 U.S. 546 (1962) – an action concerning the allocation of the waters of the Colorado River and its tributaries. More recently, the United States has participated as amicus curiae in two original actions – Montana v. Wyoming, concerning the Yellowstone River Compact, and Kansas v. Nebraska, concerning the Republican River Compact. The United States has also intervened as a plaintiff in Texas v. New Mexico to secure deliveries of project water from the Bureau of Reclamation’s Elephant Butte Reservoir to Texas and Mexico under the Rio Grande Compact, which apportions the water of the Rio Grande Basin among the States of Colorado, New Mexico, and Texas.
Finally, aside from its litigating role, the Department of Justice – in concert with the Department of the Interior – has also played a significant role in negotiating compacts and subsequent agreements governing the use and allocation of interstate waters. As Assistant Attorney General for the Lands Division, Edwin L. Weisl, Jr., reported in 1965, the work of the Water Resources Unit of the General Litigation Section includes, “the negotiation of interstate water resources compacts, through the rendition of advice to federal representatives to interstate compact commissions and the review of compacts so negotiated.”
One leading example of these efforts is the involvement of Department of Justice attorneys in negotiations concerning the “Law of the River,” the complex legal framework of interstate compacts (including the 1928 Colorado River Compact), federal statutes and regulations, court decrees, water delivery contracts, operating criteria, and other documents that affect the use and integrated management of the waters of the Colorado River.
More recently, attorneys from the Natural Resources Section, along with representatives of Department of the Interior, participated in the negotiation in 2003 of the Colorado River Water Delivery Agreement between the United States, the seven Colorado River Basin states, the City of San Diego, the Imperial Irrigation District of California, and the Metropolitan Water District of Southern California.
Among other things, this historic agreement provides for a stepped overall reduction in California’s use of Colorado River water to its 4.4 million acre-foot apportionment under the Colorado River Compact by a date certain and facilitates the transfer of “saved” waters from the Imperial Irrigation District to San Diego. It also provided a path by which the other lower basin states of Arizona and Nevada may use their full apportionments of Colorado River water without resumption of the Arizona v. California litigation.