High Court Dissects US Role in State Water Disputes

The Boquillas Canyon section of the Rio Grande is classified as wild by the National Park Service. (Jennette Jurado/NPS)

WASHINGTON (CN) – U.S. involvement in one state dispute over water rights, and the government’s absence from another, rankled the Supreme Court this morning in its first two hearings of the new year.

Uncle Sam got involved in the first case after Texas complained about New Mexico’s usage of water from the Rio Grande river basin.

Before the water reaches Texas, it first must pass through the Elephant Butte Dam and Reservoir, a federal reclamation effort in Truth or Consequences, New Mexico, that is part of the Rio Grande Project.

Though the 1938 Rio Grande Compact governs distribution of the water in that dam, Texas said New Mexico has been steadily increasing its use.

In its bid to intervene, meanwhile the United States claims that New Mexico’s actions have interfered with the federal government’s ability to comply with a water treaty it signed with Mexico in 1906.

Assistant to the U.S. Solicitor General Ann O’Connell told the Supreme Court on Monday that the government has protected interests in the complex water-management scheme.

“Where the compact protects specific federal interests that are at stake in the dispute that’s been filed in this court, then we believe the United States can intervene as a plaintiff and bring claims against New Mexico that are based on that compact,” O’Connell said.

Arguing for New Mexico meanwhile, Robles Rael attorney Marcus Rael said there is no need for the court to mine the compact.

“There’s no remedy that they’ve sought in their complaint in this case that they can’t get under the Reclamation Act of 1902 that they can get under the compact,” Rael said of the U.S. government.

Colorado is a party to the suit as well, however, and state Solicitor General Frederick Yarger said it would be “unprecedented” to let the United States proceed in the case.

“If the United States has the authority to bring independent claims under a compact, how do the states have the ability to settle claims once and for all under a compact that the United States is not a party to?” Yarger asked.

Yarger noted the United States could still join the case as a friend of the court, a step it has before taken in other water rights cases.

O’Connell faced tough questions from the court, with Chief Justice John Roberts asking why the federal government didn’t lay out these protected interests before the compact took effect.

Justice Elena Kagan questioned meanwhile why the government would ever green-light a compact that directly implicates federal obligations without confidence in its ability to protect its own interests in the future.

“You have to think in a case like this that the approval of the compact was premised on an understanding that it would protect the United States’ own interests, which is exactly what the United States is trying to assert here,” Kagan said.

The second case of the day also involves water consumption, namely here the United States was conspicuously absent.

The U.S. Geological Survey issued this 2017 national water census on the Apalachicola-Chattahoochee-Flint River Basin.

Florida brought the second case, accusing Georgia of lapping up more than its share of the water that flows through the Apalachicola-Chattahoochee-Flint River Basin, hurting oyster beds in the Apalachicola Bay and putting a blight on the economy in that part of Florida.

The fight over the water in the basin has raged for decades, but the portion of the dispute before the court on Monday was over a report issued by the special master in the case last year.

The special master found, while Florida had suffered injury from the decreased water flow, it had not met the burden of proving a court remedy would fix its problems.

Complicating the case is the fact that Georgia is not in direct control of the rivers within its borders that make up the basin system. The U.S. Army Corps of Engineers has five dams on the Chattahoochee River and controls them based on formulas found in a water control manual that was last updated in March.

Because the corps is not involved in the dispute between Florida and Georgia, the Peach State has argued that any action ordered in the case might not have any impact on the water flowing into Florida.

But Gregory Garre, an attorney for Georgia with the Washington firm Latham and Watkins, said Monday that any additional water freed up in Georgia through a consumption cap would necessarily flow into Florida. He also said the bar the special master put up for Florida to clear was too high.

“This court has never had a situation where it’s recognized a state as being injured, it’s recognized that the upstream state is wasting a resource and the evidence shows that relief is possible and indeed likely and the court has said: nope, too bad, we’re going home,” Garre said.

Craig Primis, an attorney at the Washington firm Kirkland Ellis, said the path of water from central Georgia into Florida is not necessarily one of least resistance.  The Corps of Engineers’ manual, as well as considerations taken during droughts, make it difficult to predict the downstream impacts of increased water flow, Primis said.

“There’s nothing common sense about the operations of this basin,” Primis said. “It is incredibly complicated. There are five reservoirs. They’re subjected to different rules by the Army Corps. They have different hydrological conditions. They serve different purposes.”

The justices seemed sympathetic to Florida in the dispute, but were clearly bothered by the lack of a clear answer on how much Florida would benefit from freeing up more water in Georgia.

“But there seems to be a real dearth of record evidence specifically quantifying how much more water you would have gotten, exactly what benefits would have followed from that,” Kagan told Florida’s attorney on Monday. “It just doesn’t seem as though Florida put that into the record, even though you kind of want to say, well, that must obviously be true.”

%d bloggers like this: