Slaying the Minotaur: Navigating the Equitable Apportionment Labyrinth to Create an Equitable Policy to Guide Water Management

Abstract

States increasingly compete for water, spurred by climate change, more frequent droughts, and increased demand. Three methods exist to resolve conflicts between states over water- compacts, equitable apportionment, and Congressional apportionment. Twenty compacts apportion water between states, the last occurring in 1980. The United States Supreme Court, the exclusive venue for disputes between states, has only apportioned 3 rivers, the last in 1945. At most, 3 Congressional apportionments exist, with one coming as a surprise to Congress as the result of a ruling of the Court. The last Congressional apportionment occurred in 1990. The lack of a practical remedy for state conflicts over water creates a crisis in light of increasing shortages.

This article explores the history of equitable apportionment litigation in the United States Supreme Court, revealing a confusing and inconsistent jurisprudence, where the Court comes to conflicting decisions, often in the same case and separated by just a few years. The latest abrupt reversal occurred in 2021.

Although the case law provides little in the way of guidance to states, the results have been consistent- states that began pumping first and states that withdraw large amounts of water almost always prevail. This circumstance leaves complaining states with no remedy. Early, large volume user states have no incentive to reach a compact. Complaining states have little incentive to spend large amounts of money in a futile attempt to gain an apportionment. Finally, Congress lacks the political will to apportion waters.

After reviewing and analyzing the case law, the author contrasts prior appropriation states and riparian states. The principles derived from the analysis leads to a set of conclusions and recommendations to take the nation from the present situation, where states gain by pumping large volumes of water as early as possible, to a set of policies that better fit the water scarcity of the 21rst Century.

To be published in Volume 39 of the Journal of Environmental Law & Litigation. May not be copied without permission of the journal.

Keywords: surface water rights, equitable apportionment, water management, riparian rights, prior appropriation

JEL Classification: K00, K10