October 04, 2021

The Western Mega-drought’s Impacts on Practicing Water Law in the West

Posted on October 4, 2021 by Thomas Sansonetti

Consider this advice for budding environmental lawyers:  It’s a good time to be practicing water law in the western United States. 

The persistent drought extending into its third decade has reached the point where difficult allocations of available water are challenging the executive, legislative and judicial branches of both state and federal governments.

In the summer of 2021, the U.S. Department of the Interior’s Bureau of Reclamation announced that, due to diminished water levels behind its dams and in its reservoirs impacting fourteen western states, water rationing would begin in earnest.  This occurrence impacts the delicate balance between agricultural and urban interests.  Western states have statutes declaring “first in time, is first in right” as to whom can use water, when, and in what quantity.  Since the settlers of the West in the 1800s were largely ranchers and farmers, they applied for and were granted state water permits to take necessary amounts of water for their beneficial uses, thereby entitling them to “first in time” priority based on the issuance date of the permits.  In contrast, most cities and towns did not obtain their water rights until the 20th century.  Thus, under existing law, crops and cattle drink first.  People in urban centers drink second.

Unsurprisingly, under the current drought circumstances, the fact that there are more urban dwellers than farmers or ranchers is putting tremendous pressure on state legislative branch leaders to change the law to provide more water resources for cities.  Such attempts may fall short in those rural states like Wyoming and Montana where agricultural interests still hold sway in state capitols.  However, the same initiatives could well pass in states like California, Oregon and Washington with large and thirsty coastal populations.  Such changes to longstanding legal tenets can only lead to intra-state conflicts, and 5th Amendment “takings” claims among other lawsuits.

While western water is largely governed under state laws, the federal government plays a big role in the distribution of water associated with its reservoirs and dams.  The same urban versus rural paradigm will play out in Congress where states like California will match their two U.S. Senators and 53 congressional members up against promoters of the status quo like Idaho and Montana with their two U.S. Senators and 2 congressional members each.  Thus, it may come to pass that the House of Representatives will introduce legislation to shift water resources to cities.  If passed by the House, the outcome of the battle over such legislation in the Senate will depend on the votes of eastern U.S. senators “without a dog in the fight.”

“Federal reserved water rights” also come into play here.  These creatures of federal law may come into being via treaty, agreement, statute or executive order and may be implied or express.  The goal of a reserved water right is to supply from previously unappropriated waters an amount of water sufficient to meet the basic needs of a particular constituency or area.

The demand for federal reserved water rights takes many forms.  Among them are water rights for National Wildlife Refuges, National Parks and the 562 federally recognized Indian reservations, or under the Wild & Scenic Rivers Act, the Endangered Species Act, and the Wilderness Act.

As far as priority under state law goes, years of litigation have resulted in a rule of thumb that Indian tribes get a date akin to the year the tribal reservation was created, usually via a treaty with the United States.  The date of the water priority assigned to the other kinds of reservations is most often the date of the legislation’s passage.  Many of the proponents of reservation legislation are not from the states impacted by the loss of available water for domestic, agricultural, industrial, and recreational uses.  As the mega-drought continues, these varying needs establish an intrinsic conflict between human consumption in-state uses versus protected instream flows for fish, threatened species, parks and scenic rivers.  If negotiations between the conflicted parties for some form of pro rata water sharing cannot be achieved, aggrieved parties can only appeal to their legislators or to courts for relief.

The inevitable litigation, whether in state or federal court, will challenge traditional concepts like “first in time, is first in right”, the priority of federal reservation rights, and the “practically irrigable acreage” measuring stick for tribal water quantification.  There will be attempts to re-open the 1934 Colorado River Compact.  There will be new state-legislature driven adjudications of in-state water basins which will involve hundreds of private, state and federal claims to the available water.  States will exercise the original jurisdiction of the U.S. Supreme Court to sue one another.

Given that water is the lifeblood of any society, any of the foregoing actions will be lengthy, contentious and expensive, thus proving the old adage: “Water in the East is for drinking and water in the West is for fighting over!”

A newly minted attorney considering a 30-40 year legal career could do a lot worse than becoming proficient, adept, and well known in the field of Western water law.