‘The point is every stream flows out of the State of Colorado has an interstate compact obligation’ — Jeris Danielson

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From The Trinidad Times (Steve Block):

A recent meeting in Trinidad hosted by the Purgatoire River Water Partnership provided information about those water rights issues, specifically the compact established by state legislation in 1950, often known as the Kansas Compact, that determines how much of the available water each state is entitled to. The partnership was put together within the last year to try to explain water rights, and how to avoid conflicts between states over water.

Jeris Danielson, State Engineer and Director of the State Division of Wildlife Resources from 1979 to 1992, was on hand to give a brief history and interpretation of the Kansas Compact and what it means for water rights in this region. Now a private consultant and manager of the Purgatoire River water Conservancy District, Danielson gave a Power Point demonstration of interstate water rights in general, and those that directly impact Colorado…

“The point is every stream flows out of the State of Colorado as an interstate compact obligation,” Danielson said. “He described an interstate compact as, ’An agreement between two or more states to settle particular difficulties involving the adjustment of political rights not susceptible to Federal Action alone.’”

Danielson showed an image of the multiple compacts Colorado has, then described how those contracts were put into place. He said each compact first requires the approval of the state legislatures of the affected states, followed by approval from Congress and then from the president…

Eve McDonald is an expert on water rights and Federal Indian water rights law. McDonald is counsel to the State Division of Engineers and to the staff of the Colorado Water Conservancy Board (CWCB). She said that when an interstate stream is divided between two states, a 1907 U.S. Supreme Court ruling in a dispute between Colorado and Kansas established the principle of ‘equitable apportionment.’

“That’s a division of water based on need,” McDonald said. “That means one state has to prove to the Supreme Court that the other state has substantially infringed on its need for the water. That’s usually based on how much use and reliance on the water has already been established and how many acres are already being irrigated. Instead of litigating it, the nice thing to do is enter a compact, because the doctrine, if you’re litigating it and not deciding by contract between two states through Congress, the doctrine led to a tendency to hurry up and use the water and develop the water lines so that you’re equitable apportionment would be greater than the other state’s.”

McDonald said compacts allow states to agree on present and future water needs. The agreements can be enforced only through the states. She said no individual rights supersede equitable apportionment, even if they date from before the date the compact was created. She said two state agencies, the CWCB and the State Engineer’s Office, have responsibility for enforcing water compacts. She said that as water supplies are reduced for various reasons, that can impact the water compacts themselves.

More water law coverage here.

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