A Pipeline to a New Water Era?

My last blog post was about a pipeline to carry fuel. I thought it would be interesting to keep the same pipeline theme going for my latest post, so I decided to write about another proposed pipeline. But this time around, it’s not about fuel. It’s about water.

The Colorado River is a precious water source for at least seven states,[i] 25 million people [ii] and 5.5 million acres of irrigation throughout and beyond the Colorado Basin.[iii] It is vital to the lives and livelihoods of many in this country, but it struggles to maintain sufficient water levels and is often the center of controversial water law issues. A new U.S. Department of the Interior’s Bureau of Reclamation Report, released in December 2012, has come up with a novel idea to maintain the water level of the river: it proposes to construct a 600-mile pipeline in order to pump water from the Missouri River into the struggling Colorado River.[iv] The amount of added water to the Colorado River system could contribute significantly to its recipients, and increase the quantity of water flow by adding supplies sufficient to support upwards of one million single family homes.[v]

While the report also includes some of the more common proposals you may expect, such as water conservation and limiting water consumption, the large project-based proposal is a more radical approach reminiscent of 20th century attempts at water provision that have largely failed.[vi] Large projects have recently begun to resurface as viable options in the present day as mere conservation alone is becoming increasingly incapable of fixing systemic issues, such as ever-increasing demand.[vii] It is true that there was a time not so long ago when people thought that “the big dam era is over and that a central task of water policy is to stretch, reallocate and protect the quality of existing supplies of water,” but population growth and climate change have clearly frustrated these predictions.[viii] Now, the United States federal government, through its various administrative outlets, has been increasingly responding to water shortages with a recurring concept that science and engineering can fix problems too large for simple conservation strategies.[ix]

One of the most contentious issues about this particular pipeline – legally speaking – boils down to a question of federalism. Does the federal government reserve the right to construct and implement such a pipeline?  What about the water rights reserved to the states? The pipeline will be transporting water from Missouri, over the state of Kansas and into Colorado. From there it will be deposited into the Colorado River, feeding many more states downstream, and eventually ending up in Mexico. At the end of the Executive Summary of the Bureau of Reclamation’s Report, there is an explicit statement disclaiming the study’s imposition on any rights or entitlements reserved to the seven states of the Colorado Basin. Such an express repudiation presents strong evidence of the tense balance of power that exists between state and federal management systems with respect to water rights.[x] It’s not just the construction costs that are huge, but the political costs as well.[xi]

The American West has historically maintained a unique legal structure of water rights, especially as compared to the Eastern part of the country.[xii] In the West, state laws have consistently and historically dominated the legal landscape; these laws tended to regulate the “beneficial” use of water within state boundaries, leaving any surplus water in streams and rivers up for grabs on a first-come, first-served basis.[xiii] This type of market-based, individualized management was implemented because water shortage concerns in the 19th century were very different from those of today; scarcity was recognized, but the need for government intervention was not yet seen as an appropriate solution.

While state authorities have historically maintained control over their water rights as an inherently state issue,[xiv] grandiose federal enactments such as the Clean Water Act, and Supreme Court decisions such as Cappaert v. United States, 426 U.S. 128 (S.Ct. 1976) (holding property rights reserved to the federal government include related water rights), have gradually infringed on state water rights.[xv] Acts and decisions such as these are supported by a federal power that can be traced back to the United States Constitution. Multiple references within the Constitution highlight federal supremacy over state rights, including the Commerce Clause (denoting federal power over navigable rivers) and the Property Rights Clause (denoting federal power of United States property, interpreted to include water on the property).[xvi] While under the Constitution the states retain a police power to regulate within their borders, the national government has been able to expand its regulation and infringe upon such regulations over the last half a decade. Indeed, laws governing rivers, lakes and groundwater especially have seen paradigmatic regulatory shifts.[xvii] One thing is clear, however: history has consistently reinforced the supremacy of public necessity over any private interests in water.[xviii] Yet the question remains whether such “public necessity” should be decided by the state government or the federal government.

On the one hand, precedence has often held in favor of a strong deference for state rights.[xix] Yet deference to states is not due to a complete lack of federal power. The federal government maintains the Constitutional and regulatory powers enumerated above to control states’ decisions. Even though the federal government has remained self-restrained when exercising these powers, there have also been very few instances in the water law history of the United States when any significant need has arisen.[xx] Remember that large water projects have been absent from the American legal scheme for many years. Historically, deference for state law has been subjugated to a few large federal projects – such as the Hoover Dam – in which the courts have held that federal directives take precedence over state interests.[xxi] It appears that we may be seeing a re-emergence of these large projects in the present day, after years of absence, which may lead to a new re-balancing of state and federal rights. The federal government has an arsenal from which to pull from in support of their ability to implement large-scale water projects in the Western United States.

However, states too have a large arsenal to pull from in support of their individual concerns. Even with the power of the federal government so delineated, it remains that deference to state water laws has been “high, but not absolute” throughout history.[xxii] The Hoover Dam, a primary example of a massive federal water project, was initially facilitated by a 1922 compact made between the seven downstream states. As recent evidence of this same deference, a 2003 report by the United States Department of the Interior called “Water 2025: Preventing Crises and Conflict in the West” explicitly called for state deference in any water-making decisions that may follow from the report.[xxiii] And this very report, discussing the Missouri River pipeline, has also made note of the state powers remaining reserved to the states. Given the proposed pipeline’s routing, the state of Missouri is especially likely to speak up for state deference; it will be feeling a pure loss of resources, and no gain, under this large-scale project. So too will the states who receive the downstream waters of the Missouri River, for they too have only to lose with this proposal. However, the fact that the Colorado Basin states have already formed a coalition to resolve water disputes is telling that at least those states directly connected to the Colorado River may be more amenable to federal guidance in the construction and implementation of such a pipeline.

Since 20/20 foresight does not exist, the legal balance of powers that will come into play if the pipeline is built remain to be seen. Will the federal government assert sufficient control, through Constitutional claims, Federal Acts or Supreme Court precedence, or will a few states sufficiently support their independent right to regulate water laws, as history has shown a consistent deference for? First we must see if the pipeline will even be implemented. But if it is implemented, we can be sure to look forward to a court case or two hinging on this inherently federalist question.

—–Alison Toivola is a general member of MJEAL.


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[i] Felicity Barringer, Water Piped to Denver Could Ease Stress on River, N.Y. Times, December 9, 2012, http://www.nytimes.com/2012/12/10/science/earth/federal-plans-for-colorado-river-include-pipeline.html?_r=2&.

[ii] Id.

[iii] U.S. Department of the Interior Bureau of Reclamation, Colorado River Basin Water Supply and Demand Study: Executive Summary (December 2012), at 1, available at http://www.usbr.gov/lc/region/programs/crbstudy/finalreport/Executive%20Summary/Executive_Summary_FINAL_Dec2012.pdf.

[iv] Felicity Barringer, Water Piped to Denver Could Ease Stress on River, N.Y. Times, December 9, 2012, http://www.nytimes.com/2012/12/10/science/earth/federal-plans-for-colorado-river-include-pipeline.html?_r=2&.

[v] Id.

[vi] Id.

[vii] Bruce Finley, Missouri River pipeline mulled to ease Front Range’s water woes, The Denver Post, December 5, 2012, http://www.denverpost.com/environment/ci_22126112/missouri-river-pipeline-mulled-ease-front-ranges-water?IADID=Search-www.denverpost.com-www.denverpost.com.

[viii] Joseph L. Sax, The Constitution, Property Rights and the Future of Water Law, 61 U. Colo. L. Rev. 257, 257 (1990).

[ix] Mark T. Anderson & Lloyd H. Woosley Jr., Water availability for the Western United States–Key scientific challenges: U.S. Geological Survey Circular 1261 (2005), at 76, available at http://pubs.usgs.gov/circ/2005/circ1261/pdf/C1261.pdf.

[x] U.S. Department of the Interior Bureau of Reclamation, Colorado River Basin Water Supply and Demand Study: Executive Summary (December 2012), at 22, available at http://www.usbr.gov/lc/region/programs/crbstudy/finalreport/Executive%20Summary/Executive_Summary_FINAL_Dec2012.pdf.

[xi] Bruce Finley, Missouri River pipeline mulled to ease Front Range’s water woes, The Denver Post, December 5, 2012, http://www.denverpost.com/environment/ci_22126112/missouri-river-pipeline-mulled-ease-front-ranges-water?IADID=Search-www.denverpost.com-www.denverpost.com.

[xii] Mark T. Anderson & Lloyd H. Woosley Jr., Water availability for the Western United States–Key scientific challenges: U.S. Geological Survey Circular 1261 (2005), at 27, available at http://pubs.usgs.gov/circ/2005/circ1261/pdf/C1261.pdf.

[xiii] Joseph L. Sax, The Constitution, Property Rights and the Future of Water Law, 61 U. Colo. L. Rev. 257, 258 (1990).

[xiv] See Hudson County Water Co. v. McCarter, 209 U.S. 349, 349 (S.Ct. 1908) (holding state water rights took precedence over federal rights when it comes to natural resources, specifically water rights).

[xv] Mark T. Anderson & Lloyd H. Woosley Jr., Water availability for the Western United States–Key scientific challenges: U.S. Geological Survey Circular 1261 (2005), at 28, available at http://pubs.usgs.gov/circ/2005/circ1261/pdf/C1261.pdf.

[xvi] Reed D. Benson, Deflating the Deference Myth: National Interests vs. State Authority Under Federal Laws Affecting Water Use, Utah L. Rev. 242, 253 (2006).

[xvii] Joseph L. Sax, The Constitution, Property Rights and the Future of Water Law, 61 U. Colo. L. Rev. 257, 268-269 (1990).

[xviii] Id. at 269-271.

[xix] Reed D. Benson, Deflating the Deference Myth: National Interests vs. State Authority Under Federal Laws Affecting Water Use, Utah L. Rev. 242, 243 (2006).

[xx] Id. at 256-257.

[xxi] Id. at 281.

[xxii] Id. at 274.

[xxiii] Id. at 246.