WATER WARS! FRIDAY, MAY 19, :00 9:00

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1 GROUP LEGAL SERVICES ASSOCIATION SOLO, SMALL FIRM, AND GENERAL PRACTICE DIVISION STANDING COMMITTEE ON GROUP & PREPAID LEGAL SERVICES MAY 18-20, 2017 SCOTTSDALE, ARIZONA WATER WARS! FRIDAY, MAY 19, :00 9:00 PRESENTER: BILL STOUDENMAIER

2 Bill Staudenmaier Law Offices of Snell & Wilmer Phoenix, AZ Bill Staudenmaier has been practicing water law and natural resources law for more than 25 years. He focuses on acquiring and protecting water rights for industrial, municipal and agricultural water users. Bill's water law practice involves representation of clients in general stream adjudications, negotiation of contracts for transfers of water rights, obtaining permits and approvals from state and federal regulatory agencies, and drafting, negotiating and lobbying concerning state and federal water resources legislation. Bill represents large water users in both pending general stream adjudications in Arizona (Gila River and Little Colorado River), including appellate representation on issues relating to the rights of groundwater users and tribal water rights. Bill also represents clients holding contractual rights to Colorado River water, assisting those clients in securing, protecting and defending their rights in negotiations, administrative matters, and litigation. Bill also advises clients with interests arising under a number of interstate water compacts. Bill represents private and public sector clients in negotiations to settle a variety of Indian water right claims, including the Gila River Indian Community Water Rights Settlement, the White Mountain Apache Tribe Water Rights Quantification Agreement, and ongoing negotiations to settle the claims of other Tribes in Arizona. In addition, he represents private and public entities in transactions to secure water supplies, including negotiation of long-term water supply contracts for major industrial facilities, water supply contracts for golf courses, and contracts to acquire water rights for municipal and private development purposes. Education University of Michigan Law School (J.D., magna cum laude, 1987) o Order of the Coif University of Wisconsin (B.S., Forestry and Soil Science, with distinction, 1983) o Dean's List

3 Water Wars! (Or Why I Have Fun Practicing Law) L. William Staudenmaier Snell & Wilmer, L.L.P. Phoenix, AZ

4 Water Wars Famous Quotations We ll not know the worth of water till the well runs dry. Thomas Fuller (or Ben Franklin, or a Scottish proverb) Whiskey is for drinking; Water is for fighting over. Probably not Mark Twain In the 20 th Century, wars were fought over oil; in the 21 st Century, wars will be fought over water. Numerous commentators over the past 20 years.

5 Wars over Water? Will wars really be fought over water? Consider the Tigris and Euphrates Rivers: Both originate in Turkey and flow through Syria and Iraq, discharging to the Persian Gulf on the border with Iran. What if Turkey decides to keep more of the flow? What remedies do downstream nations have?

6 Got Water? Water is critical to life. How can we ensure that we have what we need?

7 Where do we find water? Water covers 71% of the earth s surface. But 96.5% of this water is in the oceans too salty to drink without expensive treatment. Of the remaining 3.5%: 68% is in ice and glaciers 30% is in the ground 0.26% is in lakes 0.006% is in rivers

8 How do we use it? Public Supply 11% Industrial* 5% Domestic,* Livestock,* Aquaculture,* Mining* 2% Thermoelectric 48% Irrigation 34% * Indicates Selfsupplied Hutson et al. (2004). Estimated Use of Water in the United States in 2000, United States Geological Survey (USGS) Circular pg. 4, Available on line at:

9 Who is at risk? Water map shows billions at risk of water insecurity. More than 3.4 billion people face the highest threat level. BBC News, 2010.

10 Potential Water Sources in the U.S. Intrastate Surface Water Groundwater Interstate Water Sources (e.g., Colorado River, Great Lakes, eastern river basins) Effluent (Recycled/Reclaimed Wastewater) Colorado River

11 Types of Surface Water Rights Riparian Rights Eastern States Owners of land bordering rivers and lakes may use water, but may not unreasonably interfere with use by other riparian owners. Prior Appropriation Rights Western States First in time, first in right

12 Riparian Rights Riparian rights are based on ownership of land adjacent to a water body time of first use of water is irrelevant. Shortages may need to be shared during droughts. Many eastern states have adopted permit-based systems to administer (regulated riparian systems). Hudson River

13 Prior Appropriation Water rights are based on earliest use of water ownership of land adjacent to the water course is not a factor. Highest priority rights are entitled to their full amounts during drought no requirement for shared shortages. State law-based rights must accommodate federal reserved water rights. Top: Colorado River Bottom: Columbia River

14 Prior Appropriation and Riparian Doctrine States

15 Resolving Prior Appropriation Conflicts Most western states conduct general stream adjudications. All claims to water within a geographic area are resolved in a single inter se proceeding. Frequently, this involves thousands of individual claims. Idaho more than 120,000 claims in the Snake River Basin. Arizona more than 95,000 claims in the Gila River Basin. Both state law and federal water right claims must be addressed. Federal reserved water rights. McCarran Amendment waiver of sovereign immunity.

16 Groundwater Laws vary significantly by State. Examples: Prior Appropriation Similar to surface-water system Reasonable Use Right to withdraw and use groundwater in conjunction with reasonable use of land Correlative Rights Shared access to the common supply Groundwater often is not a renewable supply many aquifers are being tapped at substantially higher rates than natural or artificial recharge. Disputes typically resolved on a case-by-case basis.

17 Effluent/Reclaimed Water Laws vary by State Example: AZ APS v. Long Phoenix-area wastewater sold to Palo Verde Nuclear Generating Station. Challenged by other water users. AZ Supreme Court ruled that cities may sell effluent. Effluent supply grows with population. As non-potable water, effluent is an ideal source for power generation, irrigation, and other non-drinking water uses. Palo Verde Nuclear Generating Station Wintersburg, AZ Uses 20 Billion gallons of effluent yearly

18 Interstate Water Sources Rivers and lakes shared by two or more states Conflicts often arise between states particularly when upstream states divert significant quantities of water. Conflicts can be addressed in three ways: Supreme Court original jurisdiction lawsuits between two or more states. U.S. Const. Art. III, Sec. 2. Court applies common law doctrine of equitable apportionment. Congressional apportionment e.g., Lower Colorado River, Truckee River. Interstate compact agreement among states, approved by Congress. U.S. Const. Art. I, Sec. 10, Cl. 3.

19 Supreme Court Equitable Apportionment Supreme Court applies federal common law to equitably apportion interstate streams when one state sues another. Guiding principle is equality of right among the states involved (approximately equal shares). A state seeking to enjoin a diversion in another state must show a real or substantial injury or damage. Existing uses are likely to be protected, but may be required to become more efficient water conservation is a relevant consideration. Priority of use (i.e., first in time, first in right ) is a guiding factor in prior appropriation states, but not determinative.

20 Interstate Stream Litigation Montana v. Wyoming Kansas v. Nebraska/Co. Texas v. New Mexico South Carolina v. North Carolina Mississippi v. Tennessee Florida v. Georgia Examples

21 Congressional Apportionment Example: Colorado River Basin covers parts of seven Southwestern States Lower Basin apportioned by Congress in California 4.4 MAF Arizona 2.8 MAF Nevada 0.3 MAF Supreme Court confirmed these allocations in Arizona v. California (1963) Available at

22 Interstate Compacts Negotiated among states on a voluntary basis. Must be approved by Congress pursuant to Compact Clause U.S. Const. Art. I, Sec. 10, cl. 3. Numerous examples approximately 27 existing compacts allocating interstate waters: Collectively, these compacts affect over 95% of freshwater resources in the United States. Some states are parties to multiple compacts (e.g., Texas 5). Older compacts simply divided the water resource. More recent and more effective compacts establish a governing body typically a compact commission.

23 Example: Delaware River Basin Delaware River Basin Compact New York, Pennsylvania, New Jersey, Delaware and United States. Water from the basin serves approximately 15 million people. Governed by a commission. Commission must approve new withdrawals above 100,000 gpd or consumption above 10,000 gpd. Source:

24 Great Lakes Interstate Compact The Great Lakes touch eight U.S. states and two Canadian provinces. They provide drinking water for 25 million U.S. residents. Legal Regime: Riparian or Regulated Riparian Doctrine in all States Great Lakes Interstate Compact effective 2008 Companion Agreement with two Canadian Provinces

25 The Great Lakes contain 90% of North America s fresh water (more than 20% of global supply).

26 Great Lakes Interstate Compact The Great Lakes-St. Lawrence River Basin Water Resources Compact Does not allocate specific quantities of water to individual states. Does not grant water allocation authority to the compact commission each state manages its own in-basin supplies. Requires each state to apply minimum standards for water conservation and sustainability for in-basin uses. Prohibits most diversions outside the basin (limited exceptions for communities that straddle basin boundaries exceptions must be unanimously approved by Commission).

27 Failed Interstate Compact: Apalachicola-Chattahoochee-Flint River ACF Basin Georgia, Alabama and Florida Decades-long dispute over water allocations Basin Municipal water supply for Atlanta threatens downstream uses, including important shell fishing areas in Florida. Atlanta population has more than doubled since 1970.

28 Apalachicola-Chattahoochee-Flint River Basin Alabama sued Army Corps of Engineers in 1990 asserting that water provided to Atlanta threatened uses in Alabama in violation of federal law. Alabama, Florida and Georgia signed compact in 1997 Required states to agree on water allocations by 2003 States failed to agree on allocation compact terminated. Litigation continued in several federal courts. Finally, in 2013, Florida initiated an equitable apportionment suit in the Supreme Court. In 2017, the special master appointed by the Supreme Court issued an initial report that favored Georgia. Florida is challenging that report, having already spent > $72 million.

29 Conclusions Water is a precious commodity and critical to life itself. Water is in chronically short supply across much of the earth. Limited supplies of an essential substance leads to conflict hopefully not real war. Legal mechanisms exist to address and resolve water conflicts (at least within the U.S.). Creative solutions, careful legal analysis, and vigilance help secure and protect water supplies.