Colorado’s Water Compacts*
Colorado straddles the Continental Divide, where four great rivers begin: the Platte, the Arkansas, the Rio Grande and the Colorado. Colorado and its neighboring state have argued for more than century over who gets how much water from these rivers. The spirited battle among state began with lawsuits filed in the U.S. Supreme Court in the early 1900’s. Within two decades, efforts to make peace began. The compact clause of the U.S. Constitution became the way states could conclude treaty like agreements to share the most vital of all resources: the public’s water.
Colorado has rights and obligations at the headwaters as the mother of rivers. Nine interstate compact, two Supreme Court equitable apportionment decrees and tow other agreements govern how much water Colorado is entitled to use and consume within its boundaries.
What is a Compact?
A compact is an agreement between two or more states approved by their state legislatures and Congress under the authority of the U.S. Constitution (Article I, 10(2)). Compacts constitute both state and federal law. They are akin to treaties between states with the approval and consent of the federal government. A water compact is a contract between two or more states setting the terms for sharing the waters of an interstate stream.
What is the primary purpose of a water compact?
The primary purpose is to establish under state and federal law how the water of an interstate stream system will be shared between users in different states.
What alternative does a state have to determine its interstate water share?
A state may file a lawsuit in the U.S. Supreme Court asking for an equitable apportionment of interstate stream waters among the states, where the court decides how to fairly divide the waters. Congress can also make an equitable apportionment, as it did by the Boulder Canyon Project Act for Arizona, California, and Nevada’s shares of Colorado River water.
Why would states favor negotiation a compact?
The states can fashion specific enforceable provisions to share the water of an interstate stream. A compact avoids the risk of repeated Supreme Court lawsuits to determine each state’s fair share of the water. Ultimately, it creates certainty for the parties.
What does it mean when a water compact allocation between states refers to “beneficial consumptive use”?
Beneficial consumptive use is the amount of water, typically expressed in acre-feet or by percentage, which each state is entitled to use up entirely within its boundaries from the natural supply available in the river system.
Who can enforce a water compact?
A state can file suit in the Supreme Court for enforcement of its rights under the compact. A state may seek an injunction to require a non-complying state to abide by the provisions of the compact and to provide repayment of water lost to the state and/or monetary compensation. Some compacts establish a commission that has administrative authority.
What is the effect of a compact on water-rights owners within a state?
The state has a duty to regulate water rights within its own state to avoid breaching the rights of another state.
Has the state of Colorado ever had to pay another state for breach of a compact?
Colorado, as a result of the U.S. Supreme Court’s 1995 decision, paid Kansas about $34.7 million for breach of the Arkansas River Compact.
Can a state withdraw from or amend a compact?
Compacts typically prohibit unilateral withdrawal by a state and require unanimous consent of all signatory states as well as Congressional consent for any amendment.
What role do federal reservoirs play in compact operation?
Reservoirs constructed, owned and managed by agencies of the U.S. government are often the most important means for administering the provisions of a compact to achieve its purposes and meet its terms.
Do Indian tribal and federal agency reserved water rights have an equitable apportionment or compact water share?
The U.S. Supreme Court held in its 1963 Arizona v. California decision that its equitable apportionment jurisdiction applies only to suits between states and not to Indian tribes. The court held that the reserved rights of the Colorado River tribes are charged against the compact allocations of the states where those reservations exist. Typically, interstate water compacts contain a provision disclaiming any intent to affect tribal water rights.
How do federal environmental laws come into play?
The Endangered Species Act, the Clean Water Act, the National Environmental Policy Act, the Federal Land Policy and Management Act, the National Forest Management Act, and other federal land and environmental laws can impact the construction and operation of federal and non-federal reservoirs as well as direct flow diversions that use a portion of a state’s compact-apportioned water.
Arkansas River Compact of 1948
The compact protects all water uses in existence in 1949 and apportions the benefits of John Martin Reservoir between Colorado and Kansas.
La Plata River Compact
This compact apportions the waters of the La Plata River between Colorado and New Mexico, by allowing the unrestricted right to use waters by both states between December 1 and February 15 and allocating specific flows and deliveries between February 16 and November 30.
Animas-La Plata Compact
This compact provides agreements that allow for the operation of the Animas-La Plata Project.
These compacts allow Colorado to use up to 3.85 million acre feet (MAF), provided the Upper Basin does not cause the flow at Lee Ferry, Ariz., to fall below 75 MAF, based on a 10-year running average (7.5 MAF/year). To learn more, see the Coordinated Long Range Operating Criteria. Learn about Compact Administration in this presentation.
Republican River Compact
Colorado’s consumptive uses are limited to 54,000 AF, plus all uses from Frenchman and Red Willow Creeks.
Rio Grande Compact
The compact establishes Colorado’s obligation to ensure deliveries of water at the New Mexico state line and New Mexico’s obligation to assure deliveries of water at the Elephant Butte Reservoir, with some allowance for credit and debit accounts.
Costilla Creek Compact
The compact establishes uses, allocations and administration of the waters of Costilla Creek in Colorado and New Mexico.
South Platte River Compact
The compact establishes Colorado’s and Nebraska’s rights to use water in Lodgepole Creek and the South Platte River.