Water Export: Is it Legal Yet?
| Publication year | 1995 |
| Pages | 817 |
| Citation | Vol. 24 No. 4 Pg. 817 |
1995, April, Pg. 817. Water Export: Is it Legal Yet?
The debate about whether water rights can be exported outside the state of Colorado continues to rankle the thirsty Front Range and to intrigue the Western Slope. At stake is the potential for a boon of riches from downstream states, as well as the risk of ruin to this state's protections under the Colorado River Compact.
The U.S. Constitution bars a state from giving its own residents a preferred right, over out-of-state consumers, to water within its border, except in times of shortage. Colorado law purports to restrict water export in other times as well.
The apparent conflict between Colorado's statutory restriction on export and the federal opposition to such a burden on interstate commerce has not yet been resolved judicially. This article addresses the tension between the federal law and the state policy, including the undertow of political pressure.
The Commerce Clause(fn1) authorizes Congress to regulate interstate commerce, including natural resources. Even in the absence of federal legislation, the Commerce Clause contains an implied limitation on the power of the states to interfere with or impose burdens on interstate commerce.
The U.S. Supreme Court has held that a state is barred from giving its own residents "a preferred right of access, over out-of-state consumers, to natural resources located within its borders."(fn2) Water has been held to be an article of commerce, thus subject to federal control and largely free of state attempts to restrict its export.(fn3)
In times of water shortage, however, the benefit of state law that protects one's own citizens has been held to outweigh the burden imposed on interstate commerce.(fn4) If the "shortage" is typical of the state's arid climate, such as in New Mexico, one federal district court has held that the burden of an export ban on interstate commerce outweighs the benefit to the state. Consequently, a New Mexico statute banning water exports was struck down as economic protectionism despite its purported underpinnings in the state's actual water scarcity.(fn5)
The first opportunity to export Colorado water could be derived from another federal authority not applicable to the general populace. The Winters doctrine holds that any Native American land reservation also carries an implied reservation of sufficient water to fulfill reservation purposes. With enviable priority dates and far underused, these water rights are predicted to affect existing state allocations dramatically.(fn6) Left out of the historic interstate compact allocations, tribes are now examining water export as a means of moving ahead.(fn7)
From 1917 until 1983, Colorado law basically banned water export. Since the U.S. Supreme Court declared water an article of commerce twelve years ago, Colorado's statute has virtually prohibited water export anyway, on the ground that export is an anathema to its privileges under interstate compacts.(fn8) Since then, no export proposal is known to have survived beyond the paper stage.(fn9)
Colorado statute now prohibits water export unless one of three compact-related conditions is satisfied: (1) a compact expressly authorizes export; (2) a downstream state is debited for its receipt under any applicable compact; or (3) Colorado's ability to meet compact commitments to downstream states is not impaired.(fn10)
The first criterion is difficult to meet because no current compact on waters from Colorado is believed to make such a statement. The second criterion limits exports to that amount already apportioned to downstream states. If the amount already apportioned were sufficient for downstream states, there would probably be little demand for the purchase or lease of additional Colorado water. The third criterion is somewhat ambiguous, but may be directed to situations where the export is to states not a party to the compact.
State authority to protect water rights is confirmed in two additional, largely discretionary conditions, which prohibit export that is "inconsistent...
To continue reading
Request your trial