Muddy Water Blues: How the Murky Doctrine of Equitable Apportionment Should Be Refined

• Author: Bernadette R. Nelson
• Position: J.D. Candidate, The University of Iowa College of Law, 2020; B.S., Georgetown University Walsh School of Foreign Service, 2014
• Pages: 1827-1855

1827

Muddy Water Blues: How the Murky

Doctrine of Equitable Apportionment

Should Be Refined

Bernadette R. Nelson

ABSTRACT: The equitable apportionment doctrine is the judicial

apportionment remedy for interstate water conflicts. It has undergone

refinement in the years since the United States Supreme Court established it

in 1907. However, as this Note will argue, the current landscape of the

equitable apportionment doctrine proves to be problematic and ill-equipped to

manage increasingly technical and party-heavy disputes over water between

states. This Note presents a background about the development of the differing

water rights regimes in the United States. Additionally, it will explain the

equitable apportionment doctrine by examining the pivotal Supreme Court

cases from which the doctrine is derived. This Note will also demonstrate how

the equitable apportionment doctrine has become problematic in its current

state. Finally, this Note will propose a bifurcated litigation process to mitigate

the negative consequences of the problematic equitable apportionment doctrine

as it currently stands.

I. INTRODUCTION ........................................................................... 1828

II. BACKGROUND ............................................................................. 1830

A. EASTERN STATES: RIPARIAN WATER RIGHTS DOCTRINE .......... 1832

B. WESTERN STATES: DOCTRINE OF PRIOR APPROPRIATION ......... 1834

C. EQUITABLE APPORTIONMENT AND INTERSTATE WATER

CONFLICT: HISTORY AND PRECEDENT ..................................... 1837

1. The Mouth of the River: The Development of

the Equitable Apportionment Doctrine and

Notable Precedential Cases ........................................ 1839

 J.D. Candidate, The University of Iowa College of Law, 2020; B.S., Georgetown

University Walsh School of Foreign Service, 2014. Thank you to my grandfather Albert “Boots”

Nelson for invaluable discussions about water and water law in the West, guidance and comments

on this Note, and for instilling in me a deep respect for our most precious resource. Thank you

also to Professor Jonathan C. Carlson, Dr. Albert Russell Nelson, Professor Christopher Rossi,

Dominic Azzopardi, Luke Cole, Emma Russ, and Derek Miller for their valuable comments an d

editorial suggestions for this piece.

1828 IOWA LAW REVIEW [Vol. 105:1827

2. A Fork In the River: Colorado v. New Mexico and Its

Ramifications for the Equitable Apportionment

Doctrine ....................................................................... 1843

III.THE EQUITABLE APPORTIONMENT DOCTRINE HAS BROKEN

THROUGH ITS BANKS: PROBLEMS WITH THE COURT’S

CURRENT APPLICATION OF THE EQUITABLE

APPORTIONMENT DOCTRINE ...................................................... 1846

A.MUDDY WATERS: WHAT IS A BENEFIT? WHAT IS A WASTE? ...... 1847

B.RED FISH, BLUE FISH: THE TREND OF SUBJECTIVITY IN

APPLYING THE EQUITABLE APPORTIONMENT DOCTRINE.......... 1849

C.FUTURE CHALLENGES TO INTERSTATE WATER CONFLICT ........ 1850

IV. BIFURCATING INTERSTATE WATER CONFLICT LITIGATION: A

NEW ORGANIZATION FOR LITIGATION OF INTERSTATE

WATER CONFLICTS ...................................................................... 1851

V. CONCLUSION .............................................................................. 1855

I. INTRODUCTION

“Whiskey is for Drinking, Water is for Fighting!”1 These words ring just as

true today as they did when Mark Twain uttered them over 100 years ago.

Water is the essential resource for human survival. Consequently, it is no

surprise that water is the topic of much conflict in the United States2 and

across the globe.3 In the United States, large rivers like the Missouri or the

Mississippi have created the metropolitan areas in which we live and the

industries upon which communities rely. Rivers like the Colorado have

spawned years-long litigation and prolonged conflict between neighboring

1. U.S. Dep’t of the Interior Bureau of Reclamation, “Whiskey is for Drinking, Water is for Fighting!,”

RECLAMATION, https://www.usbr.gov/lc/phoenix/AZ100/1950/whiskey_drinking_water_fighting.html

[https://perma.cc/V975-CVJ7].

2. See Denise D. Fort, Water and Population in the American West, in 107 YALE SCH. OF FORESTRY &

ENVTL. STUDIES, HUMAN POPULATION AND FRESHWATER RES.: U.S. CASES AND INT’L PERSPECTIVES 17,

17–19 (Karin M. Krchnak ed., 2002) (“Increased water extraction has resulted in the loss of species

across the western landscape. Groundwater mining is a looming crisis in the West; however, as an issue

it is hidden from public consciousness and typically solved by costly water projects. The movement

toward sustainability will require a reorientation of public policies to recognize the need to balance

human uses with ecological functions, and to incorporate the true costs of water into decision-

making.”). See generally MELISSA S. KEARNEY ET AL., THE HAMILTON PROJECT, IN TIMES OF DROUGHT:

NINE ECONOMIC FACTS ABOUT WATER IN THE UNITED STATES (2014), https://www.brookings.edu/wp-

content/uploads/2016/06/nineeconomicfactsaboutuswaterkearneyharris.pdf [https://perma.cc/L

F83-ET7E] (providing a report on current and future projections for drought and its economic,

environmental and human consequences in the United States).

3. Adelphi, Editor’s Pick: 10 Violent Water Conflicts, RELIEFWEB (Aug. 21, 2017), https://

reliefweb.int/report/world/editor-s-pick-10-violent-water-conflicts [https://perma.cc/2LTD-Y8BX].