Adam Webster is a PhD student at the Adelaide Law School and a 2012 Fulbright South Australia Scholar. He shares his experiences as a visiting scholar in the United States at the University of Colorado and the University of Arizona.
I am a PhD candidate at the Adelaide Law School and was one of two winners of a 2012 Fulbright South Australia Scholarship. My PhD research examines the rights of the States of Australia to water from rivers that flow through more than one State. I am currently spending 10 months in the United States for the purpose of investigating how interstate water disputes have been resolved in the United States, and considering whether these approaches can be applied in Australia. In particular, I am interested in the role that the United States Supreme Court has played in settling interstate water disputes.
Intrastate water regulation in the United States
One of the interesting features of the development of water law in the United States is that the States in the western region of the US have taken a very different approach to intrastate water allocation compared to the eastern States. Broadly speaking, the courts in the States in the east adopted an approach that attempted to preserve the natural flow of the river, because when the relevant laws were developed (in the nineteenth century) the flow of the water was used to operate mills on the banks of rivers and streams.
In the drier western States water use was driven largely by mining and irrigation – uses that required water to be diverted from the river, thereby depleting its flow. Consequently, in the west, rights to water were generally granted on a first-in-time basis, irrespective of how that water use might disturb the natural flow of the river for subsequent downstream users (so long as the water was being put to use and not wasted). Courts in the west expressly acknowledged the need for water users to be allowed to divert water with the confidence that subsequent users downstream would not be able to challenge their claim. The basis for the development of the common law in this way was that the different environmental conditions and water uses in the west dictated a different approach.
Interstate water conflicts in the United States
The fact that different approaches to intrastate water allocation were adopted only further complicated how water from interstate rivers, such as the Colorado River and Arkansas River, was to be shared between States. While many interstate water disputes have been solved by the States entering into a compact (or what we might refer to in Australia as an ‘intergovernmental agreement’), some disputes have not been able to be resolved in this way and have been litigated by States in the United States Supreme Court. The first interstate river dispute – Kansas v Colorado – was first heard by the Supreme Court in 1902 and since that case the Court has heard a number of interstate river disputes.
The United States Constitution does not deal expressly with interstate water rights; however, the Supreme Court has held that there is an ‘equality of right’ between States and, despite the fact that there is no uniform common law across the United States, the Court has held that there must be an ‘interstate common law’ – sometimes referred to as ‘federal common law’ – applicable to interstate river cases. In a series of cases during the twentieth century the Supreme Court developed the ‘equitable apportionment doctrine’ for allocating water from interstate rivers. The Court has explained that the common law doctrine of equitable apportionment doctrine must remain flexible to take into account the unique characteristics of each interstate dispute. However, the key factors have been identified as (see, for example, Nebraska v Wyoming (1945) 325 US 589, 618):
- Physical and climatic conditions;
- The consumptive use of water in the sections of the river;
- The character and rate of return flows;
- The extent of established uses;
- The availability of storage water;
- The practical effect of wasteful uses on downstream areas; and
- The damage to upstream areas as compared to the benefits to downstream areas of a limitation is imposed on the former.
The last of these factors requires the Court to engage (at least in part) in a cost-benefit analysis in determining whether the upstream State is permitted to withhold a greater amount of water.
Unsurprisingly, the evidence in an interstate water dispute can be lengthy and complex. Consequently, the US Supreme Court does not hear the evidence, but instead appoints a Special Master to hear the case and make findings and a final recommendation. The hearings can involve hundreds of documents and thousands of pages of testimony from experts. For example, in Arizona v California – a dispute between a number of the western States over the Colorado River – the trial before the Master lasted for just over two years, the evidence of 340 witnesses was put before the Master, thousands of exhibits were tendered, and the transcript of the proceedings was over 25,000 pages. With such a large volume of evidence it is unsurprising that the report of the Master was over 400 pages.
Sharing water from interstate rivers in Australia
From an Australian perspective, the interesting question is whether the High Court of Australia could adopt a similar approach in resolving and future disputes over the waters of the River Murray by developing or modifying the common law. Could the High Court find similar principles of ‘equality between States’ in the Australian Constitution that might support the modification of the common law? If such a principle can’t be found within the text or structure of the Constitution, could the common law in Australia still be developed in such a way as to create an interstate water right?
The creation of an interstate water right at common law in Australia would, in effect, place a limitation on the legislative power of the States in circumstances where such a limit is not provided for in the Constitution. This raises interesting questions about the extent to which the Constitution may influence the development of the common law and the development of the common law in a way which is consistent with the Constitution.
Whether the High Court is required to consider these questions is now largely dependent on the acceptance by the States (and other interested parties) of the Murray-Darling Basin Plan. These issues could only come before the High Court if the validity of the plan is challenged. However, as the United States Supreme Court has noted in the dealing with interstate river disputes in that country, litigation should only be seen as a last resort and resolution of these matters by compact (or intergovernmental agreement) is preferable. Perhaps this is the first lesson that Australian States can learn from the United States interstate water disputes.