Archive for the 'compacts' Category

Nov 11 2010

MT/WY: States prepare for SCOTUS

On January 10, Montana Attorney General Steve Bullock will defend what Montana argues is it’s share of the water that flows into the state from Wyoming in an argument before the United States Supreme Court.

The argument will resolve a long-running dispute between the two states under the 1950 Yellowstone River Compact. The issue before the nation’s highest court is whether Wyoming irrigators with pre-1950 rights can change their irrigation methods and, by doing so, decrease the amount of water that is available for uses in Montana that predate the Compact. Montana’s position is that the Compact obligates Wyoming to deliver a certain quantity of water under specified water supply conditions, and that quantity cannot be reduced by individual water users in Wyoming who change their irrigation practices.

The Supreme Court earlier appointed a fact-finder, known as a “Special Master,” to consider Wyoming’s motion to dismiss Montana’s Complaint and to conduct further hearings as needed. On February 10, 2010, the Special Master denied Wyoming’s motion to dismiss with respect to the majority of Montana’s claim. But, the Special Master recommended that the dismissal motion be granted in relation to Montana’s complaint that certain Wyoming water users with early rights were taking water that rightfully belonged to Montana. Montana argued they were doing this by adopting new irrigation techniques that decreased the amount of leftover water that flowed into our state.

In July, Montana filed an exception and brief (PDF) to the Special Master’s ruling, insofar as it limits Montana’s ability to enforce the Compact under certain circumstances. The Court today set the date to hear arguments on this exception.

“Although Wyoming has historically disputed its obligations under the Compact, court officials have generally sided with Montana,” Bullock said. “On this one remaining issue, we believe that Wyoming — in violation of the Compact — is taking water from Montana users who have long-standing rights. We are pleased that the Supreme Court has agreed to hear arguments and we look forward to making our case in January.”

The Yellowstone River Compact protects pre-1950 water uses in Montana from later uses in Wyoming. In times of water shortage, this means that Wyoming must curtail water uses that began after the Compact was ratified whenever holders of pre-1950 water rights in Montana are not receiving sufficient water to satisfy their uses.

In his February 2010 First Interim Report of the Special Master (PDF), Special Master Barton Thompson, a professor at the Stanford University Law School, declared that the Yellowstone River Compact generally protects pre-1950 water users in Montana from uses in Wyoming that began after the Compact was ratified.

The Special Master’s opinion also said that:

* Montana may sue Wyoming to enforce those water rights, and
* Montana was correct in claiming that groundwater pumping — primarily associated with coalbed methane production in the Tongue and Powder River basins — may violate the Compact to the extent it is hydrologically interconnected to the surface channels of the Yellowstone River and its tributaries.

The case began in January 2007, when the Montana Department of Justice sued the State of Wyoming before the U.S. Supreme Court in an effort to protect the water rights allocated to Montana under the Yellowstone River Compact. Montana, Wyoming and North Dakota entered into the compact in December 1950, each state’s legislature ratified it and the U.S. Congress consented to the compact in 1951.

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Sep 02 2010

CO: Gov candidate takes interstate hard line

Published by under Colorado,compacts

Republican gubernatorial candidate Dan Maes startled quite a few people at the late-August Colorado Water Congress annual meeting by declaring that while he has plenty to learn about water policy, “I have a pretty simple policy on water so far: If it starts in Colorado, it’s our water.”

He said that he would support construction of a string of new reservoirs to keep the water in the state.

That took aback a number of people at and outside the conference, noting that Colorado has a raft of signed compacts with other states – involving the Colorado and Arkansas rivers, among others – which are legally binding. At least 11 states make some use of water flowing out of Colorado; the state is a party to nine interstate compacts.

It also could upend the state’s water rights prior appropriation system. One attorney was quoted as saying Maes’ proposal “amounts to a taking of private property.”

Others cautioned that such a move could quickly make the state a defendant before the U.S. Supreme Court.

Denver Mayor and Democratic gubernatorial candidate John Hickenlooper also spoke at the conference, and was careful to say that while Denver has some senior rights, the water in a larger sense is the state’s, and the state as a whole has to be fairly served.

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Jun 03 2009

MT: Yellowstone compact covers flows

A Montana legal case against the state of Wyoming over its draws on the Tongue and Powder rivers (tributaries of the Yellowstone) may have been resolved, by special master decision, for Montana.

The water involved may be covered by the 1950 Yellowstone compact between the states. Montana said it was; Wyoming said it wasn’t.

Master Barton Thompson of Stanford University decided on June 2 that Montana was right, the water was covered. [see KPAX-TV, June 3]

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Feb 19 2008

MT/WY: Yellowstone deal to SCOTUS

“We’re glad the U.S. Supreme Court has agreed to hear our case,” said Governor Brian Schweitzer. “Water is always one of our most valuable resources, especially in Eastern Montana. Wyoming has been shortchanging us on water for decades. Now I look forward to a fair hearing.”
In the 2007 legislative session, Governor Schweitzer requested and the legislature approved $3 million for litigation of the provisions of the Yellowstone River Compact.
Montana sued Wyoming in an effort to enforce the provisions of the compact last year. Montana, Wyoming and North Dakota entered into the compact in December 1950, and the states’ legislatures ratified it. The U.S. Congress consented to the compact in October 1951.
The complaint asked the court to order Wyoming to deliver more water in the Tongue and Powder Rivers according to the compact and award the State of Montana damages, costs and other relief.
Source: Montana Governor Brian Schweitzer, February 19. Contact:?Sarah Elliott?406-444-9725

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Feb 08 2008

KS: More Republican dispute

Kansas officials today requested a quick resolution to the ongoing battle with Nebraska over its undisputed overuse of waters from the Republican River.
At the same time, Attorney General Steve Six communicated with Nebraska Attorney General Jon Bruning that Kansas is seeking “real solutions” and that “we expect concrete tangible actions by Nebraska to cure its overuse of Republican River water.”
“Kansas has been patient in waiting for Nebraska to take concrete action,” Six said. “Nebraska’s failure to comply with the Compact and 2002 Settlement is hurting Kansas farmers and communities. I am committed to protecting Kansas resources and ensuring our state receives our fair share of water.”
Kansas’ top water official asked the Republican River Compact Administration to consider the dispute between Kansas and Nebraska as a “fast-track issue” under the compact’s dispute resolution procedure. The compact administration must address the issue within 30 days unless the states agree otherwise.
“Nebraska has not held up its end of the agreement and has consistently used more that its share of the water,” Six said. “Our goal is to get Kansas farmers and communities the water they need and deserve.”
After working with Nebraska for many years to comply with the agreement, Kansas demanded in December 2007 that Nebraska take immediate action shutting down pumps and paying damages for water overuse.
Source: Kansas Attorney General Steven N. Six, February 8.

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Feb 01 2008

KS: Officials on Republican compliance

Lead water and agriculture officials from Colorado and Kansas met Jan. 28 in Topeka, Kan., to discuss compliance activities relevant to the Republican River Compact.
The meeting was organized by Colorado’s Department of Natural Resources Executive Director Harris Sherman and Commissioner of Agriculture John Stulp with Kansas Secretary of Agriculture Adrian Polansky and Secretary of Wildlife and Parks Mike Hayden. The meeting was to discuss strategies to address Colorado’s current and future compliance with the Republican River Compact.
The Republican River is an interstate river system that provides water for irrigation, drinking water, recreation and other beneficial uses. It is governed by a 1943 interstate compact between Colorado, Kansas and Nebraska that allocates the basin’s water supply. A 2000 U.S. Supreme Court decision determined that groundwater pumping, to the extent that it reduces surface flow in the river, must be accounted for under the Republican River Compact. Each state is required to keep its use within its allocation.
The meeting began by reviewing compact compliance requirements and actions being taken or contemplated by Colorado. Both states agreed to seek a solution that would ensure that Colorado will meet its obligations under the compact, while minimizing any adverse impact on, and enhancing if possible, the social, economic and recreational benefits the river provides for the rural communities in the Republican River basin.
Both states recognize the importance and value of working together in an informal environment in order to avoid or minimize the need for formal enforcement proceedings.
Source: Kansas Department of Agriculture. January30. Contact:?Lisa Taylor?(785) 296-2653

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Oct 25 2007

Colorado Compact rules offered

The Colorado River District Board of Directors believes it is important for the State of Colorado to understand the risks and limits regarding how much water can be developed in the Colorado River system. The Colorado River District is particularly concerned about the risk of future curtailment of water use under the 1922 and 1948 Colorado River Compacts that could be created through the development of new, substantial junior water rights. The Colorado River District believes these limits and these risks must be better defined and better understood before the State Engineer adopts rules on how to administer a compact curtailment order.
These issues loom large as proposals for additional transmountain diversions, energy development, population growth, climate change, and other demands strain existing water supplies.
At its October 16-17, 2007, quarterly board meeting, the Colorado River District Board of Directors passed a motion that cautions the State about proceeding with rules without first studying how much water can be safely developed under the 1922 and 1948 Colorado River Compacts without an unreasonable risk of tripping a compact curtailment order. This study is just beginning under the direction of the Colorado Water Conservation Board pursuant to Senate Bill 2007-122 passed by the 2007 General Assembly.
Colorado’s compact agreements with other Colorado River Basin states require specific deliveries of water to downstream states. The Colorado River has never been under compact administration. However, compact administration and litigation elsewhere in the state, notably in the Rio Grande, Republican, and Arkansas River Basins, have caused substantial hardship and resulted in the dry-up of agricultural lands.
The Colorado River District asserts that the most important role for the State is to work proactively to avoid a compact curtailment and to work with water users to develop a plan to mitigate the adverse impacts of an unavoidable curtailment. Only then should rules and regulations be developed. This sequence ensures a more orderly and less contentious rulemaking process.
The text of the motion:
“It is premature and distracting for the State Engineer’s Office to promulgate rules and regulations to administer water rights in the event curtailment is necessary under the 1922 and 1948 Colorado River compacts. It is first necessary to complete the Senate Bill 07-122 Colorado River water availability study and to evaluate the available supply and associated risks of a compact curtailment. More importantly, the state’s policy priorities should be to avoid a compact curtailment and to work with water users to develop a plan to mitigate the adverse impacts of a curtailment. Rules and regulations for an unavoidable curtailment can then be developed in a more orderly and equitable manner without tremendous controversy.”

Contact: Jim Pokrandt,?Communications and Education; Colorado River District?(970) 945-8522 x 236?Cell: (970) 319-1807? October17 Colorado River Water Conservation District

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Sep 18 2007

IN: Reviewing lakes compact plan

As Indiana gears up to consider adopting the Great Lakes Compact, the public is urged to attend a September 27 public meeting in South Bend to learn how the compact will secure the waters and health of the Great Lakes.
The meeting is one of three scheduled around the state next week as the Indiana Legislature prepares to consider a ratification proposal by the state Department of Natural Resources in 2008. Minnesota and Illinois were the first states to adopt the compact earlier this year, and legislatures in the other Great Lakes states are now in varying stages of taking up the legislation.
Scheduled for 6 p.m.-7:30 p.m. at the main branch of the St. Joseph County Public Library, the South Bend meeting is sponsored by the Alliance in conjunction with a half dozen other conservation and public interest groups. DNR representatives will also be on hand to answer questions.
Signed by the governors of the eight Great Lakes states in December 2005, the Great Lakes-St. Lawrence Basin Water Resources Compact sets forth a set of uniform, binding water use standards aimed at protecting the waters of the Great Lakes – a vast yet vulnerable system that supplies 40 million people with clean drinking water.
More about the Alliance for the Great Lakes is online at

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