New York Water Law
Lake and clouds
      Blog Home      Index of Posts      About the NYS DEC      About the DRBC      About the SRBC

January 10, 2011

US Supreme Court to Hear Water Compact Arguments Today

In a case that may have implications for the interpretation of other interstate water compacts, the U.S. Supreme Court will hear oral arguments today on Montana’s claim that Wyoming is violating the provisions of the Yellowstone River Compact. Among the improper uses alleged by Montana is the permitting of more than 20,000 coal bed methane wells in the Powder River Basin and a smaller number in the Tongue River Basin.

Both parties rely on a plain reading of the relevant sections of the Compact but come to incompatible interpretations. Montana argues that the Compact’s stated purpose of preventing controversy is undermined if upstream appropriators can use more efficient irrigation methods to reduce return flows at the downstream appropriators’ expense. In response, Wyoming contends that its usage does not conflict with any limits set forth in the Compact, that Montana’s interpretation creates an amorphous and impractical limitation the drafters never intended, and that public policy supports a reading which allows Wyoming to reap the benefits of increased efficiency, especially in dry western regions. While currently the controversy only involves the Tongue and Powder Rivers, the Court’s decision here may impact other rivers regulated by this Compact.

The Compact has a three-tiered framework: The first tier adopts the doctrine of “prior appropriation,” which generally holds that the first people to put water to a beneficial use retain a continuing right to the water. The second tier of the Compact concerns the “unused and unapportioned” waters of interstate tributaries, and permits each state to divert amounts of water to supplement first-tier appropriation rights. Finally, the third tier of the Compact gives each state a specified percentage of any remaining “unused and unapportioned” water, the percentages to be calculated annually.

Cornell's Legal Information Institute reports that the Special Master appointed by the Court concluded that Montana has asserted valid claims, but has recommended that the Court deny Montana’s claim that Wyoming’s use of improved irrigation techniques violates the Compact, and has further recommended that Montana show that it lacks an intrastate remedy before calling on Wyoming to adjust usage.

Posted by Rachel Treichler at 01/10/11 09:52 AM

 

 

Copyright 2013, Rachel Treichler

 

   


About NY Water Law

New York Water Law covers legal developments relating to water in New York and in jurisdictions that may be influential in New York. The author, Rachel Treichler, practices law in the Finger Lakes region.
Contact the Author
Law Office of Rachel Treichler

Search NY Water Law

Enter search terms:
Click to read our RSS feed
Enter email address to receive notices of new content delivered by FeedBurner:

Index of Posts

Index of Posts by Month

Water Law Links

Acequias and Adjudication
Aguanomics
American Water Resources
AquaLog
Arizona Waterblogged
Bluedaze Blog
CELP
Circle of Blue
Coyote Gulch
Croton Watershed Coalition
E&E Law Monitor
Elizabeth Royte Notes
ESA Blawg
Great Lakes Law Blog
Great Lakes on the Ground
Green Blawg
International Water Law Blog
Lake Scientist
Lakeside Views
Law of the Land Blog
Legal Planet
Marcellus Effect Blog
NRDC Switchboard
NY Water Resources Institute
Oklahoma Water Law
Ohio Environ. Law Blog
Pace GreenLaw
Rancho Los Malulos
Steven Solomon's Water Blog
SPR Environmental Law Blog
The Reef Tank
Thirsty in Suburbia
NYT Toxic Waters Series
Water Law Blog
Water Sustainability Project
Water Wiki
Watercrunch
Watering the Desert
Watershed Post
WaterWired
WesternWaterBlog

 

[Valid RSS]
















This blog is published for educational purposes only. The matters discussed in the blog are general
in nature and are incomplete descriptions of the law. Nothing in this blog constitutes legal advice or an offer of legal advice.
You should contact your attorney to obtain advice with respect to any particular issue or problem.