Interstate Water Allocation in Alabama, Florida, and Georgia: Edited by Jeffrey L. Jordan and Aaron T. Wolf

Although the title of this book implies that it focuses only on three states, the scope extends beyond the southern territory of the United States. The sixth chapter, Interstate River Compacts of the West, by Lynne Y. Lewis discusses the compacts in the southwest, explains the water allocation issues that the compacts attempted to resolve, and offers lessons learned as a consequence of these negotiations.

Of the 21 compacts existing between 17 western states, the oldest, the Colorado River Compact, became law in 1922. All compacts illustrated two methods of allocation, fix amounts and percentages. "Percentages may be based on the average annual 'virgin water supply' in a basin or the stream flow (percentage-of-flow formula), measured in cubic feet per second at a specific place and time or over a specific period. Still others use a combination of the first two methods or incorporate other features and considerations, such as time of year, reservoir releases, and 'water emergencies'" (pp. 102-103). The allocation mechanism used for both methods--the rules of timing, measurement, and amount--depends on the specific geographic conditions and social situations.

Concerning the Arkansas River, Colorado and Kansas have litigated the use of the river's waters since beginning of the twentieth century. As the river's headwaters originate in Leadville, Colorado and flows through Colorado and into Kansas, Kansas has asserted that Colorado irrigators have exceeded their portion of its use. Four cases have ensued: Kansas v. Colorado (1902), Kansas v. Colorado (1907), Colorado v. Kansas (1943), and Kansas v. Colorado (1995). Kansas in 1902 and 1907 failed to prove damages by irrigation in Colorado. The Supreme Court, desiring to prevent future litigation, urged the two states to form a compact on the river.

According to Lewis, the Arkansas Compact 1949 had two objectives: "(1) to settle existing disputes and prevent future controversies over Arkansas River water; and (2) to equitably apportion Arkansas River water as well as the benefits from John Martin Reservoir" (p. 114). The actual document addressed depletions and apportionment. "Article IV of the compact contains a material depletion clause that prohibits future developments that would materially deplete the usable flow of the river. Article V apportions the water in John Martin Reservoir and specifies operating standards for the reservoir" (p. 114).

After the signing of the Compact, the population of the State of Colorado grew as did the number of alluvial wells in the basin, from 121 to 2,000 in 1985. To ascertain whether Colorado violated the depletion clause of the Compact, Kansas initiated a study in 1983. Despite attempts to negotiate, Kansas in 1985 sued Colorado, "claiming that increases in groundwater pumping by southeastern Colorado irrigators after the compact was put into place caused a significant decline in usable state-line water flows" (p. 114).

The Supreme Court ruled against Colorado (Kansas v. Colorado 1995). The court found the following, "that Colorado under delivered 328,000 acre-feet of Arkansas River water to Kansas between 1950 and 1985 (Robbin 1996) and an additional 100,000 acre-feet between 1986 and 1996 (Naeser and Smith)" (pp. 114-115). As a remedy, Colorado farmers could pump if they had augmentation water and the State of Colorado would pay Kansas financial damages for 45 years of over pumping--"the damage phase began in 1998" (p. 115). In 2001 the Supreme Court awarded Kansas, in Kansas v. Colorado, monetary recompense for crop loss. From 2002 to 2004 the two states fought over the amount of monetary damages, from Kansas' original claim of $300 million to the final settlement of $29 million, the amount, according to Lewis, approximately of the total litigation.

Outputs of the cases included complex hydrologic models and monitoring by both states on surface and ground water, pumping levels, depletions, and augmentation. The cases resolved allocation issues, however, water quality questions remain. Lewis noted, "as a result of dependence of flood irrigation by Colorado irrigators, the Middle Arkansas River is the saltiest stream of its size in the United States" (p. 115). Kansas farmers could seek awards for damages in the future because of the poor quality of water for their crops. Headwater quality deteriorates as it gets used and flows down stream, threatening not only farmers but also municipal, industrial, and recreational uses and fish and wildlife. The Compact does not consider water quality.

Current water quality issues in the Arkansas basin encompass salinity in the Arkansas River and sulfate levels and groundwater contamination in the Arkansas basin. Sulfate levels exceed the Environmental Protection Agency's recommended levels. Contaminated water threatens the High Plains Aquifer in southwestern Kansas, which contains the Ogallala and alluvial aquifers. Common practice exacerbates water quality, "one of the sources of replacement water used to satisfy the compact dispute is Colorado Springs effluent water. Colorado Springs exchanges transmountain return flows for native diversions" (p. 116).

The history of the Arkansas River Compact 1949 emphasized the need for adaptable allocation rules, the importance of technical tools to monitor agreements, and the importance of quality as well as quantity considerations.