The Vermejo River -- which originates in southern Colorado but
is located primarily in New Mexico -- is at present fully
appropriated by users in New Mexico. Colorado seeks an equitable
apportionment of the river's water in order to divert water for
proposed uses. The Special Master, after a trial, recommended in
his report that Colorado be permitted a diversion of 4,000
acre-feet per year. The Special Master recognized that strict
application of the rule of prior appropriation would not permit any
diversion. In applying the principle of equitable apportionment,
however, he did not focus exclusively on the rule of priority, but
apparently rested his recommendation on the alternative grounds
that New Mexico could compensate for some or all of the Colorado
diversion through reasonable water conservation measures, and that
the injury, if any, to New Mexico would be outweighed by the
benefit to Colorado from the diversion. New Mexico filed exceptions
to the Special Master's report.
Held:
1. The flexible principle of equitable apportionment applies to
a State's claim to divert water for future uses, and the criteria
relied upon by the Special Master comport with this Court's prior
cases. Pp. 183188.
(a) When, as in this case, both States recognize the doctrine of
prior appropriation, priority becomes the guiding principle, but
not the sole criterion, in determining an equitable apportionment.
Pp.
459 U. S.
183-184.
(b) While the equities supporting the protection of established,
senior uses are substantial, it is also appropriate to consider
additional factors relevant to a just apportionment, such as the
conservation measures available to both States here and the balance
of harms and benefits to the States that might result from the
diversion sought by Colorado. Pp.
459 U. S.
184-187.
(c) A State seeking a diversion for future uses must demonstrate
by clear and convincing evidence that the benefits of the diversion
substantially outweigh the harm that might result. Pp.
459 U. S.
187-188.
2. However, the Special Master's report does not contain
sufficient factual findings to enable this Court to assess the
correctness of his application of the principle of equitable
apportionment to the facts of this
Page 459 U. S. 177
case. Accordingly, this Court remands for additional findings,
including specific findings relating to the Special Master's
reliance on the factors of the availability of conservation
measures and the weighing of the harms and benefits that would
result from the diversion. Pp.
459 U. S.
189-190.
Remanded for further findings.
MARSHALL, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, REHNQUIST, and STEVENS,
JJ., joined. BURGER, C.J., filed a concurring opinion, in which
STEVENS, J., joined,
post, 459 U. S. 190.
O'CONNOR, J., filed an opinion concurring in the judgment, in which
POWELL, J., joined,
post, 459 U. S.
191.
JUSTICE MARSHALL delivered the opinion of the Court.
This case concerns the proper apportionment between New Mexico
and Colorado of the water of an interstate river. The water of the
Vermejo River is at present fully appropriated by users in New
Mexico. Colorado seeks to divert water for future uses. Invoking
this Court's original jurisdiction under Art. III, § 2, of the
Constitution, Colorado brought this action for an equitable
apportionment of the water of the Vermejo River. A Special Master
appointed by the Court recommended that Colorado be permitted a
diversion of 4,000 acre-feet per year. The case is before us on New
Mexico's exceptions to the Special Master's report.
Page 459 U. S. 178
I
The Vermejo River is a small, nonnavigable river that originates
in the snow belt of the Rocky Mountains in southern Colorado and
flows southeasterly into New Mexico for a distance of roughly 55
miles before it joins the Canadian River. The major portion of the
river is located in New Mexico. The Colorado portion consists of
three main tributaries that combine to form the Vermejo River
proper approximately one mile below the Colorado-New Mexico border.
At present, there are no uses of the water of the Vermejo River in
Colorado, and no use or diversion has ever been made in Colorado.
In New Mexico, by contrast, farmers and industrial users have
diverted water from the Vermejo for many years. In 1941, a New
Mexico state court issued a decree apportioning the water of the
Vermejo River among the various New Mexico users. [
Footnote 1]
In 1975, a Colorado corporation, Colorado Fuel and Iron Steel
Corp. (C. F. & I.), obtained in Colorado state court a
conditional right to divert 75 cubic feet per second from the
headwaters of the Vermejo River. [
Footnote 2] C. F. & I. proposed a transmountain
diversion of the water to a tributary of the Purgatoire River in
Colorado to be used for industrial development and other purposes.
Upon learning of this decree, the four principal New Mexico users
-- Phelps Dodge Corp. (Phelps Dodge), Kaiser Steel Corp. (Kaiser
Steel), Vermejo Park Corp. (Vermejo Park), and the Vermejo
Conservancy District (Conservancy District) -- filed suit in the
United States District Court for the District of New Mexico,
seeking to enjoin any diversion by C. F. & I. that would
violate their senior rights. On January 16, 1978, the District
Court enjoined C. F. & I. from diverting any water from the
Vermejo River in derogation of the senior water rights of New
Mexico
Page 459 U. S. 179
users. [
Footnote 3] The
court found that, under the doctrine of prior appropriation, which
both New Mexico and Colorado recognize, [
Footnote 4] the New Mexico users were entitled to have
their needs fully satisfied because their appropriation was prior
in time. C. F. & I. filed a notice of appeal, and the Court of
Appeals for the Tenth Circuit has stayed its proceedings during the
pendency of this case before us.
In June, 1978, Colorado moved for leave to file an original
complaint in this Court. New Mexico opposed the motion. On April
16, 1979, we granted Colorado's motion and appointed
Page 459 U. S. 180
the Honorable Ewing T. Kerr, Senior Judge of the United States
District Court for the District of Wyoming, as Special Master in
this case. 441 U.S. 902. After a lengthy trial involving an
extensive presentation of evidence, the Special Master submitted a
report to the Court on January 9, 1982. The report was accepted for
filing on February 22, 1982. 455 U.S. 932.
The Special Master found that most of the water of the Vermejo
River is consumed by the New Mexico users, and that very little, if
any, reaches the confluence with the Canadian River. He thus
recognized that strict application of the rule of priority would
not permit Colorado any diversion, since the entire available
supply is needed to satisfy the demands of appropriators in New
Mexico with senior rights. Nevertheless, applying the principle of
equitable apportionment established in our prior cases, he
recommended permitting Colorado a transmountain diversion of 4,000
acre-feet [
Footnote 5] of water
per year from the headwaters of the Vermejo River. He stated:
"It is the opinion of the Master that a transmountain diversion
would not materially affect the appropriations granted by New
Mexico for users downstream. A thorough examination of the existing
economies in New Mexico convinces the Master that the injury to New
Mexico, if any, will be more than offset by the benefit to
Colorado."
Report of Special Master 23.
Explaining his conclusion, the Special Master noted that any
injury to New Mexico would be restricted to the Conservancy
District, the user in New Mexico furthest downstream, since there
was sufficient water in the Vermejo River for the three other
principal New Mexico water users, Vermejo
Page 459 U. S. 181
Park, Kaiser Steel, and Phelps Dodge. [
Footnote 6] He further found that the "Vermejo
Conservancy District has never been an economically feasible
operation."
Ibid.
The Special Master's recommendation appears to rest on two
alternative grounds: first, that New Mexico could compensate for
some or all the Colorado diversion through reasonable water
conservation measures, [
Footnote
7] and second, that the injury, if any, to New Mexico would be
outweighed by the benefit to Colorado from the diversion. [
Footnote 8] In its various exceptions
to his report, New Mexico challenges the Special Master's
interpretation of the law of equitable apportionment. New Mexico
maintains that the rule of priority should be strictly applied in
this case to preclude Colorado
Page 459 U. S. 182
from diverting any water from the Vermejo River. New Mexico also
challenges the factual bases of the Special Master's conclusions
that the recommended diversion would not materially affect New
Mexico users, and that any harm to New Mexico would be offset by
the benefits to Colorado. [
Footnote
9]
We conclude that the criteria relied upon by the Special Master
comport with the doctrine of equitable apportionment as it has
evolved in our prior cases. We thus reject New
Page 459 U. S. 183
Mexico's contention that the Special Master was required to
focus exclusively on the rule of priority. However, the report of
the Special Master does not contain sufficient factual findings to
enable us to assess the correctness of the Special Master's
application of the principle of equitable apportionment to the
facts of this case. We therefore remand with instructions to the
Special Master to make further findings of fact.
II
Equitable apportionment is the doctrine of federal common law
that governs disputes between States concerning their rights to use
the water of an interstate stream.
Kansas v. Colorado,
206 U. S. 46,
206 U. S. 98
(1907);
Connecticut v. Massachusetts, 282 U.
S. 660,
282 U. S.
670-671 (1931). It is a flexible doctrine which calls
for "the exercise of an informed judgment on a consideration of
many factors" to secure a "just and equitable" allocation.
Nebraska v. Wyoming, 325 U. S. 589,
325 U. S. 618
(1945). We have stressed that, in arriving at "the delicate
adjustment of interests which must be made,"
ibid., we
must consider all relevant factors, including:
"physical and climatic conditions, the consumptive use of water
in the several 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 if a limitation is imposed on the
former."
Ibid. Our aim is always to secure a just and equitable
apportionment "without quibbling over formulas."
New Jersey v.
New York, 283 U. S. 336,
283 U. S. 343
(1931).
The laws of the contending States concerning intrastate water
disputes are an important consideration governing equitable
apportionment. When, as in this case, both States recognize the
doctrine of prior appropriation, priority becomes
Page 459 U. S. 184
the "guiding principle" in an allocation between competing
States.
Nebraska v. Wyoming, supra, at
325 U. S. 618.
But state law is not controlling. Rather, the just apportionment of
interstate waters is a question of federal law that depends "upon a
consideration of the pertinent laws of the contending States and
all other relevant facts."
Connecticut v.
Massachusetts, supra, at
282 U. S.
670-671 (emphasis added).
In reaching his recommendation, the Special Master did not focus
exclusively on the rule of priority, but considered other factors
such as the efficiency of current uses in New Mexico and the
balance of benefits to Colorado and harm to New Mexico. New Mexico
contends that it is improper to consider these other factors. It
maintains that this Court has strictly applied the rule of priority
when apportioning water between States adhering to the prior
appropriation doctrine, and has departed from that rule only to
protect an existing economy built upon junior appropriations. Since
there is no existing economy in Colorado dependent upon the use of
water from the Vermejo River, New Mexico contends that the rule of
priority is controlling. We disagree with this inflexible
interpretation of the doctrine of equitable apportionment.
Our prior cases clearly establish that equitable apportionment
will protect only those rights to water that are "reasonably
required and applied."
Wyoming v. Colorado, 259 U.
S. 419,
259 U. S. 484
(1922). Especially in those Western States where water is scarce,
"[t]here must be no waste . . . of the
treasure' of a river. .
. . Only diligence and good faith will keep the privilege alive."
Washington v. Oregon, 297 U. S. 517,
297 U. S. 527
(1936). Thus, wasteful or inefficient uses will not be protected.
See ibid.; Nebraska v. Wyoming, supra, at 325 U. S. 618.
Similarly, concededly senior water rights will be deemed forfeited
or substantially diminished where the rights have not been
exercised or asserted with reasonable diligence. Washington v.
Oregon, supra, at 297 U. S.
527-528; Colorado v. Kansas, 320 U.
S. 383, 320 U. S. 394
(1943).
Page 459 U. S. 185
We have invoked equitable apportionment not only to require the
reasonably efficient use of water, but also to impose on States an
affirmative duty to take reasonable steps to conserve and augment
the water supply of an interstate stream. In
Wyoming v.
Colorado, Wyoming brought suit to prevent a
proposed
diversion by Colorado from the Laramie River. This Court calculated
the dependable supply available to both States, subtracted the
senior Wyoming uses, and permitted Colorado to divert an amount not
exceeding the balance. [
Footnote
10] In calculating the dependable supply we placed on each
State the duty to employ "financially and physically feasible"
measures "adapted to
conserving and equalizing the natural
flow." 259 U.S. at
259 U. S. 484
(emphasis added). Adopting a position similar to New Mexico's in
this case, Wyoming objected to a requirement that it employ
conservation measures to facilitate Colorado's proposed uses. The
answer we gave is especially relevant to this case:
"The question here is not what one State should do for the
other, but how each should exercise her relative rights in the
waters of this interstate stream. . . . Both States recognize that
conservation within practicable limits is essential in order that
needless waste may be prevented and the largest feasible use may be
secured. This comports with the all-pervading spirit of the
doctrine
Page 459 U. S. 186
of appropriation and takes appropriate heed of the natural
necessities out of which it arose. We think that doctrine lays on
each of these States a duty to exercise her right reasonably and in
a manner calculated to conserve the common supply."
Ibid. [
Footnote
11]
We conclude that it is entirely appropriate to consider the
extent to which reasonable conservation measures by New Mexico
might offset the proposed Colorado diversion, and thereby minimize
any injury to New Mexico users. Similarly, it is appropriate to
consider whether Colorado has undertaken reasonable steps to
minimize the amount of diversion that will be required.
In addition, we have held that, in an equitable apportionment of
interstate waters, it is proper to weigh the harms and benefits to
competing States. In
Kansas v. Colorado, where we first
announced the doctrine of equitable apportionment, we found that
users in Kansas were injured by Colorado's upstream diversions from
the Arkansas River. 206 U.S. at
206 U. S.
113-114,
206 U. S. 117.
Yet we declined to grant any relief to Kansas on the ground that
the great benefit to Colorado outweighed the detriment to Kansas.
Id. at
206 U. S.
100-101,
206 U. S.
113-114,
206 U. S. 117.
Similarly, in
Nebraska v. Wyoming, we held that water
rights in Wyoming and Nebraska, which under state law were senior,
had to yield to the "countervailing equities" of an established
economy in Colorado, even though it was based on junior
appropriations. 325 U.S. at
325 U. S. 622.
We noted that the rule of priority should not be strictly applied
where it "would work more hardship" on the junior user "than it
would bestow benefits" on the senior user.
Id. at
325 U. S. 619.
See also Washington v. Oregon, supra, at
297 U. S. 522.
The same principle is applicable in balancing the benefits of a
diversion for
proposed uses against the possible harms to
existing
Page 459 U. S. 187
uses.
See, e.g., Wyoming v. Colorado, supra (placing
upon Wyoming, the State with senior water rights, a duty to
conserve water in order to facilitate a diversion for a proposed
use in Colorado);
Connecticut v. Massachusetts,
282 U. S. 660
(1931);
New Jersey v. New York, 283 U.
S. 336 (1931). [
Footnote 12]
We recognize that the equities supporting the protection of
existing economies will usually be compelling. The harm that may
result from disrupting established uses is typically certain and
immediate, whereas the potential benefits from a proposed diversion
may be speculative and remote. Under some circumstances, however,
the countervailing equities supporting a diversion for future use
in one State may justify the detriment to existing users in another
State. This may be the case, for example, where the State seeking a
diversion demonstrates by clear and convincing evidence that the
benefits of the diversion substantially outweigh the harm that
might result. [
Footnote 13]
In the determination of whether the State
Page 459 U. S. 188
proposing the diversion has carried this burden, an important
consideration is whether the existing users could offset the
diversion by reasonable conservation measures to prevent waste.
This approach comports with our emphasis on flexibility in
equitable apportionment, and also accords sufficient protection to
existing uses.
We conclude, therefore, that, in the determination of an
equitable apportionment of the water of the Vermejo River, the rule
of priority is not the sole criterion. While the equities
supporting the protection of established senior uses are
substantial, it is also appropriate to consider additional factors
relevant to a just apportionment, such as the conservation measures
available to both States and the balance of harm and benefit that
might result from the diversion sought by Colorado.
Page 459 U. S. 189
III
Applying the doctrine of equitable apportionment, the Special
Master recommended that Colorado be permitted to divert 4,000
acre-feet of water per year from the headwaters of the Vermejo
River. Because all of the water of the Vermejo River is currently
consumed by New Mexico appropriators, the recommended diversion
would necessarily reduce the amount of water available to New
Mexico.
In explaining the basis for his recommendation, the Special
Master stated that the diversion would not "materially affect"
existing New Mexico appropriations. This conclusion appears to
reflect certain assumptions about the ability of New Mexico users
to implement water conservation measures.
See supra at
459 U. S. 181,
and n. 7. The Special Master also concluded that any injury to New
Mexico would be "more than offset" by the benefits to Colorado.
Report of Special Master 23. Both the availability of conservation
measures and a weighing of the harm and benefits that would result
from the diversion are factors relevant to the determination of a
just and equitable apportionment. However, the Special Master did
not clearly state the factual findings supporting his reliance on
these factors. Accordingly, we remand for additional factual
findings. In particular, we request specific findings concerning
the following areas:
(1) the existing uses of water from the Vermejo River, and the
extent to which present levels of use reflect current or historical
water shortages or the failure of existing users to develop their
uses diligently;
(2) the available supply of water from the Vermejo River,
accounting for factors such as variations in streamflow, the needs
of current users for a continuous supply, the possibilities of
equalizing and enhancing the water supply through water storage and
conservation, and the availability of substitute sources of water
to relieve the demand for water from the Vermejo River;
Page 459 U. S. 190
(3) the extent to which reasonable conservation measures in both
States might eliminate waste and inefficiency in the use of water
from the Vermejo River;
(4) the precise nature of the proposed interim and ultimate use
in Colorado of water from the Vermejo River, and the benefits that
would result from a diversion to Colorado;
(5) the injury, if any, that New Mexico would likely suffer as a
result of any such diversion, taking into account the extent to
which reasonable conservation measures could offset the diversion.
[
Footnote 14]
IV
The flexible doctrine of equitable apportionment clearly extends
to a State's claim to divert water for future uses. Whether such a
diversion should be permitted will turn on an examination of all
factors relevant to a just apportionment. It is proper, therefore,
to consider factors such as the extent to which reasonable
conservation measures by existing users can offset the reduction in
supply due to diversion, and whether the benefits to the State
seeking the diversion substantially outweigh the harm to existing
uses in another State. We remand for specific factual findings
relevant to determining a just and equitable apportionment of the
water of the Vermejo River between Colorado and New Mexico.
It is so ordered.
[
Footnote 1]
Phelps Dodge Corp. v. W. S. Land and Cattle Co., No.
7201 (Dist.Ct.Colfax Cty., Nov. 13, 1941).
[
Footnote 2]
In re Application for Water Right of C. F. & I.
Corp., No. W-3961 (Dist.Ct., W.Div. No. 2, June 20, 1975).
[
Footnote 3]
Kaiser Steel Corp. v. C. F. & I. Steel Corp., Civ.
No. 76-244 (NM 1978). The injunction was not based on a
determination of the right of the two States under the law of
equitable apportionment, since neither Colorado nor New Mexico was
a party to the action.
[
Footnote 4]
N.M. Const., Art. XVI, 2; Colo. Const., Art. XVI, 5, 6. The
administration of water rights in each State is governed by
statute. Colo.Rev.Stat. 37-92-101
et seq. (1973 and
Supp.1982); N.M.Stat.Ann. § 72-1-1
et seq. (1978 and
Supp.1982).
The prior appropriation doctrine and the riparian doctrine are
the two basic doctrines governing the rights to the use of water.
Under the prior appropriation doctrine, recognized in most of the
Western States, water rights are acquired by diverting water and
applying it for a beneficial purpose. A distinctive feature of the
prior appropriation doctrine is the rule of priority, under which
the relative rights of water users are ranked in the order of their
seniority. Under the riparian doctrine, recognized primarily in the
Eastern, Midwestern and Southern States, the owner of land
contiguous to a watercourse is entitled to have the stream flow by
or through his land undiminished in quantity and unpolluted in
quality, except that any riparian proprietor may make whatever use
of the water that is reasonable with respect to the needs of other
appropriators.
Appropriative rights do not depend on land ownership, and are
acquired and maintained by actual use. Riparian rights, by
contrast, originate from land ownership and remain vested even if
unexercised. Appropriative rights are fixed in quantity; riparian
rights are variable, depending on streamflow and subject to the
reasonable uses of others.
See generally 1 R. Clark,
Waters and Water Rights (1967); W. Hutchins, Selected Problems in
the Law of Water Rights in the West (U.S. Dept. of Agriculture,
Misc. Pub. No. 418, 1942); 1 W. Hutchins, Water Rights Laws in the
Nineteen Western States (U.S. Dept. of Agriculture, Misc.Pub. No.
1206, 1971).
[
Footnote 5]
An acre-foot is a volumetric measurement which means the amount
of water required to cover one acre of ground one foot deep. One
acre-foot equals 43,560 cubic feet or 325,900 gallons of water.
[
Footnote 6]
The Conservancy District is the largest user of water from the
Vermejo River in New Mexico. It consists of over 60 farms irrigated
by an extensive system of canals and reservoirs. The United States
Maxwell Wildlife Refuge is also located within the District. In the
early 1950's, the District was part of a large reclamation project
funded by the Federal Government.
Vermejo Park divert water primarily to irrigate land used to
grow hay for its cattle operation. Kaiser Steel uses water
primarily for its coal facilities. Phelps Dodge leases its rights
to Kaiser Steel and to the C. S. Springer Cattle Co.
[
Footnote 7]
This is a fair reading of the Special Master's conclusion that
New Mexico users would not be "materially affected" by the
recommended diversion. While the report doe not expressly state
that Colorado's diversion might be offset by reasonable
conservation efforts, it does refer specifically to the waste and
inefficiency of the Conservancy District's system of water canals.
Report of Special Master 8, 23. In addition, in its second
exception to the report, New Mexico acknowledges that the Special
Master based his conclusion that New Mexico users would not be
materially affected on certain findings concerning waste and
inefficiency within the Conservancy District.
[
Footnote 8]
New Mexico contends that the Special Master relied on a third
ground, namely, that the mere fact that the Vermejo River
originates in Colorado automatically entitles Colorado to a share
of the water of the Vermejo River.
See id. at 8. To the
extent that the Special Master applied such a
per se rule
of apportionment, we reject it as inconsistent with our emphasis on
flexibility in equitable apportionment.
[
Footnote 9]
New Mexico also contends that Colorado is improperly suing
directly and solely for the benefit of a private individual -- C.
F. & I. -- in violation of the Eleventh Amendment, and that
Colorado's suit is barred by laches. We find no merit to these
claims.
Because the State of Colorado has a substantial interest in the
outcome of this suit, New Mexico may not invoke its Eleventh
Amendment immunity from federal actions by citizens of another
State. The portion of the Vermejo River in Colorado is owned by the
State in trust for its citizens. Colo. Const., Art. XVI, § 5. While
C. F. & I. will most likely be the primary user of any water
diverted from the Vermejo River, other Colorado citizens may
jointly use the water or purchase water rights in the future. In
any event, Colorado surely has a sovereign interest in the
beneficial effects of a diversion on the general prosperity of the
State. Faced with a similar set of circumstances in
Kansas v.
Colorado, 206 U. S. 46,
206 U. S. 99
(1907), we concluded that
"[t]he controversy rises . . . above a mere question of local
private right, and involves a matter of state interest and must be
considered from that standpoint."
We also conclude that Colorado is not barred by laches from
seeking an equitable apportionment. For the reasons that we
elaborate
infra at
459 U. S.
186-188, we hold that, under some circumstances, the
countervailing equities supporting a diversion of water for a
future use in one State may justify the detriment suffered by
existing users in another State. Therefore, the mere fact that
Colorado has no existing uses of the waters of the Vermejo River
and that current users in New Mexico may suffer some detriment from
a diversion does not bar Colorado's suit for an equitable
apportionment for future uses. These circumstances, however, do
bear on the burden of proof that Colorado must satisfy to justify
the possible disruption of existing uses.
See infra at
459 U. S.
187-188, and n. 13. A contrary conclusion is not
dictated by
Washington v. Oregon, 297 U.
S. 517,
297 U. S. 528
(1936), or
Colorado v. Kansas, 320 U.
S. 383,
320 U. S. 394
(1943) (dictum), which merely require established users or holders
of water rights to exercise diligence in protecting their rights
and putting them to beneficial uses.
See infra at
459 U. S.
184.
[
Footnote 10]
This description is only roughly accurate, since we did not
rigidly follow this procedure in apportioning the Laramie River,
but instead departed from a strict application of the rule of
priority in numerous respects. For instance, our decree in
Wyoming v. Colorado granted Colorado an unqualified right
to divert 22,500 acre-feet, even though there were Wyoming
appropriations senior to the Colorado appropriations underlying the
22,500 acre-feet grant. 259 U.S. at
259 U. S.
489-490. In addition, we granted to Colorado priority to
divert a total of 37,750 acre-feet, even though some of the
underlying appropriations were junior to a number of Wyoming
appropriations.
Id. at
259 U. S.
495-496. The effect was to guarantee water to junior
appropriators in Colorado to the potential detriment of senior
appropriators downstream in Wyoming.
See 2 R. Clark,
Waters and Water Rights § 132.4 (1967).
[
Footnote 11]
We thus required Wyoming to enhance and equalize the water
supply through "practicable storage and conservation" measures,
such as the use of storage facilities similar to those already in
use in Wyoming. 259 U.S. at
259 U. S.
485.
[
Footnote 12]
In
Connecticut v. Massachusetts, we declined to enjoin
Massachusetts' proposed diversion for future uses. We took into
account the impending "serious water shortage" in the Boston area
and the absence of "real or substantial injury or damage" to
Connecticut. 282 U.S. at
282 U. S. 664,
282 U. S. 672.
Although
Connecticut v. Massachusetts, as well as
New
Jersey v. New York, involved States that follow the riparian,
rather than the prior appropriation, doctrine,
see
n 4,
supra, our
allocation of water for future uses rested on the federal common
law of equitable apportionment, which, as we made clear, "is not
governed by the same rules of [state] law that are applied . . .
for the solution of similar questions of private right."
Connecticut v. Massachusetts, 282 U.S. at
282 U. S. 670;
see also New Jersey v. New York, 283 U.S. at
283 U. S.
342-343. Nothing in those two cases suggested that the
apportionment of water for future uses in any way depended on the
adherence of both States to the riparian doctrine.
[
Footnote 13]
Our cases establish that a State seeking to prevent or enjoin a
diversion by another State bears the burden of proving that the
diversion will cause it "real or substantial injury or damage."
Connecticut v. Massachusetts, supra, at
282 U. S. 672.
See also New Jersey v. New York, supra, at
283 U. S.
344-345;
Kansas v. Colorado, 206 U.S. at
206 U. S. 117;
Colorado v. Kansas, 320 U.S. at
320 U. S.
393-394. This rule applies even if the State seeking to
prevent or enjoin a diversion is the nominal defendant in a
lawsuit. In
Colorado v. Kansas, for instance, Colorado
sued Kansas seeking to enjoin further lawsuits by Kansas water
users against Colorado users. Although Kansas was the defendant, we
granted Colorado an injunction based on Kansas' failure to sustain
the burden of showing that the Colorado diversions had "worked a
serious detriment to the substantial interests of Kansas."
Id. at
320 U. S. 400;
see also id. at
320 U. S.
389-390.
New Mexico must therefore bear the initial burden of showing
that a diversion by Colorado will cause substantial injury to the
interests of New Mexico. In this case, New Mexico has met its
burden, since any diversion by Colorado, unless offset by New
Mexico at its own expense, will necessarily reduce the amount of
water available to New Mexico users.
The burden has therefore shifted to Colorado to establish that a
diversion should nevertheless be permitted under the principle of
equitable apportionment. Thus, with respect to whether reasonable
conservation measures by New Mexico will offset the loss of water
due to Colorado's diversion, or whether the benefit to Colorado
from the diversion will substantially outweigh the possible harm to
New Mexico, Colorado will bear the burden of proof. It must show,
in effect, that, without such a diversion, New Mexico would be
using "more than its equitable share of the benefits of a stream."
Id. at
320 U. S. 394.
Moreover, Colorado must establish not only that its claim is of a
"serious magnitude," but also that its position is supported by
"clear and convincing evidence."
Connecticut v. Massachusetts,
supra, at
282 U. S. 669.
See also Colorado v. Kansas, supra, at
320 U. S. 393;
Washington v. Oregon, 297 U.S. at
297 U. S.
522.
[
Footnote 14]
The Special Master may make any other factual findings that he
considers relevant. Additional hearings may be held, although they
may be unnecessary in light of the extensive evidence already
presented at trial. Upon remand, the Special Master is free to
reaffirm his original recommendation or make a different
recommendation on the basis of the evidence and applicable
principle of equitable apportionment.
CHIEF JUSTICE BURGER, with whom JUSTICE STEVENS Joins,
concurring.
This case arises from an understandably intense competition
between two States over rights to a small, nonnavigable, interstate
river. Because, on the record before it, this
Page 459 U. S. 191
Court cannot make an appropriate apportionment of the water, the
Court remands the case to the Special Master for further factual
findings.
I emphasize that, under our prior holdings, these two States
come to the Court on equal footing.
See Kansas v.
Colorado, 206 U. S. 46
(1907). Neither is entitled to any special priority over the other
with respect to use of the water. Colorado cannot divert all of the
water it may need or can use simply because the river's headwaters
lie within its borders,
Wyoming v. Colorado, 259 U.
S. 419,
259 U. S. 466
(1922). Nor is New Mexico entitled to any particular priority of
allocation or undiminished flow simply because of first use.
See, e.g., Colorado v. Kansas, 320 U.
S. 383,
320 U. S. 393
(1943). Each state through which rivers pass has a right to the
benefit of the water, but it is for the Court, as a matter of
discretion, to measure their relative rights and obligations and to
apportion the available water equitably. As the Court's opinion
states, in the process of apportioning the water, prior dependence
and inefficient uses may be considered in balancing the equities.
But no state has any priority over any other state. It is on this
understanding of the Court's holding that I join the opinion and
the judgment.
JUSTICE O'CONNOR, with whom JUSTICE POWELL joins, concurring in
the judgment.
The doctrine of prior appropriation includes the requirement
that the appropriator's use of water be beneficial and reasonable.
What is reasonable, of course, does not admit of ready definition,
being dependent upon the particular facts and circumstances of each
case. In this case, the Special Master has cast an accusatory
finger at the Vermejo Conservancy District, concluding that "[t]he
system of canals used to transport the water to the fields is
inefficient." Report of Special Master 8.
Undoubtedly, there is evidence in the record indicating that
large losses of water occur through seepage and evaporation in
transporting waters of the Vermejo through open
Page 459 U. S. 192
ditches for irrigation and stock watering. Tr. 1315. It is a
leap, however, from observing that large losses occur to
concluding, as Colorado would have the Court do, that the practices
of the Conservancy District are wasteful or unreasonable. As the
Court observes,
ante at
459 U. S. 185,
the extent of the duty to conserve that may be placed upon the user
is limited to measures that are "financially and physically
feasible,"
Wyoming v. Colorado, 259 U.
S. 419,
259 U. S. 484
(1922), and "within practicable limits."
Ibid. [
Footnote 2/1] Nevertheless, in concluding
that the Conservancy District's distribution system is
"inefficient," the Special Master made no factual finding that
improved economy in that system is within the practicable means
available to the District. [
Footnote
2/2]
Colorado would have the Court assess the Conservancy District's
"waste" and "inefficiency" by a new yardstick --
i.e., not
by comparing the economic gains to the District with the costs of
achieving greater efficiency, but by comparing the "inefficiency"
of New Mexico's uses with the relative benefits to Colorado of a
new use. The Special Master has succumbed to this suggestion. His
recommendation that
Page 459 U. S. 193
Colorado be permitted a diversion embodies the judgment that,
because Colorado can, in some
unidentified sense, make
"better" use of the waters of the Vermejo, New Mexico may be forced
to change its present uses.
Today the Court has also gone dangerously far toward accepting
that suggestion. The Court holds,
ante at
459 U. S. 186,
that it is appropriate in equitable apportionment litigation to
weigh the harms and benefits to the competing States. It does so
notwithstanding its recognition,
ante at
459 U. S. 187,
that the potential benefits from a
proposed diversion are
likely to be speculative and remote, and therefore difficult to
balance against any threatened harms, and its concession,
ibid., that the equities supporting protection of an
existing economy will usually be compelling.
In equitable apportionment litigation between two prior
appropriation States concerning the waters of a fully appropriated
river, this Court has never undertaken that balancing task outside
the concrete context of either two established economies in the
competing States dependent upon the waters to be apportioned
[
Footnote 2/3] or of a proposed
diversion in one State to satisfy a demonstrable need for a potable
supply of drinking water. [
Footnote
2/4] In the former context, the Court may assess the relative
benefit and detriment by reference to the
Page 459 U. S. 194
actual fruits of use of the waters in the respective States.
[
Footnote 2/5] In the latter
context, the compelling nature of the proposed use reduces the
speculation that might otherwise attend assessment of the benefits
of a proposed diversion. Where, as here, however, no existing
economy in Colorado depends on
Page 459 U. S. 195
the waters of the Vermejo and the actual uses in New Mexico rank
in equal importance with the proposed uses in Colorado, [
Footnote 2/6] the difficulty of arriving at
the proper balance is especially great.
This case therefore highlights the restraint with which the
Court should proceed in apportioning interstate waters between a
State seeking a
future use and a State with an existing
economy dependent upon the waters to be apportioned. The Court can
only invite litigation within its original jurisdiction if it
permits one State to obtain a diversion for a new use upon that
State's allegation that the second State is engaging in "wasteful"
practices or that it can make "better" use of the waters, even if
the second State's uses are entirely reasonable.
I do not suggest, of course, that the Court must blind itself to
compelling evidence of waste by one State. Protection of
existing economies does not require that users be permitted to
continue in unreasonably wasteful or inefficient practices. But the
Court should be moved to exercise its original jurisdiction to
alter the
status quo between States only where there is
clear and convincing evidence, ante at
459 U. S. 188,
n. 13, that one State's use is unreasonably wasteful. To allow
Colorado a diversion upon a lesser showing comports neither with
the equality of rights of the litigants before us,
see
Connecticut v. Massachusetts, 282 U.
S. 660,
282 U. S. 670
(1931), nor with the sparing use that should be made of the Court's
equitable powers,
see id. at
282 U. S. 669.
Further, such action would seriously undermine the Court's
affirmation,
ante at
459 U. S. 184,
that priority of appropriation is the "guiding principle" in
allocating waters between two prior appropriation States.
The Court's remand reflects its judgment that the paucity of the
factual findings before us furnishes an inadequate basis
Page 459 U. S. 196
upon which to make "the delicate adjustment of interests" at
stake,
Nebraska v. Wyoming, 325 U.
S. 589,
325 U. S. 618
(1945). I concur in that disposition insofar as the Special
Master's findings and conclusions do not provide a basis for
determining whether Colorado has demonstrated by clear and
convincing evidence that the Conservancy District has engaged in
unreasonably wasteful practices.
[
Footnote 2/1]
It is significant to note that in
Wyoming v. Colorado,
upon which the Court relies for the proposition that an affirmative
duty to conserve may be imposed on the States,
ante at
459 U. S. 186,
the Wyoming appropriators already had storage facilities in place
for equalizing the river's natural flow. In answering Wyoming's
objection that it should not be burdened with conservation measures
in order to permit a diversion by Colorado, the Court observed:
"We think [the] doctrine [of appropriation] lays on each of
these States a duty to exercise her right reasonably and in a
manner calculated to conserve the common supply. Notwithstanding
her present contention, Wyoming has in fact proceeded on this line,
for, as the proof shows, her appropriators, with her sanction,
have provided and have in service reservoir facilities
which are adapted for the purpose and reasonably sufficient to meet
its requirements."
259 U.S. at
259 U. S.
484-485 (emphasis added).
[
Footnote 2/2]
Evidence in the record indicates that the Conservancy District
has employed an engineering firm to investigate the feasibility of
constructing an enclosed system to deliver stock water to the
District's landowners. Tr. 1318.
[
Footnote 2/3]
See Nebraska v. Wyoming, 325 U.
S. 589 (1945);
Washington v. Oregon,
297 U. S. 517
(1936);
Kansas v. Colorado, 206 U. S.
46 (1907).
[
Footnote 2/4]
See New Jersey v. New York, 283 U.
S. 336 (1931);
Connecticut v. Massachusetts,
282 U. S. 660
(1931). It is also significant to note that these disputes occurred
between two riparian States.
Wyoming v. Colorado, supra, does not represent an
exception to the pattern stated in the text. The Court did not
engage in any wholesale balancing of the relative harms and
benefits to the two States from the proposed diversion. Rather, the
Court imposed a very limited duty on Wyoming to make use of the
storage facilities its appropriators already had in place,
see 459
U.S. 176fn2/1|>n. 1,
supra, for the purpose of
calculating the dependable supply of water available to Wyoming.
259 U.S. at
259 U. S. 484.
The Court was thereby able to determine that the waters of the
Laramie River were not fully appropriated, and that a share of the
waters was available for Colorado's proposed use.
[
Footnote 2/5]
For example, in
Kansas v. Colorado, supra, Kansas
sought to restrain Colorado from diverting waters of the Arkansas
River for the irrigation of lands in Colorado. Colorado had
diverted waters from the river since the 1880's. As a result of
irrigation, the population of the irrigated areas, the number of
acres cultivated, and the value of farm products produced in these
areas escalated dramatically. 206 U.S. at
206 U. S.
108-109. The Court compared this demonstrated salutary
effect of the irrigation on the economy of Colorado with the
corresponding population changes and changes in acreage and
production of corn and wheat in the affected Kansas counties for
the same period.
Id. at
206 U. S.
110-113. Using these concrete data, the Court was able
to discern some minimal injury to Kansas as a result of the
diminution of the flow of the Arkansas River.
Id. at
206 U. S.
113-114. Viewing the overall impact of the available
water on the two economies, however, the Court concluded:
"[W]hen we compare the amount of this detriment [to Kansas] with
the great benefit which has obviously resulted to the counties in
Colorado, it would seem that equality of right and equity between
the two States forbids any interference with the present withdrawal
of water in Colorado for purposes of irrigation."
Ibid. Quite clearly, the Court was not forced to
speculate about the benefit and detriment of the diversion to the
competing States.
Similarly, in
Washington v. Oregon, supra, the Court
was equipped to assess the balance of harm and benefit to the
economies from the diversion at issue. Washington sought an
injunction against Oregon's diversion of waters of the Walla Walla
River for irrigation in Oregon. On the one hand, Oregon had an
existing agricultural economy dependent upon irrigation from the
Walla Walla. On the other hand, the evidence revealed that there
would be absolutely no benefit to Washington in prohibiting
Oregon's diversion during periods of water shortage; the nature of
the river channel was such that, even if the water was not diverted
by Oregon users, it would be absorbed by the gravel beneath the
channel, and never reach Washington users. 297 U.S. at
297 U. S.
522-523. The Court therefore concluded that "[t]o limit
the long-established use in Oregon would materially injure Oregon
users without a compensating benefit to Washington users."
Id. at
297 U. S.
523.
[
Footnote 2/6]
According to Colorado, the diverted water would be used "in
industrial operation at coal mines, agriculture, timbering, power
generation, domestic need and other industrial operation. . . ."
Reply Brief for Colorado 8.