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S2 | MONDAY, MAY 5, 2014 | Litigation
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Water Wars: Disputes Run Deep

In Recent and Pending Litigation

driven litigation forthcoming.
The U.S. Supreme Court Tackles
Water in Two Recent Cases. In the
U.S. Supreme Court, Texas has sued New
Mexico and Colorado on the Rio Grande
(State of Texas v. State of New Mexico
and State of Colorado
, CV No. 220141 ORG. YLJ
(U.S. Jan. 8, 2013)), and Florida has sued N
Georgia on the Apalachicola-Chattahoochee-
Flint River basin (State of Florida v. State of
Georgia, No. 142, petition for cert. iled Oct.
1, 2013)). Both cases underscore that water
is a crucial interstate resource in the United
States, and water availability is declining due
to increased demand and drought. Billions of

dollars’ worth of water programs are in place
at the federal level with responsibility spread
over multiple agencies and departments.
Even so, water remains a local resource, and
is managed in the irst instance at the state
characterized and local level.
BY KATHY ROBB
as short-term There are essentially three means of resolv-
(typically less ing multi-jurisdictional disputes of the sort
W ater, in adequate supply and quality, than six months) presented in the Texas and Florida cases:

remains the key environmental chal- and long-term (1) legislative or congressional apportion-
lenge in this century. It is not surpris-
(greater than ment, irst acknowledged by the Supreme
ing that water-related litigation in the courts, drought inten- Court in 1963 in Arizona v. California2; six months), and
and regulatory developments that are likely the drought (2) judicial allocation3; and (3) interstate oceans cov-
sity is deined on
er about 70 percent
to generate more litigation, are increasing. ly dry, moder- compacts.4 Of the three, interstate compacts of the planet.
maps as abnormal-
Accordingly, when
Two key factors drive the disputes: popula- or exceptional. are often preferred.
the irst photograph
ate, severe, extreme,
of earth was taken
tion growth and drought. In the United States, tional drought The legislative or Congressional apportion- on Dec. 7, 1972 during Apollo 17, the last At this writing, excep-
water supply is no longer a concern limited conditions are indicated in parts of Califor- ment of water is generally considered to be manned moon mission, it was named “the

to the arid west.
nia, Nevada and Texas. While water planners, a dificult political road. Judicial allocation blue marble.” When that photo was taken
Population Growth and Drought Drive managers, and suppliers in the western states stems from Article III, §2, Clause 1 of the U.S. in 1972, earth supported about four billion
New Fights. Only about 2.5 percent of the continue to struggle to address scarcity condi- Constitution, granting original jurisdiction to people. Today, within one generation, there
planet’s water is fresh, and more than two- tions in drought, recent drought conditions on the U.S. Supreme Court over “controversies are about seven billion. By 2050, that number
thirds of that fresh water is locked up in the the east coast also have generated litigation
between two or more states”; only about a is projected at nine billion. These statistics
polar ice caps and glaciers. Salt water in the
among Florida, Georgia and Alabama.
dozen of these cases have been brought. suggest that water consumption is doubling
As a result, ive states are disputing the Interstate compacts, on the other hand, result every 20 years. Consumption increases alone
allocation of interstate rivers in two sepa- from negotiations and agreements by the will drive water scarcity issues.
rate original jurisdiction cases now before parties based on the best information avail- Drought is another driving factor, and not
KATHY ROBB is a partner at Hunton & Williams in New
York, where she focuses on environmental litigation the U.S. Supreme Court. In New York, previ- able to them (arguably the people who know just in the west. The U.S. Drought Monitor
before federal and administrative courts, regulation, ously unpermitted water transfers are being most about the issues, and certainly those provides telling snapshots weekly, delin-
counseling, and transactions.
litigated. There is a perfect storm of water-
most affected by those issues). » Page S10
eating drought areas.1 Drought impact is

Inside
Litigation

S4 Practical Considerations
S6 Will ‘Nautilus’ S8 Admissibility of Email S
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For Dealing with Subsequent Signiicantly Change Under FRE’s Business
Remedial Measures
The Strength of Patents? Records Exception
Kris Fischer, Editor-In-Chief

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