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UNIVERSITY OF
SFLORIDA
EXTENSION
Institute of Food and Agricultural Sciences
Water Wars: Water Allocation Law and the
Apalachicola-Chattahoochee-Flint River Basin1
Roy R. Carriker2
This paper discusses the background and
litigation involved in the dispute over water
reallocation in the Apalachicola-Chattahoochee-Flint
River Basin in the southeastern United States. It
reviews the legal framework that has been used
historically to settle water allocation disputes within
and among states, with implications for the process
now unfolding as negotiators for the states of
Alabama, Florida, and Georgia attempt to find
common ground.
Introduction
Throughout much of the twentieth century,
states of the western United States confronted one
another in disputes over reliable supplies of fresh
water. Such interstate water allocation issues were
relatively uncommon in the eastern United States
where fresh water has been comparatively abundant.
A series of severe droughts during the 1980s changed
all that for the states of Alabama, Florida, and
Georgia, however, forcing them to recognize the
strains that continued population growth and
economic expansion in the southeast have placed on
the water resources of the region (Moore, p. 5).
In 1997, after litigation, studies, and an interim
negotiated agreement, Alabama, Florida, and Georgia
entered into two interstate compacts for the specific
purpose of negotiating a long-term allocation of
surface water resources in the major river basins
shared by the states (Moore, p. 5). Three years later,
having several times extended the deadline set by the
compacts, the negotiators for the three states still had
not reached agreement on the major water allocation
issues confronting them.
This paper discusses the background and
litigation involved in the dispute over water
reallocation in the Chattahoochee River. It reviews
the legal framework that has been used historically to
settle water allocation disputes within and among
states, with implications for the process now
unfolding as negotiators for the states of Alabama,
Florida, and Georgia attempt to find common
ground.
Description of the Basin
The dispute among Alabama, Florida, and
Georgia involves two river basins. The first of these
is known as the ACF (the Apalachicola,
Chattahoochee, and Flint Rivers). The Chattahoochee
1. This is document FE 208, a publication of the Department of Food and Resource Economics, Florida Cooperative Extension Service, Institute of Food and
Agricultural Sciences, University of Florida. Published November 2000. Please visit the EDIS website at: http://edis.ifas.ufl.edu.
2. Roy R. Carriker, Professor, Department of Food and Resource Economics, Florida Cooperative Extension Service, Institute of Food and Agricultural
Sciences, University of Florida, Gainesville, FL.
The Institute of Food and Agricultural Sciences is an equal opportunitylaffirmative action employer authorized to provide research, educational
information and other services only to individuals and institutions that function without regard to race, color, sex, age, handicap, or national origin.
For information on obtaining other extension publications, contact your county Cooperative Extension Service office. Florida Cooperative
Extension Service/Institute of Food and Agricultural Sciences/University of Florida/Christine Taylor Waddill, Dean.
Water Wars: Water Allocation Law and the Apalachicola-Chattahoochee-Flint River Basin 2
River has its headwaters in the hills and low
mountains of northwest Georgia, from whence it
flows southwest through metropolitan Atlanta to the
Alabama-Georgia state line. The border between the
two states follows the Chattahoochee River south to
its confluence with the Flint River, which, having
formed in the counties just south of Atlanta, flows
generally toward the extreme southwest comer of the
state of Georgia. The Chattahoochee and the Flint
Rivers join just north of the Florida state line to form
the Apalachicola River which, in turn, flows south
through the Florida panhandle into Apalachicola Bay
and the Gulf of Mexico.
The second river basin is the ACT (the Alabama,
Coosa, and Tallapoosa Rivers). The Coosa and
Tallapoosa Rivers have their headwaters in northwest
Georgia (adjacent to, and northwest of, the
headwaters of the Chattahoochee River). The two
rivers flow southwest out of Georgia into northeast
Alabama. Meandering southwest, the two rivers join
near Montgomery to form the Alabama River. The
Alabama River flows generally south until joining the
Tombigbee River to form the Mobile River, and then
emptying into Mobile Bay.
Multiple Uses, Multiple Demands
A series of federal reservoirs operated by the
United States Army Corps of Engineers (Corps)
provide flood control, navigation support,
hydroelectric power generation, water supply, and
recreation on both river systems. The rivers also
support a complex ecosystem, including the nation's
premier oyster and shellfish habitat in Apalachicola
Bay.
Many of the uses along these rivers depend
heavily on the manner in which the Corps operates
control structures on the federal impoundments,
managing lake levels and stream flow throughout the
river basins. However, no single set of protocols
governing reservoir releases is equally suited for all
uses. For example, flood protection requires that
reservoirs be maintained with unused capacity in
order to impound flood waters, regulating their
release so as to protect downstream property from
flooding. However, assuring adequate municipal
water supplies in the event of a protracted drought
requires that reservoirs be used to store more, rather
than less, water. Navigation requires that reservoirs
release water during dry periods to maintain streams
at navigable depths so that commercial barge traffic
and pleasure craft can ply the river waters. Natural
ecosystems are typically adapted to "natural"
hydroperiods, the natural tendency for rivers to
alternate between flood stage and low flow in
response to normal rainfall events.
Water Allocation as an Interstate Issue
History of Water Use in the ACF Basin
The Corps published its first report on the
development of water resources in the ACF River
Basin in 1939 (Vest, p. 690).3 The Corps
recommended that Congress approve "full
development" of the ACF River Basin for flood
control, navigation, and hydroelectric power
generation. Congress subsequently authorized
specific projects, including the construction of
Buford Dam which was completed in 1958.
The Corps' eventual role in reallocation of water
to meet Atlanta's water supply needs is based on two
acts of Congress (Vest, pp. 690-691). First was the
Flood Control Act of 1944, authorizing the Corps to
reallocate surplus water at federal reservoirs to
industrial and domestic use. The Act defined surplus
water as "water in excess of that required to meet
project purposes" (Vest, p. 691). The second act of
Congress underlying the Corps' role in reallocating
water to Atlanta was the Rivers and Harbors Flood
Control Act of 1958, of which Section 301 allowed
the Corps to store water in federal reservoirs for
municipal and industrial uses. Neither of these acts
authorize the Corps to make significant modifications
to existing projects. If significant modification to a
project is needed, specific Congressional
authorization would be required.
In the early 1970s, public officials in Georgia
began to recognize that the rapidly growing Atlanta
metropolitan area would eventually outstrip existing
capacity to supply freshwater to domestic and
industrial users (Vest, p. 691). In 1972, Congress
authorized the Corps to conduct aMetropolitan
Atlanta Area Water Resources Management Study to
develop a long-range water supply plan for the
Atlanta area. During this study, the Corps analyzed
Water Wars: Water Allocation Law and the Apalachicola-Chattahoochee-Flint River Basin 3
over 50 water supply plans, from which it selected
three. In 1981, the Corps published a feasibility study
for public comment on the three final alternatives:
construct a re-regulation dam downstream from
Buford Dam, reallocate storage in Lake Lanier from
hydropower to water supply, or dredge the Morgan
Falls reservoir to increase the storage capacity.
In 1982, the Corps published a final report in
which it recommended the construction of the
re-regulation dam (Vest, p. 691). This proposal met
strong opposition because of its environmental
impacts. In 1988, after additional analysis, the Corps
issued a revised recommendation favoring adoption
of the reallocation alternative. In 1989, the Corps
issued a draft Post Authorization Change (PAC)
report, recommending that 20 percent of the water
currently reserved for hydropower production be
reallocated for water supply. The proposed
reallocation would provide for the water supply needs
of Atlanta through the year 2010. This report included
an Environmental Assessment (required by the
National Environmental Policy Act) which concluded
that reallocation would not have a significant adverse
impact on the environment.
Alabama Sues the Corps of Engineers
In response to the Corps' Post-Authorization
Change report calling for reallocation of water from
Lake Lanier to supply water to Atlanta, the State of
Alabama filed a lawsuit on June 28, 1990 (Vest, p.
692).4 The lawsuit challenged the validity of the
Corps' reallocation plan on five counts.
The first count challenged the reallocation as a
violation of common-law water rights, alleging that
the PAC would vest Georgia interests with expanded
water rights at the expense of downstream interests
(Vest, p. 692). The first count also alleged that the
Corps had breached its duty to operate the ACF River
Basin system in a neutral manner by favoring Georgia
interests.
The remaining four counts of the suit alleged
that the Corps violated the National Environmental
Policy Act (NEPA) by failing to consider fully the
environmental impacts of the proposed reallocation
(Vest, p. 692). The complaint asked for an injunction
to prevent the Corps from implementing the proposed
reallocation or entering into any water supply
contracts, and requested a judicial declaration that the
Corps failed to comply with the provisions of the
NEPA requiring development of an Environmental
Impact Statement. In August, 1990, the state of
Florida petitioned to intervene in the lawsuit, as did
the state of Georgia; the Alabama Wildlife
Federation; the Cities of Montgomery and Gadsden,
Alabama; and the City of Cartersville, Georgia.
Memorandum of Agreement and Basin
Studies
In July 1990, officials from Alabama and
Georgia met twice to seek compromise, but were
unsuccessful. In August 1990, the Corps joined
Alabama and Georgia in the negotiations and
presented a "Memorandum of Agreement" (Vest, p.
693). On August 30, 1990, Alabama, Florida,
Georgia, and the Corps negotiated a Joint Stay of
Proceedings to be entered into by Alabama and the
Corps. The court granted the stay on September 19,
1990, to allow the parties to reach a settlement
without further litigation.
In January 1992, Alabama, Florida, Georgia, and
the Corps entered into an agreement calling for a
"process for cooperative management and
development of regional water resources" (Erhardt,
p. 202).5 The agreement required a three-year
comprehensive study of local water resources. In the
meantime, the Corps would withdraw its 1989
proposals to reallocate water from Lake Lanier, while
Alabama, in turn, would request that its lawsuit
against the Corps be placed on an inactive docket.
The action defused the immediate danger of lengthy
litigation, and created an opportunity for all parties
involved to make constructive input.
The resulting Comprehensive Water Resource
Study has since been referred to as "an unprecedented
effort to develop the data necessary to fully address
the water resource issues in the ACT and ACF"
(Moore, p. 7). The study addresses four broad topics:
water resource demands, water resource availability,
flood and drought management strategies, and
coordination mechanisms. The goal has been to
produce the technical and strategic information
required to develop a basin-wide management plan
for water resources.
Water Wars: Water Allocation Law and the Apalachicola-Chattahoochee-Flint River Basin 4
The Interstate Compacts
One significant result of the $27 million
comprehensive study was agreement among the three
states that the water resource issues should be
resolved in the context of two interstate
compacts-one for each basin (Moore, p. 7). In early
1997, Alabama and Georgia entered into the ACT
Compact, and Alabama, Florida, and Georgia entered
into the ACF Compact. On November 20, 1997,
President Clinton signed the legislation that provided
Congressional approval of the compacts.6
The essence of the ACT and ACF compacts is
the agreement to negotiate an "equitable
apportionment" of the surface waters in each basin
(Moore, p. 7). Neither compact contains an allocation
itself; rather, the compacts establish a Compact
Commission for each basin, which can approve an
allocation formula for the next 50 years.
To understand the context within which the new
Compact Commissions must seek an "equitable
apportionment" of the surface waters in these river
basins requires a review of the legal framework for
resolving water allocation disputes that has evolved
in the United States over the past two centuries.
Water Allocation Law and Interstate
Water Disputes
State Water Allocation Laws
State governments have been primarily
responsible for defining rights relative to the quantity
of water used (Cox, 1981, pp. 108-109). Much of the
state water law that still governs public and private
relationships as they pertain to water resources in the
United States is not a product of legislation. Rather, it
is the cumulative product of court decisions. The
judicial rule-making process, referred to in the legal
literature as the "common law" process, is a
mechanism of long standing in the United States,
with historical roots in English common law.
Although the courts in the United States inherited a
body of general principles from England, the body of
common law that emerged over time was shaped by
the kinds of disputes brought before the courts, and
by the tendency of courts to adhere to precedent
(Brion, 1979). That is, courts of a jurisdiction
typically applied certain principles to similar cases,
and as the disputes presented to the court covered a
variety of basic issues, the courts evolved a
comprehensive body of judicial doctrine pertaining to
water allocation disputes.
In general, water law has evolved separately for
each of several phases of the hydrologic cycle.
Accordingly, specialized doctrines of watercourse
law, groundwater law, and diffused surface water law
have evolved. Moreover, western jurisdictions
produced water law doctrines that are distinctly
different from those produced in eastern jurisdictions.
Finally, a number of states have initiated basic
changes in water law by legislation and the creation
of administrative bodies with regulatory authority.
The issues concerning the ACF and the ACT
basins are surface watercourse issues. Water law has
seen its greatest development with regard to water in
streams because surface water bodies were,
historically, the first to be developed for water
supplies and power (Cox, p. 190). Two basic
doctrines of watercourse law evolved as the
individual states, through custom and case law,
resolved water rights issues: the "riparian doctrine" in
the east and the "doctrine of prior appropriation" in
the west. Some states have applied the two doctrines
jointly, and others have adopted legislation creating
various forms of administrative water law. However,
the riparian and prior appropriation doctrines still
form the basis of water law for most states.
Prior Appropriation Doctrine
The doctrine of prior appropriation developed in
the western states and is still predominant in those
states (Carriker, p. 5). The basic principle of water
rights under the doctrine of prior appropriation is
"first in time, first in right." In principle, the rights of
water users of a common water source are ranked in
the order of the dates on which each water use was
initiated. The right of an earlier (senior or prior)
appropriator is superior to that of a later (junior or
subsequent) appropriator.
The doctrine of prior appropriation was
originally developed as common law, and its basic
concepts were refined through the judicial process.
However, most western states have adopted water use
Water Wars: Water Allocation Law and the Apalachicola-Chattahoochee-Flint River Basin 5
legislation and have established detailed
administrative procedures for implementing the water
allocation function of the doctrine (Carriker, p. 6).
The water right under prior appropriation is initiated
by application of water to beneficial use and does not
arise as a function of land ownership. Use of water is
not necessarily restricted to land in contact with the
watercourse, and water may be transported for
productive uses both within and between watersheds.
This flexibility as to place of use has been restricted
by statute in some states. The water right in most of
the western states is transferable. A feature that
enables the system of water rights to accommodate
new rights is that other appropriators, including
junior appropriators, must not be adversely affected
by the assignment and exercise of new rights.
The Riparian Doctrine
The riparian doctrine is a collection of judicially
developed principles used by the courts in the eastern
United States to decide cases involving water-use
conflicts (Carriker, p. 4). The basic concept of the
riparian doctrine is that private water rights are tied to
the ownership of land bordering a natural
watercourse. The riparian right is constitutionally
protected and cannot be taken without due process of
law. The right is of a "usufructuary" nature, meaning,
essentially, that it represents a right to use and profit
from the water as long as that use does not reduce the
quality or accessibility of the water to other riparians.
Two independent theories of riparian rights have
been identified: the natural flow theory and the
reasonable use theory (Carriker, p. 4). Under the
natural flow theory, each riparian owner is entitled to
the natural flow of the stream except as diminished
by the domestic uses of upstream riparians.
Nondomestic uses are permitted only to the extent
that they do not perceptibly diminish the natural flow.
The reasonable use theory, on the other hand, is
based on the principle that each riparian landowner
has the right to make any use of water, provided that
the use is reasonable in relation to the needs of other
riparian owners (Carriker, pp. 4-5). The reasonable
use theory is based on a concept of sharing. The limits
of an individual water right are determined by the
impact of the water use on others and do not
necessarily prohibit a reduction in stream flow.
Critique of the Common Law
Dispute-Settlement Process
In recent years, criticism has been directed
toward the common law riparian system. The general
point of this criticism is that the common law
standards of reasonableness and the resolution of
conflict through litigation are not adequate to deal
with the impending water problems brought on by
population and economic growth (Carriker, p. 14).
Critics point to the fact that the common law
riparian system restricts the use of stream water to
riparian owners on riparian land and asserts that better
use may be made at other places by riparian or
nonriparian owners (Carriker, p. 14). "Reasonable
use" as a condition of the riparian right entails
uncertainty for riparian owners, since reasonableness
of each use depends, in part, on the needs of other
riparian owners, including the unforeseen exercise of
a previously unused right as new water uses emerge.
Additional uncertainty results from the need for
litigation in order to establish the extent of a
riparian's entitlement to reasonable use. Critics argue
that such uncertainty has costly economic
consequences, as when industries refuse to locate in
an area for fear that the legal right to water may be
diminished in some unforeseen manner. Moreover,
critics argue that the courts are incapable of
uniformity in application of the law because of their
lack of expertise and the inefficiency of a
case-by-case approach. The common law
dispute-settlement process also is not well-suited to
protecting environmental values associated with a
watercourse, since environmental quality
considerations transcend individual riparian
landowner interests.
Administrative Water Allocation Law
In response to criticisms of the common-law
dispute-settlement process based on riparian doctrine,
several statutory proposals providing for
comprehensive regulation of water resources in a
riparian jurisdiction have been suggested and/or
adopted (Carriker, p. 16). Florida, historically a
riparian state, is foremost among states that have
adopted aspects of administrative water law. The
Florida Water Resources Act of 1972 brought into
existence a form of administrative water law based
Water Wars: Water Allocation Law and the Apalachicola-Chattahoochee-Flint River Basin 6
largely on "A Model Water Code" which had been
developed by scholars at the University of Florida's
College of Law (Carriker, p. 23). It provided for a
system of administrative regulation within the
framework of the riparian water law system. It
created five water management districts,
encompassing the entire state. A nine-member
governing board makes policy for each district
subject to provisions of the statute, a statewide water
policy, and oversight by the Florida Department of
Environmental Protection. The districts are required
by statute to regulate consumptive use of all waters of
the state, all alterations in natural flow patterns of
water, and the design and installation of wells. The
basic standards for evaluating applications for
consumptive use permits are provided by the statute.
A proposed water use must be "reasonable" with
respect to uses of other riparians, or, in the case of
groundwater, to adjacent landowners. The proposed
water use must be "beneficial" and must involve only
the quantity of water necessary for an economically
efficient operation in a use which is consistent with
the public interest. Established minimum stream,
lake, and groundwater levels are included in the
consideration of reasonable beneficial uses and in the
granting of permits.
Georgia water law was traditionally based on the
riparian reasonable use doctrine (Carriker, p. 24). A
1964 Georgia Water Quality Control Act was
amended in 1977 to require permits for withdrawals,
diversion, or impoundment of surface water in excess
of 100,000 gallons per day and to require limits to
permissible use of surface waters. Agriculture was
exempt. Competition for limited water supplies was
to be managed by adherence to a classification
system which assigns priorities. In cases involving a
proposed transfer of water outside the basin of origin,
consideration must be given to competing intrabasin
uses. A state groundwater permitting system was
authorized by the Georgia General Assembly in 1972
(Carriker, p. 25). It required a permit for withdrawal
of groundwater in excess of 100,000 gallons per day,
exempting agriculture. Permit provisions cover
timing of withdrawals, protecting against salt water
encroachment in coastal regions, adverse effects on
other uses, well depth, spacing, pumping levels, and
pumping rates.
Alabama law for water allocation and use has not
been the subject of significant legislation (Carriker,
p. 20). Such law, as exists, is based largely on case
law according to which rights to surface water are
attached to the ownership of riparian land. Riparian
owners cannot convey their rights, and they must use
the water only on riparian land. Alabama courts have
not clearly distinguished the riparian natural flow and
reasonable use theories, having, instead, used both
and sometimes mixed the two.
Implications of State Water Allocation Law
for ACF Issues
While both Alabama and Georgia adhere to
water allocation law grounded in the riparian
doctrine, that doctrine, as such, does not clarify which
of the two states controls use of water from the
Chattahoochee River, which defines the common
border between the two states throughout much of its
length. Shannonhouse,7 writing in 1962, found that
the "title to land bounded by a watercourse includes
the bed of the stream to the thread or center of the
main channel, nothing to the contrary appearing in
the landowner's instrument of title." If Shannonhouse
is correct, it would appear that, where it comprises
their common border, Alabama and Georgia have
equal claim to the Chattahoochee River (Erhardt, p.
207). However, the United States Supreme Court
ruled in Alabama v. Georgia [64 U.S. (23 How.) 505
(1859)] that the west bank of the Chattahoochee
River constituted the eastern border of Alabama. The
Court found that Georgia specifically intended to
maintain control of the river when it sold its rights to
all of its territory west of the Chattahoochee in 1802.
If the Court's decision in Alabama v. Georgia still has
the force of law, it may preclude Alabama from now
claiming any riparian rights to the Chattahoochee
River (Erhardt, p. 208).
Erhardt (p. 209) asserts that observation of the
actual use of the Chattahoochee River weakens any
argument favoring an exclusive right for Georgia to
control the river. While Georgia may have validly
claimed the Chattahoochee River to be wholly within
its territory, Alabama has always had the right of
navigation on the river. Moreover, riparian rights
typically accrue to the party owning land abutting a
watercourse, without reference to ownership of the
Water Wars: Water Allocation Law and the Apalachicola-Chattahoochee-Flint River Basin 7
bed of the watercourse. In any case, users along the
Alabama side of the Chattahoochee River have done
more than simply navigate the waterway: They have
been withdrawing water from it (a fact generally
known and acknowledged by all parties). Erhardt (p.
210) points to the "doctrine of adverse possession"
found in real estate law, whereby a right to use of
property may be established defacto by a pattern of
unchallenged use of the property over a period of
time. Finally, Erhardt points to a 1965 agreement
between the State of Alabama Water Improvement
Commission and the State of Georgia Water Quality
Control Board, in which the state of Alabama was
delegated regulatory authority over the discharge of
waste into the Chattahoochee River by an industrial
plant located on the Alabama side of the river.
In summary, the erosion over time of a strict
reading of the language by which Georgia ceded land
to Alabama, as well as Alabama's open use of the
Chattahoochee River as if it were a true riparian
system, strengthens Alabama's claim that it has
riparian rights to the Chattahoochee River (Erhardt).
Since the Apalachicola River, formed by the
confluence between the Chattahoochee and Flint
Rivers, is bounded on both sides by the state of
Florida, no similar doubts as to Florida's riparian
status seem to exist.
Methods for Addressing Interstate
Water Disputes
If it is granted that Alabama, Florida, and
Georgia share riparian status with respect to the ACF
River Basin, some basis is required for resolving
interstate disputes over the watercourse. Historically,
there have been three means by which interstate water
conflicts have been resolved: by congressional
apportionment; by the doctrine of equitable
apportionment, as applied through an exercise of
original jurisdiction by the United States Supreme
Court; and through the formation and operation of
interstate compacts.
Congressional Apportionment
The United States Constitution, Article I, Section
8, gives Congress the authority to apportion waters of
interstate rivers through its use of the power to
regulate commerce among the states (Erhardt, p.
211). The Supreme Court had originally held in
Kansas v. Colorado8 that congressional
apportionment of water rights was not valid under the
Constitution. This ruling was overturned over 50
years later, when the Court held in Arizona v.
California9that Congress' implied powers, especially
under the Commerce Clause, allowed for
Congressional apportionment of water rights in the
Colorado River. However, Congress has generally
refrained from applying this power to all interstate
water disputes. The only instance in which Congress
has apportioned interstate water rights since Arizona
v. California occurred in 1990, apportioning waters
between California and Nevada in the Truckee and
Carson Rivers as well as in Lake Tahoe.10
Congress' manifest reluctance to invoke the
Commerce Clause and intervene in interstate water
disputes has been attributed to the particular political
difficulties attending such action (Erhardt, p. 212).
Interstate water disputes are likely to focus on water
supplies that are crucial to long-term regional
economic development. Congressional intervention
would "destabilize the precept that each of the states
is equal in the control of shared water resources."11
Moreover, legislators from states not involved in the
dispute are reluctant to incur political risk by voting
to impose a water allocation that may be unpopular
with one or more disputant states. While
Congressional apportionment remains a valid option
for addressing disputes over the
Apalachicola-Chattahoochee-Flint River Basin, the
possibility of its use in this instance is remote.
The Supreme Court: Original Jurisdiction
and Equitable Apportionment
A second method for addressing interstate water
allocation disputes is rooted in the constitutional
authority of the Supreme Court over "controversies
between two or more States."12 Additional authority
was provided by Congress, stipulating that the Court
"shall have original and exclusive jurisdiction over all
controversies between two or more States."13
Water Wars: Water Allocation Law and the Apalachicola-Chattahoochee-Flint River Basin 8
Conflict of Laws and the "Doctrine of
Equitable Apportionment"
Once the Supreme Court decides to accept
original jurisdiction for litigation between or among
states, it must confront an issue of applicable law. If
the dispute is between two states that use the same
doctrine regarding their water rights, then local law
can be applied (Erhardt, pp. 212-213). However,
where the laws of the states differ, or where the Court
decides that the local law will leave one state
inequitably disadvantaged, it does not have to rule
consistently with local law. Instead, equity is stressed
over local rules (Erhardt, p. 213).
The doctrine of "equitable apportionment"
resulted from the Court's ruling in the case of Kansas
v. Colorado14 in 1907 (Vest, pp. 694-695). This case
originated as a "conflict of laws" case. The State of
Kansas brought suit in the Supreme Court to prevent
Colorado from diverting waters from the Arkansas
River. Kansas was a riparian rights state which vested
property rights in land owners to the flow of the river
"as it was accustomed to run" (an application of the
"natural flow" theory of riparian water rights).
Conversely, Colorado law adhered to the doctrine of
prior appropriation which allows upstream
landowners to "appropriate" the waters of a stream
"for the purpose of irrigating its soil." The Court
decided to apply "interstate common law" and held
that the two states were entitled to an "equitable
division of benefits" from the river.
Expanded Applicability of the Doctrine of
Equitable Apportionment
Although Kansas v. Colorado involved a conflict
of laws issue, the Court soon expanded the doctrine
of equitable apportionment to states which followed
similar laws in resolving their internal water rights
disputes. For example, in Wyoming v. Colorado
(1922), both states followed the doctrine of prior
appropriation. However, the Court applied a form of
the doctrine of prior appropriation that imposed on
both states a duty to use the water reasonably (Vest,
p. 696). Later in Nebraska v. Wyoming (1945), the
Court held that although "priority of appropriation is
the guiding principle" in equitable apportionment
cases, the Court will look to many factors in order to
reach a just and equitable result. In Connecticut v.
Massachusetts (1931), both states were riparian
rights jurisdictions. The Court held that "a
consideration of the pertinent laws of the contending
States" would be one of several factors the Court
would consider in an arriving at an equitable
apportionment (Vest, pp. 695-696). In New Jersey v.
New York (1931), the Court held that New Jersey, the
downstream state, could not require New York to
give up its right to use the river in order that New
Jersey would receive an undiminished flow, asserting
that "the effort always is to secure an equitable
apportionment without quibbling over formulas"
(Vest, p. 697).
Limiting the Applicability of the Doctrine of
Equitable Apportionment
Beginning with its decision in Washington v.
Oregon (1936), the Court limited the invocation of
the doctrine of equitable apportionment by requiring
that the complaining state adhere to a higher standard
of proving injury (Vest, p. 697). The Court concluded
that Washington had not shown injury by clear and
convincing evidence. In Colorado v. Kansas (1943),
the Court granted Colorado an injunction to prevent
Kansas users of the Arkansas River from bringing
further lawsuits against Colorado for violating Kansas
water right. The Court found that Kansas could not
show that Colorado's increasing water diversions had
"worked a serious detriment to the substantial
interests of Kansas."15 These two cases indicate the
Court's reluctance to adjudicate water rights disputes
between states and the Court's preference to have
such disputes settled pursuant to the Compact Clause
of the U.S. Constitution (Vest, pp. 697-698).
In these cases, the Court required proof of injury
in satisfying the ripeness requirement for
adjudication. States were required to prove injury by a
clear and convincing standard. In a more recent set of
cases, the Court has further expanded the burden of
proof requirements necessary to sustain an action for
equitable apportionment by extending the standard of
proof to allegations, in defense of diversions, that
reasonable conservation measures by the downstream
state could avert any injury to the downstream state
when an upstream state proposes to divert water from
a river (Sherk, p. 578; as cited by Vest, p. 699).
Water Wars: Water Allocation Law and the Apalachicola-Chattahoochee-Flint River Basin 9
A final limitation on the doctrine of equitable
apportionment is represented in Arizona v. California
(1963), in which the Court refused to apply the
doctrine of equitable apportionment because the
Boulder Canyon Project Act, passed by Congress,
created its own scheme of apportionment; and,
therefore, the Court ruled that it was without power to
decide the case (Vest, p. 699). The Court declined to
substitute its judgment for that of Congress.
Implications for Interstate Water Allocation
Disputes
One component of equitable apportionment is
that once a complaining state has proven its injury by
clear and convincing evidence, the burden shifts to
the state proposing the diversion to justify the
diversion by clear and convincing evidence (Vest, p.
701). The justification must show that the benefits of
diversion outweigh the detriment to other users or
that conservation measures will eliminate the
detriment. A second component of equitable
apportionment is that the Court will consider the laws
of the respective states as only one of many factors
relevant to resolving the dispute. In all the cases in
which the Court considered equitable apportionment,
it has weighed the benefits of diversion against the
detriments of opposing users. The doctrine of
equitable apportionment has been referred to as the
doctrine of "equitable priority."16In other words, the
Court determines if it is fair to give one user priority
over another.
Alabama's lawsuit against the Corps probably
could not have been brought as an action under the
original jurisdiction of the Supreme Court because
Alabama would probably be unable to prove injury by
clear and convincing evidence (Vest, p. 700).
Although the underlying dispute deals mainly with
the method by which the Corps manages the system,
the effect of Alabama's complaint could be to deny
Atlanta the use of water resources it may rightfully
be able to use. In order to avoid this effect, the State
of Georgia could consider invoking the original
jurisdiction of the Supreme Court to have the water
equitably apportioned. Presumably, Georgia would
then be required to justify the diversion by clear and
convincing evidence.
In any case, there is doubt as to whether the
Court is well-suited, institutionally, to render
decisions about equitable priority among states.
According to some legal scholars, the Supreme Court
does not have the expertise needed to sufficiently
examine the criteria it has established.
"The Supreme Court as an institution is not
equipped to deal with the mass of technical
data introduced into evidence in equitable
apportionment litigation .... The technical
evidence can tell us what supply we have to
divide, how much reservoir evaporation to
expect, the amount of return flow, and the
point at which it returns to the stream.
Evaluating conflicting evidence on these
points requires the help of a trained technician,
and the tradition of the courts tends to restrain
them from securing such help."1
A state considering litigation before the Supreme
Court as court of original jurisdiction is likely to be
inhibited by the particular challenges and limitations
inherent in application of the doctrine of equitable
apportionment. These include the high standards of
proof of injury required to establish ripeness, the
costs of litigation before the Supreme Court, and the
difficulty of representing complex and technical
information in defense of states' claims (Erhardt, p.
214).
Federal-Interstate Compacts
Interstate Compacts and the Compact Clause
A third method for addressing interstate water
disputes is the interstate compact. A state may enter
into a compact with another state pursuant to the
Compact Clause of the Constitution which provides
that "no State shall without the consent of Congress .
. enter into any Agreement of Compact."18
Hinderlider v. La Plata Co.19 was the first case in
which the Supreme Court was asked to apply the
Compact Clause to interstate water disputes (Vest, p.
702). In this 1938 decision, the Court held that a
judicial decision was not the sole remedy for
interstate water disputes. It found that the
Constitution provided two means of adjusting
interstate controversies: legislative compact and
judicial decisions (Vest, p. 703). The Court also
Water Wars: Water Allocation Law and the Apalachicola-Chattahoochee-Flint River Basin 10
found that resorting to litigation is never essential
unless states are unable to reach an agreement or
unless Congress refuses to consent to a compact. The
Court ruled that states have the power under the
Compact Clause to divide the flow of a river, and that
once the states have apportioned interstate water
through a compact and Congress has consented, the
compact is binding on all citizens of the respective
states.
In Texas v. New Mexico,20 the Court again ruled
that, unless the compact is unconstitutional, "no court
may order relief inconsistent with its express terms."
The Court added, however, that it would not construe
a compact, in absence of an explicit provision to the
contrary, to "preclude a state from seeking judicial
relief to resolve disputes." Consequently, the Court
allowed litigation over the terms of the compact to
proceed (Vest, p. 703).
Since Congress first approved a water compact
dealing with the Colorado River in 1922, it has
approved at least thirty other compacts dealing with
various interstate water rights issues (Copas, p. 721).
Characteristics of Interstate Compacts
A key issue underlying the negotiation of
interstate compacts pertains to prior appropriation of
water for future use. States attempt to anticipate
future uses of water and apportion rights accordingly
(Copas, p. 719). The enforcement mechanism is an
important aspect of any compact, and can take one of
two forms.
The first model uses a prescriptive mechanism
that provides guidelines for state agencies to
implement, delimiting the scope of the arrangements
to control the use of the resource and to control the
activities of the management agencies themselves. In
effect, the agreement becomes the enforcement
mechanism for apportioning water rights between the
states.
A second approach is the use of a standing
interstate commission or agency (Copas, pp.
719-720). Such commissions consist of
representatives of each state involved and may
include the federal government. Commissions, as
permanently standing bodies, can accumulate
information, remain constantly in negotiation, and
adapt to changing circumstances. These commissions
can retain professional staff, centralizing the
collection of information and allowing for resulting
efficiencies in communication and negotiation among
parties.
Regional Approaches to Water Compacts
Water allocation issues in the Alabama, Florida,
and Georgia tri-state area resemble those facing
states in other regions of the United States. The
Colorado River and the Delaware River both pass
through several states, each with conflicting claims to
the waters. These conflicting claims have led to the
development of three main region-based compacts to
deal with water apportionment (Copas, p. 724).
These are the Colorado River Compact,21 the Upper
Colorado River Compact,22 and the Delaware River
Basin Compact.23
The Colorado River Compact. The Colorado
River Compact of 1922 is based on the notion of
"equitable division and apportionment of the use of
the waters of the Colorado River system" and
beneficial consumptive use (Copas, p. 725). It
provides 7.5 million acre feet of water per year for
economically beneficial use to the states of both the
upper and lower basin. The compact preserves
"present perfected rights" in the beneficial use of the
Colorado River, thus reducing the uncertainty of past
users. The Compact lacks any kind of standing
commission, and any disputes must be addressed on
an ad hoc basis. The lack of a standing commission
increases transaction costs when a dispute must be
addressed. Commissioners must be appointed,
negotiations organized, information gathered, and
ultimately, a new agreement must be worked out. The
Colorado River Compact requires the ex officio
cooperation of the U.S. Department of the Interior's
Bureau of Reclamation and the United States
Geological Survey. However, no agency of the
United States government was signatory to the
compact, and nothing in the terms of the agreement
addresses the claims of the federal government.
Exclusion of the United States as a signatory is said
to limit the effectiveness and efficiency with which
the compact addresses water allocation issues in the
Colorado River Basin.
Water Wars: Water Allocation Law and the Apalachicola-Chattahoochee-Flint River Basin 11
The Upper Colorado River Compact. The Upper
Colorado River Compact exists specifically to
allocate the 7.5 million acre feet of water provided to
the upper river basin in the Colorado River Compact
(Copas, p. 726). Rather than set fixed numbers, the
Upper Colorado River Compact grants to each
signatory state a percentage of the stream flow. This
apportionment works in conjunction with Article III
of the Colorado River Compact to maintain exact
proportions, depending on water supplies in the
Colorado during times of surplus and shortage. The
Upper Colorado River Compact provides for the
formation of the "Upper Colorado River
Commission." The Commission is authorized to
adopt rules and regulations, conduct studies of stream
flows and uses, and determine the quantity of the
consumptive use of water apportioned by the
compact. The Commission represents a mechanism
allowing for the flexible application of the terms of
the compact. Transactions costs are lowered as
long-standing commissioners work together, share
information equally available to all, and are available
to negotiate anew as circumstances require. The
Upper Colorado River Compact requests the
President to appoint a commissioner, but, again, the
federal government is not a signatory to the compact,
and the compact does not bind the federal government
to any set level of consumptive water use. In fact, the
compact stipulates that nothing within the statute can
affect the rights or powers of the United States
government in the waters of the upper Colorado river
system. The exclusion of the United States
government as a signatory is deemed to limit the
effectiveness of the compact at addressing water
allocation issues.
The Delaware River Basin Compact. The
Delaware River Basin Compact24 resulted from
water supply concerns for the projected 40 million
people who will live within the basin by the year 2010
(Copas, p. 728). The Delaware River Basin Compact
represents one of the first attempts to create a truly
integrated water allocation mechanism. It
accomplishes this by including the federal
government as a signatory to the pact, thus replacing
the overlapping authority of 43 state agencies; 14
interstate agencies; and 19 federal agencies, with one
commission given broad powers for administration of
the river basin. By granting generous powers to the
Commission and by providing for the active
participation of the federal government, the compact
assures a regional approach.
Arguments for a Federal-Interstate Compact
The virtues of the federal-interstate compact, as
illustrated by the Delaware River Compact, are
typically identified with reference to shortcomings of
interstate compacts that do not adequately integrate
the federal government into their structure and
conduct.
The federal government has neither been a
party to the traditional compacts nor been
formally committed in any way to support the
compact programs .... The federal
government in those situations appears to be
little more than an honored observer, without
obligation to see that federal plans or
programs in the region are coordinated to the
maximum extent feasible with those of the
states.25
Critics of interstate compacts question the
commitment of individual states to the regional
approach, noting that the participation of member
states has been cautious and hesitant, concerned
primarily with preservation or promotion of their
individual and parochial interests (Erhardt, p. 224).
However, federal-interstate compacts provide states
with the opportunity to define their own roles, the
roles of other member states, and the role of the
federal government. As an on-going process, it
enables each party to acquire some control through
continuous monitoring of the other parties, and offers
a comparatively attractive method by which to
resolve interstate water rights disputes as they arise.
Otherwise, conflicts end up in court, and the parties
are subject to increased costs, lengthy delays, and
fewer opportunities for direct negotiation.
The
Apalachicola-Chattahoochee-Flint
River Basin Compact
In early 1997, Alabama, Florida, and Georgia
entered into the Apalachicola-Chattahoochee-Flint
(ACF) Compact [Public Law Number 105-104, 111
Statute 2219 (1997)], and on November 20, 1997,
Water Wars: Water Allocation Law and the Apalachicola-Chattahoochee-Flint River Basin 12
President Bill Clinton signed the legislation that
provided congressional approval of the compact
(Moore, p. 7). The ACF compact contains agreement
to negotiate an equitable apportionment of the surface
waters of the ACF basin. The compact does not
contain an allocation itself; rather, the compact
establishes a Compact Commission for the basin,
which can approve an allocation formula for the next
50 years. Each party to the compact has a voting
member of the commission, and approval of any
allocation must be unanimous.
The ACF and the Federal Commissioner
The language of the ACF Compact is based in
part on the Delaware River Basin Compact (Moore,
p. 7). While the Delaware Compact provided a
template, the ACF Compact differs in certain aspects
from that agreement. Most notably, the ACF
Compact does not include the federal government as a
signatory to, and full voting member of, the
Commission. While early negotiations leading up to
the ACF agreement included the federal government,
represented by the Department of Justice, the states
initially agreed on compact language that did not
include a major role for the federal government. The
Department of Justice and its Congressional allies
threatened to withhold Congressional approval of the
ACF Compact unless certain recommendations were
incorporated into the language of the compact.
Accordingly, the final compact provided for a
non-voting federal member on the Compact
Commission.
The federal commissioner cannot vote (Moore,
p. 7); however, the compact stipulates that, if the
state commissioners agree on an allocation, the
federal commissioner then has 255 days to concur or
"nonconcur" in the allocation. If the federal
commissioner does not concur, then he must set forth
his reasons in writing. According to the compact, "the
reasons for nonconcurrence shall be based solely
upon federal law." The compact also instructs the
federal government and its agencies "to the maximum
extent practicable, to exercise their powers, authority,
and discretion in a manner consistent with the
allocation formula, so long as the exercise of such
powers, authority, and discretion is not in conflict
with federal law."
Taken together, these provisions suggest that the
federal commissioner holds an effective veto over
any allocation formula that is not in compliance with
federal law.
Allocation Negotiations Under the
Compact
The compact commission created a negotiating
committee to negotiate and recommend an allocation
formula to the commission for approval. The
negotiators from each state have met approximately
monthly since February 1998. The compact
established a deadline of January 1, 1999, for
reaching agreement on an allocation formula (Moore,
p. 8). However, the compact also permits the states to
extend the deadline for up to one year, and in
December 1998, with no agreement in sight, the
states agreed to the maximum extension, giving
themselves until January 1, 2000, to reach
agreement.
The negotiations have included broad and
continuous stakeholder participation (Moore, p. 8).
However, stakeholder input has been largely informal
to this point. While the compact provides for a formal
"public comment period," that opportunity arises only
after the states have reached agreement.
In March 1998, negotiators from each state
presented a statement of "principles" on which they
would base an allocation formula (Moore, p. 8).
These statements of principles revealed some early
differences among the states in perceptions of how
water resources in the basin should be shared.
Alabama and Florida argued that consumptive uses
should be defined and allowable limits on
consumptive uses should be set. In contrast, Georgia
argued for state sovereignty, resisting external limits
on consumption patterns, provided minimum state
line flows are delivered.
The states also disagreed on how the negotiations
should proceed. Alabama urged the states to adopt a
framework for the allocation formula and proceed by
establishing acceptable definitions (Moore, p. 8).
Georgia insisted that the states move directly to the
substantive issues of reservoir releases and minimum
river flows, leaving definitions and formalities to be
Water Wars: Water Allocation Law and the Apalachicola-Chattahoochee-Flint River Basin 13
worked out after the parties had reached an agreement
in principle.
Given its choice of simulation model by which to
generate information to guide allocation decisions,
Georgia argued that the large federal reservoirs
should be operated "as if drought were imminent,"
keeping them full until drought conditions require
releases to supplement river flows (Moore, p. 8).
Georgia summarized this suggestion as a proposed
minimum flow that would always be matched or
exceeded. Georgia's negotiating position reflects its
preoccupation with satisfying the water demands of
its rapidly growing Atlanta metropolitan area.
Alabama and Florida opposed this approach.
Florida wanted assurances that it would receive a
minimum flow only on very rare occasions, proposing
instead that reservoirs be operated to mimic the
"natural flow regime." Florida is explicit about the
environmental and ecological basis for its negotiating
position (Moore, p. 9). Florida has received help
from the Nature Conservancy in developing its
proposal, and the Nature Conservancy has promoted
the natural flow regime in other river basins. The
Nature Conservancy explains the natural flow regime
as one that propagates the natural cycles of flood and
drought through the basin, with the frequencies and
durations experienced over the period of record.
Florida places great economic value on the "natural
flow regime," arguing that oysters in the
Apalachicola Bay, which account for 90 percent of
Florida's oyster production, will benefit from the
natural flow regime.
Alabama's proposal focuses on using the federal
reservoirs as Alabama claims they were originally
intended (Moore, p. 9). The reservoirs in the ACF
were planned in 1945, when the 76th Congress
authorized the Apalachicola-Chattahoochee-Flint
Rivers navigation project. Four large reservoirs were
built on the Chattahoochee River, primarily for
navigation purposes. Today, however, the reservoirs
are very important for recreation and for domestic
water supplies. The Corps has used its discretionary
authority to permit water w ithdra\ als and to take
recreational interests into account in the operation of
the federal reservoirs. As the demands on the federal
reservoirs have increased, navigation has suffered.
Alabama's proposal points to the original purposes of
the reservoirs to argue that they should not be kept
full at the expense of navigation and the associated
higher water flows.
By December 1998, Alabama, Florida, and
Georgia had accepted a common format for the
allocation agreement, and each state had issued a full
proposal (Moore, p. 10). Several issues remained
unresolved, however, including whether to provide
for an interim allocation, compensation for adversely
affected parties, verification and enforcement, and
basic reservoir operating questions. Moreover, the
states had not agreed on the choice of simulation
models by which to generate information needed to
evaluate various stream flow and reservoir
management protocols. One observer believes
progress has been slow because the public nature of
the negotiating sessions tends to restrict the
candidness of the negotiators and limits their
incentives to compromise (Moore, p. 9).
The National Environmental Policy Act and
the Federal Commissioner
In 1998, President Clinton named Lindsay
Thomas as federal commissioner for the compact
(Moore, p. 7). Thomas is a former Georgia
congressman and president and CEO of the Georgia
Chamber of Commerce.
Commissioner Thomas was careful to avoid
debate or comment on the various allocation
proposals advanced during the first rounds of
negotiations. However, his office and a dozen federal
government agencies maintain a keen interest in the
negotiations. Their interest is structured in large part
by requirements set forth in the National
Environmental Policy Act26 (NEPA) of 1969. NEPA
requires that the federal commissioner prepare an
Environmental Impact Statement (EIS) and a Record
of Decision before he issues a letter of concurrence or
nonconcurrence with respect to any agreement
negotiated by the three states that are party to the
compact (Moore, p. 10). The United States Army
Corps of Engineers has been designated the lead
agency for purposes of preparing the EIS, although
more than a dozen federal agencies are participating
in the process.
Water Wars: Water Allocation Law and the Apalachicola-Chattahoochee-Flint River Basin 14
The Corps immediately recognized that
analyzing the environmental, social, and economic
impacts of a 50-year water allocation formula
covering large portions of three states would be a
tremendous undertaking, and that the 255 days
provided by the compact for the federal commissioner
to concur or nonconcur with a selected allocation
formula will not be enough time to complete an EIS
for each formula (Moore, p. 10). The Corps has had
to move ahead with the NEPA process on a schedule
parallel to the negotiations themselves. Accordingly,
the Corps is analyzing the impacts of a decision that
will respond to an as-yet-unknown allocation formula.
To address this problem, the Corps has prepared
a draft EIS that evaluates a high-, medium-, and
low-flow scenario (Moore, p. 10). The Corps'
analysts hope that these flow conditions will
"bracket" the actual formula developed by the
Compact Commissions. The lack of specificity under
this approach leads the Corps to describe this NEPA
document as a "programmatic EIS," which takes a
broad look at the overall impacts, leaving local detail
regarding the implementation of an allocation
agreement to future NEPA investigations which will
take the form of new, site-specific environmental
assessments.
Another factor bearing upon the complexity of
the EIS requirements stems from the sheer number
and diversity of federal government agencies
involved in the NEPA process (Moore, p. 10). These
include the Environmental Protection Agency, the
Fish and Wildlife Service, Southeastern Power
Administration, U.S. Geological Survey, Department
of Agriculture, U.S. Forest Service, U.S. Park
Service, Maritime Administration, and the National
Oceanic and Atmospheric Administration. Each
agency has a different interest in the allocation and
each is identified with different stakeholder groups
and with different authorizing and appropriations
committees in Congress.
Current Status
The January 1, 2000, deadline came and went
without significant progress in negotiations. The
failure to complete negotiations was, perhaps, not
surprising, given the limited progress on substantive
issues from the first months of negotiation in 1998.
At one point, Georgia indicated that it may proceed
with construction of the proposed reservoir in western
Georgia that spurred controversy in the first place
(Moore, p. 66). While all three states have announced
a preference for avoiding litigation, each has said it is
prepared for litigation if necessary. Meanwhile, the
commissioners have voted another one-year
extension of the deadline for completing the
negotiations, and have contemplated engaging the
services of a professional mediating team.
Conclusion
One observer has described the
Apalachicola-Chattahoochee-Flint River Basin
Compact negotiations as the Comprehensive
Study/Interstate Compact/Negotiated Allocation
Formula approach (Moore, p. 66). If negotiations on
formulae for allocating the waters of the river basin
eventually succeed, this approach may form the new
paradigm for resolving interstate water disputes,
especially in the eastern United States.
Despite the slow start experienced by the
negotiating teams, the ACF process is a potential
model for resolving future water disputes for several
reasons. First, the Supreme Court has indicated its
preference for this kind of effort, and has shown an
unwillingness to assume original jurisdiction and
preside over judicially determined equitable
apportionment. Second, the ACF and ACT models
have included a comprehensive study of the water
resources of the two basins. As demands for domestic
water supplies continue to grow, and as competing
demands for recreational, environmental, and
commercial fishery amenities of the resource
intensify, complex water resource studies will be
required in order to generate information by which to
support water management protocols. Third, the
ACT/ACF Compacts may have identified a viable
role for the federal government. Some states oppose
voting membership on a Compact Commission for the
federal government. Yet the federal government is
obliged, by numerous and diverse statutory mandates,
to play an instrumental role in decisions concerning
the management and use of water, and must therefore
be involved in decisions concerning the interstate
allocation of water. Therefore, the non-voting federal
commissioner, who must concur in the ultimate
Water Wars: Water Allocation Law and the Apalachicola-Chattahoochee-Flint River Basin 15
allocation decision of the states, may represent a
workable compromise. In any event, the ACT/ACF
process represents the most recent interstate compact
negotiations, as well as the most complex. Any future
efforts to craft a solution mechanism for interstate
water allocation issues will benefit from the
ACT/ACF experience.
Progress has been made, regardless of the status
of negotiations. The Comprehensive Study
represents the region's most complete data base of
hydrologic information. It will be the single, most
complete source for information on water demand
from all uses, the economic value placed on these
uses, and projected changes in patterns of water use
over the next 50 years (Moore, p. 67). And finally,
the representation of environmental concerns to be
served by a "natural flow" criteria for controlling
levels and flows in the rivers is unprecedented in the
history of interstate compact negotiations.
References
Brion, Denis J. A Compendium of Water
Allocation Law in the Eastern United States.
Lexington, VA: Washington and Lee University
School of Law, 1979.
Carriker, Roy R. Water Law and Water Rights in
the South: a Synthesis and Annotated Bibliography.
Mississippi State, MS: Southern Rural Development
Center Synthesis-Bibliography Series No. 16,
November 1985.
Copas, David N., Jr. "The Southeastern Water
Compact: Panacea or Pandora's Box? A Law and
Economics Analysis of the Viability of Interstate
Water Compacts." William and Mary Environmental
Law and Policy Review 21, no. 3 (Summer 1997):
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Cox, William E. "Water Law Primer." Water
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Erhardt, Carl. "The Battle Over 'The Hooch':
Federal-Interstate Water Compact and the Resolution
of Rights in the Chattahoochee River." Stanford
Environmental Law Journal 11 (1992): 200-228.
Moore, Grady C. "Water Wars: Interstate Water
Allocation in the Southeast." Natural Resources and
Environment 14, no. 1 (Summer 1999): 5-10, 66, 67.
Vest, Robert E. "Water Wars in the Southeast:
Alabama, Florida, and Georgia Square off over the
Apalachicola-Chattahoochee-Flint River Basin."
Georgia State University Law Review 9, no. 3 (April
1993): 689-716.
Additional Notes:
3. Vest cites Long-Term Water Needs of the Atlanta Region from
the Apalachicola-Chattahoochee-Flint River Basin and the Operation
oj )am andLake Laner inMeeting Those Needs, 1991:
Hearing Before the Subcommittee on Water Resources of the House
Committee on Public Works and Transportation, 101st Congress, 2d
Session, 1990.
4. Vest cites, Downstream Impacts of Water Allocation and
Management Along the Apalachicola-Chattahoochee-Flint River Basin
and the Alabama-Coosa River Basin: Hearing Before the Subcommittee
on Water Resources of the House Committee on Publc Works and
Transportation, 101st Congress, 2d Session, 1990.
5. Erhardt cites Memorandum ofAgreement by, between, and among the
State of Alabama, the State ofFlorida, the State ofGeorgia, and the
United States Department ofthe Army, January 3, 1992 (on file with the
,v Journal).
6. Apalachicola-Chattahoochee-Flint River Basin Compact, Pub. L. No.
105-104, 111 Stat. 2219 (1997); and Alabama-Coosa-Tallapoosa River
Basin Compact, Pub. L. No. 105-105, 111 Stat. 2233, 1997.
7. Shannonhouse, Royal G. "Common Law Rules Regarding the Use of
Surface and Groundwater in the Southeastern States." Water Law and
Policy in the Southeast: Papers Prepared for Presentation at the
Southeastern Water Law Conference, University of Georgia, November
7-10, 1961, 1962, p. 7. (As cited in Erhardt, p. 207).
8. 206 U.S. 46 (1907). See also, Copas, page 714.
9. 373 U.S. 546 (1963). See also, Copas, page 714.
10. Public Law Number 101-618, 104 Stat. 3289, Title II(1990).
11. Sax, Joseph L., Robert H. Abrams, and Barton H. Thompson, Jr. Legal
Control of Water Resources: Cases and Materials, second edition,
1991, p. 137. (As cited in Erhardt, p.
12. U. S. Constitution, Article III, Section 2, Clause 1.
13. 28 U. S. Code, Section 151(a)(1) (1993 & Supp. 1997).
14. 206 U.S. 46 (1907).
15. 320 U.S. 383 (1943).
16. Vest, page 701, cites: Sherk, George W. "Equitable Apportionment
after Vermejo: the Demise of a Doctrine." Natural Resources Journal
29 (1989): 565.
Water Wars: Water Allocation Law and the Apalachicola-Chattahoochee-Flint River Basin 16
17. Erhardt, page 213, cites: Meyers, Charles, and A. Dan Tarlock. Water
Resource Management, second edition, 1980, pp. 401-402.
18. U.S. Constitution, Article I, Section 10, Clause 3.
19. 304 U.S. 92, 104 (1938).
20. 462 U.S. 554 (1983).
21. Colorado River Compact, Colorado Revised Statutes Annotated,
Section 37-61-101 (West 1990).
22. Upper Colorado River Compact, Colorado Revised Statutes Annotated,
Section 37-62-101 (West 1990).
23. Delaware River Basin Compact, Delaware Code Annotated, Title 7,
Section 6501 (1974).
24. Public Law Number 87-328, 75 Stat. 688 (1961).
25. Erhardt, page 224, cites: Tarlock, A. Dan. Law of Water Rights and
Resources, 1991, pp. 94-95.
26. 42 United States Code, Sections 4321 et seq.
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