The Seven states of the Colorado River worked hard to resolve a climate-aggravated water shortage within the context of an antiquated
legal infrastructure that exacerbates the problem. On May 20, they signed the Drought Contingency Plan. “[T]he seven states and Mexico were able to get together and
agree on voluntary restrictions. These
were not imposed—the states agreed to them.
They set aside water law, water rights, and priority systems, and thought about what they needed to do to protect the system. I think it’s a significant and remarkable
achievement and a real demonstration of what we’re going to need to do in the
future,” said Jeff Kightlinger, General Manager of the Metropolitan Water District of Southern California. The difficult legal infrastructure the states set aside incorporates the
nineteenth century notion of water-rights priorities based on time of the
respective establishment of each, an interstate agreement (Colorado River
Compact) originally premised upon fear of exercise of state-law-based rights,
the interstate significance of which was recognized by a 1922 U.S. Supreme
Court decision (Wyoming v. Colorado) decided by an ethically compromised justice. Constitutionally-recognized
principles, like equal protection under the Fifth and Fourteenth Amendments of
the U.S. Constitution, suggest a more even approach. Moreover, this
self-imposed, antiquated approach is inconsistent with the water-sharing ethic
ensconced in most of western civilization’s historical and contemporary water
jurisprudence, as well as that described in international law. The states were well advised to set aside this legal infrastructure and do the better thing for their constituents.
J. Davenport
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