AppendixD

• Basin: Statewide
• Title: SWSI Phase 1 Report - Appendix D
• Date: 11/15/2004
• Author: CWCB
• SWSI - Doc Type: Final Report

Any evaluation of the supply of water available far use to the citizens of Colorado must, of necessity,
include a study of the laws which govern the topic. This evaluation must concern itself not only with
state law, which tells the water administrator how to distribute water as between citizens of the state,
but must also consider the ramifications of constitutional law and international law, for Colorado is
so situated that the streams arising within her borders are vital to the economics of eighteen other
states and the Republic of Mexico.
The consideration of geography alone is enough to make Colorado a prospective defendant in any
interstate water case, but consideration of economics appears to be even more important. One-
twentieth of the land in Colorado is under irrigation, a proportion which exceeds any other state.
Considering irrigation by surface water only, Colorado has half again as much land under irrigation
as any other state. The ability to protect and defend this huge portion of the state's economy is of
major importance to Colorado.
Colarado is directly involved in one international treaty, nine interstate compacts, two U.S. Supreme
Court decrees, and one interstate agreement, but before a discussion of the treaty, compacts, and
decrees, it would seem appropriate to discuss the mechanisms available for the solution of
controversies between states.
Three methods are available in the United States for this purpose:
1. Direct legislation by Congress,
2. A suit by one state against another in the United States Supreme Court,
3. A compact between states approved, where necessary, by Congress.
The first of these methods is very limited in scope, for while Congress has absolute power in
administration of territories, its ability to interfere between states is permitted only within its
constitutional powers, which in themselves are very limited.
The second method is granted by Article III, Section 2 of the U.S. Constitution, wherein it grants
each state the right to seek redress from legal wrongs before the Supreme Court. This method is a
civilized substitution for war between the states, and often the results are as unpredictable. Two
major drawbacks can result from this course. The first is the dif~culty in securing execution of a
judgment against a state since each is a sovereign body not subject to the laws and actions of the
other, necessitating some kind of Federal intervention for enforcement. The second drawback, and
perhaps the most insurmountable, is that not all matters in dispute between states are capable of
judicial determination.
The third method of resolution of interstate controversies is provided for in the U.S. Constitution in
Article I, Section 10, Clause 3, whereby it is stated that, ". ., no state shall, without the consent of
Congress, ... enter into any agreement or compact with another state, or with a foreign power". This
method provides the advantage of lengthy discussion of the controversy outside of a formal court
environment by individuals who are knowledgeable on the topic, leading to a mutual understanding
of problems, and hopefully, a mutually beneficial solution in the form of a compact.