WSP02891

• File Number: 8407.400
• Description: Platte River Basin - River Basin General Publications - Nebraska
• State: NE
• Basin: South Platte
• Water Division: 1
• Date: 4/1/1983
• Author: Nebraska Natural Res
• Title: Policy Issue Study on Selected Water Rights Issues - Interstate Water Uses and Conflicts
• Water Supply Pro - Doc Type: Report/Study

With the National Wildlife Federation, the
National Audubon Society and others, the State
of Nebraska filed suit against REA and the Corps
to block the project. They alleged that REA and
the Corps had failed to comply with Section 7 of
the Endangered Species Act and had violated
the National Environmental Policy Act of 1969.
The federal District Court for the District of
Nebraska ruled that there had been a violation of
Section 7.18 Subsequently, the Director of the
U.S. Fish and Wildlife Service issued the opinion
that the Grayrocks project would likely jeopar-
dize the continued existence of the endangered
whooping crane and adversely affect its critical
habitat along the Platte River in Nebraska. The

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alternative they recommended was the estab-
lishment of an irrevocable trust agreement with
sufficient income to provide for the protection of
the critical habitat of the whooping crane.
The lawsuit was eventually settled out of court
with, among other provisions, certain guaranteed
releases from the reservoir to the North Platte
River, a maximum amount of water that could be
consumed by the power complex set at 23,250
acre-feet per year, and a trust fund set up to
protect the wildlife habitat of the whooping crane
on the Platte River.

OPPORTUNITIES FOR DEALING
WITH CONFLICT

The foregoing exam pies of water development,
and factors influencing such development,
emphasize the fact that the management of
interstate water resources involves multi-state

2-4

regions. They also suggest, in part, a reluctance
on the part of states to relinquish sovereign
rights to regulate, without interference, water
use activity within their borders. As one author
was inclined to comment, "The Western states
have always guarded their waters jealously.,,19
The physical and climatological characteristics
of most states make such an attitude almost
inevitable. However, it is also this attitude which
is for the most part the source of much of the
conflict that exists with regard to interstate water
use.
There are three commonly recognized
methods of resolving interstate disputes: (1)
adjudication, (2) congressional legislation, and
(3) voluntary agreement. This section will
address these three methods available for re-
solving interstate conflicts and allocating inter-
state waters. There are a numberof problems and
disadvantages to utilizing these existing mech-
anisms, particularly in the area of interstate water
use. Some of these limitations will also be identi-
fied in this section.

Adjudication

The adjudication or litigation of disputes
between two or more states always occurs in the
United States Supreme Court. The judicial power
of the Supreme Court extends "... to Controver-
sies between two or more States....[and in] all
cases ... in which a State shall be Party, the
Supreme Court shall have original jurisdict-
ion.,,20 The Congress has further granted to the
Supreme Court exclusive jurisdiction over dis-
putes between states.21 This means that a law-
suit between two states can be instituted and
heard in the first instance in the highest court in
the land. This privilege, however, extends only to
states acting in their official capacity; the citizens
of one state are prohibited (barred) by the
Eleventh Amendment to the United States Con-
stitution from suing another state.22 Water users
other than states may not sue in the original
jurisdiction of the United States Supreme Court.
They may, however, be able to bring suit in a state
court or federal district court.
There are a number of factors which may make
litigation an unattractive alternative, particularly
in state and lower federal courts. It's availability
"as a last resort," however, gives this method of
resolving interstate disputes a coercive value in
encouraging states to try other methods of con-
flict resolution first. The threat of suit between
two states in the United States Supreme Court is
an even more serious matter. There have been
relatively few interstate water disputes settled in
this manner, indicating perhaps a preference for
other modes of settling disputes.