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. Page 10 . LITIGATION UPDATE Em::h qu01ter, WS analyus court decisions that add new or reaffinn old legal principles that shape westem water policy, The V,S, Supreme Court ruled on the Canadian River Compact. A V,S, district court declared invalid the BuRec's 1987 acreage limitation regulations because BuRec did not prepare an environmental impact statement. Canadian River Compact Oklahoma v, New Mexico In a 5-4 decision, the V,S, Supreme Court ruled that all waters stored below Conchas Dam are included in New Mex- ico's storage limitation, F/lds: The Canadian River flows through New Mexico and the Texas Panhandle before entering Oklahoma, In 1952, Congress apportioned the river's waters among the three states when it approved the Canadian River Compact. Vnder Article IV, New Mexico has free and unrestricted use of all waters "originating" in the river's drainage basin above Conchas Dam, It also has free and unrestricted use of all waters "originating" below Conchas Dam, with a limitation on conse,rvation storage of 200,000 af, In 1963, New Mexico constructed Vte Dam and Reservoir downstream orConchas Dam with an initial capacity or 109,600 af, In 1982, New Mexico enlarged capacity at Vte to 272,800 af .. subsequent silting has reduced capacity to 237,900 af, Texas and Oklahoma sued New Mexico, contending that the enlarged capacity of Ute violated the compact's 200,000 af storage limit, In the spring or 1987, the Canadian River flooded above Conchas Dam, resulting in a spill or about 250,000 af over the Dam, By summer 1988, Ute Reservoir had 232,000 af of water in storage, New Mexico claimed that 180,900 af or the stored water was spilled flood water which should not he counted toward its 200,000 af storage limitation, Texas and Oklahoma countered that the actual water stored should be counted in the administration or the compact. Issuer. (1) Does the compact impose a limitation on physical storage capacity or on the amount of water stored? (2) Do waters originating in the basin above Conchas Dam but reaching the mainstream below Conchas Dam because or spills or releases count in New Me,oco's storage limitation? Decision: (1) The Court round that the compact clearly intended to limit the amount of water stored, not storage capacity, (2) Yes, The majority relied upon contemporary evidence that the parties negotiating the compact believed that storage limitations were not necessary ror waters originating above Conchas Dam because that area was ruUy developed, Therefore, the majority reasoned, future water development along the Canadian River in New Mexico would be below Conchas Dam, The parties believed that tbe 200,000 af or storage would be suFlicient ror future needs, Any water New Mexico stored in excess oFthe 200,000 af limitation should have . flowed through Vte Dam ror use in Texas and Oklahoma, In a dissent joined by O'Connor, Scalia, and Kennedy, Chief Justice Rehnquist argued tbat tbe majority changed the terms or the compact. The term "originate" means "to arise" or "come into existence." Therefore, waters above Conchas Dam that flow downstream should not be part or the storage limitation, ImpliaItUHI: The Court remanded tbe case to the special master ror a recommendation on wbether certain stored waters were needed for desilting purposes (compact exempts such storage from the limitation), If tbe Court eventually enters a decree that New Mexico violated the compact, the special master must determine the extent or injury to Texas and Oklahoma and appropriate remedies, Acreage Umitation Rules Natural Resoun;es Defense Council v, Duvall A V,S, District Court judge ror the Eastern District of California held that BuRec violated the National Environ- mental Policy Act (NEPA) when it issued rules implementing the Reclamation Reform Act without ftrst preparing an envi- ronmental impact statement (EIS), Fads: When promulgating rules on the 1987 acreage limitation, BuRec issued an environmental assessment with a rIDding of no significant impact ror the regulations, The BuRec reasoned that (i) rarmers are unable to obtain subsidized water will switch to groundwater, but (ii) their increased pumping would be offset by a decrease in pumping by other parties who would obtain the abandoned rederal project water, I:uuu: Was the rIDding or no significant impact justified? Vnder NEPA, in determining whether a EIS should have been prepared, the court must decide whether the agency's decision was reasonable, Decision: No, An EIS should have been prepared, The judge did not rIDd the BuRec's decision fuJIy informed and weU considered, He observed: "tbe presumption that farming operations whicb had to switch to ground water would use the same amount as when they were able to use subsidized surrace water is whoUy unsupported and appears insupportable," "If, as appears likely," the judge argued, "the cost of ground water is greater than the cost or surrace water, rarmers are as likely to switch to crops than use less water, or convert to dry land farming as switch to ground water." ImpliaItUHI: An EIS must be prepared, BuRec must consider water conservation alternatives, consider the environ- mental erfects of the reorganization or large rarms into smaller units or the retirement of marginal lands, and the adverse effects of increased groundwater pumping, 0 . Sl.EW 11[[ WATER STRATEGIST Published by Stratecon, Inc, P,O, Box 963, Claremont, CA 91711 (714) 621-4793