Water Writes (Rights)

Yesterday I was listening to an old CSPAN podcast of a Supreme Court water rights argument in the
case of Kansas v. Nebraska and Colorado.  There are some interesting points that arise in the case as you listen to the SC Justices integrate the prosecution or petitioner and the defendants.

The Case
At issue is violation of both the Republican River Compact and known wrong doing, which seems to arise as a separate issue in my opinion.  Let me simplify this and get to the point because it is made out to be a typical overly complex litigation with meaning getting lost in the language.

These three states made a compact about use of the Republican River.  The violations go back over 10 years.  Nebraska had under estimated water use requirements and violated their use because they argue that the tools to estimate water needs was not accurate enough.  One of their models for the baseline analysis was the dust bowl era.  Seemingly that would be a valuable baseline for water minimums, and it is.  However as it turns out, that water minimum is not the lowest water levels that have been reached over the time since their compact.  Now you might be able to see where this is going.

Colorado is supporting Nebraska's argument, but Kansas is arguing that modifications in the compact are not allowable without acceptable revision (simplified here).  Further Kansas states that such revisions are a "threat" to their water rights; there is also no precedence for addressing disputes for violations of the Compact as can also be found in the Cornell review of that case.

Now there are other factors in the conversation but I am choosing not to go into those because I am not necessarily going in that direction.  As a last note Justices Ginsberg, Alito, Roberts and  Scalia-- as to my memory.

The bigger issue here is the value of water itself.  When considering the volume of water, it is one matter.  And clearly at risk is future violations and what exactly those violations mean going forward if there is not real consequence.  But also this should be an alarm for the real threat of water availability and scarcity.  As we encounter greater concerns over usable water an pollution of it from farms and other industrial requirements for water, how much influence do we as citizens have over this water.

As individuals we lack the power in most cases to even bring our arguments to the Supreme Court, yet our concerns are no less valuable.  Granted that we are getting use from the water that is stated in this case, but I am more concerned about the very nature of the argument that Kansas is making, which is how do we generate consequences for a dispute that satisfies an individual, let alone a state?

Oh!  I found it very interesting that one of the Justices (I believe it to be Justice Scalia) made a point of saying that if better ways of measuring water consumption from the River,  become available that doesn't necessarily meant that you are suppose to continually ask this court to make allowable revisions in the Compact.   Now it is my understanding that the whole point of law is to adapt when things are not accurately accounted for including human behavior relative to the greater good or violations of ideologies that were once though to be sufficient as in the case of civil rights arguments.

This is probably enough to marinate on but it does get you thinking about the importance of water and perhaps how we should elevate our awareness of what it actually means to and in our society.