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COURT REPORT with Charles Bierbauer

Water rights create a torrent of legal disputes

June 26, 2000
Web posted at: 1:42 p.m. EST (1742 GMT)

Arizona v. California
VideoSenior Washington Correspondent Charles Bierbauer looks at the Supreme Court's decision against the voluntary-confession exception to the Miranda rights.
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VideoWashington Correspondent Charles Bierbauer explains how interstate quarrels over water rights are decided.
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VideoCNN's Brian Cabell looks at what happens when a drought triggers the latest episode in a tri-state battle over water
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Washington (CNN) -- The Colorado River, as it shapes the border between Arizona and California, is not the raging cataract of the Grand Canyon. It's not the vast impoundment of Lake Powell or Lake Mead. The lower Colorado, in contrast, meanders along the Fort Yuma Indian Reservation. But it's critical to the Quechan tribe there.

The U.S. Supreme Court ruled last week that the Quechan could pursue their claim to increased water rights. The court also supported claims to the Colorado on four other tribal reservations. The ruling raises the competition between the states and the tribes for the most valuable resource in the southwest: water.

The states of Arizona and California, the Coachella Valley Water District and the Metropolitan Water District of Southern California all argued against additional water rights for disputed boundary lands on the Fort Yuma Reservation. Justice Ruth Bader Ginsburg wrote the tribes could proceed because the "water rights were effective as of the time each reservation was created."

Chief Justice William Rehnquist disagreed: "A major purpose of this litigation, from its inception to the present day, has been to provide the necessary assurance to States of the Southwest and to various private interests, of the amount of water they can anticipate to receive from the Colorado River system." Rehnquist is a former Arizona resident, as is Justice Sandra Day O'Connor, who joined his dissent.

The Colorado flows faster than the legal system. The Supreme Court, which has "original jurisdiction" over disputes between states, has been dealing with these recurring tribal claims over the Colorado since 1952.

A legal water battle over the Potomac River traces back farther. In 1632, King Charles I of England granted ownership of the Potomac to Maryland -- shoreline to shoreline. Where rivers separate states, the border more commonly lies at midstream.

The Supreme Court last month agreed to consider Virginia's complaint that Maryland has restricted access to the Potomac. Both states, as well as West Virginia, draw water from the river.

Virginia's Fairfax County wants to extend its current shoreline water intake some 700 feet to the middle of the river where it says the water is cleaner. Many Maryland officials contend Virginia has itself to blame.

"There's just been a lot of churning up the land to make room for lots of new development and roads and highways," says Maryland State Sen. Christopher Van Hollen.

Behind the Fairfax water intake, expensive new houses surround a verdant golf course. Development expands inland in the fast-growing county. Directly across the river, the Maryland shore is buffered by the C & O Canal -- a national park favored by bikers, hikers and kayakers along the river. The scene is more rural, but Virginia officials say Maryland's agricultural runoff is as big a problem.

"You have runoff on both sides of the river and the water offshore is cleaner," says Fairfax County lawyer Stuart Raphael. "Both utilities ought to try to take the cleanest water available." Raphael says the issue is quality, not quantity.

This dispute runs deeper. The two states also disagree on building bridges over these same waters. Traffic in the region, which borders the nation's capital, is severely burdened. Virginia wants a new Potomac bridge to open access to its developing high-tech corridor. Maryland opposes the bridge, fearing a flow of jobs and revenues to Virginia as much as it fears a flow of water.

There are political rapids, too. Virginia is in Republican control. Maryland is in the Democrats' hands.

"The Republican approach in Virginia has been much more free-wheeling with regard to development," says the Maryland Democratic legislator Van Hollen.

This dispute lies close to home. I live a mile or so from the Potomac on the Maryland side. My family bikes on the canal's towpath. My son's Cub Scout pack annually hikes the Billy Goat Trail through rocky Mather Gorge just below the river's dramatic Great Falls.

But these interstate water rights quarrels, once the concern of a few Western states with disparate needs and resources, now come increasingly close to home for many Americans.

• Go west. The Republican River -- no political affiliation -- winds out of Colorado and into Kansas and Nebraska. The Supreme Court must referee Kansas claim that Nebraska has violated a 1943 agreement by diverting the Republican's flow into thousands of wells to irrigate the Cornhuskers' crops.

• Go south. Georgia, Alabama and Florida have a compact to share the resources of the Apalachicola-Chattahoochee-Flint basin. But the states cannot agree on how to implement it.

There, too, development has helped create the dilemma. The water demands of sprawling urban centers such as Atlanta are on the increase. As a result, Florida worries the Apalachicola will be severely depleted by the time it reaches the oyster beds at its mouth.

The Georgia-Alabama-Florida dispute is not on the Supreme Court's horizon yet, but it could flow that way.

• Go to Mars. NASA reported this week that it had found signs of water on that neighboring planet. Who'll solve the interplanetary water rights' disputes?

Report: Water springs found on Mars
June 21, 2000
Seven states discuss plan to curb California's water habit
May 26, 2000

Washington Suburban Sanitary Commission
Virginia Attorney General's office
Maryland Department of the Environment

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