“Federal Rivers” Legal Context for Understanding Missouri River Issues John E. Thorson June 2015

Title suggested by Dustin Garrick et al. (eds.), Federal Rivers: Managing Water in Multi-Layered Political Systems (2014) Description of Canadian water management taken from J. Owen Saunders, Managing Water in a Federal State: The Canadian Experience (2008)

Acronyms EPA – U.S. Environmental Protection Agency ESA – Federal Endangered Species Act SCOTUS – Supreme Court of the United States USACE – U.S. Army Corps of Engineers USFWS – U.S. Fish & Wildlife Service

Federalism re Water CanadaUnited States Highly decentralized“Marble cake”; hybrid

Political Geography CanadaUnited States Three federal territories (Yukon, Northwest & Nunavut) No continental territories

Major River Drainages CanadaUnited States Five (Pacific, western Arctic Ocean, Hudson Bay, Atlantic, Mississippi) Seven (Colorado, Columbia/Snake, Mississippi, Missouri/Yellowstone, Ohio, Rio Grande, Sacramento/San Joaquin)

Water Law Regimes (Surface) CanadaUnited States Eastern provinces – riparian rights Quebec – civil code Western provinces – prior appropriation Eastern states – riparian law Rocky Mountain West – prior appropriation West Coast & some Midwestern states – hybrid Predominately in West – Federal Reserved Water Rights Nationally – federal regulatory water rights

Groundwater CanadaUnited States Significant but poorly understood 30% of population relies on GW for drinking water Significant but poorly understood 44% of population relies on GW for drinking water

Groundwater Law Regimes CanadaUnited States Wide range of management approaches

Per Capita Freshwater Usage CanadaUnited States Ranks 2 nd in worldRanks 1 st in world

Federal Constitutional Powers re Water CanadaUnited States Navigation & fisheries Criminal law Trade & commerce Spending power Implementation of treaties General power to legislate for “peace, order and good government” (“national concern” doctrine) Navigation Interstate commerce power Taxing & spending power Treaty power Proprietary (federal reserved water rights)

General Constitutional Trend CanadaUnited States Toward greater provincial autonomy & decentralization Reluctance to assert federal constitutional powers Until recently, robust exercise of federal constitutional powers (especially Interstate Commerce Clause) SCOTUS now limiting reach of commerce and other federal powers

Public Lands CanadaUnited States Vast majority owned & managed by provincial governments Federal lands held for Aboriginal people & parks Vast majority owned & managed by federal government including public domain, reserved lands & Indian reservations

Public Land & Resource Management CanadaUnited States Action is at provincial & local level These governments have more resource management expertise Action is more at federal level Federal agencies still have advantage in resource management expertise although some states are gaining

Interjurisdictional Water Management CanadaUnited States Weak federal role has resulted in general master agreements leaving provinces to work out substantive obligations & resolve conflict Reluctance of federal government to resolve interjurisdictional litigation Widespread although declining use of interstate compacts usually negotiated with federal assistance Federal agencies have prominent regulatory role (USACE, EPA, USFWS) SCOTUS & Congress can resolve interstate disputes

General Challenges CanadaUnited States Conflict between energy & water security Water quality Competing demands in western region Climate change Export concerns Population growth in arid regions Climate change Surface-groundwater nexus Recovering species & riparian ecosystems Resolving tribal water right claims

Challenges for Federal Government CanadaUnited States Resolving interprovincial conflicts while respecting tradition of deference to provincial management Implementing national legislative objectives (e.g., ESA, clean water), possibly with state & stakeholder partners

International Arrangements CanadaUnited States International Joint Commission has been adaptive & flexible Great Lakes Charter is leading example of successful sub-national diplomacy Agree Processes leading up to Columbia River Treaty renegotiations example of sub-national diplomacy influencing bi-national processes Provincial authority sometimes frustrates cross- border conflict resolution (e.g., North Fork of the Flathead)