O'Melveny Insights 2023

23 Areas of the South, Southeast, Midwest, and High Plains also were parched last year. Following decades of limited rainfall, the two major reservoirs on the Colorado River—the lifeblood of the Southwest—are approaching “dead pool” levels, which would cut off both water availability and hydroelectric production. Scientists estimate that the West has not been this dry in more than 1,200 years. When tensions between states spill over, the disputes fall under the exclusive jurisdiction of the US Supreme Court. Mississippi has sued Tennessee, arguing before the Court that the city of Memphis was stealing its groundwater because the city’s wells were causing groundwater under Mississippi to flow across the border into Tennessee. And Florida sued Georgia, alleging that Georgia’s rapacious thirst for water dramatically reduced Apalachicola River flows, harming both the river’s ecosystem and Florida’s oyster fisheries in Apalachicola Bay. Even voluntary agreements, which were once successful in resolving interstate water disputes, are failing to avert new lawsuits in the face of droughts and other shortages. Since the early 20th century, states have agreed to Congressionally approved “interstate compacts” to avoid the time, cost, and risk of litigation. These compacts spell out how much water each state can divert from shared rivers and resolve other disagreements. But when shortages hit, states often find themselves unable to agree on exactly what the compacts require, and they end up before the Supreme Court after all. In the last decade, the Supreme Court has had to resolve disputes over both the Yellowstone River Compact (Montana, North Dakota, and Wyoming) and the Pecos River Compact (New Mexico and Texas). Recently, the dwindling waters of the Colorado River have generated heated disputes over the meaning of the Colorado River Compact, which has guided river operations for a century. It remains to be seen whether that compact also comes under the scrutiny of the justices. Whiskey is for drinking; water is for fighting over. —Mark Twain Almost no part of the country has been spared in recent years. California endured the driest three years in its recorded history from 2020-22.