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Introduction This article applies the Park City Principles to typical water management institutions which have evolved to address three federal/state areas of conflict arising from the United States Constitution. The first federalism conflict is between states over aliquot shares of common river systems. It is based upon the principle of state sovereignty under the Tenth Amendment. A state has the right to control water resources passing within its boundaries. As an aid to peaceful resolution of interstate disputes over resources, including water, the Compact Clause of the United States Constitution permits states, as sovereigns, to enter into interstate compacts. Such compacts, when approved by Congress, are federal law. More than thirty interstate compacts currently exist. The majority of these are governed by compact commissions. Compact commissions are composed of designated representatives from the states and occasionally contain a representative from the federal government. Interstate compacts and the disputes arising under them are the subject of the first institutional inquiry.
The second federalism principle is established by the Commerce Clause of the Constitution. This principle addresses the balance of federal and state regulatory power when water resources are allocated as market or quasi-market commodities. The Supreme Court has held that if water is a freely-traded commodity within the boundaries of a state, the state cannot close that market to out-of-state bidders who choose to purchase that commodity and transport it out of state. While a state may apply even-handed rules respecting water conservation and public welfare, these rules must be applied to out-of-state and in-state users equally. The interest of an unrestrained national market for resources has been held to outweigh a state's parochial economic interests in preserving the supplies for its citizens. The failure of litigation at local levels over Commerce Clause issues, at least in some instances, has given rise to interstate institutions for allocating the water among states. This article explores the function of a joint water commission, formed as an alternative to Commerce Clause litigation, that has authority over the groundwater within the lower Rio Grande aquifers in New Mexico.
The third issue examined involves litigation over federal Indian reserved water rights. The principle is simply stated but complex in its application: The United States, as sovereign, is a trustee for the Native American tribes and has a duty to ensure the tribes have sufficient water resources to fulfill the purposes of the reservations on which they reside Likewise, the tribes, as sovereigns, have a duty to their members to protect and preserve the natural resources of the tribes. This duty is most often manifested by the tribe's responsibility to claim for its people the full use of the waters touching and concerning the tribal lands under the Winters doctrine. These tribal and federal duties often directly confront the state's obligation to maximize the water rights not only for the tribal members, but also for the non-Native Americans residing within the state. The institution most frequently employed for resolving these conflicts is a state or federal court, and generally a special master is appointed by the court to administer a water rights adjudication suit.
In this discussion paper, all of these issues are addressed by first stating the respective Park City Principle, providing a hypothetical typical of the circumstances where conflicts may arise, and then analyzing the institution and its response in terms of the Park City Principles.
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