Playing a Zero Sum Game:
Inter-Jurisdictional Allocation of Water in
Federations
Inger Weibust Ph. D.
Norman Paterson School of International Affairs
Carleton University
August 27, 2009
Allocating water quantity in
rivers between jurisdictions
• Cases: The US, the European Union,
Canada
• Some water scarcity or drought in each
• What is the regime for managing river
water allocation and resolving disputes?
• Is the regime adequate?
Water and conflict
1. Game theory
-
Upstream/downstream allocation is pure conflict
Zero sum, not win/win
2. Conflict as contention
- e.g. Litigation, “Kickboxing”
3. Conflict as armed conflict
- Very rare, fortunately
The United States:
100 years of river conflicts and counting...
The US regime for allocating interstate rivers
1. Congress makes a law for that river
2. Litigation -- US Supreme Court
3. Litigation -- over federal legislation
4. Interstate compacts
 Almost every interstate river subject to
compact and litigation
The Interstate River Compact
• Most common approach
• About 14 compacts, since 1922
• Like a treaty between states
–Consent of each state required
• Like a contract to deliver water
 States should prefer a compact to litigation
Litigation
• Can occur before or after a compact exists
• Supreme Court allocation
– Principle of Equitable Apportionment
– Complicated formula - unpredictable
– No priority for being the upstream state
• Litigation under federal environment law
– unpredictable
Example: ACF River basin
• Apalachicola-Chattahoochee-Flint Basin
• Georgia, Alabama, Florida
– Georgia insists entitled to all the water in the river
• Litigation began in 1980’s
• Compact attempted in 1990’s
• July 2009 court decision
– Atlanta must get its water elsewhere or get
Congress to pass a law
Atlanta’s Water Supply in 2007
The US Allocation Regime
Pros
Cons
• Downstream state
• Not basin level
has rights
governance by
• Authoritative dispute
stakeholders
resolution
• Litigation expense
• Can recognize
ecological values
The European Union Regime on Water
2000 EU Water Framework Directive
• Integrated Water Resources
Management
– Water quality and ecology
– Water pricing
– Demand (not supply) management
– River Basin Level governance
 Nothing about water quantity
EU International River Disputes
• Meuse River between Belgium/Netherlands
– 1863 Treaty
– Resolution in 1994 with linkages to other issues
• Nestos River between Bulgaria and Greece
– 1995 treaty gives downstream Greece 29%
– Never implemented
EU Approach to Water Quantity
•
•
•
•
Preventing water shortages
Promoting basin level governance
Encouraging basin drought planning
Resolving disputes through
international law
The EU Allocation Regime
Pros
Cons
• Recognizes
ecological values
• Promotes basin level
Governance
• No dispute
resolution
• International law
vague
• Basins might not be
able to use linkage in
negotiations
The Canadian Regime for
Interprovincial Rivers
• Main interprovincial rivers in West
–Saskatchewan, Mackenzie, Peace
– All involve Alberta
• Interprovincial agreements
• Mackenzie River
• Saskatchewan River
Mackenzie Basin Agreement
• Signed in 1997
• Allocation to be determined by 7
bilaterals
– Only one has been signed
• No provision for binding dispute
resolution
• Any party can withdraw with one year’s
notice
The Saskatchewan River
• Flows through Alberta, Saskatchewan,
Manitoba
• Used for irrigation, drinking water and
hydroelectricity
• South Saskatchewan very heavily used for
irrigation
– Some tributaries fully allocated
Prairie Provinces Water Board
•
•
•
•
governs Saskatchewan River
created 1969
Consensus based
Alberta commits to giving Saskatchewan half
of the flow at its border
– In a drought, Alberta is guaranteed a minimum
amount of water
• No explicit recognition of ecological values
• Dispute resolution through Federal Court
The Canadian Allocation Regime
Pros
• Consensus based
• No lawsuits yet
Cons
• No consideration for
ecology
• No stakeholder
participation
• Little protection of
downstream users
Assessment of river allocation regimes
• None well equipped to adapt to climate
change
• Uncertain rights of downstream users in EU
and Canada
• Untested or underdeveloped dispute
resolution in EU and Canada
 Increased water stress likely to force revision
in EU and Canada