Another bottled water fight is heating up, this time in Colorado, where Nestle is moving forward with plans to bottle spring water that feeds the Arkansas River. Scot Kersgaard of the Colorado Independent has superb reporting of the dispute, which follows the typical storyline of bottled water fights in rural communities (with an interesting twist of some local officials from Chaffee County making cash on the deal).
From a legal perspective, the Colorado controversy raises some interesting new issues about bottling and selling water under western prior appropriation law. To obtain water rights to pump the desired spring water, Nestle reached a deal with the city of Aurora to lease 65 million gallons of Arkansas River water per year for twenty years. In theory, the leased water offsets Nestle’s spring water pumping and ensures that other water rights to the river are not harmed. It’s an interesting market-based solution to obtain spring water for bottling under prior appropriation law in a Western water basin that is already fully used.
However, prior appropriation law restricts the water right to a specific beneficial use, which for the city of Aurora was municipal supply. As reported in the Colorado Independent, the general manager of the Upper Arkansas Water Conservancy District raised questions about whether the city of Aurora can transfer its water rights to Nestle, stating: “Water is decreed for specific uses in specific areas. Aurora’s water rights in the Arkansas Basin were decreed for their use in their municipality.” Because Aurora’s water rights are for the beneficial use of municipal supply, not commercial bottling, the water rights may not be valid if used by Nestle to offset its spring water pumping.
In addition to raising unique prior appropriation legal questions, the Colorado dispute again demonstrates the need for reform of federal bottled water regulations. We don’t need the federal government to regulate water pumping for bottled water, a field historically left to the states. Instead, we simply need the federal Food and Drug Administration, which sets rules for defining and labeling “spring water,” to stop encouraging the pumping of water from small, vulnerable spring water systems with its label rules. This could be a relatively easy win-win policy reform, especially if one of the influential national environmental groups worked directly with Nestle and other industry players to develop a solution and bring it to the FDA with broad support.
And while I’m on the subject of Colorado water, I have to pass along this little bit of water policy nonsense from the Republican Colorado Gubernatorial candidate, Dan Maes (and again reported by Scot Kersgaard of the Colorado Independent). Speaking to the Colorado Water Congress about the complex problem of interstate management and over allocation of the Colorado River, Maes stated: “If it starts in Colorado, it’s our water.” Sorry Dan, but a century of well established law, from the Supreme Court of the United States and binding compacts approved by Congress and the western states (including Colorado), says just the opposite. The upstream state does not own the entire river nor can it use all of the water to the detriment of the many downstream states that also have sovereign rights to water resources. Maes’ declaration brings back memories of Judson Harmon, the former Attorney General whose name is forever associated with his proposed (and widely rejected) doctrine of absolute territorial sovereignty over rivers. If Mr. Maes becomes Colorado’s next governor and takes action based on his ill-informed view of interstate water rights, he’ll quickly find himself on the losing end of a Supreme Court case.