When the River Dries up, the Compact Need Not Wither Away: Amending Interstate Water Compacts to Ensure Long-Term Viability

Hilary T. Jacobs

The nature of water is unlike most other natural resources: it flows. It moves between, around, and under states. Moreover, water is crucial for the survival of all life. In order to address the sharing of this highly coveted and necessary resource, many states have entered into congressionally sanctioned interstate water compacts. Yet despite these efforts, water conflicts persist. With global warming and a growing population, the United States is destined to face increased water shortages, and with that, increased interstate disputes over water.

Experts have predicted that the frequency of droughts is likely to increase, which may be attributed to surface water quality deterioration, decreasing quantities of groundwater, and increased demands for water. Although recent research indicates that the majority of water shortages are anticipated in western states, eastern states are not immune. Even states with historically bountiful amounts of water, like Maryland, have begun to adopt contingency plans in light of possible future water shortages.

Do existing compacts adequately prepare states for shortages by providing potential solutions and forums for negotiations, or will interstate water battles plague U.S. society for years to come? At the most basic level, interstate compacts are considered contracts. Accordingly, the contract doctrines of impracticability and frustration of purpose apply to compacts, threatening to undermine compacts' requirements when the going gets tough in the face of inevitable water shortages. This Comment will analyze the applicability of these doctrines to water compacts and then recommend several modifications to compacts to buffer against the undesirable outcome of dissolved compacts.