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7 Hamline L. Rev. 405 (1984)
Equitable Apportionment and the Supreme Court: What's so Equitable about Apportionment

handle is hein.journals/hamlrv7 and id is 413 raw text is: Equitable Apportionment and the Supreme Court: What's so Equi-
table about Apportionment?
Water is a highly sought after natural resource. Unlike other
resources, water is fluid and is not easily separable into distinct
units. Moreover, the tendency of water to flow means that water
located on one person's land one day may be located on another's
property the next. Taken together these characteristics create a
unique legal problem when deciding how to regulate ownership
rights in water.
States faced with this problem have created two water rights
doctrines: the prior appropriation doctrine and the riparian doc-
trine. Each doctrine is based on distinct premises addressing dis-
tinct facets of the water distribution problem. So long as a dispute
over the allocation of a water source involves users within the same
state, the application of these doctrines poses few problems. Often,
however, there are disputes over water that is located in more than
one state. This raises the issue of what legal principles should apply
to disputes among users located in two or more states that do not
apply the same water law doctrines.
The United States Supreme Court has addressed this issue in
several cases, using an approach that has come to be known as the
doctrine of equitable apportionment.' Professor Robert Clark, a
recognized expert in the field of water law, has referred to the equi-
table apportionment doctrine as the federal interstate common law
applicable to interstate disputes over water rights in the original ju-
risdiction of the Supreme Court.'2 The Court's intent has been to
resolve disputes over a water source in a manner that is most equita-
ble to all concerned.
As originally applied, this doctrine consisted of little more than
applying the principles adopted by the states involved in the dis-
pute. The first case decided by the Court involved one state that
1. Equitable apportionment is a federal common law doctrine under which the Court,
in a controversy between two States over the diversion and use of waters of a stream pass-
ing from one to the other, apportions the available water based on consideration of the
particular facts disclosed and the local law of the two States ..  Wyoming v. Colorado,
259 U.S. 419, 464 (1922). The Court recently extended the application of the equitable ap-
portionment doctrine to a dispute involving the allocation of anadromous fish. See Idaho ex
rel. Evans v. Oregon, 103 S. Ct. 2817 (1983). This latter opinion is briefly discussed infra at
notes 72, 97 and 100.
2. 2 R. CLARK, WATERS AND WATER RIGHTS § 132.1, at 325 (1967).

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