WATER POLITICS

Where the Missouri and Mississippi Rivers meet north of St. Louis, the powerful waterways form a line in the middle of their flows, at first refusing to mix together in their new union.

As it cuts across the state on its way to meet the Mississippi, the Missouri River irrigates crops, cools the systems at nuclear and coal power plants and quenches millions of Missourians’ thirst as the largest source of drinking water in the state.

While some may take it for granted, Missouri state Rep. Jamie Burger is watching the fights over water in the Western U.S. closely. He worries that eventually people will come seeking Missouri’s abundant water resources. Last legislative session, he introduced a bill to ban most exports of water from the state.

“We have to get something into play, because the western states at some point in time will be coming after Missouri’s water,” Burger said.

The bill passed the state House but failed in the Senate. Next session, Burger will be in that chamber after winning his primary election and expects the bill will pass when he proposes it a second time.

“We feed the world with our water,” Burger said. “It should be coming to us. That’s the way it should be. And I worry about those diversions along the Missouri River, and even in the Mississippi River Basin.”

Water law experts say this type of legislative move is a classic warning shot that could signal a more contentious future over water in the Midwest and Great Plains. Periodic courtroom dramas over water may become more common as climate change sets up conditions that could lead to more water scarcity in the north central U.S.

“If I were in charge of the water resources of states like Missouri or Iowa, Michigan and so forth, I would start paying a lot of attention to the ways in which these water disputes have been resolved farther west, and we’re already seeing some chest thumping among some of these states,” said Burke Griggs, a professor of law at Washburn University in Topeka, Kansas.

Climate pressure

Climate change is going to have a big effect on the availability of water in this part of the country, said Doug Kluck, the central region’s climate services director for the National Oceanic and Atmospheric Administration. He said swings between weather extremes will exacerbate man-made issues that are already in play, like increasing demand from growing communities.

“You’re talking about longer periods of drought with more heavy rainfall events kind of stuck in between that don’t help as much when it comes to needs,” Kluck said.

Pouring rain isn’t as helpful for recharging soil and groundwater in a drought as slow, steady rainfall. But Kluck said beneficial, orderly precipitation is already shown to be happening less over time.

“So, ‘when it rains, it pours,’ is becoming more the norm, as opposed to the exception,” Kluck said.

On top of drought, Kluck said climate change is messing with the timing and amount of snowmelt that feeds rivers like the Missouri in the middle of the country. The 2,300 mile Missouri River starts in the mountains of southwestern Montana and is fed at first by snow, before taking on water from tributaries that look like a vascular system throughout its basin on the way to St. Louis.

And some research has shown the line that marks the start of the arid west might already be moving east as the climate changes.

As humans increase the concentration of greenhouse gases in the atmosphere, further warming the planet, these changes could intensify, which Kluck thinks could, unfortunately, make lawsuits over water more likely.

“Whiskey is for drinking, water’s for fighting,” Kluck said. “It’s an old term, and there’s good reason people have said it for years and years and years.”

More straws

Upriver of St. Louis, there are already projects putting metaphorical straws into the waters of the Missouri River. One is the Red River Valley Water Supply Project in North Dakota, which is building a pipeline to bring Missouri River water to the central and eastern parts of the state.

“Reliable water supplies for drinking water and industrial uses in central North Dakota and the Red River Valley can be scarce, especially under drought conditions,” a promotional video for the project stated. “Yet the Missouri River presents an abundant resource.”

Construction is underway and is expected to be completed in 2032.

But this project is contentious. In early 2020, the state of Missouri sued multiple federal agencies, related parties and the state of North Dakota to try to block the Central North Dakota Water Supply Project, which connects to the Red River Valley Water Supply Project pipeline. Last year, the Eighth Circuit Court of Appeals allowed the project to go forward, affirming a district court’s ruling that the project did not violate relevant federal environmental and water laws.

Some in North Dakota think lawsuits like that one are only going to become more common in the coming years, potentially making the Midwest look more like the famously disputed Colorado River Basin.

“The Missouri River is still kind of the wild wild west, first come, first serve,” said Duane DeKrey, general manager of the Garrison Diversion Conservancy District, which is co-leading the Red River project. “And so it’s amazing the number of states now that are contacting North Dakota and saying, ‘How’d you do it?’ Because they know they’re going to get sued by Missouri if they start a project to take water out of the Missouri River.”

Scrapping over water

If you’re looking for fights over water in the middle of the country, there are plenty of powers that be, taking swipes at each other and drawing lines in the sand.

“The interstate water dispute does have a long and pretty distinguished history,” said Griggs, the law professor in Topeka.

There are lawsuits over rivers and groundwater between neighboring states; Griggs represented the state of Kansas before the U.S. Supreme Court in a 2015 water case against Nebraska. There are also international water agreements, like on the Great Lakes.

And there are tribal nations throughout the Midwest who were promised water in treaties with the U.S. more than a century ago.

“It’s going to be a water war, and we’re seeing it right now — a water war within states, and the tribes are pitted in the middle of all of it,” said Doug CrowGhost, the water resources director for the Standing Rock Sioux Tribe. “And the funny thing about it is, the tribes have a bigger water right than the states do.”

CrowGhost is chairman of the board of the Great Plains Tribal Water Alliance, which includes tribes along the Missouri River. He said recent changes under Secretary of the Interior Deb Haaland have given tribes more authority over their water, by allowing them to go through a congressional process to create their own water permitting codes.

But as other parts of the U.S. get drier, CrowGhost thinks the Missouri River will become a prime target for diversion. With that in mind, the tribes are preparing to protect their treaty rights to water.

“Our forefathers saw in ceremonies that if we don’t protect our land, if we don’t protect our water, we’re not going to have a people,” CrowGhost said. “And that’s what we live by today.”

Legal frameworks

In a fight over water, there are three ways to decide who gets what, said Rhett Larson, a professor of water law at Arizona State University.

If two states sue each other, that lawsuit goes straight to the U.S. Supreme Court. Congress can also get involved by passing a law on how to divvy up water. Finally, the states and tribal nations can agree to a compact, which lays out a formal agreement to share water.

The water compact that has been generating the most headlines in recent years is the one governing the Colorado River Basin. The current rules for sharing river water will expire in 2026, so the parties are at the negotiating table to rework the agreement.

Unlike the Colorado, the Missouri and Mississippi Rivers don’t have compacts in place, besides on some of their smaller tributaries. Some, like CrowGhost and DeKrey, think it would be beneficial to have a compact to prepare for a more contentious future.

“The states are going to have to sit down together and decide who gets what out of the river,” DeKrey said. “And I think even though that would probably be a very painful process, I think it would probably be a better process than having the federal government come in and decide who gets the water.

DeKrey, in sparsely populated North Dakota, worries that if the federal government alone makes the decisions, the water will flow wherever there is the most political clout. But Larson said because these central river basins are so big and diverse, a compact isn’t likely realistic.

“While the Colorado River Basin is large, it doesn’t compare in terms of overall size to the Mississippi,” Larson said. “Those transaction costs, just having to negotiate amongst that many states, that many different kinds of industries, that many different kinds of crops, makes it really difficult to reach a compact.”

Even without a compact, there are lessons to learn from places like the Colorado River Basin, according to Griggs, the law professor. He believes negotiators have to lead with science, especially when it comes to quantifying the amount of water that’s available.

And he said it’s important to bring everyone to the table, especially groups that were historically left out of water negotiations, like sovereign Native American tribes and the ecosystems that rely on these rivers.

“We have to make sure we’re allocating the interstate system not only equitably but sustainably,” Griggs said.

While Larson is skeptical compacts in the Missouri and Mississippi River basins would actually come together, he does see a silver lining.

“Usually water scarcity is actually a catalyst for cooperation more than conflict,” he said.