Title: Interstate Compacts
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00003091/00001
 Material Information
Title: Interstate Compacts
Physical Description: Book
Language: English
Publisher: President's Water Resources Policy Commission
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Richard Hamann's Collections - Interstate Compacts
General Note: Box 12, Folder 9 ( Water Resources Law - Vol #3 - 1950 ), Item 9
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003091
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text

fThelreason for judicial caution in adjudicating the rela-
tive rights of States in such eases is that, while we have
jurisdiction of such disputes, they ,involve thq interests
: of. quasi-sovereigns, present ,complicated. and delicate
questions, ard, due to thepossibility of future change of
Conditions, necessitate expert administration rather than
judicial imposition of a hard and fast rule. Such con-
troversies ,may appropriately be composed by negotia-
tion and agreement, pursuant to the compact clause of
; the federal Constitution. ,We say of this easeas the
court has said of interstate fferences of:like nature,
that such mutual accommodation and agreement should,
if possible, be the medium of settlement, instead of in-
vocation of our adjudicatory power.

Interstate Compacts
The Constitution of the United States provides that: 2"
No State shall, without the consent of the Con-
gress, ', i enter. into any Agreement or Compact
with another State *
The Supieme Court has said that it discerns no difference be-
tween "eCmpact" and 'agreement," except that tihe former is
generally used with reference to more formal engagements.
Coipacts and agreemenfits cover "all stipulations affecting the
conduct or claims of the parties." 20 Nor does the Constitu-I
tion "state when the consent of Congress shall be .given,
whether it shall precede or may follow the compact made, or
whether it shall be expressed or may be implied."2
Noteworthy in this connection is the fact that, in 191 Con-
gress gave blanket consent to the states for compacts "for'the
"2U. S..ConST;, Art. I, 10, cl. 3. This provision apparently seemed 'e-
sirable to the framers of the Constitution and evoked little comment, either
in the Convention debates or in The Federalist papers. See Barron v.
Bdatimore, 7 Pet. 243, 248 (U. S. 1833) ; I Bryte, THE AMERICAN COMMON-
WEuLTH, 326 (1941) ; Madison in THE FE EsRAL T, NO. 44.
Virginia v. Tennessee, 148 U. S. 503, 520 (1893).
2 148 U. S. at 521. See also W1harton v. Wise, 153 U. S. 155, 173 (1894).

purpose of conserving the forests and the water supply of the
States" entering into such compacts.282 Also, in connection with
projects authorized by the 1936 Flood Control Act, Congress
gave blanket consent to states to enter into compacts whereby
they would provide )oertain project funds, exempting a speci-
fled type from a requirement that they be effective only after
approval.'-8 And in 1948, blanket consent was given to the -
states for negotiation of interstate compacts for the prevention
and abatement of pollution, and for establishment of agencies
to make such compacts effective.28' No record has been found,
however, of the consummation of compacts negotiated ex-
pressly pursuant to these authorizations.
On the other hand, difficulties in several fields of legislation
have elicited application of the Compact Clause." While
much has been written concerning interstate compacts,28 and
states have made use of this device in many situations,8 those
concerned with water and land resources are of special interest
here. Of these, most common are the ones providing for the
apportionment of waters of interstate:streams.~ Several re-
Act of March 1, 191 1,1 36 Stat. 961,16 U. S. 552. One writer has
characterized this blanket consent statute as the first of its kind. Dodd,
Interstate po~mpacts, 70 U. S. LAw RBV, 557,561 (1986).
See infra, n. 34, pp. 133-134.
"Act of June 30, 1948, 2(c), 62 Stat. 1155, 1156, 33 U. S. C0 466a(c)
(Supp: 111).
SSee, e. g., Frankfurter and Landis, The Compact Clause of the onsti-
I utio, A Study i IAterstateAd;jutments, 34 YALE L. J. 685, 696-704 (t925).
VAMhouS SO~UCES, Colorado Water Conservation Board (1946).
For a listing of compacts with the consent of Congress from 1789-1925,
with 'related data, see Frankfurter and Landis, op. oft., supra. n; 288 at
785-748; for a listing of interstate compacts from 1789-1986 with related
data, see Dodd, Interstate Col pacts, 70 U. S. LAw REi. 567, 574-578 (1986);
for a listing of Interstate compacts from 1934-1949 with related data, see THa
BOOK orF TH STATEs, The Council of State Governments, pp. 26-31 (1950-
See Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S.
92, 106 (1938), .where the Court pointed out that up to that time Congress
had consented to 15 such compacts, of which five were ratified by two or
more of the contracting states.
Compacts providing for, among other things, apportionment, equitable
apportionment, equitable distribution, or equitable' division of waters of
interstate streams, include the following:.La Plata River Compact (Colo-


cent ones:in this group also contain prOvisions relating to river
development;:.r Others are concerned principally with pollu-
tion,20 one being also concerned especially with control of
floods."' Early examples relate to navigation.290 By their
nature, interstate water compacts involve matters of mutual

rado and New Mexico, Act ofjJanuary 29i 1935, 43 Stat. 796); South Platte
River Compact (Colorado and Nebraska, Act of March 8, 1926, 44 Stat. 195) ;
Colorado River Conipct '(Arizona, 6Clifornia, Colorado, Nevada, New
M~tico, Utah, and Wtyming, Act of December; 21, 1928, 45 Stat. 1051, 43
U. S. C. 617--17t) ; Rio GOande Compact (Colorado, New Mexiep, andTexas,
Act of May 31, 1939, 53 Stat. 785); Republicana Biver Compact (Colorado,
Kansas, and Nebraska, Act of May 26, 1943, 57 Stat. 86); Belle Fourche
River Compact (South Dakota and WyomiingAct of February 26, 1944, 58
Stat. 94); Costilla Creek Compact (Colorado and New Mexico, Act'of June
11, 1946, 60 Stat. 246); Upper ColoradaoRiver. Basin Compact (Arizona,
Colorado, New Mexico, Utab, and Wyoming, Act of April 6,:1949 63 Stat. 31);
Arkansas River Compact (COlorado and Kansas, Act of May 31,1949, 68 Stat.
145); Pecos River Compact (New Mexico and Texas, Act of June 9, 1949, 68
Stat. 159) ; Snake Rier Compact (Idaho and Wyoming, Act of April 21, 190,
64 Stat. 29).
"Colorado River Compaet, Upper Colorado River Basin Compact, Pecos
River Compact, and Snake River Compact (see preceding note).
Several other compacts are concerned with construction and operation of
Interstate facilities. Notabib among these are the ones providing for the
New York Port Authority (New Jetsey ard NeWPYork, Act of August 23, 1921,
42 Stat. 174), and that providing for the Bi-State Met ropolitan Development
District for the St. Louis Area (Illinois and Missouri, Act of Audgut 31, 1950,
64 Stat. 568).
"Tri-State Compact (Connecticut, New Jersey, and New York, Act of
August 27,1985, 49 Stat. 932) ; Bed River of the North Compact (Minnesota,
North Dakota,,and Squth Pakota, Act of April 2, 1938, 52 Stat. 150); Ohio
River Valley Water Sanitation Compact (i4inois, Indiana, Kentucky, New
York, .Ohio, Pennsylvania, Tennessee,, Virginha and West Virginia, Act of
July 11, 1940, 54 Stat, 752); Potomac River Compact (District of'Columbia,
Maryland, PetisyIvania, Virginia, and West Virginia, Act of July 11, 1940,
54 Stat. 748); New England Interstate Water Pollution Control Compaet
(Connecticut, Massachusetts, New York, Rhode Island, and Vermont, Act
of July 31,1947,61 Stat. 682).
m Red River of the North Compact (see preceding note).
"1785 Agreement, Maryland and Virginia (1 DossET, MD. LAWS, 1692-
1839, p. 187, and 12'HENNG VA. STAT. p. 50; see also Wharton v. Wise, 153
U. S. 155, 172 (1894)); 1788 Agreement, Georgia and South Carolina
(PBUNc DIG. GA. LAWS, 53 and 1 CooPEr S. CA. STATs. 411; see also South
arolina v. Georgia, 98 U. 4,9 (1876)).

coiee --and interest o the United4 states and the affected

r ine a primary purpose of many of these compacts is ap-
portionment f waters of interstate stemsrimportahce at-
taebhe to' the case of Iitdertider v. La Pklta river &PCherry
Cieek DitA Co. This litigation involved the La Plata River
whih Aiows from Colorado into New Mexico. The Ditdh Com-
pany sought to enjoin the State Engineer of Coelrado from
edsing,'it headgate, thus ljermitting water adjudicated to it
uiidkr n early state deeree to flow down to wati users in New
Mexico- The: tate Engineer defended onethe groiud that he
was acting in conformhity wiith the provisions of a compact be-
W pee Coloradq, and Nw Mexico,, appoyved by Congress. The
$ipEesee Co.urt of Coloradq reversed a holding ,by ,tbe Jl we
ciort that the State Engineer's action was justified by the
ip| C apct, dealing in effect,that the compact could not disre-
gard vested rights in Colorado. But this decision was reversed
by the Supreme Cour of the UnitedStates which,said: ",
The' Supreme COurt of Colbrad held th CbinolmtAi -
I conititutional becaui, for aught~ that appears, ite- .
: -it 'bodies not a judicial, or quasi-judieial; decnion of oin-
troverted rights, but a trading compromise of confioting
- ~i nk l;a: The assumption that a judicialor quasi-judicial
Sdeisiona f thvi'e6itroerted claikmt is essential to' the
validity of a compat 'adjusting them, rests upon tnis
| i Ii conception. It ignores the history and order of devel-

-..tbi: (1 9f04otion,. is is pertinent to note the following commrntg. in
4 Zia letters of May 3, 1960 from President Truman to Mr. R. J. NeweU
v'a4 w.-". OL,' L federal rtnpe~ titlves cf tatM #ifetitd iW ttei-
Q.eilagthBi ello'pt1ie B$ver aid r River, respectvely, "* *,,
refer to the somewhat recent tendency to incorporate in Interptate water
i~hti' qutionableor confltvttng provisions Imposing testrictlons on use
A Wa* r by the tUn eState, suecd as appear In the Snake River Compact
enactment which I approved on March 21, 1950 *
S* *: I am impreised with the importance of Insiiring thai compact
provisions reflect as clearly as possible a recognition of the respective respon-
BibillU~ie Std prerogatetis of the United States and the affected States."
804 U. 8. 92 (1938).
S804 U. S. at 104.


opment of thoiitwo means provided by the Constitution
for adjusting interstate controversies. The compact--
the legislative' means--adapts to our Union of sovereign
Statesthe age-old treaty-making power of independent
sovereign nations; .Adjustment by compact, without: a
S judicial or quasi-judicial determination of existing ights
had been practiced in the Colonies, was praetieed by the
: States before the adoption of the Constitution,-and had
been extensively practiced in the UiUited States for
nearly half century before this Court first applied the
judicial means nin settling the boundary dispute in
Rhode Island v. Massachusetts, 12 Pet. 657, 723-725.
As earlier noted, the Court also pointed out that whether
apportionment of the waters of an interstate stream be made
by compact or by decree of the'Supieme Couirt "the appir-
tionmenrit is binding upon the citizet of each State tihd"ll
water claimants, even where the StiMt had granted the water
rights before it entered into the 'b mpact?."' Moreover, the
Court held that whether the waters of an interstate stream
-must be apportioQed: between two states "is a question of
'federal coummnn law' upon which .neit0e the, statutes nor the
decisions of either State can be conclusive." :
Another holding of significance n regard to interstate com-
pacts is a recent decision by the Supreme -Court of Appeals
of West Virginia in -State ex rel Dyer v. Sims. West Vir-
giniai is a signatory state to the:-Oio River, Valley Sanitation
Compact which became effective as to West Virginia in 1948.
The legislature of hat State appropriated $12,250 as its propor-
tionateshare, under the compact terms, of the Commission ex-
pehses for thtefiscal year ending June 30, 1950. Theaet;also
ratified the compact and vested certain powers M til bormpact
Commission. A, requisition upon the auditor to make ethe
"804 U. 8. at 106.
304 4, S at 110, ditligamwaes v. Colora4o, 206 U. 46,95, 97-98 (1907);
Connecticut v. MaaesshohetM,282 U, S.-660, 6698-71 (1931); New Jersey v.
New York, 283 U. 8. 336, 342-343 (1931); Washington v. Oregon, 297 U. S.
517,528 (1936).
S133 W. Va. -, 58 8. E. 2d 766, decided April 4, 1950., :

appropriation 'effective was refused, whereupon proceedings
were instituted in the Supreme Court of Appeals of West Vit-
ginia for a writ of mandamus to compel him to honor the
requisition. On demurrer, the.Court denied the writ.
The first of two grounds upon which the Court based its
decision was its conclusion that fthe West Virginia statute: 2
in all reasonable probability, bound future Legislatures
to make appropriations for the continuation :of: the
activities of the- Sanitation Commission, and *
amounts to the creation of a debt inhibited by Section 4
S,of Article X of our State Constitution.;
Secoidly, the Court held that the compact device undea consid-
e*ation involved an invalid attempt to delegate state police
power, pointing out that the compact made detailed provisions
for enforcement of the Commission's orders concerning abate-
ment action.300 While conceding that the legislature may dele-
gate police po6er to governmental agencies within the state,
the court concluded that the legislature does not possess kiulit-
ity to delegate any portion of that power to another state, or to
the Federal Government, or to a combination of the two."'
And the Court continued: 0'
We realize that m thi instance tle purpose in view can
only be worked out through cooperation between the
states drained in whole or in part by the Ohio River aid
S its tributaries. We would not be understood as desiring
to stand ik *the way of such cooperation; but it mtist be
such cooperatioi:n a does not surrender or' barter' away
'the rightsof this State as one 6f the sovereign states of
the Union.
hereafter, a petition for certorari was filed in the Supreme
Court of the United States by the State of West Virginia, AlIo,
the Solicitor General of die United States fied a memorandum
as initeus curiae urging that the Court review the decision aind

58 8 E. 2d at 775.
58 S. E. 2d at 775-777.
S58 S. E. 2d at 776.
58 S. E. 2d at 777.


emphasizing its practical effect upon interstate compacts. On
October 9, 1950, the Supreme Courtrgrnted the petition. I


The Constitution is the supreme law of the land. Under it,
federal authority is limited to those powers expressly delegated
and such as may reasonably be implied from those granted. All
other powers are reserved to the states or to thepeople. The
Federal Government is paramount in its own sphere.
COMMERCE Powit.-Federal commerce authority compre-
-hends navigation, 'and Congress has jurisdiction over all navi-
gable waters of the United States. In addition, it may exercise
its commerce jurisdiction both as to the upper nonnavigabe
reaches of a navigable waterway and as to the nonnavigable
tributaries thereof, if the navigable capacity of the navigable
waterway is affected or if interstate commerce is otherwise
Commerce power also includes flee9 protection and water-
shed development It may be employed to authorize construe-
tion of navigation and flood-control ,ams, at the same time
providing for federal generation and sale of power. Similarly,
Congress may permit nonfederal development of water power
upon conditions which need not-be related to navigation. For
its authority over waterways is as broad as the needof com-
merce. Many decisions in connection with the exercise of
commerce power are for Congress alone.
A riparian owner under state law may hold title, between
himself and others outside of the Governmnt,- to ,a part of
the bed of a navigable stream, since thp people became ,ov-
ereign following the Americnan Ieotfiona thlus Ji
iute right to navigable waters and the beds unde them, suject
to those rights surrendered to the Government inthe Constitu-
tion. From this latter paramount qualification evolved the
general rule that the United States does not have to compen-
State of West Virginia ex rel. Dyer v. Bims, October Term, 19L5, No.
147, U. S. -.

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