Title: Interstate Water Compacts
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Title: Interstate Water Compacts
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Publisher: University of Michigan
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann's Collections - Interstate Water Compacts
General Note: Box 12, Folder 10 ( Water Resources and The Law - 1958 ), Item 11
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INTERSTATE WATER COMPACTS


Dominic B. King

TABLE OF CONTENTS

Page

I. INTRODUCTION.................... 355
I. NATURE OF THE INTERSTATE COMPACT UNDER THE
FEDERAL CONSTITUTION. . . . ... 357
A. What Does the Compact Clause Encompass? . .. .357
B. How Congressional Consent Is Given . . .. 360
C. The Effect of Congressional Consent . ... 362
III. STATE ACTION IN THE FORMATION OF COMPACTS 363
IV. EFFECT OF INTERSTATE COMPACTS ON SIGNATORY
STATES . . . . . ... 365
A. Status of Compacts ............... ...365
B. United States Supreme Court Jurisdiction Over Compacts 368
C. Obligation of States . . . .... 368
D. Obligatory Effect on Private Property Rights . .. 372
E. Obtaining Enforcement of Compacts . ..... 374
V. OTHER METHODS OF INTERSTATE SETTLEMENT. 375
A. Methods of Interstate Cooperation Classified .. 376
B. Extra-constitutional Methods. . . . 376
C. Constitutional Methods . .... ....... 377
1. Interstate Compacts . . . .... 377
2. Interstate Litigation Before the Supreme Court. 377
3. Congressional Legislation. . . . 385
VI. CRITICAL EVALUATION OF THE INTERSTATE COMPACT
DEVICE . . . . . . 391
A. Negotiating the Compact. . . . ... 392
B. Enforcement .. ... .. .. ... .... .. .410
C. Inflexibility of Compacts. . . . ... 416
D. Inadequate Regulatory Powers . . .... 418
VII. CONCLUSION ......................420
















INTERSTATE WATER COMPACTS

Dominic B. King


I. INTRODUCTION
In order to obtain the maximum utilization and conservation of
our nation's water resources it is essential to deal with this re-
source as nature has established it. The development of our waters
must then be on a water basin level as a minimum operative unit.
Most of the water basins of any consequence cover an area in ex-
cess of any one state boundary and normally would encompass sev-
eral states. 1 To delimit a geographic area as a basic unit for
water planning requires the consideration of water, soil, industry,
cities, land, climate, economics, and any number of intangibles.
There must be an understanding and correlation of the multipurpose
demands which such an area will make upon the water resources
which are available. This type of regional planning perforce ex-
tends beyond state political boundaries and requires interstate co-
operation. Purely intrastate regulation of water resources is a
requisite in our economy, but it has the fatal handicap of jurisdic-
tional limits not coterminous with the water resources of a region. 2
The burgeoning national economy makes it inevitable that there must
be some workable system of interstate cooperation to regulate and
develop the water resources of the country just to meet the increas-
ind demands of cities, industry, and agriculture. 3
*Legislative Analyst, Legislative Research Center, University of Michigan
Law School. Member of Montana Bar. B.A., Montana State University,
1951; LL.B, Montana State University, 1952.
1. See 1 Commission on Organization of the Executive Branch of the gov-
ernment, Water Resources and Power, A Report to the-Congress, p. 30
(1955) (hereafter referred to as Commission Report on Water Resources).
2. Martz, "The Role of the Federal Government in State Water Law," 5
Kan. L. Rev. 626, 627 (1957): "Streams are regional in scope and
river basins do not respect state or local government boundaries.
Sectional rivalries have caused continuous controversy on our major
streams and have retarded development of important water storage and
diversion projects in the Upper Colorado River basin and Central Ari-
zona valley. Sound planning can best be accomplished on a regional or
national level."
3. 1 Commission Report on Water Resources, p. 5 (1955): "A study made
made by our task force states that our industrial needs (Including cool-
ing water) will rise in the next 25 years by an estimated 138,000,000, 000


I I 1








WATER RESOURCES


Although most water problems are essentially local and re-
gional, still there is a national interest in the country's water re-
sources which transcends even regional bounds and requires the ef-
forts of the federal government to coordinate or oversee water plan-
ning to safeguard the national interest in this most precious of all
resources. 5 There must be an interaction of local, state, and na-
tional governments in furthering the proper use and maintenance of
water. Since the various watersheds of the country have varied
problems, each somewhat peculiar to the region, the paramount re-
sponsibility for regulating the proper use of water rests with the
states of the respective regions. 6 Immediately there is presented
a fundamental policy consideration; namely, states' rights versus
federal regulation. It is not the purpose here to pursue the funda-
mental tenets of the opposing philosophies. Rather this paper will
explore the various means which are available to the states for co-
operative action among themselves in handling the increasing prob-
lems relating to water. Foremost among the means available to
the states for adequately treating regional water planning and set-
tling interstate water disputes is the constitutional provision relat-
ing to interstate compacts. This paper will be primarily concerned
with the interstate compact device; whether it has worked; whether
it will work; whether other alternatives are available to the states;
and whether federal intervention is desirable or necessary. Recog-
nition of the scope of the water problem as being multi-state com-
pels the states of the Union to find an answer to these questions-
and in the not too distant future.



(Footnote continued)
gallons per day; and that domestic consumption will rise in the same
period by another 7,000,000,000 gallons per day. By 1975 the total
prospective increase for domestic and industrial use over present amounts
will be 145 percent-equal to the additional supply of 145 New York cities,
requiring the flow of about 11 Colorado rivers."
4. 1 Commission on Organization of the Executive Branch of the Govern-
ment, Task Force Report on Water Resources and Power, p. 29 (1955)
(hereafter referred to as Task Force Report on Water Resources).
"The very nature of most water problems makes them, basically, local
and regional. The paramount importance of local requirements, and
the wide divergence in the country among local water supplies and needs,
makes this inevitable."
5. 1 U.S. President's Water Resources Policy Commission, pp. 19-41
(1950) (hereafter referred to as President's Water Policy Commission);
3 Task Force Report on Water Resources, p. 1687 (1955).
6. 1 Task Force Report on Water Resources, p. 29 (1955); Martz, supra
note 2.








AND THE LAW


I. NATURE OF THE INTERSTATE COMPACT UNDER THE FED-
ERAL CONSTITUTION
American colonial experience had taught the need for some
method of settling interstate disputes in a civilized manner without
resort to armed force. 7 Prior to the Revolutionary War the King's
Privy Council acted as the arbiter in adjustment of colonial disputes.
Under the Articles of Confederation provision was made for inter-
state agreements and resort to Congress in the settlement of state
disputes. 8 Both of these concepts, adjudication and agreement,
were incorporated into the United States Constitution. But in a suit
between states the Supreme Court of the United States, rather than
Congress, has original jurisdiction.9 And the Compact Clause of
the Constitution is phrased in the following negative fashion:

No State shall, without the Consent of Congress,...enter into
any Agreement or Compact with another State, or with a
foreign Power.... 10


A. What Does the Compact Clause Encompass?
From the language of the Compact Clause it clearly appears to
include all agreements or compacts between states. However, there
has been a great deal of discussion and difference of opinion as to
the exact scope of this constitutional provision. It has been con-
tended that this prohibition against interstate agreements without the
consent of Congress includes only agreements which increase or de-
crease the political power of the states or the national government.ll
7. Frankfurter and Landis, "The Compact Clause of the Constitution-A
Study in Interstate Adjustments," 34 Yale L.J. 685 (1925).
8. Thursby, Interstate Cooperation (1953), c. I; the Articles of Confeder-
ation provided:
No state without the Consent of the united states in
congress assembled, shall...enter into any conference,
agreement, or alliance or treaty with any King, prince
or state.... No two or more states shall enter into any
treaty, confederation or alliance whatever between them,
without the consent of the united states in congress assembled,
specifying accurately the purposes for which the same is to
be entered into, and how long it shall continue. (Art. VI).
9. U.S. Const., Art. III, 2.
10. U.S. Const., Art. I, 10.
11. See Bruce, "Compacts and Agreements of States," 2 Minn. L. Rev.
500, 516 (1918), where the writer concludes: "Perhaps the true rule
is that all compacts or agreements which increase or decrease political
power are void, but that all others are voidable merely, at the option
of the national government, and that a consent thereto may be inferred
from silence and acquiescence."








WATER RESOURCES


Mr. Justice Field gave rise to this theory in the case of Virginia v.
Tennessee. There he posed the problem and its solution in these
terms:

There are many matters upon which different States may
agree that can in no respect concern the United States. If,
for instance, Virginia should come into possession and owner-
ship of a small parcel of land in New York which the latter
State might desire to acquire as a site for a public building,
it would hardly be deemed essential for the latter State to
obtain the consent of Congress before it could make a valid
agreement with Virginia for the purchase of the land.... If,
then, the terms "compact" or "agreement" in the Constitution
do not apply to every possible compact or agreement between
one State and another, for the validity of which the consent of
Congress must be obtained, to what compacts or agreements
does the Constitution apply?


Looking at the clause in which the terms "compact" or
"agreement" appear, it is evident that the prohibition is dir-
ected to the formation of any combination tending to the in-
crease of political power in the States, which may encroach
upon or interfere with the just supremacy of the United States.12

There is respectable authority for a view contrary to the dictum
of Justice Field. This opposite theory would be that the language of
the Constitution is quite clear that all interstate agreements require
congressional consent as the very purpose of the provision was to
assure the protection of the national interest in multi-state com-
pacts.-13 There is yet another point to this contention. Even under
the test of Field there is grave uncertainty as to what agreements
and compacts encroach upon the sphere of national supremacy. The
determination of that question ought not to be left to the judgment of
the states involved; it is really a matter of national concern. This
brings the matter back to Congress as the organ of government
charged by the Constitution with a negative control over interstate
compacts. 14 Finally, ,it is difficult to perceive how any compact of
real consequence would not so encroach upon or interfere with the

12. 148 U.S. 503, 518-519 (1893).
13. See Dunbar, "Interstate Compacts and Congressional Consent," 36 Va.
L. Rev. 753 (1950), where the author gives the pros and cons of the
argument but inclines to the proposition that all compacts probably
must obtain congressional approval.
14. Ibid. Mr. Dunbar does point out the dicta of other cases which sup-
port the theory of Justice Field but sets out the difficulties inherent
in this position and cites other authorities contrary to the Field
concept.








SAND THE LAW


just supremacy of the national government that compacts of any sig-
nificance would require congressional consent. Besides, compacting
states would be most reluctant, if not completely unwilling, to take
action under any agreement of importance without having obtained
the consent of Congress.
Contemporary law review commentators are in disagreement as
to when congressional consent is required for interstate agreements.
The postulate of one writer is that few interstate compacts require
congressional consent, pointing out that no interstate compact has
ever been invalidated by the Supreme Court because of lack of con-
sent by Congress. His conclusion is that no congressional consent
Sis necessary for the Southern University Interstate Agreements. 15
In direct opposition to that conclusion, another commentator quite
emphatically argues that not only do the Southern University Agree-
ments require congressional consent, but that all interstate com-
pacts and agreements need the assent of Congress. 16
However, in respect to interstate compacts affecting interstate
waters it is clear that congressional consent is a requisite. Inter-
state water agreements overlap the federal areas of navigation,
reclamation, power, and flood control. It would be a reckless and
foolhardy group of states which would compact over interstate waters
without congressional consent, when such an agreement would be
subject to very serious, if not fatal, constitutional objections and
would in all likelihood be held invalid. Moreover, in this area fed-
eral cooperation is essential. The constitutional prohibition against
interstate compacts or agreements without the consent of Congress
clearly appears to encompass water compacts, and it would be pure-
ly academic theorizing to speculate about areas where perhaps no
congressional consent is required. Even apart from constitutional
considerations all practical matters dictate that compacting states
dealing with interstate waters obtain the consent of Congress. All
water compacts have, in fact, obtained, congressional consent, there-
by indicating the states' understanding of the necessity for comply-
ing with the constitutional requirement. Therefore, because of the
obvious areas of federal concern, the practical considerations in-
volved, and the states' understanding of the consent requirement, it
is concluded that for interstate water compacts congressional con-
sent is essential. 17
15. Ferguson, "The Legal Basis for a Southern University-Interstate Agree-
ments Without Congressional Assent," 38 Ky. L.J. 347 (1950).
16. See Dunbar, supra note 13.
17. The constitutional prohibition against concluding interstate compacts
without the consent of Congress extended only to compacts made after
the adoption of the Constitution and does not invalidate or require








WATER RESOURCES


B. How Congressional Consent Is Given
The Constitution is silent on the method, means, or procedure
Congress is to use in consenting to interstate compacts. From this
silence the Supreme Court has determined that the mode and form
of consent has very properly been left "to the wisdom" of Congress
"to be decided upon according to the ordinary rules of law, and of
right reason. "18 Since Congress alone determines the method of
providing consent, it is C6ngress which will determine what are
"ordinary rules of law and right reason."19 Congress may then
manifest its assent to an interstate compact in any form of action
signifying acquiescence to the terms of the compact. 20
Congressional consent may precede or follow the making of the
compact; the consent may be either express or implied, and it may
be by statutory enactment or merely by joint resolution. 21 Even
though no compact on a specific subject is in existence, Congress
may pass a "consent in advance" act which gives the requisite con-
gressional assent for cbmpacts in the specified field without the
necessity of states submitting such compacts to Congress for any
further action. 22 Examples of this type of assent in advance by
Congress are the Conservation of Forests and Water Supply Act of
191123 and the Crime Control Act of 1934. 24 These "consent in
advance" acts are usually general in nature, assenting to all com-
pacts made in the desired area by any states. However, Congress
may also provide for specific "consent in advance" to a desired sin-
gle compact between enumerated states. 25 Another variety of "con-
sent in advance" enactments arises when Congress encourages the
making of compacts in an area by providing general assent subject
(Footnote continued)
congressional consent for any pre-existing compacts. Wharton v. Wise,
153 U.S. 155, 171, 14 S.Ct. 783 (1894); but the court there made it
clear that even existing compacts at the date of the Constitution's a-
doption were subject to abolition if conflicting with congressionally
exercised power. Pre-constitutional compacts no longer exist.
18. Green v. Biddle, 8 Wheat. 1, 85-86 (1823).
19. See Thursby, Interstate Cooperation (1953), c. III.
20. See Note, "A Reconsideration of the Nature of Interstate Compacts,"
35 Col. L. Rev. 76 (1935).
21. See Green v. Biddle, supra note 18; Virginia v. Tennessee, supra
note 12; Wharton v. Wise, supra note 17; Thursby, supra note 19.
22. See Zimmermann and Wendell, The Interstate Compact Since 1925,
pp. 91-93 (1951).
23. 36 Stat. 961 (1911).
24. 48 Stat. 909 (1934).
25. An example of this was the Joint Resolution of June 10, 1910 where
Congress gave assent to any compact dealing with boundaries and
criminal jurisdiction between Missouri and Kansas, 36 Stat. 881 (1911).








AND THE LAW


to the submission of each completed specific compact to Congress
for approval. 26 Most "consent in advance" acts are of this type
and differ considerably from acts which do not require submission
of completed compacts to Congress for approval.
After states enter into compacts congressional consent may be
expressly given by act or joint resolution. State submission of con-
cluded agreements to Congress for specific and express approval is
the normal method for obtaining compact ratification. 27 A compact
of any consequence would want this express approval of Congress so
as to preclude any dispute over the validity of the compact. How-
ever, the congressional assent to completed compacts may be mani-
fested by congressional action which recognizes the compact by en-
acting legislation in related fields so as to signify its consent by
means of acquiescence. 28 Although related action by Congress may
imply consent to a compact, it is seriously doubtful that inaction
alone by Congress would amount to assent in any case. 29
Although the Compact Clause in the Constitution speaks only of
congressional consent, it is generally conceded that congressional
action requires the approval of the President. 30 The language of
the Constitution pertaining to compacts speaks only of requiring the
consent of Congress; the Constitution does not spell out whether the
Compact Clause was intended to be equated with the section requir-
ing presidential approval of legislative action. This may give rise
to an argument that it is not necessary for presidential action. 31
But established usage and custom shows that all congressional action
involving interstate compacts has been submitted to the President for
approval or disapproval. 32 The original Republican River Compact

26. See Water Pollution Control Act of 1948 (62 Stat. 1155); Zimmermann
and Wendell, supra note 22 at 92.
27. See for example the list of compacts through 1925 as set out in an
Appendix to the excellent article by Frankfurter and Landis, supra
note 7.
28. Virginia v. Tennessee, supra note 12.
29. See Note, "A Reconsideration of the Nature of Interstate Compacts,"
supra note 20.
30. U.S. Const., Art. I, 7, C1. 3, provides: "Every Order, Resolution,
or Vote to which the Concurrence of the Senate and House of Repre-
sentatives may be necessary... shall be presented to the President of
the United States; and before the Same shall take Effect, shall be
approved by him, or being disapproved-by him, shall be repassed by
two-thirds of the Senate and House of Representatives, according to
the Rules and Limitations prescribed in the Case of A Bill"; see
Friedrich, "The Settlement of Disputes Between States Concerning
Rights to the Waters of Interstate Streams," 32 Iowa L. Rev. 244
(1947).
31. See Zimmermann and Wendell, supra note 22 at 94.
32. ]bid.


.._








WATER RESOURCES


was vetoed by President Roosevelt on April 2, 1942, after Congress
had given its assent. A new compact was negotiated to meet the
President's objections, and the revised Republican River Compact
was approved by both Congress and the President. 33
Congressional consent to proposed compacts may not alter the
wording of the compact, since that alteration would be tantamount
to refusal of ratification. This inability causes great inflexibility in
the compact-making process, because if Congress withholds consent
due to the desirability of even a minor revision, the compact must
be returned to the states for their unanimous approval, which tends
to exert pressure on the Congress and the President to accept un-
satisfactory compact provisions that affect federal interests rather
than to suggest needed corrections. Such alterations would necessi-
tate resort to the cumbersome process of state ratification again. 34
C. The Effect of Congressional Consent
Congressional consent to an interstate compact does not diminish
its jurisdiction or sphere of legislative action. 35 The Supreme
Court has clearly pointed, out that congressional consent to a com-
pact does not operate to restrict proper congressional jurisdiction
because otherwise "congress' and two States would possess the power
to modify and alter the constitution itself. "36 Congress may still
regulate within its proper constitutional area despite inconsistency
with a compact. A compact within the constitutionally delegated
authority of Congress is abrogated pro tanto when the subsequent
33. 57 Stat. 86 (1943); See Friedrich, supra note 30; Zimmermann and
Wendell, supra note 22 at 94. After the President's veto the states
involved investigated the possibility that no presidential action was
necessary but finally determined that the Constitution required action
by the Chief Executive. This is the only instance where a President
has ever vetoed a compact.
34. 3 Task Force Report on Water Resources, pp. 1691-1692 (1955):
The compact is the contract of the party States and only
they may alter it. If the Federal Government insists on
changes as a condition of granting consent, the compact
must be altered by mutual consent of the States, and there
must be reratification by each.... This aspect of the in-
flexibility of compacts is important not only because it
demonstrates the difficulty of compact amendment but
because it tends to place pressure on the Federal Govern-
ment to accept unsatisfactory compact provisions which
directly affect Federal interests.
35. State of Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How.
421, 433 (1855), a continuation of the litigation first reported at 13
How. 518 (1852).
36. Ibid.








AND THE LAW


exercise of those powers by Congress is equivalent to the withdrawal
of consent. 37 By the same reasoning neither can the power of Con-
gress be enlarged by its consent to an interstate compact. 38 The
constitutional reservoir of congressional power remains unchanged.

III. STATE ACTION IN THE FORMATION OF COMPACTS
Although congressional action may be constitutionally required
to make a valid compact, still the moving force-the planning, the
negotiating, and the drafting-is the responsibility of the respective
states. Really basic to an understanding of interstate agreements
and compacts is a study of the legal machinery employed by the
states in the formation of these agreements and compacts.
Since the several state constitutions do not provide any means
or procedure for negotiating interstate agreements, custom and
usage have filled the void and provided general modes of operation.
They have been anything but an exact methodology. 39 From early
colonial custom there evolved the use of joint compact commissions,
composed of members from all of the interested states, to negoti-
ate and draft the compacts. 40 If, however, a federal interest is in-
volved (as it normally would be in regard to water compacts), gen-
erally a representative of the national government will be appointed
to sit with the state commissioners in formulating the provisions of
the compact. 41 The negotiation of almost all interstate water com-
pacts has included a federal representative, as would be expected by
the importance of such compacts both regionally and nationally. 42
The negotiated compact is then submitted to the state legislatures
and governors for final state ratification. Of more recent vintage
is the operation of extra-legal commissions in particular fields, not
having been appointed by any of the interested states, which study
an acute problem, draft a proposed remedial type compact, and sub-
mit it to the respective state legislatures for consideration and pos-
sible ratification. 43 A concomitant effect of this latter type of
37. See Rubenstein, "The Interstate Compact-A Survey," 27 Temple L.Q.
320 (1954); Note, supra note 20.
38. See Hamburg American Steamship Co. v. Grube, 196 U.S. 407, 25
S.Ct. 352 (1905).
39. See Frankfurter and Landis, supra note 7. As has previously been
noted, this is the parallel situation with respect to the Federal Consti-
tution which does not provide any methods of procedure for the states
in concluding interstate compacts.
40. See Zimmermann and Wendell, supra note 22.
41. Friedrich, supra note 30.
42. See 3 Task Force Report on Water Resources, p. 1695 (1955).
43. Zimmermann and Wendell, supra note 22. The Council of State
Governments has been most active in this regard and was effective in
formulating and having the states enter into the Interstate Compact for
the Supervision of Parolees and Probationers.








WATER RESOURCES


activity has been a two-step procedure where recommended enabling
legislation is passed by the legislature of a state authorizing the gov-
ernor to execute a particular compact. Although the governor has
signed the authorization act, there still remains the second step
whereby the governor may or may not execute the proposed com-
pact. 44
These are but examples of any number of variations which the
states may devise to accomplish the formulation and ratification of
interstate compacts. The states may, and often do, condition their
ratification upon other designated states also ratifying the compact.45
The states may also condition effective ratification upon certain des-
ignated action being taken by the Federal Congress. However, a
state cannot make such reservations as will alter the meaning of a
compact unless all of the other states to the compact consent to the
alteration. In this respect it is similar to the offer and acceptance
aspects of ordinary contract law. Any amendment to a compact re-
quires the same general formality and procedure-there must be
unanimous consent by all of the states to the proposed amendment,
congressional consent to the change, and the approval of the Presi-
dent. When only two states are parties to a compact, necessary
amendments may be more readily made,46 but with each additional
state the difficulties of amendment are correspondingly multiplied.
The governor of a state, unlike the President of the United
States, in making executive agreements does not have any broad
power and discretion to conclude a compact in any desired field with
the necessary states. The governor can conclude interstate agree-
ments only with legislative authorization. 47 This lack of state
executive power, taken in conjunction with the requirement for each
individual state approval, the requirement of congressional consent

44. Ibid.
45. Zimmermann and Wendell, supra note 22 at 88, n. 320 (1951), where
the authors report:
In the Ohio River Valley Sanitation Compact a number of
states conditioned their participation upon ratification by cer-
tain other designated states.... West Virginia conditioned its
,approval upon the entrance of New York, Pennsylvania, Ohio,
and Virginia; Ohio required action by New York, Pennsyl-
vania, and West Virginia; Pennsylvania required New York,
Ohio, and West Virginia; and in 1949 Tennessee required like
action by Alabama and North Carolina before its ratification
would become effective. Indiana, Illinois, New York, Ken-
tucky, and Virginia entered without reservations.
46. The New York Port Authority with just New York and New Jersey has
been amended numerous times since its inception.
47. See Zimmermann and Wendell, supra note 22 at 88.








AND THE LAW


and presidential signature, makes the formation of interstate com-
pacts even more cumbersome and inflexible than the negotiation of
a treaty with a foreign nation by this country.

IV. EFFECT OF INTERSTATE COMPACTS ON SIGNATORY STATES
Once a state has entered into a valid interstate compact, that
agreement becomes a binding obligation which the state may not re-
pudiate. This much is certain. However, difficulty arises in for-
mulating the rationale for this result and, of much greater practical
importance, the means and methods of obtaining enforcement.
A. Status of Compacts
In the early case of Green v. Biddle48 the Supreme Court of
the United States found that a signatory state to a compact could not
nullify any of the provisions of that compact, basing its decision on
the theory that this would be an abridgment of contract in violation
of the Federal Constitution. This impairment of contract theory
found acceptance by the Supreme Court as late as 1930.49 But this
concept suffers from the infirmity that the Contract Clause of the
Constitution serves only to invalidate legislative acts of a state while
a state might simply refuse to comply with the provisions of "a com-
pact and yet pass no law which in any manner impairs the obliga-
tions under the interstate compact. 50 If, however, a state legisla-
ture enacted a statute in direct contravention of interstate compact
obligations, it is theoretically possible that the legislation could be
invalidated as a law impairing the obligation of contracts. This re-
sult is unlikely since states have failed to abide by their compact
obligations through inaction or action by other than the passage of
legislation.
At one time it was postulated by the Supreme Court that by the
consent of Congress, compacts thereby became federal law and
were binding upon the signatory states by reason of the Supremacy
Clause of the Constitution. 51 This idea was expressed in Pennsyl-
vania v. Wheeling & Belmont Bridge Co. 52 as follows: "This

48. 8 Wheat. 1 (1823).
49. Kentucky v. Indiana, 281 U.S. 163, 50 S. Ct. 275 (1930).
50. U.S. Const., Art. I, 10, provides in part: "No State shall...pass any
S.. Law impairing the Obligation of Contracts.... "
51. U.S. Const., Art. VI, C1. 2, provides in part: "This Constitution, and
the laws of the United States which shall be made in Pursuance there-
of... shall be the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the Constitution or Laws of
any State to the Contrary notwithstanding. "
52. 13 How. 518, 566 (1852); see continuation of this litigation at 59 U.S.
421 (1855).








WATER RESOURCES


compact, by the sanction of Congress, has become a law of the
Union ... No State law can hinder or obstruct the free use of a
license granted under an act of Congress. Nor can any State vio-
late the compact...." Justice Holmes, writing in subsequent deci-
sions, confirmed this principle, that a compact, by the consent of
Congress, becomes a law of the Union. 53
However, this theory suffers from the infirmity that the power
of Congress to consent hardly implies the power to command. Can
the congressional consent to an agreement among a limited number
of states be construed as a legislative fiat for the whole nation? In
Hinderlider v. LaPlata River & Cherry Creek Ditch Co. 54 the Su-
preme Court finally and clearly rejected the notion that an interstate
compact is either a treaty or statute of the United States; therefore,
a dispute over a compact could not be appealed under the judicial
code in the same manner as a national treaty or statute, if held in-
valid, could be appealed. 55 Over sixty years prior to the Hinder-
lider case the Supreme Court had decided that a compact was not a
federal statute or federal law and that the construction of such com-
pacts did not involve a federally reviewable question. 56 Mr. Justice
Brandeis, writing for the Court in the Hinderlider case, did not at-
tempt to rationalize all of the cases which had shifted on the issue
first one way and then another; he observed only that the cases had
not been uniform on the question of whether the interpretation of an
interstate compact presented a federal question, and then concluded
that the compact dispute over the apportionment of interstate waters
presented a federal question. Then in 1940, two years subsequent
to the Hinderlider decision, the Supreme Court attempted to clarify
the picture. In Delaware River Commission v. Colburn57 Justice
53. Wedding v. Meyler, 192 U.S. 573, 582, 24 S.Ct. 322 (1904), where
the language in Pennsylvania v. Wheeling & Belmont Bridge Co., supra
note 52, was quoted with approval; Missouri v. Illinois, 200 U.S. 496,
519, 26 S.Ct. 268 (1906): "The Compact, by sanction of Congress,
had become a law of the Union."
54. 304 U.S. 92, 109, 58 S.Ct. 803 (1938), reh. den. 305 U.S. 668, 59
S.Ct. 55 (1939).
55. Id. at 109: "The assent of Congress to the compact between Colo-
rado and New Mexico does not make, it a 'treaty of statute of the
United States' with the meaning of 237(a) of the Judicial Code."
56. People v. Central Railroad, 12 Wall. 455, 456 (1872), where the
court in dismissing an appeal said of the compact: "The assent of
Congress did not make the act giving it a statute of the United States,
in the sense of the 25th section of the Judiciary Act." The court did
not even mention the earlier Pennsylvania v. Wheeling & Belmont
Bridge Co. case, supra note 52, where the Supreme Court had in
1852 held that by the assent of Congress the compact had become a
law of the nation.
57. 310 U.S. 419, 427, 60 S.Ct. 1039 (1940).








i AND THE LAW


Stone, speaking for a unanimous court stated this conclusion:
In People v. Central Railroad.... jurisdiction of this
Court to review a judgment of a state court construing a
compact between states was denied on the ground that the
Compact was not a statute of the United States and that the
construction of the Act of Congress giving consent was in no
way drawn in question, nor was any right set up under it.
This decision has long been doubted,... and we now conclude
that the construction of such a compact sanctioned by Congress
by virtue of Article I, 10, Clause 3 of the Constitution, in-
volves a federal "title, right, privilege or immunity" which
when "specially set up and claimed" in a state court may be
reviewed here on certiorari....

The Court, speaking through Justice Stone, did not repudiate the ra-
tionale of People v. Central Railroad which found that a compact is
not a treaty or statute of the United States but rather confirmed that
proposition. But the Court did finally make clear that the construc-
tion or interpretation of an interstate compact does involve a federal
question which the Supreme Court may review by certiorari. In the
most recent pronouncement of the United States Supreme Court on
the subject, it is made certain that compacts do not become federal
laws, do not come under the Supremacy Clause of the Constitution,
and do not-come before the appellate power of the Court by appeal
as of right but are reviewed only by certiorari; equally clear from
that case is the reaffirmation of the principle that the construction
of a compact does involve a federal question on which the United
States Supreme Court is the final arbiter. 58 There has been then
this sequence of events regarding the status of compacts and their
interpretation:
1852 a compact is declared to be a national law;
1871 a compact, by the assent of Congress, does not
become a national law;
1904 a compact is a national law;
1906 reaffirmation that a compact is a national law;
1938 a compact is not a national law but a compact dispute
over apportionment of interstate waters presents a
federal question;
1940 reaffirmation that a compact is not national law but
the construction of a compact involves a federal
question;
1951 reaffirmation that a compact is not national law but the
construction of a compact involves a federal question
on which the federal court is the final arbiter.
58. Dyer v. Sims, 341 U.S. 22, 71 S.Ct. 557 (1951).








WATER RESOURCES


B. United States Supreme Court Jurisdiction Over Compacts
If a controversy arises over the interpretation or validity of a
compact between states as parties, then obviously the Supreme
Court will not exercise judicial review but will entertain the dispute
initially under its original jurisdiction as conferred by the Constitu-
tion. 59 If the dispute over an interstate compact occurs between
private citizens of different states, then the federal courts may have
jurisdiction under the diversity provision, and the Supreme Court
can review by certiorari. 60 Finally, if the dispute is between citi-
zens of the same state or between a state and its citizens, then
there can also be review by certiorari of state court decisions. 61
Although it is not material what theory operates insofar as oppor-
tunity for review is concerned, the theory may be of importance in
determining whether review as of right by appeal or discretionary
review by certiorari is applicable. If a compact is thought of as a
national law and a decision is rendered in a lower court against its
validity, an appeal will lie; if the compact is thought of as involving
only a "federal title, right, privilege, or immunity," then review
of a state or lower federal court decision holding against the valid-
ity of a .compact may be reviewed by certiorari. 62 Where impor-
tant rights or a far-reaching compact are involved, this difference
is not significant, since the Supreme Court will undoubtedly grant
certiorari; but where lesser compacts or rights are involved, the
difference may be significant, for the Supreme Court may deny cer-
tiorari. This is one reason that the present determination of the
Court holding compacts not to be federal law is important.
C. Obligation of States
A signatory state to an interstate compact is bound by the terms
of that agreement and the state may not alter, amend, or repudiate
that compact except in accordance with the provisions of the agree-
ment. 63 The compact binds the private citizens of a state as well
as the state itself so that individual rights are affected along with
sovereign rights. Thus states may alter, or even abrogate, private

59. U.S. Const., Art. III, 2, Cl. 2.
60. U.S. Const., Art. III, 2, Cl. 1; 28 U.S.C. 1254.
61. Delaware River Comm'n v. Colburn, supra note 57; 28 U.S.C.
1257.
62. Supra note 61.
63. See Hinderlider v. La Plata Co., supra note 54; Delaware River
Comm'n v. Colburn, supra note 57; Green v. Biddle, supra note 18;
Kentucky v. Indiana, supra note 49; Naujoks, "Compacts and Agree-
ments Between States and Between States and a Foreign Power," 36
Marq. L. Rev. 219 (1953).








AND THE LAW


water rights by means of interstate water compacts. 64 The signa-
tory states are not the final judges of the interpretation or applica-
tion of the compact-as it has previously been demonstrated the Su-
jpreme Court is the final arbiter and affords the opportunity for re-
Iview of all compacts by either exercising its original jurisdiction or
granting review by certiorari. 65
Although apparently a state may not enter into a compact which
is in clear and direct violation of its state constitution, the state
itself is not the final authority on whether the compact does in fact
violate the state constitution. In the recent case of Dyer v. Sims66
this question was determined by the United States Supreme Court in
a situation presenting a most unusual fact situation. West Virginia
entered into the Ohio River Valley Water Sanitation Compact67 with
seven other states in order to control the pollution of waters in the
Ohio River basin. When the legislature of West Virginia appropri-
ated money for the state's contribution to the expenses of the com-
pact commission, the state auditor refused to issue state warrants
for such amount, and mandamus proceedings were brought to compel
Sthe auditor to issue the warrants. The West Virginia Supreme
SCourt refused to issue a writ of mandamus, holding that the state
!was precluded from entering into the compact inasmuch as the com-
pact conflicted with the constitution of West Virginia in that "(1) the
Compact was deemed to delegate West Virginia's police power to
Other States and to the Federal Government, and (2) it was deemed
to bind future legislatures to make appropriations for the continued
activities of the Sanitation Commission and thus to violate Art. X,
4 of the West Virginia Constitution. "68

64. Poole v. Fleeger, 11 Pet. 185 (1837); Hinderlider v. La Plata Co.,
supra note 54 at 106:
Whether the apportionment of the water of an interstate
stream be made by compact between the upper and lower
States with the consent of congress or by a decree of this
Court, the apportionment is binding upon the citizens of
each State and all water claimants, even where the State
had granted the water rights before it entered into the
compact. That the private rights of grantees of a State
are determined by the adjustment by compact of a dis-
puted boundary was settled a century ago....
65. Delaware River Comm'n v. Colburn, supra note 57; Dyer v. Sims,
supra note 58.
66. Supra note 58.
67. 54 Stat. 752 (1940); included in this compact were: Illinois, Indiana,
Kentucky, New York, Ohio, Pennsylvania, Tennessee and West Virginia.
68. The West Virginia holding was thus characterized by Justice Frankfurter
in Dyer v. Sims, supra note 58 at 26.
Pertinent portions of the compact were:








WATER RESOURCES


Normally, a state court's interpretation of the meaning of its
own constitution would be controlling upon the federal courts, but
(Footnote continued)
Article VI. All sewage from municipalities or
other political subdivisions,... permitted to flow into
these portions of the Ohio River and its tributary waters,...
shall be so treated, within a time reasonable for the
construction of the necessary works, as to provide for
substantially complete removal of settleable solids, and
the removal of not less than...(45%) of the total sus-
pended solids; provided that, in order to protect the
public health or to preserve the waters for other legiti-
mate purposes, including those specified in Article I, in
specific instances such higher degree of treatment shall be
used as may be determined to be necessary by the Com-
mission after investigation....
All industrial wastes discharged... into the afore-
said waters shall be modified or treated,... in order to
protect the public health or to preserve the waters for
other legitimate purposes,...to such degree as may be
determined to be necessary by the Commission after
investigation....
The Commission is hereby authorized to adopt,
prescribe and promulgate rules, regulations and standards
for administering and enforcing the provisions of this
article.
Article IX. The Commission may from time to
time... issue an order or orders upon any municipality,
corporation, person, or other entity discharging sewage
or industrial waste into the Ohio River....
It shall be the duty of the municipality, corporation,
person or other entity to comply with any such order
issued against it or him by the Commission.... The
Commission... shall have power to institute in such
court any action for the enforcement of such order.
Article X. The signatory States agree to appro-
priate for the salaries, office and other administrative
expenses, their proper proportion of the annual budget
as determined by the Commission and approved by the
Governors of the signatory States....
Article X, 4 of West Virginia's Constitution provided: "No debt shall
be contracted by this State, except to meet casual deficits in the rev-
enue, to redeem a previous liability of the State, to suppress insur-
rection, repel invasion or defend the State in time of war; but the
payment of any liability other than that for the ordinary expenses
of the State, shall be equally distributed over a period of at least
twenty years."






-i

AND THE LAW 371

not with respect to interstate compacts. Mr. Justice Frankfurter,
in writing for the Court in the Dyer case, held that where a signa-
tory state attempts to repudiate its compact obligations on the
ground that the compact conflicts with the state constitution, the Su-
preme Court may, in this limited situation, reinterpret the state
constitution. The Supreme Court then proceeded to do just that and
found that nothing in the West Virginia Constitution prohibited the ob-
ligations undertaken in the interstate compact, thus reversing the
West Virginia Supreme Court's interpretation of its own state con-
stitution. The language of the Court in this regard makes clear the
dominant role the Supreme Court of the United States will take in
any interpretation of interstate compacts:

Just as this Court has power to settle disputes between States
where there is no compact, it must have final power to pass
upon the meaning and validity of compacts. It requires no
elaborate argument to reject the suggestion that an agreement
solemnly entered into between States by those who alone have
political authority to speak for a State can be unilaterally
nullified, or given final meaning by an organ of one of the
contracting States. A State cannot be its own ultimate judge
in a controversy with a sister State. To determine the nature
and scope of obligations as between States, whether they arise
through the legislative means of compact or the "federal
common law" governing interstate controversies,... is the
function and duty of the Supreme Court of the Nation. Of
course, every deference will be shown to what the highest
court of a State deems to be the law and policy of its State,
particularly when recondite or unique features of local law
are urged. Deference is one thing; submission to a State's
own determination of whether it has undertaken an obligation,
what that obligation is, and whether it conflicts with a dis-
ability of the State to undertake it is quite another.69

All of the members of the Supreme Court were in agreement with
the result of the Dydr case; Justice Reed, in a concurring opinion,
would have placed the result on the Supremacy Clause of the Consti-
tution, thus adopting the position that a compact becomes a national
law or treaty; Justice Jackson, in a concurring opinion, would have
placed the decision on estoppel-where a state induces other states
to enter into an interstate compact, it is precluded from repudiating
this agreement. 70 From the opinion of the Supreme Court it is
69. Dyer v. Sims, supra note 58 at 28.
70. From the viewpoint of states' sovereignty and considerations of sound
legal criteria, the commentators would approve Justice Frankfurter's
opinion. See Abel, "Ohio Valley Panorama," 54 W. Va. L. Rev. 186
(1952); Ladendorff, "Interstate Compacts-An Exception to the Rule of
Supremacy of State Court Decisions," 7 Intramural L. Rev. 249



i








WATER RESOURCES


quite apparent that the court will strongly tend to construe compacts
and state constitutions in a compatible manner so as to uphold the
binding effect of these agreements. The state constitutional provi-
sion would have to be very clear and explicit, not at all equivocal,
before the Supreme Court would find that the compact was prohibited
by the state constitution; invalidation of a compact will not be im-
plied from involved general argument concerning the meaning of a
state constitution. 71 Under any circumstances it is clear that the
Supreme Court will be the final judge of the validity and meaning of
interstate compacts, even though this involves reassessment of a
state pronouncement of its own law. It is apparent from this case
(and other Supreme Court opinions) that the Supreme Court will al-
most universally uphold the validity of interstate compacts, and the
compact will be interpreted liberally to accomplish the purposes of
the agreement.
D. Obligatory Effect on Private Property Rights
An interstate compact is binding, not only on the signatory
states but on all of the private citizens of the signatory states as
well. '2 Private water rights may be altered or abridged by a water
compact "even where the State had granted the water rights before
it entered into the compact. "73 Riparian or prior appropriation
rights are thus subject to extensive modification, if not outright
abolishment, by the state entering into an interstate compact which
so affects these rights. There are, however, two factors operating
against a compact extinguishing private water rights. The first is
the practical and political one that a state would be unlikely to ob-
tain the necessary approval of the state legislature and the governor
for such a compact. The second is a legal impediment that appar-
ently a state cannot validly enter into a compact which violates the
state or federal constitutions. 74

(Footnote continued)
(N.Y.U., 1952), where the author suggests that under the theory of
Frankfurter the Supreme Court could reinterpret a state constitution
also where a state determines that a compact does not violate its
constitution. Under Justice Reed's theory of a compact as a law of
the nation and Justice Jackson's theory of estoppel, the compact would
be binding even if it clearly and directly violated a state constitution.
71. Dyer v. Sims, supra note 58; see Zimmermann and Wendell, "The
Interstate Compact and Dyer v. Sims," 51 Col. L. Rev. 931 (1951).
72. Poole v. Fleeger, supra note 64; Hinderlider v. La Plata Co., supra
note 54.
73. Hinderlider v. La Plata Co., supra note 54 at 106.
74. See Dyer v. Sims, supra note 58.








AND THE LAW


SHowever, the legal.difficulty is really not much of an impedi-
ment. It is quite certain that the United States Supreme Court is
not going to construe federal "due process" as an obstacle to inter-
state compact regulation of economic interests anymore than it will
use "due process" to strike down legislative regulation of property
interests. 5 So there is little danger of an interstate compact being
invalidated because it conflicts with the Federal Constitution on the
matter of infringing upon economic interests. Although substantive
due process is still very much a force in the state courts, 76 the
state courts are not the final arbiters of their state constitutions
when the binding effect of interstate compacts is concerned. 77 When
interpreting state legislation, the state courts are supreme in deter-
mining whether the legislation violates the state constitution, and so
the state courts constitute a real force in maintaining "substantive
due process. "78 But the state courts are not nearly so potent a
force when interstate compacts infringe on private property rights.
When the validity of an interstate compact is questioned (which will
Undoubtedly affect other signatory states), the Federal Supreme
Court can reinterpret a state constitution even though the state court
Shas held that the compact violates the state constitution. And before
the Federal Supreme Court will find that a compact is contrary to a
state constitution, it would seem that the state constitutional provi-
sion would have to be clearly explicit and not at all equivocal in
proscribing the interstate compact. 79 In view of the present Su-
ppreme Court attitude toward "substantive due process" and economic
regulation, it is extremely dubious that the Federal Court would con-
strue a state constitutional provision as prohibiting a compact which
infringed upon private water rights. The state constitutional provi-
sions protecting property interests are similar to the "due process"
Provisions of the Federal Constitution. 80 It is only reasonable to
expect that-the United States Supreme Court would interpret the state
constitutional provisions in the same fashion as the court has inter-
preted the like federal provisions. This conclusion is strengthened

75. See Paulsen, "The Persistence of Substantive Due Process in the
States,"'34 Minn. L. Rev. 91 (1950); Note, "State Views on Economic Due
Process: 1937-1953," 53 Col. L. Rev. 827 (1953); Williamson v. Lee
Optical Co., 348 U.S. 483, 75 S. Ct., 461 (1955), reh. den, 349 U.S.
925, 75 S.Ct. 657 (1955).
76. Supra note 75.
77. Dyer v. Sims, supra note 58.
78. Paulsen, supra note 75; Note, "State Views on Economic Due Process:
1937-1953," supra note 75.
79. Dyer v. Sims, supra note 58.
80. See Note, "State Views on Economic Due Process: 1937-1953," supra
note 75.


I








WATER RESOURCES


by the apparent intention of the Supreme Court to construe state con-
stitutions, wherever reasonably possible, in such a manner as to
sustain interstate compacts. 81 The Supreme Court of the United
States has never yet held any interstate compact invalid, and it is
quite unlikely that the Court would invalidate a compact which
abridged private water rights. So the interstate compact device may
offer some states a more liberal scope of permissible water regula-
tion of private rights than could be accomplished by state legislation.
E. Obtaining Enforcement of Compacts
Presumably there are two methods of obtaining ultimate enforce-
ment of an interstate compact. Where the Supreme Court entertains
a compact case, determines its validity, its specific application, and
enters a decree against a signatory state ordering compliance, then
our whole system of federal judicial review dictates that the decree
of the Supreme Court be not impotent-capable of being ignored by
the state. Ordinarily a state obeys a Supreme Court decree as a
matter of course and without difficulty. This is in keeping with a
well-ordered federal system. The sovereignty of the individual
states must be amenable to the power of the national sovereignty.
There have been notable instances of state defiance of Supreme Court
decisions with the federal court unable to enforce its decrees. 82 But
with the last century there have been no such spectacular cases of
open defiance, although the interminable litigation between Virginia
and West Virginia over the compact formed when West Virginia was
carved out of Virginia demonstrates the serious difficulty of obtain-
ing compliance from a recalcitrant state. 83 In Virginia v. West
SVirginia84 the Supreme Court made it clear that it would not permit
its judgment to become a nullity; that jurisdiction conferred on the
Supreme Court includes the inherent power to enforce its judgments
by appropriate remedial processes. 8? Enforcement through the
powers of the United States Supreme Court is then one method of

81. See Dyer v. Sims, supra note 58.
82. See Martin v. Hunter's Lessee, 1 Wheat. 304 (1816) [Virginia];
Cohens v. Virginia, 6 Wheat. 264 (1821) [Virginia]; Ableman v. Booth,
21 How. 506 (1859) [Wisconsin]; in 1830, Georgia ignored a writ of
error by the Supreme Court and executed the Cherokee Indian, Corn
Tassel, in a notoriously blatant defiance, Worcester v. Georgia, 6 Pet.
515 (1832) [Georgia].
83. This litigation finally terminated in Virginia v. West Virginia, 246 U.S.
565, 38 S.Ct. 400 (1918), when West Virginia finally paid the amount
of the judgment after having almost openly defied the Supreme Court
for a number of years.
84. Ibid.
85. See Powell, "Coercing a State to Pay a Judgment: Virginia v. West
Virginia," 17 Mich. L. Rev. 1 (1918).








AND THE LAW 375

obtaining compliance with interstate compacts. It is assumed that
the physical compulsion, if any, would be accomplished through the
officers of the court or the executive branch of government.
The second method of obtaining ultimate enforcement of an in-
terstate compact is through the legislative power of the Congress. 86
This congressional power to enforce compacts is plenary and may
be exerted in any appropriate manner within the constitutional power
of Congress. The Supreme Court has quite clearly set out this im-
plied congressional power:
The vesting in Congress of complete power to control agree-
ments between States, that is, to authorize them when deemed
advisable and to refuse to sanction them when disapproved,
clearly rested upon the conception that Congress...was con-
cerned with such agreements, and therefore was virtually en-
dowed with the ultimate power of final agreement which was
withdrawn from state authority and brought within the federal
power. It follows ss a necessary implication that the power
of Congress to refuse or to assent to a contract between States
carried with it the right, if the contract was assented to and
hence became operative by the will of Congress, to see to its
enforcement.... I-ving thus the power to provide, for the
execution of the contract, it must follow that the power is
plenary and complete, limited of course, as we have just said,
by the general rule Ithat the acts "done for its exertion must be
relevant and appropriate to the power.87

From the viewpoint of compacts being the solemn agreements of
sovereign states, negotiated and entered into through the legislative
and executive branches Of government, there must be a strong moral
Force compelling good faith state performance of its compact obliga-
tions. In most instances states will reflectively appreciate this fact
and act accordingly. The international law of treaties accords with
such principle of conduct. In fact, it has been suggested that the
compacts are judged both by private and international law and that
"the inefficacy of any attempt to impair its effect is explicable under
the rule of international law that a treaty may not be abrogated or
impaired by the subsequent act of one signatory alone."88

V. OTHER METHODS OF INTERSTATE SETTLEMENT
The interstate compact is not the only means available to the
states for settling disputes and reaching agreements. Neither the
efficacy of compacts nor an evaluation of their proved and potential
86. Virginia v. West Virginia, supra note 83.
87. Id. at 601-602; see also Friedrich, supra note 30.
88. Note, "A Reconsideration of the Nature of Interstate Compacts," supra
note 20 at 84.








WATER RESOURCES


merits can be made unless alternatives are examined. An instru-
ment for interstate agreement and administration may be deficient,
and yet be the best vehicle of state action available. Or perhaps
state action is unwise and primary responsibility should reside with
the federal government.
A. Methods of Interstate Cooperation Classified
For purposes of classification the means available to states in
adjusting differences may be categorized as constitutional methods
and extra-constitutional methods. The constitutional methods are:
1. Interstate compacts;
2. Interstate litigation before the Supreme Court;
3. Congressional legislation.
The extra-constitutional methods are:
1. Uniform state laws;
2. Reciprocal state legislation;
3. Uniform and harmonious state court decisions;
4. Governors' conferences;
5. Federal grants in aid to stimulate local action;
6. Fusion of state administrative agencies through cooperative
joint sessions and action to deal with legally separate parts
of a single common interest. 89
B. Extra-constitutional Methods
Although the Federal Constitution did not provide for these six
nonconstitutional methods of interstate cooperation, it is clear that
each of these methods serves a useful, perhaps indispensable, pur-
pose. Each in its proper sphere may be the best possible means
of settling troublesome problems arising under our federal system.
Yet it is equally apparent that these methods have severe limitations.
With the exception of the sixth, all of the outlined means are effica-
cious only where intrastate action exclusively is involved which re-
quires uniformity of treatment by the several states since diversity
of treatment would be "an interstate evil. "90 The first five enumer-
ated methods cannot treat of continuing, cooperative, administrative
action by states on an interstate level; they cannot adequately cope
with interstate disputes; they cannot provide the certainty of action
by any individual state which would induce large-scale action by
other states dependent upon continued like action of other states;

89. These latter six classifications are essentially those organized and
denominated by Frankfurter and Landis, supra note 7.
90. Frankfurter and Landis, supra note 7 at 687-690.








AND THE LAW


they cannot provide certitude of obligation by the participating states;
they cannot provide responsibility for state action; and they cannot
provide a unified administrative body to carry out the interstate ac-
tion. The reason these methods fail to meet these objections is
that all of them lack any legal status to create enforceable inter-
state obligations or to create a continuing interstate administrative
organization with any powers. 91 The sixth listed method is an abor-
tive type of interstate compact or agreement and manifests the inher-
ent qualities of the constitutional compact to such a degree that it
will be treated under the evaluation of interstate compacts. In this
respect such action might be construed as a compact under the Con-
stitution so as to require congressional consent. Where the sixth
method differs from the compact, providing no binding agreement,
no unified control, and no coercive control of each state action, then
it suffers from the infirmities previously attributed to the other five
types of action. All the extra-constitutional methods will continue
to function, and they should be expanded and utilized more often to
provide essential state cooperation and to foster a more smoothly
operating federation through purely voluntary action. But they do
not pre-empt the use of compacts where the other means are totally
inadequate. In the field of interstate water planning and administra-
tion it is abundantly clear that none of these methods is adequate to
meet the problems which require legally enforceable rights and
duties.
C. Constitutional Methods
1. Interstate Compacts. A critical appraisal of this method is
deferred to a final section evaluating compacts. The compact de-
vice, as the central theme of this discussion, has been examined in
some detail previously.
2. Interstate Litigation Before the Supreme Court. Interstate
disputes over water may be resolved by resort to the original juris-
diction of the Supreme Court of the United States. 92 The court
decree in such suits, like interstate compacts, binds not only the
91. It is obvious that the constitutional methods suffer in varying degrees
from many of these noted deficiencies. Yet the compact device offers
greater potential ability in these areas than does any of the five extra-
constitutional methods. The lack of recognized legal status appears
fatal to any of the first five methods as means of settling important
< interstate water problems.
92. U.S. Const., Art. III, 2, Cl. 2: "In all Cases affecting Ambassadors,
other public Ministers and Consuls, and those in which a State shall be
Party, the supreme Court shall have original Jurisdiction."








378 WATER RESOURCES

litigant states but the private citizens of those states as well. 93
When dealing with water disputes between sovereign states, the Su-
preme Court is faced with a myriad of recondite perplexities not
present in most other litigation.
How is allocation to be made of the waters of an interstate
river among the several states through which the waters flow? It
is absolutely clear that no sovereign state has a right to retain all
of the waters of an interstate stream; it is also equally certain that
no lower state can require the river to come to it undiminished and
unimpaired. 94 This rejection of absolute rights to the water in any
one sovereign state accords with principles of international law. 95
The Supreme Court has recognized its power and the appropriateness
of applying international law to these disputes when the occasion de-
mands. 96 But the appropriate adjustment of rights among the states
proves to be the'truly difficult task for the Supreme Court.
In its first authoritative pronouncement on water allocation be-
tween states on an interstate river, the Supreme Court rejected the
rule of absolute rights to the water in either state, rejected the
right of either state to govern the controversy by the imposition of
its law upon the other state, and determined instead that the water
of an interstate stream is to be allocated upon the principle of equal-
fty,of right.97 The apportionment is made upon the basis of what
is fair and equitable under the circumstances of the time and place
and is somewhat analogous to the "reasonable use" doctrine of the
riparian system. The litigant states, Kansas and Colorado, oper-
ated under two different theories of water law; Colorado was an ap-
propriation state while Kansas had essentially a riparian system with
a combination of the prior appropriation doctrine as well. It was
pointed out by the court that the same rules of law that are applied
in each of these states for the solution of private rights are not gov-
erning in settling interstate disputes. In deciding litigation between

93. See Hinderlider v. La Plata Co., supra note 54; Dyer v. Sims, supra
note 58; Kansas v. Colorado, 206 U.S. 46, 27 S.Ct. 655 (1907);
Kentucky v. Indiana, supra note 49.
94. Kansas V. Colorado, supra'note 93; Wyoming v. Colorado, 259 U.S.
419,466, 42 S.Ct. 552 (1922); Bannister, "Interstate Rights In Inter-
state Streams in the Arid West," 36 Harv. L. Rev. 960 (1923).
95. Laylin, The Uses of the Waters of International Rivers, International
Law Association, Dubrovnik Conference, 1956 at 7-8.
96. Kansas v. Colorado, supra note 93 at 97: "Nor is our jurisdiction
ousted, even if, because Kansas and Colorado are States sovereign
and independent in local matters, the relations between them depend in
any respect upon principles of international law. International law is
no alien in this tribunal."
97. Kansas v. Colorado, 185 U.S. 125, 22 S.Ct. 552 (1902); Kansas v.
Colorado, supra note 93.








AND THE LAW


riparian and appropriation states the court refused to make an appor-
tionment of the water to each state based upon a definite quantum
basis. 98 The states are left to a reasonable use of the stream with
no fixed certainty of amount; the reasonableness of the use depends
upon the circumstances at any given time. The Supreme Court de-
cree remains open to modification, and a state may petition to have
the decree altered to conform to changed conditions. Under such an
adjudication, the litigation persisted between Colorado and Kansas
from 1902 through 1943. 99
Unlike litigation between private riparians on the question of un-
reasonable use, when one state complains that another state is mak-
ing an unreasonable use of interstate waters, there is a much great-
er burden of proof to be met by the complaining state before the
United States Supreme Court will grant relief. 1lU This judicial rule
on the burden of proof, taken in conjunction with the application of
the equality of right doctrine, would give an advantage to the state
with the first opportunity at the water-in this series of litigation,
the state of Colorado.
In 1922 Colorado was again a party to an interstate water con-
troversy coming before the Supreme Court. 101 But in this case the
other litigant state was Wyoming, an appropriation state, and this
factor was crucial in determining the outcome of the controversy.
The Supreme Court concluded "that Colorado's objections to the doc-
trine of appropriation as a basis of decision are not well taken, and
that it furnishes the only basis which is consonant with the princi-
ples of right and equity applicable to such a controversy as this
is. "102 In explaining the cases dealing with the previous litigation
between Colorado and Kansas, 103 the Court pointed out that "equali-
ty of right" refers "not to an equal division of the water, but to the
equal level or plane on which all the States stand, in point of power
and right, under our constitutional system. "104 The division of the
water in this controversy was based upon priority of time in appro-
priating the waters of the river by private individuals in the two

98. Where two prior appropriation states are litigants, however, then
such an apportionment of a quantum of water to each state may be
proper. Wyoming v. Colorado, supra note 94; the discussion of
that and similar cases is covered in a subsequent section.
99. Kansas v. Colorado, supra note 97; Kansas v. Colorado, supra note
93; Colorado v. Kansas, 320 U.S. 383, 64 S.Ct. 176 (1943).
100. Colorado v. Kansas, supra note 99.
101. Wyoming v. Colorado, supra note 94.
102. Id. at 470.
103. Kansas v. Colorado, supra note 97; Kansas v. Colorado, supra note
93.
104. Wyoming v. Colorado, supra note 94 at 465.








WATER RESOURCES


states under each state appropriation law, and upon the commercial-
ly dependable average flow of the river rather than the average an-
nual flow. This resulted in Wyoming obtaining about 85% of the
water of the river despite the fact that it was admitted by the Court
that the irrigable land in Colorado was richer, more productive, and
that its irrigation system was much more highly developed than was
Wyoming's.105 Where the litigant states adhere to the appropriation
doctrine, the Supreme Court will grant a sum certain of water to
each state, in this case the quantity being determined by reference
to priority in time of individual appropriators in the respective
states. Even though a quantum of water was awarded each state
this case did not terminate the Wyoming and Colorado controversy.
As with so many of these type cases there was an aftermath where
Wyoming contended that Colorado was violating the previous court de-
cree. 106 Colorado defended by claiming that the diversions from
the river were by private individuals who were not parties to the
prior litigation and so not bound by the decree. But the Court had
no difficulty with this argument and held that interstate litigation
over waters binds private users as well as the state even though the
private persons were not parties to the suit because the state repre-
sented all of its citizens' rights in the water in the Supreme Court
litigation. 107 This same principle holds true with respect to all
compacts.
But this did not end the Colorado-Wyoming controversy. Subse-
quently, Wyoming complained that in a certain diversion Colorado
was taking in excess of that allowed by the court decree and that
diversions were being made by appropriators not authorized to do so
under Colorado law. As to the latter point the court held that this
interstate dispute did not affect Colorado's internal water adminis-
tration, and that it was no concern of Wyoming who took the water
in Colorado as long as the quantity of water taken did not exceed
the amount allocated under the decree. With regard to the conten-
tion that Colorado was making an excess diversion, Colorado de-
fended by claiming that the use of the water in the watershed of the
river would return enough water to the stream so that the diversion
would not be in excess of the decree when considered with the re-
turn flow. However, the court found this was not a proper matter
for consideration and enjoined Colorado from the excess diversion.108
105. Id. at 469.
106. Wyoming v. Colorado, 286 U.S. 494, 506-507, 52 S.Ct. 621 (1932);
and see Wyoming v. Colorado, 260 U.S. 1, 43 S.Ct. 2 (1922), where
during the very same year of the initial decision there was appli-
cation for and a modification of the court decree.
107. Ibid.
108. Wyoming v. Colorado, 298 U.S. 573, 56 S.Ct. 912 (1936).








AND THE LAW


Within four years the same states were again before the Supreme
Court with the same controversy. Colorado had continued to make
the excess diversion under the theory of the return flow not making
it an excessive diversion; further Colorado contended that it had not
injured Wyoming and that the excess diversion had been done with
the acquiescence of Wyoming. The court reiterated that diversion
based upon the theory of return flow was improper and pointed out
that Colorado would be adjudged in contempt if it persisted in this
activity. 109 Once again the court felt constrained to point out that
Colorado was entitled to a sum certain of water under the decree
and that the court was not concerned with how or where the state
diverted the water since that was a matter of purely internal admin-
istration.
In Nebraska v. Wyoming10 the Supreme Court attempted to
elaborate and articulate more clearly the rule applicable to inter-
state water disputes between appropriation states. 111 Even as be-
tween appropriation states the basic rule dispositive of the problem
is that of "equitable apportionment."112 However, when the litigant
states all adhere to the appropriation doctrine, then the Court in ap-
plying the "equitable apportionment" rule looks to the appropriation
doctrine as the fundamental guiding principle upon which to settle the
dispute. 113 The Supreme Court made that point clear:
That does not mean that there must be a literal application
of the priority rule.... fI]f an allocation between appropri-
ation States is to be just and equitable, strict adherence to
the priority rule may not be possible.... Apportionment calls
for the exercise of an informed judgment on a consideration
of many factors. Priority of appropriation is the guiding
principle. But physical and climatic conditions, the consump-
tive use of water in the several sections of the river, the
character and rate of return flows, the extent of established
uses, the availability of storage water, the practical effect
of wasteful uses on downstream areas, the damage to upstream
areas as compared to the benefits to downstream areas if a
limitation is imposed on the former-these are all relevant
factors. They are merely an illustrative, not an exhaustive
catalogue. They indicate the nature of the problem of apportion-
ment and the delicate adjustment of interests which must be
made.114

109. Wyoming v. Colorado, 309 U.S. 572, 60 S.Ct. 765 (1940).
110. 325 U.S. 589, 65 S.Ct. 1332 (1945).
111. In this case the litigants were Wyoming, Colorado, and Nebraska-
all were treated by the court as essentially prior appropriation
states although Nebraska had recognized the riparian right as well.
112. Nebraska v. Wyoming, supra note 110 at 617.
113. See Wyoming v. Colorado, supra note 94 at 470.
114. Nebraska v. Wyoming, supra note 110 at 618.








WATER RESOURCES


The court was cognizant of its frequent admonition to the state to
settle these controversies by interstate compact, but the majority
felt that since such an agreement between the states had not been
able to be concluded in this case, that the court must properly de-
cide the controversy. 115 However, the dissenting justices felt that.
this entire controversy should be left to settlement by compact and
not by court adjudication with the continuing supervision of the court
required to effectuate its decree. 116
In a controversy between Connecticut and Massachusetts, both
states having the riparian system of water law, the Supreme Court
concluded that the law of riparian rights does not "necessarily con-
stitute a dependable guide or just basis for the decision of contro-
versies such as that here presented. "117 The court reaffirmed the
principle of "equality of right," based upon principles of equity; yet
the court refused to interfere with the controversy because the facts
showed no real or substantial injury presently resulting to Connecti-
cut from proposed diversions by Massachusetts, and the "Court will
not exert its extraordinary power to control the conduct of one State
at the suit of another, unless the threatened invasion of rights is of
serious magnitude and established by clear and convincing evi-
dence. "118 Mr. Justice Holmes in his inimitable manner cut
through to the heart of the matter in New Jersey v. New York, 119
when he wrote for the court:
A river is more than an amenity, it is a treasure. It offers
a necessity of life that must be rationed among those who have
power over it. New York has the physical power to cut off
all the water within its jurisdiction. But clearly the exercise
of such a power to the destruction of the interest of lower
States could not be tolerated. And on the other hand equally
little could New Jersey be permitted to require New York to
give up its power altogether in order that the River might
come down to it undiminished. Both States have real and sub-
stantial interests in the River that must be reconciled as best
they may be. The different traditions and practices in differ-
ent parts of the country may lead to varying results, but the
effort always is to secure an equitable apportionment without
quibbling over formulas.120

When making an apportionment as between two states having the
prior appropriation system the Supreme Court has held that it will
115. Id. at 616.
116. Id. at 658.
117. Connecticut v. Massachusetts, 282 U.S. 660, 670, 51 S.Ct. 286 (1931).
118. Id. at 669.
119. 83 U.S. 336, 51 S.Ct. 478 (1931).
120. Id. at 342-343.








AND THE LAW 383

still be governed by equitable principles which may override the nor-
mal priority in time concept when equity and priority may conflict.121
If the prior appropriation right is not diligently pursued, put to a
beneficial use without waste, and the beneficial use continued in good
faith, then the appropriation right will be ignored entirely or to the
extent that equity requires. 122 This claim of priority in time must
especially meet these criteria when confronting the restrictive rule
of the Supreme Court that it will not enjoin water use by one state
unless the complaining state demonstrates that the use is clearly im-
proper and is of serious magnitude. Although these decisions have
worked a considerable modification upon the old cases between Wy-
oming and Colorado where the prior appropriation doctrine was ap-
plied mechanically and uncritically, still the Supreme Court appears
to give too much deference to this appropriation principle in settling
disputes between states where both have the prior appropriation sys-
tem. In resolving inter state disputes, standards that are broader
in scope than those afforded by a mechanical application of the prior
appropriation doctrine are necessary to assure that the best inter-
ests of the states and nation will be served.
The interminable series of Chicago water diversion controver-
sies demonstrate the fact that interstate water litigation is neither
final nor satisfactory. 123 The Supreme Court of the United States
has recognized its inherent limitations in these matters and has on
several occasions counseled the states to use the compact device as
a means of settling the dispute rather than resorting to litigation.
"We say of this case, as the court has said of interstate differences
of like nature, that' such mutual accommodation and agreement
should, if possible, be the medium of settlement, instead of invoca-
Stion of our adjudicatory power. "124 These disputes are incapable
121. Washington v. Oregon, 297 U.S. 517, 527, 56 S.Ct. 540 (1936);
Nebraska v. Wyoming, supra note 110.
122. Supra note 121.
123. See Missouri v. Illinois, 180 U.S. 208, 21 S.Ct. 331 (1901), 200
U.S. 496, 26 S.Ct. 268, 202 U.S. 598, 26 S.Ct. 713 (1906); Sani-
tary District of Chicago v. United States, 266 U.S. 405, 45 S.Ct.
176 (1925); Wisconsin v. Illinois, 278 U.S. 367, 49 S.Ct. 163 (1929),
281 U.S. 179, 696, 50 S.Ct. 266 (1930), 287 U.S. 578, 53 S.Ct.
210 (1932), 289 U.S. 395, 710, 53 S.Ct. 671 (1933), 309 U.S. 569,
60 S.Ct. 789, and 309 U.S. 636, 60 S.Ct. 791 (1940), 313 U.S. 547,
61 S.Ct. 1090 (1941), 340 U.S. 858, 71 S.Ct. 85 (1950).
124. Colorado v. Kansas, supra note 99 at 392. See also Washington v.
Oregon, 214 U.S. 205, 218, 29 S.Ct. 631 (1909); Minnesota v. Wis-
consin, 252 U.S. 273, 283, 40 S.Ct. 313 (1920); New York v. New
Jersey, 256 U.S. 296, 313, 41 S.Ct. 492 (1921): "We cannot with-
hold the suggestion, inspired by the consideration of this case, that
the grave problem of sewage disposal presented by the large and
growing populations living on the shores of New York Bay is one


i i i








WATER RESOURCES


of satisfactory adjustment by one final decree but require supervi-
sion, regulation, and adjustment to meet changing circumstances. No
court is equipped to provide the expert and continuing administration
required in these types of difficult controversies.
Mere recitation of this select group of cases provides powerful
argument against interstate litigation before the Supreme Court to
settle water disputes. The cases demonstrate the uncertainty of re-
sult, the lack of finality to the dispute, the time-consuming and in-
terminable litigation and re-litigation, the evident dissatisfaction of
the parties with the adjudicated results as evidenced by the constant
resort to the court subsequent to the initial decision, and the lack
of continuing administrative supervision under the court decrees.
The money and time expended are very substantial, and the issues
are so intricate-the adjustment of sovereign rights so delicate-that
the court is ill-equipped to deal adequately with these disputes. Much
to the credit of the court it has time and again recognized the in-
herent inability of a court to cope with these matters and has coun-
seled the states to resort to interstate compacts as a more adequate
means. 125 Most of the authorities in the field agree that adjudi ca-
tion in the Supreme Court does not provide the answer to the adjust-
ment of controversies involving interstate streams. 126 Messrs.
Frankfurter and Landis have eloquently summed up the problem:
... [T]he instrument of state-craft in this field is not court
but compact.... Continuous and creative administration is
needed; not litigation, necessarily a sporadic process, secur-
ing at best merely episodic and mutilated settlements, which
leave the central problems for adjustment unsolved.127

Footnote continued
more likely to be wisely solved by cooperative study and by confer-
ence and mutual concession on the part of representatives of the
States so vitally interested in it than by proceedings in any court
however constituted."
125. Ibid.
126. See Bannister, supra note 94; Donovan, "State Compacts as a Method
of Settling Problems Common to Several States," 80 U. Pa. L. Rev.
5 (1931); Friedrich, supra note 7; Friedrich provides examples of
the expense and time involved by citing the cases where vast numbers
of witnesses were required, thousand of pages of testimony taken,
numerous exhibits, etc. with the position of the states still uncertain
because no case has ever granted final apportionment of the waters
involved but left it free for future adjustments, which the states
have almost invariably sought time and again. See Comment,
"Governmental Techniques for the Conservation and Utilization of
Water Resources: An Analysis and Proposal," 56 Yale L.J. 276
(1947).
127. Frankfurter and Landis, supra note 7. The authors go on to observe
(pp. 707-708):








AND TH] LAW 385

Interestingly enough, however, one author over thirty years ago
made a very acute observation tending to favor court adjudication
over the compact device. He stated: "In spite of the prayers of
the Supreme Court to the contrary, one wonders whether the public
welfare is not better entrusted to the slow deliberations of that
court than to the operations of such diplomatic corps as most of the
states can support. The tendency of international law is away from
diplomacy towards judicial arbitrament. Are we turning backwards
as between states?"128 There is certainly some merit to the point
made. Supreme Court litigation is an essential complement to the
compact device, but the evidence still supports the conclusion that
it ordinarily behooves the states to compromise their differences
through compact-not through inordinate, inconclusive, interminable
litigation in the Supreme Court 129 In making a proper evaluation
Sof Supreme Court litigation in these matters one may conclude that
it is an essential adjunct to and supplement of interstate compacts.
SNeither can provide an exclusive remedy, but litigation should be the
'exception, the compact the rule.
3. Congressional Legislation. National legislation may resolve
multi-state disputes by pre-empting the field of activity or by im-
plementing the local operation to such an extent and in such a man-
ner that it effectively coerces interstate cooperation. In varying
degrees the Congress has taken both these actions in the area of
water resources. The role of the federal legislative program is
Footnote continued
But most questions of interstate concern are beyond
the jurisdiction of the Supreme Court; they are beyond
all court relief. Legislation is the answer, and legis-
lation must be coterminous with the region requiring
control. ...The regions are less than the nation and
are greater than any one State. The mechanism of
legislation must therefore be greater than that at the
disposal of a single State. ...Control by the nation would
be ill-conceived and intrusive. A gratuitous burden would
thereby be cast upon Congress and the national adminis-
tration, both of which need to husband their energies for
the discharge of unequivocally national responsibilities.
As to these regional problems Congress could not legis-
late effectively.... Collective legislative action through
the instrumentality of compact by States constituting a
region furnishes the answer."
128. Rogers, "Some Problems of the Interstate Water War," 26 Colo. Bar
Ass'n Rep. 107, 123-124 (1923).
129. This is not to say that the compact device does not suffer from many
of these same infirmities; rather it is to say that as between two
methods with maladies, the compact device has the fewer defects
and the greater potential to accomplish the desired end.







WATER RESOURCES


eminently important; it will remain and will undoubtedly play an even
more important part in the future. It would be utmost folly to argue
for a dichotomy of either federal action or state action. So long as
we remain a federal system politically there will necessarily be an
interaction of the state and federal governments in the conservation
and development of our water resources. The crucial issue in this
regard is the relative role of each government in the administration
of water resources. Admittedly state action alone is not adequate;
conversely federal action may be legally, politically, and organiza-
tionally inadequate for the job. Interstate compacts may bridge the
gap of individual state ineffectiveness and yet obtain the necessary
support and cooperation of the national government through congres-
sional consent and federal participation in the compacts. To evalu-
ate properly the effectiveness of interstate compacts a fair inquiry
is whether federal legislation alone is the better means of accom-
plishing proper regulation of the nation's water resources.
Some thirty years ago competent legal scholars thought that the
enumerated powers of Congress were inadequate to meet the com-
prehensive water regulation required. 130 The ever-expanding con-
cept of the powers of Congress under the Constitution presently in-
dicate that the federal government has the potential power to regu-
late comprehensively most interstate waters. 131 Increasing work in
flood control, extensive navigational improvements, large land re-
clamation projects through irrigation, vast power developments, and
the establishment and operation of TVA demonstrate the vitally im-
portant and tremendous national participation in water planning, con-
servation, and regulation. To argue against federal action in regu-
lating interstate waters on the ground that Congress lacks the con-
stitutional authority to act seems a tenuous legal base, tantamount
to folly, in view of the undisputable facts of ever-expanding federal
action in this area which has consistently met with the approval of
the Supreme Court of the United States. 132 Although present
130. See Frankfurter and Landis, supra note 7; Donovan, supra note 126.
131. See Caldwell, "Interstate Cooperation in River Basin Development,"
32 Iowa L. Rev. 232 (1947).
132. See for example Arizona v. California, 283 U.S. 423, 51 S.Ct. 522
(1931); United States v. Appalachian Electric Power Co., 311 U.S.
377, 61 S.Ct. 291 (1940); Oklahoma v. Guy Atkinson Co., 313 U.S.
508, 61 S.Ct. 1050 (1941); United States v. Willow River Power Co.,
324 U.S. 499, 65 S.Ct. 761 (1945); Federal Power Commission v.
Oregon, 349 U.S. 435,. 75 S.Ct. 832 (1956); United States v. Twin
City Power Co., 350 U.S. 222, 76 S.Ct. 259 (1956); compare the
controversy involving Friant Dam and the Central Valley Project of
California, United States v. United States District Court, 206 F. 2d
303 (C.A. 9, 1953); Rank v. Krug, 142 F. Supp. 1 (S.D. Cal. 1956);








AND THE LAW


constitutional concepts would probably support federal intervention on
an even broader scale in the regulation and control of the country's
water resources, it is believed unwise from a policy standpoint to
foster paramount control of the nation's waters in the national gov-
ernment, irrespective of any constitutional objections. Federal ac-
tivity and federal control there will be, and must be, but the more
prudent course of action is to permit the primary and paramount ac-
tion and control to remain with the states. There are several rea-
sons which lead to this conclusion.
First, historically the primary responsibility for control of
water resources rested with the states, subject of course to the
overriding federal navigational right, and even today this condition
still prevails. This is not a reason based alone upon idle sentimen-
tality for states' rights but a recognition that an established order
of things should not be altered without cogent reasons demonstrating
the inability of the states to cope with the situation or a showing
that the federal government can perform the task in a much superi-
or manner. The states do have the potential to be the primary mo-
tive force in water regulation, and it is questionable that the feder-
al government can do a better job or even perhaps as good a one as
can the states. 133
Second, the present federal organization for water development
Slacks unification and coordination. "There is no such thing as a
single-minded Federal organization to handle Federal water activi-
ties, in the sense of a tightly ordered, efficiently running adminis-
trative machine. Procedures are complex, not simple; chains of
command are confused; purposes of the separate agencies, like their
jurisdictions, are overlapping, instead of clear-cut. The whole pat-
tern is wrapped about by traditions and prerogatives evolved through
the decades and jealously guarded."134 This chaotic lack of central
control makes for agency red-tape and bureaucratic programming
rather thn or a sound national planning concept and efficient admin-
istration.
Footnote continued
see 3 Task Force Report on Water Resources, pp. 1729-1772 (1955),
where 33 printed pages are taken to merely summarize federal water
legislation from June 1, 1950 to August 20, 1954-a period less than
5 years.
133. The states' potential is discussed in Part VI, infra the discussion
immediately following is directed to the serious impediments in the
way of an adequate of effective federal regulation.
134. 1 Task Force Report on Water Resources, p. 59 (1955).
135. See Martz, supra note 2; Trelease, "A Federal-State Compact for
Missouri Basin Development," 7 Wyo. L.J. 161 ('953); Caldwell,
supra note 131.


j








WATER RESOURCES


Third, commensurate with the lack of coordination is the inor-
dinate number of federal agencies, departments, and offices involved
in the administration of water planning. "Twenty-five separate agen-
cies scattered among six departments and five independent organiza-
tions are charged with accomplishing the various Federal water pur-
poses."136 In addition 18 offices and bureaus have some concern
with water resources. 137 Twelve agencies are concerned with flood
control; nine with irrigation; eight with drainage; seven with naviga-
tion; nine with pollution; ten with watershed treatment; ten with rec-
reation, fish, and wildlife; nine with power transmission and distri-
bution; fifteen with power generation; and thirteen with water sup-
ply. 18 Excessive duplication, extravagance, and waste have been
the inevitable consequences of such a complex of disorganization.
Agency competition, jealousy, and the striving for aggrandizement
have confounded the already imponderable situation. The result has
been an intricate labyrinth of agency action, interaction, inaction,
and penumbra of uncertainty of action. 139
Fourth, in recognition of this morass of federal agencies, the
Commission on Organization of the Executive Branch of the Govern-
ment has recommended a vast reorganization to remedy this diffi-
cult situation. 140 But it is a recognized fact that such a reorgani-
zation presents serious difficulties, some perhaps impervious to so-
lution, which have resisted all previous attempts at betterment. 1

With 25 Federal agencies employing more than 70,000
persons concerned with water resource and power programs,
...with 18 other agencies of lesser interests in the same
fields, it is inevitable that aims, activities, and ambitions
should clash. Add that the separate policies and the statutes

136. 1 Task Force Report on Water Resources, p. 59 (1955).
137. Ibid.
138. 1 Commission Report on Water Resources, pp. 13-15 (1955); the
principal agencies, with their organization, functions, and jurisdiction
are briefly outlined in 3 Task Force Report on Water Resources, pp.
1017-1049 (1955).
139. This problem is sketched out in Trelease, supra note 135; Martz,
supra note 2.
140. 1 Commission Report on Water Resources, pp. 36-39 (1955); 1 Task
Force Report on Water Resources, pp. 24-28, 83-110 (1955).
141. "There is a long history of attempts to secure better organization
both at the top levels of the Government and out in the field....
1 Commission Report on Water Resources, pp. 37-38 (1955); "When
a strong-handed coordination has been attempted it has not met with
sustained support either from the agencies concerned or from the
Congress-at least not enough support to keep the coordinating in-
strument alive and functioning." 1 Task Force Report on Water Re-
sources, p. 59 (1955).








AND THE LAW 389

governing them have little or no consistency, and the difficulty
becomes compounded....
A number of administrative devices have been tried
over the decades in an effort to tighten the reins on agency
operations.
Coordination cannot be easily achieved. The ambitions
and the strength of the separate agencies, equated to the volume
of tax funds they expend, is too great.... The rivalry of the
construction agencies, the horse trading with each other and
with beneficiaries, and the spending, begin at the planning
stage.... Consistency of policy would do something to reduce
rivalry, since it would place all agencies on an equal footing
in dealing with beneficiaries. But even these steps will not
be enough.142

If past experience may be a guide, the federal government is not
equipped to undertake the additional task of primary responsibility
for control and development of interstate waters utilized by the
States and private individuals. The role of the federal government
is important, but it should serve in the capacity of assisting and
cooperating with the states rather than as the primary motivating
force.
Fifth, water control and planning is basically a local and re-
gional problem to be handled locally at the state level, and through
interstate cooperation regionally. 143 Other commentators in the
field argue, quite persuasively, that the federal government must be
primarily responsible for water resources planning and regulation.144
142. 1 Task Force Report on Water Resources, pp. 24-25 (1955); see the
discussion by Martz, supra note 2 at 629; also the article by Trelease,
supra note 135, where the respective authors take a very dim view of
the ability of the national government to control, regulate, and ad-
minister the water resources of the country.
143. "The very nature of most water problems makes them, basically,
local and regional. The paramount importance of local requirements,
and the wide divergence in this country among local water supplies and
needs, makes this inevitable." 1 Task Force Report on Water Resources,
p. 29 (1955); see Donovan, supra note 126; however, compare the Com-
ment, "Governmental Techniques for the Conservation and Utilization
of Water Resources: An Analysis and Proposal," supra note 126,
where the author concludes that primary responsibility for major re-
sources development rests with the federal government so that inter-
state commissions and compacts must necessarily be quite limited in
scope. The National Resources Committee also essentially concludes this
same fact as to the dominant role which the national government must
play in administering water resources; see National Resources Commit-
tee, Regional Factors in National Planning and Development (1935).
,144. The critics point out the defects of the compact device: inflexibility,
difficulty of enforcement, problems of negotiation, and lack of powers








390 WATER RESOURCES

It is submitted that their arguments indicate the essential role which
the federal government must play in the control and development of
the nation's water resources, but misconceive this role as the domi
nant one. The dominant and primary role should rest with the
states if they engage in cooperative efforts among themselves and
with the federal government through the medium of interstate com-
pacts. The most recent Task Force Report also concludes that the
basic responsibility for water planning and regulation rests with the
states, not with the national government. 145 However, it seems
that the Task Force Report tends to minimize unduly the function
which the federal government should perform in this area. 146 Al-
though its conclusion that basically the responsibility for water con-
trol and development lies at the state level seems compelling, as
does its conclusion on the need for wholesale reorganization of fed-
eral agencies, still the relatively minor position to which the Repor
tends to relegate the federal government in the area seems unreal-
istic and misplaced. In respect to the reasons for the strategic im
portance which the national government must perform in relation to
our water resources development, the National Resources Commit-
tee Report is more compelling and persuasive. 147 Synthesis of the
two somewhat divergent ideas results in concluding that primary re-
sponsibility vests with the states, but with ample and adequate fed-
eral action, assistance, and cooperation. Either acting alone is in-
adequate. Essentially the issue is not which of the organs of
Footnote continued
given to the compact commission; it is then urged that the effective
planning of water use is really a national problem requiring extensive
financing which the national government is better able to handle
through the simple process of majority vote by legislation rather than
the interminable problems associated with the compact device and its
requirement of unanimous approval by sovereign states. See National
Resources Committee, supra note 143; National Resources Planning
Board, Interstate Water Compacts 1785-1941 (1942); Comment, "Gov-
ernmental Techniques for the Conservation and Utilization of Water
Resources: An Analysis and Proposal," supra note 126. Thursby,
Interstate Cooperation, cc. IV, V (1953). The criticisms of the
compact device are justified; the essential role of the federal govern-
ment is admitted. But the only difference of opinion is on the fact
that it is here believed that the compact device provides the poten-
tial for better water regulation and development primarily at the
state level than could be accomplished at the national level.
145. 1 Task Force Report on Water Resources, p. 29 (1955).
146. See Stone, "The Hoover Reports on Water Resources and Power-
A Commentary," 43 Cal. L.Rev. 747 (1955), where the author points
out the shortcomings of the Task Force Report especially with re-
spect to national policy in the field.
147. National Resources Committee, Regional Factors in National Plan-
ning and Development (1935).








AND THE LAW 391

government will perform the task but rather which must be the pri-
mary motive force.
Sixth, the very bigness of the federal government argues against
adding such additional tasks of basic responsibility for regulating,
developing, and conserving the nation's water resources. All of the
previous points against primary national action culminate and find
fruition in this sixth argument. Decentralization through state ini-
tiative readily commends itself in view of the rather chaotic disor-
ganization of the federal agencies dealing with water problems. How-
ever, it is recognized that all of these arguments must rest or fall
upon the premise that the states themselves are equipped with the
potential to handle adequately the huge task. 148
Seventh, political pundits advocating the maintenance of a proper
federal system of government may reason that national encroachment
in the field of such a basic commodity as water would be another
step toward the demolishment of our federal structure, resulting in
further strengthening of the national power at the great expense of
the states. 149 This seventh reason, although enumerated here, is
not quite persuasive. In dealing with a precious natural resource
such as water, any argument for primary state control must rest
upon the foundation that the states can handle the problem as effec-
tively as the federal government. If the states are incapable of per-
forming this task, then surely the national government must do it.
It is only because of the conclusion that the states are equipped with
the better potential for assuming primary responsibility in regulat-
ing water resources (with, of course, the cooperation of the federal
government) that this seventh point has any validity. Since it is
concluded that the states can perform the task, it is good to main-
tain a proper balance between the nAtional and state governments and
avoid the friction created by any real or fancied encroachment by
the federal government.

VI. CRITICAL EVALUATION OF THE INTERSTATE COMPACT DE-
VICE
The previous section demonstrated the many defects which in-
here in water resources regulation by the federal government and
S148. It is believed that the states do possess this potential and the sub-
sequent section will treat of why the conclusion is made that the
compact device provides the means for effective regional water regu-
lation.
149. For some discussion of the interrelation of federal-state activity in
water planning and control see Zimmermann and Wendell, Interstate
Compacts Since 1925, c. VII (1951); Martz, supra note 2; Trelease,
supra note 135. The compact device seems a most effective tool
for obtaining amicable interaction of the federal and state governments.








WATER RESOURCES


which present serious impediments to Congress' exercising the basic
responsibility for regulating the nation's water resources. An ex-
amination of the interstate compact as the method by which states
may exercise primary responsibility for water resources regulation
demonstrates that the compact device is far from a perfect means
as well.
There are four major criticisms of interstate compacts which
become significant in judging the feasibility or desirability of utiliz-
ing the compact method to settle interstate water problems. First,
there is the problem of negotiating the compact; second, there is
the difficulty of adequate enforcement powers; third, there is the
matter of compact inflexibility; and fourth, there is the lack of ade-
quate regulatory and administrative powers.
To evaluate the compact device the following chart of existing
interstate water compacts is included. The chart is made possible
only through the excellent collection of interstate water compacts
(and related data) under one cover made available by the Department
of the Interior. 150
A. Negotiating the Compact
Each state tends rigidly to maintain its sovereign independence
when entering, into compacts, and each sovereignty jealously tends to
protect and promote its own local interests. 151 The formulation of
compacts, with the strongly asserted state sovereign equality being
felt at all stages of the negotiation, results in political bargaining
and compromise rather than any really efficient regional water plan-
ning. 152 It has been asserted that each state zealously guards and
protects its own selfish interests under the guise of sovereignty, en-
ters into an agreement only when it feels it advantageous or neces-
sary to protect itself, and rarely enters into a compact out of a de-
sire for the better development of a region involving the interests of

150. United States Department of the Interior, Documents on the Use and
Control of the Waters of Interstate and International Streams-Compacts,
Treaties and Adjudications (1956); this book brings together the inter-
state water compacts, pertinent statutes and litigation, international
water treaties, and unperfected interstate water compacts. It is a
remarkably thorough compilation.
151. Niles, "Arizona v. California, "10 N.Y.U. Law Q. Rev. 188 (1932);
Thursby, Interstate Cooperation, 138-139 (1953); Friedrich, supra
note 30.
152. Ibid. Comment, "Governmental Tachniques for the Conservation and
Utilization of Water Resources; An Analysis and Proposal," supra
note 126.










AND THE LAW


CHART I: EXISTING INTERSTATE WATER COMPACTS

1 2 3 4
Interstate States to Compact and Earliest State or Date Compact Time Lapse from Ear-
Compact Year of Ratification Federal Compact Concluded and liest Ratification to
Ratificationa Became Legally Compact Becoming
Effective Legally Effective (Ap-
proximate Years)c

La Plata Colorado, 1923; New New Mexico, Jan. 29, 1925 2 years
River Mexico, 1923; (Con- Feb. 7, 1923
Compact gressional consent,
1925)
South Platte Colorado, 1925; Ne- Nebraska, May 3, March 8, 1926 3 years
River Com- braska, 1923; (Con- 1923
pact gressional consent,
1926)
Colorado Arizona, 1944 (cur- Wyoming, Feb. March 6, 1929 4 years
River Com- rently contested); 25, 1925
pact California, 1929; Col-
orado, 1925; Nevada,
1925; New Mexico,
1925; Utah, 1929;
Wyoming, 1925; (Con-
gressional consent,
1928)
New York Connecticut, 1941; New New Jersey, Jan. 17, 1936 1/2 year
Harbor (Tri- Jersey, 1935; New July 1, 1935 (For New York
State) Inter- York, 1936; (Congres- and New Jersey)
state Sanita- sional consent, 1935) June 24, 1941 6 years
tion Compact (All 3 states)
Red River Minnesota, 1937; North South Dakota, April 2, 1938 1 year
of the North Dakota, 1937; South March 5, 1937
Compact Dakota, 1937; (Con-
gressional consent,
1938)
Rio Grande Colorado, 1939; New Colorado, Feb. May 31, 1939 1/4 year
Compact Mexico, 1939; Texas, 21, 1939
1939; (Congressional
consent, 1939)

aThis is the date of the earliest formal state or congressional ratification of the agreement and is not
to be confused with the earlier date when the state commissioners gave assent to the formulated
agreement.
This is the date that the compact became legally operative through the requisite state and congres-
sional ratification.
This period reflects the approximate time differential between columns 2 and 3.

other states and the nation. 153 The Colorado River Compactl54
with its resultant and still continuing litigation tends to support this
conclusion. 155 Sectionalism was a disrupting influence in the

153. Ibid. National Resources Committee, Regional Factors in Planning
and Development 35-70 (1935). The National Resources Commission
gave a highly critical report on the compact device as a means of
of solving problems requiring continuing administration such as regu-
lation of interstate waters. They offer national legislation as the
only effective means of control.
154. 45 Stat. 1057 (1928).
155. See Arizona v. California, supra note 132; the dispute over the
compact is presently pending before the United States Supreme
Court involving these same states; see Corker, "The Colorado
River Controversy: Arizona v. California, "30 Los Angeles Bar
Bul. 195 (1955).










WATER RESOURCES


5 6 7 8
Interstate Time Required to Con- General Purpose Compact Cor- Federal Participation
Compact clude Compact from of Compact mission Organi- Commission
First Formal Negotia- zation
tion Stimulus to Final
Approval (Approximate
Years)_
La Plata 3 years Equitable appor- None. (State None
River Com- tionment of La engineers of
pact Plata River wa- each state to
ters among administer com-
states pact
South Platte Unknown Equitable appor- None. (State None
River Com- tionment of wa- water officials to
pact ters of South carry out provi-
Platte River sys- sions of com-
tem with some pact)
flexibility in ap-
portionment to
obtain beneficial
use of water
Colorado 7-1/2 years Equitable appor- None. (Ex officio Yes, Directors of
River Com- tionment of wa- organization of Reclamation Service &
pact ters of Colorado chief state water Geological Survey
River system; es- administrators & members of ex officio
tablish priorities U.S. officials to organizations
of beneficial use; perform limited
to store waters & functions)
prevent floods
New York Unknown Control & abate- Interstate Sani- None
Harbor (Tri- ment of pollution station Commis-
State) Inter- in tidal and coast- slon with 15
state Sanita- al waters members, 5 from
tion Compact each state
Red River 20 years. (At least Flood control, Tri-State Waters None
of the North Congress gave ap- pollution abate- Commission with
Compact proval to negotiation ment and better 9 members, 3
of such a compact in use of waters from each state
1917)
Rio Grande 4 years.g (Congres- Equitable appor- Rio Grande Com- Yes, one representa-
Compact sional consent to the tionment of Rio pact Commission tive without vote who
negotiating of a com- Grande River with 4 members, acts as chairman
pact given in 1929 but system and as- 1 from each
predecessor compact surance of quality state and 1 from
made in 1935) of water so ap- United States
portioned

dThis period reflects the approximate time differential between the earliest ascertainable formal nego-
tiation stimulus (congressional consent to negotiate a compact or recorded formal state negotiations-
whichever is earlier) and the date of the compact becoming legally effective (column 3). With some
of the compacts there was not evidence of the earliest formal negotiation stimulus and so no time
period could be computed for those compacts.
gThis figure represents a compromise. A previous compact had been concluded in 1955 but later
abrogated and the present Rio Grande Compact was concluded in 1939, so that the time lag is taken
from the first compact to the date of the present compact rather than using the time Congress first
consented to the negotiation of such a compact (1929), as the starting date. But even the four year
figure used in the chart is unsatisfactory; yet it is felt that it more clearly represents the true pic-
ture of the time lapse rather than computing the differential from 1929 (congressional consent to ne-
gotiate a compact) to 1939 (date present compact concluded).


negotiation of the Colorado River Compact manifesting itself between
the upper and lower basin, between each state, between groups of
the states, and even within regional areas of individual states. 156

156. Olson, The Colorado River Compact (1926).










AND THE LAW


9 10 11 12 13
Interstate Administrative or Voting Adequate Adequate Related Legislation
Compact Regulatory Powers Procedure Enforce- Adjudicatory
ment Pow- Powersf
erse
La Plata State engineers have Apparently None None None. (Congressional
River discretionary super- unanimous consent, 43 Stat. 796)
Compact vision to rotate wa- vote of
ters when low water both state
to obtain greatest engineers
beneficial use
South Platte Very limited; al- Apparently, None None None. (Congressional
River Com- though no compact unanimous consent, 44 Stat. 195)
pact commission, state vote of
officials provide state offi-
some continuing cials
regulatory force
Colorado None. Ex officio None None None. (But a 42 Stat. 171; 45 Stat.
River Com- organization mainly dispute as to 1057; 49 Stat. 1028,
pact fact finding, infor- waters or the 1039; 61 Stat. 628; 65
national and me- compact any Stat. 404; 66 Stat. 325;
chanical operation state affected 68 Stat. 1045; 70 Stat.
may obtain 105; (Congressional
arbitration consent, 45 Stat. 1057)
which in turn
subject to rat-
ification by
legislature of
affected states)
New York Extensive and con- 3 of 5 Yes, has Yes, hearing 70 Stat. 966; (Congres-
Harbor (Tri- tniing regulatory members broad pow- procedure tsonal consent, 49Stat.
State) Inter- administration with from each ers, issues prescribed 932)
state Sanita- broad discretionary state and necessary
tion Compact powers all states orders and
can bring
court ac-
tion to en-
force com-
mission ac-
tion


iRed River of
the North
Compact


Fairly limited regu-
latory and discre-
tionary power


2 of 3
members
from each
state and
all states


Not clear
but appar-
ently so on
limited as-
pect of pas-
passing on
plans for
works on
boundary
waters


Not clear but
may have very
limited powers
to adjudicate
whether plans
for works on
boundary wa-
ters are ade-
quate


40 Stat. 250, 266;
(Congressional consent,
52 Stat. 150)


Rio Grande Very limited me- Unanimous None None 45 Stat. 1502; 46 Stat.
Compact chanical functions 767; 49 Stat. 325; 54
of gauging and dis- Stat. 406; 62 Stat. 1171,
tributing waters 1179; 70 Stat. 105;
and collection of (Congressional con-
factual data sent, 53 Stat. 785)

OThe criteria for the conclusion whether a compact commission possesses adequate enforcement powers
is enumerated in some detail in the following discussion of compact enforcement powers.
The criteria for the conclusion whether a compact commission possesses adequate adjudicatory powers
is enumaerated in some detail in the following discussion of compact enforcement powers.

As a consequence, no completely satisfactory agreement could be
reached and the result was a compact with fertile opportunities for
future disputes. 157 For example, Mr. G. E. Smith, Irrigation

l57. Ibid.










WATER RESOURCES


14 15 16 17
Interstate Litigation Involving Litigation Prior Pending or Con- Comments
Compact Compact to Compact clouded Related
Compacts
La Plata Hinderlider v. La Plata None Upper Colorado Extremely short com-
River Compact River & Cherry Creek River Compact pact with much unsaid;
Ditch Co., 304 U.S. 92 recognizes ap- lacks commission or-
(1938) rev. 101 Colo. portionment un- ganization, enforce-
73 (1937) der this cor- ment powers, adjudi-
pact catory powers and has
no federal participa-
tion
South Platte None None None No commission, en-
River Compact forcement and adjudi-
catory powers and no
continuing regulatory
body
Colorado River Ariz. v. Calif., 283 None Upper Colorado Lacks commission and
Compact U.S. 423 (1931); Ariz. River Compact; enforcement and adjudi-
v. Calif., 292 U.S. 341 pending Lower catory powers; the de-
(1934); Ariz. r. Calif., Colorado River fects are apparent in
298 U.S. 558 (1936); Compact, 45 the protracted litiga-
Ariz. v. Calif., now Stat. 1057 tion
pending before Su-
preme Court, see:
344 U. S. 806 (1952);
344 U. S. 919 (1953);
345 U.S. 914 (1953);
345 U. S. 968 (1953);
347 U.S. 985 (1954);
347 U. S. 986 (1954);
348 U. S. 907 (1955);
348 U. S. 947 (1955);
350 U. S. 114 (1955);
350 U. S. 812 (1955);
350 U. S. 880 (1955);
350 U.S. 955 (1956);
351 U. S. 977 (1956);
Cf. U.S. v. Ariz.,
295 U. S. 174 (1935)
New York Interstate Sanitation None None Simple majority vote,
Harbor (Tri- Com. v. Weehawkin federal participation
State) Inter- Township, 1 N.J. 330, and fewer commission
state Sanita- 63 A. 2d 528 (1949); members might have
tion Compact Interstate Sanitation been better but other
Com. v. West N.Y., provisions are good
15 N.J. Super. 263,
83 A. 2d 353 (1951)
Red River of None None None No adequately defined
the North enforcement and adju-
Compact dicatory duties; no
federal participation
Rio Grande Texas v. New Mexico, Tex. v. N.M., Costilla Creek Lack of adequate regu-
Compact pending before Supreme 296 U.S. 547 Compact, 60 latory powers; no en-
Court, see: 343 U.S. (1935); 297 U.S. Stat. 246; Pre- forcement or adjudica-
932 (1952); 344 U.S. 698 (1936); 298 viotis Rio tory powers andweak-
806 (1952); 344 U.S. U.S. 644 (1936); Grande Compact ness of the unanimous
906 (1952); 347 U. S. 300 U. S. 645 concluded in 1935 voting procedure im-
925 (1954); 348 U.S. 1937); 302 U.S. but later abro- pair compact
805 (1954); 348 U.S. 658 (1937); 308 gated
946 (1955); 349 U.S. U.S. 510 (1939).
942 (1955); 350 U.S. (Involved previ-
858 (1955); 350 U. S. ous compact but
984 (1956); 352 U.S. suit dismissed
991 (1957); El Paso upon the conclu-
County Water Imp. Dist. sion of present
v. El Paso, 133 F. compact)
Supp. 894 (D.C.W.D.
Tex., 1955)










AND THE LAW

CHART H: EXISTING INTERSTATE WATER COMPACTS


1 2 3 4
Interstate States to Compact and Earliest State or Date Compact Time Lapse from Ear-
Compact Year of Ratification Federal Compact Concluded and lest Ratification to
Ratificationa Became Legally Compact Becoming
Effective Legally Effective (Ap-
proximate Years)c
Potomac District of Columbia, Maryland, May 3, July 11, 1940 1 year
River Basin 1940; Maryland, 1939; 1939
Compact Pennsylvania, 1945;
Virginia, 1940; West
Virginia, 1941; (Con-
gressional consent,
1940)
Ohio River Illinois, 1939; Indiana, Indiana, March 4, July 11, 1940 1-1/3 years. (10
Valley Water 1939; Kentucky, 1940; 1939 (Date for the years from first to
Sanitation New York, 1939; Ohio, latest state, last included state)
Compact 1939; Pennsylvania, 1949)
1945; Tennessee, 1949;
Virginia, 1948; West
Virginia, 1939; (Con-
gressional consent,
1940)
Republican Colorado, 1943; Kansas, Kansas, Feb. 22, May 26, 1943 1/4 year
River Compact 1943; Nebraska, 1943; 1943
(Congressional consent,
1943)
Belle Fourche South Dakota, 1943; Wyoming, March Feb. 26, 1944 1 year
River Compact Wyoming, 1943; (Con- 3, 1943
gressional consent,
1944)
Costilla Creek Colorado, 1945; New Colorado, March June 11, 1946 1-1/4 years
Compact Mexico, 1945; (Con- 24, 1945
gressional consent,
1946)
New England Connecticut, 1947; Massachusetts, July 31, 1947 1/6 year. (But from
Interstate Water Massachusetts, 1947; May 19, 1947 (Effective when earliest to latest state
Pollution Con- New Hampshire, 1951; 2 contiguous the time is 4 years
trol Compact New York, 1949; states and Con- with Maine still out)
Rhode Island, 1947; gress ratify;
Vermont, 1949; (Con- Maine has not
gressional consent, yet ratified)
1947)

aThis is the date of the earliest formal state or congressional ratification of the agreement and is not
to be confused with the earlier date when the state commissioners gave assent to the formulated
agreement.
bThis is the date that the compact became legally operative through the requisite state and congres-
sional ratification.
This period reflects the approximate time differential between columns 2 and 3.

Engineer at the University, of Arizona, asserted that the Reclama-
tion Service survey indicated that it was feasible to irrigate only
1,500,000 acres in addition to the acres then under irrigation in the
upper basin states; notwithstanding this fact the states of the upper
basin demanded water rights for 5,000,000 acres of additional irri-
gable land. 158 Effective regional planning demands distribution
along lines of maximum utilization without regard to state bounda-
ries whereas the negotiation of compacts proceeds with the equal
sovereignty of the states ever asserting itself. "The formal equality

158. Id. at 188










WATER RESOURCES


5 6 7 8
Interstate Time Required to Con- General Purpose Compact Com- Federal Participation
Compacts chlude Compact from of Compact mission Organi- on Commission
First Formal Negotia- zation
tion Stimulus to Final
Approval (Approximate
Years)d
Potomac River 3 years. (Congression- Control and abate- Interstate Cor- Yes, 3 members of
River Basin al consent to negotiit- ment of pollution mission on the commission with votes
Compact ing a compact given in in river basin Potomac River
1937) Basin with 18
members, 3
from each state,
Dist. of Colum-
bia and the
United States
Ohio River 4 years. (Congression- Control and abate- Ohio River Val- Yes, 3 members of
Valley Water al consent to negotiat- ment of pollution ley Water Sani- commission with votes
Sanitation ing a compact given in in river basin station Commis-
Compact 1937; 12 years for last sion composed of
included state) 30 members, 3
from each state
and 3 from
United States
Republican 2 years Equitable appor- None. (State wa- No, (But provides Geo-
River Compact tionment of wa- ter officials to logical Survey will col-
ters of river sys- carry out the elaborate with state of-
tem provisions of the ficials)
compact)
Belie Fourche 17 years. (Congres- Equitable appor- None. (State wa- No, (But provides Geo-
River Compact siotal consent to nego- tionment of wa- ter officials to logical Survey will col-
tiating a compact given ters of river carry out the elaborate with state of-
in 1927) system provisions of the ficials)
compact)
Costilla Creek Unknown Equitable appor- Costilla Creek No, (But provides Geo-
Compact tionment of wa- Compact Cor- logical Survey will col-
ters of river sys- mission cor- elaborate with state of-
tem posed of the of- ficials)
ficials from each
state charged
with state water
administration
New England 11 years. (Congres- Control and abate- New England In- None
Interstate sional consent to nego- ment of pollution terstate Water
Water Pollu- tiating a compact given in interstate New Pollution Control
tion Control in 1936; time would be England waters Commission with
Compact longer if included the 30 members, 5
latest state ratification) from each state
(Will have 35
members when
and if Maine rat-
ifies compact)
dThis period reflects the approximate time differential between the earliest ascertainable formal nego-
tiation stimulus (congressional consent to negotiate a compact or recorded formal state negotiations-
whichever is earlier) and the date of the compact becoming legally effective (column 3). With some
of the compacts there was not evidence of the earliest formal negotiation stimulus and so no time
period could be computed for those compacts.

of the States complicates negotiation and renders it somewhat com-
parable to international negotiation. "159 International negotiation
requires highly skilled diplomacy and the far-sighted statesmanship
of a fine diplomatic corps which most of the states are ill-equipped
to provide. 160 Both the formulation and the amendment of compacts

159. Thursby, Interstate Cooperation, 138-139 (1953).
160. See Rogers, supra note 128.










AND THE LAW


9 10 11 12 13
interstate Administrative or Voting Adequate Adequate Related Legislation
compact Regulatory Powers Procedure Enforce- Adjudietory
ment Pow- Powers
erse
Potomac Very limited; duties 2 of 3 None None None. (Congressional
river Basin are fact-finding and members consent, 54 Stat. 748)
compact recommendatory from each
only affected
signatory
body
ho River Quite broad with 2 of 3 Yes, can Yes, hearing None. (Congressional
Valley Water adequate flexibility, members issue en- procedure consent, 54 Stat. 752)
Sanitation discretion and pow- from ma- forcement prescribed
jCompact ers jority of orders and
signatory can bring
states and enforce-
2 of 3 ment action
members in court
from any
affected
state be-
fore bind-
ing in such
state
Republican Very limited; me- None None None None. (Congressional
River Compact chanical functions consent, 57 Stat. 86.
of effecting distri- Previous compact con-
bution sent had been vetoed
by President)
Belle Fourche Very limited; me- None None None None. (Congressional
River Compact chanical functions consent, 58 Stat. 94)
of effecting distri-
bution
Costilla Creek Fairly adequate; to Unanimous, Not clear Not clear but None. (Congressional
Compact obtain beneficial for adopt- but appar- apparently very consent, 60 Stat. 246)
use of water the ing rules & ently some limited powers
commission has regulations very lim- implicit but not
rather broad pow- governing ited en- spelled out or
ers and flexibility the commis- forcemeht any procedures
in apportioning sion pro- powers established
S water ceedings; implicit
not clear but not ex-
on obliga- pressly
tory action provided


New England
Interstate
Water Pollu-
tion Control
Compact


Fairly adequate; has
flexibility and dis-
cretion but compact
not clear whether
active regulation
more by state agen-
cies than by com-
pact commission


3 of 5
members
from any
affected
signatory
state be-
fore bind-
ing on it


Unclear,
although
not ex-
pressly
stated the
compact
seems to
vest im-
plicit en-
forcement
powers in
the com-
mission


Unclear but
apparently in
a very limited
sense there are
adjudicatory
powers


None. (Congressional
Consent, 61 Stat. 682)


eThe criteria for the conclusion whether a compact commission possesses adequate enforcement pow-
ers is enumerated in some detail in the following discussion of compact enforcement powers.
f The criteria for the conclusion whether a compact commission possesses adequate adjudicatory pow-
ers is enumerated in some detail in the following discussion of compact enforcement powers.









WATER RESOURCES


14 15 16 17
Interstate Litigation Involving Litigation Prior Pending or Con- Comments
Compact Compact to Compact eluded Related
Compacts
Potomac None None None This is a weak organic
River Basin nation of fact-finding
Compact and recommendatory
powers only
Ohio River Dyer v. Sims, 341 None None A very good regula-
Valley Water U. S. 22 (1951) tory compact but de-
Sanitation fect in the voting pro-
Compact cedure of 2 of 3 from
any affected state
Republican None Weiland v. Pio- None Lacks commission,
River Compact neer Irrigation regulatory powers, en-
Co., 259 U.S. forcement and adjudi-
498 (1922) catory powers; has no
adequate federal par-
ticipation
Belle Fourche None None None Lacks commission,
River Compact regulatory powers, en-
forcement and adjudi-
catory powers; has no
adequate federal par-
ticipation
Costilla Creek None Lindsayv. Mc- None Although it has some
Compact Clure, 136 F. 2d flexibility of regula-
65 (C.C.A. 10, tion, lacks fully ade-
1943) quate enforcement and
adjudicatory powers.
Unanimous rule on in-
ternal administrator
and no adequate fed -
eral participation also
detract from compact
New England None None None Enforcement powers
Interstate not spelled out; lacks
Water Pollu- adjudicatory powers
tion Control spelled out and has no
Compact federal participation.
The voting of 3 of 5
of affected states
weakens authority of
compact commission

require the unanimous consent of the signatory states and the con-
sent of Congress and the President, which adds to the already con-
siderable difficulty of reaching any sort of workable agreement. Fed-
eral regulation, with the simple majority rule of congressional legis-
lation, commends itself to some of the critics of compacts as much
superior to the cumbersome method of negotiating interstate com-
pacts. 161
As a result of these many difficulties in formulating compacts,
the time lapse for negotiating and concluding compacts ranges from



161. National Resources Committee, Regional Factors in Planning and
Development (1935); see also the comments of Thursby, Interstate
Cooperation (1953); Friedrich, supra note 30.









AND THE LAW 401

CHART IIIt EXISTING INTERSTATE WATER COMPACTS

1 2 3 4
Interstate States to Compact and Earliest State or Date Compact Time Lapse from Ear-
Compact Year of Ratification Federal Compact Concluded and liest Ratification to
Ratification Became Legally Compact Becoming
Effective Legally Effective (Ap-
proximate Years)c
pr Arizona, 1949; Colo- Arizona, Jan. 21, April 6, 1949 1/4 year
Colorado rado, 1949; New Mexi- 1949
iver Basin co, 1949; Utah, 1949;
Compact Wyoming, 1949; (Con-
gressional consent,
I 1949)
kansas Colorado, 1949; Kan- Colorado, Feb. 19, May 31, 1949 1/4 year
iver sas, 1949; (Congres- 1949
compact sional consent, 1949)
Pecos New Mexico, 1949; New Mexico, Feb. June 9, 1949 1/3 year
iver Texas, 1949; (Con- 9, 1949
compact gressional consent,
__ 1949)
Pnake Idaho, 1950; Wyoming, Idaho, Feb. 11, March 21, 1950 1/12 year
River 1950; (Congressional 1950
compact consent, 1950)
Yellowstone Montana, 1951; North Wyoming, Jan. 27, Oct. 30, 1951 3/4 year
piver Dakota, 1951; Wyo- 1951
compact ming, 1951; (Congres-
sional consent, 1951)
Canadian Oklahoma, 1951; New New Mexico, Feb. May 17, 1952 1 1/4 years
River Mexico, 1951; Texas, 7, 1951
ct 1951; (Congressional
consent, 1952)

Wis the date of the earliest formal state or congressional ratification of the agreement and is not
to be confused with the earlier date when the state commissioners gave assent to the formulated
agreement.
This is the date that the compact became legally operative through the requisite state and congres-
sional ratification.
!This period reflects the approximate time differential between columns 2 and 3.

low of two years162 to a high of twenty-seven years. 163 The
average length of time for negotiating and concluding eighteen of the
Existing twenty-one water compacts was approximately 11. 9 years.164
162. Republican River Compact, 57 Stat. 86 (1943), where the President
had vetoed a previously drafted compact which had been approved by
the states and the Congress.
!63. Connecticut River Compact, 67 Stat. 45 (1953), where much of the
time is accounted for by the fact that an agreement had previously
been reached and ratified by the states but failed to obtain the
necessary congressional consent. In this situation the Congress was
thus protecting the national interest from what is considered an un-
desirable agreement.
164. The time for negotiating the compact and obtaining necessary ratifi-
cation on the chart is dated from the first concrete written evidence
of real interest in negotiating a compact, usually consent to negoti-
ation legislation by Congress but also based upon earlier compact
attempts by the states which either failed of state ratification or
congressional approval; with three of the existing compacts, South
Platte River Compact, New York Harbor (Tri-State) Interstate Sani-
tation Compact, and Costilla Creek Compact, there was not available










WATER RESOURCES


5 6 7 8
Interstate Time Required to Con- General Purpose Compact Cor- Federal Participation
Compact clude Compact from of Compact mission Organi- on Commission
First Formal Negotia- zation
tion Stimulus to Final
Approval (Approximate
Years)d
Upper 24 years. (In consent- To supplement Upper Colorado Yes, a U.S. represen-
Colorado ing to Colorado com- Colorado River River Commis- tative with equal vote
River Basin pact Congress approved compact by equi- sion composed of and power as state
Compact negotiating these sup- tably apportioning 6 members, 1 commissioners; U.S.
elementary compacts) water allocated to from each state representative acts as
the upper basin and the United presiding officer
states among States
those states
Arkansas 4 years. (Congres- Equitable appor- Arkansas River Yes, but member ex
River sional consent to nego- tionment of water Compact Admin- officio and without
Compact tiating a compact given in river basin and istration with 7 vote who acts as chair
in 1945) so to settle dis- members, 3 from man of the Adminis-
pute which had each state and 1 tration
been previously ex officio mem-
litigated for sev- ber from U.S.
eral years in the without vote
Supreme Court
Pecos 24 years. (A previous Equitable appor- Pecos River Yes, a member who
River compact was negotiated tionment of waters Commission with presides but without
Compact in 1925 but failed of in river basin 3 members, 1 vote
both states giving rati- from each state
fiction) and U.S. but
with federal rep-
resentative pre-
siding without
vote
Snake 26 3/4 years. (Previ- Equitable appor- None. (State wa- Yes, in limited sense
River ously negotiated com- tionment of river ter officials to that federal represen-
Compact pact ratified only by system waters administer com- tative will participate
Idaho) with system of pact) when state officials
preferred uses cannot agree and then
established a majority vote gov-
erns
Yellowstone 6 5/6 years. (Previ- Equitable appor- Compact com- Yes, representative
River ously negotiated com- tionment of water mission involv- who acts as chairman
Compact pact ratified only by in river basin ing only Mon- with no vote except
Montana and North tana and North when state officials
Dakota) Dakota with 3 cannot agree and then
members, 1 majority vote governs
from each state
and 1 from
United States
Canadian 26 years. (Previously Equitable appor- Canadian River Yes, representative
River negotiated compact not tionment of water Commission with who acts as presiding
Compact ratified by all the in river system 4 members, 1 officer but has no
states) from each state vote
and 1 from
United States
dThis period reflects the approximate time differential between the earliest ascertainable formal nego-
tiation stimulus (congressional consent to negotiate a compact or recorded formal state negotiations-
whichever is earlier) and the date of the compact becoming legally effective (column 3). With some
of the compacts there was not evidence of the earliest formal negotiation stimulus and so no time
period could be computed for those compacts.


Footnote continued
such concrete written evidence of the initial negotiation stimulus. If
preliminary and informal negotiating talks were available, it would
probably reflect an even greater length of time.










AND THE LAW


9 10 11 12 13
Interstate Administrative or Voting Adequate Adequate Related Legislation
.Compact Regulatory Powers Procedure Enforce- Adjudicatory
ment Powersf
Powerse
Upper Fairly adequate; has 4 out of 5 Yes, im- Unclear, but 70 Stat. 105; (Congres-
Colorado full power to carry vote on any plicit pow- seems fairly sional consent, 63 Stat.
River out compact appor- action er in cor- certain to' 31)
Basin tionment with flexi- mission to contain some
Compact ability and discretion make bind- rather broad
in some matters to Ing deter- adjudicatory
accomplish best use minations powers
of water as circum- and bring
stances warrant appropri-
ate action
to enforce
determina-
tions
Arkansas Very limited; me- Unanimous None. State None None. (Congressional
River chanical functions of with each water agen- consent, 63 Stat. 145)
Compact carrying out the ap- state hav- cies to have
portionment and ing only 1 the only en-
fact-finding powers vote; if tie forcement
only vote states powers
by a unani-
mous vote
may submit
difference to
arbitration
by U.S.
member
Pecos Limited; mostly me- Unanimous None Not clear, but None. (Congressional
River chanical duties of apparently consent, 63 Stat. 159)
Compact effecting apportion- limited adju-
ment and fact-find- dicatory pow-
ing; but some dis- ers
cretionary powers
and flexibility to ap-
portion water _
Snake Very limited; me-' Majority None None None. (Congressional
River chanical duties of vote; the consent, 64 Stat. 29)
Compact effecting apportion- U.S. mem-
ment of waters with ber voting
very little discre- on dead-
tionary powers or locked is-
flexibility sues
Yellowstone Very limited; me- Majority None None 63 Stat. 152; (consent
River chanical duties of vote; the to negotiating compact)
Compact effecting apportion- U. S. mem- (Congressional consent,
ment of waters with ber voting 65 Stat. 663)
very little discre- on dead-
tionary powers or locked is-
_flexibility sues
Canadian Limited; mostly me- Unanimous None None 64 Stat. 1124; (Con-
River chanical duties of gressional consent,
Compact effecting apportion- 66 Stat. 74)
ment but some dis-
cretion and flexibil-
ity in apportioning
water

eThe criteria for the conclusion whether a compact commission possesses adequate enforcement pow-
fers is enumerated in some detail in the following discussion of compact enforcement powers.
The criteria for 'the conclusion whether a compact commission possesses adequate adjudicatory pow-
ers is enumerated in some detail in the following discussion of compact enforcement powers.

However, there is no serious time lag from the date 'of earliest
state ratification of the drafted compacts to the date of final conclu-
Ssion by other states and Congress. The time required was just










WATER RESOURCES


14 15 16 17
Interstate Litigation Involving Litigation Prior Pending or Con- Comments
Compact Compact to Compact eluded Related
Compacts
Upper None None Colorado River Could make the en-
Colorado Compact; La forcement and adjudi-
River Basin Plata River catory powers clearer
Compact Compact; pend- and make broader reg-
ing*Lower ulatory powers so as
Basin Colorado to have a little more
River Compact flexibility. Has many
worthwhile features
Arkansas None Kansas v. Colora- None Lacks enforcement and
River do, 185 U.S. 125 adjudicatory powers;
Compact (1902); Kansas v. has very limited regu-
Colorado, 206 U.S. latory powers and is
46 (1907); Colo- handicapped by unani-
rado v. Kansas, mous voting rule
320 U.S. 383 though there is arbi-
(1943) tration provision
Pecos None None None Lacks enforcement and
River adjudicatory powers
Compact adequately spelled out;
has very limited regu-
latory powers and is
handicapped by the
unanimous voting rules
Snake None None None Lacks commission and
River enforcement and adju-
Compact dicatory powers; even
states officials' duties
very mechanical in
nature; but system of
majority voting is
good
Yellowstone None None None Lacks enforcement and
River adjudicatory powers;
Compact has inadequate flexi-
bility; but system of
majority voting is good
Canadian None None None Lacks enforcement and
River adjudicatory powers
Compact and regulatory powers
are quite limited; the
unanimous voting pro-
cedure also hampers
efficiency of operation

slightly over one year. 165 However, there is a significant time lag
of over eight years in concluding the compact from the time of final

165. The time lag is approximately 1.1 years. But the New York Harbor
Compact became effective when only two of the states had ratified
along with Congress so that the time lag including all three states
becoming parties to the compact was about 6 years instead of 6
months; a similar situation existed for the Ohio River Valley Water
Sanitation Compact so that the time lag including ratification by all
of the states was 10 years instead of 1 1/3 years. (In the Colorado
compact, the ratification by Arizona, much later than the other
states, was not included because the validity of that ratification is
one of the issues involved in the pending controversy in the United
States Supreme Court between California and Arizona.) Yet, even
with these higher figures being utilized the average time lapse is
still only about 1.8 years.









AND THE LAW


CHART IV: EXISTING INTERSTATE WATER COMPACTS


1 2 3 4
Interstate States to Compact and Earliest State or Date Compact Time Lapse from Ear-
Compact Year of Ratification Federal Compact Concluded and liest Ratification to
Ratification Became Legal- Compact Becoming
ly Effective" Legally Effective (Ap-
proximate Years)c
Connecticut Connecticut, 1951; Vermont, May 9, June 6, 1953 2 years
River Massachusetts, 1951; 1951
Compact New Hampshire, 1951;
Vermont, 1951; (Con-
gressional consent,
1953)
Sabine Louisiana, 1954; Texas, April 21, Aug. 10, 1954 1 1/3 years
River Texas, 1953; (Con- 1953
Compact gressional consent,
1954)
Klamath California, 1957; California and Aug. 30, 1957 1/3 year
River Basin Oregon, 1957; (Con- Oregon, April 17,
Compact gressional consent, 1957
1957)

aThis is the date of the earliest formal state or congressional ratification of the agreement and is not
to be confused with the earlier date when the state commissioners gave assent to the formulated
agreement.
This is the date that the compact became legally operative through the requisite state and congres-
sional ratification.
This period reflects the approximate time differential between columns 2 and 3.

drafting of the agreement to the completed ratification by all of the
states and Congress. 166 These time lapse figures demonstrate that
the bottleneck in concluding interstate water compacts is twofold:
first in the formulating and drafting stage; second in the inertia
period between the drafted agreement and some state taking the ini-
tiative to first ratify the agreement. There is nothing wrong with
the technical legal machinery of ratification once the agreement is
formulated and the first state leads the way in ratifying the com-
pact. These facts are significant in pinpointing the difficulties of
negotiating the compact and indicating where remedial measures are
needed.
The inordinate length of time in the over-all negotiation of com-
pacts represents a rather substantial defect in solving regional water
resources problems through this device, since the problems may be-
so acute as to require more expeditious action, and the greater the
delay the more aggravated the problem becomes with an increasing
difficulty in working out a satisfactory solution. The evidence would

166. 3 Task Force Report on Water Resources, pp. 1692-1693 (1955),
where it is pointed out that the time lapse figure of 8 years and
9 months "is measured from the actual signing or first ratification
of the compact (whichever is earlier) to the date of Federal consent.
In these cases if the period of negotiation were also included these
average time periods would be longer."









WATER RESOURCES


5 6 7 8
Interstate Time Required to Con- General Purpose Compact Corn- Federal Participation
Compact clude Compact from of Compact mission Organi- on Commission
First Formal Negotia- zation
tion Stimulus to Final
Approval (Approximate
Years)
Connecticut 27 years. (All states Flood Control of Connecticut River None
River at that time had nego- the Connecticut Valley Flood
Compact tiated a compact and River system Control Commis-
ratified it, but Con- sion with 12
gress failed to ratify) members, 3 from
each state
Sabine 2 3/4 years. (Con- Equitable appor- Sabine River Yes, 1 representative
River gressional consent to tionment of water Compact Admin- as chairman without
Compact negotiations given in in Sabine River istration with 5 vote
1951) Basin members, 2
from each state
and 1 from
United States
Klamath 2 years. (Congres- Equitable appor- Klamath River Yes, 1 representative
River sional consent to nego- tionment of Kla- Compact Com- as chairman without
Basin tiations given in 1955) math River Basin mission with 3 vote
Compact based upon exist- members, 1
ing vested rights from each state
and prior appro- and 1 from
priations in the United States
future with pre-
ferred water uses
enumerated; pro-
vides maximum
hydroelectric
power and pollu-
tion control
dThis period reflects the approximate time differential between the earliest ascertainable formal nego-
tiation stimulus (congressional consent to negotiate a compact or recorded formal state negotiations-
whichever is earlier) and the date of the compact becoming legally effective (column 3). With some
of the compacts there was not evidence of the earliest formal negotiation stimulus and so no time
period could be computed for those compacts.

indicate that the conservation and beneficial utilization of the na-
tion's water resources dictate prompter action than the time so far
needed to negotiate and conclude interstate water compacts. 167 Pro-
fessor Laski has said of the compact device:

No doubt... the Compact Clause of the Constitution offers
the necessary possibilities of transcending state limits; but any
careful survey of its achievements, even when it is undertaken
...with goodwill towards, and faith in, its opportunities, sug-
gests that the Compact Clause requires something like geologi-
cal time to achieve the results that are desirable. But the
United States, with all its resources, has not geological time
at its disposal. On the contrary, the evidence is both abundant


167. See the introduction to this paper and some of the facts there dis-
cussed showing the increasing water problems facing the states, inter-
state regions and the nation. The needs of the country require prompter
action than the time so far required to conclude most interstate water
agreements.











AND THE LAW 407


9 10 11 12 13
Interstate Administrative or Voting Adequate Adequate Related Legislation
Compact Regulatory Powers Procedure Enforce- Adjudicatory
ment Powersf
Powerse

Connecticut Limited; some con- 2 of 3 In limited Limited to ad- 49 Stat. 1490; (Con-
River tinuing supervision members area it judicating cer- gressional consent, 67
Compact and discretion to ad- from each seems im- tain tax loss- Stat. 45)
minister equitably state and plicit that es for gover-
tax loss reimburse- all states commis- nor of state
ment aspects of pro- sion has
gram enforce-
ment au-
thority
Sabine Very limited; mostly 3 of 4 None. (All None 65 Stat. 736; (Consent
River mechanical duties of members; violations to negotiations) (Con-
Compact effecting apportion- in case of are re- gressional consent, 68
ment and fact-find- tie vote ferred to Stat. 690)
ing functions, but either side state offi-
does have some may refer cials)
limited supervisory question to
powers arbitration
but com-
pact is si-
lent on ef-
fect of ar-
bitration
decision
Klamath Fairly adequate; has Unanimous Yes, can Yes, hearing 69 Stat. 613; (Consent
River powers to carry out vote of 2 issue en- procedure to negotiations) (Con-
Basin all of the compact members; forcement provided gressional consent,
Compact provisions with flexi- in case of orders and 71 Stat. 497)
ability and discretion tie vote can bring
to accomplish better each mem- enforce-
use of water ber to ap- ment action
point 1 in court
member
and 2
members
so desig-
nated to
appoint a
3rd mem-
ber to con-
stitute ar-
bitration
forum on
deadlocked
issue; ma-
jority vote
of such
forum to
control on
deadlocked
issue

eThe criteria for the conclusion whether a compact commission possesses adequate enforcement pow-
fers is enumerated in some detail in the following discussion of compact enforcement powers.
The criteria for the conclusion whether a compact commission possesses adequate adjudicatory pow-
ers is enumerated in some detail in the following discussion of compact enforcement powers.


-w









WATER RESOURCES


14 15 16 17
Interstate Litigation Involving Litigation Prior Pending or Con- Comments
Compact Compact to Compact cluded Related
Compacts
Connecticut None None None Lacks adequately de-
River fined enforcement and
Compact adjudicatory powers
and has no federal
participation in com-
pact; a simple major-
ity vote would seem
better
Sabine None None None Lacks enforcement
River and adjudicatory pow-
Compact ers and adequate flexi-
bility of regulatory
duties. Instead of the
vote referral to arbi-
tration, a vote by fed-
eral representative
might be better
Klamath None None None Quite good multipur-
River pose compact with en-
Basin forcement and adjudi-
Compact catory powers in com-
mission. But federal
representative without
vote and 2 step arbi-
tration more cumber-
some than simple ma-
jority vote. Uses of
water are perhaps too
rigidly spelled out in
compact and too de-
pendent upon individ-
ual state law


and growing that it must seek to make area coincide with func-
tion if it is at once to avoid excessive centralization and to be
in a position effectively to deal with the social and economic
issues before it.168

The states must resolve this serious difficulty by concerted ef-
fort toward genuine cooperation in negotiating agreements, keeping
in mind that the federal government tends inexorably to fill voids
left by state inaction. As has previously been shown, the answer
to the problem is not simply met by a ready-made type of technical
legal alteration in the ratification procedure. Rather, the states
must realize the problem in its proper perspective and bargain in
good faith-not with the thought of merely conserving local interests
without regard to the welfare of the water region or the nation. Cer-
tainly the situation is not hopeless, as may be evidenced by the con-
clusion of 390 civil defense compacts since January of 1951. This

168. Thursby, Interstate Cooperation, 139 (1953), where Professor Laski
is quoted in these very appropriate words. Laski was speaking of
all interstate compacts but water compacts are particularly vulner-
able to his conclusions.








AND THE LAW


"testifies to what the pressure of an emergency, the development of
standard form agreements, the placing of a duty to encourage agree-
ments on a Federal official, and a streamlined consent procedure
can do to shorten the time of negotiation and ratification."169 Com-
ing to an agreement on the myriad problems of an interstate river
may present technical problems and difficulties, the continuing type
,of regulation required proving more difficult of solution to the states
than the defense compacts. However, several interstate water com-
Ipacts prove that agreements can be reached and ratified in reason-
iable periods of time, since six water compacts were negotiated and
concluded in four years or less. 170 Moreover, the increasing use
of the compact device in more recent times displays the ability of
the states to come to equitable agreements on vexing problems. 171
169. 3 Task Force Report on Water Resources, p. 1693 (1955). However,
agreement on civil defense is not a controversial matter. It is some-
thing all the states fundamentally agree on. But interstate cooperation
in regulating regional water is a controversial subject on which there
is no broad base of fundamental agreement to build an interstate
compact.
170. La Plata River Compact, 43 Stat. 796 (3 years); Potomac River
Basin Compact, 54 Stat. 748 (3 Years); Ohio River Valley Water
Sanitation Compact, 54 Stat. 752 (4 years in becoming legally effec-
tive but 12 years for all states becoming parties to the compact);
Republican River Compact, 57 Stat. 86 (2 Years); Arkansas River
Compact, 63 Stat. 145 (4 years); Sabine River Compact, 68 Stat. 690
(2 3/4 years).
171. See Zimmermann and Wendell, The Interstate Compact Since 1925
(1951); Zimmermann and Wendell, "Bridging State Lines," 46 Nation-
al Municipal Review 71 (1957); also, as the chart shows, 21 water
compacts have been concluded since 1925. At the present time there
are 6 other unperfected water compacts. These 6 unperfected compacts
are: Bear River Compact (Idaho, Utah & Wyoming); Cheyenne River
Compact (South Dakota & Wyoming); Columbia Interstate Compact
(Idaho, Montana, Nevada, Oregon, Utah, Washington & Wyoming);
Deleware River Basin Compact (Delaware, New Jersey, New York &
Pennsylvania); Great Lakes Basin Compact (Illinois, Indiana, Michigan,
Minnesota, New York, Ohio, Pennsylvania & Wisconsin); Tennessee
River Pollution Control Compact (Alabama, Georgia, Kentucky, Mis-
sissippi, North Carolina, Tennessee & Virginia). In addition Congress
has authorized the negotiation of the following 7 interstate water com-
pacts: Arkansas River (Arkansas & Oklahoma); Arkansas River (Kansas
& Oklahoma); Ground Water Allocation (Nebraska, South Dakota &
Wyoming); Lake Tahoe (California & Nevada); Niobrara River (Nebraska,
South Dakota & Wyoming); Ponca Creek (Nebraska & South Dakota);
Red River (Arkansas, Louisiana, Oklahoma & Texas). United States
Department of the Interior, Documents on the Use and Control of the
Waters of Interstate and International Streams (compiled and edited
by T. Richard Witmer (1956); Council of State Governments, Interstate
Compacts 1783-1956 (July 1956).


Id








WATER RESOURCES


If negotiating compacts is an imperfect system, consider the limita-
tions of congressional action in this field and the great difficulties
with Supreme Court adjudication. Neither Supreme Court adjudica-
tion nor congressional action offers any hope of quicker action in
resolving the complex problems of regulating interstate waters, and
these alternative means are teeming with other serious, and per-
haps insuperable, deficiencies which appear incapable of any easier
remedy than with the compact device. i2

B. Enforcement
When speaking of enforcement, two things can be meant: en-
forcement at the Federal Supreme Court level or enforcement at the
compact commission level. In the chart and this discussion, en-
forcement takes its point of reference at the compact commission
stage of operation. The focal point is at the administrative, not the
judicial, stage of proceeding. As an abstract principle it is clear
that a state may be compelled to honor its obligations under an in-
terstate compact through the enforcement power of the Supreme
Court or through the legislative power of Congress. 173 Any doubts
as to the efficacy of obtaining enforcement of compacts by these
means must have been dispelled by the Supreme Court opinion in
Dyer v. Sims. 174 These two methods of resorting to Congress or
the Supreme Court provide ultimate means of obtaining state compli-
ance with the provisions of interstate agreements.
However, the crucial area for enforcement is one step re-
moved-at the compact commission level of administering the com-
pact. If the compact commission has nothing to enforce, no author-
ity to compel, then resort to the Congress or the Supreme Court is
futile. The real test of the wisdom and strength of a compact is
measured by the ability of the compact's administrative body to
carry out the provisions of the compact and compel compliance with-
out resort to litigation. 175 The following standards have here been
172. See the criticisms of Supreme Court litigation and congressional
legislation in section V supra.
173. Virginia v. West Virginia, supra note 83. Powell, supra note 85.
174. 341 U.S. 22, 71 S. Ct. 557 (1951). The majority and concurring opin-
ions make it clear that under any theory the court will enforce the
provisions of interstate compacts.
175. "Although judicial enforcement undoubtedly is a useful last resort, it
is submitted that suits in the Supreme Court, as a means of securing
performance of compact obligations, are too much emphasized. In
the drawing of private contracts, the extent to which litigation can be
forestalled or avoided generally is thoughtto be a yardstick of success.
This is the reason why provisions calling for arbitration or liquidated
damages are incorporated so often into private agreements.... It is
both possible and desirable to promote extrajudicial enforcement of








AND THE LAW


established to determine whether a compact contains adequate en-
forcement powers:
1. A compact commission must be established. If no interstate
commission is established, then obviously there can be no
enforcement at the administrative level and there must be
resort by the states or private individuals to the courts for
enforcement.
2. The compact commission must have enforceable powers, not
merely fact-finding or recommendatory functions. If no ob-
ligations can be created, then there is no reason to resort
to the courts or anyone else for compliance.
3. The voting procedure of the commission must not provide for
the unanimous vote of all the members from all of the
states. If all of the commissioners must agree upon a
course of conduct before binding obligations can come into
existence, then this is little more than mutual state negotia-
tion and agreement on every issue on an ad hoc basis. En-
forceable powers can then come into being only when every
state desires it. This is not much better than informal
state cooperation because all of the states will agree only to
action which does not impinge on selfish state interests,
rather than enforcement being brought in the interest of re-
gional well-being.
4. The compact commission itself must be able to bring court
action to enforce its rules, regulations, and orders, and not
have to rely upon state or individual action. If the commis-
sion must rely upon court action by respective states or pri-
vate individuals, then unpopular commission action in some
states might never be complied with and enforcement never
sought in the courts.
5. The rules, regulations, orders, and other actions of the com-
mission must be subject to enforcement; the commission
must not be limited to only enforcement of specific provi-
sions of the compact itself, for any state or private individ-
ual can do as much.
Closely related to the problem of ascertaining whether a compact
commission has sufficient enforcement powers is the question of
whether the commission also has adequate adjudicatory powers. The
standard which was used in making this determination in the
Footnote continued
interstate compact." Zimmermann and Wendell, The Interstate Com-
pact Since 1925, 48-49 (1951). A strong compact commission ought
to minimize resort to court adjudication.








WATER RESOURCES


formulation of the chart was: first, the compact commission must
have the authority to adjudicate disputes between persons operating
under the compact and not just have adjudicatory power over inter-
commission disputes; second, the commission must have authority
to issue orders, after decision, which are enforceable under the
same criteria of adequate enforcement powers as previously dis-
cussed.
Although these standards may appear to be quite strict and even
perhaps arbitrary, still they afford a convenient base of reference
for a closely critical appraisal of the compact device. These cri-
teria of what is considered to be an ideally perfect system of en-
forcement powers can be utilized as a measuring stick of existing
water compact enforcement powers. Using such measurement one
can conclude that present water compacts fare rather poorly. Of
the twenty-one existing compacts only eight qualify as possessing
adequate enforcement and adjudicatory powers and three of these are
in a doubtful category. They line up something like this:


Adequate Enforcement and Adjudicatory Powers a

1. New York Harbor (Tri-State) Interstate Sanitation Compact.
(But the voting procedure leaves something to be desired-
requires 3 of 5 members from each state.)
2. Ohio River Valley Water Sanitation Compact. (Voting
procedure requires 2 of 3 members from majority of the
states and 2 of 3 members from any affected state.)
3. New England Interstate Water Pollution Control Compact.
(Voting procedure requires 3 of 5 members from any
affected state.)
4. Upper Colorado River Basin Compact. (Voting procedure
requires 4 of 5 members of commission.)
5. Klamath River Basin Compact. (Voting procedure requires
2 of 2 members but compulsory arbitration on tie vote so
a two step majority vote.)


a. All of the voting procedures, with the exception of the
Upper Colorado River Compact and the Klamath River
Basin Compact, require a majority of the commissioners
from affected states, which greatly impairs the efficacy of
even these enforcement powers. In the case of the Upper
Colorado River Compact, four of the five commission mem-
bers must approve.








AND THE LAW


Possibly Adequate Enforcement and Adjudicatory Powersb

1. Red River of the North Compact. (Voting procedure
requires 2 of 3 members from each state.)
2. Costilla Creek Compact. (Voting procedure requires un-
animous vote on adopting internal rules but not clear as
to obligatory measures.)
3. Connecticut River Compact. (Voting procedure requires
2 of 3 members from each state.)

b. The three compacts do not have provisions which are
clear concerning enforcement and adjudicatory powers,
even though it seems implicit in each of these compacts
that the agreements contain the requisite powers.

With over 60% of the existing compacts lacking adequate enforce-
ment powers and the remainder suffering from some infirmities in
the voting procedure, it can safely be concluded that a considerable
amount of desirable compact action must be frustrated by one or
more recalcitrant states even in situations where a majority of the
state commissioners desire a proposed course of action. Although
analysis of the several compacts and the litigation pertaining to them
does not reflect the number of times that recalcitrant states have
obviated the purposes and policies of the respective compacts, and
even the desires of a majority of the states to the compact, still it
may fairly be determined that the potential in any one state to im-
pair the compact must raise a very serious impediment to the effi-
cacy of such compacts. 176
In the thirteen compacts having inadequate enforcement powers,
compact compliance must depend upon individual state acquiescence.
Even in the other eight compacts, with the exception of the most
recent Klamath River Basin Compact, much depends upon obtaining
cooperation for all measures from all states because of the voting
procedures. Although the states may show a remarkable amount of
cooperative spirit and accede to the will of the majority in most

176. Only two compacts provide a simple majority method of voting on all
action. These are the Snake River Compact, 64 Stat. 29 (1950), and
the Yellowstone River Compact, 65 Stat. 663 (1951). Both of these
compacts suffer from other serious enforcement deficiencies; the
Snake River Compact has no compact commission but is administered
by state water officials and when the two states are deadlocked the
federal representative casts the deciding vote; the Yellowstone River
Compact has no real regulatory or discretionary duties but only
carries out the apportionment formula of the compact. But both the
Snake River Compact and the Yellowstone River Compact offer ideal
examples of what should be the voting procedure for all compacts.








WATER RESOURCES


situations, still the voting procedure which enables one state to
frustrate enforcement makes state compliance permissive and not
compulsive. It has been accurately observed:

But is one assumes that effective organizations should be
designed to meet serious conflicts and administrative crises
rather than the daily run of noncontroversial business, then
the voting arrangements by which decisions may be taken are
a significant indication of administrative strength.177

Without adequate enforcement powers, the compact commission must
rely upon the equanimity and good will of each state to accomplish
worthwhile objectives. But if the states had displayed such selfless
qualities, written agreements might never have to be made.
Still a compact commission lacking adequate sanction powers
may prove to be very persuasive and quite effective in settling dis-
putes and accomplishing substantial beneficial action for all of the
states and the region. 178 Much good can come just from having a
written agreement dealing with water problems. Considerable con-
troversy may be avoided by having a written compact as some basis
for cooperative state activity. Yet the compact device to be a truly
effective instrument for settling interstate water disputes and obtain-
ing regional water planning must contain coercive power, just as any
effective regulatory body needs this power. 179
Although there may have been some earlier doubts expressed as
to the extent of enforcement and adjudicatory-powers which could be
given to an interstate compact commission, 180 it seems quite clear
now that all reasonable regulatory powers and sanctions can be given
to a compact commission so long as the powers do not expressly,

177. 3 Task Force Report on Water Resources, p. 1699 (1955). Closely
related to this voting procedure deficiency is the large number of
voting members on most of the interstate water compact commissions.
178. See Comment, "Governmental Techniques for the Conservation and
Utilization of Water Resources: An Analysis and Proposal," supra
note 126.
179. See Zimmermani and Wendell, The Interstate Compact Since 1925, c.
II (1951). No one today would think of the important federal and
state agencies as adequately equipped to perform their functions devoid
of compulsive powers. The interstate compact commissions likewise
need this power.
180. See the reservations expressed by Friedrich, supra note 30 at 277,
and Friedrich cites The Report and Recommendations of Committee
of the National Reclamation Association on Preservation of Integrity
of State Water Laws (1943) in support of his conclusion; see also
Ireland, "Recent Developments in the Use Of Interstate Water Compacts,
21 Dicta 77 (1944).








AND THE LAW


clearly, and unequivocally conflict with a signatory state's constitu-
tional provisions or with the Federal Constitution. 181 The criticism
relating to the lack of enforcement powers being contained in the
present interstate water compacts is justified, not because the requi-
site powers cannot be given but because they have not been given.
There remains the potential to provide all reasonably adequate en-
forcement and adjudicatory powers in these compact commissions.

An interstate agency established by compact can be en-
dowed with all the powers normally associated with local
government. It can exercise eminent domain, finance, con-
struct and operate public works and facilities, police these
operations and collect fees therefrom to support revenue bonds.
It can formulate and enforce regulations or ordinances. It
can levy taxes in order to carry out and maintain a regional
program. It can confer extraterritorial authority for specified
purposes on courts and administrative officers. These powers
can be delegated to an interstate agency on the same condition
with respect to the establishment of standards and making of
findings as would govern delegation of powers to the agency of
a single state.182,

Lack of these essential enforcement provisions in the interstate
water compacts relates, not to constitutional limitations, but to the
inadequacies of negotiating the compacts initially. It is recognized
that these compacts probably perform adequately the intended pur-
poses of the contracting states, being quite limited in scope, but
nonetheless these defects detract from the ideal potential effective-
ness presented by the compact method and serve to point up the fact
that the compact device has not been fully exploited by the states.183
181. Dyer v. Sims, 341 U.S. 22, 71 S.Ct. 557 (1951); "...[I]t now is
settled that a State may delegate powers to an interstate agency of
which it is a member and may assume long range financial obliga-
tions under compacts, provided only that there are no clear and
specific provisions of the State constitution to the contrary," Council
of State Governments, The Book of the States, 1952-53, vol. 9, p. 22.
182. Zimmermann and Wendell, "Bridging State Lines," 46 National Munic-
ipal' Review 71, 75 (Feb., 1957). In this regard it might be pertinent
to observe that the Supreme Court of the United States has never held
any interstate compact invalid, and it is unlikely that it ever will.
183. Any criticism that the compacts are deficient in enforcement powers
because they must resort to court litigation for enforcement is valid
only insofar as a particular compact commission cannot bring enforce-
ment action in the courts. The criticism is not otherwise justified
since the compact commission is no worse off than any state or fed-
eral agency which likewise must resort ultimately to the courts for
the enforcement of its actions when there is a refusal to comply.
This again demonstrates that the crucial focal point in ascertaining
whether compacts contain adequate enforcement powers is at the
administrative level itself.


.-o








WATER RESOURCES


C. Inflexibility of Compacts
The rigidity of interstate water compacts is really not an iso-
lated problem but cuts across the areas of negotiation, enforcement,
and continuing regulatory powers. This inflexibility is but a reflec-
tion of these other three shortcomings. It pertains to ease of agree-
ment, efficiency of operation, continuity of supervision, and elas-
ticity of direction under the compact device.
Equal sovereign states negotiating an interstate agreement tend
toward a formality similar to national treaty-making which makes
for stiffness in bargaining when pliant, informal relations would help
toward easier agreement. 184 The myriad difficulties of arriving at
an agreement are strong causative factors for the provisions of a
compact becoming inalterably fixed, not yielding to subsequently
needed amendments and modifications to correct initial mistakes or
to compensate for changed circumstances. 185 This is another fac-
tor which argues for conferring broad, discretionary powers on the
compact commission in the first instance instead of spelling out all
of the duties in complete elaborateness. There are, of course,
some happy exceptions where the compact commission itself will
draft recommended changes for the compact. 186 In fact, some writ-
ers do not feel that the formality of compacts implies real rigidity
but rather that the compact is a pliant mold. 187 An examination of

184. See Thursby, Interstate Cooperation 188 (1953); Rogers, supra note
128. However, it is apparent that a certain amount of formality is
both inevitable and perhaps required when sovereign states meet to
negotiate important agreements.
185. See Friedrich, supra note 30. A defect in the initial compact may
accrue to the benefit of one state and to the detriment of all other
signatory states, but the one state can prove a stumbling block to
any amendment because unanimous approval by all of the states would
be necessary.
186. A change in the Rio Grande Compact was made by the compact com-
mission in a resolution adopted at its annual meeting, February 22-
24, 1948 (Tenth Annual Report of the Rio Grande Compact Commis-
sion, 1948). This is the exception and not the rule.
187. "Nor does formality necessarily imply awkwardness or rigidity. One
of the cardinal lessons to be learned from the experience of the past
twenty-five years is that the compact is a pliant mold. In any given
instance its shape is influenced by the desires of the parties, and its
content is determined by the problem or problems to be solved."
Zimmermann and Wendell, The Interstate Compact Since 1925, p. 104
(1951). Perhaps the only criticism of these authors is their unbounded
optimism and enthusiasm for the compact device so that at times they
may tend to unduly minimize the defects immanent in interstate com-
pacts. Their observation that compacts are a pliant mold seems
misplaced.








AND THE LAW


the interstate water compacts in some considerable detail reveals
their mold to be something less than pliant.
Cumbersomeness of operation may result from the multiheaded
agency organizations, the methods of voting procedure, and the de-
pendency upon individual state legislatures for financing compact
commission activity. 188 An administrative body so handicapped has
great difficulty being dynamic and gravitates toward a calcified type
of regulation. Lack of adequate enforcement powers makes the job
of efficient administration even more difficult. The concept of being
dynamic seems to include the power to act.
For the most part, compacts dealing with interstate waters
spell out in such mathematical certainty the points of agreement
that there is little or no room for improvisation and flexibility of
action to meet the infinite variety of problems not contemplated by
the compact. In fifteen of the twenty-one water compacts this is
the case, with ten of these compacts having extremely limited regu-
latory powers, and the other six having only slightly more regula-
tory powers. 189 Certainty of obligation is a worthy attribute but
the compacts have placed undue stress on this factor. In many
compacts there is lacking the continuity of regulation capable of
meeting and coping with changing situations as they arise. Dealing
with the problems of interstate waters usually requires flexible regu-
lation and not absolute fixity; it requires planning and policymaking,
not stultifying stability. 190 These deficiencies relate back to the
negotiation stage when adequate compact flexibility could be written
into the agreement.
188. See 3 Task Force Report on Water Resources, pp. 1696-1699 (1955).
Some interstate organizations may be financially self-sufficient from
operational income but most commissions must rely upon state and
federal financing.
189. These 15 compacts break down into 10 with really no leeway for
commission action: South Platte River Compact, 44 Stat. 195
(1926); Colorado River Compact, 45 Stat. 1057 (1928); Rio Grande
Compact, 53 Stat. 785 (1939); Potomac River Basin Compact, 54
Stat. 748 (1940); Republican River Compact, 57 Stat. 86 (1943); Belle
Fourche River Compact, 58 Stat. 94 (1944); Arkansas River Compact,
63 Stat. 145 (1949); Snake River Compact, 64 Stat. 29 (1950); Yellow-
stone River Compact, 65 Stat. 663 (1951); and Sabine River Compact,
68 Stat. 690 (1954); 5 compacts with very little leeway for action
are: La Plata River Compact, 43 Stat. 796 (1925); Red River of the
North Compact, 52 Stat. 150 (1938); Pecos River Compact, 63 Stat.
159 (1949); Canadian River Compact, 66 Stat. 74 (1952); and Connect-
icut River Compact, 67 Stat. 45 (1953).
190. See Thursby, Interstate Cooperation 110-111 (1953); National Re-
sources Committee, Regional Factors in Planning and Development
(1935); Comment, "Governmental Techniques for the Conservation
and Utilization of Water Resouuces: An Analysis and Proposal,"
supra note 126.








WATER RESOURCES


D. Inadequate Regulatory Powers
Much of what has already been said by way of criticizing the
compact device is equally applicable to the difficulty created by the
inadequacy of continuous administrative supervision and the lack of
needed regulatory powers. More specifically this difficulty resolves
itself into three phases: establishment of an interstate compact com-
mission, conferring of requisite regulatory powers, and the method
of voting procedure. Somewhat less important, but incidentally re-
lated to this problem, is the degree of active federal participation
in the compact.
Without the establishment of an interstate compact commission
it is next to impossible to provide a continuity of administration for
all of the interstate region. By utilizing individual state officials
as administrators in each of the respective states, there is super-
vision along strictly state lines with no cohesive unit to bring about
regional planning and regulation. State water officials are going to
be state officials first and representatives of the interstate compact
in a secondary capacity. Interstate water problems are rarely sus-
ceptible of solution by compact terms but require a continuing regu-
latory body to effectuate the purposes of the agreement. Despite
these rather apparent facts, six of the water compacts provide for
no compact commission but rely upon varying degrees of supervi-
sion by state water officials. 191
Only the Potomac River Basin Compact Commission is com-
pletely and solely a fact-finding and recommendatory organization.192
As previously noted, however, ten of the water compacts have ex-
tremely limited regulatory powers conferred upon either the com-
pact commission or state water officials. 193 Five other compacts
have quite limited regulatory powers. 194 Essentially, these com-
pacts confer mechanical duties on the administrators of effectuating
predetermined water apportionment, or the like, with a severely re-
stricted scope of discretion or flexibility in the administrative body.
There is no opportunity for planning, adjudication, enforcement, or
supplementing of the general compact provisions with rules,
191. These compacts are: La Plata River Compact, 43 Stat. 796 (1925);
South Platte River Compact, 44 Stat. 195 (1926); Colorado River
Compact, 45 Stat. 1057 (1928); Republican River Compact, 57 Stat.
86 (1943); Belle Fourche River Compact, 58 Stat. 94 (1944); and the
Snake River Compact, 64 Stat. 29 (1950). The La Plata and South
River Compacts do provide some degree of discretion and flexibility
to the respective state officials for at least a minimum of supervi-
sion in carrying out the policies of the compacts.
192. Potomac River Basin Compact, 54 Stat. 748 (1940).
193. See note 189 supra.
194. Ibid.








AND THE LAW


regulations, and orders. But six of the compacts are excellent ex-
amples of the broad regulatory powers which can be conferred upon
compact commissions to accomplish the needs of continuing super-
vision and planning over interstate waters. 195
A mere recitation on the breakdown of the various compact vot-
ing procedures clearly points up the inadequacies of most water
compacts in this regard. Five compacts provide for unanimous vot-
ing;196 one is not clear but may provide for unanimity;197 six com-
pacts require either a majority vote of the commissioners from
each state or a majority vote from the commissioners of any af-
fected state;198 one compact requires four of five commissioners
but not necessarily the vote of the affected state;199 one compact
provides for unanimous vote but in a case of a deadlock the states
may unanimously agree to submit the question to arbitration by the
federal representative;200 one compact provides for three of four
commissioners and in case of a tie vote either side may refer the
question to arbitration;201 three compacts provide for no type of
voting procedure;202 and only two compacts have in effect a simple
195. The 6 compacts are: New York Harbor (Tri-State) Interstate Sani-
tation Compact, 49 Stat. 932 (1935); Ohio River Valley Water Sani-
tation Compact, 54 Stat. 752 (1940); Costilla Creek Compact, 60
Stat. 246 (1946); New England Interstate Water Pollution Control Com-
pact, 61 Stat. 682 (1947); Upper Colorado River Basin Compact, 63
Stat. 31 (1949); and Klamath River Basin Compact, 71 Stat. 497
(1957). The New York Harbor Compact and Ohio River Compact
provide the best examples of broad regulatory powers with fully ade-
quate flexibility. The Costilla Creek Compact may actually be a
dubious example because the compact is not clear as to the voting
procedure on obligatory measures (a unanimous vote is required for
internal operation), but if the requirement is a unanimous one then
the efficacy of the other laudable aspects of the compact would be
dissipated.
196. La Plata River Compact, 43 Stat. 796 (1925); South Platte River
Compact, 44 Stat. 195 (1926); Rio Grande Compact, 53 Stat. 785
(1939); Pecos River Compact, 63 Stat. 159 (1949); and Canadian
River Compact, 66 Stat. 74 (1952).
197. Costilla Creek Compact, 60 Stat. 246 (1946).
198. New York Harbor (Tri-State) Interstate Sanitation Compact, 49.Stat.
932 (1935); Red River of the North Compact, 52 Stat. 150 (1938);
Potomac River Compact, 54 Stat. 748 (1940); Ohio River Valley
Water Sanitation Compact, 54 Stat. 752 (1940); New England Inter-
state Water Pollution Control Compact, 61 Stat. 682 (1947); and
Connecticut River Compact, 67 Stat. 45 (1953).
199. Upper Colorado River Basin Compact, 63 Stat. 31 (1949).
200. Arkansas River Compact, 63 Stat. 145 (1949).
201. Sabine River Compact, 68 Stat. 690 (1954).
202. Colorado River Compact, 45 Stat. 1057 (1928); Republican River Com-
pact, 57 Stat. 86 (1943); and Belle Fourche River Compact, 58 Stat.
94 (1944).








WATER RESOURCES I


majority vote, 203 although one compact provides in effect a two step
procedure of arbitration which is tantamount to a majority vote. 204
The weakness in voting procedure which manifests itself in most of
the compacts must necessarily cut across all other aspects of the
compact and tend to undermine the efficacy of any regulatory powers
Because of the important national interest usually involved in com-
pacts concerning interstate waters, it is helpful for the compacts to
provide for some type of federal participation as an aid to adminis-
tration, and it is noteworthy that the majority of water compacts do
have some type of federal participation. 205

VII. CONCLUSION
Most interstate cooperation in handling regional water problems
requires continuing regulation; these matters are rarely capable of
a single, definitive settlement by the terms of the compact itself.
Therefore, the creation of an administrative body is required, en-
dowed with adequate powers, to obtain maximum regional utility
from the water resources. Where a final solution to an interstate
dispute is obtainable in the agreement, as in boundary controver-
sies, the interstate compacts have been a great success. But in
regulatory operations the existing water compacts leave something
to be desired.
The preceding, rather hypercritical, evaluation of interstate
water compacts reveals that the present compacts suffer in differ-
ent amounts from lack of appropriate enforcement and adjudicatory
powers, from interminable negotiating difficulties, from lack of
flexibility, and from inadequate regulatory machinery. Of these de-
ficiencies only that of negotiating the interstate agreement inheres
in the compact device as a serious legal impediment. From this
shortcoming, though, all of the other compact debilities proceed. If

203. Snake River Compact, 64 Stat. 29 (1950); and Yellowstone River Com-
pact, 65 Stat. 663 (1951).
204. Klamath River Basin Compact, 71 Stat. 497 (1957).
205. Nine of the compacts have no federal participation. These compacts
are: La Plata River, 43 Stat. 796 (1925); South Platte River, 44
Stat. 195 (1926); New York Harbor (Tri-State) Interstate Sanitation,
49 Stat. 932 (1935); Red River of the North, 52 Stat. 150 (1938);
Republican River, 57 Stat. 86 (1943)-but federal collaboration; Belle
Fourche River, 58 Stat. 94 (1944)-but federal collaboration; Costilla
Creek, 60 Stat. 246 (1946)-but federal collaboration; New England
Interstate Water Pollution Control, 61 Stat. 682 (1947); and Connecti-
cut River, 67 Stat. 45 (1953). The remaining 12 compacts all have
some type of federal participation, ranging from a federal commission-
er without vote to a federal commissioner with equal vote and par-
ticipation with the state members.








AND THE LAW


a more efficacious method of negotiation could be effected, there is
no real legal obstacle in conferring all appropriate regulatory, en-
forcement, and adjudicatory powers upon a compact commission with
the needed flexibility for effective operation.
To help obviate some of these difficulties the following general
recommendations are made for concluding water compacts:
1. The appointment in each state of one continuing agency which
is responsible for negotiating and concluding compacts.
2. The establishment by each state legislature of a continuing
legislative committee which is responsible for compact nego-
tiations and for sponsoring concluded agreements in the leg-
islature.
3. The appointment by each governor of a liaison official to
serve with both of the above organizations.
4. The inclusion of a federal representative in all compact ne-
gotiations.
5. The establishment of liaison with the federal government so
that expert assistance can be obtained for solving regional
problems.
6. The preparation of a standard form of agreement on certain
matters which every interstate water compact needs to be
adequate so that the negotiations need concern themselves
only with peculiar regional problems.
However, all of these proposals require conscientious, good faith
efforts by all of the states to seek the good, not just of each state,
but of the region and the nation. There is no ready solution for
obtaining this spirit of dedicated state cooperation. No pretense at
solution of that difficulty is made in this paper.
It seems highly desirable, if not absolutely essential, that any
effective interstate water compact contain the following provisions:
1. Establishing a compact commission (preferably limited to
one commissioner from each state).
2. Conferring adequate enforcement, adjudicatory, and regula-
tory powers on the commission so that there is continuing
supervision with coercive authority (what are considered ade-
quate enforcement and adjudicatory powers has been dis-
cussed previously).
3. Providing a majority method voting procedure.
4. Providing adequate financing either through the states or
through the operations of the commission.
5. Including a federal representative on the commission, pref-
erably with equal rights of the state commissioners.








WATER RESOURCES


Where the problem subject to solution is not so complex as to re-
quire all of these provisions, it would be an easy matter to incor-
porate only the needed provisions. General provisions of this na-
ture would probably be susceptible to some standardized forms which
would aid in the negotiation stage.
Despite its many handicaps, the interstate water compacts have
performed a worthwhile job. 206 The increasing use of the compact
device by the states in more recent times must indicate that some
satisfactory results are being accomplished. 207 The Task Force
Report in briefly summarizing the work of some five water compact
commissions finds that they have performed quite well. 208
Although it is never an entirely satisfactory answer to point out
that other available means are even less satisfactory than the meth-
od proposed, these circumstances seem persuasive with regard to
interstate water compacts. Supreme Court litigation and congres-
sional legislation seem to suffer from even greater infirmities than
does the compact method. From the positive side, the compact de-
vice possesses the potential to remedy the present defects and per-
form all of the functions required. This is not to say that the com-
pact device is to be used in exclusion of federal action. Both are
really essential and ought to complement one another. Yet, the
compact device provides the opportunity for the states to exercise
primary responsibility in regulating water resources. The question
remains as to whether the states can rise to the challenge and ef-
fectively utilize the means available.











206. "Despite these deficiencies the interstate compact is one of the few
available means of unifying and making binding State response ability
for dealing with interstate problems, many of which cannot or per-
haps should not be dealt with by the Federal Government." 3 Task
Force Report on Water Resources, p. 1702 (1955). Zimmermann
and Wendell, The Interstate Compact Since 1925, c. VII (1951).
207. See Zimmermann and Wendell, supra note 206.
208. See 3 Task Force Report on Water Resources, pp. 1711-1714
(1955); also gee the discussion by Zimmermann and Wendell, supra
note 206.


I




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