sources-will be left helplessly walking the sidelines or, perhaps worse, pitted against each other.

Without the cooperative framework that the Compacts foster, the alternative is an inadequate piecemeal arrangement. Although eventually each issue would no doubt be addressed, the results would likely range. At best, short term needs would divert limited technical and management assets away from long range goals essential to stable growth and protection of the natural systems. Or, at the worst, short term issues would grow to hold such prominence that widely embraced long-term resource goals would never receive attention or enjoy a common framework for debate. Long term stability and ecosystem health would suffer. Avoiding that result is the intrinsic value of a Compact-based solution.

I believe all involved parties also recognize the precedence of this process, not just for the Southeast, but for the entire American East and beyond. We must all work together, taking advantage of this hard won opportunity, to provide the vital leadership to show how shared resources and shared concerns ought to be managed. The Compacts provide the occasion to create a unique template where natural resources issues are addressed on a comprehensive level, involving all interested parties in proactive basinwide management. Success here will challenge and guide other regions to do the same.

Although I fully recognize that the undertaking is formidable and that, under the Compact, consensus is essential at the initial State "agreement" (Article VII(a)) stage, I have continued to underscore that the States do not face the task alone. The Federal team has continued to offer assistance to the States in public settings, in informational discussions, providing technical evaluation, affording technical assistance, offering reactions to their evolving concepts, and, more recently-because I thought the time had been reached-setting forth a more active federal role. Of course, the formulative stage of the allocation formula is addressed primarily in Article VII (a) of the Compacts. The purpose is simple: The parties are to develop an allocation formula for equitably apportioning the surface waters of the ACF [ACT] Basin among the states; and, they are to do so, while protecting the water quality, ecology and biodiversity of the ACF [ACT], as provided in the Clean Water Act, 33 U.S.C. ((1251 et seq., the Endangered Species Act, 16 U.S.C. {{1532, et seq., the Rivers and Harbors Act of 1899, 33 U.S.C. {{401 et seq., and other applicable federal laws

Article VII (a) provides that, when an allocation formula for a basin is unanimously approved by the State Commissioners, an “agreement" among the States arises. That allocation formula agreement becomes effective upon receipt by the Commission of a letter of concurrence from the Federal Commissioner or, in the occasion of the Federal Commissioner electing not to send a letter of nonconcurrence within 255 days. However, if a letter of nonconcurrence from the Federal Commissioner is sent, and all parties are not able to renegotiate a solution to federal concerns, then Article VIII(a)(4) provides that the Basin's Compact will terminate. Of course, as Federal Commissioner, I want to do everything I can, consistent with the Compacts, to avoid that result. To facilitate a resolution of differences, the Compacts provide that my reasons for nonconcurrence are to be set forth specifically and to be based solely upon Federal law.

Thus, the Compacts recognize-appropriately, I think-the sovereignty of the States involved and their legitimate interests and at the same time emphasize the Federal Government's-and the Congress'-interest in assuring that concerns of Federal law are addressed. In fact, they include a number of "Reservations" addedin important measure as a result of Former Speaker Gingrich's efforts to assure that Federal interests were taken into consideration.

Article XI of the Compacts recognizes "the importance and necessity of public participation in activities of the Commission, including the development and adoption of the initial allocation formula and any modification thereto❞ and provides that the Commission will adopt procedures ensuring this public participation. The Commission Operating Guidelines have identified thresholds for that participation. Assuring the public's participation, as provided for in the Compacts, has been a constant theme for me as Federal Commissioner. Furthermore, I have consistently encouraged the States to provide additional opportunities for public participation. Indeed, even though I was a strong advocate for mediation in the summer of 2000 to avert what appeared to be an alarming risk of the collapse of the negotiations, at the proper time I was an equally strong advocate in encouraging the States to return to an inclusive and public forum.

The Compacts' "Reservations" (Section 4) include provision for Federal agency representatives to attend Commission meetings and, at the request of the Federal Commissioner, to participate in technical committee meetings "at which the basis or terms and conditions of the allocation formula or modifications to the allocation for

mula are to be discussed or negotiated." Section 5 of the Compacts authorize Federal agencies to enter cooperative relationships with the Commission, to conduct studies and monitoring programs in cooperation with the Commission, and to furnish assistance to the Federal Commissioner. In the service of these provisions, the Federal agencies have had a strong commitment to providing technical assistance to the Commission, its Committee, and State staffs.

We have provided comments on State proposals in a variety of formats. We have provided written letters from the various Federal agencies raising specific questions in response to State proposals. We have encouraged question and answer sessions with the States and I was particularly pleased that in July, 2001, the States sponsored a public dialogue among staffs of the State and Federal agencies with regard to the then current ACT (July 6, 2001) and ACF (May 25, 2001) draft allocation proposals. Thereafter, we provided further written questions to the States. The fact that the public attended and listened to the July 9 dialogue was, I believe, a significant contribution to the general understanding of the complexity of the issues confronting the States at this stage of the compact processes.

As I mentioned earlier, the Compacts make clear both their respect for the States and their sovereignty and the necessity of attention to Federal concerns. I have tried to keep this mutual respect in mind, along with concern for public access, as I have considered ways to assist the States in their initial formula development. In that regard, and because I believed the States have reached a point in time in the development of their formula concepts that would make it useful, I have now offered a more "active" Federal involvement to the States. Although technical expertise has played a crucial role in the Compact process up to now (and will continue to play that role), the Federal agencies also have a program perspective that offers additional benefits to the dialogue. In the course of managing Federal programs, the agencies are responsible for recognizing and addressing a variety of issues-key areas of interest. In technical expertise discussions, the States might see the results of these key areas of interest but might not see, or have an opportunity to understand fully, why the areas are significant to the federal agencies. Thus, in November, I proposed that the States explore basinwide development through the eyes of Federal agencies and the key areas of interest that would guide their own thoughts if asked to craft such a formula. Although not an exhaustive list, I identified six areas of key interest to Federal agencies.

Those areas were: Adaptive Management; Public Participation in Implementation; Compensation for Impacts on Hydropower Capabilities; Congressional Reauthorization; and, Operational Practicability and Flow and Reservoir Levels. I envisioned the Federal agencies, working with the State teams, as outlining why and how these six items are key issues. By looking at these topics through our eyes, I hoped that the States would better understand the Federal perspective. Even more, I hoped that, in looking at the challenge through the eyes of another, the States might find new ways to close the few remaining gaps among themselves-gaps which may seem significant if viewed only from the perspective of today but which may be workable from a broader perspective.

Our Federal team was very pleased that the ACT States responded immediately and favorably to a more active federal role. Those States agreed to hold a public session where the Federal agencies would outline the legal and program framework of these six key areas and, indeed, offer their “current impressions" with respect to possible language suggestions. Of course, we were careful to make clear that we are not prejudging the ultimate concurrence process under Article VII(a) and the ACT States respected that. The response was tangible evidence of their commitment, as well as our own, toward achieving the important goal set by the Compacts.

The public session in Montgomery, Alabama, on December 13 was warmly received by all involved-the ACT States (Alabama and Georgia), the Federal agency representatives, and the public. I believe that it was apparent to all present at that meeting that the results were very favorable. The constructive dialogue among Federal and State participants, the quality of the comments, and the focus of the questions last week were excellent. Further evidence of progress was that the ACT States and the Federal team agreed that we would continue to work together on these key issues and that we would schedule additional meetings in the near future. Our Federal team also noted that, based on its current impressions, if these key areas of Federal interest were resolved through public dialogue the ACT proposal would be promising.

I commend all of the States, both the ACT States and the ACF States (Alabama, Florida, and Georgia), for their hard work and progress to date. I also commend the Congress for the foresight to authorize this process through these Compacts. With the effort to date, I can compliment Alabama's expressed commitment to seek an

extension of the ACT Compact and I strongly encourage the other States to consider the same both for the ACT and for the ACF.

An extension of both Compacts would provide the opportunity for meetings of a similar nature with Alabama, Florida, and Georgia representatives on the ACF Basin. I feel so strongly in this regard, in fact, that I urged the ACF States by letter on December 14, 2001 to do just that. Our six key areas of federal interest are equally applicable to that Basin and we have urged and will continue to urge these ACF States to join with us in this new effort. Agreeing on extensions would avoid the loss of the important progress already made.

Of course, formula development and adoption is the first stage. It will, no doubt, involve consideration of Congressional reauthorization and action by this body. But, once that has occurred (and it will, I believe, if we all stay committed and focused), then our Region will have laid a cornerstone for its prosperity and stability for the next 30 to 50 years while protecting indefinitely the integrity of these priceless natural systems. The only way I see to achieve this extraordinarily important goal is to have a cooperative comprehensive plan framed to ensure continued wise stewardship. This is a process that is deserving of every chance we can give it to succeed. We must all work together to foster this attitude and protect the process from impatience, political expediency, and a rush towards litigation.

Mr. BARR. Mr. Muys, if you have an opening statement, we would be pleased to receive it at this time.

STATEMENT OF JEROME C. MUYS, ESQ., PRESIDENT, MUYS & ASSOCIATES

Mr. MUYS. I would like to submit my statement for the record

Mr. BARR. Make sure that that is on and you pull it relatively close.

Mr. MUYS. Thank you.

I was pleased to have been asked to provide some background information for the Subcommittee on water resources development on interstate river systems for two reasons.

I have long been an advocate of the use of interstate compacts to resolve regional water disputes ever since I did a study on interstate water compacts for the National Water Commission in 1972. Secondly, I have tried to be an advocate for avoiding litigation, because I have been part of the 50-year struggle on the Colorado River that Speaker Gingrich mentioned at least 40 of those 50 years, and we are still struggling. We just had meetings last week trying to resolve the last Indian water rights issue.

But, in any event, litigation is not the answer. That is the message I try to convey whenever I can.

As far as Federal/State roles and interstate basins, the Supreme Court has long held that paramount authority—or predominant authority rests with the States, subject to the overriding authority of the Federal Government under the Constitution to develop the navigable waters for commerce and other purposes and to protect Federal property.

Of course, in the intervening years, the expansion of the commerce and property clauses led to a number of major Federal programs for water resource development-the reclamation program in the West administered by the Bureau of Reclamation, the Corps of Engineers' flood control program throughout the Nation, the Federal Energy Regulatory's licensing authority over hydroelectric projects on all streams over which the Federal Government has jurisdiction that are on Federal lands.

In addition to water supply, flood control and power, recreations later have been added to the purposes served by Federal dams as well as environmental protection and right-of-ways. Unfortunately, over the years, as these programs progressed, the environmental values of the streams were overlooked, along with the right of Native Americans throughout the Nation.

In any event, we are faced with a situation now where we had for a number of years this array of Federal programs sometimes clashing with similar programs of lesser nature promoted by the States, and in those disputes, as required by the supremacy clause of the Constitution, Federal law must necessarily prevail in cases of irreconcilable conflict.

Now, as to compacts, the Founding Fathers recognized that there would be regional problems that would be beyond the power of individual States to deal with but not within what were then thought to be the rather narrow powers delegated by the States to Congress. So the compact clause picked up the use of interstate agreements from the Articles of Confederation and just added the requirement that there must be congressional consent to these interstate agreements to protect the national interests and the other interests of other States in the Nation.

The second mechanism for dealing with interstate disputes was an action in the original jurisdiction of the Supreme Court, as we have talked about, and over the years the courts developed the dominant principle that each State in an interstate river basin is entitled to an equitable share of the resources of that river, and it makes that determination based on its evaluation of a number of factors relevant to what it calls an equitable apportionment.

It wasn't until 1963 in the court's decision, Arizona against California, that it discovered a third way of resolving interstate water disputes, namely congressional exercise of its commerce clause power to make its own allocation of the waters of an interstate stream. That has happened only on the lower Colorado and about 10 years ago on the Truckee interstate-Truckee River out in Nevada and California.

The compact clause requires the consent of Congress on its face for States to enter into an agreement, but the Court has held that consent to negotiate is not required prior to formal agreement, as it suggests, but that it must-the traditional practice for Congress is to enact specific consent legislation after the States have reached agreement, and in doing so it may add conditions modifying the compact or reserving--and usually reserving authority for Congress to revoke or amend its consent, although the Court has said you don't have-Congress doesn't have to expressly do it. It is implied. Although the Court has emphasized that compacts are essentially contracts, it has also held that the congressional legislation also makes a compact a Federal statute that supersedes inconsistent Federal and State law.

Now, the Court characterized the constitutional consent requirement as designed to guard against, "The formation of any combination tending to the increase of potential power in the States, which may encroach upon or interfere with the just supremacy of the United States." And the leading legal analysis of the compact

agreements between certain States may affect the interest of other States or other national and not merely regional interests.

Beginning with the Colorado River compact of 1922, Congress has approved some two dozen water allocation compacts which make an equitable apportionment of the waters of the interstate basin under a variety of allocation formulas.

Let me say, Mr. Chairman, my study for the National Water Commission led me to conclude and the National Water Commission to endorse the Federal interstate compact approach that has been in effect since 1961 on the Delaware River in Mr. Gekas' State, Pennsylvania, New Jersey, New York and Delaware. That model is one, it seems to me, looking at the ACT and ACF compacts, is one that was followed-tried to be followed in the two compacts under consideration here.

There is a similarity between them and particularly the emphasis in both compacts that, with the United States being a signatory party to those compacts, it is essential that the Federal agencies conform their activities to the maximum extent practicable and not in conflict with Federal law to the regional program that the States have adopted.

Let me just close by saying that the make a few comments on the ACT and ACF compacts with which I have just recently become familiar.

First, they appear to me to be compacts to enter into compacts. The 1997 compacts were not the end of the game. It was essentially an authorization to negotiate a compact, because it is the critical water allocation formulas that we are concerned about here, what the States are doing in dividing up the waters.

Although Congress has sometimes approved similar negotiating compacts, it has always required the resulting allocation formula to be brought back to it for congressional consent. The ACT and ACF compacts permit the resulting allocation formulas to be approved by the Federal Commissioner, and I personally question whether Congress may constitutionally delegate its important legislative responsibilities under compact clause in that fashion.

As I looked briefly at the draft agreement under the ACT compact, it seems to me that that draft agreement is the compact that ought to be coming back at some point for congressional action, because that is where all the meat of what is going to happen in the basin is contained.

Secondly, unlike the Delaware compact, you know, on these two compacts, although the Federal Government is a signatory party, it has no voting rights on the commission that shapes and administers all the important allocation formulas, which the Federal agencies are mandated to respect.

Third, the two compacts expressly supersede inconsistent State laws, except for those relating to water quality and establishing riparian water rights, but they disclaim any intent to repeal, modify or amend any Federal law.

Finally, just as Federal agencies in the Delaware Basin must exercise their powers so as not to substantially conflict with the comprehensive plan that that interstate commission develops, so the two compacts here require the Federal agencies, "To the maximum extent practicable to exercise their powers, authority and discretion