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not agree. The federal government in these situations appears to be little more than an observer, without obligation to see to the coordination of federal plans or programs in the region to the maximum extent feasible with those of the states. Obviously a compact plan for an interstate river basin is not "comprehensive" if it does not encompass federal water planning and use as an integral part of the effort, nor can it serve any meaningful function unless all interests in a basin, and particularly the federal government, are committed to carrying out their respective programs in accordance with it to the maximum extent consistent with federal law.

Against a generally unimpressive historical backdrop of interstate compact performance, the federal-interstate compact on the Delaware River emerged in 1961 to provide (1) the long-sought linkage between federal and state planning and program implementation and (2) the regional emphasis lacking in earlier compact approaches. The Delaware River Basin Compact sought to unify regional development and control in place of the duplicating, overlapping, and uncoordinated administration of some forty-three state agencies, fourteen interstate agencies, and nineteen federal agencies exercising a multiplicity of powers and duties that resulted in a splintering of authorities and responsibilities. The compact created the Delaware River Basin Commission (DRBC) and charged it to "adopt and promote uniform and coordinated policies for water conservation, control, use, and management in the basin [to] encourage the planning, development, and financing of water resources projects according to such plans and policies," and to formulate a "comprehensive plan" for the development and use of the basin's waters. It also endowed the DRBC with very broad licensing and project construction powers to aid in implementing the basin plan.

The Delaware compact embodied two significant innovations. First, it established a structure for meaningful comprehensive planning by including the United State as a signatory party and imposing significant coordinating constraints on the states and the federal government. Second, it ensured a more regionally oriented approach through a generous grant of powers to the DRBC and provided for the injection of a broader perspective of basin problems through the federal government's active participation in the compact program.

To ensure that all projects in the basin are in general conformity with the comprehensive plan developed by the DRBC, the compact confers a "licensing" power on the DRBC. It provides that no project having a substantial effect on the water resources of the basin shall be undertaken unless it has been approved by the Commission." The commission, in turn, must approve any project that it finds "would not substantially impair or conflict with the comprehensive plan," and a project not meeting that standard may be either disapproved or approved subject to modification to make it consistent with the plan.

With respect to federal projects, a reservation in the Congressional consent legislation provides that "whenever a comprehensive plan, or any part or revision thereof, has been adopted with the concurrence of the member appointed by the president, the exercise of any powers conferred by law on any officer, agency, or instrumentality of the United States with regard to water and related land resources in the Delaware River Basin shall not substantially conflict with any such portion of such comprehensive plan." Because the content of the comprehensive plan is determined by majority vote of the DRBC, on which the federal government has a single vote with each of the states, there is an escape valve in the consent legislation which provides that the federal government need not shape its projects to a plan with which it is not in agreement and authorizes the president to “suspend, modify or delete” any provision of the comprehensive plan affecting federal interests when the president "shall find . . . that the national interest so requires."

The DRBC must exercise its powers so as "to preserve and utilize the functions, powers and duties of existing offices and agencies of government to the extent not inconsistent with the compact . . to the fullest extent it finds feasible and advantageous." Thus, the compact preserves each state's authority to the maximum extent possible if compatible with the compact's objectives.

One of the unique features of the compact is the DRBC's power to allocate the waters of the basin among the signatory states in accordance with the Supreme Court's doctrine of equitable apportionment, a provision designed as an alternative to (1) what was considered to be the relatively inflexible apportionments made by traditional water allocation compacts and (2) litigation in the Supreme Court. However, this allocation power, which permits adaptive management of the Basin, as well as all other DRBC authority, is not allowed to affect the rights and obligations of the states under a 1954 Supreme Court decree, other than by unanimous agreement. Supplementing the DRBC's allocation power is its authority to regulate withdrawals and diversions of surface waters and groundwaters in certain situations.

In theory and in practice the Delaware compact has shown that it is possible to forge the disparate federal, state, and local interests into a comprehensive, cooperative, and consciously directed regional water resources development program. I agree with the National Water Commission's recommendation that the federal-interstate compact approach on the Delaware justifies serious and thoughtful consideration by other regions.

What is needed is a congressionally approved and instituted regional arrangement that mandates cooperative and coordinated action by federal agencies that will be in conformity with the regional views of the affected basin states to the maximum extent practicable and consistent with federal legislation. Where the United States is a signatory party to a compact and substantially bound by it the same as each of the states, to the extent constitutionally permissible, the federal representative can serve as the focal point for all federal interests, whether consumptive use rights, instream and other environmental values, water quality control, flood control, project construction and licensing, and the like. That kind of arrangement would compel the coordination and accommodation of comprehensive river basin development that is currently lacking in most existing compacts. However, consistent with the purpose of the compact clause, the federal government must have the right to assert its paramount authority to protect national prerogatives in appropriate situations. That is the unique pattern of the Delaware, Susquehanna, ACT and ACF compacts. More importantly, perhaps, in that the federal agencies must be committed to the compact objectives. Unfortunately, a recent study of the DRBC's track record over the past 40 years reports that in recent years the federal representative and the agencies have not taken their obligations seriously, to the point that Congress zeroed out its long standing financial support of that position a few years ago. I hope that a similar fate will not befall the federal commissioner under the ACT and ACF compacts.

Let me close with several comments on the ACT and ACF compacts.

First, they appear to be compacts to enter into future agreements establishing allocation formulas equitably apportioning the waters of the affected rivers among the party states. Although Congress has approved similar "negotiating" compacts on a number of occasions, it has always required that the resulting compacts containing the critical allocation formulas be submitted to Congress for approval. The ACT and ACF compacts, however, permit the resulting allocation formulas to be approved by the federal commissioner. Although I am not a constitutional law expert, I have some questions about whether Congress may lawfully delegate its important legislative responsibilities under the compact clause in that fashion, particularly when the only criteria which the federal commissioner must apply is whether the allocation formula violates federal law.

Second, although the United States is a signatory to the compacts, which has only been done previously in the Delaware and Susquehanna compacts, unlike those two compacts it is not a voting member of the compact commissions that are to shape and administer the all important allocation formulas which all federal water resource development and environmental protection programs are to respect to the maximum extent practicable consistent with federal law. Although I believe that the same result should flow from the approved compacts status as federal statutes without the United States being a party to the compacts, Congress obviously intended to strengthen that obligation by providing for member status by the United States. Third, the two compacts expressly supercede inconsistent state laws, except for those relating to water quality and establishing riparian water rights, but 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 approved comprehensive plan, but may escape that responsibility where “the national interest so requires," so Article VII(b) of the ACT and ACF compacts requires federal agencies "to the maximum extent practicable to exercise their powers, authority, and discretion in a manner consistent with the allocation formula so long as [such] exercise . . is not in conflict with federal law" and Article X reiterates that those agencies "shall, to the maximum extent practicable, enforce, implement or administer [federal] laws in furtherance of the purposes of this compact and the allocation formula adopted by the Commission insofar as such actions are not in conflict with applicable federal laws." In each case the Congressional objective is the same the federal agencies shall implement their programs consistent with the compact commission's regional program for water management or allocation unless irreconcilably in conflict with national pro

grams.

That concludes my statement, Mr. Chairman. I will be pleased to attempt to an

Mr. BARR. Mr. Sherk.

STATEMENT OF GEORGE WILLIAM SHERK, ESQ., ATTORNEY AT LAW

Mr. SHERK. Thank you, Mr. Chairman, for the invitation this morning

Mr. BARR. You might just pull the whole contraption a little bit closer. Thank you.

Mr. SHERK. This seems better.

When Dickens wrote Bleak House, he could very well have had in mind the litigation between Kansas and Colorado over the Arkansas River. The first papers in that case were filed in the summer of 1901. It is still before the Supreme Court. It turned a hundred years old this year. And as the Chief Justice noted, these two States can't even agree on how to pronounce the river. It is the Arkansas in Colorado, but it is the Ar-kansas in Kansas.

Litigation is not a means to resolve interstate water conflicts, and it has involved all of your States. North Carolina, for example, spent decades in conflict with the City of Virginia Beach over diversions from Lake Gaston to provide a water supply for the tidewater region.

Pennsylvania spent decades in litigation with New York, New Jersey and Delaware over the waters of the Delaware River. That litigation fortunately led to the groundbreaking Delaware River compact that Mr. Muys has so capably summarized, the importance of which can't be overstated in providing a model for a Federal interstate compact. It is clear to me that that compact informed the process by which the existing ACF and ACT compacts came into being.

That said, it is important to look at the terms of the compacts in the context of language authorizing the States to develop an allocation formula agreement. The language in the compacts relating to allocation formula clearly relates to some sort of a mathematical computation, a table, a formula, a percentage of stream flow approach. The term "allocation formula agreement," however, is not defined, the results of which is that the allocation formula agreements that have been developed to date go far beyond merely a quantification of relative percentages of entitlements to water in the shared river basins.

In going beyond that, the allocation formula agreements, the drafts of the allocation formula agreements—and so there is no uncertainty, there is a draft for the ACT-the draft on the ACF has been withdrawn. But those drafts went far beyond any mere allocation of water.

Because they went so far beyond that, they have raised serious legal issues relating to Federal/State relations, relating to issues arising under State water law and relating to procedures that, unfortunately, were not resolved when the compact was negotiated.

In terms of the Federalism issues, the States seem to have made a very fundamental mistake in assuming that the physical availability of water equated with the legal availability of water. Simply because there is water in the headwaters of any of the rivers that are involved here does not mean that there is an entitlement to use

it because of the number of Federal statutes that affect the management and allocation of water, as Mr. Muys has pointed out.

We have essentially gotten to the point where States can exercise primacy over the management and allocation of water resources only to the extent that that water is not needed to fulfill the requirements of Federal purposes. Unfortunately, that quantification has never occurred. So the States are trying to allocate a pie, the diameter of which is unknown. The result is going to be ongoing uncertainty and is probably reflected in the language of the allocation agreements relating to litigation that is going to follow ratification of the agreement.

The allocation agreements by their terms attempt to change the authorized purposes of Federal projects. In the ACT, for example, Allatoona dam and lake and Carters dam and lake are changed from multipurpose Federal projects to water supply projects for the City of Atlanta. The States do not have the authority to do that. There is language in the allocation agreement suggesting that congressional ratification merely of reallocating storage will be sufficient. That is incorrect.

The number of conflicts with Federal law go far beyond merely allocation of storage in Allatoona and Carters. In terms of the water law issues that are raised, the current draft limits Georgia's diversion to, quote, reasonable use, close quote, under Georgia water law, which is roughly similar to-I believe it was Chief Justice Potter Stewart's definition of obscenity when he said he didn't he couldn't define it, but he knew it when he saw it. The concept of reasonable use, you can't define. You know it when you see it. But it is an ambiguous, amorphous concept that changes over time.

The process by which the commissioner has to make a concurrence/nonconcurrence decision assumes that the effects of the allocation can be determined. It was the scientific process the Speaker made reference to. A limitation that is not quantifiable is not anything else. There is no way to know what the impacts are going to be.

The final issue that has emerged is procedural, and this involves the concurrence/nonconcurrence process. Under the compacts, the Federal Commissioner is cast in the role of either concurring with the allocation formula agreement or of nonconcurring or of doing nothing, in which case concurrence is assumed.

The compact is silent-both of the compacts are silent as to who bears the burden of persuasion when that demonstration has to be made. Are the States obligated to demonstrate that the allocation agreement is consistent with Federal law, or is the Federal Commissioner put in the position of having to prove the negative? Does the Federal Commissioner have to prove that it is inconsistent with Federal law before he can nonconcur?

There has been a great deal of confusion over this. It is one of the issues that may fall to this Committee to resolve. All of the issues that have arisen are within this Committee's jurisdiction.

There has been an ongoing call in the literature over the past 10 to 15 years for greater congressional involvement. Because of the number of Federal statutes, the States simply cannot resolve these

jurisdiction to consider and that I believe this Committee should consider if the existing process on the ACF and ACT continues to produce the fruit that it has produced to date.

I thank the Committee for its attention, and I will be happy to answer any questions.

Mr. BARR. Thank you very much.

[The prepared statement of Mr. Sherk follows:]

PREPARED STATEMENT OF GEORGE WILLIAM SHERK

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Good morning Mr. Chairman and Members of the Subcommittee. My name is George William Sherk. I am here this morning representing LaGrange and Troup County, Georgia. I would like to thank the Chairman and Members of the Subcommittee for allowing me to express the concerns of my clients regarding a number of issues that have arisen during implementation by the states of Alabama, Florida and Georgia of the Alabama-Coosa-Tallapoosa River Basin Compact' and the Apalachicola Chattahoochee Flint River Basin Compact.2

In order to understand our concerns, it is necessary to understand that LaGrange and Troup County, Georgia are located proximate to West Point Lake on the Chattahoochee River downstream of the Atlanta metropolitan area. With regard to the management and allocation of water resources within the state of Georgia, the Atlanta metropolitan area is the proverbial eight hundred pound gorilla. Consequently, virtually the only protection that the downstream areas have against Atlanta's rapacious thirst is the protection afforded by a variety of federal laws and regulations.

It is our concern regarding attempts by the states to circumvent these requirements that brings us here today. Both the ACF and the ACT Compacts authorized the states to negotiate allocation formula agreements. Draft allocation agreements have been released for both the ACF3 and the ACT river basins. These draft agreements raise a number of issues regarding compliance with otherwise applicable federal laws and regulations.

'Public Law No. 105-105, 111 Statutes at Large 2233 (20 November 1997) (hereinafter cited as the "ACT Compact").

1 Public Law No. 105-104, 111 Statutes at Large 2219 (20 November 1997) (hereinafter cited as the "ACF Compact").

3

ACF Allocation Formula Agreement (25 May 2001) (hereinafter cited as the "ACF Allocation Agreement"). This proposed allocation agreement was withdrawn subsequently. It is included in this discussion because of the issues raised in the proposed agreement. ACT Allocation Formula Agreement (6 July 2001) (hereinafter cited as the "ACT Allocation Agreement").

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