Page images
PDF
EPUB

Over this same time period the Supreme Court was framing a national policy with respect to interstate waters. The Founding Fathers had anticipated that a variety of regional disputes might arise within the newly-created federal system that would be beyond the power of a single state to deal with and yet not within what were then thought to be relatively narrow powers which the states had delegated to the national Congress. Hence the Constitution provided two mechanisms for dealing with them. Article 1, section 10, clause 3 authorized the continued use of interstate agreements or "compacts" (a device which had been liberally used in Colonial America to resolve boundary disputes), subject only to the requirement of Congressional consent to assure protection of any national interest that might be implicated in such agreements.

The second mechanism for the settlement of interstate disputes was an original action in the Supreme Court provided for in article III, section 2. In a number of decisions the Court progressively developed the guiding principle that it would apply in such cases, declaring that each state in an interstate river basin is entitled to an “equitable share" of the river, determined by the Court's evaluation of a number of factors relevant to an "equitable apportionment." See, e.g., Nebraska v. Wyoming, 325 U.S. 589, 618 (1945). Í recently treated the evolution of the Court's equitable apportionment doctrine in a paper I delivered at the American Bar Association's Annual Water Law Conference in San Diego last February that I would like to submit for the hearing record.

It was not until the Supreme Court's 1963 decision in Arizona v. California, 373 U.S. 546, that a third avenue for the solution of interstate water disputes was discovered, namely Congressional exercise of its authority under the Commerce Clause. In that case the Court concluded that Congress had in the Boulder Canyon Project Act of 1928 effected a "statutory apportionment" of the mainstream of the lower Colorado River among California, Arizona, and Nevada by conferring upon the Secretary of the Interior, as part of his authority to manage Hoover Dam, the power to make a "contractual allocation" of those waters in the event that the three states were unable to agree to a compact. One can only speculate about whether certain Corps of Engineers water supply contracts might effect a similar allocation of inter

state rivers.

Both the Bureau and the Corps have traditionally relied on state law for the acquisition of necessary water rights for their projects, the Bureau pursuant to the mandate of section 8 of the Reclamation Act and the Corps as a matter of comity. The Federal Water Power Act also requires a hydro project license applicant to acquire the water rights necessary for a proposed project under state law.

Let me digress a moment to explain that there are two basic state legal systems governing the acquisition and use of rights to water in the United States. The first is the riparian system, derived from the common law of England and applicable in most eastern and central states, which permits owners of land adjacent to rivers and other water bodies to make reasonable use of such waters on their riparian lands. The common law rule has been modified in most states by legislation requiring a permit for the exercise of such rights. The second system is the appropriation system, which developed as a matter of necessity in the arid western states. It is not dependent on ownership of riparian lands, but on the application of water to a reasonable beneficial use, and establishes priorities based generally on the principle that "first in time is first in right." In addition to these two basic state law systems, the Supreme Court has developed a body of federal law applicable to reserved federal and Indian lands in the western United States which can make significant inroads on established state created rights end programs. Similar federal and Indian water rights have not yet been held applicable in the rest of the nation. Let me turn now to a discussion of the role of interstate compacts in our federal system, and how they relate to existing state and federal water resources development and environmental protection legislation.

Article I, section 10, clause 3 of the Constitution, provides that" "No State shall, without the Consent of Congress enter into any Agreement or Compact with another State or with a foreign Power." Although the compact clause seems to mandate Congressional consent for all interstate agreements, the Supreme Court has held that consent is required only where the compact threatens to significantly impinge on national interests.10 Similarly, consent is not required prior to formal agreement, as the clause suggests, but may be evidenced either before or after agreement is reached.11 Sometimes, however, Congress has enacted legislation generally authorizing states to negotiate a compact on a particular subject matter but

10 Virginia v. Tennessee, 148 U.S. 503, 518–19 (1893); United States Steel Corp. v. Multistate Tax Commission, 434 U.S. 452 (1978).

[merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small]

es deve State mpact

ems to

2 Court ificant

r to for ore or!

islation!

t matter

[ocr errors]

was

Cas

Pr

requiring further consent to any compact resulting from such negotiations. The critical question is whether "Congress, by some positive act in relation to such agreement, [has] signified the consent of that body to its validity." 12 The traditional practice is for Congress to enact specific consent legislation approving an agreement states have reached, which may contain conditions adding to or modifying the compact and usually expressly reserves authority for Congress to revoke or amend its consent. Moreover, Congressional consent does not preclude a later Congress from enacting legislation inconsistent with the approved compact, even if the consent legislation does not preserve that right.

Although the Court has emphasized that compacts are essentially contracts, it has also held that the Congressional consent legislation also makes a compact a federal statute.13 Consequently, after Congressional approval a compact and the consent legislation supercede inconsistent state and federal laws except as otherwise provided in the compact or consent legislation. Needless to say, this dual status presents a number of significant conceptual and legal issues, such as appropriate rules of construction and choice of law, which the Court has not yet finally sorted out. The Court has 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." 14 The classic treatment of the compact clause by Harvard Law Professor (later Supreme Court Justice) Felix Frankfurter and Harvard Law School Dean James Landis described the "practical objectives" of the consent clause as follows:

66

agreements may affect the interests of States other than those parties to the agreement: the national, and not merely a regional, interest may be involved. Therefore, Congress must exercise national supervision through its power to grant or withhold consent, or to grant it under appropriate conditions. The framers thus astutely created a mechanism of legal control over affairs that are projected beyond State lines and yet may not call for, nor be capable of, national treatment. They allowed interstate adjustments but duly safeguarded the national interest." 15

Congress has approved some three dozen compacts relating to water resources management. The study of interstate water compacts that I prepared for the National Water Commission in 1972 evaluated the effectiveness of existing water compacts and compared the compact mechanism to other institutional approaches to river basin management. I concluded that the chief advantage of the compact approach is its adaptability to the special, often unique needs of a particular basin. Each river basin has its distinctive physical and political characteristics that demand specific legal approaches. Since a compact must be the product of agreement among the states, it can be shaped as the states desire, in accordance with their particular regional philosophy of appropriate intergovernmental relations, rather than being imposed by Congress or the Supreme Court. It can be targeted on a single problem, such as water allocation, or may seek more comprehensive, multipurpose goals that permit flexible management of the compact allocations. Similarly, it may create a permanent administrative entity and endow it with such powers as the states consider appropriate to accomplish their regional objectives, provided they are not inconsistent with broad national goals.

Beginning with the Colorado River Compact of 1922, Congress has granted its consent to about two dozen water allocation compacts, all still in effect, which purport to make an equitable apportionment of the waters of the affected interstate streams, mostly in the West. They reflect a number of different approaches, but whatever the allocation formula, existing uses and rights are usually protected. Approximately half of them provide that the allocations are to include all federal uses. With respect to the water supply estimates that formed the basis of the older compacts, time has shown many of them unreliable. Similarly, the western states entered into almost all the existing water allocation compacts before the full impact of the "reservation doctrine" of federal and Indian water rights was announced by the Supreme Court in Arizona v. California in 1963. Consequently, the estimated water requirements that were the basis of the compact allocations were probably significantly understated for those states with substantial areas of reserved federal and Indian land. Moreover, Indian tribes had no role in the negotiation or the sub

12 Green v. Biddle, 21 U.S. (8 Wheat.) 1, 86 (1823).

13 Cuyler v. Adams, 449 U.S. 433 (1981).

14 Virginia v. Tennessee, 148 U.S. 503, 517-20.

15 Frankfurter and Landis, The Compact Clause-A Study in Interstate Adjustments, 34 Yale L.J. 685, 694–95 (1925).

[merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small]
[graphic]
« PreviousContinue »