Interstate Water Compacts

Joseph F. Zimmerman

Description

Long taken for granted, water resources are rapidly becoming a contentious issue within American politics. Continuing population growth and rapid development, coupled with environmental events such as droughts, have led to increasing water shortages in sections of the nation. In Interstate Water Compacts author Joseph F. Zimmerman highlights the growing importance of water issues within the United States and a device that has been instrumental in facilitating interstate cooperation to solve water-related problems: the interstate compact.

This groundbreaking work is the first to devote itself exclusively to interstate and federal-interstate compacts pertaining to controversies including the abatement of water pollution, apportionment of river waters, economic development, flood control, inland fisheries, marine fisheries, and restoration to rivers of anadromous fish, such as salmon and shad. The process for entering into interstate and federal-interstate compacts is explained in detail, as is the exercise of original jurisdiction by the US Supreme Court to resolve intractable interstate controversies involving interpretation of provisions of compacts, water apportionment, and water pollution abatement. Zimmerman concludes by calling for the President, Congress, governors, state legislatures, and local governments to devote more attention and resources to finding solutions for water-related problems.
Preface
Acknowledgments

1. The Importance of Water

2. The Compact Device

3. Water Allocation Compact

4. Development, Flood Control, and Pollution Abatement

5. The Supreme Court’s Original Jurisdiction

6. Interstate Compact Controversies

7. A Water Action Plan

Appendix A: Interstate Compacts Granted Consent of Congress
Appendix B: Federal Interstate Compacts
Notes
Bibliography
Index

Sujets

• USA
• United States of America
• Region
• Regional
• États-Unis

Informations

• Publié par: State University of New York Press
• Date de parution: 12 octobre 2012
• Nombre de lectures: 0
• EAN13: 9781438444499
• Langue: English

Extrait

INTERSTATE WATER COMPACTS
Intergovernmental Efforts to Manage America's Water Resources
JOSEPH F. ZIMMERMAN
S TATE U NIVERSITY OF N EW Y ORK P RESS

© 2012 State University of New York
All rights reserved
Printed in the United States of America
No part of this book may be used or reproduced in any manner whatsoever without written permission. No part of this book may be stored in a retrieval system or transmitted in any form or by any means including electronic, electrostatic, magnetic tape, mechanical, photocopying, recording, or otherwise without the prior permission in writing of the publisher.
For information, contact State University of New York Press, Albany, NY www.sunypress.edu
Production, Laurie Searl
Marketing, Fran Keneston
Library of Congress Cataloging-in-Publication Data
Zimmerman, Joseph Francis, 1928–
Interstate water compacts : intergovernmental efforts to manage America's water resources / Joseph F. Zimmerman.
p. cm.
Includes bibliographical references and index.
ISBN 978-1-4384-4447-5 (hardcover : alk. paper)
1. Water—Law and legislation—United States. 2. Water resources development—Law and legislation—United States. 3. Water—Government policy—United States. 4. Interstate agreements—United States. 5. Water-supply—Management. I. Title.
KF5569.Z56 2012
333.91'17—dc23
2011052139
10 9 8 7 6 5 4 3 2 1

This book is dedicated with love and appreciation to Peggy for her support
PREFACE

The importance of fresh water is highlighted by droughts in various parts of the world and in sections of the United States with a growing population and an economy heavily dependent upon fresh water. The current and future water shortages long have been recognized, but United States Government, state, and local governments have launched only limited programs to conserve water and to increase its supply.
The United States federal system over time has become more complex as the regulatory powers of the federal government increased with continuing congressional enactment of preemption statutes, including innovative ones—removing some or all powers from state and local governments in particular regulatory fields, and congressional devolution of certain powers to states. To date, there is no national water policy coordinating the activities of the national government, state governments, and local governments.
This book examines the current use and the potential use of a device authorized by the U.S. Constitution that has proven to be very versatile and capable of solving a wide variety of public problems crossing state boundaries. The device is the interstate compact that first was authorized by Article VI of the Articles of Confederation and Perpetual Union in 1781. Only one interstate compact, between Maryland and Virginia governing the Potomac River, was entered into under the articles.
Section 10 of Article I of the U.S. Constitution similarly authorizes states to enter into interstate compacts or agreements with the consent of Congress. Enactment of an interstate compact by two or more states establishes a partnership between member states. A total of 176 compacts have received the consent of Congress. Other nonpolitical compacts are in effect and do not require the consent of Congress. The versatility of the compact device in aggregating the resources of multiple governments in an innovative manner to solve multiple problems was revealed in 1961 when the Delaware River Basin Compact was enacted into law by the state legislature in each of the basin states and by Congress, and created the first of seven federal-interstate compacts. The reader should note that there are formal and informal interstate administrative agreements and federal-interstate administrative agreements relating to a variety of subjects including water. These agreements are not enacted into law by state legislatures and hence are exempt from the consent of Congress requirement for interstate compacts.
This volume is the only one devoted to interstate compacts and federal-state compacts pertaining to abatement of water pollution, apportionment of river waters, economic development, flood control, inland fisheries, marine fisheries, and the restoration to rivers of anadromous fish, such as salmon and shad, that live in fresh water and salt water. This volume also is the first one to include a list with legal citations of all interstate compacts that received the consent of Congress, and a list with legal citations of all federal-interstate compacts. Similarly, water treaties entered into by the United States with Canada, the United Mexican States, and Native American tribes are described and legal citations are provided.
The process for entering into interstate and federal-state compacts is explained in detail as is the exercise of original jurisdiction by the U.S. Supreme Court to resolve intractable interstate controversies involving interpretation of provisions of interstate compacts, water apportionment, and water pollution abatement. An important question is raised: is the U.S. Supreme Court or Congress, the political branch, better qualified to resolve interstate water controversies?
Politics is involved in the process of negotiations leading to states entering into interstate compacts and federal-state compacts, and their activities. Furthermore, interstate politics continues as questions are occasionally raised relative to interpretation of a provision(s) of a compact and the need for a compact amendment(s). The number of water-related compacts is relatively large and the politics of some compacts has a long history and is immensely complex. It is not possible for a single volume to include a detailed analysis of the politics of each compact, but it is hoped this book will stimulate research on the subject.
The concluding chapter contains a call for the President, Congress, governors, state legislatures, and local governments to devote more attention and resources to finding solution for water-related problems. Specific recommendations to solve water-related problems are directed to federal, state, and local government officers. Congress and the President are called upon to reorganize federal departments and agencies with water-related responsibilities to reduce the fragmentation of authority hampering the development and implementation of national water policies. They also are urged to initiate action to develop a comprehensive national water plan and to keep it up to date.
Congress, the political branch of government, specifically is called upon to end its general silence on the apportionment of river waters, thereby relieving the U.S. Supreme Court of the burden of invoking its original jurisdiction to resolve interstate water controversies.
States have broad authority to enter into interstate compacts subject only to the requirement of congressional consent for political compacts. National and state government officers should employ creativity to develop innovative compacts designed to solve major problems, including the growing shortage of water. An example of such a compact is the proposed Agreement Among the States to Elect the President by National Popular Vote. 1
ACKNOWLEDGMENTS

A special debt of gratitude is owed to Addie Napolitano for her expert preparation of the manuscript for publication.
ONE
THE IMPORTANCE OF WATER

Citizens, with the exception of residents of arid areas, generally have relatively little knowledge of the importance of water and its multitudinous uses. The continuing population growth in the United States, and increasing agricultural and industrial consumption of water resulted in water shortages in areas that had been blessed with an ample supply of this natural resource. The U.S. General Accounting Office (now U.S. Government Accountability Office) in 2003 noted that “while rainfall averages 30 inches annually nationwide, the average for specific areas … generally increases from west to east, from less than 1 inch in some desert areas in the Southwest to more than 60 inches in parts of the Southeast.” 1
The six-year drought in California that began in 1987 promoted numerous water conservation measures by individuals and companies, including semiconductor firms that launched a conservation program reducing by 50 percent water consumption by 2001. 2 Similarly, a California family of five in the Silicon Valley reduced its water consumption by the same percentage. The replacement of many heavy industrial firms by high technology firms also reduced industrial consumption of water. Water shortages nevertheless continue in sections of the United States, and the problem is projected to become more serious with continued growth in population and industrial activities. 3 Compounding the problem in the west of the United States is the diminished Rocky Mountains snow packs. The seriousness of the water problem was highlighted in a New York Times headline on September 28, 2010, that referred to the eleven-year drought in the Southwest: “Water Use in Southwest Heads for a Day of Reckoning.” 4 Desalination has become relatively common in parts of the world and may be adopted more widely in the United States. 5
Robert Kunzig reported that the southwest of the United States experienced droughts for centuries as revealed by tree rings, and observed “global warming could make things even uglier.” 6 Much of the development in the Southwest occurred during the twentieth century that was the wettest century during the previous one thousand years. Projections indicate a continued decline in precipitation in the Southwest with forests dying, and new dust bowls developing by the middle of the twenty-first century. 7 A 2009 study of the droughts of the 1950