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l,;..- "'-'f!'>A 000711 especially where the United States has chosen not to intervene? III. EQUITABLE APPORTIONMENT BY INTERSTATE COMPACT How Can Interstate Compacts be Infused With Watershed Protection and Managetll.el1t;"~ Obligations? . '~;/ Beginning with the Colorado River Compact of 1922, Congress has granted its constitutionally,:,>; required consent to some 26 additional water allocation compacts.16 Many of these compact$'~j~ expressly purport to effect an equitable apportionment among the signatory states. See, l?;g.t,ii< Colorado River Compact (Art. 1), Rio Grande Compact (Art. 1), Upper Colorado River Basf#,;\ Compact (Art. 1), Arkansas River Basin Compact (Art. 1). Unfortunately, compact allocatiotlSA" unlike the decrees in equitable apportionment decisions that permit their reopening in appropri<<te" situations, are frozen in time and the water supply data and other relevant factors underlying them'/,. are woefully outdated. The vast majority ofthe existing water allocation compacts in the West were~& entered into before the full impact of the "reservation doctrine" of federal and Indian water rights~::~ was announced in Arizona v. California, 373 U.S. 546, in 1963. Consequently, the estimated watet"; requirements which formed the basis of the compact allocations were probably significantly~ understated for those states with substantial reserved federal and Indian lands. Similarly, it seems) pbvious that none of them anticipated the impact of the federal environmental statutes of the last 35 years, such as the Clean Water Act and Endangered Species Act, on compact allocations and their.:" utilization. Indeed many of the allocation compacts are over 40 years old and are so environmentally. . 'outdated in many respects that it is unlikely that most of them would currently receive Congressional. consent. Consequently it would be unwise for states who are parties to many of those compacts to place unquestioning reliance on the ability to use their allocations under those compacts since . changing physical and geographic factors or use patterns, coupled with the limitation of water quality control standards under the Clean Water Act or the aquatic habitat protective provisions of the Endangered Species Act, might never permit those waters to be, put to use in the quantities or at the times contemplated. Since Congress has reserved the right to amend its required consent legislation for existing compacts, should it exercise that right in appropriate compacts to impose an express duty on each state to undertake good faith cooperative efforts toward watershed protection and management? Should it do so in consenting to future compacts or amendments to existing compacts? Would such a requirement likely lead the compact states to constructive cooperation or only foment litigation? Compact litigation is on the rise and seems likely to increase as water supplies dwindle and demands increase against an unanticipated overlay of35 yeaTS of environmental legislation. Should an attempt be made at an early opportunity to persuade the Court to conclude that most compacts impose an implied obligation on the compacting states to undertake good faith cooperative efforts toward watershed protection and management either (1) as an independent enforceable compact obligation or (2) as a condition to enforcing alleged breaches of other compact obligations? In my report as Special Master in the Canadian River litigation, I made a similar recommendation: 17 l6See Sherk, n. 6 supra at 30. 17Report of Jerome C. Muys, Special Master, Oklahoma and Texas v. New Mexico, No. 109, Original (October 15, 1990) at 30-31. 312