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WSP12627
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Last modified
1/26/2010 4:17:04 PM
Creation date
8/6/2007 1:28:04 PM
Metadata
Fields
Template:
Water Supply Protection
File Number
8210.136
Description
Colorado River Basin Organizations - Entities - Governance Committee
State
CO
Basin
Colorado Mainstem
Water Division
5
Date
2/15/2001
Author
Jerome C Muys
Title
Beyond Allocation - Equitable Apportionment and Interstate Watershed Protection and Management - Jerome C Muys - 02-15-01
Water Supply Pro - Doc Type
Report/Study
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<br />...,...,.:,.". <br /> <br /> <br />- <br /> <br />000712 <br /> <br />[I]t seems timely for this Court to declare that when states enter <br />into a compact they undertake an implied commitment to make the <br />compact work and to take no affIrmative or dilatory action that <br />would frustrate its purpose. This is the rule under general <br />commercial contract law16 and would seem particularly applicable <br />to political agreements among sovereign states. <br /> <br />More significantly, once the states reach agreement and seek the <br />requisite Congressional consent to the regional program, it seems <br />clear that any resulting Congressional consent also imposes an <br />implied duty on the part of the compacting states to participate in <br />good faith in the implementation of the compact plan to carry out <br />its purposes. . Such an implication is eminently reasonable, <br />otherwise the compact program to which Congress has consented <br />and thereby deferred direct legislative action might fail, aU to the <br />detriment of the national interest. <br /> <br />* * * <br /> <br />16Tymshare, Inc. v. Covell. 727 F.2d 1145 (D.C. Cir. 1984); <br />Restatement (Second) of Contracts S205 (1979); 4 Corbin on <br />Contracts f 947 (I9SI and Supp. 1971). <br /> <br />The Court politely rejected that recommendation. Oklahoma and Texas v. New Mexico, 501 U.S. <br />221,229,241 note II (1991). <br /> <br />Finally, does a state signatory to a water allocation compact have an implied duty to make <br />"reasonable beneficial use" of its allocation, with all that implies, particularly where each state's own <br />law imposes that same obligation on its water users? C.f Wyoming y. Colorado; Colorado v. New <br />Mexico, pages 3-4 supra. <br /> <br />IV. CONCLUSION <br /> <br />The Supreme Court indisputably has the power to at least assigil a high priority to watershed <br />protection and management in its equitable apportionment and interstate compact cases with~ut <br />imposing specific goals or mechanisms for its accomplishment. Furthermore, its decisions suggest <br />that it would be receptive to doing so upon a properly developed record. Who will take the initiative <br />to urge the Court to do so and how? Nebraska v. Wyoming (No. l08 Orig.), Kansas v. Nebraska (No. <br />126 Orig.) and Virginia v. Maryland (No. 129 Orig.) are all still before Special Masters appointed <br />by the Court; 4l:U~~&,(1,I;H:lli_miI1Bt~~~~'P-articUl~1~.;f()l!:s(jelnltt'e-W6ri~tf~flf,""en\l:oofi1Tfetit3I./ <br />~ttS.~~~aatt~Dut if they don't do so, would amicus curiae briefs by other appropriate entities <br />b~"'practical when that case finally reaches the Court? Wouldn't the effort, even ifrejected, at least <br />sensitize the Court to the issue? <br /> <br />With respect to Congressional action on existing 9f future compacts, a bi-partisan initiative to <br />consider the role of watershed protection and management, even if only oversight hearings, might <br />have a reasonable prospect of success and produce some useful information and discussion, if not <br />legislation. <br /> <br />313 <br />
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