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<br /> <br />OOOiJ4 <br /> <br />compact approach in effect on the Delaware and Susquehanna river basins in the. eastern mid- <br />Atlantic region endorsed by the National Water Commission in 1973.5 In that regard I commend <br />for your review a recent doctoral thesis by Jeffrey P. Featherstone, Deputy Executive Director of the <br />Delaware River Basin Commission, entitled "An Evaluation of Federal-Interstate Compacts as a <br />Institutional Model for Intergovernmental Coordination and Management of Water Resources for <br />Interstate River Basins in the United States" (August 1999), which reviews the 40-year track record <br />of the DRBC. <br /> <br />The United States,Constitution provides three means for addressing disputes regarding,interstate <br />waters: interstate compacts, litigation in the Supreme Court's original jurisdiction, and congressional <br />legislation. This paper focuses on Supreme Court decisions making equitable apportionments of <br />interstate rivers and interstate compacts which expressly purport to accomplish the same result by <br />agreement. 6 <br /> <br />II. SUPREME COURT "EQUITABLE APPORTIONMENT" <br /> <br />The basic premise of the Supreme Court's equitable apportionment decisions is that each interstate <br />basin state is entitled to an "equitable share" of its water and fish resources. Thus the Court's focus <br />has traditionally been on quantitative allocation, not management of aUocations or the watershed that <br />produces the water to satisfY them. The Court applies "interstate federal common law,'9 drawing <br />on state, federal, and internationallaw8 and considering all relevant facts "to secure an equitable <br />apportionment without quibbling about formulas.'9 Illustrative factors listed in the first interstate <br />river dispute to come before it, the controversy between Kansas and Colorado over the Arkansas <br />River, were the following: 1 0, <br /> <br />We think proofshould be made as to whether Colorado is herself <br />actually threatening to wholly exhaust the flow of the Arkansas <br />river in Kansas; whether what is described in the bill as the <br />"underflow" is a subterranean stream flowing in a known and <br />defined channel, and not merely water percolating through the <br /> <br />Trends, Policies and Practice 311 (1995). <br /> <br />5"Recommendation No. 11-18: The Federal-interstate compact is recommended as the preferred <br />institutional arrangement for water resources plarining and management in multi state regions." <br />National Water Commission, Water Policies/or the Future 424 (GPO 1973). <br /> <br />6For a highly useful recent compilation of the text of all of the Supreme Court's interstate water <br />decisions and interstate water compacts, see G. W. Sherk, Dividing the Waters: The Resolution of <br />Interstate Water Conflicts in the United States (Kluwer Law Int. 2000). <br /> <br />7Kansas v. Colorado, 206 U.S. 46, 98 (1907). <br />8 Kansas v. Colorado, 185 U.S. 125, 1 46-47 (1902). <br />. ,'.. 9New Jersey v. New York, 283 U.S. 336, 343 (1931). <br />'.10185 U.S. at 147 (emphasis added). <br /> <br />305 <br />