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i ,if;, ::~~lI~r~~~~Jf~~7t~~1!iii~~flJ{~~_.~~~~~~~~'fi~~t~~~~~11i~t\~&~tit1f1i~!~~t~b~~~~iJf~~{~~~lI~1~~:~~i%~:~~1~~:~;. , 0007J9 "protection of the marine environment" (article 23). (Emphasis added). Of similar import are a number of the provisions of the Convention on the Protection and US~-6f: Transboundary Watercourses and International Lakes (the so-called "Helsinki Rules"), promulgated: in 1992 by the U.N. Economic Commission for Europe..',:~ How Can Watershed Protection and Management be Elevated to a More Significant Fact9i~ for the Supreme Court to Consider in Equitable Ap{?ortionment Cases? ' The Supreme Court decisions discussed above lay a firm foundation for asking the Court to make,; a more positive statement about watershed protection and management as a highly significant factof- in an equitable apportionment case. How can it be persuaded to do so? Watershed protectionadmanagement could be raised by a party as (1) a consideration in determining the magnitude o.'t another state's "equitable share" of the resource or (2) a condition for a state's utilization o(iM~ allocation. But what if the party states, or the United States, if it has intervened, don't raise the issu~t< A party state may not want to do so because it doesn't have "clean hands." For example, in Missoutlk v. Illinois, 200 U.S. 496 (1906), in which Missouri sought to enjoin Illinois from,discharging sewage',~ into the Mississippi River, Justice Holmes applied the "pot calling the kettle black" rule, noting 1h~H "if we are to judge by what the plaintiff itself permits, the discharge of sewage into the Mississippf by cities and towns is to be expected" (id at 521) and that "the presence of causes of infection from<" the plaintiff's action makes the case weaker in principle as well as harder to prove." Id. at 526.;) Similarly, in Colorado v. New Mexico, supra, the Court emphasized the reciprocal obligation of the ,'~ contending states to take reasonable conservation measures. The United States may also not want. ~ to raise the issue for the same reason if some of the states contain extensive federal land holdings or federal water projects and its land and water management agencies are not pursuing mandated;-:,! watershed management or doing it poorly, 13 or ifEPA or the FERC are not administering fe~eral " water regulatory programs evenhandedly in an ,interstate basin. What if the United States doesn't intervene, is deemed to be an indispensable party, but asserts sovereign immunity against efforts to join it as a party? Where the United States' claims are derived from state law, e.g., reclamation project water rights, it is not an indispensable party. Nebraska v. Wyoming, 325 U.S. 589 (1945). But it has been held to be indispensable where it exercises significant exclusivefederal water allocation authority. Arizona v. California, 298 U.S. 558 (1936) (exclusive water allocation authority under Boulder Canyon Project Act); but see Idaho v. Oregon and Washington, 444 U.S. 390 (1980) (United States' operation of eight dams on Columbia River system did not make it indispensable where Idaho's suit for equitable apportionment offish resources did not complain of such operation). Similarly, it was held to be indispensable in Texas v. New Mexico, 352 U.S. 99 (1957), be,cause it was trustee for Indian and Pueblo water rights in New Mexico that allegedly would have been impaired by the relief Texas was seeking under the Rio Grande Compact. Ifthat decision is still good law, particularly in light of the development of the law ofIndian reserved water rights, it might be difficult to sustain an equitable apportionment or compact enforcement suit in any interstate river basin containing Indian reservations unless the United States intervenes, rendering those constitutional dispute resolution mechanisms meaningless. Does the United States' administration of comprehensive regulatory programs dramatically affecting water rights, such as the Clean Water Act or the Endangered Species Act, make it indispensable? See 13 See, e.g., G. Coggins, Watershed as a Public Natural Resource on the Federal Lands, 11 Va. Env.L.J. I (1991), and Glennon and Thorson, n. I supra. 310 II "