WSP13022

• File Number: 8044
• Description: Interstate Compacts
• Date: 1/1/2002
• Author: Water Information Program/David Robbins
• Title: Interstate Compact Obligations: Impacts on Colorado Water Supply, speech exerpt from Gunnison Water Workshop
• Water Supply Pro - Doc Type: Publication

Quarterly Newsletter January 2002 Volume 7, Issue 1

.!'l'fffj,(jlifl<te CompttettJllllgtittblU:
Iinp.ctJ On Colorado Water Supply

Froln (l Jpeech by DavUJ JI7. RobbilU~ Attorney at Law~ Hill e3 RobbilU~ RC.

At the 24th Annual Water Work.Jhop~ GunnUon~. Cou.,raOQo

I would like to start the discussion about compacts and of radioactivity, and several states hav~ ~tlt~~e~~;tN.~i~}+
their implications with a discussion of the nature of compact to regulate for its disposal. Clearl~ that is an area
compacts. Interstate compacts are contractual agreements, where Congress could decide, under the health, safety and
like treaties, between two or more states or, in some cases, welfare clause of the Constitution, that it was going to take
between states and the federal government. In colonial primacy, and probably could singularly overrule that
America, it was a common practice for colonies to settle compact with a broad-based piece of federal legislation.
boundary disputes by agreement, subject to approval of
the Crown. This practice was carried over in the Articles
of Confederation and the Constitution. Article I, Section
10, Clause 3 provides: No State shall, without the consent
of Congress. . . enter into any Agreement or Compact
with another State, or with
a foreign Power, . . . .

Compacts are the law of each signatory state. Each state
has responsibility to ensure that its laws are enforced, .Cl,O.d
compacts are no different. They are also a law of the United
States and have been so described by the U.S. Supreme
Court. Finally, they are a contract,
enforceable by its terms under the
principles of contract law. Compacts
can occur when Congress consents to
the states agreeing upon certain
matters of common sovereignty.
Congress can consent before the states
actually draft the specific terms, or as
in some instances, Congress consents
after the states have agreed. Upon
consent, you have the congressional action necessary to
transform the compact into a law. I will describe later why
that is important. Congress cannot unilaterally amend
compacts. To change a compact requires the action of the
signatories. Congress must ratifY a compact, and Congress
may regulate the same resource by other mechanisms (i.e.,
The Clean Water Act), but I don't believe the Congress
could simply pass a law that had as its sole purpose the
unilateral amendment of a compact. That is not to say
that Congress could not act within its constitutional powers
to legislate on a subject that limited the way in which a
compact actually operated.

\\7ttter compacts have, in the "West, one
thing in common: they are designed to
allocate consumption. It doesn't matter
how the compact goes about doing it.
When you strip away all of the gloss,
they are allocating consumption. They
do it in a variety of ways.

Although the Constitution
seems literally to require
congressional consent for any
agreement between states, the
U.S. Supreme Court has
limited the requirement of
congressional consent under
the Compact clause to interstate agreements which may
affect the political balance within the federal system or
infringe on a power delegated to the federal government.
Early compacts dealt primarily with boundary issues, but
in the twentieth century, compacts have been used to cover
a wide variety of subjects, including the allocation of
interstate rivers and streams. There are compacts on bridge
tolls, compacts on low-level hazardous waste, compacts
on water - be clear that the compact works in the legal
realm where the federal government has not asserted, or
the Constitution has not provided for, federal sovereignty.
There is a low level hazardous waste compact in the West,
and Colorado is a signatory to it. The Compact deals
with material like x-ray film that have a very small amount

Water compacts are used at various places throughout the
Continued on page 2

In thiJ IJJue of the Water Letter

Interstate Compact Obligations ............................... 1 & 2 Point vs. Non-Point Water Pollution ................................. 3
Federal Reserve Water Rights Update ............................... 2 Events Calendar ................................................................ 4