8014

• UCREFRP Catalog Number: 8014
• Author: McDonald, W. J.
• Title: The Upper Basins' Political Conundrum
• USFW Year: 1997.
• USFW - Doc Type: A Deal is Not a Deal.
• Copyright Material: NO

The Upper Basins' Political Conundrum: A Deal is Not a Deal
2. Interstate Compacts
The Compact Clause of the U.5. Constitution recognizes, by negative
implication, the power of the states to negotiate interstate agreements,
subject to the consent of Congress:
No state shall, without the consent of Congress ... enter into any agreement
or compact with another state, or with a foreign power ...."
Such compacts are binding on the signatory states and on the individual
citizens of the compacting states.
One of the virtues of an interstate compact is that it allows the signatory
parties:
... to allocate unappropriated water, thus making a 'present appropriation
for future use. " Ability to make these determinations in advance is crucial
to long range water project planning.18
In the context of this paper, this observation is particularly relevant to the
Colorado River Basin. It was concern on the part of upper basin states about
the rapid pace of development in California versus the slow pace of
development in the upper basin, coupled with the U.S. Supreme Court's
decision to apply the doctrine of prior appropriation in the 1922 decision in
Wyoming v. Colorado, that prompted the upper basin states to consummate
the negotiation of the Colorado River Compact later that year, the history of
which negotiations will be chronicled in the next section of this paper. From
the perspective of upper basin water development interests, an interstate
compact was desirable because it would allocate to them "in perpetuity" for
future use then unappropriated and unused waters of the upper basin,ls
" U.S. CONST. art. I, § 10, cl. 3.
1e D. GETCHES, supra note 5, at 407.
19 Whether western states can indeed rely on interstate compacts to achieve protection "in
perpetuity" as against the future actions of Congress is a legal and policy issue which is far
beyond the scope of this paper. Insofar as the power of Congress under the Commerce Clause
of the U.S. Constitution may be concerned, see, e.g., Carlson and Boles, Contrary View of the
Law of the Colorado River: An Examination of Rivalries Between the Upper and Lower Basins,
in PROCEEDINGS OF THE THIRTY-SECOND ANNUAL ROCKY MOUNTAIN MINERAL
LAW INSTITUTE 21-28 - 21-29 (1986) ("Congress probably possesses the power under the
commerce clause ... to modify an interstate compact by statute."). However, with respect to
the issue of whether it is permissible for federal environmental regulatory laws to adversely
impact a state's ability to develop and consume waters allocated to it by an interstate compact,
the analysis turns on considerably more than just the Commerce Clause.

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