WSPC07667

• File Number: 8044
• Description: Section D General Studies-Compacts-general writings
• Date: 6/4/1921
• Title: Brief of Law of Interstate Compacts-Submitted by Delph E Carpenter to Judiciary Committee of House of Rep 67th Cong 1st Session June 4 1921-Powers of States to Enger into Compacts
• Water Supply Pro - Doc Type: Report/Study

00 ~H 4

oase it was held that the respeotive States were eaoh entitled to an equitable
portion of the waters of the common river, the extent of the use in eaoh State.
to be determined upon the faots and circumstanoes of eaoh particular case.

In the above-mentioned oase the right of the United States to the use of the
waters of the western streams was also considered and determined (pp. 87-93).

An equitable apportionment or allocation of the use and distribution of the
waters of western interstate streams may be best aocamp1ished through the efforts
of the States represerlted by commissioners fully acquainted with the facts and the
surrounding oonditions, as well as with the future possibilities of use of water
fram the streams.

I

Prinoiples of international law are applicable to the use and distribution of
waters of interstate streams, and as regards compacts between the States, "the
rule of decision is not to be colleoted from the decisions of either State, but
is one, if we may so speak, of an international character." (Marlett v. Silk,
11 Pet., 1, 23.)

'.

The rights of the nation in whose territory an international stream has its
rise to the use and benefit of its waters for the development of its territory,
irrespective of the effect upon the territory of a lower nation through which the
stream passes on its way to the sea, were fully considered by Attorney General
Judson Harmon, with respect to the olaims made by the Republio of Mexioo to
damage by depletion of the waters of the Rio Grande, oooasioned by uses in the
United States. After exhaustive oonsideration of the '~rious authorities upon
the subjeot, he arrived at the oono1usion that, while the United States had the
right to utilize the entire flow of the Rio Grande in the neoe8sary reolamation
of the lands near the source of the stream, and while "precedents of internati onal
law imposed no liability or obligation upon the United States" to permit any of
the water of the stream to flow to El Paso, nevertheless, he advi8ed that the
matter be treated as one of polioy and settled by treaty with Mexioo. (21 Ops.
Atty. Gen., 274, 280-283.)

r

It is safe to prediot that most of the past controversies respeoting the
waters of Western interstate streams oould have been avoided had the matters
in dispute been first submitted to oa,mpetent compaot oommissioners. Friotion be-
tween the Federal departments and th~ State authorities should be avoided by
proper oompaots between the states before oonstruotion proceeds upon riverswhere
su~h controversies may arise.

'J
.

The Colorado River is still "young," as regards utilization of its water
supply. Conditions look to enormous development during the next quarter of a
oentury. Nature facilitates an easy al10oation and settlement of all matters
pertaining to the future utilization of the waters of this stream, if means to
that end are taken prior to further oonstruction and before friotion deve10p8.
All apprehension of interferenoe with the gradual and neoessary future develop-
ment upon the upper reaohes of the stream by reason of earlier construotion of
enormous works on the lower river may be avoided by compaot and agreement entered
into prior to any future oonstruotion.

In faot, settlement of possible interstate oontroversies by interstateoampacts
is recommended by the United States Supreme Court. (Washington v. Oregon, 214,
u. s., 205, 218.)

-4-