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<br />. .':. <br /> <br />.,.,:~..:~ ;.:._ - ._~..:~..':i'.f~~.--"'J./..l.'" <br /> <br /> <br />-...... <br /> <br />. '~. <br /> <br />.i', <br />" <br />. <br /> <br />48 <br /> <br />STANFORD LAW REVIEW <br /> <br />[Vol. 19: Page I <br /> <br />'. <br />~..; <br /> <br />to direct the building of dams on any stream in the country, navigable Or <br />nonnavigable.'" Once the dam is built no one can interfere with the United <br />States' operation of the works, even though the United States takes water <br />from an old user and gives it to a new user. One whose property has been <br />taken by such acts of the United States may be entitled to compensation, <br />but the power to control and thus to reallocate the water is not subject to <br />restraint.in <br />Congressional power to allocate rivers interstate would thus appear to <br />have a firm constitutional basis, although discovery of the power in the <br />174th year of the Republic might strike some observers as slightly late. If <br />late, is the discovery also to be regretted? The author thinks not. Water <br />resource development will increasingly involve river basin management, <br />and operations will transgress state lines and require large federal expendi, <br />tures. Such basin development plans must necessarily come before Con. <br />gress, and it is a highly appropriate time when they do so to settle interstate <br />conflicts over water allocation. Without such a settlement development <br />cannot go forward. <br />Not only is the time appropriate but so is the place. First, a congressional <br />division is likely to be more expeditious than compact Or Supreme COUrt <br />apportionment. A division by compact may never take place; a Court divi, <br />sion is unlikely to be completed in less than ten years. Such delays can be <br />very costly. Second, a congressional apportionment is likely to obtain as <br />satisfactory a division as either a compact or an adjudication. A congres. <br />sional apportionment is in fact a form of compact, negotiared by the states' <br />water officials through their congressional delegation rather than through <br />appointed commissioners. It is true that congressional apportionment de. <br />prives the state legislatures of their veto power, but some substantial residue <br />of a veto power remains in the Senate if the state seriously objects to the <br />division. Most compacts represent compromises reached by the water reo <br />source establishments of the signatory states against a background of urgent <br />need (or at least desire) for federal benefits that are contingent upon agree, <br />ment being reached.'" To have the settlement become binding through <br />congressional action rather than state legislative action does not change <br />actual practice very much. <br />In the author's view, congressional interstate stream apportionment is <br />an institutional arrangement to be preferred to Supreme Court division. <br />The apportioning of water among several states is not a judicial act, for <br /> <br />~, <br />.,. <br />1~~ <br />, <br /> <br />-.-- <br /> <br /> <br />J97. S~e United States v. GerLich Live Stock Co., 339 U.S. 725 (1950). <br />198. Dugan .,. lUnk. 372 U.S. 609 (1963); U~ City of Fresno v, Dlifornia, 37) U.s. 6)7 <br />(lg63)' City 01 FrNllO is a companion case: to Dugan. The Court held in City 01 Fr~sno that F.riant <br />Dam in the Centnl Valh:y Project. did .Dot have to be opuated in conformity with state law and <br />left injured parties, if any. to a suit for compt:nsation in the CoUrt of Claims. <br />199. Born the Colorado River Compact and the Upper Colorado River Compact are c:xamples. <br /> <br />1'0\"eJ111><r 1966 ] <br /> <br />there are no no: <br />tnisrs, hydrolog1' <br />nct finding in tJ <br />pon for allocatin <br />But in a federal, <br />quasi.so\'er.ei.gn :" <br />rUk of deCISIon 1: <br />thing called "eql <br />iJDpossible to que <br />prerne Court is in <br /> <br />Apportionment <br />non of many fac. <br />al and climatic ( <br />(he river, the th.: <br />;t\'ailabiliry of stl <br />areas, the damaE <br />:Ue.1S if a Jimir.ati <br />are merd y an ill \..: <br />the problem of aJ <br />be made.zDD <br /> <br />This standard I <br />adjudieate the con <br />eight would have d <br />showing an overar , <br />p:lst, or . . . any tl <br />The dissent COntinI <br />interstate stream ad <br /> <br />The precedent no' <br />suit but in others. . <br />for this court to at <br />whom the parties n <br />they should be abl, <br />no substantial dam. <br />should be firmly ex <br />circumstances plair: <br />modalions for the f <br />inta-state compact, <br /> <br />Such controvc:rsi <br />cia! enforcem~t of <br />proves abortive:. Ow <br />here: twiceJ at the ir <br />.River. In a case pre:: <br /> <br />:100.325 U.s. 589. 618 <br />201. It!. 8r 657 (dissenti <br /> <br />