WSP02650

• File Number: 8200.700
• Description: Law of the River
• Basin: Colorado Mainstem
• Date: 1/1/1980
• Author: Carlson and Boles
• Title: Chapter 21 Contrary Biews of the Law of the Colorado River: An Examination of Rivalries Between the Upper and Lower Basins
• Water Supply Pro - Doc Type: Publication

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21-29

LAW OF THE COLORADO RIVER

9 21.04[2]

[2] Federal Legislation Modifying the 1922 Compact

Congress probably possesses the power under the com-
merce clause of the Constitution to modify an interstate com-
pact by statute. By ratifying a compact, Congress transforms
it into federal statutory law!05 Congress, of course, is at lib-
erty to amend such law. This authority was asserted by
Frankfurter and Landis in their celebrated examination of
interstate compacts: "If and when circumstances which now
can for a solution through compact change, Congress is
wholly free to assume control." 106 It was initially recognized
by the courts in Pennsylvania v. Wheeling & Belmont
Bridge 107, where congressional authorization of a bridge
over the Ohio River was challenged as inconsistent with an
interstate compact providing that the river remain free and
open to navigation. The Supreme Court sustained the power
of Congress to legislate inconsistently with, and thus over-
ride, an interstate compact:

The question here is, whether or not the Compact can op-
erate as a restriction upon the power of Congress under
the Constitution to regulate commerce among the several
states. Clearly not. Otherwise Congress and two states
would possess the power to modify and alter the Constitu-
tion itself.los

Congress' power was confirmed in the first suit by Arizona
following the six-state ratification of the Colorado River
Compact.109 In seeking to enjoin construction of the Boulder
Canyon Project, Arizona argued that section 6 of the Act, 11 0
which specifies that the authorized dam and reservoir should
be used "first, for river regulation, improvement of naviga-
tion, and flood control" conflicted with Article IV(a) of the
Compact, which subordinates navigational use of the River

105 See Intake Water Co. v. Yellowstone River Compact Comm'n, 590 F.Supp. 293
(D.Mont. 1983).
106 Frankfurter & Landis, "The Compact Clause of the Constitution-A Study in
Interstate Adjustments," 34 Yale L.J. ~85, 727 (1925).
10759 U.s, (18 How,) 421 (1856).
10S rd. at 433.
109 Arizona v. California, 283 U.S. 423 (1931).
11043 U.S,C. ~ 617e (1982).