WSP02891

• File Number: 8407.400
• Description: Platte River Basin - River Basin General Publications - Nebraska
• State: NE
• Basin: South Platte
• Water Division: 1
• Date: 4/1/1983
• Author: Nebraska Natural Res
• Title: Policy Issue Study on Selected Water Rights Issues - Interstate Water Uses and Conflicts
• Water Supply Pro - Doc Type: Report/Study

Congressional Legislation

Congressional legislation has also produced
results in reducing and resolving interstate water
use conflicts. The congressional action which
perhaps brought the most attention to the extent
of congressional powers to directly affect inter-
state water conflicts was the enactment of the
Bou Ider Canyon Project Act of 1 928. That act was
essentially a congressional apportionment of the
waters of the Colorado River necessitated by the
construction of Hoover Dam and Lake Mead. It
was the first such congressional action, and the
only one thus far, allocating waters interstate.
The Boulder Canyon Project Act has been inter-
preted and upheld by the United States Supreme
Court on two occasions, most recently in 1964 in
Arizona v. California.34
Congress passed the Boulder Canyon Project
Act because the Colorado River Compact had
failed to achieve what Congress had hoped -- that
the states could reach an agreement among
themselves on each states' share of water. The
Act "authorized the Secretary of Interior to con-
struct, operate, and maintain a dam and other
works in order to control floods, improve naviga-
tion, regulate the river's flow, store and distribute
waters for reclamation and other beneficial uses,
and generate electrical power.,,35 It treated the
river problem as national rather than local.
The decision of the United States Supreme
Court in Arizona v. California is significant for two
reasons. First, the Court upheld a congressional
apportionment of interstate waters. Second, that
apportionment was neither controlled by the
doctrine of equitable apportionment applied by
the court in Nebraska v. Wyoming36, nor by the
Colorado River Compact. The court held:
In passing the Boulder Canyon Project
Act, Congress intended to, and did, create
its own comprehensive scheme for the
apportionment among California, Arizona
and Nevada of the Lower Basin's share of
the mainstream waters of the Colorado
River, leaving each state her own tributar-
ies.... Congress gave the Secretary of the
Interior adequate authority to accomplish
this division by giving him power to make
contracts for the delivery of water and by
providing that no person could have water
without a contract.,,37 (emphasis added)
In distinguishing a later case, the Court noted
that "because of the unique size and multistate
scope of the [Boulder Canyon] Project, Congress
did not intend the States to interfere with the
Secretary's power to determine with whom and
on what terms water contracts would be
made.,,38 The case, California v. United States,39
held that Section 8 of the Reclamation Act not

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only requires the Secretary to comply with state
law when it becomes necessary to purchase or
condemn vested water rights. "[I]t also requires
the Secretary to comply with state law in the
'control, appropriation, use, or distribution of
water.',,40
Other pieces of congressional legislation have
also had an impact on reducing interstate water
conflicts by encouraging states to establish
regional management authorities for interstate
river systems. The Water Resources Planning Act
of 1965 is a good example. This act when first
enacted, was hailed as "a new approach not only
to water resources development, but also to
problem solving in general.,,41 It reflected the
increasing federal involvement in water re-
sources development. The act's preamble states
that its purpose is "to provide for the optimum
development of the Nation's natural resources
through the coordinated planning of water and
related...."42
The act established a federal water resources
council and a framework of regional river basin
commissions with financial assistance to be pro-
vided to state and local agencies in the form of
matching grants. The water resources council
was "designed to coordinate the planning activi-
ties of the several federal agencies concerned
with the conservation, development, and use of
water resources and to serve as the main
channel of communication for state and regional
views on federal water resource develop-
ment.',43 It was to be composed of the Secre-
taries of Interior, Agriculture, Army, Health and
Human Services, the Chairperson of the Federal
Power Commission, and any other appropriate
federal agency head appointed by the President.
The President also has the power under the Act
to create regional river basin commissions. It has
been stated that
It] he great goal of river basin planning and
management over the last half-century has
been to achieve meaningful coordination of
federal and nonfederal water resources
plans and actions. With respect to interstate
waters, the search has also been for a
mechanism to provide a regional perspect-
ive to the development and implementation
of a comprehensive plan.44
The President also has authority to unilaterally
terminate the Commissions, including the
Missouri River Basin Commission, which Presi-
dent Reagan did in 1981.45 A new Missouri Basin
States Association has been formed to represent
the interests of the ten states in the Missouri
River Basin.46 A major priority of the association
is to complete the study of the Missouri River
basin which was designed to inventory the water
in the basin in order to provide member states