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

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with a better understanding of the effect addi-
tional water demands could have on the water
supply.
A recent development in federal legislation
concerns granting the power of eminent domain
to interstate coal slurry pipelines. The potential
competition between the slurry pipelines and the
railroad industry for the transport of coal has
produced a number of legal obstacles with
respect to crossing railroad "rights of way,"
Western states are particularly adamant, how-
ever, thaI such eminent domain power not extend
to obtaining state granted water rights. Con-
sequently, most of the opposition to such a
measure has come from the railroads and
western states.
There are a number of other congressional
acts, not specifically designed to impact inter-
state water use, which can significantly affect
interstate water development. The most promin-
ent of these include the National Environmental
Policy Act (NEPAl, the Clean Water Act, and the
Endangered Species Acl. The Grayrocks
example, noted earlier, illustrates very well the
kind of unanticipated impact these pieces of
federal legislation can have on a variety of inter-
state water activities. In the Grayrocks dispute,
the 404 permit process in the Clean Water Act,
NEPA and finally the Endangered Species Act
were used by objectors to the Grayrocks project
in an attempt to allocate surface flows on the
Platte River.
One sovereign power that is claimed by the
state is, "That the state in the exercise of its
police power may supervise and control the
appropriation, diversion and distribution 01 public
waters of the state..:'47 With fifty states claiming
a strong state interest in controlling the water
resources within Iheir boundaries. federal regu-
lation of water resources is more olten resisted
than pursued. The lack of accord between the
states in this area makes congressionallegisla-
tion a politically volatile issue. For example, a bill
has been introduced in Congress by represent-
atives from MiSsouri, Iowa. and Nebraska which
would prevent a state from selling water from an
interstate river or aquifer without the consent of
all of the affected states in the particular river or
groundwater basin. The proposed legislation is in
direct response to the announced plans of South
Dakota to sell water from Oahe Reservoir on the
Missouri River to ETSt. Inc. for a coal slurry
pipeline
In addition, Congressional action can be a
lengthy process. often made more so by delays
and specific policy controversies. This trait is not
unique to congressional legislation. however, as
both litigation and compact formation can be
time-consuming.

Interstate Compacts

A third method of fostering interstate Cooper-
ation and resolving disputes is the interstate
compact. It has been used sucessfully in the area
of interstate water allocations. The interstate
compact is a legal instrument which combines
the characteristics of a contract and a state
statute into a composite legal and administrative
mechanism. It is usually enacted by a state
legislature in much the same manner as other
legislation. It also possesses the basic attributes
of a contract by conferring rights and obligations
on the parties to it the state and its citizens, and
Ihe federal government in some cases. An admin-
istrative commission is frequently established
with responsibility for implementation of the
compact provisions.
The United States Constitution provides
authority lor the formation of interstate compacts
with the limitation that,
No State shall, without the Consent of
Congress, ...enter into any Agreement or
Compact with anolher State, or with a
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orelgn ower....
The United States Supreme Court has staled a
preterence for interstate compacts, in lieu 01
litigation in the Supreme Court. and that "where
possible, states settle their controversies by
'mutual accomodation and agreement'."49 Con-
gress has also encouraged "cooperative activi-
ties by the States" in the area of water reo
sources.50
The general practice for the negotiation of
interstate compacts is by jOint commissions
made up of representatives of each state usually
appointed by the governor. It has also been the
practice for states to invite federal participation
in compact negotiation. Less formal methods for
creating a compact are also available. State
officials. for instance. could formulate a proposed
compact without prior authorization and then
have it introduced as legislation in each state's
legislature. Formation of a compact normally
occurs by having each state legislature enact the
verbatim compact text in the body of a statute.
The resulting compact does not. however,
become effective until approved by Congress. In
addition. Congress usually reserves its right to
revoke or amend its consent. Another technique
used by the Congress is that of "attaching con-
ditions to its consent in order to preserve certain
Federal prerogatives which have not been dealt
with in the compact itself. Traditionally, most
water resource compacts have contained pro-
visions making it clear that the compact is to have
no effect on Federal "rights', 'jurisdiction', or
'powers'."51
The states, however, once they have ratified a

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