Model Interstate Water Compact [1 ed.] 9780826346308, 9780826346285

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Model Interstate Water Compact

Muys

Model Interstate Water Compact

Jerome C. Muys George William Sherk Marilyn C. O’Leary

Sherk O’Leary

environment • law american west • politics

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isbn 978-0-8263-4628-5

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university of new mexico press unmpress.com 800-249-7737

Sponsored by The Utton Transboundary Resources Center University of New Mexico School of Law

4/20/09 12:31:49 PM

Model Interstate Water Compact

i

Model Interstate Water Compact

Jerome C. Muys George William Sherk Marilyn C. O’Leary

t t t

University of New Mexico Press Albuquerque t t t Sponsored by The Utton Transboundary Resources Center University of New Mexico School of Law

© 2009 by the University of New Mexico Press All rights reserved. Published 2009 Printed in the United States of America 14 13 12 11 10 09 123456

Library of Congress Cataloging-in-Publication Data Muys, Jerome C. Model interstate water compact / Jerome C. Muys, George William Sherk, Marilyn C. O’Leary. p. cm. Includes index. “Sponsored by The Utton Transboundary Resources Center, University of New Mexico School of Law.” isbn 978-0-8263-4628-5 (hardcover : alk. paper) 1. Water rights—United States. 2. Interstate agreements—United States. 3. Water—Law and legislation—United States. I. Sherk, George William. II. O’Leary, Marilyn. III. Utton Transboundary Resources Center. IV. Title. KF5575.M89 2009 346.7304'691—dc22

2009001152

Designed and typeset by Mina Yamashita. Text composed in Minion Pro, designed by Robert Slimbach for Adobe. Printed by Integrated Global Technologies on 55# Bulking Cream.

The Utton Transboundary Resources Center’s Model Interstate Water Compact is dedicated to the memory of Professor Albert E. Utton, whose practice of preventive diplomacy and authorship of “Transboundary Groundwaters: The Bellagio Draft Treaty” brought to reality his values of inclusivity and mutual respect in the sustainable management of transboundary natural resources. t t t

Contents Introduction / xiii Preamble / 1 Preamble Commentary / 3 Article I: Compact Purposes, Water Subject to Compact, and Signatory Parties / 4 Article I: Commentary / 5 Article II: Effective Date and Duration of Compact / 7 A. Effective Date / 7 B. Duration / 7 C. Modification or Amendment / 8 D. Individual Party Withdrawal / 8 Article II: Commentary / 9 A. Waiver of the United States’ Sovereign Immunity / 9 B. Sunset Limitation on Compact Duration / 11 C. Individual Party Withdrawal / 12 Article III: Definitions / 15 A. Advisory Committee / 15 B. Base Apportionments / 15 C. Chargeability / 15 D. Commission / 15 E. Conjunctive Use / 15 F. Council / 15 G. Dispute Resolution / 15 H. Division of Scientific Analysis / 16 I. Perfected Water Right / 16 J. Reasonable Beneficial Use / 16 K. Safe Annual Yield / 16 L. Species and Habitat Protection / 16 M. Subsurface Water / 16 N. Supplemental Apportionments / 16 O. Water Quality Protection Program / 16 P. Water Resources Management Program / 16

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Contents

Article III: Commentary / 17 Article IV: The Utton River Basin Commission / 19 A. Establishment and Structure / 19 B. The Commission / 19 (1) Members of the Commission / 19 (2) Chair of the Commission / 19 (3) General Powers of the Commission / 19 (4) Principal Duties of the Commission / 22 C. The Council / 22 D. The Division of Scientific Analysis / 23 E. Commission, Council, and Division Decisions / 24 F. Meetings and Voting / 24 Article IV: Commentary / 25 A. Establishment and Structure / 25 B. Commission Members / 27 C. General Powers of the Commission / 28 D. The Council / 31 E. The Division of Scientific Analysis / 31 F. The Federal-Interstate Compact Option / 32 Article V: Interstate Water Apportionments / 38 A. Interstate Base and Supplemental Apportionments / 38 B. Intrastate Allocations / 39 C. Adjustment to Base Apportionments / 39 D. Supplemental Apportionments / 39 E. Transfers of Apportionments / 40 F. Monitoring of Apportionment Usage / 40 G. Measurement and Apportionment Chargeability of Subsurface Water Usage / 41 H. Apportionments Limited by Reasonable Beneficial Use / 41 Article V: Commentary / 43 A. The Apportionment Scheme / 43 (1) Apportionments Based on Estimated Safe Annual Yield / 43 (2) The Apportionment Methodology / 44 B. Intrastate Allocations / 45 C. Base Apportionments / 45 D. Supplemental Apportionments / 49 E. Transfers of Apportionments / 50 F. Subsurface Water Use and Chargeability / 51 G. Reasonable Beneficial Use / 52

Contents Article VI: Water Quality Protection Program / 56 A. Policy and Standards / 56 B. Tributary Waters / 57 Article VI: Commentary / 58 Article VII: Water Resources Management Program / 63 A. Water Supply and Requirements / 63 B. Commission Review and Approval of Projects / 64 C. Conjunctive Use / 64 D. Flood Control / 64 Article VII: Commentary / 66 A. Coordination of Regional Supply and Demand Planning / 66 B. Conjunctive Use / 67 Article VIII: Enforcement of Compact Obligations and Resolution of Other Disputes / 69 A. Enforcement of Compact Obligations / 69 B. Dispute Resolution / 70 Article VIII: Commentary / 72 A. Enforcement of Compact Obligations / 73 B. Resolution of Other Disputes / 74 Article IX: Interagency Coordination and Public Participation / 75 A. Interagency Coordination / 75 B. Advisory Committee / 75 C. Reports / 76 Article IX: Commentary / 77 A. Communication and Consensus / 77 B. Legitimacy and Transparency / 78 C. Advisory Committee / 79 Article X: Budgeting and Funding / 82 A. Capital Budget / 82 B. Operating Budget and Assessments / 82 C. Payment of Assessments / 82 D. Sanctions for Failure to Pay Assessments / 82 E. Annual Independent Audit / 83 Article X: Commentary / 84

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Contents

Article XI: Relationship of Compact to Existing Law / 87 A. State and Tribal Laws / 87 B. Federal Laws / 87 C. United States Supreme Court Decrees / 88 Article XI: Commentary / 89 Appendix A: Advisory Committee / 96 Appendix B: Interstate Compacts / 99 B-1: Alabama-Coosa-Tallapoosa River Basin Compact / 99 B-2: Animas‑La Plata Project Compact / 113 B-3: Apalachicola-Chattahoochee-Flint River Basin Compact / 114 B-4: Arkansas River Basin Compact of 1965 / 128 B-5: Arkansas River Basin Compact of 1970 / 137 B-6: Arkansas River Compact of 1949 / 146 B-7: Bear River Compact / 156 B-8: Belle Fourche River Compact / 172 B-9: Canadian River Compact / 178 B-10: Chesapeake Bay Commission Agreement / 183 B-11: Colorado River Compact / 188 B-12: Connecticut River Flood Control Compact / 193 B-13: Costilla Creek Compact (Amended) / 203 B-14: Delaware River Basin Compact / 216 B-15: Great Lakes Basin Compact / 253 B-16: Jennings Randolph Lake Project Compact / 260 B-17: Kansas-Nebraska Big Blue River Compact / 267 B-18: Klamath River Basin Compact / 276

Contents B-19: La Plata River Compact / 292 B-20: Merrimack River Flood Control Compact / 295 B-21: New England Interstate Water Pollution Control Compact / 303 B-22: New Hampshire-Vermont Interstate Sewage and Waste Disposal Facilities Compact / 307 B-23: Ohio River Valley Water Sanitation Compact / 310 B-24: Pecos River Compact / 315 B-25: Potomac River Basin Interstate Compact / 324 B-26: Red River Compact / 329 B-27: Red River of the North Compact / 348 B-28: Republican River Compact / 353 B-29: Rio Grande Compact / 360 B-30: Sabine River Compact / 372 B-31: Snake River Compact / 382 B-32: South Platte River Compact / 390 B-33: Susquehanna River Basin Compact / 398 B-34: Tennessee River Basin Water Pollution Control Compact / 437 B-35: Thames River Flood Control Compact / 444 B-36: Tri-State [Sanitation] Compact / 450 B-37: Upper Colorado River Basin Compact / 459 B-38: Upper Niobrara River Compact / 476 B-39: Wabash Valley Compact / 482 B-40: Wheeling Creek Watershed Protection and Flood Prevention District Compact / 488 B-41: Yellowstone River Compact / 497 Index / 506

xi

Introduction* Disputes among states sharing interstate waters have increased significantly over the past two decades. These disputes, which involve the states’ respective quantitative shares of such waters, water quality concerns, and the effects of a variety of federal environmental laws enacted since the early 1970s, have been of increasing concern to the members of the Committee on Energy and Natural Resources of the U.S. Senate, chaired by Senator Pete V. Domenici of New Mexico. Consequently, in 2000, as a result of Senator Domenici’s efforts, the University of New Mexico School of Law received funding for the Utton Transboundary Resources Center to consider and promote ways for states to resolve interstate water disputes short of protracted, costly, and often bitter litigation. The U.S. Supreme Court has made its position abundantly clear: States should resolve their conflicts pursuant to the compact clause of the U.S. Constitution. Such disputes are “more likely to be wisely solved by cooperative study and by conference and mutual concession on the part of representatives of the states so vitally interested in it than by proceedings in any court however constituted.”** The states have entered into 26 interstate water allocation compacts, primarily in the western United States, most of them over 50 years ago. As interstate water conflicts have increased, so has the realization that most of the existing compacts appear to be inadequate to resolve these conflicts. Consequently, in 2002 the Utton Center initiated a comprehensive project to develop a Model Interstate Water Compact. A national conference, titled “Interstate Waters: Crossing Boundaries for Sustainable Solutions, a Multidisciplinary Approach,” was held to address the approaches of a variety of disciplines that are key in managing interstate water resources. Seventy lawyers and scientists from across the United States with extensive expertise in interstate water issues gathered to share what they believed to be the strengths and the limitations of their particular disciplines when it came to addressing complex water issues. The purpose of the conference was to identify ways that they could better work together to support the management goals of stakeholders. In 2004, a second national conference, “Transboundary Waters: Crossing Cultural Boundaries

This Introduction is taken from a paper originally published by the Rocky Mountain Mineral Law Foundation in the Proceedings of the 52nd Annual Rocky Mountain Mineral Law Institute (2006). *

**

New York v. New Jersey, 256 U.S. 296, 313 (1921).

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Introduction

for Sustainable Solutions,” brought together a variety of experts who had been successful in crafting Indian water rights settlements. Acequia water rights and values were also discussed. Perspectives on the values related to water were shared by representatives of major water user groups.*** The Utton Center began drafting the Model Compact in 2004. The methodology for carrying out the project was as follows: • A thorough literature review was undertaken to identify and evaluate the asserted strengths and weaknesses of the use of compacts to resolve interstate water conflicts. • A review was conducted of the language of all existing interstate water allocation compacts and required congressional consent legislation to identify how critical issues have been addressed historically. This research was supplemented with a questionnaire sent to each of the interstate water compact commissions on the practical administration of those compacts. • An Advisory Committee was selected comprised of more than two dozen individuals representing a wide range of professional areas of expertise and stakeholder interests. Members of the Advisory Committee are listed in Appendix A. • Additional research included an analysis of the impact of federal environmental legislation affecting existing interstate water compacts and a review of compact litigation in the Supreme Court. • The unsuccessful efforts to resolve conflicts regarding the ApalachicolaChattahoochee-Flint and the Alabama-Coosa-Tallapoosa river basins through the use of interstate compacts were addressed. Recent initiatives regarding the Great Lakes were reviewed. • In March 2005 the Advisory Committee assembled at Bishop’s Lodge near Santa Fe, New Mexico, where the first interstate water allocation compact, the Colorado River Compact, was negotiated in 1922. The purpose of this three-day workshop was to evaluate and supplement the principal issues identified by the project study and to receive recommendations



***

Chris Nunn Garcia and Michele Minnis assisted significantly in drafting both conference proceedings. The Utton Center particularly wants to recognize Chris Nunn Garcia’s role in the planning, facilitating, photographing, and writing about the recent conference. Chris’s death in July of 2006 was a great loss to all who support water management collaboration.

Introduction

xv

regarding specific approaches, methodologies, and topics to be addressed in the Model Compact. Following that meeting, a summary of its principal conclusions and recommendations was prepared for review and comment by the Committee. • A working draft of a Model Compact was then prepared and sent to the Advisory Committee for review and comment. The committee responded with a number of excellent comments, most of which were incorporated in the draft Model Compact. • The compact was presented to the American Bar Association Section of Environment, Energy, and Resources 24th Annual Water Law Conference, February 24, 2006, and at the 52nd Annual Rocky Mountain Mineral Law Institute in July 2006, where it underwent additional scrutiny by water lawyers familiar with interstate water compact issues. • A commentary section for each Compact article was prepared to explain why particular approaches were taken, along with suggestions for alternative approaches to critical issues. The commentaries illustrate how the Model Compact, which is not intended as a “one size fits all” proposal, can be adapted to different situations in various river basins. The primary goal of the Model Compact is to provide a mechanism by which interstate water conflicts may be resolved in an amicable, efficient, and equitable manner. The Model Compact empowers states to take interstate water management into their hands to avoid the uncertainties and costs of litigation and the vagaries of congressional legislation. It is hoped that this compact will assist states (and countries sharing international rivers) in the sustainable management of shared water resources. The Utton Center is deeply grateful to the following funders of the Model Compact project: United States Department of Energy; Thaw Charitable Trust; McCune Charitable Foundation; Healy Foundation; New Mexico Highlands University; Rocky Mountain Mineral Law Foundation; General Service Foundation; Sandia National Laboratories; Sheehan, Sheehan, & Stelzner, P.A.; New Mexico State Bar, Section on Natural Resources, Energy and Environment; Hill, Edwards, Edwards & Kinney, L.L.C.; John Shomaker & Associates; Modrall Sperling Law Firm; Weatherford and Taaffe, L.L.P.; and Public Service Company of New Mexico.

Preamble Asserting that, inasmuch as the states that include the surface and hydrologically connected subsurface waters of the Utton River Basin are most directly affected by the management and quality of such waters, such states should exercise principal authority over them, subject to certain federal obligations; and Recognizing that the water resources of the Utton River Basin are or may become valuable for a variety of beneficial purposes including, but not limited to, agricultural irrigation, municipal and domestic uses, power generation, navigation, recreation, fish and wildlife habitat maintenance, aesthetic enjoyment, livestock watering and forage maintenance, industrial use, and spiritual and religious uses; and Sharing the congressional goal in the Clean Water Act “to restore and maintain the chemical, physical, and biological integrity” of the Basin’s waters; and Having experienced that the optimum use and protection of the Basin’s waterrelated values may be constrained or precluded because of the limits imposed on the jurisdiction of the Basin states by virtue of their political boundaries; and Persuaded by the United States Supreme Court’s repeated recommendation that the states attempt to forestall and resolve interstate water disputes through agreements pursuant to the compact clause of the United States Constitution; and Convinced that the equitable sharing and sustainable management of the Basin’s water resources can best be accomplished and equitably adjusted when necessary by the Basin states jointly by agreement rather than by litigation or federal legislation or administrative action; and Understanding the need for integrated, adaptive water resource management, specifically the need for management decisions affecting the watershed to be made at the watershed level, as being of critical importance to the sustainable management of the water resources of the Utton River Basin; and Believing that operations of federally constructed, permitted, licensed, or funded water development projects and implementation of federal environmental protection or other water management programs should be consistent with regional water resource management programs developed in cooperation with federal agencies if such programs are not in direct conflict with such agencies’ non-discretionary statutory obligations; Now, therefore, the signatory parties to this Compact commit themselves to this joint effort to establish an effective, efficient, and equitable regional institutional framework and program for the cooperative management of the Utton River Basin’s

1

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Preamble

water resources as a supplement to their individual programs and agree (1) to exercise their Compact rights and responsibilities in good faith and not frustrate the Compact purposes through action or inaction, and (2) to make reasonable beneficial use of their water apportionments under the Compact with due regard to the interests of the signatory parties in the common resource.

Preamble Commentary The Utton Center’s Advisory Committee urged that the Model Compact have a strong preamble stating its political, legal, philosophical, and practical underpinnings. The preamble begins with the premise that, inasmuch as the management and quality of interstate water resources impact most directly the states in an interstate watershed, such states should exercise principal management authority over interstate water resources in cooperation with federal water resource management and regulatory agencies in the region. Because the territorial limitations imposed on the individual states preclude other than joint action to address regional problems, the preamble acknowledges the Supreme Court’s repeated admonishments to utilize the interstate compact approach authorized in the United States Constitution rather than litigation or federal legislation. Building on these principles, the Model Compact commits the signatory parties to carry out the agreement in good faith and to make reasonable beneficial use of their apportionments with due regard for the interests of all signatory parties in the common resource.

3

Article I Compact Purposes, Water Subject to Compact, and Signatory Parties This Compact effects an equitable apportionment of and establishes an interstate water project development coordination program and a water quality protection and improvement program for the surface water flows and hydrologically connected subsurface waters of the Utton River and its tributary water bodies within the states of A, B, and C. Signatory parties are the states of A, B, and C; the Indian tribes within those states listed below; and the United States of America. State A 1. The _________ Nation 2. The _________ Indian Tribe 3. The _________ Pueblo State B 1. The _________ Indian Tribe

4

Article I Commentary Compact Purposes, Water Subject to Compact, and Signatory Parties The principal purpose of the Model Compact is to respond to the Supreme Court’s repeated admonition to contesting states that the negotiation of their respective “equitable shares” of interstate regional water resources and resolution of other disputes regarding such resources is a far better approach than a judicially imposed “equitable apportionment” or other judicial decree.1 Because the Supreme Court’s equitable apportionment decisions provide a useful catalog of desirable components of a negotiated equitable apportionment, much of the Model Compact draws on that background in trying to frame an agreement mirroring how the Supreme Court most likely would address particular issues. Companion purposes are to establish a regional institution to assist in the oversight of the coordinated joint use of those equitable shares of the Basin’s water resources and maintenance of their quality in the broad regional interest because of the territorial limitations on the exercise of an individual state’s powers. Of course, a compact could only address more limited, 1



An interstate water conflict is “more likely to be wisely solved by cooperative study and by conference and mutual concession on the part of . . . the States . . . than by proceedings in any court.” New York v. New Jersey, 256 U.S. 296, 313 (1921) (No. 2, Orig.) (remarking upon “the grave problem of sewage disposal”). This position has been reaffirmed consistently. Time and again we have counseled States engaged in litigation with one another before this Court that their dispute “is one more likely to be wisely solved by co-operative study and by conference and mutual concession on the part of representatives of the States so vitally interested in it than by proceedings in any court however constituted.”





Texas v. New Mexico, 462 U.S. 554, 575 (1983) (No. 5, Orig.) (quoting New York v. New Jersey, 256 U.S. at 313). The Court has “often expressed [a] preference that, where possible, States settle their controversies by ‘mutual accommodation and agreement.’ . . .” Oklahoma v. New Mexico, 501 U.S. 221, 241 (1991) (No. 109, Orig.) (quoting Arizona v. California, 373 U.S. 546, 564 (1963) (No. 8, Orig.) (quoting Nebraska v. Wyoming, 325 U.S. 589, 616 (1945) (No. 6, Orig.) and Colorado v. Kansas, 320 U.S. 383, 392 (1943) (No. 5, Orig.)). With regard to the proposed initiation of an original action, the Court concluded in Vermont v. New York that “[t]he parties have available other and perhaps more appropriate means of reaching the results desired under the Proposed Court Decree. An interstate compact under Art. I, § 10, cl. 3, is a possible solution of the conflict here.” 417 U.S. 270, 277 (1974) (No. 50, Orig.).

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Article I

though highly important, purposes such as water quality protection, flood control, or regional planning. There appears to be substantial agreement on the national2 and international levels3 that a river basin is the optimal geographic area for planning and implementing water resource development and management programs. In recognition that the use of a basin’s water may have far-reaching impacts outside its watershed, such as California’s and Denver’s use of Colorado River water, it has been suggested that water planning and management institutions should be designed to address issues in this broader “water commons.”4 However, the authors believe that compacts are best limited to discrete interstate watersheds and broader regional issues should be left to agreements among compact commissions or other states in the adjacent watersheds. There is a strong consensus on the Advisory Committee and among commenters that hydrologically connected subsurface water should be expressly included in any compact allocations of surface flows. Even if it is not expressly included for some reason, the Supreme Court is highly likely to imply its inclusion unless it is expressly excluded with precise language.5 Non-tributary subsurface waters in isolated interstate aquifers are not addressed in the Model Compact, but the authors believe that many of the principles and concepts embodied in it are equally applicable for such water bodies. If certain geographic portions of the Basin waters or non-native imported waters or “developed” waters are not to be subject to the compact for any reason, they should be clearly identified and accompanied by a succinct statement of the reason for the exclusion. Imported or developed waters should be excluded for use by the importing or developing state or states unless they are commingled with Basin waters and dedicated to a Commission-sponsored or Commission-funded project.

2



See, e.g., S. Select Comm. on Nat’l Water Resources, S. Rep. No. 87–29, at 17–18 (1961); Nat’l Water Comm’n, Water Policies for the Future: Final Report to the President and to the Congress of the United States, chs. 10–11 (1973); W. Water Pol’y Rev. Advisory Comm’n, Water in the West: Challenge for the Next Century, 6–5 to 6–9 (1998), available at https://repository.unm.edu/dspace/handle/1928/2788.

3

See, e.g., Charles B. Bourne, The Development of International Water Resources: The “Drainage Basin Approach,” in International Water Law: Selected Writings of Professor Charles B. Bourne 3 (Patricia Wouters ed., 1997).

4

Gary D. Weatherford, From Basin to “Hydrocommons”: Integrated Water Management Without Regional Governance 1, 19–20 (Univ. of Colo. School of Law, Nat. Resources L. Ctr., W. Water Pol’y Project, Discussion Series Paper No. 5, 1990), available at http://www. h201awfirm.com/h.jsp.

5

See, e.g., Kansas v. Nebraska, 530 U.S. 1272 (2000) (No. 126, Orig.) and commentary on Article V, infra.

Article II Effective Date and Duration of Compact A. Effective Date This Compact, after legislative ratification by each of the signatory states, shall become operative upon the effective date of the congressional legislation granting consent to this Compact (unless that consent legislation provides otherwise), which contains language waiving the sovereign immunity of the United States from suit to permit the enforcement of the obligations of its agencies under this Compact and to determine the legal effect of federal legislation on the water apportionments and other programs authorized by this Compact and the powers of the Utton River Basin Commission (the Commission). B. Duration (1) The initial term of the Compact shall be 25 years from its effective date. No later than one year prior to the expiration of the initial or any renewal term, the Compact signatory parties shall notify the President and Congress whether they propose (a) an additional 25-year or other length term without any change in the Compact’s provisions; (b) an additional 25-year or other length term with certain amendments to the Compact, which shall have been approved by the signatory states and shall accompany the notification; or (c) termination of the Compact, accompanied by the proposed terms of such termination, which shall include, at a minimum, proposals to satisfy the requirements of Article II.B(2). Whichever option is exercised shall require congressional approval. (2) Termination of the Compact shall be subject to the following condi tions, at a minimum: (a) Satisfaction of all outstanding financial obligations of the Com mission; (b) Preservation of all valid existing rights derived from federal, state, or tribal law or this Compact in the waters covered by the Compact; and (c) Preservation of all environmental protection obligations assumed by the signatory parties or the Commission.

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Article II

C. Modification or Amendment This Compact may be modified or amended by action of the governing bodies of all of the signatory parties in accordance with applicable federal, state, or tribal law and with the consent of Congress. D. Individual Party Withdrawal Any signatory party may withdraw from this Compact upon two years’ notice to the other signatory parties, the President, and Congress, subject to the conditions set forth in Article II.B(2).

Article II Commentary Effective Date and Duration of Compact A. Waiver of the United States’ Sovereign Immunity The Model Compact would not become effective unless the constitutionally required congressional consent legislation waives the sovereign immunity of the United States so that (1) if the United States is a signatory party its compact obligations can be enforced, and (2) the legal effect of federal legislation on compact apportionments or programs can be ascertained so that the states can decide whether they wish to terminate the compact. There is a significant risk that if the United States does not become a signatory party to a compact it may nevertheless (1) be deemed to be an indispensable party to litigation by compact parties to enforce the compact, and (2) assert sovereign immunity against efforts to join it. Where the United States’ claims in a compact state are derived from state law, for example, federal reclamation project water rights, it is not an indispensable party.6 But it has been held to be an indispensable party where it exercises significant exclusive federal water allocation authority.7 Similarly, it was held to be an indispensable party in Texas v. New Mexico8 because it was trustee for Indian and Pueblo water rights in New Mexico that allegedly would have been impaired by the relief Texas was seeking under the Rio Grande Compact. If that decision is still good law, it might be difficult to sustain a compact enforcement suit in any interstate river basin containing Indian reservations unless the United States intervenes. In its most recent decision on the indispensability issue in an interstate context, Idaho v. Oregon & Washington,9 the Court held, however, that the United States’ ownership and operation of eight Bureau of Reclamation and Corps of Engineers dams on the Columbia River system did not make it indispensable where Idaho’s suit for equitable apportionment of interstate

6

Nebraska v. Wyoming, 325 U.S. 589, 629 (1945) (No. 6, Orig.).

7

Arizona v. California, 298 U.S. 558, 571 (1936) (the Secretary of the Interior has exclusive water allocation authority on the Lower Colorado River under the Boulder Canyon Project Act).

8

352 U.S. 991 (1957) (No. 9, Orig.).

9

444 U.S. 380 (1980) (No. 67, Orig.).

9

10

Article II fish resources did not complain of such operation.10 But would a compact state’s complaint about such operations or the United States’ administration of comprehensive regulatory programs significantly affecting water rights in a compact state, such as the Clean Water Act or the Endangered Species Act, make it indispensable?11 The customary practice in an interstate water dispute has been for the government not to intervene but to file an amicus curiae brief, simply informing and advising the Court of its views without getting into the fray. But since the United States has the responsibility to see that federal water development and environmental laws, as well as its trust responsibilities to Indian tribes, are implemented throughout an interstate basin, the authors strongly believe that the compact party states should have the opportunity to demonstrate that those statutes and trust obligations have a significant bearing on their congressionally approved compact apportionments and programs, particularly since the array of environmental statutes enacted by Congress over the past 35 years appears to have rendered the reliability of Supreme Court decreed rights and congressionally approved compact allocations questionable. Given the dominant role of the United States in almost all interstate river basins, ideally Congress should repeal subsection (c) of the McCarran Amendment, which provides that the Act’s sovereign immunity waiver for comprehensive intrastate river system water adjudications does not apply to “any suit or controversy in the Supreme Court of the United States involving the rights of States to the use of the water of any interstate stream.”12 Can the King really do no wrong on an interstate stream? Plainly not so, as Congress has recognized for 50 years in the Colorado River Basin where the Colorado River Storage Project Act of 1956 authorizes any Basin State to bring an action in the Supreme Court against the Secretary of the Interior for failure to comply with the Colorado River Compact and other aspects of the so-called Law of the River.13 There is no reason why a similar waiver should not be included in congressional consent legislation for all interstate compacts, and the Model Compact appropriately requires such a waiver.

10

Id. at 390–91.

11

See Maryland v. Louisiana, 451 U.S. 725, 745 n.21 (1981) (No. 83, Orig.) (“United States’ interests in the operation of the [Outer Continental Shelf Lands Act] and the [Federal Energy Regulatory Commission’s] interests in the operation of the Natural Gas Act are sufficiently important to warrant their intervention as party plaintiffs. . . . We have often permitted the United States to intervene in appropriate cases where distinctively federal interests, best presented by the United States itself, are at stake.”).

12

43 U.S.C. § 666(c) (2000).

13

43 U.S.C. § 620m (2000).

Commentary

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B. Sunset Limitation on Compact Duration The first interstate water allocation compact, the Colorado River Compact of 1922,14 made its interbasin apportionments in perpetuity. During the compact negotiations, Colorado River Commission Chairman Herbert Hoover (then Secretary of Commerce) warned the negotiators that “nothing lasts forever.” However, the Upper Basin states, knowing that they would develop much more slowly than the Lower Basin states, wanted their right to develop their apportionment permanently protected. Almost all subsequent compacts have similarly been of indeterminate duration, although the Delaware and Susquehanna compacts have 100-year terms, subject to renewal. Although compacting states have not provided for shorter compact terms or specific opportunities for review and amendment, Congress has often expressly reserved the right to revoke or amend its consent legislation when later circumstances so dictate, 15 although an express reservation of such power appears unnecessary.16 The Supreme Court has characterized the Constitution’s congressional consent requirement17 as designed to guard against “the formation of any combination tending to the increase of potential power in the states, which may encroach upon or interfere with the just supremacy of the United States.”18 The classic treatment of the “compact clause” by Harvard law professor (later

14



Colorado Compact, available at U.S. Dep’t of the Interior, Bureau of Reclamation, Lower Colorado Region, The Law of The River, http://www.usbr.gov/lc/region/g1000/lawofrvr. html (follow “The Colorado River Compact of 1922” hyperlink). See also Appendix B-11.

Consent legislation frequently contains language reserving to Congress the right to “alter, amend or repeal” the legislation. See, e.g., Appendix B-1, the Alabama-Coosa-Tallapoosa River Basin Compact, Pub. L. No. 105–105, § 3, 111 Stat. 2233, 2244 (1997); Appendix B-3, the Apalachicola-Chattahoochee-Flint River Basin Compact, Pub. L. No. 105–104, § 3, 111 Stat. 2219, 2231 (1997); Appendix B-4, the Arkansas River Basin Compact of 1965, Pub. L. No. 89–789, § 107(b), 80 Stat. 1409, 1415 (1966); Appendix B-5, the Arkansas River Basin Compact of 1970, Pub. L. No. 93–152, § 3, 87 Stat. 569, 576 (1973); Appendix B-9, the Canadian River Compact, ch. 306, § 2, 66 Stat. 74, 78 (1952); Appendix B-14, the Delaware River Basin Compact, Pub. L. No. 87–328, pt. II, art. 15.1(q), 75 Stat. 688, 715 (1961); Appendix B-16, the Jennings Randolph Lake Project Compact, Pub. L. No. 104–176, § 2, 110 Stat. 1557, 1562 (1996); Appendix B-33, the Susquehanna River Basin Compact, Pub. L. No. 91–575, § 2(p), 84 Stat. 1509, 1539 (1970); Vermont-New Hampshire Interstate Public Water Supply Compact, Pub. L. No. 104–126, § 2, 110 Stat. 884, 886 (1996). 15

16

Louisville Bridge Co. v. United States, 242 U.S. 409, 418 (1917) (“The absence of an express reservation of the right to alter or amend is not conclusive.”).

17

U.S. Const. art. I, § 10, cl. 3.

18

Virginia v. Tennessee, 148 U.S. 503, 517–19 (1893) (No. 3, Orig.) (quoted in New Hampshire v. Maine, 426 U.S. 363, 369 (1976) (No. 64, Orig.)).

12

Article II Supreme Court Justice) Felix Frankfurter and Harvard Law School Dean James Landis in 1925 described the “practical objectives” of the consent clause as follows: [A]greements may affect the interests of States other than those parties to the agreement: the national, and not merely a regional, interest may be involved. Therefore, Congress must exercise national supervision through its power to grant or withhold consent, or to grant it under appropriate conditions. The framers thus astutely created a mechanism of legal control over affairs that are projected beyond State lines and yet may not call for, nor be capable of, national treatment. They allowed interstate adjustments but duly safeguarded the national interest.19 It seems obvious that what may have been viewed as in the national or regional interest decades ago might not be so viewed today. But almost all of the existing compacts and federal consent statutes are for indeterminate periods with no provision for mandatory periodic review by either the compact states or Congress to evaluate how well the compacts are working and whether changes may be necessary in the regional or national interest. But just as a compact may at some point become no longer in the national interest and require amendment by Congress of its consent legislation, so also may changed circumstances convince one or more of the signatory states that their pact no longer serves their mutual interests. Hence, there was general agreement among the Advisory Committee members on the desirability, indeed necessity, for a sunset provision. Article II gives the states several reasonably flexible options after the proposed initial 25-year term and their failure to exercise any of them would result in automatic termination of their agreement. Some commenters considered this period too short and suggested that it might frustrate recoupment of the costs of large-scale projects, but any amendment or termination of a compact at any time would necessarily have to protect existing rights and honor outstanding obligations.

C. Individual Party Withdrawal

Even with a sunset provision, dispute resolution procedures, and the possible opportunity for a signatory state to block certain major Commission actions depending on whether the Commission decides that some categories of Commission decisions or actions may require unanimous approval, some states, tribes, or the United States may nevertheless be reluctant to

19



Felix Frankfurter & James M. Landis, The Compact Clause of the Constitution—A Study in Interstate Adjustments, 34 Yale L.J. 685, 695 (1925).

Commentary

13

become signatory parties to a compact, perhaps fearing the possible loss of some degree of sovereignty or “turf ” such participation might entail or that a majority of parties might take action adverse to their interest. Although the authors believe that such fears are outweighed by the benefits that would flow from the ability to take collective action on regional problems and the realization that although certain action by the Commission might be distasteful to some parties, the only alternative to non-participation would be to face the same consequences in interstate litigation or federal enforcement of certain compact objectives. Nevertheless, some parties may disagree and would prefer to discontinue their participation in the compact approach. If so, they should have the opportunity to do so upon reasonable notice to their partners (the authors suggest two years) and subject to any obligations they may have assumed under the compact. If a state should give notice of its intention to withdraw, it is reasonable to assume that discussions and action by the other parties might be initiated to address the cause of the proposed withdrawal and for the discontented party to reconsider the benefits and detriments of such withdrawal and perhaps abandon that course of action. If one of the factors prompting withdrawal is something that might have adverse impacts on the other compact parties, the cost and risk of having to later litigate that issue would have to be carefully considered. Similar language is found in a number of existing interstate agreements.20 To the best of the authors’ knowledge, no state has withdrawn from those compacts nor has the United States withdrawn from the Delaware and Susquehanna compacts. In any event, the authors believe that withdrawal by a state would be rare because “going it alone” in a basin seems likely to be far less beneficial to a state’s interest for a variety of reasons than continuing to work cooperatively within the compact framework, as Arizona concluded after 15 years of refusing to ratify the Colorado River Compact.21

20



21

For example, Article V of the Chesapeake Bay Commission Agreement, Appendix B-10, allows a state to withdraw from the agreement by act of its legislature. Va. Code Ann. § 30–253 (2004). Similar language is found in other compacts. See, e.g., Appendix B-15, the Great Lakes Basin Compact, art. VIII, 82 Stat. 414, 418 (1968); Appendix B-16, the Jennings Randolph Lake Project Compact, art. V.5.7, 110 Stat. 1557, 1561 (1996); Appendix B-25, the Potomac River Basin Interstate Compact, art. VII, 84 Stat. 856, 860 (1970); Appendix B-34, the Tennessee River Basin Water Pollution Control Compact, art. XIII, 72 Stat. 823, 827 (1958); Appendix B-39, the Wabash Valley Compact, art. VII, 73 Stat. 694, 698 (1959). In addition, Appendix B-14, the Delaware River Basin Compact, art. 1, § 1.4, 75 Stat. 688, 691 (1961), and Appendix B-33, the Susquehanna River Basin Compact, art. 1, § 1.4, 84 Stat. 1509, 1512 (1970), allow Congress “to withdraw the federal government as a party to this compact. . . .”

See Arizona v. California, 373 U.S. 546, 558, n.24 (1963) (No. 8, Orig.).

14

Article II One commenter considered the withdrawal option a bad idea given the time, effort, and expense of putting a compact together, but those same considerations also might well dictate a decision by a disgruntled party not to withdraw. More important, moreover, is that if the withdrawal option is what it takes to persuade a reluctant party to participate in the first place, it should be available. An intriguing argument has been made as to how a state might in any event “escape an unsatisfactory compact allocation and obtain a more favorable one.”22

22



See Douglas L. Grant, Interstate Water Allocation Compacts: When the Virtue of Permanence Becomes the Vice of Inflexibility, 74 U. Colo. L. Rev. 105, 109 (2003).

Article III Definitions As used in this Compact or in any order, rule, regulation, or guideline issued pursuant to this Compact, the following definitions shall apply. A. Advisory Committee: The multi-interest, multi-disciplinary committee the Commission is required to establish comprised of representatives of the general public with recognized interests in the water resources of the Utton River Basin for beneficial purposes, regional representatives of federal water resources agencies with programs in the Basin, and academicians or private consultants with recognized expertise in specific water resourcerelated disciplines. B. Base Apportionments: The interstate allocations of Utton River Basin flows made by the Compact to each signatory state for (1) the maintenance of adequate stream flows for environmental purposes, and (2) satisfaction of all state, federal, and tribal water rights perfected under applicable law as of the effective date of the Compact. C. Chargeability: Flow usage subjecting a state’s base and supplemental apportionments to debiting as a result of its dedication to flow maintenance or reasonable beneficial consumptive use. D. Commission: The administrative entity with final authority to administer this Compact, comprised of the governors of each signatory state, a Tribal representative, and a federal representative. E. Conjunctive Use: The coordinated use of surface and subsurface waters of the Basin and its natural and artificial reservoirs to make optimum use of such waters and facilities. F. Council: The Commission’s basic policymaking unit, comprised of state, fed eral, and Tribal representatives. G. Dispute Resolution: The procedures and guidelines for facilitating resolution of disputes among the signatory parties, either by (1) agreement or (2) administrative determination, as to the meaning of the Compact or the legal effect of actions taken under it.

15

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Article III

H. Division of Scientific Analysis: The unit of the Commission with responsibility for the development and evaluation of scientific and technical data needed or useful in administering the Compact. I. Perfected Water Right: A water right (1) acquired in accordance with state law that has been exercised by the actual diversion and/or beneficial use of a specific quantity of water in accordance with state law, or (2) created by a reservation under federal law of an amount of uncommitted water reasonably necessary to serve the primary purposes of specific federal establishments or programs. J. Reasonable Beneficial Use: The application of water to a beneficial use in an amount reasonably necessary to satisfy such use under state, federal, or tribal law. K. Safe Annual Yield: The amount of water that can be withdrawn annually from a surface or subsurface water resource without serious water quality, net storage, environmental, or social consequences. L. Species and Habitat Protection: The maintenance of stream flows adequate to maintain a productive habitat for the preservation of the normal evolutionary development of identifiable species and their habitat. M. Subsurface Water: All waters below the surface of the ground whether or not hydrologically connected to surface waters. N. Supplemental Apportionments: Apportionments made by the Commission to one or more signatory states from waters determined by the Commission to be surplus to the base apportionments made by the Compact. O. Water Quality Protection Program: The allocation and implementation of authority between the signatory states and the Commission to meet the requirements of the Clean Water Act on the Basin’s intrastate tributaries and the interstate main stem of the Utton River Basin, respectively. P. Water Resources Management Program: The Commission’s coordination and assistance to the signatory parties’ development of water supplies adequate to meet the Basin’s long- and short-term water requirements.

Article III Commentary Definitions Sections containing definitions are common features of interstate water compacts. These sections reflect one of two approaches to the need to provide applicable definitions. One approach is to include a long list of compact terms and the definitions of those terms. The alternative approach is to include relatively few definitions and to authorize whatever administrative entity is created by the compact to define additional terms as needed. In either case, accurate and clearly stated definitions are important to the success of an interstate water compact. The Model Compact reflects the second approach. Of the terms used in the Model Compact, only sixteen are defined. Under Article IV.B(3)(a), the Commission has the authority to define additional terms if the Commission determines that such definitions are necessary. It is the opinion of the authors that this approach is preferable to the alternative mentioned above. Given that interstate compacts once ratified become both state and federal law, any change to the provisions of a compact would require the compact to be amended. This in turn would require both state and federal approval, a time-consuming process that has been used relatively infrequently. If a large number of terms are defined in the compact, however, a revision to the definition of any of the terms would require the compact to be amended. An ongoing theme identified both by the Advisory Committee and in the literature is the need for compact administrative entities to have sufficient discretion, authority, and flexibility to respond to changing conditions.23 Having a large number of terms defined in the compact could have the effect of restricting the flexibility needed by the administrative entity. The terms that are defined in the Model Compact fall into two general categories. The first category includes terms that relate to the structure and function of the Commission. This category includes definitions for the Advisory Committee (Article III.A), the Commission (Article III.D), the Council (Article III.F), dispute resolution (Article III.G), the Division of Scientific Analysis (Article III.H), the Water

See, e.g., Kyle E. Schilling, The Future for Water Resources Planning and Decision Making Models, Water Resources Update, No. 111, Spring 1998, at 62; Douglas Kenney, Institutional Options for the Colorado River, 31 Water Resources Bull. 837 (1995) [hereinafter Kenney, Institutional Options]. See also Lawrence J. MacDonnell et al., The Law of the Colo rado River: Coping with Severe Sustained Drought, 31 Water Resources Bull. 825 (1995). 23

17

18

Article III

Quality Protection Program (Article III.O), and the Water Resources Management Program (Article III.P). The second category includes terms relevant to the apportionment and management of interstate water resources. Included within this category are definitions for base apportionments (Article III.B), chargeability (Article III.C), conjunctive use (Article III.E), perfected water right (Article III.I), reasonable beneficial use (Article III.J), safe annual yield (Article III.K), species and habitat protection (Article III.L), subsurface water (Article III.M), and supplemental apportionments (Article III.N).

Article IV The Utton River Basin Commission A. Establishment and Structure

The rights and obligations established by this Compact and the programs authorized by it shall be implemented, supervised, and enforced by an interstate administrative entity entitled the Utton River Basin Commission (the Commission). The Commission shall be supported internally by a Council and a Division of Scientific Analysis (the Division) to which certain Commission authorities and responsibilities are delegated herein.

B. The Commission (1) Members of the Commission The members of the Commission shall be (a) the governors of the signatory states, (b) a single Tribal representative of all Indian tribes holding adjudicated water rights to Basin waters or who are parties to water rights settlement agreements, to be selected by such tribes, and (c) a federal representative with recognized expertise in water resources management appointed by the President after consultation with the federal departments and independent agencies carrying out programs in the Basin. The federal representative shall actively participate in the Commission’s deliberations and shall coordinate the views of all federal agencies in the Basin with water related development, management, or regulatory responsibilities and present a single, coordinated federal position, including non-binding suggestions, comments, and recommendations, in the Commission’s deliberations on matters before it. Each member of the Commission shall designate an alternate to serve in his/her place when necessary, selected in accordance with applicable law. (2) Chair of the Commission The Commission shall have a rotating chair, selected from the membership of the Commission at its organizational meeting, for such term and with such responsibilities and provisions for succession as the Commission may provide. (3) General Powers of the Commission With regard to the waters subject to this Compact, the Commission shall

19

20

Article IV

have the power, under the laws of the signatory parties or this Article, whichever is broader, to: (a) Adopt rules, regulations, and bylaws as needed to implement this Compact and to govern the conduct of the Commission. (b) Sue and be sued in any court of competent jurisdiction. (c) Enter into agreements or contracts, where appropriate, in order to accomplish the purposes of this Compact. (d) Appoint an executive director authorized to employ necessary professional, technical, clerical, and other staff and consultants and fix their qualifications, duties, compensation, and status with the goal of maintaining a high level of executive and technical expertise on a continuing basis. (e) Create committees, subcommittees, and special advisory groups and delegate responsibilities thereto. (f) Financial: (i) Seek and accept funds, services, or other forms of aid from any lawful source. (ii) Borrow money. (iii) Issue negotiable bonds and other evidences of indebtedness in accordance with the laws of any of the signatory parties. (aa) All such bonds and evidences of indebtedness shall be payable solely out of the properties and revenues of the Commission. (bb) The Commission shall have no power t0 pledge the credit of any signatory party or its political subdivisions. (iv) Levy and collect taxes and special assessments by any one or more of the following methods upon property benefited by any Commission project or program: (aa) By a percentage of the tax value of the property assessed; (bb) In proportion to the benefits that result from the project; or (cc) By the foot front of the property bounding and abutting upon the project. (v) Establish a basin fund into which revenues could be deposited at the discretion of the Commission. (vi) Expend funds for any lawful purpose. (g) Develop and implement the Water Quality Protection Program and the Water Resources Management Program provided for in Articles VI and VII, respectively. (h) Monitor compliance with the interstate water apportionments and enforce apportionment ceilings and reasonable beneficial use limitations.

The Utton River Basin Commission

21

(i) Monitor water quality in accordance with applicable Clean Water Act requirements. (j) Monitor land use activities affecting water quality. (k) Facilitate and exercise approval authority with respect to voluntary interstate and interbasin water transfers, water marketing, and water banking. (l) Acquire (including through the use of its independent eminent domain authority), construct, operate, and maintain projects, facilities, properties, licenses, activities, and services determined by the Commission to be necessary, convenient, or useful for the purposes of this Compact, and charge user fees for the use of same; provided that the Commission shall not construct or undertake any project that has been included in the Water Resources Management Program that one or more signatory parties are willing to construct or undertake in accordance with that program. (m) Establish recommended standards of planning, design, and operation of projects and facilities in the Basin that substantially affect interstate water resources, including, without limitation, water diversion and storage facilities, desalination facilities, water and waste treatment plants, trunk mains for water distribution, flood protection, watershed management programs, and subsurface water recharging operations. (n) Conduct and sponsor research on relevant aspects of present and future water resources use, conservation, management, development, control, and protection. (o) Compile and coordinate systematic stream stage and sub-surface water level forecasting data (including gauging where appropriate) and publicize such information as needed for water uses, flood warning, quality maintenance, or other purposes. (p) Participate with other governmental and non-governmental entities in carrying out the purposes of this Compact. (q) Participate in any federal, state, or tribal executive, legislative, or judicial proceeding, the result of which may have an effect on the purposes of this Compact. (r) Interpret ambiguous Compact provisions. (s) Take action on matters not expressly addressed by the Compact or the federal consent legislation and exercise authority as necessary, appropriate, and relevant to carry out the basic Compact purposes that does not conflict with such purposes, any express Compact provision, or other federal law.

22

Article IV

(t) Exercise such additional powers and duties as may hereafter be delegated to or conferred upon it by the legislatures of the signatory states and Congress. In exercising the foregoing powers, the Commission is directed to utilize, to the fullest extent it finds feasible and advantageous, such existing governmental agencies as are willing and able, in the Commission’s judgment, to be so utilized. (4) Principal Duties of the Commission The Commission shall exercise final authority and responsibility for (a) the equitable, efficient, and sustainable use of the water apportionments; (b) the management of the water quality programs under this Compact; and (c) the management of the water resources programs under this Compact. It shall instruct, advise, and assist, as appropriate, the Council and Division in carrying out their delegated responsibilities.

C. The Council (1) The Council shall be comprised of the two highest ranking state officials from each signatory state overseeing water allocation and management and water quality regulation, two Tribal representatives with expertise in water allocation and water quality regulation selected by the Basin tribes, and two federal representatives selected by the Commission’s federal representative from federal agencies with significant programs in the Compact’s jurisdiction. It shall be chaired by a Secretary appointed by the Commission. (2) The Council’s duties shall include: (a) Preparation and implementation of the Water Quality Protection Program and the Water Resources Management Program provided for in Articles VI and VII, respectively. (b) Determination of water available for supplemental apportionment under Article V.D and the terms, conditions, and price for such apportionments. (c) Review for approval proposed water diversion, storage, or treatment projects with significant interstate effects, interstate and interbasin water transfers, water marketing, or water banking. (d) Enforcement of Commission programs and orders. (e) Coordination of Commission action with state and federal agencies. (f) Addressing disputes referred to it by the Commission. (g) Recommending possible adjustments to existing and proposed apportionments. (h) Any other duties assigned to it by the Commission.

The Utton River Basin Commission

23

D. The Division of Scientific Analysis (1) Division membership shall be composed of an equal number of members from each signatory party. Members must have recognized expertise in surface and subsurface water hydrology and modeling, operation of water storage and diversion projects, water resource economics, water quality, and fish and wildlife. (2) The Division’s primary duties shall be to provide multi-disciplinary scientific and technical support to the Commission and the Council, including the following: (a) Monitoring compliance with the Compact apportionments provided for in Article V, the Water Quality Protection Program and the Water Resources Management Program provided for in Articles VI and VII, respectively, and recommending possible adjustments thereto based on new economic, demographic, hydrologic, and environmental data. (b) Review of proposed water storage and diversion projects for economic benefits and costs, environmental impacts, and consistency with Commission programs. (c) Development of a basinwide species and habitat protection and recovery program designed, to the maximum extent practicable, to preclude the need to list a species as threatened or endangered under the Endangered Species Act or similar state or tribal laws. (d) Coordination with appropriate state, tribal, and federal agencies of the operation of projects covered by the Commission’s Water Resources Management Program with respect to storage and releases of project water for water supply, flow maintenance, power generation, and flood control purposes. (e) Establishment of a data bank of essential and reliable technical and scientific data for use in the administration of the Compact and utilization of such data in appropriate numeric models. (i) The Division may (1) request the signatory parties to develop such data on a uniform basis, (2) utilize data developed by federal agencies or academic institutions, (3) develop it independently, or (4) rely on combinations thereof. (ii) Upon request of a Division member, any of the data that the Division proposes to utilize to carry out its duties shall be referred to one or more technical or scientific experts for peer review. (iii) The Division’s generation, acceptance, review, and utilization of any data in the Commission’s programs shall create a

24

Article IV

rebuttable presumption of validity in Commission dispute resolution proceedings or administrative or judicial litigation. (f) Any other duties assigned to it by the Commission.

E. Commission, Council, and Division Decisions (1) A Commission decision on any matter shall constitute final agency action on that matter. (2) A decision by either the Council or the Division on matters within their jurisdiction shall constitute final action of the Commission 60 days thereafter unless (a) either unit refers it to the Commission for approval within 30 days, or (b) the Commission requests within 60 days that the matter be referred to it for review. Any signatory party may petition the Commission to review a Council or Division decision within 30 days of the decision.

F. Meetings and Voting (1) The Commission shall establish rules for the frequency, notification, and conduct of all meetings of the Commission, Council, Division, and Advisory Committee. Except as provided in Article XI.B(3), all meetings with the Advisory Committee or for the purpose of obtaining other views or information and for such other purposes as the Commission may provide shall be open to the public, subject to any exceptions under state, tribal, or federal law. (2) The attendance of a majority of the members of the Commission, Council, or Division, including the tribal and federal representatives, at a meeting of such entity shall constitute a quorum. (3) The Commission shall establish by unanimous decision the categories of Commission decisions requiring either unanimous or lesser votes. Tie votes on the Commission shall be referred for dispute resolution pursuant to Article VIII. (4) Decisions by the Council shall be by majority vote of eligible voting representatives. Tie votes on the Council shall be resolved by vote of the Council Secretary. (5) Decisions by the Division shall be by majority vote of eligible voting representatives. Tie votes on the Division shall be referred to the Council for resolution.

Article IV Commentary The Utton River Basin Commission A. Establishment and Structure

Article IV.A of the Model Compact provides for the establishment and structure of the Commission. Though not every interstate water compact will necessarily require the establishment of a commission,24 experience suggests that some type of administrative entity will be required for implementation of most compacts. The Commission can be downsized or reconfigured to the needs of a smaller basin with fewer or more modest programs. The approach embodied in the Model Compact, particularly with regard to program and decisional responsibilities, is modeled loosely on the MurrayDarling River Basin Agreement of 1992 among four Australian states (New South Wales, Queensland, South Australia, and Victoria), the Australian Capital Territory, and the Commonwealth of Australia. 25 Analogous to

24



See, e.g., Appendix B-19, the La Plata River Compact, 43 Stat. 796 (1925). See also Kenneth W. Knox, The La Plata River Compact: Administration of an Ephemeral River in the Arid Southwest, 5 U. Denv. Water L. Rev. 104 (2001) [hereinafter Knox, La Plata River Compact].

The Murray-Darling Basin (MDB) covers over one million square kilometers or 14 percent of Australia. It is an arid region where both rainfall and river flows are highly variable. The Commonwealth of Australia (the national government) does not manage either intrastate or interstate water uses or regulate water quality. Authority vests with the state governments, which have sovereign powers over land, water, and natural resources. The water rights system has been both established and maintained by the states. In addition, environmental protection (including water quality) also falls within the sovereign powers of the states. For a detailed discussion of the Murray-Darling River Basin Agreement, see Darla Hatton MacDonald & Mike Young, A Case Study of the MurrayDarling Basin: Final Report for the International Water Management Institute 28–30 (rev. Feb. 2001), http://www.clw.csiro.au/publications/consultancy/2001/ MDB-IWMI.pdf; William A. Blomquist et al., Institutional and Policy Analysis of River Basin Management: The Murray Darling River Basin, Australia 9–11 (World Bank Pol’y Res. Working Paper 3527, 2005), http://papers.ssrn.com/s013/papers.cfm?abstract_ id=673519; Jonathan L. Chenoweth & Hector M. Malano, Decision Making in MultiJurisdictional River Basins—A Case Study of the Murray-Darling Basin, 26 Water Int’l 301 (2001); John Quiggin, Risk and Water Management in the Murray-Darling Basin 14–15 (Univ. of Queensland Schools of Econ. & Pol. Sci., Murray Darling Program Working Paper M05#4, 2005), http://www.uq.edu.au/economics/rsmg/WP/WPM05_4. pdf; John J. Pigram & Warren F. Musgrave, Sharing the Waters of the Murray-Darling Basin: Cooperative Federalism Under Test in Australia, in Conflict and Cooperation on Trans-Boundary Water Resources 131 (Richard E. Just & Sinaia Netanyahu eds., 1998) [hereinafter Conflict and Cooperation]. 25



25

26

Article IV the authority of the Utton River Basin Commission, policies applicable in the Murray-Darling Basin (MDB) are established by the MDB Ministerial Council. Each of the aforementioned governmental entities is represented on the Ministerial Council. Unanimous consent is required for the establishment of policies by the Ministerial Council. The prime functions of the Ministerial Council are (a) generally to consider and determine major policy issues of common interest to the Contracting Governments concerning effective planning and management for the equitable efficient and sustainable use of the water, land and other environmental resources of the Murray-Darling Basin; (b) to develop, consider and, where appropriate, to authorise measures for the equitable, efficient and sustainable use of such water, land and other environmental resources; (c) to authorise works as provided for in [this Act]; (d) to agree upon amendments to this Agreement including amendments to or addition of Schedules to this Agreement as the Ministerial Council considers desirable from time to time; (e) to exercise such other functions as may be conferred on the Council by this Agreement or any amendment or any Act approving the same.26 The Ministerial Council acts through the MDB Commission, which is also comprised of representatives of the different governments, as is the counterpart Model Compact Council. Implementation of Ministerial Council policies, however, is generally the responsibility of the states, as is the case under the Model Compact. The Commission is an autonomous organization equally responsible to the governments represented on the Ministerial Council as well as to the Council itself. It has several key functions, which include (1) advising the Ministerial Council in relation to the planning, development, and management of the Basin’s natural resources; (2) assisting the Council in developing measures for the equitable, efficient, and sustainable use of the Basin’s natural resources; (3) coordinating the implementation of or, where directed by Council, implementing those measures; and (4) giving effect to any policy or decision of the Ministerial Council. The Model Compact is designed to vest ultimate authority in the governors and other representatives of the signatory parties serving on the

26



Murray-Darling Basin Agreement, 1992, pt. III, cl. 9, included in Murray-Darling Basin Act, 1993, Schedule (Austl.), available at http://scaleplus.law.gov.au (search for “MurrayDarling Basin Act 1993”).

Commentary

27

Commission. However, rather than employing a common practice of having the state administrators with water management responsibilities serve as the governors’ alternates on the administrative entity, the state administrators serve a principal policymaking role in their own right on the Council (Article IV.C). The Division (Article IV.D) elevates the role of science in the compact structure from a largely staff responsibility to a higher level of authority coequal in its realm to the policymaking role of the Council. In essence, the Council and the Division make Commission policy and decisions within their respective areas of responsibility and the Commission only acts directly when it assumes jurisdiction over important policy issues or such issues as are brought before it via appeals from Council or Division actions. This approach is similar to the federal judicial system in which federal decisional law is made by the United States Courts of Appeals unless the Supreme Court exercises its superior decisional authority on a discretionary basis.

B. Commission Members

The Commission is comprised of the governors of the signatory states (Article IV.B(1)(a)), a single Tribal representative if there are tribes in the basin with adjudicated water rights (Article IV.B(1)(b)), and a federal representative (Article IV.B(1)(c)). Indian tribes enjoy a special, judicially recognized sovereign status and hold or claim substantial water rights throughout the West. Consequently, it is both equitable and essential that they collectively be represented in any compact governance institution in a voting capacity by a representative of their choice.27 The Tribal representative would be selected by the tribe or tribes holding adjudicated water rights or who are parties to water rights settlement agreements in the basin covered by the Model Compact.28 The federal representative, who would be appointed by the President after consultation with federal departments and independent agencies having programmatic responsibilities in the Basin, should be a person with recognized expertise in the allocation and management of water resources. The role of the federal representative, which would include coordination and representation of the views and interests of the aforementioned federal departments and independent agencies, could be further defined in terms of the needs of specific basins. With regard to voting, for example, the federal representative could have no vote, full voting status, limited voting status

27

28

The Advisory Committee and the authors were advised by a tribal member of the Committee that such an arrangement has worked effectively in the Columbia River Basin. An alternative, should the tribes be unable to agree on a single representative, could be for the Secretary of the Interior to appoint the representative.

28

Article IV (i.e., only on matters directly affecting a federal interest in the Basin waters), or a tie-breaker status.29

C. General Powers of the Commission

During preparation of the Model Compact, in response to the criticism that existing compacts typically do not grant sufficient authority to a compact commission,30 the Advisory Committee made it clear that the Commission needed powers broad enough to accomplish the purposes of the Compact. Another dominant theme identified in the literature is the need for interstate administrative entities like the Commission to have sufficient discretion, authority, and flexibility to respond to changing conditions.31 This is particularly true with regard to both drought and the impacts of global

The federal representative is authorized to vote in several compacts. See, e.g., Appendix B-14, the Delaware River Basin Compact, art. 2, 75 Stat. 688, 691 (1961); Appendix B-33, the Susquehanna River Basin Compact, art. 2, 84 Stat. 1509, 1512–13 (1970); Appendix B-37, the Upper Colorado River Basin Compact, art. VIII, 63 Stat. 31 (1949). Other compacts provide a third-party tiebreaking procedure when there is not agreement between the two state parties to those compacts. See, e.g., Appendix B-18, the Klamath River Basin Compact, art. IX.A.10, 71 Stat. 497, 504 (1957); Appendix B-30, the Sabine River Compact, art. VII(j), 68 Stat. 690, 696 (1954), as amended, 76 Stat. 34 (1962), 106 Stat. 4600, 4662 (1992); Appendix B-31, the Snake River Compact, art. VI, 64 Stat. 29, 31–32 (1950); Appendix B-41, the Yellowstone River Compact, art. III, 65 Stat. 663, 665–66 (1951). The political dimensions of alternative voting provisions are addressed in Zachary L. McCormick, Interstate Water Allocation Compacts in the Western United States—Some Suggestions, 30 Water Resources Bull. 385, 390 (1994) [hereinafter McCormick, Interstate Water Allocation]. 29



30

With regard to the authority of compact commissions, for example, Professor Davis has noted that “compacts typically do not grant broad enough authority.” Ray Jay Davis, Guidelines for Interstate Water Compacts [hereinafter Davis, Guidelines] in Integrated Water Resources Planning for the 21st Century: Proceedings of the 22nd Annual Conference 189, 190 (Michael F. Domenica ed., 1995) [hereinafter Integrated Water Resources Planning] (citing Jerome C. Muys, Allocation and Management of Interstate Water Resources: The Emergence of the Federal-Interstate Compact, 6 Denv. J. Int’l L. & Pol’y 307 (1976)). Professor Davis also notes that “[d]ispute resolution, enforcement powers, and sanctions also are not now well articulated in many compacts.” Id. at 190–91 (citing Richard A. Simms et al., Interstate Compacts and Equitable Apportionment, 34 Rocky Mt. Min. L. Inst. 23–1 (1988)).

31

A summary of the literature regarding the need for flexibility in order to be able to respond to changing conditions is contained in James Perry Hill, Managing the Nation’s Waters Without Washington: The Interstate Compact Experience 68–70 (unpublished Ph.D. dissertation, Michigan State University, 1992).

Commentary

29

climate change.32 The proposed powers contained in Article IV.B(3) fulfill these requirements as well as providing a comprehensive menu that may be tailored to fit a compact’s purposes. A number of the enumerated powers are of particular note. For example, Article IV.B(3)(k) authorizes the Commission to “[f]acilitate and exercise approval authority with respect to voluntary interstate and interbasin water transfers, water marketing and water banking.” The use of such mechanisms is an important means of more efficiently managing available water supplies at the basin level that are not expressly available under existing compacts. Several commenters have observed that the ability to obtain expert assistance is critical to the allocation and management of interstate water resources. With regard to the Costilla Creek Compact, for example, one of the members of the Advisory Committee has observed that the ability to employ engineering assistance was necessary to properly administer the Compact.33

Both the Advisory Committee and numerous recognized experts have argued that any type of “basin authority” responding to severe sustained drought must be authorized to study water supply and demand issues, to develop basinwide water plans, and to facilitate water transfers, including water marketing, and that all stakeholders need to be represented when the “basin authority” exercises these powers. See, e.g., Lawrence J. MacDonnell et al., The Law of the Colorado River: Coping with Severe Sustained Drought, 31 Water Resources Bull. 825 (1995). Likewise, it has been noted that institutional entities in such situations need broad, flexible powers, especially with regard to water conservation, water use efficiency, reallocation of existing supplies, and the use of market mechanisms. To achieve this, Kenney describes six key characteristics of such institutional entities: (1) recognition of a wide variety of values and interests with opportunities for stakeholder participation, (2) promotion of ecological integrity, (3) consideration of a wide range of management options and strategies, (4) provision of timely and accurate information, (5) implementation of decisionmaking mechanisms that facilitate public participation and provide clear outcomes, and (6) recognition of the regional character of water resources. Kenney, Institutional Options, supra note 23, at 839. With regard to system operations, the need for flexibility during periods of drought is illustrated in Julie E. Kiang & Erik R. Hagen, Preparing for Extreme Droughts: Moving Beyond the Historical Planning Event, Potomac Basin, in Critical Transitions in Water and Environmental Resources Management: Proceedings of the World Water and Environmental Resources Congress (Gerald Sehlke et al. eds., 2004) [hereinafter Critical Transitions]. Accord Schilling, supra note 23, at 66. 32



See Kenneth W. Knox, The Costilla Creek Compact, 6 U. Denv. Water L. Rev. 453, 470 (2003) [hereinafter Knox, Costilla Creek Compact]. Accord Charles T. DuMars, Interjurisdictional Compacts as Tools for Watershed Management (paper presented at the A.B.A. Section of Env’t, Energy & Resources 19th Ann. Water L. Conf., San Diego, Cal., 2001). 33



30

Article IV Article IV.B(3)(d) authorizes the Commission to retain “professional, technical, clerical and other staff and consultants” as needed. Article IV.B(3)(f)(iv) authorizes the Commission to “[l]evy and collect taxes and special assessments.”34 Given that a principal purpose of the Compact is to empower a regional entity to exercise or supplement some of the powers traditionally exercised by basin states or the federal government, there is no persuasive reason why regional beneficiaries should not be subject to an equitable level of direct taxation to fund the regional entity’s operations. Similar language, however, does not appear to be contained in any of the existing interstate water compacts. The provisions of Article IV.B(3)(g) and (i) provide the authority that the Commission would need to address the problem of interstate water pollution. Article IV.B(3)(g) authorizes the Commission to develop and implement the Water Quality Protection Program authorized under Article VI. Furthermore, Article IV.B(3)(i) authorizes the Commission to monitor water quality pursuant to applicable Clean Water Act requirements. Also of note are the provisions of Article IV.B(3)(l) regarding the acquisition of property and the charging of fees for the use of such property. The language contained in the Model Compact reflects the recommendations of the Advisory Committee that the administrative entity rely primarily on existing state powers but also have broader or alternative powers to accomplish jointly what states cannot do individually. The latter recommendation is also reflected in Article IV.B(3)(p) regarding Commission participation with other governmental and non-governmental entities. There is general agreement that the first critical steps in the allocation and management of any interstate water resource are the development of both a “common set of data” and appropriate models of the resource.35 [H]ydrology of the water resource is a place to start consideration of sharing. Analysis of the water resource includes the annual and seasonal flow in various reaches of the stream and its tributaries, variation (flood and drought potential), ground water availability, water contributions from each jurisdiction, dependency of each

34

35



The language included in the Model Compact is adapted from the Ohio Revised Code. Ohio Rev. Code Ann. §§ 6119.06(I), 6119.42 (LexisNexis 2003) (authority of regional water and sewer districts). See, e.g., DuMars, supra note 33, at 329. The “shared vision planning process” (including use of the HEC-PRM optimization model and the STELLA simulation model) is discussed in Hal Cardwell et al., Collaborative Models for Planning in the Mississippi Headwaters, in Critical Transitions, supra note 32. The “shared vision planning process” and other models are discussed in Schilling, supra note 23, at 66–67.

Commentary

31

entity on the water resource, and availability of water from other sources. In addition to the water resource, decision makers should consider land resources (geographic conditions in each jurisdiction), atmospheric resources (weather and climate in the river basin), and human resources—population, economic needs and abilities, including capacity to develop the water and alternative sources and to compensate for use, and sociological considerations.36 The Commission would have ample authority to accomplish these tasks under Article IV.B(3). One of the recommendations of the Advisory Committee, that the Commission “needs to be oriented toward the future, to have the capability of foresight,” is reflected in Article IV.B(3)(o). Another recommendation is followed in Article IV.B(3)(n), which provides authority for the Commission to conduct and sponsor research.

D. The Council

The Council is authorized to prepare and implement the Water Quality Protection Program and Water Resources Management Program of the Commission (Article IV.C(2)(a)) to determine the amount of water available for supplemental apportionment as well as the terms, conditions, and price for such apportionments (Article IV.C(2)(b)); to review proposed water diversion, storage, or treatment projects (including water transfers, marketing, and banking) having significant interstate impacts (Article IV.C(2)(c)); to enforce Commission programs and orders (Article IV.C(2)(d)); to coordinate Commission actions with state and federal agencies (Article IV.C(2)(e)); to address disputes referred to it by the Commission (Article IV.C(2)(f)); and to recommend possible adjustments to existing and proposed apportionments (Article IV.C(2)(g)). The Council is also authorized to undertake any other duties assigned to it by the Commission (Article IV.C(2)(h)).

E. The Division of Scientific Analysis

There was strong consensus on the Advisory Committee regarding the importance of having a mechanism for developing and employing generally accepted scientific data and analyses to balance the traditional predominantly political

36



Ray Jay Davis, Principles for Shared Use of Transboundary Water Resources, in Integrated Water Resources Planning, supra note 30 (citing Leonard Rice & Michael D. White, Engineering Aspects of Water Law ch. 5 (1987)).

32

Article IV focus of existing compacts. The composition of the Division as well as the duties assigned the Division are intended to address this requirement.37 Article IV.E establishes specific timelines for decisions by the Commission, the Council, and the Division. This section was included because of the oftexpressed frustration with the length of time needed for governmental entities to make decisions. Article IV.E(1) also provides that Commission decisions are final agency actions for the purposes of judicial review. Except as provided otherwise in the Compact, voting requirements are to be determined by the Commission. Article IV.F(3) provides that “[t]he Commission shall establish by unanimous decision the categories of Commission decisions requiring either unanimous or lesser votes.” Decisions of the Council and Division (including enforcement decisions under Article VIII) are to be by “majority vote of eligible voting representatives” (Article IV.F(4)–(5)).

F. The Federal-Interstate Compact Option

As noted above, the primary role of the federal representative on the Commission is to coordinate and represent the views and interests of federal departments and independent agencies having programmatic responsibilities in the Basin. Such a role is of significant importance given the number of federal statutes and regulations that affect interstate water resources.38 In fact, a former executive director of the Delaware River Basin Commission and member of the Advisory Committee has concluded:

37



38

With regard to the general acceptance of scientific data and analyses, one mechanism that the Division may wish to consider would be to apply the criteria enunciated by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592–94 (1993): (1) Has the theory or technique been tested? Can it be tested? (2) Has the theory or technique been subject to peer review? (3) Does the theory or technique have an actual or potential high error rate? (4) Are there standards controlling the operations of the technique? (5) Is the theory or technique generally accepted within the relevant scientific community? See also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149–50 (1999). One of the tasks undertaken as the Model Compact was being prepared was a case study of the ongoing conflict between Alabama, Florida, and Georgia over the waters of the Alabama-Coosa-Tallapoosa and the Apalachicola-Chattahoochee-Flint River basins. One of the major issues inhibiting the ability of the states to resolve their conflicts has been the requirements of multiple federal statutes affecting interstate water resources. This case study is summarized in George William Sherk, The Management of Interstate Water Conflicts in the Twenty-First Century: Is It Time to Call Uncle?, 12 N.Y.U. Envtl. L.J. 764, 769–813 (2005). See also Joseph W. Dellapenna, Interstate Struggles over Rivers: The Southeastern States and the Struggle over the ‘Hooch, 12 N.Y.U. Envtl. L.J. 828, 830, 864–80 (2005).

Commentary

33

The lack of direct federal participation in interstate compacts limits their usefulness. . . . Over the past thirty years, federal laws have given the federal government large, new responsibilities with substantial sums of money for many activities, including pollution control, resource recovery, clean-up of hazardous-waste sites, and protecting endangered species. These new responsibilities and monies often make it the controlling force in the success or failure of cooperative state efforts to deal with interstate water problems through interstate compacts. According to many experts, any plan for an interstate river basin should not be considered comprehensive without encompassing federal water planning as an integral part of the effort.39 To address this Gordian Knot, the Model Compact would permit adaptation to reflect the views of the National Water Commission, contained in Water Policies for the Future, recommending the federal-interstate compact as the preferred institutional arrangement for water resources planning and management in multi-state regions.40 The Model Compact could be relatively easily converted into a federal-interstate water compact if (a) the United

39



40

Jeffrey P. Featherstone, Existing Interstate Compacts: The Law and the Lessons, 4 Tol. J. Great Lakes’ L., Sci. & Pol’y 271, 274 (2001) [hereinafter Featherstone, Existing Interstate Compacts] (emphasis added) (citing Jerome C. Muys, Approaches and Considerations for Allocation of Interstate Waters, in Water Law: Trends, Policies and Practice, 311 (Kathleen Marion Carr & James D. Crammond eds., 1995) and George William Sherk, Resolving Interstate Water Conflicts in the Eastern United States: The Re-Emergence of the Federal-Interstate Compact, 30 Water Resources Bull. 397 (1994)). See also Richard A. Cairo, Dealing with Interstate Compact Issues: The Federal-Interstate Compact Experience, in Conflict and Cooperation, supra note 25, at 120, 122; McCormick, Interstate Water Allocation, supra note 29, at 393 (failure “to account for these federal claims in negotiating the allocation of water could result in a state being unable to use its share of compact water”); Jeffrey P. Featherstone, Interstate Organizations for Water Resources Management (paper presented at the 2001 Ann. Meeting of the Am. Pol. Sci. Ass’n, San Francisco, Cal.) [hereinafter Featherstone, Interstate Organizations]. Nat’l Water Comm’n, Water Policies for the Future 424 (1973) (Recommendation No. 11–18). The Commission recommendation was based on an extensive study of interstate water compacts. See Jerome C. Muys, Interstate Water Compacts 388 (Legal Study 14 for the Nat’l Water Comm’n, U.S. Dep’t of Commerce, Nat’l Technical Info. Serv. Rep. NWC-L-71–011, 1971) [hereinafter Muys, Interstate Water Compacts]. For an excellent analysis of the 40-year track record of the federal-interstate compact model, see Jeffrey P. Featherstone, An Evaluation of Federal-Interstate Compacts as an Institutional Model for Inter-Governance Coordination and Management of Water Resources for Interstate River Basins in the United States (Aug. 1999) (unpublished Ph.D. Dissertation, Temple University).

34

Article IV States is made a signatory party; (b) the federal representative is made a voting member of the Commission; and (c) the federal representative has both the authority and the duty to bind federal agencies, to the extent of their discretionary authority, to decisions of the Commission. The four most recent compacts have included such provisions, which, if successful, could have provided “the long-sought linkage between federal and state planning and program implementation.”41 The effectiveness of any approach utilizing a single federal representative has been questioned42 but, unlike the Delaware River Basin Compact, the Model Compact does not obligate a single individual to represent the multiplicity of federal interests. The approach embodied in the Model Compact provides for representation and participation in Council and Division activities by a number of federal agencies having water allocation and management responsibilities. It is the authors’ hope that this approach, when combined with a single federal representative on the Commission, will be an effective means of facilitating intergovernmental cooperation and agreement. The federal-interstate compact approach was opposed by one member of the Advisory Committee representing the Federal Energy Regulatory Commission. This representative was firmly of the opinion that Congress should in no way limit the discretionary authority of federal agencies because any such limitation would “upset” both the expectations of parties dealing

41

Jeffrey P. Featherstone, Water Resources Coordination and Planning at the Federal Level: The Need for Integration, Water Resources Update, No. 104, Summer 1996, at 52, 54 (1996).

42

“The founders of the DRBC [Delaware River Basin Commission] attached considerable importance to the single federal agent as the coordinator of federal action in the basin. This role did not materialize. The federal representative has not been able to speak authoritatively for the federal government. As noted by Derthick (1974), who performed research on the DRBC and other interstate organizations in the early 1970s, the federal member role evolved into more of an ambassador, reporting the various, often conflicting positions of federal agencies without resolving them. Derthick pointed out that the federal government has been a reluctant partner in the compact commissions: ‘The dominant aim of the federal agencies has been to avoid making commitments through the DRBC. The federal member has been in an anomalous position. He is supposed to represent the interests of the federal government that has never been convinced its interests are being served by his being there.’” Featherstone, Existing Interstate Compacts, supra note 39, at 281 (citing Martha Derthick & Gary Bombardier, Between State and Nation: Regional Organizations of the United States (1974)). Accord Featherstone, Interstate Organizations, supra note 39.

Commentary

35

with the agency (e.g., existing licensees and permittees) and an asserted “balance” of authority over interstate water resources. Article 11.1 of the Delaware River Basin Compact provides that (a) The planning of all projects related to powers delegated to the [Delaware River Basin] Commission by this compact shall be undertaken in consultation with the Commission; (b) No expenditure or commitment shall be made for or on account of the construction, acquisition or operation of any project or facility nor shall it be deemed authorized, unless it shall have first been included by the Commission in the comprehensive plan; (c) Each federal agency otherwise authorized by law to plan, design, construct, operate or maintain any project or facility in or for the basin shall continue to have, exercise and discharge such authority except as specifically provided by this section.43 Similar language is contained in Article 12 of the Susquehanna River Basin Compact.44 The language of Article 11.1 of the Delaware River Basin Compact was clearly designed to require federal, state, and local water agencies to conform their projects to the Commission’s comprehensive plan. Since the content of the comprehensive plan is determined by a majority vote of the Delaware River Basin Commission, this meant that a state or the federal government could be required to shape its projects to a plan with which it was not in agreement. The federal agencies strongly objected to this and persuaded Congress to add reservation(s) to the consent legislation, providing in pertinent part that whenever a comprehensive plan, or any part or revision thereof, has been adopted with the concurrence of the member appointed by the President, the exercise of any powers conferred by law on any officer, agency or instrumentality of the United States with regard to water and related land resources in the Delaware River Basin shall not

43

Appendix B-14, the Delaware River Basin Compact, Pub. L. No. 87–328, pt. I, art. 11.1, 75 Stat. 688, 700–01 (1961).

44

Appendix B-33, the Susquehanna River Basin Compact, Pub. L. No. 91–575, art. 12.1, 84 Stat. 1509, 1524–25 (1970).

36

Article IV substantially conflict with any such portion of such comprehensive plan and the provisions of Section 3.8 and Article 11 of the Compact shall be applicable to the extent necessary to avoid such substantial conflict.45 Reservation(s) further provide(s) that the President may “suspend, modify or delete” any provision of the comprehensive plan affecting federal interests when he “shall find . . . that the national interest so requires.”46 A number of federal public land management and environmental

45

Appendix B-14, the Delaware River Basin Compact, pt. II, art. 15.1(s)(1), 75 Stat. 688, 716 (one of a set of reservations specified by article 15.1). Similar language was contained in Appendix B-1, the Alabama-Coosa-Tallapoosa River Basin Compact, art. VII, 111 Stat. 2233, 2239–40 (1997), and in Appendix B-3, the Apalachicola-Chattahoochee-Flint River Basin Compact, art. X, 111 Stat. 2219, 2225 (1997). Delaware River Basin Compact reservations also provide that “concurrence by the member appointed by the President shall be presumed unless within 60 days after notice to him of adoption of the comprehensive plan, or any part or revision thereof, he shall file with the Commission notice of his nonconcurrence.” Appendix B-14, the Delaware River Basin Compact, pt. II, art. 15.1(s)(2), 75 Stat. at 716. Similar language is contained in Appendix B-1, the Alabama-Coosa-Tallapoosa River Basin Compact, art. VII(a), 111 Stat. at 2237, ), and in Appendix B-3, the Apalachicola-Chattahoochee-Flint River Basin Compact, art. VII(a), 111 Stat. at 2223.

46

Appendix B-14, the Delaware River Basin Compact, art. 15.1(s)(1), 75 Stat. at 716.

47

See, e.g., Coastal Zone Management Act of 1972, Pub. L. No. 92–583, § 307, 86 Stat. 1280, 1285 (codified as amended at 16 U.S.C. § 1456(c)(1) (2000)) (federal activities to be consistent with state coastal zone management programs “to the maximum extent practicable”); Federal Land Policy and Management Act of 1976, Pub. L. No. 94–579, § 202, 90 Stat. 2743, 2748 (codified as amended at 43 U.S.C. § 1712(c)(9) (requiring coordination of federal land use and management by the Secretary of the Interior with state and local governments “to the extent consistent with the laws governing the administration of the public lands”)). On the other hand, the Safe Drinking Water Act is direct and leaves little room for unilateral federal agency judgment: Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government having jurisdiction over any potential source of contaminants identified by a State program . . . shall be subject to and comply with all requirements of the State program . . . applicable to such potential source of contaminants . . . in the same manner, and to the same extent, as any other person is subject to such requirements, including payment of reasonable charges and fees.



Safe Drinking Water Act Amendments of 1986, Pub. L. No. 99–339, § 205, § 1428(h), 100 Stat. 642, 662 (codified as amended at 42 U.S.C. § 300h–7(h) (2000)).

Commentary

37

protection statutes contain similar “consistency” provisions.47 Many of these statutory provisions, however, lack both certainty and predictability and might easily be avoided unless the appropriate federal official is required to issue a formal decision detailing any alleged impracticability, inconsistency, or adverse effect of a proposed action on the national interest.48

48

Regarding acceptance or rejection of state recommendations, see the Outer Continental Shelf Lands Act:



The Secretary shall accept recommendations of the Governor and may accept recommendations of the executive of any affected local government if he determines, after having provided the opportunity for consultation, that they provide for a reasonable balance between the national interest and the wellbeing of the citizens of the affected State. For purposes of this subsection, a determination of the national interest shall be based on the desirability of obtaining oil and gas supplies in a balanced manner and on the findings, purposes, and policies of this subchapter. The Secretary shall communicate to the Governor, in writing, the reasons for his determination to accept or reject such Governor’s recommendations, or to implement any alternative means identified in consultation with the Governor to provide for a reasonable balance between the national interest and the well-being of the citizens of the affected State.

Outer Continental Shelf Lands Act Amendments of 1978, Pub. L. No. 95–372, § 19(c), 92 Stat. 629, 653 (codified at 43 U.S.C. § 1345(c) (2000)).

Article V Interstate Water Apportionments A. Interstate Base and Supplemental Apportionments

This Compact makes a present annual apportionment of quantities of water to each signatory state from Basin waters within that state considered adequate to (1) first maintain stream flows to fulfill the requirements of applicable federal, state, and tribal laws and to maintain a healthy and productive Basinwide ecosystem in designated reaches of the system, in such amounts, and for such seasons or duration as shown in Appendix ___, and (2) provide additional flows to satisfy the use requirements of all perfected water rights derived from federal, state, or tribal law (base apportionment). As depicted in the table below, the requirements to satisfy these uses and certain non-consumptive uses, such as hydroelectric power generation, have been converted to a percentage of flows of the waters of the Utton River Basin. This Compact further provides for future supplemental apportionment by the Commission of reasonably predictable supplies in excess of the base apportionment to each state on a percentage basis at a reasonable price to be determined by the Commission, based primarily on comparable transactions in the Basin. Base Flow Apportionments River X State A ___ B ___ C ___ River Y A ___ B ___ C ___

Base AF AF AF

Percentage of Flows _____ percent _____ percent _____ percent

AF AF AF

_____ percent _____ percent _____ percent

The Basin’s estimated safe annual yield of _____ acre feet (AF) to satisfy the base apportionments is based on an analysis of the average annual and seasonal flows for the entire period of record, the driest 10-year period of record, and the wettest 10-year period of record, taking into account existing surface and underground storage facilities.

38

Interstate Water Apportionments Entire period of record Driest 10-year period Wettest 10-year period

39

___ AF ___ AF ___ AF

Consequently, the base apportionment of _____ AF of flows is determined to be reasonably secure, as is the availability of excess water for further supplemental apportionments. If future availability deviates substantially from these water supply estimates so that the base or supplemental apportionments cannot be satisfied, the Commission is authorized to make appropriate equitable reductions of the perfected use rights portions of the apportionments. The Commission shall also develop criteria for the allocation of such shortages among the signatory states and specific triggers for the implementation of such use curtailments. If unanticipated impacts of federal environmental programs should substantially, disproportionately, and adversely affect a state’s apportionment, the Commission shall allocate that burden pro rata among all of the Basin states based on their respective shares of the total Basin apportionments unless the states agree on another formula. B. Intrastate Allocations Allocations of each state’s apportionment to users or dedication to maintenance of adequate flows shall be determined by each state in accordance with applicable law. The Commission shall have no permitting authority with respect to such allocations, but shall provide assistance and advice if requested.

C. Adjustment to Base Apportionments

For a period of three years from the effective date of this Compact, or such longer period as the Commission may provide, any signatory state may petition the Commission for an upward adjustment of its base period apportionment to account for perfected rights that were inadvertently not recognized for any reason. The Commission shall not impose any charge for additional water that may be added to a state’s base apportionment.

D. Supplemental Apportionments (1) No later than three years after the effective date of this Compact, the Commission shall determine the amount of Basin water reasonably likely to be available above base apportionments for supplemental apportionment on a sustainable basis for the following five years and shall make annual adjustments to the initial determination as new hydrologic data and use levels may dictate. (2) At the time of its initial determination, the Commission shall announce the terms and conditions, including price, for acquisition of supplemental

40

Article V apportionments and invite applications from each state for a portion or all of its percentage entitlement to such water. Water for claimed rights that were being diligently developed but were not perfected on the effective date of this Compact may be afforded a priority when the Commission considers applications for supplemental apportionments.

(3) The terms and conditions announced by the Commission shall include as a condition to the receipt of any supplemental apportionment the extent to which any party applying for such an apportionment has been successful in conserving the water resources of the Utton River Basin or is implementing initiatives to achieve such conservation. (4) Each supplemental state apportionment shall be for an initial five-year period, subject to renewal for the same period (a) on terms and conditions required by law at that time, (b) at a price to be determined by the Commission based primarily on transactions between willing sellers and buyers in the region, and (c) at the same, reduced, or increased levels as the estimates of available water supply, the states’ records of reasonable beneficial use, and the wishes of the states may dictate. The Commission shall not charge for water for (a) perfected rights that were inadvertently omitted from base apportionments, (b) claimed rights that were not fully perfected at the time of compact negotiation, and (c) maintenance of adequate stream flows above levels in the base apportionments.

E. Transfers of Apportionments

Signatory states may make such portion of their unused base apportionments or any supplemental apportionments available to other states or to the Commission for such periods, upon such terms and conditions, and for such consideration, if any, as the parties may negotiate unless the Commission after notice and hearing disapproves the transfer after determining that it would cause substantial injury to another signatory party.

F. Monitoring of Apportionment Usage

The Commission shall monitor water usage throughout the Basin and enforce the Compact apportionments, giving credit for the use of imported or developed water. It shall provide de minimis exemptions for various kinds of uses, recognize a reasonable margin of error in measurement methodology, employ a system of debits and credits for under- and over-uses or deliveries with provision for a quantity limitation on such debits and requiring overuse payback over a reasonable period, and establish similar reasonable rules and procedures to monitor the apportionments in an equitable and efficient fashion.

Interstate Water Apportionments

41

G. Measurement and Apportionment Chargeability of Subsurface Water Usage

Within three years of the effective date of this Compact, or such longer period as the Commission may provide, each state shall implement reasonably uniform systems for the estimation or actual measurement of the extraction and consumptive use of subsurface waters hydrologically connected to the Basin surface flows. After that date, the consumptive use of such waters shall be charged to each state’s base or supplemental apportionment in amounts and for appropriate time periods based upon Commission-approved numeric models.

H. Apportionments Limited by Reasonable Beneficial Use (1) Within three years of the effective date of this Compact, the Commission shall complete an investigation of standards and procedures applied by the signatory parties for determining “reasonable beneficial use” for various uses throughout the Basin. Within two years thereafter, the Commission shall recommend standards and procedures for determining reasonable beneficial use for such uses, taking into account different climatic and soil conditions, cropping patterns, efficiency of conveyance facilities, adequacy of measurement devices, per capita usage of comparable domestic users, cultural requirements, and other relevant considerations. (2) To the maximum extent practicable, each state shall make reasonable beneficial use of its apportionment pursuant to the Commission recommendations and shall have primary responsibility for enforcing such recommendations. Based upon allegations by another signatory party that failure of a state to make reasonable beneficial use of its apportionment has caused substantial injury to the complaining party, the Commission shall be authorized, after notice and hearing, to (a) make an appropriate phased reduction in the state’s base and/or supplemental apportionment in an amount that the Commission determines could have been conserved had the recommended standards and procedures been implemented, and (b) make such water available for supplemental apportionment to the complaining and other signatory parties. (3) The disposition of waters conserved by a signatory party or users subject to its jurisdiction shall be controlled by applicable law. The signatory state may provide that such water may be transferred to other intrastate or interstate users upon such terms and conditions, and for such consideration, if any, as the parties may negotiate and the signatory

42

Article V party approves. Interstate transfers or banking shall require Commission approval. Within two years of the effective date of this Compact, the Commission shall promulgate regulations governing the determination of the chargeability of such transfers to the Compact apportionments of the signatory states.

(4) If the signatory party acquires such conserved water, it may transfer its interest to the Commission for such purposes, and upon such terms and conditions, and for such consideration as the parties may negotiate, including but not limited to supplemental apportionment to other states, maintenance of adequate flows or other environmental values throughout the Basin, or banking of such conserved water for future use by the conserving state.

Article V Commentary Interstate Water Apportionments A. The Apportionment Scheme

Article V rests on several basic premises. First is that adequate stream flows should be maintained in each state in the Basin to provide a healthy ecosystem, without which any long-term allocation and management agreement could be doomed to recurrent conflict or failure. Second is that all existing rights in each state at the time of compact execution should be protected to the extent they have been perfected under state or federal law. These environmental stream flow and perfected rights requirements would be established during compact negotiations from water-use records for administratively permitted or judicially adjudicated water rights and other information to establish a “base apportionment” of enough water to satisfy them. Water that the Commission later reasonably estimates would be available in excess of the amount of the base apportionments would be allotted periodically to the states as “supplemental apportionments.”

(1) Apportionments Based on Estimated Safe Annual Yield The water supply premise of the Model Compact is that the “safe annual yield” of the Basin is more than adequate to satisfy the two components of the base apportionment. The definition of “safe annual yield” contained in Article III.K was developed by the authors based on a review of a number of sources and definitions.49 The basis for the safe annual yield estimate would be set out in the Compact with the further provision that if and when future availability deviates “substantially” (perhaps defined in the compact or subsequent regulation) from these water supply estimates so that the base apportionments cannot be satisfied, the Commission is authorized to make appropriate equitable reductions of the perfected use rights of the base apportionments, most likely on a pro rata basis unless the Compact has provided another formula. The reason for such specification of the original water supply predictions is based on the experience under the

49

See, e.g., Utah Div. of Water Resources, Utah’s Water Resources: Planning for the Future 67 (2001), http://www.water.utah.gov/planning/SWP/SWP2001/SWP_pff. pdf (defining “safe yield”).

43

44

Article V Colorado River Compact, which established apportionments and obligations based on projections extrapolated from the best hydrologic data at the time, which unfortunately have not materialized. Although there is little disagreement as to the data the Compact negotiators relied on, it must be extracted from the minutes of the negotiations and reports of the negotiators to their states and Congress. Consequently, it seems desirable to perpetuate expressly in any compact the actual data and projections that the negotiators relied on so that there can be no disagreement if and when their expectations are not realized and adjustments are deemed necessary.

(2) The Apportionment Methodology The compact negotiators, having determined that enough water to maintain adequate environmental flows and satisfaction of all perfected rights in the Basin should be included in the base apportionments, have a number of options for defining the base apportionments to each state. Existing compacts reflect a number of different allocation approaches. One review has found six general allocation methodologies: (1) the prior appropriation doctrine, (2) specific quantities of water measured in terms of beneficial consumptive use, (3) specific diversion rights measured in fixed percentages of available flow, (4) the amount of actual storage permitted in existing or future reservoirs, (5) outflow as a proportion of actual inflow, and (6) combinations of the above.50 Obviously, the unique or special circumstances of a particular basin will dictate the appropriate methodology. However, based on studies of various apportionment methodologies and the recommendations of Advisory Committee members and other knowledgeable commenters, the Model Compact quantifies the base apportionments as percentages of flow volumes, primarily because of the relative ease of measurement for monitoring purposes and the fact that this approach appears to most equitably and effectively allocate the risk of shortages between upstream and downstream states and minimize incentives for non-compliance.51 50



51

Simms et al., supra note 30, at 23–8. See also Zachary L. McCormick, The Use of Interstate Compacts to Resolve Transboundary Water Allocation Issues 471–78 (1984) (unpublished Ph.D. dissertation, Oklahoma State University); Douglas Kenney, Resolving Interstate Water Allocation Conflicts: Tools, Strategies, and Administrative Options (paper presented at the Ann. Conf. of the S. Reg. Info. Exchange Group, Nat. Resources Econ. Comm., May 18, 1995). See Lynne Lewis Bennett, The Economics of Interstate River Compacts: Efficiency, Compliance, and Climate Change (1994) (unpublished Ph.D. dissertation, Univ. of Colo.); Lynne Lewis Bennett & Charles W. Howe, The Interstate River Compact: Incentives for Non Compliance, 34 Water Resources Res. 485, 485–95 (1998).

Commentary

45

With respect to supplemental apportionment of any water that the Commission determines is available after satisfaction of the base apportionments, again several methodologies are available for defining each state’s share. One approach would be for each state to receive a percentage share of such surplus water based on its percentage share of the total base apportionments. Another might be to award each state an equal percentage share on a principle of sovereign parity. A third could be to authorize the Commission to make an administrative “equitable apportionment” based on specific factors used by the Supreme Court or on other reasonable factors set out in the compact, e.g., land areas in the basin, water contribution to the total Basin resource, population, conservation efforts, etc. Whatever method is chosen by the negotiators, the Model Compact assumes that the states will negotiate their appropriate percentage shares and include them in the compact. Each state’s right to the resulting percentage of entitlements would be subject to two principal conditions: (1) implementation of a water conservation program, and (2) payment for certain classes of supplemental water at prices established by the Commission based primarily on transactions between willing sellers and buyers in the Basin.

B. Intrastate Allocations

The Model Compact makes it clear that the Commission shall have no authority to issue individual permits or other entitlements to the waters included within the base and supplemental apportionments to each state. Such intrastate allocations to users or dedications to maintenance of adequate flows shall be made or adjudicated by each state in accordance with applicable law.

C. Base Apportionments

As to the first basic objective of the base apportionments, there is little, if any, disagreement that a principal shortcoming of most state water allocation systems, at least in the West under the prior appropriation system until relatively recently, was the failure to provide for maintenance of an adequate level of instream flows that would not be subject to diversion and consumptive use for traditional beneficial purposes.52 Article V would make such flows the first priority in the establishment of the base apportionments under the Model Compact.

52

See, e.g., Stephen J. Shupe, Keeping the Waters Flowing: Stream Flow Protection Programs, Strategies and Issues in the West, in Instream Flow Protection in the West ch. 1 (Lawrence J. MacDonnell et al. eds., 1989).

46

Article V Protection and satisfaction of all existing perfected water rights is the second priority and is designed to actually implement statements found in almost all existing compacts declaring that all valid existing rights at the time of its execution were to be satisfied, honored, or otherwise remain unimpaired. It is not only designed to avoid having agreement on interstate apportionments result in an unintended taking of existing rights, as in Hinderlider v. La Plata & Cherry Creek Ditch Co.,53 but should serve as an inducement to water rights holders to support their state’s participation in the compact program. Moreover, the Supreme Court has stated that in applying the array of equitable factors to be considered in effecting an “equitable apportionment,” “so far as possible . . . established uses should be protected.”54 Defining “perfected” rights will be a critical challenge to the compact negotiators. The definition in the Model Compact is based on the Supreme Court’s decision in Arizona v. California,55 but some argued in that case that it meant more than actual maximum use under a claimed right and should be measured by the capacity of constructed works. A number of commenters suggested that the assumption that the estimated “safe annual yield” will be adequate to take care of all perfected rights in most basins may be too rosy and asked how base apportionments will be made in basins that may already be overappropriated. The authors believe that the compact negotiators should nevertheless proceed with gathering the necessary information regarding perfected rights. If they exceed the safe annual yield, a percentage share of the latter could be apportioned to each state based upon its percentage share of the total perfected rights, just as the Commission is authorized to do in times of significant shortages in the safe annual yield upon which all base apportionments are established. The Commission would also play an important role in (1) establishing and enforcing reasonable beneficial use standards throughout the Basin to make more water available through conservation (Article V.H), (2) facilitating interstate water marketing to move the available supply around more efficiently among willing sellers and buyers (Article IV.B(3)(k)), and (3) promoting conjunctive use of available storage reservoirs (Article VIII.C). Whatever approach is taken in the overappropriated basins, it is essential to remember that the only alternative would probably be interstate litigation in the Supreme Court, which would be

53

304 U.S. 92, 95–97 (1938).

54

Nebraska v. Wyoming, 325 U.S. 589, 618 (1945) (No. 6, Orig.).

55

373 U.S. 546, 566, 622 (1963) (No. 8, Orig.).

Commentary

47

time-consuming, expensive, and unlikely to produce a better result for all parties than the compact approach suggested above, or surrendering their fate to the uncharted waters of congressional intervention.56 There was a relative paucity of data on existing rights and uses when most of the existing water allocation compacts were negotiated. For example, when the Colorado River Compact was negotiated in 1922 the initial efforts to establish individual apportionments for the seven Basin states based on estimates of irrigated and irrigable acreage were abandoned after several months of negotiations because the states generally exaggerated the essentially unknown extent of their existing and potential development. Instead, based loosely on a concept of sovereign parity (a 50/50 split), the negotiators made an interbasin apportionment of beneficial consumptive use of 7.5 million acre-feet (MAF) to the Upper Basin and 8.5 MAF to the Lower Basin on the assumption (which has turned out to be in error) that there was enough water in the Basin to satisfy those uses and still have a surplus of four or five MAF for later apportionment in 1963.57 Today there are much more reliable data on the extent of existing rights and uses, as well as extensive hydrologic data. As to the former, there have been much piecemeal water rights litigation and even more extensive comprehensive stream adjudications since enactment of the McCarran Amendment in 1952, primarily in the West.58 But even in the midwestern and eastern states, the advent of regulated riparianism has provided administrative mechanisms to get a better handle on the present and potential extent of

56

The words of Professor Charles Meyers may be prophetic: Water resource development will increasingly involve river basin management, and operations will transgress state lines and require large federal expenditures. Such basin development plans must necessarily come before Congress, and it is a highly appropriate time when they do so to settle interstate conflicts over water allocation. Without such a settlement development cannot go forward.



Charles Meyers, The Colorado River, 19 Stan. L. Rev. 1, 48 (1966). See also David H. Getches, The Metamorphosis of Western Water Policy: Have Federal Laws and Local Decisions Eclipsed the States’ Role? 20 Stan. Envtl. L.J. 3, 24 (2001) (noting that state influence over water policy has declined to the point that the states “risk obsolescence” at the same time that both federal and local influences over water policy have increased in importance).

57

See Daniel Tyler, Silver Fox of the Rockies: Delphus E. Carpenter and Western Water Compacts ch. 5 (2003).

58

See generally John E. Thorson et al., Dividing Western Waters: A Century of Adjudicating Rivers and Streams, Part II, 9 U. Denv. Water L. Rev. 299 (2006).

48

Article V riparian uses.59 Similarly, sophisticated aerial and satellite photography has provided a means to ascertain the extent of past, present, and potential irrigation, while the development of urban water districts has provided substantial information on municipal and domestic uses. Estimates of the current consumptive use requirements of all perfected water rights throughout the basin and/or their associated diversion requirements, including rights and uses by federal and Indian reservations (not addressed in existing compacts), would be provided by the states, the United States, and Indian tribes during compact negotiations and would be based on adjudicated rights, claimed rights in pending adjudications, or, where no adjudication is completed or pending, the best estimates of present uses by appropriate officials based primarily on, but not limited to, permitted appropriative or riparian uses, urban water use records, aerial photos of irrigated agricultural lands, and records of subsurface water pumping. Quantifying unadjudicated Indian reserved water rights claims for their reservations, which are generally quite large, will present a special challenge to the Compact negotiators. If the full amount of such claims is included in a state’s base apportionment and a final adjudication or settlement of those claims is lower, which seems likely, the state’s base apportionment will have been substantially overstated for some period of time. If none of the claim is included until final adjudication or settlement, the tribe might be deprived unfairly of any uses for an extended period. A reasonable compromise might be to include in a state’s base apportionment an amount equal to the maximum amount of water historically put to use by the tribe at the time of the compact’s execution and the remainder of the claim, when finally adjudicated or settled, included in a supplemental apportionment by the Commission under Article V.D. The Model Compact assumes that such a procedure will be adopted. In a like vein, almost none of the negotiations of the existing compacts assembled data on the flow requirements needed to maintain healthy ecosystems and in most cases, apparently, the negotiators expressed little, if any, concern about that issue. For example, the minutes of the negotiations of the Colorado River Compact do not even mention the subject, reflecting the water development culture of the time. Currently, on the other hand,

59

See A. Daniel Tarlock, Law of Water Rights and Resources, §§ 3:93–3:99 (2006). See also George William Sherk, East Meets West: The Tale of Two Water Doctrines, 5 Water Resources Impact No. 2, Mar. 2003, at 5, 5–8; Joseph W. Dellapenna, Issues Arising Under Riparian Rights: Replacing Common-Law Riparian Rights with Regulated Riparianism, in Water Rights of the Eastern United States 5 (Kenneth R. Wright ed., 1998).

Commentary

49

there are exhaustive data and many interested and capable scientists eager to address the critical issue of the total amount of water that should be dedicated to maintaining adequate stream flows throughout the entire basin, recognizing that the timing and magnitude of required flows will vary depending on both intra- and inter-seasonal variability and on their purposes and location. Experience with the ACT-ACF (Alabama-Coosa-Tallapoosa and Apalachicola-Chattahoochee-Flint) negotiations and the releases from Glen Canyon Dam to meet the requirements of the Colorado River Compact and the Colorado River Storage Project Act suggest that this may not be an easy issue to address, so that a negotiated rough approximation may be necessary. Consequently, the Model Compact does not propose any particular methodology but simply stresses the importance of using reliable data to determine adequate flows, the need for monitoring such flows, and providing authority to make necessary changes when appropriate.

D. Supplemental Apportionments

The second leg of the interstate apportionment system is the Commission’s post-compact supplemental interstate apportionment of water determined to be surplus to the amount required to satisfy the base apportionments. The principal differences between the base apportionments and the supplemental apportionments is that the former are designed to provide enough water to satisfy all existing perfected rights and environmental flow requirements in each state at the time of Compact negotiation, whatever they may be, whereas the latter would be negotiated percentages establishing each state’s share of predicted surplus flows to be made available on a short-term, renewable basis subject to specific conditions and at reasonable prices established by the Commission. The authority proposed for the Commission to establish reasonable prices for supplemental apportionments will undoubtedly be controversial, but the authors believe that recognizing the economic value of water as a market commodity, as long advocated by many economists, is a concept whose time has finally arrived, just as has water marketing among users. The Commission would only charge a state for previously uncommitted water and not for water to satisfy (1) rights that may have inadvertently been omitted from a state’s claimed perfected rights at the time of compact negotiation, (2) rights that were in the process of being perfected at that time, and (3) water to be dedicated to the maintenance of adequate flows for environmental purposes. It seems likely that most of the water coming with a price tag would be for future domestic, municipal, and industrial needs, including power generation. Presumably a state would pass those costs on to such users as part of its water allocation procedures.

50

Article V

E. Transfers of Apportionments

The authors assume that if a state had no need for its full supplemental apportionment entitlement it might nevertheless purchase the apportionment and sell a percentage of it to a sister state that did need an increase, at a modest markup. The agreement between Nevada and Arizona where Nevada purchased some of Arizona’s unused annual Secretarial apportionment from Lake Mead for storage underground in Arizona until such time as Nevada needs it may be a useful model.60 For the last dozen years or so, arguments have been exchanged by Upper and Lower Basin lawyers in the Colorado River Basin as to whether the Colorado River Compact, which is silent on interbasin transfers, nevertheless implicitly prohibits them. The Model Compact is designed to facilitate the mushrooming practice of water marketing by encouraging and expressly permitting the states or their citizens (with their state’s approval) to enter into interstate marketing agreements for some of their base or supplemental apportionments, subject to Commission review of such proposals’ impact on the other signatory parties and Commission programs. A 2004 study of recent drought damages in the Rio Grande Basin concluded that such damages could be substantially reduced in the future through short-term interstate water marketing.61

60

The evolution and components of the agreement between Nevada and Arizona are detailed in James H. Davenport, Colorado River Interstate Water Banking, Water Rep. July 15, 2005, at 11.

61

James F. Booker et al., Economic Impact of Alternative Policy Responses to Prolonged and Severe Drought in the Rio Grande Basin, 41 Water Resources Res., W02026 (Feb. 2005). Using an integrated hydrologic, economic and institutional model to examine a range of alternative policy responses, we find some reductions in drought damages result from policies such as intracompact market water transfers. Larger reductions in drought damages are produced by interstate market policies that reallocate scarce supplies to the highest-valued uses. However, that kind of policy requires additional institutional flexibility to allow water exchanges across state lines. There are rarely public policy changes that do not involve costs, and any introduction of water marketing across state lines will be subject to considerable debate and scrutiny. • • •

Overall, compared to existing water allocation institutions, we find that future drought damages could be reduced by 20% to 33% per year under the most serious drought through intracompact and interstate water markets, respectively, that would extend across current water management jurisdictions.

For an overview of the “promise and prospects of water markets” and citations to some of the best sources on the subject, see Robert Glennon, Water Scarcity, Marketing, and Privatization, 83 Tex. L. Rev. 1873 (2005).

Commentary

51

F. Subsurface Water Use and Chargeability

Most existing compact allocations do not clearly address, if at all, the relationship between uses of surface water and hydrologically connected subsurface water. This failure may subject the states to chargeability of such subsurface uses to their surface water allocations (and thereby possibly injure pumpers who may have relied on the state’s assurance that their pumping was lawful). In Kansas v. Colorado,62 the Supreme Court held that the provision of the 1949 Arkansas River Compact providing that “the waters of the Arkansas River [reaching Kansas at that time] . . . shall not be materially depleted in usable quantity or availability” was violated by post-compact increased pumping by Colorado from precompact wells.63 Similarly, in Kansas v. Nebraska,64 a dispute over the chargeability of certain subsurface uses to Nebraska’s allocation under the Republican River Compact, Nebraska moved to dismiss Kansas’s complaint on the grounds that (1) the Compact, by its plain and unambiguous terms, does not apportion or allocate consumption of ground water; (2) [the Supreme] Court and the Compact states have previously interpreted the Compact as an agreement regarding rights to surface water as distinguished from groundwater; and (3) the parties did not intend to apportion groundwater under the Compact.65 The Special Master rejected that argument and concluded that the Compact’s allocation of the “virgin water supply within the Republican River Basin” included both the surface flows and the hydrologically connected ground water and “restricts [Nebraska’s] groundwater consumption to whatever extent it depletes stream flow in the Republican River Basin.”66 In denying Nebraska’s motion to dismiss, the Supreme Court agreed.67 The parties subsequently settled the case and promptly adopted a sophisticated ground

62

514 U.S. 673 (1995) (No. 105, Orig.).

63

Id. at 690.

64

538 U.S. 720 (2003) (No. 126, Orig.) (Decree).

65

Second Report of the Special Master at 20–21, Kansas v. Nebraska, 538 U.S. 720 (Apr. 15, 2003). See Kansas v. Nebraska, 538 U.S. 720 (approving Final Settlement Stipulation accompanying Second Report). See also Appendix B-28, the Republican River Compact, ch. 104, 57 Stat 86 (1943).



66

First Report of the Special Master at 1–3, Kansas v. Nebraska, 528 U.S. 1151 (Feb. 28, 2000) (No. 126, Orig.).

67

Kansas v. Nebraska, 530 U.S. 1272 (2000) (No. 126, Orig.).

52

Article V water model to determine the amount, location, and timing of stream flow depletions to the Republican River caused by well pumping and to determine stream flow accretions from recharge of water imported from the Platte River Basin.68 A similar issue has been raised by both Texas and New Mexico with respect to the chargeability of pumping of subsurface waters by each state under the Rio Grande Compact. The Advisory Committee strongly advocated including use of subsurface water hydrologically connected to surface water in compact apportionments. Consequently, the Model Compact provides a three-year period for the states to adopt reasonably uniform systems to measure such subsequent uses, perhaps modeled after that used in the Republican River Compact litigation, after which they would be charged against a state’s apportionments. Some commenters suggested that three years might not be a long enough lead time.

G. Reasonable Beneficial Use

Section 8 of the Reclamation Act of 1902 provides that “beneficial use shall be the basis, measure and limit” of any water rights acquired under that Act.69 Most western states have similar language in their constitutions or statutes, as well as statutory prohibitions against the “waste” of water, i.e., the amount of water applied to particular beneficial uses must be “reasonable.” These two concepts have merged into “reasonable beneficial use” as the dominant guiding principle of western water use, i.e., water rights attach to only the amount of water reasonably applied to a beneficial use, either consumptive or non-consumptive. Although beneficial uses generally span a broad consensusbased spectrum, application of the reasonableness standard of water application to such uses is neither relatively uniform nor aggressively enforced. One of the Advisory Committee members said bluntly that “no state has had the courage to set meaningful standards for reasonable beneficial use.” Whether that is true or not, the authors are convinced that the principal long-term source of “new” water for expanding populations and environmental values will come from increased conservation efforts. A major component of this

68

Kansas v. Nebraska, 538 U.S. 720. The model is set forth in the Final Report of the Special Master, Kansas v. Nebraska, 540 U.S. 964 (Oct. 20, 2003) (No. 126, Orig.). For a discussion of the legal and technical issues involved in the Republican River Compact controversy, see Kenneth W. Knox, The Allocation of Interstate Ground Water: Evaluation of the Republican River Compact as a Case Study (2004) (unpublished Ph.D. dissertation, Colorado State University).

69

Reclamation (National Irrigation or Newlands) Act, ch. 1093, § 8, 32 Stat. 388, 390 (1902) (codified at 43 U.S.C. § 372 (2000)).

Commentary

53

effort must necessarily be more aggressive enforcement of a clearly defined reasonable beneficial use standard. The Supreme Court has already applied this concept in its interstate equitable apportionment decisions. In Wyoming v. Colorado,70 the Court applied “reasonable use” as an important criterion, stating that “the doctrine [of prior appropriation applied in each state and used as the basis for the Court’s decision] lays on each of these states a duty to exercise her right [in the Laramie River] reasonably and in a manner calculated to conserve the common supply.”71 The expansive list of equitable considerations later set forth in Nebraska v. Wyoming72 included “the practical effect of wasteful uses on downstream areas.”73 “Wasteful uses” were later given careful attention in Colorado v. New Mexico.74 In the first round of the Vermejo River dispute, the Court relied on Wyoming v. Colorado75 in making it clear that the availability of “reasonable conservation measures” to reduce both Colorado’s proposed upstream diversion and New Mexico’s existing uses was an important consideration and that the states had “an affirmative duty to take reasonable steps to conserve and augment the water supply of an interstate stream.”76 The Court remanded the case to the Special Master for more specific findings on the conservation issues, but on review of those findings the Court later concluded that Colorado had not established by the requisite “clear and convincing evidence” that its proposed diversion should be permitted.77 Contemporaneously with its Vermejo decisions, the Court held in Idaho v. Oregon & Washington78 that the doctrine of equitable apportionment applied in its interstate water cases was equally applicable to a dispute among the three states over their respective shares of the anadromous fish in the ColumbiaSnake River system. The basic principle it applied was that “states have an

70

259 U.S. 419 (1922) (No. 3, Orig.).

71

Id. at 484 (emphasis added).

72

325 U.S. 589 (1945) (No. 6, Orig.).

73

Id. at 618.

74

459 U.S. 176 (Vermejo I) (1982) (No. 80, Orig.); 467 U.S. 310 (Vermejo II) (1984) (No. 80, Orig.).

75

Wyoming v. Colorado, 259 U.S. 419 (1922) (No. 3, Orig.).

76

Vermejo I, 459 U.S. at 185, 187.

77

Vermejo II, 467 U.S. at 316–20.

78

462 U.S. 1017 (1983) (No. 67, Orig.).

54

Article V affirmative duty under the doctrine of equitable apportionment to take reasonable steps to conserve and even to augment the natural resources within their borders for the benefit of other states.”79 This awesome pronouncement of state responsibilities in using shared regional resources was not further refined because the Court concluded that Idaho had not proved a present injury and dismissed its complaint. Considering that the “reasonable beneficial use” principle is applicable intrastate under both state and federal law and has been used repeatedly by the Supreme Court as an important factor of federal common law in its interstate equitable apportionment decisions, it seems entirely appropriate, if not mandatory, for an interstate compact commission implementing a negotiated equitable apportionment to clarify and strengthen application of the concept on a regional basis. The approach proposed in the Model Compact is for the Commission to first review the application of the principle in the signatory states and then recommend (not impose) standards and procedures for determining reasonable beneficial use through the region. It is not intended to be a “one size fits all” standard. Rather, the Commission is directed to recognize differences in the accepted components of the standard throughout the Basin where appropriate. The states would continue to have primary responsibility to enforce the recommended standards. However, upon complaint of another signatory party that failure of a Basin state to enforce the standard was causing it substantial injury by depriving it of water, the Commission, after notice and hearing, would be authorized to gradually reduce the wasting state’s apportionment by the amount of water that could reasonably have been conserved by enforcement of the recommended guidelines and reapportion it to the complaining party and other states or parties. This proposal will undoubtedly be controversial. Some state spokespersons have already complained, and others undoubtedly will, about this “intrusion” by the Commission into a highly sensitive area. However, the proposal is only for recommended guidelines and continuation of state enforcement of them until such time as a neighboring state complains and demonstrates, by clear and convincing evidence as required in Vermejo, that lack of enforcement is causing it substantial injury. The alternative, absent the compact, would be for the complaining state or states to bring an equitable apportionment action in the Supreme Court, based on the precedents cited above, alleging wasteful water use practices by the non-enforcing state or states that

79

Id. at 1025 (emphasis added).

Commentary

55

are causing it injury and seeking enforcement of the reasonable beneficial use standard. In short, it boils down to a choice by a non-enforcing state as to whether it wants to comply with the standards and enforcement authority of a commission comprised of the principal water management officials of its sister Basin states (all subject to the same standard) or the predilections and limited knowledge in this field of nine Supreme Court justices in Washington, D.C., and all that would cost. The choice seems clear to the authors, who hope it will be equally clear to the states in interstate river basins.

Article VI Water Quality Protection Program A. Policy and Standards (1) The Commission may (a) establish and enforce water quality standards and wasteload allocations, and (b) enforce National Pollution Discharge Elimination System (NPDES) permits under the Clean Water Act for the interstate components of the Utton River Basin. The signatory states and Indian tribes shall exercise corresponding authority on the intrastate tributaries to such interstate streams. (2) The Commission may assume jurisdiction to abate existing pollution in the interstate waters of the Basin and control or prevent future pollution whenever it determines, after investigation, notice and hearing, and consultation with the Environmental Protection Agency (EPA), that pollution by sewage or industrial or other waste or excessive salinity originating within or flowing through or along a signatory state or Indian reservation threatens to injuriously affect interstate waters of the Basin. Upon such determination, the Commission may classify the interstate waters of the Basin and establish (a) reasonable chemical, physical, and biological guidelines for water quality for various uses, and (b) standards of treatment of sewage, industrial, or other waste for such classes, including allowance for the variable factors of surface and subsurface waters, such as size of the stream or aquifer flow, movement, location, character, self-purification, and usage of the waters affected, and may adopt rules, regulations, and standards to abate existing pollution and prevent or control such future pollution, and to require such treatment of sewage, industrial, or other waste or alteration of certain land use practices within a reasonable time. (3) The Commission may establish a mechanism for the transfer of pollution allowances, including NPDES permits, consistent with the requirements of the Clean Water Act. (4) With respect to alleged violations of the Clean Water Act, the Commission may, after prompt investigation, notice, and hearing, order any person or public or private corporation or other entity to cease the discharge of sewage, industrial, or other waste into waters of the Basin or

56

Water Quality Protection Program

57

alter such irrigation or other land use practices that it determines to be in violation of its rules and regulations applicable to the Basin’s interstate waters. Any such order may prescribe a reasonable date for the construction of any necessary works or undertaking or discontinuance of any practice, on or before which such discharge or practice shall be wholly or partially discontinued, modified, or otherwise conformed to the requirements of such rules and regulations. Such an order shall be reviewable in any court of competent jurisdiction. The Commission may (a) invoke as complainant the power and jurisdiction of water quality control agencies or courts of the signatory parties, or (b) bring an action in its own right in any court of competent jurisdiction to compel compliance with any provision of this article, or any rule, regulation, or order issued pursuant thereto; provided that the Commission shall first refer the matter to the appropriate state environmental protection agency or the EPA Regional Director, as appropriate, and request that enforcement action be taken. Failure of the state environmental protection agency or the EPA to initiate enforcement action within 30 days shall authorize the Commission to take appropriate enforcement action.

B. Tributary Waters (1) The Commission may recommend to the signatory parties reasonable chemical, physical, and biological guidelines for water quality satisfactory for various uses of tributary waters consistent with the requirements of the Clean Water Act. Each signatory party shall classify or reclassify the intrastate tributary waters and submit the classification or reclassification to the Commission for its review and recommendation. The Commission may propose such changes in its recommended classifications and standards as may be required by changed conditions, the desirability of uniformity, or to meet the primary purposes of this Compact and the Clean Water Act. (2) Consistent with the requirements of the Clean Water Act, each of the signatory parties shall prohibit or control pollution of the intrastate tributary waters of the Basin to the extent necessary to maintain the quality of such waters to a degree at least equal to the requirements of the interstate stream immediately above the confluence of such streams. (3) Nothing in this Compact is intended or shall be construed to repeal, modify, or qualify the authority of any signatory party to enact any legislation or issue administrative rules or enforce any additional conditions and restrictions to reduce or prevent the pollution of intrastate tributary waters within its jurisdiction.

Article VI Commentary Water Quality Protection Program The Advisory Committee and many commenters have recognized that “water quality requirements also raise transboundary issues, and a truly comprehensive compact would address those issues as well.”80 Prior to enactment of the Clean Water Act,81 “federal courts resolved interstate pollution conflicts under the federal common law of nuisance, which generally allowed the courts to balance competing interests and fashion a fair and equitable solution to the interstate conflict.”82 Following enactment of the Clean Water Act, however, little room remained for common-law remedies.83 In City of Milwaukee v. Illinois,84 the Supreme Court concluded that the

McCormick, Interstate Water Allocation, supra note 29, at 392. Professor Davis reached a similar conclusion: “Not only compacts motivated by quality concerns, but also those in which allocation affects quality should address water quality.” Davis, Guidelines, supra note 30 (citing C. Williams, Interstate Water Compact for the Potomac River Basin (1994) (unpublished student thesis, on file with the J. Reuben Clark Law Library, Provo, Utah). 80

81

Federal Water Pollution Control (Clean Water) Act, ch. 758, 62 Stat. 1155 (1948) (codified as amended at 33 U.S.C. §§ 1251–1387 (2000)).

82

Mary A. Stilts, Note, The Ever-Changing Balance of Power in Interstate Water Pollution: Do Affected States Have Anything to Say After Arkansas v. Oklahoma? 50 Wash. & Lee L. Rev. 1341, 1342 (1993) (citations omitted). See also Thomas W. Merrill, Golden Rules for Transboundary Pollution, 46 Duke L.J. 931, 940–54 (1997); Alan M. Fisch, Note, Arkansas v. Oklahoma: Formalizing EPA Authority to Mandate Compliance with an Affected State’s Water Quality Standards, 6 Tul. Envtl. L.J. 439, 443–44 (1993); William J. Holmes, Note, The Impact of Arkansas v. Oklahoma on the NPDES Process Under the Clean Water Act, 23 Envtl. L. 273, 275–81 (1993).

83

Middlesex County Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 13–18 (1981) (holding that Congress had not created an implied right of action for damages under the Clean Water Act).

84

451 U.S. 304, 317 (1981).

58

Commentary

59

Clean Water Act preempted the common-law remedies that had been applicable to interstate water pollution conflicts.85 The Federal Water Pollution Control Act Amendments86 (later to become known as the Clean Water Act) were enacted in 1972 after all of the water pollution control compacts and all but two of the 26 existing water allocation compacts had been negotiated by the states and consented to by Congress. The Clean Water Act was designed to facilitate the restoration and maintenance of the chemical, physical, and biological integrity of the waters of the United States. One of the mechanisms utilized to achieve these goals was the imposition of regulatory requirements. In essence, discharges into the waters of the United States are unlawful unless a National Pollutant Discharge Elimination System (NPDES) permit for such discharges has been issued prior to the discharge. With regard to interstate water pollution, the Supreme Court has concluded that the Environmental Protection Agency is authorized to impose conditions on the issuance of an NPDES permit in an upstream state requiring the discharger to comply with a downstream

85

Int’l Paper Co. v. Ouellette, 479 U.S. 481, 492 (1987) (the Clean Water Act preempted actions brought under the common law of nuisance). Professor Percival notes that the majority decision in International Paper concedes that the Clean Water Act does not directly address the question of preemption of state common law. After reviewing the goals and policies of the Clean Water Act, [Justice] Powell [writing for the majority] concluded that allowing affected states to impose their own separate discharge standards on source states inevitably would create a serious interference with achievement of the full purposes of Congress. Holding a discharger in another state liable for violating more stringent requirements of state nuisance law in the receiving state would compel the source to adopt different control standards than those approved by the EPA and its home state. The inevitable result would be to allow states to “do indirectly what they could not do directly—regulate the conduct of out-of-state sources.” This would undermine the predictability and efficiency of the Clean Water Act’s permit scheme and could subject a source to a variety of “vague” and “indeterminate” common law rules adopted by downstream states.

86

Robert V. Percival, The Clean Water Act and the Demise of the Federal Common Law of Interstate Nuisance, 55 Ala. L. Rev. 717, 767 (2004) (citations omitted). Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92–500, 86 Stat. 816 (codified in scattered sections of 33 U.S.C.).

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state’s water quality requirements.87 The Court’s holding that the “application of state water quality standards in the interstate context is wholly consistent with the Act’s broad purpose ‘to restore and maintain the chemical, physical, and biological

87

Arkansas v. Oklahoma, 503 U.S. 91 (1992). At issue in Arkansas v. Oklahoma was EPA authority to impose conditions on a Fayetteville, Arkansas, NPDES permit (upstream) as needed to prevent violation of Oklahoma’s water quality standards (downstream): Even if the Clean Water Act itself does not require the Fayetteville discharge to comply with Oklahoma’s water quality standards, the statute clearly does not limit the EPA’s authority to mandate such compliance. Since 1973, EPA regulations have provided that an NPDES permit shall not be issued “[w]hen the imposition of conditions cannot ensure compliance with the applicable water quality requirements of all affected States.” 40 CFR § 122.4(d) (1991); see also 38 Fed. Reg. 13533 (1973); 40 CFR § 122.44(d) (1991). Those regulations—relied upon by the EPA in the issuance of the Fayetteville permit—constitute a reasonable exercise of the Agency’s statutory authority. Congress has vested in the Administrator broad discretion to establish conditions for NPDES permits. Section 402(a)(2) provides that for EPA-issued permits “[t]he Administrator shall prescribe conditions . . . to assure compliance with the requirements of [§ 402(a)(1)] and such other requirements as he deems appropriate.” 33 U.S.C. § 1342(a)(2) (emphasis added). Similarly, Congress preserved for the Administrator broad authority to oversee state permit programs: “No permit shall issue . . . if the Administrator objects in writing to the issuance of such permit as being outside the guidelines and requirements of this chapter.” § 1342(d)(2). The regulations relied on by the EPA were a perfectly reasonable exercise of the Agency’s statutory discretion.



503 U.S. at 105 (footnote omitted) (edits in original). Reviewing this decision, Professor Percival concluded: This decision, which was founded largely on Chevron deference to the EPA’s exercise of discretion under the Clean Water Act, provides a potential avenue for downstream states with more stringent environmental standards to mitigate the impact of Ouellette’s exclusive focus on the law of source states. The Court in Arkansas v. Oklahoma interpreted Ouellette not as a bar on consideration of the impacts of transboundary pollution on downstream states, but rather as a limit on the remedies available to downstream states.



Percival, supra note 85, at 72 (citations omitted) (emphasis added). The reference to “Chevron deference” is to Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), which addressed the scope of agency authority to interpret a statute and noted the circumstances under which a reviewing court should defer to the agency interpretation.

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61

integrity of the Nation’s waters’”88 reinforces the authority of Congress reflected in Article VI.A(1) of the Model Compact to authorize the Commission both to adopt water quality standards and to issue NPDES permits for the interstate portion of the river basin. Article VI.A(1) also provides that “signatory states and Indian tribes shall exercise corresponding authority on the intrastate tributaries to such interstate streams.” Under the Clean Water Act, implementation and enforcement of the Act’s requirements may be delegated by EPA to the states. The language of Article VI regarding the Model Compact’s Water Quality Protection Program is intended to be used in situations where (a) one or more of the signatory parties to the compact either do not have authority to implement and enforce the requirements of the Clean Water Act or have failed to do so adequately, or (b) the signatory parties collectively agree to delegate their Clean Water Act authority to the Commission. In such situations, the Commission is authorized under Article VI.A(2) to assume jurisdiction and to classify the interstate waters of the river basin, to establish water quality guidelines and standards, and to promulgate rules and regulations as needed to fulfill the requirements of the Clean Water Act. In essence, the Commission rather than EPA would have the authority to determine whether an upstream state is in compliance with the Clean Water Act. As noted by one commentator: Contrary to the conclusion of many commentators, the Supreme Court in Arkansas v. Oklahoma intended the Chevron doctrine to govern only the relationship between the courts and the EPA in interstate water disputes. The ruling was not intended to subordinate the states to the EPA in the same way as the preemption analysis of past water pollution decisions did.89 Under Article VI.A(3), the Commission is also authorized to “establish a mechanism for the transfer of pollution allowances, including NPDES permits, consistent with the requirements of the Clean Water Act.” This language is based on a mechanism contained in the Murray-Darling Basin Agreement allowing the transfer of salinity credits. Such a mechanism, particularly if it included declining discharge offsets or non-point sources of water pollution that do not require NPDES permits (or

88

Arkansas v. Oklahoma, 503 U.S. at 106 (quoting 43 U.S.C. § 1251(a) (2000)).

89

Katheryn Kim Frierson, Comment, Arkansas v. Oklahoma: Restoring the Notion of Partnership Under the Clean Water Act, 1997 U. Chi. Legal F. 459, 470.

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both), could facilitate the achievement of Total Maximum Daily Load (TMDL) goals required by section 303(d) of the Clean Water Act.90 Article VI.B(1) authorizes the Commission to recommend chemical, physical, and biological guidelines for tributary waters as needed to fulfill the requirements of the Clean Water Act. In response, the signatory parties are required to “classify or reclassify the intrastate tributary waters and submit the classification or reclassification to the Commission for its review and recommendation.” The Commission may then recommend changes to the classifications as needed to achieve the goals of the Clean Water Act. Article VI.B(2) requires the signatory parties to “prohibit or control pollution of the intrastate tributary waters of the Basin to the extent necessary to maintain the quality of such waters to a degree at least equal to the requirements of the interstate stream immediately above the confluence of such streams.” This language is intended to facilitate the restoration and maintenance of water quality in both intrastate and interstate streams. In essence, the signatory parties would not be able to avoid the maintenance and restoration of an intrastate stream by blending those waters with the waters of an interstate stream. This language does not preclude the signatory parties from enacting more stringent requirements as needed to protect and maintain the signatory parties’ water resources (Article VI.B(3)). As noted by one member of the Advisory Committee, “virtually every western state has received delegation to administer Clean Water Act programs, including establishing water quality standards and issuing NPDES permits.” The provisions of Article VI are not intended to usurp that authority but rather to coordinate effective implementation of the Clean Water Act among the signatory parties and to provide broad enforcement authority under Article VI.A(4) supplemental to that exercised by the states and the EPA.91

90

33 U.S.C. § 1313(d) (2000). A TMDL is a tool for implementing water quality standards and is based on the relationship between pollution sources and in-stream water quality conditions. The TMDL establishes the allowable loadings or other quantifiable parameters for a waterbody and thereby provides the basis to establish water-quality-based controls. These controls should provide the pollution reduction necessary for a waterbody to meet water quality standards. See U.S. Envtl. Prot. Agency, Total Maximum Daily Load, Overview of Current Total Maximum Daily Load—TMDL—Program and Regulations, http://www.epa.gov/owow/tmdl/overviewfs.html.

91

Failure to comply with the requirements of the Clean Water Act may result in both civil and criminal sanctions. 33 U.S.C. § 1319 (2000). Citizen suits to enforce Clean Water Act requirements are also authorized. 33 U.S.C. § 1365 (2000).

Article VII Water Resources Management Program A. Water Supply and Requirements (1) Within two years of the effective date of this Compact, the signatory parties shall submit to the Commission (a) their respective estimated water requirements for specific projects or categories of uses, including adequate stream flows, for the next five years; (b) the assumptions underlying such estimates, including population projections; and (c) the estimated water supply available to meet such needs identified as to the sources of such supply, whether from surface flows, subsurface waters hydrologically connected to surface flows, non-tributary subsurface waters, imported waters, or developed waters. (2) Each state shall also provide the Commission with its plans to supplement such supplies, e.g., construction of new storage, diversion, desalination, watershed restoration, recycling/reuse, or wastewater treatment projects; expansion of existing projects; increased conservation; intrastate, interstate, or interbasin transfers; or other actions, along with the timing, location, increased yield, estimated cost, and impact on water quality of each component. (3) Based upon such submittals, the Commission shall develop a basin-wide water resources management program establishing construction or implementation priorities for the components of the states’ proposed programs and possible alternatives to certain components. The Commission shall encourage and support initiatives by local entities, such as informal watershed councils, and shall defer to such initiatives unless such deference would result in significant demonstrable adverse impacts on interstate waters. The Commission shall review the program at least every five years and revise it as appropriate. If the Commission determines that anticipated demand appears reasonably likely to exceed the expected supply in the next five-year cycle, it may direct the signatory parties to suspend authorization of any new uses until the supply and demand estimates are brought into reasonable balance.

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B. Commission Review and Approval of Projects

Proposed substantial new water resource development projects, major new surface diversions or subsurface water extractions, interstate transfers and related operational guidelines shall be subject to review and approval by the Commission and shall be approved if in conformity with the Commission’s water resources management program or with reasonable modifications to establish such conformity.

C. Conjunctive Use (1) The Commission shall study and encourage the conjunctive use of both natural and artificial water storage facilities and subsurface aquifers for the storage and management of Basin waters without regard to the ownership or location of such facilities. It shall develop plans for their most locationally, economically, and environmentally efficient utilization, including interstate water banking and adequate stream flow maintenance, in cooperation with and with the consent of their owners and the states where they are located upon reasonable terms and conditions. The Commission shall develop an accounting methodology to equitably charge the benefits of such conjunctive use to the apportionment of particular states or to the Basin as a whole and not solely to the storing state. Additional reservoir evaporation, stream flow, or aquifer losses attributable to particular arrangements shall be equitably charged to identifiable beneficiary states or the Basin as a whole, as appropriate. (2) Where proposed conjunctive use of a federal, state, or tribal owned reservoir would conflict significantly with an authorized purpose of such reservoir that cannot be resolved by agreement, the federal, state, or tribal operating agency shall seek legislative modification of such authorization to accommodate, if possible, the conflicting uses.

D. Flood Control (1) Flood Control Facilities The Commission may construct and operate projects and facilities deemed necessary or desirable for flood damage prevention or reduction. It shall store and release waters within the Basin, in such manner, at such times, and under such regulations developed in consultation with the United States Army Corps of Engineers, as it deems appropriate to meet various flood conditions. (2) Flood Plain Zoning (a) The Commission may determine the extent of the flood plains in the Basin and may establish, pursuant to its rulemaking authority

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65

under Article IV.B(3)(a), encroachment lines and delineate the areas subject to flood, including a classification of lands with reference to relative risk of flood and the establishment of standards for flood plain use that will safeguard the public health, safety, and property. The Commission may enter into agreements to provide technical and financial aid to any signatory party or its political subdivisions for the administration and enforcement of any ordinances or regulations implementing such standards. (b) The Commission may establish standards governing the uses of land in areas subject to flooding by waters in the Basin. Such standards shall not restrict the power of the signatory parties or their political subdivisions to adopt more restrictive standards. (c) The Commission may acquire any interest in lands and improvements thereon within an established flood plain for the purpose of restricting the use of such property so as to minimize flood hazards and to implement its flood plain restrictions.

Article VII Commentary Water Resources Management Program A. Coordination of Regional Supply and Demand Planning

This aspect of the Commission’s authority and responsibility assumes that all party states are engaged in varying degrees in assessing their water requirements over specific periods and the water supply likely to be available to satisfy them. What is not clear is whether and to what extent the programs of the individual states in an interstate river basin are coordinated with those of the other states, Indian tribes, and the federal agencies in the basin. Given the history of regional water resources planning, the authors operated on the realistic assumption that there is little, and not very effective, interstate coordination of development plans. Further, it is reasonable to assume that the lack of such coordination necessarily results in less than optimum siting, timing, scope, and character of various projects and programs for developing and utilizing additional supplies for various purposes throughout the Basin. With that background, the role proposed for the Commission is a relatively modest one (although it could be expanded if states should choose to). It would review the Basin states’ planning programs from a regional perspective, making recommendations for adjustments in these programs to better serve the interests of the entire Basin in its shared resources as efficiently and cost-effectively as possible. It would also exercise a review and approval authority to assure that new projects and programs with significant interstate impacts throughout the Basin are in general conformity with the coordinated state programs (Article VII.B). The Commission is expressly directed to defer to the growing movement toward local, small watershed programs as long as they have no significant interstate impacts.92 This approach is far different from those situations where a river basin commission takes the lead in developing a “comprehensive plan” for the basin that is then binding upon all of the basin states, such as under the Delaware and Susquehanna river basin compacts. Although the circumstances in those two

92

See generally Douglas Kenney, Resource Management at the Watershed Level (Rep. to the W. Water Pol’y Rev. Advisory Comm’n, 1997) [hereinafter Kenney, Resource Management], available at https://repository.unm.edu/dspace/ handle/1928/2794.

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Commentary

67

basins 45 years ago may have been unique because of the absence of any significant water planning by the basin states at that time, other than New York, the authors agree with the Advisory Committee that the current status of water planning of most states does not require a “top down” regional planning initiative. The current situation on the Lower Colorado River with respect to developing plans for meeting anticipated shortage conditions in California, Arizona, and Nevada is illustrative of how the states and the Commission might function under the Model Compact. On the Lower Colorado the Supreme Court held in Arizona v. California that under the Boulder Canyon Project Act the Secretary of the Interior has plenary power to allocate the stored water made available by the Hoover Dam for use in those three states. 93 However, the Secretary has not unilaterally taken the initiative to exercise that power to develop a “comprehensive federal plan” for meeting the anticipated shortages. Rather, the three Lower Division states of Arizona, California, and Nevada, through a coordinated process of discussions and hydrologic modeling, have been given the opportunity to develop projects and programs in their individual states that they believe will best meet their needs. Their tentative proposals, sent to the Secretary in February of 2006, would, inter alia, defer certain major projects planned by Nevada and substitute others of benefit to all three states for an interim period until the Nevada projects are on line. The Secretary, exercising the authority to review and perhaps modify some of the proposals, much in the manner as proposed for the Model Compact Commission, would hope to find agreement among all seven basin states for final secretarial action, but would be authorized to implement the proposed modifications in any event. The Model Compact in essence provides a forum for each basin state to review the proposed projects and programs of the other basin states and make recommendations for mutually beneficial adjustments. Where those recommendations make sense to a majority of the Commission members, the Commission would have the authority to make such adjustments and to review new projects and programs with significant interstate impacts for conformity to the regional consensus.

B. Conjunctive Use

Conjunctive use of natural and artificial water storage facilities and of such facilities and subsurface aquifers for the storage and management of water has long been practiced in a number of western states with good results and is increasingly being utilized to address shortage issues, as the Western Water

93

373 U.S. 546, 565–69, 585–95 (1963) (No. 8, Orig.).

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Article VII Policy Review Advisory Commission noted in its 1998 report.94 On an interstate basis, the Secretary of the Interior, at the initiative of the seven Colorado River Basin states, is currently studying the conjunctive use of Lakes Mead and Powell on the Colorado River and underground storage by agencies in Arizona and California to minimize the impacts of shortage conditions under the Colorado River Compact and other components of the so-called Law of the River. Consequently, Article VII.C directs the Commission to study, encourage, and develop plans for conjunctive use of such facilities in the Basin.

94

W. Water Pol’y Rev. Advisory Comm’n, supra note 2, at 2–6, 3–8, 3–10 to 3–11, 5–6, 5–20 (1998).

Article VIII Enforcement of Compact Obligations and Resolution of Other Disputes A. Enforcement of Compact Obligations (1) Alleged Violation and Response (a) Upon the basis of Division monitoring or substantial verified factual evidence from a reliable, identified third party that a signatory party is (a) not maintaining required stream flows, (b) impermissibly exceeding its Compact apportionment, or (c) permitting point source discharges or non-point source land use practices or activities that are violating Commission-approved interstate water quality standards, the Commission shall request the representative for that party to respond to such allegation in writing within 30 days. Such response shall either (a) concede the accuracy of the facts underlying the allegation, but assert that the situation is attributable to specified actions or force majeure events beyond its control; (b) concede the accuracy of the allegation and propose a schedule for detailed remedial action to be funded solely by such member; or (c) dispute, with specification, the allegation in whole or part and request further consultation with the Division. (b) A member’s formal concession before the Commission of a Compact violation and implementation of a Commission-approved plan for remedial actions shall excuse such member from liability to any Commission member or its agencies for any damages sustained as a result of such violation, provided that nothing herein shall adversely affect the rights of private parties to damages. (2) Commission Investigation The Commission member’s response shall be promptly referred to the Division for review and submittal of a recommended course of action to the Commission within 30 days. With respect to concessions under paragraph A(1)(a), the Division shall recommend that either (a) the alleged violation be excused by the Commission as beyond the member’s control, (b) the member’s proposed remedial action be approved, or (c) the member’s proposed remedial action be modified and approved in whole or part.

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(3) Dispute Resolution Referral With respect to the member’s disputation of the allegation, if further discussions do not resolve the dispute within 45 days, the dispute resolution procedures provided for in part B of this Article may be initiated by any Commission member. No Compact party shall sue for damages during the pendency of such proceedings before the Commission. (4) Enforcement of Sanctions Failure to resolve the dispute through the alternative dispute resolution process shall authorize the Commission to (a) suspend the voting rights of the alleged offending party under the Compact; (b) suspend any ongoing or planned implementation of Commission projects or programs benefiting that party, including supplemental apportionments; or (c) as a last resort, take appropriate judicial action for injunctive relief to remedy the alleged violation and allow the signatory states to seek damages for such violation.

B. Dispute Resolution (1) Duty to Seek Dispute Resolution Any dispute respecting the interpretation of the Compact or any Commission order, rule, regulation, or action issued or taken thereunder, including reliance on contested scientific data, shall first be presented by a signatory party to the Commission for possible resolution before seeking judicial relief. A party’s failure to do so or to pursue such resolution in good faith shall subject it to liability to any defendant parties who are parties to later litigation regarding that dispute for their litigation costs, regardless of the outcome of such litigation. (2) Commission Referral to Council or Division A petition for dispute resolution shall be filed with the Commission clearly defining the dispute and the disputants’ positions, supported by such written statements of material facts and arguments as the Commission may by rule provide. The Commission shall require the parties to meet and confer and to exchange information regarding the dispute. If the matter is not resolved within 30 days, the Commission shall refer the petition to the Council or Division, depending on the subject matter of the dispute, for initial resolution. The Commission may establish categories of disputes for resolution depending on their importance or urgency and direct the Council and Division to schedule them for resolution accordingly.

Enforcement of Compact Obligations and Resolution of Disputes 71 (3) Appeal to the Commission (a) If a dispute cannot be resolved by the Council or Division within an agreed-upon schedule, a petitioner party may appeal to the Commission for a decision. (b) If a petitioner party is dissatisfied with the decision of the Council or Division, it may appeal to the Commission within 60 days for a reversal or modification of the decision appealed from. Failure to appeal the decision of the Council or Division shall make such decision the final action of the Commission on the dispute. (4) Alternative Dispute Resolution If the Commission cannot resolve the dispute within an agreed upon schedule, the matter shall be designated for attempted resolution by mediation or arbitration. If the Commission does not specify a method for such alternative dispute resolution, the method and procedures shall be established by a majority vote of the petitioner party and other signatory parties with a substantial interest in the dispute. A party’s interest is substantial if resolution of the dispute seems likely to result in significantly decreasing the amount or quality of water available to it; significantly impairing its ability to monitor or administer water use, availability, or quality; or significantly increasing its financial obligations. The method for selecting mediators or arbitrators and their qualifications shall be determined by the petitioner party and other parties with a substantial interest in the dispute by majority vote. If the interested parties cannot reach agreement on any of the methods and procedures, the Commission shall decide the matter. (5) Exhaustion of Commission Authority When the Commission has decided a dispute or it has been the subject of an unsuccessful alternative dispute resolution procedure, the parties to the dispute shall be deemed to have exhausted their administrative remedies under the Compact and may initiate litigation to resolve the dispute in any court of competent jurisdiction free of the sanction imposed by section B(1) of this Article.

Article VIII Commentary Enforcement of Compact Obligations and Resolution of Other Disputes Many western compacts require unanimity of the signatory parties for official action enforcing seemingly clear compact obligations or interpreting ambiguous compact provisions, thus conferring a veto power in a single state that can preclude its compact partners from administrative enforcement of asserted compact rights and obligations or clarification of compact terms. Although some two-state compacts provide a tie-breaking mechanism to avoid this problem,95 absent such an express provision, the Supreme Court will not dictate some kind of tiebreak procedure.96 This situation gives leverage to an upstream state alleged to be in violation of a compact to “stonewall” discussions and negotiations in the commission forum, since by virtue of its geographical advantage (for example, “highority is better than priority”) it may have already stored or used the volumes in dispute. This necessarily forces its compact partners to seek Supreme Court relief, which can be just as expensive and time consuming as equitable apportionment litigation, if not more so. Thus, Kansas and Texas have been driven to seek such relief under four compacts with their upstream neighbors, Colorado, Nebraska, and New Mexico, and the results in two of those cases may alter traditional compact commission behavior for the better. In Texas v. New Mexico, the Court held New Mexico liable for damages for breach of its obligations under the Pecos River Compact97 and the Texas claim was settled for $14 million.98 On the Arkansas River, the Court held that Colorado’s breach of the Arkansas River Compact subjected it not only to damages but also to a substantial amount of prejudgment interest.99 The Court ultimately awarded Kansas $38 million.100 Compact litigation plainly now has a substantial new cost factor beyond

95

See supra note 29.

96

Texas v. New Mexico, 462 U.S. 554, 564–567 (1983) (No. 65, Orig.).

97

482 U.S. 124, 129–32 (1987) (No. 65, Orig.).

98

Texas v. New Mexico, 494 U.S. 111, 111 (1990) (No. 65, Orig.). See also Appendix B-24, the Pecos River Compact, ch. 184, 63 Stat. 159 (1949).

99

533 U.S. 1, 11 (2001) (No. 105, Orig.).

100

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Kansas v. Colorado, 543 U.S. 86 (2004) (No. 105, Orig.).

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lawyers and experts. In Kansas v. Nebraska, Kansas waived any damage claim as part of the settlement of the case.101 To implement a principal purpose of the Model Compact to avoid interstate litigation in the Supreme Court, the Advisory Committee unanimously stressed the importance of the Commission having adequate authority to enforce the Compact obligations against the signatory parties and to resolve other disputes under the Compact. Article VIII thus provides an administrative procedure for Commission consideration of (1) claims that a signatory party is not in compliance with one or more of its Compact obligations, and (2) disagreement or uncertainty over the interpretation of Compact language or Commission orders, regulations, or guidelines. Inasmuch as the Supreme Court has approved the creation of dispute resolution mechanisms in recent settlements of interstate equitable apportionment and compact litigation in Nebraska v. Wyoming102 and Kansas v. Nebraska,103 Article VIII builds on the systems approved in those two cases.

A. Enforcement of Compact Obligations (1) Violations A party alleged to be in violation of any Compact obligation may concede the accuracy of the Complainant’s asserted facts and either plead a force majeure defense or concede the violation and propose detailed remedial action. Conceding the claimed violation and implementing a Commission-approved plan of remedial action would relieve the party of any liability to any Commission member or its agencies, but not private parties, for any damages resulting from the violation. This provision is designed to encourage candor, cooperation, and compliance. In the alternative, the party may dispute the claimed violation and request further consultation with the Division. The party’s response shall be referred to the Division for discussion and a recommended course of action. If the matter is not resolved before the Division within 45 days, any Commission member may invoke the dispute resolution procedures of subpart B herein. Legal action for injunctive relief or damages would be prohibited for the duration of the pending proceedings. (2) Sanctions Failure to resolve the dispute shall authorize the Commission to suspend the party’s voting rights and the benefits of any projects or programs

101

538 U.S. 720 (2003) (No. 126, Orig.).

102

534 U.S. 40 (2001) (No. 108, Orig.) (Decree).

103

538 U.S. 720.

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Article VIII under the Compact, including supplemental apportionments, and, as a last resort, to seek injunctive relief against the party and authorize the other party states to seek damages.

B. Resolution of Other Disputes

Article VIII.B(1) imposes a mandatory duty on a compact party to first seek resolution of any dispute under the Compact pursuant to the procedures provided in Article VIII before initiating litigation. Failure to do so subjects such party to the obligation to pay all of the litigation costs of the parties who may later become involved in any litigation on the subject in dispute, which recent experience has shown can be substantial. The goal is to keep the parties involved in good faith discussions regarding such issues until an administrative resolution by the Commission or a negotiated agreement among the parties is achieved. A petition for dispute resolution would first be filed with the Commission, which would direct the parties to meet, confer, and exchange data about the dispute. If the dispute is not resolved, the Commission shall refer it to either the Council or Division, depending on the subject matter of the dispute, for an initial decision. If the dispute cannot be resolved within an agreed-upon timeframe or upon the issuance of a timely decision by the Council or Division, the matter may be appealed to the Commission. Failure to do so shall make the Council or Division decision the final action of the Commission.104 Article VIII.B(4) provides that, if the Commission cannot decide an appealed matter within an agreed-upon timeframe, it would be designated for attempted resolution by mediation or arbitration, either binding or nonbinding, as a majority of the affected parties shall agree upon. Which method to employ and the details of such procedure are left to the affected parties rather than prescribing a particular procedure, to the end that the affected parties may adapt them to the nature of the dispute and continue discussing potential resolution as long as possible. Some commenters suggested it would be better to provide certainty as to the process to be followed by mandating it in the compact. However, the authors believe that the discussions involved in choosing a particular procedure and a mediator or arbitrator may well be conducive to settlement of the dispute. Following a Commission decision or exhaustion of the alternative dispute resolution process, any party may initiate litigation free of the compact sanction of paying the other parties’ litigation costs.105

104

Articles VIII.B(2) and (3).

105

Article VIII.B(5).

Article IX Interagency Coordination and Public Participation A. Interagency Coordination The Commission, Council, and Division representatives shall be responsible for maintaining liaison with and reporting Commission activities or requests to their respective constituencies. When a vote is to be taken on a matter and there are conflicting views within the state, tribal, or federal constituent agencies, the representative shall make a good-faith effort to achieve a consensus position. Where such a consensus cannot be achieved, the representative shall nevertheless vote a single position, noting any significant dissenting views.

B. Advisory Committee (1) The Commission shall appoint a multi-interest, multi-disciplinary Advisory Committee whose membership shall include, for such terms as the Commission deems appropriate, representatives of (a) the general public with recognized interests in the use of water resources of the Basin for beneficial purposes, including, as applicable, irrigation, municipal and domestic use, power generation, navigation, recreation, fish and wildlife habitat maintenance, aesthetic enjoyment, livestock forage maintenance, industrial use, and spiritual or religious uses; (b) selected subbasins of regional significance; (c) regional federal representatives of the Bureau of Reclamation, U.S. Geological Survey, Fish and Wildlife Service, National Marine Fisheries Service, Environmental Protection Agency, Federal Energy Regulatory Commission, Corps of Engineers, and the National Oceanic and Atmospheric Administration, if conducting programs in the Basin; and (d) academicians or private sector consultants with recognized expertise in surface and subsurface water hydrology, fish and wildlife, water resource economics, water quality, biology, and numeric modeling. A member with several qualifications may be considered to fulfill the requirements for each of those specialty areas. (2) The Committee shall meet at least twice a year, once with the Council and once with the Commission, and at the further call of either body. The Committee’s responsibilities shall be (a) to identify present and future problems or initiatives related to the Compact with respect to the uses of the Basin’s waters and to recommend necessary and appropriate means

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Article IX to address those matters, either by action of the Commission or state or federal legislation or administrative action, and (b) to provide its views on any matters presented to it by the Commission. The Commission shall provide a reasonable per diem expense allowance for Committee attendees requesting such reimbursement.

C. Reports

The Commission shall keep the public informed of its ongoing activities through an electronic website or such other methods as the Commission determines appropriate. It shall also prepare an annual report in electronic and printed formats that shall contain budgetary and financial information and relevant statistics, data, and interpretative commentary respecting the use and condition of the Basin’s waters as well as a summary of meetings with the Advisory Committee and significant Commission program activities. The annual report shall be distributed to the legislative and executive branches of the signatory parties and their administrative agencies conducting programs in the Basin and be available for purchase by the general public.

Article IX Commentary Interagency Coordination and Public Participation During preparation of the Model Compact, the Advisory Committee stressed the importance of federal, state, tribal, and local interagency coordination in the allocation and management of interstate water resources.106

A. Communication and Consensus

Article IX.A provides that the Commission, Council, and Division representatives are responsible “for maintaining liaison with and reporting Commission

106

In fact, one prominent commentator on natural resources and environmental issues has noted that the need for interagency coordination goes beyond simply the allocation and management of water: [T]he watershed of the 1990s has become a focal point for addressing fundamental issues of resource management and democratic administration, emphasizing many of the ideas expressed a century earlier by John Wesley Powell—including the importance of a regional perspective, the integration of institutions for land and water, the link between environmental sustainability and community stability, and participatory government.



Kenney, Resource Management, supra note 92, at A-42. The importance of interagency coordination among all levels of government has been addressed by a number of other scholars, including Professor Dan Tarlock: “Protecting healthy watersheds and restoring degraded ones is one of this country’s major unmet environmental challenges. Because watersheds do not respect political boundaries, effective watershed conservation will require cooperation and coordination among all levels of government, including local units.” A. Daniel Tarlock, The Potential Role of Local Governments in Watershed Management, 20 Pace Envtl. L. Rev. 149, 149 (2002). The “spirit of John Welsey Powell” was also invoked by Barbara Cosens in her discussion of the coordination mechanisms contained in the Fort Belknap Compact between the State of Montana and the Fort Belknap Indian Tribe: [T]he compact does establish institutions that set the stage for the residents of the valley itself, in the spirit of John Wesley Powell, to resolve future water problems within the basin. The compact does this by setting up a system of coordination between disparate governmental entities, thus providing a forum for future dialogue on the direction of the valley with respect to water.



Barbara Cosens, A New Approach in Water Management or Business as Usual? The Milk River, Montana, 18 J. Envtl. L. & Litig. 1, 49 (2003).

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78

Article IX activities or requests to their respective constituencies.” This provision was included specifically both to mandate and to facilitate interagency coordination. Of perhaps greater significance is the language contained in Article IX.A regarding the responsibility of Council and Division representatives to “make a good-faith effort to achieve a consensus position” when there are “conflicting views within the state, tribal, or federal constituent agencies.” The purpose of this language is to establish both goals and expectations regarding communication between and among the signatory parties. The importance of such communication on a practical level has been addressed by a member of the Advisory Committee who is also the Colorado representative on a number of compact commissions. With regard to the Costilla Creek Compact, he concluded that “[a]lthough streamflow gauging stations equipped with remote access instrumentation and the Operating Manual with an electronic accounting spreadsheet are available to assist in daily water administration, the communication and collaboration efforts among the water users and state administration officials are the keys to successful water allocation.”107

B. Legitimacy and Transparency

The language of Article IX.C regarding reporting and publicity requirements is representative of language contained in the vast majority of interstate water compacts. Article IX.C imposes on the Commission a duty to “keep the public informed” of Commission activities. To fulfill this requirement, the

107

Knox, Costilla Creek Compact, supra note 33, at 476. The role of communication in successful water allocation is illustrated by the La Plata River Compact, Appendix B-19: Effective interstate water administration . . . is based upon knowing the amount of water available at the two index streamflow gaging stations, the amount and location of ditch diversions, and the travel time between key locations in the system. Advancements in water measurement and reporting technologies aid water officials in the daily administration of this ephemeral river. For example, the two streamflow gaging stations are equipped with remote sensing equipment that instantaneously measures river height at fifteen minute intervals to complement the continuous streamflow recorders. A satellite transmits this information at regular intervals. The information is then transformed into streamflow amounts for viewing by water officials and public water users in both states. This instant and perpetual source of information provides an effective tool to monitor and distribute the greatly varying water supplies to intrastate water users and to meet compact delivery requirements with the highest level of efficiency and confidence. It also subjects water administration officials to intense scrutiny by both interstate and intrastate water users who may not have full appreciation or knowledge of transit losses, the travel times between key locations, and the changing river call priority.

Kenneth W. Knox, La Plata River Compact, supra note 24, at 116–17 (citations omitted).

Commentary

79

Commission may use any method that the Commission deems appropriate. If the Commission determines that additional reports from the signatory parties are needed to properly inform the public, the Commission has ample authority under Article IX.C to require such reports. The Commission is also required to prepare an annual report, which is to include budgetary and financial information, relevant statistics, data, and an “interpretative commentary” regarding the water resources of the basin. This report, which should also include a summary of Advisory Committee meetings and significant Commission activities, is to be “distributed to the legislative and executive branches of the signatory parties and their administrative agencies conducting programs in the Basin.”108 The reporting and publicity requirements contained in Article IX.C address the need for Commission activities to be both legitimate and transparent. These requirements also facilitate interagency coordination and are essential for meaningful stakeholder involvement. C. Advisory Committee An Advisory Committee, to be appointed by the Commission, is established under Article IX.B. This Committee (which is to be both “multi-interest” and “multi-disciplinary”)109 is intended to provide a means by which individuals and both governmental and non-governmental entities with waterrelated expertise and interests might be involved in Commission activities. It is also intended to provide a means for public participation in activities of the Commission, as are the provisions regarding open meetings. Such participation by stakeholders is critical to both the success and the legitimacy of Commission activities. It has been suggested that any entity with authority analogous to that of the Commission needs to provide opportunities for stakeholder participation. Specifically, the need for decision-making mechanisms that facilitate public participation and provide clear outcomes was noted.110 108

Article IX.C.

109

See Article IX.B(1) for various suggestions of representatives.

110

Kenney, Institutional Options, supra note 23, at 839. Accord DuMars, supra note 33. Public participation is also important regarding the development of appropriate models to be used in river basin management: “By involving the various stakeholders early and often in development of the technical analysis models, the study management team is hoping to build trust and develop a solution that best reflects public values.” Cardwell et al., supra note 35. Accord Daniel P. Loucks, Watershed Planning: Changing Issues, Processes and Expectations, Water Resources Update, No. 111, Spring 1998, at 38, 41 (the successful use of computer models “depends in large part on the confidence and feeling-ofownership stakeholders have in those models”).

80

Article IX The importance of mechanisms to facilitate public participation was stressed repeatedly by the Advisory Committee, echoing the views of many commenters: Integrating and resolving conflicts over land use, water supply diversions, water quality protection, navigation, flood damage reduction, recreation, hydropower, and ecosystem restoration in watersheds involves nothing less than the active participation of all of [the] impacted stakeholders. This includes the participation of professionally trained ecologists, economists, engineers, planners, and others. It includes the involvement of appropriate Federal, state and local governmental agencies. But these professionals and government agencies can not do this job by themselves. Watershed planning today requires the contributions of all impacted stakeholders having any interest in the resources of the watershed.111 Given that issues relating to the allocation and management of water resources are cross-cutting issues that involve multiple stakeholders, differences between stakeholders are certain to become apparent whenever the Commission proposes actions of various kinds. However, in order to facilitate an integrated approach to water resources management, it is necessary that these differences be both expressed and reconciled, if possible: “Conflict among stakeholders has to be resolved by dialogue and compromise. Somehow all stakeholders have to feel their concerns and desires are being considered and that they are a part of an equitable decision making process.”112 It is reasonable to impose this obligation on the Commission, the Council, and the Division. In fact, given that stakeholder interests tend to be focused on specific issues or concerns, it is unlikely that implementation of the Compact would be successful if it failed to include stakeholders in the decision-making process.

111

Loucks, supra note 110, at 38, 39. In a study of five large-scale water problems, Grigg reached a similar conclusion: “The successes and failures shown in the cases suggest the benefits of a comprehensive and collaborative approach with effective stakeholder involvement.” Neil S. Grigg, Management Framework for Large-Scale Water Problems, 122 J. Water Resources Plan. & Mgmt. 296, 298 (1996) (emphasis added).

112

Grigg, supra note 111; Loucks, supra note 110.

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81

In essence, the allocation and management of Basin water resources involves nothing less than the active participation of all impacted stakeholders. The provisions of Article IX are intended to help achieve this goal.113 With regard to stakeholder involvement in the allocation and management of interstate water resources, the importance of achieving these goals was expressed by John Thorson, a prominent water lawyer and member of the Advisory Committee: “At the end of the day, maybe the process is as important as any result.”114

113

For example, the Commission is authorized under Article IV.F(1) to establish rules regarding the conduct of Commission, Council, Division, and Advisory Committee meetings. With only limited exceptions as provided by the Commission, it is expected that all meetings of the Advisory Committee will be open to the public. The Commission may wish to provide a process for the taking of comments from the general public during open meetings on topics and at times for which there is significant public interest.

114

John E. Thorson, Visions of Sustainable Interstate Water Management Agreements, 43 Nat. Resources J. 347, 368 (2003).

Article X A. Capital Budget

Budgeting and Funding

The Commission shall annually adopt a capital budget listing all capital projects it proposes to undertake or continue during the budget period and containing a statement of the estimated cost of each project and the method of its financing.

B. Operating Budget and Assessments

The Commission shall annually adopt a current operating expense budget for each fiscal year, including (1) estimated expenses for administration, operation, maintenance and repairs for each project, together with its cost allocation, and (2) estimated revenues from charges for supplemental apportionments and all other sources. Following the Commission’s adoption of the operating budget, the Commission’s executive director shall notify the signatory parties and their principal budget officers of the amounts due under existing cost-sharing agreements for each project and the amount required to balance the operating budget. Responsibility for any remaining deficit shall be allocated equitably among the signatory parties by unanimous vote of the Commission based upon land area or population within the Basin, the relative size of their respective apportionments, or such other equitable factors as the Commission may determine.

C. Payment of Assessments

The signatory parties shall include the amounts so assessed in their respective currently proposed budgets. Such amounts shall be payable to the Commission in quarterly installments during its fiscal year, provided that the Commission may draw upon its working capital to finance its current expense budget pending remittances by the signatory parties.

D. Sanctions for Failure to Pay Assessments

82

Failure of any signatory party to pay all of its assessment in a timely fashion shall authorize the Commission to suspend the delinquent party’s voting rights under the Compact and any ongoing or planned implementation of Commission projects or programs, including supplemental apportionments, benefiting that party until such assessment is paid.

Budgeting and Funding

83

E. Annual Independent Audit (1) As soon as practical after the closing of the fiscal year, an audit shall be made of the financial accounts of the Commission. The audit shall be made by qualified certified public accountants, selected by the Commission, who have no personal interest direct or indirect in the financial affairs of the Commission or any of its officers or employees. The report of audit shall be prepared in accordance with accepted accounting practices and shall be filed with the chairman and such other officers as the Commission shall direct. Copies of the report shall be distributed to each commissioner and shall be made available for public distribution. (2) Each signatory party by its duly authorized officers shall be entitled to examine and audit at any time all of the books, documents, records, files, and accounts and all other papers, things, or property of the Commission. The representatives of the signatory parties shall have access to all books, documents, records, accounts, reports, files, and all other papers, things, or property belonging to or in use by the Commission and necessary to facilitate the audit and they shall be afforded full facilities for verifying transactions with the balances or securities held by depositaries, fiscal agents, and custodians. (3) The financial transactions of the Commission shall be subject to audit by the General Accounting Office in accordance with the principles and procedures applicable to commercial corporate transactions and under such rules and regulations as may be prescribed by the comptroller general of the United States. The audit shall be conducted at the place or places where the accounts of the Commission are kept.

Article X Commentary Budgeting and Funding The Model Compact tries to minimize the impact of its operations and programs on the party treasuries by conferring broad financing powers on the Commission and by authorizing pricing of supplemental apportionments, user fees, and cost sharing arrangements in connection with particular programs and projects, as well as taxation of the regional beneficiaries of those programs.115 The provisions of Article X regarding budgeting and funding are representative of similar provisions contained in a number of interstate water compacts. Articles X.A and X.B require the Commission to adopt an annual capital and operating budget, respectively. Once the capital and operating budgets have been adopted, the executive director of the Commission is to notify the signatory parties of the “amounts due under existing cost sharing agreements for each project and the amount required to balance the operating budget.”116 If any deficit remains after the Commission informs the signatory parties of their respective obligations, the Commission is authorized to allocate the deficit among the signatory parties “based upon land area or population within the Basin, 115

See commentary on Article IV, supra. Alternative means of funding an entity such as the Commission are discussed in John E. Thorson, A Proposal for a Missouri River Corridor Trust, 23 Pub. Land & Resources L. Rev. 77, 90–98 (2002) (pt. VII. Trust Finances). In interstate basins with significant water quality problems, such as the Great Lakes and Chesapeake Bay, a compact commission might well consider the October 2004 proposal of the Chesapeake Bay Watershed Blue Ribbon Finance Panel to take dramatic action to meet the $15 billion initial capital costs and $2.7 billion annual operating costs of the bay restoration components of the Chesapeake Bay Program. The Panel recommended establishing a Chesapeake Bay Financing Authority capitalized by the federal and state governments on an 80/20 percent basis with the capacity to make loans and grants for various projects. It would be charged with developing a sustainable revenue stream derived from various state sources, such as surcharges on water and sewer fees, septic fees, and development fees. Chesapeake Bay Watershed Blue Ribbon Finance Panel, Saving a National Treasure: Financing the Cleanup of the Chesapeake Bay 4, 24 (2004), http://www.chesapeakebay.net/pubs/blueribbon/Blue_Ribbon_fullreport.pdf. Maryland has already initiated one of the most innovative and progressive water quality funding programs in the nation by imposing a $2.50 per month surcharge on sewer bills and $30 per year on septic system owners. Id. at 27.

116

Article X.B.

84

Commentary

85

the relative size of their respective apportionments, or such other equitable factors as the Commission may determine.”117 Under Article X.C, the signatory parties are obliged to pay the amounts assessed by the Commission. Should a signatory party fail to pay the assessments in a timely manner, the Commission is authorized under Article X.D to suspend that party’s voting rights and to suspend “any ongoing or planned implementation of Commission projects or programs, including supplemental apportionments, benefiting that party until such assessment is paid.”118 Though these provisions may sound a bit Draconian, they are necessary to justly and equitably apportion the costs both of the Commission and of Commission projects and programs. Absent such provisions, signatory parties that have not paid their annual assessments but that nonetheless benefit from the initiatives of either the Commission or other signatory parties would become “free riders.” One way to address the “free rider effect” is for sanctions for the nonpayment of assessments to be sufficiently stringent to deter such behavior. The authors are of the opinion that the sanctions contained in Article X.D should be sufficient regarding all of the signatory parties except the United States (should the United States be a signatory party). Because of Congress’s misguided decision in 1997 to discontinue payment of its share of the annual assessment of operating costs for both the Delaware River Basin Commission (DRBC) and the Susquehanna River Basin Commission (SRBC),119 it was felt necessary to include provisions for sanctions for such default. Although these provisions might have little deterrent effect 117

Article X.B.

118

Article X.D.

119



As part of the 1997 Emergency Supplemental Appropriations Act, the Congress deleted federal funding of the office of federal commissioner for the DRBC and SRBC as well as the federal government’s financial participation as a signatory party to those compact commissions commencing in October of 1997. . . . Statements in the July eleventh 1995 Congressional Record indicate that the Congress felt that the compact commissions serve the states much more than the federal government, and that river basin management is predominately a state concern and should be funded accordingly. Featherstone, Existing Interstate Compacts, supra note 39, at 281. Accord Featherstone, Interstate Organizations, supra note 39. The decision to terminate federal contributions to the Delaware and Susquehanna Basin Commissions allegedly was “influenced by a January 1995 report of the Heritage Foundation that described the commissions as providing only regional benefits. . . .” Based on this recommendation, funding for the two commissions was not included in the FY 1998 budget. However, “Congress . . . made no effort to withdraw the federal government from the compacts as it could under Section 1.4 of both compacts.” Cairo, supra note 39, at 129 (citation omitted).

86

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on Congress if it chooses to disregard its sovereign commitments under a compact, they should influence the states and tribes to honor their commitments to fund the Commission’s programs. Article X.E imposes an annual audit requirement.120 As noted previously, Commission operations need to be transparent if Commission decisions are to be considered both legitimate and credible. The audit requirement, particularly the provision of Article X.E(1) that the audit “shall be made available for public distribution” so as to facilitate public participation in Commission activities, is key to providing the requisite transparency.

The language of Article X is derived from Appendix B-14, the Delaware River Basin Compact, art. 14.11, and Appendix B-33, the Susquehanna River Basin Compact, art 15.11, which, because the United States is a signatory party, necessarily must involve the General Accounting Office in an annual audit. This assumes, of course, that the United States is paying its annual assessments. As recent history has demonstrated, this is not a safe assumption. See supra note 119 and accompanying text. 120

Article XI Relationship of Compact to Existing Law A. State and Tribal Laws

Except as expressly preserved herein or in the congressional legislation consenting to this Compact, any present or future state or tribal laws or regulations that are irreconcilably inconsistent with any provision of this Compact are superseded by such Compact provisions.

B. Federal Laws (1) Except as expressly preserved herein or in the congressional legislation consenting to this Compact, any present federal laws or regulations relating to the waters covered by this Compact that are irreconcilably inconsistent with any provision of this Compact are superseded by such Compact provisions. (2) Any future federal laws, regulations, or judicial or administrative decisions that directly or indirectly negate or significantly modify the Compact’s interstate water apportionments or the powers or programs of the Commission without the consent of the signatory states shall authorize the Commission, by a majority vote of the signatory state members, to terminate the Compact, subject to the conditions of Article II.B(2). Such termination shall be effective 180 days after written notice by the Commission to the President and Congress. (3) For the purpose of providing a uniform system of laws applicable to the Commission, the Council, the Division of Scientific Analysis, and the Advisory Committee relating to the making of contracts, conflictsof-interest, financial disclosure, open meetings, advisory committees, disclosure of information, judicial review, and related matters, the federal laws applicable to such matters, including but not limited to the Administrative Procedure Act (5 U.S.C. § 500 et seq.), the National Environmental Policy Act (42 U.S.C. § 4321 et seq.), and the Federal Advisory Committee Act (5 U.S.C. Appendix), shall apply to the extent that the Commission shall deem appropriate.

87

88

Article XI

(a) In applying the federal laws applicable to financial disclosure under the preceding sentence, such laws shall be applied to members of the Commission, the Council, the Division of Scientific Analysis, and the Advisory Committee without regard to the duration of their service or the amount of compensation received for such service. (b) For the purpose of judicial review of any action of the Commission or challenging any provision of this Compact, notwithstanding any other provision of law, the courts of the United States shall have exclusive jurisdiction of any such review.

C. United States Supreme Court Decrees

Nothing in this Compact shall adversely affect any interstate water allocation or other rights that a signatory state may have been awarded by a United States Supreme Court decree in an equitable apportionment or interstate compact action prior to entering into this Compact, except where expressly provided in this Compact or by unanimous vote of the Commission.

Article XI Commentary Relationship of Compact to Existing Law Parties involved in disputes over interstate water resources do not necessarily live happily ever after following resolution of a conflict by compact. As existing statutes and case law may be modified by the ratification of an interstate water compact, existing interstate compacts may be modified, either intentionally or inadvertently, by subsequent federal statutes. Article XI addresses the relationship of the Model Compact to state and tribal laws (Article XI.A), to federal law (Article XI.B), and to decrees of the United States Supreme Court (Article XI.C). In order to understand these relationships, it is important to remember that an interstate water compact, once it has been ratified by the party states and consented to by Congress, becomes “a law of the United States.”121 Consequently, under the Supremacy Clause of the Constitution,122 such compacts as federal law would supercede inconsistent state laws, unless the compact or the congressional consent

121

New Jersey v. New York, 523 U.S. 767, 811 (1998) (No. 120, Orig.) (quoting Cuyler v. Adams, 449 U.S. 433, 438 (1981) and citing Texas v. New Mexico, 462 U.S. 554, 564 (1983) (No. 65, Orig.)). In Texas v. New Mexico, a conflict arising under the Pecos River Compact, which provided equal representation for both states, Texas asked the Supreme Court to fashion an equitable remedy to resolve a deadlock on the Pecos River Commission by providing for a tiebreaking vote. The Court refused, stating that such a fundamental restructuring of the Commission would require congressional action because the Pecos River Compact became federal law once it had been consented to by Congress. “[U]nless the compact to which Congress has consented is somehow unconstitutional, no court may order relief inconsistent with its express terms.” 462 U.S. at 564. See also Appendix B-24, the Pecos River Compact, ch. 184, 63 Stat. 159 (1949). Consequently, “the United States Supreme Court has shown a firm unwillingness to do anything other than enforce compacts according to their terms.” Robert Haskell Abrams, Interstate Water Allocation: A Contemporary Primer for Eastern States, 25 U. Ark. Little Rock L. Rev. 155, 157 (2002).

122

U.S. Const. art VI, cl. 2: This Constitution and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

89

90

Article XI

legislation provides otherwise.123 In essence, in the event of a conflict over the allocation and management of water resources between the requirements of a compact and the requirements of state law, the requirements of the compact would prevail. As Justice Douglas noted in Oklahoma ex rel. Phillips v. Guy F. Atkinson Co.:124 “Whenever the constitutional powers of the federal government and those of the state come into conflict, the latter must yield.” Florida v. Mellon, 273 U.S. 12, 17 [1927]. . . . [T]he suggestion that this project interferes with the state’s own program for water development and conservation is likewise of no avail. That program must bow before the “superior power” of Congress.125 As with conflicts regarding the requirements of state law, the potential also exists for compacts to conflict with the requirements of other federal laws. In such situations, the established rule of statutory construction is that, “[b]ecause the latest expression of the legislative will prevails, the statute last passed will prevail over a statute passed prior to it.”126 There was discussion among the Advisory Committee as to whether Congress should consent to compacts that are inconsistent with the provisions of federal law or whether Congress should enact new federal laws that are inconsistent with the requirements of compacts. However, as noted in the Commentary to Article IV regarding the authority of the Commission, Congress has expressly reserved “the right to revoke, alter, or amend its consent” when it has consented to about twothirds of interstate water compacts.127 Even without such a reservation, “Congress is generally free to change its mind; in amending legislation Congress is not bound

123



[A] state statute is void to the extent that it actually conflicts with a valid federal statute; and “[a] conflict will be found ‘where compliance with both federal and state regulations is a physical impossibility. . . .’ Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–43 (1963), or where state ‘law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ Hines v. Davidowitz, 312 U.S. 52, 67 (1941); Jones v. Rath Packing Co., 430 U.S. 519, 526, 540–41 (1977). Accord De Canas v. Bica, 424 U.S. 351, 363 (1976).” Ray v. Atlantic Richfield Co., 435 U.S. 151, 158 (1978). Edgar v. Mite Corp., 457 U.S. 624, 631 (1982) (internal citations omitted).

124

313 U.S. 508 (1941).

125

Id. at 534–35 (internal citations omitted).

126

Norman J. Singer, 1A Sutherland Statutes and Statutory Construction § 23:18, at 525–26 (6th ed. 2002 rev.).

127

Muys, Interstate Water Compacts, supra note 40, at 292 n.59. See also supra note 15 and accompanying text.

Commentary

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by the intent of an earlier body.”128 However, the extent to which Congress is “free to change its mind” is not without uncertainty.129 The provisions of Article XI reflect the fact that numerous interstate water compacts may have been superseded or adversely impacted either in whole or in part by subsequently enacted federal legislation.130 An example is the South Platte Community-Service Broad. of Mid-America, Inc. v. FCC, 593 F.2d 1102, 1113 (D.C. Cir. 1978). The axiom that one Congress cannot bind a subsequent Congress is a well-established principle of American jurisprudence. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (in contrast to a constitution, legislative acts are “alterable when the legislature shall please to alter [them]”); Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135 (1810) (noting the cor rectness of the principle that “one legislature is competent to repeal any [law] which a former legislature was competent to pass; and that one legislature cannot abridge the powers of a succeeding legislature”); Street v. United States, 133 U.S. 299, 300 (1890) (statute “was not intended to have, . . . [and] could not have, . . . any effect on the power of a subsequent Congress” to enact a different policy). The rationale for this rule is stated by Justice Brennan in his dissent in United States Trust Co. of N.Y. v. New Jersey, 431 U.S. 1, 45 (1977): 128



One of the fundamental premises of our popular democracy is that each generation of representatives can and will remain responsive to the needs and desires of those whom they represent. Crucial to this end is the assurance that new legislators will not automatically be bound by the policies and undertakings of earlier days. 129

After noting that “the Constitution gives to Congress certain plenary powers” and that “Congress has at its disposal abundant authority to supervise and regulate the activities of operational compacts in such a way as to insure that no violence is done by these compacts to more compelling federal concerns,” the Court of Appeals for the District of Columbia in Tobin v. United States, 306 F.2d 270, 273 (1962), noted: Appellant argues . . . that Congress can adequately protect every interest that needs such protection because of the existence of an operational compact without, in doing so, being forced to the extremity of rescinding its consent under the compact clause, an action which appellant contends Congress has no constitutional power to perform. Appellant’s assertion in this respect is not unpersuasive, since a holding that Congress has the constitutional power to “alter, amend or repeal” its consent under the compact clause can hardly be stated as a proposition of universal applicability. A line marking the boundary between two states, initially drawn by such states acting pursuant to an interstate compact, could hardly be erased at some later date by Congress’s enactment of hindsight legislation purporting to repeal its consent to the compact by which such boundary was initially determined. See the discussion in Hinderlider v. LaPlata River and Cherry Creek Ditch Co., 304 U.S. 92 (1938) and cases cited therein.

130

Id. at 273–74 (internal citations omitted). For example, the Clean Water Act probably superseded many substantive provisions of Appendix B-21, the New England Interstate Water Pollution Control Compact, 61 Stat. 682 (1947), Appendix B-23, the Ohio River Valley Water Sanitation Compact, 54 Stat. 752 (1940), Appendix B-25, the Potomac River Basin Interstate Compact, 54 Stat. 748 (1940), as amended, 84 Stat. 856 (1970), Appendix B-34, the Tennessee River Basin Water Pollution Control Compact, 72 Stat. 823 (1958), and Appendix B-36, the TriState [Sanitation] Compact, 49 Stat. 932 (1935). See generally George William Sherk, Dividing the Waters: The Resolution of Interstate Water Conflicts in the United States, 49–58 (2000) (ch. 5, “The Ecology of Options”).

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River Compact, a water allocation compact between Colorado and Nebraska.131 The Riverside Irrigation District sought a nationwide temporary permit under section 404 of the Clean Water Act132 to discharge sand and gravel during the construction of a dam. The Corps of Engineers refused to issue the permit because operation of the proposed dam, by adversely impacting critical habitat of the whooping crane, was inconsistent with the requirements of the Endangered Species Act.133 The district court concurred, ruling that the Corps’ district engineer properly exercised his authority under the Clean Water Act and the Endangered Species Act.134 The court also ruled that approval of the South Platte River Compact by Congress did not limit congressional authority thereafter to enact the Clean Water Act even though that Act affected state water rights in a manner inconsistent with the Compact.135 In essence, the Riverside decisions stand for the proposition that interstate water compacts are subject to the provisions of subsequently enacted federal legislation, perhaps the two most important being the Clean Water Act and the Endangered Species Act, regardless of the impact of such legislation on compact apportionments or programs approved by an earlier Congress. Further, suppose Congress approves a compact providing for delivery by an upstream state of a certain quantity of water to a downstream state at specified times. Assume further that protection of the critical habitat of an endangered species within the upper state requires it to deliver more than its compact obligation to the downstream state(s) or its compact obligation at different times. This imposes an unanticipated burden on the upstream state and may provide an unanticipated and perhaps inequitable windfall for the downstream state(s). Conversely, if the endangered species is in the downstream state, that state may be required to dedicate a substantial portion of its compact share to protect the species, a situation that was not anticipated when the compact was negotiated. As noted previously, under traditional rules of statutory interpretation, the later Endangered Species Act arguably would supersede the previously approved allocations. Unless the compact or the consent legislation makes some provision for addressing this future inequity,

131

Appendix B-32, the South Platte River Compact, ch. 46, 44 Stat. 195 (1926). The terms of the Compact were at issue in Riverside Irrigation District v. Stipo, 658 F.2d 762 (10th Cir. 1981), on remand sub nom. Riverside Irrigation Dist. v. Andrews, 568 F. Supp. 583 (D. Colo. 1983), aff ’d 758 F.2d 508 (10th Cir. 1985).

132

33 U.S.C. § 1344 (2000) (permits for dredged or fill material).

133

16 U.S.C. §§ 1531–44 (2000).

134

Riverside Irrigation Dist. v. Andrews, 568 F. Supp. 583, 590 (D. Colo. 1983).

135

Id. at 587.

Commentary

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the states are faced with renegotiating the compact, a solution that might require a degree of magnanimity that political pressures in one or more of the compact states or Congress might preclude, unless the Golden Rule is somehow made a constitutional or statutory mandate. The foregoing hypothetical appears to have become a reality in the Rio Grande Basin in the interaction of the compact between Colorado, New Mexico, and Texas and the Endangered Species Act. A recent study concluded that the economic impacts of maintaining minimum annual flows in the middle Rio Grande Basin for the endangered Rio Grande Silvery Minnow produced a modest net benefit to New Mexico users downstream of the critical habitat area, but that the “major beneficiaries to maintaining an upstream habitat for the minnow include El Paso [Texas] industrial and municipal water users, who would gain more than $1 million per year during drought years.”136 These types of conflicts, which are illustrative of the types of conflicts that are virtually certain to emerge increasingly over time, are addressed in Article XI.

136

Frank A. Ward & James F. Booker, Economic Impacts of Instream Flow Protection for the Rio Grande Silvery Minnow in the Rio Grande Basin, 14 Revs. in Fisheries Sci. 187, 200–01 (2006). The article’s conclusions are of note: This article estimated the economic impacts associated with one measure for increasing instream flows to meet critical habitat requirements of the endangered Rio Grande Silvery Minnow. Using an integrated model of the hydrology, economics, and institutions of the Rio Grande Basin, a 44-year simulation of future inflows to the basin was conducted to estimate economic impacts of providing minimum acceptable flows for the minnow. Economic impacts to New Mexico agriculture were estimated at a positive $68,000 per year, distributed as a $149,000 loss to central New Mexico agriculture. One unexpected result of the study was that farmers in the Elephant Butte Irrigation District in southern New Mexico would gain because of increased flows for the minnow ending up in Elephant Butte Reservoir, downstream of the minnow’s habitat. Our results indicate that these gains by southern New Mexico agriculture could compensate losses incurred by central New Mexico agriculture, with a residual net gain of $68,000. Annual average benefits lost to New Mexico M&I water users was a modest $24,000, produced by the increased cost of pumping from groundwater sources after surface treatment facilities are built for Albuquerque’s M&I use of its San Juan Chama supplies. So the net annual average change in economic benefit to New Mexico associated with instream flow protection for the silvery minnow is a slightly positive $44,000. The policy of year-round minnow flows produced a gain in benefit of $203,000 per year for El Paso, Texas agriculture as well as a gain in benefit of $1,275,000 for El Paso M&I users. The major beneficiaries to maintaining the upstream habitat for the minnow include El Paso industrial and municipal water users, who would gain more than $1 million per year during drought years.



Id.

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Article XI

Reflecting the scope of preemption discussed above, Article XI.A provides that the Model Compact supersedes all state and tribal laws that are “irreconcilably inconsistent” with the provisions of the Compact. A slightly different approach is reflected in the relationship between the Model Compact and federal laws. Under Article XI.B(1), pre-existing federal laws and regulations that are “irreconcilably inconsistent” with the provisions of the Model Compact would be superseded by the Compact. However, as reflected in the Riverside Irrigation District decisions,137 the authors believe that federal laws enacted following the approval of the Model Compact that are “irreconcilably inconsistent” would probably supersede the provisions of the Compact. Consequently, Article XI.B(2) provides in relevant part that “[a]ny future federal laws, regulations or judicial or administrative decisions that directly or indirectly negate or significantly modify the Compact’s interstate water apportionments or the powers or programs of the Commission without the consent of the signatory states shall authorize the Commission, by a majority vote of the signatory state members, to terminate the Compact. . . .” While the signatory parties may not be able to change the will or inadvertent error of Congress, they retain their authority to terminate a compact that Congress may have altered substantially, which should prompt Congress to give more attention to the potential impact of water-related legislation on existing compacts and attempt to reasonably accommodate them. Article XI.B(3) authorizes the Commission to determine the extent to which federal laws applicable to the making of contracts, conflicts of interest, financial disclosure, open meetings, advisory committees, disclosure of information, judicial review, and related matters should be applicable to the Commission. Federal laws potentially applicable to this interstate administrative entity would include the Administrative Procedure Act,138 the National Environmental Policy Act,139 and the Federal Advisory Committee Act.140 With regard to judicial review of actions arising under the Model Compact, Article XI.B(3)(b) provides for exclusive jurisdiction in the courts of the United States. This provision reflects the Pacific Northwest Electric Power Planning and Conservation Act141 regarding the authority of the congressionally created Northwest Power Council on the Columbia River System and judicial review of Council actions.

137

See supra notes 131–135 and accompanying text.

138

5 U.S.C. §§ 500–551, 551–559, 701–706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

139

42 U.S.C. §§ 4321, 4331–4335, 4341–4347 (2000).

140

5 U.S.C. app. §§ 1–15 (2000).

141

16 U.S.C. § 839b(a)(4) (2000).

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Finally, Article XI.C makes it clear that the Model Compact is not intended to affect adversely “any interstate water allocation or other rights” that may have been awarded to a signatory party by the Supreme Court prior to ratification of the Compact. There are, however, two exceptions to this limitation. The Model Compact could adversely affect such rights if the adverse impacts were “expressly provided [for] in this compact” or “by unanimous vote of the Commission.”142

142



Similar language is contained in Appendix B-14, the Delaware River Basin Compact, art. 3.3(a), 75 Stat. 688, 692–93 (1961) (requiring “unanimous consent of its members [to] authorize and direct an increase or decrease in any allocation or diversion permitted or releases required by the decree” in New Jersey v. New York, 347 U.S. 995 (1954) (No. 5, Orig.)).

Appendix A Advisory Committee D. Craig Bell Executive Director Western States Water Council Creekview Plaza, Suite A-201 942 East 7145 South Midvale, UT 84047 Carolyn Brickey Project Administrator “Dividing The Waters” 7370 S. Cactus Thorn Lane Tucson, AZ 85747 Bonnie G. Colby University of Arizona Department of Agricultural and Resource Economics P.O. Box 210023 Tucson, AZ 85721-0023 Mr. Thomas Donnelly Executive Vice-President National Water Resources Association 3800 North Fairfax Drive Suite 4 Arlington, VA 22203 Wayne M. Dyok MWH Americas, Inc. 3321 Power Inn Road Suite 300 Sacramento, CA 95826

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John Echohawk Executive Director Native American Rights Fund 1506 Broadway Boulder, CO 80302 Andrew Fahlund Senior Program Director for Dam Reform American Rivers 1025 Vermont Avenue, N.W. Suite 720 Washington, D.C. 20005 Dr. Jeffrey P. Featherstone Director, Center for Sustainable Communities Chair and Associate Professor, Department of Community and Regional Planning Temple University Ambler 580 Meetinghouse Road Ambler, PA 19002-3996 Dr. David L. Feldman Department Chair University of Tennessee–Knoxville College of Arts and Sciences Department of Political Science 1001 McClung Tower Knoxville, TN 37996

Advisory Committee

Tom Gede, Executive Director Conference of Western Attorneys General 1300 I Street Sacramento, CA 95814

Dr. Charles W. Howe University of Colorado Institute of Behavioral Sciences Campus Box 483 Boulder, CO 80309-0483

Dr. William L. Graf USC Educational Foundation Endowed Professor University of South Carolina Department of Geography Callcott, Room 220 Columbia, SC 29208

Dr. Helen Ingram 4749 E. San Francisco Boulevard Tucson, AZ 85712

Major General Robert Griffin Deputy Commander U.S. Army Corps of Engineers 441 G Street, N.W. Washington, D.C. 20314-1000 Brent Fewell Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. MC 4101 M Washington, D.C. 20460 Joseph Hoffman, P.E. Executive Director Interstate Commission on the Potomac River Basin Suite 300 6110 Executive Boulevard Rockville, MD 20852-3903

Robert Johnson Regional Director Department of the Interior Bureau of Reclamation Lower Colorado Regional Office P.O. Box 61470 Boulder City, NV 80006-1470 Mary Kelly Environmental Defense 44 East Avenue Suite 304 Austin, TX 78701 Kenneth W. Knox Chief Deputy State Engineer State of Colorado Office of the State Engineer 821 Centennial Building 1313 Sherman Street Denver, CO 80203

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Lawrence J. MacDonnell Porzak, Browning and Bushong, LLC 929 Pearl Street Suite 300 Boulder, CO 80302 Dr. Thomas Maddock Professor of Hydrology and Water Resources University of Arizona Department of Hydrology and Water Resources John W. Harshbarger Building P.O. Box 210011 Tucson, AZ 85721-0011 G. Richard Marzolf Chief, Regional Research Branch Northeastern Regional Hydrology Office U.S. Geological Survey 12201 Sunrise Valley Drive Reston, VA 20192-0002 Stephen C. McCaffrey Distinguished Professor and Scholar McGeorge School of Law University of the Pacific 3200 Fifth Avenue Sacramento, CA 95817 Ann Miles Director, Division of Hydropower Environment and Engineering Office of Energy Projects Federal Energy Regulatory Commission 888 First Street, N.E. Washington, D.C. 20426

Larry Morandi Group Director; Environment, Energy & Transportation National Conference of State Legislatures 7700 East First Place Denver, CO 80230 Dr. Joan B. Rose Homer Nowlin Chair in Water Research Department of Fisheries and Wildlife 13 Natural Resources Building Michigan State University East Lansing, MI 48824 Salman Salman, Esq. Lead Counsel Legal Department / World Bank 1818 H Street, N.W. Washington, D.C. 20433 Gerald (Jerry) Sehlke Senior Scientist Idaho National Engineering and Environmental Laboratory P.O. Box 1625 1955 Fremont Avenue Idaho Falls, ID 83415-4110 John E. Thorson Attorney at Law 6625 Exeter Drive Oakland, CA 94611 John M. Volkman General Counsel Energy Trust of Oregon, Inc. 733 S.W. Oak Street / Suite 200 Portland, OR 97205-3712

Appendix B Interstate Compacts Appendix B-1: Alabama-Coosa-Tallapoosa River Basin Compact

Public Law No. 105–105 111 Statutes at Large 2233 (1997) The states of Alabama and Georgia and the United States of America hereby agree to the following compact which shall become effective upon enactment of concurrent legislation by each respective state legislature and the Congress of the United States. ARTICLE I COMPACT PURPOSES This Compact among the states of Alabama and Georgia and the United States of America has been entered into for the purposes of promoting interstate comity, removing causes of present and future controversies, equitably apportioning the surface waters of the ACT, engaging in water planning, and developing and sharing common data bases. ARTICLE II SCOPE OF THE COMPACT This Compact shall extend to all of the waters arising within the drainage basin of the ACT in the states of Alabama and Georgia. ARTICLE III PARTIES The parties to this Compact are the states of Alabama and Georgia and the United States of America. ARTICLE IV DEFINITIONS For the purposes of this Compact, the following words, phrases and terms shall have the following meanings: (a) “ACT Basin” or “ACT” means the area of natural drainage into the Alabama River and its tributaries, the Coosa River and its tributaries, and the Tallapoosa River and its tributaries. Any reference to the rivers within this Compact will

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Appendix B be designated using the letters “ACT” and when so referenced will mean each of these three rivers and each of the tributaries to each such river.

(b) “Allocation formula” means the methodology, in whatever form, by which the ACT Basin Commission determines an equitable apportionment of surface waters within the ACT Basin among the two states. Such formula may be represented by a table, chart, mathematical calculation or any other expression of the Commission’s apportionment of waters pursuant to this compact. (c) “Commission” or “ACT Basin Commission” means the Alabama-CoosaTallapoosa River Basin Commission created and established pursuant to this Compact. (d) “Ground waters” means waters within a saturated zone or stratum beneath the surface of land, whether or not flowing through known and definite channels. (e) “Person” means any individual, firm, association, organization, partnership, business, trust, corporation, public corporation, company, the United States of America, any state, and all political subdivisions, regions, districts, municipalities, and public agencies thereof. (f) “Surface waters” means waters upon the surface of the earth, whether contained in bounds created naturally or artificially or diffused. Water from natural springs shall be considered “surface waters” when it exits from the spring onto the surface of the earth. (g) “United States” means the executive branch of the government of the United States of America, and any department, agency, bureau or division thereof. (h) “Water Resource Facility” means any facility or project constructed for the impoundment, diversion, retention, control or regulation of waters within the ACT Basin for any purpose. (i) “Water resources,” or “waters” means all surface waters and ground waters contained or otherwise originating within the ACT Basin. ARTICLE V CONDITIONS PRECEDENT TO LEGAL VIABILITY OF THE COMPACT This Compact shall not be binding on any party until it has been enacted into law by the legislatures of the states of Alabama and Georgia and by the Congress of the United States of America.

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ARTICLE VI ACT BASIN COMMISSION CREATED (a) There is hereby created an interstate administrative agency to be known as the “ACT Basin Commission.” The Commission shall be comprised of one member representing the state of Alabama, one member representing the state of Georgia, and one non-voting member representing the United States of America. The state members shall be known as “State Commissioners” and the federal member shall be known as “Federal Commissioner.” The ACT Basin Commission is a body politic and corporate, with succession for the duration of this Compact. (b) The Governor of each of the states shall serve as the State Commissioner for his or her state. Each State Commissioner shall appoint one or more alternate members and one of such alternates as designated by the State Commissioner shall serve in the State Commissioner’s place and carry out the functions of the State Commissioner, including voting on Commission matters, in the event the State Commissioner is unable to attend a meeting of the Commission. The alternate members from each state shall be knowledgeable in the field of water resources management. Unless otherwise provided by law of the state for which an alternate State Commissioner is appointed, each alternate State Commissioner shall serve at the pleasure of the State Commissioner. In the event of a vacancy in the office of an alternate, it shall be filled in the same manner as an original appointment. (c) The President of the United States of America shall appoint the Federal Commissioner who shall serve as the representative of all federal agencies with an interest in the ACT. The President shall also appoint an alternate Federal Commissioner to attend and participate in the meetings of the Commission in the event the Federal Commissioner is unable to attend meetings. When at meetings, the alternate Federal Commissioner shall possess all of the powers of the Federal Commissioner. The Federal Commissioner and alternate appointed by the President shall serve until they resign or their replacements are appointed. (d) Each state shall have one vote on the ACT Basin Commission and the Commission shall make all decisions and exercise all powers by unanimous vote of the two State Commissioners. The Federal Commissioner shall not have a vote but shall attend and participate in all meetings of the ACT Basin Commission to the same extent as the State Commissioners. (e) The ACT Basin Commission shall meet at least once a year at a date set at its initial meeting. Such initial meeting shall take place within ninety days of

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Appendix B the ratification of the Compact by the Congress of the United States and shall be called by the chairman of the Commission. Special meetings of the Commission may be called at the discretion of the chairman of the Commission and shall be called by the chairman of the Commission upon written request of any member of the Commission. All members shall be notified of the time and place designated for any regular or special meeting at least five days prior to such meeting in one of the following ways: by written notice mailed to the last mailing address given to the Commission by each member, by facsimile, telegram or by telephone. The Chairmanship of the Commission shall rotate annually among the voting members of the Commission on an alphabetical basis, with the first chairman to be the State Commissioner representing the State of Alabama.

(f) All meetings of the Commission shall be open to the public. (g) The ACT Basin Commission, so long as the exercise of power is consistent with this Compact, shall have the following general powers: (1) to adopt bylaws and procedures governing its conduct; (2) to sue and be sued in any court of competent jurisdiction; (3) to retain and discharge professional, technical, clerical and other staff and such consultants as are necessary to accomplish the purposes of this Compact; (4) to receive funds from any lawful source and expend funds for any lawful purpose; (5) to enter into agreements or contracts, where appropriate, in order to accomplish the purposes of this Compact; (6) to create committees and delegate responsibilities; (7) to plan, coordinate, monitor, and make recommendations for the water resources of the ACT Basin for the purposes of, but not limited to, minimizing adverse impacts of floods and droughts and improving water quality, water supply, and conservation as may be deemed necessary by the Commission; (8) to participate with other governmental and non-governmental entities in carrying out the purposes of this Compact; (9) to conduct studies, to generate information regarding the water resources of the ACT Basin, and to share this information among the Commission members and with others;

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(10) to cooperate with appropriate state, federal, and local agencies or any other person in the development, ownership, sponsorship, and operation of water resource facilities in the ACT Basin; provided, however, that the Commission shall not own or operate a federally-owned water resource facility unless authorized by the United States Congress; (11) to acquire, receive, hold and convey such personal and real property as may be necessary for the performance of its duties under the Compact; provided, however, that nothing in this Compact shall be construed as granting the ACT Basin Commission authority to issue bonds or to exercise any right of eminent domain or power of condemnation; (12) to establish and modify an allocation formula for apportioning the surface waters of the ACT Basin among the states of Alabama and Georgia; and (13) to perform all functions required of it by this Compact and to do all things necessary, proper or convenient in the performance of its duties hereunder, either independently or in cooperation with any state or the United States. ARTICLE VII EQUITABLE APPORTIONMENT (a) It is the intent of the parties to this Compact to develop an allocation formula for equitably apportioning the surface waters of the ACT Basin among the states while protecting the water quality, ecology and biodiversity of the ACT, as provided in the Clean Water Act, 33 U.S.C. Sections 1251 et seq., the Endangered Species Act, 16 U.S.C. Sections 1532 et seq., the National Environmental Policy Act, 42 U.S.C. Sections 4321 et seq., the Rivers and Harbors Act of 1899, 33 U.S.C. Sections 401 et seq., and other applicable federal laws. For this purpose, all members of the ACT Basin Commission, including the Federal Commissioner, shall have full rights to notice of and participation in all meetings of the ACT Basin Commission and technical committees in which the basis and terms and conditions of the allocation formula are to be discussed or negotiated. When an allocation formula is unanimously approved by the State Commissioners, there shall be an agreement among the states regarding an allocation formula. The allocation formula thus agreed upon shall become effective and binding upon the parties to this Compact upon receipt by the Commission of a letter of concurrence with said formula from the Federal Commissioner. If, however, the Federal Commissioner fails to submit a letter of concurrence to the Commission within two hundred ten (210) days after the allocation formula is agreed upon by the State

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Appendix B Commissioners, the Federal Commissioner shall within forty-five (45) days thereafter submit to the ACT Basin Commission a letter of nonconcurrence with the allocation formula setting forth therein specifically and in detail the reasons for nonconcurrence; provided, however, the reasons for nonconcurrence as contained in the letter of nonconcurrence shall be based solely upon federal law. The allocation formula shall also become effective and binding upon the parties to this Compact if the Federal Commissioner fails to submit to the ACT Basin Commission a letter of nonconcurrence in accordance with this Article. Once adopted pursuant to this Article, the allocation formula may only be modified by unanimous decision of the State Commissioners and the concurrence by the Federal Commissioner in accordance with the procedures set forth in this Article.

(b) The parties to this Compact recognize that the United States operates certain projects within the ACT Basin that may influence the water resources within the ACT Basin. The parties to this Compact further acknowledge and recognize that various agencies of the United States have responsibilities for administering certain federal laws and exercising certain federal powers that may influence the water resources within the ACT Basin. It is the intent of the parties to this Compact, including the United States, to achieve compliance with the allocation formula adopted in accordance with this Article. Accordingly, once an allocation formula is adopted, each and every officer, agency, and instrumentality of the United States shall have an obligation and duty, to the maximum extent practicable, to exercise their powers, authority, and discretion in a manner consistent with the allocation formula so long as the exercise of such powers, authority, and discretion is not in conflict with federal law. (c) Between the effective date of this Compact and the approval of the allocation formula under this Article, the signatories to this Compact agree that any person who is withdrawing, diverting, or consuming water resources of the ACT Basin as of the effective date of this Compact, may continue to withdraw, divert or consume such water resources in accordance with the laws of the state where such person resides or does business and in accordance with applicable federal laws. The parties to this Compact further agree that any such person may increase the amount of water resources withdrawn, diverted or consumed to satisfy reasonable increases in the demand of such person for water between the effective date of this Compact and the date on which an allocation formula is approved by the ACT Basin Commission as permitted by applicable law. Each of the state parties to this Compact further agree to provide written notice to each of the other parties to this Compact in the event any person increases the withdrawal, diversion or consumption of such

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water resources by more than 10 million gallons per day on an average annual daily basis, or in the event any person, who was not withdrawing, diverting or consuming any water resources from the ACT Basin as of the effective date of this Compact, seeks to withdraw, divert or consume more than one million gallons per day on an average annual daily basis from such resources. This Article shall not be construed as granting any permanent, vested or perpetual rights to the amounts of water used between January 3, 1992 and the date on which the Commission adopts an allocation formula. (d) As the owner, operator, licensor, permitting authority or regulator of a water resource facility under its jurisdiction, each state shall be responsible for using its best efforts to achieve compliance with the allocation formula adopted pursuant to this Article. Each such state agrees to take such actions as may be necessary to achieve compliance with the allocation formula. (e) This Compact shall not commit any state to agree to any data generated by any study or commit any state to any allocation formula not acceptable to such state. ARTICLE VIII CONDITIONS RESULTING IN TERMINATION OF THE COMPACT (a) This Compact shall be terminated and thereby be void and of no further force and effect if any of the following events occur: (1) The legislatures of the states of Alabama and Georgia each agree by general laws enacted by each state within any three consecutive years that this Compact should be terminated. (2) The United States Congress enacts a law expressly repealing this Compact. (3) The States of Alabama and Georgia fail to agree on an equitable apportionment of the surface waters of the ACT as provided in Article VII(a) of this Compact by December 31, 1998, unless the voting members of the ACT Basin Commission unanimously agree to extend this deadline. (4) The Federal Commissioner submits to the Commission a letter of nonconcurrence in the initial allocation formula in accordance with Article VII(a) of the Compact, unless the voting members of the ACT Basin Commission unanimously agree to allow a single 45 day period in which the non-voting Federal Commissioner and the voting State Commissioners may renegotiate an allocation formula and the Federal Commissioner withdraws the letter of nonconcurrence upon completion of this renegotiation.

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(b) If the Compact is terminated in accordance with this Article it shall be of no further force and effect and shall not be the subject of any proceeding for the enforcement thereof in any federal or state court. Further, if so terminated, no party shall be deemed to have acquired a specific right to any quantity of water because it has become a signatory to this Compact. ARTICLE IX COMPLETION OF STUDIES PENDING ADOPTION OF ALLOCATION FORMULA The ACT Basin Commission, in conjunction with one or more interstate, federal, state or local agencies, is hereby authorized to participate in any study in process as of the effective date of this Compact, including, without limitation, all or any part of the Alabama-Coosa-Tallapoosa/Apalachicola-Chattahoochee-Flint River Basin Comprehensive Water Resource Study, as may be determined by the Commission in its sole discretion. ARTICLE X RELATIONSHIP TO OTHER LAWS (a) It is the intent of the party states and of the United States Congress by ratifying this Compact, that all state and federal officials enforcing, implementing or administering other state and federal laws affecting the ACT Basin shall, to the maximum extent practicable, enforce, implement or administer those laws in furtherance of the purposes of this Compact and the allocation formula adopted by the Commission insofar as such actions are not in conflict with applicable federal laws. (b) Nothing contained in this Compact shall be deemed to restrict the executive powers of the President in the event of a national emergency. (c) Nothing contained in this Compact shall impair or affect the constitutional authority of the United States or any of its powers, rights, functions or jurisdiction under other existing or future laws in and over the area or waters which are the subject of the Compact, including projects of the Commission, nor shall any act of the Commission have the effect of repealing, modifying or amending any federal law. All officers, agencies and instrumentalities of the United States shall exercise their powers and authority over water resources in the ACT Basin and water resource facilities, and to the maximum extent practicable, shall exercise their discretion in carrying out their responsibilities, powers, and authorities over water resources in the ACT Basin and water resource facilities in the ACT Basin in a manner consistent with and that effectuates the allocation formula developed pursuant to this Compact or any modification of the allocation formula so long as the actions are not in conflict

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with any applicable federal law. The United States Army Corps of Engineers, or its successors, and all other federal agencies and instrumentalities shall cooperate with the ACT Basin Commission in accomplishing the purposes of the Compact and fulfilling the obligations of each of the parties to the Compact regarding the allocation formula. (d) Once adopted by the two states and ratified by the United States Congress, this Compact shall have the full force and effect of federal law, and shall supersede state and local laws operating contrary to the provisions herein or the purposes of this Compact; provided, however, nothing contained in this Compact shall be construed as affecting or intending to affect or in any way to interfere with the laws of the respective signatory states relating to water quality, and riparian rights as among persons exclusively within each state. ARTICLE XI PUBLIC PARTICIPATION All meetings of the Commission shall be open to the public. The signatory parties recognize the importance and necessity of public participation in activities of the Commission, including the development and adoption of the initial allocation formula and any modification thereto. Prior to the adoption of the initial allocation formula, the Commission shall adopt procedures ensuring public participation in the development, review, and approval of the initial allocation formula and any subsequent modification thereto. At a minimum, public notice to interested parties and a comment period shall be provided. The Commission shall respond in writing to relevant comments. ARTICLE XII FUNDING AND EXPENSES OF THE COMMISSION Commissioners shall serve without compensation from the ACT Basin Commission. All general operational funding required by the Commission and agreed to by the voting members shall obligate each state to pay an equal share of such agreed upon funding. Funds remitted to the Commission by a state in payment of such obligation shall not lapse; provided, however, that if any state fails to remit payment within 90 days after payment is due, such obligation shall terminate and any state which has made payment may have such payment returned. Costs of attendance and participation at meetings of the Commission by the Federal Commissioner shall be paid by the United States. ARTICLE XIII DISPUTE RESOLUTION (a) In the event of a dispute between the voting members of this Compact

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Appendix B involving a claim relating to compliance with the allocation formula adopted by the Commission under this Compact, the following procedures shall govern:

(1) Notice of claim shall be filed with the Commission by a voting member of this Compact and served upon each member of the Commission. The notice shall provide a written statement of the claim, including a brief narrative of the relevant matters supporting the claimant’s position. (2) Within twenty (20) days of the Commission’s receipt of a written statement of a claim, the party or parties to the Compact against whom the complaint is made may prepare a brief narrative of the relevant matters and file it with the Commission and serve it upon each member of the Commission. (3) Upon receipt of a claim and any response or responses thereto, the Commission shall convene as soon as reasonably practicable, but in no event later than twenty (20) days from receipt of any response to the claim, and shall determine if a resolution of the dispute is possible. (4) A resolution of a dispute under this Article through unanimous vote of the State Commissioners shall be binding upon the state parties and any state party determined to be in violation of the allocation formula shall correct such violation without delay. (5) If the Commission is unable to resolve the dispute within 10 days from the date of the meeting convened pursuant to subparagraph (a)(3) of this Article, the Commission shall select, by unanimous decision of the voting members of the Commission, an independent mediator to conduct a non-binding mediation of the dispute. The mediator shall not be a resident or domiciliary of any member state, shall not be an employee or agent of any member of the Commission, shall be a person knowledgeable in water resource management issues, and shall disclose any and all current or prior contractual or other relations to any member of the Commission. The expenses of the mediator shall be paid by the Commission. If the mediator becomes unwilling or unable to serve, the Commission by unanimous decision of the voting members of the Commission, shall appoint another independent mediator. (6) If the Commission fails to appoint an independent mediator to conduct a non-binding mediation of the dispute within seventy-five (75) days of the filing of the original claim or within thirty (30) days of the date on which the Commission learns that a mediator is unwilling or unable to

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serve, the party submitting the claim shall have no further obligation to bring the claim before the Commission and may proceed by pursuing any appropriate remedies, including any and all judicial remedies. (7) If an independent mediator is selected, the mediator shall establish the time and location for the mediation session or sessions and may request that each party to the Compact submit, in writing, to the mediator a statement of its position regarding the issue or issues in dispute. Such statements shall not be exchanged by the parties except upon the unanimous agreement of the parties to the mediation. (8) The mediator shall not divulge confidential information disclosed to the mediator by the parties or by witnesses, if any, in the course of the mediation. All records, reports, or other documents received by a mediator while serving as a mediator shall be considered confidential. The mediator shall not be compelled in any adversary proceeding or judicial forum to divulge the contents of such documents or the fact that such documents exist or to testify in regard to the mediation. (9) Each party to the mediation shall maintain the confidentiality of the information received during the mediation and shall not rely on or introduce in any judicial proceeding as evidence: a. Views expressed or suggestions made by another party regarding a settlement of the dispute; b. Proposals made or views expressed by the mediator; or c. The fact that another party to the hearing had or had not indicated a willingness to accept a proposal for settlement of the dispute. (10) The mediator may terminate the non-binding mediation session or sessions whenever, in the judgment of the mediator, further efforts to resolve the dispute would not lead to a resolution of the dispute between or among the parties. Any party to the dispute may terminate the mediation process at any time by giving written notification to the mediator and the Commission. If terminated prior to reaching a resolution, the party submitting the original claim to the Commission shall have no further obligation to bring its claim before the Commission and may proceed by pursuing any appropriate remedies, including any and all judicial remedies. (11) The mediator shall have no authority to require the parties to enter into a settlement of any dispute regarding the Compact. The mediator may simply attempt to assist the parties in reaching a mutually acceptable resolution of their dispute. The mediator is authorized to conduct joint

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Appendix B and separate meetings with the parties to the mediation and to make oral or written recommendations for a settlement of the dispute.

(12) At any time during the mediation process, the Commission is encouraged to take whatever steps it deems necessary to assist the mediator or the parties to resolve the dispute. (13) In the event of a proceeding seeking enforcement of the allocation formula, this Compact creates a cause of action solely for equitable relief. No action for money damages may be maintained. The party or parties alleging a violation of the Compact shall have the burden of proof. (b) In the event of a dispute between any voting member and the United States relating to a state’s noncompliance with the allocation formula as a result of actions or a refusal to act by officers, agencies or instrumentalities of the United States, the provisions set forth in paragraph (a) of this Article (other than the provisions of subparagraph (a)(4)) shall apply. (c) The United States may initiate dispute resolution under paragraph (a) in the same manner as other parties to this Compact. (d) Any signatory party who is affected by any action of the Commission, other than the adoption or enforcement of or compliance with the allocation formula, may file a complaint before the ACT Basin Commission seeking to enforce any provision of this Compact. (1) The Commission shall refer the dispute to an independent hearing officer or mediator, to conduct a hearing or mediation of the dispute. If the parties are unable to settle their dispute through mediation, a hearing shall be held by the Commission or its designated hearing officer. Following a hearing conducted by a hearing officer, the hearing officer shall submit a report to the Commission setting forth findings of fact and conclusions of law, and making recommendations to the Commission for the resolution of the dispute. (2) The Commission may adopt or modify the recommendations of the hearing officer within 60 days of submittal of the report. If the Commission is unable to reach unanimous agreement on the resolution of the dispute within 60 days of submittal of the report with the concurrence of the Federal Commissioner in disputes involving or affecting federal interests, the affected party may file an action in any court of competent jurisdiction to enforce the provisions of this Compact. The hearing officer’s report shall be of no force and effect and shall not be admissible as evidence in any further proceedings.

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(e) All actions under this Article shall be subject to the following provisions: (1) The Commission shall adopt guidelines and procedures for the appointment of hearing officers or independent mediators to conduct all hearings and mediations required under this Article. The hearing officer or mediator appointed under this Article shall be compensated by the Commission. (2) All hearings or mediations conducted under this article may be conducted utilizing the Federal Administrative Procedures Act, the Federal Rules of Civil Procedure, and the Federal Rules of Evidence. The Commission may also choose to adopt some or all of its own procedural and evidentiary rules for the conduct of hearings or mediations under this Compact. (3) Any action brought under this Article shall be limited to equitable relief only. This Compact shall not give rise to a cause of action for money damages. (4) Any signatory party bringing an action before the Commission under this Article shall have the burdens of proof and persuasion. ARTICLE XIV ENFORCEMENT The Commission may, upon unanimous decision, bring an action against any person to enforce any provision of this Compact, other than the adoption or enforcement of or compliance with the allocation formula, in any court of competent jurisdiction. ARTICLE XV IMPACTS ON OTHER STREAM SYSTEMS This Compact shall not be construed as establishing any general principle or precedent applicable to any other interstate streams. ARTICLE XVI IMPACT OF COMPACT ON USE OF WATER WITHIN THE BOUNDARIES OF THE COMPACTING STATES The provisions of this Compact shall not interfere with the right or power of any state to regulate the use and control of water within the boundaries of the state, providing such state action is not inconsistent with the allocation formula.

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ARTICLE XVII AGREEMENT REGARDING WATER QUALITY (a) The States of Alabama and Georgia mutually agree to the principle of individual State efforts to control man-made water pollution from sources located and operating within each State and to the continuing support of each State in active water pollution control programs. (b) The States of Alabama and Georgia agree to cooperate, through their appropriate State agencies, in the investigation, abatement, and control of sources of alleged interstate pollution within the ACT River Basin whenever such sources are called to their attention by the Commission. (c) The States of Alabama and Georgia agree to cooperate in maintaining the quality of the waters of the ACT River Basin. (d) The States of Alabama and Georgia agree that no State may require another state to provide water for the purpose of water quality control as a substitute for or in lieu of adequate waste treatment. ARTICLE XVIII EFFECT OF OVER OR UNDER DELIVERIES UNDER THE COMPACT No state shall acquire any right or expectation to the use of water because of any other state’s failure to use the full amount of water allocated to it under this Compact. ARTICLE XIX SEVERABILITY If any portion of this Compact is held invalid for any reason, the remaining portions, to the fullest extent possible, shall be severed from the void portion and given the fullest possible force, effect, and application. ARTICLE XX NOTICE AND FORMS OF SIGNATURE Notice of ratification of this Compact by the legislature of each state shall promptly be given by the Governor of the ratifying state to the Governor of the other participating state. When the two state legislatures have ratified the Compact, notice of their mutual ratification shall be forwarded to the Congressional delegation of the signatory states for submission to the Congress of the United States for ratification. When the Compact is ratified by the Congress of the United States, the President, upon signing the federal ratification legislation, shall promptly notify the Governors of the participating states and appoint the Federal Commissioner. The Compact shall be signed by all three Commissioners as their first order of business at their first meeting and shall be filed of record in the party states.

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Appendix B-2: Animas-La Plata Project Compact

Public Law No. 90–537, § 501(c) 82 Statutes at Large 898 (1968) The State of Colorado and the State of New Mexico, in order to implement the operation of the Animas‑La Plata Federal Reclamation Project, Colorado‑New Mexico, a proposed participating project under the Colorado River Storage Project Act and being moved by considerations of interstate comity, have resolved to conclude a compact for these purposes and have agreed upon the following articles: ARTICLE I A. The right to store and divert water in Colorado and New Mexico from the La Plata and Animas River systems, including return flow to the La Plata River from Animas River diversions, for uses in New Mexico under the Animas‑La Plata Federal Reclamation Project shall be valid and of equal priority with those rights granted by decree of the Colorado state courts for the uses of water in Colorado for that project providing such uses in New Mexico are within the allocation of water made to that state by articles III and XIV of the Upper Colorado River Basin Compact. B. The restrictions of the last sentence of Section (a) of Article IX of the Upper Colorado River Basin Compact shall not be construed to vitiate paragraph A of this article. ARTICLE II This Compact shall become binding and obligatory when it shall have been ratified by the legislatures of each of the signatory States.

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Appendix B-3: Apalachicola-Chattahoochee-Flint River Basin Compact

Public Law No. 105–104 111 Statutes at Large 2219 (1997) The states of Alabama, Florida and Georgia and the United States of America hereby agree to the following compact which shall become effective upon enactment of concurrent legislation by each respective state legislature and the Congress of the United States. ARTICLE I COMPACT PURPOSES This Compact among the states of Alabama, Florida and Georgia and the United States of America has been entered into for the purposes of promoting interstate comity, removing causes of present and future controversies, equitably apportioning the surface waters of the ACF, engaging in water planning, and developing and sharing common data bases. ARTICLE II SCOPE OF THE COMPACT This Compact shall extend to all of the waters arising within the drainage basin of the ACF in the states of Alabama, Florida and Georgia. ARTICLE III PARTIES The parties to this Compact are the states of Alabama, Florida and Georgia and the United States of America. ARTICLE IV DEFINITIONS For the purposes of this Compact, the following words, phrases and terms shall have the following meanings: (a) “ACF Basin” or “ACF” means the area of natural drainage into the Apalachicola River and its tributaries, the Chattahoochee River and its tributaries, and the Flint River and its tributaries. Any reference to the rivers within this Compact will be designated using the letters “ACF” and when so referenced will mean each of these three rivers and each of the tributaries to each such river. (b) “Allocation formula” means the methodology, in whatever form, by which the ACF Basin Commission determines an equitable apportionment of surface waters within the ACF Basin among the three states. Such formula may be represented by a table, chart, mathematical calculation or any other expression of the Commission’s apportionment of waters pursuant to this compact.

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(c) “Commission” or “ACF Basin Commission” means the Apalachicola-Chattahoochee-Flint River Basin Commission created and established pursuant to this Compact. (d) “Ground waters” means waters within a saturated zone or stratum beneath the surface of land, whether or not flowing through known and definite channels. (e) “Person” means any individual, firm, association, organization, partnership, business, trust, corporation, public corporation, company, the United States of America, any state, and all political subdivisions, regions, districts, municipalities, and public agencies thereof. (f) “Surface waters” means waters upon the surface of the earth, whether contained in bounds created naturally or artificially or diffused. Water from natural springs shall be considered “surface waters” when it exits from the spring onto the surface of the earth. (g) “United States” means the executive branch of the government of the United States of America, and any department, agency, bureau or division thereof. (h) “Water Resource Facility” means any facility or project constructed for the impoundment, diversion, retention, control or regulation of waters within the ACF Basin for any purpose. (i) “Water resources,” or “waters” means all surface waters and ground waters contained or otherwise originating within the ACF Basin. ARTICLE V CONDITIONS PRECEDENT TO LEGAL VIABILITY OF THE COMPACT This Compact shall not be binding on any party until it has been enacted into law by the legislatures of the states of Alabama, Florida and Georgia and by the Congress of the United States of America. ARTICLE VI ACF BASIN COMMISSION CREATED (a) There is hereby created an interstate administrative agency to be known as the “ACF Basin Commission.” The Commission shall be comprised of one member representing the state of Alabama, one member representing the state of Florida, one member representing the state of Georgia, and one non-voting member representing the United States of America. The state members shall be known as “State Commissioners” and the federal member shall be known as “Federal Commissioner.” The ACF Basin Commission is a body politic and corporate, with succession for the duration of this Compact.

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(b) The Governor of each of the states shall serve as the State Commissioner for his or her state. Each State Commissioner shall appoint one or more alternate members and one of such alternates as designated by the State Commissioner shall serve in the State Commissioner’s place and carry out the functions of the State Commissioner, including voting on Commission matters, in the event the State Commissioner is unable to attend a meeting of the Commission. The alternate members from each state shall be knowledgeable in the field of water resources management. Unless otherwise provided by law of the state for which an alternate State Commissioner is appointed, each alternate State Commissioner shall serve at the pleasure of the State Commissioner. In the event of a vacancy in the office of an alternate, it shall be filled in the same manner as an original appointment. (c) The President of the United States of America shall appoint the Federal Commissioner who shall serve as the representative of all federal agencies with an interest in the ACF. The President shall also appoint an alternate Federal Commissioner to attend and participate in the meetings of the Commission in the event the Federal Commissioner is unable to attend meetings. When at meetings, the alternate Federal Commissioner shall possess all of the powers of the Federal Commissioner. The Federal Commissioner and alternate appointed by the President shall serve until they resign or their replacements are appointed. (d) Each state shall have one vote on the ACF Basin Commission and the Commission shall make all decisions and exercise all powers by unanimous vote of the three State Commissioners. The Federal Commissioner shall not have a vote, but shall attend and participate in all meetings of the ACF Basin Commission to the same extent as the State Commissioners. (e) The ACF Basin Commission shall meet at least once a year at a date set at its initial meeting. Such initial meeting shall take place within ninety days of the ratification of the Compact by the Congress of the United States and shall be called by the chairman of the Commission. Special meetings of the Commission may be called at the discretion of the chairman of the Commission and shall be called by the chairman of the Commission upon written request of any member of the Commission. All members shall be notified of the time and place designated for any regular or special meeting at least five days prior to such meeting in one of the following ways: by written notice mailed to the last mailing address given to the Commission by each member, by facsimile, telegram or by telephone. The Chairmanship of the Commission shall rotate annually among the voting members of the Commission on an alphabetical basis, with the first chairman to be the State Commissioner representing the State of Alabama.

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(f) All meetings of the Commission shall be open to the public. (g) The ACF Basin Commission, so long as the exercise of power is consistent with this Compact, shall have the following general powers: (1) to adopt bylaws and procedures governing its conduct; (2) to sue and be sued in any court of competent jurisdiction; (3) to retain and discharge professional, technical, clerical and other staff and such consultants as are necessary to accomplish the purposes of this Compact; (4) to receive funds from any lawful source and expend funds for any lawful purpose; (5) to enter into agreements or contracts, where appropriate, in order to accomplish the purposes of this Compact; (6) to create committees and delegate responsibilities; (7) to plan, coordinate, monitor, and make recommendations for the water resources of the ACF Basin for the purposes of, but not limited to, minimizing adverse impacts of floods and droughts and improving water quality, water supply, and conservation as may be deemed necessary by the Commission; (8) to participate with other governmental and non-governmental entities in carrying out the purposes of this Compact; (9) to conduct studies, to generate information regarding the water resources of the ACF Basin, and to share this information among the Commission members and with others; (10) to cooperate with appropriate state, federal, and local agencies or any other person in the development, ownership, sponsorship, and operation of water resource facilities in the ACF Basin; provided, however, that the Commission shall not own or operate a federally-owned water resource facility unless authorized by the United States Congress; (11) to acquire, receive, hold and convey such personal and real property as may be necessary for the performance of its duties under the Compact; provided, however, that nothing in this Compact shall be construed as granting the ACF Basin Commission authority to issue bonds or to exercise any right of eminent domain or power of condemnation;

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(12) to establish and modify an allocation formula for apportioning the surface waters of the ACF Basin among the states of Alabama, Florida and Georgia; and (13) to perform all functions required of it by this Compact and to do all things necessary, proper or convenient in the performance of its duties hereunder, either independently or in cooperation with any state or the United States. ARTICLE VII EQUITABLE APPORTIONMENT (a) It is the intent of the parties to this Compact to develop an allocation formula for equitably apportioning the surface waters of the ACF Basin among the states while protecting the water quality, ecology and biodiversity of the ACF, as provided in the Clean Water Act, 33 U.S.C. Sections 1251 et seq., the Endangered Species Act, 16 U.S.C. Sections 1532 et seq., the National Environmental Policy Act, 42 U.S.C. Sections 4321 et seq., the Rivers and Harbors Act of 1899, 33 U.S.C. Sections 401 et seq., and other applicable federal laws. For this purpose, all members of the ACF Basin Commission, including the Federal Commissioner, shall have full rights to notice of and participation in all meetings of the ACF Basin Commission and technical committees in which the basis and terms and conditions of the allocation formula are to be discussed or negotiated. When an allocation formula is unanimously approved by the State Commissioners, there shall be an agreement among the states regarding an allocation formula. The allocation formula thus agreed upon shall become effective and binding upon the parties to this Compact upon receipt by the Commission of a letter of concurrence with said formula from the Federal Commissioner. If, however, the Federal Commissioner fails to submit a letter of concurrence to the Commission within two hundred ten (210) days after the allocation formula is agreed upon by the State Commissioners, the Federal Commissioner shall within forty-five (45) days thereafter submit to the ACF Basin Commission a letter of nonconcurrence with the allocation formula setting forth therein specifically and in detail the reasons for nonconcurrence; provided, however, the reasons for nonconcurrence as contained in the letter of nonconcurrence shall be based solely upon federal law. The allocation formula shall also become effective and binding upon the parties to this Compact if the Federal Commissioner fails to submit to the ACF Basin Commission a letter of nonconcurrence in accordance with this Article. Once adopted pursuant to this Article, the allocation formula may only be modified by unanimous decision of the State Commissioners and the concurrence by the Federal Commissioner in accordance with the procedures set forth in this Article.

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(b) The parties to this Compact recognize that the United States operates certain projects within the ACF Basin that may influence the water resources within the ACF Basin. The parties to this Compact further acknowledge and recognize that various agencies of the United States have responsibilities for administering certain federal laws and exercising certain federal powers that may influence the water resources within the ACF Basin. It is the intent of the parties to this Compact, including the United States, to achieve compliance with the allocation formula adopted in accordance with this Article. Accordingly, once an allocation formula is adopted, each and every officer, agency, and instrumentality of the United States shall have an obligation and duty, to the maximum extent practicable, to exercise their powers, authority, and discretion in a manner consistent with the allocation formula so long as the exercise of such powers, authority, and discretion is not in conflict with federal law. (c) Between the effective date of this Compact and the approval of the allocation formula under this Article, the signatories to this Compact agree that any person who is withdrawing, diverting, or consuming water resources of the ACF Basin as of the effective date of this Compact, may continue to withdraw, divert or consume such water resources in accordance with the laws of the state where such person resides or does business and in accordance with applicable federal laws. The parties to this Compact further agree that any such person may increase the amount of water resources withdrawn, diverted or consumed to satisfy reasonable increases in the demand of such person for water between the effective date of this Compact and the date on which an allocation formula is approved by the ACF Basin Commission as permitted by applicable law. Each of the state parties to this Compact further agree to provide written notice to each of the other parties to this Compact in the event any person increases the withdrawal, diversion or consumption of such water resources by more than 10 million gallons per day on an average annual daily basis, or in the event any person, who was not withdrawing, diverting or consuming any water resources from the ACF Basin as of the effective date of this Compact, seeks to withdraw, divert or consume more than one million gallons per day on an average annual daily basis from such resources. This Article shall not be construed as granting any permanent, vested or perpetual rights to the amounts of water used between January 3, 1992 and the date on which the Commission adopts an allocation formula. (d) As the owner, operator, licensor, permitting authority or regulator of a water resource facility under its jurisdiction, each state shall be responsible for using its best efforts to achieve compliance with the allocation formula adopted pursuant to this Article. Each such state agrees to take such actions as may be necessary to achieve compliance with the allocation formula.

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(e) This Compact shall not commit any state to agree to any data generated by any study or commit any state to any allocation formula not acceptable to such state. ARTICLE VIII CONDITIONS RESULTING IN TERMINATION OF THE COMPACT (a) This Compact shall be terminated and thereby be void and of no further force and effect if any of the following events occur: (1) The legislatures of the states of Alabama, Florida and Georgia each agree by general laws enacted by each state within any three consecutive years that this Compact should be terminated. (2) The United States Congress enacts a law expressly repealing this Compact. (3) The States of Alabama, Florida and Georgia fail to agree on an equitable apportionment of the surface waters of the ACF as provided in Article VII(a) of this Compact by December 31, 1998, unless the voting members of the ACF Basin Commission unanimously agree to extend this deadline. (4) The Federal Commissioner submits to the Commission a letter of nonconcurrence in the initial allocation formula in accordance with Article VII(a) of the Compact, unless the voting members of the ACF Basin Commission unanimously agree to allow a single 45 day period in which the non-voting Federal Commissioner and the voting State Commissioners may renegotiate an allocation formula and the Federal Commissioner withdraws the letter of nonconcurrence upon completion of this renegotiation. (b) If the Compact is terminated in accordance with this Article it shall be of no further force and effect and shall not be the subject of any proceeding for the enforcement thereof in any federal or state court. Further, if so terminated, no party shall be deemed to have acquired a specific right to any quantity of water because it has become a signatory to this Compact. ARTICLE IX COMPLETION OF STUDIES PENDING ADOPTION OF ALLOCATION FORMULA The ACF Basin Commission, in conjunction with one or more interstate, federal, state or local agencies, is hereby authorized to participate in any study in process as of the effective date of this Compact, including, without limitation, all or any part of the Alabama-Coosa-Tallapoosa/Apalachicola-Chattahoochee-Flint River Basin

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Comprehensive Water Resource Study, as may be determined by the Commission in its sole discretion. ARTICLE X RELATIONSHIP TO OTHER LAWS (a) It is the intent of the party states and of the United States Congress by ratifying this Compact, that all state and federal officials enforcing, implementing or administering other state and federal laws affecting the ACF Basin shall, to the maximum extent practicable, enforce, implement or administer those laws in furtherance of the purposes of this Compact and the allocation formula adopted by the Commission insofar as such actions are not in conflict with applicable federal laws. (b) Nothing contained in this Compact shall be deemed to restrict the executive powers of the President in the event of a national emergency. (c) Nothing contained in this Compact shall impair or affect the constitutional authority of the United States or any of its powers, rights, functions or jurisdiction under other existing or future laws in and over the area or waters which are the subject of the Compact, including projects of the Commission, nor shall any act of the Commission have the effect of repealing, modifying or amending any federal law. All officers, agencies and instrumentalities of the United States shall exercise their powers and authority over water resources in the ACF Basin and water resource facilities, and to the maximum extent practicable, shall exercise their discretion in carrying out their responsibilities, powers, and authorities over water resources in the ACF Basin and water resource facilities in the ACF Basin in a manner consistent with and that effectuates the allocation formula developed pursuant to this Compact or any modification of the allocation formula so long as the actions are not in conflict with any applicable federal law. The United States Army Corps of Engineers, or its successors, and all other federal agencies and instrumentalities shall cooperate with the ACF Basin Commission in accomplishing the purposes of the Compact and fulfilling the obligations of each of the parties to the Compact regarding the allocation formula. (d) Once adopted by the three states and ratified by the United States Congress, this Compact shall have the full force and effect of federal law, and shall supersede state and local laws operating contrary to the provisions herein or the purposes of this Compact; provided, however, nothing contained in this Compact shall be construed as affecting or intending to affect or in any way to interfere with the laws of the respective signatory states relating to water quality, and riparian rights as among persons exclusively within each state.

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ARTICLE XI PUBLIC PARTICIPATION All meetings of the Commission shall be open to the public. The signatory parties recognize the importance and necessity of public participation in activities of the Commission, including the development and adoption of the initial allocation formula and any modification thereto. Prior to the adoption of the initial allocation formula, the Commission shall adopt procedures ensuring public participation in the development, review, and approval of the initial allocation formula and any subsequent modification thereto. At a minimum, public notice to interested parties and a comment period shall be provided. The Commission shall respond in writing to relevant comments. ARTICLE XII FUNDING AND EXPENSES OF THE COMMISSION Commissioners shall serve without compensation from the ACF Basin Commission. All general operational funding required by the Commission and agreed to by the voting members shall obligate each state to pay an equal share of such agreed upon funding. Funds remitted to the Commission by a state in payment of such obligation shall not lapse; provided, however, that if any state fails to remit payment within 90 days after payment is due, such obligation shall terminate and any state which has made payment may have such payment returned. Costs of attendance and participation at meetings of the Commission by the Federal Commissioner shall be paid by the United States. ARTICLE XIII DISPUTE RESOLUTION (a) In the event of a dispute between two or more voting members of this Compact involving a claim relating to compliance with the allocation formula adopted by the Commission under this Compact, the following procedures shall govern: (1) Notice of claim shall be filed with the Commission by a voting member of this Compact and served upon each member of the Commission. The notice shall provide a written statement of the claim, including a brief narrative of the relevant matters supporting the claimant’s position. (2) Within twenty (20) days of the Commission’s receipt of a written statement of a claim, the party or parties to the Compact against whom the complaint is made may prepare a brief narrative of the relevant matters and file it with the Commission and serve it upon each member of the Commission.

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(3) Upon receipt of a claim and any response or responses thereto, the Commission shall convene as soon as reasonably practicable, but in no event later than twenty (20) days from receipt of any response to the claim, and shall determine if a resolution of the dispute is possible. (4) A resolution of a dispute under this Article through unanimous vote of the State Commissioners shall be binding upon the state parties and any state party determined to be in violation of the allocation formula shall correct such violation without delay. (5) If the Commission is unable to resolve the dispute within 10 days from the date of the meeting convened pursuant to subparagraph (a)(3) of this Article, the Commission shall select, by unanimous decision of the voting members of the Commission, an independent mediator to conduct a non-binding mediation of the dispute. The mediator shall not be a resident or domiciliary of any member state, shall not be an employee or agent of any member of the Commission, shall be a person knowledgeable in water resource management issues, and shall disclose any and all current or prior contractual or other relations to any member of the Commission. The expenses of the mediator shall be paid by the Commission. If the mediator becomes unwilling or unable to serve, the Commission by unanimous decision of the voting members of the Commission, shall appoint another independent mediator. (6) If the Commission fails to appoint an independent mediator to conduct a non-binding mediation of the dispute within seventy-five (75) days of the filing of the original claim or within thirty (30) days of the date on which the Commission learns that a mediator is unwilling or unable to serve, the party submitting the claim shall have no further obligation to bring the claim before the Commission and may proceed by pursuing any appropriate remedies, including any and all judicial remedies. (7) If an independent mediator is selected, the mediator shall establish the time and location for the mediation session or sessions and may request that each party to the Compact submit, in writing, to the mediator a statement of its position regarding the issue or issues in dispute. Such statements shall not be exchanged by the parties except upon the unanimous agreement of the parties to the mediation. (8) The mediator shall not divulge confidential information disclosed to the mediator by the parties or by witnesses, if any, in the course of the mediation. All records, reports, or other documents received by a

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(9) Each party to the mediation shall maintain the confidentiality of the information received during the mediation and shall not rely on or introduce in any judicial proceeding as evidence: a. Views expressed or suggestions made by another party regarding a settlement of the dispute; b. Proposals made or views expressed by the mediator; or c. The fact that another party to the hearing had or had not indicated a willingness to accept a proposal for settlement of the dispute. (10) The mediator may terminate the non-binding mediation session or sessions whenever, in the judgment of the mediator, further efforts to resolve the dispute would not lead to a resolution of the dispute between or among the parties. Any party to the dispute may terminate the mediation process at any time by giving written notification to the mediator and the Commission. If terminated prior to reaching a resolution, the party submitting the original claim to the Commission shall have no further obligation to bring its claim before the Commission and may proceed by pursuing any appropriate remedies, including any and all judicial remedies. (11) The mediator shall have no authority to require the parties to enter into a settlement of any dispute regarding the Compact. The mediator may simply attempt to assist the parties in reaching a mutually acceptable resolution of their dispute. The mediator is authorized to conduct joint and separate meetings with the parties to the mediation and to make oral or written recommendations for a settlement of the dispute. (12) At any time during the mediation process, the Commission is encouraged to take whatever steps it deems necessary to assist the mediator or the parties to resolve the dispute. (13) In the event of a proceeding seeking enforcement of the allocation formula, this Compact creates a cause of action solely for equitable relief. No action for money damages may be maintained. The party or parties alleging a violation of the Compact shall have the burden of proof. (b) In the event of a dispute between any voting member and the United States relating to a state’s noncompliance with the allocation formula as a result of actions or a refusal to act by officers, agencies or instrumentalities of the

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United States, the provisions set forth in paragraph (a) of this Article (other than the provisions of subparagraph (a)(4)) shall apply. (c) The United States may initiate dispute resolution under paragraph (a) in the same manner as other parties to this Compact. (d) Any signatory party who is affected by any action of the Commission, other than the adoption or enforcement of or compliance with the allocation formula, may file a complaint before the ACF Basin Commission seeking to enforce any provision of this Compact. (1) The Commission shall refer the dispute to an independent hearing officer or mediator, to conduct a hearing or mediation of the dispute. If the parties are unable to settle their dispute through mediation, a hearing shall be held by the Commission or its designated hearing officer. Following a hearing conducted by a hearing officer, the hearing officer shall submit a report to the Commission setting forth findings of fact and conclusions of law, and making recommendations to the Commission for the resolution of the dispute. (2) The Commission may adopt or modify the recommendations of the hearing officer within 60 days of submittal of the report. If the Commission is unable to reach unanimous agreement on the resolution of the dispute within 60 days of submittal of the report with the concurrence of the Federal Commissioner in disputes involving or affecting federal interests, the affected party may file an action in any court of competent jurisdiction to enforce the provisions of this Compact. The hearing officer’s report shall be of no force and effect and shall not be admissible as evidence in any further proceedings. (e) All actions under this Article shall be subject to the following provisions: (1) The Commission shall adopt guidelines and procedures for the appointment of hearing officers or independent mediators to conduct all hearings and mediations required under this Article. The hearing officer or mediator appointed under this Article shall be compensated by the Commission. (2) All hearings or mediations conducted under this article may be conducted utilizing the Federal Administrative Procedures Act, the Federal Rules of Civil Procedure, and the Federal Rules of Evidence. The Commission may also choose to adopt some or all of its own procedural and evidentiary rules for the conduct of hearings or mediations under this Compact.

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(3) Any action brought under this Article shall be limited to equitable relief only. This Compact shall not give rise to a cause of action for money damages. (4) Any signatory party bringing an action before the Commission under this Article shall have the burdens of proof and persuasion. ARTICLE XIV ENFORCEMENT The Commission may, upon unanimous decision, bring an action against any person to enforce any provision of this Compact, other than the adoption or enforcement of or compliance with the allocation formula, in any court of competent jurisdiction. ARTICLE XV IMPACTS ON OTHER STREAM SYSTEMS This Compact shall not be construed as establishing any general principle or precedent applicable to any other interstate streams. ARTICLE XVI IMPACT OF COMPACT ON USE OF WATER WITHIN THE BOUNDARIES OF THE COMPACTING STATES The provisions of this Compact shall not interfere with the right or power of any state to regulate the use and control of water within the boundaries of the state, providing such state action is not inconsistent with the allocation formula. ARTICLE XVII AGREEMENT REGARDING WATER QUALITY (a) The States of Alabama, Florida, and Georgia mutually agree to the principle of individual State efforts to control man-made water pollution from sources located and operating within each State and to the continuing support of each State in active water pollution control programs. (b) The States of Alabama, Florida, and Georgia agree to cooperate, through their appropriate State agencies, in the investigation, abatement, and control of sources of alleged interstate pollution within the ACF River Basin whenever such sources are called to their attention by the Commission. (c) The States of Alabama, Florida, and Georgia agree to cooperate in maintaining the quality of the waters of the ACF River Basin. (d) The States of Alabama, Florida, and Georgia agree that no State may require another state to provide water for the purpose of water quality control as a substitute for or in lieu of adequate waste treatment.

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ARTICLE XVIII EFFECT OF OVER OR UNDER DELIVERIES UNDER THE COMPACT No state shall acquire any right or expectation to the use of water because of any other state’s failure to use the full amount of water allocated to it under this Compact. ARTICLE XIX SEVERABILITY If any portion of this Compact is held invalid for any reason, the remaining portions, to the fullest extent possible, shall be severed from the void portion and given the fullest possible force, effect, and application. ARTICLE XX NOTICE AND FORMS OF SIGNATURE Notice of ratification of this Compact by the legislature of each state shall promptly be given by the Governor of the ratifying state to the Governors of the other participating states. When all three state legislatures have ratified the Compact, notice of their mutual ratification shall be forwarded to the Congressional delegation of the signatory states for submission to the Congress of the United States for ratification. When the Compact is ratified by the Congress of the United States, the President, upon signing the federal ratification legislation, shall promptly notify the Governors of the participating states and appoint the Federal Commissioner. The Compact shall be signed by all four Commissioners as their first order of business at their first meeting and shall be filed of record in the party states.

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Appendix B-4: Arkansas River Basin Compact of 1965

Public Law No. 89–789 80 Statutes at Large 1409 (1966) The State of Kansas and the State of Oklahoma, acting through their dulyauthorized Compact representatives, Robert L. Smith and Warden L. Noe, for the State of Kansas, and Geo. R. Benz and Frank Raab, for the State of Oklahoma, after negotiations participated in by Trigg Twichell, appointed by the President as the representative of the United States of America, and in accordance with the consent to such negotiations granted by an Act of Congress of the United States of America, approved August 11, 1955 (Public Law 340, 84th Congress, 1st Session), have agreed as follows respecting the waters of the Arkansas River and its tributaries: ARTICLE I The major purposes of this Compact are: A. To promote interstate comity between the States of Kansas and Oklahoma; B. To divide and apportion equitably between the States of Kansas and Oklahoma the waters of the Arkansas River Basin and to promote the orderly development thereof; C. To provide an agency for administering the water apportionment agreed to herein; D. To encourage the maintenance of an active pollution-abatement program in each of the two states and to seek the further reduction of both natural and man-made pollution in the waters of the Arkansas River Basin. ARTICLE II As used in this Compact: A. The term “state” shall mean either state signatory hereto and shall be construed to include any person or persons, entity or agency of either state who, by reason of official responsibility or by designation of the Governor of that state, is acting as an official representative of that state; B. The term “Kansas-Oklahoma Arkansas River Commission” or the term “Commission” means the agency created by this Compact for the administration thereof; C. The term “Arkansas River” means that portion of the Arkansas River from a point immediately below the confluence of the Arkansas and Little Arkansas Rivers in the vicinity of Wichita, Kansas, to a point immediately below

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the confluence of the Arkansas River with the Grand-Neosho River near Muskogee, Oklahoma; D. The term “Arkansas River Basin” means all of the drainage basin of the Arkansas River as delimited above, including all tributaries which empty into it between the upstream and downstream limits; E. The term “waters of the Arkansas River and its tributaries” means the waters originating in the Arkansas River Basin; F. The term “conservation storage capacity” means that portion of the active storage capacity of reservoirs, including multi-purpose reservoirs, with a conservation storage capacity in excess of one hundred 100 acre-feet, available for the storage of water for subsequent use, but it excludes any portion of the storage capacity allocated to flood and sediment control and inactive storage capacity allocated to other uses; G. The term “new conservation storage capacity” means conservation storage capacity for which construction is initiated after July 1, 1963, and storage capacity not presently allocated for conservation storage which is converted to conservation storage capacity after July 1, 1963, in excess of the quantities of declared conservation storage capacity as set forth in the storage table attached to and made a part of the minutes of the Twenty-fourth meeting of the Compact Committee dated September 1, 1964, and as filed and identified to this Compact in the offices of the Secretaries of State of the respective states; H. The term “pollution” means contamination or other alterations of the physical, chemical, biological or radiological properties of water or the discharge of any liquid, gaseous, or solid substances into any waters which creates or is likely to result in a nuisance, or which renders or is likely to render the waters into which it is discharged harmful, detrimental or injurious to public health, safety, or welfare or which is harmful, detrimental or injurious to beneficial uses of the water. ARTICLE III The physical and other conditions peculiar to the Arkansas River Basin constitute the basis for this Compact, and neither of the states hereby, nor the Congress of the United States by its consent hereto, concedes that this Compact establishes any general principle with respect to any other interstate stream. ARTICLE IV A. For the purpose of apportionment of water between the two states, the Arkansas

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River Basin is hereby divided into major topographic subbasins as follows: (1) the Grand-Neosho River Subbasin; (2) the Verdigris River Subbasin; (3) the Salt Fork River Subbasin; (4) the Cimarron River Subbasin; and (5) the mainstem Arkansas River Subbasin which shall consist of the Arkansas River Basin, excepting the Grand-Neosho River, Verdigris River, Salt Fork River, and Cimarron River subbasins. B. The two states recognize that portions of other states not signatory to this Compact lie within the drainage area of the Arkansas River Basin as herein defined. The water apportionments provided for in this Compact are not intended to affect nor do they affect the rights of such other states in and to the use of the waters of the basin. ARTICLE V The State of Kansas shall have free and unrestricted use of the waters of the Arkansas River Basin within Kansas subject to the provisions of this Compact and to the limitations set forth below: A. New conservation storage capacity in the Grand-Neosho River Subbasin within the State of Kansas shall not exceed six hundred fifty thousand (650,000) acre-feet plus an additional capacity equal to the new conservation storage in said drainage basin in Oklahoma excepting storage on Spavinaw Creek; B. New conservation storage capacity in the Verdigris River subbasin within the State of Kansas shall not exceed three hundred thousand (300,000) acrefeet plus an additional capacity equal to the new conservation storage in said drainage basin in Oklahoma, excepting navigation capacity allocated in Oologah Reservoir; C. New conservation storage capacity in the mainstem Arkansas River Subbasin within the State of Kansas shall not exceed six hundred thousand (600,000) acre-feet plus and additional capacity equal to the new conservation storage in said drainage basin in Oklahoma; D. New conservation storage capacity in the Salt Fork River Subbasin within the State of Kansas shall not exceed three hundred thousand (300,000) acre-feet plus an additional capacity equal to the new conservation storage in said drainage basin in Oklahoma;

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E. New conservation storage capacity in the Cimarron River Subbasin within the State of Kansas shall not exceed five thousand (5,000) acre-feet, provided that new conservation storage capacity in excess of that amount may be constructed if specific project plans have first been submitted to and have received the approval of the Commission. ARTICLE VI The State of Oklahoma shall have free and unrestricted use of the waters of the Arkansas River Basin within Oklahoma subject to the provisions of this Compact and to the limitations set forth below: New conservation storage capacity in the Cimarron River Subbasin within the State of Oklahoma shall not exceed five thousand (5,000) acre-feet provided that new conservation storage capacity in excess of that amount may be constructed if specific project plans have first been submitted to and have received the approval of the Commission. ARTICLE VII A. The Commission shall determine the conditions under which one state may construct and operate for its needs new conservation storage capacity in the other state. The construction or utilization of new conservation storage capacity by one state in the other state shall entitle the state whose storage potential is reduced by such construction to construct an equal amount of new conservation storage in a subbasin agreeable to the Commission. B. New conservation storage capacity constructed by the United States or any of its agencies, instrumentalities or wards, or by a state, political subdivision thereof, or any person or persons shall be charged against the state in which the use is made. C. Each state has the unrestricted right to replace within the same subbasin any conservation storage capacity made unusable by any cause. D. In the event reallocation of storage capacity in the Arkansas River Basin in Oklahoma should result in the reduction of that state’s new conservation storage capacity, such reallocation shall not reduce the total new conservation storage capacities available to Kansas under Article V; provided that a subsequent reinstatement of such storage capacity shall not be charged as an increase in Oklahoma’s new conservation storage capacity. ARTICLE VIII A. In the event of importation of water to a major subbasin of the Arkansas River

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B. In the event of exportation of water from a major subbasin for use in another major subbasin or for use outside the Arkansas River Basin within the same state, the limitations of Articles V and VI on new conservation capacity shall apply against the subbasin from which the exportation is made in the amount of the storage capacity actually used for that purpose within the exporting subbasin, or in the event of direct diversion of water without storage on the basis of five (5) acre-feet of conservation storage capacity for each acre-foot of water on the average so diverted annually. C. Any reservoir storage capacity which is required for the control and utiliza tion of imported waters shall not be accounted as new conservation storage. D. Should a transbasin diversion of water of the Arkansas River Basin be made in one state for the use and benefit of the other state or both states, the Commission shall determine a proper accounting of new conservation storage capacities in each state in accordance with the above principles and with the project uses to be made in that state. ARTICLE IX The States of Kansas and Oklahoma mutually agree to: A. The principle of individual state effort to abate man-made pollution within each state’s respective borders, and the continuing support of both states in an active pollution-abatement program; B. The cooperation of the appropriate state agencies in Kansas and Oklahoma to investigate and abate sources of alleged interstate pollution within the Arkansas River Basin whenever such matters are called to their attention by the Commission; C. Enter into joint programs for the identification and control of sources of natural pollution within the Arkansas River Basin which the Commission finds are of interstate significance; D. The principle that neither state may require the other to provide water for the purpose of water-quality control as a substitute for adequate waste treatment; E. Utilize the provisions of the Federal Water Pollution Control Act in the resolution of any pollution problems which cannot be resolved within the provisions of this Compact.

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ARTICLE X A. There is hereby created an interstate administrative agency to be known as the “Kansas-Oklahoma Arkansas River Commission.” The Commission shall be composed of three Commissioners representing each of the States of Kansas and Oklahoma who shall be appointed by the Governors of the respective states and, if designated by the President, one Commissioner representing the United States. The President is hereby requested to designate a Commissioner and an alternate representing the United States. The Federal Commissioner, if one be designated, shall be the presiding officer of the Commission, but shall not have the right to vote in any of the deliberations of the Commission. B. One Kansas Commissioner shall be the state official who now or hereafter shall be responsible for administering water law in the state; the other two Commissioners shall reside in the Arkansas River basin in Kansas and shall be appointed to four-year staggered terms. C. One Oklahoma Commissioner shall be the state official who now or hereafter shall be responsible for administering water law in the state; the other two Commissioners shall reside in the Arkansas River Basin in Oklahoma and shall be appointed to four-year staggered terms. D. A majority of the Commissioners of each state and the Commissioner or his alternate representing the United States, if so designated, must be present to constitute a quorum. In taking any Commission action, each signatory state shall have a single vote representing the majority opinion of the Commissioners of that state. E. The salaries and personal expenses of each Commissioner shall be paid by the government which he represents. All other expenses which are incurred by the Commission incident to the administration of this Compact shall be borne equally by the two states and shall be paid by the Commission out of the “Kansas-Oklahoma Arkansas River Commission Fund.” Such fund shall be initiated and maintained by equal payments of each state into the fund. Disbursements shall be made from said fund in such manner as may be authorized by the Commission. Such funds shall not be subject to the audit and accounting procedures of the states; however, all receipts and disbursements of funds handled by the Commission shall be audited by a qualified independent public accountant at regular intervals, and the report of such audit shall be included in and become a part of the annual report of the Commission.

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ARTICLE XI A. The Commission shall have the power to: (1) Employ such engineering, legal, clerical and other personnel as in its judgment may be necessary for the performance of its functions under the Compact; (2) Enter into contracts with appropriate state or federal agencies for the collection, correlation, and presentation of factual data, for the maintenance of records, and for the preparation of reports; (3) Establish and maintain an office for the conduct of its affairs; (4) Adopt rules and regulations governing its operations; (5) Cooperate with federal agencies in developing principles, consistent with the provisions of this Compact and with federal policy, for the storage and release of water from all-federal capacities of federal reservoirs, both existing and future within the Arkansas River Basin, for the purpose of assuring their operation in the best interests of the states and the United States; (6) Permit either state, with the consent of the proper operating agency, to impound water, for such periods of time deemed necessary or desirable by the Commission, in available reservoir storage capacity which is not designated as conservation or new conservation storage capacity for subsequent release and use for any purpose approved by the Commission; (7) Hold bearings and take testimony and receive evidence at such times and places as it deems necessary; (8) Secure from the head of any department or agency of the federal or state government such information, suggestions, estimates and statistics as it may need or believe to be useful for carrying out its functions and as may be available to or procurable by the department or agency to which the request is addressed; (9) Print or otherwise reproduce and distribute all of its proceedings and reports. B. The Commission shall: (1) Cause to be established, maintained and operated such stream, reservoir, or other gauging stations as may be necessary for the proper administration of the Compact;

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(2) Collect, analyze and report on data as to stream flows, water quality, conservation storage, and such other information as is necessary for the proper administration of the Compact; (3) Perform all other functions required of it by the Compact and do all things necessary, proper or convenient in the performance of its duties thereunder; (4) Prepare and submit an annual report to the Governor of each signatory state and to the President of the United States covering the activities of the Commission for the preceding fiscal year, together with an accounting of all funds received and expended by it in the conduct of its work; (5) Prepare and submit to the Governor of each of the States of Kansas and Oklahoma an annual budget covering the anticipated expenses of the Commission for the following fiscal year; (6) Make available to the Governor or any state agency of either state or to any authorized representative of the United States, upon request, any information within its possession. ARTICLE XII A. Recognizing the present limited uses of the available water supplies of the Arkansas River Basin in the two states and the uncertainties of their ultimate water needs, the States of Kansas and Oklahoma deem it imprudent and inadvisable to attempt at this time to make final allocations of the new conservation storage capacity which may ultimately be required in either state, and, by the limitations on storage capacity imposed herein, have not attempted to do so. Accordingly, after the expiration of 25 years following the effective date of this Compact, the Commission may review any provisions of the Compact for the purpose of amending or supplementing the same, and shall meet for the consideration of such review on the request of the Commissioners of either state; provided, that the provisions hereof shall remain in full force and effect until changed or amended by unanimous action of the states acting through their Commissioners and until such changes are ratified by the legislatures of the respective States and consented to by the Congress in the same manner as this Compact is required to be ratified to become effective. B. This Compact may be terminated at any time by the appropriate action of the legislatures of both signatory states.

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C. In the event of amendment or termination of the Compact, all rights established under the Compact shall continue unimpaired. ARTICLE XIII Nothing in this Compact shall be deemed: A. To impair or affect the powers, rights or obligations of the United States, or those claiming under its authority, in, over and to the waters of the Arkansas River Basin; B. To interfere with or impair the right or power of either signatory state to regulate within its boundaries the appropriation, use and control of waters within that state not inconsistent with its obligations under this Compact. ARTICLE XIV If any part or application of this Compact should be declared invalid by a court of competent jurisdiction, all other provisions and applications of this Compact shall remain in full force and effect. ARTICLE XV This Compact shall become binding and obligatory when it shall have been ratified by the legislatures of each state and consented to by the Congress of the United States, and when the Congressional Act consenting to this Compact includes the consent of Congress to name and join the United States as a party in any litigation in the United States Supreme Court, if the United States is an indispensable party, and if the litigation arises out of this Compact or its application, and if a signatory State is a party thereto. Notice of ratification by the legislature of each state shall be given by the Governor of that state to the Governor of the other state and to the President of the United States and the President is hereby requested to give notice to the Governor of each state of consent by the Congress of the United States. In Witness Whereof, the authorized representatives have executed three counterparts hereof each of which shall be and constitute an original, one of which shall be deposited in the Archives of the Department of State of the United States, and one of which shall be forwarded to the Governor of each state. DONE at the City of Wichita, State of Kansas, this 31st day of March, A.D., 1965.

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Appendix B-5: Arkansas River Basin Compact of 1970

Public Law No. 93–152 87 Statutes at Large 569 (1973) The State of Arkansas and the State of Oklahoma, acting through their duly authorized Compact representatives, S. Keith Jackson of Arkansas, and Glade R. Kirkpatrick of Oklahoma, after negotiations participated in by Trigg Twichell, appointed by the President as the representative of the United States of America, pursuant to and in accordance with the consent to such negotiations granted by an Act of Congress of the United States of America (Public Law 97, 84th Congress, 1st session), approved June 28, 1955, have agreed as follows respecting the waters of the Arkansas River and its tributaries: ARTICLE I The major purposes of this Compact are: A. To promote interstate comity between the States of Arkansas and Oklahoma; B. To provide for an equitable apportionment of the waters of the Arkansas River between the States of Arkansas and Oklahoma and to promote the orderly development thereof; C. To provide an agency for administering the water apportionment agreed to herein; D. To encourage the maintenance of an active pollution abatement program in each of the two states and to seek the further reduction of both natural and man-made pollution in the waters of the Arkansas River Basin; and E. To facilitate the cooperation of the water administration agencies of the States of Arkansas and Oklahoma in the total development and management of the water resources of the Arkansas River Basin. ARTICLE II As used in the Compact: A. The term “state” means either state signatory hereto and shall be construed to include any person or persons, entity or agency of either state who, by reason of official responsibility or by designation of the Governor of that state, is acting as an official representative of that state. B. The term “Arkansas-Oklahoma Arkansas River Compact Commission,” or the term “Commission” means the agency created by this Compact for the administration thereof.

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C. The term “Arkansas River Basin” means all of the drainage basin of the Arkansas River and its tributaries from a point immediately below the confluence of the Grand-Neosho River with the Arkansas River near Muskogee, Oklahoma, to a point immediately below the confluence of Lee Creek with the Arkansas River near Van Buren, Arkansas, together with the drainage basin of Spavinaw Creek in Arkansas, but excluding that portion of the drainage basin of the Canadian River above Eufaula Dam. D. The term “Spavinaw Creek Subbasin” means the drainage area of Spavinaw Creek in the State of Arkansas. E. The term “Illinois River Subbasin” means the drainage area of Illinois River in the State of Arkansas. F. The term “Lee Creek Subbasin” means the drainage area of Lee Creek in the State of Arkansas and the State of Oklahoma. G. The term “Poteau River Subbasin” means the drainage area of Poteau River in the State of Arkansas. H. The term “Arkansas River Subbasin” means all areas of the Arkansas River Basin except the four subbasins described above. I. The term “water-year” means a twelve-month period beginning on October 1, and ending September 30. J. The term “annual yield” means the computed annual gross runoff from any specified subbasin which would have passed any certain point on a stream and would have originated within any specified area under natural conditions, without any man-made depletion or accretion during the water year. K. The term “pollution” means contamination or other alterations of the physical, chemical, biological or radiological properties of water or the discharge of any liquid, gaseous, or solid substances into any waters which creates, or is likely to result in a nuisance, or which renders or is likely to render the waters into which it is discharged harmful, detrimental or injurious to public health, safety, or welfare, or which is harmful, detrimental or injurious to beneficial uses of the water. ARTICLE III A. The physical and other conditions peculiar to the Arkansas River Basin constitute the basis of this Compact, and neither of the states hereby, nor the Congress of the United States by its consent hereto, concedes that this Compact established any general principle with respect to any other interstate stream.

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B. By this Compact, neither state signatory hereto is relinquishing any interest or right it may have with respect to any waters flowing between them which do not originate in the Arkansas River Basin as defined by this Compact. ARTICLE IV The States of Arkansas and Oklahoma hereby agree upon the following apportionment of the waters of the Arkansas River Basin: A. The State of Arkansas shall have the right to develop and use the waters of the Spavinaw Creek Subbasin subject to the limitation that the annual yield shall not be depleted by more than fifty percent (50%). B. The State of Arkansas shall have the right to develop and use the waters of the Illinois River Subbasin subject to the limitation that the annual yield shall not be depleted by more than sixty percent (60%). C. The State of Arkansas shall have the right to develop and use all waters originating within the Lee Creek Subbasin in the State or Arkansas, or the equivalent thereof. D. The State of Oklahoma shall have the right to develop and use all waters originating within the Lee Creek Subbasin in the State of Oklahoma, or the equivalent thereof. E. The State of Arkansas shall have the right to develop and use the waters of the Poteau River Subbasin subject to the limitation that the annual yield shall not be depleted by more than sixty percent (60%). F. The State of Oklahoma shall have the right to develop and use the waters of the Arkansas River Subbasin subject to the limitation that the annual yield shall not be depleted by more than sixty percent (60%). ARTICLE V A. On or before December 31 of each year, following the effective date of this Compact, the Commission shall determine the stateline yields of the Arkansas River Basin for the previous water year. B. Any depletion of annual yield in excess of that allowed by the provisions of this Compact shall, subject to the control of the Commission, be delivered to the downstream State, and said delivery shall consist of not less than sixty percent (60%) of the current runoff of the basin. C. Methods for determining the annual yield of each of the subbasins shall be those developed and approved by the Commission.

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ARTICLE VI A. Each state may construct, own and operate for its needs water storage reservoirs in the other state. B. Depletion in annual yield of any subbasin of the Arkansas River Basin caused by the operation of any water storage reservoir either heretofore or hereafter constructed by the United States or any of its agencies, instrumentalities or wards, or by a state, political subdivision thereof, or any person or persons shall be charged against the state in which the yield therefrom is utilized. C. Each state shall have the free and unrestricted right to utilize the natural channel of any stream within the Arkansas River Basin for conveyance through the other state of waters released from any water storage reservoir for an intended downstream point of diversion or use without loss of ownership of such waters; provided, however, that a reduction shall be made in the amount of water which can be withdrawn at point of removal, equal to the transmission losses. ARTICLE VII The States of Arkansas and Oklahoma mutually agree to: A. The principle of individual state effort to abate man-made pollution within each state’s respective borders, and the continuing support of both states in an active pollution abatement program; B. The cooperation of the appropriate state agencies in the States of Arkansas and Oklahoma to investigate and abate sources of alleged interstate pollution within the Arkansas River Basin; C. Enter into joint programs for the identification and control of sources of pollution of the waters of the Arkansas River and its tributaries which are of interstate significance; D. The principle that neither state may require the other to provide water for the purpose of water quality control as a substitute for adequate waste treatment; E. Utilize the provisions of all federal and state water pollution laws and to recognize such water quality standards as may be now or hereafter established under the Federal Water Pollution Control Act in the resolution of any pollution problems affecting the waters of the Arkansas River Basin.

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ARTICLE VIII A. There is hereby created an interstate administrative agency to be known as the “Arkansas-Oklahoma Arkansas River Compact Commission.” The Commission shall be composed of three Commissioners representing the State of Arkansas and three Commissioners representing the State of Oklahoma, selected as provided below; and, if designated by the President or an authorized federal agency, one Commissioner representing the United States. The President, or the federal agency authorized to make such appointments, is hereby requested to designate a Commissioner and an alternate representing the United States. The Federal Commissioner, if one be designated, shall be the Chairman and presiding officer of the Commission, but shall not have the right to vote in any of the deliberations of the Commission. B. One Arkansas Commissioner shall be the Director of the Arkansas Soil and Water Conservation Commission, or such other agency as may be hereafter responsible for administering water law in the state. The other two Commissioners shall reside in the Arkansas River drainage area in the State of Arkansas and shall be appointed by the Governor, by and with the advice and consent of the Senate, to four-year staggered terms with the first two Commissioners being appointed simultaneously to terms of two (2) and four (4) years, respectively. C. One Oklahoma Commissioner shall be the Director of the Oklahoma Water Resources Board, or such other agency as may be hereafter responsible for administering water law in the state. The other two Commissioners shall reside within the Arkansas River drainage area in the State of Oklahoma and shall be appointed by the Governor, by and with the advice and consent of the Senate, to four-year staggered terms, with the first two Commissioners being appointed simultaneously to terms of two (2) and four (4) years, respectively. D. A majority of the Commissioners of each state and the Commissioner or his alternate representing the United States, if they are so designated, must be present to constitute a quorum. In taking any Commission action, each signatory state shall have a single vote representing the majority opinion of the Commissioners of that state. E. In the case of a tie vote on any of the Commission’s determinations, order, or other actions, a majority of the Commissioners of either state may, upon written request to the Chairman, submit the question to arbitration. Arbitration shall not be compulsory, but on the event of arbitration, there shall be three arbitrators: (1) One named by resolution duly adopted by the Arkansas Soil and Water Conservation Commission, or such other state agency as may be hereafter

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(2) One named by resolution duly adopted by the Oklahoma Water Resources Board, or such other state agency as may be hereafter responsible for administering water law in the State of Oklahoma; and (3) The third chosen by the two arbitrators who are selected as provided above. If the arbitrators fail to select a third within sixty (60) days following their selection, then he shall be chosen by the Chairman of the Commission. F. The salaries and personal expenses of each Commissioner shall be paid by the Government which he represents. All other expenses which are incurred by the Commission incident to the administration of this Compact shall be borne equally by the two states and shall be paid by the Commission out of the “Arkansas-Oklahoma Arkansas River Compact Fund,” initiated and maintained as provided in Article IX(B)(5) below. The states hereby mutually agree to appropriate sums sufficient to cover its share of the expenses incurred in the administration of this Compact, to be paid into said fund. Disbursements shall be made from said fund in such manner as may be authorized by the Commission. Such funds shall not be subject to the audit and accounting procedures of the states; however, all receipts and disbursements of funds handled by the Commission shall be audited by a qualified independent public accountant at regular intervals, and the report of such audit shall be included in and become a part of the annual report of the Commission, provided by Article IX(B)(6) below. The Commission shall not pledge the credit of either state and shall not incur any obligations prior to the availability of funds adequate to meet the same. ARTICLE IX A. The Commission shall have the power to: (1) Employ such engineering, legal, clerical and other personnel as in its judgment may be necessary for the performance of its functions under this Compact; (2) Enter into contracts with appropriate state or federal agencies for the collection, correlation, and presentation of factual data, for the maintenance of records and for the preparation of reports; (3) Establish and maintain an office for the conduct of its affairs; (4) Adopt and procure a seal for its official use;

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(5) Adopt rules and regulations governing its operations. The procedures employed for the administration of this Compact shall not be subject to any Administrative Procedures act of either state, but shall be subject to the provisions hereof and to the rules and regulations of the Commission; provided, however, all rules and regulations of the Commission shall be filed with the Secretary of State of the signatory States. (6) Cooperate with federal and state agencies and political subdivisions of the signatory states in developing principles, consistent with the provisions of this Compact and with federal and state policy, for the storage and release of water from reservoirs, both existing and future within the Arkansas River Basin, for the purpose of assuring their operation in the best interests of the states and the United States; (7) Hold hearings and compel the attendance of witnesses for the purpose of taking testimony and receiving other appropriate and proper evidence and issuing such appropriate orders as it deems necessary for the proper administration of this Compact, which orders shall be enforceable upon the request by the Commission or any other interested party in any court of competent jurisdiction within the county wherein the subject matter to which the order relates is in existence, subject to the right of review through the appellate courts of the State of situs. Any hearing held for the promulgation and issuance of orders shall be in the county and state of the subject matter of said hearing; (8) Make and file official certified copies of any of its findings, recommendations or reports with such officers or agencies of either state, or the United States, as may have any interest in or jurisdiction over the subject matter. Findings of fact made by the Commission shall be admissible in evidence and shall constitute prima facie evidence of such fact in any court or before any agency of competent jurisdiction. The making of findings, recommendations, or reports by the Commission shall not be a condition precedent to instituting or maintaining any action or proceeding of any kind by a signatory state in any court, or before any tribunal, agency or officer, for the protection of any right under this Compact or for the enforcement of any of its provisions; (9) Secure from the head of any department or agency of the federal or state government such information, suggestions, estimates and statistics as it may need or believe to be useful for carrying out its functions and as may be available to or procurable by the department or agency to which the request is addressed;

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(10) Print or otherwise reproduce and distribute all of its proceedings and reports; and (11) Accept, for the purposes of this Compact, any and all private donations and gifts and Federal grants of money. B. The Commission shall: (1) Cause to be established, maintained and operated such stream, reservoir or other gauging stations as may be necessary for the proper administration of this Compact; (2) Collect, analyze and report on data as to stream flows, water quality, annual yields and such other information as is necessary for the proper administration of this Compact; (3) Continue research for developing methods of determining total basin yields; (4) Perform all other functions required of it by the Compact and do all things necessary, proper or convenient in the performance of its duties thereunder; (5) Establish and maintain the “Arkansas-Oklahoma Arkansas River Compact Fund,” consisting of any and all funds received by the Commission under the authority of this Compact and deposited in one or more banks qualifying for the deposit of public funds of the signatory States; (6) Prepare and submit an annual report to the Governor of each signatory state and to the President of the United States covering the activities of the Commission for the preceding fiscal year, together with an accounting of all funds received and expended by it in the conduct of its work; (7) Prepare and submit to the Governor of each of the States of Arkansas and Oklahoma an annual budget covering the anticipated expenses of the Commission for the following fiscal year; and (8) Make available to the Governor or any state agency of either state or to any authorized representative of the United States, upon request, any information within its possession. ARTICLE X A. The provisions hereof shall remain in full force and effect until changed or amended by unanimous action of the states acting through their Commissioners

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and until such changes are ratified by the legislatures of the respective states and consented to by the Congress of the United States in the same manner as this Compact is required to be ratified to become effective. B. This Compact may be terminated at any time by the appropriate action of the legislature of both signatory states. C. In the event of amendment or termination of the Compact, all rights established under the Compact shall continue unimpaired. ARTICLE XI Nothing in this Compact shall be deemed: A. To impair or affect the powers, rights or obligations of the United States, or those claiming under its authority in, over and to the waters of the Arkansas River Basin; B. To interfere with or impair the right or power of either signatory State to regulate within its boundaries of appropriation, use and control of waters within that state not inconsistent with its obligations under this Compact. ARTICLE XII If any part or application of this Compact should be declared invalid by a court of competent jurisdiction, all other provisions and application of this Compact shall remain in full force and effect. ARTICLE XIII A. This Compact shall become binding and obligatory when it shall have been ratified by the legislature of each state and consented to by the Congress of the United States, and when the Congressional Act consenting to this Compact includes the consent of Congress to name and join the United States as a party in any litigation in the United States Supreme Court, if the United States is an indispensable party, and if the litigation arises out of this Compact or its application, and if a signatory state is a party thereto. B. The States of Arkansas and Oklahoma mutually agree and consent to be sued in the United States District Court under the provisions of Public Law 87–830 as enacted October 15, 1962, or as may be thereafter amended. C. Notice of ratification by the legislature of each state shall be given by the Governor of that state to the Governor of the other state, and to the President of the United States, and the President is hereby requested to give notice to the Governor of each state of consent by the Congress of the United States.

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Appendix B-6: Arkansas River Compact of 1949

Public Law No. 81–82 63 Statutes at Large 145 (1949) The state of Colorado and the state of Kansas, parties signatory to this compact (hereinafter referred to as “Colorado” and “Kansas,” respectively, or individually as a “state,” or collectively as the “states”) having resolved to conclude a compact with respect to the waters of the Arkansas river, and being moved by considerations of interstate comity, having appointed commissioners as follows: Henry C. Vidal, Gail L. Ireland, and Harry B. Mendenhall, for Colorado; and George S. Knapp, Edward F. Arn, William E. Leavitt, and Roland H. Tate, for Kansas; and the consent of the congress of the United States to negotiate and enter into an interstate compact not later than January 1, 1950, having been granted by Public Law 34, 79th Congress, 1st Session, and pursuant thereto the President having designated Hans Kramer as the representative of the United States, the said commissioners for Colorado and Kansas, after negotiations participated in by the representative of the United States, have agreed as follows: Article I The major purposes of this compact are to: A. Settle existing disputes and remove causes of future controversy between the states of Colorado and Kansas, and between citizens of one and citizens of the other state, concerning the waters of the Arkansas river and their control, conservation and utilization for irrigation and other beneficial purposes. B. Equitably divide and apportion between the states of Colorado and Kansas the waters of the Arkansas river and their utilization as well as the benefits arising from the construction, operation and maintenance by the United States of John Martin reservoir project for water conservation purposes. Article II The provisions of this compact are based on (1) the physical and other conditions peculiar to the Arkansas river and its natural drainage basin, and the nature and location of irrigation and other developments and facilities in connection therewith; (2) the opinion of the United States supreme court entered December 6, 1943, in the case of Colorado v. Kansas (320 U.S. 383) concerning the relative rights of the respective states in and to the use of waters of the Arkansas river; and (3) the experience derived under various interim executive agreements between the two states apportioning the waters released from the John Martin reservoir as operated by the corps of engineers.

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Article III As used in this compact: A. The word “stateline” means the geographical boundary line between Colorado and Kansas. B. The term “waters of the Arkansas river” means the waters originating in the natural drainage basin of the Arkansas river, including its tributaries, upstream from the stateline, and excluding waters brought into the Arkansas river basin from other river basins. C. The term “stateline flow” means the flow of waters of the Arkansas river as determined by gauging stations located at or near the stateline. The flow as determined by such stations, whether located in Colorado or Kansas, shall be deemed to be the actual stateline flow. D. “John Martin reservoir project” is the official name of the facility formerly known as Caddoa reservoir project, authorized by the Flood Control Act of 1936, as amended, for construction, operation and maintenance by the war department, corps of engineers, later designated as the corps of engineers, department of the army, and herein referred to as the “corps of engineers.” “John Martin reservoir” is the water storage space created by “John Martin dam.” E. The “flood control storage” is that portion of the total storage space in John Martin reservoir allocated to flood control purposes. F. The “conservation pool” is that portion of the total storage space in John Martin reservoir lying below the flood control storage. G. The “ditches of Colorado water district 67” are those ditches and canals which divert water from the Arkansas river or its tributaries downstream from John Martin dam for irrigation use in Colorado. H. The term “river flow” means the sum of the flows of the Arkansas and the Purgatorie rivers into John Martin reservoir as determined by gauging stations appropriately located above said reservoir. I. The term “the administration” means the Arkansas river compact administration established under article VIII. Article IV Both states recognize that:

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A. This compact deals only with the waters of the Arkansas river as defined in article III. B. This compact is not concerned with the rights, if any, of the state of New Mexico or its citizens in and to the use in New Mexico of waters of Trinchera creek or other tributaries of the Purgatorie river, a tributary of the Arkansas river. C. (1) John Martin dam will be operated by the corps of engineers to store and release the waters of the Arkansas river in and from John Martin reservoir for its authorized purposes. (2) The bottom of the flood control storage is presently fixed by the chief of engineers, U.S. Army, at elevation 3,851 feet above mean sea level. The flood control storage will be operated for flood control purposes and to those ends will impound or regulate the streamflow volumes that are in excess of the then available storage capacity of the conservation pool. Releases from the flood control storage may be made at times and rates determined by the corps of engineers to be necessary or advisable without regard to ditch diversion capacities or requirements in either or both states. (3) The conservation pool will be operated for the benefit of water users in Colorado and Kansas, both upstream and downstream from John Martin dam, as provided in this compact. The maintenance of John Martin dam and appurtenance works may at times require the corps of engineers to release waters then impounded in the conservation pool or to prohibit the storage of water therein until such maintenance work is completed. Flood control operation may also involve temporary utilization of conservation storage. D. This compact is not intended to impede or prevent future beneficial development of the Arkansas river basin in Colorado and Kansas by federal or state agencies, by private enterprise, or by combinations thereof, which may involve construction of dams, reservoirs and other works for the purposes of water utilization and control, as well as the improved or prolonged functioning of existing works: Provided, that the waters of the Arkansas river, as defined in article III, shall not be materially depleted in usable quantity or availability for use to the water users in Colorado and Kansas under this compact by such future development or construction. Article V Colorado and Kansas hereby agree upon the following basis of apportionment of

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the waters of the Arkansas river: A. Winter storage in John Martin reservoir shall commence on November 1st of each year and continue to and include the next succeeding March 31st. During said period all water entering said reservoir up to the limit of the then available conservation capacity shall be stored: Provided, that Colorado may demand releases of water equivalent to the river flow, but such releases shall not exceed 100 c.f.s. (cubic feet per second) and water so released shall be used without avoidable waste. B. Summer storage in John Martin reservoir shall commence on April 1st of each year and continue to and include the next succeeding October 31st. During said period, except when Colorado water users are operating under decreed priorities as provided in paragraphs F and G of this article, all water entering said reservoir up to the limit of the then available conservation capacity shall be stored: Provided, that Colorado may demand releases of water equivalent to the river flow up to 500 c.f.s., and Kansas may demand releases of water equivalent to that portion of the river flow between 500 c.f.s. and 750 c.f.s., irrespective of releases demanded by Colorado. C. Releases of water stored pursuant to the provisions of paragraphs A and B of this article shall be made upon demands by Colorado and Kansas concurrently or separately at any time during the summer storage period. Unless increases to meet extraordinary conditions are authorized by the administration, separate releases of stored water to Colorado shall not exceed 750 c.f.s., separate releases of stored water to Kansas shall not exceed 500 c.f.s., and concurrent releases of stored water shall not exceed a total of 1250 c.f.s.: Provided, that when water stored in the conservation pool is reduced to a quantity less than 20,000 acre-feet, separate releases of stored water to Colorado shall not exceed 600 c.f.s., and separate releases of stored water to Kansas shall not exceed 400 c.f.s., and concurrent releases of stored water shall not exceed 1,000 c.f.s. D. Releases authorized by paragraphs A, B, and C of this article, except when all Colorado water users are operating under decree priorities as provided in paragraphs F and G of this article, shall not impose any call on Colorado water users that divert waters of the Arkansas river upstream from John Martin dam. E. (1) Releases of stored water and releases of river flow may be made simultaneously upon the demands of either or both states. (2) Water released upon concurrent or separate demands shall be applied promptly to beneficial use unless storage thereof downstream is

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(3) Releases of river flow and of stored water to Colorado shall be measured by gauging stations located at or near John Martin dam and the releases to which Kansas is entitled shall be satisfied by an equivalent in state line flow. (4) When water is released from John Martin reservoir appropriate allowances as determined by the administration shall be made for the intervals of time required for such water to arrive at the points of diversion in Colorado and at the state line. (5) There shall be no allowance or accumulation of credits or debits for or against either state. (6) Storage, releases from storage and releases of river flow authorized in this article shall be accomplished pursuant to procedures prescribed by the administration under the provisions of article VIII. F. In the event the administration finds that within a period of fourteen days the water in the conservation pool will be or is liable to be exhausted, the administration shall forthwith notify the state engineer of Colorado, or his duly authorized representative, that commencing upon a day certain within said fourteen day period, unless a change of conditions justifies cancellation or modification of such notice, Colorado shall administer the decreed rights of water users in Colorado water district 67 as against each other and as against all rights now or hereafter decreed to water users diverting upstream from John Martin dam on the basis of relative priorities in the same manner in which their respective priority rights were administered by Colorado before John Martin reservoir began to operate and as though John Martin dam had not been constructed. Such priority administration by Colorado shall be continued until the administration finds that water is again available in the conservation pool for release as provided in this compact, and timely notice of such finding shall be given by the administration to the state engineer of Colorado or his duly authorized representative; provided, that except as controlled by the operation of the preceding provisions of this paragraph and other applicable provisions of this compact, when there is water in the conservation pool the water users upstream from John Martin reservoir shall not be affected by the decrees to the ditches in Colorado water district 67. Except when administration in Colorado is on a priority basis the water diversions in Colorado water district 67 shall be administered by Colorado in accordance with distribution agreements made from time to time between the water users in such district and filed with the administration and with the state engineer of Colorado or, in the absence of such agreement,

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upon the basis of the respective priority decrees, as against each other, in said district. G. During periods when Colorado reverts to administration of decree priorities, Kansas shall not be entitled to any portion of the river flow entering John Martin reservoir. Waters of the Arkansas river originating in Colorado which may flow across the state line during such periods are hereby apportioned to Kansas. H. If the usable quantity and availability for use of the waters of the Arkansas river to water users in Colorado water district 67 and Kansas will be thereby materially depleted or adversely affected, (1) priority rights now decreed to the ditches of Colorado water district 67 shall not hereafter be transferred to other water districts in Colorado or to points of diversion or places of use upstream from John Martin dam; and (2) the ditch diversion rights from the Arkansas river in Colorado water district 67 and of Kansas ditches between the state line and Garden City shall not hereafter be increased beyond the total present rights of said ditches, without the administration, in either case (1) or (2), making findings of fact that no such depletion or adverse effect will result from such proposed transfer or increase. Notice of legal proceedings for any such proposed transfer or increase shall be given to the administration in the manner and within the time provided by the laws of Colorado or Kansas in such cases. Article VI A. (1) Nothing in this compact shall be construed as impairing the jurisdiction of Kansas over the waters of the Arkansas river that originate in Kansas and over the waters that flow from Colorado across the state line into Kansas. (2) Except as otherwise provided, nothing in this compact shall be construed as supplanting the administration by Colorado of the rights of appropriators of waters of the Arkansas river in said state as decreed to said appropriators by the courts of Colorado, nor as interfering with the distribution among said appropriators by Colorado, nor as curtailing the diversion and use for irrigation and other beneficial purposes in Colorado of the waters of the Arkansas river. B. Inasmuch as the Frontier canal diverts waters of the Arkansas river in Colorado west of the state line for irrigation uses in Kansas only, Colorado concedes to Kansas and Kansas hereby assumes exclusive administrative control over

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Article VII A. Each state shall be subject to the terms of this compact. Where the name of the state or the term “state” is used in this compact these shall be construed to include any person or entity of any nature whatsoever using, claiming or in any manner asserting any right to the use of the waters of the Arkansas river under the authority of that state. B. This compact establishes no general principle or precedent with respect to any other interstate stream. C. Wherever any state or federal official agency is referred to in this compact such reference shall apply to the comparable official or agency succeeding to their duties and functions. Article VIII A. To administer the provisions of this compact there is hereby created an interstate agency to be known as the Arkansas river compact administration herein designated as “the administration.” B. The administration shall have power to: (1) Adopt, amend and revoke by-laws, rules and regulations consistent with the provisions of this compact; (2) Prescribe procedures for the administration of this compact: Provided, that where such procedures involve the operation of John Martin reservoir project they shall be subject to the approval of the district engineer in charge of said project; (3) Perform all functions required to implement this compact and to do all things necessary, proper or convenient in the performance of its duties. C. The membership of the administration shall consist of three representatives from each state who shall be appointed by the respective governors for a term not to exceed four years. One Colorado representative shall be a resident of and water right owner in water districts 14 or 17, one Colorado representative shall be a resident of and water right owner in water district 67, and one Colorado representative shall be the director of the Colorado water conservation board.

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Two Kansas representatives shall be residents of and water right owners in the counties of Finney, Kearny or Hamilton, and one Kansas representative shall be the chief state official charged with the administration of water rights in Kansas. The President of the United States is hereby requested to designate a representative of the United States, and if a representative is so designated he shall be an ex officio member and act as chairman of the administration without vote. D. The state representatives shall be appointed by the respective governors within thirty days after the effective date of this compact. The administration shall meet and organize within sixty days after such effective date. A quorum for any meeting shall consist of four members of the administration: Provided, that at least two members are present from each state. Each state shall have but one vote in the administration and every decision, authorization or other action shall require unanimous vote. In case of a divided vote on any matter within the purview of the administration, the administration may, by subsequent unanimous vote, refer the matter for arbitration to the representative of the United States or other arbitrator or arbitrators, in which event the decision made by such arbitrator or arbitrators shall be binding upon the administration. E. (1) The salaries, if any, and the personal expenses of each member shall be paid by the government which he represents. All other expenses incident to the administration of this compact which are not paid by the United States shall be borne by the states on the basis of 60 per cent by Colorado and 40 per cent by Kansas. (2) In each even numbered year the administration shall adopt and transmit to the governor of each state its budget covering anticipated expenses for the forthcoming biennium and the amount thereof payable by each state. Each state shall appropriate and pay the amount due by it to the administration. (3) The administration shall keep accurate accounts of all receipts and disbursements and shall include a statement thereof, together with a certificate of audit by a certified public accountant, in its annual report. Each state shall have the right to make an examination and audit of the accounts of the administration at any time. F. Each state shall provide such available facilities, equipment and other assistance as the administration may need to carry out its duties. To supplement such available assistance the administration may employ engineering, legal, clerical and other aid as in its judgment may be necessary for the performance

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Appendix B of its functions. Such employees shall be paid by and be responsible to the administration, and shall not be considered to be employees of either state.

G. (1) The administration shall co-operate with the chief official of each state charged with the administration of water rights and with federal agencies in the systematic determination and correlation of the facts as to the flow and diversion of the waters of the Arkansas river and as to the operation and siltation of John Martin reservoir and other related structures. The administration shall co-operate in the procurement, interchange, compilation and publication of all factual data bearing upon the administration of this compact without, in general, duplicating measurements, observations or publications made by state or federal agencies. State officials shall furnish pertinent factual data to the administration upon its request. The administration shall, with the collaboration of the appropriate federal and state agencies, determine as may be necessary from time to time, the location of gauging stations required for the proper administration of this compact and shall designate the official records of such stations for its official use. (2) The director, U.S. geological survey, the commissioner of reclamation and the chief of engineers, U.S. Army, are hereby requested to collaborate with the administration and with appropriate state officials in the systematic determination and correlation of data referred to in paragraph G(1) of this article and in the execution of other duties of such officials which may be necessary for the proper administration of this compact. (3) If deemed necessary for the administration of this compact, the administration may require the installation and maintenance, at the expense of water users, of measuring devices of approved type in any ditch or group of ditches diverting water from the Arkansas river in Colorado or Kansas. The chief official of each state charged with the administration of water rights shall supervise the execution of the administration’s requirements for such installations. H. Violation of any of the provisions of this compact or other actions prejudicial thereto which come to the attention of the administration shall be promptly investigated by it. When deemed advisable as the result of such investigation, the administration may report its findings and recommendations to the state official who is charged with the administration of water rights for appropriate action, it being the intent of this compact that enforcement of its terms shall

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be accomplished in general through the state agencies and officials charged with the administration of water rights. I. Findings of fact made by the administration shall not be conclusive in any court or before any agency or tribunal but shall constitute prima facie evidence of the facts found. J. The administration shall report annually to the governors of the states and to the President of the United States as to matters within its purview. Article IX A. This compact shall become effective when ratified by the legislature of each state and when consented to by the congress of the United States by legislation providing substantially, among other things, as follows: Nothing contained in this act or in the compact herein consented to shall be construed as impairing or affecting the sovereignty of the United States or any of its rights or jurisdiction in and over the area or waters which are the subject of such compact: Provided, that the chief of engineers is hereby authorized to operate the conservation features of the John Martin reservoir project in a manner conforming to such compact with such exceptions as he and the administration created pursuant to the compact may jointly approve. B. This compact shall remain in effect until modified or terminated by unanimous action of the states and in the event of modification or termination all rights then established or recognized by this compact shall continue unimpaired. IN WITNESS WHEREOF, the commissioners have signed this compact in triplicate original, one of which shall be forwarded to the secretary of state of the United States of America and one of which shall be forwarded to the governor of each signatory state. Done in the city and county of Denver, in the state of Colorado, on the fourteenth day of December, in the year of our Lord one thousand nine hundred and forty-eight.

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Appendix B-7: Bear River Compact

Public Law No. 85–348 72 Statutes at Large 38 (1958) The state of Idaho, the state of Utah, and the state of Wyoming, acting through their respective commissioners after negotiations participated in by a representative of the United States of America appointed by the president, have agreed to an amended Bear River Compact as follows: ARTICLE I A. The major purposes of this compact are to remove the causes of present and future controversy over the distribution and use of the waters of the Bear River; to provide for efficient use of water for multiple purposes; to permit additional development of the water resources of Bear River; to promote interstate comity; to accomplish an equitable apportionment of the waters of the Bear River among the compacting states. B. The physical and all other conditions peculiar to the Bear River constitute the basis for this compact. No general principle or precedent with respect to any other interstate stream is intended to be established. ARTICLE II As used in this compact the term 1. “Bear River” means the Bear River and its tributaries from its source in the Uinta Mountains to its mouth in Great Salt Lake; 2. “Bear Lake” means Bear Lake and Mud Lake; 3. “Upper division” means the portion of Bear River from its source in the Uinta Mountains to and including Pixley Dam, a diversion dam in the southeast quarter of section 25, township 23 north, range 120 west, sixth principal meridian, Wyoming; 4. “Central division” means the portion of the Bear River from Pixley Dam to and including Stewart Dam, a diversion dam in section 34, township 13 south, range 44 east, Boise base and meridian, Idaho; 5. “Lower division” means the portion of the Bear River between Stewart Dam and Great Salt Lake, including Bear Lake and its tributary drainage; 6. “Upper Utah section diversions” means the sum of all diversions in secondfeet from the Bear River and the tributaries of Bear River joining the Bear River upstream from the point where the Bear River crosses the Utah-Wyoming state line above Evanston, Wyoming; excluding the diversions by the Hilliard

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East Fork Canal, Lannon Canal, Lone Mountain Ditch, and Hilliard West Side Canal; 7. “Upper Wyoming section diversions” means the sum of all diversions in second-feet from the Bear River main stem from the point where the Bear River crosses the Utah-Wyoming state line above Evanston, Wyoming, to the point where the Bear River crosses the Wyoming-Utah state line east of Woodruff, Utah, and including the diversions by the Hilliard East Fork Canal, Lannon Canal, Lone Mountain Ditch, and Hilliard West Side Canal; 8. “Lower Utah section diversions” means the sum of all diversions in secondfeet from the Bear River main stem from the point where the Bear River crosses the Wyoming-Utah state line east of Woodruff, Utah, to the point where the Bear River crosses the Utah-Wyoming state line northeast of Randolph, Utah; 9. “Lower Wyoming section diversions” means the sum of all diversions in second-feet from the Bear River main stem from the point where the Bear River crosses the Utah-Wyoming state line northeast of Randolph to and including the diversion at Pixley Dam; 10. “Commission” means the Bear River commission, organized pursuant to article III of this compact; 11. “Water user” means a person, corporation, or other entity having a right to divert water from the Bear River for beneficial use; 12. “Second-foot” means a flow of one cubic foot of water per second of time passing a given point; 13. “Acre-foot” means the quantity of water required to cover one acre to a depth of one foot, equivalent to 43,560 cubic feet; 14. “Biennium” means the 2-year period commencing on October 1 of the first odd numbered year after the effective date of this compact and each 2-year period thereafter; 15. “Water year” means the period beginning October 1 and ending September 30 of the following year; 16. “Direct flow” means all water flowing in a natural watercourse except water released from storage or imported from a source other than the Bear River watershed; 17. “Border gauging station” means the stream flow gauging station in Idaho on the Bear River above Thomas Fork near the Wyoming-Idaho boundary line in

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Appendix B the northeast quarter of the northeast quarter of section 15, township 14 south, range 46 east, Boise base and meridian, Idaho;

18. “Smiths Fork” means a Bear River tributary which rises in Lincoln County, Wyoming and flows in a general southwesterly direction to its confluence with Bear River near Cokeville, Wyoming; 19. “Grade Creek” means a Smiths Fork tributary which rises in Lincoln County, Wyoming and flows in a westerly direction and in its natural channel is tributary to Smiths Fork in section 17, township 25 north, range 118 west, sixth principal meridian, Wyoming; 20. “Pine Creek” means a Smiths Fork tributary which rises in Lincoln County, Wyoming, emerging from its mountain canyon in section 34, township 25 north, range 118 west, sixth principal meridian, Wyoming, and in its natural channel is tributary to Smiths Fork in section 36, township 25 north, range 119 west, sixth principal meridian, Wyoming; 21. “Bruner Creek” and “Pine Creek Springs” means Smiths Fork tributaries which rise in Lincoln County, Wyoming, in sections 31 and 32, township 25 north, range 118 west, sixth principal meridian, and in their natural channels are tributary to Smiths Fork in section 36, township 25 north, range 119 west, sixth principal meridian, Wyoming; 22. “Spring Creek” means a Smiths Fork tributary which rises in Lincoln County, Wyoming, in sections 1 and 2, township 24 north, range 119 west, sixth principal meridian, Wyoming, and flows in a general westerly direction to its confluence with Smiths Fork in section 4, township 24 north, range 119 west, sixth principal meridian, Wyoming; 23. “Sublette Creek” means the Bear River tributary which rises in Lincoln County, Wyoming and flows in a general westerly direction to its confluence with Bear River in section 20, township 24 north, range 119 west, sixth principal meridian, Wyoming; 24. “Hobble Creek” means the Smiths Fork tributary which rises in Lincoln County, Wyoming and flows in a general southwesterly direction to its confluence with Smiths Fork in section 35, township 28 north, range 118 west, sixth principal meridian, Wyoming; 25. “Hilliard East Fork Canal” means that irrigation canal which diverts water from the right bank of the east fork of Bear River in Summit County, Utah, at a point west 1,310 feet and north 330 feet from the southeast corner of section 16, township 2 north, range 10 east, Salt Lake base and meridian, Utah, and runs in a northerly direction crossing the Utah-Wyoming state line into

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the southwest quarter of section 21, township 12 north, range 119 west, sixth principal meridian, Wyoming; 26. “Lannon Canal” means that irrigation canal which diverts water from the right bank of the Bear River in Summit County, Utah, east 1,480 feet from the west quarter corner of section 19, township 3 north, range 10 east, Salt Lake base and meridian, Utah, and runs in a northerly direction crossing the UtahWyoming state line into the south half of section 20, township 12 north, range 119 west, sixth principal meridian, Wyoming; 27. “Lone Mountain Ditch” means that irrigation canal which diverts water from the right bank of the Bear River in Summit County, Utah, north 1,535 feet and east 1,120 feet from the west quarter corner of section 19, township 3 north, range 10 east, Salt Lake base and meridian, Utah, and runs in a northerly direction crossing the Utah-Wyoming state line into the south half of section 20, township 12 north, range 119 west, sixth principal meridian, Wyoming; 28. “Hilliard West Side Canal” means that irrigation canal which diverts water from the right bank of the Bear River in Summit County, Utah, at a point north 2,190 feet and east 1,450 feet from the south quarter corner of section 13, township 3 north, range 9 east, Salt Lake base and meridian, Utah, and runs in a northerly direction crossing the Utah-Wyoming state line into the south half of section 20, township 12 north, range 119 west, sixth principal meridian, Wyoming; 29. “Francis Lee Canal” means that irrigation canal which diverts water from the left bank of the Bear River in Uinta County, Wyoming, in the northeast quarter of section 30, township 18 north, range 120 west, sixth principal meridian, Wyoming, and runs in a westerly direction across the Wyoming-Utah state line into section 16, township 9 north, range 8 east, Salt Lake base and meridian, Utah; 30. “Chapman Canal” means that irrigation canal which diverts water from the left bank of the Bear River in Uinta County, Wyoming, in the northeast quarter of section 36, township 16 north, range 121 west, sixth principal meridian, Wyoming, and runs in a northerly direction crossing over the low divide into the Saleratus drainage basin near the southeast corner of section 36, township 17 north, range 121 west, sixth principal meridian, Wyoming and then in a general westerly direction crossing the Wyoming-Utah state line; 31. “Neponset Reservoir” means that reservoir located principally in sections 34 and 35, township 8 north, range 7 east, Salt Lake base and meridian, Utah, having a capacity of 6,900 acre-feet.

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ARTICLE III A. There is hereby created an interstate administrative agency to be known as the “Bear River Commission” which is hereby constituted a legal entity and in such name shall exercise the powers hereinafter specified. The commission shall be composed of nine commissioners, three commissioners representing each signatory state, and if appointed by the president, one additional commissioner representing the United States of America who shall serve as chairman, without vote. Each commissioner, except the chairman, shall have one vote. The state commissioners shall be selected in accordance with state law. Six commissioners who shall include two commissioners from each state shall constitute a quorum. The vote of at least two-thirds of the commissioners when a quorum is present shall be necessary for the action of the commission. B. The compensation and expenses of each commissioner and each adviser shall be paid by the government which he represents. All expenses incurred by the commission in the administration of this compact, except those paid by the United States of America, shall be paid by the signatory states on an equal basis. C. The commission shall have power to: 1. Adopt by-laws, rules, and regulations not inconsistent with this compact; 2. Acquire, hold, convey or otherwise dispose of property; 3. Employ such persons and contract for such services as may be necessary to carry out its duties under this compact; 4. Sue and be sued as a legal entity in any court of record of a signatory state, and in any court of the United States having jurisdiction of such action; 5. Cooperate with state and federal agencies in matters relating to water pollution of interstate significance; 6. Perform all functions required of it by this compact and do all things necessary, proper or convenient in the performance of its duties hereunder, independently or in cooperation with others, including state and federal agencies. D. The commission shall: 1. Enforce this compact and its orders made hereunder by suit or other appropriate action;

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2. Compile a report covering the work of the commission and expenditures during the current biennium, and an estimate of expenditures for the following biennium and transmit it to the president of the United States and to the governors of the signatory states on or before July 1 following each biennium. ARTICLE IV Rights to direct flow water shall be administered in each signatory state under state law, with the following limitations: A. When there is a water emergency, as hereinafter defined for each division, water shall be distributed therein as provided below. 1. Upper division a. When the divertible flow as defined below for the upper division is less than 1,250 second-feet, a water emergency shall be deemed to exist therein and such divertible flow is allocated for diversion in the river sections of the division as follows: Upper Utah section diversions—0.6 percent, Upper Wyoming section diversions—49.3 percent, Lower Utah section diversions—40.5 percent, Lower Wyoming section diversions—9.6 percent. Such divertible flow shall be the total of the following five items: (1) Upper Utah section diversions in second-feet, (2) Upper Wyoming section diversions in second-feet, (3) Lower Utah section diversions in second-feet, (4) Lower Wyoming section diversions in second-feet, (5) The flow in second-feet passing Pixley Dam. b. The Hilliard East Fork Canal, Lannon Canal, Lone Mountain Ditch, and Hilliard West Side Canal, which divert water in Utah to irrigate lands in Wyoming, shall be supplied from the divertible flow allocated to the Upper Wyoming section diversions. c. The Chapman, Bear River, and Francis Lee Canals, which divert water from the main stem of Bear River in Wyoming to irrigate lands in both Wyoming and Utah, shall be supplied from the divertible flow allocated to the Upper Wyoming section diversions. d. The Beckwith Quinn West Side Canal, which diverts water from the main stem of Bear River in Utah to irrigate lands in both Utah and Wyoming, shall be supplied from the divertible flow allocated to the Lower Utah section diversions.

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e. If for any reason the aggregate of all diversions in a river section of the upper division does not equal the allocation of water thereto, the unused portion of such allocation shall be available for use in the other river sections in the upper division in the following order: (1) In the other river section of the same state in which the unused allocation occurs; and (2) In the river sections of the other state. No permanent right of use shall be established by the distribution of water pursuant to this paragraph e. f. Water allocated to the several sections shall be distributed in each section in accordance with state law. 2. Central division a. When either the divertible flow as hereinafter defined for the central division is less than 870 second-feet, or the flow of the Bear River at Border Gauging Station is less than 350 second-feet, whichever shall first occur, a water emergency shall be deemed to exist in the central division and the total of all diversions in Wyoming from Grade Creek, Pine Creek, Bruner Creek and Pine Creek Springs, Spring Creek, Sublette Creek, Smiths Fork, and all the tributaries of Smiths Fork above the mouth of Hobble Creek including Hobble Creek, and from the main stem of the Bear River between Pixley Dam and the point where the river crosses the Wyoming-Idaho state line near Border shall be limited for the benefit of the state of Idaho, to not exceeding forty-three (43) percent of the divertible flow. The remaining fifty-seven (57) percent of the divertible flow shall be available for use in Idaho in the central division, but if any portion of such allocation is not used therein it shall be available for use in Idaho in the lower division. The divertible flow for the central division shall be the total of the following three items: (1) Diversions in second-feet in Wyoming consisting of the sum of all diversions from Grade Creek, Pine Creek, Bruner Creek and Pine Creek Springs, Spring Creek, Sublette Creek, and Smiths Fork and all the tributaries of Smiths Fork above the mouth of Hobble Creek including Hobble Creek, and the main stem of the Bear River between Pixley Dam and the point where the river crosses the Wyoming-Idaho state line near Border, Wyoming. (2) Diversions in second-feet in Idaho from the Bear River main stem from the point where the river crosses the WyomingIdaho state line near Border to Stewart Dam including West Fork Canal which diverts at Stewart Dam.

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(3) Flow in second-feet of the Rainbow Inlet Canal and of the Bear River passing downstream from Stewart Dam. b. The Cook Canal, which diverts water from the main stem of the Bear River in Wyoming to irrigate lands in both Wyoming and Idaho, shall be considered a Wyoming diversion and shall be supplied from the divertible flow allocated to Wyoming. c. Water allocated to each state shall be distributed in accordance with state law. 3. Lower division a. When the flow of water across the Idaho-Utah boundary line is insufficient to satisfy water rights in Utah, covering water applied to beneficial use prior to January 1, 1976, any water user in Utah may file a petition with the commission alleging that by reason of diversions in Idaho he is being deprived of water to which he is justly entitled, and that by reason thereof, a water emergency exists, and requesting distribution of water under the direction of the commission. If the commission finds a water emergency exists, it shall put into effect water delivery schedules based on priority of rights and prepared by the commission without regard to the boundary line for all or any part of the division, and during such emergency, water shall be delivered in accordance with such schedules by the state official charged with the administration of public waters. B. The commission shall have authority upon its own motion (1) to declare a water emergency in any or all river divisions based upon its determination that there are diversions which violate this compact and which encroach upon water rights in a lower state, (2) to make appropriate orders to prevent such encroachments, and (3) to enforce such orders by action before state administrative officials or by court proceedings. C. When the flow of water in an interstate tributary across a state boundary line is insufficient to satisfy water rights on such tributary in a lower state, any water user may file a petition with the commission alleging that by reason of diversions in an upstream state he is being deprived of water to which he is justly entitled and that by reason thereof a water emergency exists, and requesting distribution of water under the direction of the commission. If the commission finds that a water emergency exists and that interstate control of water of such tributary is necessary, it shall put into effect water delivery schedules based on priority of rights and prepared without regard to the state boundary line. The state officials in charge of water distribution

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Appendix B on interstate tributaries may appoint and fix the compensation and expenses of a joint water commissioner for each tributary. The proportion of the compensation and expenses to be paid by each state shall be determined by the ratio between the number of acres therein which are irrigated by diversions from such tributary, and the total number of acres irrigated from such tributary.

D. In preparing interstate water delivery schedules the commission, upon notice and after public hearings, shall make findings of fact as to the nature, priority and extent of water rights, rates of flow, duty of water, irrigated acreages, types of crops, time of use, and related matters; provided that such schedules shall recognize and incorporate therein priority of water rights as adjudicated in each of the signatory states. Such findings of fact shall, in any court or before any tribunal, constitute prima facie evidence of the facts found. E. Water emergencies provided for herein shall terminate on September 30 of each year unless terminated sooner or extended by the commission. ARTICLE V A. Water rights in the lower division acquired under the laws of Idaho and Utah covering water applied to beneficial use prior to January 1, 1976, are hereby recognized and shall be administered in accordance with state law based on priority of rights as provided in Article IV, paragraph A.3. Rights to water first applied to beneficial use on or after January 1, 1976, shall be satisfied from the respective allocations made to Idaho and Utah in this paragraph and the water allocated to each state shall be administered in accordance with state law. Subject to the foregoing provisions, the remaining water in the lower division, including ground water tributary to the Bear River, is hereby apportioned for use in Idaho and Utah as follows: (1) Idaho shall have the first right to the use of such remaining water resulting in an annual depletion of not more than 125,000 acre-feet; (2) Utah shall have the second right to the use of such remaining water resulting in an annual depletion of not more than 275,000 acre-feet; (3) Idaho and Utah shall each have an additional right to deplete annually on an equal basis, 75,000 acre-feet of the remaining water after the rights provided by subparagraphs (1) and (2) above have been satisfied; (4) Any remaining water in the lower division after the allocations provided for in subparagraphs (1), (2), and (3) above have been satisfied shall be divided; thirty (30) percent to Idaho and seventy (70) percent to Utah.

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B. Water allocated under the above subparagraphs shall be charged against the state in which it is used regardless of the location of the point of diversion. C. Water depletions permitted under provisions of subparagraphs (1), (2), and (3), and (4) above, shall be calculated and administered by a commissionapproved procedure. ARTICLE VI A. Existing storage rights in reservoirs constructed above Stewart Dam prior to February 4, 1955 are as follows: Idaho Utah Wyoming

324 acre-feet 11,850 acre-feet 2,150 acre-feet

Additional rights are hereby granted to store in any water year above Stewart Dam, 35,500 acre-feet of Bear River water and no more under this paragraph for use in Utah and Wyoming; and to store in any water year in Idaho or Wyoming on Thomas Fork 1,000 acre-feet of water for use in Idaho. Such additional storage rights shall be subordinate to, and shall not be exercised when the effect thereof will be to impair or interfere with (1) existing direct flow rights for consumptive use in any river division and (2) existing storage rights above Stewart Dam, but shall not be subordinate to any right to store water in Bear Lake or elsewhere below Stewart Dam. One-half of the 35,500 acre-feet of additional storage right above Stewart Dam so granted to Utah and Wyoming is hereby allocated to Utah, and the remaining one-half thereof is allocated to Wyoming. B. In addition to the rights defined in paragraph A. of this article, further storage entitlements above Stewart Dam are hereby granted. Wyoming and Utah are granted an additional right to store in any year 70,000 acre-feet of Bear River water for use in Utah and Wyoming to be divided equally; and Idaho is granted an additional right to store 4,500 acre-feet of Bear River water in Wyoming or Idaho for use in Idaho. Water rights granted under this paragraph and water appropriated, including ground water tributary to Bear River, which is applied to beneficial use on or after January 1, 1976, shall not result in an annual increase in depletion of the flow of the Bear River and its tributaries above Stewart Dam of more than 28,000 acre-feet in excess of the depletion as of January 1, 1976. Thirteen thousand (13,000) acre-feet of the additional depletion above Stewart Dam is allocated to each of Utah and Wyoming, and two thousand (2,000) acre-feet is allocated to Idaho. The additional storage rights provided for in this paragraph shall be subordinate

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Appendix B to, and shall not be exercised when the effect thereof will be to impair or interfere with (1) existing direct flow rights for consumptive use in any river division and (2) existing storage rights above Stewart Dam, but shall not be subordinate to any right to store water in Bear Lake or elsewhere below Stewart Dam; provided, however, there shall be no diversion of water to storage above Stewart Dam under this paragraph B. when the water surface elevation of Bear Lake is below 5,911.00 feet, Utah Power & Light Company datum (the equivalent of elevation 5,913.75 feet based on the sea level datum of 1929 through the Pacific Northwest Supplementary Adjustment of 1947). Water depletions permitted under this paragraph B. shall be calculated and administered by a commission-approved procedure.

C. In addition to the rights defined in article VI, paragraphs A. and B., Idaho, Utah and Wyoming are granted the right to store and use water above Stewart Dam that otherwise would be bypassed or released from Bear Lake at times when all other direct flow and storage rights are satisfied. The availability of such water and the operation of reservoir space to store water above Bear Lake under this paragraph shall be determined by a commission-approved procedure. The storage provided for in this paragraph shall be subordinate to all other storage and direct flow rights in the Bear River. Storage rights under this paragraph shall be exercised with equal priority on the following basis: six (6) percent thereof to Idaho; forty-seven (47) percent thereof to Utah; and forty-seven (47) percent thereof to Wyoming. D. The waters of Bear Lake below elevation 5,912.91 feet, Utah Power & Light Company Bear Lake datum (the equivalent of elevation 5915.66 feet based on the sea level datum of 1929 through the Pacific Northwest Supplementary Adjustment of 1947) shall constitute a reserve for irrigation. The water of such reserve shall not be released solely for the generation of power, except in emergency, but after release for irrigation it may be used in generating power if not inconsistent with its use for irrigation. Any water in Bear Lake in excess of that constituting the irrigation reserve may be used for the generation of power or for other beneficial uses. As new reservoir capacity above the Stewart Dam is constructed to provide additional storage pursuant to paragraph A. of this article, the commission shall make a finding in writing as to the quantity of additional storage and shall thereupon make an order increasing the irrigation reserve in accordance with the following table:

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Additional storage (acre-feet) Lake surface elevation 5,000 5,913.24 10,000 5,913.56 15,000 5,913.87 20,000 5,914.15 25,000 5,914.41 30,000 5,914.61 35,500 5,914.69 36,500 5,914.70 Utah Power & Light Company Bear Lake datum E. Subject to existing rights, each state shall have the use of water, including ground water, for ordinary domestic, and stock watering purposes, as determined by state law and shall have the right to impound water for such purposes in reservoirs having storage capacities not in excess, in any case, of 20 acre-feet, without deduction from the allocation made by paragraphs A., B. and C. of this article. F. The storage rights in Bear Lake are hereby recognized and confirmed subject only to the restrictions hereinbefore recited. ARTICLE VII It is the policy of the signatory states to encourage additional projects for the development of the water resources of the Bear River to obtain the maximum beneficial use of water with a minimum of waste, and in furtherance of such policy, authority is granted within the limitations provided by this compact, to investigate, plan, construct, and operate such projects without regard to state boundaries, provided that water rights for each such project shall, except as provided in article VI, paragraphs A. and B. thereof, be subject to rights theretofore initiated and in good standing. ARTICLE VIII A. No state shall deny the right of the United States of America, and subject to the conditions hereinafter contained, no state shall deny the right of another signatory state, any person or entity of another signatory state, to acquire rights to the use of water or to construct or to participate in the construction and use of diversion works and storage reservoirs with appurtenant works, canals, and conduits in one state for use of water in another state, either directly or by exchange. Water rights acquired for out-of-state use shall be appropriated in the state where the point of diversion is located in the manner provided by law for appropriation of water for use within such state.

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Appendix B

B. Any signatory state, any person or any entity of any signatory state, shall have the right to acquire in any other signatory state such property rights as are necessary to the use of water in conformity with this compact by donation, purchase, or, as hereinafter provided through the exercise of the power of eminent domain in accordance with the law of the state in which such property is located. Any signatory state, upon the written request of the governor of any other signatory state for the benefit of whose water users property is to be acquired in the state to which such written request is made, shall proceed expeditiously to acquire the desired property either by purchase at a price acceptable to the requesting governor, or if such purchase cannot be made, then through the exercise of its power of eminent domain and shall convey such property to the requesting state or to the person, or entity designated by its governor provided, that all costs of acquisition and expenses of every kind and nature whatsoever incurred in obtaining such property shall be paid by the requesting state or the person or entity designated by its governor. C. Should any facility be constructed in a signatory state by and for the benefit of another signatory state or persons or entities therein, as above provided, the construction, repair, replacement, maintenance and operation of such facility shall be subject to the laws of the state in which the facility is located. D. In the event lands or other taxable facilities are acquired by a signatory state in another signatory state for the use and benefit of the former, the users of the water made available by such facilities, as a condition precedent to the use thereof, shall pay to the political subdivisions of the state in which such facilities are located, each and every year during which such rights are enjoyed for such purposes, a sum of money equivalent to the average of the amount of taxes annually levied and assessed against the land and improvements thereon during the ten years preceding the acquisition of such land. Said payments shall be in full reimbursement for the loss of taxes in such political subdivision of the state. E. Rights to the use of water acquired under this article shall in all respects be subject to this compact. ARTICLE IX Stored water, or water from another watershed may be turned into the channel of the Bear River in one state and a like quantity, with allowance for loss by evaporation, transpiration, and seepage, may be taken out of the Bear River in another state either above or below the point where the water is turned into the channel, but in making such exchange the replacement water shall not be inferior in quality for the purpose

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used or diminished in quantity. Exchanges shall not be permitted if the effect thereof is to impair vested rights or to cause damage for which no compensation is paid. Water from another watershed or source which enters the Bear River by actions within a state may be claimed exclusively by that state and use thereof by that state shall not be subject to the depletion limitations of articles IV, V and VI. Proof of any claimed increase in flow shall be the burden of the state making such claim, and it shall be approved only by the unanimous vote of the commission. ARTICLE X A. The following rights to the use of Bear River water carried in interstate canals are recognized and confirmed. Date of Primary right—Lands irrigated Name of canal Hilliard East Fork Chapman Chapman Chapman Chapman Chapman Chapman Chapman Francis Lee Francis Lee

Priority 1914 8–13–86 8–13–86 4–12–12 5–4–12 5–21–12 2–6–13 8–28–05 1879 1879

Second feet Acres 28.00 2,644 16.46 1,155 98.46 6,892 0.57 40 4.07 285 10.17 712 0.79 55 * 134.00 2.20 154 7.41 519

State Wyoming Wyoming Utah Wyoming Utah Utah Wyoming Wyoming Utah

Under the right as herein confirmed not to exceed 134 second-feet may be carried across the Wyoming-Utah state line in the Chapman Canal at any time for filling the Neponset Reservoir, for irrigation of land in Utah and for other purposes. The storage right in Neponset Reservoir is for 6,900 acre-feet which is a component part of the irrigation right for the Utah lands listed above. All other rights to the use of water carried in interstate canals and ditches, as adjudicated in the state in which the point of diversion is located, are recognized and confirmed. *

B. All interstate rights shall be administered by the state in which the point of diversion is located and during times of water emergency, such rights shall be filled from the allocations specified in article IV hereof for the section in which the point of diversion is located, with the exception that the diversion of water into the Hilliard East Fork Canal, Lannon Canal, Lone Mountain Ditch, and Hilliard West Side Canal shall be under the administration of Wyoming. During times of water emergency these canals and the Lone Mountain Ditch

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Appendix B shall be supplied from the allocation specified in article IV for the Upper Wyoming section diversions. .

ARTICLE XI Applications for appropriation, for change of point of diversion, place and nature of use, and for exchange of Bear River water shall be considered and acted upon in accordance with the law of the state in which the point of diversion is located, but no such application shall be approved if the effect thereof will be to deprive any water user in another state of water to which he is entitled, nor shall any such application be approved if the effect thereof will be an increase in the depletion of the flow of the Bear River and its tributaries beyond the limits authorized in each state in articles IV, V and VI of this compact. The official of each state in charge of water administration shall, at intervals and in the format established by the commission, report on the status of use of the respective allocations. ARTICLE XII Nothing in this compact shall be construed to prevent the United States, a signatory state or political subdivision thereof, person, corporation, or association, from instituting or maintaining any action or proceeding, legal or equitable, for the protection of any right under state or federal law or under this compact. ARTICLE XIII Nothing contained in this compact shall be deemed: 1. To affect the obligations of the United States of America to the Indian tribes; 2. To impair, extend or otherwise affect any right or power of the United States, its agencies or instrumentalities involved herein; nor the capacity of the United States to hold or acquire additional rights to the use of the water of the Bear River; 3. To subject any property or rights of the United States to the laws of the states which were not subject thereto prior to the date of this compact; 4. To subject any property of the United States to taxation by the states or any subdivision thereof, nor to obligate the United States to pay any state or subdivision thereof for loss of taxes. ARTICLE XIV At intervals not exceeding twenty years, the commission shall review the provisions hereof, and after notice and public hearing, may propose amendments to any such provision, provided, however, that the provisions contained herein shall remain

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in full force and effect until such proposed amendments have been ratified by the legislatures of the signatory states and consented to by congress. ARTICLE XV This compact may be terminated at any time by the unanimous agreement of the signatory states. In the event of such termination all rights established under it shall continue unimpaired. ARTICLE XVI Should a court of competent jurisdiction hold any part of this compact to be contrary to the constitution of any signatory state or to the constitution of the United States, all other severable provisions of this compact shall continue in full force and effect. ARTICLE XVII This compact shall be in effect when it shall have been ratified by the legislature of each signatory state and consented to by the congress of the United States of America. Notice of ratification by the legislature of the signatory states shall be given by the governor of each signatory state to the governor of each of the other signatory states and to the president of the United States of America, and the president is hereby requested to give notice to the governor of each of the signatory states of approval by the congress of the United States of America. IN WITNESS WHEREOF, the commissioners and their advisers have executed this compact in five originals, one of which shall be deposited with the general services administration of the United States of America, one of which shall be forwarded to the governor of each of the signatory states, and one of which shall be made a part of the permanent records of the Bear River commission. Done at Salt Lake City, Utah, this 22nd day of December 1978.

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Appendix B

Appendix B-8: Belle Fourche River Compact Public Law No. 78–236 58 Statutes at Large 94 (1944)

PURPOSE (a) The major purposes of this compact are to provide for the most efficient use of the waters of the Belle Fourche River basin hereinafter referred to as the basin for multiple purposes; to provide for an equitable division of such waters; to remove all causes, present and future, which might lead to controversies; to promote interstate comity; to recognize that the most efficient utilization of the waters within the basin is required for the full development of the basin; and to promote joint action by the states and the United States in the efficient use of water and the control of floods. (b) The physical and other conditions peculiar to the basin constitute the basis for this compact; and none of the states hereby, nor the congress of the United States by its consent, concedes that this compact establishes any general principle or precedent with respect to any other interstate stream. (c) Either state and all others using, claiming or in any manner asserting any right to the use of the waters of the Belle Fourche River under the authority of that state, shall be subject to the terms of this compact. DEFINITIONS (a) As used in this compact: (i) The term “Belle Fourche River” shall mean and include the Belle Fourche River and all its tributaries originating in Wyoming; (ii) The term “basin” shall mean that area in South Dakota and Wyoming which is naturally drained by the Belle Fourche River, and all its tributaries; (iii) The term “beneficial use” is herein defined to be that use by which the water supply of a drainage basin is depleted when usefully employed by the activities of man, and includes water lost by evaporation, and other natural causes from streams, canals, ditches, irrigated areas, and reservoirs; (iv) Where the name of the state or the term “state” or “states” is used, these shall be construed to include any person or entity of any nature whatsoever using, claiming, or in any manner asserting any right to the use of the waters of the Belle Fourche River under the authority of that state.

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ADMINISTRATION (a) It shall be the duty of the two (2) states to administer this compact through the official in each state who is now or may hereafter be charged with the duty of administering the public water supplies, and to collect and correlate through such officials the data necessary for the proper administration of the provisions of this compact. Such officials may, by unanimous action, adopt rules and regulations consistent with the provisions of this compact. (b) The United States geological survey, or whatever federal agency may succeed to the functions and duties of that agency, insofar as this compact is concerned, shall collaborate with the officials of the states charged with the administration of this compact in the execution of the duty of such officials in the collection, correlation, and publication of information necessary for the proper administration of this compact. WATER GAUGING STATIONS Each state shall itself or in conjunction with other responsible agencies cause to be established, maintained, and operated such suitable water gauging stations as it finds necessary to administer this compact. ALLOCATION OF WATERS (a) Wyoming and South Dakota agree that the unappropriated waters of the Belle Fourche River as of the date of this compact shall be allocated to each state as follows: Ninety percent (90%) to South Dakota, ten percent (10%) to Wyoming; provided, that allocations to Wyoming shall be exclusive of the use of these waters for domestic and stock use, and Wyoming shall be allowed unrestricted use for these purposes, except that no reservoir for such use shall exceed twenty (20) acre-feet in capacity. For storage of its allocated water, Wyoming shall have the privilege of purchasing at cost not to exceed ten percent (10%) of the total storage capacity for any reservoir or reservoirs constructed in Wyoming for irrigation of lands in South Dakota, or may construct reservoirs itself for the purpose of utilizing such water. Either state may temporarily divert, or store for beneficial use, any unused part of the above percentages allotted to the other, but no continuing right shall be established thereby. (b) Rights to the use of the waters of the Belle Fourche River, whether based on direct diversion or storage, are hereby recognized as of the date of this compact to the extent these rights are valid under the law of the state in which the use is made, and shall remain unimpaired hereby. These rights, together with the additional allocations made under (a) of this section, are agreed to be an equitable apportionment between the states of the waters of the basin.

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(c) The waters allocated under subsection (a) of this section and the rights recognized under subsection (b) of this section are hereinafter referred to collectively as the apportioned water. For the purposes of the administration of this compact and determining the apportioned water at any given date within a given calendar year, there shall be taken the sum of: (i) The quantity of water in acre-feet that passed the Wyoming-South Dakota state line during the period from January 1 of that year to that given date; (ii) The quantity of water in acre-feet in storage on that date in all reservoirs built in Wyoming on the Belle Fourche River subsequent to the date of this compact. ACQUISITION OF PROPERTY IN ANOTHER STATE Any person, entity, or state shall have the right to acquire necessary property rights in another state by purchase or through the exercise of the power of eminent domain for the construction, operation and maintenance of storage reservoirs and of appurtenant works, canals, and conduits required for the enjoyment of the privileges granted by [state law]; provided, however, that the grantees of such rights shall pay to the political subdivisions of the state in which such works are located, each and every year during which such rights are enjoyed for such purposes, a sum of money equivalent to the average annual amount of taxes assessed against the lands and improvements thereon during the ten (10) years preceding the use of such lands in reimbursement for the loss of taxes to said political subdivisions of the state. CONSTRUCTION AND USE OF DAMS; CLAIMS FOR STORAGE OR DIVERSION; APPROPRIATIONS (a) Either state shall have the right, by compliance with the laws of the other state, to file applications for and receive permits to construct or participate in the construction and use of any dam, storage reservoir, or diversion works in such state for the purpose of conserving and regulating the apportioned water of the other state; provided, that such right is subject to the rights of the other state to control, regulate, and use water apportioned to it. (b) Each claim hereafter initiated for storage or diversion of water in one (1) state for use in another state shall be filed in the office of the state engineer of the state in which the water is to be stored or diverted, and a duplicate copy of the application including a map showing the character and location of the proposed facilities and the lands to be irrigated shall be filed in the office of the state engineer of the state in which the water is to be used. If a portion or all the lands proposed to be reclaimed are located in a state other than the one (1) in which the water is to be restored or diverted, then, before approval

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of the application shall be granted, said application shall be checked against the records of the appropriate office of the state in which the water is to be used, and a notation shall be placed thereon by the officer in charge of such records to the effect that the land description does not indicate a conflict with existing water rights. All endorsements shall be placed on both the original and duplicate copies of all such maps filed to the end that the records in both states may be complete and identical. (c) Appropriations may hereafter be adjudicated in the state in which the water is stored or diverted, and where a portion or all the lands irrigated are in the other state, such adjudications shall be confirmed in the latter state by the proper authority. Each adjudication is to conform with the laws of the state where the water is stored or diverted and shall be recorded in the county and state where the water is used. WATER FOR STOCK WATER USE IN SOUTH DAKOTA In case any reservoir is constructed in Wyoming to be used principally for irrigation of lands in South Dakota, sufficient water not to exceed ten (10) cubic feet per second shall be released at all times for stock water use. SIZE OF RESERVOIRS No reservoir hereafter built solely to utilize the water allocated to Wyoming shall have a capacity in excess of one thousand (1,000) acre-feet. DURATION OF COMPACT The provisions of this compact shall remain in full force and effect until amended by action of the legislature of the states and consented to and approved by the congress of the United States in the same manner as this compact is required to be ratified to become effective. TERMINATION OF COMPACT This compact may be terminated at any time by unanimous consent of the states, and upon such termination, all rights then established hereunder or recognized hereby shall continue to be recognized as valid by the states notwithstanding the termination of the other provisions of the compact. RIGHTS OF ACTION PRESERVED Nothing in this compact shall be construed to limit or prevent either state from instituting or maintaining any action or proceeding, legal or equitable, in any federal court or the United States supreme court for the protection of any right under this compact or the enforcement of any of its provisions.

176

Appendix B

APPLICATION OF COMPACT (a) Nothing in this compact shall be deemed: (i) To impair or affect any rights or powers of the United States, its agencies, or instrumentalities, in and to the use of the waters of the Belle Fourche River nor its capacity to acquire rights in and to the use of said waters; (ii) To subject any property of the United States, its agencies, or instrumentalities to taxation by either state or subdivision thereof, or to create an obligation on the part of the United States, its agencies, or instrumentalities, by reason of the acquisition, construction or operation of any property or works of whatsoever kind, to make any payments to any state or political subdivision thereof, state agency, municipality, or entity whatsoever in reimbursement for the loss of taxes; (iii) To subject any property of the United States, its agencies, or instrumentalities, to the laws of any state to an extent other than the extent to which these laws would apply without regard to the compact. WHEN COMPACT BECOMES OPERATIVE (a) This compact shall become operative when approved by the legislature of each of the states, and when consented to by the congress of the United States by legislation providing, among other things, that: (i) Any beneficial uses hereafter made by the United States, or those acting by or under its authority, within a state, of the waters allocated by this compact, shall be within the allocations hereinabove made for use in that state and shall be taken into account in determining the extent of use within that state; (ii) The United States, or those acting by or under its authority, in the exercise of rights or powers arising from whatever jurisdiction the United States has in, over and to the waters of the Belle Fourche River and all its tributaries, shall recognize, to the extent consistent with the best utilization of the waters for multiple purposes, that beneficial use of the waters within the basin is of paramount importance to development of the basin, and no exercise of such power or right thereby that would interfere with the full beneficial use of the waters shall be made except upon a determination, giving due consideration to the objectives of this compact and after consultation with all interested federal agencies and the state officials charged with the administration of this compact, that such exercise is in the interest of the best utilization of such waters for multiple purposes;

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(iii) The United States, or those acting by or under its authority, will recognize any established use, for domestic and irrigation purposes, of the apportioned waters which may be impaired by the exercise of federal jurisdiction in, over, and to such waters; provided, that such use is being exercised beneficially, is valid under the laws of the appropriate state and in conformity with this compact at the time of the impairment thereof, and was validly initiated under state law prior to the initiation or authorization of the federal program or project which causes such impairment. SEVERABILITY OF PROVISIONS Should a court of competent jurisdiction hold any part of this compact to be contrary to the constitution of any state or of the United States, all other severable provisions shall continue in full force and effect.

178

Appendix B

Appendix B-9: Canadian River Compact

Public Law No. 82–345 66 Statutes at Large 74 (1952) The State of New Mexico, the State of Texas, and the State of Oklahoma, acting through their Commissioners, John H. Bliss for the State of New Mexico, E.V. Spence for the State of Texas, and Clarence Burch for the State of Oklahoma, after negotiations participated in by Berkeley Johnson, appointed by the President as the representative of the United States of America, have agreed respecting Canadian River as follows: ARTICLE I The major purposes of this Compact are to promote interstate comity; to remove causes of present and future controversy; to make secure and protect present developments within the States; and to provide for the construction of additional works for the conservation of the waters of Canadian River. ARTICLE II As used in this Compact: (a) The term “Canadian River” means the tributary of Arkansas River which rises in northeastern New Mexico and flows in an easterly direction through New Mexico, Texas and Oklahoma and includes North Canadian River and all other tributaries of said Canadian River. (b) The term “North Canadian River” means that major tributary of Canadian River officially known as North Canadian River from its source to its junction with Canadian River and includes all tributaries of North Canadian River. (c) The term “Commission” means the agency created by this Compact for the administration thereof. (d) The term “conservation storage” means that portion of the capacity of reservoirs available for the storage of water for subsequent release for domestic, municipal, irrigation and industrial uses, or any of them, and it excludes any portion of the capacity of reservoirs allocated solely to flood control, power production and sediment control, or any of them. ARTICLE III All rights to any of the waters of Canadian River which have been perfected by beneficial use are hereby recognized and affirmed.

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ARTICLE IV (a) New Mexico shall have free and unrestricted use of all waters originating in the drainage basin of Canadian River above Conchas Dam. (b) New Mexico shall have free and unrestricted use of all waters originating in the drainage basin of Canadian River in New Mexico below Conchas Dam, provided that the amount of conservation storage in New Mexico available for impounding these waters which originate in the drainage basin of Canadian River below Conchas Dam shall be limited to an aggregate of two hundred thousand (200,000) acre-feet. (c) The right of New Mexico to provide conservation storage in the drainage basin of North Canadian River shall be limited to the storage of such water as at the time may be unappropriated under the laws of New Mexico and of Oklahoma. ARTICLE V Texas shall have free and unrestricted use of all waters of Canadian River in Texas, subject to the limitations upon storage of water set forth below: (a) The right of Texas to impound any of the waters of North Canadian River shall be limited to storage on tributaries of said River in Texas for municipal uses, for household and domestic uses, livestock watering, and the irrigation of lands which are cultivated solely for the purpose of providing food and feed for the householders and domestic livestock actually living or kept on the property. (b) Until more than three hundred thousand (300,000) acre-feet of conservation storage shall be provided in Oklahoma, exclusive of reservoirs in the drainage basin of North Canadian River and exclusive of reservoirs in the drainage basin of Canadian River east of the 97th meridian, the right of Texas to retain water in conservation storage, exclusive of waters of North Canadian River, shall be limited to five hundred thousand (500,000) acre-feet; thereafter the right of Texas to impound and retain such waters in storage shall be limited to an aggregate quantity equal to two hundred thousand (200,000) acre-feet plus whatever amount of water shall be at the same time in conservation storage in reservoirs in the drainage basin of Canadian River in Oklahoma, exclusive of reservoirs in the drainage basin of North Canadian River and exclusive of reservoirs east of the 97th meridian; and for the purpose of determining the amount of water in conservation storage, the maximum quantity of water in storage following each flood or series of floods shall be used; provided, that the right of Texas to retain and use any quantity of water

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Appendix B previously impounded shall not be reduced by any subsequent application of the provisions of this paragraph (b).

(c) Should Texas for any reason impound any amount of water greater than the aggregate quantity specified in paragraph (b) of this Article, such excess shall be retained in storage until under the provisions of said paragraph Texas shall become entitled to its use; provided, that, in event of spill from conservation storage, any such excess shall be reduced by the amount of such spill from the most easterly reservoir on Canadian River in Texas; provided further, that all such excess quantities in storage shall be reduced monthly to compensate for reservoir losses in proportion to the total amount of water in the reservoir or reservoirs in which such excess water is being held; and provided further that on demand by the Commissioner for Oklahoma the remainder of any such excess quantity of water in storage shall be released into the channel of Canadian River at the greatest rate practicable. ARTICLE VI Oklahoma shall have free and unrestricted use of all waters of Canadian River in Oklahoma. ARTICLE VII The Commission may permit New Mexico to impound more water than the amount set forth in Article IV and may permit Texas to impound more water than the amount set forth in Article V; provided, that no State shall thereby be deprived of water needed for beneficial use; provided further that each such permission shall be for a limited period not exceeding twelve (12) months; and provided further that no State or user of water within any State shall thereby acquire any right to the continued use of any such quantity of water so permitted to be impounded. ARTICLE VIII Each State shall furnish to the Commission at intervals designated by the Commission accurate records of the quantities of water stored in reservoirs pertinent to the administration of this Compact. ARTICLE IX (a) There is hereby created an interstate administrative agency to be known as the “Canadian River Commission.” The Commission shall be composed of three (3) Commissioners, one (1) from each of the signatory States, designated or appointed in accordance with the laws of each such State, and if designated by the President an additional Commissioner representing the United States. The President is hereby requested to designate such a Commissioner.

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If so designated, the Commissioner representing the United States shall be the presiding officer of the Commission, but shall not have the right to vote in any of the deliberations of the Commission. All members of the Commission must be present to constitute a quorum. A unanimous vote of the Commissioners for the three (3) signatory States shall be necessary to all actions taken by the Commission. (b) The salaries and personal expenses of each Commissioner shall be paid by the government which he represents. All other expenses which are incurred by the Commission incident to the administration of this Compact and which are not paid by the United States shall be borne equally by the three (3) States and be paid by the Commission out of a revolving fund hereby created to be known as the “Canadian River Revolving Fund.” Such fund shall be initiated and maintained by equal payments of each State into the fund in such amounts as will be necessary for administration of this Compact. Disbursements shall be made from said fund in such manner as may be authorized by the Commission. Said fund shall not be subject to the audit and accounting procedures of the States. However, all receipts and disbursements of funds handled by the Commission shall be audited by a qualified independent public accountant at regular intervals and the report of the audit shall be included in and become a part of the annual report of the Commission. (c) The Commission may: (1) Employ such engineering, legal, clerical, and other personnel as in its judgment may be necessary for the performance of its functions under this Compact; (2) Enter into contracts with appropriate Federal agencies for the collection, correlation, and presentation of factual data, for the maintenance of records, and for the preparation of reports; (3) Perform all functions required of it by this Compact and do all things necessary, proper, or convenient in the performance of its duties hereunder, independently or in cooperation with appropriate governmental agencies. (d) The Commission shall: (1) Cause to be established, maintained and operated such stream and other gaging stations and evaporation stations as may from time to time be necessary for proper administration of the Compact, independently or in cooperation with appropriate governmental agencies; (2) Make and transmit to the Governors of the signatory States on or before the last day of March of each year, a report covering the activities of the Commission for the preceding year;

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(3) Make available to the Governor of any signatory state, on his request, any information within its possession at any time, and shall always provide access to its records by the Governors of the States, or their representatives, or by authorized representatives of the United States. ARTICLE X Nothing in this Compact shall be construed as: (a) Affecting the obligations of the United States to the Indian Tribes; (b) Subjecting any property of the United States, its agencies or instrumentalities, to taxation by any State or subdivision thereof, or creating any obligation on the part of the United States, its agencies or instrumentalities, by reason of the acquisition, construction or operation of any property or works of whatever kind, to make any payment to any State or political subdivision thereof, state agency, municipality or entity whatsoever, in reimbursement for the loss of taxes; (c) Subjecting any property of the United States, its agencies or instrumentalities, to the laws of any State to an extent other than the extent to which such laws would apply without regard to this Compact; (d) Applying to, or interfering with, the right or power of any signatory State to regulate within its boundaries the appropriation, use and control of water, not inconsistent with its obligations under this Compact; (e) Establishing any general principle or precedent applicable to other interstate streams. ARTICLE XI This Compact shall become binding and obligatory when it shall have been ratified by the Legislature of each State and approved by the Congress of the United States. Notice of ratification by the Legislature of each State shall be given by the Governor of that State to the Governors of the other States and to the President of the United States. The President is hereby requested to give notice to the Governor of each State of approval by the Congress of the United States. IN WITNESS WHEREOF, The Commissioners have executed four (4) counterparts hereof, each of which shall be and constitute an original, one (1) of which shall be deposited in the archives of the Department of State of the United States, and (1) of which shall be forwarded to the Governor of each State. DONE at the City of Santa Fe, State of New Mexico, this 6th day of December, 1950.

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Appendix B-10: Chesapeake Bay Commission Agreement

Code of Virginia, § 62.1–69.5 to § 62.1–69.20 (1980) COMMISSION CREATED The Chesapeake Bay Commission, hereinafter designated as “Commission,” is hereby created. MEMBERS The Commission shall consist of twenty-one members, seven from Virginia, seven from Maryland and seven from Pennsylvania. In each state, five of the members shall be members of the General Assembly. In Maryland, two senators designated by the president of the senate and three delegates designated by the speaker of the house shall serve as members. The governor of Maryland or his designee shall serve as a member. In addition, the president of the senate and the speaker of the house of delegates shall jointly select one Maryland member who is not a legislator or an employee of the executive branch. In Virginia, two Senators designated by the Senate Committee on Privileges and Elections and three Delegates designated by the Speaker of the House of Delegates shall serve as members. The Governor of Virginia or his designee shall serve as a member. In addition, the Senate Committee on Privileges and Elections and the Speaker of the House of Delegates shall jointly select one Virginia member who is not a legislator or an employee of the executive branch. In Pennsylvania, two senators designated by the president pro tempore of the senate and three representatives designated by the speaker of the house of representatives shall serve as members. The governor of Pennsylvania or his designee shall serve as a member. In addition, the president pro tempore of the senate shall select one Pennsylvania member who is not a legislator or an employee of the executive branch. TERM Legislators serving as members of the Commission shall serve terms coterminous with their current terms of office. The nonlegislative members shall serve at the pleasure of their respective appointing authorities for a term of not more than four years. Nonlegislative members may be reappointed at the end of the four-year term. COMPENSATION The Commission members shall serve without compensation from the Commission but may be reimbursed by the Commission for necessary expenses incurred in and incident to the performance of their duties. In addition, Commission members from each state may receive from their respective states, any other compensation to which they may be entitled under the laws of the respective states.

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MEETINGS AND VOTING Commission meetings shall be held at least once each quarter, and at such other times as the Commission may determine. In order to constitute a quorum for the transaction of any business, at least eleven Commission members, including at least three Commission members from each state, must be present. Approval of proposed action shall require the majority vote of the Commission members present. ORGANIZATION, INTERNAL PROCEDURES AND DELEGATION OF POWERS; OFFICERS AND EMPLOYEES AS STATE EMPLOYEES A. The Commission members shall serve as the governing body of the Commission, and, except as hereinafter provided, shall exercise and discharge all powers, functions and responsibilities assigned to the Commission. The Commission shall provide for the organization of internal procedures of the Commission and to this end shall adopt suitable bylaws. The Commission shall have a chairman and two vice-chairmen, chosen by the respective delegation, whose offices shall rotate annually among the signatory states and may at no time be held by members from the same signatory. The Commission may maintain one or more offices for the transaction of its business. The Commission may, without regard to the civil service or the laws of any signatory relative to public officers and employees, create and abolish offices, employments and positions as it deems necessary for the purposes of the Commission, affix and provide for the duties, conditions of employment, qualifications, appointment, removal, term, compensation, and other rights and benefits of the Commission’s officers and employees, and shall appoint the principal officers of the Commission and allocate among them administrative functions, powers, and duties. The Commission may delegate to the officers and employees of the Commission any powers, functions and responsibilities under this agreement as it deems suitable, except that it may not delegate its power to make recommendations to the respective legislatures, to issue reports or to adopt the annual expense budget. B. Every full-time officer or employee of the Commission on a salary basis shall be eligible for pension and health and related insurance offered to employees of one of the member states, provided that such officer or employee so elects within thirty days of commencing employment; and provided that the Commission allocates funds in its budget for the employer share of these benefits. PURPOSES The purposes of the signatories in enacting this Agreement are to assist the legislatures of Maryland, Virginia and Pennsylvania in evaluating and responding to

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problems of mutual concern relating to the Chesapeake Bay; to promote intergovernmental cooperation; to encourage cooperative coordinated resource planning and action by the signatories and their agencies; to provide, where appropriate, through recommendation to the respective legislature, uniformity of legislative application; to preserve and enhance the functions, powers and duties of existing offices and agencies of government; and to recommend improvements in the existing management system for the benefit of the present and future inhabitants of the Chesapeake Bay region. POWERS In pursuit of the purposes and duties set forth in this article, the Commission may exercise the following powers: 1. The Commission may collect, compile, analyze, interpret, coordinate, tabulate, summarize, and distribute technical and other data relative to the Chesapeake Bay and its environs. It may conduct or contract for studies, except those for primary scientific research, and may prepare reports on existing or potential problems within the Bay region. 2. The Commission may prepare, publish and disseminate information in reports related to the resources of the region. 3. The Commission may serve as an advisory board to any requesting agency of the member states on matters of interstate concern. 4. The Commission may make application for grants, services or other aids as may be available from public or private sources to finance or assist in effectuating any purposes of this Agreement; and receive and accept the same on such terms and conditions as may be required by the law of the respective signatory states. 5. The Commission may purchase administrative supplies and may lease sufficient office space if such space is not otherwise made available for its use. 6. The Commission may exercise such other powers as are granted by this Agreement and take such actions as are necessary or appropriate for performing the duties set forth in this Agreement. DUTIES In carrying out the purposes set forth in this article, the Commission shall have the following duties: 1. The Commission shall (i) identify specific Bay management concerns requiring intergovernmental coordination and cooperation; and (ii) recommend to the federal, state and local governments which are involved in the Chesapeake

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2. In administering the provisions of this Agreement the Commission shall consider the needs of the region for industrial and agricultural development and for gainful employment and maintenance of a high quality environment. 3. The Commission shall respect and support the primary role of the respective signatory states and their administrative agencies in managing the resources of the region. 4. The Commission shall collect, analyze and disseminate information pertaining to the region and its resources for the respective legislative bodies. The Commission shall prepare an annual report indicating the status of environmental and economic Bay issues involving the Chesapeake Bay and the progress of coordinative efforts by the member states. 5. The Commission shall represent common interests of the signatories as they are affected by the activities of the federal government and shall assist in the monitoring of those activities in the Chesapeake Bay region. 6. The Commission may provide a forum to serve as an advisory mediator for programmatic conflicts between or among the member states when such action is requested by the conflicting member states. ANNUAL BUDGET The Commission shall annually adopt a budget, which shall include the Commission’s estimated expenses for administration and operation. In establishing the annual current expense budget, the Commission shall balance total expenses against the Commission’s estimate of revenues from all sources, either previously appropriated by a signatory state or receivable from any person or governmental agency by contract or grant with that person or governmental agency. The chairman of the Commission shall certify to the respective signatories, and submit to persons in other governmental agencies, statements of the amounts requested from them in accordance with existing cost-sharing established by this Agreement or by the parties. The chairman of the Commission shall transmit certified copies of such budgets to the principal budget officer of the respective signatory parties at such time and in such manner as may be required under their respective budgetary procedures. APPORTIONMENT OF COST The amount required for the Commission’s current expense budget shall be apportioned equally among the signatory parties unless a different apportionment is agreed to by unanimous vote of the Commission.

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BUDGET FOR 1985–86 The current expense budget for the 1985–86 fiscal year shall be $225,000, to be equally apportioned among the respective signatory states. MODIFICATION This Agreement shall not be amended or modified except with the concurrence of the legislatures of the state of Maryland, the Commonwealth of Virginia and the commonwealth of Pennsylvania. Amendments shall not become effective until adopted in the same manner as the original Agreement. TERM The duration of this Agreement among the state of Maryland, the Commonwealth of Virginia, and the commonwealth of Pennsylvania shall be for an initial period of ten years from its effective date, and it shall be continued for additional periods of ten years unless one or more of the signatory states, by authority of an act of its legislature, notifies the Commission of intention to terminate the Agreement at the end of the current ten-year term. However, any signatory, by act of its legislature, can withdraw from the Agreement at the end of any calendar year or fiscal year. DISSOLUTION In the event that this Agreement shall be terminated [as provided above], the Commission shall be dissolved, its assets and liabilities transferred, and its corporate affairs wound up in accordance with the unanimous agreement of its signatories, or failing unanimous agreement, in such manner that the assets and liabilities of the Commission shall be shared by the respective states.

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Appendix B-11: Colorado River Compact 70 Congressional Record 324 (1928) 45 Statutes at Large 1057 (1928)

ARTICLE I The major purposes of this compact are to provide for the equitable division and apportionment of the use of the waters of the Colorado River system; to establish the relative importance of different beneficial uses of water; to promote interstate comity; to remove causes of present and future controversies; and to secure the expeditious agricultural and industrial development of the Colorado River basin, the storage of its waters and the protection of life and property from floods. To these ends the Colorado River basin is divided into two basins, and an apportionment of the use of part of the water of the Colorado River system is made to each of them with the provision that further equitable apportionments may be made. ARTICLE II (a) As used in this compact: (i) The term “Colorado River system” means that portion of the Colorado River and its tributaries within the United States of America; (ii) The term “Colorado River basin” means all of the drainage area of the Colorado River System, and all other territory within the United States of America to which the waters of the Colorado River system shall be beneficially applied; (iii) The term “states of the upper division” means the states of Colorado, New Mexico, Utah and Wyoming; (iv) The term “states of the lower division” means the states of Arizona, California and Nevada; (v) The term “Lee Ferry” means a point in the main stream of Colorado River one mile below the mouth of the Paria River; (vi) The term “upper basin” means those parts of the states of Arizona, Colorado, New Mexico, Utah and Wyoming within and from which waters naturally drain into the Colorado River system above Lee Ferry, and also all parts of said states located without the drainage area of the Colorado River system which are now or shall hereafter be beneficially served by waters diverted from the system above Lee Ferry;

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(vii) The term “lower basin” means those parts of the states of Arizona, California, Nevada, New Mexico and Utah within and from which waters naturally drain into the Colorado River system below Lee Ferry, and also all parts of said states located without the drainage area of the Colorado River system which are now or shall hereafter be beneficially served by waters diverted from the system below Lee Ferry; (viii) The term “domestic use” shall include the use of water for household, stock, municipal, mining, milling, industrial and other like purposes, but shall exclude the generation of electrical power. ARTICLE III (a) There is hereby apportioned from the Colorado River system in perpetuity to the upper basin and to the lower basin respectively the exclusive beneficial consumptive use of seven million five hundred thousand (7,500,000) acre-feet of water per annum, which shall include all water necessary for the supply of any rights which may not exist. (b) In addition to the apportionment in paragraph (a), the lower basin is hereby given the right to increase its beneficial consumptive use of such waters by one million (1,000,000) acre-feet per annum. (c) If, as a matter of international comity, the United States of America shall hereafter recognize in the United States of Mexico any right to the use of any waters of the Colorado River system, such waters shall be supplied first from the waters which are surplus over and above the aggregate of the quantities specified in paragraphs (a) and (b); and if such surplus shall prove insufficient for this purpose, then, the burden of such deficiency shall be equally borne by the upper basin and the lower basin, and whenever necessary the states of the upper division shall deliver at Lee Ferry water to supply one-half of the deficiency so recognized in addition to that provided in paragraph (d). (d) The states of the upper division will not cause the flow of the river at Lee Ferry to be depleted below an aggregate of seventy-five million (75,000,000) acrefeet for any period of ten (10) consecutive years reckoned in continuing progressive series, beginning with the first day of October next succeeding the ratification of this compact. (e) The states of the upper division shall not withhold water, and the states of the lower division shall not require the delivery of water, which cannot reasonably be applied to domestic and agricultural uses.

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(f) Further equitable apportionment of the beneficial uses of the waters of the Colorado River system unapportioned by paragraphs (a), (b) and (c) may be made in the manner provided in paragraph (g) at any time after October first, 1963, if and when either basin shall have reached its total beneficial consumptive use as set out in paragraphs (a) and (b). (g) In the event of a desire for a further apportionment as provided in paragraph (f) any two (2) signatory states, acting through their governors, may give joint notice of such desire to the governors of the other signatory states and to the president of the United States of America, and it shall be the duty of the governors of the signatory states and of the president of the United States of America forthwith to appoint representatives, whose duty it shall be to divide and apportion equitably between the upper basin and lower basin the beneficial use of the unapportioned water of the Colorado River System as mentioned in paragraph (f), subject to the legislative ratification of the signatory states and the congress of the United States of America. ARTICLE IV (a) Inasmuch as the Colorado River has ceased to be navigable for commerce and the reservation of its waters for navigation would seriously limit the development of its basin, the use of its waters for purposes of navigation shall be subservient to the uses of such waters for domestic, agricultural and power purposes. If the congress shall not consent to this paragraph, the other provisions of this compact shall nevertheless remain binding. (b) Subject to the provisions of this compact, water of the Colorado River system may be impounded and used for the generation of electrical power, but such impounding and use shall be subservient to the use and consumption of such water for agricultural and domestic purposes and shall not interfere with or prevent use for such dominant purposes. (c) The provisions of this article shall not apply to or interfere with the regulation and control by any state within its boundaries of the appropriation, use and distribution of water.

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ARTICLE V (a) The chief official of each signatory state charged with the administration of water rights, together with the director of the United States reclamation service and the director of the United States geological survey shall cooperate, ex officio: (i) To promote the systematic determination and coordination of the facts as to flow, appropriation, consumption and use of water in the Colorado River basin, and the interchange of available information in such matters. (ii) To secure the ascertainment and publication of the annual flow of the Colorado River at Lee Ferry. (iii) To perform such other duties as may be assigned by mutual consent of the signatories from time to time. ARTICLE VI (a) Should any claim or controversy arise between any two (2) or more of the signatory states: (i) with respect to the waters of the Colorado River system not covered by the terms of this compact; (ii) over the meaning or performance of any of the terms of this compact; (iii) as to the allocation of the burdens incident to the performance of any article of this compact or the delivery of waters as herein provided; (iv) as to the construction or operation of works within the Colorado River basin to be situated in two (2) or more states, or to be constructed in one (1) state for the benefit of another state; or (v) as to the diversion of water in one (1) state for the benefit of another state; the governors of the states affected, upon the request of one (1) of them, shall forthwith appoint commissioners with power to consider and adjust such claim or controversy, subject to ratification by the legislatures of the states so affected. (b) Nothing herein contained shall prevent the adjustment of any such claim or controversy by any present method or by direct future legislative action of the interested states. ARTICLE VII Nothing in this compact shall be construed as affecting the obligations of the United States of America to Indian tribes. ARTICLE VIII (a) Present perfected rights to the beneficial use of waters of the Colorado River system are unimpaired by this compact. Whenever storage capacity of five

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Appendix B million (5,000,000) acre-feet shall have been provided on the main Colorado River within or for the benefit of the lower basin, then claims of such rights, if any, by appropriators or users of water in the lower basin against appropriators or users of water in the upper basin shall attach to and be satisfied from water that may be stored not in conflict with article III.

(b) All other rights to beneficial use of waters of the Colorado River system shall be satisfied solely from the water apportioned to that basin in which they are situate. ARTICLE IX Nothing in this compact shall be construed to limit or prevent any state from instituting or maintaining any action or proceeding, legal or equitable, for the protection of any right under this compact or the enforcement of any of its provisions. ARTICLE X This compact may be terminated at any time by the unanimous agreement of the signatory states. In the event of such termination all rights established under it shall continue unimpaired. ARTICLE XI This compact shall become binding and obligatory when it shall have been approved by the legislatures of each of the signatory states and by the congress of the United States. Notice of approval by the legislatures shall be given by the governor of each signatory state to the governors of the other signatory states and to the president of the United States, and the president of the United States is requested to give notice to the governors of the signatory states of approval by the congress of the United States. IN WITNESS WHEREOF, the commissioners have signed this compact in a single original, which shall be deposited in the archives of the department of state of the United States of America and of which a duly certified copy shall be forwarded to the governor of each of the signatory states. Done at the city of Santa Fe, New Mexico, this twenty-fourth day of November, A.D. one thousand nine hundred and twenty-two.

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Appendix B-12: Connecticut River Flood Control Compact Public Law No. 83–52 67 Statutes at Large 45 (1953)

PREAMBLE Whereas, the federal government exercises jurisdiction over the nation’s navigable rivers and their tributaries through passage of the flood control act of nineteen hundred and thirty-six and various other acts amendatory thereto; and Whereas, these acts provide for construction by the United States of dams for flood control and, where feasible, in addition to flood control for storage of water to be used for irrigation, recreation or hydroelectric power or for any of these purposes; and Whereas, the Connecticut is an interstate river and control of major floods on it can be obtained only by the construction of dams by the United States under authorization of the above mentioned acts; and Whereas, the Commonwealth of Massachusetts and the States of Connecticut, New Hampshire and Vermont recognize that it is in the interest of their general welfare that the United States construct in the Connecticut River Valley a comprehensive system of local protection works and dams and reservoirs to control floods and prevent loss of life and property, the disruption of orderly processes and the impairment of commerce between the aforesaid states; and Whereas, the United States has constructed dikes, flood walls and other local protection works at Hartford and East Hartford in the State of Connecticut and at Springfield, Riverdale, West Springfield, Chicopee, Northampton, Holyoke, and Springdale, in the Commonwealth of Massachusetts and dams and reservoirs for the storage of flood waters at Knightville, Birch Hill and Tully in the Commonwealth of Massachusetts, at Surry Mountain in the State of New Hampshire and at Union Village in the State of Vermont and has reached agreements with the state wherein located for construction of dams and reservoirs for the storage of flood waters at Barre Falls in the Commonwealth of Massachusetts and at Ball Mountain and at Townshend in the State of Vermont; and Whereas, the Congress has at various times authorized construction by the United States of other dams and reservoirs for the storage of flood waters in the Commonwealth of Massachusetts and in the States of New Hampshire and Vermont and has more recently instructed the corps of engineers to determine what additional local protection works and dams and reservoirs are required for a comprehensive system to control floods in the Connecticut River and its tributaries; and Whereas, it is believed that such a comprehensive flood control system should include dams and reservoirs controlling flood run-off from approximately

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twenty-five (25) percent of the total drainage area of the Connecticut River above Hartford, Connecticut, and strategically located in reference to characteristics of tributaries and to damage centers; and Whereas, construction by the United States of additional dams and reservoirs in the Commonwealth of Massachusetts and in the States of New Hampshire and Vermont, to complete such a comprehensive flood control system, will remove from the tax rolls of local governments of those states such property as is acquired by the United States and may work other hardships against the people of Massachusetts, New Hampshire and Vermont; and Whereas, it is highly desirable that any flood control dam and reservoir constructed by the United States in the Connecticut River Valley have the approval of the state wherein it is located and that states benefiting from construction of such dam and reservoir make reimbursement for such loss of taxes and for such hardships; and Whereas, a comprehensive system for the prevention of destructive floods and for water resources utilization in the Connecticut River Valley can best be accomplished by cooperation between the several states in the valley and by and through a common and joint agency of said several states; Now, therefore, the said Commonwealth of Massachusetts and States of Connecticut, New Hampshire and Vermont do hereby enter into the following compact, to-wit: ARTICLE I PURPOSES The principal purposes of this compact are: (a) to promote interstate comity among and between the signatory states; (b) to assure adequate storage capacity for impounding the waters of the Connecticut River and its tributaries for the protection of life and property from flood; (c) to provide a joint or common agency through which the signatory states, while promoting, protecting and preserving to each the local interest and sovereignty of the respective signatory states, may more effectively cooperate in accomplishing the object of flood control and water resources utilization in the basin of the Connecticut River and its tributaries. ARTICLE II CREATION OF COMMISSION There is hereby created “The Connecticut River Valley Flood Control Commission,” hereinafter referred to as the “commission,” which shall consist of twelve members, three of whom shall be residents of the Commonwealth of Massachusetts; three of whom shall be residents of the State of Connecticut; three of whom shall be residents of the State of New Hampshire; and three of whom shall be residents of the State of Vermont.

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The members of the commission shall be chosen by their respective states in such manner and for such term as may be fixed and determined from time to time by the law of each of said states respectively by which they are appointed. A member of the commission may be removed or suspended from office as provided by the law of the state for which he shall be appointed, and any vacancy occurring in the commission shall be filled in accordance with the laws of the state wherein such vacancy exists. A majority of the members from each state shall constitute a quorum for the transaction of business, the exercise of any of its powers or the performance of any of its duties, but no action of the commission shall be binding unless at least two of the members from each state shall vote in favor thereof. The compensation of members of the commission shall be fixed, determined, and paid by the state which they respectively represent. All necessary expenses incurred in the performance of their duties shall be paid from the funds of the commission. The commission shall elect from its members a chairman, vice-chairman, clerk and treasurer. Such treasurer shall furnish to the commission, at its expense, a bond with corporate surety, to be approved by the commission, in such amount as the commission may determine, conditioned for the faithful performance of his duties. The commission shall adopt suitable by-laws and shall make such rules and regulations as it may deem advisable not inconsistent with laws of the United States, of the signatory states or with any rules or regulations lawfully promulgated thereunder. The commission shall make an annual report to the governor and legislature of each of the signatory states, setting forth in detail the operations and transactions conducted by it pursuant to this compact. The commission shall keep a record of all its meetings and proceedings, contracts and accounts, and shall maintain a suitable office, where its maps, plans, documents, records and accounts shall be kept, subject to public inspection at such times and under such regulations as the commission shall determine. ARTICLE III POWERS OF COMMISSION The commission shall constitute a body, both corporate and politic, with full power and authority: (1) to sue and be sued; (2) to have a seal and alter the same at pleasure; (3) to appoint and employ such agents and employees as may be required in the proper performance of the duties hereby committed to it and to fix and determine their qualifications, duties and compensation; (4) to enter into such contracts and agreements and to do and perform any and all other acts, matters and things as may be necessary and essential to the full and complete performance of the powers and duties hereby committed to and imposed upon it and as may be

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incidental thereto; (5) to have such additional powers and duties as may hereafter be delegated to or imposed upon it from time to time by the action of the legislature of any of said states, concurred in by the legislatures of the other states and by the Congress of the United States. The commission shall make, or cause to be made, such studies as it may deem necessary, in cooperation with the corps of engineers and other federal agencies, for the development of a comprehensive plan for flood control and for utilization of the water resources of the Connecticut River Valley. The commission shall not pledge the credit of the signatory states or any of them. ARTICLE IV CONSTRUCTION OF DAMS; AGREEMENTS The signatory state wherein is located the site of each of the following dams and reservoirs agrees to the construction by the United States of each such dam and reservoir in accordance with authorization by the Congress: In the Commonwealth of Massachusetts, (1) At Barre Falls on the Ware River controlling a drainage area of approximately fifty-seven (57) square miles and providing flood storage of approximately eight (8) inches of run-off from said drainage area. In the State of Vermont, (1) At West Townshend on the West River controlling a new drainage area of approximately one hundred six (106) square miles and providing flood control storage of approximately six (6) inches of run-off from said drainage area. (2) At Ball Mountain on the West River controlling a net drainage area of approximately one hundred thirty-two (132) square miles and providing flood control storage of approximately six (6) inches of run-off from said drainage area. (3) At North Hartland on the Ottauquechee River controlling a drainage area of approximately two hundred twenty-two (222) square miles and providing flood control storage for approximately six (6) inches of runoff from said drainage area. (4) At Groton Pond on the Wells River controlling a drainage area of approximately seventeen and three tenths (17.3) square miles and providing flood control storage for approximately eight (8) inches of run-off from said drainage area.

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(5) At Victory on the Moose River controlling a drainage area of approximately sixty-six (66) square miles and providing flood control storage for approximately seven (7) inches of run-off from said drainage area. (6) In Bloomfield on the Nulhegan River controlling a drainage area of approximately seventy (70) square miles and providing flood control storage for approximately nine (9) inches of run-off from said drainage area. In the State of New Hampshire, (1) At South Keene on the Otter Brook, tributary of the Ashuelot River, controlling a drainage area of approximately forty-seven (47) square miles and providing flood control storage for approximately seven (7) inches of run-off from said drainage area. (2) At Walpole on the Cold River controlling a drainage area of approximately one hundred one (101) square miles and providing flood control storage for approximately eight (8) inches of run-off from said drainage area. (3) At Bethlehem Junction on the Ammonoosuc River controlling a drainage area of approximately ninety (90) square miles and providing flood control storage for approximately six (6) inches of run-off from said drainage area. (4) At Franconia on the Ammonoosuc River controlling a drainage area of approximately thirty (30) square miles and providing flood control storage for approximately eight (8) inches of run-off from said drainage area. (5) At Swiftwater on the Wild Ammonoosuc River controlling a drainage area of approximately fifty-seven (57) square miles and providing flood control storage for approximately ten (10) inches of run-off from said drainage area. ARTICLE V REIMBURSEMENT FOR ECONOMIC LOSSES The Commonwealth of Massachusetts agrees to reimburse the State of New Hampshire fifty (50) percent and the State of Vermont fifty (50) percent of the amount of taxes lost to their political subdivisions by reason of ownership by the United States of land, rights or other property therein for the flood control dams and reservoirs at Surry Mountain in New Hampshire and at Union Village in Vermont. The State of Connecticut agrees to reimburse the Commonwealth of Massachusetts

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forty (40) percent, the State of New Hampshire forty (40) percent and the State of Vermont forty (40) percent of the amount of taxes lost to their political subdivisions by reason of ownership by the United States of lands, rights or other property therein for the flood control dams and reservoirs at Tully, at Knightville and at Birch Hill in Massachusetts, at Surry Mountain in New Hampshire and at Union Village in Vermont. The Commonwealth of Massachusetts agrees to reimburse the State of New Hampshire fifty (50) percent and the State of Vermont fifty (50) percent of the amount of taxes lost to their political subdivisions by reason of acquisition and ownership by the United States of lands, rights or other property therein for construction in the future of any flood control dam and reservoir specified in Article IV and also for any other flood control dam and reservoir hereafter constructed by the United States in the Connecticut River Valley. The State of Connecticut agrees to reimburse the Commonwealth of Massachusetts forty (40) percent, the State of New Hampshire forty (40) percent and the State of Vermont forty (40) percent of the amount of taxes lost to their political subdivisions by reason of acquisition and ownership by the United States of lands, rights or other property therein for construction in the future of any flood control dam and reservoir specified in Article IV and also for any other flood control dam and reservoir hereafter constructed by the United States in the Connecticut River Valley. Annually, not later than November first of each year, the commission shall determine the loss of taxes resulting to political subdivisions of each signatory state by reason of acquisition and ownership therein by the United States of lands, rights or other property in connection with each flood control dam and reservoir for which provision for tax reimbursement has been made in the four paragraphs next above. Such losses of taxes as determined by the commission shall be based on the tax rate then current in each such political subdivision and on the average assessed valuation for a period of five years prior to the acquisition by the United States of such property, provided that whenever a political subdivision wherein a flood control dam and reservoir or portion thereof is located shall have made a general revaluation of property subject to the annual municipal taxes of such subdivision, the commission may use such revaluation for the purpose of determining the amount of taxes for which reimbursement shall be made. Using the percentage of payment agreed to in said four paragraphs, the commission shall then compute the sum, if any, due from each signatory state to each other signatory state and shall send a notice to the treasurer of each signatory state setting forth in detail the sums, if any, each is to pay to and to receive from each other signatory state in reimbursement of tax losses. Each signatory state on receipt of formal notification from the commission of the sum which it is to pay in reimbursement for tax losses shall, not later than July first of the following year, make its payment for such tax losses to the signatory state

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wherein such loss or losses occur, except that in case of the first annual payment for tax losses at any dam or reservoir such payment shall be made by payor states not later than July first of the year in which the next regular session of its legislature is held. Payment by a signatory state of its share of reimbursement for taxes in accordance with formal notification received from the commission shall be a complete and final discharge of all liability by the payor state to the payee state for each flood control dam and reservoir within the payee state for the time specified in such formal notification. Each payee signatory state shall have full responsibility for distributing or expending all such sums received, and no agency or political subdivision shall have any claim against any signatory state other than the payee state, nor against the commission relative to tax losses covered by such payments. Whenever a state which makes reimbursement for tax losses and a state which received such reimbursement from it shall agree, through the commission, on a lump sum payment in lieu of annual payments and such lump sum payment has been made and received, the requirement that the commission annually shall determine the tax losses, compute sums due from each state and send notice thereof to the treasurer of each state shall no longer apply to the aforesaid states with respect to any flood control dam and reservoir for which lump sum payment has been made and received. The Commonwealth of Massachusetts and the State of Connecticut each agrees to pay its respective share in reimbursement, as determined by the commission under the procedure following, for economic losses and damages occurring by reason of ownership of property by the United States for construction and operation of a flood control dam and reservoir at any site specified in Article IV, and for any other flood control dam and reservoir constructed hereafter by the United States in the Connecticut River Valley, provided, however, that no reimbursement shall be made for speculative losses and damages or losses or damages for which the United States is liable. On receipt of information from the chief of engineers that request is to be made for funds for the purpose of preparing detailed plans and specifications for any flood control dam and reservoir proposed to be constructed in the Connecticut River Valley, including those specified in Article IV, the commission shall make an estimate of the amount of taxes which would be lost to and of economic losses and damages which would occur in political subdivisions of the signatory state wherein such dam and reservoir would be located, wholly or in part, by reason of acquisition and ownership by the United States of lands, rights or other property for the construction and operation of such flood control dam and reservoir and shall decide whether the flood control benefits to be derived in the signatory states from such flood control dam and reservoir, both by itself and as a unit of a comprehensive flood control plan, justifies, in the opinion of the commission, the assumption by signatory states of the obligation to make reimbursement for loss of taxes and for economic losses

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and damages. Such estimate and decision shall thereafter be reviewed by the commission at five-year intervals until such time as the United States shall have acquired title to the site of such flood control dam or plans for its construction are abandoned. The commission shall notify the governor, the members of the United States Senate and the members of the United States House of Representatives from each signatory state and the chief of engineers as to the commission’s decision and as to any change in such decision. On receipt of information from the chief of engineers that any flood control dam and reservoir is to be constructed, reconstructed, altered or used for any purpose in addition to flood control, including those flood control dams and reservoirs heretofore constructed and those specified in Article IV, the commission shall make a separate estimate of the amount of taxes which would be lost to and of economic losses and damages which would occur in political subdivisions of the signatory state wherein such dam and reservoir would be located, wholly or in part, by reason of acquisition and ownership by the United States of lands, rights or other property for the construction and operation of such dam and reservoir in excess of the estimated amount of taxes which would be lost and of the economic losses and damages which would occur if the dam were constructed and operated for flood control only and the commission shall decide the extent to which, in its opinion, the signatory states would be justified in making reimbursement for loss of taxes and for economic losses and damages in addition to reimbursement for such dam and reservoir if constructed and used for flood control only. Such estimate and decision shall thereafter be reviewed by the commission at five-year intervals until such time as such dam and reservoir shall be so constructed, reconstructed, altered or used or plans for such construction, reconstruction, alteration or use are abandoned. The commission shall notify the governor, the members of the United States Senate and the members of the United States House of Representatives from each signatory state as to the commission’s decision and as to any change in such decision. Within thirty days after acquisition by the United States of the site of any flood control dam the commission shall proceed to make a final determination of economic losses and damages occasioned by such dam and reservoir. The commission shall not include in such determination either speculative losses and damages or losses and damages for which the United States is liable. The commission shall compute the share the Commonwealth of Massachusetts and the State of Connecticut shall each pay to the state wherein such dam and reservoir is located by multiplying the percentage of flood and damages, as previously determined, by the percentage of flood control benefits which the Commonwealth of Massachusetts and the State of Connecticut each receives, in the allocation by states, of the flood control benefits resulting from the dam and reservoir. The commission shall send a notice to the treasurer of the Commonwealth of Massachusetts and to the treasurer of the State of Connecticut setting forth in detail

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the sum, if any, each is to pay to the state wherein such dam and reservoir is located in reimbursement for economic losses and damages and shall also send such notice to the treasurer of the state wherein such dam and reservoir is located. The Commonwealth of Massachusetts and the State of Connecticut on receipt of such formal notification by the commission shall each pay its share of such economic losses or damages to the signatory states wherein such losses or damages occur. Full payment by either state of the sum specified in such formal notification from the commission as to the amount of economic losses and damages for which such state is to make reimbursement shall be a complete and final discharge of all liability by the payor state to the payee state for economic losses and damages for each flood control dam and reservoir within the payee state designated in such formal notification. Each payee signatory state shall have full responsibility for distributing or expending all such sums received and no agency, political subdivision, private person, partnership, firm, association or corporation shall have any claim against any signatory state other than the payee state, nor against the commission relative to such economic losses and damages. A signatory state may, in agreement with the commission and the chief of engineers, acquire title or option to acquire title to any or all lands, rights or other property required for any flood control dam and reservoir within its boundaries and transfer such titles or options to the United States. Whenever the fair cost to said signatory state for such titles or options, as determined by the commission, is greater than the amount received therefor from the United States, the Commonwealth of Massachusetts and the State of Connecticut shall each pay its share of such excess cost to said signatory state, such share to be determined by the commission in accordance with procedure herein contained for determining reimbursement for economic losses and damages. Whenever the commission shall not agree, within a reasonable time or within sixty days after a formal request from the governor of any signatory state, concerning reimbursement for loss of taxes or for economic losses and damages at any flood control dam and reservoir heretofore or hereafter constructed by the United States in the Connecticut River Valley, or concerning the extent, if any, to which reimbursement shall be made for additional loss of taxes and for additional economic losses and damages caused by construction, reconstruction, alteration or use of any such dam for purposes other than flood control, the governor of each signatory state shall designate a person from his state as a member of a board of arbitration, hereinafter called the board, and the members so designated shall choose one additional member who shall be chairman of such board. Whenever the members appointed by the governors to such board shall not agree within sixty days on such additional member of the board, the governors of such signatory states shall jointly designate the additional member. The board shall by majority vote decide the question referred to it and shall do so in

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accordance with the provisions of this compact concerning such reimbursement. The decision of the board on each question referred to it concerning reimbursement for loss of taxes and for economic losses and damages shall be binding on the commission and on each signatory state, notwithstanding any other provision of this compact. ARTICLE VI AUTHORITY OF UNITED STATES Nothing contained in this compact shall be construed as a limitation upon the authority of the United States. ARTICLE VII EXPENSES OF COMMISSION The signatory states agree to appropriate for compensation of agents and employees of the commission and for office, administrative, travel and other expenses on recommendation of the commission subject to limitations as follows: The Commonwealth of Massachusetts obligates itself to not more than seventy-five hundred ($7500) dollars in any one year, the State of New Hampshire obligates itself to not more than one thousand ($1000) dollars in any one year, the State of Vermont obligates itself to not more than two thousand ($2000) dollars in any one year and the State of Connecticut obligates itself to not more than sixty-five hundred ($6500) dollars in any one year. ARTICLE VIII SEPARABILITY OF PROVISIONS Should any part of this compact be held to be contrary to the constitution of any signatory state or of the United States, all other parts thereof shall continue to be in full force and effect. ARTICLE IX COMPACT EFFECTIVE, WHEN; NOTICE OF RATIFICATION This compact shall become operative and effective when ratified by the Commonwealth of Massachusetts and the States of New Hampshire, Vermont and Connecticut and approved by the Congress of the United States. Notice of ratification shall be given by the governor of each state to the governors of other states and to the President of the United States, and the President of the United States is requested to give notice to the governors of each of the signatory states of approval by the Congress of the United States.

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Appendix B-13: Costilla Creek Compact (Amended)

Public Law No. 88–198 77 Statutes at Large 350 (1963) The state of Colorado and the state of New Mexico, parties signatory to this compact (hereinafter referred to as “Colorado” and “New Mexico,” respectively, or individually as a “state,” or collectively as the “states”), having on September 30, 1944 concluded, through their duly authorized commissioners, to-wit: Clifford H. Stone for Colorado and Thomas M. McClure for New Mexico, a compact with respect to the water of Costilla Creek, an interstate stream, which compact was ratified by the states in 1945 and was approved by the congress of the United States in 1946; and The states, having resolved to conclude an amended compact with respect to the waters of Costilla Creek, have designated, pursuant to the acts of their respective legislatures and through their appropriate executive agencies, as their commissioners: J. E. Whitten, for Colorado S. E. Reynolds, for New Mexico who, after negotiations, have agreed upon these articles: ARTICLE I The major purposes of this compact are to provide for the equitable division and apportionment of the use of the waters of Costilla Creek; to promote interstate comity; to remove causes of present and future interstate controversies; to assure the most efficient utilization of the waters of Costilla Creek; to provide for the integrated operation of existing and prospective irrigation facilities on the stream in the two states; to adjust the conflicting jurisdictions of the two states over irrigation works and facilities diverting and storing waters in one state for use in both states; to equalize the benefits of water from Costilla Creek, used for the irrigation of contiguous lands lying on either side of the Boundary, between the citizens and water users of one state and those of the other; and to place the beneficial application of water diverted from Costilla Creek for irrigation by the water users of the two states on a common basis. The physical and other conditions peculiar to the Costilla Creek and its basin, and the nature and location of the irrigation development and the facilities in connection therewith, constitute the basis for this compact; and neither of the States hereby, nor the Congress of the United States by its consent, concedes that this compact establishes any general principle or precedent with respect to any other interstate stream. ARTICLE II As used in this compact, the following names, terms and expressions are described, defined, applied and taken to mean as in this article set forth:

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(a) “Costilla Creek” is a tributary of the Rio Grande which rises on the west slope of the Sangre de Cristo range in the extreme southeastern corner of Costilla County in Colorado and flows in a general westerly direction crossing the boundary three times above its confluence with the Rio Grande in New Mexico. (b) The “Canyon Mouth” is that point on Costilla Creek in New Mexico where the stream leaves the mountains and emerges into the San Luis Valley. (c) The “Amalia Area” is that irrigated area in New Mexico above the Canyon Mouth and below the Costilla Reservoir which is served by decreed direct flow water rights. (d) The “Costilla-Garcia Area” is that area extending from the Canyon Mouth in New Mexico to a point in Colorado about four miles downstream from the boundary, being a compact body of irrigated land on either side of Costilla Creek served by decreed direct flow water rights. (e) The “Eastdale Reservoir No. 1” is that off-channel reservoir located in Colorado in sections 7, 8 and 18, township 1 north, range 73 west, and sections 12 and 13, township 1 north, range 74 west, of the Costilla Estates survey, with a nominal capacity of three thousand four hundred sixty-eight (3,468) acre-feet and a present usable capacity of two thousand (2,000) acre-feet. (f) The “Eastdale Reservoir No. 2” is that off-channel reservoir located in Colorado in sections 3, 4, 9 and 10, township 1 north, range 73 west, of the Costilla Estates survey, with nominal capacity of three thousand forty-one (3,041) acre-feet. (g) The “Costilla Reservoir” is that channel reservoir, having a nominal capacity of fifteen thousand seven hundred (15,700) acre-feet, located in New Mexico near the headwaters of Costilla Creek. The present usable capacity of the reservoir is eleven thousand (11,000) acre-feet, subject to future adjustment by the state engineer of New Mexico. The condition of Costilla Dam may be such that the state engineer of New Mexico will not permit storage above a determined stage except for short periods of time. (h) The “Cerro Canal” is that irrigation canal which diverts water from the left bank of Costilla Creek in New Mexico near the southwest corner of section 12, township 1 south, range 73 west, of the Costilla Estates survey, and runs in a northwesterly direction to the boundary near Boundary Monument No. 140. (i) The “boundary” is the term used herein to describe the common boundary line between Colorado and New Mexico.

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(j) The term “Costilla Reservoir System” means and includes the Costilla Reservoi and the Cerro Canal, the permits for the storage of water in Costilla Reservoir, the twenty-four and fifty-two hundredths (24.52) cubic feet per second of time of direct flow water rights transferred to the Cerro Canal, and the permits for the diversion of direct flow water by the Cerro Canal as adjusted herein to seventy-five and forty-eight hundredths (75.48) cubic feet per second of time. (k) The term “Costilla Reservoir System Safe Yield” means that quantity of usable water made available each year by the Costilla Reservoir System. The safe yield represents the most beneficial operation of the Costilla Reservoir System through the use, first, of the total usable portion of the yield of the twenty-four and fifty-two hundredths (24.52) cubic feet per second of time of direct flow rights transferred to the Cerro Canal, second, of the total usable portion of the yield of the direct flow Cerro Canal permits, and third, of that portion of the water stored in Costilla Reservoir required to complete such safe yield. (l) The term “usable capacity” is defined and means that capacity of Costilla Reservoir at the stage above which the state engineer of New Mexico will not permit storage except for short periods of time. (m) The term “temporary storage” is defined and means the water permitted by the state engineer of New Mexico to be stored in Costilla Reservoir for short periods of time above the usable capacity of that reservoir. (n) The term “additional storage facilities” is defined and means storage capacity which may be provided in either state to impound waters of Costilla Creek and its tributaries in addition to the nominal capacity of Costilla Reservoir and the Costilla Creek complement of the Eastdale Reservoir No. 1 capacity. (o) The term “duty of water” is defined as the rate in cubic feet per second of time at which water may be diverted at the headgate to irrigate a specified acreage of land during the period of maximum requirement. (p) The term “surplus water” is defined and means water which cannot be stored in operating reservoirs during the storage season or water during the irrigation season which cannot be stored in operating reservoirs and which is in excess of the aggregate direct flow rights and permits recognized by this compact. (q) The term “irrigation season” is defined and means that period of each calendar year from May 16 to September 30, inclusive. (r) The term “storage season” is defined and means that period of time extending from October 1 of one year to May 15 of the succeeding year, inclusive.

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(s) The term “points of interstate delivery” means and includes (1) the Acequia Madre where it crosses the boundary; (2) the Costilla Creek where it crosses the boundary; (3) the Cerro Canal where it reaches the boundary; and (4) any other interstate canals which might be constructed with the approval of the commission at the point or points where they cross the boundary. (t) The term “water company” means The San Luis Power and Water Company, a Colorado corporation, or its successor. (u) The word “commission” means the Costilla Creek Compact commission created by Article VIII of this compact for the administration thereof. ARTICLE III 1. To accomplish the purposes of this compact, as set forth in Article I, the following adjustments in the operation of irrigation facilities on Costilla Creek, and in the use of water diverted, stored and regulated thereby, are made: (a) The quantity of water delivered for use in the two states by direct flow ditches in the Costilla-Garcia Area and by the Cerro Canal is based on a duty of water of one cubic foot per second of time for each eighty (80) acres, to be applied in the order of priority; provided, however, that this adjustment in each instance is based on the acreage as determined by the court in decreeing the water rights for the Costilla-Garcia Area, and in the case of the Cerro Canal such basis shall apply to eight thousand (8,000) acres of land. In order to better maintain a usable head for the diversion of water for beneficial consumptive use the adjusted maximum diversion rate under the water right of each of the ditches supplying water for the Costilla-Garcia Area in Colorado is not less than one cubic foot per second of time. (b) There is transferred from certain ditches in the Costilla-Garcia Area twenty-four and fifty-two hundredths (24.52) cubic feet per second of time of direct flow water rights, which rights of use are held by the water company or its successors in title, to the headgate of the Cerro Canal. The twenty-four and fifty-two hundredths (24.52) cubic feet of water per second of time hereby transferred represents an evaluation of these rights after adjustment in the duty of water, pursuant to subsection (a) of this Article, and includes a reduction thereof to compensate for increased use of direct flow water which otherwise would have been possible under these rights by this transfer. (c) Except for the rights to store water from Costilla Creek in Eastdale Reservoir No. 1 as hereinafter provided, all diversion and storage rights

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from Costilla Creek for Eastdale Reservoirs No. 1 and No. 2 are relinquished and the water decreed thereunder is returned to the creek for use in accordance with the plan of integrated operation effectuated by this compact. (d) The Cerro Canal direct flow permit shall be seventy-five and forty-eight hundredths (75.48) cubic feet per second of time. (e) There is transferred to and made available for the irrigation of lands in Colorado a portion of the Costilla Reservoir complement of the Costilla Reservoir System Safe Yield in order that the storage of water in that reservoir may be made for the benefit of water users in both Colorado and New Mexico under the provisions of this compact for the allocations of water and the operation of facilities. 2. Each state grants for the benefit of the other and its water users the rights to change the points of diversion of water from Costilla Creek, to divert water from the stream in one state for use in the other and to store water in one state for the irrigation of lands in the other, insofar as the exercise of such rights may be necessary to effectuate the provisions of this Article and to comply with the terms of this compact. 3. The water company has consented to and approved the adjustments contained in this Article; and such consent and approval shall be evidenced in writing and filed with the commission. ARTICLE IV The apportionment and allocation of the use of Costilla Creek water shall be as follows: (a) There is allocated for diversion from the natural flow of Costilla Creek and its tributaries sufficient water for beneficial use on meadow and pasture lands above Costilla Reservoir in New Mexico to the extent and in the manner now prevailing in that area. (b) There is allocated for diversion from the natural flow of Costilla Creek and its tributaries thirteen and forty-two hundredths (13.42) cubic feet of water per second of time for beneficial use on lands in the Amalia Area in New Mexico. (c) In addition to allocations made in subsections (e), (f) and (g) of this Article, there is allocated for diversion from the natural flow of Costilla Creek fifty and sixty-two hundredths (50.62) cubic feet of water per second of time for Colorado and eighty-nine and eight hundredths (89.08) cubic feet of water per second of time for New Mexico, subject to adjustment as provided in

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Appendix B Article V (e), and such water shall be delivered for beneficial use in the two states in accordance with the schedules and under the conditions set forth in Article V.

(d) There is allocated for diversion from the natural flow of Costilla Creek sufficient water to provide each year one thousand (1,000) acre-feet of stored water in Eastdale Reservoir No. 1, such water to be delivered as provided in Article V. (e) There is allocated for diversion to Colorado thirty-six and five-tenths per cent (36.5%) and to New Mexico sixty-three and five-tenths per cent (63.5%) of the water stored by Costilla Reservoir for release therefrom for irrigation purposes each year, subject to adjustment as provided in Article V (e) and such water shall be delivered for beneficial use in the two states on a parity basis in accordance with the provisions of Article V. By “parity basis” is meant that neither state shall enjoy a priority of right of use. (f) There is allocated for beneficial use in each of the states of Colorado and New Mexico one-half of the surplus water, as defined in Article II (p), to be delivered as provided in Article V. (g) There is allocated for beneficial use in each of the states of Colorado and New Mexico one-half of any water made available and usable by additional storage facilities which may be constructed in the future. ARTICLE V The operation of the facilities of Costilla Creek and the delivery of water for the irrigation of land in Colorado and New Mexico, in accordance with the allocations made in Article IV, shall be as follows: (a) Diversions of water for use on lands in the Amalia Area shall be made as set forth in Article IV (b) in the order of decreed priorities in New Mexico and of relative priority dates in the two states, subject to the right of New Mexico to change the points of diversion and places of use of any of such water to other points of diversion and places of use; provided, however, that the rights so transferred shall be limited in each instance to the quantity of water actually consumed on the lands from which the right is transferred. (b) Deliveries to Colorado of direct flow water below the Canyon Mouth shall be made by New Mexico in accordance with the following schedule:

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Appendix B-13 Table 1 Deliveries of Direct Flow Water to Colorado During Irrigation Season Usable discharge of Incremental Creek at Allocations Canyon Mouth to Colorado Gaging Station (C.F.S.)



(1)

(2A) (2B)

Points of Cumulative Interstate Allocations Delivery to Colorado

(3)

(4)

Remarks

(5)

Acequia 25.00 1.05 Madre

Incremental allocation is 4.2% of the usable discharge when usable discharge is less than 25.00 C.F.S.

2.53 Cerro Canal

Incremental allocation is 10.13% of the usable discharge when usable discharge is less than 25.00 C.F.S.

4.70 Cerro Canal 8.28

This 4.70 C.F.S. is not a part of the Colorado allocation of the direct flow water of the Costilla Reservoir System and is not subject to adjust- ment in the event of a change in the usable capacity of Costilla Reservoir. Incremental allocation is 18.8% of the usable discharge when usable discharge is less than 25.00 C.F.S. This 4.70 C.F.S. allocated to Colo- rado for delivery through the Cerro Canal is 5.50 C.F.S. of the original 6.55 C.F.S. allocated to Colorado for delivery through the Acequia Madre less 0.8 C.F.S. correction for losses.

36.88 0.38 Cerro Canal

This 0.38 C.F.S. is not a part of the Colorado allocation of the direct flow water of the Costilla Reservoir System and is not subject to adjustment in the event of a change in the usable capacity of Costilla Reservoir. Incremental allocation is 3.26% of the usable discharge in excess of 25.38 C.F.S. and less than 36.88 C.F.S.

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Appendix B Deliveries of Direct Flow Water to Colorado During Irrigation Season (cont’d)

Usable discharge of Incremental Creek at Allocations Canyon Mouth to Colorado Gaging Station (C.F.S.)



(1)

(2A) (2B)

Points of Cumulative Interstate Allocations Delivery to Colorado

(3)

(4)

Remarks

(5)

4.04 Cerro Canal 12.70

Incremental allocation is 35.11% of the usable discharge in excess of 25.38 C.F.S. and less than 36.88 C.F.S.

38.62 1.00 Creek 13.70

Incremental allocation is 100% of the usable discharge in excess of 37.62 C.F.S. and less than 38.62 C.F.S.

44.76 2.24 Cerro Canal 15.94

Incremental allocation is 36.5% of the usable discharge in excess of 38.62 C.F.S. and less than 44.76 C.F.S.

50.91 6.00 Creek 21.94

Incremental allocation is 100% of the usable discharge in excess of 44.91 C.F.S. and less than 50.91 C.F.S.

56.48 0.13 Cerro Canal 22.07

Incremental allocation is 11.18% of the usable discharge in excess of 55.35 C.F.S. and less than 56.48 C.F.S.

61.48 1.00 Creek 23.07

Incremental allocation is 100% of the usable discharge in excess of 60.48 C.F.S. and less than 61.48 C.F.S.

64.22

At usable creek discharge of 64.22 C.F.S. the Cerro Canal direct flow permit becomes operative after 1,000 acre-feet has been stored in Eastdale Reservoir No. 1.

139.70 27.55 Cerro Canal 50.62

Incremental allocation is 36.5% of the usable discharge in excess of 64.22 C.F.S. and less than 139.70 C.F.S.

The actual discharges of Costilla Creek at the Canyon Mouth Gaging Station at which the various blocks of direct flow water become effective shall equal the flows set forth in column (1) increased by the transmission losses necessary to deliver those flows to the headgates of the respective direct flow ditches diverting in New Mexico.

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The delivery of ditch water at the boundary shall equal the allocation set forth in columns (2a) and (2b) reduced by the transmission losses between the headgate of the ditch and the point where the ditch crosses the boundary. The allocations to be delivered to Colorado through the Cerro Canal represent, except as otherwise indicated in column (5) of the table above, 36.5 percent of those blocks of direct flow water of the Costilla Reservoir System which are subject to adjustment as provided in subsection (e) of this article. The provisions of article III (1) (a) shall not be applicable to the Colorado allocation of 5.08 C.F.S. which is transferred from the Acequia Madre to the Cerro Canal by this amendment to the Costilla Creek compact and shall not be applicable to the 0.8 C.F.S. which is transferred from Colorado to New Mexico by this amendment to the Costilla Creek compact. The above table is compiled on the basis of the delivery to Colorado at the boundary of thirty-six and five-tenths percent (36.5%) of all direct flow water of the Costilla Reservoir System diverted by the Cerro Canal and the delivery at the boundary of all other direct flow water allocated to Colorado, in the order of priority, all such deliveries to be adjusted for transmission losses. In the event of change in the usable capacity of the Costilla Reservoir, Colorado’s share of all direct flow water of the Costilla Reservoir System diverted by the Cerro Canal, to be delivered at the boundary and adjusted for transmission losses, shall be determined by the percentages set forth in column (4) of the table which appears in subsection (e) of this article. (c) During the storage season, no water shall be diverted under direct flow rights unless there is water in excess of the demand of all operating reservoirs for water from Costilla Creek for storage. (d) In order to assure the most efficient utilization of the available water supply, the filling of Eastdale Reservoir No. 1 from Costilla Creek shall be commenced as early in the spring as possible and shall be completed as soon thereafter as possible. The Cerro Canal or any other ditch which may be provided for that purpose shall be used, insofar as practicable, to convey the water from the Canyon Mouth to Eastdale Reservoir No. 1. During any season when the commission determines that there will be no surplus water, any diversions, waste or spill from any canal or canals supplying Eastdale Reservoir No. 1 will be charged to the quantity of water diverted for delivery to said reservoir.

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(e) The commission shall estimate each year the safe yield of Costilla Reservoir System and its component parts as far in advance of the irrigation season as possible, and shall review and revise such estimates from time to time as may be necessary. In the event the usable capacity of the Costilla Reservoir changes, the average safe yield and the equitable division thereof between the states shall be determined in accordance with the following table: Appendix B-13 Table 2 Usable Capacity of Costilla Reservoir

Average Annual Safe Yield (acre-feet)



(1) 0 1,000 2,000 3,000 4,000 5,000 6,000 7,000 8,000 9,000 10,000 11,000 12,000 13,000 14,000 15,000 15,700

Division of Safe Yield Colorado New Mexico (acre-feet) (percent) (acre-feet) (percent)

(2)

(3)

(4)

(5)

(6)

1,800 3,400 4,900 6,400 7,900 9,300 10,700 12,000 13,200 14,300 15,200 16,000 16,600 17,000 17,400 17,700 17,900

1,510 2,000 2,450 2,910 3,370 3,800 4,220 4,620 4,990 5,320 5,600 5,840 6,020 6,140 6,270 6,360 6,420

83.9 58.8 50.0 45.5 42.7 40.9 39.4 38.5 37.8 37.2 36.8 36.5 36.3 36.1 36.0 35.9 35.9

290 1,400 2,450 3,490 4,530 5,500 6,480 7,380 8,210 8,980 9,600 10,160 10,580 10,860 11,130 11,340 11,480

16.1 41.2 50.0 54.5 57.3 59.1 60.6 61.5 62.2 62.8 63.2 63.5 63.7 63.9 64.0 64.1 64.1

Intermediate quantities shall be computed by proportionate parts. In the event of change in the usable capacity of the Costilla Reservoir, the Costilla Reservoir complement of the Costilla Reservoir System Safe Yield shall be divided between Colorado and New Mexico in accordance with the

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percentages given in columns 4 and 6, respectively, of the above table. Each state may draw from the reservoir in accordance with the allocations made herein, up to its proportion of the Costilla Reservoir complement of the Costilla Reservoir System Safe Yield and its proportion of temporary storage and no more. Colorado may call for the delivery of its share thereof at any of the specified points of interstate delivery. Deliveries of water from Costilla Reservoir to the Canyon Mouth shall be adjusted for transmission losses, if any, between the two points. Deliveries to Colorado at the boundary shall be further adjusted for transmission losses from the Canyon Mouth to the respective points of interstate delivery. Water stored in Costilla Reservoir and not released during the current season shall not be held over to the credit of either state but shall be apportioned when the safe yield is subsequently determined. (f) The Colorado apportionment of surplus water, as allocated in Article IV (f), shall be delivered by New Mexico at such points of interstate delivery and in the respective quantities, subject to transmission losses, requested by the Colorado member of the commission. (g) In the event that additional water becomes usable by the construction of additional storage facilities, such water shall be made available to each state in accordance with rules and regulations to be prescribed by the commission. (h) When it appears to the commission that any part of the water allocated to one state for use in a particular year will not be used by that state, the commission may permit its use by the other state during that year, provided that a permanent right to the use of such water shall not thereby be established. ARTICLE VI The desirability of consolidating various of the direct flow ditches serving the Costilla-Garcia Area, which are now or which would become interstate in character by consolidation, and diverting the water available to such ditches through a common headgate is recognized. Should the owners of any of such ditches, or a combination of them, desire to effectuate a consolidation and provide for a common headgate diversion, application therefor shall be made to the commission which, after review of the plans submitted, may grant permission to make such consolidation. ARTICLE VII The commission shall cause to be maintained and operated a streamgagingstation, equipped with an automatic water-stage recorder, at each of the following points, to-wit:

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(a) On Costilla Creek immediately below Costilla Reservoir. (b) On Costilla Creek at or near the Canyon Mouth above the headgate of Cerro Canal and below the Amalia Area. (c) On Costilla Creek at or near the boundary. (d) On the Cerro Canal immediately below its headgate. (e) On the Cerro Canal at or near the boundary. (f) On the intake from Costilla Creek to the Eastdale Reservoir No. 1, immediately above the point where the intake discharges into the reservoir. (g) On the Acequia Madre immediately below its headgate. (h) On the Acequia Madre at the boundary. (i) Similar gaging stations shall be maintained and operated at such other points as may be necessary in the discretion of the commission for the securing of records required for the carrying out of the provisions of the compact. Such gaging stations shall be equipped, maintained, and operated by the commission directly or in cooperation with an appropriate federal or state agency, and the equipment, method, and frequency of measurement at such stations shall be such as to produce reliable records at all times. ARTICLE VIII The two states shall administer this compact through the official in each state who is now or may hereafter be charged with the duty of administering the public water supplies, and such officials shall constitute the Costilla Creek Compact Commission. In addition to the powers and duties hereinbefore specifically conferred upon such commission, the commission shall collect and correlate factual data and maintain records having a bearing upon the administration of this compact. In connection therewith, the commission may employ such engineering and other assistance as may be reasonably necessary within the limits of funds provided for that purpose by the states. The commission may, by unanimous action, adopt rules and regulations consistent with the provisions of this compact to govern its proceedings. The salaries and expenses of the members of the commission shall be paid by their respective states. Other expenses incident to the administration of the compact, including the employment of engineering or other assistance and the establishment and maintenance of compact gaging stations, not borne by the United States shall be assumed equally by the two states and paid directly to the commission upon vouchers submitted for that purpose. The United States geological survey, or whatever federal agency may succeed to the functions and duties of that agency, shall collaborate with the commission in the

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correlation and publication of water facts necessary for the proper administration of this compact. ARTICLE IX This amended compact shall become operative when ratified by the legislatures of the signatory states and consented to by the Congress of the United States; provided, that, except as changed herein, the provisions, terms, conditions and obligations of the Costilla Creek Compact executed on September 30, 1944, continue in full force and effect. IN WITNESS WHEREOF, the commissioners have signed this compact in triplicate original, one copy of which shall be deposited in the archives of the department of state of the United States of America, and one copy of which shall be forwarded to the governor of each of the signatory states. Done in the city of Santa Fe, New Mexico, on the 7th day of February, in the year of our Lord, one thousand nine hundred and sixty-three.

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Appendix B

Appendix B-14: Delaware River Basin Compact Public Law No. 87–328 75 Statutes at Large 688 (1961)

WHEREAS, the signatory parties recognize the water and related sources of the Delaware basin as regional assets vested with local, state and national interests, for which they have a joint responsibility; and WHEREAS, the conservation, utilization, development, management and control of the water and related resources of the Delaware River Basin under a comprehensive multi-purpose plan will bring the greatest benefits and produce the most efficient service in the public welfare; and WHEREAS, such a comprehensive plan administered by a basin-wide agency will provide effective flood damage reduction; conservation and development of ground and surface water supply for municipal, industrial and agricultural uses; development of recreational facilities in relation to reservoirs, lakes and streams; propagation of fish and game; promotion of related forestry, soil conservation and watershed projects; protection and aid to fisheries dependent upon water resources, development of hydroelectric power potentialities; improved navigation; control of the movement of salt water; abatement and control of stream pollution; and regulation of stream flows toward the attainment of these goals; and WHEREAS, decisions of the United States Supreme Court relating to the waters of the basin have confirmed the interstate regional character of the water resources of the Delaware River Basin, and the United States Corps of Engineers has in a prior report on the Delaware River Basin (House Document 179, 73d Cong. 2nd Sess.) officially recognized the need for an interstate agency and the economies that can result from unified development and control of the water resources of the basin; and WHEREAS, the water resources of the basin are presently subject to the duplicating, overlapping and uncoordinated administration of some 43 state agencies, 14 interstate agencies and 19 federal agencies which exercise a multiplicity of powers and duties resulting in a splintering of authority and responsibilities; and WHEREAS, the joint advisory body known as the Interstate Commission on the Delaware River Basin (INCODEL), created by the respective commissions or committee on Interstate Cooperation of the States of Delaware, New Jersey, New York and Pennsylvania, has on the basis of its extensive investigations, surveys and studies concluded that regional development of the Delaware River Basin is feasible, advisable and urgently needed; and has recommended that an interstate compact with federal participation be consummated to this end; and

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WHEREAS, the Congress of the United States and the executive branch of the government have recognized the national interest in the Delaware River Basin by authorizing and directing the Corps of Engineers, U. S. Department of the Army, to make a comprehensive survey and report on the water and related resources of the Delaware River Basin, enlisting the technical aid and planning participation of many federal, state and municipal agencies dealing with the waters of the basin, and in particular the federal departments of Agriculture, Commerce, Health, Education and Welfare, Interior, and Federal Power Commission; and WHEREAS, some 22,000,000 people of the United States at present live and work in the region of the Delaware River Basin and its environs, and the government, employment, industry and economic development of the entire region and the health, safety and general welfare of its population are and will continue to be vitally affected by the use, conservation, management and control of the water and related resources of the Delaware River Basin; and WHEREAS, demands upon the waters and related resources of the basin are expected to mount rapidly because of the anticipated increase in the population of the region projected to reach 30,000,000 by 1980 and 40,000,000 by 2010, and because of the anticipated increase in industrial growth projected to double by 1980; and WHEREAS, water resources planning and development is technical, complex and expensive, and has often required fifteen to twenty years from the conception to the completion of a large dam and reservoir; and WHEREAS, the public interest requires that facilities must be ready and operative when needed, to avoid the catastrophe of unexpected floods or prolonged drought, and for other purposes; and WHEREAS, the Delaware River Basin Advisory Committee, a temporary body constituted by the governors of the four basin states and the mayors of the cities of New York and Philadelphia, has prepared a draft of an interstate-federal compact for the creation of a basin agency, and the signatory parties desire to effectuate the purposes thereof; now therefore The states of Delaware, New Jersey and New York and the Commonwealth of Pennsylvania, and the United States of America hereby solemnly covenant and agree with each other, upon the enactment of concurrent legislation by the Congress of the United States and by the respective state legislatures, having the same effect as this Part to the following Compact:

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ARTICLE 1 SHORT TITLE, DEFINITIONS, PURPOSE AND LIMITATIONS 1.1 SHORT TITLE. This act shall be known and may be cited as the Delaware River Basin Compact. 1.2 DEFINITIONS. For the purposes of this compact, and of any supplemental or concurring legislation enacted pursuant thereto, except as may be otherwise required by the context: (a) “Basin” shall mean the area of drainage into the Delaware River and its tributaries, including Delaware Bay; (b) “Commission” shall mean the Delaware River Basin Commission created and constituted by this compact; (c) “Compact” shall mean Part 1 of this act; (d) “Cost” shall mean direct and indirect expenditures, commitment, and net induced adverse effects, whether or not compensated for, used or incurred in connection with the establishment, acquisition, construction, maintenance and operation of a project; (e) “Facility” shall mean any real or personal property, within or without the basin, and improvements thereof or thereon, and any and all rights of way, water, water rights, plants, structures, machinery and equipment, acquired, constructed, operated or maintained for the beneficial use of water resources or related land uses including, without limiting the generality of the foregoing, any and all things and appurtenances necessary, useful or convenient for the control, collection, storage, withdrawal, diversion, release, treatment, transmission, sale or exchange of water; or for navigation thereon, or the development and use of hydroelectric energy and power, and public recreational facilities; or the propagation of fish and wildlife; or to conserve and protect the water resources of the basin or any existing or future water supply source, or to facilitate any other uses of any of them; (f) “Federal government” shall mean the government of the United States of America, and any appropriate branch, department, bureau or division thereof, as the case may be; (g) “Project” shall mean any work, service or activity which is separately planned, financed, or identified by the commission, or any separate

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facility undertaken or to be undertaken within a specified area, for the conservation, utilization, control, development or management of water resources which can be established and utilized independently or as an addition to an existing facility, and can be considered as a separate entity for purposes of evaluation; (h) “Signatory party” shall mean a state or commonwealth party to this compact, and the federal government; (i) “Water resources” shall include water and related natural resources, in, on, under, or above the ground, including related uses of land, which are subject to beneficial use, ownership or control. 1.3 PURPOSE AND FINDINGS. The legislative bodies of the respective signatory parties hereby find and declare: (a) The water resources of the basin are affected with a local, state, regional and national interest and their planning, conservation, utilization, development, management and control, under appropriate arrangements for intergovernmental cooperation, are public purposes of the respective signatory parties. (b) The water resources of the basin are subject to the sovereign right and responsibility of the signatory parties, and it is the purpose of this compact to provide for a joint exercise of such powers and sovereignty in the common interests of the people of the region. (c) The water resources of the basin are functionally inter-related, and the uses of these resources are interdependent. A single administrative agency is therefore essential for effective and economical direction, supervision and coordination of efforts and programs of federal, state and local governments and of private enterprise. (d) The water resources of the Delaware River Basin, if properly planned and utilized, are ample to meet all presently projected demands, including existing and added diversions in future years; and ever increasing economies and efficiencies in the use and reuse of water resources can be brought about by comprehensive planning, programming and management. (e) In general, the purposes of this compact are to promote interstate comity; to remove causes of present and future controversy; to make secure and protect present developments within the states; to encourage and provide for the planning, conservation, utilization, development, management and control of the water resources of the basin; to provide

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Appendix B for cooperative planning and action by the signatory parties with respect to such water resources; and to apply the principle of equal and uniform treatment to all water users who are similarly situated and to all users of related facilities, without regard to established political boundaries.

1.4 POWERS OF CONGRESS: WITHDRAWAL. Nothing in this compact shall be construed to relinquish the functions, powers or duties of the Congress of the United States with respect to the control of any navigable waters within the basin, nor shall any provision hereof be construed in derogation of any of the constitutional powers of the Congress to regulate commerce among the states and with foreign nations. The power and right of the Congress to withdraw the federal government as a party to this compact or to revise or modify the terms, conditions and provisions under which it may remain a party by amendment, repeal or modification of any federal statute applicable thereto is recognized by the signatory parties. 1.5 EXISTING AGENCIES: CONSTRUCTION. It is the purpose of the signatory parties to preserve and utilize the functions, powers and duties of existing offices and agencies of government to the extent not inconsistent with this compact, and the commission is authorized and directed to utilize and employ such offices and agencies for the purpose of this compact to the fullest extent it finds feasible and advantageous. 1.6 DURATION OF COMPACT. (a) The duration of this compact shall be for an initial period of 100 years from its effective date, and it shall be continued for additional periods of 100 years if not later than 20 years nor sooner than 25 years prior to the termination of the initial period or any succeeding period none of the signatory states, by authority of an act of its legislature, notifies the commission of intention to terminate the compact at the end of the then current 100 years period. (b) In the event that this compact should be terminated by operation of paragraph (a) above, the commission shall be dissolved, its assets and liabilities transferred, and its corporate affairs wound up, in such manner as may be provided by act of the Congress. ARTICLE 2 ORGANIZATION AND AREA 2.1 COMMISSION CREATED. The Delaware River Basin Commission is hereby created as a body politic and

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corporate, with succession for the duration of this compact, as an agency and instrumentality of the governments of the respective signatory parties. 2.2 COMMISSION MEMBERSHIP. The Commission shall consist of the governors of the signatory states, exofficio, and one commissioner to be appointed by the President of the United States to serve during the term of office of the President. 2.3 ALTERNATES. Each member of the commission shall appoint an alternate to act in his place and stead, with authority to attend all meetings of the commission and with power to vote in the absence of the member. Unless otherwise provided by law of the signatory party for which he is appointed, each alternate shall serve during the term of the member appointing him, subject to removal at the pleasure of the member. In the event of a vacancy in the office of alternate, it shall be filled in the same manner as an original appointment for the unexpired term only. 2.4 COMPENSATION. Members of the commission and alternates shall serve without compensation but may be reimbursed for necessary expenses incurred in and incident to the performance of their duties. 2.5 VOTING POWER. Each member shall be entitled to one vote on all matters which may come before the commission. No action of the commission shall be taken at any meeting unless a majority of the membership shall vote in favor thereof. 2.6 ORGANIZATION AND PROCEDURE. The commission shall provide for its own organization and procedure, and shall adopt rules and regulations governing its meetings and transactions. It shall organize annually by the election of a chairman and vice-chairman from among its members. It shall provide by its rules for the appointment by each member in his discretion of an advisor to serve without compensation, who may attend all meetings of the commission and its committees. 2.7 JURISDICTION OF THE COMMISSION. The commission shall have, exercise and discharge its functions, powers and duties within the limits of the basin, except that it may in its discretion act outside the basin whenever such action may be necessary or convenient to effectuate its powers or duties within the basin, or to sell or dispose of water, hydroelectric power or other water resources within or without the basin. The commission shall exercise such power outside the basin only upon the consent of the state in which it proposes to act.

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ARTICLE 3 POWERS AND DUTIES OF THE COMMISSION 3.1 PURPOSE AND POLICY. The commission shall develop and effectuate plans, policies and projects relating to the water resources of the basin. It shall adopt and promote uniform and coordinated policies for water conservation, control, use and management in the basin. It shall encourage the planning, development and financing of water resources projects according to such plans and policies. 3.2 COMPREHENSIVE PLAN, PROGRAM AND BUDGETS. The commission shall, in accordance with Article 13 of this compact, formulate and adopt: (a) A comprehensive plan, after consultation with water users and interested public bodies; for the immediate and long range development and uses of the water resources of the basin; (b) A water resources program, based upon the comprehensive plan, which shall include a systematic presentation of the quantity and quality of water resources needs of the area to be served for such reasonably foreseeable period as the commission may determine, balanced by existing and proposed projects required to satisfy such needs, including all public and private projects affecting the basin, together with a separate statement of the projects proposed to be undertaken by the commission during such period; and (c) An annual current expense budget, and an annual capital budget consistent with the water resources program covering the commission’s projects and facilities for the budget period. 3.3 ALLOCATIONS, DIVERSIONS AND RELEASES. The commission shall have the power from time to time as need appears, in accordance with the doctrine of equitable apportionment, to allocate the waters of the basin to and among the states signatory to this compact and to and among their respective political subdivisions, and to impose conditions, obligations and release requirements related thereto, subject to the following limitations: (a) The commission, without the unanimous consent of the parties to the United States Supreme Court decree in New Jersey v. New York, 74 S. Ct. 842, 347 U.S. 995, 98 L.Ed.2d 1127 (1954), shall not impair, diminish or otherwise adversely affect the diversions, compensating releases, rights, conditions, obligations, and provisions for the administration thereof as

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provided in said decree; provided, however, that after consultation with the river master under said decree the commission may find and declare a state of emergency resulting from a drought or catastrophe and it may thereupon by unanimous consent of its members authorize and direct an increase or decrease in any allocation or diversion permitted or releases required by the decree, in such manner and for such limited time as may be necessary to meet such an emergency condition. (b) No allocation of waters hereafter made pursuant to this section shall constitute a prior appropriation of the waters of the basin or confer any superiority of right in respect to the use of those waters, nor shall any such action be deemed to constitute an apportionment of the waters of the basin among the parties hereto; provided that this paragraph shall not be deemed to limit or restrict the power of the commission to enter into covenants with respect to water supply, with a duration not exceeding the life of this compact, as it may deem necessary for the benefit or development of the water resources of the basin. (c) Any proper party deeming itself aggrieved by action of the commission with respect to an out-of-basin diversion or compensating releases in connection therewith, notwithstanding the powers delegated to the commission by this compact may invoke the original jurisdiction of the United States Supreme Court within one year after such action for an adjudication and determination thereof de novo. Any other action of the commission pursuant to this section shall be subject to judicial review in any court of competent jurisdiction. 3.4 SUPREME COURT DECREE: WAIVERS. Each of the signatory states and their respective political subdivisions, in consideration of like action by the others, and in recognition of reciprocal benefits, hereby waives and relinquishes for the duration of this compact any right, privilege or power it may have to apply for any modification of the terms of the decree of the United States Supreme Court in New Jersey v. New York, 74 S.Ct. 842, 347 U.S. 995, 98 L.Ed.2d 1127 (1954) which would increase or decrease the diversions authorized or increase or decrease the releases required thereunder, except that a proceeding to modify such decree to increase diversions or compensating releases in connection with such increased diversions may be prosecuted by a proper party to effectuate rights, powers, duties and obligations under Section 3.3 of this compact, and except as may be required to effectuate the provisions of paragraph 111B3 and VB of said decree.

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3.5 SUPREME COURT DECREE: SPECIFIC LIMITATIONS ON COMMISSION. Except as specifically provided in Sections 3.3 and 3.4 of this article, nothing in this compact shall be construed in any way to impair, diminish or otherwise adversely affect the rights, powers, privileges, conditions and obligations contained in the decree of the United States Supreme Court in New Jersey v. New York, 74 S.Ct. 842, 347 U.S. 995, 98 L.Ed.2d 1127 (1954). To this end, and without limitation thereto, the commission shall not: (a) Acquire, construct or operate any project or facility or make any order or take any action which would impede or interfere with the rights, powers, privileges, conditions or obligations contained on said decree; (b) Impose or collect any fee, charge or assessment with respect to diversions of waters of the basin permitted by said decree; (c) Exercise any jurisdiction, except upon consent of all the parties to said decree, over the planning, design, construction, operation or control of any projects, structures or facilities constructed or used in connection with withdrawals, diversions and releases of waters of the basin authorized by said decree or of the withdrawals, diversions or releases to be made thereunder; or (d) Serve as river master under said decree, except upon consent of all the parties thereto. 3.6 GENERAL POWERS. The commission may: (a) Plan, design, acquire, construct, reconstruct, complete, own, improve, extend, develop, operate and maintain any and all projects, facilities, properties, activities and services, determined by the commission to be necessary, convenient or useful for the purposes of this compact; (b) Establish standards of planning, design and operation of all projects and facilities in the basin which affect its water resources, including without limitation thereto water and waste treatment plants, stream and lake recreational facilities, trunk mains for water distribution, local flood protection works, small watershed management programs, and ground water recharging operations; (c) Conduct and sponsor research on water resources, their planning, use, conservation, management, development, control and protection, and the capacity, adaptability and best utility of each facility thereof, and collect, compile, correlate, analyze, report and interpret data on water

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resources and uses in the basin, including without limitation thereto the relation of water to other resources, industrial water technology, ground water movement, relation between water price and water demand, and general hydrological conditions; (d) Compile and coordinate systematic stream stage and ground water level forecasting data, and publicize such information when and as needed for water uses, flood warning, quality maintenance or other purposes; (e) Conduct such special ground water investigation, tests, and operations and compile such data relating thereto as may be required to formulate and administer the comprehensive plan; (f) Prepare, publish and disseminate information and reports with respect to the water problems of the basin and for the presentation of the needs, resources and policies of the basin to executive and legislative branches of the signatory parties; (g) Negotiate for such loans, grants, services or other aids as may be lawfully available from public or private sources to finance or assist in effectuating any of the purposes of this compact; and to receive and accept such aid upon such terms and conditions, and subject to such provisions for repayment as may be required by federal or state law or as the commission may deem necessary or desirable; (h) Exercise such other and different powers as may be delegated to it by this compact or otherwise pursuant to law, and have and exercise all powers necessary or convenient to carry out its express powers or which may be reasonably implied therefrom. 3.7 RATES AND CHARGES. The commission may from time to time after public notice and hearing fix, alter and revise rates, rentals, charges and tolls and classifications thereof, for the use of facilities which it may own or operate and for products and services rendered thereby, without regulation or control by any department, office or agency of any signatory party. 3.8 REFERRAL AND REVIEW. No project having a substantial effect on the water resources of the basin shall hereafter be undertaken by any person, corporation or governmental authority unless it shall have been first submitted to and approved by the commission, subject to the provisions of Sections 3.3 and 3.5. The Commission shall approve a project whenever it finds and determines that such project would not substantially impair or conflict with the comprehensive plan and may modify and

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Appendix B approve as modified, or may disapprove any such project whenever it finds and determines that the project would substantially impair or conflict with such plan. The Commission shall provide by regulation for the procedure of submission, review and consideration of projects, and for its determinations pursuant to this section. Any determination of the Commission hereunder shall be subject to judicial review in any court of competent jurisdiction.

3.9 COORDINATION AND COOPERATION. The Commission shall promote and aid the coordination of the activities and programs of federal, state, municipal and private agencies concerned with water resources administration in the basin. To this end, but without limitation thereto, the Commission may: (a) Advise, consult, contract, financially assist, or otherwise, cooperate with any and all such agencies; (b) Employ any other agency or instrumentality of any of the signatory parties or of any political subdivision thereof, in the design, construction, operation and maintenance of structures, and the installation and management of river control systems, or for any other purpose; (c) Develop and adopt plans and specifications for particular water resources projects and facilities which so far as consistent with the comprehensive plan incorporate any separate plans of other public and private organizations operating in the basin, and permit the decentralized administration thereof; (d) Qualify as a sponsoring agency under any federal legislation heretofore or hereafter enacted to provide financial or other assistance for the planning, conservation, utilization, development, management or control of water resources. 3.10 ADVISORY COMMITTEES. The Commission may constitute and empower advisory committees, which may be comprised of representatives of the public and of federal, state, county and municipal governments, water resources agencies, water-using industries, water-interest groups, labor and agriculture. ARTICLE 4 WATER SUPPLY 4.1 GENERALLY. The Commission shall have power to develop, implement and effectuate plans and projects for the use of the waters of the basin for domestic, municipal,

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agricultural and industrial water supply. To this end, without limitation thereto, it may provide for, construct, acquire, operate and maintain dams, reservoirs and other facilities for utilization of surface and ground water resources, and all related structures, appurtenances and equipment on the river and its tributaries and at such off-river sites as it may find appropriate, and may regulate and control the use thereof. 4.2 STORAGE AND RELEASE OF WATERS. (a) The Commission shall have power to acquire, operate and control projects and facilities for the storage and release of waters, for the regulation of flows and supplies of surface and ground waters of the basin, for the protection of public health, stream quality control, economic development, improvement of fisheries, recreation, dilution and abatement of pollution, the prevention of undue salinity and other purposes. (b) No signatory party shall permit any augmentation of flow to be diminished by the diversion of any water of the basin during any period in which waters are being released from storage under the direction of the Commission for the purpose of augmenting such flow, except in cases where such diversion is duly authorized by this compact, or by the Commission pursuant thereto, or by the judgment, order or decree of a court of competent jurisdiction. 4.3 ASSESSABLE IMPROVEMENTS. The Commission may undertake to provide stream regulation in the main stream or any tributary in the basin and may assess on an annual basis or otherwise the cost thereof upon water users or any classification of them specially benefited thereby to a measurable extent, provided that no such assessment shall exceed the actual benefit to any water user. Any such assessment shall follow the procedure prescribed by law for local improvement assessments and shall be subject to judicial review in any court of competent jurisdiction. 4.4 COORDINATION. Prior to entering upon the execution of any project authorized by this article, the Commission shall review and consider all existing rights, plans and programs of the signatory parties, their political subdivisions, private parties, and water users which are pertinent to such project, and shall hold a public hearing on each proposed project. 4.5 ADDITIONAL POWERS. In connection with any project authorized by this article, the Commission shall have power to provide storage, treatment, pumping and transmission

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Appendix B facilities, but nothing herein shall be construed to authorize the Commission to engage in the business of distributing water.

ARTICLE 5 POLLUTION CONTROL 5.1 GENERAL POWERS. The Commission may undertake investigations and survey, and acquire, construct, operate and maintain projects and facilities to control potential pollution and abate or dilute existing pollution of the water resources of the basin. It may invoke as complainant the power and jurisdiction of water pollution abatement agencies of the signatory parties. 5.2 POLICY AND STANDARDS. The Commission may assume jurisdiction to control future pollution and abate existing pollution in the waters of the basin, whenever it determines after investigation and public hearing upon due notice that the effectuation of the comprehensive plan so requires. The standard of such control shall be that pollution by sewage or industrial or other waste originating within a signatory state shall not injuriously affect waters of the basin as contemplated by the comprehensive plan. The Commission after such public hearing, may classify the waters of the basin and establish standards of treatment of sewage, industrial or other waste, according to such classes including allowance for the variable factors of surface and ground waters, such as size of the stream, flow, movement, location, character, self-purifications, and usage of the waters affected. After such investigation, notice and hearing the commission may adopt and from time to time amend and repeal rules, regulations and standards to control such future pollution and abate existing pollution, and to require such treatment of sewage, industrial or other waste within a time reasonable for the construction of the necessary works as may be required to protect the public health or to preserve the waters of the basin for uses in accordance with the comprehensive plan. 5.3 COOPERATIVE LEGISLATION AND ADMINISTRATION. Each of the signatory parties covenants and agrees to prohibit and control pollution of the waters of the basin according to the requirements of this compact and to cooperate faithfully in the control of future pollution in and abatement of existing pollution from the rivers, streams, and waters in the basin which flow through, under, into or border upon any of such signatory states, and in order to effect such object, agrees to enact any necessary legislation to enable each such party to place and maintain the waters of said basin in a satisfactory condition, available for safe and satisfactory

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use as public and industrial water supplies after reasonable treatment, suitable for recreational usage, capable of maintaining fish and other aquatic life, free from unsightly or malodorous nuisances due to floating solids or sludge deposits and adaptable to such other uses as may be provided by the comprehensive plan. 5.4 ENFORCEMENT. The Commission may, after investigation and hearing, issue an order or orders upon any person or public or private corporation or other entity, to cease the discharge of sewage, industrial or other waste into waters of the basin which it determines to be in violation of such rules and regulations as it shall have adopted for the prevention and abatement of pollution. Any such order or orders may prescribe the date, including a reasonable time for the construction of any necessary works, on or before which such discharge shall be wholly or partially discontinued, modified or treated, or otherwise conformed to the requirements of such rules and regulations. Such order shall be reviewable in any court of competent jurisdiction. The courts of the signatory parties shall have jurisdiction to enforce against any person, public or private corporation, or other entity, any and all provisions of this Article or of any such order. The Commission may bring an action in its own name in any such court of competent jurisdiction to compel compliance with any provision of this Article, or any rule or regulation issued pursuant thereto or of any such order, according to the practice and procedure of the court. 5.5 FURTHER JURISDICTION. Nothing in this compact shall be construed to repeal, modify or qualify the authority of any signatory party to enact any legislation or enforce any additional conditions and restrictions to lessen or prevent the pollution of waters within its jurisdiction. ARTICLE 6 FLOOD PROTECTION 6.1 GENERAL POWERS. The Commission may plan, design, construct and operate and maintain projects and facilities, as it may deem necessary or desirable for flood damage reduction. It shall have power to operate such facilities and to store and release waters on the Delaware River and its tributaries and elsewhere within the basin, in such manner, at such times, and under such regulations as the Commission may deem appropriate to meet flood conditions as they may arise.

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6.2 FLOOD PLAIN ZONING. (a) The Commission shall have power to adopt, amend and repeal recommended standards, in the manner provided by this section, relating to the nature and extent of the uses of land in areas subject to flooding by waters of the Delaware River and its tributaries. Such standards shall not be deemed to impair or restrict the power of the signatory parties or their political subdivisions to adopt zoning and other land use regulations not inconsistent therewith. (b) The Commission may study and determine the nature and extent of the flood plains of the Delaware River and its tributaries. Upon the basis of such studies, it may establish encroachment lines and delineate the areas subject to flood, including a classification of land with reference to relative risk of flood and the establishment of standards for flood plain use which will safeguard the public health, safety and property. Prior to the adoption of any standards delineating such area or defining such use, the commission shall hold public hearings, in the manner provided by Article 14, with respect to the substance of such standards. At or before such public hearings the proposed standards shall be available, and all interested persons shall be given an opportunity to be heard thereon at the hearing. Upon the adoption and promulgation of such standards, the commission may enter into agreements to provide technical and financial aid to any municipal corporation for the administration and enforcement of any local land use ordinances or regulations giving effect to such standards. 6.3 FLOOD LANDS ACQUISITION. The Commission shall have power to acquire the fee or any lesser interest in lands and improvements thereon within the area of a flood plain for the purpose of restricting the use of such property so as to minimize the flood hazard, converting property to uses appropriate to flood plain conditions, or preventing unwarranted constrictions that reduce the ability of the river channel to carry flood water. Any such action shall be in accord with the standards adopted and promulgated pursuant to Section 6.2. 6.4 FLOOD AND STREAM STAGE WARNINGS AND POSTING. The Commission may cause lands particularly subject to flood to be posted with flood hazard warnings, and may from time to time cause flood advisory notices to be published and circulated as conditions may warrant.

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ARTICLE 7 WATERSHED MANAGEMENT 7.1 WATERSHEDS GENERALLY. The Commission shall promote sound practices of watershed management in the basin, including projects and facilities to retard run-off and waterflow and prevent soil erosion. 7.2 SOIL CONSERVATION AND FORESTRY. The Commission may acquire, sponsor or operate facilities and projects to encourage soil conservation, prevent and control erosion, and to promote land reclamation and sound forestry practices. 7.3 FISH AND WILDLIFE. The Commission may acquire, sponsor or operate projects and facilities for the maintenance and improvement of fish and wildlife habitats related to the water resources of the basin. 7.4 COOPERATIVE PLANNING AND OPERATION. (a) The Commission shall cooperate with the appropriate agencies of the signatory parties and with other public and private agencies in the planning and effectuation of a coordinated program of facilities and projects authorized by this article. (b) The Commission shall not operate any such project or facility unless it has first found and determined that no other suitable unit or agency of government is available to operate the same upon reasonable conditions, in accordance with the intent and purpose expressed in Section 1.5 of this compact. ARTICLE 8 RECREATION 8.1 DEVELOPMENT. The Commission shall provide for the development of water related public sports and recreational facilities. The Commission on its own account or in cooperation with a signatory party, political subdivision or any agency thereof, may provide for the construction, maintenance and administration of such facilities, subject to the provisions of Section 8.2 hereof. 8.2 COOPERATIVE PLANNING AND OPERATION. (a) The Commission shall cooperate with the appropriate agencies of the signatory parties and with other public and private agencies in the

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(b) The Commission shall not operate any such project or facility unless it has first found and determined that no other suitable unit or agency of government is available to operate the same upon reasonable conditions, in accordance with the intent and purpose expressed in Section 1.5 of this compact. 8.3 OPERATION AND MAINTENANCE. The Commission, within limits prescribed by this article, shall: (a) Encourage activities of other public agencies having water related recreational interests and assist in the coordination thereof; (b) Recommend standards for the development and administration of water related recreational facilities; (c) Provide for the administration, operation and maintenance of recreational facilities owned or controlled by the Commission and for the letting and supervision of private concessions in accordance with this article. 8.4 CONCESSIONS. The Commission shall after notice and public hearing provide by regulation for the award of contracts for private concessions in connection with recreational facilities, including any renewal or extension thereof, upon sealed competitive bids after public advertisement therefor. ARTICLE 9 HYDROELECTRIC POWER 9.1 DEVELOPMENT. The waters of the Delaware River and its tributaries may be impounded and used by or under authority of the Commission for the generation of hydroelectric power and hydroelectric energy, in accordance with the comprehensive plan. 9.2 POWER GENERATION. The Commission may develop and operate, or authorize to be developed and operated, dams and related facilities and appurtenances for the purpose of generating hydroelectric power and hydroelectric energy. 9.3 TRANSMISSION. The Commission may provide facilities for the transmission of hydroelectric power and hydroelectric energy produced by it where such facilities are not otherwise available upon reasonable terms, for the purpose of wholesale

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marketing of power and nothing herein shall be construed to authorize the Commission to engage in the business of direct sale to consumers. 9.4 DEVELOPMENT CONTRACTS. The Commission may after public notice and hearing enter into contracts on reasonable terms, consideration and duration under which public utilities or public agencies may develop hydroelectric power and hydroelectric energy through the use of dams, related facilities and appurtenances. 9.5 RATES AND CHARGES. Rates and charges fixed by the Commission for power which is produced by its facilities shall be reasonable, nondiscriminatory, and just. ARTICLE 10 REGULATION OF WITHDRAWALS AND DIVERSIONS 10.1 POWER OF REGULATION. The Commission may regulate and control withdrawals and diversions from surface waters and ground waters of the basin, as provided by this article. The Commission may enter into agreements with the signatory parties relating to the exercise of such power of regulation or control and may delegate to any of them such powers of the Commission as it may deem necessary or desirable. 10.2 DETERMINATION OF PROTECTED AREAS. The Commission may from time to time after public hearing upon due notice determine and delineate such areas within the basin wherein the demand upon supply made by water users have developed or threatened to develop to such a degree as to create a water shortage or to impair or conflict with the requirements or effectuation of the comprehensive plan, and only such areas may be designated as “protected areas.” The Commission, whenever it determines that such shortage no longer exists, shall terminate the protected status of such area and shall give public notice of such termination. 10.3 WITHDRAWAL PERMITS. In any protected areas so determined and delineated, no person, firm, corporation or other entity shall divert or withdraw water for domestic, municipal, agricultural or industrial uses in excess of such quantities as the Commission may prescribe by general regulation, except (i) pursuant to a permit granted under this article, or (ii) pursuant to a permit or approval heretofore granted under the laws of any of the signatory states. 10.4 EMERGENCY. In the event of a drought or other condition which may cause an actual and immediate shortage of available water supply within the basin, or within any

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10.5 STANDARDS. Permits shall be granted, modified or denied as the case may be so as to avoid such depletion of the natural stream flows and ground waters in the protected area or in an emergency area as will adversely affect the comprehensive plan or the just and equitable interests and rights of other lawful users of the same source, giving due regard to the need to balance and reconcile alternative and conflicting uses in the event of an actual or threatened shortage of water of the quality required. 10.6 JUDICIAL REVIEW. The determinations and delineations of the Commission pursuant to Section 10.2 and the granting, modification or denial of permits pursuant to Section 10.3 through 10.5 shall be subject to judicial review in any court of competent jurisdiction. 10.7 MAINTENANCE OF RECORDS. Each state shall provide for the maintenance and preservation of such records of authorized diversions and withdrawals, and annual volume thereof as the Commission shall prescribe. Such records and supplementary reports shall be furnished to the Commission at its request. 10.8 EXISTING STATE SYSTEMS. Whenever the Commission finds it necessary or desirable to exercise the powers conferred by this article any diversion or withdrawal permits authorized or issued under the laws of any of the signatory states shall be superseded to the extent of any conflict with the control and regulation exercised by the Commission. ARTICLE 11 INTERGOVERNMENTAL RELATIONS 11.1 FEDERAL AGENCIES AND PROJECTS. For the purposes of avoiding conflicts of jurisdiction and of giving full effect to the Commission as a regional agency of the signatory parties, the following rules shall govern federal projects affecting the water resources of the basin, subject in each case to the provisions of Section 1.4 of this compact:

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(a) The planning of all projects related to powers delegated to the Commission by this compact shall be undertaken in consultation with the Commission; (b) No expenditure or commitment shall be made for or on account of the construction, acquisition or operation of any project or facility nor shall it be deemed authorized, unless it shall have first been included by the Commission in the comprehensive plan; (c) Each federal agency otherwise authorized by law to plan, design, construct, operate or maintain any project or facility in or for the basin shall continue to have, exercise and discharge such authority except as specifically provided by this section. 11.2 STATE AND LOCAL AGENCIES AND PROJECTS. For the purpose of avoiding conflicts of jurisdiction and giving full effect to the Commission as a regional agency of the signatory parties, the following rules shall govern projects of the signatory states, their political subdivisions and public corporations affecting water resources of the basin: (a) The planning of all projects relating to powers delegated to the Commission by this compact shall be undertaken in consultation with the Commission; (b) No expenditure or commitment shall be made for or on account of the construction, acquisition or operation of any project or facility unless it shall have first been included by the Commission in the comprehensive plan; (c) Each state and local agency otherwise authorized by law to plan, design, construct, operate or maintain any project or facility in or for the basin shall continue to have, exercise and discharge such authority, except as specifically provided by this section. 11.3 RESERVED TAXING POWERS OF STATES. Each of the signatory parties reserves the right to levy, assess and collect fees, charges and taxes on or measured by the withdrawal or diversion of waters of the basin for use within the jurisdictions of the respective signatory parties. 11.4 PROJECT COSTS AND EVALUATION STANDARDS. The Commission shall establish uniform standards and procedures for the evaluation, determination of benefits, and cost allocations of projects affecting the basin, and for the determination of project priorities, pursuant to the requirements of the comprehensive plan and its water resources program. The Commission shall develop equitable cost sharing and reimbursement formulas for the signatory parties including:

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(a) Uniform and consistent procedures for the allocation of project costs among purposes included in multiple-purpose programs; (b) Contracts and arrangements for sharing financial responsibility among and with signatory parties, public bodies, groups and private enterprise, and for the supervision of their performance; (c) Establishment and supervision of a system of accounts for reimbursable purposes and directing the payments and charges to be made from such accounts; (d) Determining the basis and apportioning amounts (i) of reimbursable revenues to be paid signatory parties or their political subdivisions, and (ii) of payments in lieu of taxes to any of them. 11.5 COOPERATIVE SERVICES. The Commission shall furnish technical services, advice and consultation to authorized agencies of the signatory parties with respect to the water resources of the basin, and each of the signatory parties pledges itself to provide technical and administrative services to the Commission upon request, within the limits of available appropriations and to cooperate generally with the Commission for the purposes of this compact, and the cost of such services may be reimbursable whenever the parties deem appropriate. ARTICLE 12 CAPITAL FINANCING 12.1 BORROWING POWER. The Commission may borrow money for any of the purposes of this compact, and may issue its negotiable bonds and other evidences of indebtedness in respect thereto. All such bonds and evidences of indebtedness shall be payable solely out of the properties and revenues of the Commission without recourse to taxation. The bonds and other obligations of the Commission, except as may be otherwise provided in the indenture under which they were issued, shall be direct and general obligations of the Commission and the full faith and credit of the Commission are hereby pledged for the prompt payment of the debt service thereon and for the fulfillment of all other undertakings of the Commission assumed by it to or for the benefit of the holders thereof. 12.2 FUNDS AND EXPENSES. The purpose of this compact shall include without limitation thereto all costs of any project or facility or any part thereof, including interest during a period of construction and a reasonable time thereafter and any incidental expenses (legal, engineering, fiscal, financial consultant and other expenses) connected

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with issuing and disposing of the bonds; all amounts required for the creation of an operating fund, construction fund, reserve fund, sinking fund, or other special funds; all other expenses connected with the planning, design, acquisition, construction, completion, improvement or reconstruction of any facility or any part thereof; and reimbursement of advances by the Commission or by others for such purposes and for working capital. 12.3 CREDIT EXCLUDED: OFFICERS, STATE AND MUNICIPAL. The Commission shall have no power to pledge the credit of any signatory party, or of any county or municipality, or to impose any obligation for payment of the bonds upon any signatory party or any county or municipality. Neither the commissioners nor any person executing the bonds shall be liable personally on the bonds of the Commission or be subject to any personal liability or accountability by reason of the issuance thereof. 12.4 FUNDING AND REFUNDING. Whenever the Commission deems it expedient, it may fund and refund its bonds and other obligations whether or not such bonds and obligations have matured. It may provide for the issuance, sale or exchange of refunding bonds for the purpose of redeeming or retiring any bonds (including the payment of any premium, duplicate interest or cash adjustment required in connection therewith) issued by the Commission or issued by any other issuing body, the proceeds of the sale of which have been applied to any facility acquired by the Commission or which are payable out of the revenues of any facility acquired by the Commission. Bonds may be issued partly to refund bonds and other obligations then outstanding, and partly for any other purpose of the Commission. All provisions of this compact applicable to the issuance of bonds are applicable to refunding bonds and to the issuance, sale or exchange thereof. 12.5 BONDS, AUTHORIZATION GENERALLY. Bonds and other indebtedness of the Commission shall be authorized by resolution of the Commission. The validity of the authorization and issuance of any bonds by the Commission shall not be dependent upon nor affected in any way by: (i) the disposition of bond proceeds by the Commission or by contract, commitment or action taken with respect to such proceeds; or (ii) the failure to complete any part of the project for which bonds are authorized to be issued. The Commission may issue bonds in one or more series and may provide for one or more consolidated bond issues, in such principal amounts and with such terms and provisions as the Commission may deem necessary. The bonds may be secured by a pledge of all or any part of the property, revenues and franchises under its control. Bonds may be issued by

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12.6 BONDS: RESOLUTIONS AND INDENTURES GENERALLY. The Commission may determine and enter into indentures providing for the principal amount, date or dates, maturities, interest rate, denominations, form, registration, transfer, interchange and other provisions of the bonds and coupons and the terms and conditions upon which the same shall be executed, issued, secured, sold, paid, redeemed, funded and refunded. The resolution of the Commission authorizing any bond or any indenture so authorized under which the bonds are issued may include all such covenants and other provisions other than any restriction on the regulatory powers vested in the Commission by this compact as the Commission may deem necessary or desirable for the issue, payment, security, protection or marketing of the bonds, including without limitation covenants and other provisions as to the rates or amounts of fees, rents and other charges to be charged or made for use of the facilities; the use, pledge, custody, securing, application and disposition of such revenues, of the proceeds of the bonds, and of any other moneys of the Commission; the operation, maintenance, repair and reconstruction of the facilities and the amounts which may be expended therefor; the sale, lease or other disposition of the facilities; the insuring of the facilities and of the revenues derived therefrom; the construction or other acquisition of other facilities; the issuance of additional bonds or other indebtedness; the rights of the bondholders and of any trustee for the bondholders upon default by the Commission or otherwise; and the modification of the provisions of the indenture and of the bonds. Reference on the face of the bonds to such resolution or indenture by its date of adoption or the apparent date on the face thereof is sufficient to incorporate all of the provisions thereof and of this compact into the body of the bonds and their appurtenant coupons. Each taker and subsequent holder of the bonds or coupons, whether the coupons are attached to or detached from the bonds, has recourse to all of the provisions of the indenture and of this compact and is bound thereby. 12.7 MAXIMUM MATURITY. No bond by its terms shall mature in more than fifty years from its own date and in the event any authorized issue is divided into two or more series or divisions, the maximum maturity date hereby authorized shall be calculated

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from the date on the face of each bond separately, irrespective of the fact that different dates may be prescribed for the bonds of each separate series or division of any authorized issue. 12.8 TAX EXEMPTION. All bonds issued by the Commission under the provisions of this compact and the interest thereof shall at all times be free and exempt from all taxation by or under authority of any of the signatory parties; except for transfer, inheritance and estate taxes. 12.9 INTEREST. Bonds shall bear interest at a rate determined by the Commission, payable annually or semi-annually. 12.10 PLACE OF PAYMENT. The Commission may provide for the payment of the principal and interest of bonds at any place or places within or without the signatory states, and in any specified lawful coin or currency of the United States of America. 12.11 EXECUTION. The Commission may provide for the execution and authentication of bonds by the manual, lithographed or printed facsimile signature of officers of the Commission, and by additional authentication by a trustee or fiscal agent appointed by the Commission. If any of the officers whose signatures or counter signatures appear upon the bonds or coupons cease to be officers before the delivery of the bonds or coupons, their signatures or counter signatures are nevertheless valid and of the same force and effect as if the officers had remained in office until the delivery of the bonds and coupons. 12.12 HOLDING OWN BONDS. The Commission shall have power out of any funds available therefor to purchase its bonds and may hold, cancel or resell such bonds. 12.13 SALE. The Commission may fix terms and conditions for the sale or other disposition of any authorized issue of bonds. The Commission may sell bonds at less than their par or face value but no issue of bonds may be sold at an aggregate price below the par or face value thereof if such sale would result in a net interest cost to the Commission calculated upon the entire issue so sold of more than six percent per annum payable semi-annually, according to standard tables of bonds values. All bonds issued and sold for cash pursuant to this act shall be sold on sealed proposals to the highest bidder. Prior to such sale, the Commission shall advertise for bids by publication of a notice of sale not less than ten days prior to the date of sale, at least once in a newspaper of general

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12.14 NEGOTIABILITY. All bonds issued under the provisions of this compact are negotiable instruments, except when registered in the name of a registered owner. 12.15 LEGAL INVESTMENTS. Bonds of the Commission shall be legal investments for savings banks, fiduciaries and public funds in each of the signatory states. 12.16 VALIDATION PROCEEDINGS. Prior to the issuance of any bonds, the Commission may institute a special proceeding to determine the legality of proceedings to issue the bonds and their validity under the laws of any of the signatory parties. Such proceeding shall be instituted and prosecuted in rem and the judgment rendered therein shall be conclusive against all persons whomsoever and against each of the signatory parties. 12.17 RECORDING. No indenture need be recorded or filed in any public office, other than the office of the Commission. The pledge of revenues provided in any indenture shall take effect forthwith as provided therein and irrespective of the date of receipt of such revenues by the Commission or the indenture trustee. Such pledge shall be effective as provided in the indenture without physical delivery of the revenues to the Commission or to the indenture trustee. 12.18 PLEDGED REVENUES. Bond redemption and interest payments shall, to the extent provided in the resolution or indenture, constitute a first, direct and exclusive charge and lien on all such rates, rents, tolls, fees and charges and other revenues and interest thereon received from the use and operation of the facility, and on any sinking or other funds created therefrom. All such rates, rents, tolls, fees,

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charges and other revenues, together with interest thereon, shall constitute a trust fund for the security and payment of such bonds and except as and to the extent provided in the indenture with respect to the payment therefrom of expenses for other purposes including administration, operation, maintenance, improvements or extension of the facilities or other purposes shall not be used or pledged for any other purpose so long as such bonds, or any of them are outstanding and unpaid. 12.19 REMEDIES. The holder of any bond may for the equal benefit and protection of all holders of bonds similarly situated: (a) by mandamus or other appropriate proceedings require and compel the performance of any of the duties imposed upon the Commission or assumed by it, its officers, agents or employees under the provisions of any indenture, in connection with the acquisition, construction, operation, maintenance, repair, reconstruction or insurance of the facilities, or in connection with the collection, deposit, investment, application and disbursement of the rates, rents, tolls, fees, charges and other revenues derived from the operation and use of the facilities, or in connection with the deposit, investment and disbursement of the proceeds received from the sale of bonds; or (b) by action or suit in a court of competent jurisdiction of any signatory party require the Commission to account as if it were the trustee of an express trust, or enjoin any acts or things which may be unlawful or in violation of the rights of the holders of the bonds. The enumeration of such rights and remedies does not, however, exclude the exercise or prosecution of any other rights or remedies available to the holders of bonds. 12.20 CAPITAL FINANCING BY SIGNATORY PARTIES: GUARANTEES. (a) The signatory parties will provide such capital funds required for projects of the Commission as may be authorized by their respective statutes in accordance with a cost sharing plan prepared pursuant to Article 11 of this compact; but nothing in this section shall be deemed to impose any mandatory obligation on any of the signatory parties other than such obligations as may be assumed by a signatory part in connection with a specific project or facility. (b) Bonds of the Commission, notwithstanding any other provision of this compact, may be executed and delivered to any duly authorized agency of any of the signatory parties without public offering and may be sold and resold with or without the guarantee of such signatory party, subject to and in accordance with the constitutions of the respective signatory parties.

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(c) The Commission may receive and accept, and the signatory parties may make loans, grants, appropriations, advances and payments of reimbursable or non-reimbursable funds or property in any form for the capital or operating purposes of the Commission. ARTICLE 13 PLAN, PROGRAM AND BUDGETS 13.1 COMPREHENSIVE PLAN. The Commission shall develop and adopt, and may from time to time review and revise a comprehensive plan for the immediate and long range development and use of the water resources of the basin. The plan shall include all public and private projects and facilities which are required, in the judgment of the Commission, for the optimum planning, development, conservation, utilization, management and control of water resources of the basin to meet present and future needs; provided that the plan shall include any projects required to conform with any present or future decree or judgment of any court of competent jurisdiction. The Commission may adopt a comprehensive plan or any revision thereof in such part or parts as it may deem appropriate, provided that before the adoption of the plan or any part or revision thereof the Commission shall consult with water users and interested public bodies and public utilities and shall consider and give due regard to the findings and recommendations of the various agencies of the signatory parties and their political subdivisions. The Commission shall conduct public hearings with respect to the comprehensive plan prior to the adoption of the plan or any part or revision thereof. 13.2 WATER RESOURCES PROGRAM. The Commission shall annually adopt a water resources program, based upon the comprehensive plan, consisting of the projects and facilities which the Commission proposes to be undertaken by the Commission and by other authorized governmental and private agencies, organizations and persons during the ensuing six years or such other reasonably foreseeable period as the Commission may determine. The water resources program shall include a systematic presentation of: 1) the quantity and quality of water resources needs for such period; 2) the existing and proposed projects and facilities required to satisfy such needs, including all public and private projects to be anticipated; 3) a separate statement of the projects proposed to be undertaken by the Commission during such period.

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13.3 ANNUAL CURRENT EXPENSE AND CAPITAL BUDGETS. (a) The Commission shall annually adopt a capital budget including all capital projects it proposes to undertake or continue during the budget period containing a statement of the estimated cost of each project and the method of financing thereof. (b) The Commission shall annually adopt a current expense budget for each fiscal year. Such budget shall include the Commission’s estimated expenses for administration, operation, maintenance and repairs, including a separate statement thereof for each project, together with its cost allocation. The total of such expenses shall be balanced by the Commission’s estimated revenues from all sources, including the cost allocations undertaken by any of the signatory parties in connection with any project. Following the adoption of the annual current expense budget by the Commission, the executive director of the Commission shall: 1) certify to the respective signatory parties the amounts due in accordance with existing cost sharing established for each project; and 2) transmit certified copies of such budget to the principal budget officer of the respective signatory parties at such time and in such manner as may be required under their respective budgetary procedures. The amount required to balance the current expense budget in addition to the aggregate amount of item (1) above and all other revenues available to the Commission shall be apportioned equitably among the signatory parties by unanimous vote of the Commission, and the amount of such apportionment to each signatory party shall be certified together with the budget. (c) The respective signatory parties covenant and agree to include the amounts so apportioned for the support of the current expense budget in their respective budgets next to be adopted, subject to such review and approval as may be required by their respective budgetary processes. Such amounts shall be due and payable to the Commission in quarterly installments during its fiscal year, provided that the Commission may draw upon its working capital to finance its current expense budget pending remittances by the signatory parties.

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ARTICLE 14 GENERAL PROVISIONS 14.1 AUXILIARY POWERS OF COMMISSION, FUNCTIONS OF COMMISSIONERS. (a) The Commission, for the purposes of this compact, may: 1) Adopt and use a corporate seal, enter into contracts, sue and be sued in all courts of competent jurisdiction; 2) Receive and accept such payments, appropriations, grants, gifts, loans, advances and other funds, properties and services as may be transferred or made available to it by any signatory party or by any other public or private corporation or individual, and enter into agreements to make reimbursement for all or part thereof; 3) Provide for, acquire and adopt detailed engineering, administrative, financial and operating plans and specifications to effectuate, maintain or develop any facility or project; 4) Control and regulate the use of facilities owned or operated by the commission; 5) Acquire, own, operate, maintain, control, sell and convey real and personal property and any interest therein by contract, purchase, lease, license, mortgage or otherwise as it may deem necessary for any project or facility, including any and all appurtenances thereto necessary, useful or convenient for such ownership, operation, control, maintenance or conveyance; 6) Have and exercise all corporate powers essential to the declared objects and purposes of the commission. (b) The commissioners, subject to the provisions of this compact, shall: 1) Serve as the governing body of the Commission, and exercise and discharge its powers and duties except as otherwise provided by or pursuant to this compact; 2) Determine the character of and the necessity for its obligations and expenditures and the manner in which they shall be incurred, allowed, and paid subject to any provisions of law specifically applicable to agencies or instrumentalities created by compact; 3) Provide for the internal organization and administration of the commission; 4) Appoint the principal officers of the Commission and delegate to and allocate among them administrative functions, powers and duties; 5) Create and abolish offices, employments and positions as it deems necessary for the purposes of the Commission, and subject to the

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provisions of this article, fix and provide for the qualifications, appointment, removal, term, tenure, compensation, pension and retirement rights of its officers and employees; 6) Let and execute contracts to carry out the powers of the Commission. 14.2 REGULATIONS: ENFORCEMENT. The Commission may: (a) Make and enforce reasonable rules and regulations for the effectuation, application and enforcement of this compact; and it may adopt and enforce practices and schedules for or in connection with the use, maintenance and administration of projects and facilities it may own or operate and any product or service rendered thereby; provided that any rule or regulation, other than one which deals solely with the internal management of the Commission, shall be adopted only after public hearing and shall not be effective unless and until filed in accordance with the law of the respective signatory parties applicable to administrative rules and regulations generally; and (b) Designate any officer, agent or employee of the Commission to be an investigator or watchman and such person shall be vested with the powers of a peace officer of the state in which he is duly assigned to perform his duties. 14.3 TAX EXEMPTION. The Commission, its property, functions, and activities shall be exempt from taxation by or under the authority of any of the signatory parties or any political subdivision thereof; provided that in lieu of property taxes the Commission shall, as to specific projects, make payments to local taxing districts in annual amounts which shall equal the taxes lawfully assessed upon property for the tax year next prior to its acquisition by the Commission for a period of ten years. The nature and amount of such payments shall be reviewed by the Commission at the end of ten years, and from time to time thereafter, upon reasonable notice and opportunity to be heard to the affected taxing district, and the payments may be thereupon terminated or continued in such reasonable amount as may be necessary or desirable to take into account hardships incurred and benefits received by the taxing jurisdiction which are attributable to the project. 14.4 MEETINGS: PUBLIC HEARING: RECORDS, MINUTES. (a) All meetings of the Commission shall be open to the public.

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(b) The Commission shall conduct at least one public hearing prior to the adoption of the comprehensive plan, water resources program, annual capital and current expense budgets, the letting of any contract for the sale or other disposition by the Commission of hydroelectric energy or water resources to any person, corporation or entity, and in all other cases, wherein this compact requires a public hearing. Such hearing shall be held upon at least ten days public notice given by posting at the offices of the Commission. The Commission shall also provide forthwith for distribution of such notice to the press and by the mailing of a copy thereof to any person who shall request such notices. (c) The minutes of the Commission shall be a public record open to inspection at its offices during regular business hours. 14.5 OFFICERS GENERALLY. (a) The officers of the Commission shall consist of an executive director and such additional officers, deputies and assistants as the Commission may determine. The executive director shall be appointed and may be removed by the affirmative vote of a majority of the full membership of the Commission. All other officers and employees shall be appointed by the executive director under such rules of procedure as the Commission may determine. (b) In the appointment and promotion of officers and employees for the Commission, no political, racial, religious or residence test or qualification shall be permitted or given consideration, but all such appointments and promotions shall be solely on the basis of merit and fitness. Any officer or employee of the Commission who is found by the Commission to be guilty of a violation of this section shall be removed from office by the Commission. 14.6 OATH OF OFFICE. An oath of office in such form as the Commission shall prescribe shall be taken, subscribed and filed with the Commission by the executive director and by each officer appointed by him not later than fifteen days after the appointment. 14.7 BOND. Each officer shall give such bond and in such form and amount as the Commission may require for which the commission may pay the premium. 14.8 PROHIBITED ACTIVITIES. (a) No commissioner, officer or employee shall:

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1) be financially interested, either directly or indirectly, in any contract, sale, purchase, lease or transfer of real or personal property to which the Commission is a party; 2) solicit or accept money or any other thing of value in addition to the compensation or expenses paid him by the Commission for services performed within the scope of his official duties; 3) offer money or any thing of value for or in consideration of obtaining an appointment, promotion or privilege in his employment with the Commission. (b) Any officer or employee who shall willfully violate any of the provisions of this section shall forfeit his office or employment. (c) Any contract or agreement knowingly made in contravention of this section is void. (d) Officers and employees of the Commission shall be subject in addition to the provisions of this section to such criminal and civil sanctions for misconduct in office as may be imposed by federal law and the law of the signatory state in which such misconduct occurs. 14.9 PURCHASING. Contracts for the construction, reconstruction or improvement of any facility when the expenditure required exceeds ten thousand dollars and contracts for the purchase of services, supplies, equipment and materials when the expenditure required exceeds two thousand five hundred dollars shall be advertised and let upon sealed bids to the lowest responsible bidder. Notice requesting such bids shall be published in a manner reasonably likely to attract prospective bidders, which publication shall be made at least ten days before bids are received and in at least two newspapers of general circulation in the basin. The Commission may reject any and all bids and readvertise in its discretion. If after rejecting bids the Commission determines and resolves that in its opinion the supplies, equipment and materials may be purchased at a lower price in the open market, the Commission may give each responsible bidder an opportunity to negotiate a price and may proceed to purchase the supplies, equipment and materials in the open market at a negotiated price which is lower than the lowest rejected bid of a responsible bidder, without further observance of the provisions requiring bids or notice. The Commission shall adopt rules and regulations to provide for purchasing from the lowest responsible bidder when sealed bids, notice and publications are not required by this section. The Commission may suspend and waive the provisions of this section requiring competitive bids whenever:

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1) the purchase is to be made from or the contract to be made with the federal or any state government or any agency or political subdivision thereof or pursuant to any open end bulk purchase contract of any of them; 2) the public exigency requires the immediate delivery of the articles or performance of the service; 3) only one source of supply is available; 4) the equipment to be purchased is of a technical nature and the procurement thereof without advertising is necessary in order to assure standardization of equipment and interchangeability of parts in the public interest; or 5) services are to be provided of a specialized or professional nature. 14.10 INSURANCE. The Commission may self-insure or purchase insurance and pay the premiums therefor against loss or damage to any of its properties; against liability for injury to persons or property; and against loss of revenue from any cause whatsoever. Such insurance coverage shall be in such form and amount as the Commission may determine, subject to the requirements of any agreement arising out of the issuance of bonds by the Commission. 14.11 ANNUAL INDEPENDENT AUDIT. (a) As soon as practical after the closing of the fiscal year, an audit shall be made of the financial accounts of the Commission. The audit shall be made by qualified certified public accountants selected by the Commission, who have no personal interest direct or indirect in the financial affairs of the Commission or any of its officers or employees. The report of audit shall be prepared in accordance with accepted accounting practices and shall be filed with the chairman and such other offices as the Commission shall direct. Copies of the report shall be distributed to each commissioner and shall be made available for public distribution. (b) Each signatory party by its duly authorized officers shall be entitled to examine and audit at any time all of the books, documents, records, files and accounts and all other papers, things or property of the Commission. The representatives of the signatory parties shall have access to all books, documents, records, accounts, reports, files and all other papers, things or property belonging to or in use by the Commission and necessary to facilitate the audit and they shall be afforded full facilities for verifying transactions with the balances or securities held by depositaries, fiscal agents and custodians.

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(c) The financial transactions of the Commission shall be subject to audit by the general accounting office in accordance with the principles and procedures applicable to commercial corporate transactions and under such rules and regulations as may be prescribed by the comptroller general of the United States. The audit shall be conducted at the place or places where the accounts of the Commission are kept. (d) Any officer or employee who shall refuse to give all required assistance and information to the accountants selected by the Commission or to the authorized officers of any signatory party or who shall refuse to submit to them for examination such books, documents, records, files, accounts, papers, things or property as may be requested shall forfeit his office. 14.12 REPORTS. The Commission shall make and publish an annual report to the legislative bodies of the signatory parties and to the public reporting on its programs, operations and finances. It may also prepare, publish and distribute such other public reports and informational materials as it may deem necessary or desirable. 14.13 GRANTS, LOANS OR PAYMENTS BY STATES OR POLITICAL SUBDIVISIONS. (a) Any or all of the signatory parties or any political subdivision thereof may: 1) Appropriate to the Commission such funds as may be necessary to pay preliminary expenses such as the expenses incurred in the making of borings, and other studies of subsurface conditions, in the preparation of contracts for the sale of water and in the preparation of detailed plans and estimates required for the financing of a project; 2) Advance to the Commission, either as grants or loans, such funds as may be necessary or convenient to finance the operation and managements of or construction by the Commission of any facility or project; 3) Make payments to the Commission for benefits received or to be received from the operation of any of the projects or facilities of the Commission. (b) Any funds which may be loaned to the Commission either by a signatory party or a political subdivision thereof shall be repaid by the Commission through the issuance of bonds or out of other income of the Commission, such repayment to be made within such period and upon such terms as may be agreed upon between the Commission and the signatory party or political subdivision making the loan.

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14.14 CONDEMNATION PROCEEDINGS. (a) The Commission shall have the power to acquire by condemnation the fee or any lesser interest in lands, lands lying under water, development rights in land, riparian rights, water rights, waters and other real or personal property within the basin for any project or facility authorized pursuant to this compact. This grant of power of eminent domain includes but is not limited to the power to condemn for the purposes of this compact any property already devoted to a public use, by whomsoever owned or held, other than property of a signatory party and any property held, constructed, operated or maintained in connection with a diversion authorized by a United States Supreme Court decree. Any condemnation of any property or franchises owned or used by a municipal or privately owned public utility, unless the affected public utility facility is to be relocated or replaced, shall be subject to the authority of such state board, Commission or other body as may have regulatory jurisdiction over such public utility. (b) Such power of condemnation shall be exercised in accordance with the provi- sions of any federal law applicable to the Commission; provided that if there is no such applicable federal law, condemnation proceeding shall be in accordance with the provisions of such general state condemnation law as may be in force in the signatory state in which the property is located. (c) Any award or compensation for the taking of property pursuant to this article shall be paid by the Commission, and none of the signatory parties nor any other agency, instrumentality or political subdivision thereof shall be liable for such award or compensation. 14.15 CONVEYANCE OF LANDS AND RELOCATION OF PUBLIC FACILITIES. (a) The respective officers, agencies, departments, Commissions or bodies having jurisdiction and control over real and personal property by the signatory parties are authorized and empowered to transfer and convey in accordance with the laws of the respective parties to the Commission any such property as may be necessary or convenient to the effectuation of the authorized purposes of the Commission. (b) Each political subdivision of each of the signatory parties is authorized and empowered, notwithstanding any contrary provision of law, to grant and convey to the Commission, upon the Commission’s request, any real property or any interest therein owned by such political subdivision including lands lying under water and lands already devoted to public use which may be necessary or convenient to the effectuation of the authorized purposes of the Commission.

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(c) Any highway, public utility or other public facility which will be dislocated by reason of a project deemed necessary by the Commission to effectuate the authorized purposes of this compact shall be relocated and the cost thereof shall be paid in accordance with the law of the state in which the facility is located; provided that the cost of such relocation payable by the Commission shall not in any event exceed the expenditure required to serve the public convenience and necessity. 14.16 RIGHTS OF WAY. Permission is hereby granted to the Commission to locate, construct and maintain any aqueducts, lines, pipes, conduits and auxiliary facilities authorized to be acquired, constructed, owned, operated or maintained by the commission in, over, under or across any streets and highways now or hereafter owned, opened or dedicated to or for public use, subject to such reasonable conditions as the highway department of the signatory party may require. 14.17 PENAL SANCTION. Any person, association or corporation who violates or attempts or conspires to violate any provision of this compact or any rule, regulation or order of the Commission duly made, promulgated or issued pursuant to the compact in addition to any other remedy, penalty or consequence provided by law shall be punishable as may be provided by statute of any of the signatory parties within which the offense is committed; provided that in the absence of such provision any such person, association or corporation shall be liable to a penalty of not less than $50 nor more than $1000 for each such offense to be fixed by the court which the Commission may recover in it own name in any court of competent jurisdiction, and in a summary proceeding where available under the practice and procedure of such court. For the purposes of this section in the event of a continuing offense each day of such violation, attempt or conspiracy shall constitute a separate offense. 14.18 TORT LIABILITY. The Commission shall be responsible for claims arising out of the negligent acts or omission of its officers, agents and employees only to the extent and subject to the procedures prescribed by law generally with respect to officers, agents and employees of the government of the United States. 14.19 EFFECT ON RIPARIAN RIGHTS. Nothing contained in this compact shall be construed as affecting or intending to affect or in any way to interfere with the law of the respective signatory parties relating to riparian rights.

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14.20 AMENDMENTS AND SUPPLEMENTS. Amendments and supplements to this compact to implement the purposes thereof may be adopted by legislative action of any of the signatory parties concurred in by all of the others. 14.21 CONSTRUCTION AND SEVERABILITY. The provisions of this act and of agreements thereunder shall be severable and if any phrase, clause, sentence or provision of this compact or such agreement is declared to be unconstitutional or the applicability thereof to any signatory party, agency or person is held invalid, the constitutionality of the remainder of this compact or such agreement and the applicability thereof to any other signatory party, agency, person or circumstance shall not be affected thereby. It is the legislative intent that the provisions of this compact be reasonably and liberally construed. 14.22 EFFECTIVE DATE: EXECUTION. This compact shall become binding and effective thirty days after the enactment of concurring legislation by the federal government, the states of Delaware, New Jersey and New York, and the Commonwealth of Pennsylvania. The compact shall be signed and sealed in six duplicate original copies by the respective chief executives of the signatory parties. One such copy shall be filed with the Secretary of State of each of the signatory parties or in accordance with the laws of the state in which the filing is made, and one copy shall be filed and retained in the Archives of the Commission upon its organization. The signatures shall be affixed and attested under the following form: IN WITNESS WHEREOF, and in evidence of the adoption and enactment into law of this compact by the Congress and legislatures, respectively, of the signatory parties, the President of the United States and the respective Governors do hereby, in accordance with authority conferred by law, sign this compact in six duplicate original copies, as attested by the respective Secretaries of State, and have caused the seals of the United States and of the respective states to be hereunto affixed this _____ day of _____ 19_____.

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Appendix B-15: Great Lakes Basin Compact Public Law No. 90–419 82 Statutes at Large 414 (1968) The party states solemnly agree:

ARTICLE I The purposes of this compact are, through means of joint or cooperative action: 1. To promote the orderly, integrated, and comprehensive development, use, and conservation of the water resources of the Great Lakes Basin (hereinafter called the Basin). 2. To plan for the welfare and development of the water resources of the Basin as a whole as well as for those portions of the Basin which may have problems of special concern. 3. To make it possible for the states of the Basin and their people to derive the maximum benefit from utilization of public works, in the form of navigational aids or otherwise, which may exist or which may be constructed from time to time. 4. To advise in securing and maintaining a proper balance among industrial, commercial, agricultural, water supply, residential, recreational, and other legitimate uses of the water resources of the Basin. 5. To establish and maintain an intergovernmental agency [to] the end that the purposes of this compact may be accomplished more effectively. ARTICLE II A. This compact shall enter into force and become effective and binding when it has been enacted by the legislature of any four of the States of Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, and Wisconsin and thereafter shall enter into force and become effective and binding as to any other of said states when enacted by the legislature thereof. B. The Province of Ontario and the Province of Quebec, or either of them, may become states party to this compact by taking such action as their laws and the laws of the Government of Canada may prescribe for adherence thereto. For the purposes of this compact the word “state” shall be construed to include a Province of Canada. ARTICLE III The Great Lakes Commission created by Article IV of this compact shall exercise

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its powers and perform its functions in respect to the Basin which, for the purposes of this compact shall consist of so much of the following as may be within the party states: 1. Lakes Erie, Huron, Michigan, Ontario, St. Clair, Superior, and the St. Lawrence River, together with any and all natural or manmade water interconnections between or among them. 2. All rivers, ponds, lakes, streams, and other watercourses which, in their natural state or in their prevailing conditions, are tributary to Lakes Erie, Huron, Michigan, Ontario, St. Clair, and Superior or any of them or which comprise part of any watershed draining into any of said lakes. ARTICLE IV A. There is hereby created an agency of the party states to be known as The Great Lakes Commission (hereinafter called the Commission). In that name the Commission may sue and be sued, acquire, hold and convey real and personal property and any interest therein. The Commission shall have a seal with the words, “The Great Lakes Commission” and such other design as it may prescribe engraved thereon by which it shall authenticate its proceedings. Transactions involving real or personal property shall conform to the laws of the state in which the property is located, and the Commission may by by-laws provide for the execution and acknowledgement of all instruments in its behalf. B. The Commission shall be composed of not less than three commissioners nor more than five commissioners from each party state designated or appointed [in] accordance with the law of the state which they represent and serving and subject to removal in accordance with such law. C. Each state delegation shall be entitled to three votes in the Commission. The presence of commissioners from a majority of the party states shall constitute a quorum for the transaction of business at any meeting of the Commission. Actions of the Commission shall be by a majority of the votes cast except that any recommendations made pursuant to Article VI of this compact shall require an affirmative vote of not less than a majority of the votes cast from each of a majority of the states present and voting. D. The commissioners of any two or more party states may meet separately to consider problems of particular interest to their states but no action taken at any such meeting shall be deemed an action of the Commission unless and until the Commission shall specifically approve the same.

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E. In the absence of any commissioner, his vote may be cast by another representative or commissioner of his state provided that said commissioner or other representative casting said vote shall have a written proxy in proper form as may be required by the Commission. F. The Commission shall elect annually from among its members a chairman and vice-chairman. The Commission shall appoint an Executive Director who shall also act as secretary-treasurer, and who shall be bonded in such amount as the Commission may require. The Executive Director shall serve at the pleasure of the Commission and at such compensation and under such terms and conditions as may be fixed by it. The Executive Director shall be custodian of the records of the Commission with authority to affix the Commission’s official seal and to attest to and certify such records or copies thereof. G. The Executive Director, subject to the approval of the Commission in such cases as its by-laws may provide, shall appoint and remove or discharge such personnel as may be necessary for the performance of the Commission’s function. Subject to the aforesaid approval, the Executive Director may fix their compensation, define their duties, and require bonds of such of them as the Commission may designate. H. The Executive Director, on behalf of, as trustee for, and with the approval of the Commission, may borrow, accept, or contract for the services of personnel from any state or government or any subdivision or agency thereof, from any inter-governmental agency, or from any institution, person, firm or corporation; and may accept for any of the Commissions purposes and functions under this compact any and all donations, gifts, and grants of money, equipment, supplies, materials, and services from any state or government of any subdivision or agency thereof or inter-governmental agency or from any institution, person, firm or corporation and may receive and utilize the same. I. The Commission may establish and maintain one or more offices for the transacting of its business and for such purposes the Executive Director, on behalf of, as trustee for, and with the approval of the Commission, may acquire, hold and dispose of real and personal property necessary to the performance of its functions. J. No tax levied or imposed by any party state or any political subdivision thereof shall be deemed to apply to property, transactions, or income of the Commission. K. The Commission may adopt, amend and rescind by-laws, rules and regulations for the conduct of its business.

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L. The organization meeting of the Commission shall be held within six months from the effective date of the compact. M. The Commission and its Executive Director shall make available to the party states any information within its possession and shall always provide free access to its records by duly authorized representatives of such party states. N. The Commission shall keep a written record of its meetings and proceedings and shall annually make a report thereof to be submitted to the duly designated official of each party state. O. The Commission shall make and transmit annually to the legislature and Governor of each party state a report covering the activities of the Commission for the preceding year and embodying such recommendations as may have been adopted by the Commission. The Commission may issue such additional reports as it may deem desirable. ARTICLE V A. The members of the Commission shall serve without compensation, but the expenses of each commission shall be met by the state which he represents in accordance with the law of that state. All other expenses incurred by the Commission in the course of exercising the powers conferred upon it by this compact, unless met in some other manner specifically provided by this compact, shall be paid by the Commission out of its own funds. B. The Commission shall submit to the executive head or designated officer of each party state a budget of its estimated expenditures for such period as may be required by the laws of that state for presentation to the legislature thereof. C. Each of the Commission’s budgets of estimated expenditures shall contain specific recommendations of the amount or amounts to be appropriated by each of the party states. Detailed commission budgets shall be recommended by a majority of the votes cast, and the costs shall be allocated equitably among the party states in accordance with their respective interests. D. The Commission shall not pledge the credit of any party state. The Commission may meet any of its obligations in whole or in part with funds available to it under Article IV(H) of this compact, provided that the Commission takes specific action setting aside such funds prior to the incurring of any obligations to be met in whole or in part in this manner. Except where the Commission makes use of funds available to it under Article IV(H) hereof, the Commission shall not incur any obligations prior to the allotment of funds by the party states adequate to meet the same.

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E. The Commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the Commission shall be subject to the audit and accounting procedures established under the by-laws. However, all receipts and disbursements of funds handled by the Commission shall be audited yearly by a qualified public accountant and the report of the audit shall be included in and become a part of the annual report of the Commission. F. The accounts of the Commission shall be open at any reasonable time for inspection by such agency, representative of the party states as may be duly constituted for that purpose and by others who may be authorized by the Commission. ARTICLE VI The Commission shall have power to: A. Collect, correlate, interpret, and report on data relating to the water resources and the use thereof in the Basin or any portion thereof. B. Recommend methods for the orderly, efficient, and balanced development, use and conservation of the water resources of the Basin or any portion thereof to the party state and to any other governments or agencies having interests in or jurisdiction over the Basin or any portion thereof. C. Consider the need for and desirability of public works and improvements relating to the water resources in the Basin or any portion thereof. D. Consider means of improving navigation and port facilities in the Basin or any other portion thereof. E. Consider means of improving and maintaining the fisheries of the Basin or any portion thereof. F. Recommend policies relating to water resources including the institution and alteration of flood plain and other zoning laws, ordinances and regulations. G. Recommend uniform or other laws, ordinances, or regulations relating to the development, use and conservation of the Basin’s water resources to the party states or any of them and to other governments, political subdivisions, agencies of inter-governmental bodies having interests or in jurisdiction sufficient to affect conditions in the Basin or any portion thereof. H. Consider and recommend amendments or agreements supplementary to this compact to the party states or any of them, and assist in the formulation and drafting of such amendments or supplementary agreements.

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I. Prepare and publish reports, bulletins, and publications appropriate to this work and fix reasonable sales prices therefore. J. With respect to the water resources of the Basin or any portion thereof, recommend agreements between the governments of the United States and Canada. K. Recommend mutual arrangements expressed by concurrent or reciprocal legislation on the part of Congress and the Parliament of Canada including but not limited to such agreements and mutual arrangements as are provided for by Article XIII of the Treaty of 1909 Relating to Boundary Waters and Questions Arising Between the United States and Canada. (Treaty Series, No 548). L. Cooperate with the governments of the United States and of Canada, the party states and any public or private agencies or bodies having interests in or jurisdiction sufficient to affect the Basin or any portion thereof. M. At the request of the United States, or in the event that a Province shall be a party state, at the request of the Government of Canada, assist in the negotiation and formulation of any treaty or other mutual agreement between the United States and Canada with reference to the Basin or any portion thereof. N. Make any recommendation and do all things necessary and proper to carry out the powers conferred upon the Commission by this compact, provided that no action of the Commission shall have the force of law in, or be binding upon, any party state. ARTICLE VII Each party state agrees to consider the action the Commission recommends in respect to: A. Stabilization of lake levels. B. Measures for combating pollution, beach erosion, floods and shore inundation. C. Uniformity in navigation regulations within the constitutional powers of the states. D. Proposed navigation aids and improvements. E. Uniformity or effective coordinating action in fishing laws and regulations and cooperative action to eradicate destructive and parasitical forces endangering the fisheries, wildlife and other water resources. F. Suitable hydroelectric power developments.

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G. Cooperative programs for control of soil and bank erosion for the general improvement of the Basin. H. Diversion of waters from and into the Basin. I. Other measures the Commission may recommend to the states pursuant to Article VI of this compact. ARTICLE VIII This compact shall continue in force and remain upon each party state until renounced by the act of the legislature of such state, in such form and manner as it may choose and as may be valid and effective to repeal a statute of said state, provided that such renunciation shall not become effective until six months after notice of such action shall have been officially communicated in writing to the executive head of the other party states. ARTICLE IX It is intended that the provisions of this compact shall be reasonably and liberally construed to effectuate the purposes thereof. The provisions of this compact shall be severable and if any phrase, clause, sentence or provision of this compact is declared to be contrary to the constitution of any party state or of the United States, or in the case of a Province, to the British North America Act of 1867 as amended, or the applicability thereof to any state, agency, person or circumstances is held invalid, the constitutionality of the remainder of this compact and the applicability thereof to any state, agency, person or circumstance shall not be affected thereby, provided further that if this compact shall be held contrary to the constitution of the United States, or in the case of a Province, to the British North America Act of 1867 as amended, or of any party state, the compact shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters.

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Appendix B-16: Jennings Randolph Lake Project Compact Public Law No: 104–176 110 Statutes at Large 1557 (1996)

PREAMBLE Whereas, The signatory parties hereto desire to provide for joint natural resource management and enforcement of laws and regulations pertaining to natural resources and boating at the Jennings Randolph Lake Project lying in Garrett County, Maryland, and Mineral County, West Virginia, for which they have a joint responsibility; and they declare as follows: a. The Congress, under Public Law 87–874, authorized the development of the Jennings Randolph Lake Project for the North Branch of the Potomac River substantially in accordance with House Document Number 469, 87th Congress, 2nd Session for flood control, water supply, water quality and recreation; and b. Section 4 of the Flood Control Act of 1944 (CH 665, 58 STAT.534) provides that the chief of engineers, under the supervision of the secretary of war (now secretary of the army), is authorized to construct, maintain and operate public park and recreational facilities in reservoir areas under control of such secretary for the purpose of boating, swimming, bathing, fishing and other recreational purposes, so long as the same is not inconsistent with the laws for the protection of fish and wildlife of the state(s) in which such area is situated; and c. Pursuant to the authorities cited above, the U.S. army engineer district (Baltimore), hereinafter “District,” did construct and now maintains and operates the Jennings Randolph Lake Project; and d. The National Environmental Policy Act of 1969 (P.L. 91–190) encourages productive and enjoyable harmony between man and his environment, promotes efforts which will stimulate the health and welfare of man, and encourages cooperation with state and local governments to achieve these ends; and e. The Fish and Wildlife Coordination Act (16 U.S.C. 661–666C) provides for the consideration and coordination with other features of water-resource development programs through the effectual and harmonious planning, development, maintenance and coordination of wildlife conservation and rehabilitation; and

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f. The District has fisheries and wildlife plans as part of the District’s project operational plan management; and g. In the respective states, the Maryland department of natural resources (hereinafter referred to as Maryland DNR) and the West Virginia division of natural resources (hereinafter referred to as West Virginia DNR) are primarily responsible for providing a system of control, propagation, management, protection and regulation of natural resources and boating in Maryland and West Virginia and the enforcement of laws and regulations pertaining to those resources as provided in annotated code of Maryland natural resources article and West Virginia chapter 20, respectively, and the successors thereof; and h. The District, the Maryland department of natural resources and the West Virginia division of natural resources are desirous of conserving, perpetuating and improving fish and wildlife resources and recreational benefits of the Jennings Randolph Lake Project; and i. The District and the states of Maryland and West Virginia wish to implement the aforesaid acts and responsibilities through this compact and they each recognize that consistent enforcement of the natural resources and boating laws and regulations can best be achieved by entering this compact: Now, therefore The states of West Virginia and Maryland, with the concurrence of the United States department of the army, corps of engineers, hereby solemnly covenant and agree with each other, upon enactment of concurrent legislation by the Congress of the United States and by the respective state legislatures, to the Jennings Randolph Lake Project Compact, which consists of this preamble and the articles that follow: ARTICLE I NAME, FINDINGS AND PURPOSE. a. This compact shall be known and may be cited as the Jennings Randolph Lake Project Compact. b. The legislative bodies of the respective signatory parties, with the concurrence of the U.S. army corps of engineers, hereby find and declare: 1. The water resources and project lands of the Jennings Randolph Lake Project are affected with local, state, regional and national interest, and the planning, conservation, utilization, protection and management of these resources, under appropriate arrangements for intergovernmental cooperation, are public purposes of the respective signatory parties; and

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2. The lands and waters of the Jennings Randolph Lake Project are subject to the sovereign rights and responsibilities of the signatory parties, and it is the purpose of this compact that, notwithstanding any boundary between Maryland and West Virginia that preexisted the creation of Jennings Randolph Lake, the parties will have and exercise concurrent jurisdiction over any lands and waters of the Jennings Randolph Lake Project concerning natural resources and boating laws and regulations in the common interest of the people of the region. ARTICLE II DISTRICT RESPONSIBILITIES The District, within the Jennings Randolph Lake Project, a. Acknowledges that the West Virginia division of natural resources and the Maryland department of natural resources have authorities and responsibilities in the establishment, administration and enforcement of the natural resources and boating laws and regulations applicable to this project: Provided, That the laws and regulations promulgated by the states support and implement, where applicable, the intent of the rules and regulations governing public use of water resources development projects administered by the chief of engineers in Title 36, Chapter III, Part 327, Code of Federal Regulations, b. Agrees to practice those forms of resource management as determined jointly by the District, the West Virginia division of natural resources and the Maryland department of natural resources to be beneficial to natural resources and which will enhance public recreational opportunities compatible with other authorized purposes of the project, c. Agrees to consult with the West Virginia division of natural resources and the Maryland department of natural resources prior to the issuance of any permits for activities or special events which would include, but not necessarily be limited to, fishing tournaments, training exercises, regattas, marine parades, placement of ski ramps, slalom water ski courses and the establishment of private markers or lighting. All such permits issued by the District will require the permittee to comply with all state laws and regulations, d. Agrees to consult with the West Virginia division of natural resources and the Maryland department of natural resources regarding any recommendations for regulations affecting natural resources including, but not limited to, hunting, trapping, fishing or boating at the Jennings Randolph Lake Project which the District believes might be desirable for reasons of public safety, administration, or public use and enjoyment,

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e. Agrees to consult with the West Virginia division of natural resources and the Maryland department of natural resources relative to the marking of the lake with buoys, aids to navigation, regulatory markers and establishing and posting of speed limits, no wake zones, restricted or other control areas and to provide, install and maintain such buoys, aids to navigation and regulatory markers as are necessary for the implementation of the District’s operational management plan. All buoys, aids to navigation and regulatory markers to be used shall be marked in conformance with the uniform state waterway marking system, f. Agrees to allow hunting, trapping, boating and fishing by the public in accordance with the laws and regulations relating to the Jennings Randolph Lake Project. g. Agrees to provide, install and maintain public ramps, parking areas, courtesy docks, etc., as provided for by the approved Corps of Engineers master plan, and h. Agrees to notify the West Virginia division of natural resources and the Maryland department of natural resources of each reservoir drawdown prior thereto excepting drawdown for the reestablishment of normal lake levels following flood control operations and drawdown resulting from routine water control management operations described in the reservoir regulation manual including releases requested by water supply owners and normal water quality releases. In case of emergency releases or emergency flow curtailments, telephone or oral notification will be provided. The District reserves the right, following issuance of the above notice, to make operational and other tests which may be necessary to ensure the safe and efficient operation of the dam, for inspection and maintenance purposes, and for the gathering of water quality data both within the impoundment and in the Potomac River downstream from the dam. ARTICLE III STATE RESPONSIBILITIES The state of West Virginia and the state of Maryland agree: a. That each state will have and exercise concurrent jurisdiction with the District and the other state for the purpose of enforcing the civil and criminal laws of the respective states pertaining to natural resources and boating laws and regulations over any lands and waters of the Jennings Randolph Lake Project; b. That existing natural resources and boating laws and regulations already in effect in each state shall remain in force on the Jennings Randolph Lake Project until either state amends, modifies or rescinds its laws and regulations;

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c. That the agreement for fishing privileges dated the twenty-fourth day of June, one thousand nine hundred eighty-five, between the state of West Virginia and the state of Maryland, as amended, remains in full force and effect; d. To enforce the natural resources and boating laws and regulations applicable to the Jennings Randolph Lake Project; e. To supply to the District with the name, address and telephone number of the persons to be contacted when any drawdown except those resulting from normal regulation procedures occurs; f. To inform the reservoir manager of all emergencies or unusual activities occurring on the Jennings Randolph Lake Project; g. To provide training to District employees in order to familiarize them with natural resources and boating laws and regulations as they apply to the Jennings Randolph Lake Project; and h. To recognize that the District and other federal agencies have the right and responsibility to enforce, within the boundaries of the Jennings Randolph Lake Project, all applicable federal laws, rules and regulations so as to provide the public with safe and healthful recreational opportunities and to provide protection to all federal property within the project. ARTICLE IV MUTUAL COOPERATION Pursuant to the aims and purposes of this compact, the state of West Virginia, the state of Maryland and the District mutually agree that representatives of their natural resource management and enforcement agencies will cooperate to further the purposes of this compact. This cooperation includes, but is not limited to, the following: a. Meeting jointly at least once annually, and providing for other meetings as deemed necessary for discussion of matters relating to the management of natural resources and visitor use on lands and waters within the Jennings Randolph Lake Project; b. Evaluating natural resources and boating, to develop natural resource and boating management plans and to initiate and carry out management programs; c. Encouraging the dissemination of joint publications, press releases or other public information and the interchange between parties of all pertinent agency policies and objectives for the use and perpetuation of natural resources of Jennings Randolph Lake Project; and

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d. Entering into working arrangements as occasion demands for the use of lands, waters, construction and use of buildings and other facilities at the project. ARTICLE V GENERAL PROVISIONS a. Each and every provision of this compact is subject to the laws of the states of West Virginia and Maryland and the laws of the United States, and the delegated authority in each instance. b. The enforcement and applicability of natural resources and boating laws and regulations referenced in this compact shall be limited to the lands and waters of the Jennings Randolph Lake Project, including, but not limited to, the prevailing reciprocal fishing laws and regulations between the states of West Virginia and Maryland. c. Nothing in this compact shall be construed as obligating any party hereto to the expenditure of funds or the future payment of money in excess of appropriations authorized by law. d. The provisions of this compact shall be severable, and if any phrase, clause, sentence or provision of the Jennings Randolph Lake Project Compact is declared to be unconstitutional or inapplicable to any signatory party or agency of any party, the constitutionality and applicability of the compact shall not be otherwise affected as to any other provision, party or agency. It is the legislative intent that the provisions of this compact be reasonably and liberally construed to effectuate the stated purposes of the compact. e. No member of or delegate to Congress, or signatory shall be admitted to any share or part of this compact, or to any benefit that may arise therefrom; but this provision shall not be construed to extend to this agreement if made with a corporation for its general benefit. f. When this compact has been ratified by the Legislature of each respective state, when the governor of West Virginia and the governor of Maryland have executed this compact on behalf of their respective states and have caused a verified copy thereof to be filed with the secretary of state of each respective state, when the Baltimore district engineer of the U.S. army corps of engineers has executed its concurrence with this compact, and when this compact has been consented to by the Congress of the United States, then this compact shall become operative and effective. g. Either state may, by legislative act, after one year’s written notice to the other, withdraw from this compact, the U.S. army corps of engineers may withdraw

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h. This compact may be amended from time to time. Each proposed amendment shall be presented in resolution form to the governor of each state and the Baltimore district engineer of the U.S. army corps of engineers. An amendment to this compact shall become effective only after it has been ratified by the legislatures of both signatory states and concurred in by the U.S. army corps of engineers, Baltimore district. Amendments shall become effective thirty days after the date of the last concurrence or ratification.

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Appendix B-17: Kansas-Nebraska Big Blue River Compact Public Law No. 92–308 86 Statutes at Large 193 (1972)

PREAMBLE The state of Kansas and the state of Nebraska, acting through their duly authorized compact representatives, Keith S. Krause for the state of Kansas and Dan S. Jones, Jr., for the state of Nebraska, after negotiations participated in by Elmo W. McClendon, appointed by the president as the representative of the United States of America, and in accordance with the consent to such negotiations granted by an act of congress of the United States of America, approved June 3, 1960, Public Law 489, 86th congress, 2nd session, have agreed that the major purposes of this compact concerning the waters of the Big Blue river and its tributaries are: A. To promote interstate comity between the states of Nebraska and Kansas; B. To achieve an equitable apportionment of the waters of the Big Blue river basin between the two states and to promote orderly development thereof; and C. To encourage continuation of the active pollution-abatement programs in each of the two states and to seek further reduction in both natural and man-made pollution of the waters of the Big Blue river basin. To accomplish these purposes, the said states have agreed as set forth in the following articles. ARTICLE I DEFINITIONS As used in this compact: 1.1 The term “state” shall mean either state signatory hereto, and it shall be construed to include any person, entity, or agency of either state who, by reason of official responsibility or by designation of the governor of the state, is acting as an official representative of the state; 1.2 The term “Kansas-Nebraska Big Blue river compact administration,” or the term “administration,” means the agency created by this compact for the administration thereof; 1.3 The term “Big Blue river basin” means all of the drainage basin of the Big Blue and Little Blue rivers in Nebraska and Kansas downstream to the confluence of the Big Blue river with the Kansas river near Manhattan, Kansas;

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1.4 The term “Big Blue river basin in Nebraska” means all of the drainage basin of the Big Blue river in Nebraska and is exclusive of the drainage basin of the Little Blue river in Nebraska; 1.5 The term “minimum mean daily flow” means the minimum mean flow for any one calendar day; 1.6 The term “pollution” means contamination or other undesirable alteration of any of the physical, chemical, biological, radiological, or thermal properties of the waters of the basin, or the discharge into the waters of the basin of any liquid, gaseous, or solid substances that create or are likely to result in a nuisance, or that render or are likely to render the waters into which they are discharged harmful, detrimental, or injurious to public health, safety, or welfare, or that are harmful, detrimental, or injurious to beneficial uses of the water; 1.7 The term “water project” means any physical structure or any manmade changes which affect the quantity or quality of natural water supplies or natural streamflows and which are designed to bring about greater beneficial use of the water resources of an area; 1.8 The term “natural flow” means that portion of the flow in a natural stream that consists of direct runoff from precipitation on the land surface, ground-water infiltration to the stream, return flows to the natural stream from municipal, agricultural, or other uses, and releases from storage for no designated beneficial use; 1.9 The term “inactive water appropriation” means a water right that is subject to cancellation or termination for non-use. ARTICLE II DESCRIPTION OF THE BASIN 2.1 The Big Blue river, a tributary of the Kansas river, drains an area of 9,696 square miles in south central Nebraska and north central Kansas. About 75 percent of the Big Blue river basin is in Nebraska, and the remainder is in Kansas. The Big Blue river and its principal tributary, the Little Blue river, join near Blue Rapids, Kansas. From there, the Big Blue river flows generally southward to join the Kansas river near Manhattan, Kansas, as shown on exhibit A. 2.2 Much of the upper portion of the basin in Nebraska is underlain with sands and gravels that supply large quantities of water to irrigation wells. The lower portion of the basin in Nebraska and that portion of the basin in Kansas lack significant ground-water supplies except within the major stream valleys.

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ARTICLE III ORGANIZATION OF COMPACT ADMINISTRATION 3.1 Administration Agency. There is hereby established an interstate administrative agency, to be known as the “Kansas-Nebraska Big Blue river compact administration,” to administer the compact. 3.2 Administration membership. The administration shall be composed of one ex officio member and one advisory member from each state, plus a federal member to be appointed by the president if he so desires. The ex officio member from each state shall be the official charged with the duty of administering the laws of his state pertaining to water rights. Said official shall designate a representative who may serve in his place at meetings of the administration. All actions taken by the designated representative in the transaction of the business of the administration shall be in the name of the official he represents and shall be binding on that official. The advisory member from each state may serve in any capacity within the administration. He shall reside in the Big Blue river basin portion of the state he represents. The governor of each state shall appoint the advisory member from that state for a term of four years. This appointment shall be made within 90 days after the effective date of this compact. 3.3 Administration government. The administration shall hold its first meeting within 120 days after the effective date of this compact, and it shall meet at least annually thereafter. The federal member, if one be designated, shall serve as chairman, without vote. If no federal representative is appointed, the administration shall select a chairman, in addition to such officers as may be provided for in the rules and regulations, to serve at the will of the administration. A meeting quorum shall consist of the ex officio members from both states, or their designated representatives. Each state shall have but one vote, cast by the ex officio member or his representative. All actions must be approved by both ex officio members or their representatives. Minutes of each meeting shall be kept, and they shall be available for public inspection. 3.4 Administration powers and duties. The administration shall have the power to adopt rules and regulations consistent with the provisions of this compact, to enforce such rules and regulations, and to otherwise carry out its responsibilities. It may institute action in its own name in courts of competent jurisdiction to compel compliance with the provisions of this compact and with the rules and regulations it adopts. The administration is hereby authorized to employ the technical and clerical staff necessary to carry out its functions, and to maintain the office

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Appendix B and appurtenances necessary to conduct its business. It may employ attorneys, engineers, or other consultants. It may purchase equipment and services necessary to its functions. The administration shall publish an annual report including a review of its activities and financial status. It may also prepare and publish such other reports and publications as it deems necessary. In order to provide a sound basis for carrying out the apportionment provisions of this compact, the administration shall cause to be established such stream-gaging stations, ground-water observation wells, and other datacollection facilities as are necessary for administering this compact; and it shall install such other equipment and collect such data therefrom, for a period of not less than five years, as are necessary or desirable for evaluating the effects of pumping of wells on the flows of the Big Blue and Little Blue rivers at the Kansas-Nebraska state line. The well area to be considered is described in Article V, paragraph 5.2. The administration shall have authority to accept funds from local, state, and federal sources. It may enter into cooperative agreements and contribute funds to support such data-collection and analysis programs as are necessary for administration of the compact.

ARTICLE IV RESPONSIBILITY OF EACH STATE 4.1 Expenses of administration. Each state and federal member of the administration shall receive such compensation and such reimbursement for travel and subsistence as are provided by the government he represents, and he shall be paid by that government. 4.2 Budget. Each year, the administration shall prepare a properly documented budget covering the anticipated expenditures of the administration for the following fiscal period. Each state shall make provision in its budget for funds to pay its share of the expenses of the administration, which shall be divided equally between the states of Kansas and Nebraska. The administration shall establish a fund to which each state shall contribute equally and from which the expenses of the administration shall be paid. 4.3 Records and information. The state of Kansas and the state of Nebraska shall cooperate with the administration and furnish to it such records, information, plans, data, and assistance as may be reasonably available; and they shall keep the administration advised of federal activities in connection with planning, design, construction, operation, and maintenance of water-resource projects in the Big Blue river basin.

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Any local, public, or private agency collecting water data or planning, designing, constructing, operating, or maintaining any water project or facility in the Big Blue river basin shall keep the administration advised of its investigations and of any proposed changes and additions to existing projects and facilities, and it shall submit plans for new projects to the administration for review of those project aspects affecting surface-water flowage and quality. ARTICLE V APPORTIONMENT OF WATERS OF THE BIG BLUE RIVER BASIN 5.1 Principles of apportionment. The physical and other conditions peculiar to the Big Blue river basin constitute the basis for this apportionment, and neither of the signatory states hereby, nor the congress of the United States by its consent hereto, concedes that this apportionment establishes any general principle with respect to any other interstate stream. The states of Kansas and Nebraska subscribe to the principle of including storage capacity for low-flow regulation in reservoirs constructed by the U.S. bureau of reclamation and the U.S. army corps of engineers, and to the principle of such administration as is required to assure that water released from storage for low-flow regulation shall remain available in the stream to accomplish its intended purpose. 5.2 Nebraska apportionment. The state of Nebraska shall have free and unrestricted use of the waters of the Little Blue and Big Blue river basins in Nebraska, such use to be in accordance with the laws of the state of Nebraska, subject to the limitations set forth below. (a) Water appropriations of record in the Little Blue and Big Blue river basins in Nebraska on November 1, 1968, that were then inactive, shall be cancelled by due process of laws in effect in that state. (b) During the period, May 1—September 30, the state of Nebraska shall regulate diversions from natural flow of streams in the Little Blue and Big Blue river basins by water appropriators junior to November 1, 1968, in order to maintain minimum mean daily flows at the state-line gaging stations (which are now located at Fairbury and Barneston, respectively, but which may be relocated at such other places as may be designated state-line gaging stations by the administration) during each month as follows:

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Appendix B Little Blue River May 45 cfs June 45 cfs July 75 cfs August 80 cfs September 60 cfs







Big Blue River May June July August September

45 cfs 45 cfs 80 cfs 90 cfs 65 cfs

When such action is necessary to maintain the above schedule of flows, the state of Nebraska shall: (1) Limit diversions by natural-flow appropriators in Nebraska in accordance with their water appropriations; (2) Close, in reverse order of priority, natural-flow appropriations with priority dates subsequent to November 1, 1968, including rights to store water in the conservation-storage zones of reservoirs; (3) Enjoin all persons not holding valid natural-flow appropriations from taking water during periods when the exercise of junior natural-flow appropriations is being restricted; (4) Regulate, in the same manner that diversion of natural flows is regulated, withdrawals of water from irrigation wells installed after November 1, 1968, except equivalent wells drilled to replace wells installed before that date, in the alluvium and valley side terrace deposits within one mile from the thread of the river and between the mouth of Walnut creek and the Kansas-Nebraska state line on the Little Blue river and between the mouth of Turkey creek and the Kansas-Nebraska state line on the Big Blue river (as delineated on exhibits A and B of Supplement No. 1 to the report of the engineering committee) provided that, if the regulation of such wells fails to yield any measurable increases in flows at the state-line gaging stations as determined by the investigations to be undertaken under Article III, paragraph 3.4, the regulation of such wells shall be discontinued. Determination of the effect on streamflow of the pumping of such wells shall rest with the administration. Delivery of water under the terms of this article shall be deemed to be in compliance with its provisions when the amounts passing the state-line gaging stations are substantially equivalent to the scheduled amounts. Minor irregularities in flow shall be disregarded.

(c) The storage capacity provided in reservoirs in the Little Blue river basin in Nebraska shall be limited to a total of 200,000 acre-feet. Similarly, the storage capacity in reservoirs in the Big Blue river basin in Nebraska shall

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be limited to 500,000 acre-feet. These limitations are exclusive of storage capacity that may be found necessary for regulation and use of waters imported into these basins in Nebraska; exclusive of storage capacity in small reservoir projects where the storage of water for subsequent use is less than 200 acre-feet; exclusive of storage capacity allocated to sedimentation and flood control; and exclusive of storage capacity allocated to, and from which water is released to accomplish, low-flow augmentation for improvement of water quality, for fishery, wildlife, or recreation purposes, or for meeting the flow schedules at the Kansas-Nebraska state line as set out in Article V, paragraph 5.2. 5.3 Kansas apportionment. The state of Kansas shall have free and unrestricted use of all waters of the Big Blue river basin flowing into Kansas from Nebraska in accordance with this compact, and of all waters of the basin originating in Kansas, excepting such waters as may, in the future, flow from Kansas into Nebraska. 5.4 Transbasin diversion. In the event of any importation of water into the Big Blue river basin by either state, the state making the importation shall have exclusive use of such imported water, including identifiable return flows therefrom. Neither state shall authorize the exportation from the Big Blue river of water originating within that basin without the approval of the administration. ARTICLE VI WATER QUALITY CONTROL 6.1 The states of Kansas and Nebraska mutually agree to the principle of individual state efforts to control natural and man-made water pollution within each state and to the continuing support of both states in active water pollution control programs. 6.2 The two states agree to cooperate, through their appropriate state agencies, in the investigation, abatement, and control of sources of alleged interstate pollution within the Big Blue river basin whenever such sources are called to their attention by the administration. 6.3 The two states agree to cooperate in maintaining the quality of the waters of the Big Blue river basin at or above such water quality standards as may be adopted, now or hereafter, by the water pollution control agencies of the respective states in compliance with the provisions of the federal water quality act of 1965, and amendments thereto.

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6.4 The two states agree to the principle that neither state may require the other to provide water for the purpose of water quality control as a substitute for adequate waste treatment. ARTICLE VII GENERAL PROVISIONS 7.1 Right to store water in upper state. The right of the state of Kansas or of any person, corporation, local agency, or entity in Kansas to construct or participate in the future construction and use of any storage reservoir or diversion works in the Big Blue and Little Blue basins of Nebraska for the purpose of regulating water to be used in Kansas shall never be denied: Provided, That such right is subject to the laws of the state of Nebraska and that any such storage for use by Kansas shall be excluded from the limitations on storage under Article V, paragraph 5.2 (c). Releases of water from storage provided by Kansas interests in the state of Nebraska shall not be counted toward meeting the minimum flow requirements at the state line under the provisions of paragraph 5.2 (b). 7.2 Disclaimer. Nothing contained in this compact shall be deemed: (1) To impair, extend, or otherwise affect any right or power of the United States, its agencies, or its instrumentalities involved herein; (2) To subject to the laws of the states of Kansas and Nebraska any property or rights of the United States that were not subject to the laws of those states prior to the date of this compact; (3) To interfere with or impair the right or power of either signatory state to regulate within its boundaries the appropriation, use, and control of waters within that state consistent with its obligations under this compact. 7.3 Invalidity in part. Should a court of competent jurisdiction hold any part of this compact to be contrary to the constitution of either signatory state or to the constitution of the United States, all other severable provisions of this compact shall continue in full force and effect. 7.4 Future review. After the expiration of five years following the effective date of this compact, the administration may review any provisions hereof; and it shall meet for such review whenever a member of the administration from either state requests such review. All provisions hereof shall remain in full force and effect until changed and amended within the intent of the compact by unanimous action of the administration, and until such changes in this compact

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are ratified by the legislatures of the respective states and are consented to by the congress of the United States, in the same manner that this compact is required to be ratified and consented to before it becomes effective. 7.5 Termination. This compact may be terminated at any time by appropriate action of the legislatures of both signatory states. In the event of amendment or termination of the compact, the water-resource developments made in compliance with, and reliant upon, this compact shall continue unimpaired. ARTICLE VIII RATIFICATION 8.1 This compact shall become binding and obligatory when it shall have been ratified by the legislature of each state and consented to by the congress of the United States and when the congressional act consenting to this compact includes the consent of congress to name and join the United States as a party in any litigation in the United States supreme court, if the United States is an indispensable party and if the litigation arises out of this compact or its application, and if a signatory state is a party thereto. 8.2 Notice of ratification by the legislature of each state shall be given by the governor of that state to the governor of the other state and to the president of the United States, and the president is hereby requested to give notice to the governor of each state of the consent by the congress of the United States. IN WITNESS WHEREOF the authorized representatives have executed three counterparts hereof, each of which shall be and constitute an original, one of which shall be deposited with the administrator of general services of the United States, and one of which shall be forwarded to the governor of each state. Done at Lincoln, Nebraska, this 25th day of January 1971.

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Appendix B-18: Klamath River Basin Compact Public Law No. 85–222 71 Statutes at Large 497 (1957)

ARTICLE I PURPOSES The major purposes of this compact are, with respect to the water resources of the Klamath River Basin: A. To facilitate and promote the orderly, integrated and comprehensive development, use, conservation and control thereof for various purposes, including, among others: The use of water for domestic purposes; the development of lands by irrigation and other means; the protection and enhancement of fish, wildlife and recreational resources; the use of water for industrial purposes and hydroelectric power production; and the use and control of water for navigation and flood prevention. B. To further intergovernmental cooperation and comity with respect to these resources and programs for their use and development and to remove causes of present and future controversies by providing (1) for equitable distribution and use of water among the two states and the Federal Government, (2) for preferential rights to the use of water after the effective date of this compact for the anticipated ultimate requirements for domestic and irrigation purposes in the Upper Klamath River Basin in Oregon and California, and (3) for prescribed relationships between beneficial uses of water as a practicable means of accomplishing such distribution and use. ARTICLE II DEFINITION OF TERMS As used in this compact: A. “Klamath River Basin” shall mean the drainage area of the Klamath River and all its tributaries within the States of California and Oregon and all closed basins included in the Upper Klamath River Basin. B. “Upper Klamath River Basin” shall mean the drainage area of the Klamath River and all its tributaries upstream from the boundary between the States of California and Oregon and the closed basins of Butte Valley, Red Rock Valley, Lost River Valley, Swan Lake Valley and Crater Lake, as delineated on the official map of the Upper Klamath River Basin approved on September 6, 1956, by the commissions negotiating this compact and filed with the Secretaries of State of the two states and the General Services Administration of the United States, which map is incorporated by reference and made a part hereof.

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C. “Commission” shall mean the Klamath River Compact Commission as created by Article IX of this compact. D. “Klamath Project” of the Bureau of Reclamation of the Department of the Interior of the United States shall mean that area as delineated by appropriate legend on the official map incorporated by reference under subdivision B of this Article. E. “Person” shall mean any individual or any other entity, public or private, including either state, but excluding the United States. F. “Keno” shall mean a point on the Klamath River at the present needle dam, or any substitute control dam constructed in section 36, township 39 south, range 7 east, Willamette Base and Meridian. G. “Water” or “waters” shall mean waters appearing on the surface of the ground in streams, lakes or otherwise, regardless of whether such waters at any time were or will become ground water, but shall not include water extracted from underground sources until after such water is used and becomes surface return flow or waste water. H. “Domestic use” shall mean the use of water for human sustenance, sanitation and comfort; for municipal purposes; for livestock watering; for irrigation of family gardens; and for other like purposes. I. “Industrial use” shall mean the use of water in manufacturing operations. J. “Irrigation use” shall mean the use of water for production of agricultural crops, including grain grown for feeding wildfowl. ARTICLE III DISTRIBUTION AND USE OF WATER A. There are hereby recognized vested rights to the use of waters originating in the Upper Klamath River Basin validly established and subsisting as of the effective date of this compact under the laws of the state in which the use or diversion is made, including rights to the use of waters for domestic and irrigation uses within the Klamath Project. There are also hereby recognized rights to the use of all waters reasonably required for domestic and irrigation uses which may hereafter be made within the Klamath Project. B. Subject to the rights described in subdivision A of this Article and excepting the uses of water set forth in subdivision E of Article XI, rights to the use of unappropriated waters originating within the Upper Klamath River Basin for any beneficial use in the Upper Klamath River Basin, by direct

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Appendix B diversion or by storage for later use, may be acquired by any person after the effective date of this compact by appropriation under the laws of the state where the use is to be made, as modified by the following provisions of this subdivision B and subdivision C of this Article, and may not be acquired in any other way:

1. In granting permits to appropriate waters under this subdivision B, as among conflicting applications to appropriate when there is insufficient water to satisfy all such applications, each state shall give preference to applications for a higher use over applications for a lower use in accordance with the following order of uses: (a) Domestic use, (b) Irrigation use, (c) Recreational use, including use for fish and wildlife, (d) Industrial use, (e) Generation of hydroelectric power, (f) Such other uses as are recognized under the laws of the state involved. These uses are referred to in this compact as uses (a), (b), (c), (d), (e) and (f), respectively. Except as to the superiority of rights to the use of water for use (a) or (b) over the rights to the use of water for use (c), (d), (e) or (f), as governed by subdivision C of this Article, upon a permit being granted and a right becoming vested and perfected by use, priority in right to the use of water shall be governed by priority in time within the entire Upper Klamath River Basin regardless of state boundaries. The date of priority of any right to the use of water appropriated for the purposes above enumerated shall be the date of the filing of the application therefor, but such priority shall be dependent on commencement and completion of construction of the necessary works and application of the water to beneficial use with due diligence and within the times specified under the laws of the state where the use is to be made. Each state shall promptly provide the commission and the appropriate official of the other state with complete information as to such applications and as to all actions taken thereon. 2. Conditions on the use of water under this subdivision B in Oregon shall be: (a) That there shall be no diversion of waters from the Upper Klamath River Basin, but this limitation shall not apply to out-of-basin diversions of waters originating within the drainage area of Fourmile Lake.

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(b) That water diverted from Upper Klamath Lake and the Klamath River and its tributaries upstream from Keno, Oregon, for use in Oregon and not consumed therein and appearing as surface return flow and waste water within the Upper Klamath River Basin shall be returned to the Klamath River or its tributaries above Keno, Oregon. 3. Conditions on the use of water under this subdivision B in California shall be: (a) That the waters diverted from the Klamath River within the Upper Klamath River Basin for use in California shall not be taken outside the Upper Klamath River Basin. (b) That substantially all of the return flows and waste water finally resulting from such diversions and use appearing as surface waters in the Upper Klamath River Basin shall be made to drain so as to be eventually returned to the Klamath River upstream from Keno, Oregon. C. 1. All rights, acquired by appropriation after the effective date of this compact, to use waters originating within the Upper Klamath River Basin for use (a) or (b) in the Upper Klamath River Basin in either state shall be superior to any rights, acquired after the effective date of this compact, to use such waters (i) for any purpose outside the Klamath River Basin by diversion in California or (ii) for use (c), (d), (e) or (f) anywhere in the Klamath River Basin. Such superior rights shall exist regardless of their priority in time and may be exercised with respect to inferior rights without the payment of compensation. But such superior rights to use water for use (b) in California shall be limited to the quantity of water necessary to irrigate 100,000 acres of land, and in Oregon shall be limited to the quantity of water necessary to irrigate 200,000 acres of land. 2. The provisions of paragraph 1 of this subdivision C shall not prohibit the acquisition and exercise after the effective date of this compact of rights to store waters originating within the Upper Klamath River Basin and to make later use of such stored water for any purpose, as long as the storing of waters for such later use, while being effected, does not interfere with the direct diversion or storage of such waters for use (a) or (b) in the Upper Klamath River Basin.

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ARTICLE IV HYDROELECTRIC POWER It shall be the objective of each state, in the formulation and the execution and the granting of authority for the formulation and execution of plans for the distribution and use of the water of the Klamath River Basin, to provide for the most efficient use of available power head and its economic integration with the distribution of water for other beneficial uses in order to secure the most economical distribution and use of water and lowest power rates which may be reasonable for irrigation and drainage pumping, including pumping from wells. ARTICLE V INTERSTATE DIVERSION AND STORAGE RIGHTS; MEASURING DEVICES A. Each state hereby grants for the benefit of the other and its designees the right to construct and operate facilities for the measurement, diversion, storage and conveyance of water from the Upper Klamath River Basin in one state for use in the other insofar as the exercise of such right may be necessary to effectuate and comply with the terms of this compact. The location of such facilities shall be subject to approval by the commission. B. Each state or its designee, exercising within the jurisdiction of the other a right granted under subdivision A of this Article, shall make provision for the establishment, operation and maintenance of permanent gaging stations at such points on streams or reservoir or conveyance facilities as may be required by the commission for the purpose of ascertaining and recording the volume of diversions by the streams or facilities involved. Said stations shall be equipped with suitable devices for determining the flow of water at all times. All information obtained from such stations shall be compiled in accordance with the standards of the United States Geological Survey, shall be filed with the commission, and shall be available to the public. ARTICLE VI ACQUISITION OF PROPERTY FOR STORAGE AND DIVERSION; IN LIEU TAXES A. Subject to approval of the commission, either state shall have the right (1) to acquire such property rights in the other state as are necessary for the diversion, storage, conveyance, measurement and use of water in conformity with this compact, by donation or purchase, or (2) to elect to have the other state acquire such property rights for it by purchase or through the exercise of the

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power of eminent domain. A state making the latter election shall make a written request therefor and the other state shall expeditiously acquire said property rights either by purchase at a price satisfactory to the requesting state, or, if such purchase cannot be made, then through the exercise of its power of eminent domain, and shall convey said property rights to the requesting state or its designee. All costs of such acquisition shall be paid by the requesting state. Neither state shall have any greater power to acquire property rights for the other state through the exercise of the power of eminent domain than it would have under its laws to acquire the same property rights for itself. B. Should any diversion, storage or conveyance facilities be constructed or acquired in either state for the benefit of the other state, as herein provided, the construction, repair, replacement, maintenance and operation of such facilities shall be subject to the laws of the state in which the facilities are located, except that the proper officials of that state shall permit the storage, release and conveyance of any water to which the other state is entitled under this compact. C. Either state having property rights other than water rights in the other state acquired as provided in this Article shall pay to each political subdivision of the state in which such property rights are located, each and every year during which such rights are held, a sum of money equivalent to the average annual amount of taxes assessed against those rights during the 10 years preceding the acquisition of such rights in reimbursement for the loss of taxes to such political subdivisions of the state. Payments so made to a political subdivision shall be in lieu of any and all taxes by that subdivision on the property rights for which the payments are made. ARTICLE VII POLLUTION CONTROL A. The states recognize that the growth of population and the economy of the Upper Klamath River Basin can result in pollution of the waters of the Upper Klamath River Basin constituting a menace to the health and welfare of, and occasioning economic loss to, people living or having interests in the Klamath River Basin. The states recognize further that protection of the beneficial uses of the waters of the Klamath River Basin requires cooperative action of the two states in pollution abatement and control. B. To aid in such pollution abatement and control, the commission shall have the duty and power:

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1. To cooperate with the states or agencies thereof or other entities and with the United States for the purpose of promoting effective laws and the adoption of effective regulations for abatement and control of pollution of the waters of the Klamath River Basin, and from time to time to recommend to the governments reasonable minimum standards for the quality of such waters. 2. To disseminate to the public by any and all appropriate means information respecting pollution abatement and control in the waters of the Klamath River Basin and on the harmful and uneconomic results of such pollution. C. Each state shall have the primary obligation to take appropriate action under its own laws to abate and control interstate pollution, which is defined as the deterioration of the quality of the waters of the Upper Klamath River Basin within the boundaries of such state which materially and adversely affects beneficial uses of waters of the Klamath River Basin in the other state. Upon complaint to the commission by the state water pollution control agency of one state that interstate pollution originating in the other state is not being prevented or abated, the procedure shall be as follows: 1. The commission shall make an investigation and hold a conference on the alleged interstate pollution with the water pollution control agencies of the two states, after which the commission shall recommend appropriate corrective action. 2. If appropriate corrective action is not taken within a reasonable time, the commission shall call a hearing, giving reasonable notice in writing thereof to the water pollution control agencies of the two states and to the person or persons which it is believed are causing the alleged interstate pollution. Such hearing shall be held in accordance with rules and regulations of the commission, which shall conform as nearly as practicable with the laws of the two states governing administrative hearings. At the conclusion of such hearing, the commission shall make a finding as to whether interstate pollution exists, and if so, shall issue to any person or persons which the commission finds are causing such interstate pollution an order or orders for correction thereof. 3. It shall be the duty of the person against whom any such order is issued to comply therewith. Any court of general jurisdiction of the state where such discharge is occurring or the United States District Court for the district where the discharge is occurring shall have jurisdiction, on petition of the commission for enforcement of such order, to compel

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action by mandamus, injunction, specific performance, or any other appropriate remedy, or on petition of the person against whom the order is issued to review any order. At the conclusion of such enforcement or review proceedings, the court may enter such decree or judgment affirming, reversing, modifying, or remanding such order as in its judgment is proper in the circumstances on the basis of the rules customarily applicable in proceedings for court enforcement or review of administrative actions. D. The water pollution control agencies of the two states shall, from time to time, make available to the commission all data relating to the quality of the waters of the Upper Klamath River Basin which they possess as the result of studies, surveys and investigations thereof which they may have made. ARTICLE VIII MISCELLANEOUS A. Subject to vested rights as of the effective date of this compact, there shall be no diversion of waters from the basin of Jenny Creek to the extent that such waters are required, as determined by the commission, for use on land within the basin of Jenny Creek. B. Each state shall exercise whatever administrative, judicial, legislative or police powers it has that are required to provide any necessary reregulation or other control over the flow of the Klamath River downstream from any hydroelectric power plant for protection of fish, human life or property from damage caused by fluctuations resulting from the operation of such plant. ARTICLE IX ADMINISTRATION A. 1. There is hereby created a commission to administer this compact. The commission shall consist of three members. The representative of the State of California shall be the Department of Water Resources. The representative of the State of Oregon shall be the Water Resources Commission of Oregon who shall serve as ex officio representative of the Water Resources Commission of Oregon. The President is requested to appoint a federal representative who shall be designated and shall serve as provided by the laws of the United States. 2. The representative of each state shall be entitled to one vote in the commission. The representative of the United States shall serve as chairman

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Appendix B of the commission without vote. The compensation and expenses of each representative shall be fixed and paid by the government which he represents. Any action by the commission shall be effective only if it be agreed to by both voting members.

3. The commission shall meet to establish its formal organization within 60 days after the effective date of this compact, such meeting to be at the call of the Governors of the two states. The commission shall then adopt its initial set of rules and regulations governing the management of its internal affairs providing for, among other things, the calling and holding of meetings, the adoption of a seal, and the authority and duties of the chairman and executive director. The commission shall establish its office within the Upper Klamath River Basin. 4. The commission shall appoint an executive director, who shall also act as secretary, to serve at the pleasure of the commission and at such compensation, under such terms and conditions and performing such duties as it may fix. The executive director shall be the custodian of the records of the commission with authority to affix the commission’s official seal, and to attest to and certify such records or copies thereof. The commission, without regard to the provisions of the civil service laws of either state, may appoint and discharge such consulting, clerical and other personnel as may be necessary for the performance of the commission’s functions, may define their duties, and may fix and pay their compensation. The commission may require the executive director and any of its employees to post official bonds, and the cost thereof shall be paid by the commission. 5. All records, files and documents of the commission shall be open for public inspection at its office during established office hours. 6. No member, officer or employee of the commission shall be liable for injury or damage resulting from (a) action taken by such member, officer or employee in good faith and without malice under the apparent authority of this compact, even though such action is later judicially determined to be unauthorized, or (b) the negligent or wrongful act or omission of any other person, employed by the commission and serving under such officer, member or employee, unless such member, officer or employee either failed to exercise due care in the selection, appointment or supervision of such other person, or failed to take all available action to suspend or discharge such other person after knowledge or notice that such other person was inefficient or incompetent to perform the work for which he was employed. No suit may be instituted against

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a member, officer or employee of the commission for damages alleged to have resulted from the negligent or wrongful act or omission of such member, officer or employee or a subordinate thereof occurring during the performance of his official duties unless, within 90 days after occurrence of the incident, a verified claim for damages is presented in writing and filed with such member, officer or employee and with the commission. In the event of a suit for damages against any member, officer or employee of the commission on account of any act or omission in the performance of his or his subordinates’ official duties, the commission shall arrange for the defense of such suit and may pay all expenses therefor on behalf of such member, officer or employee. The commission may at its expense insure its members, officers and employees against liability resulting from their acts or omissions in the performance of their official duties. Nothing in this paragraph shall be construed as imposing any liability upon any member, officer or employee of the commission that he would otherwise not have. 7. The commission may incur obligations and pay expenses which are necessary for the performance of its functions. But it shall not pledge the credit of any government except by and with the authority of the legislative body thereof given pursuant to and in keeping with the constitution of such government, nor shall the commission incur any obligations prior to the availability of funds adequate to meet them. 8. The commission may: (a) Borrow, accept or contract for the services of personnel from any government or agency thereof, from any intergovernmental agency, or from any other entity. (b) Accept for any of its purposes and functions under this compact any and all donations, gifts, grants of money, equipment, supplies, materials and services from any government or agency thereof or intergovernmental agency or from any other entity. (c) Acquire, hold and dispose of real and personal property as may be necessary in the performance of its functions. (d) Make such studies, surveys and investigations as are necessary in carrying out the provisions of this compact. 9. All meetings of the commission for the consideration of and action on any matters coming before the commission, except matters involving the management of internal affairs of the commission and its staff, shall be open to the public. Matters coming within the exception of this paragraph may be considered and acted upon by the commission in executive sessions under such rules and regulations as may be established therefor.

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10. In the case of the failure of the two voting members of the commission to agree on any matter relating to the administration of this compact as provided in paragraph 2 of this subdivision A, the representative from each state shall appoint one person and the two appointed persons shall appoint a third person. The three appointees shall sit as an arbitration forum. The terms of appointment and the compensation of the members of the arbitration forum shall be fixed by the commission. Matters on which the two voting members of the commission have failed to agree shall be decided by a majority vote of the members of the arbitration forum. Each state obligates itself to abide by the decision of the arbitration forum, subject, however, to the right of each state to have the decision reviewed by a court of competent jurisdiction. 11. The commission shall have the right of access, through its authorized representatives, to all properties in the Klamath River Basin whenever necessary for the purpose of administration of this compact. The commission may obtain a court order to enforce its right of access. B. 1. The commission shall submit to the Governor or designated officer of each state a budget of its estimated expenditures for such period and at such times as may be required by the laws of that state for presentation to the legislature thereof. Each state pledges itself to appropriate and pay over to the commission one-half of the amount required to finance the commission’s estimated expenditures as set forth in each of its budgets, and pledges further that concurrently with approval of this compact by its legislature the sum of not less than $12,000 will be appropriated by it to be paid over to the commission at its first meeting for use in financing the commission’s functions until the commission can prepare its first budget and receive its first appropriation thereunder from the states. 2. The commission shall keep accurate accounts of all receipts and disbursements, which shall be audited yearly by a certified public accountant, and the report of the audit shall be made a part of its annual report. The accounts of the commission shall be open for public inspection during established office hours. 3. The commission shall make and transmit to the legislature and Governor of each state and to the President of the United States an annual report covering the finances and activities of the commission and embodying such plans, recommendations and findings as may have been adopted by the commission.

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C. 1. The commission shall have the power to adopt, and to amend or repeal, such rules and regulations to effectuate the purposes of this compact as in its judgment may be appropriate. 2. Except as to matters involving exclusively the management of the internal affairs of the commission and its staff or involving emergency matters, prior to the adoption, amendment or repeal of any rule or regulation the commission shall hold a hearing at which any interested person shall have the opportunity to present his views on the proposed action in writing, with or without the opportunity to present the same orally. The commission shall give adequate advance notice in a reasonable manner of the time, place and subject of such hearings. 3. Emergency rules and regulations may be adopted without a prior hearing, but in such case they may be effective for not longer than 90 days. 4. The commission shall publish its rules and regulations in convenient form. ARTICLE X STATUS OF INDIAN RIGHTS A. Nothing in this compact shall be deemed: 1. To affect adversely the present rights of any individual Indian, tribe, band or community of Indians to the use of the waters of the Klamath River Basin for irrigation. 2. To deprive any individual Indian, tribe, band or community of Indians of any rights, privileges, or immunities afforded under federal treaty, agreement or statute. 3. To affect the obligations of the United States of America to the Indians, tribes, bands or communities of Indians, and their reservations. 4. To alter, amend or repeal any of the provisions of the Act of August 13, 1954 (68 Stat. 718) as it may be amended. B. Lands within the Klamath Indian Reservation which are brought under irrigation after the effective date of this compact, whether before or after section 14 of said Act of August 13, 1954, becomes fully operative, shall be taken into account in determining whether the 200,000 acre limitation provided in paragraph 1 of subdivision C of Article III has been reached.

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ARTICLE XI FEDERAL RIGHTS Nothing in this compact shall be deemed: A. To impair or affect any rights, powers or jurisdiction of the United States, its agencies or those acting by or under its authority, in, over and to the waters of the Klamath River Basin, nor to impair or affect the capacity of the United States, its agencies or those acting by or under its authority in any manner whatsoever, except as otherwise provided by the federal legislation enacted for the implementation of this compact as specified in Article XIII. B. To subject any property of the United States, its agencies or instrumentalities, to taxation by either state or any subdivision thereof, unless otherwise provided by Act of Congress. C. To subject any works or property of the United States, its agencies, instrumentalities or those acting by or under its authority, used in connection with the control or use of waters which are the subject of this compact, to the laws of any state to an extent other than the extent to which those laws would apply without regard to this compact, except as otherwise provided by the federal legislation enacted for the implementation of this compact as specified in Article XIII. D. To affect adversely the existing areas of Crater Lake National Park or Lava Beds National Monument, or to limit the operation of laws relating to the preservation thereof. E. To apply to the use of water for the maintenance, on the scale at which such land and water areas are maintained as of the effective date of this compact, of officially designated waterfowl management areas, including water consumed by evaporation and transpiration on water surface areas and water used for irrigation or otherwise in the Upper Klamath River Basin; nor to affect the rights and obligations of the United States under any migratory bird treaty or the Migratory Bird Conservation Act (45 Stat. 1222), as amended to the effective date of this compact. ARTICLE XII GENERAL PROVISIONS A. Each state and all persons using, claiming or in any manner asserting any right to the use of the waters of the Klamath River Basin under the authority of either state shall be subject to the terms of this compact. B. Nothing in this compact shall be construed to limit or prevent either state from instituting or maintaining any action or proceeding, legal or equitable,

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in any court of competent jurisdiction for the protection of any right under this compact or the enforcement of any of its provisions. C. Should a court of competent jurisdiction hold any part of this compact to be contrary to the Constitution of either state or the United States, all other provisions shall continue in full force and effect, unless it is authoritatively and finally determined judicially that the remaining provisions cannot operate for the purposes, or substantially in the manner, intended by the states independently of the portions declared unconstitutional or invalid. D. Except as to matters requiring the exercise of discretion by the commission, the provisions of this compact shall be self-executing and shall by operation of law be conditions of the various state permits, licenses or other authorizations relating to the waters of the Klamath River Basin issued after the effective date of this compact. E. The physical and other conditions peculiar to the Klamath River Basin constitute the basis for this compact, and neither of the states hereby, nor the Congress of the United States by its consent, considers that this compact establishes any general principle or precedent with respect to any other interstate stream. ARTICLE XIII RATIFICATION A. This compact shall become effective when ratified by the legislature of each signatory state, and when consented to by an Act of Congress of the United States which will, in substance, meet the provisions hereinafter set forth in this Article. B. The Act of Congress referred to in subdivision A of this Article shall provide that the United States or any agency thereof, and any entity acting under any license or other authority granted under the laws of the United States (referred to in this Article as “the United States”), in connection with developments undertaken after the effective date of this compact pursuant to laws of the United States, shall comply with the following requirements: 1. The United States shall recognize and be bound by the provisions of subdivision A of Article III. 2. The United States shall not, without payment of just compensation, impair any rights to the use of water for use (a) or (b) within the Upper Klamath River Basin by the exercise of any powers or rights to use

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Appendix B or control water (i) for any purpose whatsoever outside the Klamath River Basin by diversions in California or (ii) for any purpose whatsoever within the Klamath River Basin other than use (a) or (b). But the exercise of powers and rights by the United States shall be limited under this paragraph 2 only as against rights to the use of water for use (a) or (b) within the Upper Klamath River Basin which are acquired as provided in subdivision B of Article III after the effective date of this compact, but only to the extent that annual depletions in the flow of the Klamath River at Keno resulting from the exercise of such rights to use water for uses (a) and (b) do not exceed 340,000 acre-feet in any one calendar year.

3. The United States shall be subject to the limitation on diversions of waters from the basin of Jenny Creek as provided in subdivision A of Article VIII. 4. The United States shall be governed by all the limitations and provisions of paragraph 2 and subparagraph (a) of paragraph 3 of subdivision B of Article III. 5. The United States, with respect to any irrigation or reclamation development undertaken by the United States in the Upper Klamath River Basin in California, shall provide that substantially all of the return flows and waste water finally resulting from such diversions and use appearing as surface waters in the Upper Klamath River Basin shall be made to drain so as to be eventually returned to the Klamath River upstream from Keno, unless the Secretary of the Interior shall determine that compliance with this requirement would render it less feasible than under an alternate plan of development, in which event such return flows and waste waters shall be returned to the Klamath River at a point above Copco Lake. C. Upon enactment of the Act of Congress referred to in subdivision A of this Article and so long as such Act shall be in effect, the United States, when exercising rights to use water pursuant to state law, shall be entitled to all of the same privileges and benefits of this compact as any person exercising similar rights.

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D. Such Act of Congress shall not be construed as relieving the United States of any requirement of compliance with state law which may be provided by other federal statutes. ARTICLE XIV TERMINATION This compact may be terminated at any time by legislative consent of both states, but despite such termination, all rights then established hereunder or recognized hereby shall continue to be recognized as valid by the states.

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Appendix B-19: La Plata River Compact

Public Law No. 68–346 43 Statutes at Large 796 (1925) The State of Colorado and the State of New Mexico, desiring to provide for the equitable distribution of the waters of the La Plata River and to remove all causes of present and future controversy between them with respect thereto, and being moved by considerations of interstate comity, pursuant to Acts of their respective Legislatures, have resolved to conclude a compact for these purposes and have named as their commissioners: Delph E. Carpenter, for the State of Colorado; and Stephen B. Davis, Jr., for the State of New Mexico; who have agreed upon the following Articles: ARTICLE I The State of Colorado, at its own expense, shall establish and maintain two permanent stream-gauging stations upon the La Plata River for the purpose of measuring and recording its flow, which shall be known as the Hesperus Station and the Interstate Station, respectively. The Hesperus Station shall be located at some convenient place near the village of Hesperus, Colorado. Suitable devices for ascertaining and recording the volume of all diversions from the river above Hesperus Station, shall be established and maintained (without expense to the State of New Mexico), and whenever in this compact reference is made to the flow of the river at Hesperus Station, it shall be construed to include the amount of the concurrent diversions above said station. The Interstate Station shall be located at some convenient place within one mile of, and above or below, the interstate line. Suitable devices for ascertaining and recording the volume of water diverted by the Enterprise and Pioneer Canals, now serving approximately equal areas in both States, shall be established and maintained (without expense to the State of New Mexico), and whenever in this compact reference is made to the flow of the river at the Interstate Station, it shall be construed to include one-half the volume of the concurrent diversions by such canals, and also the volume of any other water which may hereafter be diverted from said river in Colorado for use in New Mexico. Each of said stations shall be equipped with suitable devices for recording the flow of water in said river at all times between the 15th day of February and the 1st day of December of each year. The State Engineers of the signatory States shall make provision for co-operating gauging at the two stations, for the details of the operation, exchange of records and data, and publication of the facts.

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ARTICLE II The waters of the La Plata River are hereby equitably apportioned between the signatory States, including the citizens thereof, as follows: 1. At all times between the first day of December and the fifteenth day of the succeeding February, each State shall have the unrestricted right to use of all water which may flow within its boundaries. 2. By reason of the usual annual rise and fall, the flow of said river between the fifteenth day of February and the first day of December of each year, shall be apportioned between the States in the following manner: (a) Each State shall have the unrestricted right to use all the waters within its boundaries on each day when the mean daily flow at the Interstate Station is one hundred cubic feet per second, or more. (b) On all other days the State of Colorado shall deliver at the Interstate Station a quantity of water equivalent to one-half of the mean flow at the Hesperus Station for the preceding day, but not to exceed one hundred cubic feet per second. 3. Whenever the flow of the river is so low that in the judgment of the State Engineers of the States, the greatest beneficial use of its waters may be secured by distributing all of its waters successively to the land in each State in alternating periods, in lieu of delivery of water as provided in the second paragraph of this article the use of the waters may be so rotated between the two States in such manner for such periods, and to continue for such time as the State Engineers may jointly determine. 4. The State of New Mexico shall not at any time be entitled to receive nor shall the State of Colorado be required to deliver any water not then necessary for beneficial use in the State of New Mexico. 5. A substantial delivery of water under the terms of this Article shall be deemed a compliance with its provisions and minor and compensating irregularities in flow or delivery shall be disregarded. ARTICLE III The State Engineers of the States by agreement, from time to time, may formulate rules and regulations for carrying out the provisions of this compact, which, when signed and promulgated by them, shall be binding until amended by agreement between them or until terminated by written notice from one to the other.

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ARTICLE IV Whenever any official of either State is designated to perform any duty under this compact, such designation shall be interpreted to include the State official or officials upon whom the duties now performed by such official may hereafter devolve. ARTICLE V The physical and other conditions peculiar to the La Plata River and the territory drained and served thereby constitute the basis for this compact, and neither of the signatory States concedes the establishment of any general principle or precedent by the concluding of this compact. ARTICLE VI This compact may be modified or terminated at any time by mutual consent of the signatory States and upon such termination all rights then established hereunder shall continue unimpaired. ARTICLE VII This compact shall become operative when approved by the Legislature of each of the signatory States and by the Congress of the United States. Notice of approval by the Legislatures shall be given by the Governor of each State to the Governor of the other State, and the President of the United States is requested to give notice to the Governors of the signatory States of approval by the Congress of the United States. IN WITNESS WHEREOF, The commissioners have signed this compact in duplicate originals, one of which shall be deposited with the Secretary of State of each of the signatory States. Done at the city of Santa Fe, in the State of New Mexico, this 27th day of November, in the year of our Lord One Thousand Nine Hundred and Twenty-Two.

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Appendix B-20: Merrimack River Flood Control Compact

Public Law No. 85–23 71 Statutes at Large 18 (1957) Whereas, the federal government exercises jurisdiction over the nation’s navigable rivers and their tributaries through passage of the Flood Control Act of 1936 and various other amendments to that act; and Whereas, these acts provide for construction by the United States of dams for flood control and, where feasible, in addition to flood control, for storage of water to be used for irrigation, recreation or hydroelectric power or for any of these purposes; and Whereas, the Merrimack is an interstate river and control of major floods on it can be obtained only by the construction of dams by the United States under authorization of the above-mentioned acts; and Whereas, the Commonwealth of Massachusetts and the state of New Hampshire recognize that it is in the interest of their general welfare that the United States construct in the Merrimack River Valley a comprehensive system of local protection works and dams and reservoirs to control floods and prevent loss of life and property, the disruption of orderly processes and the impairment of commerce between the said 2 states; and Whereas, the United States has constructed dikes, flood walls and other local protection works at Nashua in the state of New Hampshire and at Haverhill, Lowell and Fitchburg in the Commonwealth of Massachusetts, and dams and reservoirs for the storage of flood waters at Franklin Falls, Peterborough and at Webster in the state of New Hampshire, and has prepared designs for dikes and flood walls and other local protection works at Lawrence and North Andover in the Commonwealth of Massachusetts; and Whereas, the Congress has at various times authorized construction by the United States of other dams and reservoirs for the storage of flood waters in the Commonwealth of Massachusetts and in the state of New Hampshire and has more recently instructed the Corps of Engineers to determine what additional local protection works and dams and reservoirs are required for a comprehensive system to control floods in the Merrimack River and its tributaries; and Whereas, it is believed that such a comprehensive flood control system should include dams and reservoirs controlling flood runoff from approximately 30 percent of the total drainage area of the Merrimack River Basin and strategically located in reference to characteristics of tributaries and to damage centers; and Whereas, dams and reservoirs to control 30 percent of flood runoff will be located in the state of New Hampshire and the major benefits from such dams and reservoirs will accrue to the Commonwealth of Massachusetts; and

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Whereas, construction by the United States of additional dams and reservoirs in the state of New Hampshire to complete such a comprehensive flood control system will remove from the tax rolls of local governments of the state of New Hampshire such property as is acquired by the United States and may work other hardships against the people of New Hampshire; and Whereas, it is highly desirable that any flood control dam and reservoir constructed by the United States in the Merrimack River Valley have the approval of the state of New Hampshire and the Commonwealth of Massachusetts and that the Commonwealth of Massachusetts benefiting from construction of such dam and reservoir make reimbursement for such loss of taxes and for such hardships; and Whereas, a comprehensive system for the prevention of destructive floods and for water resources utilization in the Merrimack River Valley can best be accomplished by cooperation between the Commonwealth of Massachusetts and the state of New Hampshire and by and through a common and joint agency of said 2 states; Now, therefore, the said Commonwealth of Massachusetts and the state of New Hampshire do enter into the following compact, to wit: ARTICLE I The principal purposes of this compact are: (a) to promote interstate comity among and between the signatory states; (b) to provide adequate storage capacity for impounding the waters of the Merrimack River and its tributaries for the protection of life and property from floods; and (c) to provide a joint or common agency through which the signatory states, while promoting, protecting and preserving to each the local interest and sovereignty of the respective signatory states, may more effectively cooperate in accomplishing the object of flood control and water resources utilization in the basin of the Merrimack River and its tributaries. ARTICLE II There is created “The Merrimack River Valley Flood Control Commission,” referred to in this compact as the “commission,” which shall consist of 6 members, 3 of whom shall be residents of the Commonwealth of Massachusetts and one of whom shall be a resident of the Merrimack Valley, and 3 of whom shall be residents of the state of New Hampshire. The members of the commission shall be chosen by their respective states in such manner and for such term as may be fixed and determined from time to time by the law of each of said states, respectively, by which they are appointed. A member of the commission may be removed or suspended from office as provided by the law of the state from which he shall be appointed, and any vacancy occurring in the commission shall be filled in accordance with the laws of the state in which such vacancy exists.

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A majority of the members of each state shall constitute a quorum for the transaction of business, the exercise of any powers or the performance of any duties, but no action of the commission shall be binding unless at least 2 members from each state shall vote in favor of such action. The compensation of members of the commission shall be fixed, determined, and paid by the state which they respectively represent. All necessary expenses incurred in the performance of their duties shall be paid from the funds of the commission. The commission shall elect from its members a chairman, vice-chairman, clerk and treasurer. Such treasurer shall furnish to the commission, at its expense, a bond with corporate surety, to be approved by the commission, in such amount as the commission may determine, conditioned for the faithful performance of his duties. The commission shall adopt suitable bylaws and shall make such rules and regulations as it may deem advisable not inconsistent with laws of the United States, of the signatory states or with any rules or regulations lawfully promulgated thereunder. The commission shall make an annual report to the governor and legislature of each of the signatory states, setting forth in detail the operations and transactions conducted by it pursuant to this compact. The commission shall keep a record of all its meetings and proceedings, contracts and accounts, and shall maintain a suitable office, where its maps, plans, documents, records and accounts shall be kept, subject to public inspection at such times and under such regulations as the commission shall determine. ARTICLE III The commission shall constitute a body, both corporate and politic, with full power and authority: (1) to sue and be sued; (2) to have a seal and alter the same at pleasure; (3) to appoint and employ such agents and employees as may be required in the proper performance of the duties committed to it and to fix and determine their qualifications, duties and compensation; (4) to enter into such contracts and agreements and to do and perform any and all other acts, matters and things as may be necessary and essential to the full and complete performance of the powers and duties hereby committed to and imposed upon it and as may be incidental thereto; and (5) to have such additional powers and duties as may hereafter be delegated to or imposed upon it from time to time by the action of the legislature of either of said states, concurred in by the legislature of the other state and by the Congress of the United States. The commission shall make, or cause to be made, such studies as it may deem necessary, in cooperation with the Corps of Engineers and other federal agencies, for the development of a comprehensive plan for flood control and for utilization of the water resources of the Merrimack River Valley. The commission shall not pledge the credit of the signatory states or either of them.

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ARTICLE IV The state of New Hampshire in which is located the site of each of the following dams and reservoirs agrees to the construction by the United States of each such dam and reservoir in accordance with authorization by the Congress: (1) At West Hopkinton on the Contoocook River, controlling a drainage area of approximately 426 square miles, and near East Weare, on the north branch of the Piscataquog River, controlling a drainage area of approximately 64 square miles, and providing flood control storage for approximately 6 inches of runoff over both said drainage areas; and (2) Near Loudon on the Soucook River, controlling a drainage area of approximately 77 square miles and providing flood control storage for approximately 6 inches of runoff over said drainage area. ARTICLE V The Commonwealth of Massachusetts agrees to reimburse the state of New Hampshire 70 percent of the amount of taxes lost by reason of acquisition and ownership by the United States of lands, rights or other property therein for the flood control dams and reservoirs at Franklin Falls, Blackwater and West Peterborough, and for construction in the future of any flood control dam and reservoir specified in Article IV, and also for any other flood control dam and reservoir constructed in the future by the United States in the Merrimack River Valley. Annually, not later than November 1 of each year, the commission shall determine the loss of taxes resulting to political subdivisions of the state of New Hampshire by reason of acquisition and ownership therein by the United States of lands, rights or other property in connection with each flood control dam and reservoir for which provision for tax reimbursement has been made in the preceding paragraphs. Such losses of taxes as determined by the commission shall be based on the tax rate then current in each such political subdivision and on the average assessed valuation for a period of 5 years prior to the acquisition by the United States of such property; provided, that whenever a political subdivision wherein a flood control dam and reservoir or portion thereof is located shall have made a general revaluation of property subject to the annual municipal taxes of such subdivision, the commission may use such revaluation for the purpose of determining the amount of taxes for which reimbursement shall be made in the paragraph next above. Using the percentage of payment agreed to in said paragraph, the commission shall then compute the sum, if any, due from the Commonwealth of Massachusetts to the state of New Hampshire and shall send notice to the treasurer of the Commonwealth of Massachusetts setting forth in detail the sums, if any, to be paid to New Hampshire in reimbursement of tax losses due from the Commonwealth of Massachusetts to the state of New Hampshire.

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The Commonwealth of Massachusetts, on receipt of formal notification from the commission of the sum which it is to pay in reimbursement for tax losses, shall, not later than July 1 of the following year, make its payment for such tax losses to the state of New Hampshire, except that in case of the first annual payment for tax losses at any dam or reservoir such payment shall be made by the Commonwealth of Massachusetts not later than July 1 of the year in which the next regular session of its legislature is held. Payment by the Commonwealth of Massachusetts of its share of reimbursement for taxes in accordance with formal notification received from the commission shall be a complete and final discharge of all liability of the Commonwealth of Massachusetts to the state of New Hampshire for each flood control dam and reservoir within the State of New Hampshire for the time specified in such formal notification. The state of New Hampshire shall have full responsibility for distributing or expending all such sums received, and no agency or political subdivision shall have any claim against the Commonwealth of Massachusetts, nor against the commission relative to tax losses covered by such payments. Whenever the Commonwealth of Massachusetts and the state of New Hampshire shall agree, through the commission, on a lump sum payment in lieu of annual payments and such lump sum payment has been made and received, the requirement that the commission annually shall determine the tax losses, compute sums due from the Commonwealth of Massachusetts and send notice of such sums to the treasurer of the Commonwealth of Massachusetts shall no longer apply to the 2 states with respect to any flood control dam and reservoir for which lump sum payment has been made and received. The Commonwealth of Massachusetts agrees to pay the state of New Hampshire its respective share in reimbursement, as determined by the commission under the procedure following, for economic losses and damages occurring by reason of ownership of property by the United States, for construction and operation of a flood control dam and reservoir at any site specified in Article IV, and for any other flood control dam and reservoir constructed hereafter by the United States in the Merrimack River Valley, provided, that no reimbursement shall be made for speculative losses and damages or losses or damages for which the United States is liable. On receipt of information from the chief of engineers that request is to be made for funds for the purpose of preparing detailed plans and specifications for any flood control dam and reservoir proposed to be constructed in the Merrimack River Valley, including those specified in Article IV, the commission shall make an estimate of the amount of taxes which would be lost to and of economic losses and damages which would occur in political subdivisions of the state of New Hampshire in which such dam and reservoir would be located, wholly or in part, by reason of acquisition and ownership by the United States of lands, rights or other property for the construction and operation of such flood control dam and reservoir

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and shall decide whether the flood control benefits to be derived in the signatory states from such flood control dam and reservoir, both by itself and as a unit of a comprehensive flood control plan, justifies, in the opinion of the commission, the assumption by a signatory state of the obligation to make reimbursement for loss of taxes and for economic losses and damages. Such estimate and decision shall thereafter be reviewed by the commission at 5-year intervals until such time as the United States shall have acquired title to the site of such flood control dam or plans for its construction are abandoned. The commission shall notify the governor, the members of the United States Senate and the members of the United States House of Representatives from each signatory state and the chief of engineers as to the commission’s decision and as to any change in such decision. On receipt of information from the chief of engineers that any flood control dam and reservoir is to be constructed, reconstructed, altered or used for any purpose in addition to flood control, including those flood control dams and reservoirs previously constructed and those specified in Article IV, the commission shall make a separate estimate of the amount of taxes which would be lost to and of economic losses and damages which would occur in political subdivisions of the signatory state in which such dam and reservoir would be located, wholly or in part, by reason of acquisition and ownership by the United States of lands, rights or other property for the construction and operation of such dam and reservoir in excess of the estimated amount of taxes which would be lost and of the economic losses and damages which would occur if the dam were constructed and operated for flood control only and the commission shall decide the extent to which, in its opinion, the signatory states would be justified in making reimbursement for loss of taxes and for economic losses and damages in addition to reimbursement for such dam and reservoir if constructed and used for flood control only. Such estimate and decision shall thereafter be reviewed by the commission at 5-year intervals until such time as such dam and reservoir shall be so constructed, reconstructed, altered or used or plans for such construction, reconstruction, alterations or use are abandoned. The commission shall notify the governor, the members of the United States Senate and the members of the United States House of Representatives from each signatory state as to the commission’s decision and as to any change in such decision. Within 30 days after acquisition by the United States of the site of any flood control dam, the commission shall proceed to make a final determination of economic losses and damages occasioned by such dam and reservoir. The commission shall not include in such determination either speculative losses and damages or losses and damages for which the United States is liable. The commission shall compute the share the Commonwealth of Massachusetts shall pay to the state of New Hampshire by multiplying the sum of such losses and damages, as previously determined, by the percentage of flood control benefits

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which the Commonwealth of Massachusetts receives of the flood control benefits resulting from the dam and reservoir. The commission shall send a notice to the treasurer of the Commonwealth of Massachusetts, setting forth in detail the sum, if any, the Commonwealth of Massachusetts is to pay to the state of New Hampshire in reimbursement for economic losses and damages and shall also send such notice to the treasurer of the state of New Hampshire. The Commonwealth of Massachusetts, on receipt of such formal notification by the commission, shall pay its share of such economic losses or damages to the state of New Hampshire. Full payment by the Commonwealth of Massachusetts of the sum specified in such formal notification from the commission as to the amount of economic losses and damages for which the Commonwealth of Massachusetts is to make reimbursement shall be a complete and final discharge of all liability by the Commonwealth of Massachusetts to the state of New Hampshire for economic losses and damages for each flood control dam and reservoir within the said state designated in such formal notification. The state of New Hampshire shall have full responsibility for distributing or expending all such sums received, and no agency, political subdivision, private person, partnership, firm, association nor corporation shall have any claim against the Commonwealth of Massachusetts, nor against the commission relative to such economic losses and damages. The state of New Hampshire may, in agreement with the commission and the chief of engineers, acquire title or option to acquire title to any or all lands, rights or other property required for any flood control dam and reservoir within its boundaries, and transfer such titles or options to the United States. Whenever the fair cost to said signatory state for such titles or options, as determined by the commission, is greater than the amount received therefor from the United States, the Commonwealth of Massachusetts shall pay its share of such excess cost to said state of New Hampshire, such share to be determined by the commission in accordance with procedure contained in this compact for determining reimbursement for economic losses and damages. Whenever the commission shall not agree, within a reasonable time or within 60 days after a formal request from the governor of the state of New Hampshire or the Commonwealth of Massachusetts, concerning reimbursement for loss of taxes or for economic losses and damages at any flood control dam and reservoir previously or hereafter constructed by the United States in the Merrimack River Valley, or concerning the extent, if any, to which reimbursement shall be made for additional loss of taxes and for additional economic losses and damages caused by construction, reconstruction, alteration or use of any such dam for purposes other than flood control, the governor of each signatory state shall designate a person from his state as a member of a board of arbitration, hereinafter called the board, and the members so designated shall choose one additional member who shall be chairman of such

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board. Whenever the members appointed by the governors to such board shall not agree within 60 days on such additional member of the board, the governors of such signatory states shall jointly designate the additional member. The board shall by majority vote decide the question referred to it and shall do so in accordance with the provisions of this compact concerning such reimbursement. The decision of the board on each question referred to it concerning reimbursement for loss of taxes and for economic losses and damages shall be binding on the commission and on each signatory state, notwithstanding any other provision of this compact. ARTICLE VI Nothing contained in this compact shall be construed as a limitation upon the authority of the United States. ARTICLE VII The signatory states agree to appropriate for compensation of agents and employees of the commission for office, administrative, travel and other expenses on recommendation of the commission subject to limitations as follows: The Commonwealth of Massachusetts obligates itself to not more than $17,500 for the first year and to not more than $14,000 in any one year thereafter; the state of New Hampshire obligates itself to not more than $7,500 the first year and to not more than $6,000 in any one year thereafter. ARTICLE VIII Should any part of this compact be held to be contrary to the constitution of either signatory state or of the United States, all other parts of the compact shall continue to be in full force and effect. ARTICLE IX This compact shall become operative and effective when ratified by the Commonwealth of Massachusetts and the state of New Hampshire, and approved by the Congress of the United States. Notice of ratification shall be given by the governor of each state to the governor of the other state and to the President of the United States, and the President of the United States is requested to give notice to the governors of the Commonwealth of Massachusetts and the state of New Hampshire of approval by the Congress of the United States.

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Appendix B-21: New England Interstate Water Pollution Control Compact

Public Law No. 80–292 61 Statutes at Large 682 (1947) Whereas, the growth of population and the development of the territory of the New England states has resulted in serious pollution of certain interstate streams, ponds and lakes, and of tidal waters ebbing and flowing past the boundaries of two or more states; and Whereas, such pollution constitutes a menace to the health, welfare and economic prosperity of the people living in such area; and Whereas, the abatement of existing pollution and the control of future pollution in the interstate waters of the New England area are of prime importance to the people and can best be accomplished through the co-operation of the New England states in the establishment of an interstate agency to work with the states in the field of pollution abatement; Now, therefore, the states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont do agree and are bound as follows: ARTICLE I It is agreed between the signatory states that the provisions of this compact shall apply to streams, ponds and lakes which are contiguous to two or more signatory states or which flow through two or more signatory states or which have a tributary contiguous to two or more signatory states or flowing through two or more signatory states, and also shall apply to tidal waters ebbing and flowing past the boundaries of two states. ARTICLE II There is hereby created the New England Interstate Water Pollution Control Commission (hereinafter referred to as the commission) which shall be a body corporate and politic, having the powers, duties and jurisdiction herein enumerated and such other and additional powers as shall be conferred upon it by the act or acts of a signatory state concurred in by the others. ARTICLE III The commission shall consist of five commissioners, from each signatory state, each of whom shall be a resident voter of the state from which he is appointed. The commissioners shall be chosen in the manner and for the terms provided by law of the state from which they shall be appointed. For each state there shall be on the commission a member representing the state health department, a member representing the state water pollution control board (if such exists), and except where a state in its enabling legislation decides that the best interests of the state will be otherwise served, a member representing municipal interests, a member

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representing industrial interests, and a member representing an agency acting for fisheries or conservation. ARTICLE IV The commission shall annually elect from its members a chairman and vice chairman and shall appoint and at its pleasure remove or discharge such officers. It may appoint and employ a secretary who shall be a professional engineer versed in water pollution and may employ such stenographic or clerical employees as shall be necessary, and at its pleasure remove or discharge such employees. It shall adopt a seal and suitable by-laws and shall promulgate rules and regulations for its management and control. It may maintain an office for the transaction of its business and may meet at any time or place within the signatory states. Meetings shall be held at least twice each year. A majority of the members shall constitute a quorum for the transaction of business but no action of the commission imposing any obligation on any signatory state or on any municipal agency or subdivision thereof or on any person, firm or corporation therein shall be binding unless a majority of the members from such signatory state shall have voted in favor thereof. Where meetings are planned to discuss matters relevant to problems of water pollution control affecting only certain of the signatory states, the commission may vote to authorize special meetings of the commissioners of the states especially concerned. The commission shall keep accurate accounts of all receipts and disbursements and shall make an annual report to the governor and the legislature of each signatory state setting forth in detail the operations and transactions conducted by it pursuant to this compact, and shall make recommendations for any legislative action deemed by it advisable, including amendments to the statutes of the signatory states which may be necessary to carry out the intent and purpose of this compact. The commission shall not incur any obligations for salaries, office, administrative, traveling or other expenses prior to the allotment of funds by the signatory state adequate to meet the same; nor shall the commission pledge the credit of any signatory states. Each signatory state reserves the right to provide hereafter by law for the examination and audit of the accounts of the commission. The commission shall appoint a treasurer who may be a member of the commission, and disbursements by the commission shall be valid only when authorized by the commission and when vouchers therefor have been signed by the secretary and countersigned by the treasurer. The secretary shall be custodian of the records of the commission with authority to attest to and certify such records or copies thereof. ARTICLE V It is recognized, owing to such variable factors as location, size, character and flow and the many varied uses of the waters subject to the terms of this compact, that no single standard of sewage and waste treatment and no single standard of quality of

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receiving waters is practical and that the degree of treatment of sewage and industrial wastes should take into account the classification of the receiving waters according to present and proposed highest use, such as for drinking water supply, industrial and agricultural uses, bathing and other recreational purposes, maintenance and propagation of fish life, shellfish culture, navigation and disposal of wastes. The commission shall establish reasonable physical, chemical and bacteriological standards of water quality satisfactory for various classifications of use. It is agreed that each of the signatory states through appropriate agencies will prepare a classification of its interstate waters in entirety or by portions according to present and proposed highest use and for this purpose technical experts employed by state departments of health and state water pollution control agencies are authorized to confer on questions relating to classification of interstate waters affecting two or more states. Each signatory state agrees to submit its classification of its interstate waters to the commission for approval. It is agreed that after such approval all signatory states through their appropriate state health departments and water pollution control agencies will work to establish programs of treatment of sewage and industrial wastes which will meet standards established by the commission for classified waters. The commission may from time to time make such changes in definitions of classifications and in standards as may be required by changed conditions or as may be necessary for uniformity. ARTICLE VI Each of the signatory states pledges to provide for the abatement of existing pollution and for the control of future pollution of interstate inland and tidal waters as described in Article I, and to put and maintain the waters thereof in a satisfactory condition consistent with the highest classified use of each body of water. ARTICLE VII Nothing in this compact shall be construed to repeal or prevent the enactment of any legislation or prevent the enforcement of any requirement by any signatory state imposing any additional condition or restriction to further lessen the pollution of waters within its jurisdiction. Nothing herein contained shall affect or abate any action now pending brought by any governmental board or body created by or existing under any of the signatory states. ARTICLE VIII The signatory states agree to appropriate for the salaries, office, administrative, travel and other expenses such sum or sums as shall be recommended by the commission. The commonwealth of Massachusetts obligates itself only to the extent of sixty-five hundred dollars in any one year, the state of Connecticut only to the extent of three thousand dollars in any one year, the state of Rhode Island only to the extent of

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fifteen hundred dollars in any one year, and the states of New Hampshire, Maine, and Vermont each only to the extent of one thousand dollars in any one year. ARTICLE IX Should any part of this compact be held to be contrary to the constitution of any signatory state or of the United States, all other parts thereof shall continue to be in full force and effect. ARTICLE X The commission is authorized to discuss with appropriate state agencies in New York state questions of pollution of waters which flow into the New England area from New York state or vice versa and to further the establishment of agreements on pollution abatement to promote the interests of the New York and New England areas. Whenever the commission by majority vote of the members of each signatory state shall have given its approval and the state of New York shall have taken the necessary action to do so, the state of New York shall be a party to this compact for the purpose of controlling and abating the pollution of waterways common to New York and the New England states signatory to this compact but excluding the waters under the jurisdiction of the Interstate Sanitation Commission (New York, New Jersey, and Connecticut). ARTICLE XI This compact shall become effective immediately upon the adoption of the compact by any two contiguous states of New England but only insofar as applies to those states upon approval by Federal law. Thereafter upon ratification by other contiguous states, it shall also become effective as to those states.

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Appendix B-22: New Hampshire-Vermont Interstate Sewage and Waste Disposal Facilities Compact Public Law No. 94–403 90 Statutes at Large 1221 (1976)

ARTICLE I. GENERAL PROVISIONS A. Statement of policy. It is recognized that in certain cases municipalities in New Hampshire and Vermont may, in order to avoid duplication of cost and effort, and in order to take advantage of economies of scale, find it necessary or advisable to enter into agreements whereby joint sewage and waste disposal facilities are erected and maintained. The states of New Hampshire and Vermont recognize the value of and need for such agreements, and adopt this compact in order to authorize their establishment. B. Requirement of congressional approval. This compact shall not become effective until approved by the United States Congress. C. Definitions. 1. “Sewage and waste disposal facilities” shall mean publicly-owned sewers, interceptor sewers, sewerage facilities, sewage treatment facilities and ancillary facilities whether qualifying for grants in aid under Title II of Federal Water Pollution Control Act, as amended, or not. 2. “Municipalities” shall mean cities, towns, village districts or other incorporated units of local government possessing authority to construct, maintain and operate sewage and waste disposal facilities and to raise revenue therefor by bonding and taxation, which may legally impose and collect user charges and impose and enforce pretreatment conditions upon users of sewage and waste disposal facilities. 3. “Water pollution agency” shall mean the agencies within New Hampshire and Vermont possessing regulating authority over the construction, maintenance and operation of sewage and waste disposal facilities and the administration of grants in aid from their respective state and under the Federal Water Pollution Act, as amended, for the construction of such facilities. 4. “Governing body” shall mean the legislative body of the municipality, including in the case of a town, the town meeting, and in the case of a city, the city council, or the board of mayor and aldermen or any similar body in any community not inconsistent with the intent of this definition.

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ARTICLE II. PROCEDURES AND CONDITIONS GOVERNING INTERGOVERNMENTAL AGREEMENTS A. Cooperative Agreements Authorized. Any two or more municipalities, one or more located in New Hampshire and one or more located in Vermont, may enter into cooperative agreements for the construction, maintenance and operation of a single sewage and waste disposal facility serving all the municipalities who are parties thereto. B. Approval of Agreements. Any agreement entered into under this compact shall, prior to becoming effective, be approved by the water pollution agency of each state, and shall be in a form established jointly by said agencies of both states. C. Method of Adopting Agreements. Agreements hereunder shall be adopted by the governing body of each municipality in accordance with existing statutory procedures for the adoption of intergovernmental agreements between municipalities within each state. D. Review and Approval of Plans. The water pollution agency of the state in which any part of a sewage and waste disposal facility which is proposed under an agreement pursuant to this compact is proposed to be or is located is hereby authorized and required, to the extent such authority exists under its state law, to review and approve or disapprove all reports, designs, plans and other engineering documents required to apply for federal grants in aid or grants in aid from said agency’s state, and to supervise and regulate the planning, design, construction, maintenance and operation of said part of the facility. E. Federal Grants and Financing. 1. Application for federal grants in aid for the planning, design and construction of sewage and waste disposal facilities other than sewers shall be made jointly by the agreeing municipalities, with the amount of the grant attributable to each state’s allotment to be based upon the relative total capacity reserves allocated to the municipalities in the respective states determined jointly by the respective state water pollution agencies. Each municipality shall be responsible for applying for federal grants for sewers to be located within the municipal boundaries. 2. Municipalities are hereby authorized to raise and appropriate revenue for the purpose of contributing pro rata to the planning, design and construction cost of sewage and waste disposal facilities constructed and operated as joint facilities pursuant to this compact.

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F. Contents of Agreements. Agreements entered into pursuant to this compact shall contain the following: 1. A uniform system of charges for industrial users of the joint sewage and waste disposal facilities. 2. A uniform set of pretreatment standards for industrial users of the joint sewage and waste disposal facilities. 3. A provision for the pro rata sharing of operating and maintenance costs based upon the ratio of actual flows to the plant as measured by devices installed to gauge such flows with reasonable accuracy. 4. A provision establishing a procedure for the arbitration and resolution of disputes. 5. A provision establishing a procedure for the carriage of liability insurance, if such insurance is necessary under the laws of either state. 6. A provision establishing a procedure for the modification of the agreement. 7. A provision establishing a procedure for the adoption of regulations for the use, operation and maintenance of the joint facilities. 8. A provision setting forth the means by which the municipality that does not own the joint sewage and waste disposal facility will pay the other municipality its share of the maintenance and operating costs of said facility. G. Nothing in this compact shall be construed to authorize the establishment of interstate districts, authorities, or any other new governmental or quasigovernmental entity. ARTICLE III. EFFECTIVE DATE A. This compact shall become effective when a bill of the New Hampshire general assembly which incorporates the compact becomes a law in New Hampshire and when it is approved by the United States Congress.

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Appendix B-23: Ohio River Valley Water Sanitation Compact

Public Law No. 76–739 54 Statutes at Large 752 (1940) Whereas a substantial part of the territory of each of the signatory states is situated within the drainage basin of the Ohio River; and Whereas the rapid increase in the population of the various metropolitan areas situated within the Ohio drainage basin, and the growth in industrial activity within that area, have resulted in recent years in an increasingly serious pollution of the waters and streams within the said drainage basin, constituting a grave menace to the health, welfare, and recreational facilities of the people living in such basin, and occasioning great economic loss; and Whereas the control of future pollution and the abatement of existing pollution in the waters of said basin are of prime importance to the people thereof, and can best be accomplished through the cooperation of the states situated therein, by and through a joint or common agency; Now, therefore, the states of Illinois, Indiana, Kentucky, New York, Ohio, Pennsylvania, Tennessee and West Virginia do hereby covenant and agree as follows: ARTICLE I Each of the signatory states pledges to each of the other signatory states faithful cooperation in the control of future pollution in and abatement of existing pollution from the rivers, streams and waters in the Ohio river basin which flow through, into, or border upon any of such signatory states, and in order to effect such object, agrees to enact any necessary legislation to enable each such state to place and maintain the waters of said basin in a satisfactory sanitary condition, available for safe and satisfactory use as public and industrial water supplies after reasonable treatment, suitable for recreational usage, capable of maintaining fish and other aquatic life, free from unsightly or malodorous nuisances due to floating solids or sludge deposits, and adaptable to such other uses as may be legitimate. ARTICLE II The signatory states hereby create a district to be known as the “Ohio river valley water sanitation district,” hereinafter called the district, which shall embrace all territory within the signatory states the water in which flows ultimately into the Ohio river, or its tributaries. ARTICLE III The signatory states hereby create the “Ohio river valley water sanitation commission,” hereinafter called the commission, which shall be a body corporate, with the

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powers and duties set forth herein, and such additional powers as may be conferred upon it by subsequent action of the respective legislatures of the signatory states or by act or acts of the congress of the United States. ARTICLE IV The commission shall consist of three commissioners from each state, each of whom shall be a citizen of the state from which he is appointed, and three commissioners representing the United States government. The commissioners from each state shall be chosen in the manner and for the terms provided by the laws of the state from which they shall be appointed, and any commissioner may be removed or suspended from office as provided by the law of the state from which he shall be appointed. The commissioners representing the United States shall be appointed by the president of the United States, or in such other manner as may be provided by congress. The commissioners shall serve without compensation, but shall be paid their actual expenses incurred in and incident to the performance of their duties; but nothing herein shall prevent the appointment of an officer or employee of any state or of the United States government. ARTICLE V The commission shall elect from its number a chairman and vice-chairman, and shall appoint, and at its pleasure remove or discharge, such officers and legal, clerical, expert and other assistants as may be required to carry the provisions of this compact into effect, and shall fix and determine their duties, qualifications and compensation. It shall adopt a seal and suitable by-laws, and shall adopt and promulgate rules and regulations for its management and control. It may establish and maintain one or more offices within the district for the transaction of its business, and may meet at any time or place. One or more commissioners from a majority of the member states shall constitute a quorum for the transaction of business. The commission shall submit to the governor of each state, at such time as he may request, a budget of its estimated expenditures for such period as may be required by the laws of such state for presentation to the legislature thereof. The commission shall keep accurate books of account, showing in full its receipts and disbursements, and said books of account shall be open at any reasonable time to the inspection of such representatives of the respective signatory states as may be duly constituted for that purpose. On or before the first day of December of each year, the commission shall submit to the respective governors of the signatory states a full and complete report of its activities for the preceding year. The commission shall not incur any obligations of any kind prior to the making of appropriations adequate to meet the same; nor shall the commission pledge

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the credit of any of the signatory states, except by and with the authority of the legislature thereof. ARTICLE VI It is recognized by the signatory states that no single standard for the treatment of sewage or industrial wastes is applicable in all parts of the district due to such variable factors as size, flow, location, character, self-purification, and usage of waters within the district. The guiding principle of this compact shall be that pollution by sewage or industrial wastes originating within a signatory state shall not injuriously affect the various uses of the interstate waters as hereinbefore defined. All sewage from municipalities or other political subdivisions, public or private institutions, or corporations, discharged or permitted to flow into these portions of the Ohio river and its tributary waters which form boundaries between, or are contiguous to, two or more signatory states, or which flow from one signatory state into another signatory state, shall be so treated, within a time reasonable for the construction of the necessary works, as to provide for substantially complete removal of settleable solids, and the removal of not less than forty-five per centum of the total suspended solids; provided that, in order to protect the public health or to preserve the waters for other legitimate purposes, including those specified in article one, in specific instances such higher degree of treatment shall be used as may be determined to be necessary by the commission after investigation, due notice and hearing. All industrial wastes discharged or permitted to flow into the aforesaid waters shall be modified or treated, within a time reasonable for the construction of the necessary works, in order to protect the public health or to preserve the waters for other legitimate purposes, including those specified in article one, to such degree as may be determined to be necessary by the commission after investigation, due notice and hearing. All sewage or industrial wastes discharged or permitted to flow into tributaries of the aforesaid waters situated wholly within one state shall be treated to that extent, if any, which may be necessary to maintain such waters in a sanitary and satisfactory condition at least equal to the condition of the waters of the interstate stream immediately above the confluence. The commission is hereby authorized to adopt, prescribe and promulgate rules, regulations and standards for administering and enforcing the provisions of this article. ARTICLE VII Nothing in this compact shall be construed to limit the powers of any signatory state, or to repeal or prevent the enactment of any legislation or the enforcement of any requirement by any signatory state, imposing additional conditions and restrictions to further lessen or prevent the pollution of waters within its jurisdiction.

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ARTICLE VIII The commission shall conduct a survey of the territory included within the district, shall study the pollution problems of the district, and shall make a comprehensive report for the prevention or reduction of stream pollution therein. In preparing such report, the commission shall confer with any national or regional planning body which may be established, and any department of the federal government authorized to deal with matters relating to the pollution problems of the district. The commission shall draft and recommend to the governors of the various signatory states uniform legislation dealing with the pollution of rivers, streams and waters and other pollution problems within the district. The commission shall consult with and advise the various states, communities, municipalities, corporations, persons, or other entities with regard to particular problems connected with the pollution of waters, particularly with regard to the construction of plants for the disposal of sewage, industrial and other waste. The commission shall, more than one month prior to any regular meeting of the legislature of any state which is a party thereto, present to the governor of the state its recommendations relating to enactments to be made by any legislature in furthering the intents and purposes of this compact. ARTICLE IX The commission may from time to time, after investigation and after a hearing, issue an order or orders upon any municipality, corporation, person, or other entity discharging sewage or industrial waste into the Ohio river or any other river, stream or water, any part of which constitutes any part of the boundary line between any two or more of the signatory states, or into any stream any part of which flows from any portion of one signatory state through any portion of another signatory state. Any such order or orders may prescribe the date on or before which such discharge shall be wholly or partially discontinued, modified or treated or otherwise disposed of. The commission shall give reasonable notice of the time and place of the hearing to the municipality, corporation or other entity against which such order is proposed. No such order shall go into effect unless and until it receives the assent of at least a majority of the commissioners from each of not less than a majority of the signatory states; and no such order upon a municipality, corporation, person or entity in any state shall go into effect unless and until it receives the assent of not less than a majority of the commissioners from such state. It shall be the duty of the municipality, corporation, person or other entity to comply with any such order issued against it or him by the commission, and any court of general jurisdiction or any United States district court in any of the signatory states shall have the jurisdiction, by mandamus, injunction, specific performance or other form of remedy, to enforce any such order against any municipality, corporation or other entity domiciled or located within such state or whose discharge of the waste takes place within or adjoining such state, or against any employee,

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department or subdivision of such municipality, corporation, person or other entity; provided, however, such court may review the order and affirm, reverse or modify the same upon any of the grounds customarily applicable in proceedings for court review of administrative decisions. The commission or, at its request, the attorneygeneral or other law enforcing official, shall have power to institute in such court any action for the enforcement of such order. ARTICLE X The signatory states agree to appropriate for the salaries, office and other administrative expenses, their proper proportion of the annual budget as determined by the commission and approved by the governors of the signatory states, one-half of such amount to be prorated among the several states in proportion to their population within the district at the last preceding federal census, the other half to be prorated in proportion to their land area within the district. ARTICLE XI This compact shall become effective upon ratification by the legislatures of a majority of the states located within the district and upon approval by the congress of the United States; and shall become effective as to any additional states signing thereafter at the time of such signing. In witness whereof, the various signatory states have executed this compact through their respective compact commissioners.

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Appendix B-24: Pecos River Compact

Public Law No. 81–91 63 Statutes at Large 159 (1949) The State of New Mexico and the State of Texas, acting through their Commissioners, John H. Bliss for the State of New Mexico and Charles H. Miller for the State of Texas, after negotiations participated in by Berkeley Johnson, appointed by the President as the representative of the United States of America, have agreed respecting the uses, apportionment and deliveries of the water of the Pecos River as follows: ARTICLE I The major purposes of this Compact are to provide for the equitable division and apportionment of the use of the waters of the Pecos River; to promote interstate comity; to remove causes of present and future controversies; to make secure and protect present development within the states; to facilitate the construction of works for, (a) the salvage of water, (b) the more efficient use of water, and (c) the protection of life and property from floods. ARTICLE II As used in this Compact: (a) The term “Pecos River” means the tributary of the Rio Grande which rises in north-central New Mexico and flows in a southerly direction through New Mexico and Texas and joins the Rio Grande near the town of Langtry, Texas, and includes all tributaries of said Pecos River. (b) The term “Pecos River Basin” means all of the contributing drainage area of the Pecos River and its tributaries above its mouth near Langtry, Texas. (c) “New Mexico” and “Texas” mean the State of New Mexico and the State of Texas, respectively; “United States” means the United States of America. (d) The term “Commission” means the agency created by this Compact for the administration thereof. (e) The term “deplete by man’s activities” means to diminish the stream flow of the Pecos River at any given point as the result of beneficial consumptive uses of water within the Pecos River Basin above such point. For the purposes of this Compact it does not include the diminution of such flow by encroachment of salt cedars or other like growth, or by deterioration of the channel of the stream. (f) The term “Report of the Engineering Advisory Committee” means that certain report of the Engineering Advisory Committee dated January, 1948, and all appendices thereto; including, basic data, processes, and analyses utilized in

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Appendix B preparing that report, all of which were reviewed, approved, and adopted by the Commissioners signing this Compact at a meeting held in Santa Fe, New Mexico, on December 3, 1948, and which are included in the Minutes of that meeting.

(g) The term “1947 condition” means that situation in the Pecos River Basin as described and defined in the Report of the Engineering Advisory Committee. In determining any question of fact hereafter arising as to such situation, reference shall be made to, and decisions shall be based on, such report. (h) The term “water salvaged” means that quantity of water which may be recovered and made available for beneficial use and which quantity of water under the 1947 condition was non-beneficially consumed by natural processes. (i) The term “unappropriated flood waters” means water originating in the Pecos River Basin above Red Bluff Dam in Texas, the impoundment of which will not deplete the water usable by the storage and diversion facilities existing in either state under the 1947 condition and which if not impounded will flow past Girvin, Texas. ARTICLE III (a) Except as stated in paragraph (f) of this Article, New Mexico shall not deplete by man’s activities the flow of the Pecos River at the New Mexico-Texas state line below an amount which will give to Texas a quantity of water equivalent to that available to Texas under the 1947 condition. (b) Except as to the unappropriated flood waters thereof, the apportionment of which is included in and provided for by paragraph (f) of this Article, the beneficial consumptive use of the waters of the Delaware River is hereby apportioned to Texas, and the quantity of such beneficial consumptive use shall be included in determining waters received under the provisions of paragraph (a) of this Article. (c) The beneficial consumptive use of water salvaged in New Mexico through the construction and operation of a project or projects by the United States or by joint undertakings of Texas and New Mexico, is hereby apportioned fortythree per cent (43%) to Texas and fifty-seven per cent (57%) to New Mexico.

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(d) Except as to water salvaged, apportioned in paragraph (c) of this Article, the beneficial consumptive use of water which shall be non-beneficially consumed, and which is recovered, is hereby apportioned to New Mexico but not to have the effect of diminishing the quantity of water available to Texas under the 1947 condition. (e) Any water salvaged in Texas is hereby apportioned to Texas. (f) Beneficial consumptive use of unappropriated flood waters is hereby apportioned fifty per cent (50%) to Texas and fifty per cent (50%) to New Mexico. ARTICLE IV (a) New Mexico and Texas shall cooperate to support legislation for the authorization and construction of projects to eliminate nonbeneficial consumption of water. (b) New Mexico and Texas shall cooperate with agencies of the United States to devise and effectuate means of alleviating the salinity conditions of the Pecos River. (c) New Mexico and Texas each may: (i) Construct additional reservoir capacity to replace reservoir capacity made unusable by any cause. (ii) Construct additional reservoir capacity for the utilization of water salvaged and unappropriated flood waters apportioned by this Compact to such state. (iii) Construct additional reservoir capacity for the purpose of making more efficient use of water apportioned by this Compact to such state. (d) Neither New Mexico nor Texas will oppose the construction of any facilities permitted by this Compact, and New Mexico and Texas will cooperate to obtain the construction of facilities that will be of joint benefit to the two states. (e) The Commission may determine the conditions under which Texas may store water in works constructed in and operated by New Mexico. (f) No reservoir shall be constructed and operated in New Mexico above Avalon Dam for the sole benefit of Texas unless the Commission shall so determine. (g) New Mexico and Texas each has the right to construct and operate works for the purpose of preventing flood damage.

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(h) All facilities shall be operated in such manner as to carry out the terms of this Compact. ARTICLE V (a) There is hereby created an interstate administrative agency to be known as the “Pecos River Commission.” The Commission shall be composed of one Commissioner representing each of the states of New Mexico and Texas, designated or appointed in accordance with the laws of each such state, and, if designated by the President, one Commissioner representing the United States. The President is hereby requested to designate such a Commissioner. If so designated, the Commissioner representing the United States shall be the presiding officer of the Commission, but shall not have the right to vote in any of the deliberations of the Commission. All members of the Commission must be present to constitute a quorum. (b) The salaries and personal expenses of each Commissioner shall be paid by the government which he represents. All other expenses which are incurred by the Commission incident to the administration of this Compact and which are not paid by the United States shall be borne equally by the two states. On or before November 1 of each even numbered year the Commission shall adopt and transmit to the Governors of the two states and to the President a budget covering an estimate of its expenses for the following two years. The payment of the expenses of the Commission and of its employees shall not be subject to the audit and accounting procedures of either of the two states. However, all receipts and disbursements of funds handled by the Commission shall be audited yearly by a qualified independent public accountant and the report of the audit shall be included in, and become a part of, the annual report of the Commission. (c) The Commission may appoint a secretary who, while so acting, shall not be an employee of either state. He shall serve for such term, receive such salary, and perform such duties as the Commission may direct. The Commission may employ such engineering, legal, clerical, and other personnel as in its judgment may be necessary for the performance of its functions under this Compact. In the hiring of employees the Commission shall not be bound by the civil service laws of either state. (d) The Commission, so far as consistent with this Compact, shall have power to: 1. Adopt rules and regulations; 2. Locate, establish, construct, operate, maintain, and abandon water gaging stations, independently or in cooperation with appropriate governmental agencies;

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3. Engage in studies of water supplies of the Pecos River and its tributaries, independently or in cooperation with appropriate governmental agencies; 4. Collect, analyze, correlate, preserve and report on data as to the stream flows, storage, diversions, salvage, and use of the waters of the Pecos River and its tributaries, independently or in cooperation with appropriate governmental agencies; 5. Make findings as to any change in depletion by man’s activities in New Mexico, and on the Delaware River in Texas; 6. Make findings as to the deliveries of water at the New Mexico-Texas state line; 7. Make findings as to the quantities of water salvaged and the amount thereof delivered at the New Mexico-Texas state line; 8. Make findings as to quantities of water non-beneficially consumed in New Mexico; 9. Make findings as to quantities of unappropriated flood waters; 10. Make findings as to the quantities of reservoir losses from reservoirs constructed in New Mexico which may be used for the benefit of both states, and as to the share thereof charged under Article VI hereof to each of the states; 11. Acquire and hold such personal and real property as may be necessary for the performance of its duties hereunder and to dispose of the same when no longer required; 12. Perform all functions required of it by this Compact and do all things necessary, proper or convenient in the performance of its duties hereunder, independently or in cooperation with appropriate governmental agencies; 13. Make and transmit annually to the Governors of the signatory states and to the President of the United States on or before the last day of February of each year, a report covering the activities of the Commission for the preceding year. (e) The Commission shall make available to the Governor of each of the signatory states any information within its possession at any time, and shall always provide free access to its records by the Governors of each of the States, or their representatives, or authorized representatives of the United States.

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(f) Findings of fact made by the Commission shall not be conclusive in any court, or before any agency or tribunal, but shall constitute prima facie evidence of the facts found. (g) The organization meeting of the Commission shall be held within four months from the effective date of this Compact. ARTICLE VI The following principles shall govern in regard to the apportionment made by Article III of this Compact: (a) The Report of the Engineering Advisory Committee, supplemented by additional data hereafter accumulated, shall be used by the Commission in making administrative determinations. (b) Unless otherwise determined by the Commission, depletions by man’s activities, state-line flows, quantities of water salvaged, and quantities of unappropriated flood waters shall be determined on the basis of three-year periods reckoned in continuing progressive series beginning with the first day of January next succeeding the ratification of this Compact. (c) Unless and until a more feasible method is devised and adopted by the Commission the inflow-outflow method, as described in the Report of the Engineering Advisory Committee, shall be used to: (i) Determine the effect on the state-line flow of any change in depletions by man’s activities or otherwise, of the waters of the Pecos River in New Mexico. (ii) Measure at or near the Avalon Dam in New Mexico the quantities of water salvaged. (iii) Measure at or near the state line any water released from storage for the benefit of Texas as provided for in subparagraph (d) of this Article. (iv) Measure the quantities of unappropriated flood waters apportioned to Texas which have not been stored and regulated by reservoirs in New Mexico. (v) Measure any other quantities of water required to be measured under the terms of this Compact which are susceptible of being measured by the inflow-outflow method. (d) If unappropriated flood waters apportioned to Texas are stored in facilities constructed in New Mexico, the following principles shall apply:

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(i) In case of spill from a reservoir constructed in and operated by New Mexico, the water stored to the credit of Texas will be considered as the first water to spill. (ii) In case of spill from a reservoir jointly constructed and operated, the water stored to the credit of either state shall not be affected. (iii) Reservoir losses shall be charged to each state in proportion to the quantity of water belonging to that state in storage at the time the losses occur. (iv) The water impounded to the credit of Texas shall be released by New Mexico on the demand of Texas. (e) Water salvaged shall be measured at or near the Avalon Dam in New Mexico and to the quantity thereof shall be added a quantity equal to the quantity of salvaged water depleted by man’s activities above Avalon Dam. The quantity of water salvaged that is apportioned to Texas shall be delivered by New Mexico at the New Mexico-Texas state line. The quantity of unappropriated flood waters impounded under paragraph (d) of this Article, when released shall be delivered by New Mexico at the New Mexico-Texas state line in the quantity released less channel losses. The unappropriated flood waters apportioned to Texas by this Compact that are not impounded in reservoirs in New Mexico shall be measured and delivered at the New Mexico-Texas state line. (f) Beneficial use shall be the basis, the measure, and the limit of the right to use water. ARTICLE VII In the event of importation of water by man’s activities to the Pecos River Basin from any other river basin the state making the importation shall have the exclusive use of such imported water. ARTICLE VIII The provisions of this Compact shall not apply to, or interfere with, the right or power of either signatory state to regulate within its boundaries the appropriation, use and control of water, not inconsistent with its obligations under this Compact. ARTICLE IX In maintaining the flows at the New Mexico-Texas state line required by this Compact, New Mexico shall in all instances apply the principle of prior appropriation within New Mexico.

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ARTICLE X The failure of either state to use the water, or any part thereof, the use of which is apportioned to it under the terms of this Compact, shall not constitute a relinquishment of the right to such use, nor shall it constitute a forfeiture or abandonment of the right to such use. ARTICLE XI Nothing in this Compact shall be construed as: (a) Affecting the obligations of the United States under the Treaty with the United Mexican States (Treaty Series 994); (b) Affecting any rights or powers of the United States, its agencies or instrumentalities, in or to the waters of the Pecos River, or its capacity to acquire rights in and to the use of said waters; (c) Subjecting any property of the United States, its agencies or instrumentalities, to taxation by any state or subdivision thereof, or creating any obligation on the part of the United States, its agencies or instrumentalities, by reason of the acquisition, construction or operation of any property or works of whatever kind, to make any payment to any state or political subdivision thereof, state agency, municipality or entity whatsoever, in reimbursement for the loss of taxes; (d) Subjecting any property of the United States, its agencies or instrumentalities, to the laws of any state to an extent other than the extent to which such laws would apply without regard to this Compact. ARTICLE XII The consumptive use of water by the United States or any of its agencies, instrumentalities or wards shall be charged as a use by the state in which the use is made; provided, that such consumptive use incident to the diversion, impounding, or conveyance of water in one state for use in the other state shall be charged to such latter state. ARTICLE XIII This Compact shall not be construed as establishing any general principle or precedent applicable to other interstate streams. ARTICLE XIV This Compact may be terminated at any time by appropriate action of the legislatures of both of the signatory states. In the event of such termination, all rights established under it shall continue unimpaired.

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ARTICLE XV This Compact shall become binding and obligatory when it shall have been ratified by the legislature of each State and approved by the Congress of the United States. Notice of ratification by the legislature of each State shall be given by the Governor of that State to the Governor of the other State and to the President of the United States, and the President is hereby requested to give notice to the Governor of each State of approval by the Congress of the United States. In Witness Whereof, the Commissioners have executed three counterparts hereof each of which shall be and constitute an original, one of which shall be deposited in the archives of the Department of State of the United States, and one of which shall be forwarded to the Governor of each State. Done at the City of Santa Fe, State of New Mexico, this 3rd day of December, 1948.

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Appendix B-25: Potomac River Basin Interstate Compact

Public Law No. 76–93 54 Statutes at Large 748 (1940) as amended Public Law No. 91–407 84 Statutes at Large 856 (1970) Whereas it is recognized that abatement of existing pollution and the control of future pollution of interstate streams can best be promoted through a joint agency representing the several states located wholly or in part within the area drained by any such interstate stream; and Whereas the Congress of the United States has given its consent to the states of Maryland and West Virginia, the Commonwealths of Pennsylvania and Virginia, and the District of Columbia to enter into a compact providing for the creation of a conservancy district to consist of the drainage basin of the Potomac River and the main and tributary streams therein, for the purpose of regulating, controlling, preventing, or otherwise rendering unobjectionable and harmless the pollution of the waters of said Potomac drainage area by sewage and industrial and other wastes; and Whereas the regulation, control and prevention of pollution is directly affected by the quantities of water in said streams and the uses to which such water may be put, thereby requiring integration and coordination of the planning for the development and use of the water and associated land resources through cooperation with, and support and coordination of, the activities of federal, state, local and private agencies, groups, and interests concerned with the development, utilization and conservation of the water and associated land resources of the said conservancy district; Now, therefore, the states of Maryland and West Virginia, the Commonwealths of Pennsylvania and Virginia, and the District of Columbia, hereinafter designated signatory bodies, do hereby create the Potomac Valley Conservancy District, hereinafter designated the Conservancy District comprising all of the area drained by the Potomac River and its tributaries; and also, do hereby create, as an agency of each signatory body, the Interstate Commission on the Potomac River Basin, hereinafter designated the Commission, under the articles of organization as set forth below. ARTICLE I The Interstate Commission on the Potomac River Basin shall consist of three members from each signatory body and three members appointed by the President of the United States. Said Commissioners, other than those appointed by the President, shall be chosen in a manner and for the terms provided by law of the signatory body from which they are appointed and shall serve without compensation from

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the Commission but shall be paid by the Commission their actual expenses incurred and incident to the performance of their duties. (A) The Commission shall meet and organize within thirty days after the effective date of this compact, shall elect from its number a chairman and vicechairman, shall adopt suitable bylaws, shall make, adopt, and promulgate such rules and regulations as are necessary for its management and control, and shall adopt a seal. (B) The Commission shall appoint and, at its pleasure, remove or discharge such officers and legal, engineering, clerical, expert and other assistants as may be required to carry the provisions of this compact into effect, and shall determine their qualifications and fix their duties and compensation. Such personnel as may be employed shall be employed without regard to any civil service or other similar requirements for employees of any of the signatory bodies. The Commission may maintain one or more offices for the transaction of its business and may meet at any time or place within the area of the signatory bodies. (C) The Commission shall keep accurate accounts of all receipts and disbursements and shall make an annual report thereof and shall in such report set forth in detail the operations and transactions conducted by it pursuant to this compact. The Commission, however, shall not incur any obligations for administrative or other expenses prior to the making of appropriations adequate to meet the same nor shall it in any way pledge the credit of any of the signatory bodies. Each of the signatory bodies reserves the right to make at any time an examination and audit of the accounts of the Commission. (D) A quorum of the Commission shall, for the transaction of business, the exercise of any powers, or the performance of any duties, consist of at least six members of the Commission who shall represent at least a majority of the signatory bodies; provided, however, that no action of the Commission relating to policy or stream classification or standards shall be binding on any one of the signatory bodies unless at least two of the Commissioners from such signatory body shall vote in favor thereof. ARTICLE II The Commission shall have the power: (A) To collect, analyze, interpret, coordinate, tabulate, summarize and distribute technical and other data relative to, and to conduct studies, sponsor research and prepare reports on, pollution and other water problems of the Conservancy District.

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(B) To cooperate with the legislative and administrative agencies of the signatory bodies, or the equivalent thereof, and with other commissions and federal, local governmental and nongovernmental agencies, organizations, groups and persons for the purpose of promoting uniform laws, rules or regulations for the abatement and control of pollution of streams and the utilization, conservation and development of the water and associated land resources in the said Conservancy District. (C) To disseminate to the public information in relation to stream pollution problems and the utilization, conservation and development of the water and associated land resources of the Conservancy District and on the aims, views, purposes and recommendations of the Commission in relation thereto. (D) To cooperate with, assist, and provide liaison for and among, public and nonpublic agencies and organizations concerned with pollution and other water problems in the formulation and coordination of plans, programs and other activities relating to stream pollution or to the utilization, conservation or development of water or associated land resources, and to sponsor cooperative action in connection with the foregoing. (E) In its discretion and at any time during or after the formulation thereof, to review and to comment upon any plan or program of any public or private agency or organization relating to stream pollution or the utilization, conservation, or development of water or associated land resources. (F) (1) To make, and, if needful from time to time, revise and to recommend to the signatory bodies, reasonable minimum standards for the treatment of sewage and industrial or other wastes now discharged or to be discharged in the future to the streams of the Conservancy District, and also, for cleanliness of the various streams in the Conservancy District. (2) To establish reasonable physical, chemical and bacteriological standards of water quality satisfactory for various classifications of use. It is agreed that each of the signatory bodies through appropriate agencies will prepare a classification of its interstate waters in the District in entirety or by portions according to present and proposed highest use, and for this purpose technical experts employed by appropriate state water pollution control agencies are authorized to confer on questions relating to classification of interstate waters affecting two or more states. Each signatory body agrees to submit its classification of its interstate waters to the Commission with its recommendations thereon. The Commission shall review such classification and recommendations and accept or return the same with its comments. In the event of

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return, the signatory body will consider the comments of the Commission and resubmit the classification proposal, with or without amendment, with any additional comments for further action by the Commission. It is agreed that after acceptance of such classification, the signatory body through its appropriate state water pollution control agencies will work to establish programs of treatment of sewage and industrial wastes which will meet or exceed standards established by the Commission for classified waters. The Commission may from time to time make such changes in definitions of classifications and in standards as may be required by changed conditions or as may be necessary for uniformity and in a manner similar to that in which these standards and classifications were originally established. It is recognized, owing to such variable factors as location, size, character and flow and the many varied uses of the waters subject to the terms of this compact, that no single standard of sewage and waste treatment and no single standard of quality of receiving waters is practical and that the degree of treatment of sewage and industrial wastes should take into account the classification of the receiving waters according to present and proposed highest use, such as for drinking water supply, bathing and other recreational purposes, maintenance and propagation of fish life, industrial and agricultural uses, navigation and disposal of wastes. ARTICLE III For the purposes of dealing with the problems of pollution and of water and associated land resources in specific areas which directly affect two or more, but not all, signatory bodies, the Commission may establish sections of the Commission consisting of the Commissioners from such affected signatory bodies; provided, however, that no signatory body may be excluded from any section in which it wishes to participate. The Commissioners appointed by the President of the United States may participate in any section. The Commission shall designate, and from time to time may change, the geographical area with respect to which each section shall function. Each section shall, to such extent as the Commission may from time to time authorize, have authority to exercise and perform with respect to its designated geographical area any power or function vested in the Commission, and in addition may exercise such other powers and perform such functions as may be vested in such section by the laws of any signatory body or by the laws of the United States. The exercise or performance by a section of any power or function vested in the Commission may be financed by the Commission, but the exercise or performance of powers or functions vested solely in a section shall be financed through funds provided in advance by the bodies, including the United States, participating in such section.

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ARTICLE IV The moneys necessary to finance the Commission in the administration of its business in the Conservancy District shall be provided through appropriations from the signatory bodies and the United States, in the manner prescribed by the laws of the several signatory bodies and of the United States, and in amounts as follows: The pro rata contribution shall be based on such factors as population; the amount of industrial and domestic pollution; and a flat service charge, as shall be determined from time to time by the Commission, subject, however, to the approval, ratification and appropriation of such contribution by the several signatory bodies. ARTICLE V Pursuant to the aims and purposes of this compact, the signatory bodies mutually agree: 1. Faithful cooperation in the abatement of existing pollution and the prevention of future pollution in the streams of the Conservancy District and in planning for the utilization, conservation and development of the water and associated land resources thereof. 2. The enactment of adequate and, insofar as is practicable, uniform legislation for the abatement and control of pollution and control and use of such streams. 3. The appropriation of biennial sums on the proportionate basis as set forth in Article IV. ARTICLE VI This compact shall become effective immediately after it shall have been ratified by the majority of the legislatures of the states of Maryland and West Virginia, the Commonwealths of Pennsylvania and Virginia, and by the Commissioners of the District of Columbia, and approved by the Congress of the United States; provided, however, that this compact shall not be effective as to any signatory body until ratified thereby. ARTICLE VII Any signatory body may, by legislative act, after one year’s notice to the Commission, withdraw from this compact.

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Appendix B-26: Red River Compact Public Law No. 96–564 94 Statutes at Large 3305 (1980)

PREAMBLE The States of Arkansas, Louisiana, Oklahoma, and Texas, pursuant to the acts of their respective Governors or legislatures, or both, being moved by considerations of interstate comity, have resolved to compact with respect to the water of the Red River and its tributaries. By Act of Congress, Public Law No. 346 (84th Congress, First Session), the consent of the United States has been granted for said states to negotiate and enter into a compact providing for an equitable apportionment of such water; and pursuant to that Act the President has designated the representative of the United States. Further, the consent of Congress has been given for two or more states to negotiate and enter into agreements relating to water pollution control by the provisions of the Federal Water Pollution Control Act (P.L. 92–500, 33 U.S.C. Subsection 1251 et seq.). The Signatory States acting through their duly authorized Compact Commissioners, after several years of negotiations, have agreed to an equitable apportionment of the water of the Red River and its tributaries and do hereby submit and recommend that this compact be adopted by the respective legislatures and approved by Congress as hereinafter set forth: ARTICLE I PURPOSES Sec. 1.01. The principal purposes of this Compact are: (a) To promote interstate comity and remove causes of controversy between each of the affected states by governing the use, control and distribution of the interstate water of the Red River and its tributaries; (b) To provide an equitable apportionment among the Signatory States of the water of the Red River and its tributaries; (c) To promote an active program for the control and alleviation of natural deterioration and pollution of the water of the Red River Basin and to provide for enforcement of the laws related thereto; (d) To provide the means for an active program for the conservation of water, protection of lives and property from floods, improvement of water quality, development of navigation and regulation of flows in the Red River Basin; and

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(e) To provide a basis for state or joint state planning and action by ascertaining and identifying each state’s share in the interstate water of the Red River Basin and the apportionment thereof. ARTICLE II GENERAL PROVISIONS Sec. 2.01. Each Signatory State may use the water allocated to it by this Compact in any manner deemed beneficial by that state. Each state may freely administer water rights and uses in accordance with the laws of that state, but such uses shall be subject to the availability of water in accordance with the apportionments made by this Compact. Sec. 2.02. The use of water by the United States in connection with any individual Federal project shall be in accordance with the Act of Congress authorizing the project and the water shall be charged to the state or states receiving the benefit therefrom. Sec. 2.03. Any Signatory State using the channel of Red River or its tributaries to convey stored water shall be subject to an appropriate reduction in the amount which may be withdrawn at the point of removal to account for transmission losses. Sec. 2.04. The failure of any state to use any portion of the water allocated to it shall not constitute relinquishment or forfeiture of the right to such use. Sec. 2.05. Each Signatory State shall have the right to: (a) Construct conservation storage capacity for the impoundment of water allocated by this Compact; (b) Replace within the same area any storage capacity recognized or authorized by this Compact made unusable by any cause, including losses due to sediment storage; (c) Construct reservoir storage capacity for the purposes of flood and sediment control as well as storage of water which is either imported or is to be exported if such storage does not adversely affect the delivery of water apportioned to any other Signatory State; and (d) Use the bed and banks of the Red River and its tributaries to convey stored water, imported or exported water, and water apportioned according to this Compact. Sec. 2.06. Signatory States may cooperate to obtain construction of facilities of joint benefits to such states.

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Sec. 2.07. Nothing in this Compact shall be deemed to impair or affect the powers, rights, or obligations of the United States, or those claiming under its authority, in, over and to water of the Red River Basin. Sec. 2.08. Nothing in this Compact shall be construed to include within the water apportioned by this Compact any water consumed in each state by livestock or for domestic purposes; provided, however, the storage of such water is in accordance with the laws of the respective states but any such impoundment shall not exceed 200 acre-feet, or such smaller quantity as may be provided for by the laws of each state. Sec. 2.09. In the event any state shall import water into the Red River Basin from any other river basin, the Signatory State making the importation shall have the use of such imported water. Sec. 2.10. Nothing in this Compact shall be deemed to: (a) Interfere with or impair the right or power of any Signatory State to regulate within its boundaries the appropriation, use, and control of water, or quality of water, not inconsistent with its obligations under this Compact; (b) Repeal or prevent the enactment of any legislation or the enforcement of any requirement by any Signatory State imposing any additional conditions or restrictions to further lessen or prevent the pollution or natural deterioration of water within its jurisdiction; provided nothing contained in this paragraph shall alter any provision of this Compact dealing with the apportionment of water or the rights thereto; or (c) Waive any state’s immunity under the Eleventh Amendment of the Constitu tion of the United States, or as constituting the consent of any state to be sued by its own citizens. Sec. 2.11. Accounting for apportionment purposes on interstate streams shall not be mandatory under the terms of the Compact until one or more affected states deem the accounting necessary. Sec. 2.12. For the purposes of apportionment of the water among the Signatory States, the Red River is hereby divided into the following major subdivisions: (a) Reach I—the Red River and tributaries from the New Mexico-Texas state boundary to Denison Dam; (b) Reach II—the Red River from Denison Dam to the point where it crosses the Arkansas-Louisiana state boundary and all tributaries which contribute to the flow of the River within this reach;

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(c) Reach III—the tributaries west of the Red River which cross the TexasLouisiana state boundary, the Arkansas-Louisiana state boundary, and those which cross both the Texas-Arkansas state boundary and the ArkansasLouisiana state boundary. (d) Reach IV—the tributaries east of the Red River in Arkansas which cross the Arkansas-Louisiana state boundary; and (e) Reach V—that portion of the Red River and tributaries in Louisiana not included in Reach III or in Reach IV. Sec. 2.13. If any part or application of this Compact shall be declared invalid by a court of competent jurisdiction, all other severable provisions and applications of this Compact shall remain in full force and effect. Sec. 2.14. Subject to the availability of water in accordance with this Compact, nothing in this Compact shall be held or construed to alter, impair, or increase, validate, or prejudice any existing water right or right of water use that is legally recognized on the effective date of this Compact by either statutes or courts of the Signatory State within which it is located. ARTICLE III DEFINITIONS Sec. 3.01 . In this Compact: (a) The States of Arkansas, Louisiana, Oklahoma, and Texas are referred to as “Arkansas,” “Louisiana,” “Oklahoma,” and “Texas,” respectively, or individually as “State” or “Signatory State,” or collectively as “States” or “Signatory States.” (b) The term “Red River” means the stream below the crossing of the TexasOklahoma state boundary at longitude 100 degrees west. (c) The term “Red River Basin” means all of the natural drainage area of the Red River and its tributaries east of the New Mexico-Texas state boundary and above its junction with Atchafalaya and Old Rivers. (d) The term “water of the Red River Basin” means the water originating in any part of the Red River Basin and flowing to or in the Red River or any of its tributaries. (e) The term “tributary” means any stream which contributes to the flow of the Red River. (f) The term “interstate tributary” means a tributary of the Red River, the drainage area of which includes portions of two or more Signatory States.

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(g) The term “intrastate tributary” means a tributary of the Red River, the drainage area of which is entirely within a single Signatory State. (h) The term “Commission” means the agency created by Article IX of this Compact for the administration thereof. (i) The term “pollution” means the alteration of the physical, chemical, or biological characteristics of water by the acts or instrumentalities of man which create or are likely to result in a material and adverse effect upon human beings, domestic or wild animals, fish and other aquatic life, or adversely affect any other lawful use of such water; provided, that for the purposes of this Compact, “pollution” shall not mean or include “natural deterioration.” (j) The term “natural deterioration” means the material reduction in the quality of water resulting from the leaching of solubles from the soils and rocks through or over which the water flows naturally. (k) The term “designated water” means water released from storage, paid for by non-Federal interests, for delivery to a specific point of use or diversion. (l) The term “undesignated water” means all water released from storage other than “designated water.” (m) The term “conservation storage capacity” means that portion of the active capacity of reservoirs available for the storage of water for subsequent beneficial use, and it excludes any portion of the capacity of reservoirs allocated solely to flood control and sediment control, or either of them. (n) The term “runoff ” means both the portion of precipitation which runs off the surface of a drainage area and that portion of the precipitation that enters the streams after passing through the portions of the earth. ARTICLE IV APPORTIONMENT OF WATER—REACH I OKLAHOMA—TEXAS Subdivision of Reach I and apportionment of water therein. Reach I of the Red River is divided into topographical subbasins, with the water therein allocated as follows: Sec. 4.01. Subbasin 1—Interstate streams—Texas. (a) This includes the Texas portion of Buck Creek, Sand (Lebos) Creek, Salt Fork Red River, Elm Creek, North Fork Red River, Sweetwater Creek, and Washita River, together with all their tributaries in Texas which lie west of the 100th Meridian.

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(b) The annual flow within this subbasin is hereby apportioned sixty (60) percent to Texas and forty (40) percent to Oklahoma. Sec. 4.02. Subbasin 2—Intrastate and Interstate streams—Oklahoma. (a) This subbasin is composed of all tributaries of the Red River in Oklahoma and portions thereof upstream to the Texas-Oklahoma state boundary at longitude 100 degrees west, beginning from Denison Dam and upstream to and including Buck Creek. (b) The State of Oklahoma shall have free and unrestricted use of the water of this subbasin. Sec. 4.03. Subbasin 3—Intrastate streams—Texas. (a) This includes the tributaries of the Red River in Texas, beginning from Denison Dam and upstream to and including Prairie Dog Town Fork Red River. (b) The State of Texas shall have free and unrestricted use of the water in this subbasin. Sec. 4.04. Subbasin 4—Mainstem of the Red River and Lake Texoma. (a) This subbasin includes all of Lake Texoma and the Red River beginning at Denison Dam and continuing upstream to the Texas-Oklahoma state boundary at longitude 100 degrees west. (b) The storage of Lake Texoma and flow from the mainstem of the Red River into Lake Texoma is apportioned as follows: (1) Oklahoma 200,000 acre-feet and Texas 200,000 acre-feet, which quantities shall include existing allocations and uses; and (2) Additional quantities in a ratio of fifty (50) percent to Oklahoma and fifty (50) percent to Texas. Sec. 4.05. Special Provisions. (a) Texas and Oklahoma may construct, jointly or in cooperation with the United States, storage or other facilities for the conservation and use of water; provided that any facilities constructed on the Red River boundary between the two states shall not be inconsistent with the Federal legislation authorizing Denison Dam and Reservoir project. (b) Texas shall not accept for filing, or grant a permit, for the construction of a dam to impound water solely for irrigation, flood control, soil conservation, mining and recovery of minerals, hydroelectric power, navigation, recreation and pleasure, or for any other purpose other than for domestic, municipal,

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and industrial water supply, on the mainstem of the North Fork Red River or any of its tributaries within Texas above Lugert-Altus Reservoir until the date that imported water, sufficient to meet the municipal and irrigation needs of Western Oklahoma is provided, or until January 1, 2000, which ever occurs first. ARTICLE V APPORTIONMENT OF WATER—REACH II ARKANSAS, OKLAHOMA, TEXAS AND LOUISIANA Subdivision of Reach II and allocation of water therein. Reach II of the Red River is divided into topographic subbasins, and the water therein is allocated as follows: Sec. 5.01. Subbasin 1—Intrastate streams—Oklahoma. (a) This subbasin includes those streams and their tributaries above existing, authorized or proposed last downstream major damsites, wholly in Oklahoma and flowing into Red River below Denison Dam and above the Oklahoma-Arkansas state boundary. These streams and their tributaries with existing, authorized or proposed last downstream major damsites are as follows: Location: Stream Island-Bayou Blue River Boggy River Kiamichi River

Site Albany Durant Boswell Hugo

Latitude 33051.5’N 33055.5’N 34001.6’N 34001.0’N

Longitude 96011.4’W 96004.2’W 95045.0’W 95022.6’W

Ac-ft 85,200 147,000 1,243,800 240,700

(b) Oklahoma is apportioned the water of this subbasin and shall have unrestricted use thereof. Sec. 5.02. Subbasin 2—Intrastate streams—Texas. (a) This subbasin includes those streams and their tributaries above existing authorized or proposed last downstream major damsites, wholly in Texas and flowing into Red River below Denison Dam and above the Texas-Arkansas state boundary. These streams and their tributaries with existing, authorized or proposed last downstream major damsites are as follows:

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Location: Stream Site Shawnee Creek Randall Lake Brushy Creek Valley Lake Bois d’Arc Creek New Bonham Reservoir Coffee Mill Creek Coffee Mill Lake Sandy Creek Lake Crockett Sanders Creek Pat Mayse Pine Creek Lake Crook Big Pine Creek Big Pine Lake Pecan Bayou Pecan Bayou Mud Creek Liberty Hill Mud Creek KVW Ranch Lakes (3)

Latitude 33048.1’N 33038.7’N 33042.9’N 33044.1’N 33044.5’N 33051.2’N 33043.7’N 33052.0’N 33041.1’N 33033.0’N 33034.8’N

Longitude 96034.8’W 96021.5’W 95058.2’W 95058.0’W 95055.5’W 95032.9’W 95034.0’W 95011.7’W 94058.7’W 94029.3’W 94027.3’W

Ac-ft 5,400 15,000 130,600 8,000 3,900 124,500 11,011 138,600 625,000 97,700 3,440

(b) Texas is apportioned the water of this subbasin and shall have unrestricted use thereof. Sec. 5.03. Subbasin 3—Interstate streams—Oklahoma and Arkansas. (a) This subbasin includes Little River and its tributaries above Millwood Dam. (b) The States of Oklahoma and Arkansas shall have free and unrestricted use of the water of this subbasin within their respective states, subject, however, to the limitation that Oklahoma shall allow a quantity of water equal to 40 percent of the total runoff originating below the following existing, authorized or proposed last downstream major damsites in Oklahoma to flow into Arkansas: Location: Stream Little River Glover Creek Mountain Fork River

Site Pine Creek Lukfata Broken Bow

Latitude 34006.8’N 34008.5’N 34008.9’N

Longitude 95004.9’W 94055.4’W 94041.2’W

Ac-ft 70,500 258,600 470,100

(c) Accounting will be on an annual basis unless otherwise deemed necessary by the States of Arkansas and Oklahoma. Sec. 5.04. Subbasin 4—Interstate streams—Texas and Arkansas. (a) This subbasin shall consist of those streams and their tributaries above existing, authorized or proposed last downstream major damsites, originating in

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Texas and crossing the Texas-Arkansas state boundary before flowing into the Red River in Arkansas. These streams and their tributaries with existing, authorized or proposed last downstream major damsites are as follows: Location: Stream Site Latitude McKinney Bayou Tributary Bringle Lake 33030.6’N Barkman Creek Barkman Reservoir 33029.7’N Sulphur River Texarkana 33018.3’N

Longitude Ac-ft 94006.2’W 3,052 94010.3’W 15,900 94009.6’W 386,900

(b) The State of Texas shall have the free and unrestricted use of the water of this subbasin. Sec. 5.05. Subbasin 5—Mainstem of the Red River and tributaries. (a) This subbasin includes that portion of the Red River, together with its tributaries, from Denison Dam down to the Arkansas-Louisiana state boundary, excluding all tributaries included in the other four subbasins of Reach II. (b) Water within this subbasin is allocated as follows: (1) The Signatory States shall have equal rights to the use of runoff originating in subbasin 5 and undesignated water flowing into subbasin 5, so long as the flow of the Red River at the Arkansas-Louisiana state boundary is 3,000 cubic feet per second or more, provided no state is entitled to more than 25 percent of the water in excess of 3,000 cubic feet per second. (2) Whenever the flow of the Red River at the Arkansas-Louisiana state boundary is less than 3,000 cubic feet per second, but more than 1,000 cubic feet per second, the States of Arkansas, Oklahoma, and Texas shall allow to flow into the Red River for delivery to the State of Louisiana a quantity of water equal to 40 percent of the total weekly runoff originating in subbasin 5 and 40 percent of undesignated water flowing into subbasin 5; provided, however, that this requirement shall not be interpreted to require any state to release stored water. (3) Whenever the flow of the Red River at the Arkansas-Louisiana state boundary falls below 1,000 cubic feet per second, the States of Arkansas, Oklahoma, and Texas shall allow a quantity of water equal to all the weekly runoff originating in subbasin 5 and all undesignated water flowing into subbasin 5 within their respective states to flow into the Red River as required to maintain a 1,000 cubic foot per second flow at the Arkansas-Louisiana state boundary.

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(c) Whenever the flow at Index, Arkansas, is less than 526 c.f.s., the states of Oklahoma and Texas shall each allow a quantity of water equal to 40 percent of the total weekly runoff originating in subbasin 5 within their respective states to flow into the Red River; provided however, this provision shall be invoked only at the request of Arkansas, only after Arkansas has ceased all diversions from the Red River itself in Arkansas above Index, and only if the provisions of Sub-sections 5.05(b)(2) and (3) have not caused a limitation of diversions in subbasin 5. (d) No state guarantees to maintain a minimum low flow to a downstream state. Sec. 5.06. Special Provisions. (a) Reservoirs within the limits of Reach II, subbasin 5, with a conservation storage capacity of 1,000 acre feet or less in existence or authorized on the date of the Compact pursuant to the rights and privileges granted by a Signatory State authorizing such reservoirs, shall be exempt from the provisions of Section 5.05; provided, if any right to store water in, or use water from, an existing exempt reservoir expires or is cancelled after the effective date of the Compact the exemption for such rights provided by this section shall be lost. (b) A Signatory State may authorize a change in the purpose or place of use of water from a reservoir exempted by subparagraph (a) of this section without losing that exemption, if the quantity of authorized use and storage is not increased. (c) Additionally, exemptions from the provisions of Section 5.05 shall not apply to direct diversions from Red River to off-channel reservoirs or lands. ARTICLE VI APPORTIONMENT OF WATER—REACH III ARKANSAS, LOUISIANA, AND TEXAS Subdivision of Reach III and allocation of water therein. Reach III of the Red River is divided into topographic subbasins, and the water therein allocated, as follows: Sec. 6.01. Subbasin 1—Interstate streams—Arkansas and Texas. (a) This subbasin includes the Texas portion of those streams crossing the Arkansas-Texas state boundary one or more times and flowing through Arkansas into Cypress Creek-Twelve Mile Bayou watershed in Louisiana. (b) Texas is apportioned sixty (60) percent of the runoff of this subbasin and shall have unrestricted use thereof; Arkansas is entitled to forty (40) percent of the runoff of this subbasin.

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Sec. 6.02. Subbasin 2—Interstate streams—Arkansas and Louisiana. (a) This subbasin includes the Arkansas portion of those streams flowing from Subbasin 1 into Arkansas, as well as other streams in Arkansas which cross the Arkansas-Louisiana state boundary one or more times and flow into Cypress Creek-Twelve Mile Bayou watershed in Louisiana. (b) Arkansas is apportioned sixty (60) percent of the runoff of this subbasin and shall have unrestricted use thereof; Louisiana is entitled to forty (40) percent of the runoff of this subbasin. Sec. 6.03. Subbasin 3—Interstate streams—Texas and Louisiana. (a) This subbasin includes the Texas portion of all tributaries crossing the TexasLouisiana state boundary one or more times and flowing into Caddo Lake, Cypress Creek-Twelve Mile Bayou or Cross Lake, as well as the Louisiana portion of such tributaries. (b) Texas and Louisiana within their respective boundaries shall each have the unrestricted use of the water of this subbasin subject to the following allocation: (1) Texas shall have the unrestricted right to all water above Marshall, Lake O’ the Pines, and Black Cypress damsites; however, Texas shall not cause runoff to be depleted to a quantity less than that which would have occurred with the full operation of Franklin County, Titus County, Ellison Creek, Johnson Creek, Lake O’ the Pines, Marshall, and Black Cypress Reservoirs constructed, and those other impoundments and diversions existing on the effective date of this Compact. Any depletions of runoff in excess of the depletions described above shall be charged against Texas’ apportionment of the water in Caddo Reservoir. (2) Texas and Louisiana shall each have the unrestricted right to use fifty (50) percent of the conservation storage capacity in the present Caddo Lake for the impoundment of water for state use, subject to the provision that supplies for existing uses of water from Caddo Lake, on date of Compact, are not reduced. (3) Texas and Louisiana shall each have the unrestricted right to fifty (50) percent of the conservation storage capacity of any future enlargement of Caddo Lake, provided, the two states may negotiate for the release of each state’s share of the storage space on terms mutually agreed upon by the two states after the effective date of this Compact.

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(4) Inflow to Caddo Lake from its drainage area downstream from Marshall, Lake O’ the Pines, and Black Cypress damsites and downstream from other last downstream dams in existence on the date of the signing of the Compact document by the Compact Commissioners, will be allowed to continue flowing into Caddo Lake except that any manmade depletions to this inflow by Texas will be subtracted from the Texas share of the water in Caddo Lake. (c) In regard to the water of interstate streams which do not contribute to the inflow to Cross Lake or Caddo Lake, Texas shall have the unrestricted right to divert and use this water on the basis of a division of runoff above the state boundary of sixty (60) percent to Texas and forty (40) percent to Louisiana. (d) Texas and Louisiana will not construct improvements on the Cross Lake watershed in either state that will affect the yield of Cross Lake; provided, however, this subsection shall be subject to the provisions of Section 2.08. Sec. 6.04. Subbasin 4—Intrastate streams—Louisiana. (a) This subbasin includes that area of Louisiana in Reach III not included within any other subbasin. (b) Louisiana shall have free and unrestricted use of the water of this subbasin. ARTICLE VII APPORTIONMENT OF WATER—REACH IV ARKANSAS AND LOUISIANA Subdivision of Reach IV and allocation of water therein. Reach IV of the Red River is divided into topographic subbasins, and the water therein allocated as follows: Sec. 7.01. Subbasin 1—Intrastate streams—Arkansas. (a) This subbasin includes those streams and their tributaries above last downstream major damsites originating in Arkansas and crossing the ArkansasLouisiana state boundary before flowing into the Red River in Louisiana. Those major last downstream damsites are as follows: Location: Stream Ouachita River Caddo River Little Missouri River Alum Fork, Saline River

Site Lake Catherine DeGray Lake Lake Greeson Lake Winona

Latitude 34o26.6’N 34o13.2’N 34o08.9’N 32o47.8’N

Longitude Ac-ft o 93 01.6’W 19,000 93o06.6’W 1,377,000 93o42.9’W 600,000 92o51.0’W 63,264

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(b) Arkansas is apportioned the waters of this subbasin and shall have unrestricted use thereof. Sec. 7.02. Subbasin 2—Interstate Streams—Arkansas and Louisiana. (a) This subbasin shall consist of Reach IV less subbasin 1 as defined in Section 7.01(a) above. (b) The State of Arkansas shall have free and unrestricted use of the water of this reach subject to the limitation that Arkansas shall allow a quantity of water equal to forty (40) percent of the weekly runoff originating below or flowing from the last downstream major damsite to flow into Louisiana. Where there are no designated last downstream damsites, Arkansas shall allow a quantity of water equal to forty (40) percent of the total weekly runoff originating above the state boundary to flow into Louisiana. Use of water in this subbasin is subject to low flow provisions of subparagraph 7.02(b). Sec. 7.03. Special Provisions. (a) Arkansas may use the beds and banks of segments of Reach IV for the purpose of conveying its share of water to designated downstream diversions. (b) The State of Arkansas does not guarantee to maintain a minimum low flow for Louisiana in Reach IV. However, on the following streams when the use of water in Arkansas reduces the flow at the Arkansas-Louisiana state boundary to the following amounts: (1) Ouachita—780 cfs (2) Bayou Bartholomew—80 cfs (3) Boeuf River—40 cfs (4) Bayou Macon—40 cfs The State of Arkansas pledges to take affirmative steps to regulate the diversions of runoff originating or flowing into Reach IV in such a manner as to permit an equitable apportionment of the runoff as set out herein to flow into the State of Louisiana. In its control and regulation of the water of Reach IV any adjudication or order rendered by the State of Arkansas or any of its instrumentalities or agencies affecting the terms of this Compact shall not be effective against the State of Louisiana nor any of its citizens or inhabitants until approved by the Commission.

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ARTICLE VIII APPORTIONMENT OF WATER—REACH V Sec. 8.01. Reach V of the Red River consists of the mainstem Red River and all of its tributaries lying wholly within the State of Louisiana. The State of Louisiana shall have free and unrestricted use of the water of this subbasin. ARTICLE IX ADMINISTRATION OF THE COMPACT Sec. 9.01. There is hereby created an interstate administrative agency to be known as the “Red River Compact Commission,” hereinafter called the “Commission.” The Commission shall be composed of two representatives from each Signatory State who shall be designated or appointed in accordance with the laws of each state, and one Commissioner representing the United States, who shall be appointed by the President. The Federal Commissioner shall be the Chairman of the Commission but shall not have the right to vote. The failure of the President to appoint a Federal Commissioner will not prevent the operation or effect of this Compact, and the eight representatives from the Signatory States will elect a Chairman for the Commission. Sec. 9.02. The Commission shall meet and organize within 60 days after the effective date of this Compact. Thereafter, meetings shall be held at such times and places as the Commission shall decide. Sec. 9.03. Each of the two Commissioners from each state shall have one vote; provided, however, that if only one representative from a state attends he is authorized to vote on behalf of the absent Commissioner from that state. Representatives from three states shall constitute a quorum. Any action concerned with administration of this Compact or any action requiring compliance with specific terms of this Compact shall require six concurring votes. If a proposed action of the Commission affects existing water rights in a state, and that action is not expressly provided for in this Compact, eight concurring votes shall be required. Sec. 9.04. (a) The salaries and personal expenses of each state’s representative shall be paid by the government that it represents, and the salaries and personal expenses of the Federal Commissioner will be paid for by the United States. (b) The Commission’s expenses for any additional stream flow gaging stations shall be equitably apportioned among the states involved in the reach in which the stream flow gaging stations are located. (c) All other expenses incurred by the Commission shall be borne equally by the Signatory States and shall be paid by the Commission out of the “Red River

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Compact Commission Fund.” Such Fund shall be initiated and maintained by equal payments of each state into the fund. Disbursement shall be made from the fund in such manner as may be authorized by the Commission. Such fund shall not be subject to audit and accounting procedures of the state; however, all receipts and disbursements of the fund by the Commission shall be audited by a qualified independent public accountant at regular intervals, and the report of such audits shall be included in and become a part of the annual report of the Commission. Each state shall have the right to make its own audit of the accounts of the Commission at any reasonable time. ARTICLE X POWERS AND DUTIES OF THE COMMISSION Sec. 10.01. The Commission shall have the power to: (a) Adopt rules and regulations governing its operation and enforcement of the terms of the Compact; (b) Establish and maintain an office for the conduct of its affairs and, if desirable, from time to time, change its location; (c) Employ or contract with such engineering, legal, clerical and other personnel as it may determine necessary for the exercise of its functions under this Compact without regard to the Civil Service Laws of any Signatory State; provided that such employees shall be paid by and be responsible to the Commission and shall not be considered employees of any Signatory State. (d) Acquire, use and dispose of such real and personal property as it may consider necessary; (e) Enter into contracts with appropriate State or Federal agencies for the collection, correlation and presentation of factual data, for the maintenance of records and for the preparation of reports; (f) Secure from the head of any department or agency of the Federal or State government such information as it may need or deem to be useful for carrying out its functions and as may be available to or procurable by the department or agency to which the request is addressed; provided such information is not privileged and the department or agency is not precluded by law from releasing same; (g) Make findings, recommendations or reports in connection with carrying out the purposes of this Compact, including, but not limited to, a finding that a Signatory State is or is not in violation of any of the provisions of this Compact. The Commission is authorized to make such investigations and

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Appendix B studies, and to hold such hearings as it may deem necessary for said purposes. It is authorized to make and file official certified copies of any of its findings, recommendations or reports with such officers or agencies of any Signatory State, or the United States, as may have any interest in or jurisdiction over the subject matter. The making of findings, recommendations, or reports by the Commission shall not be a condition precedent to the instituting or maintaining of any action or proceeding of any kind by a Signatory State in any court or tribunal, or before any agency or officer, for the protection of any right under this Compact or for the enforcement of any of its provisions; and

(h) Print or otherwise reproduce and distribute its proceedings and reports. Sec. 10.02. The Commission shall: (a) Cause to be established, maintained, and operated such stream, reservoir and other gaging stations as are necessary for the proper administration of the Compact; (b) Cause to be collected, analyzed and reported such information on stream flows, water quality, water storage and such other data as are necessary for the proper administration of the Compact; (c) Perform all other functions required of it by the Compact and do all things necessary, proper and convenient in the performance of its duties thereunder; (d) Prepare and submit to the governor of each of the Signatory States a budget covering the anticipated expenses of the Commission for the following fiscal biennium; (e) Prepare and submit an annual report to the governor of each Signatory State and to the President of the United States covering the activities of the Commission for the preceding fiscal year, together with an accounting of all funds received and expended by it in the conduct of its work; (f) Make available to the governor or to any official agency of a Signatory State or to any authorized representative of the United States, upon request, any information within its possession; (g) Not incur any obligation in excess of the unencumbered balance of its funds, nor pledge the credit of any of the Signatory States; and (h) Make available to a Signatory State or the United States in any action arising under this Compact, without subpoena, the testimony of any officer or employee of the Commission having knowledge of any relevant facts.

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ARTICLE XI POLLUTION Sec. 11.01. The Signatory States recognize that the increase in population and the growth of industrial, agricultural, mining and other activities combined with natural pollution sources may lead to a diminution of the quality of water in the Red River Basin which may render the water harmful or injurious to the health and welfare of the people and impair the usefulness or public enjoyment of the water for beneficial purposes, thereby resulting in adverse social, economic, and environmental impacts. Sec. 11.02. Although affirming the primary duty and responsibility of each Signatory State to take appropriate action under its own laws to prevent, diminish, and regulate all pollution sources within its boundaries which adversely affect the water of the Red River Basin, the states recognize that the control and abatement of the naturally-occurring salinity sources as well as, under certain circumstances, the maintenance and enhancement of the quality of water in the Red River Basin may require the cooperative action of all states. Sec. 11.03. The Signatory States agree to cooperate with agencies of the United States to devise and effectuate means of alleviating the natural deterioration of the water of the Red River Basin. Sec. 11.04. The Commission shall have the power to cooperate with the United States, the Signatory States and other entities in programs for abating and controlling pollution and natural deterioration of the water of the Red River Basin, and to recommend reasonable water quality objectives to the states. Sec. 11.05. Each Signatory State agrees to maintain current records of waste discharges into the Red River Basin and the type and quality of such discharges, which records shall be furnished to the Commission upon request. Sec. 11.06. Upon receipt of a complaint from the governor of a Signatory State that the interstate water of the Red River Basin in which it has an interest are being materially and adversely affected by pollution and that the state in which the pollution originates has failed after reasonable notice to take appropriate abatement measures, the Commission shall make such findings as are appropriate and thereafter provide such findings to the governor of the state in which such pollution originates and request appropriate corrective action. The Commission, however, shall not take any action with respect to pollution which adversely affects only the state in which such pollution originates. Sec. 11.07. In addition to its other powers set forth under this Article, the Commission shall have the authority, upon receipt of six concurring votes, to utilize applicable Federal statutes to institute legal action in its own name against the person or entity

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responsible for interstate pollution problems; provided, however, sixty (60) days before initiating legal action the Commission shall notify the Governor of the state in which the pollution source is located to allow that state an opportunity to initiate action in its own name. Sec. 11.08. Without prejudice to any other remedy available to the Commission, or any Signatory State, any state which is materially and adversely affected by the pollution of the water of the Red River Basin by pollution originating in another Signatory State may institute a suit against any individual, corporation, partnership, or association, or against any Signatory State or political or governmental subdivision thereof, or against any officer, agency, department, bureau, district or instrumentality of or in any Signatory State contributing to such pollution in accordance with applicable Federal statutes. Nothing herein shall be construed as depriving any persons of any rights of action relating to pollution which such person would have if this Compact had not been made. ARTICLE XII TERMINATION AND AMENDMENT OF COMPACT Sec. 12.01. This Compact may be terminated at any time by appropriate action of the legislatures of all of the four Signatory States. In the event of such termination, all rights established under it shall continue unimpaired. Sec. 12.02. This Compact may be amended at any time by appropriate action of the legislatures of all Signatory States that are affected by such amendment. The consent of the United States Congress must be obtained before any such amendment is effective. ARTICLE XIII RATIFICATION AND EFFECTIVE DATE OF COMPACT Sec. 13.01. Notice of ratification of this Compact by the legislature of each Signatory State shall be given by the governor thereof to the governors of each of the other Signatory States and to the President of the United States. The President is hereby requested to give notice to the governors of each of the Signatory States of the consent to this Compact by the Congress of the United States. Sec. 13.02. This Compact shall become effective, binding and obligatory when, and only when: (a) It has been duly ratified by each of the Signatory States; and (b) It has been consented to by an Act of the Congress of the United States, which Act provides that:

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Any other statute of the United States to the contrary notwithstanding, in any case or controversy: which involves the construction or application of this Compact; in which one or more of the Signatory States to this Compact is a plaintiff or plaintiffs; and which is within the judicial power of the United States as set forth in the Constitution of the United States; and without any requirement, limitation or regard as to the sum or value of the matter in controversy, or of the place of residence or citizenship of, or of the nature, character or legal status of, any of the other proper parties plaintiff or defendant in such case or controversy: The consent of Congress is given to name and join the United States as a party defendant or otherwise in any such case or controversy in the Supreme Court of the United States if the United States is an indispensable party thereto. Sec. 13.03. The United States District Courts shall have original jurisdiction (concurrent with that of the Supreme Court of the United States, and concurrent with that of any other Federal or state court, in matters in which the Supreme Court, or other court has original jurisdiction) of any case or controversy involving the application or construction of this Compact; that said jurisdiction shall include, but not be limited to, suits between Signatory States; and that the venue of such case or controversy may be brought in any judicial district in which the acts complained of (or any portion thereof) occur. SIGNED AND APPROVED on the 12th day of May 1978 at Denison Dam.

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Appendix B-27: Red River of the North Compact

Public Law No. 75–456 52 Statutes at Large 150 (1938) This compact, made and entered into by and between the State of South Dakota, the State of North Dakota and the State of Minnesota, Witnesseth: Whereas, the Red River of the North, which has its source in the State of South Dakota, and which flows northward, forming the boundary line between the State of Minnesota and the State of North Dakota, has a drainage area which includes a portion of all three states; and, Whereas, the surface waters in said drainage area, if properly conserved and regulated, will produce benefits common to all three of said states; and, Whereas, the interests of the people of said three states will be best served by the organization of an interstate authority vested with sufficient power; and, Whereas, all three states have mutual interests in the regulation and administration of said surface waters in said drainage area; and, Whereas, it is highly desirable that there be a single agency of all three of said states empowered to further the aforesaid regulation and administration of said surface waters in the interests of all of said states, Now, Therefore, the State of South Dakota, the State of North Dakota and the State of Minnesota, do hereby solemnly covenant and agree, each with the other, as follows: ARTICLE I. The following terms, whenever used in this agreement, shall have the following meanings, un1ess a different meaning clearly appears in the context: (a) The term “commission” shall mean the Tri-State Waters Commission, the corporation created by this agreement and the acts authorizing the same. (b) The term “acquire” shall mean and include construct, acquire by purchase, lease, devise, gift or the exercise of the rights of eminent domain, or any other mode of acquisition whatsoever. (c) The term “federal agency” shall mean and include the United States of America, the President of the United States of America, the Public Works Administration, the Works Progress Administra­tion, and any and every other authority, agency, or instrumentality of the United States of America heretofore or hereafter created or established.

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(d) The term “real property” shall mean and include lands, struc­tures, franchises, and interests in land, including waters and riparian rights, and any and all things and rights usually included within the said term, and includes not only fees simple absolute but also any and all lesser interests, such as easements, rights of way, uses, leases, licenses, and all other incorporeal hereditaments, and every estate, interest or right, legal or equitable, including terms of years and liens thereon by way of judgments, mortgages or otherwise, and also claims for damages to real estate. (e) The term “drainage area” shall mean the area from which surface waters drain from the States of South Dakota, Minnesota and North Dakota into the Red River of the North. ARTICLE II. Each of the States of North Dakota, South Dakota and Minne­sota undertake to cooperate with the other two states for the most advantageous utilization of the waters of the Red River of the North, for the control of the flood waters of this river and for the prevention of the pollution of such waters. ARTICLE III. To that end the said three states do hereby create a district to be known as the TriState Waters Area, which shall comprise that por­tion of the drainage basin of the Red River of the North lying within the boundaries of the said states. ARTICLE IV. The said three states do hereby create the Tri-State Waters Com­mission, which shall be a body corporate and shall have the powers, duties and jurisdiction herein set forth and such other powers, duties and jurisdiction as shall hereafter be conferred upon it by acts of the legislatures of each of said three states concurred in, when of a character to require such concurrence, by act of Congress. ARTICLE V. The Tri-State Waters Commission, hereafter in this compact called the Commission, shall consist of nine Commissioners, three from each state, appointed by each state in such manner and for such length of time as may be determined by the legislature thereof. Each Commissioner shall be a citizen of the state from which he is appointed, and at least one Commissioner from each state shall be a resident of the drainage area of the Red River of the North. Each Commissioner may be removed or suspended from office in such manner as shall be provided by the law of the state from which he shall be appointed. Each Commissioner shall receive such compensation as may be provided by the legislature of the state he represents,

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which compensation shall be paid by such state. Each Commissioner shall be paid actual expenses necessarily incurred in the performance of his duties as such Commissioner. ARTICLE VI. The Commission shall elect from its number a chairman and vice-chairman and shall appoint and at its pleasure remove an executive secretary and such other officers and assistants as may be required to carry the provisions of this compact into effect, and shall fix and deter­mine their duties, qualifications and compensation. It shall adopt a seal and suitable by-laws and shall promulgate rules and regulations for its management and control. A majority of the members from each state shall constitute a quorum for the transaction of business, the exercise of any powers, or the performance of any duties, but no action of the Commission shall be binding unless at least two of the members from each state shall vote in favor thereof. The Commission shall keep accurate accounts of all receipts and disbursements and shall make an annual report to the Governor of each state setting forth in detail the operations and transactions con­ducted by it pursuant to this compact, and shall make recommenda­tions for any legislative action deemed by it advisable, including amendments to the statutes of the said states which may be necessary to carry out the intent and purpose of this compact, and such changes in the area of the district as may seem desirable. The Commission shall not incur any obligations for salaries, office, or other administrative expenses prior to the making of appropriation adequate to meet the same; nor shall the Commission pledge the credit of any of the said states except by and with the authority of the legislatures thereof. Each state reserves the right to provide here­after by law for the examination and audit of the accounts of the Commission by its comptroller or other official. The Commission shall meet and organize within thirty days after the effective date of this compact. ARTICLE VII. It shall be the duty of the Commission to study the various water problems relating to water supply with[in] the Tri-State Waters Area. ARTICLE VIII. Plans for works on boundary waters in said drainage area pre­pared by the state, municipal or industrial agencies shall receive the approval of the Commission before construction is begun. It shall be the duty of the Commission to maintain and control lake levels and

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stream flow on boundary waters within the area, but such action shall be taken only with the approval of the authorized county or state agencies, in which such lake or stream is located, but said Commission shall have no power or jurisdiction over water levels or stream flow in the Otter Tail River which is known as that portion of the Red River originating in Becker and Otter Tail counties extending and flowing through in a southerly and southwesterly direc­tion through the counties of Becker, Otter Tail and Wilkin, and emptying into the Red River of the North at the junction of the Boise de Sioux at Breckenridge, Minnesota and its chain of lakes and its tributaries. The Commission shall have power to cooperate with any duly authorized federal, state or municipal agency in studies and surveys, construction, maintenance and operation of water projects within the scope of its jurisdiction. The Commission shall be authorized to exercise the power of emi­nent domain, to acquire such real and personal property as may be reasonably necessary to effectuate the purposes of this compact, and to exercise all other powers not inconsistent with the constitutions of the States of North Dakota, South Dakota and Minnesota, or with the Constitution of the United States, which may be reasonably necessary or appropriate for or incidental to the effectuation of its authorized purposes, and generally to exercise in connection with the property and affairs and in connection with property within its control any and all powers which may be exercised by a private corporation in con­nection with similar property and affairs. ARTICLE IX. The Commission shall study the methods of financing the construc­tion, control, maintenance and operation of projects and shall recom­mend for enactment to the legislatures of the states concerned such legislation as will effectuate the purposes and ends of the Commission. ARTICLE X. Each state shall bear its proportionate share of the expense of the Commission based on the pro rata value to such state of the activities of the Commission, which expense shall be provided for by appropria­tion by the legislature. ARTICLE XI. Should any part of this compact be held to be contrary to the constitution of any of said states or of the United States such part of said compact shall become inoperative as to each state but all other severable provisions of this compact shall continue in full force and effect.

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ARTICLE XII. This compact shall become operative immediately after it has been signed by the Governor of the State of South Dakota, the Governor of the State of North Dakota and the Governor of the State of Minnesota. In testimony whereof the Governor of the State of South Dakota, the Governor of the State of North Dakota and the Governor of the State of Minnesota have signed this compact in triplicate and the seals of said states have been thereunto affixed. Done this 23rd day of June, in the year of our Lord One Thousand Nine Hundred Thirty-seven.

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Appendix B-28: Republican River Compact

Public Law No. 78–60 57 Statutes at Large 86 (1943) The states of Colorado, Kansas, and Nebraska, parties signatory to this compact (hereinafter referred to as Colorado, Kansas, and Nebraska, respectively, or individually as a state, or collectively as the states), having resolved to conclude a compact with respect to the waters of the Republican River Basin, and being duly authorized therefor by the Act of the Congress of the United States of America, approved August 4, 1942 (Public No. 696, 77th Congress, chapter 545, 2nd Session) and pursuant to acts of their respective legislatures have, through their respective governors, appointed as their commissioners: M. C. Hinderlider, for Colorado George S. Knapp, for Kansas Wardner G. Scott, for Nebraska who, after negotiations participated in by Glenn L. Parker, appointed by the President as the representative of the United States of America, have agreed upon the following articles: ARTICLE I The major purposes of this compact are to provide for the most efficient use of the waters of the Republican River Basin (hereinafter referred to as the “Basin”) for multiple purposes; to provide for an equitable division of such waters; to remove all causes, present and future, which might lead to controversies; to promote interstate comity; to recognize that the most efficient utilization of the waters within the Basin is for beneficial consumptive use; and to promote joint action by the states and the United States in the efficient use of water and the control of destructive floods. The physical and other conditions peculiar to the Basin constitute the basis for this compact, and none of the states hereby, nor the Congress of the United States by its consent, concedes that this compact establishes any general principle or precedent with respect to any other interstate stream. ARTICLE II The Basin is all the area in Colorado, Kansas, and Nebraska, which is naturally drained by the Republican River, and its tributaries, to its junction with the Smoky Hill River in Kansas. The main stem of the Republican River extends from the junction near Haigler, Nebraska, of its North Fork and the Arikaree River, to its junction with Smoky Hill River near Junction City, Kansas. Frenchman Creek (River) in Nebraska is a continuation of Frenchman Creek (River) in Colorado. Red Willow Creek in Colorado is not identical with the stream having the same

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name in Nebraska. A map of the Basin approved by the commissioners is attached and made a part hereof. The term “Acre-foot,” as herein used, is the quantity of water required to cover an acre to the depth of one foot and is equivalent to forty-three thousand, five hundred sixty (43,560) cubic feet. The term “Virgin Water Supply,” as herein used, is defined to be the water supply within the Basin undepleted by the activities of man. The term “Beneficial Consumptive Use” is herein defined to be that use by which the water supply of the Basin is consumed through the activities of man, and shall include water consumed by evaporation from any reservoir, canal, ditch, or irrigated area. Beneficial consumptive use is the basis and principle upon which the allocations of water hereinafter made are predicated. ARTICLE III The specific allocations in acre-feet hereinafter made to each state are derived from the computed average annual virgin water supply originating in the following designated drainage basins, or parts thereof, in the amounts shown: North Fork of the Republican River drainage basin in Colorado, 44,700 acre-feet; Arikaree River drainage basin, 19,610 acre-feet; Buffalo Creek drainage basin, 7,890 acre-feet; Rock Creek drainage basin, 11,000 acre-feet; South Fork of the Republican River drainage basin, 57,200 acre-feet; Frenchman Creek (River) drainage basin in Nebraska, 98,500 acre-feet; Blackwood Creek drainage basin, 6,800 acre-feet; Driftwood Creek drainage basin, 7,300 acre-feet; Red Willow Creek drainage basin in Nebraska, 21,900 acre-feet; Medicine Creek drainage basin, 50,800 acre-feet; Beaver Creek drainage basin, 16,500 acre-feet; Sappa Creek drainage basin, 21,400 acre-feet; Prairie Dog Creek drainage basin, 27,600 acre-feet; The North Fork of the Republican River in Nebraska and the main stem of the Republican River between the junction of the North Fork and Arikaree River and the lowest crossing of the river at the Nebraska-Kansas state line and the small tributaries thereof, 87,700 acre-feet. Should the future computed virgin water supply of any source vary more than ten (10) per cent from the virgin water supply as hereinabove set forth, the allocations hereinafter made from such source shall be increased or decreased in the relative

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proportions that the future computed virgin water supply of such source bears to the computed virgin water supply used herein. ARTICLE IV There is hereby allocated for beneficial consumptive use in Colorado, annually, a total of fifty-four thousand, one hundred (54,100) acre-feet of water. This total is to be derived from the sources and in the amounts hereinafter specified and is subject to such quantities being physically available from those sources: North Fork of the Republican River drainage basin, 10,000 acre-feet; Arikaree River drainage basin, 15,400 acre-feet; South Fork of the Republican River drainage basin, 25,400 acre-feet; Beaver Creek drainage basin, 3,300 acre-feet; and In addition, for beneficial consumptive use in Colorado annually, the entire water supply of the Frenchman Creek (River) drainage basin in Colorado and the Red Willow Creek drainage basin in Colorado. There is hereby allocated for beneficial consumptive use in Kansas, annually, a total of one hundred ninety thousand, three hundred (190,300) acre-feet of water. This total is to be derived from the sources and in the amounts hereinafter specified and is subject to such quantities being physically available from those sources: Arikaree River drainage basin, 1,000 acre-feet; South Fork of the Republican River drainage basin, 23,000 acre-feet; Driftwood Creek drainage basin, 500 acre-feet; Beaver Creek drainage basin, 6,400 acre-feet; Sappa Creek drainage basin, 8,800 acre-feet; Prairie Dog Creek drainage basin, 12,600 acre-feet; From the main stem of the Republican River upstream from the lowest crossing of the river at the Nebraska-Kansas state line and from water supplies of upstream basins otherwise unallocated herein, 138,000 acre-feet; provided, that Kansas shall have the right to divert all or any portion thereof at or near Guide Rock, Nebraska; and In addition there is hereby allocated for beneficial consumptive use in Kansas, annually, the entire water supply originating in the Basin downstream from the lowest crossing of the river at the Nebraska-Kansas state line. There is hereby allocated for beneficial consumptive use in Nebraska, annually, a total of two hundred thirty-four thousand, five hundred (234,500) acre-feet of water. This total is to be derived from the sources and in the amounts hereinafter specified and is subject to such quantities being physically available from those sources:

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Appendix B North Fork of the Republican River drainage basin in Colorado, 11,000 acre-feet; Frenchman Creek (River) drainage basin in Nebraska, 52,800 acre-feet; Rock Creek drainage basin, 4,400 acre-feet; Arikaree River drainage basin, 3,300 acre-feet; Buffalo Creek drainage basin, 2,600 acre-feet; South Fork of the Republican River drainage basin, 800 acre-feet; Driftwood Creek drainage basin, 1,200 acre-feet; Red Willow Creek drainage basin in Nebraska, 4,200 acre-feet; Medicine Creek drainage basin, 4,600 acre-feet; Beaver Creek drainage basin, 6,700 acre-feet; Sappa Creek drainage basin, 8,800 acre-feet; Prairie Dog Creek drainage basin, 2,100 acre-feet; From the North Fork of the Republican River in Nebraska, the main stem of the Republican River between the junction of the North Fork and Arikaree River and the lowest crossing of the river at the Nebraska-Kansas state line, from the small tributaries thereof, and from water supplies of upstream basins otherwise unallocated herein, 132,000 acre-feet.

The use of the waters hereinabove allocated shall be subject to the laws of the state, for use in which the allocations are made. ARTICLE V The judgment and all provisions thereof in the case of Adelbert A. Weiland, as state engineer of Colorado, et al. v. The Pioneer Irrigation Company, decided June 5, 1922, and reported in 259 U.S. 498, affecting the Pioneer irrigation ditch or canal, are hereby recognized as binding upon the states; and Colorado, through its duly authorized officials, shall have the perpetual and exclusive right to control and regulate diversions of water at all times by said canal in conformity with said judgment. The water heretofore adjudicated to said Pioneer Canal by the district court of Colorado, in the amount of fifty (50) cubic feet per second of time is included in and is a part of the total amounts of water hereinbefore allocated for beneficial consumptive use in Colorado and Nebraska. ARTICLE VI The right of any person, entity, or lower state to construct, or participate in the future construction and use of any storage reservoir or diversion works in an upper state for the purpose of regulating water herein allocated for beneficial consumptive use in such lower state, shall never be denied by an upper state; provided, that such right is subject to the rights of the upper state.

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ARTICLE VII Any person, entity, or lower state shall have the right to acquire necessary property rights in an upper state by purchase, or through the exercise of the power of eminent domain, for the construction, operation and maintenance of storage reservoirs, and of appurtenant works, canals and conduits, required for the enjoyment of the privileges granted by Article VI; provided, however, that the grantees of such rights shall pay to the political subdivisions of the state in which such works are located, each and every year during which such rights are enjoyed for such purposes, a sum of money equivalent to the average annual amount of taxes assessed against the lands and improvements during the ten years preceding the use of such lands, in reimbursement for the loss of taxes to said political subdivisions of the state. ARTICLE VIII Should any facility be constructed in an upper state under the provisions of Article VI, such construction and the operation of such facility shall be subject to the laws of such upper state. Any repairs to or replacements of such facility shall also be made in accordance with the laws of such upper state. ARTICLE IX It shall be the duty of the three states to administer this compact through the official in each state who is now or may hereafter be charged with the duty of administering the public water supplies, and to collect and correlate through such officials the data necessary for the proper administration of the provisions of this compact. Such officials may, by unanimous action, adopt rules and regulations consistent with the provisions of this compact. The United States geological survey, or whatever federal agency may succeed to the functions and duties of that agency, in so far as this compact is concerned, shall collaborate with the officials of the states charged with the administration of this compact in the execution of the duty of such officials in the collection, correlation, and publication of water facts necessary for the proper administration of this compact. ARTICLE X Nothing in this compact shall be deemed: (a) To impair or affect any rights, powers or jurisdiction of the United States, or those acting by or under its authority, in, over, and to the waters of the Basin; nor to impair or affect the capacity of the United States, or those acting by or under its authority, to acquire rights in and to the use of waters of the Basin;

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(b) To subject any property of the United States, its agencies or instrumentalities, to taxation by any state, or subdivision thereof, nor to create an obligation on the part of the United States, its agencies or instrumentalities, by reason of the acquisition, construction, or operation of any property or works of whatsoever kind, to make any payments to any state or political subdivision thereof, state agency, municipality, or entity whatsoever in reimbursement for the loss of taxes; (c) To subject any property of the United States, its agencies or instrumentalities, to the laws of any state to any extent other than the extent these laws would apply without regard to this compact. ARTICLE XI This compact shall become operative when ratified by the legislature of each of the states, and when consented to by the Congress of the United States by legislation providing, among other things, that: (a) Any beneficial consumptive uses by the United States, or those acting by or under its authority, within a state, of the waters allocated by this compact, shall be made within the allocations hereinabove made for use in that state and shall be taken into account in determining the extent of use within that state. (b) The United States, or those acting by or under its authority, in the exercise of rights or powers arising from whatever jurisdiction the United States has in, over and to the waters of the Basin shall recognize, to the extent consistent with the best utilization of the waters for multiple purposes, that beneficial consumptive use of the waters within the Basin is of paramount importance to the development of the Basin; and no exercise of such power or right thereby that would interfere with the full beneficial consumptive use of the waters within the Basin shall be made except upon a determination, giving due consideration to the objectives of this compact and after consultation with all interested federal agencies and the state officials charged with the administration of this compact, that such exercise is in the interest of the best utilization of such waters for multiple purposes. (c) The United States, or those acting by or under its authority, will recognize any established use, for domestic and irrigation purposes, of the waters allocated by this compact which may be impaired by the exercise of federal jurisdiction in, over, and to such waters; provided, that such use is being exercised beneficially, is valid under the laws of the appropriate state and in conformity with this compact at the time of the impairment thereof, and was validly initiated under state law prior to the

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initiation or authorization of the federal program or project which causes such impairment. IN WITNESS WHEREOF, the commissioners have signed this compact in quadruplicate original, one of which shall be deposited in the archives of the department of state of the United States of America and shall be deemed the authoritative original, and of which a duly certified copy shall be forwarded to the governor of each of the states. Done in the city of Lincoln, in the state of Nebraska, on the 31st day of December, in the year of our Lord, one thousand nine hundred forty-two.

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Appendix B-29: Rio Grande Compact

Public Law No. 76–96 53 Statutes at Large 785 (1939) The State of Colorado, the State of New Mexico, and the State of Texas, desiring to remove all causes of present and future controversy among these States and between citizens of one of these States and citizens of another State with respect to the use of the waters of the Rio Grande above Fort Quitman, Texas, and being moved by considerations of interstate comity, and for the purpose of effecting an equitable apportionment of such waters, have resolved to conclude a Compact for the attainment of these purposes, and to that end, through their respective Governors, have named as their respective Commissioners: For the State of Colorado—M.C. Hinderlider For the State of New Mexico—Thomas M. McClure For the State of Texas—Frank B. Clayton who, after negotiations participated in by S.O. Harper, appointed by the President as the representative of the United States of America, have agreed upon the following Articles, to wit: ARTICLE I (a) The State of Colorado, the State of New Mexico, the State of Texas, and the United States of America, are hereinafter designated “Colorado,” “New Mexico,” “Texas,” and the “United States,” respectively. (b) “The Commission” means the agency created by this Compact for the administration thereof. (c) The term “Rio Grande Basin” means all of the territory drained by the Rio Grande and its tributaries in Colorado, in New Mexico, and in Texas above Fort Quitman, including the Closed Basin in Colorado. (d) The “Closed Basin” means that part of the Rio Grande Basin in Colorado where the streams drain into the San Luis Lakes and adjacent territory, and do not normally contribute to the flow of the Rio Grande. (e) The term “tributary” means any stream which naturally contributes to the flow of the Rio Grande. (f) “Transmountain Diversion” is water imported into the drainage basin of the Rio Grande from any stream system outside of the Rio Grande Basin, exclusive of the Closed Basin. (g) “Annual Debits” are the amounts by which actual deliveries in any calendar year fall below scheduled deliveries.

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(h) “Annual Credits” are the amounts by which actual deliveries in any calendar year exceed scheduled deliveries. (i) “Accrued Debits” are the amounts by which the sum of all annual debits exceeds the sum of all annual credits over any common period of time. (j) “Accrued Credits” are the amounts by which the sum of all annual credits exceeds the sum of all annual debits over any common period of time. (k) “Project Storage” is the combined capacity of Elephant Butte Reservoir and all other reservoirs actually available for the storage of usable water below Elephant Butte and above the first diversion to lands of the Rio Grande Project, but not more than a total of two million, six hundred and thirty-eight thousand, eight hundred and sixty (2,638,860) acre-feet. (l) “Usable Water” is all water, exclusive of credit water, which is in project storage and which is available for release in accordance with irrigation demands, including deliveries to Mexico. (m) “Credit Water” is that amount of water in project storage which is equal to the accrued credit of Colorado or New Mexico or both. (n) “Unfilled Capacity” is the difference between the total physical capacity of project storage and the amount of usable water then in storage. (o) “Actual Release” is the amount of usable water released in any calendar year from the lowest reservoir comprising project storage. (p) “Actual Spill” is all water which is actually spilled from Elephant Butte Reservoir, or is released therefrom for flood control, in excess of the current demand on project storage and which does not become usable water by storage in another reservoir; provided, that actual spill of usable water cannot occur until all credit water shall have been spilled. (q) “Hypothetical Spill” is the time in any year at which usable water would have spilled from project storage if seven hundred and ninety thousand (790,000) acre-feet had been released therefrom at rates proportional to the actual release in every year from the starting date to the end of the year in which hypothetical spill occurs; in computing hypothetical spill the initial condition shall be the amount of usable water in project storage at the beginning of the calendar year following the effective date of this Compact, and thereafter the initial condition shall be the amount of usable water in project storage at the beginning of the calendar year following each actual spill.

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ARTICLE II The Commission shall cause to be maintained and operated a stream gaging station equipped with an automatic water stage recorder at each of the following points, to wit: (a) On the Rio Grande near Del Norte above the principal points of diversion to the San Luis Valley; (b) On the Conejos River near Mogote; (c) On the Los Pinos River near Ortiz; (d) On the San Antonio River at Ortiz; (e) On the Conejos River at its mouths near Los Sauces; (f) On the Rio Grande near Lobatos; (g) On the Rio Chama below El Vado Reservoir; (h) On the Rio Grande at Otowi Bridge near San Ildefonso; (i) On the Rio Grande near San Acacia; (j) On the Rio Grande at San Marcial; (k) On the Rio Grande below Elephant Butte Reservoir; (l) On the Rio Grande below Caballo Reservoir. Similar gaging stations shall be maintained and operated below any other reservoir constructed after 1929, and at such other points as may be necessary for the securing of records required for the carrying out of the Compact; and automatic water stage recorders shall be maintained and operated on each of the reservoirs mentioned, and on all others constructed after 1929. Such gaging stations shall be equipped, maintained, and operated by the Commission directly or in cooperation with an appropriate Federal or State agency, and the equipment, method and frequency of measurement at such stations shall be such as to produce reliable records at all times.

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ARTICLE III The obligation of Colorado to deliver water in the Rio Grande at the Colorado-New Mexico State Line, measured at or near Lobatos, in each calendar year, shall be ten thousand (10,000) acre-feet less than the sum of those quantities set forth in the two (2) following tabulations of relationship, which correspond to the quantities at the upper index stations: Discharge of Conejos River (Quantities in thousands of acre-feet)

Conejos Index Supply (1) 100 150 200 250 300 350 400 450 500 550 600 650 700

Conejos River at Mouths (2) 0 20 45 75 109 147 188 232 278 326 376 426 476

Intermediate quantities shall be computed by proportional parts. (1) Conejos Index Supply is the natural flow of Conejos River at the U.S.G.S. gag ing station near Mogote during the calendar year, plus the natural flow of Los Pinos River at the U.S.G.S. gaging station near Ortiz and the natural flow of San Antonio River at the U.S.G.S. gaging station at Ortiz, both during the months of April to October, inclusive.

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(2) Conejos River at mouths is the combined discharge of branches of this River at the U.S.G.S. gaging stations near Los Sauces during the calendar year. Discharge of Rio Grande exclusive of Conejos River (Quantities in thousands of acre-feet) Rio Grande at Lobatos less Rio Grande at Del Norte (3) 200 250 300 350 400 450 500 550 600 650 700 750 800 850 900 950 1,000 1,100 1,200 1,300 1,400

Conejos at Mouths (4) 60 65 75 86 98 112 127 144 162 182 204 229 257 292 335 380 430 540 640 740 840

Intermediate quantities shall be computed by proportional parts. (3) Rio Grande at Del Norte is the recorded flow of the Rio Grande at the U.S.G.S. gaging station near Del Norte during the calendar year (measured above all principal points of diversion to San Luis Valley) corrected for the operation of reservoirs constructed after 1937. (4) Rio Grande at Lobatos less Conejos at mouths is the total flow of the Rio Grande at the U.S.G.S. gaging station near Lobatos, less the discharge of Conejos River at its mouths, during the calendar year. The application of these schedules shall be subject to the provisions hereinafter set forth and appropriate adjustments shall be made for (a) any change in location of gaging station; (b) any new or increased depletion of the runoff above inflow index gaging stations; and (c) any transmountain diversions into the drainage basin of the Rio Grande above Lobatos.

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In any event any works are constructed after 1937 for the purpose of delivering water into the Rio Grande from the Closed Basin, Colorado shall not be credited with the amount of such water delivered, unless the proportion of sodium ions shall be less than forty-five (45) percent of the total positive ions in that water when the total dissolved solids in such water exceeds three hundred and fifty (350) parts per million. ARTICLE IV The obligation of New Mexico to deliver water in the Rio Grande at San Marcial, during each calendar year, exclusive of the months of July, August, and September, shall be that quantity set forth in the following tabulation of relationship, which corresponds to the quantity at the upper index station: Discharge of Rio Grande at Otowi Bridge and at San Marcial exclusive of July, August, and September (Quantities in thousands of acre-feet) Otowi Index Supply (5) 100 200 300 400 500 600 700 800 900 1000 1100 1200 1300 1400 1500 1600 1700 1800 1900 2000 2100 2200 2300

San Marcial Index Supply (6) 0 65 141 219 300 383 469 557 648 742 839 939 1042 1148 1257 1370 1489 1608 1730 1856 1985 2117 2253

Intermediate quantities shall be computed by proportional parts.

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(5) The Otowi Index Supply is the recorded flow of the Rio Grande at the U.S.G.S. gaging station at Otowi Bridge near San Ildefonso (formerly station near Buckman) during the calendar year, exclusive of the flow during the months of July, August, and September, corrected for the operation of reservoirs constructed after 1929 in the drainage basin of the Rio Grande between Lobatos and Otowi Bridge. (6) San Marcial Index Supply is the recorded flow of the Rio Grande at the gaging station at San Marcial during the calendar year exclusive of the flow during the months of July, August, and September. The application of this schedule shall be subject to the provisions hereinafter set forth and appropriate adjustments shall be made for (a) any change in location of gaging stations; (b) depletion after 1929 in New Mexico at any time of the year of the natural runoff at Otowi Bridge; (c) depletion of the runoff during July, August, and September of tributaries between Otowi Bridge and San Marcial, by works constructed after 1937; and (d) any transmountain diversions into the Rio Grande between Lobatos and San Marcial. Concurrent records shall be kept of the flow of the Rio Grande at San Marcial, near San Acacia, and of the release from Elephant Butte Reservoir, to the end that the records at these three (3) stations may be correlated. ARTICLE V If at any time it should be the unanimous finding and determination of the Commission that because of changed physical conditions, or for any other reason, reliable records are not obtainable, or cannot be obtained, at any of the stream gaging stations herein referred to, such stations may, with the unanimous approval of the Commission, be abandoned, and with such approval another station, or other stations, shall be established and new measurements shall be substituted which, in the unanimous opinion of the Commission, will result in substantially the same results, so far as the rights and obligations to deliver water are concerned, as would have existed if such substitution of stations and measurements had not been so made. ARTICLE VI Commencing with the year following the effective date of this Compact, all credits and debits of Colorado and New Mexico shall be computed for each calendar year; provided, that in a year of actual spill no annual credits nor annual debits shall be computed for that year. In the case of Colorado, no annual debit nor accrued debit shall exceed one hundred thousand (100,000) acre-feet, except as either or both may be caused by holdover storage water in reservoirs constructed after 1937 in the drainage basin of

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the Rio Grande above Lobatos. Within the physical limitations of storage capacity in such reservoirs, Colorado shall retain water in storage at all times to the extent of its accrued debit. In the case of New Mexico, the accrued debit shall not exceed two hundred thousand (200,000) acre-feet at any time, except as such debit may be caused by holdover storage of water in reservoirs constructed after 1929 in the drainage basin of the Rio Grande between Lobatos and San Marcial. Within the physical limitations of storage capacity in such reservoirs, New Mexico shall retain water in storage at all times to the extent of its accrued debit. In computing the magnitude of accrued credits or debits, New Mexico shall not be charged with any greater debit in any one year than the sum of one hundred and fifty thousand (150,000) acre-feet and all gains in the quantity of water in storage in such year. The Commission by unanimous action may authorize the release from storage of any amount of water which is then being held in storage by reason of accrued debits of Colorado or New Mexico; provided, that such water shall be replaced at the first opportunity thereafter. In computing the amount of accrued credits and accrued debits of Colorado or New Mexico, any annual credits in excess of one hundred and fifty thousand (150,000) acre-feet shall be taken as equal to that amount. In any year in which actual spill occurs, the accrued credits of Colorado or New Mexico, or both, at the beginning of the year shall be reduced in proportion to their respective credits by the amount of such actual spill; provided, that the amount of actual spill shall be deemed to be increased by the aggregate gain in the amount of water in storage, prior to the time of spill, in reservoirs above San Marcial constructed after 1929; provided, further, that if the Commissioners for the States having accrued credits authorize the release of part, or all, of such credits in advance of spill, the amount so released shall be deemed to constitute actual spill. In any year in which there is actual spill of usable water, or at the time of hypothetical spill thereof, all accrued debits of Colorado or New Mexico, or both, at the beginning of the year shall be cancelled. In any year in which the aggregate of accrued debits of Colorado and New Mexico exceeds the minimum unfilled capacity of project storage, such debits shall be reduced proportionally to an aggregate amount equal to such minimum unfilled capacity. To the extent that accrued credits are impounded in reservoirs between San Marcial and Courchesne, and to the extent that accrued debits are impounded in reservoirs above San Marcial, such credits and debits shall be reduced annually to compensate for evaporation losses in the proportion that such credits or debits bore to the total amount of water in such reservoirs during the year.

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ARTICLE VII Neither Colorado nor New Mexico shall increase the amount of water in storage in reservoirs constructed after 1929 whenever there is less than four hundred thousand (400,000) acre-feet of usable water in project storage; provided, that if the actual releases of usable water from the beginning of the calendar year following the effective date of this Compact, or from the beginning of the calendar year following actual spill, have aggregated more than an average of seven hundred and ninety thousand (790,000) acre-feet per annum, the time at which such minimum stage is reached shall be adjusted to compensate for the difference between the total actual release and releases at such average rate; provided, further, that Colorado or New Mexico, or both, may relinquish accrued credits at any time, and Texas may accept such relinquished water, and in such event the State or States so relinquishing shall be entitled to store water in the amount of the water so relinquished. ARTICLE VIII During the month of January of any year the Commissioner for Texas may demand of Colorado and New Mexico, and the Commissioner for New Mexico may demand of Colorado, the release of water from storage reservoirs constructed after 1929 to the amount of the accrued debits of Colorado and New Mexico, respectively, and such releases shall be made by each at the greatest rate practicable under the conditions then prevailing, and in proportion to the total debit of each, and in amounts, limited by their accrued debits, sufficient to bring the quantity of usable water in project storage to six hundred thousand (600,000) acre-feet by March 1st and to maintain this quantity in storage until April 30th, to the end that a normal release of seven hundred and ninety thousand (790,000) acre-feet may be made from project storage in that year. ARTICLE IX Colorado agrees with New Mexico that in event the United States or the State of New Mexico decides to construct the necessary works for diverting the waters of the San Juan River, or any of its tributaries, into the Rio Grande, Colorado hereby consents to the construction of said works and the diversion of waters from the San Juan River, or the tributaries thereof, into the Rio Grande in New Mexico, provided the present and prospective uses of water in Colorado by other diversions from the San Juan River, or its tributaries, are protected. ARTICLE X In the event water from another drainage basin shall be imported into the Rio Grand Basin by the United States or Colorado or New Mexico, or any of them jointly, the State having the right to the use of such water shall be given proper credit therefor in the application of the schedules.

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ARTICLE XI New Mexico and Texas agree that upon the effective date of this Compact all controversies between said States relative to the quantity or quality of the water of the Rio Grande are composed and settled; however, nothing herein shall be interpreted to prevent recourse by a signatory State to the Supreme Court of the United States for redress should the character or quality of the water, at the point of delivery, be changed hereafter by one signatory State to the injury of another. Nothing herein shall be construed as an admission by any signatory State that the use of water for irrigation causes increase of salinity for which the user is responsible in law. ARTICLE XII To administer the provisions of this Compact there shall be constituted a Commission composed of one representative from each State, to be known as the Rio Grande Compact Commission. The State Engineer of Colorado shall be ex-officio the Rio Grande Compact Commissioner for Colorado. The State Engineer of New Mexico shall be ex-officio the Rio Grande Compact Commissioner for New Mexico. The Rio Grande Compact Commissioner for Texas shall be appointed by the Governor of Texas. The President of the United States shall be requested to designate a representative of the United States to sit with such Commission, and such Representative of the United States, if so designated by the President, shall act as Chairman of the Commission without vote. The salaries and personal expenses of the Rio Grande Compact Commissioners for the three (3) States shall be paid by their respective States, and all other expenses incident to the administration of this Compact, not borne by the United States, shall be borne equally by the three (3) States. In addition to the powers and duties hereinbefore specifically conferred upon such Commission and the Members thereof, the jurisdiction of such Commission shall extend only to the collection, correlation, and presentation of factual data and the maintenance of records having a bearing upon the administration of this Compact, and, by unanimous action, to the making of recommendations to the respective States upon matters connected with the administration of this Compact. In connection therewith, the Commission may employ such engineering and clerical aid as may be reasonably necessary within the limit of funds provided for that purpose by the respective States. Annual reports compiled for each calendar year shall be made by the Commission and transmitted to the Governors of the signatory States on or before March 1st following the year covered by the report. The Commission may, by unanimous action, adopt rules and regulations consistent with the provisions of this Compact to govern their proceedings. The findings of the Commission shall not be conclusive in any Court or tribunal which may be called upon to interpret or enforce this Compact.

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ARTICLE XIII At the expiration of every five-year period after the effective date of this Compact, the Commission may, by unanious consent, review any provisions hereof which are not substantive in character and which do not affect the basic principles upon which the Compact is founded, and shall meet for the consideration of such questions on the request of any member of the Commission; provided, however, that the provisions hereof shall remain in full force and effect until changed and amended within the intent of the Compact by unanimous action of the Commissioners, and until any changes in this Compact are ratified by the Legislatures of the respective States and consented to by the Congress, in the same manner as this Compact is required to be ratified to become effective. ARTICLE XIV The schedules herein contained and the quantities of water herein allocated shall never be increased nor diminished by reason of any increase or diminution in the delivery or loss of water to Mexico. ARTICLE XV The physical and other conditions characteristic of the Rio Grande and peculiar to the territory drained and served thereby, and to the development thereof, have actuated this Compact and none of the signatory States admits that any provisions herein contained establishes any general principle or precedent applicable to other interstate streams. ARTICLE XVI Nothing in this Compact shall be construed as affecting the obligations of the United States of America to Mexico under existing treaties, or to the Indian Tribes, or as impairing the Rights of the Indian Tribes. ARTICLE XVII This Compact shall become effective when ratified by the Legislatures of each of the signatory States and consented to by the Congress of the United States. Notice of ratification shall be given by the Governor of each State to the Governors of the other States and to the President of the United States, and the President of the United States is requested to give notice to the Governors of each of the signatory States of the consent of the Congress of the United States.

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IN WITNESS WHEREOF, The Commissioners have signed this Compact in quadruplicate original, one of which shall be deposited in the archives of the Department of State of the United States of America and shall be deemed the authoritative original, and of which a duly certified copy shall be forwarded to the Governor of each of the signatory States. Done at the City of Sante Fe, in the State of New Mexico, on the 18th day of March, in the year of our Lord, One Thousand Nine Hundred and Thirty-eight.

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Appendix B

Appendix B-30: Sabine River Compact

Public Law No. 83–578 68 Statutes at Large 690 (1954) as amended Public Law No. 87–418 76 Statutes at Large 34 (1962) The State of Texas and the State of Louisiana, parties signatory to this Compact (hereinafter referred to as “Texas” and “Louisiana,” respectively, or individually as a “State,” or collectively as the “States”), having resolved to conclude a compact with respect to the waters of the Sabine River, and having appointed representatives as follows: For Texas: Henry L. Woodworth, Interstate Compact Commissioner for Texas; and John W. Simmons, President of the Sabine River Authority of Texas; For Louisiana: Roy T. Sessums, Director of the Department of Public Works of the State of Louisiana; and consent to negotiate and enter into the said Compact having been granted by Act of the Congress of the United States approved November 1, 1951 (Public Law No. 252; 82nd Congress, First Session), and pursuant thereto the President having designated Louis W. Prentiss as the representative of the United States, the said representatives for Texas and Louisiana, after negotiations participated in by the representative of the United States, have for such Compact agreed upon Articles as hereinafter set forth. The major purposes of this Compact are to provide for an equitable apportionment between the States of Louisiana and Texas of the waters of the Sabine River and its tributaries, thereby removing the causes of present and future controversy between the States over the conservation and utilization of said waters; to encourage the development, conservation and utilization of the water resources of the Sabine River and its tributaries; and to establish a basis for cooperative planning and action by the States for the construction, operation and maintenance of projects for water conservation and utilization purposes on that reach of the Sabine River touching both States, and for apportionment of the benefits therefrom. ARTICLE I As used in this Compact: (a) The word “Stateline” means the point on the Sabine River where its waters in downstream flow first touch the States of both Louisiana and Texas. (b) The term “waters of the Sabine River” means the waters either originating in the natural drainage basin of the Sabine River, or appearing as streamflow in

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said River and its tributaries, from its headwater source down to the mouth of the River where it enters into Sabine Lake. (c) The term “Stateline flow” means the flow of waters of the Sabine River as determined by the Logansport gauge located on the U.S. Highway 84, approximately four (4) river miles downstream from the Stateline. This flow, or the flow as determined by such substitute gauging station as may be established by the Administration, as hereinafter defined, pursuant to the provisions of Article VII of this Compact, shall be deemed the actual Stateline flow. (d) The term “Stateline reach” means that portion of the Sabine River lying between the Stateline and Sabine Lake. (e) The term “the Administration” means the Sabine River Compact Administration established under Article VII. (f) The term “Domestic use” means the use of water by an individual, or by a family unit or household for drinking, cooking, laundering, sanitation and other personal comforts and necessities; and for the irrigation of an area not to exceed one acre, obtained directly from the Sabine River or its tributaries by an individual or family unit, not supplied by a water company, water district or municipality. (g) The term “stock water use” means the use of water for any and all livestock and poultry. (h) The term “consumptive use” means use of water resulting in its permanent removal from the stream. (i) The terms “domestic” and “stock water” reservoir mean any reservoir for either or both of such uses having a storage capacity of fifty (50) acre feet or less. (j) “Stored water” means water stored in reservoirs (exclusive of domestic or stock water reservoirs) or water withdrawn or released from reservoirs for specific uses and the identifiable return flow from such uses. (k) The term “free water” means all waters other than “stored waters” in the Stateline reach including, but not limited to, that appearing as natural stream flow and not withdrawn or released from a reservoir for specific uses. Waters released from reservoirs for the purpose of maintaining stream flows as provided in Article V, shall be “free water.” All reservoir spills or releases of stored waters made in anticipation of spills, shall be free water. (l) Where the name of the State or the term “State” is used in this Compact, it shall be construed to include any person or entity of any nature whatsoever of

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Appendix B the States of Louisiana or Texas using, claiming, or in any manner asserting any right to the use of the waters of the Sabine River under the authority of that State.

(m) Wherever any State or Federal official or agency is referred to in this Compact, such reference shall apply equally to the comparable official or agency succeeding to their duties and functions. ARTICLE II Subject to the provisions of Article X, nothing in this Compact shall be construed as applying to, or interfering with, the right or power of either signatory State to regulate within its boundaries the appropriation, use and control of water, not inconsistent with its obligation under this Compact. ARTICLE III Subject to the provisions of Article X, all rights to any of the waters of the Sabine River which have been obtained in accordance with the laws of the States are hereby recognized and affirmed; provided, however, that withdrawals, from time to time, for the satisfaction of such rights, shall be subject to the availability of supply in accordance with the apportionment of water provided under the terms of this Compact. ARTICLE IV Texas shall have free and unrestricted use of all waters of the Sabine River and its tributaries above the Stateline subject, however, to the provisions of Articles V and X. ARTICLE V Texas and Louisiana hereby agree upon the following apportionment of the waters of the Sabine River: (a) All free water in the Stateline reach shall be divided equally between the two States, this division to be made without reference to the origin. (b) The necessity of maintaining a minimum flow at the Stateline for the benefit of water users below the Stateline in both States is recognized, and to this end it is hereby agreed that: (1) Reservoirs and permits above the Stateline existing as of January 1, 1953, shall not be liable for maintenance of the flow at the Stateline. (2) After January 1, 1953, neither State shall permit or authorize any additional uses which would have the effect of reducing the flow at the Stateline to less than 36 cubic feet per second.

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` (3) Reservoirs on which construction is commenced after January 1, 1953, above the Stateline shall be liable for their share of water necessary to provide a minimum flow at the Stateline of 36 cubic feet per second; provided, that no reservoir shall be liable for a greater percentage of this minimum flow than the percentage of the drainage area above the Stateline contributing to that reservoir, exclusive of the watershed of any reservoir on which construction was started prior to January 1, 1953. Water released from Texas’ reservoirs to establish the minimum flow of 36 cubic feet per second, shall be classed as free water at the Stateline and divided equally between the two States. (c) The right of each State to construct impoundment reservoirs and other works of improvement on the Sabine River or its tributaries located wholly within its boundaries is hereby recognized. (d) In the event that either State constructs reservoir storage on the tributaries below Stateline after January 1, 1953, there shall be deducted from that State’s share of the flow in the Sabine River all reductions in flow resulting from the operation of the tributary storage and conversely such State shall be entitled to the increased flow resulting from the regulation provided by such storage. (e) Each State shall have the right to use the main channel of the Sabine River t0 convey water stored on the Sabine River or its tributaries located wholly within its boundaries, downstream to a desired point of removal without loss of ownership of such stored waters. In the event that such water is released by a State through the natural channel of a tributary and the channel of the Sabine River to a downstream point of removal, a reduction shall be made in the amount of water which can be withdrawn at the point of removal equal to the transmission losses. (f) Each State shall have the right to withdraw its share of the water from the channel of the Sabine River in the Stateline reach in accordance with Article VII. Neither State shall withdraw at any point more than its share of the flow at that point except, that pursuant to findings and determination of the Administration as provided under Article VII of this Compact, either State may withdraw more or less of its share of the water at any point providing that its aggregate withdrawal shall not exceed its total share. Withdrawals made pursuant to this paragraph shall not prejudice or impair the existing rights of users of Sabine River waters. (g) Waters stored in reservoirs constructed by the States in the Stateline reach shall be shared by each State in proportion to its contribution to the cost of

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Appendix B storage. Neither State shall have the right to construct a dam on the Stateline reach without the consent of the other State.

(h) Each State may vary the rate and manner of withdrawal of its share of such jointly stored waters on the Stateline reach, subject to meeting the obligations for amortization of the cost of the joint storage. In any event, neither State shall withdraw more than its pro rata share in any one year (a year meaning a water year, October 1st to September 30th) except by authority of the Administration. All jointly stored water remaining at the end of a water year shall be reapportioned between the States in the same proportion as their contribution to the cost of the storage. (i) Except for jointly stored water, as provided in (h) above, each State must use its apportionment of the natural stream flows as they occur and there shall be no allowance of accumulation of credits or debits for or against either State. The failure of either State to use the stream flow or any part thereof, the use of which is apportioned to it under the terms of this Compact, shall not constitute a relinquishment of the right to such use in the future; conversely, the failure of either State to use the water at the time it is available does not give it the right to the flow in excess of its share of the flow at any other time. (j) From the apportionment of waters of the Sabine River as defined in this Article, there shall be excluded from such apportionment all waters consumed in either State for domestic and stock water uses. Domestic and stock water reservoirs shall be so excluded. (k) Each State may use its share of the water apportioned to it in any manner that may be deemed beneficial by that State. ARTICLE VI (a) The States through their respective appropriate agencies or subdivisions may construct jointly, or cooperate with any agency or instrumentality of the United States in the construction of works on the Stateline reach for the development, conservation and utilization for all beneficial purposes of the waters of the Sabine River. (b) All monetary revenues growing out of any joint State ownership, title and interest in works constructed under Section (a) above, and accruing to the States in respect thereof, shall be divided between the States in proportion to their respective contributions to the cost of construction; provided however, that each State shall retain undivided all its revenues from recreational facilities within its boundaries incidental to the use of the waters of the Sabine

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River, and from its severally State-owned recreational facilities constructed appurtenant thereto. (c) All operation and maintenance costs chargeable against any State ownership, title and interest in works constructed under Section (a) above, shall be assessed in proportion to the contribution of each State to the original cost of construction. ARTICLE VII (a) There is hereby created an interstate administrative agency to be designated as the “Sabine River Compact Administration” herein referred to as “the Administration.” (b) The Administration shall consist of two members from each State and of one member as representative of the United States, chosen by the President of the United States, who is hereby requested to appoint such a representative. The United States member shall be ex-officio chairman of the Administration without vote and shall not be a domiciliary of or reside in either State. The appointed members for Texas and Louisiana shall be designated within thirty days after the effective date of this Compact. (c) The Texas members shall be appointed by the Governor for a term of six years; provided, however, that one of the original Texas members shall be appointed for a term to establish a half-term interval between the expiration dates of the terms of such members, and thereafter one such member shall be appointed each three (3) years for the regular term. The Louisiana members shall be residents of the Sabine Watershed and shall be appointed by the Governor for a term of four years, which shall run concurrent with the term of the Governor. Each state member shall hold office subject to the laws of his state or until his successor has been duly appointed and qualified. (d) Interim vacancy, for whatever cause, in the office of any member of the Administration shall be filled for the unexpired term in the same manner as hereinabove provided for regular appointment. (e) Within sixty days after the effective date of this Compact, the Administration shall meet and organize. A quorum for any meeting shall consist of three voting members of the Administration. Each State member shall have one vote, and every decision, authorization, determination, order or other action shall require the concurring votes of at least three members. (f) The Administration shall have power to: (1) Adopt, amend and revoke by-laws, rules and regulations, and prescribe

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Appendix B procedures for administration of and consistent with the provisions of this Compact;

(2) Fix and determine from time to time the location of the Administration’s principal office; (3) Employ such engineering, legal, clerical and other personnel, without regard to the civil service laws of either State, as the Administration may determine necessary or proper to supplement State-furnished assistance as hereinafter provided, for the performance of its functions under this Compact; provided, that such employees shall be paid by and be responsible to the Administration and shall not be considered to be employees of either State; (4) Procure such equipment, supplies and technical assistance as the Administration may determine to be necessary or proper to supplement State-furnished assistance as hereinafter provided, for the performance of its functions under this Compact; (5) Adopt a seal which shall be judicially recognized. (g) In cooperation with the chief official administering water rights in each State and with appropriate Federal agencies, the Administration shall have and perform powers and duties as follows: (1) To collect, analyze, correlate, compile and report on data as to water supplies, stream flows, storage, diversions, salvage and use of the waters of the Sabine River and its tributaries, and as to all factual data necessary or proper for the administration of this Compact; (2) To designate as official stations for the administration of this Compact such existing water gauging stations (and to operate, maintain, repair and abandon the same), and to locate, establish, construct, operate, maintain, repair and abandon additional such stations, as the Administration may from time to time find and determine necessary or appropriate; (3) To make findings as to the deliveries of water at Stateline as hereinabove provided, from the stream-flow records of the Stateline gauge which shall be operated and maintained by the Administration or in cooperation with the appropriate Federal agency, for determination of the actual Stateline flow unless the Administration shall find and determine that, because of changed physical conditions or for any other reason, reliable records are not obtainable thereat; in which case such existing Stateline station may with the approval of the Administration be abandoned and, with such approval, a substitute Stateline station established in lieu thereof;

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(4) To make findings as to the quantities of reservoir storage (including joint storage) and releases therefrom, diversions, transmission losses and as to incident stream-flow changes, and as to the share of such quantities chargeable against or allocable to the respective States; (5) To record and approve all points of diversion at which water is to be removed from the Sabine River or its tributaries below the Stateline; provided that, in any case, the State agency charged with the administration of the water laws for the State in which such point of diversion is located shall first have approved such point for removal or diversion; provided further, that any such point of removal or diversion once jointly approved by the appropriate State agency and the Administration, shall not thereafter be changed without the joint amendatory approval of such State agency and the Administration; (6) To require water users at their expense to install and maintain measuring devices of approved type in any ditch, pumping station or other water diversion works on the Sabine River or its tributaries below the Stateline, as the Administration may determine necessary or proper for the purposes of this Compact; provided that the chief official of each State charged with the administration of water rights therein shall supervise the execution and enforcement of the Administration’s requirements for such measuring devices; (7) To investigate any violation of this Compact and to report findings and recommendations thereon to the chief official of the affected State charged with the administration of water rights, or to the Governor of such State as the Administration may deem proper; (8) To acquire, hold, occupy and utilize such personal and real property as may be necessary or proper for the performance of its duties and functions under this Compact; (9) To perform all functions required of the Administration by this Compact, and to do all things necessary, proper or convenient in the performance of its duties hereunder. (h) Each State shall provide such available facilities, supplies, equipment, technical information and other assistance as the Administration may require to carry out its duties and function, and the execution and enforcement of the Administration’s orders shall be the responsibility of the agents and officials of the respective States charged with the administration of water rights therein. State officials shall furnish pertinent factual and technical data to the Administration upon its request.

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(i) Findings of fact made by the Administration shall not be conclusive in any court or before any agency or tribunal but shall constitute prima facie evidence of such facts. (j) In the case of a tie vote on any of the Administration’s determinations, orders or other actions subject to arbitration, then arbitration shall be a condition precedent to any right of legal action. Either side of a tie vote may, upon request, submit the question to arbitration. If there shall be arbitration, there shall be three arbitrators: one named in writing by each side, and the third chosen by the two arbitrators so elected. If the arbitrators fail to select a third within ten days, then he shall be chosen by the Representative of the United States. (k) The salaries, if any, and the personal expenses of each member of the Administration, shall be paid by the Government which he represents. All other expenses incident to the administration of this Compact and which are not paid by the United States shall be borne equally by the States. Ninety days prior to the Regular Session of the Legislature of either State, the Administration shall adopt and transmit to the Governor of such State for his approval, its budget covering anticipated expenses for the forthcoming biennium and the amount thereof payable by such State. Upon approval by its Governor, each State shall appropriate and pay the amount due by it to the Administration. The Administration shall keep accurate accounts of all receipts and disbursements and shall include a statement thereof, together with a certificate of audit by a certified public accountant, in its annual report. Each State shall have the right to make an examination and audit of the accounts of the Administration at any time. (l) The Administration shall, whenever requested, provide access to its records by the Governor of either State or by the chief official of either State charged therein with the administration of water rights. The Administration shall annually on or before January 15th of each year make and transmit to the Governors of the signatory States, and to the President of the United States, a report of the Administration’s activities and deliberations for the preceding year. ARTICLE VIII (a) This Compact shall become effective when ratified by the Legislature and approved by the Governors of both States and when approved by the Congress of the United States.

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(b) The provisions of this Compact shall remain in full force and effect until modified, altered or amended, or in the same manner as hereinabove required for ratification thereof. The right so to modify, alter or amend this Compact is expressly reserved. This Compact may be terminated at any time by mutual consent of the signatory States. In the event this Compact is terminated as herein provided, all rights then vested hereunder shall continue unimpaired. (c) Should a court of competent jurisdiction hold any part of this Compact to be contrary to the constitution of any signatory State or of the United States of America, all other severable provisions of this Compact shall continue in full force and effect. ARTICLE IX This Compact is made and entered into for the sole purpose of effecting an equitable apportionment and providing beneficial uses of the waters of the Sabine River, its tributaries and its watershed, without regard to the boundary between Louisiana and Texas, and nothing herein contained shall be construed as an admission on the part of either State or any agency, commission, department or subdivision thereof, respecting the location of said boundary; and neither this Compact nor any data compiled for the preparation or administration thereof shall be offered, admitted or considered in evidence, in any dispute, controversy, or litigation bearing upon the matter of the location of said boundary. The term “Stateline” as defined in this Compact shall not be construed to define the actual boundary between the State of Texas and the State of Louisiana. ARTICLE X Nothing in this Compact shall be construed as affecting, in any manner, any present or future rights or powers of the United States, its agencies, or instrumentalities in, to and over the waters of the Sabine River Basin. IN WITNESS WHEREOF, the Representatives have executed this Compact in three counterparts hereof, each of which shall be and constitute an original, one of which shall be forwarded to the Administrator, General Services Administration of the United States of America and one of which shall be forwarded to the Governor of each State. DONE in the City of Logansport, in the State of Louisiana, this 26th day of January, 1953.

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Appendix B

Appendix B-31: Snake River Compact

Public Law No. 81–464 64 Statutes at Large 29 (1950) The states of Idaho and Wyoming, parties signatory to this compact, have resolved to conclude a compact as authorized by the act of June 3, 1948, and after negotiations participated in by the following named state commissioners: For Idaho:

For Wyoming:

Mark R. Kulp, Boise N. V. Sharp, Filer Charles H. Welteroth, Jerome Roy Marquess, Paul Ival V. Goslin, Aberdeen R. Willis Walker, Rexburg Alex O. Coleman, St. Anthony Leonard E. Graham, Rigby Charles E. Anderson, Idaho Falls A. K. Van Orden, Blackfoot

L. C. Bishop, Cheyenne E. B. Hitchcock, Rock Springs J. G. Imeson, Jackson David P. Miller, Rock Springs Carl Robinson, Afton Ciril D. Cranney, Afton Clifford P. Hansen, Jackson Clifford S. Wilson, Driggs, Idaho Lloyd Van Deburg, Jackson

and by R. J. Newell, representative of the United States of America, have agreed upon the following articles, to-wit: ARTICLE I (a) The major purposes of this compact are to provide for the most efficient use of waters of the Snake River for multiple purposes; to provide for equitable division of such waters; to remove causes of present and future controversies; to promote interstate comity; to recognize that the most efficient utilization of such waters is required for the development of the drainage area of the Snake River and its tributaries in Wyoming and Idaho; and to promote joint action by the states and the United States in the development and use of such waters and the control of floods. (b) Either state using, claiming or in any manner asserting any right to the use of the waters of the Snake River under the authority of either state shall be subject to the terms of this compact. ARTICLE II (a) As used in this compact: (i) The term “Snake River” as distinguished from terms such as “Snake River and its tributaries” shall mean the Snake River from its headwaters

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to the Wyoming-Idaho boundary and all tributaries flowing into it within the boundaries of Wyoming, and the Salt River and all its tributaries; (ii) The terms “Idaho” and “Wyoming” shall mean, respectively, the state of Idaho and the state of Wyoming, and, except as otherwise expressly provided, either of those terms or the term “state” or “states” used in relation to any right or obligation created or recognized by this compact shall include any person or entity of any nature whatsoever, including the United States; (iii) The term “domestic use” shall mean the use of water by an individual, or by a family unit or household for drinking, cooking, laundering, sanitation and other personal comforts and necessities; and for the irrigation of a family garden or orchard not exceeding one-half acre in area; (iv) The term “stock water use” shall mean the use of water for livestock and poultry; (v) The term “established Wyoming rights” shall mean Snake River water rights that have been validly established of record in Wyoming prior to July 1, 1949, for use in Wyoming. ARTICLE III (a) The waters of the Snake River, exclusive of established Wyoming rights and other uses coming within the provisions of (c) of this article III, are hereby allocated to each state for storage or direct diversion as follows: To Idaho: ninety-six percent (96%) To Wyoming: four percent (4%) subject to the following stipulations and conditions as to the four percent (4%) allocated to Wyoming: (i) One-half may be used in Wyoming by direct diversion or by storage and subsequent diversion without provision being made for replacement storage space; (ii) The other one-half may be diverted for direct use or stored for later diversion and use on the condition that there shall have been provided for reimbursement of Idaho users replacement storage space to the extent of one-third of the maximum annual diversion in acre-feet but not in excess, however, of one-third of half the total hereby allocated to Wyoming. Until this total replacement storage space has been made available, provision for meeting its proportionate part of this total shall

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(b) The amount of water subject to allocation as provided in (a) of this article III shall be determined on an annual water-year basis measured from October 1 of any year through September 30 of the succeeding year. The quantity of water to which the percentage factors in (a) of this article III shall be applied through a given date in any water year shall be, in acre-feet, equal to the algebraic sum of: (i) The quantity of water, in acre-feet, that has passed the Wyoming state line in the Snake River to the given date, determined on the basis of gaging stations to be established at such points as are agreed on under the provisions of (b) of article VI; (ii) The change during that water year to the given date in quantity of water, in acre-feet, in any existing or future reservoirs in Wyoming which water is for use in Idaho; (iii) The quantity of water, in acre-feet, stored in that water year and in storage on the given date for later diversion and use in Wyoming, under rights having a priority later than June 30, 1949; (iv) One-third of the quantity of water, in acre-feet, excluding any storage water held over from prior years, diverted, under rights having a priority later than June 30, 1949, in that water year to the given date: (A) from the Snake River for use that year on lands in Wyoming; and (B) from tributaries of the Salt River for use that year on lands in Idaho. (c) (i) There are hereby excluded from the allocations made by this compact: (A) Existing and future domestic and stock water uses of water; provided, that the capacity of any reservoir for stock water shall not exceed twenty (20) acre-feet; (B) Established Wyoming rights; and (C) All water rights for use in Idaho on any tributary of the Salt River heading in Idaho which were validly established under the laws of Idaho prior to July 1, 1949; (ii) and all such uses and rights are hereby recognized.

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ARTICLE IV No water of the Snake River shall be diverted in Wyoming for use outside the drainage area of the Snake River except with the approval of Idaho; and no water of any tributary of the Salt River heading in Idaho shall be diverted in Idaho for use outside the drainage area of said tributary except with the approval of Wyoming. ARTICLE V Subject to the provisions of this compact, waters of the Snake River may be impounded and used for the generation of electrical power, but such impounding and use shall be subservient to the use of such waters for domestic, stock and irrigation purposes, and shall not interfere with or prevent their use for such preferred purposes. Water impounded or diverted in Wyoming exclusively for the generation of electrical power shall not be charged to the allocation set forth in article III of this compact. ARTICLE VI (a) It shall be the duty of the two (2) states to administer this compact through the official in each state who is now or may hereafter be charged with the administration of the public water supplies, and to collect and correlate through such officials the data necessary for the proper administration of the provisions of this compact. Such officials may, by unanimous action, adopt rules and regulations consistent with the provisions of this compact. (b) The states shall in conjunction with other responsible agencies cause to be established, maintained and operated such suitable water gaging stations as they find necessary to administer this compact. The United States geological survey, or whatever federal agency may succeed to the functions and duties of that agency, so far as this compact is concerned, shall collaborate with officials of the states charged with the administration of this compact in the execution of the duty of such officials in the collection, correlation and publication of information necessary for its proper administration. (c) In the case of failure of the administrative officials of the two (2) states to agree on any matter necessary to the administration of this compact, the director of the United States geological survey, or whatever official succeeds to his duties, shall be asked to appoint a federal representative to participate as to the matters in disagreement, and points of disagreement shall be decided by majority vote.

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ARTICLE VII (a) Either state shall have the right to file applications for and receive permits to construct or participate in the construction and use of any dam, storage reservoir or diversion works in the other state for the purpose of conserving and regulating its allocated water and to perfect rights thereto. Either state exercising this right shall comply with the laws of the other state except as to any general requirement for legislative approval that may be applicable to the granting of rights by one (1) state for the diversion or storage of water for use outside of that state. (b) Each claim or right hereafter initiated for storage or diversion of water in one state for use in the other state shall be filed in the office of the proper official of the state in which the water is to be stored or diverted, and a duplicate copy of the application, including a map showing the character and location of the proposed facilities and the lands to be irrigated, shall be filed in the office of the proper official of the state in which the water is to be used. If a portion or all the lands proposed to be reclaimed are located in a state other than the one in which the water is to be stored or diverted, then, before approval, said application shall be checked against the records of the office of the state in which the water is to be used, and a notation shall be placed thereon by the officer in charge of such records as to whether or not he approves the application. All endorsements shall be placed on both the original and duplicate copies of all such applications and maps filed to the end that the records in both states may be complete and identical. ARTICLE VIII (a) Neither state shall deny the right of the United States, and, subject to the conditions hereinafter contained, neither state shall deny the right of the other state to acquire rights to the use of water, or to construct or participate in the construction and use of diversion works and storage reservoirs with appurtenant works, canals and conduits in one (1) state for the purpose of diverting, conveying, storing or regulating water in one (1) state for use in the other state, when such use is within the allocation to such state made by this compact. (b) Either state shall have the right to acquire such property rights as are necessary to the use of water in conformity with this compact in the other state by donation, purchase or through the exercise of the power of eminent domain. Either state, upon the written request of the governor of the other state, for the benefit of whose water users’ property is to be acquired in the state to which such written request is made, shall proceed expeditiously to acquire the desired property either by purchase at a price satisfactory to the requesting

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state, or, if such purchase cannot be made, then through the exercise of its power of eminent domain and shall convey such property to the requesting state or such entity as may be designated by the requesting state; provided, that all costs of acquisition and expenses of every kind and nature whatsoever incurred in obtaining the requested property shall be paid by the requesting state at the time and in the manner prescribed by the state requested to acquire the property. (c) Should any facility be constructed in either state by and for the benefit of the other state, as above provided, the construction, repair, replacement, maintenance and operation of such facility shall be subject to the laws of the state in which the facility is located, except that, in the case of a reservoir constructed in either state for the benefit of the other state, the proper officials of the state in which the facility is located shall permit the storage and release of any water to which the other state is entitled under this compact. (d) Either state having property rights in the other state acquired as provided in (b) of this article VIII shall pay to the political subdivisions of the state in which such property rights are located, each and every year during which such rights are held, a sum of money equivalent to the average annual amount of taxes assessed against those rights during the ten (10) years preceding the acquisition of such rights in reimbursement for the loss of taxes to said political subdivision of the state, except that this provision shall not be applicable to interests in property rights the legal title to which is in the United States. Payments so made to a political subdivision shall be in lieu of any and all taxes by that subdivision on the property rights for which the payments are made. ARTICLE IX The provisions of this compact shall not apply to or interfere with the right or power of either state to regulate within its boundaries the appropriation, use and control of waters allocated to such state by this compact. ARTICLE X The failure of either state to use the waters, or any part thereof, the use of which is allocated to it under the terms of this compact, shall not constitute a relinquishment of the right to such use to the other state, nor shall it constitute a forfeiture or abandonment of the right to such use. ARTICLE XI In case any reservoir is constructed in one (1) state where the water is to be used principally in the other state, sufficient water not to exceed five (5) cubic feet per

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second shall be released at all times, if necessary for stock water use and conservation of fish and wildlife. ARTICLE XII The provisions of this compact shall remain in full force and effect unless amended or terminated by action of the legislatures of both states and consented to and approved by the congress of the United States in the same manner as this compact is required to be ratified and approved to become effective; provided, that in the event of such amendment or termination all rights theretofore established hereunder or recognized hereby shall continue to be recognized as valid by both states notwithstanding such amendment or termination. ARTICLE XIII Nothing in this compact shall be construed to limit or prevent either state from instituting or maintaining any action or proceeding, legal or equitable, for the protection of any right under this compact or the enforcement of any of its provisions. ARTICLE XIV (a) Nothing in this compact shall be deemed: (i) To affect adversely any rights to the use of the waters of the Snake River, including its tributaries entering downstream from the Wyoming-Idaho state line, owned by or for Indians, Indian tribes and their reservations. The water required to satisfy these rights shall be charged against the allocation made to the state in which the Indians and their lands are located; (ii) To impair or affect any rights or powers of the United States, its agencies or instrumentalities, in and to the use of the waters of the Snake River nor its capacity to acquire rights in and to the use of said waters; (iii) To apply to any waters within the Yellowstone National Park or Grand Teton National Park; (iv) To subject any property of the United States, its agencies or instrumentalities to taxation by either state or subdivisions thereof, nor to create an obligation on the part of the United States, its agents or instrumentalities, by reason of the acquisition, construction or operation of any property or works of whatsoever kind, to make any payments to any state or political subdivisions thereof, state agency, municipality or entity whatsoever in reimbursement for the loss of taxes; (v) To subject any works of the United States used in connection with the control or use of waters which are the subject of this compact to the laws

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of any state to an extent other than the extent to which these laws would apply without regard to this compact. (b) Notwithstanding the provisions of (a) of this article, any beneficial uses hereafter made by the United States, or those acting by or under its authority, within either state, of the waters allocated by this compact shall be within the allocations hereinabove made for use in that state and shall be taken into account in determining the extent of use within that state. ARTICLE XV This compact shall become operative when approved by legislative enactment by each of the states, and when consented to by the congress of the United States. ARTICLE XVI Wyoming hereby relinquishes the right to the allocation of stored water in Grassy Lake Reservoir, as set forth in Wyoming’s reservoir permit No. 4631 Res. and evidenced by certificate No. R-1, page 318, and all claims predicated thereon. IN WITNESS WHEREOF the commissioners have signed this compact in quadruplicate, one (1) of which shall be filed in the archives of the department of state of the United States of America and shall be deemed the authoritative original, and of which a duly certified copy shall be forwarded to the governor of each of the states. Done at the city of Cheyenne, in the state of Wyoming, this 10th day of October, in the year of our Lord, one thousand nine hundred and forty-nine.

390

Appendix B

Appendix B-32: South Platte River Compact

Public Law No. 69–37 44 Statutes at Large 195 (1926) The State of Colorado and the State of Nebraska, desiring to remove all causes of present and future controversy between said States, and between citizens of one against citizens of the other, with respect to the waters of the South Platte River, and being moved by considerations of interstate comity, have resolved to conclude a compact for these purposes and, through their respective Governors, have named as their commissioners: Delph E. Carpenter, for the State of Colorado; and Robert H. Willis, for the State of Nebraska; who have agreed upon the following articles: ARTICLE I In this compact: 1. The State of Colorado and the State of Nebraska are designated, respectively, as “Colorado” and “Nebraska.” 2. The provisions hereof respecting each signatory State, shall include and bind its citizens and corporations and all others engaged or interested in the diversion and use of the waters of the South Platte River in that State. 3. The term “Upper Section” means that part of the South Platte River in the State of Colorado above and westerly from the west boundary of Washington County, Colorado. 4. The term “Lower Section” means that part of the South Platte River in the State of Colorado between the west boundary of Washington County and the intersection of said river with the boundary line common to the signatory States. 5. The term “Interstate Station” means that streams gauging station described in Article II. 6. The term “flow of the river” at the Interstate Station means the measured flow of the river at said station plus all increment to said flow entering the river between the Interstate Station and the diversion works of the Western Irrigation District in Nebraska. ARTICLE II 1. Colorado and Nebraska, at their joint expense, shall maintain a stream gauging station upon the South Platte River at the river bridge near the town of Julesburg, Colorado, or at a convenient point between said bridge and the diversion works of the canal of the Western Irrigation District in Nebraska,

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for the purpose of ascertaining and recording the amount of water flowing in said river from Colorado into Nebraska and to said diversion works at all times between the first day of April and the fifteenth day of October of each year. The location of said station may be changed from year to year as the river channels and water flow conditions of the river may require. 2. The State Engineer of Colorado and the Secretary of the Department of Public Works of Nebraska shall make provision for the co-operative gauging at and the details of operation of said station and for the exchange and publication of records and data. Said state officials shall ascertain the rate of flow of the South Platte River through the Lower Section in Colorado and the time required for increases or decreases of flow, at points within said Lower Section, to reach the Interstate Station. In carrying out the provisions of Article IV of this compact, Colorado shall always be allowed sufficient time for any increase in flow (less permissible diversions) to pass down the river and be recorded at the Interstate Station. ARTICLE III The waters of Lodgepole Creek, a tributary of the South Platte River flowing through Nebraska and entering said river within Colorado, hereafter shall be divided and apportioned between the signatory States as follows: 1. The point of division of the waters of Lodgepole Creek shall be located on said creek two miles north of the boundary line common to the signatory states. 2. Nebraska shall have the full and unmolested use and benefit of all waters flowing in Lodgepole Creek above the point of diversion and Colorado waives all present and future claims to the use of said waters. Colorado shall have the exclusive use and benefit of all waters flowing at or below the point of division. 3. Nebraska may use the channel of Lodgepole Creek below the point of division and the channel of the South Platte River between the mouth of Lodgepole Creek and the Interstate Station, for the carriage of any waters of Lodgepole Creek which may be stored in Nebraska above the point of division and which Nebraska may desire to deliver to ditches from the South Platte River in Nebraska, and any such waters so carried shall be free from interference by diversions in Colorado and shall not be included as a part of the flow of the South Platte River to be delivered by Colorado at the Interstate Station in compliance with Article IV of this compact, provided, however, that such runs of stored water shall be made in amounts of not less than ten cubic feet per second of time and for periods of not less than twenty-four hours.

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Appendix B

ARTICLE IV The waters of the South Platte River hereafter shall be divided and apportioned between the signatory States as follows: 1. At all times between the fifteenth day of October of any year and the first day of April of the next succeeding year, Colorado shall have the full and uninterrupted use and benefit of the waters of the river flowing within the boundaries of the State, except as otherwise provided by Article VI. 2. Between the first day of April and the fifteenth day of October of each year, Colorado shall not permit diversions from the Lower Section of the river, to supply Colorado appropriations having adjudicated dates of priority subsequent to the fourteenth day of June, 1897, to an extent that will diminish the flow of the river at the Interstate Station, on any day, below a mean flow of 120 cubic feet of water per second of time, except as limited in paragraph three (3) of this Article. 3. Nebraska shall not be entitled to receive and Colorado shall not be required to deliver, on any day, any part of the flow of the river to pass the Interstate Station, as provided by paragraph two (2) of this Article, not then necessary for beneficial use by those entitled to divert water from said river within Nebraska. 4. The flow of the river at the Interstate Station shall be used by Nebraska to supply the needs of present perfected rights to the use of water from the river within said State before permitting diversions from the river by other claimants. 5. It is recognized that variable climatic conditions, the regulation and administration of the stream in Colorado, and other causes, will produce diurnal and other unavoidable variations and fluctuations in the flow of the river at the Interstate Station, and it is agreed that, in the performance of the provisions of said paragraph two (2), minor or compensating irregularities and fluctuations in the flow at the Interstate Station shall be permitted; but where any deficiency of the mean daily flow at the Interstate Station may have been occasioned by neglect, error or failure in the performance of duty by the Colorado water officials having charge of the administration of diversions from the Lower Section of the river in that state, each such deficiency shall be made up, within the next succeeding period of seventy-two hours, by delivery of additional flow at the Interstate Station, over and above the amount specified in paragraph two (2) of this Article, sufficient to compensate for such deficiency. 6. Reductions in diversions from the Lower Section of the river, necessary to the performance of paragraph two (2) of this Article by Colorado, shall not impair the rights of appropriators in Colorado (not to include the proposed Nebraska

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canal described in Article VI), whose supply has been so reduced, to demand and receive equivalent amounts of water from other parts of the stream in that State according to its Constitution, laws, and the decisions of its courts. 7. Subject to compliance with the provisions of this Article, Colorado shall have and enjoy the otherwise full and uninterrupted use and benefit of the waters of the river which hereafter may flow within the boundaries of that State from the first day of April to the fifteenth day of October in each year, but Nebraska shall be permitted to divert, under and subject to the provisions and conditions of Article VI, any surplus waters which otherwise would flow past the Interstate Station. ARTICLE V 1. Colorado shall have the right to maintain, operate, and extend, within Nebraska, the Peterson Canal and other canals of the Julesburg Irrigation District which now are or may hereafter be used for the carriage of water from the South Platte River for the irrigation of lands in both states, and Colorado shall continue to exercise control and jurisdiction of said canals and the carriage and delivery of water thereby. This Article shall not excuse Nebraska water users from making reports to Nebraska officials in compliance with the Nebraska laws. 2. Colorado waives any objection to the delivery of water for irrigation of lands in Nebraska by the canals mentioned in paragraph one (1) of this Article, and agrees that all interests in said canals and the use of waters carried thereby, now or hereafter acquired by owners of lands in Nebraska, shall be afforded the same recognition and protection as are the interests of similar land owners served by said canals within Colorado; provided, however, that Colorado reserves to those in control of said canals the right to enforce the collection of charges or assessments, hereafter levied or made against such interest of owners of the lands in Nebraska, by withholding the delivery of water until the payment of such charges or assessments; provided, however, such charges or assessments shall be the same as those levied against similar interests of owners of lands in Colorado. 3. Nebraska grants to Colorado the right to acquire by purchase, prescription, or the exercise of eminent domain, such rights-of-way, easements or lands as may be necessary for the construction, maintenance, operation, and protection of those parts of the above mentioned canals which now or hereafter may extend into Nebraska.

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ARTICLE VI It is the desire of Nebraska to permit its citizens to cause a canal to be constructed and operated for the diversion of water from the South Platte River within Colorado for irrigation of lands in Nebraska; that said canal may commence on the south bank of said river at a point southwesterly from the town of Ovid, Colorado, and may run thence easterly through Colorado along or near the line of survey of the formerly proposed “Perkins County Canal” (sometimes known as the “South Divide Canal”) and into Nebraska, and that said project shall be permitted to divert waters of the river as hereinafter provided. With respect to such proposed canal it is agreed: 1. Colorado consents that Nebraska and its citizens may hereafter construct, maintain, and operate such a canal and thereby may divert water from the South Platte River within Colorado for use in Nebraska, in the manner and at the time in this Article provided, and grants to Nebraska and its citizens the right to acquire by purchase, prescription, or the exercise of eminent domain such rights-of-way, easements or lands as may be necessary for the construction, maintenance, and operation of said canal; subject, however, to the reservations and limitations and upon the conditions expressed in this Article which are and shall be limitations upon and reservations and conditions running with the rights and privileges hereby granted, and which shall be expressed in all permits issued by Nebraska with respect to said canal. 2. The net future flow of the Lower Section of the South Platte River, which may remain after supplying all present and future appropriations from the Upper Section, and after supplying all appropriations from the Lower Section perfected prior to the seventeenth day of December, 1921, and after supplying the additional future appropriations in the Lower Section for the benefit of which a prior and preferred use of thirty-five thousand acre-feet of water is reserved by subparagraph (a) of this Article, may be diverted by said canal between the fifteenth day of October of any year and the first day of April of the next succeeding year subject to the following reservations, limitations and conditions: (a) In addition to the water now diverted from the Lower Section of the river by present perfected appropriations, Colorado hereby reserves the prior, preferred and superior right to store, use and to have in storage in readiness for use on and after the first day of April in each year, an aggregate of thirty-five thousand acre-feet of water to be diverted from the flow of the river in the Lower Section between the fifteenth day of October of each year and the first day of April of the next succeeding year, without regard to the manner or time of making such future uses, and diversions of water by said Nebraska canal shall in no manner impair or interfere

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with the exercise by Colorado of the right of future use of the water hereby reserved. (b) Subject at all times to the reservation made by subparagraph (a) and to the other provisions of this Article, said proposed canal shall be entitled to divert five hundred cubic feet of water per second of time from the flow of the river in the Lower Sections, as of priority of appropriation of date December 17, 1921, only between the fifteenth day of October of any year and the first day of April of the next succeeding year upon the express condition that the right to so divert water is and shall be limited exclusively to said annual period and shall not constitute the basis for any claim to water necessary to supply all present and future appropriations in the Upper Section or present appropriations in the Lower Section and those hereafter to be made therein as provided in subparagraph (a). 3. Neither this compact nor the construction and operation of such a canal nor the diversion, carriage and application of water thereby shall vest in Nebraska, or in those in charge or control of said canal or in the users of water therefrom, any prior, preferred or superior servitude upon or claim or right to the use of any water of the South Platte River in Colorado from the first day of April to the fifteenth day of October of any year or against any present or future appropriator or use of water from said river in Colorado during said period of every year, and Nebraska specifically waives any such claims and agrees that the same shall never be made or asserted. Any surplus waters of the river, which otherwise would flow past the Interstate Station during such period of any year after supplying all present and future diversions by Colorado, may be diverted by such a canal, subject to the other provisions and conditions of this Article. 4. Diversion of water by said canal shall not diminish the flow necessary to pass the Interstate Station to satisfy superior claims of users of water from the river in Nebraska. 5. No appropriations of water from the South Platte River by any other canal within Colorado shall be transferred to said canal or be claimed or asserted for diversion and carriage for use on lands in Nebraska. 6. Nebraska shall have the right to regulate diversions of water by said canal for the purposes of protecting other diversions from the South Platte River within Nebraska and of avoiding violations of the provisions of Article IV; but Colorado reserves the right at all times to regulate and control the diversions by said canal to the extent necessary for the protection of all appropriations

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Appendix B and diversions within Colorado or necessary to maintain the flow at the Interstate Stations as provided by Article IV of this compact.

ARTICLE VII Nebraska agrees that compliance by Colorado with the provisions of this compact and the delivery of water in accordance with its terms shall relieve Colorado from any further or additional demand or claim by Nebraska upon the waters of the South Platte River within Colorado. ARTICLE VIII Whenever any official of either State is designated herein to perform any duty under this compact, such designation shall be interpreted to include the state official or officials upon whom the duties now performed by such official may hereafter devolve, and it shall be the duty of the officials of the State of Colorado charged with the duty of the distribution of the waters of the South Platte River for irrigation purposes, to make deliveries of water at the Interstate Station in compliance with this compact without necessity of enactment of special statutes for such purposes by the General Assembly of the State of Colorado. ARTICLE IX The physical and other conditions peculiar to the South Platte River and to the territory drained and served thereby constitute the basis for this compact and neither of the signatory States hereby concedes the establishment of any general principle or precedent with respect to other interstate streams. ARTICLE X This compact may be modified or terminated at any time by mutual consent of the signatory States, but, if so terminated and Nebraska or its citizens shall seek to enforce any claims of vested rights in the waters of the South Platte River, the statutes of limitation shall not run in favor of Colorado or its citizens with reference to claims of the Western Irrigation District to the water of the South Platte River from the sixteenth day of April, 1916, and as to all other present claims from the date of the approval of this compact to the date of such termination, and the State of Colorado and its citizens who may be made defendants in any action brought for such purpose shall not be permitted to plead the statutes of limitation for such period of time. ARTICLE XI This compact shall become operative when approved by the Legislature of each of the signatory States and by the Congress of the United States. Notice of approval by the Legislature shall be given by the Governor of each State to the Governor of

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the other State and to the President of the United States, and the President of the United States is requested to give notice to the Governors of the signatory States of the approval by the Congress of the United States. IN WITNESS WHEREOF, the Commissioners have signed this compact in duplicate originals, one of which shall be deposited with the Secretary of State of each of the Signatory States. Done at Lincoln, in the State of Nebraska, this 27th day of April, in the year of our Lord One Thousand Nine Hundred and Twenty-three.

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Appendix B-33: Susquehanna River Basin Compact Public Law No. 91–575 84 Statutes at Large 1509 (1970)

PREAMBLE Whereas the signatory parties hereto recognize the water resources of the Susquehanna River Basin as regional assets vested with local, state, and national interest for which they have a joint responsibility; and declare as follows: 1. The conservation, utilization, development, management, and control of the water resources of the Susquehanna River Basin under comprehensive multiple purpose planning will bring the greatest benefits and produce the most efficient service in the public interest; and 2. This comprehensive planning administered by a basin-wide agency will provide flood damage reduction, conservation and development of surface and ground water supply for municipal, industrial, and agricultural uses, development of recreational facilities in relation to reservoirs, lakes and streams, propagation of fish and game, promotion of forest land management, soil conservation, and watershed projects, protection and aid to fisheries, development of hydroelectric power potentialities, improved navigation, control of the movement of salt water, abatement and control of water pollution, and regulation of stream flows toward the attainment of these goals; and 3. The water resources of the basin are presently subject to the duplicating, overlapping, and uncoordinated administration of a large number of governmental agencies which exercise a multiplicity of powers resulting in a splintering of authority and responsibility; and 4. The Interstate Advisory Committee on the Susquehanna River Basin, created by action of the states of New York, Pennsylvania, and Maryland, on the basis of its studies and deliberation has concluded that regional development of the Susquehanna River Basin is feasible, advisable, and urgently needed, and has recommended that an intergovernmental compact with federal participation be consummated to this end; and 5. The Congress of the United States and the executive branch of the federal government have recognized a national interest in the Susquehanna River Basin by authorizing and directing the Corps of Engineers of the Department of the Army, the Department of Agriculture, the Department of Health, Education and Welfare, the Department of Interior, and other federal agencies to cooperate in making comprehensive surveys

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and reports concerning the water resources of the Susquehanna River Basin in which individually or severally the technical aid and assistance of many federal and state agencies have been enlisted, and which are being or have been coordinated through a Susquehanna River Basin Study Coordinating Committee on which the Corps of Engineers of the Department of the Army, the Department of Agriculture, the Department of Commerce, the Department of Health, Education and Welfare, the Department of Interior, the Department of Housing and Urban Development and its predecessor Housing and Home Finance Agency, the Federal Power Commission, and the states of New York, Pennsylvania, and Maryland are or were represented; and 6. Some three million people live and work in the Susquehanna River Basin and its environs, and the government, employment, industry, and economic development of the entire region and the health, safety, and general well-being of its population are and will continue to be affected vitally by the conservation, utilization, development, management, and control of the water resources of the basin; and 7. Demands upon the water resources of the basin are expected to mount because of anticipated increases in population and by reason of industrial and economic growth of the basin and its service area; and 8. Water resources planning and development are technical, complex, and expensive, often requiring fifteen to twenty years from the conception to the completion of large or extensive projects; and 9. The public interest requires that facilities must be ready and operative when and where needed, to avoid the damages of unexpected floods or prolonged drought, and for other purposes; and 10. The Interstate Advisory Committee on the Susquehanna River Basin has prepared a draft of an intergovernmental compact for the creation of a basin agency, and the signatory parties desire to effectuate the purposes thereof; now therefore The states of New York and Maryland and the Commonwealth of Pennsylvania, and the United States of America hereby solemnly covenant and agree with each other, upon the enactment of concurrent legislation by the Congress of the United States and by the respective state legislatures, to the Susquehanna River Basin Compact which consists of this preamble and the articles that follow.

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ARTICLE 1 SHORT TITLE, DEFINITIONS, PURPOSES, AND LIMITATIONS 1.1. Short title.—This compact shall be known and may be cited as the Susquehanna River Basin Compact. 1.2. Definitions.—For the purposes of this compact, and of any supplemental or concurring legislation enacted pursuant to it: 1. “Basin” shall mean the area of drainage of the Susquehanna River and its tributaries into Chesapeake Bay to the southern edge of the Pennsylvania railroad bridge between Havre de Grace and Perryville, Maryland. 2. “Commission” shall mean the Susquehanna River Basin Commission hereby created, and the term “commissioner” shall mean a member of the commission. 3. “Cost” shall mean direct and indirect expenditures, commitment, and net induced adverse effects, whether or not compensated for, used or incurred in connection with the establishment, acquisition, construction, maintenance, and operation of a project. 4. “Diversion” shall mean the transfer of water into or from the basin. 5. “Facility” shall mean any real or personal property, within or without the basin, and improvements thereof or thereon, and any and all rights-ofway, water, water rights, plants, structures, machinery, and equipment acquired, constructed, operated, or maintained for the beneficial use of water resources or related land uses or otherwise including, without limiting the generality of the foregoing, any and all things and appurtenances necessary, useful, or convenient for the control, collection, storage, withdrawal, diversion, release, treatment, transmission, sale, or exchange of water; or for navigation thereon, or the development and use of hydroelectric energy and power, and public recreational facilities; of the propagation of fish and wildlife; or to conserve and protect the water resources of the basin or any existing or future water supply source, or to facilitate any other uses of any of them. 6. “Federal government” shall mean the government of the United States of America, and any appropriate branch, department, bureau, or division thereof, as the case may be. 7. “Project” shall mean any work, service, or activity which is separately planned, financed, or identified by the commission, or any separate facility undertaken or to be undertaken by the commission or otherwise

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within a specified area, for the conservation, utilization, control, development, or management of water resources which can be established and utilized independently or as an addition to an existing facility and can be considered as a separate entity for purposes of evaluation. 8. “Signatory party” shall mean a state or commonwealth party to this compact, or the federal government. 9. “Waters” shall mean both surface and underground waters which are contained within the drainage area of the Susquehanna River in the states of New York, Pennsylvania, and Maryland. 10. “Water resources” shall include all waters and related natural resources within the basin. 11. “Withdrawal” shall mean a taking or removal of water from any source within the basin for use within the basin. 12. “Person” shall mean an individual, corporation, partnership, unincorporated association, and the like and shall have no gender, and the singular shall include the plural. 1.3. Purpose and findings.—The legislative bodies of the respective signatory parties hereby find and declare: 1. The water resources of the Susquehanna River Basin are affected with a local, state, regional, and national interest, and the planning, conservation, utilization, development, management, and control of these resources, under appropriate arrangements for intergovernmental cooperation, are public purposes of the respective signatory parties. 2. The water resources of the basin are subject to the sovereign rights and responsibilities of the signatory parties, and it is the purpose of this compact to provide for a joint exercise of these powers of sovereignty in the common interest of the people of the region. 3. The water resources of the basin are functionally interrelated, and the uses of these resources are interdependent. A single administrative agency is therefore essential for effective and economical direction, supervision, and coordination of water resources efforts and programs of federal, state, and local governments and of private enterprise. 4. Present and future demands require increasing economies and efficiencies in the use and reuse of water resources, and these can be brought about only by comprehensive planning, programming, and management under the direction of a single administrative agency.

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5. In general, the purposes of this compact are to promote interstate comity; to remove causes of possible controversy; to make secure and protect developments within the states; to encourage and provide for the planning, conservation, utilization, development, management, and control of the water resources of the basin; to provide for cooperative and coordinated planning and action by the signatory parties with respect to water resources; and to apply the principle of equal and uniform treatment to all users of water and of water related facilities without regard to political boundaries. 6. It is the express intent of the signatory parties that the commission shall engage in the construction, operation, and maintenance of a project only when the project is necessary to the execution of the comprehensive plan and no other competent agency is in a position to act, or such agency fails to act. 1.4. Powers of Congress; withdrawal.—Nothing in this compact shall be construed to relinquish the functions, powers, or duties of the Congress of the United States with respect to the control of any navigable waters within the basin, nor shall any provisions hereof be construed in derogation of any of the constitutional powers of the Congress to regulate commerce among the states and with foreign nations. The power and right of the Congress to withdraw the federal government as a party to this compact or to revise or modify the terms, conditions, and provisions under which it may remain a party by amendment, repeal, or modification of any federal statute applicable hereto is recognized by the signatory parties. 1.5. Duration of compact.— (a) The duration of this compact shall be for an initial period of 100 years from its effective date, and it shall be continued for additional periods of 100 years if not less than 20 years nor more than 25 years prior to the termination of the initial period or any succeeding period none of the signatory states, by authority of an act of its legislature, notifies the commission of intention to terminate the compact at the end of the then current 100-year period. (b) In the event this compact should be terminated by operation of paragraph (a) above, the commission shall be dissolved, its assets and liabilities transferred in accordance with the equities of the signatory parties therein, and its corporate affairs wound up in accordance with agreement of the signatory parties or, failing agreement, by act of the Congress.

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ARTICLE 2 ORGANIZATION AND AREA 2.1. Commission created.—The Susquehanna River Basin Commission is hereby created as a body politic and corporate, with succession for the duration of this compact, as an agency and instrumentality of the governments of the respective signatory parties. 2.2. Commission membership.—The members of the commission shall be the governor or the designee of the governor of each signatory state, to act for him, and one member to be appointed by the President of the United States to serve at the pleasure of the President. 2.3. Alternates.—An alternate from each signatory party shall be appointed by its member of the commission unless otherwise provided by the laws of the signatory party. The alternate, in the absence of the member, shall represent the member and act for him. In the event of a vacancy in the office of alternate, it shall be filled in the same manner as the original appointment. 2.4. Compensation.—Members of the commission and alternates shall serve without compensation from the commission but may be reimbursed for necessary expenses incurred in and incident to the performance of their duties. 2.5. Voting power.—Each member is entitled to one vote. No action of the commission may be taken unless three of the four members vote in favor thereof. 2.6. Organization and procedure.—The commission shall provide for its own organization and procedure, and shall adopt the rules and regulations governing its meetings and transactions. It shall organize annually by the election of a chairman and vice-chairman from among its members. It shall provide by its rules for the appointment by each member in his discretion of an advisor to serve without compensation from the commission, who may attend all meetings of the commission and its committees. 2.7. Jurisdiction of the commission.—The commission shall have, exercise, and discharge its functions, powers, and duties within the limits of the basin. Outside the basin, the commission shall act at its discretion, but only to the extent necessary to implement its responsibilities within the basin, and where necessary subject to the consent of the state wherein it proposes to act. ARTICLE 3 POWERS AND DUTIES OF THE COMMISSION 3.1. General.—The commission shall develop and effectuate plans, policies, and projects relating to the water resources of the basin. It shall adopt and promote

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Appendix B uniform and coordinated policies for water resources conservation and management in the basin. It shall encourage and direct the planning, development, operation, and subject to applicable laws the financing of water resources projects according to such plans and policies.

3.2. Policy.—It is the policy of the signatory parties to preserve and utilize the functions, powers, and duties of the existing offices and agencies of government to the extent consistent with this compact, and the commission is directed to utilize those offices and agencies for the purposes of this compact. 3.3. Comprehensive plan, program and budgets.—The commission in accordance with Article 14 of this compact, shall formulate and adopt: 1. A comprehensive plan, after consultation with appropriate water users and interested public bodies for the immediate and long range development and use of the water resources of the basin; 2. A water resources program, based upon the comprehensive plan, which shall include a systematic presentation of the quantity and quality of water resources needs of the area to be served for such reasonably foreseeable period as the commission may determine, balanced by existing and proposed projects required to satisfy such needs, including all public and private projects affecting the basin, together with a separate statement of the projects proposed to be undertaken by the commission during such period; and 3. An annual current expense budget and an annual capital budget consistent with the commission’s program, projects, and facilities for the budget period. 3.4. Powers of commission.—The commission may: 1. Plan, design, acquire, construct, reconstruct, complete, own, improve, extend, develop, operate, and maintain any and all projects, facilities, properties, activities, and services which are determined by the commission to be necessary, convenient, or useful for the purposes of this compact. 2. Establish standards of planning, design, and operation of all projects and facilities in the basin to the extent they affect water resources, including without limitation thereto water, sewage and other waste treatment plants and facilities, pipelines, transmission lines, stream and lake recreational facilities, trunk mains for water distribution, local flood protection works, watershed management programs, and ground water recharging operations.

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3. Conduct and sponsor research on water resources and their planning, use, conservation, management, development, control, and protection, and the capacity, adaptability, and best utility of each facility thereof, and collect, compile, correlate, analyze, report, and interpret data on water resources and uses in the basin, including without limitation thereto the relation of water to other resources, industrial water technology, ground water movement, relation between water price and water demand and other economic factors, and general hydrological conditions. 4. Collect, compile, coordinate, and interpret systematic surface and ground water data, and publicize such information when and as needed for water uses, flood warning, quality maintenance, or other purposes. 5. Conduct ground and surface water investigations, tests, and operations, and compile data relating thereto as may be required to formulate and administer the comprehensive plan. 6. Prepare, publish, and disseminate information and reports concerning the water problems of the basin and for the presentation of the needs and resources of the basin and policies of the commission to executive and legislative branches of the signatory parties. 7. Negotiate loans, grants, gifts, services, or other aids as may be lawfully available from public or private sources to finance or assist in effectuating any of the purposes of this compact, and receive and accept them upon terms and conditions, and subject to provisions, as may be required by federal or state law or as the commission may deem necessary or desirable. 8. Exercise such other and different powers as may be delegated to it by this compact or otherwise pursuant to law, and have and exercise all powers necessary or convenient to carry out its express powers and other powers which reasonably may be implied therefrom. 9. Adopt, amend, and repeal rules and regulations to implement this compact. 3.5. Duties of the commission.—The commission shall: 1. Develop and effectuate plans, policies, and projects relating to water resources, adopt, promote, and coordinate policies and standards for water resources conservation, control, utilization, and management, and promote and implement the planning, development, and financing of water resources projects.

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2. Undertake investigations, studies, and surveys, and acquire, construct, operate, and maintain projects and facilities in regard to the water resources of the basin, whenever it is deemed necessary to do so to activate or effectuate any of the provisions of this compact. 3. Administer, manage, and control water resources in all matters determined by the commission to be interstate in nature or to have a major effect on the water resources and water resources management. 4. Assume jurisdiction in any matter affecting water resources whenever it determines after investigation and public hearing upon due notice given, that the effectuation of the comprehensive plan or the implementation of this compact so requires. If the commission finds upon subsequent hearing requested by an affected signatory party that the party will take the necessary action, the commission may relinquish jurisdiction. 5. Investigate and determine if the requirements of the compact or the rules and regulations of the commission are complied with, and if satisfactory progress has not been made, institute an action or actions in its own name in any state or federal court of competent jurisdiction to compel compliance with any and all of the provisions of this compact or any of the rules and regulations of the commission adopted pursuant thereto. An action shall be instituted in the name of the commission and shall be conducted by its own counsel. 3.6. Cooperative legislation and further jurisdiction.— (a) Each of the signatory parties agrees that it will seek enactment of such additional legislation as will be required to enable its officers, departments, commissions, boards, and agents to accomplish effectively the obligations and duties assumed under the terms of this compact. (b) Nothing in the compact shall be construed to repeal, modify, or qualify the authority of any signatory party to enact any legislation or enforce any additional conditions and restrictions within its jurisdiction. 3.7. Coordination and cooperation.—The commission shall promote and aid the coordination of the activities and programs of federal, state, municipal, and private agencies concerned with water resources administration in the basin. To this end, but without limitation thereto, the commission may: 1. Advise, consult, contract, financially assist, or otherwise cooperate with any and all such agencies; 2. Employ any other agency or instrumentality of any of the signatory parties or of any political subdivision thereof, in the design, construction,

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operation, and maintenance of structures, and the installation and management of river control systems, or for any other purpose; 3. Develop and adopt plans and specifications for particular water resources projects and facilities which so far as consistent with the comprehensive plan incorporate any separate plans of other public and private organizations operating in the basin, and permit the decentralized administration thereof; 4. Qualify as a sponsoring agency under any federal legislation heretofore or hereafter enacted to provide financial or other assistance for the planning, conservation, utilization, development, management, or control of water resources. 3.8. Allocations, diversions, and releases.— (a) The commission shall have power from time to time as the need appears, to allocate the waters of the basin to and among the states signatory to this compact and impose related conditions, obligations, and release requirements. (b) The commission shall have power from time to time as the need appears to enter into agreements with other river basin commissions or other states with respect to in-basin and out-of-basin allocations, withdrawals, and diversions. (c) No allocation of waters made pursuant to this section shall constitute a prior appropriation of the waters of the basin or confer any superiority of right in respect to the use of those waters, nor shall any such action be deemed to constitute an apportionment of the waters of the basin among the parties hereto. This subsection shall not be deemed to limit or restrict the power of the commission to enter into covenants with respect to water supply, with a duration not exceeding the life of this compact, as it may deem necessary for the benefit or development of the water resources of the basin. 3.9. Rates and charges.—The commission, from time to time after public notice and public hearing upon due notice given may fix, alter, and revise rates, rentals, charges, and tolls, and classifications thereof, without regulation or control by any department, office, or agency of any signatory party, for the use of facilities owned or operated by it, and any services or products which it provides. 3.10. Referral and review.—No projects affecting the water resources of the basin, except those not requiring review and approval by the commission under

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Appendix B paragraph 3 following, shall be undertaken by any person, governmental authority or other entity prior to submission to and approval by the commission or appropriate agencies of the signatory parties for review.

1. All water resources projects for which a permit or other form of permis sion to proceed with construction or implementation is required by legislative action of a signatory party or by rule or regulation of an office or agency of a signatory party having functions, powers, and duties in the planning, conservation, development, management, or control of water resources shall be submitted as heretofore to the appropriate office or agency of the signatory party for review and approval. To assure that the commission is apprised of all projects within the basin, monthly reports and listings of all permits granted, or similar actions taken, by offices or agencies of the signatory parties shall be submitted to the commission in a manner prescribed by it. Those projects which also require commission approval pursuant to the provisions of paragraphs 2 (ii) and 2 (iii) following shall be submitted to the commission through appropriate offices or agencies of a signatory party, except that, if no agency of a signatory party has jurisdiction, such projects shall be submitted directly to the commission in such manner as the commission shall prescribe. 2. Approval of the commission shall be required for, but not limited to, the following: (i) All projects on or crossing the boundary between any two signatory states; (ii) Any project involving the diversion of water; (iii) Any project within the boundaries of any signatory state found and determined by the commission or by any agency of a signatory party having functions, powers, and duties in the planning, conservation, development, management, or control of water resources to have a significant effect on water resources within another signatory state; and (iv) Any project which has been included by the commission, after hearing, as provided in Article 14, section 14.1, as a part of the commission’s comprehensive plan for the development of the water resources of the basin, or which would have a significant effect upon the plan. 3. Review and approval by the commission shall not be required for: (i) Projects which fall into an exempt classification or designation established by legislative action of a signatory party or by rule or

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regulation of an office or agency of a signatory party having functions, powers, and duties in the planning, conservation, development, management, or control of water resources. The sponsors of those projects are not required to obtain a permit or other form of permission to proceed with construction or implementation, unless it is determined by the commission or by the agency of a signatory party that such project or projects may cause an adverse, adverse cumulative, or an interstate effect on water resources of the basin, and the project sponsor has been notified in writing by the commission or by the agency of a signatory party that commission approval is required. (ii) Projects which are classified by the commission as not requiring its review and approval, for so long as they are so classified. 4. The commission shall approve a project if it determines that the project is not detrimental to the proper conservation, development, management, or control of the water resources of the basin and may modify and approve as modified, or may disapprove the project, if it determines that the project is not in the best interest of the conservation, development, management, or control of the basin’s water resources, or is in conflict with the comprehensive plan. 5. The commission, after consultation with the appropriate offices or agencies of the signatory parties, shall establish the procedure of submission, review, and consideration of projects. Any procedure for review and approval of diversions of water shall include public hearing on due notice given, with opportunity for interested persons, agencies, governmental units, and signatory parties to be heard and to present evidence. A complete transcript of the proceedings at the hearing shall be made and preserved, and it shall be made available under rules for that purpose adopted by the commission. 6. Any determination of the commission pursuant to this article or any article of the compact providing for judicial review shall be subject to such judicial review in any court of competent jurisdiction, provided that an action or proceeding for such review is commenced within 90 days from the effective date of the determination sought to be reviewed; but a determination of the commission concerning a diversion, under section 3.10–2 (ii) with the claimed effect of reducing below a proper minimum the flow of water in that portion of the basin within the area of a signatory party, shall be subject to judicial review under the particular provisions of paragraph 7 below.

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7. Any signatory party deeming itself aggrieved by an action of the commission concerning a diversion under section 3.10–2 (ii) with the claimed effect of reducing below a proper minimum the flow of water in that portion of the basin which lies within the area of that signatory party, and notwithstanding the powers provided to the commission by this compact, may have review of commission action approving the diversion in the Supreme Court of the United States; provided that a proceeding for such review is commenced within one year from the date of action sought to be reviewed. Any such review shall be on the record made before the commission. The action of the commission shall be affirmed, unless the court finds that it is not supported by substantial evidence. 3.11. Advisory committees.—The commission may constitute and empower advisory committees. ARTICLE 4 WATER SUPPLY 4.1. Generally.—The commission shall have power to develop, implement, and effectuate plans and projects for the use of the water of the basin for domestic, municipal, agricultural, and industrial water supply. To this end, without limitation thereto, it may provide for, construct, acquire, operate, and maintain dams, reservoirs, and other facilities for utilization of surface and ground water resources, and all related structures, appurtenances, and equipment on the river and its tributaries and at such off-river sites as it may find appropriate, and may regulate and control the use thereof. 4.2. Storage and release of waters.— (a) The commission shall have power to acquire, construct, operate, and control projects and facilities for the storage and release of waters, for the regulation of flows and supplies of surface and ground waters of the basin, for the protection of public health, stream quality control, economic development, improvement of fisheries, recreation, dilution and abatement of pollution, the prevention of undue salinity, and other purposes. (b) No signatory party shall permit any augmentation of flow to be diminished by the diversion of any water of the basin during any period in which waters are being released from storage under the direction of the commission for the purpose of augmenting such flow, except in cases where the diversion is authorized by this compact, or by the commission

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pursuant thereto, or by the judgment, order, or decree of a court of competent jurisdiction. 4.3. Assessable improvements.—The commission may provide water management and regulation in the main stream or any tributary in the basin and, in accordance with the procedures of applicable state laws, may assess on an annual basis or otherwise the cost thereof upon water users or any classification of them specially benefited thereby to a measurable extent, provided that no such assessment shall exceed the actual benefit to any water user. Any such assessment shall follow the procedure prescribed by law for local improvement assessments and shall be subject to review in any court of competent jurisdiction. 4.4. Coordination.—Prior to entering upon the execution of any project authorized by this article, the commission shall review and consider all existing rights, plans, and programs of the signatory parties, their political subdivisions, private parties, and water users which are pertinent to such project, and shall hold a public hearing on each proposed project. 4.5. Additional powers.—In connection with any project authorized by this article, the commission shall have power to provide storage, treatment, pumping, and transmission facilities, but nothing herein shall be construed to authorize the commission to engage in the business of distributing water. ARTICLE 5 WATER QUALITY MANAGEMENT AND CONTROL 5.1. General powers.— (a) The commission may undertake or contract for investigations, studies, and surveys pertaining to existing water quality, effects of varied actual or projected operations on water quality, new compounds and materials and probable future water quality in the basin. The commission may receive, expend, and administer funds, federal, state, local, or private as may be available to carry out these functions relating to water quality investigations. (b) The commission may acquire, construct, operate, and maintain projects and facilities for the management and control of water quality in the basin whenever the commission deems necessary to activate or effectuate any of the provisions of this compact. 5.2. Policy and standards.— (a) In order to conserve, protect, and utilize the water quality of the basin in accordance with the best interests of the people of the basin and the

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Appendix B states, it shall be the policy of the commission to encourage and coordinate the efforts of the signatory parties to prevent, reduce, control, and eliminate water pollution and to maintain water quality as required by the comprehensive plan.

(b) The legislative intent in enacting this article is to give specific emphasis to the primary role of the states in water quality management and control. (c) The commission shall recommend to the signatory parties the establishment, modification, or amendment of standards of quality for any waters of the basin in relation to their reasonable and necessary use as the commission shall deem to be in the public interest. (d) The commission shall encourage cooperation and uniform enforcement programs and policies by the water quality control agencies of the signatory parties in meeting the water quality standards established in the comprehensive plan. (e) The commission may assume jurisdiction whenever it determines after investigation and public hearing upon due notice given that the effectuation of the comprehensive plan so requires. After such investigation, notice, and hearing, the commission may adopt such rules, regulations, and water quality standards as may be required to preserve, protect, improve, and develop the quality of the waters of the basin in accordance with the comprehensive plan. 5.3. Cooperative administration and enforcement.— (a) Each of the signatory parties agrees to prohibit and control pollution of the waters of the basin according to the requirements of this compact and to cooperate faithfully in the control of future pollution in and abatement of existing pollution from the waters of the basin. (b) The commission shall have the authority to investigate and determine if the requirements of the compact or the rules, regulations, and water quality standards of the commission are complied with and if satisfactory progress has not been made, may institute an action or actions in its own name in the proper court or courts of competent jurisdiction to compel compliance with any and all of the provisions of this compact or any of the rules, regulations, and water quality standards of the commission adopted pursuant thereto. 5.4. Further jurisdiction.—Nothing in this compact shall be construed to repeal, modify, or qualify the authority of any signatory party to enact any legislation

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or enforce any additional conditions and restrictions to lessen or prevent the pollution of waters within its jurisdiction. ARTICLE 6 FLOOD PROTECTION 6.1. Flood control authority.—The commission may plan, design, construct, and operate and maintain projects and facilities it deems necessary or desirable for flood plain development and flood damage reduction. It shall have power to operate such facilities and to store and release waters of the Susquehanna River and its tributaries and elsewhere within the basin, in such manner, at such times, and under such regulations as the commission may deem appropriate to meet flood conditions as they may arise. 6.2. Regulations.— (a) The commission may study and determine the nature and extent of the flood plains of the Susquehanna River and its tributaries. Upon the basis of the studies, it may delineate areas subject to flooding, including but not limited to a classification of lands with reference to relative risk of flooding and the establishment of standards for flood plain use which will promote economic development and safeguard the public health, welfare, safety, and property. Prior to the adoption of any standards delineating the area or defining the use, the commission shall hold public hearings with respect to the substance of the standards in the manner provided by Article 15. The proposed standards shall be available from the commission at the time notice is given, and interested persons shall be given an opportunity to be heard thereon at the hearings. (b) The commission shall have power to promulgate, adopt, amend, and repeal from time to time as necessary, standards relating to the nature and extent of the uses of land in areas subject to flooding. (c) In taking action pursuant to subsection (b) of this section and as a prerequisite thereto, the commission shall consider the effect of particular uses of the flood plain in question on the health and safety of persons and property in the basin, the economic and technical feasibility of measures available for the development and protection of the flood plain, and the responsibilities, if any, of local, state, and federal governments connected with the use or proposed use of the flood plain in question. The commission shall regulate the use of particular flood plains in the manner and degree it finds necessary for the factors enumerated in this subsection, but only with the consent of the affected signatory state, and

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Appendix B shall suspend such regulation when and so long as the signatory party or parties or political subdivision possessing jurisdiction have in force applicable laws which the commission finds give adequate protection for the purposes of this section.

(d) In order to conserve, protect, and utilize the Susquehanna River and its tributaries in accordance with the best interests of the people of the basin and the signatory parties, it shall be the policy of the commission to encourage and coordinate the efforts of the signatory parties to control modification of the river and its tributaries by encroachment. 6.3. Flood lands acquisition.—The commission shall have power to acquire the fee or any lesser interest in lands and improvements thereon within the area of a flood plain for the purpose of regulating the use or types of construction of such property to minimize the flood hazard, convert the property to uses or types of construction appropriate to flood plain conditions, or prevent constrictions or obstructions that reduce the ability of the river channel and flood plain to carry flood water. 6.4. Existing structures.—No rule or regulation issued by the commission pursuant to this shall be construed to require the demolition, removal, or alteration of any structure in place or under construction prior to the issuance thereof, without the payment of just compensation therefor. However, new construction or any addition to or alteration in any existing structure made or commenced subsequent to the issuance of such rule or regulation, or amendment, shall conform thereto. 6.5. Police powers.—The regulation of use of flood plain lands is within the police powers of the signatory states for the protection of public health and the safety of the people and their property and shall not be deemed a taking of land or lands for which compensation shall be paid to the owners thereof. 6.6. Cooperation.—Each of the signatory parties agrees to control flood plain use along and encroachment upon the Susquehanna and its tributaries and to cooperate faithfully in these respects. 6.7. Other authority.—Nothing in this article shall be construed to prevent or in any way to limit the power of any signatory party, or any agency or subdivision thereof, to issue or adopt and enforce any requirement or requirements with respect to flood plain use or construction thereon more stringent than the rules, regulations, or encroachment lines in force pursuant to this article. The commission may appear in any court of competent jurisdiction to bring actions or proceedings in law or equity to enforce the provisions of this article.

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6.8. Debris.—The signatory states agree that dumping or littering upon or in the waters of the Susquehanna River or its tributaries or upon the frozen surfaces thereof of any rubbish, trash, litter, debris, abandoned properties, waste material, or offensive matter, is prohibited and that the law enforcement officials of each state shall enforce this prohibition. ARTICLE 7 WATERSHED MANAGEMENT 7.1. Watersheds generally.—The commission shall promote sound practices of watershed management in the basin, including projects and facilities to retard runoff and waterflow and prevent soil erosion. 7.2. Soil conservation and land and forest management.—The commission, subject to the limitations in section 7.4 (b), may acquire, sponsor, or operate facilities and projects to encourage soil conservation, prevent and control erosion, and promote land reclamation and sound land and forest management. 7.3. Fish and wildlife.—The commission, subject to the limitations in section 7.4 (b), may acquire, sponsor, or operate projects and facilities for the maintenance and improvement of fish and wildlife habitat related to the water resources of the basin. 7.4. Cooperative planning and operation.— (a) The commission shall cooperate with the appropriate agencies of the signatory parties and with other public and private agencies in the planning and effectuation of a coordinated program of facilities and projects authorized by this article. (b) The commission shall not acquire or operate any such project or facility unless it has first found and determined that no other suitable unit or agency of government is in a position to acquire or operate the same upon reasonable conditions, or such unit or agency fails to do so. ARTICLE 8 RECREATION 8.1. Development.—The commission may provide for the development of water related public sports and recreational facilities. The commission on its own account or in cooperation with a signatory party, political subdivision or any agency thereof, may provide for the construction, maintenance, and administration of such facilities, subject to the provisions of section 8.2 hereof.

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8.2. Cooperative planning and operation.— (a) The commission shall cooperate with the appropriate agencies of the signatory parties and with other public and private agencies in the planning and effectuation of a coordinated program or facilities and projects authorized by this article. (b) The commission shall not operate any such project or facility unless it has first found and determined that no other suitable unit or agency of government is available to operate the same upon reasonable conditions. 8.3. Operation and maintenance.—The commission, within limits prescribed by this article, shall: 1. Encourage activities of other public agencies having water related recreational interests and assist in the coordination thereof; 2. Recommend standards for the development and administration of water related recreational facilities; 3. Provide for the administration, operation, and maintenance of recreation facilities owned or controlled by the commission and for the letting and supervision of private concessions in accordance with this article. 8.4. Concessions.—The commission, after public hearing on due notice given, shall provide by regulation a procedure for the award of contracts for private concessions in connection with its recreational facilities, including any renewal or extension thereof, under terms and conditions determined by the commission. ARTICLE 9 OTHER PUBLIC VALUES 9.1. Inherent values.—The signatory parties agree that it is a purpose of this compact in effectuating the conservation and management of water resources to preserve and promote the economic and other values inherent in the historic and the scenic and other natural amenities of the Susquehanna River Basin for the enjoyment and enrichment of future generations, for the promotion and protection of tourist attractions in the basin, and for the maintenance of the economic health of allied enterprises and occupations so as to effect orderly, balanced, and considered development in the basin. 9.2. Project compatibility.—To this end, the signatory parties agree that in the consideration, authorization, construction, maintenance, and operation of

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all water resources projects in the Susquehanna Basin, their agencies and subdivisions, and the Susquehanna River Basin Commission will consider the compatibility of such projects with these other public values. 9.3. Regulation standards.—The commission may recommend to governmental units with jurisdiction within areas considered for scenic or historic designation minimum standards of regulation of land and water use and such other protective measures as the commission may deem desirable. 9.4. Local area protection.—The commission may draft and recommend for adoption ordinances and regulations which would assist, promote, develop, and protect those areas and the character of their communities. Local governments may consider parts of their area which have been designated scenic or historic areas under the provisions of this article separately from the municipality as a whole, and pursuant to the laws of the state governing the adoption of those regulations generally may enact regulations limited to the designated area. In making recommendations to a local government which is partly in and partly out of such a scenic or historic area the commission may make recommendations for the entire municipality. ARTICLE 10 HYDROELECTRIC POWER 10.1. Development.—The waters of the Susquehanna River and its tributaries may be impounded and used by or under authority of the commission for the generation of hydroelectric power and hydroelectric energy in accordance with the comprehensive plan. 10.2. Power generation.—The commission may develop and operate, or authorize to be developed and operated, dams and related facilities and appurtenances for the purpose of generating electric power and hydroelectric energy. 10.3. Transmission.—The commission may provide facilities for the transmission of hydroelectric power and hydroelectric energy produced by it where such facilities are not otherwise available upon reasonable terms, for the purpose of wholesale marketing of power and nothing herein shall be construed to authorize the commission to engage in the business of direct sale to consumers. 10.4. Development contracts.—The commission, after public hearing on due notice given, may enter into contracts on reasonable terms, consideration, and duration under which public utilities or public agencies may develop hydroelectric power and hydroelectric energy through the use of dams, related facilities, and appurtenances.

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10.5. Rates and charges.—Rates and charges fixed by the commission for power which is produced by its facilities shall be reasonable, nondiscriminatory, and just. ARTICLE 11 REGULATION OF WITHDRAWAL AND DIVERSIONS; PROTECTED AREAS AND EMERGENCIES 11.1. Power of regulation.—The commission may regulate and control withdrawals and diversions from surface waters and ground waters of the basin, as provided by this article. The commission may enter into agreements with the signatory parties relating to the exercise of such power or regulation or control and may delegate to any of them such powers of the commission as it may deem necessary or desirable. 11.2. Determination of protected area.—The commission, from time to time after public hearing upon due notice given, may determine and delineate such areas within the basin wherein the demands upon supply made by water users have developed or threaten to develop to such a degree as to create a water shortage or impair or conflict with the requirements or effectuation of the comprehensive plan, and any such area may be designated as a protected area, with the consent of the member or members from the affected state or states. The commission, whenever it determines that such shortage no longer exists, shall terminate the protected status of such area and shall give public notice of such termination. 11.3. Diversion and withdrawal permits.—In any protected area so determined and delineated, no person shall divert or withdraw water for domestic, municipal, agricultural, or industrial uses in excess of such quantities as the commission may prescribe by general regulations, except (1) pursuant to a permit granted under this article, or (2) pursuant to a permit or approval heretofore granted under the laws of any of the signatory states. 11.4. Emergency.— (a) In the event of a drought which may cause an actual and immediate shortage of available water supply within the basin, or within any part thereof, the commission after public hearing upon due notice given, may determine and delineate the area of the shortage and by unanimous vote declare a drought emergency therein. For the duration of the drought emergency as determined by the commission, it thereupon may direct increases or decreases in any allocations, diversions, or releases previously granted or required, for a limited time to meet the emergency condition.

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(b) In the event of a disaster or catastrophe other than drought, natural or manmade, which causes or may cause an actual and immediate shortage of available and usable water, the commission by unanimous consent may impose direct controls on the use of water and shall take such action as is necessary to coordinate the effort of federal, state, and local agencies and other persons and entities affected. 11.5. Standards.—Permits shall be granted, modified, or denied, as the case may be, to avoid such depletion of the natural stream flows and ground waters in the protected area or in an emergency area as will adversely affect the comprehensive plan or the just and equitable interests and rights of other lawful users of the same source, giving due regard to the need to balance and reconcile alternative and conflicting uses in the event of an actual or threatened shortage of water of the quality required. 11.6. Judicial review.—The determinations and delineations of the commission pursuant to section 11.2 and the granting, modification or denial of permits pursuant to sections 11.3, 11.4, and 11.5 shall be subject to judicial review in any court of competent jurisdiction. 11.7. Maintenance of records.—Each signatory party shall provide for the maintenance and preservation of such records of authorized diversions and withdrawals and the annual volume thereof as the commission shall prescribe. Such records and supplementary reports shall be furnished to the commission at its request. 11.8. Existing state systems.—Whenever the commission finds it necessary or desirable to exercise the powers conferred with respect to emergencies by this article, any diversion or withdrawal permits authorized or issued under the laws of any of the signatory states shall be superseded to the extent of any conflict with the control and regulation exercised by the commission. ARTICLE 12 INTERGOVERNMENTAL RELATIONS 12.1. Federal agencies and projects.—For the purposes of avoiding conflicts of jurisdiction and of giving full effect to the commission as a regional agency of the signatory parties, the following rules shall govern federal projects affecting the water resources of the basin, subject in each case to the provisions of section 1.4 of this compact: 1. The planning of all projects related to powers delegated to the commission by this compact shall be undertaken in consultation with the commission.

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2. No expenditure or commitment shall be made for or on account of the construction, acquisition, or operation of any project or facility nor shall it be deemed authorized, unless it shall have first been included by the commission in the comprehensive plan. 3. Each federal agency otherwise authorized by law to plan, design, construct, operate or maintain any project or facility in or for the basin shall continue to have, exercise, and discharge such authority except as specifically provided by this section. 12.2. State and local agencies and projects.—For the purposes of avoiding conflicts of jurisdiction and of giving full effect to the commission as a regional agency of the signatory parties, the following rules shall govern projects of the signatory states, their political subdivisions and public corporations affecting water resources of the basin: 1. The planning of all projects related to powers delegated to the commission by this compact shall be undertaken in consultation with the commission; 2. No expenditure or commitment shall be made for or on account of the construction, acquisition, or operation of any project or facility unless it first has been included by the commission in the comprehensive plan; 3. Each state and local agency otherwise authorized by law to plan, design, construct, operate, or maintain any project or facility in or for the basin shall continue to have, exercise, and discharge such authority, except as specifically provided by this section. 12.3. Reserved taxing powers of states.—Each of the signatory parties reserves the right to levy, assess, and collect fees, charges, and taxes on or measured by the withdrawal or diversion of waters of the basin for use within the jurisdiction of the respective signatory parties. 12.4. Project costs and evaluation standards.—The commission shall establish uniform standards and procedures for the evaluation, determination of benefits, and cost allocations of projects affecting the basin, and for the determination of project priorities, pursuant to the requirements of the comprehensive plan and its water resources program. The commission shall develop equitable cost sharing and reimbursement formulas for the signatory parties including: 1. Uniform and consistent procedures for the allocation of project costs among purposes included in multiple-purpose programs;

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2. Contracts and arrangements for sharing financial responsibility among and with signatory parties, public bodies, groups, and private enterprise, and for the supervision of their performance; 3. Establishment and supervision of a system of accounts for reimbursement purposes and directing the payments and charges to be made from such accounts; 4. Determining the basis and apportioning amounts (i) of reimbursable revenues to be paid signatory parties or their political subdivisions, and (ii) of payments in lieu of taxes to any of them. 12.5. Cooperative services.—The commission shall furnish technical services, advice, and consultation to authorized agencies of the signatory parties with respect to the water resources of the basin, and each of the signatory parties pledges itself to provide technical and administrative service to the commission upon request, within the limits of available appropriations, and to cooperate generally with the commission for the purposes of this compact, and the cost of such service may be reimbursable whenever the parties deem appropriate. ARTICLE 13 CAPITAL FINANCING 13.1. Borrowing power.—The commission may borrow money for any of the purposes of this compact and may issue its negotiable bonds and other evidences of indebtedness in respect thereto. All such bonds and evidences of indebtedness shall be payable solely out of the properties and revenues of the commission without recourse to taxation. The bonds and other obligations of the commission, except as may be otherwise provided in the indenture under which they were issued, shall be direct and general obligations of the commission, and the full faith and credit of the commission are hereby pledged for the prompt payment of the debt service thereon and for the fulfillment of all other undertakings of the commission assumed by it to or for the benefit of the holders thereof. 13.2. Funds and expenses.—The purposes of this compact shall include without limitation thereto all costs of any project or facility or any part thereof, including interest during a period of construction and a reasonable time thereafter and any incidental expenses (legal, engineering, fiscal, financial consultant, and other expenses) connected with issuing and disposing of the bonds; all amounts required for the creation of an operating fund, construction fund, reserve fund, sinking fund, or other special fund; all other expenses connected

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Appendix B with the planning, design, acquisition, construction, completion, improvement, or reconstruction of any facility or any part thereof, and reimbursement of advances by the commission or by others for such purposes and for working capital.

13.3. Pledge of states’ credit, obligation to pay bonds; personal liability.—The commission shall have no power to pledge the credit of any signatory party or of any county or municipality, or to impose any obligation for payment of the bonds upon any signatory party or any county or municipality. Neither the commissioners nor any person executing the bonds shall be liable personally on the bonds of the commission or be subject to any personal liability or accountability by reason of the issuance thereof. 13.4. Funding and refunding.—Whenever the commission deems it expedient, it may fund and refund its bonds and other obligations, whether or not such bonds and obligations have matured. It may provide for the issuance, sale, or exchange of refunding bonds for the purpose of redeeming or retiring any bonds (including payment of any premium, duplicate interest, or cash adjustment required in connection therewith) issued by the commission or issued by any other issuing body, the proceeds of the sale of which have been applied to any facility acquired by the commission or which are payable out of the revenues of any facility acquired by the commission. Bonds may be issued partly to refund bonds and other obligations then outstanding, and partly for any other purpose of the commission. All provisions of this compact applicable to the issuance of bonds are applicable to refunding bonds and to the issuance, sale, or exchange thereof. 13.5. Authorization and issuance generally; redemption prior to maturity.—Bonds and other indebtedness of the commission shall be authorized by resolution of the commission. The validity of the authorization and issuance of any bonds by the commission shall not be dependent upon or affected in any way by: (1) the disposition of bond proceeds by the commission or by contract, commitment or action taken with respect to such proceeds; or (2) the failure to complete any part of the project for which bonds are authorized to be issued. The commission may issue bonds in one or more series and may provide for one or more consolidated bond issues, in such principal amounts and with such terms and provisions as the commission may deem necessary. The bonds may be secured by a pledge of all or any part of the property, revenues, and franchises under its control. Bonds may be issued by the commission in such amount, with such maturities and in such denominations and form or forms, whether coupon or registered, as to both principal and interest, as may be determined by the commission. The commission may provide for redemption of bonds prior to maturity on such notice and at such time or times and

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with such redemption provisions, including premiums, as the commission may determine. 13.6. Bond resolutions and indentures generally.—The commission may determine and enter into indentures providing for the principal amount, date or dates, maturities, interest rate, denominations, form, registration, transfer, interchange, and other provisions of the bonds and coupons and the terms and conditions upon which the same shall be executed, issued, secured, sold, paid, redeemed, funded, and refunded. The resolution of the commission authorizing any bond or any indenture so authorized under which the bonds are issued may include all such covenants and other provisions other than any restriction on the regulatory powers vested in the commission by this compact as the commission may deem necessary or desirable for the issue, payment, security, protection, or marketing of the bonds, including without limitation covenants and other provisions as to the rates or amounts of fees, rents, and other charges to be charged or made for use of the facilities; the use, pledge, custody, securing, application, and disposition of such revenues, of the proceeds of the bonds, and of any other moneys of the commission; the operation, maintenance, repair, and reconstruction of the facilities and the amounts which may be expended therefor; the sale, lease, or other disposition of the facilities; the insuring of the facilities and of the revenues derived therefrom; the construction or other acquisition of other facilities; the issuance of additional bonds or other indebtedness; the rights of the bondholders and of any trustee for the bondholders upon default by the commission or otherwise; and the modification of the provisions of the indenture and of the bonds. Reference on the face of the bonds to such resolution or indenture by its date of adoption or the apparent date on the face thereof is sufficient to incorporate all of the provisions thereof and of this compact into the body of the bonds and their appurtenant coupons. Each taker and subsequent holder of the bonds or coupons, whether the coupons are attached to or detached from the bonds, has recourse to all of the provisions of the indenture and of this compact and is bound thereby. 13.7. Maximum maturity.—No bond or its terms shall mature in more than fifty years from its own date, or on any date subsequent to the duration of this compact, and in the event any authorized issue is divided into two or more series or divisions, the maximum maturity date herein authorized shall be calculated from the date on the face of each bond separately, irrespective of the fact that different dates may be prescribed for the bonds of each separate series or division of any authorized issue. 13.8. Tax exemption.—All bonds issued by the commission under the provisions of this compact and the interest thereon shall at all times be free and exempt from all taxation by or under authority of any of the signatory parties, except for transfer, inheritance, and estate taxes.

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13.9. Interest.—Bonds shall bear interest at such rate as the commission determines payable annually or semiannually. 13.10. Place of payment.—The commission may provide for the payment of the principal and interest of bonds at any place or places within or without the signatory states, and in any specified lawful coin or currency of the United States of America. 13.11. Execution.—The commission may provide for the execution and authentication of bonds by the manual, lithographed, or printed facsimile signature of officers of the commission, and by additional authentication by a trustee or fiscal agent appointed by the commission. If any of the officers whose signatures or countersignatures appear upon the bonds or coupons ceases to be an officer before the delivery of the bonds or coupons, his signature or countersignature is nevertheless valid and of the same force and effect as if the officer had remained in office until the delivery of the bonds and coupons. 13.12. Holding own bonds.—The commission shall have power out of any funds available therefor to purchase its bonds and may hold, cancel, or resell such bonds. 13.13. Sale.—The commission may fix terms and conditions for the sale or other disposition of any authorized issue of bonds and may sell its bonds at less than their par or face value. All bonds issued and sold for cash pursuant to this compact shall be sold on sealed proposals to the highest bidder. Prior to such sale, the commission shall advertise for bids by publication of a notice of sale not less than ten days prior to the date of sale, at least once in a newspaper of general circulation printed and published in New York City carrying municipal bonds notices and devoted primarily to financial news. The commission may reject any and all bids submitted and may thereafter sell the bonds so advertised for sale at private sale to any financially responsible bidder under such terms and conditions as it deems most advantageous to the public interest, but the bonds shall not be sold at a net interest cost calculated upon the entire issue so advertised, greater than the lowest bid which was rejected. In the event the commission desires to issue its bonds in exchange for an existing facility or portion thereof, or in exchange for bonds secured by the revenues of an existing facility, it may exchange such bonds for the existing facility or portion thereof or for the bonds so secured, plus an additional amount of cash, without advertising such bonds for sale. 13.14. Negotiability.—All bonds issued under the provisions of this compact are negotiable instruments, except when registered in the name of a registered owner. 13.15. Legal investments.—Bonds of the commission shall be legal investments for savings banks, fiduciaries and public funds in each of the signatory states.

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13.16. Validation proceedings.—Prior to the issuance of any bonds, the commission may institute a special proceeding to determine the legality of proceedings to issue the bonds and their validity under the laws of any of the signatory parties. Such proceedings shall be instituted and prosecuted in rem, and the judgment rendered therein shall be conclusive against all persons whomsoever and against each of the signatory parties. 13.17. Recording.—No indenture need be recorded or filed in any public office, other than the office of the commission. The pledge of revenues provided in any indenture shall take effect forthwith as provided therein and irrespective of the date of receipts of such revenues by the commission or the indenture trustee. Such pledge shall be effective as provided in the indenture without physical delivery of the revenues to the commission or the indenture trustee. 13.18. Pledged revenues.—Bond redemption and interest payments, to the extent provided in the resolution or indenture, shall constitute a first, direct and exclusive charge and lien on all such rates, rents, tolls, fees, and charges and other revenues and interest thereon received from the use and operation of the facility, and on any sinking or other funds created therefrom. All such rates, rents, tolls, fees, charges and other revenues, together with interest thereon, shall constitute a trust fund for the security and payment of such bonds, and except as and to the extent provided in the indenture with respect to the payment therefrom of expenses for other purposes including administration, operation, maintenance, improvements, or extensions of the facilities or other purposes shall not be used or pledged for any other purpose so long as such bonds, or any of them, are outstanding, and unpaid. 13.19. Remedies.—The holder of any bond may for the equal benefit and protection of all holders of bonds similarly situated; (1) by mandamus or other appropriate proceedings require and compel the performance of any of the duties imposed upon the commission or assumed by it, its officers, agents, or employees under the provisions of any indenture, in connection with the acquisition, construction, operation, maintenance, repair, reconstruction, or insurance of the facilities, or in connection with the collection, deposit, investment, application, and disbursement of the rates, rents, tolls, fees, charges, and other revenues derived from the operation and use of the facilities, or in connection with the deposit, investment, and disbursement of the proceeds received from the sale of bonds; or (2) by action or suit in a court of competent jurisdiction of any signatory party require the commission to account as if it were the trustee of an express trust, or enjoin any acts or things which may be unlawful or in violation of the rights of the holders of the bonds. The enumeration of such rights and remedies, however, does not exclude the exercise or prosecution of any other rights or remedies available to the holders of bonds.

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13.20. Capital financing by signatory parties; guarantees.— (a) The signatory parties shall provide such capital funds required for projects of the commission as may be authorized by their respective statutes in accordance with a cost-sharing plan prepared pursuant to Article 12 of this compact; but nothing in this section shall be deemed to impose any mandatory obligation on any of the signatory parties other than such obligations as may be assumed by a signatory party in connection with a specific project or facility. (b) Bonds of the commission, notwithstanding any other provision of this compact, may be executed and delivered to any duly authorized agency of any of the signatory parties without public offering and may be sold and resold with or without the guaranty of such signatory party, subject to and in accordance with the constitutions of the respective signatory parties. (c) The commission may receive and accept, and the signatory parties may make, loans, grants, appropriations, advances, and payments of reimbursable or nonreimbursable funds or property in any form for the capital or operating purposes of the commission. ARTICLE 14 PLAN, PROGRAM AND BUDGETS 14.1. Comprehensive plan.—The commission shall develop and adopt, and may from time to time review and revise, a comprehensive plan for the immediate and long range development and use of the water resources of the basin. The plan shall include all public and private projects and facilities which are required, in the judgment of the commission, for the optimum planning, development, conservation, utilization, management, and control of the water resources of the basin to meet present and future needs. The commission may adopt a comprehensive plan or any revision thereof in such part or parts as it may deem appropriate, provided that before the adoption of the plan or any part or revision thereof the commission shall consult with water users and interested public bodies and public utilities and shall consider and give due regard to the findings and recommendations of the various agencies of the signatory parties, their political subdivisions, and interested groups. The commission shall conduct public hearings upon due notice given with respect to the comprehensive plan prior to the adoption of the plan or any part of the revision thereof, except that public and private projects and facilities which, in the judgment of the commission, are not required for the optimum planning, development, conservation, utilization, management, and control of the water resources of the basin and which, in the judgment of the commission,

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will not significantly affect the water resources of the basin, may be added directly to the comprehensive plan at any time at the discretion of the commission without public hearing thereon. The comprehensive plan shall take into consideration the effect of the plan or any part thereof upon the receiving waters of Chesapeake Bay. 14.2. Water resources program.—The commission shall annually adopt a water resources program, based upon the comprehensive plan, consisting of the projects and facilities which the commission proposes to be undertaken by the commission and by other authorized governmental and private agencies, organizations, and persons during the ensuing six years or such other reasonably foreseeable period as the commission may determine. The water resources program shall include a systematic presentation of: 1. The quantity and quality of water resources needs for such period; 2. The existing and proposed projects and facilities required to satisfy such needs, including all public and private projects to be anticipated; and 3. A separate statement of the projects proposed to be undertaken by the commission during such period. 14.3. Annual current expense and capital budgets.— (a) The commission shall annually adopt a capital budget including all capital projects it proposes to undertake or continue during the budget period containing a statement of the estimated cost of each project and the method of financing thereof. (b) The commission shall annually adopt a current expense budget for each fiscal year. Such budget shall include the commission’s estimated expenses for administration, operation, maintenance, and repairs, including a separate statement thereof for each project, together with its cost allocation. The total of such expenses shall be balanced by the commission’s estimated revenues from all sources, including the cost allocations undertaken by any of the signatory parties in connection with any project. Following the adoption of the annual current expense budget by the commission, the executive director of the commission shall: 1. Certify to the respective signatory parties the amounts due in accordance with existing cost sharing established for each project; and 2. Transmit certified copies of such budget to the principal budget officer of the respective signatory parties at such time and in such manner as may be required under their respective budgetary procedures. The amount required to balance the current expense budget

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Appendix B in addition to the aggregate amount of item 1 above and all other revenues available to the commission shall be apportioned equitably among the signatory parties by unanimous vote of the commission, and the amount of such apportionment to each signatory party shall be certified together with the budget.

(c) The respective signatory parties covenant and agree to include the amounts so apportioned for the support of the current expense budget in their respective budgets next to be adopted, subject to such review and approval as may be required by their respective budgetary processes. Such amounts shall be due and payable to the commission in quarterly installments during its fiscal year, provided that the commission may draw upon its working capital to finance its current expense budget pending remittance by the signatory parties. ARTICLE 15 GENERAL PROVISIONS 15.1. Auxiliary powers of commission; functions of commissioners.— (a) The commission, for the purposes of this compact, may: 1. Adopt and use a corporate seal, enter into contracts, and sue and be sued in any court of competent jurisdiction; 2. Receive and accept such payments, appropriations, grants, gifts, loans, advances, and other funds, properties, and services as may be transferred or made available to it by any signatory party or by any other public or private corporation or individual, and enter into agreements to make reimbursement for all or part thereof; 3. Provide for, acquire, and adopt detailed engineering, administrative, financial, and operating plans and specifications to effectuate, maintain, or develop any facility or project; 4. Control and regulate the use of facilities owned or operated by the commission; 5. Acquire, own, operate, maintain, control, sell and convey real and personal property and any interest therein by contract, purchase, lease, license, mortgage, or otherwise as it may deem necessary for any project or facility, including any and all appurtenances thereto necessary, useful, or convenient for such ownership, operation, control, maintenance, or conveyance; 6. Have and exercise all corporate powers essential to the declared objects and purposes of the commission.

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(b) The commissioners, subject to the provisions of this compact, shall: 1. Serve as the governing body of the commission, and exercise and discharge its powers and duties, except as otherwise provided by or pursuant to this compact; 2. Determine the character of and the necessity for its obligations and expenditures and the manner in which they shall be incurred, allowed, and paid subject to any provisions of law specifically applicable to agencies or instrumentalities created by this compact; 3. Provide for the internal organization and administration of the commission; 4. Appoint the principal officers of the commission and delegate to and allocate among them administrative functions, powers and duties; 5. Create and abolish offices, employments, and positions as it deems necessary for the purposes of the commission, and subject to the provisions of this article, fix and provide for the qualification, appointments, removal, term, tenure, compensation, pension, and retirement rights of its officers and employees; 6. Let and execute contracts to carry out the powers of the commission. 15.2. Regulations; enforcement.—The commission may: 1. Make and enforce rules and regulations for the effectuation, application, and enforcement of this compact; and it may adopt and enforce practices and schedules for or in connection with the use, maintenance, and administration of projects and facilities it may own or operate and any product or service rendered thereby; provided that any rule or regulation, other than one which deals solely with the internal management of the commission, shall not be effective unless and until filed in accordance with the law of the respective signatory parties applicable to administrative rules and regulations generally; and 2. Designate any officer, agent, or employee of the commission to be an investigator or watchman and such person shall be vested with the powers of a peace officer of the state in which he is duly assigned to perform his duties. 15.3. Tax exemptions.—The commission, its property, functions, and activities shall be exempt from taxation by or under the authority of any of the signatory parties or any political subdivision thereof; provided that in lieu of property taxes the commission, as to its specific projects, shall make payments to local taxing

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Appendix B districts in annual amounts which shall equal the taxes lawfully assessed upon property for the tax year next prior to its acquisition by the commission for a period of ten years. The nature and amount of such payments shall be reviewed by the commission at the end of ten years, and from time to time thereafter, upon reasonable notice and opportunity to be heard to the affected taxing district, and the payments may be thereupon terminated or continued in such reasonable amount as may be necessary or desirable to take into account hardships incurred and benefits received by the taxing jurisdiction which are attributable to the project.

15.4. Meetings; public hearings; records; minutes.— (a) All meetings of the commission shall be open to the public. (b) The commission shall conduct at least one public hearing in each state prior to the adoption of the initial comprehensive plan. In all other cases wherein this compact requires a public hearing, such hearing shall be held upon not less than twenty days’ public notice given by posting at the offices of the commission, and published at least once in a newspaper or newspapers of general circulation in the area or areas affected. The commission shall also provide forthwith for distribution of such notice to the press and by the mailing of a copy thereof to any person who shall request such notices. (c) The minutes of the commission shall be a public record open to inspection at its offices during regular business hours. 15.5. Officers generally.— (a) The officers of the commission shall consist of an executive director and such additional officers, deputies, and assistants as the commission may determine. The executive director shall be appointed and may be removed by the affirmative vote of a majority of the full membership of the commission. All other officers and employees shall be appointed or dismissed by the executive director under such rules of procedure as the commission may establish. (b) In the appointment and promotion of officers and employees for the commission, no political, racial, religious, or residence test or qualification shall be permitted or given consideration, but all such appointments and promotions shall be solely on the basis of merit and fitness. Any officer or employee of the commission who is found by the commission to be guilty of a violation of this section shall be immediately dismissed. 15.6. Oath of office.—An oath of office in such form as the commission shall prescribe shall be taken, subscribed, and filed with the commission by the executive director and by each officer appointed by him not later than fifteen days after the appointment.

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15.7. Bond.—Each officer shall give such bond and in such form and amount as the commission may require, for which the commission shall pay the premium. 15.8. Prohibited activities.— (a) No commissioner, officer or employee shall: 1. Be financially interested, either directly or indirectly, in any contract, sale, purchase, lease, or transfer of real or personal property to which the commission is a party; 2. Solicit or accept money or any other thing of value in addition to the compensation or expense paid him by the commission for services performed within the scope of his official duties; 3. Offer money or any thing of value for or in consideration of obtaining an appointment, promotion, or privilege in his employment with the commission. (b) Any officer or employee who willfully violates any of the provisions of this section shall forfeit his office or employment. (c) Any contract or agreement knowingly made in contravention of this section is void. (d) Officers and employees of the commission shall be subject, in addition to the provisions of this section, to such criminal and civil sanctions for misconduct in office as may be imposed by federal law and the law of the signatory state in which such misconduct occurs. 15.9. Purchasing.—Contracts for the construction, reconstruction or improvement of any facility when the expenditure required exceeds ten thousand dollars, and contracts for the purchase of services, supplies, equipment, and materials when the expenditure required exceeds five thousand dollars shall be advertised and let upon sealed bids to the lowest responsible bidder. Notice requesting such bids shall be published in a manner reasonably likely to attract prospective bidders, which publication shall be made at least thirty days before bids are received and in at least two newspapers of general circulation in the basin. The commission may reject any and all bids and readvertise in its discretion. If after rejecting bids the commission determines and resolves that in its opinion the supplies, equipment, and materials may be purchased at a lower price in the open market, the commission may give each responsible bidder an opportunity to negotiate a price and may proceed to purchase the supplies, equipment, and materials in the open market at a negotiated price which is lower than the lowest rejected bid of a responsible bidder, without further observance of the provisions requiring bids or notice. The commission

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Appendix B shall adopt rules and regulations to provide for purchasing from the lowest responsible bidder when sealed bids, notice, and publication are not required by this section. The commission may suspend and waive the provisions of this section requiring competitive bids whenever:

1. The purchase is to be made from or the contract to be made with the federal or any state government or any agency or political subdivision thereof or pursuant to any open and bulk purchase contract of any of them; 2. The public exigency requires the immediate delivery of the articles or performance of the service; 3. Only one source of supply is available; 4. The equipment to be purchased is of a technical nature and the procurement thereof without advertising is necessary in order to assure standardization of equipment and interchangeability of parts in the public interest; or 5. Services are to be provided of a specialized or professional nature. 15.10. Insurance.—The commission may self-insure or purchase insurance and pay the premiums therefor against loss or damage to any of its properties; against liability for injury to persons or property; and against loss of revenue from any cause whatsoever. Such insurance coverage shall be in such form and amount as the commission may determine, subject to the requirements of any agreement arising out of the issuance of bonds by the commission. 15.11. Annual independent audit.— (a) As soon as practical after the closing of the fiscal year an audit shall be made of the financial accounts of the commission. The audit shall be made by qualified certified public accountants selected by the commission, who have no personal interest direct or indirect in the financial affairs of the commission or any of its officers or employees. The report of audit shall be prepared in accordance with accepted accounting practices and shall be filed with the chairman and such other officers as the commission shall direct. Copies of the report shall be distributed to each commissioner and shall be made available for public distribution. (b) Each signatory party by its duly authorized officers shall be entitled to examine and audit at any time all of the books, documents, records, files, and accounts and all other papers, things, or property of the commission. The representatives of the signatory parties shall have access to all books, documents, records, accounts, reports, files, and all other papers, things, or property belonging to or in use by the commission and

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necessary to facilitate the audit and they shall be afforded full facilities for verifying transactions with the balances or securities held by depositaries, fiscal agents, and custodians. (c) The financial transactions of the commission shall be subject to audit by the General Accounting Office in accordance with the principles and procedures applicable to commercial corporate transactions and under such rules and regulations as may be prescribed by the Comptroller General of the United States. The audit shall be conducted at the place or places where the accounts of the commission are kept. (d) Any officer or employee who shall refuse to give all required assistance and information to the accountants selected by the commission or to the authorized officers of any signatory party or who shall refuse to submit to them for examination such books, documents, records, files, accounts, papers, things, or property as may be requested shall forfeit his office. 15.12. Reports.—The commission shall make and publish an annual report to the legislative bodies of the signatory parties and to the public reporting on its programs, operations, and finances. It may also prepare, publish, and distribute such other public reports and informational materials as it may deem necessary or desirable. 15.13. Grants, loans, or payments by states or political subdivisions.— (a) Any or all of the signatory parties or any political subdivision thereof may: 1. Appropriate to the commission such funds as may be necessary to pay preliminary expenses such as the expenses incurred in the making of borings, and other studies of subsurface conditions, in the preparation of contracts for the sale of water and in the preparation of detailed plans and estimates required for the financing of a project; 2. Advance to the commission, either as grants or loans, such funds as may be necessary or convenient to finance the operation and management of or construction by the commission of any facility or project; 3. Make payments to the commission for benefits received or to be received from the operation of any of the projects or facilities of the commission. (b) Any funds which may be loaned to the commission either by a signatory party or a political subdivision thereof shall be repaid by the commission through the issuance of bonds or out of other income of the commission, such repayment to be made within such period and upon such terms as

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Appendix B may be agreed upon between the commission and the signatory party or political subdivision making the loan.

15.14. Condemnation proceedings.— (a) The commission shall have the power to acquire by condemnation the fee or any lesser interest in lands, lands lying under water, development rights in land, riparian rights, water rights, waters and other real or personal property within the basin for any project or facility authorized pursuant to this compact. This grant of power of eminent domain includes but is not limited to the power to condemn for the purposes of this compact any property already devoted to a public use, by whomsoever owned or held, other than property of a signatory party. Any condemnation of any property or franchises owned or used by a municipal or privately owned public utility, unless the affected public utility facility is to be relocated or replaced, shall be subject to the authority of such state board, commission, or other body as may have regulatory jurisdiction over such public utility. (b) The power of condemnation referred to in subsection (a) shall be exercised in accordance with the provisions of the state condemnation law in force in the signatory state in which the property is located. If there is no applicable state condemnation law, the power of condemnation shall be exercised in accordance with the provisions of federal condemnation law. (c) Any award or compensation for the taking of property pursuant to this article shall be paid by the commission, and none of the signatory parties nor any other agency, instrumentality or political subdivision thereof shall be liable for such award or compensation. 15.15. Conveyance of lands and relocation of public facilities.— (a) The respective officers, agencies, departments, commissions, or bodies having jurisdiction and control over real and personal property owned by the signatory parties are authorized and empowered to transfer and convey in accordance with the laws of the respective parties to the commission any such property as may be necessary or convenient to the effectuation of the authorized purposes of the commission. (b) Each political subdivision of each of the signatory parties, notwithstanding any contrary provisions of law, is authorized and empowered to grant and convey to the commission, upon the commission’s request, any real property or any interest therein owned by such political subdivision including lands lying under water and lands already devoted to public use which may be necessary or convenient to the effectuation of the authorized purposes of the commission.

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(c) Any highway, public utility, or other public facility which will be dislocated by reason of a project deemed necessary by the commission to effectuate the authorized purposes of this compact shall be relocated and the cost thereof shall be paid in accordance with the law of the state in which the facility is located; provided that the cost of such relocation payable by the commission shall not in any event exceed the expenditure required to serve the public convenience and necessity. 15.16. Rights-of-way.—Permission is hereby granted to the commission to locate, construct, and maintain any aqueducts, lines, pipes, conduits, and auxiliary facilities authorized to be acquired, constructed, owned, operated, or maintained by the commission in, over, under, or across any streets and highways now or hereafter owned, opened, or dedicated to or for public use, subject to such reasonable conditions as the highway department of the signatory party may require. 15.17. Penalty.—Any person, association, or corporation who violates or attempts or conspires to violate any provisions of this compact or any rule, regulation, or order of the commission duly made, promulgated, or issued pursuant to the compact in addition to any other remedy, penalty, or consequence provided by law shall be punishable as may be provided by statute of any of the signatory parties within which the violation is committed; provided that in the absence of such provision any such person, association, or corporation shall be liable to a penalty of not less than $50 nor more than $1,000 for each such violation to be fixed by the court which the commission may recover in its own name in any court of competent jurisdiction, and in a summary proceeding where available under the practice and procedure of such court. For the purposes of this section in the event of a continuing offense each day of such violation, attempt or conspiracy shall constitute a separate offense. 15.18. Tort liability.—The commission shall be responsible for claims arising out of the negligent acts or omissions of its officers, agents, and employees only to the extent and subject to the procedures prescribed by law generally with respect to officers, agents, and employees of the government of the United States. 15.19. Effect on riparian rights.—Nothing contained in this compact shall be construed as affecting or intending to affect or in any way to interfere with the law of the respective signatory parties relating to riparian rights. 15.20. Amendments and supplements.—Amendments and supplements to this compact to implement the purposes thereof may be adopted by legislative action of any of the signatory parties concurred in by all of the others. 15.21. Construction and severability.—The provisions of this compact and of agreements thereunder shall be severable and if any phrase, clause, sentence, or

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Appendix B provision of the Susquehanna River Basin Compact or such agreement is declared to be unconstitutional or the applicability thereof to any signatory party, agency, or person is held invalid, the constitutionality of the remainder of such compact or such agreement and the applicability thereof to any other signatory party, agency, person, or circumstance shall not be affected thereby. It is the legislative intent that the provisions of such compact be reasonably and liberally construed.

15.22. Effective date; execution.—This compact shall become binding and effective thirty days after the enactment of concurring legislation by the federal government, the states of Maryland and New York, and the Commonwealth of Pennsylvania. The compact shall be signed and sealed in five identical original copies by the respective chief executives of the signatory parties. One such copy shall be filed with the secretary of state of each of the signatory parties or in accordance with the laws of the state in which the filing is made, and one copy shall be filed and retained in the archives of the commission upon its organization.

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Appendix B-34: Tennessee River Basin Water Pollution Control Compact* Public Law No. 85–734 72 Statutes at Large 823 (1958)

ARTICLE I The purpose of this Compact is to promote effective control and reduction of pollution in the waters of the Tennessee River Basin through increased cooperation of the states of the Basin, coordination of pollution control activities and programs in the Basin, and the establishment of a joint interstate commission to assist in these efforts. ARTICLE II The party states hereby create the “Tennessee River Basin Water Pollution Control Commission,” hereinafter referred to as the “Commission,” which shall be an agency of each party state with the powers and duties set forth herein, and such others as shall be conferred upon it by the party states or by the Congress of the United States concurred in by the party states. ARTICLE III A. The party states hereby create the “Tennessee River Basin Water Pollution Control District,” hereinafter called the “District,” which consists of the area drained by the Tennessee River and its tributaries. B. From time to time the Commission may conduct surveys of the Basin, study the pollution problems of the Basin, and make comprehensive reports concerning the prevention or reduction of water pollution therein. The Commission may draft and recommend to the parties hereto suggested legislation dealing with the pollution of waters within the Basin or any portion thereof. Upon request of a state water pollution control agency, and in a manner agreed upon by such agency and the Commission, the Commission shall render advice concerning the various governments, communities, municipalities, persons, corporations or other entities with regard to particular problems connected with the pollution of waters. The Commission shall present to the appropriate officials of any government or agency thereof its recommendations relating to enactments to be made by any legislature in furthering the intents and purposes of this Article. The Commission, upon request of a member state or upon its own instance may, after proper study, and after conducting public

* Note: Records maintained by the Council of State Governments indicate that this compact may be dormant or defunct. See http://ssl.csg.org/compactlaws/dormant.html.

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Appendix B hearings, recommend minimum standards of water quality to be followed in the several areas of the District.

ARTICLE IV The Commission shall consist of three Commissioners from each state, each of whom shall be a resident voter of such state. The Commissioners shall be chosen in the manner and for the terms provided by the laws of the state from which they are appointed, and each Commissioner may be removed or suspended from office as provided by the law of the state from which he is appointed. ARTICLE V A. The Commission shall elect annually from its members a Chairman and a Vice Chairman to serve at its pleasure. It shall adopt a seal and suitable bylaws for its management and control. The Commission is hereby authorized to adopt, prescribe and promulgate rules and regulations for administering and enforcing all provisions of this Compact. It may maintain one or more offices for the transaction of its business. Meetings shall be held at least once each year. It may determine duties, qualifications and compensation for and appoint such employees and consultants as may be necessary and remove or replace them. B. The Commission shall not compensate the Commissioners for their services but shall pay their actual expenses incurred in and incidental to the performance of their duties. C. The Commission may acquire, by gift or otherwise, and may hold and dispose of such real and personal property as may be appropriate to the performance of its functions. In the event of sale of real property, proceeds may be distributed among the several party states, each state’s share being computed in a ratio to its contributions; and in the event of dissolution of the Commission, the property and assets shall be disposed of and proceeds distributed in a like manner. D. Each Commissioner shall have one vote. One or more Commissioners from a majority of the party states shall constitute a quorum for the transaction of business, but no action of the Commission imposing any obligation on any party state or any municipality, person, corporation or other entity therein shall be binding unless a majority of all of the members from such party state shall have voted in favor thereof. The Commission shall keep accurate accounts of all receipts and disbursements, and shall submit to the Governor and the legislature of each party state an annual report concerning its activities, and shall make recommendations for any legislative, executive or administrative action deemed advisable.

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E. The Commission shall at the proper time submit to the Governor of each party state for his approval an estimate of its proposed expenditures. The Commission shall subsequently adopt a budget and submit appropriation requests to the party states in accordance with the laws and procedures of such states. F. The Commission shall not pledge the credit of any of the party states. The Commission may meet any of its obligations in whole or in part with funds available to it, from gifts, grants, appropriations or otherwise, provided that the Commission takes specific action setting aside such funds prior to the incurring of any obligation to be met in whole or in part in this manner. Except where the Commission makes use of funds already available to it, the Commission shall not incur any obligations prior to the making of appropriations adequate to meet the same. G. The accounts of the Commission shall be open at any reasonable time to the inspection of such representatives of the respective party states as may be duly constituted for that purpose. All receipts and disbursements of funds handled by the Commission shall be audited yearly by a qualified public accountant, and the report of the audit shall be included in and become a part of the annual report of the Commission. The Commission shall appoint an Executive Director. The Commission shall also appoint a Treasurer who may be a member of the Commission. The Executive Director shall be custodian of the records of the Commission with authority to attest to and certify such records and copies thereof under the seal of the Commission. The Commission shall require bonds of its Executive Director and Treasurer in the amount of at least twenty-five percent (25%) of the annual budget of the Commission. ARTICLE VI Each of the Commission’s budgets of estimated expenditures shall contain specific recommendations of the amount or amounts to be appropriated by each of the party states. In determining these amounts, the Commission shall prorate one-half (1/2) of its budget among the several states in proportion to their land area within the District, and shall prorate the other half among the several states in proportion to their population within the District at the last preceding Federal census. ARTICLE VII A. It is recognized, owing to such variable factors as location, size, character and flow and the many varied uses of the waters subject to the terms of this Compact, that no single standard of sewage and waste treatment and no single standard of quality of receiving waters is practical and that the degree

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B. The Commission may establish reasonable physical, chemical and bacteriological standards of water quality satisfactory for various classifications of use. It is agreed that each of the signatory states through appropriate agencies will prepare a classification of its interstate waters in the District in entirety or by portions according to present and proposed highest use, and for this purpose technical experts employed by appropriate state water pollution control agencies are authorized to confer on questions relating to classification of interstate waters affecting two (2) or more states. Each signatory state agrees to submit its classification of its interstate waters to the Commission for approval. It is agreed that after such approval, all signatory states through their appropriate state water pollution control agencies will work to establish programs of treatment of sewage and industrial wastes which will meet standards established by the Commission for classified waters. The Commission may from time to time make such changes in definitions of classifications and in standards as may be required by changed conditions or as may be necessary for uniformity and in a manner similar to that in which these standards and classifications were originally established. ARTICLE VIII A. A state pollution control agency of any party state may certify to the Commission an alleged violation of the Commission’s standards of quality of water entering said state. Upon such certification the Commission may call a hearing at which the appropriate state pollution agencies shall be represented. If the Commission finds a violation has occurred, is occurring or is likely to recur, it shall make recommendations as to the manner of abatement of the pollution to the appropriate water pollution control agency of the party state within which the violation has occurred, is occurring or is likely to recur. In the event that Commission recommendations made pursuant to the preceding provisions of this Article do not result in compliance within a reasonable time, the Commission may, after such further investigation if any as is deemed necessary and proper and after hearing held in the state where a violation occurs or has occurred, issue an order or orders upon any municipality, person, corporation or other entity within said party state violating provisions of this Compact by discharging sewerage or industrial wastes into the waters of the District which flow through, into or border upon any party state. Such order

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or orders may prescribe the date on or before which such discharge shall be wholly or partially discontinued, modified or treated or otherwise disposed of. The Commission shall give reasonable and proper notice in writing of the time and place of the hearing to the municipality, person, corporation or other entity against which such order is proposed except that when the Commission shall find that a public health emergency exists, it may issue such an order pending hearing. In all such instances, the hearing shall be promptly held and the order shall be withdrawn, modified or made permanent within thirty days after hearing. No order prescribing the date on or before which such discharge shall be wholly or partially discontinued, modified or treated or otherwise disposed of shall go into effect upon a municipality, person, corporation or other entity in any state unless and until it receives the approval of a majority of the Commissioners from each of not less than a majority of the party states, provided that such order receives the assent of not less than a majority of the Commissioners from such state. B. It shall be the duty of the municipality, person, corporation or other entity within a party state to comply with any such order against it or him by the Commission, and any court of competent jurisdiction in any of the party states shall have jurisdiction, by mandamus, injunction, specific performance or other form of remedy, to enforce any such order against any municipality, person, corporation or other entity domiciled, located or doing business within such state; provided, however, such court may review the order and affirm, reverse or modify the same in any appropriate proceeding brought and upon any of the grounds customarily applicable in proceedings for court review of administrative decisions. The Commission or, at its request, the Attorney General or other law enforcing official of the appropriate state shall have power to institute in such court any action for the enforcement of such order. ARTICLE IX Nothing in this Compact shall be construed to limit the powers of any party state, or to repeal or prevent the enactment of any legislation, or the enforcement of any requirement by any party state, imposing any additional conditions and restrictions to further reduce or prevent the pollution of waters within its jurisdiction. ARTICLE X A. Nothing contained in this Compact shall be construed so as to conflict with any provision of the Ohio River Valley Water Sanitation Compact or to impose obligations on any state inconsistent with those which it has undertaken or may undertake by virtue of its membership in said Compact; provided that nothing contained in this Article shall be deemed to limit the Commission’s

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Appendix B power to set higher standards for the waters of the Tennessee River Basin Water Pollution Control District or any portion thereof than those required for the Ohio River Valley Water Sanitation District.

B. Nothing contained in this Compact shall be deemed to give the Commission any regulatory power or jurisdiction over any aspect of pollution abatement or control within the District unless existing or future pollution of such waters does or is likely to affect adversely the quality of water flowing among, between, into or through the territory of more than one party state. ARTICLE XI Any two (2) or more of the party states by legislative action may enter into supplementary agreements for further regulation and abatement of water pollution in other areas within the party states and for the establishment of common or joint services or facilities for such purpose and designate the Commission to act as their joint agency in regard thereto. Except in those cases where all member states join in such supplementary agreement and designation, the representatives in the Commission of any group of such designating states shall constitute a separate section of the Commission for the performance of the function or functions so designated and with such voting rights for these purposes as may be stipulated in such agreement; provided that, if any additional expense is involved, the member states so acting shall appropriate the necessary funds for this purpose. No supplementary agreement shall be valid to the extent that it conflicts with the purposes of this Compact and the creation of such a section as a joint agency shall not affect the privileges, powers, responsibilities or duties of the member states participating therein as embodied in the other articles of this Compact. ARTICLE XII This Compact shall enter into force and become effective and binding when it has been enacted by the legislature of Tennessee and by the legislatures of any one or more of the states of Alabama, Georgia, Kentucky, Mississippi, North Carolina and Virginia and upon approval by the Congress of the United States and thereafter shall enter into force and become effective and binding as to any other of said states when enacted by the legislature thereof. ARTICLE XIII This Compact shall continue in force and remain binding upon each party state until renounced by act of the legislature of such state, in such form and manner as it may choose; provided that such renunciation shall not become effective until six (6) months after the effective date of the action taken by the legislature. Notice of such renunciation shall be given to the other party states by the Secretary of State

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of the party state so renouncing upon passage of the act. ARTICLE XIV The provisions of this Compact or of agreements thereunder shall be severable and if any phrase, clause, sentence or provision of this Compact, or such agreement, is declared to be contrary to the Constitution of any participating state or of the United States or the applicability thereof to any state, agency, person or circumstance is held invalid, the constitutionality of the remainder of this Compact or of any agreement thereunder and the applicability thereof to any state, agency, person or circumstance shall not be affected thereby, provided further that if this Compact or any agreement thereunder shall be held contrary to the Constitution of the United States or of any state participating therein, the Compact or any agreement thereunder shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters. It is the legislative intent that the provisions of this Compact shall be reasonably and liberally construed.

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Appendix B-35: Thames River Valley Flood Control Compact Public Law No. 85–526 72 Statutes at Large 364 (1958)

ARTICLE I The principal purposes of this compact are: (a) To promote interstate comity among and between the signatory states; (b) to assure adequate storage capacity for impounding the waters of the Thames River and its tributaries for the protection of life and property from floods; (c) to provide a joint or common agency through which the signatory states, while promoting, protecting and preserving to each the local interest and sovereignty of the respective signatory states, may more effectively cooperate in accomplishing the object of flood control and water resources utilization in the basin of the Thames River and its tributaries. ARTICLE II There is hereby created “The Thames River Valley Flood Control Commission,” hereinafter referred to as the “commission,” which shall consist of six members, three of whom shall be residents of the Commonwealth of Massachusetts; three of whom shall be residents of the State of Connecticut. The members of the commission shall be chosen by their respective states in such manner and for such terms as may be fixed and determined from time to time by the law of each of said states respectively by which they are appointed. A member of the commission may be removed or suspended from office as provided by the law of the state for which he shall be appointed, and any vacancy occurring in the commission shall be filled in accordance with the laws of the state wherein such vacancy exists. A majority of the members from each state shall constitute a quorum for the transaction of business, the exercise of any of its powers or the performance of any of its duties, but no action of the commission shall be binding unless at least two of the members from each state shall vote in favor thereof. The compensation of members of the commission shall be fixed, determined, and paid by the state which they respectively represent. All necessary expenses incurred in the performance of their duties shall be paid from the funds of the commission. The commission shall elect from its members a chairman, vice-chairman, and a clerk-treasurer. Such clerk-treasurer shall furnish to the commission, at its expense, a bond with corporate surety, to be approved by the commission, in such amount as the commission may determine, conditioned for the faithful performance of his duties. The commission shall adopt suitable bylaws and shall make such rules and regulations as it may deem advisable not inconsistent with laws of the United States, of the signatory states or with any rules or regulations lawfully promulgated thereunder. The commission shall make an annual report to the governor and legislature of each of the signatory states, setting forth in detail the operations and the transactions conducted by it

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pursuant to this compact. The commission shall keep a record of all its meetings and proceedings, contracts and accounts, and shall maintain a suitable office, where its maps, plans, documents, records and accounts shall be kept, subject to public inspection at such times and under such regulations as the commission shall determine. ARTICLE III The commission shall constitute a body, both corporate and politic, with full power and authority: (1) To sue and be sued; (2) To have a seal and alter the same at pleasure; (3) To appoint and employ such agents and employees as may be required in the proper performance of the duties hereby committed to it and to fix and determine their qualifications, duties and compensation; (4) To enter into such contracts and agreements and to do and perform any and all other acts, matters and things as may be necessary and essential to the full and complete performance of the powers and duties hereby committed to and imposed upon it and as may be incidental thereto; (5) To have such additional powers and duties as may hereafter be delegated to or imposed upon it from time to time by the action of the legislature of either of said states, concurred in by the legislature of the other state and by the Congress of the United States. The commission shall make, or cause to be made, such studies as it may deem necessary, in cooperation with the Corps of Engineers, United States Army, and other federal agencies, for the development of a comprehensive plan for flood control and for utilization of the water resources of the Thames River Valley. The commission shall not pledge the credit of the signatory states or either of them. ARTICLE IV The Commonwealth of Massachusetts wherein is located the site of each of the following dams and reservoirs agrees to the construction by the United States of each such dam and reservoir in accordance with authorization by the Congress: (1) At East Brimfield on the Quinebaug River controlling a drainage area of approximately sixty-seven (67) square miles and providing flood storage of approximately eight (8) inches of runoff from said drainage area. (2) At Buffumville on the Little River controlling a net drainage area of approximately twenty-six (26) square miles and providing flood control storage of approximately eight (8) inches of runoff from said drainage area. (3) At Hodges Village on the French River controlling a drainage area of approximately thirty (30) square miles and providing flood control storage for approximately eight (8) inches of runoff from said drainage area. (4) At Westville on the Quinebaug River controlling a drainage area of approximately ninety (90) square miles and providing flood control storage for approximately two and five tenths (2.5) inches of runoff from said drainage area.

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ARTICLE V The State of Connecticut agrees to reimburse the Commonwealth of Massachusetts forty (40) per cent of the amount of taxes lost to their political subdivisions by reason of acquisition and ownership by the United States of lands, rights or other property therein for construction in the future of any flood control dam and reservoir specified in Article IV and also for any other flood control dam and reservoir hereafter constructed by the United States in the Thames River Valley in Massachusetts. Annually, not later than November first of each year, the commission shall determine the loss of taxes resulting to political subdivisions of the Commonwealth of Massachusetts by reason of acquisition and ownership therein by the United States of lands, rights or other property in connection with each flood control dam and reservoir for which provision for tax reimbursement has been made in the paragraph next above. Such losses of taxes as determined by the commission shall be based on the tax rate then current in each such political subdivision and on the average assessed valuation for a period of five years prior to the acquisition by the United States of the site of the dam for such reservoir, provided that whenever a political subdivision wherein a flood control dam and reservoir or portion thereof is located shall have made a general revaluation of property subject to the annual municipal taxes of such subdivisions, the commission may use such revaluation for the purpose of determining the amount of taxes for which reimbursement shall be made. Using the percentage of payment agreed to in this Article, the commission shall then compute the sum, if any, due from the State of Connecticut to the Commonwealth of Massachusetts and shall send a notice to the treasurer of each signatory state setting forth in detail the sum, if any, Connecticut is to pay and Massachusetts is to receive in reimbursement of tax losses. The State of Connecticut on receipt of formal notification from the commission of the sum which it is to pay in reimbursement for tax losses shall, not later than July first of the following year, make its payment for such tax losses to the Commonwealth of Massachusetts wherein such loss or losses occur, except that in case of the first annual payment for tax losses at any dam or reservoir such payment shall be made by the State of Connecticut not later than July first of the year in which the next regular session of its legislature is held. Payment by the State of Connecticut of its share of reimbursement for taxes in accordance with formal notification received from the commission shall be a complete and final discharge of all liability by the state to the Commonwealth of Massachusetts for each flood control dam and reservoir within that state for the time specified in such formal notification. The Commonwealth of Massachusetts shall have full responsibility for distributing or expending all such sums received, and no agency or political subdivision of the Commonwealth shall have any claim against the State of Connecticut or against the commission relative to tax losses covered by such payments. The two states may agree, through the commission, on a lump sum payment in lieu of annual payments and when such lump

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sum payment has been made and received, the requirement that the commission annually shall determine the tax losses, compute sums due and send notice thereof to the treasurer of each state shall no longer apply with respect to any flood control dam and reservoir for which lump sum payment has been made and received. On receipt of information from the Chief of Engineers, United States Army, that request is to be made for funds for the purpose of preparing detailed plans and specifications for any flood control dam and reservoir proposed to be constructed in the Thames River Valley in Massachusetts, including those specified in Article IV, the commission shall make an estimate of the amount of taxes which would be lost to the political subdivisions of that state by reason of acquisition and ownership by the United States of lands, rights or other property for the construction and operation of such flood control dam and reservoir and shall decide whether the flood control benefits to be derived from such flood control dam and reservoir, both by itself and as a unit of a comprehensive flood control plan, justifies, in the opinion of the commission, the assumption by Connecticut of the obligation to make reimbursement for loss of taxes. Such estimate and decision shall thereafter be reviewed by the commission at five-year intervals until such time as the United States shall have acquired title to the site of such flood control dam or plans for its construction are abandoned. The commission shall notify the governor, the members of the United States Senate and the members of the United States House of Representatives from each signatory state and the chief of engineers as to the commission’s decision and as to any change in such decision. On receipt of information from the Chief of Engineers that any flood control dam and reservoir is to be constructed, reconstructed, altered, or used for any purpose in addition to flood control, including those flood control dams and reservoirs heretofore constructed and those specified in Article IV, the commission shall make a separate estimate of the amount of taxes which would be lost to the political subdivisions of the Commonwealth of Massachusetts by reason of acquisition and ownership by the United States of lands, rights or other property for construction and operation of such dam and reservoir in excess of the estimated amount of taxes which would be lost if the dam were constructed and operated for flood control only and the commission shall decide the extent to which, in its opinion, the State of Connecticut would be justified in making reimbursement for loss of taxes in addition to reimbursement for such dam and reservoir if constructed and used for flood control only. Such estimate and decision shall thereafter be reviewed by the commission at five-year intervals until such time as such dam and reservoir shall be so constructed, reconstructed, altered or used or plans for such construction, reconstruction, alteration or use are abandoned. The commission shall notify the governor, the members of the United States Senate and the members of the United States House of Representatives from each signatory state as to the commission’s decision and as to any change in such decision. A signatory state may, in agreement with the commission and the Chief of Engineers, acquire title or option to acquire

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title to any or all lands, rights or other property required for any flood control dam and reservoir within its boundaries and transfer such titles or options to the United States. Whenever the fair cost to said signatory state for such titles or options, as determined by the commission, is greater than the amount received therefor from the United States, the State of Connecticut shall pay its share of such excess cost to said signatory state, such share to be determined by the commission. Whenever the commission shall not agree, within a reasonable time or within sixty days after a formal request from the governor of any signatory state, concerning reimbursement for loss of taxes at any flood control dam and reservoir heretofore or hereafter constructed by the United States in the Thames River Valley in Massachusetts, or concerning the extent, if any, to which reimbursement shall be made for additional loss of taxes caused by construction, reconstruction, alteration or use of any such dam for purposes other than flood control, the governor of each signatory state shall designate a person from his state as a member of a board of arbitration, hereinafter called the board, and the members so designated shall choose one additional member who shall be chairman of such board. Whenever the members appointed by the governors to such board shall not agree within sixty days on such additional member of the board, the governors of such signatory states shall jointly designate the additional member. The board shall by majority vote decide the question referred to it and shall do so in accordance with the provisions of this compact concerning such reimbursement. The decision of the board on each question referred to it concerning reimbursement for loss of taxes shall be binding on the commission and on each signatory state, notwithstanding any other provision of this compact. ARTICLE VI Nothing contained in this compact shall be construed as a limitation upon the authority of the United States. ARTICLE VII The signatory states agree to appropriate for compensation of agents and employees of the commission and for office, administration, travel and other expenses on recommendation of the commission subject to limitations as follows: The Commonwealth of Massachusetts obligates itself to not more than seven thousand ($7,000) dollars in any one year and the State of Connecticut obligates itself to not more than five thousand ($5,000) dollars in any one year. ARTICLE VIII Should any part of this compact be held to be contrary to the constitution of any signatory state or of the United States, all other parts thereof shall continue to be in full force and effect.

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ARTICLE IX This compact shall become operative and effective when ratified by the Commonwealth of Massachusetts and the State of Connecticut and approved by the Congress of the United States. Notice of ratification shall be given by the governor of each state to the governor of the other state and to the President of the United States, and the President of the United States is requested to give notice to the governors of each of the signatory states of approval by the Congress of the United States.

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Appendix B-36: Tri-State [Sanitation] Compact

Public Resolution No. 74–62 49 Statutes at Large 932 (1935) Whereas, The tremendous growth of population and the development of the territory surrounding and adjacent to the harbor of New York has resulted in recent years in an increasingly serious pollution of the harbor, coastal and tidal waters in such area and the tributary waters therein; and Whereas, Such pollution constitutes a grave menace to the health, welfare and recreational facilities of the people living in such area and is occasioning great economic loss; and Whereas, The control of future pollution and the abatement of existing pollution in the waters in such area is of prime importance to the people living in such area and can best be accomplished through the co-operation of the states of New Jersey and New York and Connecticut by and through a joint or common agency; Now, therefore, The state of New York and the state of New Jersey and the state of Connecticut do agree and are bound as follows: ARTICLE I 1. Each of the signatory states pledges each to the other faithful co-operation in the control of future pollution and agrees to provide for the abatement of existing pollution in the tidal and coastal waters in the adjacent portions of the signatory states defined herein as coming within the district, and consistent with such object, to enact adequate legislation which will enable each of the signatory states to put and maintain the waters thereof in a satisfactory sanitary condition and particularly to protect public health; to render safe such waters as are now used or may later become available for bathing and recreational purposes; to abate and eliminate such pollution as becomes obnoxious or causes a nuisance; to permit the maintenance of major fish life, shellfish and marine life in waters now available or that may by practicable means be made available for the development of such fish, shellfish or marine life; to prevent oil, grease or solids from being carried on the surface of the water; to prevent the formation of sludge deposits along the shores or in the waterways; and with the fulfillment of these objectives to abate and avoid incurring unnecessary economic loss by safeguarding the rights of the public in its varied legitimate uses of the waters of the district. ARTICLE II 1. To that end they do agree that there shall be created and they do hereby create a district to be known as the Interstate Environmental District (hereinafter

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referred to as the district) which shall embrace the territory described as follows: All of the coastal, estuarial and tidal waters within or covering portions of the signatory states as follows: (a) In Connecticut, Long Island sound and estuaries and tidal waters thereof between the easterly side of New Haven harbor at Morgan Point and the Connecticut-New York state boundary, and the Housatonic river up to the northerly boundary lines of the towns of Stratford and Milford. (b) In New York, all of the tidal waters of Greater New York city; including Kill Van Kull and Arthur Kill, Long Island Sound and the estuaries and tidal waters thereof between the New York city line and the New YorkConnecticut state boundary and between the New York city line and the easterly side of Port Jefferson harbor; the Atlantic ocean and the estuaries and tidal waters thereof between the New York city line and the easterly side of Fire Island inlet; and the Hudson river and estuaries and tidal waters thereof between the New York and New Jersey state boundary and the northerly line of Rockland county on the westerly side and between the northerly line of New York city and the northerly line of Westchester county on the easterly side of the river. (c) In New Jersey, the Hudson river and New York upper bay and estuaries and tidal waters thereof between the New York-New Jersey boundary and Constable Point on Constable Hook, the Kill Van Kull and Arthur Kill to the mouths of the rivers entering into the Kills; Newark bay and the estuaries thereof up to the mouth of the Passaic river; and up to the mouth of the Hackensack river; Raritan bay together with the Raritan river up to the Victory bridge on said river between Perth Amboy and South Amboy; together with the Cheesequake creek up to the New York and Long Branch Railroad bridge on said creek at Morgan; together with the Matawan creek up to the New York and Long Branch Railroad bridge on said creek at Matawan; Sandy Hook bay; together with the Shrewsbury river up to the passenger railroad bridge between Navesink Light and Highland Beach on said river. ARTICLE III 1. There is hereby created the Interstate Environmental Commission (hereinafter referred to as the commission) which shall be a body corporate and politic, having the powers, duties and jurisdiction herein enumerated and such other and additional powers as shall be conferred upon it by the act or

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Appendix B acts of a signatory state concurred in by the others and by the act or acts of congress when necessary.

ARTICLE IV 1. The commission shall consist of five commissioners from each state, each of whom shall be a resident voter of the state from which he is appointed. The commissioners shall be chosen in the manner and for the terms provided by law of the state from which they shall be appointed, and each commissioner may be removed or suspended from office as provided by the law of the state from which he shall be appointed. The commissioners shall serve without compensation, but shall be paid their actual expenses incurred and incident to the performance of their duties. ARTICLE V 1. The commission shall elect from its number a chairman and vice-chairman and shall appoint and at its pleasure remove or discharge such officers and legal, clerical, expert and other assistants as may be required to carry the provisions of this compact into effect, and shall fix and determine their duties, qualifications and compensations. It shall adopt a seal and suitable by-laws and shall promulgate rules and regulations for its management and control. It may maintain one or more offices for the transaction of its business and may meet at any time or place within the signatory states. A majority of the members from each state shall constitute a quorum for the transaction of business, the exercise of any powers, or the performance of any duties, but no action of the commission shall be binding unless at least three of the members from each state shall vote in favor thereof. The commission shall keep accurate accounts of all receipts and disbursements and shall make an annual report to the governor and the legislature of each state setting forth in detail the operations and transactions conducted by it pursuant to this compact, and shall make recommendations for any legislative action deemed by it advisable, including amendments to the statutes of the signatory states which may be necessary to carry out the intent and purpose of this compact, and changes in the district which concentration of population or other cause may require. The commission shall not incur any obligations for salaries, office or other administrative expenses prior to the making of appropriations adequate to meet the same; nor shall the commission pledge the credit of any of the signatory states except by and with the authority of the legislatures thereof. Each state reserves the right to provide hereafter by law for the examination and

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audit of the accounts of the commission by its comptroller or other official. The commissioners shall meet and organize within ten days after the effective date of this compact. ARTICLE VI 1. It is recognized by the signatory states that, where tidal waters are used for such varied purposes as bathing, navigation, shellfish culture, the development of fish life and the disposal of wastes, no single standard of purity is practicable in all parts of the district. In order to attain the objects of this compact, the commission, after proper study and after conducting public hearings upon due notice, shall group the designated waters of the district into classes. Where local conditions shall have changed in the future to such an extent that changes in classification become necessary, the commission may, after conducting public hearings upon due notice, adopt such changes. Two general classifications shall be used: (1) Class “A,” in which the designated water areas are expected to be used primarily for recreational purposes, shellfish culture or the development of fish life; (2) Class “B,” in which the designated water areas are not expected to be used primarily for recreational purposes, shellfish culture or the development of fish life. ARTICLE VII 1. It is agreed between the signatory states that no sewage or other polluting matters shall be discharged or permitted to flow into, or be placed in, or permitted to fall or move into the tidal waters of the district, except under the following conditions and restrictions: (1) All sewage discharged or permitted to flow into Class “A” waters of the district shall first have been so treated as (a) to remove all floating solids and at least sixty per centum (60%) of the suspended solids; and (b) to effect a reduction of organisms of the B. Coli group (intestinal bacilli) so that the probable number of such organisms shall not exceed one per cubic centimeter in more than fifty per centum (50%) of the samples of sewage effluent tested by the partially confirmed test; provided, however, that in the case of discharge into waters used primarily for bathing this bacterial standard need not be required except during the bathing season; and

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(c) to effect a reduction in the oxygen demand of the sewage effluent sufficient to maintain an average dissolved oxygen content in the tidal waters of the district and in the general vicinity of the point of discharge of the sewage into those waters, at a depth of about five feet below the surface, of not less than fifty per centum (50%) saturation during any week of the year. (2) All sewage discharged or permitted to flow into class “B” waters of the district shall first have been so treated as (a) to remove all floating solids and at least ten per centum (10%) of the suspended solids, or such additional percentage as may by reason of local conditions be necessary to avoid the formation of sludge deposits in the class “B” waters of the district; and (b) to effect a reduction in the oxygen demand of the sewage effluent sufficient to maintain an average dissolved oxygen content in the tidal waters of the district and in the general vicinity of the point of discharge of the sewage into those waters, at a depth of about five feet below the surface, of not less than thirty per centum (30%) saturation during any week of the year. ARTICLE VIII 1. Each of the signatory states agrees, that in so far as waters within its jurisdiction may flow into any portion of the district, all sewage discharged or permitted to flow into any stream tributary to the tidal waters of the district shall be treated to that extent, if any, which may be necessary to maintain such tributary immediately above its confluence with the tidal waters of the district in a sanitary condition at least equal to the classification requirements determined by the commission for the tidal waters of the district into which it discharges. The waters of the Hudson river, immediately above the mouth of Sparkill creek on the westerly side and the New York-New Jersey boundary extended on the easterly side of the river, shall be maintained in a sanitary condition at ebb tide at least equal to the sanitary condition prevailing in the waters of the river immediately below said boundary at flood tide. ARTICLE IX 1. Nothing in this compact shall be construed to repeal or prevent the enactment of any legislation or the enforcement of any requirement by any signatory state imposing any additional conditions and restrictions to further lessen or prevent the pollution of waters within its jurisdiction.

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ARTICLE X 1. Subject to the provisions of this compact the commission, as soon as may be after its organization, after an investigation and after conducting public hearings upon due notice, shall by order prescribe the reasonable date on or before which each municipality or other entity discharging sewage into the designated waters within the district shall be treating such sewage in accordance with the standards specified in this compact. And such order may prescribe that certain specific progress shall be made at certain definite time prior to the final date fixed in such order. It is the desire of all parties to accomplish the objects herein set forth with the least possible injury to investments which have already been made in the construction of sewage treatment plants within the district, and where changes or additions to such plants would be necessary to conform to the standards herein adopted, a reasonable time to effect such changes or additions may, in the discretion of the commission, be granted. ARTICLE XI 1. Each of the signatory states agrees that it will prohibit the pollution of the said waters within the district in accordance with the several articles of this compact, and that it will enact suitable and adequate legislation which will accomplish effectively the objects of this compact and which will enable its officers, departments, boards and agents to accomplish satisfactorily the obligations and duties assumed by the state under the terms of this compact, and it is further agreed that the courts of the several states shall have jurisdiction to enforce as against any person, corporation, municipality or other entity or any employee, department or subdivision of the respective signatory states any and all provisions of this compact. The commission shall have authority to investigate and determine if the requirements of the compact and/or the orders of the commission pursuant thereto are complied with and if satisfactory progress has not been made, to bring action in its own name in the proper court or courts to compel the enforcement of any and all the provisions of this compact, and/or the orders of the commission pursuant thereto. ARTICLE XII 1. In order that future pollution be controlled and existing pollution be abated with the greatest possible economy and efficiency, the commission shall cooperate and advise with the respective state and district authorities having jurisdiction over stream pollution, with a view to coordinating their activities

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Appendix B and securing the most satisfactory results at lower cost. For such purpose the commission may prepare a general plan of the most practicable and economical method of securing conformity with the standards herein set forth, having in view the future growth and development of the district. Such plan when completed shall be submitted to the governor and the legislature of each state and to the state agency or agencies or district agencies in charge of sewage problems. The provisions of this act shall not affect the discharge from the outfall pipes of the Passaic valley sewerage system into the water of New York harbor; provided, however, that said discharge shall be in accordance with the terms and provisions of the stipulation entered into on April fourteenth, one thousand nine hundred ten, between the United States of America and Passaic valley sewerage commissioners.

ARTICLE XIII 1. Terms used in this compact are defined as follows: “District” means the area more particularly described in article two of this compact. “Commission” means the Interstate Environmental Commission. “Municipality” means any city, incorporated village, borough, county, town, township, district, or any municipality governed by an improvement commission, any joint sewer commission, or any other subdivision of any one of the signatory states, located within the district. “Rule” or “Regulation” means any rule or regulation established by the commission not inconsistent with the constitution of the United States or of any signatory state, promulgated by the commission touching the abatement or pollution of the waters of the district. “Tidal waters” means all those waters which ebb and flow within the designated district. “Dissolved oxygen” is the gaseous oxygen held in solution by the water at any given time. It is expressed as a percentage of the maximum amount of oxygen that would be required to saturate the water under the existing conditions of temperature and salinity. “Pollution” is any foreign matter which renders waters unfit to sustain fish life and unsatisfactory for bathing. “Sewage effluent” means the treated sewage discharged from a treatment plant.

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“Suspended solids” means those solid particles carried in suspension in the untreated sewage or sewage effluent. “Entity” means any organization or association owning, controlling or operating a sewerage system or treatment plant within a municipality. ARTICLE XIV 1. The signatory states agree to appropriate annually for the salaries, office and other administrative expenses such sum or sums as shall be recommended by the commission and approved by the governors of the signatory states, the state of New York and the state of New Jersey agreeing each to appropriate forty-five per centum (45%) thereof, and the state of Connecticut agreeing to appropriate ten per centum (10%) thereof. The state of New York and the state of New Jersey obligate themselves hereunder, however, only to the extent of fifteen thousand dollars ($15,000.00) each in any one year, and the state of Connecticut obligated itself hereunder only to the extent of three thousand, three hundred thirty-three dollars and thirty-four cents ($3,333.34) in any one year. ARTICLE XV 1. Should any part of this compact be held to be contrary to the constitution of any signatory state or of the United States, all other severable objects of this compact shall continue to be in full force and effect. ARTICLE XVI 1. This compact shall become effective as to the state of New Jersey and the state of New York immediately upon the signing thereof by the representatives of such states, and thereafter it shall also become effective as to the state of Connecticut immediately upon the signing thereof by the representatives of such state; provided, however, that prior to the signing of this compact by the representatives of the state of Connecticut the district as set forth in article two shall not embrace any territory within the jurisdiction of the state of Connecticut, nor shall the commission exercise any jurisdiction or perform any duties or acts affecting such territory; and the appropriations for salaries, office and other administrative expenses shall be borne equally by the state of New York and the state of New Jersey. 2. Nothing herein contained shall affect or abate any action now pending brought by any governmental board or body created by or existing under any of the signatory states.

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ARTICLE XVII In addition to, or in substitution for, the classifications of waters set forth in Articles VI and VII of this compact and the effluent standards made applicable thereto, the Commission may develop and, after public hearing place in force other classifications of waters and effluent standards within the District. Such classifications shall be on the basis of present or intended uses of the waters in question and shall be accompanied by requirements governing the quality of effluents, receiving waters, or both, as the public interest may make appropriate. Classifications, standards, and requirements adopted pursuant to this Article shall be developed and may be revised with due consideration for uniformity of requirements relating to the quality of effluents and receiving waters within the same classification in all parts of the District. Classifications made pursuant to this Article shall be governed by and shall implement any water and related land resource plans, water use plans or pollution control plans adopted by appropriate agencies of the signatory states, acting singly or in concert, or through joint intergovernmental agencies. Any exercise of authority by the Commission pursuant to this Article shall be subject to any procedural requirements, if applicable, that may be contained in federal law. Nothing contained in this Article shall be construed to abridge or limit any power otherwise existing of a signatory state to make and enforce classifications, standards, and requirements for effluents and receiving waters.

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Appendix B-37: Upper Colorado River Basin Compact

Public Law No. 81–37 63 Statutes at Large 31 (1949) The state of Arizona, the state of Colorado, the state of New Mexico, the state of Utah and the state of Wyoming, acting through their commissioners, Charles A. Carson for the state of Arizona, Clifford H. Stone for the state of Colorado, Fred E. Wilson for the state of New Mexico, Edward H. Watson for the state of Utah and L. C. Bishop for the state of Wyoming, after negotiations participated in by Harry W. Bashore, appointed by the president as the representative of the United States of America, have agreed, subject to the provisions of the Colorado River Compact, to determine the rights and obligations of each signatory state respecting the uses and deliveries of the water of the upper basin of the Colorado River, as follows: ARTICLE I (a) The major purposes of this compact are to provide for the equitable division and apportionment of the use of the waters of the Colorado River system, the use of which was apportioned in perpetuity to the upper basin by the Colorado River Compact; to establish the obligations of each state of the upper division with respect to the deliveries of water required to be made at Lee Ferry by the Colorado River Compact; to promote interstate comity; to remove causes of present and future controversies; to secure the expeditious agricultural and industrial development of the upper basin, the storage of water and to protect life and property from floods. (b) It is recognized that the Colorado River Compact is in full force and effect and all of the provisions hereof are subject thereto. ARTICLE II (a) As used in this compact: (i) The term “Colorado River system” means that portion of the Colorado River and its tributaries within the United States of America; (ii) The term “Colorado River basin” means all of the drainage area of the Colorado River system and all other territory within the United States of America to which the waters of the Colorado River system shall be beneficially applied;

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(iii) The term “states of the upper division” means the states of Colorado, New Mexico, Utah and Wyoming; (iv) The term “states of the lower division” means the states of Arizona, California and Nevada; (v) The term “Lee Ferry” means a point in the main stream of the Colorado River one (1) mile below the mouth of the Paria River; (vi) The term “upper basin” means those parts of the states of Arizona, Colorado, New Mexico, Utah and Wyoming within and from which waters naturally drain into the Colorado River system above Lee Ferry, and also all parts of said states located without the drainage area of the Colorado River system which are now or shall hereafter be beneficially served by waters diverted from the Colorado River system above Lee Ferry; (vii) The term “lower basin” means those parts of the states of Arizona, California, Nevada, New Mexico and Utah within and from which waters naturally drain into the Colorado River system below Lee Ferry, and also all parts of said states located without the drainage area of the Colorado River system which are now or shall hereafter be beneficially served by waters diverted from the Colorado River system below Lee Ferry; (viii) The term “Colorado River Compact” means the agreement concerning the apportionment of the use of the waters of the Colorado River system dated November 24, 1922, executed by commissioners for the states of Arizona, California, Colorado, Nevada, New Mexico, Utah and Wyoming, approved by Herbert Hoover, representative of the United States of America, and proclaimed effective by the president of the United States of America, June 25, 1929; (ix) The term “upper Colorado River system” means that portion of the Colorado River system above Lee Ferry; (x) The term “commission” means the administrative agency created by article VIII of this compact; (xi) The term “water year” means that period of twelve (12) months ending September 30 of each year; (xii) The term “acre-foot” means the quantity of water required to cover an acre to the depth of one (1) foot and is equivalent to forty-three thousand five hundred sixty (43,560) cubic feet;

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(xiii) The term “domestic use” shall include the use of water for household, stock, municipal, mining, milling, industrial and other like purposes, but shall exclude the generation of electrical power; (xiv) The term “virgin flow” means the flow of any stream undepleted by the activities of man. ARTICLE III (a) Subject to the provisions and limitations contained in the Colorado River Compact and in this compact, there is hereby apportioned from the upper Colorado River system in perpetuity to the states of Arizona, Colorado, New Mexico, Utah and Wyoming, respectively, the consumptive use of water as follows: (i) To the state of Arizona the consumptive use of fifty thousand (50,000) acre-feet of water per annum. (ii) To the states of Colorado, New Mexico, Utah and Wyoming, respectively, the consumptive use per annum of the quantities resulting from the application of the following percentages to the total quantity of consumptive use per annum apportioned in perpetuity to and available for use each year by upper basin under the Colorado River Compact and remaining after the deduction of the use, not to exceed fifty thousand (50,000) acre-feet per annum, made in the state of Arizona. (A) State of Colorado fifty-one and seventy-five hundredths percent (51.75%) (B) State of New Mexico eleven and twenty-five hundredths percent (11.25%) (C) State of Utah twenty-three percent (23%) (D) State of Wyoming fourteen percent (14%) (b) The apportionment made to the respective states by paragraph (a) of this article is based upon, and shall be applied in conformity with, the following principles and each of them: (i) The apportionment is of any and all man-made depletions; (ii) Beneficial use is the basis, the measure and the limit of the right to use; (iii) No state shall exceed its apportioned use in any water year when the effect of such excess use, as determined by the commission, is to deprive another signatory state of its apportioned use during that water year; provided, that this subparagraph (b)(iii) shall not be construed as: (A) Altering the apportionment of use, or obligations to make deliveries as provided in articles XI, XII, XIII or XIV of this compact;

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(B) Purporting to apportion among the signatory states such uses of water as the upper basin may be entitled to under paragraphs (f) and (g) of article III of the Colorado River Compact; or (C) Countenancing average uses by any signatory state in excess of its apportionment. (iv) The apportionment to each state includes all water necessary for the supply of any rights which now exist. (c) No apportionment is hereby made, or intended to be made, of such uses of water as the upper basin may be entitled to under paragraphs (f) and (g) of article III of the Colorado River Compact. (d) The apportionment made by this article shall not be taken as any basis for the allocation among the signatory states of any benefits resulting from the generation of power. ARTICLE IV (a) In the event curtailment of use of water by the states of the upper division at any time shall become necessary in order that the flow at Lee Ferry shall not be depleted below that required by article III of the Colorado River Compact, the extent of curtailment by each state of the consumptive use of water apportioned to it by article III of this compact shall be in such quantities and at such times as shall be determined by the commission upon the application of the following principles: (i) The extent and times of curtailment shall be such as to assure full compliance with article III of the Colorado River Compact; (ii) If any state or states of the upper division, in the ten (10) years immediately preceding the water year in which curtailment is necessary, shall have consumptively used more water than it was or they were, as the case may be, entitled to use under the apportionment made by article III of this compact, such state or states shall be required to supply at Lee Ferry a quantity of water equal to its, or the aggregate of their, overdraft or the proportionate part of such overdraft, as may be necessary to assure compliance with article III of the Colorado River Compact, before demand is made on any other state of the upper division; (iii) Except as provided in subparagraph (ii) of this article, the extent of curtailment by each state of the upper division of the consumptive use of water apportioned to it by article III of this compact shall be such as to result in the delivery at Lee Ferry of a quantity of water which bears the

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same relation to the total required curtailment of use by the states of the upper division as the consumptive use of upper Colorado River system water which was made by each such state during the water year immediately preceding the year in which the curtailment becomes necessary bears to the total consumptive use of such water in the states of the upper division during the same water year; provided, that in determining such relation the uses of water under rights perfected prior to November 24, 1922, shall be excluded. ARTICLE V (a) All losses of water occurring from or as the result of the storage of water in reservoirs constructed prior to the signing of this compact shall be charged to the state in which such reservoir or reservoirs are located. Water stored in reservoirs covered by this paragraph (a) shall be for the exclusive use of and shall be charged to the state in which the reservoir or reservoirs are located. (b) All losses of water occurring from or as the result of the storage of water in reservoirs constructed after the signing of this compact shall be charged as follows: (i) If the commission finds that the reservoir is used, in whole or in part, to assist the states of the upper division in meeting their obligations to deliver water at Lee Ferry imposed by article III of the Colorado River Compact, the commission shall make findings, which in no event shall be contrary to the laws of the United States of America under which any reservoir is constructed, as to the reservoir capacity allocated for that purpose. The whole or that proportion, as the case may be, of reservoir losses as found by the commission to be reasonably and properly chargeable to the reservoir or reservoir capacity utilized to assure deliveries at Lee Ferry shall be charged to the states of the upper division in the proportion which the consumptive use of water in each state of the upper division during the water year in which the charge is made bears to the total consumptive use of water in all states of the upper division during the same water year. Water stored in reservoirs or in reservoir capacity covered by this subparagraph (b)(i) shall be for the common benefit of all of the states of the upper division. (ii) If the commission finds that the reservoir is used, in whole or in part, to supply water for use in a state of the upper division, the commission shall make findings, which in no event shall be contrary to the laws of the United States of America under which any reservoir is constructed, as to the reservoir or reservoir capacity utilized to supply water for use and

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Appendix B the state in which such water will be used. The whole or that proportion, as the case may be, of reservoir losses as found by the commission to be reasonably and properly chargeable to the state in which such water will be used shall be borne by that state. As determined by the commission, water stored in reservoirs covered by this subparagraph (b)(ii) shall be earmarked for and charged to the state in which the water will be used.

(c) In the event the commission finds that a reservoir site is available both to assure deliveries at Lee Ferry and to store water for consumptive use in a state of the upper division, the storage of water for consumptive use shall be given preference. Any reservoir or reservoir capacity hereafter used to assure deliveries at Lee Ferry shall by order of the commission be used to store water for consumptive use in a state, provided the commission finds that such storage is reasonably necessary to permit such state to make the use of the water apportioned to it by this compact. ARTICLE VI The commission shall determine the quantity of the consumptive use of water, which use is apportioned by article III hereof, for the upper basin and for each state of the upper basin by the inflow-outflow method in terms of man-made depletions of the virgin flow at Lee Ferry, unless the commission, by unanimous action, shall adopt a different method of determination. ARTICLE VII The consumptive use of water by the United States of America or any of its agencies, instrumentalities or wards shall be charged as a use by the state in which the use is made; provided, that such consumptive use incident to the diversion, impounding, or conveyance of water in one state for use in another shall be charged to such latter state. ARTICLE VIII (a) There is hereby created an interstate administrative agency to be known as the “Upper Colorado River Commission.” The commission shall be composed of one (1) commissioner representing each of the states of the upper division, namely, the states of Colorado, New Mexico, Utah and Wyoming, designated or appointed in accordance with the laws of each such state and, if designated by the president, one (1) commissioner representing the United States of America. The president is hereby requested to designate a commissioner. If so designated the commissioner representing the United States of America shall be the presiding officer of the commission and shall be entitled to the same powers and rights as the commissioner of any state. Any four (4) members of the commission shall constitute a quorum.

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(b) The salaries and personal expenses of each commissioner shall be paid by the government which he represents. All other expenses which are incurred by the commission incident to the administration of this compact, and which are not paid by the United States of America, shall be borne by the four (4) states according to the percentage of consumptive use apportioned to each. On or before December 1 of each year, the commission shall adopt and transmit to the governors of the four (4) states and to the president a budget covering an estimate of its expenses for the following year, and of the amount payable by each state. Each state shall pay the amount due by it to the commission on or before April 1 of the year following. The payment of the expenses of the commission and of its employees shall not be subject to the audit and accounting procedures of any of the four (4) states; however, all receipt and disbursement of funds handled by the commission shall be audited yearly by a qualified independent public accountant and the report of the audit shall be included in and become a part of the annual report of the commission. (c) The commission shall appoint a secretary, who shall not be a member of the commission, or an employee of any signatory state or of the United States of America while so acting. He shall serve for such term and receive such salary and perform such duties as the commission may direct. The commission may employ such engineering, legal, clerical and other personnel as, in its judgment, may be necessary for the performance of its functions under this compact. In the hiring of employees, the commission shall not be bound by the civil service laws of any state. (d) The commission, so far as consistent with this compact, shall have the power to: (i) Adopt rules and regulations; (ii) Locate, establish, construct, abandon, operate and maintain water gauging stations; (iii) Make estimates to forecast water run-off on the Colorado River and any of its tributaries; (iv) Engage in cooperative studies of water supplies of the Colorado River and its tributaries; (v) Collect, analyze, correlate, preserve and report on data as to the stream flows, storage, diversions and use of the waters of the Colorado River, and any of its tributaries; (vi) Make findings as to the quantity of water of the upper Colorado River system used each year in the upper Colorado River basin and in each state thereof;

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(vii) Make findings as to the quantity of water deliveries at Lee Ferry during each water year; (viii) Make findings as to the necessity for and the extent of the curtailment of use, required, if any, pursuant to article IV hereof; (ix) Make findings as to the quantity of reservoir losses and as to the share thereof chargeable under article V hereof to each of the states; (x) Make findings of fact in the event of the occurrence of extraordinary drought or serious accident to the irrigation system in the upper basin, whereby deliveries by the upper basin of water which it may be required to deliver in order to aid in fulfilling obligations of the United States of America to the United Mexican States arising under the treaty between the United States of America and the United Mexican States, dated February 3, 1944 (Treaty Series 994) become difficult, and report such findings to the governors of the upper basin states, the president of the United States of America, the United States section of the international boundary and water commission, and such other federal officials and agencies as it may deem appropriate to the end that the water allotted to Mexico under division III of such treaty may be reduced in accordance with the terms of such treaty; (xi) Acquire and hold such personal and real property as may be necessary for the performance of its duties hereunder and to dispose of the same when no longer required; (xii) Perform all functions required of it by this compact and do all things necessary, proper or convenient in the performance of its duties hereunder, either independently or in cooperation with any state or federal agency; (xiii) Make and transmit annually to the governors of the signatory states and the president of the United States of America, with the estimated budget, a report covering the activities of the commission for the preceding water year. (e) Except as otherwise provided in this compact the concurrence of four members of the commission shall be required in any action taken by it. (f) The commission and its secretary shall make available to the governor of each of the signatory states any information within its possession at any time, and shall always provide free access to its records by the governors of each of the states, or their representatives, or authorized representatives of the United States of America.

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(g) Findings of fact made by the commission shall not be conclusive in any court, or before any agency or tribunal, but shall constitute prima facie evidence of the facts found. (h) The organization meeting of the commission shall be held within four (4) months from the effective date of this compact. ARTICLE IX (a) No state shall deny the right of the United States of America and, subject to the conditions hereinafter contained, no state shall deny the right of another signatory state, any person, or entity of any signatory state to acquire rights to the use of water, or to construct or participate in the construction and use of diversion works and storage reservoirs with appurtenant works, canals and conduits in one (1) state for the purpose of diverting, conveying, storing, regulating and releasing water to satisfy the provisions of the Colorado River Compact relating to the obligation of the states of the upper division to make deliveries of water at Lee Ferry, or for the purpose of diverting, conveying, storing or regulating water in any upper signatory state for consumptive use in a lower signatory state, when such use is within the apportionment to such lower state made by this compact. Such rights shall be subject to the rights of water users, in a state in which such reservoir or works are located, to receive and use water, the use of which is within the apportionment to such state by this compact. (b) Any signatory state, any person or any entity of any signatory state shall have the right to acquire such property rights as are necessary to the use of water in conformity with this compact in any other signatory state by donation, purchase or through the exercise of the power of eminent domain. Any signatory state, upon the written request of the governor of any other signatory state, for the benefit of whose water users property is to be acquired in the state to which such written request is made, shall proceed expeditiously to acquire the desired property either by purchase at a price satisfactory to the requesting state, or, if such purchase cannot be made, then through the exercise of its power of eminent domain and shall convey such property to the requesting state or such entity as may be designated by the requesting state; provided, that all costs of acquisition and expenses of every kind and nature whatsoever incurred in obtaining the requested property shall be paid by the requesting state at the time and in the manner prescribed by the state requested to acquire the property. (c) Should any facility be constructed in a signatory state by and for the benefit of another signatory state or states or the water users thereof, as above provided, the construction, repair, replacement, maintenance and operation of

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Appendix B such facility shall be subject to the laws of the state in which the facility is located, except that, in the case of a reservoir constructed in one state for the benefit of another state or states, the water administration officials of the state in which the facility is located shall permit the storage and release of any water which, as determined by findings of the commission, falls within the apportionment of the state or states for whose benefit the facility is constructed. In the case of a regulating reservoir for the joint benefit of all states in making Lee Ferry deliveries, the water administration officials of the state in which the facility is located, in permitting the storage and release of water, shall comply with the findings and orders of the commission.

(d) In the event property is acquired by a signatory state in another signatory state for the use and benefit of the former, the users of water made available by such facilities, as a condition precedent to the use thereof, shall pay to the political subdivisions of the state in which such works are located, each and every year during which such rights are enjoyed for such purposes, a sum of money equivalent to the average annual amount of taxes levied and assessed against the land and improvements thereon during the ten (10) years preceding the acquisition of such land. Said payments shall be in full reimbursement for the loss of taxes in such political subdivisions of the state, and in lieu of any and all taxes on said property, improvements and rights. The signatory states recommend to the president and the congress that, in the event the United States of America shall acquire property in one of the signatory states for the benefit of another signatory state, or its water users, provision be made for like payment in reimbursement of loss of taxes. ARTICLE X (a) The signatory states recognize La Plata River Compact entered into between the states of Colorado and New Mexico, dated November 27, 1922, approved by the congress on January 29, 1925 (43 Stat. 796), and this compact shall not affect the apportionment therein made. (b) All consumptive use of water of La Plata River and its tributaries shall be charged under the apportionment of article III hereof to the state in which the use is made; provided, that consumptive use incident to the diversion, impounding or conveyance of water in one state for use in the other shall be charged to the latter state. ARTICLE XI (a) Subject to the provisions of this compact, the consumptive use of the water of the Little Snake River and its tributaries is hereby apportioned between the

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states of Colorado and Wyoming in such quantities as shall result from the application of the following principles and procedures: (i) Water Used Under Rights Existing Prior to the Signing of This Compact: (A) Water diverted from any tributary of the Little Snake River or from the main stem of the Little Snake River above a point one hundred (100) feet below the confluence of Savery Creek and the Little Snake River shall be administered without regard to rights covering the diversion of water from any downstream points. (B) Water diverted from the main stem of the Little Snake River below a point one hundred (100) feet below the confluence of Savery Creek and the Little Snake River shall be administered on the basis of an interstate priority schedule prepared by the commission in conformity with priority dates established by the laws of the respective states. (ii) Water Used Under Rights Initiated Subsequent to the Signing of This Compact: (A) Direct flow diversions shall be so administered that, in time of shortage, the curtailment of use on each acre of land irrigated thereunder shall be as nearly equal as may be possible in both of the states. (B) The storage of water by projects located in either state, whether of supplemental supply or of water used to irrigate land not irrigated at the date of the signing of this compact, shall be so administered that in times of water shortage the curtailment of storage water available for each acre of land irrigated thereunder shall be as nearly equal as may be possible in both states. (iii) Water uses under the apportionment made by this article shall be in accordance with the principle that beneficial use shall be the basis, measure and limit of the right to use. (iv) The states of Colorado and Wyoming each assent to diversions and storage of water in one (1) state for use in the other state, subject to compliance with article IX of this compact. (v) In the event of the importation of water to the Little Snake River basin from any other river basin, the state making the importation shall have the exclusive use of such imported water unless by written agreement, made by the representatives of the states of Colorado and Wyoming on the commission, it is otherwise provided. (vi) Water use projects initiated after the signing of this compact, to the

470

Appendix B greatest extent possible, shall permit the full use within the basin in the most feasible manner of the waters of the Little Snake River and its tributaries, without regard to the state line; and, so far as is practicable, shall result in an equal division between the states of the use of water not used under rights existing prior to the signing of this compact.

(vii) All consumptive use of the waters of the Little Snake River and its tributaries shall be charged under the apportionment of article III hereof to the state in which the use is made; provided, that consumptive use incident to the diversion, impounding or conveyance of water in one (1) state for use in the other shall be charged to the latter state. ARTICLE XII (a) Subject to the provisions of this compact, the consumptive use of the waters of Henry’s Fork, a tributary of Green River originating in the state of Utah and flowing into the state of Wyoming and thence into the Green River in the state of Utah; Beaver Creek, originating in the state of Utah and flowing into Henry’s Fork in the state of Wyoming; Burnt Fork, a tributary of Henry’s Fork, originating in the state of Utah and flowing into Henry’s Fork in the state of Wyoming; Birch Creek, a tributary of Henry’s Fork originating in the state of Utah and flowing into Henry’s Fork in the state of Wyoming; and Sheep Creek, a tributary of Green River in the state of Utah, and their tributaries, are hereby apportioned between the states of Utah and Wyoming in such quantities as will result from the application of the following principles and procedures: (i) Waters diverted from Henry’s Fork, Beaver Creek, Burnt Fork, Birch Creek and their tributaries, shall be administered without regard to the state line on the basis of an interstate priority schedule to be prepared by the states affected and approved by the commission in conformity with the actual priority of right of use, the water requirements of the land irrigated and the acreage irrigated in connection therewith. (ii) Waters used under rights from Henry’s Fork, Beaver Creek, Burnt Fork, Birch Creek and their tributaries, initiated after the signing of this compact shall be divided fifty percent (50%) to the state of Wyoming and fifty percent (50%) to the state of Utah and each state may use said waters as and where it deems advisable. (iii) The state of Wyoming assents to the exclusive use by the state of Utah of the water of Sheep Creek, except that the lands, if any, presently irrigated in the state of Wyoming from the water of Sheep Creek shall be supplied with water from Sheep Creek in order of priority and in such quantities as are in conformity with the laws of the state of Utah.

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(iv) In the event of the importation of water to Henry’s Fork, or any of its tributaries, from any other river basin, the state making the importation shall have the exclusive use of such imported water unless by written agreement made by the representatives of the states of Utah and Wyoming on the commission, it is otherwise provided.

(v) All consumptive use of waters of Henry’s Fork, Beaver Creek, Burnt Fork, Birch Creek, Sheep Creek, and their tributaries shall be charged under the apportionment of article III hereof to the state in which the use is made; provided, that consumptive use incident to the diversion, impounding or conveyance of water in one (1) state for use in the other shall be charged to the latter state. (vi) The states of Utah and Wyoming each assent to the diversion and storage of water in one (1) state for use in the other state, subject to compliance with article IX of this compact. It shall be the duty of the water administrative officials of the state where the water is stored to release said stored water to the other state upon demand. If either the state of Utah or the state of Wyoming shall construct a reservoir in the other state for use in its own state, the water users of the state in which said facilities are constructed may purchase at cost a portion of the capacity of said reservoir sufficient for the irrigation of their lands thereunder. (vii) In order to measure the flow of water diverted, each state shall cause suitable measuring devices to be constructed, maintained and operated at or near the point of diversion into each ditch. (viii) The state engineers of the two (2) states jointly shall appoint a special water commissioner who shall have authority to administer the water in both states in accordance with the terms of this article. The salary and expenses of such special water commissioner shall be paid, thirty percent (30%) by the state of Utah and seventy percent (70%) by the state of Wyoming. ARTICLE XIII (a) Subject to the provisions of this compact, the rights to the consumptive use of the water of the Yampa River, a tributary entering the Green River in the state of Colorado, are hereby apportioned between the states of Colorado and Utah in accordance with the following principles: (i) The state of Colorado will not cause the flow of the Yampa River at the Maybell Gaging Station to be depleted below an aggregate of five million (5,000,000) acre-feet for any period of ten (10) consecutive years

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Appendix B reckoned in continuing progressive series beginning with the first day of October next succeeding the ratification and approval of this compact. In the event any diversion is made from the Yampa River or from tributaries entering the Yampa River above the Maybell Gaging Station for the benefit of any water use project in the state of Utah, then the gross amount of all such diversions for use in the state of Utah, less any returns from such diversions to the river above Maybell, shall be added to the actual flow at the Maybell Gaging Station to determine the total flow at the Maybell Gaging Station.

(ii) All consumptive use of the waters of the Yampa River and its tributaries shall be charged under the apportionment of article III hereof to the state in which the use is made; provided, that consumptive use incident to the diversion, impounding or conveyance of water in one (1) state for use in the other shall be charged to the latter state. ARTICLE XIV (a) Subject to the provisions of this compact, the consumptive use of the waters of the San Juan River and its tributaries is hereby apportioned between the states of Colorado and New Mexico as follows: (i) The state of Colorado agrees to deliver to the state of New Mexico from the San Juan River and its tributaries which rise in the state of Colorado a quantity of water which shall be sufficient, together with water originating in the San Juan basin in the state of New Mexico, to enable the state of New Mexico to make full use of the water apportioned to the state of New Mexico by article III of this compact, subject however, to the following: (A) A first and prior right shall be recognized as to: (I) All uses of water made in either state at the time of the signing of this compact; and (II) All uses of water contemplated by projects authorized, at the time of the signing of this compact, under the laws of the United States of America whether or not such projects are eventually constructed by the United States of America or by some other entity. (B) The state of Colorado assents to diversions and storage of water in the state of Colorado for use in the state of New Mexico, subject to compliance with article IX of this compact. (C) The uses of the waters of the San Juan River and any of its tributaries within either state which are dependent upon a common source of water and which are not covered by (A) hereof, shall in times of

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water shortages be reduced in such quantity that the resulting consumptive use in each state will bear the same proportionate relation to the consumptive use made in each state during times of average water supply as determined by the commission; provided, that any preferential uses of water to which Indians are entitled under article XIX shall be excluded in determining the amount of curtailment to be made under this paragraph. (D) The curtailment of water use by either state in order to make deliveries at Lee Ferry as required by article IV of this compact shall be independent of any and all conditions imposed by this article and shall be made by each state, as and when required, without regard to any provision of this article. (E) All consumptive use of the waters of the San Juan River and its tributaries shall be charged under the apportionment of article III hereof to the state in which the use is made; provided, that consumptive use incident to the diversion, impounding or conveyance of water in one (1) state for use in the other shall be charged to the latter state. ARTICLE XV (a) Subject to the provisions of the Colorado River Compact and of this compact, water of the upper Colorado River system may be impounded and used for the generation of electrical power, but such impounding and use shall be subservient to the use and consumption of such water for agricultural and domestic purposes and shall not interfere with or prevent use for such dominant purposes. (b) The provisions of this compact shall not apply to or interfere with the right or power of any signatory state to regulate within its boundaries the appropriation, use and control of water, the consumptive use of which is apportioned and available to such state by this compact. ARTICLE XVI The failure of any state to use the water, or any part thereof, the use of which is apportioned to it under the terms of this compact, shall not constitute a relinquishment of the right to such use to the lower basin or to any other state, nor shall it constitute a forfeiture or abandonment of the right to such use. ARTICLE XVII The use of any water now or hereafter imported into the natural drainage basin of the upper Colorado River system shall not be charged to any state under the apportionment of consumptive use made by this compact.

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Appendix B

ARTICLE XVIII (a) The state of Arizona reserves its rights and interests under the Colorado River Compact as a state of the lower division and as a state of the lower basin. (b) The state of New Mexico and the state of Utah reserve their respective rights and interests under the Colorado River Compact as states of the lower basin. ARTICLE XIX (a) Nothing in this compact shall be construed as: (i) Affecting the obligations of the United States of America to Indian tribes; (ii) Affecting the obligations of the United States of America under the treaty with the United Mexican States (Treaty Series 994); (iii) Affecting any rights or powers of the United States of America, its agencies or instrumentalities, in or to the waters of the Upper Colorado River system, or its capacity to acquire rights in and to the use of said waters; (iv) Subjecting any property of the United States of America, its agencies or instrumentalities, to taxation by any state or subdivision thereof, or creating any obligation on the part of the United States of America, its agencies or instrumentalities, by reason of the acquisition, construction or operation of any property or works of whatever kind, to make any payment to any state or political subdivision thereof, state agency, municipality or entity whatsoever, in reimbursement for the loss of taxes; (v) Subjecting any property of the United States of America, its agencies or instrumentalities, to the laws of any state to an extent other than the extent to which such laws would apply without regard to this compact. ARTICLE XX This compact may be terminated at any time by the unanimous agreement of the signatory states. In the event of such termination, all rights established under it shall continue unimpaired. ARTICLE XXI This compact shall become binding and obligatory when it shall have been ratified by the legislatures of each of the signatory states and approved by the congress of the United States of America. Notice of ratification by the legislatures of the signatory states shall be given by the governor of each signatory state to the governor of each

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of the other signatory states and to the president of the United States of America, and the president is hereby requested to give notice to the governor of each of the signatory states of approval by the congress of the United States of America. IN WITNESS WHEREOF, the commissioners have executed six (6) counterparts hereof each of which shall be and constitute an original, one (1) of which shall be deposited in the archives of the department of state of the United States of America, and one (1) of which shall be forwarded to the governor of each of the signatory states. Done at the city of Santa Fe, state of New Mexico, this 11th day of October, 1948.

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Appendix B

Appendix B-38: Upper Niobrara River Compact

Public Law No. 91–52 83 Statutes at Large 86 (1969) The state of Wyoming, and the state of Nebraska, parties signatory to this compact (hereinafter referred to as Wyoming and Nebraska, respectively, or individually as a “state” or collectively as “states”), having resolved to conclude a compact with respect to the use of waters of the Niobrara River basin, and being duly authorized by Act of congress of the United States of America, approved August 5, 1953 (Public Law 191, 83rd congress, 1st Session, chapter 324, 67 Stat. 365) and the Act of May 29, 1958 (Public Law 85–427, 85th congress, S.2557, 72 Stat. 147) and the Act of August 30, 1961 (Public Law 87–181, 87th congress, S.2245, 75 Stat. 412) and pursuant to the acts of their respective legislatures have, through their respective governors, appointed as their commissioners: for Wyoming, Earl Lloyd, Andrew McMaster, Richard Pfister, John Christian, Eugene P. Willson, H. T. Person, Norman B. Gray, E. J. Van Camp; for Nebraska, Dan S. Jones, Jr., who after negotiations participated in by W. E. Blomgren appointed by the president of the United States of America, have agreed upon the following articles: ARTICLE I (a) The major purposes of this compact are to provide for an equitable division or apportionment of the available surface waters supply of the upper Niobrara River basin between the states; to provide for obtaining information or groundwater and underground water flow necessary for apportioning the underground flow by supplement to this compact; to remove all causes, present and future which might lead to controversies; and to promote interstate comity. (b) The physical and other conditions peculiar to the upper Niobrara River basin constitute the basis for this compact, and neither of the states hereby concedes that this compact establishes any general principle or precedent with respect to any other interstate stream. (c) Either state and all others using, claiming or in any other manner asserting any right to the use of the waters of the Niobrara River basin under the authority of that state, shall be subject to the terms of this compact. ARTICLE II (a) The term “upper Niobrara River” shall mean and include the Niobrara River and its tributaries in Nebraska and Wyoming west of range 55 west of the 6th p.m.

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(b) The term “upper Niobrara River basin” or the term “basin” shall mean that area in Wyoming and Nebraska which is naturally drained by the Niobrara River west of range 55 west of the 6th p.m. (c) Where the name of a state or the term “state” or “states” is used, they shall be construed to include any person or entity of any nature whatsoever using, claiming, or in any manner asserting any right to the use of the waters of the Niobrara River under the authority of that state. ARTICLE III (a) It shall be the duty of the two (2) states to administer this compact through the official in each state who is now or may hereafter be charged with the duty of administering the public water supplies, and to collect and correlate through such officials the data necessary for the proper administration of the provisions of this compact. Such officials may, by unanimous action, adopt rules and regulations consistent with the provisions of this compact. (b) The states agree that the United States geological survey, or whatever federal agency may succeed to the functions and duties of that agency, insofar as this compact is concerned, may collaborate with the officials of the states charged with the administration of this compact in the execution of the duty of such officials in the collection, correlation, and publication of information necessary for the proper administration of this compact. ARTICLE IV Each state shall itself or in conjunction with other responsible agencies cause to be established, maintained, and operated such suitable water gaging stations as are found necessary to administer this compact. ARTICLE V (a) Wyoming and Nebraska agree that the division of surface waters of the upper Niobrara River shall be in accordance with the following provisions: (i) There shall be no restrictions on the use of the surface waters of the upper Niobrara River by Wyoming except as would be imposed under Wyoming law and the following limitations: (A) No reservoir constructed after August 1, 1957, and used solely for domestic and stock water purposes shall exceed twenty (20) acrefeet in capacity. (B) Storage reservoirs with priority dates after August 1, 1957, and storing water from the main stem of the Niobrara River east of range

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Appendix B

62 west of the 6th p.m. and from the main stem of Van Tassel Creek south of section 27, township 32 north, range 60 west of the 6th p.m. shall not store in any water year (October 1 of one (1) year to September 30 of the next year) more than a total of five hundred (500) acre-feet of water. (C) Storage in reservoirs with priority dates prior to August 1, 1957, and storing water from the main stem of the Niobrara River east of range 62 west and from the main stem of Van Tassel Creek south of section 27, township 32 north, shall be made only during the period October 1 of one (1) year to June 1 of the next year and at such times during the period June 1 to September 30 that the water is not required to meet the legal requirements by direct flow appropriations in Wyoming and Nebraska west of range 55 west. Where water is pumped from such storage reservoirs, the quantity of storage water pumped or otherwise diverted for irrigation purposes or other beneficial purposes from any such reservoir in any water year shall be limited to the capacity of such reservoir as shown by the records of the Wyoming state engineer’s office, unless additional storage water becomes available during the period June 1 to September 30 after meeting the legal diversion requirements by direct flow appropriations in Wyoming and Nebraska west of range 55 west. (D) Storage in reservoirs with priority dates after August 1, 1957 and storing water from the main stem of the Niobrara River east of range 62 west and the main stem of Van Tassel Creek south of section 27, township 32 north, shall be made only during the period October 1 of one (1) year to May 1 of the next year and at such times during the period May 1 and September 30 that the water is not required for direct diversion by ditches in Wyoming and in Nebraska west of range 55 west. (E) Direct flow rights with priority dates after August 1, 1957, on the main stem of the Niobrara River east of range 62 west and Van Tassel Creek south of section 27, township 32 north, shall be regulated on a priority basis with Nebraska rights west of range 55 west, provided that any direct flow rights for maximum of one hundred forty-three (143) acres which may be granted by the Wyoming state engineer with a priority date not later than July 1, 1961, for lands which had territorial rights under the Van Tassel No. 4 Ditch with a priority date of April 8, 1882, and the Van Tassel No. 5 Ditch with a priority date of April 18, 1882, shall be exempt from the provisions of this subsection (E).

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(F) All direct flow diversions from the main stem of the Niobrara River east of range 62 west and from Van Tassel Creek south of section 27, township 32 north shall at all times be limited to their diversion rates as specified by Wyoming law, and provided that Wyoming laws relating to diversion of “surplus water” (W.S. 41–4–317 through 41–4–324) shall apply only when the water flowing in the main channel of the Niobrara River west of range 55 west is in excess of the legal diversion requirements of Nebraska ditches having priority dates before August 1, 1957. ARTICLE VI (a) Nebraska and Wyoming recognize that the future use of ground water for irrigation in the Niobrara River basin may be a factor in the depletion of the surface flows of the Niobrara River, and since the data now available are inadequate to make a determination in regard to this matter, any apportionment of the ground water of the Niobrara River basin should be delayed until such time as adequate date [data] on ground water of the basin are available. (b) To obtain data on ground water, Nebraska and Wyoming, with the cooperation and advice of the United States geological survey, ground water branch, shall undertake ground water investigations in the Niobrara River basin in the area of the Wyoming-Nebraska state line. The investigations shall be such as are agreed to by the state engineer of Wyoming and the director of water resources of Nebraska, and may include such observation wells as the said two (2) officials agree are essential for the investigations. Costs of the investigations may be financed under the cooperative ground water programs between the United States geological survey and the states, and the states’ share of the costs shall be borne equally by the two (2) states. (c) The ground water investigations shall begin within one (1) year after the effective date of this compact. Upon collection of not more than twelve (12) months of ground water data Nebraska and Wyoming with the cooperation of the United States geological survey shall make, or cause to be made an analysis of such data to determine the desirability or necessity of apportioning the ground water by supplement to this compact. If, upon completion of the initial analysis, it is determined that apportionment of the ground water is not then desirable or necessary, re-analysis shall be made at not to exceed two (2) year intervals, using all data collected until such apportionment is made. (d) When the results of the ground water investigations indicate that apportionment of ground water of the Niobrara River basin is desirable, the two (2)

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Appendix B states shall proceed to negotiate a supplement to this compact apportioning the ground water of the basin.

(e) Any proposed supplement to this compact apportioning the ground water shall not become effective until ratified by the legislatures of the two (2) states and approved by the congress of the United States. ARTICLE VII The provisions of this compact shall remain in full force and effect until amended by action of the legislatures of the signatory states and until such amendment is consented to and approved by the congress of the United States in the same manner as this compact is required to be ratified and consented to in order to become effective. ARTICLE VIII Nothing in this compact shall be construed to limit or prevent either state from instituting or maintaining any action or proceeding, legal or equitable, in any court of competent jurisdiction for the protection of any right under this compact or the enforcement of any of its provisions. ARTICLE IX (a) Nothing in this compact shall be deemed: (i) To impair or affect any rights or powers of the United States, its agencies, or instrumentalities, in and to the use of the waters of the upper Niobrara River basin nor its capacity to acquire rights in and to the use of said waters; provided that any beneficial uses of the waters allocated by this compact hereafter made within a state by the United States, or those acting by or under its authority, shall be taken into account in determining the extent of use within that state. (ii) To subject any property of the United States, its agencies, or instrumentalities to taxation by either state or subdivision thereof, nor to create an obligation on the part of the United States, its agencies, or instrumentalities, by reason of the acquisition, construction or operation of any property or works of whatsoever kind, to make any payment to any state or political subdivision thereof, state agency, municipality, or equity whatsoever in reimbursement for the loss of taxes. (iii) To subject any property of the United States, its agencies, or instrumentalities, to the laws of any state to an extent other than the extent to which these laws apply without regard to the compact.

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(iv) To affect the obligations of the United States of America to Indians or Indian tribes, or any right owned or held by or for Indians or Indian tribes which is subject to the jurisdiction of the United States. ARTICLE X Should a court of competent jurisdiction hold any part of this compact contrary to the constitution of any state or of the United States, all other severable provisions shall continue in full force and effect. ARTICLE XI This compact shall become effective when ratified by the legislatures. IN WITNESS WHEREOF, the commissioners have signed this compact in triplicate original, one (1) of which shall be filed in the archives of the United States of America and shall be deemed the authoritative original, and one (1) copy of which shall be forwarded to the governor of each of the signatory states. Done at the city of Cheyenne, in the state of Wyoming, this 26th day of October, in the year of our Lord, One Thousand Nine Hundred Sixty-Two 1962.

482

Appendix B

Appendix B-39: Wabash Valley Compact Public Law No. 86–375 73 Statutes at Large 694 (1959)

Article I. Findings and Purpose The party states find that the Wabash Valley has suffered from a lack of comprehensive planning for the optimal use of its human and natural resources and that under-utilization and inadequate benefits from its potential wealth are likely to continue until there is proper organization to encourage and facilitate coordinated development of the Wabash Valley as a region and to relate its agricultural, industrial, commercial, recreational, transportation, development and other problems to the opportunities in the Valley. To this end it is the purpose of the party states to recognize and provide for such development and coordination and to establish an agency of the party states with powers sufficient and appropriate to further regional planning for the Valley. Article II. The Valley As used in this compact, the term “Wabash Valley” shall mean the Wabash River, its tributaries and all land drained by said river and tributaries, to whatever extent they lie within the party states. Article III. The Wabash Valley Interstate Commission (a) There is hereby created an agency of the party states to be known as the Wabash Valley Interstate Commission (hereinafter called the Commission). The Commission shall be composed of seven Commissioners from each party state designated or appointed in accordance with the law of the state which they represent and serving and subject to removal in accordance with such law. The federal government may be represented without vote if provision is made by federal law for such representation. (b) The Commissioners of the party states shall each be entitled to one vote in the Commission. No action of the Commission shall be binding unless taken at a meeting in which a majority of the members from each party state are present and unless a majority of those from each state concur, provided that any action not binding for such a reason may be ratified within thirty days by the concurrence of a majority of each state. In the absence of any Commissioner, his vote may be cast by another representative or Commissioner of his

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state provided that said Commissioner or other representative casting said vote shall have a written proxy in proper form as may be required by the Commission. (c) The Commission may sue and be sued, and shall have a seal. (d) The Commission shall elect annually, from among its members, a chairman, a vice-chairman and a treasurer. The Commission shall appoint an executive director who shall also act as secretary, and who, together with the treasurer, shall be bonded in such amounts as the Commission may require. (e) The Commission shall appoint and remove or discharge such personnel as may be necessary for the performance of the Commission’s functions irrespective of the civil service, personnel or other merit system laws of any of the party states. (f) The Commission may establish and maintain, independently or in conjunction with any one or more of the party states, a suitable retirement system for its employees. Employees of the Commission shall be eligible for social security coverage in respect of old-age and survivors insurance provided that the Commission takes such steps as may be necessary pursuant to federal law to participate in such program of insurance as a governmental agency or unit. The Commission may establish and maintain or participate in such additional programs of employee benefits as may be appropriate to afford employees of the Commission terms and conditions of employment similar to those enjoyed by employees of the party states generally. (g) The Commission may borrow, accept, or contract for the services of personnel from any state or the United States or any subdivision or agency thereof, from any interstate agency, or from any institution, person, firm or corporation. (h) The Commission may accept for any of its purposes and functions under this compact any and all donations, and grants of money, equipment, supplies, materials and services, conditional or otherwise, from any state or the United States or any subdivision or agency thereof, or interstate agency, or from any institution, person, firm or corporation, and may receive, utilize and dispose of the same. (i) The Commission may establish and maintain such facilities as may be necessary for the transacting of its business. The Commission may acquire, hold, and convey real and personal property and any interest therein. (j) The Commission may adopt, amend, and rescind bylaws, rules and regulations for the conduct of its business.

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(k) The Commission annually shall make to the Governor of each party state, a report covering the activities of the Commission for the preceding year, and embodying such recommendations as may have been adopted by the Commission which report shall be transmitted to the legislature of said state. The Commission may issue such additional reports as it may deem desirable. Article IV. Finances (a) The Commission shall submit to the executive head or designated officer or officers of each party state a budget of its estimated expenditures for such period as may be required by the laws of that jurisdiction for presentation to the legislature thereof. (b) Each of the Commission’s budgets of estimated expenditures shall contain specific recommendations of the amount or amounts to be appropriated by each of the party states. Subject to appropriation by the respective legislatures the Commission shall be provided with such funds by each of the party states as are necessary to provide the means of establishing and maintaining facilities, a staff of personnel, and such activities as may be necessary to fulfill the powers and duties imposed upon and entrusted to the Commission. (c) The Commission may meet any of its obligations in whole or in part with funds available to it under Article III(h) of this compact, provided that the Commission takes specific action setting aside such funds prior to the incurring of any obligation to be met in whole or in part in this manner. Except where the Commission makes use of funds available to it under Article III(h) hereof, the Commission shall not incur any obligations prior to the allotment of funds by the party jurisdictions adequate to meet the same. (d) The expenses and any other costs for each member of the Commission shall be met by the Commission in accordance with such standards and procedures as it may establish under its bylaws. (e) The Commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the Commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the Commission shall be audited yearly by a qualified public accountant and the report of the audit shall be included in and become a part of the annual report of the Commission. (f) The accounts of the Commission shall be open at any reasonable time for inspection.

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Article V. Advice and Cooperation (a) The Commission shall establish a technical advisory committee which shall be composed of representatives of such departments or agencies of the governments of the party states as have significant interest in the subject matter of the Commission’s work: Provided that if pursuant to the laws of a party state a representative of any such department or agency serves as a member of the Commission said department or agency need not be represented on the technical advisory committee. The Commission shall provide under its bylaws for procedures for the reference of questions to such committee. (b) The Commission may establish other advisory and technical committees composed of private citizens, expert and lay personnel, representatives of industry, labor, commerce, agriculture, civic associations, and officials of local, state and federal government, and may cooperate with and use the services of any such committee and the organizations which they represent in furthering any of its activities under this compact. The Commission shall encourage citizen organization and activity for the promotion of the objectives of this compact. Article VI. Functions The Commission shall have power to: A. Promote the balanced development of the Wabash Valley by (1) Correlating and reporting on data significant to such development. (2) Recommending the coordination of studies by the agencies of the party states to provide such data. (3) Publishing and disseminating materials and studies which will encourage the economic development of the Valley. (4) Recommending standards as guides for local and state zoning and other action which will promote balanced development by encouraging the establishment of industrial parks to facilitate industrial development, the reservation of stream bank and lake shore areas for recreation and public access to water, the preservation of marshes and other suitable areas as wild life preserves, the afforestation and sustained yield forest management of submarginal lands, the protection of scenic values and amenities and other appropriate measures. (5) Preparing in cooperation with appropriate governmental agencies a master plan for the identification and programming of public works.

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(6) Cooperating with all appropriate governmental agencies in the encouragement of tourist traffic and facilities in the Valley. B. Recommend integrated plans and programs for the conservation, development and proper utilization of the water, land and related natural resources of the Wabash Valley, including but not limited to: (1) Encouraging the classification of Valley lands in terms of appropriate uses. (2) Cooperating in the development of appropriate plans for flood protection, including but not limited to the construction of protective works and reservoirs. (3) Developing public awareness of the need for flood plain zoning and in cooperation with the appropriate agencies of the party states and their political subdivisions evolving standards for the implementation and application of such zoning in the Valley. (4) Reviewing the need for and appropriate sources of suitable water supplies for domestic, municipal, agricultural, power, industrial, recreation and transportation purposes. (5) Encouraging a pattern of land use and resource management which will increase the natural wealth of the Valley and promote the welfare of its inhabitants. (6) In cooperation with appropriate agencies, analyzing the recreational needs and potential of the Valley and developing a program for the use and maximization of recreational resources. C. Secure the necessary research and developmental activities by: (1) Correlating such research and developmental activities as are placed within its purview by this compact. The Commission may engage in original investigation and research on its own account or secure the undertaking thereof by a qualified public or private agency. (2) Making contracts for studies, investigations and research in any of the fields of its interest. (3) Publishing and disseminating reports. D. Make recommendations for appropriate action to: (1) The legislatures and executive heads of the party states and the federal government. (2) The agencies of the party states and the federal government.

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E. Undertake such additional functions as may hereafter be delegated to or imposed upon it from time to time by the action of the legislature of a party state concurred in by the legislature of the other. Article VII. Enactment and Withdrawal This compact shall become effective when entered into and enacted into law by the states of Illinois and Indiana. The compact shall continue in force and remain binding upon each party state until renounced by legislative action of either party state. Article VIII. Construction and Severability The provisions of this compact shall be severable and if any phrase, clause, sentence or provision of this compact is declared to be unconstitutional or the applicability thereof to any state, agency, person or circumstance is held invalid, the constitutionality of the remainder of this compact and the applicability thereof to any other state, agency, person or circumstance shall not be affected thereby. It is the legislative intent that the provisions of this compact be reasonably and liberally construed.

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Appendix B-40: Wheeling Creek Watershed Protection and Flood Prevention District Compact Public Law No. 90–181 81 Statutes at Large 553 (1967)

ARTICLE I. RECITATION OF REASONS FOR COMPACT Whereas, Wheeling Creek, a tributary of the Ohio River, arises in Pennsylvania, flows through Washington and Greene Counties of that Commonwealth, enters the State of West Virginia, flows through Marshall and Ohio Counties, West Virginia, and empties into the Ohio River at Wheeling, West Virginia; and Whereas, the inhabitants of Marshall and Ohio Counties, West Virginia, and also, but to a much lesser degree, the inhabitants of Washington and Greene Counties, Pennsylvania, living along Wheeling Creek have over the years experienced loss of life and property from flooding of that stream; and Whereas, surveys made by the Soil Conservation Service of the United States Department of Agriculture indicate that the inhabitants of the four counties named can best be protected from the flooding of Wheeling Creek by flood prevention dams constructed thereon with some of the dams being located on the upper reaches of the stream and its tributaries in the Commonwealth of Pennsylvania; and Whereas, the Federal Watershed Protection and Flood Prevention Act of 1954, as amended, authorizes, under certain circumstances, federal assistance to local organizations in preparing and carrying out undertakings for flood prevention and the conservation, development, utilization and disposal of water in watershed or subwatershed areas; and Whereas, no local organization within the meaning of the federal act aforesaid established by or organized under the laws of West Virginia is competent under state laws to acquire land for, construct, and operate with or without federal assistance flood prevention facilities in the Commonwealth of Pennsylvania, and it appears that no such local organization established by or organized under the laws of the Commonwealth of Pennsylvania can justify the expenditure of locally raised funds to construct and operate flood prevention facilities which will benefit primarily the inhabitants of the neighboring State of West Virginia; and Whereas, facilities erected on the upper reaches of Wheeling Creek and its tributaries for flood control and prevention can nevertheless have a recreational value for the citizens of both West Virginia and Pennsylvania and particularly the citizens of Ohio and Marshall Counties, West Virginia, and Washington and Greene Counties, Pennsylvania; accordingly, for purposes of promoting that potential, as

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well as providing a vehicle or means whereby federal assistance may be enlisted for the protection of citizens of her neighboring State of West Virginia from the flooding of Wheeling Creek, the Commonwealth of Pennsylvania joins with the State of West Virginia in negotiating and ratifying this Compact; now therefore, ARTICLE II. WHEELING CREEK WATERSHED PROTECTION AND FLOOD PREVENTION DISTRICT CREATED The Commonwealth of Pennsylvania and the State of West Virginia hereby create as an agency and instrumentality of the governments thereof a district to be known as the “Wheeling Creek Watershed Protection and Flood Prevention District,” hereinafter called the District, which shall embrace all territory in the Commonwealth of Pennsylvania and the State of West Virginia, the water in which flows ultimately into Wheeling Creek or its tributaries. ARTICLE III. WHEELING CREEK WATERSHED PROTECTION AND FLOOD PREVENTION COMMISSION CREATED The Commonwealth of Pennsylvania and the State of West Virginia hereby creates as the governing body of the District the, “Wheeling Creek Watershed Protection and Flood Prevention Commission,” hereinafter called the Commission, which shall be a body corporate, with the powers and duties set forth herein, and such additional powers as may be conferred upon it by subsequent concurrent action of the General Assembly of Pennsylvania and the Legislature of West Virginia or by act or acts of the Congress of the United States. ARTICLE IV. COMPOSITION OF COMMISSION The Commission shall consist of five commissioners from Pennsylvania and five commissioners from West Virginia, each of whom shall be a citizen of the commonwealth or state from which he is appointed. The commissioners from the commonwealth and from the state shall be chosen in the manner and for the terms provided by the laws of the commonwealth or state from which they shall be appointed, and any commissioner may be removed or suspended from office as provided by the law of the commonwealth or state from which he shall be appointed. Vacancies on the Commission shall be filled in the manner provided by the laws of the commonwealth or state among whose representation on the Commission the vacancy occurs. The commissioners shall serve without compensation from the Commission, but they shall be paid by the Commission their actual expenses incurred and incident to the performance of their duties.

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ARTICLE V. ORGANIZATION OF COMMISSION The Commission shall meet and organize within sixty days after the effective date of this Compact, shall elect from its number a chairman and vice chairman, and shall appoint, and at its pleasure remove or discharge, such officers and legal, clerical, expert and other assistants as may be required to carry the provisions of this Compact into effect, and shall determine their qualifications and fix their duties and compensation. It shall adopt a seal and suitable bylaws, and shall adopt and promulgate rules and regulations for its management and control. It may establish and maintain one or more offices within the District for the transaction of its business, and may meet at any time or place. The presence of three commissioners from the Commonwealth of Pennsylvania and three commissioners from the State of West Virginia shall constitute a quorum, and a majority vote of the quorum shall be necessary to pass upon matters before the Commission. ARTICLE VI. POWERS AND DUTIES The Commission is hereby authorized and empowered: (A) To be and serve in the capacity of a local organization within the meaning of the Watershed Protection and Flood Prevention Act of the 83rd Congress of the United States, Second Session, (Public Law 566), approved August 4, 1954, as from time to time amended, and in that capacity the Commission shall have the following authority and powers: (1) To apply for and receive federal financial and other assistance in preparing and carrying out plans for works of improvement as that term is defined in said federal act, as from time to time amended, hereinafter referred to as works of improvement, and to apply for and receive federal financial and other assistance under the aforementioned or other federal acts in preparing and carrying out plans for public fish and wildlife or recreational development in connection with works of improvement, including the construction and operation of all facilities which may be necessary or incident to such works of improvement and public fish and wildlife or recreational development in connection therewith. (2) To acquire, or with respect to interests in land to be acquired by condemnation, provide assurances satisfactory to the Secretary of Agriculture of the United States or other agent or agency of the United States that the Commission will acquire such land, easements, or rights-of-way as will be needed in connection with works of improvement, and public fish and

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wildlife or recreational development and facilities in connection with works of improvement, installed with federal assistance. (3) To agree to operate and maintain any reservoir or other area included in a plan for works of improvement or public fish and wildlife or recreational development and facilities. (4) To assume all or such proportionate share, as is determined by the Secretary of Agriculture of the United States or other agent or agency of the United States, of the costs of installing any works of improvement, involving federal assistance, which is applicable to the agricultural phases of the conservation, development, utilization, and disposal of water or for fish and wildlife or recreational development and facilities or to purposes other than flood prevention and features relating thereto. (5) To make arrangements satisfactory to the Secretary of Agriculture of the United States or other agent or agency of the United States for defraying costs of operating and maintaining works of improvement and public fish and wildlife or recreational development and facilities in connection with works of improvement; provided, that such arrangements shall be based solely upon contributions, allotments or commitments of funds to the District or Commission. (6) To acquire, or provide assurance that landowners or water users have acquired, such water rights, pursuant to the law of the commonwealth or state applicable thereto, as may be needed in the installation and operation of the works of improvement and public fish and wildlife or recreational development and facilities in connection with works of improvement. (7) To cooperate with soil conservation districts in obtaining agreements to carry out recommended soil conservation measures and proper farm plans from owners of land situated in the drainage area above each retention reservoir to be installed with or without federal assistance. (8) To apply for and receive federal loans or advancements to finance the local share of costs of carrying out works of improvement and public fish and wildlife or recreational development and facilities in connection with works of improvement, and to submit a plan of repayment satisfactory to the Secretary of Agriculture or other agent or agency of the United States for any loan or advancement; provided, that such plan of repayment shall be based solely upon contributions, allotments or commitments of funds to the District or Commission.

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(9) To cooperate, and enter into agreements with, the Secretary of Agriculture of the United States or other agent or agency of the United States, and to do all other things required, not inconsistent with the provisions of this Compact and the laws of the Commonwealth of Pennsylvania and the State of West Virginia, to obtain maximum federal financial assistance for works of improvement and public fish and wildlife or recreational development and facilities in connection with such works of improvement. (B) To acquire within the District, land, easements, rights-of-way and other property rights as may be needed in connection with works of improvement and public fish and wildlife or recreational development and facilities in connection with such works of improvement and to make studies respecting, and to plan, construct, maintain and operate, works of improvement within the District and public fish and wildlife or recreational development and facilities in connection with such works of improvement. (C) To obtain options upon and to acquire, by purchase, exchange, lease, gift, grant, bequest, devise, eminent domain, or otherwise, any property, real or personal, or rights therein, for any of the purposes specified in this Article of the Compact; provided, that eminent domain proceedings shall be instituted and prosecuted in the manner and forms provided by the laws of the commonwealth or state in which the property or property rights proceeded against are situate; provided, however, that no property now or hereafter vested in or held by the Commonwealth of Pennsylvania or the State of West Virginia, or by any county, city, town, village, district, township, municipality or other political subdivision thereof shall be taken by the District without the consent of the commonwealth, state or political subdivision which owns the same. (D) To maintain, administer and improve any properties acquired, to charge fees for use of, and receive income from, such properties and to expend such income in carrying out the purposes and provisions of this Compact, and to lease any of its property or interests therein in accordance with the following provisions and requirements: the Board of Commissioners of the County of Ohio, West Virginia, the County Court of Marshall County, West Virginia, the Board of Commissioners of Greene County, Pennsylvania, and the Board of Commissioners of Washington County, Pennsylvania, shall each have the option of leasing from the Commission for such period as the lessee may specify all or any part of the works of improvement and the public fish and wildlife and recreational development and facilities in connection with works of improvement located within their respective counties upon the following terms and conditions:

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(a) That in each such lease the lessee in consideration thereof pay to the lessor the sum of one dollar ($1.00) and agree to fully maintain at its (the lessee’s) expense all works of improvement and all such development and facilities in connection therewith located within the county of the lessee in accordance with the requirements of the Watershed Protection and Flood Prevention Act of the 83rd Congress of the United States, Second Session, (Public Law 566), approved August 4, 1954, as from time to time amended, and all agreements and work plans made or formulated thereunder with respect to such works of improvement and such development and facilities in connection therewith located within the county of the lessee, and that for failure of the lessee to comply with such agreement, the lessor shall be given the right in the lease agreement to cancel the lease upon thirty days’ written notice to the lessee. (b) That any such lease not be inconsistent with the provisions, or impair the purposes, of this Compact. (c) That any such lease be approved by the Secretary of Agriculture of the United States or other federal agent or agencies having authority to extend approval under the provisions of said act and agreements and work plans made or formulated thereunder. In the event the Board of Commissioners or County Court of any one of the four counties named does not, within six (6) months from the completion of the works of improvement and all such development and facilities in connection therewith located in such county, elect in writing transmitted to the Commission to exercise the option given to it by the foregoing provisions, or in the event such option is exercised and the lease to such Board of Commissioners or County Court is subsequently cancelled because of violation of the provisions of the lease by the lessee, or in the event such option is exercised and the Board of Commissioners or County Court subsequently chooses not to renew its lease, the commissioners may lease all or any part of the works of improvement and all such development and facilities in connection therewith located within such county to any other lessee which the Commission may choose, and upon such terms as may be agreed upon; provided, a. That any such lease be approved by the Board of Commissioners or County Court of the county in which any part or all of the works of improvement and all such development and facilities in connection therewith are located. b. That any such lease not be inconsistent with the provisions, or impair the purposes of this Compact.

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c. That any such lease be approved by the Secretary of Agriculture of the United States or other federal agent or agencies having authority to extend approval under the provisions of said act and agreements and work plans made or formulated thereunder. d. The option of leasing in the Board of Commissioners of the County of Ohio, West Virginia, the County Court of Marshall County, West Virginia, the Board of Commissioners of Greene County, Pennsylvania, and the Board of Commissioners of Washington County, Pennsylvania, shall include the right to sublease on the same terms and conditions set out in this paragraph to any individual, corporation, municipal subdivision or municipal authority without the approval of the Wheeling Creek Watershed Protection and Flood Prevention Commission. (E) To enter into contracts and other arrangements with agencies of the United States, with persons, firms or corporations, including both public and private corporations, with the government of the state and the government of the commonwealth, or any department or agency of the United States, the state or the commonwealth, with governmental divisions, with soil conservation, drainage, flood control, soil erosion or other improvement districts in the state or the commonwealth, for cooperation or assistance in constructing, improving, operating or maintaining works of improvement within the District, and public fish and wildlife or recreational development and facilities in connection with works of improvement, or in preventing floods, damage from sediment deposited by floodwaters, or in clearance of stream beds, or in conserving, developing, utilizing and disposing of waters in the District, or for making surveys, investigations or reports thereof. (F) To apply for, receive and use grants-in-aid, donations and contributions from any source or sources, and to accept and use, consistent with the purposes of this Compact, bequests, devises, gifts and donations from any person, firm, corporation, state, commonwealth or agency or political subdivision thereof. (G) To do any and all things necessary or convenient for the purpose of promoting, developing and advancing the purposes of said District herein set forth, and in promoting, developing and advancing the recreational development and facilities incidental to the works of improvement that shall be constructed to achieve said purposes. (H) To delegate any authority given to it by law to any of its agents or employees, and to expend its funds in the execution of the powers and authority herein given.

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(I) The Commission, subject to the conditions herein, may sell, exchange or lease property, real or personal, or any interest therein. When the property, or any interest or right therein, is being held for future use, it may be leased. When the real property, or any part thereof, or any interest or right therein, is deemed by the Commission not necessary, or desirable for present or presently foreseeable future use, it may be exchanged for other property, or any interest or right therein, deemed by the Commission to be necessary or desirable for present or presently foreseeable future use, or may be sold. In addition the Commissioner may exchange real property, or any part thereof, or any interest or right therein, even though it may be desirable or necessary for present or presently foreseeable future use, if the exchange is made for other real property, or any interest or right therein, in close proximity thereto which the Commission deems of equal or superior value for presently foreseeable future use. In making exchanges the Commission may make allowances for differences in values of the properties being exchanged and may move or pay the cost of moving buildings, structures, or appurtenances in connection with the exchange. Every such sale of real property, or any interest or right therein or structure thereon, shall be at public auction in the county in which the real property, or the greater part thereof in value, is located, and the Commission shall advertise, by publication or otherwise, the time, place and terms of such sale at least twenty days prior thereto. The property shall be sold in the manner which will bring the highest and best price therefor. The Commission may reject any and all bids received at the sale. The Commission shall keep a record, open to public inspection, indicating the manner in which such real property, or any interest or right therein or structure thereon, was publicly advertised for sale, the highest bid received therefor and from whom, the person to whom sold, and payment received therefor. Such record shall be kept for a period of five years and may thereafter be destroyed. The Commission may insert in any deed or conveyance, whether it involves an exchange, lease or sale, such conditions as are in the public interest. All moneys received from the exchange, sale or lease of real or personal property, or any right or interest therein, shall be paid into the Commission’s treasury and used for the purpose for which the Commission was created. If the Commission has heretofore sold and conveyed away or leased any such property, such transactions and the documents of lease or transfer therefor are hereby approved and confirmed and shall be as effective as if the authority to lease or convey the said property had been given in this statute as originally enacted.

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ARTICLE VII. FISCAL AFFAIRS The Commission shall submit at the appropriate or designated time to the Board of Commissioners of the County of Ohio, West Virginia, the County Court of Marshall County, West Virginia, the Board of Commissioners of Greene County, Pennsylvania, and the Board of Commissioners of Washington County, Pennsylvania, an annual budget of its estimated expenditures, which budget shall contain specific recommendations of the amount or amounts to be appropriated by each of the named governing bodies. The Commission shall not incur any obligation prior to the commitment or allotment of funds by the named governing bodies or by other sources adequate to meet the same. The Commission shall keep accurate accounts of all receipts and disbursements, which accounts shall be open for inspection at any reasonable time and shall be subject to audit by representatives of contributing political subdivisions and of the Commonwealth of Pennsylvania and the State of West Virginia. The receipts and disbursements of the Commission shall be subject to the audit and accounting procedures established under its bylaws; provided, that all receipts and disbursements of the Commission shall be audited yearly by a qualified public accountant, and the report of the audit shall be transmitted to each contributor of funds to the District or Commission. ARTICLE VIII. EXEMPTION FROM TAXES AND FEES The District and the property belonging to the District shall be exempt from the payment of all taxes or fees imposed by the Commonwealth of Pennsylvania or the State of West Virginia and by any agency and political subdivision thereof. ARTICLE IX. EFFECTIVE DATE OF COMPACT This Compact shall become effective upon ratification by the General Assembly of the Commonwealth of Pennsylvania and the Legislature of the State of West Virginia and upon approval by the Congress of the United States.

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Appendix B-41: Yellowstone River Compact Public Law No. 82–231 65 Statutes at Large 663 (1951)

ARTICLE I A. Where the name of a state is used in this compact, as a party thereto, it shall be construed to include the individuals, corporations, partnerships, associations, districts, administrative departments, bureaus, political subdivisions, agencies, persons, permittees, appropriators, and all others using, claiming, or in any manner asserting any right to the use of the waters of the Yellowstone River system under the authority of said state. B. Any individual, corporation, partnership, association, district, administrative department, bureau, political subdivision, agency, person, permittee, or appropriator authorized by or under the laws of a signatory state, and all others using, claiming, or in any manner asserting any right to the use of the waters of the Yellowstone River system under the authority of said state, shall be subject to the terms of this compact. Where the singular is used in this article, it shall be construed to include the plural. ARTICLE II A. The state of Montana, the state of North Dakota, and the state of Wyoming are hereinafter designated as “Montana,” “North Dakota,” and “Wyoming,” respectively. B. The terms “commission” and “Yellowstone River compact commission” mean the agency created as provided herein for the administration of this compact. C. The term “Yellowstone River basin” means areas in Wyoming, Montana, and North Dakota drained by the Yellowstone River and its tributaries, and includes the area in Montana known as Lake Basin, but excludes those lands lying within Yellowstone National Park. D. The term “Yellowstone River system” means the Yellowstone River and all of its tributaries, including springs and swamps, from their sources to the mouth of the Yellowstone River near Buford, North Dakota, except those portions thereof which are within or contribute to the flow of streams within the Yellowstone National Park. E. The term “tributary” means any stream which in a natural state contributes to the flow of the Yellowstone River, including interstate tributaries and

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Appendix B tributaries thereof, but excluding those which are within or contribute to the flow of streams within the Yellowstone National Park.

F. The term “interstate tributaries” means the Clarks Fork, Yellowstone River; the Bighorn River (except Little Bighorn River); the Tongue River; and the Powder River, whose confluences with the Yellowstone River are respectively at or near the city (or town) of Laurel, Big Horn, Miles City, and Terry, all in the state of Montana. G. The terms “divert” and “diversion” mean the taking or removing of water from the Yellowstone River or any tributary thereof when the water so taken or removed is not returned directly into the channel of the Yellowstone River or of the tributary from which it is taken. H. The term “beneficial use” is herein defined to be that use by which the water supply of a drainage basin is depleted when usefully employed by the activities of man. I. The term “domestic use” shall mean the use of water by an individual, or by a family unit or household for drinking, cooking, laundering, sanitation and other personal comforts and necessities; and for the irrigation of a family garden or orchard not exceeding one-half acre in area. J. The term “stock water use” shall mean the use of water for livestock and poultry. ARTICLE III A. It is considered that no commission or administrative body is necessary to administer this compact or divide the waters of the Yellowstone River basin as between the states of Montana and North Dakota. The provisions of this compact, as between the states of Wyoming and Montana, shall be administered by a commission composed of one (1) representative from the state of Wyoming and one (1) representative from the state of Montana, to be selected by the governors of said states as such states may choose, and one (1) representative selected by the director of the United States geological survey or whatever federal agency may succeed to the functions and duties of that agency, to be appointed by him at the request of the states to sit with the commission and who shall, when present, act as chairman of the commission without vote, except as herein provided. B. The salaries and necessary expenses of each state representative shall be paid by the respective state; all other expenses incident to the administration of this compact not borne by the United States shall be allocated to

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and borne one-half by the state of Wyoming and one-half by the state of Montana. C. In addition to other powers and duties herein conferred upon the commission and the members thereof, the jurisdiction of the commission shall include the collection, correlation, and presentation of factual data, the maintenance of records having a bearing upon the administration of this compact, and recommendations to such states upon matters connected with the administration of this compact, and the commission may employ such services and make such expenditures as reasonable and necessary within the limit of funds provided for that purpose by the respective states, and shall compile a report for each year ending September 30 and transmit it to the governors of the signatory states on or before December 31 of each year. D. The secretary of the army; the secretary of the interior; the secretary of agriculture; the chairman, federal power commission; the secretary of commerce, or comparable officers of whatever federal agencies may succeed to the functions and duties of these agencies, and such other federal officers and officers of appropriate agencies of the signatory states having services or data useful or necessary to the compact commission, shall cooperate, ex officio, with the commission in the execution of its duty in the collection, correlation, and publication of records and data necessary for the proper administration of the compact; and these officers may perform such other services related to the compact as may be mutually agreed upon with the commission. E. The commission shall have power to formulate rules and regulations and to perform any act which they may find necessary to carry out the provisions of this compact, and to amend such rules and regulations. All such rules and regulations shall be filed in the office of the state engineer of each of the signatory states for public inspection. F. In case of the failure of the representatives of Wyoming and Montana to unanimously agree on any matter necessary to the proper administration of this compact, then the member selected by the director of the United States geological survey shall have the right to vote upon the matters in disagreement and such points of disagreement shall then be decided by a majority vote of the representatives of the states of Wyoming and Montana and said member selected by the director of the United States geological survey, each being entitled to one (1) vote. G. The commission herein authorized shall have power to sue and be sued in its official capacity in any federal court of the signatory states, and may adopt and use an official seal which shall be judicially noticed.

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ARTICLE IV The commission shall itself, or in conjunction with other responsible agencies, cause to be established, maintained, and operated such suitable water gaging and evaporation stations as it finds necessary in connection with its duties. ARTICLE V A. Appropriative rights to the beneficial uses of the water of the Yellowstone River system existing in each signatory state as of January 1, 1950, shall continue to be enjoyed in accordance with the laws governing the acquisition and use of water under the doctrine of appropriation. B. Of the unused and unappropriated waters of the interstate tributaries of the Yellowstone River as of January 1, 1950, there is allocated to each signatory state such quantity of that water as shall be necessary to provide supplemental water supplies for the rights described in paragraph (a) of this article V, such supplemental rights to be acquired and enjoyed in accordance with the laws governing the acquisition and use of water under the doctrine of appropriation, and the remainder of the unused and unappropriated water is allocated to each state for storage or direct diversions for beneficial use on new lands or for other purposes as follows: 1. Clarks Fork, Yellowstone River a. To Wyoming sixty percent (60%) To Montana forty percent (40%) b. The point of measurement shall be below the last diversion from Clarks Fork above Rock Creek. 2. Bighorn River (Exclusive of Little Bighorn River) a. To Wyoming eighty percent (80%) To Montana twenty percent (20%) b. The point of measurement shall be below the last diversion from the Bighorn River above its junction with the Yellowstone River, and the inflow of the Little Bighorn River shall be excluded from the quantity of water subject to allocation. 3. Tongue River a. To Wyoming forty percent (40%) To Montana sixty percent (60%) b. The point of measurement shall be below the last diversion from the Tongue River above its junction with the Yellowstone River.

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4. Powder River (Including the Little Powder River) a. To Wyoming forty-two percent (42%) To Montana fifty-eight percent (58%) b. The point of measurement shall be below the last diversion from the Powder River above its junction with the Yellowstone River. C. The quantity of water subject to the percentage allocations, in paragraph (b) (i), (ii), (iii) and (iv) of this article V, shall be determined on an annual water year basis measured from October 1st of any year through September 30th of the succeeding year. The quantity to which the percentage factors shall be applied through a given date in any water year shall be, in acre-feet, equal to the algebraic sum of: 1. The total diversions, in acre-feet, above the point of measurement, for irrigation, municipal, and industrial uses in Wyoming and Montana developed after January 1, 1950, during the period from October 1st to that given date; 2. The net change in storage, in acre-feet, in all reservoirs in Wyoming and Montana above the point of measurement completed subsequent to January 1, 1950, during the period from October 1st to that given date; 3. The net change in storage, in acre-feet, in existing reservoirs in Wyoming and Montana above the point of measurement, which is used for irrigation, municipal, and industrial purposes developed after January 1, 1950, during the period October 1st to that given date; 4. The quantity of water, in acre-feet, that passed the point of measurement in the stream during the period from October 1st to that given date. D. All existing rights to the beneficial use of waters of the Yellowstone River in the states of Montana and North Dakota, below Intake, Montana, valid under the laws of these states as of January 1, 1950, are hereby recognized and shall be and remain unimpaired by this compact. During the period May 1 to September 30, inclusive, of each year, lands within Montana and North Dakota shall be entitled to the beneficial use of the flow of waters of the Yellowstone River below Intake, Montana, on a proportionate basis of acreage irrigated. Waters of tributary streams, having their origin in either Montana or North Dakota, situated entirely in said respective states and flowing into the Yellowstone River below Intake, Montana, are allotted to the respective states in which situated.

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E. There are hereby excluded from the provisions of this compact: 1. Existing and future domestic and stock water uses of water: Provided, that the capacity of any reservoir for stock water so excluded shall not exceed twenty (20) acre-feet; 2. Devices and facilities for the control and regulation of surface waters. F. From time to time the commission shall reexamine the allocations herein made and upon unanimous agreement may recommend modifications therein as are fair, just, and equitable, giving consideration among other factors to: 1. Priorities of water rights; 2. Acreage irrigated; 3. Acreage irrigable under existing works; and 4. Potentially irrigable lands. ARTICLE VI Nothing contained in this compact shall be so construed or interpreted as to affect adversely any rights to the use of the waters of Yellowstone River and its tributaries owned by or for Indians, Indian tribes, and their reservations. ARTICLE VII A. A lower signatory state shall have the right, by compliance with the laws of an upper signatory state, except as to legislative consent, to file application for and receive permits to appropriate and use any waters in the Yellowstone River system not specifically apportioned to or appropriated by such upper state as provided in article V; and to construct or participate in the construction and use of any dam, storage reservoir, or diversion works in such upper state for the purpose of conserving and regulating water that may be apportioned to or appropriated by the lower state: provided, that such right is subject to the rights of the upper state to control, regulate, and use the water apportioned to and appropriated by it: and provided further, that should an upper state elect, it may share in the use of any such facilities constructed by a lower state to the extent of its reasonable needs upon assuming or guaranteeing payment of its proportionate share of the cost of the construction, operation, and maintenance. This provision shall apply with equal force and effect to an upper state in the circumstance of the necessity of the acquisition of rights by an upper state in a lower state.

Interstate Compacts

503

B. Each claim hereafter initiated for an appropriation of water in one (1) signatory state for use in another signatory state shall be filed in the office of the state engineer of the signatory state in which the water is to be diverted, and a duplicate copy of the application or notice shall be filed in the office of the state engineer of the signatory state in which the water is to be used. C. Appropriations may hereafter be adjudicated in the state in which the water is diverted, and where a portion or all of the lands irrigated are in another signatory state, such adjudications shall be confirmed in that state by the proper authority. Each adjudication is to conform with the laws of the state where the water is diverted and shall be recorded in the county and state where the water is used. D. The use of water allocated under article V of this compact for projects constructed after the date of this compact by the United States of America or any of its agencies or instrumentalities, shall be charged as a use by the state in which the use is made: provided, that such use incident to the diversion, impounding, or conveyance of water in one (1) state for use in another shall be charged to such latter state. ARTICLE VIII A lower signatory state shall have the right to acquire in an upper state by purchase, or through exercise of the power of eminent domain, such lands, easements, and rights-of-way for the construction, operation, and maintenance of pumping plants, storage reservoirs, canals, conduits, and appurtenant works as may be required for the enjoyment of the privileges granted herein to such lower state. This provision shall apply with equal force and effect to an upper state in the circumstance of the necessity of the acquisition of rights by an upper state in a lower state. ARTICLE IX Should any facilities be constructed by a lower signatory state in an upper signatory state under the provisions of article VII, the construction, operation, repairs, and replacements of such facilities shall be subject to the laws of the upper state. This provision shall apply with equal force and effect to an upper state in the circumstance of the necessity of the acquisition of rights by an upper state in a lower state. ARTICLE X No water shall be diverted from the Yellowstone River basin without the unanimous consent of all the signatory states. In the event water from another river basin shall be imported into the Yellowstone River basin or transferred from one (1) tributary basin to another by the United States of America, Montana, North Dakota, or

504

Appendix B

Wyoming, or any of them jointly, the state having the right to the use of such water shall be given proper credit therefor in determining its share of the water apportioned in accordance with article V herein. ARTICLE XI The provisions of this compact shall remain in full force and effect until amended in the same manner as it is required to be ratified to become operative as provided in article XV. ARTICLE XII This compact may be terminated at any time by unanimous consent of the signatory states, and upon such termination all rights then established hereunder shall continue unimpaired. ARTICLE XIII Nothing in this compact shall be construed to limit or prevent any state from instituting or maintaining any action or proceeding, legal or equitable, in any federal court or the United States supreme court, for the protection of any right under this compact or the enforcement of any of its provisions. ARTICLE XIV The physical and other conditions characteristic of the Yellowstone River and peculiar to the territory drained and served thereby and to the development thereof, have actuated the signatory states in the consummation of this compact, and none of them, nor the United States of America by its consent and approval, concedes thereby the establishment of any general principle or precedent with respect to other interstate streams. ARTICLE XV This compact shall become operative when approved by the legislature of each of the signatory states and consented to and approved by the congress of the United States. ARTICLE XVI Nothing in this compact shall be deemed: (a) To impair or affect the sovereignty or jurisdiction of the United States of America in or over the area of waters affected by such compact, any rights or powers of the United States of America, its agencies, or instrumentalities, in and to the use of the waters of the Yellowstone River Basin nor its capacity to acquire rights in and to the use of said waters;

Interstate Compacts

505

(b) To subject any property of the United States of America, its agencies, or instrumentalities to taxation by any state or subdivision thereof, nor to create an obligation on the part of the United States of America, its agencies, or instrumentalities, by reason of the acquisition, construction, or operation of any property or works of whatsoever kind, to make any payments to any state or political subdivision thereof, state agency, municipality, or entity whatsoever in reimbursement for the loss of taxes. (c) To subject any property of the United States of America, its agencies, or instrumentalities, to the laws of any state to an extent other than the extent to which these laws would apply without regard to the compact. ARTICLE XVII Should a court of competent jurisdiction hold any part of this compact to be contrary to the constitution of any signatory state or of the United States of America, all other severable provisions of this compact shall continue in full force and effect. ARTICLE XVIII No sentence, phrase, or clause in this compact or in any provision thereof, shall be construed or interpreted to divest any dignatory state or any of the agencies or officers of such states of the jurisdiction of the water of each state as apportioned in this compact. IN WITNESS WHEREOF the commissioners have signed this compact in quadruplicate original, one (1) of which shall be filed in the archives of the department of state of the United States of America and shall be deemed the authoritative original, and of which a duly certified copy shall be forwarded to the governor of each signatory state. Done at the city of Billings in the state of Montana, this 8th day of December, in the year of our Lord, one-thousand nine hundred and fifty.

Index Accord De Canas v. Bica, 424 U.S. 351 (1976), 90n123 ACF Basin Commission, 115; powers, 117–118 ACT Basin, 99, 112; Commission, 100, 101–103, 107 administration, compact: need for flexibility, 17 Administrative Procedure Act, 87, 94 Alabama-Coosa-Tallapoosa/ApalachicolaChattahoochee-Flint River Basin Comprehensive Water Resource Study, 106, 120–121 Alabama-Coosa-Tallapoosa River Basin Compact, xiv, 11n15, 32n38, 36n45, 49, 99–112; ACT Commission, 100, 101– 103, 107; dispute resolution, 107–111; funding, 107; public participation, 107; termination, 105–106; water allocation formula, 100, 106–107, 111; water quality, 112 allocation formulas, 100, 106, 111, 114, 118–119 American Bar Association, xv Animas-La Plata Project Compact, 113 Apalachicola-Chattahoochee-Flint River Basin Compact, xiv, 11n15, 32n38, 36n45, 49, 114–127; ACF Basin Commission, 115–118; dispute resolution, 122–126; enforcement, 126; funding, 122; public participation, 122; termination, 120; water allocation formula, 114–115, 118–119; water quality, 126 apportionment, 43–55; equitable, 9–10, 20, 54, 95, 99, 103, 114, 118; intrastate allocations, 45; methodology,

506

44–45. See also base apportionments; equitable distribution; supplemental apportionments; transfers of apportionments Arizona v. California, 373 U.S. 546 (1963), 5n1, 13n21, 46, 67 Arkansas River Basin Compact of 1965, 11n15, 128–136; commission, 128–129, 131, 133, 134–135; funding, 133; pollution abatement program, 128; termination, 135; water apportionment, 129–130 Arkansas River Basin Compact of 1970, 11n15, 137–145; commission, 137, 141–144; funding, 142, 144; water apportionment, 137, 139 Arkansas River Compact of 1949, 72, 146– 155; administration, 152–153; funding, 153; water apportionment, 146, 148–151 Arkansas v. Oklahoma, 503 U.S. 91 (1992), 60n87 Arkansas v. Oklahoma, 503 U.S. at 106 (2000), 61 base apportionments, 38–39, 43, 45–49; defined, 15 Bear River Compact, 156–171; commission, 160–161; termination, 171; water apportionment, 156, 164–169 Belle Fourche River Compact, 172–177; dam construction, 174–175; stock water use, 175; termination, 175; water allocation, 173–174 Boulder Canyon Project Act, 67 Bureau of Reclamation, 75

Index Canadian River Compact, 11n15, 178–182; commission, 178, 180–182; funding, 181; water allocation, 179–180 Chesapeake Bay Commission Agreement, 13n20, 183–188; budget, 186; commission powers and duties, 185– 186; organization, 184; termination, 187 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), 60n87 City of Milwaukee v. Illinois, 451 U.S. 304 (1981), 58 Clean Water Act, 1, 10, 21, 30, 56, 57, 58, 59, 59n85, 60n87, 61, 91n130, 92; compliance, 62n91, 103, 118; Total Maximum Daily Load (TMDL), 62 Coastal Zone Management Act of 1972, 36n47 Colorado River Compact, xiv, 10, 11, 13, 44, 47, 48, 49, 50, 68, 188–192; agricultural water use, 189; dispute resolution, 191; domestic water use, 189; perfected water rights, 191–192; termination, 192; water apportionment, 190–191 Colorado River Storage Project Act, 10, 49, 113 Colorado v. Kansas, 320 U.S. 383 (1943), 5n1, 146 Colorado v. New Mexico, 459 U.S. 176 (Vermejo I) (1982), 53 Colorado v. New Mexico, 467 U.S. 310 (Vermejo II) (1984), 53 Columbia River Basin, 27n27 Committee on Energy and Natural Resources, xiii Community-Service Broad. of Mid-America, Inc. v. FCC, 593 F.2d 1102 (D.C. Cir. 1978), 91n128 compact duration: sunset limitation, 11, 12 conflict resolution. See dispute resolution conjunctive use, 15, 18, 46, 64, 67–68

507

Connecticut River Flood Control Compact, 193–202; commission, 194–196; dam construction, 196–197, 200; funding, 202 consent clause, 11, 12. See also U.S. Constitution Cosens, Barbara, 77n106 Costilla Creek Compact (Amended), 29, 78, 78n107, 203–215; commission, 206; surplus water, 205, 213; water apportionment, 203, 207–208 Cuyler v. Adams, 449 U.S. 433 (1981), 89 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), 32n37 Davis, Ray Jay, 28n30, 31n36 Delaware River Basin Compact, 11, 13, 28, 34, 36n45, 66, 86n120, 95n142, 216–252; audit, 248–249; commission, 34, 35, 85, 220–222, 224–225, 244–252; duration, 220; flood protection, 229– 230; funding, 236–242; hydroelectric power, 232–233; pollution control, 228– 229; recreational use, 231–232; water allocation, 222–223; water resources program, 242 Derthick, Martha, 34n42 dispute resolution, xiv, 5, 10, 12, 15, 24, 31, 51, 53, 61, 70–71, 73–74. See also individual compacts Division of Scientific Analysis, 16, 19, 31–32, 87, 88; duties, 23­–24 Domenici, Pete V., xiii Edgar v. Mite Corp., 457 U.S. 624 (1982), 90n123 Emergency Supplemental Appropriations Act, 85n119 Endangered Species Act, 10, 23, 92, 93; compliance, 103, 118 environmental laws, xiii, xiv, 10, 36

508

Index

environmental protection, 1, 7, 25n25, 36

Garcia, Chris Nunn, xiv

Environmental Protection Agency (EPA), 56–57, 59, 60n87, 61, 75

gauging stations, 147, 157, 162, 173, 213, 280, 294, 364

equitable distribution, 5, 276, 292

governors, as commission members, 19, 27

Federal Administrative Procedures Act, 125 Federal Advisory Committee Act, 87, 94 Federal Energy Regulatory Commission, 34, 75

Great Lakes Basin Compact, 13n20, 253– 259; commission, 253–259 Hinderlider v. La Plata & Cherry Creek Ditch Co., 304 U.S. 92 (1938), 46

Federal-Interstate Compact Option, 32–37

Hinderlider v. LaPlata River and Cherry Creek Ditch Co., 304 U.S. 92 (1938), 91n129

Federal Land Policy and Management Act of 1976, 36n47

Hines v. Davidowitz, 312 U.S. 52 (1941), 90n123

federal law, 16, 33, 87–88, 89–95, 106–107

Hoover, Herbert, 11

federal representatives, as commission members, 19, 27, 32; as council members, 22 Federal Rules of Civil Procedure, 125 Federal Rules of Evidence, 125 Federal Water Pollution Control Act, 132, 140; amendments, 59. See also Clean Water Act Fish and Wildlife Coordination Act, 260 Fish and Wildlife Service, 75 Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810), 91n128 flood control, 6, 23, 64–65. See also individual compacts Flood Control Act of 1944, 260 flood plain zoning, 64–65, 230, 486 Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963), 90n123 Florida v. Mellon, 273 U.S. 12 (1927), 90 Fort Belknap Compact, 77n106 Frankfurter, Felix, 12 funding, 82–83; alternative, 84n115; cost-sharing agreements, 84. See also individual compacts

Idaho v. Oregon & Washington, 444 U.S. 380 (1980), 9 Idaho v. Oregon & Washington, 462 U.S. 1017 (1983), 53 indispensability issue, 9 Int’l Paper Co. v. Ouellette, 479 U.S. 481 (1987), 59n85 interstate water resources: equitable shares, 5; federal statutes affecting, 32n38; management, 3; quality, 3 Jennings Randolph Lake Project Compact, 11n15, 13n20, 260–266; recreational use, 262–263; state responsibilities, 263–264 Jones v. Rath Packing Co., 430 U.S. 519 (1977), 90n123 Kansas-Nebraska Big Blue River Compact, 267–275; administration, 267, 269– 270; state responsibilities, 270–271; termination, 275; water apportionment, 271–273; water quality control, 273–274 Kansas v. Colorado, 514 U.S. 673 (1995), 51

Index Kansas v. Nebraska, 530 U.S. 1272 (2000), 6n5, 51n67 Kansas v. Nebraska, 538 U.S. 720 (2003), 51, 52n68, 73 Kansas v. Nebraska, 540 U.S. 964 (2003), 52n68 Klamath River Basin Compact, 28, 276– 291; commission, 283–287; distribution of water, 277–279; federal rights, 288; hydroelectric power, 280; Indian rights, 287; measuring devices, 280; pollution control, 281–283; termination, 291 Knox, Kenneth W., 78n107 Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), 32n37 Landis, James, 12 La Plata River Compact, 25n24, 78n107, 294–296, 470; termination, 296; water allocation, 295 Law of the River, 10, 68 Louisville Bridge Co. v. United States, 242 U.S. 409 (1917), 11n16 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), 91n128 Maryland v. Louisiana, 451 U.S. 725 (1981), 10n11 McCarran Amendment, 10, 47 Merrimack River Flood Control Compact, 297–304; commission, 298–299; dam construction, 300, 302; dispute resolution, 303–304 Meyers, Charles, 47n56 Middlesex County Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1 (1981), 58n83 Minnis, Michele, xiv model compact: administration, 17; appeals process, 71; audit, 83, 86; base apportionments, 15, 38–39, 43, 45–49;

509

conjunctive use, 15; council, 22, 31; dispute resolution, 12, 15, 70–71, 74; Division of Scientific Analysis, 16, 19, 23–24, 31–32, 87, 88; duration, 11, 12; enforcement of compact obligations, 69–70, 72–74; federal restrictions, 32– 37; funding, 82–83, 84–86; individual party withdrawal, 12, 14; interagency coordination, 75, 77–79, 77n106; interstate water allocation, xiii, 6, 38–55; perfected water right, 16, 43, 46–47; periodic review, 12; public participation, 78, 79–81; reasonable beneficial use, 16, 52, 54; relationship to existing law, 87–88, 89–95; reporting, 76, 78; safe annual yield, 16, 43; subsurface water, 16; supplemental apportionments, 16, 39–40, 49; Water Quality Protection Program, 16, 20, 22, 23, 31; Water Resources Management Program, 16, 20, 21, 22, 23, 31. See also Utton River Basin Compact Murray-Darling Basin, 25–26, 25n25; Agreement, 25, 26, 61; Ministerial Council, 26 National Environmental Policy Act, 87, 94, 260; compliance, 103, 118 National Marine Fisheries Service, 75 National Oceanic and Atmospheric Administration, 75 National Pollution Discharge Elimination System (NPDES) permits, 56, 59, 60n87, 61 National Water Commission, 33 Natural Gas Act, 10n11 Nebraska v. Wyoming, 325 U.S. 589 (1945), 5n1, 46n54, 53 Nebraska v. Wyoming, 534 U.S. 40 (2001), 73 New England Interstate Water Pollution Control Compact, 91n130, 305–307; commission, 305; water quality, 306– 307

510

Index

New Hampshire-Vermont Interstate Sewage and Waste Disposal Facilities Compact, 309–311; funding, 310; water quality, 311 New Hampshire v. Maine, 426 U.S. 363 (1976), 11n18 New Jersey v. New York, 347 U.S. 995 (1954), 95n142, 224 New Jersey v. New York, 523 U.S. 767 (1998), 89 New York v. New Jersey, 256 U.S. 296 (1921), xiii, 5n1 NPDES. See National Pollution Discharge Elimination System Ohio River Valley Water Sanitation Compact, 91n130, 312–316; commission, 312–314; pollution, 312, 314, 315–316 Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508 (1941), 90 Oklahoma v. New Mexico, 501 U.S. 221 (1991), 5n1 Outer Continental Shelf Lands Act, 37n48 Pacific Northwest Electric Power Planning and Conservation Act, 94 Pecos River Compact, 72, 89n121, 317–325; commission, 320–322; flood waters, 318–319, 323; termination, 324; water allocation, 318, 322–323 Percival, Robert V., 59n85, 60n87 perfected water right, 16, 43 Potomac River Basin Interstate Compact, 13n20, 91n130, 326–330; commission, 326–329; funding, 330 public participation, 29n32, 75–76, 77–81, 86. See also individual compacts Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978), 90n123

reasonable beneficial use, 16, 52, 54 Reclamation Act of 1902, 52 Red River Compact, 331–349; commission, 344–346; flood control, 332; pollution, 347–348; termination, 348; water apportionment, 333–334, 335–344 Red River of the North Compact, 350–354; commission, 350–353 Republican River Compact, 51, 52, 355–361; administration, 359; water allocation, 356–358 Rio Grande Compact, 52, 362–373; commission, 369, 371; gauging stations, 364; water allocation, 364–371 Rivers and Harbors Act of 1899: compliance, 103, 118 Riverside Irrigation District, 92 Riverside Irrigation Dist. v. Andrews, 568 F. Supp. 583 (D. Colo. 1983), 92n131, 94 Riverside Irrigation District v. Stipo, 658 F.2d 762 (10th Cir. 1981), 92n131, 94 Sabine River Compact, 28, 374–383; administration, 379–382; stateline flow, 375, 383; stock water use, 375; water apportionment, 376–378 safe annual yield, 16, 38, 43, 46–47 Safe Drinking Water Act, 36n47 severability, 112, 127 Snake River Compact, 28, 384–391; administration, 387; dispute resolution, 387; reservoir construction, 389–390; rights of states, 387–389; water allocation, 385–386 South Platte River Compact, 91–92, 392–399; gauging stations, 392–393; termination, 398; water apportionment, 393–398 sovereign immunity: waiver of U.S., 7, 9–10. See also McCarran Amendment sovereign parity, 45, 47

Index sovereignty, 13; of Indian tribes, 27; of states, 25n25 state law, 87–88, 89–95 state representatives, as council members, 22 stream flow maintenance, 38, 40, 43, 45, 49, 63–64, 69 Street v. United States, 133 U.S. 299 (1890), 91n128 subsurface water use, 6, 16, 21, 41, 51–52, 63 sunset provision, 11, 12. See also compact duration supplemental apportionments, 16, 39–40, 43 Susquehanna River Basin Compact, 11, 13, 28, 35, 66, 86n120, 400–438; audit, 434–435; budget, 428–430; commission, 85, 405–412, 430–438; duration, 404; financing, 423–428; flood protection, 415–417; hydroelectric power, 419–420; organization, 405; recreation, 417–418; water quality management, 413–415; water regulation, 420–421; watershed management, 417; water supply, 412–413 Tarlock, Dan, 77n106 Tennessee River Basin Water Pollution Control Compact, 13n20, 91n130, 439–445; commission, 439–443 termination of compacts, 7, 9, 12, 87, 94. See also individual compacts Texas v. New Mexico, 352 U.S. 991 (1957), 9 Texas v. New Mexico, 462 U.S. 554 (1983), 89 Texas v. New Mexico, 494 U.S. 111 (1990), 72 Thames River Flood Control Compact, 446–451; commission, 446–447; dam construction, 447–450

511

Thorson, John, 81, 84n115 TMDL. See Total Maximum Daily Load Tobin v. United States, 306 F.2d 270 (1962), 91n129 Total Maximum Daily Load (TMDL), 62; defined, 62n90. See also Clean Water Act transfer of pollution allowances, 56 transfers of apportionments, 40, 50; interbasin, 50 tribal law, 87–88, 89–95 tribal representatives: as commission members, 19, 27; as council members, 22 Tri-State [Sanitation] Compact, 91n130, 452–460; commission, 454–455; Interstate Environmental District, 452– 453; pollution, 452, 457–458; sewage treatment, 455–456 U.S. Army Corps of Engineers, 64, 75, 92, 107, 121, 154, 261, 265, 271 U.S. Bureau of Reclamation, 271 U.S. Constitution: cited, 11n17, 89n122; compact clause, xiii, 1, 11–12; congressional consent requirement (consent clause), 11, 12; Supremacy Clause, 89 U.S. Geological Survey, 75, 154, 173, 214, 280 U.S. Supreme Court, 6, 88; position on interstate conflicts, xiii, 1, 53, 89. See also individual court cases United States Trust Co. of N.Y. v. New Jersey, 431 U.S. 1 (1977), 91n128 University of New Mexico School of Law, xiii Upper Colorado River Basin Compact, 28, 461–477; commission, 465, 466–469; water apportionment, 463–466, 470– 475

512

Index

Upper Niobrara River Compact, 478–483; administration, 479; ground water, 481– 482; water apportionment, 479–481 Utton Center, xiii–xiv, xv; Advisory Committee, xiv, 3, 6, 12, 15, 27n27, 52, 96–98 Utton River Basin Commission, 7, 67; Advisory Committee, 75–76, 79; broad powers, 19–22, 28–31; members, 19, 27–28; organization of, 19–37 Utton River Basin Compact: effective date and duration, 7–14; purpose, 5 Vermejo River dispute, 53, 54. See also Colorado v. New Mexico Vermont-New Hampshire Interstate Public Water Supply Compact, 11n15 Vermont v. New York, 417 U.S. 270 (1974), 5n1 Virginia v. Tennessee, 148 U.S. 503 (1893), 11n18 Wabash Valley Compact, 13n20, 484–489; commission, 484–489; finances, 486 water quality, xiii, 3, 112, 126; monitoring, 21; standards, 56, 60

Water Quality Protection Program, 16, 20, 22, 23, 31, 56–62 water resource allocation: compacts, xiii, 6, 34; formulas, 100, 106, 111; quantitative shares, xiii. See also individual compacts water resource management, 1, 3 Water Resources Management Program, 16, 20, 21, 22, 23, 31, 63–68; conjunctive use, 64, 67–68; flood control, 64–65; water supply and requirements, 63 Western Water Policy Review Advisory Commission, 67–68 Wheeling Creek Watershed Protection and Flood Prevention District Compact, 490–498; commission, 491–497; fiscal affairs, 498 Wyoming v. Colorado, 259 U.S. 419 (1922), 53 Yellowstone River Compact, 28, 499–507; commission, 500–501; termination, 506; water allocation, 500, 502–503, 505– 506; water appropriation, 504–505

Model Interstate Water Compact

Muys

Model Interstate Water Compact

Jerome C. Muys George William Sherk Marilyn C. O’Leary

Sherk O’Leary

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