SPEAKERS CONTENTS INSERTS
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2002
ALABAMA-COOSA-TALLAPOOSA RIVER BASIN
COMPACT AND THE APALACHICOLA-CHATTA-
HOOCHEE AND FLINT RIVER BASIN COMPACT
HEARING
BEFORE THE
SUBCOMMITTEE ON
COMMERCIAL AND ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
DECEMBER 19, 2001
Serial No. 54
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Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman
HENRY J. HYDE, Illinois
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
LINDSEY O. GRAHAM, South Carolina
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL E. ISSA, California
MELISSA A. HART, Pennsylvania
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JEFF FLAKE, Arizona
MIKE PENCE, Indiana
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on Commercial and Administrative Law
BOB BARR, Georgia, Chairman
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JEFF FLAKE, Arizona, Vice Chair
GEORGE W. GEKAS, Pennsylvania
MARK GREEN, Wisconsin
DARRELL E. ISSA, California
STEVE CHABOT, Ohio
MELISSA HART, Pennsylvania
MELVIN L. WATT, North Carolina
JERROLD NADLER, New York
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
MAXINE WATERS, California
RAYMOND V. SMIETANKA, Chief Counsel
SUSAN JENSEN-CONKLIN, Counsel
ROBERT NEIRA TRACCI, Counsel
STEPHANIE MOORE, Minority Counsel
C O N T E N T S
DECEMBER 19, 2001
OPENING STATEMENT
The Honorable Bob Barr, a Representative in Congress From the State of Georgia, and Chairman, Subcommittee on Commercial and Administrative Law
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The Honorable Melvin L. Watt, a Representative in Congress From the State of North Carolina, and Ranking Member, Subcommittee on Commercial and Administrative Law
WITNESSES
The Honorable Newt Gingrich, chief executive officer, The Gingrich Group
Oral Testimony
The Honorable Lindsay Thomas, Federal Commissioner, Alabama-Coosa-Tallapoosa and Apalachicola-Chattahoochee-Flint River Basin Commissions
Oral Testimony
Prepared Statement
Mr. Jerome C. Muys, Esq., president, Muys & Associates
Oral Testimony
Prepared Statement
Mr. George William Sherk, Esq., attorney-at-law
Oral Testimony
Prepared Statement
APPENDIX
Material submitted for the record
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ALABAMA-COOSA-TALLAPOOSA RIVER BASIN COMPACT AND THE APALACHICOLA-CHATTAHOOCHEE AND FLINT RIVER BASIN COMPACT
WEDNESDAY DECEMBER 19, 2001
House of Representatives,
Subcommittee on Commercial
and Administrative Law,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 10:28 a.m., in Room 2141, Rayburn House Office Building, Hon. Bob Barr [Chairman of the Subcommittee] presiding.
Mr. BARR. I would like to convene this hearing of the Subcommittee on Commercial and Administrative Law to consider matters and receive testimony relating to the Alabama-Coosa-Tallapoosa, Apalachicola-Chattahoochee and Flint River Basin Compacts.
We are pleased today to conduct our first hearing on the progress of the ACT and ACF River Basin Compacts, as they are commonly known by their acronyms. These two compacts accomplished commissions involving the States of Georgia, Florida and Alabama which entrusted them with the development of a water resource allocation plan for the Alabama-Coosa-Tallapoosa and the Apalachicola-Chattahoochee and Flint River Basins.
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The two compacts were approved by the Congress in 1997 pursuant to article 1, section 10 of the U.S. Constitution, which provides that no State shall without consent of Congress enter into any agreement or compact with another State or with a foreign power. The Constitution mandates congressional authorization so that Federal interests and those of other States will be considered and protected.
Proper utilization and allocation of water resources at the river basins in question is vital to the economic life and development of the entire region. Accordingly, cooperation among Alabama, Florida and Georgia is essential if a fair and reasonable allocation is to be achieved.
Without a cooperative effort, wasteful litigation would appear to be inevitable, the type of litigation which the Supreme Court has repeatedly tried to discourage and the type of litigation that is guaranteed to drag on for years, if not decades, with no one being the better for it.
This Subcommittee has jurisdiction over interstate compacts. While fostering and effectuating agreement among States and examining the impact of such agreements on Federal interests as our primary role, inevitably we become involved in the facts and issues that have led the States to seek an agreement in the first place.
During the last Congress, for example, the Subcommittee labored long and hard to help settle the boundary between Texas and Oklahoma, a boundary that had not been completely settled since the Louisiana Purchase and the subsequent admission of Texas and Oklahoma to the Union.
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We also helped to resolve questions concerning the boundary between South Carolina and Georgia along the Savannah River, a boundary in dispute since the Revolutionary War. We have considered the issue of compacts involving the sale of dairy products, the establishment of cross-border police, public safety and transportation authorities, as well as a myriad of other issues involving the interests of several States.
While an agreement between States as to what their common interests are is essential, an equally important role is for the Congress to determine that an agreement between the States neither disadvantages States nor adversely affects Federal interest.
We are pleased to receive testimony today from a truly distinguished panel of witnesses. They will provide us with a comprehensive perspective on the original intent behind the ACF and ACT compacts, how that intent is being implemented by the States and the Federal Government and the general principles which the Supreme Court has employed in examining water resource utilization issues during the past decades.
Having approved compacts, the Subcommittee takes a special interest in seeing how they are implemented, particularly with respect to any such as these that has a major impact on so large a region as the two that are the subject of today's hearing.
As an ardent believer in States' rights, it is also a concern of mine, and I am sure shared by all Members of this panel, that States' rights be accompanied by an equal acceptance of States' responsibility. Chief of these responsibilities is to work in good-faith cooperation with one another and to recognize the overlay and supremacy of Federal law.
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Now I would like to recognize the distinguished Ranking Member, Mr. Watt, from North Carolina.
Mr. WATT. Thank you, Mr. Chairman. I will be brief.
During the 9 years that I have been here in Congress, first under the speakership of Speaker Foley and then under the speakership of the distinguished gentleman from Georgia, Speaker Gingrich, and now under the speakership of Speaker Hastert, I have come to understand the amazing nature of this institution that we work in, and one of the amazing things about it is the protocols and prerogatives that being in the majority has and the responsibilities that go with being in the minority, also.
One of those prerogatives of the majority and of Chairs of Committees and Subcommittees is to have a hearing about whatever they want to have a hearing about, and you find out pretty quickly that, as the Ranking Member of a Committee, that your job is to try to show up and be helpful to the Chair if it is something that is important to the Chair. So I am here kind of in that role. I don't know a lot about what this hearing is about, but I do know that if North Carolina and South Carolina and Tennessee were involved in a similar compact, it would be very important to me. And I do know that, because this involves Georgia and surrounding States, it must be important to the Chair, and therefore it is important to the Ranking Member of this Committee.
So I want to thank the Chairman for exercising his prerogative, thank the former speaker for teaching me some of these protocols and things that go with serving in this institution and certainly welcome him, as I do the other Members. And I look forward to even learning how to pronounce some of the names of these rivers and basins during the course of this hearing and learning something about it. I am sure it is something that at some point we will get a chance to replicate somewhere else, and that is what this great United States is all about.
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Happy to yield back to the Chair.
Mr. BARR. I thank the distinguished Ranking Member for his kind and constructive remarks.
The distinguished gentleman from Pennsylvania, the former Chairman of this Subcommittee, Mr. Gekas.
Mr. GEKAS. I thank the Chair.
We welcome all the panelists, of course, but Mr. Muys and Mr. Sherk will understand if we make special comments about our former colleagues sitting with you at the witness table.
I want the whole world to know that I consider Newt Gingrich a Pennsylvanian, since he and I were born in the same hospital on the same floor but 13 years apart. He is much older than I am.
But the important thing here is that we have former Georgia legislators who now join the record for that already made back in 1997 by the then current legislators like the Chairman of this Subcommittee, Mr. Barr. I must tell you that at the time we held that original hearing, I thought the matter was closed, and I am a little bit surprised that we are back here again to review some of the same tenets which were obviously important back then. So I will wait to hear what went wrong or why we are here tying up loose ends and hope that the outcome this time is more favorable than we encountered last time.
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I yield back the balance of my time.
Mr. BARR. I thank the distinguished former Chairman and would refer him to the case of Jarndyce v. Jarndyce found in the opening pages of Bleak House for a parallel which we hope will not be replicated in this case.
The distinguished gentleman from Ohio, Mr. Chabot.
Mr. CHABOT. Thank you, Mr. Chairman. I will be very brief.
Mr. Speaker, we were not born in the same city or the same hospital, but, nonetheless, it was an honor to have served under your speakership for a number of years; and I certainly appreciate, as many of you did at the time and continue to, your devotion to this country and your leadership during those years. It was exemplary, and I just want to thank you for your service to your country and look forward to hearing your testimony here this morning.
Thank you.
Mr. BARR. Thank you. I would like to now introduce, although they need no introduction, introduce our very distinguished, indeed, world-class panel here today.
Our first witness will be the Honorable Newt Gingrich. Mr. Gingrich was first elected to the U.S. House of Representatives in 1978 from the great State of Georgia. In 1995, Mr. Gingrich was elected Speaker of the House, a capacity which he served with distinction until late 1998. Mr. Gingrich earned a master's degree and a Ph.D. from Tulane University. From 1970 to 1978, Mr. Gingrich taught history and environmental studies at West Georgia College in Carrollton, Georgia.
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Speaker Gingrich has been intimately involved in the formulation of the ACT and ACF compacts and presided over marathon negotiations with State and Federal officials and outside stakeholders that ultimately produced the delicate compromises represented in both compacts.
Mr. Gingrich currently heads the Gingrich Group, which was established to develop strategic initiatives with national and global employers on a broad range of economic issues, including issues related to health and health care, the environment, information systems, international finance, international relations and trade.
Mr. Gingrich is also a member of the congressionally chartered National Strategic Study Group. He is a senior fellow at the Hoover Institution and at the American Enterprise Institute and serves on a number of corporate and charitable boards.
It is an honor to have you with us today, Mr. Speaker.
Our next witness will be Lindsay Thomas, who currently serve as the Federal Commissioner for the ACF and ACT River Basin Commissions. Mr. Thomas represented Georgia's first congressional district from 1983 to 1993. He graduated from the University of Georgia in Athens, served in the Georgia National Guard and was an investment banker and farmer before being elected to the Congress.
Mr. Thomas, it is an honor to have you here as a former colleague and as a friend and certainly as somebody who is perhaps as knowledgeable as anybody regarding the—certainly the Federal interests and the Federal framework within which these compacts have been negotiated and are in the process of being implemented. We appreciate your taking time to be with us today.
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Our third witness will be Jerome Muys. Mr. Muys is a graduate of Princeton University and Stanford Law School and has practiced public land, water resources and environmental law since 1959. He is past chairman of the American Bar Association Section of Natural Resources, Energy and Environmental Law and is currently chairman of the Water Law Committee of the International Bar Association's Energy and Resources Law Section.
Mr. Muys has taught natural resources law at the University of Virginia Law School and at George Washington University Law Center. Mr. Muys has had extensive experience in Federal and State water resources matters. He has been involved in litigation involving State, Federal and private environmental claims representing western water resources allocation, has served as the California Deputy Attorney General and has published a number of law review and a number of academic papers in this field.
We are honored to have your very unique and expansive expertise with us today, Mr. Muys. Thank you for joining us.
Our fourth and final witness will be George William Sherk. Mr. Sherk obtained his bachelor's and master's degrees from Colorado State University and his law degree from the University of Denver College of Law. Mr. Sherk is currently a research scientist for the Center for Risk Science and Public Health at the Department of Environmental and Occupational Health at the George Washington University and practices law in Alexandria, Virginia. Mr. Sherk is also a professional lecturer at the George Washington University School of Engineering and Applied Science and served as a trial attorney in the Environmental and Natural Resources Division of the U.S. Department of Justice from 1984 to 1990.
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Mr. Sherk has published a number of scholarly articles and books concerning natural resources issues, and he currently serves as vice chair of the American Bar Association's Marine Resource Committee Section of Natural Resources, Energy and Environmental Law.
Mr. Sherk, we are very familiar with your extensive work, not just on these matters generally but especially as they relate to the ACF and ACT compact issues, and we appreciate your taking time from your also very busy schedule to share your expertise with us.
We will now turn to the witnesses themselves to introduce into the record such testimony as they think is important for the Subcommittee's deliberations. We will keep the record open, counsel, for 7 days to receive any additional materials that any Member of the Subcommittee or any of the witnesses deems might be useful for the Subcommittee's further work in this area.
We would ask the witnesses to do their best to limit their prefatory and opening remarks to 5 minutes. Whatever statements they wish to be submitted will be submitted in their entirety after each of the witnesses has had an opportunity to make their opening statement. We will then open the floor on the Subcommittee in 5-minute increments for Members to ask questions.
Mr. BARR. We are honored to begin the process today with Speaker Gingrich.
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STATEMENT OF THE HONORABLE NEWT GINGRICH,
CHIEF EXECUTIVE OFFICER, THE GINGRICH GROUP
Mr. GINGRICH. Well, first let me thank the Chair for calling this hearing and for giving us an opportunity to talk about something which I think is extremely important to the people of Georgia, Alabama and Florida and also to all of the citizens of the United States for reasons I will make clear.
Let me also just reassure my good friend from North Carolina that in the 16 years I spent in the minority, part of them as Ranking Member, I had very similar educational experiences, and so I totally appreciate a North Carolinian being willing to spend time on what may look like a southeastern problem below your State.
But one of the reasons this was such an important effort on our part was because we did believe it was possible to create a model for river basin management between three States. And I must say—and this has no reflection on either Mr. Thomas or anybody else or the commissioners or the States—but the original ideas, which were captured in a letter I submit for the record that I sent to Martin Lancaster, Assistant Secretary of the Army for Civil Works on January 11, 1997, illustrates clearly what our hope had been.
Our hope had been that the three States would engage in a scientific process, that, in fact, we were quite clear we hoped that the University of Florida system, the University of Georgia system and the University of Alabama system would jointly create, with some help from the Federal Government, the kind of scientific approach to the water basins, the kind of information database, the kind of modelling that would in fact give us a scientific basis for assuring some key public values.
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It was also our intent—as is made very clear in that letter—for the Federal commissioners and the Federal Government to be intimately involved in the entire process, including the development of proposals, and not to simply be the recipient of State political maneuvering.
And let me say as a retired former Member, now speaking as a public citizen rather than from the Government standpoint, I think the three States have consistently fallen below the mark. I think this is—this entire process has been a process of politicians seeking to protect development, seeking to protect the interest of each State in a parochial manner.
It is tragic, because, first of all, the entire country has an interest in the productivity of Apalachicola Bay, not just Florida. The entire country has an interest in States working together, as all of you know. The California, Arizona problems on the Colorado River are fully as complex and difficult as the challenges in the Southeast. In fact, because of our rainfall, the East has had much less of a problem with water than the West, and we were hoping to avoid litigation.
I asked—this compact in its origin was developed in my office literally, as Chairman Barr knows, because Governor Miller called me prior to a briefing and said this would be really important and helpful if we could get an agreement. I was having a meeting with the representatives of the State of Georgia who were representing the States of Florida and Alabama as well and the Federal Government to be told by the various Federal agencies why we would not get an agreement. This was in 1997.
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After listening to them on a Saturday morning, I repeated back to them the four problems that they said we had hit; and I said, ''Well, if that is the definable four, we should be able to solve this.'' And at two o'clock the next morning, partly with substantial help from the Clinton White House which enabled us to track through the White House operators every Federal official we needed literally until 2 in the morning to get sign-off, we were able to hammer out the beginnings of this compact.
Now, our goal in doing that was to try to create a model and to avoid litigation, which is something I believe that Commissioner Thomas and I agree on, which—and I wanted to just cite the—Patrick Burns was my staffer who helped develop this. He stayed with it the whole time while I was in office, and he wrote me a memo to remind me of some of the key considerations.
Litigation, which is the only rational alternative to this, has a track record of automatically ending up in the Supreme Court. Some water litigation in the West ranges between 10 and 30 years. The longest Western water litigation is currently in its 50th year. Now, that is not a way to solve public policy problems; and I just want to say I came here today to commend Chairman Barr for being willing to work on this, to commend Commissioner Thomas and his co-commissioners for the time they put in as citizens far beyond any possible compensation or public honor and to appeal to the three States to get back on track with a scientifically based approach, to use the right kind of modeling and to understand that there is a very simple set of principles here.
Apalachicola Bay has to receive enough water not to be in a catastrophe; the States of Georgia and Alabama have to agree to deliver that water in a quality which preserves the Bay; and we then have to look at the Atlanta metropolitan area, which is the largest consumer of water, in that context.
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And I would start by saying that the disgraceful—and I use this word deliberately—the disgraceful mismanagement of water and sewage by the City of Atlanta is a prime reason that no one downstream ever feels comfortable relying on good will, and I attended my first—as a minority Member, I attended my first hearing on Atlanta mismanagement of the water system in 1981, chaired by then Democratic Member Elliott Levitas, and this has been an ongoing process. So I would say the Atlanta region is going to have to think through what does it have to do to reuse water, what does it have to do to be efficient with water and to understand that, in a drought year, you cannot design a 50-year plan which is going to say in a drought year we are going to destroy Apalachicola Bay.
I would say to Florida, it is to their advantage to come out in public, share the information and work together, because litigation is to the disadvantage of both the citizens of the United States and the citizens of all three States.
Finally, I would commend the Chairman, because if you note in my letter to Chairman Lancaster and I think the—to Secretary Lancaster, rather—and I think this was a point you made several times recently, Mr. Barr—this legislation emphasizes the full participation of Federal agencies during the development of the allocation formula. Federal agencies must have equal participation in all technical working groups and meetings in which the terms and conditions of the allocation formula are negotiated. And we also go on to say that there will be input from the interested public.
So I think this is a complex process. I commend the commissioners for the work they have done. I am, frankly, more than discouraged by the State's behavior on a parochial basis. I think it is very short-sighted, and I would reemphasize this is an American Federal issue of interest to the Federal Government and a totally appropriate topic for this Subcommittee to hold a hearing on.
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Mr. BARR. Thank you very much, Mr. Speaker.
I am reminded once again of Jarndyce v. Jarndyce, and we may have already exceeded that with some of the Western cases. I had forgotten that they dragged on for 50 years. But it truly is one of our goals in this Subcommittee to try and avoid that and try and identify some of the problems that have cropped up that have given rise to what has happened or hasn't happened so far.
[No prepared statement was submitted for this hearing by Mr. Gingrich.]
Mr. BARR. But I agree with you, Mr. Speaker, that one of the bright lights in this process is the work of our next witness, the Honorable Lindsay Thomas, who is our Federal Commissioner and is playing an increasingly important and, I think, positive role in the negotiation between the three States in ensuring that all Federal interests are adequately represented and addressed.
Mr. Thomas.
STATEMENT OF THE HONORABLE LINDSAY THOMAS, FEDERAL COMMISSIONER, ALABAMA-COOSA-TALLAPOOSA AND APALACHICOLA-CHATTAHOOCHEE-FLINT RIVER BASIN COMMISSIONS
Mr. THOMAS. Thank you, Mr. Chairman. I am pleased to have the opportunity to appear before the Committee today as a Federal——
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Mr. BARR. Is your speaker on, Lindsay?
Mr. THOMAS. Sorry. Now I have it engaged. Thank you. Let me go back.
I am pleased to have this opportunity, Mr. Chairman—and thank you for your opening comments—to appear before the Committee today as Federal Commissioner of the ACT and ACF River Basin Compacts.
I want to stress, though, from the very start that in no way do I see myself as the final authority on these matters that we will be discussing but that I work with a very capable group of Federal employees and the Federal Commissioner Pete Conroy, who is with us today, who comprise the Federal team. So my response to your question and, for that matter, any statement that I make here today will be founded on the basis of the knowledge and the understandings reached through this group's effort.
The task before us is tremendous, both in scope and in complexity, how to share and steward wisely the surface waters of the confluence of nearly 40,000 square miles of Southeastern river basins. Nothing of this scope has ever been accomplished east of the Mississippi, to my knowledge, but I can assure the members of this panel it will not be the last challenge of this nature, whether we succeed or fail.
Inevitably our need for water for our people and our commerce is going to continue to grow. Neither can happen without water, and the simple truth is we don't manufacture or create one gallon or one ounce of water. We can only manage what is provided to us from the rain that falls on our watershed and is delivered into our basins and streams and aquifers.
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Now, this would be much easier, I admit, if we were only apportioning the water, but if we are responsible in the actions that we take, the apportioning and the sharing and managing must be in balance with the needs of the natural resources within the life-sustaining confluences of these vast basins that are amongst the most priceless vestiges of the world that we have inherited and this continent of America that we live on. 40,000 square miles of complex living systems, shared by three sovereign States, influenced by weather and growth and development and commerce and everything that happens within, and that is dependent upon the waters contained therein, three sovereign States, vital Federal concerns and needs, numerous congressional districts, numerous stakeholders of varying perspective and the vicissitudes of weather and rainfall patterns. Do I need to add political considerations as other influences?
Three governors must turn to the people of their States and say, I made the right decision for you and for future generations and our resources. Numerous Members of Congress feel the same sense of responsibility on this matter and rightly so.
The context that led to the formation of the compacts aren't going to go away, even if the rains are more bountiful than ever. We will either settle the challenge through the cooperative structure of the compacts, or we will fight over these compacts in the courts for—these conflicts in the courts for what will be certainly years to come. A holistic and comprehensive plan for responsible usage and stewardship, or a legal battle that leaves most of us with longstanding knowledge and vested interest on the sidelines, those are the hard choices.
The fact that these compacts exist at all is evidence of the importance of these matters. They are a product of both State and Federal law and interstate cooperation, along, I might add, with the vital influence of one of the very members of this panel. Perhaps the fortunate timing itself smiled greatly upon this event as it unfolded. As most of us in this room, I am aware of the many accounts of the gentle persuasion of the gentleman from Georgia when the final details of this compact were being delicately put into place.
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I look forward to your questions, Mr. Chairman, and to those of other Members of the Committee, and for the sake of time I will conclude very quickly, but here is my heartfelt message to the members of this panel. It is in the best interest of not only the States involved but the national interest as well that we reach a negotiated settlement. Although the process provided might not be perfect, I believe it can lead us to the success that is so badly needed; and by that I mean success for all of the sovereign parties and all of the environmental and economic and social interests that hang in the balance.
Can we do better than we have done, both from a Federal and State perspective? I have no doubt that we should try it, but we have come a long way, and we are doing better on all fronts, in my opinion.
Are we taking too long? Well, I don't know how long too long is, but as I have come to view as best I can all aspects of this complex equation I can tell you I remain patient and realistic.
To this panel, I would say that I have nothing but the greatest respect. I will do what I have always done, and that is to deliver the facts as I see them. I can say that on behalf of all of those with whom I work, because I have come to know and respect them as well, and I include the State officials and technicians when I make that remark. I would not come before this Committee with these comments if I felt that the compact had broken down or were failing or if I felt that any of the parties involved, whether they are State or Federal, were not committed to an eventual success that embodies the very spirit of the compacts themselves.
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It is my hope and my fervent prayer that we will proceed and that we will be successful and in doing so that we will show others who will surely follow in our path from other States in the American South that we can set our sights on noble goals and not just short-term, politically expedient solutions. If we accomplish this, then future generations that inherit the results of our efforts will not only be well served but will also be inspired to do the same for their posterity.
Thank you, Mr. Chairman.
Mr. BARR. Thank you very much, Mr. Thomas. We appreciate that.
[The prepared statement of Mr. Thomas follows:]
PREPARED STATEMENT OF LINDSAY THOMAS
Congressman Barr, I am Lindsay Thomas. I appreciate the opportunity to be here and it is good to see you again. I currently am, and have served since 1998 as, the Federal Commissioner for the two Compacts which are the topics of your hearing today. As I hope you will sense, these are important topics to me.
At the outset, I want to underscore my appreciation for the commitment of Congress, the States, and the Federal agencies to the Compact process. Long deliberations from Congress and State Legislatures brought about the unusual opportunity to make lasting determinations about the future of regional water resources in the form of the Alabama-Coosa-Tallapoosa (ACT) River Basin Compact and the Apalachicola-Chattahoochee-Flint (ACF) River Basin Compact. In the Southeast region of the United States, our economy, our culture, and our society are structured around our water resources—particularly these crucial river basins. How we manage these priceless natural systems will determine the quality of life for years to come for us, and for future generations. As a former member of Congress, it is my sincere belief that this is a rare chance to resolve cooperatively a basinwide management plan that will provide economic prosperity while assuring the continued wise stewardship of these vital natural resources.
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In my view, and in the view of the Federal agencies with which I work, continued commitment to the goal of a basinwide management is critical. We are facing an enormously complex situation and one with no better solution to our collective stewardship responsibilities for the resource than a cooperatively reached agreement. These are tremendous and vast resources we are discussing; the ACT and ACF River Basins combined span 40,000 square miles of the southeast. The Basins cover a diversity of habitats and support a wide variety of plants and animals while also providing for innumerable human uses. It is clear that our actions and decisions will affect many people and many interests for decades to come. One need look no further than the circumstances which gave rise to the Compacts to confirm that a collaborative solution that provides for long-term basinwide management holds the best potential for our region's well-being. Without a Compact solution, we sacrifice a hard-won and key advantage—the valuable opportunity for an effective alternative to piecemeal management of shared resources. In the interest of the Region, that is too high a sacrifice.
For a moment, assume the negotiations were to fail. What would follow? It is a certainty that there would be a long, expensive, and very arbitrary period of disputes and litigation. This alternative would cause the loss of the comprehensive basinwide focus that is essential to long-term wise stewardship decisions. Furthermore, if we were to turn to the court system for judgment, we would lose the advantage of the vast and valuable expertise that has come together to work towards the success of the Compacts. State and Federal experts in hydrology, economics, biology, recreation, drought, and all other fields pertinent to these negotiations are gathered now. A vast array of committed stakeholders is also engaged in the process at this time. It is my belief that these parties will go a long way in supporting a conscientious and balanced agreement, even if it comes in stages, with responsible commitment to follow through in implementation and to maintain ongoing wise stewardship. In the litigation arena, these stakeholders—the rightful stewards of these resources—will be left helplessly walking the sidelines or, perhaps worse, pitted against each other.
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Without the cooperative framework that the Compacts foster, the alternative is an inadequate piecemeal arrangement. Although eventually each issue would no doubt be addressed, the results would likely range. At best, short term needs would divert limited technical and management assets away from long range goals essential to stable growth and protection of the natural systems. Or, at the worst, short term issues would grow to hold such prominence that widely embraced long-term resource goals would never receive attention or enjoy a common framework for debate. Long term stability and ecosystem health would suffer. Avoiding that result is the intrinsic value of a Compact-based solution.
I believe all involved parties also recognize the precedence of this process, not just for the Southeast, but for the entire American East and beyond. We must all work together, taking advantage of this hard won opportunity, to provide the vital leadership to show how shared resources and shared concerns ought to be managed. The Compacts provide the occasion to create a unique template where natural resources issues are addressed on a comprehensive level, involving all interested parties in proactive basinwide management. Success here will challenge and guide other regions to do the same.
Although I fully recognize that the undertaking is formidable and that, under the Compact, consensus is essential at the initial State ''agreement'' (Article VII(a)) stage, I have continued to underscore that the States do not face the task alone. The Federal team has continued to offer assistance to the States in public settings, in informational discussions, providing technical evaluation, affording technical assistance, offering reactions to their evolving concepts, and, more recently—because I thought the time had been reached—setting forth a more active federal role.
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Of course, the formulative stage of the allocation formula is addressed primarily in Article VII (a) of the Compacts. The purpose is simple: The parties are to develop an allocation formula for equitably apportioning the surface waters of the ACF [ACT] Basin among the states; and, they are to do so, while protecting the water quality, ecology and biodiversity of the ACF [ACT], as provided in the Clean Water Act, 33 U.S.C. {{1251 et seq., the Endangered Species Act, 16 U.S.C. {{1532, et seq., the Rivers and Harbors Act of 1899, 33 U.S.C. {{401 et seq., and other applicable federal laws
Article VII (a) provides that, when an allocation formula for a basin is unanimously approved by the State Commissioners, an ''agreement'' among the States arises. That allocation formula agreement becomes effective upon receipt by the Commission of a letter of concurrence from the Federal Commissioner or, in the occasion of the Federal Commissioner electing not to send a letter of nonconcurrence within 255 days. However, if a letter of nonconcurrence from the Federal Commissioner is sent, and all parties are not able to renegotiate a solution to federal concerns, then Article VIII(a)(4) provides that the Basin's Compact will terminate. Of course, as Federal Commissioner, I want to do everything I can, consistent with the Compacts, to avoid that result. To facilitate a resolution of differences, the Compacts provide that my reasons for nonconcurrence are to be set forth specifically and to be based solely upon Federal law.
Thus, the Compacts recognize—appropriately, I think—the sovereignty of the States involved and their legitimate interests and at the same time emphasize the Federal Government's—and the Congress'—interest in assuring that concerns of Federal law are addressed. In fact, they include a number of ''Reservations'' added—in important measure as a result of Former Speaker Gingrich's efforts—to assure that Federal interests were taken into consideration.
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Article XI of the Compacts recognizes ''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'' and provides that the Commission will adopt procedures ensuring this public participation. The Commission Operating Guidelines have identified thresholds for that participation. Assuring the public's participation, as provided for in the Compacts, has been a constant theme for me as Federal Commissioner. Furthermore, I have consistently encouraged the States to provide additional opportunities for public participation. Indeed, even though I was a strong advocate for mediation in the summer of 2000 to avert what appeared to be an alarming risk of the collapse of the negotiations, at the proper time I was an equally strong advocate in encouraging the States to return to an inclusive and public forum.
The Compacts' ''Reservations'' (Section 4) include provision for Federal agency representatives to attend Commission meetings and, at the request of the Federal Commissioner, to participate in technical committee meetings ''at which the basis or terms and conditions of the allocation formula or modifications to the allocation formula are to be discussed or negotiated.'' Section 5 of the Compacts authorize Federal agencies to enter cooperative relationships with the Commission, to conduct studies and monitoring programs in cooperation with the Commission, and to furnish assistance to the Federal Commissioner. In the service of these provisions, the Federal agencies have had a strong commitment to providing technical assistance to the Commission, its Committee, and State staffs.
We have provided comments on State proposals in a variety of formats. We have provided written letters from the various Federal agencies raising specific questions in response to State proposals. We have encouraged question and answer sessions with the States and I was particularly pleased that in July, 2001, the States sponsored a public dialogue among staffs of the State and Federal agencies with regard to the then current ACT (July 6, 2001) and ACF (May 25, 2001) draft allocation proposals. Thereafter, we provided further written questions to the States. The fact that the public attended and listened to the July 9 dialogue was, I believe, a significant contribution to the general understanding of the complexity of the issues confronting the States at this stage of the compact processes.
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As I mentioned earlier, the Compacts make clear both their respect for the States and their sovereignty and the necessity of attention to Federal concerns. I have tried to keep this mutual respect in mind, along with concern for public access, as I have considered ways to assist the States in their initial formula development. In that regard, and because I believed the States have reached a point in time in the development of their formula concepts that would make it useful, I have now offered a more ''active'' Federal involvement to the States. Although technical expertise has played a crucial role in the Compact process up to now (and will continue to play that role), the Federal agencies also have a program perspective that offers additional benefits to the dialogue. In the course of managing Federal programs, the agencies are responsible for recognizing and addressing a variety of issues—key areas of interest. In technical expertise discussions, the States might see the results of these key areas of interest but might not see, or have an opportunity to understand fully, why the areas are significant to the federal agencies. Thus, in November, I proposed that the States explore basinwide development through the eyes of Federal agencies and the key areas of interest that would guide their own thoughts if asked to craft such a formula. Although not an exhaustive list, I identified six areas of key interest to Federal agencies.
Those areas were: Adaptive Management; Public Participation in Implementation; Compensation for Impacts on Hydropower Capabilities; Congressional Reauthorization; and, Operational Practicability and Flow and Reservoir Levels. I envisioned the Federal agencies, working with the State teams, as outlining why and how these six items are key issues. By looking at these topics through our eyes, I hoped that the States would better understand the Federal perspective. Even more, I hoped that, in looking at the challenge through the eyes of another, the States might find new ways to close the few remaining gaps among themselves—gaps which may seem significant if viewed only from the perspective of today but which may be workable from a broader perspective.
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Our Federal team was very pleased that the ACT States responded immediately and favorably to a more active federal role. Those States agreed to hold a public session where the Federal agencies would outline the legal and program framework of these six key areas and, indeed, offer their ''current impressions'' with respect to possible language suggestions. Of course, we were careful to make clear that we are not prejudging the ultimate concurrence process under Article VII(a) and the ACT States respected that. The response was tangible evidence of their commitment, as well as our own, toward achieving the important goal set by the Compacts.
The public session in Montgomery, Alabama, on December 13 was warmly received by all involved—the ACT States (Alabama and Georgia), the Federal agency representatives, and the public. I believe that it was apparent to all present at that meeting that the results were very favorable. The constructive dialogue among Federal and State participants, the quality of the comments, and the focus of the questions last week were excellent. Further evidence of progress was that the ACT States and the Federal team agreed that we would continue to work together on these key issues and that we would schedule additional meetings in the near future. Our Federal team also noted that, based on its current impressions, if these key areas of Federal interest were resolved through public dialogue the ACT proposal would be promising.
I commend all of the States, both the ACT States and the ACF States (Alabama, Florida, and Georgia), for their hard work and progress to date. I also commend the Congress for the foresight to authorize this process through these Compacts. With the effort to date, I can compliment Alabama's expressed commitment to seek an extension of the ACT Compact and I strongly encourage the other States to consider the same both for the ACT and for the ACF.
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An extension of both Compacts would provide the opportunity for meetings of a similar nature with Alabama, Florida, and Georgia representatives on the ACF Basin. I feel so strongly in this regard, in fact, that I urged the ACF States by letter on December 14, 2001 to do just that. Our six key areas of federal interest are equally applicable to that Basin and we have urged and will continue to urge these ACF States to join with us in this new effort. Agreeing on extensions would avoid the loss of the important progress already made.
Of course, formula development and adoption is the first stage. It will, no doubt, involve consideration of Congressional reauthorization and action by this body. But, once that has occurred (and it will, I believe, if we all stay committed and focused), then our Region will have laid a cornerstone for its prosperity and stability for the next 30 to 50 years while protecting indefinitely the integrity of these priceless natural systems. The only way I see to achieve this extraordinarily important goal is to have a cooperative comprehensive plan framed to ensure continued wise stewardship. This is a process that is deserving of every chance we can give it to succeed. We must all work together to foster this attitude and protect the process from impatience, political expediency, and a rush towards litigation.
Mr. BARR. Mr. Muys, if you have an opening statement, we would be pleased to receive it at this time.
STATEMENT OF JEROME C. MUYS, ESQ., PRESIDENT, MUYS & ASSOCIATES
Mr. MUYS. I would like to submit my statement for the record——
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Mr. BARR. Make sure that that is on and you pull it relatively close.
Mr. MUYS. Thank you.
I was pleased to have been asked to provide some background information for the Subcommittee on water resources development on interstate river systems for two reasons.
I have long been an advocate of the use of interstate compacts to resolve regional water disputes ever since I did a study on interstate water compacts for the National Water Commission in 1972.
Secondly, I have tried to be an advocate for avoiding litigation, because I have been part of the 50-year struggle on the Colorado River that Speaker Gingrich mentioned at least 40 of those 50 years, and we are still struggling. We just had meetings last week trying to resolve the last Indian water rights issue.
But, in any event, litigation is not the answer. That is the message I try to convey whenever I can.
As far as Federal/State roles and interstate basins, the Supreme Court has long held that paramount authority—or predominant authority rests with the States, subject to the overriding authority of the Federal Government under the Constitution to develop the navigable waters for commerce and other purposes and to protect Federal property.
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Of course, in the intervening years, the expansion of the commerce and property clauses led to a number of major Federal programs for water resource development—the reclamation program in the West administered by the Bureau of Reclamation, the Corps of Engineers' flood control program throughout the Nation, the Federal Energy Regulatory's licensing authority over hydroelectric projects on all streams over which the Federal Government has jurisdiction that are on Federal lands.
In addition to water supply, flood control and power, recreations later have been added to the purposes served by Federal dams as well as environmental protection and right-of-ways. Unfortunately, over the years, as these programs progressed, the environmental values of the streams were overlooked, along with the right of Native Americans throughout the Nation.
In any event, we are faced with a situation now where we had for a number of years this array of Federal programs sometimes clashing with similar programs of lesser nature promoted by the States, and in those disputes, as required by the supremacy clause of the Constitution, Federal law must necessarily prevail in cases of irreconcilable conflict.
Now, as to compacts, the Founding Fathers recognized that there would be regional problems that would be beyond the power of individual States to deal with but not within what were then thought to be the rather narrow powers delegated by the States to Congress. So the compact clause picked up the use of interstate agreements from the Articles of Confederation and just added the requirement that there must be congressional consent to these interstate agreements to protect the national interests and the other interests of other States in the Nation.
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The second mechanism for dealing with interstate disputes was an action in the original jurisdiction of the Supreme Court, as we have talked about, and over the years the courts developed the dominant principle that each State in an interstate river basin is entitled to an equitable share of the resources of that river, and it makes that determination based on its evaluation of a number of factors relevant to what it calls an equitable apportionment.
It wasn't until 1963 in the court's decision, Arizona against California, that it discovered a third way of resolving interstate water disputes, namely congressional exercise of its commerce clause power to make its own allocation of the waters of an interstate stream. That has happened only on the lower Colorado and about 10 years ago on the Truckee interstate—Truckee River out in Nevada and California.
The compact clause requires the consent of Congress on its face for States to enter into an agreement, but the Court has held that consent to negotiate is not required prior to formal agreement, as it suggests, but that it must—the traditional practice for Congress is to enact specific consent legislation after the States have reached agreement, and in doing so it may add conditions modifying the compact or reserving—and usually reserving authority for Congress to revoke or amend its consent, although the Court has said you don't have—Congress doesn't have to expressly do it. It is implied.
Although the Court has emphasized that compacts are essentially contracts, it has also held that the congressional legislation also makes a compact a Federal statute that supersedes inconsistent Federal and State law.
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Now, the Court characterized the constitutional consent requirement 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.'' And the leading legal analysis of the compact clause asserts that the congressional consent is necessary because agreements between certain States may affect the interest of other States or other national and not merely regional interests.
Beginning with the Colorado River compact of 1922, Congress has approved some two dozen water allocation compacts which make an equitable apportionment of the waters of the interstate basin under a variety of allocation formulas.
Let me say, Mr. Chairman, my study for the National Water Commission led me to conclude and the National Water Commission to endorse the Federal interstate compact approach that has been in effect since 1961 on the Delaware River in Mr. Gekas' State, Pennsylvania, New Jersey, New York and Delaware. That model is one, it seems to me, looking at the ACT and ACF compacts, is one that was followed—tried to be followed in the two compacts under consideration here.
There is a similarity between them and particularly the emphasis in both compacts that, with the United States being a signatory party to those compacts, it is essential that the Federal agencies conform their activities to the maximum extent practicable and not in conflict with Federal law to the regional program that the States have adopted.
Let me just close by saying that the—make a few comments on the ACT and ACF compacts with which I have just recently become familiar.
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First, they appear to me to be compacts to enter into compacts. The 1997 compacts were not the end of the game. It was essentially an authorization to negotiate a compact, because it is the critical water allocation formulas that we are concerned about here, what the States are doing in dividing up the waters.
Although Congress has sometimes approved similar negotiating compacts, it has always required the resulting allocation formula to be brought back to it for congressional consent. The ACT and ACF compacts permit the resulting allocation formulas to be approved by the Federal Commissioner, and I personally question whether Congress may constitutionally delegate its important legislative responsibilities under compact clause in that fashion.
As I looked briefly at the draft agreement under the ACT compact, it seems to me that that draft agreement is the compact that ought to be coming back at some point for congressional action, because that is where all the meat of what is going to happen in the basin is contained.
Secondly, unlike the Delaware compact, you know, on these two compacts, although the Federal Government is a signatory party, it has no voting rights on the commission that shapes and administers all the important allocation formulas, which the Federal agencies are mandated to respect.
Third, the two compacts expressly supersede inconsistent State laws, except for those relating to water quality and establishing riparian water rights, but they disclaim any intent to repeal, modify or amend any Federal law.
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Finally, just as Federal agencies in the Delaware Basin must exercise their powers so as not to substantially conflict with the comprehensive plan that that interstate commission develops, so the two compacts here require the Federal agencies, ''To the maximum extent practicable to exercise their powers, authority and discretion in a manner consistent with the allocation formula so long as such exercise is not in conflict with Federal law.''
In each case, the congressional objective is the same. The Federal agencies shall implement their programs consistent with the compact commission's regional program for water allocation and management, unless irreconcilably in conflict with national programs.
That concludes my statement, Mr. Chairman.
Mr. BARR. Thank you very much, Mr. Muys.
[The prepared statement of Mr. Muys follows:]
PREPARED STATEMENT OF JEROME C. MUYS
Mr. Chairman and members of the Subcommittee, my name is Jerome C. Muys. I have practiced law here in Washington for many years in the water resources, public lands, public utility, and environmental law fields. I have been asked to provide some background legal and institutional information on water resources development, primarily on interstate river systems, for the Subcommittee's consideration of the status of developments under the Alabama-Coosa-Tallapoosa and Apalachicola-Chattahoochee-Flint interstate water allocation compacts among Georgia, Alabama and Florida approved by Congress in 1997.
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I want to note at the outset that the Judiciary Committee has the opportunity and authority to play a potentially highly significant role in the development and management of the water and related land resources of the nation's many interstate river systems. Although other Congressional committees have jurisdiction with respect to federal water resources development and environmental protection laws applicable nationwide, this Committee has the unique responsibility to address cooperative state and federal state institutional arrangements addressing regional, as opposed to state or national water issues. Interstate water litigation has increased significantly over the past 10–15 years. Disputes over the Canadian River, Arkansas River, and Republican River interstate compacts, Virginia's rights on the Potomac River, and new disagreements among the states of the North Platte River Basin have been or currently are before the Supreme Court, while rumblings from Texas and New Mexico on the Rio Grande implicating the Rio Grande Compact may also portend additional litigation before the Court.
I have been asked to discuss briefly the respective roles of state and federal law in the development of the nation's water resources, and how those roles are affected by interstate compacts approved by Congress.
From the Nation's beginning, the allocation and development of water resources has been a matter predominately within the authority of the states, subject to the power of the federal government to regulate navigation and commerce on navigable waters under the Commerce Clause of the Constitution. Almost 160 years ago the Supreme Court declared that the states ''hold the absolute right to all their navigable waters, and the soils under them for their own common use, subject only to the rights . . . surrendered by the Constitution to the general government.''(see footnote 1) The Court has never altered that fundamental principle.(see footnote 2) Of course, no one could have anticipated that in the intervening years the Court would expand the reach of the federal government's constitutional authority under the Commerce Clause from regulating navigation on plainly navigable rivers to regulation of a broader array of activities on the smallest non-navigable tributaries of such rivers that may ''affect'' their navigable capacity or, most importantly, perhaps, to allocation of interstate waters among the states.
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When the United States acquired the vast land areas which subsequently became 37 new states, it became sovereign ''owner'' of those lands. As to the waters on those lands, the Supreme Court treated the United States' interest in them the same as that recognized in private landowners bordering a stream under the common law of England and later the 13 colonies and early states, i.e., the owner of riparian lands was entitled to the ''reasonable use'' of its ''natural flow.'' Thus, in 1899 the Court recognized that ''in the absence of specific authority from Congress a state cannot by its legislation destroy the right of the United States, as the owner of lands bordering on a stream, to the continued flow of its waters; so far at least as may be necessary for the beneficial uses of the government property. . . .''(see footnote 3) It acknowledged that such ''specific authority'' had been conferred on the western states by the Desert Land Act of 1877, which provided that ''the water of all lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights'' under state law. However, as in Martin, supra, it held that the jurisdiction conferred on the western states to allocate use rights in such waters remained subject to the ''superior power of the general government to secure the uninterrupted navigability of all navigable streams''(see footnote 4) which Congress had subsequently exercised in 1890 by prohibiting unauthorized ''obstructions . . . to the navigable capacity of any waters of which the United States has jurisdiction.''(see footnote 5)
Water resources development in the West was initially a matter almost solely of private investment, just as it had been in the East, but the magnitude of the investment needed to develop such resources led to federal assumption of the responsibility for providing water storage and distribution facilities for irrigation throughout the West in the Reclamation Act of 1902, applicable only to the 17 western territories and states.(see footnote 6)
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At about the same time Congress began to focus its attention on development of the hydroelectric power potential of the nation's rivers, which had up to that time been a matter of private or public initiatives at the state or local level securing Congressional approval of dams on a case-by-case basis. After a long legislative struggle, Congress enacted the Federal Water Power Act of 1920, which created the Federal Power Commission (now the Federal Energy Regulatory Commission (''FERC'')) to license hydroelectric projects on all federally owned lands and waters subject to federal jurisdiction. The Commission was directed to develop comprehensive river basin plans and authorized to license non-federal projects ''best adapted to a comprehensive plan for development'' of the resources of each basin.
A series of devastating floods in the 1920's and 1930's led Congress to initiate major flood control programs dependent primarily on the construction of dams and levees by the U.S. Army Corps of Engineers, which had been responsible for maintaining the navigable capacity of the nation's waterways from the earliest days of the Republic. Thus by mid-century there were in place (1) the federal reclamation program under the Bureau of Reclamation applicable in the 17 western states, (2) the federal flood control program under the Corps of Engineers, which was applicable nationwide, and (3) the nationwide federal hydroelectric project licensing program under the Federal Power Commission. The two federal dam construction programs had spawned numerous projects across the nation, including the first two large scale multipurpose water projects providing water supply, flood control and power generation, with power sales providing the principal funding for such projects: the Bureau's Hoover Dam on the Colorado River and the Corps' Grand Coolee Dam on the Columbia. Similarly, FPC-licensed hydro projects had proliferated. With the rapid growth of our population after World War II with more leisure time and disposable income than ever before, recreation was added as an important water project purpose. Generally overlooked in the process were fish and wildlife and other environmental values, along with the historic water rights of Native Americans.
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As you can imagine, conflicts between federal water resource development projects and non-federal projects dependent on water rights acquired under state law were inevitable. In accordance with traditional ''preemption'' law grounded on the Supremacy Clause of the Constitution, in cases of irreconcilable conflict between federal and state law federal law must prevail. In the 1950's and early 1960's a series of Supreme Court decisions tilting the respective roles of state and federal law in water resources development more to the federal government(see footnote 7) and expanding the magnitude of Indian reserved water rights and water rights for other federal reservations(see footnote 8) created consternation in the western states and Congress,(see footnote 9) but Congress took no action to reverse that trend.
Over this same time period the Supreme Court was framing a national policy with respect to interstate waters. The Founding Fathers had anticipated that a variety of regional disputes might arise within the newly-created federal system that would be beyond the power of a single state to deal with and yet not within what were then thought to be relatively narrow powers which the states had delegated to the national Congress. Hence the Constitution provided two mechanisms for dealing with them. Article 1, section 10, clause 3 authorized the continued use of interstate agreements or ''compacts'' (a device which had been liberally used in Colonial America to resolve boundary disputes), subject only to the requirement of Congressional consent to assure protection of any national interest that might be implicated in such agreements.
The second mechanism for the settlement of interstate disputes was an original action in the Supreme Court provided for in article III, section 2. In a number of decisions the Court progressively developed the guiding principle that it would apply in such cases, declaring that each state in an interstate river basin is entitled to an ''equitable share'' of the river, determined by the Court's evaluation of a number of factors relevant to an ''equitable apportionment.'' See, e.g., Nebraska v. Wyoming, 325 U.S. 589, 618 (1945). I recently treated the evolution of the Court's equitable apportionment doctrine in a paper I delivered at the American Bar Association's Annual Water Law Conference in San Diego last February that I would like to submit for the hearing record.
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It was not until the Supreme Court's 1963 decision in Arizona v. California, 373 U.S. 546, that a third avenue for the solution of interstate water disputes was discovered, namely Congressional exercise of its authority under the Commerce Clause. In that case the Court concluded that Congress had in the Boulder Canyon Project Act of 1928 effected a ''statutory apportionment'' of the mainstream of the lower Colorado River among California, Arizona, and Nevada by conferring upon the Secretary of the Interior, as part of his authority to manage Hoover Dam, the power to make a ''contractual allocation'' of those waters in the event that the three states were unable to agree to a compact. One can only speculate about whether certain Corps of Engineers water supply contracts might effect a similar allocation of interstate rivers.
Both the Bureau and the Corps have traditionally relied on state law for the acquisition of necessary water rights for their projects, the Bureau pursuant to the mandate of section 8 of the Reclamation Act and the Corps as a matter of comity. The Federal Water Power Act also requires a hydro project license applicant to acquire the water rights necessary for a proposed project under state law.
Let me digress a moment to explain that there are two basic state legal systems governing the acquisition and use of rights to water in the United States. The first is the riparian system, derived from the common law of England and applicable in most eastern and central states, which permits owners of land adjacent to rivers and other water bodies to make reasonable use of such waters on their riparian lands. The common law rule has been modified in most states by legislation requiring a permit for the exercise of such rights. The second system is the appropriation system, which developed as a matter of necessity in the arid western states. It is not dependent on ownership of riparian lands, but on the application of water to a reasonable beneficial use, and establishes priorities based generally on the principle that ''first in time is first in right.'' In addition to these two basic state law systems, the Supreme Court has developed a body of federal law applicable to reserved federal and Indian lands in the western United States which can make significant inroads on established state created rights end programs. Similar federal and Indian water rights have not yet been held applicable in the rest of the nation.
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Let me turn now to a discussion of the role of interstate compacts in our federal system, and how they relate to existing state and federal water resources development and environmental protection legislation.
Article I, section 10, clause 3 of the Constitution, provides that'' ''No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State or with a foreign Power.'' Although the compact clause seems to mandate Congressional consent for all interstate agreements, the Supreme Court has held that consent is required only where the compact threatens to significantly impinge on national interests.(see footnote 10) Similarly, consent is not required prior to formal agreement, as the clause suggests, but may be evidenced either before or after agreement is reached.(see footnote 11) Sometimes, however, Congress has enacted legislation generally authorizing states to negotiate a compact on a particular subject matter but requiring further consent to any compact resulting from such negotiations. The critical question is whether ''Congress, by some positive act in relation to such agreement, [has] signified the consent of that body to its validity.''(see footnote 12) The traditional practice is for Congress to enact specific consent legislation approving an agreement states have reached, which may contain conditions adding to or modifying the compact and usually expressly reserves authority for Congress to revoke or amend its consent. Moreover, Congressional consent does not preclude a later Congress from enacting legislation inconsistent with the approved compact, even if the consent legislation does not preserve that right.
Although the Court has emphasized that compacts are essentially contracts, it has also held that the Congressional consent legislation also makes a compact a federal statute.(see footnote 13) Consequently, after Congressional approval a compact and the consent legislation supercede inconsistent state and federal laws except as otherwise provided in the compact or consent legislation. Needless to say, this dual status presents a number of significant conceptual and legal issues, such as appropriate rules of construction and choice of law, which the Court has not yet finally sorted out.
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The Court has characterized the constitutional consent requirement 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.''(see footnote 14) The classic treatment of the compact clause by Harvard Law Professor (later Supreme Court Justice) Felix Frankfurter and Harvard Law School Dean James Landis described the ''practical objectives'' of the consent clause as follows:
''. . . agreements 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.''(see footnote 15)
Congress has approved some three dozen compacts relating to water resources management. The study of interstate water compacts that I prepared for the National Water Commission in 1972 evaluated the effectiveness of existing water compacts and compared the compact mechanism to other institutional approaches to river basin management. I concluded that the chief advantage of the compact approach is its adaptability to the special, often unique needs of a particular basin. Each river basin has its distinctive physical and political characteristics that demand specific legal approaches. Since a compact must be the product of agreement among the states, it can be shaped as the states desire, in accordance with their particular regional philosophy of appropriate intergovernmental relations, rather than being imposed by Congress or the Supreme Court. It can be targeted on a single problem, such as water allocation, or may seek more comprehensive, multipurpose goals that permit flexible management of the compact allocations. Similarly, it may create a permanent administrative entity and endow it with such powers as the states consider appropriate to accomplish their regional objectives, provided they are not inconsistent with broad national goals.
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Beginning with the Colorado River Compact of 1922, Congress has granted its consent to about two dozen water allocation compacts, all still in effect, which purport to make an equitable apportionment of the waters of the affected interstate streams, mostly in the West. They reflect a number of different approaches, but whatever the allocation formula, existing uses and rights are usually protected. Approximately half of them provide that the allocations are to include all federal uses.
With respect to the water supply estimates that formed the basis of the older compacts, time has shown many of them unreliable. Similarly, the western states entered into almost all the existing water allocation compacts before the full impact of the ''reservation doctrine'' of federal and Indian water rights was announced by the Supreme Court in Arizona v. California in 1963. Consequently, the estimated water requirements that were the basis of the compact allocations were probably significantly understated for those states with substantial areas of reserved federal and Indian land. Moreover, Indian tribes had no role in the negotiation or the subsequent administration of these compacts. Likewise, few existing compacts anticipated the impact of the federal environmental programs of the last thirty-five years, such as those under the Clean Water Act and the Endangered Species Act, on compact allocations and their utilization. Indeed, many of the allocation compacts, most of which are at least forty years old, are so environmentally outdated in many respects that, in my opinion, it is unlikely that most of them should or would currently receive congressional consent. What is clear is that, for the future, federal and Indian claims should be fully reflected in, and bound by, any efforts at new compact allocations or renegotiation of present allocations. Similarly, it could be unproductive for states to allocate discrete quantities of water among themselves if physical and geographic factors or use patterns, coupled with the limitation of water quality control standards under the Clean Water Act or the constraints of the Endangered Species Act, might never allow those waters to be used in the quantities or at the times contemplated.
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The earliest compacts generally charged the chief water officials of the compacting states (1) to obtain and correlate necessary hydrologic data on supply and uses and (2) authorized them to issue regulations to implement the compact apportionment. More recent compacts, however, provide for the establishment of a permanent interstate administrative agency to carry out the functions essential for achieving the compact's objectives.
Although the states generally possess ample authority to confer broad powers on compact commissions, the historic pattern seems to reflect a lack of commitment on the part of the states to any cooperative regional effort that requires a significant delegation of power to an interstate entity that they may not be able to control. The irony of this approach is that the more successful the states are in hobbling compact agencies to protect their individual sovereign prerogatives, the more likely it is that regional water problems will become subject to federal programs superseding state authority. Consequently, if states are to have a stronger role in regional water development, as they have sought with respect to hydropower development and which they may inherit as the Bureau of Reclamation and Corps of Engineers chart a new, more environmentally oriented role for the future, they must recognize and use the potential of the compact as a mechanism for positive action on regional water problems and confer adequate powers on the compact agencies to deal with such problems effectively.
Finally, it is instructive to explain why the National Water Commission in 1973 endorsed the federal-interstate compact as the preferred permanent institutional arrangement for regional water resources planning and management.
One of the major goals of river basin planning and management has long been to achieve meaningful coordination of federal, state, and private water resources plans and actions. With respect to interstate waters, the search has been for a mechanism to provide a regional perspective to the development and implementation of a comprehensive plan. The interstate compact has always provided the theoretical means for achieving those two objectives and, starting about sixty years ago, began to be used to provide the permanent administrative mechanism lacking in more informal approaches, such as interagency committees. However, the compact approach has traditionally evidenced significant shortcomings. A major one relates to the role of the federal government. As I have described, the broad federal programs for the development, use, and management of the nation's water resources inevitably make the federal government a significant if not controlling force in the success or failure of cooperative state efforts to deal with regional water problems. The federal government is ever present in many roles: as the provider of essential hydrologic data; as a de facto river master through its construction and control of large-scale reclamation and flood control projects or through the Federal Energy Regulatory Commission's licensing of nonfederal hydroelectric projects; as the ultimate regulator of activities affecting water quality through the Environmental Protection Agency's supervision of programs under the Clean Water Act; or in its most recent role as protector of threatened or endangered species of fish and wildlife and their aquatic habitat. Where the federal government's land ownership is significant, as in the West, its claims to water for consumptive use on its lands or for minimum streamflows to maintain important instream or riparian environmental values significantly affect the regional water picture. Similarly, the activities carried out on federal lands by the land management agencies or private licensees, lessees, contractors, and permittees have an important impact on water quality. Yet the federal government traditionally has neither been a party to water compacts nor been formally committed in any way to support compact programs.
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Many of the water allocation compacts merely invite the president to appoint a federal representative to sit as a neutral, nonvoting chair of these commissions, occasionally granting that person the right to cast decisive votes when the states cannot agree. The federal government in these situations appears to be little more than an observer, without obligation to see to the coordination of federal plans or programs in the region to the maximum extent feasible with those of the states. Obviously a compact plan for an interstate river basin is not ''comprehensive'' if it does not encompass federal water planning and use as an integral part of the effort, nor can it serve any meaningful function unless all interests in a basin, and particularly the federal government, are committed to carrying out their respective programs in accordance with it to the maximum extent consistent with federal law.
Against a generally unimpressive historical backdrop of interstate compact performance, the federal-interstate compact on the Delaware River emerged in 1961 to provide (1) the long-sought linkage between federal and state planning and program implementation and (2) the regional emphasis lacking in earlier compact approaches. The Delaware River Basin Compact sought to unify regional development and control in place of the duplicating, overlapping, and uncoordinated administration of some forty-three state agencies, fourteen interstate agencies, and nineteen federal agencies exercising a multiplicity of powers and duties that resulted in a splintering of authorities and responsibilities. The compact created the Delaware River Basin Commission (DRBC) and charged it to ''adopt and promote uniform and coordinated policies for water conservation, control, use, and management in the basin [to] encourage the planning, development, and financing of water resources projects according to such plans and policies,'' and to formulate a ''comprehensive plan'' for the development and use of the basin's waters. It also endowed the DRBC with very broad licensing and project construction powers to aid in implementing the basin plan.
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The Delaware compact embodied two significant innovations. First, it established a structure for meaningful comprehensive planning by including the United State as a signatory party and imposing significant coordinating constraints on the states and the federal government. Second, it ensured a more regionally oriented approach through a generous grant of powers to the DRBC and provided for the injection of a broader perspective of basin problems through the federal government's active participation in the compact program.
To ensure that all projects in the basin are in general conformity with the comprehensive plan developed by the DRBC, the compact confers a ''licensing'' power on the DRBC. It provides that no project having a substantial effect on the water resources of the basin shall be undertaken unless it has been approved by the Commission.'' The commission, in turn, must approve any project that it finds ''would not substantially impair or conflict with the comprehensive plan,'' and a project not meeting that standard may be either disapproved or approved subject to modification to make it consistent with the plan.
With respect to federal projects, a reservation in the Congressional consent legislation provides 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 substantially conflict with any such portion of such comprehensive plan.'' Because the content of the comprehensive plan is determined by majority vote of the DRBC, on which the federal government has a single vote with each of the states, there is an escape valve in the consent legislation which provides that the federal government need not shape its projects to a plan with which it is not in agreement and authorizes the president to ''suspend, modify or delete'' any provision of the comprehensive plan affecting federal interests when the president ''shall find . . . that the national interest so requires.''
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The DRBC must exercise its powers so as ''to preserve and utilize the functions, powers and duties of existing offices and agencies of government to the extent not inconsistent with the compact . . . to the fullest extent it finds feasible and advantageous.'' Thus, the compact preserves each state's authority to the maximum extent possible if compatible with the compact's objectives.
One of the unique features of the compact is the DRBC's power to allocate the waters of the basin among the signatory states in accordance with the Supreme Court's doctrine of equitable apportionment, a provision designed as an alternative to (1) what was considered to be the relatively inflexible apportionments made by traditional water allocation compacts and (2) litigation in the Supreme Court. However, this allocation power, which permits adaptive management of the Basin, as well as all other DRBC authority, is not allowed to affect the rights and obligations of the states under a 1954 Supreme Court decree, other than by unanimous agreement. Supplementing the DRBC's allocation power is its authority to regulate withdrawals and diversions of surface waters and groundwaters in certain situations.
In theory and in practice the Delaware compact has shown that it is possible to forge the disparate federal, state, and local interests into a comprehensive, cooperative, and consciously directed regional water resources development program. I agree with the National Water Commission's recommendation that the federal-interstate compact approach on the Delaware justifies serious and thoughtful consideration by other regions.
What is needed is a congressionally approved and instituted regional arrangement that mandates cooperative and coordinated action by federal agencies that will be in conformity with the regional views of the affected basin states to the maximum extent practicable and consistent with federal legislation. Where the United States is a signatory party to a compact and substantially bound by it the same as each of the states, to the extent constitutionally permissible, the federal representative can serve as the focal point for all federal interests, whether consumptive use rights, instream and other environmental values, water quality control, flood control, project construction and licensing, and the like. That kind of arrangement would compel the coordination and accommodation of comprehensive river basin development that is currently lacking in most existing compacts. However, consistent with the purpose of the compact clause, the federal government must have the right to assert its paramount authority to protect national prerogatives in appropriate situations. That is the unique pattern of the Delaware, Susquehanna, ACT and ACF compacts. More importantly, perhaps, in that the federal agencies must be committed to the compact objectives. Unfortunately, a recent study of the DRBC's track record over the past 40 years reports that in recent years the federal representative and the agencies have not taken their obligations seriously, to the point that Congress zeroed out its long standing financial support of that position a few years ago. I hope that a similar fate will not befall the federal commissioner under the ACT and ACF compacts.
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Let me close with several comments on the ACT and ACF compacts.
First, they appear to be compacts to enter into future agreements establishing allocation formulas equitably apportioning the waters of the affected rivers among the party states. Although Congress has approved similar ''negotiating'' compacts on a number of occasions, it has always required that the resulting compacts containing the critical allocation formulas be submitted to Congress for approval. The ACT and ACF compacts, however, permit the resulting allocation formulas to be approved by the federal commissioner. Although I am not a constitutional law expert, I have some questions about whether Congress may lawfully delegate its important legislative responsibilities under the compact clause in that fashion, particularly when the only criteria which the federal commissioner must apply is whether the allocation formula violates federal law.
Second, although the United States is a signatory to the compacts, which has only been done previously in the Delaware and Susquehanna compacts, unlike those two compacts it is not a voting member of the compact commissions that are to shape and administer the all important allocation formulas which all federal water resource development and environmental protection programs are to respect to the maximum extent practicable consistent with federal law. Although I believe that the same result should flow from the approved compacts status as federal statutes without the United States being a party to the compacts, Congress obviously intended to strengthen that obligation by providing for member status by the United States.
Third, the two compacts expressly supercede inconsistent state laws, except for those relating to water quality and establishing riparian water rights, but disclaim any intent to repeal, modify, or amend any federal law.
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Finally, just as federal agencies in the Delaware Basin must exercise their powers so as not to ''substantially conflict'' with the approved comprehensive plan, but may escape that responsibility where ''the national interest so requires,'' so Article VII(b) of the ACT and ACF compacts requires federal agencies ''to the maximum extent practicable to exercise their powers, authority, and discretion in a manner consistent with the allocation formula so long as [such] exercise . . . is not in conflict with federal law'' and Article X reiterates that those agencies ''shall, to the maximum extent practicable, enforce, implement or administer [federal] 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.'' In each case the Congressional objective is the same—the federal agencies shall implement their programs consistent with the compact commission's regional program for water management or allocation unless irreconcilably in conflict with national programs.
That concludes my statement, Mr. Chairman. I will be pleased to attempt to answer any questions the Subcommittee may have.
Mr. BARR. Mr. Sherk.
STATEMENT OF GEORGE WILLIAM SHERK, ESQ., ATTORNEY AT LAW
Mr. SHERK. Thank you, Mr. Chairman, for the invitation this morning——
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Mr. BARR. You might just pull the whole contraption a little bit closer. Thank you.
Mr. SHERK. This seems better.
When Dickens wrote Bleak House, he could very well have had in mind the litigation between Kansas and Colorado over the Arkansas River. The first papers in that case were filed in the summer of 1901. It is still before the Supreme Court. It turned a hundred years old this year. And as the Chief Justice noted, these two States can't even agree on how to pronounce the river. It is the Arkansas in Colorado, but it is the Ar-kansas in Kansas.
Litigation is not a means to resolve interstate water conflicts, and it has involved all of your States. North Carolina, for example, spent decades in conflict with the City of Virginia Beach over diversions from Lake Gaston to provide a water supply for the tidewater region.
Pennsylvania spent decades in litigation with New York, New Jersey and Delaware over the waters of the Delaware River. That litigation fortunately led to the groundbreaking Delaware River compact that Mr. Muys has so capably summarized, the importance of which can't be overstated in providing a model for a Federal interstate compact. It is clear to me that that compact informed the process by which the existing ACF and ACT compacts came into being.
That said, it is important to look at the terms of the compacts in the context of language authorizing the States to develop an allocation formula agreement. The language in the compacts relating to allocation formula clearly relates to some sort of a mathematical computation, a table, a formula, a percentage of stream flow approach. The term ''allocation formula agreement,'' however, is not defined, the results of which is that the allocation formula agreements that have been developed to date go far beyond merely a quantification of relative percentages of entitlements to water in the shared river basins.
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In going beyond that, the allocation formula agreements, the drafts of the allocation formula agreements—and so there is no uncertainty, there is a draft for the ACT—the draft on the ACF has been withdrawn. But those drafts went far beyond any mere allocation of water.
Because they went so far beyond that, they have raised serious legal issues relating to Federal/State relations, relating to issues arising under State water law and relating to procedures that, unfortunately, were not resolved when the compact was negotiated.
In terms of the Federalism issues, the States seem to have made a very fundamental mistake in assuming that the physical availability of water equated with the legal availability of water. Simply because there is water in the headwaters of any of the rivers that are involved here does not mean that there is an entitlement to use it because of the number of Federal statutes that affect the management and allocation of water, as Mr. Muys has pointed out.
We have essentially gotten to the point where States can exercise primacy over the management and allocation of water resources only to the extent that that water is not needed to fulfill the requirements of Federal purposes. Unfortunately, that quantification has never occurred. So the States are trying to allocate a pie, the diameter of which is unknown. The result is going to be ongoing uncertainty and is probably reflected in the language of the allocation agreements relating to litigation that is going to follow ratification of the agreement.
The allocation agreements by their terms attempt to change the authorized purposes of Federal projects. In the ACT, for example, Allatoona dam and lake and Carters dam and lake are changed from multipurpose Federal projects to water supply projects for the City of Atlanta. The States do not have the authority to do that. There is language in the allocation agreement suggesting that congressional ratification merely of reallocating storage will be sufficient. That is incorrect.
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The number of conflicts with Federal law go far beyond merely allocation of storage in Allatoona and Carters. In terms of the water law issues that are raised, the current draft limits Georgia's diversion to, quote, reasonable use, close quote, under Georgia water law, which is roughly similar to—I believe it was Chief Justice Potter Stewart's definition of obscenity when he said he didn't—he couldn't define it, but he knew it when he saw it. The concept of reasonable use, you can't define. You know it when you see it. But it is an ambiguous, amorphous concept that changes over time.
The process by which the commissioner has to make a concurrence/nonconcurrence decision assumes that the effects of the allocation can be determined. It was the scientific process the Speaker made reference to. A limitation that is not quantifiable is not anything else. There is no way to know what the impacts are going to be.
The final issue that has emerged is procedural, and this involves the concurrence/nonconcurrence process. Under the compacts, the Federal Commissioner is cast in the role of either concurring with the allocation formula agreement or of nonconcurring or of doing nothing, in which case concurrence is assumed.
The compact is silent—both of the compacts are silent as to who bears the burden of persuasion when that demonstration has to be made. Are the States obligated to demonstrate that the allocation agreement is consistent with Federal law, or is the Federal Commissioner put in the position of having to prove the negative? Does the Federal Commissioner have to prove that it is inconsistent with Federal law before he can nonconcur?
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There has been a great deal of confusion over this. It is one of the issues that may fall to this Committee to resolve. All of the issues that have arisen are within this Committee's jurisdiction.
There has been an ongoing call in the literature over the past 10 to 15 years for greater congressional involvement. Because of the number of Federal statutes, the States simply cannot resolve these amongst themselves. It is an approach that this Committee has the jurisdiction to consider and that I believe this Committee should consider if the existing process on the ACF and ACT continues to produce the fruit that it has produced to date.
I thank the Committee for its attention, and I will be happy to answer any questions.
Mr. BARR. Thank you very much.
[The prepared statement of Mr. Sherk follows:]
PREPARED STATEMENT OF GEORGE WILLIAM SHERK
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Mr. BARR. I would, again, remind all witnesses that their full statements will be submitted for the record.
I would also at this point like to ask unanimous consent to have the following four documents entered in the record.
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One is the remarks in writing by the Federal Commissioner, Mr. Thomas, dated December 13th of 2001.
[The information referred to follows:]
Mr. BARR. Secondly, is the letter already alluded to several times here from Speaker Gingrich to the Honorable H. Martin Lancaster, Assistant Secretary of the Army for Civil Works, dated January 11, 1997.
[The information referred to follows:]
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Mr. BARR. Third is a letter to me from the Office of the Assistant Attorney General for Legislative Affairs, Dan Bryant, dated December 10, 2001, and relating specifically to some of the issues that you just referred to, Mr. Sherk, with regard to burden of proof and compliance with Federal laws.
[The information referred to follows:]
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Mr. BARR. And the fourth document at this point is a statement submitted to us in anticipation of this hearing today by Bradford T. McLane, executive director of the Alabama Rivers Alliance and chairman of the Tristate Conservation Coalition for the Alabama-Coosa-Tallapoosa River Basin.
[The information referred to follows:]
Mr. BARR. I move the introduction into the record of those documents without objection.
Dean Acheson wrote a biography of his experiences as Secretary of State, another work that he did for our Nation, and he entitled it, ''Present at the Creation.''
Speaker Gingrich, you were essentially present at the creation of this process. You have referred several times to the not-short meeting in your office on January 11th and the subsequent letter, and I know you were involved with this matter long before that, including your work while at the college in west Georgia.
Clearly, Congress anticipated when we passed the legislation in 1997 that some extension or additional time might be necessary to hammer out the details. I don't think very many of us, if any of us, anticipated that these extensions would go on year after year after year. That is not necessarily bad, as long as there is true progress, as long as we have a meeting of the minds and there is some light at the end of the tunnel.
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In your view, though, having been present at the formulation of this process, Speaker Gingrich, how long should Congress wait? Congress I think clearly has the authority to step in, certainly with regard to exerting jurisdiction—legislative jurisdiction over the allocation of waters in Federal impoundments, and that is a great deal of the water that we are talking about here. Or should Congress just sit back and sort of let this process chug along, virtually indefinitely?
Mr. GINGRICH. Let me say, first of all, that while we had the initial marathon meeting in my office to create the framework—and Governor Miller was certainly very supportive at that time and very positive—without your leadership on this Committee, it wouldn't have happened. I mean, the fact is, you know, speakers give speeches, but Subcommittees and Committees legislate, and I want to commend you. We would not be here—as frustrating as being here is, we wouldn't be here. We would be in litigation if you had not worked so hard to get the legislation through the House in a timely manner.
I will just make a couple of observations that I think reflect what you have already heard today.
First, I think people have a right to be a little impatient. I think the Congress has the right to be a little impatient. This process keeps dragging on.
Second, I still think it is a better process than allowing it to break down, and in that sense I would encourage the Federal side to stay engaged.
Third, I think it would be helpful if the Environmental Protection Agency and Fish and Wildlife would engage the three State universities and begin to get a scientific dialogue in public about appropriate behaviors, because I think there are first-rate scientists and model builders at all three major university systems. And, for example, at Georgia Tech, there is a particular scientist who has done modeling of the Nile River. He has done modeling worldwide. He offered to do modeling and was rejected by the States, which I think had been, as I said earlier, far too parochial. So I think that having the Federal Government move to create the information framework——
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Mr. BARR. Excuse me, Speaker. Is that Dr. Georgakakos, Aris Georgakakos?
Mr. GINGRICH. Yes. And I am just suggesting that having the Federal Government expand the information base and broaden the framework of the discussion would be helpful. Because, as was pointed out earlier, the goal here originally was not pork barrel wheeling and dealing. The goal here originally was to model off of what we had seen done with the Delaware compact and what we saw was being done in the Chesapeake Bay where there is a serious commitment to having a healthy environment and healthy human habitation in the same framework. And our goal and I think Commissioner Thomas's goal was to work very directly to try to get the States to rise above parochialism, to try to have this basin literally be a model for future compacts in future situations. So I would encourage the Federal Government to maybe be more proactive in creating the database, to maybe be more proactive in pressuring the States.
Candidly, in a worst case, if a year or two or three from now we got to a point much like happened in the two previous citations and you could get the three State delegations and the Congress to agree, you may decide to impose something at some point.
Mr. GINGRICH. But I think that is the idea until the States agree on a compact. The second will be to have Federal imposition. And the worst of all worlds is to go to a litigation model.
Mr. BARR. Thank you.
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Mr. Thomas, I would appreciate your thoughts on that. But if you could also address a question that you did address very eloquently in the remarks that I have inserted into the record that you have provided to the negotiators on December 13th of this year—a very lengthy document, and I think has had a salutary effect, because it has sort of focused attention on some of these specific Federal issues, and certainly the overriding Federal concern here in the way that was sort of left sort of vague before.
One of the things, though, that I noted in your remarks of December 13th is your acknowledgment of the fact that compensation will be required for hydropower benefits that are lost at the Federal reservoirs when the two basins are converted to water supply facilities.
Would not that same principle of compensation also be required for all of the other Federal benefits that will have to be foregone or would be adversely or negatively affected if the reservoirs are converted to water supply facilities? Would not compensation be due for lost flood control benefits, recreational benefits, water quality benefits and fish and wildlife benefits, for example?
Mr. THOMAS. Mr. Chairman, the first thing I am going to do here today is to remind members of this panel—and I won't wear this out, but I am one of the few nonattorneys here in the room today and I have very good legal counsel to advise me and work with us. In fact all of our departments and agencies do—that is, this time matter, that to the best of my recollection we have not gone into. We have dealt strictly with the compensation for hydropower generation. And my opinion is that this is the kind of thing that will evolve once a clearer formula is put before us and we get into the process.
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As far as direct monetary compensation for loss of any Federal benefits, that is a matter, again, that I simply would have to get back to you on. I would like to do it after having conferred with my legal counsel and the members of our working group, because this is an area that has at this time been confined mostly to the remuneration for hydropower—lost generation of hydropower.
Mr. BARR. What I would like to do then, Commissioner, is to submit to you some specific written questions in follow-up to our hearing today. That would be one of them. And then if you could respond to that on the record, we would appreciate it.
Mr. THOMAS. I certainly will. I hope that the panel understands, one of the things that we have striven to do as a Federal working group, and in my opinion it is incumbent upon us to do this, is that our comments are considered to represent 11 Federal agencies, including Justice and 10 other agencies that work with us.
And it is why—I don't have a specific answer that we have defined. I am reluctant to take just a judgmental position on it until I have the ability to confer with my group. That is what gives us the strength, is that we are a combined Federal interest in concerns in that working group, and we define our responses in that manner.
So I appreciate you giving me the opportunity on that to get back to you.
Mr. BARR. Thank you. And I will—I may pose the same question of some other witnesses. But at this time I would like to recognize the gentleman from North Carolina, Mr. Watt, for 5 minutes.
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Mr. WATT. Thank you, Mr. Chairman. Let me do a couple of things. Then I will yield the balance of my time to the Chairman. And—well, I was going to put something into the record, but I think you have already put that in.
Mr. BARR. We did.
Mr. WATT. Mr. McFarland's letter.
Second, I wanted to just make note of the fact that someone from North Carolina had to be involved in this, Martin Lancaster who apparently was right in the middle of it. And, indeed, North Carolina does have a similar ongoing process over Lake Gaston, which I had forgotten about but was reminded of.
Let me just ask one question, Mr. Sherk, Mr. Muys. It sounds like, Mr. Sherk, you think that the Commission may be going beyond the authority that was given by Congress. Do I understand that correctly?
Mr. SHERK. That would be correct; yes, sir.
Mr. WATT. If that is the case, if any issues beyond the original congressional authorization were ratified by the Commission and then brought back to Congress and approved by Congress, I just would be interested in having your reaction as to whether—and Mr. Muys' reaction—to whether that would be sufficient to remedy that concern?
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Mr. SHERK. It would be. In my opinion it would be sufficient. In my prepared statement, one of the concluding comments is that the allocation formula agreement in its entirety would have to be ratified by Congress.
The current structure of the agreement has a very small congressional ratification as a condition precedent; that is, reallocating storage in Allatoona and Carter's Lake. That small handle would trigger a number of changes in Federal law that are already included in the allocation agreement. Reauthorizing the purposes of those Federal facilities is clear.
But, for example, in the ACT agreement, there is a provision that the Alabama Power Company reservoir that is operating under a Federal Regulatory Commission license would change to a water supply facility. The effect of the small handle reallocating storage would be to amend the Federal Power Act, for example.
I think Congress has to look at each of the Federal issues that is raised by the allocation agreement and address them individually and determine if that is what Congress wants to do. Does Congress want to amend the Federal Power Act? It is clearly within Congress' authority. But is that what needs to happen here? Does Congress want to amend the Coastal Zone Management Act, for example?
Mr. WATT. Now, is that going to—suppose it comes back to Congress, gets ratified by Congress. Is that going to set off a whole round of litigation about whether it was sufficiently authorized originally, and then reauthorized retrospectively? Would it be better to expand the authorization in advance, from your perspective? And, Mr. Muys, I also would like your perspective on the first and second question.
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Mr. MUYS. I think the allocation formula has to come back to Congress. In my view, that is really the compact that we are concerned about. And it is there that Congress has to exercise its responsibility under the compact clause and see whether that allocation formula, the way it is laid out, the way it is to be implemented, is going to implicate other States unfairly—I don't see that in the ACT agreement—or somehow impinge on Federal interests. That is what Congress is here to——
Mr. WATT. But if it comes back with a set of things having been addressed that were not originally authorized to be addressed, will that create a legal issue, I guess, is the concern I am——
Mr. MUYS. That is not—in my opinion, that is not a legal issue. The States really don't need the authority from Congress to negotiate the original formula. I think that was in an abundance of caution, having the 1997 compact. The Supreme Court has made it clear that States can go out without any authorization from Congress, sit down, negotiate a compact.
But that final agreement must come back to Congress for its approval. And if it has elements in it that in this situation were not contemplated by the 1997 compacts, Congress in its consent legislation for the allocation formulas may impose conditions on the compact, may modify the compact, may do some things as part of its consent legislation that need to be done in the compact.
Like I just have scanned the ACT draft agreement allocation formula, but it looks like if it goes forward it is going to need some changes in the authorizing legislation for some of the Corps' projects in the basin. Well, these are the sorts of things that, either as part of the consent legislation or as part of separate legislation, Congress can deal with once it has the whole package before it.
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Mr. WATT. You agree that that can be done retroactively, Mr. Sherk?
Mr. SHERK. I agree with my colleague. It could be done retroactively. I would suggest, however, that when it comes back to Congress, it needs to be in a form that this body can accept. In its current form, I don't think it is acceptable. There are so many lightening rods in it. For example, last spring we went through an exercise of considering deauthorizing navigation, which is just one very small piece of this.
This was after the Assistant Secretary for Civil Works had recommended that navigation in the Apalachicola—the lower Chattahoochee and the Apalachicola—be deauthorized because it made no sense to do it. There was virtually no barge traffic. Large quantities of water were being released, having significant adverse impacts on areas like West Point Lake to provide enough water to move one or two or a string of six barges. It made no sense. It was a waste of the water.
Yet that very minor change produced a series of meetings up here that lasted for months, that ended up producing nothing.
The complexity of the final agreement, when it comes back to this body, needs to be addressed. The final agreement needs to be comprehensive, and it needs to be good. It needs to be based on good science. It needs to have had input from all of the Federal agencies. It needs to be consistent with Federal law, or it needs to specifically state the changes in Federal law that will occur.
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You have to understand, in part, the procedural. When the drafts of this compact were first being considered in the 1994–1995 era when I was at Georgia State University as a visiting professor, there was language in the draft that said that any allocation formula would supersede conflicting Federal law. Period. And I went to my supervisor at the time and asked him how big a red flag he wanted to tie to the legislation, because there was not a chance that was going to pass here on Capitol Hill.
That process of trying to find some way around the requirements of Federal laws and regulations is what led to the meeting in the Speaker's office, and I think has now led to an attempt to do indirectly what Congress has very specifically said the States cannot do directly, and that is to supersede Federal law.
Mr. WATT. Thank you, Mr. Chairman. I yield back. I—I am tempted to say—I am over my time, but I—this reminds me a lot of a conversation that I had with my best friend and next-door neighbor, who happens to be an architect and says that lawyers complicate everything.
Because former Speaker Gingrich made it sound so simple, it was a matter of getting a fair allocation down at the bottom of the stream, apparently. That sounded so simple until you went back and started working through the—the difficulties.
My response to my next-door neighbor is that quite often these general agreements, which sound so simple, are kind of like you are sitting down at the drafting board and drawing the outline of a building. Somebody then has to go back in and put the electrical wiring plan and the specifications for the doors and the specifications for the plumbing and all of the other intricacies that go with the building, that new building.
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And it sounds like the original vision of this was wonderful and good. Now you are down to the fine print, and the plumbing and the wiring, and the—the layout and the fixtures. And that is where the lawyers come in and get their bad name, because they have to then work out the wording for that; to take what seemed like a good, wonderful idea and translate it into something concrete that then nobody can go into court and litigate about.
I yield back.
Mr. BARR. Thank you. I would like to at this time recognize for 5 minutes the distinguished former Chairman of the Committee, the gentleman from Pennsylvania, Mr. Gekas.
Mr. GEKAS. Yes, I thank the Chair. I said at the outset that I was surprised that we are back in Committee determining the—the future of the compact that I thought was already in the process of being finalized.
Then I look at the record from the last hearing in which I myself said, ''I fear that the failure to agree on allocations will bring this matter back to the U.S. Congress, and I am trying to avoid that.''
I didn't avoid it. Nobody avoided it. And we had assertions, and we felt very confident that the allocations portion of it, as complicated as you have now made it seem, was already 95 percent completed or about to be completed, and we felt that the compact would find its final form.
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The question I have now is that if we do—if you are able to bring about a formula for the allocations, agreed to by all of the States, that in itself will be the basis of a compact, will it not, one that either will arrive separately in our Committee or will be appended to the current bill that had the original three counterparts to the original compact?
How do you view that, Mr. Sherk? Let's say that you do come up with a formula for allocations agreeable to all three States.
Mr. SHERK. It would have to be agreeable to all three States and to the Federal Government.
Mr. GEKAS. Are we going to amend what we now have in front of us, or are we going to start all over again with a new compact?
Mr. SHERK. I think Mr. Muys was entirely correct in that the existing compact is an authorization to develop a compact. Assuming that the allocation formula agreement is ever put into a form that it can be brought to this body, I think it would be cleaner and more efficient to treat it as a new compact and not an amendment to the existing one, because there are a number of minor issues in the existing compact that need to be either resolved or eliminated. I think it is simpler to eliminate the existing one and replace it with a new one than it is to try to correct the problems in the existing one. There is precedent here on States that have gone through a series of compacts, agreements on the Great Lakes, for example, instead of trying to amend an existing one.
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Mr. GEKAS. And, of course, Newt, we are talking about if the Congress wanted to act on its own and do the allocations, that the Congress arbitrarily do the allocations, we would still have to have the same database and the same experts and the same agencies involved to give us the data on which we should make the allocations separate and apart from the compact, but to deal with the allocations. So we are still—we still need you, meaning the three States, to do your work with the Federal agencies. We have got to stay within the compact system to do it. Do you feel that is the——
Mr. GINGRICH. Well, let me just say—like Mr. Thomas, I am not a lawyer, so I will yield to the experts here at the table in a minute. But my understanding of precedent is that on at least two occasions the Federal Government has, in effect, asserted itself to pass by legislation decisions without State compacts, under Penna. Therefore, I don't think they have been challenged in terms of technical power.
So presumably the Federal Government could impose—now whether you could get the three State delegations to agree to something which the three States don't agree to is a different issue.
My point would be that one of the more disappointing aspects of the last 4 years has been the failure, in parallel with the negotiations, to develop the database. There does not exist today a modern database and a modern model of one of the most important river systems in the United States, which was clearly our intent—as I mentioned and Mr. Watt picked up—to his fellow North Carolinian back in the letter we sent in 1997.
So if the Federal Government would decide tomorrow morning to intervene, it would not have dramatically better information than we had back in 1997. I think that has been a major weakness in the follow-up to the initial idea. My guess is that the advice that was offered is probably right. That is, if the States can come back and work with the Federal Commissioner and reach an agreement that is implementable, you are probably better off to pass it. To eliminate what has become, I think, lawsuits over the very nature of the agreement, you would probably be better off to pass a freestanding new compact. And my guess would be if the Federal Commissioner and the three States can reach an agreement, you have relatively modest opposition to passing such a clean new bill.
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Mr. GEKAS. The only question that comes back to my mind, then, is why did we engage in this in the first place if everybody in the world knew that the uncharted question of allocations was left wide open? Why did we engage in bringing the original provisions of a compact when we—you all knew that it could not be completed without the allocations formula.
Mr. GINGRICH. If you will yield. Chairman Barr might want to comment, since he is the guy that did all of the heavy lifting after we sent the idea up here. But the original decision was, with Governor Miller's strong support, that we were on the brink of breaking down completely in negotiations and ending up in court, and that it was dramatically more desirable to get people negotiating in a framework than to have them litigating.
And, again, you have to say yes, it has been frustrating. But if we were now in the fourth year of a lawsuit, would we be actually further away from reaching agreement? I think that is a fair summary of why we acted the way that we did. And we narrowed the issues down from where they were that morning pretty substantially.
We had dramatically more issues the morning that this negotiation began, and we actually cleared most of those up to get to this final process on what is a huge hurdle but nonetheless a definable specific hurdle.
But, again, I would yield to the Chairman who actually did more to carry the details than I did. But our goal was to avoid litigation and get a framework for a focused, clear agreement in which you could hold the three States accountable, have the Federal Commissioner there to protect national interests, but get the job done. I think that a fair summary of what our thinking was at the time.
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Mr. GEKAS. I yield back the balance of my nontime.
Mr. BARR. I thank the gentleman from the Commonwealth of Pennsylvania. I would like to have a second round of questions at this time. Are you all okay timewise? Thank you.
One of the documents, Commissioner Thomas, that we inserted in the record at the beginning of this session today was that letter dated December 10th from Assistant Attorney General Dan Bryant. That was responding to a letter that I had sent the Department on November 2nd, and I copied you on the letter as I tried to do on all of our correspondence in these matters.
Did you receive a copy of the Department's response?
Mr. THOMAS. Yes, we did, Mr. Chairman.
Mr. BARR. Okay. Thank you. One of the issues—and I think probably all of the witnesses today have touched on it in one form or another, but it is touched on also in this letter from the Department of Justice—concerns the basis of your concurrence or nonconcurrence and whether or not the—the allocation formulas and the agreements will be—are consistent with Federal law.
The Department, at the final paragraph on page 1, and I quote: ''you also inquire about the meaning of the requirement that a nonconcurrent decision be based solely upon Federal law. First, in the Department's view, the term 'Federal law' should be given a broad reading. Federal law includes statutes, Federal common law, regulations and Executive orders, as well as any other species of Federal legal authority, that is, law of the United States within the meaning of the Supremacy Clause.''
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Has your office, your attorneys, Mr. Thomas, compiled a—a compilation of all of those Federal laws, so that—do we know what the universe is that you will have to use in—as the basis for your concurrence or nonconcurrence?
Mr. THOMAS. Mr. Chairman, it wouldn't be complete at this time, but that is exactly what we are engaged in. It is what the last two meetings have been, is to go into those areas of interest that will bring to the surface, in my opinion, those laws, rules, and regulations with which we must come to conclusion on.
So I would say to you it is an ongoing process at this time. I would only add something, if I might here. I didn't get into the last round of statements, but I think this is the one thing that we must remember at this moment, is that we are still engaged in a—in a process of changing, bringing our interests to bear, working with the States to make our interests known. And the truth is, much of what is a matter of concern might be cleared up in that process. I just don't want us to forget that that is ongoing at this time.
So this will be assembled, and I think it can come only as we get deeper into the matter of actual negotiation with the States and see clearly the final formulas and make clearer our interests made known to them.
Mr. BARR. Is there any—would it—would you agree, though, that the list of Federal laws that must be complied with in order for your concurrence—that is an awesome responsibility that you have, I know, and a very complicated set of procedures that you have to go through—but would you concur that the universe of Federal laws is indeed large and goes far beyond just those that might come quickly to a layperson's mind, the Clean Water Act and the Endangered Species Act, that is really just the tip of the iceberg?
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Mr. THOMAS. The Harbors and Rivers Act and the Drinking Water Act, as you say, are some of the better known ones. There are others. As I say, I think these things will be brought to the surface.
We have legal counsel in each department that works with us. And I pointed out there are 10 Federal agencies working with us, and Justice added is the 11th. So I think that that world of law and rule and regulation in the process as we move forward will all be brought to the surface, and it can be very extensive.
My hope is, however—and I made this comment to the members of the States' negotiating team last week—that given an opportunity to work with us and allow us to truly show the Federal interest, that we can avoid the very thing we are talking about here today.
Even going back to your other comment of compensation for other loss or damages to Federal interest, that if we can get on with the negotiating process, if they will be with us on understanding our interests more clearly, our whole effort is to avoid just that; and even to build into a compact agreement things that we are particularly interested, of what we would refer to as the sort of an adaptive nature that will allow us, if we begin to run into conflict, that we can go back and make adjustments. This would be a tremendous asset to the Federal interest, in my opinion.
But I guess the last thing that I would simply say to you is that I am confident with the talent that we have, that the day will come, however it comes about, when we can come back here before the Members of Congress for whatever the reason is, if it is for a reauthorization or whatever, and you will have confidence in our ability to look into all matters Federal and to be sure that the Federal interests have been protected and brought to the surface.
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Mr. BARR. Do you agree with the characterization with regard to the term ''Federal law'' being given a broad reading that the Department sets forth in this letter?
Mr. THOMAS. I would refer again to the fact that I am not an attorney and would refer to our counsel. And I would like to get to you a further response from us. In large now, this letter has been shared with the States for their evaluation.
I will only add this. We never get together on legal matters but what there are not contrasting opinions. That is not my job to try to get to the bottom of that, but to get on with the picture clear enough so we can attach those laws that apply. That is what we will do. And I will work with my counsel to bring that about.
But I, again, am a bit reluctant at this moment to try to give a full-fledged opinion as to my response to this letter. If we are going to work through it, I am going to do what our attorneys advise us is in the best interest, and with your help we will get all of that done.
Mr. BARR. The gentleman from North Carolina.
Mr. WATT. Thank you, Mr. Chairman. I just wanted to ask one question and I am going to yield back to the Chair.
Mr. Thomas, former Speaker Gingrich has indicated that he thinks that it would be a good idea to have the universities involved in dealing with the science and modeling. I wanted to get your reaction to that, and then get both of your reactions, if you think it is a good idea, to what if anything we might do to incentivize that.
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Mr. THOMAS. Mr. Chairman, we couldn't have too much good information. There is no doubt about it. In my own world, if I had gone back through this whole process, I would have set aside a period of time—and this speaks a little bit to the time frame we are in—that would have been about nothing but gathering and being assured that we had all information needed and pertinent on the table.
We went directly into the process of negotiating, and things have sort of then come out as we moved forward. We would welcome any good and valid input. We are aware of research from Georgia Tech that one of the agencies has been involved in. It has been shared with other agencies. I am also aware that we have tremendous Federal resources that I am relying upon.
And so I guess, to answer your question, we welcome it, we will utilize it. That—I have found so far that the information that comes like this—and it comes from many sources—if it has legs on it, it has its impact. Dr. Georgakakos' work is out there. We are aware of it. It has had its impact. We would appreciate any help to get any information that we can utilize, and it is valid, on the table.
Mr. WATT. Mr. Speaker, how would you formalize that, and are there things that we can do at this level or should be doing at this level to incentivize it?
Mr. GINGRICH. I am really glad you asked this question, because I think it is really important not just for this particular river basin, but as a model for the country. I was very impressed by the work that had been done, I think by the Corps of Engineers originally, in both San Francisco Bay and the entire river system feeding into the delta there, and the work that has been done on the Chesapeake.
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I really had hoped that with the EPA having more research money which they have gotten over the last few years, and a larger research function, I had hoped that we would drift toward a—a joint process in the major river systems of this country of that kind of monitoring. There are a number of places in western Europe that now have much more sophisticated monitoring than we do.
We have the capability, I think, to have dramatically more information. And I really favor a science-based approach to managing river basins rather than a political approach to managing river basins. So I think you put your finger on it. I would hope that EPA—there are a number of agencies, and Commissioner Thomas can give you the long list.
But I would say on this issue, that between the Corps of Engineers, the Fish and Wildlife Service, and the EPA, there ought to be a routine process; they should find a way in every major river basin to create the kind of scientific framework we are describing to find a modern system of sensing—looking into remote sensing ways now in ways that were not thinkable 15 years ago.
You can build a model that people like the folks at Georgia Tech are used to doing now, and I think that you could dramatically enhance the information framework. The reason that is important is in the end this comes down—you are an attorney, I am not—this comes down to how lawyers and politicians operate in equity situations; which is, you negotiate to the point to get the most you can without whatever the worst outcome would be for you. So there is a point where you get bluffed and give in. But more information increases the public pressure to reach a higher value solution for the public interest, rather than simply the lowest common denominator. It does change. As Commissioner Thomas said, the more information that we can get, the better; because it changes the context of the negotiations.
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I would strongly encourage this Subcommittee to write EPA and Fish and Wildlife and the Corps and see if there isn't some way that the three could work together, even at this stage of the negotiating, to set up a system of routine monitoring; because, after all, this is a permanent problem. We are not going to reach a decision tomorrow morning and then say from here on out we have solved it. Water flows are going to change. Climates are going to change. The amount of rainfall we get may change. And, therefore, 5 or 10 years from now, we may have very different conditions on these rivers and we need a permanent process of monitoring with large river basins that gives us real information on a regular real-time basis against a historic dateline, and then against a computer modeling that will get more and more effective over the years.
Mr. WATT. I would just say, Mr. Chairman, that in an adverse situation following the extensive flooding from the hurricane in North Carolina, there was a lot of models and monitoring mechanisms set up to try to figure out what longer-term impact that was going to have on the rivers and waterways in North Carolina. So I am a big supporter of that.
I will yield back to the Chairman and ask unanimous consent that the Chairman have as much time as he may consume to finish his questions. I don't have anymore questions. I keep saying that, but then I keep asking questions. I am serious this time.
Mr. BARR. They are good questions, as the witnesses have indicated. I concur. Thank you.
Mr. Muys, in an earlier discussion and question with Mr. Thomas, we touched on the area of compensation, for example, for lost hydroelectric power if the Federal reservoirs in the two river basins are converted to water supply facilities. Would not that same principle requiring compensation, or at least addressing the issue of compensation, apply with regard to other Federal benefits that would be negatively impacted or foregone if the reservoirs are converted to water supply facilities and if the allocation formula changes those?
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Mr. MUYS. Well, I think with respect to compensation that a court might award if the Federal Government somehow was in a position of seeking compensation, that would be difficult to predict what the court would feel is a compensable Federal interest that has been yielded. But in the context of negotiating a compact, or, better yet, in the context of the members of a compact commission to an ongoing adaptive management program, trading off—the States trading off values of one sort or another with the Federal Government, with other States, those kinds of matters could be asserted to be compensable, and I think should be compensable in the sense that they are benefits flowing to particular beneficiaries. They ought to be in the—on the table, in the whole discussion of what is an equitable way of allocating the river.
And I think, following up on Speaker Gingrich's point, it would be a happy day in the millennium, probably, if we could get a science-based approach to interstate compacts. But you would need a new paradigm of negotiating philosophy. You would need the States and the Federal Government to put the health of the river basin at the top of the priority list, and then recognizing that it is a shared resource, and that the States and the Federal Government are going to do what is best for that basin.
And some States may feel that they are shortchanged. Other States may appear to have gotten a windfall for a short time. But these are matters that if you had an ongoing commission with the power to adjust the initial allocations—and I might say after all of the years of looking at compacts, I am not a great advocate of making fixed allocations in compacts anymore—like the Delaware River Basin approach where they didn't make an allocation, they created a commission that has authority after negotiations, developing the science, doing the trade-offs, to make allocations among the States by agreement.
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But, in any event, the question of lost Federal benefits certainly ought to be a factor in coming up with an allocation formula, or, if we don't do an allocation formula initially, with administering the river in the best interests of the river and its resources.
Mr. GINGRICH. I just want to build on his, if I might, Mr. Chairman. It struck me listening to you—and this may be something worth asking the General Accounting Office to look at—if one were to take all of the legal fees spent on water litigation around this country, and look at 20 percent of that having gone into, in effect, river science, we might be in a much healthier and much more knowledgeable framework, and it is particularly compounded, because as you said, reaching a litigated or politically negotiated, stable agreement in what is an inherently unstable problem, is in fact in the long run not as productive an outcome.
So I would say it would be interesting to know from the GAO or someone, what does it cost this country annually to litigate and negotiate; and, by comparison, how much do we spend to learn about rivers?
And I do think that river health and the health of the bodies it empties into ought to be the first step, because that is what we owe our grandchildren, is inheriting a system that is still healthy. Then we get to use it. But not using it and then leaving them whatever is left over.
Mr. BARR. Thank you, Mr. Speaker.
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It is my understanding, Mr. Speaker, that you have to leave shortly. If I could then refer to Mr. Sherk's testimony, particularly his written testimony. And one of the points that he makes, and I think he touched on this, is that the—at least the draft ACT allocation agreement seems to go far beyond simply an allocation formula and would seem, on the surface at least, to involve itself in changing, if it is adopted, changing Federal law, something only Congress can do.
For example, the law authorizing Federal projects, the purposes thereof. Do you see that as a problem? Are you familiar enough with the terms of the draft agreements?
Mr. GINGRICH. Let me say I am not familiar enough with the terms in detail in the draft agreements, but I am familiar enough with the process of those kinds of agreements to say that I think it was clearly never the Federal Government's intent to allow States negotiating in private to rewrite Federal law.
And I would be very cautious about the Federal Government accepting a proposed compact which in significant ways would limit the Federal Government or tie the Federal Government's hands on some of these issues. And I would certainly encourage both the Commissioner and the agencies to scrutinize that with skepticism and to be prepared to recommend significant changes back to the States, if necessary, to have them conform to Federal law.
I understand how local leaders might decide this was a great occasion to carve out for them exclusion from Federal law, but I don't think that is the intent of the legislation.
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Mr. BARR. Thank you, Mr. Speaker. Mr. Speaker, I know you have another engagement. We appreciate very much your spending a great deal of time with us here today. And would you, as Commissioner Thomas has indicated, be available for some additional questions that we could submit to you?
Mr. GINGRICH. We absolutely would. And I want to commend both you, Mr. Barr, and you, Mr. Watt, for the time that you have put into this. And, as you were pointing out about the rivers, particularly in eastern Carolina after the hurricane, the correct use of our water resources is really important to the future of this country. And I think what you are doing today is a very important building block in where we are going.
I thank the two of you and your staffs for the time that you have taken to let us come and try to share with you. Thank you very much.
Mr. BARR. Thank you, Mr. Speaker.
One of the issues and one of the points that the Speaker did touch on concerns outside independent studies, including but not limited to the—the modeling that Dr. Georgakakos at Georgia Tech has done. And I know, Mr. Sherk, that you are very familiar with that. I think probably all of you are.
Could you comment on that, Mr. Sherk? I know a number of us have tried to secure more independent analysis so that all three of the States are operating from a common and scientifically sound and accurate and current base of information, so that we know how much the water flows are currently and how much they have been historically and how much is taken out as sort of the starting point.
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I think one of the points that the Speaker made in his testimony today is that we don't seem to have even gotten to that point yet. But if you can comment briefly on the modeling. We do have modeling, as you know, the HEC-5, and in addition to the work that Dr. Georgakakos has done, but we have not been able to get very far in getting EPA to recognize, I think what I view as the value of having solid outside independent analysis.
Mr. SHERK. I would have to agree with the Speaker—we cannot have too much good information—and with the Commissioner on that point.
The need for basic information was recognized a decade ago. This conflict has been going on since the late 1980's. We don't have the basic science we need.
I will give you one example. There are either 65 or 66 threatened or endangered species in the six river basins that specifically rely on water resources. They are aquatic species. They use riverine habitat. We don't know how much water those species require. We know under that supremacy clause that the Endangered Species Act will supersede State water law, but we don't know how much water is required. We don't know the basic scientific information on which any successful approach to adaptive management can function.
For example, if we don't have baseline data, we don't know if there is an adverse impact. The baseline data is critical and we don't have it. There are models that will assist us. Dr. Georgakakos's work at Georgia Tech is world class. I cannot praise it too highly. I consider his work to be some of the best work that has been done. The difficulty that we have had with the results of his modeling is that it conflicts with approaches taken by other agencies. It gets us to the question of whose science, not what science.
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For example, the Corps of Engineers, when it modeled the impacts of the draft ACT allocation agreement of December 2000, it got very different results on a number of points than Dr. Georgakakos. There were two reasons for that. One is that the model that the Corps of Engineers ran did not include the operating guidelines that were in the December draft ACT agreement. The other is that Dr. Georgakakos included intra- and interseasonal variability that was not very well included in the HEC-5 model. The results showed—from Dr. Georgakakos showed that the effects of the draft ACT agreement of last December would have been dramatic: failure to meet the requirements of the Clean Water Act something on the order of 40 percent of the time, somewhere between 3 and 5 percent of the time having zero flow in the river.
It is very difficult to meet the requirements of the Clean Water Act when there is no water. That kind of analysis has to be done on the ACF when there is an ACF agreement. It has to be done in an ongoing manner. We consistently get better. The Speaker, for example, noted the advances that we have made in remote sensing. Input from those systems will continue to allow us to refine models, to determine impacts.
Given the demands for water in the six river basins, the population growth, the requirements of Federal and State law, every single drop is going to have to be used and it is going to have to be used repeatedly, wisely, and efficiently. We can do none of those absent a solid scientific database.
Mr. THOMAS. Mr. Chairman, let me make a couple of comments. I certainly associate myself with the former Speaker's comments about the science, and I have already said that. We need all the good information we can get. But I don't want the impression left here today that we are not proceeding with very good science that is already on the table.
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To site a few of those, for example, on instream flows, Fish and Wildlife Service and EPA have done instream flow guidelines. Those have been delivered and shared with the States. I appreciate very much Mr. Sherk's comments, but we all must understand that a riverine system is a living organism that—almost an organism, I want to call it—but it is a living entity that has periods of drought and cycle, it is influenced by broad floodplains, and much goes on that pertains to the life there within.
We certainly can establish, in my opinion, guidelines for how much water is needed to sustain certain species. But to get that down to a level of definitive flows right down to the gallon, in my opinion is just—is probably not impossible, probably is not needed. But what we do need are good guidelines in which we can work. Those have been established by EPA and Fish and Wildlife. The other thing——
Mr. BARR. Why—are you familiar with why the EPA has so adamantly opposed, though, any outside independent analysis, such as that which could be provided by Dr. Georgakakos?
Mr. THOMAS. I am not aware that they have adamantly opposed it. We have seen Dr. Georgakakos's work. In fact, we even model his work. And when you put the same inputs to the Corps' models that we have with Dr. Georgakakos's, we got the same results. And the truth is, and I—I think you are probably aware of this—it was EPA who helped fund the Georgakakos study.
Mr. BARR. The preliminary one. But then we have gone back to them, and others have as well, to encourage and suggest that further—if in fact we all agree that, you know, we can't have enough, I think to quote you, ''scientific data,'' they are opposed. I mean, they have told us this. They will not fund any further independent studies, including Dr. Georgakakos.
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Mr. THOMAS. Well, that gets a little bit out of my——
Mr. BARR. At least at this point, with their current leadership.
Mr. THOMAS. It gets a little out of my bailiwick. When good information comes up, we look at it, review it. We have had comments and statements from all over the place. And when they back a factor, we have tried to address them and allow them to be used and utilized by our people.
So I have no objection to it. There is no process set up within our organization to prevent that.
Mr. BARR. Is your position still that you are opposed to development of such an outside independent model?
Mr. THOMAS. No, sir, I am not opposed to the development of an outside model.
Mr. BARR. Okay. Because we were told by former EPA Acting Regional Administrator Myberg when he said EPA would not be providing funding unless you consented, and that you opposed development of such a model.
Mr. THOMAS. Mr. Chairman, that is not an accurate statement. And I—I hesitate to disagree with Director Myberg, but my comments have been clear about this from the start. We did not make the initial request for that study. I have gone along with what we have available through the Federal Government's sources, the Corps of Engineer's modeling, and I will tell you that we have got some very good modelers. And until such time that I see that we either don't have the resources, or our resources, we concur through our working group, are not adequate, then I don't think it appropriate for me to go out and encourage or to ask for funding for this type of thing when there are many other things such as monitoring that we need.
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But to state that I am opposed, that is not correct.
Mr. BARR. Thank you. Before—I just had a couple of other things to move on to, Mr. Muys and Mr. Sherk. Was there anything else you wanted to add with regard to the issue of modeling that we have been discussing?
Mr. MUYS. Mr. Chairman, it seems to me from the amounts that I have heard spent on data collection in those basins, there has probably been more spent on gathering data for these two compacts than has been spent for all other 24 water allocation compacts on record. Most of them went in relatively blindly, so I think we are doing a good job on gathering data. But I don't know whether it is adequate yet or not, frankly.
Mr. BARR. Mr. Sherk, another area that I know, both from reading your written remarks here today as well as being familiar with some of your other work, that you have done a great deal of work on and given a great deal of thought to are interbasin or transbasin transfers. Could you briefly summarize why this is an important issue in the context of considering the water allocation agreements in these two basins?
Mr. SHERK. The current version of the allocation agreements assume a number of interbasin transfers. If you look at the topography of north Georgia, you would see that Atlanta, which sits basically astride the Chattahoochee, is in a fairly narrow drainage basin. That means that future water supplies have to be moved from one basin to another. Existing water supplies are being moved from one basin to another. There is an acknowledgment that this will have to increase.
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There is a problem. Georgia has created—the Georgia legislature has created an interesting situation in which they enacted legislation providing for permits for transbasin diversions while at the seem time reaffirming their commitment to the riparian water rights doctrine. And the riparian water rights doctrine, of course, prohibits transbasin diversions.
We are not sure what that means. If we take the existing approach of statutory interpretation to construe everything the legislature does to give effect to all of the terms, we get a conclusion that the permits are only allowing transbasin diversions that do not have adverse impacts downstream.
The downstream riparian water right user has a right to the flow. When that user is adversely impacted by an illegal use upstream, that user has the right to seek to enjoin or seek damages from the diversion.
The Atlanta metro area will be diverting water out of the headwaters of the Coosa and the Tallapoosa. If there is an adverse impact downstream, that riparian right holder could challenge the diversion.
There was a similar case in Purcellville, Virginia, for example where the court ordered the city to stop the diversions and to remove the dams from which the—that created the impoundments from which the diversions were taken, but stayed its order so that the city had sufficient time to condemn all of the downstream riparian rights.
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That may very well be what we will see here. We don't know. Because of the reasonable use limitation that is contained in the compact, the definition of what is reasonable will change yearly. The definition of the transbasin diversion as being unreasonable will never change. That is inherent in the riparian rights doctrine.
So we have a situation in which we have conflicting State laws that cannot be resolved, I don't think, in this compact—in this allocation agreement unless we see that—unless it comes back to Congress and is ratified, becomes Federal law, and therefore supersedes the riparian doctrine in Georgia. I am not sure that anyone wants that to happen or is even aware that it would happen.
Mr. BARR. The term you used ''reasonable use,'' that is a term that is in the ACT draft agreement, correct?
Mr. SHERK. That is correct.
Mr. BARR. To which Alabama has concurred or agreed?
Mr. SHERK. My understanding is that Alabama has concurred with that language. The language——
Mr. BARR. Notwithstanding the fact that it would seem to be unenforceable or indeterminable.
Mr. SHERK. That is correct. There is no way to determine what a reasonable use is. And add to that the complexity that what is reasonable today may not be reasonable tomorrow, when a use that is reasonable when there is abundant supply may be unreasonable when there is drought.
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I honestly don't know why the negotiators from Alabama accepted the agreement. The language was changed because the draft agreement that preceded it, the December 2000 draft, limited Georgia to 25 percent—Georgia's diversions to 25 percent of the average annual daily flow. And the fact that it was based on an average instead of actual daily flow is the model—led to the analysis by Dr. Georgakakos.
By using an average instead of an actual flow, you ended up with a situation where the stream was dewatered when the actual flow was less than the average flow. Why Alabama accepted a worse solution than it had initially would have to be answered by the folks from Alabama.
The interesting aspect of it is, irrespective of these negotiations, reasonable use was the rule when the lawsuit was first filed in the late 1980's. So, in essence, after years of negotiations, we have arrived at square one.
Mr. BARR. In looking at interbasin or transbasin—by the way, can those terms by used interchangeably?
Mr. SHERK. They generally are.
Mr. BARR. In looking at those sorts of transfers, is there a compensation issue? We were talking earlier about compensation in the context of certain other—certain types of rights that would be negatively impacted, or uses that would be negatively impacted. Would this be an area that could possibly give rise to questions; either legislative or litigation questions concerning compensation?
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Mr. SHERK. These types of diversions have given rise to those questions in a number of other States and a number of other basins. There have been all sorts of different types of compensation.
There is a generally recognized obligation to provide compensation to the donor basin. When Virginia and North Carolina were arguing, for example, there was legislation enacted in Virginia to establish a trust fund to compensate the basin of origin for the benefits that were lost by the water that was leaving the basin.
California, Colorado, a number of other States, have legislation that mandates payment of compensation in one form or another: mandatory crop insurance, for example, in low water years; compensatory storage where storage facilities are constructed in the basin of origin to make available supplies for the transbasin diversion; any number of other ways to measure the compensation.
But the rule I think that has emerged—I would ask Mr. Muys if he is familiar with this as well—but I believe the rule that has emerged is that there will be compensation for the donor basin.
One suggestion that has appeared repeatedly with regard to transbasin diversions has been the imposition of something similar to a severance tax to compensate the basin of origin.
Mr. BARR. Given the—I just have another couple of questions. I know you all have been very, very patient. I have got a couple of more questions. Then we will do some written follow-up questions, because I don't want to keep you all but just a few more minutes.
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Mr. BARR. Given the continuing drought in Georgia and other parts of the Southeast, I think it is a fair assessment that if we are going to allow or continue transbasin transfers, those are going to have a negative impact on downstream riparian rights. Maybe they won't, but I think we can safely presume that they will; that you would not be able to take out anything approaching a significant amount of water upstream by way of a transbasin, therefore, without it having a negative impact downstream.
Would that amount to—given the fact that riparian rights, as you have indicated, is a property right, would that then amount to a taking of property, giving rise to future litigation in terms of the takings clause, for example?
Mr. SHERK. I believe that it would if the impact became great enough. A minor impact is probably not a taking. The Supreme Court in Lucas v. South Carolina Coastal Council, for example, Justice Scalia writing for the Court noted that the impact on the property right had to get to a sufficient level before a taking occurred. What that level was was indeterminate apart from the facts of a given case, but once it got to that level, then a taking did occur.
One of the things we have seen in dealing with water conflicts is that they are always fact-specific. The great uncertainty here is that the adverse impact that is not a taking on Monday may be a taking on Tuesday, might not be again on Thursday, and could be a taking again by the weekend.
This introduces a level of uncertainty regarding the planning and management of water resources that is completely unacceptable if one is attempting to develop infrastructure, develop new facilities or develop a reliable water supply for future population growth.
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Mr. BARR. Does this impact also the downstream agricultural withdrawals in the water for agricultural purposes? Is that related to what we are talking about in terms of upstream transbasin transfers?
Mr. SHERK. Absolutely. There is no question about it. It is going to be very fact-specific, but the rights of the riparian are a function of the ownership of land that is proximate to the resource. It is not a function of the use to which the water is put. So the adverse impacts could be on downstream municipalities. It could be on downstream agricultural interests, downstream navigation interests, downstream industrial interests.
For example, Lake Allatoona requires a certain flow of water to go through it to keep it clean enough to be water supply. We have detected a fecal coliform in the reservoir, and a number of other pathogens in the reservoir. Those levels are kept low enough by a sufficient flow through the reservoir. If there is a diversion upstream, water is moved out of that reservoir, out of that drainage basin. The residents' time for the water would increase the possibility of—the growth of a number of human pathogens in that reservoir would increase as well. It could become a public health threat.
Mr. BARR. Would that, in your view, get us into the area that we sort of come full circle, then? We talk about looking at concurrence or nonconcurrence. If that indeed is a result of the allocation formula, could that be considered a violation of a Federal law because it would either render impossible a lawful function or a lawful usage of an impounded water reservoir, or would change dramatically the ability, for example, of the court to carry out that legislatively authorized function?
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Mr. SHERK. I think the Chair is absolutely correct. Any diversion that resulted in a downstream violation of Federal law in it would be sufficient and I think would mandate a nonconcurrence opinion by the Commissioner. This one would be relatively easy to determine. Some of the impacts would be difficult to determine, but this one would be relatively easy, because there is a definable quantity that is leaving the basin. It should be fairly easy to determine what the downstream impacts are.
For example, if there is a downstream hydroelectric facility licensed under the Federal Power Act, and the diversion adversely impacts the terms of the license, the Federal Power Act is violated. This was one of the issues that arose between the city of Virginia Beach and North Carolina, was the terms of the licenses for the hydroelectric facilities that would have to be changed if the diversion was allowed.
In the context of the ACT, if the diversion is allowed, then there will be a—then there very well may be a violation of the Federal Power Act. That alone could mandate nonconcurrence by the Federal Commissioner.
Mr. BARR. Mr. Thomas, I think you have got a very complex road ahead of you, but we have every confidence—I know I have every confidence that you will fulfill your mandate and do so admirably.
Do you have any final thoughts in terms of what this Subcommittee might do, or any of us, to assist in your efforts to ensure that, one, we do have a workable, manageable and lawful set of agreements here, and allocation formulas that will avoid some of the many, many pitfalls that we know are out there? And we have just really scratched the surface today in terms of the wide range of Federal interests and Federal laws with which you will have to keep in mind as you look at these.
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Mr. THOMAS. Mr. Chairman, first I would—I am sorry, Mr. Chairman. First I would thank you for having this hearing here today, and I think it has been a very constructive engagement. I would appreciate whatever the Committee can do, and there are areas. If you get down to some of the specifics that we are going to need down the line, we have talked about further science here, which I think there is no doubt there is a strong basis for that, although I want to again reiterate, we have some very good science that is being applied at this time. There will be further need for monitoring. We need more information.
I would suggest to the Members of this Committee and to our good friend Congressman Watt, who has been here today throughout this, as I said earlier, before it is over, every State east of the Mississippi, in my opinion, will at some point be engaged in serious water debates of the very nature that we are experiencing today. And so we have all got a lot to learn from it.
To the Members of Congress who are within and directly impacted and their districts are impacted, I would suggest that it is important for them and their staff to be up to speed on what is happening, and I will tell you and the other Members here at this time that whenever Members of the Congress deem it appropriate for us to come back and report to you, that we will be certainly glad to do it.
And I guess the bottom line is, we need all the help we can get, and thank you.
Mr. BARR. Well, thank you, and thank—we certainly thank the Speaker. We thank Commissioner Thomas, counselor, Mr. Muys, counselor, Mr. Sherk very much for your input today and your continuing interest in a very complex but, as everybody understands, I think, very, very far-reaching and important far beyond just the bounds of the three States topic.
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I would like to extend a special thanks to Mr. Watt for his patience and substantive involvement on this matter. I would like to thank the Subcommittee staff for the tremendous work they have done in preparing the materials and for the materials that they will prepare, because we will be submitting—as you all have been kind enough to indicate, you would be responsive to submitting some additional follow-up questions, and there are some that you all will certainly want to consult with your lawyers and maybe some textbooks and so forth. So we will get those on the record.
Mr. BARR. And I can assure the public as well as the three States that this Subcommittee will take a continuing and a very active interest in these negotiations, not only to ensure compliance with congressional intent, but to assist you in any way we can, Mr. Thomas, in your very, very important work ahead of you.
And with that, we will stand in adjournment.
[Whereupon, at 12:22 p.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
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RESPONSES FROM NEWT GINGRICH OF QUESTIONS FROM REPRESENTATIVE BARR
February 19, 2002
The Honorable Bob Barr
Chairman, Subcommittee on Commercial and Administrative Law
2138 Rayburn House Office Building
Washington, DC 20515
Dear Chairman Barr:
Below are my answers to your follow up questions to December 19, 2001 Testimony on ACT/ACF Water Compact Negotiations:
1. The Final Allocation formulas should be measured against the entire panoply of Federal statutory law and the parameters of agency discretionary authority. The most important are the Clean Water Act, The Endangered Species Act, and NEPA, but the whole range of Federal statutory law must be taken into consideration by the States and the Federal Commissioner in order to prevent future litigation by disgruntled parties. This includes such laws as the Federal Power Act, the Coastal Zone Management Act, the Fish and Wildlife Coordination Act, and the Marine Mammal Protection Act. In order to insure compliance with all of the various Federal Statutes, the Federal agencies and their technical working groups must be full participants in the development of the allocation formula. The States have acted in a parochial manner in this process and have attempted to rescind Federal Agency authority. It is my hope that the States will work with the Federal Agencies in a more cooperative manner and that the Federal Commissioner and the Department of Justice will ensure that the Federal agencies are more engaged in the formula development process and technical working groups.
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2. The Congress and the Subcommittee must provide more oversight of the Federal Commissioner, the Department of Justice, the Corps of Engineers, the Federal Agencies, and the States e this process. I strongly suggest a future Subcommittee Field Hearing in one or all three of the States to gather input from the State Negotiators, the respective Federal agencies, the Governors, the Environmental groups, and citizens. Future hearings on a routine basis should also be held based on the progress of the Compact negotiations. The Congress may want to consider the formulation of an ACT/ACF River Basins Caucus. Members of the Caucus could become more engaged in the process and provide individual oversight of the Commissioners and their work. The Congress should provide rigorous oversight of the Federal Commissioner and the Federal Agencies and the appropriations that they have received to work on the Compacts. The Congress and the Subcommittee must hold all the players to the standard of basing the negotiations on the latest science and technology.
3. The Federal Agencies must be treated as full partners in the development of the Allocation formula agreements. This will ensure that agreements are put together that will pass all Federal statutory laws and regulations. It will also encourage greater cooperation among the States. The current framework allows the States to narrowly focus on parochial or even regional interests within their own State with no serious consideration being given to Federal concerns and interests. Currently the States are even able to discourage Federal agencies from bringing in experts and models that use the latest science and technology that could assist the negotiation process. Attempts by the States to rescind Federal authority in the process should cease. Consideration may want to be given to the model of the Delaware River Commission, which entitles the Federal Commissioner with the option of having a vote on the Commission.
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4. It is my hope that the States will ultimately resolve these outstanding water allocation questions, but is going to require a significant change from their current behavior. The States are going to have to cease attempting to rescind Federal authority in the process and embrace the Federal Commissioner and the Federal Agencies as equal partners in all discussions and technical groups. The States will also need to allow for new models that utilize the latest science and technology and not continue to embrace antiquated models such as the HEC-5 and Stella. The States should give consideration to models such as the DSS by Dr. Ms Georgakakos at Georgia Tech. Dr. Georgakakos has used this model to model the Nile River and other rivers around the world for various governments. The States should also give consideration to negotiations that are based on consumption and not on minimum base line flows at the State lines. The States should do less legal wrangling and maneuvering and start to negotiate on the basis of science.
5. The greatest impediment to the, final resolution of outstanding issues is the threat of litigation. Current negotiations are being conducted with the legal end game in mind. The States should negotiate on the basis of science instead of legal maneuvering. There should be a concerted effort to drop all current lawsuits such as the State of Georgia's suit against the Corps of Engineers to require the Corps to release more water from Lake Lanier to Metro Atlanta. Water suppliers, and the Southeastern Power Administration's suit against the Corps of Engineers that claims the Corps has exceeded its legal allocations from Lanier to the Atlanta area water suppliers without paying compensation to SEPA. More litigation may be triggered if the State's continue to put forth proposals such as the current ACT Proposal of July 6th that is not based an strong scientific and technical principles. In addition, litigation may also be triggered if additional secret meetings and negotiations are conducted by the States shah as those mentioned by DOJ last year between Georgia and Alabama, Public involvement and an open process is one of the strongest tenets of the Compacts, and the absence of this would result in litigation from environmental groups or citizens.
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6. I do not currently advocate a Congressional solution involving legislation to resolve the ongoing negotiations. The Congress should provide strong oversight of the process and encourage the States to rededicate themselves to a resolution. The Congress should do more to clarify to the States the Federal role in the Compacts and encourage more proactive efforts by the Federal Commissioner. The Congress and Subcommittee should stress to the States that the Federal government is an equal partner in the negotiations and that there should not be further attempts to rescind Federal agency authority. The Congress and the Subcommittee may want to ask the Congressional Research Service to conduct a study of other Federal Water Compacts in the country and compare them to the ACT/ACF Water Compacts. It may also be helpful for CRS to provide clarification to the States on the ACT/ACF Water Compacts Legislation and what is required of them.
7. A litigation model is the worst way to resolve the issues. The States should be encouraged to avoid litigation at all costs. It is estimated that the costs of litigation will be between $3 and 5 million a year for each of the States. Any case involving the States and the ACT/ACF water dispute would automatically go to the Supreme Court where the average water case lasts between 10 and 30 years. Some interstate Water cases in western States are currently approaching their 50th year of litigation. In the event that the ACT/ACE water dispute case goes to the Supreme Court, it is likely that a Federal master could come in and impose a baseline moratorium for water withdrawals. This would be absolutely devastating to the entire economic region of Georgia, Alabama, and north Florida. In the growing economic region of Northwest Georgia where one county, Gordon County, separates Metro Atlanta and Metro Chattanooga, drought conditions could occur along the I-75 corridor if a baseline moratorium is put in place.
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8. The States have not negotiated with a comprehensive solution in mind. This is evident by the States use of antiquated scientific models such as HEC-5 and Stella, and their attempts to discourage the latest science and technology such as the DSS model by Dr. Aris Georgakakos at Georgia Tech. If the States wanted a more comprehensive solution they would use more comprehensive scientific models, instead of models that they feel will better serve their own interests. The States negotiating on the basis of minimum base line flows at the State lines instead of on the basis of consumption is another example of the States not wanting a comprehensive solution. Negotiations on the basis of consumption is much more comprehensive and could allow for greater consideration of Federal water needs and requirements. The States disregard of the Federal partners in the allocation process and the technical working groups is another example that the States are representing their own parochial interests. There have been attempts to rescind Federal authority in the Compacts and to manipulate and control and exclude scientific data and models in order to protect parochial interests.
9. The Subcommittee can provide vigorous oversight of the process and encourage the Federal Commissioner and the Federal Agencies to take a more proactive stance by engaging in the allocation formula negotiations and technical groups as equal partners. The Subcommittee could support the Federal Commissioner and Agencies in the development of a scientific data base that model the river basins using the latest science and technology. In development of the database, the University systems of Georgia, Florida, and Alabama should be engaged. The subcommittee may want to consider more research funding for EPA, USGS, and FSW to develop a database and real time monitoring of the Basins. The Subcommittee should reenergize the Federal Commissioner and agencies to compel the States to stop rescinding Federal authority in this process and begin negotiating based on science instead of political maneuvering and legal wrangling. The Congressional Research Service and other experts should be brought in to help provide information to the States to clarify the Federal position in the Compacts and the intentions of the original legislation with comparisons to the other Water compacts across the county. Additional research should be done to examine the cost of litigation in water disputes versus the costs of research to learn about rivers. The Subcommittee should also work with the Federal Commissioner and DOJ in answering that the States negotiate in an open and public manner. The subcommittee should consider having additional field hearings in one or all three States to get input, from the other players in the process.
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10. The subcommittee should encourage the establishment of an advisory committee consisting of experts from the University systems of Georgia, Florida, and Alabama to assist the Federal Commissioner. The States and the Federal Agencies should begin utilizing outside independent experts from this advisory committee and other places to begin coming up with a consistent model that can be used instead of the States using HEC-5 and the Stella models. The States should be encouraged to negotiate on the basis of consumption and not on minimum flows at the State lines. The Subcommittee should provide research dollars to U.S. EPA, U.S. Fish and Wildlife and USGS to develop a database and real time monitoring for the basins. Particular focus should be placed on helping to get better data in the ACF Basin in Southwest Georgia. We must get better data on irrigated acreage in Southwest Georgia and have a better understanding of the ACF basins relationship with the Georgia Aquifer. This database and real time monitoring system should be formulated with the goal being the creation of Research Center in the ACT/ACF basin that is a consortium of the Federal agencies and the University systems of Georgia, Florida, and Alabama. In addition, the Federal agencies should be equal partners in the development of the allocation formulas and the technical working groups. These Federal agencies should be allowed to hire independent experts to assist them in their efforts. Studies by CRS or GAO should be conducted on the costs of litigation versus research and planning. The Subcommittee should encourage the Federal Commissioner and the States to avoid litigation at all costs.
Your friend respectfully,
Newt Gingrich
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(Footnote 1 return)
Martin v. Waddell's Lessee, 16 Pet. 367,410 (1842).
(Footnote 2 return)
See, e.g., Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 283–86 (1997).
(Footnote 3 return)
United States v. Rio Grande Dam & Irr. Co., 174 U.S. 690, 703 (1899).
(Footnote 4 return)
Id. at 703
(Footnote 5 return)
Id. at 707. The history of the Congressional severance of federal land and water interests in the West is reviewed in California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935).
(Footnote 6 return)
For the history of the development of the federal reclamation program, see California v. United States, 438 U.S. 645 (1978).
(Footnote 7 return)
See, e.g., FPC v. Oregon, 349 U.S. 435 (1955); Ivanhoe Irr. Dist. v. McCracken, 357 U.S. 275 (1958); City of Fresno v. California, 372 U.S. 627 (1963).
(Footnote 8 return)
Arizona v. California, 373 U.S. 546 (1963).
(Footnote 9 return)
See, e.g., Hearings on S. 1275 before the Subcommittee on Irrigation and Reclamation of the Senate Committee on Interior and Insular Affairs, 88th Cong., 2nd Sess. (1964) (considering legislation directing the federal agencies to carry out their programs in conformity with state law).
(Footnote 10 return)
Virginia v. Tennessee, 148 U.S. 503, 518–19 (1893); United States Steel Corp. v. Multistate Tax Commission, 434 U.S. 452 (1978).
(Footnote 11 return)
Virginia v. Tennessee, 148 U.S. 503, 521 (1893).
(Footnote 12 return)
Green v. Biddle, 21 U.S. (8 Wheat.) 1, 86 (1823).
(Footnote 13 return)
Cuyler v. Adams, 449 U.S. 433 (1981).
(Footnote 14 return)
Virginia v. Tennessee, 148 U.S. 503, 517–20.
(Footnote 15 return)
Frankfurter and Landis, The Compact Clause—A Study in Interstate Adjustments, 34 Yale L.J. 685, 694–95 (1925).