Applicability of the Compact Clause to Use of Multiple State Entities Under the Water Resources Planning Act ( 1980 )

Applicability of the Compact Clause to Use of Multiple State
Entities Under the Water Resources Planning Act
A g re e m e n ts b etw een ' th e fed eral g o v e rn m e n t an d a sta te are n ot su b ject to congressional
co n sen t u n d er th e C o m p a c t C lause, U .S . C o n st. A rt. I, § 10, cl. 3; n o r are all a g re e ­
m en ts b etw een o r am o n g sta te s so su b je ct, but o n ly those w h ic h e n c ro a c h upon o r
in terfere w ith th e a u th o rity o f th e federal g o v ern m en t.
S tates m ay en g ag e c o o p e ra tiv e ly in a b ro ad ran g e o f p lan n in g a ctiv ities u n d er th e W ater
R e so u rces P lan n in g A c t w ith o u t o b ta in in g co n g ressio n al co n sen t, so long as th ey
im pose n o legal ob lig atio n o r disab ility on g o v e rn m e n ta l o r p riv a te parties.
C o n g ress has g iv en a d v a n c e co n sen t to p lan n in g activ ities o f the sta tu to ry riv er basin
co m m issions, but not to th o se o f in te ra g e n c y co m m ittees o r m ultiple sta te entities.
December 30, 1980
MEM ORANDUM OPINION FOR TH E ACTING DIRECTOR,
U N ITED STATES W ATER RESOURCES COUNCIL
This responds to your request for our opinion regarding the constitu­
tionality, under the Compact Clause,* of using federal-state interagency
committees or multiple state entities as sponsors for the preparation of
Regional Water Resource Management Plans. For the reasons stated
below, we conclude that there is a broad, although not unlimited, range
of planning activity that can be undertaken without the consent of
Congress. Consent is required only when two or more states agree
among themselves to impose some legal obligation or disability on state
or federal governments or private parties.
I.
Pursuant to the Water Resources Planning Act, 42 U.S.C. § 1962,
your agency coordinates and funds the development of comprehensive
Regional Water Resource Management Plans (plans). The Act author­
izes establishment of river basin commissions, comprised of members
from state, interstate, federal, and international agencies. The Commis­
sions enter funding contracts with your agency to act as plan sponsors.
They develop the various plan elements, submit draft plans to a wide
variety of interested parties for comment, and prepare final plans re-
• N o t e : T h e C om pact Clause, U.S. C onst. A rt. I, § 10, cl. 3, provides that “ (n]o State shall, w ithout
the consent o f C ongress . . . e n te r into any A greem ent o r C om pact w ith another State, or w ith a
foreign pow er. . . ." Ed.
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fleeting the comments received. They approve final plans on a consen­
sus basis, i.e., with all members either voting affirmatively or abstaining,
and transmit approved plans to your agency and participating states.
Your agency reviews the plans 1 and forwards them to the Office of
Management and Budget, which reviews the plans and transmits them
to Congress.
Existing plans are not legally binding on the participants or private
parties. At the state level, a plan is implemented when individual states
determine to follow its recommendations in budget and other matters.
Our understanding is that states usually do abide by plan provisions,
especially since they participate in plan development and exercise veto
authority during the approval process, but that individual states do
from time to time refuse to follow a given plan in some respects. At the
federal level, implementation occurs by application of your agency’s
Consistency Policy, which requires the Army Corps of Engineers, the
Department of Agriculture, and the Department of the Interior to
inform the Office of Management and Budget of those particulars in
which certain of their programs and projects are inconsistent with
approved plans and to provide reasons satisfactory to the President for
any inconsistency.2 The strictures the Consistency Policy imposes on
the federal government result from your agency’s voluntary action.
To date, river basin commissions have been established for areas
covering only about half of the Nation. You have sought to remedy
this deficiency, in part, by contracting with agencies established by
interstate compact. More recently, you have begun exploring the possi­
bility of contracting with interagency committees or other multiple
state entities to sponsor plans for regions of the United States not
presently covered by commissions or compact agencies. Interagency
committees are comprised of state and federal agencies; they help
coordinate government programs but possess few, if any, other
powers.3 Other multiple state entities could assume a variety of forms.4
Interested governmental agencies could take the leadership role. Alter­
natively, the states could coordinate their efforts, with either a state or
federal agency joining together to establish an interstate nonprofit cor­
poration along the lines of a council of governments.
1 See W ater Resources C ouncil, R eview o f Regional W ater R esource M anagem ent Plans (1980).
2 See W ater Resources C ouncil, Policy Statem ent No. 4: T h e U tilization o f C om prehensive R e­
gional W ater R esource M anagem ent Plans (1978).
3 A t least three interagency com m ittees are presently operating: the A rkansas-W hite-R ed Basins
Interagency Com m ittee, the Pacific Southw est Interagency C om m ittee, and the Southeast Basins
Interagency Com m ittee. W ater R esources C ouncil, Im proving the Planning and M anagem ent o f the
N ation’s W ater R esources 53-54 (1980).
4 See R eport to the W ater R esources C ouncil, Potential In terstate Institutional Entities for W ater
R esource Planning 12 (1980).
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II.
The comprehensive planning process can aptly be described as an
exercise in “cooperative federalism.” 5 Each step involves complex
relationships between the federal government and the states and among
the states inter se. In determining whether congressional consent is
required under the Compact Clause, it is necessary to examine closely
the nature and legal impact of the various agreements involved in the
planning process.
We believe that agreements between the federal government and a
state or states need not be submitted for congressional consent. The
states, which possess all powers of government not withdrawn from
them by the Constitution or delegated by the Constitution to the federal
government,6 are not barred by the Compact Clause from entering into
individual or joint agreements with the United States. To the contrary,
the Compact Clause, by prohibiting unconsented agreements with other
states or with foreign powers, at least by negative implication contem­
plates that federal-state agreements need not be submitted for consent.
The Framers may well have omitted federal-state agreements because
they believed that in such cases the party negotiating on behalf of the
United States could protect the federal interest.7 It would also run
counter to the fundamental constitutional principle of separation of
powers to give either house of Congress the equivalent of a veto over
agreements concluded by an executive branch agency. 43 Op. A tt’y
Gen. No. 25 (1980).** Because the Compact Clause is inapplicable to
federal-state agreements, your agency need not obtain consent for its
funding contracts with regional sponsors, or for any other obligations,
such as the Consistency Policy, which might be included as express or
implied terms of such contracts.
The planning process also involves agreements among the states inter
se. Not all such agreements are subject to the Compact Clause, but only
those “tending to the increase of political power in the States, which
may encroach upon or interfere with the just supremacy of the United
States.” Virginia v. Tennessee, 148 U.S. 503, 519 (1893).8 Interstate
agreements interfere with federal power in this sense if: (1) they involve
a subject matter which the Congress is competent to regulate, see
5 C f G rad , Federal-State Compact: A New Experiment in Cooperative Federalism. 63 Colum. L. Rev.
825 (1963).
8 U.S. C onst. A m end. X.
7 T h e records o f the C onstitutional C onvention furnish no light on the meaning o r purposes o f the
C om pact Clause. F o r discussions o f the historical meaning o f the C lause's terms, see generally F rank­
furter & Landis, The Compact Clause o f the Constitution: A Study o f Interstate Adjustments, 34 Yale L.J.
685 (1925); C om m ent, What Did the Framers o f the Federal Constitution Mean by "Agreements or
Compacts?" 3 U- Chi. L. Rev. 453 (1936).
• • N o t e : T h e cited A tto rn ey G en eral’s opinion is reprinted* in this volum e at p. 30 supra. Ed.
8 Accord. United States Steel Corp. v. Multistate Tax Commission. 434 U.S. 452, 467-71 (1978); New
Hampshire v. Maine. 426 U.S. 363, 369 (1976); Stearns v. Minnesota. 179 U.S. 223, 246 (1900); Louisiana
v. Texas, 176 U.S. 1. 17 (1900); Wharton v. Wise. 153 U.S. 155, 169-171 (1894).
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Wharton v. Wise, 153 U.S. 155, 171 (1894); and (2) they purport to
impose some legal obligation or disability, see United States Steel Corp.
v. Multistate Tax Commission, 434 U.S. 452, 467-71 (1978).
These principles permit the states to engage in a broad range of
planning activities without obtaining congressional consent. Although
water resources planning is undoubtedly within congressional power
under the Commerce Clause, see Kaiser Aetna v. United States, 444 U.S.
164, 173 (1979); United States v. Appalachian Electric Power Co., 311
U.S. 377, 426-27 (1940), many aspects of the planning process do not
impose a legal detriment on state or federal governments or private
parties. The states may agree, without congressional consent, to create,
fund, and participate in a regional sponsor empowered to prepare and
adopt a plan, so long as each state is free to accept or reject a plan or
any of its provisions and has the unfettered power to withdraw from
the regional sponsor. See United States Steel Corp. v. Multistate Tax
Commission, 434 U.S. at 473-78. Furthermore, nothing prevents the
states, acting independently, from adopting a plan as legally binding
within their own territories. The test is whether the state action is truly
independent or whether it is made instead in return for reciprocal
action by other states. Congressional consent would be required, how­
ever, for any plan calling for joint construction or operation of any
facility. Similarly, consent would be required if the regional sponsor
possessed any legally effective authority, regulatory or otherwise, to
ensure the plan’s implementation by state or federal governments or
private parties.
The Weeks Act, 16 U.S.C. §552, grants advance congressional con­
sent to interstate compacts, not in conflict with federal law, whose
purpose is “conserving the forests and the water supply of the States
entering into such agreement or compact.” Although broad in scope,
the Weeks Act does not amount to a congressional abandonment of its
duty to review all interstate compacts.9 Congress may delegate its
lawmaking authority so long as it provides some articulated standard to
guide agency action. By analogy, so long as it defines the category with
some specificity, Congress should be able to determine that a given
type of interstate compact poses so little threat to federal interests that
advance categorical consent may be granted. The Weeks Act consents
to the preparation and implementation of a forests and water supply
element as an initial stage of the comprehensive planning process. But it
does not consent to broader plans designed for other purposes, such as
regulating navigation, controlling floods, conserving fish and wildlife,
abating water pollution, and enhancing water-related recreation.10
9 But see M uys, Interstate Compacts and Regional Water Resources Planning and Management,
6 N atural Resources L aw yer 153, 174 (1973).
10 See W ater Resources C ouncil. Im proving the Planning and M anagem ent o f the N ation's W ater
R esources 30 (1980).
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The Water Resources Planning Act, we believe, grants advance
congressional consent to plans drawn up by river basin commissions,
since in authorizing creation of these agencies Congress was careful to
protect federal interests.11 But the Act does not similarly protect fed­
eral interests when plans are sponsored by interagency committees or
multiple state entities.12 Indeed, the Act nowhere specifically mentions
the possibility of such agencies acting as plan sponsors.13 Although it
appears that federal participants in some of these agencies might ade­
quately protect federal interests in a given case, it is highly doubtful
that Congress consented in advance to all agreements made by regional
sponsors, other than river basin commissions, in which the federal
interests happen to be represented “adequately.”
III.
Much can be accomplished without congressional consent. A multi­
ple state entity or an interagency committee may be formed, funded,
and authorized to sponsor a plan, so long as participating states retain
unfettered discretion to withdraw from the arrangement. The regional
sponsor may promulgate a plan, so long as it is merely advisory in
nature and there is nothing to stop individual states from independently
adopting the plan as legally binding within their territories. A forest
and water conservation element could be prepared that imposes legal
strictures on the affected states or private parties. The federal govern­
ment may choose to impose strictures on itself. Indeed, there is no legal
obstacle to the development of plans which would require congres­
sional consent when implemented. All that is required is that consent to
such plans be obtained at some time before they become effective in
ways which impair or threaten to impair a federal interest.
L a r r y L . S im m s
Deputy Assistant Attorney General
Office o f Legal Counsel
11 T itle II o f the A ct, 42 U.S.C. § 1962b, creates a detailed schem e for allocating state and federal
pow er w ithin a river basin commission. R iver basin commissions are established by the President, at
the request o f a state o r your agency, but only w ith the co n cu rrence o f at least one-half o f the affected
states. § 201(a). T h e chairm an o f a river basin commission is a federal representative chosen by the
President, § 202(a), w hile the vice chairm an is chosen by the states. § 203(b). T h e m em bers include
representatives from states, federal departm ents o r agencies, com pact agencies, and international
commissions. § 202(b)-(c). R iver basin commissions o perate on a consensus basis, thus giving both
federal and state representatives veto p o w er o v e r agency action. § 203(d). Finally, w ith respect to
plans prepared by river basin commissions, the A ct sets forth a detailed procedure for com m ent by
affected parties, review by your agency, and transm ittal to the President and the Congress. §204(3).
12 W ith respect to com pact commissions, the original congressional consent to the interstate com ­
pact should extend to the com prehensive planning process so long as the original com pact granted the
com pact com m ission p o w er to engage in this type o f planning.
13 You have not asked us to examine the statu to ry bases for your agency’s authority to designate
bodies o th e r than riv er basin commissions as regional sponsors, or for its pow er to subject plans
prepared by these bodies to the review procedures ordinarily given river basin commission plans.
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