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The action which your committee takes, Mr. Chairman, will be predicated upon your concern with the needs of the Nation as a whole. As an organization primarily concerned with promoting the economic development of New England, we would not presume upon the judgment of this committee with respect to the merits of S. 1111 as they may affect the rest of the Nation. We do submit to the principle of cooperative effort and we do feel that, insofar as it applies to the New England States, the perfecting amendment that we have suggested will greatly advance the efforts which we have made over the years in this direction. We are grateful to you for giving us this opportunity to appear before you.
The CHAIRMAN. Now, Mr. Bond, tell us in the next few minutes what this is about.
Mr. Bond. Mr. Chairman, the New England Council subscribes generally to the principles set forth in S. 1111. However, as you might note on page 3 of the statement, we suggest one amendment.
In essence, the council is not certain at all that this bill as it now reads provides for the cooperative efforts between States or between several States working in concert under the same conditions which title III of the bill now provides for individual States and, although this amendment is small, we feel that it fills a significant gap in the legislation.
The bill clearly establishes the relationship between the Federal Government through the Water Resources Council and the river basin commissions and between the Federal Government and again through the council on the individual States, but we feel that no specific recognition is given to the obvious fact that often in a given area effective water resource planning cannot be carried out by any single State, even with the aid of the Federal Government, but must be a product of the cooperative efforts of several States geographically linked in sharing common water resources.
Mr. Chairman, I would also request that a digest-I would ask unanimous consent that a digest which was prepared by the New England Council on the Northeastern Water and Related Land Resources Compact be inserted in the record.
The CHAIRMAN. Let's just see it first.
Mr. Bond. We feel that that would be particularly helpful to the committee in its consideration of this bill.
The CHAIRMAN. Unless there is an objection, this will be made a part of the record.
(The digest follows:)
NORTHEASTERN WATER AND RELATED LAND RESOURCES COMPACT — BENEFITS
TO NEW ENGLAND
(A digest prepared by the New England Council, April 1961)
HIGHLIGHTS (H.R. 30, 8. 374) Purpose of compact
The purpose of the compact is to coordinate Federal and State efforts in developing one of the most important natural resources of the Northeastern United States in order to stimulate economic development in the region. Creation of a commission
The compact's enactment by Congress will establish the Northeastern Re sources Commission with six voting members representing their respective States and seven voting members representing those Federal departments and agencies having principal responsibilities for water and related land resource development. In addition, a small permanent staff will facilitate the work of the commission,
1. Planning of water and related land resource projects. 2. Central collection and analysis of data ; maintenance of resource surveys. 3. Programing of construction and development.
4. Encouraging the referral of plans to the committee. Costs
The States are to make a combined appropriation annually of at least $50,000, apportioned on the basis of population and land area. The Federal Government is to contribute $50,000 each fiscal year. These funds will support the continuing activities of the commission. Voting
An affirmative vote of a majority of each group, both Federal and State repre sentatives, is necessary for any action of the commission to become official policy except on matters concerning its internal management. Limitations
The activities and responsibilities of the commission shall not infringe upon the activities and responsibilities of any other State or Federal agency. The Federal and State Governments are not bound by acts of the commission, which are restricted to planning and coordination.
The floods of the midthirties resulted in the National Flood Control Act which authorized the Corps of Engineers to make extensive flood control studies of the major river basins of the Northeastern United States. Flood control plans were developed and are gradually being carried out. However, floods constituted only one aspect of the overall water and land resources problem. This fact was recognized by the Federal Government and in 1950, the so-called New EnglandNew York Inter-Agency Committee (NENYIAC) was created by Executive order of President Truman to study the whole complex of problems—water pollution, soil conservation, water power, and recreation to name just a few. This committee was composed of the six New England States and New York, the Federal Departments of the Interior, Commerce, Labor, Agriculture, Army, Health, and Welfare, and the Federal Power Commission, with a representative of each having a single voice and vote. The result was a voluminous report which included an inventory of water and land resources, presented problems and obstacles, and drafted plans and programs to further the region's economic de velopment. The Federal Government and the States were then faced with two problems: (1) to coordinate State and Federal programs and (2) to review old plans and draft new ones in the light of changing conditions.
In 1956 the Governors of New England and the Inter-Agency Committee on Water Resources of the Federal Government set up a Northeastern Resources Committee started by NENYIAC. Due to its lack of official status, problems of financing and staffing arose. On March 2, 1959, the Governors of New England unanimously agreed to strive for the establishment of a compact agency to alle viate these problems, and enabling legislation was introduced at the State level, Four State legislatures, New Hampshire, Massachusetts, Rhode Island, and Connecticut, have adopted this compact. Bills were introduced in the House of Representatives and the Senate during the 86th Congress. During subsequent hearings by the House Committee on Public Works on H.R. 9999 and H.R. 10022, objections to the Federal support and participation provisions were raised, principally by the Federal agencies. Some minor changes were made in the wording of the original bills but these changes failed to satisfy the Federal agencies. Nevertheless, on June 8, 1960, a so-called clean bill, H.R. 12467, was reported favorably (with a minority report). No further action was taken during the 2d session of the 86th Congress. An identical bill H.R. 30 was introduced by Congressman John McCormack and referred to the committee during the current session of the 87th Congress. In the Senate, S. 374 has been filed by Senator Bush and eight New England colleagues.
THE NEW ENGLAND COUNCIL'S POSITION The New England Council supports the adoption of H.R. 30 because such action would strengthen regional planning in New England, would recognize the importance of a joint Federal-State Government effort in water resource develop
ment, and would aid the efficient development of the region's interrelated water resources.
In order to permit smooth phasing of programs from the planning to the construction stage and continuous review of existing plans in the light of changing conditions, it is imperative to have active and responsible participation of not only the States, but also of those Federal agencies which are ultimately responsible for the execution of a large part of any water and related land resource development program. Bill H.R. 30 is designed to achieve close cooperation between the various governmental agencies concerned with the whole complex of water resource development and to set the stage for a smooth transition from planning to execution.
Programs developed by Federal Government agencies are now submitted to the States and often encounter opposition and changes locally. Coordination early in the planning stage should overcome delays and confusion and thereby encourage efficient execution.
Establishment of the Northeastern Water and Related Land Resources Compact will serve the economic development of the entire region's resources for the benefit of the more than 9 million people living in New England.
ADVANTAGES TO NEW ENGLAND
1. A need exists for duly authorized agency to (a) carry on functions of coordination and planning, and (b) consider regional needs as a whole, and (c) establish priorities.
2. These important tasks require formal rather than informal organization: Office staff, permanent files, funds to hold regional meetings, funds for special studies : in short, permanent machinery.
3. Establishment of project priorities would be facilitated; projects would more quickly reach the execution stage.
4. Duplication during a study and planning phase would be minimized.
5. Methods of study and planning would be standardized so as to permit an accurate comparative evaluation.
6. Financial contributions and voting participation provisions are likely to assure high level appointments to the commission by both Federal agencies as well as State governments, facilitating the transition from the adoption to the implementation of a plan of action.
7. Establishment of an authoritative body would lend support to integrated and continuous action at all levels of Government.
8. The commission would improve communication between Federal, State, and local governments as well as private groups and individuals concerned with water and related land resource development within the region.
9. A plan approved by a legally established commission with full participation of both Federal and State Governments would have a better chance of successful accomplishment.
10. The compact would permit effective regional planning in an area with many State boundaries but interrelated water resources, and would thereby insure a more economic utilization of the vast amounts of moneys spent annually by Federal and State Governments on water resource programs in New England.
11. The adoption of the compact will not only increase both the geographic and functional scope of water and related land resource planning, but more important, will contribute greatly to the overall economic development of the New England region. Experience has shown that flood control projects, in particular, invite industrial growth. Water and resource development are closely related to efficient industrial and commercial planning.
12. The commission, while not usurping any prerogatives or powers of the Federal and State Governments, will relieve present Government agencies of many presently uncoordinated and burdensome functions.
LEGAL AND POLICY MEMORANDUM IN SUPPORT OF NORTHEASTERN WATER AND RELATED
LAND RESOURCES COMPACT
Certain minority members of the House of Representatives Committee on Public Works expressed two principal objections to H.R. 9999 and H.R. 10022, the northeastern water and related land resources bills introduced during the 2d session of the 86th Congress. At page 20 of H.R. Report 1767, the minority objected to both voting participation by the Federal Government and Federal
financial contributions. Their objections are based on: (1) Constitutional considerations, and (2) policy considerations. 1. Constitutional objections to a joint Federal-State compact.
The Justice Department has suggested without elaboration that the retention of a "joint agency” provision would subject to question the constitutionality of the proposed compact. H.R. Report 1767 at 18.
Article III, section 8 of the U.S. Constitution provides that “the Congress shall have power * * * to regulate commerce among the several States * * * and to make all laws which shall be necessary and proper for carrying into execution * * * (this) power * * * " Article III, section 10 forbids any State, without the consent of Congress to "enter into any agreement or compact with another State, or with a foreign power * * *" For the most part these provisions form the foundation for any discussion of the constitutionality of the New England "joint agency" proposal.
There is clear legal authority for Congress to legislate in the field of water and related land resources development. The absolute power of Congress in the area of interstate navigable streams has long been established. Gibbons v. Ogden, 22 U.S. (9 Wheat) 1 (1824). Navigable waters "are the public property of the Nation, and subject to all requisite legislation by Congress.” Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713, 725 (1866). The power over navigable waterways is not limited to navigation, however:
"It cannot properly be said that the constitutional power of the United States over its waters is limited to control of navigation * * * Flood protection, watershed development, recovery of the costs of improvements through the utilization of power are likewise parts of commerce control * * * That authority is as broad as the needs of commerce. United States v. Appalachian Electric Power Co., 311 U.S. 377, 426 (1940)."
There has also been express recognition of constitutional authority to extend flood control measures to watersheds and tributaries under a comprehensive plan of controlling the entire basin of a stream. Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 525 (1941).
Although the commerce clause is the most significant source of power in this area, the clauses granting war powers, admiralty powers, and power to provide for common welfare and defense also have been accepted as proper bases for congressional action, for example, United States v. Gerlach Live Stock Co., 339 U.S. 725, 738 (1950); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 327-28 (1936).
Since Congress undisputably has the power to create law in this area, the only proper question remaining is: may it constitutionally establish among willing State and Federal signatories a joint agency which will have as its only purpose planning and coordinating matters in the field of water and related land resources?
“The sound construction of the Constitution must allow to the National Legislature that discretion, with respect to the means by which the powers it con ers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional. McCulloch v. Maryland. 17 U.S. (4 Wheat) 316. 421 (1819)."
There is no constitutional provision which prohibits the Federal Government from entering into compacts with one or more of the States. The compact clause requires congressional consent for interstate and foreign GovernmentState compacts which tend to affect the political balance of the Federal system of government. Virginia v. Tennessee (148 U.S. 503, 519 (1893). If protection of this balance is the main purpose of the compact clause, and if such balance is adequately secured merely by congressional consent, then a fortiori, this political balance is conclusively safeguarded where there is not only congressional consent, but actual Federal Government participation..
The U.S. Supreme Court has upheld Federal-State agreements in the nature of compacts on many occasions ; e..., Ex parte Karstendick (93 U.S. 396 (1876)) (agreement with State for the interment of Federal prisoners in State prisons) ; Seawright v. Stokes (44 U.S. (3 How.) 150, 165–66 (1845)) (Federal-multistate agreement concerning the maintenance and use of an interstate roadway); Neil Moore & Co. v. Ohio (44 U.S. (3 How.) 720 (1845)) (companion case to Seawright v. Stokes, supra). The Court has uniformly sanctioned obligatory
conditions imposed by States upon the Federal Government in certain land cession agreements regarded as contractual in nature.
"The States of the Union and the National Government may make mutually satisfactory arrangements as to jurisdiction of territory within their borders and thus in a most effective way, cooperatively adjust problems flowing from our dual system of Government. Jurisdiction obtained by consent or cession may be qualified by agreement or through offer and acceptance or ratification * * *
These arrangements the courts will recognize and respect. Collins v. Yosemite Park & Curry Co. (304 U.S. 518, 528 (1937)); accord, James v. Dravo Contracting Co. (302 U.S. 134 (1937))."
In Fort Leavenworth R.R. v. Lowe (114 U.S. 525, 541 (1885)), the Court upheld contractual conditions imposed by Kansas upon the Federal Government in connection with the cession by the State of lands for the erection of Fort Leavenworth. The Court noted :
“Though the jurisdiction and authority of the General Government are essentially different from those of the State, they are not those of a different country; and the two, the State and General Government, may deal with each other in any way they may deem best to carry out the purposes of the Constitution.”
Noting that a constitutional question "possibly" existed, the minority members of the House Public Works Committee postulated :
"A State cannot bargain away its reserved powers to the National Government, nor can the United States surrender its delegated powers to State control. Similarly, it would seem equally true that neither the States nor the United States can bargain away their respective types of power to a new kind of Federal-State creature." (H. Rept. No. 1767 at 22.)
The signatories to the proposed Northeastern Water and Related Land Resources Compact will bargain away nothing. The Commission to be established has no authority to construct, approve, or authorize projects on behalf of the Federal Government or the States. Its sole function is to plan, coordinate, and recommend changes in law or policy-basically the same as that of its predecessor organizations, the New England-New York Interagency Committee and the Northeastern Resources Committee. The proposed bill seeks only to formalize and make permanent the heretofore loose arrangement which possessed no stable financing methods, no real permanency and no actual authority to implement even its modest purposes.
However, even if it is conceded, which we do not. that the Federal Government is “bargaining” away some administrative and regulatory duties, the constitutional precedent for it to do so is conclusively illustrated by the numerous acts creating new agencies which not only plan and coordinate, but regulate and administer as well. There would seem to be no constitutional limitations on Congress in appointing an agency to carry out the law in an area in which the Federal Government may clearly act. (McCulloch v. Maryland, supra, p. 9.) Since the bill sets forth policy and standards to guide the proposed Commission, it does not exceed the "limits of delegation which there is no constitutional authority to transcend." (Panama Refining Co. v. Ryan, 293 U.S. 388, 430 (1935).) Clearly State authorities may and frequently do administer Federal law as has been demonstrated in Ex parte Karstendick (93 U.S. 396 (1876), supra, p. 10); United States v. Hoffman (13 F. 2d 269 (D.C. 111, 1925), aff'd, 13 F. 2d 278 (7th Cir. 1926)); (18 U.S.C. S 4002 (1958)). See also the Social Security Act (42 U.S.C. & 301, et seq. (1958)); Carmichael v. Southern Coal & Coke Co. (301 U.S. 495 (1937)) ; Clark, “The Rise of a New Federalism" (82-108 (1938)).
The Federal Government is in no way irrevocably bound to the proposed compact. Article XII, section 7, states specifically that “the right to alter, amend, or repeal this act is expressly reserved, and no change proposed to be made in the compact approved by the act shall become effective until it shall have been approved by Congress.” [Emphasis added.] When Congress gives its consent to a compact concerning navigation and the regulation of commerce, there is no restriction upon congressional power to enact inconsistent legislation,
“The question here is, whether or not the compact can operate as a restriction upon the power of Congress under the Constitution to regulate commerce among the several States. Clearly not. Otherwise Congress and two States would possess the power to modify and alter the Constitution itself." (Pennsylvania v. Wheeling & Belmont Bridge Co. (59 U.S. (18 How.) 421, 433 (1856)).
Thus it is clear that the Northeastern Water and Related Land Resources Compact constitutes no cession of power by the Federal Government to the States.
It is most difficult to conceive what "reserved powers" the States would "bargain away” to the Federal Government under the proposed bill. The States