(4) The Great Lakes Basin compact, within its role as consultative and advisory agent on water resources matters of the Great Lakes, has purposes encompassing a broad scope.

(a) To promote the orderly, integrated, and comprehensive development, use, and conservation of the water resources of the Great Lakes Basin.

(b) To plan for the welfare and development of the water resources of the basin as a whole as well as for those portions of the basin which may have problems of special concern.

(c) To make it possible for the States of the basin and their people to derive the maximum benefit from utilization of public works, in the form of navigational aids or otherwise, which may exist or which may be constructed from time to time.

(d) To advise in securing and maintaining a proper balance among industrial, commercial, agricultural, water supply, residential, recreational, and other legitimate uses of the water resources of the basin.

(e) To establish and maintain an intergovernmental agency to the end that the purposes of this compact may be accomplished more effectively.

(5) The Congress and the Nation as a whole have historically favored the establishment and functioning of interstate compacts to assist in meeting the needs and solving the problems of interstate matters. Ours is an interstate compact designed for meeting our interstate water resources needs. We believe we should have the consent of Congress for our compact. The Constitution of the United States, article I, section 10, clause 3, provides that interstate compacts shall have the consent of Congress.

(6) The then Deputy Attorney General of the United States, Mr. Katzenbach, until just recently the Attorney General, in a letter to Senator Clinton Anderson dated May 1962, states "*** Hence, in my opinion, it (the Great Lakes Basin Compact) requires congressional consent under the compact clause ** ̄*” I have a copy of that letter and request that it be included in the record of this hearing. Chairman MORGAN. Without objection, it will be included at this point, sir.

(The letter referred to follows:)

Hon. CLINTON P. ANDERSON,

DEPARTMENT OF JUSTICE,
OFFICE OF THE DEPUTY ATTORNEY GENERAL,
Washington, D.C.

Chairman, Committee on Interior and Insular Affairs,
U.S. Senate, Washington, D.C.

DEAR SENATOR ANDERSON: This is in further response to your letter of March 5 with reference to the testimony on March 2, 1962, before the Senate Interior and Insular Affairs Committee, of Marvin Fast, Executive Director of the Great Lakes Basin Compact Commission. By your letter, you transmitted a copy of the transcript of the March 2 hearing and called attention to the opinion stated therein by Mr. Fast and Dr. Wendell that under the doctrine of Virginia v. Tennessee, 148 U.S. 503, a compact such as the Great Lakes Basin Compact would not necessarily require congressional approval. You asked to be advised whether the Virginia v. Tennessee doctrine is as broad as contended and whether congressional approval of a compact is necessary before the compact becomes operative. The question whether congressional consent is necessary or appropriate to an interstate compact is initially a question for the Congress. However, in the event

the participating states should put a compact into effect without congressional approval, such action may be open to challenge in the courts, and the failure to obtain consent could, in some cases, ultimately prove costly to the states and the national government alike. In this connection, I note that legislation to approve the Great Lakes Basin Compact is now pending, see S. 1748, 87th Cong., 1st Sess. The questions which you ask do not arise within the Executive Branch of the government and hence are not an appropriate subject for an opinion of the Attorney General. The following informal comments may, however, be helpful to you in your further consideration of those questions.

Article I, sec. 10, cl. 3 of the Constitution provides that "no state shall, without the consent of Congress *** enter into any Agreement or Compact with another state The phrasing of the Article is unequivocal; congressional consent is required for "any Agreement or Compact" (emphasis added), and the cases so indicate. See e.g., Green v. Biddle, 8 Wheat. 1 (1823), and Holmes v. Jennison, 14 Pet. 540 (1840). However, the consent of Congress may be given subsequent to the entering into of the compact and may be implied. Virginia v. Tennessee, 148 U.S. 503, 521 (1893).

No doubt there are many forms of cooperation between states which do not rise to the dignity of a compact or agreement within the meaning of Article I, sec. 10, cl. 3. Familiar examples include: mutual assistance in dealing with damage from a natural disaster; arrangements for exchange of tax or other governmental information (see e.g., Dixie Wholesale Grocery Inc. v. Martin, 278 Ky. 705, 129 S.W. 2d 181 (1930), cert. den., 308 U.S. 609 (1939); and certain arrangements for joint consultation such as the Council of State Governments and the periodic conferences of state governors, attorneys general, insurance commissioners, etc. The few judicial decisions under the compact clause do not indicate a clear line of demarcation between such informal working arrangements and those agreements which come within the compact clause of the Constitution, and hence require the consent of Congress. And the practice of the states and Congress has not been wholly consistent. See examples appended to Frankfurter and Landis, The Compact Clause, a Study in Interstate Adjustments, 34 Yale L. J. 685 (1925), and the inore recent example of the Southern Regional Educational Compact, discussed in Dunbar, Interstate Compacts and Congressional Consent, 36 Va. L. Rev. 753 (1950).

In Virginia v. Tennessee, 148 U.S. 503, 519 (1893), the Supreme Court suggested that the requirement of congressional consent may be applicable only to "the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States." See also Stearns v. Minnesota, 179 U.S. 223, 224 (1900). The quoted statement was made in connection with a holding that a mere agreement to appoint commissioners to run a boundary line, not involving any commitment to adopt the line so run, did not require congressional consent. (See 148 U.S. at 517-521). The Court went on to hold that the further agreement mutually to accept the boundary line did require congressional consent (p. 521) and that such consent could be implied from the "subsequent legislation and proceedings of Congress." (p. 522). Alternatively, the Court held the boundary established by prescription, having been acquiesced in by both states for some 90 years. (pp. 522-4).

Accordingly, the holding in Virginia v. Tennessee stands merely for the proposition that congressional consent to interstate compacts may be implied instead of expressed and may be given after the compact is agreed to by the states concerned. The court's dictum, quoted above, was in connection with its conclusions that the consent of Congress need not have been given at the time of preliminary arrangements for the appointment of a commission to make a survey but could effectively be given at a later time.

The testimony before your committee of Mr. Fast and Dr. Wendell relies heavily on this dictum, and essentially reiterates the reference, in Zimmerman and Wendell, The Interstate Compact since 1925, p. 34, to a "line of decisions" adopting "the political balance doctrine." The authors further comment that "Political balance is identifiable more readily as a principle than as a formula easy to apply in specific cases." Ibid. As evidence of this "line of decisions" and this "doctrine" there are cited the dictum, above referred to, in Virginia v. Tennessee and two state cases upholding reciprocal agreements, without congressional consent, to exchange tax information. We are not aware of any decision of a federal court holding valid an interstate compact to which Congress

had not given previous or subsequent consent. I do not believe the dictum in Virginia v. Tennessee, uttered in a very limited context, can be said to have established the so-called "political balance doctrine" relied on in the testimony referred to in your letter.

In a passage quoted in Virginia v. Tennessee, supra, Story states that the purpose of the requirement of congressional consent of interstate compacts and agreements is "to check any infringement of the rights of the national government." (Story, Commentaries on the Constitution, sec. 1403). It seems clear that Congress, and not the state involved, must be the judge of whether a proposed compact would infringe the rights of the national government-i.e. whether entering into and carrying out the compact would be inconsistent with any legislative action taken or to be taken by Congress, or with any interest of the nation. Thus in a recent case the Supreme Court quoted with approval the following passage from Frankfurter and Landis, op. cit. suprs. 34 Yale L. J. at 694-5: "But the Constitution plainly had two very practical objectives in view in conditioning agreement by States upon consent of Congress. For only Congress is the appropriate organ for determining what arrangements between States might fall within the prohibited class of Treaty, Alliance, or Confederation', and what arrangements come within the permissive 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." Petty v. Tennessee-Missouri Commission, 359 U.S. 275, 282n.

And the District Court for the District of Columbia has stated that "the duty of Congress to protect substantive federal interests such as interstate commerce and national defense in its actions under the compact clause is a clear one." United States v. Tobin, 195 F. Supp. 588, 606 (1961).

The question whether the Great Lakes Compact requires congressional consent was discussed in the Committee reports on legislation (S. 1416) to approve the compact which was passed by the Senate at the 85th Congress. The Senate Committee stated: "The Committee believes that this is a compact to which (Congressional) consent should be given." S. Rept. 1888, 85th Cong. 2d Sess., p. 6. The House Committee, after setting forth arguments pro and con, stated: "It seems clear that it would be more prudent to secure congressional consent rather than to forego consent and thereby throw doubt on the validity of the compact and on the Commission's activities." H. Rept. 2587, 85th Cong., 2d Sess., p. 5.

The Great Lakes Basin Compact (the text of which is set out in S. 1746) is a highly formal agreement, open to membership by eight states and two provinces of Canada. (Art. II). Its purposes include "to promote the orderly, integrated, and comprehensive development, use and conservation of the water resources of the Great Lakes Basin." (Art. I). The Great Lakes are a major navigable waterway; actions with respect to them are also matters of international concern, and various aspects of the Great Lakes have been the subject of international agreements with Canada. See e.g., the Treaty Relating to Boundary. Waters, etc. of January 11, 1909, TS No. 548 and the Convention on Great Lakes Fisheries of September 10, 1954, TIAS 3326. While the powers of the Commission appear to be primarily to collect and report on data and to make recommendations which the members agree merely to "consider" (Arts. VI and VII), the formulation of such comprehensive recommendations is itself an important function which may significantly influence the legislative action of the member states and thus shape the future development of the Great Lakes Basin. This appears to be recognized in the Compact itself by the formality of its provisions with respect to voting (Art. IV, B-E). Moreover, serious question with respect to the proper conduct of international relations may be presented by the proposed establishment of an agency representing certain states and Canadian provinces to formulate recommendations on matters which may be regarded as a more appropriate subject for diplomatic negotiations conducted by the national governments of the two nations involved.

Such an agreement, which could result in actions of great importance relating to a major navigable waterway over which Congress has broad legislative powers, and which may affect both the substance of and the proper channels for conduct

ing our international relations with Canada, potentially affects, "substantive federal interests." Hence, in my opinion, it requires Congressional consent under the compact clause. Since, under Virginia v. Tennessee, supra, Congressional consent may be given subsequent to the entering into of a compact, it may be that certain preliminary organizational steps could properly be taken prior to action by Congress on consent legislation. I express no opinion with respect to the lawfulness of any particular action that may have been taken to date under the Compact.

Sincerely,

Mr. WHITCOMB. Thank you.

NICHOLAS DEB. KATZENBACH,
Deputy Attorney General.

(7) The operations of the compact and the Commission do not infringe on the responsibilities or functions of other established organizations or entities, nor on those which are known to be under consideration.

(8) The compact is in conformance with present U.S. Government policy which encourages various States to undertake studies and activities which they themselves can perform, and facilitates the cooperative efforts of the States and the Federal Government in solving the various water resource problems of the Great Lakes area.

(9) Under the provisions of Public Law 89-80, the Water Resources Planning Act, the Commission plans to be represented on the proposed River Basin Planning Commission.

(10) The Governors of the eight Great Lakes States have, with full knowledge of current conditions, plans, and further organizational and legislative considerations, voiced their approval of the work of the Great Lakes Commission and indicated that that work should continue. We have recently received letters from many of the Governors of the Great Lakes States which state that they support the legislation now before this committee which would grant the consent of Congress to the Great Lakes Basin compact, and I might add here that the Governor of Illinois has provided such a letter. I would like to submit a copy of each of these letters for incorporation in the record. (See pp. 19-23, 29-30.)

(11) The legislation before you has been developed by and with the Members of the House and Senate (of the United States) who have introduced or who have sponsored the bills. The bills have been drafted with the informal assistance of the Department of State and have been the subject of discussion several times among members of the Departments of Justice, Interior, Army, State, the Bureau of the Budget, and the Great Lakes Commission.

(12) The Commission has over the past decade performed its work well and has been the leader and forerunner in many of the accomplishments to date and in many of the activities now underway to improve the well-being of the whole region and, even more importantly, the Nation. Attached to this statement is a copy of a brochure which describes our organization and provides information on our purposes, functions, accomplishments, and membership which I submit for incorporation in the record of this hearing. (See p. 23.)

Mr. Chairman, the bill before you is in itself very brief and to the point, with most of its length devoted to a recitation of the articles of the Great Lakes Basin compact. Section 2 protects the jurisdiction, powers, and prerogatives of our Federal agencies in matters of international affairs. Section 3 protects and provides for existing

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relationships and working arrangements of the participating States with each other and with the Canadian Provinces.

The Great Lakes States of Illinois, Indiana, Michigan, Minnesota, Ohio, Pennsylvania, and Wisconsin request your favorable action on this bill.

It is an extreme pleasure to have had the opportunity to appear before your committee today. Thank you.

Chairman MORGAN. Thank you, Mr. Whitcomb.

Mr. Olds, you have a prepared statement and you may proceed. STATEMENT OF NICHOLAS V. OLDS, ASSISTANT ATTORNEY GENERAL, APPEARING ON BEHALF OF ATTORNEY GENERAL FRANK J. KELLEY OF THE STATE OF MICHIGAN

Mr. OLDS. I am Nicholas V. Olds, assistant attorney general, and I am appearing before this committee today on behalf of Attorney General Frank J. Kelley of the State of Michigan in support of H.R. 937 and companion bills giving the consent of Congress to the Great Lakes Basin compact. In the statute ratifying the Great Lakes Basin compact, the attorney general is made an ex officio member of Michigan's delegation to the Great Lakes Commission. Attorney General Kelley has served as chairman of Michigan's delegation since his assumption of the office and presently is also the chairman of the special committee to secure the consent of Congress to this compact.

For the past 10 years the Great Lakes Commission, an organization of all of the States bordering the Great Lakes, has exerted its fullest efforts to assist them in resolving the many problems growing out of a common and interrelated interest in the largest body of fresh water in the world, the Great Lakes.

Why have the eight Great Lakes States formed this organization? Obviously no one State acting individually can or should make decisions or take action concerning the uses of this common resource of water since single action may affect the legitimate interest of the other seven States.

In the case of my State, Michigan, we all know that it is wholly and totally within the basin, consisting of a land and water area of more than 90,000 square miles, and having a shoreline of approximately 3,000 miles. Its industry and the welfare of its people are closely related and influenced by the use of the Great Lakes. Consequently, it is understandable that Michigan, fronting on four of the five Great Lakes and almost totally surrounded by them, should have a vital interest and abiding concern with what is done by the other six States also having an interest in these waters.

What was the practice among the Great Lakes States before the formation of the Great Lakes Commission in 1955?

If we review a little history, we will find that on the premise that "everybody's business was nobody's business," no thought was given to the problems of the Great Lakes until a crisis occurred. Then there was a great flurry of activity. Governors would appoint ad hoc committees, delegates were sent scurrying around from one State to another not only by State officials, but by groups of aroused citizens. One of these crises occurred in 1952 during the extreme high water period when considerable damage was done to property along the shores.