BRIEF ON LAW OF INTERSTATE COMPACTS. POWERS OF STATES TO ENTER INTO COMPACTS. Compacts or agreements between the states are recognized by article I, section 10, paragraph 3, of the constitution of the United States, which provides: "No state shall, without consent of congress, enter into any agreement or compact with another state. . Interstate controversies and differences respecting boundaries, fisheries, etc., have been frequently settled by interstate compact. Among the many boundary disputes so settled may be mentioned the following: Virginia and Pennsylvania, 1780 (11 Pet. 20); Virginia and Pennsylvania, 1784 (3 Dall. 425); Kentucky and Tennessee, 1820 (11 Pet. 207); Virginia and Tennessee, 1802 and 1856 (148 U. S. 503, 511, 516); Virginia and Maryland, 1785 (153 U. S. 155, 162). Of the compacts between states respecting the taking of fish in rivers forming the boundary between the two disputant states may be mentioned: Washington and Oregon, Columbia river; Maryland and Virginia, Potomac river. (153 U. S. 155.) New York and New Jersey by interstate compact have established their port authority and have settled all differences between them respecting New York harbor. Pennsylvania, New York and New Jersey have settled the Delaware river controversy by compact. The compact between Colorado and Nebraska respecting the equitable distribution of the waters of the South Platte river has been approved by congress and likewise the compact between Colorado and New Mexico respecting the La Plata river. The Columbia river states are negotiating a compact under authority of congress. The seven Colorado river states concluded a compact at Santa Fe in 1922. Colorado, Nebraska, and Wyoming are about to conclude a compact respecting the North Platte river. Wyoming and South Dakota are authorized by congress to conclude a compact respecting the Belle Fouche, and the interstate treaty method of settling disputes and providing for the future use and disposition of the waters of interstate rivers has become an established national and interstate policy. While all compacts which would in any way involve the federal government or its jurisdiction, property, etc., must be made with consent or approval of congress in order to be binding, it has been suggested by the supreme court that compacts made between two states respecting matters in which the states alone are interested might be taken as binding without consent or approval by congress. (Stearns v. Minnesota, 179 U. S. 223, 245; Virginia v. Tennessee, 148 U. S. 503; Wharton v. Wise, 153 U. S. 155.) For a full discussion respecting the rights of the states to enter into treaties or compacts, with consent of congress, see Rhode Island v. Massachusetts, 12 Pet. 657, 725-731. In the case just cited the supreme court observed that when congress has given its consent to two states to enter into a compact or agreement, "then the states were in this respect restored to their original inherent sovereignty; such consent, being the sole limitation imposed by the constitution, when given left the states as they were before, as held by this court in Poole v. Fleeger, 11 Pet. 209, whereby their compacts became of binding force, and finally settled the boundary between them, operating with the same effect as a treaty between sovereign powers. That is, that the boundaries so established and fixed by compact between nations, become conclusive upon all the subjects and citizens thereof, and bind their rights, and are to be treated to all intents and purposes, as the true real boundaries. The construction of such a compact is a judicial question," for the United States supreme court. (12 Pet. 725.) See, also, discussion of the same subject in Stearns v. Minnesota, 179 U. S. 223; Virginia v. Tennessee, 148 U. S. 503, 517, 528; Wharton v. Wise, 153 U. S. 155. In other words, the states of the Union, by consent of congress, have the same power to enter into compacts with each other as do independent nations, upon all matters not delegated to the federal government. INTERSTATE COMPACTS RESPECTING USE OF WATERS OF INTERSTATE RIVERS. While, as we have already observed, varicus of the states have settled their controversies respecting boundaries, fisheries, etc., by interstate compact or by concurrent state legislation having the same effect, this method of settlement of pending or threatened controversies respecting the use and distribution of the waters of interstate streams for irrigation and other beneficial purposes has not been availed of. The rights of adjoining states to the use and benefit of the waters of the streams common to both states has been considered by the court in the case of Kansas v. Colorado, 185 U. S. 125; 206 U. S. 46, in which case it was held that the respective states were each entitled to an equitable portion of the waters of the common river, the extent of the use in each state to be determined upon the facts and circumstances of each particular case. In the above-mentioned case the right of the United States to the use of the waters of the Western streams was also considered and determined (pp. 87-93). An equitable apportionment or allocation of the use and distribution of the waters of Western interstate streams may be best accomplished through the efforts of the states represented by commissioners fully acquainted with the facts and the surrounding conditions, as well as with the future possibilities of use of water from the streams. Principles of international law are applicable to the use and distribution of waters of interstate streams, and as regards compacts between the states, "the rule of decision is not to be collected from the decisions of either state, but is one, if we may so speak, of an international character." (Marlett v. Silk, 11 Pet. 1, 23.) The rights of the nation in whose territory an international stream has its rise to the use and benefit of its waters for the development of its territory, irrespective of the effect upon the territory of a lower nation through which the stream passes on its way to the sea, were fully considered by Attorneygeneral Judson Harmon, with respect to the claims made by the Republic of Mexico to damage by depletion of the waters of the Rio Grande, occasioned by uses in the United States. After exhaustive consideration of the various authorities upon the subject, he arrived at the conclusion that, while the United States had the right to utilize the entire flow of the Rio Grande in the necessary reclamation of the lands near the source of the stream, and while "precedents of international law imposed no liability or obligation upon the United States" to permit any of the water of the stream to flow to El Paso, nevertheless, he advised that the matter be treated as one of policy and settled by treaty with Mexico. (21 Ops. Atty.-gen., 274, 280-283.) It is safe to predict that most of the past controversies respecting the waters of Western interstate streams could have been avoided had the matters in dispute been first submitted to competent compact commissioners. Friction between the federal departments and the state authorities should be avoided by proper compacts between the states before construction proceeds upon rivers where such controversies may arise. In fact, settlement of possible interstate controversies by interstate compacts is recommended by the United States supreme court. (Washington v. Oregon, 214 U. S. 205, 218.) CHAPTER III. STREAM-FLOW MEASUREMENTS. The department has maintained the same gaging stations operated during the water year ending September 30, 1924. These consist of three stations on the Arkansas river, one on the Pawnee river, and five on the five principal irrigation canals taking water from the Arkansas river. The stations on the Arkansas river are located at Syracuse, Garden City and Larned. The station on the Pawnee river is also at Larned. These stations are all equipped with automatic recorders which make continuous records of the gage heights of the water passing the gages. The gages on the Arkansas at Garden City and Larned, together with the one on the Pawnee river, were installed by the irrigation commissioner and the United States Geological Survey in coöperation with the Kansas Water Commission. The irrigation commissioner furnished the well and shelter, while the United States Geological Survey and the Kansas Water Commission furnished the recording instruments for the gages at Garden City and Larned, and the entire installation on the Arkansas river at Larned. Gages at the coöperative stations are being maintained by the Division of Irrigation, and discharge measurements, for the most part, are made by this department. |