[House Report 105-369]
[From the U.S. Government Publishing Office]



105th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                    105-369
_______________________________________________________________________


 
         APALACHICOLA-CHATTAHOOCHEE-FLINT RIVER BASIN COMPACT

                               _________


  October 31, 1997.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

 Mr. Hyde, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                      [To accompany H.J. Res. 91]

    The Committee on the Judiciary, to whom was referred the 
joint resolution (H.J. Res. 91) granting the consent of 
Congress to the Apalachicola-Chattahoochee-Flint River Basin 
Compact, having considered the same, report favorably thereon 
with an amendment and recommend that the joint resolution as 
amended do pass.

                           TABLE OF CONTENTS

                                                                   Page
The Amendment....................................................     1
Purpose and Summary..............................................    10
Background and Need for Legislation..............................    11
Hearings.........................................................    12
Committee Consideration..........................................    12
Vote of the Committee............................................    12
Committee Oversight Findings.....................................    12
Committee on Government Reform and Oversight Findings............    12
New Budget Authority and Tax Expenditure.........................    12
Committee Cost Estimate..........................................    12
Constitutional Authority Statement...............................    13
Section-by-Section Analysis and Discussion.......................    13
Agency Views.....................................................    16

    The amendment is as follows:
    Strike out all after the resolving clause and insert in 
lieu thereof the following:

SECTION 1. CONGRESSIONAL CONSENT.

    The Congress consents to the Apalachicola-Chattahoochee-Flint River 
Basin Compact entered into by the States of Alabama, Florida, and 
Georgia. The Compact is substantially as follows:

         ``Apalachicola-Chattahoochee-Flint River Basin Compact

  ``The States of Alabama, Florida and Georgia and the United States of 
America hereby agree to the following compact which shall become 
effective upon enactment of concurrent legislation by each respective 
state legislature and the Congress of the United States.

                             ``SHORT TITLE

  ``This Act shall be known and may be cited as the `Apalachicola-
Chattahoochee-Flint River Basin Compact' and shall be referred to 
hereafter in this document as the `ACF Compact' or `Compact'.

                              ``ARTICLE I

                           ``COMPACT PURPOSES

  ``This Compact among the States of Alabama, Florida and Georgia and 
the United States of America has been entered into for the purposes of 
promoting interstate comity, removing causes of present and future 
controversies, equitably apportioning the surface waters of the ACF, 
engaging in water planning, and developing and sharing common data 
bases.

                              ``ARTICLE II

                         ``SCOPE OF THE COMPACT

  ``This Compact shall extend to all of the waters arising within the 
drainage basin of the ACF in the states of Alabama, Florida and 
Georgia.

                             ``ARTICLE III

                               ``PARTIES

  ``The parties to this Compact are the states of Alabama, Florida and 
Georgia and the United States of America.

                              ``ARTICLE IV

                             ``DEFINITIONS

  ``For the purposes of this Compact, the following words, phrases and 
terms shall have the following meanings:
  ``(a) `ACF Basin' or `ACF' means the area of natural drainage into 
the Apalachicola River and its tributaries, the Chattahoochee River and 
its tributaries, and the Flint River and its tributaries. Any reference 
to the rivers within this Compact will be designated using the letters 
`ACF' and when so referenced will mean each of these three rivers and 
each of the tributaries to each such river.
  ``(b) `Allocation formula' means the methodology, in whatever form, 
by which the ACF Basin Commission determines an equitable apportionment 
of surface waters within the ACF Basin among the three states. Such 
formula may be represented by a table, chart, mathematical calculation 
or any other expression of the Commission's apportionment of waters 
pursuant to this compact.
  ``(c) `Commission' or `ACF Basin Commission' means the Apalachicola-
Chattahoochee-Flint River Basin Commission created and established 
pursuant to this Compact.
  ``(d) `Ground waters' means waters within a saturated zone or stratum 
beneath the surface of land, whether or not flowing through known and 
definite channels.
  ``(e) `Person' means any individual, firm, association, organization, 
partnership, business, trust, corporation, public corporation, company, 
the United States of America, any state, and all political 
subdivisions, regions, districts, municipalities, and public agencies 
thereof.
  ``(f) `Surface waters' means waters upon the surface of the earth, 
whether contained in bounds created naturally or artificially or 
diffused. Water from natural springs shall be considered `surface 
waters' when it exits from the spring onto the surface of the earth.
  ``(g) `United States' means the executive branch of the government of 
the United States of America, and any department, agency, bureau or 
division thereof.
  ``(h) `Water Resource Facility' means any facility or project 
constructed for the impoundment, diversion, retention, control or 
regulation of waters within the ACF Basin for any purpose.
  ``(i) `Water resources,' or `waters' means all surface waters and 
ground waters contained or otherwise originating within the ACF Basin.

                              ``ARTICLE V

        ``CONDITIONS PRECEDENT TO LEGAL VIABILITY OF THE COMPACT

  ``This Compact shall not be binding on any party until it has been 
enacted into law by the legislatures of the states of Alabama, Florida 
and Georgia and by the Congress of the United States of America.

                              ``ARTICLE VI

                     ``ACF BASIN COMMISSION CREATED

  ``(a) There is hereby created an interstate administrative agency to 
be known as the `ACF Basin Commission.' The Commission shall be 
comprised of one member representing the state of Alabama, one member 
representing the state of Florida, one member representing the state of 
Georgia, and one non-voting member representing the United States of 
America. The state members shall be known as `State Commissioners' and 
the federal member shall be known as `Federal Commissioner.' The ACF 
Basin Commission is a body politic and corporate, with succession for 
the duration of this Compact.
  ``(b) The Governor of each of the states shall serve as the State 
Commissioner for his or her state. Each State Commissioner shall 
appoint one or more alternate members and one of such alternates as 
designated by the State Commissioner shall serve in the State 
Commissioner's place and carry out the functions of the State 
Commissioner, including voting on Commission matters, in the event the 
State Commissioner is unable to attend a meeting of the Commission. The 
alternate members from each state shall be knowledgeable in the field 
of water resources management. Unless otherwise provided by law of the 
state for which an alternate State Commissioner is appointed, each 
alternate State Commissioner shall serve at the pleasure of the State 
Commissioner. In the event of a vacancy in the office of an alternate, 
it shall be filled in the same manner as an original appointment.
  ``(c) The President of the United States of America shall appoint the 
Federal Commissioner who shall serve as the representative of all 
federal agencies with an interest in the ACF. The President shall also 
appoint an alternate Federal Commissioner to attend and participate in 
the meetings of the Commission in the event the Federal Commissioner is 
unable to attend meetings. When at meetings, the alternate Federal 
Commissioner shall possess all of the powers of the Federal 
Commissioner. The Federal Commissioner and alternate appointed by the 
President shall serve until they resign or their replacements are 
appointed.
  ``(d) Each state shall have one vote on the ACF Basin Commission and 
the Commission shall make all decisions and exercise all powers by 
unanimous vote of the three State Commissioners. The Federal 
Commissioner shall not have a vote, but shall attend and participate in 
all meetings of the ACF Basin Commission to the same extent as the 
State Commissioners.
  ``(e) The ACF Basin Commission shall meet at least once a year at a 
date set at its initial meeting. Such initial meeting shall take place 
within ninety days of the ratification of the Compact by the Congress 
of the United States and shall be called by the chairman of the 
Commission. Special meetings of the Commission may be called at the 
discretion of the chairman of the Commission and shall be called by the 
chairman of the Commission upon written request of any member of the 
Commission. All members shall be notified of the time and place 
designated for any regular or special meeting at least five days prior 
to such meeting in one of the following ways: by written notice mailed 
to the last mailing address given to the Commission by each member, by 
facsimile, telegram or by telephone. The Chairmanship of the Commission 
shall rotate annually among the voting members of the Commission on an 
alphabetical basis, with the first chairman to be the State 
Commissioner representing the State of Alabama.
  ``(f) All meetings of the Commission shall be open to the public.
  ``(g) The ACF Basin Commission, so long as the exercise of power is 
consistent with this Compact, shall have the following general powers:
  ``(1) to adopt bylaws and procedures governing its conduct;
  ``(2) to sue and be sued in any court of competent jurisdiction;
  ``(3) to retain and discharge professional, technical, clerical and 
other staff and such consultants as are necessary to accomplish the 
purposes of this Compact;
  ``(4) to receive funds from any lawful source and expend funds for 
any lawful purpose;
  ``(5) to enter into agreements or contracts, where appropriate, in 
order to accomplish the purposes of this Compact;
  ``(6) to create committees and delegate responsibilities;
  ``(7) to plan, coordinate, monitor, and make recommendations for the 
water resources of the ACF Basin for the purposes of, but not limited 
to, minimizing adverse impacts of floods and droughts and improving 
water quality, water supply, and conservation as may be deemed 
necessary by the Commission;
  ``(8) to participate with other governmental and non-governmental 
entities in carrying out the purposes of this Compact;
  ``(9) to conduct studies, to generate information regarding the water 
resources of the ACF Basin, and to share this information among the 
Commission members and with others;
  ``(10) to cooperate with appropriate state, federal, and local 
agencies or any other person in the development, ownership, 
sponsorship, and operation of water resource facilities in the ACF 
Basin; provided, however, that the Commission shall not own or operate 
a federally-owned water resource facility unless authorized by the 
United States Congress;
  ``(11) to acquire, receive, hold and convey such personal and real 
property as may be necessary for the performance of its duties under 
the Compact; provided, however, that nothing in this Compact shall be 
construed as granting the ACF Basin Commission authority to issue bonds 
or to exercise any right of eminent domain or power of condemnation;
  ``(12) to establish and modify an allocation formula for apportioning 
the surface waters of the ACF Basin among the states of Alabama, 
Florida and Georgia; and
  ``(13) to perform all functions required of it by this Compact and to 
do all things necessary, proper or convenient in the performance of its 
duties hereunder, either independently or in cooperation with any state 
or the United States.

                             ``ARTICLE VII

                       ``EQUITABLE APPORTIONMENT

  ``(a) It is the intent of the parties to this Compact to develop an 
allocation formula for equitably apportioning the surface waters of the 
ACF Basin among the states while protecting the water quality, ecology 
and biodiversity of the ACF, as provided in the Clean Water Act, 33 
U.S.C. Sections 1251 et seq., the Endangered Species Act, 16 U.S.C. 
Sections 1532 et seq., the National Environmental Policy Act, 42 U.S.C. 
Sections 4321 et seq., the Rivers and Harbors Act of 1899, 33 U.S.C. 
Sections 401 et seq., and other applicable federal laws. For this 
purpose, all members of the ACF Basin Commission, including the Federal 
Commissioner, shall have full rights to notice of and participation in 
all meetings of the ACF Basin Commission and technical committees in 
which the basis and terms and conditions of the allocation formula are 
to be discussed or negotiated. When an allocation formula is 
unanimously approved by the State Commissioners, there shall be an 
agreement among the states regarding an allocation formula. The 
allocation formula thus agreed upon shall become effective and binding 
upon the parties to this Compact upon receipt by the Commission of a 
letter of concurrence with said formula from the Federal Commissioner. 
If, however, the Federal Commissioner fails to submit a letter of 
concurrence to the Commission within two hundred ten (210) days after 
the allocation formula is agreed upon by the State Commissioners, the 
Federal Commissioner shall within forty-five (45) days thereafter 
submit to the ACF Basin Commission a letter of nonconcurrence with the 
allocation formula setting forth therein specifically and in detail the 
reasons for nonconcurrence; provided, however, the reasons for 
nonconcurrence as contained in the letter of nonconcurrence shall be 
based solely upon federal law. The allocation formula shall also become 
effective and binding upon the parties to this Compact if the Federal 
Commissioner fails to submit to the ACF Basin Commission a letter of 
nonconcurrence in accordance with this Article. Once adopted pursuant 
to this Article, the allocation formula may only be modified by 
unanimous decision of the State Commissioners and the concurrence by 
the Federal Commissioner in accordance with the procedures set forth in 
this Article.
  ``(b) The parties to this Compact recognize that the United States 
operates certain projects within the ACF Basin that may influence the 
water resources within the ACF Basin. The parties to this Compact 
further acknowledge and recognize that various agencies of the United 
States have responsibilities for administering certain federal laws and 
exercising certain federal powers that may influence the water 
resources within the ACF Basin. It is the intent of the parties to this 
Compact, including the United States, to achieve compliance with the 
allocation formula adopted in accordance with this Article. 
Accordingly, once an allocation formula is adopted, each and every 
officer, agency, and instrumentality of the United States shall have an 
obligation and duty, to the maximum extent practicable, to exercise 
their powers, authority, and discretion in a manner consistent with the 
allocation formula so long as the exercise of such powers, authority, 
and discretion is not in conflict with federal law.
  ``(c) Between the effective date of this Compact and the approval of 
the allocation formula under this Article, the signatories to this 
Compact agree that any person who is withdrawing, diverting, or 
consuming water resources of the ACF Basin as of the effective date of 
this Compact, may continue to withdraw, divert or consume such water 
resources in accordance with the laws of the state where such person 
resides or does business and in accordance with applicable federal 
laws. The parties to this Compact further agree that any such person 
may increase the amount of water resources withdrawn, diverted or 
consumed to satisfy reasonable increases in the demand of such person 
for water between the effective date of this Compact and the date on 
which an allocation formula is approved by the ACF Basin Commission as 
permitted by applicable law. Each of the state parties to this Compact 
further agree to provide written notice to each of the other parties to 
this Compact in the event any person increases the withdrawal, 
diversion or consumption of such water resources by more than 10 
million gallons per day on an average annual daily basis, or in the 
event any person, who was not withdrawing, diverting or consuming any 
water resources from the ACF Basin as of the effective date of this 
Compact, seeks to withdraw, divert or consume more than one million 
gallons per day on an average annual daily basis from such resources. 
This Article shall not be construed as granting any permanent, vested 
or perpetual rights to the amounts of water used between January 3, 
1992 and the date on which the Commission adopts an allocation formula.
  ``(d) As the owner, operator, licensor, permitting authority or 
regulator of a water resource facility under its jurisdiction, each 
state shall be responsible for using its best efforts to achieve 
compliance with the allocation formula adopted pursuant to this 
Article. Each such state agrees to take such actions as may be 
necessary to achieve compliance with the allocation formula.
  ``(e) This Compact shall not commit any state to agree to any data 
generated by any study or commit any state to any allocation formula 
not acceptable to such state.

                             ``ARTICLE VIII

          ``CONDITIONS RESULTING IN TERMINATION OF THE COMPACT

  ``(a) This Compact shall be terminated and thereby be void and of no 
further force and effect if any of the following events occur:
  ``(1) The legislatures of the states of Alabama, Florida and Georgia 
each agree by general laws enacted by each state within any three 
consecutive years that this Compact should be terminated.
  ``(2) The United States Congress enacts a law expressly repealing 
this Compact.
  ``(3) The States of Alabama, Florida and Georgia fail to agree on an 
equitable apportionment of the surface waters of the ACF as provided in 
Article VII(a) of this Compact by December 31, 1998, unless the voting 
members of the ACF Basin Commission unanimously agree to extend this 
deadline.
  ``(4) The Federal Commissioner submits to the Commission a letter of 
nonconcurrence in the initial allocation formula in accordance with 
Article VII(a) of the Compact, unless the voting members of the ACF 
Basin Commission unanimously agree to allow a single 45 day period in 
which the non-voting Federal Commissioner and the voting State 
Commissioners may renegotiate an allocation formula and the Federal 
Commissioner withdraws the letter of nonconcurrence upon completion of 
this renegotiation.
  ``(b) If the Compact is terminated in accordance with this Article it 
shall be of no further force and effect and shall not be the subject of 
any proceeding for the enforcement thereof in any federal or state 
court. Further, if so terminated, no party shall be deemed to have 
acquired a specific right to any quantity of water because it has 
become a signatory to this Compact.

                              ``ARTICLE IX

     ``COMPLETION OF STUDIES PENDING ADOPTION OF ALLOCATION FORMULA

  ``The ACF Basin Commission, in conjunction with one or more 
interstate, federal, state or local agencies, is hereby authorized to 
participate in any study in process as of the effective date of this 
Compact, including, without limitation, all or any part of the Alabama-
Coosa-Tallapoosa/Apalachicola-Chattahoochee-Flint River Basin 
Comprehensive Water Resource Study, as may be determined by the 
Commission in its sole discretion.

                              ``ARTICLE X

                      ``RELATIONSHIP TO OTHER LAWS

  ``(a) It is the intent of the party states and of the United States 
Congress by ratifying this Compact, that all state and federal 
officials enforcing, implementing or administering other state and 
federal laws affecting the ACF Basin shall, to the maximum extent 
practicable, enforce, implement or administer those 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.
  ``(b) Nothing contained in this Compact shall be deemed to restrict 
the executive powers of the President in the event of a national 
emergency.
  ``(c) Nothing contained in this Compact shall impair or affect the 
constitutional authority of the United States or any of its powers, 
rights, functions or jurisdiction under other existing or future laws 
in and over the area or waters which are the subject of the Compact, 
including projects of the Commission, nor shall any act of the 
Commission have the effect of repealing, modifying or amending any 
federal law. All officers, agencies and instrumentalities of the United 
States shall exercise their powers and authority over water resources 
in the ACF Basin and water resource facilities, and to the maximum 
extent practicable, shall exercise their discretion in carrying out 
their responsibilities, powers, and authorities over water resources in 
the ACF Basin and water resource facilities in the ACF Basin in a 
manner consistent with and that effectuates the allocation formula 
developed pursuant to this Compact or any modification of the 
allocation formula so long as the actions are not in conflict with any 
applicable federal law. The United States Army Corps of Engineers, or 
its successors, and all other federal agencies and instrumentalities 
shall cooperate with the ACF Basin Commission in accomplishing the 
purposes of the Compact and fulfilling the obligations of each of the 
parties to the Compact regarding the allocation formula.
  ``(d) Once adopted by the three states and ratified by the United 
States Congress, this Compact shall have the full force and effect of 
federal law, and shall supersede state and local laws operating 
contrary to the provisions herein or the purposes of this Compact; 
provided, however, nothing contained in this Compact shall be construed 
as affecting or intending to affect or in any way to interfere with the 
laws of the respective signatory states relating to water quality, and 
riparian rights as among persons exclusively within each state.

                              ``ARTICLE XI

                         ``PUBLIC PARTICIPATION

  ``All meetings of the Commission shall be open to the public. The 
signatory parties recognize 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. Prior to the adoption of the initial allocation 
formula, the Commission shall adopt procedures ensuring public 
participation in the development, review, and approval of the initial 
allocation formula and any subsequent modification thereto. At a 
minimum, public notice to interested parties and a comment period shall 
be provided. The Commission shall respond in writing to relevant 
comments.

                             ``ARTICLE XII

                ``FUNDING AND EXPENSES OF THE COMMISSION

  ``Commissioners shall serve without compensation from the ACF Basin 
Commission. All general operational funding required by the Commission 
and agreed to by the voting members shall obligate each state to pay an 
equal share of such agreed upon funding. Funds remitted to the 
Commission by a state in payment of such obligation shall not lapse; 
provided, however, that if any state fails to remit payment within 90 
days after payment is due, such obligation shall terminate and any 
state which has made payment may have such payment returned. Costs of 
attendance and participation at meetings of the Commission by the 
Federal Commissioner shall be paid by the United States.

                             ``ARTICLE XIII

                          ``DISPUTE RESOLUTION

  ``(a) In the event of a dispute between two or more voting members of 
this Compact involving a claim relating to compliance with the 
allocation formula adopted by the Commission under this Compact, the 
following procedures shall govern:
  ``(1) Notice of claim shall be filed with the Commission by a voting 
member of this Compact and served upon each member of the Commission. 
The notice shall provide a written statement of the claim, including a 
brief narrative of the relevant matters supporting the claimant's 
position.
  ``(2) Within twenty (20) days of the Commission's receipt of a 
written statement of a claim, the party or parties to the Compact 
against whom the complaint is made may prepare a brief narrative of the 
relevant matters and file it with the Commission and serve it upon each 
member of the Commission.
  ``(3) Upon receipt of a claim and any response or responses thereto, 
the Commission shall convene as soon as reasonably practicable, but in 
no event later than twenty (20) days from receipt of any response to 
the claim, and shall determine if a resolution of the dispute is 
possible.
  ``(4) A resolution of a dispute under this Article through unanimous 
vote of the State Commissioners shall be binding upon the state parties 
and any state party determined to be in violation of the allocation 
formula shall correct such violation without delay.
  ``(5) If the Commission is unable to resolve the dispute within 10 
days from the date of the meeting convened pursuant to subparagraph 
(a)(3) of this Article, the Commission shall select, by unanimous 
decision of the voting members of the Commission, an independent 
mediator to conduct a non-binding mediation of the dispute. The 
mediator shall not be a resident or domiciliary of any member state, 
shall not be an employee or agent of any member of the Commission, 
shall be a person knowledgeable in water resource management issues, 
and shall disclose any and all current or prior contractual or other 
relations to any member of the Commission. The expenses of the mediator 
shall be paid by the Commission. If the mediator becomes unwilling or 
unable to serve, the Commission by unanimous decision of the voting 
members of the Commission, shall appoint another independent mediator.
  ``(6) If the Commission fails to appoint an independent mediator to 
conduct a non-binding mediation of the dispute within seventy-five (75) 
days of the filing of the original claim or within thirty (30) days of 
the date on which the Commission learns that a mediator is unwilling or 
unable to serve, the party submitting the claim shall have no further 
obligation to bring the claim before the Commission and may proceed by 
pursuing any appropriate remedies, including any and all judicial 
remedies.
  ``(7) If an independent mediator is selected, the mediator shall 
establish the time and location for the mediation session or sessions 
and may request that each party to the Compact submit, in writing, to 
the mediator a statement of its position regarding the issue or issues 
in dispute. Such statements shall not be exchanged by the parties 
except upon the unanimous agreement of the parties to the mediation.
  ``(8) The mediator shall not divulge confidential information 
disclosed to the mediator by the parties or by witnesses, if any, in 
the course of the mediation. All records, reports, or other documents 
received by a mediator while serving as a mediator shall be considered 
confidential. The mediator shall not be compelled in any adversary 
proceeding or judicial forum to divulge the contents of such documents 
or the fact that such documents exist or to testify in regard to the 
mediation.
  ``(9) Each party to the mediation shall maintain the confidentiality 
of the information received during the mediation and shall not rely on 
or introduce in any judicial proceeding as evidence:
  ``a. Views expressed or suggestions made by another party regarding a 
settlement of the dispute;
  ``b. Proposals made or views expressed by the mediator; or
  ``c. The fact that another party to the hearing had or had not 
indicated a willingness to accept a proposal for settlement of the 
dispute.
  ``(10) The mediator may terminate the non-binding mediation session 
or sessions whenever, in the judgment of the mediator, further efforts 
to resolve the dispute would not lead to a resolution of the dispute 
between or among the parties. Any party to the dispute may terminate 
the mediation process at any time by giving written notification to the 
mediator and the Commission. If terminated prior to reaching a 
resolution, the party submitting the original claim to the Commission 
shall have no further obligation to bring its claim before the 
Commission and mayproceed by pursuing any appropriate remedies, 
including any and all judicial remedies.
  ``(11) The mediator shall have no authority to require the parties to 
enter into a settlement of any dispute regarding the Compact. The 
mediator may simply attempt to assist the parties in reaching a 
mutually acceptable resolution of their dispute. The mediator is 
authorized to conduct joint and separate meetings with the parties to 
the mediation and to make oral or written recommendations for a 
settlement of the dispute.
  ``(12) At any time during the mediation process, the Commission is 
encouraged to take whatever steps it deems necessary to assist the 
mediator or the parties to resolve the dispute.
  ``(13) In the event of a proceeding seeking enforcement of the 
allocation formula, this Compact creates a cause of action solely for 
equitable relief. No action for money damages may be maintained. The 
party or parties alleging a violation of the Compact shall have the 
burden of proof.
  ``(b) In the event of a dispute between any voting member and the 
United States relating to a state's noncompliance with the allocation 
formula as a result of actions or a refusal to act by officers, 
agencies or instrumentalities of the United States, the provisions set 
forth in paragraph (a) of this Article (other than the provisions of 
subparagraph (a)(4)) shall apply.
  ``(c) The United States may initiate dispute resolution under 
paragraph (a) in the same manner as other parties to this Compact.
  ``(d) Any signatory party who is affected by any action of the 
Commission, other than the adoption or enforcement of or compliance 
with the allocation formula, may file a complaint before the ACF Basin 
Commission seeking to enforce any provision of this Compact.
  ``(1) The Commission shall refer the dispute to an independent 
hearing officer or mediator, to conduct a hearing or mediation of the 
dispute. If the parties are unable to settle their dispute through 
mediation, a hearing shall be held by the Commission or its designated 
hearing officer. Following a hearing conducted by a hearing officer, 
the hearing officer shall submit a report to the Commission setting 
forth findings of fact and conclusions of law, and making 
recommendations to the Commission for the resolution of the dispute.
  ``(2) The Commission may adopt or modify the recommendations of the 
hearing officer within 60 days of submittal of the report. If the 
Commission is unable to reach unanimous agreement on the resolution of 
the dispute within 60 days of submittal of the report with the 
concurrence of the Federal Commissioner in disputes involving or 
affecting federal interests, the affected party may file an action in 
any court of competent jurisdiction to enforce the provisions of this 
Compact. The hearing officer's report shall be of no force and effect 
and shall not be admissible as evidence in any further proceedings.
  ``(e) All actions under this Article shall be subject to the 
following provisions:
  ``(1) The Commission shall adopt guidelines and procedures for the 
appointment of hearing officers or independent mediators to conduct all 
hearings and mediations required under this Article. The hearing 
officer or mediator appointed under this Article shall be compensated 
by the Commission.
  ``(2) All hearings or mediations conducted under this article may be 
conducted utilizing the Federal Administrative Procedures Act, the 
Federal Rules of Civil Procedure, and the Federal Rules of Evidence. 
The Commission may also choose to adopt some or all of its own 
procedural and evidentiary rules for the conduct of hearings or 
mediations under this Compact.
  ``(3) Any action brought under this Article shall be limited to 
equitable relief only. This Compact shall not give rise to a cause of 
action for money damages.
  ``(4) Any signatory party bringing an action before the Commission 
under this Article shall have the burdens of proof and persuasion.

                             ``ARTICLE XIV

                             ``ENFORCEMENT

  ``The Commission may, upon unanimous decision, bring an action 
against any person to enforce any provision of this Compact, other than 
the adoption or enforcement of or compliance with the allocation 
formula, in any court of competent jurisdiction.

                              ``ARTICLE XV

                   ``IMPACTS ON OTHER STREAM SYSTEMS

  ``This Compact shall not be construed as establishing any general 
principle or precedent applicable to any other interstate streams.

                             ``ARTICLE XVI

   ``IMPACT OF COMPACT ON USE OF WATER WITHIN THE BOUNDARIES OF THE 
                           COMPACTING STATES

  ``The provisions of this Compact shall not interfere with the right 
or power of any state to regulate the use and control of water within 
the boundaries of the state, providing such state action is not 
inconsistent with the allocation formula.

                             ``ARTICLE XVII

                  ``AGREEMENT REGARDING WATER QUALITY

  ``(a) The States of Alabama, Florida, and Georgia mutually agree to 
the principle of individual State efforts to control man-made water 
pollution from sources located and operating within each State and to 
the continuing support of each State in active water pollution control 
programs.
  ``(b) The States of Alabama, Florida, and Georgia agree to cooperate, 
through their appropriate State agencies, in the investigation, 
abatement, and control of sources of alleged interstate pollution 
within the ACF River Basin whenever such sources are called to their 
attention by the Commission.
  ``(c) The States of Alabama, Florida, and Georgia agree to cooperate 
in maintaining the quality of the waters of the ACF River Basin.
  ``(d) The States of Alabama, Florida, and Georgia agree that no State 
may require another state to provide water for the purpose of water 
quality control as a substitute for or in lieu of adequate waste 
treatment.

                            ``ARTICLE XVIII

         ``EFFECT OF OVER OR UNDER DELIVERIES UNDER THE COMPACT

  ``No state shall acquire any right or expectation to the use of water 
because of any other state's failure to use the full amount of water 
allocated to it under this Compact.

                             ``ARTICLE XIX

                             ``SEVERABILITY

  ``If any portion of this Compact is held invalid for any reason, the 
remaining portions, to the fullest extent possible, shall be severed 
from the void portion and given the fullest possible force, effect, and 
application.

                              ``ARTICLE XX

                    ``NOTICE AND FORMS OF SIGNATURE

  ``Notice of ratification of this Compact by the legislature of each 
state shall promptly be given by the Governor of the ratifying state to 
the Governors of the other participating states. When all three state 
legislatures have ratified the Compact, notice of their mutual 
ratification shall be forwarded to the Congressional delegation of the 
signatory states for submission to the Congress of the United States 
for ratification. When the Compact is ratified by the Congress of the 
United States, the President, upon signing the Federal ratification 
legislation, shall promptly notify the Governors of the participating 
states and appoint the Federal Commissioner. The Compact shall be 
signed by all four Commissioners as their first order of business at 
their first meeting and shall be filed of record in the party 
states.''.

SEC. 2. INCONSISTENCY OF LANGUAGE.

  The validity of the compact consented to by this Act shall not be 
affected by any insubstantial difference in its form or language as 
adopted by the States.

SEC. 3. RIGHT TO ALTER, AMEND, OR REPEAL.

  The right to alter, amend, or repeal this joint resolution is hereby 
expressly reserved.

SEC. 4. RESERVATIONS.

  To ensure participation of Federal agencies during the development of 
the allocation formula and participation in all technical working 
groups and meetings in which the terms and conditions of the allocation 
formula are negotiated and to preserve Federal discretion under law, 
the consent of Congress to, and participation of the United States in, 
the Apalachicola-Chattahoochee-Flint River Basin Compact, is subject to 
the following conditions and reservations:
          (1) Representatives of any Federal agency may attend any and 
        all meetings of the Commission.
          (2) Upon the request of the Federal Commissioner, 
        representatives of any Federal agency may participate in any 
        meetings of technical committees, if any, of the Commission at 
        which the basis or terms and conditions of the allocation 
        formula or modifications to the allocation formula are to be 
        discussed or negotiated.
          (3) The Federal Commissioner shall be given notice of any 
        meeting of the Commission or any meeting of technical 
        committees, if any, of the Commission at which compliance with 
        the allocation formula by one or more officers, agencies, or 
        instrumentalities of the United States is to be discussed.
          (4) Under the provisions of Article VII(a), the Federal 
        Commissioner may submit a letter of concurrence with the 
        allocation formula unanimously adopted by the State 
        Commissioners within 255 days of such adoption.
          (5) No mediator shall be selected under Article XIII(b) or 
        Article XIII(c) without the concurrence of the Federal 
        Commissioner and no resolution of a dispute under Article 
        XIII(c) shall be made binding on the United States without the 
        concurrence of the Federal Commissioner.
          (6) The obligations of employees, agencies, and 
        instrumentalities of the United States pursuant to Articles 
        VII(b), X(a), and X(c) to exercise their discretion, to the 
        maximum extent practicable, in a manner consistent with the 
        allocation formula shall not be construed to interfere with the 
        ability of such employees, agencies, and instrumentalities to 
        take actions during emergency situations.
          (7) As among water right holders within any one State, 
        nothing in this Compact shall be construed as affecting or 
        intending to affect or in any way to interfere with the laws of 
        the respective signatory States relating to riparian rights of 
        the United States in and to the waters of the Apalachicola-
        Chattahoochee-Flint River Basin.

SEC. 5. EFFECTUATION.

  (a) Federal Agency Authority.--To carry out the purposes of this 
Compact, Federal agencies are authorized, as they may deem 
appropriate--
          (1) to engage in cooperative relationships with the 
        Commission;
          (2) to conduct studies and monitoring programs in cooperation 
        with the Commission;
          (3) to enter into agreements to indemnify private landowners 
        against liability that may arise from studies and monitoring 
        programs undertaken in cooperation with the Commission; and
          (4) to furnish assistance, including the provision of 
        services, facilities, and personnel, to the Federal 
        Commissioner.
  (b) Appropriations.--Appropriations are authorized as necessary for 
implementing the Compact, including appropriations for carrying out the 
functions of the Federal Commissioner and alternates and for employment 
of personnel by the Federal Commissioner.

                          Purpose and Summary

    H.J. Res. 91 grants consent of Congress to the 
Apalachicola-Chattahoochee-Flint (ACF) River Basin Compact 
entered into by the states of Alabama, Florida and Georgia 
providing for the creation of a commission to develop a formula 
allocating waters from the basin among the signatory states. 
The ACF Basin Commission, composed of one voting member from 
each state (either the governor or his appointee) and a non-
voting member appointed by the President of the United States, 
is directed to agree on an equitable apportionment of the 
surface waters of the ACF Basin by December 31, 1998 unless the 
voting members of the Basin Commission unanimously agree to 
extend the deadline.

                Background and Need for the Legislation

    Article I, section 10, clause 3 of the United States 
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. * * * '' 
Congressional consent is required for such agreements and 
compacts in order to determine whether they work to the 
detriment of another state and to ensure that they do not 
conflict with Federal law or Federal interests.
    Alabama, Florida and Georgia have for some time been 
negotiating over allocation of the waters of the ACF Basin. 
Concerned about the potential impact of proposed reallocations 
of storage from federal reservoirs in Georgia, Alabama filed 
suit in 1990 in Federal District Court to prevent the U.S. Army 
Corps of Engineers from reallocating storage without completing 
adequate environmental assessments. The State of Florida later 
joined Alabama in the suit. Thereafter, the three states and 
the Corps of Engineers, seeking to negotiate and resolve the 
issue, agreed that a comprehensive study needed to be conducted 
by a partnership of the three states and the federal 
government.
    In 1992 the three states adopted a Memorandum of Agreement 
committing themselves to: a partnership which involved a ``live 
and let live'' understanding on water use and management in ACF 
Basin; a joint comprehensive study of water resources issues; 
achievement of a long-term water management agreement among the 
partners; and placing the lawsuit in an inactive status. The 
MOA expires on December 31, 1997. The ACF Compact, together 
with a virtually identical compact concerning the Alabama-
Coosa-Tallapoosa (ACT) River Basin, was negotiated from 
September through December 1996 by the states and the federal 
government.\1\ The states adopted the ACF Compact during their 
1997 legislative sessions.\2\
---------------------------------------------------------------------------
    \1\ The Alabama-Coosa-Tallapoosa River Basin Compact was entered 
into by Alabama and Georgia. It is proposed for Congressonal approval 
in H.J. Res. 92.
    \2\ Alabama (1997 Alabama Laws Act 97-67 [H.B.35]); Georgia (1997 
Georgia Laws Act 7 [H.B. 149]); and Florida (1997 Florida Laws Ch. 97-
25 [C.S.S.B. 788]).
---------------------------------------------------------------------------
    The issue of water allocation is of considerable importance 
to the three states. The ACF and ACT river basins effect more 
than 22,000 square miles in Georgia, comprising 39 per cent of 
the land mass of that state. Within Alabama, the figure is more 
than 17,000 square miles and 34 per cent of the state. 
Florida's effected area is more than 2,000 square miles and 4 
per cent of the state. The ACF Basin intertwines the three 
states in a cause and effect commonality of interests. Two 
droughts in the 1980's created significant water shortages in 
the ACF Basin and led to disputes and litigation about water 
allocation in the basin from federally owned and operated flood 
control projects. An increased need for drinking water, as well 
as an increased need for water for agricultural and industrial 
uses, has effected the availability of fresh water downstream 
flowing into Apalachicola Bay in Florida, increasing salinity 
levels and posing a threat to marine life in the bay.

                                Hearings

    The Subcommittee on Commercial and Administrative Law of 
the Judiciary Committee held a hearing on H.J. Res. 91 on 
October 23, 1997. Testimony was received from 6 witnesses: Rep. 
Bob Barr; Rep. Allen Boyd; Peter D. Coppelman, Department of 
Justice; G. Robert Kerr, State of Georgia, accompanied by 
Harold Reheis, State of Georgia; Walter B. Stevenson, State of 
Alabama and Douglas E. Barr, State of Florida.

                        Committee Consideration

    On October 23, 1997, the Subcommittee on Commercial and 
Administrative Law met in open session and ordered reported the 
joint resolution, H.J. Res. 91, as amended, by a voice vote, a 
quorum being present. On October 29, 1997, the Committee met in 
open session and ordered reported favorably the joint 
resolution H.J. Res. 91, as amended, by voice vote, a quorum 
being present.

                         Vote of the Committee

    There were no recorded votes.

                      Committee Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House Rule XI is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

                        Committee Cost Estimate

    The estimate of the Congressional Budget Office was not 
available at the time of filing this report. In compliance with 
clause 7(a) of rule XIII of the Rules of the House of 
Representatives, the Committee believes that enactment of H.J. 
Res. 91 will not have substantial budget effect for fiscal year 
1998.

                   Constitutional Authority Statement

    Pursuant to rule XI, clause 2(l)(4) of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article I, Section 10, Clause 3, of the 
Constitution.

                      Section-by-Section Analysis

Section 1. Congressional consent

    This section gives the consent of Congress to the 
Apalachicola-Chattahoochee-Flint (ACF) River Basin Compact 
between Georgia, Florida, and Alabama and the United States, 
for the purpose of long term management of the waters of three 
river basins in these States: the Apalachicola, Chattahoochee, 
and Flint. It sets out the text of the compact.
    Article I. Establishes purposes as promoting interstate 
comity, removing controversies, and equitably apportioning the 
surface waters of the three river basins.
    Article II, III, and IV. Establish the scope as all waters 
in the three river basins; name the three states and the United 
States as parties; and provide definitions.
    Article V. States that the Compact is binding only after 
all three State legislatures and the U.S. Congress enact it 
into law.
    Article VI. Creates the Apalachicola-Chattahoochee-Flint 
(ACF) River Basin Commission with three State Commissioners who 
are voting members, and a non-voting Federal Commissioner. 
While the States' Governors are the State Commissioners, they 
shall appoint alternates who shall act in their place. The 
President appoints the Federal Commissioner. All decisions are 
by unanimous vote of the State Commissioners. The Commission 
shall meet at least once a year; it shall adopt by-laws. It has 
broad powers to conduct studies; to plan, coordinate, and 
monitor waters; and most importantly, to establish and modify 
an allocation formula for apportioning the waters of the ACF 
Basin among the States.
    Article VII. Provides that once the State Commissioners 
adopt an allocation formula, it becomes binding when the 
Federal Commissioner concurs with it or fails to take any 
action. If the Federal Commissioner does not concur within 210 
days, he may nonconcur within 45 more days, but nonconcurrence 
is to be based only on federal law. Federal employees must 
operate federal projects (dams) in a manner to help meet the 
allocation formula as long as such operation is consistent with 
federal laws. The States agree to make their best efforts to 
achieve compliance with the allocation formula.
    Article VIII. Provides that the Compact is terminated if 
any of four events occur:
    (1) the State legislatures enact laws to terminate it;
    (2) the Congress repeals it;
    (3) the States fail to agree on an allocation formula by 
December 31, 1998; or
    (4) the Federal Commissioner issues a letter of 
nonconcurrence.
    Article IX. Provides that studies may be conducted as 
needed by the Commission.
    Article X. Provides that all State and Federal officials 
administering other laws affecting the ACF Basin shall, to the 
maximum extent practicable, administer those laws to help meet 
the allocation formula, so long as there is no conflict with 
other laws. The Compact does not restrict the emergency powers 
of the President, nor impair the constitutional authority of 
the United States, nor affect the state laws on water quality 
and riparian rights.
    Article XI. Provides for general public participation 
specifically on the development, review, and approval of the 
allocation formula.
    Article XII. Requires Commissioners to serve without 
compensation and operational funds to be provided equally by 
the States.
    Article XIII. Sets non-binding mediation as the principal 
dispute resolution process among the States; disputes not 
settled by mediation may be resolved in a court of competent 
jurisdiction; and any actions brought are limited to equitable 
relief only (no money damages).
    Article XIV. Provides that the Commission may bring actions 
against any person to enforce the Compact.
    Article XV. Provides that the Compact shall not be 
construed as establishing principles or precedents applicable 
to any other interstate streams.
    Article XVI. Provides that the Compact shall not affect the 
rights or powers of any State to regulate the use and control 
of waters within the State, as long as State actions are not 
inconsistent with the allocation formula.
    Article XVII. Commits the states to cooperation in 
maintaining the water quality of the ACF Basin.
    Article XVIII. Provides that no State acquires a right to 
the use of water because of another State's failure to use all 
of its allocated water.
    Article XIX. Provides that the Compact is severable.
    Article XX. Requires notices of ratification to be promptly 
given.

Section 2. Inconsistency of language

    This section provides that insubstantial differences in 
form or language as adopted by the States shall not effect the 
validity of the compact.

Section 3. Right to Alter, Amend, Repeal

    This section reserves the right to alter, amend, or repeal 
the joint resolution.

Section 4. Reservations

    This section sets out federal reservations to the compact. 
(1) Representatives of any Federal agency may attend any 
meeting of the Commission. (2) Upon request of the Federal 
Commissioner, representatives of any Federal agency may 
participate in any meetings of technical committees, if any, of 
the Commission at which the basis or terms and conditions of 
the allocation formula or modifications to it are to be 
considered. (3) The Federal Commissioner shall be given notice 
of any meeting of the Commission or its technical committees at 
which compliance with the allocation formula by one or more 
officers, agencies or instrumentalities of the United States is 
to be discussed. (4) Under the provisions of Article VII(a), 
the Federal Commissioner may submit a letter of concurrence 
with the allocation formula within 255 days of its adoption by 
the State Commissioners. (5) No mediator shall be selected 
under Article XIII(b) or Article XIII(c), nor shall any 
resolution of a dispute under Article XIII(c) be made binding 
on the United States without concurrence of the Federal 
Commissioner. (6) The obligations of employees, agencies, and 
instrumentalities of the United States pursuant to Articles 
VII(b), X(a), and X(c) to exercise their discretion, to the 
maximum extent practicable, in a manner consistent with the 
allocation formula shall not be construed to interfere with the 
ability of such employees, agencies and instrumentalities to 
take actions during emergency situations. (7) As among water 
right holders within one State, nothing in the Compact shall be 
construed as affecting or intending to affect or in any way 
interfere with the law of the respective signatories relating 
to the riparian rights of the United States in and to the 
waters of the ACF Basin.
    The Subcommittee adopted, on a voice vote, an amendment 
offered by Chairman Gekas which made two changes agreed to by 
the Department of Justice and the states.
    First, the amendment deleted the reference to ``mandates'' 
in section 4, paragraph 6 of the introduced joint resolution, 
in order to make clear that, as the preamble of the section 
states, the Compact ``preserve[s] federal discretion under 
law'' when complying with water allocation formulas. In 
response to a question from Ranking Member Nadler, witnesses 
from the Department of Justice and the states agreed that this 
change would preserve the discretion of federal agencies to 
enforce the laws they are responsible for administering.
    Second, the words ``and no resolution of a dispute under 
Article XIII(c) shall be made binding on the United States 
without concurrence of the Federal Commissioner'' were added at 
the end of section 4, paragraph 5.

Section 5. Effectuation

    Subsection (a) authorizes federal agencies to: (a) engage 
in cooperative relationships with the Commission; (b) conduct 
studies and monitoring programs in cooperation with the 
Commission; (c) enter into agreements to indemnify private 
landowners against liability that may arise from studies and 
monitoring programs undertaken in cooperation with the 
Commission; and (d) furnish assistance, including the provision 
of services, facilities, and personnel, to the Federal 
Commissioner.
    Subsection (b) authorizes appropriations as necessary for 
implementing the Compact, including appropriations for carrying 
out the functions of the Federal Commissioner and alternates 
and for employment of personnel by the Federal Commissioner.

                              Agency Views

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                   Washington, DC, October 1, 1997.
Hon. George W. Gekas,
Chairman, Subcommittee on Commercial and Administrative Law,
Committee on the Judiciary
Washington, DC.
    Dear Mr. Chairman: This letter provides the 
Administration's views on H.J. Res. 91, a Joint Resolution 
granting the consent of Congress to the Apalachicola-
Chattahoochee-Flint (ACF) River Basin Compact, and H.J. Res. 
92, a Joint Resolution granting the consent of Congress to the 
Alabama-Coosa-Tallapoosa (ACT) River Basin Compact. The 
Administration supports passage of the Joint Resolutions, 
provided four amendments are made to Section 4.
    H.J. Res. 91 and 92 concern two water basins: the ACF basin 
extends through Georgia, Alabama and Florida and the ACT basin 
extends through Georgia and Alabama. The compacts for both 
basins have been ratified by the affected state legislatures 
and are now before Congress for approval. The Department of 
Justice has represented the Administration in its negotiations 
with Alabama, Florida, and Georgia and supports the development 
of cooperative management of the scarce water resources in the 
two basins. We believe that a cooperative relationship among 
the three states and the federal agencies will promote the 
public interest, help resolve disputes, and further the 
interests of the state and federal agencies that manage 
programs in these basins. The Administration's proposed 
amendments to H.J. Res. 91 and H.J. Res. 92, outlined below, 
are necessary to achieve these goals.

                             I. Background

    H.J. Res. 91 and 92 contain provisions that essentially 
mirror each other. Section 1 provides the consent of Congress 
to the applicable compacts, and recites each compact in full. 
Section 2 preserves the validity of each compact 
notwithstanding insubstantial differences in form or language 
as adopted by each State. Section 3 preserves Congress' right 
to amend each compact. Section 4 addresses the need for federal 
agency participation and the preservation of federal 
discretion, and clarifies several compact provisions. Finally, 
Section 5 authorizes federal agencies to conduct joint studies, 
monitoring programs and other activities with the Commission 
established by the compacts and to provide assistance to the 
Federal Commissioner. It also authorizes appropriations for the 
purpose of implementing the compacts.
    The compacts, as ratified by the states, provide for future 
development and implementation of water allocation formulas for 
the ACF and ACT river basins. Each compact establishes a 
Commission comprised of a voting Commissioner from each State 
and a nonvoting Federal Commissioner. These Commissions are 
charged with developing a water allocation formula for their 
respective basins by December 31, 1998, unless the voting 
members unanimously agree to extend that deadline. After the 
voting members unanimously agree on a formula, the Federal 
Commissioner would have 255 days to concur or not concur on the 
formula. The formula becomes effective if the Federal 
Commissioner fails either to accept or reject the formula 
within the 255 day period. Further, any decision not to concur 
must be based on federal law. After adoption of an allocation 
formula, the compacts would require each federal agency to 
comply with the formula to the maximum extent practicable, 
unless compliance would conflict with federal law. The compacts 
contain several other provisions, including provisions for 
alternative dispute resolution and public review of proposed 
allocation formulas.

                     ii. Administration Amendments

    We recommend four changes to Section 4 of the Joint 
Resolutions. First, and most significant, we recommend that 
paragraph (6) be amended as follows:

          (6) [The obligations of employees, agencies, and 
        instrumentalities of the United States pursuant to 
        Articles VII(b), X(a), and X(c) to exercise their 
        discretion, to the maximum extent practicable, in a 
        manner consistent with the allocation formula shall not 
        be construed to interfere with the ability of such 
        employees, agencies, and instrumentalities to take 
        actions mandated by Federal law or during emergency 
        situations.] This Compact preserves Federal agency 
        discretion under law when meeting the obligation to 
        comply, to the maximum extent practicable, with an 
        allocation formula.

    As introduced, paragraph (6) is contrary to one of the 
stated purposes of Section 4, specifically the goal of 
preserving ``Federal discretion under law.'' (emphasis added). 
(See page 29, line 18 of H.J. Res. 91, and page 29, line 13 of 
H.J. Res. 92). As currently drafted, paragraph (6) fails to 
recognize that federal programs in the basins are founded on 
the exercise of discretion. Congress has charged federal 
agencies with the responsibility of constructing and operating 
projects for a variety of purposes, such as navigation, flood 
control, hydropower, recreation, fish and wildlife protection, 
water quality and water supply. The statutory authorities for 
these projects require the agencies to exercise discretion as 
they balance these competing objectives in order to maximize 
the public interest. The Administration's substitute language 
reflects this Congressional intent, and recognizes that, while 
the federal agencies fully intend to administer their programs 
consistent with the adopted water allocation formulas, under 
some circumstances, federal agencies may be constrained from 
following the formulas because of the need to exercise 
discretion as they carry out the statutory trust that has been 
placed in them by Congress. Preservation of this statutory 
discretion is particularly important because, unlike other 
water compacts, these two do not include the allocation 
formulas which will control the parties. Instead, they only 
provide procedures for developing the formulas, and one can 
only speculate on their ultimate composition.
    The Administration's proposed substitute language was 
developed and agreed to earlier during negotiations hosted by 
the Speaker of the House. In a letter memorializing those 
negotiations and sent to Army Assistant Secretary Lancaster on 
January 11, 1997, the Speaker proposed inclusion of the above 
language in a resolution implementing the compacts.
    The second and third Administration amendments seek to 
reflect what all the parties to the compacts already have 
agreed--that there is a need for federal agency participation 
in technical committee meetings of the Commissions held for the 
purpose of developing or amending the water allocation formula, 
and in meetings where federal compliance with a water 
allocation formula is discussed. The following two amendments 
will fulfill this need.
    To ensure full federal participation in meetings where 
development of a water allocation formula is at issue, we 
recommend the amendment of Section 4, paragraph (2) (page 30, 
lines 1-2 of H.J. Res. 91 and page 29, lines 20-21 of H.J. Res. 
92) by deleting the first clause, as follows:

          [Upon the request of the Federal Commissioner,] 
        Representatives of any Federal agency may participate 
        in any meetings of technical committees, if any, of the 
        Commission at which the basis or terms and conditions 
        of the allocation formula or modifications to the 
        allocation formula are to be discussed or negotiated.

    Article VII(a) of the compacts requires that the Federal 
Commissioner be given noticeof technical committee meetings at 
which the allocation formula is discussed. As drafted, paragraph (2) of 
H.J. Res. 91 & 92 would give federal agencies access to those meetings 
only if the Federal Commissioner requests their attendance. This 
requirement will impede federal agency participation at the technical 
committee meetings and will work to the detriment of all parties. 
Federal agency participation is critical not only to allow the agencies 
to express their views at the meetings but also to allow them to keep 
abreast of formula developments, so that they may complete any 
necessary environmental or other analyses within the 255-day deadline 
allowed for federal concurrence on a proposed allocation formula.
    To ensure full federal participation in meetings held to 
discuss federal compliance with a water allocation formula, we 
also recommend that section 4, paragraph (3) (page 30 of both 
resolutions) be amended as follows:

          (3) The Federal Commissioner shall be given notice of 
        any meeting of the Commission or any meeting of 
        technical committees, if any, for the Commission at 
        which compliance with the allocation formula by one or 
        more officers, agencies, or instrumentalities of the 
        United States is to be discussed, and representatives 
        of any Federal agency may participate in any such 
        meeting of technical committees.

    Paragraph (3) provides for notice to the Federal 
Commissioner of any technical committee meetings of the 
Commission where federal compliance with an allocation formula 
will be discussed. However, unlike the preceding paragraph on 
technical committee meetings held to develop an allocation 
formula, paragraph (3) omits the provision for federal agencies 
to participate in the meetings. The suggested addition would 
correct that omission, and would make the paragraph conform 
with paragraph (2), by giving federal agencies the ability to 
participate in both types of meetings. The opportunity to 
participate at any meetings on federal compliance is important 
to allow for early action to remedy any alleged violations.
    The fourth recommendation seeks to amend the dispute 
resolution provisions in order to make the procedures for 
Federal agency participation parallel to the state procedures. 
We recommend that section 4, paragraph (5) (page 30 of both 
resolutions) be amended as follows:

          (5) No mediator shall be selected under Article 
        XIII(b) or Article XIII(c) without the concurrence of 
        the Federal Commissioner, and no resolution of a 
        dispute under Article XIII(c) shall be made binding on 
        the United States without concurrence of the Federal 
        Commissioner.

    Article XIII of the Compacts provides for dispute 
resolution procedures which can be a helpful tool for avoiding 
expensive and time-consuming litigation. While most of Article 
XIII specifies procedures for dispute resolution between the 
states, paragraph (c) allows the United States to initiate the 
procedures ``in the same manner as other parties to the 
Compact.'' See page 24, lines 4-6 of both resolutions.
    Paragraph (a)(4) of the Dispute Resolution title provides 
that, in order for a resolution of a dispute under alternative 
dispute resolution procedures to be binding on the states, all 
parties must agree to be bound. See page 20, lines 9-13 of both 
resolutions. The language proposed above would similarly 
provide that, should the Federal Commissioner agree to 
participate in an alternative dispute resolution proceeding, 
that decision could not be binding on the United States without 
the agreement of the Federal Commissioner. This change will 
allow for the United States to participate in alternative 
dispute resolution in the ``same manner'' as the states.
    In sum, we support enactment of H.J. Res. 91 and H.J. Res. 
92 with the four recommended changes. We believe these 
amendments will further the interests of both the federal and 
state agencies that manage programs in these basins.
    The Office of Management and Budget has advised that there 
is no objection to the submission of this letter from the 
standpoint of the Administration's programs.
            Sincerely,
                                               Andrew Fois,
                                        Assistant Attorney General.

                                
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