Description of available institutional alternatives for improved Chesapeake Bay management

[From the U.S. Government Printing Office, www.gpo.gov]

DESCRIPTION OF AVAILABILITY
INSTRUCTIONAL ALTERNATIVES FOR
IMPROVED CHESAPEAKE BAY MANAGEMENT

NOV 1979

GB
459.5
.C4
D47
1979

17/61

DESCRIPTION OF AVAILABLE INSTITUTIONAL

ALTERNATIVES FOR IMPROVED

CHESAPEAKE BAY MANAGEMENT

Prepared for the

CHESAPEAKE BAY LEGISLATIVE ADVISORY COMMISSION

ORPORATED
HABITAT, INC
48 Randall Street
Annapolis, Maryland
21401

November 1979

Maryland Chesapeake Bay Legislature Advisory Commission W.P.
LB459.5.C40471979

This.report was prepared
with f-unding from the Maryland
Tidewater Administration and the
Federal Office of Coastal Zone Management.

TABLE OF CONTENTS

Page

PREFACE.

INTRODUCTION: ADAPTING GOVERNMENTAL INSTITUTIONS iii
FOR A-NATURAL SYSTEM

l..O IMPROVED BAY MANAGEMENT UNDEREXISTING
INSTITUTIONS

1.1 Introduction

1.2 Overview of Primary Agency Responsibilities 2

1.3 Past Improvements in the Interstate 151.
Management Capabilities of'Existing
A
encies
g

1.4 Potential for Improvements of Existing
21
institutions for Baywide Problems

1.5 Stimmary 26

2.0 INTERSTATE COMMISSIONS
29
2 .1 Introduction 29
2.2 Creating an Interstate Commission 30
2.3 Authority Relationships 31
2.4 Experience with Interstate Commissions 34

2.5 Funding Sources 39

3.0 FEDER.AL-INTERSTATE COMMISSIONS 46
3.1 Introduction 46
3.2 Creation of a-Federal-Interstate Commission 46

3.3 Authority Relationships 47
3.4 Experience with Federal-Interstate 50
Commissions

Page

3.5 Funding Sources 54

4.0 TITLE II COMMISSIONS 58.-

4.1 Introduction 58

4.2 Creating a Title II Commission 58

4.3 Authority Relationships

4.4 Experience with Title-Il Commissions 62
4.'5 Funding-Sources .68
4.6 Summary 69
5.0 COASTAL ZONE MANAGEMENT ACT SECTION 309 75
@COMMISSIONS

5.1 Introduction 75

5.2 Creating a Section 309 -Commission 77

5.3 Authority Relationships 80

5.4 Experience with Section 309 Commissions 81

5.5 Funding Sources 81

5.6 Summary 82

6.0 SE CTION 208 INTERSTATE PLANNING AGENCY 84

6.1 Introduction 84

6.2 Creating a Section 208 Planning Agency 84

6.3 Authority Relationships 86

6.4 Experience with Section 208 Planning 87
Agencies

6.5 Funding Sources 88

6.6 Summary 88

7.0 FEDERAL RE71ONAL Y_@NAGEMENT AGENCY 90

7.1 Discussion 90

Page

Appendix A 93

PREFACE

This report was prepared for the.assistance of the

Chesapeake Bay Legislative Advisory Commission. It is the,

first segment of a two-phase study, and is designed to iden-

tify management structures for the Chesapeake Bay.

The Chesapeake Bay Legislative Advisory Commission
(CBLAC) 'came into existence through the passage of resolutionsi

in the General Assemblies of Maryland and Virginia during the
1978 session. The Commission's charge is to examine existing

and proposed institutions and to report to the.1980 sessions.

of both state legislatures with recommendations for the most
desirable Bay management 'alternatives. In carrying out this

undertaking the Commission sought and received the counsel of

numerous private individuals, scientists,,and a plethora of

local, state and federal agencies. These contributions have

ranged from brief letters to extensive studies on management.

needs and options for the Chesapeake Bay. The Commission

initially identified the basic issues and sought information

reflecting on these issues. A substantial amount of'raw

informational data has been contributed, some of which

generated new management ideas.

This report is an attempt to synthesize the collected

information for presentation to the Commission. There are no

new discoveries or recommendations in this initial report;

this study identifies those management techniques presently-
utilized for the Bay and secondly explores other available

@management structures. We have drawn upon the ideas and

information submitted to the Commission and to some extent

have incorporated-that material into the discussions of the

respective institutions. The discussion of these institutional

choices is not carried out as a pure academic endeavor but

tions as an attempt to relate.these institutions to the social,
he' ecologic and political character of the subject, the Chesapeake
ng@ Bay.

-ons
ts
is

have

nt
ton

ire no

INTRODUCTION: ADAPTING GOVERNMENt INSTITUTIONS
FOR A NATURAL SYSTEM

For many years concerned observers have seen an increase

in the pressures and stresses placed upon the resources of the

Chesapeake Bay and its tributaries. As human activities have

increased in intensity.throughout.the Bay watershed, there has

been a grow@ing consensus that the resources of the Bay must be

husbanded bylthe concerted efforts of all concerned jurisdic-

tions.

The Chesapeake Bay was formed,by geologic and hydro-
logic forces without regard to the inter-jurisdictional bound-

aries which man would later impos.e across p.arts of thia naturd

system. The natural forces and human activities which-affect

this system are unconstrained by physical or,jurisdictional

boundaries or even interagency divisions of responsibility.

For these reasons the question has been'presented with in-

creasing urgency whether the residents of the Bay region

should reshape their management institutions to better adapt
to the natural characteristics of this,interstate ecosystem.
The adaptation of governmental institutions to respond

to such needs is not a novel concept. The array of problems

that state and.local governments must address daily have often

required solutions that transcend the limitations upon the

usual bureaucratic and legislative apparatus. As a result,

many states have sought innovations in governmental machinery

which can succes'sfully overcome legal and political constraints

imposed by state and local boundaries, withou
t necessarily

abdicatin e 0
g, their authority in favor of f deral c ntrols.
Attempts to tinke with the seemingly sacrosanct delimitation.'
r 2.

S.; of federal and-state responsibility date back.to.the earliest

be ars of the United States itself.
ye More recently, especially
in the period since the New Deal, the interest in inter-
governmental organizations has proliferated. These precedents
offer guidance 'in analyzing the potential benefits of such

organizations as adapted to the Chesapeake.Bay situation.
4_1
A careful examination of their form and effectiveness may

lead to a better understanding of potential administrative,

legal and political obstacles that may arise as officials

@4'
formulate alternatives for better management..and coordinatibn

of governmental activities in the Chesapeake Bay region.

From time to time various specific institutional

caanges have been suggested as a means of improving one or

e more areas of resource management and economic development in

the Chesapeake Bay region. This report examines a number of
et these specific alternativesi, and defines.the characteristics
oren' aj.,id limitations of each.
.e

IV,

1.0. INPROVED BAY MANAGEMENT UNDER EXISTING INSTITUTIONS

1.1 Introduction

A number of local, state. and federal administrative

agencies have been assigned roles in management, preservation'
and development of,land and water resources in the Chesapeake,-
Bay region. Some of these agency functions are ineffective,

historical artifacts; on the other hand, the responsibilities

of many agencies have evolved and developed according to

changing needs and today represent the efforts of many years

in consolidating, reformingand improving agency functions.

Regardless of their faults and limitations, existing agencies.

may be considered as vehicles for improved Bay management for

several reasons. First, existing agencies have a history of

action anda familiarity with the problems of the Bay and

with the related functions of other agencies. The value of
this experience should not1be discounted. By adapting exist-
ing institutions, management changes would be more evolution-
ary in nature and would avoid-the difficulties in organizing.,

funding, staffing, equipping, and transferring functions

which might be involved with the creation of a new management

institution. Existing political relationships would be pre-

served. Existing funding sources would be available.

The sections which follow sunmarize the basic gov-

ernmental functions and the primary roles
of existing agencies
in each of the six subject areas identified for study by the-

Chesapeake Bay Legislative Advisory Commission., This outline

@is followed by a discussion of some past efforts and'accom-

plishments of these agencies and some suggestions for the

improvement of existing institutions in their response to
ake int'erstate problems.

Overview. of Primary Agency Responsibilities

The Commission has identified six functional

r areas for specific.co.nsideration:,transportation, fisheries
and wildlife, recreation,. economic planning and major- fa,c-'
ility siting, research and information, and water quality.

This overview will briefly describe the functions of the

of various federal and state agencies in each particular.area

and the relationship of one to the'other.

Transportation--Grouped under the general heading

of transportation are governmental activities including

traffic management, port development, channel dredging,
ing,@ dredge spoil disposal, and. the handling. of emergencies.
4
The principal federal agencies having responsi-

bilities in these areas are.the,Coast Guard,.the Army Corps

re- of Engineers and the Environmental Protection Agency. The

4 Coast Guard has authority over vesse'@.' traffic 'control and
T
ment tool for ship dil-charges
serves as the primary enforce

and oil spills.2 The Army Corps of,Engineers is responsible
oprietary and regulatory capacity for the improvement
in a pr
of navigable waters of.the Chesapeake*Bay. 'The erection of

structures such'as wharves,- piers, or pipelines requires
Corps permission.. The Corps of Engineers', authority to

,regulate dredging and spoil disposal in navigable waters is

coordinated with the Environmental Protection Agency and
other interested federal, state and',Iocal agencies.. The

Corps may undertake its own dredging projects, after con-

sultation with other agencies aAd Congressional authoriza-
tion and it must also reg'ulate'priv@Lte*dredging activity. 3,

EPA, the Fish and.Wildlife Service and.otherfederal agencies
charged with protecting environmental interests have the Fe-
sponsibility to comment on the Corps' developmental and reg-

ulatory activities.
InMaryland the Department of Transportation is
involved with.Bay-,related transportation issues,through,
-the Maryland Port Administration. 4 The Administration is
responsible for promoting harbor facilities,throughout the.
State. Because of its relative size and importance,. the

port of Baltimore. is the focus of MPA's attention. -The

Administration not only facilitates the activities of pri-

@vate industry within port locations, but also operates its

own terminal facilities and provides port police. The

Department of Natural Resources also regulates certain

transportation related activities. For instance,, the Depart-
ment (together with the Board of Public Works) must also
5
authorize any dredging in Chesapeake Bay waters. The Water

Resources Administration, a subagency of Natural Resources.,
U4
regulates the handling of oil and licenses those facilities
A
6
which engage in this,activity. The Waterways Improvement

Fund is administered by the Department to finance dredgin
.9
7
projects and other improvements to navigation. -The Natural.

Resources police not only enforce the State game laws, but

also enforce boating safety regulations.

In Virginia the transportation sector is marraged
les" and regulated by the State Water Control Boardt. the-
re- Virginia Port Authority, and the Marine Re-sources Commission.

T
-State Water Control Board has responsibility for..promul-
he

gating and enforcing regulations concerning the discharge of
2,
8
oil and other hazardous substances into State waters. To

the extent that transportation activities affect wetlands

the Marine Resources Commission plays an important part by

virtue of its responsibility for shellfish beds and adminis-
9
tration of the State Wetlands Act. Finally, the Virginia

Port Authority functions in much the same way as the Maryland
10
Port Authority. It is charged with the promotion, improve-
its i": ment and.long-.term management of Virginia's@ports.
Fisheries and Wildlife--This topic embraces the
management of migratory fin and.shellfish, the maititenance of.

spawning and nursery areas, wetlands protection, joint fisher-:

Les management and wildlife and game resources...

In this area the federal agencies are primarily

concerned with.enforcing the various game laws which protect.@
migratory species and with regulating activities with a

potential for altering the existing environment. The game

laws are enforced by wardens of the U.S. Fish and Wildlife

Service, who closely coordinate their work with state enforce-

'The Department of
ment agencies. in Maryland and Virginia.

..the Interior is also'concerned with the management of national
parksland.wildlife refuges in the Bay area.: Agencies:.of the

Department of Commerce have two important responsibilities

related to fisheries and wildlife. First,.the.National Marine

Fisheries Service is responsible for fishery resources deve op
ment activities, which include: market research, loan guarantee!

for rehabilitating or cons.tructing vessels andsuggestions
for improving market practices.. 12 Commercess second area of
responsibility is promotion of state-level coastal zone manage-,
13
ment through the Office of Coastal Zone Management.
The Environmental Protection Agency has a secondary

role in fisheries and wildlife protection through theNational,

P.ollution,Discharge Elimination System Program and by virtue of

its advisory and consulting role in the spoil disposal and wet-

lands permit programs. Finally, the Corps of Engineers, as thel

perfnitting authority for wetlands alterations and dredged spoil

disposal, has significant functions related to fisheries and

wildlife.@

Within the State of Maryland, primary jurisdiction
A
ti for fisheries and wildlife is in the.De
partmentof Natural
Resources. The Department's Natural Resources Police Force

coordinates with the federal agencies the enforcement of federal
and state game laws. The names of the Department's subagencies

are descriptive of their program responsibilities: for fish and

wildlife resources: the Tidewater Fisheries Division and Coastal,

Resources Division, both within the Tidewater Administration, the

Wildlife Administration, and the Wetlands Division of the Water
14.
Resources Administration. Fisheries'and wildlife resources

where the State of Maryland has proprietary interest are,

V 07 managed by-the Forest or Parks Services-Shellfish sanitation is

a eel ...addressed by the Department of Health and Mental Hygiene..

In Virginia the Marine Resources Commission has
of responsibility for fin and shellfish and for the en virons

which they inhabit. The Commission oversees the adminis-
tration of@the state's wetlands laws.and.regulat.es.the dred-
15
lary ging of subaqueous areas. The Commission is assisted by

al.31' the Virginia Institute of Marine Sciences, which conducts
t of, studies of the r esource, its environment and -the effects of

po issione-
d et., llutants on the resource. The State Health Comm

a thd also has responsibility for shellfish: he may inspect shellfish
!t

wherever they are harvested within the State, close shellfish@

beds, or restrai
n any entity from selling, buying or marketing

shellfish if he finds that the shellfish are unfit for
market. 16 The Department of Conservation and Economic@

Development and the Commission of Outdoor Recreation each

have an important impact in this area through their respective
management and planning functions related to State-owned landsl
Recreation--This area Iincludes a variety of diverse@

concerns such as facilities on boats, provision of public

access to the Chesapeake,-, recreational traffic management,

hunting.and fishing,.and regional problems related to marinas

and private harbors..
At the federal level the-CoasVGuard.0,in consultationj

with the Environmental Protection Agency is charged with

responsibility for establishing and enforcing regulations
17
for marine sanitation-devices for boats. The Coast Guard

also has responsibility for boating'safety and for navi-

9
7ational aids. The National Park Service and the Bureau of

Fish and Wildlife, which maintain parks and refuges,.re-

spectively have control over public access to the Chesapeake

over lands which they manage. The.Fish and Wildlife Service

has responsibility, as indicated previously, to enforce game

laws for migratory species. The Corps of Engineers may have
a developmental or regulatory role in.relation to the constructi

and maintenance of recreational boating facilities.

Maryland has exercised some degree of responsibility

in all these areas. Of least regulatory.concern has been

the overboard disposal of human waste from boats. Through

the water quality certification procedure and the wetland

regulatory process the state has promoted.the use ofAdequate
onshore sanitary facilities and pumpout stations at marinas.
et

S, The Maryland Department of Natural Resources is the agency of

State C
government with.responsibility for providing publi

This is accomplished, first, by-the Parks
access to the Bay.

and Forest 'Services which provide: access, where'appropriate,
as over State lands, or, second, by-the Waterway Improvement

Division of the Tidewater Administration, which.provides ser-

i n vices and improvements to promote recreational boating on- the

Chesapeake Bay. The Waterway Improvement Division*, in cooper-

.ation with the Marine Police, supplements federal efforts to

provide navigational aids. and also marks channels,.,clears
18*
obstructions, and undertakes some dredging- The Marine

Police enforce boat safety laws and render assistance where

needed. The Counties and municipalities often provide
facili ks f public o the Bay and local
ties.or par or access t

zoning has a determinative impact on development of marinas

!no and private harbors..

The State of Virginia has a variety of.programs
IV
affecting recreation. Through its State Water Control Board,
j@,

%6
8

JIY

the state has promulgated rules and regulations for controllin".
the discharge of sewageIfrom boats. 19 The Department, Iof Con-*
servation and Economic-Development, Division of Parks, is a
primary provider of public access to the Chesapeake.Bay in

Virginia. The Commission on Outdoor Recreation has overall

.-planning responsibility for outdoor recreational facilities...

The Game and Inland Fisheries Commissions is in charge of
issuing licenses for sport fisheries. Marinas and private

harbors are greatly affected by the'actions of-the Marine

Resource Commission in enforcing the State Wetlands Act., Just

as in Maryland, local zoning and harbor regulations may have

a significant effect on development of marinas and private

harbors.

Economics, Planning and Major Facility1Sittng_._.

..This topic includes the location of Bay-related commercial

and industrial activities; the allocation of areas for defined

uses;and the long-term projection of trends and opportunities,

None.of the federal agencies seek directly to impose

afederal plan on the Chesapeake Bay. Nevertheless, the fed-

e
1 p the Bay is so pervasive--indeed, overwhelming
ra resence.on

in certain sectors--that the federal government represents an

important,planning entity on the Bay. Congress has asked the'
Corps of Engi.neers-to make a comprehensive study of.the
j
Chesapeake Bay and th ere is currently a congressionally author,

ized EPJ',. study of the Bay. These studies are in addition,to

the@ongoing Corps of Engineers planning program to identify

appropriate.waterw,ay improvement projects. The Coastal Zone

Management Program, discussed previously, does not seekto.-

impose a federal plan, but does establish federal standards

for state plans. While an effort has been made to coordinate

federal activities under the federal permit programs, there.

is less attention to@coord ating federal planning'activitie
in s

and, in fact, these activities are largely independent efforts.

y
In Mar land the State Department of Planning provides

certain overview functions for the northern part-of the
ve Chesapeake Bay. The Department -of State Planning's functions
have been devised,to not conflict or impinge upon local zoning
20
authority. The Department engages in studies and reviews

designed to provide an understanding of future trends. The

Department also seeks to coordinate the activities of federal,-
@ine& state and local entities. The Department plays an active
Iteg,'. role pursuant to the National Enviro=ental Policy Act by
se coordinating the various state and local submissions which
form a part of the NEPA"review.-,Other resource-oriented

planning in Maryland is fragmented among several agencies
9.

's an,,-,, including the Coastal Resources Division of.the Tidewater

Administration the planning sections of the Water Resources
T,
Administration and the water and sewer programs of the Depart-

or
31h ment of Health and Mental Hygiene Environmental Administration.
.to

The Maryland Department of Economic Development has primarily
21
served to support Maryland's search for new industry,
The basic thrust of the,Department.is.to develop studies
which identify economic opportunities andresources in
Maryland which can be utilized by outside industry. The
Maryland Port Administration, as discussed previously,

serves as a catalyst and facilitator of.Maryland's port

needs. In that capacity long range studies and planning

are undertaken,,efforts which can have a substantial impact
on the location of major port facilities. 22 The Maryland

Department.of Natural Resources is responsible for the

Maryland Power Plant Siting program, which.is.authorized

to acqu re power plant sites and to review sites selected
23
by electric utilities. This program was enacted to

facilitate the selection of these sites,, a proces&which had

sometimes been. hampered by local opposition. Another major

state program affecting major facilities decisions is the

Maryland Coastal Facilities Review Act, providing a par-

ticularly comprehensivereview mechanism for.the siting and

construction of energy-related facilities including refiner-
ies, pipelines and LNG terminals. 24 Even with thesestate-
level planning and regulatory programs, basic land use decisicl

in Maryland remain the province of the counties and munici-

palities.

In Virginia mechanisms for promoting economic

activity in the Bay..regions of the State are not as!
L
formalized as in Maryland. A principal proponentof economic

activity is the Virginia Port Authorit which.has been.
@y

discussed previously. -VPA often4cts in support of the

local j isdictions, which have their own programs to
ur

'Other types of new businesses are.
-encourage new industry.

Virginia
promoted by the Division of Industrial Development.

has not enacted a State prog.ram for major fac-ilities iti
s ng,
comparable to Maryland's Power Plant siting law. The Council.

on the Environment has assumed responsibility for the state's

Coastal Resources Management efforts and provides an inter-

agency liaison.on projects which.pose pos,sible,,environmental

impacts.

Research and Information--This area of'
concern

includes means for identifying informational needs; the

coordination.of research efforts; and the communication of

research results to-users.

At the federal level, little coordination exists

to.effectively utilize the massive amount-. of research that

is generated,pursuant--to.federal.programs. . While efforts...

have been made to coordinate federal activities related to

permit programs there has been less interest and inclination
L
to make similar attempts in the scientific area. Congress

has supported thistrend by authorizing various federal

to conduct Bay studies. Within the last decade

both the Corps of Engineers and the Environmental Protec-

.-tion Agency have been charged with carrying out substantial

studies.of the Chesapeake Bay. All the federal agencies

which have been mentioned in this overview participate to.

some degree in funding research on the Chesapeake Bay. With.

out effective coordinatio n, it is inevitable that there is

overlap and.duplication."

Major state and private. research ins.titutions

carrying out Bay-related research include the Virginia

Institute for Marine Studies, the University of Maryland,

the Smithsonian Institution,.Johns Hopkins.University and
numerous private consulting firms. Also many state agencies

conduct extensive research programs in their respective areas

Water Quality.7-This area of concern includes

effluent and receiving water standards; stormwater manage-
ment and sediment control and other nonpointsource water

quality problems.
Since the passage of the Federal Water Pollution

Control Act Amendments in 1972 the Environmental Protection
Agency has been the Ie\ad agency at the-federal level in
insuring water quality. Under the National Pollution Dis-

charge Elimination System,'EPA has established pollution

control and has disbursed funds,for the construction of

sewage treatment plants.
EPA comments upon Corps permit applications to assurf

ction of water quality. When periodic or accidental
the prote

water quality incidents, such as oil spills, occur, EPA works

with the Coast Guard to enforce regulations in this area.

In Maryland the Department of Natural Resources has
4ith-' been delegated responsibility for administering the federal
ischarge permits program. The State Department
d of Health

and Mental Hygiene, acting through its Environmental He
alth

Administration,shares responsibilities'for determining, whether

shellfish beds are safe and for regulating toxic substances.
All
It has regulatory control over county comprehensive sewer and

water plans. The Environemntal Health Administration directs

the wastewater treatment works program for the state and-is
es_@,
.areas. responsible for approving the construction of treatment plants
and operating certain of these facilities. Another important

@c ing wat manage-
omponent.in insurf er quality is proper stormwater
ef -ment and sediment.control. While the Maryland Department of
Natural Resources has oversight responsibility in thisarea,

the primary regulatory focus is upon local aovernments to
.on
on enforce adequate sediment control plans for active construction

sites...

In Virginia, the State Water Control Board has
Dis-
the regulatory..responsibility for setting water quality
0
26
standards and regulations and for enforcing the same.
f
Virginia, like Maryland, has a water quality program acceptable

to.the federal government and has been delegated N.P.DiE.S
as Sur
authority. The Virginia Tnstitute of Marine Sciences provides

extensive scientific backup and analysis for the water qualit..
program. The Water Control Board shares responsibility with
.the State Department of Health for the construction, plannirig,
operation and monitoring of sewage treatment facilities. 27

Sediment control in Virginia is a mixture of state andlocal

responsibility. A State plan is developed which is adminis-,

tered at the local level. If localities choose not to follow

the state plan, legal action can be initiated to, force com-

pliance.
The following sect-16-ons will highlight the way in

which existing institutions have responded to problems of
interstate concern in the past, and how this might be further'

adapted for greater coordination across state lines.

1.3 Past improvements in the interstate management
capabilities of existing agencies.

In.. recent years a variety of a,gencies and institutic@

have been involved in cooperative efforts in response to
Bay-related problem Is which concerned more than one state. 28

In interviews with agency personnel conducted under the
sponsorship of the Chesapeake Bay Legislative Advisory
29
Commission, a number of such instances were discussed

which reveal@the scope of past efforts. For example, as

water. consumption in the greater Washington, D.C. area

approached the limits of available supplies in the Potomac
River, it became necessary for the two states and the Distric'

of'Columbia to negotiate a "Potomac River Low Flow Allocation

Agreement" to assure an equitable distribution of water.
@_ng.: (In these negotiations...the District.of Columbia was repre-

sented by the U.S. Army Corps of Engineers, which is charged
with the maintenance of thecity's water supply). This
resolution avoided the need to resort to.litigation for an
1w, I apportionment.
Oil Spill emergencies have sometimes resulted in

cooperative action. In 1978, for example, Maryland volunteered

to make its oil containment and cleanup resources available to

Virginia on a contractual basis to assis.t with an oil spill near
ler':: Chesapeake Beach, Virginia. More recentl
y, in October, 1979,

the State of Maryland provided assistance to.the Coast Guard

on a contractual basis in the containment of a barge spill

In another instance Virginia officials
in.the Potomac River.

sued- to recoup the costs of cleaning tip An oil. spill from a
i-Vo
Steuart Petroleum Company barge. The State of Maryland, among

others, submitted an amicus brief in that case supporting

the right of the State of Virginia to conduct an oil spill
cleanup program independent of that maintained by the federal

government.
A more permanent example of past interstate cooperation-

is the Potomac River Compact of 1958 creating the Potomac

River Fisheries Commission. The waters of the Potomac,are
nac
the only waters which are shared by the fishermen of both
ilric@
16

states. The Commission has been authorized to regulate this
joint fishery and in doing so it frequently exchanges t.ech-

nical information.with thefisheries agencies in each state.

Similarly, both states have joined with 13 other states in

@the Atlantic States.Marine Fisheries Commission, which receivi

congressional approval in 1942. This Commission is oriented
principally toward problems of migratory, marinespecies and

has provided a'-forum for discussion among the member states

of issues confronting their coastal fisheries.

Another-ongoing activity is the interaction required

under federal law when a discharge@authorized by one state

may affect water quality in another state. The principal

effect.of this requirement has been to require Virginia to

..notify the Maryland Water Resources Administration when

considering the issuance.of discharge permits into the

-Virginia tributaries of the Potomac.River.. Also, because...
the entire Potomac River is within Maryland's regulatory

jurisdiction, Maryland must issue.any discharge permit for

Virginia sources'discharging into the Potomac. The adminis-

tration.of this program.,in each state under the National

Pollution Discharge Elimination System has thus provided a

formalized,,albeit limited, interaction in the management of

pollution in a, major waterbody of the Chesapeake Bay drainage

basin. A interjurisdictional cooperation occurred in the
devel.opment of Section 208 areawide water quality management-

a
r)lans for-the Washington metropolitan are on both sides of-the
Potomac throughthe exchange of drafts and coMMents,

In the area of research, the organization of the Chesa-

AW
peake Research Consortium has enabled the principal research
institutions in the Bay region to share their' complementary

ve
resources in undertaking a wide range of studies. The

Virginia Institute of Marine Science, the Johns Hopkins
University,. the University of Maryland and the Smithsonian
Y, Institution as members of CRC, have benefitte.d not only through

direct participation in joint scientific investigations, but
have also obtained indirect benefits. from the open communication

amoniz scientists fostered by this association..

A related joint research effort is being conducted by

the Virginia Institute of Marine Science and the Maryland
Geological Survey, which have undertaken separate but
complementary research programs for the purpose of collecting.

baseline informationon the sediments, chemicals, and benthic.

organisms of the Chesapeake Bay bottom. These two research
programs were funded jointly by federal grants and the imple-
mentation of this research effort has resulted in a high

level of cooperation and coordination, including exchanges of

A:
equipment when necessary. To the extent that one agency may
have special@expertise in 'carrying.out certaintypes of analy-

ses on bottom samples, it is assigned these responsibilities

for the entire Chesapeake Bay stuiy. As a result, the entire
U
,it
study is being con6-icted in a more effective manner than either

state could have achieved acting alone.

These interactions are by no means exhaustive o@c

number of times Maryland.and Virginia have cooperated on.

problems of mutual concern. However, they are.illustrative'.

of the various. waysin which the two states can interactand.2.'

suggest the possibility of extending these types of efforts

into new fields.

Three vehicles havebeen (and continue to be) availa*-

for the evaluation of the adequacy of past efforts to solve

problems of interstate concern. Bi-state conferences have

been held in recent years to provide a forum for an exchange

of views and information. While these conferences have been

widely attended and well publicized, the conference format

inherently has. limited utility in producing concrete changes

in legislation or administrative regulations. The, lack of A
scheduled series of follow-up activities-to produce the detail

work needed to act upon insights gleaned at the conference has

limited the conference impact to an educational one. The
interaction of personnel from both states which has--occurred

at conferences is an important benefit., yet is difficult to

appraise in its actual contribution to improved management.

The impermanence of the conference format may be
remedied to some extent by,the recent initiatives of the legist

lative.and executive branches of the two states. The Chesapea
Bay Legislative Advisory Commission, although only programmed

,at present for a two year period of investigation, is not

subject to the one-time-only constraints of previous confer-

... ences. Such,a Commission could be empaneled as a permanent

aid to the legislatures,. meeting.in the months between. sessions,

..to investigate problems of baywide.interest and to work out-
d
sp The Commission-
ecific recommendations for concerted action

S
in an advantageous position to evaluate the views and needs
is

of the Chesapeake Bay citizenry and to.,critique objectively the
llabl
performance of existing agency programs.

On August 22, 1979, the Governors of Virginia and

Maryland formalized an agreement to coordinate research
ige
planning and management activities affecting the Bay through

a "Bi-State Working Committee" of agency representatives from

both states. The committee is responsible for reporting

sa ea e Bay.issues of mutual
-annually onmajor coastal, and.Che p k
f
concern with recommendations for bi-state action. While it is.
itail..
.too early to appraise the. effectiveness of this approach, it.
e as,
has the potential for sustaining an effort far beyond the

limits of a conference-type of interaction..

As can be n
seen from this discussion, existi,g insti"

tutions have not been totally intractible in the face of

growing interest in favor of coordinated management.. To be

sure,. interstate interaction has generally occurred in iso-
gl'@
lated instances, often in.response to unusual circumstances
asape
;Q
or problems. The recent efforts of the: legislature and

executive agencies have not had sufficient time to effect

any significantchanges and any attempts to appraise those

efforts would be premature. Nonetheless, these examples

illustrate the general.pace and scope of past approaches to

problems of mutual concern by existing agencies and insti

tutions.

1.4 Potential for improvements of existing institutions
for baywide problems.

Existing institutions in Maryland and Virginia can

be used to achieve more coordinated and effective baywide

management. in two general ways: first, each state. can sepa-

rately adopt,uniform laws and regulations in those areas in

which the difference in jurisdictions does not justify a

difference in management; and,second, the two states can

develop joint, reciprocal programs on an ad hoc basis to

provide an exchange of.benefits in those areas in which

each state has unique advantages or abilities. These two

approaches... which are illustrated below, are.nonetheless
dependent upon some means of assuring open and frequent

Communication between the two states. These are the types

of changes which can be accomplished without creating a new
institution, assuming.that a consensus is reached between the.
two states through the liaison efforts of the executive and

legislative branches of the two states.

In the interviews of agency personnel conducted

forthe Commission, one opinion which was,expfessed many

wa
times s that activities in each state which affect Chesapeake

resources would be best managed through the application of

uniform laws in each state governing similar resources or
activities. This observation was qualified with the comment*

that there are, of course, certain instances in which the

physical or other differences between the states warrant a

disparity of treatment. However, the establishment of uniform

r com-
regulations was seen.as a,means ofeliminating the need fo

bining governmental functions for the respective states in a

joint or regional agency.. For example, a Maryland Department

of Health and Mental Hygiene representative noted that uni-

form bacteriological standards for shellfish waters established

by the federal Food and Drug Administration eliminated the need

for-a regional or.bi-state approach to determinations'whether

to.close or open shellfish beds. Representatives of this

department also commented that the question of pumpout

facilities at marinas for on-board marine. sanitation devices

might best be addressed by uniform, Bay-wide regulations.

The Maryland Natural Resources Police commented that many of

the difficulties presented in the enforcement of fisheries
th
laws result from regulatory differences in Maryland, Virginia

and the Potomac River, especially in the areas near the

boundaries. Perhaps these officers, more than anyone el
se,

'22

are afforded the most concrete day to day illustration of

thearbitrariness of the differing fishery restrictions on

either side of t@h Maryland-Virginia border., Clearly, eu-.

forcement would.be a far easier task if biologists and

fisheri es managersin the two states could reach a consensus

on the proper fisheries regulations necessary for sound
management- Greater uniformity, where appropriate, would
also promote a more'favorable public perception of the.

rationality of fisheries management.

The most direct form of.pollution control on the
Chesape@ke Bay is through the National Pollution Discharge

Elimination Sys tem established under federal law for imple-
mentation by qualifying states (including both Maryland and.

Virginia) subject to extensive federal regulations and guide-
lines which assure a large measure of uniformity from state

to state. Nonetheless, agency representatives have noted

differing interpr6tations of federal regulations so as to

create differences in the regulation of discharges from

seafood packing houses, poultry processing plants, and munici-

pal waste water treatment plants(as toallowable chlorine

residuals). One interviewee suggested that Maryland's strict

standards for seafood packing houses has resulted in more

business for Virginia's packing houses. In these and other

areas uniformity of approach restores the equitable treatment

of similar businesses which is often compromised in the regu-

lati on of a single resource which occupies more than one

jurisdiction.

Other areas offer advantages through joint or comple-

mentary action by the two states.: Again, these possibilities

would be limited.to 'those actions which can be carried out

through agreements between the states without the necessity

of creating a new interstate institution. For example, the

growing need for specialized facilities for the handling and
disposal ofhazardous wastes has prompted the suggestion that--

each state might agree to..store certain types of wastes from

both states, 'rather than have each state handle every type

of hazardous wastes.

,e
Another area of potential mutual advantage would be.,

a joint effort in the marketing and.promotion of Chesapeake

-venture could be
Bay seafood products. Such a cooperative
Its
supported by contributions from each state (or from businesses

in each state) with the expectation a concerted marketing

0
scheme would yield greater demand, higher prices and more

stable markets to the benefit of all Chesapeake Bay watermen
kfflLci
eafood processors and vendors than could be obtained
and s

by the independent efforts of each'state.
2trict,
One dimension of.,fisheries management, the management

of the oyster industry,has been cited as a good candidate
r
for joint management., if not uniform regulation. The Virginia
atment',
oyster-growing areas are particularly well-adaptE@d for

reproduction an,,,:!. are excellent sources of seed oysters; yet

,IN'

Virginia waters do not excel as oyster growing areas.

Maryland waters, on the other hand, have proved excellent

as growing areas yet are far less productive of oyster

seed. These complementary characteristics suggest the

need for a joint management program which capitalizes upon

the special advantages in each state and creates an inte-

grated Chesapeake Bay oyster industry. To a great extent

this goal can be advanced1by modifying the oyster laws in

each state to encourage private e'nterpreneurs to take advan-

tage of these complementary characteristics. Laws which

prevent oyster seed and oystermen from crossing state bounda,-j

must be critically reexamined by each legislature to determi-A

whether the current isolationism is in the best interest of

the states.

Finally, a area offering mutual. advantages is in

research dimcted at problems present throughout the ChesapeA

Bay. The conduct of the Bay bottom.survey by the Maryland

Geological Service and the Virginia Institute of Marine Sciel

is an excellent example of benefits which can be obtained

through cooperation. In the private sector the Chesapeake
Research Consortium organizedby private and state supported

educational and research institutions in bothstates has.beerl
an effective medium for bringing together the special abiliti

and facilities of these various institutions to carry out

research projects which were beyond the capability of any

single institution.

1'. 5 Simanary
t
The incremental adaption of existing governmental

institutions to enable them to respond.to problems of

interjurisdictional concern has been a-slow and fragmented,
)on
process. Until recently there existed no body to oversee

this process or to serve as a liaison between the two

states. Even now the bi-state working committee of,agency

epresentatives exists, solely at the pleasure of the

Governors. The legislative advisory commission itself has
,,h
an uncertain tenure beyond the 1980 session unless the
3Lda,r
General Assemblies take action to continue its existence.

rmlt
Sd The lack of permanent liaison between.the two governments
'st0
compounds the uncertainty of the future adequacy of continued,

ad hoc improvements in interstate cooperation in Bay manage
In
ment. Nonetheless, in terms of implementation this option
zj s ap e'-
would be easiest to achieve, since existing agencies and
yind'., Ithorities would continue as presently constituted.
a
ne Sciet

ake
llrted:@A
s be@p
L abili6

any

FOOTNOTES' SECTION 1.0

1. The coastal zone program documentation prepared

by each state includes a more detailed summary of authorities

in each state. The Environmental Law Institute has recently
produced the "Environmental Quality.Management Study: Agency

Ith the Environ
and Legal Authorities. Survey" under contract r4n
mental Protection Agency. This 1000+ page'study is somewhat@
difficult to use for lack of a table of contents, index or

page numbers.

2. 33-U.S.C. 1251-1376

3. 33 U.S.C. 1344

4. Md. Ann. Code, Art., Sections 6-201 through

6-401.

5. Md. Ann. Code, Hat. Res. Art., Title 9.

Id., Section 8-1401.

7. Id., Section 8-707.

8. Va. Code Sections 62.1-44.7' et'seq.

9. Va. Code Sections 62.1-13.1 et seq.

10. Va. Code Sections 62.1-133.

11. 16 U.S.C. 742(l) et seq.

12. Id.; see a Iso Reorganization Plan No. 4, effec-

tive October,3, 1970.

13. 16 U.S.C. 1451 et seq.

14. See generally, Md. Ann. Code, Nat.. Res. Art.

15. Va. Code Section 62.1-13.1.

16. Va. Code Section 28.1-176 et seq.

17. 33 U.S.C. 1322

18. Md. Ann. Code, Nat. Res. Art., Section 8-701

et seq.

19. Va. Code 62.1--44.3.

20. Md. Ann. Code Art. 88C Section 1et seq.

21. Md. Ann. Code, Art. 41, Section 257E.

22. See also, Md. Deepwater Port Act, Md. Ann.

Code, Nat. Res. Art. �3-601.

23. Md. Ann. Code, Nat. :Res. Art., Section 3-301

et seq.

24. Id., Section 6-501 et seq.

25. Id., Section 8-1401 et seq.

26. Va. Code Section 62.1-44.2 to 62.1-44.34:7.

27. Va. Code Section 62.1-44.19.

28. For a review of Maryland-Virginia interaction

in earlier years, see Eveleth, D., Historical Account of

Maryland's and Virginia's Relationship in Governing the

Chesapeake Bay, prepared for the Chespeake Bay Legislative
Advisory Commission, June 1979.

29. See Kinsey, Analysis of Virginia and Maryland:

Interstate Activities, Part I, The Virginia Agencies, prepared

for the Chesapeake Bay Legislative Advisory Commission, August

1979; and Friedlander, Part II: The Maryland Agencies,

September 1979.

INTERSTATE COMKISSIONS

2.1 Introduction

The United States Constitution limits the-extent to

which two or more-states may join in contracts, agreements,
compacts and other forms of alliances. 1 These limitations are
discussed more fully in the Appendix to this re.port,-along
with the legal consequences'of entering into a compact.

Although the law in this area is not well settled,,some
generalizations may be made. A number of interstate agree--
ments may be valid without the consent of Congress: these

would include agreements to consult, coordinate, exchange

information or to adopt uniform laws in a given area. On

the other hand, an agreement among two or more states to

consolidate their regulatory powers over ndvigablewaters in
a single interstate agency may well be invalid without
congressional consent. Thus any regulatory Cas opposed to
advisory) interstate agency should have the consent of Congres-11

to be assured of constitutional validity. An interstate
commission can take any form selected by the participating

states, assuming, of course, that Congress would not find it

objectionable.

Although there is a limitless variety of interstate

institutions which could be formed-to deal,with.Chesapeake.,

Bay problems, certain types of categories of interstate com-

@'w
X mlssions have been recognized. As,used in.this,study.the term

interstate commission will be used to refer to a compact agency
7gk
approved by Congress-in.which.only the affected states parti-

cipate.,- This is,to be distinguished from the category of fed-
4
41,
eral-interstate commissions in which the federal government

participates. The degree of federal participation and federal

submission to.the authority of such..a commission would be

specified in the compact and in the ratifying legislation passed

by Congress.

Strictly speaking, a commission formed under the terms

of Title II of the Water Resources Planning Act of 1965, Section

309 of the Coastal Zone Management Act of 1972 or Section 208

of the Federal Water Pollution Control Act Amendments of 1972

would be within the category of federal-interstate commissions.

Nonetheless, because of the unique characteristics of each of

these subcategories they are treated in separate sections of

this report.

The section which-follows will set out the basic charac-

teristics of the simple interstate compact commission.

2.2 Creating an Interstate Commission

An interstate commission is created in two steps. First,

K71

legislation must be passed by each state authorizing its par-
ticipation in a specific compact. Second, if constitutionally

required, Congress must give its consent-to the compact either

by a resolution or by passage of ratifying legislation.

As discussed in the Appendix, no,prior congressional

consent is necessary to allow the states to enter into negotia

tionslundertaken in.contemplation of making a compact.,

2.3 Authority Relationships.

Unlike those categories of compacts to which Congress-

has given its prior consent, there are no specific*constraints

..upon the allocations of authority within an interstate coMMIS.

sion or upon the authority of the commission over the signator
2
states. Obviously, these decisions will be the product of the

bargaining which will precede a specific compact, yet a review

of the compacts reached in other situations will illustrate

the range of choices.

In general, states have been entitled to equal numbers

of representatives on an interstate commission. An individual

state delegation comprised of as little As three or as many
as five commissioners is common. For example, the Interstate,
Sanitation Commission has five commissioners*from each of the

three signatory states in the New York H arbor Compact: New
York, New Jersey, and Connecticut. 3 Similarly, the signatorie

~@~-~-~qe Water Pollution Control Compact
of the Ne~-~.~;~- ~q-~,~;~z
each to serve on the commission
al, appoint
~.eith~@.~ created b~qT
S t ~8qi~-~q0~1~q:~- the representatives them-
While the New York pact allows
selves of~-~q:~=~7~-
naming individuals as representa
~II o~qt the states
~qz~a~;~,~q:~-~_ requires the following- "For each
tives the `~4q56 ~0qE~v~,
~4q=~0qe Commission a member representing
,state the
a member representing the state
the state ~8qh
water ~8qp~qo~ql~,~_~-~_~q:~q:~@~-~: ~q- -(if such exists) and, except
legislation decides that the
traint~! where a ~qs
will be otherwise served, a member.
~qF~qM~S- ~ best, inte~-~_~=~-~qS~q-__~r~- ~-~z
a member representing indus-
~1p~p~~o. represent-~'--
trial int~qe~qr~e~q-~z~-~q-~z ~-~q=~2q@e~qr representing an agency acting.
6
~a~qv~i for f ishe~qr~-~-~:~=~q-~z The Great Lakes Basin, Compact.,

~t~-~qo no less than three but no more
rate entitles e~=~-

~'~qs
than five ~4qM ~6q=~qie Great Lakes Bas~2qin~Commission,
but each -s only three votes altogether. 7
S
numbers and qualifications for
~l~i~qr~qi d The
ny each state -~q:z~qz~qs~qz~8qher with a compact's rules on
r~qstat~qe~@~'~: ~q-~qz~0q- ~qt~q.~q.he mechanism.for wielding the
voting,

ss ion.
th~~qi~ power of
~4q:~8q_~q'-~08qracteristically contain very

---.-line under what circumstances th
to~2qr~qi specific e

action of a "Commission may be considered "binding" on its mez.
ber states. Typically, the vote of aninterstate compact
commission will be considered binding only if the following
tvo conditions are met: 1) a quorum of the commissioners

is usually defined as a majority of the commissioners) is pres

ent for the vote; and.2) if action is being directed towarda

particular signatory state, a majority of that state's commis.

sioners must concur in the decision. These criteria for a

binding action-ha ve been adopte d by the New England Interstate
Water Pollution Control Commission 8 and the Interstate Commis
sion on the Potomac River Basin.9 Other compacts have incluk

even more stringent requirements and stipulate that a majority

of members from each state must vote in -favor of a particular
commission action forit to be considered binding. 10

The states have great flexibility in determining the amoul

of authority which can be conferred upon an interstate commis,

sion. A commission may be empowered only to recommend water

quality standards,. or it may be authorized to set and enforce

standards of pollution control for the areas within its jurl's-

diction. Some examples are discussed in the section below.

The interstate commission, therefore, may be authorized,-,

to advise and make recommendations, or it may,be delegated any

of the powers exercised by the signatory states. The authorit

contained in a properly adopted and ratified compact wi 11

33.

supercede any inconsistent law or action of one.of the,signatory
states., yet almost any limitations on the authority of a com-

mission or the manner in which it is exercised can be pre-

Scribed in the compact. Note also:that congressional rati-

faction of a compact may have the effect of preempting prior

inconsistentIfederal laws. (See Appendix).

2.4 Experience With Interstate CoMmissions

Simple interstate compact agencies have been created

-Du
for water pollution abatement . rposes since 1935, when the

states of New York, New Jersey, and Connecticut formed the
New York.Harbor (Tri-State) Interstate Sanitation Compact.

There.are now more than a dozen interstate agencies and com-

missions created by compact and charged with studying, advising,

and, in some instances, regulating interstate Water resource
Ur
problems. Commentators generally have found that although

the attributes of interstate compacts would appear to make

them well suited to water pollution control and water resource

management, in practical application the agencies created by

compact have had only limited success in achieving their
12
objectives.
'ed
There are several factors characteristic of the com-

pact process that serve to limit the effectiveness of inter-

state commissions...A disadvantage of planning a regional

'program noted by one commentator is the lack of regional
@awareness on the part of-the p Iubli @13 Th-
c is is attributable

to several factors, including many.persons' reluctance to

develop a sense of support or affinity.for a regional govern-I

mental unit. Another factor is thegre at range of interest s

present in a large area, such as a river basin, which can

lead to difficulties in trying to establish a management
14
system thathas broad political support.

Another observer has noted that traditionally there.

has been little integration of. the compact agencies into the
"administrative fabric"@of state government. 15 Unless there

is a challenge to.legislative authority, most state legis-

consider the interstate commission to be beyond their_

range of,authority and seldom provide adequate liaison and
coordination mechanisms. 16 Thestate executive agencies general
try to be more aware of the commissions' functions because

compacts usually provide that the governor.has authority to
appoint his state's commissioners, but few compacts have

provided mechanisms for.ongoing communications and coordin-

ation between the states and the interstate agencies.

Another problem faced in attempting to form a regional

'Yovernmental unit is obtaining sufficient power from the com-

pacting states to implemen,.t an effective program. Legislative

.reluctance to relinquish auth,@rity to an agency which can be

.35

controlled by representatives of other states often results,
17
in grants of limited authority or voting requirements which

may inhibit effective action.

Formation of an interstate agency by compact has often.been

a time-consuming process. For the water pollution control com-

pacts of the. past the average leng th of time necessary to.draft
and ratify the agreement has,been five years@' although individual

compacts have varied greatly from this average. The-Delaware
20
River Basin Compact (a federal-interstate compact) became effec-

tive only two,years after the preliminary study was completed.

In contrast, the New England Interstate Water Pollution Control_
21
compact required eleven years.

In the past, once a compact has been ratified by the

member states, the amount of success the interstate commission

has had in improving water quality and managing the'body of

water has been.dependent upon several factors, most notably

its authority to establish standards, its enforcement powers,.

and the amount of funding available to the commission and its

programs.

As noted above, the amount of authority existing commis-

sions have been given to set standards has varied greatly. As

kansas River Basin
of 1972,.several compacts, including the Ar
22 23 '6ontained
Compact and the Red River of the North Compact,

no reference to standard setting authority. The commissions

36.:-

established by these compacts were given authority onl
Y t 0 8
problems, make recommendations. to appropriate state- agencies
24
aiid,coordinate activities of the member states. As the
cou-missions were given no authority to plan or implement long
range programs,.most significant activity in the area-of wate
pollution control was left up to the, individual states.

OtheIr compacts, such as the one creating the Commission

on the Potomac River Basin, authorized the commission to re-

search and recommend minimum standards for waate treatment.
-25
to the signatory states. The commission, however, was not

given any.authority to compel a member state to enact the

recommendations or to enforce the standards.. At the other

end of,the spectrum, the Ohio River Valley- Water, Sanitation
.ty.
Compact (ORSANCO) and the Interstate Sanitation Compact incor
porated directly into the compact documents specif ic standardi
26
for sewage disc'harges.
t
Another problem for interstate commissions hag been

in the area of enforcement., An effective.administrative-
regulatory agency must be vested not only with the authority

to establish-rules, and standards but also w-1th.the power to
enforce, the actions..it has taken. States, however, have been
hesitant to relinquish the necessary enforcement powe t to
interstate agencies and commissions, and often have reserv-

.51

27
enforcement authority to the.i iate state agencies.
r appropr

Those interstate bodies that have been given enforcement
d-.
powers have been reluctant to use them; historically, en-Eorce-

has not been vigorous, with agencies relyl rily
ment ing prima

on education, persuasion, and the good faith of the member
2&
states to accomplish their objectives.
Absent sufficient

.ter,.;
enforcement powers to act independently of state initiatives,

a compact containing regulatory objectives becomes essentially

a contract to be enforced, if at all, in the courts.

The problems an interstate commission can face when it
lacks enforcement@authority is evidenced by the experience of
t the New England Commission. The responsibilities of the Com-
mission as provided in the compact consist of establishing

water use classifications and corresponding water qualit
y
29
criteria. The Commission was granted no authority to compel

a state to reclassify its waters for a particular use or to
S. 30
enforce.t.he standards it set. This resulted in lengthy

delays in reaching agreements on classifications for various

streams. In 1967, the Commission had been in existence for

twenty years. and the states.had still not agreed on classifi-

Cations for eleven streams in the areai One of these water-.

ways, the Connecticut River, was found in a 1964 study to

contain a bacteria count 315 times greater than the maximum
31
used by Connecticut in approved swimming sites.
ed.

2.5 Funding Sources

There.are no special sources of funding for which a.
new interstate commi ssion automatically qualifies. Generally
interstate compact agencies depend upon the states for the

appropriation of funds for operating expenses. Often the

exact sum to be contributed by each state is set'forth in

the terms of the compact or a formula for the equitable dis-

tribution of the fiscal burden is delineated. For example,-..",

the Tri-State Compact calls for the Interstate Sanitation..

Commission to submit budget recommendations to the Governors

of the three signatory states for approval; the actual percen-
tage of the budget that must be paid for by each state is
32
stated exactly. In the Red River of the North Compact, each

state must bear i ts proportionate share of expense of the Tri-

State Waters Commission based on the pro rata value to the
state of the activities of that commission.33 In the New

England Interstate Water Pollution Control Compact, the

actual dollar amounts that each state must contribute are
specif ied.34

Any compact may authorize the agency created to apply

for and accept grants from the federal government or from
private foundations. For example, a numberof interstate
compact agencies receive grants under Section 106 of the

Federal Water Pollution Control Act Amendments for various
35
water quality planning and abatement programs. While there are

numerous federal grants programs, whether a-compact agency.

..qualifies. ina given.instance will depend upon the functions

conferred upon it..

"ri

FOOTNOTES--S2CTION 2.0

1. U. S. Const. Art. 1 & 10.

2. See,F. Zimmerman..and...M.. Windell,' The.Law and

Use of Interstate C*ompacts.(1976).

3. New York Harbor (Tri-State) Interstate Sanita-

.@tion Compact Art. IVP 49 Stat. 932 (1935)-. [hereinafter

cited.as Interstate.'Sanitation Compact].

4. New England Interstate Water Pollution Control

Compact Art. 111, 61 Stat. 682 (1947). [hereinafter cited as

the New England Compact].

5. E].ach.Ccommissioner] shall be a resident voter

of the State.from which he is appointed. The Commissioners

shall be chosen in the manner and for the terms provided by

law of the State from which they shall be appointed ......

---Interstate Sanitation Compact Art. IV,.49 Stat. 932 (1935).

6. New England Compact Art. 111, .61 Stat. 682 (19147)

7. Great Lakes Basin Compact ARt. IV, 82 Stat. 414

(1968).

8. 11(N]o action of the commission imposing any

obligation on any signatory state... shall be binding unless

a majority of the members from such signatory state shall have
voted in favor thereof." New England Co' act Art. IV, 61.
MP

Stat. 682 (1947).

9. "[N]o action of the.Commission relating to polic@,
or stream classification or standards shall,be binding on any

oneof the signatory bodies unless at least two [of the three]

Commissioners,from such signatory body shall vote in favor
thereof.'.' Potomac Valley Conservancy District Compact Art. I,

54 Stat. 748 (1940), Amended 84,,Stat. 856 (1970). [hereinafter

cited as Potomac Valle' C
y ompact].

10. E.g., Interstate Sanitation Compact Art. V, 49

Stat. 932 (1935). 11[N]o action of the commission.shall. be
binding unless at least three of the [five] members from:each

State shall vote in favor thereof." -Bi-State Metropolitan

Development District Compact Art. V, 64 Sta't. 568 (1950)i

"[N]o.action of the Bi-State Agency shall be binding ... unless

a majority of the members from each state present shall vote

in favor thereof

Tahoe Regional Planning Compact Art. 111, 83 Stat.

360 (1969). "A majority vote of the members representing each

state shall be'required to take action with respect to any.

matter..'

11. E.g., Ohio River Valley Water Sanitation Compact.

4.9 Stat. 1490 (1936); Tennessee River Basin Water Pollution
Control Compact, 7 2@ Stat. 823 @1958); Klamath.River,Basin

Compact, 71 Stat. 497 (1957); Potomac Valley Conservancy

District Compact, 84 Stat. 856 (1970); New England Compact,
61 Stat.. 682 (1947); Arkansas River Basin Compact, 80 Stat.
1409 (1966).
Y

z,
S r".M.

12. Curlin, Interstate Water Pollution COMPac..
Paper Tiger or Effective Regulatory Device?" 2 Ecology L.Q,
333 (1972); Chambers, "Water- Pollution Control through Inter-

state Agreement," 1 University of California., Davis L. Rev.

43 (1969).

13. Chambers,'supra n. 12 at 44.

14. Id.

@15. Leach, "Interstate Authorities' in the United
States," 26 Law & Contemp. Prob. 666, 672 (1961).,

16. R. Leach and R. Sugg,' The Adminis'tration of

Interstate Compacts 47 (1959).

17. See,-P.g., Potomac Valley Compact, 84 Stat. 85,1,

(1970) and
text accompanying note 25,' 'infra.

18. See n. 10 and accompanying text,'supra.

19. Chambers, supra n. 12 at 45. The time period

is computed from the time negotiations begin until final

congressional consent is obtained. The author noted that the

average time span would be substantially higher if the date

at which the last.member ratified was taken as the closing

point, citing, for example, the Potomac Va lley Compact, to

which congre .ssional approIval was given in 1940-but which was

not ratified by Pennsylvania until 1945. Id.n. 11.

20. 75 Stat. 688 (1961).

21. Congress gave consent to begin formal negotia-

tions in 1936. 49 Stat. 1490 (1936); final consent to the'

ompact agreement was granted in 1947. 61 Stat. 682 (1947).

22. 80 Stat. 1409 (1966).

L O. 23. 52 Stat. 150 (1938).

24. Arkansas River Compact Art.IX (E), 80 Stat.

1409 (1966); Red River Compact, Art. VII, 52 Stat. 150

(1938).

25. Potomac Valley Compact rt. II (F), 84

Stat. 856 (1970).
26. Art. VI, 54 Stat. 752 (1940) and Art. VII

49 Stat. 932 (1935, respectivey.

27. Four compacts, the Great Lakes Basin Compact,

the New England Compact, the Potomac Valley Compact, and the

Red River of the North Compact, do not provide for any en-

forcement authority.
28. Hines, "Nor Any Drop to Drink: Public Regula-

tion of Water Quality," 52 la. L. Rev. 432, 451 (1966. For

example, the Ohio River Valley Water Sanitation Compact pro-

vided enforcement procedures consisting of a hearing; issuance

of an order and time schedule, and court enforcement of the

order if necessary, but through 1972 the commission had made

use of those powers only six times. In none of those instan-

ces was the commission forced to get court enforcement of

its order; each time it intervened at the request of the state

in which the polluter was located, and its mere intervention

was always sufficient to force compliance. See Cleary, The

- 44 -

ORSANCO,StorX, 117-122 (1967) for a history of these enforce.

ment actions.

29.. Art. V, 61 Stat.,682 (1947).

30. Under the compact, individual states have the

duty.to classify the waters within their jurisdiction and en.

force the requirements set by the Commission. The states!
classifications must be submitted to-thd CoTmIt ss ion for
approval. Any state to be affected may veto a proposed,class

ification if it feels the classification is insufficient to

insure acceptable water quality.

31. Chambers, su'pra n. 12 at 64.

32. Art. XIV1 49 Stat. 932 (1935)..

33. Art. X, 52 Stat. 150 (1938).

34. Art. VIII, 61 Stat. 682 (1947).

35. Oral communication with Mr. Don Brady, Office

of Water Planning and Standards, United States Environmental

Protections Agency, Washington D.C. (2 02-755-7003). Those
interstate commissions receiving 9106 grants included the

Delaware River Basin Commission, the.Interstate Commission

on the Potomac River Basin, the Interstate Sanitation Commis-

sion, the New England Interstate Water Pollution Control Com-
mission, the Ohio River Valley Water Sanitation Commis
sion,

and the Susquehanna River Basin Commission.

3.0 FEDERAL - INTERSTASTATE COMMITTEE

3.1 Introduction

As the name indicates, a Federal commission
includes the Federal government as a with the
interested states. The commissions are authorized by acts
of Congress pursuant to which participation of the Federal
authority may range from the role of the final approving
authority to that of equal partner passive observer
depending upon the terms of the particular involved. To
be strictly accurate, this category would Title II
commissions and possibly the agencies Section
208 of the FWPCAA and Section 309 of the However, this
section will treat the general category of federal-interstate
agencies unconfined by the statutory involved in
each of those subcategories. The most well known example of
this general type is probably the Delaware Basin Com-
mission. 1

3.2 Creation of a federal-interstate

The machanics of creating a federa interstate
compact agency are much the same as a simple
interstate agency. The legislature of participating

-46-

state must pass a law authorizing the state's participation
according to the terms.of the compact. Next, Congress must.
enact ratifying legislation. Certainly the most.difficult
aspect of creating a federal-interstate .agency would be the

negotiations preceding these legislative actions to reach

agreementupon the allocation of authority among the state

and federal participants and the de ree to which the federal,
9
government would be bound bythe decisions of the commission.

3.3 Authority Relationships

Federal-inter'state compact commissions can relate

toany issue involved with.interstate commerce in its broadesc.

sense.. Commissions concerned with water quality control va@T@
in power and responsibility from those that act solely in an

advisory,capacity, to.those with limited enforcement authoricT
and to,those with comprehensive..powers:for water quality man-

agement.
The unimplemented Potomac River Basin Compact-woul,d
be classified in the first category. It authorizes a commissif
to gather information on the pollution' of streams in the dons.. ef
district, promotes the adoption of uniform laws, rules,

and regulations for the abatement and control of pollution,
cooperates with other organizations in fact-finding and reseg

activities on the treatment.of sewage and industrial wastes,
recommends minimum standards for waste treatment. 2 The Ohio

River Valley Sanitation Compact falls in the' second category.
It has limited power to issue abatement orders against muni-
cipal or industrial olluters and can-go to court to pursue
p
k
3
compliance.

The authority of the Delaware River Basin Commission

extends to a.large number.of areas: pollution control) flood

protection, watershed management, recreation, hydroelectric

power, and the%substantial authority of water appropriation
h.
4
in accordance with the equitable allocation formula.

The membership.of federal-interstate compact commis-

sions varies according to the particular compact in question.

t Generally, the signatory states are.granted equal numbers of-

commissioners. For example, the Ohio River Valley,Sanitation

Commission and the Interstate Commission on the Potomac River

Basin consist of three commissioners from each state.(appointed

according to a procedure.which each state specifies), and three
an- -
5
commissioners from the United States government. The Delaware

s rn
River Basin-Commi sion.consists of the Cove ors of the signa-
L

tory states, ex officio, and one commissioner appointed by the
01 set President of the.United States.to represent the federal govern-
6
es,,', ment. The Susquehanna River Basin Compact stipulates an iden-
7
tical arrangement for commission membership.

ar There is a qualitative difference in the membership

schemes as well. The federal government became a signatory

medber of the Delaware and Susquehan,n*a pacts, thereby becoming

a full-fledged voting participant in the business of those two

8
commissions. In other compacts, federal members serve as
commissioners, without the federal government as a signatory
to the agreement creating an interstate commission, and, in

other cases, federal members serve in a liaison capacity and
9
donot have full voting privileges.
Federal-interstate compact commissions do not unifor@

allow federal commissioners to vote on all matters. The

Susquehanna and Delaware River Basin Commissions, which each

have one federa'-commissioner and one commissioner from each-

signatory-state, ermit full federal participation in voting.
p

The SRBC or DRBC may take action only if an absolute majority
of the commissioners concur in thedecision. However, the
apportionment of the budget of the commiSsion among the,

respective members must be approved unanimously.-

The Ohi o River Valley Sanitation Commission (ORSAN CO)
has different voting rules. 11 A quorum for the transaction of

business is defined as one or more commissioners from a

majority of the member states. A.commission order pre-

scribing a deadline for the eliminatio n or modification of

industrial or sewage.discha.rges by municipalities or corporatic

may be issued only if a majority of the commissioners from not

less than a majority of the signatory states vote in favor.,

and a majority of the commissioners from the affected state

agree as well.
'The.enabling legislation may distinguish between the

regulatory and proprietary roles of Federal and State.agencies
and projects. Obviously.thosecommissions without regulatory
authority willnot pose potential conflicts with established

state or federal roles. Even.where such powers are conferred,

.provisions in the organic statute.may exempt Federal or State

y
,,projects and ma allow for concurrent regulations., If no
specific conflict provisions ex-ist.it is.presumed that the

Iater enacted federal act would confer priority to Commission'
.authority over inconsistent federal laws.-(See-Appendix).

3.4 Experience with Fed6ral-Interstate Commissions

The leading example ofthis type of intergovern-
mental body is the Delaware.River Basin Commission, which

was formed.in.1961. The five voting members of the DRBC.
York,- New Jersey, Pennsylvania, Delaware (repre-_

sented by their 'respective Governors or their substitutes) and

the United States (represented by an appointee of the President).

Part of the impetus for this agreement came from an unusual

source: the Army.Corps of Engineers...The Corps began.a com-

prehensive study of water resource needs in the basin in 1955
'which culminated in a report five years later recommending to
Congress a half-billion dollar plan for the construction of 54

dams and reservoirs. It strongly urged the states to form a

.permanent interstate entity to assist in the financing of the
non-federal share of these projects.12

The compact provided for both regulatory and
prietary (developmental).powers to be exercised by the comX4.
sion The breadth of the se pow ers had been compared.tO thost
13
vested in the Tennessee Valley Authority.

The Commission has jurisdiction over almost all
water-related problems--water supply, pollution control.' flft
protection, watershed management, recreations, hydroelectric;"
-power and regulation of withdrawals and diversions--except fQ_
regulation of navigation. 14

The Justice Department and other federal agencies

objected to the origi.nal.terms of the agreement and sought

certain modifications in it prior to congressional approval.@,_,.

The basis.for these objections was that the Compact trans ferre,

substantial federal authority to.an agency in which the United
15
States had a minority*voice..

The final text provided that although the Commi s s ion,

is.charged.with making policy for all five signatory states

simultaneously by the adoption of a comprehensivewater re...@.
sources plan for the basin, the federal government is not

-provision of the comprehensive plan unless the
bound b y any
16
federal member has assented to it. in addition, "whenever

the President shall find and determine that the national inter-

est so requires, he may suspend, modify, or delete any provi-I

sion of the comprehensive plan to theextent that it affects

the exercise of any powers, rights, functions, or jurisdiction

by'law,on any officer, agency, or instrumentality of the United
17
.States."

The Commission,, though it is charged by the Compact

'With maintaining a comprehensive plan for development.and use

,of water in.the basin, does not have the staff capacity for

independent comprehensive' planning. Rather, its principal func-

tion has been to review and approve proposals.submitted by. other

,agencies--the Corps of Engineers being the most important.

This was especially true in the early years of operation: the.

initial phase of the DRBC comprehensive plan confirmed the
previous Corps study and endorsed the Corps' -recommendation'
18
for immediate construction of eight projects.. The role of.
the DRBC evolved over the ypars,.providing ra voice for the

states in the implementation.of federal water development schemes

-and other ommission
projects in the basin: "The C rather than

being a medium for securing federal commitments-to development,

-ha s.,more often been a medium through which governors have pro-

-tected their states against unwanted privateorfederal proj-.
or.project features.."19

As a coordinating body, the DRBC has had some of the

Same difficulties experienced in Title II commissions. While

states expected the federal representative on the Commission

.to coordinate the positions of various federal agencies, this
has:not happened: "Federal unwillingness to make commitments
through the- DRBC is one major limitation on the federal commissioner

(and, o f course, the organization as a whole). Another is the
federal inability to arrive at unified positions. including_
in the Commission a-single federal representative was Supposed
to.make it an instrument for resolving interagency differences

but neither-the federal commissioner nor the DRBC staff is
able to intervene successfully.- ,201

Although it was vested with extremely broad powers,.
the DRBC has never fully exercised its authority or developed

into a primary management entity. Pollution control planning
and regulatory functions were largely displaced by EPA and the
states under the programs of the FWPCAA: the DRBC has had ver7
little to do with planning under Sections 303 and 208 or dis-

charge permits under Section 402., The consensus is that the

Commission has functioned most effectively in the area of

water supply allocations. There are several reasons for

this: (1) water supplies are.limited in that basin and there

has been an urgent need to resolve conflicts between the.

basin states; (2) the basin states had a mutual interest in

avoiding resort to the Supreme Court for an application of
the "equitable apportionment" rule; (3).there have not been

any alternative allocation programs to deal with the problem

(in contrast to the development of state and federal pollution

control programs); and (4) the necessary water supply projects
have been supported by the developmen .t agencies.

-'53

3.5 Funding Sources

Federal-interstate agencies for water quality or

@river basin manag.ement.have-avariety of funding arrangements.
The following examples are illustrative of the approach.used

by such commissions. ORSANC.0 is funded by the signatory

states according to an apportionment.formula that considers
21
both population and land area. Upon the request of the

Governor of any of'the signatory states, the Commission sub-

mits a budget of estimate.d.expenditures,"as may be required

by the laws of such state for presentation to the legislature
22
thereof". Although ORSANCO provides for the apportionment.,

ofthree federal commissioner-s, the. compact contains.no. com-

mitment of federal funding. Nonetheless, the agency has re-

ceived federal money, in part through Section 106 grants under

......,.the, FWPCAA. Other federal-interstateagencies have more de-

tailed funding schemes and procedures. The Delaware.River

'Basin Commission and the Susquehanna River Basin Commission

have identical arrangements for funding. The DRBC and SRBC
are required to.prepare both an annual capitallbudget 23 and
24
a yearly current expense-budget. After the current expense.

budget. is adopted, the executive director of the-commission

informs the respective signatory parties the amount of money

each must pay in accordance with existing cost sharing es-
25
@tablished for each project and transmits certified copies

of the budget to the principal budget officer of the states

according to the requirements of their respective budgetary
procedures. 26 The pact stipulates that expenses,(fun .ds to

@balance the current expenses budget and the aggregate amount
due for capital projects) must be apportioned equitably-among
the signatory states; the commission must approve the appor-
27
tionment scheme unanimously. The member states agree to
include their contributions toward the -current expense budget
in.their respective.budgets, "subject to.such,,review and

approval :as. may be re uired In th
q eir respective budgetary
28-
processes". Thefunds must.be paid in quarterly installments
29
.to the commission during its fiscal.year. The commission

may draw f,rom.its.working capital to finance its current ex-
pense budget pending,remittances by the member states. 30

Finally it should be noted that the*DRBC and SRBC also receive,
Section 106 grants from the Environmental Protection Agency.

55.

FOOTNOTES - SECTION 3.0

1. This commission was created by the Delaware River
Basin Compact, 75 Stat. 688 (1961).

2. 84 Stat. 856 (1970).

3. 54 Stat. 752 (1940).

4. 75 Stat. 688 (1961). See Delaware River Basin Commission
Annual Report 1978.
5. Art. IV, 54 Stat. 752 (1940).
6. Art. II, 75 Stat. 688 (1961).

7. Art. II, 84 Stat. 1509 (1970).

8. 75 Stat. 688 (1961) and 84 Stat. 1509 (1970), respectively.

9. See, e g., Ohio River Valley Sanitation Compact, 54 Stat.
752 (1940).

10. Art. 11, 84 Stat. 1509 (1970) and Art. II, 75 Stat.
688 (1961).
11. Art. IV, 54 Stat. 752 (1940).

12. W. Barton, Interstate Compacts in the Political Process
104 (1967).

13. Id. at 109.

14. 75 Stat. 688 (1961).
15. M. Derthick, Between State and Nation: Regional Organi-
zations of the United States 50-53 (Brookings Institute
1974).

16. 54 Stat. 752 (1940).

17. Id. Art. XV

18. Barton, supra n.12 at 109.

19. M. Derthick, supra n.15.

20. Id.

21, Art. X, 54 Stat. 752 (1940) .

22. Art. V, 54 Stat. 752 (1940).

23. Art. 13, 755 $tat. 688 (1961); Art. 14, 84 Stat.
1509 (1970), respectively

24. Id.

25. Id.

26. Id.

27. Id.

28. Id.

29. Id.

30. Id.

4.0 TITLE II COMMISSIONS

4.1 Introduction

in an effort to encourage regional water resources

planningin the United States, Congress provided an adminis-
trative mechanism for that purpose--the river basin commission--
1
in Title Il of the Water Resources Planning Act of 1965

to pr
omote better coordination of state, local, and federal

water policies. There are presently six Title 11 commissions
2
in the United States.

The Title II Commission falls into the general category

of federal-interstate commissions, and includes a significant

degree of federal agency participation. Title II of the Water

Resources Planning Act of 1965 confers the advance consent of

Congress upon those. commissions which are established accord-

ing to the terms of the Act, eliminating the need for specific

congressional approval of each new proposed commission.

4.2 Creating a Title II Commission

A Title II commission must be established by executive

order of the President of the United States pursuant to a

request from the Water Resources Council or a requestaddre-s,,.
to the Council by a state within the river basin concerned. 3
The request must: 1) define the area, river basin, or group
of related river basins for which a commission is requested;
2) be made in writing by the Governor or according,to the

laws of the particular state concerned, or by the Council. and

3) have the written concurrence of the Council and not less..

than one-half of the states located in the basin or basins
concerned. 4

4.3 Authority relationships

The functions of Title II commissions are set forth

in the Water Resources Planning Act: 1) to serve as the

principal agency for the coordination of Federal, State,
interstate, local and non-governmental plans for the develop-

ment of water and related land resources in the river basin
concerned;5 2) to prepare a comprehensive., coordinated joint

plan for federal, state, interstate,' local and nongovernmen-

tal development of water and related land resources, with

the requirement that the plan be kept updated and include:

an evaluation of alternative means for achieving optimum

development-of water and related land re sources of the basin

concerned; and recommendations with respect to individual
projects, 6 3) to recommend long-rarzge schedules.of priorities

for the collection and analysis of basic.data and for investi-
7
gation, planning, and construction of projects; and, 4) to
conduct the studies necessary for the preparation of the
@comprehensive plah.8 T. tle II commissions are essentially
non-regulatory, plannin and coordinating bodies.
.9

ATitle Il commission consists ofrepresentatives

'fr
om. both state and federal governments and, in certain in-

stances, interstate agencies and internationalcommissions.

Ten individuals, representing particular cabinet departments

@or federal cabinet-level agencies and appointed by the depart-.
9
ment or agency,head,.serve on a cotmUssion. States within

the river basin concerned send one representative each to

thp commission; these representatives may be appointed according
10
to the laws of the,state concerned. if an interstate compact

agency, which has.been approved by Congress, has jurisdiction

over the waters or a portion,of the waters of the river basin

concerned, it also.sends a representative to.the commission..
If considered appropriate by the President, he may appoint a
representative from the United States section of any inter-
national commission created by a treaty whose jurisdiction
12
overlaps that ofthe newly-fo=ed river basin commission.

The President is authorized to appoint-the chairman
13
of the commission, while.the state members of the commission
ieS 14
elect the vice-chairman. The chairman serves as coordinating

officer of the Federal members of the commission, and represerl.,
the Feder@l Government in Federal-state relations on the
15
COMMISS10n; the vice chairman carries out similar responsi-,
16
bilities for the state members..

The decisionmakirig process prescribed for Title II

commissions.is.an.unusual one, The.Water Resources-Planning
Act stipulates that "in the.work of the commission every- r.ea-,

sonable endeavor shall be made to. arrive at a consensus of all
,tl7
members on all issues. In the event that consensus cannot.

be reached, the position of the chairman, acting in behalf of@

the federal members, and the vice-chairman, acting for* the@
18
@;tate members, must be set forth in the record.' In the

absence of a consensus or an,applicable by-law adopted by

the commission, the chairman, in consultation with the vice-

chairman, has final'authority to fix the times and places for

meetings, to set deadlines for the submission of annual or
other reports, to establish subcommittees, and to decide other'

procedural questions necessary for the commission to perform'.:
19
its functions. The existing commissions have adopted various

working procedures to deal with the situation presented by a

lack of consensus among members. The Missouri River Basin
Commission by-laws require unresolved questions to be settled

by a majority vote, which requ ires six state members and six
federal members voting in favor of the question. 20. The Ohio

Commission has no such procedure, if the commissioners fail

-oritV
to agree on a course.of action, no action is taken; a maj
21
vote is only controlling for procedural questions. The

Upper Mississippi Commission also resol-,@es.deadlocks by

majority vote of the panel, but votes regarding Master Plan
activities require a two-thirds vote of'the commissioners to
22
be considered valid. For both the Ohio and the Upper

Mississippi Commissions, a "majority" is-defined as a majority
.23
of the state members and a majority of the federal commissioners.

A Title II commission maybe dissolved in two-ways:

by a decision of the Water Resources Council or by agreement
-of a majority of the states composing the.,co. issions. 24

4.4 Experience with Title II Commissions

Thirty two states now participate in the six exist-
ing Title II commissions. Most of the regions covered by
these, commi'ssions involve waterbodies unlike the Chesapeake,
although the resources addressed by the Great Lakes.Riv*er

-Basins Commission and,the New England River Basins Commission
have many similarities to the Bay and,its tributaries. As
discussed below,..the current activities of these two particu-
lar commissions offer some guidance for how such an agency

R01
might be most effective on the Bay.

The Title II program has been in existence less
than fifteen years and for much.of that time has been ham-

pered by a lack of guidance or direction from the oversight

body created,by Congress, the Water Resources Council, and

other difficulties.. Much of the need for river basin plan-

ning which existed in 1965 has been subsequently eliminated

by the intense planning efforts funded pursuant to the,
Federal Water Pollution Co ntrol Act.Amendments of 1972.

Under the 1972 Amendments river basin plans were developed
to guide the pollution control program which were also

created, and areawide wastewater treatment planning was

undertaken as an integral part of the massive federal con-

struction grants pr ogram. Generally, the Title II commis-

sions have had little.to do with these planning program.,

although there has been some interaction between some.of
the commissions and statelagencies in studying pollution from
-nonpoint (stormwater runoff) sources.

Studies of the Title II agencies have oftenbeen
critical of-them. Aside from the basic contention that
these agencies simply haveno authority to effect changes

based upon their planning efforts, it has been argued that

othercharacteristics of Title II commissions tend to impair.
their effectiveness. A 1974 study for the Brooking s Insti-

tution noted the difficulties presented by the t e of rep-
yp

resentation on the commissions:

The forum is supposed to foster good-
will, facilitate communication in matters
of shared interest,and provide a setting

within which mutual adjustments may take
place, but it lacks authority or other
means for inducing mutual adjustments.
Also,.members have a very, limited capa-,
city to speak,to their organizations,
which in Title II conmlissions are whole
federal departments or whole'governments,
the States. The represented units are
large aggregates of diverse interests,
and coordination within them is too in-
effectual to sustain the functioning-of.
representative coordinating council at
a higher.level.,25.

A state representative to the Great Lakes and

Souris-Red Rainy River Basin Commissions, Guy J. Kelnhofer,

stated in 1970 that "the basin planning apprQach to water

management is much more beneficial-to the Federal interest

than to the states" and that the commissicns are no more

than interagency coordinating committees with a staff that
26
the states have been coerced into supporting."

Despite the potential for federal domination of

a Title II commission the affected basin.states have usually
joined nonetheless. One explanation for this behavior which

has been offered is the following:

Most states appear to.join for defen-
on the chance that they may be
sive purposes,
able to veto federal actions that threaten
them, such as diversions of water. They seek
defenses against one another as well as
against.federal action. Collectively, they
may seek defense against another region.27

Other appraisals of the Title II program have also,...

been critical.. Ernst Liebman, the Legal Advisor to the

Water.Resources Council, reported on progress made by the,

Title II commissions in 1972. His report noted several

problems with their efforts:, the plans produced are often

noncritical justifications forprojects desired by develop-

ment agencies; the.plans are often dominated by the biases

of. the federal agencies; planning staffs cannot be sus-

tained because of inadequate funds -and.-funding uncertainties
'from year to-year; there-has not. been.adequate:.coordi-nation.-
between Title II planning and othertypes, of plannin
g activi-

ties,(such as pollution.planning);-and, environmental inter-

ests had-not-been brought into a planning process in a
28
constructive role

A 1977 'review of the performance of the Water.

'Resources Council, undertaken.by the Government Accounting

Office, faulted the Council for its lack of clearly defined

goals and failure to provide adequate guidelines for the
planning ac .tivities.of the Ti tle II commissions. 29 Because
of the-statutory role of the Council in.overseeing the acti-

vities.of the commissions, coupled with its influence over

federal budget allotments to each comm�ssion, the Council
is An added political force (or layer of bureaucracy) with

which a commission must co ntend'. In view of the criticisms

of the G.A.O., the necessary interaction with the Council may

compound the difficulties presented to a Title II commission

in accomplishing useful goals for its region.
It should not be assumed that difficulties exper-

ienced in the past will confront a new Title II agency. A

-.65'-A

new agency will certainly benefit from the experience of the

existing commissions and can plan from the outset to have a
F., useful interaction w ith,newer programs for pollution'contr@oi

planning and coastal zone, p!

In recent years the Title II commissions now in
existence have adapted their.program goals and priorities to
the character. of- the region involved.. Individual commissions.

and their Staffs have also been important in shapi g their
n

agencies activities,, oftenin response to new governmental

program and grant opportunities- For example, in 1977 the

Ohio River Basin Commission expended-.significant efforts in
lobbying in Congress over changes in the Corps' dredge*and
fill authority and proposed surface mining control. laws,in

addition to its basic planning activities. Similarly, the,

Upper Mississippi River Basin Commission describes itself as
Ilan effectiveregional influence on policies.formulated in
,31
Washingtori. Other principal concerns of that commission

include floodplain management, river transportation issues
32
(e.g., locks, dredging, etc.), and water supplies..
The planni ng efforts of the Pacific Northwe..st River.
Basins Commission are directed at accomodating competing

needs: flood control, watersupply, hydroelectric power gen-,
33
eration and the maintenance of fisheries. The focus of the

Missouri River Basin Commission are reflected in its most

current list of research priorities forits region: soil.,

surveys, topographic mapping and additional stream gauging.
34
data collection.

Two o f the six Title' II commis s ions have

integrated [email protected],ctivities into other related planning
'programs created.by.Con.gress subsequent to the 1965 Act.
The Great-Lakes Basin Commission-has worked..closely with the

208 planningagencies.of theregio.ns-and has undertaken cer-.:.

@tain key studies to provide information to those agencies
on nonpoint source (runoff) pollution. 35, The Commission has

also provided a forum,for.the exchange of views and.informa-

tion among thestate coastal zone program.managers.in the
Great .Lake s area.36

The'New England River Basins Commission has been
cited as one of the most.vigorous of the Title 'II agencies. 37

It has become actively involved in the.coasta.1 zone programs

Of its member states, providing full time staff assistance to
38
the New England/New York.Coastal Zone Task Force. The Com.mis-,

Sion has conduc te d a variety of studi es in response-to devel-

oping concerns of the area, examining the potential impacts.

resulting from offshore oil and gas development, developing

a-comprehensive dredging and spoil disposal plan, as well
as.addressing topics such as floodplain management and power
39
plant siting. Although each Title II commi-ssion is required

to prepare an annual priorities report.ranking regional re-

search.nebds which deserve federal,or state support,.the New

England agency is developing a follow-through procedure to
40
assure consideration 6f.its recommendations..

The influence of the Title II commissions was

increased somewhat.by a new policy adopted in mid-1978 by

the Water Resources Council which directs that program and

policies of federal agencies be consistent with approved.
:41
river basin plans. Since these plans are developed with

the participation of the same*federal agencies, large scale

conflicts with an approved plan are unlikely to occur. Thus,

the significance of this policy is not likely to become

apparent immediately.

4.5 Funding

Under the terms of the Water Resources Planning Act,,

the federal goverment-pays the.salary of the chairman of

the commission and pays a proportion of the expenses of the
42
co=ission. Th ion itself decides what amount the
e commiss
43
federal goverment should allocate. This request must be

approved by the Water Resources Council and be included in

the budget estimates submitted by the Council under the
44
Budgeting,and Accounting Act of 1921. The apportionment

of the remainder of the budget is the responsibility.of the..
45
commissions may accept for any of
'IMI commission. Title II
its purposes and functions appropriations, donations and
grants of money, equipment, supplies, and materials from
.,,46
any state-or
the United States or-any subdivision or.agency.

'V
68

The following allocation scheme is followed by the
six operating Title II commissions: for all program.costs

other than Level B studies, the federal government-contri

butes two-and.one-half times the combined share@of the state

For certain studies, the federal government pays 75% ofthe.
48
cost and.the states the remaining 25%. The federal share,,

of the costs of administration is usually 50%.

The federal budget for fiscal year 1979 appropr' t@
ia e,.

$2,886.000"for administrative costs for all six Title II
commissions, $3,179,900 for the preparation of plans by the,"

commissions, plus four grants for specific named studies
49
ranging from $135,000 to $828,900.
Thebudget of the Title II commissions generally
includes.total revenues of $7.50,000 to $1,600,000,@ of which

an individual state will typically contribute $20,000 to
50
60,000 annually. Note, however, that a Title 1.1
commis-sion for the Chesapeake Bay would put a greater than
usual financial burden on the principal Bay-region states,-
Virginia and Marylandi because there would be relatively

few contributors.

4.6 Summary

Presumably, it would benefit'everyone interested in

Chesapeake Bay management to have improved coordination and

more frequent communication among the federal agencies having

responsibilities over activities in the Bay's drainage
basin. The creation of a Title Ii.commission would provide
this benefit without requiring the affected states to yield
up any part of their sovereign powers. These and -other -fac--
to s (such as the availabili
r ty of federal funds) have been
.-cited in the past.in support of creating a.Chesapeake Bay
Title II commission'. Nonetheless, the success of sucha

commission would appear to require innovative leadershipsto
adapt-it to the present network of planning activities and
the choice shouldbe.made.witha clear 'understanding of.the
difficulties experienced by other such commissions in the

past.

FOOTNOTES SECTION 4.0

1. Pub. L. 89-80, 42 U.S.C. 1962b (1965).

2. Ohio River Basin Commission, New England River

Basin Commission, Great Lakes Basin Commission, Upper Missi-

ssippi River Basin Commission, Pacific Northwest Basin

Commission, and the Missouri River Basin Commission.

3. 42 U.S.C. � 1962b(a)

4. 14. Id.

5. 42 U.S.C. 1962b(b)(1)

6. 42.U.S.C. � 1962b(b)(2)

7. 42 U.S.C. � 1962b(b)(3)

8. 42 U.S.C � 1962(b) 4

9. 42 U.S.C. � 1962b-l(b)
10. 42 U.S.C. � 1962b-l(c)

11. 42 U.S.C. 1962b-1(d)

12. 42 U.S.C. 1962b-l(e)

13. 42 U.S.C. 1962b-l(a)

14. 42 U.S.C. 1962b-2(b)

15. 42 U.S.C. 1962b-1(a)

16. 42 U.S.C. 1962b-2(b)

17. 42 U.S.C. 1962b-2(d)

18. Id.

19. Id.

20. Bylaws of the Missouri River Basin Commission

Art. IV �2(b). (1973).

-71-

21. Ohio River Basin Commission Bylaws Section

9(b).

22. Upper Mississippi River Basin Commission

Bylaws Section VIII; letter from Judy Salonek, secretary
of the Commission, dated September 18, 1979.
23. Ohio River Basin Commission Bylaws Section
9(b)(3). Upper Mississippi River Basin Commission Bylaws

Section VIII(b)(3).

24. 42 U.S.C. 1962b-2(a)
25. Derthick and Bombardier Between State And Nation;
Regional Organizations of the United States, Brookings Institution,
1974.
26. Id.

27. Id.

28. Liebman, National Water Commission Legal

Study (1972).

29. United States General-Accounting Office,
Improvements Needed by the Water Resources Council and

River Basin Commissions to Achieve the Objective's of the

Water Resources Planning Act of 1965. (1977).

30. Ohio River Basin Commission 1977 Annual

Report.

31. Upper Mississippi River Basin Commission

Annual Report for Fiscal Year 1978.

-72-

32. Id.

33. Pacific Northwest Riveer Basins Commission

Annual Report for Fiscal Year 1978.

34. Missouri River Basin Commission 1978 Annual

Report.

35. Great Lakes Basin Commission 1978 Annual

Report.

36. Id.

37. Derthick, "Comparisons of Management Institu-

tions," in The Role of a Title II Commission as as Alternative

to Chesapeake Bay Mangement and Discussions of the Virginia.

Maryland Coastal Zone Management Programs. (Citizens Program

of the Chesapeake Bay, 1975).
38. New England River Basins Commission Annual

Report 1978.

39. Id.

40. Id.

41. Pacific Northwest River Basins Commission

Annual Report for Fiscal Year 1978.

42. U.S.C. � 1962d(a).

43. U.S.C. 1962b-6(a).

44. Id.

45. Id.

46. 42 U.S.C. 1962b-6(b).

-73-

47. Memorandum from Robert Kaiser, 9/27/79 re-
ing conversation with Joel Frish, United@States Water
gard'
Resources Council, Washington,.D.,C., Op
erations Division.

48. Id.

@49. 42 U.S.C. 1962a (1979).
50. See 1978 annual reports for the six commis-

sions named in footnote 2.

51.0 COASTAL ZONE MANAGEMENT ACT--SECTION 309 AGENCY

5.1 Introduction

The Coastal.Zone.Management Act of 1972 is. structured
around the assumption that the primary responsibility for the
management of the nation's coasts, should remain with-the states-,

The Act provides-a package of guidelines, incentives and siibsi-
diestoencourage each coastal state,to develop and implementa@
comprehensive plan for the management of the various resources
and activities occurring at the interface of land and tidew ater.'i.
Both Maryland and Virginia have worked for several'

years.to develop qualifying-programs under the Coastal Zone

Management Act. At thistime the Maryland plan has been approved
by the Department.of Commerce Office of Coastal Zone Management.,

Virginia has mAde.substantial efforts in. the preparation ofa

plan; however, the Virginia General Assembly has not.as of this@@
date passed legislation necessary to obtain federal approval of"
it's program. As a.result, the future of-the Virginia plan is

uncertain.

In many respects the Coastal Zone Management Act is'

a.response,to the same sort of problems which are presented in
the management of the entire Chesapeake Bay. EsS4@ntialf@,'the
Act provides federal funding for the development of statewide

coastal'zone plans which include the following requirements:

1. An identification of the boundaries of
the Coastal Zone subject.to the manage-
ment.program..

2. A definition of what shall constitute
permissible land use'and water uses
within the Coastal Zone which have a
direct and significant impact on the
coastal waters.

3..- An inventory and designation, of areas
of particular concern-within the,
Coastal Zone.

4., An identification of the.means by which
the stateproposes to exert control
over the land uses and water uses re-
ferred to in paragraph.2, including a
listing of relevant constitutional
provisions laws, re lations and ju-
gu
dicial decisions.

5. Broad guidelines on priorities of uses
in particular areas, including.specifi-
cally those uses of lowest priority.

A description of the organizational
structure proposed to implement such.
management program, including the--re--
sponsibilities of interrelationships
of local, area wide, state, regional
and interstate agenciesin the manag4_
m
ent
process.

7. A definition of the term "beach" and
@a planning process for the protection
of, and access to, public beaches and
other public coastal areas of environ-
mental, recreational, historical, aes-
thetic,ecological, or cultural value.

8. A planning process for energy facili-
..ties likely to be located in, or which,
may significant-ly,affe-ct, the coastal
zone, including, but not limited to,
a process for anticipating and manag-
ing impacts from such facilities.

7.6'

9. A planning process for (A) assess-
ing the effects of shoreline erosion
(however caused) and (B) studying
and evaluating ways to control or
lessen the impact of, such erosiont
and to restore areas adversely.ef-..,..
fected by such erosion.-!!;:--

..By providing for an integrated management of land.
and water uses in astatewide..plan,,thelack ofuniformity.
which.might otherwise exist among local jurisdictions is

extent. As implemented in Maryland, the

.,program provides for a coordinated network of authority among

state and local agencies having regulatory responsibilities in

the coastal zone.. This network largely preserves the important

role whichlocal (county and municipal) governments hav*e- trad-
it.ionally occupied in land use regulation in Maryland, supplemeinj

@s Tid e
by the resources and oversight capabilities of the state.'

water Administration. Although state boundaries within which the

Coastal zone program of asingle state must be confined do.not

necessarily coincide with the natural limits of ecosystems and

watersheds, this type of program offers less fragmentation of

policy and regulation than would [email protected] a@syste'm of in-
dependent local controls absent the statewide constraints.of a

coastal zone plan.

5.2 Creating a 309 Agency

Section 309 of the Coastal Zone Management Act,pro-
vides that adjacent coastal states are encouragedto give high

e anning, policies,,.
Priority to coordinating statecoastal zon pl

and programs with respect to.,.contiguous.area.8 of such states
and to-:-".--studying.'., planning And-llmpIeme t** fied-coa tal zone
n ing, uni-, s

77'-

.,policies with respect to such areas.3 To encourage such coor-
dination., Section 309 specifically grants the consent of Congress
to any two or morestates@to negotiate'and enter into agreements

or compacts for developing and administering.coordinated Coastal

Zone programs. Although no provision is made for formal parti-

cipation by the federal.agency, Section.309 also encourages the

adoption of.a, federal-state consultation procedure for use when-

ever such consultation is requested,by the interstate instrumen-

tality for agencies. Furthermore, in the absence of a formal
interstate agreement or compact, adjacent coastal states may

also create and maintain a temporary planning and coordinatin

entity'which is likewise eligible for grants covering up to 90

percent. of their operating expenses.

The development of an agency pursuant to Section 309

would-take advantage of the fact that substantial planning and,
organization efforts have already been.undertaken'lin the-,par-
ticipating states in the preparation of their Coastal Zone..
-Management.Plans. It would build upon.the experience developed
.in each state in operating on an intergovernmental basis and
would rely upon the network of contacts and communications which

'have been established on an intrastate basis.

Another characteristic of an interstate Coastal Zone

Agency would be its broad concern not.only with protection of

p
rticular environmental values and resources, but also with the
a

rational accommodation of competing demands for preservation,

recreation, residential, commercial and industrial development..'
Because -there are areas of mutual interstate interest.presented
by each of these demands.on the Chesapeake Bay resources,'an
interstate 309 agency could@be charged with any necessary re'-.

sponsibilities in all of theseareas.
R Even though Virginia has notreceived program approv.j
the Federal statute suggests that Virginia and.Maryland may.par-;.

ticipate in a@309 interstate compact even in the absence of an:,

approved.program in one of the states. The statute encourages
14 coordination, study, planning, implementation" of unified

Coastal Zone policies.,- Certainly., an interstate agreement or

e
compact may be establish d.whichwill carry,.out.this.purpose
even though it.'does not result in an approved plan in. one ..of the
respective states. Participation by the two states will carry

each further towards the goal of optimum management--of coastal

resources, even if the particular requirements of program approva.

are not met immediately by,on.e..of,the participatingstates..

Participation by-Virginia.would encourage thatstate. to continue,

to maintain an interest in the program which may eventually re

suit,
in an approved program-. The specific language conferring.t@

consent of Congress grants consent to enter into an agreement or
AI compact for "developing and administering coordinated Coastal
Zoneplanning, policies, and programs" (Emphasis added). [email protected]

coordination of planning and policies can be achieved notwith-
standing the fact thata developing program has not been approvec

in one of the two states.

To date.the-federal Office of.Coastal Zone

Management has not made any determination as to whether a oint

Maryland-Virginia agency would be eligible for funding under-

Section 309.
J,

5_3 'Authority Relationships

Section 309 is completely open-ended about the types
of responsibilities which might be.delegated by the states to

an interstate-agency. Therefore, it would be1eft to the

states to decide whatauthority would be*conferred@upon-a 309-.-..-

..agpncy and how that authority would be exercised. The consent
.:granted in 309 does not in any way constrain federalagenciesi

-is encouraged.
.but the establishment of a consultation procedure

Although the program cannot prevent the duplication
of government activities at the state and federal.levels, the-Act

-in a state which has.an-
does provide that federal activities
4
approved coastal zone program must conform to that program.

Thus, uniformity of decisidU is achi d between federal and
eve

state agencies, even though'duplication of effort may not be

avoided.@ If the states established uniform approaches to

Chesapeake Bay'problems of mutual.concern...th,e',consisting pro-

r
vision would help assure fede al conformity in.Maryland and,
,perhaps, eventually in Virginia as well.

5.4 Experience with Section 309 Agencies

Section 309 has two dimensions: it confers the

prior consent of Congress upon certain-types of interstate

agreements,-and it authorizes the Secretary of Commerce to.

make grants to advance the purposes stated in the section.

In the former sense, Section 309 already operates to confer

constitutional validity upon any interstate .agreement or,

compact formed for the stated purposes. Nonetheless, the

second aspect pinpoints the status of the implementation of

the section: so far no grants have been awarded for Sec ti on

309 activities. For example, the New England River-Basin Com-

mission, which has provided some interstate liaison among
the New England states involved in coastal zone plannih has''
9

tried for some time to obtain such funding, without success.
Although there are no Section 309 agencies in
existence, there are many coastal zone, programs which have
been developed and approved. To a very great extent, the

probability-of success of a 309 interstate agency is linked
to the fortunes ofthe nation's coastal zone management,

program..

5.5 Funding Sources

Section 309,allow's up to, 90%lfederal financing for
5
a qualified organization. As noted above, no federal funds

have been disbursed under this Section. At present the only
assured source of funding is the states themselves. Possible

the federal coastal zone o a
perating grants to the st te of

Maryland could be used in part to support an interstate liaison

of this type. It is possible that, with the supportof the

Virginia and Maryland delegations,. Congress could be persuaded
to appropriate-funds for 309 activities. Also, certain acti-

vities may qualify for other funding sources, such as Section

106 of the FWPCAA.

5.6 Summary

A Section 309 interstate agency could take almost

any form deemed desirable by the states. No further action.

ore organizing suc
by Congress is necessary bef h a body. Up
to 90% financing may eventually be available from the

Department of Commerce, although such funds have not been

available in the past. This agency would be an extension of

the executive branches of each state, not a separate govern-

mental entity. It would build upon prior coastal zone manage-

ment efforts in each state and could be enlarged or reduced,

needs of the states.
in response to the

-82-

FOOTNOTES SECTION 5.0.

1. 16 U.S.C. 1,451 et..@@-

2. 16 U.S.C. 1454(b)

3. 16 U.S.C. 1456b

.4. 16 U.S.C. 1456(c)

5. 16 U.S.C. 1456B(d)

6.0 SECTION 208 INTERSTATE PLANNING AGENCY

6.1 Introduction

In 1972, Congress enacted a sweeping body of legislazion

to deal with the nationwide problem of water pollution,, the
-4 Federal Water Pollution Control Act Amendments (FWPCAA).' ntis

statute attempted to coordinate research, planning, construction
2
grants. and the regulation of activities affecting water quality.

Section 208 of the Amendments established the areawide comp.-e-

'hensive planning program which was designed to serve as a basis
3
for all activities affecting water quality. This planning

process i s intended to result in an areawide stategy either on

An intra or interstate basis. The plan is updated annually

setting forth major objectives, the methods to be used to attain

these objectives and priorities for preventing and controlling

pollution over a five year period.

6.2 Creation of a Section 208 Interstate Planning Agency

The first step in this process is to identify either

the intra.or interstate area which, as a result of urban-

industrial concentrations or other factors, has substantial
water quality problems.4 Water quality problems are deemed to

.,exist when water quality either has been or may. in the future

-be degraded. to the. exteat': that.. extensive or desired. water-uses,

are impaired or precluded and when the water quality problems
are complex. 5

The.procedures involved in the designation of both

the planning areas and.the planning organization are cunbersome.
The emphasis, however, at the first stage of designation is for

the Governor of,each state to call on the experljence of local

governments which exercise jurisdiction within the planning

area or which have the capability of water quality management
6
planning. Infact, the Governor may allow self-designation
for elected officials of local units of government.who'would

then deal with the Environmental Protection Agency directly_ @7

The area designated and the choice of the planning agency are-
7
subject to the approval of the-Regional Administrator of EPA.

In the event the Administrator disapproves any of the designa-@,.,

tions he must specify.his reasons in a public notice in the
8
Federal Register. The interstate orstate planning agency may@.

delegatef with the approval of the Regional Administrator, re-.'--

sponsibility for portions of the water quality management plani',
9.
after consultation with local elected officials..

A rather detailed water quality,management plan is re--;
.10
quired for each designated area. The plan must include water

quality assessments for each segment of the area,. an identi-

fication,of sources of pollution, an inventory of municipal
pollutant-sources, a.summary of existing,land use patterns.,..
demographic and economic growth projections for at least a

.twenty year period and projected industrial waste loads. Of

major.--concern-withinthe. 208process, is an assessment of

-'85.

nonpoint source pollutants: identifying the types of problems.

and thel-affected waters as well as any nonpoint sources which

originate outside a 208 area and which affect water quality

standards. within the area. The plan also must include a dis-

CUSSIOnof existing state and local regulatory programs.which

will be utilized to implement the plan. The plans are subject.

to review by the local and state agencies and then are submitted

to the Environmental Protection Agency for final review and

approval. Once a planis approved no permits or construction

grants may be issued which are in conflict with the plan. EPA

has attempted with limited success,to require all construction

grantsto be consistent with interior outputs from the plan,

prior to Plan completion-although there is no express statu-

tory authority for this requirement.

The above discussion highlights the fact that the

functions carried,out by the 208 agency relate directly to water.,
quality issues. There is only an i-ndirect relationship between
the water quality issues and other re'source management activities.
For eIxample,, fisheries management would be indirectly.affected
@by procedures designed to improve,water quality. Marine trans-
portation and development would likewise be indirectly affected-,
by the control of nonpoint source discharges. In all these areas
the local determinations would be subJect to EPA review and

approval authority.

6.4 Experience with Section 208 Planning Agencies

Experience to date with 208,interstate agencies has

been minimal and only partially successful. An example.of an

interstate agency.in this area is the Council of Government 208

for the metropolitan District of Columbia area.- This

was a locally designated agency agreed to by thevarious

..counties and.,incorporated cities.within the D.C. area. 'It is

presently composed of. seventeen (17) jurisdictions. The-Council@

..has designateda, number of subordinate boards which work on the.@;'

various components of the interstate plan. Such boards are

designated for water resources, health and transportation

components, and,othe3@ areas. Experience has indicated that while

@there is general agreement on the.goals of-water quality improve-

ment there is a significant disparity in the methodology for

attainment of these goals.. The Council has not been successful,@.

to date with the regional handling of the common problems of

sewage treatment and sludge disposal., There has beenconstant,

@court litigation on these issues.

Other examples of interstate 208 agencies which have
been designated include the Ark- Tex Coun cil of Governments, which
recently completed the Texarkana Areawide'Water Quality Management

Plan, the Ohio-Kentucky-Indiana Regional Council of Governments,-
A.rkhoma Regional Planning Council, the Washoe Council of
Governments,the Mid-America Regional Council, the Delaware Valle'!
Regional Planning ComMission and the Tahoe Regional Planning Age"C-.1

"Oft

Generally the basic thrust of 208. planning has been
directed at the planning of wastewater treatment facilities, with

a.secondary emphasis upon:abating pollution from nonpoint sources.
As these programs mature it is expected that they will generate

plans of a more comprehensive nature which address the entire
spectrum of activities which may adversely affect water quality.

6.5 Funding Sources

The qualified.208 agency is entitled to 100% funding

for start up costs. 75% funding is available subsequent to the
ve 12
nitial two year period allocated for plan de lopment.

6.6 Summary

Section 208planning is now an integral part of the

water quality strategy of the states and directly influences
decisions concerning grants for sewage treatment works and con-

cerning permits for the discharge of pollutants. It. may be used

_,toemb,race a wide range of problems having.water quality impacts...

This choice has a potential for substantial federal funding, yet
% such an agency will be preoccupied to a large extent with the

@detailed, somewhat specialized planning requirements.spelled out

in EPA's regulations for 208 planning.

FOOTNOTES - SECTION 6.0

1. 33 U. S. C. $1251 et seq.

2. Id.

3. 33 U.S.C. $1288.

4. 33 U. S.C. $1288 (a) (2).

5. 40 C.F.R. $130.13(a)

6. 33 U.S.C. $1288(a)(2)

7. 33 u.s.c. �1288(a)(7).

8. 40 C.F.R. $130.13(h)

9. 40 C.F. R. �130,14(a)
10. See Generally 40 C.F.R. $$130-131.

11. Report of the Comptroller General of the United
States Water Quality Management Planning is not Compre-
Not Be Effective for many Years. p. 33
hensive and May

12. 33 U.S.C. �1288(f).

-89-

7.0 FEDERAL REGIONAL AUTHORITY

7.1 Introduction

One alternative which would achieve unified com-

Bay would
prehensive management for the entire Chesapeake

be the creation by Congress of a single authority vested

with all the necessary power to carry out management
poses. The most notable example to this approach is rep-
resented by the Tennessee Valley Authority, a public cor-

poration established by federal law. The. TVA, controlled

by three directors appointed by the President, was given
the power to condemn land in the name of the United States,
construct fams, generate and sell electricity; erect flood

control works and provide for the navigation of the Tennessee
River and its tributaries. 2 Generally speaking,the TVA has

exercised these powers fully and is recognized for its effec-

tiveness in implementing its goals of flood control,power

production and the maintenance of navigation. The Authority
assumed a distinct regional character in carrying out these

activities. Conceivably, comparable institution could be

Created for the Chesapeake Bay.

Then entity in existence today which most resembles

the TVA is the Army Corps of Engineers. This single agency

-90-

of
the Department of Defense has been given far-reaching

control over the physical development and modification of the

Chesapeake Bay, its tributaries, and wetlands. In addition

to this broad regulatory power, the Corps has public works.
responsibilities which involve it in port development, harbor

and channel maintenace,and critical dredge disposal problems.
Clearly,the Corps represents the greatest present concentra-

tion of power over the Chespeake Bay system. By virtue of

the National Environmental Policy Act the exercise of these

powers is guided not only by developmental and navigational
purposes, but also by consideration of environmental conse-
quences,water quality, historical preservation, recreational
needs and a host of other public interest goals. In connec-
tion with its larger public works, and regulatory action,the
in the role of a major information gatherer and
Corps is also
researcher. Its study of existing and future conditions on the
Chesapeake Bay represents one of the most comprehensive synthe-

ses of knowledge about the estuary ever produced. The prep-

aration of environmental impact statements as required by NEPA

for the more significant Corps regulatory and developmental

actions represents a substantial commitment of public resources,

the Chesa-
for applied research and information gathering in

peake region.

All that would be necessary to complete the concen-
tration of authority under one roof would be an executive order

-91-

transferring remaining areas such as water quality and fish-
eries management from other a gencies to the Corps. Also it

would-be necessary to consolidate parts of the Norfolk and

Baltimore Districts into a new Chesapeake District. Federal-
state interaction would be carried out under the consulting
procedures required by NEPA and the water quality certifica-
tion procedures of the FWPCAA. A number of costly and dupli-
cative state programs, such as wetlands regulation,could be

eliminated. All funding would be from Congressional appropri-

ations.

option clearly involves a departure from the

state-federal allocation of responsibilities which has evolved
in the region, and is unlikely to have significant political,

support.

FOOTNOTES SECTION 7.0

1. 16 U.S.C. 831 et seq

2. 16 U.S.C. 831c

-92-

APPENDIX A

OVERVIEW OF THE LAW OF INTERSTATE COMPACTS

A.l. What is an Interstate Compact?

When considering the legal consequences of an interstate:
compact, the threshold issue to be faced is determining when..
an agreement be@ween two or more'sitates is-an "interstate
pact" within the meaning of Article 1, Section 10 of the.

Constitution. This section provides as follows:

No State shall enter into any treaty,-
alliance or confederation... (clause 1)

No State shall, without the consent of
Congress ... enter into any Agreement or Compact
with another State or with a foreign power...
(clause 3, the compact clause..)'

This section places two restrictions on state action; states

are absolutely prohibited from entering into treaties, alli-

ances, and confederations and may enter into interstate agree-

ments and compacts only with the consent of Congress. The
Constitution however', provides no insight into what elements

distinguish a treaty from,a compact, nor does it indicate whdt-:@-'

differentiates a compact from other interstate actions which_-_

would be valid without congressional.consent. @In the case of
Virginia vs. Tennessee, decided in 1893, the. Supreme Court

stated what has become the generally accepted test for deter-

mining when a compact between states requires congressional
consent: "[I]ooking at the clause in which the terms 'compact'
or tagreement'. appear .it is-evident that the pr'ohibition is.

directed 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.""
One commentator, trying.to explain what distinguishes
those agreements needing consent from those that do not, has

suggested that the difference may be in the degree to which
the agreements affect the federal-state allocation of power
2
in either their immediate form or their potentialities. He
p

noted, for example, that consent is unnecessary when a-state.

.contracts with Canada to change the course of a drainage.....
stream3 or when two states agree to give land.for a proposed
4
railroad. However, when states join to fight a natural re
sources probleM5 or to treat some social problem6 there exists

a potentiality of union which at.some time could threaten the

supremacy of the federal government.

An alternative explanation, based upon the same dis-,

a govern-
-tinction is that interstate arrangements "made in

@mental capacity"require consent while those.of such a nature
-,-that they could be made'by individuals in a private capacity
7
not.

Another commentator has defined a compact as a trans-
..'action between states, noting that neither "mere similarity
..of conduct arising from common motives, nor acquiescence of.

one state in the acts of another" will be sufficient to con-.,

stitute a compact in the absence of an interstate promise or
8
grant. Thus, he argued that it has never been suggested that
9

..the@-enactment of uniform laws constitutes an.impermissible

compact. The'absence of an interstate.promise or commitment,

is a key difference between reciprocal, repealable legislation
9
and a compact. Additionally, neither mere preliminary nego-
'p
10
tiations toward a final and formal agreement nor concurrent

charters granted to a-single corporation are within the- com-.',@--@'i

pact clause.

In the past courts explained the test of the E
scope oj

the compact clause in terms of the actual consequences of

particular agreement, rather than in terms of its potential

effect. Nonetheless, commentators have argued that

is more plausible.when stated in terms of the po s s ib le,. as
12
opposed to actual, effect of the compact. The test would

then examine the degree to which an agreement may conceivably

conflict with federal lawor interests, so that any-possibility'.:5,

of conflict would indicate the need for'submission of the com--

pact to Congress. This interpretation of the Virginia rule..

has become the general standard used today by compacting. states@:,..@',
to try to determine the necessity of consent and has.been adopted.
by the Supreme Court in the 1978'case of United StAte's' Steel
13
Corporation vs. Multistate Tax Commission.

Applying this rule to specific interstate agreements is

not always easy., From the statement of the rule apparently only'

the exceptional agreement will require consent, and in every

case subsequent to Virginia vs.*Tennessee,in which an inter-

state agreement has been challenged for lack of congre ssional

consent the.reviewing court has found the agreement exempt from
14
the consent'requirement. Despite this fact,0.until recently
draftsme ave beenso uncertain'of the application of the

-.compact clause that the great majority of formal interstate

agreements have.been submitted to Congress for its approval.

For its part., Congress has been equally uncertain as to how

and when to exercise its power of consent. For example,

Congress refused to approve the Southern Regional Education
15
Compacts., The states involved, however, have since imple-
mented the agreement without Congressional consent. Notwith-

standing this, two subsequent and substantially similar agree-
ments,. the New England Higher Education Compact16 and the-..-
17
'Western Regional Education Compact were submitted to and

approved by Congress.

In recent years states have been more willing to assume
18
T. that consent is unnecessary and to proceed without it. - The
.@:majority of their judgments, however, have not yet been@ sub.-
@Jected to judicial scrutiny in these instances.: The courts.,
their part, have had a difficult time in trying to apply
11 'the rule uniformly to actualagreements. -Two compacts which
19
were submitted to Congress and received approval were,sub-

stantially similar.to one the New Hampshire court found to be.
20
exempt from the clause. These examples illustrate the

rule's inherent ambiguity@

@,In general, therefore, the applicability of the compact

clause is limited to those agreements which tend to increase

the political power of the states and which may "encroach upon
.21
or interfere With the just supremacy of the federal govern-
ment. @Thus,'an agreement which purports to authorize the sig-

.natory states to exercise any powers they could not exercise
22
in its absence@would require congressional consent. Another,

formulation of the test which has been suggested examines
04

whether the states have delegated any of their sovereign

power to an agency or commission established by the agree-

ment, or whether the states have retained their freedom to

adopt or reject the rules and regulations of that agency or
23
commission.

Using these delines the recent executive agree-
gul

ment between-the.governors of Maryland and Virginia to esta.-
blish a bi-state working committee for the purpose of provid-

ing a forum for.the exchange'of information, the coordination
`5
of problem solving, and the study of new means of bi-state
24
Chesapeake Bay management -is probably valid under the compact;@
clause,'for.the agreement does not have the potential to en-

hance the states' powers and authority at the expense: of the

federal government. Similarly, the joint Maryland-Virginia.'
Legislative Advisory Commission on the Chesapeake Bay 25, IS

also probably valid. The commission's purpose is to review.

existing state and federal roles within the Bay region and to

examine and evaluate available. alternatives for more effective
coordination in Bay management, and, based upon its appraisal,

to recommend the most desirable Bay management alternatives

to the Maryland and Virginia state legislatures. The commis-
sion has not been given any of the signatory states'-sovereign

power, but is to operate in solely an advisory capacity.

In contrast, a bi-state 'regulatory commission or

authority with the power to establish rules and regulations.

binding-on the states and their citizens is likely to require

congressional consent, for such a"body would have'the potential

:97

o impinging upon federal authority or for enhancing and con-

centrating the authority of the states. Thus, broadly speak-
k_
I,.-
the consent of Congress is probably not necessary for an
@4
advisory body created to enhance communication and coordination

between the two states.@ A commission which is delegated reg-

ulatory powers by the participating states should receive
'Congressional approval to-assure the validity of its existence
and authority.. '.Finally, the consent of Congress may be desir-

'able to the extent that the compacting states seek to require

federal agencies to be governed to some extent by the inter-,

@state commission or to limit the effect of federal laws as*--

;.they'apply to matters within the jurisdiction of the- commission..

As.a final point, states considering entering into an

interstate agreement must remember that their power to make

-.Compacts is restricted also by other constitutiona'l.:provisions.
The restrictions of other prohibitive clauses of Article I,.

.:Section 10 and the Fo urteenth Amendment, for instance,',apply

-to actions taken by several states as well as to a state's
individual acts..@-Constitutional provisions delegating certain
'powers to the federal government, such as the commerce power,
.,also limit states' powers to enter into compacts.. Again, the

that apply to the actions of an individual state apply
26
.,to those of a coalition.

A.2 Form and Effect of'Cohgressional Consent

Neither the Constitution nor federal law provides a
formula. for.-@,the@lulfillment_.of the consentrequir -enent.@thus

the consent of Congress may take the form of any action signi-
fying acquiescene in the terms of the compact. Consent may.

either precede or follow the making of the compact and may be
27
manifested in numerous methods. Since consent is a condi-

tion precedent to compact validity, such a difference merely
28
determines the time at which the compact becomes effective.

Consent may be specific: that is, it may be given to a par-
29
ticular compact between particular states;. or general,rule

authorization is given in advance all compact which may be
30
made subsequently in a designated field. "-As a general rule

congressional silence may not be regarded as assent in the

absence of a broad resolution assenting in advance to such
agreements, but it is at least arguable that consent may be
implied from a congressional act recognizing a situation re-
sulting from a compact, from acquiescence over a long period
or until disapproved by some affirmative action by Congress.31

Consent is subject to Presidential veto, 32 although,the veto
33
has rarely been invok

An important issue is whether consent once given can
be rescinded by Congress at a subsequent time. The authori-
ties are in disagreement on this issue; as a result," a typical

procedure followed is for Congress to consent to a compact with-

a limitation attached regarding its tenure, with renewed con-
gressional consent required at designated intervals.34 Pro-
Ponents of the view that the consent requirement is a continu-
ing one argue that as the compact clause gives Congress the
responsibility. of safeguarding both national interests andthe
interests of compacting states, Congress' power cannot be

limited to passing on the compact in the first instance alone-

but must include the ability to subsequently alter, am nd, or

repeal the consent given. This,@it has been.argued, is nec-1
essary because the administration of the compact may not be

consistent with the purposes for which Congress originally

gave its approval. As conditions and needs change,.plans
p

.which at the time of implementation do not adversely affect

interstate commerce.,or another federal.province may do.so at
35 36
a later time., it has been suggested that in the, absence
..:Of a change incircum tances or a fraud upon Congress,3 17how-

*ever, the withdrawal of consent by Congress.
unless accompanied

@by the passage of legislationinconsistent with the substantive

terms.of the compact, should not be sufficient to invalidate.

the agreement, for the Constitution does not give Congress the

p
ower to abrogate valid ekisting agreements that do,not conflict

s
with Congress-own powers. For the same reason, the expres

reservation of Congressional power to amend or revoke ratifi-
cation might be held ineffective. 38 However, while'Congress"
-1 Jurisdiction',is not enlarged by giving its consent to an inter-
"Is 39
tate compact, it also is not diminished.

It has,been established that Congress may regulate.in

.!.@the field covered by the compact despite inconsistency with

-@that agreement. If Congress were to be prevented from regu-
lati.ng because of its prior consent to a compact, "the. Congress.
and'.the two states would possess the power to modify and alter
the Constitution itself. ,40

A.3 Legal Consequences of Entering into a Valid Interstate,
Compact

Compacts are frequently analogized to contracts between.",'
the signatory states, 41 supplemented by necessary state legis-_--

lation,.and once a compact has been ratified by Congress. and
becomes le ally effective, it is binding upon the legislaturea
9
N
42 43 44
.1",
administrative officials, courts, and citizens of the

compacting states. Compacts are, therefore, similar to treat

and their legal status has been developed in terms analogous

t
to international law doctrine. It has been noted, however,_ a
compacts differ from treaties in an important respect--the'..,_-'
45
degree of s eriority over inconsistent legislation.
UP

Compacts cannot be unilaterally changed or modified by._-,?,,@
46
one signatory, and.when properly ratified, invalidate any

subsequent statutes passed by-the state legislatures which are.,
47
inconsistent with,them. -The Supreme Court has determined thar,@

the inconsistent state statute is an unconstitutional impair-_1,
..48
ment on the obligation of contracts.

A related issue is the effect of inconsistent federal

statutes upon an interstate compact. If the federal statute :1,111@
was -enacted prior to the making of the compact, and if the

interstate agreement is one to which the consent of Congress@.

has not been obtained, the agreement would be invalid under
49
the supremacy -clause of the Constitution. On the other

hand, if Congress had given its consent to the agreement, that
50
consent might be held to repeal the prior statute.

101 -

POW

..One commentator has noted that the use of general
.congressional consent to.a given category of compacts may
lead to complications if that consent is given preemptive sig-
nificance. 51 Compacts made by virtue of such consent mayor
-,may not be inconsistent with prior congressional acts,and
the question arises whether Congress intended the general.

consent to cover all compacts or only those consistent with..

federal laws. Where the general consent-conflicts, with a
...later federal statute.in the same field, the consent may well

be deemed to have been retracted insofar as it is inconsistent
52
with that stature..

Similar considerations apply when the ... terms of-a com-,
@Pact conflict with a'prior federal treaty. Congress has the
53
-power to abolish.treaties by subsequent legislation, and

"whether.the prior treaty or the subsequent compact would be

n whether the consent,given by Congress
'superior depends upo

as the usual effect of giving the compact the force of federal

'1aw.
'There has been substantial debate as to the legal.'

,status of a compact when properly ratified by Congress.
54
Although,it has been severely criticized, the Supreme Court
.-subscribes,to the doctrine that a sanctioned compact is a
55
[email protected] statute or "law of the Union" This theory forms

ths basis for certiorari review of issues arising in state.
56
.@compact cases, and for the.principle that in construing a.
compact.the intent of the consenting Congress is controlling.57

Because of the federal character of ratified interstate

compacts, the Supreme.'Court has ruled.that these agreements

-102

form an exception to the established rule that the decision
of a state's highest court is the final authority on the

validity of a state statute under the state constitution.
Where a state court, has directly passed upon the question
of the validity of a state statute under the state constitution
the decision is usually considered conclusive and binding upon
the federal courts, regardless of whether the state court has

determined that the statute and constitution are in conformity58

or has ruled the statute void because in conflict with the
59
state constitution. In contrast, the Supreme Court in Dyer

vs Sims,60 overruled the decision of the West Virginia
61
Supreme Court of Appeals and held that the state statute
authorizing the state to enter into an interstate compact was

not in conflict with the state constitution. The Court's
62
reasoning has been criticized, but-the end result seems

necessary considering the nature and purpose of interstate

compacts. A contrary holding which limited the scope of

federal judicial review would mean that an "agreement solemnly

entered into between states by those who alone have political
authority to speak for a state could be unilaterally nullified
or given final meaning by an organ of one of the compacting
states." "A state," the Court observed in Dyer, "'cannot be

its own ultimate judge in a controversy with a sister state".63

The Dyer decision clearly established the character of
a ratified interstate compact as a body of federal law of which

the Supreme Court will be the final arbiter and which that.

Court will enforce against the member states which may later,
seek to avoid its terms.
-103-

A. 4 Terminating a Compact

As indicated above, one signatory state may not act

unilaterally to terminate a compact by revocation or by the
64
passage of,subsequent inconsistent legislation. @@This rule
can be explained by two theories of the nature of interstate
compacts. In Green vs. Biddle, 65 the Supreme-Court'held that.

inconsistent subsequent state legislation was invalid on the.

theory that a compact is within the contract clause of the
66
Constitution and cannot be abrogated by one state. That
conclusion can also be justified on the basis,of the analogous,
rule of international law that one signatory cannot rightfully.
67
terminate its conventional obligations.

In light of this rule, compacting states sometimes
provide in the compact itself for termination by.a. signatory-
upon the giving of stipulated notice. If termination is pro-

vided for, a state may withdraw-even though the rights of the
citizens are affected adversely; the . SIupreme Court.has.held-
that subjects of the signatory states are not parties to the
.compact. 68

A remaining question is whether a compact may be term-,
-inated by thewithdrawal of congressional. consent -or by the,
'passage of incons istent feder allegislation. In Pennsylvania
69
vs. Wheeling Bridge Company, a federal statute which allowed

for the obstruction of the Ohio River was-upheld by,the Court,

even though Congress had previously assented to an interstate
compact whereby the signatory states had agreed to keep, the.
river free from obstruction. ..Any other result. would conflict",@"''."'.'

with the rule of the supremacy clause and the general rule

of statutory construction that when two acts of Congress
70
conflict, that which is adopted later in time controls.

The same considerations would appear applicable to Congress

power to terminate a compact by withdrawal of consent given the,

prevalent view today that the federal government retains
71
power of continuing consent. However, whether or not

Congress can revoke without explicitly reserving the power,

to
in several instances Congress has reserved the right
72
withdraw its assent when it granted consent.

A.5 Condition on Consent and Increasing Congressional
Involvement

In recent years there has been a noticeable tendency
on the part of Congress to exert increased powers of super-
vision and control over compacts and compact agencies. with

increasing frequency, Congress has included conditions in its
consents to interstate compacts, such as a reservation to
73
amend, alter or repeal" its resolutions of consent. Also

common in compacts which affect navigable waters are reser-

vations of the authority and jurisdiction of the United States
74
over the water and area involved. Other conditions imposed

by Congress include limitations on the duration of its con-

sent. Congress may restrict the compact agency-by limiting

its activities to its enumerated functions and requiring con-
gressional consent fo each new and additional duty imposed
75
on the agency by the signatory states. In the past two
decades, members of Congress have amended bills granting, con

sent to compacts by adding provisions giving Congress and its

105

committees the right to examine all books, records,-and

papers pertaining to the-activities and operations under the
76
compacts. Congress has justified these efforts at greater

federal control as a necessary protection of federal authority
from encroachment by states.77
The issueof the legitimacy of these congressional
actions came to the forefront in the early 1960's in a case
involving the Port of New York Authority. 'In 1960 the Authorit
y
..announced plans to, build a jetport in New Jersey, leading a
House Judiciary Subcommittee to begin investigating charg es
78
that the proposal overstepped the Authority's powers. The

committee issued subpoenas seeking the production of documen-
79
tary evidence concerning the agency's operations and activities.

@The Authority's Executive Director, Austin Tobin, refused to

answer the subpoenas, arguing unsuccessfully that Congress

could scrutinize compacts only prior to authorizing them,,
after which he:was convicted of contempt of Congress. The
Court of Appeals reversed8o on technical grounds. 8.1 to avoid
82
the constitutional issue. Subsequently, the jetport plan

was shelved by the Authority and the investigation became
.unnecessary. The issue of the extent of Congress' powers to

inquire into the operation,of a bi-state agreement created

with approval of Congress thus remains somewhat unsettled.

The Supremacy Clause has been interpreted to mean that

any state action encroaching upon anarea, of federal compe-

tence may be to that extent preempted by the superior power

-.:,of Congress.@.@, The difficult issue, presented by.: the Port

106 -

Authority investigation, however, as one Commentator noted
is whether Congress can restrict the states' powers to govern
state'-concerns under a ratified compact; not whether Congres
can rightfully require periodic reports by, or conduct inves-
tigations into those compact agency operations affecting fed-

eral interests, but whether it can demand complete reports and
conduct comprehensive investigations of all activities carried

out pursuant to an approved compact; not whether Congresss can

require supplemental consent before compact agencies undertake

additional powers which might impinge federal concerns, but
whether it can require such consent when the additional acti-

vities affect matters wholly within the states own domain.83

A.5 Judicial Review of Interstate Agreements

The validity of a compact may be challenged or its obli-
85
individuals. Depending upon the parties to the action and

the nature of relief sought, suit may be brought, in state
86 87
court, lower federal court, or in the United States

88
Court. Suit may be brought for a variety of remedies to
have a compact declared invalid, to void legislation, or
prevent executive action pertaining to the subject matter of
the interstate agreement, either on the ground that it is premised
9
upon a compact whose validity is questioned.89 or that it is
90

inconsistent with a valid and operating compact.
Because of possible immunities or defenses which may be

available to certain types of defendants, it is useful to group

cases involving compact litigation into threecategories. The
first includes suits against an individual, brought either by

the state or by another individual. In this context a plain-

tiff can test the validity of a compact or the subsequent
legislation*or executive action in a suit against a private
91
individual or to prevent an executive officer from enforcing
the compact or subsequent legislation. 92 Such a suit may be

brought in either state or lower federal court. The validity

of state legislation alleged to be inviolation of.a valid
.compact also can be raised as a defense in a suit brought in any
court by a state against a private defendant. 93

In any-suit brought against an official, however, it is
important to note that the defendant may be able to claim" im-

munity. In Lake Country Estates, Inc. vs. Tahoe EeZional
Planning Agency, 94. individual plaintiffs brought suit against
the compact agency, individual members of the agency and its
executive director alleging that an ordinance enacted by the
authority (TRPA) destroyed the value of the plaintiffs' prop-
erty in violation of the Civil Rights Act, 42 U.S.C. Section
@1983, and the Fifth-and Fourteenth Amendments. The Supreme

Court held that to the extent the individual defendants had

acted in a legislative capacity, they were immune from lia-
bility for damages under 42 U.S.C. Section 1983. 95 Although

the Court did not,find it necessary to address the issue, the

.Ninth Circuit had suggested that the officers also might be
given the same qualified executive immunity given state executive
96
officers.
-108

The second type of suit is an action brought by an indi-
vidual against a state. Although this prohibited by the
principle of sovereign immunity and the Eleventh Amendment, 97

a suit to restrain a state officer from enforcing an unconsti-
tutional statute is not barred bacause is not considered a
suit against the state0. 98 This applies in a suit to restrain

a state official from carrying out a compact when the compact

itself is alleged to be unconstitutional.

An individual plaintiff may be able to maintain a suit

against the interstate compact agency when he cannot maintain
his cause of action against the state. In Lake Country Estates,

the Supreme Court found that the TRPA_ was not immune from suit
under the Eleventh Amendment. 99 The Court considered the

states' intentions in creating the TRPA, the terms of the com-
pact, the TRPA's actual operations and completed that there

was no reason to believe that the states had sructured the new
agency to enable it to enjoy the special Constitutional pro-
tection given the states by the Eleventh amedment. 100
The third type of suit involves on, by one signa
tory state against another. The Supreme court can hear a
suit brought by one state against another challenging the

validity of the latter's activities in regard to the subject

matter of the compact,101 or to compel action by that state's
executive officers 102 or legislators. 103 In such a suit neither
the proscriptions of the Eleventh Amendment for the Principles
104
of sovereign immnity apply.

-109-

FOOTNOTES

1. 148 U.S. 503, 519 (1893). the Court expressly
applied this dictum in a holding for the first time in New
Hampshire vs. Maine. 426 U.S. 363 (1973).
2. "Legal Problems Relating to Interstate Compacts,"
23 Iowa L Rev. 618, 623 (1938).

3. McHenry County vs. Scott, 37 N.D. 59, 163 N.W.
540 (1917).

4. Union Branch Railroad vs. East Tennessee Railroad,
14 Ga. 327(1853).

5. See, e.g. Colorado River Compact, Arizona vs.

California, 292 U.S. 341 (1933).

6. see, e.g. , People vs Central Railway. 42 N.Y.

283 (1870).
7. See, e.g., Virginia vs. Tennessee, 148 U.S. at

518-19. "if Virginia should come into ownership of land in
New York which the latter state might desire...... would

hardly be deemed essential ... to obtain the consent of Congress
to make a valid agreement to purchase the land
8. 35 Col. L. Rev. 76, 77-78 (1935).
9. The Supreme Court., however, has stated in dictum

that reciprocal legislation could be subject to congressional

consent, since "the mere form of the interstate agreement can-
not be. dispositive," and agreements readed through reciprocal
legislation might present opportunities for an interstate union

which could threaten federal supremacy similar to the threats

-110-

inherent in a "compact"'. United States Steel Corporation vs.

Multistate Tax Commission,, 99 S. Ct. 799, 811 (1978).

10. See Virginia vs. Tennessee, 148 U.S. at 520.

11. Dover vs. Portsmouth Bridge, 17 N.H. 200 (1845).

See St. Louis and Francisco Ry. vs. James, 161 U.S. 545,

562 (1896).

12. Engdahl, "Characterization of Interstate Agreements:
When is a Compact Not a Compact?" Mich. L. Rev. 64:63,69 (1965)
See United States Steel Corporation vs. Multistate Tax Commission.

13. 99 S. Ct 799, 812 (1978).
14. See,a.g. United States Steel, Corporation vs.
Multistate Tax Commission, 99 S. Ct. 799 (1978); North Carolina
VS. Tennessee, 235 U.S. 1 (1914); Wharton vs. Wise, 153 U.S. 155

(1894); State vs. Doe, 149 Conn. 216, 178 A.2d 271 (1962);
Duncan vs. Smith 262 S.W.2d 373 (1953); McHenry County vs.

Brady, 37 N.D. 59, 163 N.W. 540 (1917).
15. See Ferguson, "The Legal Basis for a Southern
University-Interstate,Agreements Without Congressional Consent

38 Ky. L.J. 847 (1950).
16. Consented to by Congress Act of August 30, 1954,
Ch. 1089, 68 Stat. 682.
17. Consented to by Congress, Act of August 8,1953,

Ch. 380, 67 Stat. 490.
18. Consent was not requested for the Compact on.
juveniles, the Corrections Compacts, or the Welfare Service's
Compact. See also, council of State Governments, 1964-1965

Book of the States 276-77; 1962-63-The Book of the States 268;

1960-61 The Book of the States 245-46.

19. See PettX 'vs. Tennessee--Missouri Bridge Com-

mission, 359 U.S. 275 (1959); Delaware River Joint Toll

Bridge Commission vs. Colburn, 310 U.S. 419 (1940).

20. Ham vs. Main-New Hampshire Interstate Bridge

Authority, 92 N. H. 268, 30 A.2d 1 (1942).

21. Virginia vs. Tennessee, 148 U.S. at 519.

22. United States Steel Corporation vs. Multistate

Tax Commission, 99 S. Ct. at 812-8.13.

23. Id. at 813.

24. An Agreement between the Governor of the Common-

wealths of Virginia and the State of Maryland concerning

Management of the Resources and Activities of the Chesapeake

Bay and Coastal Areas.

25. Maryland Senate Joint Resolution No. 75; Virginia

Senate Joint Resolution No. 101.

26. See "Legal Problems Relating to Interstate
Compacts," 23 Iowa L. Rev. 618, 6:@4-27 (1938).

27. Prior to state action, consent may be given ex-

pressly by Act or by Joint Resolution. Consent following state

action may be granted expressly by Act, by Joint Resolution,

by ratification of a state constitution which embodies the

compact, or inferred from a compact between Congre ss and a

state.. See "The Interstate Compact--A Survey," 27 Temple

Law Quarterly, 320, 323 (1953).

28. State vs. Cunningham, 102 Miss. 237,.243..,.59

So. 76, 78 (1912). Congress frequently grants a preliminary

authority to states to negotiate an agreement, reserving the
right tozonsent. -See, e.g., 66 Stat. 737 (1952).

-112

Ali

29. See, e.g., 64 Stat. 568 (1950).
30. Congress first enacted a general consent act in
1911. "Consent...is given to each of the several states Of the

Union to enter into any agreement or compact, not in conflict

with any law of the United States, which any other State or

States for the purpose of conserving the forests and the wate

supply of the States entering into such agreement or compact.

86 Stat. 961 (1911), 16 U.S.C.*�522 (1946).

3 1'. See Ferguson, "The Legal Basis for Southern
University--Interstate Agr eements Without Congressional Assent,'.'..

38 Ky. L.J. 347, 356-57 (1950) .
E.g., In Wharton vs. Wise, 153 U.S. 155, 173 (1894),

the Court stated that the compact in question had not been

forbidden by the Articles of Confederation, continued in force

after the adoption of the Constitution and received the consent

of Congress by the adoption or approval of proceedings taken

under it.

32. U.S. Const. Art. 1, 7, Cl. 13.

33. President Franklin Roosevelt refused to approve

the Act consenting to the Atlantic States Marine Fisheries

Compact. The compact was subsequently redrafted and signed.

34. For example, until 1943 consent to the Interstate

Oil Compact was limited to two year periods, at which time the

consent period was extended to four years.

35. "Congress, Compacts, and Interstate Authorities,"..
26 Law and Contemporary Problems.6820 685 (1961).
36. Note. 35 -Col. L. Rev. '76, 84-85 (1935).

113

37. Changes in circumstances which give rise to pre-

viously non-existent political overtones might lead Congress to

believe the "compact" had become a treaty, and fraud in the
enducement of congressional consent would probably render the

agreement voidable. Id. At n. 61.

38. See 41 Stalt. 1447 (1921); 45 Stat. 300 (1928);

45 Stat. 1502 (1929).

39. Cf. Hambutg American Steamship Co. vs. Grube,

196 U.S. 407 (1905). (Consent to an agreement regulating state

jurisdiction over boundary waters did not extend exclusive fed-

eral admiralty jurisdiction to the area affected by the compact).

40. Pennsylvania vs. Wheelingand Belmont Bridge Co.,

18 How. 421, 430 (U.S. 1855); Missouri vs..Illinois., 20 0 U. S.

496, 519 (1906).
41. See, e.g.,'"Some Legal and Practical Problems of
the Interstate Co@apact," 45 Yale L.J. 324 (1935)-@

42. Kansas City vs. Fairfax Drainage District, 84

F.2d 357 (10th Cir. 1929); cert. denied, 281 U.S. 722 (1930).

43. Couch vs. State, 140 Tenn. 156, 20 3 S.W. 831 (1918).

,.44. Hinderlider vs.-LaPlata River and Cherry Creek

Ditch Co., 304 U.S. 92 (1938); Poole vs. Fleeger, 36 U.S. 185 (1837).

45. "Some Legal and Practical Problems of the Inter-

state Compact," 45 Yale L.J. 324, 329 (1935).

.46. Virginia,vs. West Virginia, 220 U.S.1 (1911);
Virginia,vs..West Virginia, 78 U.S. (11 Wall.) 39 (1870)
47. Missouri vs. Illinois, 200 U.S. 496, 519 (1906);

Green vs. Biddle,.21 U.S. (8 1,69 (1823); Pennslyvania

vs. Wheeling and Belmont Bridge Co., 54 U.S. (13 How.) 508,.565

114-

(1852); 59 U.S. (18.How.) 421, 430 (1856); C.T. Hellmuth vs.
Washington Metro. Area Trans. 414 F. Supp. 408 (D. Md. 1976).
48. For a discussion of the application of this.doc-
trine when the compact is concerned with essentially private
rights or with "political rights", see 45 Yale L.J. at 329-30.

49. Pennsylvania vs. Wheeling Bridge Co., 54 U.S.

(13 How.) 518 (1852).

- 50., This would seem to be true under the "law of the

Union" doctrine. See text accompanying note 55, infra. For a

discussion of the effects upon an interstate compact of a fed-
eral statute enacted following Congress' ratification of the

compact, see text accompanying notes 65 -66, infra.

51. "Legal Problems Relating to Interstate Compacts,",'

23 Iowa L. Rev. 618, 628 (1938).

52. The effect of subsequent consent in both specific

and general form, even if it does act to repeal prior inconsis-

tent federal statutes, would be limited in any case by the re-

striction of the Fifth Amendment where rights have become vested

under the statute.

53. Hijo vs. United States, 194 U.S. 315, 324 (1911).

54. Engdahlf "Construction of Interstate Compacts--

A Questionable Federal Question," 51 Va. L. Rev. 987 (October

1965).
55. The Court had first advanced this theory in the

mid-nineteenth and early twentieth centuries in such cases as
.Missouri vs. Illinois, 200 U.S. 496, 519 @1906);Pennsyjvania
vs. Wheeling 'BridFe@ 'Co. ,54 U. S. (13 How.) 518, 555-56
-7-7

-115

(1851); Green.vs. Biddle, 21 U. S'. (8 Wheat) 1 (1823).

the Court rejected the doctrine in Hinderlider vs.
LaPlata River and Cherry 'Greek Ditch Go., 304 IJ.S, 92

(1938), but later overruled. the decision tri Delaw@te ',River

Joint Toll Bridge Commission vs Co-lbVrn, 310 U.S. 419

(1940).

It should be apparent that,compacts are not "acts of

Congress." They are agreements between states, and unlike

federal.statutes in content, form, or administration. In

some cases, a federal statute in the field would be uncon-

stitutional, as in the adjustment of a state bounda=7. The

"law of the Union" theory.is also inconsistent with the

concepts that Congress' consent is only a limitation on

state power and that state constitutions restrict the com-

'pacting powers of the states. See, Rho-d6 'Island vs.' Massa-.

chusetts.. 37 U.S. (12 Pet.) 1 (1838).

In some instances, however, the "law of the Union"

theory might be justifiable.. For example, if the dispute

is between two.states over which of two possible interpre-

tations should be given the agreement, the supremacy clause

of the Constitution might properly be used on the theory

that Congress intended to consent to only a particular

interpretation:. See Lessee of Marlott vs. Silk, 36 U.--S.

(11 'Pet.) .1 (1837).

56. Dyer vs. Sims, 341 U.S. 22 (1951); Delawari

Bridge Commission vs. Colburn, 310 U.S. 419 (1940). "[T]he

-116

construction of a compact sanctioned by Congress. involves
a federal 'title, right, privilege, or immunity' which when
specially set up and claimed'in a state court may be reviweed
on certiorari....". Colburn at 427. For a criticism of the
Colburn rule, see Engdahl,supra, note 54,

57. Petty vs. Tennessee Missouri bridge Commission,
359 U.S. 275 (1958).

58. Merchants Bank vs.* Pennsylvania, 167 U.S. 461

(1896).
59. Post vs. Supervisors, 105 U.S. 667 (1881).

60. 341 U.S. 22 (1951).

61. State ex rel Dyer vs. Sims, 58 S.E. 2d 766

(W.Va. 1950).

62. Ladendorff, "Interstate Compacts An Exception

to the Rule of Supremacy.of State Court Decisions," 7 Intra.

L. Rev. (N.Y.U.) 249 (1951).

63. Dyer, 341 U.S. 15,28.

64. See text accompanying notes 47,48,supra.

65. 21 U.S. (8 Wheat.) 1 (1823).

66. One commentator has noted, however, that the

contract clause was probably intended to apply only to
contracts between private parties and should not be ap-

plied to agreements between sovereigns. The clause was

intended to protect individuals from state action, not to
protect one state from-another state"s attempts to termi-

nate an interstate agreement. Note, "Legal Problems Relating

-117-

to Interstate Compacts," 23 Iowa L. Rev. 618,630 (1938).
67. Courts do uphold abrogations of federal

treaties by Congress, but this is on the basis that the

Constitution's supremacy clause puts statutes and treaties

on an equal basis. In the basence of such a clause in the

organic law of a sovereign, however, the Supremp- Court

has recognized the general international law rule. As

there is no clause putting compacts and state legislation

on a parity, the general rule of international'law should

apply. See Note, 23 Iowa L. Rev. at 631.

68. Georgetown vs. Alexander Canal Company, 37 U.S.

(12 Pet.) 91, 95-96 (1831).

.69.' 59 U.S. (18 How.) 421 (1855).

70. Petri vs. Creelman Lumber Company, 199 U.S.

487 (1899).

71. See text accompanying notes 34-35,.supra.
72. See, e.g., 36 Stat. 961 (1911); 16 U.S.C. Sec.
5521(1927).
-73. See, e.g., resolutions approving the Port of New

York Authority, Ch.-77, 42 Stat. 174 (1921); Ch. 277, 42

,Stat. 822 (1922).

74. E.g., Port of New York Authority resolutions,

note 63, supra.

75. E.g., Wabash Valley Compact, 73 Stat. 698 (1959);

Tennessee Valley River Basin Water Pollution Compact, 72

Stat. 828 (1958); Bi-state Development Agency Compact, 64

118

Stat. 568 (1950).
76. See, e.g., Wabash Valley Compact, note 65 supra,
Tahoe Regional Planning Compact, 83 Stat. 360 (1969)
77. This was the announced objective of the House
Judiciary Committee which investigated the Port of New
York Authority. "In imposing ... restriction(s), Congress

has doubtless been motivated by a desire to protect the

exercise of its constitutonal.responsibilites against
erosion by fait accompli and the possible application
thereto of a doctrine of implied consent," Celler, "Con-
gress, Compacts and Interstate Authorities",'26 Law &

Contemp. Prob. 682, 689 (1961). See United States vs.
Tobin, 195 F. Supp. 588 (D.D.C. 1961); rev'd 306 F.2d 270

(1962), cert. denied, 371 U.S. 902 (1962).

78. The subcommittee believed that Congress had

jurisdiction to investigate as the Authority had been
created by a compact requiring Congres's approval.

"Inquiry Before Subcommittee No. 5 of the House

Committee on the Judiciary on the Return of Subpoenas,
Port of New York Authority," 86th Cong. 2d Sess. (1960).

79. The records sought concerned the internal
managing, financing, and decisional processes' of the

Authority. Celler, "Congress, Compacts and Interstate

Authorities," 26 Law & Contemp. Prob. 682, 696 n. 103

(1961).

80. Tobin vs. United States, 306 F,2d 270 (1962).

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81. The ground was that Congress had not authorized
as broad an-investigation as the subcommittee had attempted.

Tobin, 306 F. 2d at 276.

82. "A contempt of Congress prosecution is not the

most practical method of inducing courts to. answer- broad
questions-when the answers sought necessarily demand far-
reaching constitutional ad udications. To avoid such consti-
tutional holdingsis.our duty.... (W]e have adopted the policy...
to obviate the necessity of passing on serious constitutional
questions.."306 F.2d at 274-75.

83. Engdahl, "Characterization of Interstate Arrange-

ments: When is a Compact Not a Compact?" 64 Mi ch. L. Rev. 63,

72 (1965).

84. E.g., Virginia vs. West Virginia, 246 U.S. 565

(1918); South Carolina vs. Ceorgia, 93 U.S., 4 (1876).

85. E.g., Green vs. Biddle, 21 U.S. (8 Wheat..) 1 (1823).
86. E.g., State.vs Cunningham, 102 Miss. 237, 59 So..

76 (1912).

87. E.g., League to Save Lake Tahoe vs. Tahoe,Regio'nal
Planning Agency, 507 F. Supp. 517 (9th Cir. 1977).
88. The Supreme Court has original jurisdiction in

suits in which a state is a party. U.S. Const. Art. 111, �2.

89.. La Plata River and Cherry Creek Ditch Co. vs.

.Hinderlider, 93 Colo. 138, 25 P. 2d 187 (1933), rev'd on

other grounds, 304 U.S. 92 (1937).

90. Kentucky Union Co. vs. Kentucky, 219 U.S. 140 (1910).

91. Green vs. Biddle, 21 U;S. (8 Wheat.) 1 (1823).

120

92. Jacobson vs. Tahoe_Regional Planning Agency, 566
F.2d 183 Oth Cir. 1977), aff'd in part, sub nom; Lake Country.
Estates vs.,Tahoe Regional PlanningAgency, 99 S. Ct. .1171 (1979).
93. Kentuckv Union Co. vs. Kentucky,'219 U.S. 140 (1910).
94. '99 S. Ct. 1171 (1979).

95. Id. at 1179. The Court found no reason why
11regional legislators" should not be accorded the same immunity
as their state and national counterparts. Id. A suit against
state or nationa-i legislators may not be maintained in either
state or federal courts. Tenney vs. Brandhove, 341 U.S. 367.
(1951).

96. JacobsonIvs. Tahoe Reg@iLonal Planning Agency, 566

F. 2d 1353$1 1365 (9th Cir. 1977). The Ninth Circuit remanded

on this issue and suggested as a guideline that the individuals
charged could not receive executive immunity if.they had known

or should have known the action taken would violate constitu-
tional rights, or if they took the action with malicious intent

to deprive the plaintiffs of their constitutional rights. Id.,

citing Wood vs. Strickland, 420 U.S. 308 (1974).

97 "The Judicial power of the United States shall not

be construed to extend to any suit in law or equity commenced
or prosecuted against one of the United States by Citizens of

another State..."

98. Ex Parte Young, 209 U.S. 123 (1908).

99. 99 S. Ct. at 1178.

100. Id. at 1177. Even if the states had so intended

that the TRPA have immunity, such intent would not be binding

unless Congress had concurred. Id.

121

101. Kentucky vs. Indiana, 281 U.S. 163 (1930);
Pennsylvania vs. West Virginia, 262 U.S. 553 (1923).
102. E.g., KentuchX vs. Indiana, 281 U.S. 163 (1930).
103. Virginia vs. West Virginia, 246 U.S. 565 (1918).
In 1862, West Virginia assumed by compact part of Virginia's
public debt. Updn subsequent refusal to satisfy this obliga-
tion,, Virginia obtained a judgment in the Supreme Court. When
West Virginia still took no action to pay the debt, the Court.
asserted its power to coerce action by West Virginia-, presumably
through the other branches of the federal government, and the

judgment was then paid.
104. Kentucky vs. Indiana, 281 U.S. 163 (1930);
Pennsylvania. vs. West Virginia, 262 U.S. 553 (1923).

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