Applicability of the Compact Clause to Use of Multiple State

Entities Under the Water Resources Planning Act

A greem ents betw een' the federal g o vernm ent and a state are not subject to congressional 

consent under the C om pact Clause, U .S. C onst. A rt. I, § 10, cl. 3; n o r are all agreem ents betw een o r am ong states so subject, but only those w hich en cro ach upon or 

interfere w ith th e au th o rity o f the federal governm ent.

States m ay engage co o p erativ ely in a broad range o f planning activities under the W ater 

R esources P lanning A ct w ithout obtaining congressional consent, so long as they 

im pose no legal obligation o r disability on governm ental o r private parties.

C ongress has given ad v an ce consent to planning activities o f the statu to ry river basin 

com m issions, but not to those o f interagency com m ittees o r m ultiple state entities.

December 30, 1980

MEMORANDUM OPINION FOR THE ACTING DIRECTOR, 

UNITED STATES WATER RESOURCES COUNCIL

This responds to your request for our opinion regarding the constitutionality, under the Compact Clause,* of using federal-state interagency 

committees or multiple state entities as sponsors for the preparation of 

Regional Water Resource Management Plans. For the reasons stated 

below, we conclude that there is a broad, although not unlimited, range 

of planning activity that can be undertaken without the consent of 

Congress. Consent is required only when two or more states agree 

among themselves to impose some legal obligation or disability on state 

or federal governments or private parties.

I.

Pursuant to the Water Resources Planning Act, 42 U.S.C. § 1962, 

your agency coordinates and funds the development of comprehensive 

Regional Water Resource Management Plans (plans). The Act authorizes establishment of river basin commissions, comprised of members 

from state, interstate, federal, and international agencies. The Commissions enter funding contracts with your agency to act as plan sponsors. 

They develop the various plan elements, submit draft plans to a wide 

variety of interested parties for comment, and prepare final plans re-

•N o t e : The Com pact Clause, U.S. Const. Art. I, § 10, cl. 3, provides that “(n]o State shall, without 

the consent o f Congress . . . enter into any Agreement or Com pact with another State, or with a 

foreign power. . . ." Ed.

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fleeting the comments received. They approve final plans on a consensus basis, i.e., with all members either voting affirmatively or abstaining, 

and transmit approved plans to your agency and participating states. 

Your agency reviews the plans 1 and forwards them to the Office of 

Management and Budget, which reviews the plans and transmits them 

to Congress.

Existing plans are not legally binding on the participants or private 

parties. At the state level, a plan is implemented when individual states 

determine to follow its recommendations in budget and other matters. 

Our understanding is that states usually do abide by plan provisions, 

especially since they participate in plan development and exercise veto 

authority during the approval process, but that individual states do 

from time to time refuse to follow a given plan in some respects. At the 

federal level, implementation occurs by application of your agency’s 

Consistency Policy, which requires the Army Corps of Engineers, the 

Department of Agriculture, and the Department of the Interior to 

inform the Office of Management and Budget of those particulars in 

which certain of their programs and projects are inconsistent with 

approved plans and to provide reasons satisfactory to the President for 

any inconsistency.2 The strictures the Consistency Policy imposes on 

the federal government result from your agency’s voluntary action.

To date, river basin commissions have been established for areas 

covering only about half of the Nation. You have sought to remedy 

this deficiency, in part, by contracting with agencies established by 

interstate compact. More recently, you have begun exploring the possibility of contracting with interagency committees or other multiple 

state entities to sponsor plans for regions of the United States not 

presently covered by commissions or compact agencies. Interagency 

committees are comprised of state and federal agencies; they help 

coordinate government programs but possess few, if any, other 

powers.3 Other multiple state entities could assume a variety of forms.4 

Interested governmental agencies could take the leadership role. Alternatively, the states could coordinate their efforts, with either a state or 

federal agency joining together to establish an interstate nonprofit corporation along the lines of a council of governments.

1 See W ater Resources Council, Review o f Regional W ater Resource M anagement Plans (1980).

2 See W ater Resources Council, Policy Statement No. 4: T he Utilization o f Com prehensive Regional W ater Resource M anagement Plans (1978).

3 A t least three interagency committees are presently operating: the Arkansas-W hite-Red Basins 

Interagency Committee, the Pacific Southwest Interagency Committee, and the Southeast Basins 

Interagency Committee. W ater Resources Council, Im proving the Planning and M anagement o f the 

Nation’s W ater Resources 53-54 (1980).

4 See Report to the W ater Resources Council, Potential Interstate Institutional Entities for W ater 

Resource Planning 12 (1980).

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II.

The comprehensive planning process can aptly be described as an 

exercise in “cooperative federalism.” 5 Each step involves complex 

relationships between the federal government and the states and among 

the states inter se. In determining whether congressional consent is 

required under the Compact Clause, it is necessary to examine closely 

the nature and legal impact of the various agreements involved in the 

planning process.

We believe that agreements between the federal government and a 

state or states need not be submitted for congressional consent. The 

states, which possess all powers of government not withdrawn from 

them by the Constitution or delegated by the Constitution to the federal 

government,6 are not barred by the Compact Clause from entering into 

individual or joint agreements with the United States. To the contrary, 

the Compact Clause, by prohibiting unconsented agreements with other 

states or with foreign powers, at least by negative implication contemplates that federal-state agreements need not be submitted for consent. 

The Framers may well have omitted federal-state agreements because 

they believed that in such cases the party negotiating on behalf of the 

United States could protect the federal interest.7 It would also run 

counter to the fundamental constitutional principle of separation of 

powers to give either house of Congress the equivalent of a veto over 

agreements concluded by an executive branch agency. 43 Op. Att’y 

Gen. No. 25 (1980).** Because the Compact Clause is inapplicable to 

federal-state agreements, your agency need not obtain consent for its 

funding contracts with regional sponsors, or for any other obligations, 

such as the Consistency Policy, which might be included as express or 

implied terms of such contracts.

The planning process also involves agreements among the states inter

se. Not all such agreements are subject to the Compact Clause, but only 

those “tending to the increase of political power in the States, which 

may encroach upon or interfere with the just supremacy of the United 

States.” Virginia v. Tennessee, 148 U.S. 503, 519 (1893).8 Interstate 

agreements interfere with federal power in this sense if: (1) they involve 

a subject matter which the Congress is competent to regulate, see

5 C f G rad, Federal-State Compact: A New Experiment in Cooperative Federalism. 63 Colum. L. Rev. 

825 (1963).

8 U.S. Const. Amend. X.

7 T he records o f the Constitutional Convention furnish no light on the meaning or purposes of the 

C om pact Clause. For discussions of the historical meaning o f the Clause's terms, see generally Frankfurter & Landis, The Compact Clause o f the Constitution: A Study o f Interstate Adjustments, 34 Yale L.J. 

685 (1925); Comment, What Did the Framers o f the Federal Constitution Mean by "Agreements or

Compacts?" 3 U- Chi. L. Rev. 453 (1936).

• • N o t e : T he cited A ttorney G eneral’s opinion is reprinted* in this volume at p. 30 supra. Ed.

8 Accord. United States Steel Corp. v. Multistate Tax Commission. 434 U.S. 452, 467-71 (1978); New

Hampshire v. Maine. 426 U.S. 363, 369 (1976); Stearns v. Minnesota. 179 U.S. 223, 246 (1900); Louisiana

v. Texas, 176 U.S. 1. 17 (1900); Wharton v. Wise. 153 U.S. 155, 169-171 (1894).

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Wharton v. Wise, 153 U.S. 155, 171 (1894); and (2) they purport to 

impose some legal obligation or disability, see United States Steel Corp.

v. Multistate Tax Commission, 434 U.S. 452, 467-71 (1978).

These principles permit the states to engage in a broad range of 

planning activities without obtaining congressional consent. Although 

water resources planning is undoubtedly within congressional power 

under the Commerce Clause, see Kaiser Aetna v. United States, 444 U.S. 

164, 173 (1979); United States v. Appalachian Electric Power Co., 311 

U.S. 377, 426-27 (1940), many aspects of the planning process do not 

impose a legal detriment on state or federal governments or private 

parties. The states may agree, without congressional consent, to create, 

fund, and participate in a regional sponsor empowered to prepare and 

adopt a plan, so long as each state is free to accept or reject a plan or 

any of its provisions and has the unfettered power to withdraw from 

the regional sponsor. See United States Steel Corp. v. Multistate Tax

Commission, 434 U.S. at 473-78. Furthermore, nothing prevents the 

states, acting independently, from adopting a plan as legally binding 

within their own territories. The test is whether the state action is truly 

independent or whether it is made instead in return for reciprocal 

action by other states. Congressional consent would be required, however, for any plan calling for joint construction or operation of any 

facility. Similarly, consent would be required if the regional sponsor 

possessed any legally effective authority, regulatory or otherwise, to 

ensure the plan’s implementation by state or federal governments or 

private parties.

The Weeks Act, 16 U.S.C. §552, grants advance congressional consent to interstate compacts, not in conflict with federal law, whose 

purpose is “conserving the forests and the water supply of the States 

entering into such agreement or compact.” Although broad in scope, 

the Weeks Act does not amount to a congressional abandonment of its 

duty to review all interstate compacts.9 Congress may delegate its 

lawmaking authority so long as it provides some articulated standard to 

guide agency action. By analogy, so long as it defines the category with 

some specificity, Congress should be able to determine that a given 

type of interstate compact poses so little threat to federal interests that 

advance categorical consent may be granted. The Weeks Act consents 

to the preparation and implementation of a forests and water supply 

element as an initial stage of the comprehensive planning process. But it 

does not consent to broader plans designed for other purposes, such as 

regulating navigation, controlling floods, conserving fish and wildlife, 

abating water pollution, and enhancing water-related recreation.10

9 But see Muys, Interstate Compacts and Regional Water Resources Planning and Management,

6 Natural Resources Law yer 153, 174 (1973).

10 See W ater Resources Council. Im proving the Planning and Management of the N ation's W ater 

Resources 30 (1980).

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The Water Resources Planning Act, we believe, grants advance 

congressional consent to plans drawn up by river basin commissions, 

since in authorizing creation of these agencies Congress was careful to 

protect federal interests.11 But the Act does not similarly protect federal interests when plans are sponsored by interagency committees or 

multiple state entities.12 Indeed, the Act nowhere specifically mentions 

the possibility of such agencies acting as plan sponsors.13 Although it 

appears that federal participants in some of these agencies might adequately protect federal interests in a given case, it is highly doubtful 

that Congress consented in advance to all agreements made by regional 

sponsors, other than river basin commissions, in which the federal 

interests happen to be represented “adequately.”

III.

Much can be accomplished without congressional consent. A multiple state entity or an interagency committee may be formed, funded, 

and authorized to sponsor a plan, so long as participating states retain 

unfettered discretion to withdraw from the arrangement. The regional 

sponsor may promulgate a plan, so long as it is merely advisory in 

nature and there is nothing to stop individual states from independently 

adopting the plan as legally binding within their territories. A forest 

and water conservation element could be prepared that imposes legal 

strictures on the affected states or private parties. The federal government may choose to impose strictures on itself. Indeed, there is no legal 

obstacle to the development of plans which would require congressional consent when implemented. All that is required is that consent to 

such plans be obtained at some time before they become effective in 

ways which impair or threaten to impair a federal interest.

L a r r y L. Sim m s

Deputy Assistant Attorney General

Office o f Legal Counsel

11 Title II of the A ct, 42 U.S.C. § 1962b, creates a detailed scheme for allocating state and federal 

pow er within a river basin commission. R iver basin commissions are established by the President, at 

the request o f a state or your agency, but only with the concurrence o f at least one-half o f the affected 

states. § 201(a). T he chairm an of a river basin commission is a federal representative chosen by the 

President, § 202(a), while the vice chairman is chosen by the states. § 203(b). The members include 

representatives from states, federal departm ents or agencies, com pact agencies, and international 

commissions. § 202(b)-(c). R iver basin commissions operate on a consensus basis, thus giving both 

federal and state representatives veto pow er over agency action. § 203(d). Finally, with respect to 

plans prepared by river basin commissions, the A ct sets forth a detailed procedure for comment by 

affected parties, review by your agency, and transmittal to the President and the Congress. §204(3).

12 W ith respect to com pact commissions, the original congressional consent to the interstate com ­

pact should extend to the com prehensive planning process so long as the original com pact granted the 

com pact commission pow er to engage in this type o f planning.

13 You have not asked us to examine the statutory bases for your agency’s authority to designate 

bodies other than river basin commissions as regional sponsors, or for its pow er to subject plans 

prepared by these bodies to the review procedures ordinarily given river basin commission plans.

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