Interstate Compacts: An Overview of the Structure and Governance of Environment and Natural Resource Compacts
Published: 2007-04-03T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: Interstate compacts are legal agreements between states that are designed to resolve concerns that transcend state lines, such as allocating interstate waters. While some compacts assign their administration to existing state agencies, compacts requiring greater coordination among states may establish an interstate agency, typically called a commission, to administer their provisions. Congress must give its consent to compacts that affect the balance of power between the states and the federal government. An example of a congressionally approved environment and natural resource compact is the Tahoe Regional Planning Compact, which created the Tahoe Regional Planning Agency (TRPA) to administer its provisions. For such compacts, GAO determined (1) the organizational structures, powers and authorities, and dispute resolution and public accountability mechanisms; (2) the extent to which concerns have been raised about the structure and governance of compacts that have commissions; and (3) how the structure and governance of TRPA compares to those of other similar compact commissions. GAO reviewed 59 congressionally approved compacts and surveyed those 45 that had commissions.
section_title: What GAO Found
paragraphs: Forty-six of the 59 congressionally approved environment and natural resource compacts that GAO reviewed had established interstate commissions to administer the compact, while the remainder relied on existing state agencies. The 46 compacts with commissions varied in their organizational structure, powers and authorities, and means of resolving disputes, but were similar in how they ensured public accountability. For example, commission size ranged from 2 to 48 members, and some commissions had regulatory authority, while others had only advisory authority. Twenty-six percent of the compacts had provisions for resolving disputes. However, about 36 percent of the commissions responding to GAO's survey reported that they had used means other than litigation to resolve disputes. Significantly more, about 94 percent, of the commissions reported having procedures for ensuring public accountability, such as holding public meetings and allowing public input. For the 13 compacts that did not have commissions, GAO found variations in their powers and authorities, and few of these compacts provided mechanisms for dispute resolution or public accountability. Interstate compact commissions reported that significant concerns about their structure and governance have rarely been raised. When concerns did arise about organizational structure and public accountability, they varied from commission to commission. However, concerns about regulatory authority largely centered on the scope of the commission's authority. In addition, a number of compact officials believed that concerns about commission structure and governance often reflected disagreements with specific commission actions rather than actual concerns about the organizational structure, public accountability, or regulatory authority of the commission itself. The Tahoe Regional Planning Agency is generally similar in organizational structure and governance to three other interstate compact commissions with comparable functions--the Columbia River Gorge, Delaware River Basin, and Susquehanna River Basin Commissions. All four commissions consist of appointed representatives, although their size and composition vary; they all have an administrative appeals process to resolve disputes, and they use similar accountability mechanisms. A major difference between the Tahoe Regional Planning Agency and the other commissions relates to the breadth of its authority regarding land use issues. This authority extends to water, air, and other natural resources, as well as public health and safety, whereas the Columbia River Gorge Commission has more limited land use authority, and the Delaware and Susquehanna River Basin Commissions have no land use authority.

section_title: Letter
paragraphs: Interstate compacts are legal agreements between two or more states that  Interstate compacts are legal agreements between two or more states that  are designed to resolve problems or concerns that transcend state lines.  are designed to resolve problems or concerns that transcend state lines.  Such compacts enable states to act jointly and collectively to devise  Such compacts enable states to act jointly and collectively to devise  solutions for matters that are beyond the authority of an individual state  solutions for matters that are beyond the authority of an individual state  but which are not within the immediate purview of the federal government  but which are not within the immediate purview of the federal government  or easily resolved through a purely federal response. Prior to the twentieth  or easily resolved through a purely federal response. Prior to the twentieth  century, interstate compacts were used almost exclusively to settle state  century, interstate compacts were used almost exclusively to settle state  boundary disputes. In more recent times, their use has expanded to  boundary disputes. In more recent times, their use has expanded to  include such diverse purposes as allocating interstate waters, developing  include such diverse purposes as allocating interstate waters, developing  regional transportation systems, and enhancing law enforcement. More  regional transportation systems, and enhancing law enforcement. More  than 200 interstate compacts exist today, according to the Council of State  than 200 interstate compacts exist today, according to the Council of State  Governments. At least 76 of these compacts are designed to address  Governments. At least 76 of these compacts are designed to address  environment and natural resource management issues such as  environment and natural resource management issues such as  conservation and environment (fisheries, forest fire protection, and water  conservation and environment (fisheries, forest fire protection, and water  pollution control), energy (low-level radioactive waste), planning and  pollution control), energy (low-level radioactive waste), planning and  development (land use planning for environment and natural resource  development (land use planning for environment and natural resource  protection), and water resource management (water apportionment and  protection), and water resource management (water apportionment and  flood control).  flood control).
To form a compact, two or more states typically negotiate an agreement,  To form a compact, two or more states typically negotiate an agreement,  and then each state legislature enacts a law that is identical to the  and then each state legislature enacts a law that is identical to the  agreement reached. Once all states specified in the compact have enacted  agreement reached. Once all states specified in the compact have enacted  such laws, the compact is formed. In some cases, if a compact affects the  such laws, the compact is formed. In some cases, if a compact affects the  balance of power between the states and the federal government or affects  balance of power between the states and the federal government or affects  a power constitutionally delegated to the federal government, it must also  a power constitutionally delegated to the federal government, it must also  obtain congressional consent. In consenting to a compact, Congress may  obtain congressional consent. In consenting to a compact, Congress may  add certain conditions, such as specifying that compact disputes be  add certain conditions, such as specifying that compact disputes be  resolved in federal courts. Otherwise, the compact’s subject matter and  resolved in federal courts. Otherwise, the compact’s subject matter and  substance are largely left to the discretion of the negotiating parties.  substance are largely left to the discretion of the negotiating parties.
When negotiating a compact, the states typically establish a framework for  administering and implementing the compact’s provisions. The framework  varies widely and depends largely on the subject matter, scope, and  complexity of the compact agreement. In some cases, the compact does  little more than prescribe certain conditions with which the member states  must comply or require the states to cooperate in furthering the purposes  of the compact. In such cases, the states often assign the compact’s  administration and implementation to existing agencies or officials within  the member states. By doing so, the states can coordinate their resources  to avoid duplicating efforts or costs, take advantage of economies of scale,  and promote more effective management of issues common to the  member states. For example, some interstate water allocation compacts  that distribute fixed quantities of water to each of the member states— such as the Snake River Compact—assign administrative responsibility to  the official in each state who is in charge of managing the public water  supply.
In contrast, some compacts involve more complex interstate matters that  require greater coordination among states, such as the disposal of low- level radioactive waste. In such cases, states are more likely to delegate  authority to an interstate agency—typically called a commission—that is  created to administer and implement the compact’s provisions. The  nature of each commission’s authority varies and can range from advising  states on interstate problems to regulating activities of mutual concern. In  general, compact commissions consist of representatives of the member  states, typically called commissioners. The commissioners are usually  appointed by elected officials or serve by virtue of their elected position,  such as governor, or their role as a federal, state, or local government  official. For example, to administer the provisions of the Tahoe Regional  Planning Compact, the states of California and Nevada created the Tahoe  Regional Planning Agency (TRPA), which includes representatives from  the two states and the federal government. Many compact commissions  are funded, in whole or in part, by the member states. Although the federal  government may provide grants or participate in some compact programs,  compact commissions generally operate independently of the federal  government. Since interstate compact commissions are neither federal in  nature nor state in scope, they occupy what some have referred to as a  “third tier” of government.
Because of your interest in congressionally approved interstate compacts  that address environment and natural resource issues and, in particular,  the Tahoe Regional Planning Compact, this report describes (1) the  approaches used to administer congressionally approved environment and  natural resource compacts, including their organizational structure,  powers and authorities, and mechanisms for resolving disputes and  providing public accountability; (2) the extent to which concerns have  been raised regarding the structure and governance of those compacts,  like the Tahoe Regional Planning Compact, that have commissions; and  (3) specifically, how the structure and governance of TRPA compares to  those of other similar compact commissions.
To conduct this review, we identified and reviewed 59 congressionally  approved interstate compacts that address environment and natural  resource management issues, interviewed compact experts and officials,  and surveyed compact commission officials on the approaches used to  structure and govern their compacts and the extent to which concerns  have been raised regarding these approaches. We surveyed officials from  only 45 of the 46 compacts that established commissions, because 1  commission was not yet operational at the time of our review. We received  responses from 36 of the 45 compact commissions we surveyed, for a  response rate of 80 percent. In addition, using the survey results, we  identified 3 compact commissions that have functions similar to those of  TRPA: the Columbia River Gorge Commission, the Delaware River Basin  Commission, and the Susquehanna River Basin Commission. To compare  TRPA to these three commissions, we interviewed commission staff in  Stateline, Nevada; White Salmon, Washington; West Trenton, New Jersey;  and Harrisburg, Pennsylvania. In addition, we reviewed commission  documents and activities, and interviewed compact stakeholders,  including commission members; federal, state, and local government  officials; environmentalists; and members of the business community,  among others. See appendix I for additional details on our scope and  methodology and appendix II for additional details on the 59  congressionally approved environment and natural compacts we  reviewed. A more complete summary of the results of our survey of  compact commission officials can be viewed on our Web site at  www.gao.gov in an electronic supplement that we are issuing concurrent  with this report—GAO-07-524SP. We conducted our review from April  2006 through March 2007 in accordance with generally accepted  government auditing standards.
subsections: section_title: Background
paragraphs: Interstate compacts are legal agreements between states that bind  member states to their provisions in the same manner as contracts entered  into by individuals or corporations. Traditionally, compacts were  negotiated by special joint commissions appointed by the state governors.  Increasingly, however, compacts have been formulated by interested  groups of state officials or other stakeholders and then recommended to  the state legislatures. In either case, each state legislature accepts the  compact by enacting a law that adopts the terms of the agreement. When  the required number of states have enacted such a law, the compact is  formed.
In cases where the compact affects the balance of power between the  federal government and the states, the states must obtain the consent of  Congress for the compact to be valid. Congress generally gives its consent  in one of three ways: (1) after the fact, by passing legislation that  specifically recognizes and consents to the compact as enacted by the  states; (2) in advance, by passing legislation encouraging states to enter  into a specified compact or compacts for specified purposes; or (3)  implied after the fact, when actions by the states and the federal  government indicate that Congress has granted its consent even in the  absence of a specific legislative act. In addition, Congress may impose  conditions as part of granting its consent, and it typically reserves the right  to alter, amend, or repeal its consent. Any proposed amendment to a  compact must follow the compact approval process, unless the compact  specifies otherwise.
The use of interstate compacts has changed over time in terms of number,  subject matter, and scope. Of the 32 compacts enacted between 1789 and  1920, most resolved boundary disputes between 2 neighboring states. As  the twentieth century progressed, states increasingly used interstate  compacts to address complex problems that were not confined to their  borders, such as apportioning interstate waters, supervising out-of-state  offenders under community supervision, and constructing and  administering bridges and shared port facilities. According to the Council  of State Governments, more than 200 interstate compacts exist  nationwide, with each state belonging to an average of 25 compacts. Along  with the increasing numbers and subjects covered, interstate compacts  have also expanded their range of coverage from 2 states to as many as 50  and may also include the District of Columbia, Puerto Rico, U.S.  territories, and Canadian provinces as signatories.
Over one-third of the compacts that exist today deal with environment and  natural resource issues. Although a large number of these compacts deal  with water allocation, they address other subjects as well.
In addition to addressing a variety of subjects, the scope of these  environment and natural resource compacts ranges from 2 to as many as  30 states, and includes, in some cases, the District of Columbia, Canadian  provinces, or the United States as signatories. As table 1 shows, about  three-fourths of these compacts have received congressional approval.
Prior to the 1920s, existing agencies and officials within compact states  routinely administered interstate compacts. However, as states began to  jointly tackle issues of greater complexity and broader geographic scope,  the use of interstate commissions gained popularity. The majority of the  compacts enacted since 1970 have established interstate commissions.  These commissions consist of appointed representatives of each  compacting state, called commissioners, who are responsible for  administering the compact’s provisions. Additionally, commissions may  employ technical and other staff to assist in the compact’s administration.  In some cases, commissions will hire an executive director who is  responsible for administering the commission’s daily operations in  accordance with the commission’s direction and policies. In addition,  commissions may have advisory committees that study issues and make  recommendations to the commissioners. These committees may be  permanent or temporary in nature, depending on need.
section_title: Most Environment and Natural Resource Compacts Are Administered by Commissions
paragraphs: Of the 59 interstate compacts we reviewed, 46 established commissions to  administer the compact’s provisions, while the remaining 13 were  administered by existing agencies or officials in the member states. Among  the compacts with commissions, we found variations in organizational  structure, powers and authorities, and provisions for resolving disputes,  but similarities in how the compacts provided for public accountability.  The 13 compacts without commissions also varied in powers and  authorities. In addition, they generally did not contain provisions for  alternative dispute resolution or public accountability, but their  administering agencies or officials are subject to state requirements and  procedures.
subsections: section_title: Organizational Structure and Governance Generally Varied among Compacts Administered by Commissions
paragraphs: The 46 compacts with commissions that we reviewed varied in  organizational structure, such as the number of commissioners and staff;  powers and authorities, including whether the compact granted advisory  or regulatory authority; and the dispute resolution mechanisms provided  as alternatives to litigation. However, the compacts shared similarities in  their approaches for providing public accountability.
subsections: section_title: Organizational Structure
paragraphs: The 46 compacts with commissions that we reviewed generally varied in  organizational structure, including the composition and size of the  commission, use of administrative staff, and use of advisory committees.
Commission composition. The commissions established by the 46  compacts we reviewed varied in size and interests represented. In all  cases, the commissioners were appointed to serve—generally by elected  officials or by virtue of their state office, such as governor or head of a  state natural resources department. However, the number of  commissioners ranged from 2 to 48, with each state generally having an  equal number of commissioners. For example, the Rocky Mountain Low- Level Radioactive Waste Compact required that each of its three member  states appoint one representative to the commission, while the New  England Interstate Water Pollution Control Compact required that each of  its seven member states appoint 5 commissioners. Depending on the  compact, there were as few as 1 and as many as 7 commissioners from  each state. Of the 46 compacts, 15 explicitly required member states to  appoint commissioners to represent additional interests. For example, 11  compacts provided for local representation, 4 required the appointment of  a knowledgeable citizen from each state, and 1 required the appointment  of an industry representative from each state. In addition, 18 of the 46  compacts, such as the Connecticut River Valley Flood Control Compact,  specified the number of commissioners from each state, but left it to each  state to decide how to choose its commissioners.
Of the 46 compacts with commissions that we reviewed, 21 provided for a  federal representative on the commission. For 16 of these compacts, the  President appointed the federal representative; the other 5 compacts  named an official of a specified federal agency, such as the Director of the  U.S. Geological Survey. While nearly half of the compacts with  commissions had federal representation, only 4 of these compacts—the  Connecticut River Atlantic Salmon, the Delaware River Basin, the  Susquehanna River Basin, and the Upper Colorado River Basin  Compacts—explicitly gave the federal representative the power to vote on  commission decisions or actions.
Staff. Compacts also varied in their provisions for staff to conduct day-to- day operations and provide technical assistance to the commissions. Only  8 of the 46 compacts explicitly required that their commissions hire staff,  an additional 34 compacts left it to the commissions’ discretion to hire  staff, and 4 compacts made no provisions for staff. In practice, we found  that 67 percent of the commissions that responded to our survey reported  having an administrative staff. Among these commissions, the number of  full-time equivalent staff ranged from 1 to 85.
Advisory committees. The way compacts provided for committees to  advise the commission varied. Only 4 of the 46 compacts we reviewed  expressly required their commissions to establish an advisory committee,  while another 13 expressly authorized them. For example, the Pacific  States Marine Fisheries Compact required that its commission establish a  permanent advisory committee to represent the interests of the  commercial fishing industry on an ongoing basis, as well as short-term  advisory committees to draft position papers on a specific commission  issue, such as ecosystem management. In practice, however, about 75  percent of the commissions responding to our survey reported having at  least one advisory committee, and about 56 percent of these commissions  reported that members of the public served on at least one of their  advisory committees.
section_title: Powers and Authorities
paragraphs: The powers and authorities granted to the compact commissions also  varied. In some cases, the commission only had advisory authority. For  example, the Gulf States Marine Fisheries Commission makes  recommendations to its member states on the conservation, development,  and utilization of fishery resources in the Gulf of Mexico, but it does not  have the authority to implement its recommendations. In other cases, the  compacts explicitly granted commissions the authority to issue  regulations. For example, the Ohio River Valley Water Sanitation  Commission has the authority to set water pollution control standards for  the Ohio River. We also found cases where the commissions had both  advisory and regulatory authority. For example, the Delaware River Basin  Commission studies and advises states on approaches to water  management, but also regulates water quality and water supply. In some  cases, we had difficulty determining from a compact’s language whether  the commission was advisory or regulatory in nature. However, over 55  percent of the commissions that responded to our survey reported that  they had the authority to issue regulations, with 95 percent of these  commissions reporting that they have sufficient authority to enforce the  regulations they issue.
section_title: Dispute Resolution
paragraphs: The 46 compacts with commissions that we reviewed also differed in their  provisions for resolving disputes among the compact states or between the  commission and those it regulates. While compact disputes generally can  be brought before a court for review, litigation can be expensive. Possible  alternatives to litigation include the following:    Arbitration—a process by which the parties refer a dispute to an agreed- upon, independent third party for resolution.
Mediation—a process by which a neutral person facilitates discussion  between the disputing parties to help them reach agreement.
Administrative appeals—a process by which an action of the commission  can be appealed to the commission itself.
Negotiation—a process by which the parties attempt to reach agreement  through discussion and compromise.
Only 12 of the 46 compacts with commissions that we reviewed (26  percent) specified alternative approaches for resolving disputes. Of these  compacts, 9 made provisions for the use of arbitration, 2 provided for  negotiations, and 1 called for mediation. For example, the Klamath River  Basin Compact—which manages water resources for irrigation, fish and  wildlife protection, and domestic and industrial use, among other things— required that if the commission’s two voting members failed to agree on  any matter before the commission, the commission must refer the matter  to an independent third party for resolution. However, while 12 compacts  expressly mentioned the use of arbitration, mediation, administrative  appeals, or negotiation for resolving disputes, 36 percent of our survey  respondents reported that they have used one or more of these dispute  resolution mechanisms. Among these respondents, 7 had used mediation,  5 had used an administrative appeals process, 5 had used negotiations, and  1 had used arbitration.
section_title: Public Accountability
paragraphs: While compact commissions varied with respect to organizational  structure, powers and authorities, and methods for resolving disputes,  they generally used similar approaches to provide accountability to the  public, even when not required by their compact. For example, while only  18 of the 46 compacts expressly required that commission documents be  made available to the public, all of the commissions that responded to our  survey reported that they have given the public access to commission  meeting minutes, and 94 percent reported that they also make available to  the public documents used in preparation for commission meetings.  Further, 94 percent of the survey respondents reported that they had  established procedures—such as holding public meetings and allowing  public input—to ensure public accountability. In addition, 78 percent of  the commissions reported that they have conducted some form of public  outreach. These commissions used various outreach approaches, such as  meeting with stakeholders to discuss their needs and concerns, operating  a commission Web site, distributing newsletters and press releases,  holding symposiums, producing public service announcements, and  making educational presentations to schoolchildren.
In addition, 6 of the 46 compacts that established commissions explicitly  required representatives from the public to sit on advisory committees.  However, according to our survey responses, at least an additional 9  commissions have allowed representatives from the general public to  serve on advisory committees, although they were not required to do so.
Financial reporting by the compact commissions was frequently practiced  as a means of providing accountability to both the public and member  states. Among the 46 compacts administered by commissions, 25 required  that the commission undergo an annual financial audit. Of the  commissions responding to our survey, 86 percent reported undergoing  financial audits. Of the commissions that undergo financial audits, 90  percent told us that they undergo annual financial audits, with the rest  undergoing financial audits somewhat less frequently. All of the  commissions that undergo financial audits told us that they reported their  audit results to the member states, and 71 percent of these commissions  made their audits available to the public.
section_title: Compacts without Commissions Varied in Their Powers and Authorities
paragraphs: The 13 compacts administered by existing agencies or officials also had  varied powers and authorities. Compacts administered by state agencies  or officials contained few provisions for dispute resolution and  accountability. However, these agencies and officials are required to  follow state requirements.
subsections: section_title: Powers and Authorities
paragraphs: Eight of the 13 compacts administered by existing agencies or officials  authorized member states to jointly develop regulations for achieving  compact objectives, while 5 required member states only to coordinate  resources to meet compact goals. In general, the 8 regulatory compacts  required that the member states mutually consent to any regulations  issued under the compact. For example, the Columbia River Compact  mandated that laws and regulations for protecting fish in the Columbia  River be created or amended only with the mutual consent of both states.  The 5 compacts that called for coordination among member states  typically called for either sharing expenses among the member states or  joint oversight of the compact’s subject matter. For example, the Middle  Atlantic Interstate Forest Fire Protection Compact requires member states  to help each other in combating, controlling, or preventing forest fires.
section_title: Dispute Resolution
paragraphs: Only 3 of the 13 compacts administered by existing agencies or officials  specified methods for resolving disputes. However, the state agencies and  officials that administer these compacts are already subject to state  dispute resolution requirements or procedures. One of the 3 compacts that  specified methods for resolving disputes is the Colorado River Compact— a highly controversial water allocation compact—that gives the governors  of the member states the authority to appoint individuals to consider and  resolve certain conflicts that arise between member states regarding a  compact issue. Similarly, the New Hampshire-Vermont Interstate Sewage  and Waste Disposal Facilities Compact and the New Hampshire-Vermont  Interstate Public Water Supply Compact, which authorize municipalities to  enter into agreements to establish joint waste facilities and public water  supplies, respectively, require that these agreements include provisions for  arbitration and dispute resolution.
section_title: Public Accountability
paragraphs: Of the 13 compacts administered by existing agencies or officials, only 1  contained any provision relating to public accountability. However, as  with dispute resolution, the state agencies or officials that administer  these compacts are already subject to state requirements for providing  public accountability. The Jennings Randolph Lake Project Compact,  which provides for Maryland and West Virginia to jointly manage the  natural resources of Jennings Randolph Lake, is the only compact  administered by existing agencies that includes provisions for  accountability. It called for the states to encourage the dissemination of  “joint publications, press releases, or other public information.”
section_title: Significant Concerns about Compact Commissions’ Structure and Governance Have Not Been Frequently Raised
paragraphs: Interstate compact commissions reported that significant concerns about  their structure and governance have rarely been raised. While almost two- thirds of the 36 commissions responding to our survey reported that  significant concerns have been raised at least once about their  commission’s organizational structure, public accountability, or regulatory  authority, none of the commissions reported that these concerns have  been raised frequently. Moreover, a number of officials responding to our  survey believed that these concerns often reflected disagreements with  specific commission actions rather than general concerns about  organizational structure, public accountability, or regulatory authority.
subsections: section_title: Concerns about Organizational Structure
paragraphs: Survey respondents reported that concerns about organizational structure  have been raised infrequently. As shown in figure 1, less than half of the 36  compact commissions responding to our survey reported that significant  concerns have been raised about their commission’s structure or  composition—with 13 commissions reporting such concerns as seldom  and 4 reporting such concerns as occasional. We found no consistent  theme among the concerns identified. Examples of concerns included  whether the appropriate interests were represented on the commission,  whether the balance of state and local interests on the commission was  fair, where the commission should be located, and how many votes each  state should have. Regarding concerns about the method of selecting  commissioners, less than one-third of the 36 commissions reported that  such concerns had been raised at all—with 7 reporting such concerns as  seldom and 3 as occasional (see fig. 1). When concerns were identified,  they also varied by commission and included, for example, whether  commissioners should be directly elected to the commission and whether  commission appointments were too political.
section_title: Concerns about Public Accountability
paragraphs: Survey respondents also reported that concerns about public  accountability have been raised infrequently. As shown in figure 2, less  than half of the 36 compact commissions responding to our survey  reported that significant concerns have been raised about their  commission’s public accountability—with 14 respondents reporting such  concerns as seldom and 2 reporting such concerns as occasional. Again,  there was no consistent theme among the concerns identified. For  example, 1 commission reported that a concern had been raised about  whether the commission had adequate oversight, while another  commission reported that concerns had been raised about whether the  commission was sufficiently independent of its member states. Some  concerns about public accountability have resulted in lawsuits. For  example, the Susquehanna River Basin Commission was sued in 2006 for  allegedly failing to provide adequate notice of public hearings on proposed  changes to its water regulations.
section_title: Concerns about Regulatory Authority
paragraphs: Twenty of the 36 compact commissions responding to our survey reported  that they have the authority to issue regulations. As shown in figure 3, over  two-thirds of these commissions reported that significant concerns about  their current regulatory authority have been raised infrequently—with 9  reporting such concerns as seldom and 5 as occasional. Although the  specific concerns varied from commission to commission, the concerns  often involved the scope of the commission’s authority. For example, 1  commission reported that concerns had been raised about whether it had  the authority to regulate certain types of water rights, while another  commission reported that concerns had been raised about whether it had  too much regulatory authority. Commissions have also been sued over the  scope of their authority. For example, a group of landowners  unsuccessfully sued the Columbia River Gorge Commission and the  Secretary of Agriculture on a number of grounds, including that the  commission’s decision to deny the landowners’ applications to develop  their properties resulted in an illegal taking of private property under the  U.S. Constitution. Notably, survey responses indicated that concerns  about regulatory authority were more frequently raised in cases where the  compact had addressed highly controversial issues.
section_title: Concerns Have Reflected Disagreement with Commission Actions or Decisions
paragraphs: A number of commission officials told us they believed that when  concerns have been raised about a commission’s structure and  governance, they often reflected underlying disagreements with specific  commission decisions or actions. Officials repeatedly reported that some  of the concerns about organizational structure, public accountability, and  regulatory authority were raised only when an individual objected to a  specific commission decision or action. For example, an official from one  commission believed that a concern raised about the commission’s  accountability to the public actually reflected an individual’s anger over a  particular commission decision, while an official from another  commission stated that concerns about the methods used to select  commissioners have been raised only when someone dislikes a particular  regulation issued by the commission. Similarly, an official from a third  commission stated that people have raised concerns about the  commission’s organizational structure and authority when they simply  disliked the commission’s actions and that such concerns arise as the  commission deals with controversial or high-visibility issues.
section_title: While the Structure and Governance of TRPA Are Generally Similar to Those of Other Compact Commissions, Its Regulatory Authority Is Broader
paragraphs: TRPA’s organizational structure and governance are generally similar to  those of three other interstate compact commissions with similar  functions—the Columbia River Gorge, Delaware River Basin, and  Susquehanna River Basin Commissions. However, TRPA has greater  regulatory responsibility and more extensive land use planning authority  than these commissions.
subsections: section_title: Three Interstate Compact Commissions Perform Similar Functions to TRPA
paragraphs: We identified three interstate compact commissions that perform similar  functions to TRPA, including the Columbia River Gorge Commission  (CRGC), the Delaware River Basin Commission (DRBC), and the  Susquehanna River Basin Commission (SRBC). TRPA is responsible for  developing and implementing an environmental and land use plan to  preserve the natural quality of the Lake Tahoe region (see fig. 4). The  CRGC is responsible for developing and adopting a management plan that  regulates, through land use ordinances, the development and use of  various categories of land within the Columbia River Gorge National  Scenic Area (see fig. 4). Both the DRBC and the SRBC are responsible for  multipurpose planning, development, and management of the water and  water resources in the Delaware and Susquehanna River Basins,  respectively (see fig. 5). (For more information on these compacts, see  app. III.)
WASHOE CO.
DOUGLAS CO.
PLACER CO.
EL DORADO CO.
subsections: section_title: Columbia River Gorge
paragraphs: SKAMANIA CO. KLICKITAT CO.
Like TRPA, these three commissions have the authority to issue  regulations. Also, like TRPA, these three commissions have developed a  comprehensive plan for achieving their compact’s objectives. While their  compact objectives differ, at least six of the issues addressed in their  comprehensive plans are similar to those addressed in TRPA’s plan,  including land use, transportation, conservation, recreation, public  services and facilities, water pollution, flood control, and waste disposal.  See table 2 for a comparison of issues addressed by the four management  plans.
section_title: TRPA’s Organizational Structure and Governance Are Generally Similar to Those of Three Other Compact Commissions
paragraphs: TRPA and the three other compact commissions have similar  organizational structures, but differ in size, composition, and role of the  federal representative. In terms of governance, the four commissions also  use similar means for resolving disputes and providing accountability.
subsections: section_title: Organizational Structure
paragraphs: TRPA and the three other commissions have similar organizational  structures that consist of appointed commissioners, a staff, and advisory  committees. However, commission composition differs in terms of size,  interests represented, and role of the federal representative.
Commission composition. TRPA’s governing board is similar to those of  the three other commissions in that it consists of appointed members,  including a representative of the federal government. However, TRPA is  more like the CRGC in terms of its size, interests represented, and role of  the federal representative. Specifically, TRPA’s governing board has 15  members. California and Nevada each have 7 members, including 4  statewide and 3 local representatives, and the federal government has a  representative. All 7 California board members are appointed by elected  officials. Four Nevada board members are appointed by elected officials, 2  serve by virtue of their state office, and 1 is appointed at-large by the other  Nevada members. The federal representative is appointed by the  President. All board members, except the federal representative, can vote  on matters before the commission. In comparison, the CRGC has 13  members, including 3 appointees of each governor, 1 appointee of each of  the 6 counties in the Scenic Area, and a federal representative who is a  member of the U.S. Forest Service appointed by the Secretary of  Agriculture. As with TRPA, all of the CRGC’s commissioners are voting  members except the federal representative.
The remaining two commissions are much smaller than TRPA. The DRBC  and the SRBC have only 5 and 4 members, respectively, including a  representative of the federal government. Unlike TRPA and the CRGC,  each state has one commissioner—the governor or a designee. According  to DRBC and SRBC officials, the designee is typically the head of the  state’s natural resources or environmental protection department. The  federal representative is an officer of the U.S. Army Corps of Engineers  appointed by the President. Unlike the federal representatives on TRPA  and the CRGC, the federal representatives on the DRBC and the SRBC can  vote on commission matters, because the United States is a party to the  compacts.
Staff. Like the three other commissions, TRPA employs an executive  director who is responsible for administering the commission’s day-to-day  operations in accordance with the commissioners’ direction and policies.  The executive director is assisted by a staff of technical and other  employees. At the time of our review, TRPA had the largest staff, with 85  full-time equivalent (FTE) positions. In comparison, the DRBC had 43  FTEs, the SRBC had 35 FTEs, and the CRGC had 8.75 FTEs.
Advisory committees. All four commissions rely on advisory committees  to study issues and make recommendations to the commissioners. For  example, TRPA has a 19-member advisory planning commission— composed of planning and natural resource management professionals in  the region, as well as members of the public—that assists the governing  board with technical and scientific issues dealing with land use planning.  The advisory planning commission holds hearings, reviews proposed  amendments to TRPA’s plans and ordinances, and makes  recommendations to the governing board. In addition, TRPA’s governing  board has formed four advisory committees, composed of board members,  to review and make recommendations to the board on legal, operational,  public education and outreach, and local government matters. Similar to  TRPA, both the DRBC and the SRBC have established ongoing issue- related advisory committees that sometimes include members of the  public. For example, the DRBC has established a flood advisory  committee and the SRBC an agricultural water use committee. Moreover,  officials of the CRGC, the DRBC, and the SRBC reported that their  commissions set up short-term committees, which may include members  of the public, to provide input on specific issues or concerns that arise.
section_title: Dispute Resolution
paragraphs: To avoid litigation, TRPA and the three other commissions generally use  similar mechanisms for resolving disputes between the commission and  those it regulates. These mechanisms include administrative appeals,  mediation, and negotiation. Specifically, TRPA, like the three other  compact commissions, has an administrative appeals process that allows  individuals to appeal a final action of the executive director to the  governing board without proceeding directly to court. In addition, TRPA,  like the CRGC and the DRBC, also uses mediation as an alternative  process for resolving disputes. However, only the CRGC explicitly  provides for mediation as part of its administrative appeals process. Lastly,  TRPA, like the CRGC and the SRBC, uses negotiation to resolve cases  involving noncompliance with its regulations.
section_title: Public Accountability
paragraphs: In addition to using similar mechanisms for resolving disputes, the four  commissions use similar mechanisms to help ensure accountability. Some  mechanisms serve to help ensure accountability and transparency of  commission decisions, while others provide financial accountability.  Generally, all four commissions:    Report their activities to state or federal agencies or officials. TRPA, like  the CRGC and the SRBC, regularly reports to its member states’ budget  committees during its budget cycles. According to TRPA and CRGC  officials, TRPA and the CRGC have also been required to report to state  legislative oversight committees. Both the DRBC and the SRBC are  required by their compacts to prepare an annual report to the legislative  bodies of their member states. In contrast, TRPA and the CRGC are not  required by their compacts to issue an annual report. In addition to their  regular reporting, all four commissions report to state or federal agencies  or officials when requested.
Conduct periodic progress reviews. As required by their compacts, all  four commissions conduct periodic reviews of their progress toward  meeting compact objectives and make the results available to the states  and the public. Specifically, TRPA assesses its progress toward achieving  the goals of its comprehensive plan every 5 years and issues a report. The  CRGC conducts a similar assessment every 10 years. The DRBC evaluates  its progress toward its strategic plan every year, and the SRBC does so  from time to time, but not according to a set schedule.
Undergo state evaluations of their performance. TRPA, like the CRGC  and the DRBC, undergoes state evaluations of its performance. However,  such evaluations do not occur on a regular basis. The most recent TRPA  evaluation occurred in 2004, the CRGC in 2003, and the DRBC in 2006.  While no member state has evaluated the SRBC’s performance, officials  reported that state member representatives have on occasion audited the  commission’s financial records.
Make commission meetings and records available to the public. All four  commissions hold meetings that the public can attend, and provide  opportunities for the public to provide input into decision making. They  also make commission records available to the public, such as commission  meeting minutes and records of individual members’ votes, enabling the  states and the public to hold individual commissioners accountable for  their decisions.
Conduct public outreach. All four commissions use various approaches to  conduct public outreach, such as press releases, commission Web sites,  workshops, presentations, newsletters, and speakers’ bureaus.
Undergo annual financial audits. All four commissions are audited  annually and the results are presented to each commission in a public  meeting. Such audits are required for the CRGC, the DRBC, and the SRBC  by their compacts. In the case of the DRBC and the SRBC, the audits must  be performed by third parties.
Submit grant reports. All four commissions submit reports to the  appropriate state and federal agencies, as required by the agencies, for  grant monies received.
section_title: TRPA Has More Extensive Land Use Planning Authority than the Three Other Commissions
paragraphs: While all four commissions have the authority to adopt and enforce  regulations, a major distinction between TRPA and the three other  compact commissions is that TRPA has broad land use planning authority  that requires it to address a wide range of environmental issues.  Specifically, under its compact, TRPA is required to adopt environmental  standards to protect the natural environment and to maintain public health  and safety within the Tahoe region. The nine standards adopted by TRPA  address air quality, water quality, soil conservation, wildlife habitat, fish  habitat, vegetation preservation, noise, recreation, and scenic resources.  After setting the standards, TRPA was required to adopt a regional plan  and ordinances to achieve and maintain the standards. The ordinances  were required to contain, at minimum, standards for water purity and  clarity; subdivision; zoning; tree removal; solid waste disposal; sewage  disposal; landfills; excavations; cuts and grading; piers, harbors,  breakwaters or channels, and other shoreline developments; waste  disposal in shoreline areas; waste disposal from boats; mobile home parks;  house relocation; outdoor advertising; flood plain protection; soil and  sedimentation control; air pollution; and watershed protection. Further,  these ordinances preempt the regulations of local and state agencies in the  region, unless such regulations are stricter, and must be interpreted  consistently with federal laws that may also apply within the Lake Tahoe  region. Any project that may substantially affect the land, water, or any  other natural resources of the Lake Tahoe region must comply with  applicable provisions of the compact, the regional plan, ordinances, and  rules and regulations.
In comparison to TRPA, the CRGC is more limited in its land use planning  authority. Whereas TRPA is broadly responsible for how and to what  extent land—as well as water, air, and other natural resources—is used  within the region, the CRGC only regulates the use of land when it affects  cultural, natural, recreational, or scenic resources. For example, unlike  TRPA, the CRGC cannot regulate land use for public health and safety,  such as natural hazards, or for noise. Further, the CRGC can set and  enforce standards only when a county fails to enact land use ordinances  consistent with the commission’s management plan, and only one of the  six counties in the Scenic Area has failed to do so. In contrast, neither the  DRBC nor the SRBC has regulatory authority over land use; instead, local  jurisdictions have such authority. However, the decisions of the DRBC and  the SRBC, which both regulate water consumption and withdrawal,  indirectly affect land use because the water withdrawal requirements each  commission sets to manage water resources in its respective basin can  influence how land can be used.
As agreed with your offices, unless you publicly announce the contents of  this report earlier, we plan no further distribution until 30 days from the  report date. At that time, we will send copies of this report to interested  congressional committees. We will also provide copies to others upon  request. In addition, the report will be available at no charge on the GAO  Web site at http://www.gao.gov.
If you or your staff have any questions about this report, please contact me  at (202) 512-3841 or mittala@gao.gov. Contact points for our Offices of  Congressional Relations and Public Affairs may be found on the last page  of this report. Key contributors to this report are listed in appendix IV.
section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: Our review focused on congressionally approved interstate compacts that  address environment and natural resource issues. Specifically, we were  asked to determine (1) the approaches used to administer congressionally  approved environment and natural resource compacts, including their  organizational structure, powers and authorities, and mechanisms for  resolving disputes and providing public accountability; (2) the extent to  which concerns have been raised regarding the structure and governance  of those compacts, like the Tahoe Regional Planning Compact, that have  commissions; and (3) specifically, how the structure and governance of  the Tahoe Regional Planning Agency (TRPA) compares to those of other  similar compact commissions.
To determine the approaches used to administer congressionally approved  interstate compacts that address environment and natural resource issues,  we used Interstate Compacts & Agencies 2003, a directory compiled by  the Council of State Governments, and prepared a list of 76 such  compacts. From this list, we identified and reviewed 59 compacts with  congressional approval. We also obtained and reviewed relevant compact  documents, such as bylaws, rules of procedure, and management plans,  for information on the compact’s organizational structure, powers and  authorities, and mechanisms for resolving disputes and providing public  accountability. In addition, we developed and distributed a Web-based  survey to officials from the 45 compacts with an operational commission  to obtain additional information on the structure and governance of their  compacts, as well as the extent to which significant concerns have been  raised regarding commission structure or composition, method of  selecting commissioners, current regulatory authority, and public  accountability.
The practical difficulties of conducting any survey may introduce  nonsampling error. For example, differences in how a particular question  is interpreted, the sources of information available to respondents, or the  types of people who do not respond can introduce unwanted variability  into the survey results. Therefore, we included steps in developing and  administering the survey for the purpose of minimizing such nonsampling  errors. For example, we pretested the survey with three compact  commission officials and used their feedback to refine the survey. Also, to  reduce survey nonresponse, we sent e-mail reminders and conducted  follow-up telephone calls with nonrespondents. Overall, officials from 36  of the 45 compacts in our sampling frame responded to our survey, for a  response rate of 80 percent. Where necessary, we conducted follow-up  telephone interviews with commission officials to clarify survey responses  and obtain additional information on the concerns raised regarding their  commission’s structure and governance.
In addition to our survey, we contacted officials of compacts without  commissions to obtain information on the administration of these  compacts.
To determine the extent to which concerns have been raised regarding the  structure and governance of compacts with commissions, we used the  results of our survey of compact commission officials to identify  commissions where significant concerns about commission composition,  method of selecting commissioners, current regulatory authority, and  public accountability have been raised. We conducted follow-up  interviews with commission officials to obtain additional information on  the nature and frequency of these concerns. We also reviewed relevant  documents, such as studies, news articles, and court cases for information  on concerns. We also interviewed interstate compact experts to obtain  their views on issues related to the organizational structure, authority, and  public accountability of compact commissions.
To determine how TRPA compares to other interstate compact  commissions, we used the results of our survey of compact commission  officials to identify commissions that are similar to TRPA. The criteria for  selecting similar commissions included (1) having the authority to issue  regulations and (2) having a plan for achieving the compact’s objectives  that addresses at least six of the following issues: land use, transportation,  conservation, recreation, public services and facilities, water pollution,  flood control, and waste disposal. We identified three commissions that  met these criteria—the Columbia River Gorge Commission, the Delaware  River Basin Commission, and the Susquehanna River Basin Commission.  To obtain information on each of these commission’s structure and  governance, we obtained and reviewed relevant documents, such as  compact plans, commission meeting minutes, reports, and news articles.  We interviewed commission staff in Stateline, Nevada; White Salmon,  Washington; West Trenton, New Jersey; and Harrisburg, Pennsylvania; and  attended meetings of TRPA, the Columbia River Gorge Commission, and  the Nevada legislative oversight committee on TRPA. In addition, we  interviewed compact stakeholders, such as commissioners; federal, state,  and local government officials; environmentalists; business community  members; and representatives of groups regulated by the commissions to  obtain their views on the organizational structure and governance of their  commissions.
We conducted our work from April 2006 through March 2007 in  accordance with generally accepted government auditing standards.
section_title: Appendix II: Descriptions of Interstate Compacts Included in Our Review
paragraphs: This appendix provides information on the 59 congressionally approved  environment and natural resource compacts that we included in our  review.
section_title: Appendix III: Descriptions of TRPA and Three Selected Compact Commissions
paragraphs: This appendix describes the Tahoe Regional Planning Agency (TRPA) and  three compact commissions that perform similar functions to TRPA.
subsections: section_title: Tahoe Regional Planning Agency
paragraphs: Lake Tahoe is located in the Sierra Nevada Mountains on the border of  California and Nevada (see fig. 6). Approximately two-thirds of the lake  lies in California and one-third in Nevada. Lake Tahoe is about 22 miles  long and 12 miles wide and has a surface area of 191 square miles. With an  average surface elevation of 6,225 feet above sea level, Lake Tahoe is the  highest lake of its size in the United States. The lake, which is known for  its exceptional purity and clarity, has been called a national treasure.
Reports of Lake Tahoe’s beauty did not go unnoticed. By the turn of the  twentieth century, the lake had become a summer resort, primarily for the  wealthy. Following World War II, the Tahoe region experienced rapid  growth with the availability of modern snow removal equipment, which  enabled the states to keep the highways into Lake Tahoe open during the  winter months, coupled with the establishment of year-round casinos in  Nevada and the 1960 Winter Olympic Games in nearby Squaw Valley,  which further stimulated development of the winter sports industry.  Postwar affluence and increased leisure time, along with rapid population  growth in urban centers in northern California, resulted in a large increase  in the number of tourists and seasonal residents at Lake Tahoe. In  response to growing concerns about the impact of development on Lake  Tahoe and its environment—particularly a proposal for a four-lane  freeway with a bridge over Lake Tahoe’s famed Emerald Bay, the states of  California and Nevada negotiated a bistate compact that created a regional  planning agency to oversee development at Lake Tahoe. Congress gave its  consent to the compact in 1969.
The Tahoe Regional Planning Compact established the Tahoe Regional  Planning Agency (TRPA) to administer the compact. It also created a  governing board that, according to TRPA officials, functioned like a  regional planning board. The majority of the board members were local  residents. Project approval required a majority of votes from each state.  Further, the compact had a provision that if a project was not acted upon  within 60 days, the project would automatically be deemed approved.  Under this provision, development continued unchecked, and the compact  was amended and ratified by Congress in 1980 to give more control to  statewide rather than local representatives and to eliminate the 60-day  provision.
The compact, as amended, grants TRPA the authority to establish  environmental quality standards, called thresholds, and to adopt and  enforce a regional plan and ordinances for achieving and maintaining the  standards while providing opportunities for orderly growth and  development consistent with the standards.
section_title: Columbia River Gorge Commission
paragraphs: The Columbia River Gorge is a canyon up to 4,000 feet deep that stretches  for over 85 miles as the Columbia River cuts through the Cascade  Mountains, forming the boundary of the states of Washington and Oregon  (see fig. 7). Because of its scenic beauty, abundant natural resources, and  multicultural history, the Columbia River Gorge has been called a national  treasure. In addition, the gorge provides many recreational  opportunities—such as fishing, hiking, rock climbing, and world-class  windsurfing—that attract millions of visitors a year.
The completion of a highway along the Columbia River in 1915 opened up  the gorge to recreation and stimulated growth on both sides of the river.  By the 1930s, development impacts on the gorge were becoming a source  of concern and, by the 1950s, both Oregon and Washington had created  individual gorge commissions. However, their effectiveness became  limited by inadequate funding, lack of authority, and opposition from  various sources. In 1980, an attempt to build a subdivision in Skamania  County, Washington, across the Columbia River from Multnomah Falls,  one of Oregon’s premier tourist attractions, provided the catalyst to find  permanent protection for the gorge’s natural resources, and, in 1986,  Congress passed the Columbia River Gorge National Scenic Area Act. The  Scenic Area, which totals about 292,500 acres, stretches for 85 miles on  either side of the Columbia River and includes portions of three counties  in Oregon and three counties in Washington.
The purpose of the Scenic Area Act is to (1) establish a national scenic  area to protect and provide for the enhancement of the gorge’s scenic,  cultural, recreational, and natural resources and (2) protect and support  the economy of the Columbia River Gorge area by encouraging growth in  urban areas and allowing economic development that is consistent with  the first purpose. The act authorized Oregon and Washington to enter into  a compact that would create a regional agency known as the Columbia  River Gorge Commission and required that the commission carry out its  functions and responsibilities in accordance with the compact and the act.  These functions and responsibilities included, among others, adopting a  management plan for the Scenic Area, administering the plan, reviewing  the plan periodically, and amending it as necessary.
section_title: Delaware River Basin Commission
paragraphs: The Delaware River Basin consists of 13,539 square miles, draining parts  of Pennsylvania, New Jersey, New York, and Delaware (see fig. 8). Nearly  15 million people rely on the waters of the basin for drinking and industrial  use, including 7 million people in the New York City area and northern  New Jersey who live outside the basin. New York City gets nearly half of  its water from three large reservoirs located on the tributaries to the  Delaware, and Philadelphia gets 100 percent of its water supply directly  from the Delaware and Schuylkill Rivers. In addition, the Delaware River  Port Complex (including docking facilities in Pennsylvania, New Jersey,  and Delaware) is the largest freshwater port in the world.
In 1954, the United States Supreme Court resolved years of interstate  conflict over water rights by apportioning the waters of the Delaware  River among the four states and New York City. In doing so, the Court did  not guarantee a final apportionment of water resources, but allowed the  parties to return to court if circumstances changed. Instead of risking  future litigation, Pennsylvania, New York, New Jersey, Delaware, and the  United States created the Delaware River Basin Compact to provide a  unified approach to managing the river system without regard to political  boundaries. Congress granted its consent to the agreement in 1961.
The compact created the Delaware River Basin Commission (DRBC) to  administer its provisions. The DRBC was given broad authority to plan,  regulate, and coordinate management of the basin’s waters. The  commission regulates water supply allocation and water quality protection  and has the authority to issue pollution control standards. In addition, the  commission, acting on information from its advisory committees, makes  recommendations to its member states on issues such as toxic pollutants,  water quality, flooding, and flow management.
section_title: Susquehanna River Basin Commission
paragraphs: The Susquehanna River is the nation’s 16th largest river, originating near  Cooperstown, New York, and emptying into the Chesapeake Bay at Havre  de Grace, Maryland (see fig. 9). Along with its tributaries, the river drains  27,510 square miles, an area nearly the size of South Carolina. It is also the  largest river lying entirely in the United States that flows into the Atlantic  Ocean, and it provides 50 percent of the fresh water entering into the  Chesapeake Bay.
New York, Pennsylvania, Maryland, and the United States created the  Susquehanna River Basin Compact to plan and manage the development  of the basin’s water resources, among other purposes. The compact was  modeled after the Delaware River Basin Compact. The compact received  congressional consent in 1970. However, unlike the Delaware compact,  which was created after its member states had litigated before the  Supreme Court over water distributions, the Susquehanna compact was  created to avoid such a dispute by providing for interstate coordination of  efforts to develop and administer the water resources of the river basin.
The compact established the Susquehanna River Basin Commission  (SRBC) to administer its provisions. The SRBC regulates water  withdrawals, diversions, and releases, and is authorized to issue water  quality standards and enforce those standards. The commission also has  established several permanent advisory committees that develop  recommendations for member states to consider on a variety of issues,  including water resources management, water quality, agricultural water  use, and drought management. In addition, the commission establishes  short-term committees as specific needs dictate.
section_title: Appendix IV: GAO Contact and Staff Acknowledgments
paragraphs: Anu K. Mittal, (202) 512-3841 or mittala@gao.gov.
subsections: section_title: Staff Acknowledgments
paragraphs: In addition to the contact named above, Sherry McDonald, Assistant  Director; Fatema Choudhury; Christopher Ferencik; Katherine Freeman;  Susan Malone; Roderick Moore; and Tama Weinberg made key  contributions to this report. Also contributing to this report were Kevin  Bray, Thomas James, Alison O’Neill, and John Smale, Jr.