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Show a declaratory judgment for the equitable apportionment of unused waters. De- cisions of the Supreme Court rendered in interstate water controversies have served the purpose of determining the salient principles of equitable appor- tionment, the application of which in a compact may accomplish a more work- able and appropriate apportionment of waters among states for present and future beneficial use* Continued litigation, involving the resources of great river basins* in the end is almost certain to impose an extension of federal jurisdiction and centralized authority in some form* It is elemen- tary that if the states are to exercise their legitimate functions respect- ing the water resources of the West they must be active in amicably ad- justing controversies over them. RECENT DEVELOPMENTS AFFECTING COMPACTS The awakened consciousness of the necessity of compact adjustment arises in a large degree from certain recent developments which may be sum- marized as follows! • . 1. The so-called New River (United States v. Appalachian Electric Power Company, 311 U. S» 377) and the Red River (Oklahoma v Atkinson^ 313 U. s. 508) decisions of the Supreme Court of the United States, announced in the • last two years, approve a broad interpretation of the "commerce clause" of the federal Constitution. These decisions,, as apparently interpreted and followed by some federal agencies, threaten to restrict, delay, and in some cases possibly foreclose economically sound and desirable development o£ water resources under state laws for irrigation and other beneficial con- sumptive use purposes. They may result in a federal policy which would place hydro-electric development in the arid sections of the country ahead of agricultural uses of water. One of these deoisions holds that a river may be declared navigable if such navigability will result from a reasonable expenditure .of money. The other decision holds that the power of Congress, under the "commerce clause" of the federal Constitution to protect a naviga- ble river from floods, extends to control of the water of its tributaries. There is no disposition on the part of the states to question the power of the Federal Government to protect the navigable capacity of rivers and recognized federal uses where clearly authorized by the federal Constitution. But the danger arises from an attempted-reliance on the "commerce clause" as the basis of the exercise of complete federal jurisdiction over all uses of water as opposed to the heretofore recognized control of these resources in arid Regions for beneficial consumptive use;under state law* It is de- sirable that there be a proper correlation of vthe several uses of water so as to bri_ng about the highest beneficial use. This cannot be accomplished in the interest of irrigation in the West, however, if the state laws are to be disregarded in the end and the "aommerce clause" relied upon to im~ pose what amounts to complete federal control» 2* The Federal Government in the case of Nebraska v» Vfyoming and Colo- rado, United States Intervened, is taking the position that the United States is the owner of all. unappropriated waters of non-navigable streams* The position is taken irrespective of the express provisions of Section 8 of the Reclamation Law of 1902, directing the Secretary of the Interior to . -66- |
