An interstate compact is a powerful tool that stands ready to be put to Red River or Missouri River use

Maybe enough dams, dikes and walls can be built to protect the Red River Valley against a 500-year flood. Maybe the Missouri River governors can issue enough resolutions to get the job done in that basin, too.

But if not…

If not, there is another way.

The time may come when the Red and/or Missouri basin states need a stronger, more centralized authority to make decisions. If that happens, then residents should know that not only does the Constitution authorize just such an organization but there also are working examples that successfully have solved problems for more than 40 years.

The constitutional clause is Article 1, Section 10, and the arrangements it authorizes are “interstate compacts.”

Ordinary compacts are fairly common; North Dakota, for example, is a member of at least 21.

But around the country, two river-basin compacts stand out. The Susquehanna River and the Delaware River compacts are agreements struck between the states in those rivers’ watersheds and the federal government. That’s not unusual.

What is unusual is that the compacts create river commissions that have real power.

So, if you’re a natural-gas company, and you want to frack the Marcellus Shale, you don’t go to Pennsylvania or New York for your water permit. You go to the Susquehanna River Basin Commission. The commission controls all significant withdrawals from the Susquehanna and its 50,000 miles of streams.

If you have issues with water quality anywhere between the river’s source near Cooperstown, N.Y., and its mouth in the Chesapeake Bay, don’t take it up with the three states along the route.

Contact the commission, which is charged by those states to “administer, manage, and control water resources in all matters” that have a major effect on the region.

And when the Susquehanna threatens to flood – which it does often, being one of the most flood-prone rivers in America – the commission’s headquarters in Harrisburg, Pa., becomes flood forecast and warning central. Using radar and stream gauges, the commission monitors the river and issues flood and flash-flood warnings, saving an estimated $32 million in flood damage a year.

Interstate compacts such as the Susquehanna and Delaware agreements are much beloved by political scientists.

That’s because they’re Grade A examples of good or even great government. They streamline decision-making while protecting diverse interests, exactly as they’re supposed to do.

That said, there’s a reason why out of all of the river basins in the country, only those two have such far-reaching compacts. The reason is that getting states and the federal government to vest real power in an interstate commission is tremendously difficult.

Could Red and Missouri river states strike the third and fourth such agreements?

As of today, the answer probably is no.

For one thing, the various states are “muddling through” with arrangements that fall somewhere short of an interstate compact.

For another, trust in government is not exactly high these days. So, the chances of empowering a centralized, unelected authority to make real-world decisions seems remote.

But time will tell. To repeat: If the current, more loosely organized arrangements between the states work, then there’ll be little pressure to change.

If they don’t work – well, on the East Coast, such structures didn’t work in the 1940s and 1950s. And that’s how both the Susquehanna and Delaware river commissions came to be.

Here’s a quick look at the Susquehanna River Basin Compact and its role.

Remember this portrait if the Red and Missouri floodwaters continue to rise, and the existing management structures fail. Because that’s when an interstate compact’s time will have come.

A rare resort
“No State shall, without the Consent of Congress … enter into any Agreement or Compact with another State.” That’s the Interstate Compact Clause, and it has been an influential passage for 225 years.

The clause actually is the Constitution’s “only authorized grant to states to work cooperatively across state lines,” said Crady deGolian, director of the National Center for Interstate Compacts, an arm of the Council of State Governments.

So, the agreements have been employed since Colonial days, and most states now have signed on to about 25. Minnesota’s include a Driver License Compact, the Midwestern Higher Education Compact and the Great Lakes Basin Compact, among several dozen others.

Because so many rivers cross state lines, compacts involving rivers rank among the most common. In fact, “show me a river basin, and I’ll show you a compact,” deGolian said.

But compacts that set up regulatory authorities that cross state lines remain rare. Interestingly, one of the earliest efforts actually tried to strike such an agreement between Missouri River states. The concept was new in the early 1950s, so the draft Missouri basin agreement was weak. Even so, “the federal people would have none of it,” wrote William Voigt in a 1973 history of the Susquehanna River compact.

“The huge construction agencies considered it could lead to interference in their spending and building and operating” – and as a result, the proposal died.

Enter Hurricane Diane, which “swept across New Jersey and Pennsylvania and on into New York state in the summer of 1955, causing devastating flash flooding and loss of life,” Voigt writes.

The disaster plus chronic pollution in the Delaware and Susquehanna rivers amplified calls for compacts along those rivers. Eventually, those compacts wound up passing the various legislatures, then Congress, and being signed by the president.

That summary doesn’t do the process justice. For the Susquehanna compact, the reality was that it took 10 years, and it involved such epic battles as the fight against the Constitutional Party.

The ultraconservative party called the compact a “Communist constitution” that “suppresses in power our own state constitution, our governor and our Legislature,” and said the compact’s supporters should be indicted for “aiding and abetting the Communist cause.”

No indictments followed, and President Richard Nixon signed the compact into law on Christmas Eve in 1970. The Susquehanna River Basin Commission finished its year-long 40th anniversary celebration a few weeks ago.

The commission’s staff now numbers about 65. That’s up sharply in recent years, as each Marcellus Shale rig needs about
4 million gallons of water, and the commission has to approve all of those withdrawals.

The four-member commission counts the governors of Pennsylvania, New York and Maryland and the president of the U.S. or their designees as equal members. It operates by majority rule. So, what happens if one commissioner vehemently disagrees with the other three?

Conceivably, the courts might take up the dispute; and if a state ever felt truly aggrieved, it could withdraw from the compact. But the beauty of the agreement is that it helps avoid such quarrels, said Susan Obleski, communications director for the Susquehanna River Basin Commission.

Indeed, that’s the whole point. “The commission provides an administrative mechanism to solve problems that cross state lines,” she said.

Decision-makers don’t have to engage in long-distance dickering between capitals. Instead, they see each other and talk every day, and so build up a working relationship and high level of trust.

Suggested solutions
In July, the Congressional Research Service suggested that Red River Valley states shake hands over such a compact.

“The status quo is an ad hoc approach with multiple states each responding to its own flood hazards, and the federal government providing post-disaster relief assistance,” the CRS described.
In contrast, a Red River Valley Interstate Compact Authority could be “an efficient and cost-effective approach to handling the high cost of maintaining dams and levees, land purchases for water retention, diversion of the river, and reducing the time it takes to complete water management projects.”

Don’t be so sure, said Rep. Collin Peterson, D-Minn.

The trouble with these high-level efforts is that they tend to ignore local interests.

“Sen. Byron Dorgan tried to create a federal Red River authority between North Dakota and Minnesota a few years ago,” Peterson said. “I opposed that. I don’t trust the federal government not to screw this up.”

Then an interstate compact was proposed, and “I opposed that as well,” he said.
“There are cultural differences between Minnesota and North Dakota that are important here.” In particular, he said, Minnesota agencies such as the Department of Natural Resources have had such an environmentalist bent that involving them in planning often shuts projects down. (Peterson’s alternative – the Red River Valley Retention Authority, which he helped create in 2010 – is described elsewhere in today’s “Living with Water” section.)

As for the Missouri River, North Dakota Gov. Jack Dalrymple himself in August proposed an interstate compact between Missouri basin states.

In December, Bob Kerrey, former Nebraska senator and governor, echoed that call: “Creating a 10-state Missouri Basin Commission with real authority would not end the conflicts (between states),” Kerrey said. “It would allow conflicts to be resolved. This is extremely important to do and next to impossible under current law.”

But more recently, political reality has forced Dalrymple to change his mind.

“What I’ve learned for a really big river that’s running through a lot of states and has all the multiple uses the Missouri has, is that it (a compact) is probably the ultimate challenge,” he said.

“What you have working against you is, first of all, the Corps of Engineers, which absolutely has no interest in giving up any of its authority along that river,” Dalrymple said. (As mentioned above, the same dynamic helped kill a proposed Missouri basin agreement in 1955.)

Furthermore, “several of the Missouri River governors don’t trust any of us upstream and would immediately view it as a conspiracy to lessen their power. So, it would be really tough.”

How tough? States along the Tennessee River signed a compact in recent years, Dalrymple said. “I met the attorney; he said it was a career project.” In other words, “it took him his whole legal career.”

To sum up, don’t expect an interstate compact to solve Red or Missouri river problems anytime soon. But let’s conclude with this evaluation from the Council of State Governments:

“Interstate compacts are one of the most powerful, durable and adaptive tools for promoting and ensuring cooperative action among the states,” a council report declared.

“As one of the oldest mechanisms available for states to work together, their use predates the founding of the nation … A distinctly American invention, interstate compacts promote multi-state problem solving in the fact of complex public policy and federal intervention.”

As time passes in the Red and Missouri river basins, this wisdom of that description will grow harder to ignore.

Tom Dennis is the opinion editor
for the Grand Forks Herald.