¹ Missouri Basin Survey Commission, Missouri: Land and Water (1953), p. 265 Google Scholar. (The Commission's report will be cited hereafter as MBSC Report.) Cf. The Report of the President's Water Resources Commission, 3 vols. (1950), Vol. 1, pp. 10–11 Google Scholar.

² Council of State Governments, Revised Draft, Missouri River Basin Compact (1953)Google Scholar. (Hereafter cited as Draft Compact.) See MBSC Report, p. 249: “The draft compact was discussed by the [Missouri River States] Committee in its meeting at Omaha, Nebr., on December 1, and was approved unanimously with a few relatively minor changes.” The authors acted as consultants to the drafting committee which prepared the compact.

³ “We recognize one significant difference between the Missouri Basin now and the Tennessee Valley when the Authority was created. Many large projects in the Missouri Basin are constructed or in the process of construction.” MBSC Report, p. 9. See also Draft Compact, p. 1.

⁴ The O'Mahoney-Milliken amendment to the Flood Control Act of 1944 gave irrigation priority over navigation, 58 Stat. 887. See also the 1945 Rivers and Harbors Act, 59 Stat. 10.

⁵ “Many unanswered questions concern water use, flood control and conservation. Witnesses before the Commission disputed the effectiveness of watershed treatment in flood control. The data that would enable people to agree on this and to give united support to a comprehensive program do not yet exist.” MBSC Report, p. 223.

⁶ Report of the President's Water Resources Policy Commission (1950), Vol. 2, p. 250 Google Scholar.

⁷ Missouri River Basin Agricultural Program, H. Doc. 373, 81st Cong., 1st sess. (1949).

⁸ Baumhoff, Richard G., The Dammed Missouri Valley (New York, 1951)Google Scholar, Chs. 10–12, 14. See also Commission on Organization of the Executive Branch of the Government, Reorganization of the Department of the Interior (1949).

⁹ “The Committee was instrumental in bringing about the compromise that resulted in the Congressional authorization of the Pick-Sloan plan.” MBSC Report, p. 249 Google Scholar.

¹⁰ MBSC Report, Part VIII, Ch. 2.

¹¹ Sec. 1 (a), 58 Stat. 887, 888 (1944). See also MBSC Report, pp. 250–51: “Upon completion of all investigations, and prior to submission of survey reports to Congress, the Chief of Engineers and the Secretary of the Interior must submit a copy of their proposed reports to each affected State. The Department of Agriculture by administrative decision follows the same practice. Within 90 days after receipt of the proposed report, the written reviews and recommendations of each State are submitted to the Chief of Engineers or Secretary of the Interior. These comments are attached to the project report which is submitted to Congress.” See also Report of President's Water Resources Policy Commission, Vol. 3, p. 520 Google Scholar. A similar provision requires consultation with the heads of state agencies concerned with wildlife resources. 60 Stat. 1080 (1946).

¹² Baumhoff, pp. 169–71.

¹³ MBSC Report, Part IV, Ch. 8.

¹⁴ MBSC Report, p. 9.

¹⁵ While this appears to be the Survey Commission's view, some of the group's suggestions move in a divergent or even a contrary direction. At one point the Commission proposes that the new agency operate power transmission lines. MBSC Report, p. 232. The new agency would also impinge on the jurisdiction of the Federal Power Commission in at least two important respects: it would have authority to veto FPC grants of licenses for hydroelectric power development projects in the Basin, and it would also be able to review and alter power rates at its own discretion (pp. 265–66).

¹⁶ There would be the usual provisions empowering the Commission to retain a suitable staff and it also would be authorized to borrow or contract for the services of other federal or private personnel.

¹⁷ MBSC Report, p. 265. This power of review and recommendation does not extend to any but federal projects. The federal-interstate compact proposed by the Council of State Governments would give the basin agency power to review and make recommendations concerning projects of all governmental agencies and private developments as well. Draft Compact, Art. VII, par. 1.

¹⁸ MBSC Report, p. 8; see also Part VIII, Ch. 3.

¹⁹ MBSC Report, p. 9.

²⁰ Draft Compact, pp. 4–11.

²¹ See note 15. The meaning of the word “direct” as used by the Survey Commission is also open to varying interpretations because no definition is given. Usually the Survey Commission uses the term in the context of “directing” studies and planning activities. But at one point the term appears in conjunction with the following: “The Commission shall be responsible for carrying out Congressional policies regarding land and water use …” and “It shall exercise central control of river operations….” MBSC Report, p. 266.

²² Draft Compact, p. 3. All review procedures under the compact are limited to cases of “substantial effect on interstate relations in the use of water.” The proposed Commission would have power to “Issue rules and regulations governing the submission of project plans and operations to it and in such rules and regulations may establish principles for determining what constitutes ‘substantial effect’…” (Art. VII, par. 7).

²³ Draft Compact, Art V, par. 1, reads in part: “The Commission shall be composed of one Commissioner from each party state designated or appointed in accordance with the law of the state which he represents and serving and subject to removal in accordance with such law, and not less than three nor more than five Commissioners of the United States designated or appointed by the President in accordance with the applicable laws of the United States and serving and subject to removal in accordance with such laws.”

²⁴ At least five of the seven principal states and one commissioner representing the United States must be present to constitute a quorum.

²⁵ During the fiscal year 1953, the ten states in the basin spent $36,666,000 on Missouri Basin development. The Survey Commission indicates that in the coming six years the states will be required to spend an additional $234,445,000. MBSC Report, p. 84.

²⁶ For example, the Survey Commission recommends that the states enact comprehensive land use laws and that they review and alter their water laws. It is further recommended that the new basin agency make proposals from time to time to the states for changes in their laws designed to remove “impediments which the laws of the states present to particular projects or to optimum development in general.” MBSC Report, pp. 17–18.

²⁷ Of course the supremacy clause of the Federal Constitution (Art. VI, sec. 2) provides that national laws shall prevail over conflicting state laws. But this is of significance principally where there is conflict of substantive requirements in areas where the national government is exercising one of its delegated powers. The supremacy clause does not apply to the internal organization and administration of state agencies or to the evolution of positive state policies.

²⁸ It has been pointed out that the Tennessee Valley Authority has encountered difficulties of this sort. See Selznick, Philip, TVA and the Grass Roots (Berkeley, 1949), pp. 169–79Google Scholar. Difficulties are much more likely to arise in the Missouri Basin than in the Tennessee Valley, since the former is larger and more diverse. Furthermore, as the Survey Commission itself notes, there is strong sentiment in the Missouri Basin for regional representation in policy formulation.

²⁹ A state statute which conflicts with a compact is invalid and unenforceable. Green v. Biddle, 8 Wheat. 1 (1823); State v. Hoofman, 9 Md. 28 (1856); President, Managers C. v. Trenton City Bridge Company, 13 N.J. Eq. 46 (1860); State v. Faudre, 54 W. Va. 122 (1903).

³⁰ See TVA and the Grass Roots (cited in note 28), Ch.7, pp. 262–66; see also Fesler, James W., Area and Administration (University, Alabama, 1949), p. 99 Google Scholar: “The Valley Authority as presently conceived and as exemplified in TVA is a wholly federal agency that is hierarchically responsible to a nationally elected President and a national Congress. It is not a joint creature of federal, state and local governments of the area, nor is it responsible, in the literal sense of democratic government, to the people of the valley in which it operates. In legal status, it is as much a part of the federal bureaucracy as the Department of the Interior or the Treasury Department … accurate analysis of the Valley Authority therefore cannot be based on a glowing conviction that here is the epitome of grass roots democracy.” This statement would apply with equal force to the agency proposed by the Survey Commission.

³¹ It is true, of course, that the region's representatives in Congress are also responsible to the region's electorate, but, as the Survey Commission indicates, the objective is a voice for the region at the planning level as exemplified by the proposed agency. See Fesler, p. 143.

³² MBSC Report, p. 85.

³³ The views of the Commission majority on the compact approach are stated at pp. 9–11 of the MBSC Report.

³⁴ West Virginia ex rel. Dyer v. Sims, 341 U.S. 22 (1951). Previous cases on this point are Green v. Biddle, 8 Wheat. 1 (1823); Delaware River Joint Toll Bridge Commission v. Colburn, 310 U.S. 419, 427 (1940); Cotton v. Walton-Verona Independent Graded School Dist., 295 Ky. 478, 484; 174 S.W. 2d 712, 715 (1943); Gulf Refining Co. v. Stanford, 202 Miss. 602, 606; 30 S. 2d 516, 518 (1947).

³⁵ The federal government is represented on the commissions established by the Rio Grande Compact, 53 Stat. 785 (1939); Potomac River Compact, 54 Stat. 748 (1940); Ohio Valley Water Sanitation Compact, 54 Stat. 752 (1940); and the Upper Colorado Basin Compact, 63 Stat. 31 (1949).

³⁶ Willoughby, Westel W., The Constitutional Law of the United States, 3 vols. (New York, 1929), Vol. 2, pp. 1253 Google Scholar.

³⁷ As has been noted, the compact requires assent by seven states. A table contained in the report of the Survey Commission shows 50% of Kansas and 76% of Wyoming as lying within the Missouri Basin. Participation by these states is required in the compact plan, but not in the Commission proposal. MBSC Report, p. 84, Table 1.

³⁸ MBSC Report, pp. 13, 14.

³⁹ “Any two or more of the participating states who by legislative action enter into supplementary agreements for the regulation and abatement of pollution may designate the Commission to act as a joint agency for this purpose. Any two or more of the member governments who by legislative action or constitutional authority enter into supplementary agreements for the development, management and maintenance of joint forests, preserves, parks or recreational areas or facilities, or for the development, use and management of water and related natural resources in addition to that provided by this compact may designate the Commission to act as a joint agency for any of these purposes. Except in those cases where all member governments join in such designation, the representatives in the Commission of any group of such designating governments shall constitute a separate section of the Commission for the performance of the function or functions so designated and with such voting rights for these purposes as may be stipulated in such agreement; provided that, if any additional expense is involved, the member governments so acting shall appropriate the necessary funds for this purpose.” Draft Compact, Art. XI.

⁴⁰ MBSC Report, p. 248.