Statement of the Federal Commissioner

to the Subcommittee on Commercial and Administrative Law

December 19, 2001

Congressman Barr, I am Lindsay Thomas. I appreciate the opportunity to be here and it is good to see you again. I currently am, and have served since 1998 as, the Federal Commissioner for the two Compacts which are the topics of your hearing today. As I hope you will sense, these are important topics to me.

At the outset, I want to underscore my appreciation for the commitment of Congress, the States, and the Federal agencies to the Compact process. Long deliberations from Congress and State Legislatures brought about the unusual opportunity to make lasting determinations about the future of regional water resources in the form of the Alabama-Coosa-Tallapoosa (ACT) River Basin Compact and the Apalachicola-Chattahoochee-Flint (ACF) River Basin Compact. In the Southeast region of the United States, our economy, our culture, and our society are structured around our water resources – particularly these crucial river basins. How we manage these priceless natural systems will determine the quality of life for years to come for us, and for future generations. As a former member of Congress, it is my sincere belief that this is a rare chance to resolve cooperatively a basinwide management plan that will provide economic prosperity while assuring the continued wise stewardship of these vital natural resources.

In my view, and in the view of the Federal agencies with which I work, continued commitment to the goal of a basinwide management is critical. We are facing an enormously complex situation and one with no better solution to our collective stewardship responsibilities for the resource than a cooperatively reached agreement. These are tremendous and vast resources we are discussing; the ACT and ACF River Basins combined span 40,000 square miles of the southeast. The Basins cover a diversity of habitats and support a wide variety of plants and animals while also providing for innumerable human uses. It is clear that our actions and decisions will affect many people and many interests for decades to come. One need look no further than the circumstances which gave rise to the Compacts to confirm that a collaborative solution that provides for long-term basinwide management holds the best potential for our region’s well-being. Without a Compact solution, we sacrifice a hard-won and key advantage -- the valuable opportunity for an effective alternative to piecemeal management of shared resources. In the interest of the Region, that is too high a sacrifice.

For a moment, assume the negotiations were to fail. What would follow? It is a certainty that there would be a long, expensive, and very arbitrary period of disputes and litigation. This alternative would cause the loss of the comprehensive basinwide focus that is essential to long-term wise stewardship decisions. Furthermore, if we were to turn to the court system for judgment, we would lose the advantage of the vast and valuable expertise that has come together to work towards the success of the Compacts. State and Federal experts in hydrology, economics, biology, recreation, drought, and all other fields pertinent to these negotiations are gathered now. A vast array of committed stakeholders is also engaged in the process at this time. It is my belief that these parties will go a long way in supporting a conscientious and balanced agreement, even if it comes in stages, with responsible commitment to follow through in implementation and to maintain ongoing wise stewardship. In the litigation arena, these stakeholders – the rightful stewards of these resources – will be left helplessly walking the sidelines or, perhaps worse, pitted against each other.

Without the cooperative framework that the Compacts foster, the alternative is an inadequate piecemeal arrangement. Although eventually each issue would no doubt be addressed, the results would likely range. At best, short term needs would divert limited technical and management assets away from long range goals essential to stable growth and protection of the natural systems. Or, at the worst, short term issues would grow to hold such prominence that widely embraced long-term resource goals would never receive attention or enjoy a common framework for debate. Long term stability and ecosystem health would suffer. Avoiding that result is the intrinsic value of a Compact-based solution.

I believe all involved parties also recognize the precedence of this process, not just for the Southeast, but for the entire American East and beyond. We must all work together, taking advantage of this hard won opportunity, to provide the vital leadership to show how shared resources and shared concerns ought to be managed. The Compacts provide the occasion to create a unique template where natural resources issues are addressed on a comprehensive level, involving all interested parties in proactive basinwide management. Success here will challenge and guide other regions to do the same.

Although I fully recognize that the undertaking is formidable and that, under the Compact, consensus is essential at the initial State “agreement” (Article VII(a)) stage, I have continued to underscore that the States do not face the task alone. The Federal team has continued to offer assistance to the States in public settings, in informational discussions, providing technical evaluation, affording technical assistance, offering reactions to their evolving concepts, and, more recently – because I thought the time had been reached – setting forth a more active federal role.

Of course, the formulative stage of the allocation formula is addressed primarily in Article VII (a) of the Compacts. The purpose is simple: The parties are to develop an allocation formula for equitably apportioning the surface waters of the ACF [ACT] Basin among the states; and, they are to do so, while protecting the water quality, ecology and biodiversity of the ACF [ACT], as provided in the Clean Water Act, 33 U.S.C. {{1251 et seq., the Endangered Species Act, 16 U.S.C. {{1532, et seq., the Rivers and Harbors Act of 1899, 33 U.S.C. {{401 et seq., and other applicable federal laws

Article VII (a) provides that, when an allocation formula for a basin is unanimously approved by the State Commissioners, an “agreement” among the States arises. That allocation formula agreement becomes effective upon receipt by the Commission of a letter of concurrence from the Federal Commissioner or, in the occasion of the Federal Commissioner electing not to send a letter of nonconcurrence within 255 days. However, if a letter of nonconcurrence from the Federal Commissioner is sent, and all parties are not able to renegotiate a solution to federal concerns, then Article VIII(a)(4) provides that the Basin’s Compact will terminate. Of course, as Federal Commissioner, I want to do everything I can, consistent with the Compacts, to avoid that result. To facilitate a resolution of differences, the Compacts provide that my reasons for nonconcurrence are to be set forth specifically and to be based solely upon Federal law.

Thus, the Compacts recognize – appropriately, I think – the sovereignty of the States involved and their legitimate interests and at the same time emphasize the Federal Government’s – and the Congress’ – interest in assuring that concerns of Federal law are addressed. In fact, they include a number of “Reservations” added – in important measure as a result of Former Speaker Gingrich’s efforts – to assure that Federal interests were taken into consideration.

Article XI of the Compacts recognizes “the importance and necessity of public participation in activities of the Commission, including the development and adoption of the initial allocation formula and any modification thereto” and provides that the Commission will adopt procedures ensuring this public participation. The Commission Operating Guidelines have identified thresholds for that participation. Assuring the public’s participation, as provided for in the Compacts, has been a constant theme for me as Federal Commissioner. Furthermore, I have consistently encouraged the States to provide additional opportunities for public participation. Indeed, even though I was a strong advocate for mediation in the summer of 2000 to avert what appeared to be an alarming risk of the collapse of the negotiations, at the proper time I was an equally strong advocate in encouraging the States to return to an inclusive and public forum.

The Compacts’ “Reservations” (Section 4) include provision for Federal agency representatives to attend Commission meetings and, at the request of the Federal Commissioner, to participate in technical committee meetings “at which the basis or terms and conditions of the allocation formula or modifications to the allocation formula are to be discussed or negotiated.” Section 5 of the Compacts authorize Federal agencies to enter cooperative relationships with the Commission, to conduct studies and monitoring programs in cooperation with the Commission, and to furnish assistance to the Federal Commissioner. In the service of these provisions, the Federal agencies have had a strong commitment to providing technical assistance to the Commission, its Committee, and State staffs.

We have provided comments on State proposals in a variety of formats. We have provided written letters from the various Federal agencies raising specific questions in response to State proposals. We have encouraged question and answer sessions with the States and I was particularly pleased that in July, 2001, the States sponsored a public dialogue among staffs of the State and Federal agencies with regard to the then current ACT (July 6, 2001) and ACF (May 25, 2001) draft allocation proposals. Thereafter, we provided further written questions to the States. The fact that the public attended and listened to the July 9 dialogue was, I believe, a significant contribution to the general understanding of the complexity of the issues confronting the States at this stage of the compact processes.

As I mentioned earlier, the Compacts make clear both their respect for the States and their sovereignty and the necessity of attention to Federal concerns. I have tried to keep this mutual respect in mind, along with concern for public access, as I have considered ways to assist the States in their initial formula development. In that regard, and because I believed the States have reached a point in time in the development of their formula concepts that would make it useful, I have now offered a more “active” Federal involvement to the States. Although technical expertise has played a crucial role in the Compact process up to now (and will continue to play that role), the Federal agencies also have a program perspective that offers additional benefits to the dialogue. In the course of managing Federal programs, the agencies are responsible for recognizing and addressing a variety of issues – key areas of interest. In technical expertise discussions, the States might see the results of these key areas of interest but might not see, or have an opportunity to understand fully, why the areas are significant to the federal agencies. Thus, in November, I proposed that the States explore basinwide development through the eyes of Federal agencies and the key areas of interest that would guide their own thoughts if asked to craft such a formula. Although not an exhaustive list, I identified six areas of key interest to Federal agencies.

Those areas were: Adaptive Management; Public Participation in Implementation; Compensation for Impacts on Hydropower Capabilities; Congressional Reauthorization; and, Operational Practicability and Flow and Reservoir Levels. I envisioned the Federal agencies, working with the State teams, as outlining why and how these six items are key issues. By looking at these topics through our eyes, I hoped that the States would better understand the Federal perspective. Even more, I hoped that, in looking at the challenge through the eyes of another, the States might find new ways to close the few remaining gaps among themselves – gaps which may seem significant if viewed only from the perspective of today but which may be workable from a broader perspective.

Our Federal team was very pleased that the ACT States responded immediately and favorably to a more active federal role. Those States agreed to hold a public session where the Federal agencies would outline the legal and program framework of these six key areas and, indeed, offer their “current impressions” with respect to possible language suggestions. Of course, we were careful to make clear that we are not prejudging the ultimate concurrence process under Article VII(a) and the ACT States respected that. The response was tangible evidence of their commitment, as well as our own, toward achieving the important goal set by the Compacts.

The public session in Montgomery, Alabama, on December 13 was warmly received by all involved – the ACT States (Alabama and Georgia), the Federal agency representatives, and the public. I believe that it was apparent to all present at that meeting that the results were very favorable. The constructive dialogue among Federal and State participants, the quality of the comments, and the focus of the questions last week were excellent. Further evidence of progress was that the ACT States and the Federal team agreed that we would continue to work together on these key issues and that we would schedule additional meetings in the near future. Our Federal team also noted that, based on its current impressions, if these key areas of Federal interest were resolved through public dialogue the ACT proposal would be promising.

I commend all of the States, both the ACT States and the ACF States (Alabama, Florida, and Georgia), for their hard work and progress to date. I also commend the Congress for the foresight to authorize this process through these Compacts. With the effort to date, I can compliment Alabama’s expressed commitment to seek an extension of the ACT Compact and I strongly encourage the other States to consider the same both for the ACT and for the ACF.

An extension of both Compacts would provide the opportunity for meetings of a similar nature with Alabama, Florida, and Georgia representatives on the ACF Basin. I feel so strongly in this regard, in fact, that I urged the ACF States by letter on December 14, 2001 to do just that. Our six key areas of federal interest are equally applicable to that Basin and we have urged and will continue to urge these ACF States to join with us in this new effort. Agreeing on extensions would avoid the loss of the important progress already made.

Of course, formula development and adoption is the first stage. It will, no doubt, involve consideration of Congressional reauthorization and action by this body. But, once that has occurred (and it will, I believe, if we all stay committed and focused), then our Region will have laid a cornerstone for its prosperity and stability for the next 30 to 50 years while protecting indefinitely the integrity of these priceless natural systems. The only way I see to achieve this extraordinarily important goal is to have a cooperative comprehensive plan framed to ensure continued wise stewardship. This is a process that is deserving of every chance we can give it to succeed. We must all work together to foster this attitude and protect the process from impatience, political expediency, and a rush towards litigation.