V-334 



General Comments 



The starting point in drafting "model" legislation is o question-what is wrong with existing 

 laws and legal institutions? The most frequent response when this question is asked with 

 reference to Chesapeake Bay is-"fragmentation of authority." It is true that there is no 

 shortage of Bay government. The Federal Government, the governments of Maryland and 

 Virginia, the governments of their respective counties and cities, and an interstate compact 

 commission, all have spheres of governmental authority. 



But this is not the crux of the problem. The Federal Government has demonstrated its wi II- 

 ingness to cooperate with, and to defer to, effective State action. The Federal water quality 

 program affords a good illustration. The legislatures of Maryland and Virginia have zealously 

 avoided the delegation of significant powers over the Bay to counties or cities. Although the 

 Bay is divided between Maryland and Virginia, both have a significantly broad territorial ex- 

 panse to effectively manage their respective portions. The only extant compact commission 

 is limited in power to the Potomac fishery. 



Hence the problems which exist are to be found primarily within Maryland and Virginia State 

 government. Existing State legal institutions suffer from two major inadequacies. First, the 

 State legislatures, clinging vestigially to the nineteenth century, have attempted to adminis- 

 ter the Bay themselves. Rather than delegating broad managerial power to the executive 

 branch, they have responded to narrow problems with narrow legislation. These responses 

 rapidly become out-of-date but linger on as law. In short, the legislatures have refused to 

 give administrators the "range of choice" necessary for effective management. 



Second, these powers which have been delegated by the legislatures have been scattered 

 throughout the States' administrative apparatus. Various State agencies have duplicating, 

 overlapping and sometimes inconsistent powers, but in neither Maryland nor Virginia is there 

 a single agency with the requisite authority to plan and coordinate the administration of the 

 Boy and its resources. 



In recent years the most popular model for meeting the problems of river basin management has 

 been the Federal-interstate compact. The success of the Delaware River Basin Commission 

 has led to the negotiation and proposal of similar compacts for the Potomac and Susquehanna 

 Rivers. Such a management model has certain advantages for the Chesapeake Bay. A compact 

 between Maryland, Virginia, the United States (and perhaps Delaware) could be given terri- 

 torial jurisdiction over the whole Bay. Theoretically, at least, the State legislatures could 

 delegate broad powers to the compact commission which could exercise them in coordinated, 

 autonomous fashion (free from State legislative interference) for the compact's duration. 



But the compact mode] also has disadvantages. It adds yet another tier to the existing surfeit 

 of Bay governments. It would be difficult to integrate such a compact with the already nego- 

 tiated and proposed Potomac River Basin Compact which has powers over the esfuarine por- 

 tions of the Potomac. Finally, it would be difficult to negotiate a compact which cives ade- 

 quate powers to the governing commission and still would be acceptable to both Virginia and 

 Maryland. Although Maryland and Virginia hove a common interest in various aspects of Bay 

 management they also have disparate and competitive interests in preserving the Boy resources 

 within their respective boundaries exclusively for themselves and their citizens. At best, such 

 a compact would take years to negotiate; at worst, it would be emasculated through the reten- 

 tion of powers by the States. 



