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The Mississippi River Basin Compact: A New Governance Structure to Save the Mississippi River

By JOHN STACK. Full Text.

The Mississippi River is one of the most significant and yet one of the most imperiled water bodies in the United States. It faces a myriad of problems, from rampant pollution, widespread flooding, wildlife habitat loss, and considerable droughts. Indeed, this is a critical time for the Mississippi River. Fall of 2023 saw River levels drop to extreme lows, with commercial barges grounded and cities deploying emergency measures to protect their municipal water intakes from saltwater intrusion. Meanwhile, polluted Mississippi River water created a dead zone in the Gulf of Mexico spanning hundreds of square miles, just as it has every summer over the past few decades. Only months prior, record winter precipitation brought major flooding to cities along the upper part of the Mississippi.

As demands on the River increase as climate change worsens and the population of the United States grows, these stresses will compound. Droughts will become more consequential, and floods will become more devastating. Impairments to barge traffic will have growing impacts on the economy of the whole United States. Thus, the window of time the country has to put in place preventative measures is slipping and a solution must be implemented quickly.

This Note traces the issues facing the Mississippi back to a problem of governance. Existing state and federal initiatives have failed to make a marked dent in many of these problems by failing to work together in a consistent manner. States individually face a collective action problem, lacking the power or the will to effectuate solutions within their borders. The federal government under existing legislation has also been unable to regulate the Mississippi effectively and now has diminished authority to do so after Sackett v. EPA.

In the face of this interstitial power vacuum, this Note proposes a solution that passes legal muster: an interstate compact. Compacts between states are explicitly enshrined in the Constitution, favored by the Supreme Court, and have a track record of success when it comes to regulating water bodies. Specifically, the Great Lakes Water Compact and the Delaware River Basin Compact provide strong models for watershed governance that could well be scaled to the Mississippi River Basin. These compacts draw upon the legal authority of each sovereign signatory, harmonically regulating their respective waterbodies. This Note broadly outlines an interstate compact for the Mississippi River that combines the powers and interests of the states in the Mississippi River basin as well as the federal government, creating an interstate agency that has the legal authority necessary to effectuate proper and timely decisions. While not purporting to provide a silver bullet to the problems faced by the River, this Note argues that such an interstate compact is the best mechanism from which effective solutions can be borne to sustain this great American body of water for future generations.