Ridenbaugh Press/Water Rights

From a May 17 opinion piece by South Dakota Senator John Thune.

Since 2011, I have been raising concerns about a controversial proposal from the U.S. Army Corps of Engineers that would restrict access to Missouri River water and charge users for surplus water taken from Missouri River reservoirs in South Dakota, North Dakota, and Montana.

When the Corps built the dams along the river after Congress passed the 1944 Flood Control Act, it flooded prime state and tribal land with the agreement that by doing so, residents would have access to water from the Missouri River for various purposes. This set a precedent for water users along the Missouri River, and highlights why water users in South Dakota should not be required to pay for water that is legally and historically theirs. The Corps’ proposal infringes on South Dakota’s underlying right to the water, and charging for surplus water on the Missouri River constitutes an unprecedented power grab and could have numerous negative impacts on individuals, tribes, businesses, and water systems in South Dakota.

In September of 2012, I was joined by Senators Kent Conrad (D-N.D.), John Hoeven (R-N.D.), Tim Johnson (D-S.D.), and Jon Tester (D-Mont.) in sending a letter to the Chairman and Ranking Member of the Senate Environment and Public Works (EPW) Committee outlining our concerns about the Corps’ proposal and urged the committee to schedule an oversight hearing on the issue. Although the EPW Committee did not hold a hearing regarding this Corps proposal last year, the continued opposition from the Congressional delegation, respective governors, and attorneys general from our region made it clear to the Corps that we would not stand for this controversial proposal to charge a new surplus water fee.

As a way to prevent the Corps from implementing this unprecedented power grab, I joined Senator Hoeven in introducing an amendment to the Water Resources Development Act (S. 601) to protect states’ water rights and prevent the Corps from implementing its plans to charge for surplus Missouri River water. On Wednesday, May 15, 2013, the Senate accepted our amendment to the Water Resources Development Act, which passed the Senate and now awaits further action by the House of Representatives.

I am pleased my colleagues acted to prevent this massive power grab by the Corps to ensure the federal government honors the long-standing agreements among Missouri River states, tribes, and the Corps of Engineers. I will continue to monitor this legislation as it moves through the House and look forward to ensuring this issue is resolved and states’ water rights are protected.

The Bureau of Reclamation’s Albuquerque Area Office and U.S. Army Corps of Engineers on April 17 released their Annual Operating Plan for the Middle Rio Grande.

As we head into our third consecutive year of severe drought, Reclamation is focused on working closely with all partners to operate to meet both water user needs and flow targets under the 2003 Biological Opinion for the Rio Grande silvery minnow.

In a dry year, the biological opinion requires Reclamation to keep the river wet to Isleta Diversion Dam. Below that diversion dam and in the San Acacia reach, the river can be dried in a controlled manner after June 15. The current model projection for demand to meet flow requirements is somewhere between 65,000 and 80,000 acre-feet, however that forecast assumes minimal monsoons.

The April forecast data released by the Natural Resources Conservation Service shows snowpack volumes throughout northern New Mexico are approximately 45 percent of average. The inflow at El Vado Reservoir is expected to be about 80,000 acre-feet of water or about 36 percent of average. The inflow at Heron Reservoir is expected to be about 45,000 acre-feet or about 55 percent of average.

Reclamation is currently negotiating additional water leases and expects to have approximately 40,000 to 50,000 acre-feet of water to supplement river flows. Reclamation is working closely with the Army Corps of Engineers, Albuquerque Bernalillo County Water Utility Authority, Middle Rio Grande Conservancy District, New Mexico Interstate Stream Commission and other stakeholders to optimize the use of supplemental water. Reclamation will again be working with the Albuquerque Bernalillo County Water Utility Authority to move water from El Vado Reservoir to Abiquiu on the weekends to allow for rafting flows on the Rio Chama.

The U.S. Army Corps of Engineers Mississippi Valley Division Commander Maj. Gen. John Peabody and St. Louis District Commander Col. Chris Hall met with state and local representatives December 20 in Alton, Illinois, to discuss current and future actions the Corps will take to maintain a safe and reliable navigation channel during low water.

The meeting, which was led by Sen. Dick Durbin (D-Ill.), was also attended by Capt. Byron Black, U.S. Coast Guard commander of the Upper Mississippi River Sector, Rep. Jerry Costello (D-Ill.), Rep. John Shimkus (R-Ill.), Lt. Gov. Sheila Simon (D-Ill.) and river industry representatives.

“We’ve been preparing for this since early summer, which means continuous collaboration with our partners the U.S. Coast Guard and the navigation industry to help provide a safe and reliable channel on the greatest, navigable watershed in the world,” Peabody said.

Peabody explained the removal of 890 cubic yards of limestone that began this week near Thebes, Ill., is just one phase of the action the Corps is taking to improve the navigation channel for the river industry. With the removal of the rock, Peabody said, the Corps’ expects that restrictions on barges will not be necessary at this time.

“We remain cautiously optimistic that if we do have any interruptions, it will be short in duration as we continue to maintain a safe and reliable navigation channel,” Peabody said.

The Corps also began increasing releases from Carlyle Lake December 15 to help provide the depth necessary for river commerce to pass Thebes before the rocks can be removed. The full extent of the releases is expected to reach Thebes by Dec. 24. This will provide an additional six inches of depth in this critical reach of the river. Releases will continue if needed until the river level increases through precipitation, or until Carlyle Lake reaches its winter pool elevation. With the additional release schedule, Carlyle Lake is expected to reach its winter pool level in approximately three weeks.

Peabody said the Corps is also looking at the possibility of additional releases from other reservoirs, if that becomes necessary.

During the meeting, Hall explained the dredging actions the Corps is undertaking and plans to continue through the low water. “The Dredge Potter has dredged more than 6 million cubic yards of material on the Upper and Lower Mississippi since it began operations in June.”

“We will continue dredging problem areas, conducting channel patrols and surveys to keep commerce safely moving on the Middle Mississippi,” Hall said.

A proposal by the U.S. Army Corps of Engineers to add fees for certain water uses in the Upper Missouri River area has drawn a storm of rebuttal in the region and even beyond.

The impact could run through numerous water districts and cities including Chamberlain, Springfield, Oacoma and Mobridge.

News media have been critical of the proposal.

The Rapid City (SD) Journal said in September, “In the view of many South Dakotans, the U.S. Army Corps of Engineers’ management of the Missouri River needed to be changed even before last year’s floods. The corps is now proposing changes to the system’s management plan that would allow it to charge fees for using Missouri River water. That’s right. The corps proposes charging users in upstream states for storing water in reservoirs located in those states.”

It also has generated a letter from South Dakota Governor Dennis Daugaard, along with a request from from the state’s senators, Tim Johnson and John Thune, for congressional hearings on the subject.

Daugaard said the plan was not fair and possibly not legal, and “To impose all reservoir operation and maintenance costs on upstream states alone adds insult to that injury.”

Public comment was expected to run through October 10.

On September 12, Senators Johnson and Tune and Kent Conrad (D-N.D.), John Hoeven (R-N.D.), Tim Johnson (D-S.D.), and Jon Tester (D-Mont.) sent a letter to Senate Environment and Public Works Committee Chairman Barbara Boxer (D-Calif.) and Ranking Member James Inhofe (R-Okla.). They urged Boxer and Inhofe to schedule a committee oversight hearing regarding the U.S. Army Corps of Engineers’ plans to restrict access to Missouri River water and to charge users for water taken from Missouri River reservoirs.

The U.S. Army Corps of Engineers, which manages water flow from the six dams on the Missouri River, recently proposed a change that would institute a fee for gaining access to water in Missouri River reservoirs. Senators Thune, Conrad, Hoeven, Johnson, and Tester have concerns that the Corps’ actions contradict state water law, historical and legal precedent, and would have negative impacts on individuals, tribes, businesses, and water systems in Montana and the Dakotas.

From their letter:

We write to request an oversight hearing of the Environment and Public Works Committee regarding the U.S. Army Corps of Engineers’ plans to restrict access to Missouri River water and to charge users for water taken from Missouri River reservoirs.

As you know, the Corps operates six large dams on the Missouri River, and manages water flows from the reservoirs created by these dams. These reservoirs flooded prime bottom land, changing the landscape of our states forever. In exchange for the creation of these reservoirs, our states were promised the ability to utilize these water resources to meet various needs.

Until recently, users have been able to gain access to water in the Missouri River main stem system through an easement application process and associated permits, an approach that is suited to the circumstances of the Missouri River and the needs of the upper basin states. The easement application and permitting process that was in place prior to 2008 respected the rights of Montana, North Dakota and South Dakota water users in terms of access to the Missouri River.

The Corps is now contemplating a major change that would restrict access to surplus water from the Missouri River and to charge a fee for water drawn from the reservoirs. Under the Corps’ proposal, users would have to enter into multiyear purchase contracts with the Corps. While we understand that the Corps is proceeding under a national effort to standardize the allocation of reservoir water, we believe that the Corps’ proposal is contrary to unique legal and historical precedents as it relates to the circumstances surrounding the main stem dam system on the Missouri River that was established pursuant to the 1944 Flood Control Act. Therefore, we ask that the scope of our requested hearing include a review of the unique legal and historical precedents surrounding the Corps’ efforts in this regard. To better understand the legal and historical precedents, we ask that the committee invite Assistant Secretary Jo-Ellen Darcy to testify, as well as South Dakota Attorney General Marty Jackley, North Dakota Attorney General Wayne Stenehjem, witnesses representing tribal leadership, and other relevant witnesses from impacted states.

Access to Missouri River water is essential to expanding the economic base in Montana, North Dakota and South Dakota, where productive farms, businesses, tribes, and municipalities rely on the Missouri River for their livelihood. We believe that charging for the storage and utilization of the Missouri River water would be contrary to legal and historical precedents and would have negative impacts on individuals, tribes, businesses, and water systems in Montana and the Dakotas.

At the Septmeber 10th meeting of the Middle Rio Grande Conservancy District Board of Directors, Vice Chair, Eugene Abeita signed a cost share agreement with Lt. Col. Antoinette Gant with the United States Corp of Engineers.

The agreement commits both agencies to a feasibility study of rebuilding the Rio Grande levees from the town of Bernalillo to Belen.

Results of the study will then be presented to the United States Congress for funding.,

Cost of the study is estimated at roughly $1 million dollars.

The levee revitalization project is estimated to cost $400-$500 million dollars.

Also, the six Middle Rio Grande Pueblos (Cochiti, Santo Domingo, San Felipe, Santa Ana, Sandia, and Isleta) have requested releases of their Prior and Paramount water to irrigate P&P lands within the pueblos.

Non-pueblo members must refrain from using P&P water which is destined for the benefit of pueblo irrigators, only.

The MRGCD has utilized all of its stored irrigation water from upstream reservoirs and only the natural flow of the Rio Grande is available for irrigation but currently, the native flow of the Rio Grande is not sufficient to meet the needs of irrigators in the middle valley.

Should conditions change and additional water becomes available, regular irrigation may resume in the middle valley.

The normal irrigation season is set to end on October 31.

The U.S. Army Corps of Engineers Galveston District said in June that it has developed a partnership with Trinity River Authority in Texas on a number of regulatory issues.

“We have empowered TRA with the authority to issue general permits and make decisions that are compliant with both of our regulations,” said Compliance Section Chief Kenny Jaynes, USACE Galveston District. “Our mutually beneficial relationship enables us to minimize the bureaucratic involvement and expedite the permitting process.”

In addition to streamlining the permitting process, TRA’s partnership alleviates Corps’ regulators from spending hundreds of hours each year on the road and enables 15 permit evaluators to spend more time evaluating approximately 1,500 permit applications that cross their desks each year.

“It’s obviously inefficient for the Corps’ staff to drive two to four hours up here every time someone wants to build a houseboat,” said Area Administrator Richard Gerard, Lake Livingston Project. “The Corps relies on TRA to be its eyes and ears on Lake Livingston and we are happy to be of service.”

Encompassing 83,000 surface acres with 463 miles of shoreline, the Lake Livingston Project boasts 3,873 permitted structures (as of May 2012). Additionally, last year was one of TRA’s busiest for issuing permits.

“There are structures being built and modified all the time on Lake Livingston,” said Jaynes. “On average, a couple hundred permits are issued each year on Lake Livingston. That’s a lot of traveling and as a result, TRA’s assistance saves us a tremendous amount of time and money.”

For the residents and businesses along the shoreline, TRA’s involvement in the permitting process results in a quicker turnaround time.

“The general permit certainly saves time for applicants,” said Gerard. “If there are no outstanding issues, we usually approve the application in three to five business days.”

With more than 700 miles of coastline, rivers, channels and lakes to oversee, the USACE Galveston District’s Regulatory Branch staff is thankful for TRA’s continued commitment in going the extra mile to combine resources and assure maximum value added to the nation and to the Corps’ biggest stakeholders – the American public.

The Missouri River basin saw a slightly wetter than normal October as the Corps continued to evacuate floodwaters stored in the reservoir system. The updated 2011 runoff forecast projects an annual runoff of 60.8 million acre-feet (MAF) for the Missouri River basin above Sioux City, Iowa.

“Runoff above Sioux City during the month of October totaled 1.6 MAF, 124 percent of normal,” said Jody Farhat, Chief of the Water Management office.

“Runoff for the calendar year is projected to be nearly two and a half times the normal annual runoff,” she said. The previous record of 49 MAF was reached in 1997. Total system storage peaked at 72.8 MAF on July 1, making it the highest peak storage number on record in the basin’s history. The previous storage record was 72.1 MAF in 1975.

System storage decreased 1.2 MAF during October, ending the month near 59.9 MAF. River levels have returned to normal throughout much of the basin.

Releases out of Gavins Point Dam are scheduled to remain at the current release rate of 40,000 cfs through early December, which is slightly above the typical fall release rate of 34,300 cfs. They are scheduled to be reduced to 20,000 cfs in early December. Average releases for the month of October were 40,100 cfs. The reservoir will remain near its current elevation of 1207 feet mean sea level during the month.

Fort Randall releases are currently at 39,000 cfs. Releases are expected to remain near that rate throughout the month. October releases averaged 39,300 cfs. The reservoir ended October at elevation 1341.9, down 11 feet for the month. The reservoir will continue to drop in November and is forecast to end the month near 1337.5 feet. The reservoir is normally drawn down in the fall to provide space for winter hydropower generation at Oahe and Big Bend
Big Bend reservoir will remain within its normal elevation range of 1420 to 1421 feet. Releases are expected to range from 26,000 to 44,000 cfs to meet hydropower needs. Average releases for the month of October were 24,700 cfs.

Oahe releases averaged 27,800 cfs for the month of October. Releases will range from 37,000 cfs to 41,000 cfs during November. The reservoir ended the month near elevation 1608.8, essentially remaining level throughout the month. The reservoir is expected to end the month near elevation 1607.7 feet.

The U.S. Army Corps of Engineers on October 20 announced it will open the National Levee Database for public access with a series of public webinars beginning October 27 EDT. The NLD is a living, dynamic information source that provides visualization and search capability for the first time on the location and condition of levee systems nationwide.

“The National Levee Database is the first critical step in understanding levee systems in the United States, including the benefits and potential risks they pose for the communities in which they exist,” said Eric C. Halpin, P.E., USACE special assistant for dam and levee safety. “Although the current database currently contains levee information within the USACE program, we are working closely with other federal, state and local agencies to include the information on other levees on a voluntary basis.”

The database includes attributes of levees and floodwalls relevant to flood fighting, design, construction, operation, maintenance, repair and inspection. Because the location and characteristics of levee systems can be viewed on a map with real-time data from other sources, such as stream gauges and weather radar, it is a useful tool for a variety of public agencies and individuals including flood plain managers, emergency management agencies, levee system sponsors and citizens who live or work behind a levee.

Currently the NLD includes information on more than 14,700 miles of levees systems that are associated with USACE programs, but this is just a fraction of the estimated 100,000 miles of levees estimated to be nationwide.

The proposed King William Reservoir, a water impoundment proposed for years by a local government coalition led by the city of Newport News and permitted by the Army Corps of Engineers, may have hit an irreversible roadblock – federal court.

The project had been rolling forward.

King William Reservoir

In March 2008 the King Williams County Board of Supervisors voted 4 to 1 in favor of an Interim Project Financing Agreement. The agreement states that the county will continue to purchase the 3,000 acres needed for the reservoir site (link to land details elsewhere on webpage) using funds provided by the City. The properties will remain in the county’s name and lease payments on the land will be suspended until the County repays the initial purchase cost. The city has agreed to pay the real estate taxes on the land to make up for lost revenue until the lease payments resume.

The project has, however, also generated strong local opposition.

The Southern Environmental Law Center, which expressed concerns about the project, offered this overview:

A federal court has overturned a permit issued by the Corps of Engineers for a massive impoundment in King William County, Virginia that would have resulted in the single largest, authorized loss of wetlands in the mid-Atlantic region in the last 37 years. The U.S. District Court in D.C. ruled late yesterday that the Corps’ finding that the reservoir proposed by Newport News would not cause significant harm to the environment was “arbitrary and capricious.”

“This is a strong ruling by the court that the environmental costs of the proposed reservoir far outweigh the benefit,” said SELC Senior Attorney Deborah Murray, who represents three environmental plaintiff groups in the years-long legal fight to stop the project. “We’re extremely pleased.”

Newport News and a consortium of five other Virginia localities have sought for decades to build the King William reservoir, which includes a 1,500-acre impoundment on Cohoke Creek (a tributary of the Pamunkey River) and a pipeline to withdraw water from the Mattaponi River, both tributaries to the Chesapeake Bay. The project would destroy 400 acres of wetlands and inundate 21 stream miles, as well as harm the livelihoods and cultural sites of Native Americans. Cost estimates from last year put the project at $289 million.

In 2001, the Norfolk District of the Corps rejected the project on the grounds that it would significantly degrade water and wetland resources and that Newport News had greatly inflated its water needs. Independent studies show that the projected water need for the region would be less than half the amount that Newport News claimed to justify the project. However, the Corps’ North Atlantic Division ultimately issued the permit in November 2005. The Southern Environmental Law Center filed suit in U.S. District Court in 2006 on behalf of the Alliance to Save the Mattaponi, Chesapeake Bay Foundation, and the Virginia Chapter of the Sierra Club.

Federal Judge Henry Kennedy, in his 33-page ruling yesterday, held that the Corps’ finding that no other less environmentally damaging alternatives existed was arbitrary and capricious because of Newport News’ significantly inflated demand projections and the Corps’ failure adequately to examine alternatives in light of the reduced need and higher cost of the reservoir. Likewise, the court found that the Corps’ claim that the wetland mitigation plan would adequately compensate for the ecological function and value of the lost wetlands was arbitrary and capricious.

The judge also ruled in favor of the environmental groups’ challenge to the U.S. Environmental Protection Agency’s failure to veto the permit. He remanded the permit to the Corps for review in light of the court’s findings.

“This project was ill-conceived and environmentally destructive when it was proposed 20 years ago, and the court is saying it still is,” said Jon Mueller, litigation director for the Chesapeake Bay Foundation (CBF). “The immense damage that would be caused by this project was always out of proportion to the alleged need.”

“We sincerely hope that Newport News will finally turn its attention to other, less destructive means of supplying water to the region, including conservation and efficiency,” Murray said. “We also hope the Corps and the EPA, both of which are bound by law to ensure the health of the nation’s water resource

s, ultimately reject this over-sized and harmful project.”

Governor Sonny Perdue said November 6 that the state of Georgia has withdrawn its motion for preliminary injunction filed against the U.S. Army Corps of Engineers. The motion was filed on October 19 in the Middle District of Florida to require the Corps to alter the Interim Operations Plan. The IOP establishes the guidelines for the release of water from federal reservoirs in the Apalachicola-Chattahoochee-Flint River Basin including Lake Lanier and West Point Lake.
“With the recent intervention by President Bush to compel our federal partners to come to the table, I am optimistic that this matter can be resolved outside of a courtroom,” said Governor Sonny Perdue. “I never want to resort to legal action to settle disputes, but the seriousness of this drought forced me to explore every option available to protect Georgia’s water resources.”
The withdrawal comes in response to the announcement on November 1 that the Corps of Engineers has recommended to the U.S. Fish & Wildlife Service to alter releases from Georgia’s federal reservoirs and send less water downstream.
On November 1, the Corps issued a letter to the U.S. Fish & Wildlife Service requesting a formal consultation for proposed modifications of the IOP. The Corps proposed to incrementally reduce the amount of water released in the Apalachicola River from 5,000 cubic feet per second (cfs) to 4,150 cfs and allow storage of excess inflows in reservoirs. In an unprecedented commitment on turn-around time, the U.S. Fish & Wildlife Service is expected to review the recommendation and make a ruling by November 15, 2007.
The state of Georgia has reserved the right to re-file this motion or file a new motion for preliminary injunction if this new round of discussions and cooperation fails to result in sensible and lasting solutions to protect drinking water for Georgians as well as the interests of Alabama and Florida.
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