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.

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.

With the Missouri River below flood stages from Fort Peck, Mont. down to the mouth just north of St. Louis, Miss., and water off the levee system, the U.S. Army Corps of Engineers, Omaha and Kansas City District commanders, have declared an official end to the Missouri River Flood of 2011.

“What this means is that we are at a point where we can carefully examine the damages to the levee system and the dams,” said Col. Anthony Hofmann, Commander of the Kansas City District. “We are in the process of completing damage assessments of infrastructure in order to now assign finite dollar amounts to the repair bill. We expect to complete the full assessment of damages to dams and levees by mid-November.”

Under Public Law 84-99, once the flood has been declared officially over, the Corps will transition from emergency flood fight operations to recovery and repair of dam and levee structures. Throughout the flood event, the Corps has expended approximately $76 million to put temporary flood risk reduction measures into place throughout communities in the basin.

This past weekend, Omaha District Commander, Col. Robert Ruch viewed the river by helicopter during aerial surveillance. Though the end of the flood has been declared, Ruch acknowledges there is still water trapped in the flood plain and some water is still flowing through some levee breaches. Most of the trapped water is expected to drain once the flows out of Gavins Point Dam are decreased to winter flow rates of 20,000 cfs.

“The key here is the water is now off the levees so there is a sigh of relief to be had there because there is less stress on them,” said Ruch. “Now, we can shift our focus from levee surveillance to rehabilitation of the system.”

Due to the limited availability of resources, the Corps will not be able to make repairs to every structure that has sustained damages during this event, said Hofmann. The Corps will use a risk-based decision-making process to prioritize repairs, holding life and safety as paramount factors in repair and multi-year investment decisions.

Within its authority, the Corps has moved fiscal year 2011 funding from projects that allow for reprogramming of funding dollars in order to provide a preliminary source of funds to start developing scopes of work and putting contracts out for bid this fall. So far, $27.7 million dollars has been set aside to jump-start the repair process.

In the interim, the Corps awaits funding by Congress for the remainder of repairs, which early estimates indicate will total approximately $1 billion throughout the region. Construction is expected to begin as early as mid-November.

Flooding along the Missouri River continues as shown in Landsat satellite images of the Nebraska and Iowa border. Heavy rains and snowmelt have caused the river to remain above flood stage for an extended period.

A Landsat 5 image of the area from May 5, 2011 shows normal flow. In contrast, a Landsat 7 image taken July 17 depicts flood conditions in the same location.

A national overview map of streamflow provided by USGS WaterWatch graphically portrays the immense geographic extent of flooding in the Missouri River basin.

Landsat is a joint effort of both USGS and NASA. USGS conducts Landsat operations and NASA develops and launches new satellites that meet USGS requirements. In addition to imagery of natural hazard events, Landsat provides valuable data for land use research and advances the Department of the Interior’s important role in land remote sensing under the President’s National Space Policy. Landsat images are unique in that they provide complete global coverage, they are available for free, and they span nearly 40 years of continuous earth observation. No other satellite imagery has that combination of attributes.

Monitoring both floods and droughts, the USGS WaterWatch internet site displays maps, graphs, and tables that describe current and past streamflow conditions for the United States. The real-time streamflow data is generally updated on an hourly basis.

Officials of Crow Tribe in Montana have set for March 19 a significant vote on whether to accept and ratify the Crow Tribe Water Rights Settlement Act of 2010 and the Crow Tribe-Montana Water Rights Compact.

Enrolled members of the tribe are eligible to vote.

The compact won agreement from President Barack Obama in December, and includes $460 million for water projects, as well as confirmation of a number of water rights.

Missouri Basin/US Army Corps Engineers

The Des Moines Register reports today about the upcoming (starting in October) re-evaluation of the uses and management of the Missouri River, one of the nation’s longest and most contested.

The Register notes, “An exhaustive five-year, U.S. Army Corps of Engineers study of the Missouri begins in October. The $25 million study is expected to set up another round of battles among states, tribes and organizations with competing visions of the historic waterway. At issue: Everything from future drinking supplies and cooling water for power generation, to flood control, barge traffic, habitat protection, untapped recreational opportunities and potential economic gain.”

The Army Corps provides regular annual reports and operating plans for the river, but also conducts some periodic long-range studies and planning.

North Dakota Governor John Hoeven on August 13 met at Fort Stevenson State Park with Army Corps of Engineers officials and members of the Mississippi River Commission to stress the need for drought conservation throughout the Missouri River Basin.
Hoeven said lower Missouri River and Mississippi River interests want water for barge traffic. Good drought management practices enable higher and more stable water levels in the Missouri River basin, while providing greater predictability for the lower reaches of the Missouri River and the Mississippi, according to Hoeven.
“Shortening the navigation season early in a drought cycle, instead of waiting until the region is deep into it, will help protect fisheries, recreational interests, water intakes and other vital uses in the upper basin, resulting in greater predictability for navigation downstream,” Hoeven said. “If reservoirs are drawn down too far, it results in a ‘preclude,’ which means adverse impacts to upstream interests, and no navigation season at all downstream. That serves nobody’s interest.”
The seven-member panel appointed by the president is touring the entire Missouri River system, which runs 2,341 miles from its origins near Missouri River Headwaters State Park near Three Forks, Montana, through North Dakota and other states until it meets the Mississippi River at St. Louis, Missouri.
North Dakota Governor John Hoeven