DEADWOOD — Last year the U.S. Army Corps of Engineers began a rulemaking process with the intention to manage and sell what it deemed “surplus” water from the reservoirs in the Missouri River Basin. The project, referred to as the Missouri River Water Storage Reallocation Study, has startled and incensed nearly every government official in every state the Missouri’s water flows through, moving them to release public responses to the study detailing their grievances, which essentially boil down to this: the U.S. Army Corps of Engineers is ignoring more than 100 years of federal legislation reserving water rights of the Missouri River’s natural flows to the states and American Indian tribes in a plan to appropriate “surplus” water and charge for its limited use.
The Corps’ Missouri River Water Storage Reallocation Study is so reviled that the U.S. Senate recently passed an amendment (The States’ Water Rights Act) to the Water Resources Development Act to block the Army Corps of Engineers from proceeding with the rulemaking detailed in the study. The House will get a stab at the amendment when the Government is once again open for business, whenever that may be.
The Western States Water Council, an organization comprised of representative from 18 states west of the Mississippi River, met with several U.S. Army Corps of Engineers officials Wednesday morning at the Lodge in Deadwood for an informal discussion on the Missouri River Water Storage Reallocation Study to kick start the Council’s 173rd council meetings, which continue through Friday.
Reno Red Cloud, director of the Oglala Sioux’s Mni Wiconi Water Reserve, was the first to speak, expressing bewilderment and concern at the Army Corps of Engineers’ understanding of both tribal and state water rights.
Red Cloud asked Army Corps of Engineers Northwest Division Program Director Dave Ponganis if the 1944 Flood Control Act, or “Pick-Sloan Act,” which established that the U.S. Army Corps of Engineers could sell surplus water from any reservoir they controlled at terms and prices they deem reasonable (“Provided,” the very same paragraph states, “that no contracts for such water shall adversely affect then existing lawful uses of that water.”), superseded the 1908 Winters Doctrine, which established that tribes are entitled to perpetual use of waters within the boundaries of their reservations, that rights to those waters were reserved to the tribes upon the establishment date of their reservations, and that that water cannot be appropriated in the event of “non use.”
Perhaps sensing he wasn’t going to receive a direct answer, Red Cloud swiftly shifted gears before Ponganis could respond, choosing to strongly state that he wanted to see the Corps of Engineers recognize and consider the interests and concerns of the tribes within the Missouri River Basin.
After a brief period of silence, Michelle Klose, assistant state engineer with the North Dakota Water Commission combined Red Cloud’s concerns, as a proxy representative for all tribes of the Missouri River Basin, with those of the states that the Missouri runs through, distilling them down to one sentence:
“The states and tribes all have rights along the river system for flows, and the Corps is making a different assumption here, it seems, than what we’ve understood in the past, since 1944,” she said, adding that there has been recognition within the Missouri River Basin that the tribes have reserved rights along the river system.
These were the first drops of a one-and-a-half hour deluge of heavily detailed questions, statements of concern, and clarifications of understanding of layered U.S. water rights legislation spanning from 1902 to the present by a roomful of state water representatives from the Western States Water Council, as well as Red Cloud and Dan Two Bulls, a natural resources representative on the Pine Ridge Reservation.
It could be considered ironic that this assembly of state and tribal water representatives made so many statements clarifying their individual, but not disparate, understandings of more than a century of stacked water rights laws, as the main motivation behind the Corps study is to clarify and potentially update the rules governing use of stored water in their reservoirs.
Early on in the unofficial discussion, Corps of Engineers Northwest Division Program Director Dave Ponganis pulled out his cell phone and read aloud his organization’s official statement on the study with the hope that it might provide -- you guessed it -- clarification of exactly why the Corps has been conducting these much-maligned studies in the first place.
“The Department of Army Corps of Engineers is examining the need to update and clarify through notice and comment rulemaking the policies governing the use of storage in its reservoir projects for domestic, municipal, and industrial water supply, pursuant to Section 6 of the Flood Control Act of 1944, and the Water Supply Act of 1958, this may include consideration of pricing methodologies for agreements entered into both statues and interpretation and definition of key statutory terms,” he read. “Rulemaking would afford an opportunity to clarify the Corps’ interpretation of Section 6 in the Water Supply Act, its policies implementing those statutes, and to consider input from all stakeholders. Any rulemaking that the Corps does pursue in this area will be developed through the administration as an open and deliberative process in compliance with the Administration Procedure Act, and will provide ample opportunity for public comment, and for consideration of all viewpoints expressed.”
Ponganis said the key point of that official Corps statement, to him, was that the Corps was “still in the process of examining the need to update and clarify.”
Many state officials (including Gov. Dennis Daugaard, Sens. Tim Johnson and John Thune, and Rep. Kristi Noem), tribal officials, natural resource attorneys and individuals in the Missouri River Basin believe the laws currently on the books are plenty clear, and to them those laws say the Corps’ proposal to hold what they deem surplus water collected in their Missouri River Basin reservoirs from the natural flows of the Missouri and charge for use of that water are prohibited. And every single Western States Water Councilperson that spoke up in the discussion seemed to agree.
J.D. Strong, executive director of the Oklahoma Water Resources Board said the biggest concerns that states have is that this Corps rulemaking, “which has the potential to really tread all over state and tribal sovereignty over water rights allocations,” is “happening behind closed doors.”
“We do not want to see this handled like the Clean Water Act jurisdiction rulemaking, where we’re going to get to look at it and comment on it at the same time the public gets the opportunity to look at it and comment on it,” Strong continued. “There are some really thorny sovereignty issues involved in this, especially this whole natural flows issue, that we really need to work out before this thing even goes to OMB (the U.S. Government’s Office of Management and Budget) for review, much less go out for public review.”
Strong asked for details on the process regarding the inclusion of states in the rulemaking process.
“This will be an administration effort, and we’re part of the administration,” Ponganis replied, inferring that the Corps representatives present at the discussion were from the Northwest Division of the organization, not the overarching governing body. Ponganis said that all he knew about the process was that Corps headquarters is currently engaging the administration on the issue and that they were “still looking at pricing, definitions, etc.
“I do know that we’re still in the very early stages of that,” he said. “I do not know if the Dept. of Army, or as it goes to OMB, their processes – I’m sure there’s processes there that allow for input into that.”
However, Ponganis said he wasn’t even sure if the administration wanted to pursue a rulemaking, and that it was premature for him to say anything about whether “that formulation of a draft would even contemplate other input.”
This response was more alarming than satisfying to those in the room not employed by the U.S. Corps of Engineers.
Cause for alarm escalated when Ponganis said that the natural flows of the Missouri River (the flow of water absent Corps controlled reservoirs) do not enter in to the Corps’ analysis at all. Under the organization’s current rules for adding water supply to a project, only “the impact of providing storage for water supply under existing project uses.”
Ponganis attempted to clarify the Corps’ interpretation of Congress’s request to them with an example, which seemed to only further confuse and frustrate many in attendance.
In his example the Corps is looking at potentially adding a hypothetical hydropower project use. “We look and say, ‘OK, by adding that project use, you the user come in and want to add a power plant …’ We say, ‘OK, lets look at that,’ and if you’re not impacting our operation for our project uses then that’s an allowable thing, and we enter into contracts, and we enter into how that’s done so that we do not impact our project operations. That is what Congress has asked us to look at,” Ponganis said.
Klose then asked if there’d been regulation changes since the 80s, when “correspondence in the Missouri River Basin” with the Corps stated that “as long as you were in those natural flows, as long as you weren’t benefiting from storage, there would be no cost from the reservoirs.”
This time Jim Fredericks, senior planning specialist with the Corps answered, saying that he felt that legal challenges to the Corps of Engineers outside the Missouri River Basin, which included concerns that the Corps was not managing their projects well, was the motivation behind the Missouri River Water Storage Reallocation Study. Adding that the Corps feels, in response, that they need to know “who’s out there and whether they’re taking water that’s going to affect the other authorized purposes.”
“There was recognition in Section 1 of the ’44 Act protecting the states’ rights and use of control, but there was also a recognition of those western states having a protection of beneficial use … of drinking water and water supply, and that would have a priority over navigation and those types of uses,” Klose responded. “There were certain things that were set up in that legislation. When you seem to focus on Section 6 of the ’58 Act, it seems like you’re missing pieces that were specific in Section 9 of the Flood Control Act that was specific to the Missouri River, as well as Section 1 that provided protection for western states.”
In his response, Fredericks stated that there was no discussion of natural flows in the ’44 and ’58 acts, but there was discussion of state rights, federal rights and an attempt to balance those, which he asserted the Corps does often.
Western States Water Council Executive Director Tony Willardson reminded all in attendance that the 1944 Flood Control Act was a merger of the authorities of the U.S. Army Corps of Engineers and the U.S. Bureau of Reclamation, and that Section 8 of the 1902 U.S. Reclamation Act specifically states that the Bureau of Reclamation (and the Corps of Engineers from 1944-on) may not “interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder” provided that the use is beneficial.
Willardson said he sometimes feels that including Section 8 of the 1902 U.S. Reclamation Act verbatim in the Corps’ Missouri River Water Storage Reallocation Study would solve problems for both the states and the Corps.
“I just want to recognize that I fully appreciate these different examples over the years,” Ponganis offered. “The terminology, the different watersheds in this country, the different water rights is (sic) a very thorny issue. I understand that, but that’s not a reason for us not to sit and talk about it, and it’s not a reason for us not to find ways forward that may require … clarification of definitions, or further guidance and direction from Congress.”
While Ponganis’ recognition of the complexity, difficulty and fragility inherent to the Corps’ task at hand and his subsequent offering that the Corps would work with states and tribes to move forward would have been a satisfactory discussion closer, Klose took the opportunity to address Fredericks’ statement that Corps water management litigation from other parts of the country had motived this march to revisit Corps project management practices. She said she thought the Corps was trying to apply solutions that worked in those situations in different areas of the country with different water issues and different historical water rights laws to the Missouri River Basin, with its prior appropriation.
“There are uniquenesses (sic) in this basin that the concept you’re moving forward are very, very contrary towards,” she said. “… the dams (in this area) were constructed to basically impact every single Indian reservation along the Missouri River Basin, and you have flooded basically those entire reservation areas, and now with this new philosophy … you’re saying the tribes are taking stored water, and somehow when you constructed the dams you took away their reserved rights, or you somehow acquired all the rights from the states and tribes where reservoirs are, and now there has to be contracts in place to take withdrawals from the storage. That is so contrary to what we’re trying to convey as a concept of natural flow to allow recognition that there was flow that the tribes had access to and that they had reserved rights to – it’s trying to be a solution to allow you to still administer your policies the way that they’re written, but to provide a recognition that I don’t think congress ever intended – I guess it was never understood in this basin that you were acquiring 100 percent of those flows, 100 percent of the river that’s going into those reservoirs.”
Ponganis responded that the Corps does not feel that it owns all of those water rights and that they do indeed recognize the rights of the tribes in the Missouri River Basin.
“I don’t want to leave the impression that … we are not recognizing the tribes’ water rights issues,” he said. “And I don’t want to leave the impression … that we have implied any rights over any of the water in those projects. That is not how we’re dealing with the implementation of those things.”
The informal discussion continued in this back and fourth manner with gusto, but Western States Water Council Chairman Phil Ward succinctly conveyed the overarching message of the collective council and concerned discussion attendees to Ponganis and the rest of the U.S. Army Corps of Engineers representatives some 10 minutes before the exchange finally ran out of steam. And as phenomenally important as the legitimate concerns of his fellow councilpeople, and their simultaneously patently true, yet murky legal supporting arguments are, it’s likely that Ward’s statement is the one that will stick with Army Corps of Engineers brass at this stage of their reorganization project.
“I just think it’s important, Dave, that as you work through this process that you convey to folks up the chain that the western states are engaged here — and it’s not just the Missouri River States, but the entire western states portfolio engaged here, and we’re going to stay engaged on this until we reach an accommodation that we feel like we can live with,” Ward said. “I appreciate, as chairman of the council, you being here — you all willing to come and sit with us here during this forum. We would hope you would convey on up the chain how much the western states are engaged and committed to seeing this through.”