Protecting States’ Rights to Water

For many South Dakotans, the Missouri River is a constant in our lives. We have driven past it countless times, fished its waters and boated on it with our friends and families. It has also historically been a major water source for state and municipal projects. However, a U.S. Army Corps’ of Engineers proposed rule, estimated to be finalized as early as this fall, would limit states’ rights to the natural flow of water through river systems.

The proposed rule, published during the previous administration, seeks to define the term “surplus water” in the Flood Control Act of 1944. In formulating the proposed rule, the Army Corps failed to take into account natural flows of the river system when defining surplus water. It was the intent of Congress to recognize and reaffirm the constitutionally protected rights of states to the natural flow of water through river systems like the Missouri. The proposed rule is an attack on states’ rights and states’ ability to access these natural flows.

Earlier this year, South Dakota’s Game, Fish and Parks Department requested access to a small quantity of water from the Missouri River to construct a parking lot on government property adjacent to a reservoir. The Army Corps denied the request on the basis that the “surplus water” rule hadn’t been finalized. The Army Corps is blocking states from legitimate usage of the water.

As chairman of the Environment and Public Works (EPW) Subcommittee on Superfund, Waste Management and Regulatory Oversight, I have held numerous hearings to review the Army Corps’ management of the Missouri River. We recently held a hearing to focus on the problems with the “surplus water” rule. Secretary Steven Pirner of the South Dakota Department of Environment and Natural Resources testified at the hearing. Of the proposed rule, he said, “this new definition of surplus water creates a monumental change to the law and steals South Dakota’s rights to natural flows that, by tradition and law, are under the jurisdiction of the states.”

In South Dakota, we live with a permanent flood as thousands of acres of productive farmland have been inundated to create the mainstem dams of the Missouri River. Recently, I was joined in a letter to President Trump by Governor Daugaard, Senator Thune and Representative Noem in which we stated that 500,000 acres of our most fertile river bottomlands were permanently flooded as the reservoirs filled following construction of these dams. Our citizens and tribal members were forced from their homes and communities.

We don’t doubt the benefits of multi-use Army Corps projects, but they need to be taken into the proper historical context. In taking such an expansive view of what constitutes surplus water, and thus what is subject to federal control, the Army Corps clearly does not recognize the constitutionally protected rights of the states to the natural flows of the river system.   

Rather, the Army Corps is attempting to produce a system in which legitimate municipal and industrial projects cannot gain access to the water passing through the states by refusing to grant easements to gain access to these water resources.

I have been working directly with EPW Chairman John Barrasso (R-Wyo.) to secure a verbal commitment toward addressing the “surplus water” rule through legislative action. We’ll also continue working to make sure the Army Corps modifies its rulemaking process to consider the roles and rights of states.

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