North Dakota officials Tuesday told the U.S. Army Corps of Engineers a national, one-size-fits-all policy to reallocate water from the Missouri River system and charge for its storage space is illogical and illegal.
Lt. Governor Drew Wrigley called the corps’ plan “fundamentally flawed” and “absurd.” He said the states, not the corps, have the right to manage water in the river and in North Dakota’s two reservoirs along the river.
The corps is in the midst of reviewing and potentially changing its policies for allocating water in the reservoirs up and down the basin, and to charge for storage space for that water.
The corps held meetings last week in Iowa, Nebraska and Missouri and Monday in South Dakota. A meeting is scheduled for Glasgow, Mont. today.
Until now, the corps has been managing the river under two federal acts — the Flood Control Act of 1944 and Water Supply Act of 1958.
Larry Janis of the corps said the plan would redefine the current system in two ways. First, it would reallocate water that would be more beneficial for municipal and industrial uses provided it doesn’t conflict with other authorized purposes under the acts.
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Secondly, Janis said a surplus could be declared if some of those purposes haven’t been fully developed.
The corps is seeking to establish a system by which it would charge states for the amount of space it would take to store the surplus water.
Janis said the Missouri River Basin is one of the few corps-managed water systems that does not charge for storage.
The charges wouldn’t take effect unless the corps passes a rule to that effect, which could take up to 18 months.
That’s the crux of the issue, in the opinion of many state officials. Todd Sando, state engineer for the North Dakota Water Commission, said the corps’ plan is to develop a policy consistent with water projects it manages in the eastern U.S.
“It is ludicrous to have a single policy that attempts to manage the longest river in the United States with the same policy for tributary or ephemeral streams, and to address states with western water law the same as those with riparian law,” he said.
Tom Trenbeath, chief deputy attorney general for North Dakota, said the land along the river was held in trust before statehood and the U.S. Supreme Court has consistently upheld states’ rights when it comes to water issues.
He said water management laws have historically been treated differently between Eastern and Western states.
Trenbeath said he finds it “perplexing” that the corps is conducting a reallocation study when an original plan was never formalized.
Sen. John Hoeven, R-N.D., in a statement said he will recommend the state go to court if the corps does not withdraw its plan.
“The heart of this reallocation issue is North Dakota’s right to the natural flows of the Missouri River and the refusal of the corps through (its) reallocation process to recognize natural flows,” he said.
“The state of North Dakota has the authority to allocate the natural flows of the Missouri River for beneficial uses.”
Hoeven said that includes both the 92 miles of free-flowing stretches in the state and the 262 miles of reservoir boundaries created by the Garrison Dam.
“The corps, with this proposed reallocation policy, is attempting to usurp and overwrite the states’ right to manage the water within its borders, ” Hoeven said.
A representative for Sen. Kent Conrad, D-N.D., said Conrad is working on his own draft of a plan to manage river water which is near completion.
Rick Collin, testifying on behalf of Rep. Rick Berg, R-N.D., said restricting access to the natural flows of Missouri River water and charging for storing that water contradicts legal and historical precedent in place since the dams were built.
“The fact remains that water flowing through the Missouri River through North Dakota continues to belong to our states and its citizens,” Berg said.
“What’s more ... upstream states like North Dakota will be forced to pay for the entire cost of this plan while downstream states do not is a further example of why the corps’ current approach is flawed,” he added.
There are six dams along the Missouri River: Fort Peck in Montana, Garrison Dam in North Dakota, and Oahe, Big Bend, Fort Randall and Gavins Point dams in South Dakota.
Reports on the South Dakota dams and Fort Peck have been public for some time but the report for Garrison was released last month.
The corps is taking comments until Sept. 10 and both Wrigley and Berg requested extensions on the proposal for North Dakota.
Reach reporter Brian Gehring 250-8254 or email@example.com.