U.S. Army Corps of Engineers proposes to charge for the use of Missouri River water

The U.S. Army Corps of Engineers (USACE) proposes to charge for the use of Missouri River water. As background, the federal 1944 Flood Control Act, Public Law 78-534, created the Pick-Sloan Missouri River Basin Program. This resulted in the construction of six dams and reservoirs on the Missouri River. The purpose of the Pick-Sloan Program was flood control, navigation, municipal and industrial water supply, and hydropower for the lower basin states, and irrigation, water supply, hydropower, flood control, wildlife habitat, and recreational opportunities for the upstream states.

The U.S. Army Corps of Engineers recently announced its intention to prepare surplus water reports and environmental assessments for each of those six Missouri River dams and on December 16, 2010 released the first report for the Lake Sakakawea and Garrison Dam in North Dakota. A look at this report gives a clue to the contents of the other reports that will be issued. Importantly, the Garrison Dam/Lake Sakakawea Draft Surplus Water Report and Environmental Assessment calls for levying fees on users to recover the costs of building the Garrison Dam in North Dakota and storing water for the region’s population. The report proposes temporarily making up to 257,000 acre-feet of storage (100,000 acre-feet of yield) per year within the Garrison Dam / Lake Sakakawea Project, N.D. available for municipal and industrial water supply use. Public comment on this first report has already closed. The impact on downstream states will be that the Corps can enter into agreements to sell the water in the Missouri River. This will likely have an impact on many cities and other water users who have not paid anything for the water that is being taken from the Missouri.

In case you are wondering if the Corps is just making this fee up, the applicable law states:

[T]he Secretary of War is authorized to make surplus water agreements with States, municipalities, private concerns, or individuals at such prices and on such terms as he may deem reasonable for domestic and industrial uses for surplus water that may be available at any reservoir under the control of the War Department . . .

Section 6, 1944 flood Control Act. The question, of course, is what constitutes “surplus water.” Stakeholders are already beginning to position themselves for different or favored treatment. Upstream states point to the burden imposed on those states with the loss of land and tax base used for the dam’s flood control area. Tribes are also likely to note the loss of burial grounds. Downstream states are likely to argue that they should not have to pay for water which has passed through or along their borders for millenia. Given that it took ten years to produce the first report, a resolution of this issue may not come for years.

The report can be found here: http://www.nwo.usace.army.mil/html/pd-p/Sakakawea_SWR_Public_Draft.pdf



Much of the information set out in this entry was taken from the South Dakota Legislature’s Concurrent Resolution No. 1008.

About James Pray

Attorney with BrownWinick Law Firm in Des Moines, Iowa.
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