The States' Water Rights Act, an amendment sponsored by Senators John Hoeven (R-N.D.) and John Thune (R-S.D.), and cosponsored by Senators Heidi Heitkamp (D-N.D.), Tim Johnson (D-S.D.) and Max Baucus (D-Mont.), today passed in the U.S. Senate. The measure blocks the U.S. Army Corps of Engineers from charging residents and businesses a surplus water fee for access to Missouri River reservoirs. The legislation was adopted into the Water Resources Development Act (WRDA), which passed in the Senate today.
Since 2010, the Corps has restricted access to the Missouri River reservoirs and has proposed charging an unprecedented fee for so-called surplus water taken from the major reservoirs in the upper basin. Upper basin states relinquished prime lands to create dams and reservoirs from Fort Peck in Montana, through Garrison Dam in North Dakota, to Gavins Point in South Dakota. The states never ceded the right to use Missouri River water for municipal and industrial water supplies, and the Corps has not charged a fee in more than 60 years.
The States' Water Rights Act changes statute to prevent the Corps from charging fees for "surplus water." The Corps actions would have been in direct violation of a state's right to the waters that naturally flow through its boundaries as recognized by the federal government. Further, charging fees would have reversed decades of Corps policy on surplus water and violated provisions of the 1944 Flood Control Act, which provides protection for water resources in western states. The affected states have promised to sue the Corps if fees are charged.
"North Dakota has fought long and hard to preserve the integrity of the Missouri River and the rights of our people to use it to support their homes and their livelihoods," Hoeven said. "We cannot allow the federal government to charge us for water that historically, legally and ethically belongs to the citizens and tribes of North Dakota or any other Missouri River state that sacrificed valuable land and resources to the Pick--Sloan Missouri Basin Program."
"South Dakotans should not be charged for water that is legally and historically theirs," said Thune. "The Corps' surplus water fee proposal ignores the history and precedent of the Missouri River states' water rights, and our common-sense legislation prevents a massive power grab by the Corps and ensures that the federal government honors the long-standing agreements between these Missouri River states and the Corps of Engineers."
"It is completely inappropriate for the federal government to charge states and Tribal nations for water that naturally flows through their land," said Heitkamp. "I am pleased that a bipartisan group of Senators came together in a proactive way to establish that the Corps of Engineers cannot tax North Dakotans for using their own water."
"The tribes and communities in South Dakota that depend on Missouri River water for safe, reliable drinking water should not face additional charges for the water coming from the reservoirs," said Johnson. "The steps by the Corps of Engineers to establish surplus water fees are ill-suited to the upper Missouri River reservoirs and run counter to the historical precedent of these projects. This amendment provides a good resolution to the legitimate concerns raised by our states and tribes."