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Ms. HEITKAMP. I say thank you to my colleagues from North Dakota and South Dakota. Mr. President, this is not a new issue. This is an issue--even back in the 1990s--I dealt with as the State's attorney general. Why do I mention that? I mention it because we were able to persuade the corps at the time that the intake pipe they were attempting to charge for surplus water was actually in the original river bed. I--just tongue-in-cheek--suggested I would charge them for putting their water on top of our water, and maybe they should pay a fee to us for the storage we were going to allow them.
In all seriousness, this is not an issue that is going to go away. If any of our colleagues think this is an issue where we can just let it go and ride it out, this is an issue that has percolated for a lot of years. It has culminated right now to this effort to be proactive in this body to prevent litigation, prevent excess expense, and prevent a deterioration of a relationship that is essential to making sure we have flood protection and all of the other good that came out of the Flood Control Act.
So the time is now to take an immediate step to prevent this issue from going any further and to address the concerns that upstream States have.
I want to spend just a few moments talking about this from a legal perspective and what could happen if, in fact, the Federal Government engaged in litigation with the States.
We have heard today from both South Dakota and North Dakota Senators. I am reasonably sure Montana would not allow this precedent to stand without some pushback and an absolute commitment from a bipartisan standpoint from all the upstream States for a pushback.
Let's talk about why there are legal problems with the corps approach. Charging fees for surplus waters, I believe, would violate a State's right to the water that naturally flows through the boundaries as historically recognized by the Federal Government and as recognized by the 10th Amendment.
Charging fees would violate statutory law. Section 1 of the 1944 Flood Control Act provides protection for water resources in Western States. We have a common law water rights argument, a historic argument, and we have a statutory argument.
I think charging fees would reverse decades of corps policy on surplus water and create a precedent which should not be established, not only in the upper Missouri basin but should not be established anyplace in this country. That is why this is an issue that is not just about the Dakotas, it is not just about Montana and the upstream States, it is an issue that every one of our colleagues has an interest in reviewing. If they can do it in this case, why can't they do it in any other reservoir.
Charging fees would penalize Montana, North Dakota, and South Dakota by charging for water that is freely available in the absence of the corps reservoir. If there were no reservoir, there would be no issue. In fact, if they tried to charge, most of our colleagues would find that absolutely atrocious. This is in the face of what we know we have sacrificed for flood control in that basin.
I want to mention the unique interest that the Mandan, Hidatsa, Arikara Nation, along with the Standing Rock Nation have and what they have sacrificed for flood control, what they have sacrificed in terms of loss of their land, division of their reservation boundaries, and division of their property. Now, the corps is saying: Yes, we took your land. Yes, we disrupted your natural boundaries and your natural way of life, and now we are going to charge you for the water that sits on your historic homeland.
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Ms. HEITKAMP. Mr. President, my colleagues from North and South Dakota and I come from practical States. We come from States where we try to anticipate problems and we solve problems before they turn into big, expensive pieces of litigation, and that is what that amendment does. This amendment addresses, in a proactive way, a policy we know will not be put to bed until this body speaks. Let's do it now. Let's do it kind of in the way we do it in our States. Let's be proactive. Let's make sure we aren't wasting money and wasting relationships on litigation and that we are moving forward to manage the Upper Basin as best we can and that we do what is right by the people of our State and the people in our tribal governments and our Native American neighbors.
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