[Senate Hearing 114-358]
[From the U.S. Government Publishing Office]





                                                        S. Hrg. 114-358

 FIVE YEARS FROM THE FLOOD: OVERSIGHT OF THE ARMY CORPS' MANAGEMENT OF 
           THE MISSOURI RIVER AND SUGGESTIONS FOR IMPROVEMENT

=======================================================================

                             FIELD HEARING

                               before the

                   SUBCOMMITTEE ON SUPERFUND, WASTE 
                  MANAGEMENT, AND REGULATORY OVERSIGHT

                                 of the

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                    ONE HUNDRED FOURTEENTH CONGRESS

                             SECOND SESSION

                               __________

                  MARCH 31, 2016--NORTH SIOUX CITY, SD

                               __________

  Printed for the use of the Committee on Environment and Public Works


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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                    ONE HUNDRED FOURTEENTH CONGRESS
                             SECOND SESSION

                  JAMES M. INHOFE, Oklahoma, Chairman
DAVID VITTER, Louisiana              BARBARA BOXER, California
JOHN BARRASSO, Wyoming               THOMAS R. CARPER, Delaware
SHELLEY MOORE CAPITO, West Virginia  BENJAMIN L. CARDIN, Maryland
MIKE CRAPO, Idaho                    BERNARD SANDERS, Vermont
JOHN BOOZMAN, Arkansas               SHELDON WHITEHOUSE, Rhode Island
JEFF SESSIONS, Alabama               JEFF MERKLEY, Oregon
ROGER WICKER, Mississippi            KIRSTEN GILLIBRAND, New York
DEB FISCHER, Nebraska                CORY A. BOOKER, New Jersey
MIKE ROUNDS, South Dakota            EDWARD J. MARKEY, Massachusetts
DAN SULLIVAN, Alaska

                 Ryan Jackson, Majority Staff Director
               Bettina Poirier, Democratic Staff Director
                              ----------                              

             Subcommittee on Superfund, Waste Management, 
                        and Regulatory Oversight

                  MIKE ROUNDS, South Dakota, Chairman
DAVID VITTER, Louisiana              EDWARD J. MARKEY, Massachusetts
MIKE CRAPO, Idaho                    THOMAS R. CARPER, Delaware
JOHN BOOZMAN, Arkansas               JEFF MERKLEY, Oregon
DAN SULLIVAN, Alaska                 CORY A. BOOKER, New Jersey
JAMES M. INHOFE, Oklahoma (ex        BARBARA BOXER, California (ex 
    officio)                             officio)
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                            C O N T E N T S

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                                                                   Page

                             MARCH 31, 2016
                           OPENING STATEMENT

Rounds, Hon. Mike, U.S. Senator from the State of South Dakota...     1

                               WITNESSES

Ponganis, David, Programs Director, Northwestern Division, U.S. 
  Army Corps of Engineers........................................     3
    Responses to additional questions from Senator Markey........     6
Pirner, Steve, Secretary, South Dakota Environment and Natural 
  Resources......................................................    14
Frazier, Harold C., Chairman, Cheyenne River Sioux Tribe.........    15
Dooley, Jeff, Manager, Dakota Dunes Community Improvement Project    17
Lepisto, Paul, Regional Conservation Coordinator, Izaak Walton 
  League of America..............................................    18
    Responses to additional questions from Senator Markey........    21

 
 FIVE YEARS FROM THE FLOOD: OVERSIGHT OF THE ARMY CORPS' MANAGEMENT OF 
           THE MISSOURI RIVER AND SUGGESTIONS FOR IMPROVEMENT

                              ----------                              


                        THURSDAY, MARCH 31, 2016

                               U.S. Senate,
         Committee on Environment and Public Works,
               Subcommittee on Superfund, Waste Management,
                                  and Regulatory Oversight,
                                              North Sioux City, SD.
    The subcommittee met, pursuant to notice, at 1:05 p.m. in 
the North Sioux City Council Chambers at City Hall, Hon. Mike 
Rounds (chairman of the subcommittee) presiding.
    Present: Senator Rounds.

            OPENING STATEMENT OF HON. MIKE ROUNDS, 
          U.S. SENATOR FROM THE STATE OF SOUTH DAKOTA

    Senator Rounds. Good afternoon. The Environment and Public 
Works Subcommittee on Superfund, Waste Management, and 
Regulatory Oversight is meeting today to conduct a field 
hearing entitled ``Five Years from the Flood: Oversight of the 
Army Corps' Management of the Missouri River and Suggestions 
for Improvement.'' I would like to thank our witnesses for 
being with us today, and I look forward to hearing your 
testimony.
    The United States Army Corps of Engineers is responsible 
for managing the Missouri River to meet the needs of both the 
Corps and the surrounding communities. In order for this to be 
successful, management of the river should always be done with 
extensive communication among stakeholders and a well founded 
understanding of the needs of State and local governments, 
agriculture, recreation and economic interests, all of which 
depend on the proper management of the Missouri River.
    In 2011 record setting rains, unusually moist soil 
conditions, and melting snow from a near-record setting 
snowfall in the Rocky Mountains and Northern Plains States 
combined to form a perfect storm that led to catastrophic 
flooding all along the Missouri River basin.
    From May through August extensive flooding caused major 
damage on residences, infrastructure, businesses and 
agriculture in the basin States of South Dakota, North Dakota, 
Iowa, Nebraska, Missouri, Montana and Kansas.
    The flood caused more than $2 billion in damages and 
resulted in five fatalities. Four thousand homes were flooded. 
Roads were destroyed, and agricultural land was ruined. Entire 
communities were under attack from the 2011 flood, largely left 
to fend for themselves. The Federal Emergency Management 
Administration, or FEMA, issued disaster declarations in each 
State in this region.
    In our State capital of Pierre and neighboring Fort Pierre, 
residents were given less than 1 week to prepare for what would 
be one of the worst floods in 60 years. After the flood, the 
city's streets, sewage system, storm sewers, parks and 
electrical systems suffered unprecedented damage that cost 
millions of dollars to repair. The recovery took months. 
Citizens are still paying for the damages.
    When the floodwaters had receded and life began to return 
to normal, the next step was to make sure that any and all 
measures were taken to make certain this would not happen 
again.
    In 2014 Government Accountability Office reported--report 
concluded that improving existing hydrologic data and 
collecting new soil moisture, plains snowpack, and 
archeological flood and drought data could assist the Corps in 
making future release decisions and in improving long-term 
forecasting models. Accordingly a 2014 Water Resources Reform 
bill, which is commonly referred to as WRRDA, authorized the 
Army Corps to coordinate with various government agencies to 
create a soil moisture and snowpack monitoring network in the 
Upper Missouri River Basin.
    Since the flood we have also been confronted with several 
other issues involving the Army Corps' management of the 
Missouri River. In 2008 the Army Corps issued Real Estate 
Guidance Policy Letter Number 26. This directive required 
municipal and industrial water users from the Missouri River 
Mainstem Reservoirs to acquire a water storage contract from 
the Corps before the Corps would issue an access easement for a 
pump site. Since the issuance of this guidance policy the Corps 
has been seemingly unable or unwilling to issue access 
easements to South Dakotans seeking to utilize water from the 
Missouri.
    Additionally, the Corps has been undertaking surplus water 
studies and engaging in a rulemaking effort to standardize how 
the Corps will charge citizens for surplus water storage. The 
2014 WRRDA bill prohibited the Corps from charging a fee for 
surplus water for 10 years. This prohibition should be 
permanent. South Dakotans should not be required to pay a fee 
of any kind for using water from the Missouri River.
    Proper management of the Missouri River is vital to life in 
the Midwest. We depend on the Missouri River not only for 
recreation, but for agriculture and irrigation, shipping and 
hydroelectric power. The Missouri River is vital to our 
livelihood and to our economy.
    It has now been nearly 5 years since the flood. Today we 
will be hearing testimony from both the U.S. Army Corps of 
Engineers and State and local stakeholders regarding the Corps' 
management of the Missouri River. We will be exploring what the 
Corps is doing right, what can be improved upon, and how 
Congress can help get the Corps and the communities the 
resources they need to manage this vital resource. We will also 
offer suggestions on how the Corps' management can be improved 
in order to prevent future flooding and better meet the needs 
of both the surrounding communities and the Corps.
    Each witness will have approximately 5 minutes to present 
their testimony, and I will then follow up with questions to 
the witnesses.
    I'd like to again thank our witnesses for being with us 
today, and I look forward to hearing all of their testimonies.
    This hearing has two panels. We'll begin with our first 
panel today, and Mr. Dave Ponganis is the Director of Programs, 
the Northwestern Division of the U.S. Army Corps of Engineers. 
Mr. Ponganis, whenever you're ready you may begin your 5 
minutes of testimony. Once again, we appreciate your being here 
today.

 STATEMENT OF DAVID PONGANIS, PROGRAMS DIRECTOR, NORTHWESTERN 
             DIVISION, U.S. ARMY CORPS OF ENGINEERS

    Mr. Ponganis. Thank you, Chairman Rounds. I am Dave 
Ponganis, Programs Director of Northwestern Division of the 
U.S. Army Corps of Engineers. I am pleased to be here today to 
discuss the efforts of the Corps in the Missouri River basin to 
reduce the risk of flood damage during and after the Missouri 
River flood of 2011.
    The Missouri River Mainstem Reservoir System is comprised 
of six multipurpose dams and reservoirs, which include 
hydroelectric power plants and recreational areas; levees 
downstream along the mainstem of the Missouri River and a 735-
mile navigation channel extending from Sioux City, Iowa, to the 
mouth near St. Louis, Missouri. The six dams on the mainstem of 
the Missouri River form the largest system of reservoirs in the 
United States.
    The Corps is charged with responsibly managing this complex 
and extensive system for eight congressionally authorized 
purposes: Flood control, navigation, hydropower, municipal and 
industrial water supply, water quality control, recreation, 
irrigation, and fish and wildlife. The Missouri River Master 
Manual is the Corps' manual that guides the operating regime of 
these reservoirs under a wide range of water conditions 
consistent with those authorized purposes. In addition, 
operation of the system must also comply with other applicable 
Federal statutory and regulatory requirements, including the 
Endangered Species Act.
    Cycles of flooding and drought have always been a major 
part of the Missouri River Basin hydrology. The 2011 flood was 
the result of unprecedented hydrologic events. Following a wet 
fall of 2010, heavy snow accumulated on the upper plains of 
Montana, Wyoming, North and South Dakota. Mountain snowpack was 
just slightly above average most of the winter but surged late 
in the season and peaked much above average in early May.
    But it was the unprecedented record rainfall in May and 
June over much of Montana, North Dakota and South Dakota that, 
when combined with the runoff from the plains and mountain 
snowpack, resulted in the flood event of 2011. Runoff above 
Sioux City, Iowa, totaled 62 million acre-feet compared to a 
normal 25 million acre-feet, more than double the average and 
the highest on record, requiring record releases from all six 
mainstem dams. Releases from Gavins Point Dam were maintained 
between 150,000 cubic feet per second and 160,000 from mid-June 
through mid-August, more than double the previous record 
release of 70,000 cubic feet per second.
    While much damage occurred in the basin during this flood, 
the Missouri River Mainstem Reservoir System, including the 
Federal and non-Federal levees, along with the response actions 
taken by Federal, State, and local agencies, and private 
citizens both before and during the flood, provided substantial 
benefits. Without them the damages and safety risks would have 
been much greater. Important repairs have been completed since 
then. There are still a few to be done that we're working on 
right now.
    During the Missouri River flood of 2011, the Corps expended 
approximately $70 million on fortifying existing levees, 
building temporary levees, monitoring dam and levee safety and 
other activities, such as providing flood flight supplies to 
States and tribes, within the Corps' authorities under Public 
Law 84-99. These actions by the Omaha and Kansas City Districts 
of the Corps were highly effective in reducing flood damages 
along the mainstem of the Missouri River.
    Following the flood the Corps initiated a variety of post-
flood actions. These include both internal and independent 
external technical reviews of the water management operation, 
an after action review of the flood flight response, and the 
concentrated effort to assess and repair key features of the 
infrastructure that the Corps owns and operates on the 
Missouri, as well as eligible non-Federal levees under the 
Corps' Public Law 84-99 program. In addition, we also 
participated in a review of our reservoir operations by the 
Government Accountability Office.
    The Corps set up an external technical review panel to 
assess the Corps' operation of the mainstem reservoir system 
prior to, during, and after the 2011 flood event for the 
purposes of gaining lessons learned and recommendations to 
improve future operations. The independent review panel 
recommended infrastructure investment to ensure that our flood 
release spillways and tunnels are ready for service and our 
levees are in good condition. Consistent with this 
recommendation, the Corps has spent over $580 million since 
2011 to repair Federal and non-Federal infrastructure on the 
Missouri River including the dams, levees, and channel 
structures. The bulk of these repairs were completed prior to 
the 2012 run-off season. However, some repairs, particularly 
for the large items such as spillway structures and gates are 
still underway.
    The independent panel also recommended that the Corps 
conduct several studies on the operation of the Missouri River 
Mainstem System. The 2011 flood was a historic event that 
provided a new data point to incorporate into the tools used to 
predict, monitor, and manage the system. The Corps has updated 
numerous internal technical reports and has partnered with NOAA 
on three additional reports. These include an attribution study 
of the 2011 flood, an evaluation of the feasibility of managing 
the reservoir system for anticipated wet and dry cycles, and a 
study that is looking at changes of the basin climatology and 
hydrology since the 1970s.
    Post-2011 flood, the Corps has worked with the National 
Weather Service, the Natural Resource Conservation Service, and 
States to share existing data and have developed a proposal for 
comprehensive a snow plains snowpack and soil moisture 
monitoring network for the upper plains.
    Since 2011 the Corps has also greatly enhanced its 
coordination with tribes, State, and local governments during 
periods of heightened flood risk including monthly basin calls 
leading up to and during the peak run-off seasons.
    Knowing my time has run out, Senator----
    Senator Rounds. Take another minute, and try to finish up.
    Mr. Ponganis. OK. In September 2014 the GAO issued a report 
on its review of the Corps' water release decisions and 
communication during the 2011 flood and the 2012 drought. As 
part of this review GAO worked with the National Academy of 
Sciences and convened a meeting of nine experts to discuss the 
Corps' data, forecasts, and release decisions. These experts 
concluded that the Corps took appropriate action during the 
2011 flood and the 2012 drought given the circumstances but 
recommended that the Corps evaluate the pros and cons of 
incorporating new forecasting techniques into its management of 
the Missouri River system. That evaluation is ongoing and is 
expected to be completed later this summer.
    We are hopeful that the improvements in the run-off 
forecasting and sharing of critical data will provide even 
greater lead time for flood events resulting from high plains 
and mountain snowpack, although they will have little impact on 
the more typical rainfall driven flooding which is most common 
in the lower basin. The Corps is also communicating more 
frequently and more broadly with Federal, State, county, and 
local officials, tribes, emergency management officials, 
independent experts and the media to discuss conditions on the 
ground and current Corps reservoir release plans and forecasts.
    This concludes my testimony. Thank you for allowing me to 
testify about the flooding in 2011 and future operation of the 
Missouri River Mainstem System. I will be happy to answer any 
questions you may have.
    [The responses of Mr. Ponganis to questions for the record 
follow:]


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Senator Rounds. Thank you, Mr. Ponganis.
    Mr. Ponganis, along with all of the other individuals who 
will be testifying today, has provided us with a written 
testimony, and all of the written testimony will be entered in 
its entirety into the record of this meeting.
    [The referenced testimonies were not received at time of 
print.]
    Senator Rounds. Mr. Ponganis, section 4003 of the 2014 
WRRDA Bill authorized the Corps to coordinate with various 
Government agencies to create a soil moisture and snowpack 
monitoring network in the Upper Missouri River basin and 
maintain high elevation snowpack monitoring sites. However, in 
a 2015 report the Government Accountability Office found that 
Federal agencies have made limited progress implementing the 
monitoring program. What is the status of the soil moisture and 
snowpack monitoring program? What can Congress do to better 
facilitate the implementation of its program, and is the Corps 
willing to take the role of lead agency to implement this 
program?
    Mr. Ponganis. Senator, we have gotten implementing guidance 
of that WRRDA section. What that guidance indicates to us is 
that one, we need to seek additional appropriations 
specifically. In other words, it was in addition to our normal 
operations.
    In addition, as part of that we would need to ensure that 
once we help and work with the other forecasting agencies, 
NOAA, NRCS, USGS, and what kind of additional monitoring is 
necessary, where, and once those additional monitoring sites 
would be installed, that those agencies would be responsible 
for taking over the maintenance and the monitoring activities 
which we would need to enter. So we are starting that 
coordination with them on that, and we're hopeful that we'll 
get future appropriations to do so.
    Senator Rounds. So in 2014 the bill authorized the Corps to 
coordinate with the various other Government agencies. We're 
now in 2016.
    Mr. Ponganis. Yes, sir.
    Senator Rounds. You're now suggesting that you need 
additional funding from Congress. Has that request been made at 
all?
    Mr. Ponganis. So, Senator, the process that we have is we 
get implementation guidance from our Secretary of the Army's 
office and through our headquarters' office, we got of--any 
sections in WRRDA, we got that this fall. So it was too late to 
enter into anything for the President's budget process for this 
current--proposed for fiscal year 2017. Now that we have that, 
we'll engage with the Administration in looking into the 
proposed budgets for the future years, sir.
    Senator Rounds. You know, one of the reasons why people up 
in this part of the country get frustrated is because they see 
that things don't move very fast when it comes to the Federal 
Government. You've got folks out here in the audience right now 
that lived through a flood in 2011. It was at a time--and let 
me just background this just a little bit. There were folks up 
and down this Missouri River at that time that understood that 
we had full reservoirs, that we had snowpack in the mountains. 
It didn't take a scientist to see that. They knew that we had a 
lot more snow in the upper Midwest. Every report out that you 
could find from commercial sources would have indicated that.
    As my memory serves me correct, during March, I believe it 
was on March 3rd, it was one of those kind of days that you 
remember. On March 3rd it seems to me that one of the Corps' 
spokespeople said in an article that was related in the Omaha 
Herald on that day, that we were going to be just fine that 
year with regard to maintaining the water levels within the 
banks, unless it rained. And I don't believe they quite said 
``unless it rained,'' but basically unless we had additional 
moisture, and so forth. That was on March 3rd.
    My first thought after looking at that was, is that it's a 
heck of a way to run a major system right through the middle of 
the United States, that we would be just fine unless it rained.
    And second of all, I live along the Missouri River. I live 
on the Fort Pierre side of the Missouri just across from the 
capital city of Pierre. We had moved into our home after I left 
working as Governor for a period of 8 years. We moved into a 
new home along the Missouri River, and we could see the levels 
below the Oahe Dam and the tailwaters of Lake Sharpe. We had 
record low releases the first week in May, record low releases. 
I know because we were actually working on the shoreline behind 
our home. Three weeks later we moved out of our home. People in 
our entire area of 80-some homes moved out. We did so because 
we had basically just about a week's notice that something bad 
was going to happen.
    I can understand why folks up here don't refer to it as the 
2011 flood. They refer to it as the Corps flood of 2011. In 
part because they think that there was not enough information 
provided by the Corps in advance and that the Corps was 
unprepared to deal with this amount of water coming through 
which was very large amounts. But it seems like after operating 
this particular system for more than 60 years, that there would 
be an adequate way to determine whether or not the amounts of 
water coming in was more than what we could handle in the 
mainstem dams and whether or not we might have more than a 
week's notice below every one of these major facilities with 
regard to huge releases that all of a sudden had to happen.
    We moved out of our home, and I said we were out for 2 
months. My wife reminds me, no, it was 63 days. There were a 
lot of folks out here that were gone, that were out for a lot 
longer than that, and there was billions of dollars in damage 
that was done, some of which, I think a lot of people think 
could have been handled more appropriately if we could have 
started making releases sooner. It doesn't mean that we could 
have stopped all the damage that was done, but most certainly 
it could have been eliminated more if we wouldn't have had 
record low releases for a month before we had record high 
releases. You could have averaged it out a little bit. But you 
can't do that unless you've got adequate information.
    We understand that if we had not provided the resources to 
get it, or if we had not provided the directions, as Congress, 
to the Corps of Engineers, to maintain or to get adequate 
information, but the reason why I lay out this is because now, 
after we've had a direction from Congress that you get in gear 
with other agencies to actually put together the necessary 
information to prevent it in the future, 2 years later you're 
saying that you can't get it done until we get an appropriation 
from Congress, and you didn't think enough about it to get it 
done in this appropriations bill. I don't understand. And so if 
I'm a little upset, I think there's a whole lot of people out 
here that are probably more upset than what I am.
    Can you just share with us a little bit about why this is 
taking more than 2 years just to get the original plans done, 
so you can get the monitoring in place so we don't have this 
kind of thing because you don't have the information necessary 
on how to appropriately maintain the water levels in this major 
structure throughout the central part of the United States?
    Mr. Ponganis. Senator, one, several actions took place 
immediately after the flood event. We did work with the other 
agencies. As part of that coordination/collaboration with NOAA 
and USGS was the emphasis that--the foundation for the WRRDA 
section that you've identified. So, one, that was a result of a 
lot of good work that was done prior to WRRDA 14.
    Second, we have worked with NOAA to look at flood 
forecasts. Could we have foreseen it? Are there changes that 
are occurring? Can NOAA, who we rely on, from the weather--
National Weather Service and the forecasting to look and 
predict earlier on. And those reports of--a couple have been 
completed. One's still ongoing. So we haven't, in the absence 
of seeking appropriations for this particular section, we have 
not stood still, sir. We have tried to do our best working with 
those agencies and trying to get better. You are totally 
correct, when operating a major system like this, having 
information early on is critical.
    Another part is we have started, and continue, to this day, 
with having calls early on, starting in January, with the 
region, with the forecasting agencies to share whatever 
information we have as early as we can, sir.
    Senator Rounds. I think it still comes back down to it 
should not take 5 years to implement this type of a program, 
and right now we're talking about years to come yet, unless we 
can expedite this. Could I have your assurance that the Corps 
of Engineers would be interested in expediting this process to 
get this in place as soon as possible?
    Mr. Ponganis. Sir, we'll work with the Administration on 
trying to implement that section of WRRDA as quickly as we can, 
sir.
    Senator Rounds. Very good.
    In 2008 the Corps issued a Real Estate Guidance Policy 
Letter Number 26. This directive required municipal and 
industrial water users from the Missouri River Mainstem 
Reservoirs to acquire a water storage contract from the Corps 
prior to the Corps' issuing an access easement for a pump site. 
Access easements are needed for all South Dakota water users of 
the Missouri River to include municipal, industrial, and 
temporary use for short-term projects for which State permits 
have been issued.
    The Corps' unwillingness to issue access easements affects 
South Dakotans' ability to manage the public's ability to use 
water from the Missouri River. Do you plan to continue denying 
access easements to South Dakotans seeking to use water from 
the Missouri River?
    Mr. Ponganis. Senator, let me give you the status of where 
we're at and our direction from the Assistant Secretary of the 
Army's office. About 2012 we were asked by the Assistant 
Secretary to produce surplus water reports for the six major 
reservoirs projects. It was through that process and approval 
of those reports that would allow us to move forward and enter 
into contracts with the--with the provision of WRRDA 14 of not 
charging, and therefore allow the real estate access. One of 
those reports has been approved by the Assistant Secretary of 
the Army's office for Garrison. There's still--other ones are 
under review.
    Concurrently, the Assistant Secretary of the Army's office 
with our headquarters have been pursuing a rulemaking on 
surplus water reports, Water Supply Act, charging practices, 
our policy of how to allow for these storage contracts, et 
cetera. And the reason the Secretary's office was going to 
pursue that was because when this issue came back up in 2012, 
it was found out nationwide it was being--there's 
inconsistencies across this country in how we were implementing 
that, and the idea was to try to get some consistency. That 
rulemaking is being done at that level, not in the regional 
level.
    I can't give you--sir, I would be speculating of where 
they're at. I know they've been working very hard on it. 
They're very hopeful that something can come out soon so that 
we can have that. And if it comes out as a rule, for comment by 
all the States, stakeholders across the country. It's an 
important issue, as you know, and nationally water supply is a 
major concern across this country given the recent droughts 
that we've had.
    Senator Rounds. Well, based upon the 2014 WRRDA bill, it 
required the Corps to waive the proposed water charges for 
contract and surplus water identified in the surplus water 
reports. Can you tell me the status of the surplus water 
studies then? Is that the one that you're saying right now that 
they're still in the middle of trying to do a rulemaking 
process?
    Mr. Ponganis. They're in the middle of doing the 
rulemaking. We are implementing congressional direction on--we 
are not charging per that section of WRRDA, sir.
    Senator Rounds. So you're not charging for the water that's 
in storage, but you're still in the middle, as you understand 
it, and I understand this is not regional, but your 
understanding is that they're in the middle of proposing the 
rules to charge or to put together a policy to charge for the 
water even though Congress has directed that for the next 10 
years you not charge for the water in storage. Is that a 
correct analysis here?
    Mr. Ponganis. So the 10-year moratorium on charging is for 
water for surplus. There's two acts. One is the surplus water 
provisions and also then there's the Water Supply Act. And 
again, sir, I haven't been involved in any details of the 
national rulemaking to give you any specifics on how that's 
being addressed, sir.
    Senator Rounds. OK. I don't think that there should be a 
charge for that water which flows through. I think that's part 
of the process that we should have access to. I'll go back down 
to even the city of Pierre, which is right on the Missouri 
River, simply trying to get access so they can do irrigation in 
their park systems. As of yesterday they still had not had a 
response back simply to get access across the Corps land to get 
in to put in a pump station so that they can access the water, 
which is part of the free flowing part in the Lake Sharpe area 
of the Oahe dam. There's got to be a better way to do this.
    Currently, Mr. Ponganis, the Corps is currently engaged in 
a recovery program to replace lost habitat for the pallid 
sturgeon, the piping plover and the least tern. Can you update 
us on the status of these plans?
    Mr. Ponganis. Yes, Senator. We are working with the 
Missouri River Recovery Implementation Committee, per 
congressional direction under WRRDA 07, that committee was 
formed, approved by the Assistant Secretary of the Army at the 
time. We've had an independent scientific advisory panel review 
all of the current science. We're still looking at the 
recommendation of the scientists in terms of what actions would 
be needed or required and life stages of these different 
endangered species, how best to look at that.
    We're right in the middle of that analysis, sir. And the 
schedule is to work through that analysis, identify potential 
actions, evaluate those actions and produce a draft 
environmental impact statement by the end of this calendar 
year. That would come out for public review, regional reviews 
so everybody has a chance to look at that. No decisions have 
been made on what types of actions we would take in the future 
because we still have to go through that process, sir.
    Senator Rounds. OK. First of all, let me thank you for 
coming out for this meeting today. Let me just finish in terms 
of questions for you today, sir, just asking if there was 
anything that Congress has not done that they should be doing 
that we can help with with regard to helping you to eliminate 
or to absolutely minimize the possibility of a flood like what 
occurred in 2011 from happening again; I most certainly would 
invite your thoughts on it.
    I can tell you that I was fortunate. We had a city which 
stepped way up in the city of Fort Pierre and help put together 
a berm that protected all the homes in our development area. So 
I'm one of the lucky ones because we didn't have our home 
destroyed. I would suspect that there are folks here in the 
audience today who did have their homes destroyed.
    And I think the message if nothing else is that this has 
not been one of those items which has simply been put on the 
back burner because we had a drought in 2012, and that 
somewhere along the line, even though sometimes we're not very 
efficient at the Federal level, we get things done. And that, I 
hope, is part of what folks come away with is that there truly 
is an intent to try to fix this problem because one clearly 
exists. And if there's anything that Congress needs to hear 
from you about what we need to do to help you in your job to 
see that it doesn't happen again, I would offer this--you know, 
a few minutes for you to express that at this time.
    Mr. Ponganis. Well, Senator, again, we recognize this is an 
extremely important and complex system out here. Your 
statements earlier about having better information as early as 
possible, we're exploring those. And we will do everything 
possible to try to improve upon that in the future. 
Communication is key as you also mentioned. We will continue to 
have those early and often regional discussions of what the 
system looks like for the coming year, our best estimates, both 
from a Federal and which allows the States--as well as the 
public--to comment on what information they may have so we can 
have a better understanding. So we'll continue to do that, sir, 
and if we find out anything else that we need we will 
definitely let you know.
    Senator Rounds. Thank you. Thank you, Mr. Ponganis. 
Appreciate it.
    Mr. Ponganis. Thank you.
    Senator Rounds. At this time I would also like to call up 
our second panel of witnesses. Our witnesses joining us for our 
second panel today are Secretary Steve Pirner, Secretary for 
the Department of Environment and Natural Resources. And Steve, 
come on up and join us, please, up here.
    Chairman Harold Frazier, Tribal Chair of the Cheyenne River 
Sioux. Chairman, welcome today.
    Mr. Jeff Dooley, District Manager of the Dakota Dunes 
Community Improvement District. Jeff, welcome.
    And Mr. Paul Lepisto, Regional Conservation Coordinator of 
the Izaak Walton League of America. Paul, come on up.
    By the way, for anybody that's here or watching, if you 
have thoughts, you'd like to have something incorporated into 
this, I will make the announcement at the end of the meeting as 
well, but any written testimony that you'd like to have 
presented at this is welcome. We will record it in as part of 
the records on this, and we will also hold this meeting open 
for an extra 2 weeks as well. So that as you've heard testimony 
from the individuals that are up here, and if you'd like to 
make a public comment on it, a personal contact back in, and 
you'd like to have it entered into the record, this meeting 
will actually stay open for a period of 2 weeks to allow for 
additional comments to be entered into the congressional record 
as well.
    So with that, we will now turn to our first witness, 
Secretary Steve Pirner for 5 minutes. And before I allow Steve 
to begin, I just want to say thank you because you're one of 
the guys that a lot of the other folks from around the country 
call the dean of the folks that work in the area of environment 
and natural resources. I know that you worked for me for 8 
years when I was Governor, and we most certainly appreciated 
your hard work and your professionalism. And I most recently 
asked if he would come up and testify in front of the entire 
Environment and Public Works Committee, which he did in DC. And 
Steve was one of these guys that truly understands that DC is 
perhaps a place that some people like to visit. He doesn't, but 
he came anyway. And I appreciated that. And once again, I've 
asked him for the second time now in less than about a month 
and a half to participate.
    So, Steve, with that, Secretary Pirner, would you please go 
ahead with your statement. And once again, I'd like to limit 
them to about 5 minutes, but I'm not going to hold you to an 
exact 5-minute limit. Please, Steve, go ahead.

STATEMENT OF STEVE PIRNER, SECRETARY, SOUTH DAKOTA ENVIRONMENT 
                     AND NATURAL RESOURCES

    Mr. Pirner. Chairman Rounds, thank you very much for 
holding this hearing here today. My name is Steve Pirner, 
Secretary of the South Dakota Department of Environment and 
Natural Resources.
    We learned a lot about the Missouri River and flooding in 
2011, but today I want to touch on some other problems that 
you've already touched upon and present some possible 
suggestions. I want to share with you our perspectives on the 
surplus water reports and reallocation studies proposed by the 
Corps of Engineers for the Missouri River reservoirs and again 
offer suggestions for improvement.
    To put our issues with these studies into context, remember 
that our people and tribes paid a heavy price for the four 
Missouri River dams in South Dakota. These reservoirs 
permanently flooded more than a half-million acres of our most 
fertile river bottomlands. Many citizens and tribal members 
were forced from their lands, from their homes, and from their 
communities. The promise of Federal irrigation projects to help 
offset these losses never materialized.
    Then another payment was extracted from us in 2008 when the 
Corps issued the Real Estate Guidance Policy Letter Number 26 
that you talked about. This policy requires municipal and 
industrial water users to acquire a water storage contract 
prior to the Corps' issuing an access easement to the Missouri 
River reservoir for a pump site, but the Corps had no process 
for issuing the contracts. Therefore the effect of the policy 
was to place a moratorium on easements to the Missouri River 
reservoirs.
    This moratorium hit South Dakota hard. Out of a thousand 
miles of Missouri River shoreline, only about 100 miles were on 
the two short free flowing stretches in the State. Therefore 90 
percent of our shoreline became off limits to potential users 
of the Missouri River water. Midland Contracting was one of the 
first to find this out when the Corps told them they could no 
longer pump water used for dust control out of Lake Sharpe. The 
most vivid example was the Corps' refusing to let another 
contractor pump water during the 2011 flood.
    To develop a process for Policy Letter Number 26 the Corps 
began Surplus Water and Reallocation Studies under the 
authority of section 6 of the 1944 Flood Control Act and the 
surplus water provisions of the 1958 Water Supply Act. We do 
not dispute the Corps has authorities under those acts, but we 
strongly dispute the Corps' resulting definition of stored 
water as being all the water within the reservoir boundaries. 
This new definition, should it go unchallenged, creates a 
monumental change to the law and would defeat States' rights to 
natural flows that by tradition and by law are under the 
jurisdiction of the States. To better understand natural flows, 
visualize that reservoirs have stored water sitting on top of a 
river with natural flows passing underneath. This natural flow 
of the water represents water that should be under the 
jurisdiction of the State.
    States' rights to natural flows of navigable waters within 
their borders are constitutionally founded and protected in the 
Equal Footing Doctrine. Congress acknowledged this States' 
right in the first sentence of section 1 of the 1944 Flood 
Control Act by stating, ``It is declared to be the policy of 
the Congress to recognize the interests and rights of the 
States in determining the development of the watersheds within 
their borders and likewise their interests and rights in water 
utilization and control.'' As a consequence of the doctrine and 
the enacted law the Corps must acknowledge the States' right to 
natural flows.
    Another concern with the Corps' studies is one of equity. 
The Corps has documented the tremendous benefits the reservoirs 
supply to people throughout the basin-- controlled water 
supplies, hydropower, flood control. Now to require just the 
upstream States to pay the cost through the stored water fees 
with people in the downstream States enjoying these benefits at 
no cost is not fair or equitable. As Governor Daugaard wrote to 
the Corps in 2012, ``To impose all reservoir operation and 
maintenance costs on upstream States alone adds insult to 
injury.''
    To resolve these issues, South Dakota suggests Congress 
take the following three actions:
    No. 1, reiterate that natural flows through the reservoirs 
exist and those flows remain under the jurisdiction of the 
States.
    No. 2, make permanent the 10-year waiver of the 2014 Water 
Resources Recovery and Development Act on water charges for 
contracted surplus water.
    And No. 3, lift the moratorium on pump access easements by 
rescinding the Corps' Real Estate Guidance Policy Letter Number 
26, and allow users who have obtained State water right permits 
to pump water without interference from the Corps.
    I hope this information is useful to the subcommittee. 
Thank you again for the invitation.
    Senator Rounds. Thank you for your testimony, Secretary 
Pirner.
    Our next witness is Chairman Harold Frazier. Chairman 
Frazier, you may begin.

           STATEMENT OF HAROLD C. FRAZIER, CHAIRMAN, 
                   CHEYENNE RIVER SIOUX TRIBE

    Mr. Frazier. Thank you, Senator Rounds, for the opportunity 
to be here and to address your committee. I thank you for that.
    My name is Harold Frazier, and I'm the Chairman of the 
Cheyenne River Sioux Tribe. Our reservation is the size of 
Connecticut. We have two rivers that run through it--the Moreau 
River and the Cheyenne River. Our reservation is home to four 
bands of the Sioux Nation. We have nearly 19,000 members that 
reside on our reservation. Through treaties, executive orders, 
acts of Congress, case law, United States has a unique trust 
responsibility to protect our trust assets and our lands. It's 
odd that the Federal Government, through the Corps of 
Engineers, is destroying our lands and our way of life.
    I live 12 miles from the mouth of the Moreau River in the 
community of White Horse, and about 3 years ago we had a flood 
along the Moreau River. And when you go south, there's a road 
runs south toward Ridgeview and on into Eagle Butte. That was 
flooded. When you go east along the Moreau River toward 
Mobridge, at about four spots that road was flooded. So the 
only way out was to the west toward Timber Lake, but yet 2 
miles out of White Horse the water level was right up to the 
road. So I think that if we ever have another flood, where I 
live will be completely surrounded except for going north 
horseback. It is a concern of ours the way the Corps is 
managing the river.
    A lot of our problems that come from the flooding of the 
Moreau River are what we call the Promise Bridge. This bridge, 
the original design was supposed to be 140 feet long, longer 
than what it is, and have an additional 70 feet span on each 
side of the bridge to accommodate the level of water and 
sedimentation that would flow from the Moreau into the 
Missouri. But in 1960 the Corps, through a memo, recommended 
changes to the design of the bridge that shortened the span of 
it. This was to save the Government a mere $100,000. But this 
bridge, this bottlenecks everything and causes flooding 
upstream on the Moreau River, not only destroying fertile 
agriculture river bottoms, but there's a cemetery that belongs 
to the St. Mary's church that is completely flooded every time 
it floods the Moreau River.
    Another problem is we have a BIA road, Route 3, and it is 
just constantly eroding, caving in, caving in. The BIA moved it 
to the north, but now it continues to cave in. Now it's right 
up to the fence line. So it ain't going to take too much longer 
before that road is completely into the river.
    There was a flooding in 1997, and the tribe met with the 
Corps to seek help in remediating the damage caused by the 
flooding, and the Corps' response was, You have to sue us 
because we have no funds to remediate the situation. So 2003, 
the tribe and numerous individual tribal members filed a 
lawsuit against the Corps of Engineers. And in September 2014 
the tribe met with the Assistant Secretary Jo-Ellen Darcy and 
Steven Kopecky in their office to discuss the pending lawsuit, 
the flooding, and the need to lengthen the span of the bridge, 
but because of the pending lawsuit Assistant Secretary Darcy 
would not talk about any settlement options.
    And as far as the bridge, we were told that we would be in 
contact with officials in the Omaha office to seek solutions, 
but since then we have heard nothing from the Corps about 
trying to fix the bridge.
    We feel that since the Corps built it originally, since the 
Corps' operation of Lake Oahe is a major factor in our 
situation, the siltation problem, we believe the Corps has a 
responsibility to fix this situation by removing the silt and 
widening the distance or spanning between the bridge columns 
that are in the Moreau River.
    Another issue where--that the Corps has failed the Cheyenne 
River Sioux Tribe is between 2012-2014, an individual south of 
the Cheyenne River dug a trench north of the Cheyenne River. 
When he dug that trench, originally it was 100 feet wide and 2 
miles long, and his goal was to route the river. And by him 
doing that, you know, not only did he alter our boundaries, but 
he also took approximately about 140 acres of our land.
    Back in the 1990s we were in a lawsuit with Homestake Gold 
Mine because of the mine tailings and so forth coming down into 
our water intake. And since then a lot of the mine tailings and 
sedimentation and things like that have kind of subsided. But 
by this individual digging his trench, disturbing the ground, 
we have had samples through our EPA office that have seen a 
rise of mercury and other contaminants. We did report it to the 
Corps. The Corps told us in DC that this individual approached 
them, asked for a permit. They denied it, but he went ahead and 
did it anyway.
    In 1960, when they removed our agency, they replaced a lot 
of our buildings. And one of our buildings is our 
administration building with the BIA. Right now, a couple years 
back, we were moved out of there because of mold and things 
like that. And we did talk to them about assisting us in any 
type of way, planning, and so forth. They did tell us in 
Washington that they would help us with 135,000 and start 
developing a plan to build a new tribal building, but since 
then we have heard no response from them.
    In conclusion, I want to thank you for the opportunity, and 
I appreciate any kind of assistance you can to help the 
Cheyenne River Sioux Tribe and all of our members and our 
residents, because there's a lot of residents that reside on 
the reservation that are not members of our tribe. And I thank 
you for the opportunity.
    Senator Rounds. Thank you, Chairman Frazier.
    Now we will hear from Mr. Jeff Dooley. Mr. Dooley, you may 
begin.

   STATEMENT OF JEFF DOOLEY, MANAGER, DAKOTA DUNES COMMUNITY 
                      IMPROVEMENT PROJECT

    Mr. Dooley. Thank you, Senator. We all appreciate you 
bringing up this issue in this area, in this format. As you can 
see by the turn-out it's a very important issue to all of us.
    In preparation for this testimony I drew on my experience 
as manager of the community Dakota Dunes that's right on the 
Missouri River and my role in the 2011 flood fight. And I also 
reviewed transcripts from two congressional committee hearings 
that were held on this issue along with a Corps document 
entitled ``Review of the Regulation of the Missouri River 
Mainstem Reservoir System During the Flood of 2011.''
    I see three major themes that came out of that review. No. 
1 is improved communication between the Corps of Engineers and 
the stakeholders. As the events that precipitated the 2011 
flood unfolded from April through May, there was insufficient 
communication as to the increasing problem of melting snowpack 
and plains snowpack and the rain events in the upper basin.
    By the time the communications were established the release 
and projections were escalating quickly making it difficult to 
formulate a response. However, since that time the Corps has 
taken substantial steps to formulate a regimented schedule of 
conference calls during the run-off season with Federal, State, 
local officials, as well as the media and congressional staff 
to provide updates on climate and run-off conditions as well as 
reservoir releases and power generation plants.
    Additionally, during these calls there was time allotted 
for questions to be posed by each State, by each local 
jurisdiction, and they take a significant amount of time to go 
through that list and provide that opportunity. Had these calls 
been in place in 2011 I think the local jurisdictions in the 
State and the stakeholders could have asked questions and 
challenged some of their assumptions they made that dictated 
their management decisions.
    It should also be noted that in 2011 the Corps was very 
responsive to our needs as far as preventive measures go, and 
also during the recovery phase. And in 2014 this area 
experienced a large flooding event on the Big Sioux River, and 
the Corps was able to reduce releases from Gavins Point Dam to 
10,000 CFS, which really helped the water elevation of the Big 
Sioux, and it created a manageable situation in some cases.
    No. 2, assessing and prioritizing of the authorized 
purposes outlined in the Corps Master Manual. From a citizen's 
perspective, the conflict of the authorized uses is commonly 
referred to as a major impediment to flood control on the 
Missouri River. A study entitled ``Missouri River Authorized 
Purpose Study'' was underway prior to the 2011 event. As I 
understand it, that progress has been suspended on the study, 
that which would have looked at each authorized use and kind of 
prioritize it and have had it discussed. The sometimes 
conflicting uses can cause a slower response and attention to 
the flood control.
    Third, improved data collection as it relates to plain 
snowpack and soil moistures. And you mentioned this in your 
comments during the Corps panel, and while the torrential May 
rains in the upper basin were a major contributor to the record 
run-off and difficult and maybe even impossible to predict, the 
snowpack on the plains and in the mountains were above average 
and quantifiable. An improved snowpack and soil moisture 
monitoring system would allow better predictions of known 
precipitation and the resulting run-off.
    The need for improved data collection is documented in the 
Corps of Engineers' post-event review entitled, ``The Upper 
Missouri Basin Monitoring Committee--Snow Sampling and 
Instrumentation Recommendations.'' And as you said, section 404 
of the WRRDA 2014 provides for that to improve that, and no 
actions have been taken. I would encourage Congress to continue 
to push for these improvements and to maybe set some milestones 
for its implementation.
    Also, I'd like to note that after the 2014 Big Sioux River 
flood, local jurisdictions found that data collection along the 
Big Sioux was insufficient to provide accurate water surface 
elevation projections during that event, and as a result the 
Dakota Dunes, North Sioux City, and Union County partnered to 
provide the local match with USGS to implement three new gauges 
along the Big Sioux River below Akron. Those are in place and 
are working and are collecting data for a year. So I think that 
kind of falls under where there's a will there's a way type 
subject. So with that, again, I appreciate you bringing this 
issue up in this format, and I will standby for any questions.
    Senator Rounds. Thank you, Mr. Dooley.
    We will now hear from our next witness, Mr. Paul Lepisto. 
Mr. Lepisto, you may again.

 STATEMENT OF PAUL LEPISTO, REGIONAL CONSERVATION COORDINATOR, 
                 IZAAK WALTON LEAGUE OF AMERICA

    Mr. Lepisto. Thank you, Senator. Thank you for holding this 
hearing.
    I'm with the Izaak Walton League of America. It's one of 
the oldest, most established conservation organizations in the 
United States. We have 43,000 members around the country and 
240 chapters. Many of those members live in the States that I 
work in. I live in Pierre, South Dakota, but I work for the 
Izaak Walton League in the States of Iowa, South Dakota, and 
Nebraska. And many of our members hunt and fish and truly enjoy 
living along the river, and the river plays a major role in the 
lives of many of our members.
    The League strives to look for common sense science-based 
solutions that work with the river rather than fighting against 
it. There's no question the Missouri is one of the most altered 
ecosystems on the face of the Earth. The alterations that came 
as a result of the 1944 Flood Control Act created the 
authorized purposes that others have talked about today are 
interesting because since their inception those authorized 
purposes have been and will continue to be in direct conflict 
with each other, one of the reasons why management of the 
system is so difficult.
    The Missouri today is far different than the historic 
river. Thirty-five percent of the river is impounded in the six 
reservoirs; 33 percent of it is contained by the artificial 
navigation channel between Sioux City and St. Louis. And with 
those changes millions of acres of the river's historic aquatic 
and terrestrial habitat have been lost or destroyed.
    The modifications are very significant. The river was 
shortened by more than 120 miles between Sioux City and St. 
Louis with construction of the navigation channel. These 
changes destroyed most of the braided side channels, the 
chutes, wetlands, islands, sandbars, backwaters, natural 
floodplain and riparian forest that historically made the 
Missouri one of the richest ecosystems on the face of the 
Earth.
    Habitat recovery efforts as have been mentioned are 
ongoing, but the League members believe that much more needs to 
be done. Many areas are worthy and in need of habitat 
restoration due to the high quality recreational, natural, 
scenic and historic resources that they contain. If they were 
restored, these areas could once again provide critical habitat 
for native fish and wildlife species and be a boon for the 
recreation industry.
    The Corps does face a tremendous management paradox. As 
mentioned, flood control is the only purpose that requires 
removing water from the six reservoirs. All the other seven 
purposes require the Corps to hold onto water. Another vexing 
management issue that we see is that only 53 percent of the 
basin is regulated by the reservoirs. That leaves nearly half 
the basin unregulated and subject to regular flooding 
irregardless of what's in the Corps' annual management plan or 
any of their management actions.
    In the past we've urged the Corps to increase their 
communication efforts about this fact so more people know that 
the Corps doesn't and cannot control run-off in the entire 
basin, and despite their best efforts periodic flooding will 
always occur on the lower river.
    With that we continue also to urge the Corps to always 
rethink rather than just rebuild man-made flood control 
structures that have in the past repeatedly failed. We support 
levee setbacks and additional river widening projects that 
would give the Missouri more room to roam in the lower river. 
This would provide additional flood risk reduction and by 
reducing the flood stage during high flow events.
    The Missouri River Master Manual called for a 3,000-foot 
floodplain from Sioux City to Kansas City and a 5,000-foot 
floodplain from Kansas City to the mouth. We've urged the Corps 
to work with local governments on new zoning ordinances to 
implement this wider floodplain which would save tax dollars 
and produce a much healthier river. The incredible dynamics the 
basin has have been discussed at large already today. The 
record run-off in 2011 resulted in that prolonged flood with 
massive damage throughout the basin, but that was quickly 
replaced by extreme widespread drought in 2012. These dramatic 
swings demonstrate the urgent need for a much more flexible 
management approach by the Corps and a much more adaptable 
management system to what is the actual hydraulic conditions in 
the basin.
    We support updating the master manual that would allow 
additional in-season adjustments that would accurately match 
the actual run-off as each year unfolds.
    Critically important water management decisions that impact 
the entire basin should not follow a locked-in-stone policy 
that's set months in advance of when the actual run-off 
conditions are realized.
    The current review policy of the water and storage happens 
only in March and July. That determines the navigation support 
and the navigation season length. It doesn't adequately address 
the needs of the residents of the basin. Once water, which we 
feel is the most precious and fragile resource in the basin, is 
released from the reservoir system, that water is gone forever. 
The League supports a comprehensive review of the eight 
authorized purposes to determine what's best for the American 
taxpayer and for the needs of all the people in the basin and 
for the river itself.
    The river, in essence, is still operating on a 70-year-old 
business plan, and that review is urgently needed and long 
overdue.
    The river today is vastly different than what was 
envisioned when the Flood Control Act was drafted in 1944. Some 
purposes have met or greatly surpassed the original 
expectations of that Act. Recreation, for example, exceeds 
estimates by more than 10 times today, while other purposes 
have fallen way short, meeting only a fraction of their 
original expectations. A review would streamline river 
operating expenses and we feel would bring the Missouri River 
into the 21st century.
    To many members of the Izaak Walton League the Missouri 
River is a national treasure and one of the Nation's most 
unique rivers. We feel it's an incredible economic engine, that 
if it's managed correctly for multiple uses, including fish and 
wildlife and outdoor recreation, the river would create even 
more jobs, more tax revenue, and additional recreational 
opportunities for families across the Nation.
    I thank you for your time and for holding this hearing.
    [The responses of Mr. Lepisto to questions for the record 
follow:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Senator Rounds. Thank you, Mr. Lepisto.
    I've got a few questions, and I'll just work my way down 
the line and around here, and then we'll kind of go from there.
    Mr. Pirner, Secretary Pirner, I would like to ask you about 
Policy Letter Number 26. You stated that the Corps has no 
process for issuing water storage contracts, and the result has 
been a moratorium on access easements to the Missouri River 
reservoirs. I understand that there have been applications to 
the Corps for access easements. Is the Corps responsive to 
these applications, or has the Corps been uncommunicative with 
the State on these issues?
    Mr. Pirner. Senator Rounds, I think the Corps has 
essentially--they've communicated their denial of those 
easement requests, pretty much. The only one that I know of 
that's still in play is the city of Pierre recently requested 
an easement access to put in potentially some pumps so that 
they could irrigate some of their green space, parks, and so 
on, and the capital campus that the Corps did respond back to 
and said they wanted more information. Since that time the city 
has responded with additional information, and that's where 
that matter lies.
    Senator Rounds. So as of yesterday they had not gotten a 
response back yet?
    Mr. Pirner. That would be my understanding, correct.
    Senator Rounds. What impact does the Corps' unwillingness 
to issue access easements have on municipal and industrial 
water users?
    Mr. Pirner. Senator, the way--as I said during my 
testimony, essentially anybody, any new user of Missouri River 
water has been pretty much shut off. And the reason, again, is 
because in South Dakota, we've got four reservoirs. Just about 
all of our shoreline on the Missouri River is in one of those 
reservoirs. And so by not draining an access easement to the 
reservoir, we're shut off. The only place that we don't have a 
reservoir would be those two free flowing stretches which are 
down in this part of the State.
    Senator Rounds. I think just in terms of laying out the 
frustration the folks in this part of the country get once in a 
while, I had anecdotal information from a contractor who 
actually, during the flood of 2011, they were trying to do some 
work on the boat ramp, which was above the reservoir. And the 
boat ramp enters--it's on Corps land. And my understanding is 
is that they simply wanted to get water out of the flooding 
Missouri River in order to do the compression and so forth on 
the boat ramp, and they were denied and told to go around down 
below the dam and get it out of the free flowing portion of the 
river. Is that correct? Am I correct on that?
    Mr. Pirner. That would outline relatively closely with the 
example that we heard as well.
    Senator Rounds. Doesn't sound like South Dakota common 
sense to me.
    Mr. Pirner. No, sir.
    Senator Rounds. Thank you. Secretary Pirner, the Surplus 
Water Reallocation Studies that are being undertaken by the 
Corps, the Corps is proposing to change the definition of 
stored water as being all the water within the reservoir 
boundaries. How does this definition run contrary to the 
historical constitutional interpretation of States' authority 
regarding water rights? Are you aware as to why the Corps is 
making this change?
    Mr. Pirner. No, sir, we are not. As I talked about in my 
testimony, there's really two legal bases for the States having 
rights to what I call natural flow of water. First is that 
Equal Footing Doctrine. When every State has been admitted to 
the Union, every State has been granted the same rights by 
Congress. One of those rights is the rights to the navigable 
waters and groundwater within its borders. And then as I talked 
about in the section 1 of the 1944 Flood Control Act, this very 
issue, if you go to John Guhin's South Dakota Law Review, I 
think you knew John, he was an Assistant Attorney General, did 
a lot of work on some of the litigation that's been pursued 
over the years with the Missouri River. He's put together a 
probably--he's passed away now, but this is probably one of the 
most complete reference documents on the ``Law of the 
Missouri'' is what he titled it. And he talks in there about 
this very issue about States' rights being a part of the 1944 
Flood Control Act and the amendments that were made to protect 
those rights. And again, section 1 of the 1944 Flood Control 
Act talks about specifically that Congress recognizes the 
interest and rights of the States in the development of the 
watersheds within their borders, and likewise their interest in 
rights in water utilization and control which to me is directly 
speaking to the prior--or the appropriation process that we use 
here in South Dakota to allocate rights to the use of the water 
to the public.
    So I think there's a clear basis for the State to have the 
right and the jurisdiction over the natural flow of the 
Missouri River; the definition that the Corps has proposed 
through these studies doesn't mention natural flow. Basically 
it says it's all the water. And we strongly, strongly disagree 
with that because we think that--I mean, we've been issuing 
water rights out of the Missouri River and the reservoirs for 
years. And another Federal agency, the Bureau of Reclamation 
clearly, clearly acknowledges--they manage Federal reservoirs 
as well. They clearly acknowledge the States' rights to natural 
flows. All of a sudden the Corps comes out with this new policy 
that natural flow is absent from the discussion, and we're 
going like, Where is our water? Where did it go?
    Senator Rounds. By reference, we will also acknowledge and 
enter into the record Mr. Guhin's work----
    Mr. Pirner. That would be an excellent addition, yes, sir.
    [The referenced information was not received at time of 
print.]
    Senator Rounds. Thank you.
    Chairman Frazier, your testimony says that you filed your 
lawsuit against the Corps in 2003 and that it has since been 
referred to the U.S. Department of Justice Environment and 
Natural Resources Division. Is it correct that this lawsuit has 
now been pending for over a decade, that the Corps has made no 
progress in attempting to settle this issue?
    Mr. Frazier. Yes, that's correct. The only settlement offer 
that they offered to us was they wanted us to grant them a 
flowage easement which a lot of our members disagree with 
because they shouldn't have a right to flood our lands. You 
know, and like I mentioned, and what I've seen living along the 
Moreau River all my life, you know, it's just slowly going 
further, further back west into the Moreau River. And I recall 
at one point I watched a documentary on a dam such as the Oahe 
Dam, and you know, I know the purpose of the Flood Control Act 
was to control flooding downstream, but it says as years went 
by--goes by, probably 40, 50 years, these dams are going to 
start causing problems upstream. And I think we're at that 
stage now. You know, at Cheyenne River we got, you know, a lot 
of our--I just seen a lot of good hay bottoms just eroding 
away, just going into the river, river widening, a lot of 
siltation. It's just a big problem, but . . .
    Senator Rounds. Chairman, on the Moreau, for those folks 
that aren't familiar with this area, it's an area which flows 
on the west side of the Missouri River into the Missouri River, 
and the Moreau is one of the primary tributaries into the 
Missouri River there. But the dam--or I guess I can almost call 
it the dam, but it's the Promise Bridge that goes across 
Moreau. I've been there. I've seen it. And what they've done is 
is they've moved out, they've shortened the span. And in 
shortening the span they had to get to where the span would 
begin, and basically what they've created is a semi-dam there 
where the water can't get through the trestles underneath the 
dam, and so it backs up into the areas that you identified, 
including the cemetery. And my suspicion is as close-knit as 
everybody is in our parts of the country, you probably have 
relatives that are buried there as well. If nothing else, if we 
could get the Corps to work to resolve the issue surrounding 
the Promise Bridge and to get that area resolved, so that we 
didn't have water backing up behind it, that would make a major 
cause of concern for the members of your tribes, they would at 
least see something coming from the Corps to try to eliminate 
some of the problems that are being caused by that construction 
project. Fair enough?
    Mr. Frazier. Yes. Yes. If we can get that bridge resolved, 
expanding it or cleaning some of that siltation near it, I 
think that would greatly improve the lives, you know, of our 
people along the Moreau River.
    Senator Rounds. Thank you, Mr. Chairman.
    Mr. Frazier. Thank you.
    Senator Rounds. Mr. Dooley, in your testimony you say that 
the conflict of authorized uses is commonly referred to as--let 
me slide back in a little bit because I think part of what you 
suggested here today was truly a chance to find some common 
ground with the Corps. And what you indicated is is that after 
the flood in 2011 that you found that the Corps stepped in and 
that they were responsive to the emergency needs at that time. 
Fair statement?
    Mr. Dooley. That's fair.
    Senator Rounds. OK. Since that time you've also indicated 
that the communications that have been provided have been 
helpful in terms of maintaining the ability to get advice back 
and forth. And have they been responsive to the concerns that 
you and the community down here have laid out to them?
    Mr. Dooley. Thank you, Senator. You know, my experience 
with the Corps as it relates to Dakota Dunes is we've always 
been able to get the information we need. These conference 
calls are a really great forum for them to put out the 
information that they're going off of, and it allows the 
stakeholders, which there's a lot of expertise throughout the 
stakeholder community, allows them to ask questions and 
challenge some of the things that the Corps are doing with the 
river. So in that aspect I think the communication has been 
very good. The question and answer part of those conference 
calls are good. And outside of that, any questions that I have 
regarding the Missouri River I can pose to Ms. Farhat and her 
staff, and I've always been able to get a good response on 
that.
    Senator Rounds. OK. How about when we talk about the suit 
and the issues surrounding that; you indicate that you put 
together a team here that actually helped to provide for the 
hydrological metering information, and so forth. Can you share 
a little bit about how you worked that, and did you need 
permission from anyone to do that?
    Mr. Dooley. Well, after the 2014 Big Sioux event, the State 
Lieutenant Governor Michels came down, and we all met and 
compared notes, and it became apparent to us that one of the 
problems were the projected levels of the Big Sioux River were 
off. And as we looked a little bit further, it came to our 
attention that one of the reasons is there weren't enough river 
gauges on the Big Sioux River below Akron, I believe. So we 
talked about it between the communities of North Sioux City, 
Dakota Dunes, and Union County, and worked with the USGS to get 
those installed and operational. And to do that we had to pay 
roughly half of installation costs, capital costs, and now we 
pay roughly half of the operating costs moving forward here in 
about a year.
    Senator Rounds. OK.
    Mr. Lepisto, according to the South Dakota Game, Fish and 
Parks, recreation on the Missouri River provides more than $100 
million in economic benefit to the Dakotas and Montana. In your 
testimony you say that more people should have increased access 
to the river for recreation such as hunting and fishing as well 
as increased educational opportunities for families. What are 
the recreational access issues and limitations that face 
recreational users seeking to utilize the river today?
    Mr. Lepisto. Senator, as you're well aware in your 8 years 
as Governor of the State of South Dakota, the upstream States, 
during periods of extended drought, have spent millions, 
literally millions of dollars chasing water to provide 
recreational access on the reservoirs in South Dakota, 
Nebraska, North Dakota, and Montana when the levels are down 
for an extended period of time. The ramps either have to be 
greatly extended, which in some areas is not physically 
possible. So then those boat ramps and access facilities have 
to literally be relocated to an area that would facilitate 
recreational access near that area, but you have to put in the 
parking area, everything that goes with it, all the 
infrastructure that goes with it. When the reservoirs come up, 
all that work and money spent is literally under water again. 
So a management philosophy that would take that into 
consideration and make sure that the reservoirs by their nature 
go up and down, and with the management practices they do go up 
and down, but it's the drastic 30- and 40-foot drops in the big 
three; Lake Oahe, Lake Sakakawea, and Fort Peck in Montana that 
cause these problems and prohibit recreational access.
    We have the same issues with recreational access, the lack 
of facilities for people to get to the river and on the river 
below Gavins Point. I mentioned it in the written testimony I 
submitted that the Nebraska Game and Parks Commission and the 
Missouri Department of Conservation did a study on recreational 
spending from Gavins Point to St. Louis, and it came up with 
about $68 million in annual recreational spending. With more 
access and more facilities on the lower river, I think you 
could put at least a one in front of that 68 million and have 
that much more recreation on the lower river if those 
facilities and access sites would be available.
    Senator Rounds. Mr. Lepisto, you stated in your testimony 
that we should consider non-structural alternatives to levees. 
Can you tell us what these alternatives might be and how they 
would differ from the current levees used by the Corps?
    Mr. Lepisto. As I mentioned, Senator, in the testimony that 
the lower river is struggling to reconnect itself to its 
floodplain. If you look at the old maps through USGS or the 
Missouri River Institute at the University of South Dakota and 
see where the Missouri River used to run and the old side 
channels, chutes, backwater areas, the oxbow lakes, all of 
those have been cut off through the construction and ongoing 
maintenance of the bank stabilization and navigation project. 
We've been striving for years through this--the program I work 
with with the Izaak Walton League to encourage more 
reconnection, hydraulic connection to those old areas where 
those areas would be of benefit for the fish and wildlife 
species, also a boon for recreation, but they'll provide human 
benefits because that's going to take the crest off of the 
high-flow events. It will give floodwaters a place to go during 
high-flow events and so the human impact would be positive. We 
not only have increased recreation, increased fish and wildlife 
habitat, but we would have additional lower river storage areas 
for floodwaters during times of high flow or high run-off 
events.
    Senator Rounds. I have one more question. I'm going to 
begin it with Secretary Pirner, but I would also open it up for 
all of the panel as well. Secretary Pirner, a 2014 GAO office 
report concluded that the Corps would benefit from increased 
and updated soil moisture and snowpack monitoring program to 
help the Corps better predict potential flood conditions. Do 
you feel that the increased monitoring would be enough to 
prevent future flooding, or should the Corps do more to prevent 
future floods from occurring?
    And once again I would open this up first of all to 
Secretary Pirner and then anyone else who would like to have a 
thought in terms of the monitoring systems that we thought we 
were in the middle of working on, and what we've heard today 
has basically not gone very far so far. This is now 2016, and 
the flood occurred in 2011. The authorizations were completed 
in 2014. But Secretary Pirner, your thoughts on the monitoring 
system and its need.
    Mr. Pirner. Senator, I think the thoughts that went into 
that language in the 2014 WRRDA bill, I think the thoughts that 
went into that monitoring system that was proposed by Congress 
and approved by Congress will do the job, are adequate. I think 
what remains to be done, as you've pointed out today, now we 
need to do it. So the thoughts are there, and they're right, 
and they'll work, but now we need to put those thoughts into 
action.
    Senator Rounds. Anyone else? Mr. Dooley.
    Mr. Dooley. Senator, the major data component I think for 
managing the Missouri River is trying to figure out how much 
water ends up running into it, and to do that we need to make 
sure that the Corps has the adequate data available and the 
most comprehensive data available. I think from my perspective 
these measuring tools are absolutely vital for the best 
management practices of the Missouri River, and to try to at 
least minimize or eliminate flooding. I don't think you'll ever 
eliminate it, but to minimize flood impacts in the future. So 
someone needs to really make sure that this is followed through 
on and that that's implemented.
    Senator Rounds. Mr. Lepisto.
    Mr. Lepisto. Senator, ever since the 2011 flood the League 
in its comments to the Corps at their twice annual, annual 
operating planned meetings, in written comments and also at the 
meetings, we've urged them to as quickly as possible implement 
a monitoring system working with other State and Federal 
agencies so that knowledge and that data can be gathered 
accurately and quickly, and then most importantly shared with 
the stakeholders and residents of the basin so we know what the 
moisture content is of the snowpack that's on the plains, and 
especially the water content of the snow and the mountains. And 
we are as disappointed as you are that 5 years after that 
initial attempt to have this done we're still waiting for it to 
be implemented. So we would urge Congress, and we have urged 
Congress in letters on the annual budget request to provide the 
funding for those measuring devices and for that technology. To 
date the funding has not been there.
    Senator Rounds. Mr. Chairman.
    Mr. Frazier. Yes. Thank you. I think it would be a good 
thing for them to implement. I mean, that way there we could be 
prepared for what's going to be ahead of us. Kind of like what 
I see is what you said about, you know, the community of Fort 
Pierre, so we're ready to take whatever measures if it appears 
there's going to be flooding. And I agree with Mr. Dooley here 
that that's something we probably can't ever control, but, you 
know, at least minimize it and be prepared if it does happen. 
So I think that it is crucial for the Corps to have these 
monitoring devices implemented. I think it's time for them to 
start taking action. Maybe quit building a bomb for Iraq and 
use that money to pay for this.
    Senator Rounds. Gentlemen, I just want to say thank you 
very much for you taking your time today to come down here to 
participate with us in this--in this hearing. Once again, I'd 
like to thank all of our witnesses for taking this time. The 
record will be open for 2 weeks which would bring us to 
Thursday, April 14th.
    Let me close with this: I've heard some things today that 
I--that I had not heard before. I was not aware that the 
Promise Bridge had been under item of discussion for as long as 
it has been, for more than a decade. I know we did not get into 
the issue of the tribal building in Eagle Butte, but it was--
originally it was moved from down on the floodplain, and when 
the Oahe Reservoir was backing up, it was one of the areas 
which was moved, and the Corps built a different facility for 
you up in Eagle Butte, which was then identified as having mold 
in it. It was not usable. You had to move out of that. And I 
know you've been working for some time now to find a way to 
coordinate with other Federal agencies to be able to put 
together other resources to have a gathering facility.
    Once again, you've been frustrated, Mr. Chairman, with 
that. I will follow up with you. That is part of our written 
record, although we did not take much time to talk about it 
here publicly, but it is part of the written record. We would 
be happy to work with you on finding a way around that issue.
    Mr. Frazier. Thank you.
    Senator Rounds. The funding request, which we've talked 
about here, I was disappointed to find out that, No. 1, that 
there was, according to the Corps today, a lack of funding for 
this. I thought we would have studies completed and 
recommendations being made after this event in 2011. To a lot 
of us it's a very serious issue that occurred then.
    And at that time I think the Corps feels like they were off 
guard and their response was is that they didn't have the 
information available to make an accurate decision at the time 
and that it caught them off guard because a lot of it was late 
arriving moisture and that they've indicated that if they had 
these additional monitoring systems in place that they could 
prevent that.
    Same thing could have occurred this year, now 5 years 
later. I think it shows that we need to expedite the process of 
getting the review completed.
    It surprises me that they did not include it in their 
request to the President's budget again this year. If that was 
the case, most certainly that means that we will take it under 
consideration and find out what it is they need, but until they 
get a request made, until they get an estimate of what they've 
got to do with the proposal, it's pretty tough to put the money 
in the budget it would seem to me. So the first thing is is to 
get the doggone report done. And after 5 years I think it 
should be done.
    So we're going to put some pressure on the Corps, and we're 
going to expect some time dates. One thing I've learned in 
Washington, DC, folks, is is that to a lot of folks in 
Washington the result is is when you get a report or the result 
is is when you get a committee hearing rather than getting an 
actual something done. And results are what counts. And I can 
just share with you that there is a growing number of 
individuals who work within the U.S. Senate that understand 
that people of this State, people of this region expect 
results, not just studies. And you begin with a study, but 
you've got to have the results. And I think that's one thing 
that we will commit to you is is that we're going to get some 
results, one way or another. That's our job.
    With that, I will repeat that the record will be open for 2 
weeks, which brings us to Thursday, April 14th. Those 
individuals who are out here that have heard something that 
they would like to comment on, your written comments are 
welcome, and you do have 2 weeks in which to provide them to 
us. Members of our staff are up here and around the room; touch 
base with them. They will give you an appropriate way in which 
to get those items entered into the record. This hearing is 
adjourned.
    [Whereupon, at 2:35 p.m. the hearing was adjourned.]

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