[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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.gpo.gov/fdsys
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21-391 PDF WASHINGTON : 2016
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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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