    [Senate Hearing 115-321]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 115-321

    HEARING ON OVERSIGHT OF THE ARMY CORPS' REGULATION OF SURPLUS WATER AND
                           THE ROLE OF STATES' RIGHTS

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

                                      HEARING

                                   BEFORE THE

     SUBCOMMITTEE ON SUPERFUND, WASTE MANAGEMENT, AND REGULATORY OVERSIGHT

                                     OF THE

                                  COMMITTEE ON
                          ENVIRONMENT AND PUBLIC WORKS
                              UNITED STATES SENATE

                         ONE HUNDRED FIFTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                 JUNE 13, 2018

                                   __________

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

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            Available via the World Wide Web: http://www.govinfo.gov

                                  __________

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                   COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                         ONE HUNDRED FIFTEENTH CONGRESS
                                 SECOND SESSION

                        JOHN BARRASSO, Wyoming, Chairman
    JAMES M. INHOFE, Oklahoma            THOMAS R. CARPER, Delaware,
    SHELLEY MOORE CAPITO, West Virginia      Ranking Member
    JOHN BOOZMAN, Arkansas               BENJAMIN L. CARDIN, Maryland
    ROGER WICKER, Mississippi            BERNARD SANDERS, Vermont
    DEB FISCHER, Nebraska                SHELDON WHITEHOUSE, Rhode Island
    JERRY MORAN, Kansas                  JEFF MERKLEY, Oregon
    MIKE ROUNDS, South Dakota            KIRSTEN GILLIBRAND, New York
    JONI ERNST, Iowa                     CORY A. BOOKER, New Jersey
    DAN SULLIVAN, Alaska                 EDWARD J. MARKEY, Massachusetts
    RICHARD SHELBY, Alabama              TAMMY DUCKWORTH, Illinois
                                         CHRIS VAN HOLLEN, Maryland

                  Richard M. Russell, Majority Staff Director
                  Mary Frances Repko, Minority Staff Director
                                  ----------

                 Subcommittee on Superfund, Waste Management,
                            and Regulatory Oversight

                      MIKE ROUNDS, South Dakota, Chairman
    JERRY MORAN, Kansas                  CORY A. BOOKER, New Jersey,
    JONI ERNST, Iowa                         Ranking Member
    DAN SULLIVAN, Alaska                 BERNARD SANDERS, Vermont
    JOHN BARRASSO, Wyoming (ex officio)  CHRIS VAN HOLLEN, Maryland
                                         THOMAS R. CARPER, Delaware (ex
                                             officio)

                                C O N T E N T S

                                  ----------
                                                                       Page

                                 JUNE 13, 2018
                               OPENING STATEMENTS

    Rounds, Hon. Mike, U.S. Senator from the State of South Dakota...     1
    Booker, Hon. Cory A., U.S. Senator from the State of New Jersey..     3

                                   WITNESSES

    Piner, Hon. Steven M., Secretary, South Dakota Department of
      Environment and Natural Resources..............................     3
        Prepared statement...........................................     6
    Scott, Ward, J., Westerns Govorners' Association.................     9
        Prepared statement...........................................    12
    Mulligan, Stephen, J.D., Legislative Attorney, Congressional
      Research Service...............................................    18
        Prepared statement...........................................    20

                              ADDITIONAL MATERIAL

    Statement of the Western States Water Council....................    60
    Statement of South Dakota Department of Game, Fish, and Parks....    77
    Statement of Riter Rogers Law Office.............................    81
    Corps of Engineers Oahe Dam/Lake Oahe Project South Dakota &
      North Dakota Surplus Water Report..............................    94
    Aurora Brule Rural Water System, Inc; Surplus Water Report.......   101
    Statement of the National Water Supply Alliance (NWSA)...........   102
    Statement of the Western Governors Association...................   104

    HEARING ON OVERSIGHT OF THE ARMY CORPS' REGULATION OF SURPLUS WATER AND
                           THE ROLE OF STATES' RIGHTS

                                  ----------

                            WEDNESDAY, JUNE 13, 2018

                                   U.S. Senate,
             Committee on Environment and Public Works,
                  Subcommittee on Superfund, Waste Management,
                                      and Regulatory Oversight,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 3:15 p.m. in room
    406, Dirksen Senate Office Building, Hon. Mike Rounds (chairman
    of the subcommittee) presiding.
        Present: Senators Rounds, Booker, Ernst, and Van Hollen.

                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 hearing
    entitled Oversight of the Army Corps' Regulation of Surplus
    Water and the Role of States' Rights.
        Today we are meeting to hear directly from stakeholders
    impacted by the regulatory decisions made by the U.S. Army
    Corps of Engineers. Their testimony will provide the
    subcommittee an opportunity to consider legislative changes
    available to Congress, as well as the on-the-ground, real-world
    consequences of decisions made by the Army Corps and their
    effect on States and municipalities.
        Section 6 of the Flood Control Act of 1944 authorizes the
    Army Corps to make available to States, municipalities, and
    other entities surplus water stored in Army Corps reservoirs
    for municipal and industrial uses. The Flood Control Act also
    highlights the preeminent role of States and localities with
    regard to water rights, going so far as to State that it is the
    policy of Congress to recognize the primary responsibilities of
    States and local interests with regard to water supply.
        In December 2016, in the waning days of the previous
    Administration, the Army Corps published in the Federal
    Register a Notice of Proposed Rulemaking entitled Use of U.S.
    Army Corps of Engineers Reservoir Projects for Domestic,
    Municipal, and Industrial Water Supply. This rulemaking sought
    to define, ``key terms'' in the Flood Control Act of 1944 and
    the Water Supply Act of 1958.
        One of the key terms targeted by the proposed rule is
    surplus water. Surplus water appears undefined in Section 6 of
    the Flood Control Act. In the multi-decade period since the
    passage of the Flood Control Act, with the exception of the
    previous Administration, the Corps has declined to define
    surplus water. In formulating the proposed rule, the Army Corps
    failed to take into account natural flows of the river system
    when defining surplus water.
        Congress clearly intended to recognize and reaffirm the
    constitutionally protected rights of States to the natural flow
    of water through these river systems. The proposed rule is an
    attack on these States' rights and the States' ability to
    access these natural flows.
        In the case of my home State of South Dakota, we live with
    a permanent flood, as thousands of acres of productive farmland
    have been inundated to create the mainstem dams of the Missouri
    River. Last month, I was joined, in a letter, by South Dakota
    Governor Dauggaard, Senator Thune, and Representative Noem, in
    which we stated that 500,000 acres of our most fertile river
    bottomlands were permanently flooded as the reservoirs filled
    following the construction of these dams. South Dakota citizens
    and tribal members were forced from their homes and
    communities.
        No one doubts the benefits of multiuse Army Corps projects.
    But they need to be taken into proper historical context.
        In taking such an expansive view of what constitutes
    surplus water and, thus, subject to Federal control, the Army
    Corps clearly does not recognize the constitutionally protected
    rights of States to the natural flows of the river system.
    Instead, the Army Corps is attempting to produce a system in
    which legitimate municipal and industrial projects cannot gain
    access to the water passing through the States by refusing to
    grant easements to gain access to these water resources.
        The Army Corps is currently creating barriers to legitimate
    water uses. Earlier this year, when South Dakota's Game, Fish,
    and Parks Department requested access to an exceptionally small
    quantity of water from the Missouri River to construct a
    parking lot on government property adjacent to the reservoir,
    the Army Corps denied the request on the basis that this deeply
    flawed rulemaking had yet to be finalized.
        We all agree that the Army Corps has a legal right to
    regulate the use of water for authorized purposes, such as
    flood control and hydropower generation. I am not seeking to
    divert any water away from congressionally authorized purposes.
    What I am concerned with, however, is the notion that the
    people do not have a right to access the water passing through
    their States outside of well-defined purposes authorized by
    Congress.
        Blocking access to such an important resource is in direct
    conflict with congressional intent. Preventing States from
    accessing the water they are entitled to is an attack on our
    Federalist system of government.
        I want to be clear. It was never the intention of Congress
    to Federalize all of the water in our Country's major rivers.
    Any rulemaking to the contrary is an attack on the States'
    rights and an unlawful taking by the Federal Government.
        My hope is that today's hearing will shed light on this
    issue and motivate the Army Corps to consider promulgating
    rules more consistent with congressional intent and the water
    rights of States. This also includes a review and discussion of
    the existing practice of the Army Corps denying access across
    their take land for legitimate purposes by the States and other
    approved users.
        Now I would like to recognize Senator Booker for his 5
    minute opening statement.
        Senator Booker.

               OPENING STATEMENT OF HON. CORY A. BOOKER,
               U.S. SENATOR FROM THE STATE OF NEW JERSEY

        Senator Booker. Mr. Chairman, I have here my opening
    statement, which is nothing short of scintillating and also
    very moving.
        Senator Rounds. I would expect nothing less.
        Senator Booker. Yes. The time is short, though, sir. I am
    just going to submit it for the record.
        Senator Rounds. Without objection.
        Senator Booker. And I will pass out copies at the back for
    those of you who would like to read it right now.
        Senator Rounds. Thank you, Senator Booker.
        Our witnesses joining us for today's hearing are Steve
    Pirner, Secretary of the South Dakota Department of Environment
    and Natural Resources; Ward Scott, Policy Advisor, Western
    Governors' Association; Stephen Mulligan, Legislative Attorney,
    congressional Research Service.
        I want to thank you all for being here and I would, at this
    point, turn to our first witness, Secretary Pirner, for 5
    minutes.
        I can't say enough, and I am just going to do this as a
    special introduction. Secretary Pirner was the secretary of
    Water and Natural Resources when I was Governor. He was
    secretary before I became Governor. He has been one of the
    stellar individuals with regard to his knowledge, his interest,
    and his intensity in making sure that we have clean air, clean
    water, and that we understand the relationship between the
    Federal and State government.
        I know he is irritated every time I ask him to come to
    Washington, DC.; he would rather be along the shores of the
    Missouri River and pier, particularly in the summertime, but I
    most certainly appreciate your participation in this hearing
    today. So, with that, Secretary Pirner, please proceed.

    STATEMENT OF HON. STEVEN M. PIRNER, SOUTH DAKOTA DEPARTMENT OF
                   ENVIRONMENT AND NATURAL RESOURCES

        Mr. Pirner. Thank you very much, Senator Rounds.
        Ranking Member Booker and members of the Committee, my name
    is Steve Pirner, Secretary of the South Dakota Department of
    Environment and Natural Resources.
        You all have heard about the waters of the U.S. rule
    proposed by EPA. Many labeled that rule as the largest Federal
    takeover of our Nation's water resources ever attempted.
    However, the water supply rule proposed by the Corps of
    Engineers exceeds that Federal takeover action, at least as it
    impacts the Missouri River in South Dakota.
        Our issues with the proposed water supply rule began in
    2008. That was when the Corps issued Real EState Guidance
    Policy No. 26. This policy requires municipal and industrial
    water users to acquire a water storage contract prior to the
    Corps issuing an access easement 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 our Missouri River, our largest and most
    reliable surface water supply in the State.
        To advance the process, the Corps developed the proposed
    water supply rule. Under the rule, the Corps considered stored
    water, which is part of the surplus water, as being all the
    water in the reservoirs. This creates a monumental change in
    the law and steals South Dakota's rights to natural flows that,
    by tradition and law, are under the jurisdiction of the States.
        To better understand natural flows, visualize our Missouri
    River reservoirs with their stored water sitting on top of the
    river, with natural flow flowing underneath. That natural flow
    represents water that has traditionally been 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 and Section 1 of the 1944 Flood Control
    Act. We believe no other Federal law usurps these rights.
        Another concern is equity. The Corps has documented the
    tremendous benefits that reservoirs supply to people throughout
    the basin. Yet, in this rule the Corps applies fees to just the
    upstream States.
        To require the upstream States, who already have paid so
    much, to pay the cost through fees, with people in the
    downstream States enjoying those benefits at no cost, is not
    fair or equitable. As Governor Dauggaard wrote to the Corps in
    2012, to impose all reservoir operation and maintenance costs
    on upstream States alone adds insult to injury.
        We have about 1,000 miles of Missouri River shoreline in
    South Dakota, but only about 100 miles are on the two short,
    free-flowing stretches in the State; the rest border the Corps
    reservoirs. Therefore, 90 percent of our shoreline is off
    limits to potential users of Missouri River water due to the
    Corps' moratorium and the proposed water supply rule.
        Midland Contracting was one of the first to find this out
    when the Corps told them they could no longer pump water use
    for dust control out of the lake behind Big Ben Dam. The amount
    of water used from this reservoir, that is 80 miles long,
    covers 63,000 acres, was miniscule at best. The Corps has held
    fast to this moratorium, refusing to let a contractor pump
    water in 2011, even while flood waters were devastating Pierre,
    Ft. Pierre, and downstream communities.
        Another example is the city of Pierre. They have been
    denied access for several years to the river, which runs right
    alongside the city, to install a small pumping station that
    would allow the city to irrigate green space with river water,
    saving time and money.
        This moratorium remains in place today, as evidenced by the
    Corps response to our issuance of a temporary water right
    permit to a contractor on March 19th, 2018, to use 90,000
    gallons of Missouri River water out of the Oahe Reservoir. Oahe
    holds 6.4 trillion gallons. The Corps' response to this use of
    0.000001 percent of Oahe water was ``All requests for using
    water from South Dakota reservoirs are on hold until finalized
    guidance is received from headquarters. An alternate source of
    water should be utilized.'' All of these uses of water were
    approved by the State through our State water rights program.
    More detailed objections to the proposed rulemaking have been
    submitted by Governor Dauggaard, and I have enclosed those
    copies of his letters for your information.
        However, the bottom line is the Corps is attempting a
    Federal takeover of the Missouri River water in South Dakota.
    This rulemaking effort tramples States' rights and needs to be
    stopped now, before the Corps finalizes the rule in September.
    The future of South Dakota, I believe, is linked directly to
    having a Missouri River water supply that we manage as a State.
    Please do not let the Corps take that away from us.
        We ask for your help in stopping the rulemaking in the name
    of the equal footing doctrine, cooperative federalism, and
    protecting States' rights under the 1944 Flood Control Act.
        Thank you, Senator, for the invitation to appear here
    today.
        [The prepared statement of Mr. Pirner follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Rounds. Thank you for your testimony, Secretary
    Pirner.
        We will now turn to our second witness, Ward Scott.
        Mr. Scott, you may begin.

                      STATEMENT OF WARD J. SCOTT,
                     WESTERN GOVERNORS' ASSOCIATION

        Mr. Scott. Chairman Rounds, Ranking Member Booker, and
    members of the Subcommittee, I appreciate this opportunity to
    testify today on behalf of the Western Governors' Association.
    My name is Ward Scott and I am a policy advisor with WGA, where
    my work focused on western water policy and State-Federal
    relations.
        Western Governors have consistently expressed their concern
    to the Corps regarding its December 2016 proposed rule. These
    concerns have focused on three primary elements: first, the
    proposed rule would likely have preemptive effects on States'
    sovereign authority over water resources and corresponding
    State laws; second, the Corps' overly broad proposed definition
    of the term surplus waters includes natural historic river
    flows, which should remain under State jurisdiction; and,
    third, the Corps has not adequately consulted with potentially
    affected States, nor has it properly assessed potential
    federalism implications, as required by Executive Order 13132,
    in its development of the proposed rule.
        Water is precious everywhere, but especially in the West,
    where consistently arid conditions, diverse landscapes and
    ecosystems, and growing populations present unique challenges
    in the allocation and management of scarce water resources.
        State water laws have developed over the course of decades,
    and very greatly do account for local hydrology; the interplay
    between Tribal, State, and Federal legal rights; and
    complicated systems of water allocation. These State laws and
    the regulatory frameworks within which they operate must be
    accounted for in the development of any Corps rule.
        Western Governors have adopted a bipartisan policy that
    articulates a fundamental principal recognized by both Congress
    and the U.S. Supreme Court, which is that States are the
    primary authority for allocating, administering, protecting,
    and developing water resources, and they are primarily
    responsible for water supply planning within their boundaries.
        This well-established State authority is rooted in the U.S.
    Constitution as States, upon their admission to the Union,
    established their sovereign authority over water resources
    under the equal footing doctrine and continue to maintain this
    broad authority unless preempted by Federal law.
        Under the proposed rule, the Corps would define surplus
    water to mean any water available at a Corps reservoir that is
    not required during a specified time period to accomplish a
    federally authorized purpose of that reservoir. This definition
    fails to distinguish between surplus water, which is defined in
    relation to storage and authorized purposes, and natural flow,
    which is defined as waters that would have been available for
    use in the absence of Federal dams and reservoirs.
        In its Notice of Proposed Rulemaking, the Corps does not
    claim that its authorizing statutes, or any other relevant
    Federal statute, preempts State authority over a river's
    natural flows. Rather, both the Flood Control Act of 1944 and
    the Water Supply Act of 1958 clearly direct the Corps to
    recognize and defer to State law. Nor have States transferred
    or ceded to the Corps any rights to or authority over the
    allocation and management of natural flows.
        The Corps' proposed definition of surplus water is beyond
    the scope of its statutory authority and would usurp States'
    well-established rights over the natural flows of water through
    Corps reservoirs. As a result, the proposed rule would conflict
    with Congress's clear intent to preserve State water law and
    authority.
        Western Governors believe that any definition of surplus
    waters must plainly exclude natural historic flows from any
    qualification of water subject to the proposed rule.
        Western Governors' concerns also extend to the process by
    which the rule was developed. States should be afforded the
    opportunity for early, meaningful, substantive, and ongoing
    consultation with Federal agencies as part of the development
    of any Federal rule, policy, or decision which may have impacts
    on State authority. Nowhere is State consultation more
    important than in the context of western water resource
    management.
        Consistent with this policy, Executive Order 13132 requires
    Federal agencies to have an accountable process to ensure
    meaningful and timely input by State and local officials in the
    development of regulatory policies that have federalism
    implications.
        In its notice, the Corps declares that it does not believe
    that the proposed rule has federalism implications. WGA
    disagrees with this assertion. The proposed rule clearly
    qualifies for further review under Executive Order 13132, as
    its provisions would have substantial direct effects on the
    States and their authority over the management and allocation
    of their waters, as well as preemptive effects on States' water
    laws.
        Proper State consultation in an agency's decisionmaking
    process produces more durable, informed, and effective policy,
    and allows for genuine partnerships to develop between Federal
    and State officials. Providing States with an opportunity to
    submit written comments, which is already required under the
    Administrative Procedures Act, is not the same as consultation.
        In conclusion, the Corps' proposed rule has a substantial
    likelihood of interfering with, impairing, and/or subordinating
    States' well-established authority to manage and allocate the
    natural flows of rivers within their boundaries and to
    implement State water laws.
        Any definition of surplus water must account for and
    exclude natural flows of the river from waters that would be
    subject to Corps control. The Corps should not deny States
    access to divert and appropriate such natural flows, nor should
    the Corps charge storage or access fees where users are making
    withdrawals of natural flows from Corps reservoirs.
        The Corps should consult with States on a government-to-
    government level to better understand the impacts the proposed
    rule may have on States' authority over water resources and
    ways in which the Corps can partner with States to more
    effectively manage its projects.
        Thank you again for providing this opportunity to testify
    and for bringing attention to these important issues of States'
    rights and Federal responsibilities.
        [The prepared statement of Mr. Scott follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Rounds. Thank you for your testimony, Mr. Scott.
        We will now turn to our third witness, Stephen Mulligan.
        Mr. Mulligan, you may begin.

      STATEMENT OF STEPHEN MULLIGAN, J.D., LEGISLATIVE ATTORNEY,
                     CONGRESSIONAL RESEARCH SERVICE

        Mr. Mulligan. Thank you, Mr. Chairman. Chairman Rounds,
    Ranking Member Booker, my name is Stephen Mulligan. I am a
    legislative attorney in the American Law Division of the
    congressional Research Service. Thank you for inviting me to
    testify today on behalf of CRS. I will be addressing legal
    authorities related to the Army Corps of Engineers' regulation
    of surplus water and the role of States' rights.
        While there may be a number of policy-related questions
    that arise this afternoon, my testimony focuses on the Corps'
    legal authorities. Separate form this testimony, CRS has
    provided a memorandum to the Subcommittee written by my
    colleague, Nicole Carter, that addresses many of the policy and
    process-related issues.
        The Supreme Court historically has held that the Corps'
    authority for projects in navigable waters derives from the
    Commerce Clause and the Federal Government's interest in
    promoting navigation throughout the Nation's waterways.
        In 1899, the Court explained that the States' control of
    the appropriation of their waters is subject to the superior
    power of the general government to secure the uninterrupted
    navigability of all the navigable streams within the limits of
    the United States.
        In the 1940 decision, the Court held that a State could not
    enjoin the Corps from constructing a dam or reservoir, even if
    the water impounded within the reservoir was controlled by the
    State because, in that case, the State's program for water
    development and conservation must bow before the superior power
    of Congress.
        But the Supreme Court also has a long history of cases
    recognizing that a State owns the navigable waters within its
    borders. When the United States was formed, the Supreme Court
    explained the people of each State became themselves sovereign,
    and in that character hold the absolute right to all their
    navigable waters and the soils under them for their own common
    use, subject only to the rights since surrendered by the
    Constitution to the general government. Under the
    constitutional equal footing doctrine, States that later joined
    the Union acquired the same rights granted to the original
    States and, therefore, also acquired ownership of their States'
    navigable waters upon achieving statehood.
        When these two lines of cases are viewed together, there is
    a tension between the rights of States to use and regulate
    navigable waters within their borders and the right of the
    Federal Government to exercise the authority under the Commerce
    Clause. And this tension is not limited to high level
    constitutional principles; it also exists within the texts of
    the relevant authorizing statutes for the Army Corps of
    Engineers. The Flood Control Act of 1944 authorizes various
    Army Corps projects in navigable waters. It also authorizes the
    Corps to contract for surplus water that may be available at
    Federal reservoirs under the control of the Department of the
    Army.
        Even though the statutes grants authority to the Secretary
    of the Army as an exercise of Federal power, it also provides
    that it is 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.
        Similarly, the Water Supply Act of 1958 is an exercise of
    Federal power that authorizes certain Corps action with regard
    to Federal reservoirs, but it provides that Congress recognizes
    that the primary responsibilities of the States and local
    interests in developing water supplies for domestic, municipal,
    industrial, and other purposes.
        This tension created by the interplay between Federal power
    derived from the Commerce Clause and States' sovereign right to
    navigable waters has manifested itself in discussion over the
    Corps' 2016 Notice of Proposed Rulemaking on the use of U.S.
    Army Corps of Engineers reservoir projects for domestic,
    municipal, and industrial water supply.
        Some have called into question whether the proposed rule is
    a valid exercise of Federal constitutional and statutory
    authority. While some aspects of the Corps authority on which
    the proposed rule is based have been the subject of litigation,
    such as the division of authority between the Corps and the
    Department of the Interior under the 1944 Flood Control Act, it
    does not appear that the provision in question has been
    litigated with respect to potential interference with State
    ownership of water.
        To date, the Supreme Court has not clearly defined the
    Corps' obligation with respect to States' rights over surplus
    water that is held in or passes through the Corps' reservoirs.
        Thank you, and I will be happy to answer questions at the
    appropriate time.
        [The prepared statement of Mr. Mulligan follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Rounds. Mr. Mulligan, thank you very much for being
    here and thank you for your participation today.
        We all each have now 5 minutes in which to work through our
    questions. There are just a couple of us here. We will take our
    time, work our way through this. We most certainly appreciate
    all of your participation.
        Let me begin with some of the concerns that we have tried
    to express here and try to flush them out just a little bit.
    Let me begin with Secretary Pirner.
        As a public service, you have been involved in this process
    for more than 20 years, I would say. I won't say how much
    longer than 20 years, but more than 20 years. You probably are
    uniquely situated to have seen the ongoing processes involved
    in this discussion throughout several decades.
        From a quality of life standpoint, can you speak to the
    impact this proposed rule could have on not just South Dakota,
    but all of rural America?
        Mr. Pirner. Yes, sir, Senator Rounds. The Missouri River
    into South Dakota, as I mentioned during my testimony, is the
    largest, most reliable surface water supply in South Dakota.
    South Dakota is a relatively arid State. Our other surface
    water supplies are seasonal, especially on the eastern side of
    the State. At times we go to zero flow in the fall. Groundwater
    is basically our remaining water supply, and there we don't
    have it everywhere, and where we do have it a lot of times the
    quality is poor. So, the Missouri River is a high quality,
    very, very important water supply to the State.
        You talked about quality of life. It is not only a
    recreational use; it is also a major water supply use. By now,
    we have 126, out of our 464, drinking water systems that are
    regulated under the Safe Drinking Water Act that get their
    water from the Missouri River. That is 27 percent of our water
    systems.
        Senator Rounds. Let me just stop you right there very
    quickly. Can you share a little bit about, most recently, the
    challenges that some of the drinking water systems that even
    are currently in effect have had accessing to repair or upgrade
    their systems with even getting access over the Corps' take
    land, which is the land which surrounds the reservoir system
    that they have purchased in order for the water to rise and
    fall? They have a take line, it is basically Federal Government
    property that they control, but in order to get to the water
    you cross Corps land in 90 percent of South Dakota.
        Can you talk a little bit about the way that they have
    treated some of our water systems, trying to even upgrade
    systems that are even already right there?
        Mr. Pirner. Yes, Senator. I think you are talking about the
    Randall Rural Water System.
        Senator Rounds. I am.
        Mr. Pirner. Which has a surface water intake in the
    Missouri River. They want to do some upgrade and they really
    have been unable to at this point because of this access issue.
    No easement. There is an existing line, there is an existing
    uptake. They just simply want to upgrade and make better their
    system, but to date they have been refused access to even do
    that.
        Senator Rounds. This was more than just one or 2 months?
        Mr. Pirner. I believe so, yes, sir.
        Senator Rounds. Like perhaps years?
        Mr. Pirner. I don't know the exact time. All I know is they
    are still waiting.
        Senator Rounds. How about the city of Pierre?
        Mr. Pirner. The city of Pierre has an interesting little
    project. Again, the Missouri River borders the city, the
    capital of South Dakota. The river is an important aspect, part
    of the whole city. I mean, again, it is there and people use
    the Missouri River extensively. The city was looking at cutting
    its water costs, plus the State government. The State campus is
    there as well. They were going to do a joint project, put in a
    pump station, irrigate the city's green space plus the entire
    State campus with water directly from the river, thereby saving
    time and money and costs.
        Senator Rounds. Watering the lawn.
        Mr. Pirner. Yes, sir. That would be correct. Or irrigation.
    We tried to say that it was irrigation, but so far that hasn't
    worked yet either.
        But, anyway, again, we issued them a water right to do
    that, I think 2 years ago.
        Senator Rounds. Within the existing flow of the Missouri
    River.
        Mr. Pirner. Exactly. And about 2 years ago, I think it was.
    At this point in time the Corps has been unresponsive to
    granting an easement across the take line for them to install
    that pump station.
        Senator Rounds. So, do you think, based on that, if we had
    the Corps with their projects in place, with this approach
    right now, could we have even begun to develop the State of
    South Dakota along the Missouri River, basically 500 miles?
    Under these conditions, could we have even access to begin
    creating towns along the Missouri River based upon the current
    policy that the Corps has?
        Mr. Pirner. No, sir, I don't believe so. We have towns both
    near and far that are relying on the Missouri River today for
    their water supply source. I talked about 27 percent of the
    water systems. That equates to over 22 percent of our entire
    population is drinking Missouri River water. If you add in
    Lewis and Clark Regional Water System, which relies on wells
    alongside the river, that is about another 225,000 people. They
    don't have a surface water intake, but their wells are
    certainly directly influenced by the flow in the Missouri
    River.
        So, all of those systems are using water that we believe
    have been allocated to them by the State through our existing
    water rights process. Under this system that is being proposed,
    either the Corps would have to approve, basically would have
    veto power over any State water right that we would issue, or
    would have to find some mechanism to try to fit those systems
    into their new policy.
        Senator Rounds. On the other hand, I want to bring this to
    bear. What we are actually getting at here, if I understand it
    correctly, since they basically have purchased land along the
    river in order to create the mainstem dam of the Missouri
    River, the mainstem dam system, the Pick Sloan project, they
    have purchased land and now, in order to get access to the
    water, you have to have an easement to get across their land.
        There are a couple of miles there in which we have natural
    flows, and which the Corps does not have that particular land
    right, so in those particular cases, since they are in the
    normal flow area of the Missouri, and we probably run 30 to
    35,000 cubic foot per second, average year-in, year-out,
    through the Missouri River system, someone could, if they
    didn't have to cross Corps land, go directly back in with an
    appropriate State water right or approval, access that water.
    But since the Corps has this access land along it, they have
    prohibited, since 2008, development along the river because
    they were not issuing access across the land, which they had to
    the water, which the State has and is identifying as their
    responsibility to determine water rights for.
        Mr. Pirner. Yes, sir, that is correct.
        Senator Rounds. Thank you.
        Senator Booker.
        Senator Booker. Keep going.
        Senator Rounds. I would. I think this is the crux of the
    issue, and I am just curious.
        Mr. Mulligan, I have a question for you. I appreciated your
    layout of the history on this. Under the equal footings, all
    States now come in to our Country with equal footings with the
    other States that were there to begin with. The original 13
    States making up the original United States clearly protected
    their water sources. They clearly issue water rights today.
        In your research, have you found other areas where the
    Corps is restricting access to free-flowing rivers or to other
    reservoirs in which they may have an interest, or are they
    prohibiting the access to those in other States other than on
    the Missouri River at this time? Can you share with us a little
    bit about their history of trying to do that?
        Mr. Mulligan. Thank you, Mr. Chairman. The proposed rule
    here would be a rule of nationwide application, and the changes
    in the Corps' policy over the last decade or so are also, by
    and large, the ones that have been referenced today are of
    nationwide application, so these aren't changes or proposed
    changes that are just being applied in a certain area of the
    Country. So, just in terms of the Corps' policy, this is
    something that is not localized.
        In terms of the equal footing doctrine, I think that it has
    been correctly described. When a new State joined the Union, it
    entered with the same rights, the same water rights as the
    original 13 colonies. In doing research, the Corps has sort of
    analyzed that, and in looking to the water rights of those
    original 13 colonies, the Supreme Court has said, in certain
    circumstances, the Federal Government through the Commerce
    Clause power may exercise rights over those original 13
    colonies, over their water rights.
        So, when a new State comes in and steps into equal footing,
    it also sometimes gives way to the Federal Government's
    Commerce Clause powers.
        Senator Rounds. I am just curious. In the Flood Control Act
    of 1944, which is the authorizing act which created the
    mainstem dams on the Missouri River, there was a discussion at
    that time, and when the law passed Congress, was there specific
    mention of the States' water rights which were there? Could you
    kind of go through that again with us, a little bit about the
    folks who wrote the law, the 1944 Act, could you share a little
    bit?
        I know you mentioned it, I believe, and I will come to Mr.
    Scott next, but can you go through and share with us a little
    bit about what the intent was, or at least what was stated
    within that law with regard to the Federal Government utilizing
    those water resources, or controlling them?
        Mr. Mulligan. Thank you, Senator. You are correct that in
    the Flood Control Act of 1944 there was discussion in the
    congressional Record in terms of the debate over how to
    effectuate the Pick Sloan project and how to incorporate that
    project into legislation. There is debate over how to protect,
    at best, recognize and protect State rights. That debate
    manifests itself in Section 1, to a certain degree in Section 1
    of the Flood Control Act, which has a statement of
    congressional purpose that I read in my opening testimony that
    expressly recognizes Congress's position to recognize the
    primacy of State rights to control navigable waters within
    their borders.
        Senator Rounds. The primacy of the States' rights to
    control the water within their borders on these navigable
    waterways.
        Mr. Mulligan. I am not quoting now, I don't have the
    language in front of me, but a general statement to that
    effect.
        Senator Rounds. I think what I am getting at is the gist is
    the folks who wrote that law to create the dam system appears
    to me to clearly have tried to delineate and to reestablish,
    for anybody that wanted to read it, that they were recognizing
    the States' rights to access that free flow through that river
    system. Is there anything that gives you pause to that attempt?
        Mr. Mulligan. Thank you for the question, Senator. There
    was a discussion of protecting States' rights. In terms of a
    discussion and use of the term natural flow, that is not
    something that you see in relationship to the Flood Control Act
    and it is not sort of a legal term of art that you see
    developed doctrinally. So, while there is a high level
    discussion, the term natural flow, trying to separate natural
    flow from surplus waters is not prominent in the record.
        Senator Rounds. Thank you.
        Mr. Scott, same question, basically. Within the 1944 Flood
    Control Act, or the other acts that have been established since
    then, it would appear to me that Congress has worked very hard
    to try to make it clear that the States still maintained their
    responsibility and authority over water rights within their
    States. Can you elaborate a little bit on what you have been
    able to determine in your research?
        Mr. Scott. Thank you, Senator. We feel that the 1944 Flood
    Control Act, as well as several Federal statutes, recognize
    that State authority and try to preserve it. We feel that while
    surplus water is an ambiguous term in that statutory language
    that the Corp does have authority to interpret, they should be
    guided by that clear intent of Congress to preserve State
    authority over water resources and allocation.
        Senator Rounds. Thank you.
        Secretary Pirner, same question. With regard to the
    research that you have done and the work that has been decided
    within the activities that you have been involved with, court
    cases and others, and the research with regard to the critical
    language found within the 1944 Act, the other pertinent acts,
    do you find where there was clear evidence that Congress was
    doing its best to protect the interests of the States in
    determining water uses along these rivers, regardless of
    whether or not the Corps had access rights?
        Mr. Pirner. Yes, Senator. If you look at Section 1, that
    was talked about, of the 1944 Flood Control Act, it states, and
    I will quote, I am using a paraphrase here, but this is a
    quote: ``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.'' So, we believe that that language clearly preserves
    the States' rights that have been talked about again. That was,
    again, Section 1 of the 1944 Flood Control Act.
        I think the other issue to consider, and we have touched
    upon it very briefly, is the upper basin States paid a heavy
    price for those reservoirs. You talked about losing 500,000
    acres of our best fertile bottom and, never to be seen again.
    We were supposed to get irrigation as part of the payment for
    the permanent loss of those lands, but that has never occurred.
        But I think if you take that into account, clearly, I don't
    think Congress would have passed the 1944 Flood Control Act by
    giving the Federal Government total control, then, over
    essentially all of the flow in the Missouri River that flows
    through South Dakota.
        Senator Rounds. Would it be fair to say that the
    inflexibility that happens at the Federal level when you try to
    do a one-size-fits-all, would it have been manifested in 2011?
    In 2011 we had a flood on the Missouri River. It occurred
    because of substantial rain, heavy snowfall, and a delay, in my
    opinion, in the release of water trying to save downstream
    States, and rightfully so, trying to help folks by holding as
    much water as possible in the upper mainstem dams.
        We ended up having water flows through the Missouri River
    system closing in on 160,000 cubic feet per second, which rose
    probably three to four feet above flood stages throughout the
    entire system. The damage was significant.
        And the reason why I asked the question, even during this
    time in which we had flood waters flowing through the area,
    there was a request to utilize a limited amount of water out of
    the mainstem dams, which at this point were over flood stage
    and we had nearly a free-flowing Missouri River.
        Secretary Pirner, can you share what the response from the
    Corps was, once again during a time of flooding in which we
    didn't have enough capacity to even hold the water, as to how
    inflexible the ability to get permission to even access, to get
    a limited amount of water out of the Corps reservoirs? Just for
    emphasis.
        Mr. Pirner. Yes, Senator. Again, the Corps would not grant
    that access. And when you talk about a limited amount of water,
    I would call it miniscule. I mean, it would not have helped the
    flood. But here we are in flood stage. We are spending tons and
    tons of Federal, State, and local moneys building levees
    alongside the river, trying to protect the communities that
    were in harm's way, and to deny access to the river for some
    pumping for a contractor who wanted to use it for a
    construction project just didn't make any sense.
        Senator Rounds. Thank you.
        Senator Booker. You have been very patient. Thank you, sir.
        Senator Booker. Sir, I, first of all, want to thank the
    witnesses. A lot of people don't understand how important it is
    for folks like you to come down here and engage in this
    discussion and dialog on issues that are actually really,
    really important. One of my favorite authors is a woman named
    Alice Walker, and she says the real revolutionaries are always
    concerned with the least glamourous stuff; raising a child's
    reading level, filling out food stamp forms because folks have
    to eat, revolution or not. The real revolutionaries are always
    close enough to the people to be there for them when they are
    needed.
        So it is really an honor to sit next to a man who was a
    former Governor, who is also now a Senator, who is not just
    about the large issues we are all seeing on TV, but really in
    the weeds on issues that are really important to the people in
    his communities, and something as important as this.
        And I am grateful for you all taking some time out,
    traveling long distances to come down here.
        The last thing I will say, Mr. Chairman, is that, as a New
    Jersey Senator, I know that my Governor can't get into the
    Western Governors' Association, but he is from western New
    Jersey. I don't know if that counts.
        But, in many ways, as different as our topography or our
    Nation is, we actually do share common values and common
    ideals, and I heard that those were expressed today by a lot of
    people, about local folks often know how to make the best
    decisions for what is important to them, so it was refreshing.
    I learned a lot in this hearing. I did not know what surplus
    water was, sir, before I did my reading last night, and I just
    want to say what an honor it is to sit next to you and listen
    to you talk about such an important issue for your community.
        Senator Rounds. Thank you, Senator. Look, let me share with
    you. It has been a very busy day and I think most of us have
    had 25 to 28 different events, including Senator Booker. He has
    taken time to come in so that we can do this. We don't do a
    hearing without having both sides represented on these, and
    Senator Booker is taking time out of his very busy day to come
    in, recognizing that, for many of us, this is a Missouri River
    issue, as an example.
        So, Senator, I want to thank you for the time that you have
    taken out of a very busy schedule to come and participate so
    that we can share this with the rest of the Country, and I
    thank you for that, sir.
        At this time I would ask unanimous consent to not only
    include all of your statements for the record, but I would also
    ask unanimous consent that four letters from Governor Dauggaard
    to the Army Corps be submitted and accepted; a letter from
    Governor Dauggaard to the South Dakota congressional
    Delegation; a letter from Governor Dauggaard, Senator Thune,
    Representative Noem, and myself to President Trump; a letter
    from the South Dakota Department of Game, Fish, and Parks to
    the Army Corps; a letter from the South Dakota Association of
    Rural Water Systems to this subcommittee; a letter from the
    Western States Water Council to the Army Corps; a letter from
    the National Water Supply Alliance to this subcommittee.
        Without objection, so ordered.
        [The referenced information follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Senator Rounds. Once again, I want to thank all of you for
    coming and participating in this, and I hope that this helps to
    bring some focus on what I think is a true injustice that has
    been started and that we would like to see eliminated as
    quickly as possible so that normal people can get access to
    drinking water once again, which is a lot of what this is all
    about.
        So once again I would like to thank our witnesses for
    taking the time to be with us today, and I would also like to
    thank my colleague who attended this hearing, and also for your
    thoughts and your questions.
        The record will be open for 2 weeks, which brings us up to
    Wednesday, June 27th. This hearing is adjourned. Thank you.
        [Whereupon, at 3:59 a.m. the committee was adjourned.]
        [Additional material submitted for the record follows.]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

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