[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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               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:]
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    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.]
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