Rounds Delivers Opening Statement at EPW Subcommittee Hearing on Surplus Water Rule

Rounds Delivers Opening Statement at EPW Subcommittee Hearing on Surplus Water Rule

WASHINGTON—U.S. Sen. Mike Rounds (R-S.D.), chairman of the Environment and Public Works (EPW) Subcommittee on Superfund, Waste Management and Regulatory Oversight, today delivered opening remarks at a hearing entitled “Oversight of the Army Corps’ Regulation of Surplus Water and the Role of States’ Rights.”

South Dakota Department of Energy and Natural Resources Secretary Steven Pirner’s testimony can be found here.

Rounds’ opening statement, as prepared for delivery:

 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 the 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 & 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 Daugaard, 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 construction of these dams.  

South Dakota’s citizens and tribal members were forced from their homes and communities.

No one doubts the benefits of multi-use Army Corps projects, but they need to be taken into the 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 the 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 a 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. 

Let me 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 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. 

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