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OPINION: A wrongful taking

  As Mark Twain said, whiskey is for drinking and water is for fighting.

The U.S. Army Corps of Engineers recently started a rule-making process in an effort to manage and "sell" surplus water from the Missouri River reservoirs. The process is an attempt to quantify so-called surplus river water. The Corps' initial report states, "some amount of surplus water can be made available for a period of up to 10 years for municipal and industrial use without adversely affecting existing lawful uses of the water."

This effort to define, quantify and sell surplus water is unprecedented. The proposed action by the Corps would both restrict access and charge a fee for access to surplus river water. The method used by the Corps to define surplus water is arbitrary. Two important developments have occurred concerning this project: 1) the Corps has extended the public comment period on the project; and 2) Congress has started to act.

The Corps' action should be of great concern to the state of South Dakota, its people, businesses and the Indian tribes, all of whom have vested legal rights to Missouri River water as a natural resource. The natural flows of water are not subject to the Corps' control. The natural flow of a river refers to the flow of water in the river absent the reservoirs.

South Dakota and North Dakota have a legally established right to manage Missouri River water. The Corps' action does not correctly address the distinction between water supply that is available to the states (natural flow) and water supply from storage, nor does it adequately address South Dakota tribes' rights to water. A state's management of natural flows is exempted by the Flood Control Act. Indian tribes and the state of South Dakota have the right to use Missouri River water for various purposes, even though it may not now be so used. The Missouri River flows through or is adjacent to several Indian reservations and also supplies water to several tribes in the region, such as the Oglala Sioux Tribe and the Rosebud Sioux Tribe, through water projects.

The various South Dakota Indian tribes' water rights have also not been properly taken into account. The tribes have long established "reserved water rights." The tribes' reserved rights predate the Flood Control Act but were not addressed in the Flood Control Act. The effort by the Corps to create a new definition of "surplus water" arguably amounts to a wrongful taking, as well as a misunderstanding of tribal and states' rights to river water.

In justifying its proposed action, the Corps relies on the Flood Control Act. The Corps fails to take into account both the legislative intent and the language of the Flood Control Act. The act authorizes the Corps to make contracts with parties for domestic and industrial uses of "surplus water" at reservoirs, provided that no contracts for such water shall adversely affect then-existing lawful uses of such water.

The Flood Control Act states " ... it is hereby declared to be 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 ... " The Corps is not following this policy.

Another important issue in the surplus water project is not addressed by the Corps. The authority under which the Corps proceeds does not include "irrigation uses" of the so-called surplus water. The Corps "surplus water" project, if adopted, would allow the Corps to manage the designated water for domestic and industrial purposes, but the Corps would have no legal authority to "manage" the surplus water for irrigation purposes. This is a bureaucratic nightmare.

The Corps should be mindful of the 10th Amendment to the U.S. Constitution, which states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." The state constitutions of both North Dakota and South Dakota provide that water streams, natural watercourses, groundwater and surface water are forever property of the people of the state. There can be no restriction of access to the states' water rights from natural flows.

Efforts are under way in Congress to prevent the Corps from completing this unwise endeavor. The U.S. Senate passed the Water Resources Development Act of 2013 (WDRA) in May of this year. This legislation as amended specifically addresses the concerns of states that fear an infringement of state water rights by the Corps. The amendment states "No fee for surplus water shall be charged under a contract for surplus water if the contract is for surplus water stored on the Missouri River."

Rep. Kristi Noem supports the reigning in of the Corps on this project. It is not certain, however, that the House will adopt the same position as the Senate on the protection of state water rights. That is a disappointment.

— David L. Ganje, of Ganje LawOffices, is an attorney in Rapid Citywho practices commercial law and natural resources law.

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