OPINION: Corps wants to be your ‘water landlord’

• David Ganje

David Ganje

Talk about it

As Ronald Reagan was wont to say, “There you go again.” Both liberals and conservatives in South Dakota should be alarmed at what the federal government wants to “take” this time around. The Army Corps of Engineers wishes to assert itself further into the state’s water rights.

South Dakotans and their political leaders should take heed. These new rules would be the first time in history that a federal agency would be charging fees for surplus water permits for the use of Missouri River water. The corps in its proposed new rules suggests that as an agency it would be “managing and permitting” the right of access to surplus water sought by municipalities, private concerns and individuals.

This proposed action is an unfortunate reduction of the state’s remaining property and natural resource rights. Presently on Lake Sakakawea in North Dakota there is significant unpermitted access to water used by the demands of oil and gas development. In an attempt to address this problem, the corps has created a proposed new process for permitting and using surplus water in the Missouri River. The corp’s proposed action should be of concern to all, not just those many communities in the state which would be affected.

The corps has proposed to start a permitting process and to assess permit fees for the use of surplus water by way of a new “water reallocation policy.” By law, the corps must first honor and not prejudice “existing lawful uses of such water.” The corps in its new study has determined the existing demand and the amount of “surplus water” available for each dam along the Missouri River dam system. The state faces several problems arising from this proposed action because: 1) The amount of surplus water to be managed by the corps is based upon historical use of water with minimal consideration of any substantial change in the demand for water; and 2) The allocated surplus water would not be authorized for irrigation purposes.

A substantial change in Missouri River water demand is possible. One only need consider that 61 percent of the state is in an extreme drought. And one should further consider that the current water withdrawal by the oil and gas industry in North Dakota is at 100,000 acre feet of (unpermitted) water per year used for oil development, to understand that a change in water demand is more probable than conjectural.

The corps’ new and untried process would allow the agency to oversee surplus water permitting as regards South Dakota communities or private concerns, all of which may need access to Missouri river water. The corps states in the rulemaking study that it would manage the program by becoming the “water landlord” of surplus water along the various dams in the Missouri. This proposed action is an unprecedented accretion of authority over water rights. The new proposed policy is not consistent with the corps’ past practices. The fees obtained from the federal surplus water permits would not flow back to the states. This new permitting process would also lay additional burdens on various South Dakota reservations’ rights and tribes’ access to Missouri River water.

In South Dakota, all groundwater and surface water is the property of the people of the state other than that water on tribal lands. South Dakota has general management and jurisdiction over the natural flow of water in the Missouri River. The state has authority to allocate the natural flow of water in the Missouri for beneficial uses. Such special federal water permits have not existed in the past and are a new, untested method of expanding the corps’ general authority granted under the 1944 Flood Control Act. The future needs of the state to the natural flow of the Missouri River as well as the state’s general water rights have not been adequately addressed by the corps’ proposed action.

David Ganje is a natural resources and commercial law attorney with Ganje Law Offices in Rapid City.

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