Water Resources Development Act of 2013 - Continued

Floor Speech

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Mr. HOEVEN. Mr. President, I rise to speak on legislation in regard to surplus water fees. I call it the States Water Rights Act, the States water rights legislation, and I introduced this legislation as an amendment to the Water Resources Development Act. Essentially what it does is it would prevent the Corps of Engineers from unlawfully and unfairly imposing water usage fees on the Missouri River States. Joining me in this bipartisan legislation is Senator John Thune of South Dakota, Senator Heidi Heitkamp of North Dakota, Senator Max Baucus of Montana, and also Senator Tim Johnson of South Dakota. It is bipartisan legislation. In fact, I expect Senator Thune will be joining me here on the floor very shortly, and also Senator Heitkamp, so we can engage in a colloquy in regard to the legislation.

The Missouri River, of course, flows through the State of North Dakota and the other Missouri River States. We have seven States the Missouri River flows through. In 1944, through the Pick-Sloan Act, waters in those States were dammed to create large-scale reservoirs. There are six mainstream reservoirs. Of course the primary purpose for the dams and reservoirs was to provide flood protection downstream, which we have been doing now for more than 50 years--actually, over 60 years.

At the same time, just as we are providing that flood protection with these reservoirs, at the same time the upper basin States, States throughout the basin, have withdrawn water from those reservoirs for a whole variety of uses--municipalities, tribes, business and industrial--the whole gamut of uses. In all that time, more than 60 years, the Corps of Engineers has never charged the respective States--Montana, North Dakota, South Dakota, Nebraska--any of them--has not charged them for using the water. That makes sense because if they draw the water out of the river--I mean every one of the States has water rights. Tribes have water rights. If they draw the water out of the river, of course, there is no charge.

Likewise, because the States gave up the land for flood protection in order to create those reservoirs, the corps has never charged for drawing water out of the reservoirs either.

That has changed now. Now the corps is saying we are undertaking a study and in our study we are going to look and decide whether we are going to charge a fee if you take water out of the reservoir; even though we never have, now we think maybe we are going to charge a fee.

This amendment blocks that. It says you can't do that. The States have water rights. Just as if you take it out of the river you can't charge us for that water, you certainly can't flood our land and then charge us for it. It doesn't make any sense.

Furthermore, because States have water rights, they would never be able to do it. If in fact the corps were to proceed and impose those fees, we would sue them and we would win under the law because the respective States are entitled to those water rights. That makes this kind of an unusual situation.

We have put this legislation forward, frankly, to avoid the cost of litigation, the cost to the respective States and the cost to the Federal Government. So the reality is without this legislation we are offering, it would actually cost the Federal Government money because they would have to undertake litigation against the States to impose fees on the States in violation of their water rights which are well established at law. This amendment, in fact, in actuality saves the Federal Government money.

But the CBO, under their scoring regime, says no, wait a minute. Somehow we are going to look beyond that. I guess they would pretend that wouldn't really happen. So we are going to assign a cost to this legislation because the corps might get some fees down the road somewhere; in spite of all these things, they might get a fee. So they have assigned a $5 million cost to the legislation over the 10-year scoring window; $5 million over the 10-year scoring window.

We have managed to address that by saying no, we have also added--in addition to the fact that under this legislation the corps can't impose the fees, we have also said you have to find $5 million in savings over the next 10 years out of your operating budget. Since just their operations alone are $2 billion a year, obviously that would be a very simple matter. The fact is it is, frankly, a technicality anyway because they are offsetting money they are never going to get so there is no cost to it. But from an accounting standpoint we do that so the CBO does not assign any score to this legislation.

That is kind of some of the nuts and bolts of the legislation. But the key is this: This is about States that have given up fertile farmland, hundreds of thousands of acres, in order to provide flood protection for other States farther downstream. They were able to not only use the land but they were able to draw water from the river as they wanted to without being charged. So here comes the corps and says now that we have flooded your land, now that you have provided that flood protection, oh, golly, we are going to charge you for flooding your land. We are going to charge small towns, we are going to charge tribes, we are going to charge business and industries, farmers--whomever.

It absolutely makes no sense. That is what this act does. It addresses that and makes sure they do not impose those fees in clear violation of States' water rights. In fact, the legislation, even though scored by CBO as having no cost, will save not only the Federal Government money but the respective States money as well.

I am very pleased to note that my distinguished colleague from South Dakota, Senator John Thune, is here. I wish to ask if he, as cosponsor of this legislation, would express some of his thoughts as well.

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Mr. HOEVEN. I thank the distinguished Senator from South Dakota for joining me, and for his question. Of course, he is anticipating exactly what would happen. The States will initiate litigation against the corps if in fact the corps decides to impose a fee. They are undertaking a year-long study and at the end they are going to come back and say: Oh, they are not going to charge a fee. Or they are not going to impose a fee. If they do impose a fee, here is what it would be. At that point they would be sued by the States. In fact, in the case of North Dakota, the legislature has already set aside moneys to fund the lawsuit.

As when I was the Governor, the current Governor and the attorney general have already said very clearly they will commence litigation. It would be multistate litigation. As I said, they have already set aside funds.

That is the point I am making. We can talk about the CBO score--which we have now squared away so it doesn't score--the reality is we are saving both the Federal Government and the States money with this legislation because there will absolutely be litigation.

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Mr. HOEVEN. Mr. President, in response to the Senator's question, absolutely not. It doesn't change any of the authorized purposes for the reservoirs and for the system. This does not impact in any way any of the authorized uses for the mainstem dams, the mainstem breviaries or the Missouri River system.

I want to emphasize that because we have the seven Missouri River States, and sometimes we get the upstream and downstream interests. This does not change any of those authorized purposes or how they are utilized or how the respective States interact with them--or even the amount of water usage.

So to try to bring in any of the other issues which have typically been concerns for the Missouri River does not apply here. This is about whether the respective States--this is one where we can come together. This is upstream or downstream and whether any States will be charged for water that is rightfully theirs. That makes this very much a States rights issue about which all of the States should be concerned.

How can we allow Federal agencies to come in and simply impose a fee because they want to and then impose whatever fee they want? We will do a study and we will impose a fee of whatever size we determine we believe is appropriate.

It is a clear violation of States rights, and on a very important issue, water rights.

If I could, I want to also invite the good Senator from North Dakota, Ms. Heitkamp, to join us as well in this colloquy. She also brings expertise as the former attorney general in North Dakota and can certainly comment on the legal issues as well.

Before I do that, I will turn it over, Mr. President, to the Senator from South Dakota, who I think had another question and/or comment.

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Mr. HOEVEN. I thank the Senator from South Dakota for joining, and he is absolutely right. The cost to the States is significant. In actuality, the scoring number is reduced because the probability of them getting it is so remote. As I mentioned earlier, they are flying in the face of well-established water rights the States have. So once they assign the probability they would lend to it, obviously that reduces the amount that gets scored.

Once again, it shows they are trying to impose a fee where they have no right to do it, so it did create some scoring issue that it really never should. The fact is the litigation would far outweigh the score that CBO has put on it, both to the Federal Government and to the respective States. In the end there would be no fees because there is no right to assess those fees.

I think we have someone who as a former attorney general dealt, in fact, with this very type of issue during her tenure as attorney general. I turn to my colleague from North Dakota and ask that she comment on the legality of the issue as well as her thoughts in terms of the fairness and the States rights aspect, which truly makes this an issue our colleagues should join and support. This is exactly what could happen to them, and it could happen to their States.

I turn to Senator Heitkamp for her thoughts in that regard.

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Mr. HOEVEN. I wish to thank again my colleague for her comments in regard to the legal aspect; again, she brings a lot of direct experience working with this issue. So I thank her for her comments with regard to the legal aspect, but she makes another very important point. This isn't just about States rights; this would be a taking of tribal rights too.

I am going to turn to my colleague from South Dakota and ask him a question on this very same subject. But, in fact, in North Dakota, it is going to be one of our tribes that is most disenfranchised by this action of the corps. Because, again, we have made the point we can take water out of the river. We can continue to do that. They can't charge us for water coming from the river.

The other place they are trying to charge for water is out of the reservoir. But most of the reservoir in North Dakota is inside the tribe reservation, so the people who would be most dramatically impacted, in fact, would be Native Americans in our State.

I am going to turn to our colleague from South Dakota. I am guessing that is true in South Dakota as well.

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Mr. HOEVEN. Mr. President, with that, I wish to set aside the pending amendment and call up the Hoeven amendment No. 909.

I wish to close with a couple other thoughts. Senator Baucus from Montana wanted to join with us in the colloquy, but the timeline didn't work out. So I wished to express my appreciation for his support and sponsorship of this legislation as well.

I wish to again make the point that this isn't about using the water. Our respective States will still use the water. The issue is about being charged for it. That is a very important point, so that nobody tries to confuse this issue in order to try to get opposition to the issue. We will still use the water; it is just that we will be charged for it unfairly, except for the fact--as we said, this would be tied up in litigation creating a bunch of costs for the State and the Federal Government, so that wouldn't really happen. So what we are doing is solving a very important problem. It is one that all of the States need to be cognizant of, because if a Federal agency can come in and try to do it to one State, it can do it to any one of the States. This is a fundamental issue regarding States rights.

If any of our colleagues have questions or concerns about the amendment, I encourage them to come to us. We want to talk to them about it. We truly believe, if they understand the facts, they will be strongly supportive.

Again, I wish to turn to my colleague from South Dakota.

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