Water Resources Development Act of 2013 - Continued

Floor Speech

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Mr. THUNE. This is an issue that is important to both his State and my State for many reasons, not the least of which is we have basically flooded 1.6 million acres of prime bottom land, some of the richest agricultural land in our States, in order to prevent flooding downstream. Then of course there were also stated other various uses of the water that would be allowed for the States that were impacted when this occurred.

But I wonder if my colleague from North Dakota--he has already touched upon many of the reasons why this should not happen, but he is a former Governor of his State. I know our Governor and our attorney general have made it abundantly clear that if the corps moves forward, they intend to file a lawsuit and they will litigate this. As a former Governor, if the now-Senator from North Dakota could respond to how his State of North Dakota might act in the event this actually were implemented by the corps?

It strikes me at least that this is without precedent. This is something that--the Flood Control Act was passed in 1944 and the dams were built subsequent to that. For the past 50 years our States have had access to this water and it is something that is a State right. There is no legal or statutory--there is no historical precedent for doing this. I am wondering how the former Governor of North Dakota might view this as a Governor, as to what his action might be in the event the Corps of Engineers were to move forward with this. Because it certainly would impact a lot of the industrial users, water users in the State, businesses, tribes--a lot of folks are going to be impacted if the corps moves forward with this proposal. If the Senator from North Dakota might tell me as former Governor how he might view this and what he would intend to do and what our Governor and attorney general would intend to do in the event the corps moves forward.

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.

Mr. THUNE. Will the Senator yield for another question, if I might?

Mr. HOEVEN. I will.

Mr. THUNE. Our attorney general wrote a letter and said:

This proposal, whether disguised as a reallocation or surplus water, exceeds the Corps' regulatory authority and violates basic principles of federalism.

It went on to lay out the reasons why they, our State, would obviously enter into litigation if it comes to that, if it is necessary in order to protect the rights of South Dakotans to the water that is rightfully theirs.

I would be interested in knowing as well from the Senator from North Dakota if in fact, during the course of the last many years, his amendment would change anything, if his amendment would change anything that is happening today? In other words, today what happens if the State wants to use water in one of the mainstream dams--and there are six mainstream dams, one in Montana, a big one in North Dakota, and then we have four in South Dakota, all of which were created by the Flood Control Act or authorized. These were dams built to protect from flooding downstream and then also authorized various uses of that water.

I might point out what some of those uses are. They were to be for enhanced navigation, cheap hydro power, irrigation, programs to increase public recreation facilities, municipal-industrial water supplies, and fish and wildlife populations.

Those are some of the things that are stated that the water is to be used for.

The Senator's amendment, which would prevent the corps from charging for this water, as I understand it, doesn't change anything, the practice as it exists today, because a water user would request an easement from the corps, and then essentially the State would have to issue the water. That is my understanding of how it works today.

Does any of that change--if it is passed--as far as the amendment of the Senator from North Dakota?

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.

Mr. THUNE. Mr. President, I want to welcome our other colleague from North Dakota who also has experience as a litigator in protecting the interests of her State. Perhaps she could also comment on what actions the States might take if the corps moves forward.

I want to point out to my colleagues, and perhaps the Senator is already aware of this, but I am looking at some things that are proposed charges that the corps would make under this proposal, although I don't think they have stated explicitly what that might be. But it ends up being a significant amount.

In fact, over the Lewis and Clark leg, which is Gavins Point--or I should say, Lewis and Clark Dam--they are talking about $174 per acre foot of yield from Lewis and Clark Lake. We are talking about businesses, individuals, tribes, and industrial users having access to water they believe--and I think we all believe--is something that was promised to them when this legislation was passed way back in the 1940s.

We have essentially 70 years of precedent where it has been the case that the States have access and can rightfully use that water for those various purposes as authorized under the legislation. This would move away from that and start to impose these fees, which I think over time get to be quite excessive.

I appreciate the work that has been done by the Senator from North Dakota Mr. Hoeven in terms of trying to get the CBO to evaluate this in the proper context. For a while they were talking about the scoring impact that was much larger than many of us believed it would be. Again, it is a hypothetical situation. It is not happening today.

All the Senator is simply doing is saying we want to keep in place the rules of the game as they have applied to the mainstem dams for the past 50 years--70 years since the authorization in the legislation that created it, but also since the dams were built.

I guess I would say to my colleagues from North Dakota, I appreciate their good work, and I would simply reiterate--as a South Dakotan, downstream from North Dakota--that our States, and all the States in the upper basin, would be dramatically impacted by this because it would be a precedent that would be entirely new.

Literally, this is something we have not dealt with since we had the dams and the lakes in our States. Again, this would be at a tremendous sacrifice in terms of the amount of prime bottom land that was given up when the dams were built and the land was taken.

I now defer to the former attorney general of North Dakota, Senator Heitkamp, for some observations she might have with respect to that issue.

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Mr. THUNE. I would just say to both of my colleagues from North Dakota, that is an absolutely accurate observation.

If we look at who is impacted--and we have the Standing Rock Tribe that is partly in North Dakota and partly in South Dakota so it crosses the State border. We have the Cheyenne River Sioux Tribe, the Coal Creek Sioux Tribe, the Yankton Tribe. We have a whole bunch of reservations as we go right down that corridor of the Missouri River that would be profoundly impacted. As we mentioned earlier, when this land was given up, when the dams were built, this was a lot of not only private land but tribal-held land which they gave up. This would directly impact the access they would have to water that is rightfully theirs.

So in addition to the concerns our States have and our attorneys general have, we also have a lot of tribes that have a very vested interest in making sure this doesn't happen. That is why it is so important that our colleagues support the amendment of the Senator from North Dakota, because as was pointed out by Senator Heitkamp, this is precedent setting. If they can do this here, they may try and do it someplace else.

I also think--and the point was made by both of my colleagues--this is a very practical consideration. It will cost the Federal Government and our States a lot more than what they are saying this is going to achieve in terms of revenues when this goes to court. Both the States and the Federal Government will be locked up, I would suspect, in litigation for some time. The amount of revenues that would be raised by the fees that would be imposed under the various proposals that are being advanced by the corps simply would pale in comparison to the litigation costs that would be involved.

So that is a very practical consideration. I concur. I am not a lawyer, and I certainly am not a former attorney general or former Governor. I know both of my colleagues have experience with these issues. But I can tell my colleagues from talking with our Governor and our attorney general they are highly confident that legally this is a very open-and-shut situation and a case in which our State would prevail. So it seems sort of crazy in a way that we would even have to go down that trail, and I hope we can prevent it from happening by having our colleagues join us in support of this amendment.

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Mr. THUNE. One final point of clarification and perhaps the Senator from North Dakota can react and comment on this as well.

My understanding is, of course, that this doesn't have any impact on the master manual, the way in which the corps manages the reservoir. So the degree to which there might be concern about whether this is our water versus their water, which historically has plagued a lot of the discussions about the Missouri River--upstream-downstream interests. As the Senator from North Dakota pointed out, the water is going to get used. It is water that is either stored or used. I think it is a question of whether we are going to be charged, the users of that water are going to be charged, and that does, of course, create precedent. If that is something they can do here, the question is, What is the next State? Because this violates a principle of federalism, as pointed out by the attorney general of South Dakota in his letter to the Corps of Engineers.

But I wanted to say for the record, perhaps to those who are viewing this as an upstream-downstream battle, that is not the case. This does not affect the master manual, to my knowledge, and I ask the Senator from South Dakota to react to that as well.

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