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Sen. John Hoeven, Published May 21 2013

Letter: Message to corps: Back off

This week, we scored a major victory for the people who live and work throughout the Missouri River basin. The U.S. Senate passed the States’ Water Rights Act, legislation I introduced and attached to the Water Resources Development Act to bar the U.S. Army Corps of Engineers from charging a storage fee for water drawn from the Missouri River reservoirs.

The legislation was prompted by a 2010 corps decision to restrict access to Missouri River reservoirs and impose an unprecedented storage fee for drawing water from them. In the more than 60 years since the construction of the dams, the corps has never charged a fee, nor should they. Some of the basin states relinquished prime lands to create dams and reservoirs from Fort Peck in Montana, through Garrison Dam in North Dakota, to Gavins Point in South Dakota to prevent flooding. Our states never ceded the right to use Missouri River water for municipal and industrial water supplies, and never imagined the corps would charge us a fee for our own water.

The States’ Water Rights Act that I introduced and recruited other basin senators to support affirms that charging fees would violate a state’s right to the waters that naturally flow through its boundaries, rights which are recognized by the federal government. Further, charging fees would violate provisions of the 1944 Flood Control Act, which provides protection for water resources in western states. Charging fees would, in effect, penalize Montana, North Dakota, South Dakota and Nebraska by essentially charging a tax for water that would be freely available in the absence of the corps’ dams and reservoirs.

The WRDA bill is must-pass legislation. Every state in America counts on it to support key water infrastructure projects, so there is a strong impetus to pass it. That made it the ideal vehicle for legislative language that would put to rest, once and for all, any notion that the corps could impose an unprecedented fee for water on homeowners, businesses, tribes and municipalities anywhere in the basin. For the very same reason, we worked hard to get authorization for the Fargo-Moorhead flood protection project in the WRDA bill. Once a measure is in must-pass legislation, it’s hard to remove it.

We knew barring the storage fees would be a heavy lift, and it was. First, we had to persuade the Congressional Budget Office that the $10 million per year they estimated the cost to be based on lost revenues was unjustified. The idea was absurd, not only because the fees represent revenues that the corps has never had, but also because the affected states have pledged to lodge a costly suit against the corps.

Secondly, we had to explain to colleagues from other states that the corps’ proposal was fundamentally unfair, a case of adding insult to injury. After flooding more than half a million acres of prime bottomland, dispossessing our Native American tribes, and failing to follow through on promises of irrigation and other beneficial uses, the corps was now proposing to charge us a so-called “storage fee” for access to our own water.

North Dakota has fought long and hard to preserve the integrity of the Missouri River and the rights of our people to use it to support their homes and their livelihoods. We cannot allow the federal government to charge us for water that historically, legally and ethically belongs to the citizens and tribes of North Dakota.

Finally, I asked several of my colleagues to cosponsor the legislation and I want to thank them for doing so. That includes Sens. John Thune, R-S.D., Heidi Heitkamp, D-N.D., Tim Johnson, D-S.D., and Max Baucus, D-Mont.

The legislation I introduced and the Senate passed as part of the WRDA bill now goes to our colleagues in the House of Representatives. I believe they will see the common-sense logic of our legislation and uphold in principle and in law the States’ Water Rights Act.

Hoeven, R-N.D., is in his first term in the U.S. Senate.