Missouri River Natural Flows and the COE Allocation Study

1. Missouri River Natural Flows and the COE Allocation Study Todd Sando, P.E., State Engineer, State of North Dakota

2. The Issue: • After 66 years, the COE decided on their own to reinterpret the 1944 Flood Control Act. • Only those States where reservoirs were constructed are now being prevented from withdrawing any water and being forced into storage contracts – to access water permitted by the State that in our situation would be available without the reservoirs • The COE is ignoring the distinction between water supply that is forever available to the States (natural flow without the COE reservoirs) and water supply from storage (capture of floodwater).

3. The Result: • COE new found belief is all water flowing into the reservoirs on the Missouri River is theirs to allocate and sell – with no consideration of flows that would be available without storage • NOT consistent with State Water Laws relating to storage for water supply • NOT consistent with State Rights that waters flowing through the state are to forever remain the property of the state • NOT consistent with practices of other federal agencies that recognize western water laws such as the Bureau of Reclamation.

4. The Missouri River is not Lake Lanier… • Missouri River has significant natural flows year round • Missouri River has a blend of Prior Appropriation and Riparian water laws • Missouri River had significant impacts in permanent loss of lands from construction of the dams, that were to be offset with water supply supplementing the natural flows In an attempt for “consistency,” the COE is imposing solutions from the east coast - small reservoir - riparian water law - non-arid climate region, on the Missouri River.

5. Significant Natural Flows • Flows in the Dakotas are between 9 MAF during the drought in the 1930s and 38.3 MAF during the floods of 2011. • The Missouri River is not an intermittent stream where water supply is dependent on storage. • Missouri River has significantly larger natural flows when compared to other reservoirs constructed by the COE. • Missouri River Basin is not a small system as it covers 1/6th the land mass of the United States.

6. Missouri River System is Unique

7. Multiple Agencies • Comprehensive development of the Missouri River Basin identified in Section 9 of the Flood Control Act split the development between Reclamation and the COE plans. • The COE was assigned primarily responsibility for flood control and navigation releases, and Reclamation responsibility for water development projects including diversion of stored water into the Dakotas.

8. Significant Impacts in Permanent Loss of Lands • The benefits of water development from storage for the Dakotas including irrigation and drinking water supply were intended to offset the permanent impact to North Dakota in the loss of 550,000 acres of land inundated by Lake Sakakawea and Oahe. • Impacts were in Montana, North Dakota, and South Dakota from lands lost to the permanent flood of lands under Fort Peck, Lake Sakakawea, Lake Oahe, Big Bend, Fort Randall, and Gavins Point.

9. COE focusing new impacts only on those closest to the Reservoirs • Now, only those closest to the reservoir, who were impacted by the construction of the dams, are being wrongly denied access to the States’ water. • No easements have been granted since 2010, which is blocking access to 190 miles of river along Sakakawea and 70 miles along Oahe in ND. • COE is requiring storage contracts and payment to access natural flows that were available prior to the construction of the dams, and that remain forever the property of the state and available for use under State appropriation laws.

10. Guidance Letter No. 26 • May 2010, COE halted access to Lakes Sakakawea and Oahe. • Guidance Letter No. 26 (COE’ 2008 Real Estate Policy) • “[N]o easement that supports any type of water supply agreement will be executed prior to the water supply agreement being executed.”

11. Result - Blocked Access

14. COE solely focused on Section 6 of the Flood Control Act • The Secretary of War is authorized to make contracts with States, municipalities, private concerns, or individuals, at such prices and on such terms as he may deem reasonable, for domestic and industrial uses for surplus water that may be available at any reservoir under the control of the War Department:Provided, That no contracts for such water shall adversely affect then existing lawful uses of such water…

15. There is more to the Flood Control Act than Section 6 • Section 1 of the Flood Control Act of 1944 • ...it is hereby declared to be the 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…

16. There is more to the Flood Control Act than Section 6 • Section 9 (c) of the Flood Control Act of 1944, as the entire section is dedicated to the Missouri River!!! • “Subject to the basin-wide findings and recommendations regarding the benefits, the allocations of cost and the repayment by water users, made in the House and Senate documents, the reclamation and power developments to be undertaken by the Secretary of Interior under said plans shall be governed by the Federal Reclamation Laws…”

17. Missouri River Mainstem System Storage Zones and Allocations However, the Carryover Multiple Use Storage Capacity has never been allocated to the various uses (municipal, industrial, recreation, etc.) in any of the Mainstem Missouri Reservoirs.

18. Recognition of Natural Flows and Authorized Purposes prior to Surplus Storage

19. Problems! • Since there has been no allocation among uses, no determination can be made regarding the amount of surplus storage available to be sold under a water supply agreement. • The States’ use of natural flows were an existing lawful use prior to the Flood Control Act of 1944, and therefore protected by Section 6 of the Flood Control Act. • Since the COE believes water storage contracts are required for all withdrawals within the reservoir boundaries, they have stopped processing all easements with the excuse that storage contracts are required.

20. More Problems! • Since there has never been an allocation of storage among uses in Missouri River mainstem dams, the COE cannot reallocate what has never been allocated. • The COE has indicated they have control over allocation of all water that enters the reservoir. • COE is overstepping their authority by blocking access to natural flows that would be available in the absence of the dams.

21. ND SWC Example Hydrograph to Understand Allocation of Storage

22. ND SWC Example Hydrograph to Understand Allocation of Storage Dams Capture High flows to Release Later

23. ND SWC Example Hydrograph to Understand Allocation of Storage

24. “As you explained during our meetings on this subject, it is not clear that withdrawals do benefit from the storage pool of Lake Sakakawea.” “Because of this uncertainty, the Corps of Engineers has embarked on a study to determine yield thresholds for each of the main stem Missouri River reservoirs at which reliable water supplies would require storage.” “Unfortunately, since the study described above involves complex issues and requires extensive coordination with State and local officials, we do not expect it to be completed prior to the middle of 1987. Because some needs must be met much sooner than that date, we are actively seeking an interim solution within existing authorities that will allow withdrawals to begin immediately at no cost.” 1985 Letter from COE

25. COE Current Solution • Focus solely on Section 6 of Flood Control Act and the 1958 Water Supply Act • Ignore all other relevant information and sections of the Flood Control Act as amended. • Ignore the Dakota Water Resources Act of 2000, that amended the 1944 Act, and states that for municipal, rural, and industrial water supply in ND, the costs incurred by the COE prior to 2000 are non-reimbursable.

26. COE Current Solution • Ignore the 1958 COE Cost Allocation Study that stated water supply within the natural flows prior to the construction of the dams will not be allocated costs for the construction of the dams.

27. North Dakota’s Perspective • Article XI, Section 3 of the North Dakota Constitution provides that “[a]ll flowing streams and natural watercourses shall forever remain the property of the state... .” • “The Missouri River continues to flow through Lake Sakakawea today and cannot be considered stored water due to permanent rights held by the State.” • Jack Dalrymple, Governor, North Dakota • “River flows that continue though Lake Sakakawea are not, and should not be, considered stored water, because the State would have been entitled to that water even if the Garrison Dam had never been built.” • Wayne Stenehjem, Attorney General, North Dakota

28. State Solution • Norestriction of access to the States’ water rights from natural flows. • Review the 1980s uncompleted Natural Flow Study • End the newly found (as of May 2010) belief by the COE that that they are storing all water that flows into the reservoirs from the Missouri River. Recognize “stored water” as captured floodwaters that are released to supplement the river flows. • Recognize the limits of the COE authority, and that it does not extend to the “allocation of the river’s resources”

29. Questions? Contact Information • Todd Sando, P.E., State Engineer • North Dakota State Water Commission • tsando@nd.gov • 701-328-4942 • Michelle Klose, P.E., Assistant State Engineer • North Dakota State Water Commission • maklose@nd.gov • 701-328-4959