Western states, tribes address concerns about Army Corps rulemaking on surplus water in reservoirs

Western states, the Western States Water Council (WSWC) and other stakeholders met with representatives of the U.S. Army Corps of Engineers on Oct. 2 in South Dakota to ask questions and seek a role in rulemaking for the treatment of surplus water in Corps-managed reservoirs.

The meeting in Deadwood involved a frank conversation. Reporter Adam Hurlburt of the Black Hills Pioneer quoted Michelle Klose, an assistant state engineer with the North Dakota Water Commission, who summed up stakeholders' concerns: “The states and tribes all have rights along the river system for flows, and the Corps is making a different assumption here, it seems, than what we’ve understood in the past, since 1944.”

Northwest Division Program Director Dave Ponganis read an official statement that noted the Corps is solely "examining the need to update and clarify through notice and comment rulemaking the policies governing the use of storage in its reservoir projects" and that "any rulemaking that the Corps does pursue will ... provide ample opportunity for public comment and for consideration of all viewpoints expressed.” (Read the complete story in the Black Hills Pioneer.

While no decisions were made, the Corps' Ponganis did say that while “the different water rights is (sic) a very thorny issue ... that’s not a reason for us not to sit and talk about it, and it’s not a reason for us not to find ways forward.”

The Western Governors' Association (WGA) previously expressed its concern about the Corps rulemaking process in a letter to Jo-Ellen Darcy, Assistant Secretary of the Army (Civil Works). Read the letter. WSWC, which represents 18 Western states on water policy, sent a similar letter to the Corps on Aug. 6.

Specifically, the WSWC and WGA are concerned that an expanded definition of “stored water” in the Corps rulemaking process could make the natural flows of the river (water that would normally pass through a reservoir if not for a dam) subject to contracts and fees. Such a measure would fail to recognize state authority over management of surface water.

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