Senators Urge Army Corps Collaboration on Water Supply Rule

WASHINGTON, DC – Senator James Lankford (R-OK) joined Senator Kevin Cramer (R-ND) on a bipartisan letter to the Office of Management and Budget (OMB) Director Mick Mulvaney expressing strong opposition to the US Army Corps of Engineers (Corps) proposed rulemaking for their use of reservoir projects for domestic, municipal, and industrial water supply. He was joined by Senators Mike Crapo (R-ID), Jim Risch (R-ID), Steve Daines (R-MT), Kyrsten Sinema (D-AZ), Ron Wyden (D-OR), John Barrasso (R-WY), Mike Enzi (R-WY), John Hoeven (R-ND), Ted Cruz (R-TX), Martha McSally (R-AZ), Jim Inhofe (R-OK), Mike Rounds (R-SD), Cory Gardner (R-CO), Jeff Merkley (D-OR), John Thune (R-SD), John Cornyn (R-TX), and Michael Bennet (D-CO).

“We have attempted to provide input to the Corps on its proposed implementation of federal law, but our concerns have not been adequately addressed,” the senators wrote. “We urge you in your capacity to direct the Corps to make the adjustments necessary to follow decades of federal precedent and respect state and tribal water authority.”

States, tribes, and stakeholders filed comments expressing concern the rule—first proposed in December 2016—conflicts with Congressional intent and state water authority. OMB also received letters on this issue from the National Water Resources Association, the Western Governors Association, the Western States Water Council, the National Water Supply Alliance, and the Conference of Western Attorneys General.

Click here to view the letter.

Director Mulvaney:

We write to express our strong opposition to the US Army Corps of Engineers’ (Corps) proposed rulemaking regarding the use of Corps reservoir projects for domestic, municipal, and industrial water supply (81 FR 91556). Along with a number of states, tribes, and stakeholders, we have attempted to provide input to the Corps on its proposed implementation of federal law, but our concerns have not been adequately addressed. It is our understanding a final regulatory action by the Corps is imminent and will be submitted to your office for review. We urge you in your capacity to direct the Corps to make the adjustments necessary to follow decades of federal precedent and respect state and tribal water authority.

As it relates to the arid Western states, Congress and the Courts have given clear and consistent deference to states for water allocation from statehood through the 1944 Flood Control Act (FCA) and the Water Supply Act (WSA) of 1958. In the Corps’ proposed regulation, it assumes water appropriation authority for all waters surrounded by Corps property. In fact, this has been the practice since 2010 with the implementation of Real Estate Policy Letter 26 requiring water supply agreements. Prior to the 2010 policy and the current proposed rulemaking, all that was required in making a water withdrawal across Corps property was obtaining a real estate easement.

The Corps’ preferred alternative ignores both precedent and statute that the natural flows of the river remain squarely under the State’s jurisdiction, despite construction of Corps dams and reservoirs. Using the Missouri River as an example, as long as its flows continue to be greater than the overall use granted by the states, water users are not benefiting from storage in Corps reservoirs. Therefore, water users should not be required to obtain water supply agreements with the Corps or pay any fees. If flows are less than appropriated, the states take measures accordingly to reduce water use. Ultimately, the states are responsible and will take the appropriate action. It was never the intention of Congress to federalize all of the water in our country’s major rivers. That should not change.

Recently, the Western Governors’ Association, Conference of Western Attorneys General, National Water Supply Alliance, Western States Water Council, and National Water Resources Association sent bipartisan letters to you expressing similar concerns. We would like to reiterate our shared concern: ‘We respectfully request that the Water Supply Rule be withdrawn, and the Corps be instructed to comply with state water laws in the exercise of its authority under the WSA and FCA’ … ‘the Corps has failed to meaningfully consult with states, on a government-to-government level, during the development of the Proposed Rule, contrary to the directives of Executive Order 13132.’ This rule ought to be withdrawn or at least revised to accommodate state and tribal input in accordance with the law.

Sincerely,

###