Missouri River Association of States and Tribes

Surplus Water Supply Issue

June 1st, 2011 | Posted by David Pope in Information | Surplus Water Supply

The following is a brief summary of the Surplus Water Supply Issue.  A series of documents may also be accessed below to more fully describe the proposal by the U.S. Army Corps of Engineers (USACE), as well as comments from several States and Tribes.

Access to water supply from the Missouri River and associated reservoirs is a current issue of major concern to a number of States, Tribes and water users.  The basic issue, as it pertains to the Missouri River appears to be that the USACE is applying a new policy as it relates to withdrawal of water from the Missouri River Mainstem Reservoir System irrespective of whether such water is stored water or water available from the natural flow of the Missouri River but for which access across Federal property is needed to divert water from the river.

Historically, water users who diverted water from the shore of a USACE Missouri River Mainstem Reservoir were able to obtain easements to cross Federal property with pipelines and to place water intakes in one of the reservoirs to allow the withdrawal of water for beneficial uses, such as municipal or industrial water supply, irrigation or other uses.  In most cases, this diversion of water is from the natural flow of the Missouri River pursuant to water rights granted by the applicable State.  In the case of a withdrawal of water on an Indian Reservation, the Tribal Government holds Federal Reserved Water Rights, and it can authorize withdrawal of water from the natural flow.  For the area in question, the natural flow of the Missouri River (the flow not supplemented by reservoir storage) apparently exceeds the total diversion of water by all current and proposed users at any given time, so a withdrawal from reservoir storage is not necessary to provide a reliable source of water.

On June 6, 2008, the USACE issued Real Estate Policy Guidance Letter No. 26 – Easements to Support Water Supply Storage Agreements and Surplus Water Agreements.  Subsequent to this Policy Guidance and based on requests for easements or requests to withdraw water from Lake Sakakawea in North Dakota, the USACE determined that it would be necessary for such water users to enter into Water Supply Agreements for the use of water from Lake Sakakawea and pay the for the use of water.  In December 2010, the Omaha District, USACE, released a Draft Surplus Water Report and Draft Environmental Assessment for the Garrison Dam/Lake Sakakawea Project in North Dakota.

During the comment period, various States, Tribes and other entities provided comments to the USACE.  The Draft Report and Environmental Assessment referred to above and comments from several States and Tribes are available through the following links.  A final decision on approval of the Draft Report is pending in USACE Headquarters.  Addition information as it applies to the other five Missouri River Mainstem Reservoirs is shown after these links, along with background documents presented at the March 8, 2011 MoRAST meeting.

Garrison Dam/Lake Sakakawea Project Draft Surplus Water Report, North Dakota

Letter from Montana Governor – February 1, 2011

Letter from North Dakota Governor – January 31, 2011

North Dakota State Water Commission Letter – February 1, 2011

Letter from South Dakota Governor – January 19, 2011

Nebraska Department of Natural Resources Comments – January 31, 2011

Nebraska Attorney General Comments – Surplus Water Report February 1, 2011

Mandan, Hidatsa & Arikara Nation Surplus Water Report – February 1, 2011

Missouri Department of Natural Resources Surplus Water Letter – January 28, 2011


The USACE recently announced that it has begun development of Surplus Water Reports for the other five reservoirs on the mainstem of the Missouri River and will presumably apply the same proposed method for access to water from these lakes, essentially treating all water diverted from the reservoirs as stored water subject to water supply agreements. See USACE letter announcing a series of “agency” meetings to be held May 10 in Fort Peck, MT, May 11 in Pierre, SD and May 23 in Omaha, NE, as further described in more detail in the letter.

Since the Missouri River in most of North Dakota and South Dakota and part of Montana and several Indian Reservations is inundated by the six mainstem reservoirs, this policy may impose a major limit on access to water from the river in these States and on these Reservations, unless water supply agreements are entered into with the USACE.

A presentation on this issue was made by Michelle Klose of the North Dakota Water Commission at the March 8, 2011 meeting of MoRAST.  She also referenced a series of documents that may be found on the MoRast website.

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