Western Governors earn long-sought victory as Army Corps rescinds policy on reservoir access for water diversion

Western Governors have won a significant victory in their years-long fight to preserve state authority to manage, allocate and protect their water resources. The U.S. Army Corps of Engineers on Dec. 4 announced the rescission of its policy guidance requiring municipal and industrial water users to acquire a water storage contract with the Corps before being granted access to Corps reservoirs.

The policy, which conflicted with state water laws and allocation systems, effectively prohibited water users from using their state-issued water rights if that water was stored in Corps reservoirs. The policy had a particularly significant impact along the Upper Missouri River Basin, where Corps reservoirs store a substantial proportion of accessible surface waters.

The Corps tried to formalize this policy through a proposed 2016 rulemaking (Use of Army Corps of Engineers Reservoir Projects for Domestic, Municipal, and Industrial Water Supply, aka the “Surplus Water Rule”). It sought to assert Corps authority over all “surplus water” contained in Corps reservoirs, including “natural flows” of the river (that is, volumes of water that would exist regardless of the reservoir’s construction) over which states have legal authority.

After extensive outreach from WGA and Missouri Basin states, the rulemaking was withdrawn by the Corps in March 2020. The action to withdraw the original policy removes a major threat to state authority over water resource management. In its recission memorandum, the Corps states that it will, “take steps to accelerate, simplify, and better integrate the processing of requests for withdrawals of water” from Corps reservoirs.

WGA has led the opposition to the surplus water rule for years. Since the Corps’ publication of the proposed rule in December 2016, WGA has doggedly promoted the principle of state authority over waters stored in Corps reservoirs.  Among WGA’s activities:

  • Feb. 27, 2017 comments to the Corps
  • June 13, 2018 testimony of WGA Policy Advisor Ward Scott to the Senate Committee on Environment and Public Works, Subcommittee on Superfund, Waste Management, and Regulatory Oversight
  • June 18, 2018 letter to the Senate Committee on Environment and Public Works
  • Aug. 22, 2019 letter from a WGA-led coalition, including the Conference of Western Attorneys General, Western States Water Council, and National Water Supply Association, to the White House Office of Management and Budget
  • Feb. 27, 2020 letter from a WGA-led coalition, including the Conference of Western Attorneys General and Western States Water Council, to the Senate Committee on Environment and Public Works
  • May 1, 2020 testimony from WGA Executive Director James D. Ogsbury to the Senate Committee on Environment and Public Works

To learn more about WGA’s water policies and advocacy work, please click here.

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