Water Resources Development Act of 2022 includes South Dakota priorities such as securing state water rights and managing invasive species

The US Senate passed the Water Resources Development Act (WRDA) of 2022 late last week (July 28, 2022). The legislation includes key provisions to bolster South Dakota’s water rights and combat invasive species.

“This legislation provides greater certainty to South Dakota and neighboring states when it comes to water rights, and it provides additional resources for mitigation of invasive species like zebra mussels,” said Senator John Thune. “This is an important bill for the Great Plains, and I’m glad I could play a part in it to advocate for South Dakota’s interests.”

Key provisions included:

1. Improves State Oversight with Respect to Water Rights: The bill establishes a new Western States Cooperative Committee with two slots for South Dakota membership, which will advise the Army Corps of Engineers (Corps) and Congress on policies to maintain the primacy of state water rights. 
2. Extends the Prohibition on Surplus Water Fees: This bill permanently extends the prohibition, meaning the Corps would be prohibited from charging fees indefinitely.
3. Extend Invasive Species Management Pilot Program Authority: WRDA 2020 included a pilot program to assist states in the Upper Missouri River Basin with the development and implementation of plans to mitigate aquatic invasive species, namely zebra mussels. The bill extends the pilot program authority through 2026 to provide states more time to utilize funding.

Background on efforts to protect state water rights:

Since 2010, the Corps has restricted access to the Missouri River reservoirs and has proposed charging an unprecedented fee for so-called surplus water taken from the major reservoirs in the upper basin. When the Corps built the dams along the river after Congress passed the 1944 Flood Control Act, it flooded prime state and tribal land with the agreement that by doing so, residents would have access to water from the Missouri River for various purposes. Although some of those intended purposes such as irrigation never fully materialized, the states never ceded the right to use Missouri River water for municipal and industrial water supplies.

After years of work by Thune and the South Dakota delegation, a provision was included in WRDA 2014 prohibiting the Corps from charging surplus water fees in the Upper Missouri River Basin for 10 years.  In 2018 WRDA bill, this prohibition was extended to 12 years and again to 16 years in WRDA 2020. Simultaneously, Senator Thune and the delegation urged the Corps to reverse course on overreaching water supply regulations and guidance. In response, the Corps withdrew its Water Supply Rule in January 2020 and the Real Estate Policy Guidance Letter No.26 in December 2020.  Both actions were important steps toward restoring traditional access to the Missouri River for states like South Dakota without undue interference from the federal government.