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21–391 PDF 2016

S. HRG. 114–358 

FIVE YEARS FROM THE FLOOD: OVERSIGHT OF 

THE ARMY CORPS’ MANAGEMENT OF THE 

MISSOURI RIVER AND SUGGESTIONS FOR IMPROVEMENT 

FIELD HEARING 

BEFORE THE

SUBCOMMITTEE ON SUPERFUND, WASTE 

MANAGEMENT, AND REGULATORY OVERSIGHT 

OF THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

MARCH 31, 2016—NORTH SIOUX CITY, SD 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys 
(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

JAMES M. INHOFE, Oklahoma, Chairman 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming 

SHELLEY MOORE CAPITO, West Virginia 

MIKE CRAPO, Idaho 

JOHN BOOZMAN, Arkansas 

JEFF SESSIONS, Alabama 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

MIKE ROUNDS, South Dakota 

DAN SULLIVAN, Alaska 

BARBARA BOXER, California 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

RYAN JACKSON, Majority Staff Director 

BETTINA POIRIER, Democratic Staff Director 

SUBCOMMITTEE ON SUPERFUND, WASTE MANAGEMENT, 

AND REGULATORY OVERSIGHT

MIKE ROUNDS, South Dakota, Chairman 

DAVID VITTER, Louisiana 

MIKE CRAPO, Idaho 

JOHN BOOZMAN, Arkansas 

DAN SULLIVAN, Alaska 

JAMES M. INHOFE, Oklahoma (ex officio) 

EDWARD J. MARKEY, Massachusetts 

THOMAS R. CARPER, Delaware 

JEFF MERKLEY, Oregon 

CORY A. BOOKER, New Jersey 

BARBARA BOXER, California (ex officio) 
(III) 

C O N T E N T S 

Page 

MARCH 31, 2016 

OPENING STATEMENT 

Rounds, Hon. Mike, U.S. Senator from the State of South Dakota .................... 1 

WITNESSES 

Ponganis, David, Programs Director, Northwestern Division, U.S. Army Corps 

of Engineers .......................................................................................................... 3 

Responses to additional questions from Senator Markey ............................. 6 

Pirner, Steve, Secretary, South Dakota Environment and Natural Resources .. 14 

Frazier, Harold C., Chairman, Cheyenne River Sioux Tribe ............................... 15 

Dooley, Jeff, Manager, Dakota Dunes Community Improvement Project .......... 17 

Lepisto, Paul, Regional Conservation Coordinator, Izaak Walton League of 

America ................................................................................................................. 18 

Responses to additional questions from Senator Markey ............................. 21 

(1) 

FIVE YEARS FROM THE FLOOD: OVERSIGHT 

OF THE ARMY CORPS’ MANAGEMENT OF 

THE MISSOURI RIVER AND SUGGESTIONS 

FOR IMPROVEMENT 

THURSDAY, MARCH 31, 2016 

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

SUBCOMMITTEE ON SUPERFUND, WASTE MANAGEMENT, 

AND REGULATORY OVERSIGHT, 

North Sioux City, SD. 

The subcommittee met, pursuant to notice, at 1:05 p.m. in the 

North Sioux City Council Chambers at City Hall, Hon. Mike 

Rounds (chairman of the subcommittee) presiding. 

Present: Senator Rounds. 

OPENING STATEMENT OF HON. MIKE ROUNDS, 

U.S. SENATOR FROM THE STATE OF SOUTH DAKOTA 

Senator ROUNDS. Good afternoon. The Environment and Public 

Works Subcommittee on Superfund, Waste Management, and Regulatory Oversight is meeting today to conduct a field hearing entitled ‘‘Five Years from the Flood: Oversight of the Army Corps’ 

Management of the Missouri River and Suggestions for Improvement.’’ I would like to thank our witnesses for being with us today, 

and I look forward to hearing your testimony. 

The United States Army Corps of Engineers is responsible for 

managing the Missouri River to meet the needs of both the Corps 

and the surrounding communities. In order for this to be successful, management of the river should always be done with extensive 

communication among stakeholders and a well founded understanding of the needs of State and local governments, agriculture, 

recreation and economic interests, all of which depend on the proper management of the Missouri River. 

In 2011 record setting rains, unusually moist soil conditions, and 

melting snow from a near-record setting snowfall in the Rocky 

Mountains and Northern Plains States combined to form a perfect 

storm that led to catastrophic flooding all along the Missouri River 

basin. 

From May through August extensive flooding caused major damage on residences, infrastructure, businesses and agriculture in the 

basin States of South Dakota, North Dakota, Iowa, Nebraska, Missouri, Montana and Kansas. 

The flood caused more than $2 billion in damages and resulted 

in five fatalities. Four thousand homes were flooded. Roads were 
2 

destroyed, and agricultural land was ruined. Entire communities 

were under attack from the 2011 flood, largely left to fend for 

themselves. The Federal Emergency Management Administration, 

or FEMA, issued disaster declarations in each State in this region. 

In our State capital of Pierre and neighboring Fort Pierre, residents were given less than 1 week to prepare for what would be 

one of the worst floods in 60 years. After the flood, the city’s 

streets, sewage system, storm sewers, parks and electrical systems 

suffered unprecedented damage that cost millions of dollars to repair. The recovery took months. Citizens are still paying for the 

damages. 

When the floodwaters had receded and life began to return to 

normal, the next step was to make sure that any and all measures 

were taken to make certain this would not happen again. 

In 2014 Government Accountability Office reported—report concluded that improving existing hydrologic data and collecting new 

soil moisture, plains snowpack, and archeological flood and drought 

data could assist the Corps in making future release decisions and 

in improving long-term forecasting models. Accordingly a 2014 

Water Resources Reform bill, which is commonly referred to as 

WRRDA, authorized the Army Corps to coordinate with various 

government agencies to create a soil moisture and snowpack monitoring network in the Upper Missouri River Basin. 

Since the flood we have also been confronted with several other 

issues involving the Army Corps’ management of the Missouri 

River. In 2008 the Army Corps issued Real Estate Guidance Policy 

Letter Number 26. This directive required municipal and industrial 

water users from the Missouri River Mainstem Reservoirs to acquire a water storage contract from the Corps before the Corps 

would issue an access easement for a pump site. Since the issuance 

of this guidance policy the Corps has been seemingly unable or unwilling to issue access easements to South Dakotans seeking to utilize water from the Missouri. 

Additionally, the Corps has been undertaking surplus water 

studies and engaging in a rulemaking effort to standardize how the 

Corps will charge citizens for surplus water storage. The 2014 

WRRDA bill prohibited the Corps from charging a fee for surplus 

water for 10 years. This prohibition should be permanent. South 

Dakotans should not be required to pay a fee of any kind for using 

water from the Missouri River. 

Proper management of the Missouri River is vital to life in the 

Midwest. We depend on the Missouri River not only for recreation, 

but for agriculture and irrigation, shipping and hydroelectric 

power. The Missouri River is vital to our livelihood and to our economy. 

It has now been nearly 5 years since the flood. Today we will be 

hearing testimony from both the U.S. Army Corps of Engineers and 

State and local stakeholders regarding the Corps’ management of 

the Missouri River. We will be exploring what the Corps is doing 

right, what can be improved upon, and how Congress can help get 

the Corps and the communities the resources they need to manage 

this vital resource. We will also offer suggestions on how the Corps’ 

management can be improved in order to prevent future flooding 
3 

and better meet the needs of both the surrounding communities 

and the Corps. 

Each witness will have approximately 5 minutes to present their 

testimony, and I will then follow up with questions to the witnesses. 

I’d like to again thank our witnesses for being with us today, and 

I look forward to hearing all of their testimonies. 

This hearing has two panels. We’ll begin with our first panel 

today, and Mr. Dave Ponganis is the Director of Programs, the 

Northwestern Division of the U.S. Army Corps of Engineers. Mr. 

Ponganis, whenever you’re ready you may begin your 5 minutes of 

testimony. Once again, we appreciate your being here today. 

STATEMENT OF DAVID PONGANIS, PROGRAMS DIRECTOR, 

NORTHWESTERN DIVISION, U.S. ARMY CORPS OF ENGINEERS 

Mr. PONGANIS. Thank you, Chairman Rounds. I am Dave 

Ponganis, Programs Director of Northwestern Division of the U.S. 

Army Corps of Engineers. I am pleased to be here today to discuss 

the efforts of the Corps in the Missouri River basin to reduce the 

risk of flood damage during and after the Missouri River flood of 

2011. 

The Missouri River Mainstem Reservoir System is comprised of 

six multipurpose dams and reservoirs, which include hydroelectric 

power plants and recreational areas; levees downstream along the 

mainstem of the Missouri River and a 735-mile navigation channel 

extending from Sioux City, Iowa, to the mouth near St. Louis, Missouri. The six dams on the mainstem of the Missouri River form 

the largest system of reservoirs in the United States. 

The Corps is charged with responsibly managing this complex 

and extensive system for eight congressionally authorized purposes: 

Flood control, navigation, hydropower, municipal and industrial 

water supply, water quality control, recreation, irrigation, and fish 

and wildlife. The Missouri River Master Manual is the Corps’ manual that guides the operating regime of these reservoirs under a 

wide range of water conditions consistent with those authorized 

purposes. In addition, operation of the system must also comply 

with other applicable Federal statutory and regulatory requirements, including the Endangered Species Act. 

Cycles of flooding and drought have always been a major part of 

the Missouri River Basin hydrology. The 2011 flood was the result 

of unprecedented hydrologic events. Following a wet fall of 2010, 

heavy snow accumulated on the upper plains of Montana, Wyoming, North and South Dakota. Mountain snowpack was just 

slightly above average most of the winter but surged late in the 

season and peaked much above average in early May. 

But it was the unprecedented record rainfall in May and June 

over much of Montana, North Dakota and South Dakota that, 

when combined with the runoff from the plains and mountain 

snowpack, resulted in the flood event of 2011. Runoff above Sioux 

City, Iowa, totaled 62 million acre-feet compared to a normal 25 

million acre-feet, more than double the average and the highest on 

record, requiring record releases from all six mainstem dams. Releases from Gavins Point Dam were maintained between 150,000 

cubic feet per second and 160,000 from mid-June through mid-Au-
4 

gust, more than double the previous record release of 70,000 cubic 

feet per second. 

While much damage occurred in the basin during this flood, the 

Missouri River Mainstem Reservoir System, including the Federal 

and non-Federal levees, along with the response actions taken by 

Federal, State, and local agencies, and private citizens both before 

and during the flood, provided substantial benefits. Without them 

the damages and safety risks would have been much greater. Important repairs have been completed since then. There are still a 

few to be done that we’re working on right now. 

During the Missouri River flood of 2011, the Corps expended approximately $70 million on fortifying existing levees, building temporary levees, monitoring dam and levee safety and other activities, 

such as providing flood flight supplies to States and tribes, within 

the Corps’ authorities under Public Law 84–99. These actions by 

the Omaha and Kansas City Districts of the Corps were highly effective in reducing flood damages along the mainstem of the Missouri River. 

Following the flood the Corps initiated a variety of post-flood actions. These include both internal and independent external technical reviews of the water management operation, an after action 

review of the flood flight response, and the concentrated effort to 

assess and repair key features of the infrastructure that the Corps 

owns and operates on the Missouri, as well as eligible non-Federal 

levees under the Corps’ Public Law 84–99 program. In addition, we 

also participated in a review of our reservoir operations by the Government Accountability Office. 

The Corps set up an external technical review panel to assess the 

Corps’ operation of the mainstem reservoir system prior to, during, 

and after the 2011 flood event for the purposes of gaining lessons 

learned and recommendations to improve future operations. The 

independent review panel recommended infrastructure investment 

to ensure that our flood release spillways and tunnels are ready for 

service and our levees are in good condition. Consistent with this 

recommendation, the Corps has spent over $580 million since 2011 

to repair Federal and non-Federal infrastructure on the Missouri 

River including the dams, levees, and channel structures. The bulk 

of these repairs were completed prior to the 2012 run-off season. 

However, some repairs, particularly for the large items such as 

spillway structures and gates are still underway. 

The independent panel also recommended that the Corps conduct 

several studies on the operation of the Missouri River Mainstem 

System. The 2011 flood was a historic event that provided a new 

data point to incorporate into the tools used to predict, monitor, 

and manage the system. The Corps has updated numerous internal 

technical reports and has partnered with NOAA on three additional reports. These include an attribution study of the 2011 flood, 

an evaluation of the feasibility of managing the reservoir system 

for anticipated wet and dry cycles, and a study that is looking at 

changes of the basin climatology and hydrology since the 1970s. 

Post-2011 flood, the Corps has worked with the National Weather Service, the Natural Resource Conservation Service, and States 

to share existing data and have developed a proposal for com-
5 

prehensive a snow plains snowpack and soil moisture monitoring 

network for the upper plains. 

Since 2011 the Corps has also greatly enhanced its coordination 

with tribes, State, and local governments during periods of heightened flood risk including monthly basin calls leading up to and 

during the peak run-off seasons. 

Knowing my time has run out, Senator—— 

Senator ROUNDS. Take another minute, and try to finish up. 

Mr. PONGANIS. OK. In September 2014 the GAO issued a report 

on its review of the Corps’ water release decisions and communication during the 2011 flood and the 2012 drought. As part of this 

review GAO worked with the National Academy of Sciences and 

convened a meeting of nine experts to discuss the Corps’ data, forecasts, and release decisions. These experts concluded that the 

Corps took appropriate action during the 2011 flood and the 2012 

drought given the circumstances but recommended that the Corps 

evaluate the pros and cons of incorporating new forecasting techniques into its management of the Missouri River system. That 

evaluation is ongoing and is expected to be completed later this 

summer. 

We are hopeful that the improvements in the run-off forecasting 

and sharing of critical data will provide even greater lead time for 

flood events resulting from high plains and mountain snowpack, although they will have little impact on the more typical rainfall 

driven flooding which is most common in the lower basin. The 

Corps is also communicating more frequently and more broadly 

with Federal, State, county, and local officials, tribes, emergency 

management officials, independent experts and the media to discuss conditions on the ground and current Corps reservoir release 

plans and forecasts. 

This concludes my testimony. Thank you for allowing me to testify about the flooding in 2011 and future operation of the Missouri 

River Mainstem System. I will be happy to answer any questions 

you may have. 

[The responses of Mr. Ponganis to questions for the record follow:] 
6 
7 
8 

Senator ROUNDS. Thank you, Mr. Ponganis. 

Mr. Ponganis, along with all of the other individuals who will be 

testifying today, has provided us with a written testimony, and all 

of the written testimony will be entered in its entirety into the 

record of this meeting. 

[The referenced testimonies were not received at time of print.] 

Senator ROUNDS. Mr. Ponganis, section 4003 of the 2014 WRRDA 

Bill authorized the Corps to coordinate with various Government 

agencies to create a soil moisture and snowpack monitoring network in the Upper Missouri River basin and maintain high elevation snowpack monitoring sites. However, in a 2015 report the 

Government Accountability Office found that Federal agencies have 

made limited progress implementing the monitoring program. 

What is the status of the soil moisture and snowpack monitoring 

program? What can Congress do to better facilitate the implementation of its program, and is the Corps willing to take the role of 

lead agency to implement this program? 

Mr. PONGANIS. Senator, we have gotten implementing guidance 

of that WRRDA section. What that guidance indicates to us is that 

one, we need to seek additional appropriations specifically. In other 

words, it was in addition to our normal operations. 

In addition, as part of that we would need to ensure that once 

we help and work with the other forecasting agencies, NOAA, 

NRCS, USGS, and what kind of additional monitoring is necessary, 

where, and once those additional monitoring sites would be installed, that those agencies would be responsible for taking over 

the maintenance and the monitoring activities which we would 

need to enter. So we are starting that coordination with them on 

that, and we’re hopeful that we’ll get future appropriations to do 

so. 

Senator ROUNDS. So in 2014 the bill authorized the Corps to coordinate with the various other Government agencies. We’re now in 

2016. 

Mr. PONGANIS. Yes, sir. 

Senator ROUNDS. You’re now suggesting that you need additional 

funding from Congress. Has that request been made at all? 

Mr. PONGANIS. So, Senator, the process that we have is we get 

implementation guidance from our Secretary of the Army’s office 

and through our headquarters’ office, we got of—any sections in 

WRRDA, we got that this fall. So it was too late to enter into anything for the President’s budget process for this current—proposed 

for fiscal year 2017. Now that we have that, we’ll engage with the 

Administration in looking into the proposed budgets for the future 

years, sir. 

Senator ROUNDS. You know, one of the reasons why people up in 

this part of the country get frustrated is because they see that 

things don’t move very fast when it comes to the Federal Government. You’ve got folks out here in the audience right now that lived 

through a flood in 2011. It was at a time—and let me just background this just a little bit. There were folks up and down this Missouri River at that time that understood that we had full reservoirs, that we had snowpack in the mountains. It didn’t take a 

scientist to see that. They knew that we had a lot more snow in 
9 

the upper Midwest. Every report out that you could find from commercial sources would have indicated that. 

As my memory serves me correct, during March, I believe it was 

on March 3rd, it was one of those kind of days that you remember. 

On March 3rd it seems to me that one of the Corps’ spokespeople 

said in an article that was related in the Omaha Herald on that 

day, that we were going to be just fine that year with regard to 

maintaining the water levels within the banks, unless it rained. 

And I don’t believe they quite said ‘‘unless it rained,’’ but basically 

unless we had additional moisture, and so forth. That was on 

March 3rd. 

My first thought after looking at that was, is that it’s a heck of 

a way to run a major system right through the middle of the 

United States, that we would be just fine unless it rained. 

And second of all, I live along the Missouri River. I live on the 

Fort Pierre side of the Missouri just across from the capital city of 

Pierre. We had moved into our home after I left working as Governor for a period of 8 years. We moved into a new home along the 

Missouri River, and we could see the levels below the Oahe Dam 

and the tailwaters of Lake Sharpe. We had record low releases the 

first week in May, record low releases. I know because we were actually working on the shoreline behind our home. Three weeks 

later we moved out of our home. People in our entire area of 80- 

some homes moved out. We did so because we had basically just 

about a week’s notice that something bad was going to happen. 

I can understand why folks up here don’t refer to it as the 2011 

flood. They refer to it as the Corps flood of 2011. In part because 

they think that there was not enough information provided by the 

Corps in advance and that the Corps was unprepared to deal with 

this amount of water coming through which was very large 

amounts. But it seems like after operating this particular system 

for more than 60 years, that there would be an adequate way to 

determine whether or not the amounts of water coming in was 

more than what we could handle in the mainstem dams and 

whether or not we might have more than a week’s notice below 

every one of these major facilities with regard to huge releases that 

all of a sudden had to happen. 

We moved out of our home, and I said we were out for 2 months. 

My wife reminds me, no, it was 63 days. There were a lot of folks 

out here that were gone, that were out for a lot longer than that, 

and there was billions of dollars in damage that was done, some 

of which, I think a lot of people think could have been handled 

more appropriately if we could have started making releases sooner. It doesn’t mean that we could have stopped all the damage that 

was done, but most certainly it could have been eliminated more 

if we wouldn’t have had record low releases for a month before we 

had record high releases. You could have averaged it out a little 

bit. But you can’t do that unless you’ve got adequate information. 

We understand that if we had not provided the resources to get 

it, or if we had not provided the directions, as Congress, to the 

Corps of Engineers, to maintain or to get adequate information, but 

the reason why I lay out this is because now, after we’ve had a direction from Congress that you get in gear with other agencies to 

actually put together the necessary information to prevent it in the 
10 

future, 2 years later you’re saying that you can’t get it done until 

we get an appropriation from Congress, and you didn’t think 

enough about it to get it done in this appropriations bill. I don’t understand. And so if I’m a little upset, I think there’s a whole lot 

of people out here that are probably more upset than what I am. 

Can you just share with us a little bit about why this is taking 

more than 2 years just to get the original plans done, so you can 

get the monitoring in place so we don’t have this kind of thing because you don’t have the information necessary on how to appropriately maintain the water levels in this major structure throughout the central part of the United States? 

Mr. PONGANIS. Senator, one, several actions took place immediately after the flood event. We did work with the other agencies. 

As part of that coordination/collaboration with NOAA and USGS 

was the emphasis that—the foundation for the WRRDA section 

that you’ve identified. So, one, that was a result of a lot of good 

work that was done prior to WRRDA 14. 

Second, we have worked with NOAA to look at flood forecasts. 

Could we have foreseen it? Are there changes that are occurring? 

Can NOAA, who we rely on, from the weather—National Weather 

Service and the forecasting to look and predict earlier on. And 

those reports of—a couple have been completed. One’s still ongoing. 

So we haven’t, in the absence of seeking appropriations for this 

particular section, we have not stood still, sir. We have tried to do 

our best working with those agencies and trying to get better. You 

are totally correct, when operating a major system like this, having 

information early on is critical. 

Another part is we have started, and continue, to this day, with 

having calls early on, starting in January, with the region, with the 

forecasting agencies to share whatever information we have as 

early as we can, sir. 

Senator ROUNDS. I think it still comes back down to it should not 

take 5 years to implement this type of a program, and right now 

we’re talking about years to come yet, unless we can expedite this. 

Could I have your assurance that the Corps of Engineers would be 

interested in expediting this process to get this in place as soon as 

possible? 

Mr. PONGANIS. Sir, we’ll work with the Administration on trying 

to implement that section of WRRDA as quickly as we can, sir. 

Senator ROUNDS. Very good. 

In 2008 the Corps issued a Real Estate Guidance Policy Letter 

Number 26. This directive required municipal and industrial water 

users from the Missouri River Mainstem Reservoirs to acquire a 

water storage contract from the Corps prior to the Corps’ issuing 

an access easement for a pump site. Access easements are needed 

for all South Dakota water users of the Missouri River to include 

municipal, industrial, and temporary use for short-term projects for 

which State permits have been issued. 

The Corps’ unwillingness to issue access easements affects South 

Dakotans’ ability to manage the public’s ability to use water from 

the Missouri River. Do you plan to continue denying access easements to South Dakotans seeking to use water from the Missouri 

River? 
11 

Mr. PONGANIS. Senator, let me give you the status of where we’re 

at and our direction from the Assistant Secretary of the Army’s office. About 2012 we were asked by the Assistant Secretary to 

produce surplus water reports for the six major reservoirs projects. 

It was through that process and approval of those reports that 

would allow us to move forward and enter into contracts with the— 

with the provision of WRRDA 14 of not charging, and therefore 

allow the real estate access. One of those reports has been approved by the Assistant Secretary of the Army’s office for Garrison. 

There’s still—other ones are under review. 

Concurrently, the Assistant Secretary of the Army’s office with 

our headquarters have been pursuing a rulemaking on surplus 

water reports, Water Supply Act, charging practices, our policy of 

how to allow for these storage contracts, et cetera. And the reason 

the Secretary’s office was going to pursue that was because when 

this issue came back up in 2012, it was found out nationwide it 

was being—there’s inconsistencies across this country in how we 

were implementing that, and the idea was to try to get some consistency. That rulemaking is being done at that level, not in the regional level. 

I can’t give you—sir, I would be speculating of where they’re at. 

I know they’ve been working very hard on it. They’re very hopeful 

that something can come out soon so that we can have that. And 

if it comes out as a rule, for comment by all the States, stakeholders across the country. It’s an important issue, as you know, 

and nationally water supply is a major concern across this country 

given the recent droughts that we’ve had. 

Senator ROUNDS. Well, based upon the 2014 WRRDA bill, it required the Corps to waive the proposed water charges for contract 

and surplus water identified in the surplus water reports. Can you 

tell me the status of the surplus water studies then? Is that the 

one that you’re saying right now that they’re still in the middle of 

trying to do a rulemaking process? 

Mr. PONGANIS. They’re in the middle of doing the rulemaking. 

We are implementing congressional direction on—we are not charging per that section of WRRDA, sir. 

Senator ROUNDS. So you’re not charging for the water that’s in 

storage, but you’re still in the middle, as you understand it, and 

I understand this is not regional, but your understanding is that 

they’re in the middle of proposing the rules to charge or to put together a policy to charge for the water even though Congress has 

directed that for the next 10 years you not charge for the water in 

storage. Is that a correct analysis here? 

Mr. PONGANIS. So the 10-year moratorium on charging is for 

water for surplus. There’s two acts. One is the surplus water provisions and also then there’s the Water Supply Act. And again, sir, 

I haven’t been involved in any details of the national rulemaking 

to give you any specifics on how that’s being addressed, sir. 

Senator ROUNDS. OK. I don’t think that there should be a charge 

for that water which flows through. I think that’s part of the process that we should have access to. I’ll go back down to even the 

city of Pierre, which is right on the Missouri River, simply trying 

to get access so they can do irrigation in their park systems. As of 

yesterday they still had not had a response back simply to get ac-
12 

cess across the Corps land to get in to put in a pump station so 

that they can access the water, which is part of the free flowing 

part in the Lake Sharpe area of the Oahe dam. There’s got to be 

a better way to do this. 

Currently, Mr. Ponganis, the Corps is currently engaged in a recovery program to replace lost habitat for the pallid sturgeon, the 

piping plover and the least tern. Can you update us on the status 

of these plans? 

Mr. PONGANIS. Yes, Senator. We are working with the Missouri 

River Recovery Implementation Committee, per congressional direction under WRRDA 07, that committee was formed, approved by 

the Assistant Secretary of the Army at the time. We’ve had an 

independent scientific advisory panel review all of the current 

science. We’re still looking at the recommendation of the scientists 

in terms of what actions would be needed or required and life 

stages of these different endangered species, how best to look at 

that. 

We’re right in the middle of that analysis, sir. And the schedule 

is to work through that analysis, identify potential actions, evaluate those actions and produce a draft environmental impact statement by the end of this calendar year. That would come out for 

public review, regional reviews so everybody has a chance to look 

at that. No decisions have been made on what types of actions we 

would take in the future because we still have to go through that 

process, sir. 

Senator ROUNDS. OK. First of all, let me thank you for coming 

out for this meeting today. Let me just finish in terms of questions 

for you today, sir, just asking if there was anything that Congress 

has not done that they should be doing that we can help with with 

regard to helping you to eliminate or to absolutely minimize the 

possibility of a flood like what occurred in 2011 from happening 

again; I most certainly would invite your thoughts on it. 

I can tell you that I was fortunate. We had a city which stepped 

way up in the city of Fort Pierre and help put together a berm that 

protected all the homes in our development area. So I’m one of the 

lucky ones because we didn’t have our home destroyed. I would 

suspect that there are folks here in the audience today who did 

have their homes destroyed. 

And I think the message if nothing else is that this has not been 

one of those items which has simply been put on the back burner 

because we had a drought in 2012, and that somewhere along the 

line, even though sometimes we’re not very efficient at the Federal 

level, we get things done. And that, I hope, is part of what folks 

come away with is that there truly is an intent to try to fix this 

problem because one clearly exists. And if there’s anything that 

Congress needs to hear from you about what we need to do to help 

you in your job to see that it doesn’t happen again, I would offer 

this—you know, a few minutes for you to express that at this time. 

Mr. PONGANIS. Well, Senator, again, we recognize this is an extremely important and complex system out here. Your statements 

earlier about having better information as early as possible, we’re 

exploring those. And we will do everything possible to try to improve upon that in the future. Communication is key as you also 

mentioned. We will continue to have those early and often regional 
13 

discussions of what the system looks like for the coming year, our 

best estimates, both from a Federal and which allows the States— 

as well as the public—to comment on what information they may 

have so we can have a better understanding. So we’ll continue to 

do that, sir, and if we find out anything else that we need we will 

definitely let you know. 

Senator ROUNDS. Thank you. Thank you, Mr. Ponganis. Appreciate it. 

Mr. PONGANIS. Thank you. 

Senator ROUNDS. At this time I would also like to call up our second panel of witnesses. Our witnesses joining us for our second 

panel today are Secretary Steve Pirner, Secretary for the Department of Environment and Natural Resources. And Steve, come on 

up and join us, please, up here. 

Chairman Harold Frazier, Tribal Chair of the Cheyenne River 

Sioux. Chairman, welcome today. 

Mr. Jeff Dooley, District Manager of the Dakota Dunes Community Improvement District. Jeff, welcome. 

And Mr. Paul Lepisto, Regional Conservation Coordinator of the 

Izaak Walton League of America. Paul, come on up. 

By the way, for anybody that’s here or watching, if you have 

thoughts, you’d like to have something incorporated into this, I will 

make the announcement at the end of the meeting as well, but any 

written testimony that you’d like to have presented at this is welcome. We will record it in as part of the records on this, and we 

will also hold this meeting open for an extra 2 weeks as well. So 

that as you’ve heard testimony from the individuals that are up 

here, and if you’d like to make a public comment on it, a personal 

contact back in, and you’d like to have it entered into the record, 

this meeting will actually stay open for a period of 2 weeks to allow 

for additional comments to be entered into the congressional record 

as well. 

So with that, we will now turn to our first witness, Secretary 

Steve Pirner for 5 minutes. And before I allow Steve to begin, I just 

want to say thank you because you’re one of the guys that a lot 

of the other folks from around the country call the dean of the folks 

that work in the area of environment and natural resources. I 

know that you worked for me for 8 years when I was Governor, and 

we most certainly appreciated your hard work and your professionalism. And I most recently asked if he would come up and testify in front of the entire Environment and Public Works Committee, which he did in DC. And Steve was one of these guys that 

truly understands that DC is perhaps a place that some people like 

to visit. He doesn’t, but he came anyway. And I appreciated that. 

And once again, I’ve asked him for the second time now in less 

than about a month and a half to participate. 

So, Steve, with that, Secretary Pirner, would you please go ahead 

with your statement. And once again, I’d like to limit them to 

about 5 minutes, but I’m not going to hold you to an exact 5-minute 

limit. Please, Steve, go ahead. 
14 

STATEMENT OF STEVE PIRNER, SECRETARY, SOUTH DAKOTA 

ENVIRONMENT AND NATURAL RESOURCES 

Mr. PIRNER. Chairman Rounds, thank you very much for holding 

this hearing here today. My name is Steve Pirner, Secretary of the 

South Dakota Department of Environment and Natural Resources. 

We learned a lot about the Missouri River and flooding in 2011, 

but today I want to touch on some other problems that you’ve already touched upon and present some possible suggestions. I want 

to share with you our perspectives on the surplus water reports 

and reallocation studies proposed by the Corps of Engineers for the 

Missouri River reservoirs and again offer suggestions for improvement. 

To put our issues with these studies into context, remember that 

our people and tribes paid a heavy price for the four Missouri River 

dams in South Dakota. These reservoirs permanently flooded more 

than a half-million acres of our most fertile river bottomlands. 

Many citizens and tribal members were forced from their lands, 

from their homes, and from their communities. The promise of Federal irrigation projects to help offset these losses never materialized. 

Then another payment was extracted from us in 2008 when the 

Corps issued the Real Estate Guidance Policy Letter Number 26 

that you talked about. This policy requires municipal and industrial water users to acquire a water storage contract prior to the 

Corps’ issuing an access easement to the Missouri River reservoir 

for a pump site, but the Corps had no process for issuing the contracts. Therefore the effect of the policy was to place a moratorium 

on easements to the Missouri River reservoirs. 

This moratorium hit South Dakota hard. Out of a thousand miles 

of Missouri River shoreline, only about 100 miles were on the two 

short free flowing stretches in the State. Therefore 90 percent of 

our shoreline became off limits to potential users of the Missouri 

River water. Midland Contracting was one of the first to find this 

out when the Corps told them they could no longer pump water 

used for dust control out of Lake Sharpe. The most vivid example 

was the Corps’ refusing to let another contractor pump water during the 2011 flood. 

To develop a process for Policy Letter Number 26 the Corps 

began Surplus Water and Reallocation Studies under the authority 

of section 6 of the 1944 Flood Control Act and the surplus water 

provisions of the 1958 Water Supply Act. We do not dispute the 

Corps has authorities under those acts, but we strongly dispute the 

Corps’ resulting definition of stored water as being all the water 

within the reservoir boundaries. This new definition, should it go 

unchallenged, creates a monumental change to the law and would 

defeat States’ rights to natural flows that by tradition and by law 

are under the jurisdiction of the States. To better understand natural flows, visualize that reservoirs have stored water sitting on 

top of a river with natural flows passing underneath. This natural 

flow of the water represents water that should be under the jurisdiction of the State. 

States’ rights to natural flows of navigable waters within their 

borders are constitutionally founded and protected in the Equal 

Footing Doctrine. Congress acknowledged this States’ right in the 
15 

first sentence of section 1 of the 1944 Flood Control Act by stating, 

‘‘It is declared to be the policy of the Congress to recognize the interests and rights of the States in determining the development of 

the watersheds within their borders and likewise their interests 

and rights in water utilization and control.’’ As a consequence of 

the doctrine and the enacted law the Corps must acknowledge the 

States’ right to natural flows. 

Another concern with the Corps’ studies is one of equity. The 

Corps has documented the tremendous benefits the reservoirs supply to people throughout the basin— controlled water supplies, hydropower, flood control. Now to require just the upstream States to 

pay the cost through the stored water fees with people in the downstream States enjoying these benefits at no cost is not fair or equitable. As Governor Daugaard wrote to the Corps in 2012, ‘‘To impose all reservoir operation and maintenance costs on upstream 

States alone adds insult to injury.’’ 

To resolve these issues, South Dakota suggests Congress take the 

following three actions: 

No. 1, reiterate that natural flows through the reservoirs exist 

and those flows remain under the jurisdiction of the States. 

No. 2, make permanent the 10-year waiver of the 2014 Water Resources Recovery and Development Act on water charges for contracted surplus water. 

And No. 3, lift the moratorium on pump access easements by rescinding the Corps’ Real Estate Guidance Policy Letter Number 26, 

and allow users who have obtained State water right permits to 

pump water without interference from the Corps. 

I hope this information is useful to the subcommittee. Thank you 

again for the invitation. 

Senator ROUNDS. Thank you for your testimony, Secretary 

Pirner. 

Our next witness is Chairman Harold Frazier. Chairman 

Frazier, you may begin. 

STATEMENT OF HAROLD C. FRAZIER, CHAIRMAN, 

CHEYENNE RIVER SIOUX TRIBE 

Mr. FRAZIER. Thank you, Senator Rounds, for the opportunity to 

be here and to address your committee. I thank you for that. 

My name is Harold Frazier, and I’m the Chairman of the Cheyenne River Sioux Tribe. Our reservation is the size of Connecticut. 

We have two rivers that run through it—the Moreau River and the 

Cheyenne River. Our reservation is home to four bands of the 

Sioux Nation. We have nearly 19,000 members that reside on our 

reservation. Through treaties, executive orders, acts of Congress, 

case law, United States has a unique trust responsibility to protect 

our trust assets and our lands. It’s odd that the Federal Government, through the Corps of Engineers, is destroying our lands and 

our way of life. 

I live 12 miles from the mouth of the Moreau River in the community of White Horse, and about 3 years ago we had a flood along 

the Moreau River. And when you go south, there’s a road runs 

south toward Ridgeview and on into Eagle Butte. That was flooded. 

When you go east along the Moreau River toward Mobridge, at 

about four spots that road was flooded. So the only way out was 
16 

to the west toward Timber Lake, but yet 2 miles out of White 

Horse the water level was right up to the road. So I think that if 

we ever have another flood, where I live will be completely surrounded except for going north horseback. It is a concern of ours 

the way the Corps is managing the river. 

A lot of our problems that come from the flooding of the Moreau 

River are what we call the Promise Bridge. This bridge, the original design was supposed to be 140 feet long, longer than what it 

is, and have an additional 70 feet span on each side of the bridge 

to accommodate the level of water and sedimentation that would 

flow from the Moreau into the Missouri. But in 1960 the Corps, 

through a memo, recommended changes to the design of the bridge 

that shortened the span of it. This was to save the Government a 

mere $100,000. But this bridge, this bottlenecks everything and 

causes flooding upstream on the Moreau River, not only destroying 

fertile agriculture river bottoms, but there’s a cemetery that belongs to the St. Mary’s church that is completely flooded every time 

it floods the Moreau River. 

Another problem is we have a BIA road, Route 3, and it is just 

constantly eroding, caving in, caving in. The BIA moved it to the 

north, but now it continues to cave in. Now it’s right up to the 

fence line. So it ain’t going to take too much longer before that road 

is completely into the river. 

There was a flooding in 1997, and the tribe met with the Corps 

to seek help in remediating the damage caused by the flooding, and 

the Corps’ response was, You have to sue us because we have no 

funds to remediate the situation. So 2003, the tribe and numerous 

individual tribal members filed a lawsuit against the Corps of Engineers. And in September 2014 the tribe met with the Assistant 

Secretary Jo-Ellen Darcy and Steven Kopecky in their office to discuss the pending lawsuit, the flooding, and the need to lengthen 

the span of the bridge, but because of the pending lawsuit Assistant Secretary Darcy would not talk about any settlement options. 

And as far as the bridge, we were told that we would be in contact with officials in the Omaha office to seek solutions, but since 

then we have heard nothing from the Corps about trying to fix the 

bridge. 

We feel that since the Corps built it originally, since the Corps’ 

operation of Lake Oahe is a major factor in our situation, the siltation problem, we believe the Corps has a responsibility to fix this 

situation by removing the silt and widening the distance or spanning between the bridge columns that are in the Moreau River. 

Another issue where—that the Corps has failed the Cheyenne 

River Sioux Tribe is between 2012–2014, an individual south of the 

Cheyenne River dug a trench north of the Cheyenne River. When 

he dug that trench, originally it was 100 feet wide and 2 miles 

long, and his goal was to route the river. And by him doing that, 

you know, not only did he alter our boundaries, but he also took 

approximately about 140 acres of our land. 

Back in the 1990s we were in a lawsuit with Homestake Gold 

Mine because of the mine tailings and so forth coming down into 

our water intake. And since then a lot of the mine tailings and 

sedimentation and things like that have kind of subsided. But by 

this individual digging his trench, disturbing the ground, we have 
17 

had samples through our EPA office that have seen a rise of mercury and other contaminants. We did report it to the Corps. The 

Corps told us in DC that this individual approached them, asked 

for a permit. They denied it, but he went ahead and did it anyway. 

In 1960, when they removed our agency, they replaced a lot of 

our buildings. And one of our buildings is our administration building with the BIA. Right now, a couple years back, we were moved 

out of there because of mold and things like that. And we did talk 

to them about assisting us in any type of way, planning, and so 

forth. They did tell us in Washington that they would help us with 

135,000 and start developing a plan to build a new tribal building, 

but since then we have heard no response from them. 

In conclusion, I want to thank you for the opportunity, and I appreciate any kind of assistance you can to help the Cheyenne River 

Sioux Tribe and all of our members and our residents, because 

there’s a lot of residents that reside on the reservation that are not 

members of our tribe. And I thank you for the opportunity. 

Senator ROUNDS. Thank you, Chairman Frazier. 

Now we will hear from Mr. Jeff Dooley. Mr. Dooley, you may 

begin. 

STATEMENT OF JEFF DOOLEY, MANAGER, DAKOTA DUNES 

COMMUNITY IMPROVEMENT PROJECT 

Mr. DOOLEY. Thank you, Senator. We all appreciate you bringing 

up this issue in this area, in this format. As you can see by the 

turn-out it’s a very important issue to all of us. 

In preparation for this testimony I drew on my experience as 

manager of the community Dakota Dunes that’s right on the Missouri River and my role in the 2011 flood fight. And I also reviewed 

transcripts from two congressional committee hearings that were 

held on this issue along with a Corps document entitled ‘‘Review 

of the Regulation of the Missouri River Mainstem Reservoir System 

During the Flood of 2011.’’ 

I see three major themes that came out of that review. No. 1 is 

improved communication between the Corps of Engineers and the 

stakeholders. As the events that precipitated the 2011 flood unfolded from April through May, there was insufficient communication as to the increasing problem of melting snowpack and plains 

snowpack and the rain events in the upper basin. 

By the time the communications were established the release 

and projections were escalating quickly making it difficult to formulate a response. However, since that time the Corps has taken 

substantial steps to formulate a regimented schedule of conference 

calls during the run-off season with Federal, State, local officials, 

as well as the media and congressional staff to provide updates on 

climate and run-off conditions as well as reservoir releases and 

power generation plants. 

Additionally, during these calls there was time allotted for questions to be posed by each State, by each local jurisdiction, and they 

take a significant amount of time to go through that list and provide that opportunity. Had these calls been in place in 2011 I think 

the local jurisdictions in the State and the stakeholders could have 

asked questions and challenged some of their assumptions they 

made that dictated their management decisions. 
18 

It should also be noted that in 2011 the Corps was very responsive to our needs as far as preventive measures go, and also during 

the recovery phase. And in 2014 this area experienced a large 

flooding event on the Big Sioux River, and the Corps was able to 

reduce releases from Gavins Point Dam to 10,000 CFS, which really helped the water elevation of the Big Sioux, and it created a 

manageable situation in some cases. 

No. 2, assessing and prioritizing of the authorized purposes outlined in the Corps Master Manual. From a citizen’s perspective, the 

conflict of the authorized uses is commonly referred to as a major 

impediment to flood control on the Missouri River. A study entitled 

‘‘Missouri River Authorized Purpose Study’’ was underway prior to 

the 2011 event. As I understand it, that progress has been suspended on the study, that which would have looked at each authorized use and kind of prioritize it and have had it discussed. The 

sometimes conflicting uses can cause a slower response and attention to the flood control. 

Third, improved data collection as it relates to plain snowpack 

and soil moistures. And you mentioned this in your comments during the Corps panel, and while the torrential May rains in the 

upper basin were a major contributor to the record run-off and difficult and maybe even impossible to predict, the snowpack on the 

plains and in the mountains were above average and quantifiable. 

An improved snowpack and soil moisture monitoring system would 

allow better predictions of known precipitation and the resulting 

run-off. 

The need for improved data collection is documented in the Corps 

of Engineers’ post-event review entitled, ‘‘The Upper Missouri 

Basin Monitoring Committee—Snow Sampling and Instrumentation Recommendations.’’ And as you said, section 404 of the 

WRRDA 2014 provides for that to improve that, and no actions 

have been taken. I would encourage Congress to continue to push 

for these improvements and to maybe set some milestones for its 

implementation. 

Also, I’d like to note that after the 2014 Big Sioux River flood, 

local jurisdictions found that data collection along the Big Sioux 

was insufficient to provide accurate water surface elevation projections during that event, and as a result the Dakota Dunes, North 

Sioux City, and Union County partnered to provide the local match 

with USGS to implement three new gauges along the Big Sioux 

River below Akron. Those are in place and are working and are collecting data for a year. So I think that kind of falls under where 

there’s a will there’s a way type subject. So with that, again, I appreciate you bringing this issue up in this format, and I will standby for any questions. 

Senator ROUNDS. Thank you, Mr. Dooley. 

We will now hear from our next witness, Mr. Paul Lepisto. Mr. 

Lepisto, you may again. 

STATEMENT OF PAUL LEPISTO, REGIONAL CONSERVATION 

COORDINATOR, IZAAK WALTON LEAGUE OF AMERICA 

Mr. LEPISTO. Thank you, Senator. Thank you for holding this 

hearing. 
19 

I’m with the Izaak Walton League of America. It’s one of the oldest, most established conservation organizations in the United 

States. We have 43,000 members around the country and 240 chapters. Many of those members live in the States that I work in. I 

live in Pierre, South Dakota, but I work for the Izaak Walton 

League in the States of Iowa, South Dakota, and Nebraska. And 

many of our members hunt and fish and truly enjoy living along 

the river, and the river plays a major role in the lives of many of 

our members. 

The League strives to look for common sense science-based solutions that work with the river rather than fighting against it. 

There’s no question the Missouri is one of the most altered ecosystems on the face of the Earth. The alterations that came as a 

result of the 1944 Flood Control Act created the authorized purposes that others have talked about today are interesting because 

since their inception those authorized purposes have been and will 

continue to be in direct conflict with each other, one of the reasons 

why management of the system is so difficult. 

The Missouri today is far different than the historic river. Thirtyfive percent of the river is impounded in the six reservoirs; 33 percent of it is contained by the artificial navigation channel between 

Sioux City and St. Louis. And with those changes millions of acres 

of the river’s historic aquatic and terrestrial habitat have been lost 

or destroyed. 

The modifications are very significant. The river was shortened 

by more than 120 miles between Sioux City and St. Louis with construction of the navigation channel. These changes destroyed most 

of the braided side channels, the chutes, wetlands, islands, sandbars, backwaters, natural floodplain and riparian forest that historically made the Missouri one of the richest ecosystems on the 

face of the Earth. 

Habitat recovery efforts as have been mentioned are ongoing, but 

the League members believe that much more needs to be done. 

Many areas are worthy and in need of habitat restoration due to 

the high quality recreational, natural, scenic and historic resources 

that they contain. If they were restored, these areas could once 

again provide critical habitat for native fish and wildlife species 

and be a boon for the recreation industry. 

The Corps does face a tremendous management paradox. As 

mentioned, flood control is the only purpose that requires removing 

water from the six reservoirs. All the other seven purposes require 

the Corps to hold onto water. Another vexing management issue 

that we see is that only 53 percent of the basin is regulated by the 

reservoirs. That leaves nearly half the basin unregulated and subject to regular flooding irregardless of what’s in the Corps’ annual 

management plan or any of their management actions. 

In the past we’ve urged the Corps to increase their communication efforts about this fact so more people know that the Corps 

doesn’t and cannot control run-off in the entire basin, and despite 

their best efforts periodic flooding will always occur on the lower 

river. 

With that we continue also to urge the Corps to always rethink 

rather than just rebuild man-made flood control structures that 

have in the past repeatedly failed. We support levee setbacks and 
20 

additional river widening projects that would give the Missouri 

more room to roam in the lower river. This would provide additional flood risk reduction and by reducing the flood stage during 

high flow events. 

The Missouri River Master Manual called for a 3,000-foot floodplain from Sioux City to Kansas City and a 5,000-foot floodplain 

from Kansas City to the mouth. We’ve urged the Corps to work 

with local governments on new zoning ordinances to implement 

this wider floodplain which would save tax dollars and produce a 

much healthier river. The incredible dynamics the basin has have 

been discussed at large already today. The record run-off in 2011 

resulted in that prolonged flood with massive damage throughout 

the basin, but that was quickly replaced by extreme widespread 

drought in 2012. These dramatic swings demonstrate the urgent 

need for a much more flexible management approach by the Corps 

and a much more adaptable management system to what is the actual hydraulic conditions in the basin. 

We support updating the master manual that would allow additional in-season adjustments that would accurately match the actual run-off as each year unfolds. 

Critically important water management decisions that impact 

the entire basin should not follow a locked-in-stone policy that’s set 

months in advance of when the actual run-off conditions are realized. 

The current review policy of the water and storage happens only 

in March and July. That determines the navigation support and 

the navigation season length. It doesn’t adequately address the 

needs of the residents of the basin. Once water, which we feel is 

the most precious and fragile resource in the basin, is released 

from the reservoir system, that water is gone forever. The League 

supports a comprehensive review of the eight authorized purposes 

to determine what’s best for the American taxpayer and for the 

needs of all the people in the basin and for the river itself. 

The river, in essence, is still operating on a 70-year-old business 

plan, and that review is urgently needed and long overdue. 

The river today is vastly different than what was envisioned 

when the Flood Control Act was drafted in 1944. Some purposes 

have met or greatly surpassed the original expectations of that Act. 

Recreation, for example, exceeds estimates by more than 10 times 

today, while other purposes have fallen way short, meeting only a 

fraction of their original expectations. A review would streamline 

river operating expenses and we feel would bring the Missouri 

River into the 21st century. 

To many members of the Izaak Walton League the Missouri 

River is a national treasure and one of the Nation’s most unique 

rivers. We feel it’s an incredible economic engine, that if it’s managed correctly for multiple uses, including fish and wildlife and outdoor recreation, the river would create even more jobs, more tax 

revenue, and additional recreational opportunities for families 

across the Nation. 

I thank you for your time and for holding this hearing. 

[The responses of Mr. Lepisto to questions for the record follow:] 
21 
22 
23 
24 
25 
26 

Senator ROUNDS. Thank you, Mr. Lepisto. 

I’ve got a few questions, and I’ll just work my way down the line 

and around here, and then we’ll kind of go from there. 

Mr. Pirner, Secretary Pirner, I would like to ask you about Policy 

Letter Number 26. You stated that the Corps has no process for 

issuing water storage contracts, and the result has been a moratorium on access easements to the Missouri River reservoirs. I understand that there have been applications to the Corps for access 

easements. Is the Corps responsive to these applications, or has the 

Corps been uncommunicative with the State on these issues? 

Mr. PIRNER. Senator Rounds, I think the Corps has essentially— 

they’ve communicated their denial of those easement requests, 

pretty much. The only one that I know of that’s still in play is the 

city of Pierre recently requested an easement access to put in potentially some pumps so that they could irrigate some of their 

green space, parks, and so on, and the capital campus that the 

Corps did respond back to and said they wanted more information. 

Since that time the city has responded with additional information, 

and that’s where that matter lies. 

Senator ROUNDS. So as of yesterday they had not gotten a response back yet? 

Mr. PIRNER. That would be my understanding, correct. 

Senator ROUNDS. What impact does the Corps’ unwillingness to 

issue access easements have on municipal and industrial water 

users? 

Mr. PIRNER. Senator, the way—as I said during my testimony, 

essentially anybody, any new user of Missouri River water has 

been pretty much shut off. And the reason, again, is because in 

South Dakota, we’ve got four reservoirs. Just about all of our shoreline on the Missouri River is in one of those reservoirs. And so by 

not draining an access easement to the reservoir, we’re shut off. 

The only place that we don’t have a reservoir would be those two 

free flowing stretches which are down in this part of the State. 

Senator ROUNDS. I think just in terms of laying out the frustration the folks in this part of the country get once in a while, I had 

anecdotal information from a contractor who actually, during the 

flood of 2011, they were trying to do some work on the boat ramp, 

which was above the reservoir. And the boat ramp enters—it’s on 

Corps land. And my understanding is is that they simply wanted 

to get water out of the flooding Missouri River in order to do the 

compression and so forth on the boat ramp, and they were denied 

and told to go around down below the dam and get it out of the 

free flowing portion of the river. Is that correct? Am I correct on 

that? 

Mr. PIRNER. That would outline relatively closely with the example that we heard as well. 

Senator ROUNDS. Doesn’t sound like South Dakota common sense 

to me. 

Mr. PIRNER. No, sir. 

Senator ROUNDS. Thank you. Secretary Pirner, the Surplus 

Water Reallocation Studies that are being undertaken by the 

Corps, the Corps is proposing to change the definition of stored 

water as being all the water within the reservoir boundaries. How 

does this definition run contrary to the historical constitutional in-
27 

terpretation of States’ authority regarding water rights? Are you 

aware as to why the Corps is making this change? 

Mr. PIRNER. No, sir, we are not. As I talked about in my testimony, there’s really two legal bases for the States having rights to 

what I call natural flow of water. First is that Equal Footing Doctrine. When every State has been admitted to the Union, every 

State has been granted the same rights by Congress. One of those 

rights is the rights to the navigable waters and groundwater within 

its borders. And then as I talked about in the section 1 of the 1944 

Flood Control Act, this very issue, if you go to John Guhin’s South 

Dakota Law Review, I think you knew John, he was an Assistant 

Attorney General, did a lot of work on some of the litigation that’s 

been pursued over the years with the Missouri River. He’s put together a probably—he’s passed away now, but this is probably one 

of the most complete reference documents on the ‘‘Law of the Missouri’’ is what he titled it. And he talks in there about this very 

issue about States’ rights being a part of the 1944 Flood Control 

Act and the amendments that were made to protect those rights. 

And again, section 1 of the 1944 Flood Control Act talks about specifically that Congress recognizes the interest and rights of the 

States in the development of the watersheds within their borders, 

and likewise their interest in rights in water utilization and control 

which to me is directly speaking to the prior—or the appropriation 

process that we use here in South Dakota to allocate rights to the 

use of the water to the public. 

So I think there’s a clear basis for the State to have the right 

and the jurisdiction over the natural flow of the Missouri River; the 

definition that the Corps has proposed through these studies 

doesn’t mention natural flow. Basically it says it’s all the water. 

And we strongly, strongly disagree with that because we think 

that—I mean, we’ve been issuing water rights out of the Missouri 

River and the reservoirs for years. And another Federal agency, the 

Bureau of Reclamation clearly, clearly acknowledges—they manage 

Federal reservoirs as well. They clearly acknowledge the States’ 

rights to natural flows. All of a sudden the Corps comes out with 

this new policy that natural flow is absent from the discussion, and 

we’re going like, Where is our water? Where did it go? 

Senator ROUNDS. By reference, we will also acknowledge and 

enter into the record Mr. Guhin’s work—— 

Mr. PIRNER. That would be an excellent addition, yes, sir. 

[The referenced information was not received at time of print.] 

Senator ROUNDS. Thank you. 

Chairman Frazier, your testimony says that you filed your lawsuit against the Corps in 2003 and that it has since been referred 

to the U.S. Department of Justice Environment and Natural Resources Division. Is it correct that this lawsuit has now been pending for over a decade, that the Corps has made no progress in attempting to settle this issue? 

Mr. FRAZIER. Yes, that’s correct. The only settlement offer that 

they offered to us was they wanted us to grant them a flowage 

easement which a lot of our members disagree with because they 

shouldn’t have a right to flood our lands. You know, and like I 

mentioned, and what I’ve seen living along the Moreau River all 

my life, you know, it’s just slowly going further, further back west 
28 

into the Moreau River. And I recall at one point I watched a documentary on a dam such as the Oahe Dam, and you know, I know 

the purpose of the Flood Control Act was to control flooding downstream, but it says as years went by—goes by, probably 40, 50 

years, these dams are going to start causing problems upstream. 

And I think we’re at that stage now. You know, at Cheyenne River 

we got, you know, a lot of our—I just seen a lot of good hay bottoms just eroding away, just going into the river, river widening, 

a lot of siltation. It’s just a big problem, but . . . 

Senator ROUNDS. Chairman, on the Moreau, for those folks that 

aren’t familiar with this area, it’s an area which flows on the west 

side of the Missouri River into the Missouri River, and the Moreau 

is one of the primary tributaries into the Missouri River there. But 

the dam—or I guess I can almost call it the dam, but it’s the Promise Bridge that goes across Moreau. I’ve been there. I’ve seen it. 

And what they’ve done is is they’ve moved out, they’ve shortened 

the span. And in shortening the span they had to get to where the 

span would begin, and basically what they’ve created is a semi-dam 

there where the water can’t get through the trestles underneath 

the dam, and so it backs up into the areas that you identified, including the cemetery. And my suspicion is as close-knit as everybody is in our parts of the country, you probably have relatives 

that are buried there as well. If nothing else, if we could get the 

Corps to work to resolve the issue surrounding the Promise Bridge 

and to get that area resolved, so that we didn’t have water backing 

up behind it, that would make a major cause of concern for the 

members of your tribes, they would at least see something coming 

from the Corps to try to eliminate some of the problems that are 

being caused by that construction project. Fair enough? 

Mr. FRAZIER. Yes. Yes. If we can get that bridge resolved, expanding it or cleaning some of that siltation near it, I think that 

would greatly improve the lives, you know, of our people along the 

Moreau River. 

Senator ROUNDS. Thank you, Mr. Chairman. 

Mr. FRAZIER. Thank you. 

Senator ROUNDS. Mr. Dooley, in your testimony you say that the 

conflict of authorized uses is commonly referred to as—let me slide 

back in a little bit because I think part of what you suggested here 

today was truly a chance to find some common ground with the 

Corps. And what you indicated is is that after the flood in 2011 

that you found that the Corps stepped in and that they were responsive to the emergency needs at that time. Fair statement? 

Mr. DOOLEY. That’s fair. 

Senator ROUNDS. OK. Since that time you’ve also indicated that 

the communications that have been provided have been helpful in 

terms of maintaining the ability to get advice back and forth. And 

have they been responsive to the concerns that you and the community down here have laid out to them? 

Mr. DOOLEY. Thank you, Senator. You know, my experience with 

the Corps as it relates to Dakota Dunes is we’ve always been able 

to get the information we need. These conference calls are a really 

great forum for them to put out the information that they’re going 

off of, and it allows the stakeholders, which there’s a lot of expertise throughout the stakeholder community, allows them to ask 
29 

questions and challenge some of the things that the Corps are 

doing with the river. So in that aspect I think the communication 

has been very good. The question and answer part of those conference calls are good. And outside of that, any questions that I 

have regarding the Missouri River I can pose to Ms. Farhat and 

her staff, and I’ve always been able to get a good response on that. 

Senator ROUNDS. OK. How about when we talk about the suit 

and the issues surrounding that; you indicate that you put together 

a team here that actually helped to provide for the hydrological metering information, and so forth. Can you share a little bit about 

how you worked that, and did you need permission from anyone to 

do that? 

Mr. DOOLEY. Well, after the 2014 Big Sioux event, the State 

Lieutenant Governor Michels came down, and we all met and compared notes, and it became apparent to us that one of the problems 

were the projected levels of the Big Sioux River were off. And as 

we looked a little bit further, it came to our attention that one of 

the reasons is there weren’t enough river gauges on the Big Sioux 

River below Akron, I believe. So we talked about it between the 

communities of North Sioux City, Dakota Dunes, and Union County, and worked with the USGS to get those installed and operational. And to do that we had to pay roughly half of installation 

costs, capital costs, and now we pay roughly half of the operating 

costs moving forward here in about a year. 

Senator ROUNDS. OK. 

Mr. Lepisto, according to the South Dakota Game, Fish and Parks, recreation on the Missouri River provides more than $100 

million in economic benefit to the Dakotas and Montana. In your 

testimony you say that more people should have increased access 

to the river for recreation such as hunting and fishing as well as 

increased educational opportunities for families. What are the recreational access issues and limitations that face recreational users 

seeking to utilize the river today? 

Mr. LEPISTO. Senator, as you’re well aware in your 8 years as 

Governor of the State of South Dakota, the upstream States, during periods of extended drought, have spent millions, literally millions of dollars chasing water to provide recreational access on the 

reservoirs in South Dakota, Nebraska, North Dakota, and Montana 

when the levels are down for an extended period of time. The 

ramps either have to be greatly extended, which in some areas is 

not physically possible. So then those boat ramps and access facilities have to literally be relocated to an area that would facilitate 

recreational access near that area, but you have to put in the parking area, everything that goes with it, all the infrastructure that 

goes with it. When the reservoirs come up, all that work and 

money spent is literally under water again. So a management philosophy that would take that into consideration and make sure that 

the reservoirs by their nature go up and down, and with the management practices they do go up and down, but it’s the drastic 30- 

and 40-foot drops in the big three; Lake Oahe, Lake Sakakawea, 

and Fort Peck in Montana that cause these problems and prohibit 

recreational access. 

We have the same issues with recreational access, the lack of facilities for people to get to the river and on the river below Gavins 
30 

Point. I mentioned it in the written testimony I submitted that the 

Nebraska Game and Parks Commission and the Missouri Department of Conservation did a study on recreational spending from 

Gavins Point to St. Louis, and it came up with about $68 million 

in annual recreational spending. With more access and more facilities on the lower river, I think you could put at least a one in front 

of that 68 million and have that much more recreation on the lower 

river if those facilities and access sites would be available. 

Senator ROUNDS. Mr. Lepisto, you stated in your testimony that 

we should consider non-structural alternatives to levees. Can you 

tell us what these alternatives might be and how they would differ 

from the current levees used by the Corps? 

Mr. LEPISTO. As I mentioned, Senator, in the testimony that the 

lower river is struggling to reconnect itself to its floodplain. If you 

look at the old maps through USGS or the Missouri River Institute 

at the University of South Dakota and see where the Missouri 

River used to run and the old side channels, chutes, backwater 

areas, the oxbow lakes, all of those have been cut off through the 

construction and ongoing maintenance of the bank stabilization 

and navigation project. We’ve been striving for years through 

this—the program I work with with the Izaak Walton League to 

encourage more reconnection, hydraulic connection to those old 

areas where those areas would be of benefit for the fish and wildlife species, also a boon for recreation, but they’ll provide human 

benefits because that’s going to take the crest off of the high-flow 

events. It will give floodwaters a place to go during high-flow 

events and so the human impact would be positive. We not only 

have increased recreation, increased fish and wildlife habitat, but 

we would have additional lower river storage areas for floodwaters 

during times of high flow or high run-off events. 

Senator ROUNDS. I have one more question. I’m going to begin 

it with Secretary Pirner, but I would also open it up for all of the 

panel as well. Secretary Pirner, a 2014 GAO office report concluded 

that the Corps would benefit from increased and updated soil moisture and snowpack monitoring program to help the Corps better 

predict potential flood conditions. Do you feel that the increased 

monitoring would be enough to prevent future flooding, or should 

the Corps do more to prevent future floods from occurring? 

And once again I would open this up first of all to Secretary 

Pirner and then anyone else who would like to have a thought in 

terms of the monitoring systems that we thought we were in the 

middle of working on, and what we’ve heard today has basically 

not gone very far so far. This is now 2016, and the flood occurred 

in 2011. The authorizations were completed in 2014. But Secretary 

Pirner, your thoughts on the monitoring system and its need. 

Mr. PIRNER. Senator, I think the thoughts that went into that 

language in the 2014 WRRDA bill, I think the thoughts that went 

into that monitoring system that was proposed by Congress and 

approved by Congress will do the job, are adequate. I think what 

remains to be done, as you’ve pointed out today, now we need to 

do it. So the thoughts are there, and they’re right, and they’ll work, 

but now we need to put those thoughts into action. 

Senator ROUNDS. Anyone else? Mr. Dooley. 
31 

Mr. DOOLEY. Senator, the major data component I think for managing the Missouri River is trying to figure out how much water 

ends up running into it, and to do that we need to make sure that 

the Corps has the adequate data available and the most comprehensive data available. I think from my perspective these measuring tools are absolutely vital for the best management practices 

of the Missouri River, and to try to at least minimize or eliminate 

flooding. I don’t think you’ll ever eliminate it, but to minimize flood 

impacts in the future. So someone needs to really make sure that 

this is followed through on and that that’s implemented. 

Senator ROUNDS. Mr. Lepisto. 

Mr. LEPISTO. Senator, ever since the 2011 flood the League in its 

comments to the Corps at their twice annual, annual operating 

planned meetings, in written comments and also at the meetings, 

we’ve urged them to as quickly as possible implement a monitoring 

system working with other State and Federal agencies so that 

knowledge and that data can be gathered accurately and quickly, 

and then most importantly shared with the stakeholders and residents of the basin so we know what the moisture content is of the 

snowpack that’s on the plains, and especially the water content of 

the snow and the mountains. And we are as disappointed as you 

are that 5 years after that initial attempt to have this done we’re 

still waiting for it to be implemented. So we would urge Congress, 

and we have urged Congress in letters on the annual budget request to provide the funding for those measuring devices and for 

that technology. To date the funding has not been there. 

Senator ROUNDS. Mr. Chairman. 

Mr. FRAZIER. Yes. Thank you. I think it would be a good thing 

for them to implement. I mean, that way there we could be prepared for what’s going to be ahead of us. Kind of like what I see 

is what you said about, you know, the community of Fort Pierre, 

so we’re ready to take whatever measures if it appears there’s 

going to be flooding. And I agree with Mr. Dooley here that that’s 

something we probably can’t ever control, but, you know, at least 

minimize it and be prepared if it does happen. So I think that it 

is crucial for the Corps to have these monitoring devices implemented. I think it’s time for them to start taking action. Maybe 

quit building a bomb for Iraq and use that money to pay for this. 

Senator ROUNDS. Gentlemen, I just want to say thank you very 

much for you taking your time today to come down here to participate with us in this—in this hearing. Once again, I’d like to thank 

all of our witnesses for taking this time. The record will be open 

for 2 weeks which would bring us to Thursday, April 14th. 

Let me close with this: I’ve heard some things today that I—that 

I had not heard before. I was not aware that the Promise Bridge 

had been under item of discussion for as long as it has been, for 

more than a decade. I know we did not get into the issue of the 

tribal building in Eagle Butte, but it was—originally it was moved 

from down on the floodplain, and when the Oahe Reservoir was 

backing up, it was one of the areas which was moved, and the 

Corps built a different facility for you up in Eagle Butte, which was 

then identified as having mold in it. It was not usable. You had to 

move out of that. And I know you’ve been working for some time 
32 

now to find a way to coordinate with other Federal agencies to be 

able to put together other resources to have a gathering facility. 

Once again, you’ve been frustrated, Mr. Chairman, with that. I 

will follow up with you. That is part of our written record, although 

we did not take much time to talk about it here publicly, but it is 

part of the written record. We would be happy to work with you 

on finding a way around that issue. 

Mr. FRAZIER. Thank you. 

Senator ROUNDS. The funding request, which we’ve talked about 

here, I was disappointed to find out that, No. 1, that there was, according to the Corps today, a lack of funding for this. I thought we 

would have studies completed and recommendations being made 

after this event in 2011. To a lot of us it’s a very serious issue that 

occurred then. 

And at that time I think the Corps feels like they were off guard 

and their response was is that they didn’t have the information 

available to make an accurate decision at the time and that it 

caught them off guard because a lot of it was late arriving moisture 

and that they’ve indicated that if they had these additional monitoring systems in place that they could prevent that. 

Same thing could have occurred this year, now 5 years later. I 

think it shows that we need to expedite the process of getting the 

review completed. 

It surprises me that they did not include it in their request to 

the President’s budget again this year. If that was the case, most 

certainly that means that we will take it under consideration and 

find out what it is they need, but until they get a request made, 

until they get an estimate of what they’ve got to do with the proposal, it’s pretty tough to put the money in the budget it would 

seem to me. So the first thing is is to get the doggone report done. 

And after 5 years I think it should be done. 

So we’re going to put some pressure on the Corps, and we’re 

going to expect some time dates. One thing I’ve learned in Washington, DC, folks, is is that to a lot of folks in Washington the result is is when you get a report or the result is is when you get 

a committee hearing rather than getting an actual something done. 

And results are what counts. And I can just share with you that 

there is a growing number of individuals who work within the U.S. 

Senate that understand that people of this State, people of this region expect results, not just studies. And you begin with a study, 

but you’ve got to have the results. And I think that’s one thing that 

we will commit to you is is that we’re going to get some results, 

one way or another. That’s our job. 

With that, I will repeat that the record will be open for 2 weeks, 

which brings us to Thursday, April 14th. Those individuals who are 

out here that have heard something that they would like to comment on, your written comments are welcome, and you do have 2 

weeks in which to provide them to us. Members of our staff are up 

here and around the room; touch base with them. They will give 

you an appropriate way in which to get those items entered into 

the record. This hearing is adjourned. 

[Whereupon, at 2:35 p.m. the hearing was adjourned.] 

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