Washington, D.C. (December 16, 2016) -— The Department of the Army, U.S. Army Corps of Engineers (USACE), released and is seeking comment on a proposed rule to update and clarify its policies governing the use of USACE reservoir projects for domestic, municipal and industrial water supply pursuant to Section 6 of the Flood Control Act of 1944, 33 U.S.C. § 708 (Section 6), and the Water Supply Act of 1958, 43 U.S.C. § 390b (WSA).
Specifically, USACE proposes to define key terms under both statutes and to respond to issues that have arisen in exercising these authorities, in order to take into account court decisions, legislative provisions and other developments. The proposed rule is intended to enhance USACE’s ability to cooperate with state and local interests in the development of water supplies in connection with the operation of its reservoirs for federal purposes as authorized by Congress, to facilitate water supply uses of USACE reservoirs by others as contemplated under applicable law, and to avoid interfering with lawful uses of water by any entity when USACE exercises its discretionary authority under either Section 6 or the WSA.
USACE intends by this rulemaking proposal to initiate a positive dialogue with stakeholders on these important issues, and to promote program certainty and efficiency by ultimately establishing a uniform understanding of Section 6 and the WSA, and the range of activity authorized thereunder. The release of the proposed rule follows through on USACE’s commitment to establish clearer and more consistent policies in this area, in cooperation with the public.
Purpose of the proposed rule
The proposed rule seeks to clarify USACE understanding of the congressional intent behind Section 6 and the WSA; define key statutory terms; more clearly delineate the authority conferred under each statute; and establish policies that would improve efficiency and coordination with states, federal agencies and other stakeholders regarding water supply uses of USACE reservoirs. The proposed rule would also explain the USACE approach to important policy questions that have arisen nationwide, including the pricing of surplus water agreements under Section 6, the reallocation of storage under the WSA, and accounting of storage usage and return flows under WSA agreements, and would solicit public input and comments on those subjects.
The rule would also clarify and simplify processes for approving and entering into water supply agreements at USACE reservoirs, and includes procedures for coordinating with states, tribes and other federal agencies to ensure that water rights are protected and the views, expertise and prerogatives of others are taken into account.
The overall intent of the proposed rule is to enhance USACE’s ability to cooperate with interested parties by facilitating water supply uses of USACE reservoirs in a manner that is consistent with the authorized purposes of those reservoirs, and does not interfere with lawful uses of water under state law or other federal Law. The proposed rule would apply only to reservoir projects operated by USACE, not to projects operated by other federal or non-federal entities.
The proposed rule is intended to ensure that USACE carries out its authority under Section 6 and the WSA in a manner that does not interfere with state, tribal or other water rights, and that recognizes related responsibilities and authorities under the Clean Water Act, Endangered Species Act, National Environmental Policy Act, and other federal law. The proposed rule would acknowledge that when USACE acts pursuant to either Section 6 or the WSA, USACE does not issue, sell, adjudicate or allocate water rights for domestic, municipal, industrial or other consumptive uses. Rather, under both statutes, USACE makes water in a USACE reservoir available for water supply use by others. These users are exercising their separately derived water rights, and they bear the sole responsibility to acquire and defend any water rights necessary to make withdrawals, in accordance with state or other applicable law.
Features of the proposed rule
Key features of the proposed rule include the following:
- Explanation of the purpose and scope of the authority conferred under Section 6 and the Water Supply Act, including the water supply uses that may be accommodated, and statutory limits on USACE’s authority to include storage for water supply
- Definitions interpreting key statutory terms, including “surplus water”
- Pricing methodologies for surplus water contracts under Section 6, and for water supply storage agreements under the Water Supply Act
- Provisions to simplify and streamline USACE administrative processes for authorizing surplus water withdrawals
- Provisions to clarify the amount of water that may be withdrawn under water supply storage agreements and procedures to account for water supply uses
- Provisions to ensure coordination of proposed water supply actions with states, tribes, federal agencies and the public
The proposed rule is administrative in nature and applies only to USACE actions pursuant to Section 6 and the Water Supply Act, not under any other authority. It would apply prospectively and only to reservoir projects operated by USACE, not to projects operated by other federal or non-federal entities. It would not impose requirements on any other entity, alter existing contractual arrangements at USACE reservoirs, or require operational changes at any USACE reservoir.
USACE encourages all interested persons to carefully review the preamble and the proposed rule and to offer comments for consideration. USACE looks forward to a constructive dialogue with all interested stakeholders.
The public comment period on the proposed rule lasts for 60 days and ends February 14, 2017. The proposed rule, along with instructions for submitting comments, is available at www.regulations.gov, Docket ID number COE-2016-0016.