	Introduction

Various water supply shortages and greater demand for water supply related to energy development projects have brought increased attention to disputes over the control of water resources across the country. Using Lake Sakakawea as an example, this report analyzes the legal authority of the Corps to charge for stored surplus water. It also analyzes state authority over water within state boundaries and discusses the relationship between federal and state authority, including examples of congressional actions that have addressed competing federal and state roles regarding water resources. Authorization of Garrison Dam

Congress authorized the Corps to construct various federal water projects along the Missouri River, including the Garrison Dam/Lake Sakakawea Project in North Dakota, in the Flood Control Act of 1944. The Corps would enter surplus water agreements with applicants for additional water supply for a term of five years, which would be renewable for an additional five-year term. Constitutional Authority for Water Storage at Federal Water Projects

The Corps has broad constitutional authority for its water projects. Under the 1944 FCA, the Corps may contract with other government or private parties for the temporary use of surplus water from its projects. State Ownership of Water Within Its Boundaries

States in the Missouri River basin have objected to the Corps' plan to charge a fee for surplus water stored at its reservoirs. North Dakota, in which Lake Sakakawea is located, has asserted ownership of the waters flowing within the state boundaries, claiming that charging for access to that water while it is stored in a Corps' project violates that legal right. For example, Section 8 of the Reclamation Act of 1902 requires the Bureau of Reclamation (Reclamation) to conform with state water laws "relating to the control, appropriation, use, or distribution of water.... " The Supreme Court has explained that Section 8 "requires the Secretary to comply with state law in the 'control, appropriation, use or distribution of water'" by a federal project, confirming that Reclamation must acquire water rights for water it impounds at its water projects in various states (as had been the agency's practice). The Corps' statutory authorities related to water storage arguably may indicate that Congress intended to protect the states' ability to administer water rights under state law to some degree despite the Corps' use of the water. On the other hand, it may also be argued that the Corps' constitutional authority over water stored at its projects extends only to the amount of water necessary to meet the purposes of that project and not to any surplus water.
Various water supply shortages and greater demand for water supply related to energy development projects have brought increased attention to disputes over the control of water resources across the country. In particular, domestic on-shore unconventional oil and gas development, such as hydraulic fracturing, has caused rapid growth in freshwater demand. To accommodate water supply requests in the Missouri River Basin, the U.S. Army Corps of Engineers (Corps) has proposed the use of surplus water from its Garrison Dam/Lake Sakakawea Project in North Dakota. The Corps' proposal would allow it to enter into five-year contracts to supply surplus water for a fee, which will be set through administrative rulemaking. North Dakota and other states have objected to the Corps' proposal as a violation of their constitutional right to water flowing within their borders, arguing that the Corps cannot require payment for water that the state owns.
Although the legality of the Corps' charging for surplus water storage at its facilities has not been litigated specifically, the Corps' constitutional authority over operations at its reservoirs is generally very broad. Additionally, Congress has authorized the Corps to charge for surplus storage at federal projects such as the Garrison Dam/Lake Sakakawea Project. Of course, statutory approval of an action that may interfere with state sovereignty does not connote constitutionality. Other provisions within the Corps' statutory authorities arguably may indicate that Congress did not intend to infringe upon state sovereignty over water rights within its boundaries. While it appears that the Corps has broad authority to impound waters owned by the state for the purposes of a particular project without necessarily acquiring water rights under state law, it may be argued that surplus water, which is not used for any of the authorized purposes, is beyond the control of the Corps. However, the viability of such an argument is unclear, given the lack of legal precedent on the issue.
This report addresses the legal authority of the Corps to charge for surplus water stored at its facilities. It analyzes the constitutional and statutory authority of the federal government to operate federal water projects, specifically Lake Sakakawea, along the Missouri River. It also examines the nature of states' claims of ownership of waters within state boundaries. Finally, the report discusses the relationship between federal and state authority, including examples in which Congress addressed competing federal and state roles.