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The Corps is updating and clarifying the policies governing the use of its reservoir projects for domestic, municipal, and industrial water supply pursuant to the Flood Control Act of 1944 section 6, 33 U.S.C. section 708 (section 6), and the Water Supply Act of 1958, 43 U.S.C. section 390(b)(WSA). Rules for the use of storage space in Corps reservoirs for water supply are intended to update existing water supply policies and practices which are generally set forth in an internal publication, Engineer Regulation (ER) 1105-2-100, Planning Guidance Notebook (Apr. 22, 2000). This guidance has not been updated to reflect recent legal opinions, judicial decisions, and legislation affecting Section 6 and the Water Supply Act, does not fully articulate the Corps’ understanding of the differing Congressional intent behind the two statutes, and does not clearly define the Corps facilities to which the statutes apply, or the types of water uses, that can be accommodated under Section 6 and the Water Supply Act.. This revision supports a recommendation of the DoD Regulatory Reform Task Force.

Statement of Need:

The Corps is updating and clarifying its policies governing the use of its reservoir projects for domestic, municipal, and industrial water supply pursuant to section 6 of the Flood Control Act of 1944 and pursuant to the Water Supply Act of 1958. The Corps intends through this rulemaking to explain and improve its interpretations and practices under these statutes. The rule is intended to enhance the Corps' 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 Corps reservoirs by others as contemplated under applicable law, and to avoid interfering with lawful uses of water by any entity when the Corps exercises its discretionary authority under either section 6 of the Flood Control Act of 1944, or the Water Supply Act.

Summary of the Legal Basis:

Section 6 of the Flood Control Act of 1944 authorizes the Secretary of the Army to make contracts with States, municipalities, private concerns, or individuals, at such prices and on such terms as [the Secretary] may deem reasonable for domestic and industrial uses for surplus water that may be available at any reservoir under the control of the Department of the Army, 33 U.S.C. 708. The Water Supply Act provides that storage may be included in any reservoir project surveyed, planned, constructed or to be planned, surveyed or constructed or both, by the Corps to impound water for present or anticipated future demand or need for municipal or industrial water, 43 U.S.C. 390b(b).

Alternatives:

The Army considered two alternatives: (1) a no-action alternative and (2) revising the Corps’ policies implementing section 6 of the Flood Control Act of 1944, and the Water Supply Act.

Anticipated Costs and Benefits:

This rule is not expected to have a significant economic impact. It would not change the methodology by which the cost of Water Supply Act storage agreements is determined. It establishes a new pricing methodology for surplus water contracts, under which users would be charged only for costs, if any, incurred by the Corps in making surplus water available. The costs incurred by the Government and costs charged to users for surplus water withdrawals are not expected to be significant.

Risks:

This rule is expected to reduce risks to public health and the environment by facilitating water supply uses of Corps reservoirs by others as contemplated under applicable law, while avoiding interference with lawful uses of water by other entities. This rule is also expected to reduce risk by clarifying existing policies of non-interference with water rights issued by the states or other permitting authorities.