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1065 rr- 1II\llllAKITA 1'111 WIIIIIIUIIIIII'J lIismarck 68;;06 a.rlll dakola . DOO easl ".ale.itrd 701- 22'1- 27&0 January 12, 1977 Mr. John Neuberger, Chairman Missouri River Basin Commission Suite 403 10050 Regency Circle Omaha, Nebraska 68114 RE: SWC Project #1569 Dear Mr. Neuberger: This is in response to your request for comments concerning the Federal policy in marketing water from the Missouri River main stem reservoirs. The 1944 Flood Control Act and other federal legislation vests the Secretary of the Army and the Secretary of the Interior with certain powers and responsi- bilities concerning the Missouri River. Subsequently, both secretaries have been involved in a dispute concerning who has the authority to market water from the main stem reservoirs. The original February 24, 1975, MOU and the December 3, 1976, draft Supplemental MGU are attempts to resolve the dispute between the two secretaries, but no more. 1he North Dakota constitution and 1itle 61 of the North Dakota Century Code pro- vide that the water within the boundaries of the state belongs to the state and is subject to appropriation for beneficial use. It is recognized, however, that this declaration must be qualified b~ inter alia, the Winters Doctrine and federal legislation enacted pursuant to the several applicable clauses of the United States Constitution. After considering these factors, it is still my opinion that the State of North Dakota and the United States, as separate independent sovereigns, have, under present law, certain separate and independent powers over the Missouri River. For example, I have no reservations that the United States can exercise control over certain actions on the Missouri pursuant to legislation such as the Rivers and Harbors Act of 1899, the Flood Control Act of 1944, and the Federal Water Pollution Control Act of 1972. Similarly, I have no reservations that the State of North Dakota can exercise legitimate control over the appropriation of water from the Missouri River. Because of the separate and independent jurisdictions, the United States could not authorize industry to appropriate water from the Missouri River, nor could this state grant a section 10 permit for the diversion facilities in the river.