Army Corps Told to Reduce Missouri River Flows

ST. PAUL, Minnesota, August 5, 2003 (ENS) - A federal judge restated late Monday the U.S. Army Corps of Engineers' obligation to comply with a previous ruling to reduce water levels in the Missouri River in order to protect endangered species. But the judge did not impose penalties on the agency for non compliance and the legal battle over the Corps' management of the river's water flows is far from over.

In his ruling, Judge Paul Magnuson of the U.S. District Court for Minnesota dismissed the Army Corps' legal pretext for maintaining higher flows.

Magnuson wrote "... at this time the Corps is not subject to conflicting obligations, because the only injunction in effect is the D.C. court's injunction requiring lower flows."

That injunction was ordered on July 12 by U.S. Judge Gladys Kessler of the U.S. District Court for the District of Columbia. Kessler, responding to a lawsuit by a coalition of 10 conservation groups, who contend that high water flows during the summer have a negative impact on endangered species.

The Army Corps has refused a court order to lower water flows from Gavin's Point Dam on the Missouri River. (Photo courtesy U.S. Army Corps of Engineers)

The 2002 ruling found that the Army Corps had an obligation to keep flows high enough to support the river's barges.

On July 22, Kessler cited the agency and the secretary of the Army in contempt and told the Corps it would face fines of $500,000 a day if it did not lower the water flow by Friday.

The following day the Nebraska judge who made the 2002 ruling said she would not hold the Corps in contempt of that ruling if the agency moved to resolve the legal controversy.

It all landed in Magnuson's court on July 24, when a federal judicial panel determined that the multiple cases involving the Corps and the Missouri River should be consolidated and moved to his court. He immediately stayed the contempt order for two weeks.

In his ruling Monday, Magnuson said that stay would remain in place until he has reviewed documents on the contempt of court proceedings. The judge says that he has not yet received these documents and records from the District Court for the District of Columbia.

"Absent this information, the court simply cannot enforce a procedural order that threatens such severe sanctions," Magnuson wrote. "Thus, the contempt order will continue to be stayed."

Magnuson has ordered the parties to appear before his court for a status conference on September 8.

Conservationists hailed the ruling for restating that the Army Corps does not have legal justification for its actions, but acknowledged that the agency is unlikely to reduce flows unless sanctions are levied.

The Army Corps did not return calls for comment.

The ruling is another twist in one of the nation's longest running environmental disputes.

The Army Corps operates six dams on the Missouri River - in Montana, North and South Dakota, and Nebraska - and conservationists have criticized the agency's management of water flows from these dams for more than a decade.

The six dams form the largest reservoir system in the United States.

Managing the Missouri River for its range of multiple uses has never been easy. (Photo courtesy Sierra Club)

Conservationists note that in the past some 100 acres of shallow water habitat was available for juvenile fish, whereas today on average only three acres are available each river mile.

And established reproductive goals for both the least tern and the piping plover have not been met in 13 of the last 16 years.

To remedy this, the conservation groups want the Army Corps to reduce flows below Gavins Point Dam on the border of Nebraska and South Dakota for several weeks in the summer.

They argue the Army Corps would raise river levels again on September 1 in time for river barges to haul their share of the region's fall harvest.

The barge industry would not be greatly affected, conservationists say, because some 80 percent of the cargo that moves on the river by barge moves before July and after August.

But the Army Corps has agreed with river barge operators and some agricultural interests, who say the economic interests of barge operation merit keeping the Missouri River high enough for barges to operate throughout the summer.

Not only has the agency refused to comply with Kessler's order, releases have risen from Gavins Point Dam in recent dams. Kessler ordered flows of 21,000 cubic feet per second (cfs) but flows reached 26,830 cfs at 2:00 a.m. on August 5, up from 26,170 cfs twelve hours earlier.

"The Corps is illegally pushing the narrow agenda of the barging industry at the expense of endangered wildlife," said John Kostyack, senior counsel at National Wildlife Federation, one of the conservation groups involved in the litigation.

The piping plover needs low river flow and adequate sand bars for summer nesting. (Photo courtesy U.S. Fish and Wildlife Service)

But the Fish and Wildlife Service is also at odds with the Corps' management of the river.

In 2000, the Fish and Wildlife Service provided ready ammunition for conservationists with a final biological opinion on Missouri River dam operations that concluded the least tern, piping plover, and pallid sturgeon are likely to go extinct on the Missouri River if the Corps fails to change dam operations.

The agency recommended restoration of modestly higher flows an average of once every three years during the spring to cue fish reproduction and build river sandbars.

The Fish and Wildlife Service also recommended a short period of lower flows each summer to increase shallow water habitat and to expose more sand for nesting birds.

These flow changes were to take effect in 2003, but the Corps has not complied with the Fish and Wildlife Service's request.

The Corps' position is also at odds with a 2002 report on the Missouri River ecosystem by the National Academy of Science. That report found that "degradation of the Missouri River ecosystem will continue unless the river's natural water flow is significantly restored."

It found reforming the dam operations would benefit the economy by increasing recreational and hunting opportunities, in particular through enhancing fishery resources and increasing waterfowl populations.

Government estimates find increased recreational activities from higher flows could provide some $8.8 million stimulus to the economy.

According to the Corps and the U.S. Department of Agriculture, Missouri River barges produce only $6.9 million in annual economic benefits for the region.