The Corps plans to raise water levels in the Missouri River twice each spring - in March and again in May - to encourage spawning by the pallid sturgeon, a fish on the federal endangered species list.
Nixon sued the Corps to stop the rise because many parts of Missouri are undergoing severe flooding caused by last week's record rainfall.
On Tuesday, the federal district court in St. Louis declined to grant the attorney general a temporary restraining order prohibiting the Corps from proceeding with the spring rise.
District Judge Jean Hamilton ruled that there was no proof the Corps' plan violated any law.
High water on the Missouri River as it flowed through Kansas City in March 2007. (Photo courtesy USACE)
On Tuesday afternoon, Missouri lawyers and the head of water resources for Missouri's Department of Natural Resources, Mike Wells, appealed the district court's ruling to the 8th U.S. Circuit Court of Appeals, but lost in that court as well.
For months, Attorney General Nixon has been objecting to the Corps' planned spring rise.
In October 2007, the attorney general's staff sent a letter to Col. Steven Miles, commander of the Corps' Northwestern Division, expressing concern that the Corps would consider a man-made rise while widespread flooding in Missouri was responsible for several deaths and massive property damage.
A return letter from the Corps received by the attorney general on March 21 said that the Corps intended to proceed with the spring rise beginning in the middle of the week of March 24, prompting Nixon to file suit.
"In addition to the flooding Missouri is suffering, the Corps also should not consider doing a man-made rise because many of the levees along the Missouri River that were breached by the floods of 2007 have not been fully repaired," Nixon said.
The estimated rise in the river's level is estimated at 12 inches at Kansas City and six inches at Hermann, but Missouri officials fear that reservoirs and waterways are topped up and the ground is saturated.
Warning of more rain forecast for later this week, they argued that the endangered sturgeon does not need more water for its recovery.
Lawrence Cieslik, chief of Missouri River Basin water management for the corps, and Assistant U.S. Attorney Nick Llewellyn argued that water levels are already receding.
"Many Missourians have spent the last week putting sandbags in place in order to protect homes, businesses, farms and roads from flooding," Nixon maintained.
"We need this order to ensure the Corps does not make this catastrophe even worse by sending more water downstream for the pallid sturgeon, where any rise would only add to the devastation along the streams and rivers that empty into the Missouri and Mississippi," he said.
The spring rise first took place in May 2006. Plans for similar water releases have not been carried out due to drought and low reservoir levels upriver.
Despite years of study, Nixon said, the science behind the spring rise remains uncertain. He says scientists are beginning to question the benefit of a man-made rise for the sturgeon that is intended to substitute for natural seasonal river fluctuations before the upstream dam was constructed.
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