States bicker over legislation on managing the Missouri River

Tuesday, September 9, 2008 | 10:07 a.m. CDT; updated 10:28 a.m. CDT, Tuesday, September 9, 2008
The Missouri River weaves through Eagle Bluffs Conservation Area in Boone County, in this 2007 file photograph. Management of the Missouri River water levels, which are controlled under the 1944 Flood Control Act, has again become a point of contention between the upper and lower basin states because of a recent proposal to reassess the Act. Northern states, such as South Dakota, are more concerned about the fish population, while states along the lower basin, such as Missouri, prioritize flood prevention and barge navigation.

PIERRE, S.D. - To John Cooper, it's a simple - if far from easily accomplished - proposal.

More than 60 years after Congress passed the Flood Control Act that created the reservoir system on the upper Missouri River, it's time to step back and reassess.


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"What business goes six decades without re-evaluating the basic reasons it started?" said Cooper, a former South Dakota's Game, Fish and Parks Department secretary. He's now chairman of the Missouri River Association of States and Tribes.

But Cooper's simple proposal already is sparking controversy. It's a veiled attempt to kill navigation and cripple flood control in the lower basin, says Tom Waters, head of the Missouri Levee and Drainage District Association.

"We feel like flood control and navigation are under constant attack," Waters, of Orrick, said. "We don't need another study. We need some stability."

In February, the river association voted to request a reassessment of the 1944 Flood Control Act. Legislation to do that is pending in Congress, said Larry Cieslik, water management chief for the U.S. Army Corps of Engineers in Omaha.

It's the latest action in a series of battles between the upper and lower basin states over river management. Conflicting priorities have placed states, including South Dakota, at odds with those down the river.

Since 1990, the Missouri River has been the focus of almost a dozen lawsuits.

Upstream states generally prefer steady or rising water levels in the spring when fish are spawning. Downstream states are mindful of flood control, but they also want dependable flows for municipal and commercial water uses and to float barges.

In 2006, the U.S. Supreme Court, without comment, refused to hear an appeal from North Dakota and South Dakota over water flows. As recently as this spring, Missouri Attorney General Jay Nixon sued the U.S. Army Corps of Engineers to cancel a planned spring rise aimed at encouraging spawning of the endangered pallid sturgeon. The court rejected the request.

In the spotlight now is the Pick Sloan Plan of the Flood Control Act. The act specifically mentions flood control, navigation, power generation, irrigation, domestic and industrial water supplies, recreation and fish and wildlife.

Sedimentation along the river was largely unmentioned in 1944. The dictates of the Endangered Species Act didn't come along until the 1970s. Recreation was noted, but the vision almost certainly didn't include the growth of walleye fishing and pleasure boating on the reservoirs. Tribal burial sites and cultural resources weren't a national priority.

The vote by Cooper's group came months after an August 2007 letter from South Dakota Gov. Mike Rounds to the Mississippi River Commission and the U.S. Army Corps of Engineers that suggested some of the assumptions upon which the 1944 act was built are no longer valid. A new study would show which priorities for river management remain important, Rounds said.

"The Corps of Engineers finds itself in the unenviable position of having to operate a reservoir system in the 21st Century constrained by the statutory and legal requirements of a 1944 vision," Rounds wrote in the letter.

The proposed review is "another nasty turn of events" in the battle over Missouri River water, Waters said.

"Governor Rounds and the MoRAST clearly have an agenda to end navigation and flood control on the Missouri River and take control of the water," Waters wrote in March to John Paul Woodley, Army assistant secretary for civil works.

As with so many other river issues, the request for a major review divides some upper basin and lower basin interests.

It needn't be that way, says Terry Steinwand of the North Dakota Game and Fish Department.

"The proposal makes perfect sense," Steinwand said. "I'm sure 50, 100 years from now people will look at some of the decisions we made and say, ‘What in the world were they thinking?' To ask ourselves ‘How am I doing?' is not a bad thing."

2008 might be a good time to talk about such things. While a drought for most of the past decade has had the Missouri River running at record low flows, 2008 has seen normal amounts of water moved into storage in the big reservoirs in Montana, North Dakota and South Dakota.

"Eight or nine years we've talked about drought and low flows," Cooper said. "This is a chance to talk about long-term direction of the Missouri River in something like more normal conditions."

Kirk Nelson, assistant secretary of the Nebraska Game and Parks Commission, says new information is essential to the country's future use of its natural resources.

"What is the best use of the natural resources we have in this part of the country, the best use for everyone?" he asked. "Nebraska's position is: We'd like to see the study. We'd like new information, and we're not afraid to live with the results, whatever they are."

Nebraska's interests are more aligned with upper basin states, he said. But the state recognizes commercial interests, such as power generation, municipal water supplies and navigation.

Navigation has a place in an energy-conscious nation, Waters says.

"The river would be used a lot more if it were reliable," he said. "Who's going to go out and invest $4 million or $5 million in an operation when there's one study after another about how we're going to use the river and whether navigation should exist?"

Waters also argues that the lower basin's larger population gives added importance to protecting the municipal and commercial water intakes and flood-control efforts.

His letter in March noted that "the number of people in the Kansas City and St. Louis metropolitan areas is more than twice the population of North Dakota, South Dakota and Montana combined."

Cooper, in an April letter to Woodley, said, "We reject the notion that just because more people live in Missouri than any of the other (basin) states, that the state of Missouri's perceived needs and interests ... supersede all other interests in the basin."

Stuck in the middle is the U.S. Army Corps of Engineers, charged with operating the reservoirs. Cieslik say his agency will do whatever Congress orders. Right now, that means operating based on the Flood Control Act.

"There's language, I know, in an appropriations bill that addresses a new study," Cieslik said. "We are neutral. If Congress authorizes and funds a study, we will conduct it. So far, that hasn't happened."


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