Corps refuses to drop Missouri River levels

Billings Gazette

7/21/03

WASHINGTON (AP) -- The U.S. Army Corps of Engineers refused late Tuesday to reduce water levels on the Missouri River, despite orders from a federal judge to cut flows to protect endangered birds and fish.

Instead, the corps launched formal talks with the U.S. Fish and Wildlife Service intended to result in a new "master manual" for the river's flow by Spring 2004. The new plan of operations was due in 2002, but the Bush administration postponed it last summer.

The corps said the administration will ask Congress for $42 million next year for an unprecedented effort to restore the Missouri River ecosystem.

The agency said the judge's order, issued Saturday, placed it under conflicting rulings.

"It is impossible to simultaneously comply with the conflicting flow requirements obtained in the two orders," the corps said in a statement issued late Tuesday.

The U.S. District Court for the District of Columbia on Saturday ordered the low flows to comply with the Endangered Species Act. But the U.S. District Court for the District of Nebraska ruled last year the river must have enough water for barges to navigate and power plants to operate.

At issue is an effort to restore the Missouri to a more natural spring rise and low summer flows to encourage fish spawning and bird nesting by species that are on the federal threatened and endangered lists.

Such a change would also benefit the lake recreation industry upriver in Montana and the Dakotas, but farmers and residents along the lower reaches of the river in Nebraska, Iowa, Kansas and Missouri worry a spring rise would flood homes and farmland, while low summer flows would devastate the barge shipping industry.

There was a flurry of legal wrangling this week. The Justice Department and the state of Nebraska asked Monday for a stay from U.S. District Court Judge Gladys Kessler, who had ordered the low flows. She denied the request Tuesday morning.

The Justice Department served notice Tuesday afternoon it would appeal her order to the U.S. Court of Appeals for the District of Columbia Circuit. Justice officials also will ask the appeals court for a stay pending appeal.

In her order, Kessler acknowledged barge companies will lose revenues, water quality may suffer and consumers may pay more for power this summer along the Missouri River. But she said that injury to wildlife -- the least tern, piping plover and pallid sturgeon -- will be irreparable without curtailing the Missouri's flow.

The corps was ordered in 2000 to switch to a more natural flow, with heavier releases in the spring and less water in the summer. The order came from the Fish and Wildlife Service, which administers the Endangered Species Act and said the changes are the only way to protect the piping plover, interior least tern and pallid sturgeon.

The service gave the corps until last year to revise its master water control manual to alter the Missouri's flow. Instead, the Bush administration postponed changes indefinitely by launching ongoing talks between the corps and the wildlife service.

But this year, the Fish and Wildlife Service said the corps is allowed to keep drought-stricken downstream waters deep enough for barges throughout the summer.

That sparked the request for an injunction from Kessler from the plaintiffs in a lawsuit to force the flow changes. American Rivers, Environmental Defense, the Izaak Walton League, the National Wildlife Federation and a half-dozen other groups are suing the corps.