2003 News Releases

2003 Index

Dec. 18, 2003 – Missouri River Biological Opinion Announced ? Spring Rise, Split Navigation Seasons and Unreliability Principal Components

Oct. 2, 2003 – Eighth Circuit Denies Motion for Rehearing – Flood Control and Navigation Maintain Precedence over Recreation

Sept. 16, 2003 – Mississippi River Governors Oppose Modified Conservation Plan for Missouri River

August 29, 2003 – Navigation Interests Raise Concerns About Missouri River Flow Relationship to Mississippi River Commerce

June 4, 2003 – Eighth Circuit Rules Flood Control and Navigation Take Precedence over Recreation

January 28, 2003 – CORPS REQUESTS U.S. FISH & WILDLIFE SERVICE TO RECONSIDER PLANS FOR MISSOURI RIVER

January 28, 2003 – Corps Battles Against Inaccuracies and For Missouri River Basin States

January 17, 2003 – Missouri River Basin Stakeholders Reach Consensus First Time in Fourteen Years

FOR IMMEDIATE RELEASE:
December 18, 2003
 

 Missouri River Biological Opinion Announced – Spring Rise, Split Navigation Seasons and Unreliability Principal Components

HIGBEE, Mo. – The U.S. Fish and Wildlife Service (USFWS) released an amendment to the Missouri River 2000 Biological Opinion (BiOp) today that declared management practices as proposed by the Corps for future river operations would not jeopardize the endangered interior least tern and threatened piping plover but would jeopardize the pallid sturgeon.

Most notably, the BiOp indicated that the Reasonable and Prudent Measures purportedly necessary to offset pallid sturgeon jeopardy would include the most contentious management features of recent discussions – a spring rise and split navigation season.

“This Biop renders the Missouri River an unreliable mode of transportation and wholly conflicts with the Eighth Circuit ruling that flood control and navigation are dominant functions of the river,” stated Chris Brescia, chairman of the Coalition to Protect the Missouri River.  “Congress or the courts must clarify the competing laws relating to these issues and determine if the Endangered Species Act is going to continue to ride rough-shod over other national interests.”

Gavins Point summer flows mandated in the amended BiOp at 25,000 cubic-feet-per-second (cfs) or less would provide minimum navigation service levels forty-percent and split navigation seasons sixty-percent of the time based on thirty years of previous navigation experience.

Moreover, summer flows at those levels raise concerns for utility interests dependent on summer flows to meet their consumer needs during peak demand summer months. In 2002, water quality standards for temperature were exceeded on the river eight days in one location and five days in another when Gavins Point releases were at 25,500 cfs.

A spring rise of up to 20,000 cfs would create a maximum river stage change in Kansas City of 4.0 feet and in Sioux City of 5.0 feet over normal stage levels.Brescia concluded, “It amazes me that the needs of all the congressional uses weren’t accounted for in this BiOp.  Flood control and navigation were treated like the ugly step-child and left on the curb.”

 
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FOR IMMEDIATE RELEASE: October 2, 2003

Eighth Circuit Denies Motion for Rehearing – Flood Control and Navigation Maintain Precedence over Recreation

HIGBEE, Mo. — The full U.S. Court of Appeals for the Eighth Circuit denied the U.S. Army Corps of Engineers’ (Corps) and North Dakota’s petition to rehear a June ‘03 decision which held flood control and navigation are the dominant functions of the Flood Control Act of 1944, and the Master Manual is a rule which limits the Corps’ discretion over operations.  Under the Master Manual, the priorities of flood control, navigation and power have a higher priority than recreation.

“The full court has now held that its June ’03 opinion will stand as the law of the Eighth Circuit in which most of the affected states are located,” stated Randy Asbury, executive director of the Coalition to Protect the Missouri River.

The June Eighth Circuit ruling was precipitated by a suit filed by the State of South Dakota in April ‘02 against the Corps to prevent the Corps from releasing water from Upper Basin reservoirs. South Dakota biologists and state officials cited lower reservoir levels would have negative impacts on their rainbow smelt hatch. Rainbow smelt are food fish for the walleye, South Dakota’s signature sport fish.

South Dakota’s filing escalated into suits filed against the Corps by the States of North Dakota, Montana and Nebraska with Missouri and stakeholder groups, lead by the MO-ARK Association and Missouri and Mississippi River entities. Contradictory federal judge rulings on these suits pushed the battle to the Eighth Circuit on appeal.

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FOR IMMEDIATE RELEASE: September 16, 2003

Mississippi River Governors Oppose Modified Conservation Plan for Missouri River

HIGBEE, Mo. – Mississippi River governors representing Missouri, Arkansas, Illinois, Kentucky, Louisiana, Mississippi and Tennessee expressed concern by letter to President Bush regarding a proposed Missouri River management plan expected to be the chosen preferred alternative for future river management.

“The Modified Conservation Plan is completely unacceptable to Mississippi River states because it would retain far too much water in the upstream reservoirs for the benefit of recreation at the expense of adequate water in the free flowing Missouri and Mississippi Rivers,” stated the governors.

“The Modified Conservation Plan would be a drastic departure from the current phased approach to water conservation measures in that it would reduce flows and shorten the navigation season by a full month as soon as there is any hint of the possibility of drought.

“Analysis has shown that these month-long cuts in water releases would harm navigation on the Mississippi River in one of every three years by lowering water levels by two to three feet in the critically important commodity-shipping month of November. The more rational response would be to take small, incremental steps to conserve water early in a drought, while only implementing more restrictive conservation measures if and when the drought becomes severe.

“Under the Modified Conservation Plan, if the total amount of water in the upstream reservoirs on July 1 of any year is less than the amount that was there on March 15 of that year, a ‘negative storage trend’ is said to exist [that] would lead to an immediate reduction in water releases to only support minimum service navigation until late August of the following year. This is an illogical approach in that it would cut flow support for the Mississippi River in two successive years based on a two-month ‘trend’ that may have no relevance in the long term.”

Two changes were recommended to “provide a more common sense approach to managing the Missouri River…” First, it was suggested that the “length of the navigation season should only be shortened incrementally as a drought worsens as opposed to the immediate one-month cut in downstream flows dictated” by the plan. This approach “would limit the risks to downstream users on the Missouri and Mississippi Rivers.”

The second recommendation was the “…elimination of the illogical ‘negative storage trend’ feature. A more reasonable plan would replace ‘the negative storage trend’ feature with a fixed trigger for reducing the releases for downstream use. This would provide intermediate service for navigation until the water levels in the upstream reservoirs fell to a given point, at which time the releases would be cut to support only minimum service for navigation.”

The governors recognized that while the Modified Conservation Plan “include[d] none of the reduced summer releases proposed for habitat enhancement,…properly timed and proportioned reduced summer releases would likely benefit some sections of the Missouri River’s ecosystem.”

To “balance the needs of fish and wildlife while continuing to support the other uses of the Missouri and Mississippi Rivers” the governors
supported a proposal by the Missouri Departments of Conservation and Natural Resources to reduce releases to only provide the 9-foot navigation channel on the Missouri River (41,000 cubic feet per second at Kansas City) from August 1 to September 15.

The governors concluded by stating, “If the Modified Conservation Plan is to be your Administration’s new plan for managing the Missouri River, it is absolutely essential that our recommended changes be made in order to protect the interests of Mississippi River states.”

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To obtain additional information about the Modified Conservation Plan and its impacts on the Mississippi River, go to the “Brownlee-Woodley Letter Enclosure 82903″.

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FOR IMMEDIATE RELEASE: August
29, 2003


Navigation Interests Raise Concerns About Missouri River Flow Relationship to Mississippi River Commerce

HIGBEE, Mo. — The following letter is an open letter sent to the Honorable R.L. “Les” Brownlee, Acting Secretary of the Army and the Honorable John Paul Woodley, Jr., Assistant Secretary of the Army — Civil Works, by the Coalition to Protect the Missouri River, The American Waterways Operators and Midwest Area River Coalition (MARC 2000). The letter expresses concerns about the interconnectedness of Missouri River flows to Mississippi River commerce and the necessity for the U.S. Army Corps of Engineers to properly and accurately account for this relationship in future Missouri River flow management decisions.

August 29, 2003

The Honorable R.L. “Les” Brownlee

Acting Secretary of the Army

Department of the Army

101 Army Pentagon

Washington, DC  20310-0101

The Honorable John Paul Woodley, Jr.

Assistant Secretary of the Army (Civil Works)

108 Army Pentagon

Washington, DC 20310-0108

Dear Secretary Brownlee and Assistant Secretary Woodley:

The closure of navigation on the Mississippi River last week depicts a “real time” portrait of the interconnectedness of Missouri River flows to Mississippi River viability. Navigation halted on the Mississippi River after Missouri River flows from Gavins Point Dam were reduced by court order. 

For several months, our organizations have sought to bring to the Army’s attention this flow relationship and its substantial impact on Mississippi River commerce. This closure confirms that, in dry years, flow support from the Missouri River is essential to the viability of Mississippi River commerce. This 3-day event could easily have begun weeks earlier, with even more adverse Mississippi River impacts, had the Corps of Engineers been forced to abide by the original July 12 federal court order to lower flows.

We are writing to ask that you give this matter your personal attention and leadership before we are faced with another closure of the Mississippi River that could have profound impacts on the economy of the Midwest and on the nation as a whole. Avoiding that kind of catastrophe will be substantially aided by your direct involvement in the near term decisions facing the Army and the Corps.

These near term decisions will be made on the important matter of the Modified Conservation Plan (MCP). If you choose the MCP as the Preferred Alternative for Missouri River management, the implications for navigation are profound — to move Mississippi River commerce down the path of unreliability and eventual shutdown. And, you might well make that disastrous choice based on the flawed analysis before you.

It is imperative that the Corps accurately model Mississippi River impacts in a manner that truly depicts “real world” economics and draft capacities and accurate stage/discharge relationships between the Mississippi and Missouri rivers. The flow linkage and economic relationship that exists between these two rivers is wholly undervalued in the Mississippi River economic impact study.

Barge companies cannot survive if this study continues to compare losses as a percentage of the National Economic Development analysis. This comparison is illogical and doesn’t reflect the true nature of an economic loss that must be dealt with in the real world. The long-term viability of Mississippi River commerce is in jeopardy if a “real world” analysis of this flow relationship isn’t conducted and completed.

The shutdown of the Mississippi River last week conservatively cost shippers $1 million and restrictions cost $500,000.00 per day, respectively. Nonetheless, our industry, our customers, and the nation were lucky that circumstances made the closure a relatively short one. We would appreciate the opportunity to meet with you at your earliest convenience to discuss the decisions before you that have the potential to make the next shutdown much worse. We will call your offices to schedule an appointment. Enclosed you will find additional information regarding MCP issues and concerns.

Thank you for your consideration of our concerns. We look forward to working with you to effectively resolve this serious situation.

Sincerely,

Randy C. Asbury Lynn M. Muench Christopher J. Brescia
Coalition to Protect the The American Waterways MARC 2000
Missouri River Operators

Enclosure

Cc: Lieutenant General Robert E. Flowers

Major General Carl A. Strock

Brigadier General William T. Grisoli

Brigadier General Don T. Riley

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To obtain a copy of the information enclosed with this letter, go to the CPR website at http://www.ProtectTheMissouri.com and click the “Missouri River” button and open “Brownlee-Woodley Letter Enclosure 82903″ or call Randy Asbury at 660-273-9903 or email
moriver@socket.net for a fax or electronic copy.

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FOR IMMEDIATE RELEASE: June 4, 2003

Eighth Circuit Rules Flood Control and Navigation Take Precedence over Recreation

HIGBEE, Mo. — The U.S. Court of Appeals for the Eighth Circuit released a court ruling today affirming the priorities of the Flood Control Act of 1944. The court stated, “The dominant functions of the Flood Control Act were to avoid flooding and to maintain downstream navigation” and recognized that “recreation and other interests [are] secondary uses” on the river.

The court indicated the Master Manual, the guidance document for Missouri River operations, established competing use priority with recreation, fish and wildlife following flood control, irrigation, water supply and water quality requirements, navigation and power.

They quoted Flood Control Act language that notably reads, “insofar as possible without serious interference with the foregoing functions (emphasis added), the reservoirs will be operated for maximum benefit to recreation, fish and wildlife.”

“Finally, it’s been legally reaffirmed that the Flood Control Act means what it says,” stated Randy Asbury, executive director of the Coalition to Protect the Missouri River. “Stakeholders have argued for years navigation was being assailed to the benefit of recreation interests.

Upper Basin states attempted to kill the navigation industry though its existence on the Missouri River was congressionally authorized. Though we empathize with recreation interests during this time of drought, the dams were constructed with navigation as a priority use and dry conditions don’t change that fact.”

The Eighth Circuit ruling was precipitated by a suit filed by the State of South Dakota in April ‘02 against the U.S. Army Corps of Engineers (Corps) to prevent the Corps from releasing water from Upper Basin reservoirs. South Dakota biologists and state officials cited lower reservoir levels would have negative impacts on their rainbow smelt hatch. Rainbow smelt are food fish for the walleye, South Dakota’s signature sport fish.

South Dakota argued “the Flood Control Act requires the Corps to maximize the benefits of the River, including fish-and-wildlife benefits.” The court responded, “Courts are simply not empowered to review every decision of the Corps to ensure that it maximizes the benefits of the River for all interests. Indeed, such a standard would be impossible to meet, anyway. In times of drought, it is not possible for navigation and fishery benefits to be maximized. Something has to give.”

South Dakota’s filing escalated into suits being filed against the Corps by the States of North Dakota, Montana and Nebraska with Missouri and stakeholder groups, lead by the Mo-Ark Association and Missouri and Mississippi River entities, intervening at the appellate level to protect their interests. Contradictory federal judge rulings on these suits pushed the battle to the Eighth Circuit on appeal.

A second portion of the ruling established the Master Manual is a rule thus eliminating the Corps argument that their actions were not subject to judicial review. Though the Corps has been given a “good deal of discretion” by the Flood Control Act, the three-judge panel stated that “this discretion is not unconstrained.”

The courts recognition that the Master Manual is a rule should circumvent many of the past year’s Missouri River Basin litigation events from becoming perpetual occurrences.

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FOR IMMEDIATE RELEASE: January
28, 2003


CORPS REQUESTS U.S. FISH & WILDLIFE SERVICE TO RECONSIDER PLANS FOR MISSOURI RIVER

Higbee, MO – The U.S. Army Corps of Engineers (Corps) released Biological Assessments for the Missouri River Annual Operating Plan and Master Manual on January 24 as part of their renewed formal discussions with the U.S. Fish & Wildlife Service (USFWS). The Corps called for the USFWS to reconsider some of its recommendations for listed species recovery on the Missouri River.

The assessments state that the implementation of the current USFWS plan “would not achieve the results expected by the USFWS.” Low summer flows called for by the USFWS would only increase erosion and result in less available habitat, and therefore, “flow should not be relied upon to provide the required amount of shallow water habitat.”

In addition, the Corps stated there is no need for special management of the endangered and threatened birds, the interior least tern and piping plover, respectively, in 2003 because of the rebound of bird populations in the last several years.

Corps’ data also indicated that the spring rise called for by the USFWS should not be implemented based on the very small gain in connectivity of the River to the flood plain and the fact that the spawning cue requirements of an endangered fish, the pallid sturgeon, are “basically unknown at this time.”

A broad coalition of interests including shippers, barge companies, terminals and farm organizations notified the Corps and the USFWS on December 16, 2002 of its Intent to Sue the agencies if they did not enter into renewed formal discussions and revise the Missouri River Biological Opinion (BO) based on new information.

“The Corps’ conclusion that ‘there is too much scientific uncertainty at present to justify prescriptive implementation of the “spring rise” and “low summer” flow’ is right on target,” said Randy Asbury, executive director of the Coalition to Protect the Missouri River, an organization instrumental in supporting the Notice of Intent to Sue. “Stakeholders have been voicing that message for fourteen years.”

“The new assessments are a step in the right direction,” stated Robert Vincze, attorney for the coalition. “They show that the current plan (BO) is not in the best interest of the environment or the economy.”

[The Corps’ Biological Assessments may be found at https:/www.nwd.usace.army.mil at the Missouri River endangered species consultation button]

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FOR IMMEDIATE RELEASE: January 28, 2003

Corps Battles Against Inaccuracies and For Missouri River Basin States 

HIGBEE, Mo. — The U.S. Army Corps of Engineers (Corps) responded to statements that “mischaracterize plans for managing flows on the Missouri River in 2003″ on their Northwestern Division Corps’ website (http://www.nwd.usace.army.mil) on January 24.

Under the Hot Topics and Issues link, the Corps rebutted incorrect statements made by American Rivers, an environmental special interest group, to media regarding Missouri River flow to target releases, endangered/threatened birds and recreation.

The Missouri River Basin Association (MRBA), a coalition of Governor-appointed representatives from each of eight Missouri River Basin states, and other Basin interests advocated for flow to target and bird relocation authorization on several occasions. As late as January 27, all eight MRBA directors reaffirmed their states’ support of flow to target releases and bird relocation by conference call.

This reaffirmation comes subsequent to the “Bond Amendment,” an amendment offered by Senator “Kit” Bond (MO) with the intent to prohibit the use of funds by the U.S. Fish and Wildlife Service (UFWS) to require the Corps to implement a steady release flow schedule for the Missouri River or to prevent the Corps from relocating bird nests along the Missouri River.

At issue is whether flow to target releases with bird relocation authorization will be approved in the Missouri River Annual Operating Plan formal consultations between the Corps and USFWS. Flow to target releases, if approved, would conserve water and meet a diversity of river user needs during the Basin’s extraordinary drought conditions.

“The Missouri River Basin States have spoken with clarity, not once but repeatedly,” stated Randy Asbury, executive director of the Coalition to Protect the Missouri River. “There’s no question that all eight states want flow to target releases and bird relocation for 2003. It’s a win-win situation for birds and stakeholders as Corps’ data conclusively proves egg collections and captive rearing are not detrimental to the birds.”

Corps Rebuttal:

Responding to the false statement, “The “flow to target” plan will devastate recreation in the three big reservoirs in Montana, North Dakota and South Dakota,” the Corps replied:

“Flow to target conserves water in the reservoirs while simultaneously meeting downstream needs. If the amount and pattern of runoff …were similar to 2002, more than 546,000 acre feet of water would be conserved in the big reservoirs with a “flow to target” operation…At the same time, minimum flows to support navigation would be provided.”

Responding to the false statement, “Captive rearing of terns and plovers doesn’t work and has killed birds in the past,” the Corps replied:

“Since 1995, the Corps has collected 456 tern eggs and 575 piping plover eggs for captive rearing. Of these, 83 % of the tern eggs and 82 % of the plover eggs successfully hatched. During the same period, 7,072 tern eggs and 9,275 plover eggs were laid and attended in the wild. Of these, 60.5% of tern eggs and 61.7% of plover eggs hatched. Hatching rates in the controlled setting are 22.4% higher for terns and 19.3% higher for plovers than their wild counterparts.

Of the chicks hatched in the captive facility, 81.2% tern and 87.6% plover chicks fledged and were released back onto the Missouri River or its tributaries. This compares with wild fledge rates of 58.8% for terns and 58.7% for plovers during the same period.”

Responding to the false statement, “Moving birds to a brick building is a death sentence,” the Corps replied:

“The University of Wisconsin-Madison conducted [an evaluation that] showed that pre-migratory post-release survival of captive reared birds was the same as wild reared birds.”

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FOR IMMEDIATE RELEASE: January 17, 2003

Missouri River Basin Stakeholders Reach Consensus — First Time in Fourteen Years

HIGBEE, Mo. — The Missouri River Basin faced opposition, strife and discord since 1988 when a severe drought precipitated a review of the Missouri River Master Manual, the guidance document for Missouri River operations. In the midst of another severe drought, a new day dawned as consensus returned to the Basin after 14 years. Consensus came in a letter to Steven A. Williams, Director of the U.S. Fish and Wildlife Service (USFWS) dated January 16.

In that letter, co-signors Sue Lowry, president of the Missouri River Basin Association (MRBA), and Chris Brescia, chairman of the Coalition to Protect the Missouri River (CPR), stated, “The Missouri River Basin is experiencing severe drought conditions for its third to fifth consecutive year, depending upon geographic location. This ongoing drought has reduced water storage in reservoirs by nearly 13 million acre-feet below average according to U.S. Army Corps of Engineers’ (Corps) estimates. These extraordinary circumstances are creating great Basin hardships; therefore, every action should be taken in ’03 to conserve the limited water resources in the Basin to allow for all project purposes to be met as long as possible.

“One option that can save up to 800,000 acre-feet of water, depending upon tributary inflow, is for the Corps to include flow-to-target
rather than steady releases in the Final 2003 Missouri River Annual Operating Plan (AOP). Flow-to-target releases use substantially less water as tributary inflows are used to augment navigation target needs.”

To aid implementation of this water conservation measure, Lowry and Brescia urged the USFWS to allow the Corps to relocate the nests and chicks of endangered or threatened bird species susceptible to inundation from Gavins Point releases. Fledge ratios were consistently met and population numbers increased for the piping plover and interior least tern throughout the past several years. Given the fledge ratio and population number successes of these birds, the two coalitions believe it is reasonable to authorize relocation in ’03 to assure more water is available for Basin uses.

“Flow-to-target releases and relocation authorization combine to make this possible and are prudent measures during this unique situation. These recommendations provide the basis for an AOP that better meets the vast diversity of needs in the Missouri River Basin during this dire drought condition,” said Lowry and Brescia.

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