Coalition to Protect the Missouri River to sue over river flow management

January 4, 2003

Coalition to Protect the Missouri River to sue over river flow management

By REGIS NEUROHR

n Monday December 16th a 60 day Notice of Intent to Sue the U.S. Fish and Wildlife Service and the U.S. Army Corps of Engineers was forwarded to Secretary of Interior, the Secretary of the Army, state fish and game agencies in North Dakota, South Dakota and Montana on behalf of twelve associations and companies representing thousands of farmers, navigators, municipalities, utilities, recreation interests and industry. The Notice represents an Intent to Sue under citizen suit provisions of the Endangered Species Act and under the Administrative Procedure Act. Federal law requires 60 days' notice before a suit against the federal government.

The impending lawsuit, initiated by The Coalition to Protect the Missouri River, will take issue with the U.S. Fish and Wildlife Service's actions to protect two endangered shorebirds, the piped plover and the least tern, both of which are recognized in the Endangered Species Act.

The coalition believes that the "Uncertainty regarding the future of all Congressionally-authorized uses of the Missouri River has forced Missouri River stakeholders to rally against the unproven science mandated by the U.S. Fish & Wildlife Service and implemented by the U.S. Army Corps of Engineers. The coalition will argue that The Corps' implementation of USFWS prescriptive mandates would disregard navigation, flood control, and other established uses of the Missouri River in favor of "dubious methods intended to protect some species."

The coalition claims that last year, navigation was shut down and economic losses were suffered when the corps said in July 2002 it could not move the birds to accommodate the release of additional water from two upper main-stem dams dams. Barge traffic along the Missouri dropped in anticipation of those lower water levels. Between the first week of July and the middle of August, the lower water levels yielded an estimated $7 million in losses, from farmers unable to ship grain to hotel barges canceling excursions.

Coalition chairman, Chris Brescia stated, "This is government at its worst, pulling the strings based on unproven science that may help species recovery when we know that it will kill economic activity and increase flooding," stated Chris Brescia, chairman of the Coalition to Protect the Missouri River. "The National Academy of Sciences stated that no empirical evidence exists to support the Service's theories on species recovery. On top of that, we do know, however, that the environmental impacts of taking traffic off the river and shifting it onto other modes will be detrimental to all species - human and animal alike."

The Coalition to Protect the Missouri River has been joined by MO-Ark, The Missouri-Arkansas River Basins Association in the lawsuit. The Association promotes flood control, navigation, irrigation, recreation, fish and wildlife, environment, conservation and beneficial use of land and water resources within the Missouri Basin and the portion of the Arkansas Basin which runs through Kansas and Missouri.

The notice is the second to be filed by the MO-Ark Association in the last nine months. The latest notice updates and supplements an earlier notice filed by the MO-Ark Association on May 23, 2002, and a notice filed by the Coalition to Protect the Missouri River dated August 20, 2001. The two associations are joined with:

• Midwest Area River Coalition 2000 (MARC 2000)
• Blaske Marine, Inc.
• ConocoPhillips
• Ergon Asphalt & Emulsions, Inc.
• Koch Materials Company
• Magnolia Marine Transport Company
• Memco Barge Line, Inc.
• RiverBarge Excursion Lines, Inc.
• Terminal Grain Corporation

Tom Waters, President of the MO-Ark Association declared, "The Missouri-Arkansas River Basins Association's involvement with the recent Notice of Intent to Sue under the Endangered Species Act represents a continuation of preparations for a legal battle MO-Ark has been anticipating for many years. The Association is encouraged by the recent efforts to build a powerful coalition of participants who are now willing to join in an effort to bring common sense and reliability to the operation of Missouri River. We are committed to the effort and will stand side by side with our allies in the important legal battle we plan to face in the near future." The long standing Missouri-Arkansas River Basins Association (MO-Ark) was founded in 1952 and recently celebrated its 50th year Anniversary.

A recent December 16, 2002 press release by the Coalition to Protect the Missouri River disclosed "Actions mandated by the USFWS and implemented by the Corps during summer 2002 created flows below minimum navigation service levels, inflicting economic losses on navigators, grain terminals, excursions lines and industry estimated in the millions of dollars. These "bird operations" occurred to protect 41 interior least tern and piping plover, birds listed as endangered or threatened under the Endangered Species Act, though their population numbers have increased substantially and fledge targets have continually been met under current Missouri River management practices. For the first time in history, the mandates of the USFWS Biological Opinion disregarded authorized project purposes in lieu of conservation and unsupported science."

In addition, "RiverBarge Excursions Lines, Inc., the only hotel barge company in the U.S., (was) forced to cancel their '02 Missouri River excursion at a loss of $1 million due to the "bird operations", cancelled their 2003 Missouri River excursion schedule on December 13 due to "conflicts between the Corps and the USFWS...that could result in water levels that are not sufficient to support navigation on the Missouri River." A RiverBarge Excursions Line's press statement said, "The nature of (our) business is such that there needs to be a long-term reliability and reasonable certainty to navigation on the Missouri River."

"Flow unreliability continues to have adverse impacts on the Missouri River and would have critically affected Mississippi River commerce in 2000-2002 if the USFWS mandates had been implemented," stated Chris Brescia. "It's imperative that the President recognize that the unproven science of the BO (Biological Opinion) dictates Missouri River management that's not in the best interest of this nation or those he has committed to support."