Editorial: Water Wars Continue Despite Court Ruling

Does anyone find anything illogical in the news reports following an August 16 decision by the U.S. 8th Circuit Court of Appeals? The ruling continues to give the U.S. Army Corps custody of the Missouri River and to negate the influence of the Endangered Species Act (ESA) if it interferes with the agency’s key role—to foster navigation and control flooding.

We have argued umpteen times that as long as there is conflict in the law, there will never be an end to water wars. Congress needs to do something about it. The court seems to be trying. They say diamonds are forever. It looks like water wars are too.

The court decision on August 16 was very clear. A footnote to the ruling said if Corps efforts to comply with a directive to protect the endangered pallid sturgeon interfere with its key role involving navigation and flood control, then the ESA does not apply. That’s not confusing.

On the 20th of August there appeared in the St. Louis Post-Dispatch a headline as follows: "Talks On Spring Rise For Missouri River Reach Impasse." Apparently a 50-member study group that is trying to come up with a plan to outline conditions of the rise and pass the recommendations on to the Crops can’t agree. The Corps, by the way, has invited such a proposal. It has a default plan to fall back on if the group fails to submit one.

Members of the group did seem to make some progress on a timeline for the first rise, the rate of flow and its duration; but talks bogged down when they began considering whether or not to relax flood control measures for farmers in downstream states to facilitate their "rise" desires. Curtailing flood-control measures interferes with the Corps’ role, doesn’t it? How many millions of dollars in flood damage should the Corps allow to occur to enhance sturgeon numbers?

According to the Post-Dispatch, "The U.S. Fish and Wildlife Service [FWS] has told the Corps to enact a spring rise, which involves releasing water from reservoirs into the river." Under the court’s footnote, wouldn’t the FWS directive to the Corps be moot? The FWS gets its authority from ESA. Maybe we’re missing something. Clearly the ruling by the 8th Circuit Court of Appeals meant very little to Corps critics and environmentalists. In other words, they believe they are above the law, and if they want to interfere with the Corps’ No. 1 role, they can. Every agency of government has been held to requirements of ESA. To a degree, that makes sense. But a non-flexible policy is a non-workable policy. There is a time to interject common sense into the issue.

The Missouri water battle has been going on for decades. If the prime concern of detractors is not sturgeon, it is birds. If it were not birds, it would be Indian burial grounds, or mollusks, etc. When they run out of reasons to challenge the Corps, they will probably argue that navigation endangers old steamboat wrecks. South Dakota is interested in its walleye fisheries, not sturgeon, and at one time didn’t know what side of the argument it was on.

At one time, opponents of the spring rise, including some in the Missouri Department of Natural Resources, argued that there is no evidence that a spring rise would be helpful to wildlife. Spring-rise proponents think it is okay to authorize a plan that will surely bring headaches to navigation and farming but one that will provide an "iffy" outcome. We will ask once again, if the number of sturgeon was increased to millions, what then? What would be the benefit derived from such an accomplishment? What would be the loss resulting from efforts to enhance the sturgeon population?

The fact that navigation on the Missouri has had to face nearly every kind of opposition and natural challenge possible gives us a pretty good understanding why traffic is down and critics claim barging is no longer needed on the Missouri. The scenario is a bit like breaking the legs of Pony Express horses and then claiming that mail delivery is down. Yet, navigation is not obsolete. New business concerns are waiting in the wings to act when the drought ends and water levels return closer to normal. There is nothing to say that the developing container-on-barge service might not spread up the Big Muddy. It makes sense.

We believe the court should stand fast on its decision to let the Corps maintain control of river flows. But having said that, we think the environmental organizations and basin-state interests that oppose such control will continue their obstructive activities in an attempt to influence compliance with what the court has already decided.

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