Army Corps of Engineers Offer Six Alternatives on Missouri River

Roger Walker
Armstrong Teasdale LLP

The Army Corps of Engineers (Corps) on August 31, 2001 released its long awaited revised draft environmental impact statement (EIS) which, as promised, includes six alternatives on flow restrictions on the Missouri River in order to avoid takings under the Endangered Species Act (ESA). In addition, the Corps announced that it will initiate a six-month public comment period after which the Corps will choose an alternative. The selection is slated to be final by May 2002.

The release of the draft EIS is the latest development in the Corps' 10-year struggle to develop a new "master manual" to guide its operation of six major dams on the nation's longest river. In 2000, the Corps initiated consultation with the U.S. Fish & Wildlife Service (FWS) under the ESA because two endangered species, the pallid sturgeon and least tern, would likely be impacted by Corps action. The Corps has scheduled public hearings along the length of the Missouri River beginning in October 2001 to discuss its six alternatives. For a complete schedule and a copy of the draft EIS, see www.nwd.usace.army.mil.

In August 2001, both the State of Missouri and the Coalition to Protect the Missouri River sent letters of intent to sue the Department of Interior. The Coalition is comprised of various interests including agricultural and utility interests, barge terminals and general business associations. Both the State and the Coalition allege substantive and procedural violations under the Endangered Species Act and the Administrative Procedure Act directed at the final Biological Opinion (and its proposed alternative) issued by the FWS after consultation with the Corps. Environmental groups submitted letters of intent several months earlier.

The Corps almost certainly would have adopted the only alternative offered by the FWS - the so-called spring rise summer draw - had the U.S. Senate not adopted language in an appropriations bill that essentially instructed the Corps that it may consider and propose alternatives for achieving species recovery other than the one specifically prescribed by the FWS. The Senate language, now final, mandated that the Corps "shall consider the views of other federal agencies, non-federal agencies, and individuals to ensure that other congressionally authorized purposes are maintained."

According to the Corps, it will choose an alternative that will control flooding, generate hydropower and benefit shippers while also protecting endangered fish and birds. In truth, the final outcome may hinge on a report due out in late October 2001 by the prestigious National Academy of Sciences which has been directed to review the issue.

Besides the current management plan, the Corps is proposing a modified version that would reserve more water in drought years. Four other options are similar to the changes sought by FWS and would implement a "spring rise" and a "summer draw."