Region 7

Roger Walker
Richard Waters
Armstrong Teasdale, LLP
St. Louis, Missouri

Missouri River Issues Loom in Region VII

A battle is emerging along the Missouri River over water quantity and flow that promises to impact navigation, recreation, agriculture, drinking water supply, listed endangered species, and even the Total Maximum Daily Load (TMDL) program.

The Army Corps of Engineers (Corps) has proposed a plan for 2001 that would reduce the current eight-month navigation season to almost seven months. The Corps is being pushed in different directions. Upstream interests are hoping to convince the Corps to modify its Annual Operating Plan to shorten the 2001 navigation season by up to 27 days and keep more Missouri River water in reservoirs for recreation, irrigation and other uses while navigation, agricultural and other interests downstream vehemently oppose this change.

In addition, a recent Fish and Wildlife Service (FWS) plan that would allow a spring rise and summer decline to help endangered species has drawn harsh criticism in many quarters. The opinion follows on the heels of the recent FWS jeopardy opinion (www.nwd.usace.army.mil) for three endangered species (least tern, piping plover, and pallid sturgeon) and recommends replicating a more natural flow to the river as its measure of protection.

The FWS idea is supported by some environmental groups but strongly opposed by farmers who say this change in flow would strongly increase the chance of spring flooding and barge interests who argue that the FWS plan would devastate the barge industry by essentially creating a split barge season.

The Corps and the FWS still are engaged in formal consultation concerning management of the Missouri River. On August 31, 2000, the Corps published for public review the FWS’s draft biological opinion on the management of the river. To remedy the situation, the FWS requires "higher spring flows and lower summer flows than currently exist" – a split barge season.

Farmers and barge operators are angry at the proposed change, saying that the changes could ruin their livelihood, and that the agency is "overstepping its authority and threatening years of regional effort toward a compromise that would help wildlife without harming human uses on the 2,341-mile stream."

Missouri Senator Christopher Bond responded to the FWS’ proposed change in water flow, asserting that the FWS is "hijacking" the Corps’ management role. Moreover, Senator Bond proposed an amendment to the Energy and Water Appropriations Bill for fiscal year 2001 which states that "none of the funds made available in this Act may be used to revise the Missouri River Master Water Control Manual [if the revision] provides for an increase in the springtime water release . . . below the Gavins Point Dam." Skirmishes between the opposing interests are expected to continue in Congress and in the courts for the foreseeable future.

The Missouri Office of Attorney General has already filed suit against the FWS for failing to designate critical habitat for the endangered species as required by the Endangered Species Act. Environmental groups threaten to sue the Corps if it does not make these changes.

The Mighty Mo: From the Dakotas … to the Hudson Bay?

A less immediate issue but with greater potential impact, is an attempt by upstream interests to divert water from the Missouri River to the Red River which runs into the Hudson Bay. The possibility of an out-of-basin transfer came closer to reality last December with passage of the Dakota Water Resources Act (S632), a $630 million project that would allow construction of high volume conveyance features with the potential to divert large amounts of Missouri River water for out-of-basin purposes.

Although language in S632 purportedly prohibits an out-of-basin transfer, this legislation authorizes the construction of all the necessary conveyance features needed for the transfer of water except the final length of pipe that would connect the two trenches. In short, the project puts the horse before the cart, and as a practical matter, makes completion of the project a much more likely scenario.

Funding for this massive infrastructure project passed Congress despite strong opposition from environmental groups, Great Lakes states, and Canada, all of which oppose the transfer of biota from the Missouri River into a new eco-system and the potential for a massive exchange of biota. Many fear that we could create problems similar to those created by introducing zebra mussels via the St. Lawrence Seaway.

NPDES Program Implicated

Changes to the flow either through the FWS plan or out-of-basin transfers could also affect the ability of cities and industries along the Missouri River to meet the limits of their wastewater discharge permits under the National Pollutant Discharge Elimination System (NPDES) program. A decrease in water flow in the summer is particularly troublesome to dischargers whose limits are concentration-based.

To achieve compliance, the discharger would be forced to purchase and install additional technological controls, terminate or lessen the amount of the discharge, or face substantial environmental fines. Moreover, the recent and controversial rule issued by EPA which implements new TMDL requirements may result in even tighter permit limits.

Kansas Water Quality Standards Subject to Litigation and Legislation

The Kansas Department of Health and Environment (KDHE) was acting under a deadline imposed by the Kansas Legislature to issue water quality standards by July 1999. When the deadline was not met, environmental groups filed suit asking the EPA to promulgate new water quality standards. On May 19, 2000 a consent decree was entered in that case. On July 3, 2000, EPA proposed six water quality standards for Kansas. Because EPA did not finalize the proposed regulations within 90 days as required by section 303(c)(4) of the Clean Water Act, the Kansas Natural Resource Council and the Sierra Club filed a second lawsuit against the EPA on December 13, 2000 to compel the agency to finalize the proposed regulations.

Complicating matters, the Kansas Legislature is considering Senate Bill 204 that gives direction to KDHE regarding the content and performance of Use Attainability Analysis for waters of the state and establishes new subcategories for recreational use designations in Kansas. Kansas’ recreational use designation is one of the water quality standards disapproved by EPA.