[Senate Hearing 107-809]
[From the U.S. Government Publishing Office]
S. Hrg. 107-809
WATER RESOURCE MANAGEMENT ISSUES
ON THE MISSOURI RIVER
=======================================================================
HEARING
before the
SUBCOMMITTEE ON WATER AND POWER
of the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
TO RECEIVE TESTIMONY RELATING TO WATER RESOURCE MANAGEMENT ISSUES ON
THE MISSOURI RIVER
__________
JULY 10, 2002
Printed for the use of the
Committee on Energy and Natural Resources
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COMMITTEE ON ENERGY AND NATURAL RESOURCES
JEFF BINGAMAN, New Mexico, Chairman
DANIEL K. AKAKA, Hawaii FRANK H. MURKOWSKI, Alaska
BYRON L. DORGAN, North Dakota PETE V. DOMENICI, New Mexico
BOB GRAHAM, Florida DON NICKLES, Oklahoma
RON WYDEN, Oregon LARRY E. CRAIG, Idaho
TIM JOHNSON, South Dakota BEN NIGHTHORSE CAMPBELL, Colorado
MARY L. LANDRIEU, Louisiana CRAIG THOMAS, Wyoming
EVAN BAYH, Indiana RICHARD C. SHELBY, Alabama
DIANNE FEINSTEIN, California CONRAD BURNS, Montana
CHARLES E. SCHUMER, New York JON KYL, Arizona
MARIA CANTWELL, Washington CHUCK HAGEL, Nebraska
THOMAS R. CARPER, Delaware GORDON SMITH, Oregon
Robert M. Simon, Staff Director
Sam E. Fowler, Chief Counsel
Brian P. Malnak, Republican Staff Director
James P. Beirne, Republican Chief Counsel
------
Subcommittee on Water and Power
BYRON H. DORGAN, North Dakota, Chairman
BOB GRAHAM, Florida GORDON SMITH, Oregon
RON WYDEN, Oregon JON KYL, Arizona
TIM JOHNSON, South Dakota LARRY E. CRAIG, Idaho
DIANNE FEINSTEIN, California BEN NIGHTHORSE CAMPBELL, Colorado
MARIA CANTWELL, Washington RICHARD C. SHELBY, Alabama
THOMAS R. CARPER, Delaware CHUCK HAGEL, Nebraska
Jeff Bingaman and Frank H. Murkowski are Ex Officio Members of the
Subcommittee
Patty Beneke, Senior Counsel
Colleen Deegan, Counsel
C O N T E N T S
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STATEMENTS
Page
Baucus, Hon. Max, U.S. Senator from Montana...................... 1
Bond, Hon. Christopher S., U.S. Senator from Missouri............ 8
Burns, Hon. Conrad, U.S. Senator from Montana.................... 15
Carnahan, Hon. Jean, U.S. Senator from Missouri.................. 13
Daschle, Hon. Tom, U.S. Senator from North Dakota................ 6
Dorgan, Hon. Byron L., U.S. Senator from North Dakota............ 1
Fastabend, Brigadier General David A., Commander, Northwestern
Division, U.S. Army Corps of Engineers......................... 20
Frink, Dale L., North Dakota State Engineer, and Engineer-
Secretary to the North Dakota State Water Commission........... 38
Hagel, Hon. Chuck, U.S. Senator from Nebraska.................... 16
Hall, Tex, Chairman, Three Affiliated Tribes, Fort Berthold
Indian Reservation, New Town, ND............................... 46
Hawks, Bill, Under Secretary of Agriculture, Marketing and
Regulatory Programs, Department of Agriculture................. 24
Hofer, Douglas, Director, Division of Parks and Recreation, South
Dakota Department of Game, Fish and Parks...................... 42
Johnson, Hon. Tim, U.S. Senator from South Dakota................ 11
Sibley, Margaret, Director, Office of Policy, Bureau of
Reclamation, Department of the Interior........................ 25
Smith, David P., Deputy Assistant Secretary for Fish and Wildlife
and Parks, Department of the Interior.......................... 22
Smith, Hon. Gordon, U.S. Senator from Oregon..................... 5
Wells, Mike, Chief of Water Resources, State of Missouri......... 40
APPENDIXES
Appendix I
Responses to additional questions................................ 57
Appendix II
Additional material submitted for the record..................... 63
WATER RESOURCE MANAGEMENT ISSUES
ON THE MISSOURI RIVER
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WEDNESDAY, JULY 10, 2002
U.S. Senate,
Subcommittee on Water and Power,
Committee on Energy and Natural Resources,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:30 a.m. in
room SD-366, Dirksen Senate Office Building, Hon. Byron L.
Dorgan presiding.
OPENING STATEMENT OF HON. BYRON L. DORGAN,
U.S. SENATOR FROM NORTH DAKOTA
Senator Dorgan. We will call the hearing to order this
morning. This is a hearing in the Subcommittee on Water and
Power. We are conducting a hearing on a matter that is of great
significance to the heartland of our Nation, that is, the
management of the Missouri River and the issues pertaining to
the delays in issuing the revised master manual.
The fight over water is as old as people living in caves
wearing loincloths, and it does not seem to stop. This is a
fight over the management of the dams along the Missouri River,
over the management of the reservoirs and the river itself, and
for whose benefit that river has been managed.
Let me say that I have a self-interest here. My State is
host now to a flood that came and stayed forever, a flood the
size of the State of Rhode Island. In exchange for a Rhode
Island-sized flood in my State, that stayed forever, other
States got significant benefits. People in the State of
Missouri, for example, at some point could not play softball in
the spring in their parks because they had flooding that
destroyed everything, and the downstream States, from Missouri
on up, they have got the flood benefits that came from the
installation of these dams. We got the flood that came and
stayed.
We were promised a certain series of benefits from this.
What would be the interest of a State like North Dakota hosting
a Rhode Island-sized flood forever? Well, the interest was in
the Pick-Sloan plan. The people of North Dakota were told that
if they would play host to a flood that comes and stays forever
in order to provide benefits for others, we will provide you
certain benefits.
Among the benefits that we would have expected to occur
would be the management of this system in a manner that is fair
to all of the interests in the river. I must say, however, that
the mechanism by which that management exists today is out of
balance with the concept of fairness for the upstream States.
We are managing the river now based on an idea that was hatched
in 1943 and 1944. In the 1980's--excuse me, 1970's, it was
clear that that idea, that management plan had to change to
meet the realities of the new day. Some 30 and 40 years had
passed. There were new realities, and the suggestion was by the
Corps of Engineers and others that the management plan should
change to meet those new realities.
The Missouri River directly affects over 10 million people
in eight Missouri River Basin States, North Dakota, South
Dakota, Iowa, Nebraska, Missouri, Montana, Kansas, and Wyoming.
The management of this river is significant to the people in
all of the States, not just the Northern States, the Southern
States, but not just the Southern States, also the Northern
States.
The Missouri River master manual, the master control manual
for managing this water, was originally published in 1962. The
system is made up of six main stem dams and reservoirs,
including Fort Peck, Garrison, Oahe, Big Bend, Fort Randall,
and Gavins Point. The mainstream system has a storage capacity
of 73.4 million acre feet, making it the largest reservoir
system in North America.
As I mentioned, in recognition that a 40-year plan needed
to be updated, the Corps of Engineers began revising the master
manual in 1989, and I would like to have a chart--that is a
rather lengthy chart--just to show in terms of a timeline where
we are. This plan has been underway now for 12 years, and most
of us are fairly well out of patience. So I thought we would
show--each of these marks is a year--over 12 years what has
happened with respect to the master manual plan. Let me just
make the point that in 1989 the study was initiated, and the
proposal was it would take 6 months, and the master manual
would be revised in May of 1990.
As you can see, it does not appear the Corps has met this
date. May 1990 came and went, and then year after year after
year. We will have a great deal of discussion this morning
about what has happened up in this area, because in this area
we have really a thimbleful of policy and a barrelful of
politics, but you will see what has happened. In May 1990, the
expectation was that this master manual would be revised. We
sit here now in July 2002 and we have no master manual revised,
and this describes the failure. In my judgment, that failure is
an outrage. We should expect, all of us who live on that river
we should expect this master manual revision to be completed,
and completed soon.
Let me ask that we go ahead and take this away. We think we
all understand what all these marks mean. Year after year after
year after year, 12 years of stalling and delay, and what has
happened in most recent years is that promises have been made
and not kept.
Now, let me just make a couple of other comments. We were
finally told that May 31 of this year is when we would receive
the preferred alternative and the final plan. Well, May 31 has
come and gone, as well. We have not seen a preferred
alternative. The Corps has not published a final EIS. We are
now told the revisions have been remanded to the Fish and
Wildlife Service and the Corps of Engineers for, quote,
``informal consultations.''
As far back as November 30, 2000, Brigadier General Carl
Strock said there is significant agreement between the Corps
and the Service on the known biological attributes necessary to
recover the listed species. Now apparently they have to have
more consultations, which has meant they have not met the dates
they had promised us.
Navigation interests yield about $7 million in economic
benefits annually. That is far, far lower than was expected
much, much earlier when these dams were built. Upstream
recreation and tourism benefits yield about $80 million
annually, and those are increasing, while the barge traffic
continues to decline.
We have GAO reports that say that the Corps' Missouri River
management plan was based on assumptions about the amount of
water needed for navigation and irrigation in 1944, but they
are no longer valid, and the plan does not reflect the current
economic conditions in the Missouri River Basin. We have study
after study. I mentioned the GAO. The Congressional Research
Service and many other studies talk about the way this river
has been managed to the detriment of upstream States. The GAO
pointed out the Corps was giving recreation a lower operating
priority, even if this lower priority results in decreased
system benefits. The GAO said it sees no appropriate basis for
the Corps view.
The delays that have existed with respect to this
management plan are totally unacceptable. These are devastating
consequences to people who live in my State and other States.
They should expect our government to be able to move with some
dispatch and make thoughtful decisions.
I personally am out of patience. I think it is an outrage
that we have been promised for 12 years a revised operating
plan, and that operating plan has not been made available.
Let me tell you about Mel and Kathy Etsler. Mel and Kathy
Etsler, an older couple in North Dakota, bought a marina with
all of their life savings. It had a restaurant, a little bait
shop, and docks. They were on the reservoir. They were very
hopeful about their future. Well, the water is now 2 miles from
their marina. Mel and Kathy Etsler are just one more example of
people who are affected by the incompetent management of this
river and the dam systems. We are going to talk a lot about
that today, but the point is, this has to stop. This makes no
sense.
Some of the people who are concerned about this and upset
about this say, well, let us take the dams out, then. Just let
the water go. If somebody else wants the water, let them have
it. Let them have it all at once. That is not a thoughtful
approach in my judgment. We have dams that harness and regulate
that river, but they have to be managed. These dams and the
river must be managed for the benefit of all the States, but
that has not been the case, regrettably.
So we have a lot to say and a lot to do here today. This
will be a rather lengthy hearing. We have four of our
colleagues who wish to testify at the outset, and I am going to
recognize them in a moment. Senator Daschle will be here. I
will call on a couple of my colleagues. Senator Smith is the
ranking member on this subcommittee, and let me call on him.
When Senator Daschle comes--I believe he is going to be here at
9:45--I will recognize him, and then all three of the other
members of the Senate, and then we will come back to opening
statements, if that is satisfactory.
Senator Smith, would you proceed?
[A prepared statement from Senator Baucus follows:]
Prepared Statement of Hon. Max Baucus, U.S. Senator From Montana
Mr. Chairman, the Missouri River and its tributaries are the
lifeblood of Montana, supporting our vital agricultural and ranching
industries, and world class recreation and fishing. That's why I'd like
to commend you for holding this important hearing today on the future
management of the Missouri River. I know we share similar interests in
updating the management of the Missouri to better reflect the actual
needs of the Missouri River Basin states.
Mr. Chairman, I'm frankly getting tired of saying the same thing
again and again, and hearing the same thing again and again from other
Senators and my constituents--after more than 50 years, it's time to
change the Missouri River Master Manual. It's past time. We've been
struggling with this issue for more than 12 years and its time for the
Army Corps and the Administration to step up to the plate and make a
decision. The status quo is just not acceptable.
As we all know very well, the current Manual was designed to
support steady downstream flows for a barging industry that never
materialized. Managing the river to support a marginal annual barging
industry leaves upstream reservoirs and boat ramps high and dry,
particularly during droughts like the one Montana has suffered for more
than four years. This has a devastating impact on the vital recreation
economies of upstream states, particularly in rural states like
Montana. It's not much good for the fish that folks like to catch, or
the endangered and threatened species that depend on the river.
And, it's another blow to communities in eastern and central
Montana that are struggling through tough times, including drought and
low commodity prices. It's high time the Corps recognized the key role
recreation plays in the economies of local communities along the
Missouri. It's imperative that the Manual be changed to ensure adequate
lake levels in upstream reservoirs.
But, as has happened time and time again, the Corps has failed to
meet even its own deadlines for revising the Master Manual. Apparently,
a decision on a preferred alternative has been delayed indefinitely.
What's going on here? As I have stated before, the recent lawsuits by
the states of South Dakota, North Dakota, Montana and Nebraska over
Missouri River water should have been a wake up call to the Corps, not
a reason for further delay.
To add insult to injury, Mr. Chairman, I've received several
communications from the State of Montana, including the Governor's
office, that indicate to me Montana may not derive any real benefit
from any of the Corps' proposed alternatives for changing the
management of the Missouri River. This is so even though Montana will
bear the brunt of any adverse effects of the proposed ``spring rise''
from Fort Peck Dam. I supported the concept of the spring rise, as did
the State of Montana, on the condition that the revised manual result
in higher levels at Fort Peck Lake for recreation and fish,
particularly during drought years.
So, not only will we not see a revised Master Manual at any point
in the near future, Montana won't necessarily benefit from any revised
Manual that is eventually released. I've already indicated to the Corps
that I hope the continued delay in releasing a preferred alternative
for the Master Manual will result in a better outcome for Montana.
In short, Mr. Chairman, Montana is home to the headwaters of the
Missouri River. The water that originates in Montana, and the power
that it produces, provides a tremendous benefit to downstream and
surrounding states. Moreover, the Missouri and its tributaries are the
lifeblood of Montana, supporting our vital agricultural and ranching
industries, and world class recreation and fishing. We in Montana just
want a fair shake when it comes to how that water is managed. I don't
think that's too much to ask of our fellow Missouri River states or of
this Administration.
Life along the Missouri River is not what it was 50 or 60 years
ago. The economic, social and environmental conditions are not the
same. Why then do we continue to rely on a Master Manual that was
written for a world that no longer exists? It's time for a change, Mr.
Chairman.
Thank you again for accepting my testimony.
STATEMENT OF HON. GORDON SMITH, U.S. SENATOR
FROM OREGON
Senator Smith. Thank you, Mr. Chairman. I appreciate your
willingness to conduct this oversight hearing on the Missouri
River water resource management issues. The issues and efforts
to modify the Corps of Engineers master manual for Missouri
River operations have been the source of controversy for well
over a decade now. Therefore, it is not surprising that the
most recent time frame for release of the final environmental
impact statement has slipped from the administration's self-
imposed May 2002 target date.
The current efforts to review the master manual were
initiated by the Corps in 1989. In fact, the first draft
environmental impact statement was released by the Corps in
1994 with a preferred alternative. It subsequently took the
last administration until 1998, over 4 years, to issue a
preliminary revised draft environmental impact statement.
Much of the controversy is ostensibly being driven over how
to manage the river for three species listed under the
Endangered Species Act. They are, the endangered interior least
tern, the threatened piping plover, and the endangered pallid
sturgeon.
There is no consensus about how best to proceed in this
basin, which drains parts of eight States and empties into the
Mississippi River. All river navigation and flood control
downstream of Gavins Point dam to New Orleans will be affected
by any modifications to the Corps' master manual.
Just last year, the Senate voted 100 to nothing that the
Secretary of the Army during fiscal year 2002 may consider and
propose alternatives for achieving species recovery other than
the alternatives specifically prescribed by the United States
Fish and Wildlife Service in the biological opinion. The
Secretary shall consider the views of other Federal agencies,
non-Federal agencies and individuals to ensure that other
congressionally authorized purposes are maintained. Such an
effort takes time, but I would rather have river operations
done right than done hastily, and I think we need to give the
administration time to consider the proposed alternatives to
those measures being prescribed by the Fish and Wildlife
Service.
In fact, the Governors of Arkansas, Kentucky, Louisiana,
Mississippi, Tennessee, Minnesota, Missouri, Wisconsin, and
Illinois have signed letters to the President expressing
concerns about the serious impacts that changes to the Missouri
River operations will have on the Mississippi River, and urging
more disclosure of documents before any final decisions or
recommendations are made.
I would like to submit these letters, Mr. Chairman, for the
record, as well as a resolution by the Southern Governors
Association.* This resolution urges the Corps to consult with
affected inland waterway States prior to endorsing any proposal
that would alter the current edition of the manual.
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* The letters and resolution have been retained in subcommittee
files.
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While I do not represent a State affected by the master
manual, the situation raises a key resource issue that has
plagued the Pacific Northwest as well for over a decade. We are
maintaining and managing public lands, and in some cases entire
watersheds, only for ESA-listed species. There seems to be
insufficient, at least, regard for the economic or human
impacts, or the impacts on other species.
We are now contemplating managing an eight-State river
basin with impacts on 35 million people downstream for the
supposed benefit of three listed species. Even then, there is
concern about the effect of the proposed low summer and fall
flows on the sturgeon. We need to recognize as a society that
we cannot continue to manage large ecosystems only for the
benefit of one or two species. I believe we can improve our
environmental stewardship without forgetting our human
stewardship.
I look forward to hearing from today's witnesses. Again,
Mr. Chairman, thank you for holding this hearing.
Senator Dorgan. Senator Smith, thank you very much, and
with the forbearance of Senator Burns and Senator Hagel I would
like to call on the Senators who have come. We will call on our
colleagues for statements following the testimony of the four
Senators, if that is satisfactory.
Let me call on the majority leader, Senator Daschle.
Senator Daschle, we appreciate your appearance here today.
STATEMENT OF HON. TOM DASCHLE, U.S. SENATOR
FROM SOUTH DAKOTA
Senator Daschle. Thank you very much, Mr. Chairman, and I
appreciate very much my colleagues' indulgence. I thank you as
well for holding this hearing. It is one of the more important
questions, I think, facing our country and certainly the upper
Great Plains.
We are going to be talking about fundamental questions
about what value should guide the management of our country's
natural resources in this hearing, and I welcome your
addressing those questions. As the bicentennial of the Lewis &
Clark expedition approaches, we are faced with a stark choice.
As we are attempting to take the necessary steps to recover the
health of the historic Missouri River, the question is, are we
going to perpetuate the status quo and continue to allow it to
die a slow death, or are we going to take another direction?
For over 40 years, we in South Dakota and throughout the
Missouri River Basin have watched the Corps of Engineers slowly
kill this national treasure. The Corps has straightened out the
channel, changed the flow, and basically turned one of
America's greatest rivers, the river of Lewis and Clark, into a
drainage ditch, and the Corps has done all of this to prop up a
tiny downstream barge industry that never came close to meeting
its original expectations, and that has declined to the point
where it is now worth only a few million per year.
The Corps' current effort to update the Missouri River
master control manual, the policy document that governs the
Corps management of the river from Montana to Missouri, has
been a frustrating and time-consuming exercise. It demonstrates
not only that the Corps can be indifferent to the environment,
but also that the relationship between the Corps and the barge
industry often drives the Corps to ignore science and the law
in order to protect that special interest.
Throughout this review process, the Corps has bent over
backwards to protect the $7 million per year barge industry and
its own program to maintain the barge channel. Ironically,
maintaining the barge channel costs taxpayers over $7 million a
year, more than the annual value of the barge industry itself.
The Corps says that it needs to protect river navigation.
Consider the facts. There are 72 barges on the river. In any
given week during the busy summer months, you will be lucky to
see a dozen barges operating on the river hauling commercial
loads. The others were in dry dock or were parked, and empty.
The Corps management priority should be a concern to all
Americans. They are certainly of deep concern to South
Dakotans. The Missouri runs down the center of our State, and
is a major source of income, recreation, and pride.
More than 40 years ago, the Corps built dams up and down
the Missouri River in order to harness hydroelectric power. In
return, it was expected to manage the river wisely, and in
compliance with national laws. The Corps has not kept that
public trust. Today, the Missouri River is dying, in
significant measure due to the Corps' lack of concern about its
ecology.
The river currently nurtures three species currently on the
endangered species list, the piping plover, the least tern, and
the pallid sturgeon, whose survival is jeopardized by Corps
management, and the Corps continues to bend over backwards to
block the management changes necessary to meet the requirements
of the act and recover the health of the river, but this goes
way beyond three species. In fact, I would argue this has so
much more to do with the ecology of the river and the country
surrounding it than it does the three species itself.
Recent lawsuits against the Corps filed by South Dakota,
North Dakota, and Montana illustrate the frustration with the
willingness of the Corps to sacrifice the health of this river
with the overwhelming cost of that management regime in the
States. In recent years, studies were commissioned to determine
how to restore the health of the river. We now know what needs
to be done. The Fish and Wildlife Service has stated in a
formal biologic opinion that the flow of this river needs to
change more closely to mimic its natural rhythm, higher spring
flows and lower summer flows.
Under the law, the Corps knows it should take these
management changes, and yet here we sit, waiting and wondering
if the Corps will ever find the courage and will do what is
right and lawful. After 12 years of study and review of the
science and economics of river management, the Corps had
promised that it would announce long-awaited changes to the
management of the river by May 31. That date has come and gone
without any Corps announcement.
In addition, it has been reported that the White House has
intervened to defer any final decision until after November.
That this dodge may not be surprising is not any more
surprising than it is disappointing to people who care about
the fate of the river, but my hope is that management of the
river will be evaluated as a public policy issue, not as a
political or a parochial issue.
The committee can contribute significantly in that regard
by considering the record of the Corps management of this
historic river, reviewing the mountain of ecological and
economic analyses of management options, and pondering the
enormity of what is at stake with this decision. In the end, I
hope you will join in urging the Corps to issue new management
plans for the river as soon as possible, one that implements
the recommendations of the Fish and Wildlife Service and begins
the process of restoring this magnificent river to its health.
That would be an appropriate way to celebrate the bicentennial
of the courageous expedition of Lewis & Clark.
Thank you, Mr. Chairman and members of the committee.
Senator Dorgan. Senator Daschle, thank you very much. I
understand that you are going to have to leave, is that
correct?
Senator Daschle. That is correct.
Senator Dorgan. With the permission of the other Senators I
will call on the rest of the panel. Senator Bond, would you
like to go next? It does not matter. You had actually requested
to testify first at this hearing.
STATEMENT OF HON. CHRISTOPHER S. BOND, U.S. SENATOR
FROM MISSOURI
Senator Bond. I thank you, Mr. Chairman, and I just wanted
to advise the distinguished majority leader that I will be
talking about some of his comments if he wishes to stay for a
moment or two.
Senator Daschle. I am well represented.
[Laughter.]
Senator Bond. Okay. I thank the majority leader, and I
thank you, Mr. Chairman, for giving me this opportunity to
testify. You will be pleased and probably surprised to know
that these will be the most concise Missouri River remarks I
have ever delivered, as a special treat.
You have noted, as I think most of us understand, that few
issues are harder to sort out than water disputes. Many
elements of the dispute are complex, but the fundamental
political problem is quite simple. Mr. Chairman, you want the
river managed to support your State's needs, and others want
the river managed to support their State needs. Your so-called
Rhode Island flood in your State is actually a series of
reservoirs that you all value very highly for their
recreational benefits, and we commend you for that. There are
many different sides, and we only hope that the folks in the
administration will be able to find the correct balance.
This spring in Missouri we saw nine people die because of
flash flooding that occurred when rain in the basin raised the
river from below normal to above flood stage in less than 72
hours. This increase from 7 to 28 feet in 72 hours was without
the 2 to 3 feet extra that the Fish and Wildlife Service says
might make the pallid sturgeon feel more lovable.
Now, just last week, the Fish and Wildlife Service, in an
incredible precedent, has shut down the entire Lower Missouri
River as an alternative to allowing the usual practice of
letting the Corps move a few interior least tern eggs that are
resting on a small sand bar. The power of unelected bureaucrats
may be convenient to some now, but giving the unelected
absolute power is not what we were sent here to do.
For downstream Missouri and Mississippi River States, every
proposed option so far is bad. What the chairman insists that
the administration adopt is bad for Missouri, Iowa, Illinois,
Arkansas, Kentucky, Louisiana, Mississippi, and Tennessee, just
to name a few States.
Geography may not be everyone's strong suit, so I remind
everyone listening that the Missouri does not need any space.
It is connected to the Mississippi River, which gets as much as
two-thirds of its water during the summer from the Missouri.
While our Missouri Department of Natural Resources has a
number of recommendations on habitat improvement, our DNR
thinks proposed flow modifications are poor economic and
environmental policy. As indicated by Senator Smith, the
Southern Governors Association opposes it, 99 waterways and
levee districts have opposed it, all the major farm groups,
including the Farm Bureau, Wheatgrowers, Corngrowers, Soybean
Association and others oppose it.
Missouri farmers alone ship nearly $1 billion in grain on
our affected waterways. Contrary to the assertion of the
distinguished majority leader, the benefits of water
transportation are not limited to some insignificant $7 million
figure. A study done for the Corps of Engineers shows that
farmers in the heartland exporting to the world market save
over $200 million in shipping costs each year because of the
competition that the barges provide to railroads, which
otherwise would hold a monopoly. That is why the Maritime
Administration under the Bush administration and under the
Clinton administration opposed the preferred alternative that
the upstream States support.
In summary, I believe that the Government should protect
people from flooding, not cause floods. It should produce more
efficient transportation options, not railroad monopolies. The
plan we oppose fails because the value to fish habitat is
dubious, while the risk to people is very real.
I appreciate that you want to keep the lake level stable
and high, but while this may be good for you, it is bad for all
the downstream States. That was confirmed by testimony from
Omaha to St. Louis to Memphis to New Orleans. I assure you that
officials in Louisiana know their river reach better than you
and I do, and better than the Northwest division officials do.
With regard to the preposterous suggestion somehow that the
new administration is dragging its feet in not adopting the
Dakota-preferred plan, permit me to add some context. First,
the previous administration, the Clinton administration ducked
the issue for 8 years. In fact, as the chairman knows, there
was, and he said, there was a preferred alternative back in
1994 that had a spring rise and a low flow, and the Clinton
administration shelved the plan and sent the Corps back to the
drawingboard. I have the letter which announced in 1995 that
they would come back with a draft in 1997. We did not see
anything until 2001.
Back in the Clinton administration, Secretary of
Transportation Pena and Deputy Secretary of Agriculture
Rominger were very critical of the previous spring flood and
low flow alternatives in 1995. These are Clinton administration
officials, representing farmers and our transportation
networks, and I might say parenthetically that in addition to
transportation, the 1.4 million acres of fertile farmland in
Missouri protected from every year flooding is larger than the
State of Delaware.
Second, let us be clear, the issues are further complicated
because on October 29, 2001, our friend the senior South Dakota
Senator testified, I strongly support both the spring rise and
the split season, but on April 24 of this year he called on the
Bush administration to support halt, stop, end water releases
to stabilize water levels. After this flip-flop, if I were in
the administration I would be sending out a search party for
the real South Dakota position. Apparently they support a so-
called natural spring flood, but only if their lakes are at
unnaturally high stable levels. So much for a natural
hydrograph.
Finally, what the administration is apparently doing is
what every Senator here voted to instruct them to do last year
in Public Law 107-66, which is, as Senator Smith indicated, to
consider and propose alternatives for achieving species
recovery other than the alternatives specifically prescribed by
the U.S. Fish and Wildlife Service.
Further, the language directed the Secretary to ensure that
other congressionally authorized purposes are maintained.
Furthermore, the Senator from South Dakota included language
requiring that the Secretary not accelerate the schedule to
finalize the record of decision. Again, we all voted for this,
and no one attempted to modify it.
So it is obvious to me why this should take some extra
time. First, it is more important that it be a balanced and
correct decision than it be fast. It is an excruciatingly
difficult balancing act.
Second, the administration is doing what Congress told it
to do.
Third, this administration, the Bush administration
deserves a fraction of the 8 years of indecision we saw during
the previous administration.
Fourth, what Lower Missouri and Mississippi Governors want
is no less important for this administration to consider than
what the Dakotans want. This matter is so important to the 35
million downstream citizens that I hope the administration will
think twice before embracing the Dakotan plan, that it should
devise and adopt a balanced plan.
Since we are all State patriots today, I add in closing
that according to the latest Fish and Wildlife Agency funding
survey, while the States of North Dakota and South Dakota
raised from their own State sources $4.1 million for fish and
wildlife conservation measures in 2000, the State of Missouri
raises over $98 million every year, so I hope we can all agree
that following Missouri's lead might be a good place for
upstream conservationists to start.
I proposed a great number of measures to restore habitat on
the Missouri and Mississippi without harm to people, and I
pledge to help the citizens in the Dakotas improve their
recreational industry. If you wish help, Mr. Chairman, in
providing assistance to the fine couple who have the marina
that is 2 miles from the water, I will join you in supporting
funding to solve their problem.
Again, I respect the priorities of our good Dakota
citizens, and I hope that you will understand the priorities of
our citizens, and I would ask just to keep the record complete,
that we put in the public comments of the current Maritime
Administration and USDA in the record. I believe they are
probably more substantive than the sanitized testimony some
committee obviously and hastily threw together to ensure that
nothing is said, because the previous comments speak to the
needs of farmers and some of the miscalculations of
transportation data.
Also, just for your information, I would submit for the
record a letter of March 1995 from the Department of
Agriculture signed by Acting Secretary Richard Rominger, and a
letter of April 5, 1995 submitted by Secretary Federico Pena,
and also I have for your information and elucidation lengthy
testimony I gave in Cape Girardeaux, letters from Congressmen,
mayors, and Mississippi Governors, and the Southern Governors
Association so you will have a complete record.*
---------------------------------------------------------------------------
* The information referred to above has been retained in
subcommittee files.
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Thank you.
Senator Dorgan. Senator Bond, thank you very much.
Senator Johnson.
STATEMENT OF HON. TIM JOHNSON, U.S. SENATOR
FROM SOUTH DAKOTA
Senator Johnson. Well, thank you, Chairman Dorgan for
holding this timely and important oversight hearing into the
water resource management issues on the Missouri River. I would
like to recognize the presence of Doug Hofer, who is director
of the division of parks and recreation for the State of South
Dakota, who will testify later at today's hearing.
Doug and other folks at Parks and Recreation have performed
an absolutely Herculean job to keep open the boat ramps and
recreational sites.
As you know, Mr. Chairman, the mainstream reservoirs in the
Upper Missouri River Basin provide a wide array of recreational
opportunities for hundreds of thousands of anglers, sportsmen,
and wildlife enthusiasts. Unfortunately, a long drought in
combination with the failure of the U.S. Army Corps of
Engineers to update the Missouri River master water control
manual threatens the long-term health of the Missouri River.
South Dakotans understand the cycle of drought, even the
once-in-a-generation drought currently gripping the region. The
failure of the Corps to follow the law and revise a decades-old
river management plan is simply inexcusable. The U.S. Fish and
Wildlife Service has determined that the current Corps
operation of the Missouri River violates Federal law, violates
the Endangered Species Act, and the failure to restore more
natural flows to the Missouri River will result in the Corps
continuing to be in violation of the ESA. The path is clear,
and action is required, but yet the Corps continues to delay.
Throughout the spring, to maintain the necessary water
flows below Gavins Point Dam, the Corps released water from
Lake Sharp, Lake Oahe, and Lake Francis Case, negatively
impacting the multi-million recreational and wildlife economy
of South Dakota. This is not a small matter for my State. Last
year, 3 million visits were made to the Missouri River
recreational sites in South Dakota, contributing to an $84
million industry. In comparison, Corps mandated water releases
to support downstream navigation will cost my State more money
this year than the entire economic benefits of the negligible
barge industry.
The Corps failure to follow the law and revise the master
manual has real consequences for South Dakotans. While the
Corps haphazardly fluctuated the water levels of the South
Dakota reservoirs, marina operators such as Ken Dooley of
Platte, South Dakota, have suffered. The Corps decision to
lower Lake Francis Case by 3 feet this past spring left Ken and
other marina operators scrambling to keep the ramps operational
and businesses open. In response the State of South Dakota
filed a lawsuit against the Corps to halt releases from Lake
Oahe, that lawsuit led by our Republican Governor, Governor
Janklow.
Although litigation is not a long-term solution to the
problem, it is the only position left open after a decade of
delay and indecision.
Failure to revise the master manual in time for the 2003
operating season will result in the Corps breaking the law and
disregarding the U.S. Fish and Wildlife Service biological
opinion, and violating the Endangered Species Act. Last year,
top-ranking Army officials pledged to Congress that the Corps
would end 12 years of indecision and choose a new management
plan guided by scientific analysis, not guided by what upstream
members of the Senate want, or downstream members of the Senate
want, but by scientific analysis. This is best not made an
upstream-downstream political issue. What we need is to allow
these decisions to be made by the best scientific and economic
analysis available so that the balance is reached that
accommodates the best interests of our entire Nation and the
health of the Missouri River.
Recognizing the seriousness of a process that began in
1989, the Corps was expected to release a final environmental
impact statement with a preferred alternative for a new water
flow plan in May 2002. The Corps delayed, pleading the need to
consult with U.S. Fish and Wildlife Service and other Federal
agencies still further. However, on June 14, the Bush
administration indefinitely postponed releasing the identified
preferred alternative, throwing another roadblock to revising
the master manual, and threatening the sustainability of
America's longest river.
This consistent delay must end. The science and the law is
clear, and the Corps must implement the necessary changes to
sustain the viability of the Missouri River, not to do what
upstream Senators want, or do what downstream Senators want,
but to sustain the viability of the Missouri River. The Corps
must be held accountable for violating the public trust and
called to task for failing to implement a new adoptive
management approach for the Missouri.
I look forward to today's hearing and receiving testimony
from all witnesses, and again I appreciate this very timely
hearing on your part, Mr. Chairman. Thank you.
Senator Dorgan. Senator Johnson, thank you, and finally,
Senator Carnahan, you may proceed.
STATEMENT OF HON. JEAN CARNAHAN, U.S. SENATOR
FROM MISSOURI
Senator Carnahan. Thank you, Mr. Chairman. I thank you for
this opportunity to testify today on an issue that is of great
importance to both of our States, and I thank you, too, for
granting my request to allow a representative from the Missouri
Department of Natural Resources to testify today, and I also
want to thank my colleague, Senator Bond, for his ongoing and
vigorous support of this issue over the years.
We are joined by the Missouri congressional delegation in
support of this issue as well, and the Missouri Department of
Natural Resources and many other entities in my State. We stand
together as one voice on this topic. We are resolved to
preserve the Missouri River for its many uses while protecting
the environment for future generations.
I am here to address the economic and social upheavals that
would be certain in my State if drastic changes are made in the
management of the Missouri River. Generations of families have
worked hard to build homesteads and communities on the fertile
land of the Missouri River Valley. These families help feed the
world while providing the economic and social backbone for
their communities. They rely on sound flood control measures to
protect both their investments and their communities. I share
their outrage at the possibility that a Government-imposed
spring rise could threaten their livelihood. I share their
concern for unreasonably low summer flows that halt barge
traffic and further increase transportation costs for farmers
along the Missouri and the Mississippi Rivers.
These hard-working families deserve to till their land
without the threat of flooding from a man-made spring rise.
They are not alone in depending on the current management of
the river. There are millions of Missourians who rely on the
river's current management for power and drinking water. The
proposed lower summer flows will force powerplants in Missouri
to reduce or halt production at a time when it is needed most,
and low summer flows will also jeopardize the safe and stable
drinking water supplies in municipalities of all sizes
throughout Missouri.
I want to mention an incident that occurred back on October
10 2000. Then presidential candidate George Bush spoke to a
group of farmers in one of our Mississippi River communities,
and he said, and I quote, ``I stand with Missouri farmers. I
believe we can save species without affecting the farmers' way
of life.''
Well, I agree with the President. I hope he will honor his
commitment to Missouri farmers. Unfortunately, last Friday, in
an effort to protect two shorebirds, his administration
announced a decision to stop water releases that are critical
to Missouri's municipal water supplies, powerplants, and
navigational interests. This decision was made in spite of
significant increases in the number of interior least terns and
piping plovers over the last few years without changes in the
downstream flows. These increases are due in part to mitigation
efforts and other prudent conservation programs that I am proud
to support. Such programs protect endangered species without
endangering livelihoods.
The recent decision to stop upstream water releases will
likely halt barge traffic along a 250-mile stretch of the
river. The decision denies already struggling Missouri River
farmers an additional mechanism to get their product to market
in a cost-effective manner, and this decision sets a dangerous
precedent for future river management decisions. It puts
downstream powerplants, water supplies, and entire communities
at risk. It allows Federal agencies to wreak havoc in thousands
of lives.
I hope that families and communities in my State can
sometime soon have a degree of certainty when making long term
decisions and investments. Standing with Missouri farmers means
our agricultural communities can count on government to work
with them to protect and not destroy generations of hard work.
Standing with Missouri farmers means not jeopardizing their
power sources and drinking water supplies. Standing with
Missouri farms means no manmade spring rise and no man-made low
summer flow. I am confident that a thorough evaluation will
lead to the conclusion that dramatic changes in the Missouri
River master manual will lead to economic disaster and destroy
generations of hard work.
Thank you, Mr. Chairman, for this opportunity to reflect
the feelings of the many Missourians whose livelihood and
future depends on the flow of the Missouri River.
Senator Dorgan. Senator Carnahan, thank you very much. I
think the testimony from the four colleagues has been an
excellent review of the fundamental disagreement that exists
between upstream and downstream interests here. I am going to
defer questions. We have the opportunity to ask questions of
each other all day, every day working here in the Senate, but I
want to call on Senator Burns and Senator Hagel, who did not
have an opportunity to make statements, and I would ask before
we do that, are you intending to ask questions of this panel?
We have eight other witnesses today, and if you have questions
we will ask the panel to remain. If you do not have questions,
we will ask, then, for your opening statements.
Senator Burns. They might have questions.
Senator Dorgan. Will you be having questions, Senator
Burns? If not, let us thank you very much for your preparation,
for your testimony here today, and your contributions. Your
full statements will be made a part of the permanent record,
and we again appreciate your continuing work on this issue.
Why don't we ask panel 1 to come forward, and as they get
seated, then I am going to ask Senator Burns and Senator Hagel
for their statements, and then we will begin the testimony from
the first panel. As I call them forward--Brigadier General
David Fastabend, Commander, Northwest Division, U.S. Army Corps
of Engineers, David Smith, Deputy Assistant Secretary for Fish
and Wildlife and Parks, U.S. Department of the Interior, Hon.
Bill Hawks, Under Secretary of Agriculture, Marketing and
Regulatory Programs, U.S. Department of Agriculture, and
Margaret Sibley, Director of Policy, Bureau of Reclamation,
U.S. Department of the Interior. We appreciate very much the
presence of all four of these witnesses, and if you would
please take your place at the table, I am going to call on my
colleague, Senator Burns, first for his comments, and again let
me thank him for his forbearance.
STATEMENT OF HON. CONRAD BURNS, U.S. SENATOR
FROM MONTANA
Senator Burns. Well, I thank the chairman for holding this
hearing, and we are where it all begins, in Montana. The
Missouri River, I have lived on both ends of it and traveled
every State in between, and I would say that this really is not
a fight. We had the Missouri River Basin put together a long
time ago, and they ran the river pretty good I think, but this
is years and years ago, so my institutional knowledge of the
river goes way back to a level of agriculture and of course
management of the river and all this, and I will be like Yogi
Berra, this is deja vu all over again.
We in Montana have heard conflicting stories. It all
depends what suits you as to the position you take on the
management of the river. It is a tremendous resource that
middle America has, and we have seen the floods come and go, we
have seen dry weather, but keep in mind basically this argument
that we are having right now is a result of 5 years of drought
in the intermountain West. It is the volume of water that flows
from one end, from Three Forks, Montana, where three rivers
make up the Missouri, the Galatin, the Jefferson, and the
Madison.
We have had no snow pack. Especially that river is fed by--
the majority of the volume of that river comes off of the Rocky
Mountains, so we are talking about agriculture and the effects
of it. If you want some endangered species, and there is only
three been mentioned here, I can give you another list,
including the plover.
If you all want some black-footed ferrets, we can get some
of those for you. We can get you some grizzly bears, wolves--we
have got a lot of black-footed ferrets, and we have to contend
with ours, too, so whatever we do to that river effects also
another endangered species called the American rancher and
farmer from the North Dakota line clear to Three Forks,
Montana.
I was at Fort Peck last Saturday, and I will tell you that
reservoir is low. If you want a spring rise--and as you know,
once you let water go it does not come back up that river, I
will tell you that.
We also produce power at Fort Peck, and in the spring rise,
or the release of the water, we are producing a lot of power
that is not worth much because there is a lot on the grid. Then
comes midsummer, when electricity becomes a little bit scarce,
we are way down. Just talk to the Western Area Power
Administration and they will tell you about how that affects
them.
So we all have our different challenges. We are building a
new warm water fishery at Fort Peck to feed our recreation
industry. We believe that is very, very important, and of
course when we come to the discussion of the master manual,
why, that brings up another one, but actually I think we have
one agency that probably exerts a little more influence on the
management of that river than basic common sense, and that is
what sort of tilts the debate whenever we start talking about
that magnificent river.
So yes, we are going to try to hang on to all of our water,
as much as we can. We know the spring rise, there is no part of
that river that experiences erosion that actually takes private
land into the river and is never replaced, between Fort Peck
and Culbertson all the way to basically--maybe all the way to
Williston on some of those releases.
Do we build into the manual that the land lost because of
that sudden release of water out of Fort Peck, are those
landowners compensated, because I have got a rancher down there
who says he loses 20 acres a year. Now, pretty soon that goes
to bite on you a little bit, and we hear no compensation for
that, and yet in low years they say take your pipes out of the
water because we cannot irrigate.
Are we going down this thing of a mentality of what
happened in the Klamath Basin of California? Senator Smith is
exactly right, the policies that we have here should be
consistent, should be consistent and not be subject to a
change, or the whims, but basically what we are talking about
is the volume of water and when it is released, and common
sense has to take place on that.
So we know what drought is. We know the people that depend
on the river. We understand that when there is drought and low
water that all of us must share and sort of feel the pain all
the way from Three Forks to St. Louis, and we would participate
in that, because we understand what drought is all about,
because we all need that river, and a common sense view of it
and sitting down with the States and coming up with a plan--you
know, you can plan--we know what the snow pack is. We measure
the snow pack in the mountains. We know what the approximate
run-off will be. What we do not know is the amount of rain or
moisture that will fall between Helena, which is the gates of
the mountains--it starts into the prairies. You have got to
remember, the Missouri River runs north when it first starts
out.
I have been dealing with Canada, you know. We are supposed
to get all of that water out of all the land that drains into
the Milk River, too, that would get us up into Alberta, but I
am not having a lot of luck getting that land back up there.
The Canadians take a dim view of everything that happens above
the 49th.
But nonetheless--but we understand that. We understand how
those flows flow. What we do not understand is sometimes the
heavy rains or no rains that flow on further downstream from
the gates of the mountains. So we are willing to work with
anybody, understanding that it all starts in Montana. We have
certain obligations in power production, irrigation, and
recreation, and would willfully share what goes downstream with
those needs if we all balance and share in the pain alike. That
is what this is all about.
So I thank the chairman for this hearing. I look forward to
the testimony of those who are in charge of the management of
the river, and I thank you.
Senator Dorgan. Senator Burns, thank you very much.
Senator Hagel.
STATEMENT OF HON. CHUCK HAGEL, U.S. SENATOR
FROM NEBRASKA
Senator Hagel. Mr. Chairman, thank you. I, too, add my
appreciation to you holding this hearing. I have a statement I
would like to ask be included in the record, Mr. Chairman, as
well as a letter I received yesterday from the president of the
Nebraska Farm Bureau Federation.
Senator Dorgan. Without objection.
Senator Hagel. I appreciate that. Thank you.
Let me take a minute or two to respond generally to what I
have heard this morning, and look forward to hearing yet in
this hearing from our witnesses. I think the two Missouri
Senators summed it up pretty well as to the perspective here
that most of us are trying to approach this difficult issue
with. This is, as Senator Burns has stated, a challenge of
balanced perspective. I do not know if there is a Senator in
the U.S. Senate who does not care about wildlife and the
environment Maybe there is. They have not so stated if there is
such a Senator, but the fact is, we need to approach this with
some common sense and understand all the interests here.
This hearing is very valuable for many reasons, but one
reason it is so valuable, Mr. Chairman, is because it allows
all interested parties to understand what is at stake here. We
are talking about power generation, huge amounts of power
generated along the Missouri River that are affected, will be
affected if this plan would be allowed to hold and to stay.
You heard much this morning about agriculture,
transportation, navigation. We have not even touched upon the
municipality interest along the Missouri River. I mean,
drinking water, sanitary, storm sewers, flooding. These are
huge interests that affect real people. The cost of these
issues are immense as to if we pull back what would happen, and
allow a radical change in the course of management along the
Missouri River.
Wildlife habitat, recreation are important, and I would
suggest to my colleagues from the Dakotas that wildlife
habitat, hunting, fishing, recreation are important to States
downstream as well. We in Omaha, for example, have a very
significant investment in an area called the Old Market that is
along the Missouri River. We have significant marinas along
that river, a lot of fishing and hunting, so downstream
interests in that area are not exclusive to the interests of
the upstream States.
These issues are obviously of critical importance to each
of our States, to the country, to the management of our
resources, and it is through hearings like this that we can
develop, I hope, not just an understanding but a common sense
approach to how we are going to go forward here.
I am not one, Mr. Chairman, who believes that we need to
rush to a conclusion today or tomorrow. I am one who believes
that the outcome is far more important than the timing of the
outcome, because the consequences are dramatic, and the
consequences will affect real people in real ways and. in fact,
ways that we cannot quite imagine here today.
I might also remind this panel and those here today that
the Senate voted overwhelmingly last year to give the Corps the
authority to review and propose alternatives other than those
proposed by the Fish and Wildlife Service. That language, by
the way, included in the Senate Energy and Water Appropriations
bill requires that other congressionally authorized purposes
for the river be maintained, and I hope the administration
follows that mandate from Congress.
I hope, as Senator Carnahan says, that President Bush
remembers the pledges he made as he campaigned and carried
Missouri, and maybe carried Missouri in that election because
of that promise, so we have significant political dynamics that
are thread throughout. The currents are running swiftly and
deeply here, but I think we all want to keep it above the
politics because the interests are so real that affect all of
our constituencies, and again I say to you, Mr. Chairman, thank
you for allowing this discourse and free exchange of
information.
I do not know of an issue that is affecting and will affect
my State as much for the short term and long term as this
issue, so thank you very much, and I look forward to hearing
from the witnesses.
[The prepared statement of Senator Hagel follows:]
Prepared Statement of Hon. Chuck Hagel, U.S. Senator From Nebraska
I thank the Chairman for the opportunity to review the management
of the Missouri River. This is a matter of great importance to Nebraska
and every other Missouri River Basin state. Unfortunately, it has also
become an issue that has pitted region against region, state against
state.
Last week, without public comment, without Congressional
notification, and without precedent, the Fish and Wildlife Service shut
down the Missouri River by telling the U.S. Army Corps of Engineers
that they could not relocate the nests and eggs of two types of birds,
the piping plover and least tern. That will keep the Corps from
increasing dam releases to support water levels on the Missouri, which
is already at very low levels. As a result, all barge activity--from
Sioux City, Iowa, to Kansas City, Missouri--could very well be
grounded.
While I support the goals of the Endangered Species Act, it
certainly was never intended to trump every human interest. A balanced,
common-sense approach to the management of the Missouri River is
required. That means factoring into this equation all competing
interests along the Missouri, from agriculture, to navigation and
transportation, to wildlife habitat preservation, and recreation.
agriculture
Should any changes be made to the Missouri River's water control
plan, agriculture would be one of the most dramatically affected
sectors. The Nebraska Farm Bureau has asked that I convey their
concerns to the subcommittee. I request that a copy of their July 9,
2002 letter to me be inserted into the record.
Altering the management of the river by allowing for a spring rise
would not only impact farmers in downstream states--Nebraska, Iowa,
Missouri and Kansas--by flooding their land, but would also affect
barge movement on the Nlissouri and Mississippi. River transportation
of agricultural commodities is critical to the overall farm economy--
and is one of America's major competitive advantages in world grain
trade.
Without the water transportation alternative, farmers will have to
rely on what amounts to a transportation monopoly, resulting in higher
prices and less reliable service. According to the Food and
Agricultural Policy Research Institute (FAPRI), the loss of Missouri
River commerce could reduce corn prices by 19 cents per bushel. Our
farmers could not afford this.
Also, according to the Corps of Engineers, flooding and drainage
problems could impact up to 1.4 million acres of farmland, an area
larger than the state of Delaware. This would significantly affect the
30,400 residential and commercial buildings along the river--worth an
estimated $17.6 billion.
It is no surprise that national farm organizations, including the
National Association of Wheat Growers, National Corn Growers
Association, American Soybean Association, Ag Retailers Association,
American Farm Bureau Federation, National Council of Farmer
Cooperatives, and the National Grain and Feed Association, strongly
oppose the proposed changes.
power industry
Electricity generation is another sector that would be drastically
impacted by any changes to the river's management. Nebraska's two
largest providers of electric power, Omaha Public Power and Nebraska
Public Power Districts, are strongly opposed to any flow changes to the
Missouri River.
Reducing river flows would make it nearly impossible for electric
generators located along the river to comply with federal water laws.
Reduced river flows could cause a reduction or even a complete shutdown
of power generation along the river. That is not something we can take
lightly, considering that as many as twenty-five power plants along the
river--with a combined generating capacity of over 15,000 megawatts--
could be adversely impacted by any changes made to the flow.
It is estimated that such flow changes would cost Nebraska and Iowa
power plants anywhere from $9 million to $78 million annually, and
could total between $25 million and $200 million for all Missouri
River-based plants below Gavins' Point Dam. These costs would be
directly passed on to consumers.
Also, Missouri River flow reductions would reduce hydropower
generation by the Western Area Power Administration (WAPA). The Power
Administration estimates that this will cause up to a 21 percent
increase in the cost of the power it sells to customers.
municipalities
We must remember that cities and towns along the river rely on an
adequate water supply for essential services, from drinking water, to
sanitary and storm sewers, to industrial uses. Omaha, Nebraska, for
example, has committed several millions of dollars into new development
on the river front. Omaha Mayor Mike Fahey has told me that changes to
the river's flows would dry up marinas and leave recreational boaters
grounded. Recreational activities--fishing, hunting and wildlife
watching--are a true benefit created by the river. These activities
create jobs, and increase property values and tax revenue. And this
holds true for those of us downstream from Gavins' Point Dam. Indeed, a
vibrant, flowing Missouri River is a key element for cities like Omaha
and Council Bluffs, as well as every other community along the river,
both upstream and down.
Finally, it should be noted that much of our water supply comes
from the river. And river levels have an impact on the releases of our
sanitary systems and storm sewers.
Mr. Chairman, we need to re-examine the decisions made by our
federal agencies, particularly the Fish and Wildlife Service. We need
to provide ultimate authority to a single agency, while allowing the
opportunity for input from other agencies and the general public. The
Corps of Engineers seems to be the appropriate agency to grant this
ultimate authority.
Last year, I, along with the rest of the Senate, voted to give the
Corps the authority to review and propose alternatives other than those
proposed by the Fish and Wildlife Service. That language--included in
the Senate Energy and Water Appropriations bill--requires that other
congressionally-authorized purposes for the river be maintained. I hope
the Administration follows that mandate from Congress.
The Bush Administration's decision to reconsider the impact of
proposed changes to the Missouri River flow was the responsible thing
to do. When it comes to management of the Missouri River, a good
decision is far more important that a quick decision. Rushing to
judgment to satisfy an arbitrarily set deadline, without considering
all the economic and pubic safety consequences, is neither responsible
nor fair to the taxpayers or those whose livelihoods depend on the
river. There is too much at stake, for too many people.
Senator Dorgan. Senator Hagel, thank you very much. As
always, a thoughtful statement. Let me say, though, on the last
point you made, I am actually trying to determine what
commitment was made in the State of Missouri by the President.
I think that is very helpful for us to understand as well. No
such commitment was made, I believe, in Montana or North
Dakota, so I am trying to understand exactly what this
commitment was, and we will try to track all that down so we
can evaluate the background of this. But again, thank you both
for your statements, and Senator Johnson, thank you for your
statement as a witness today.
We will hear from the four witnesses at the table, and then
we will ask questions, and then we will have the four final
witnesses.
Brigadier General David A. Fastabend, commander of the
Northwestern Division, U.S. Army Corps of Engineers. General,
thank you for being with us. Your entire statement will be part
of the record. We would ask that you summarize, so why do you
not proceed.
STATEMENT OF BRIGADIER GENERAL DAVID A. FASTABEND, COMMANDER,
NORTHWESTERN DIVISION, U.S. ARMY CORPS OF ENGINEERS
General Fastabend. Thank you very much, Mr. Chairman,
members of the committee. Good morning. You have my prepared
statement, of course. It will be entered into the record.
As Commander of the Northwestern Division of the Corps of
Engineers, I have been dealing with Missouri River Basin issues
for approximately 11 months. I will tell you that my entire
military career up to this assignment has been in tactical
combat engineer units. I was recently asked, ``given that
background, what has prepared you to deal with the Missouri
River Basin issues?'' My answer without hesitation was
``Bosnia.''
When I was in Bosnia, I found myself between groups that
felt very passionately and very divergently on what the future
should be. These groups had a great deal of difficulty
communicating with each other. There was a legacy of distrust
and perceived wrongs, and each group felt very passionately
that God was on their side. My experience in the Missouri River
Basin has not been all that different.
The Corps has a role to manage the Nation's inland
waterways, and the inland waterways are a precious resource
that many people feel passionately about, and many people have
very divergent ideas about how those precious resources should
be managed. When you combine the role of the Army's Corps of
Engineers in that respect, with the Army's traditional ethic of
being a selfless servant to the Nation, you get an agency that
is famous, or infamous, if you will, for its stoic and silent
endurance under criticism.
Some people like to say that the Corps only cares about
navigation, or the Corps only cares about hydropower, or the
Corps only cares about flood control. The Corps does not ``only
care'' about any of these things. There is one thing that the
Corps cares about. The Army Corps of Engineers cares about
executing the will of the American people, as expressed by
their elected representatives here in Congress, as directed by
the national command authority, and as sanctioned by the
courts. That is what we care about, and that sounds simple, but
the reality is that over time the American people have given us
multiple instructions.
In the 1930's and the 1940's they told us to build,
operate, and maintain these projects for multiple purposes. In
the 1970's, they had additional instructions that included the
Endangered Species Act and the National Environmental Policy
Act. In the eighties we had the National Historic Preservation
Act, and the Native American Graze Protection and Repatriation
Act. I respectfully suggest to you that no one ever really
stopped to think if any of these instructions might perhaps at
times be contradictory. Our challenge is to try to resolve
these contradictions and faithfully execute the will of the
American people. It has become more complicated as the
agencies, my peer agencies that are doing their job to the best
of their ability, have had to make specific rulings,
particularly on endangered species.
The law they used to make those rulings and the rulings
themselves came decades after those projects were built, and
therefore they were not necessarily designed to accommodate
those considerations. So we have some challenges, and I welcome
this opportunity to describe those challenges to you so that
you can see first-hand the kind of challenges we face.
Yesterday, I was on the bank of the Missouri River and
someone asked me what it feels like to be a ``human pinata.''
It feels a lot better than you might imagine. In the Corps of
Engineers, we are absolutely proud of the role we have in
applying the best available science, the best available
engineering judgment to resolve these issues, to balance the
purposes for which these projects were built, while
simultaneously complying with the Endangered Species Act and
our trust and treaty obligations to federally recognized Native
American tribes.
In the Army we have a saying: ``Good news, you are on
point, and it is a position of honor.'' Being on point is the
most dangerous position to have, but only the best get it, and
only the most trusted get it. I believe that the Northwestern
Division of the Corps of Engineers is on point in the Missouri
River Basin. It is a position of honor. We welcome the
challenge. We are proud of what we have done, and I look
forward to your questions.
[The prepared statement of General Fastabend follows:]
Prepared Statement of Brigadier General David A. Fastabend, Commander,
Northwestern Division, U.S. Army Corps of Engineers
Mr. Chairman and Members of the Subcommittee, I am Brigadier
General David A. Fastabend, Commander of the Northwestern Division of
the U.S. Army Corps of Engineers. It is my pleasure to be here today to
testify on water resource management issues on the Missouri River.
The Army Corps of Engineers operates a system of six dams on the
Mainstem of the Missouri River for the Congressionally authorized
purposes of flood control, hydropower, water supply, water quality,
irrigation, navigation, recreation, and fish and wildlife. The Missouri
River Master Water Control Manual (Master Manual) sets forth the
guidelines for operation of the system.
There are a myriad of complex operational and resource management
issues surrounding revision of the manual. Upstream interests want
high, stable lake levels to address recreation, irrigation, and
hydropower needs. Environmental interests seek a hydrograph that more
closely mimics the natural hydrograph of the Missouri River. Upstream
and downstream interests below the dams support different flow regimes
for flood control, water supply, water quality, recreation, and
commercial navigation on the Missouri and Mississippi Rivers.
During the period of 1987-1992, the Missouri River basin
experienced a moderate to severe drought. As a result of the drought,
the Missouri River Mainstem reservoirs were drawn down significantly to
meet authorized purposes. There were numerous lawsuits and inquiries
concerning the operation of the reservoirs. In November 1989 the Corps
voluntarily initiated a Review and Update of the Master Manual to
address concerns over the adequacy of the existing water control plan
and determine operating criteria that might better serve the
contemporary needs of the Missouri River basin. A Draft Environmental
Impact Statement (DEIS) which included a Preferred Alternative (PA) was
published in 1994. There was no agreement in the basin on this PA. In
an effort to foster basin consensus regarding a flow management plan, a
preliminary revised DEIS, which identified eight representative
alternatives, was published in 1998.
Two bird species, the threatened piping plover and the endangered
interior least tern, were listed in 1985. The pallid sturgeon was added
to the list of endangered species in 1990. Although the Corps and the
United States Fish and Wildlife Service (Service) had consulted
formally under Section 7 of the Endangered Species Act (ESA) in 1990 on
the effects of Mainstem System operations on terns and plovers, and had
consulted informally during the 1990's on impacts to pallid sturgeon of
various project operations, in April 2000 the Corps requested formal
consultation on the current operation of the Mainstem System, the
Missouri River Bank Stabilization and Navigation Project (Sioux City,
Iowa to St. Louis, Missouri), and the current operation of the Kansas
River Reservoir System with regard to effects to terns, plovers,
sturgeon, and the bald eagle. A Final Biological Opinion (BiOp),
received from the Service on November 30, 2000, concluded that current
operations jeopardize the continued existence of the piping plover,
interior least tern and pallid sturgeon. As a component of the
Reasonable and Prudent Alternative (RPA) to jeopardy, the Service
indicated in their Final BiOp that higher spring releases and lower
summer releases from Gavins Point Dam, the lowest dam on the system are
necessary to preclude jeopardy of the three protected species.
On August 31, 2001, the Corps published a revised Draft
Environmental Impact Statement (RDEIS) on modification of the Master
Manual. The RDEIS identifies the impacts associated with six
alternative operational plans. In addition to the current Water Control
Plan (CWCP), the Corps analyzed a Modified Conservation Plan (MCP). The
MCP includes more stringent drought conservation measures and all of
the flow-related elements of the Reasonable and Prudent Alternative
(RPA) with the exception of modified releases from Gavins Point Dam.
The RDEIS also analyzed four alternatives that added various Gavins
Point Dam release changes to the MCP. These latter four alternatives
addressed the full range of changes in releases from Gavins Point Dam
that the Service included in the RPA in its November 2000 BiOp and are
called the GP alternatives. The release of the RDEIS marked the
beginning of a six-month public comment period. Tribal and public
workshops and hearings were held throughout the Missouri River basin
and at locations in the Mississippi River basin. Oral, written, and
electronic comments were taken until February 28, 2002. Over 55,000
comments were received.
The Corps has reviewed all of the comments received, all
information developed in the course of the 12-year effort on possible
revisions to the Master Manual, including the BiOp and the recent
National Academy of Sciences Report for the Missouri River published in
January 2002. We are working to achieve an outcome that meets the
contemporary needs of the Basin and the Nation, serves Congressionally-
authorized project purposes, complies with environmental laws including
the ESA, and fulfills the Corps responsibilities to Federally-
recognized Tribes.
The Corps and the Service now have entered into informal ESA
consultation and are meeting regularly. During this informal
consultation process, the Corps and the Service will work to assess
available scientific and technical information and explore a range of
possibilities regarding operation of the system.
The Corps will use the results of the consultative effort as the
Final Environmental Impact Statement (FEIS) is completed. The Corps
will complete a FEIS that will include a description of the
environmental and economic impacts of a preferred alternative and will
offer a 30-day review and comment period on that document.
The FEIS will address the Tribal and public comments received in
response to the RDEIS and present the new PA and its impacts. Following
the FEIS, the Corps will prepare a Record of Decision, revise the
Master Manual if appropriate, develop an Annual Operating Plan, and
implement that plan.
Mr. Chairman, this concludes my statement. I would be happy to
answer any questions you or the other Subcommittee members may have.
Senator Dorgan. General, thank you very much. Next, we will
hear from David Smith, Deputy Assistant Secretary for Fish,
Wildlife, and Parks, Department of the Interior.
Mr. Smith, why don't you proceed.
STATEMENT OF DAVID P. SMITH, DEPUTY ASSISTANT SECRETARY FOR
FISH AND WILDLIFE AND PARKS, DEPARTMENT OF THE INTERIOR
Mr. Smith. Thank you, Mr. Chairman.
Mr. Chairman, members of the committee, I am David P.
Smith, Deputy Assistant Secretary for Fish and Wildlife and
Parks, Department of the Interior. I appreciate this
opportunity to present testimony on behalf of the Department
concerning the current and future management of the Missouri
River and the relationship of that management to the Endangered
Species Act. Before I continue with my statement, Mr. Chairman,
I would like to offer some brief remarks regarding the events
of last week on the Missouri.
As you are probably aware, the Corps of Engineers
voluntarily halted action to assist navigation that would raise
water levels of the lower portions of the Missouri River after
contacting the Service and being notified that these actions
may inadvertently run afoul of the provisions of the biological
opinion for current year operations.
We understand the difficulties the Corps faces this year in
meeting the challenges of operating the system in drought
conditions, and the Service has already begun to work closely
with the Corps to ensure that both agencies meet their
responsibilities under the Endangered Species Act. Under the
ESA, Federal agencies are directed to use their authorities to
conserve endangered and threatened species. The Missouri River
is home to three of these species, the endangered pallid
sturgeon and least tern, and the threatened piping plover.
The Service assists other Federal agencies to ensure that
their actions do not jeopardize the continued existence of
these species. For the last 12 years, the Service has worked
with the U.S. Army Corps of Engineers to address management of
the Missouri River so as to help conserve and recover these
species while still providing many beneficial economic and
recreational uses of the river.
Given the complexity of the system, management of the
Missouri River has never been a simple issue. The river system
encompasses nearly 530,000 square miles and drains
approximately one-sixth of the land mass of the United States.
The Missouri River Basin is home to about 10 million people in
10 States and 28 Native American tribes. The river's natural
heritage, as well as its role in human history, is part of the
heritage of all the States through which it flows, including
North Dakota and the Nation as a whole.
The challenge is to balance the needs of the many
communities in the basin while conserving the listed species.
We believe compliance with the Endangered Species Act on the
Missouri River can be accomplished in a manner that benefits
both wildlife and people. At present, the Corps and the Service
have entered into informal consultation and are working at
multiple levels to address issues related to future operations
in the Missouri River system. The service in the regional
office is working with General Fastabend and the Corps' staff
in Omaha, and the U.S. Fish and Wildlife Service's Director
Steve Williams, has met repeatedly with General Griffin here in
Washington.
We are working towards a consultation agreement which will
address how best to proceed from here. Considering all of the
conservation tools available to us, we are committed to
exploring a variety of approaches towards meeting our
obligations to conserve the listed species and provide for
beneficial economic and recreational uses of the river. These
discussions are continuing regularly, but we are not yet at a
point where we have reached an actual agreement on exactly how
to proceed.
Mr. Chairman, we appreciate your interest in the management
of the Missouri River, and the efforts by the U.S. Fish and
Wildlife Service and the Corps of Engineers to jointly protect
the river's diverse natural resources and economic values. We
will keep you and the other interested members of Congress
advised of our progress on this issue.
This completes my prepared remarks. I look forward to
answering your questions.
Senator Dorgan. Mr. Smith, thank you very much. Next, we
will hear from Hon. Bill Hawks, Under Secretary of Agriculture,
Marketing and Regulatory Programs, the Department of
Agriculture.
Mr. Hawks, thank you for being here. You may proceed.
STATEMENT OF BILL HAWKS, UNDER SECRETARY OF AGRICULTURE,
MARKETING AND REGULATORY PROGRAMS, DEPARTMENT OF AGRICULTURE
Mr. Hawks. Thank you, Mr. Chairman, members of the
committee for the invitation to appear before this committee
today. The Missouri River is very important to the Department
of Agriculture. It is important that we work together to find a
balanced, science-based solution that meets the needs of all
interested parties. This situation is complicated by a number
of competing interests, as we have already heard here this
morning, and the purpose that the river serves among several
States. However, I believe that we can work together to find a
reasonable solution. I have a saying that I always use, and
that is, working together works, and I think that will
certainly apply here.
Let me begin by saying the Department of Agriculture
believes in the importance of barge traffic as a means to
transport agricultural supplies and commodities. Barge
transportation is unrivaled as the least expensive, most
environmentally friendly and the safest mode for moving bulk
commodities to export. The water flow on the Missouri River
contributes to the maintain adequate river levels on the
Mississippi River for the transport of grain and oilseeds from
the Midwest to the Gulf of Mexico.
USDA recognizes the importance of maintaining an efficient
transportation system. Our competitive edge in the global
market depends on our ability to effectively move our product.
This is true more than ever today, particularly as we strive to
compete in markets where many producers benefit from Government
policies that assist their producers in production marketing
and distribution systems much more than our producers due in
the United States.
Indeed, many of our competitors are making significant
investments in their own transportation infrastructure, public
investment that will no doubt improve their ability to move
product into the markets that compete with the United States.
Transportation by water is low cost, environmentally friendly,
and highly effective at moving vast quantities of bulk
commodities to port. The availability of barge traffic helps
keep rail rates competitive. That should be of significant
interest to some of the upper States. By offering a low-cost
alternative for the shippers that use the Missouri River, the
majority of U.S. grain for export which are produced in the
interior States of the Nation are moved by rail and truck to
the major arterial waterways that then feed into the
Mississippi River. The impact of any change in the river
operation on U.S. grain exports and on the ability of barge
traffic to move freely during harvest time will be carefully
considered.
I will conclude by saying that the Department of
Agriculture recognizes, as other Departments before us have
recognized the advantages that inland waterway navigation
offers to U.S. agriculture and the related benefits to rural
economies throughout the Nation. USDA also acknowledges that
competing interests have different perspectives. However, I can
assure you that the administration is considering the impact of
the proposed change in the Missouri River operations on the
agricultural sector as well. Within the executive branch, USDA
will continue to be an advocate for our Nation's agricultural
commerce and the producers, families, rural communities that
both produce and depend on agriculture commerce for their
quality of life and their livelihood.
Mr. Chairman, that concludes my comments, and I am looking
forward to responding to questions.
Senator Dorgan. Mr. Hawks, thank you very much.
Next, we will hear from Margaret Sibley, Director of Policy
at the Bureau of Reclamation.
STATEMENT OF MARGARET SIBLEY, DIRECTOR, OFFICE OF POLICY,
BUREAU OF RECLAMATION, DEPARTMENT OF THE INTERIOR
Ms. Sibley. Thank you, Mr. Chairman.
Reclamation has been involved in the Missouri River Basin
almost since its inception in 1902. At the very beginning, the
projects were typically single purpose irrigation projects
located on headwater and tributary streams of the Missouri
River. Some 40 years later, the Pick-Sloan Missouri Basin
program that was authorized by the Flood Control Act of 1994
and gave the Corps of Engineers to have the responsibility for
navigation and flood control on the main stem of the river.
Reclamation was responsible for the development of the
irrigation hydropower and other uses of the tributaries in the
basin with the exception of the Canyon Ferry Hydroelectric
Power Plant at the headwaters of the river.
The initial power produced by Pick Sloan is used by
irrigation to provide power to be able to pump the water from
its source to irrigation lands, but the 1944 Control Act also
required that the preference be given to certain entities for
marketing power. The power development in the basin has
exceeded the original plan. Changes in energy market demand
resulted in more facilities being built. Irrigation development
on the other hand, has fallen far short of what was originally
envisioned in the act.
The program to date has only about 518,356 acres of
irrigation and 34 dams, not including the Corps' mainstream
dams that was developed in the Pick-Sloan program. Much of the
original acreage was determined not to be suitable for
irrigation, and social and local economic changes dramatically
changed since the 1944 act was passed.
The evolution of the Garrison Diversion Unit of the Pick-
Sloan is somewhat representative the direction water
development has taken in the basin. It has been reformulated
twice, and now is a multipurpose project that emphasizes
municipal, domestic, and industrial water supply. Reclamation
is also an active member in the Missouri River Basin
Interagency Roundtable. This is the consortium of agencies
where communication and cooperation, reducing duplication and
effort, and enhancing the effectiveness of each agency's
resource management capabilities in the Missouri River Basin
take place.
Reclamation has followed the developments of the Corps of
Engineers Missouri River Master Water Control Manual and
associated environmental impact statement. We have reviewed and
commented on various draft documents in order to provide
general technical input and to identify the possible effects of
various alternative plans on the Bureau of Reclamation projects
and its facilities. Our main concerns are to continue meeting
contractual requirements and to fulfill the authorized
irrigation, power, recreational, and Fish and Wildlife
functions of our project.
Thank you very much for the opportunity to comment on
Reclamation's role in this. This concludes my statement, and I
would be happy to answer any questions.
[The prepared statement of Ms. Sibley follows:]S6621
Prepared Statement of Margaret Sibley, Director, Office of Policy,
Bureau of Reclamation, Department of the Interior
My name is Margaret Sibley, I am the Director of the Office
of Policy for the Bureau of Reclamation. I am pleased to
describe the Bureau of Reclamation's activities in the Missouri
River Basin and the relationship to the Corps of Engineers
operations.
Reclamation's involvement in the Missouri River Basin began
soon after the agency's founding under the auspices of the
Reclamation Act of 1902. Investigations were initiated
throughout the basin, and construction of several projects was
soon well underway. Before World War II, projects were
typically single purpose irrigation projects located on
headwater and tributary streams of the Missouri River.
The pace and planned scale of Reclamation's activities
increased considerably with the authorization of the Pick-Sloan
Missouri Basin Program (Pick-Sloan) by the Flood Control Act of
1944. Under the plan, the Army Corps of Engineers was given the
responsibility for navigation and flood control on the main
stem of the river. Reclamation was responsible for the
development of irrigation, hydroelectric power, and other uses
on the tributaries in the Basin. With the exception of the
Canyon Ferry hydroelectric power plant at the headwaters of the
river, which Reclamation built and operates, the main stem
federal dams and power facilities are owned and operated by the
Corps of Engineers.
The initial power produced by Pick-Sloan projects is used
by irrigation projects to provide power to pump water from its
source to the irrigated lands. This is known as project pumping
power or project use power. All power produced in excess of
project use is called ``Preference Power.''
The 1944 Flood Control Act also required that preference be
given to certain entities in marketing the balance of the power
produced by Pick-Sloan facilities. These ``preference power
customers'' include cooperatives, municipalities, public
utility district and state and federal agencies.
Power development in the basin has far exceeded what was
originally planned. Changes in energy market demand resulted in
more facilities being built. In many cases, those facilities
have been expanded or made more efficient, thus increasing
production capacity. All power produced in the Missouri River
Basin by Reclamation and the Corps of Engineers is marketed by
the Western Area Power Administration.
Irrigation development, on the other hand, has fallen far
short of what was originally envisioned in the Act. The early
Pick-Sloan Missouri Basin Program called for over one-hundred
dams to serve irrigation projects. Irrigation was to be
provided to 4.8 million acres of farmland in six states. To
date, only about 518,356 acres of irrigation, and thirty four
dams, not including the Corps' main-stem dams, have been
developed under the Pick-Sloan program. Much of the original
acreage was determined not to be suited for irrigation, and
social and economic conditions changed dramatically in the 58
years since President Roosevelt signed the Flood Control Act.
The evolution of the Garrison Diversion Unit of Pick-Sloan
is somewhat representative of the direction water development
has taken throughout the basin. This project began primarily as
an irrigation project. It has been reformulated twice and now
is a multipurpose project that emphasizes municipal, domestic,
and industrial water supplies. Irrigation water is being
supplied to less than one-hundred thousand acres. While the
municipal and rural water systems have replaced some irrigation
development on the project.
Reclamation has not been involved in funding new irrigation
units of the Pick-Sloan program for many years. The last major
project completed was the North Loup Project in Nebraska. It
was authorized in 1976 and completed in 1990.
Interior is an active member of the Missouri River Basin
Interagency Roundtable (MRBIR). The MRBIR is a consortium of
Federal resource management agencies dedicated to improving
interagency communications and cooperation, reducing
duplication of effort, and enhancing the effectiveness of each
agency's resource management capabilities in the Missouri River
Basin.
Reclamation has followed the developments on the Corps of
Engineers Missouri River Master Water Control Manual and the
associated environmental impact statements. We have reviewed
and commented on various draft documents in order to provide
general technical input, and to identify the possible effects
of various alternative plans on Bureau of Reclamation projects
and facilities. Reclamation serves numerous water users
throughout the Missouri Basin, and our main concerns are to
continue meeting contractual requirements and to fulfill the
authorized irrigation, power, recreation, and fish and wildlife
functions of our projects.
Thank you for the opportunity to comment on Reclamation's
role in water resource management in the Missouri River Basin
Region, and the Bureau's role in the Corps of Engineers ongoing
review of the Missouri River Master Water Control Manual. This
concludes my statement, and I would be happy to answer any
question
Senator Dorgan. Ms. Sibley, thank you very much. I thank
all of your for your testimony, and let me begin by asking a
few questions and then my colleagues will also ask some
questions.
General, let me begin with you. I have a letter here from
Secretary of the Army Thomas White. He is responding to a
letter that I had written to him on September 21. On September
26 he wrote back and among other things he said, the Corps will
release final environmental impact statement FEIS with a
preferred alternative in May 2002 as currently scheduled.
Then I have a letter of February 15, 2002, from Robert
Flowers, Lieutenant General, Corps of Engineers. He says, Dear
Senator Dorgan, this responds to your correspondence dated
January 9, and he once again says that we will continue the
master manual revisions so as to develop a final EIS by May
2002 and a record of decision by October 2002.
What has happened that caused the Corps to miss September
26 of last year, February 15 of this year? Since those dates,
the Secretary of the Army and the head of the Corps of
Engineers have both put in writing that they will meet the May
date of this year. Obviously they did not meet that date. What
happened in that intervening period?
General Fastabend. Mr. Chairman, at the time of those
letters it was our intent to meet those dates, and in part I
would offer to you that we have met them. In May, the Corps of
Engineers did finish its assessment of the 55,000 comments we
received on the Revised Draft Environmental Impact Statement,
and the Corps identified a preferred alternative that it did
pass over to Fish and Wildlife Service. This preferred
alternative was the starting point for our informal
consultations to resolve the issue and advance the process.
Senator Dorgan. What was that preferred alternative?
General Fastabend. The preferred alternative is a
description of how the Corps of Engineers would revise the
master manual in order to----
Senator Dorgan. I understand that. I am asking what the
preferred alternative was. What had you chosen to send as your
preferred alternative?
General Fastabend. Mr. Chairman, what I was about to tell
you is that in the process of delivering that preferred
alternative we decided that it would be best to keep that
informal consultation as an interagency process because of the
controversy that is so obvious to everyone in this room with
all decisions associated with the Master Manual. We believe
that we could resolve our discussions best if we kept that as
an interagency process, so we have not announced publicly the
details of the Corps' preferred alternative back to the
Service.
Senator Dorgan. But General, both Secretary White and
General Flowers knew when they wrote these letters that this
was controversial, so it is not a revelation that this is a
controversial issue. My concern has been that the Corps of
Engineers developed a preferred alternative and then pulled
that alternative for reasons other than good public policy.
You were scheduled to meet with me on May 22. Your office
called and requested a meeting with me, and we were set to meet
at 11 a.m. on May 22. My office schedule showed that you were
apparently going to brief me on the Missouri River preferred
alternative announcement, which was to have occurred the next
day or several days thereafter. The day before that meeting, we
were called and it was cancelled. Can you tell me what you were
prepared to tell me at the meeting on May 22. Would you
disclose that at this hearing?
General Fastabend. Mr. Chairman, up until the call where I
cancelled my intent had been to meet with you and give you a
preview on what the details of the preferred alternative would
be. At that time, the Fish and Wildlife Service and the Corps
of Engineers jointly agreed that we should make this a
nonpublic interagency informal consultation process, and
therefore I regretfully had to call and cancel that process of
showing the public what that recommendation was.
Senator Dorgan. General, I am not suggesting bad faith on
your part. I am saying that the Secretary of the Army, General
Flowers, and you had a preferred alternative and were prepared
to come to my office, among others, I assume, and tell us what
that was.
We heard testimony earlier today that the President went to
Missouri and made a commitment about these issues and, frankly,
I am a little concerned about what is happening here. Why a
preferred alternative was identified but cannot be made public.
Will you make it public today? Will you tell me at this hearing
what you were prepared to tell me at the May 22 meeting?
General Fastabend. Mr. Chairman, I would ask your
indulgence. I would not like to make it public today. The Corps
of Engineers and the Army, which answered your letters, did
have their intent to do that. However, the Corps of Engineers,
of course, is not the entire administration. We have to consult
with the Fish and Wildlife Service so that we develop a good
understanding of any differences we have on the details of the
recommendation so that the administration can have a
consolidated position.
Senator Dorgan. General, I know this puts you in a tough
position, but you saw what I described at the front of this
hearing, 12 years. We talk about indulgence and patience. I am
out of patience, so I guess I am asking you, and I understand
why you do not want to tell us, but I am asking you as we are--
policymakers. We fund your agency. I have a letter from the
Secretary and a letter from General Flowers, the head of the
Corps, and they have said we will meet the date in May. You
apparently had a preferred alternative in May, were prepared to
come and tell me about it, and then decided that you want to
keep it private.
I am saying I do not think that is appropriate. I think you
ought to make it public, and I think you ought to do so today.
I think you should tell this committee what the preferred
alternative was. If it is not ultimately the preferred
alternative that comes out of some internal discussions, I
understand that, because there is apparently some other
political commitment out here that we are also dealing with,
which I hope to understand a bit more about, but at least for
purposes of the Corps--and I have a great deal of respect for
the Corps.
The Corps helped us fight the Red River flood. I have spent
a lot of time talking to the Corps about how important they are
in our lives, so this is not in any way disrespectful of you or
the Corps. I respect your organization, but with these
assurances of a preferred alternative, given myself, as the
chairman of this subcommittee, and my colleagues, I do not
think after 12 years you ought to tell us that you need our
indulgence.
I think you should tell us what the preferred alternative
was. Then at least we have a reference point here of what kind
of internal private secret discussions are going on--let me
amend that and take secret away--what kind private discussions
are going on between the Corps, the Service, and others.
General Fastabend. Mr. Chairman, I am a soldier, I am in
the Army. The country has always appreciated our habit of
following instructions, and my instructions are to keep this as
an interagency discussion.
Senator Dorgan. And General, who are those instructions
from?
General Fastabend. My instructions are from my higher
headquarters, Headquarters U.S. Army Corps of Engineers.
Senator Dorgan. Is it Secretary White, or General Flowers.
General Fastabend. Sir, I do not talk to Secretary White. I
talk to General Flowers.
Senator Dorgan. And General Flowers has instructed you not
to tell us what the preferred alternative was?
General Fastabend. Yes, sir.
Senator Dorgan. We invited General Flowers here, and I
will, as a result of that, invite him once again, and we will
have a separate session with General Flowers. I know General
Flowers well. I think it is a mistake for him to withhold from
policymakers here that which apparently is being discussed
internally and outside of public view. After 12 years of trying
to find a way to better manage his river, I think it is better
to have in public view these kinds of discussions rather than
keep them from public view, but again, my questioning has meant
no disrespect to you, General.
General and Mr. Smith, let me ask both of you what kind of
communications exist between you and the Council on
Environmental Quality? Mr. Smith, can you tell me what kind of
discussions have existed?
Mr. Smith. I personally have not been involved in any
discussions with CEQ. I know that they have been playing a
coordinating role in this, just in terms of making sure that
the different agencies of the Federal family are communicating
effectively.
Senator Dorgan. General, are you familiar with the
activities of the Council on Environmental Quality over at the
White House, and what role, if any, they have had in these
discussions?
General Fastabend. Mr. Chairman, I share Mr. Smith's
understanding that CEQ has a coordinating role, but I did not
deal directly with CEQ.
Senator Dorgan. The reason I am asking that question is, I
assume if there is some sort of commitment that was made in the
last campaign with respect to these issues, that the CEQ would
be the conduit through which that commitment comes to other
agencies in the administration. I would also want to understand
what is going on there. I must say, we asked the head of the
CEQ to be here this morning, and the CEQ said he was
unavailable and they refused to send someone else, so I will
also see if we cannot find a proper time when we could visit
with those policymakers.
My interest here is simple. My interest is in finding a way
that this river is managed for the benefit of all of the people
and all of the interests on that river, the wildlife interests,
the ecological interests, the interest of farmers, the interest
of people involved in recreation and boating.
I do not have the time, Mr. Hawks, but perhaps we can find
a little time here in a moment, but I think there is great
disagreement about the suggestions you make on transportation
costs, especially railroad costs. I doubt whether anybody on
the southern reaches of the Missouri River would tell you that
rail rates are fair. They certainly will not tell you that on
the northern reaches, but there are studies that take issue
with that, and the methodology especially by which some are
claiming that the availability of barge traffic tends to keep
rail rates down.
In fact, as I understand it, what is happening is, the
barge traffic is moving grain down so that it can bring
fertilizer back. It is a back-haul for fertilizer coming north,
and fertilizer coming north is probably an appropriate metaphor
for the difficulties we are faced with 12 years here. What we
would like is good policy heading north that says to people on
the northern reaches of this river in the upstream States that
we are going to manage this in a manner that is fair to you. It
is fundamentally unfair at the present time, and I very much
want the Corps to proceed to meet the commitments that the
Secretary of the Army and the head of the Corps have made to
us.
Well, I have taken more of my time--let me ask Senator
Hagel to inquire.
Senator Hagel. Mr. Chairman, thank you, and to each of you,
thank you for coming before our committee this morning.
General, let me ask you the general question, how do you
factor in the interests of all the different dynamics that you
heard this morning and you are well aware of to get to a
decision like the decision the Corps made last week? Do you
think about power production? Do you think about flooding
agriculture, transportation, or do you think about birds, or
how do you do this?
General Fastabend. Senator Hagel, thank you for that
question. There are basically three things I have to do when I
deal with these issues. First of all I have to balance the
multiple economic purposes for which the projects were built. I
have to simultaneously comply with all environmental law, and I
must simultaneously meet our trust and treaty obligations to
federally recognized tribes.
Some people think at times that we are balancing the ESA
against economic purposes. We do not do that. We may balance
economic purposes against each other, but we do that and
simultaneously meet environmental law and our trust and treaty
obligations to federally recognized tribes.
So in this process what I have done is, I have very
carefully immersed myself in all the input related to this
issue, and I work very hard to maintain the multiple purposes
for which the projects were authorized and built. As I said in
my opening statement, we get instructions from the American
people. Our last instructions were, operate these projects for
these multiple purposes, so I will work very hard in all cases
to maintain all purposes. Only when I get to the complete
elimination of all possible constraints, or all possible
latitude to maintain a purpose, will I regretfully let that
purpose go. That is the problem I have been having on
navigation in recent days, because I have not had the latitude
to raise releases out of Gavins Point.
Senator Hagel. Well, thank you. Let me dig a little deeper
into this. Then how do you weigh the differences and the
interests or priorities between the charge the Corps has on
management issues on the river concerning flooding, navigation,
versus the Endangered Species Act? Do you give each a few
points and then you total them, or how does that work?
You have explained that you have three criteria that you
have to deal with, and I agree that the Congress has placed the
Corps, and we do year after year, in a situation where you are
constantly ricocheting from policy decision to policy decision
trying to weigh all the mandates that we push down on you. I
understand that. I think most of us do.
But where I want to go then is, I understand what you have
just said. Then how is the Endangered Species Act compliance
more important than your other responsibilities of river
management?
General Fastabend. Senator, when you look at the economic
purposes, my understanding is you do not see a clear priority
and legislation documented anywhere with respect to any
particular one economic purpose. Obviously, any threat to life
is very important to us, and so flood control issues
immediately come to mind. If someone had a gun to my head and
said, which one is most important, any kind of threat to human
life is a big problem.
Senator Hagel. So you would rank human interests over bird
interests?
General Fastabend. I would rank risk to human life over
bird interests, yes, sir, I would, but we have not gotten to
the point where we have had to compare risks to human life to
compliance with environmental law.
Senator Hagel. Well, what was the decision about last week,
then?
General Fastabend. Last week, of course, we were in a
tremendous drought situation. Tributary input is
extraordinarily low. At Lake Oahe, for instance, their input is
17 percent of what was expected, and so from the beginning of
the annual operating plan this year we dialed back navigation
from full service to intermediate service initially 1 May, and
then down to minimum service on 1 July. In order to accommodate
the drought situation, we made a decision which we are allowed
to make under the current water control manual to do what we
call flow to target. Flow to target means we try to meet the
navigation targets as assigned for minimum service at the
various control points on the river.
The alternative method is called flat release. If we had
gone to flat release, we would have made a judgment of how much
tributary drying we would have gotten over the summer and we
would have made a guess, added the drying effect, and gone with
a flat release that was relatively higher in the late spring.
We went to flow to target because that saves water. It saves
about a million and a half acre feet in the upstream States. It
helps ameliorate the impacts of drought on the upstream States.
It means about a foot and a half elevation in those reservoirs.
The problem with flow to target is that sometimes you dial
the river back, sometimes you dial it back up. Because of the
extraordinary drying effect and the reduced input from the
tributaries below Gavins Point Dam we needed to bring the river
back up, and we found out when we started to move nests and
eggs that our understanding of the incidental take statement in
the current biological opinion was not the same as what the
Fish and Wildlife Service had. Therefore we were not able to
move those nests, not able to bring the water back up. This is
not an issue of a threat to human life. It is an issue of
maintaining the navigation purpose for which the project was
authorized.
I am at minimum service and dropping now because I cannot
bring the water back up. I have absolutely no other option. I
have initiated releases out of the Kansas Reservoir System, but
under the water control manual that increase is limited to
3,500 CFS. I am at that. That will only last a couple of weeks,
and so I have exhausted every option. The only way to continue
to meet the navigation purpose would be to violate the
Endangered Species Act, and I do not intend to do that.
Senator Hagel. So as you have just taken us through the
process, the consequences for a decision like this staying in
place, and there will be consequences. Maybe not flooding
today, to your point, because we are experiencing a drought,
but the consequences that will follow on here, economic
consequences, power generation, municipality consequences and
all the rest, if this decision holds, surely you would think
about that as well, or maybe you cannot. Is that what you are
telling me, that you are so locked into an interpretation of
the law that the consequences be damned, or what is it?
General Fastabend. Senator, I do think of the consequences.
For instance, I would tell you if I had a barge that was in a
reach of the river that would be grounded immediately, and it
had a hazardous material on it, I would be thinking very
seriously about making a different decision, but I do not have
that situation right now.@
Senator Hagel. Let me ask you this, because I know my time
is about out, and I thank you, Mr. Chairman, where do we go
from here?
General Fastabend. Senator Hagel, I would suggest we have
to continue to advance the process, allow the Fish and Wildlife
Service to pursue their consultation, to come up with a
consolidated position and move it forward. The sooner we can
move the process forward----
Senator Hagel. What does that mean?
General Fastabend. We need to get to the step of producing
a final environmental impact statement, allowing a 30-day
comment period on that. Based on that comment, I need to sign a
record of decision, and we need to update the water control
manual.
Senator Hagel. Well, I know my time is up. I would just,
until we come back around, if we have another round, strongly
suggest that you get the General to go see the chairman. It
might be in everyone's best interest to get that done.
Thank you, Mr. Chairman.
Senator Dorgan. Following on that question, if I might,
before I call on Senator Johnson, I think Senator Hagel was
trying to sense, is there a time frame here? Is there a target
date? I mentioned the May target date. Now you are involved in
private discussions internally. Is there an end date for those
discussions? Is there a target date?
General Fastabend. In our informal discussions with the
Fish and Wildlife Service we are shooting at a goal of trying
to conclude our informal consultation the end of July. That may
be difficult to meet. This recent event on the Missouri River
last week takes a lot of the attention of the same people that
are trying to do the informal consultation, so we are already
beginning to wonder if we can make our internal goal of
completing the informal consultation by 31 July.
Mr. Chairman, there are differences of opinion between
good, honest, hardworking professionals on each side that are
trying to do their job. It might turn out that the results of
the informal consultation will be a decision that we have to go
to formal consultation under the Endangered Species Act. That
could change our time line. However, we are still working as
hard as we can to get the Final Environmental Impact Statement
out and to meet our goal of doing the record of decision in
October 2002. That is what we are trying to do.
Senator Dorgan. Well, General, we have differences of
opinion here in the Senate every single day, and we just have a
debate and then we make a decision. I mean, that is just--you
just make decisions, and my great angst here is that 12 years
goes by, still no decision, and more concern now about a
decision that may not come for some while.
Senator Johnson.
Senator Johnson. Well, thank you, Chairman Dorgan. Thank
you to all the members of this panel. I think it has been very
helpful. Welcome, General Fastabend. As the father of a son who
served in Bosnia with the U.S. Army I concur that your
background there, particularly the combat aspect, may serve you
well in your current role.
General, may I first ask you your assurance that you and
the Corps will work in a very conscientious manner with our
Indian tribes along with the rest of the entities that you have
to deal with on the management of the Missouri River? As you
know, the Lower Brule and Crow Creek tribes in my State of
South Dakota have filed suit over Lake Sharpe's operations, and
it is important that we recognize the Government's unique
relationships that we have with our tribes and the particular
concerns that they have relative to the management of the
Missouri River.
General Fastabend. Senator Johnson, you have that
assurance. We will continue to work hard with the tribes,
recognize our obligation to and our consultation with them, and
deal with them on a Government-to-Government basis.
Senator Johnson. General, it is my understanding that you
have had some 55,000 public comments so far relative to the
management of the Missouri River. Is there any way that you
could characterize the direction of those comments, whether
they support the status quo, they support a preferred
alternative incorporating a return to natural river flows, or
any other characterization that you could give to those
comments?
General Fastabend. Senator, I can give you an idea of the
flavor of how you sort through 55,000 comments. I can tell you
45,000 were identical e-mails, the same message launched
through the power of automation, so that gets you down to
10,000 and your life is feeling a little bit better right away.
Senator Dorgan. Can you describe those 45,000 identical
messages?
General Fastabend. Those 45,000 identical messages were in
support of a spring rise and lower summer flows, so you have
that input. The rest of the input generally reflected the wide,
divergent range of interests on the river as you have heard in
the testimony here this morning.
Senator Johnson. Well, General, I think you can understand
the concern that some of us would have that the Corps was on
the verge of disclosing its preferred alternative, then with
the Bush announcements on June 14 that it would indefinitely
postpone the Final Environmental Impact Statement, that there
is the appearance of political intervention versus the need for
additional scientific analysis on this issue, and the
frustration that many would have and the perception that an
issue which ought to involve less politics and more science and
more economics has in fact been hijacked by political concerns.
Is there anything you can share with us that would lead us
not to believe that this is simply a political intervention and
not a need for any further scientific and economic analysis.
General Fastabend. Senator Johnson, I can tell you the
nature of the informal consultations we are having. They are
not political consultations. They are not additional studies. I
mean, there is generally broad agreement on the nature of the
science and the economic analysis associated with these
decisions. The devil is always in the details, and people have
a different perspective on how to interpret the available
science, they have different perspectives on how to apply that
available science, and we have people that have invested a
decade of their lives in trying to resolve this issue, and as
you can imagine, they feel strongly about it.
Both my counterpart in the Fish and Wildlife Service and I
are telling our staffs, get past the emotion and drive to
facts, just work to facts, and that is what we are doing. We
are methodically understanding each other's differences of
interpretation, and we are working very hard to resolve that.
From my perspective it is all about understanding where people
are coming from and why they interpret things the way they do,
and sharing information, and working our best in a
collaborative way to come up with a position that best serves
the needs of the basin and the species.
Senator Johnson. Well, we want good analysis, we certainly
want thorough consultation, but I share with Senator Dorgan the
thought that at some point we need an end point where a
decision has simply got to be made, and this cannot continue to
be stretched out in some sort of infinite pattern.
Chairman Dorgan, I am going to have to excuse myself. I
regret that, because we have an excellent next panel that is
going to be here, including Mr. Doug Hofer from the South
Dakota Department of Game, Fish, and Parks. There are a number
of questions that I would like to ask of that particular panel,
and I would request your indulgence and permission to submit
those questions to that panel and to Mr. Hofer for their
response.
Senator Dorgan. Without objection, we will include them.
Senator Johnson. I yield back my time.
Senator Dorgan. Senator Johnson, thank you very much. let
me just ask a couple of additional questions, and then we will
get to the next panel.
General Fastabend, if the informal consultations do not
provide some kind of closure, and you must go to formal
negotiations, can you restate for me what that means in terms
of time?
General Fastabend. Senator Dorgan, the nature of informal
consultations, of course, is that under the Endangered Species
Act there is not a rigorous time line. My understanding is when
we go to formal consultation under the Endangered Species Act,
Section 7 does apply a time line which is typically 135 days;
90 days to get a response and then 45 days to write it up, so
if we go to formal consultation, at the point that we do, we
would look for a 135-day time limit.
The other thing I can tell you, Senator, with respect to
time, is that under the current Incidental Take Statement of
the Fish and Wildlife Service's biological opinion, I have an
obligation to make changes on the system in 2003. I am very
conscious of this obligation, and so I am very highly motivated
to maintain my coverage under the Endangered Species Act and
meet this time line.
Senator Dorgan. Mr. Smith, can you tell me, what does the
biological opinion say with respect to timing? Anything other
than the 2003 date that the General just described, or is that
the sole timing issue?
Mr. Smith. That is the sole timing issue at this time.
Senator Dorgan. Mr. Smith, I understand you have some
technical people with you. Are you or your technical people
aware of any recommendation that has been made by the Corps of
Engineers with respect to a preferred alternative?
Mr. Smith. The Corps of Engineers has come to us with some
ideas and asked for us to engage in informal consultation with
them. We are currently working through that process, look at
all of the available conservation measures that are in order to
assist the Corps in coming up with a final preferred
alternative so that we can then proceed with formal
consultation in an expedited manner.
Senator Dorgan. Let me ask you or your technical person if
the Corps had proposed to you a 5-year plan during which there
was no spring rise, and some sort of studying during that
period, would that comply with the Endangered Species Act in
your judgment?
Mr. Smith. Well, I think what we would have to do is to
take a look at the entire regime in which the Corps is
proposing to operate the system and all available conservation
measures that they would build into that model before we can
make an assessment on whether or not that the action will
result in jeopardy to listed species.
Senator Dorgan. Well, last year during the consideration on
the Energy and Water Appropriations Act, we put a provision in
the act that allows consideration of alternatives for achieving
species recovery other than the alternatives listed in the
biological opinion. Are those alternatives being considered
and, if so, what are they?
Mr. Smith. We are currently considering all available
possibilities and all possible conservation tools. We are not
ruling out anything at this time. Some of them would include
manual manipulation of habitats and off-channel spawning areas.
There is quite a lengthy list that we would be more than
happy to provide your office.
Senator Dorgan. All right. General Fastabend, one last time
if I might, with respect to the period towards the end of May,
when we expected to hear a preferred alternative from the
Corps. You will not tell me the preferred alternative, so I
will have to try to get General Flowers here if we can. Can you
describe to me at least the circumstances under which it was
determined that no such preferred alternative would be
announced to Congress? Was there a big red light that went on,
or was there a door that shut somewhere, was there a telephone
call made? If so, what was the origin of that?
General Fastabend. The Fish and Wildlife Service and the
Corps of Engineers at the senior levels made the decision that
the process would best be served if it was a nonpublic
interagency process.
Senator Dorgan. All right, and that would be General
Flowers and perhaps Secretary White in your shop?
General Fastabend. From my perspective, I am sitting here
sweating bullets because I have told you General Flowers. In
fact, it is his Deputy that represents him. General Griffin is
my typical point of contact on this issue, but of course he
represents General Flowers for many things that General Flowers
is responsible for. In my primary dealings, I get my
instructions through General Griffin.
Senator Dorgan. We will assume it is General Flowers unless
you call me back and tell me otherwise. Knowing General
Flowers, my expectation is, this decision would not be made
without his active involvement.
Mr. Smith, who at the head of your agency would have been
involved in making these decisions?
Mr. Smith. I am not sure if we were involved in making any
decisions at all.
Senator Dorgan. Well, the General just said the folks at
the head of your agency were.
Mr. Smith. I understand what the General said, but the
people who would have been involved would be Steve Williams,
Director of the U.S. Fish and Wildlife Service, and Judge Craig
Manson, the Assistant Secretary for Fish and Wildlife and
Parks.
Senator Dorgan. I will send you a question on this. Would
you inquire inside your agencies so that I can understand what
happened at that moment? Who was engaged in deciding, we are
going to put the brakes on? I need to understand that so I can
understand the process here. Who has control of the stop and go
buttons, and what the motives are to push certain buttons?
All right, let me thank all of you for being here and
testifying. Mr. Hawks, let me send you some written questions,
if I might, on the transportation issues, and General
Fastabend, let me again say I mean no disrespect, I appreciate
your service to our country, but I do mean to be pushy with
respect to the Corps of Engineers. I have no more patience on
this issue.
This issue should have been resolved a number of years ago,
and it is not, and it now appears to me to be an illusive
finish line once again, and I am not just speaking on my
behalf. I am speaking on behalf of thousands and thousands and
thousands of people, and endangered species, and on behalf of
sound public policy and good science. And as I said when I
started, I worry that there is circling this issue a barrelful
of politics and a thimbleful of policy. I hope that is not the
case, but I worry that that has been the case, especially in
recent months.
As Senator Johnson said, I think we ought to just plow
ahead here and make decisions on sound science and good
economic policy, and there need not be any, or at least much
additional study. This has been studied to death. If there is
anything in my public career that I have seen studied,
restudied, and studied once again, it is this issue, and I
think it needs very little more study. What it needs is some
action.
But again, let me say thank you for preparing testimony and
presenting it to us, and I expect that we will have additional
encounters on this very interesting subject. Thank you very
much.
As they depart, let me call the next witnesses to the
table. The next panel will include four witnesses, Dale Frink,
State Engineer, North Dakota State Water Commission, Bismarck,
North Dakota, Doug Hofer, director, Division of Parks and
Recreation, South Dakota Department of Game, Fish, and Parks,
Pierre, South Dakota, Michael Wells, chief of water resources,
Missouri Department of Natural Resources, Jefferson City,
Missouri, and Tex Hall, chairman of Three Affiliated Tribes,
Fort Berthold Indian Reservation, New Town, North Dakota.
Let me ask that we have people take their seats and ask the
witnesses to please come forward. While the witnesses are being
seated I am going to include in the record without objection
testimony by Richard Opper--we will include their titles--
Dennis Hill, Chad Smith, and the Standing Rock Sioux Tribe.
Let me thank this panel for being with us today, and let me
also ask consent that we include in the record a statement by
Jonathan Bry and also Jill Denny-Gackle, and we will include
the organizations for which those statements apply.*
---------------------------------------------------------------------------
* Statements can be found in the appendix.
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Senator Dorgan. Mr. Frink, why don't we begin with you. Why
don't you proceed. Your entire statement will be made a part of
the record, and you may summarize.
STATEMENT OF DALE L. FRINK, NORTH DAKOTA STATE ENGINEER, AND
CHIEF ENGINEER-SECRETARY TO THE NORTH DAKOTA STATE WATER
COMMISSION
Mr. Frink. Thank you, Mr. Chairman.
Mr. Chairman and members of the subcommittee, my name is
Dale Frank, North Dakota State Engineer. Thank you for the
opportunity to testify on this very important issue. Today, I
present the same strong, clear, and consistent message that
North Dakota and other Missouri River Basin States have been
voicing for years. The Missouri River master manual must be
changed to meet the contemporary needs of the basin. The time
of change is long overdue.
The Flood Control Act of 1944 envisioned many benefits, and
for the most part the Missouri River dams have fulfilled these
expectations, but things change in 60 years, and a more
detailed look at today's uses is very revealing. Flood control,
power generation and water supply certainly have all lived up
to their original expectations. In fact, all have significantly
exceeded the original estimates, providing hundreds of millions
of dollars of benefits.
On the other extreme, upper basin irrigation development
and downstream Missouri River navigation have not even come
close to realizing their expectations. In North Dakota, we were
promised over 1 million acres of irrigation for our 500,000
acre contribution of prime river bottomland for the Garrison
and Oahe reservoirs. Unfortunately, the dams flooded out more
acres than were actually under irrigation in 1944 than the
State has received back from the Pick-Sloan plan. Likewise,
downstream navigation was expected to move 20 million tons of
goods annually. That projection has proven unrealistic, with
current levels of navigation being a paltry 1.5 million tons of
goods annually.
Recreation, on the other hand, has far exceeded 1944
estimates. Today, recreation is big business along all reaches
of the Missouri River. In North Dakota, Lake Sakakawea and Lake
Oahe provide major recreation opportunities to tens of
thousands of residents and visitors to the State. The Corps
estimates that the national economic benefits from recreation
add $84.7 million annually, compared to $6.9 million for
navigation. The current master manual was developed largely in-
house by the Corps of Engineers in the 1960's. It predates the
passage of NEPA, the Threatened and Endangered Species Act, the
Clean Water Act, and many other Federal laws passed to protect
the environment. The master manual for the Missouri River must
reflect these changes.
We are very pleased that the Corps of Engineers is
considering five alternatives to the current master manual. All
five alternatives conserve water in the main stem reservoirs
during times of drought, a recurring plague in the Northern
Plains. Conserving water in the reservoirs during dry periods
improves conditions for fish survival and recreation. It also
translates into more hydropower production.
If any of these alternatives would have been in place
during the droughts of the 1980's, Lake Sakakawea would have
been 4 to 6 feet higher than under the current plan. This would
translate into far better fish habitat, more efficient
hydropower generation, and an overall improvement in the
economy of the areas that border the Missouri River System.
The nine members of the Missouri River Basin Association
have worked very hard to reach agreement on changes to the
master manual. In November 1999, seven of the eight member
States agreed to support a revised plan that included drought
conservation measures for the main stem reservoirs, increased
monitoring, and the formation of a recovery committee to
facilitate the concept of adaptive management of the river
system. This plan is very similar to the Corps' modified
conservation plan.
In February 2000, MRBA agreed to expand its 1999
recommendations in view of the U.S. Fish and Wildlife Service's
biological opinion that spring releases from Gavins Point Dam
be increased to help recover certain threatened and endangered
species. Six of the eight States agreed to support this
recommendation. The MRBA recommendation is rather complex, and
is more completely described in Richard Opper's testimony that
has been provided.
I am extremely disappointed that the Corps has chosen not
to identify a preferred alternative. The lack of a preferred
alternative further confuses public comment on a subject that
is inherently complicated. I strongly disagree with the Corps'
go-slow approach, especially since all of the alternatives will
greatly improve conditions to the master manual.
Though the Missouri River and the operations of the dams
are critical to the future of North Dakota, we realize all
States in the basin depend on the river. Clearly, any changes
in the master manual must support adequate water supplies for
all cities and industries along the river. This need was
carefully evaluated by MRBA members before agreeing to support
their ultimate recommendation.
We and most of our neighbors also agree that the upstream
and downstream interests must equitably share the pain during
the periods of drought. I urge the Corps of Engineers to adhere
to its current schedule for completing the master manual
revision process. The time for equitable distribution of
benefits of the Missouri River operations and equitable sharing
of water shortages is now.
There is no question that any of the five proposed
alternatives is a significant improvement over the current
master manual. The results of the many economic, hydrologic,
and environmental studies and restudies clearly illustrate the
Missouri River System can be better managed to benefit us, our
children, and the entire Missouri. As a final thought, the five
main steam dams authorized by the 1944 Flood Control Act were
constructed in 18 years. If the master manual is revised in
2003, it will have taken 14 years. 14 years is long enough and
further delays are not acceptable. The time has come to meet
the contemporary water needs of the entire basin.
Thank you.
Senator Dorgan. Mr. Frink, thank you very much. Let me next
call on Mr. Michael Wells, chief of water resources, Missouri
Department of Natural Resources.
Mr. Wells, thank you. You may proceed.
STATEMENT OF MIKE WELLS, CHIEF OF WATER RESOURCES, STATE OF
MISSOURI
Mr. Wells. Good morning, Mr. Chairman. My name is Michael
Wells. I am chief of water resources for the State of Missouri.
I want to thank Senator Dorgan for inviting me to give
testimony on this very important issue. I also would like to
thank Senator Carnahan for making a request to Senator Dorgan
that a representative from the Missouri Department of Natural
Resources be allowed to testify on this critical matter.
Because the Missouri River is such a vital resource to the
State of Missouri, all members of the Missouri congressional
delegation and Governor Bob Hilden, representing more than 5.6
million people, speak with one voice to ensure that changes in
Missouri River management will not harm the citizens of our
State.
In Missouri, the Missouri River means drinking water for
over half of our citizens, cooling water for our utilities,
water to support navigation, unique recreational opportunities,
and a valuable fish and wildlife habitat. The State of Missouri
strongly opposes any changes in the management of the Missouri
River that would be adverse to any of these uses.
We, too, are concerned that decisions regarding the future
management of the Missouri River have not yet been made.
Uncertainty and conflict have made long-term planning
investments for Missouri River communities a tenuous task at
best. However, since decisions on the future management of the
Missouri River will have a profound and lasting impact on our
Nation's welfare, we must ensure that the best plan possible be
made.
As painful as delays can be, the State of Missouri does not
support a premature decision that is made to meet arbitrary
deadlines or political agendas. Reliable flows from the
Missouri River are not only economically and environmentally
important for the Missouri River, but for the Mississippi River
as well. In times of drought, the Missouri River provides as
much as two-thirds of the flow of the Mississippi River at St.
Louis. This stretch of river between St. Louis and Cairo,
Illinois, is often referred to as a bottleneck reach. Located
between the locks and dams on the Upper Mississippi River and
the Ohio River, low water in this reach can created a large
bottleneck in the movement of bulk commodities, impacting the
entire inland waterway system.
Because any decision to change the management of the
Missouri River has far-reaching impacts, it is imperative that
the impacts for the Mississippi River be fully analyzed, the
information made available to the public prior to review prior
to making any decision on a preferred alternative. A poor
decision could have devastating impacts to our Nation's inland
waterway system. That is why eight Missouri River Governors
have joined Governor Bob Holden on more than one occasion to
ask President Bush to ensure that the U.S. Army Corps of
Engineers fully analyze all impacts on the Mississippi River.
Because several key studies have not been finalized on the
Mississippi River, a decision on a preferred alternative at
this time is premature. These letters are included in my
testimony for the record.*
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* The letters have been retained in subcommittee files.
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In addition to the request made by the nine Mississippi
River Governors, 16 mayors and county executives along the
Missouri and Mississippi River have requested that President
Bush withdraw all the new plans proposed for the Corps of
Engineers because of unacceptable impacts to the Missouri and
Mississippi River communities. The State of Missouri continues
to oppose drastic flow changes below Gavins Point Dam that
would increase flooding or provide less useable water to the
downstream States.
The flow alterations recommended by the U.S. Fish and
Wildlife Service's biological opinion are much too
prescriptive, and do not give the Corps the latitude to develop
management plans that continue the recovery of the ecosystem
while not harming other uses of the river. Because the Fish and
Wildlife Service recommendations have such far-reaching
impacts, a high level comprehensive review of their work should
be completed prior to selecting a new plan.
There also is a great concern from downstream users that
measures proposed by the Corps for drought conservation are so
extreme that flow support for downstream uses will be
devastating to both economic and environmental interests. We
are encouraged that efforts by the Corps and other agencies in
recent years have improved the Missouri River's ecosystem.
Under the current master manual there have been significant
increases in the number of interior least tern and piping
plover. We have also seen progress and recovery efforts for the
pallid sturgeon. This progress and recovery of these endangered
or threatened species has been accomplished without changes in
downstream flows.
We applaud the Congress for authorizing additional lands
for the Missouri River mitigation project. Efforts such as
these will continue to pay dividends in the recovery of the
Missouri River ecosystem.
In closing, decisions should not be made until all studies
have been completed and the public has had an opportunity to
review them. The State of Missouri strongly opposes any
increase in storage in the Missouri River System that benefits
upstream interests at the expense of downstream water needs.
The State of Missouri is committed to working with the U.S.
Army Corps of Engineers, the U.S. Fish and Wildlife Service,
and all other interested parties to find a workable plan for
the Missouri River that both enhances the environment and
ensures the resource remains a river of many uses.
I want to again thank you, Senator Dorgan and the committee
for this opportunity to express the State of Missouri's
position on this important issues, and look forward to any
questions.
Senator Dorgan. Mr. Wells, thank you very much. Next, we
will hear from Director Douglas Hofer, director of the Division
of Parks and Recreation, South Dakota Department of Game, Fish
and Parks.
Mr. Hofer, you may proceed.
STATEMENT OF DOUGLAS HOFER, DIRECTOR, DIVISION OF PARKS AND
RECREATION, SOUTH DAKOTA DEPARTMENT OF GAME, FISH AND PARKS
Mr. Hofer. Thank you, Senator Dorgan, and I also want to
thank Senator Johnson for inviting me to appear before the
committee today. I am the director of the Division of Parks and
Recreation, and as part of that system of State parks that we
manage in South Dakota we have 68 areas on the Missouri River
on four different reservoirs that are part of the Pick-Sloan
project. This hearing is extremely timely for those of us
living in South Dakota, where we find ourselves in the grip of
a prolonged drought. The need for a revised Missouri River
master manual has never been more critical in the Upper Basin,
and a contemporary approach to managing this river is long
overdue.
Fishing, boating, camping, and other water-related
recreation on the Missouri River are very important to us in
South Dakota. Last year, 3 million visits were made to the
Missouri River recreation and lakeside use areas managed by our
State of South Dakota. This included 70,000 overnight camping
units, over 500,000 angler days of fishing. These angler days
are worth more than $40 million to South Dakota's economy and
create hundreds of jobs.
Interestingly, while the dams and reservoirs bought many
benefits to the downstream States, navigation on the lower
Missouri has never developed to its original expectation, and
while no one even mentioned recreation as one of the project
benefits back in 1944, it has exploded as a viable industry on
the main stem reservoirs.
The current master manual does not adequately address the
conflict between navigation and recreation. Water releases for
navigation continue to receive the highest priority in water
management at a time when the Upper Basin is in the middle of a
drought. Let me relate this directly to the situation that we
are facing in South Dakota, and two crises that we have already
had to deal with this year.
Our once nationally recognized trophy walleye fishery was
supported primarily by a prey source of rainbow smelt. Anglers
came from all over the United States to Lake Oahe to catch
walleyes. In 1996, there were 2 million hours of fishing just
on Lake Oahe alone, estimated to be worth $20 million to our
economy. In 1997, one-half billion adult smelt were flushed
downstream due to high water releases through Oahe powerhouse
later in the summer after the threat of flooding downstream had
passed, exacerbating the crash of Lake Oahe's crayfish
populations.
We at the Department of Game, Fish and Parks have worked
hard in turning this situation around by trying to get anglers
to return to Oahe in hopes of reducing predator abundance and
bringing our reservoirs back into balance. Incentives have
helped increase fishing pressure and predator harvest twofold
from 2000 to 2001. Predator abundance has been reduced and the
stage has been set to allow crayfish to recover.
However, rainbow smelt and other forage fish spawn in
extremely shallow water, often 6 inches or less, and the worst
case scenario is one in which lake levels drop after the fish
have spawned. Rising lake levels greatly enhance crayfish
survival by protecting them from harsh effects of wind and
waves. If the lake levels drop below the level in which
crayfish eggs are deposited, no reproduction will occur.
This spring we experienced a run of spawning smelt that
held promise in restoring the prey base and the fishing that
Lake Oahe enjoyed prior to 1997. Unfortunately, Lake Oahe was
scheduled to drop more than 2 feet during the time the eggs
were incubating, leaving them high and dry. The severe drawdown
of Lake Oahe was being done at a time of drought in order to
meet navigation targets established in an out-of-date master
manual.
Out of desperation to save the fishery and the significant
economy that surrounds it, our Governor, William Janklow,
initiated a lawsuit this spring aimed at holding water levels
on Lake Oahe stable until the smelt spawn was complete. South
Dakota successfully demonstrated to the court that the
arbitrary operation of the main stem reservoir in general, and
Oahe Reservoir in particular, had severely harmed Oahe's fish
population. This set off a string of lawsuits throughout the
basin that ultimately led to other restraining orders and an
appeal by the Corps of Engineers to the Eighth Circuit Court of
Appeals.
These extreme measures simply point to the need for a
contemporary master water control manual for the Missouri
River, something the Corps of Engineers has been working on and
delaying for 13 years, long enough for the Upper Basin States
to experience two droughts.
By the end of the year, we will be approaching the lowest
water levels recorded on Lake Oahe since the dams spilled in
the early 1960's, over 30 feet below full pool level. We sit on
the bring of losing all boating access on this huge lake if the
drought persists. Right now we have 31 boat ramps in South
Dakota. That does not count the boat ramps on Lake Oahe in
North Dakota, but 31 ramps on Lake Oahe in South Dakota.
The primary ramps at 13 of these sites are out of service
today because of the low water. By the end of the summer, we
expect seven more to be out of service. That is two-thirds of
the boat ramps. If the trend continues that we are on today and
no change is made in the way that the river is managed, the
drought continues, all of our boat ramps on Lake Oahe will be
out of service by this time next year.
The effects of low water have reduced visitation to Lake
Oahe this summer, and closing more boat ramps will lead to
further decline in visitation. If the current trend continues,
nearly all of the $20 million economy associated with
recreation on just Lake Oahe will be lost next year. The
recreation and fisheries management challenges being presented
in the drought year of 2002 provide a compelling example of why
a new master control manual is needed.
Thank you.
[The prepared statement of Mr. Hofer follows:]
Prepared Statement of Douglas Hofer, Director, Division of Parks and
Recreation, South Dakota Department of Game, Fish and Parks
Thank you for inviting me to appear before the Subcommittee on
Water and Power of the Committee on Energy and Natural Resources to
discuss water management issues on the Missouri River. I am Douglas
Hofer, and I appear before you representing the State of South Dakota
on behalf of the South Dakota Department of Game, Fish and Parks. This
hearing is extremely timely for those of us living in South Dakota,
where we find ourselves in the grip of a prolonged drought. The need
for a revised Missouri River Master Water Control Manual has never been
more critical in the upper basin and a contemporary approach to
managing this river is long overdue.
First of all, let me comment on the obvious: The dry conditions in
the basin this year are creating a hardship for us in the upper basin
states. These times of low runoff demonstrate the continuing and
critical need for a new Master Manual which takes an adaptive
management approach to water supplies and water flows within the basin
on an annual basis.
Fishing, boating, camping, and other water-related recreation on
the Missouri River are very important in South Dakota. Last year, three
million visits were made to Missouri River recreation and lakeside use
areas in our state. This included 70,000 overnight camping units and
over 500,000 angler days of fishing. These angler days are worth more
than 40 million dollars to South Dakota's economy and create hundreds
of jobs.
It's worth noting here that, under the original Pick-Sloan Plan in
1944, our nation embarked upon a plan to harness this great river. We
South Dakotans realized that there was going to be a price to pay,
because rich bottom lands in South Dakota and in the other upper basin
states were forever flooded so people in places like Sioux City, Omaha,
Council Bluffs, Kansas City, and St. Louis could be free from
devastating floods. We were willing to make sacrifices because as it
was proposed, in exchange for having our lands flooded and our people
moved from lands they and their parents had homesteaded and settled,
the Pick-Sloan Plan included promises of prosperity to South Dakota. In
exchange for our priceless bottom land, we were promised irrigation of
some 750,000 acres and water supply projects to our cities and towns
promises that would help provide a way of life for our farmers, tribal
members, and businesses by stabilizing an economy that was all too
dependent on Mother Nature. Related to these promises were additional
promises of wildlife mitigation for the hundreds of thousands of
habitat acres lost to the dams.
However, something happened along the way! Somehow, after the dams
were built and our downstream neighbors could forget about the terrible
floods while enjoying the benefit of cheap electric rates and
subsidized barge traffic carrying commodities between their cities,
they forgot about the promises to South Dakota and our upstream
neighbors. They, and the agencies of the federal government, forgot
that their benefits came at a direct and terrible price to South
Dakota. They forgot that in exchange for their new found prosperity and
development along their sections of the Missouri River, hundreds of
thousands of acres of our richest ranching, farming and wildlife lands
were taken by the federal government and forever flooded.
Interestingly, while the dams and reservoirs brought many benefits
to the downstream states, navigation on the lower Missouri has never
developed to its original expectations. And, while no one even
mentioned recreation as one of the project benefits back in 1944, it
has exploded as a viable industry on the upper basin mainstem
reservoirs. In fact, as you know, the COE Revised Draft Environmental
Impact Statement for the Missouri River Master Water Control Manual
credits recreation with $84.6 million in annual benefits while
navigation creates a mere $6.9 million in annual benefits.
So, as you can see, we are at a major crossroads today. The Corps
continues to operate the reservoirs by an outdated Master Control
Manual. Some of the original purposes of the Pick-Sloan Plan, like
hydropower and flood control, are still valid today. However, the
current Master Manual does not adequately address the conflict between
navigation and recreation. Navigation still takes water to support a
barge channel and during times of drought and water shortages the upper
basin recreation industry suffers accordingly. To keep a full
navigation channel below Sioux City, Iowa, our reservoirs are drained
and our boat docks left high and dry. An $84.6 million industry that
offers recreational benefits to hundreds of thousands of people is held
hostage to a declining and subsidized barge industry which has a $6.9
million annual impact. In summary, not only did the people of South
Dakota get to stare at the empty promises of irrigation and water
supply, but we now get to stare at declining reservoir water levels as
our recreation industry goes down the drain to St. Louis.
We have often wondered how many jobs the barge industry creates. We
now have that number 25 to 40! Are we in South Dakota hearing right?
Are we, as a Nation, continuing to support a barge industry supplying
25 to 40 jobs a year having an economic impact of only $6.9 million a
year when the overall costs to the taxpayers to maintain the barge
canal costs more than the entire industry is worth? And water releases
for navigation continue to receive the highest priority in water
management at a time when the upper basin is in the middle of a
drought?
Let me relate this directly to the conditions we are facing on the
Missouri River in South Dakota this year. Our once nationally
recognized trophy walleye fishery was supported primarily by a prey
source of rainbow smelt. Anglers came from all over the United States
to Lake Oahe to catch large walleyes. In 1996, there were two million
hours of fishing just on Lake Oahe, estimated to be worth $20 million
dollars. In 1997, a half billion adult smelt were flushed downstream
due to high water releases through the Oahe powerhouse intakes and
stilling basin exacerbating the crash of Lake Oahe's prey fish
populations. Following the prey fish population crash, the walleye
fishery began to suffer. By the year 2000 fishing pressure had dropped
to only 25 percent of what it had been and the economic value also fell
to only $8 million dollars. Many businesses and communities which
depend on fishing and related recreation have been affected negatively.
We at Game, Fish and Parks have worked hard at turning this
situation around by trying to get anglers to return to Oahe in hopes of
reducing predator abundance and bringing our reservoir back into
relative balance. Incentives have helped increase fishing pressure and
predator harvest two-fold from 2000 to 2001. Predator abundance has
been reduced in the lower two-thirds of Oahe and the stage has been set
to allow prey fish to recover. However, rainbow smelt and other prey
fish spawn in extremely shallow water, often 6 inches or less, and the
worst case scenario is one in which lake levels drop during and after
the fish have spawned. Rising lake levels greatly enhance prey fish
survival by protecting them from the harsh effects of wind and waves.
If lake levels drop below the level at which prey-fish eggs are
deposited, death through desiccation is ensured.
This spring, we experienced a run of spawning smelt that held the
promise of restoring the prey base and the fishing that Lake Oahe
enjoyed prior to 1997. Unfortunately, Lake Oahe was scheduled to drop
more than two feet during the time the eggs were incubating leaving
them high and dry. This severe draw down of Lake Oahe was being done at
a time of drought in order to meet navigation targets established in
the out of date master manual. We already had four years of intense
fishery management invested in the turn-around of Lake Oahe.
Anglers and businesses in central South Dakota had sacrificed long
enough. To my knowledge, the barge industry has not sacrificed at all
but continues to ``have their cake and eat it too'' at the expense of
the recreation industry in the upper basin.
Out of desperation to save the fishery and the significant economy
that surrounds it on Lake Oahe, Governor William Janklow initiated a
lawsuit this spring aimed at holding water levels on Lake Oahe stable
until the smelt spawn was complete. South Dakota successfully
demonstrated to the Court that the arbitrary operation of the mainstem
reservoirs in general, and the Oahe Reservoir in particular, had
severely harmed Oahe's fish population.
This set off a string of lawsuits throughout the basin that
ultimately led to other restraining orders and an appeal by the Corps
of Engineers to the Eighth Circuit Court of Appeals. These extreme
measures simply point to the need for a contemporary master water
control manual for the Missouri River something the Corps of Engineers
has been working on and delaying for over 13 years, long enough for the
upper basin states to experience two drought cycles.
Since May 21, 2002, Lake Oahe's water level has dropped from
elevation 1596.2 to 1592.5, a drop in the water level of 3.7 feet in
this 300,000 acre lake in just over a month. Full pool on Lake Oahe is
at elevation 1618, over 25 feet higher than Lake Oahe is today. If the
drought continues this summer, the Corps of Engineers has predicted
that Lake Oahe will drop another six feet by the end of September. By
the end of the year we will be approaching the lowest water level
recorded on Lake Oahe since the dams filled in the early 1960s after
the completion of the Pick Sloan project.
The extremely low water level has already had a negative affect on
Lake Oahe recreation and its associated recreation economy. We sit on
the brink of losing all boating access on this huge lake if the drought
persists and the Corps of Engineers continues to use an outdated master
manual, a manual that directs the use of over sixteen billion gallons
of water per day to support a very small barge industry at a time when
the upstream states are suffering from a severe drought.
Thirty-one boat ramp sites exist on Lake Oahe in South Dakota. The
primary boat ramps at 13 of these sites are out of service today due to
the low water levels, and it is expected that another 7 primary boat
ramps will be out of the water by the end of the summer. If the drought
continues for another 12 months and no appreciable changes occur in the
management of the river flows under the current master manual, all 31
primary boat ramps will be out of service on Lake Oahe by June of next
year. What is even worse is that under the current master manual,
navigation would continue to demand water releases until this reservoir
is drawn down a total of 78 feet to elevation 1540, the elevation at
which it is physically impossible to release water through the intakes.
The effects of low water have reduced visitation to Lake Oahe this
summer and closing more boat ramps will lead to a further decline in
visitation. If the current trend continues, most of the $20 million
dollar economy associated with recreation on Lake Oahe will be lost
next year. This will be devastating for resorts, marinas, motels,
restaurants, bait shops and many other businesses in central South
Dakota that depend on the visitors that come to Lake Oahe each year.
This river is in a state of decline. The time has come to change
how water is managed for the Missouri River. The recreational and
fisheries management challenges being presented in the drought year of
2002 provide a compelling example of what is at stake for the State of
South Dakota and for all the other upper basin states.
Senator Dorgan. Mr. Hofer, thank you very much.
Next, we will hear from Tex Hall, chairman of Three
Affiliated Tribes. I might also say that Mr. Hall is president
of the National Congress of American Indians, and we welcome
you here.
STATEMENT OF TEX HALL, CHAIRMAN, THREE AFFILIATED TRIBES, FORT
BERTHOLD INDIAN RESERVATION, NEW TOWN, ND
Mr. Hall. Thank you, Mr. Chairman, for having this
oversight hearing on a very important issue and, of course,
that is grandfathering our language in the Missouri River. Just
about a 30-second history of our tribe as you know, Mr.
Chairman, Fort Berthold is located on the west central boundary
of North Dakota, and our history predates the State and, of
course, our people had Sakakawea, who we lent to Lewis & Clark
when they did the expedition out to the west coast, and so the
contributions are many for our people.
And before the 1944 Flood Control Act came into being our
tribe was one of the few 100 percent self-sufficient tribes, no
unemployment, no welfare, completely self-sufficient because of
the river, before they had the dams, and so we got our food, we
raised our gardens, and before the flood came in, of course,
when the 1948 Army Corps of Engineers came in and did not
provide any consultation, it was to me one of the worst Federal
removal projects in the history of this country.
The Garrison Dam created Lake Sakakawea, which flooded out
156,000 acres of our capital, and it was very interesting to
hear Senator Carnahan and Senator Bond and other Senators talk
about loss of homes, loss of jobs, loss of shoreline. We know
all about that, and it happened 60 years ago, and our
grandparents, basically our parents have said what happened in
the loss of that 156,000 acres was, we really lost our economic
engine. There is no way that can ever be replaced and, of
course, we are very grateful for you, Mr. Chairman, and Senator
Conrad for the Equitable Compensation Act that was partial
compensation for what we lost, but we can testify for hours
about what we lost, and the devastation of the dam that
created.
And so 60 years later now we are just starting to replenish
and rebuild our economy, and I concur with a lot of the
speakers here now that now that you have the loss of the lake
levels, we have a lot of recreation areas at Fort Berthold now,
and it is a big part of our economy, and now we have boat docks
that we cannot access, we have people that are not going to
that part of the lake, and I concur with Mr. Hofer and some of
his--I have been down to Standing Rock, and I have seen the
Oahe Reservoir. It is a terrible scar. It is an ugly scar to
see the lake levels drop, and so we are very concerned and very
disappointed in the Corps' lack of decision, and I appreciate
your comments, Mr. Chairman, on trying to get to some sort of a
resolution or answer to that.
We, too, I mean, all of the tribes have been--we just met
yesterday in Bismarck on the Trust Reform Task Force on
Reorganization. We believe as tribes that under the Winters
doctrine the river is a trust asset, and we feel it is being
mismanaged.
Just like in the Cabell litigation on the Department of the
Interior trust assets mismanagement, where we cannot account
for billions of dollars in the Department of the Interior, now
we are having mismanagement of the river, which clearly there
is a legal obligation here to the Indian tribes, and I was very
appreciative of General Fastabend's comments about the--I think
it was when Senator Hagel asked him what criteria he used when
he was making his decisions, one of the criteria--he named
three, was recognition of the trust responsibility to Indian
tribes, and so I was very appreciative of that, and we want to
hold him to that, and I am glad he said that on the record,
because that is very important to us.
One of our big concerns is the lack of consultation with
the tribes. We did put up many, many comments in my testimony,
Mr. Chairman, written testimony submitted for the record, and
we submitted many, many comments about the need for full and
meaningful consultation, because there is a legal obligation,
because the water is under the Winters doctrine a trust asset
of the tribe, but we are concerned that there is not enough
consultation.
And I do not know if there ever was a specific answer from
General Fastabend about the time frame, but we had asked for an
Indian desk at the headquarters in the Army Corps of Engineers,
so we have a point of contact, so we can get resolutions as
well, and answers to some of our questions, and we would ask
for your help, Mr. Chairman, in getting that desk established
at Army Corps of Engineers Headquarters here, so that is very
important.
Let me just give some recommendations, Mr. Chairman, what
we think can be done. The first recommendation we have is, the
Three Affiliated Tribes and other tribes along the Missouri, is
pass legislation that creates a joint task force between the
Corps and the tribes along the river to address tribal
concerns.
No. 2 would be, pass legislation allowing the tribes the
opportunity to manage various aspects of the river management
system similar to the self-determination action. We are trying
to work on a joint management agreement right now with the
Corps, but that has taken many years to get to a point where it
seems like there is no end in sight, and again if we have
legislation just similar to the 1993 638 piece of legislation
of self-determination that allows tribes to help manage, then I
think that legislation would help us more quickly.
No. 3, provide the necessary resources to identify,
protect, and preserve the cultural and historical sites along
the Missouri River that are sacred to the tribes along the
river, and there is a need for more than $77 million annually,
and this is a figure from the Army Corps of Engineers itself.
However, there is only $3 million appropriated for the fiscal
year, and some of these sites are the most endangered, and I
might add, Mr. Chairman, that as the bicentennial approaches
next year, 2003 to 2006, there is a tremendous amount of
potential for visitors to come. Unfortunately, many of those
sites are flooded and inundated underwater, and the sites that
are remaining are being endangered by the droppage of the lake.
They say there is between 40 and 80 sites, cultural sites that
are lost each year because of the droppage of the river, and
only $3 million appropriated, and the unmet need is $77
million.
Our next recommendation would be to strengthen laws that
are already on the books for cultural site protection. I
believe that the executive orders on consultation are not
strong enough. We need legislation to require adequate
protection to these sacred sites.
The next recommendation is to pass legislation to provide a
joint memorandum of understanding with the Corps and the tribes
for policing of Corps lands along the river and the lakeshore.
Again, with the bicentennial we feel that there are going to be
many visitors. If the lake keeps dropping like it is going to
continue to drop, more sites will be exposed, and the Corps
does not have the resources to police the shores as it is, and
so we are asking for legislation to have a memorandum to have
joint policing by the tribes.
Another recommendation we have is to set aside revenue from
the WAPA power sales for cultural site preservation. It is my
understanding, there are tribes along the Columbia River that
are doing it with the Bonneville Power Association, and I would
recommend that we look at that for the WAPA power sales to make
sure that this legislation does not allow the funds to be used
for other purposes. In my understanding there is about $866
million that comes in revenue from the WAPA sales, but if 1 or
2 percent of that could be set aside for cultural site
protection, I think that that way we have a guaranteed source
of revenue.
Mr. Chairman, I realize my time is up, but these are some
of the recommendations that we would strongly ask that your
committee and, Mr. Chairman, with your influence to help get
that done for the tribes. This affects all the tribes, and as
was mentioned from St. Louis to the Pacific Northwest.
So thank you very much for this opportunity.
[The prepared statement of Mr. Hall follows:]
Prepared Statement of Tex Hall, Chairman, Three Affiliated Tribes,
Fort Berthold Indian Reservation, New Town, ND
Mr. Chairman, members of the Committee, thank you for the
opportunity to present testimony on the management of the Missouri
River on behalf of the Mandan, Hidatsa and Arikara Nation.
background
The issue of management of the Missouri River has always been a
critical issue to the Three Affiliated Tribes. The Hidatsa call
themselves ``People of the willows'', because in our origin story we
emerge from the willows of the river. But all of our three Nations have
for countless years lived and thrived along the Missouri River, which
we have long called ``grandfather''. The Missouri River and the history
of our peoples are inseparable.
We were the Nations that greeted Lewis and Clark in their famous
expedition whose commencement 200 years ago was remembered by President
Bush in a White House ceremony just last week. We provided the famous
guide, Sakakawea, whose likeness now graces our golden dollar coin. We
have always been a peaceful people, traders and agriculturalists.
Before Lewis and Clark came upon us, our culture was complex and well
suited to our life on the upper Missouri.
Yet today we find ourselves in a vastly different environment than
that of our grandfathers and grandmothers. The Missouri River is now
controlled by a series of dams, conveniently placed, as a former
Chairman of our Tribe, Carl Whitman, noted in his testimony regarding
the Equitable Compensation Act in 1991, to have maximum effect on the
Indian tribes whose reservations and homelands lie directly upriver
from the dams, placed that way primarily because it was easier to
condemn Tribal lands than other lands along the river.
As I have testified before, the effects of these dams has been
devastating to the cultures, ways of life and the economies of the
Tribal Nations along the Missouri River. My Nation is only now
beginning to emerge from the long shadow of the devastation of that
``great flood'' as our elders have called the creation of Lake
Sakakawea behind Garrison Dam. This flood took away 156,000 acres of
prime bottom land.The reservoir stretches from one end of our
reservation to the other. The reservoir also means that we have lost
immediate access to the river, as the Corps owns the land adjacent to
it, part of what is called the ``taken'' area.
My Nation was the only Tribal Nation of those affected by dams
along the Missouri River to be split in two parts by its dam. In fact,
to get from one part of our Nation to another, we must travel outside
the boundaries of our reservation. What used to be a close knit
community is now split into widely separated towns, with some
communities, once a few miles part, separated by 120 miles because of
Lake Sakakawea.
We were promised many things by the ACOE at the time we were being
asked to leave our ancestral homelands and our largely self-sufficient
way of life along the river. For example, we were promised preferential
rights to electric power, in fact, many people believe we were promised
free electric power, being generated by the Garrison Dam. That
preference has never materialized, although we finally have received,
along with all other Tribes in the Pick-Sloan Eastern Division area,
including those not actually located adjacent to the Missouri River, an
allocation of WAPA power at cost, beginning in January, 2001. That
helps, but it comes fifty years too late and only provides for one-
third of our needs.
In addition to the flooding of our homelands, we, the Mandan,
Hidatsa and Arikara (MHA) peoples are doubly affected by the lakes
behind those dams, because so much of our history and culture is
associated with sites along the Missouri River, well down below the
Gavin's Point dam and on up to and past the confluence of the
Yellowstone River and the Missouri River. Many of our Mandan, Arikara
and Hidatsa village sites were along the river and have been lost
forever because of the flooding behind the dam. Those that remain, as I
will describe in more detail later, are under continued threat from
erosion, unauthorized archaeological digs, tourists and others
scavenging for souvenirs and development along the lakes and short
sections of river that now make up the Missouri River system.
the u.s. army corps of engineers
Since the construction of the Garrison Dam and the other dams along
the Missouri River, the fate of my Nation and the fate of other Tribal
Nations along the Missouri has been inextricably bound up with the
United States Army Corps of Engineers (ACOE or the ``Corps''), who
decided where the dams would be built, who constructed the dams, and
who now, without direct oversight by the affected Tribal Nations,
control the flow of the river through the dams.During the past nearly
sixty years, since the dams were authorized and constructed, the ACOE
has, until recently, paid little attention to the desires of the Tribal
Nations along the River. This lack of oversight by the Tribal Nations
most affected by the Corps' management of the river is critical: it is
like saying that the Rio Grande river along the U.S. border with Mexico
only belongs to the United States and Mexico has no right to complain
about how the Rio Grande is managed! The present situation is simply
not acceptable.
the master manual revision process
However, recently, the ACOE has solicited the views of the Tribal
Nations along the river because the Corps is now engaged in a process
of reviewing how the river's flow is and should be managed, a process
known as ``Revision of the Master Manual''. In developing the revisions
to the Master Manual, the Corps has come up with a set of ``preferred
alternatives'', in its Draft Environmental Impact Statement (DEIS) that
was produced by the Corps following several years with of effort. This
DEIS has a special section in which the comments of the Tribes were
collected. We also provided comments on the DEIS. According to the
Corps, it must now, following the close of the comment period on the
DEIS, choose to determine how to best manage the river to meet the
needs of the various groups and people who have an interest in how the
river flows.
The preferred alternatives generally provide that the upper river
reservoirs, Oahe, Garrison, and Ft. Peck, should be the ones that
provide the regulation for the downstream users. This means that these
lakes will go up and down depending on the needs downstream, for flood
control on the lower Missouri, for barge traffic on the lower Missouri
and for protection of the piping plover and the pallid sturgeon,
according to the U.S. Fish and Wildlife Service's biological opinion,
among other things.
We find these alternatives unacceptable for a number of reasons,
summarized below.
1. The alternatives (and the Master Manual) do not provide adequate
oversight over river management by the affected Tribal Nations along
the Missouri River.
As mentioned, the Tribal Nations along the Missouri River are
sovereigns whose concerns about river management must be taken into
account as any preferred alternative is considered. Tribal Nations must
have oversight over the river management process, as they have a
considerable paramount interest in the waters of the Missouri River
pursuant to the Winter's Doctrine, which establishes Tribal water
rights as paramount to other users.
This means that if a fundamental Tribal interest in the river is at
stake in the selection of a preferred alternative, the Tribe's
interests should be given preference over other considerations. This
may not presently be the law, but it has been the position of the MHA
Nation that as the paramount water rights holder, the Tribe's position
should be given preference. Legislation should be drafted that would
provide for this. We would propose a joint Tribal-ACOE task force be
mandated like we now have with trust reform to ensure that the concerns
of the Missouri River tribes are fully addressed in the Master Manual.
In addition, and apart from the Master Manual process itself,
Tribes should be given opportunities to take over the management of the
river itself, which is a trust resource, in a manner similar to self-
determination contracts under the Indian Self-Determination and
Education Assistance Act, as amended. There are many areas of
management of the river that could be subject to such self-
determination contracts, some of which are discussed further in this
testimony.
2. ``Winters Doctrine'' water rights are not adequately protected.
In general, the water rights of the Tribal Nations along the
Missouri under the Winters' Doctrine have not been adjudicated. The
reason for this lack of adjudication of water rights is relatively
simple: There has always been enough water in the Missouri to meet
Tribal needs.
But occasionally, there are periods of time, such as now, in
periods of extreme drought in the upper Great Plains, where water
levels are such that Tribal needs for adequate water levels in Lake
Sakakawea or in the other reservoirs along the Missouri are not being
fully met. Lake Sakakawea alone is a major destination for many who
enjoy fishing for walleye and other fish from the lake. At present, in
July 2002, water levels are at the point at which many boat docks and
boat ramps along Lake Sakakawea do not reach the water.These ramps
serve many recreational users and benefit the MHA Nation, which
operates several recreational sites along the lake shore, as well as
other recreational lessees and the State of North Dakota. Our economy
is greatly affected by a water management scheme which does not
adequately protect our interests--Tribal members lose jobs, creating
hardships for our people, and costs to the Tribal, Federal and state
governments increase as well.
If these water levels stay low because enough water is released to
service barge traffic on the lower Missouri, the recreational industry
for the Tribe is greatly affected. Our revenue at our sites is already
down for the summer because of the low water levels. We will provide
the Committee with further statistics about the affects of low water on
our recreational efforts. Again, this is unacceptable. The needs of the
Tribal Nations must be viewed as paramount, as mentioned earlier.
Even worse is that these water levels may stay low for several
years, if the Corps' preferred alternatives are adopted. This does not
bode well for the efforts of the Tribe and the State to encourage the
several million tourists anticipated to come through North Dakota as we
observe the Bicentennial of the Lewis and Clark Expedition over the
next few years. Already there are many putrid smelling mud flats along
Lake Oahe's shores, some near or on the Standing Rock Sioux
Reservation, and we can expect similar problems along Lake Sakakawea in
the near future.
We would ask this Subcommittee to seriously consider legislation
that would delay the implementation of a new Master Manual by the ACOE
until the concerns of the MHA Nation are fully considered by ACOE.
3. The alternatives presented by the Corps result in a wide
variation in lake levels that affect many activities and features of
Lake Sakakawea and the other upper basin reservoirs.
It has already been noted how the variation in lake levels affects
recreational uses of the lake. Aside from the Winters' doctrine issues,
it makes no economic sense to punish the Tribal Nations along the
river, not to mention the states of South Dakota, North Dakota and
Montana, just to benefit downstream barge traffic. The value of the
recreational industry to the Tribes and affected states is well over $1
billion.
4. The alternatives do not seriously consider the enormous negative
impacts of the preferred alternatives on the cultural and sacred sites
identified as belonging to the MHA Nation and other Nations located
along the Missouri River.
One of the most serious issues concerning Missouri River management
is the fate of the cultural, historical and sacred sites associated
with the Tribal Nations along the Missouri River. The vast majority of
these sites are associated with the three Nations of the Three
Affiliated Tribes, the Mandan, Hidatsa and the Arikara. One reason for
this is that the original homelands of our Nations occupied a large
portion of the lands adjacent to the entire length of the Missouri
River. As the Three Tribes were affected by wave after wave of
epidemics of small pox beginning as early as the 17th century,\1\
villages were abandoned and the dead left behind. These abandoned
villages, had associated with them many sacred sites, and both the
village sites and the sacred sites are still honored by our people.
Many of these sites are on lands owned and managed by the ACOE.
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\1\ Some of the smallpox epidemics were caused intentionally by the
U.S. Army and others. Those who lived in earth lodge villages located
on the bluffs above the Missouri were especially hard hit, as the
smallpox epidemics would kill as many as 95% of those living in
villages. Often, several thousand people lived in a single village.
---------------------------------------------------------------------------
Yet, precious little has been done to even identify, let alone
preserve, these sites, despite the existence of a number of Federal
laws which are meant to preserve such areas. These laws include the
Native American Graves Protection and Repatriation Act (NAGPRA), the
National Environmental Policy Act (NEPA), National Historic
Preservation Act (NHPA). Archaeological Resources Protection Act
(ARPA), and Executive Orders on Environmental Justice and Protection of
Sacred Sites. Recently, there was another oversight hearing on whether
these laws and Executive Orders are adequately protecting Tribal sites
before the Senate Committee on Indian Affairs, and I will not repeat
those issues now. But in summary, these laws need to be strengthened to
adequately protect Tribal interests in our cultural heritage.
Because of this lack of protection, the National Historic
Preservation Trust, which seeks to preserve historic places, has
declared, for 2002, the Missouri River one of the eleven most
endangered historic properties in the entire United States. This
designation provides serious recognition to the problems of stabilizing
the shoreline and protecting the sites that remain.
Nor has the Master Manual revision process been very helpful
either. The ACOE has told the Tribes that cultural site preservation is
an ongoing responsibility that is not really part of the Master Manual
revision process. Therefore, scant attention was paid to the effect of
the various alternatives suggested for river management on preservation
of cultural sites. The information provided about site loss did not
provide any meaningful data for the Tribes to use to select among the
preferred alternatives the alternative that would be least harmful to
sacred and cultural site protection.
However, we know that many cultural sites are affected yearly by
the way the river is regulated by the ACOE. As reservoirs go up and
down, cultural sites are eroded away or exposed when water levels are
low. The ACOE has reported that between 40-80 sites are being destroyed
every year through erosion and vandalism.\2\ The ACOE has recently
estimated that at a minimum, $77 million is needed to stabilize the
most important known sites. This estimate is very low, we believe, and
does not necessarily prioritize sites associated with existing Indian
Tribes. Yet, the ACOE has recently announced that it is dedicating only
$3 million towards site stabilization, anti portions of that will not
go to Tribal sites but to State Historic Preservation Offices (SHPO).
We have asked the ACOE to state that it will prioritize the use of the
$3 million for identification and stabilization of cultural sites but
have not yet received anything in writing.
---------------------------------------------------------------------------
\2\ The ACOE has amended its report to indicate that it believes
40-80 sites are destroyed every 10 years, but has not yet provided any
documentation for that number.
---------------------------------------------------------------------------
Still another problem is continued vandalizing of our sites. The
sites are located on lands that are largely unpoliced. Yet, these lands
are also open to the public; anyone with a boat can get to them, and in
many cases they are accessible by land as well. This means that anyone
who wants to look for artifacts can easily go onto Corps' land and dig
away largely without detection. We need a much more vigorous
enforcement mechanism to prevent unauthorized scavenging, or worse yet,
unauthorized archaeological digs from taking place that would disturb
and damage our sites. This is an example of where either self-
determination agreements could be utilized, and where Memoranda of
Understanding between the ACOE and Tribal police should be developed
and mandated by legislation passed by Congress so that all appropriate
laws concerning vandalism of our sites can be vigorously enforced.
Further, we should not have to go to court to force the Corps to do
its job. A recent example of this occurred within the reservation of
the Yankton Sioux Tribe. The Tribe was forced to take the Corps to
court to require the Corps to stabilize a burial site that had been
exposed and was subject to vandalism. This should not have to happen.
Imagine if a burial site sacred to the United States were vandalized;
action would be taken immediately to prevent further vandalism. We
expect similar treatment of our burial sites.
suggested legislative options and other recommendations
1. Recognize Tribal Concerns
Previously in this testimony I have suggested legislation that
would ensure that the concerns of the Tribes along the Missouri about
river management are taken into account as the ACOE prepares its Master
Manual and goes about the business of managing the river. I believe
that it is fundamentally necessary for the Corps to have a direct
responsibility to the Tribes that possess paramount water rights
(Winters' Doctrine rights) along the Missouri River. The President's
Executive Order 13175 which requires consultation with the Indian
Tribes by Federal Executive Agencies does not provide nearly enough
protection to Tribes in regard to Sacred Sites, nor does Executive
Order 13014 which seeks to protect sacred sites on Federal lands.
At a minimum, mechanisms for Tribal consultation need to be
improved. Tribal consultation with affected Tribes must be frequent,
not just when the Master Manual is being revised, as has been the case
over the past two years. We welcome the Corps' efforts to create a
manual for consultation with Tribes, but a manual does not replace face
to face efforts to consult with all of the affected Tribal Nations. As
suggested earlier, we need legislation that will allow Tribes an
opportunity to manage, through self-determination contracts, various
aspects of river management, and legislation that will require the
establishment of a joint ACOE-Tribal task force to ensure that Tribal
needs will be met.
2. Improve the Corps' Budget for Cultural Site Preservation
The Corps needs a better budget for cultural protection, not just
the $3 million mentioned earlier. The Corps has estimated needs at $77
million, which is most likely a conservative figure, and Tribes believe
the amount of the annual appropriation must be higher. Whatever the
amount, appropriations must be to identify all still existing cultural
sites and to manage and preserve them appropriately, in full
consultation with the Tribes with whom such sites are associated. With
the loss of sites continuing each year that are not being protected,
funds for this purpose must be increased.
We recognize that an authorization for some efforts at historical
and cultural site protection is contained within the Water Resources
Development Act of 2000. But an authorization is meaningless without an
appropriation of actual dollars.
Right now the money for cultural site protection comes out of the
operation and maintenance budget for the ACOE. This means that cultural
and historical site protection competes with all of the other
maintenance and operation needs of the Corps. Therefore, when dollars
are appropriated for cultural and historical site protection, they must
be specifically earmarked for that purpose, not simply put into the
operations and maintenance budget in competition with all other needs.
The appropriation must be recurring and permanent, as the threat of
erosion continues as lake levels go up and down. and the river, where
it runs freely, changes course.
We also would note that the Corps has little funds to police its
lands against vandals and those who would exploit our sacred sites.
This is another reason for increasing the budget for protection of our
cultural sites.Another example of the importance of this issue is a
change in policy of the Corps regarding camping on ACOE lands.For
whatever reason, it is my understanding that the Corps now has reversed
its longstanding policy of not allowing camping on its lands, except in
designated campgrounds. This reversal threatens many unmarked and
marked sites which are not policed, as tourists, unauthorized artifact
hunters and others come onto our lands, our historic homelands, and may
find and take things that are not theirs to take. If this policy has
indeed changed, we should have been consulted because it is often our
sites that are affected.
The effort to ensure that our cultural heritage is preserved should
begin in this Subcommittee. I encourage Committee members to ensure
that appropriations for this purpose are increased so that we will
enjoy our cultural and historical heritage for many years to come.
3. Provide adequate funding for protection of Tribal cultural sites
by setting aside some of the Western Area Power Administration's (WAPA)
income for this purpose.
Presently, the Bonneville Power Administration has an agreement
with Tribal Nations along the Columbia River that provides certain
funds that are earned from the sale of electricity on the dams along
the Columbia River for the purpose of cultural site preservation. This
Agreement should be duplicated for the Omaha District. The Western Area
Power Administration (WAPA) earns approximately $866 million per year
in gross operating revenues. A portion of these funds should be
allocated each year to cultural protection in an amount necessary to
meet the needs and there should be a mechanism to ensure that funds are
spent for those purposes and not for other operation and maintenance
tasks of the Corps.
The money taken from WAPA revenues should, like the Equitable
Compensation Act that has benefited the Standing Rock Sioux Tribe and
our MHA Nation, not raise WAPA rates for electricity. Preferably, this
could be done with legislation so that there is no question that the
funds will be used for cultural and historical site preservation.
In summary, we believe that Tribes have a lot to say about
management of the Missouri River for the benefit of all. Our interests
parallel the interests of many who care about preserving the Missouri
River as fully as possible. When the dams were built, as Carl Whitman
noted, we may have been the path of least political resistance. But
fifty years later, we cannot stand silent about management of our
``grandfather''. We urge the Corps and this Committee to work towards
constructing a management river plan that fully takes our views into
account, and that recognizes our paramount rights to the waters of the
Missouri River.
Senator Dorgan. Mr. Hall, thank you very much for your
testimony.
We are joined by Senator Carper, who I assume is joining us
in support of the upstream States' interests in the Missouri
River, coming from the State of Delaware. Maybe Senator Carper
does not want to choose sides here, but I in any event very
much appreciate his work.
Senator Carper. If I can avoid a fight today, I am going to
do that.
Senator Dorgan. Well, we very much appreciate Senator
Carper's work on the Energy Committee and this subcommittee,
and appreciate him being here.
Let me just ask a couple of brief questions. First on
behalf of Senator Johnson, he apologized for having to leave
for another hearing, but Mr. Hofer, he wanted us to ask, you
mentioned 13 of the 31 primary boat ramps at Lake Oahe that are
out of service. You talked about the potential closure of all
31 primary boat ramps by next June. What would be the economic
impact on South Dakota's recreation and tourism economy? Have
you quantified that?
Mr. Hofer. Part of it we have, just on the fishing side,
and that is kind of the driver as far as why most people come
to Lake Oahe to visit for recreational purposes. Our agency has
quantified the fisheries side of it as about $20 million a
year. If you add in recreational boating, it could even be more
than that.
Senator Dorgan. When would the State decide it costs more
to maintain these facilities than is generated by these
operations? Is there a point at which that would occur?
Mr. Hofer. Well, we have already reached that point with
some of them. Of those 13 that the primary ramps have been
closed, we have come up with low water ramps and extended
ramps, and done things to keep some of those in service in a
less than ideal situation. There are others where we have
reached that point where it is just not any longer economically
feasible to keep the areas open.
Senator Dorgan. Mr. Hall, you mentioned the creation of the
Rhode Island-sized flood in the middle of our State. A half-
million acres were actually flooded. Part of that flood covered
a town called Elbow Woods, which you are well familiar with.
That is within the boundaries of your reservation, I believe.
My father as a young boy rode horses on Elbow Woods, herded
cattle for a number of years, so he spent a lot of time in
Elbow Woods. Just prior to its being flooded he took me up to
Elbow Woods and I saw that little town. That town, of course,
has been under water for a half century now, and your people
were moved to higher ground. Because of my father having worked
in Elbow Woods I fully understand what you talked about with
respect to the displacement, and that is what makes it ever
more important as we go through this process with the master
manual, and thinking through all of the difficult and sometimes
controversial issues, that there be close consultation with the
tribal leaders.
Let me just ask of you, I know your testimony reflected
part of your answer, but do you feel the conservation has been
adequate? How could it be improved? You talked about having an
Indian desk at the Corps, but just describe for me generally
the consultation process as you see it, and give me your
analysis of it.
Mr. Hall. Well, thank you for that question. The tribes
feel that consultation should not just be with the master
manual. It is a much bigger issue. It goes before even the
flood, you know, so consultation should be meaningful, it
should be actively engaged. That directly affects those tribes,
and of course in this particular issue there are six dams along
the river, and all of those tribes are directly affected, and
they all have a legal trust asset in that river, and to have
little to no consultation--there has been some consultation,
but it is just on the preferred alternative. It is not really
on the Winters doctrine. I have not found it, Mr. Chairman, in
the master manual in the reading that I have taken. I have not
seen the Winters doctrine referenced in there, and we all know
that it is a trust asset, the river.
The Winters doctrine in the thirties set aside reserved
water rights for Indian tribes, and so now when that water
level is dropped an inordinate amount of feet like that without
meaningful consultation, that is a legal matter, and tribes are
really looking at their legal options that they have right now.
They are watching this whole process, and we were greatly
disappointed that no decision was made.
But on the term of consultation, I think there needs to be
legislation that strengthens and mandates consultation, because
it is good to hear, well, we are one of our three criteria is
that when we are making decisions that we look at our trust
responsibility to Indian tribes, but we would like to see it
beyond the master manual, and we want the Corps to recognize in
their proceedings the Winters doctrine.
Senator Dorgan. That is a good point, and let me say that
my colleagues and I on this committee recognize that there are
a couple of important issues with respect to tribes. One is
sovereignty, and that renders tribal governments in a slightly
different way to expect closer consultation. The other is a
trust responsibility, so we recognize there is a special
responsibility here because of sovereignty and trust
responsibilities.
Let me ask Mr. Frink, if I might, some say, well, the whole
problem here is that there is not enough water in the system,
and so because there is not enough water in the system, that is
what causes these tensions, but is it not the case that at
times when there is enough water or not enough water, the issue
is how that water is managed, and for whose benefit? Is that
not the issue?
Mr. Frink. Mr. Chairman, I think it is, and trying to find
a balance is really the key. In regard to that, the MRBA I
think really needs--Missouri River Basin Association--really
needs to be commended for what they have accomplished. The
eight States used to be split four and four, four upstream and
four downstream on the major issues, and we actually have
gotten to a point now where we have got one alternative where
seven out of the eight support this one alternative.
Senator Dorgan. Which is the eighth that did not?
Mr. Frink. Eighth is Missouri, and even Missouri, they
offered good input, and a lot of their ideas have been
incorporated, but in the end they feel that they have to vote
against it, but we got to that point where seven out of the
eight would support it by asking the States like Nebraska and
Iowa and Kansas what they could live with, and what they could
not live with, and clearly one of the keys is, they need water
supply, adequate water supply for their cities and the
industries, and so the MRBA plans that we are recommending
provide adequate water supplies for those.
Senator Dorgan. And quickly, Mr. Wells, the Missouri River
Basin approach attempted to develop a consensus, has done so
with every State save Missouri. Can you tell me why Missouri
does not feel that the Missouri River Basin approach that has
been a consensus approach is not adequate for Missouri?
Mr. Wells. Yes, sir, Senator Dorgan. If you look at the
actual numbers that were presented by the MRBA, and look at
where--two things really concern Missouri, and one is we do not
think that the Mississippi River impacts have properly been
taken into consideration. You talk about a vote of 7 to 1.
Well, they did not allow the Mississippi River States to vote,
and they are significantly impacted, but just to back up to the
numbers, the MCP, the modified conservation plan that the MRBA
that seven out of eight of the States supported, call for
shortening the navigation season by almost a month, when the
reservoir levels, the total system levels are 59 million acre
feet.
That is 2 million acre feet up into the annual pool. We
have analyzed that to see that in over 100 years of analysis,
some years we would be shortening the navigation season,
penalizing navigators in the month of November, which is one of
our big months, especially on the Mississippi, when our grain
is being shipped south, and then we looked at the following
year, and we actually had a flood, so just looking at 100 years
of records, we just thought that was not a reasonable approach.
And also just to have like a drop-dead target of 59 million
acre feet, the target today under the current water plan is 41
million acre feet. You see the difference between 41 and 59. It
is hard for us to realize, or to surmise that this is a
compromise that anybody went half-way or anything like that.
This is a total shift of water, we think, out of the Lower
Basin.
Senator Dorgan. I guess I understand now what you are
saying. You are concerned about the Mississippi, among other
things, and I suppose one could extend that to the Mississippi,
and the Gulf of Mexico, and the earth, but the Missouri River
Basin is a basin represented by States that share the Missouri
River, and share a concern about how that river is managed for
the benefit of the Missouri River Basin States.
But at any rate, Senator Carper, do you have any questions?
Senator Carper. No. I learned more in the last 15 minutes
that I learned in the last 15 years of my life. We thank you
for being here and enlightening me, and hopefully some others
on the committee, and our staffs. Thank you.
Senator Dorgan. I think the statements that have been made
and the testimony given will help complement a record that has
existed now for some many years. Today's hearing is an attempt
to see if we cannot stimulate further action that will reach
some kind of a conclusion about the management of this
important river.
When I started this morning, I pointed out, or some of my
colleagues did, this is the river that Lewis and Clark trekked
up in order to complete one of the great expeditions in the
history of America. It is a great river. It, as Senator Daschle
indicated, in my judgment and in the judgment of many, has been
horribly mismanaged and has been injured dramatically in many,
many ways, and it begs for a new management plan, and better--
well, better stewardship, I should say, by those who are
required to be involved in it, and I think this hearing will
contribute to applying pressure at appropriate points to see if
we cannot reach a conclusion.
Let me thank this panel for your testimony, and this
subcommittee is adjourned.
[Whereupon, at 12 noon, the hearing was adjourned.]
APPENDIXES
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Appendix I
Responses to Additional Questions
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Department of the Army,
Northwestern Division, Corps of Engineers,
Omaha, NE.
Hon. Byron L. Dorgan,
Chairman, U.S. Senate, Committee on Energy and Natural Resources,
Washington, DC.
Re: Missouri River Water Management Division
Dear Senator Dorgan: Thank you for your letter of July 16, 2002 in
which you submitted follow-up questions to the July 10 hearing before
the Subcommittee on Water and Power of the Committee on Energy and
Natural Resources.
My responses to your questions are enclosed.
If you have any additional questions or would like to discuss this
issue, feel free to contact me. The project manager for the Missouri
River Master Manual Review and update is Rosemary Hargrave. Your staff
may contact her anytime at 402-697-2527. Copies of this correspondence
have been provided to the Committee by fax and e-mail as indicated in
your letter.
Sincerely,
David A. Fastabend,
Brigadier General,
U.S. Army Division Engineer.
[Enclosure.]
Responses of Brigadier General Fastabend to Questions
From Senator Dorgan
Question 1. Do you plan to comply with the requirements of the
Biological Opinion? How?
Answer. The Corps intends to comply with the Endangered Species Act
(ESA). There is a high level of agreement between the Corps and the
U.S. Fish and Wildlife Service (Service) regarding the biological
attributes necessary to ensure the survival of the interior least tern,
piping plover, and pallid sturgeon, three species provided protection
under the ESA. In their November 2000 Final Biological Opinion to the
Corps (BiOp), the Service concluded that our current operation of the
Missouri River Mainstem Reservoir System jeopardizes the continued
existence of these three species. The Service also provided a
Reasonable and Prudent Alternative to jeopardy (RPA) that included the
following elements:
Adaptive Management
Intrasystem Unbalancing
Prescribed Release Modifications from Gavins Point Dam
and Fort Peck Dam
Habitat Creation, Restoration and Acquisition
Species Specific Measures
The Corps is in agreement with all elements of the RPA as described
by the Service in the BiOp with the exception of release modifications
from Gavins Point Dam. In May of 2002 the Corps provided the Service
supplemental biological and engineering analyses of the prescribed
Gavins Point Dam release modifications. We also presented the Service
with a Preferred Alternative (PA) that takes a scientific based
approach to flow changes from Gavins Point Dam, The Corps believes that
this PA would ultimately result in an ecologically improved hydrograph
for the Missouri River that accomplishes the attributes that the Corps
and the Service have agreed are necessary to ensure survival of the
three listed species.
It should be noted that more stringent drought conservation
measures that would conserve more water in the upper three lakes (Ft.
Peck, Lake Sakakawea, and Lake Oahe) early in a drought were not
included in the BiOp RPA, but have been incorporated into modeling of
all alternative flow plans provided to the Service.
Question 2. Has a recommendation been made to your Headquarters
regarding a PA? If so, what is it? Does it comply with the BiOp?
Answer. Yes, a recommendation for a PA was made to the Headquarters
of the Army Corps of Engineers and to the Assistant Secretary of the
Army for Civil Works. While the PA proposes an alternative strategy for
Gavins Point Dam release modifications than that prescribed in the
BiOp, the Corps believes that a scientific approach to Gavins Point
Darn release changes included in the PA will ultimately result in the
attributes necessary to ensure survival of the three listed species.
The Corps believes the PA complies with the ESA.
Question 3. When do you expect to announce the PA? What are the
reasons for delaying this announcement?
Answer. The Corps and the Service have entered into informal
consultation under Section 7 of the ESA. During the informal
consultation, the two agencies are working cooperatively to assess
available scientific and technical information, and explore a range of
possibilities regarding operation of the Missouri River Mainstem
Reservoir System. Both the Corps and the Service agreed to delay
announcement of a PA. The agencies believe that the informal
consultation will be much more effective to the extent that it can be
protected from the public controversy associated with Missouri River
water management decisions. We believe the public will be much better
served by a product that reflects the coordinated position of the
entire Executive Branch. The Corps will use the results of the
consultative process as we complete the Final Environmental Impact
Statement (FEIS) for the Master Manual Review and Update. The FEIS will
include a description of the environmental and economic impacts of the
PA. A 30-day comment period will follow release of the FEIS to provide
public and Congressional review of the PA before a Record of Decision
is signed.
Question 4. Do the Corps and the Service disagree over what a PA
should be? Describe the differences in opinion.
Answer. The Corps will not speak on behalf of the Service regarding
their conclusions about the PA. However, it may be premature for the
Service to have formed an opinion on a PA prior to completion of the
consultation process.
______
Department of the Interior,
Office of the Secretary,
Washington, DC, September 30, 2002.
Hon. Byron L. Dorgan,
Chairman, Subcommittee on Water and Power, Committee on Energy and
Natural Resources, U.S. Senate, Washington, DC.
Dear Mr. Chairman: Thank you for your July 16, 2002, letter and
additional questions from the Subcommittee on Water and Power
concerning your July 10, 2002 hearing on the operation of the Missouri
River by the Army Corps of Engineers. Enclosed with this letter are our
responses to your questions.
If you have further questions, please contact me or have your staff
contact Gary Frazer, Assistant Director for Endangered Species at (202)
208-4646.
Sincerely,
David P. Smith,
Deputy Assistant Secretary for
Fish and Wildlife and Parks.
[Enclosure.]
Reponses of David P. Smith to Questions From Senator Dorgan
Question. What will happen if the Corps does not modify its
Missouri River operations by 2003 as required by the Biological
Opinion?
Answer. The reasonable and prudent alternatives set forth in the
U.S. Fish and Wildlife Service's November 2000 Biological Opinion was
based upon a spring rise being provided once every three years, on
average, beginning in 2003. Therefore, the Corps could provide for a
spring rise in 2004 or 2005, if conditions allow.
To answer your question much more generally, absent any other
mitigating factors, if an action agency does not implement the
reasonable and prudent alternatives set forth in a U.S. Fish and
Wildlife Service Biological Opinion, the action agency may not be able
to demonstrate compliance with section 7(a)(2) of the Endangered
Species Act. An agency could violate section 9 of the ESA if
noncompliance results in take of a listed species. Either situation
could subject the agency to potential third party litigation.
Question. Are you aware of any alternatives that do not include
flow modification from Gavin's Point Dam that would meet the
requirements of the ESA?
Answer. The Service continues to work with the Corps to identify
and evaluate potential alternatives. The Corps and the Service have
entered into informal consultation and are working at multiple levels
to address issues related to ongoing operations of the Missouri River
system and to address how best to proceed from here. Both agencies are
considering all of the conservation tools available to us and we are
committed to exploring a variety of approaches towards meeting our
obligations to conserve the listed species. These discussions are
continuing.
______
Responses of Douglas Hofer to Questions From Senator Johnson
Question 1. Mr. Hofer, the Corps of Engineers is considering an
alternative management plan that gradually reduces Gavins Point Dam
releases from 25,000 cfs to 21,000 cfs during the months of June, July,
and August. Can you speak to the benefits of reducing releases during
the summer months for the mainstem reservoir system?
Answer. A 4,000 cfs reduction in summer releases from the Missouri
River reservoir system in South Dakota would have a positive effect on
recreation, especially on Lake Oahe (and the two mainstem reservoirs
north of South Dakota in North Dakota and Montana). The primary benefit
relates to boating access. The lower releases would sustain the
reservoirs at higher elevations during the summer months when
recreational boating use is the heaviest. During drought years
especially, such as we are experiencing now, boat ramps go out of
service when water levels fall too far. At some sites, extending the
bottom of the ramp (at a significant cost) is feasible. At other sites,
the topography of the lake bottom doesn't allow extension and the ramp
is lost to service until the water level rises.
A second problem associated with maintaining functional boat ramps
during low water, is siltation. With expansive areas of erodable
shoreline exposed, wind driven waves cause silt to buildup on boat
ramps rendering them unusable. Silt buildup of 18 inches on a ramp can
occur overnight when water is low and the wind is right. Mechanical
removal, the only solution to the problem, is both costly and time
consuming and causes temporary ramp closures. Lowering summer releases
and therefore maintaining the reservoir water levels at a higher
elevation would increase boating access.
The same benefits, to a lesser extent, would be realized on Lake
Sharpe, Lake Francis Case and Lewis and Clark Lake. These smaller
reservoirs are currently managed by the Corps at more constant water
levels throughout the summer. However, because they are shallower
reservoirs, boat ramps have a shorter usable range. Minor fluctuations
can cause access problems. Maintaining more water in the reservoir
system in June, July and August, would benefit recreation use in the
entire system.
Question 2. This past spring, the Corps of Engineers reduced water
levels at Lake Francis Case and Lake Sharpe to maintain a navigable
channel in the lower Missouri River Basin. At one point this spring,
Lake Sharpe dropped several feet in a few days. These reductions killed
millions of rainbow smelt eggs in these two reservoirs. Can you explain
how these reductions impact fish who feed off of these prey fish
populations? How does a reduction in the availability of prey fish
ultimately impact recreation?
Answer. A gradual reduction in Gavins Point Dam releases from
25,000 cfs to 21,000 cfs during the months of June, July and August
would have many benefits to mainstem reservoirs as listed below:
Most importantly it would conserve water in the reservoirs
preventing increased reduction in fisheries habitat. For
example, declining water levels during 2002 in Lake Oahe have
reduced the volume of coldwater habitat required by prey fish
such as rainbow smelt by 35%. This means that Lake Oahe can now
support 1/3 as many prey fish as it could during a normal year.
Additionally, more water conserved in all the mainstem
reservoirs would enhance sport fisheries through increased
habitat availability.
A reduction in flows during summer months would enhance
survival of young fish in all reservoirs by reducing the
potential of them being flushed from the reservoir. Rainbow
smelt are most susceptible to being flushed from a reservoir
from mid-June to mid-September, therefore reduced flows during
these months would lessen the impacts of entrainment. In excess
of 430 million rainbow smelt were lost from Lake Oahe from June
through September of 1997, a period of higher water releases,
which wreaked havoc with Lake Oahe's sport fisheries and the
industry they support.
More stable lake elevations would lessen the impacts of
shoreline erosion.
The reduction in water levels in Lake Francis Case and Lake Sharpe
to maintain a navigable channel in the lower Missouri River Basin had
the following potential negative impacts:
Walleye populations could have been impacted through the
loss of a large portion of this year's production of young
fish. The annual production of walleyes in these reservoirs is
important because these reservoirs are intensively fished and
therefore require consistent replacement of the most popular
sport fish.
Self-sustaining populations of rainbow smelt only exist in
Lake Sakakawea and Lake Oahe because of their need for
coldwater habitat, which these two reservoirs provide during
warm summer months. A reduction of rainbow smelt eggs or any
fishery through mismanagement of water levels can have serious
impacts on a fishery and the economy it supports. For example,
in Lake Oahe rainbow smelt, a prey fish, had been relatively
abundant prior to 1998. Abundant rainbow smelt supported a
walleye fishery in Lake Oahe, which from 1991-1998 provided an
average annual economic impact of almost $20 million economic
impact. The smelt population crashed due in part to the
flushing of in excess of 430 million smelt from Oahe Dam in
1997. Subsequently, the walleye fishery, which rainbow smelt
had supported also suffered and resulted in a loss of almost
$12 million in economic impact to north-central South Dakota in
2000.
Portions of these statements can be referenced in affidavits of
Wayne Nelson-Stastny in the Case of STATE OF SOUTH DAKOTA and WILLIAM
J. JANKLOW, GOVERNOR OF SOUTH DAKOTA, PLAINTIFFS, v. LT. COLONEL KURT
F. UBBELOHDE, DISTRICT ENGINEER, OMAHA DISTRICT, UNITED STATES ARMY
CORPS OF ENGINEERS and GENERAL DAVID A. FASTABEND, NORTHWEST DIVISION
COMMENDER, PORTLAND, DEFENDANTS United States District Court, District
of South Dakota Central Division.
______
[Note: Responses to the following questions submitted to
the Department of Agriculture and the Bureau of Reclamation
were not received at the time the hearing went to press.]
U.S. Senate,
Committee on Energy and Natural Resources,
Washington, DC, July 16, 2002.
The Honorable Bill Hawks,
Under Secretary of Agriculture, Marketing and Regulatory Programs, U.S.
Department of Agriculture, Washington, DC.
Dear Under Secretary Hawks: I would like to thank you for appearing
before the Subcommittee on Water and Power of the Committee on Energy
and Natural Resources on July 10. As a follow-up to our hearing, I am
attaching additional questions to be submitted for the record. We
request your response to these questions.
Please review the questions and return your answers to us by July
24 so that they may be added to the record.
Due to the current delay in receiving mail, please provide us with
your answers by faxing them to the Committee on Energy and Natural
Resources, Democratic Staff at (202) 224-9026 or (202) 224-4340. You
may also provide us with your answers via e-mail to Malini--
[email protected]. Should you have any questions, please contact
Malini Sekhar (202) 224-7934 of the Committee staff.
Sincerely,
Byron L. Dorgan,
Chairman, Subcommittee on Water and Power.
Questions for the Department of Agriculture (Undersecretary Bill Hawks)
1. What role has the Department of Agriculture been taking in the
review and revision of the Master Manual?
2. According to a report (``Does Barging on the Missouri River
Provide Significant Benefits?'' 1999) by two agricultural
transportation economists, Michael W. Babcock of Kansas State
University and Dale G. Anderson of the University of Nebraska Lincoln,
the amount of commerce shipped on the Missouri River is ``both low and
declining.''
Does that continue to be the trend?
What percent of grain tonnage produced in the Missouri River
Basin is hauled by barge on the Missouri?
What percent is transported by rail?
By truck?
3. According to the Corps of Engineers, the actual direct economic
benefit that comes from transporting goods on the Missouri River
amounts to less than $6.97 million per year.
Do you have any figures with respect to the cost of
maintaining these navigation channels on the river?
What are the costs to recreation and fish and wildlife that
result from maintaining navigation?
4. In addition, pro-navigation interests argue that there are
significant competitive rate benefits with respect to rail and trucking
rates that result from having competition from barge shipping. However,
two studies (``Does Barging on the Missouri River Provide Significant
Benefits?'' Michael W. Babcock and Dale G. Anderson, 1999; and ``The
Competitive Benefit of the Missouri River? A Review of `Rail Rates and
the Availability of Barge Transportation on the Missouri River,' ''
Philip C. Baumel, 1998) undertaken by leading agricultural
transportation economists in the region (at the University of Nebraska
Lincoln, Kansas State University, and Iowa State University) have
rejected the existence of any significant competitive rate benefits
resulting from navigation on the Missouri.
These studies indicate that the methodology underlying the Corps'
conclusions of competitive rate benefits is flawed.
What is your response?
The studies conclude that other competitive factors such as
multiple rail shippers and Mississippi navigation rather than the
existence of barge shipping on the Missouri play a much larger role in
affecting rates.
Do you agree or disagree and why?
5. Some have raised concerns about the effects of proposed Gavins
Point Darn releases on flood control.
However, I understand that the Biological Opinion provides
that these proposed releases would be made only once every
three years and that the releases would not be made in
potential flood situations when runoff is predicted to be high.
Isn't this correct?
______
U.S. Senate,
Committee on Energy and Natural Resources,
Washington, DC, July 16, 2002.
Margaret Sibley,
Director of Policy, Bureau of Reclamation, Washington, DC.
Dear Ms. Sibley: I would like to thank you for appearing before the
Subcommittee on Water and Power of the Committee on Energy and Natural
Resources on July 10. As a follow-up to our hearing, I am attaching
additional questions to be submitted for the record. We request your
response to these questions.
Please review the questions and return your answers to us by July
24 so that they may be added to the record.
Due to the current delay in receiving mail, please provide us with
your answers by faxing them to the Committee on Energy and Natural
Resources, Democratic Staff at (202) 224-9026 or (202) 224-4340. You
may also provide us with your answers via e-mail to Malini--
[email protected]. Should you have any questions, please contact
Malini Sekhar (202) 224-7934 of the Committee staff.
Sincerely,
Byron L. Dorgan,
Chairman, Subcommittee on Water and Power.
Questions for the Bureau of Reclamation (Margaret Sibley)
1. I understand that the Bureau of Reclamation does not operate any
of the mainstem dams on the Missouri. However, you do operate Canyon
Ferry Dam on the Upper Missouri, and have responsibility for facilities
on the tributaries.
What efforts do you make to coordinate your operations with
the Corps?
Are there measures that the Bureau can take to address
issues of riverine habitat and flows in the Missouri River?
2. Do operations on the tributaries affect the upper lake levels in
the Missouri River system?
Appendix II
Additional Material Submitted for the Record
----------
June 27, 2001.
Hon. JoAnn Emerson,
U.S. House of Representatives, Cannon Building, Washington, DC.
Dear Representative Emerson: We are writing concerning an important
provision in the fiscal year 2002 Energy and Water Appropriations bill.
Section 106 of H.R. 2311 stipulates that changes in the management
of the Missouri River cannot be made to allow for alteration in river
flows during springtime. Removing this provision would not only affect
farmers in Missouri, Nebraska, Iowa and Kansas by potentially flooding
their land, but also affect barge traffic movements on the Missouri and
Mississippi Rivers. Without proper management of river flows over the
course of the year, transportation movements could be hampered by
insufficient water levels on the Missouri River and the Mississippi
River between Memphis, Tennessee and Baton Rouge, Louisiana.
If an amendment is offered to strike Section 106, we urge you to
vote against it. Removing this provision would have significant impacts
on productive agricultural lands as well as the movement of
agricultural commodities and input supplies along the Missouri and
Mississippi Rivers.
Sincerely,
Agricultural Retailers Association; American Farm
Bureau Federation; American Soybean
Association; Midwest Area River Coalition
(MARC 2000); National Association of Wheat
Growers; National Corn Growers Association;
National Council of Farmer Cooperatives;
and National Grain and Feed Association.
______
Friends of Lake Sakakawea,
July 2, 2002.
Senator Byron Dorgan,
Subcommittee on Water and Power, Washington, DC.
Senator Dorgan and Members of the Subcommittee: Thank you for this
opportunity to relay our concerns about the lake level fluctuations in
Lake Sakakawea and the need for release of a Missouri River Master
Water Control Manual.
In plain and simple terms--we're dying without better management of
Lake Sakakawea. Although we often talk about the smelt population and
the environmental impact of low water levels, all of that translates
into tourism. Without tourism, our businesses will die. We no longer
can count on the farm economy to sustain our existence. Tourism is a
growing and necessary industry in our state; we need to have a Master
Water Control Manual that recognizes the significant economic impact of
recreation.
Members of Friends of Lake Sakakawea own and manage businesses in
communities near Lake Sakakawea. Here are some of the quotes some of
them gave the last time the lake hovered this low:
We opened doors in 1988, we were here for six years with no
water. We changed from a marina to a restaurant. It was pretty
tough. You might as well close up shop if you're only a marina
and people can't get to your place.
--Owner, Lund's Landing Resort
We had virtually five years of no income. If it would have been
private enterprise, we would have been bankrupt. Next year
could be the first year since taking it over in 1987 that we
will break even. It took a while to get clientele back, we
needed to make repairs, we lost at least half of our tenants.
It was the first full year we had. When we bought into the
business, I was too cocky. I thought it was too big of a lake
to ever go dry. I was dead wrong. Now I'm gun shy. I'm afraid
to plan on a good next year because I figure there's a 50%
chance we'll be on dry ground.
Investor in Dock Owners Inc.--own all the docks
I was a casualty of the Corps. The problem is we're not talking
about recreation, it's tourism. It's an industry, it's not just
people out having fun. Businesses like ours closed up and down
the lake. Restaurants, clothing stores, grocery stores, one
after another, after another. We were a family that lost
everything we had financially. Look at the lake now--it's gross
mismanagement. The Corps pulled the plug last year and forgot
to put it back in.
Owner that closed supper club in Garrison in 1990
In the 1980s we had 20 big boats in our bay. Now we have three.
The three salmon fishing charters are gone. Most of the boats
have been sold. During the late 80s our marina was virtually
out of business. We moved ramp five times and delivered gas.
1998, on the other hand, was phenomenal. The revenue was what
it should have been eight years ago. We're just recovering from
the bad years.
Owner Indian Hills Resort
My parents owned the business until 1990 when they said to hell
with it and went bankrupt. I bought it at the sheriffs sale.
Business has increased 500 percent since then. But it could
happen again. Absolutely. I was here the last time and it was
ugly. The Tourism Business has such a trickle down affect, it
touches everyone. It's a total crime to have the lake at the
level it's at now. It's pretty scary where it could be by next
spring.
Owner, Watford City sporting goods store
It's time for a Manual that puts navigation in the back seat and
allow us to put recreation where it belongs. In one lake community
alone, sales fluctuate $4 million a year based on the level of the
lake.
Please give this your immediate attention. Without some change . .
. we're dying.
Sincerely,
Jill Denning Gackle,
Member.
______
July 8, 2002.
Senator Byron Dorgan,
Committee on Energy and Natural Resources, U.S. Senate, Washington, DC.
Re: Hearing on Missouri River Master Water Control Manual
Senator Dorgan: I'm writing on behalf of the North Dakota
Association of Rural Electric Cooperatives to provide input for the
hearing you'll be holding on Wednesday, July 10, as part of your work
as Chairman of the Subcommittee on Water and Power.
First, we want to commend you for holding this hearing and calling
attention to a critical issue facing states in the Upper Basin of the
Missouri River. We have participated in hearings on this subject here
in North Dakota and our view remains much the same: the water
management issues and needs of the 21st century are markedly different
from the needs of the 20th century. It is time for the Corps to accept
their responsibility to issue the new Master Water Control Manual. In
so doing, we would support a water management plan that better
recognizes the needs of the upper basin states, especially in times of
drought and low water supplies as we are experiencing this year.
Second, we would ask that any revision to the Master Water Control
Manual continue to treat hydropower production as a critically
important function of the Pick Sloan plan. The cost-based hydropower
marketed to our members (RECs) is an important part of the foundation
that allows cooperatives to offer affordable, dependable power supply
to their members. In our view, affordable, dependable power continues
to be a contemporary need for our member consumers.
Again, Sen. Dorgan, thanks for your leadership in calling attention
to this critical issue. The Corps of Engineers has had more than ample
time to study a revision to the Master Water Control Manual.
Sincerely,
Dennis Hill,
Executive Vice President and General Manager.
______
Standing Rock Sioux Tribe,
Fort Yates, ND, July 9, 2002.
Hon. Byron L. Dorgan,
Chairman, Subcommittee on Water and Power, Committee on Energy and
Natural Resources, U.S. Senate, Washington, DC.
On behalf of the Standing Rock Sioux Tribe submitted herewith is
the written testimony for the Subcommittee's hearing on Wednesday, July
10, 2002, regarding water management on the Missouri River, including
the effects to revise the Missouri River Master Manual Water Control
Manual.*
---------------------------------------------------------------------------
* The written testimony has been retained in subcommittee files.
---------------------------------------------------------------------------
As indicated in your letter of June 28, 2002, due to time
constraints you are unable to accommodate an oral presentation from the
Standing Rock Sioux Tribe at the July 10, 2002 hearing.
However the Standing Rock Sioux Tribe would want to be afforded the
opportunity to discuss this very critical issue with you, and we hope
that this can take place as soon as possible.
Should you have any further questions regarding this matter please
contact me or should your Committee staff require any additional
assistance please contact Gary J. Marshall, Director, Department of
Land Management at (701) 854-7579 directly.
Respectfully submitted,
Charles W. Murphy,
Chairman.
______
Nebraska Farm Bureau Federation,
Lincoln, NE, July 9, 2002.
Hon. Chuck Hagel,
Rusell Senate Building, Washington, DC.
Dear Senator Hagel: As President of Nebraska's largest farm
organization, I am writing to ask that you convey the following
comments to the Water Power subcommittee of the Energy and Natural
Resources Committee during its July 10, 2002 hearing on Army Corps of
Engineers management of the Missouri River.
For the record, Nebraska Farm Bureau Federation is strongly opposed
to the flow changes currently under consideration with the Army Corps
of Engineers--particularly the proposals that contain a ``spring rise''
and the low summer time flows. We strongly support the current water
control plain and efforts by the Corps to balance all the competing
interests on the river. The impact these proposal would have on farmers
along the river will be devastating due to additional flooding and
inland drainage problems. In addition, the low summer flow will prevent
season-long commercial navigation on the Missouri which is important
for movement of grain to export and for prices farmers receive at their
local elevators.
Several times during the 1990s, Nebraska producers were unable to
plant significant portions of their bottomland acres because of
flooding of the Missouri River tributaries and poor drainage problems.
Larger than normal spring releases by the Corps to address endangered
species habitat concern created even more of a problem with flood water
drainage at that time. Also, drainage and tile systems along levees and
other streams were backed up or inoperable creating a situation where
even more land was left idle. The spring rise flow regime that the U.S.
Fish and Wildlife Service is proposing would make those problems for
farmers even worse. It is estimated that up to 1.4 million acres of
farmland in Nebraska, Iowa, Kansas and Missouri could be damaged due to
flooding and poor drainage as a result of the proposed spring rise.
Several special interest groups supporting the high spring-low
summer time flows suggested by the U.S. Fish and Wildlife Service
opinion seem to view navigation has insignificant on the Missouri
River. At a time when consolidation and concentration issues are
causing a great deal of concern in agriculture, the last thing
producers need is for the federal government to change the management
of the river in a way that would negatively impact navigation. While
shipments of grain and farm inputs on the Missouri River may not be
huge compared to other rivers, it does provide another option to rail
and truck transportation, which is essential for keeping
transportation, costs competitive and low. Also, it is important to
note that the Missouri River provides, at tunes, up to one-half of the
Mississippi River flow where the two rivers join. The Mississippi River
carries more than 60 percent of our nation's export grain products and
the Missouri River summer time flow is critical for the overall
efficiency of our nation's navigation system.
Farmers tend to develop solutions in a plain and simple way and we
believe the Fish and Wildlife Service is making the management of the
Missouri River too complicated. Congress has a law in place that states
flood control and other purposes should be balanced in the management
of the Missouri River system. Listings under the Endangered Species Act
have placed more focus on one of the eight purposes of mainstream
reservoir system.
It would seem logical to us that some effort should be made to
establish a baseline to accurately assess where we are now in terms of
the condition and situation of the protected species of concern. For
example, the International Piping Plover Census found that plover
numbers have increased 470 percent along the Missouri River in the past
five years and now just over a thousand plovers are found there. Susan
Haig, director of the census and a U.S. Geological Survey scientist,
said recent favorable habitat conditions along the river may have
spurred the increase. In other words the birds found and used the
riverine habitat.
However, despite these facts and other reasonable approaches to
protect endangered species, just last Friday the Corps was barred from
relocating the nests and eggs of endangered species to a safe location
as a part of its plan to increase of water flows necessary to support
river navigation. At what point are we at in society today when the
federal government sacrifices the needs of humans to the rigid
interpretation of the Endangered Species Act by bureaucrats trying to
protect two endangered birds. A realistic approach was being
implemented by the Corps to protect the species while supporting
navigation and it economical benefits. However, the Endangered Species
Act seems to be the ``trump card'' that defies all logic and common
sense in the federal governments effort to balance the interests of
society.
If it is determined that more habitat is needed along the Missouri
River for certain species, modifications should be taken first to
improve existing habitat by pursuing more enhancements of oxbow lakes,
wetlands and other natural habitats along the river and in the
reservoirs. We strongly believe that there would be landowner support
for fish and wildlife habitat enhancement along the river as long as
those approaches are voluntary and incentive-based.
If it is determined that more needs to be done to improve the
habitat by altering the river flows, gradual changes could be examined
within the framework of the current water control plan. At the same
time, social/economic analysis evaluations should be conducted to
coincide with any flow changes made solely due to a species habitat
issue.
In conclusion, Nebraska Farm Bureau Federation believes that future
management decisions for the river should not ignore the primary
purpose of the mainstream dam system of flood control and other
important benefits it provides such as hydropower, and navigation.
Moreover, those decisions should not threaten the people and
communities along the river and they should not forget and place undue
harm on individual farmers along the river who are a part of the
foundation of our nation's food and fiber system. Therefore, we
strongly support the current water control plan on the Missouri River,
which attempts to balance all interests as opposed to placing
additional weight on endangered species.
Sincerely,
Bryce P. Neidig,
President.
______
American Rivers,
July 18, 2002.
Hon. Byron L. Dorgan,
Chairman, Subcommittee on Water and Power, Committee on Energy and
Natural Resources, U.S. Senate, Washington, DC.
Dear Chairman Dorgan: Thank you for holding the hearing on July 10
regarding water resource management on the Missouri River. I appreciate
the opportunity to submit written testimony for the record.
During the hearing, I noticed that concerns were raised related to
hydropower production on the Missouri River and its relationship to
potential flow changes on the river. The previous day, July 9, American
Rivers and Environmental Defense released a report by energy economist
David Marcus on this very subject.* I think this report will be most
useful to you as you further consider these matters, and I submit it
now for official entry into the hearing record in addition to my
previous written testimony.
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* The report has been retained in subcommittee files.
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If you have any questions, do not hesitate to contact me by phone
at 402-477-7910 or by e-mail at [email protected]. Thank you for your
consideration.
Sincerely,
Chad Smith,
Director, Nebraska Field Office.
______
Crow Creek Sioux Tribe,
Fort Thompson, SD, July 22, 2002.
Hon. Byron Dorgan,
U.S. Senate, Committee on Energy and Natural Resources, Subcommittee on
Water and Power, Dirksen Senate Office Building, Washington,
DC.
Attention: Melanie Shaker
Re: Testimony for Record on July 10, 2002 Hearing on the Army Corps of
Engineers Missouri River Master Water Control Manual
Dear Senator Dorgan: I serve as Chairman of the Crow Creek Sioux
Tribe. I respectfully submit this letter as the Tribe's Testimony for
the July 10, 2002 Water and Power Subcommittee Hearing on the Army
Corps of Engineers Missouri River Master Water Control Manual. I
appreciate the inclusion of my Testimony in the written record for this
hearing.
The Crow Creek Reservation is comprised of approximately 240,000
acres of rolling farm land and pasture along the Missouri River, in
central South Dakota. The Missouri dominates the Reservation landscape.
The impact of the Missouri River Basin Pick-Sloan Program on the
Crow Creek Indian Reservation has been devastating. Two Pick-Sloan
dams, Fort Randall and Big Bend, inundated the Reservation's
bottomlands. The Corps of Engineers began construction of the Fort
Randall dam and reservoir in 1946.
Twelve years later, the Congress enacted Public Law 85-916 (72
Stat. 1766, September 2, 1958), authorizing payment for the ``Tribal
land taken for the project. The Tribe lost 9,154 acres of rich
bottomland, over one-third of which was forested. Eighty-four families,
constituting 34 percent of the Tribal membership, were relocated
against their wishes. The project flooded Fort Thompson, the
Reservation's largest community, and the BIA relocated the agency
headquarters to Pierre, South Dakota, thirty miles from the
Reservation. Likewise, the Indian Health Service hospital was moved
twenty miles south to Chamberlain. The resources of the bottomlands,
and the subsistence economy based on those resources, were gone
forever. The relocated families received the nominal payments
authorized under P.L. 85-916 four years after the relocation.
In September, 1959, the Corps began work on the Big Bend project.
In 1962, the Congress enacted Public Law 87-735 (76 Stat. 704),
providing for the purchase of 6,179 acres of remaining bottomland.
Twenty-seven more families were relocated.
Thus, the federal government took from our Tribe over 15,000 acres
of land from our Tribe, for the site of these projects. This land was
valuable Missouri River bottomlands. They had the most fertile soils
and valuable timber on the Reservation. Over the loss of land and
natural resources and the relocation of our Tribal communities in the
late 1950's and early 1960's had a devastating effect on the Crow Creek
Sioux Tribe.
On-going COE operations at the Missouri River dams under the Master
Water Control Manual substantially affect the Crow Creek Indian
Reservation. Our cultural resources get unearthed and destroyed by wave
action from fluctuations in the water level of Lake Oahe. COE
operations impact Missouri River water levels and water quality on the
Reservation. During periods of drought, water quality deteriorates, due
to low water levels. The intentional flushing of sediment from below
Oahe Dam exacerbates the documented water quality problems facing Lake
Sharpe on our Reservation. In addition, peak power flows at Oahe Dam
intensifies the erosion of Tribal land and causes property damage to
valuable Tribal farmland, and the unearthing of artifacts and cultural
objects.
These sacred cultural resources are afforded protection under
numerous federal laws, such the Native American Graves Protection and
Repatriation Act (NAGPRA) 25 U.S.C. Sec. 3001, National Historic
Preservation Act (NHPA), 16 U.S.C. Sec. 470a and the Archaeological
Resources Protection Act (ARPA) 16 U.S.C. Sec. 470aa. The Corps of
Engineers activities under the Master Water Control Manual are ``agency
actions'' for the purpose of NAGPRA, and accordingly, this statute
forbids the Corps from operating the dams in a manner that unearths and
destroys them. Yankton Sioux Tribe v. Army Corps of Engineers. 83 F.
Supp. 2d 1047 (D.S.D. 2000).
Yet the Corps continues to operate the dams in a manner that
results in the exposure and destruction of cultural resources. There is
nothing in the Revised Draft Environmental Impact Statement to remedy
this. Consequently, the RDEIS results in serious violations of federal
historic preservation law.
The Corps of Engineers has failed to consult with our Tribe, on the
detrimental impact of the Corps' Missouri River operations, on our
Reservation. This is required in Executive Order 13175. Both the
National Advisory Council on Historic Preservation and the
Environmental Protection Agency have questioned the lack of
consultation on the part of the Corps of Engineers with the Tribes, and
the impacts of COE operations on our historic properties and
Reservation environment.
The Corps of Engineers estimates that its regulation of Missouri
River water flows produces National Economic Development (NED) benefits
to the U.S. of $1.8 billion. (RDEIS, Executive Summary, p. 14-18). The
NED benefits outlined by the Corps in the RDEIS were derived through a
computer model, in which the Corps traced the water flows for each year
it has operated the system, under the operational scheme for numerous
proposed management alternatives.
The Crow Creek Sioux and other Tribes possess substantial water
rights to the Missouri. However, Indian water rights were not
considered in this computer model used by the Corps. The impacts of
alternative on Native American cultural resources are not properly
provided in the model. There is no mention of the economic losses on
our Reservation, in the determination of economic development gains off
of the Reservation.
Instead of engaging in the analysis required under the National
Environmental Policy Act (NEPA), the Corps has delegated to the states
and the special interest groups they represent the task of allocating
water in drought years. There is unused water in the system that the
Federal government should not allocate for any other than Tribal uses,
but the Corps has washed its hands of its Trust responsibility to the
Tribes, and instead defers to water negotiations amongst the states. We
object to the higher level of consultation afforded to the Missouri
Basin states, than it afforded to our Tribe.
Under the National Environmental Policy Act, the Corps must compile
and analyze the history, socioeconomic conditions, cultural resources
and environmental baseline conditions of the affected Indian Tribes,
including the Crow Creek Sioux Tribe. The Environmental Impact
Statement should survey the impacts of Big Bend and Fort Randall dams
on plants and wildlife along the Missouri River. There must be
compliance with Section 106 of the National Historic Preservation Act
in the operation of Oahe, Big Bend and Fort Randall Dams.
Under the Executive Order 12868 on Environmental Justice, the Corps
must propose plans to mitigate the impact of its operations on the
Tribes, because of the disproportionate impact of its operations on
Native American communities. There is no question that mitigation of
the detrimental impacts of Pick-Sloan is required at Crow Creek. This
must be outlined in the Environmental Impact Statement.
The Revised Draft EIS Violates the National Environmental Policy
Act, National Historic Preservation Act, Executive Order 13175 on
Consultation with Indian Tribes and Executive Order No. 12898 on
Environmental Justice, and common sense. The Corps of Engineers has
proven that it shall violate the rights of our Tribe in its past and
current operations, and in its planning process for future operations.
I understand that the main issues surrounding the Master Manual
Review and Update involve upper basin recreation and downstream
navigation. We respect these legitimate interests.
However, the rights of the Tribes are Treaty rights. We also enjoy
rights under federal laws designed to protect our Reservation land and
our cultural heritage. These issues are important to the Indian people.
They have been ignored during the current debate between the lower
basin and upper basin states of the Missouri River. The Corps of
Engineers has made it clear that it shall ignore the rights of the
Indian Tribes, in the Master Manual Review and Update process. I hope
that the Water and Power Subcommittee considers appropriate legislation
to ensure that our water rights, Reservation lands and cultural
resources are protected from the bureaucratic malfeasance of the Corps
of Engineers.
Sincerely,
Duane Big Eagle,
Tribal Chairman.
______
National Waterways Alliance,
Washington, DC, September 1, 2000.
Hon. Christopher S. Bond,
Russell Senate Office Building, U.S. Senate, Washington, DC.
Dear Senator Bond: On September 5, 2000, the Senate is scheduled to
begin consideration of H.R. 4733, the Energy and Water Development
Appropriations Bill for FY 2001. We are writing to express our strong
opposition to any efforts to strike Section 103, which prohibits
implementation of a ``spring rise'' on a portion of the inland
navigation system.
A recent directive issued by the U.S. Fish and Wildlife Service to
implement a ``spring rise'' immediately on the Missouri River is a
reversal of water resource policy without appropriate public review,
independent scientific validation, Congressional debate or endorsement.
For decades, every Congress and Administration has endorsed a policy of
water resource development that was designed to protect communities
against natural disasters and serve efficient and environmentally
friendly river transportation, reliable low-cost hydropower and a
burgeoning recreation industry.
The ``spring rise'' demanded by the Fish and Wildlife Service is
based on the premise that we should ``replicate the natural
hydrograph'' that was responsible for devastating and deadly floods as
well as summertime droughts and even ``dust bowls.'' For decades, we
have worked to mitigate the negative implications of the ``natural
hydrograph'' with multiple-purpose water resources management programs,
including reservoirs storing excess flood and snow-melt waters in the
spring and releasing those waters in low-flow periods. These efforts
have protected communities from floods, enabled the safe and efficient
movement of a large percentage of the Nation's intercity freight by a
mode that results in cleaner air, safer streets, and a higher quality
of life and also provided hundreds of thousands of family-wage jobs in
interior regions.
Retaining Section 103 will allow National Environmental Policy Act
(NEPA) compliance and provide time for Congress to adequately consider
whether reversing proven water resources policy makes sense and whether
a ``spring rise'' is scientifically supported. We urge you to keep the
existing language in H.R. 4733 and oppose any efforts to strike or
unnecessarily amend it.
Sincerely,
National Waterways Alliance.
______
Statement of Bill Graves, Governor, State of Kansas
I appreciate the opportunity to provide written testimony to the
Committee on behalf of the State of Kansas. The Missouri River is
certainly one of the nation's most important waters from many
standpoints. It is rich in history from the Lewis and Clark expedition
to the present and provides invaluable water for many beneficial uses.
However, the focus of our comments at this time is on the Kansas
River rather than on the main stem Missouri. The Kansas River and
associated reservoirs is a unique and valuable system in its own right.
The Kansas River system provides drinking water to one third of the
population of Kansas in addition to the industrial users and power
plants that rely on the water stored in the reservoirs as their sole
source of water. In addition we have our own important natural resource
and listed species issues. Water-based recreation, fishing and hunting
are important to our economy and a quality of life issue for our
citizens.
My concern is the Kansas River system is currently being used to
supplement navigation flows on the Missouri River through water
releases from Milford, Tuttle Creek and Perry reservoirs. By this fall
the Corps of Engineers intends to draw down these reservoirs as much as
six feet below conservation, or normal pool level, to provide
navigation flows. The risk to our water supplies in a time of drought
impacts to fish and wildlife management and water-based recreation from
this action are real.
While I understand the difficulty of managing a river system for a
variety of beneficial uses, I cannot support the Corps decision to use
the Kansas River reservoirs to provide navigation flows on the Missouri
Rivet at this time. My reason is very simple: I do not believe there is
any real benefit to navigation from these releases. Yes, there is
additional water in the Missouri River. But, State water engineers
believe the change in stage is only between one and two inches of depth
on the Missouri River. That is less than the waves on the water from a
moderate breeze.
For the past two years the State of Kansas has worked closely with
the Kansas City District of the Corps of Engineers to jointly study the
Kansas River basin to resolve this matter. While the State has
completed its work on this, the Corps of Engineers efforts are still
underway. We urge the Senate to direct the Corps of Engineers to cease
releases of water from all Kansas basin reservoirs for navigation
purposes at least until this study is completed.
Thank you for your consideration of our concerns.
______
Statement of Chad Smith, Director of American Rivers,
Nebraska Field Office
Mr. Chairman and members of the Subcommittee, thank you for the
opportunity to present testimony on management of the Missouri River. I
am Chad Smith, Director of the Nebraska Field Office for American
Rivers, a national conservation organization dedicated to protecting
and restoring the nation's rivers. American Rivers has over 30,000
members across the country, and works in partnership with over 4,000
river and conservation organizations. American Rivers, through its
Voyage of RecoverySM campaign, is working with dozens of
groups in the Missouri River Basin through the Missouri River Coalition
to: 1) establish a string of restored natural areas along the Missouri;
2) reform dam operations that sustain fish and wildlife and boost
recreation and tourism opportunities; and 3) revitalize riverfronts in
Missouri River communities to improve quality of life.
missouri river master manual revision
Like all rivers, the driving force behind the mighty Missouri River
was its ``natural hydrograph''--the seasonal rise and fall of water.
The Big Muddy experienced rising flows in the spring and early summer
from melting snow and rain. Higher flows were followed by declining
flows during the late summer and throughout the fall.
Today, these seasonal fluctuations are gone, replaced by stable
flows to support commercial barge traffic. Fish and wildlife, people,
and local communities have paid the price. Three native Missouri River
species are on the brink of extinction, and more than 50 native species
are listed by basin states or the federal government as rare,
threatened, or endangered. Recreation on the river is given little
priority in management decisions.
But the approaching bicentennial of Lewis and Clark's ``Voyage of
Discovery'' affords us the chance to help the Missouri again function
like a river. The U.S. Army Corps of Engineers (Corps) will soon decide
on a new plan for operating the Missouri's six big dams, which control
the river's flow. A change in operations now will help restore some of
the Missouri's important natural functions, making it a better place
for native species. And the Missouri River will become a recreation and
tourism destination.
In November 2000, the U.S. Fish and Wildlife Service (Service)
released its Final Biological Opinion on Missouri River dam operations.
The biological opinion concludes that the least tern, piping plover,
and pallid sturgeon are likely to go extinct on the Missouri River if
the Corps fails to change dam operations. The Service proposed several
elements of a ``reasonable and prudent alternative'' intended to assist
the recovery of those species. Key elements include:
Increasing flows from Gavins Point Dam and Fort Peck Dam in
the spring (``spring rise'') when water conditions permit, and
reducing Gavins Point Dam flows each summer (``split navigation
season'') to provide a semblance of the Missouri's natural rise
and fall of water levels.
Restoration of river and floodplain habitat.
Reservoir unbalancing.
Adaptive management of the river system.
Intensive biological monitoring.
The Service's recommended changes are designed to prevent the
extinction of three endangered and threatened species, but would also
benefit all native Missouri River fish and wildlife and consequently
the many outdoor enthusiasts wanting to enjoy the river.
According to river biologists, the recommended flow changes mimic
key elements of the Missouri's historic flow patterns, including higher
flows through mid-June and lower flows from mid-July through August.
The biologists note that this time frame encompasses the spawning
period of most Missouri River native fishes, including pallid sturgeon,
smallmouth bass, channel catfish, and paddlefish, and nest initiation
by interior least terns and piping plovers.
While the recommendations contained in the Service's biological
opinion do not constitute a ``silver bullet'' solution for Missouri
River fish and wildlife, they do represent the best science-based
options available for restoring the form and function of the Missouri
River. And they will significantly improve the ability of native
Missouri River species to survive. Flexibility in river management
options, as guided by biological monitoring through an adaptive
management approach, is also key to ensuring the best results for fish
and wildlife.
The time is now for change on the Missouri River. Some key facts
that support this statement:
The science is solid. In January, the National Academy of
Sciences released a three year study of the science along the
river, concluding that ``degradation of the Missouri River
ecosystem will continue unless the river's natural water flow
is significantly restored,'' and that restoring riparian
habitat in the absence of dam reforms will be insufficient to
halt the river's decline. In addition, natural resource
professionals working for all the states along the river have
concurred with the scientific foundation for the flow targets
set by the U.S. Fish and Wildlife Service.
The law is clear. Unless the Corps adopts the Service's flow
targets by the spring of 2003, the agency will be in violation
of the Endangered Species Act. The Corps has been on notice
since 1990 that its current plan jeopardizes the continued
existence of at least three native river species. Today's
decision sets the stage for further efforts in Congress to
create legal exemptions for politically influential economic
interests--and to undermine the fair and consistent
implementation of the law.
The economy will benefit. The National Academy of Sciences
concluded that Missouri River dam reforms will ``enhance the
valuable fishery resources . . . increase waterfowl populations
. . . increase the abundance of largemouth bass . . . attract
more anglers to the region . . . and result in marked increases
in user-days for recreational fishing, commercial fishing, and
hunting'' and therefore may be ``justifiable solely on the
grounds that it represents an economic improvement'' over
current dam operations. Already, these activities amount to $85
million industry each year, in sharp contrast to the barge
industry which has dwindled to less than $7 million each year.
The public supports change. Of the 55,000 comments submitted
to the agency on its dam guidance, 54,000 called on the Corps
to restore more natural flows to the Missouri. Since January,
eight Missouri River basin newspapers have editorialized
numerous times in favor of restoring more natural flows to the
Missouri. Six of the eight governors in the Missouri River
basin have formally recommended experimenting with flow changes
to restore the river.
Thus, we urge the Corps to immediately comply with federal law by
ending dam operations that jeopardize the existence of federally
endangered and threatened species and by implementing dam operations
that will lead to the recovery of these species. In particular, we urge
the Corps to immediately implement the alternative identified as
``GP2021'' (the so-called ``Flexible Flow'' alternative), as this is
the only alternative subjected to detailed analysis by the Corps in the
RDEIS that fully captures all the elements of the Reasonable and
Prudent Alternative (RPA) recommended by the Service in the Final
Biological Opinion on Missouri River dam operations.
Specfically, the Corps should gradually increase releases from
Gavins Point Dam to 17,500 cubic feet per second (cfs) over full
service navigation levels for a maximum of 30 days between May 1 and
June 15 once every three years. The Corps should also implement an
annual summer low flow period on the lower river by gradually reducing
Gavins Point Dam releases down to 25,000 cfs between June 21 and July
15, reducing releases further to 21,000 cfs until August 15, then
gradually increasing releases back to 25,000 cfs between August 15 and
September 1. These are the minimum dam reform steps necessary to help
recover federally-listed species and help prevent the continued
degradation of the Missouri River ecosystem.
Almost 200 years ago, the explorers Lewis and Clark traveled up the
Missouri River, and their journals describe an abundance of fish and
wildlife in and along the river that is unimaginable today. The once
dynamic and meandering river has been subdued by dams and levees and
many of the species found by the explorers along the river are slowly
disappearing.
According to the Corps' own detailed analysis, moderate changes in
dam operations can be made that would improve the river's health and
boost local economies through increased recreation and tourism, while
protecting ``traditional'' uses of the river like hydropower,
navigation, floodplain farming, and flood control.
The Corps' ultimate decision, which will be ``green-lighted'' by
the White House, will be a clear indication of whether science and
economics will rule the day, giving recreation and fish and wildlife
interests equal treatment in river management, or whether a dwindling
barge industry on the lower river will retain its stranglehold on the
nation's longest and arguably most historic river.
Economic Issues
These long overdue dam reforms will not only avoid the extinction
of three listed species and reverse the decline of many other species
native to the Missouri but will also meet the long-term economic and
environmental needs of Missouri River communities.
As the Corps' RDEIS demonstrates:
GP2021 will create new opportunities for recreation and
economic development in riverside communities.
GP2021 supports Missouri River barge navigation in the
spring and fall, when more than 80 percent of farm-related is
shipped.
GP2021 will enhance Mississippi River barge navigation.
GP2021 will not increase the risk of flooding.;
GP2021 will provide benefits to production agriculture in
the Missouri River floodplain through enhanced groundwater
levels and improved drainage in the summer months.
Recreation
The Missouri's native fish and wildlife species are not only a
critical part of America's natural heritage, but are also the
foundation of a growing river-recreation industry. More than 4 million
people annually spend more than 10 million ``visitor days'' at
developed recreation sites along the Missouri River, generating at
least $84.7 million in annual economic benefits, according to the
RDEIS.\1\ Actual visitation and spending is actually much higher, but
the RDEIS fails to measure recreation at undeveloped sites,
underestimates spending on Missouri River recreation, excludes spending
on food and lodging, and uses an improper methodology that narrowly
links recreational use to river elevations.
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\1\ U.S. Army Corps of Engineers. 2001. Missouri River Water
Control Manual Review and Update: Revised Draft Environmental Impact
Statement. Northwestern Division. Portland, OR.
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Corps estimates of recreational use are based on visits to
developed recreation sites such as marinas and ignores recreation at
undeveloped sites, including bank fishing, sight-seeing, river
festivals, private hunting clubs, fishing tournaments, and commercial
boat tours. The Corps excludes the enormous economic benefits of the
upcoming Lewis and Clark Bicentennial, and the role a healthy river can
play in regional celebrations, including opportunities for hunting,
fishing, camping, and sight-seeing. Federal, state, and private
officials preparing for the bicentennial estimate that more than 10
million Americans will retrace the steps of Lewis and Clark between
2003 and 2006.
The Corps also underestimates the amount visitors spend when
utilizing the Missouri River by underestimating daily spending, and by
excluding spending on lodging and food. The Corps estimated more than a
decade ago that visitors spend $32 per day while visiting the Missouri,
but state estimates are significantly higher. A 1990 study of Missouri
River recreation in Montana concluded that per-day spending ranged
between $40 and $66. A similar survey of Missouri River recreational
use in North Dakota found that per-day spending ranged from $49 to as
much as $117 for out-of-state visitors. Studies also suggest that the
daily value of fishing is species-dependent: visitors spend more to
catch walleye than they spend to catch catfish.
States have concluded that Missouri River recreation generates
substantially more annual economic benefits than the Corps' analysis:
Missouri River recreation and tourism in South Dakota
generated $53.9 million in annual economic benefits in 1993,
according to state officials.
Missouri River recreation and tourism generated $165 million
in annual economic impacts in North Dakota, according to state
officials.
Use of the Missouri River in Nebraska generates as much as
$364.5 million in annual economic benefits, according to state
officials.
Recreational opportunities on the lower river would be greatly
increased. Exposed sandbars and shallower, slower water, coupled with
restored habitat, would make the lower Missouri River much more
inviting and accessible for fishing, camping, birding, recreational
boating, and other forms of recreation.
Lower summer flows also mean higher water levels in the
reservoirs--benefiting anglers, boaters, and recreation-dependent
businesses in the upper basin. And, releasing more water from Gavins
Point and other Missouri River dams in the spring and less in the
summer would improve the fisheries and the natural habitat of the free-
flowing river sections below the dams.
Recreation already generates at least $90 million in annual
economic benefits for the basin, but a restored Missouri River would
boost that figure significantly. Revitalizing the Missouri River would
provide additional outlets for recreation and tourism and would create
many new economic opportunities in places like Bismarck, North Dakota;
Yankton, South Dakota; Nebraska City, Nebraska; and Boonville,
Missouri.
Navigation
GP2021 will also support Missouri River navigation during the
spring and fall--when more than 80 percent of farm-related cargo is
shipped--and will enhance navigation on the Mississippi River.
Marginally reducing the meager amount of Missouri River barge traffic
will not impact highway and rail transportation costs. Even the Corps
concedes the marginal economic benefit of Missouri River barge
navigation--less than $7 million annually, according to the RDEIS--
although the National Academy of Sciences found that actual benefits
are closer to $3 million annually and that net benefits are eliminated
when flows reach 30,000 cfs.\2\
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\2\ National Research Council. 2002. The Missouri River Ecosystem:
Exploring the Prospects for Recovery. National Academy Press.
Washington, DC.
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By contrast, the RDEIS estimates that hydropower generates $741
million in annual economic benefits, water supply generates $610
million in annual economic benefits, and flood control generates $410
million in annual economic benefits. Nevertheless, the Corps has
consistently managed the Missouri's mainstem dams primarily to benefit
barge navigation--at the expense of every other economic and
environmental use of the Missouri. Even recreation produces at least 12
times as many economic benefits as navigation despite historic river
management that has decimated the river's flora and fauna and limited
access to boat ramps. Recreation between Sioux City and St. Louis alone
produces twice as many economic benefits as Missouri River barge
navigation, according to the RDEIS. Only 1.5 million tons of commercial
cargo was shipped annually on the Missouri during the 1990s, far less
than the 15 million tons predicted by the Missouri River Navigation
Commission in 1929 and just three-tenths of 1 percent of the grain
harvested each year in Nebraska, Iowa, Kansas, and Missouri.
Despite the insignificance of Missouri River navigation, GP2021
would provide sufficient flows for commercial navigation between April
1 and mid-June, and from early September through November. The Corps
estimates that under GP2021, barge navigation would continue to
generate $4.75 million in annual economic benefits. Less than 20
percent of farm-related cargo is shipped in July and August, according
to the Corps. In essence, the Missouri River already operates in a
``split navigation season'' format--fertilizer is moved upstream during
spring, and grain is shipped downstream in the fall, and the amount of
grain shipped downstream is fixed by the amount of fertilizer moved
upstream.\3\ The presence of empty fertilizer barges from spring hauls
is the only factor that makes shipping some corn and soybeans on the
river economically viable.\4\ There is no evidence presented in the
RDEIS that formal implementation of this informal custom would
jeopardize Missouri River navigation.
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\3\ Baumel, P. 1998. The Competitive Benefit of the Missouri River?
A Review of ``Rail Rates and the Availability of Barge Transportation:
The Missouri River Region''. Environmental Defense Fund. Washington,
DC.
\4\ Ibid.
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GP2021 would have no impact on highway and rail rates, and the
RDEIS does not reflect on the Corps' flawed 1994 competitive rate
study. Agricultural economists from Iowa State University, the
University of Nebraska, and Kansas State University concluded that the
competitive rate study is ``likely meaningless'' and ``suffer(s) from
several defects.'' 5,6 Low levels of Missouri River barge
traffic have no measurable impact on transportation rates in the
region, and the Corps has provided no evidence in the RDEIS that
suspending summer barge navigation would impact transportation rates or
threaten the long-term prospects of commercial navigation on the
Missouri.
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\5\ Ibid.
\6\ Babcock, M. and D. Anderson. 1999. An Evaluation of the U.S.
Army Corps of Engineers' Measurement of the Economic Benefits of
Missouri River Navigation. Environmental Defense Fund. Washington, DC.
---------------------------------------------------------------------------
GP2021 would also enhance Mississippi River barge navigation
between St. Louis and Cairo, a historic ``bottleneck'' that naturally
suffers from low fall water levels. Many factors contribute to ``lost
navigation efficiency,'' including shallow water forcing operators to
spread their cargo across more tows. The Corps estimates in the RDEIS
that ``lost navigation efficiency'' between St. Louis and Cairo
annually costs the barge industry $45.3 million.
Increasing the Missouri River's contributions to the Mississippi
River during the fall would allow barge operators to put heavier loads
on fewer barges and move through locks more quickly. Under the CWCP,
constant amounts of water are released for a small amount of barges on
the Missouri River for the entire 8-month navigation season. Thus,
little water is available to the Mississippi when that river needs it
most.
By contrast, reducing summer flows increases the water available
for fall flows into the Mississippi, which supports Mississippi River
navigation. GP2021 cuts Mississippi River congestion losses by more
than 16 percent--saving an estimated $7.3 million each year.
This savings for the Mississippi River barge industry is greater
than the annual economic benefit of the entire Missouri River barge
industry. In addition, Mississippi River barge traffic, unlike Missouri
River barge traffic, has an economic impact on truck and rail shipping
rates.
The tradeoff between Missouri River barge support and Mississippi
River barge support has long been known. Agricultural economists from
the basin continue to point out that particularly in droughts, managing
flows on the Missouri River more naturally--which better supports
Mississippi River navigation--could result in ``substantial benefits
for agriculture in (the form of) lower rail rates.'' \7\
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\7\ Ibid.
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Flooding and Interior Drainage
GP2021 will not increase the risk of flooding, and will provide
benefits to production agriculture in the Missouri River floodplain
through enhanced groundwater levels, in the spring and fall, and
improved drainage in the summer months due to lower flows in the
Missouri River.
According to the RDEIS, GP2021 will provide $407.7 million in
annual flood control benefits, or 98.9 percent of the benefits now
provided by the current water control plan.\8\ As the RDEIS states, the
impacts of GP2021 on overall flood control benefits are
``insignificant.'' \9\ The RDEIS fails to note that from a flood
control perspective, only lands located between the river and the
levees lining the Missouri River would be impacted by dam releases.
And, the RDEIS fails to note that the Reasonable and Prudent
Alternative proposed in the Service's Final Biological Opinion would
only be implemented, on average, once in every three years. The Final
Biological Opinion provides the Corps ample flexibility to postpone
spring dam releases if weather conditions would increase the risk of
flooding.\10\
---------------------------------------------------------------------------
\8\ U.S. Army Corps of Engineers. 2001. Missouri River Water
Control Manual Review and Update, Revised Draft Environmental Impact
Statement. Northwestern Division. Portland, OR.
\9\ Ibid.
\10\ U.S. Fish and Wildlife Service. 2000. Final Biological Opinion
on the Operation of the Missouri River Main Stem Reservoir System,
Operation and Maintenance of the Missouri River Bank Stabilization and
Navigation Project, and Operation of the Kansas Reservoir System.
Regions 6 and 3. Denver, CO and Ft. Snelling, MN.
---------------------------------------------------------------------------
The RDEIS incorrectly suggests that GP2021 will have only negative
impacts on the drainage of most floodplain farmland and groundwater
levels. Both the RDEIS summary and main report fail to highlight the
potential benefits of elevated groundwater levels in the spring and
fall for crop growth, and fail to highlight the benefits of low summer
flows on the drainage of floodplain farmland. The RDEIS instead focuses
on the tiny fraction of farmland negatively impacted by higher
groundwater levels in the spring and fall, and fails to note that
farmland impacted by higher groundwater levels is typically farmed
sloughs, chutes, and oxbow lakes that suffer from poor drainage
regardless of river conditions. Less than 200 acres of the six levee
districts analyzed by the Corps would be negatively impacted by higher
spring and fall releases, increasing flood damages by approximately
$650,000 a year.\11\ By contrast, the potential benefits of higher
groundwater levels in the spring and fall and improved drainage
conditions in the summer on a much greater number of farmland acres in
the Missouri River floodplain are not calculated. The Corps' failure to
document these benefits makes this analysis irrelevant and violates the
purposes of the National Environmental Policy Act (NEPA).
---------------------------------------------------------------------------
\11\ This number is inflated by the Corps' analysis, which can not
segregate groundwater impacts and interior drainage impacts.
---------------------------------------------------------------------------
The RDEIS also fails to consider alternatives that will offset the
drainage impacts on the acres of land modestly impacted by GP2021, such
as the installation of pumps, the acquisition of easements, or
conversion to water-tolerant crops like trees and hay production. In
particular, the RDEIS ignores the high likelihood that floodplain
farmland impacted by dam reforms would be acquired from willing sellers
through programs like the Corps' Missouri River Fish and Wildlife
Mitigation Project. In fact, the Corps has not determined whether any
of the land potentially impacted by higher spring and fall releases has
already been acquired, leased, or converted to other uses. Finally, the
Corps has not explored whether increasing dam releases after the
harvest of floodplain crops can be accomplished without increasing the
likelihood of ice damage. Again, the Corps' failure to assess these
alternatives and to adequately forecast future conditions renders this
analysis irrelevant and is a violation of the purposes of NEPA.
Hydropower
GP2021 provides a 2% increase in the total economic hydropower
benefits over the CWCP, according to the RDEIS. GP2021 also increases
marketable capacity for the Western Area Power Administration (WAPA) in
both the summer and winter seasons. Thus, in general, restoring more
natural flows to the Missouri River will result in an overall positive
impact on the production of hydropower on the Missouri River system.
This conclusion was found to be accurate in a recent report on Missouri
River hydropower by noted hydropower economist David Marcus.\12\
---------------------------------------------------------------------------
\12\ Marcus, D. 2002. Energy impacts of re-operating the Missouri
River dams. American Rivers/Environmental Defense. Berkeley, CA.
---------------------------------------------------------------------------
However, the RDEIS goes on to suggest that lower summer flows might
result in a loss of firmpower revenue on the Missouri River system of
up to $29.7 million is inaccurate. Those numbers are based on an
analysis completed by WAPA, and are based on energy prices from January
2001, when energy prices were at an all-time record high due to the
California energy crisis.\13\ Using more typical current prices from
June 2002, the prediction of revenue loss falls from roughly $30
million to around $3 million for the GP2021 and GP 1521
alternatives.\14\
---------------------------------------------------------------------------
\13\ Ibid.
\14\ Ibid.
---------------------------------------------------------------------------
Even for customers who buy all of their electricity from WAPA,
GP2021 would only increase costs from 1.7 cents per kwh to 1.74 cents,
or about 2 percent.\15\ Customers buying only 10 percent of their
electricity from WAPA might experience a 0.1 percent increase.\16\
---------------------------------------------------------------------------
\15\ Ibid.
\16\ Ibid.
---------------------------------------------------------------------------
The price of retail electricity also includes the cost of
transmission, distribution, marketing, metering, and billing, none of
which would be affected by Missouri River flow changes. This means that
retail price increases due to flow changes would be even less that for
WAPA firm power customers. Without factoring in the positive impacts of
increased capacity, the average rate increase for the region if GP2021
was implemented would be about 1.5 cents per month for a typical
residential customer.\17\
---------------------------------------------------------------------------
\17\ Ibid.
---------------------------------------------------------------------------
The original WAPA analysis ignores the value of increased
marketable capacity on the Missouri River system that would come from
restoring more natural flows to the river. If this were factored in, it
is likely that flow changes could result in positive economic impacts
of $8 million to $16 million annually.\18\ Also, the RDEIS fails to
discuss the fact that under an alternative like GP2021, the loss of
hydropower during extreme drought and flood events is reduced as
compared to the CWCP. Not factoring this ``insurance value'' during
extreme events into the analysis likely contributes to an
overestimation of the negative impacts of implementing GP2021.
---------------------------------------------------------------------------
\18\ Ibid.
---------------------------------------------------------------------------
The estimated revenue loss resulting from the implementation of
GP2021 can also be mitigated by opportunities to increase summer
revenues at other Missouri River projects such as Ft. Peck Dam. For
example, flat releases out of Ft. Peck during the summer of 2001 were
marketed to offset power shortages due to drought in the Columbia
Basin, generating substantial revenue for WAPA. This occurred while
average releases during the summer of 2001 out of Gavins Point Dam were
23,000 cfs. This type of intra-system activity can be used to help
offset any potential negative impacts of restoring more natural flows
to the Missouri.
Another issue related to power production is the presence of
generating plants along the lower river, both nuclear and coal-fired.
In both cases, the generating plants have maximum ambient temperature
requirements for river water intake, as well as maximum temperature
requirements for discharge of thermally-heated water back into the
Missouri River. Power plant representatives have indicated that low
summer flows are not necessarily an operational problem, but that high
summer flows, which are a byproduct of current operations, create more
of a problem than low flows.
Nevertheless, power plant representatives do voice a concern with
low summer flows relating to the constraints of current National
Pollution Discharge Elimination System permits. To avoid violating the
requirements of these Clean Water Act permits, generating plants along
the river must avoid releasing water back into the river at too high of
a temperature. In the RDEIS, the Corps asserted that Gp1521 and GP2021
have the ``potential'' to limit the output of downstream powerplants by
an average of up to 278 Mw in July.
Further study shows this estimate is not accurate. According to the
Corps, 9 percent of the alleged impact is upstream of Gavins Point Dam,
which would in reality not be affected by low summer flows out of
Gavins Point Dam. More importantly, the Corps apparently ignored the
actual permits for the downstream power plants.\19\ A vast majority of
the impacts reported in the RDEIS stem from operations at the Neal
power station in Iowa. A review of the permit for this power station
shows that discharges would not violate heat limits even if river flows
reached 10,500 cfs, much lower than the 21,000 cfs flows required by
GP2021.\20\
---------------------------------------------------------------------------
\19\ Ibid.
\20\ Ibid.
---------------------------------------------------------------------------
Research done by the Nebraska Game and Parks Commission, the
University of Nebraska, and others in the 1970s determined that
existing thermal discharges in the summer were not having significant
biological impact on the Missouri River.\21\ This suggests that even if
low flows did result in some thermal impacts, current temperature
limits on return water could potentially be modified, or permit
variances could be granted, allowing power plants to operate fully
without causing significant negative impacts on the ecology of the
Missouri River. However, this situation warrants further analysis
through updated monitoring in an adaptive management process on the
Missouri. The RDEIS also fails to explore other means of dealing with
thermally-heated return water, like pumping this water first into
created wetlands where temperature problems could be abated.
---------------------------------------------------------------------------
\21\ Hesse, L., G. Hergenrader, H. Lewis, S. Reetz, and A.
Schlesinger. 1982. The Middle Missouri River: A Collection of Papers on
the Biology with Special Reference to Power Station Effects. The
Missouri River Study Group. Norfolk, NE.
---------------------------------------------------------------------------
Environmental Issues
High spring flows provide spawning cues for manly fish species
found in the Missouri, including the endangered pallid sturgeon. These
high flows also build new sandbars on the river and scour vegetation
from existing sandbars. High flows also wash vegetation and other
organic matter into the Missouri, forming much of the river's food
base. Low flows are also critical for fish species like sturgeon.
Recently spawned fish are poor swimmers and are easily carried by water
currents. Many larval fish depend on easy access to shallow, slower-
flowing areas where they can feed and avoid predators. And, low flows
expose the sandbars created and cleaned during the high-flow period to
make them useable as nesting habitat for birds like the endangered
interior least tern and the threatened piping plover.
Current Missouri River dam operations fail in two ways: 1) by
failing to provide sufficiently high spring releases to create adequate
sandbar habitat or to serve as a reproductive cue for native fish
species, and 2) by failing to provide sufficiently low summer flows to
expose sandbars and to provide suitable shallow-water habitat for
larval fish species, including larval pallid sturgeon.
As the Final Biological Opinion notes, the availability of habitat
and the health of Missouri River fish and wildlife populations are
shaped by the timing, variability, and amplitude of the natural
hydrograph, and dam releases continue to serve as a master
variable.\22\ The annual rise and fall of the Missouri River is
essential to the health of large floodplain river ecosystems like the
Missouri, according to the National Academy of Sciences' recent report,
The Missouri River Ecosystem: Exploring the Prospects for Recovery. The
river's ``flood pulse'' adds organic matter and nutrients to the river;
fuels the production of floodplain plants, and resets plants
succession; and provides a reproductive cue for many species adapted to
the river's fluctuations, according to the Academy report. ``Fish
spawning, insect emergence, and seed dispersal are commonly triggered
by rising waters,'' the Academy wrote.\23\
---------------------------------------------------------------------------
\22\ U.S. Fish and Wildlife Service. 2000. Final Biological Opinion
on the Operation of the Missouri River Main Stem Reservoir System,
Operation and Maintenance of the Missouri River Bank Stabilization and
Navigation Project, and Operation of the Kansas Reservoir System.
Regions 6 and 3. Denver, CO and Ft. Snelling, MN.
\23\ National Research Council. 2002. The Missouri River Ecosystem:
Exploring the Prospects for Recovery. National Academy Press.
Washington, DC.
---------------------------------------------------------------------------
Pallid Sturgeon
GP2021 would improve river conditions for the Missouri's native
fish species, preventing the extinction of the pallid sturgeon and
reversing the decline of many other native fish species.
In particular, GP2021 would provide a ``spawning cue''
approximately once in every three years, according to the RDEIS. By
contrast, the current water control plan provides a spawning cue less
than once in every ten years.
Sturgeon reproduction is closely tied to rising flows in the late
spring and early summer--a pattern that has been eliminated to provide
steady flows for barge traffic. Sturgeon were once plentiful in the
Missouri River, growing to lengths greater than six feet, weighing more
than 80 pounds, and supporting a robust commercial fishing industry.
The have occupied the Mississippi and Missouri River basins for more
than 300 million years, according to some estimates. But, the
Missouri's sturgeon population has been nearly driven into extinction
in less than 50 years.
Since 1990, there has been no documented evidence of natural
recruitment of pallid sturgeon on the Missouri River, meaning no new
young sturgeon are surviving to become members of the reproductive
adult population. Most of the sturgeon remaining in the Missouri are
mature adults and may only have a few more opportunities to spawn.
Because sturgeon only breed occasionally and only under optimal
conditions, the chances of natural reproduction decline each year that
dam reforms are delayed and the reproductive cues provided by rising
spring flows are postponed. The Missouri's few remaining female
sturgeon may only produce eggs during one or two more spawning events.
Ongoing delays by the Corps steadily reduce the likelihood that the
Missouri's few remaining sturgeon will successfully reproduce. Current
dam operations provide suitable spawning conditions only once every 10
to 11 years above Kansas City and only once every 5 to 6 years below
Kansas City. Although the fish have long life spans, they have
relatively low capacity for population increases.
The absence of low flows is also a serious threat to the existence
of the pallid sturgeon. Once spawned, fish larvae drift in search of
suitable shallow water habitat. In the past, roughly 100 acres of
shallow-water habitat was available in each river mile during the
summer months, providing habitat for larval sturgeon. Today, about 1
acre is available in each river mile. Reducing summer dam releases, as
has been proposed by the Service, would increase shallow water habitat
to about 8 acres per mile, providing critical habitat for larval pallid
sturgeon.
A common claim made by advocates of status quo Missouri River dam
operations is that even if dam release are modified to provide higher
flows in the spring to serve as a spawning cue, pallid sturgeon will
not reproduce because of the lack of appropriate gravel substrates for
spawning in areas such as the National Recreational River stretch below
Gavins Point Dam or the lower river. First, there is no documented,
definitive scientific information that supports the notion that pallid
sturgeon spawn exclusively on gravel substrates. Second, exhaustive
research done through the river-wide Benthic Fish Study completed in
2001, Population Structure and Habitat Use of Benthic Fishes Along the
Missouri and Lower Yellowstone Rivers, shows that there is indeed
gravel substrate below both Ft. Peck Dam and Gavins Point Dam, which
are priority reaches for the pallid sturgeon. The Benthic Fish Study
shows that in fact, there is a greater abundance of gravel in the
Missouri River below Gavins Point Dam (7.1%) than below Ft. Peck Dam
(5.1 and that there is a comparable amount of gravel in the lower river
below Sioux City (5.0%).\24\
---------------------------------------------------------------------------
\24\ Galat, D., M. Wildhaber, and D. Dieterman. 2001. Spatial
Patterns of Physical Habitat: Volume 2: Population Structure and
Habitat Use of Benthic Fishes Along the Missouri and Lower Yellowstone
Rivers.
---------------------------------------------------------------------------
In addition to providing sturgeon a chance for survival, GP2021
would also reverse the decline of many of other native fish species.
Paddlefish, blue sucker, shortnose gar, and a variety of chubs and
shiners considered rare by state officials would benefit from
restoration of some semblance of the river's natural hydrograph. GP2021
would also provide significantly greater benefits to Missouri
sportfishing. For example, GP2021 would significantly improve reservoir
fish production, and would greatly improve sportfishing options on the
lower river.
Interior Least Terns and Piping Plovers
GP2021 is necessary to avoid the extinction of the endangered
interior least tern and the threatened piping plover. In the Final
Biological Opinion, the Service concluded that current dam operations
``jeopardize the continued existence of the endangered interior least
tern and threatened piping plover because (dam) operations eliminate
essential nesting habitat.'' \25\ This conclusion was made previously
by the Service in both a 1990 Final Biological Opinion and a 1994 Draft
Biological Opinion.
---------------------------------------------------------------------------
\25\ U.S. Fish and Wildlife Service. 2000. Final Biological Opinion
on the Operation of the Missouri River Main Stem Reservoir System,
Operation and Maintenance of the Missouri River Bank Stabilization and
Navigation Project, and Operation of the Kansas Reservoir System.
Regions 6 and 3. Denver, CO and Ft. Snelling, MN.
---------------------------------------------------------------------------
Sandbars free of vegetation provide critical nesting habitat for
least terns and piping plovers, and the reproductive success and
failure of these rare shorebirds is directly correlated to the
abundance or absence of sandbar habitat. The amount and availability of
sandbar habitat in the summer is directly linked to high spring dam
releases and low summer dam releases. Sandbars are created when dam
releases are increased in the spring, scouring the river's bottom and
banks. As dam releases decline during the summer, the sandbars remain
exposed, and the shallow water near sandbars provides important feeding
habitat for nesting birds and chicks.
The Service listed the interior population of the least tern as an
endangered species in 1985. Least terns were once a common species
along the Missouri River. During their exploration of the Missouri
River, Lewis and Clark found the birds nesting frequently, particularly
along the lower river. Today, terns breed primarily on the relatively
free-flowing river stretches that remain. According to Corps data on
terns compiled since 1986, over 90% of terns on the Missouri River nest
on riverine sandbars.
Interior least tern reproduction is closely tied to the spring rise
and subsequent lowering of summer flows that used to characterize the
Missouri River. Least terns prefer to nest on sandbar islands that are
largely free of vegetation that can hide predators. High spring flows
are necessary to build new sandbars to scour existing sandbars of
vegetation. Because least terns nest close to water, rising water
levels after nest initiation will destroy the nests. The Service has
consistently found that existing Missouri River water management has
resulted in the loss of thousands of acres of sandbar habitat,
significant vegetative encroachment on remaining sandbars, and direct
flooding of tern nests in a manner that kills eggs and chicks.
Least terns also depend on productive foraging habitats, both
immediately prior to breeding and within a short distance of the nest.
Good foraging habitat is critical to the energy reserves needed for
successful nesting. Sloughs, side channels, tributaries, and other
shallow water habitats ``produce the fish and benthic invertebrates
that terns and plovers, respectively, depend on for food.'' \26\ Fish
and invertebrate reproduction also depends on a more natural river flow
pattern.
---------------------------------------------------------------------------
\26\ Ibid.
---------------------------------------------------------------------------
Like the least tern, the piping plover received federal protection
in 1985. Naturalists once found the piping plover common in the central
United States. Since that time, the population has decreased over most
of its range, and the plover has vanished as a nesting species in many
areas. Because a critical source of the plover's ongoing decline is the
loss of essential habitat, the failure to protect and restore nesting
habitat will contribute the species' extinction.
Piping plover nesting behavior is similar to the least tern. Like
the tern, the plover relies on sparsely vegetated sandbars and nests in
virtually the same areas as the tern. The impacts of current Missouri
River dam operations on piping plovers are therefore largely identical
to those identified for the least tern. Current operations of the
Missouri River system have destroyed much of the piping plover's
essential nesting habitat. According to the Service, these losses ``are
significant and threaten the survival and recovery of the plover.''
\27\
---------------------------------------------------------------------------
\27\ Ibid.
---------------------------------------------------------------------------
In the early 1990s, the Service established reproductive goals
necessary to restore stable populations of terns and plovers on the
Missouri River system. Recovery fledge ratios of 0.7 for terns and 1.44
for plovers were established to provide guidance on the status of the
two birds on the Missouri River. Prior to 1998, the Corps consistently
failed to meet these reproductive goals. Between 1986 and 1999, for
example, the average fledge ratio (the number of chicks fledged per
adult pair) for the least tern was 0.65 and for the piping plover was
0.80. Nest success for terns during that same time was only 43.3
percent and was only 43.6 percent for plovers.
Unusually high dam releases in 1997 established the clear
connection between the presence of clean sandbars and successful tern
and plover reproduction. Until dam releases were increased and adequate
sandbar habitat created, the Corps had never met legally-mandated
reproductive goals for the least tern and piping plover. During 1997,
the Missouri River system experienced record runoff, resulting in
sharply higher flows on the river at critical periods. The following
summer (1998), more normal flows revealed a dramatic increase in the
availability of clean, high-elevation sandbars in some of the river's
more natural segments like the National Recreational River stretch
below Gavins Point Dam for nesting by terns and plovers. That summer,
for the first time on record, both the interior least tern and the
piping plover met their recovery fledge ratios. Many of those sandbars
have persisted on the river's more natural segments, and as a result,
terns have met their recovery fledge ratio every year since, and
plovers have met their recovery fledge ratio two out of four years.
However, the sandbars created by the high runoff of 1997 are
continually eroding and being covered by vegetation. Although the terns
and plovers have continued to meet their recovery fledge ratios, the
numbers are slowly declining as the sandbars disappear or become
unusable. For example, the least tern fledge ratio declined from 1.73
in 1998 to 1.06 in 2001, and the plover fledge ratio declined over the
same period from 1.61 to 1.38.\28\ With reproductive success declining,
and since the CWCP does not provide rising flows in the spring to build
and scour sandbars or lower flows in the summer to expose sandbars, the
Corps will soon once again fail to meet the required reproductive goals
for both birds unless dam releases are increased and new sandbars
established.
---------------------------------------------------------------------------
\28\ U.S. Army Corps of Engineers. 2001. Results of Monitoring of
Interior Least Tern and Piping Plover Nesting on the Missouri River
system, 1986-2001. Omaha District. Yankton, SD.
---------------------------------------------------------------------------
The GP2021 alternative increases tern and plover nesting habitat on
the Missouri River by 74% over the CWCP, according to the RDEIS. This
is the largest increase in tern and plover habitat among all of the
modeled alternatives in the RDEIS. In particular, this alternative
includes increased habitat below Garrison, Ft. Randall, and Gavins
Point Dams, which have been identified by river biologists as the
priority reaches for terns and plovers on the Missouri River.
General Considerations
The Corps must immediately implement dam reforms to avoid the
extinction of three federally protected species and to reverse the
decline of more than 70 other species native to the Missouri River. The
Final Biological Opinion anticipates immediate implementation of dam
reforms. The Opinion states on p. 243 that the Corps should ``implement
components of recommended flows (e.g. spring rise only, summer low flow
only, modified rise, or low flow) as quickly as possible.'' And the
recent National Academy of Sciences report on Missouri River science
calls for ``decisive and immediate management actions'' to restore the
river's pattern of high and low flows.
Despite this scientific consensus, the Corps continues to delay dam
reforms despite ongoing violations of the Endangered Species Act and
overwhelming evidence of the economic benefits of dam reforms for
riverside communities. As the Service noted on p. 234 in the Final
Biological Opinion, ``the primary elements necessary to avoid jeopardy
have not substantially changed since they were first outlined in the
1990 biological opinion and later refined further in the 1994 Draft
Biological Opinion.''
Unfortunately, this pattern of delay by the Corps has a long
history:
The Corps consistently refused to enter into formal
consultation with the U.S. Fish and Wildlife Service to address
the needs of the pallid sturgeon.
The Corps failed to include alternatives in a 1994 EIS and a
1998 EIS that adequately addressed the needs of endangered
species.
The Corps proposed dam operations in 1994 and 2000 that
would not comply with the ESA.
The Corps consistently delayed completion of the Master
Manual Review.
The Corps refused to implement interim conservation measures
to recover listed species, including habitat restoration and
modest dam reforms.
The Corps announced in June of this year that they were
forcing the Fish and Wildlife Service back into consultation on
endangered species issues, and that final decisions on a
revised Master Manual would be ``indefinitely delayed.''
The Corps has a legal duty to immediately implement dam reforms.
Congress enacted the Endangered Species Act to provide a means
``whereby the ecosystems upon which endangered and threatened species
depend may be conserved.'' Section 9 of the ESA makes it illegal for
the Corps to ``take'' protected species, and the term ``take'' is
broadly defined to include actions which ``harm'' or ``harass'' the
species and their habitat, including habitat impacts that significantly
impair essential behavior, including breeding, feeding, and sheltering.
Section 7 of the ESA requires that federal agencies ensure that
agency actions are not likely to jeopardize the continued existence of
any listed species; that is, not reasonably expected to reduce
appreciably the likelihood of both the survival and recovery of a
listed species by reducing the reproduction, numbers, and distributions
of that species. Section 7 also requires the Service to consult with
the Corps and to suggest reasonable and prudent alternatives that, if
implemented, would prevent actions likely to jeopardize the continued
existence of the species.
The Corps has ample flexibility to implement the Reasonable and
Prudent Alternatives proposed in the Final Biological Opinion. In fact,
according to the Congressional Research Service, there is ``no
statutory mandate for any particular flows, levels of navigation depth,
or for length of season of operations, etc. in the principal
legislative authorizations.'' \29\ Indeed, Section 1(b) of the Flood
Control Act of 1944 suggests that Congress did not intend for
navigation to be conducted in a way that impairs other project
purposes, and the 1958 Fish and Wildlife Coordination Act ensures that
fish and wildlife (an authorized project purpose) must ``receive equal
consideration with other project purposes.'' \30\ Thus, the Corps has
tremendous discretion in how it manages Missouri River flows and
navigation seasons, and this management must be carried out in a way
that gives equal weight to all the authorized project purposes of the
Missouri River system, including fish and wildlife and recreation.
---------------------------------------------------------------------------
\29\ Congressional Research Service. 2000. Duties of the Army Corps
of Engineers Regarding Missouri River Flows and the Endangered Species
Act. Washington, DC.
\30\ Ibid.
---------------------------------------------------------------------------
The Corps has not identified other alternatives that would lead to
the recovery of listed species and reverse the decline of the
Missouri's other troubled wildlife. In particular, expansion of the
Missouri River Fish and Wildlife Mitigation Project, or other measures
that restore habitat, are not by themselves measures that avoid
jeopardy. In light of the historic destruction of Missouri River
habitat by the Corps,\31\ we support proposals to accelerate the
restoration of floodplain and aquatic habitat, including the expansion
of the Missouri River Fish and Wildlife Mitigation Project. We urge the
Corps to quickly expand the Mitigation Project, and to expand the
project's focus on aquatic habitat restoration. However, habitat
restoration alone will not meet the Corps' legal duties under the ESA.
The National Academy of Sciences concluded that current habitat
restoration efforts on the river are ``insufficient to noticeably
recover ecological communities and fundamental physical processes in
the Missouri River ecosystem.\32\ Further, the Academy went on to
conclude the following:
---------------------------------------------------------------------------
\31\ The Corps' channelization of the Missouri eliminated nearly
all of the river's sloughs, side channels, and sandbars, including more
than 90 percent of the Missouri's islands and adjacent wetlands and 97
percent of the Missouri's sandbars between Sioux City and St. Louis.
Corps channelization cut off most of the lower Missouri from the
river's floodplain, contributed to an 80 percent decline in the
vegetation and insects available to aquatic life, and helped reduce
suspended sediment loads by more than two-thirds.
\32\ National Research Council. 2002. The Missouri River Ecosystem:
Exploring the Prospects for Recovery. National Academy Press.
Washington, DC.
``Degradation of the Missouri River ecosystem will continue
unless some portion of the hydrologic and geomorphic processes
that sustained the pre-regulation Missouri River and floodplain
ecosystem are restored--including flow pulses that emulate the
natural hydrograph . . . The current dam and reservoir
operation . . . to provide a steady and reliable 9-foot deep
navigation channel . . . run(s) counter to established river
science, in which a large degree of natural hydrograph
variability is essential to biological productivity and species
richness.'' \33\
---------------------------------------------------------------------------
\33\ Ibid.
Without flow restoration, physical habitat restoration efforts will
fail to achieve a meaningful level of ecosystem health, according to
the Academy report. As the Final Biological Opinion and the Academy
report repeatedly demonstrate, the availability of habitat and the
health of Missouri River native species are shaped by the frequency,
duration, magnitude, timing, and variability of the natural hydrograph,
and dam releases are a driving variable controlling flows on the river.
Until dam operations are reformed to include higher spring dam releases
and lower summer dam releases, listed species will creep inexorably
closer to extinction and additional species will be listed as
endangered and threatened.
Except for GP2021, the GP or ``environmental'' alternatives
receiving detailed analysis in the RDEIS all fail to fully capture the
elements of the RPA in the Service's Final Biological Opinion. The RPA
recommendations have been described by the Missouri River Natural
Resources Committee as ``biologically sound and scientifically
justified.'' \34\ According to the RDEIS, the GP2021 alternative
outperforms all of the other GP alternatives in nearly all of the
analyzed environmental categories. From a biological perspective,
GP2021 is the alternative that will lead to the most meaningful
restoration of the Missouri River's form and function.
---------------------------------------------------------------------------
\34\ Missouri River Natural Resources Committee. May 21, 2001.
Letter to Interior Secretary Gale Norton.
---------------------------------------------------------------------------
The GP2021 alternative provides substantial environmental,
recreation, and economic gains for the Missouri River basin in
comparison to the CWCP. This compromise alternative combines sound and,
in some cases, legally required fish and wildlife objectives with
improvements in the economies of both the Missouri River basin and the
nation. Traditional uses of the river will remain intact, yet the
Missouri will more adequately support native fish and wildlife, a
variety of recreational opportunities, and economic growth, and will
better balance the needs of the upper basin and lower basin states.
We therefore urge the Corps to adopt GP2021 as the Preferred
Alternative in the Final Environmental Impact Statement for the
Missouri River Master Water Control Manual and implement that
alternative as soon as possible.
long-term monitoring on the missouri river
American Rivers fully supports the efforts of Senator Dorgan of
North Dakota and Senator Johnson of South Dakota to introduce the
``Lewis and Clark Voyage of Scientific Discovery Act'' in the Senate.
This bill would establish the Missouri River Environmental Assessment
Program, a long-term environmental monitoring program that would help
to coordinate river research and provide information crucial to making
management decisions on the Missouri. This program, developed
cooperatively by the basin state fish and wildlife management agencies,
key federal agencies, and numerous Missouri River scientists and fish
and wildlife managers, is critical for implementing sound, long-term
management practices on the Missouri River.
missouri river fish and wildlife mitigation project
Earlier this year, the Corps delivered a report to Congress
detailing the need for up to $1.3 billion over the next 30-35 years to
restore one-quarter of the habitat along the lower Missouri River lost
to channelization. This funding would be for the Missouri River Fish
and Wildlife Mitigation Project, the primary habitat restoration
program along the lower Missouri River from Sioux City, Iowa to St.
Louis. Assuming the Corps will partner closely with the state fish and
wildlife management agencies in Nebraska, Iowa, Kansas, and Missouri to
design and build appropriate aquatic and terrestrial habitat
restoration projects along the lower river, American Rivers fully
supports this major increase in funding for the mitigation project.
Construction and operation of federal water projects on the
Missouri River have nearly eliminated the spawning, nursery, and
foraging habitat critical for the survival of the river's native fish
and wildlife. The river between Sioux City and St. Louis, channelized
to one-third of its original width to support barge traffic, has lost
more than 90 percent of its wetlands, islands, chutes, and sandbars.
Consequently, dozens of the species native to the Missouri River and
its floodplain have declined and are now considered endangered,
threatened, or of special concern by federal and state experts. The
loss of habitat also threatens a growing recreation industry along the
Missouri.
The Missouri River Fish and Wildlife Mitigation Project was created
in the 1986 Water Resources Development Act to reverse the impacts of
lower river channelization and bank stabilization through land
acquisition from willing sellers. The mitigation project restores
chutes, side channels, and other off-channel floodplain habitat
important for river wildlife. It has been very popular among citizens
and public officials in the region and has been strongly supported by
numerous Missouri River Basin members of Congress.
In the Water Resources Development Act of 1999, Congress authorized
an 118,650-acre increase in the amount of land that could be purchased
from willing sellers and restored under the mitigation project. In
addition to the amount of habitat restored under the original
authorization, when complete this would amount to the restoration of
roughly one-quarter of the 500,000 acres of habitat lost along the
lower Missouri to channelization. Since both flow changes and habitat
restoration are necessary to help ensure the long-term health of the
Missouri River, it is imperative that Congress provide the funding
necessary to implement the Missouri River Fish and Wildlife Mitigation
Project.
conclusion
I'd like to thank the Committee for this opportunity to provide
written testimony on Missouri River management. If any Members of the
Committee have questions, I'd be happy to respond in writing, or I may
be reached by telephone at (402) 477-7910 or e-mail at
[email protected].
______
Statement of Jonathan Bry, Conservation Coordinator, Dacotah Chapter of
the Sierra Club
The Missouri River desperately needs our attention. The 200 year
anniversary of the expedition of Lewis and Clark and their Corps of
Discovery is approaching so now is the perfect time to restore some of
the natural characteristics of the Missouri River.
The flow of Missouri River is currently being managed for barge
interests below Sioux City Iowa, yet the most spectacular stretches of
the river, like the Garrison Reach, are upstream. The shipping industry
and the Bush administration seem to view the Missouri River as nothing
more than a source of water to float a few barges while most Americans
are aware that the river is much more valuable than that. The value of
the Missouri River can not be truly appreciated when it is managed to
push freight, rather than for habitat and recreational opportunities.
According to the Army Corps, allowing more natural flows in the spring
and summer will not affect flood control and they will actually
increase hydro power.
We are engineering the Missouri River to death by attacking the
river on several fronts. It seems that we have not learned from the
mistakes of allowing the wishes of a politically influential industry
to be placed above the needs of fish, wildlife and people. The
downstream reach of the Missouri River has been entirely stabilized
with absolutely no consideration for aesthetic qualities, or for fish
and wildlife habitat. If we are not careful, most of our rivers may one
day resemble shipping channels. The decisions that we make now will
affect the way we perceive the Missouri River and other rivers in the
future.
It may be difficult to completely restore the dynamics of the free-
flowing, pre-dam Missouri River, but it is possible to mimic natural
flows by timing dam releases to accommodate the seasons. A spring rise
and lower summer flows will help to ensure the survival of the
endangered interior least tern, the threatened piping plover and the
endangered pallid sturgeon. It will also benefit fishing and other
recreational opportunities in states like North Dakota. The economic
benefits of recreation exceed that of the barge industry by at least a
factor of 10 and is growing fast. Practically all residents of North
Dakota support more natural flow changes for the Missouri River.
The expense of maintaining the Missouri River to accommodate an
insignificant amount of barge traffic does not justify the financial
benefits that the barge industry generates. The expense of managing the
Missouri River mainly for this relatively small industry and the
environmental cost that we must all pay are very high.
The barge industry claims that you don't have to radically alter
the flow of the river to create wildlife habitat. First of all, the
river has already been radically altered to provide a steady flow of
water to support the dwindling barge industry. Managing the river using
the recommendations of the U.S. Fish and Wildlife Service should not be
considered a radical alteration since it brings us closer to living
with a more natural river. A more natural hydrograph needs to be
reinstated.
The Army Corps of Engineers is required by law to insure that any
action authorized, funded, or carried out by such agency is not likely
to jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of habitat of such species.
Modifying the Final Biological Opinion of the U.S. Fish and
Wildlife Service so that the Army Corps of Engineers does not violate
the Endangered Species Act of 1973 is not an option. Modifying or
rewriting a scientific report will not change the original findings
that were based on solid science. The National Academy of Sciences two
year study concludes that the degradation of the Missouri River
ecosystem will continue unless the river's natural water flow is
significantly restored. It states that just restoring riverside
habitat, in the absence of dam reforms, will be insufficient to halt
the river's decline. We strongly agree with both the National Academy
of Sciences and the U.S. Fish and Wildlife Service's water flow
recommendations.
The Army Corps of Engineers has received about 55,000 comments on
the various options for reforming how the agency manages its six big
dams on the Missouri River. There are six alternatives to the Master
Water Control Manual in the Missouri River Revised Draft Environmental
Impact Statement. Over 50,000 of those comments are in favor of
restoring more natural flows to the river. If changes in flow are not
implemented, the comments of the public will have been completely
ignored. We strongly support the GP2021 option.
President Bush recently signed a proclamation designating 2003
through 2006 as the Lewis and Clark Bicentennial. He asked all
Americans to observe this event with appropriate activities that honor
the achievements of the Lewis and Clark Expedition. He also directed
Federal agencies to work in cooperation with each other, States,
tribes, communities, and the National Council of the Lewis and Clark
Bicentennial to promote educational, cultural, and interpretive
opportunities for citizens and visitors to learn more about the
natural, historical, and cultural resources that are significant
components of the Lewis and Clark story. I can not think of a better
way to commemorate the Lewis and Clark Bicentennial, than to restore
the Missouri River by allowing it to flow more naturally as it did
during the expedition of the Corps of Discovery nearly 200 years ago.
After twelve years of study costing millions of dollars, the U.S.
Army Corps of Engineers has not yet released a preferred alternative to
the Master Water Control Manual. The U.S. Fish and Wildlife Services
deadline of implementing a better flow plan by March 2003, is
approaching fast. If the Army Corps keeps the status quo, they will be
in violation of the Endangered Species Act. They may also be
contributing to a growing list of new endangered species on the
Missouri River.
The needs of upstream states like North Dakota have been ignored
for too long. It is time to update the master manual for the Missouri
River by selecting the GP2021 alternative, over the current water
control manual. The quality of life for those living in the Missouri
River basin will be diminished if the longest river in the United
States is not restored and preserved for future generations. The
Missouri River enhances our quality of life and it gives young people
another good reason to stay in North Dakota.
______
Statement of Richard H. Opper, Executive Director of the Missouri River
Basin Association, Lewistown, MT
My name is Richard Opper, and I am the Executive Director of the
Missouri River Basin Association (MRBA), P.O. Box 301, Lewistown,
Montana 59457. On behalf of MRBA, I thank you for the opportunity to
provide testimony to this hearing.
The MRBA is a coalition of eight states (Iowa, Kansas, Missouri,
Montana, Nebraska, North Dakota, South Dakota, and Wyoming) and the
Indian tribes of the Missouri Basin. MRBA has been working with the
Corps of Engineers and other federal agencies since 1989 to revise the
Missouri River Master Water Control Manual (Master Manual).
In 1995, the Corps of Engineers asked MRBA to develop aspects of a
river operating plan that would be acceptable to the basin's states and
Indian tribes, and MRBA accepted the challenge, Initially, MRBA focused
on developing recommendations to improve the overall economic and
environmental health of the river basin. This work culminated in the
April 1998 publication of MRBA's recommendations, a document that
continues to serve as a planning guide for the association.
Next, MRBA turned its attention to the two most complex and
contentious issues in the basin: drought flow management and recovery
of the basin's threatened and endangered species. MRBA spent nearly two
years in discussions about these two subjects with the Corps of
Engineers, the U.S. Fish and Wildlife Service, and other agencies. It
organized several basinwide conferences to talk with key stakeholders
throughout the basin and held dozens of internal negotiation sessions
to develop the following recommendations in November 1999 (Appendix
A).*
---------------------------------------------------------------------------
* The appendixes have been retained in subcommittee files.
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The recommendations made by MRBA included operating criteria which
would retain approximately two million more acre-feet of water in the
reservoirs and avoid back-to-back years of minimum service navigation
in the lower river in another drought of the duration and intensity as
the one that hit the Missouri River Basin in the late-1980s.
In terms of Endangered Species Recovery, MRBA recommended the
following:
1. Habitat: MRBA supported a much more aggressive approach to
habitat acquisition and enhancement activities in the basin. There are
several good programs currently in place to do this, such as the
Missouri River Fish and Wildlife Mitigation Project, but they need to
be greatly enhanced with expanded authorities and funding.
2. Monitoring: MRBA urged the immediate establishment of a Missouri
River monitoring program. Such a program would determine if species
recovery efforts are on track, thus saving money in the long run.
3. Recovery Committee: MRBA recommended the formation of a Recovery
Committee that would allow the basin's stakeholders to participate in
river management decisions. Such a committee would help basin
stakeholders work more effectively with the federal agencies on
recovery issues and facilitate the concept of adaptive management to
the river system.
4. Flows: MRBA recommended that the Corps run a trial spring rise
out of Fort Peck Reservoir to measure the benefits to the pallid
sturgeon, least terns, and piping plovers in the 188 mile stretch of
river between Fort Peck Dam in Montana and Lake Sakakawea in North
Dakota. It also recommended that the Recovery Committee continue to
investigate the success and adverse impacts of flow adjustments out of
Gavins Point Dam to benefit the fish and wildlife in the lower river.
5. Other: MRBA recommended unbalancing the water releases from the
upper three reservoirs to benefit sport fisheries, recreation, and
endangered species; developing a mechanism to determine how to
equitably distribute the pain and benefits of future depictions
throughout the basin; and releasing excess summer and fall storage to
meet the needs of downstream uses.
All MRBA member states except Missouri supported this November 1999
proposed plan. The tribes abstained from voting, and the state of
Missouri said it could not support certain elements of the plan.
At the same time that MRBA finished its work on the agreement, the
U.S. Fish and Wildlife Service was in Section 7 consultation with the
Corps of Engineers on the Corps' existing operations of the Missouri
River. This was followed by the publication of the Fish and Wildlife
Service's Final Biological Opinion. The Service generally endorsed
MRBA's recommendations, but it concluded that a more aggressive
approach was needed to avoid jeopardy to the three threatened and
endangered species in the basin--the least tern, the piping plover, and
the pallid sturgeon. Specifically, it said that changes to the flows
below Gavins Point Dam in the lower river were essential to the
recovery of these species.
Then, in August 2001, the Corps released its Revised Draft
Environmental Impact Statement (EIS) that contained six possible
alternatives, one of which was the current water control plan. The
Modified Conservation Plan (MCP) alternative was similar to MRBA Plan.
The four other alternatives were modifications of the MCP plan with
various levels of downstream spring rises and low summer flows added to
it.
In February 2002, MRBA decided to expand its November 1999
recommendations in order to avoid what the Fish and Wildlife Services'
Biological Opinion determined would lead to a jeopardy opinion.
Specifically, MRBA recommended that the Corps implement a demonstration
project which would increase spring releases from Gavins Point Dam by
15,000 efs above full navigation flows approximately once every third
year, when additional downstream flooding risks are minimal. MRBA also
recommended that as part of the demonstration project, the Corps should
reduce flows in the lower river to minimum navigation service levels
for two-and-a-half months each summer. The demonstration project should
be conducted only if certain criteria, such as restrictions on the use
of water from the Kansas River Reservoir system, are met. These
restrictions and limitations are outlined further in the letter in
Appendix B. MRBA suggested that the demonstration project continue for
roughly three cycles of the spring rise, or approximately ten years. If
the flow changes appear at the end of that time to help recover the
basin's threatened and endangered species while minimizing impacts to
river users, then the Corps should consider maintaining these flow
changes as part of its new Master Manual.
Kansas, Montana, Nebraska, North Dakota, South Dakota, and Wyoming
supported these new recommendations. The state of Missouri opposed
them. The state of Iowa also opposed these changes while reiterating
its support for MRBA's original November 1999 recommendations. The
Tribes again abstained from voting. The Tribes requested that the
revised Master Manual include a general operations plan for mitigation
of environmental damages due to the fluctuation of water levels
proposed by the Corps' Revised Draft Environmental Impact Statement
alternatives. The Tribes are concerned that unbalanced water levels in
the upper flood control system promote bank erosion and expose cultural
resources to environmental damage.
The Corps of Engineers provided considerable support and
encouragement to assist MRBA with four basinwide stakeholder meetings
and many negotiation sessions on proposed Master Manual changes. MRBA's
goal was to provide comprehensive recommendations that would recover
the basin's threatened and endangered species while minimizing adverse
impacts to river users. Now the Corps must decide upon and announce a
new Preferred Alternative for the Missouri River. Those of us in the
basin have been waiting with varying degrees of patience for thirteen
years to hear how the Corps intends to manage the Missouri River for
the next several decades. The basin was assured repeatedly that the
Corps would announce a new Preferred Alternative by the end of May
2002. However, more than a month has passed since that deadline and the
Corps has not announced its decision. We are concerned that continued
delays in announcing the new Preferred Alternative may prevent the
implementation of the revised Master Manual by the 2003 deadline.
Regardless of which Preferred Alternative is ultimately selected,
we still need accurate scientific data to assist in the management of
the river. MRBA would like to see Congress authorize and appropriate
funds for a comprehensive Missouri River monitoring program, which will
be an important step towards encouraging cooperative scientific
decision-making approaches to managing the Missouri River. MRBA has
long supported the need for monitoring in our basin and stands ready to
assist the Senate Energy and Natural Resources Water and Power
Subcommittee as monitoring bills are drafted and moved through
Congress.
I thank you for the opportunity to provide testimony to this
hearing, and please let me know if MRBA can be of further assistance.
______
Statement of the American Farm Bureau Federation
The American Farm Bureau Federation is a 5.1 million member general
farm organization representing farmers and ranchers in all 50 states
and Puerto Rico. American Farm Bureau policy, as approved by our
delegates supports retention of the current Water Control Plan for the
Missouri River. Our policy states:
We believe the Corps should maintain the current Master Water
Control Manual as is and should nor deviate from the standards
set forth therein. We are opposed to the Corps requiring a
spring rise on the Missouri River.
This policy reflects concern about the potential for flooding of
agricultural lands below Gavins Point and the harm to navigation on the
Missouri and Mississippi Rivers if a ``spring rise'' is allowed.
Altering the management of the Missouri River by allowing for a
``Spring rise'' would not only affect farmers in downstream states
(Missouri, Nebraska, Iowa and Kansas) by potentially flooding their
land, but also affect barge traffic movements on the Missouri and
Mississippi Rivers. Without proper management of river flows over the
course of the year, transportation could be hampered by insufficient
water levels on the Missouri River and on the Mississippi River between
Memphis, Tennessee, and Baton Rouge, Louisiana.
A ``spring rise'' would have significant harmful impacts on
productive agricultural lands as well as the movement of agricultural
commodities and input supplies along the Missouri and Mississippi
Rivers. Flooding and impaired drainage would impact over 1 million
acres of productive farmland. River transportation for the efficient
and cost-effective transportation of agricultural commodities is of
paramount importance to the agricultural economy of the Midwest and our
nation. The prices farmers receive for commodities will decrease and
the prices they pay for inputs such as fertilizer will rise if barge
transportation is disrupted and more expensive transportation modes are
utilized. Efficient and effective transportation is one of the United
States' major competitive advantages in world grain trade.
The National Academy of Sciences, in its recent report on the
Missouri River, called for a moratorium on changes to the manual while
the Corps, in consultation with other agencies and stakeholders.
including landowners and agriculture, works to improve the Missouri
River environment.
In May 2002 the Eighth Circuit Court of Appeals in St. Louis stayed
lower court rulings that prohibited the Corps of Engineers from
managing water levels on the river according to the current manual.
This action allows the Corps to maintain consistent water levels for
the river for navigation and recreation.
The Corps of Engineers is to be commended for its persistence in
seeking to find a balance among the many interests in the Missouri
basin. Measures that increase flooding or reduce the efficiency of
navigation should not be adopted. Flood protection and reliable
commercial navigation on our waterways will be maintained by continuing
to operate under the Current Water Control Plant for the Missouri
River.
______
Statement of Dave Koland, Deputy Manager, Garrison Diversion
Conservancy District
Mr. Chairman and members of the Subcommittee, my name is Dave
Koland, Deputy Manager for the Garrison Diversion Conservancy District
in North Dakota. Thank you for this opportunity to provide testimony on
this issue, which is critical to the State of North Dakota. My message
is the same distinct and unwavering one that we in North Dakota and
most other Missouri River basin states have been stating for many
years. The Missouri River Master Manual (Master Manual) of the U.S.
Corps of Engineers must be changed to meet the contemporary needs of
the basin.
The Flood Control Act of 1944 promised many benefits and for many,
those ideas were realized. The problem is that time and uses have
changed the need for those benefits.
Power generation, flood control and water supply benefits have
occurred as originally envisioned and have provided hundreds of
millions of dollars in benefits and prevented many personal losses.
On the other hand, irrigation development and downstream Missouri
River navigation have not even accomplished a small percentage of what
was originally envisioned. North Dakota was promised in excess of one
million acres of federal irrigation to offset our loss of more than
500,000 acres of prime bottom land. That level of irrigation was never
realized and, in fact, more acres of irrigated land were flooded by the
dams in North Dakota than have ever been developed through the Pick-
Sloan Plan. The Dakota Water Resources Act of 2000 further reduced the
acreage of potential irrigation to less than 76,000 acres. That
legislation also recognized the need for water in Eastern North Dakota,
additional municipal water for rural North Dakotans and fish and
wildlife and recreation benefits. We need to be assured that North
Dakota's sovereign rights to all of our natural resources are
recognized by the Corps and Bureau of Reclamation. This should be
spelled out in the new Master Manual.
Downstream navigation benefits were projected by the Corps to
exceed 20 million tons of goods annually. The present navigation only
moves an insignificant 1.5 million tons of goods annually.
In contrast, recreation benefits in the upper basin have far
exceeded the 1944 projections. Water-based recreation in North Dakota
today is big business along the Missouri River. Lakes Sakakawea and
Oahe provide diverse recreation opportunities to residents and
nonresidents alike. The Corps estimated the national economic benefits
derived from recreation at $84.7 million per year, while the total
navigation benefits were only $6.9 million. That is a significant
difference and only emphasizes how poor the Corps' projections
originally were and how times have changed in the way the public uses
our water resource and allocates their recreational dollars.
The present Master Manual is out of date and needs to be changed.
It predates federal laws such as NEPA, the Threatened and Endangered
Species Act, the Clean Water Act and many other laws which Congress has
enacted to protect our natural resources.
The five alternatives that the Corps is considering to the old
Master Manual are a step in a new direction. All five conserve water
during drought periods, which improves our fish survival and provides
our recreation benefits. It also increases federal hydopower
generation. During the late 1980s, North Daktoa experienced a severe
drought. If any one of the new alternatives had been in place, Lake
Sakakawea would have been four to six feet higher, thus, improving our
fish habitat, more efficient hydopower generation and an overall
benefit to our economy along the Missouri River.
Over the years, the Missouri River Basin Association (MRBA) has
worked long and hard to reach agreement on changes to the Master
Manual. In November 1999, seven of the eight member states agreed to
support a revised plan, which included drought conservation measures
for the mainstem reservoirs, increased monitoring and the formation of
a recovery committee to facilitate the concept of adaptive management
of the river system. This plan is similar to the Corps' Modified
Conservation Plan alternative. In February 2002, the MRBA agreed to
expend its November 1999 recommendations in light of the U.S. fish and
Wildlife Service's recommendation that spring release below Gavins
Point be increased to help recover certain threatened and endangered
wildlife species. This is similar to the Corps' GP 15/28 alternative.
It is important to recognize that six of the eight states supported
this recommendation.
We, in North Dakota, are extremely concerned that the Corps has
chosen to not identify a preferred alternative. This only confuses the
public and other agencies as to the Corps' intent. We disagree with the
Corps ``go slow'' approach. It is bureaucratic and non-responsive to
everyone's needs. Any one the alternatives, if implemented, would be a
significant improvement over the current Master Manual.
All states in the Basin depend upon the river and reservoirs, and
North Dakota relies on a responsible operation of those waters for our
future. The future needs were evaluated by the MRBA and, after
considerable deliberation, most agreed to support the ultimate
recommendation. As good neighbors, both the upstream and downstream
states must work together to assure that the good of the people is met
and none of us suffer at the hands of another in the management of this
important resource.
In conclusion, I must strongly recommend that the Corps of
Engineers stick to its current schedule for completing the Master
Manual revision process. All states in the Basin must be able to
realize the positive benefits and also suffer the negative ones during
times of drought and low water. Implementation of any of the five
alternatives would be an economic improvement to our depressed economy.
This action needs to happen now so that our citizens, both old and
young, can enjoy the fruits of work.
The five main stem dams authorized in the 1944 Flood Control Act
were constructed in 18 years. Why should revisions to the Master Manual
take more than 14 years. It is time to say enough and get about the job
of meeting the contemporary water needs of the entire Basin and not
just those of a few. Thank you for your time Mr. Chairman.
______
Statement of John Steele, President, Oglala Sioux Tribe
Good Morning Mr. Chairman:
Thank you for the opportunity to present testimony on the proposed
management plan for the Missouri River. The Missouri River and its
surrounding shores are of extreme importance to the Oglala Sioux Tribe.
The Oglala Sioux Tribe was a party to the Fort Laramie Treaty of
April 29, 1868. This Treaty established the Great Sioux Reservation and
recognized that the Oglala Sioux Tribe and the other signatory tribes
held recognized legal title to the following area:
Commencing on the east bank of the Missouri River where the
forty-six parallel of north latitude crosses the same, thence
along low-water mark down said east bank to a point opposite
where the northern line of the State of Nebraska strikes the
river, thence west across said river, and along the northern
line of Nebraska to the one hundred and fourth degree of
longitude west from Greenwich, thence north on said meridian to
a point where the forty-sixth parallel of north latitude
intercepts the same, thence due east along said parallel to the
place of the beginning, and in addition thereto, all existing
reservations on the east bank of the said river shall be, and
the same is, set apart for the absolute and undisturbed use and
occupation of the Indians herein named . . .
Also, the Oglala Sioux Tribe currently holds unextinguished
aboriginal title to the Great Sioux Reservation (including the entire
Missouri River within South Dakota) based on its use and occupation of
the territory since time immemorial.
While the boundaries of this Great Sioux Reservation have never
been diminished, the United States has chosen to flagrantly violate our
treaty rights in a number of ways. First, in 1877, it illegally
confiscated the western end of the reservation, including the 7.3
million areas in and around the Black Hills. Then, former U.S.
President Benjamin Harrison purported to claim U.S. ownership of an
additional 18 million acres of Great Sioux Reservation land through the
use of an illegal 1890 Presidential Proclamation, which wrongfully
alleged that the Sioux had ceded this land to the United States even
though no such legal session had occurred. Then, in 1944, the United
States placed the Army Corps of Engineers in charge of constructing six
dams on the main stem of the Missouri River under the Missouri River
Pick-Sloan Program. Four of these dams, the Lake Oahe, Lake Sharpe,
Lake Francis Case and Lewis and Clark are located within the Great
Sioux Reservation. All four were constructed in blatant disregard for
the Fifth Amendment rights of the Oglala Sioux Tribe and the other
tribal signatories of the 1868 Treaty. To make matters worse, the Corps
has maintained 123 acres of shoreline around these four dams. These
areas have been open to the free use and enjoyment of the American
public even though both federal and private studies have documented
that these properties contain religious and cultural items and human
remains which are the property of the Oglala Sioux Tribe and the other
1868 Treaty tribes. All are items are protected by the provisions of
the 1868 Treaty and the Native American Graves Protection and
Repatriation Act.
As if this were not bad enough, with the enactment of the Water
Resources Development Act of 2000 (WRDA 2000), the United States
initiated the transfer and long term lease of in excess of 90,000 acres
of shoreline from the Army Corps of Engineers to the State of South
Dakota and the transfer and long term lease of addition lands around
the four dams to the Lower Brule and Cheyenne River Sioux Tribes
without the consent of the Oglala Sioux Tribe. Because this transfer is
in flagrant disregard for our treaty rights, as well as numerous
federal environmental, historic preservation and cultural protection
statutes, the Oglala Sioux Tribe has filed suit in the U.S. District
Court for the District of Columbia to enjoin these transfers. This case
is on going.
Any adjustments to the levels of the Missouri River will have a
direct impact on these shoreline properties and the items they contain.
For this reason, the Oglala Sioux Tribe and the other tribal
signatories to the 1868 Treaty must be a party to any decisions which
impact the levels of the Missouri River at those locations.
The Oglala Sioux Tribe has reviewed the Master Plan proposed by the
Army Corps and objects strongly to a number of its proposals. Our
objections and the justification for them are detailed in the following
text entitled ``Comments of the Oglala Sioux Tribe Missouri River
Master Manual RDEIS.''
On behalf of the Oglala Sioux Tribe, I would like to thank you for
this opportunity to present our views on this important issue.
comments of the oglala sioux tribe missouri river master manual rdeis
The Oglala Sioux Tribe rejects the Master Manual revision and
update and the RDEIS. Both propose to make irretrievable commitments to
(1) navigation in the lower basin, (2) maintenance of reservoir levels
in the upper basin and (3) fish, wildlife and endangered species
throughout the upper and lower basins. These commitments are violations
of the constitutional, civil, human and property rights of the Tribe.
The RDEIS improperly treats Indian water rights as follows:
The Missouri River basin Indian tribes are currently in various
stages of quantifying their potential future uses of Mainstem
System water. It is recognized that these Indian tribes may be
entitled to certain reserve or aboriginal Indian water rights
in streams running through and along reservations. Currently,
such reserved or aboriginal rights of tribal reservations have
not been quantified in an appropriate legal forum or by compact
with three exceptions. . . . The Study considered only existing
consumptive uses and depletions, therefore, no potential tribal
water rights were considered Future modifications to system
operation, in accordance with pertinent legal requirements,
will be considered as tribal water rights are quantified in
accordance with applicable law and actually put to use. Thus,
while existing depletions are being considered, the Study
process does not prejudice any reserved or aboriginal Indian
water rights of the Missouri River basin Tribes. (PDEIS 3-64)
This treatment violates the trust responsibility of the United
States to the Oglala Sioux Tribe and other 1868 Treaty tribes. The
Oglala Sioux Tribe was a party to the Treaties of 1851 and 1868. The
1868 treaty established the Great Sioux Reservation from the easterly
bank of the Missouri River throughout all of the area to the West that
is now embraced by the State of South Dakota. The area was set aside by
the Treaty of 1868 for the exclusive, ``undisturbed use and
occupation'' of the 1868 Treaty tribes. The Oglala Sioux Tribe reserved
rights to the use of water in the Missouri River, its tributaries and
its aquifers for present and future generations from time immemorial.
The water rights are prior and superior to all subsequent uses of
water. The water rights were reserved by the Tribe for all purposes
necessary for the pursuit of the arts of civilization. The water rights
of the Oglala Sioux Tribe are not federal rights, reserved by the
United States, but were reserved by our forefathers in our Treaties for
our use. Our water rights are not subject to sensitivity, primary and
secondary purposes nor are they limited to minimal amounts necessary
for the purposes of a federal reservation of water rights for a
national forest, a national monument, an Air Force Base or other
federal reservations.
The Oglala Sioux Tribe proclaims its continued dominion over all of
the lands within the boundaries of the Pine Ridge Indian Reservation
and throughout the Great Sioux Reservation of 1868 as reserved from
time immemorial including but not limited to rights, jurisdictions,
privileges, prerogatives, liberties, immunities, and temporal
franchises whatsoever to all the soil, plains, woods, wetlands, lakes,
rivers, aquifers, with the fish and wildlife of every kind, and all
mines of whatsoever kind within the said limits; and the Tribe declares
its water rights to the amounts necessary to supply water for
irrigation and all irrigable acreage within the boundaries of the Great
Sioux Reservation; and all municipalities, commercial and industrial
purposes and rural homes with water for all future persons; to supply
livestock of every kind on the ranges having an annual water
requirement necessary for that purpose; and for other purposes, such as
oil, gas, coal or other minerals, forests, recreation, and all other
purposes consistent with the arts of civilization and the maintenance
of a permanent and viable homeland as guaranteed by the 1868 Treaty.
The RDEIS is also supported by a flawed biological opinion, which,
among other things, failed to consider the proper analysis of Indian
water rights. The biological opinion failed to give any consideration
to the water rights on the Oglala Sioux Tribe in the definition of the
environmental baseline. Even the Working Group on the Endangered
Species Act and Indian Water Rights, Department of Interior, published
recommendations for consideration of Indian water rights in Section 7
Consultation, for undertakings such as the Master Manual, as follows:
The environmental baseline used in ESA Section 7 consultations
on agency actions affecting riparian ecosystems should include
for those consultations the full quantum of (a) adjudicated
(decreed) Indian water rights, (b) Indian water rights
settlement act, and (c) Indian water rights otherwise partially
or fully quantified by an act of Congress. . . . Biological
opinions on proposed or existing water projects that may affect
the future exercise of senior water rights, including
unadjudicated Indian water rights, should include a statement
that project proponents assume the risk that the future
development of senior water rights may result in a physical or
legal shortage of water. Such shortage may be due to the
operation of the priority system or the ESA. This statement
should also clarify that the FWS can request reinitiation of
consultation on junior water projects when an agency requests
consultation on federal actions that may affect senior Indian
water rights.
The Working Group recommendations improperly failed to address
unadjudicated Indian water rights, such as those in the Missouri River
Basin. Not even this flawed and minimal guidance was taken into
account.
It is unthinkable that the United States would proceed with water
resource activities, whether related to endangered species, water
project implementation or Missouri River operation in the absence of
properly considering Indian water rights that are not part of an
existing decree--presuming, in effect, that the eventual quantification
of Indian water rights will be so small as to have a minimal impact on
the operation of facilities in a major river, such as the Missouri
River, or so small as to be minimally impacted by assignment of
significant flow to endangered species, navigation and other state
purposes. The flows required to fulfill or satisfy Oglala Sioux water
rights are, in fact, neither small nor minimal but are significant. For
the biological opinion or the RDEIS to proceed without properly
addressing the magnitude of Indian water rights is a severe breach of
trust responsibilities by the United States and its agents.
The approach of the United States and its agent in the biological
opinion and RDEIS is clear. The concept is to allow sufficient time to
pass after a federal decision on the future operations of the Missouri
River on behalf of the states, endangered species and other special
interests to leave the Oglala Sioux Tribe without a will for political
or judicial remedy:
``After thirty-five years of actual possession, after twenty-
five years of possession solemnly guaranteed . . ., after
innumerable leases and releases, mortgages and devises, it was
too late to search for flaws in titles. Nevertheless something
might have been done to heal the lacerated feelings and to
raise the fallen fortunes . . .'' \1\
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\1\ Sir Thomas Macaulay, 1848, The History of England, Penguin
Classics, pp 149-151.
While the foregoing was written in England from a Nineteenth
Century perspective about the colonization of Ireland and the taking of
native Irish land by the English, it effectively describes federal
policy toward Indian water rights in the Missouri River Basin.
The unwritten policy of the Corps of Engineers and the U.S. Fish
and Wildlife Service in the RDFIS and biological opinion, respectively,
is to ignore Indian water rights in the Missouri River Basin and to
await the outcome of extrajudicial and immoral state adjudication
processes, such as the recent Arizona Supreme Court opinion (Issues 3)
on the quantification of Indian water rights. The arguments against
Indian water rights quickly unfold in the opinion as set forth below:
``. . . There can be little doubt that the PIA standard works
to the advantage of tribes inhabiting alluvial plain or other
relatively flat lands adjacent to stream courses. In contrast,
tribes inhabiting mountainous or other agriculturally marginal
lands are at a severe disadvantage when it comes to
demonstrating that their lands are practicably irrigable. . .
.'' citing Eluid Martinez v. Lewis (861 P 2nd 253).
``. . . Another concern with PIA is that it forces tribes to
pretend to be farmers in an era when ``large agricultural
projects . . . are risky, marginal enterprises. This is
demonstrated by the fact that no federal project planned in
accordance with the Principles and Guidelines . . . has been
able to show a positive benefit/cost ratio in the last decade
(1981 to 1991). . . .''
``. . . Limiting the applicable inquiry to PIA analysis not
only creates a temptation for tribes to concoct inflated,
unrealistic irrigation projects, but deters consideration of
actual water needs based on realistic economic choices . . .
they may be irrigable academically, but not as a matter of
practicality. . . .''
``. . . The PIA standard also potentially frustrates the
requirement that federally reserved water rights be tailored to
minimal need. . . . The court's function is to determine the
amount of water necessary to effectuate this purpose, tailored
to the reservation's minimal need. We believe that such a
minimalist approach demonstrates appropriate sensitivity and
consideration of existing water user's water rights, and at the
same time provides a realistic basis for measuring tribal
entitlements . . .'' \2\
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\2\ 39 P. 3rd (Ariz. November 26, 2001).
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Perhaps hostile state courts can find specious mechanisms for
denigrating Indian water rights in the Missouri River Basin in the
manner proposed by the Arizona Supreme Court, thereby justifying the
treatment of Indian water rights by the Corps of Engineers and the U.S.
Fish and Wildlife Service and the RDEIS and the supporting biological
opinion. The Oglala Sioux Tribe strongly disagrees and condemns the
Master Manual and the supporting NEPA compliance documents. We ask that
the Congress of the United States honor the 1868 Treaty, and the vested
property rights that the treaty created under the Fifth Amendment.
______
Statement of William G. Schubert, Maritime Administrator,
Department of Transportation
Mr. Chairman and Members of the Subcommittee, thank you for the
opportunity to submit testimony on water management issues on the
Missouri River and the status of efforts to revise the Missouri River
Master Water Control Manual.
MARAD has been actively engaged in discussions with the Army Corps
of Engineers (Corps) and other stakeholders for many years on the
effort by the Corps to consider changes in the way in which it operates
the Missouri River. The alternatives discussed in the Revised Draft
Environmental Impact Statement (RDEIS) may have adverse impacts on
waterway commerce on the Missouri River.
The RDEIS lists five alternatives to the Current Water Control
Plan. Four of the alternatives would involve an increase in spring
flows in order to protect the Pallid Sturgeon, Interior Least Tern, and
the Piping Plover. In some years, this proposed ``spring rise'' could
reduce the amount of water in the main stem reservoirs that is
potentially available later in the year to supplement releases from
Gavins Point to support commercial navigation.
The fifth alternative would involve both a spring rise and a split
navigation season. For a period of time during the early summer, the
river would be drawn down. While the regulation of the navigation pools
on the Upper Mississippi River for environmental enhancement has been
successfully implemented in a similar fashion in recent years, there is
a significant difference between the two programs. The drawdown of the
navigation pools on the Upper Mississippi River was designed so as not
to have a detrimental effect on commercial navigation. The navigation
pool drawdowns were limited to certain river stages and water flow
rates, and problem areas in the navigation channel were dredged to
ensure that towboats could continue to operate during the drawdowns. By
contrast, the fifth alternative in the Missouri River RDEIS would lead
to a cessation of commercial navigation during the drawdown.
Thank you for the opportunity to provide a statement for the record
on this issue.