Judge orders reduced Missouri River flow to 'protect nesting areas' - Corps of Engineers says it will not obey court order
Her order conflicts with last year's Nebraska District Court's ruling ordering the Corps to maintain enough flow to allow barge traffic, power generation and other needs.
The U.S. Justice Department has asked Judge Kessler to stay her injunction since the Corps cannot comply with both rulings.
Environmentalists, who brought the suit, claim that the Missouri River is kept artificially high to benefit the barge industry that hauls containers of grain and other products downstream to consumers.
Judge Kessler believes the environmentalists will win because in 2000, the U.S. Fish and Wildlife ordered the Corps to reduce the Missouri's flow for the two birds and the pallid sturgeon.
Kessler admits that her ruling will cause financial hardship for the barge companies, negatively impact water quality, and increase power costs for consumers, but "[T]here is no dollar value that can be placed on the extinction of an animal species - the loss is to our planet, our children and future generations," she wrote.
THE U.S. ARMY CORPS OF ENGINEERS SAID THIS WEEK IT WOULD NOT OBEY A court order to reduce flows on the Missouri River to expose sandbars that are used for nesting by three endangered species of birds. (Greenwire, July 16)
Instead, the Corps said it would follow an earlier court decision that requires it to follow a 60-year-old master plan for operating six Missouri River dams.
That plan requires the Corps to maintain river levels high enough to float barges during the summer. The Department of Justice plans to appeal the more recent ruling to the U.S. Circuit Court of Appeals for the District of Columbia.
Missouri River Ruling Could Hinder Water Quality, Shipping Revenues
WASHINGTON - The government sought Monday to block a federal judge's order to greatly reduce the amount of water in the Missouri River this summer because the order contradicts an earlier ruling from another court.
The Department of Justice asked U.S. District Court Judge Gladys Kessler to stay an injunction she granted that requires a more natural flow along the Missouri to protect endangered birds and fish.
Her ruling, issued Saturday, conflicts with a ruling in 2002 from the U.S. District Court for the District of Nebraska that requires the U.S. Army Corps of Engineers to keep enough water in the lower Missouri to allow for barge navigation, power generation and other needs.
"The corps cannot comply with both of these orders, and as a result, may be subject to contempt proceedings," Justice Department spokesman Blain Rethmeier said Monday.
The corps reduced flows slightly on Saturday after Kessler, a judge from the U.S. District Court for the District of Columbia, granted the injunction. Depending on whether a stay is granted, agency officials will decide Tuesday whether to reduce the Missouri's depth - by about 6 feet at Kansas City, Mo., for example - to comply with the judge's order.
Kessler said in her ruling on Saturday that injury to wildlife - the least tern, piping plover and pallid sturgeon - will be irreparable without curtailing the Missouri's flow.
American Rivers, Environmental Defense, the Isaac Walton League, the National Wildlife Federation and a half-dozen other groups are suing to force the changes in river flow, which they contend are required by the federal Endangered Species Act.
"This ruling will prevent the Corps from wasting valuable water in a drought to float the mere four towboats actually using the river right now," said Tim Searchinger, an attorney for Environmental Defense. Each boat pulls several barges, each of which can carry dozens of containers.
The lower reaches of the river through Missouri, Kansas, Iowa and Nebraska will be too shallow for barge tows if flows are reduced to levels sought by conservation groups, critics said.
"The reliability of the river for barge transportation has been adversely affected over the last few years, and this particular ruling just adds insult to injury," Randy Asbury, who heads the Missouri-based Coalition to Protect the Missouri River, said Monday.
Lower Missouri states say the more natural flow sought by environmentalists, who also are demanding a spring rise in water levels every third summer to mimic runoff from melting mountain snow, will flood homes and farmland and devastate the barge shipping industry.
It would take about two weeks for water reductions made at the Gavins Point Dam on the border between South Dakota and Nebraska to reach Kansas City, where the Missouri's depth would drop from 14 feet to 8 feet.
A barge loaded with 134 truckloads of grain was waiting in Omaha Monday for a towboat to bring it down the Missouri, corps spokesman Paul Johnston said. The nearest towboat was in Kansas City and can't make the trip if levels drop, he said.
In her ruling issued Saturday, Kessler acknowledged barge companies will lose revenues, water quality may suffer and consumers may pay more for power this summer along the Missouri River.
But Kessler said benefits of lower flows outweigh the costs.
"There is no dollar value that can be placed on the extinction of an animal species - the loss is to our planet, our children and future generations," Kessler wrote.
Kessler said conservationists probably will win the lawsuit against the U.S. Army Corps of Engineers because the corps was ordered in 2000 to switch to a more natural flow, with heavier water releases every third spring and lighter flows each summer.
The order came from the U.S. Fish and Wildlife Service, which said in its biological opinion that only by implementing the changes can the piping plover, interior least tern and pallid sturgeon be protected. The animals are on the federal list of endangered or threatened species.
The Bush administration indefinitely postponed the changes to the river mandated by the order by initiating talks between the corps and the wildlife service. The service agreed this year to allow higher flows for this summer only, but the judge called that decision baseless.
"The public interest is served when the legislation that Congress has enacted is complied with, and federal agencies fulfill their congressional mandates," Kessler wrote.
ON THE NET
Army Corps of Engineers Missouri River Region: http://www.nwd.usace.army.mil/
American Rivers: http://www.americanrivers.org
U.S. District Court for the District of Columbia: http://www.dcd.uscourts.gov/
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