Missouri River ruling could hinder water quality, shipping revenues

July 14, 2003

By LIBBY QUAID Associated Press Writer

WASHINGTON (AP) - The government will seek to block a federal judge's ruling to reduce the amount of water in the Missouri River this summer because it conflicts with another court ruling last month.

The Department of Justice planned to ask U.S. District Judge Gladys Kessler to stay an injunction she granted conservation groups suing to force a more natural flow along the Missouri to protect endangered birds and fish.

"Because of the apparent conflict, we are likely to file a stay," Justice Department spokesman Blain Rethmeier said Monday.

Kessler said in her ruling that injury to wildlife _ the least tern, piping plover and pallid sturgeon _ will be irreparable without the Army Corps of Engineers 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 flow changes, which they say 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.

The other court ruling, issued in June by the 8th U.S. Circuit Court of Appeals, said the corps must keep enough water in the lower Missouri to allow for barge navigation, power generation and other needs. Several other lawsuits are also pending.

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.

"What we have here more than anything is a dramatic reliability issue," Randy Asbury, who heads the Missouri-based Coalition to Protect the Missouri River, said Monday. "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."

Lower Missouri states say the more natural flow sought by environmentalists _ which also call for a spring rise every third summer to mimic runoff from melting mountain snow _ will flood homes and farmland and devastate the barge shipping industry.

In her ruling 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 the 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.

In her 70-page ruling, Kessler said the conservationists are likely to 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 the changes are the only way to protect the piping plover, interior least tern and pallid sturgeon, which are on the federal list of endangered and threatened species.

Changes were due by last year, but the Bush administration postponed them indefinitely by launching ongoing talks between the corps and the wildlife service. The wildlife service agreed earlier this year to allow higher flows for only this summer, 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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