Archive for Wednesday, August 17, 2005

Environmental groups lose appeal

Conservationists had supported plan for Missouri River that would imitate natural ebb and flow of water levels

August 17, 2005


— Environmental groups lost their appeal Tuesday of a ruling allowing the Missouri River to be controlled without changes they say will save endangered fish and birds.

The 8th U.S. Circuit Court of Appeals upheld an earlier decision by U.S. District Judge Paul Magnuson in Minnesota, who ruled in favor of the U.S. Army Corps of Engineers.

The agency has proceeded with its new plan to keep summer water levels high enough for barge shipping.

Conservationists and the fishing and recreation industry in Montana and the Dakotas opposed that approach; they want a more seasonal spring rise and lower summer flows that would mimic how the river flowed naturally for centuries.

Downstream farming and shipping interests argued that changing to an ebb-and-flow would end barge shipping and cause flooding.

The river begins in Montana and runs through or alongside North Dakota, South Dakota, Nebraska, Iowa, Kansas and Missouri before emptying into the Mississippi River.

In its natural state, the river flooded extensively each spring.

So Congress passed the Flood Control Act in 1944, authorizing the construction of a dam and reservoir system on the upper river to control the flooding.

The act also envisioned that the reservoirs would provide water for irrigation projects and the steady release into the river during the summer to support downstream navigation, hydroelectric power generation and lake recreation.

Magnuson's ruling came nearly a year after a different federal judge ordered the changes and, when corps leaders refused to act, cited them for contempt.

The environmental groups asked the 8th Circuit to uphold an order some four years ago from the U.S. Fish and Wildlife Service that the corps raise spring waters and release less water in the summer to encourage nesting and spawning and to protect habitat.

The 8th Circuit said that Congress had deemed flood control and navigation as the key duties of the corps in managing the river.

The corps' new management plan for the river replaces one that had gone unchanged for more than 40 years and was written long before the pallid sturgeon and two shorebirds, the interior least tern and piping plover, were placed on the endangered and threatened species lists.

"Under these circumstances, we cannot say that the corps failed to consider downstream navigation before making its decision," wrote Judge Raymond Gruender.

Nebraska Attorney general Jon Bruning hailed the ruling.

"The court's decision recognizes that the corps' obligation to comply with the Endangered Species Act does not trump the congressionally authorized purposes of the Missouri River system," he said.

The appeal involved American Rivers Inc., Environmental Defense Fund, the Izaak Walton League of America, the National Wildlife Federation and Wildlife Federation chapters in Iowa, Kansas, Montana, Nebraska, North Dakota and South Dakota

The appeal also involved the Nebraska Public Power District, the states of Missouri, Nebraska, North Dakota, South Dakota, several businesses and several Indian tribes.


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