WASHINGTON - January 15 - Conservationists served notice to the U.S. Army Corps of Engineers yesterday that it must operate its Missouri River dams in accordance with a "Biological Opinion" issued in 2000 -- rather than an amended opinion issued in December of 2003 -- to avoid another lawsuit over its operations this summer.
After reviewing the amended opinion, conservationists have concluded it would lead to continued decline of the Missouri's native fish and wildlife and therefore does not pass muster as a matter of law. The groups also believe the amendment is likely to prolong the dispute over management of the river than to resolve it.
"The cover of the cookbook says compromise, but following the recipe leads to more conflict," said David Hayes with Latham & Watkins, who represents most of the conservation groups in the litigation. "Without explicit standards for determining river flows each year, there is no end in sight to the crossfire of lawsuits up and down the river."
Last summer, a federal judge ruled that the Army Corps was obligated to restore more natural flows to the Missouri River below Gavins Point Dam in accordance with a Biological Opinion issued in 2000 by the U.S. Fish and Wildlife Service.
The Service amended that document in December 2003 to include two passages that the Army Corps might exploit to deviate from those flows. This is inconsistent with the Endangered Species Act -- and is an open invitation for lawsuits from all parties along the river affected by these decisions.
The first of these is a passage that the Army Corps might attempt to use to depart from recommended flows by making a self-serving "demonstrat[ion] [of] tangible impacts to other project purposes." This provision does not satisfy the legal and scientific requirements of the Endangered Species Act, and could invite further lawsuits from all parties challenging the Army Corps' definition of 'tangible' -- and its choice of which purposes to protect.
The Army Corps also might attempt to use loose language in the amended BiOp that appears to invite the Corps to create 1200 acres of shallow water habitat in the river floodplain and then increase summer flows to "to take advantage of that habitat and more fully meet project purposes." This provision also invites further litigation by failing to provide benchmarks for evaluating the quality of this habitat and whether it warrants flow modifications.
"After nearly 15 years of delay, it's time that the Corps sets about modernizing management of the Missouri River," said Rick Duncan with Faegre & Benson, Minneapolis attorney for the conservation groups. "Unfortunately, the Corps has amply demonstrated that it will seize upon any pretext to perpetuate the status quo, regardless of the ecological decline and economic stagnation it is causing along the river."
The 2003 amendments were prepared by a newly convened "SWAT Team" of scientists, who continued to hold that the Army Corps dam operations were driving the pallid sturgeon towards extinction, but reversed that finding for the least tern and the piping plover.
The team concluded that this justified scaling back the recommended modifications in the operations of the dam system. Conservationists note that as recently as April 2003, state agencies informed the U.S. Fish and Wildlife Service that they were not aware of new biological information that would warrant revising the 2000 opinion.
"We continue to be uncomfortable with a document of such enormous import that was pulled together so hastily," said John Kostyack with the National Wildlife Federation. "The Bush administration owes it to the Missouri River basin to submit the amended document for review by a panel of independent experts immediately."
"Economic revitalization and ecological restoration go hand-in-hand along the Missouri River, the Army Corps' stubborn refusal to enter the 21st century is inexplicable," said Paul Hansen, executive director of the Izaak Walton League of America.
Copies of the "60 Notice" are available at http://www.amrivers.org/docs/200460daynotice.pdf