Senator hears update on 2011 flood court case, concerns about Army Corp priorities
Charles Grassley, Iowa's Senior Senator in the United States Congress, makes a point of staying in close touch with his constituents.
He visits each of the 99 counties in the state every year for town hall meetings and round table discussions, and has done so every year for the past 37 years. And he “tweets” about his activities on Twitter several times on most days.
Grassley was just shy of county number 94 when he arrived at the Fremont County History Museum on Aug. 24 for a round table discussion about the Missouri River recovery program, the Draft Environmental Impact Statement, and the lawsuit concerning the Army Corps of Engineers' role in the flood devastation of 2011.
Leo Ettleman of the group Responsible River Management introduced the presenters at the meeting. Seth Wright of the Polsinelli law firm in Kansas City, Missouri, represents the plaintiffs in the Idecker Farms vs. the USA lawsuit.
Dan Engemann is the Vice Chair of Missouri River Recovery Implementation Committee (MRRIC).
Tom Waters is a farmer and the chairman of the Missouri Levee and Drains District Association.
Among the 38 people in attendance were several elected officials or their representatives, including Sidney mayor Paul Hutt and Fremont County supervisor Terry Graham. Emily McKern and Charlie Johnson from the offices of Senator Joni Ernst and Congressman David Young, respectively, were present, as were local residents and stakeholders.
Attorney Seth Wright updated those gathered on progress of the Idecker Farms vs. the USA lawsuit, filed by 372 plaintiffs from six states—Iowa, Missouri, Kansas, Nebraska, North Dakota, and South Dakota. The plaintiffs are farmers, residents, and small business owners along the Missouri River. To expedite the legal process, their number was reduced to 44 “bellwether” plaintiffs, three of whom were present at the meeting.
The plaintiffs are suing for unlawful taking—the destruction of their homes, farms and businesses in the Missouri River floods of 2011, violating the Fifth Amendment. They are attempting to prove that the Army Corps of Engineers caused the flooding.
Over a six-week period last spring, federal judge Nancy Firestone of the Court of Federal Claims presided over the trial in Kansas City and Washington, D.C. Wright came to the Sidney meeting to educate people about what the Army Corps of Engineer has done to the river, and what they are telling people.
“What they tell the public, what they are telling MRRIC, and most importantly, what they are telling Congress, is just not right,” said Wright.
Wright said, “Judge Firestone saw that in the trial. I don't think she's very happy about it.
“We're very confident that we are going to win.”
Using photographs and diagrams, Wright gave an overview in of the Missouri River's changing contours from the 19th century to the present, through natural causes or man-made “mitigation.”
He emphasized the channelizing of the river after Congress passed the Flood Control Act (FCA) of 1944 and the Bank Stabilization Statute.
The intent of the FCA was to improve boat navigation, eliminate flooding, and develop the floodplain for farming. Indeed, said Wright, stabilizing the river banks so levees could be built and farmland protected has led to “some of the best farmland in the entire country, right here mostly in southwest Iowa and northwest Missouri.”
But Fremont County, Iowa, and Atchison and Holt Counties in Missouri are “ground zero for (the Idecker) case,” where the majority of the flooding has occurred and, said Wright, “not coincidentally” where you find most of the Corps mitigation projects.
“And mitigation in that case has worsened the situation, is that your point?” asked Senator Grassley.
“It hasn't worsened it, it's what's causing the flooding,” answered Wright.
Wright then focused on the effect of the 1973 Endangered Species Act (ESA) on the Corps' priorities, calling that legislation “the crutch that the Corps has used to get a lot of money, to do construction, and to change the river.”
Wright compared the Corps' master manuals of operations from 1979 and 2004. The authorized purpose of the original FCA—its first priority, as reflected in the Corps' 1979 manual—was to control flooding. The lowest priority was fish and wildlife preservation, Wright said.
But in 2004, the Corps amended the master manual to assert that “Congress did not assign a priority to these purposes,” but rather that all functions would be balanced “to obtain the optimum development” in decisions about storage and release of water from reservoirs.
“The ESA is now controlling their operations,” said Wright. The Corps is “changing the flow of the river and making it more flood-prone” for the sake of natural habitats.
Dan Engemann, Vice Chair of MRRIC, then gave an overview of the membership and purposes of the group. Seventy members represent a variety of local, state, tribal, and federal interests.
Their purpose is to find common ground in order to have an impact on government decision making as it affects the Missouri River's future.
Twenty-nine stakeholder members are selected by the Corps, with input from the US Fish and Wildlife Service (FWS).
In addition, eight states, 29 American Indian tribes and 15 federal agencies are represented in MRRIC membership.
The organization has created an Independent Science Advisory Panel made up of six scientists who will be able to take a look at the science governing the activities of MRRIC and provide an “outside (impartial) view.”
Its purpose is informing “adaptive management” of the river, or “stopping things that don't work,” said Engemann. “Especially for those of us in agriculture who are living and working on the river, we need some certainty at this point.”
Engemann gave an example of “things that don't work” by pointing to fish chutes, which in theory provide fish a shallow habitat in which to spawn, but in fact are “anything but shallow water. You ended up with chutes that are deeper than the navigation channel.
“The fish weren't using them. The fish were being found below St. Louis on the Mississippi River,” he said.
In introducing his remarks, Tom Waters of the Missouri Levee and Drains District Association made an observation about the meeting with Senator Grassley to that point.
“We’re at a Missouri River meeting, and what have we heard so far? Fish and birds and adaptive management and mitigation projects. What about water supply? Navigation? Cooling nuclear power plants? Electrical turbine plants? What about those economical uses of the river? What about what’s near and dear to the folks in this room—flood control?
“When we talk about the fish and the birds and wildlife and the environment, it’s a long way from flood control, protecting farmlands, protecting communities, and protecting our livelihoods.”
Waters offered a critique of the Draft Environmental Impact Statement (DEIS), about which the Corps and the FWS are now consulting together after a lengthy public comment period.
He reviewed the six alternatives the DEIS presents for developing a plan for operation of the dams, releases, and flows on the Missouri River, including no action, releases with two spring rises, construction without flooding and no spring rise, and so on.
Waters showed aerial photos comparing water levels during rises at Omaha and Kansas City in 1996 years ago versus recently. More water travels into the river faster now, so there is more flooding, as was proven in 2011.
During Q & A following the presentations, Senator Grassley asked Seth Wright about the next steps in the Idecker case. If Judge Firestone decides in favor of the plaintiffs, will it not mean an appeal in federal circuit court?
Yes, replied Wright, and the Corps will claim that nothing has changed in the way they operate the flow of the river.
Then what caused the flood?
“Their defense is, ‘Mother Nature’ caused this,” said Wright.
“What is the contribution of wildlife to the ecosystem?” asked the Senator.
“They (the Corps) don’t have to answer that question,” replied Tom Waters.
Senator Grassley was asked about the state of government today. “A lot of people are worried about, how are we going to get anything done?” said Grassley. His answer sparked a gust of laughter from the group: “Let’s just say it this way—‘fish or cut bait.’”