Water, land and litigation: Lawsuit renews vigorous debate over future of Missouri River

03/05/2014 3:33 PM

03/06/2014 10:48 AM

More than 200 farmers and landowners in the Missouri River basin sued the federal government Wednesday, accusing the U.S. Army Corps of Engineers of improper decisions they say led to costly flooding.

The landowners claim the corps de-emphasized flood control over the past decade in favor of protecting fish and wildlife along the waterway.

That choice, they said, led to floods — and an unconstitutional taking of their land.

“Something is wrong,” said Roger Ideker, a Holt County, Mo., farmer and lead plaintiff in the lawsuit. “The recent flooding we have had is not normal.”

The legal dispute is likely to take years to play out. A corps spokeswoman declined to comment on the case.

The lawsuit figures to renew an unsettled national argument over supervision of the river. The dispute involves a variety of interests who often see conflicting priorities for the channel, from recreation, water supply and power users to environmentalists, shippers, farmers and downstream users.

That discussion will intensify this spring as the river’s water starts rising again. The high-risk flood season began March 1.

“I hope that there is a speedy resolution to this case,” U.S. Rep. Sam Graves of Missouri said in an email. “It brings to the forefront the ongoing debate over the management priorities of the Missouri River.”

Graves — a Republican who in Congress represents some of the suing landowners — has long argued for greater emphasis on flood control along the basin.

In contrast, Caroline Pufalt, a volunteer with the Missouri chapter of the Sierra Club and a participant in discussions concerning the river, said the lawsuit had little merit.

“(But) I really feel, if we all sat down, we could figure this out,” she said. “If we came together in good faith.”

Under federal law, the corps must manage the river by balancing eight authorized purposes: flood control, navigation, water supply, irrigation, power, recreation, water quality and wildlife preservation.

It pursues that goal by managing discharges from six large upstream reservoirs, each designed to hold excess water during the spring and release it slowly over the rest of the year.

When the system works as designed, water is available for boating, fishing, barge traffic, supporting wildlife and generating electricity — while minimizing flooding.

But the plaintiff property owners from five Midwestern states claim the corps decided in the mid-2000s to focus on just one of the uses — protecting wildlife — at the expense of spring flood control. The corps, they allege, changed its rules in order to return the river to a more natural state and provide additional spawning and breeding areas for threatened species.

In 2011, they say, that choice led to the worst flooding along the upper reaches of the basin in modern history.

“The federal government changed its policies and procedures to choose environmental interests over flood control, and to sacrifice plaintiffs’ land and other property in the process,” the lawsuit says.

Those property owners say the corps also changed the way it manages dikes and dams along the river.

The corps has long claimed the 2011 flood could not have been prevented. Excessive water from melting snow and spring rains, it says, poured trillions of excess gallons of water into the basin. That, the corps contends, made floods inevitable.

More broadly, the corps denies changing rules enough to cause unanticipated flooding. Updates to management plans in 2004 and 2006 did not change “the volume of storage in the system reserved for flood risk reduction,” the corps’ 2014 Missouri river operating plan says.

As it does every spring, the corps is watching the Missouri carefully. This January, it said it expected runoff to slightly exceed normal this spring.

The corps said its reservoir levels are currently lowered to make room for coming snow melts and spring rains.

Wednesday’s lawsuit seeks unspecified damages from the federal government. The landowners’ lawyer said the damages could exceed $250 million.

The lawsuit does not ask the court to order the corps to prioritize flood control. The landowners’ lawyer — Dan Boulware of the Kansas City-based Polsinelli law firm — said only Congress can make that decision.

“It is going to happen again unless something changes,” he said. “We hope that Congress will do something about it.”

Yet Congress has struggled unsuccessfully for years to reach an agreement on how to manage the river.

Upstream interests seek to keep the reservoirs as full as possible to provide recreation, power and water in upper Great Plains states. Some downstream interests work to keep water in the reservoirs in the spring so there will be enough to support shipping in the summer and fall.

Yet keeping the reservoirs full in the spring means less storage for runoff. When that runoff exceeds capacity — as it did in 2011 — the corps has no choice but to release the water, contributing to downstream floods.

After the 2011 floods, several Missouri River working groups were assembled, with governors, senators and House members discussing new guidelines for the corps to more accurately address the competing concerns.

To date, there has been no overall agreement.

Kenneth Reeder is a plaintiff who owns businesses and homes in a flood-prone area in St. Joseph. He says the public should pay for his losses because it receives benefits when his properties are inundated.

The public has realized “around $52 billion in savings to other infrastructure by parking that water on top of us for 25 weeks,” he said. “You have to compensate us for that.”

Boulware, though, said his clients don’t want the government to buy their flooded property. Instead, they want their damages covered but for the land to remain in private hands.

“It’s tough for them to abandon the land and move out,” he said, “and they shouldn’t have to.”

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