American Rivers * Environmental Defense
Izaak Walton League of America
National Wildlife Federation
Montana Wildlife Federation
North Dakota Wildlife Federation
South Dakota Wildlife Federation
Nebraska Wildlife
Federation
Iowa Wildlife Federation
Kansas Wildlife Federation
March 19, 2004
Rose Hargrave
Master Manual Project Manager
U.S. Army Corps of Engineers
12565 West Center Road
Omaha, Nebraska 68144-3869
Dear Ms. Hargrave:
This letter constitutes the formal comments of American Rivers, Environmental
Defense, the Izaak Walton League of America, the National Wildlife Federation,
the Montana Wildlife Federation, the North Dakota Wildlife Federation, the South
Dakota Wildlife Federation, the Nebraska Wildlife Federation, the Iowa Wildlife
Federation, and the Kansas Wildlife Federation on the Final Environmental Impact
Statement (FEIS) for the Missouri River Master Water Control Manual Review and
Update. By reference, these comments also incorporate the extensive detailed
comments submitted to the Corps on February 28, 2002 by American Rivers and
Environmental Defense on the Revised Draft Environmental Impact Statement (RDEIS);
additional comments submitted by our organizations on drafts of this EIS since
1994; and our comments submitted on December 15, 2003 to the U.S. Fish &
Wildlife Service (Service) regarding the U.S. Army Corps of Engineers’ (Corps)
November 2003 Biological Assessment.
We first want to express our concern that the Corps is violating
well-established National Environmental Policy Act (NEPA) procedures by planning
to announce the Record of Decision on the FEIS during the early afternoon today,
while not closing the public comment period on the FEIS until the end of the day
today. This clearly indicates the Corps has no intention of adequately or
carefully considering public comments on the FEIS, has already made a decision
about future dam operations on the Missouri River under the revised Master
Manual, and is forging ahead with plans to ignore the Endangered Species Act (ESA)
and the mountain of scientific evidence that point to the need to restore more
natural flows on the Missouri River. By not even giving the impression of
considering public comment on the FEIS, the Corps’ action can only be best
described as arbitrary and capricious.
Consistent with our comments on the RDEIS, we again urge the Corps to
immediately comply with federal law by ending dam operations that jeopardize the
existence of federally endangered and threatened species and by implementing dam
operations that will both lead to the recovery of these species and result in
economic benefits for the basin. Corps analysis has consistently shown that
alternatives that restore significantly more of the natural hydrograph than the
Preferred Alternative (PA) have few if any adverse economic impacts and
dramatically greater economic benefits. Of the alternatives presented in both the RDEIS and the
FEIS, the Corps’ own analysis supports the selection of FW30 as the preferred
alternative because it provides greater environmental and economic benefits. As
a starting point for a true adaptive management approach, however, our
organizations have agreed to support either the alternative identified as GP2021
or the alternative identified as FW20, which are comparable. FW20 and GP2021
both capture all the elements of the Reasonable and Prudent Alternative (RPA)
recommended by the Service in the November 2000 Final Biological Opinion on
Missouri River dam operations, as well as the December 2003 amendment to that
biological opinion.
We also note that the Corps, without any supporting technical analysis or
citations to supportive hydrogeomorphic studies and in contradiction of its own
modeling, asserts that flow changes analyzed for FW20 and GP2021 would not be
sufficient to create and maintain sandbar habitat for least terns and piping
plovers. Elsewhere, however, the Corps has stated that flows only 25,000 cfs
above navigation levels would be adequate to create and scour such habitat if
maintained for sixty days. The Corps’ analysis demonstrates flow changes that
include a 30,000 cfs spring rise for 30 days would increase economic benefits
over the CWCP. While we do not believe the Corps has demonstrated that FW20
would not help create habitat, we agree that larger and more sustained flows
would certainly be more beneficial. The Corps should therefore also immediately
analyze an alternative that incorporates a spring rise of 25,000 cfs for sixty
days using different rules regarding frequency and constraints, such as every
three or five years. To the extent the Corps has relied on its unsubstantiated
claims that FW20 would not be adequate to create sandbar habitat, the failure to
analyze an alternative that the Corps admits would do so using flow is arbitrary
and capricious.
General Comments on the FEIS
In reading the FEIS, it is clear to us that the PA is, for all intents and
purposes, the status quo Current Water Control Plan (CWCP). The PA does not
incorporate any of the flow modifications required by the Service in the 2000 or
2003 biological opinions, and thus will continue to jeopardize the existence of
the pallid sturgeon, the interior least tern, and the piping plover on the
Missouri River. Until operation of the Missouri River main stem system is
reformed to include higher spring dam releases and lower summer dam releases,
listed species will creep inexorably closer to extinction and additional species
will be listed as endangered and threatened. Currently, more than 70 Missouri
River species are listed by basin states or the federal government as rare,
threatened, or endangered. Implementation of this status quo PA will do nothing
to reverse this trend.
In the FEIS, the Corps has presented no new or useful scientific evidence
that supports implementation of the PA without meaningful flow changes. All of
the basin state fish and wildlife management agencies, the Service, and
extensive research studies like the Benthic Fish Study unanimously support the
restoration of some semblance of the Missouri’s natural hydrograph to improve
ecosystem health. Further, the PA directly contradicts the findings of the
National Academy of Sciences, which in its January 2002 Missouri River report
concluded:
"Degradation of the Missouri River ecosystem will continue unless
some portion of the hydrologic and geomorphic processes that sustained the
pre-regulation Missouri River and floodplain ecosystem are restored –
including flow pulses that emulate the natural hydrograph…The current dam
and reservoir operation… to provide a steady and reliable 9-foot deep
navigation channel… run(s) counter to established river science, in which
a large degree of natural hydrograph variability is essential to biological
productivity and species richness."
After nearly fifteen years of work, it is exceedingly disappointing that the
Corps has come to the conclusion that status-quo operations will suffice on the
Missouri River. The FEIS continually mentions the Corps’ goal of achieving
"balance" in river uses, but yet the PA, like nearly every other
alternative modeled by the Corps during this process, continues to maximize
benefits to flood control and navigation at the expense of endangered and
threatened species, the entire Missouri River ecosystem, and the economic
potential of the river. In addition, the PA fails to provide meaningful water
conservation on the Missouri River system, especially during severe droughts
like we are experiencing in the basin today.
The Corps’ own analysis in both the RDEIS and the FEIS clearly show the
environmental and economic benefits that would be accrued by implementing
GP2021. Yet, the Corps instead ignored its own findings and selected a PA that
rejects environmental and economic improvements in the basin. This suggests an
appalling lack of leadership on the part of the Corps, and this action fails to
live up to the notion of good government.
Specific FEIS Concerns
The PA rejects the Service’s flow requirements that are widely supported by
established river science. Instead, the Corps chose to support a plan of habitat
creation through artificial means. The potential benefits to pallid sturgeon and
other species from the Corps’ proposed habitat work are dubious at best, and,
by the Corps’ own admission, extremely expensive. Thus, it is hard to
understand why the Corps failed to choose an alternative that incorporated flow
changes that would instead create viable habitat more cheaply and more
effectively.
The RDEIS and FEIS show that environmental alternatives incorporating the
Service’s flow change requirements perform better than the PA both
environmentally and economically. The entirety of Missouri River science shows
that flow changes directed at endangered and threatened species like the pallid
sturgeon, interior least tern, and piping plover will have positive benefits for
many native riverine species on the Missouri, and at the same time will improve
conditions for recreation on both the reservoirs and river stretches.
Considering potential future water depletions that are likely to occur, GP2021 performs as well as or
better than the PA both environmentally and economically.
The following list summarizes some of our chief concerns about the PA and its
implementation. We focus this discussion on GP2021 because the Corps appears to
present greater focus on this alternative as opposed to FW20, but both are
highly comparable.
Shallow Water and Physical Habitat on Lower River:
Tern and Plover Nesting Habitat:
Overall, GP2021 provides 26% more
river sandbar nesting habitat for the tern and plover than the PA. There is a
77% increase in the Gavins Point reach alone from the GP2021 alternative over
the PA. The Gavins Point reach is the most important nesting area on the river
for these two bird species. Nesting habitat created by unbalancing the
reservoirs in the PA is primarily only useful for plovers, as terns are
dependent on river habitat. It is a falsehood that creating reservoir
shoreline nesting habitat suffices as long-term useable habitat for these two
bird species.
Wetland and Riparian Habitat:
The environmental alternatives
incorporating flow changes result in a 2,000-3,600 acre increase in wetland
habitat over the PA. Though the PA shows an increase in riparian habitat, this
is likely being modeled as drier land that will quickly be converted to
agriculture or other uses, thus deleting this habitat "gain."
Spring Rise:
The PA includes no commitment on the part of the Corps to
ever implement increased spring flows on the river. The FEIS states numerous
times that there is already a spring rise that occurs on the Missouri below
the mouth of the Platte River in Nebraska. In reality, there are really only
about 400 miles of river below Kansas City that experience flows that could be
even remotely considered to resemble some semblance of historic patterns. The
PA, therefore, would essentially leave nearly 1,500 miles of river (from the
upper end of Ft. Peck Lake to Kansas City) exceedingly altered and devoid of
vitally important natural flow patterns.
Missouri River Navigation:
Amazingly, the PA actually results in an
increase in navigation benefits. No explanation is provided in the FEIS, but
reports are the Corps believes there are navigators eagerly awaiting formal
implementation of the PA and its unnatural river flows to start utilizing the
river. This lacks credibility, given the fact that cargo tonnage on the river
has been declining since 1977, and since the two major barge companies that
still utilize the river announced in January they would not be using the river
this year. This again points to the Corps’ insistence on maximizing river
operations for a phantom industry at the expense of other river uses and the
health of the river itself.
Mississippi River Navigation: GP2021 results in a cost savings to
Mississippi River barge operators of roughly $4 million annually over the PA.
Despite the fact that the Missouri River is not authorized to be managed for
Mississippi River uses, this reveals yet another economic benefit of managing
the Missouri River more naturally.
Lower River Recreation:
The FEIS perpetuates the Corps’
long-standing myth that the deeper the water in the lower the river, the
higher the use of the lower river for recreation. Reality disputes that
contention, as a river that actually looks and acts more like a river will
host a greater amount of recreation than a deep, fast, dangerous ditch.
Reports from the Missouri Department of Conservation clearly show that
recreational use of the Missouri River in that state have increased
dramatically over the past two summers, which corresponds to two years of
lower summer flows. Thus, the Corps continues to wrongly penalize alternatives
like GP2021 that incorporate lower summer flows in analyzing recreation
benefits.
Lower River Power Plants:
The FEIS provides no empirical evidence to
support the conclusion that lower summer flows as proposed in GP2021 pose any
significant risk to power generation on the lower river. Data from the Middle
Missouri River Biomonitoring and Assessment project, of which American Rivers
is a financial supporter, show no changes in fish and invertebrate communities
attributable to thermal discharges from lower river power plants, even during
the low flow periods of the past two summers. We are unaware of any reported
permit violations or significant impacts to power generation at these lower
river power plants during these low flow periods.
Reliance on Habitat Restoration:
The PA also perpetuates the myth that
habitat restoration alone will lead to species and ecosystem recovery.
According to established river science, this is nonsense. Even the National
Academy of Sciences addressed this issue in its report, concluding that
habitat restoration efforts alone on the river are "insufficient to
noticeably recover ecological communities and fundamental physical processes
in the Missouri River ecosystem."
Compliance with the Endangered Species Act
The Corps fails to fully analyze compliance with the ESA in the FEIS. Any
analysis provided is conclusory. To the extent the Corps is relying on its most
recent Biological Assessment (BA) submitted to the Service last November, this
document is highly flawed and invalid, as outlined in our comments on the BA
referenced earlier. The FEIS does not address our comments on the BA or, in any
meaningful way, previous comments to the Corps regarding its obligations to
comply with the ESA. The Corps’ own regulations stipulate that a Master Manual
must assure compliance with all other applicable laws, such as the ESA.
The FEIS analyzes various flow alternatives that the Service indicated would
be a necessary component of compliance with the ESA, but the FEIS does not
analyze various claims by the Corps that it can avoid these flow alternatives
and pursue alternative means of ESA compliance.
Since impacts on endangered and threatened species are arguably the single
greatest environmental impact of flow changes, any claims that the Corps could
address such concerns through means other than flow changes should have been
carefully analyzed in the FEIS. Such an analysis would include, for example, the
scientific support for and costs of using mechanical habitat manipulation alone
to try and fully meet ESA concerns. The Corps’ failure to include such
analysis makes the FEIS invalid.
Failure to Provide a Reasoned Analysis for the Choice of the PA
The FEIS is fundamentally flawed for many reasons, including that it never
articulates the standard used to "balance" competing interests. The
only language offered on the choice of the PA is highly conclusory. It appears
the Corps may have ultimately used a method that is based on avoiding any
significant adverse change to any category of economic interest. The Corps never
explains why such a standard should be used; this is arbitrary and capricious
because it assumes that avoiding deviations from the status quo should be the
overriding goal of the Master Manual, rather than balancing interests to meet
contemporary needs of the basin. This kind of approach furthermore has the
automatic effect of elevating the importance of the least economically valuable
interests. For tiny economic interests such as Missouri River navigation, even a
small change represents a large percentage change. But, for large interests like
hydropower, a large change represents a tiny percentage change. This approach is
the equivalent of managing the national economy in a manner that treats
percentage impacts on the Frisbee industry as of equivalent concern for the same
percentage impact on the auto industry.
No one would disagree there are enormous environmental interests at stake on
the Missouri River. Nor can there be any disagreement that beyond even the
minimum requirements to avoid jeopardy and unlawful take under the ESA, the
Corps also has the affirmative obligation to carry out programs to benefit and
conserve endangered and threatened species and similar obligations to try to
benefit fish and wildlife under the Fish and Wildlife Coordination Act and under
the Flood Control Act. In light of these statutory obligations, we believe that
in addition to compliance with the jeopardy and take provisions of the ESA, the
rational standard for balancing economic and environmental interests is that the
Corps should implement the flow changes that will avoid jeopardy to listed
species and have the greatest environmental benefits by restoring the natural
hydrograph to the greatest extent practicable without sacrificing significant
economic benefit. Of course, it is therefore even more compelling that the Corps
implement at a minimum alternatives that restore portions of the natural
hydrograph and generate net economic benefits.
Faulty Economic Analysis
In the absence of flows, the Corps proposes to comply with the ESA by
engaging in additional physical habitat restoration efforts at a cost of roughly
$41 million per year. Even on the assumption that such efforts would work, this
is a true economic cost. The Corps therefore must include these costs in its
economic analysis of the costs of alternatives that do not implement flow
changes. Since these costs dwarf the economic impacts of virtually any
alternative and have not been taken into proper consideration, the Corps’ economic analysis
is fundamentally faulty and the resulting decision invalid.
The economic analysis is also fundamentally flawed because the Corps
continues to input economic benefits for commercial navigation on the Missouri
River based on an estimated annual traffic level of roughly 1.5 million tons or
more. The Corps is well aware that the two main commercial barge operators
remaining on the Missouri announced in January that they will not be navigating
on the river this summer, in response to changes in market conditions. This
means that at most only a tiny fraction of the 1.5 million tons will move on the
river this year. While a small amount of asphalt may continue to be shipped by
barge on the Missouri, that is a small fraction of the recent commerce. These
losses on the Missouri mirror reductions in traffic on other tributaries of the
Mississippi River and reflect fundamental economic changes in agriculture. The
Corps’ failure to account for this dramatic change is arbitrary and
capricious. It means that the Corps is essentially planning to continue to
operate the river primarily for navigation when there are essentially no barges
on the Missouri River.
Contradictions
The FEIS is filled with contradictions that undermine its legitimate
usefulness. For example, the FEIS presents results based on models developed and
provided to the public long ago that estimate significant increases in sandbar
habitat available to terns and plovers from spring rises set forth in GP2021 or
FW20 and FW30. However, later in the FEIS, the Corps states these spring rise
levels are not adequate to create and scour sandbar habitat. The Corps provides
absolutely no technical support for these contradictory claims.
Furthermore, in a deposition last fall, Mr. Larry Cieslik of the Corps stated
that the Corps believed flows of 60,000 cfs for sixty days would be adequate to
create and scour habitat. Under this conclusion (as opposed to the conclusion in
the FEIS), the Corps should have analyzed an alternative that involved at least
occasional spring flows of 60,000 cfs for sixty days. Achieving these flows
would require a rise above full-navigation levels of 25,000 cfs. The Corps’
own analysis showed that a rise of 30,000 cfs for 30 days would increase
economic benefits on the river. It is likely that this size of flow would not be
needed once every three years. The Corps’ failure to analyze such an
alternative is arbitrary and capricious.
Similarly, the Corps’ own hydropower analyses in the FEIS found that flow
changes through alternatives such as GP2021 or FW20 increased total hydropower
economic benefits. Yet, the Corps offers alternative forms of analysis implying
that the effects are negative. There is no effort to reconcile these conflicting
analyses. It remains highly unclear from the FEIS if the Corps has relied on
analyses other than its own in making its decisions on the PA.
An additional problem with these alternative energy analyses is that the
Corps failed to address the enormous flaws in these alternative analyses pointed
out by David Marcus in earlier comments, including simply mistaken factual
assumptions about thermal discharge limits at various power plants and gross misstatements of the costs of replacement
power. Another obvious problem is that the Corps ignores the fact that there is
no evidence that any power plant has ever been required to reduce power
generation because of lower flows. The Corps assumes that the power plants it
hypothesizes that might be impacted by low summer flows because of permit
requirements regarding cooling water discharges would do absolutely nothing to
address these issues so that they could continue to operate at full power. The
NPPD Cooper plant, for example, is already today operating under a consent
decree that allows it to discharge at up to 110 degrees to avoid permit
violations. To come into compliance with a 95-degree temperature restriction,
NPPD will have to implement some new cooling requirements regardless of any
changes to the Master Manual. It is likely that Cooper could make
extraordinarily cheap changes to do so, by discharging, for example, to a
re-opened backwater pond, as at least one power plant does on Iowa. None of this
is analyzed or discussed.
Conclusion
These comments provide a brief summary of our many concerns about the FEIS
and the PA. The Corps insists on ignoring river science, its own economic
analyses, public opinion, and the law by rejecting the Service’s flow
modification requirements and forging ahead with a status quo plan for Missouri
River dam operations.
The GP2021 alternative provides substantial environmental, recreation, and
economic gains for the Missouri River basin in comparison to the PA. This
compromise alternative combines sound and, in some cases, legally required fish
and wildlife objectives with improvements in the economies of both the Missouri
River basin and the nation. Traditional uses of the river will remain intact,
yet the Missouri will more adequately support native fish and wildlife, a
variety of recreational opportunities, and economic growth, and will better
balance the needs of the upper basin and lower basin states.
We therefore urge the Corps to instead adopt GP2021 as the Preferred
Alternative in the FEIS and implement that alternative as soon as possible.
Thank you for the opportunity to provide these comments. If you have
questions, please contact Chad Smith at 402-423-7930 or csmith@amrivers.org.
Sincerely,
Chadwin B. Smith, Director
Nebraska Field Office – American Rivers
6512 Crooked Creek Drive
Lincoln, Nebraska 68516
