[Senate Hearing 107-809]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 107-809
 
                   WATER RESOURCE MANAGEMENT ISSUES 
                         ON THE MISSOURI RIVER
=======================================================================

                                HEARING

                               before the

                    SUBCOMMITTEE ON WATER AND POWER

                                 of the

                              COMMITTEE ON
                      ENERGY AND NATURAL RESOURCES
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

 TO RECEIVE TESTIMONY RELATING TO WATER RESOURCE MANAGEMENT ISSUES ON 
                           THE MISSOURI RIVER

                               __________

                             JULY 10, 2002


                       Printed for the use of the
               Committee on Energy and Natural Resources








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               COMMITTEE ON ENERGY AND NATURAL RESOURCES

                  JEFF BINGAMAN, New Mexico, Chairman
DANIEL K. AKAKA, Hawaii              FRANK H. MURKOWSKI, Alaska
BYRON L. DORGAN, North Dakota        PETE V. DOMENICI, New Mexico
BOB GRAHAM, Florida                  DON NICKLES, Oklahoma
RON WYDEN, Oregon                    LARRY E. CRAIG, Idaho
TIM JOHNSON, South Dakota            BEN NIGHTHORSE CAMPBELL, Colorado
MARY L. LANDRIEU, Louisiana          CRAIG THOMAS, Wyoming
EVAN BAYH, Indiana                   RICHARD C. SHELBY, Alabama
DIANNE FEINSTEIN, California         CONRAD BURNS, Montana
CHARLES E. SCHUMER, New York         JON KYL, Arizona
MARIA CANTWELL, Washington           CHUCK HAGEL, Nebraska
THOMAS R. CARPER, Delaware           GORDON SMITH, Oregon

                    Robert M. Simon, Staff Director
                      Sam E. Fowler, Chief Counsel
               Brian P. Malnak, Republican Staff Director
               James P. Beirne, Republican Chief Counsel
                                 ------                                

                    Subcommittee on Water and Power

                BYRON H. DORGAN, North Dakota, Chairman
BOB GRAHAM, Florida                  GORDON SMITH, Oregon
RON WYDEN, Oregon                    JON KYL, Arizona
TIM JOHNSON, South Dakota            LARRY E. CRAIG, Idaho
DIANNE FEINSTEIN, California         BEN NIGHTHORSE CAMPBELL, Colorado
MARIA CANTWELL, Washington           RICHARD C. SHELBY, Alabama
THOMAS R. CARPER, Delaware           CHUCK HAGEL, Nebraska

  Jeff Bingaman and Frank H. Murkowski are Ex Officio Members of the 
                              Subcommittee

                      Patty Beneke, Senior Counsel
                        Colleen Deegan, Counsel








                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                                                                   Page

Baucus, Hon. Max, U.S. Senator from Montana......................     1
Bond, Hon. Christopher S., U.S. Senator from Missouri............     8
Burns, Hon. Conrad, U.S. Senator from Montana....................    15
Carnahan, Hon. Jean, U.S. Senator from Missouri..................    13
Daschle, Hon. Tom, U.S. Senator from North Dakota................     6
Dorgan, Hon. Byron L., U.S. Senator from North Dakota............     1
Fastabend, Brigadier General David A., Commander, Northwestern 
  Division, U.S. Army Corps of Engineers.........................    20
Frink, Dale L., North Dakota State Engineer, and Engineer-
  Secretary to the North Dakota State Water Commission...........    38
Hagel, Hon. Chuck, U.S. Senator from Nebraska....................    16
Hall, Tex, Chairman, Three Affiliated Tribes, Fort Berthold 
  Indian Reservation, New Town, ND...............................    46
Hawks, Bill, Under Secretary of Agriculture, Marketing and 
  Regulatory Programs, Department of Agriculture.................    24
Hofer, Douglas, Director, Division of Parks and Recreation, South 
  Dakota Department of Game, Fish and Parks......................    42
Johnson, Hon. Tim, U.S. Senator from South Dakota................    11
Sibley, Margaret, Director, Office of Policy, Bureau of 
  Reclamation, Department of the Interior........................    25
Smith, David P., Deputy Assistant Secretary for Fish and Wildlife 
  and Parks, Department of the Interior..........................    22
Smith, Hon. Gordon, U.S. Senator from Oregon.....................     5
Wells, Mike, Chief of Water Resources, State of Missouri.........    40

                               APPENDIXES
                               Appendix I

Responses to additional questions................................    57

                              Appendix II

Additional material submitted for the record.....................    63


                   WATER RESOURCE MANAGEMENT ISSUES 
                         ON THE MISSOURI RIVER

                              ----------                              


                        WEDNESDAY, JULY 10, 2002

                               U.S. Senate,
                   Subcommittee on Water and Power,
                 Committee on Energy and Natural Resources,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 9:30 a.m. in 
room SD-366, Dirksen Senate Office Building, Hon. Byron L. 
Dorgan presiding.

          OPENING STATEMENT OF HON. BYRON L. DORGAN, 
                 U.S. SENATOR FROM NORTH DAKOTA

    Senator Dorgan. We will call the hearing to order this 
morning. This is a hearing in the Subcommittee on Water and 
Power. We are conducting a hearing on a matter that is of great 
significance to the heartland of our Nation, that is, the 
management of the Missouri River and the issues pertaining to 
the delays in issuing the revised master manual.
    The fight over water is as old as people living in caves 
wearing loincloths, and it does not seem to stop. This is a 
fight over the management of the dams along the Missouri River, 
over the management of the reservoirs and the river itself, and 
for whose benefit that river has been managed.
    Let me say that I have a self-interest here. My State is 
host now to a flood that came and stayed forever, a flood the 
size of the State of Rhode Island. In exchange for a Rhode 
Island-sized flood in my State, that stayed forever, other 
States got significant benefits. People in the State of 
Missouri, for example, at some point could not play softball in 
the spring in their parks because they had flooding that 
destroyed everything, and the downstream States, from Missouri 
on up, they have got the flood benefits that came from the 
installation of these dams. We got the flood that came and 
stayed.
    We were promised a certain series of benefits from this. 
What would be the interest of a State like North Dakota hosting 
a Rhode Island-sized flood forever? Well, the interest was in 
the Pick-Sloan plan. The people of North Dakota were told that 
if they would play host to a flood that comes and stays forever 
in order to provide benefits for others, we will provide you 
certain benefits.
    Among the benefits that we would have expected to occur 
would be the management of this system in a manner that is fair 
to all of the interests in the river. I must say, however, that 
the mechanism by which that management exists today is out of 
balance with the concept of fairness for the upstream States. 
We are managing the river now based on an idea that was hatched 
in 1943 and 1944. In the 1980's--excuse me, 1970's, it was 
clear that that idea, that management plan had to change to 
meet the realities of the new day. Some 30 and 40 years had 
passed. There were new realities, and the suggestion was by the 
Corps of Engineers and others that the management plan should 
change to meet those new realities.
    The Missouri River directly affects over 10 million people 
in eight Missouri River Basin States, North Dakota, South 
Dakota, Iowa, Nebraska, Missouri, Montana, Kansas, and Wyoming. 
The management of this river is significant to the people in 
all of the States, not just the Northern States, the Southern 
States, but not just the Southern States, also the Northern 
States.
    The Missouri River master manual, the master control manual 
for managing this water, was originally published in 1962. The 
system is made up of six main stem dams and reservoirs, 
including Fort Peck, Garrison, Oahe, Big Bend, Fort Randall, 
and Gavins Point. The mainstream system has a storage capacity 
of 73.4 million acre feet, making it the largest reservoir 
system in North America.
    As I mentioned, in recognition that a 40-year plan needed 
to be updated, the Corps of Engineers began revising the master 
manual in 1989, and I would like to have a chart--that is a 
rather lengthy chart--just to show in terms of a timeline where 
we are. This plan has been underway now for 12 years, and most 
of us are fairly well out of patience. So I thought we would 
show--each of these marks is a year--over 12 years what has 
happened with respect to the master manual plan. Let me just 
make the point that in 1989 the study was initiated, and the 
proposal was it would take 6 months, and the master manual 
would be revised in May of 1990.
    As you can see, it does not appear the Corps has met this 
date. May 1990 came and went, and then year after year after 
year. We will have a great deal of discussion this morning 
about what has happened up in this area, because in this area 
we have really a thimbleful of policy and a barrelful of 
politics, but you will see what has happened. In May 1990, the 
expectation was that this master manual would be revised. We 
sit here now in July 2002 and we have no master manual revised, 
and this describes the failure. In my judgment, that failure is 
an outrage. We should expect, all of us who live on that river 
we should expect this master manual revision to be completed, 
and completed soon.
    Let me ask that we go ahead and take this away. We think we 
all understand what all these marks mean. Year after year after 
year after year, 12 years of stalling and delay, and what has 
happened in most recent years is that promises have been made 
and not kept.
    Now, let me just make a couple of other comments. We were 
finally told that May 31 of this year is when we would receive 
the preferred alternative and the final plan. Well, May 31 has 
come and gone, as well. We have not seen a preferred 
alternative. The Corps has not published a final EIS. We are 
now told the revisions have been remanded to the Fish and 
Wildlife Service and the Corps of Engineers for, quote, 
``informal consultations.''
    As far back as November 30, 2000, Brigadier General Carl 
Strock said there is significant agreement between the Corps 
and the Service on the known biological attributes necessary to 
recover the listed species. Now apparently they have to have 
more consultations, which has meant they have not met the dates 
they had promised us.
    Navigation interests yield about $7 million in economic 
benefits annually. That is far, far lower than was expected 
much, much earlier when these dams were built. Upstream 
recreation and tourism benefits yield about $80 million 
annually, and those are increasing, while the barge traffic 
continues to decline.
    We have GAO reports that say that the Corps' Missouri River 
management plan was based on assumptions about the amount of 
water needed for navigation and irrigation in 1944, but they 
are no longer valid, and the plan does not reflect the current 
economic conditions in the Missouri River Basin. We have study 
after study. I mentioned the GAO. The Congressional Research 
Service and many other studies talk about the way this river 
has been managed to the detriment of upstream States. The GAO 
pointed out the Corps was giving recreation a lower operating 
priority, even if this lower priority results in decreased 
system benefits. The GAO said it sees no appropriate basis for 
the Corps view.
    The delays that have existed with respect to this 
management plan are totally unacceptable. These are devastating 
consequences to people who live in my State and other States. 
They should expect our government to be able to move with some 
dispatch and make thoughtful decisions.
    I personally am out of patience. I think it is an outrage 
that we have been promised for 12 years a revised operating 
plan, and that operating plan has not been made available.
    Let me tell you about Mel and Kathy Etsler. Mel and Kathy 
Etsler, an older couple in North Dakota, bought a marina with 
all of their life savings. It had a restaurant, a little bait 
shop, and docks. They were on the reservoir. They were very 
hopeful about their future. Well, the water is now 2 miles from 
their marina. Mel and Kathy Etsler are just one more example of 
people who are affected by the incompetent management of this 
river and the dam systems. We are going to talk a lot about 
that today, but the point is, this has to stop. This makes no 
sense.
    Some of the people who are concerned about this and upset 
about this say, well, let us take the dams out, then. Just let 
the water go. If somebody else wants the water, let them have 
it. Let them have it all at once. That is not a thoughtful 
approach in my judgment. We have dams that harness and regulate 
that river, but they have to be managed. These dams and the 
river must be managed for the benefit of all the States, but 
that has not been the case, regrettably.
    So we have a lot to say and a lot to do here today. This 
will be a rather lengthy hearing. We have four of our 
colleagues who wish to testify at the outset, and I am going to 
recognize them in a moment. Senator Daschle will be here. I 
will call on a couple of my colleagues. Senator Smith is the 
ranking member on this subcommittee, and let me call on him. 
When Senator Daschle comes--I believe he is going to be here at 
9:45--I will recognize him, and then all three of the other 
members of the Senate, and then we will come back to opening 
statements, if that is satisfactory.
    Senator Smith, would you proceed?
    [A prepared statement from Senator Baucus follows:]
    Prepared Statement of Hon. Max Baucus, U.S. Senator From Montana
    Mr. Chairman, the Missouri River and its tributaries are the 
lifeblood of Montana, supporting our vital agricultural and ranching 
industries, and world class recreation and fishing. That's why I'd like 
to commend you for holding this important hearing today on the future 
management of the Missouri River. I know we share similar interests in 
updating the management of the Missouri to better reflect the actual 
needs of the Missouri River Basin states.
    Mr. Chairman, I'm frankly getting tired of saying the same thing 
again and again, and hearing the same thing again and again from other 
Senators and my constituents--after more than 50 years, it's time to 
change the Missouri River Master Manual. It's past time. We've been 
struggling with this issue for more than 12 years and its time for the 
Army Corps and the Administration to step up to the plate and make a 
decision. The status quo is just not acceptable.
    As we all know very well, the current Manual was designed to 
support steady downstream flows for a barging industry that never 
materialized. Managing the river to support a marginal annual barging 
industry leaves upstream reservoirs and boat ramps high and dry, 
particularly during droughts like the one Montana has suffered for more 
than four years. This has a devastating impact on the vital recreation 
economies of upstream states, particularly in rural states like 
Montana. It's not much good for the fish that folks like to catch, or 
the endangered and threatened species that depend on the river.
    And, it's another blow to communities in eastern and central 
Montana that are struggling through tough times, including drought and 
low commodity prices. It's high time the Corps recognized the key role 
recreation plays in the economies of local communities along the 
Missouri. It's imperative that the Manual be changed to ensure adequate 
lake levels in upstream reservoirs.
    But, as has happened time and time again, the Corps has failed to 
meet even its own deadlines for revising the Master Manual. Apparently, 
a decision on a preferred alternative has been delayed indefinitely. 
What's going on here? As I have stated before, the recent lawsuits by 
the states of South Dakota, North Dakota, Montana and Nebraska over 
Missouri River water should have been a wake up call to the Corps, not 
a reason for further delay.
    To add insult to injury, Mr. Chairman, I've received several 
communications from the State of Montana, including the Governor's 
office, that indicate to me Montana may not derive any real benefit 
from any of the Corps' proposed alternatives for changing the 
management of the Missouri River. This is so even though Montana will 
bear the brunt of any adverse effects of the proposed ``spring rise'' 
from Fort Peck Dam. I supported the concept of the spring rise, as did 
the State of Montana, on the condition that the revised manual result 
in higher levels at Fort Peck Lake for recreation and fish, 
particularly during drought years.
    So, not only will we not see a revised Master Manual at any point 
in the near future, Montana won't necessarily benefit from any revised 
Manual that is eventually released. I've already indicated to the Corps 
that I hope the continued delay in releasing a preferred alternative 
for the Master Manual will result in a better outcome for Montana.
    In short, Mr. Chairman, Montana is home to the headwaters of the 
Missouri River. The water that originates in Montana, and the power 
that it produces, provides a tremendous benefit to downstream and 
surrounding states. Moreover, the Missouri and its tributaries are the 
lifeblood of Montana, supporting our vital agricultural and ranching 
industries, and world class recreation and fishing. We in Montana just 
want a fair shake when it comes to how that water is managed. I don't 
think that's too much to ask of our fellow Missouri River states or of 
this Administration.
    Life along the Missouri River is not what it was 50 or 60 years 
ago. The economic, social and environmental conditions are not the 
same. Why then do we continue to rely on a Master Manual that was 
written for a world that no longer exists? It's time for a change, Mr. 
Chairman.
    Thank you again for accepting my testimony.

         STATEMENT OF HON. GORDON SMITH, U.S. SENATOR 
                          FROM OREGON

    Senator Smith. Thank you, Mr. Chairman. I appreciate your 
willingness to conduct this oversight hearing on the Missouri 
River water resource management issues. The issues and efforts 
to modify the Corps of Engineers master manual for Missouri 
River operations have been the source of controversy for well 
over a decade now. Therefore, it is not surprising that the 
most recent time frame for release of the final environmental 
impact statement has slipped from the administration's self-
imposed May 2002 target date.
    The current efforts to review the master manual were 
initiated by the Corps in 1989. In fact, the first draft 
environmental impact statement was released by the Corps in 
1994 with a preferred alternative. It subsequently took the 
last administration until 1998, over 4 years, to issue a 
preliminary revised draft environmental impact statement.
    Much of the controversy is ostensibly being driven over how 
to manage the river for three species listed under the 
Endangered Species Act. They are, the endangered interior least 
tern, the threatened piping plover, and the endangered pallid 
sturgeon.
    There is no consensus about how best to proceed in this 
basin, which drains parts of eight States and empties into the 
Mississippi River. All river navigation and flood control 
downstream of Gavins Point dam to New Orleans will be affected 
by any modifications to the Corps' master manual.
    Just last year, the Senate voted 100 to nothing that the 
Secretary of the Army during fiscal year 2002 may consider and 
propose alternatives for achieving species recovery other than 
the alternatives specifically prescribed by the United States 
Fish and Wildlife Service in the biological opinion. The 
Secretary shall consider the views of other Federal agencies, 
non-Federal agencies and individuals to ensure that other 
congressionally authorized purposes are maintained. Such an 
effort takes time, but I would rather have river operations 
done right than done hastily, and I think we need to give the 
administration time to consider the proposed alternatives to 
those measures being prescribed by the Fish and Wildlife 
Service.
    In fact, the Governors of Arkansas, Kentucky, Louisiana, 
Mississippi, Tennessee, Minnesota, Missouri, Wisconsin, and 
Illinois have signed letters to the President expressing 
concerns about the serious impacts that changes to the Missouri 
River operations will have on the Mississippi River, and urging 
more disclosure of documents before any final decisions or 
recommendations are made.
    I would like to submit these letters, Mr. Chairman, for the 
record, as well as a resolution by the Southern Governors 
Association.* This resolution urges the Corps to consult with 
affected inland waterway States prior to endorsing any proposal 
that would alter the current edition of the manual.
---------------------------------------------------------------------------
    * The letters and resolution have been retained in subcommittee 
files.
---------------------------------------------------------------------------
    While I do not represent a State affected by the master 
manual, the situation raises a key resource issue that has 
plagued the Pacific Northwest as well for over a decade. We are 
maintaining and managing public lands, and in some cases entire 
watersheds, only for ESA-listed species. There seems to be 
insufficient, at least, regard for the economic or human 
impacts, or the impacts on other species.
    We are now contemplating managing an eight-State river 
basin with impacts on 35 million people downstream for the 
supposed benefit of three listed species. Even then, there is 
concern about the effect of the proposed low summer and fall 
flows on the sturgeon. We need to recognize as a society that 
we cannot continue to manage large ecosystems only for the 
benefit of one or two species. I believe we can improve our 
environmental stewardship without forgetting our human 
stewardship.
    I look forward to hearing from today's witnesses. Again, 
Mr. Chairman, thank you for holding this hearing.
    Senator Dorgan. Senator Smith, thank you very much, and 
with the forbearance of Senator Burns and Senator Hagel I would 
like to call on the Senators who have come. We will call on our 
colleagues for statements following the testimony of the four 
Senators, if that is satisfactory.
    Let me call on the majority leader, Senator Daschle. 
Senator Daschle, we appreciate your appearance here today.

          STATEMENT OF HON. TOM DASCHLE, U.S. SENATOR 
                       FROM SOUTH DAKOTA

    Senator Daschle. Thank you very much, Mr. Chairman, and I 
appreciate very much my colleagues' indulgence. I thank you as 
well for holding this hearing. It is one of the more important 
questions, I think, facing our country and certainly the upper 
Great Plains.
    We are going to be talking about fundamental questions 
about what value should guide the management of our country's 
natural resources in this hearing, and I welcome your 
addressing those questions. As the bicentennial of the Lewis & 
Clark expedition approaches, we are faced with a stark choice. 
As we are attempting to take the necessary steps to recover the 
health of the historic Missouri River, the question is, are we 
going to perpetuate the status quo and continue to allow it to 
die a slow death, or are we going to take another direction?
    For over 40 years, we in South Dakota and throughout the 
Missouri River Basin have watched the Corps of Engineers slowly 
kill this national treasure. The Corps has straightened out the 
channel, changed the flow, and basically turned one of 
America's greatest rivers, the river of Lewis and Clark, into a 
drainage ditch, and the Corps has done all of this to prop up a 
tiny downstream barge industry that never came close to meeting 
its original expectations, and that has declined to the point 
where it is now worth only a few million per year.
    The Corps' current effort to update the Missouri River 
master control manual, the policy document that governs the 
Corps management of the river from Montana to Missouri, has 
been a frustrating and time-consuming exercise. It demonstrates 
not only that the Corps can be indifferent to the environment, 
but also that the relationship between the Corps and the barge 
industry often drives the Corps to ignore science and the law 
in order to protect that special interest.
    Throughout this review process, the Corps has bent over 
backwards to protect the $7 million per year barge industry and 
its own program to maintain the barge channel. Ironically, 
maintaining the barge channel costs taxpayers over $7 million a 
year, more than the annual value of the barge industry itself.
    The Corps says that it needs to protect river navigation. 
Consider the facts. There are 72 barges on the river. In any 
given week during the busy summer months, you will be lucky to 
see a dozen barges operating on the river hauling commercial 
loads. The others were in dry dock or were parked, and empty. 
The Corps management priority should be a concern to all 
Americans. They are certainly of deep concern to South 
Dakotans. The Missouri runs down the center of our State, and 
is a major source of income, recreation, and pride.
    More than 40 years ago, the Corps built dams up and down 
the Missouri River in order to harness hydroelectric power. In 
return, it was expected to manage the river wisely, and in 
compliance with national laws. The Corps has not kept that 
public trust. Today, the Missouri River is dying, in 
significant measure due to the Corps' lack of concern about its 
ecology.
    The river currently nurtures three species currently on the 
endangered species list, the piping plover, the least tern, and 
the pallid sturgeon, whose survival is jeopardized by Corps 
management, and the Corps continues to bend over backwards to 
block the management changes necessary to meet the requirements 
of the act and recover the health of the river, but this goes 
way beyond three species. In fact, I would argue this has so 
much more to do with the ecology of the river and the country 
surrounding it than it does the three species itself.
    Recent lawsuits against the Corps filed by South Dakota, 
North Dakota, and Montana illustrate the frustration with the 
willingness of the Corps to sacrifice the health of this river 
with the overwhelming cost of that management regime in the 
States. In recent years, studies were commissioned to determine 
how to restore the health of the river. We now know what needs 
to be done. The Fish and Wildlife Service has stated in a 
formal biologic opinion that the flow of this river needs to 
change more closely to mimic its natural rhythm, higher spring 
flows and lower summer flows.
    Under the law, the Corps knows it should take these 
management changes, and yet here we sit, waiting and wondering 
if the Corps will ever find the courage and will do what is 
right and lawful. After 12 years of study and review of the 
science and economics of river management, the Corps had 
promised that it would announce long-awaited changes to the 
management of the river by May 31. That date has come and gone 
without any Corps announcement.
    In addition, it has been reported that the White House has 
intervened to defer any final decision until after November. 
That this dodge may not be surprising is not any more 
surprising than it is disappointing to people who care about 
the fate of the river, but my hope is that management of the 
river will be evaluated as a public policy issue, not as a 
political or a parochial issue.
    The committee can contribute significantly in that regard 
by considering the record of the Corps management of this 
historic river, reviewing the mountain of ecological and 
economic analyses of management options, and pondering the 
enormity of what is at stake with this decision. In the end, I 
hope you will join in urging the Corps to issue new management 
plans for the river as soon as possible, one that implements 
the recommendations of the Fish and Wildlife Service and begins 
the process of restoring this magnificent river to its health. 
That would be an appropriate way to celebrate the bicentennial 
of the courageous expedition of Lewis & Clark.
    Thank you, Mr. Chairman and members of the committee.
    Senator Dorgan. Senator Daschle, thank you very much. I 
understand that you are going to have to leave, is that 
correct?
    Senator Daschle. That is correct.
    Senator Dorgan. With the permission of the other Senators I 
will call on the rest of the panel. Senator Bond, would you 
like to go next? It does not matter. You had actually requested 
to testify first at this hearing.

      STATEMENT OF HON. CHRISTOPHER S. BOND, U.S. SENATOR 
                         FROM MISSOURI

    Senator Bond. I thank you, Mr. Chairman, and I just wanted 
to advise the distinguished majority leader that I will be 
talking about some of his comments if he wishes to stay for a 
moment or two.
    Senator Daschle. I am well represented.
    [Laughter.]
    Senator Bond. Okay. I thank the majority leader, and I 
thank you, Mr. Chairman, for giving me this opportunity to 
testify. You will be pleased and probably surprised to know 
that these will be the most concise Missouri River remarks I 
have ever delivered, as a special treat.
    You have noted, as I think most of us understand, that few 
issues are harder to sort out than water disputes. Many 
elements of the dispute are complex, but the fundamental 
political problem is quite simple. Mr. Chairman, you want the 
river managed to support your State's needs, and others want 
the river managed to support their State needs. Your so-called 
Rhode Island flood in your State is actually a series of 
reservoirs that you all value very highly for their 
recreational benefits, and we commend you for that. There are 
many different sides, and we only hope that the folks in the 
administration will be able to find the correct balance.
    This spring in Missouri we saw nine people die because of 
flash flooding that occurred when rain in the basin raised the 
river from below normal to above flood stage in less than 72 
hours. This increase from 7 to 28 feet in 72 hours was without 
the 2 to 3 feet extra that the Fish and Wildlife Service says 
might make the pallid sturgeon feel more lovable.
    Now, just last week, the Fish and Wildlife Service, in an 
incredible precedent, has shut down the entire Lower Missouri 
River as an alternative to allowing the usual practice of 
letting the Corps move a few interior least tern eggs that are 
resting on a small sand bar. The power of unelected bureaucrats 
may be convenient to some now, but giving the unelected 
absolute power is not what we were sent here to do.
    For downstream Missouri and Mississippi River States, every 
proposed option so far is bad. What the chairman insists that 
the administration adopt is bad for Missouri, Iowa, Illinois, 
Arkansas, Kentucky, Louisiana, Mississippi, and Tennessee, just 
to name a few States.
    Geography may not be everyone's strong suit, so I remind 
everyone listening that the Missouri does not need any space. 
It is connected to the Mississippi River, which gets as much as 
two-thirds of its water during the summer from the Missouri.
    While our Missouri Department of Natural Resources has a 
number of recommendations on habitat improvement, our DNR 
thinks proposed flow modifications are poor economic and 
environmental policy. As indicated by Senator Smith, the 
Southern Governors Association opposes it, 99 waterways and 
levee districts have opposed it, all the major farm groups, 
including the Farm Bureau, Wheatgrowers, Corngrowers, Soybean 
Association and others oppose it.
    Missouri farmers alone ship nearly $1 billion in grain on 
our affected waterways. Contrary to the assertion of the 
distinguished majority leader, the benefits of water 
transportation are not limited to some insignificant $7 million 
figure. A study done for the Corps of Engineers shows that 
farmers in the heartland exporting to the world market save 
over $200 million in shipping costs each year because of the 
competition that the barges provide to railroads, which 
otherwise would hold a monopoly. That is why the Maritime 
Administration under the Bush administration and under the 
Clinton administration opposed the preferred alternative that 
the upstream States support.
    In summary, I believe that the Government should protect 
people from flooding, not cause floods. It should produce more 
efficient transportation options, not railroad monopolies. The 
plan we oppose fails because the value to fish habitat is 
dubious, while the risk to people is very real.
    I appreciate that you want to keep the lake level stable 
and high, but while this may be good for you, it is bad for all 
the downstream States. That was confirmed by testimony from 
Omaha to St. Louis to Memphis to New Orleans. I assure you that 
officials in Louisiana know their river reach better than you 
and I do, and better than the Northwest division officials do.
    With regard to the preposterous suggestion somehow that the 
new administration is dragging its feet in not adopting the 
Dakota-preferred plan, permit me to add some context. First, 
the previous administration, the Clinton administration ducked 
the issue for 8 years. In fact, as the chairman knows, there 
was, and he said, there was a preferred alternative back in 
1994 that had a spring rise and a low flow, and the Clinton 
administration shelved the plan and sent the Corps back to the 
drawingboard. I have the letter which announced in 1995 that 
they would come back with a draft in 1997. We did not see 
anything until 2001.
    Back in the Clinton administration, Secretary of 
Transportation Pena and Deputy Secretary of Agriculture 
Rominger were very critical of the previous spring flood and 
low flow alternatives in 1995. These are Clinton administration 
officials, representing farmers and our transportation 
networks, and I might say parenthetically that in addition to 
transportation, the 1.4 million acres of fertile farmland in 
Missouri protected from every year flooding is larger than the 
State of Delaware.
    Second, let us be clear, the issues are further complicated 
because on October 29, 2001, our friend the senior South Dakota 
Senator testified, I strongly support both the spring rise and 
the split season, but on April 24 of this year he called on the 
Bush administration to support halt, stop, end water releases 
to stabilize water levels. After this flip-flop, if I were in 
the administration I would be sending out a search party for 
the real South Dakota position. Apparently they support a so-
called natural spring flood, but only if their lakes are at 
unnaturally high stable levels. So much for a natural 
hydrograph.
    Finally, what the administration is apparently doing is 
what every Senator here voted to instruct them to do last year 
in Public Law 107-66, which is, as Senator Smith indicated, to 
consider and propose alternatives for achieving species 
recovery other than the alternatives specifically prescribed by 
the U.S. Fish and Wildlife Service.
    Further, the language directed the Secretary to ensure that 
other congressionally authorized purposes are maintained. 
Furthermore, the Senator from South Dakota included language 
requiring that the Secretary not accelerate the schedule to 
finalize the record of decision. Again, we all voted for this, 
and no one attempted to modify it.
    So it is obvious to me why this should take some extra 
time. First, it is more important that it be a balanced and 
correct decision than it be fast. It is an excruciatingly 
difficult balancing act.
    Second, the administration is doing what Congress told it 
to do.
    Third, this administration, the Bush administration 
deserves a fraction of the 8 years of indecision we saw during 
the previous administration.
    Fourth, what Lower Missouri and Mississippi Governors want 
is no less important for this administration to consider than 
what the Dakotans want. This matter is so important to the 35 
million downstream citizens that I hope the administration will 
think twice before embracing the Dakotan plan, that it should 
devise and adopt a balanced plan.
    Since we are all State patriots today, I add in closing 
that according to the latest Fish and Wildlife Agency funding 
survey, while the States of North Dakota and South Dakota 
raised from their own State sources $4.1 million for fish and 
wildlife conservation measures in 2000, the State of Missouri 
raises over $98 million every year, so I hope we can all agree 
that following Missouri's lead might be a good place for 
upstream conservationists to start.
    I proposed a great number of measures to restore habitat on 
the Missouri and Mississippi without harm to people, and I 
pledge to help the citizens in the Dakotas improve their 
recreational industry. If you wish help, Mr. Chairman, in 
providing assistance to the fine couple who have the marina 
that is 2 miles from the water, I will join you in supporting 
funding to solve their problem.
    Again, I respect the priorities of our good Dakota 
citizens, and I hope that you will understand the priorities of 
our citizens, and I would ask just to keep the record complete, 
that we put in the public comments of the current Maritime 
Administration and USDA in the record. I believe they are 
probably more substantive than the sanitized testimony some 
committee obviously and hastily threw together to ensure that 
nothing is said, because the previous comments speak to the 
needs of farmers and some of the miscalculations of 
transportation data.
    Also, just for your information, I would submit for the 
record a letter of March 1995 from the Department of 
Agriculture signed by Acting Secretary Richard Rominger, and a 
letter of April 5, 1995 submitted by Secretary Federico Pena, 
and also I have for your information and elucidation lengthy 
testimony I gave in Cape Girardeaux, letters from Congressmen, 
mayors, and Mississippi Governors, and the Southern Governors 
Association so you will have a complete record.*
---------------------------------------------------------------------------
    * The information referred to above has been retained in 
subcommittee files.
---------------------------------------------------------------------------
    Thank you.
    Senator Dorgan. Senator Bond, thank you very much.
    Senator Johnson.

          STATEMENT OF HON. TIM JOHNSON, U.S. SENATOR 
                       FROM SOUTH DAKOTA

    Senator Johnson. Well, thank you, Chairman Dorgan for 
holding this timely and important oversight hearing into the 
water resource management issues on the Missouri River. I would 
like to recognize the presence of Doug Hofer, who is director 
of the division of parks and recreation for the State of South 
Dakota, who will testify later at today's hearing.
    Doug and other folks at Parks and Recreation have performed 
an absolutely Herculean job to keep open the boat ramps and 
recreational sites.
    As you know, Mr. Chairman, the mainstream reservoirs in the 
Upper Missouri River Basin provide a wide array of recreational 
opportunities for hundreds of thousands of anglers, sportsmen, 
and wildlife enthusiasts. Unfortunately, a long drought in 
combination with the failure of the U.S. Army Corps of 
Engineers to update the Missouri River master water control 
manual threatens the long-term health of the Missouri River.
    South Dakotans understand the cycle of drought, even the 
once-in-a-generation drought currently gripping the region. The 
failure of the Corps to follow the law and revise a decades-old 
river management plan is simply inexcusable. The U.S. Fish and 
Wildlife Service has determined that the current Corps 
operation of the Missouri River violates Federal law, violates 
the Endangered Species Act, and the failure to restore more 
natural flows to the Missouri River will result in the Corps 
continuing to be in violation of the ESA. The path is clear, 
and action is required, but yet the Corps continues to delay.
    Throughout the spring, to maintain the necessary water 
flows below Gavins Point Dam, the Corps released water from 
Lake Sharp, Lake Oahe, and Lake Francis Case, negatively 
impacting the multi-million recreational and wildlife economy 
of South Dakota. This is not a small matter for my State. Last 
year, 3 million visits were made to the Missouri River 
recreational sites in South Dakota, contributing to an $84 
million industry. In comparison, Corps mandated water releases 
to support downstream navigation will cost my State more money 
this year than the entire economic benefits of the negligible 
barge industry.
    The Corps failure to follow the law and revise the master 
manual has real consequences for South Dakotans. While the 
Corps haphazardly fluctuated the water levels of the South 
Dakota reservoirs, marina operators such as Ken Dooley of 
Platte, South Dakota, have suffered. The Corps decision to 
lower Lake Francis Case by 3 feet this past spring left Ken and 
other marina operators scrambling to keep the ramps operational 
and businesses open. In response the State of South Dakota 
filed a lawsuit against the Corps to halt releases from Lake 
Oahe, that lawsuit led by our Republican Governor, Governor 
Janklow.
    Although litigation is not a long-term solution to the 
problem, it is the only position left open after a decade of 
delay and indecision.
    Failure to revise the master manual in time for the 2003 
operating season will result in the Corps breaking the law and 
disregarding the U.S. Fish and Wildlife Service biological 
opinion, and violating the Endangered Species Act. Last year, 
top-ranking Army officials pledged to Congress that the Corps 
would end 12 years of indecision and choose a new management 
plan guided by scientific analysis, not guided by what upstream 
members of the Senate want, or downstream members of the Senate 
want, but by scientific analysis. This is best not made an 
upstream-downstream political issue. What we need is to allow 
these decisions to be made by the best scientific and economic 
analysis available so that the balance is reached that 
accommodates the best interests of our entire Nation and the 
health of the Missouri River.
    Recognizing the seriousness of a process that began in 
1989, the Corps was expected to release a final environmental 
impact statement with a preferred alternative for a new water 
flow plan in May 2002. The Corps delayed, pleading the need to 
consult with U.S. Fish and Wildlife Service and other Federal 
agencies still further. However, on June 14, the Bush 
administration indefinitely postponed releasing the identified 
preferred alternative, throwing another roadblock to revising 
the master manual, and threatening the sustainability of 
America's longest river.
    This consistent delay must end. The science and the law is 
clear, and the Corps must implement the necessary changes to 
sustain the viability of the Missouri River, not to do what 
upstream Senators want, or do what downstream Senators want, 
but to sustain the viability of the Missouri River. The Corps 
must be held accountable for violating the public trust and 
called to task for failing to implement a new adoptive 
management approach for the Missouri.
    I look forward to today's hearing and receiving testimony 
from all witnesses, and again I appreciate this very timely 
hearing on your part, Mr. Chairman. Thank you.
    Senator Dorgan. Senator Johnson, thank you, and finally, 
Senator Carnahan, you may proceed.

         STATEMENT OF HON. JEAN CARNAHAN, U.S. SENATOR 
                         FROM MISSOURI

    Senator Carnahan. Thank you, Mr. Chairman. I thank you for 
this opportunity to testify today on an issue that is of great 
importance to both of our States, and I thank you, too, for 
granting my request to allow a representative from the Missouri 
Department of Natural Resources to testify today, and I also 
want to thank my colleague, Senator Bond, for his ongoing and 
vigorous support of this issue over the years.
    We are joined by the Missouri congressional delegation in 
support of this issue as well, and the Missouri Department of 
Natural Resources and many other entities in my State. We stand 
together as one voice on this topic. We are resolved to 
preserve the Missouri River for its many uses while protecting 
the environment for future generations.
    I am here to address the economic and social upheavals that 
would be certain in my State if drastic changes are made in the 
management of the Missouri River. Generations of families have 
worked hard to build homesteads and communities on the fertile 
land of the Missouri River Valley. These families help feed the 
world while providing the economic and social backbone for 
their communities. They rely on sound flood control measures to 
protect both their investments and their communities. I share 
their outrage at the possibility that a Government-imposed 
spring rise could threaten their livelihood. I share their 
concern for unreasonably low summer flows that halt barge 
traffic and further increase transportation costs for farmers 
along the Missouri and the Mississippi Rivers.
    These hard-working families deserve to till their land 
without the threat of flooding from a man-made spring rise. 
They are not alone in depending on the current management of 
the river. There are millions of Missourians who rely on the 
river's current management for power and drinking water. The 
proposed lower summer flows will force powerplants in Missouri 
to reduce or halt production at a time when it is needed most, 
and low summer flows will also jeopardize the safe and stable 
drinking water supplies in municipalities of all sizes 
throughout Missouri.
    I want to mention an incident that occurred back on October 
10 2000. Then presidential candidate George Bush spoke to a 
group of farmers in one of our Mississippi River communities, 
and he said, and I quote, ``I stand with Missouri farmers. I 
believe we can save species without affecting the farmers' way 
of life.''
    Well, I agree with the President. I hope he will honor his 
commitment to Missouri farmers. Unfortunately, last Friday, in 
an effort to protect two shorebirds, his administration 
announced a decision to stop water releases that are critical 
to Missouri's municipal water supplies, powerplants, and 
navigational interests. This decision was made in spite of 
significant increases in the number of interior least terns and 
piping plovers over the last few years without changes in the 
downstream flows. These increases are due in part to mitigation 
efforts and other prudent conservation programs that I am proud 
to support. Such programs protect endangered species without 
endangering livelihoods.
    The recent decision to stop upstream water releases will 
likely halt barge traffic along a 250-mile stretch of the 
river. The decision denies already struggling Missouri River 
farmers an additional mechanism to get their product to market 
in a cost-effective manner, and this decision sets a dangerous 
precedent for future river management decisions. It puts 
downstream powerplants, water supplies, and entire communities 
at risk. It allows Federal agencies to wreak havoc in thousands 
of lives.
    I hope that families and communities in my State can 
sometime soon have a degree of certainty when making long term 
decisions and investments. Standing with Missouri farmers means 
our agricultural communities can count on government to work 
with them to protect and not destroy generations of hard work. 
Standing with Missouri farmers means not jeopardizing their 
power sources and drinking water supplies. Standing with 
Missouri farms means no manmade spring rise and no man-made low 
summer flow. I am confident that a thorough evaluation will 
lead to the conclusion that dramatic changes in the Missouri 
River master manual will lead to economic disaster and destroy 
generations of hard work.
    Thank you, Mr. Chairman, for this opportunity to reflect 
the feelings of the many Missourians whose livelihood and 
future depends on the flow of the Missouri River.
    Senator Dorgan. Senator Carnahan, thank you very much. I 
think the testimony from the four colleagues has been an 
excellent review of the fundamental disagreement that exists 
between upstream and downstream interests here. I am going to 
defer questions. We have the opportunity to ask questions of 
each other all day, every day working here in the Senate, but I 
want to call on Senator Burns and Senator Hagel, who did not 
have an opportunity to make statements, and I would ask before 
we do that, are you intending to ask questions of this panel? 
We have eight other witnesses today, and if you have questions 
we will ask the panel to remain. If you do not have questions, 
we will ask, then, for your opening statements.
    Senator Burns. They might have questions.
    Senator Dorgan. Will you be having questions, Senator 
Burns? If not, let us thank you very much for your preparation, 
for your testimony here today, and your contributions. Your 
full statements will be made a part of the permanent record, 
and we again appreciate your continuing work on this issue.
    Why don't we ask panel 1 to come forward, and as they get 
seated, then I am going to ask Senator Burns and Senator Hagel 
for their statements, and then we will begin the testimony from 
the first panel. As I call them forward--Brigadier General 
David Fastabend, Commander, Northwest Division, U.S. Army Corps 
of Engineers, David Smith, Deputy Assistant Secretary for Fish 
and Wildlife and Parks, U.S. Department of the Interior, Hon. 
Bill Hawks, Under Secretary of Agriculture, Marketing and 
Regulatory Programs, U.S. Department of Agriculture, and 
Margaret Sibley, Director of Policy, Bureau of Reclamation, 
U.S. Department of the Interior. We appreciate very much the 
presence of all four of these witnesses, and if you would 
please take your place at the table, I am going to call on my 
colleague, Senator Burns, first for his comments, and again let 
me thank him for his forbearance.

         STATEMENT OF HON. CONRAD BURNS, U.S. SENATOR 
                          FROM MONTANA

    Senator Burns. Well, I thank the chairman for holding this 
hearing, and we are where it all begins, in Montana. The 
Missouri River, I have lived on both ends of it and traveled 
every State in between, and I would say that this really is not 
a fight. We had the Missouri River Basin put together a long 
time ago, and they ran the river pretty good I think, but this 
is years and years ago, so my institutional knowledge of the 
river goes way back to a level of agriculture and of course 
management of the river and all this, and I will be like Yogi 
Berra, this is deja vu all over again.
    We in Montana have heard conflicting stories. It all 
depends what suits you as to the position you take on the 
management of the river. It is a tremendous resource that 
middle America has, and we have seen the floods come and go, we 
have seen dry weather, but keep in mind basically this argument 
that we are having right now is a result of 5 years of drought 
in the intermountain West. It is the volume of water that flows 
from one end, from Three Forks, Montana, where three rivers 
make up the Missouri, the Galatin, the Jefferson, and the 
Madison.
    We have had no snow pack. Especially that river is fed by--
the majority of the volume of that river comes off of the Rocky 
Mountains, so we are talking about agriculture and the effects 
of it. If you want some endangered species, and there is only 
three been mentioned here, I can give you another list, 
including the plover.
    If you all want some black-footed ferrets, we can get some 
of those for you. We can get you some grizzly bears, wolves--we 
have got a lot of black-footed ferrets, and we have to contend 
with ours, too, so whatever we do to that river effects also 
another endangered species called the American rancher and 
farmer from the North Dakota line clear to Three Forks, 
Montana.
    I was at Fort Peck last Saturday, and I will tell you that 
reservoir is low. If you want a spring rise--and as you know, 
once you let water go it does not come back up that river, I 
will tell you that.
    We also produce power at Fort Peck, and in the spring rise, 
or the release of the water, we are producing a lot of power 
that is not worth much because there is a lot on the grid. Then 
comes midsummer, when electricity becomes a little bit scarce, 
we are way down. Just talk to the Western Area Power 
Administration and they will tell you about how that affects 
them.
    So we all have our different challenges. We are building a 
new warm water fishery at Fort Peck to feed our recreation 
industry. We believe that is very, very important, and of 
course when we come to the discussion of the master manual, 
why, that brings up another one, but actually I think we have 
one agency that probably exerts a little more influence on the 
management of that river than basic common sense, and that is 
what sort of tilts the debate whenever we start talking about 
that magnificent river.
    So yes, we are going to try to hang on to all of our water, 
as much as we can. We know the spring rise, there is no part of 
that river that experiences erosion that actually takes private 
land into the river and is never replaced, between Fort Peck 
and Culbertson all the way to basically--maybe all the way to 
Williston on some of those releases.
    Do we build into the manual that the land lost because of 
that sudden release of water out of Fort Peck, are those 
landowners compensated, because I have got a rancher down there 
who says he loses 20 acres a year. Now, pretty soon that goes 
to bite on you a little bit, and we hear no compensation for 
that, and yet in low years they say take your pipes out of the 
water because we cannot irrigate.
    Are we going down this thing of a mentality of what 
happened in the Klamath Basin of California? Senator Smith is 
exactly right, the policies that we have here should be 
consistent, should be consistent and not be subject to a 
change, or the whims, but basically what we are talking about 
is the volume of water and when it is released, and common 
sense has to take place on that.
    So we know what drought is. We know the people that depend 
on the river. We understand that when there is drought and low 
water that all of us must share and sort of feel the pain all 
the way from Three Forks to St. Louis, and we would participate 
in that, because we understand what drought is all about, 
because we all need that river, and a common sense view of it 
and sitting down with the States and coming up with a plan--you 
know, you can plan--we know what the snow pack is. We measure 
the snow pack in the mountains. We know what the approximate 
run-off will be. What we do not know is the amount of rain or 
moisture that will fall between Helena, which is the gates of 
the mountains--it starts into the prairies. You have got to 
remember, the Missouri River runs north when it first starts 
out.
    I have been dealing with Canada, you know. We are supposed 
to get all of that water out of all the land that drains into 
the Milk River, too, that would get us up into Alberta, but I 
am not having a lot of luck getting that land back up there. 
The Canadians take a dim view of everything that happens above 
the 49th.
    But nonetheless--but we understand that. We understand how 
those flows flow. What we do not understand is sometimes the 
heavy rains or no rains that flow on further downstream from 
the gates of the mountains. So we are willing to work with 
anybody, understanding that it all starts in Montana. We have 
certain obligations in power production, irrigation, and 
recreation, and would willfully share what goes downstream with 
those needs if we all balance and share in the pain alike. That 
is what this is all about.
    So I thank the chairman for this hearing. I look forward to 
the testimony of those who are in charge of the management of 
the river, and I thank you.
    Senator Dorgan. Senator Burns, thank you very much.
    Senator Hagel.

          STATEMENT OF HON. CHUCK HAGEL, U.S. SENATOR 
                         FROM NEBRASKA

    Senator Hagel. Mr. Chairman, thank you. I, too, add my 
appreciation to you holding this hearing. I have a statement I 
would like to ask be included in the record, Mr. Chairman, as 
well as a letter I received yesterday from the president of the 
Nebraska Farm Bureau Federation.
    Senator Dorgan. Without objection.
    Senator Hagel. I appreciate that. Thank you.
    Let me take a minute or two to respond generally to what I 
have heard this morning, and look forward to hearing yet in 
this hearing from our witnesses. I think the two Missouri 
Senators summed it up pretty well as to the perspective here 
that most of us are trying to approach this difficult issue 
with. This is, as Senator Burns has stated, a challenge of 
balanced perspective. I do not know if there is a Senator in 
the U.S. Senate who does not care about wildlife and the 
environment Maybe there is. They have not so stated if there is 
such a Senator, but the fact is, we need to approach this with 
some common sense and understand all the interests here.
    This hearing is very valuable for many reasons, but one 
reason it is so valuable, Mr. Chairman, is because it allows 
all interested parties to understand what is at stake here. We 
are talking about power generation, huge amounts of power 
generated along the Missouri River that are affected, will be 
affected if this plan would be allowed to hold and to stay.
    You heard much this morning about agriculture, 
transportation, navigation. We have not even touched upon the 
municipality interest along the Missouri River. I mean, 
drinking water, sanitary, storm sewers, flooding. These are 
huge interests that affect real people. The cost of these 
issues are immense as to if we pull back what would happen, and 
allow a radical change in the course of management along the 
Missouri River.
    Wildlife habitat, recreation are important, and I would 
suggest to my colleagues from the Dakotas that wildlife 
habitat, hunting, fishing, recreation are important to States 
downstream as well. We in Omaha, for example, have a very 
significant investment in an area called the Old Market that is 
along the Missouri River. We have significant marinas along 
that river, a lot of fishing and hunting, so downstream 
interests in that area are not exclusive to the interests of 
the upstream States.
    These issues are obviously of critical importance to each 
of our States, to the country, to the management of our 
resources, and it is through hearings like this that we can 
develop, I hope, not just an understanding but a common sense 
approach to how we are going to go forward here.
    I am not one, Mr. Chairman, who believes that we need to 
rush to a conclusion today or tomorrow. I am one who believes 
that the outcome is far more important than the timing of the 
outcome, because the consequences are dramatic, and the 
consequences will affect real people in real ways and. in fact, 
ways that we cannot quite imagine here today.
    I might also remind this panel and those here today that 
the Senate voted overwhelmingly last year to give the Corps the 
authority to review and propose alternatives other than those 
proposed by the Fish and Wildlife Service. That language, by 
the way, included in the Senate Energy and Water Appropriations 
bill requires that other congressionally authorized purposes 
for the river be maintained, and I hope the administration 
follows that mandate from Congress.
    I hope, as Senator Carnahan says, that President Bush 
remembers the pledges he made as he campaigned and carried 
Missouri, and maybe carried Missouri in that election because 
of that promise, so we have significant political dynamics that 
are thread throughout. The currents are running swiftly and 
deeply here, but I think we all want to keep it above the 
politics because the interests are so real that affect all of 
our constituencies, and again I say to you, Mr. Chairman, thank 
you for allowing this discourse and free exchange of 
information.
    I do not know of an issue that is affecting and will affect 
my State as much for the short term and long term as this 
issue, so thank you very much, and I look forward to hearing 
from the witnesses.
    [The prepared statement of Senator Hagel follows:]
   Prepared Statement of Hon. Chuck Hagel, U.S. Senator From Nebraska
    I thank the Chairman for the opportunity to review the management 
of the Missouri River. This is a matter of great importance to Nebraska 
and every other Missouri River Basin state. Unfortunately, it has also 
become an issue that has pitted region against region, state against 
state.
    Last week, without public comment, without Congressional 
notification, and without precedent, the Fish and Wildlife Service shut 
down the Missouri River by telling the U.S. Army Corps of Engineers 
that they could not relocate the nests and eggs of two types of birds, 
the piping plover and least tern. That will keep the Corps from 
increasing dam releases to support water levels on the Missouri, which 
is already at very low levels. As a result, all barge activity--from 
Sioux City, Iowa, to Kansas City, Missouri--could very well be 
grounded.
    While I support the goals of the Endangered Species Act, it 
certainly was never intended to trump every human interest. A balanced, 
common-sense approach to the management of the Missouri River is 
required. That means factoring into this equation all competing 
interests along the Missouri, from agriculture, to navigation and 
transportation, to wildlife habitat preservation, and recreation.
                              agriculture
    Should any changes be made to the Missouri River's water control 
plan, agriculture would be one of the most dramatically affected 
sectors. The Nebraska Farm Bureau has asked that I convey their 
concerns to the subcommittee. I request that a copy of their July 9, 
2002 letter to me be inserted into the record.
    Altering the management of the river by allowing for a spring rise 
would not only impact farmers in downstream states--Nebraska, Iowa, 
Missouri and Kansas--by flooding their land, but would also affect 
barge movement on the Nlissouri and Mississippi. River transportation 
of agricultural commodities is critical to the overall farm economy--
and is one of America's major competitive advantages in world grain 
trade.
    Without the water transportation alternative, farmers will have to 
rely on what amounts to a transportation monopoly, resulting in higher 
prices and less reliable service. According to the Food and 
Agricultural Policy Research Institute (FAPRI), the loss of Missouri 
River commerce could reduce corn prices by 19 cents per bushel. Our 
farmers could not afford this.
    Also, according to the Corps of Engineers, flooding and drainage 
problems could impact up to 1.4 million acres of farmland, an area 
larger than the state of Delaware. This would significantly affect the 
30,400 residential and commercial buildings along the river--worth an 
estimated $17.6 billion.
    It is no surprise that national farm organizations, including the 
National Association of Wheat Growers, National Corn Growers 
Association, American Soybean Association, Ag Retailers Association, 
American Farm Bureau Federation, National Council of Farmer 
Cooperatives, and the National Grain and Feed Association, strongly 
oppose the proposed changes.
                             power industry
    Electricity generation is another sector that would be drastically 
impacted by any changes to the river's management. Nebraska's two 
largest providers of electric power, Omaha Public Power and Nebraska 
Public Power Districts, are strongly opposed to any flow changes to the 
Missouri River.
    Reducing river flows would make it nearly impossible for electric 
generators located along the river to comply with federal water laws. 
Reduced river flows could cause a reduction or even a complete shutdown 
of power generation along the river. That is not something we can take 
lightly, considering that as many as twenty-five power plants along the 
river--with a combined generating capacity of over 15,000 megawatts--
could be adversely impacted by any changes made to the flow.
    It is estimated that such flow changes would cost Nebraska and Iowa 
power plants anywhere from $9 million to $78 million annually, and 
could total between $25 million and $200 million for all Missouri 
River-based plants below Gavins' Point Dam. These costs would be 
directly passed on to consumers.
    Also, Missouri River flow reductions would reduce hydropower 
generation by the Western Area Power Administration (WAPA). The Power 
Administration estimates that this will cause up to a 21 percent 
increase in the cost of the power it sells to customers.
                             municipalities
    We must remember that cities and towns along the river rely on an 
adequate water supply for essential services, from drinking water, to 
sanitary and storm sewers, to industrial uses. Omaha, Nebraska, for 
example, has committed several millions of dollars into new development 
on the river front. Omaha Mayor Mike Fahey has told me that changes to 
the river's flows would dry up marinas and leave recreational boaters 
grounded. Recreational activities--fishing, hunting and wildlife 
watching--are a true benefit created by the river. These activities 
create jobs, and increase property values and tax revenue. And this 
holds true for those of us downstream from Gavins' Point Dam. Indeed, a 
vibrant, flowing Missouri River is a key element for cities like Omaha 
and Council Bluffs, as well as every other community along the river, 
both upstream and down.
    Finally, it should be noted that much of our water supply comes 
from the river. And river levels have an impact on the releases of our 
sanitary systems and storm sewers.
    Mr. Chairman, we need to re-examine the decisions made by our 
federal agencies, particularly the Fish and Wildlife Service. We need 
to provide ultimate authority to a single agency, while allowing the 
opportunity for input from other agencies and the general public. The 
Corps of Engineers seems to be the appropriate agency to grant this 
ultimate authority.
    Last year, I, along with the rest of the Senate, voted to give the 
Corps the authority to review and propose alternatives other than those 
proposed by the Fish and Wildlife Service. That language--included in 
the Senate Energy and Water Appropriations bill--requires that other 
congressionally-authorized purposes for the river be maintained. I hope 
the Administration follows that mandate from Congress.
    The Bush Administration's decision to reconsider the impact of 
proposed changes to the Missouri River flow was the responsible thing 
to do. When it comes to management of the Missouri River, a good 
decision is far more important that a quick decision. Rushing to 
judgment to satisfy an arbitrarily set deadline, without considering 
all the economic and pubic safety consequences, is neither responsible 
nor fair to the taxpayers or those whose livelihoods depend on the 
river. There is too much at stake, for too many people.

    Senator Dorgan. Senator Hagel, thank you very much. As 
always, a thoughtful statement. Let me say, though, on the last 
point you made, I am actually trying to determine what 
commitment was made in the State of Missouri by the President. 
I think that is very helpful for us to understand as well. No 
such commitment was made, I believe, in Montana or North 
Dakota, so I am trying to understand exactly what this 
commitment was, and we will try to track all that down so we 
can evaluate the background of this. But again, thank you both 
for your statements, and Senator Johnson, thank you for your 
statement as a witness today.
    We will hear from the four witnesses at the table, and then 
we will ask questions, and then we will have the four final 
witnesses.
    Brigadier General David A. Fastabend, commander of the 
Northwestern Division, U.S. Army Corps of Engineers. General, 
thank you for being with us. Your entire statement will be part 
of the record. We would ask that you summarize, so why do you 
not proceed.

 STATEMENT OF BRIGADIER GENERAL DAVID A. FASTABEND, COMMANDER, 
      NORTHWESTERN DIVISION, U.S. ARMY CORPS OF ENGINEERS

    General Fastabend. Thank you very much, Mr. Chairman, 
members of the committee. Good morning. You have my prepared 
statement, of course. It will be entered into the record.
    As Commander of the Northwestern Division of the Corps of 
Engineers, I have been dealing with Missouri River Basin issues 
for approximately 11 months. I will tell you that my entire 
military career up to this assignment has been in tactical 
combat engineer units. I was recently asked, ``given that 
background, what has prepared you to deal with the Missouri 
River Basin issues?'' My answer without hesitation was 
``Bosnia.''
    When I was in Bosnia, I found myself between groups that 
felt very passionately and very divergently on what the future 
should be. These groups had a great deal of difficulty 
communicating with each other. There was a legacy of distrust 
and perceived wrongs, and each group felt very passionately 
that God was on their side. My experience in the Missouri River 
Basin has not been all that different.
    The Corps has a role to manage the Nation's inland 
waterways, and the inland waterways are a precious resource 
that many people feel passionately about, and many people have 
very divergent ideas about how those precious resources should 
be managed. When you combine the role of the Army's Corps of 
Engineers in that respect, with the Army's traditional ethic of 
being a selfless servant to the Nation, you get an agency that 
is famous, or infamous, if you will, for its stoic and silent 
endurance under criticism.
    Some people like to say that the Corps only cares about 
navigation, or the Corps only cares about hydropower, or the 
Corps only cares about flood control. The Corps does not ``only 
care'' about any of these things. There is one thing that the 
Corps cares about. The Army Corps of Engineers cares about 
executing the will of the American people, as expressed by 
their elected representatives here in Congress, as directed by 
the national command authority, and as sanctioned by the 
courts. That is what we care about, and that sounds simple, but 
the reality is that over time the American people have given us 
multiple instructions.
    In the 1930's and the 1940's they told us to build, 
operate, and maintain these projects for multiple purposes. In 
the 1970's, they had additional instructions that included the 
Endangered Species Act and the National Environmental Policy 
Act. In the eighties we had the National Historic Preservation 
Act, and the Native American Graze Protection and Repatriation 
Act. I respectfully suggest to you that no one ever really 
stopped to think if any of these instructions might perhaps at 
times be contradictory. Our challenge is to try to resolve 
these contradictions and faithfully execute the will of the 
American people. It has become more complicated as the 
agencies, my peer agencies that are doing their job to the best 
of their ability, have had to make specific rulings, 
particularly on endangered species.
    The law they used to make those rulings and the rulings 
themselves came decades after those projects were built, and 
therefore they were not necessarily designed to accommodate 
those considerations. So we have some challenges, and I welcome 
this opportunity to describe those challenges to you so that 
you can see first-hand the kind of challenges we face.
    Yesterday, I was on the bank of the Missouri River and 
someone asked me what it feels like to be a ``human pinata.'' 
It feels a lot better than you might imagine. In the Corps of 
Engineers, we are absolutely proud of the role we have in 
applying the best available science, the best available 
engineering judgment to resolve these issues, to balance the 
purposes for which these projects were built, while 
simultaneously complying with the Endangered Species Act and 
our trust and treaty obligations to federally recognized Native 
American tribes.
    In the Army we have a saying: ``Good news, you are on 
point, and it is a position of honor.'' Being on point is the 
most dangerous position to have, but only the best get it, and 
only the most trusted get it. I believe that the Northwestern 
Division of the Corps of Engineers is on point in the Missouri 
River Basin. It is a position of honor. We welcome the 
challenge. We are proud of what we have done, and I look 
forward to your questions.
    [The prepared statement of General Fastabend follows:]
Prepared Statement of Brigadier General David A. Fastabend, Commander, 
          Northwestern Division, U.S. Army Corps of Engineers
    Mr. Chairman and Members of the Subcommittee, I am Brigadier 
General David A. Fastabend, Commander of the Northwestern Division of 
the U.S. Army Corps of Engineers. It is my pleasure to be here today to 
testify on water resource management issues on the Missouri River.
    The Army Corps of Engineers operates a system of six dams on the 
Mainstem of the Missouri River for the Congressionally authorized 
purposes of flood control, hydropower, water supply, water quality, 
irrigation, navigation, recreation, and fish and wildlife. The Missouri 
River Master Water Control Manual (Master Manual) sets forth the 
guidelines for operation of the system.
    There are a myriad of complex operational and resource management 
issues surrounding revision of the manual. Upstream interests want 
high, stable lake levels to address recreation, irrigation, and 
hydropower needs. Environmental interests seek a hydrograph that more 
closely mimics the natural hydrograph of the Missouri River. Upstream 
and downstream interests below the dams support different flow regimes 
for flood control, water supply, water quality, recreation, and 
commercial navigation on the Missouri and Mississippi Rivers.
    During the period of 1987-1992, the Missouri River basin 
experienced a moderate to severe drought. As a result of the drought, 
the Missouri River Mainstem reservoirs were drawn down significantly to 
meet authorized purposes. There were numerous lawsuits and inquiries 
concerning the operation of the reservoirs. In November 1989 the Corps 
voluntarily initiated a Review and Update of the Master Manual to 
address concerns over the adequacy of the existing water control plan 
and determine operating criteria that might better serve the 
contemporary needs of the Missouri River basin. A Draft Environmental 
Impact Statement (DEIS) which included a Preferred Alternative (PA) was 
published in 1994. There was no agreement in the basin on this PA. In 
an effort to foster basin consensus regarding a flow management plan, a 
preliminary revised DEIS, which identified eight representative 
alternatives, was published in 1998.
    Two bird species, the threatened piping plover and the endangered 
interior least tern, were listed in 1985. The pallid sturgeon was added 
to the list of endangered species in 1990. Although the Corps and the 
United States Fish and Wildlife Service (Service) had consulted 
formally under Section 7 of the Endangered Species Act (ESA) in 1990 on 
the effects of Mainstem System operations on terns and plovers, and had 
consulted informally during the 1990's on impacts to pallid sturgeon of 
various project operations, in April 2000 the Corps requested formal 
consultation on the current operation of the Mainstem System, the 
Missouri River Bank Stabilization and Navigation Project (Sioux City, 
Iowa to St. Louis, Missouri), and the current operation of the Kansas 
River Reservoir System with regard to effects to terns, plovers, 
sturgeon, and the bald eagle. A Final Biological Opinion (BiOp), 
received from the Service on November 30, 2000, concluded that current 
operations jeopardize the continued existence of the piping plover, 
interior least tern and pallid sturgeon. As a component of the 
Reasonable and Prudent Alternative (RPA) to jeopardy, the Service 
indicated in their Final BiOp that higher spring releases and lower 
summer releases from Gavins Point Dam, the lowest dam on the system are 
necessary to preclude jeopardy of the three protected species.
    On August 31, 2001, the Corps published a revised Draft 
Environmental Impact Statement (RDEIS) on modification of the Master 
Manual. The RDEIS identifies the impacts associated with six 
alternative operational plans. In addition to the current Water Control 
Plan (CWCP), the Corps analyzed a Modified Conservation Plan (MCP). The 
MCP includes more stringent drought conservation measures and all of 
the flow-related elements of the Reasonable and Prudent Alternative 
(RPA) with the exception of modified releases from Gavins Point Dam. 
The RDEIS also analyzed four alternatives that added various Gavins 
Point Dam release changes to the MCP. These latter four alternatives 
addressed the full range of changes in releases from Gavins Point Dam 
that the Service included in the RPA in its November 2000 BiOp and are 
called the GP alternatives. The release of the RDEIS marked the 
beginning of a six-month public comment period. Tribal and public 
workshops and hearings were held throughout the Missouri River basin 
and at locations in the Mississippi River basin. Oral, written, and 
electronic comments were taken until February 28, 2002. Over 55,000 
comments were received.
    The Corps has reviewed all of the comments received, all 
information developed in the course of the 12-year effort on possible 
revisions to the Master Manual, including the BiOp and the recent 
National Academy of Sciences Report for the Missouri River published in 
January 2002. We are working to achieve an outcome that meets the 
contemporary needs of the Basin and the Nation, serves Congressionally-
authorized project purposes, complies with environmental laws including 
the ESA, and fulfills the Corps responsibilities to Federally-
recognized Tribes.
    The Corps and the Service now have entered into informal ESA 
consultation and are meeting regularly. During this informal 
consultation process, the Corps and the Service will work to assess 
available scientific and technical information and explore a range of 
possibilities regarding operation of the system.
    The Corps will use the results of the consultative effort as the 
Final Environmental Impact Statement (FEIS) is completed. The Corps 
will complete a FEIS that will include a description of the 
environmental and economic impacts of a preferred alternative and will 
offer a 30-day review and comment period on that document.
    The FEIS will address the Tribal and public comments received in 
response to the RDEIS and present the new PA and its impacts. Following 
the FEIS, the Corps will prepare a Record of Decision, revise the 
Master Manual if appropriate, develop an Annual Operating Plan, and 
implement that plan.
    Mr. Chairman, this concludes my statement. I would be happy to 
answer any questions you or the other Subcommittee members may have.

    Senator Dorgan. General, thank you very much. Next, we will 
hear from David Smith, Deputy Assistant Secretary for Fish, 
Wildlife, and Parks, Department of the Interior.
    Mr. Smith, why don't you proceed.

  STATEMENT OF DAVID P. SMITH, DEPUTY ASSISTANT SECRETARY FOR 
    FISH AND WILDLIFE AND PARKS, DEPARTMENT OF THE INTERIOR

    Mr. Smith. Thank you, Mr. Chairman.
    Mr. Chairman, members of the committee, I am David P. 
Smith, Deputy Assistant Secretary for Fish and Wildlife and 
Parks, Department of the Interior. I appreciate this 
opportunity to present testimony on behalf of the Department 
concerning the current and future management of the Missouri 
River and the relationship of that management to the Endangered 
Species Act. Before I continue with my statement, Mr. Chairman, 
I would like to offer some brief remarks regarding the events 
of last week on the Missouri.
    As you are probably aware, the Corps of Engineers 
voluntarily halted action to assist navigation that would raise 
water levels of the lower portions of the Missouri River after 
contacting the Service and being notified that these actions 
may inadvertently run afoul of the provisions of the biological 
opinion for current year operations.
    We understand the difficulties the Corps faces this year in 
meeting the challenges of operating the system in drought 
conditions, and the Service has already begun to work closely 
with the Corps to ensure that both agencies meet their 
responsibilities under the Endangered Species Act. Under the 
ESA, Federal agencies are directed to use their authorities to 
conserve endangered and threatened species. The Missouri River 
is home to three of these species, the endangered pallid 
sturgeon and least tern, and the threatened piping plover.
    The Service assists other Federal agencies to ensure that 
their actions do not jeopardize the continued existence of 
these species. For the last 12 years, the Service has worked 
with the U.S. Army Corps of Engineers to address management of 
the Missouri River so as to help conserve and recover these 
species while still providing many beneficial economic and 
recreational uses of the river.
    Given the complexity of the system, management of the 
Missouri River has never been a simple issue. The river system 
encompasses nearly 530,000 square miles and drains 
approximately one-sixth of the land mass of the United States. 
The Missouri River Basin is home to about 10 million people in 
10 States and 28 Native American tribes. The river's natural 
heritage, as well as its role in human history, is part of the 
heritage of all the States through which it flows, including 
North Dakota and the Nation as a whole.
    The challenge is to balance the needs of the many 
communities in the basin while conserving the listed species. 
We believe compliance with the Endangered Species Act on the 
Missouri River can be accomplished in a manner that benefits 
both wildlife and people. At present, the Corps and the Service 
have entered into informal consultation and are working at 
multiple levels to address issues related to future operations 
in the Missouri River system. The service in the regional 
office is working with General Fastabend and the Corps' staff 
in Omaha, and the U.S. Fish and Wildlife Service's Director 
Steve Williams, has met repeatedly with General Griffin here in 
Washington.
    We are working towards a consultation agreement which will 
address how best to proceed from here. Considering all of the 
conservation tools available to us, we are committed to 
exploring a variety of approaches towards meeting our 
obligations to conserve the listed species and provide for 
beneficial economic and recreational uses of the river. These 
discussions are continuing regularly, but we are not yet at a 
point where we have reached an actual agreement on exactly how 
to proceed.
    Mr. Chairman, we appreciate your interest in the management 
of the Missouri River, and the efforts by the U.S. Fish and 
Wildlife Service and the Corps of Engineers to jointly protect 
the river's diverse natural resources and economic values. We 
will keep you and the other interested members of Congress 
advised of our progress on this issue.
    This completes my prepared remarks. I look forward to 
answering your questions.
    Senator Dorgan. Mr. Smith, thank you very much. Next, we 
will hear from Hon. Bill Hawks, Under Secretary of Agriculture, 
Marketing and Regulatory Programs, the Department of 
Agriculture.
    Mr. Hawks, thank you for being here. You may proceed.

   STATEMENT OF BILL HAWKS, UNDER SECRETARY OF AGRICULTURE, 
  MARKETING AND REGULATORY PROGRAMS, DEPARTMENT OF AGRICULTURE

    Mr. Hawks. Thank you, Mr. Chairman, members of the 
committee for the invitation to appear before this committee 
today. The Missouri River is very important to the Department 
of Agriculture. It is important that we work together to find a 
balanced, science-based solution that meets the needs of all 
interested parties. This situation is complicated by a number 
of competing interests, as we have already heard here this 
morning, and the purpose that the river serves among several 
States. However, I believe that we can work together to find a 
reasonable solution. I have a saying that I always use, and 
that is, working together works, and I think that will 
certainly apply here.
    Let me begin by saying the Department of Agriculture 
believes in the importance of barge traffic as a means to 
transport agricultural supplies and commodities. Barge 
transportation is unrivaled as the least expensive, most 
environmentally friendly and the safest mode for moving bulk 
commodities to export. The water flow on the Missouri River 
contributes to the maintain adequate river levels on the 
Mississippi River for the transport of grain and oilseeds from 
the Midwest to the Gulf of Mexico.
    USDA recognizes the importance of maintaining an efficient 
transportation system. Our competitive edge in the global 
market depends on our ability to effectively move our product. 
This is true more than ever today, particularly as we strive to 
compete in markets where many producers benefit from Government 
policies that assist their producers in production marketing 
and distribution systems much more than our producers due in 
the United States.
    Indeed, many of our competitors are making significant 
investments in their own transportation infrastructure, public 
investment that will no doubt improve their ability to move 
product into the markets that compete with the United States. 
Transportation by water is low cost, environmentally friendly, 
and highly effective at moving vast quantities of bulk 
commodities to port. The availability of barge traffic helps 
keep rail rates competitive. That should be of significant 
interest to some of the upper States. By offering a low-cost 
alternative for the shippers that use the Missouri River, the 
majority of U.S. grain for export which are produced in the 
interior States of the Nation are moved by rail and truck to 
the major arterial waterways that then feed into the 
Mississippi River. The impact of any change in the river 
operation on U.S. grain exports and on the ability of barge 
traffic to move freely during harvest time will be carefully 
considered.
    I will conclude by saying that the Department of 
Agriculture recognizes, as other Departments before us have 
recognized the advantages that inland waterway navigation 
offers to U.S. agriculture and the related benefits to rural 
economies throughout the Nation. USDA also acknowledges that 
competing interests have different perspectives. However, I can 
assure you that the administration is considering the impact of 
the proposed change in the Missouri River operations on the 
agricultural sector as well. Within the executive branch, USDA 
will continue to be an advocate for our Nation's agricultural 
commerce and the producers, families, rural communities that 
both produce and depend on agriculture commerce for their 
quality of life and their livelihood.
    Mr. Chairman, that concludes my comments, and I am looking 
forward to responding to questions.
    Senator Dorgan. Mr. Hawks, thank you very much.
    Next, we will hear from Margaret Sibley, Director of Policy 
at the Bureau of Reclamation.

   STATEMENT OF MARGARET SIBLEY, DIRECTOR, OFFICE OF POLICY, 
       BUREAU OF RECLAMATION, DEPARTMENT OF THE INTERIOR

    Ms. Sibley. Thank you, Mr. Chairman.
    Reclamation has been involved in the Missouri River Basin 
almost since its inception in 1902. At the very beginning, the 
projects were typically single purpose irrigation projects 
located on headwater and tributary streams of the Missouri 
River. Some 40 years later, the Pick-Sloan Missouri Basin 
program that was authorized by the Flood Control Act of 1994 
and gave the Corps of Engineers to have the responsibility for 
navigation and flood control on the main stem of the river. 
Reclamation was responsible for the development of the 
irrigation hydropower and other uses of the tributaries in the 
basin with the exception of the Canyon Ferry Hydroelectric 
Power Plant at the headwaters of the river.
    The initial power produced by Pick Sloan is used by 
irrigation to provide power to be able to pump the water from 
its source to irrigation lands, but the 1944 Control Act also 
required that the preference be given to certain entities for 
marketing power. The power development in the basin has 
exceeded the original plan. Changes in energy market demand 
resulted in more facilities being built. Irrigation development 
on the other hand, has fallen far short of what was originally 
envisioned in the act.
    The program to date has only about 518,356 acres of 
irrigation and 34 dams, not including the Corps' mainstream 
dams that was developed in the Pick-Sloan program. Much of the 
original acreage was determined not to be suitable for 
irrigation, and social and local economic changes dramatically 
changed since the 1944 act was passed.
    The evolution of the Garrison Diversion Unit of the Pick-
Sloan is somewhat representative the direction water 
development has taken in the basin. It has been reformulated 
twice, and now is a multipurpose project that emphasizes 
municipal, domestic, and industrial water supply. Reclamation 
is also an active member in the Missouri River Basin 
Interagency Roundtable. This is the consortium of agencies 
where communication and cooperation, reducing duplication and 
effort, and enhancing the effectiveness of each agency's 
resource management capabilities in the Missouri River Basin 
take place.
    Reclamation has followed the developments of the Corps of 
Engineers Missouri River Master Water Control Manual and 
associated environmental impact statement. We have reviewed and 
commented on various draft documents in order to provide 
general technical input and to identify the possible effects of 
various alternative plans on the Bureau of Reclamation projects 
and its facilities. Our main concerns are to continue meeting 
contractual requirements and to fulfill the authorized 
irrigation, power, recreational, and Fish and Wildlife 
functions of our project.
    Thank you very much for the opportunity to comment on 
Reclamation's role in this. This concludes my statement, and I 
would be happy to answer any questions.
    [The prepared statement of Ms. Sibley follows:]S6621

  Prepared Statement of Margaret Sibley, Director, Office of Policy, 
           Bureau of Reclamation, Department of the Interior

    My name is Margaret Sibley, I am the Director of the Office 
of Policy for the Bureau of Reclamation. I am pleased to 
describe the Bureau of Reclamation's activities in the Missouri 
River Basin and the relationship to the Corps of Engineers 
operations.
    Reclamation's involvement in the Missouri River Basin began 
soon after the agency's founding under the auspices of the 
Reclamation Act of 1902. Investigations were initiated 
throughout the basin, and construction of several projects was 
soon well underway. Before World War II, projects were 
typically single purpose irrigation projects located on 
headwater and tributary streams of the Missouri River.
    The pace and planned scale of Reclamation's activities 
increased considerably with the authorization of the Pick-Sloan 
Missouri Basin Program (Pick-Sloan) by the Flood Control Act of 
1944. Under the plan, the Army Corps of Engineers was given the 
responsibility for navigation and flood control on the main 
stem of the river. Reclamation was responsible for the 
development of irrigation, hydroelectric power, and other uses 
on the tributaries in the Basin. With the exception of the 
Canyon Ferry hydroelectric power plant at the headwaters of the 
river, which Reclamation built and operates, the main stem 
federal dams and power facilities are owned and operated by the 
Corps of Engineers.
    The initial power produced by Pick-Sloan projects is used 
by irrigation projects to provide power to pump water from its 
source to the irrigated lands. This is known as project pumping 
power or project use power. All power produced in excess of 
project use is called ``Preference Power.''
    The 1944 Flood Control Act also required that preference be 
given to certain entities in marketing the balance of the power 
produced by Pick-Sloan facilities. These ``preference power 
customers'' include cooperatives, municipalities, public 
utility district and state and federal agencies.
    Power development in the basin has far exceeded what was 
originally planned. Changes in energy market demand resulted in 
more facilities being built. In many cases, those facilities 
have been expanded or made more efficient, thus increasing 
production capacity. All power produced in the Missouri River 
Basin by Reclamation and the Corps of Engineers is marketed by 
the Western Area Power Administration.
    Irrigation development, on the other hand, has fallen far 
short of what was originally envisioned in the Act. The early 
Pick-Sloan Missouri Basin Program called for over one-hundred 
dams to serve irrigation projects. Irrigation was to be 
provided to 4.8 million acres of farmland in six states. To 
date, only about 518,356 acres of irrigation, and thirty four 
dams, not including the Corps' main-stem dams, have been 
developed under the Pick-Sloan program. Much of the original 
acreage was determined not to be suited for irrigation, and 
social and economic conditions changed dramatically in the 58 
years since President Roosevelt signed the Flood Control Act.
    The evolution of the Garrison Diversion Unit of Pick-Sloan 
is somewhat representative of the direction water development 
has taken throughout the basin. This project began primarily as 
an irrigation project. It has been reformulated twice and now 
is a multipurpose project that emphasizes municipal, domestic, 
and industrial water supplies. Irrigation water is being 
supplied to less than one-hundred thousand acres. While the 
municipal and rural water systems have replaced some irrigation 
development on the project.
    Reclamation has not been involved in funding new irrigation 
units of the Pick-Sloan program for many years. The last major 
project completed was the North Loup Project in Nebraska. It 
was authorized in 1976 and completed in 1990.
    Interior is an active member of the Missouri River Basin 
Interagency Roundtable (MRBIR). The MRBIR is a consortium of 
Federal resource management agencies dedicated to improving 
interagency communications and cooperation, reducing 
duplication of effort, and enhancing the effectiveness of each 
agency's resource management capabilities in the Missouri River 
Basin.
    Reclamation has followed the developments on the Corps of 
Engineers Missouri River Master Water Control Manual and the 
associated environmental impact statements. We have reviewed 
and commented on various draft documents in order to provide 
general technical input, and to identify the possible effects 
of various alternative plans on Bureau of Reclamation projects 
and facilities. Reclamation serves numerous water users 
throughout the Missouri Basin, and our main concerns are to 
continue meeting contractual requirements and to fulfill the 
authorized irrigation, power, recreation, and fish and wildlife 
functions of our projects.
    Thank you for the opportunity to comment on Reclamation's 
role in water resource management in the Missouri River Basin 
Region, and the Bureau's role in the Corps of Engineers ongoing 
review of the Missouri River Master Water Control Manual. This 
concludes my statement, and I would be happy to answer any 
question

    Senator Dorgan. Ms. Sibley, thank you very much. I thank 
all of your for your testimony, and let me begin by asking a 
few questions and then my colleagues will also ask some 
questions.
    General, let me begin with you. I have a letter here from 
Secretary of the Army Thomas White. He is responding to a 
letter that I had written to him on September 21. On September 
26 he wrote back and among other things he said, the Corps will 
release final environmental impact statement FEIS with a 
preferred alternative in May 2002 as currently scheduled.
    Then I have a letter of February 15, 2002, from Robert 
Flowers, Lieutenant General, Corps of Engineers. He says, Dear 
Senator Dorgan, this responds to your correspondence dated 
January 9, and he once again says that we will continue the 
master manual revisions so as to develop a final EIS by May 
2002 and a record of decision by October 2002.
    What has happened that caused the Corps to miss September 
26 of last year, February 15 of this year? Since those dates, 
the Secretary of the Army and the head of the Corps of 
Engineers have both put in writing that they will meet the May 
date of this year. Obviously they did not meet that date. What 
happened in that intervening period?
    General Fastabend. Mr. Chairman, at the time of those 
letters it was our intent to meet those dates, and in part I 
would offer to you that we have met them. In May, the Corps of 
Engineers did finish its assessment of the 55,000 comments we 
received on the Revised Draft Environmental Impact Statement, 
and the Corps identified a preferred alternative that it did 
pass over to Fish and Wildlife Service. This preferred 
alternative was the starting point for our informal 
consultations to resolve the issue and advance the process.
    Senator Dorgan. What was that preferred alternative?
    General Fastabend. The preferred alternative is a 
description of how the Corps of Engineers would revise the 
master manual in order to----
    Senator Dorgan. I understand that. I am asking what the 
preferred alternative was. What had you chosen to send as your 
preferred alternative?
    General Fastabend. Mr. Chairman, what I was about to tell 
you is that in the process of delivering that preferred 
alternative we decided that it would be best to keep that 
informal consultation as an interagency process because of the 
controversy that is so obvious to everyone in this room with 
all decisions associated with the Master Manual. We believe 
that we could resolve our discussions best if we kept that as 
an interagency process, so we have not announced publicly the 
details of the Corps' preferred alternative back to the 
Service.
    Senator Dorgan. But General, both Secretary White and 
General Flowers knew when they wrote these letters that this 
was controversial, so it is not a revelation that this is a 
controversial issue. My concern has been that the Corps of 
Engineers developed a preferred alternative and then pulled 
that alternative for reasons other than good public policy.
    You were scheduled to meet with me on May 22. Your office 
called and requested a meeting with me, and we were set to meet 
at 11 a.m. on May 22. My office schedule showed that you were 
apparently going to brief me on the Missouri River preferred 
alternative announcement, which was to have occurred the next 
day or several days thereafter. The day before that meeting, we 
were called and it was cancelled. Can you tell me what you were 
prepared to tell me at the meeting on May 22. Would you 
disclose that at this hearing?
    General Fastabend. Mr. Chairman, up until the call where I 
cancelled my intent had been to meet with you and give you a 
preview on what the details of the preferred alternative would 
be. At that time, the Fish and Wildlife Service and the Corps 
of Engineers jointly agreed that we should make this a 
nonpublic interagency informal consultation process, and 
therefore I regretfully had to call and cancel that process of 
showing the public what that recommendation was.
    Senator Dorgan. General, I am not suggesting bad faith on 
your part. I am saying that the Secretary of the Army, General 
Flowers, and you had a preferred alternative and were prepared 
to come to my office, among others, I assume, and tell us what 
that was.
    We heard testimony earlier today that the President went to 
Missouri and made a commitment about these issues and, frankly, 
I am a little concerned about what is happening here. Why a 
preferred alternative was identified but cannot be made public. 
Will you make it public today? Will you tell me at this hearing 
what you were prepared to tell me at the May 22 meeting?
    General Fastabend. Mr. Chairman, I would ask your 
indulgence. I would not like to make it public today. The Corps 
of Engineers and the Army, which answered your letters, did 
have their intent to do that. However, the Corps of Engineers, 
of course, is not the entire administration. We have to consult 
with the Fish and Wildlife Service so that we develop a good 
understanding of any differences we have on the details of the 
recommendation so that the administration can have a 
consolidated position.
    Senator Dorgan. General, I know this puts you in a tough 
position, but you saw what I described at the front of this 
hearing, 12 years. We talk about indulgence and patience. I am 
out of patience, so I guess I am asking you, and I understand 
why you do not want to tell us, but I am asking you as we are--
policymakers. We fund your agency. I have a letter from the 
Secretary and a letter from General Flowers, the head of the 
Corps, and they have said we will meet the date in May. You 
apparently had a preferred alternative in May, were prepared to 
come and tell me about it, and then decided that you want to 
keep it private.
    I am saying I do not think that is appropriate. I think you 
ought to make it public, and I think you ought to do so today. 
I think you should tell this committee what the preferred 
alternative was. If it is not ultimately the preferred 
alternative that comes out of some internal discussions, I 
understand that, because there is apparently some other 
political commitment out here that we are also dealing with, 
which I hope to understand a bit more about, but at least for 
purposes of the Corps--and I have a great deal of respect for 
the Corps.
    The Corps helped us fight the Red River flood. I have spent 
a lot of time talking to the Corps about how important they are 
in our lives, so this is not in any way disrespectful of you or 
the Corps. I respect your organization, but with these 
assurances of a preferred alternative, given myself, as the 
chairman of this subcommittee, and my colleagues, I do not 
think after 12 years you ought to tell us that you need our 
indulgence.
    I think you should tell us what the preferred alternative 
was. Then at least we have a reference point here of what kind 
of internal private secret discussions are going on--let me 
amend that and take secret away--what kind private discussions 
are going on between the Corps, the Service, and others.
    General Fastabend. Mr. Chairman, I am a soldier, I am in 
the Army. The country has always appreciated our habit of 
following instructions, and my instructions are to keep this as 
an interagency discussion.
    Senator Dorgan. And General, who are those instructions 
from?
    General Fastabend. My instructions are from my higher 
headquarters, Headquarters U.S. Army Corps of Engineers.
    Senator Dorgan. Is it Secretary White, or General Flowers.
    General Fastabend. Sir, I do not talk to Secretary White. I 
talk to General Flowers.
    Senator Dorgan. And General Flowers has instructed you not 
to tell us what the preferred alternative was?
    General Fastabend. Yes, sir.
    Senator Dorgan. We invited General Flowers here, and I 
will, as a result of that, invite him once again, and we will 
have a separate session with General Flowers. I know General 
Flowers well. I think it is a mistake for him to withhold from 
policymakers here that which apparently is being discussed 
internally and outside of public view. After 12 years of trying 
to find a way to better manage his river, I think it is better 
to have in public view these kinds of discussions rather than 
keep them from public view, but again, my questioning has meant 
no disrespect to you, General.
    General and Mr. Smith, let me ask both of you what kind of 
communications exist between you and the Council on 
Environmental Quality? Mr. Smith, can you tell me what kind of 
discussions have existed?
    Mr. Smith. I personally have not been involved in any 
discussions with CEQ. I know that they have been playing a 
coordinating role in this, just in terms of making sure that 
the different agencies of the Federal family are communicating 
effectively.
    Senator Dorgan. General, are you familiar with the 
activities of the Council on Environmental Quality over at the 
White House, and what role, if any, they have had in these 
discussions?
    General Fastabend. Mr. Chairman, I share Mr. Smith's 
understanding that CEQ has a coordinating role, but I did not 
deal directly with CEQ.
    Senator Dorgan. The reason I am asking that question is, I 
assume if there is some sort of commitment that was made in the 
last campaign with respect to these issues, that the CEQ would 
be the conduit through which that commitment comes to other 
agencies in the administration. I would also want to understand 
what is going on there. I must say, we asked the head of the 
CEQ to be here this morning, and the CEQ said he was 
unavailable and they refused to send someone else, so I will 
also see if we cannot find a proper time when we could visit 
with those policymakers.
    My interest here is simple. My interest is in finding a way 
that this river is managed for the benefit of all of the people 
and all of the interests on that river, the wildlife interests, 
the ecological interests, the interest of farmers, the interest 
of people involved in recreation and boating.
    I do not have the time, Mr. Hawks, but perhaps we can find 
a little time here in a moment, but I think there is great 
disagreement about the suggestions you make on transportation 
costs, especially railroad costs. I doubt whether anybody on 
the southern reaches of the Missouri River would tell you that 
rail rates are fair. They certainly will not tell you that on 
the northern reaches, but there are studies that take issue 
with that, and the methodology especially by which some are 
claiming that the availability of barge traffic tends to keep 
rail rates down.
    In fact, as I understand it, what is happening is, the 
barge traffic is moving grain down so that it can bring 
fertilizer back. It is a back-haul for fertilizer coming north, 
and fertilizer coming north is probably an appropriate metaphor 
for the difficulties we are faced with 12 years here. What we 
would like is good policy heading north that says to people on 
the northern reaches of this river in the upstream States that 
we are going to manage this in a manner that is fair to you. It 
is fundamentally unfair at the present time, and I very much 
want the Corps to proceed to meet the commitments that the 
Secretary of the Army and the head of the Corps have made to 
us.
    Well, I have taken more of my time--let me ask Senator 
Hagel to inquire.
    Senator Hagel. Mr. Chairman, thank you, and to each of you, 
thank you for coming before our committee this morning.
    General, let me ask you the general question, how do you 
factor in the interests of all the different dynamics that you 
heard this morning and you are well aware of to get to a 
decision like the decision the Corps made last week? Do you 
think about power production? Do you think about flooding 
agriculture, transportation, or do you think about birds, or 
how do you do this?
    General Fastabend. Senator Hagel, thank you for that 
question. There are basically three things I have to do when I 
deal with these issues. First of all I have to balance the 
multiple economic purposes for which the projects were built. I 
have to simultaneously comply with all environmental law, and I 
must simultaneously meet our trust and treaty obligations to 
federally recognized tribes.
    Some people think at times that we are balancing the ESA 
against economic purposes. We do not do that. We may balance 
economic purposes against each other, but we do that and 
simultaneously meet environmental law and our trust and treaty 
obligations to federally recognized tribes.
    So in this process what I have done is, I have very 
carefully immersed myself in all the input related to this 
issue, and I work very hard to maintain the multiple purposes 
for which the projects were authorized and built. As I said in 
my opening statement, we get instructions from the American 
people. Our last instructions were, operate these projects for 
these multiple purposes, so I will work very hard in all cases 
to maintain all purposes. Only when I get to the complete 
elimination of all possible constraints, or all possible 
latitude to maintain a purpose, will I regretfully let that 
purpose go. That is the problem I have been having on 
navigation in recent days, because I have not had the latitude 
to raise releases out of Gavins Point.
    Senator Hagel. Well, thank you. Let me dig a little deeper 
into this. Then how do you weigh the differences and the 
interests or priorities between the charge the Corps has on 
management issues on the river concerning flooding, navigation, 
versus the Endangered Species Act? Do you give each a few 
points and then you total them, or how does that work?
    You have explained that you have three criteria that you 
have to deal with, and I agree that the Congress has placed the 
Corps, and we do year after year, in a situation where you are 
constantly ricocheting from policy decision to policy decision 
trying to weigh all the mandates that we push down on you. I 
understand that. I think most of us do.
    But where I want to go then is, I understand what you have 
just said. Then how is the Endangered Species Act compliance 
more important than your other responsibilities of river 
management?
    General Fastabend. Senator, when you look at the economic 
purposes, my understanding is you do not see a clear priority 
and legislation documented anywhere with respect to any 
particular one economic purpose. Obviously, any threat to life 
is very important to us, and so flood control issues 
immediately come to mind. If someone had a gun to my head and 
said, which one is most important, any kind of threat to human 
life is a big problem.
    Senator Hagel. So you would rank human interests over bird 
interests?
    General Fastabend. I would rank risk to human life over 
bird interests, yes, sir, I would, but we have not gotten to 
the point where we have had to compare risks to human life to 
compliance with environmental law.
    Senator Hagel. Well, what was the decision about last week, 
then?
    General Fastabend. Last week, of course, we were in a 
tremendous drought situation. Tributary input is 
extraordinarily low. At Lake Oahe, for instance, their input is 
17 percent of what was expected, and so from the beginning of 
the annual operating plan this year we dialed back navigation 
from full service to intermediate service initially 1 May, and 
then down to minimum service on 1 July. In order to accommodate 
the drought situation, we made a decision which we are allowed 
to make under the current water control manual to do what we 
call flow to target. Flow to target means we try to meet the 
navigation targets as assigned for minimum service at the 
various control points on the river.
    The alternative method is called flat release. If we had 
gone to flat release, we would have made a judgment of how much 
tributary drying we would have gotten over the summer and we 
would have made a guess, added the drying effect, and gone with 
a flat release that was relatively higher in the late spring. 
We went to flow to target because that saves water. It saves 
about a million and a half acre feet in the upstream States. It 
helps ameliorate the impacts of drought on the upstream States. 
It means about a foot and a half elevation in those reservoirs.
    The problem with flow to target is that sometimes you dial 
the river back, sometimes you dial it back up. Because of the 
extraordinary drying effect and the reduced input from the 
tributaries below Gavins Point Dam we needed to bring the river 
back up, and we found out when we started to move nests and 
eggs that our understanding of the incidental take statement in 
the current biological opinion was not the same as what the 
Fish and Wildlife Service had. Therefore we were not able to 
move those nests, not able to bring the water back up. This is 
not an issue of a threat to human life. It is an issue of 
maintaining the navigation purpose for which the project was 
authorized.
    I am at minimum service and dropping now because I cannot 
bring the water back up. I have absolutely no other option. I 
have initiated releases out of the Kansas Reservoir System, but 
under the water control manual that increase is limited to 
3,500 CFS. I am at that. That will only last a couple of weeks, 
and so I have exhausted every option. The only way to continue 
to meet the navigation purpose would be to violate the 
Endangered Species Act, and I do not intend to do that.
    Senator Hagel. So as you have just taken us through the 
process, the consequences for a decision like this staying in 
place, and there will be consequences. Maybe not flooding 
today, to your point, because we are experiencing a drought, 
but the consequences that will follow on here, economic 
consequences, power generation, municipality consequences and 
all the rest, if this decision holds, surely you would think 
about that as well, or maybe you cannot. Is that what you are 
telling me, that you are so locked into an interpretation of 
the law that the consequences be damned, or what is it?
    General Fastabend. Senator, I do think of the consequences. 
For instance, I would tell you if I had a barge that was in a 
reach of the river that would be grounded immediately, and it 
had a hazardous material on it, I would be thinking very 
seriously about making a different decision, but I do not have 
that situation right now.@
    Senator Hagel. Let me ask you this, because I know my time 
is about out, and I thank you, Mr. Chairman, where do we go 
from here?
    General Fastabend. Senator Hagel, I would suggest we have 
to continue to advance the process, allow the Fish and Wildlife 
Service to pursue their consultation, to come up with a 
consolidated position and move it forward. The sooner we can 
move the process forward----
    Senator Hagel. What does that mean?
    General Fastabend. We need to get to the step of producing 
a final environmental impact statement, allowing a 30-day 
comment period on that. Based on that comment, I need to sign a 
record of decision, and we need to update the water control 
manual.
    Senator Hagel. Well, I know my time is up. I would just, 
until we come back around, if we have another round, strongly 
suggest that you get the General to go see the chairman. It 
might be in everyone's best interest to get that done.
    Thank you, Mr. Chairman.
    Senator Dorgan. Following on that question, if I might, 
before I call on Senator Johnson, I think Senator Hagel was 
trying to sense, is there a time frame here? Is there a target 
date? I mentioned the May target date. Now you are involved in 
private discussions internally. Is there an end date for those 
discussions? Is there a target date?
    General Fastabend. In our informal discussions with the 
Fish and Wildlife Service we are shooting at a goal of trying 
to conclude our informal consultation the end of July. That may 
be difficult to meet. This recent event on the Missouri River 
last week takes a lot of the attention of the same people that 
are trying to do the informal consultation, so we are already 
beginning to wonder if we can make our internal goal of 
completing the informal consultation by 31 July.
    Mr. Chairman, there are differences of opinion between 
good, honest, hardworking professionals on each side that are 
trying to do their job. It might turn out that the results of 
the informal consultation will be a decision that we have to go 
to formal consultation under the Endangered Species Act. That 
could change our time line. However, we are still working as 
hard as we can to get the Final Environmental Impact Statement 
out and to meet our goal of doing the record of decision in 
October 2002. That is what we are trying to do.
    Senator Dorgan. Well, General, we have differences of 
opinion here in the Senate every single day, and we just have a 
debate and then we make a decision. I mean, that is just--you 
just make decisions, and my great angst here is that 12 years 
goes by, still no decision, and more concern now about a 
decision that may not come for some while.
    Senator Johnson.
    Senator Johnson. Well, thank you, Chairman Dorgan. Thank 
you to all the members of this panel. I think it has been very 
helpful. Welcome, General Fastabend. As the father of a son who 
served in Bosnia with the U.S. Army I concur that your 
background there, particularly the combat aspect, may serve you 
well in your current role.
    General, may I first ask you your assurance that you and 
the Corps will work in a very conscientious manner with our 
Indian tribes along with the rest of the entities that you have 
to deal with on the management of the Missouri River? As you 
know, the Lower Brule and Crow Creek tribes in my State of 
South Dakota have filed suit over Lake Sharpe's operations, and 
it is important that we recognize the Government's unique 
relationships that we have with our tribes and the particular 
concerns that they have relative to the management of the 
Missouri River.
    General Fastabend. Senator Johnson, you have that 
assurance. We will continue to work hard with the tribes, 
recognize our obligation to and our consultation with them, and 
deal with them on a Government-to-Government basis.
    Senator Johnson. General, it is my understanding that you 
have had some 55,000 public comments so far relative to the 
management of the Missouri River. Is there any way that you 
could characterize the direction of those comments, whether 
they support the status quo, they support a preferred 
alternative incorporating a return to natural river flows, or 
any other characterization that you could give to those 
comments?
    General Fastabend. Senator, I can give you an idea of the 
flavor of how you sort through 55,000 comments. I can tell you 
45,000 were identical e-mails, the same message launched 
through the power of automation, so that gets you down to 
10,000 and your life is feeling a little bit better right away.
    Senator Dorgan. Can you describe those 45,000 identical 
messages?
    General Fastabend. Those 45,000 identical messages were in 
support of a spring rise and lower summer flows, so you have 
that input. The rest of the input generally reflected the wide, 
divergent range of interests on the river as you have heard in 
the testimony here this morning.
    Senator Johnson. Well, General, I think you can understand 
the concern that some of us would have that the Corps was on 
the verge of disclosing its preferred alternative, then with 
the Bush announcements on June 14 that it would indefinitely 
postpone the Final Environmental Impact Statement, that there 
is the appearance of political intervention versus the need for 
additional scientific analysis on this issue, and the 
frustration that many would have and the perception that an 
issue which ought to involve less politics and more science and 
more economics has in fact been hijacked by political concerns.
    Is there anything you can share with us that would lead us 
not to believe that this is simply a political intervention and 
not a need for any further scientific and economic analysis.
    General Fastabend. Senator Johnson, I can tell you the 
nature of the informal consultations we are having. They are 
not political consultations. They are not additional studies. I 
mean, there is generally broad agreement on the nature of the 
science and the economic analysis associated with these 
decisions. The devil is always in the details, and people have 
a different perspective on how to interpret the available 
science, they have different perspectives on how to apply that 
available science, and we have people that have invested a 
decade of their lives in trying to resolve this issue, and as 
you can imagine, they feel strongly about it.
    Both my counterpart in the Fish and Wildlife Service and I 
are telling our staffs, get past the emotion and drive to 
facts, just work to facts, and that is what we are doing. We 
are methodically understanding each other's differences of 
interpretation, and we are working very hard to resolve that. 
From my perspective it is all about understanding where people 
are coming from and why they interpret things the way they do, 
and sharing information, and working our best in a 
collaborative way to come up with a position that best serves 
the needs of the basin and the species.
    Senator Johnson. Well, we want good analysis, we certainly 
want thorough consultation, but I share with Senator Dorgan the 
thought that at some point we need an end point where a 
decision has simply got to be made, and this cannot continue to 
be stretched out in some sort of infinite pattern.
    Chairman Dorgan, I am going to have to excuse myself. I 
regret that, because we have an excellent next panel that is 
going to be here, including Mr. Doug Hofer from the South 
Dakota Department of Game, Fish, and Parks. There are a number 
of questions that I would like to ask of that particular panel, 
and I would request your indulgence and permission to submit 
those questions to that panel and to Mr. Hofer for their 
response.
    Senator Dorgan. Without objection, we will include them.
    Senator Johnson. I yield back my time.
    Senator Dorgan. Senator Johnson, thank you very much. let 
me just ask a couple of additional questions, and then we will 
get to the next panel.
    General Fastabend, if the informal consultations do not 
provide some kind of closure, and you must go to formal 
negotiations, can you restate for me what that means in terms 
of time?
    General Fastabend. Senator Dorgan, the nature of informal 
consultations, of course, is that under the Endangered Species 
Act there is not a rigorous time line. My understanding is when 
we go to formal consultation under the Endangered Species Act, 
Section 7 does apply a time line which is typically 135 days; 
90 days to get a response and then 45 days to write it up, so 
if we go to formal consultation, at the point that we do, we 
would look for a 135-day time limit.
    The other thing I can tell you, Senator, with respect to 
time, is that under the current Incidental Take Statement of 
the Fish and Wildlife Service's biological opinion, I have an 
obligation to make changes on the system in 2003. I am very 
conscious of this obligation, and so I am very highly motivated 
to maintain my coverage under the Endangered Species Act and 
meet this time line.
    Senator Dorgan. Mr. Smith, can you tell me, what does the 
biological opinion say with respect to timing? Anything other 
than the 2003 date that the General just described, or is that 
the sole timing issue?
    Mr. Smith. That is the sole timing issue at this time.
    Senator Dorgan. Mr. Smith, I understand you have some 
technical people with you. Are you or your technical people 
aware of any recommendation that has been made by the Corps of 
Engineers with respect to a preferred alternative?
    Mr. Smith. The Corps of Engineers has come to us with some 
ideas and asked for us to engage in informal consultation with 
them. We are currently working through that process, look at 
all of the available conservation measures that are in order to 
assist the Corps in coming up with a final preferred 
alternative so that we can then proceed with formal 
consultation in an expedited manner.
    Senator Dorgan. Let me ask you or your technical person if 
the Corps had proposed to you a 5-year plan during which there 
was no spring rise, and some sort of studying during that 
period, would that comply with the Endangered Species Act in 
your judgment?
    Mr. Smith. Well, I think what we would have to do is to 
take a look at the entire regime in which the Corps is 
proposing to operate the system and all available conservation 
measures that they would build into that model before we can 
make an assessment on whether or not that the action will 
result in jeopardy to listed species.
    Senator Dorgan. Well, last year during the consideration on 
the Energy and Water Appropriations Act, we put a provision in 
the act that allows consideration of alternatives for achieving 
species recovery other than the alternatives listed in the 
biological opinion. Are those alternatives being considered 
and, if so, what are they?
    Mr. Smith. We are currently considering all available 
possibilities and all possible conservation tools. We are not 
ruling out anything at this time. Some of them would include 
manual manipulation of habitats and off-channel spawning areas.
    There is quite a lengthy list that we would be more than 
happy to provide your office.
    Senator Dorgan. All right. General Fastabend, one last time 
if I might, with respect to the period towards the end of May, 
when we expected to hear a preferred alternative from the 
Corps. You will not tell me the preferred alternative, so I 
will have to try to get General Flowers here if we can. Can you 
describe to me at least the circumstances under which it was 
determined that no such preferred alternative would be 
announced to Congress? Was there a big red light that went on, 
or was there a door that shut somewhere, was there a telephone 
call made? If so, what was the origin of that?
    General Fastabend. The Fish and Wildlife Service and the 
Corps of Engineers at the senior levels made the decision that 
the process would best be served if it was a nonpublic 
interagency process.
    Senator Dorgan. All right, and that would be General 
Flowers and perhaps Secretary White in your shop?
    General Fastabend. From my perspective, I am sitting here 
sweating bullets because I have told you General Flowers. In 
fact, it is his Deputy that represents him. General Griffin is 
my typical point of contact on this issue, but of course he 
represents General Flowers for many things that General Flowers 
is responsible for. In my primary dealings, I get my 
instructions through General Griffin.
    Senator Dorgan. We will assume it is General Flowers unless 
you call me back and tell me otherwise. Knowing General 
Flowers, my expectation is, this decision would not be made 
without his active involvement.
    Mr. Smith, who at the head of your agency would have been 
involved in making these decisions?
    Mr. Smith. I am not sure if we were involved in making any 
decisions at all.
    Senator Dorgan. Well, the General just said the folks at 
the head of your agency were.
    Mr. Smith. I understand what the General said, but the 
people who would have been involved would be Steve Williams, 
Director of the U.S. Fish and Wildlife Service, and Judge Craig 
Manson, the Assistant Secretary for Fish and Wildlife and 
Parks.
    Senator Dorgan. I will send you a question on this. Would 
you inquire inside your agencies so that I can understand what 
happened at that moment? Who was engaged in deciding, we are 
going to put the brakes on? I need to understand that so I can 
understand the process here. Who has control of the stop and go 
buttons, and what the motives are to push certain buttons?
    All right, let me thank all of you for being here and 
testifying. Mr. Hawks, let me send you some written questions, 
if I might, on the transportation issues, and General 
Fastabend, let me again say I mean no disrespect, I appreciate 
your service to our country, but I do mean to be pushy with 
respect to the Corps of Engineers. I have no more patience on 
this issue.
    This issue should have been resolved a number of years ago, 
and it is not, and it now appears to me to be an illusive 
finish line once again, and I am not just speaking on my 
behalf. I am speaking on behalf of thousands and thousands and 
thousands of people, and endangered species, and on behalf of 
sound public policy and good science. And as I said when I 
started, I worry that there is circling this issue a barrelful 
of politics and a thimbleful of policy. I hope that is not the 
case, but I worry that that has been the case, especially in 
recent months.
    As Senator Johnson said, I think we ought to just plow 
ahead here and make decisions on sound science and good 
economic policy, and there need not be any, or at least much 
additional study. This has been studied to death. If there is 
anything in my public career that I have seen studied, 
restudied, and studied once again, it is this issue, and I 
think it needs very little more study. What it needs is some 
action.
    But again, let me say thank you for preparing testimony and 
presenting it to us, and I expect that we will have additional 
encounters on this very interesting subject. Thank you very 
much.
    As they depart, let me call the next witnesses to the 
table. The next panel will include four witnesses, Dale Frink, 
State Engineer, North Dakota State Water Commission, Bismarck, 
North Dakota, Doug Hofer, director, Division of Parks and 
Recreation, South Dakota Department of Game, Fish, and Parks, 
Pierre, South Dakota, Michael Wells, chief of water resources, 
Missouri Department of Natural Resources, Jefferson City, 
Missouri, and Tex Hall, chairman of Three Affiliated Tribes, 
Fort Berthold Indian Reservation, New Town, North Dakota.
    Let me ask that we have people take their seats and ask the 
witnesses to please come forward. While the witnesses are being 
seated I am going to include in the record without objection 
testimony by Richard Opper--we will include their titles--
Dennis Hill, Chad Smith, and the Standing Rock Sioux Tribe.
    Let me thank this panel for being with us today, and let me 
also ask consent that we include in the record a statement by 
Jonathan Bry and also Jill Denny-Gackle, and we will include 
the organizations for which those statements apply.*
---------------------------------------------------------------------------
    * Statements can be found in the appendix.
---------------------------------------------------------------------------
    Senator Dorgan. Mr. Frink, why don't we begin with you. Why 
don't you proceed. Your entire statement will be made a part of 
the record, and you may summarize.

 STATEMENT OF DALE L. FRINK, NORTH DAKOTA STATE ENGINEER, AND 
   CHIEF ENGINEER-SECRETARY TO THE NORTH DAKOTA STATE WATER 
                           COMMISSION

    Mr. Frink. Thank you, Mr. Chairman.
    Mr. Chairman and members of the subcommittee, my name is 
Dale Frank, North Dakota State Engineer. Thank you for the 
opportunity to testify on this very important issue. Today, I 
present the same strong, clear, and consistent message that 
North Dakota and other Missouri River Basin States have been 
voicing for years. The Missouri River master manual must be 
changed to meet the contemporary needs of the basin. The time 
of change is long overdue.
    The Flood Control Act of 1944 envisioned many benefits, and 
for the most part the Missouri River dams have fulfilled these 
expectations, but things change in 60 years, and a more 
detailed look at today's uses is very revealing. Flood control, 
power generation and water supply certainly have all lived up 
to their original expectations. In fact, all have significantly 
exceeded the original estimates, providing hundreds of millions 
of dollars of benefits.
    On the other extreme, upper basin irrigation development 
and downstream Missouri River navigation have not even come 
close to realizing their expectations. In North Dakota, we were 
promised over 1 million acres of irrigation for our 500,000 
acre contribution of prime river bottomland for the Garrison 
and Oahe reservoirs. Unfortunately, the dams flooded out more 
acres than were actually under irrigation in 1944 than the 
State has received back from the Pick-Sloan plan. Likewise, 
downstream navigation was expected to move 20 million tons of 
goods annually. That projection has proven unrealistic, with 
current levels of navigation being a paltry 1.5 million tons of 
goods annually.
    Recreation, on the other hand, has far exceeded 1944 
estimates. Today, recreation is big business along all reaches 
of the Missouri River. In North Dakota, Lake Sakakawea and Lake 
Oahe provide major recreation opportunities to tens of 
thousands of residents and visitors to the State. The Corps 
estimates that the national economic benefits from recreation 
add $84.7 million annually, compared to $6.9 million for 
navigation. The current master manual was developed largely in-
house by the Corps of Engineers in the 1960's. It predates the 
passage of NEPA, the Threatened and Endangered Species Act, the 
Clean Water Act, and many other Federal laws passed to protect 
the environment. The master manual for the Missouri River must 
reflect these changes.
    We are very pleased that the Corps of Engineers is 
considering five alternatives to the current master manual. All 
five alternatives conserve water in the main stem reservoirs 
during times of drought, a recurring plague in the Northern 
Plains. Conserving water in the reservoirs during dry periods 
improves conditions for fish survival and recreation. It also 
translates into more hydropower production.
    If any of these alternatives would have been in place 
during the droughts of the 1980's, Lake Sakakawea would have 
been 4 to 6 feet higher than under the current plan. This would 
translate into far better fish habitat, more efficient 
hydropower generation, and an overall improvement in the 
economy of the areas that border the Missouri River System.
    The nine members of the Missouri River Basin Association 
have worked very hard to reach agreement on changes to the 
master manual. In November 1999, seven of the eight member 
States agreed to support a revised plan that included drought 
conservation measures for the main stem reservoirs, increased 
monitoring, and the formation of a recovery committee to 
facilitate the concept of adaptive management of the river 
system. This plan is very similar to the Corps' modified 
conservation plan.
    In February 2000, MRBA agreed to expand its 1999 
recommendations in view of the U.S. Fish and Wildlife Service's 
biological opinion that spring releases from Gavins Point Dam 
be increased to help recover certain threatened and endangered 
species. Six of the eight States agreed to support this 
recommendation. The MRBA recommendation is rather complex, and 
is more completely described in Richard Opper's testimony that 
has been provided.
    I am extremely disappointed that the Corps has chosen not 
to identify a preferred alternative. The lack of a preferred 
alternative further confuses public comment on a subject that 
is inherently complicated. I strongly disagree with the Corps' 
go-slow approach, especially since all of the alternatives will 
greatly improve conditions to the master manual.
    Though the Missouri River and the operations of the dams 
are critical to the future of North Dakota, we realize all 
States in the basin depend on the river. Clearly, any changes 
in the master manual must support adequate water supplies for 
all cities and industries along the river. This need was 
carefully evaluated by MRBA members before agreeing to support 
their ultimate recommendation.
    We and most of our neighbors also agree that the upstream 
and downstream interests must equitably share the pain during 
the periods of drought. I urge the Corps of Engineers to adhere 
to its current schedule for completing the master manual 
revision process. The time for equitable distribution of 
benefits of the Missouri River operations and equitable sharing 
of water shortages is now.
    There is no question that any of the five proposed 
alternatives is a significant improvement over the current 
master manual. The results of the many economic, hydrologic, 
and environmental studies and restudies clearly illustrate the 
Missouri River System can be better managed to benefit us, our 
children, and the entire Missouri. As a final thought, the five 
main steam dams authorized by the 1944 Flood Control Act were 
constructed in 18 years. If the master manual is revised in 
2003, it will have taken 14 years. 14 years is long enough and 
further delays are not acceptable. The time has come to meet 
the contemporary water needs of the entire basin.
    Thank you.
    Senator Dorgan. Mr. Frink, thank you very much. Let me next 
call on Mr. Michael Wells, chief of water resources, Missouri 
Department of Natural Resources.
    Mr. Wells, thank you. You may proceed.

  STATEMENT OF MIKE WELLS, CHIEF OF WATER RESOURCES, STATE OF 
                            MISSOURI

    Mr. Wells. Good morning, Mr. Chairman. My name is Michael 
Wells. I am chief of water resources for the State of Missouri. 
I want to thank Senator Dorgan for inviting me to give 
testimony on this very important issue. I also would like to 
thank Senator Carnahan for making a request to Senator Dorgan 
that a representative from the Missouri Department of Natural 
Resources be allowed to testify on this critical matter.
    Because the Missouri River is such a vital resource to the 
State of Missouri, all members of the Missouri congressional 
delegation and Governor Bob Hilden, representing more than 5.6 
million people, speak with one voice to ensure that changes in 
Missouri River management will not harm the citizens of our 
State.
    In Missouri, the Missouri River means drinking water for 
over half of our citizens, cooling water for our utilities, 
water to support navigation, unique recreational opportunities, 
and a valuable fish and wildlife habitat. The State of Missouri 
strongly opposes any changes in the management of the Missouri 
River that would be adverse to any of these uses.
    We, too, are concerned that decisions regarding the future 
management of the Missouri River have not yet been made. 
Uncertainty and conflict have made long-term planning 
investments for Missouri River communities a tenuous task at 
best. However, since decisions on the future management of the 
Missouri River will have a profound and lasting impact on our 
Nation's welfare, we must ensure that the best plan possible be 
made.
    As painful as delays can be, the State of Missouri does not 
support a premature decision that is made to meet arbitrary 
deadlines or political agendas. Reliable flows from the 
Missouri River are not only economically and environmentally 
important for the Missouri River, but for the Mississippi River 
as well. In times of drought, the Missouri River provides as 
much as two-thirds of the flow of the Mississippi River at St. 
Louis. This stretch of river between St. Louis and Cairo, 
Illinois, is often referred to as a bottleneck reach. Located 
between the locks and dams on the Upper Mississippi River and 
the Ohio River, low water in this reach can created a large 
bottleneck in the movement of bulk commodities, impacting the 
entire inland waterway system.
    Because any decision to change the management of the 
Missouri River has far-reaching impacts, it is imperative that 
the impacts for the Mississippi River be fully analyzed, the 
information made available to the public prior to review prior 
to making any decision on a preferred alternative. A poor 
decision could have devastating impacts to our Nation's inland 
waterway system. That is why eight Missouri River Governors 
have joined Governor Bob Holden on more than one occasion to 
ask President Bush to ensure that the U.S. Army Corps of 
Engineers fully analyze all impacts on the Mississippi River.
    Because several key studies have not been finalized on the 
Mississippi River, a decision on a preferred alternative at 
this time is premature. These letters are included in my 
testimony for the record.*
---------------------------------------------------------------------------
    * The letters have been retained in subcommittee files.
---------------------------------------------------------------------------
    In addition to the request made by the nine Mississippi 
River Governors, 16 mayors and county executives along the 
Missouri and Mississippi River have requested that President 
Bush withdraw all the new plans proposed for the Corps of 
Engineers because of unacceptable impacts to the Missouri and 
Mississippi River communities. The State of Missouri continues 
to oppose drastic flow changes below Gavins Point Dam that 
would increase flooding or provide less useable water to the 
downstream States.
    The flow alterations recommended by the U.S. Fish and 
Wildlife Service's biological opinion are much too 
prescriptive, and do not give the Corps the latitude to develop 
management plans that continue the recovery of the ecosystem 
while not harming other uses of the river. Because the Fish and 
Wildlife Service recommendations have such far-reaching 
impacts, a high level comprehensive review of their work should 
be completed prior to selecting a new plan.
    There also is a great concern from downstream users that 
measures proposed by the Corps for drought conservation are so 
extreme that flow support for downstream uses will be 
devastating to both economic and environmental interests. We 
are encouraged that efforts by the Corps and other agencies in 
recent years have improved the Missouri River's ecosystem.
    Under the current master manual there have been significant 
increases in the number of interior least tern and piping 
plover. We have also seen progress and recovery efforts for the 
pallid sturgeon. This progress and recovery of these endangered 
or threatened species has been accomplished without changes in 
downstream flows.
    We applaud the Congress for authorizing additional lands 
for the Missouri River mitigation project. Efforts such as 
these will continue to pay dividends in the recovery of the 
Missouri River ecosystem.
    In closing, decisions should not be made until all studies 
have been completed and the public has had an opportunity to 
review them. The State of Missouri strongly opposes any 
increase in storage in the Missouri River System that benefits 
upstream interests at the expense of downstream water needs. 
The State of Missouri is committed to working with the U.S. 
Army Corps of Engineers, the U.S. Fish and Wildlife Service, 
and all other interested parties to find a workable plan for 
the Missouri River that both enhances the environment and 
ensures the resource remains a river of many uses.
    I want to again thank you, Senator Dorgan and the committee 
for this opportunity to express the State of Missouri's 
position on this important issues, and look forward to any 
questions.
    Senator Dorgan. Mr. Wells, thank you very much. Next, we 
will hear from Director Douglas Hofer, director of the Division 
of Parks and Recreation, South Dakota Department of Game, Fish 
and Parks.
    Mr. Hofer, you may proceed.

  STATEMENT OF DOUGLAS HOFER, DIRECTOR, DIVISION OF PARKS AND 
  RECREATION, SOUTH DAKOTA DEPARTMENT OF GAME, FISH AND PARKS

    Mr. Hofer. Thank you, Senator Dorgan, and I also want to 
thank Senator Johnson for inviting me to appear before the 
committee today. I am the director of the Division of Parks and 
Recreation, and as part of that system of State parks that we 
manage in South Dakota we have 68 areas on the Missouri River 
on four different reservoirs that are part of the Pick-Sloan 
project. This hearing is extremely timely for those of us 
living in South Dakota, where we find ourselves in the grip of 
a prolonged drought. The need for a revised Missouri River 
master manual has never been more critical in the Upper Basin, 
and a contemporary approach to managing this river is long 
overdue.
    Fishing, boating, camping, and other water-related 
recreation on the Missouri River are very important to us in 
South Dakota. Last year, 3 million visits were made to the 
Missouri River recreation and lakeside use areas managed by our 
State of South Dakota. This included 70,000 overnight camping 
units, over 500,000 angler days of fishing. These angler days 
are worth more than $40 million to South Dakota's economy and 
create hundreds of jobs.
    Interestingly, while the dams and reservoirs bought many 
benefits to the downstream States, navigation on the lower 
Missouri has never developed to its original expectation, and 
while no one even mentioned recreation as one of the project 
benefits back in 1944, it has exploded as a viable industry on 
the main stem reservoirs.
    The current master manual does not adequately address the 
conflict between navigation and recreation. Water releases for 
navigation continue to receive the highest priority in water 
management at a time when the Upper Basin is in the middle of a 
drought. Let me relate this directly to the situation that we 
are facing in South Dakota, and two crises that we have already 
had to deal with this year.
    Our once nationally recognized trophy walleye fishery was 
supported primarily by a prey source of rainbow smelt. Anglers 
came from all over the United States to Lake Oahe to catch 
walleyes. In 1996, there were 2 million hours of fishing just 
on Lake Oahe alone, estimated to be worth $20 million to our 
economy. In 1997, one-half billion adult smelt were flushed 
downstream due to high water releases through Oahe powerhouse 
later in the summer after the threat of flooding downstream had 
passed, exacerbating the crash of Lake Oahe's crayfish 
populations.
    We at the Department of Game, Fish and Parks have worked 
hard in turning this situation around by trying to get anglers 
to return to Oahe in hopes of reducing predator abundance and 
bringing our reservoirs back into balance. Incentives have 
helped increase fishing pressure and predator harvest twofold 
from 2000 to 2001. Predator abundance has been reduced and the 
stage has been set to allow crayfish to recover.
    However, rainbow smelt and other forage fish spawn in 
extremely shallow water, often 6 inches or less, and the worst 
case scenario is one in which lake levels drop after the fish 
have spawned. Rising lake levels greatly enhance crayfish 
survival by protecting them from harsh effects of wind and 
waves. If the lake levels drop below the level in which 
crayfish eggs are deposited, no reproduction will occur.
    This spring we experienced a run of spawning smelt that 
held promise in restoring the prey base and the fishing that 
Lake Oahe enjoyed prior to 1997. Unfortunately, Lake Oahe was 
scheduled to drop more than 2 feet during the time the eggs 
were incubating, leaving them high and dry. The severe drawdown 
of Lake Oahe was being done at a time of drought in order to 
meet navigation targets established in an out-of-date master 
manual.
    Out of desperation to save the fishery and the significant 
economy that surrounds it, our Governor, William Janklow, 
initiated a lawsuit this spring aimed at holding water levels 
on Lake Oahe stable until the smelt spawn was complete. South 
Dakota successfully demonstrated to the court that the 
arbitrary operation of the main stem reservoir in general, and 
Oahe Reservoir in particular, had severely harmed Oahe's fish 
population. This set off a string of lawsuits throughout the 
basin that ultimately led to other restraining orders and an 
appeal by the Corps of Engineers to the Eighth Circuit Court of 
Appeals.
    These extreme measures simply point to the need for a 
contemporary master water control manual for the Missouri 
River, something the Corps of Engineers has been working on and 
delaying for 13 years, long enough for the Upper Basin States 
to experience two droughts.
    By the end of the year, we will be approaching the lowest 
water levels recorded on Lake Oahe since the dams spilled in 
the early 1960's, over 30 feet below full pool level. We sit on 
the bring of losing all boating access on this huge lake if the 
drought persists. Right now we have 31 boat ramps in South 
Dakota. That does not count the boat ramps on Lake Oahe in 
North Dakota, but 31 ramps on Lake Oahe in South Dakota.
    The primary ramps at 13 of these sites are out of service 
today because of the low water. By the end of the summer, we 
expect seven more to be out of service. That is two-thirds of 
the boat ramps. If the trend continues that we are on today and 
no change is made in the way that the river is managed, the 
drought continues, all of our boat ramps on Lake Oahe will be 
out of service by this time next year.
    The effects of low water have reduced visitation to Lake 
Oahe this summer, and closing more boat ramps will lead to 
further decline in visitation. If the current trend continues, 
nearly all of the $20 million economy associated with 
recreation on just Lake Oahe will be lost next year. The 
recreation and fisheries management challenges being presented 
in the drought year of 2002 provide a compelling example of why 
a new master control manual is needed.
    Thank you.
    [The prepared statement of Mr. Hofer follows:]
 Prepared Statement of Douglas Hofer, Director, Division of Parks and 
      Recreation, South Dakota Department of Game, Fish and Parks
    Thank you for inviting me to appear before the Subcommittee on 
Water and Power of the Committee on Energy and Natural Resources to 
discuss water management issues on the Missouri River. I am Douglas 
Hofer, and I appear before you representing the State of South Dakota 
on behalf of the South Dakota Department of Game, Fish and Parks. This 
hearing is extremely timely for those of us living in South Dakota, 
where we find ourselves in the grip of a prolonged drought. The need 
for a revised Missouri River Master Water Control Manual has never been 
more critical in the upper basin and a contemporary approach to 
managing this river is long overdue.
    First of all, let me comment on the obvious: The dry conditions in 
the basin this year are creating a hardship for us in the upper basin 
states. These times of low runoff demonstrate the continuing and 
critical need for a new Master Manual which takes an adaptive 
management approach to water supplies and water flows within the basin 
on an annual basis.
    Fishing, boating, camping, and other water-related recreation on 
the Missouri River are very important in South Dakota. Last year, three 
million visits were made to Missouri River recreation and lakeside use 
areas in our state. This included 70,000 overnight camping units and 
over 500,000 angler days of fishing. These angler days are worth more 
than 40 million dollars to South Dakota's economy and create hundreds 
of jobs.
    It's worth noting here that, under the original Pick-Sloan Plan in 
1944, our nation embarked upon a plan to harness this great river. We 
South Dakotans realized that there was going to be a price to pay, 
because rich bottom lands in South Dakota and in the other upper basin 
states were forever flooded so people in places like Sioux City, Omaha, 
Council Bluffs, Kansas City, and St. Louis could be free from 
devastating floods. We were willing to make sacrifices because as it 
was proposed, in exchange for having our lands flooded and our people 
moved from lands they and their parents had homesteaded and settled, 
the Pick-Sloan Plan included promises of prosperity to South Dakota. In 
exchange for our priceless bottom land, we were promised irrigation of 
some 750,000 acres and water supply projects to our cities and towns 
promises that would help provide a way of life for our farmers, tribal 
members, and businesses by stabilizing an economy that was all too 
dependent on Mother Nature. Related to these promises were additional 
promises of wildlife mitigation for the hundreds of thousands of 
habitat acres lost to the dams.
    However, something happened along the way! Somehow, after the dams 
were built and our downstream neighbors could forget about the terrible 
floods while enjoying the benefit of cheap electric rates and 
subsidized barge traffic carrying commodities between their cities, 
they forgot about the promises to South Dakota and our upstream 
neighbors. They, and the agencies of the federal government, forgot 
that their benefits came at a direct and terrible price to South 
Dakota. They forgot that in exchange for their new found prosperity and 
development along their sections of the Missouri River, hundreds of 
thousands of acres of our richest ranching, farming and wildlife lands 
were taken by the federal government and forever flooded.
    Interestingly, while the dams and reservoirs brought many benefits 
to the downstream states, navigation on the lower Missouri has never 
developed to its original expectations. And, while no one even 
mentioned recreation as one of the project benefits back in 1944, it 
has exploded as a viable industry on the upper basin mainstem 
reservoirs. In fact, as you know, the COE Revised Draft Environmental 
Impact Statement for the Missouri River Master Water Control Manual 
credits recreation with $84.6 million in annual benefits while 
navigation creates a mere $6.9 million in annual benefits.
    So, as you can see, we are at a major crossroads today. The Corps 
continues to operate the reservoirs by an outdated Master Control 
Manual. Some of the original purposes of the Pick-Sloan Plan, like 
hydropower and flood control, are still valid today. However, the 
current Master Manual does not adequately address the conflict between 
navigation and recreation. Navigation still takes water to support a 
barge channel and during times of drought and water shortages the upper 
basin recreation industry suffers accordingly. To keep a full 
navigation channel below Sioux City, Iowa, our reservoirs are drained 
and our boat docks left high and dry. An $84.6 million industry that 
offers recreational benefits to hundreds of thousands of people is held 
hostage to a declining and subsidized barge industry which has a $6.9 
million annual impact. In summary, not only did the people of South 
Dakota get to stare at the empty promises of irrigation and water 
supply, but we now get to stare at declining reservoir water levels as 
our recreation industry goes down the drain to St. Louis.
    We have often wondered how many jobs the barge industry creates. We 
now have that number 25 to 40! Are we in South Dakota hearing right? 
Are we, as a Nation, continuing to support a barge industry supplying 
25 to 40 jobs a year having an economic impact of only $6.9 million a 
year when the overall costs to the taxpayers to maintain the barge 
canal costs more than the entire industry is worth? And water releases 
for navigation continue to receive the highest priority in water 
management at a time when the upper basin is in the middle of a 
drought?
    Let me relate this directly to the conditions we are facing on the 
Missouri River in South Dakota this year. Our once nationally 
recognized trophy walleye fishery was supported primarily by a prey 
source of rainbow smelt. Anglers came from all over the United States 
to Lake Oahe to catch large walleyes. In 1996, there were two million 
hours of fishing just on Lake Oahe, estimated to be worth $20 million 
dollars. In 1997, a half billion adult smelt were flushed downstream 
due to high water releases through the Oahe powerhouse intakes and 
stilling basin exacerbating the crash of Lake Oahe's prey fish 
populations. Following the prey fish population crash, the walleye 
fishery began to suffer. By the year 2000 fishing pressure had dropped 
to only 25 percent of what it had been and the economic value also fell 
to only $8 million dollars. Many businesses and communities which 
depend on fishing and related recreation have been affected negatively.
    We at Game, Fish and Parks have worked hard at turning this 
situation around by trying to get anglers to return to Oahe in hopes of 
reducing predator abundance and bringing our reservoir back into 
relative balance. Incentives have helped increase fishing pressure and 
predator harvest two-fold from 2000 to 2001. Predator abundance has 
been reduced in the lower two-thirds of Oahe and the stage has been set 
to allow prey fish to recover. However, rainbow smelt and other prey 
fish spawn in extremely shallow water, often 6 inches or less, and the 
worst case scenario is one in which lake levels drop during and after 
the fish have spawned. Rising lake levels greatly enhance prey fish 
survival by protecting them from the harsh effects of wind and waves. 
If lake levels drop below the level at which prey-fish eggs are 
deposited, death through desiccation is ensured.
    This spring, we experienced a run of spawning smelt that held the 
promise of restoring the prey base and the fishing that Lake Oahe 
enjoyed prior to 1997. Unfortunately, Lake Oahe was scheduled to drop 
more than two feet during the time the eggs were incubating leaving 
them high and dry. This severe draw down of Lake Oahe was being done at 
a time of drought in order to meet navigation targets established in 
the out of date master manual. We already had four years of intense 
fishery management invested in the turn-around of Lake Oahe.
    Anglers and businesses in central South Dakota had sacrificed long 
enough. To my knowledge, the barge industry has not sacrificed at all 
but continues to ``have their cake and eat it too'' at the expense of 
the recreation industry in the upper basin.
    Out of desperation to save the fishery and the significant economy 
that surrounds it on Lake Oahe, Governor William Janklow initiated a 
lawsuit this spring aimed at holding water levels on Lake Oahe stable 
until the smelt spawn was complete. South Dakota successfully 
demonstrated to the Court that the arbitrary operation of the mainstem 
reservoirs in general, and the Oahe Reservoir in particular, had 
severely harmed Oahe's fish population.
    This set off a string of lawsuits throughout the basin that 
ultimately led to other restraining orders and an appeal by the Corps 
of Engineers to the Eighth Circuit Court of Appeals. These extreme 
measures simply point to the need for a contemporary master water 
control manual for the Missouri River something the Corps of Engineers 
has been working on and delaying for over 13 years, long enough for the 
upper basin states to experience two drought cycles.
    Since May 21, 2002, Lake Oahe's water level has dropped from 
elevation 1596.2 to 1592.5, a drop in the water level of 3.7 feet in 
this 300,000 acre lake in just over a month. Full pool on Lake Oahe is 
at elevation 1618, over 25 feet higher than Lake Oahe is today. If the 
drought continues this summer, the Corps of Engineers has predicted 
that Lake Oahe will drop another six feet by the end of September. By 
the end of the year we will be approaching the lowest water level 
recorded on Lake Oahe since the dams filled in the early 1960s after 
the completion of the Pick Sloan project.
    The extremely low water level has already had a negative affect on 
Lake Oahe recreation and its associated recreation economy. We sit on 
the brink of losing all boating access on this huge lake if the drought 
persists and the Corps of Engineers continues to use an outdated master 
manual, a manual that directs the use of over sixteen billion gallons 
of water per day to support a very small barge industry at a time when 
the upstream states are suffering from a severe drought.
    Thirty-one boat ramp sites exist on Lake Oahe in South Dakota. The 
primary boat ramps at 13 of these sites are out of service today due to 
the low water levels, and it is expected that another 7 primary boat 
ramps will be out of the water by the end of the summer. If the drought 
continues for another 12 months and no appreciable changes occur in the 
management of the river flows under the current master manual, all 31 
primary boat ramps will be out of service on Lake Oahe by June of next 
year. What is even worse is that under the current master manual, 
navigation would continue to demand water releases until this reservoir 
is drawn down a total of 78 feet to elevation 1540, the elevation at 
which it is physically impossible to release water through the intakes.
    The effects of low water have reduced visitation to Lake Oahe this 
summer and closing more boat ramps will lead to a further decline in 
visitation. If the current trend continues, most of the $20 million 
dollar economy associated with recreation on Lake Oahe will be lost 
next year. This will be devastating for resorts, marinas, motels, 
restaurants, bait shops and many other businesses in central South 
Dakota that depend on the visitors that come to Lake Oahe each year.
    This river is in a state of decline. The time has come to change 
how water is managed for the Missouri River. The recreational and 
fisheries management challenges being presented in the drought year of 
2002 provide a compelling example of what is at stake for the State of 
South Dakota and for all the other upper basin states.

    Senator Dorgan. Mr. Hofer, thank you very much.
    Next, we will hear from Tex Hall, chairman of Three 
Affiliated Tribes. I might also say that Mr. Hall is president 
of the National Congress of American Indians, and we welcome 
you here.

STATEMENT OF TEX HALL, CHAIRMAN, THREE AFFILIATED TRIBES, FORT 
           BERTHOLD INDIAN RESERVATION, NEW TOWN, ND

    Mr. Hall. Thank you, Mr. Chairman, for having this 
oversight hearing on a very important issue and, of course, 
that is grandfathering our language in the Missouri River. Just 
about a 30-second history of our tribe as you know, Mr. 
Chairman, Fort Berthold is located on the west central boundary 
of North Dakota, and our history predates the State and, of 
course, our people had Sakakawea, who we lent to Lewis & Clark 
when they did the expedition out to the west coast, and so the 
contributions are many for our people.
    And before the 1944 Flood Control Act came into being our 
tribe was one of the few 100 percent self-sufficient tribes, no 
unemployment, no welfare, completely self-sufficient because of 
the river, before they had the dams, and so we got our food, we 
raised our gardens, and before the flood came in, of course, 
when the 1948 Army Corps of Engineers came in and did not 
provide any consultation, it was to me one of the worst Federal 
removal projects in the history of this country.
    The Garrison Dam created Lake Sakakawea, which flooded out 
156,000 acres of our capital, and it was very interesting to 
hear Senator Carnahan and Senator Bond and other Senators talk 
about loss of homes, loss of jobs, loss of shoreline. We know 
all about that, and it happened 60 years ago, and our 
grandparents, basically our parents have said what happened in 
the loss of that 156,000 acres was, we really lost our economic 
engine. There is no way that can ever be replaced and, of 
course, we are very grateful for you, Mr. Chairman, and Senator 
Conrad for the Equitable Compensation Act that was partial 
compensation for what we lost, but we can testify for hours 
about what we lost, and the devastation of the dam that 
created.
    And so 60 years later now we are just starting to replenish 
and rebuild our economy, and I concur with a lot of the 
speakers here now that now that you have the loss of the lake 
levels, we have a lot of recreation areas at Fort Berthold now, 
and it is a big part of our economy, and now we have boat docks 
that we cannot access, we have people that are not going to 
that part of the lake, and I concur with Mr. Hofer and some of 
his--I have been down to Standing Rock, and I have seen the 
Oahe Reservoir. It is a terrible scar. It is an ugly scar to 
see the lake levels drop, and so we are very concerned and very 
disappointed in the Corps' lack of decision, and I appreciate 
your comments, Mr. Chairman, on trying to get to some sort of a 
resolution or answer to that.
    We, too, I mean, all of the tribes have been--we just met 
yesterday in Bismarck on the Trust Reform Task Force on 
Reorganization. We believe as tribes that under the Winters 
doctrine the river is a trust asset, and we feel it is being 
mismanaged.
    Just like in the Cabell litigation on the Department of the 
Interior trust assets mismanagement, where we cannot account 
for billions of dollars in the Department of the Interior, now 
we are having mismanagement of the river, which clearly there 
is a legal obligation here to the Indian tribes, and I was very 
appreciative of General Fastabend's comments about the--I think 
it was when Senator Hagel asked him what criteria he used when 
he was making his decisions, one of the criteria--he named 
three, was recognition of the trust responsibility to Indian 
tribes, and so I was very appreciative of that, and we want to 
hold him to that, and I am glad he said that on the record, 
because that is very important to us.
    One of our big concerns is the lack of consultation with 
the tribes. We did put up many, many comments in my testimony, 
Mr. Chairman, written testimony submitted for the record, and 
we submitted many, many comments about the need for full and 
meaningful consultation, because there is a legal obligation, 
because the water is under the Winters doctrine a trust asset 
of the tribe, but we are concerned that there is not enough 
consultation.
    And I do not know if there ever was a specific answer from 
General Fastabend about the time frame, but we had asked for an 
Indian desk at the headquarters in the Army Corps of Engineers, 
so we have a point of contact, so we can get resolutions as 
well, and answers to some of our questions, and we would ask 
for your help, Mr. Chairman, in getting that desk established 
at Army Corps of Engineers Headquarters here, so that is very 
important.
    Let me just give some recommendations, Mr. Chairman, what 
we think can be done. The first recommendation we have is, the 
Three Affiliated Tribes and other tribes along the Missouri, is 
pass legislation that creates a joint task force between the 
Corps and the tribes along the river to address tribal 
concerns.
    No. 2 would be, pass legislation allowing the tribes the 
opportunity to manage various aspects of the river management 
system similar to the self-determination action. We are trying 
to work on a joint management agreement right now with the 
Corps, but that has taken many years to get to a point where it 
seems like there is no end in sight, and again if we have 
legislation just similar to the 1993 638 piece of legislation 
of self-determination that allows tribes to help manage, then I 
think that legislation would help us more quickly.
    No. 3, provide the necessary resources to identify, 
protect, and preserve the cultural and historical sites along 
the Missouri River that are sacred to the tribes along the 
river, and there is a need for more than $77 million annually, 
and this is a figure from the Army Corps of Engineers itself. 
However, there is only $3 million appropriated for the fiscal 
year, and some of these sites are the most endangered, and I 
might add, Mr. Chairman, that as the bicentennial approaches 
next year, 2003 to 2006, there is a tremendous amount of 
potential for visitors to come. Unfortunately, many of those 
sites are flooded and inundated underwater, and the sites that 
are remaining are being endangered by the droppage of the lake. 
They say there is between 40 and 80 sites, cultural sites that 
are lost each year because of the droppage of the river, and 
only $3 million appropriated, and the unmet need is $77 
million.
    Our next recommendation would be to strengthen laws that 
are already on the books for cultural site protection. I 
believe that the executive orders on consultation are not 
strong enough. We need legislation to require adequate 
protection to these sacred sites.
    The next recommendation is to pass legislation to provide a 
joint memorandum of understanding with the Corps and the tribes 
for policing of Corps lands along the river and the lakeshore. 
Again, with the bicentennial we feel that there are going to be 
many visitors. If the lake keeps dropping like it is going to 
continue to drop, more sites will be exposed, and the Corps 
does not have the resources to police the shores as it is, and 
so we are asking for legislation to have a memorandum to have 
joint policing by the tribes.
    Another recommendation we have is to set aside revenue from 
the WAPA power sales for cultural site preservation. It is my 
understanding, there are tribes along the Columbia River that 
are doing it with the Bonneville Power Association, and I would 
recommend that we look at that for the WAPA power sales to make 
sure that this legislation does not allow the funds to be used 
for other purposes. In my understanding there is about $866 
million that comes in revenue from the WAPA sales, but if 1 or 
2 percent of that could be set aside for cultural site 
protection, I think that that way we have a guaranteed source 
of revenue.
    Mr. Chairman, I realize my time is up, but these are some 
of the recommendations that we would strongly ask that your 
committee and, Mr. Chairman, with your influence to help get 
that done for the tribes. This affects all the tribes, and as 
was mentioned from St. Louis to the Pacific Northwest.
    So thank you very much for this opportunity.
    [The prepared statement of Mr. Hall follows:]
  Prepared Statement of Tex Hall, Chairman, Three Affiliated Tribes, 
             Fort Berthold Indian Reservation, New Town, ND
    Mr. Chairman, members of the Committee, thank you for the 
opportunity to present testimony on the management of the Missouri 
River on behalf of the Mandan, Hidatsa and Arikara Nation.
                               background
    The issue of management of the Missouri River has always been a 
critical issue to the Three Affiliated Tribes. The Hidatsa call 
themselves ``People of the willows'', because in our origin story we 
emerge from the willows of the river. But all of our three Nations have 
for countless years lived and thrived along the Missouri River, which 
we have long called ``grandfather''. The Missouri River and the history 
of our peoples are inseparable.
    We were the Nations that greeted Lewis and Clark in their famous 
expedition whose commencement 200 years ago was remembered by President 
Bush in a White House ceremony just last week. We provided the famous 
guide, Sakakawea, whose likeness now graces our golden dollar coin. We 
have always been a peaceful people, traders and agriculturalists. 
Before Lewis and Clark came upon us, our culture was complex and well 
suited to our life on the upper Missouri.
    Yet today we find ourselves in a vastly different environment than 
that of our grandfathers and grandmothers. The Missouri River is now 
controlled by a series of dams, conveniently placed, as a former 
Chairman of our Tribe, Carl Whitman, noted in his testimony regarding 
the Equitable Compensation Act in 1991, to have maximum effect on the 
Indian tribes whose reservations and homelands lie directly upriver 
from the dams, placed that way primarily because it was easier to 
condemn Tribal lands than other lands along the river.
    As I have testified before, the effects of these dams has been 
devastating to the cultures, ways of life and the economies of the 
Tribal Nations along the Missouri River. My Nation is only now 
beginning to emerge from the long shadow of the devastation of that 
``great flood'' as our elders have called the creation of Lake 
Sakakawea behind Garrison Dam. This flood took away 156,000 acres of 
prime bottom land.The reservoir stretches from one end of our 
reservation to the other. The reservoir also means that we have lost 
immediate access to the river, as the Corps owns the land adjacent to 
it, part of what is called the ``taken'' area.
    My Nation was the only Tribal Nation of those affected by dams 
along the Missouri River to be split in two parts by its dam. In fact, 
to get from one part of our Nation to another, we must travel outside 
the boundaries of our reservation. What used to be a close knit 
community is now split into widely separated towns, with some 
communities, once a few miles part, separated by 120 miles because of 
Lake Sakakawea.
    We were promised many things by the ACOE at the time we were being 
asked to leave our ancestral homelands and our largely self-sufficient 
way of life along the river. For example, we were promised preferential 
rights to electric power, in fact, many people believe we were promised 
free electric power, being generated by the Garrison Dam. That 
preference has never materialized, although we finally have received, 
along with all other Tribes in the Pick-Sloan Eastern Division area, 
including those not actually located adjacent to the Missouri River, an 
allocation of WAPA power at cost, beginning in January, 2001. That 
helps, but it comes fifty years too late and only provides for one-
third of our needs.
    In addition to the flooding of our homelands, we, the Mandan, 
Hidatsa and Arikara (MHA) peoples are doubly affected by the lakes 
behind those dams, because so much of our history and culture is 
associated with sites along the Missouri River, well down below the 
Gavin's Point dam and on up to and past the confluence of the 
Yellowstone River and the Missouri River. Many of our Mandan, Arikara 
and Hidatsa village sites were along the river and have been lost 
forever because of the flooding behind the dam. Those that remain, as I 
will describe in more detail later, are under continued threat from 
erosion, unauthorized archaeological digs, tourists and others 
scavenging for souvenirs and development along the lakes and short 
sections of river that now make up the Missouri River system.
                    the u.s. army corps of engineers
    Since the construction of the Garrison Dam and the other dams along 
the Missouri River, the fate of my Nation and the fate of other Tribal 
Nations along the Missouri has been inextricably bound up with the 
United States Army Corps of Engineers (ACOE or the ``Corps''), who 
decided where the dams would be built, who constructed the dams, and 
who now, without direct oversight by the affected Tribal Nations, 
control the flow of the river through the dams.During the past nearly 
sixty years, since the dams were authorized and constructed, the ACOE 
has, until recently, paid little attention to the desires of the Tribal 
Nations along the River. This lack of oversight by the Tribal Nations 
most affected by the Corps' management of the river is critical: it is 
like saying that the Rio Grande river along the U.S. border with Mexico 
only belongs to the United States and Mexico has no right to complain 
about how the Rio Grande is managed! The present situation is simply 
not acceptable.
                   the master manual revision process
    However, recently, the ACOE has solicited the views of the Tribal 
Nations along the river because the Corps is now engaged in a process 
of reviewing how the river's flow is and should be managed, a process 
known as ``Revision of the Master Manual''. In developing the revisions 
to the Master Manual, the Corps has come up with a set of ``preferred 
alternatives'', in its Draft Environmental Impact Statement (DEIS) that 
was produced by the Corps following several years with of effort. This 
DEIS has a special section in which the comments of the Tribes were 
collected. We also provided comments on the DEIS. According to the 
Corps, it must now, following the close of the comment period on the 
DEIS, choose to determine how to best manage the river to meet the 
needs of the various groups and people who have an interest in how the 
river flows.
    The preferred alternatives generally provide that the upper river 
reservoirs, Oahe, Garrison, and Ft. Peck, should be the ones that 
provide the regulation for the downstream users. This means that these 
lakes will go up and down depending on the needs downstream, for flood 
control on the lower Missouri, for barge traffic on the lower Missouri 
and for protection of the piping plover and the pallid sturgeon, 
according to the U.S. Fish and Wildlife Service's biological opinion, 
among other things.
    We find these alternatives unacceptable for a number of reasons, 
summarized below.
    1. The alternatives (and the Master Manual) do not provide adequate 
oversight over river management by the affected Tribal Nations along 
the Missouri River.
    As mentioned, the Tribal Nations along the Missouri River are 
sovereigns whose concerns about river management must be taken into 
account as any preferred alternative is considered. Tribal Nations must 
have oversight over the river management process, as they have a 
considerable paramount interest in the waters of the Missouri River 
pursuant to the Winter's Doctrine, which establishes Tribal water 
rights as paramount to other users.
    This means that if a fundamental Tribal interest in the river is at 
stake in the selection of a preferred alternative, the Tribe's 
interests should be given preference over other considerations. This 
may not presently be the law, but it has been the position of the MHA 
Nation that as the paramount water rights holder, the Tribe's position 
should be given preference. Legislation should be drafted that would 
provide for this. We would propose a joint Tribal-ACOE task force be 
mandated like we now have with trust reform to ensure that the concerns 
of the Missouri River tribes are fully addressed in the Master Manual.
    In addition, and apart from the Master Manual process itself, 
Tribes should be given opportunities to take over the management of the 
river itself, which is a trust resource, in a manner similar to self-
determination contracts under the Indian Self-Determination and 
Education Assistance Act, as amended. There are many areas of 
management of the river that could be subject to such self-
determination contracts, some of which are discussed further in this 
testimony.
    2. ``Winters Doctrine'' water rights are not adequately protected.
    In general, the water rights of the Tribal Nations along the 
Missouri under the Winters' Doctrine have not been adjudicated. The 
reason for this lack of adjudication of water rights is relatively 
simple: There has always been enough water in the Missouri to meet 
Tribal needs.
    But occasionally, there are periods of time, such as now, in 
periods of extreme drought in the upper Great Plains, where water 
levels are such that Tribal needs for adequate water levels in Lake 
Sakakawea or in the other reservoirs along the Missouri are not being 
fully met. Lake Sakakawea alone is a major destination for many who 
enjoy fishing for walleye and other fish from the lake. At present, in 
July 2002, water levels are at the point at which many boat docks and 
boat ramps along Lake Sakakawea do not reach the water.These ramps 
serve many recreational users and benefit the MHA Nation, which 
operates several recreational sites along the lake shore, as well as 
other recreational lessees and the State of North Dakota. Our economy 
is greatly affected by a water management scheme which does not 
adequately protect our interests--Tribal members lose jobs, creating 
hardships for our people, and costs to the Tribal, Federal and state 
governments increase as well.
    If these water levels stay low because enough water is released to 
service barge traffic on the lower Missouri, the recreational industry 
for the Tribe is greatly affected. Our revenue at our sites is already 
down for the summer because of the low water levels. We will provide 
the Committee with further statistics about the affects of low water on 
our recreational efforts. Again, this is unacceptable. The needs of the 
Tribal Nations must be viewed as paramount, as mentioned earlier.
    Even worse is that these water levels may stay low for several 
years, if the Corps' preferred alternatives are adopted. This does not 
bode well for the efforts of the Tribe and the State to encourage the 
several million tourists anticipated to come through North Dakota as we 
observe the Bicentennial of the Lewis and Clark Expedition over the 
next few years. Already there are many putrid smelling mud flats along 
Lake Oahe's shores, some near or on the Standing Rock Sioux 
Reservation, and we can expect similar problems along Lake Sakakawea in 
the near future.
    We would ask this Subcommittee to seriously consider legislation 
that would delay the implementation of a new Master Manual by the ACOE 
until the concerns of the MHA Nation are fully considered by ACOE.
    3. The alternatives presented by the Corps result in a wide 
variation in lake levels that affect many activities and features of 
Lake Sakakawea and the other upper basin reservoirs.
    It has already been noted how the variation in lake levels affects 
recreational uses of the lake. Aside from the Winters' doctrine issues, 
it makes no economic sense to punish the Tribal Nations along the 
river, not to mention the states of South Dakota, North Dakota and 
Montana, just to benefit downstream barge traffic. The value of the 
recreational industry to the Tribes and affected states is well over $1 
billion.
    4. The alternatives do not seriously consider the enormous negative 
impacts of the preferred alternatives on the cultural and sacred sites 
identified as belonging to the MHA Nation and other Nations located 
along the Missouri River.
    One of the most serious issues concerning Missouri River management 
is the fate of the cultural, historical and sacred sites associated 
with the Tribal Nations along the Missouri River. The vast majority of 
these sites are associated with the three Nations of the Three 
Affiliated Tribes, the Mandan, Hidatsa and the Arikara. One reason for 
this is that the original homelands of our Nations occupied a large 
portion of the lands adjacent to the entire length of the Missouri 
River. As the Three Tribes were affected by wave after wave of 
epidemics of small pox beginning as early as the 17th century,\1\ 
villages were abandoned and the dead left behind. These abandoned 
villages, had associated with them many sacred sites, and both the 
village sites and the sacred sites are still honored by our people. 
Many of these sites are on lands owned and managed by the ACOE.
---------------------------------------------------------------------------
    \1\ Some of the smallpox epidemics were caused intentionally by the 
U.S. Army and others. Those who lived in earth lodge villages located 
on the bluffs above the Missouri were especially hard hit, as the 
smallpox epidemics would kill as many as 95% of those living in 
villages. Often, several thousand people lived in a single village.
---------------------------------------------------------------------------
    Yet, precious little has been done to even identify, let alone 
preserve, these sites, despite the existence of a number of Federal 
laws which are meant to preserve such areas. These laws include the 
Native American Graves Protection and Repatriation Act (NAGPRA), the 
National Environmental Policy Act (NEPA), National Historic 
Preservation Act (NHPA). Archaeological Resources Protection Act 
(ARPA), and Executive Orders on Environmental Justice and Protection of 
Sacred Sites. Recently, there was another oversight hearing on whether 
these laws and Executive Orders are adequately protecting Tribal sites 
before the Senate Committee on Indian Affairs, and I will not repeat 
those issues now. But in summary, these laws need to be strengthened to 
adequately protect Tribal interests in our cultural heritage.
    Because of this lack of protection, the National Historic 
Preservation Trust, which seeks to preserve historic places, has 
declared, for 2002, the Missouri River one of the eleven most 
endangered historic properties in the entire United States. This 
designation provides serious recognition to the problems of stabilizing 
the shoreline and protecting the sites that remain.
    Nor has the Master Manual revision process been very helpful 
either. The ACOE has told the Tribes that cultural site preservation is 
an ongoing responsibility that is not really part of the Master Manual 
revision process. Therefore, scant attention was paid to the effect of 
the various alternatives suggested for river management on preservation 
of cultural sites. The information provided about site loss did not 
provide any meaningful data for the Tribes to use to select among the 
preferred alternatives the alternative that would be least harmful to 
sacred and cultural site protection.
    However, we know that many cultural sites are affected yearly by 
the way the river is regulated by the ACOE. As reservoirs go up and 
down, cultural sites are eroded away or exposed when water levels are 
low. The ACOE has reported that between 40-80 sites are being destroyed 
every year through erosion and vandalism.\2\ The ACOE has recently 
estimated that at a minimum, $77 million is needed to stabilize the 
most important known sites. This estimate is very low, we believe, and 
does not necessarily prioritize sites associated with existing Indian 
Tribes. Yet, the ACOE has recently announced that it is dedicating only 
$3 million towards site stabilization, anti portions of that will not 
go to Tribal sites but to State Historic Preservation Offices (SHPO). 
We have asked the ACOE to state that it will prioritize the use of the 
$3 million for identification and stabilization of cultural sites but 
have not yet received anything in writing.
---------------------------------------------------------------------------
    \2\ The ACOE has amended its report to indicate that it believes 
40-80 sites are destroyed every 10 years, but has not yet provided any 
documentation for that number.
---------------------------------------------------------------------------
    Still another problem is continued vandalizing of our sites. The 
sites are located on lands that are largely unpoliced. Yet, these lands 
are also open to the public; anyone with a boat can get to them, and in 
many cases they are accessible by land as well. This means that anyone 
who wants to look for artifacts can easily go onto Corps' land and dig 
away largely without detection. We need a much more vigorous 
enforcement mechanism to prevent unauthorized scavenging, or worse yet, 
unauthorized archaeological digs from taking place that would disturb 
and damage our sites. This is an example of where either self-
determination agreements could be utilized, and where Memoranda of 
Understanding between the ACOE and Tribal police should be developed 
and mandated by legislation passed by Congress so that all appropriate 
laws concerning vandalism of our sites can be vigorously enforced.
    Further, we should not have to go to court to force the Corps to do 
its job. A recent example of this occurred within the reservation of 
the Yankton Sioux Tribe. The Tribe was forced to take the Corps to 
court to require the Corps to stabilize a burial site that had been 
exposed and was subject to vandalism. This should not have to happen. 
Imagine if a burial site sacred to the United States were vandalized; 
action would be taken immediately to prevent further vandalism. We 
expect similar treatment of our burial sites.
        suggested legislative options and other recommendations
1. Recognize Tribal Concerns
    Previously in this testimony I have suggested legislation that 
would ensure that the concerns of the Tribes along the Missouri about 
river management are taken into account as the ACOE prepares its Master 
Manual and goes about the business of managing the river. I believe 
that it is fundamentally necessary for the Corps to have a direct 
responsibility to the Tribes that possess paramount water rights 
(Winters' Doctrine rights) along the Missouri River. The President's 
Executive Order 13175 which requires consultation with the Indian 
Tribes by Federal Executive Agencies does not provide nearly enough 
protection to Tribes in regard to Sacred Sites, nor does Executive 
Order 13014 which seeks to protect sacred sites on Federal lands.
    At a minimum, mechanisms for Tribal consultation need to be 
improved. Tribal consultation with affected Tribes must be frequent, 
not just when the Master Manual is being revised, as has been the case 
over the past two years. We welcome the Corps' efforts to create a 
manual for consultation with Tribes, but a manual does not replace face 
to face efforts to consult with all of the affected Tribal Nations. As 
suggested earlier, we need legislation that will allow Tribes an 
opportunity to manage, through self-determination contracts, various 
aspects of river management, and legislation that will require the 
establishment of a joint ACOE-Tribal task force to ensure that Tribal 
needs will be met.
2. Improve the Corps' Budget for Cultural Site Preservation
    The Corps needs a better budget for cultural protection, not just 
the $3 million mentioned earlier. The Corps has estimated needs at $77 
million, which is most likely a conservative figure, and Tribes believe 
the amount of the annual appropriation must be higher. Whatever the 
amount, appropriations must be to identify all still existing cultural 
sites and to manage and preserve them appropriately, in full 
consultation with the Tribes with whom such sites are associated. With 
the loss of sites continuing each year that are not being protected, 
funds for this purpose must be increased.
    We recognize that an authorization for some efforts at historical 
and cultural site protection is contained within the Water Resources 
Development Act of 2000. But an authorization is meaningless without an 
appropriation of actual dollars.
    Right now the money for cultural site protection comes out of the 
operation and maintenance budget for the ACOE. This means that cultural 
and historical site protection competes with all of the other 
maintenance and operation needs of the Corps. Therefore, when dollars 
are appropriated for cultural and historical site protection, they must 
be specifically earmarked for that purpose, not simply put into the 
operations and maintenance budget in competition with all other needs. 
The appropriation must be recurring and permanent, as the threat of 
erosion continues as lake levels go up and down. and the river, where 
it runs freely, changes course.
    We also would note that the Corps has little funds to police its 
lands against vandals and those who would exploit our sacred sites. 
This is another reason for increasing the budget for protection of our 
cultural sites.Another example of the importance of this issue is a 
change in policy of the Corps regarding camping on ACOE lands.For 
whatever reason, it is my understanding that the Corps now has reversed 
its longstanding policy of not allowing camping on its lands, except in 
designated campgrounds. This reversal threatens many unmarked and 
marked sites which are not policed, as tourists, unauthorized artifact 
hunters and others come onto our lands, our historic homelands, and may 
find and take things that are not theirs to take. If this policy has 
indeed changed, we should have been consulted because it is often our 
sites that are affected.
    The effort to ensure that our cultural heritage is preserved should 
begin in this Subcommittee. I encourage Committee members to ensure 
that appropriations for this purpose are increased so that we will 
enjoy our cultural and historical heritage for many years to come.
    3. Provide adequate funding for protection of Tribal cultural sites 
by setting aside some of the Western Area Power Administration's (WAPA) 
income for this purpose.
    Presently, the Bonneville Power Administration has an agreement 
with Tribal Nations along the Columbia River that provides certain 
funds that are earned from the sale of electricity on the dams along 
the Columbia River for the purpose of cultural site preservation. This 
Agreement should be duplicated for the Omaha District. The Western Area 
Power Administration (WAPA) earns approximately $866 million per year 
in gross operating revenues. A portion of these funds should be 
allocated each year to cultural protection in an amount necessary to 
meet the needs and there should be a mechanism to ensure that funds are 
spent for those purposes and not for other operation and maintenance 
tasks of the Corps.
    The money taken from WAPA revenues should, like the Equitable 
Compensation Act that has benefited the Standing Rock Sioux Tribe and 
our MHA Nation, not raise WAPA rates for electricity. Preferably, this 
could be done with legislation so that there is no question that the 
funds will be used for cultural and historical site preservation.
    In summary, we believe that Tribes have a lot to say about 
management of the Missouri River for the benefit of all. Our interests 
parallel the interests of many who care about preserving the Missouri 
River as fully as possible. When the dams were built, as Carl Whitman 
noted, we may have been the path of least political resistance. But 
fifty years later, we cannot stand silent about management of our 
``grandfather''. We urge the Corps and this Committee to work towards 
constructing a management river plan that fully takes our views into 
account, and that recognizes our paramount rights to the waters of the 
Missouri River.

    Senator Dorgan. Mr. Hall, thank you very much for your 
testimony.
    We are joined by Senator Carper, who I assume is joining us 
in support of the upstream States' interests in the Missouri 
River, coming from the State of Delaware. Maybe Senator Carper 
does not want to choose sides here, but I in any event very 
much appreciate his work.
    Senator Carper. If I can avoid a fight today, I am going to 
do that.
    Senator Dorgan. Well, we very much appreciate Senator 
Carper's work on the Energy Committee and this subcommittee, 
and appreciate him being here.
    Let me just ask a couple of brief questions. First on 
behalf of Senator Johnson, he apologized for having to leave 
for another hearing, but Mr. Hofer, he wanted us to ask, you 
mentioned 13 of the 31 primary boat ramps at Lake Oahe that are 
out of service. You talked about the potential closure of all 
31 primary boat ramps by next June. What would be the economic 
impact on South Dakota's recreation and tourism economy? Have 
you quantified that?
    Mr. Hofer. Part of it we have, just on the fishing side, 
and that is kind of the driver as far as why most people come 
to Lake Oahe to visit for recreational purposes. Our agency has 
quantified the fisheries side of it as about $20 million a 
year. If you add in recreational boating, it could even be more 
than that.
    Senator Dorgan. When would the State decide it costs more 
to maintain these facilities than is generated by these 
operations? Is there a point at which that would occur?
    Mr. Hofer. Well, we have already reached that point with 
some of them. Of those 13 that the primary ramps have been 
closed, we have come up with low water ramps and extended 
ramps, and done things to keep some of those in service in a 
less than ideal situation. There are others where we have 
reached that point where it is just not any longer economically 
feasible to keep the areas open.
    Senator Dorgan. Mr. Hall, you mentioned the creation of the 
Rhode Island-sized flood in the middle of our State. A half-
million acres were actually flooded. Part of that flood covered 
a town called Elbow Woods, which you are well familiar with. 
That is within the boundaries of your reservation, I believe.
    My father as a young boy rode horses on Elbow Woods, herded 
cattle for a number of years, so he spent a lot of time in 
Elbow Woods. Just prior to its being flooded he took me up to 
Elbow Woods and I saw that little town. That town, of course, 
has been under water for a half century now, and your people 
were moved to higher ground. Because of my father having worked 
in Elbow Woods I fully understand what you talked about with 
respect to the displacement, and that is what makes it ever 
more important as we go through this process with the master 
manual, and thinking through all of the difficult and sometimes 
controversial issues, that there be close consultation with the 
tribal leaders.
    Let me just ask of you, I know your testimony reflected 
part of your answer, but do you feel the conservation has been 
adequate? How could it be improved? You talked about having an 
Indian desk at the Corps, but just describe for me generally 
the consultation process as you see it, and give me your 
analysis of it.
    Mr. Hall. Well, thank you for that question. The tribes 
feel that consultation should not just be with the master 
manual. It is a much bigger issue. It goes before even the 
flood, you know, so consultation should be meaningful, it 
should be actively engaged. That directly affects those tribes, 
and of course in this particular issue there are six dams along 
the river, and all of those tribes are directly affected, and 
they all have a legal trust asset in that river, and to have 
little to no consultation--there has been some consultation, 
but it is just on the preferred alternative. It is not really 
on the Winters doctrine. I have not found it, Mr. Chairman, in 
the master manual in the reading that I have taken. I have not 
seen the Winters doctrine referenced in there, and we all know 
that it is a trust asset, the river.
    The Winters doctrine in the thirties set aside reserved 
water rights for Indian tribes, and so now when that water 
level is dropped an inordinate amount of feet like that without 
meaningful consultation, that is a legal matter, and tribes are 
really looking at their legal options that they have right now. 
They are watching this whole process, and we were greatly 
disappointed that no decision was made.
    But on the term of consultation, I think there needs to be 
legislation that strengthens and mandates consultation, because 
it is good to hear, well, we are one of our three criteria is 
that when we are making decisions that we look at our trust 
responsibility to Indian tribes, but we would like to see it 
beyond the master manual, and we want the Corps to recognize in 
their proceedings the Winters doctrine.
    Senator Dorgan. That is a good point, and let me say that 
my colleagues and I on this committee recognize that there are 
a couple of important issues with respect to tribes. One is 
sovereignty, and that renders tribal governments in a slightly 
different way to expect closer consultation. The other is a 
trust responsibility, so we recognize there is a special 
responsibility here because of sovereignty and trust 
responsibilities.
    Let me ask Mr. Frink, if I might, some say, well, the whole 
problem here is that there is not enough water in the system, 
and so because there is not enough water in the system, that is 
what causes these tensions, but is it not the case that at 
times when there is enough water or not enough water, the issue 
is how that water is managed, and for whose benefit? Is that 
not the issue?
    Mr. Frink. Mr. Chairman, I think it is, and trying to find 
a balance is really the key. In regard to that, the MRBA I 
think really needs--Missouri River Basin Association--really 
needs to be commended for what they have accomplished. The 
eight States used to be split four and four, four upstream and 
four downstream on the major issues, and we actually have 
gotten to a point now where we have got one alternative where 
seven out of the eight support this one alternative.
    Senator Dorgan. Which is the eighth that did not?
    Mr. Frink. Eighth is Missouri, and even Missouri, they 
offered good input, and a lot of their ideas have been 
incorporated, but in the end they feel that they have to vote 
against it, but we got to that point where seven out of the 
eight would support it by asking the States like Nebraska and 
Iowa and Kansas what they could live with, and what they could 
not live with, and clearly one of the keys is, they need water 
supply, adequate water supply for their cities and the 
industries, and so the MRBA plans that we are recommending 
provide adequate water supplies for those.
    Senator Dorgan. And quickly, Mr. Wells, the Missouri River 
Basin approach attempted to develop a consensus, has done so 
with every State save Missouri. Can you tell me why Missouri 
does not feel that the Missouri River Basin approach that has 
been a consensus approach is not adequate for Missouri?
    Mr. Wells. Yes, sir, Senator Dorgan. If you look at the 
actual numbers that were presented by the MRBA, and look at 
where--two things really concern Missouri, and one is we do not 
think that the Mississippi River impacts have properly been 
taken into consideration. You talk about a vote of 7 to 1. 
Well, they did not allow the Mississippi River States to vote, 
and they are significantly impacted, but just to back up to the 
numbers, the MCP, the modified conservation plan that the MRBA 
that seven out of eight of the States supported, call for 
shortening the navigation season by almost a month, when the 
reservoir levels, the total system levels are 59 million acre 
feet.
    That is 2 million acre feet up into the annual pool. We 
have analyzed that to see that in over 100 years of analysis, 
some years we would be shortening the navigation season, 
penalizing navigators in the month of November, which is one of 
our big months, especially on the Mississippi, when our grain 
is being shipped south, and then we looked at the following 
year, and we actually had a flood, so just looking at 100 years 
of records, we just thought that was not a reasonable approach.
    And also just to have like a drop-dead target of 59 million 
acre feet, the target today under the current water plan is 41 
million acre feet. You see the difference between 41 and 59. It 
is hard for us to realize, or to surmise that this is a 
compromise that anybody went half-way or anything like that. 
This is a total shift of water, we think, out of the Lower 
Basin.
    Senator Dorgan. I guess I understand now what you are 
saying. You are concerned about the Mississippi, among other 
things, and I suppose one could extend that to the Mississippi, 
and the Gulf of Mexico, and the earth, but the Missouri River 
Basin is a basin represented by States that share the Missouri 
River, and share a concern about how that river is managed for 
the benefit of the Missouri River Basin States.
    But at any rate, Senator Carper, do you have any questions?
    Senator Carper. No. I learned more in the last 15 minutes 
that I learned in the last 15 years of my life. We thank you 
for being here and enlightening me, and hopefully some others 
on the committee, and our staffs. Thank you.
    Senator Dorgan. I think the statements that have been made 
and the testimony given will help complement a record that has 
existed now for some many years. Today's hearing is an attempt 
to see if we cannot stimulate further action that will reach 
some kind of a conclusion about the management of this 
important river.
    When I started this morning, I pointed out, or some of my 
colleagues did, this is the river that Lewis and Clark trekked 
up in order to complete one of the great expeditions in the 
history of America. It is a great river. It, as Senator Daschle 
indicated, in my judgment and in the judgment of many, has been 
horribly mismanaged and has been injured dramatically in many, 
many ways, and it begs for a new management plan, and better--
well, better stewardship, I should say, by those who are 
required to be involved in it, and I think this hearing will 
contribute to applying pressure at appropriate points to see if 
we cannot reach a conclusion.
    Let me thank this panel for your testimony, and this 
subcommittee is adjourned.
    [Whereupon, at 12 noon, the hearing was adjourned.]
                               APPENDIXES

                              ----------                              


                               Appendix I

                   Responses to Additional Questions

                              ----------                              

                            Department of the Army,
                 Northwestern Division, Corps of Engineers,
                                                         Omaha, NE.
Hon. Byron L. Dorgan,
Chairman, U.S. Senate, Committee on Energy and Natural Resources, 
        Washington, DC.
Re: Missouri River Water Management Division

    Dear Senator Dorgan: Thank you for your letter of July 16, 2002 in 
which you submitted follow-up questions to the July 10 hearing before 
the Subcommittee on Water and Power of the Committee on Energy and 
Natural Resources.
    My responses to your questions are enclosed.
    If you have any additional questions or would like to discuss this 
issue, feel free to contact me. The project manager for the Missouri 
River Master Manual Review and update is Rosemary Hargrave. Your staff 
may contact her anytime at 402-697-2527. Copies of this correspondence 
have been provided to the Committee by fax and e-mail as indicated in 
your letter.
            Sincerely,
                                   David A. Fastabend,
                                           Brigadier General,
                                           U.S. Army Division Engineer.
[Enclosure.]
         Responses of Brigadier General Fastabend to Questions 
                          From Senator Dorgan
    Question 1. Do you plan to comply with the requirements of the 
Biological Opinion? How?
    Answer. The Corps intends to comply with the Endangered Species Act 
(ESA). There is a high level of agreement between the Corps and the 
U.S. Fish and Wildlife Service (Service) regarding the biological 
attributes necessary to ensure the survival of the interior least tern, 
piping plover, and pallid sturgeon, three species provided protection 
under the ESA. In their November 2000 Final Biological Opinion to the 
Corps (BiOp), the Service concluded that our current operation of the 
Missouri River Mainstem Reservoir System jeopardizes the continued 
existence of these three species. The Service also provided a 
Reasonable and Prudent Alternative to jeopardy (RPA) that included the 
following elements:

                Adaptive Management
                Intrasystem Unbalancing
                Prescribed Release Modifications from Gavins Point Dam 
                and Fort Peck Dam
                Habitat Creation, Restoration and Acquisition
                Species Specific Measures

    The Corps is in agreement with all elements of the RPA as described 
by the Service in the BiOp with the exception of release modifications 
from Gavins Point Dam. In May of 2002 the Corps provided the Service 
supplemental biological and engineering analyses of the prescribed 
Gavins Point Dam release modifications. We also presented the Service 
with a Preferred Alternative (PA) that takes a scientific based 
approach to flow changes from Gavins Point Dam, The Corps believes that 
this PA would ultimately result in an ecologically improved hydrograph 
for the Missouri River that accomplishes the attributes that the Corps 
and the Service have agreed are necessary to ensure survival of the 
three listed species.
    It should be noted that more stringent drought conservation 
measures that would conserve more water in the upper three lakes (Ft. 
Peck, Lake Sakakawea, and Lake Oahe) early in a drought were not 
included in the BiOp RPA, but have been incorporated into modeling of 
all alternative flow plans provided to the Service.
    Question 2. Has a recommendation been made to your Headquarters 
regarding a PA? If so, what is it? Does it comply with the BiOp?
    Answer. Yes, a recommendation for a PA was made to the Headquarters 
of the Army Corps of Engineers and to the Assistant Secretary of the 
Army for Civil Works. While the PA proposes an alternative strategy for 
Gavins Point Dam release modifications than that prescribed in the 
BiOp, the Corps believes that a scientific approach to Gavins Point 
Darn release changes included in the PA will ultimately result in the 
attributes necessary to ensure survival of the three listed species. 
The Corps believes the PA complies with the ESA.
    Question 3. When do you expect to announce the PA? What are the 
reasons for delaying this announcement?
    Answer. The Corps and the Service have entered into informal 
consultation under Section 7 of the ESA. During the informal 
consultation, the two agencies are working cooperatively to assess 
available scientific and technical information, and explore a range of 
possibilities regarding operation of the Missouri River Mainstem 
Reservoir System. Both the Corps and the Service agreed to delay 
announcement of a PA. The agencies believe that the informal 
consultation will be much more effective to the extent that it can be 
protected from the public controversy associated with Missouri River 
water management decisions. We believe the public will be much better 
served by a product that reflects the coordinated position of the 
entire Executive Branch. The Corps will use the results of the 
consultative process as we complete the Final Environmental Impact 
Statement (FEIS) for the Master Manual Review and Update. The FEIS will 
include a description of the environmental and economic impacts of the 
PA. A 30-day comment period will follow release of the FEIS to provide 
public and Congressional review of the PA before a Record of Decision 
is signed.
    Question 4. Do the Corps and the Service disagree over what a PA 
should be? Describe the differences in opinion.
    Answer. The Corps will not speak on behalf of the Service regarding 
their conclusions about the PA. However, it may be premature for the 
Service to have formed an opinion on a PA prior to completion of the 
consultation process.
                                 ______
                                 
                        Department of the Interior,
                                   Office of the Secretary,
                                Washington, DC, September 30, 2002.
Hon. Byron L. Dorgan,
Chairman, Subcommittee on Water and Power, Committee on Energy and 
        Natural Resources, U.S. Senate, Washington, DC.
    Dear Mr. Chairman: Thank you for your July 16, 2002, letter and 
additional questions from the Subcommittee on Water and Power 
concerning your July 10, 2002 hearing on the operation of the Missouri 
River by the Army Corps of Engineers. Enclosed with this letter are our 
responses to your questions.
    If you have further questions, please contact me or have your staff 
contact Gary Frazer, Assistant Director for Endangered Species at (202) 
208-4646.
            Sincerely,
                                   David P. Smith,
                                   Deputy Assistant Secretary for
                                           Fish and Wildlife and Parks.
[Enclosure.]
      Reponses of David P. Smith to Questions From Senator Dorgan
    Question. What will happen if the Corps does not modify its 
Missouri River operations by 2003 as required by the Biological 
Opinion?
    Answer. The reasonable and prudent alternatives set forth in the 
U.S. Fish and Wildlife Service's November 2000 Biological Opinion was 
based upon a spring rise being provided once every three years, on 
average, beginning in 2003. Therefore, the Corps could provide for a 
spring rise in 2004 or 2005, if conditions allow.
    To answer your question much more generally, absent any other 
mitigating factors, if an action agency does not implement the 
reasonable and prudent alternatives set forth in a U.S. Fish and 
Wildlife Service Biological Opinion, the action agency may not be able 
to demonstrate compliance with section 7(a)(2) of the Endangered 
Species Act. An agency could violate section 9 of the ESA if 
noncompliance results in take of a listed species. Either situation 
could subject the agency to potential third party litigation.
    Question. Are you aware of any alternatives that do not include 
flow modification from Gavin's Point Dam that would meet the 
requirements of the ESA?
    Answer. The Service continues to work with the Corps to identify 
and evaluate potential alternatives. The Corps and the Service have 
entered into informal consultation and are working at multiple levels 
to address issues related to ongoing operations of the Missouri River 
system and to address how best to proceed from here. Both agencies are 
considering all of the conservation tools available to us and we are 
committed to exploring a variety of approaches towards meeting our 
obligations to conserve the listed species. These discussions are 
continuing.
                                 ______
                                 
      Responses of Douglas Hofer to Questions From Senator Johnson
    Question 1. Mr. Hofer, the Corps of Engineers is considering an 
alternative management plan that gradually reduces Gavins Point Dam 
releases from 25,000 cfs to 21,000 cfs during the months of June, July, 
and August. Can you speak to the benefits of reducing releases during 
the summer months for the mainstem reservoir system?
    Answer. A 4,000 cfs reduction in summer releases from the Missouri 
River reservoir system in South Dakota would have a positive effect on 
recreation, especially on Lake Oahe (and the two mainstem reservoirs 
north of South Dakota in North Dakota and Montana). The primary benefit 
relates to boating access. The lower releases would sustain the 
reservoirs at higher elevations during the summer months when 
recreational boating use is the heaviest. During drought years 
especially, such as we are experiencing now, boat ramps go out of 
service when water levels fall too far. At some sites, extending the 
bottom of the ramp (at a significant cost) is feasible. At other sites, 
the topography of the lake bottom doesn't allow extension and the ramp 
is lost to service until the water level rises.
    A second problem associated with maintaining functional boat ramps 
during low water, is siltation. With expansive areas of erodable 
shoreline exposed, wind driven waves cause silt to buildup on boat 
ramps rendering them unusable. Silt buildup of 18 inches on a ramp can 
occur overnight when water is low and the wind is right. Mechanical 
removal, the only solution to the problem, is both costly and time 
consuming and causes temporary ramp closures. Lowering summer releases 
and therefore maintaining the reservoir water levels at a higher 
elevation would increase boating access.
    The same benefits, to a lesser extent, would be realized on Lake 
Sharpe, Lake Francis Case and Lewis and Clark Lake. These smaller 
reservoirs are currently managed by the Corps at more constant water 
levels throughout the summer. However, because they are shallower 
reservoirs, boat ramps have a shorter usable range. Minor fluctuations 
can cause access problems. Maintaining more water in the reservoir 
system in June, July and August, would benefit recreation use in the 
entire system.
    Question 2. This past spring, the Corps of Engineers reduced water 
levels at Lake Francis Case and Lake Sharpe to maintain a navigable 
channel in the lower Missouri River Basin. At one point this spring, 
Lake Sharpe dropped several feet in a few days. These reductions killed 
millions of rainbow smelt eggs in these two reservoirs. Can you explain 
how these reductions impact fish who feed off of these prey fish 
populations? How does a reduction in the availability of prey fish 
ultimately impact recreation?
    Answer. A gradual reduction in Gavins Point Dam releases from 
25,000 cfs to 21,000 cfs during the months of June, July and August 
would have many benefits to mainstem reservoirs as listed below:

   Most importantly it would conserve water in the reservoirs 
        preventing increased reduction in fisheries habitat. For 
        example, declining water levels during 2002 in Lake Oahe have 
        reduced the volume of coldwater habitat required by prey fish 
        such as rainbow smelt by 35%. This means that Lake Oahe can now 
        support 1/3 as many prey fish as it could during a normal year. 
        Additionally, more water conserved in all the mainstem 
        reservoirs would enhance sport fisheries through increased 
        habitat availability.
   A reduction in flows during summer months would enhance 
        survival of young fish in all reservoirs by reducing the 
        potential of them being flushed from the reservoir. Rainbow 
        smelt are most susceptible to being flushed from a reservoir 
        from mid-June to mid-September, therefore reduced flows during 
        these months would lessen the impacts of entrainment. In excess 
        of 430 million rainbow smelt were lost from Lake Oahe from June 
        through September of 1997, a period of higher water releases, 
        which wreaked havoc with Lake Oahe's sport fisheries and the 
        industry they support.
   More stable lake elevations would lessen the impacts of 
        shoreline erosion.

    The reduction in water levels in Lake Francis Case and Lake Sharpe 
to maintain a navigable channel in the lower Missouri River Basin had 
the following potential negative impacts:

   Walleye populations could have been impacted through the 
        loss of a large portion of this year's production of young 
        fish. The annual production of walleyes in these reservoirs is 
        important because these reservoirs are intensively fished and 
        therefore require consistent replacement of the most popular 
        sport fish.
   Self-sustaining populations of rainbow smelt only exist in 
        Lake Sakakawea and Lake Oahe because of their need for 
        coldwater habitat, which these two reservoirs provide during 
        warm summer months. A reduction of rainbow smelt eggs or any 
        fishery through mismanagement of water levels can have serious 
        impacts on a fishery and the economy it supports. For example, 
        in Lake Oahe rainbow smelt, a prey fish, had been relatively 
        abundant prior to 1998. Abundant rainbow smelt supported a 
        walleye fishery in Lake Oahe, which from 1991-1998 provided an 
        average annual economic impact of almost $20 million economic 
        impact. The smelt population crashed due in part to the 
        flushing of in excess of 430 million smelt from Oahe Dam in 
        1997. Subsequently, the walleye fishery, which rainbow smelt 
        had supported also suffered and resulted in a loss of almost 
        $12 million in economic impact to north-central South Dakota in 
        2000.

    Portions of these statements can be referenced in affidavits of 
Wayne Nelson-Stastny in the Case of STATE OF SOUTH DAKOTA and WILLIAM 
J. JANKLOW, GOVERNOR OF SOUTH DAKOTA, PLAINTIFFS, v. LT. COLONEL KURT 
F. UBBELOHDE, DISTRICT ENGINEER, OMAHA DISTRICT, UNITED STATES ARMY 
CORPS OF ENGINEERS and GENERAL DAVID A. FASTABEND, NORTHWEST DIVISION 
COMMENDER, PORTLAND, DEFENDANTS United States District Court, District 
of South Dakota Central Division.
                                 ______
                                 
    [Note: Responses to the following questions submitted to 
the Department of Agriculture and the Bureau of Reclamation 
were not received at the time the hearing went to press.]

                                       U.S. Senate,
                 Committee on Energy and Natural Resources,
                                     Washington, DC, July 16, 2002.
The Honorable Bill Hawks,
Under Secretary of Agriculture, Marketing and Regulatory Programs, U.S. 
        Department of Agriculture, Washington, DC.
    Dear Under Secretary Hawks: I would like to thank you for appearing 
before the Subcommittee on Water and Power of the Committee on Energy 
and Natural Resources on July 10. As a follow-up to our hearing, I am 
attaching additional questions to be submitted for the record. We 
request your response to these questions.
    Please review the questions and return your answers to us by July 
24 so that they may be added to the record.
    Due to the current delay in receiving mail, please provide us with 
your answers by faxing them to the Committee on Energy and Natural 
Resources, Democratic Staff at (202) 224-9026 or (202) 224-4340. You 
may also provide us with your answers via e-mail to Malini--
[email protected]. Should you have any questions, please contact 
Malini Sekhar (202) 224-7934 of the Committee staff.
            Sincerely,
                                           Byron L. Dorgan,
                         Chairman, Subcommittee on Water and Power.
Questions for the Department of Agriculture (Undersecretary Bill Hawks)
    1. What role has the Department of Agriculture been taking in the 
review and revision of the Master Manual?
    2. According to a report (``Does Barging on the Missouri River 
Provide Significant Benefits?'' 1999) by two agricultural 
transportation economists, Michael W. Babcock of Kansas State 
University and Dale G. Anderson of the University of Nebraska Lincoln, 
the amount of commerce shipped on the Missouri River is ``both low and 
declining.''

   Does that continue to be the trend?
   What percent of grain tonnage produced in the Missouri River 
        Basin is hauled by barge on the Missouri?
   What percent is transported by rail?
   By truck?

    3. According to the Corps of Engineers, the actual direct economic 
benefit that comes from transporting goods on the Missouri River 
amounts to less than $6.97 million per year.

   Do you have any figures with respect to the cost of 
        maintaining these navigation channels on the river?
   What are the costs to recreation and fish and wildlife that 
        result from maintaining navigation?

    4. In addition, pro-navigation interests argue that there are 
significant competitive rate benefits with respect to rail and trucking 
rates that result from having competition from barge shipping. However, 
two studies (``Does Barging on the Missouri River Provide Significant 
Benefits?'' Michael W. Babcock and Dale G. Anderson, 1999; and ``The 
Competitive Benefit of the Missouri River? A Review of `Rail Rates and 
the Availability of Barge Transportation on the Missouri River,' '' 
Philip C. Baumel, 1998) undertaken by leading agricultural 
transportation economists in the region (at the University of Nebraska 
Lincoln, Kansas State University, and Iowa State University) have 
rejected the existence of any significant competitive rate benefits 
resulting from navigation on the Missouri.
    These studies indicate that the methodology underlying the Corps' 
conclusions of competitive rate benefits is flawed.

   What is your response?

    The studies conclude that other competitive factors such as 
multiple rail shippers and Mississippi navigation rather than the 
existence of barge shipping on the Missouri play a much larger role in 
affecting rates.

   Do you agree or disagree and why?

    5. Some have raised concerns about the effects of proposed Gavins 
Point Darn releases on flood control.

   However, I understand that the Biological Opinion provides 
        that these proposed releases would be made only once every 
        three years and that the releases would not be made in 
        potential flood situations when runoff is predicted to be high.
   Isn't this correct?
                                 ______
                                 
                                       U.S. Senate,
                 Committee on Energy and Natural Resources,
                                     Washington, DC, July 16, 2002.
Margaret Sibley,
Director of Policy, Bureau of Reclamation, Washington, DC.
    Dear Ms. Sibley: I would like to thank you for appearing before the 
Subcommittee on Water and Power of the Committee on Energy and Natural 
Resources on July 10. As a follow-up to our hearing, I am attaching 
additional questions to be submitted for the record. We request your 
response to these questions.
    Please review the questions and return your answers to us by July 
24 so that they may be added to the record.
    Due to the current delay in receiving mail, please provide us with 
your answers by faxing them to the Committee on Energy and Natural 
Resources, Democratic Staff at (202) 224-9026 or (202) 224-4340. You 
may also provide us with your answers via e-mail to Malini--
[email protected]. Should you have any questions, please contact 
Malini Sekhar (202) 224-7934 of the Committee staff.
            Sincerely,
                                           Byron L. Dorgan,
                         Chairman, Subcommittee on Water and Power.
       Questions for the Bureau of Reclamation (Margaret Sibley)
    1. I understand that the Bureau of Reclamation does not operate any 
of the mainstem dams on the Missouri. However, you do operate Canyon 
Ferry Dam on the Upper Missouri, and have responsibility for facilities 
on the tributaries.

   What efforts do you make to coordinate your operations with 
        the Corps?
   Are there measures that the Bureau can take to address 
        issues of riverine habitat and flows in the Missouri River?

    2. Do operations on the tributaries affect the upper lake levels in 
the Missouri River system?
                              Appendix II

              Additional Material Submitted for the Record

                              ----------                              

                                                     June 27, 2001.
Hon. JoAnn Emerson,
U.S. House of Representatives, Cannon Building, Washington, DC.
    Dear Representative Emerson: We are writing concerning an important 
provision in the fiscal year 2002 Energy and Water Appropriations bill.
    Section 106 of H.R. 2311 stipulates that changes in the management 
of the Missouri River cannot be made to allow for alteration in river 
flows during springtime. Removing this provision would not only affect 
farmers in Missouri, Nebraska, Iowa and Kansas by potentially flooding 
their land, but also affect barge traffic movements on the Missouri and 
Mississippi Rivers. Without proper management of river flows over the 
course of the year, transportation movements could be hampered by 
insufficient water levels on the Missouri River and the Mississippi 
River between Memphis, Tennessee and Baton Rouge, Louisiana.
    If an amendment is offered to strike Section 106, we urge you to 
vote against it. Removing this provision would have significant impacts 
on productive agricultural lands as well as the movement of 
agricultural commodities and input supplies along the Missouri and 
Mississippi Rivers.
            Sincerely,
                    Agricultural Retailers Association; American Farm 
                            Bureau Federation; American Soybean 
                            Association; Midwest Area River Coalition 
                            (MARC 2000); National Association of Wheat 
                            Growers; National Corn Growers Association; 
                            National Council of Farmer Cooperatives; 
                            and National Grain and Feed Association.
                                 ______
                                 
                                 Friends of Lake Sakakawea,
                                                      July 2, 2002.
Senator Byron Dorgan,
Subcommittee on Water and Power, Washington, DC.
    Senator Dorgan and Members of the Subcommittee: Thank you for this 
opportunity to relay our concerns about the lake level fluctuations in 
Lake Sakakawea and the need for release of a Missouri River Master 
Water Control Manual.
    In plain and simple terms--we're dying without better management of 
Lake Sakakawea. Although we often talk about the smelt population and 
the environmental impact of low water levels, all of that translates 
into tourism. Without tourism, our businesses will die. We no longer 
can count on the farm economy to sustain our existence. Tourism is a 
growing and necessary industry in our state; we need to have a Master 
Water Control Manual that recognizes the significant economic impact of 
recreation.
    Members of Friends of Lake Sakakawea own and manage businesses in 
communities near Lake Sakakawea. Here are some of the quotes some of 
them gave the last time the lake hovered this low:

        We opened doors in 1988, we were here for six years with no 
        water. We changed from a marina to a restaurant. It was pretty 
        tough. You might as well close up shop if you're only a marina 
        and people can't get to your place.

                                     --Owner, Lund's Landing Resort

        We had virtually five years of no income. If it would have been 
        private enterprise, we would have been bankrupt. Next year 
        could be the first year since taking it over in 1987 that we 
        will break even. It took a while to get clientele back, we 
        needed to make repairs, we lost at least half of our tenants. 
        It was the first full year we had. When we bought into the 
        business, I was too cocky. I thought it was too big of a lake 
        to ever go dry. I was dead wrong. Now I'm gun shy. I'm afraid 
        to plan on a good next year because I figure there's a 50% 
        chance we'll be on dry ground.

                    Investor in Dock Owners Inc.--own all the docks

        I was a casualty of the Corps. The problem is we're not talking 
        about recreation, it's tourism. It's an industry, it's not just 
        people out having fun. Businesses like ours closed up and down 
        the lake. Restaurants, clothing stores, grocery stores, one 
        after another, after another. We were a family that lost 
        everything we had financially. Look at the lake now--it's gross 
        mismanagement. The Corps pulled the plug last year and forgot 
        to put it back in.

                  Owner that closed supper club in Garrison in 1990

        In the 1980s we had 20 big boats in our bay. Now we have three. 
        The three salmon fishing charters are gone. Most of the boats 
        have been sold. During the late 80s our marina was virtually 
        out of business. We moved ramp five times and delivered gas. 
        1998, on the other hand, was phenomenal. The revenue was what 
        it should have been eight years ago. We're just recovering from 
        the bad years.
                                          Owner Indian Hills Resort

        My parents owned the business until 1990 when they said to hell 
        with it and went bankrupt. I bought it at the sheriffs sale. 
        Business has increased 500 percent since then. But it could 
        happen again. Absolutely. I was here the last time and it was 
        ugly. The Tourism Business has such a trickle down affect, it 
        touches everyone. It's a total crime to have the lake at the 
        level it's at now. It's pretty scary where it could be by next 
        spring.

                           Owner, Watford City sporting goods store

    It's time for a Manual that puts navigation in the back seat and 
allow us to put recreation where it belongs. In one lake community 
alone, sales fluctuate $4 million a year based on the level of the 
lake.
    Please give this your immediate attention. Without some change . . 
. we're dying.
            Sincerely,
                                       Jill Denning Gackle,
                                                            Member.
                                 ______
                                 
                                                      July 8, 2002.
Senator Byron Dorgan,
Committee on Energy and Natural Resources, U.S. Senate, Washington, DC.
Re: Hearing on Missouri River Master Water Control Manual

    Senator Dorgan: I'm writing on behalf of the North Dakota 
Association of Rural Electric Cooperatives to provide input for the 
hearing you'll be holding on Wednesday, July 10, as part of your work 
as Chairman of the Subcommittee on Water and Power.
    First, we want to commend you for holding this hearing and calling 
attention to a critical issue facing states in the Upper Basin of the 
Missouri River. We have participated in hearings on this subject here 
in North Dakota and our view remains much the same: the water 
management issues and needs of the 21st century are markedly different 
from the needs of the 20th century. It is time for the Corps to accept 
their responsibility to issue the new Master Water Control Manual. In 
so doing, we would support a water management plan that better 
recognizes the needs of the upper basin states, especially in times of 
drought and low water supplies as we are experiencing this year.
    Second, we would ask that any revision to the Master Water Control 
Manual continue to treat hydropower production as a critically 
important function of the Pick Sloan plan. The cost-based hydropower 
marketed to our members (RECs) is an important part of the foundation 
that allows cooperatives to offer affordable, dependable power supply 
to their members. In our view, affordable, dependable power continues 
to be a contemporary need for our member consumers.
    Again, Sen. Dorgan, thanks for your leadership in calling attention 
to this critical issue. The Corps of Engineers has had more than ample 
time to study a revision to the Master Water Control Manual.
            Sincerely,
                                               Dennis Hill,
                      Executive Vice President and General Manager.
                                 ______
                                 
                                 Standing Rock Sioux Tribe,
                                      Fort Yates, ND, July 9, 2002.
Hon. Byron L. Dorgan,
Chairman, Subcommittee on Water and Power, Committee on Energy and 
        Natural Resources, U.S. Senate, Washington, DC.
    On behalf of the Standing Rock Sioux Tribe submitted herewith is 
the written testimony for the Subcommittee's hearing on Wednesday, July 
10, 2002, regarding water management on the Missouri River, including 
the effects to revise the Missouri River Master Manual Water Control 
Manual.*
---------------------------------------------------------------------------
    * The written testimony has been retained in subcommittee files.
---------------------------------------------------------------------------
    As indicated in your letter of June 28, 2002, due to time 
constraints you are unable to accommodate an oral presentation from the 
Standing Rock Sioux Tribe at the July 10, 2002 hearing.
    However the Standing Rock Sioux Tribe would want to be afforded the 
opportunity to discuss this very critical issue with you, and we hope 
that this can take place as soon as possible.
    Should you have any further questions regarding this matter please 
contact me or should your Committee staff require any additional 
assistance please contact Gary J. Marshall, Director, Department of 
Land Management at (701) 854-7579 directly.
            Respectfully submitted,
                                         Charles W. Murphy,
                                                          Chairman.
                                 ______
                                 
                           Nebraska Farm Bureau Federation,
                                         Lincoln, NE, July 9, 2002.
Hon. Chuck Hagel,
Rusell Senate Building, Washington, DC.
    Dear Senator Hagel: As President of Nebraska's largest farm 
organization, I am writing to ask that you convey the following 
comments to the Water Power subcommittee of the Energy and Natural 
Resources Committee during its July 10, 2002 hearing on Army Corps of 
Engineers management of the Missouri River.
    For the record, Nebraska Farm Bureau Federation is strongly opposed 
to the flow changes currently under consideration with the Army Corps 
of Engineers--particularly the proposals that contain a ``spring rise'' 
and the low summer time flows. We strongly support the current water 
control plain and efforts by the Corps to balance all the competing 
interests on the river. The impact these proposal would have on farmers 
along the river will be devastating due to additional flooding and 
inland drainage problems. In addition, the low summer flow will prevent 
season-long commercial navigation on the Missouri which is important 
for movement of grain to export and for prices farmers receive at their 
local elevators.
    Several times during the 1990s, Nebraska producers were unable to 
plant significant portions of their bottomland acres because of 
flooding of the Missouri River tributaries and poor drainage problems. 
Larger than normal spring releases by the Corps to address endangered 
species habitat concern created even more of a problem with flood water 
drainage at that time. Also, drainage and tile systems along levees and 
other streams were backed up or inoperable creating a situation where 
even more land was left idle. The spring rise flow regime that the U.S. 
Fish and Wildlife Service is proposing would make those problems for 
farmers even worse. It is estimated that up to 1.4 million acres of 
farmland in Nebraska, Iowa, Kansas and Missouri could be damaged due to 
flooding and poor drainage as a result of the proposed spring rise.
    Several special interest groups supporting the high spring-low 
summer time flows suggested by the U.S. Fish and Wildlife Service 
opinion seem to view navigation has insignificant on the Missouri 
River. At a time when consolidation and concentration issues are 
causing a great deal of concern in agriculture, the last thing 
producers need is for the federal government to change the management 
of the river in a way that would negatively impact navigation. While 
shipments of grain and farm inputs on the Missouri River may not be 
huge compared to other rivers, it does provide another option to rail 
and truck transportation, which is essential for keeping 
transportation, costs competitive and low. Also, it is important to 
note that the Missouri River provides, at tunes, up to one-half of the 
Mississippi River flow where the two rivers join. The Mississippi River 
carries more than 60 percent of our nation's export grain products and 
the Missouri River summer time flow is critical for the overall 
efficiency of our nation's navigation system.
    Farmers tend to develop solutions in a plain and simple way and we 
believe the Fish and Wildlife Service is making the management of the 
Missouri River too complicated. Congress has a law in place that states 
flood control and other purposes should be balanced in the management 
of the Missouri River system. Listings under the Endangered Species Act 
have placed more focus on one of the eight purposes of mainstream 
reservoir system.
    It would seem logical to us that some effort should be made to 
establish a baseline to accurately assess where we are now in terms of 
the condition and situation of the protected species of concern. For 
example, the International Piping Plover Census found that plover 
numbers have increased 470 percent along the Missouri River in the past 
five years and now just over a thousand plovers are found there. Susan 
Haig, director of the census and a U.S. Geological Survey scientist, 
said recent favorable habitat conditions along the river may have 
spurred the increase. In other words the birds found and used the 
riverine habitat.
    However, despite these facts and other reasonable approaches to 
protect endangered species, just last Friday the Corps was barred from 
relocating the nests and eggs of endangered species to a safe location 
as a part of its plan to increase of water flows necessary to support 
river navigation. At what point are we at in society today when the 
federal government sacrifices the needs of humans to the rigid 
interpretation of the Endangered Species Act by bureaucrats trying to 
protect two endangered birds. A realistic approach was being 
implemented by the Corps to protect the species while supporting 
navigation and it economical benefits. However, the Endangered Species 
Act seems to be the ``trump card'' that defies all logic and common 
sense in the federal governments effort to balance the interests of 
society.
    If it is determined that more habitat is needed along the Missouri 
River for certain species, modifications should be taken first to 
improve existing habitat by pursuing more enhancements of oxbow lakes, 
wetlands and other natural habitats along the river and in the 
reservoirs. We strongly believe that there would be landowner support 
for fish and wildlife habitat enhancement along the river as long as 
those approaches are voluntary and incentive-based.
    If it is determined that more needs to be done to improve the 
habitat by altering the river flows, gradual changes could be examined 
within the framework of the current water control plan. At the same 
time, social/economic analysis evaluations should be conducted to 
coincide with any flow changes made solely due to a species habitat 
issue.
    In conclusion, Nebraska Farm Bureau Federation believes that future 
management decisions for the river should not ignore the primary 
purpose of the mainstream dam system of flood control and other 
important benefits it provides such as hydropower, and navigation. 
Moreover, those decisions should not threaten the people and 
communities along the river and they should not forget and place undue 
harm on individual farmers along the river who are a part of the 
foundation of our nation's food and fiber system. Therefore, we 
strongly support the current water control plan on the Missouri River, 
which attempts to balance all interests as opposed to placing 
additional weight on endangered species.
            Sincerely,
                                           Bryce P. Neidig,
                                                         President.
                                 ______
                                 
                                           American Rivers,
                                                     July 18, 2002.
Hon. Byron L. Dorgan,
Chairman, Subcommittee on Water and Power, Committee on Energy and 
        Natural Resources, U.S. Senate, Washington, DC.
    Dear Chairman Dorgan: Thank you for holding the hearing on July 10 
regarding water resource management on the Missouri River. I appreciate 
the opportunity to submit written testimony for the record.
    During the hearing, I noticed that concerns were raised related to 
hydropower production on the Missouri River and its relationship to 
potential flow changes on the river. The previous day, July 9, American 
Rivers and Environmental Defense released a report by energy economist 
David Marcus on this very subject.* I think this report will be most 
useful to you as you further consider these matters, and I submit it 
now for official entry into the hearing record in addition to my 
previous written testimony.
---------------------------------------------------------------------------
    * The report has been retained in subcommittee files.
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    If you have any questions, do not hesitate to contact me by phone 
at 402-477-7910 or by e-mail at [email protected]. Thank you for your 
consideration.
            Sincerely,
                                                Chad Smith,
                                   Director, Nebraska Field Office.
                                 ______
                                 
                                    Crow Creek Sioux Tribe,
                                  Fort Thompson, SD, July 22, 2002.
Hon. Byron Dorgan,
U.S. Senate, Committee on Energy and Natural Resources, Subcommittee on 
        Water and Power, Dirksen Senate Office Building, Washington, 
        DC.
Attention: Melanie Shaker

Re: Testimony for Record on July 10, 2002 Hearing on the Army Corps of 
        Engineers Missouri River Master Water Control Manual
    Dear Senator Dorgan: I serve as Chairman of the Crow Creek Sioux 
Tribe. I respectfully submit this letter as the Tribe's Testimony for 
the July 10, 2002 Water and Power Subcommittee Hearing on the Army 
Corps of Engineers Missouri River Master Water Control Manual. I 
appreciate the inclusion of my Testimony in the written record for this 
hearing.
    The Crow Creek Reservation is comprised of approximately 240,000 
acres of rolling farm land and pasture along the Missouri River, in 
central South Dakota. The Missouri dominates the Reservation landscape.
    The impact of the Missouri River Basin Pick-Sloan Program on the 
Crow Creek Indian Reservation has been devastating. Two Pick-Sloan 
dams, Fort Randall and Big Bend, inundated the Reservation's 
bottomlands. The Corps of Engineers began construction of the Fort 
Randall dam and reservoir in 1946.
    Twelve years later, the Congress enacted Public Law 85-916 (72 
Stat. 1766, September 2, 1958), authorizing payment for the ``Tribal 
land taken for the project. The Tribe lost 9,154 acres of rich 
bottomland, over one-third of which was forested. Eighty-four families, 
constituting 34 percent of the Tribal membership, were relocated 
against their wishes. The project flooded Fort Thompson, the 
Reservation's largest community, and the BIA relocated the agency 
headquarters to Pierre, South Dakota, thirty miles from the 
Reservation. Likewise, the Indian Health Service hospital was moved 
twenty miles south to Chamberlain. The resources of the bottomlands, 
and the subsistence economy based on those resources, were gone 
forever. The relocated families received the nominal payments 
authorized under P.L. 85-916 four years after the relocation.
    In September, 1959, the Corps began work on the Big Bend project. 
In 1962, the Congress enacted Public Law 87-735 (76 Stat. 704), 
providing for the purchase of 6,179 acres of remaining bottomland. 
Twenty-seven more families were relocated.
    Thus, the federal government took from our Tribe over 15,000 acres 
of land from our Tribe, for the site of these projects. This land was 
valuable Missouri River bottomlands. They had the most fertile soils 
and valuable timber on the Reservation. Over the loss of land and 
natural resources and the relocation of our Tribal communities in the 
late 1950's and early 1960's had a devastating effect on the Crow Creek 
Sioux Tribe.
    On-going COE operations at the Missouri River dams under the Master 
Water Control Manual substantially affect the Crow Creek Indian 
Reservation. Our cultural resources get unearthed and destroyed by wave 
action from fluctuations in the water level of Lake Oahe. COE 
operations impact Missouri River water levels and water quality on the 
Reservation. During periods of drought, water quality deteriorates, due 
to low water levels. The intentional flushing of sediment from below 
Oahe Dam exacerbates the documented water quality problems facing Lake 
Sharpe on our Reservation. In addition, peak power flows at Oahe Dam 
intensifies the erosion of Tribal land and causes property damage to 
valuable Tribal farmland, and the unearthing of artifacts and cultural 
objects.
    These sacred cultural resources are afforded protection under 
numerous federal laws, such the Native American Graves Protection and 
Repatriation Act (NAGPRA) 25 U.S.C. Sec. 3001, National Historic 
Preservation Act (NHPA), 16 U.S.C. Sec. 470a and the Archaeological 
Resources Protection Act (ARPA) 16 U.S.C. Sec. 470aa. The Corps of 
Engineers activities under the Master Water Control Manual are ``agency 
actions'' for the purpose of NAGPRA, and accordingly, this statute 
forbids the Corps from operating the dams in a manner that unearths and 
destroys them. Yankton Sioux Tribe v. Army Corps of Engineers. 83 F. 
Supp. 2d 1047 (D.S.D. 2000).
    Yet the Corps continues to operate the dams in a manner that 
results in the exposure and destruction of cultural resources. There is 
nothing in the Revised Draft Environmental Impact Statement to remedy 
this. Consequently, the RDEIS results in serious violations of federal 
historic preservation law.
    The Corps of Engineers has failed to consult with our Tribe, on the 
detrimental impact of the Corps' Missouri River operations, on our 
Reservation. This is required in Executive Order 13175. Both the 
National Advisory Council on Historic Preservation and the 
Environmental Protection Agency have questioned the lack of 
consultation on the part of the Corps of Engineers with the Tribes, and 
the impacts of COE operations on our historic properties and 
Reservation environment.
    The Corps of Engineers estimates that its regulation of Missouri 
River water flows produces National Economic Development (NED) benefits 
to the U.S. of $1.8 billion. (RDEIS, Executive Summary, p. 14-18). The 
NED benefits outlined by the Corps in the RDEIS were derived through a 
computer model, in which the Corps traced the water flows for each year 
it has operated the system, under the operational scheme for numerous 
proposed management alternatives.
    The Crow Creek Sioux and other Tribes possess substantial water 
rights to the Missouri. However, Indian water rights were not 
considered in this computer model used by the Corps. The impacts of 
alternative on Native American cultural resources are not properly 
provided in the model. There is no mention of the economic losses on 
our Reservation, in the determination of economic development gains off 
of the Reservation.
    Instead of engaging in the analysis required under the National 
Environmental Policy Act (NEPA), the Corps has delegated to the states 
and the special interest groups they represent the task of allocating 
water in drought years. There is unused water in the system that the 
Federal government should not allocate for any other than Tribal uses, 
but the Corps has washed its hands of its Trust responsibility to the 
Tribes, and instead defers to water negotiations amongst the states. We 
object to the higher level of consultation afforded to the Missouri 
Basin states, than it afforded to our Tribe.
    Under the National Environmental Policy Act, the Corps must compile 
and analyze the history, socioeconomic conditions, cultural resources 
and environmental baseline conditions of the affected Indian Tribes, 
including the Crow Creek Sioux Tribe. The Environmental Impact 
Statement should survey the impacts of Big Bend and Fort Randall dams 
on plants and wildlife along the Missouri River. There must be 
compliance with Section 106 of the National Historic Preservation Act 
in the operation of Oahe, Big Bend and Fort Randall Dams.
    Under the Executive Order 12868 on Environmental Justice, the Corps 
must propose plans to mitigate the impact of its operations on the 
Tribes, because of the disproportionate impact of its operations on 
Native American communities. There is no question that mitigation of 
the detrimental impacts of Pick-Sloan is required at Crow Creek. This 
must be outlined in the Environmental Impact Statement.
    The Revised Draft EIS Violates the National Environmental Policy 
Act, National Historic Preservation Act, Executive Order 13175 on 
Consultation with Indian Tribes and Executive Order No. 12898 on 
Environmental Justice, and common sense. The Corps of Engineers has 
proven that it shall violate the rights of our Tribe in its past and 
current operations, and in its planning process for future operations.
    I understand that the main issues surrounding the Master Manual 
Review and Update involve upper basin recreation and downstream 
navigation. We respect these legitimate interests.
    However, the rights of the Tribes are Treaty rights. We also enjoy 
rights under federal laws designed to protect our Reservation land and 
our cultural heritage. These issues are important to the Indian people. 
They have been ignored during the current debate between the lower 
basin and upper basin states of the Missouri River. The Corps of 
Engineers has made it clear that it shall ignore the rights of the 
Indian Tribes, in the Master Manual Review and Update process. I hope 
that the Water and Power Subcommittee considers appropriate legislation 
to ensure that our water rights, Reservation lands and cultural 
resources are protected from the bureaucratic malfeasance of the Corps 
of Engineers.
            Sincerely,
                                           Duane Big Eagle,
                                                   Tribal Chairman.
                                 ______
                                 
                               National Waterways Alliance,
                                 Washington, DC, September 1, 2000.
Hon. Christopher S. Bond,
Russell Senate Office Building, U.S. Senate, Washington, DC.
    Dear Senator Bond: On September 5, 2000, the Senate is scheduled to 
begin consideration of H.R. 4733, the Energy and Water Development 
Appropriations Bill for FY 2001. We are writing to express our strong 
opposition to any efforts to strike Section 103, which prohibits 
implementation of a ``spring rise'' on a portion of the inland 
navigation system.
    A recent directive issued by the U.S. Fish and Wildlife Service to 
implement a ``spring rise'' immediately on the Missouri River is a 
reversal of water resource policy without appropriate public review, 
independent scientific validation, Congressional debate or endorsement. 
For decades, every Congress and Administration has endorsed a policy of 
water resource development that was designed to protect communities 
against natural disasters and serve efficient and environmentally 
friendly river transportation, reliable low-cost hydropower and a 
burgeoning recreation industry.
    The ``spring rise'' demanded by the Fish and Wildlife Service is 
based on the premise that we should ``replicate the natural 
hydrograph'' that was responsible for devastating and deadly floods as 
well as summertime droughts and even ``dust bowls.'' For decades, we 
have worked to mitigate the negative implications of the ``natural 
hydrograph'' with multiple-purpose water resources management programs, 
including reservoirs storing excess flood and snow-melt waters in the 
spring and releasing those waters in low-flow periods. These efforts 
have protected communities from floods, enabled the safe and efficient 
movement of a large percentage of the Nation's intercity freight by a 
mode that results in cleaner air, safer streets, and a higher quality 
of life and also provided hundreds of thousands of family-wage jobs in 
interior regions.
    Retaining Section 103 will allow National Environmental Policy Act 
(NEPA) compliance and provide time for Congress to adequately consider 
whether reversing proven water resources policy makes sense and whether 
a ``spring rise'' is scientifically supported. We urge you to keep the 
existing language in H.R. 4733 and oppose any efforts to strike or 
unnecessarily amend it.
            Sincerely,
                                       National Waterways Alliance.
                                 ______
                                 
          Statement of Bill Graves, Governor, State of Kansas
    I appreciate the opportunity to provide written testimony to the 
Committee on behalf of the State of Kansas. The Missouri River is 
certainly one of the nation's most important waters from many 
standpoints. It is rich in history from the Lewis and Clark expedition 
to the present and provides invaluable water for many beneficial uses.
    However, the focus of our comments at this time is on the Kansas 
River rather than on the main stem Missouri. The Kansas River and 
associated reservoirs is a unique and valuable system in its own right. 
The Kansas River system provides drinking water to one third of the 
population of Kansas in addition to the industrial users and power 
plants that rely on the water stored in the reservoirs as their sole 
source of water. In addition we have our own important natural resource 
and listed species issues. Water-based recreation, fishing and hunting 
are important to our economy and a quality of life issue for our 
citizens.
    My concern is the Kansas River system is currently being used to 
supplement navigation flows on the Missouri River through water 
releases from Milford, Tuttle Creek and Perry reservoirs. By this fall 
the Corps of Engineers intends to draw down these reservoirs as much as 
six feet below conservation, or normal pool level, to provide 
navigation flows. The risk to our water supplies in a time of drought 
impacts to fish and wildlife management and water-based recreation from 
this action are real.
    While I understand the difficulty of managing a river system for a 
variety of beneficial uses, I cannot support the Corps decision to use 
the Kansas River reservoirs to provide navigation flows on the Missouri 
Rivet at this time. My reason is very simple: I do not believe there is 
any real benefit to navigation from these releases. Yes, there is 
additional water in the Missouri River. But, State water engineers 
believe the change in stage is only between one and two inches of depth 
on the Missouri River. That is less than the waves on the water from a 
moderate breeze.
    For the past two years the State of Kansas has worked closely with 
the Kansas City District of the Corps of Engineers to jointly study the 
Kansas River basin to resolve this matter. While the State has 
completed its work on this, the Corps of Engineers efforts are still 
underway. We urge the Senate to direct the Corps of Engineers to cease 
releases of water from all Kansas basin reservoirs for navigation 
purposes at least until this study is completed.
    Thank you for your consideration of our concerns.
                                 ______
                                 
         Statement of Chad Smith, Director of American Rivers, 
                         Nebraska Field Office
    Mr. Chairman and members of the Subcommittee, thank you for the 
opportunity to present testimony on management of the Missouri River. I 
am Chad Smith, Director of the Nebraska Field Office for American 
Rivers, a national conservation organization dedicated to protecting 
and restoring the nation's rivers. American Rivers has over 30,000 
members across the country, and works in partnership with over 4,000 
river and conservation organizations. American Rivers, through its 
Voyage of RecoverySM campaign, is working with dozens of 
groups in the Missouri River Basin through the Missouri River Coalition 
to: 1) establish a string of restored natural areas along the Missouri; 
2) reform dam operations that sustain fish and wildlife and boost 
recreation and tourism opportunities; and 3) revitalize riverfronts in 
Missouri River communities to improve quality of life.
                 missouri river master manual revision
    Like all rivers, the driving force behind the mighty Missouri River 
was its ``natural hydrograph''--the seasonal rise and fall of water. 
The Big Muddy experienced rising flows in the spring and early summer 
from melting snow and rain. Higher flows were followed by declining 
flows during the late summer and throughout the fall.
    Today, these seasonal fluctuations are gone, replaced by stable 
flows to support commercial barge traffic. Fish and wildlife, people, 
and local communities have paid the price. Three native Missouri River 
species are on the brink of extinction, and more than 50 native species 
are listed by basin states or the federal government as rare, 
threatened, or endangered. Recreation on the river is given little 
priority in management decisions.
    But the approaching bicentennial of Lewis and Clark's ``Voyage of 
Discovery'' affords us the chance to help the Missouri again function 
like a river. The U.S. Army Corps of Engineers (Corps) will soon decide 
on a new plan for operating the Missouri's six big dams, which control 
the river's flow. A change in operations now will help restore some of 
the Missouri's important natural functions, making it a better place 
for native species. And the Missouri River will become a recreation and 
tourism destination.
    In November 2000, the U.S. Fish and Wildlife Service (Service) 
released its Final Biological Opinion on Missouri River dam operations. 
The biological opinion concludes that the least tern, piping plover, 
and pallid sturgeon are likely to go extinct on the Missouri River if 
the Corps fails to change dam operations. The Service proposed several 
elements of a ``reasonable and prudent alternative'' intended to assist 
the recovery of those species. Key elements include:

   Increasing flows from Gavins Point Dam and Fort Peck Dam in 
        the spring (``spring rise'') when water conditions permit, and 
        reducing Gavins Point Dam flows each summer (``split navigation 
        season'') to provide a semblance of the Missouri's natural rise 
        and fall of water levels.
   Restoration of river and floodplain habitat.
   Reservoir unbalancing.
   Adaptive management of the river system.
   Intensive biological monitoring.

    The Service's recommended changes are designed to prevent the 
extinction of three endangered and threatened species, but would also 
benefit all native Missouri River fish and wildlife and consequently 
the many outdoor enthusiasts wanting to enjoy the river.
    According to river biologists, the recommended flow changes mimic 
key elements of the Missouri's historic flow patterns, including higher 
flows through mid-June and lower flows from mid-July through August. 
The biologists note that this time frame encompasses the spawning 
period of most Missouri River native fishes, including pallid sturgeon, 
smallmouth bass, channel catfish, and paddlefish, and nest initiation 
by interior least terns and piping plovers.
    While the recommendations contained in the Service's biological 
opinion do not constitute a ``silver bullet'' solution for Missouri 
River fish and wildlife, they do represent the best science-based 
options available for restoring the form and function of the Missouri 
River. And they will significantly improve the ability of native 
Missouri River species to survive. Flexibility in river management 
options, as guided by biological monitoring through an adaptive 
management approach, is also key to ensuring the best results for fish 
and wildlife.
    The time is now for change on the Missouri River. Some key facts 
that support this statement:

   The science is solid. In January, the National Academy of 
        Sciences released a three year study of the science along the 
        river, concluding that ``degradation of the Missouri River 
        ecosystem will continue unless the river's natural water flow 
        is significantly restored,'' and that restoring riparian 
        habitat in the absence of dam reforms will be insufficient to 
        halt the river's decline. In addition, natural resource 
        professionals working for all the states along the river have 
        concurred with the scientific foundation for the flow targets 
        set by the U.S. Fish and Wildlife Service.
   The law is clear. Unless the Corps adopts the Service's flow 
        targets by the spring of 2003, the agency will be in violation 
        of the Endangered Species Act. The Corps has been on notice 
        since 1990 that its current plan jeopardizes the continued 
        existence of at least three native river species. Today's 
        decision sets the stage for further efforts in Congress to 
        create legal exemptions for politically influential economic 
        interests--and to undermine the fair and consistent 
        implementation of the law.
   The economy will benefit. The National Academy of Sciences 
        concluded that Missouri River dam reforms will ``enhance the 
        valuable fishery resources . . . increase waterfowl populations 
        . . . increase the abundance of largemouth bass . . . attract 
        more anglers to the region . . . and result in marked increases 
        in user-days for recreational fishing, commercial fishing, and 
        hunting'' and therefore may be ``justifiable solely on the 
        grounds that it represents an economic improvement'' over 
        current dam operations. Already, these activities amount to $85 
        million industry each year, in sharp contrast to the barge 
        industry which has dwindled to less than $7 million each year.
   The public supports change. Of the 55,000 comments submitted 
        to the agency on its dam guidance, 54,000 called on the Corps 
        to restore more natural flows to the Missouri. Since January, 
        eight Missouri River basin newspapers have editorialized 
        numerous times in favor of restoring more natural flows to the 
        Missouri. Six of the eight governors in the Missouri River 
        basin have formally recommended experimenting with flow changes 
        to restore the river.

    Thus, we 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 lead to the recovery of these species. In particular, we urge 
the Corps to immediately implement the alternative identified as 
``GP2021'' (the so-called ``Flexible Flow'' alternative), as this is 
the only alternative subjected to detailed analysis by the Corps in the 
RDEIS that fully captures all the elements of the Reasonable and 
Prudent Alternative (RPA) recommended by the Service in the Final 
Biological Opinion on Missouri River dam operations.
    Specfically, the Corps should gradually increase releases from 
Gavins Point Dam to 17,500 cubic feet per second (cfs) over full 
service navigation levels for a maximum of 30 days between May 1 and 
June 15 once every three years. The Corps should also implement an 
annual summer low flow period on the lower river by gradually reducing 
Gavins Point Dam releases down to 25,000 cfs between June 21 and July 
15, reducing releases further to 21,000 cfs until August 15, then 
gradually increasing releases back to 25,000 cfs between August 15 and 
September 1. These are the minimum dam reform steps necessary to help 
recover federally-listed species and help prevent the continued 
degradation of the Missouri River ecosystem.
    Almost 200 years ago, the explorers Lewis and Clark traveled up the 
Missouri River, and their journals describe an abundance of fish and 
wildlife in and along the river that is unimaginable today. The once 
dynamic and meandering river has been subdued by dams and levees and 
many of the species found by the explorers along the river are slowly 
disappearing.
    According to the Corps' own detailed analysis, moderate changes in 
dam operations can be made that would improve the river's health and 
boost local economies through increased recreation and tourism, while 
protecting ``traditional'' uses of the river like hydropower, 
navigation, floodplain farming, and flood control.
    The Corps' ultimate decision, which will be ``green-lighted'' by 
the White House, will be a clear indication of whether science and 
economics will rule the day, giving recreation and fish and wildlife 
interests equal treatment in river management, or whether a dwindling 
barge industry on the lower river will retain its stranglehold on the 
nation's longest and arguably most historic river.
Economic Issues
    These long overdue dam reforms will not only avoid the extinction 
of three listed species and reverse the decline of many other species 
native to the Missouri but will also meet the long-term economic and 
environmental needs of Missouri River communities.
    As the Corps' RDEIS demonstrates:

   GP2021 will create new opportunities for recreation and 
        economic development in riverside communities.
   GP2021 supports Missouri River barge navigation in the 
        spring and fall, when more than 80 percent of farm-related is 
        shipped.
   GP2021 will enhance Mississippi River barge navigation.
   GP2021 will not increase the risk of flooding.;
   GP2021 will provide benefits to production agriculture in 
        the Missouri River floodplain through enhanced groundwater 
        levels and improved drainage in the summer months.
            Recreation
    The Missouri's native fish and wildlife species are not only a 
critical part of America's natural heritage, but are also the 
foundation of a growing river-recreation industry. More than 4 million 
people annually spend more than 10 million ``visitor days'' at 
developed recreation sites along the Missouri River, generating at 
least $84.7 million in annual economic benefits, according to the 
RDEIS.\1\ Actual visitation and spending is actually much higher, but 
the RDEIS fails to measure recreation at undeveloped sites, 
underestimates spending on Missouri River recreation, excludes spending 
on food and lodging, and uses an improper methodology that narrowly 
links recreational use to river elevations.
---------------------------------------------------------------------------
    \1\ U.S. Army Corps of Engineers. 2001. Missouri River Water 
Control Manual Review and Update: Revised Draft Environmental Impact 
Statement. Northwestern Division. Portland, OR.
---------------------------------------------------------------------------
    Corps estimates of recreational use are based on visits to 
developed recreation sites such as marinas and ignores recreation at 
undeveloped sites, including bank fishing, sight-seeing, river 
festivals, private hunting clubs, fishing tournaments, and commercial 
boat tours. The Corps excludes the enormous economic benefits of the 
upcoming Lewis and Clark Bicentennial, and the role a healthy river can 
play in regional celebrations, including opportunities for hunting, 
fishing, camping, and sight-seeing. Federal, state, and private 
officials preparing for the bicentennial estimate that more than 10 
million Americans will retrace the steps of Lewis and Clark between 
2003 and 2006.
    The Corps also underestimates the amount visitors spend when 
utilizing the Missouri River by underestimating daily spending, and by 
excluding spending on lodging and food. The Corps estimated more than a 
decade ago that visitors spend $32 per day while visiting the Missouri, 
but state estimates are significantly higher. A 1990 study of Missouri 
River recreation in Montana concluded that per-day spending ranged 
between $40 and $66. A similar survey of Missouri River recreational 
use in North Dakota found that per-day spending ranged from $49 to as 
much as $117 for out-of-state visitors. Studies also suggest that the 
daily value of fishing is species-dependent: visitors spend more to 
catch walleye than they spend to catch catfish.
    States have concluded that Missouri River recreation generates 
substantially more annual economic benefits than the Corps' analysis:

   Missouri River recreation and tourism in South Dakota 
        generated $53.9 million in annual economic benefits in 1993, 
        according to state officials.
   Missouri River recreation and tourism generated $165 million 
        in annual economic impacts in North Dakota, according to state 
        officials.
   Use of the Missouri River in Nebraska generates as much as 
        $364.5 million in annual economic benefits, according to state 
        officials.

    Recreational opportunities on the lower river would be greatly 
increased. Exposed sandbars and shallower, slower water, coupled with 
restored habitat, would make the lower Missouri River much more 
inviting and accessible for fishing, camping, birding, recreational 
boating, and other forms of recreation.
    Lower summer flows also mean higher water levels in the 
reservoirs--benefiting anglers, boaters, and recreation-dependent 
businesses in the upper basin. And, releasing more water from Gavins 
Point and other Missouri River dams in the spring and less in the 
summer would improve the fisheries and the natural habitat of the free-
flowing river sections below the dams.
    Recreation already generates at least $90 million in annual 
economic benefits for the basin, but a restored Missouri River would 
boost that figure significantly. Revitalizing the Missouri River would 
provide additional outlets for recreation and tourism and would create 
many new economic opportunities in places like Bismarck, North Dakota; 
Yankton, South Dakota; Nebraska City, Nebraska; and Boonville, 
Missouri.
            Navigation
    GP2021 will also support Missouri River navigation during the 
spring and fall--when more than 80 percent of farm-related cargo is 
shipped--and will enhance navigation on the Mississippi River. 
Marginally reducing the meager amount of Missouri River barge traffic 
will not impact highway and rail transportation costs. Even the Corps 
concedes the marginal economic benefit of Missouri River barge 
navigation--less than $7 million annually, according to the RDEIS--
although the National Academy of Sciences found that actual benefits 
are closer to $3 million annually and that net benefits are eliminated 
when flows reach 30,000 cfs.\2\
---------------------------------------------------------------------------
    \2\ National Research Council. 2002. The Missouri River Ecosystem: 
Exploring the Prospects for Recovery. National Academy Press. 
Washington, DC.
---------------------------------------------------------------------------
    By contrast, the RDEIS estimates that hydropower generates $741 
million in annual economic benefits, water supply generates $610 
million in annual economic benefits, and flood control generates $410 
million in annual economic benefits. Nevertheless, the Corps has 
consistently managed the Missouri's mainstem dams primarily to benefit 
barge navigation--at the expense of every other economic and 
environmental use of the Missouri. Even recreation produces at least 12 
times as many economic benefits as navigation despite historic river 
management that has decimated the river's flora and fauna and limited 
access to boat ramps. Recreation between Sioux City and St. Louis alone 
produces twice as many economic benefits as Missouri River barge 
navigation, according to the RDEIS. Only 1.5 million tons of commercial 
cargo was shipped annually on the Missouri during the 1990s, far less 
than the 15 million tons predicted by the Missouri River Navigation 
Commission in 1929 and just three-tenths of 1 percent of the grain 
harvested each year in Nebraska, Iowa, Kansas, and Missouri.
    Despite the insignificance of Missouri River navigation, GP2021 
would provide sufficient flows for commercial navigation between April 
1 and mid-June, and from early September through November. The Corps 
estimates that under GP2021, barge navigation would continue to 
generate $4.75 million in annual economic benefits. Less than 20 
percent of farm-related cargo is shipped in July and August, according 
to the Corps. In essence, the Missouri River already operates in a 
``split navigation season'' format--fertilizer is moved upstream during 
spring, and grain is shipped downstream in the fall, and the amount of 
grain shipped downstream is fixed by the amount of fertilizer moved 
upstream.\3\ The presence of empty fertilizer barges from spring hauls 
is the only factor that makes shipping some corn and soybeans on the 
river economically viable.\4\ There is no evidence presented in the 
RDEIS that formal implementation of this informal custom would 
jeopardize Missouri River navigation.
---------------------------------------------------------------------------
    \3\ Baumel, P. 1998. The Competitive Benefit of the Missouri River? 
A Review of ``Rail Rates and the Availability of Barge Transportation: 
The Missouri River Region''. Environmental Defense Fund. Washington, 
DC.
    \4\ Ibid.
---------------------------------------------------------------------------
    GP2021 would have no impact on highway and rail rates, and the 
RDEIS does not reflect on the Corps' flawed 1994 competitive rate 
study. Agricultural economists from Iowa State University, the 
University of Nebraska, and Kansas State University concluded that the 
competitive rate study is ``likely meaningless'' and ``suffer(s) from 
several defects.'' 5,6 Low levels of Missouri River barge 
traffic have no measurable impact on transportation rates in the 
region, and the Corps has provided no evidence in the RDEIS that 
suspending summer barge navigation would impact transportation rates or 
threaten the long-term prospects of commercial navigation on the 
Missouri.
---------------------------------------------------------------------------
    \5\ Ibid.
    \6\ Babcock, M. and D. Anderson. 1999. An Evaluation of the U.S. 
Army Corps of Engineers' Measurement of the Economic Benefits of 
Missouri River Navigation. Environmental Defense Fund. Washington, DC.
---------------------------------------------------------------------------
    GP2021 would also enhance Mississippi River barge navigation 
between St. Louis and Cairo, a historic ``bottleneck'' that naturally 
suffers from low fall water levels. Many factors contribute to ``lost 
navigation efficiency,'' including shallow water forcing operators to 
spread their cargo across more tows. The Corps estimates in the RDEIS 
that ``lost navigation efficiency'' between St. Louis and Cairo 
annually costs the barge industry $45.3 million.
    Increasing the Missouri River's contributions to the Mississippi 
River during the fall would allow barge operators to put heavier loads 
on fewer barges and move through locks more quickly. Under the CWCP, 
constant amounts of water are released for a small amount of barges on 
the Missouri River for the entire 8-month navigation season. Thus, 
little water is available to the Mississippi when that river needs it 
most.
    By contrast, reducing summer flows increases the water available 
for fall flows into the Mississippi, which supports Mississippi River 
navigation. GP2021 cuts Mississippi River congestion losses by more 
than 16 percent--saving an estimated $7.3 million each year.
    This savings for the Mississippi River barge industry is greater 
than the annual economic benefit of the entire Missouri River barge 
industry. In addition, Mississippi River barge traffic, unlike Missouri 
River barge traffic, has an economic impact on truck and rail shipping 
rates.
    The tradeoff between Missouri River barge support and Mississippi 
River barge support has long been known. Agricultural economists from 
the basin continue to point out that particularly in droughts, managing 
flows on the Missouri River more naturally--which better supports 
Mississippi River navigation--could result in ``substantial benefits 
for agriculture in (the form of) lower rail rates.'' \7\
---------------------------------------------------------------------------
    \7\ Ibid.
---------------------------------------------------------------------------
            Flooding and Interior Drainage
    GP2021 will not increase the risk of flooding, and will provide 
benefits to production agriculture in the Missouri River floodplain 
through enhanced groundwater levels, in the spring and fall, and 
improved drainage in the summer months due to lower flows in the 
Missouri River.
    According to the RDEIS, GP2021 will provide $407.7 million in 
annual flood control benefits, or 98.9 percent of the benefits now 
provided by the current water control plan.\8\ As the RDEIS states, the 
impacts of GP2021 on overall flood control benefits are 
``insignificant.'' \9\ The RDEIS fails to note that from a flood 
control perspective, only lands located between the river and the 
levees lining the Missouri River would be impacted by dam releases. 
And, the RDEIS fails to note that the Reasonable and Prudent 
Alternative proposed in the Service's Final Biological Opinion would 
only be implemented, on average, once in every three years. The Final 
Biological Opinion provides the Corps ample flexibility to postpone 
spring dam releases if weather conditions would increase the risk of 
flooding.\10\
---------------------------------------------------------------------------
    \8\ U.S. Army Corps of Engineers. 2001. Missouri River Water 
Control Manual Review and Update, Revised Draft Environmental Impact 
Statement. Northwestern Division. Portland, OR.
    \9\ Ibid.
    \10\ U.S. Fish and Wildlife Service. 2000. Final Biological Opinion 
on the Operation of the Missouri River Main Stem Reservoir System, 
Operation and Maintenance of the Missouri River Bank Stabilization and 
Navigation Project, and Operation of the Kansas Reservoir System. 
Regions 6 and 3. Denver, CO and Ft. Snelling, MN.
---------------------------------------------------------------------------
    The RDEIS incorrectly suggests that GP2021 will have only negative 
impacts on the drainage of most floodplain farmland and groundwater 
levels. Both the RDEIS summary and main report fail to highlight the 
potential benefits of elevated groundwater levels in the spring and 
fall for crop growth, and fail to highlight the benefits of low summer 
flows on the drainage of floodplain farmland. The RDEIS instead focuses 
on the tiny fraction of farmland negatively impacted by higher 
groundwater levels in the spring and fall, and fails to note that 
farmland impacted by higher groundwater levels is typically farmed 
sloughs, chutes, and oxbow lakes that suffer from poor drainage 
regardless of river conditions. Less than 200 acres of the six levee 
districts analyzed by the Corps would be negatively impacted by higher 
spring and fall releases, increasing flood damages by approximately 
$650,000 a year.\11\ By contrast, the potential benefits of higher 
groundwater levels in the spring and fall and improved drainage 
conditions in the summer on a much greater number of farmland acres in 
the Missouri River floodplain are not calculated. The Corps' failure to 
document these benefits makes this analysis irrelevant and violates the 
purposes of the National Environmental Policy Act (NEPA).
---------------------------------------------------------------------------
    \11\ This number is inflated by the Corps' analysis, which can not 
segregate groundwater impacts and interior drainage impacts.
---------------------------------------------------------------------------
    The RDEIS also fails to consider alternatives that will offset the 
drainage impacts on the acres of land modestly impacted by GP2021, such 
as the installation of pumps, the acquisition of easements, or 
conversion to water-tolerant crops like trees and hay production. In 
particular, the RDEIS ignores the high likelihood that floodplain 
farmland impacted by dam reforms would be acquired from willing sellers 
through programs like the Corps' Missouri River Fish and Wildlife 
Mitigation Project. In fact, the Corps has not determined whether any 
of the land potentially impacted by higher spring and fall releases has 
already been acquired, leased, or converted to other uses. Finally, the 
Corps has not explored whether increasing dam releases after the 
harvest of floodplain crops can be accomplished without increasing the 
likelihood of ice damage. Again, the Corps' failure to assess these 
alternatives and to adequately forecast future conditions renders this 
analysis irrelevant and is a violation of the purposes of NEPA.
            Hydropower
    GP2021 provides a 2% increase in the total economic hydropower 
benefits over the CWCP, according to the RDEIS. GP2021 also increases 
marketable capacity for the Western Area Power Administration (WAPA) in 
both the summer and winter seasons. Thus, in general, restoring more 
natural flows to the Missouri River will result in an overall positive 
impact on the production of hydropower on the Missouri River system. 
This conclusion was found to be accurate in a recent report on Missouri 
River hydropower by noted hydropower economist David Marcus.\12\
---------------------------------------------------------------------------
    \12\ Marcus, D. 2002. Energy impacts of re-operating the Missouri 
River dams. American Rivers/Environmental Defense. Berkeley, CA.
---------------------------------------------------------------------------
    However, the RDEIS goes on to suggest that lower summer flows might 
result in a loss of firmpower revenue on the Missouri River system of 
up to $29.7 million is inaccurate. Those numbers are based on an 
analysis completed by WAPA, and are based on energy prices from January 
2001, when energy prices were at an all-time record high due to the 
California energy crisis.\13\ Using more typical current prices from 
June 2002, the prediction of revenue loss falls from roughly $30 
million to around $3 million for the GP2021 and GP 1521 
alternatives.\14\
---------------------------------------------------------------------------
    \13\ Ibid.
    \14\ Ibid.
---------------------------------------------------------------------------
    Even for customers who buy all of their electricity from WAPA, 
GP2021 would only increase costs from 1.7 cents per kwh to 1.74 cents, 
or about 2 percent.\15\ Customers buying only 10 percent of their 
electricity from WAPA might experience a 0.1 percent increase.\16\
---------------------------------------------------------------------------
    \15\ Ibid.
    \16\ Ibid.
---------------------------------------------------------------------------
    The price of retail electricity also includes the cost of 
transmission, distribution, marketing, metering, and billing, none of 
which would be affected by Missouri River flow changes. This means that 
retail price increases due to flow changes would be even less that for 
WAPA firm power customers. Without factoring in the positive impacts of 
increased capacity, the average rate increase for the region if GP2021 
was implemented would be about 1.5 cents per month for a typical 
residential customer.\17\
---------------------------------------------------------------------------
    \17\ Ibid.
---------------------------------------------------------------------------
    The original WAPA analysis ignores the value of increased 
marketable capacity on the Missouri River system that would come from 
restoring more natural flows to the river. If this were factored in, it 
is likely that flow changes could result in positive economic impacts 
of $8 million to $16 million annually.\18\ Also, the RDEIS fails to 
discuss the fact that under an alternative like GP2021, the loss of 
hydropower during extreme drought and flood events is reduced as 
compared to the CWCP. Not factoring this ``insurance value'' during 
extreme events into the analysis likely contributes to an 
overestimation of the negative impacts of implementing GP2021.
---------------------------------------------------------------------------
    \18\ Ibid.
---------------------------------------------------------------------------
    The estimated revenue loss resulting from the implementation of 
GP2021 can also be mitigated by opportunities to increase summer 
revenues at other Missouri River projects such as Ft. Peck Dam. For 
example, flat releases out of Ft. Peck during the summer of 2001 were 
marketed to offset power shortages due to drought in the Columbia 
Basin, generating substantial revenue for WAPA. This occurred while 
average releases during the summer of 2001 out of Gavins Point Dam were 
23,000 cfs. This type of intra-system activity can be used to help 
offset any potential negative impacts of restoring more natural flows 
to the Missouri.
    Another issue related to power production is the presence of 
generating plants along the lower river, both nuclear and coal-fired. 
In both cases, the generating plants have maximum ambient temperature 
requirements for river water intake, as well as maximum temperature 
requirements for discharge of thermally-heated water back into the 
Missouri River. Power plant representatives have indicated that low 
summer flows are not necessarily an operational problem, but that high 
summer flows, which are a byproduct of current operations, create more 
of a problem than low flows.
    Nevertheless, power plant representatives do voice a concern with 
low summer flows relating to the constraints of current National 
Pollution Discharge Elimination System permits. To avoid violating the 
requirements of these Clean Water Act permits, generating plants along 
the river must avoid releasing water back into the river at too high of 
a temperature. In the RDEIS, the Corps asserted that Gp1521 and GP2021 
have the ``potential'' to limit the output of downstream powerplants by 
an average of up to 278 Mw in July.
    Further study shows this estimate is not accurate. According to the 
Corps, 9 percent of the alleged impact is upstream of Gavins Point Dam, 
which would in reality not be affected by low summer flows out of 
Gavins Point Dam. More importantly, the Corps apparently ignored the 
actual permits for the downstream power plants.\19\ A vast majority of 
the impacts reported in the RDEIS stem from operations at the Neal 
power station in Iowa. A review of the permit for this power station 
shows that discharges would not violate heat limits even if river flows 
reached 10,500 cfs, much lower than the 21,000 cfs flows required by 
GP2021.\20\
---------------------------------------------------------------------------
    \19\ Ibid.
    \20\ Ibid.
---------------------------------------------------------------------------
    Research done by the Nebraska Game and Parks Commission, the 
University of Nebraska, and others in the 1970s determined that 
existing thermal discharges in the summer were not having significant 
biological impact on the Missouri River.\21\ This suggests that even if 
low flows did result in some thermal impacts, current temperature 
limits on return water could potentially be modified, or permit 
variances could be granted, allowing power plants to operate fully 
without causing significant negative impacts on the ecology of the 
Missouri River. However, this situation warrants further analysis 
through updated monitoring in an adaptive management process on the 
Missouri. The RDEIS also fails to explore other means of dealing with 
thermally-heated return water, like pumping this water first into 
created wetlands where temperature problems could be abated.
---------------------------------------------------------------------------
    \21\ Hesse, L., G. Hergenrader, H. Lewis, S. Reetz, and A. 
Schlesinger. 1982. The Middle Missouri River: A Collection of Papers on 
the Biology with Special Reference to Power Station Effects. The 
Missouri River Study Group. Norfolk, NE.
---------------------------------------------------------------------------
Environmental Issues
    High spring flows provide spawning cues for manly fish species 
found in the Missouri, including the endangered pallid sturgeon. These 
high flows also build new sandbars on the river and scour vegetation 
from existing sandbars. High flows also wash vegetation and other 
organic matter into the Missouri, forming much of the river's food 
base. Low flows are also critical for fish species like sturgeon. 
Recently spawned fish are poor swimmers and are easily carried by water 
currents. Many larval fish depend on easy access to shallow, slower-
flowing areas where they can feed and avoid predators. And, low flows 
expose the sandbars created and cleaned during the high-flow period to 
make them useable as nesting habitat for birds like the endangered 
interior least tern and the threatened piping plover.
    Current Missouri River dam operations fail in two ways: 1) by 
failing to provide sufficiently high spring releases to create adequate 
sandbar habitat or to serve as a reproductive cue for native fish 
species, and 2) by failing to provide sufficiently low summer flows to 
expose sandbars and to provide suitable shallow-water habitat for 
larval fish species, including larval pallid sturgeon.
    As the Final Biological Opinion notes, the availability of habitat 
and the health of Missouri River fish and wildlife populations are 
shaped by the timing, variability, and amplitude of the natural 
hydrograph, and dam releases continue to serve as a master 
variable.\22\ The annual rise and fall of the Missouri River is 
essential to the health of large floodplain river ecosystems like the 
Missouri, according to the National Academy of Sciences' recent report, 
The Missouri River Ecosystem: Exploring the Prospects for Recovery. The 
river's ``flood pulse'' adds organic matter and nutrients to the river; 
fuels the production of floodplain plants, and resets plants 
succession; and provides a reproductive cue for many species adapted to 
the river's fluctuations, according to the Academy report. ``Fish 
spawning, insect emergence, and seed dispersal are commonly triggered 
by rising waters,'' the Academy wrote.\23\
---------------------------------------------------------------------------
    \22\ U.S. Fish and Wildlife Service. 2000. Final Biological Opinion 
on the Operation of the Missouri River Main Stem Reservoir System, 
Operation and Maintenance of the Missouri River Bank Stabilization and 
Navigation Project, and Operation of the Kansas Reservoir System. 
Regions 6 and 3. Denver, CO and Ft. Snelling, MN.
    \23\ National Research Council. 2002. The Missouri River Ecosystem: 
Exploring the Prospects for Recovery. National Academy Press. 
Washington, DC.
---------------------------------------------------------------------------
            Pallid Sturgeon
    GP2021 would improve river conditions for the Missouri's native 
fish species, preventing the extinction of the pallid sturgeon and 
reversing the decline of many other native fish species.
    In particular, GP2021 would provide a ``spawning cue'' 
approximately once in every three years, according to the RDEIS. By 
contrast, the current water control plan provides a spawning cue less 
than once in every ten years.
    Sturgeon reproduction is closely tied to rising flows in the late 
spring and early summer--a pattern that has been eliminated to provide 
steady flows for barge traffic. Sturgeon were once plentiful in the 
Missouri River, growing to lengths greater than six feet, weighing more 
than 80 pounds, and supporting a robust commercial fishing industry. 
The have occupied the Mississippi and Missouri River basins for more 
than 300 million years, according to some estimates. But, the 
Missouri's sturgeon population has been nearly driven into extinction 
in less than 50 years.
    Since 1990, there has been no documented evidence of natural 
recruitment of pallid sturgeon on the Missouri River, meaning no new 
young sturgeon are surviving to become members of the reproductive 
adult population. Most of the sturgeon remaining in the Missouri are 
mature adults and may only have a few more opportunities to spawn. 
Because sturgeon only breed occasionally and only under optimal 
conditions, the chances of natural reproduction decline each year that 
dam reforms are delayed and the reproductive cues provided by rising 
spring flows are postponed. The Missouri's few remaining female 
sturgeon may only produce eggs during one or two more spawning events.
    Ongoing delays by the Corps steadily reduce the likelihood that the 
Missouri's few remaining sturgeon will successfully reproduce. Current 
dam operations provide suitable spawning conditions only once every 10 
to 11 years above Kansas City and only once every 5 to 6 years below 
Kansas City. Although the fish have long life spans, they have 
relatively low capacity for population increases.
    The absence of low flows is also a serious threat to the existence 
of the pallid sturgeon. Once spawned, fish larvae drift in search of 
suitable shallow water habitat. In the past, roughly 100 acres of 
shallow-water habitat was available in each river mile during the 
summer months, providing habitat for larval sturgeon. Today, about 1 
acre is available in each river mile. Reducing summer dam releases, as 
has been proposed by the Service, would increase shallow water habitat 
to about 8 acres per mile, providing critical habitat for larval pallid 
sturgeon.
    A common claim made by advocates of status quo Missouri River dam 
operations is that even if dam release are modified to provide higher 
flows in the spring to serve as a spawning cue, pallid sturgeon will 
not reproduce because of the lack of appropriate gravel substrates for 
spawning in areas such as the National Recreational River stretch below 
Gavins Point Dam or the lower river. First, there is no documented, 
definitive scientific information that supports the notion that pallid 
sturgeon spawn exclusively on gravel substrates. Second, exhaustive 
research done through the river-wide Benthic Fish Study completed in 
2001, Population Structure and Habitat Use of Benthic Fishes Along the 
Missouri and Lower Yellowstone Rivers, shows that there is indeed 
gravel substrate below both Ft. Peck Dam and Gavins Point Dam, which 
are priority reaches for the pallid sturgeon. The Benthic Fish Study 
shows that in fact, there is a greater abundance of gravel in the 
Missouri River below Gavins Point Dam (7.1%) than below Ft. Peck Dam 
(5.1 and that there is a comparable amount of gravel in the lower river 
below Sioux City (5.0%).\24\
---------------------------------------------------------------------------
    \24\ Galat, D., M. Wildhaber, and D. Dieterman. 2001. Spatial 
Patterns of Physical Habitat: Volume 2: Population Structure and 
Habitat Use of Benthic Fishes Along the Missouri and Lower Yellowstone 
Rivers.
---------------------------------------------------------------------------
    In addition to providing sturgeon a chance for survival, GP2021 
would also reverse the decline of many of other native fish species. 
Paddlefish, blue sucker, shortnose gar, and a variety of chubs and 
shiners considered rare by state officials would benefit from 
restoration of some semblance of the river's natural hydrograph. GP2021 
would also provide significantly greater benefits to Missouri 
sportfishing. For example, GP2021 would significantly improve reservoir 
fish production, and would greatly improve sportfishing options on the 
lower river.
            Interior Least Terns and Piping Plovers
    GP2021 is necessary to avoid the extinction of the endangered 
interior least tern and the threatened piping plover. In the Final 
Biological Opinion, the Service concluded that current dam operations 
``jeopardize the continued existence of the endangered interior least 
tern and threatened piping plover because (dam) operations eliminate 
essential nesting habitat.'' \25\ This conclusion was made previously 
by the Service in both a 1990 Final Biological Opinion and a 1994 Draft 
Biological Opinion.
---------------------------------------------------------------------------
    \25\ U.S. Fish and Wildlife Service. 2000. Final Biological Opinion 
on the Operation of the Missouri River Main Stem Reservoir System, 
Operation and Maintenance of the Missouri River Bank Stabilization and 
Navigation Project, and Operation of the Kansas Reservoir System. 
Regions 6 and 3. Denver, CO and Ft. Snelling, MN.
---------------------------------------------------------------------------
    Sandbars free of vegetation provide critical nesting habitat for 
least terns and piping plovers, and the reproductive success and 
failure of these rare shorebirds is directly correlated to the 
abundance or absence of sandbar habitat. The amount and availability of 
sandbar habitat in the summer is directly linked to high spring dam 
releases and low summer dam releases. Sandbars are created when dam 
releases are increased in the spring, scouring the river's bottom and 
banks. As dam releases decline during the summer, the sandbars remain 
exposed, and the shallow water near sandbars provides important feeding 
habitat for nesting birds and chicks.
    The Service listed the interior population of the least tern as an 
endangered species in 1985. Least terns were once a common species 
along the Missouri River. During their exploration of the Missouri 
River, Lewis and Clark found the birds nesting frequently, particularly 
along the lower river. Today, terns breed primarily on the relatively 
free-flowing river stretches that remain. According to Corps data on 
terns compiled since 1986, over 90% of terns on the Missouri River nest 
on riverine sandbars.
    Interior least tern reproduction is closely tied to the spring rise 
and subsequent lowering of summer flows that used to characterize the 
Missouri River. Least terns prefer to nest on sandbar islands that are 
largely free of vegetation that can hide predators. High spring flows 
are necessary to build new sandbars to scour existing sandbars of 
vegetation. Because least terns nest close to water, rising water 
levels after nest initiation will destroy the nests. The Service has 
consistently found that existing Missouri River water management has 
resulted in the loss of thousands of acres of sandbar habitat, 
significant vegetative encroachment on remaining sandbars, and direct 
flooding of tern nests in a manner that kills eggs and chicks.
    Least terns also depend on productive foraging habitats, both 
immediately prior to breeding and within a short distance of the nest. 
Good foraging habitat is critical to the energy reserves needed for 
successful nesting. Sloughs, side channels, tributaries, and other 
shallow water habitats ``produce the fish and benthic invertebrates 
that terns and plovers, respectively, depend on for food.'' \26\ Fish 
and invertebrate reproduction also depends on a more natural river flow 
pattern.
---------------------------------------------------------------------------
    \26\ Ibid.
---------------------------------------------------------------------------
    Like the least tern, the piping plover received federal protection 
in 1985. Naturalists once found the piping plover common in the central 
United States. Since that time, the population has decreased over most 
of its range, and the plover has vanished as a nesting species in many 
areas. Because a critical source of the plover's ongoing decline is the 
loss of essential habitat, the failure to protect and restore nesting 
habitat will contribute the species' extinction.
    Piping plover nesting behavior is similar to the least tern. Like 
the tern, the plover relies on sparsely vegetated sandbars and nests in 
virtually the same areas as the tern. The impacts of current Missouri 
River dam operations on piping plovers are therefore largely identical 
to those identified for the least tern. Current operations of the 
Missouri River system have destroyed much of the piping plover's 
essential nesting habitat. According to the Service, these losses ``are 
significant and threaten the survival and recovery of the plover.'' 
\27\
---------------------------------------------------------------------------
    \27\ Ibid.
---------------------------------------------------------------------------
    In the early 1990s, the Service established reproductive goals 
necessary to restore stable populations of terns and plovers on the 
Missouri River system. Recovery fledge ratios of 0.7 for terns and 1.44 
for plovers were established to provide guidance on the status of the 
two birds on the Missouri River. Prior to 1998, the Corps consistently 
failed to meet these reproductive goals. Between 1986 and 1999, for 
example, the average fledge ratio (the number of chicks fledged per 
adult pair) for the least tern was 0.65 and for the piping plover was 
0.80. Nest success for terns during that same time was only 43.3 
percent and was only 43.6 percent for plovers.
    Unusually high dam releases in 1997 established the clear 
connection between the presence of clean sandbars and successful tern 
and plover reproduction. Until dam releases were increased and adequate 
sandbar habitat created, the Corps had never met legally-mandated 
reproductive goals for the least tern and piping plover. During 1997, 
the Missouri River system experienced record runoff, resulting in 
sharply higher flows on the river at critical periods. The following 
summer (1998), more normal flows revealed a dramatic increase in the 
availability of clean, high-elevation sandbars in some of the river's 
more natural segments like the National Recreational River stretch 
below Gavins Point Dam for nesting by terns and plovers. That summer, 
for the first time on record, both the interior least tern and the 
piping plover met their recovery fledge ratios. Many of those sandbars 
have persisted on the river's more natural segments, and as a result, 
terns have met their recovery fledge ratio every year since, and 
plovers have met their recovery fledge ratio two out of four years.
    However, the sandbars created by the high runoff of 1997 are 
continually eroding and being covered by vegetation. Although the terns 
and plovers have continued to meet their recovery fledge ratios, the 
numbers are slowly declining as the sandbars disappear or become 
unusable. For example, the least tern fledge ratio declined from 1.73 
in 1998 to 1.06 in 2001, and the plover fledge ratio declined over the 
same period from 1.61 to 1.38.\28\ With reproductive success declining, 
and since the CWCP does not provide rising flows in the spring to build 
and scour sandbars or lower flows in the summer to expose sandbars, the 
Corps will soon once again fail to meet the required reproductive goals 
for both birds unless dam releases are increased and new sandbars 
established.
---------------------------------------------------------------------------
    \28\ U.S. Army Corps of Engineers. 2001. Results of Monitoring of 
Interior Least Tern and Piping Plover Nesting on the Missouri River 
system, 1986-2001. Omaha District. Yankton, SD.
---------------------------------------------------------------------------
    The GP2021 alternative increases tern and plover nesting habitat on 
the Missouri River by 74% over the CWCP, according to the RDEIS. This 
is the largest increase in tern and plover habitat among all of the 
modeled alternatives in the RDEIS. In particular, this alternative 
includes increased habitat below Garrison, Ft. Randall, and Gavins 
Point Dams, which have been identified by river biologists as the 
priority reaches for terns and plovers on the Missouri River.
General Considerations
    The Corps must immediately implement dam reforms to avoid the 
extinction of three federally protected species and to reverse the 
decline of more than 70 other species native to the Missouri River. The 
Final Biological Opinion anticipates immediate implementation of dam 
reforms. The Opinion states on p. 243 that the Corps should ``implement 
components of recommended flows (e.g. spring rise only, summer low flow 
only, modified rise, or low flow) as quickly as possible.'' And the 
recent National Academy of Sciences report on Missouri River science 
calls for ``decisive and immediate management actions'' to restore the 
river's pattern of high and low flows.
    Despite this scientific consensus, the Corps continues to delay dam 
reforms despite ongoing violations of the Endangered Species Act and 
overwhelming evidence of the economic benefits of dam reforms for 
riverside communities. As the Service noted on p. 234 in the Final 
Biological Opinion, ``the primary elements necessary to avoid jeopardy 
have not substantially changed since they were first outlined in the 
1990 biological opinion and later refined further in the 1994 Draft 
Biological Opinion.''
    Unfortunately, this pattern of delay by the Corps has a long 
history:

   The Corps consistently refused to enter into formal 
        consultation with the U.S. Fish and Wildlife Service to address 
        the needs of the pallid sturgeon.
   The Corps failed to include alternatives in a 1994 EIS and a 
        1998 EIS that adequately addressed the needs of endangered 
        species.
   The Corps proposed dam operations in 1994 and 2000 that 
        would not comply with the ESA.
   The Corps consistently delayed completion of the Master 
        Manual Review.
   The Corps refused to implement interim conservation measures 
        to recover listed species, including habitat restoration and 
        modest dam reforms.
   The Corps announced in June of this year that they were 
        forcing the Fish and Wildlife Service back into consultation on 
        endangered species issues, and that final decisions on a 
        revised Master Manual would be ``indefinitely delayed.''

    The Corps has a legal duty to immediately implement dam reforms. 
Congress enacted the Endangered Species Act to provide a means 
``whereby the ecosystems upon which endangered and threatened species 
depend may be conserved.'' Section 9 of the ESA makes it illegal for 
the Corps to ``take'' protected species, and the term ``take'' is 
broadly defined to include actions which ``harm'' or ``harass'' the 
species and their habitat, including habitat impacts that significantly 
impair essential behavior, including breeding, feeding, and sheltering.
    Section 7 of the ESA requires that federal agencies ensure that 
agency actions are not likely to jeopardize the continued existence of 
any listed species; that is, not reasonably expected to reduce 
appreciably the likelihood of both the survival and recovery of a 
listed species by reducing the reproduction, numbers, and distributions 
of that species. Section 7 also requires the Service to consult with 
the Corps and to suggest reasonable and prudent alternatives that, if 
implemented, would prevent actions likely to jeopardize the continued 
existence of the species.
    The Corps has ample flexibility to implement the Reasonable and 
Prudent Alternatives proposed in the Final Biological Opinion. In fact, 
according to the Congressional Research Service, there is ``no 
statutory mandate for any particular flows, levels of navigation depth, 
or for length of season of operations, etc. in the principal 
legislative authorizations.'' \29\ Indeed, Section 1(b) of the Flood 
Control Act of 1944 suggests that Congress did not intend for 
navigation to be conducted in a way that impairs other project 
purposes, and the 1958 Fish and Wildlife Coordination Act ensures that 
fish and wildlife (an authorized project purpose) must ``receive equal 
consideration with other project purposes.'' \30\ Thus, the Corps has 
tremendous discretion in how it manages Missouri River flows and 
navigation seasons, and this management must be carried out in a way 
that gives equal weight to all the authorized project purposes of the 
Missouri River system, including fish and wildlife and recreation.
---------------------------------------------------------------------------
    \29\ Congressional Research Service. 2000. Duties of the Army Corps 
of Engineers Regarding Missouri River Flows and the Endangered Species 
Act. Washington, DC.
    \30\ Ibid.
---------------------------------------------------------------------------
    The Corps has not identified other alternatives that would lead to 
the recovery of listed species and reverse the decline of the 
Missouri's other troubled wildlife. In particular, expansion of the 
Missouri River Fish and Wildlife Mitigation Project, or other measures 
that restore habitat, are not by themselves measures that avoid 
jeopardy. In light of the historic destruction of Missouri River 
habitat by the Corps,\31\ we support proposals to accelerate the 
restoration of floodplain and aquatic habitat, including the expansion 
of the Missouri River Fish and Wildlife Mitigation Project. We urge the 
Corps to quickly expand the Mitigation Project, and to expand the 
project's focus on aquatic habitat restoration. However, habitat 
restoration alone will not meet the Corps' legal duties under the ESA. 
The National Academy of Sciences concluded that current habitat 
restoration efforts on the river are ``insufficient to noticeably 
recover ecological communities and fundamental physical processes in 
the Missouri River ecosystem.\32\ Further, the Academy went on to 
conclude the following:
---------------------------------------------------------------------------
    \31\ The Corps' channelization of the Missouri eliminated nearly 
all of the river's sloughs, side channels, and sandbars, including more 
than 90 percent of the Missouri's islands and adjacent wetlands and 97 
percent of the Missouri's sandbars between Sioux City and St. Louis. 
Corps channelization cut off most of the lower Missouri from the 
river's floodplain, contributed to an 80 percent decline in the 
vegetation and insects available to aquatic life, and helped reduce 
suspended sediment loads by more than two-thirds.
    \32\ National Research Council. 2002. The Missouri River Ecosystem: 
Exploring the Prospects for Recovery. National Academy Press. 
Washington, DC.

        ``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.'' \33\
---------------------------------------------------------------------------
    \33\ Ibid.

    Without flow restoration, physical habitat restoration efforts will 
fail to achieve a meaningful level of ecosystem health, according to 
the Academy report. As the Final Biological Opinion and the Academy 
report repeatedly demonstrate, the availability of habitat and the 
health of Missouri River native species are shaped by the frequency, 
duration, magnitude, timing, and variability of the natural hydrograph, 
and dam releases are a driving variable controlling flows on the river. 
Until dam operations are 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.
    Except for GP2021, the GP or ``environmental'' alternatives 
receiving detailed analysis in the RDEIS all fail to fully capture the 
elements of the RPA in the Service's Final Biological Opinion. The RPA 
recommendations have been described by the Missouri River Natural 
Resources Committee as ``biologically sound and scientifically 
justified.'' \34\ According to the RDEIS, the GP2021 alternative 
outperforms all of the other GP alternatives in nearly all of the 
analyzed environmental categories. From a biological perspective, 
GP2021 is the alternative that will lead to the most meaningful 
restoration of the Missouri River's form and function.
---------------------------------------------------------------------------
    \34\ Missouri River Natural Resources Committee. May 21, 2001. 
Letter to Interior Secretary Gale Norton.
---------------------------------------------------------------------------
    The GP2021 alternative provides substantial environmental, 
recreation, and economic gains for the Missouri River basin in 
comparison to the CWCP. 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 adopt GP2021 as the Preferred 
Alternative in the Final Environmental Impact Statement for the 
Missouri River Master Water Control Manual and implement that 
alternative as soon as possible.
               long-term monitoring on the missouri river
    American Rivers fully supports the efforts of Senator Dorgan of 
North Dakota and Senator Johnson of South Dakota to introduce the 
``Lewis and Clark Voyage of Scientific Discovery Act'' in the Senate. 
This bill would establish the Missouri River Environmental Assessment 
Program, a long-term environmental monitoring program that would help 
to coordinate river research and provide information crucial to making 
management decisions on the Missouri. This program, developed 
cooperatively by the basin state fish and wildlife management agencies, 
key federal agencies, and numerous Missouri River scientists and fish 
and wildlife managers, is critical for implementing sound, long-term 
management practices on the Missouri River.
          missouri river fish and wildlife mitigation project
    Earlier this year, the Corps delivered a report to Congress 
detailing the need for up to $1.3 billion over the next 30-35 years to 
restore one-quarter of the habitat along the lower Missouri River lost 
to channelization. This funding would be for the Missouri River Fish 
and Wildlife Mitigation Project, the primary habitat restoration 
program along the lower Missouri River from Sioux City, Iowa to St. 
Louis. Assuming the Corps will partner closely with the state fish and 
wildlife management agencies in Nebraska, Iowa, Kansas, and Missouri to 
design and build appropriate aquatic and terrestrial habitat 
restoration projects along the lower river, American Rivers fully 
supports this major increase in funding for the mitigation project.
    Construction and operation of federal water projects on the 
Missouri River have nearly eliminated the spawning, nursery, and 
foraging habitat critical for the survival of the river's native fish 
and wildlife. The river between Sioux City and St. Louis, channelized 
to one-third of its original width to support barge traffic, has lost 
more than 90 percent of its wetlands, islands, chutes, and sandbars. 
Consequently, dozens of the species native to the Missouri River and 
its floodplain have declined and are now considered endangered, 
threatened, or of special concern by federal and state experts. The 
loss of habitat also threatens a growing recreation industry along the 
Missouri.
    The Missouri River Fish and Wildlife Mitigation Project was created 
in the 1986 Water Resources Development Act to reverse the impacts of 
lower river channelization and bank stabilization through land 
acquisition from willing sellers. The mitigation project restores 
chutes, side channels, and other off-channel floodplain habitat 
important for river wildlife. It has been very popular among citizens 
and public officials in the region and has been strongly supported by 
numerous Missouri River Basin members of Congress.
    In the Water Resources Development Act of 1999, Congress authorized 
an 118,650-acre increase in the amount of land that could be purchased 
from willing sellers and restored under the mitigation project. In 
addition to the amount of habitat restored under the original 
authorization, when complete this would amount to the restoration of 
roughly one-quarter of the 500,000 acres of habitat lost along the 
lower Missouri to channelization. Since both flow changes and habitat 
restoration are necessary to help ensure the long-term health of the 
Missouri River, it is imperative that Congress provide the funding 
necessary to implement the Missouri River Fish and Wildlife Mitigation 
Project.
                               conclusion
    I'd like to thank the Committee for this opportunity to provide 
written testimony on Missouri River management. If any Members of the 
Committee have questions, I'd be happy to respond in writing, or I may 
be reached by telephone at (402) 477-7910 or e-mail at 
[email protected].
                                 ______
                                 
Statement of Jonathan Bry, Conservation Coordinator, Dacotah Chapter of 
                            the Sierra Club
    The Missouri River desperately needs our attention. The 200 year 
anniversary of the expedition of Lewis and Clark and their Corps of 
Discovery is approaching so now is the perfect time to restore some of 
the natural characteristics of the Missouri River.
    The flow of Missouri River is currently being managed for barge 
interests below Sioux City Iowa, yet the most spectacular stretches of 
the river, like the Garrison Reach, are upstream. The shipping industry 
and the Bush administration seem to view the Missouri River as nothing 
more than a source of water to float a few barges while most Americans 
are aware that the river is much more valuable than that. The value of 
the Missouri River can not be truly appreciated when it is managed to 
push freight, rather than for habitat and recreational opportunities. 
According to the Army Corps, allowing more natural flows in the spring 
and summer will not affect flood control and they will actually 
increase hydro power.
    We are engineering the Missouri River to death by attacking the 
river on several fronts. It seems that we have not learned from the 
mistakes of allowing the wishes of a politically influential industry 
to be placed above the needs of fish, wildlife and people. The 
downstream reach of the Missouri River has been entirely stabilized 
with absolutely no consideration for aesthetic qualities, or for fish 
and wildlife habitat. If we are not careful, most of our rivers may one 
day resemble shipping channels. The decisions that we make now will 
affect the way we perceive the Missouri River and other rivers in the 
future.
    It may be difficult to completely restore the dynamics of the free-
flowing, pre-dam Missouri River, but it is possible to mimic natural 
flows by timing dam releases to accommodate the seasons. A spring rise 
and lower summer flows will help to ensure the survival of the 
endangered interior least tern, the threatened piping plover and the 
endangered pallid sturgeon. It will also benefit fishing and other 
recreational opportunities in states like North Dakota. The economic 
benefits of recreation exceed that of the barge industry by at least a 
factor of 10 and is growing fast. Practically all residents of North 
Dakota support more natural flow changes for the Missouri River.
    The expense of maintaining the Missouri River to accommodate an 
insignificant amount of barge traffic does not justify the financial 
benefits that the barge industry generates. The expense of managing the 
Missouri River mainly for this relatively small industry and the 
environmental cost that we must all pay are very high.
    The barge industry claims that you don't have to radically alter 
the flow of the river to create wildlife habitat. First of all, the 
river has already been radically altered to provide a steady flow of 
water to support the dwindling barge industry. Managing the river using 
the recommendations of the U.S. Fish and Wildlife Service should not be 
considered a radical alteration since it brings us closer to living 
with a more natural river. A more natural hydrograph needs to be 
reinstated.
    The Army Corps of Engineers is required by law to insure that any 
action authorized, funded, or carried out by such agency is not likely 
to jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of habitat of such species.
    Modifying the Final Biological Opinion of the U.S. Fish and 
Wildlife Service so that the Army Corps of Engineers does not violate 
the Endangered Species Act of 1973 is not an option. Modifying or 
rewriting a scientific report will not change the original findings 
that were based on solid science. The National Academy of Sciences two 
year study concludes that the degradation of the Missouri River 
ecosystem will continue unless the river's natural water flow is 
significantly restored. It states that just restoring riverside 
habitat, in the absence of dam reforms, will be insufficient to halt 
the river's decline. We strongly agree with both the National Academy 
of Sciences and the U.S. Fish and Wildlife Service's water flow 
recommendations.
    The Army Corps of Engineers has received about 55,000 comments on 
the various options for reforming how the agency manages its six big 
dams on the Missouri River. There are six alternatives to the Master 
Water Control Manual in the Missouri River Revised Draft Environmental 
Impact Statement. Over 50,000 of those comments are in favor of 
restoring more natural flows to the river. If changes in flow are not 
implemented, the comments of the public will have been completely 
ignored. We strongly support the GP2021 option.
    President Bush recently signed a proclamation designating 2003 
through 2006 as the Lewis and Clark Bicentennial. He asked all 
Americans to observe this event with appropriate activities that honor 
the achievements of the Lewis and Clark Expedition. He also directed 
Federal agencies to work in cooperation with each other, States, 
tribes, communities, and the National Council of the Lewis and Clark 
Bicentennial to promote educational, cultural, and interpretive 
opportunities for citizens and visitors to learn more about the 
natural, historical, and cultural resources that are significant 
components of the Lewis and Clark story. I can not think of a better 
way to commemorate the Lewis and Clark Bicentennial, than to restore 
the Missouri River by allowing it to flow more naturally as it did 
during the expedition of the Corps of Discovery nearly 200 years ago.
    After twelve years of study costing millions of dollars, the U.S. 
Army Corps of Engineers has not yet released a preferred alternative to 
the Master Water Control Manual. The U.S. Fish and Wildlife Services 
deadline of implementing a better flow plan by March 2003, is 
approaching fast. If the Army Corps keeps the status quo, they will be 
in violation of the Endangered Species Act. They may also be 
contributing to a growing list of new endangered species on the 
Missouri River.
    The needs of upstream states like North Dakota have been ignored 
for too long. It is time to update the master manual for the Missouri 
River by selecting the GP2021 alternative, over the current water 
control manual. The quality of life for those living in the Missouri 
River basin will be diminished if the longest river in the United 
States is not restored and preserved for future generations. The 
Missouri River enhances our quality of life and it gives young people 
another good reason to stay in North Dakota.
                                 ______
                                 
Statement of Richard H. Opper, Executive Director of the Missouri River 
                    Basin Association, Lewistown, MT
    My name is Richard Opper, and I am the Executive Director of the 
Missouri River Basin Association (MRBA), P.O. Box 301, Lewistown, 
Montana 59457. On behalf of MRBA, I thank you for the opportunity to 
provide testimony to this hearing.
    The MRBA is a coalition of eight states (Iowa, Kansas, Missouri, 
Montana, Nebraska, North Dakota, South Dakota, and Wyoming) and the 
Indian tribes of the Missouri Basin. MRBA has been working with the 
Corps of Engineers and other federal agencies since 1989 to revise the 
Missouri River Master Water Control Manual (Master Manual).
    In 1995, the Corps of Engineers asked MRBA to develop aspects of a 
river operating plan that would be acceptable to the basin's states and 
Indian tribes, and MRBA accepted the challenge, Initially, MRBA focused 
on developing recommendations to improve the overall economic and 
environmental health of the river basin. This work culminated in the 
April 1998 publication of MRBA's recommendations, a document that 
continues to serve as a planning guide for the association.
    Next, MRBA turned its attention to the two most complex and 
contentious issues in the basin: drought flow management and recovery 
of the basin's threatened and endangered species. MRBA spent nearly two 
years in discussions about these two subjects with the Corps of 
Engineers, the U.S. Fish and Wildlife Service, and other agencies. It 
organized several basinwide conferences to talk with key stakeholders 
throughout the basin and held dozens of internal negotiation sessions 
to develop the following recommendations in November 1999 (Appendix 
A).*
---------------------------------------------------------------------------
    * The appendixes have been retained in subcommittee files.
---------------------------------------------------------------------------
    The recommendations made by MRBA included operating criteria which 
would retain approximately two million more acre-feet of water in the 
reservoirs and avoid back-to-back years of minimum service navigation 
in the lower river in another drought of the duration and intensity as 
the one that hit the Missouri River Basin in the late-1980s.
    In terms of Endangered Species Recovery, MRBA recommended the 
following:
    1. Habitat: MRBA supported a much more aggressive approach to 
habitat acquisition and enhancement activities in the basin. There are 
several good programs currently in place to do this, such as the 
Missouri River Fish and Wildlife Mitigation Project, but they need to 
be greatly enhanced with expanded authorities and funding.
    2. Monitoring: MRBA urged the immediate establishment of a Missouri 
River monitoring program. Such a program would determine if species 
recovery efforts are on track, thus saving money in the long run.
    3. Recovery Committee: MRBA recommended the formation of a Recovery 
Committee that would allow the basin's stakeholders to participate in 
river management decisions. Such a committee would help basin 
stakeholders work more effectively with the federal agencies on 
recovery issues and facilitate the concept of adaptive management to 
the river system.
    4. Flows: MRBA recommended that the Corps run a trial spring rise 
out of Fort Peck Reservoir to measure the benefits to the pallid 
sturgeon, least terns, and piping plovers in the 188 mile stretch of 
river between Fort Peck Dam in Montana and Lake Sakakawea in North 
Dakota. It also recommended that the Recovery Committee continue to 
investigate the success and adverse impacts of flow adjustments out of 
Gavins Point Dam to benefit the fish and wildlife in the lower river.
    5. Other: MRBA recommended unbalancing the water releases from the 
upper three reservoirs to benefit sport fisheries, recreation, and 
endangered species; developing a mechanism to determine how to 
equitably distribute the pain and benefits of future depictions 
throughout the basin; and releasing excess summer and fall storage to 
meet the needs of downstream uses.
    All MRBA member states except Missouri supported this November 1999 
proposed plan. The tribes abstained from voting, and the state of 
Missouri said it could not support certain elements of the plan.
    At the same time that MRBA finished its work on the agreement, the 
U.S. Fish and Wildlife Service was in Section 7 consultation with the 
Corps of Engineers on the Corps' existing operations of the Missouri 
River. This was followed by the publication of the Fish and Wildlife 
Service's Final Biological Opinion. The Service generally endorsed 
MRBA's recommendations, but it concluded that a more aggressive 
approach was needed to avoid jeopardy to the three threatened and 
endangered species in the basin--the least tern, the piping plover, and 
the pallid sturgeon. Specifically, it said that changes to the flows 
below Gavins Point Dam in the lower river were essential to the 
recovery of these species.
    Then, in August 2001, the Corps released its Revised Draft 
Environmental Impact Statement (EIS) that contained six possible 
alternatives, one of which was the current water control plan. The 
Modified Conservation Plan (MCP) alternative was similar to MRBA Plan. 
The four other alternatives were modifications of the MCP plan with 
various levels of downstream spring rises and low summer flows added to 
it.
    In February 2002, MRBA decided to expand its November 1999 
recommendations in order to avoid what the Fish and Wildlife Services' 
Biological Opinion determined would lead to a jeopardy opinion. 
Specifically, MRBA recommended that the Corps implement a demonstration 
project which would increase spring releases from Gavins Point Dam by 
15,000 efs above full navigation flows approximately once every third 
year, when additional downstream flooding risks are minimal. MRBA also 
recommended that as part of the demonstration project, the Corps should 
reduce flows in the lower river to minimum navigation service levels 
for two-and-a-half months each summer. The demonstration project should 
be conducted only if certain criteria, such as restrictions on the use 
of water from the Kansas River Reservoir system, are met. These 
restrictions and limitations are outlined further in the letter in 
Appendix B. MRBA suggested that the demonstration project continue for 
roughly three cycles of the spring rise, or approximately ten years. If 
the flow changes appear at the end of that time to help recover the 
basin's threatened and endangered species while minimizing impacts to 
river users, then the Corps should consider maintaining these flow 
changes as part of its new Master Manual.
    Kansas, Montana, Nebraska, North Dakota, South Dakota, and Wyoming 
supported these new recommendations. The state of Missouri opposed 
them. The state of Iowa also opposed these changes while reiterating 
its support for MRBA's original November 1999 recommendations. The 
Tribes again abstained from voting. The Tribes requested that the 
revised Master Manual include a general operations plan for mitigation 
of environmental damages due to the fluctuation of water levels 
proposed by the Corps' Revised Draft Environmental Impact Statement 
alternatives. The Tribes are concerned that unbalanced water levels in 
the upper flood control system promote bank erosion and expose cultural 
resources to environmental damage.
    The Corps of Engineers provided considerable support and 
encouragement to assist MRBA with four basinwide stakeholder meetings 
and many negotiation sessions on proposed Master Manual changes. MRBA's 
goal was to provide comprehensive recommendations that would recover 
the basin's threatened and endangered species while minimizing adverse 
impacts to river users. Now the Corps must decide upon and announce a 
new Preferred Alternative for the Missouri River. Those of us in the 
basin have been waiting with varying degrees of patience for thirteen 
years to hear how the Corps intends to manage the Missouri River for 
the next several decades. The basin was assured repeatedly that the 
Corps would announce a new Preferred Alternative by the end of May 
2002. However, more than a month has passed since that deadline and the 
Corps has not announced its decision. We are concerned that continued 
delays in announcing the new Preferred Alternative may prevent the 
implementation of the revised Master Manual by the 2003 deadline.
    Regardless of which Preferred Alternative is ultimately selected, 
we still need accurate scientific data to assist in the management of 
the river. MRBA would like to see Congress authorize and appropriate 
funds for a comprehensive Missouri River monitoring program, which will 
be an important step towards encouraging cooperative scientific 
decision-making approaches to managing the Missouri River. MRBA has 
long supported the need for monitoring in our basin and stands ready to 
assist the Senate Energy and Natural Resources Water and Power 
Subcommittee as monitoring bills are drafted and moved through 
Congress.
    I thank you for the opportunity to provide testimony to this 
hearing, and please let me know if MRBA can be of further assistance.
                                 ______
                                 
            Statement of the American Farm Bureau Federation
    The American Farm Bureau Federation is a 5.1 million member general 
farm organization representing farmers and ranchers in all 50 states 
and Puerto Rico. American Farm Bureau policy, as approved by our 
delegates supports retention of the current Water Control Plan for the 
Missouri River. Our policy states:

        We believe the Corps should maintain the current Master Water 
        Control Manual as is and should nor deviate from the standards 
        set forth therein. We are opposed to the Corps requiring a 
        spring rise on the Missouri River.

    This policy reflects concern about the potential for flooding of 
agricultural lands below Gavins Point and the harm to navigation on the 
Missouri and Mississippi Rivers if a ``spring rise'' is allowed.
    Altering the management of the Missouri River by allowing for a 
``Spring rise'' would not only affect farmers in downstream states 
(Missouri, Nebraska, Iowa and Kansas) by potentially flooding their 
land, but also affect barge traffic movements on the Missouri and 
Mississippi Rivers. Without proper management of river flows over the 
course of the year, transportation could be hampered by insufficient 
water levels on the Missouri River and on the Mississippi River between 
Memphis, Tennessee, and Baton Rouge, Louisiana.
    A ``spring rise'' would have significant harmful impacts on 
productive agricultural lands as well as the movement of agricultural 
commodities and input supplies along the Missouri and Mississippi 
Rivers. Flooding and impaired drainage would impact over 1 million 
acres of productive farmland. River transportation for the efficient 
and cost-effective transportation of agricultural commodities is of 
paramount importance to the agricultural economy of the Midwest and our 
nation. The prices farmers receive for commodities will decrease and 
the prices they pay for inputs such as fertilizer will rise if barge 
transportation is disrupted and more expensive transportation modes are 
utilized. Efficient and effective transportation is one of the United 
States' major competitive advantages in world grain trade.
    The National Academy of Sciences, in its recent report on the 
Missouri River, called for a moratorium on changes to the manual while 
the Corps, in consultation with other agencies and stakeholders. 
including landowners and agriculture, works to improve the Missouri 
River environment.
    In May 2002 the Eighth Circuit Court of Appeals in St. Louis stayed 
lower court rulings that prohibited the Corps of Engineers from 
managing water levels on the river according to the current manual. 
This action allows the Corps to maintain consistent water levels for 
the river for navigation and recreation.
    The Corps of Engineers is to be commended for its persistence in 
seeking to find a balance among the many interests in the Missouri 
basin. Measures that increase flooding or reduce the efficiency of 
navigation should not be adopted. Flood protection and reliable 
commercial navigation on our waterways will be maintained by continuing 
to operate under the Current Water Control Plant for the Missouri 
River.
                                 ______
                                 
     Statement of Dave Koland, Deputy Manager, Garrison Diversion 
                          Conservancy District
    Mr. Chairman and members of the Subcommittee, my name is Dave 
Koland, Deputy Manager for the Garrison Diversion Conservancy District 
in North Dakota. Thank you for this opportunity to provide testimony on 
this issue, which is critical to the State of North Dakota. My message 
is the same distinct and unwavering one that we in North Dakota and 
most other Missouri River basin states have been stating for many 
years. The Missouri River Master Manual (Master Manual) of the U.S. 
Corps of Engineers must be changed to meet the contemporary needs of 
the basin.
    The Flood Control Act of 1944 promised many benefits and for many, 
those ideas were realized. The problem is that time and uses have 
changed the need for those benefits.
    Power generation, flood control and water supply benefits have 
occurred as originally envisioned and have provided hundreds of 
millions of dollars in benefits and prevented many personal losses.
    On the other hand, irrigation development and downstream Missouri 
River navigation have not even accomplished a small percentage of what 
was originally envisioned. North Dakota was promised in excess of one 
million acres of federal irrigation to offset our loss of more than 
500,000 acres of prime bottom land. That level of irrigation was never 
realized and, in fact, more acres of irrigated land were flooded by the 
dams in North Dakota than have ever been developed through the Pick-
Sloan Plan. The Dakota Water Resources Act of 2000 further reduced the 
acreage of potential irrigation to less than 76,000 acres. That 
legislation also recognized the need for water in Eastern North Dakota, 
additional municipal water for rural North Dakotans and fish and 
wildlife and recreation benefits. We need to be assured that North 
Dakota's sovereign rights to all of our natural resources are 
recognized by the Corps and Bureau of Reclamation. This should be 
spelled out in the new Master Manual.
    Downstream navigation benefits were projected by the Corps to 
exceed 20 million tons of goods annually. The present navigation only 
moves an insignificant 1.5 million tons of goods annually.
    In contrast, recreation benefits in the upper basin have far 
exceeded the 1944 projections. Water-based recreation in North Dakota 
today is big business along the Missouri River. Lakes Sakakawea and 
Oahe provide diverse recreation opportunities to residents and 
nonresidents alike. The Corps estimated the national economic benefits 
derived from recreation at $84.7 million per year, while the total 
navigation benefits were only $6.9 million. That is a significant 
difference and only emphasizes how poor the Corps' projections 
originally were and how times have changed in the way the public uses 
our water resource and allocates their recreational dollars.
    The present Master Manual is out of date and needs to be changed. 
It predates federal laws such as NEPA, the Threatened and Endangered 
Species Act, the Clean Water Act and many other laws which Congress has 
enacted to protect our natural resources.
    The five alternatives that the Corps is considering to the old 
Master Manual are a step in a new direction. All five conserve water 
during drought periods, which improves our fish survival and provides 
our recreation benefits. It also increases federal hydopower 
generation. During the late 1980s, North Daktoa experienced a severe 
drought. If any one of the new alternatives had been in place, Lake 
Sakakawea would have been four to six feet higher, thus, improving our 
fish habitat, more efficient hydopower generation and an overall 
benefit to our economy along the Missouri River.
    Over the years, the Missouri River Basin Association (MRBA) has 
worked long and hard to reach agreement on changes to the Master 
Manual. In November 1999, seven of the eight member states agreed to 
support a revised plan, which included drought conservation measures 
for the mainstem reservoirs, increased monitoring and the formation of 
a recovery committee to facilitate the concept of adaptive management 
of the river system. This plan is similar to the Corps' Modified 
Conservation Plan alternative. In February 2002, the MRBA agreed to 
expend its November 1999 recommendations in light of the U.S. fish and 
Wildlife Service's recommendation that spring release below Gavins 
Point be increased to help recover certain threatened and endangered 
wildlife species. This is similar to the Corps' GP 15/28 alternative. 
It is important to recognize that six of the eight states supported 
this recommendation.
    We, in North Dakota, are extremely concerned that the Corps has 
chosen to not identify a preferred alternative. This only confuses the 
public and other agencies as to the Corps' intent. We disagree with the 
Corps ``go slow'' approach. It is bureaucratic and non-responsive to 
everyone's needs. Any one the alternatives, if implemented, would be a 
significant improvement over the current Master Manual.
    All states in the Basin depend upon the river and reservoirs, and 
North Dakota relies on a responsible operation of those waters for our 
future. The future needs were evaluated by the MRBA and, after 
considerable deliberation, most agreed to support the ultimate 
recommendation. As good neighbors, both the upstream and downstream 
states must work together to assure that the good of the people is met 
and none of us suffer at the hands of another in the management of this 
important resource.
    In conclusion, I must strongly recommend that the Corps of 
Engineers stick to its current schedule for completing the Master 
Manual revision process. All states in the Basin must be able to 
realize the positive benefits and also suffer the negative ones during 
times of drought and low water. Implementation of any of the five 
alternatives would be an economic improvement to our depressed economy. 
This action needs to happen now so that our citizens, both old and 
young, can enjoy the fruits of work.
    The five main stem dams authorized in the 1944 Flood Control Act 
were constructed in 18 years. Why should revisions to the Master Manual 
take more than 14 years. It is time to say enough and get about the job 
of meeting the contemporary water needs of the entire Basin and not 
just those of a few. Thank you for your time Mr. Chairman.
                                 ______
                                 
        Statement of John Steele, President, Oglala Sioux Tribe
    Good Morning Mr. Chairman:
    Thank you for the opportunity to present testimony on the proposed 
management plan for the Missouri River. The Missouri River and its 
surrounding shores are of extreme importance to the Oglala Sioux Tribe.
    The Oglala Sioux Tribe was a party to the Fort Laramie Treaty of 
April 29, 1868. This Treaty established the Great Sioux Reservation and 
recognized that the Oglala Sioux Tribe and the other signatory tribes 
held recognized legal title to the following area:

        Commencing on the east bank of the Missouri River where the 
        forty-six parallel of north latitude crosses the same, thence 
        along low-water mark down said east bank to a point opposite 
        where the northern line of the State of Nebraska strikes the 
        river, thence west across said river, and along the northern 
        line of Nebraska to the one hundred and fourth degree of 
        longitude west from Greenwich, thence north on said meridian to 
        a point where the forty-sixth parallel of north latitude 
        intercepts the same, thence due east along said parallel to the 
        place of the beginning, and in addition thereto, all existing 
        reservations on the east bank of the said river shall be, and 
        the same is, set apart for the absolute and undisturbed use and 
        occupation of the Indians herein named . . .

    Also, the Oglala Sioux Tribe currently holds unextinguished 
aboriginal title to the Great Sioux Reservation (including the entire 
Missouri River within South Dakota) based on its use and occupation of 
the territory since time immemorial.
    While the boundaries of this Great Sioux Reservation have never 
been diminished, the United States has chosen to flagrantly violate our 
treaty rights in a number of ways. First, in 1877, it illegally 
confiscated the western end of the reservation, including the 7.3 
million areas in and around the Black Hills. Then, former U.S. 
President Benjamin Harrison purported to claim U.S. ownership of an 
additional 18 million acres of Great Sioux Reservation land through the 
use of an illegal 1890 Presidential Proclamation, which wrongfully 
alleged that the Sioux had ceded this land to the United States even 
though no such legal session had occurred. Then, in 1944, the United 
States placed the Army Corps of Engineers in charge of constructing six 
dams on the main stem of the Missouri River under the Missouri River 
Pick-Sloan Program. Four of these dams, the Lake Oahe, Lake Sharpe, 
Lake Francis Case and Lewis and Clark are located within the Great 
Sioux Reservation. All four were constructed in blatant disregard for 
the Fifth Amendment rights of the Oglala Sioux Tribe and the other 
tribal signatories of the 1868 Treaty. To make matters worse, the Corps 
has maintained 123 acres of shoreline around these four dams. These 
areas have been open to the free use and enjoyment of the American 
public even though both federal and private studies have documented 
that these properties contain religious and cultural items and human 
remains which are the property of the Oglala Sioux Tribe and the other 
1868 Treaty tribes. All are items are protected by the provisions of 
the 1868 Treaty and the Native American Graves Protection and 
Repatriation Act.
    As if this were not bad enough, with the enactment of the Water 
Resources Development Act of 2000 (WRDA 2000), the United States 
initiated the transfer and long term lease of in excess of 90,000 acres 
of shoreline from the Army Corps of Engineers to the State of South 
Dakota and the transfer and long term lease of addition lands around 
the four dams to the Lower Brule and Cheyenne River Sioux Tribes 
without the consent of the Oglala Sioux Tribe. Because this transfer is 
in flagrant disregard for our treaty rights, as well as numerous 
federal environmental, historic preservation and cultural protection 
statutes, the Oglala Sioux Tribe has filed suit in the U.S. District 
Court for the District of Columbia to enjoin these transfers. This case 
is on going.
    Any adjustments to the levels of the Missouri River will have a 
direct impact on these shoreline properties and the items they contain. 
For this reason, the Oglala Sioux Tribe and the other tribal 
signatories to the 1868 Treaty must be a party to any decisions which 
impact the levels of the Missouri River at those locations.
    The Oglala Sioux Tribe has reviewed the Master Plan proposed by the 
Army Corps and objects strongly to a number of its proposals. Our 
objections and the justification for them are detailed in the following 
text entitled ``Comments of the Oglala Sioux Tribe Missouri River 
Master Manual RDEIS.''
    On behalf of the Oglala Sioux Tribe, I would like to thank you for 
this opportunity to present our views on this important issue.
 comments of the oglala sioux tribe missouri river master manual rdeis
    The Oglala Sioux Tribe rejects the Master Manual revision and 
update and the RDEIS. Both propose to make irretrievable commitments to 
(1) navigation in the lower basin, (2) maintenance of reservoir levels 
in the upper basin and (3) fish, wildlife and endangered species 
throughout the upper and lower basins. These commitments are violations 
of the constitutional, civil, human and property rights of the Tribe.
    The RDEIS improperly treats Indian water rights as follows:

        The Missouri River basin Indian tribes are currently in various 
        stages of quantifying their potential future uses of Mainstem 
        System water. It is recognized that these Indian tribes may be 
        entitled to certain reserve or aboriginal Indian water rights 
        in streams running through and along reservations. Currently, 
        such reserved or aboriginal rights of tribal reservations have 
        not been quantified in an appropriate legal forum or by compact 
        with three exceptions. . . . The Study considered only existing 
        consumptive uses and depletions, therefore, no potential tribal 
        water rights were considered Future modifications to system 
        operation, in accordance with pertinent legal requirements, 
        will be considered as tribal water rights are quantified in 
        accordance with applicable law and actually put to use. Thus, 
        while existing depletions are being considered, the Study 
        process does not prejudice any reserved or aboriginal Indian 
        water rights of the Missouri River basin Tribes. (PDEIS 3-64)

    This treatment violates the trust responsibility of the United 
States to the Oglala Sioux Tribe and other 1868 Treaty tribes. The 
Oglala Sioux Tribe was a party to the Treaties of 1851 and 1868. The 
1868 treaty established the Great Sioux Reservation from the easterly 
bank of the Missouri River throughout all of the area to the West that 
is now embraced by the State of South Dakota. The area was set aside by 
the Treaty of 1868 for the exclusive, ``undisturbed use and 
occupation'' of the 1868 Treaty tribes. The Oglala Sioux Tribe reserved 
rights to the use of water in the Missouri River, its tributaries and 
its aquifers for present and future generations from time immemorial. 
The water rights are prior and superior to all subsequent uses of 
water. The water rights were reserved by the Tribe for all purposes 
necessary for the pursuit of the arts of civilization. The water rights 
of the Oglala Sioux Tribe are not federal rights, reserved by the 
United States, but were reserved by our forefathers in our Treaties for 
our use. Our water rights are not subject to sensitivity, primary and 
secondary purposes nor are they limited to minimal amounts necessary 
for the purposes of a federal reservation of water rights for a 
national forest, a national monument, an Air Force Base or other 
federal reservations.
    The Oglala Sioux Tribe proclaims its continued dominion over all of 
the lands within the boundaries of the Pine Ridge Indian Reservation 
and throughout the Great Sioux Reservation of 1868 as reserved from 
time immemorial including but not limited to rights, jurisdictions, 
privileges, prerogatives, liberties, immunities, and temporal 
franchises whatsoever to all the soil, plains, woods, wetlands, lakes, 
rivers, aquifers, with the fish and wildlife of every kind, and all 
mines of whatsoever kind within the said limits; and the Tribe declares 
its water rights to the amounts necessary to supply water for 
irrigation and all irrigable acreage within the boundaries of the Great 
Sioux Reservation; and all municipalities, commercial and industrial 
purposes and rural homes with water for all future persons; to supply 
livestock of every kind on the ranges having an annual water 
requirement necessary for that purpose; and for other purposes, such as 
oil, gas, coal or other minerals, forests, recreation, and all other 
purposes consistent with the arts of civilization and the maintenance 
of a permanent and viable homeland as guaranteed by the 1868 Treaty.
    The RDEIS is also supported by a flawed biological opinion, which, 
among other things, failed to consider the proper analysis of Indian 
water rights. The biological opinion failed to give any consideration 
to the water rights on the Oglala Sioux Tribe in the definition of the 
environmental baseline. Even the Working Group on the Endangered 
Species Act and Indian Water Rights, Department of Interior, published 
recommendations for consideration of Indian water rights in Section 7 
Consultation, for undertakings such as the Master Manual, as follows:

        The environmental baseline used in ESA Section 7 consultations 
        on agency actions affecting riparian ecosystems should include 
        for those consultations the full quantum of (a) adjudicated 
        (decreed) Indian water rights, (b) Indian water rights 
        settlement act, and (c) Indian water rights otherwise partially 
        or fully quantified by an act of Congress. . . . Biological 
        opinions on proposed or existing water projects that may affect 
        the future exercise of senior water rights, including 
        unadjudicated Indian water rights, should include a statement 
        that project proponents assume the risk that the future 
        development of senior water rights may result in a physical or 
        legal shortage of water. Such shortage may be due to the 
        operation of the priority system or the ESA. This statement 
        should also clarify that the FWS can request reinitiation of 
        consultation on junior water projects when an agency requests 
        consultation on federal actions that may affect senior Indian 
        water rights.

    The Working Group recommendations improperly failed to address 
unadjudicated Indian water rights, such as those in the Missouri River 
Basin. Not even this flawed and minimal guidance was taken into 
account.
    It is unthinkable that the United States would proceed with water 
resource activities, whether related to endangered species, water 
project implementation or Missouri River operation in the absence of 
properly considering Indian water rights that are not part of an 
existing decree--presuming, in effect, that the eventual quantification 
of Indian water rights will be so small as to have a minimal impact on 
the operation of facilities in a major river, such as the Missouri 
River, or so small as to be minimally impacted by assignment of 
significant flow to endangered species, navigation and other state 
purposes. The flows required to fulfill or satisfy Oglala Sioux water 
rights are, in fact, neither small nor minimal but are significant. For 
the biological opinion or the RDEIS to proceed without properly 
addressing the magnitude of Indian water rights is a severe breach of 
trust responsibilities by the United States and its agents.
    The approach of the United States and its agent in the biological 
opinion and RDEIS is clear. The concept is to allow sufficient time to 
pass after a federal decision on the future operations of the Missouri 
River on behalf of the states, endangered species and other special 
interests to leave the Oglala Sioux Tribe without a will for political 
or judicial remedy:

        ``After thirty-five years of actual possession, after twenty-
        five years of possession solemnly guaranteed . . ., after 
        innumerable leases and releases, mortgages and devises, it was 
        too late to search for flaws in titles. Nevertheless something 
        might have been done to heal the lacerated feelings and to 
        raise the fallen fortunes . . .'' \1\
---------------------------------------------------------------------------
    \1\ Sir Thomas Macaulay, 1848, The History of England, Penguin 
Classics, pp 149-151.

    While the foregoing was written in England from a Nineteenth 
Century perspective about the colonization of Ireland and the taking of 
native Irish land by the English, it effectively describes federal 
policy toward Indian water rights in the Missouri River Basin.
    The unwritten policy of the Corps of Engineers and the U.S. Fish 
and Wildlife Service in the RDFIS and biological opinion, respectively, 
is to ignore Indian water rights in the Missouri River Basin and to 
await the outcome of extrajudicial and immoral state adjudication 
processes, such as the recent Arizona Supreme Court opinion (Issues 3) 
on the quantification of Indian water rights. The arguments against 
Indian water rights quickly unfold in the opinion as set forth below:

        ``. . . There can be little doubt that the PIA standard works 
        to the advantage of tribes inhabiting alluvial plain or other 
        relatively flat lands adjacent to stream courses. In contrast, 
        tribes inhabiting mountainous or other agriculturally marginal 
        lands are at a severe disadvantage when it comes to 
        demonstrating that their lands are practicably irrigable. . . 
        .'' citing Eluid Martinez v. Lewis (861 P 2nd 253).

        ``. . . Another concern with PIA is that it forces tribes to 
        pretend to be farmers in an era when ``large agricultural 
        projects . . . are risky, marginal enterprises. This is 
        demonstrated by the fact that no federal project planned in 
        accordance with the Principles and Guidelines . . . has been 
        able to show a positive benefit/cost ratio in the last decade 
        (1981 to 1991). . . .''

        ``. . . Limiting the applicable inquiry to PIA analysis not 
        only creates a temptation for tribes to concoct inflated, 
        unrealistic irrigation projects, but deters consideration of 
        actual water needs based on realistic economic choices . . . 
        they may be irrigable academically, but not as a matter of 
        practicality. . . .''

        ``. . . The PIA standard also potentially frustrates the 
        requirement that federally reserved water rights be tailored to 
        minimal need. . . . The court's function is to determine the 
        amount of water necessary to effectuate this purpose, tailored 
        to the reservation's minimal need. We believe that such a 
        minimalist approach demonstrates appropriate sensitivity and 
        consideration of existing water user's water rights, and at the 
        same time provides a realistic basis for measuring tribal 
        entitlements . . .'' \2\
---------------------------------------------------------------------------
    \2\ 39 P. 3rd (Ariz. November 26, 2001).
---------------------------------------------------------------------------
    Perhaps hostile state courts can find specious mechanisms for 
denigrating Indian water rights in the Missouri River Basin in the 
manner proposed by the Arizona Supreme Court, thereby justifying the 
treatment of Indian water rights by the Corps of Engineers and the U.S. 
Fish and Wildlife Service and the RDEIS and the supporting biological 
opinion. The Oglala Sioux Tribe strongly disagrees and condemns the 
Master Manual and the supporting NEPA compliance documents. We ask that 
the Congress of the United States honor the 1868 Treaty, and the vested 
property rights that the treaty created under the Fifth Amendment.
                                 ______
                                 
       Statement of William G. Schubert, Maritime Administrator, 
                      Department of Transportation
    Mr. Chairman and Members of the Subcommittee, thank you for the 
opportunity to submit testimony on water management issues on the 
Missouri River and the status of efforts to revise the Missouri River 
Master Water Control Manual.
    MARAD has been actively engaged in discussions with the Army Corps 
of Engineers (Corps) and other stakeholders for many years on the 
effort by the Corps to consider changes in the way in which it operates 
the Missouri River. The alternatives discussed in the Revised Draft 
Environmental Impact Statement (RDEIS) may have adverse impacts on 
waterway commerce on the Missouri River.
    The RDEIS lists five alternatives to the Current Water Control 
Plan. Four of the alternatives would involve an increase in spring 
flows in order to protect the Pallid Sturgeon, Interior Least Tern, and 
the Piping Plover. In some years, this proposed ``spring rise'' could 
reduce the amount of water in the main stem reservoirs that is 
potentially available later in the year to supplement releases from 
Gavins Point to support commercial navigation.
    The fifth alternative would involve both a spring rise and a split 
navigation season. For a period of time during the early summer, the 
river would be drawn down. While the regulation of the navigation pools 
on the Upper Mississippi River for environmental enhancement has been 
successfully implemented in a similar fashion in recent years, there is 
a significant difference between the two programs. The drawdown of the 
navigation pools on the Upper Mississippi River was designed so as not 
to have a detrimental effect on commercial navigation. The navigation 
pool drawdowns were limited to certain river stages and water flow 
rates, and problem areas in the navigation channel were dredged to 
ensure that towboats could continue to operate during the drawdowns. By 
contrast, the fifth alternative in the Missouri River RDEIS would lead 
to a cessation of commercial navigation during the drawdown.
    Thank you for the opportunity to provide a statement for the record 
on this issue.

                                    
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