[Congressional Record (Bound Edition), Volume 146 (2000), Part 12]
[Senate]
[Pages 16711-16712]
[From the U.S. Government Publishing Office, www.gpo.gov]



                          MISSOURI RIVER RIDER

  Mr. BAUCUS. Mr. President, I rise to join the minority leader and 
others who have expressed strong opposition to section 103 of the 
energy and water appropriations bill, which affects the management of 
the Missouri River.
  From the debate that we've had thus far, you might think that this is 
pretty straightforward. Upstream states against downstream states, in a 
conventional battle about who gets water, how much they get, and when 
they get it.
  I'm not going to kid anybody. That is a big part of the debate. I'm 
from an upstream state. We believe that we've been getting a bad deal 
for years. We want more balanced management of the system. That will, 
among other things, give more weight to the use of the water for 
recreation upstream, at places like Fort Peck reservoir in Montana.
  Under the current river operations, there are times when the lake has 
been drawn down so low that boat ramps are a mile or more from the 
water's edge.
  Our project manager at Fort Peck, Roy Snyder, who does a great job at 
that facility, has talked to me about how much healthier the river 
would be with a spring rise/split season management.
  But it's not just a conventional battle over water. There's more to 
it. A lot more.
  You wouldn't necessarily know that from the text of the provision 
itself. It says that none of the funds made available in the bill:

       . . . may be used to revise the Missouri River Master Water 
     Control Manual when it is made known to the Federal entity or 
     official to which the funds are made available that such 
     revision provides for an increase in the springtime water 
     release program during the spring heavy rainfall and snow 
     melt period in States that have rivers draining into the 
     Missouri River below the Gavins Point Dam.

  That's what the bill says.
  Here's what it does.
  Simply put, it prohibits the Secretary of the Army from obeying the 
law of the land. Specifically, it prohibits the Secretary from 
complying with the Endangered Species Act.
  Let me explain. Like any other Federal agency, the Army Corps of 
Engineers has a legal obligation, under section 7 of the Endangered 
Species Act, to operate in a way that does not jeopardize the existence 
of any endangered species.
  That's just common sense. After all, private landowners have to 
comply with the Endangered Species Act. Why should federal agencies get 
a free pass?
  They shouldn't. The federal government should do its part. That's why 
section 7 is a fundamental part of the ESA. Without section 7, the ESA 
would be unfair to private landowners and, in many cases, would provide 
no protection for endangered species whatsoever.
  Let's turn to the Missouri River. The river provides habitat for 
three endangered species: The pallid sturgeon, the piping plover, and 
the least interior tern.
  Accordingly, in developing its new master manual, which will govern 
the operation of the river, the Corps is legally required to propose a 
management approach that protects the habitat for these three species.
  Now, under section 7, when there's a pretty good chance that a 
federal agency's actions might jeopardize a species, the agency must 
consult with the Fish and Wildlife Service.
  That's the right approach. When it comes to the nuts and bolts of 
running a river system, the Corps is the expert. But, when it comes to 
the nuts and bolts of protecting a species, the Fish and Wildlife 
Service is the expert. No question.
  So, as it is legally required to do, the Corps has consulted with the 
Fish and Wildlife Service, initially under what's called the ``informal 
consultation process.''
  There have been problems. Serious problems.
  When the Corps issued the first Environmental Impact Statement for 
the Master Manual, back in 1994, the Fish and Wildlife Service issued a 
draft opinion saying that, in it's judgment, the proposed operation 
would jeopardize the three species.
  In 1998, the Corps issued a revised EIS. Once again, the Fish and 
Wildlife Service said that, in it's judgment, the proposed operation 
still would jeopardize the three species.
  Then we made progress. On March 30 of this year, the Corps announced 
that it was entering into a formal consultation with the Fish and 
Wildlife Service and would rely on the Service's biological judgment to 
propose an alternative that does not jeopardize the species. In other 
words, it would fully comply with the ESA.
  We expect the Fish and Wildlife Service to issue it's biological 
opinion any day now. That opinion will explain, based on the best 
scientific information available, how to provide the needed protection 
for the recovery of the 3 endangered species on the river.
  Nobody outside the agency knows for sure what the biological opinion 
will say. But, based on all of the scientific discussion that's gone on 
so far, there's a good likelihood that it will require more releases of 
water in the spring, to maintain the instream flows necessary to 
provide habitat for the sturgeon, plover, and tern.
  That probably will mean fewer releases in the summer which, some will 
argue, could affect barge traffic downstream.
  That's where section 103 of the bill comes in. It prevents the Corps 
releasing more water in the spring.
  In other words, if the biological opinion comes out the way most 
folks expect it to, section 103 prevents the Corps from complying with 
the Endangered Species Act.
  So, again, this debate is not just about the allocation of water 
between upstream and downstream states.
  The debate is also, fundamentally, about whether, in one fell swoop, 
we should waive the application of the Endangered Species Act to one of 
the largest rivers in the country. The river, I might add, that is the 
wellspring of the history of the American west.
  I suggest that the answer is obvious.
  We should not.
  Mr. President, let me also respond to a point that some of the 
supporters of section 103 have made.
  They argue, in essence, that we've lost our chance. Sort of like the 
legal notion of estoppel. This provision has been in the bill for 
several years, they argue. We've never tried to delete it before.
  So, I suppose they're trying to imply, it's somehow inappropriate for 
us to raise it now.
  This argument is a red herring. A distraction.
  Up until now, we've never been in a situation in which there was an 
impending biological opinion under the endangered Species Act. So, by 
definition, the earlier provisions did not override the Endangered 
Species Act.
  What's more, in the absence of a biological opinion, there was no 
real likelihood that the Corps would implement a spring rise.
  So the provision was theoretical. Symbolic. It had absolutely no 
practical effect.
  Now, Mr. President, it most certainly will. That's why we are raising 
the issue.
  One final point. If we pass section 103, and the Corps is directed to 
operate the system in violation of the Endangered Species Act, there 
will be a lawsuit.
  That will have two effects. First, it will slow things down. Second, 
it may well put us in the position of having the river operated, in 
effect, by the courts rather than by the Corps.
  We've seen this happen along the Columbia Snake River system, and 
it's not been an easy experience for anyone.
  In closing, I suggest that there's a better way. After all, once a 
biological opinion is issued, there will be an opportunity for public 
comment, so this decision will not be made in a vacuum.

[[Page 16712]]

  In fact, there have been countless public meetings and forums on the 
revision of the Master Manual over the years. And that's as it should 
be.
  So let's not create a special exemption for the Corps. Let's require 
them to abide by the same law that we apply to everybody else.
  Let's allow the regular process to work. Let's allow the agencies to 
continue to consult and figure out how to strike the balance that's 
necessary to manage this mighty and beautiful river: for upstream 
states, for downstream states, and for the protection of endangered 
species; that is, for all of us.

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