Multipleuse Water Resources Development Versus Natural River Functions: Can the Wsra and Wrda Coexist on the Missouri River?

• Publication year: 2021
• Citation: Vol. 83

83 Nebraska L. Rev. 362. MultipleUse Water Resources Development Versus Natural River Functions: Can the WSRA and WRDA Coexist on the Missouri River?

362

John H. Davidson(fn*)

MultipleUse Water Resources Development Versus Natural River Functions: Can the WSRA and WRDA Coexist on the Missouri River?

TABLE OF CONTENTS

I. Introduction ....................................................... 363
II. The Missouri River and its Development ............................ 364
A. The Natural River .............................................. 364
B. The Developed River ............................................ 366
III. Flow Management Emerges as the Critical Issue on the
Missouri River ................................................... 367
A. The PostDevelopment River ...................................... 367
B. Emergence of a New Process:
The Master Manual .............................................. 368
C. Recognition of the Role of Sediment ............................ 371
D. Bank Stabilization and the Remnant Stretches ................... 372
IV. Legislating Bank Stabilization on the "59Mile
Stretch" .......................................................... 376
A. WRDA 1976: Section 32 Projects ................................. 376
B. The WSRA' General Provisions ................................... 379
C. The WSRA and the Management Duties of Federal
Agencies ....................................................... 381
D. The Umbrella Study ............................................. 384
E. WSRA Designation of the "59Mile Stretch" as the
Missouri National Recreational River ........................... 389
1. Designation ................................................. 389
2.Administration of the Missouri National
Recreational River ........................................... 390
3. The Bank Stabilization Compromise ........................... 390
4.Bank Stabilization Conditioned Upon Voluntary
Transfers of Private Land .................................... 391
F. Section 33 of the Water Resources Development Act
of 1988 ........................................................ 392

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V. Conclusion: The WRDAWSRA Tension on the River
Today ............................................. 393

I. INTRODUCTION

Because of the scale of dam construction that has taken place in the United States, society now has before it a set of choices regarding the kind of river characteristics we desire. Like it or not, we control the destiny of these streams. Traditionally, river managers have focused on issues of engineering efficiency, sometimes to the neglect of the instream environmental values. The engineering matters remain a focus of management, but our society must also choose whether or not to manage rivers for their intrinsic environmental values. We can consciously choose to manage our rivers for certain anticipated environmental consequences, or we can intentionally choose to accept the environmental responses as they haphazardly occur.(fn1)

In 1986, the United States Congress designated the Upper Mississippi River System as both a "nationally significant ecosystem" and a "nationally significant commercial navigation system."(fn2) It then instructed that "[t]he system shall be administered and regulated in recognition of its several purposes."(fn3) This ambivalence in river legislation reflects a tension that exists on many rivers in the United States. On the one hand, Congress invests heavily in the engineering of a river, while, on the other, declaring its desire to protect, in some way, the same river' natural features. This Article describes a case in which an attempt to balance river protection and river development is being played out on one 59mile stretch of the longest river in the United Statesthe Missouri. The goal here is to explore several of the legal boundaries between water resources "development" and river protection and restoration.

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Historically, the United States has aggressively built, on its own, navigation channels, harbors and ports, flood control structures, levees, irrigation projects, municipal water supplies, hydroelectric plants, and recreation facilities. In this role as the principal developer of water resources projects, it has created large development agencies, foremost among which is the U.S. Army Corps of Engineers ("Corps"). The overall result is that few rivers, if any, are undeveloped, and the resulting governmentbuilt development projects dominate. In recent decades, the sponsoring legislation for these water projects is found in the comprehensive "Water Resources Development Acts," which emerge from the Congress at typically twoyear intervals. At the same time, and of a clearly smaller percentage when measured by the relative commitment of financial resources, Congress has sponsored

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projects that seek to protect natural river features, including in some cases ecosystem functions. The formats for such efforts are diverse, and may include National Wildlife Refuges, National Parks, National Monuments, specific restoration projects, or designation under the Wild, Scenic, and Recreational Rivers Act; specifically crafted legislation is not uncommon.(fn4)

Intensive engineering projects on rivers lead to conflict with interests that value the natural features and services of a river. As early as 1974 this tension was apparent:

[M]uch of the recent law has been made in situations of conflict between the Government and environmentalists concerned about the adverse effects of a project on a biophysical environment: the flooding of a national park or monument by a reservoir, the channelization of a stream for flood control purposes, the destruction of fish, wildlife and plants when a freeflowing stream is replaced by a reservoir, or the effects of a large plant' intake facilities or its discharges of heated waters.(fn5)

The conflicts inherent in the water resources development process have continued, made more intense by the need to apply the Clean Water Act,(fn6) the National Environmental Policy Act of 1969,(fn7) and the Endangered Species Act of 1973(fn8) to new and existing water projects. In addition, the true impacts of a complex water project on the natural environment often become apparent only after many years. Because the bulk of the existing projects were constructed after World War II, such effects are just now becoming more apparent.

Finally, Congress frequently authorizes development projects and protection projects on the same river without acknowledging the conflict that results from this lack of coordination. By legislating on separate lines, Congress leaves to the agencies, interested citizens, and the courts the task of resolving the tension that Congress itself created. In fact, a considerable part of domestic environmental law is a search for the limits to the development authorizations found in the various Water Resource Development Acts.

II. THE MISSOURI RIVER AND ITS DEVELOPMENT

A. The Natural River

The Missouri River originates on the eastern slope of the Rocky Mountains near Three Forks, Montana, and originally ran an esti

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mated 2,551 miles, since shortened to 2,321 miles.(fn9) Its uniqueness stems in part from the fact that the basin includes arid, semiarid, and humid climates. The basin of the Missouri drains three distinct physiographic areas: the Rocky Mountains, the Interior Plains, and the Interior Highlands.(fn10) Historically, the River was a diverse riverine/floodplain ecosystem of braided channels, riparian lands, chutes, sloughs, islands, sandbars, backwater areas, and natural floodplain communities.(fn11) The River' ecosystem supported diverse populations of native fishes, birds and mammals. At least 160 species of wildlife were resident or migrant to the system, and 156 native fish species lived in the main stem and tributaries.(fn12) The floodplain was extensively forested throughout the basin,(fn13) with wetland, prairies, and sandbar habitats mixed into both the floodplain and the channel.(fn14)

As a classic "large river" the hallmark of the Missouri' ecosystem was the seasonal flooding, which promoted the exchange of nutrients and organisms among habitats:(fn15)

The natural hydrologic cycle of the Missouri River was once characterized by two floods each spring. Water levels and discharges were low in the fall and winter. Temporally, the first flood, or "March rise," was caused by melting snow on the plains and breakup of ice in the main channel and tributaries. The crest of this flood usually flattened as it progressed downstream. The second flood, or "June rise," was produced by the combined runoff from melting snow in the Rocky Mountains augmented by rainfall throughout the basin. This flood generally was the larger of the two.(fn16)

The annual flood pulses were so predictable across time that plants and animals adapted to take advantage of them.(fn17) The exceptional diversity and productivity of the River was linked closely to this hydrologic pattern.(fn18) Closely associated with this pattern of flood pulses

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was the high sediment and nutrient load from overbank flooding carried by the river and from the tributaries, which drain highly erodible, unglaciated soils.(fn19) A constant process of erosion and redeposition, based on interaction between the floodplain and the channels, was thus also central to the River' rich biotic life. As summarized recently by the United States Fish and Wildlife Service, "[r]iverine aquatic habitat, floodplain habitat, biodiversity, and the health of the Missouri River ecosystem was primarily shaped by the timing, variability, and amplitude of the natural hydrograph and the interaction between the river and its floodplain."(fn20)

B. The Developed River

Although Congress had invested sporadically in Missouri River navigation...