Federal Lawsuit Decision Threatens Future Missouri River Restoration and the Fate of the Endangered Species Act
by Alicia Claire Lloyd
Controlling flood risk requires common sense placement and maintenance of agricultural levees and limits on development in the natural floodplain. The recent decision in federal claims court in Ideker Farms et. al v. United States came as a blow to restoration advocates who disagree with the plaintiffs’ claim that the Corps’ restoration efforts on the Missouri River caused them to experience flood damages. The judge ruled that damages occurred across four states – Missouri, Kansas, Iowa, and Nebraska, but a second trial will begin in October to determine the dollar amount of those impacts. The lawsuit was filed in 2014 and alleged that the restoration efforts as part of the Missouri River Recovery Program were responsible for private flooding and ultimately, a “takings” of private property.
Discouragingly, Missouri’s own US Representative, Sam Graves, whose district spans the northern length of the state, is spearheading efforts to stall restoration activities by defunding the program.
In fact, it was the failure to complete the 1944 Pick Sloan plan which is responsible for much of today’s lower river woes. The Pick Sloan plan is best known for the huge upper Missouri River reservoirs built under its guidance. However, the plan had a critical lower river component calling for levee setbacks which was never fully completed. If the plan had been followed, the river would have had room to expand during natural flood pulses and flooding along the river would be substantially reduced. Instead, the Missouri River floods even worse than before the river was altered and we’ve lost the ecosystem services that a natural river system provides us, such as flood storage, water filtration, wildlife habitat, and recreation.
The Corps, through the Bank Stabilization and Navigation Program, heavily altered the Missouri River to facilitate farming in the floodplains’ legacy rich soils and to create a barge channel which, while built, has never carried much traffic. These changes destroyed much of the natural habitat for endangered species including the Pallid Sturgeon, Least Tern, and Piping Plover as well as for other aquatic and floodplain ecosystem critters. The alterations disconnected the river from its floodplain ultimately giving these landowners adjacent to the river free land, that land used to be floodplain and even the river itself in some cases. Now, the landowners want to maintain their access to it on the taxpayers’ dime even as it costs the public financially and in the loss of environmental benefits a functioning, healthy river system provides.
The decision in the Missouri River lawsuit is disturbing because it changes the baseline for river and floodplain management. The altered, unnatural river is the baseline in a world where we never expect floods – a world of make believe. I like fantasy and comic book movies as much as the next guy, but this is not the physical reality in which we and the rivers exist. As river scientist at Washington University, Bob Criss, says about these flood control river management practices on our major rivers, “It’s like fighting the moon.. It’s stupid to fight.” We can never “tame” the Missouri River to be a predictable channel of water. Nor should we want to. But the Missouri River, as we have reshaped it now, is a fast-moving canal, devoid of much of its former fish and wildlife habitat. The river will still unavoidably jump its artificial banks to wreak havoc on residents nearby and result in a clean-up bill to all taxpayers.
The landowners, farmers in the Missouri River floodplain, took the Corps of Engineers to court alleging an illegal “takings” of their property – property on which they chose to build homes and farms that had previously been subject to the recurring natural inundation that supports healthy river function, habitat for aquatic and other species, and additional ecosystem services associated with connected, natural floodplains like water quality.
The Pick Sloan plan included levees set back varying distances with a minimum distance of 1000 feet from the river. Unfortunately, much of the forethought put into the plan to mitigate flooding by allowing the river room to function was never implemented due to stubborn push back from down river interests. Levees were built too close to the river and development placed in harm’s way. When the river has no room for the dynamic hydrological processes inherent in any river system, it has nowhere to go but up. And as we see time and time again, despite the levees, the river inevitably tops its banks and inundates its floodplains with devastating results for the communities and landowners who misguidedly trusted the structures along the river when they chose to develop the floodplain.
In order to alleviate flooding to communities along the river, rural, urban and suburban folks all have a role to play in changing these harmful river management choices. Are we smart enough to see a better way? We can rebuild natural areas along the river which can provide both recreation and add to flood reduction for floodplain communities. We can restore a more natural river system which will improve fisheries and create a wider river, ready to absorb more flood water. We can set back levees a sensible distance to reconnect the river to some of its former floodplain.
This will not solve or prevent all future flooding, but it is a rational way forward to reduce the flooding the plaintiffs in this suit have suffered. Taxpayers absorb the cost of the repeated flooding of this unnaturally constricted river channel when it inevitably defies its leveed armor in the cyclical inundation of its natural floodplain. These natural processes dictate the inevitable ebb and flow of the river system.
The Missouri River will always to some degree assert its wild ways despite our best laid plans. Smart management choices strategically reconnecting some of the floodplain will alleviate pressure on the artificially narrow channel and flood risk to communities along the nation’s longest river can be substantially reduced. Given heavier and increasingly sporadic rains expected due to climate change, it is in our overwhelming interest to take these sensible steps to give the Missouri River more room to be a more natural river.
An important clue to those sensible steps is in the court decision itself. The plaintiffs claimed damages for several years of flooding, including the huge 2011 flood. But the judge ruled 2011 did not qualify for damages as flooding that year was exceptional due to weather. Also, in her decision, the judge divided plaintiffs in several geographical groups. Those plaintiffs with land along a section of the river above Sioux City were not due any compensation for any flood year. The reason is because that area is still a more “natural” river, without levees and plenty of natural habitat. Landowners there were not flooded in any year, other than the exceptional 2011.
Thus, it is only on the channelized river, with levees set close to the banks that flooding occurred. That is the key. The Corps’ modest efforts to improve natural habitat in and along the Missouri River were not the culprit. In fact, natural habitat along the river and reconnecting floodplain reduces flood risk. MCE and the Lower Missouri River Coalition (LMRC) are extremely disappointed with the decision in Ideker Farms v. the US Corps and feel it sets a dangerous precedent in which the federal government is on the hook and the future of critical restoration activities are in jeopardy. The decision presents a threat to the future progress in restoring this major riverway through the Missouri River Recovery Plan and even the fate of the Endangered Species Act. Check back for updates as the LMRC and MCE will be monitoring the aftermath of this decision.