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SD, Corps says request could cause chaos {lowering Lake Oahe}

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  • Senior Staff
    from Erth...thanks! Corps says request could cause chaos http://www.rapidcityjournal.com May 1,2002 By Chet Brokaw, Associated Press Writer PIERRE — South
    Message 1 of 1 , May 1, 2002
      from Erth...thanks!

      Corps says request could cause chaos
      May 1,2002
      By Chet Brokaw, Associated Press Writer

      PIERRE — South Dakota's lawsuit seeking to prevent the Army Corps of Engineers from lowering Lake Oahe would have catastrophic results downstream on the Missouri River, corps officials said Tuesday.

      In a written response to the state's lawsuit, the corps said halting water releases from Lake Oahe and the other reservoirs would lower downstream flows to the point that barges would be stranded. Some barges could break apart, releasing hazardous or toxic material, the corps said.

      In addition, the lowering of the river downstream of the reservoirs could harm threatened species such as the piping plover, least tern and pallid sturgeon, and could jeopardize water supplies in many cities, the corps said.

      Corps officials said the Missouri River has been hurt by three years of drought. "The harsh fact is that current drought conditions are unavoidably imposing constraints on all water uses and creating sharp conflicts between uses," the corps' response said.

      The corps' response was filed in federal court Tuesday in response to a lawsuit filed last week by the state of South Dakota.

      U.S. District Judge Charles Kornmann will hold a hearing Wednesday in Aberdeen on the state's request for a temporary court order preventing the corps from lowering the water level on Lake Oahe in the next few weeks.

      The state sued the corps to stop it from lowering the lake during the rainbow-smelt spawn. The baitfish, a key source of food for walleyes and other game fish, have been scarce for several years, but biologists believe the smelt will have their best spawn in five years unless the water recedes and leaves their eggs high and dry.

      The lawsuit argues that the corps has mismanaged the river to favor downstream navigation at the expense of upstream fishing and recreation.

      The state on Tuesday filed an amended complaint to include the other Missouri River reservoirs.

      The state's amended lawsuit requests that any court order protecting the water level on Oahe make it clear that the corps cannot hurt spawning in other reservoirs to help Oahe. In other words, water levels would be maintained in Oahe and the other reservoirs by cutting releases into the portion of the river downstream of the dams.

      Smelt lay their eggs on the bottom in very shallow water, at an average depth of 6 inches. If the water level drops, those eggs die when exposed to air.

      The lawsuit seeks a temporary court order that prevents the corps from lowering the level of Lake Oahe until May 22 so the smelt eggs can hatch.

      The state argues that the corps has the discretion to manage the river to protect upstream fishing. It contends that the corps' actions have been arbitrary, capricious and an abuse of discretion.

      The lawsuit says the Flood Control Act of 1944 requires the corps to balance the use of Missouri River water, but the agency has given priority to navigation. It also argues that the corps' management violates a federal law on administrative procedures because it is not based on reason or law.

      The corps argues, in response, that its management of the river is not reviewable by courts because federal law leaves such issues to the agency's discretion. The corps also says it has made no final decision of the kind that can be reviewed in court.

      A similar lawsuit was stopped about a decade ago after a federal appeals court ruled against the state, the corps says.

      The agency also contends that the state has failed to show it would be irreparably harmed if the water level is lowered on Lake Oahe. The state has alleged that a drop in water would harm fish and cause monetary losses, but that does not amount to irreparable injury, the corps says.

      The one-year failure of fish to spawn will not irreparably damage a species, the corps argues. When fish populations are depleted, they naturally regenerate themselves, the corps says.

      An estimated 72 barges are on the Missouri River, and it would take two or three weeks to get them all off the river, the corps says. If water is retained in upstream reservoirs so the flow drops downstream, barges could be left stranded and settle on uneven surfaces that would break them apart, the legal documents say.

      Some of those stranded vessels contain hazardous or toxic cargo that could be released, the corps says.

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