The new water wars

When I first visited Shadwell in the summer of 2002, he was emailing his Monday morning messages to the White House with an alluring offer: free lodging at Point of View Resort and a guided fishing trip for lunker walleyes. He hadn't heard back, and that's probably just as well. The president professes to be a sporting man, but sport is hard to find along Lake Oahe. Touring Shadwell's 60-acre property along Ritter Bay, I noted that the water was so low and had receded so Far from land that the cove fronting his Point of View restaurant was situated roughly a half-mile from water. "It seems like the country really doesn't know our plight out here. It seems that, regardless of the situation, downstream barge traffic takes precedence," Shadwell told me over a beer at his empty bar.

There are plenty of Bob Shadwells in the Dakotas, people whose Missouri River recreation businesses need water in the worst way from federally managed dams. The drought that engulfed the region in the first years of the new century was the immediate cause for distress. In August of 1999, the elevation on Lake Oahe, calculated in feet above sea level, was 1,617. When I first visited there, it had dropped by 29 feet to 1,588. Water was also low at Fort Peck and Garrison. Together with Oahe, lakes at those dams hold 85 percent of the storage in the Missouri River system.

This was a punishing drought. But rain or not, the problem along the Missouri River is chronic. Routinely, there is not enough water in a system that gives priority to navigation. The Army Corps of Engineers interprets its Master Manual to say there must be sufficient water in the 732-mile stretch of lower river to maintain navigation, a criterion which in recent years has helped to keep the upper Missouri mighty dry. Congress and the courts have refused to stipulate otherwise, so somebody has to suffer. Right now, that somebody is Bob Shadwell.

I talked to Shadwell many times over the next two years, as the water continued to drop. He felt more desperate all the time, like a fish flopping in a boat and gasping for air. Abandonment can take over in a hurry in a remote land. The Point of View is situated near South Dakota's border with North Dakota where the earth is an exotic blend of camelbacks, swales, and hillocks, some perfectly round, that fellows hereabouts have named after parts of the female anatomy. Otherwise, you see nothing but a few cows on the five-mile gravel road back to Shadwell's lodge.

South Dakota and North Dakota have been mapped in a fight with Missouri over the river's level since the 1950s when the Army Corps of Engineers first began putting dams and locks on the river to control its flow. For a half-century, they have mostly lost. But their fight has recently taken on a greater urgency, given the $85-million-per-year recreation business on the Missouri--fly-fishing in Montana, trophy walleye hunting in the Dakotas, and weekend boating for tired suburbanites from Denver and Sioux Falls. That may not sound like much, but it dwarfs the shriveled, $9-million-per-year barge business the dams were originally built to protect, but which can no longer compete with cheaper trading and other modes of freight.

The fight over the Missouri is usually understood in Washington--when it's understood at all--as little more than a ruckus between the bearded, blue-jeaned biologists from the Fish and Wildlife Service (who want water levels in Missouri restored to some semblance of their natural flows to protect nesting birds and the pallid sturgeon) and military technocrats from the Corps, who are trying to keep their congressional paymasters and their allies along the river happy by keeping the river artificially controlled. But the dramatic decline in barge traffic between North Sioux City, S.D., and St. Louis, Mo., and the rise of the recreation industry further upstream, began to change that political calculus. By 2001, the legendarily intractable Corps suggested that it was ready to make some changes in river flows, handing a victory to the sturgeon and the Dakotas--a day that the odd coalition of fishers, Dakota pols, Fish and Wildlife biologists, and conservation groups thought would never arrive.

But the last four years have been far from a triumph for these groups. An aggressive congressional delegation, led by Sen. Christopher Bond (R-Mo.) and backed by a sympathetic White House eager to keep Missouri's electoral votes in the GOP column, has fought back, and the battle has drifted into a stalemate as knotty and dense as ever. Missouri River barges may be few, but they continue to get the water they need. And, as the drought persists, the Dakotas remain parched.

Now, similar political tensions are sparking battles over water in parts of the country that have never seen them before. In Florida, Arkansas, Georgia, and elsewhere, politically connected interests with declining economic rationales for the water are using the Corps to preserve their advantages usually over emerging populations and industries with a growing justification for that water. Water wars, a feature of Western politics for decades, have begun to move east.

This state of affairs won't last forever. Politics, like economics, eventually gives way to the law of supply and demand. The status quo of federal water management of American rivers is like the Soviet Union in the early 1980s, a grossly inefficient, economically senseless system kept alive by political and economic interests trying to protect their increasingly rickety power. One good blow and the whole thing could crumble.

Scripture of the water gods

Army engineers in suburban Omaha lord over the life of the Missouri River.

On a Monday in October 2000, my quest to understand how the Missouri rims and why has led me to the Reservoir Control Center in the Army Corps' Omaha District for the first of two weekly meetings that will decide how the waters of the river will flow.

Guiding this 21st-century command meeting on the river--and close at hand for easy reference--is the Corps' Master Manual. Like any scripture, the Master Manual inspires and incites. It is weighty--more than two pounds--and full of commandments as to where the water flows, when, and for whom. Written in stone long ago, these orders barely have changed over four decades. Recreation, fish, and wildlife come last in the litany "insofar as possible without serious interference" in the marching orders from Congress to the Corps.

Here in Omaha, the first order of business is taking stock of when it has rained along the river, and when it might, which takes some attention in a basin consisting of some 541,000 square miles. To calculate how much water might be entering the Missouri from the 220-plus rivers and streams that feed it, 14 Army engineers and civilian workers fix their eyes on an oversized computer terminal. As I watch, the Corps men and women study a series of National Weather Service reports.

A handful of reports forecast rain. This is news for rejoicing among the "god of navigable rivers" as the Army Corps of Engineers has been ordained by Congress. The Corps invokes satellites on high to consult readings from 800 rain gauges. The calculus of flow decisions also must factor in the volume of water in reservoirs behind the dams and the volume of water needed to generate the electricity that can be sold that day on the spot market.

Rain is forecast south of Sioux City, Iowa, so the team decides to release slightly less water into the lower stretch of river that flows from Sioux City into the Mississippi above St. Louis. The water gods command that the flow of river through Gavins Point be scaled back to 32,500 cubic feet per second from 33,000, as it had been. A flow of 33,000 cubic feet of water amounts to roughly 250,000 gallons, enough to inundate a football field to the depth of one foot.

They email their instructions to Gavins Point Dam, 160 miles north at the South Dakota-Nebraska border, where they arrive on Dennis O'Rourke's computer screen much faster than I can make the trip north to see them executed.

Releasing all this water from Gavins Point is a one-finger job, and I imagine Michelangelo's "Creation of Adam" as O'Rourke stretches out his finger to enter the command. Instantly, there's movement beneath us in the 54,000-horsepower turbines that generate electricity from the raging water. Inside the turbines, 10-feet high, four-ton wicket gates close ever so slightly, like Venetian blinds, diminishing the flow of water from Lewis and Clark Lake, a reservoir on the north side of the dam, through the dam and out into the Missouri River on the other side.

The Corps of Engineers' control of the water on the Missouri stems from the 1940s, when Congress, having just beaten the fascists and in search of grand projects at home, began to assign the Army to dam and manage rivers. Two audacious bureaucrats--an Army engineer named Col. Louis Pick who had headed the Corps' Omaha office, and an easygoing assistant chief in the Bureau of Reclamation's Billings office named Glenn Sloan--had been pushing for a new regime of federal management of the Missouri. They were aided in their quest by municipal boosters from Montana to Missouri who were panicked by the river's regular floods and believed the river's barge industry would benefit if the vessels could more reliably traffic the river. Congress, its members smelling pork projects for their districts, agreed, allowing the Corps and the Bureau of Reclamation to combine their contradictory river development plans in the Pick-Sloan Act. Since then, the Missouri River has been managed under the precepts set down in the Corps' Master Manual, which makes the lower river's navigation for barge traffic a priority. But by the time the Corps completed its nine-foot-deep channel from St. Louis to Sioux City in 1981, the barge business it had been designed to accommodate was beginning to become economically obsolete.

Sunk!

"What we've got here is like an old-fashioned Western water fight," insists barge industry executive Don Huffman, a Missourian who retired recently after more than three decades in the barge business. "They want the water up there and we want it down here."

It takes perspective as long as Huffman's to defend the vitality of Missouri barging. We were headed toward success until the 1980 grain embargo, the barge industry says, one in a list of laments as long as it is arcane. Managed low flows have destroyed reliability and run off potential customers. We just need another chance. We're an industry under siege, facing off against conservationists, upstream recreationists, and shrinking revenues.

The Missouri River barge industry was bound for trouble. As suburbs have spread and trucking and rail have remained the dominant means of transporting goods up, down, and around the Midwest and Great Plains, it takes a mighty lean barging operation to steal shipping business. And barging on the Missouri--unlike on rivers like the Mississippi--has always been a dicey proposition. Even bank stabilization and the Corps' channel-digging haven't fully tamed this threatening, meandering river, as the Great Flood of 1993 showed. And the threat that some nesting terns will delay the shipping season another day; week, or month has taught clients that barging is not the most reliable way of getting your goods from Sioux Falls to St. Louis, or back.

And so the river's barging business has shrunk. An industry that was once essenual for bringing all the produce of the Plains to market has dwindled to a $9 million annual business, according to calculations by a long-time ally of the barge industry--the Army Corps of Engineers.

Your horse is pregnant

Not long after that nine-foot-deep channel was completed, advocacy groups objecting to the principles governing the Corps' management of the Missouri began to organize. They believed that the Master Manual (with its Dr. Strangelove-like name) gave unjust preference to barge interests and their chief allies, farmers along the river. Meanwhile, the Fish and Wildlife Service, which is charged with enforcing the 1973 Endangered Species Act, began to document how the Corps' finger-of-God raising and lowering of the Missouri's water line had rather remorselessly disturbed the natural rhythms of life for the river's animals. Particularly, they argued, the Corps was endangering two federally protected species of bird and the pallid sturgeon, a beast with a flat, shovel-like snout and a reptilian tail that looks like a genetic concoction of dinosaur, shark, and alligator.

Second, there were the upriver states--Montana, North Dakota, and South Dakota--in a region often plagued by drought, which argued that the manipulations of the river routinely starved their portion of the Missouri of needed water. North Dakotans are far and away the most zealous on this point: One of their distinguishing characteristics is a willingness to display bottles of their yellow, mineral-fouled water for any reporter or politician they meet. I have encountered these bottles everywhere from North Dakota to the halls of the Dirksen Senate Office Building in Washington, D.C. (One North Dakota rancher, Keith Farstveet, recalled, perhaps in jest, that he had once sent a yellowish sample of well water to a state lab for analysis. It came back with a note, which Farstveet recounted: "Your horse is pregnant.")

The upriver states, often in league with Indian tribes and recreation interests, typically lose Missouri River battles thanks to the critical, hand-in-hand relationship between the Corps and Congress that strengthened throughout those decades. The Corps, like the rest of the Army, serves the White House, but over the last century it has become effectively a branch of Congress. This tight relationship has long made sense: Both the Corps, which has wanted a grand role for itself, and Congress, which has wanted pork for favored districts, has had an interest in ginning up more and bigger Chamber-of-Commerce-pleasing projects such as dams, levees, and irrigation systems. By 1950, Harold Ickes, formerly FDR's long-serving Interior Secretary, was moved to write: "It is to be doubted whether a federal agency in the history of this country has so wantonly wasted money on worthless projects as has the Corps of Engineers.... No more lawless or irresponsible federal group than the Corps of Engineers has ever attempted to operate in the United States." It took another half-century for this mindset to trickle out beyond the world of liberal public-interest groups in Washington, but when it did, it meant trouble for the Corps.

"A cockamamie, godawful project"

In the new century, it wasn't just liberals like Ickes or advocacy groups who were squawking. Budget hawks and Republicans with environmental sensibilities began pressuring the Corps. U.S. Rep. Wayne Gilchrist, a Maryland Republican and ex-marine, summed up the growing criticism: "The Corps of Engineers has been overused by Congress," he told me in the summer of 2002. "They've dredged, they've levied, they've channelized, and they've degraded the environment of the United States more than they have needed to." For instance, independent experts at Virginia Tech concluded in 2000 that the Corps had overestimated by $144 million the benefits of a huge Mississippi project called Yazoo Pumps, which would drain 200,000 acres of Mississippi River wetlands to make new farmlands. Ex-Interior Secretary Bruce Babbitt called the Yazoo Pumps plan 'A cockamamie, godawful project."

Similar sentiments echoed around the Department of the Interior after a Corps project to rescue the Chesapeake's native Virginia oyster, which relied upon "carpet-bombing" one million baby oysters into the Great Wicomico River, ended in laughable disaster when a herd of native stingrays descended and devoured the shellfish. "We didn't really know anything about the cow-nosed ray," Corps project manager Doug Martin told the Norfolk Virginian-Pilot. "It kind of surprised us."

The Corps' mismanagement of water and its often-bungled attempts to rework natural resources are being repeated around the country, its critics say. As municipalities in the South and East from Atlanta to Charlotte to Little Rock, have expanded out into fields, the strain they've put on existing water supplies has increased dramatically. "The level of conflict that we associate with the West is now occurring around the country," Robert Hirsch, associate director of the US. Geological Survey and the nation's chief water scientist, told me when I visited his office in suburban Washington, where the nation's water is watched and measured. "There are many concerns and even jealousy. Everyone worries that somebody's going to steal their water."

Rice growers in Arkansas, the backers and beneficiaries of a proposed $300 million Corps pumping project designed to keep their plantations irrigated, found themselves in conflict with a vast coalition of smaller farms, municipalities, and environmental groups, after the growers depleted a main aquifer with unsustainable farming. Residents along the Apalachicola River in Florida are furious at a decades-long Corps dredging project designed to build a canal for a barge industry that sends so few vessels downstream each month that locals can count them on a single hand. And the bursting- at-the-seams water needs of sprawling metropolitan Atlanta have meant a D-year negotiation over how to distribute water among Georgia, Alabama, and Florida--a debate that shows no signs of reaching a conclusion.

In 2000, reporter Michael Grunwald wrote a series of stories in The Washington Post based on more than a thousand interviews and tens of thousands of pages of documents. The Corps was parlaying its congressional relationships into billions of dollars' worth of water projects, he concluded, and many of them charged heavy environmental costs for dubious economic value. At about the same time, the National Academy of Sciences took the Corps to task in two separate reports, saying the Army Engineers' methods and planning models for the Mississippi River were failing to balance economic and environmental benefits.

The tide seemed to be turning against the Corps. Besieged by Congress, environmental groups, and taxpayer advocates, by 2000, the Corps' then-new leader, Lt. Gen. Robert Flowers, had begun to realize that his agency's position was untenable. "The greatness of the Corps is being able to say no when no is the right thing to be said," he told me at Corps headquarters a block from the new MCI Center sports palace in Washington, D.C, and you could feel the wheels beginning to turn.

But in the 2000 presidential election, Gov. George W. Bush won Missouri, a state that had gone for Democrat Bill Clinton by wide margins in the two previous elections, and his advisors believed he had done so in part by siding with Missouri commercial interests--and the Corps--against the environmentalists and upriver states. (St. Louis, after the 1993 floods, had been particularly aggressive about building on the river's floodplains; millions of square feet of mall topped off by a Bentley dealership now sit on what had been the flooded neighborhood of Gumbo Flats. Its businessmen, consequently; had a lot to lose if the Corps dialed back its management of the river.) So, it was no surprise that the Bush administration fought the dramatic flow changes, including a summer draw-down of water, that would de-emphasize barge traffic and make the river more friendly to wildlife and recreation concerns. Gen. Flowers's professed reform impulse was nipped in the bud, and the status quo prevailed.

The Missouri compromise

One of the current administration's least-favorite species, an aggressive, avowedly liberal federal judge, offered perhaps the biggest threat to that status quo. I first encountered Gladys Kessler in July 2003 in Washington, D.C., where she was charged with adjudicating a suit brought by environmental groups hoping to compel the Corps to protect endangered species by altering the Missouri's ebb and flow. On a hot summer day; Judge Kessler, a Clinton appointee and a founder of the activist Women's Legal Defense Fund, looked mad enough to climb down from the bench and throttle one of the half-dozen government lawyers frying on her griddle.

"The Army general counsel didn't think this was a significant enough matter to attend himself?" she asked one junior Army lawyer.

Nor had the Army's acting secretary, Les Brownlee, shown for a hearing. Brownlee had to be overseas, his staff had told her. Now, Kessler heard that he was busy at Fort Leavenworth. Which was it?

"I think that what was reported to my office was that he was in Europe, not Kansas. Kansas is a little closer than Europe," she snapped.

Environmentalists were downright giddy. Kessler ordered the Missouri to fall in order to protect nesting birds, the first such court ruling. Suddenly, the Corps' mission of river navigation--of keeping those barges running--had been trumped by the imperative of protecting species.

It had the makings of a seismic ruling yanking away decision-making from the Corps, which had run Big Muddy like a private stream. There was a second trembler underlying her ruling: If Kessler's logic held, the balance of control over the river might shift to upper basin states for the first time in decades. And her logic might well apply to other river wars across the country.

Among recorders of the shock waves was a New York Times editorial writer who observed: "On the eve of the 200th anniversary of Lewis and Clark's historic journey, Americans can begin to hope for a better future for the river that carried the expedition westward." Judge Kessler threatened to become draconian, declaring that the Corps would be fined a half-million dollars every day they failed to comply.

But Kessler never had the opportunity to drag the Corps officers into her courtroom again, or levy her fine, or get draconian. What happened next was the judicial equivalent of the Major League Baseball commissioner stepping in with a scheduling change during the World Series, a classic deus ex machina. On the afternoon before Kessler's deadline, the Judicial Panel on Multidistrict Litigation, of which I'd never heard but which had been setup in the 1960s to help federal courtrooms run more smoothly, transferred six Missouri River cases--among them the litigation in front of Kessler--to the Minnesota courtroom of a US. District Judge named Paul Magnuson, a senior, conservative jurist appointed by Ronald Reagan. The Bush Justice Department wasted no time in requesting a stay on the fine imposed by Kessler, and Magnuson granted it. Ultimately, his rulings would preserve the authority of the Army Corps of Engineers--and the status quo.

Till the bank shuts me down

An iron triangle of joined interests has kept the Missouri River battle stuck for so long: the Corps' political clout in Congress, the downstream barge industry, and Missouri's appeal as a presidential swing state. Arguably, the importance of each of those is diminishing, and the evolving economic realities suggest a coming political realignment on this most intractable of issues. Such a realignment might be triggered by a judge like Gladys Kessler; more likely, a future president will make the calculation that the political benefits of pleasing the senators in three states (N.D., S.D., and Mont.) outweigh the risks of crossing the barge industry in one state, Missouri. In any event, such a change is unlikely to occur under the present administration. The Bush White House has cast its lot with the downriver folks and has repeatedly cast a decisive veto to reject any efforts to alter the status quo.

So, for the moment, that status quo persists, and that's left some in an unpromising spot. When I spoke with Bob Shadwell in 2003, he told me he'd filed for bankruptcy protection. As the drought persisted, water levels along the Lake Oahe stretch of the Upper Missouri had continued to drop--by an amazing 11 feet. Cottonwoods submerged for a half-century protruded like a forest graveyard, he said, and getting on the fiver was spooky as well as dangerous.

A resort had closed nearby; a victim of drought and what Dakotans regarded as a water-allocation policy favoring downstream interests. But despite disastrous conditions, Shadwell insisted that he would not abandon his dream of running a fishing lodge with his family. "I can't give up on this," he said. "I'm going to hang on until the fat lady sings or the bank shuts me down."

Bill Lambrecht is Washington bureau chief of the St. Louis Post-Dispatch. This article is adapted from his current book, Big Muddy Blues (Thomas Dunne Books). Copyright Bill Lambrecht 2005.