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26–815 PDF 2006

POTENTIAL EFFECTS OF MISSOURI

RIVER SPRING RISES ON CROP

INSURANCE POLICIES

HEARING

BEFORE THE

SUBCOMMITTEE ON

GENERAL FARM COMMODITIES

AND RISK MANAGEMENT

OF THE

COMMITTEE ON AGRICULTURE

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

FEBRUARY 28, 2006, JEFFERSON CITY, MO

Serial No. 109–26

(

Printed for the use of the Committee on Agriculture

agriculture.house.gov
COMMITTEE ON AGRICULTURE

BOB GOODLATTE, Virginia, Chairman

RICHARD W. POMBO, California

TERRY EVERETT, Alabama

FRANK D. LUCAS, Oklahoma

JERRY MORAN, Kansas

WILLIAM L. JENKINS, Tennessee

GIL GUTKNECHT, Minnesota

ROBIN HAYES, North Carolina

TIMOTHY V. JOHNSON, Illinois

TOM OSBORNE, Nebraska

MIKE PENCE, Indiana

SAM GRAVES, Missouri

JO BONNER, Alabama

MIKE ROGERS, Alabama

STEVE KING, Iowa

MARILYN N. MUSGRAVE, Colorado

RANDY NEUGEBAUER, Texas

CHARLES W. BOUSTANY, JR., Louisiana

JOHN J.H. ‘‘JOE’’ SCHWARZ, Michigan

JOHN R. ‘‘RANDY’’ KUHL, JR., New York

VIRGINIA FOXX, North Carolina

K. MICHAEL CONAWAY, Texas

JEFF FORTENBERRY, Nebraska

JEAN SCHMIDT, Ohio

——— ———

COLLIN C. PETERSON, Minnesota,

Ranking Minority Member

TIM HOLDEN, Pennsylvania

MIKE MCINTYRE, North Carolina

BOB ETHERIDGE, North Carolina

JOE BACA, California

ED CASE, Hawaii

DENNIS A. CARDOZA, California

DAVID SCOTT, Georgia

JIM MARSHALL, Georgia

STEPHANIE HERSETH, South Dakota

G.K. BUTTERFIELD, North Carolina

HENRY CUELLAR, Texas

CHARLIE MELANCON, Louisiana

JIM COSTA, California

JOHN T. SALAZAR, Colorado

JOHN BARROW, Georgia

EARL POMEROY, North Dakota

LEONARD L. BOSWELL, Iowa

RICK LARSEN, Washington

LINCOLN DAVIS, Tennessee

BEN CHANDLER, Kentucky

PROFESSIONAL STAFF

WILLIAM E. O’CONNER, JR., Staff Director

KEVIN J. KRAMP, Chief Counsel

JOHN HAUGEN, Communications Director

ROBERT L. LAREW, Minority Staff Director

SUBCOMMITTEE ON GENERAL FARM COMMODITIES AND RISK MANAGEMENT

JERRY MORAN, Kansas, Chairman

TERRY EVERETT, Alabama

FRANK D. LUCAS, Oklahoma

WILLIAM L. JENKINS, Tennessee

TIMOTHY V. JOHNSON, Illinois

Vice Chairman

MIKE PENCE, Indiana

SAM GRAVES, Missouri

JO BONNER, Alabama

STEVE KING, Iowa

MARILYN N. MUSGRAVE, Colorado

RANDY NEUGEBAUER, Texas

CHARLES W. BOUSTANY, JR., Louisiana

K. MICHAEL CONAWAY, Texas

JEFF FORTENBERRY, Nebraska

——— ———

BOB ETHERIDGE, North Carolina,

Ranking Minority Member

JOHN T. SALAZAR, Colorado

JIM MARSHALL, Georgia

STEPHANIE HERSETH, South Dakota

G.K. BUTTERFIELD, North Carolina

CHARLIE MELANCON, Louisiana

JOHN BARROW, Georgia

EARL POMEROY, North Dakota

LEONARD L. BOSWELL, Iowa

RICK LARSEN, Washington

BEN CHANDLER, Kentucky

DAVID SCOTT, Georgia

JIM COSTA, California

TYLER WEGMEYER, Subcommittee Staff Director

(II)
(III)

C O N T E N T S

Page

Etheridge, Hon. Bob, a Representative in Congress from the State of North

Carolina, opening statement ............................................................................... 2

Graves, Hon. Sam, a Representative in Congress from the State of Missouri,

prepared statement .............................................................................................. 3

Hulshof, Hon. Kenny C., a Representative in Congress from the State of

Missouri, prepared statement ............................................................................. 3

Moran, Hon. Jerry, a Representative in Congress from the State of Kansas,

opening statement ................................................................................................ 1

Skelton, Hon. Ike, a Representative in Congress from the State of Missouri,

prepared statement .............................................................................................. 4

Talent, Hon. James M., a U.S. Senator from the State of Missouri, statement . 5

WITNESSES

Asbury, Randy, executive director, Coalition to Protect the Missouri River,

Higbee, MO ........................................................................................................... 27

Prepared statement .......................................................................................... 37

Bryan, William, deputy chief counsel, Missouri Attorney General’s Office,

Jefferson City, MO, on behalf of Missouri Attorney General Jay Nixon ......... 21

Prepared statement .......................................................................................... 46

Cieslik, Larry, Deputy Director of Programs—Missouri River, and Chief,

Water Management Division, Missouri River Basin, Northwestern Division,

U.S. Army Corps of Engineers, Omaha, NE ...................................................... 6

Prepared statement .......................................................................................... 38

Ferrell, Fred, director, Missouri Department of Agriculture, Jefferson City,

Missouri ................................................................................................................ 19

Prepared statement .......................................................................................... 47

Gould, Eldon, Administrator, Risk Management Agency, U.S. Department

of Agriculture ........................................................................................................ 9

Prepared statement .......................................................................................... 41

Answers to submitted questions ...................................................................... 43

Hilgedick, Terry, president, Missouri Corn Growers Association, Jefferson

City, MO ............................................................................................................... 29

Prepared statement .......................................................................................... 40

Waters, Tom, chairman, Missouri Levee and Drainage District Association,

Orrick, MO on behalf of the Missouri Farm Bureau Federation ..................... 26

Prepared statement .......................................................................................... 44

SUBMITTED MATERIAL

Claycamp, Roy, producer, Seneca, KS ................................................................... 41
(1)

POTENTIAL IMPACT OF MISSOURI RIVER

SPRING RISES ON CROP INSURANCE

POLICIES

TUESDAY, FEBRUARY 28, 2006

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON GENERAL FARM

COMMODITIES AND RISK MANAGEMENT,

COMMITTEE ON AGRICULTURE,

Jefferson City, MO.

The subcommittee met, pursuant to call, at 8:02 a.m., at the Missouri State Capitol Building, Jefferson City, MO, Hon. Jerry Moran

(chairman of the subcommittee) presiding.

Present: Representatives Graves and Etheridge.

Also present: Representatives Hulshof, Akin, Emerson, and Skelton.

Staff present: Tyler Wegmeyer, subcommittee staff director; and

Clark Ogilvie.

OPENING STATEMENT OF HON. JERRY MORAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF KANSAS

Mr. MORAN. Good morning, everyone. The Subcommittee on General Farm Commodities and Risk Management will come to order.

We are here to review the potential impact of Missouri River

spring rises on crop insurance policies. And I’d like to thank everyone for being here today and coming and telling us their story. I

appreciate very much the hospitality extended to and Kansas me

by the folks of Missouri. It’s my pleasure to be here, and we look

forward to hearing from you and gaining some insight into what

farmers in this river basin may face.

We’re here in large part because we were invited by the Missouri

congressional delegation of Mr. Skelton and Mr. Hulshof in particular, and although they are not members of this subcommittee, they

have been very valuable, and we were delighted to come to their

part of Missouri to see if we could assist them in representing their

constituents.

My name is Jerry Moran. I’m a Member of Congress from Kansas. I live in Hays, Kansas, and enjoyed the drive to Missouri yesterday.

Mr. Etheridge of North Carolina is seated to my right. He is the

ranking democratic member. Already, his southern voice—I’ve told

him that despite the fact that I’m a neighbor to Missouri, he will

be better received by all of you than I, as you will notice when you

hear him speak.
2

We have three distinguished panels of witnesses today. It’s important for us to stay on time. We have votes in Washington, DC

late this afternoon, so we have a flight to catch, but we do want

to take the time necessary to get a picture of what the challenge

may be to Missouri agriculture.

We recognize that crop insurance is an integral part of farming.

Most farmers consider it as the centerpiece of their risk management planning and would not think of risking their livelihood without that coverage that crop insurance provides. The program is

generally working for the vast majority of American farmers and

our subcommittee’s goal is to see that it continues to improve and

expand and assure a food supply that is safe and secure and a stable rural economy.

This subcommittee spends most of its year—we have jurisdiction

over all farm programs—so we will spend most of our year talking

about, listening to, and exploring a new farm bill. Before we got

started on that task, we wanted to make sure we were here in Missouri to talk about crop insurance. I know we’ll hear the concerns

about crop insurance coverage in case of a flood caused by raised

water in the Missouri River, and we hope to get a clear understanding of farmers’ concerns, as well as clarity from the administration, Corps of Engineers and risk management agencies as to

what effect that spring rise might have on crop insurance policies.

Again, I thank our witnesses, and I now turn to my distinguished colleague from North Carolina, Mr. Etheridge.

OPENING STATEMENT OF HON. BOB ETHERIDGE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH

CAROLINA

Mr. ETHERIDGE. Thank you, Mr. Chairman. It’s a privilege for me

to be back in Missouri after a number of years. Let me thank you

for agreeing to hold the hearing here for our colleagues in Missouri,

whom we hold in very high esteem in Washington for their leadership, even though, as the chairman said, they are great supporters,

but especially Ike and Kenda do a lot of things. And Ike is one of

the people we look to for leadership and responsibility when it

comes to military matters.

This morning, though, we’re here, and I wish we weren’t here for

the circumstances we’re here, but I will review the actions or possible inaction of certain Federal agencies and how they will affect

the lives of countless farm families here in Missouri. The testimony

we will hear later, we will learn that possibly 775,000 acres of cropland in this State could possibly be at risk.

And I’m not talking about the risk associated with planning of

the 500-year flood plan. Being a farmer myself, a farmer understands the risks. They took those chances if they do that before

they planted. I’m talking about risks associated with finding out 2

months ago that their crop insurance policies may not provide

them with the kind of production security that they need.

As you said, Mr. Chairman, the purpose of this hearing is to hear

from RMA and the Army Corps of Engineers and various State

folks in Missouri about the planned spring pulses from the Davenport Dam can affect the crop insurance policies that so many

farmers in this area rely upon. We’ll hear more about the potential
3

risk that pulses pose and, hopefully, we can find a way to deal with

it.

I want to command you, though, for, again, holding the oversight

hearing. I think it’s important that we get out where people are.

This hearing will allow us to satisfy our responsibilities to ensure

that the farm programs that we enact are serving their purposes

and for the intent that we intended.

I follow your leadership in looking into this matter, and hope and

trust that we receive more oversight hearings in the coming year.

I look forward to the testimony this morning, and the questions

that will follow, so we can get some answers that will help solve

some of these problems.

Thank you, Mr. Chairman.

Mr. MORAN. Mr. Etheridge, thank you very much.

The Chair would request other Members to submit their opening

statements for the record, so that the witnesses will hear their testimony and ensure we will have time for questions.

[The prepared statements follow:]

PREPARED STATEMENT OF HON. SAM GRAVES, A REPRESENTATIVE IN CONGRESS FROM

THE STATE OF MISSOURI

Thank you Mr. Chairman. And thank you for having this hearing on the Missouri

River, I appreciate you bringing the subcommittee out to Missouri to get a first

hand look at the disaster a spring rise causes my State. Hopefully, with the knowledge we gain today, we can propose a better solution that will no longer pit one species over another, yet offer a solution that will benefit all stakeholders.

As you are all well aware I am very opposed to a spring rise. We have a policy

here that attempts to benefit a fish while ignoring the interests of the farmers and

other stakeholders reliant on the river. I don’t understand the thought behind this

policy. Why can’t a solution be made that would benefit both instead of pitting one

against the other?

Also, we all have been informed late last year by the USDA that a farmers crop

insurance will not cover any destruction caused by a spring rise. The reason they

gave us was that crop insurance only covers crops that are destroyed by a natural

occurring event.’’ They go on to explain that a Federal mandated ‘‘spring rise,’’ that

happens to be planned twice this year in March and May to increase to spawning

habits of an endangered fish, will not be covered because its ‘‘man-made.’’ So if I

understand this correctly, a Federal mandate to artificially create a rise in water

levels with the potential to flood the over 1 million Missourians in the MO River

flood plain will not be covered under the USDA’s crop insurance policy? That is absolutely ridiculous and that policy desperately needs to be reconsidered.

Thankfully, as a member of the Agriculture Committee I will have an opportunity

to look into this issue closer and remedy the situation. I look forward to hearing

my colleague’s thoughts on this issue, and to what the panel has to say. Thank you.

PREPARED STATEMENT OF HON. KENNY C. HULSHOF, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF MISSOURI

Good morning, and to Chairman Moran, Ranking Member Etheridge and everyone

else from out of State, welcome to Missouri. Gentlemen, I thank you for agreeing

to have this hearing today in Jefferson City. To anyone here who might not be familiar with these two men, they are personal friends of mine and are most certainly

friends to agriculture.

I also must thank State Representative Steve Hobbs who has arranged for us to

use this hearing room today and Speaker Ron Jetton for his help in this matter.

Congressman Ike Skelton and I requested this hearing for three reasons, (1) to

publicly ask the Risk Management Agency how they will address damages caused

by the spring rise, (2) allow producers and landowners to formally express their concerns, and (3) to provide my constituents and other Missourians a chance to hear

straight answers about a situation that could directly impact their farms and their

financial future.

Let me begin by saying that I have never, and will never, support a spring rise,

or any other policy that increases the flooding risk to farms in order to possibly ben-
4

efit a fish. And in my estimation, the best way to alleviate the crop insurance problem we are faced with is to halt all efforts to enact a spring rise.

Those of us opposed to a spring rise have always made the common-sense assumption that the Risk Management Agency would serve as a safety net for those adversely affected by the spring rise, providing crop insurance coverage to those

harmed by this Government action. Initial reports that the Risk Management Agency planned not to cover these damages where disturbing. And though I appreciate

the agency’s willingness to engage on this issue, I strongly feel that those who farm

along the river must be given the certainty that flood damage associated with spring

rise will be covered by crop insurance.

To me, and the majority of people in this room, a crop insurance plan that would

not cover these damages defies logic. Common sense and basic fairness dictate that

crop insurance should cover flood damages caused by a spring rise. From the perspective of a farmer, it adds insult to injury for the Federal Government to cause

a flood and then refuse to cover crop damages associated with the Government’s actions.

Our time here this morning is short, and I wish to leave as much time as possible

for the witness so I will conclude by posing a few questions which I hope to have

answered during the course of today’s hearing.

First, I am unsure if the Corps knew before November 2005 that crop damages

caused by spring rise would be ineligible for compensation under the Federal crop

insurance program. If they did, why was this information not made public?— If they

did not, it raises the legitimate question what other ill-effects of the spring rise have

not been considered or publicized?

I have the same concerns with the Risk Management Agency. Did the agency

know about the spring rise prior to last year?— And if they did, did they do anything to alert the Corps to the problems that it might cause so that this information

could be considered as part of the debate on the spring rise?

I raise these issues not to put anyone on the spot; I raise these issues because

these are legitimate concerns brought to my attention by my constituents. But I also

raise these issues to illustrate a larger point. The proposed spring rise is bad policy

that will have unforeseen negative consequences, and thus, is a policy that is not

ready for implementation.

With that, I thank Chairman Moran once again and I yield back my time.

PREPARED STATEMENT OF HON. IKE SKELTON, A REPRESENTATIVE IN CONGRESS FROM

THE STATE OF MISSOURI

First, let me thank Congressman Jerry Moran of Kansas and Congressman Bob

Etheridge of North Carolina for agreeing to hold this hearing in Jefferson City.

Their being here highlights the importance of the issues we are about to discuss not

only to the State of Missouri but to the Nation. I welcome them and all other members of the subcommittee, including my friends, Congressman Kenny Hulshof, Congresswoman Jo Ann Emerson, Congressman Todd Akin, and Congressman Sam

Graves, to the Fourth Congressional District.

Let me take a moment to extend a special thank you to my good friend, Congressman Kenny Hulshof from Columbia, Missouri, in the Ninth Congressional District.

He and I have worked closely on river and agricultural issues, and it has been a

pleasure to partner with him again in this effort.

Mr. Chairman, today’s hearing will provide an important opportunity for the

United States Congress to perform legislative oversight over two executive branch

agencies—the U.S. Army Corps of Engineers and the U.S. Department of Agriculture—both of which have implemented policies that may harm the farmers I am

privileged to represent.

Today, we will have the chance to hear why the administration has charted this

course. We will also hear from Missourians who would be impacted by the Government’s decisions. It is my hope that this hearing will provide a forum for representatives of the administration to adequately clarify their positions to Congress and to

the American people. I look forward to hearing the testimony from every witness

and will work with my colleagues to determine whether any legislative remedies

will be necessary at the end of the day.

Before going further, I want to make clear that the issues surrounding the spring

rise and crop insurance are only one aspect of a much larger discussion regarding

river policy. For a long time now, we in Missouri and other downstream States have

strongly advocated on behalf of our farmers and other interests to ensure federal

policies do not harm the American people we represent. I pledge to continue that

fight, which is ongoing. This hearing, however, is a unique venue for Members of

Congress with legislative oversight over risk management to hear from you directly
5

on the spring rise and crop insurance issues. Congressman Hulshof and I felt it was

critical not to let this opportunity escape.

Just a few hundred feet from where we sit in the State Capitol, the Missouri

River is winding its way through the countryside, dividing Cole County in my district from Callaway County in Mr. Hulshof’s district. Looking north and east from

here, you will see vast acres of fertile soil stretching across the Missouri River valley—acres that are filled with row crops each year.

That river valley is home to our neighbors and friends who farm the land. The

farms along the river produce abundant yields that contribute greatly to Missouri’s

economy. Each year, farmers there face tremendous economic risks associated with

the swiftly moving waters of the Missouri River—waters we all saw rise to historic

levels in 1993 and which frequently rise each spring with little warning. Producers

rely on crop insurance to cover their losses, if necessary.

Because the river is so vital to the Show-Me State, I always keep a close eye on

how the Corps of Engineers plans to manage the river each year. When the Corps

released its 2006 operating plan, I was sorely disappointed to see two Government

sanctioned spring rises—in March 2006 and again in May 2006—included in the

proposal. These spring rises are bad for midwestern agriculture.

To add insult to injury, the U.S. Department of Agriculture’s Risk Management

Agency has announced it will not insure risks associated with the Corps’ Government sanctioned releases. The Corps’ actions may cause flooding when combined

with springtime storms and melting snow.

Given the RMA’s mission is to ‘‘promote, support, and regulate sound risk management solutions to preserve and strengthen the economic stability of America’s agricultural producers’’ and to ‘‘provide crop insurance to American producers,’’ the

agency should not exclude farmers’ potential crop losses from insurance coverage

under this scenario. Further, the Federal Crop Insurance Act provides the Secretary

of Agriculture quite a bit of leeway when assessing which losses can be covered by

the federal crop insurance program.

Again, thank you all for being here today. I welcome all of you to Jefferson City

and look forward to hearing from each of you.

PREPARED STATEMENT OF HON. JAMES M. TALENT, A U.S. SENATOR FROM THE STATE

OF MISSOURI

Mr. Chairman, thank you for holding this hearing today and welcome to Missouri.

I am sorry that I can not be with you in Jefferson City.

As you know, the Missouri River is the longest river in the United States and the

U.S. Army Corps of Engineers operates the Missouri River to serve several congressionally-authorized purposes including flood control, navigation, irrigation, hydropower, water supply, recreation and fish and wildlife.

The Missouri River is complicated to manage even when water is plentiful, but

it is extremely complex when flows are limited. This debate has spawned many

court cases and legislative battles. For decades, I have been fighting on behalf of

the downstream interests against the spring rise, which brings us here today.

The spring rise is extremely dangerous in that water released from the lowest reservoir (Gavins Point) takes about ten days to reach the confluence with the Mississippi River. Between the release point and St. Louis, there are no locks and dams

that could slow the water’s progress. In fact, twice in June of 2005, during a terrible

drought season, the Missouri river rose 9 feet in a period of 18 hours. During spring

months, the lower basin receives significant rainfall and the additional flows will

reduce drainage from highly productive cropland and increase the probability of

flooding. The floodplain includes 1.4 million acres of farmland, 30,400 homes and

5,345 buildings worth an estimated $17 billion.

Additionally, I question the science behind the spring rise. Even the United States

Geological Survey admits that little is known about the essential life history needs

of the pallid sturgeon and flow is just one of many factors that impacts spawning.

Other variable stimuli thought to be associated with the spawning event including:

temperature, photoperiod, and physiological conditions. Clearly, the spring rise is

unjustified and premature. More time is necessary to evaluate the alternative measures underway and more time is necessary for the USGS and other agencies to form

a baseline of analysis to evaluate biological response to the various approaches.

I have always opposed the spring rise. Under the 2006 Annual Operating Plan

recently released by the Corps, farmers are now facing not one, but two spring rises;

a March rise and a May rise.

For generations, local farmers, residents and businesses have depended on the

river for their lives and livelihoods. The two spring rises proposed by the Fish and

Wildlife Service put their livelihood at risk. Missourians understand they have a
6

special responsibility to be good stewards of the River and to use its resources in

an environmentally-sensitive way, and I certainly agree. However, I do not believe

that needs of Missouri farmers and the Missouri economy should play second fiddle

to a fish.

Furthermore, the Risk Management Agency recently announced that those landowners flooded under this proposed plan, shall not be eligible for crop insurance

benefits because it is a man-made disaster, rather than a ‘‘naturally-occurring

event.’’ It is outrageous that producers would not get the compensation that they

need and deserve. I will continue to work with my colleagues and stakeholder

groups to ensure that farmers who fall victim to spring rise flooding are compensated.

I continue to oppose the management of the Missouri River which has shifted the

primary purpose of the upstream dams and reservoirs towards recreational and environmental goals at the expense downstream interests such as: flood control, navigation and water availability for community public water supply and power generation. This dangerous alignment of priorities on the Missouri River will also have an

immediate impact on the livelihood of farmers and landowners along the river as

well as the economy of the State of Missouri.

Again, I thank you for your interest in this important issue.

Mr. MORAN. I would ask consent of the subcommittee that Mr.

Skelton and Mr. Hulshof be allowed to testify and ask questions of

our witnesses. If there is no objection, that is so ordered.

Mr. GRAVES. Mr. Chairman, I do not object at this point. I wish

to make two points where you warm the cockles of Missourians’

hearts. You pronounce the State of Missouri correctly. You call it

Missouri. And you also wear a Missouri University tie, and for a

Kansan, that’s first class, so thank you.

Mr. MORAN. I do know my audience, sir. I married a Missourian,

and the pronunciation, I’m told, is still in dispute, but I appreciate

knowing, at least according to you, I pronounce it correctly.

Mr. Graves, of the sixth district of Missouri, is a member of this

subcommittee. We’re delighted to have him here, and we have

joined by Mr. Akin, as well, and so I would ask unanimous consent

to allow the other Members of Congress to join us here and be able

to ask questions of the witnesses. Without objection, so ordered.

And with that, we’ll begin. Mr. Cieslik is with the U.S. Army

Corps of Engineers, and we will take your testimony first, followed

by Mr. Gould of the U.S. Department of Agriculture Risk Management Agency. Thank you very much.

STATEMENT OF LARRY CIESLIK, DEPUTY DIRECTOR OF PROGRAMS, MISSOURI RIVER, AND CHIEF, WATER MANAGEMENT DIVISION, MISSOURI RIVER BASIN, NORTHWESTERN

DIVISION, U.S. ARMY CORPS OF ENGINEERS, OMAHA, NE

Mr. CIESLIK. Thank you, Chairman Moran and members of the

subcommittee. My name is Lawrence Cieslik, and I’m the Deputy

Director of Programs and the Chief of Missouri River Basin Water

Management for the Northwestern Division of the U.S. Army Corps

of Engineers. I worked for the Corps for nearly 32 years, and have

been in my current position since 1997.

I have a degree in civil engineering from the University of Nebraska, and I’m a registered professional engineer in the State of

Nebraska. The Northwestern Division Commander, Brigadier General Greg Martin, regrets that he could not be here today, and has

asked me to represent him at this hearing.

The Corps operates the Missouri River mainstem reservoir system to serve congressionally authorized project purposes of flood
7

control, navigation, hydropower, irrigation, recreation, water supply and water quality of fish and wildlife. The Corps’ goal is to best

serve these authorized purposes, while complying with all applicable laws, including the Endangered Species Act, or the ESA, while

fulfilling our responsibilities to the federally recognized Native

American Indian tribes.

The Corps has been consulting with the U.S. Fish and Wildlife

Service under the ESA since the early 1990’s on the operation of

the Missouri River system, the bank stabilization and navigation

project, and the Kansas River projects. In November 2003, the Fish

and Wildlife Service provided the Corps a biological opinion, which

concluded that the Corps’ operation of these projects jeopardized

the continued existence of the interior least tern, piping plover and

pallid sturgeon, three animals protected under the ESA.

As a result of the additional information and the listing of critical habitat for the piping plover. In 2003 the Corps and the Service

re-initiated ESA consultations. In their 2003 amended buyout, the

U.S. Fish and Wildlife Service concluded that the corporate actions

jeopardized the continued existence of the endangered pallid sturgeon. In the 2003 amended buyout, the U.S. Fish and Wildlife

Service provided a reasonable and prudent alternative for RPA to

jeopardy.

This RPA includes a requirement for a bimobile spring pulse

from Gavins Point Dam. Intense efforts continue by the Corps, with

the assistance of the U.S. Fish and Wildlife Service, the USGS, the

State’s and other Natural Resources experts to restore the physical

habitat for the pallid sturgeon in the Missouri River below Gavins

Point. This restoration work will provide habitat for young sturgeons to develop and survive. However, under the 2003, amended

buyout, habitat creation does not substitute for changes in river

management to provide the flow conditions that promote sturgeon

reproduction.

The 2003 amended buyout requires the Corps to implement the

bimobile spring fall releases no later than the spring of this year.

However, the buyout also allows consideration of the existing

hydroclimatic conditions, such as drought, in the decision on

whether or not to implement the bimobile spring pulses in any

given year. The bimobile spring pulse releases are designed to cue

the pallid sturgeon spawning by partially restoring some semblance

of the river’s natural hydrography characterized by spring pulses

at times when major snow melt occurs first in the plains and then

in the mountains. Spawning and recruitment will be key to the recovery of self-sustaining sturgeon populations in Missouri.

The Missouri River basin is currently experiencing an extended

river drought and system storage is at unusually low levels. The

Corps has taken these low levels into account in developing the criteria for this year’s bimobile spring pulse release plan as allowed

for the buyout, along with taking input from the public regarding

the risks associated with the spring pulse releases.

The plan for this year is presented in the Corps 2005–06 annual

operating plan or AOP of the Missouri River system. This plan was

developed based on the requirements of the 2003 amended buyout,

intense analysis of hydrologic data, input from the spring pulse plenary group, which was comprised of more than 50 basin stakehold-
8

ers, tribal consultations and public comments received on the draft

AOP.

This collaborative process was facilitated by the U.S. Institute for

Environmental Conflict Resolution, and included representatives

from the U.S. Fish and Wildlife Service, the Corps, tribal representatives, basin states and a wide range of stakeholders. These

discussions were key in the identification of a bimobile spring pulse

plan for 2006 the greatly reduces the potential for negative impacts, as compared with the plan identified in the 2003 amended

buyout.

One key change was the reduction of the peak of the spring

pulses from 1 to 2 weeks, down to 2 days. This not only saves

water and system storage, which is very important during the current extended, but also reduces the duration of the higher river

stages downstream. The plenary group discussions and extensive

discussions with the U.S. Fish and Wildlife Service also helped the

Corps identify exactly how to adjust the magnitude of the May

spring pulse, in response to current hydroclimatic conditions.

During the drought, these adjustments substantially reduce or

eliminate the spring pulses. We believe that the bimobile spring

pulse plan presented in this year’s AOP complies with the requirements of the buyout while being responsive to hydroclimatic conditions. The Corps understands the farmers’ concerns over the potential for flooding of crop land during the bimobile spring pulse releases and their concern over crop insurance benefits during those

releases. The bimobile spring pulse plan includes criteria specifically designed to minimize the risk of downstream flooding and

crop damage.

First, the Corps and U.S. Fish and Wildlife Service agreed that

the established downstream flow limits would not be changed

under the 2006 AOP, providing similar downstream fluid control

during the spring releases as has been provided in previous years.

Second, the Corps agreed, at the request of the downstream agricultural interests, to integrate the National Weather Service’s precipitation forecast into its daily Missouri River operational forecast

during the spring pulse period and will adjust releases accordingly.

And third, the Corps will integrate estimated actual rainfall from

the U.S. Weather Service weather radar information into its forecast during its spring pulse releases. These measures, along with

the reduced duration and magnitude of the pulses, will reduce the

potential for downstream flooding of crop land. It is important to

note that because system storage is low due to the current extended drought, that releases for navigation in 2006 will be 6,000

cubic feet per second lower than normal, thus resulting in lower

peak flows during the spring pulses. All of this information has

been discussed with USDA and the Risk Management Agency to

help bolster their understanding of the spring pulse operations for

2006.

In conclusion, the Corps remains committed to operate the Missouri River mainstem system to serve the congressionally authorized project purposes, fulfill our tribal trust and treaty obligations,

and comply with all applicable law, including the ESA. We are convinced that this can best be accomplished in a sustained collaborative process that includes the entire spectrum of basin interests.
9

Working together as a team, Federal, tribal, State and local agencies and stakeholders, we can identify solutions that benefit the

basin as a whole.

Thank you for the opportunity to represent General Martin at

this hearing today.

Mr. MORAN. Thank you very much for coming and making your

testimony.

Our next witness is Mr. Eldon Gould, the Administrator of the

Risk Management Agency at the U.S. Department of Agriculture.

Mr. Gould, welcome.

Mr. Gould was just appointed by President Bush to serve in this

capacity, and although we thought your appearance before our subcommittee in March in Washington, DC would be our first opportunity to hear you, we’re delighted you’re here today and it’s nice

of you to come to Missouri and explain from the Risk Management

Agency your position.

So, thank you, sir, and welcome to your new position.

STATEMENT OF ELDON GOULD, ADMINISTRATOR, RISK

MANAGEMENT AGENCY, U.S. DEPARTMENT OF AGRICULTURE

Mr. GOULD. Thank you for that kind introduction. Mr. Chairman

and members of the subcommittee. My name is Eldon Gould, and

I’m Administrator of the Risk Management Agency, U.S. Department of Agriculture. I assumed this position in November of last

year. I’m a lifelong farmer in northern Illinois with the 1,500-acre

corn, soybean and wheat form.

My task here today is to explain the role of the Federal Crop Insurance Program as it relates to the Missouri River pulse releases.

We have been working on this issue beginning last year and in consultation with members of the Missouri congressional delegation

and some of their constituents on an ongoing basis.

The RMA administrates the Federal crop insurance program on

behalf of the Federal Crop Insurance Corporation. The agency has

a unique partnership with 16 private insurance companies that are

responsible for the sale and service of various insurance policies.

As you’re aware, the U.S. Army Corps of Engineers has scheduled two spring pulses or water releases from the Gavins Point

Dam on the Missouri River in an effort to mimic the natural river

rise and encourage spawning of the endangered pallid sturgeon.

This is being done to comply the requirements of the Endangered

Species Act.

There is concern among producers along the Missouri River, and

thus, among their elected representatives, that these pulses of

water might cause flooding or excess moisture conditions for farms

along the river. The Department of Agriculture has recently responded in writing to queries from Senators Bond and Talent, and

Representatives Emerson, Hulshof, and Skelton on this matter. We

also responded earlier to [Missouri] Attorney General Jay Nixon

and the Missouri Corn Growers Association. We take all of your

concerns very seriously.

As I have stated, Mr. Chairman, I am a producer myself, and one

of my goals as Administrator of RMA is ensure that RMA is doing

everything it can, within its legislated authority, to assist the farmer and rancher. To that end, the agency has been consulting exten-
10

sively with the Corps since we learned of the planned water pulse

events. Having sought out the facts, we believe that we have examined all aspects of the issue.

As you are aware, crop insurance payments are made on production losses that are due to acts of nature, such as weather events,

including drought, hurricane, freeze, disease and excess moisture.

These causes of loss are manifested in the Federal Crop Insurance

Act, and specifically stated in the crop insurance policies. These

proposed pulses of water by the Corps are not an act of nature, but

instead, are a requirement of Federal law. Therefore, in the unlikely situation that there are any losses attributable to those releases, those losses cannot be covered under the crop insurance

policies. However, any losses attributable to natural causes, such

as excessive rain, will be covered.

The planned March pulse of water will result in the increase of

1 to 11⁄2 feet in river stage at the peak of the pulse. The Corps has

informed us that the potential May spring pulse, given the drought

conditions in the basin, will cause a 11⁄2 to 3 feet rise in the river

downstream, and this will not cause a rise above a normal navigable river level.

We have communicated with the Assistant Secretary of the Army

for Civil Works, the Honorable John Paul Woodley, Jr. He has

given RMA assurances as to the Corps’ flexibility to administer

these releases with strong consideration given to flooding potential.

The Corps has routinely released water from reservoirs into the

Missouri River system in past years to meet various mandates

without affecting the crop insurance coverage. We have no reason

to believe that would not continue in the future.

Based on the Corps’ analysis of the current conditions of the Missouri River system, neither RMA nor the Corps anticipate that

these upcoming releases will cause damage to crops or crop land

along the Missouri River system. I can assure members of this subcommittee and their constituents that any crops insured with a

Federal crop insurance policy that suffer losses specifically attributable to natural causes, such as excessive rain, will be covered in

accordance with the terms of the policy, irrespective of these releases by the Corps.

In closing, Mr. Chairman, I would like to reassure you and members of this subcommittee that RMA is fully aware of your concerns

and those of your constituents. We have high regard for Assistant

Secretary Woodley and the members of the U.S. Army Corps of Engineers and like to thank them for their continued cooperation in

the examination of this matter. We will remain in close consultation with the Corps to minimize any potential risks to producers

along the Missouri River.

We thank you for the opportunity to participate in this important

hearing and look forward to responding to your questions.

Mr. MORAN. Mr. Gould, thank you very much.

Mr. Cieslik, would you outline for us the basis by which you

reached the conclusion that there will not be crop losses due to the

singular release?

Mr. CIESLIK. If you look at the magnitude of the spring pulses,

they alone would not cause the river to exceed bank full or cause

interior drainage problems if there was not excess tributary inflow
11

due to rainfall occurring on the Missouri River. So they in themselves would not cause the flooding. So I guess the answer that we

gave folks was tied to the question of whether or not the spring

pulse releases in themselves would cause this flooding.

Even in normal times, when we are providing flows for navigation, we do have overbank flooding. As everyone knows, it’s a problem, but it’s always associated with some kind of natural rainfall

event either on a tributary or right on the Missouri River. So the

spring pulse would not be different. On days like today when it’s

dry and the sun is shining, there’s not a problem. The problem occurs with or without the spring pulses when we get unusually large

rainfall events in the lower basin.

Mr. MORAN. Mr. Gould, you indicated that the Risk Management

Agency feels comfortable that no flooding will with the release

pulse that the Army Corps of Engineers intends to discharge the

water. And Mr. Cieslik just indicated there be will not be farm

ground flooding unless there was some other cause which appears

to be natural.

With that, therefore, can we reach the conclusion that if farm

ground is flooded, that crop insurance would cover that damage?

Mr. GOULD. Well, I would say given those assumptions, that the

Army Corps’ release of the pulses would not cause flooding, then

obviously, if there is flooding, it’s going to be affected by some natural cause. One would expect that that’s excess rainfall, so if it is

excess rainfall, then the damage would be covered under the term

of the policies.

Mr. MORAN. Thank you, Mr. Gould.

I now recognize the gentleman from North Carolina Mr.

Etheridge.

Mr. ETHERIDGE. Thank you, Mr. Chairman.

Mr. Gould, let he me go back to that question to get a clear understanding. In your testimony, you said that crop losses could be

attributable to excess rain will be covered.

Mr. GOULD. Correct.

Mr. ETHERIDGE. How does RMA determine whether the rain is

excessive? And to add to that, if flooding occurs with rain, it is

automatically considered excessive, as you just said, correct?

Mr. GOULD. Correct.

Mr. ETHERIDGE. Do you measure by the number of inches that

fall or do you know how that’s done or do the river levels or ground

saturation play a role in it? I guess I would like to know what

RMA goes by to determine what excessive rain is, so that we will

know we are going to be covered, because I guess that is critical

point.

Mr. GOULD. Well, that’s a key question. The only problem is I

don’t have a key answer. I don’t know exactly how that procedure

is done. I would say that insurance companies are in the business

of responding to complaints and adjusting to them on an ongoing

basis and I know there is procedure to do that, but having not been

exposed or working in that area of the industry, I cannot reply specifically how that’s done. I’m sure we can get the answer and get

that back to you.

Mr. ETHERIDGE. If you would, I’d appreciate it. I think that’s one

of the key questions the farmers here would like to know. I cer-
12

tainly would like to know, because I think it affects any part of the

country. In testimony that’s going to be given later, it is argued

that RMA has covered losses stemming from other floods in the

past. Has RMA covered previous losses due to the flows and other

projects, to your knowledge.

And if so, what’s the difference between those and flood, as it’s

being termed? And if not, can you explain why people believe RMA

has covered such losses in the past?

Mr. GOULD. As I understand, and obviously, I was not there so

I’m going on what I was told and informed that one covered losses

from flooding before the flooding was caused by excess moisture,

heavy rainfall, even though it was upstream from the river. And

as I understand it, that’s the basis that was used to pay for those

crop losses.

Mr. ETHERIDGE. OK. Let me ask one final question, and then I’ll

turn it over to my colleagues.

How much flexibility do you or the Secretary have to cover losses

that are contributable to the policies, or is this pretty much set in

stone in the law? Are there flexibilities that are available to the

Secretary or RMA, or is it going to take legislative action?

Mr. GOULD. Well, essentially, there is some confusion about that

language in the statute. It says something to effect of at the Secretary’s discretion. We’ve looked at that language very carefully

and counsel has determined that that language refers only to the

further clarification of natural disasters. So, again, the key sentence or key verbiage in the statute is natural occurring losses or,

in this case, I think most of us are concerned about excess moisture

or excessive rainfall.

Mr. ETHERIDGE. OK. Thank you, Mr. Chairman.

Mr. MORAN. The Chair will recognize the gentleman from Missouri, Mr. Graves.

Mr. GRAVES. I have a couple of questions. My biggest concern,

just so everybody knows, I’m completely against the spring rise and

have been from the beginning. Interior drainage has more importance than anything. Once you raise the river, you raise the river

and back up all the tributaries that flow into it, and a lot of those,

we don’t have the protection of low moisture along the tributaries.

And my question, I guess to both of you is, was that taken into

account, was that studied when it comes to interior drainage? And

the same thing. How do you determine if it was spring rise for natural occurrence when already backed water up again. Again, folks

know if you back that water up, the floodgate’s closed and you’re

not going to let water and if you have interior, whatever the case

may be, that water won’t get out. It’s going to you. I don’t know

if you took that into account or that was studied.

Mr. CIESLIK. Sir, the Corps of Engineers definitely took that into

account. As you know, we’ve been studying this issue since the

early 1990’s, and we’re well aware of the interior drainage problems. Myself and the leadership of the Corps of Engineers have

been out on the ground with farmers for many years. They’ve

shown us the sites, they’ve explained to us the probably. We understand, and that is one of the key reasons why we worked with U.S.

Fish and Wildlife Service to maintain the downstream plans for

2006.
13

And, of course, we have the benefit of being in a drought, so to

speak, in this regard, and the fact that we’re low on navigation releases so there is more room, if you will, to put in a spring pulse

before we get up to those critical elevations that close those drain

structures. So in one sense, even though the drought has had some

very definite negative impacts throughout the basin, in this regard

it helps us in the fact that the river is lower. We’re allowed to adjust the latitude of the spring pulse in May for the drought conditions, so we’re able to reduce the magnitude down to a level which

will be probably around 10,000 cubic feet per second in May, if indeed it occurs at all.

As you know, the difference between minimum service navigation

and full service navigation is about 6,000 CFS, so in a drought like

this we’re talking about fairly modest difference between what you

would see in full navigation and a May pulse. Now, that doesn’t

mean that’s always the case in normal times when you go up to

full service navigation. Obviously, it’s going to be more of a concern.

There is also a concern, I must admit, with the downstream flow

limits. When we get to more normal times, they will tend to shut

off the spring pulses. You may not see that as a problem, but the

folks that want the frequency of the spring pulses for the pallid

sturgeon see that as a problem. And so that’s going to be an ongoing discussion.

And I said we’re working with the plenary group to try to address these issues. We’re actually going to go out and collect a

whole bunch of data on the drainage structures in Missouri and all

the way up and down the river in Nebraska, Iowa, Kansas, and

we’re going to try to figure out exactly how a change in those downstream flow limits will impact the drainage problem.

So we’ve heard the agricultural interests. We’re working on the

issue. We think we’ve taken the steps we can to minimize the impact in the short term, and are working to minimize the impact on

the long term.

Mr. GOULD. Thank you, Mr. Graves. As I understand your question, you’re concerned that if we have increased excess moisture

caused by the release of the pulses, and then excessive rain, what

happens then?

Mr. GRAVES. Well, if you got water backed up in the interior

drainage because of a pulse or spring rains comes down and if you

get rains that we’re going to have that causes flooding, is it because

the flood or is it because of the rain.

Mr. GOULD. Well, I would say in that case, we could determine

that cause on the Corps data, but I think if the ground is just sort

of wet and we get excess moisture, then I would think that is going

to be caused mostly by excessive rainfall or excess moisture. And

obviously, if we get the situation where it’s a little bit in between

and there are maybe instances where the crops or the ground does

not flood but there is excess moisture, then you get into preventive

planning scenario and, again, the policy has some provisions for

that.

Mr. GRAVES. Is that spelled out in the handbook, sort of wet.

Mr. GOULD. I suspect it’s a little more technical than that.
14

Mr. GRAVES. That’s what worries me. I guess it’s the big unknown and it worries me to death to hear things like that.

Mr. GOULD. Well, I planted 42 crops of corn. I understand the

concern when conditions are not right and it’s always a problem

when you go or don’t go. Is it good enough today or is it going to

be better tomorrow or is it going to be worse tomorrow? And I

think that’s a serious issue for farmers and I relate to that.

And, again, I don’t know the technicalities of how we administrate preventive planning, but we’ve been doing it for a lot of years

and a lot of acres of crop land, and I’m sure there’s methodologies

that are sound and we’ll continue to do so.

Mr. MORAN. Thank you, Mr. Graves.

The Chair will recognize the very distinguished gentleman from

Missouri, Mr. Skelton.

Mr. SKELTON. Mr. Chairman, thank you very much. And, again,

thank you for being with us today and a special thanks to Mr.

Etheridge. Kenny Hulshof and I both appreciate you holding this

hearing.

Mr. Gould, Mark Twain of Missouri once said, the more you explain it to me, the more I don’t understand it. I have to tell you

I’m having quite a bit of difficulty understanding your response to

Mr. Etheridge’s question. When you said that the crop losses attributable to excessive rain will be counted if flooding occurs with rain

is automatically excessive. And your answer was you’d get back to

us. That’s one of the two purposes of this hearing, Mr. Gould.

Let me give you a hypothetical, if I may. On the Armed Services

Committee, we deal in national security. Suppose a terrorist were

to bomb one of the dams up river, and as a result of that, at the

same there was rain, and there was extensive flooding here in the

State of Missouri. Would that be covered by the Risk Management

Agency?

Mr. GOULD. Obviously, that’s a very extreme example.

Mr. SKELTON. Just answer my question.

Mr. GOULD. Right. In that case, I’m assuming we would be covering the loss that is attributed to by the rainfall and not by unnatural causes. Again, we have to keep coming back to the key verbiage

in the policy where we have a duty to pay losses on natural losses.

Mr. SKELTON. The key verbiage in the law gives the Secretary

leeway; am I correct?

Mr. GOULD. I’m sorry, but I probably do not agree with you. As

we’ve checked with our counsel and scrubbed that language——

Mr. SKELTON. I’m a country lawyer, too, and I can read the

English language. It says, ‘‘as determined by the Secretary’’. That’s

obviously discretionary and gives him leeway, does it not?

Mr. GOULD. Our interpretation from our counsel indicates that

that discretion refers to further definition of natural causes. And

that is—unfortunately, we’ve looked at that language very carefully, but again, it refers to a further definition, further refinement

of natural causes.

Mr. SKELTON. Well, I hate to prolong, but, Mr. Gould, we’re looking forward to your written answer to Mr. Etheridge’s question regarding what is considered extensive.

Mr. Cieslik, I have a question for you. The Corps of Engineers

canceled the March spring rise; am I correct?
15

Mr. CIESLIK. Sir, it hasn’t been finally determined.

Mr. SKELTON. You put out a news release.

Mr. CIESLIK. Sir?

Mr. SKELTON. Did you not put out a news release.

Mr. CIESLIK. The March pulse determination is tomorrow. The

361⁄2 million acre feet preclude level is staked on one March. I will

tell you that the system storage rate right now stands at 36.3 million acre feet below preclude level, so it looks unlikely we will have

the March pulse.

Mr. SKELTON. You did put out a news release; am I correct?

Mr. CIESLIK. I don’t believe so. That’s been canceled, sir.

Mr. SKELTON. How did Associated Press report this?

Mr. CIESLIK. Sir, they asked me a question yesterday, and I told

them it was unlikely. It has not been canceled, but they asked me

personally the question and I said it was unlikely. I have not read

the article yet, may have been a misquoting, but I told him exactly

what I’m telling you today, sir.

Mr. SKELTON. I find it interesting that occurred a day before this

hearing. Thank you.

Mr. MORAN. Thank you, Mr. Skelton.

My friend and colleague, a gentleman from Missouri, Mr.

Hulshof.

Mr. HULSHOF. Thank you, Mr. Chairman. It’s not often that welcome Kansas here in Missouri. But I see you’re sporting your Missouri tiger tie and I do welcome you.

Mr. Gould, if you’d pull the microphone up there, let’s bring this

down to brass tacks. And unforeseen thunderstorm that dumps 8

inches of rain and causes flooding will be covered by crop insurance, but a premeditated flood cost to Missouri taxpayers by the

Government they fund will not be covered; is that correct?

Mr. GOULD. If you take both of those extremes, that is the way

the policy reads, that it would cover natural occurring events.

Mr. HULSHOF. Is that fair?

Mr. GOULD. I have an opinion, but it would be my personal opinion. But I think you have to realize that all of Federal crop insurance, the whole basis of crop insurance is insuring natural causes

of loss. And that as tough as it may be, it may not be fair and it

may not be equitable, but that’s the basis of Federal crop insurance

and that’s what the policies are rated on.

And there is other problems across the United States that are

not exactly the same, but are caused by manmade events, so the

water releases or drought caused by water being taken to another

use, other than agriculture, the thing we have to continue to look

at—and again, it may not be fair—that is, cover natural losses.

Mr. HULSHOF. Mr. Gould, I’m like you. I’m a farmer, and I farm

about 700 acres in Mrs. Emerson’s district. There are a lot of farmers that are here that are farmers in the Missouri River bottoms.

Given that stance, what encouragement can we give to farmers to

purchase crop insurance? We revamped the crop insurance program some years ago with Congress, and the idea was that we

want farmers to provide their own risk management.

Is this policy one that you truly believe is going to encourage

farmers along the lower river valley to purchase crop insurance?
16

Mr. GOULD. Well, I think so. Again, it looks like the risk of damage due to the release of the spring pulses is minimal, and so if

there going to be losses, it’s going to be caused by a natural occurring event and so, therefore, it would seem that if a farmer has

bought crop insurance for the risk of flooding or preventive planning, he would continue to do so.

Mr. HULSHOF. It looks to be minimal. Mr. Cieslik has said this

year. I can’t believe we’re being thankful there’s a drought. But

even as we meet here today, in Omaha, Mr. Cieslik, as you know,

there’s discussion about the planning of the 2007 spring rise. In

fact, some have called for the rise next year to be twice the

strength and 10 times the duration.

Mr. Cieslik, let me ask you a question about this.

The Corps did an economic impact analysis, did they not?

Mr. CIESLIK. Yes.

Mr. HULSHOF. Didn’t the study take into account the fact that

crop insurance would not be able to compensate on this issue.

Mr. CIESLIK. No, sir. The first time we were informed that was

and issue was last November, during our annual operating plan

meetings.

Mr. HULSHOF. And that was first instance that the Corps of Engineers learned that this policy was—this decision was made.

Mr. CIESLIK. That this was an issue, yes, sir.

Mr. HULSHOF. I want to associate myself with my friend and colleague from the sixth district on the spring rise, but time doesn’t

permit me to engage in a discussion about the spring rise. Let me

put this question to you. Somebody along the way decided the pallid sturgeon was worth saving. The reservoirs hold 36-and-a-half

million acre feet, but not up to 33 million acre feet. Isn’t the 361⁄2

million acre feet a fairly line?

Mr. CIESLIK. The 361⁄2 million acre feet came about by looking

at what the likelihood would be of having the spring pulse this

spring. The Fish and Wildlife Service indicated to us that they

wanted to see the spring pulse, obviously, occur in 2006, that there

hadn’t been a spring pulse in many, many years attributable to the

mainstem reservoir system. So we talked in great detail with them

about what this level should be.

The plenary group strongly suggested 40 million acre feet, but

looking at our data, it was apparent that 40 million acre foot preclude level was probably higher than we were going to reasonably

expect in 2006, so the Fish and Wildlife Service could only accept

361⁄2 million acres.

Mr. HULSHOF. Thank you.

Mr. MORAN. Thank you, Mr. Hulshof.

My colleague and friend from Missouri Mrs. Emerson.

Mrs. EMERSON. Thank you, Mr. Chairman. And welcome from

another Missourian. I will pose my question to both of you, if I

could. In my congressional district, which is downstream on the

Mississippi River, anything in excess on the Missouri River obviously comes down my way.

But anyway, when that whole project is put into place and farmers lose the ability to produce the variety of crops than usual, then

the Corps must pay for the difference between, oh, let’s say, profitability of corn production as compared to soybean. And one specific
17

example would be the St. Johns project down in my district, where

land is to be flooded during the late spring, and so the Corps is

now being forced to buy easements up to certain elevations. And

since the land can’t now be used for high value production, my

question to you, then, is, if you take—in this particular instance,

on the Missouri, if you take away the value from the farmers, who

is going to be pay the difference, the Corps, RMA, who?

Mr. CIESLIK. The Corps of Engineers has no authority that I

know of to compensate agricultural interests for flood damage. The

mainstem reservoir system provides a vastly better flood control

situation than was in place prior to this system being built. A lot

of farmland that is farmed all along the Missouri flood plain could

only be farmed economically with the Missouri River mainstem in

place. We’ve saved billions upon billions of dollars of flood damage

along the Missouri River.

When we operate for navigation, when we operate for water supply, any project purpose, there are residual flood damages that we

can’t control. We don’t have perfect control over the river, because

there is literally hundred of thousands of square miles of uncontrolled drainage area. We are not required, to my knowledge, to

compensate people for that residual flood control that we don’t

have.

Basically the spring pulse is also required by Federal law

through the Endangered Species Act, so like navigation water supply, there will be residual flood damage associated with this uncontrolled drainage area.

Mrs. EMERSON. Do you have any comment, Mr. Gould?

Mr. GOULD. Only to further reiterate what I have already mentioned; that is, if we get into a situation where there is excess rainfall or preventive planning, those issues are covered under Federal

crop insurance and—as described in our policies.

Mrs. EMERSON. OK. Let me just ask you, Mr. Cieslik, a quick

question. What was done with the public comments that were gathered on the whole Missouri issue, and what process does comments

play.

We had a constituent drive all the way from Nebraska to southeast Missouri for this, and they do not believe that any of the comments that they made were taken into account. So can you please

tell me?

Mr. CIESLIK. Yes. Specifically, we took comments on this year’s

plan and, also, a longer-term plan that’s going to be included in the

master manual for the spring pulses. And if you look back in history, we have been taking comments on the spring rises since 1994.

I think that the answer I would give your constituent is that the

changes we’ve made, the reduction and duration of the spring

pulses, the reduction of the magnitude during drought, the retention of the downstream flow limits, using the precipitation forecast

and actual precipitation in you runoff forecast to further protect

downstream lands.

This is all a result of the common we’ve received, not only in the

short-term here in the last year, but also over the last 15 years on

master annual review. Frankly, there is only so far we can go. The

biological opinion requires that we have a spring pulse in 2006 or

at least a plan for a spring pulse in 2006 and we think we’ve done
18

as much as we can, working with U.S. Fish and Wildlife Service

to address the impacts of the folks that told us about it along the

river.

Mrs. EMERSON. Mr. Cieslik, I assure you that my constituents

believe that you all have put the interests of the pallid sturgeon

and piping plover far above the interests of farmers and southwest

Missourians throughout the State.

Mr. CIESLIK. Yes, ma’am.

Mr. MORAN. Thank you. Mrs. Emerson is certainly part of the agriculture community, a member of Congress who cares about farmers and ranchers and is a member of the Committee on Appropriations’ Subcommittee on Agriculture, and we appreciate your input.

Mrs. EMERSON. Thank you, Mr. Chairman.

Mr. MORAN. The Chair recognizes the gentleman from Missouri

Mr. Akin.

Mr. AKIN. Thank you, Mr. Chairman, for allowing me to sit in

and join, even though I’m not actually on your subcommittee. And

just first of all, for the record, I have a statement that I’d like to

submit, if that would be OK.

Mr. MORAN. Without objection, so ordered.

Mr. AKIN. And then, also, to say I think it’s probably obvious

that I’m also opposed to the spring rise and don’t make any—one

of the things we talk about the Government sometimes is common

sense. I guess I’m kind of wondering about the fact that we’re sitting. First of all, we tax our citizens to build some dams, because

we want to control water flow. And then now that we’ve taxed

them, we built the dams, we turn around and we’re going to do this

spring rise thing.

And I guess the question I have is, I thought the purpose of the

dams originally was to prevent conditions that could lead to flooding, and also to help aid navigation. Somehow, the spring rise

doesn’t seem to constructive to either of those purposes for which

people were taxed. So I guess I’m wondering the—sort of the common sense of the policy to start with.

And the second thing was the—there is an insurance policy that

we have to protect people’s crops in case of these different hazards,

which are—some people call them acts of God or a whole lot of

rain. But then to contribute to that ourselves and say, but we’re

not going to cover when we’re the ones that engineered it, that

somehow seems contrary to common sense as well.

I guess, last of all, the gray area here, we’ve got the spring rise

coupled with a heavy rainfall. You’ve been questioned at some

length on that. I think you could be pretty precise in saying, this

is where we think the law is. But really, what I’m hearing the answer is, you’re saying, well, we’re just going to leave that to a court

someday in case it happens.

And I share the same concerns here. We may be OK this year,

we may be OK next year, but sooner or later this is going to happen, and for us to put something in the situation where we’re, well,

now we’ve got a big mess on our hands, something that we in a

sense created and we have to go to some court to figure that out,

that somehow doesn’t seem to be very sensitive to the taxpayers,

to your citizens in any of those regards, and I’d be happy if you

want to respond to that.
19

Mr. CIESLIK. Sir, if I could be in on the common sense associated

with the requirements of the Endangered Species Act, the Endangered Species Act requires Federal agencies to ensure that their actions don’t jeopardize the continued existence of federally listed endangered species. It sets up the U.S. Fish and Wildlife Service as

the biological experts in that regard, so their job is to advise Federal agencies like the Corps on the biology of the situation.

It’s incumbent upon the Corps of Engineers, then, to go and look

at impacts to stakeholders, to the authorized purposes for which

we’re charged. And so, we have to try to wicker in that common

sense into the equation. We have to listen to the constituents, as

Mrs. Emerson alluded to. Listen to the concerns, listen to the impacts, and then go back to the biological experts and say, what can

we do?

But obviously, there is a limit to what their science tell them

that can be done to get that common sense answer. But that’s the

best answer I have on that issue.

Mr. AKIN. That, I think, gets back to the whole question of the

Endangered Species Act and whether that’s maybe that’s common

sense. Maybe we need to take a look at that. Thank you.

Mr. MORAN. Thank you, Mr. Akin.

Mr. Skelton has follow-up question, and then we’ll turn to the

next witness.

Mr. Skelton?

Mr. SKELTON. Boils down, Mr. Cieslik, in your opinion, speaking

for the United States Army Corps of Engineers, which has priority,

the Flood Control Act of 1944, which causes the Corps to have

emission of navigation and fluid control, or the Endangered Species

Act.

Mr. CIESLIK. Sir, I’ll refer to the Eighth Circuit Court opinion recently that indicated there could be a situation where the requirements of the Endangered Species Act would force the Corps of Engineers to be in violation of the 1944 Flood Control Act, but I will

refer to that decision also that said the current master manual did

not reach the threshold. And I guess it’s our contention that at this

point, with this spring pulse plan that we have, that we are in

compliance with ESA and in compliance with the 1944 Act. But I

think the Eighth Circuit Court of Appeals recognized that there is

a threshold where you would hit that situation that you refer to.

Mr. MORAN. Mr. Gould, thank you very much. I look forward

hearing further from you at our hearing in March in Washington.

Mr. Cieslik, thank you for your comments.

Mr. MORAN. We now turn to our second panel, which consists of

Wayne Bryan, who’s the deputy chief counsel for the Missouri attorney general’s office. He is here on behalf of Missouri Attorney

General Jay Nixon; and Mr. Fred Ferrell, who is the director of the

Missouri Department of Agriculture. Thank you for letting us come

to your hometown.

Mr. Ferrell, I believe we’ll begin with you.

STATEMENT OF FRED FERRELL, DIRECTOR, MISSOURI

DEPARTMENT OF AGRICULTURE, JEFFERSON CITY, MO

Mr. FERRELL. I say good morning to you, Mr. Chairman, and

members of the subcommittee, welcome to Missouri.
20

My name is Fred Ferrell, director of the Missouri Department of

Agriculture. As I come before you this morning, I’m appreciative of

your attention to the policies set forth by USDA’s Risk Management Agency, known as RMA, regarding potential crop damage

caused by spring pulses set forth by the U.S. Army Corps of Engineers.

This department I am charged to lead has the following mission

statement: Serving, promoting and protecting the agricultural producers, processors and consumers of Missouri food, fuel, and fiber

products. Agriculture is Missouri’s largest industry, represented by

approximately $6 billion in farmgate production last year. Our

State is a national leader in beef, hay, turkey and swine production. However, our most important agriculture ranking is that

we’re second in the number of farms and farm families. This ranking is the one that I’m proudest of and the one I will fight the

hardest to preserve.

Agriculture is a challenging business, not unlike other industry

sectors. However, I cannot name another industry with a greater

level of risk adversity. In Missouri, as in many other States, our

farmers are reeling from the effects of a devastating drought, as

well as ever-increasing input costs and land values. These factors

are just a few examples of issues out of our immediate control that

place pressure on the diminishing profit margins of our constituents.

Despite these pressures, the Federal Government decided to

place another critical issue on the backs of the Missouri’s bottomland farmer through the implementation of the 2005–06 Annual

Operating Plan that calls for two spring pulses on the Missouri

River in March and May 2006. In the AOP, the Corps refers to the

plan as adaptive management, one tool to preclude jeopardy to the

pallid sturgeon. I’m here this morning to tell you that Missouri’s

bottomland farmers will be the ones placed in jeopardy by the unnecessary experiment to which Missouri remains fundamentally opposed.

To make matters worse, RMA has made clear that any losses in

crop production associated with the Corps’ proceedings cannot be

covered by Federal crop insurance policies. RMA states: ‘‘Given the

U.S. Army Corps of Engineers confidence that flooding is not expected to occur as a result of the releases, USDA does not anticipate that there will be any losses attributable solely to these releases.’’

This statement is very disturbing to me. Missouri officials have

advised at every occurrence that in the lower river basin, a natural

spring pulse takes place each and every year.

The effects of adding another 1 to 3 feet of water to our farmland

at a time when extra water is not needed could be devastating.

Crops could very well be destroyed, or at a minimum, costly delays

in planting could be created, leading to lower yield at harvest time.

These lower yields equate to a depressed farm income which, in

turn, hurts our communities and our State’s economy.

The Missouri River’s bottomlands are home to some of the most

fertile and productive crop land in our State, with river corridor

counties contributing one over $1 billion to Missouri’s economy.

This does not take into account the ripple effected created by sup-
21

porting industries such as transportation, livestock, grain handlers

and countless others.

I recently returned from Washington, DC, where the annual midyear National Association of State Departments of Agriculture

meeting was held. I’m here to inform you that NASDA support

Missouri’s opposition to the spring pulse on the Missouri River. At

my request, NASDA president Carlton Courter of Virginia sent letters to RMA and the Federal Crop Insurance Board of Directors,

advising that any crop losses caused by a Corps decision to intentionally flood the Missouri River should be covered by RMA. This

action is significant, as NASDA as a whole represents many constituencies and interest groups.

To conclude, I again want to thank you, Chairman Moran and

subcommittee members for hosting this hearing in Jefferson City.

I trust in your ability and judgment to do everything in your power

to ensure that our farmers, the most efficient in the world, are not

subjected to further undue harm.

Thank you.

Mr. MORAN. Mr. Ferrell, thank you on behalf of Missouri agriculture.

Mr. Bryan.

STATEMENT OF WILLIAM BRYAN, DEPUTY CHIEF COUNSEL,

MISSOURI ATTORNEY GENERAL’S OFFICE, JEFFERSON CITY,

MO

Mr. BRYAN. Thank you. I submitted a written statement for the

record, and if it pleases the Chair, I will summarize it this morning.

Mr. MORAN. That is welcome news, sir.

Mr. BRYAN. I regret that Missouri Attorney General Jay Nixon

can’t be with us this morning, but he did want to me to welcome

you to Jefferson City, Missouri and thank you for your time and

your concern on this important issue.

On November 23, Attorney General Jay Nixon first questioned

the impact that an artificial spring rise may have on the crop insurance coverage paid for by Missouri farmers. The specific question we asked was, will the Risk Management Agency exclude from

coverage losses caused or contributed to by the spring pulses described in the Corps draft Annual Operating Plan for 2006?

Surprisingly, despite 15 years of study by the Federal Government, it appeared to us that no responsible Federal agency had

ever considered this important question. Without Attorney General

Nixon’s initiative, it’s quite possible that the agencies never would

have considered how the Corps’ proposal disrupts the farmers’ safety net.

There are three important considerations this committee should

take into account. First, the spring pulses are expressly intended

to mimic nature. Whenever a Federal action has a purpose to imitate a natural occurrence in order to satisfy the Endangered Species Act, we believe it’s well within the Secretary’s discretion to determine that that is a natural occurrence for crop insurance purposes.

Second, if we assume that the spring pulses are not natural occurrences because they are caused by intentional releases of water
22

from Federal dams, as Mr. Hulshof indicated, it simply isn’t fair for

the right hand to do what the left hand is trying to ensure to take

that coverage away from Missouri farmers.

Most importantly, actual flooding isn’t our only concern. This

misbegotten policy is a problem for the farm economy, even if there

is no actual flood. This is a starting point. In the future, with the

revisions of the master manual, we have grave concern over what

will happen next year and the years to come.

And in addition, the mere prospect that there are uninsured

losses could occur has a potential effect of the farmer today. Our

smallest producers may be affected in their ability to get credit and

plant a crop at all. At a minimum, it will make farming more financially difficult for our smallest producers.

Again, despite 15 years of study, the Corps has not taken the potential consequences of the farm safety net into account. This is

something that we’ve seen time and again. The Corps has carefully

studied water conservation, power generation, navigation and even

the reproduction of minnows to support fishing in the Dakotas, but

it has never adequately considered the impact of this operation on

agriculture. This failure is but one more example of the Corps’ institutional blind spot regarding agriculture.

Accordingly, although we remain convinced that the spring pulse

plan is wrong for many reasons, the Corps certainly should not implement the plan without mending the farm safety net and fully

considering this issue in a fair and open way. If, as these Federal

agencies contend, the spring pulse experiment is an action under

the Endangered Species Act to benefit the Nation as a whole, then

the burden should be borne by the nation, and not by Missouri bottom farmers alone.

Thank you, Mr. Chairman.

Mr. MORAN. Mr. Bryan, the attorney general’s Office has examined the crop insurance contracts. Do you agree with the law outlining—we’ve heard a lot about the Secretary’s discretion. Did you

reach a conclusion as to legally if there is coverage by crop insurance through the Risk Management Agency?

Mr. BRYAN. Yes, we did. We examined the policies and the basic

provision, with the assistance of our Department of Insurance, here

in Missouri. And we also looked at the law. When we wrote the letter, we fully expected to hear that it was within the discretion afforded the Secretary to cover these losses, because we were trying

to replicate a natural event.

There didn’t seem to be any difference to us between an actual

natural event and one we were trying to replicate to protect endangered species. So we thought that these losses would be covered.

Mr. MORAN. Thank you for whatever role the Missouri Attorney

General played in bringing this issue to light. I think it’s an important one and it may be very much broader than just what happens

in Missouri in 2006, with the anticipated—well, we hope the

drought comes to an end in the near future. The consequences may

be entirely different in a future year.

And with other instances in the central valley of California,

Clamet Falls, there is just seems to be there are serious—and Mr.

Skelton’s point about terrorist attacks, things that probably have

not been well thought out as to who might be responsible for the
23

consequences of manmade disasters. So thank you very much for

your testimony here today. Thank you for being with us.

I yield to Mr. Hulshof.

Mr. HULSHOF. Thank you, Mr. Chairman.

Welcome, gentlemen. Mr. Bryan, good to see you after Saturday

at the association meeting. I appreciate your comments.

Mr. Ferrell, as always, you’re doing a great job for Missouri agriculture. I guess really I have just a comment to follow what Mr.

Bryan had to say.

The fact is that the Missouri River already has, on 600 miles of

the river, a natural spring rise. And yet, we have not seen a discernible improvement in the habitat of the pallid sturgeon. In fact,

the hundred miles below the Gavins Point Dam is the only place

along the Missouri that doesn’t have a natural spring rise.

And after my testimony and your comments Saturday, I was reminded by one of the scientists in the room that the Mississippi

River, Mrs. Emerson, along that 1,000-mile stretch of the Mississippi, there is a natural spring rise and yet there has been no

discernible improvement for the habitat of the pallid sturgeon.

And so I only say that, again, I recognize our previous panel is

still in the room. The signs—this is a science experiment, and it’s

our farmers and river stakeholders on the Missouri river bottom

are the ones that are going to be adversely affected. And I finally,

as I finish my rant, Mr. Chairman, we’ve heard from the previous

panel that only acts of God shall be covered as far as crop insurance.

And I respectfully submit, and meaning no disrespect to anyone

in the room, that we know individuals within the Federal Government who often deem themselves to be the equal to the Almighty.

Perhaps we should consider that, as far as the coverage of crop insurance.

Mr. MORAN. Thank you, Mr. Hulshof.

Gentlemen, ranking member, Mr. Etheridge.

Mr. ETHERIDGE. Mr. Bryan, I know the farmers in Missouri

greatly appreciate the leadership in this area and, No. 1, bringing

the problems to the attention of the Corps, RMA and to this commission. And you have touched on this, but do you still feel there

are legal avenues for the farmers to the State to address this problem.

Mr. BRYAN. If it comes to it, there are legal avenues available to

farmers. We’ve looked at whether the State could take action to

protect our farmers, and I think that we’ll have a problem doing

that, because it’s not likely we’ll be able to show an injury to the

State and have standing in Federal court to do this. So I think it

would be incumbent on individual farmers to pursue their insurance to get this paid, and that’s unfortunate. We’ll try to do that,

but I’m not confident we can.

Mr. HULSHOF. Thank you. I’ll hand the balance of my time to Mr.

Skelton.

Mr. SKELTON. Thank you so much, Mr. Etheridge.

Mr. Bryan, being a small town and country lawyer in Lexington,

in reading the section 508.81, the verbiage, as determined by the

Secretary. Does that mean anything to you regarding giving the

Secretary leeway in granting relief to the Missouri farmers?
24

Mr. BRYAN. Yes. Yes, I concur with your assessment. That is an

indication of discretion, and it can help the Secretary define what

is a natural occurrence. I think it does provide some leeway here.

Mr. SKELTON. If those words were not there, what would the law

mean?

Mr. BRYAN. If those words were not there, then it would seem

to be a mandate from Congress to the Secretary on how to do his

job with job without his without his input, his discretion.

Mr. SKELTON. But the words are there; are they not?

Mr. BRYAN. That’s correct.

Mr. SKELTON. Thank you.

Mr. MORAN. The Chair recognizes the gentlewoman from Missouri Mrs. Emerson.

Mrs. EMERSON. Thank you, Mr. Chairman, and thank you all

from us for being here. And my question to Mr. Bryan is going to

be same as yours, Mr. Chairman, so I will not repeat it, but I do

have a question for Director Ferrell, and I want to ask you about

potential losses from flooding, but I kind of want to do it in a different way, if you will indulge me.

The potential of Government-induced flooding has kind of

brought to mind the whole takings clause of the fifth amendment.

And I understand the Supreme Court has set a significant bar in

finding inverse combinations from temporary flooding, but this particular clause of the fifth amendment is that this is the same, as

far as the disagreement. As a matter of fact, as Justice Black has

so openly stated, if I might quote, ‘‘at the heart of the taking lies

the premise the Government should not force some people alone to

bear burdens which in all fairness and justice should be borne by

the public as a whole.’’

And I think that’s a pretty good description of the situation we

find ourselves in today. Clearly we have Government action with

the release of water. As in most things, timing is key in farming

as well. So, Director Ferrell, can you shed some light to all who

would work under the potential economic impact for the soybean or

corn farmer, who has to either delay planting for a few weeks because of this manmade flood or even replant due to the flood, the

potential economic loss.

Mr. FERRELL. Before I answer that, Congresswoman, I would like

to add that I spent 25 years as chairman of the Farm Credit Board,

which does risk assessments every spring. And with a considerable

amount of our farmers located in the bottom land, one of the requirements we had, based on a person’s viability, was the fact of

if you should carry crop insurance.

Now, as a tool, if crop insurance is denied them, that will affect

not only their insurability, but their ability to get a loan based on

agriculture credit, so now we have impaired the very farmers that

we have incented to buy the insurance. That is unconscionable that

we would take insurance as a tool and use it as a negative for the

farmers to be able to secure a loan.

The impact that a spring rise will create is a lot of the times if

we don’t get a flood, the seep water that comes though the levee

delays our planting considerably, and this creates a real impact for

us because of the loss of time and time lease and agriculture plan-
25

ning and soybeans means our renewable will exponentially be

lower.

So, as a result, if they hold that river up for us an extended period of time, that creates a severe economic loss to us. Because

there is an optimum time to plant soybeans in the State of Missouri that shows from north to south, and if you get out of your

window, every day that you miss your planting opportunity of peak

time, it costs you a bushel per day. As you move down to the next

one, that equates to $6 per bushel per day.

So the economic loss, it also changes your planting intentions

from—if you have your fields slated for corn, now you have to

switch to soybean because you ran out of time to be able to plant

your crops. I’ve lived and watched that river, as Representative

Hulshof has, and in our farming, dirt’s a requirement.

We were living about 5 miles of one another, and I’ve watched

that river my entire life, lived for these corn crops, as was repeated

to you before, and I can assure you that the river not only affects

the farmers next to it but exponentially the farms that are 15 miles

away because of the level of underground water or seep water create a problem for us. So we’ve got to get that river down for us to

be able to plant our crops up and down this river.

And, as I stated to you before, there’s a billion dollars’ worth of

crops along the river bottoms. So this is not just a small issue to

the State economy. So insurance, to us, on our farms, is one of our

third biggest costs. And when you look at what we pay for insurance, surely it ought to cover us if we have a loss. So our insurance

might——

Mrs. EMERSON. Well, I appreciate that, Director Ferrell. And Mr.

Chairman this is a taking of property rights without due process,

and people, especially our farmers, are going to end up being the

endangered species if actions like this are allowed to stand. Thank

you very much.

Mr. MORAN. Thank you, Mrs. Emerson.

Mr. Bryan, you heard Mr. Cieslik’s testimony about the Endangered Species Act and its role in your management of the Missouri

River. Is there, from a legal conclusion, the Corps operating as required by law in regard to meeting the Endangered Species Act

and the ultimate release of the pulse.

Mr. BRYAN. That remains to be seen. The Endangered Species

Act, it did provide a current summary. It prevented the Corps from

taking actions that would jeopardize the pallid sturgeon, but the

evidence that not doing this spring pulse would jeopardize the pallid sturgeon is far from conclusive, and it’s quite likely that that

will be determined by the courts in the future.

Mr. MORAN. Thank you very much. I appreciate this panel’s testimony,.

Mr. FERRELL. Thank you very much for hearing us today as well

as Mr. Bryan.

Mr. MORAN. The committee will now turn its attention to our

third panel. Mr. Terry Hilgedick, president of the Missouri Corn

Growers Association, Tom Waters, chairman of the Missouri Levee

and Drainage District Association, and Mr. Randy Asbury, executive director of the Coalition to Protect the Missouri River.

Mr. Waters, we’ll start with you.
26

STATEMENT OF TOM WATERS, CHAIRMAN, MISSOURI LEVEE

AND DRAINAGE DISTRICT ASSOCIATION, ORRICK, MO, ON

BEHALF OF THE MISSOURI FARM BUREAU FEDERATION

Mr. WATERS. Thank you. Good morning. My name’s Tom Waters.

I’m a seventh-generation farmer from Raytown, Missouri. I own a

100-acre family farm in the Missouri River bottoms near Orrick,

Missouri. Today I’m proud to represent the Missouri Farm Bureau

Federation, the State’s largest general agriculture organization.

In addition to being a proud Farm Bureau member, I serve as

the chairman of the Missouri Levee and Drainage District Association, where I represent farmers, landowners, businesses, and others

interested in the issues surrounding the Missouri River and it’s

tributaries. I’m a member of the Missouri-Arkansas River Basin

Association Board of Directors, and serve as president of three local

levee and drainage districts, which combined, encompass over

20,000 acres of Missouri River bottom lands.

Mr. Chairman and members of the subcommittee, I want to

thank you for this opportunity to provide testimony regarding the

Missouri River. The Farm Bureau especially appreciates your willingness to address the impact of the spring rise on our State’s

farmers and ranchers and has asked me to share my thoughts with

you regarding the U.S. Army Corps of Engineers’ plans for increasing flows of the Missouri twice during Missouri’s spring planting

season.

I’m here to talk about intentional flooding. Yes, intentional.

Make no mistakes, intentional flooding is what we are all here to

talk about. Some refer to it as an increased flows. Some call it

habitat enhancement. Some call it a spring rise. But what we are

really talking about is intentional flooding.

U.S. Army Corps of Engineers and the U.S. Fishing and Wildlife

Service representatives would tell you they do not want to intentionally flood anybody. But don’t be so sure. Listen to this exchange

between U.S. Attorney James Maysonett and Federal Judge C.

Arlen Beam. Keep in mind, Mr. Maysonett is a Federal attorney

representing both Fishing and Wildlife Service and the Corps of

Engineers.

This exchange look place last year on April 11, 2005 in the case

of American Rivers v. The U.S. Army Corps Engineers. Again, what

we’re discussing today is intentional flooding. If you think the

spring rise is anything less, pay close attention. This is now the

record of Eighth Circuit Court of Appeals in St. Louis.

U.S. Attorney James Maysonett: I think what the record shows is that these are

relatively new ideas. The idea is, to wit, for example, operations of Missouri systems

dams and reservoirs to intentionally flood. That is, to create a spring rise.

Judge Beam: Step back just a second. You said the spring rise, and I hadn’t focused on this, would intentionally flood?

Mr. Maysonett: Yes, Judge Beam, that is correct. That’s part of the concept of the

spring rise is that historically, the flooding of the river will obviously have a lot of

negative effects. Also have positive effects for the endangered species.

Judge Beam: I think that reading the Pitch and Sloan Plan and living through—

old enough to live through part of the political ramifications—that if there was anything Missouri River maintained dams were supposed to do is to control flooding.

So, if there is a priority somewhere hidden in the statutes, I think it’s flood control.
27

It’s become increasingly clear that the course planned for the

spring rise would be to now intentionally flood the Missouri River

bottom lands.

Apparently the Corps of Engineers and the U.S. Fish and Wildlife Service do not share the same view of this U.S. Circuit Court

of Appeals judge. Representatives from both agencies describe this

spring pulse as a means to connect the river to the flood plain.

They tell us the purpose of the spring pulse is to provide some semblance of a natural hydrography, which historically inundated the

flood plain.

The reason the maintained reservoir system was built was to

protect against the inundation of the flood plain. In their opinion

findings of the April hearing, the Eighth Circuit Court of Appeals

clearly stated, the 1944 Flood Control Act has been interpreted to

hold flood control and navigation dominant and recreation and fish

and wildlife secondary.

The Corps of Engineers’ 2006 Annual Operating Plan ignores the

court’s opinion and includes two opportunities to cause intentional

flooding along the river. I fully expect without changes, future and

operating plans will include even greater threats to bottom land

farmers as the Corps increases flows.

As we debate merits of intentional flooding, let us understand

we’re not just discussing the economic issue or scientific issue. The

issue of intentional flooding one’s property or bringing harm to another is a moral issue. I, for one, believe it is morally wrong to

ever, ever intentionally cause flooding. Flooding is wrong, regardless of how many scientific data or economic information is presented, it is still, and always will be, morally wrong to flood people.

This spring rise decision strictly boils down to a black-and-white

decision about what is right and what is wrong. Much has been

said in recent weeks about how crop insurance relates to the spring

rise. It is amazing how far the Corps of Engineers would go to implement a spring rise without taking a closer look at crop insurance issues.

Crop insurance is one of the most important tools farmers have

to help manage risks to their farming operations. Risks associated

with the spring rise and the possibly of crop insurance failing to

provide coverage is unacceptable, and it should be better taken into

consideration by the Corps of Engineers.

It’s my hope this hearing will shed some light on the dangerous

direction the Corps of Engineers is taking in planning to intentionally flood the lands along the Missouri River. I’m grateful for

Congressmen Hulshof and Skelton, that they’ve seen the need for

this hearing, and thank you for this opportunity to share my

thoughts. On behalf of the Farm Bureau, I appreciate your time

and willingness to serve as representatives in Congress.

Mr. MORAN. Mr. Waters, thanks very much.

Mr. Asbury.

STATEMENT OF RANDY ASBURY, EXECUTIVE DIRECTOR, THE

COALITION TO PROTECT THE MISSOURI RIVER

Mr. ASBURY. Mr. Chairman and members of the subcommittee on

General Farm Commodities and Risk Management, and ladies and

gentlemen of our distinguished Missouri congressional delegation.
28

I am Randy Asbury, executive director for the Coalition to Protect

the Missouri River. CPR represents a diverse group of agricultural,

investigational, utilities, industrial and business-related entities,

all of which are Missouri River stakeholders. We support responsible management of Missouri River resources and the maintenance of congressionally authorized purposes of the river, including

flood control and navigation.

A serious problem has created the need for this crop insurance

hearing this morning, and it is called the manmade spring rise. As

the foundational issue of that which confronts us in today’s hearing, I would like provide some history regarding the manmade

spring rise.

In 1990, the U.S. Army Corps of Engineers conducted its first

consultation with the U.S. Fish and Wildlife Service on the effects

of its Missouri River operations on endangered and threatened species, pursuant to the Endangered Species Act.

In 2000, the Corps again consulted with the Fish and Wildlife

Service in producing the 2000 Biological Opinion that concluded

that the Corps’ proposed river operations for 2000 were likely to

jeopardize two birds, and most notably for today’s discussion, the

endangered pallid sturgeon. The pallid sturgeon is described as a

prehistoric-looking fish that purportedly needs a manmade spring

rise to act as a spawning cue.

Ironically, a naturally-occurring spring rise resulting from rain

events and snow melt is almost annually found on the lower 600

miles of the Missouri River. The manmade spring rise, on the other

hand, would occur as water is artificially released from Gavin’s

Point Dam, the lowest dam on the Missouri River mainstem system, onto water already in the river channel below Gavin’s Point

Dam because of poor operations and lower national precipitation

events.

Its purpose, according to the Fish and Wildlife Service, would be

to provide a more natural hydrography that is supposedly more to

the liking of the Sturgeon. The 2000 Wildlife and Corps opinion includes a reasonable and prudent alternative for the pallid sturgeon

that recommended manmade spring rise designed to avoid jeopardy

for the sturgeon.

The Corps again consulted with the Fish and Wildlife Service in

November 2003, creating an amendment to the 2000 Biological

Opinion. That Opinion concluded that jeopardy would result for the

Sturgeon and proposed that new reasonable and prudent alternatives that again mandated the manmade spring rise. Consequently, we find ourselves on the brink of not one, but two manmade spring rises to occur in March and May of this year.

The stakeholders we represent have steadfastly opposed manmade spring rises since the early 1990’s, as the plan is based on

inadequate and unproven science, has not been properly analyzed

for its socioeconomic impact, and generally ignores downstream interests. Because poor science forms the basis of the manmade

spring rise mandate, the Missouri River has become an experiment-driven river. The haphazard nature of the experiment-driven

river produces unreliability and socioeconomic hardship.

The United States Geological Survey scientists have confirmed

that pallid sturgeons are spawning in the Missouri River without
29

a spring rise, manmade or natural. Given that revelation, the

issues discussed today and precipitated by the artificial spring rise

are unnecessary when we know that USGS scientists point to factors such as temperature and photoperiod as more advantageous to

Sturgeon spawning than a manmade spring rise.

Moreover, the August 2005 Eighth Circuit Court ruling affirmed

flood control as the dominant function of the Flood Control Act of

1944 of the Missouri River Mainstem Reservoir system. The court

also stated that, ‘‘. . . it follows that if future circumstances

should arise in which Endangered Species Act compliance would

force the Corps to abandon the dominant Flood Control Act purposes of flood control, the Endangered Species Act would not

apply.’’

The spring rises have the distinction of becoming an experiment

without a conclusion. No baselines exist to gauge the success or

failure of the experiment; therefore, we can arguably anticipate

their failing and larger rises released in the future in the name of

science. Larger rises almost certainly expose our producers to adverse economic risk by overtopping of levees and interior drainage

problems. Such occurrences would cause us to seek Federal compensation packages to make all with crop losses whole, regardless

of whether they had crop insurance.

In the meantime, we continue to work with the administration

to address this insurance issue. Moreover, we continue to evaluate

the $85 million proposed by the administration for ESA recovery of

the river. We have serious reservations regarding those funding

levels for experiments not based on sound and independent science.

I appreciate the opportunity to express the frustration we face having to address issues that arise from the ill-conceived manmade

spring rise. Thank you.

Mr. MORAN. Thank you.

Mr. Hilgedick, from the Missouri Corn Growers Association, welcome.

STATEMENT OF TERRY HILGEDICK, ON BEHALF OF THE

MISSOURI CORN GROWERS ASSOCIATION

Mr. HILGEDICK. Thank you, Mr. Chairman. My name is Terry

Hilgedick. I will be presenting testimony on behalf of the Missouri

Corn Growers Association. I proudly serve as president of the organization and am here representing over 15,000 Missouri corn farmers.

My family farm is just 12 miles from here in a small river town

known as Hartsburg. I therefore bring a rather unique perspective

to the issue that perhaps bureaucrats can’t correct. One-hundred

percent of our farm lies in the fertile Missouri River Valley. We endured a severe drought in the year 2005. We went 60 days without

rain. Many days there were over 100-degree temperatures during

the most critical time for crop development. Yet we collected zero

dollars from the USDA Federal Crop Insurance. You make ask

yourself, why do those guys carry crop insurance?

Flood risk, and flood risk alone is the only reason we carry it.

It is imperative that we have coverage for our number one peril

prior to March 15. RMA has said that they will go up and down

the basin after the flood event and make the thousands of deter-
30

minations of what policyholders are covered and what policyholders

are not.

That is a Pandora’s Box that should never be opened. That is like

buying homeowner’s insurance on your house when fire is not covered, yet your agent winks and nods at you and says, it probably

won’t burn, and if it does, maybe we can work something out later.

The battle over the spring rise has been raging for 15 years and

counting. I would back up and refer to Mr. Cieslik’s comments on

duration for the rise and magnitude. He was referring to the 2006

rise. And as Congressman Hulshof pointed out, the 2007 and beyond rises are much more severe and much more aggressive.

I have personally testified in opposition on eight different occasions through the years. The State of Missouri has opposed the

spring rise for all of the 15 years to date and will continue to do

so. I submit to you that the spring rise is as out of our control as

any weather event. Therefore, it should be covered as any weather

event. The language cited by J.B. Penn in his letter dated February

1, 2006 reads, ‘‘The release of water by the Corps is not a covered

cause of loss because it does not qualify as a naturally-occurring

event.’’ I find his choice of words particularly ironic, given that the

Corps of Engineers consider the spring rise as an attempt on their

part, on behalf of the pallid sturgeon, to mimic naturally-occurring

flows that has not occurred for many years.

Yet RMA has covered the non-natural flows, according to the

Corps, for many years with crop insurance. Why did they cover

them? Because RMA deemed them as natural. It is a clear example

of Government agencies having a game of Three Card Monte, playing with farmers’ money. The obvious intent of the natural-occurring language is to deal with fraudulent practices by the insureds.

This issue has absolutely nothing to do with fraud by anyone.

One of my neighboring farmers posed a question to me the other

day. I pose it to you today. I agreed to purchase crop insurance as

a prerequisite to participating in USDA commodity price support

programs. If I have only partial coverage for my perils, through the

actions of the USDA and other agencies, am I therefore out of compliance? Can USDA breach a contract with growers when the grower does nothing wrong?

You may be asking yourself, what is at risk here? According to

data compiled by the Missouri State FSA office, there are 910,513

acres in the 500-year floodplain in Missouri alone. I believe that 85

percent of those acres are in crops. The remaining 15 percent

would be in roads, towns, trees, or otherwise uncropped. Therefore,

approximately 774,000 acres of crops in Missouri are at risk. I estimate $300 per acre in grower exposure. Increased risk exposure to

Missouri agriculture alone due to RMA’s position total

$232,200,000 per year in increased risk.

As Harry Truman once said, you know you add a million here

and a million there, and you’ve got a lot of dollars. Pretty soon, you

add a few hundred million on top of a few hundred million for a

lot of dollars. It is important to reiterate that this data only covers

acres in Missouri. Iowa acreage, Kansas and Nebraska data was

not available to the Missouri FSA office.

Gentlemen and Mrs. Emerson, it’s obvious that farmers in the

Missouri River valley just like me are being put into an impossible
31

position. The level of risk we are being asked to withstand is unconscionable. The inflexibility of the U.S. Fish and Wildlife, U.S.

Army Corps of Engineers, and USDA through this whole process

has been monumental, not to mention disappointing.

The financial distress caused by an uninsurable flood event will

rob equity from families it took generations to build. Many operations will fail under the strain. All for the definitions of natural,

insurable, and endangered. RMA staff told me on February 1 how

difficult this decision was for them. My response to them at that

time and to you today is, for as hard as it was for them to make

the decision, it’s a thousand times harder for me to live by it.

Members of the committee, I thank you for your time and your

efforts. I encourage you to do the right thing on this issue. Thank

you.

Mr. MORAN. Mr. Hilgedick, thank you very much. I want to explore with you something in your testimony that catches my attention, and it’s the language you cite from Under Secretary Penn,

and it’s followed by the sentence that, ‘‘yet RMA has covered the

non-natural flows, according to the Corps, for many years.’’ I want

to make I understand what you’re telling us. Is there examples of

where this type of release has been covered by crop insurance policies in the past.

Mr. HILGEDICK. There is. My family has endured floods in 1947,

in 1951, in 1967 twice, in 1973 twice, in 1986, in 1993 and 1995.

Mr. MORAN. Is the only difference today the purpose for which

the water is being released.

Mr. HILGEDICK. You’ve hit it right on the head with that comment. A rise and release is a release whether it’s a for the endangered species or whether it is for other purposes. It’s the same

water flowing down the river.

Mr. MORAN. In the past, the releases on the Missouri—and I

come from a part country where we wish we had a river. The releases in the past have been for navigation, general management

of flood control of the river and the river basin. And if that was

the purpose today, we wouldn’t be having this hearing.

If it was clear the Corps was releasing the water for purposes of

navigation or for flood control upstream, up river and there was

flooding that occurred on farm ground in Missouri, no question but

what crop insurance policy would cover that release—the damages

caused by that release?

Mr. HILGEDICK. In the 70 or so years that the river has been operated for flood control and navigation, that question, to me has,

never been asked. It is obvious that when you bring in the spring

rise, we never had this debate until the spring rise entered into the

equation. The spring rise has brought about the discussion that exactly that you’re touching on, has brought forth a perceived manmade rise.

Mr. MORAN. The light may be slow for me to come on here, but

the question that now appears to me is I was focusing upon an intentional release causing flood damage. That’s not really the case.

All releases are intentional.

Mr. HILGEDICK. That’s exactly right.
32

Mr. MORAN. The issue for what purpose is the intentional release

occurring, and that has a different result at RMA based upon that

purpose; that’s what I’m hearing.

Mr. HILGEDICK. That’s correct. And I would respond and qualify

it a bit in that the Corps cites weather forecasts, in terms of deciding whether they release, those forecasts last week that had our

highs for the day in the 40’s. As we take off our coats at 75 today,

I urge you to think back on that, because they’re relying on the

same sort of models that were 30 degrees off five days ago, and

they’re expecting to throw those forecasts out for 14 days. And

that’s unacceptable.

Mr. MORAN. This question may have been better directed towards the Director of Agriculture, but do—your testimony, Mr.

Hilgedick, was about the number of farmers and the value of the

potential losses. Do we know what percentage of farmers are covered in this basin? Maybe this is Farm Bureau question as well:

Is crop insurance prevalent for all the farmers in the river basin

and what level of coverage do they have.

Mr. WATERS. Well, first of all, I know, a lot of farmers, their financial institution tells them they will take crop insurance or they

won’t get their loans. I think that’s another issue that the bankers

need some assurances here as well. And that’s something I don’t

think’s been brought up yet today. Most farmers do carry crop insurance. Crop insurance is tied to all those other Federal programs.

However, in the Missouri River bottoms, the price for that crop

insurance is much more because they do farm in the river bottoms,

which premiums are a lot more in the river bottoms, so it does

cause some of those farmers to take a lesser amount of coverage,

and so—and that’s just because of the potential for flooding, and

so it’s kind of ironic that they pay more because of the risks of

flooding and then hear that that part of the insurance may not

cover them. So that’s where we’re concerned.

Mr. MORAN. Thanks.

Let me turn to the gentleman from North Carolina.

Mr. ETHERIDGE. Thank you, Mr. Chairman. Thank you, gentleman, for being here. The uncertainties of whether crop insurance

would cover the loss is a severe result. And it’s been a part of everybody whose been in there. What impact does that have on your

financial picture, your ability to plant, for all farmers to obtain

credit or financing? I think that’s a critical piece today with the

tremendous cost of a farm.

Mr. HILGEDICK. That’s a very good question. As a grower myself,

our fixed costs are fixed. Our variable costs, whether we grow corn

or soybeans, are very similar. The price of fertilizer is the same

this year as it was in the past. The price of seed is the same this

year as it was in the past. Our cost for doing other sorts of business, whether it be insurance, whether it be equipment or whatever, those continue to escalate.

As far as what we can do on our end to defray some of the increased risks, there’s not a lot we can do. We can’t quit. We can’t

not plant. That’s what we do for a living. So that’s probably the

way I would address that, and in terms of financing, it’s very real.

When you lose in a flood—my daddy used to say that it took 3

years to recover from a flood as a grower.
33

You lose year 1, and then you’re going to spend the next 3 years

recovering, so then you’ve lost four years of your useful life of working. So then you’re 4 years closer to retirement, and you’re back to

where you were at year zero.

Mr. ETHERIDGE. Well, I’ll agree with that.

Mr. WATERS. One the other things that we’ve noticed is there is

an increasing amount of cash rent that’s being paid. Farmers are

forced to farm more and more acres because the margin becomes

less and less. And as farm ground doesn’t always come up for sale,

they’re reaching out and having to pay cash rent, and some of

these cash rent prices are ever increasing, and so to help with

that—I mean, as that cash rent price increases, the risk that that

farmer has increases, and so crop insurance plays a big part in

helping offset that risk as the cash rent prices increase.

Mr. ETHERIDGE. Final question: After hearing the testimony and

comments of Mr. Gould earlier, do you feel more confident your

property rents now?

Mr. HILGEDICK. No, sir. No.

Mr. ASBURY. I’d like to add one thing with respect to that. One

thing I think needs to be recognized today is that the focus of most

of the testimony has been about the year 2006. Congressman

Hulshof made a point earlier that we need to take into consideration and focus on, and I believe it’s this: 2006 is a relatively minor

year with respect to the magnitude of releases and the duration of

releases that we would see as a result of the spring rise.

But we have seen groups such as the Missouri River Natural Resources Committee, which is comprised of seven State game and

park agencies in the Missouri River basin proposed levels for 2007

and beyond that could cause interior drainage problems as a result

of the release alone, not in connection with an excessive rain event.

With that in mind, there’s a situation that we could see occur in

the future, where the manmade portion of the release could be the

sole problem that would occur, not in coincidence with the manmade event.

Therefore, we’re not facing the situation where, even with that,

we’re discussing the definitions of excessive. We’re discussing there

only what could occur as a result of the release itself, and in that

light, would not be covered by crop insurance, according to Mr.

Gould’s statement earlier.

Mr. ETHERIDGE. OK. Thank you, gentlemen. I hereby yield, Mr.

Chairman.

Mr. MORAN. Thank you.

Mr. Hulshof.

Mr. HULSHOF. Thank you, Mr. Chairman. Along that line, Mr.

Asbury, we’ve been talking in terms of overtopping the levees, in

essence. Now, in 2006, I come in 36.3 or 4 million acre feet, and

there may be, it’s being reported, one single pulse this spring. Considering the 2007 possibilities, and you’ve alluded to that—and

thank you for being here. Are you going to Omaha right after this.

Mr. ASBURY. Another meeting tomorrow.

Mr. HULSHOF. Another meeting tomorrow. Should the Corps be

allowed to do 2007 rise, what estimate of crop damage, again, either from overtopping or, as you alluded to, the drainage issue,

what’s the worst-case scenario?
34

Mr. ASBURY. I can’t put a specific number on that, Mr. Hulshof.

I’m not sure of the answer to that, but the one thing I do recognize

is that interior drainage problems occur before overtopping of the

levee. And I guess as I read the latest USDA response to Senator

Talent, my greatest concern within that letter was the fact that I

didn’t even see that interior drainage problems were potentially addressed.

With some of these potential releases that could occur in the future as a result of the proposals and recommendations of Missouri

River scientists, we again could see the situation where an interior

drainage problem would occur without excessive rainfall and possibly even without anything other than the normal tributary inflow

as a result of normal rainfall here in the spring.

What is going to happen if that case occurs is the situation

where overtopping of the levee likely would not occur. But interior

drainage problems still could occur. They are going to be more

prevalent, because it takes less water to do that and, again, as

stated earlier, when those floodgates are shot, that water is held

within those fields, and that’s where the delayed planting occurs,

the potential crop loss and crops dying, et cetera. But as far as putting a specific number on what the potential damage may be, I

couldn’t do that.

Mr. HULSHOF. Mr. Waters, I appreciate all that you do and have

done. Let me ask Mr. Hilgedick a quick question. Terry, two birds,

one fish. You’ve testified eight times, I think. You’ve probably

chased Mr. Cieslik up and down the river. I say that not in a derogatory sense.

When, during those eight public hearings, you testified, you’ve

been very outspoken and passionate because this affects you and

your family’s farm, and I know your family, and I appreciate you

taking on this issue because you speak up about it, because it’s

your livelihood. When during those eight hearings that you personally attended did the issue come up that your crop insurance would

not cover these losses?

Mr. HILGEDICK. Well, I have fond memories of testifying with

Congressman Hulshof right here under the bridge a few years ago.

We had an interesting day, but the crop insurance issue has just

peeked up this last fall—November, December meetings when they

foreposted those meetings for input, never before in the 15 years

prior to that had it ever occurred in any hearing that I was at, nor

did it ever occur at any hearing that I’d heard of.

Therefore, it is a brand-new issue. How it surfaced, I’m not really

sure, but it did come out of RMA, and it is very disappointing. If

ever there were insult to injury, this is it, and we’re sitting right

here in the middle of it, right here in Missouri, but I would post

that fact to all these others.

Mr. HULSHOF. So, in other words, we’ve had you, people in this

room, for 10-plus years, people have been fighting this issue, especially on the lower Missouri River valley where we are fighting this

spring rise. Dozens and dozens of hearings that have been required

by law, the Army Corps of Engineers have held, the Fish and Wildlife Service seeking input, hearing testimony like yours and contrary testimony, after all of those hearings, this issue of substantial

economic loss because crop insurance isn’t going to pick up the
35

weakest cost of flooding. This flooding, intentional flooding simply

first arises last fall in November and December; is that right?

Mr. WATERS. That is correct.

I just wanted to make one comment because I think it’s important. Being in meeting after meeting after meeting on the Missouri

River for the last 10-plus years, and it’s not the first time we’ve

heard about crop insurance. We have heard about crop insurance

in the respect that it’s a safety net for the farmers, so that if it did

flood, they have crop insurance.

It wasn’t until November, in Kansas City last year, that a representative for RMA stood up and said, wait a minute. Crop insurance won’t cover manmade events, so always before, when we

talked about crop insurance, it was always with the idea that that

was something that we had in our back pocket, in our sleeve, that

if the worst did happen, we would be covered. We found out different.

Mr. MORAN. Thank you.

Mr. Skelton.

Mr. SKELTON. Mr. Chairman, back in October, Kenny Hulshof

held a meeting of members of the Missouri Agriculture. At that

time, it was described to us as—sadly, I might say—sadly, as a perfect storm. One of the most expensive harvests in generations:

High in fuel costs, high fertilizer cost, increased transportation

costs—and which, of course, were associated with the two hurricanes, Katrina and Rita, severe drought conditions.

So, Mr. Waters, with that background, from what Mr. Hulshof

and I have learned, how does this unfortunate perfect storm which

you’re describing impact your farm and the farmers you represent

at the Farm Bureau as it relates to the spring rise and the crop

insurance issue that has been described today.

Mr. WATERS. Well, I think the key thing to remember is when

the water is released from Gavins Point Dam in South Dakota, it

takes ten to eleven days to reach St. Louis. And so within that ten

to eleven days is when that perfect storm could occur. If—well, I

can tell you, for example, last year, last spring in May, twice. The

first time, the river jumped up 12 feet in less than 4 days, and then

again later that same month, it jumped up almost 13 feet in 2

days.

And so if the water is released on May 1, and there is no forecast

of rain, everything looks nice, they release the extra water. All of

a sudden, we get a rain below Gavins Point. The river jumps up,

and then, if they’ve already added an additional 3 feet, then instead of a 12-foot jump, we have a 15-foot jump, or instead of a 13-

foot jump, we have a 16-foot jump. Those create those conditions

you’re talking about, about the perfect storm.

And as Mr. Hilgedick referred to, the National Weather Service,

they’re good, but they’re not 10 days’ good. And so, in May 2005,

prior to the river jumping up, there was never more than a 30 percent chance of rain in all of those days leading up to those 12-foot

rises. It would be nice to say we could predict the weather 10 days

out, but we just can’t, and that’s where the perfect storm can be

created.

Mr. SKELTON. Thank you. Mr. Chairman, let me take this opportunity—and I know Mr. Hulshof feels the same—but I appreciate
36

you and Mr. Etheridge coming from Kansas City and North Carolina and joining us Missourians in this great city to join us and my

neighbor, Mrs. Emerson, and be with us as well is beautiful. Thank

you so much.

Mr. MORAN. Mr. Skelton, I appreciate you and Mr. Hulshof inviting Mr. Etheridge and I and the subcommittee to be here. It’s easy

for us to see the partisanship that occurs in our nation’s capital,

but I can assure you that we can take great hope by the cooperation we’ve just seen between Mr. Hulshof and Mr. Skelton, Mr.

Etheridge and I, working together and joined by other members of

the committee, trying to find solutions to problems that American

farmers face, and so I appreciate the way we’ve been treated today

in Missouri, and I appreciate very much the way that you and

Kenny have worked with us to see that good things come from this

hearing.

Final questions from Mrs. Emerson.

Mrs. EMERSON. Thank you, Mr. Chairman. And I will say that

it’s very gratifying to be able to work on agricultural policy, because it is not partisan. It’s a breath of fresh air.

Now, I just have a question. I also want to thank you so much

being here, to Mr. Hilgedick. I want to ask you, what does the policy mean to the next generation of farmers? Sometimes they’re required to purchase insurance, and now, if all of your losses won’t

be covered, are the banks going to give some of our young producers the money they need to produce crops?

Mr. HILGEDICK. Entry into farming has never been more difficult

than it is, and probably it will only grow in difficulty over time,

when you’ve got such a huge capital expense in a crop, and you

have such uncertainty associated with that crop, and that uncertainty has recently grown. Therefore, a banker would have to have

a lot of security, a lot of assurances that something is not going to

go horribly bad, and without crop insurance for this risk, that becomes a little harder to provide the bank with.

And I might add one more comment: Mr. Skelton mentioned the

perfect storm and now crop increase on the farm and profitability

is in decline. I have a saying once in a while that says, when the

river is low, you have a thousand problems. You have high fertilizer, you could have higher cost for land, you have all start of

things to deal with. But when the river’s high, you have one problem, and that’s a flood. And that problem has just gotten a little

harder to deal with. So how am I supposed to?

Mrs. EMERSON. Well, I appreciate that, and I think that young

farmers face so many challenges these days, it only exacerbates it.

Perhaps, Mr. Chairman, it makes the means more difficult for us

to pass on this very, very important profession to the next generation.

Mr. MORAN. I appreciate very much the testimony of this panel

and thanks very much for joining us. We are soon to conclude this

hearing, but the issue I think has been resolved, so more work can

be done. Mr. Hilgedick and Mr. Waters and Mr. Asbury, maybe a

few more meetings to go to. I wouldn’t be surprised.

A couple of requests for Mr. Gould. Mr. Gould, would you get to

me the Department’s interpretation of that phrase, ‘‘as determined

by Secretary’’, kind of the background of how you reached your con-
37

clusion as to what that phrase means and the statute? And also,

I’d like to have my understanding of this issue about purpose behind the discharge of water better understood, and I’d like to know

what the Department of Agriculture and RMA’s position is.

Is this really an issue behind the purpose of discharge of water

that crop insurance would apply, it would be covered if this water

was being released for the purposes of flood control or navigation

along the Missouri River, and why is this an issue today but hasn’t

been an issue in the past, as to whether or not crop insurance

would cover losses by crops inundated by water? And so if we could

continue to work to provide this subcommittee with those answers,

I’d appreciate it.

Senator Talent has submitted testimony for the record. He is unable to be with us in Jefferson City today. Without objection, I’d

ask that his testimony be made part of the record of today’s hearing. With no objection, so ordered.

Anything else, Mr. Etheridge?

Mr. ETHERIDGE. No, thank you.

Mr. MORAN. Without objection, then, the record of today’s hearing will remain open for 30 days to receive additional material and

supplementary written responses from witnesses to any questions

posed by a member of this panel, and I would also suggest that if

there are those in the audience who would like to submit written

testimony, the subcommittee would welcome that within the next

10 days.

With that, the Subcommittee on General Farm Commodities and

Risk Management is adjourned.

[Whereupon at 9:58 a.m., the subcommittee was adjourned.]

[Material submitted for inclusion in the record follows:]

STATEMENT OF RANDY ASBURY

Mr. Chairman and members of the Subcommittee on General Farm Commodities

and Risk Management, Congressman Skelton, Congressman Hulshof. Good morning.

I am Randy Asbury, executive director of the Coalition to Protect the Missouri

River. CPR represents a diverse group of agricultural, navigational, utility, industrial and business-related entities all of which are Missouri River stakeholders. We

support responsible management of Missouri River resources and the maintenance

of congressionally authorized purposes of the river including flood control and navigation.

Gentlemen, a serious problem has created the need for this crop insurance hearing this morning and it is called the ‘‘manmade’’ spring rise. As the foundational

issue of that which confronts us in today’s hearing, I would like to provide some

history regarding the ‘‘manmade’’ spring rise.

In 1990, the U.S. Army Corps of Engineers conducted its first consultation with

the U.S. Fish and Wildlife Service on the effects of its Missouri River operations on

endangered and threatened species pursuant to the Endangered Species Act.

In 2000, the Corps again consulted with the USFWS producing the 2000 Biological Opinion that concluded that the Corps’ proposed river operations for 2000 were

likely to jeopardize two birds and, and most notably for today’s discussion, the endangered pallid sturgeon.

The pallid sturgeon is described as a prehistoric-looking fish and purportedly

needs a ‘‘manmade’’ spring rise to act as a spawning cue. Ironically, a ‘‘naturally’’

occurring spring rise resulting from rain events and snowmelt is almost annually

found on the lower 600 miles of the Missouri River.

A ‘‘manmade’’ spring rise on the other hand, would occur as water is artificially

released from Gavins Point Dam—the lowest dam on the Missouri River Mainstem

system—onto water already in the river channel below Gavin Point Dam because

of Corps’ operations and/or natural precipitation events. Its purpose according to the
38

USFWS would be to provide a more ‘‘natural’’ hydrograph that is supposedly more

to the liking of the sturgeon.

The 2000 Biological Opinion included a Reasonable and Prudent Alternative for

the pallid sturgeon that recommended a ‘‘manmade’’ spring rise designed to avoid

jeopardy for the sturgeon.

The Corps again consulted with the USFWS in November 2003 creating an

amendment to the 2000 Biological Opinion. That opinion concluded that jeopardy

would result for the sturgeon and proposed a new RPA that again mandated a

‘‘manmade’’ spring rise. Consequently, we find ourselves on the brink of not one—

but two—‘‘manmade’’ spring rises to occur in March and May.

The stakeholders we represent have steadfastly opposed ‘‘manmade’’ spring rises

since the early nineties, as the plan is based on inadequate and unproven science,

has not been properly analyzed for its socio-economic impacts and generally ignores

downstream interests.

Because poor science forms the basis of the ‘‘manmade’’ spring rise mandate, the

Missouri River has become an experiment-driven river. The haphazard nature of an

experiment-driven river produces unreliability and potential economic hardship!

United States Geological Survey scientists have confirmed that pallid sturgeons

are spawning in the Missouri River without a spring rise—‘‘manmade’’ or natural.

Given that revelation, the issues discussed today and precipitated by the artificial

spring rise are unnecessary when we know that USGS scientists point to factors

such as temperature and photoperiod as more advantageous to sturgeon spawning

than a ‘‘manmade’’ spring rise.

Moreover, the August 2005 Eighth Circuit Court ruling affirmed flood control as

a dominant function of the Flood Control Act of 1944 for the Missouri River

Mainstem Reservoir System. The Court also stated that, ‘‘It follows that if future

circumstances should arise in which [Endangered Species Act] compliance would

force the Corps to abandon the dominant FCA ‘‘purpose of flood control’’, the ESA

would not apply.’’

The spring rises have the distinction of becoming an experiment without a conclusion. No baselines exist to gauge the success or failure of the experiment, therefore,

we can arguably anticipate their failing and larger rises released in the future in

the name of ‘‘science’’. Larger rises almost certainly expose our producers to adverse

economic risk by overtopping of levees and interior drainage problems. Such occurrences would cause us to seek a Federal compensation package to make all with

crop losses whole regardless of whether they had crop insurance.

In the meantime, we continue to work with the administration to address this insurance issue. Moreover, we continue to evaluate the $85 million proposed by the

administration for ESA recovery on the river. We have serious reservations regarding those funding levels for experiments not based on sound and independent

science.

I appreciate the opportunity to express the frustration we face with having to address issues that arise from the ill-conceived ‘‘manmade’’ spring rise.

STATEMENT OF LAWRENCE J. CIESLIK

Thank you, Chairman Moran and members of the Subcommittee on General Farm

Commodities and Risk Management for providing me the opportunity to speak

today. My name is Lawrence Cieslik and I am the Deputy Director of Programs Directorate and Chief of the Missouri River Basin Water Management Division for the

Northwestern Division of the U.S. Army Corps of Engineers. I have worked for the

Corps for nearly 32 years and have been in my current position since 1997. I have

a Bachelor’s degree in Civil Engineering from the University of Nebraska and am

a Registered Professional Engineer in the State of Nebraska. The Northwestern Division Commander, General Gregg Martin, regrets that he could not be here today,

and has asked me to represent him at this hearing.

The Corps operates the Missouri River Mainstem Reservoir System to serve the

congressionally authorized purposes of flood control, navigation, hydropower, irrigation, recreation, water supply, water quality, and fish and wildlife. The Corps’ goal

is to best serve these authorized purposes while complying with all applicable laws,

including the Endangered Species Act or ESA, while fulfilling our responsibilities

to federally recognized Native American Indian Tribes.

The Corps has been consulting with the U.S. Fish and Wildlife Service under the

ESA since the early 1990’s on the operation of the Missouri River Mainstem Reservoir System, the Bank Stabilization and Navigation Project, and the Kansas River

projects. In November 2000, the USFWS provided the Corps a Biological Opinion

which concluded that the Corps’ operation of these projects jeopardized the contin-
39

ued existence of the interior least tern, piping plover, and pallid sturgeon; three animals protected under the ESA. As a result of additional information and the listing

of critical habitat for the piping plover, in 2003 the Corps and USFWS reinitiated

ESA consultation. In their 2003 Amended BiOp, the USFWS concluded that the

Corps’ actions jeopardized the continued existence of the endangered pallid sturgeon. However, in the 2003 Amended BiOp, the USFWS provided a Reasonable and

Prudent Alternative, or RPA, to jeopardy. The RPA includes a requirement for a bimodal spring pulse from Gavins Point Dam.

Intense efforts continue by the Corps, with assistance from the USFWS, U.S. Geological Survey, States, and other natural resource experts, to restore physical habitat for the pallid sturgeon in the Missouri River below Gavins Point Dam. This restoration work will provide the habitat for young sturgeon to develop and survive.

However, under the 2003 Amended BiOp, habitat creation does not substitute for

changes in river management to provide the flow conditions that promote sturgeon

reproduction. The 2003 Amended BiOp requires the Corps to implement the bimodal

spring pulse releases no later than the spring of this year. However, the BiOp also

allows for consideration of the existing hydroclimatic conditions such as drought, in

the decision on whether or not to implement the bimodal spring pulse in any given

year. The bimodal spring pulse releases are designed to cue pallid sturgeon spawning by partially restoring some semblance of the river’s natural hydrograph, characterized by spring pulses at the times when major snowmelt occurs first in the plains

and then in the mountains. Spawning and recruitment will be key to recovery of

self-sustaining sturgeon populations in the Missouri.

The Missouri River basin is currently experiencing an extended drought, and system storage is at unusually low levels. The Corps has taken these low levels into

account in developing the criteria for this year’s bimodal spring pulse release plan,

as allow for in the BiOp, along with public input regarding the risks associated with

the spring pulse releases. The plan for this year is presented in the Corps’ 2005–

2006 Annual Operating Plan for the Missouri River Mainstem System. This plan

was developed based on the requirements of the 2003 Amended BiOp, intense analysis of hydrologic data, input from the spring pulse Plenary Group (composed of more

than 50 Basin stakeholders), Tribal consultations, and public comments received on

the draft AOP. This collaborative process was facilitated by the US Institute for Environmental Conflict Resolution and included representation from the USFWS, the

Corps, Tribal representatives, basin States, and a wide range of stakeholders. These

discussions were key in the identification of a bimodal spring pulse plan for 2006

that greatly reduces the potential for negative impacts as compared to the plan

identified in the 2003 Amended BiOp. One key change was a reduction of the peak

of the spring pulses from 1 to 2 weeks down to 2 days. This not only saves water

in System storage, which is very important during the current extended drought,

but also reduces the duration of the higher river stages downstream. The Plenary

Group discussions, and extensive discussions with the USFWS, also helped the

Corps identify exactly how to adjust the magnitude of the May spring pulse in response to hydroclimatic conditions. During drought these adjustments substantially

reduce or eliminate the spring pulses. We believe that the bimodal spring pulse plan

presented in this years AOP comply with the requirements of the 2003 Amended

BiOp while being responsive to hydroclimatic conditions in the basin.

The Corps understands farmers concerns over the potential for flooding of cropland during the bimodal spring pulse releases and their concern over crop insurance

benefits during those releases The bimodal spring pulse plan includes criteria specifically designed to minimize the risk of downstream flooding and crop damage.

First, the Corps and USFWS agreed that the established downstream flow limits

would not be changed under the 2006 AOP, providing similar downstream flood control during the spring pulse releases as has been provided in previous years. Second,

the Corps has agreed, at the request of the downstream farmers, to integrate the

National Weather Service’s precipitation forecasts into its daily Missouri River operational forecasts during the spring pulse period, and will adjust releases accordingly. And third the Corps will integrate estimated actual rainfall derived from

weather radar information into its forecasts during the spring pulse releases. These

measures, along with the reduced duration and magnitude of the pulses, will reduce

the potential for downstream flooding of cropland. It is also important to note that

because System storage is low due to the current extended drought, that releases

for navigation in 2006 will be 6,000 cubic feet per second lower than normal, thus

resulting in lower peak flows due to the spring pulses. All of this information has

been discussed with the USDA and their Risk Management Agency to help foster

their understanding of the spring pulse operation for 2006.

In conclusion, the Corps remains committed to operate the Missouri River

Mainstem System to serve the congressionally authorized project purposes, fulfill
40

our Tribal Trust and Treaty obligations, and comply with all applicable law, including the ESA. We are convinced that this can be best accomplished in a sustained

collaborative process that includes the entire spectrum of Basin interests. Working

together as a team—Federal, Tribal, State, local agencies, and stakeholders—we can

identify solutions that benefit the Basin as a whole. Thank you for the opportunity

to represent BG Martin at this hearing today.

STATEMENT OF TERRY HILGEDICK

My name is Terry Hilgedick. I will be presenting testimony on behalf of the Missouri Corn Growers Association. I proudly serve as President of the organization

and am here representing over 15,000 Missouri corn farmers.

My family farm is just 12 miles from here in a small Missouri River town know

as Hartsburg. I therefore bring a rather unique perspective to the issue. 100percent

of our farm lies in the fertile Missouri River Valley. We endured a severe drought

in 2005. Sixty days without rain, temperatures over 100 degrees many days during

the most critical period fro crop yield development. Yet our farm collected 0 dollars

from the crop insurance program. You may ask yourself, ‘‘Why do they carry crop

insurance at all?’’ Flood Risk—and flood risk alone. It is imperative we have coverage for our No. 1 peril prior to March 15. RMA has said that they will go up and

down the basin after the flood event and make the thousands of determinations of

what policy holders are covered and what policy holders are not. That is a Pandora’s

Box that never should be opened. This is like buying homeowner’s insurance on your

house when fire is not covered, yet your agent winks and says that ‘‘it probably

won’t burn, and if it does maybe we can work something out later.’’

The battle over the ‘‘spring rise’’ has been raging 15 years and counting. I have

personally testified in opposition on eight different occasions. The State of Missouri

has opposed the spring rise for all of the 15 years to date, and will continue to do

so. I submit to you that the spring rise is as out of our control as any weather event.

Therefore it should be covered as any weather event. The language cited by J.B.

Penn in his letter dated Feb. 1, 2006 reads ‘‘the release of water event.’’ I find his

choice of words particularly ironic given that the Army Corps of Engineers consider

the spring rise as an attempt on their part, on behalf of the pallid sturgeon, to

‘‘mimic a naturally occurring event’’ that has not occurred for many years. Yet RMA

has covered the ‘‘non-natural flows’’ (according to Corps) for many years. Why did

they cover them? Because RMA deemed them ‘‘natural’’. It is a clear example of

Government agencies having a game of ‘‘three card monty’’ playing with farmer’s

money. The obvious intent of the ‘‘natural occurring’’ language is to deal with fraudulent practices by the insureds. This issue has absolutely nothing to do with fraud.

One of my neighboring farmers posed this question to me the other day. I pose

it to you today. I agree to purchase crop insurance as a prerequisite to participating

in USDA commodity price support programs. If I have only partial coverage for my

perils, through the actions of the USDA, am I therefore out of compliance? Can

USDA reach a contract with growers when the grower does nothing wrong?

You may be asking yourself ‘‘What is at risk here?’’ According to data compiled

by Missouri State Farm Service Agency there are 910,513 acres in the 500 year

floodplain in Missouri alone. I believe 85percent of those acres to be in crops. The

remaining 15percent would be in roads, towns, trees, or otherwise uncropped. Therefore 774,000 acres of crops in Missouri are at risk. I estimate $300 per acre in grower risk exposure. Increased risk exposure to Missouri agriculture due to RMA’s position total $232,200.00. It is important to reiterate that this data only covers acres

in Missouri. Iowa, Kansas, and Nebraska data was not available to Missouri FSA.

Gentlemen it is obvious that farmers in the Missouri River Valleys, just like me,

are being put into an impossible position. The level of risk we are being asked to

withstand is unconscionable. The inflexibility of the U.S. Fish and Wildlife Service,

U.S. Army Corps of Engineers, and USDA through this whole process has been

monumental, not to mention disappointing. The financial distress caused by an ‘‘uninsurable’’ flood event will rob equity from families it took generations to build.

Many operations will fail under the strain. All for the definitions of ‘‘natural’’, ‘‘insurable’’, and ‘‘endangered’’. RMA staff told me on February 1st how difficult this

decision was for them. My response was ‘‘for as hard as it is for you to make the

decision, it is a thousand times more difficult for me to live by it.’’

Members of the committee I thank you for your time and efforts. I encourage you

to do the right thing.
41

STATEMENT OF ROY CLAYCAMP

Chairman Goodlatte and members of the committee, thank you for allowing me

the opportunity to appear before you today. I would also like to extend a personal

thank you to the honorable Jerry Moran from Kansas’ First Congressional District

for inviting me to be here with you today.

My name is Roy Claycamp and I am here to speak on behalf of agricultural producers in the State of Kansas. I produce corn, soybeans, wheat and beef on my 1400

acre farm in Seneca, KS.

I believe that the farm bill debate will be influenced in each of four specific areas:

the economy, the budget, trade and political interests must all be addressed in the

development of this important and complex piece of legislation. Our economic status

at the current time would suggest that we simply are not in the situation we were

in during the 2002 period. I am fully aware of the budgetary constraints that will

be facing Congress as it considers future farm policy. Global trade and the Doha

Round of Trade Negotiations will most certainly impact the structure of future farm

legislation.

I would like to address a number of issues that should be considered by the committee when writing future farm legislation. It is crucial that Congress allow the

2002 farm bill to operate, without major modification, through its scheduled expiration date with the 2007 crop so that farmers can make responsible investment, cropping and marketing decisions. It is significant that no other commodity or trade organization has proposed changes to the current law. In fact, in its annual meeting

in January, American Farm Bureau supported an extension of the current law until

a saleable solution can be reached in the Doha Round. Mr. Chairman, as your committee begins consideration on the next farm bill, I believe it is critical for Congress

to provide adequate budgetary authority in order to craft an effective and efficient

farm bill.

Trade will most certainly play a significant role in the construction of future farming legislation. Congress should consider WTO compliance while debating this issue.

Currently, the US farm programs are under constant threat of WTO trade litigation.

It is essential that Congress look at ways to comply with WTO regulations regarding trade. Trade-distorting domestic amber box payments may be reduced in exchange for market access and the elimination of export subsidies. Such reduction

in US amber box supports should be offset by fully funded green and blue box eligible programs. This could be accomplished through any number of ways including:

working lands conservation programs, risk management, the Market Access Program, enhanced crop insurance, revenue assurance or Government programs that

increase producer profitability.

The last issue I would like to address is Rural Development. In a recent study

AFBF stated ‘‘farmers are now more reliant on rural communities than rural rely

on farmers.’’ The agricultural community must act to retain and attract youth and

young families that are involved in their rural communities and improve the general

potential of rural communities to attract and retain business and industry through

economic development and economic incentive programs. Many agricultural producers are entrepreneurial by nature, Congress should take action to foster this type

of behavior. As we move forward into the future the production of renewable energy

will play a significant role in the growth of rural communities. We must address

the need for strong leadership programs in rural communities which should include

young individuals who are active in their communities. A key to revitalizing rural

America is allowing rural residents affordable and reliable access to communications

vehicles. This can be done by allowing communication services providers access to

funds such as the Universal Service Fund and USDA Rural Development Funds.

Mr. Chairman I recognize that your committee and Congress will face many challenges from many different interests in crafting new farm legislation. I would emphasize that adequate budget authority and the current farm program form a solid

foundation for future legislation. I would like to thank you and the members of your

committee once again for allowing me to appear before you today.

STATEMENT OF ELDON GOULD

Mr. Chairman, members of the Subcommittee, I am Eldon Gould, Administrator

of the Risk Management Agency, United States Department of Agriculture. I assumed this position in November of last year. I am a life long farmer in northern

Illinois, with a 1500-acre corn, soybeans and wheat—farm and a 700 sow farrowto-wean hog operation. My task here today is to explain the role of the Federal crop
42

insurance program as it relates to the Missouri River pulse releases. We have been

working on this issue beginning late last year and in consultation with members

of the Missouri congressional delegation and some of their constituents on an ongoing basis.

RMA administers the Federal crop insurance program on behalf of the Federal

Crop Insurance Corporation. The agency has a unique—partnership with 16 private—insurance companies that are responsible for the—sale and service of the various insurance policies. Through the private sector delivery system in crop year

2005, RMA provided approximately $44 billion of protection to farmers on some 370

commodities covering over 80 percent of the planted acreage in the United States.

This coverage was offered through 22 plans of insurance and approximately 1.2 million policies that insured about 246 million acres.

As you are aware, the U.S. Army Corps of Engineers has scheduled two spring

‘‘pulses’’ or water releases from the Gavin’s Point Dam on the Missouri River in an

effort to mimic the natural river rise and encourage spawning of the endangered

pallid sturgeon. This is being done to comply with the requirements of the Endangered Species Act.

There is concern among producers along the Missouri River and thus, among their

elected representatives, that these pulses of water might cause flooding or excess

moisture conditions for farms along the river. RMA learned of these concerns when

producers asked if any losses suffered as a result of the pulses would be covered

by the Federal crop insurance program.

The Department of Agriculture has recently responded in writing to queries from

Senators Bond and Talent, and Representatives Emerson, Hulshof and Skelton on

this matter. We also responded earlier to Attorney General Nixon and the Missouri

Corn Growers Association. We take their concerns very seriously.

As I have stated, Mr. Chairman, I am a producer myself and one of my goals as

Administrator of RMA is to ensure that RMA is doing everything it can, within its

legislated authority, to assist the farmer and rancher and keep rural America and

its critical agricultural industry competitive and sound.

To that end, RMA has been consulting extensively with the Corps since we

learned of the planned water pulse events to determine, and where possible, minimize the risks to producers due to these releases. Having sought out the facts and

evaluated our ability to act, we believe that we can lay these facts before you now

with the confidence that we have examined all aspects of this issue in our continued

efforts to be of assistance.

As you are aware, Mr. Chairman, crop insurance payments are made on production losses that are due to acts of nature such as weather events, including drought,

hurricane, freeze, disease, and excess moisture. These causes of loss are manifested

in the Federal Crop Insurance Act and specifically stated in the crop insurance policies. These proposed pulses of water by the Corps are not an act of nature, but due,

instead, to the requirements of Federal law. Therefore, in the unlikely situation that

there are any losses attributable to those releases, those losses cannot be covered

under the crop insurance policies. However, any losses attributable to natural occurrences, such as excessive rain, will be covered.

The planned March pulse of water will result in an increase of one to 1.5 feet in

river stage at the peak of the pulse. This is less than the rise that occurs when full

service releases are made during non-drought periods. The Corps has informed us

that the potential May spring pulse, given the drought conditions in the basin, will

cause a 1.5 to 3 foot rise in the river downstream. This will not cause a rise above

a normal navigable river level.

We have communicated with Assistant Secretary of the Army for Civil Works, the

Honorable John Paul Woodley, Jr. Assistant Secretary Woodley has given RMA assurances as to the Corps’ flexibility to administer these releases with a strong consideration given to flooding potential. The timing and magnitude of the releases will

be adjusted by the Corps if weather conditions or river levels suggest the potential

for damage to crops along the river.

The Corps has routinely released water from reservoirs into the Missouri River

system in past years to meet their various mandates without affecting crop insurance coverage. We have no reason to believe that would not continue in the future.

Based on the control of timing and magnitude, and the Corps’ analysis of the current conditions in the Missouri River system, neither RMA nor the Corps anticipates that these upcoming releases will cause damage to crops or cropland along the

Missouri River system.

I can assure members of this Subcommittee and their constituents that any crops

insured with a Federal crop insurance policy that suffer losses that are specifically

attributable to natural causes, such as excessive rain, will be covered in accordance

with the terms of the policy, irrespective of these releases by the Corps.
43

There has been at least one occasion in the past where the Corps was required

to release water into the Missouri River system due to excess moisture and the need

to mitigate the potential for flooding. In such instances where the Corps’ releases

were due to a covered cause of loss, (in this case, excess moisture) any crop damage

suffered by insured producers in our program from the release was covered under

Federal crop insurance.

In closing, Mr. Chairman, I would like to reassure you and the Members of the

Subcommittee that RMA is fully aware of your concerns and those of your constituents. We have high regard for Assistant Secretary Woodley and the members of the

U.S. Army Corps of Engineers and would like to thank them for their continued cooperation in the examination of this matter. We will remain in close consultation

with the Corps to minimize any potential risks to producers along the Missouri

River.

Thank you for the opportunity to participate in this important hearing. I look forward to responding to questions on the issue.

ANSWERS TO SUBMITTED QUESTIONS

How will RMA determine or measure excess rain or moisture in deciding

whether it can cover flood losses along the river given the involvement of

a spring pulse?

RMA will work closely with approved insurance providers in the event of flooding

if both a spring pulse and a significant amount of rainfall occur. Consistent with

how these determinations are made for both insurable and uninsurable causes of

loss in other situations, all available information will be used, including but not limited to, all weather information pertinent to the situation such as rainfall received,

timing of such rainfall events, comparisons to normal expected rainfall, river levels

prior to the flooding, timing of any release by the U.S. Army Corps of Engineers

(Corps), and the amount of water released and expected rise created by the release.

This information will be used in assessing whether the excess precipitation caused

insurable crop damage. RMA and the Corps are committed to working together, to

every extent possible, to share information to assist in making these determinations.

Any crops insured with a Federal crop insurance policy that suffer losses specifically attributable to natural causes, such as excessive precipitation, will be covered

in accordance with the terms of the policy, irrespective of releases by the Corps.

It was suggested by some that the only difference in this whole debate

is specifying the exact cause of the release. The MO Corn growers allege

that the Corps releases water for navigation purposes all the time, for

years, and in essence suggested that RMA covered flood losses for this activity but now will not cover losses for a Corps release due to a spring

pulse, thus noting they see no difference. What is RMA’s response to this?

RMA, by its legislative authority contained in the Federal Crop Insurance Act,

can only insure or reinsure losses that result from drought, flood or other designated

natural disaster. Each crop insurance policy issued under the authority of the Federal Crop Insurance Act contains specific causes of loss that are insurable for the

specific commodity.

RMA is aware the Corps routinely releases water from the reservoirs into the

Missouri River system to meet their various mandates, including for navigation purposes, without affecting crop insurance coverage. Such releases are done in the

course of normal river operations, and are not events for which RMA would pay

flood losses solely for this activity nor is RMA aware that losses have been paid

when they resulted from Corps releases for navigational purposes only. For every

loss, including Missouri River flooding, RMA requires its approved insurance providers to verify that the cause of loss was due to a natural cause.

However, if there were weather events that might otherwise have caused flooding,

then those events would be covered causes of loss, just as any unusual or significant

weather event would be a covered cause regardless of a spring rise whether for navigational purposes or other environmental reasons like the pallid sturgeon.

RMA is aware there has been at least one occasion in the past where the Corps

was required to release water into the Missouri River system due to excess moisture

up stream and the need to mitigate the potential for flooding. In such instances

where the Corps’ releases were due to a covered cause of loss, (in this case, excess

moisture) crop damage suffered by insured producers was covered under Federal

crop insurance.
44

Please respond with FCIC’s (USDA) position as to the latitude and authority as contained within the Act regarding ‘‘as determined by the Secretary.’’

Section 508(a) of the Federal Crop Insurance Act states in part: ‘‘To qualify for

coverage under a plan of insurance, the losses of the insured commodity must be

due to drought, flood, or other natural disaster (as determined by the Secretary).’’

The phrase ‘‘as determined by the Secretary’’ cannot be read without taking into

consideration the context of the part of the sentence to which this parenthetical

statement is attached, which clearly refers to natural disasters. Further, it is a basic

tenet of statutory construction that one cannot interpret a provision in such a manner as to render any words in the provision meaningless. Each word must be given

meaning. To allow coverage for occurrences caused by the actions or decisions of

man would render the word ‘‘natural’’ meaningless.

Therefore, the latitude and authority to determine naturally occurring insurable

causes of loss for specific commodities is generally broad. However, the language in

the Act specifying drought, flood, or other natural disaster does not give the Secretary the latitude nor the authority to define natural to include actions of other

Federal, State or local governing authorities or any action or outcome that may be

manmade. The Secretary’s discretion is to determine which natural disasters will

be covered in addition to the named perils of flood and drought. The Secretary exercises this discretion by specifying through regulation for each crop insurance policy

those natural causes that may be covered loss events and thus insurable.

The entire foundation of the crop insurance program is predicated on insuring,

and therefore rating, for random acts of nature, and not for decisions, actions or

legal mandates that can be rendered without regard to the integrity and actuarial

soundness of the crop insurance program and its contractual participants that include the approved insurance providers, reinsurers and producers.

STATEMENT OF TOM WATERS

Good afternoon. My name is Tom Waters. I am a 7th generation farmer from Ray

County Missouri. I own and operate our family farm in the Missouri River bottoms

near Orrick, Missouri. Today, I am proud to represent the Missouri Farm Bureau

Federation, the State’s largest general agriculture organization. In addition to being

a proud Farm Bureau member, I serve as Chairman of the Missouri Levee and

Drainage District Association, where I represent farmers, landowners, businesses

and others interested in issues surrounding the Missouri River and its tributaries.

I am a member of the Missouri-Arkansas River Basins Association Board of Directors and serve as President of three local levee and drainage districts, which combined encompass over 20,000 acres of Missouri River bottomland.

Mr. Chairman and members of the subcommittee, I want to thank you for this

opportunity to provide testimony regarding the Missouri River. Farm Bureau especially appreciates your willingness to address the impacts of the Spring Rise on our

State’s farmers and ranchers and has asked me to share my thoughts with you regarding the United States Army Corps of Engineers plans for increasing flows on

the Missouri River twice during Missouri’s spring planting season.

I am here to talk about intentional flooding. Yes, intentional. Make no mistakes;

intentional flooding is what we are all here to talk about. Some refer to it as increased flows. Some call it habitat enhancement. Some call it a spring rise. But

what we are really talking about is intentional flooding.

The US Army Corps of Engineers and the US Fish and Wildlife Service representatives will tell you they do not want to intentionally flood anybody. Don’t be so sure!

Listen to this exchange between United States Attorney James Maysonett and Federal Judge C. Arlen Beam. Keep in mind; Mr. Maysonett is the Federal Attorney

representing both the Fish and Wildlife Service and the Corps of Engineers. This

exchange took place last year on April 11, 2005, in the case American Rivers v. U.S.

Army Corps of Engineers.

Again, what you will be discussing today is intentional flooding. If you think the

spring rise is anything less, pay close attention. Listen now to the record from the

8th Circuit Court of Appeals in St. Louis.

U.S. Attorney James Maysonett

I think what the record shows is that these are relative new ideas. The idea that

you would, for example, operate the Missouri system of dams and reservoirs to intentionally flood. That is to create a spring rise.

The Honorable C. Arlen Beam:
45

Step back just a second. You said the spring rise, and I hadn’t focused on this,

will intentionally flood?

U.S. Attorney James Maysonett:

Yes, Judge Beam, that is correct. That’s part of the concept of the spring rise is

that historically the flooding of the river will obviously have a lot of negative effects,

also have positive effects for these species.

The Honorable C. Arlen Beam

I think that reading the Pick and Sloan plans and living through, old enough to

live through part of the political ramifications, if there was anything the Missouri

River mainstem dams were supposed to do is to control flooding, so, if there’s a priority somewhere hidden in the statues I think it’s flood control.

It has become increasingly clear the Corps’ plan for a Spring Rise will be designed

to intentionally flood Missouri River Bottomlands. Apparently, the Corps of Engineers and US Fish and Wildlife do not share the same view of this US Circuit Court

of Appeals Judge.

Representatives from both agencies describe the spring pulse as a means to connect the river to the floodplain. They tell us the purpose of the spring pulses is to

provide some semblance of the ‘‘natural hydrograph’’ which historically inundated

the floodplain.

The reason the mainstem reservoir system was built was to protect against the

inundation of the floodplain. In their opinion following the April hearing, the 8th

Circuit Court of Appeals clearly stated:

the 1944 Flood Control Act has been interpreted to hold flood control and navigation dominant and recreation, fish and wildlife secondary.

They went on to say:

If, due to extreme conditions, the Corps is faced in the future with the unhappy

choice of abandoning flood control or navigation on the one hand or recreation, fish

and wildlife on the other, the priorities established by the Flood Control Act would

forbid the abandonment of flood control or navigation.

To make itself even clearer the court said,

If it follows that if future circumstances should arise in which the ESA compliance

would force the Corps to abandon the dominant Flood Control Act purposes of flood

control or downstream navigation, the ESA would not apply.

The Corps of Engineers’ 2006 Annual Operating Plan ignores the court’s opinion

and includes two opportunities to cause intentional flooding along the river. I fully

expect without changes, future Annual Operating Plans will include even greater

threats to bottomland farmers as the Corps increases flows.

As we debate the merits of intentional flooding, you must understand we are not

just discussing an economic issue or a scientific issue. The issue of intentionally

flooding one’s property or bringing harm to another is a moral issue. I, for one, believe it is morally wrong to ever, ever, intentionally cause flooding.

Flooding is wrong. Regardless of how much scientific data or economic information

is presented, it is still and always will be morally wrong to flood people. The Spring

Rise decision truthfully boils down to a black and white decision about what is right

and what is wrong. Intentionally harming others is wrong.

We have seen homes flooded. We have seen entire communities relocated due to

flooding. Flooding can take away more than property or things that can be replaced.

People who loose their homes or people who have lost the life of a loved one also

lose a part of their heart, part of their soul. No amount of money or compensation

can repair that type of damage, especially if, it is caused by a man-made flood.

Much has been said in recent weeks about how crop insurance plays into the

spring rise. It is amazing the Corps of Engineers would go this far to implement

a spring rise without taking a closer look at the crop insurance issues. Crop insurance is one of the most important tools farmers have to help manage risk within

their farming operations. The risks associated with the spring rise and the possibility of crop insurance failing to provide coverage is unacceptable and should be better

taken into consideration by the Corps of Engineers.

It is my hope this hearing will shed some light on the dangerous direction the

Corps of Engineers has taken with their plan to intentionally flood lands along the

Missouri River. I am grateful Congressmen Hulshof and Skelton have seen the need

for this hearing and thank you for this opportunity to share my thoughts. On behalf
46

of Farm Bureau, I appreciate your time and willingness to serve as Representatives

in Congress. I’d be happy to answer any questions you may have at this time.

STATEMENT OF WILLIAM BRYAN

My name is William Bryan. I am here on behalf of Missouri Attorney General Jay

Nixon. Attorney General Nixon regrets that he is unable to be here this morning,

but he wanted me to welcome the subcommittee members to Jefferson City and

thank them for their time and concern.

On November 23, 2005, Attorney General Nixon first questioned the impact that

an artificial spring rise may have on the crop insurance coverage paid for by Missouri farmers. The specific question we asked was, ‘‘will the Risk Management

Agency exclude from coverage losses caused or contributed to by the ’spring pulses’

described in the Corps’ draft Annual Operating Plan for 2006?’’ Surprisingly, despite

years of river management studies by the Federal Government, apparently no responsible agency had ever contemplated this important question. Without Attorney

General Nixon’s initiative, it is quite possible that the agencies never would have

considered how the Corps’ proposal disrupts the safety net for our farmers.

There are three important considerations this committee should take into account.

First, the spring pulses are expressly intended to mimic nature. They should be

considered ‘‘natural occurrences’’ since that is their purpose.

Second, if we assume that the spring pulses are not ‘‘natural occurrences’’ because

they are caused by intentional releases of water from Federal dams, then it is simply wrong for the Federal Government to impose this uninsured risk on our farmers.

If the dams did not exist, our farmers’ losses would be covered by crop insurance.

Third, this misbegotten policy is a problem for the farm community even if there

is no actual flood.

As part of our legal evaluation of the Corps’ plan, we reviewed the standard provisions of the basic crop insurance policy. In our opinion, the basic provisions should

be construed to cover losses caused or contributed to by the Crops’ ‘‘spring pulses.’’

After all, the very purpose of the ‘‘spring pulse’’ plan is to emulate natural events.

When the purpose of a Federal action is to imitate a natural occurrence to satisfy

the Endangered Species Act, it should be regarded as a natural occurrence for crop

insurance purposes. Although there is disagreement over whether the Crops’ plan

truly does that a question for another day given the RMA’s mission to preserve and

strengthen the economic stability of America’s agricultural producers through sound

risk management, we were confident that the RMA would interpret the basic provisions and the law to cover any losses that may arise.

While our confidence was boosted by the fact that the Corps’ intent was to mimic

nature, it was further bolstered by the fact that this was a Federal initiative sponsored by the Corps and the U.S. Fish & Wildlife Service. Surely the left hand of

the Federal Government wouldn’t deny insurance coverage for losses caused by the

right hand’s efforts to recreate a natural event on the grounds that the event was

not natural. Of course, our optimism was misplaced. The RMA expressly rejected

our interpretation and told us that any losses caused or contributed to by the

‘‘spring pulses’’ would not be covered by crop insurance.

The Corps could have acted swiftly to protect the farm community from this unintended consequence of its plans. Instead of taking responsible action to right this

wrong, however, the Corps tells us the risk of flooding is small. Nevermind that the

Corps has not yet published a single study that proves this rank speculation. Most

importantly, actual flooding isn’’t our only concern. The mere prospect that uninsured losses could occur has the potential to affect a farmer’s ability to get credit,

and that affects his ability to farm. Even without the slightest flooding, the Corps’

emasculation of the crop insurance program could take land out of production and

reduce farm income. At a minimum, it will make farming even more financially difficult, especially for our smaller producers.

Today, despite 15 years of study, the Corps has not taken the potential consequences on the farm safety net into account. It has carefully studied water conservation, power generation, navigation, and even minnow reproduction in the reservoirs, but it has never adequately considered the impacts of its operations on agriculture, and this failure is but one more example of the Corps’ institutional blind

spot regarding agriculture. Accordingly, although we remain convinced that the

spring pulse plan is wrong for many reasons, the Corps certainly should not implement that plan without mending the farm safety net. And it is my understanding

that the Corps has no intention of addressing this problem.

If, as these Federal agencies contend, the spring pulse experiment is an action

under the Endangered Species Act to benefit the Nation as a whole, then the burden
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should be borne by the Nation, not by river bottom farmers alone. The best way to

do that is to treat damages caused by a Federal experiment intended to replicate

natural conditions as losses due to ‘‘natural occurrences’’ under the crop insurance

basic provisions. Until agreement can be reached on that interpretation—which

seems unlikely—or suitable legislative changes made, the Corps should follow its

master manual and let Mother Nature provide the spring rise.

STATEMENT OF FRED FERRELL

Good morning Chairman Moran and members of the subcommittee. My name is

Fred Ferrell, director of the Missouri Department of Agriculture. As I come before

you this morning, I am very appreciative of your attention to policies set forth by

USDA’s Risk Management Agency (RMA) regarding potential crop damage caused

by spring pulses set forth by the U.S. Army Corps of Engineers.

This department I am charged to lead has the following mission statement: serving, promoting, and protecting the agricultural producers, processors, and consumers of Missouri’s food, fuel and fiber products. Agriculture is Missouri’s largest industry, represented by approximately $6 billion in farmgate production last year.

Our State is a national leader in beef, hay, turkey, and swine production. Our most

important agricultural ranking is that we are second in the number of farms and

farm families. This ranking is one that I’m the proudest of and one that I will fight

the hardest to preserve.

Agriculture is a challenging business, not unlike other industry sectors. However,

I cannot name another industry with a greater level of risk adversity. In Missouri,

as in many other states, our farmers are reeling from the effects of a devastating

drought, as well as ever-increasing input costs and land values. These factors are

just a few examples of issues out of our immediate control that place pressure on

the diminishing profit margins of our constituents.

Despite these pressures, the Federal Government has decided to place another

critical issue on the backs of Missouri’s bottomland farmers through the implementation of the 2005-06 Annual Operating Plan (AOP) calling for two spring ‘‘pulses’’

on the Missouri River in March and May 2006. In the AOP, the Corps refers to the

plan as ‘‘adaptive management...one tool to preclude jeopardy to pallid sturgeon.’’ I

am here this morning to tell you that Missouri’s bottomland farmers will be the

ones placed in jeopardy by this unnecessary experiment in which Missouri remains

fundamentally opposed.

To make matters worse, RMA has made clear that any losses in crop production

associated with the Corps’ proceedings cannot be covered by Federal crop insurance

policies. RMA states: ‘‘Given the U.S. Army Corps of Engineers confidence that

flooding is not expected to occur as a result of the releases, USDA does not anticipate that there will be any losses attributable solely to the releases.’’ This statement

is very disturbing to me. Missouri officials have advised at every occurrence that

in the lower River basin, a natural spring ‘‘pulse’’ takes place each and every year.

The effects of adding another one to three feet of water to our farmland at a time

when extra water is not needed could be devastating. Crops could very well be destroyed, or at a minimum, costly delays in planting could be created, leading to

lower yields at harvest time. These lower yields equate to depressed farm income,

which in turn, hurts our communities and our State’s economy.

The Missouri River’s bottomlands are home to some of the most fertile and productive cropland in our State, with river corridor counties contributing over $1 billion to Missouri’s economy. This does not take into account ripple effects created by

supporting industries such as transportation, livestock, grain handlers, and countless others.

I recently returned from Washington DC, where the annual mid-year National Association of State Departments of Agriculture (NASDA) meeting was held. I want

to inform you that NASDA supports Missouri’s opposition to the spring ‘‘pulse’’ on

the Missouri River. At my request, NASDA President Carlton Courter of Virginia

sent letters to the RMA and the Federal Crop Insurance Board of Directors advising

that any crop losses caused by a Corps decision to intentionally flood the Missouri

River should be covered by the RMA. This action is significant, as NASDA as a

whole represents many constituencies and interest groups.

To conclude, I again want to thank you, Chairman Moran and subcommittee

members, for hosting this hearing in Jefferson City. I trust in your ability and judgment to do everything in your power to ensure that our farmers—the most efficient

in the world—are not subjected to further undue harm.
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