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93–892 PDF 2004

ENDANGERED SPECIES ACT’S IMPACT ON SMALL

BUSINESSES AND FARMERS

FIELD HEARING

BEFORE THE

SUBCOMMITTEE ON RURAL ENTERPRISES, 

AGRICULTURE, & TECHNOLOGY

OF THE

COMMITTEE ON SMALL BUSINESS 

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

WASHINGTON, DC, FEBRUARY 23, 2004

Serial No. 108–54

Printed for the use of the Committee on Small Business

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house 

COMMITTEE ON SMALL BUSINESS 

DONALD A. MANZULLO, Illinois, Chairman 

ROSCOE BARTLETT, Maryland, Vice 

Chairman 

SUE KELLY, New York 

STEVE CHABOT, Ohio 

PATRICK J. TOOMEY, Pennsylvania 

JIM DEMINT, South Carolina 

SAM GRAVES, Missouri 

EDWARD SCHROCK, Virginia 

TODD AKIN, Missouri 

SHELLEY MOORE CAPITO, West Virginia 

BILL SHUSTER, Pennsylvania 

MARILYN MUSGRAVE, Colorado 

TRENT FRANKS, Arizona 

JIM GERLACH, Pennsylvania 

JEB BRADLEY, New Hampshire 

BOB BEAUPREZ, Colorado 

CHRIS CHOCOLA, Indiana 

STEVE KING, Iowa 

THADDEUS MCCOTTER, Michigan 

NYDIA VELA ́ ZQUEZ, New York 

JUANITA MILLENDER-MCDONALD, 

California 

TOM UDALL, New Mexico 

FRANK BALLANCE, North Carolina 

ENI FALEOMAVAEGA, American Samoa 

DONNA CHRISTENSEN, Virgin Islands 

DANNY DAVIS, Illinois 

GRACE NAPOLITANO, California 

ANI ́BAL ACEVEDO-VILA ́ , Puerto Rico 

ED CASE, Hawaii 

MADELEINE BORDALLO, Guam 

DENISE MAJETTE, Georgia 

JIM MARSHALL, Georgia 

MICHAEL MICHAUD, Maine 

LINDA SA ́ NCHEZ, California 

BRAD MILLER, North Carolina 

[VACANCY]

J. MATTHEW SZYMANSKI, Chief of Staff and Chief Counsel 

PHIL ESKELAND, Policy Director 

MICHAEL DAY, Minority Staff Director

SUBCOMMITTEE ON RURAL ENTERPRISES, AGRICULTURE AND 

TECHNOLOGY 

SAM GRAVES, Missouri, Chairman 

BILL SHUSTER, Pennsylvania 

SUE KELLY, New York 

SHELLEY MOORE CAPITO, West Virginia 

MARILYN MUSGRAVE, Colorado 

PATRICK TOOMEY, Pennsylvania 

FRANK BALLANCE, North Carolina 

DONNA CHRISTENSEN, Virgin Islands 

ED CASE, Hawaii 

MICHAEL MICHAUD, Maine 

BRAD MILLER, North Carolina

PIPER LARGENT, Professional Staff

(II) 

C O N T E N T S 

WITNESSES

Page 

Hargrave, Ms. Rosemary, Missouri River Management Annual Review and 

Update ................................................................................................................... 5

Hall, Mr. Dale, U.S. Fish and Wildlife Service ..................................................... 6

Wells, Mr. Mike, Missouri Department of Natural Resources ............................. 9

Keith, Mr. Kevin, Missouri Department of Transportation ................................. 12

Hurst, Mr. Blake, Missouri Farm Bureau ............................................................. 25

DeShon, Mr. Dick, St. Joseph Regional Port Authority ....................................... 29

Smith, Mr. Chad, Nebraska Chapter of American Rivers .................................... 30

Davis, Mr. Paul, Interstate Marine Terminals, Inc. ............................................. 32

Hanson, Mr. Bruce, MFA, Inc. ............................................................................... 34

APPENDIX

Opening statements: 

Graves, Hon. Sam ............................................................................................. 43

Blunt, Hon. Roy ................................................................................................ 45

Gibbons, Hon. Jim ............................................................................................ 47

Prepared statements: 

Wells, Mr. Mike, Missouri Department of Natural Resources ..................... 49

Keith, Mr. Kevin, Missouri Department of Transportation .......................... 60

Davis, Mr. Paul, Interstate Marine Terminals, Inc. ...................................... 64

Smith, Mr. Chad, Nebraska Chapter of American Rivers ............................ 66

Hanson, Mr. Bruce, MFA, Inc. ........................................................................ 84

Hurst, Mr. Blake, Missouri Farm Bureau ...................................................... 86

Hall, Mr. Dale, U.S. Fish and Wildlife Service .............................................. 89

(III) 

(1)

THE ENDANGERED SPECIES ACT’S IMPACT 

ON SMALL BUSINESSES AND FARMERS 

MONDAY, FEBRUARY 23, 2004

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON RURAL ENTERPRISES, AGRICULTURE, AND TECHNOLOGY, COMMITTEE ON SMALL BUSINESS, Washington, D.C. 

The Subcommittee met, pursuant to call, at 9:30 a.m., at the St. 

Joseph Riverfront Hotel, 102 South 3rd Street, St. Joseph, Missouri, Hon. Sam Graves presiding. Present: Representatives Graves, Blunt, and Gibbons. 

Chairman GRAVES. We’ll bring this hearing to order. I want to thank everybody for turning out today. I know this is a very important issue. 

This is the Subcommittee on Rural Enterprises, Agriculture and Technology, the Small Business Committee, and we’re going to be 

examining the estimated impact of the Endangered Species Act as 

it’s having on small businesses and farmers. I’m going to give my opening statement and then turn to Rep- resentative Blunt and Representative Gibbons to give theirs, but I 

would like to very much thank them for being here. Our neighbor 

to the south, Representative Blunt, is very, very interested in this 

issue. They have a stake in this issue too. Representative Jim Gibbons from Nevada has joined us today. He is the Vice Chairman 

of the Resources Committee. They have legislative jurisdiction over 

this particular issue, and I very much appreciate both of you being 

here today. When the Endangered Species Act was passed in 1973, there were 109 species listed as endangered, such as the bald eagle. 

Today there are over 1,200 species listed as endangered, with 250 

more considered candidates for ESA listing, and another 4,000 species that are designated as species of concern. I’m certain that 

when legislation was passed 30 years ago, no one could have foreseen because of the interior least tern, the piping plover, and the 

pallid sturgeon, the commerce of the Missouri River would effectively cease to exist. This will cause a major disruption for all of 

those who depend on the river for their livelihood. 

When the U.S. Fish and Wildlife Service came out with their December 16, 2003, Biological Opinion, it stated the area trade on the 

river needed a mandated spring rise and split navigation season. 

The decision will have a large impact on people and businesses 

that rely on the river for day-to-day operations. Annual retail ecoVerDate 0ct 09 2002 17:32 Aug 16, 2004 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 G:\HEARINGS\93892.TXT MIKEA
2

nomic benefits from the Missouri River commerce are estimated at 

between $75 and $200 million a year. The Army Corps of Engineers estimates economic losses of at least $7 million to commercial 

navigation and train terminals as a result of flow decline below 

minimum navigation service levels. Already the prospect of summer lows caused two major shippers on the Missouri River to cancel their operation. This creates many problems for our farmers 

that utilize barge traffic to ship their goods at the cheapest rate. 

This financial burden is just another problem facing farmers in 

Missouri who continue to face season after season of drought. Any 

additional expenses are detrimental to their survival. The farmers 

themselves are becoming endangered species with only two percent 

of the population taking on this important enterprise. Barge traffic 

along the Missouri River also provides a safer and cleaner mode to 

transport goods. It takes the trucks off already beaten roads, reduces congestion, and limits the amount of exhaust in our atmosphere. Additionally, man-made river flows may increase the risk of 

flooding or create drainage problems along the Missouri River and 

its tributaries. 

Our government should be doing what it can to prevent flooding 

along the river, not exacerbate it. Further inland, several main customers, rural and urban, depend on the Missouri River to supply 

their water and electricity in the heat of summer and the dead of 

winter. This is of particular concern with summer lows that may 

adversely affect the ability of utilities to meet the electricity needs 

of their customers during critical electrical demands. Still others 

yet rely on the river for the most basic needs of drinking water. 

Just like here in St. Joe. 

In my view the Fish and Wildlife Service has not taken into account the very basic negative disruptions the submitted biological 

survey will afflict on people and their lives, as well as the local 

economy. While we should do everything we can to protect all of 

God’s creatures, we shouldn’t place animals or the lives of animals 

over the lives of human beings. 

{Chairman Graves’ statement may be found in the appendix.] 

And now I’m going to turn to Representative Blunt for his opening statement. 

Mr. BLUNT. Mr. Chairman, thank you for holding this hearing 

and special thanks to our friend, Congressman Gibbons from Nevada who came all the way here to talk about this act and the impact it’s having on our state and share with us his knowledge as 

Vice Chairman of the Resources Committee the impact it has had 

on other places. 

The Endangered Species Act is an example of the danger of unintended consequences. What began as a well-intentioned effort to 

protect the environment and our wildlife has had a profound impact on business in the State of Missouri and across the nation. 

Since the law’s enactment, the list of endangered species has grown 

with each year, yet even in instances where the threat of extinction 

has been removed, it remains very difficult to remove a species 

from the list. 

I’m looking forward to a productive discussion of ways Congress 

can address the effects this law is having on families and businesses here on the Missouri River and across the country. 

3

Over-zealous environmental policy or misinterpreted environmental regulations can and do profoundly affect businesses and 

jobs at a time when we’re working hard to get our economy back 

on track and create a job for every American who wants one. It’s 

worth examining what roadblocks the federal government has unintentionally created. I think we’re here today because the ESA 

needs another look. Chairman Graves has called for this hearing 

because the ESA is now being used to disrupt and even prevent 

commerce along the Missouri River, affecting the livelihood of 

transportation providers, shippers, and farmers, as well as the 

communities that they live in and create job opportunities in. 

For example, the Fish and Wildlife Service is recommending that 

the flow of the Missouri River be changed to accommodate the 

habitat of both the piping plover and the pallid sturgeon. Such a 

move will dramatically alter commerce on the Missouri River and 

hurt the hundreds of people who depend on the river to make their 

living. 

We should also strive to strike a delicate balance between people 

and nature. However, to drastically alter the flow of the river, increase the possibility of flooding, put many companies out of business, cut jobs, and perhaps even create electrical power and drinking water shortages doesn’t make much sense to me. 

I think your efforts, Chairman Graves, and the efforts of this 

staff to seek input and call attention to the problems here are wellfounded. I’m glad to be able to join you today, and thank you for 

letting me be here. I look forward to the testimony of these great 

panels that you’ve put together. 

[Representative Blunt’s statement may be found in the appendix.] 

Chairman GRAVES. Mr. Gibbons. 

Mr. GIBBONS. Well, hopefully they can hear me. First I want to 

thank you, Chairman Graves, for inviting me to attend this hearing, and I want to congratulate Missouri. Missouri. I’ve learned 

how to pronounce it now that I’ve been here so long. Most people 

don’t pronounce Nevada correctly. They say Nevada—it’s Nevada—

but I want to congratulate the people of Missouri for electing two 

wonderful representatives of Congress who stand up for the rights 

of people like you sitting in this audience who understand the 

issues, who are not timid about speaking up and trying to set the 

course straight. 

Although I’m not a member of this Committee, the future of the 

Endangered Species Act, of course, remains at issue for me as the 

Vice Chairman of the Full Resource Committee which continues to 

study the law in an effort to find ways to protect both species and 

the people and their rights. 

Originally this law was well-intended; intended to preserve species that were going into extinction, like the grizzly bear and the 

bald eagle. However, after decades of languishing without modernization, we have found that now it is used as a tool of abuse. 

A tool by some groups to stop and prohibit both people and efforts 

to have a living or to create a working environment that allows for 

them to succeed. 

The one aspect of the Endangered Species Act that especially 

concerns me is they give the federal government carte blanche over 

4

private property without the responsibility of compensating the 

owners for either loss or denial of use or financial loss as a result 

of that denial. Now, this is nothing more than a governmental taking which is prohibited by the Fifth Amendment of the Constitution, and let me explain that nearly 80 percent of the listed species 

depend on private property for their habitat. 

If landowners provide suitable habitat for the endangered species, they run the risk of their property being subject to severe governmental regulations or an outright restriction of the use of enjoyment which just recently was determined to be an incremental government taking in recent court cases. Unfortunately, the interpretation and implementation of the ESA has instilled a fear and resentment in law-abiding citizens from ever participating in the 

ESA. 

The endangered species are now seen by most private property 

owners as a burden on them, when they should be actually celebrating the fact that there is an endangered species there. 

Now, Aldo Leopold, an environmental philosopher, once said, and 

I’ll quote: ‘‘Conservation will ultimately boil down to rewarding the 

private landowner who can serve the public interest,’’ end quote. 

So Ladies and Gentlemen, only when protection of private property rights does not conflict with environmental protection will we 

have the best guarantee of environmental protection. After all, who 

can be expected to be a better steward of the land than he or she 

who owns it, and if the Endangered Species Act are valuable because—or the endangered species are valuable because they are 

rare, they should be viewed as an asset for a landowner, not a liability. Yet that unfortunately is the case we have today. 

The ESA needs to be reformed in a way that will force the Fish 

and Wildlife Service to work with the private landowner instead of 

bullying them. When a Fish and Wildlife agent shows up at the 

door of a citizen’s farm or ranch or other property, they should be 

holding a check instead of a gun. We should be compensating the 

landowners for their remarkable stewardship, not punishing them. 

There are many aspects of this intrusive law yet to be scrutinized, 

but I will end my comments with simply saying this: By reducing 

the amount of federal land use control, people will be able to manage their land for the good of the species without worrying that the 

Feds will come in and mandate that all activity must cease on their 

property. 

So again, Mr. Chairman, I want to thank you for inviting me 

here today. I look forward to hearing testimony of the panel, and 

I look forward to working with you and Mr. Blunt on this very important issue. Thank you. 

[Representative Gibbon’s statement may be found in the appendix.] 

Chairman GRAVES. Thank you. All the statements of the witnesses and the Members will be placed in the record in their entirety, just so everybody knows. We’ve got two panels today. We’re 

going to start with the first panel, and then we will seat the second 

panel after they are finished. We will do the first panel, then have 

questions, and I’d ask that you try to limit your opening statements to five minutes, if you can. 

5

We’re going to start out with Rose Hargrave, and Rose is representing the U.S. Army Corps of Engineers today, and she’s representing specifically the Civil Works and Management Chief of the 

Missouri Water Basin Water Management; is that correct? Did I 

get that right? 

Ms. HARGRAVE. That’s correct. 

Chairman GRAVES. A long-winded title, but I appreciate you 

being here today and I look forward to your testimony. 

STATEMENT OF ROSEMARY HARGRAVE, PROJECT MANAGER, 

MISSOURI RIVER MANAGEMENT ANNUAL REVIEW AND UPDATE 

Ms. HARGRAVE. Mr. Chairman and Members of the Subcommittee, I’m here today, Gentlemen, to testify on behalf of Lawrence Cieslik, who is our Director of Civil Works for the Missouri 

River and Chief of Missouri River Basin and Water Management. 

My name is Rosemary Hargrave, and I’m the Project Manager 

for the Missouri River Master Manual Review and Update. I’m 

honored to be here today to testify on behalf of the Endangered 

Species Act’s impact on small business and farmers. 

The Missouri River Mainstem Reservoir System consists of six 

dam and reservoir projects. These projects were constructed and 

are operated and maintained by the Corps of Engineers on the Missouri River. They’re operated for the Congressionally-authorized 

purposes of flood control, navigation, irrigation, hydropower, water 

supply, water quality, recreation, and fish and wildlife habitat. To 

achieve these multiple benefits, the projects are operated as an integrated system. 

The Missouri River Master Water Control Manual was first published in 1960 and subsequently revised during the 1970s. It presents the water control and operational objectives for the integrated operation of the Missouri River Mainstem Reservoir System. 

In 1989 the Corps reinitiated a review of the Master Manual in 

consideration of other laws and regulations, including the Endangered Species Act, the National Environmental Policy Act, and the 

President’s Council on Environmental Quality Regulations pursuant to NEPA. 

In accordance with the Endangered Species Act, the Corps must 

ensure in consultation with the U.S. Fish and Wildlife Service that 

any action carried out by the Corps is not likely to jeopardize the 

continued existence of any federally-listed threatened or endangered species or result in the destruction or adverse modification 

of their critical habitats. 

The species of interest in regard to these projects are the pallid 

sturgeon, which is endangered, the interior least tern, which is endangered, and the piping plover, which is threatened. 

The Corps entered into formal consultation with the U.S. Fish 

and Wildlife Service which culminated in a U.S. Fish and Wildlife 

Service Missouri River Biological Opinion issued in November of 

2000. The 2000 BIOP concluded that the Corps’ proposed action 

jeopardized the continued existence of the listed pallid sturgeon, 

piping plover, and interior least tern, and the U.S. Fish and Wildlife Service recommended a reasonable and prudent alternative to 

avoid jeopardy. 

6

On November 3rd, 2003, the Corps requested reinitiation of formal consultation. The request for reinitiation was based on the existence of new information regarding the effects of Mainstem reservoir operations on the species, as well as the new critical habitat 

designation for one of the listed species. 

The Corps’ description of this information and of the proposed action was set forth in a detailed biological assessment which accompanied the request to reinitiate the consultation. 

On December 16th, 2003, and in response to the Corps’ request 

for the reinitiation of consultation, the Service issued an amendment to its 2000 BIOP. The 2003 amended BIOP includes a reasonable and prudent alternative for the Corps’ proposed operations 

that according to the Fish and Wildlife Service, if implemented, 

would avoid jeopardizing the continued existence of the endangered 

pallid sturgeon. 

The reasonable and prudent alternative recommends operations 

that were not proposed in the Corps’ biological assessment. The 

RPA presented in the 2000 amended BIOP calls for a low summer 

release from the Mainstem Reservoir System and includes the provision that this low summer release may be modified in consultation with the U.S. Fish and Wildlife Service if 1,200 acres of shallow water habitat for the endangered pallid sturgeon are constructed in the river reaches between Sioux City, Iowa, and 

Omaha, Nebraska. 

The Corps is currently working with the Fish and Wildlife Service to determine if plans for near-term shallow water habitat are 

sufficient to meet the intent of the 2003 amended BIOP, therefore 

allowing the Corps to operate for all Congressionally-authorized 

purposes this year. The 2003 amended BIOP also called for a 

spring rise but allows a two-year study to determine if the magnitude along with the frequency and duration of that spring rise 

will ensure the continued existence of the pallid sturgeon. 

Thank you for providing me the opportunity to present this testimony to you, and that concludes my testimony, and I’ll take any 

questions later. 

Chairman GRAVES. Okay. We will go through all of them first 

and then take questions. Thank you very much. 

Dale Hall is with us today, and Dale is the Regional Director of 

the U.S. Fish and Wildlife Service. I appreciate you being here, and 

I look forward to your testimony. 

STATEMENT OF DALE HALL, REGIONAL DIRECTOR, U.S. FISH 

AND WILDLIFE SERVICE 

Mr. HALL. Mr. Chairman and Members of the Subcommittee, I 

thank you for the opportunity to provide testimony regarding the 

U.S. Fish and Wildlife Service’s recent amendment to our 2000 biological opinion on the Army Corps of Engineers’ operation of the 

Missouri River. I am Dale Hall, Director of the Service’s Southwest 

Region headquartered in Albuquerque, New Mexico. 

The Service is the primary federal agency responsible for conserving, protecting and enhancing fish, wildlife and plants and 

their habitats for the continued benefit of the American people. 

Part of this responsibility includes implementing the Endangered 

Species Act. Under Section 7 of the Endangered Species Act, fedVerDate 0ct 09 2002 17:32 Aug 16, 2004 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 G:\HEARINGS\93892.TXT MIKEA
7

eral agencies must, in consultation with the Service, ensure that 

activities they authorize, fund or carry out are not likely to jeopardize the existence of an endangered or threatened species, nor result in the adverse modification of critical habitat. In cases where 

the service determines that the proposed action will jeopardize the 

species, it must issue a biological opinion offering reasonable and 

prudent alternatives that provide suggested modifications to the 

project to avoid jeopardy to the species. 

In 2000 the Service provided the Corps with a biological opinion 

on the operation of the dams on the Missouri River. That opinion 

determined that the Corps’ proposed operations would jeopardize 

the existence of three listed species: The threatened piping plover 

and the endangered interior least tern and pallid sturgeon. The 

Service’s 2000 biological opinion provided the Corps with RPAs 

that would avoid jeopardy to those species. 

In 2003 the Corps requested to reinitiate consultation based on 

new mortality data for terns and plovers, designation of critical 

habitat for plovers in 2002, and new information regarding flow enhancement. Specifically, the Corps proposed to remove the requirements for a spring rise and low summer flows from Gavin’s Point 

Dam. 

A team of Service experts, along with two technical experts from 

the U.S. Geological Survey, reviewed the most recent scientific data 

and signed an amended biological opinion on December 16, 2003. 

In reviewing the most recent scientific information, the team determined that the status of both piping plovers and interior least 

terns on the river has been improving in recent years. Piping plover numbers have increased by 460 percent within the Missouri 

River basin since 1997, and pair counts now exceed the recovery 

goals. The number of adult least terns has increased since the 2000 

biological opinion, and the current estimate of more than 12,000 interior least terns nationwide exceeds the goal of 7,000, although 

the goal of 2,100 terns for the Missouri River itself has not been 

met. 

The status of the pallid sturgeon, however, has not improved, 

and the species continues to be of significant concern to Service biologists. Over the next two years, the Corps has the opportunity to 

evaluate several measures that are expected to benefit the sturgeon 

in particular, including the feasibility of a temperature control device at Ft. Peck. 

After reviewing the recent data, the team accepted many elements of the Corps’ proposal and developed an amended opinion 

that retains the vast majority of the measures included in the 2000 

biological opinion but incorporates the Corps-proposed performance-based approach. This approach gives the Corps greater flexibility to manage the river while providing equal or greater conservation benefits to piping plover, interior least tern, and pallid 

sturgeon. The team concurred that the Corps’ proposed approach 

would continue to avoid jeopardy to the piping plover and least 

tern but could not concur that jeopardy would be avoided for the 

pallid sturgeon. 

The amended biological opinion includes an aggressive watershed 

approach, habitat creation and restoration, test rises along the 

river, and an adaptive management and monitoring program. The 

8

opinion includes specific measures to address spawning cues and 

habitat improvement for sturgeon. This comprehensive approach 

builds on measures endorsed by the National Academy of Science 

when it conducted its review of the Missouri River science in 2000. 

During the consultation process, the Service worked with the 

Corps to develop RPAs, Reasonable Prudent Alternatives, that are 

consistent with the intended purpose of the Corps’ action and are 

economically and technically feasible but yet would avoid the likelihood of jeopardizing the continued existence of listed species or resulting in the destruction or adverse modification of critical habitat. 

Specifically, the 2003 amendment to the 2000 biological opinion 

accepts several Corps substitutions to the 2000 reasonable prudent 

alternatives that will, in our opinion, continue to avoid jeopardy for 

the piping plover and interior least tern. In addition, the new RPA 

elements were identified to avoid jeopardy for the pallid sturgeon. 

These RPAs direct the Corps to construct sandbar habitat in the 

manner that will benefit the needs of piping plovers and interior 

least terns; before 2006 complete studies to determine the appropriate flow out of Gavin’s Point Dam to achieve a bimodal spring 

spawning cue pulse and summer habitat flow, impediments to 

achieving this flow regime and mitigation measures for these impediments, for the 2004 annual operating period, implement a summer habitat flow at or below 25,000 cubic feet per second out of 

Gavin’s Point Dam during the month of July or otherwise provide 

a sufficient shallow water habitat for the pallid sturgeon and implement the amendment’s flow management plan, which includes 

two spring spawning cue pulses and a summer flow; and if the 

Corps is unable to develop a flow management plan by 2006, then 

there is a prescription for a spring rise, a second spring rise of 

40,000 cfs. 

Since the issuance of the amended biological opinion, the Service 

has met with the Corps numerous times to answer questions regarding the opinion and to assist the Corps in implementing the 

opinion’s RPAs. Within the framework of the amended biological 

opinion, these RPAs provide considerable flexibility to the Corps regarding how and where specific measures are undertaken, including opportunities to develop appropriate management steps before 

prescribed measures would be required in 2006. 

We are also currently working with the Corps to determine if 

plans for near-term shallow water habitat are sufficient to meet 

the intent of the amended biological opinion, therefore allowing the 

Corps to operate for all Congressionally-authorized programs this 

summer. Consequently, we expect to continue to work closely with 

the Corps through the 2004 operation and as they implement the 

opinion in the future. 

In sum, the service conducted a thorough review of all the information available since the 2000 biological opinion and determined 

that the Corps’ proposed operations would jeopardize the continued 

existence of the pallid sturgeon. The Service has concurred with 

many RPA element substitutions offered by the Corps and recommended several others to avoid jeopardy to the piping plovers, 

interior least terns and pallid sturgeon that should allow the Corps 

9

and stakeholders along the river flexibility to implement the 

amended biological opinion. 

Mr. Chairman, this concludes my prepared statement. I would 

also like to recognize that I have Charles Scott, a field supervisor 

for the Missouri operations office, here with me as well. We will be 

happy to answer questions at the appropriate time. 

[Mr. Hall’s statement may be found in the appendix.] 

Chairman GRAVES. Thank you, Mr. Hall. Next we have Mike 

Wells, who is the Chief of Water Resources with the Missouri Department of Natural Resources. I appreciate you being here. 

STATEMENT OF MIKE WELLS, CHIEF OF WATER RESOURCES, 

MISSOURI DEPARTMENT OF NATURAL RESOURCES 

Mr. WELLS. Thank you. Good morning, Mr. Chairman. 

Again, my name is Mike Wells. I am Chief of Water Resources 

for the State of Missouri. I’d like to thank Congressman Graves for 

having this hearing today and for inviting me to give testimony on 

this very important issue. My position is located within the Missouri Department of Natural Resources, which is the agency that 

has statutory responsibility for the state’s water resources. I represent the state in all interstate water issues. 

Let me begin by saying that the State of Missouri is truly concerned about protecting endangered species and natural habitat 

along our rivers. In fact, we were one of the earliest proponents for 

increasing funding for habitat restoration projects along the Missouri,a position we continue to support. We simply take issue with 

some of the ways that the Endangered Species Act is being applied 

to the management of the Missouri River. We strongly believe that 

there are common-sense ways to protect the species without harming citizens who rely upon the Missouri River for their many uses. 

The Missouri River is a vital resource to the state of Missouri, 

providing drinking water to over two million of our citizens, cooling 

water for our utilities, water to support navigation, unique recreational opportunities, and valuable fish and wildlife habitat. We 

are concerned that changes in the management of the Missouri 

River, that some have characterized as necessary to comply with 

the Endangered Species Act, would be adverse to many of these 

uses. 

In December 2003 the U.S. Fish and Wildlife Service released an 

amended biological opinion that included very specific summer low 

flows of 25,000 cubic feet per second below Gavin’s Point Dam on 

the Missouri River, purportedly to protect three threatened and endangered species. The reduced summer flow required in this opinion will eliminate navigation as a viable transportation mode, 

thereby eliminating jobs of those depending upon the river commerce for their livelihoods and increasing costs to farmers. These 

summer low flows will also increase the costs to Missourians for 

electricity and drinking water. 

Under the auspices of protecting endangered species, flows were 

restricted to levels that resulted in record low summer flows the 

past two years. In the spring of 2002, in an attempt to conserve 

water in the midst of a drought, the U.S. Army Corps of Engineers 

elected to only release the minimum amount of water necessary to 

support navigation. As tributary inflows began to decrease, it beVerDate 0ct 09 2002 17:32 Aug 16, 2004 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 G:\HEARINGS\93892.TXT MIKEA
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came apparent in early July that releases from Gavin’s Point Dam 

would need to be increased in order to support navigation. It was 

at that time that the U.S. Fish and Wildlife Service reversed course 

and decided not to allow piping plovers and interior least terns to 

be moved, a practice that had been successfully utilized in the past. 

Because of this, the Corps was prevented from increasing releases above 25,500 cubic feet per second to meet the needs of 

downstream users. By July 5th flows were so low that navigation 

on the Missouri River was halted. During this period of time, the 

Missouri River had the lowest recorded summer low flows since the 

Missouri River reservoir system was put in operation in the 1950s. 

The following impacts were felt by Missourians due to the summer low flows that year: Transportation costs for farmers and others were increased because navigation was not supported on the 

Missouri River for almost two months; water levels at Kansas City 

were 1.5 feet below the minimum needed to support navigation; 

river temperatures exceeded the state water quality standards for 

eight days; drinking water facilities, including Kansas City and St. 

Louis, had taste and odor problems and additional pumping 

andtreatment costs; power plants that use the river for cooling had 

generating capacity reduced; River Barge Excursions, Inc., canceled 

a riverboat trip from St. Louis to Sioux City, Iowa, due to low 

flows; river contracts with vendors along the river had to be canceled, impacting local economies up and down the river. The company estimated it lost $1 million. 

Again, in the summer of 2003, a court order requiring the Corps 

to comply with the Service’s controversial November 2000 biological 

opinion caused releases to a minimum of 25,000 cubic feet per second during the months of July and August and at one point for 

three days in mid-August reduced all the way to 21,000 cubic feet 

per second. 

As a result, again new record-low flows for the summer months 

were established in this period. Due to the summer low flows, navigation was not supported for approximately 40 days, drinking 

water utilities again experienced taste and odor problems, and increased treatment and pumping costs, problems throughout the 

river system. 

Not only does reduced flows impact Missouri River uses, it can 

also impact the Mississippi as we saw in 2003 when the low flows 

on the Missouri River contributed to barge groundings and suspension of navigation on the Mississippi River near St. Louis. At the 

same time the low water trough from the Missouri River reached 

the Mississippi River, navigators began to experience groundings 

and the U.S. Coast Guard closed the Mississippi River to navigation for several days. At that time the Missouri River was supplying almost 60 percent of the flow to the Mississippi River at St. 

Louis. 

Despite the economic harm inflicted on Missourians in the past 

two years, the summer low water flows mandated by the Service’s 

recent biological opinion for the next two years are virtually identical to those we experienced in 2002 and 2003. 

In addition to summer low flows, the opinion also mandates a 

man-made spring rise of up to 20,000 cubic feet per second to as 

much as 40,000 cubic feet per second that would put Missouri comVerDate 0ct 09 2002 17:32 Aug 16, 2004 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 G:\HEARINGS\93892.TXT MIKEA
11

munities and river-bottom farmers at greater risk of flooding. The 

Missouri River is free-flowing for over 800 miles below Gavin’s 

Point Dam to the confluence of the Mississippi River with over 550 

of these miles being within the state of Missouri. Water released 

from Gavin’s Point Dam can take from 10 to 12 days to travel this 

distance. Even with low river stages, an increase in releases from 

Gavin’s Point Dam can increase the river flows in the state of Missouri. As you know, springtime can be very wet in Missouri, and 

the Missouri River is prone to sudden rises. Once water is released 

from Gavin’s Point Dam, it cannot be retrieved. 

In May of 2002 the conditions on the lower Missouri River would 

have been ideal for what we call a man-made spring rise. In other 

words, the river stages were low. In mid-May, the Missouri River 

rose over 17 feet in less than three days at Boonville. If an additional 20,000 cubic feet per second of water had been released from 

Gavin’s Point Dam, the spring rise as prescribed by the Service’s 

opinion would have reached Boonville at the same time as the flood 

peak, adding an additional 1.3 feet to the flood height. 

An examination of historical flow data at Boonville shows that 

for the April through July period each year, over 75 percent of the 

time we exceed flood stage during that period of time. This shows 

that Missouri already experiences a spring rise in most years without additional water being released out of Gavin’s Point Dam. 

Our greatest concern is that the Endangered Species Act is once 

again being administered in a very prescriptive manner. The Service has mandated actions based on questionable science with little 

or no regard for the significant adverse environmental and economic consequences of this action. The Service is mandating actions with disregard for the many other uses of the resource. 

The Service’s actions are based on a dated analysis of less than 

30 river miles that have changed significantly since last surveyed 

and are likely not representative of the river as a whole. 

As another example of poor scientific reasoning behind the Service’s opinion, the Service has promoted the summer low flow on the 

Missouri River as mimicking the natural hydrograph. Yet the low 

flow period the Service is mandating in the month of July was actually the second highest month under the natural river condition. 

With a mean flow of about 54,000 cubic foot per second, this is 

twice what is being prescribed by the Service. 

Limiting the flows to 25,000 cubic feet per second during July 

would provide less than one half of the natural hydrograph immediately below Gavin’s Point Dam with no clear benefit but causing 

obvious pain to those who depend on the river. 

The Missouri Department of Natural Resources and Conservation have championed a summer flow regime that we believe will 

benefit the fish and wildlife of the Missouri River while supporting 

all the other uses. This plan suppresses evacuation of excess water 

when possible during August and September when flows were historically low. It proposes providing a flow of 41,000 cubic feet per 

second at Kansas City in six out of ten years. This flow level supports full-service navigation and is adequate to support water supply and power plant cooling. We believe that this is a commonsense plan that provides additional habitat for the species while 

protecting the other uses of the river. 

12

The recent National Academy of Science report suggests that we 

seek ‘‘low hanging fruit’’ by focusing habitat development on the 

lower Missouri River where we already have a plan that allows 

habitat to develop and take advantage of this situation. 

In the recent opinion the summer low flows are used to create 

shallow water habitat for the species. However, physical habitat 

restoration projects can be accomplished that take advantage of existing flows, thereby making drastic flow changes unnecessary. In 

the areas of the Missouri River where physical habitat improvements have been made, shallow water habitat is available across 

a wide range of flows. We just visited with the U.S. Geological Survey recently to look at some of the data on it. This means that 

flows that are beneficial for drinking water supply, power generation, and navigation can also meet the habitat needs of endangered 

species. 

Let me reiterate that the State of Missouri is truly concerned 

about protecting endangered species and natural habitat along our 

rivers, but we believe that there are common-sense ways to protect 

the species without harming our citizens who rely on the Missouri 

River for all other beneficial uses. 

Again, thank you for the opportunity to testify before this Committee. I would be glad to answer any questions. 

[Mr. Wells’ statement may be found in the appendix] 

Chairman GRAVES. Thank you, Mr. Wells. We will next hear 

from Kevin Keith, who is the Chief Engineer for the Missouri Department of Transportation. I appreciate you being here. I look forward to your testimony. 

STATEMENT OF KEVIN KEITH, CHIEF ENGINEER, MISSOURI 

DEPARTMENT OF TRANSPORTATION 

Mr. KEITH. Mr. Chairman, thank you. I am Kevin Keith, Chief 

Engineer for the Missouri Department of Transportation. I’m going 

to give you a little different perspective on this issue. I’m not a scientist, I’m not an environmental expert, and as such, it’s not my 

place to talk about the environmental impact of reduced flow on 

the Missouri River. I really don’t know whether changing the river’s flow will help or hurt endangered species. I do know that lower 

flows on the Missouri River will essentially extinct transportation 

as it is. 

The Missouri River is controlled by a series of dams that form 

several pools for the intended purposes of flood control and navigation as mandated by Congress more than 50 years ago. The U.S. 

Army Corps of Engineers manages flows in the Missouri River 

through the operation of six large reservoirs located on the main 

stem of the river. 

Approximately half of Missourians get their drinking water from 

the Missouri River. The system is designed to provide downstream 

flows to support an eight-month navigation season on the Missouri 

River which runs from April 1 to December 1. Under normal conditions, flows are released from Gavin’s Point Dam in South Dakota 

to support a nine-foot-deep navigation channel. 

The benefits of supporting navigation go far beyond the navigation industry itself. If flows are adequate to support navigation, 

then all other downstream users have ample water to meet their 

13

needs. Downstream interests have built infrastructure and made 

business decisions based on the system providing reliable flows 

throughout the year, especially during periods of water shortages. 

The Missouri River system is designed to hold water in reserve for 

release during droughts. 

Under the authority of the Endangered Species Act, the U.S. 

Fish and Wildlife Service has mandated that releases from Gavin’s 

Point Dam be limited to 25,000 cubic feet per second from midJune until the end of August each year starting in 2004. This will 

not support navigation on the Missouri River. 

To better understand the effect of this decision, one needs to understand how the navigators operate on the Missouri River. When 

the navigation season opens in April, loaded barges move up the 

river to their destination. This begins a cycle of loaded barges moving up and down the river until they move off the river in late November or December. Only a few specialized barges, such as asphalt carriers, move empty on the river. Most carry one load up the 

river, off-load, and pick up a new load for the return trip. 

Few businesses could survive economically if allowed to only 

work eight months of the year, which is what we have now on the 

Missouri River. Now the Fish and Wildlife Service is asking the 

barge industry to pull off the river for an additional two months 

each year. Adding to the burden, these two months fall in the middle of the industry’s busiest season and impact our ability to move 

our agricultural products, which is probably the most important 

navigational element on the river. 

If the Fish and Wildlife Service is allowed to mandate flows 

lower than what is needed to reliably operate on the Missouri 

River, then one of the Congressionally-authorized purposes, navigation, has been eliminated from the Missouri River. No question 

about that. 

As I said earlier, I’m not a scientist. I know transportation. I am 

the Chief Engineer of the Missouri Department of Transportation. 

It is my job to give Missourians the best transportation system I 

can. 

I know that transportation has an enormous impact on our 

state’s economy; whether it’s airborne or waterborne transportation, roadway or rail, it affects every Missourian’s quality of life 

every day. Here are what I see as the economic impacts of reduced 

water flows on our river. 

Higher transportation costs will be passed on to consumers. Inland waterway transportation provides competitive shipping rates, 

keeping truck and rail costs low. 

Interruptions in the navigation during peak season in 2002 and 

2003 caused drastic reduction in tonnage moved by barge. Two 

major shippers, MEMCO Barge and Blaske, have already decided 

not to ship on the Missouri River in 2004. They did not feel confident they could predict transportation costs. 

Facilities are no longer investing in capital improvements at 

docks but instead are looking at adding investments to facilitate 

the use of other modes. The long-range effect of this shift will be 

less competitive shipping rates as rail and trucking companies no 

longer have to compete with the more economical barge transport. 

14

What happens on the Missouri River affects the Mississippi 

River. Continued low flows on the Missouri River also affect the 

Mississippi, the nation’s major inland navigational river. At times 

the Missouri River supplies as much as 60 percent of the Mississippi River flow. 

The past two years have shown us how lowering the Missouri affects the Mississippi. The Mississippi River was closed just south 

of St. Louis for a short time because it was too low for safe navigation. The Mississippi River was closed. The bottleneck effect from 

the confluence of the Missouri River to the confluence of the Ohio 

River makes this an issue for every state that ships on the Mississippi. It costs the industry approximately $8,000 per day for 

each barge that is waiting for river levels to rise. 

Every river barge that cannot travel on the Missouri or Mississippi Rivers results in 15 more rail cars on a rail system that 

is already straining at or near capacity. Every river barge that cannot travel on our great river results in 60 trucks on our aging highway system. That’s one barge. On the Mississippi River, the average tow moves approximately 15 barges. The loss of one tow with 

its barges would put 225 rail cars or 900 trucks on our already 

strained alternate systems. Multiply that by the number of river 

trips, and you start getting a sense of the magnitude of the problem. 

Here’s another example from right here in St. Joseph. Recently 

the state invested almost a million dollars in a dock here, with a 

local match of $350,000 from the local community. The dock was 

completed in June 2002. Without doubt, the St. Joe port has the 

newest, and with its additional infrastructure, one of the best docks 

in Missouri. In its first year, 2002, almost 17,000 tons moved 

across the dock. During this past navigational season, the port operator had scheduled five barges to off-load at the terminal. The 

first arrived late due to the low flows that opened the season. The 

other four were never delivered. There was virtually no navigation 

north of Kansas City in 2003. Very little even made it to Kansas 

City. In 2003 that one barge, with its load of 1,165 tons, was the 

only freight moved across the St. Joe dock. 

I know transportation. I know we need our waterborne system to 

become more robust. We cannot take advantage of our state’s position and natural assets if our waterways cannot be used. I thank 

you for letting me provide this point of view. 

[Mr. Keith’s statement may be found in the appendix] 

Chairman GRAVES. Thank you. We will now have questions, and 

I’ll start out, and just kind of background just a little bit to give 

you a sense of what my district or how this river impacts my district, my district starts along the river at the Iowa, Missouri and 

Nebraska borders, that area up there, and it comes down through 

St. Joe, down through Kansas City, then cuts across the state, still 

on the southern side of my district, all the way over to the bridge 

that’s going into Columbia. That’s the end of my district, a tremendous amount of riverfront area. Anything happens, I hear from 

small businesses. This affects my district and districts that are rising and falling. 

You know, any time that the river is messed with, we hear from 

small businesses, we hear a lot from water treatment facilities. St. 

15

Joe has a huge impact whenever the river gets too low. Cooling for 

power plants is a huge issue. We need that water for cooling; and 

then one of the issues when the river is running too high is what’s 

being worried about is the artificial spring rise affects interior 

drainage, and we’ve heard very little so far about interior drainage. 

I think we may hear a little bit later. But when the river runs 

high, everything backs up all the way down the river for miles inland, and you can’t take your water back off. It backs up in your 

fields, it floods, and many people think that the bottomlands are 

flooded just along the Missouri River. It is every other tributary 

along the river that water backs up into. 

I have personal experience with that working in plantings of 

fields, and my question is, and I guess it is probably more directed 

to Mr. Hall—and maybe Ms. Hargrave would like to comment—but 

is that taken into account whenever we look at something like this, 

when you put out the biological changes, you effectively change the 

management of the river. You force the Corps of Engineers to come 

up with a new Master Manual. I mean, is that taken into account 

or is it just about that species? Or is it just about that wildlife that 

is impacted? Does anyone take a look at the economic impact that 

this will have on individuals in the community? 

Mr. HALL. Well, I think that there’s probably a two-part answer 

to that. The first answer is that the Endangered Species Act 

doesn’t give us a whole lot of latitude to do an economic analysis. 

It is strictly designed in the biology. So the first question we have 

to answer is whether or not a species, an action taken will jeopardize or not jeopardize a species, and once we get to that point, 

then we do everything we possibly can to look at what kinds of impact might occur as a result of what we’re saying. But we can 

never cross the line to where we couldn’t support the science there, 

the biological science that goes along with it. 

In this particular case, in the spring rise that you’re talking 

about, we did understand and accept the science is not clear on 

what’s needed for the species. We know that in big river systems 

throughout the world that the species adapt to cues for the reproductive cycle, but we don’t know in the Missouri River—I don’t 

think anyone does—exactly what level that is; and for that reason 

we tried to build in some flexibility, and the reasonable prudent alternative for the pallid sturgeon for the spring rise says that the 

Corps should undertake a feasibility study over the next two years 

to try and determine how to meet the objectives, the biological objectives that we would all like to see done for the species and at 

the same time take into account the different kinds of impacts that 

might take place and try to address those in the process. And the 

biological opinion says that if that doesn’t happen, then in two 

years, in March of 2006, then we have put in what we think is a 

starting point for analysis for what flow should be, and that is a 

16,000 cubic feet per second rise above that spring condition and 

flow that would come down at roughly 40,000 cubic feet per second. 

But I do want to emphasize that we neither have the expertise 

nor, frankly, the legal authority to do an economic analysis. We are 

directed to do a biological analysis, but we did try and interject as 

much understanding of the ramifications to other users of the river 

as possible. But our expertise is in the biological realm, and we’ve 

16

tried to build in some ability for the Corps who has much better 

expertise in that area to look at that over the next two years. 

Ms. HARGRAVE. From the Corps’ perspective, our review, of 

course, is much broader than that. In addition to the environmental and biological considerations, we also have to take into account the economic impacts as well, and we’ve tried to analyze 

those impacts through the Natural Environmental Policy Act process in our environmental impact statement. So we do look broader. 

Chairman GRAVES. The thing that bothers me about the statement that was made with taking a look again, you know, doing a 

feasibility study having these effects concerns me a great deal, and 

that’s essentially what you’re saying, isn’t it? 

Mr. HALL. No, for the spring rise there is no required spring rise 

until 2006. That’s the two-year. The summer flow is a different 

question about habitat. But for the spring rise and the backup 

flooding that you’re talking about, there is a two-year waiting period for the Corps to be able to look at things and come up with 

how working with stakeholders and others along the river can 

come up with a proposal to accomplish the same thing. So the 

spring rise doesn’t start immediately. 

Chairman GRAVES. Would you say the same thing about the low 

flow, when it is to start essentially? 

Mr. HALL. Okay. The summer flow has a different rationale behind it. The summer habitat flow, first of all—Maybe what would 

be good here, if I could, is just highlight what I consider to be the 

four major differences between the 2000 opinion and the 2003 opinion. 

The 2000 biological opinion required for the spring rise only to 

happen one out of every three years but required a 20,000 cubic 

feet per second increase over the navigation flows which would put 

it 50 to 54,000 somewhere. With this biological opinion we do recommend that it happens every year but at a lower level, after the 

two-year period you look at for the spring and the study is done, 

but we only recommended a 16,000 increase over the March condition inflows which is the flows that they put in the condition, the 

next step after the winter flows that the Corps is going to do anyway to buffer the man-made-prepared channels and the habitat out 

there. 

The second difference is the summer flows. In 2000 the biological 

opinion found jeopardy for three species and the flows were predominantly summer flows, were predominantly for the birds. The 

Corps came to us—there still is shallow habitat for the fish, but the 

Corps proposed to do that mechanically, and we could—and we said 

okay, you can do that mechanically, and the summer flows were 

then 90 plus stage. They had to basically wait until the nesting 

birds were finished before they could raise them, and the 2000 

opinion was at 21,000 cubic feet per second. 

Since we were able to only have focus on the fish because there 

was no jeopardy for the birds or the jeopardy was continued to be 

avoided, then we looked at the information and felt that the flows 

could accomplish the shallow water habitat, and shallow water 

habitat did agree to definition, is habitat that is five feet or less 

in depth and has two and a half cubic feet per second of flow rates. 

17

So you are basically talking about the side channel types of habitat, and because of the way the river has been modified and constrained movement of water for other purposes one would expect to 

happen on a project, a lot of the historic shelter habitat has been 

made unavailable, and the Corps proposed to create physically the 

1,200 acres that are at Sioux City between Sioux City, and the 

Platte, and we agreed that that should be done. 

But there’s a really dire circumstance here right now for the species.We have only a few hundred fish left in the river that are what 

we call heritage fish, the fish that are—that have spawned in the 

past and have been there. The scientists that look at this fish tell 

us that they will become reproductively senile or die within the 

next ten to 12, 14 years. I think the prediction was by 2018, they 

would be gone. These are long-lived fish but they’re reaching that 

point, and when you have a low number of fish and then you also 

have a spawning frequency that is only every three to five years 

for a female, then the possibilities of hanging on to those fish get 

less and less. 

So the shallow water habitat is very important on an annual 

basis so that every chance for the young to live—and they are not 

living. We have every scientific evidence that the larvae, the document spawning, we found the larval fish at the earliest stages but 

we don’t find any kind of recruitment; we don’t find them to be living or to be recruiting in the population, and the science leaves us 

to believe that’s because they don’t have a nursery habitat. 

The Missouri River below Gavin’s Point is very much like an 

hourglass from a biological perspective. When you get below Gavin’s Point, there’s some pretty good habitat for the fish. So if you 

look at the hourglass coming down, there’s pretty good habitat 

there, nursery habitat, good kinds of quality. But then you get 

down to Sioux City, and between Sioux City and the mouth of the 

Platte, it constricts and becomes more of a channel process, and 

then after the mouth of the Platte, it opens up again and there’s 

some pretty good habitat down below there. 

But the science leads us to believe that any fish that are being 

spawned between Gavin’s Point and the mouth—and excuse me, 

Sioux City, that the flows coming out are sort of blowing them on 

through. 

You have to understand a larval fish is probably three to five, 

seven millimeters in length, has no swimming ability, it’s basically 

drifting. Nature has allowed it to impasse. It’s evolved to where the 

eggs are laid, the larvae are then drifted over into these nursery 

habitats, which one would expect to happen, and those are not 

there now. 

So the reason for the shallow water habitat to continue in the 

summer at 25,000—and it’s not through the summer, they run it 

down for seven days to July 1st, 30 days at 25,000, and then up 

for seven to get back to the normal level, whatever the Corps wants 

to operate it at—is to try and give those fish a chance where the 

shallow water habitat is today. 

Now, the opinion says that if you create the new shallow water 

habitat—and the Corps is working on that—then that’s what we’re 

after. The flow is not the big issue in the summer. We’re after shallow water habitat. We’re after what’s good for the fish. So when the 

18

habitat is created and if they need higher flows to reach that habitat, then that’s fine, and I think that’s what the Corps is working 

toward. 

But we are, frankly, in a pretty serious situation with the fish, 

and I’ll reiterate the lower numbers of adults, the spawning frequency is three to five years, and we have not been able to document any kind of recruitment, and the literature simply leads us 

to believe that there have not been recruitments. 

Those are two of the four.The third one is that there’s a strong 

stakeholder process involved in the Corps’ proposal that we really 

like. They proposed a Missouri River recovery position Committee, 

and we think that’s the way things should work, to get all of the 

interests along the river to sit down at a table together to talk 

about how to approach this particular issue where everyone can be 

heard and everyone can be listened to. It’s just as important that 

people be listened to as someone being able to speak, and so we 

think that this is a real important process that the Corps has proposed to be part of this, and the difference between the 2000 and 

2003 period is the administration’s commitment. 

In 2000 there was basically no commitment from the Administration to move forward and try to solve this problem. This Administration—and I’m first, let me say I’m a career employee, I’m not a 

political appointee; I’ll just say this as a fact—This Administration 

has throughout 2004 appropriations and throughout the President’s 

2005 budget request—if you add those two together, is trying to 

bring a hundred million dollars into this basin to try and help work 

with this problem to fix it and have people have the resources to 

be able to come up with solutions. 

And I think those are the four big differences, and I hope I 

haven’t gone too long in answering your question about the shallow 

water habitat or put too much in there, but that’s—we just feel like 

if we give every opportunity to these fish, since we’re not seeing 

any recruitment, is a very serious issue. 

Chairman GRAVES. I don’t want to dominate all the questions. 

I’m going to turn to Representative Blunt, but I will say I have a 

real problem with the statement that you—one of the statements 

you made when you said we’re after what’s good for the fish. That 

red flags super quick to me, and I know it’s not necessarily you, 

it’s the philosophy with the Fish and Wildlife Service, but that did 

bother me a great deal 

Mr. HALL. I guess I’m not sure that—what I was trying to say 

is that the law requires us to take an approach—we can work with 

the public, and we do, and we want to—just as Mr. Gibbons commented a while ago, we have instituted private lands programs because we agree the plight of the landowners is the source for real 

implementation of the Endangered Species Act. 

But what I was trying to say and possibly didn’t say it very well 

is that the law only gives us certain latitudes, but the first test of 

anything we do, we must pass, is that the species is—that the action will not lead to jeopardy of the species. We don’t have any 

choice there. That’s the first question that we have to answer, and 

anything that we do after that has to always stay above that bar, 

and we don’t have any legal authority to do anything different or 

we would be in violation of the law itself. 

19

Chairman GRAVES. Representative? 

Mr. BLUNT. I’ll try to ask a brief question and maybe get brief 

answers, not that your answer, Mr. Hall, didn’t require a long time, 

but it certainly took a long time. 

One, did I understand you right, Mr. Hall, that you’re satisfied 

with the Corps’ proposal that affects the two birds? 

Mr. HALL. Yes, sir. 

Mr. BLUNT. So literally this gets down to what are we going to 

do about the pallid sturgeon? 

Mr. HALL. Yes, sir. 

Mr. BLUNT. That is your main concern now based on what the 

Corps would like to do. You have the challenge of navigation and 

flood control and you’re concerned that this bill doesn’t adequately 

deal with the pallid sturgeon. 

Mr. HALL. Yes, sir. 

Mr. BLUNT. Are you also saying that you don’t have any authority to consider, once you consider that a species is in danger of extinction, you don’t have any authority to consider anything else 

when you come up with your RAP in terms of economic impact or 

the drinking water problems, the power problems, the problems 

Mr. Wells talked about? 

Mr. HALL. We don’t have the authority under the ESA to have 

those supersede the biological ramifications. 

Mr. BLUNT. I’m not blaming you for that, either. Part of what 

we’re talking about here and part of what Mr. Gibbons and his 

Committee have been talking about for some time—I know Mr. 

Graves is supporting that, as I am—is it’s time to look at the Endangered Species Act and the theory if you don’t like the Act, all 

you’ve got to do is carry it out. 

What you’re telling us is what lead you to that decision is the 

species is endangered. It wouldn’t really matter if Mike Wells says 

look, if you want to save the species and eliminate the drinking 

water for the people in Kansas City, Jefferson City and St. Louis, 

you can’t consider that under the current law. 

Mr. HALL. The Fish and Wildlife Service would have to say, 

would have to come up with whatever answer. The Corps could 

raise that and ask the Endangered Species Subcommittee to look 

at that—otherwise known as the God Squad—but we don’t have an 

answer for that, no, sir. 

Mr. BLUNT. What authority does the God Squad have? 

Mr. HALL. Under the Endangered Species Act, we have a———

. 

Mr. BLUNT. Frankly, I never thought I’d be able to ask that question. 

Mr. HALL. Under the Endangered Species Act, when a jeopardy 

opinion is found to which there is no reasonable and prudent alternative—and that might be one, when you have drinking water shut 

off, you know, the health and human safety was involved—the 

agency taking the action has the ability to petition the Secretary 

of the Interior to form what is known under the law as a danger 

Committee. It’s historically been called a God Squad because you 

have to decide to let a species go extinct. 

The members of the Cabinet that come together, the Secretary 

of the Interior oversees the Committee, and it’s only happened a 

20

couple of times, two or three times in history. But Mr. Baker, Senator Baker put in the law after the snail order issue down in Kansas City, but to come back to answering for me, the Fish and Wildlife Service does not have that kind of authority under the law, 

you’re right. 

Mr. BLUNT. Is the Missouri River today, is this the only habitat 

for the pallid sturgeon? 

Mr. HALL. The pallid sturgeon, actually the range is throughout 

Missouri, through Mississippi and into the Chapel River Basin. 

Mr. BLUNT. Do they have problems in all of those areas or only 

in Missouri? 

Mr. HALL. There are different kinds of problems in each area. In 

Louisiana we have some problems with hibernization. Other sturgeon species in the Mississippi, we have a problem with a mixture 

of that, but we don’t have a lot of research, other than to say it 

is being looked at, as to why that’s happening. Most research has 

been done on the Missouri because of the impact that is raised over 

the navigation and the other issues here. 

Mr. BLUNT. Are you doing anything in the Mississippi or Louisiana areas to evaluate viability of the sturgeon? 

Mr. HALL. I think research is being done on what’s needed. 

Mr. BLUNT. You don’t have any current action you’re working on? 

Mr. HALL. I’m not aware of any. 

Mr. BLUNT. The only place to assure the pallid sturgeon survive, 

it’s only on the Missouri? So we’re down to one fish in one location? 

Mr. HALL. Yes, sir, we’re down to the Missouri. 

Mr. BLUNT. That’s what I thought. 

Ms. Hargrave, do you have the 12,000 or 1,200 acres, 1,200 acres 

that you’re suggesting would be needed to create a future potential 

spawning area? Does the Corps own that land? Does it control that 

land? Is it preparing to buy that land? Tell me just a little bit 

about that. 

Ms. HARGRAVE. The Corps has a very aggressive habitat program. We do it through willing sellers. We don’t use condemnation. 

What we are proposing to the Fish and Wildlife Service now is that 

the Corps be allowed to look beyond that Sioux City to Omaha 

reach. We believe that there’s scientific information available, including long-term studies which would justify looking at the entire 

region from Sioux City to the mouth of the Osage River. The Corps 

could get 1,200 acres in that reach. 

We’ve also committed to the Fish and Wildlife Service that we 

will focus on the Sioux City to Omaha reach. We probably can’t get 

1,200 this year, but by 2005, funding available, we would have 

1,200 acres in place in the Sioux City to Omaha reach. 

Mr. BLUNT. But you don’t have it yet, but you think you could 

buy it? 

Ms. HARGRAVE. You’ve got it. 

Mr. BLUNT. Mr. Keith, you mentioned—you and I both will stipulate that we’re not experts on these environmental issues—but you 

are an expert on transportation. Is it your sense that if you take 

the barge traffic off the river for two years, what are the odds of 

you getting the barge traffic back, you know, assuming this twoyear period, if you think of something that allows it to continue, 

to have the navigation, or if you decide that that’s not the problem, 

21

what are the odds ofthe barge traffic coming back and what’s the 

impact to the various barge facilities and ports during the two 

years of inactivity; what’s the impact there? 

Mr. KEITH. Well, I think it’s two things. Two years maybe you 

can get barge traffic back because you still have the investment in 

facilities and they won’t have determined whether or not they are 

usable or not, but this is absolutely dependent on having an eightmonth navigation season that they can come back, they can come 

back to. Eight months on the Missouri River, quite frankly, is not 

the best navigation the way it’s been managed in the past, so the 

additional low flows just simply make it economically infeasible to 

do transportation on it. 

The bigger issue that it has to do with is whether we’re going 

to maintain the navigation channel for eight months. If someone 

could say that’s absolutely going to happen in two years from now, 

I think economically transportation would respond to that and use 

it, but if it stays uncertain and they go away and that certainty 

is not held up, they won’t come back. 

Mr. BLUNT. I would assume there’s some time period, a relatively 

prudent period where they don’t come back. 

Mr. KEITH. Yes. 

Mr. BLUNT. Mr. Wells, I drank the Missouri River water at Jefferson City, my daughter drank it for the same eight years, it 

didn’t seem to hurt me very much. But what was the financial impact or the other impact when you had just the low water in 2002 

and three in the drinking water system? 

Mr. WELLS. Just an example, they had to put an auxiliary pump 

to go out in the river to get more water. The river flow was not 

much lower than what the flows were during some of the winter 

months but we have less demand in the winter, obviously, on the 

water so they had to put an additional pump in, and then you’ve 

got organic materials and stuff that causes additional treatment 

costs to be placed. We’ve had some low water this winter. There’s 

several different reasons. Had a guy call me the other day, lived 

in Jefferson City. Called me and said the river is too low out here, 

we’ve got to get it up to a certain level, and I can taste it, tastes 

bad. Just the organic material that they have———. 

Mr. BLUNT.—involved. 

Mr. WELLS. Yeah. They’re pulling out, and the reason is, I would 

say, pollution, pollution, pollution. We don’t say that at DNR, but 

that’s part of it. If you have less flow, you’ve got contaminants, 

stuff is more concentrated. We checked and Kansas City and St. 

Louis had an additional increased cost in pumping. Obviously when 

the river is low, you’ve got to raise more water for the additional 

pumping facilities, and the treatment to remove the taste and odor 

cost is in addition. 

Mr. BLUNT. I’m like my two colleagues, I like to be outdoors, I 

love the outdoors. I want to do our best to take care of it. I’ve got 

a grandson in Jefferson City that uses that water, one in Kansas 

City that uses that water, and the truth is they’re both a lot more 

important to me than the pallid sturgeon. 

At the very least we ought to give Mr. Hall and his group the 

authority to consider those factors as they look at other things. 

Thank you. 

22

Mr. GIBBONS. Thank you very much, Mr. Chairman. 

Let me ask of Ms. Hargrave, the 1,200-acre shallow water habitat area you’re talking about, is that a single body of land that 

you’re looking at or is it a separate, can it be in smaller groups of 

areas along the corridor? 

Ms. HARGRAVE. Right, because it’s acquired from willing sellers, 

you know, obviously that’s what it is. It’s more of a patchwork 

wherever we can get the land and develop it along the river. 

Mr. GIBBONS. So instead of a large shallow water basin area, 

you’re not talking about 1,200 collective acres, you’re talking 

about——

Ms. HARGRAVE. Exactly. 

Mr. GIBBONS[CONTINUING]Approximately 1,200 acres spread out 

over this whole region. 

Ms. HARGRAVE. Yes. 

Mr. GIBBONS. Do you believe that that will answer the question 

about habitat needed to allow for recovery of the pallid sturgeon? 

Ms. HARGRAVE. Just maybe a little background here, and I won’t 

go too long. The habitat gain, the shallow water habitat gain from 

going from minimum service to navigation, which is what the 

Corps would like to revise it to because we are in a drought, to 

25,000 cfs, which is what is in the biological opinion, is about 30 

acres of habitat. 

The 1,200 acres comes from an analysis that the Corps did in our 

biological assessment in November where we looked at the whole 

reach of the river from Sioux City, Iowa, to the mouth of the Osage 

River and estimated there were 1,200 acres lost due to our operation of the system. So what we are proposing and for this year, 

is to get 1,200 acres in that whole reach, but we also will focus on 

that shorter reach from Sioux City to Omaha and get 1,200 acres 

there by next year. 

Mr. GIBBONS. Mr. Hall, what’s the Fish and Wildlife’s opinion of 

this 1,200 acres? Are you ready to approve it? 

Mr. HALL. We’re ready to—we’re on-going working with the 

Corps to answer the kinds of questions that Ms. Hargrave has just 

brought up about looking at the entire reach of the river based on 

the level of drift. I mean, those are the situations that we’re talking 

about right now. 

Mr. GIBBONS. So what I hear you say is the people living in 

this—who are alive in this audience today may not be see the end 

result of this any time soon? 

Mr. HALL. I don’t know the answer to that. 

Mr. GIBBONS. Let me ask, when you talk about scientists and the 

study of fish and you give reference to these scientists, are these 

Fish and Wildlife scientists that are giving you this information? 

Mr. HALL. They are—they are a conglomerate of scientists, starting with the National Academy of Science, that have done an independent review. They have literature citations from up and down. 

Frankly, the Fish and Wildlife Service scientists are probably the 

smallest number or the most least representative. 

Mr. GIBBONS. You are relying principally on outside scientific efforts to formulate your opinions? 

Mr. HALL. Yes, sir. 

23

Mr. GIBBONS. Is all of this science that you’re relying on peer review? 

Mr. HALL. Yes, sir. 

Mr. GIBBONS. All right. Now, does the high temperature reflect 

the recovery of the sturgeon? The water temperature? 

Mr. HALL. High temperature can end the early life stages of the 

fish. 

Mr. GIBBONS. So when the water level is low, the high temperature part of the time is not conducive to the recovery of the endangered species? 

Mr. HALL. It depends on the stage of their life development at 

that time. Obviously they’re developing, and this habitat is five feet 

or less in depth. That’s how they have historically developed. 

Mr. GIBBONS. What about total dissolved solids? 

Mr. HALL. Total dissolved solids and turbidity are both questions 

that may be positive or may be negative for the fish, the Big 

Muddy, as the river has historically been known, in that the pallid 

sturgeon in particular is not a site feeder or a site developer. It is 

developed in turbid environments. We are not ready to say it has 

to have it, but we certainly have questions about that. 

Mr. GIBBONS. What is the Fish and Wildlife Service doing for artificially increasing the numbers here besides changing the water 

level? What about artificial spawning? What about taking these 

fish and putting them and growing them and raising them and putting them back in the river? What are you doing there? 

Mr. HALL. Over the past, starting in 1994, we’ve devoted some 

of our hatchery work to doing that, and over a ten-year period we 

have stocked 40,000 pallid sturgeon, and they are the hope, frankly, for the future, but until they reach—and I’ll point out again, 

they’re long-lived species; the males don’t even become sexually 

mature until seven to ten years, the females ten to 15 years. So we 

have not even reached the point yet—This year will be the first 

time we will even see that first few fish that we stocked, to find 

out if they will respond and spawn and become members of the 

wild, and that’s a question that we’re hopeful about but it’s going 

to take a while to know that. 

Mr. GIBBONS. Mr. Wells, briefly, do flow rates change the carrying capacity for the river, whether it’s circus barge, et cetera? I 

know Mr. Keith talked about a nine-foot channel. Is that the depth 

that you’re talking about or is that the width? 

Mr. KEITH. Nine foot is the depth. 

Mr. GIBBONS. The depth. So the minimum depth amount to float 

a barge, roughly? 

Mr. WELLS. Actually you can go lower. The nine foot is the authorized channel. It’s nine foot deep, 300 foot wide, I believe is an 

authorized channel; therefore what we call full-service navigation, 

and navigation pretty well needs that to make it an economically 

viable transportation mode or avenue. When we’re in a drought 

condition like we are now, flows are reduced in the river down to 

an eight-foot channel which produces about a seven-and-a-half-foot 

draft. If you heard me say last year we were actually a foot and 

a half below that, so we have about a six-foot channel in certain 

parts of the river around Kansas City. So that’s obviously not that 

full. You can partially load barges but barges with reduced 

24

amounts of volume have difficulty to even operate at all. We had 

a couple of groundings, we had a couple of barges that were still 

trying to operate at the low flows. So it was very dangerous as 

well. 

Mr. GIBBONS. The reason I ask, because as I say, I come from 

the state of Nevada, and the rivers out there would probably make 

a wet sponge. We don’t get anywhere near what Missouri does, but 

my concern is, of course, when they also talk about carrying capacity—in other words, the water is so bad you get solids, et cetera, 

et cetera—and when you lower the capacity down so it puts all the 

water into narrower or a smaller channel, upstream it is higher; 

it’s carried downstream which fills in your channel throughout that 

period of time. 

What efforts or cost does a lower flow rate have on the carrying 

capacity of the river, simply your costs to keep the channel full? 

Mr. WELLS. I’m not sure I can answer that from the standpoint—

the one thing that we did recognize the summer before that, as I 

mentioned in my testimony where I said we are in a similar state 

on the river as far as temperature. When you have the lower flows, 

you don’t have the same capacity. You have several power plants 

that use this water for cooling, and so what we experienced in the 

lower part of the river is we had eight days that we exceeded—the 

state water quality standards for temperature in the river, which 

exceeded 90 degrees. That’s the state water quality standard. We 

know when the river water is above 90 degrees, we’re having some 

environmental problems there. 

So, in fact, we actually issued a notice of violation to the Corps 

of Engineers from our department in 2002 for violating the state’s 

water policy standards for allowing the river to be that low, because we have the infrastructure already on the river and we had 

some cooling—some power plants that cut back their cooling water, 

lost their efficiency when the river was that low. So that’s a real 

concern of ours when we get that low that we’ve got that problem. 

Mr. GIBBONS. Mr. Chairman, I know you’ve got another panel 

and a time crunch, so I’ll cut my questions short. 

Chairman GRAVES. Thank you, Mr. Gibbons. Our time is running 

a little short, unfortunately. I wish we had all day to ask questions. 

I do have one more quickly which I don’t completely understand, 

but it seems that the Corps of Engineers and the Fish and Wildlife 

Service are using different sciences and coming to different conclusions and you both have to comply with the law. Am I wrong in 

thinking that if—go ahead. 

Ms. HARGRAVE. The Corps has done our very best engineering 

and biological analysis of this issue, and in our biological assessment that we gave to the Service in November, we put forth what 

we thought was a very sound proposal for addressing the endangered species, you know, on the Missouri River. Obviously—and 

Dale can respond to this—the Service came back and didn’t agree 

with or think that the Corps’ actions relative to the pallid sturgeon 

were enough. 

Mr. HALL. And I think that that’s what consultation is all about 

is if you use consultation, and we had lots of very positive discussions. I can’t say enough about how good the relationship with the 

Corps and the Fish and Wildlife Service professional relationship 

25

is, our staffs with each other. But then again, there can be different opinions as to what the science says and what it doesn’t say, 

but we don’t get to dodge, we have to make a decision and give our 

opinion. 

Chairman GRAVES. Thank you all. I appreciate it. We will briefly 

take just a minute and seat the second panel, and I appreciate you 

being here. 

Chairman GRAVES. We’re running just a little bit behind and we 

will just go ahead and get started. I know we have a couple witnesses on the second panel who are going to have to leave due to 

other engagements, but I appreciate everybody being here, and 

we’re going to start right off with Mr. Blake Hurst, a farmer from 

northwest Missouri who also serves as the Vice President of the 

Missouri Farm Bureau Federation, who is going to be testifying. 

Thanks, Mr. Hurst. 

STATEMENT OF BLAKE HURST, FARMER, VICE PRESIDENT OF 

FARM BUREAU 

Mr. HURST. Mr. Chairman, thank you for conducting this morning’s hearing. Your interest and leadership on the issue of endangered species reform is much appreciated. For too long Congress 

has ignored flaws in the Act and been unwilling to stand up to political threats from environmental organizations. We can only hope 

that a majority of members of Congress will soon come to understand the Act’s deficiencies and support much-needed reform. 

To put it bluntly, the ESA is broken and in need of major repair. 

The goal of the Act remains important:The preservation of endangered species. However, it has evolved into the weapon of choice for 

those who believe landowners cannot manage without greater regulation or a court order 

Today the federal biologists have the power to impose prescriptive management plans and extort money from Congress without 

regard to those who actually own or make their living on the land. 

While we believe it is possible to focus on increasing the population 

of threatened and endangered species without prescriptive management edicts and the associated economic impacts, this view is not 

shared by the U.S. Fish and Wildlife Service. 

In Missouri we have firsthand experience with species listed as 

threatened and endangered by the federal government. In recent 

years we have dealt with the Topeka shiner, the Indiana bat, the 

piping plover, the interior least tern, and the pallid sturgeon. In 

each case, there was no attempt to work with landowners prior to 

listing. In the case of the Indiana bat, federal permits to remove 

a log jam were delayed, not because the species populated the area, 

but rather because the bat might someday decide to come into the 

area. 

Management of the Missouri River is a good example of how the 

Endangered Species Act can be abused. What started with a 

drought in the upper basin has evolved into a 14-year water war 

encompassing state agencies, federal courtrooms, Congress and 

even the White House. While you are very familiar with this issue, 

suffice it to say, the Missouri Farm Bureau and many other organizations are profoundly disappointed with the biological opinion 

issued recently by the U.S. Fish and Wildlife Service. If landownerVerDate 0ct 09 2002 17:32 Aug 16, 2004 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 G:\HEARINGS\93892.TXT MIKEA
26

ship means control over use of the land, it may very well be that 

the largest landowner in the state of Missouri is the pallid sturgeon. Perhaps we should tell the county collector so the property 

taxes can be sent to the right place. 

The proposed Master Manual is scheduled to be released later 

this week, and it appears the Missouri landowners will get to experience aspring pulse, which could also be called a prescribed flood; 

low summer flows, which exacerbate reliability problems for navigators; adaptive management, which is a license to experiment on 

private property; and countless acres of mitigation, otherwise 

known as land acquisition. 

Make no mistake, these measures will come at the expense 

offarmers who will be subjected to greater risk of flooding, lower 

prices for their grain and higher fertilizer costs;municipalities that 

will be forced to extend intakes to provide public drinking water; 

utilities that rely on flows to cool water used for power generation; 

the environment as shipments are moved off the river to truck and 

rail; and Missouri River flows which are at times dependent upon 

flows from the Missouri River. 

In the end consumers will likely pay more for water and electricity. Farmers will pay more for fertilizer and receive less for 

their grain. And everybody will be subjected to a greater risk of 

flooding, and public agencies will use taxpayer dollars to add to 

their already huge inventory of public property. 

The U.S. Fish and Wildlife Service is using the Endangered Species Act to prescribe these measures for the pallid sturgeon. ‘‘adaptive management’’ is the term used to describe the process under 

which the Missouri River will now be managed. ‘‘experiment’’ is a 

fitting definition of adaptive management as biologists are given 

carte blanche authority to use private land along the Missouri 

River as a laboratory. At this point there is no way of knowing if 

any of these prescriptive measures will work. The prevailing attitude is, ‘‘Let’s just give it a try, and if it doesn’t work, we will try 

something else.’’

Mr. Chairman, there are many ways in which the Endangered 

Species Act can be improved, and I offer the following suggestions: 

The U.S. Fish and Wildlife Service should concentrate on working with landowners prior to a proposed listing. Missouri’s 1/10th 

cent soils and park tax has been successful because of its focus on 

voluntary, incentive-based conservation practices. Working with 

landowners when a species is in decline provides opportunities for 

actions that could prevent the need for a listing. 

The economic impacts associated with a listing must be taken 

into account prior to the designation of critical habitat. It is very 

important that all parties understand the economic impacts associated with both a listing and subsequent biological opinion. 

There must be increased transparency throughout the jeopardy 

process. Currently there is little public oversight or review of the 

management requirements issued by the U.S. Fish and Wildlife 

Service. 

There must be new checks that prevent species management by 

judicial mandate. While the ability to seek judicial review is important, shopping for a sympathetic judge must stop. 

27

The entire concept of adaptive management must be reviewed. 

Changes are warranted that prevent private lands from becoming 

laboratories subject to moving goalposts set by biologists devoid of 

common sense. 

Prescribed management practices must focus first on publiclyowned land. Expansion beyond land in public ownership should 

only occur when it is deemed essential to the preservation of a species. 

Land acquisition must be tied directly to the preservation of an 

endangered species. The Act must not be used as an excuse for acquiring large parcels of land to add already vast federal inventory. 

In conclusion, we commend your efforts to call attention to the 

ESA’s impact on farmers and small businesses. As a farmer yourself, you understand the effects that biological experiments will 

have on the people who farm and live along the Missouri. They’re 

your neighbors and they most certainly didn’t ask to be guinea pigs 

in an experiment designed a long ways from the floodplain, by a 

scientist whose salary is guaranteed no matter how that experiment turns out. 

Deficiencies in the Act must be addressed to create a climate 

under which landowners are viewed as the solution and not the 

problem. While cooperation is the key, litigation has become the 

tool of choice. Perhaps Senator Bond put it best when he said those 

involved need some adult supervision. 

Thank you, Mr. Chairman. 

[Mr. Hurst’s statement may be found in the appendix.] 

Chairman GRAVES. Mr. Hurst, do you have to leave? 

Mr. HURST. Yes. 

Chairman GRAVES. Does anybody have any questions for him before he leaves? 

Mr. BLUNT. Blake, thanks for being here today. I just want to 

say I think particularly the points you made in re-looking at this 

Act are valid points; the fact that this Act was written in a way 

that you can’t consider the economical impact, as you pointed out. 

Also, what are your concerns just—talk a little bit more about your 

concerns about excessive land acquisition. 

Mr. HURST. I think that sometimes the Endangered Species Act 

is sort of a wedge—at home we call it pry bar—that the federal 

government uses to expand their inventories of land, and I thought 

it was interesting that the first panel mentioned that well, the flow 

didn’t matter so much as long as we have enough land available. 

In other words, it’s obvious to me that there was a compromise 

available, and the only thing, the only reason for that compromise, 

I guess, is farmers along the river that kind of enjoy what they’re 

doing and want to keep doing it. 

Mr. BLUNT. What impact do you see with the levee system in 

what you refer to, I think appropriately, as a prescribed flood? 

Mr. HURST. Obviously there’s pressure on the levees when the 

water is high, and again, the points made earlier this morning 

about a ten-day trip from when the water is released into the river 

and when it gets to St. Louis is very apt. We can have tremendous 

floods come through Missouri in the spring that raises the river, 

and all the other associated process, and one of the other things 

that concern—you talk about levee systems—one of the other 

28

things that concerns us about federal acquisition of land along the 

bottom is that levee districts are a cooperative effort, and one of 

the largest owners in the levee district is the federal government, 

and their interests are exact opposite of the farmers involved in 

that levee district. Then you have some conflict that’s inevitable. 

Mr. BLUNT. I maybe should have asked this question of Ms. 

Hargrave, but I wonder if the idea of adding the 1,200 acres, if that 

involves any breaching of the current levee system and appropriate 

accommodation for that. Would you mind, Mr. Chairman, if she 

just answers that? 

Ms. HARGRAVE. Right, I don’t believe that we’re looking at any—

in terms of the federal levee system—that we are involving any impact to the federal levee system. I will say this: One of the things 

that we are looking at is widening the river and substantially setting back some levees. Now, that will absolutely have to be done 

in conjunction with the property owners and in conjunction with 

the levee districts. 

Mr. BLUNT. That was part of the entire plan to acquire the land. 

You wouldn’t assume there would be any burden on the neighboring landowners when you did that? 

Ms. HARGRAVE. Oh, I don’t think there’s any doubt that if we acquire a lot of land, there is going to be an impact on the tax base 

of those levee districts. I mean, there’s no question. 

Mr. GIBBONS. Mr. Hurst, you obviously seems to be a gentleman 

of impeccable common sense. Perhaps we need to have more like 

you in control of some of the decisions that are made with regard 

to these issues. 

My question is, and just I almost know the answer and I think 

the public knows the answer to this question, but do you think the 

farmer or rancher or property owner along the river would be better off in controlling the lands with the help of the government 

rather than giving it up to the government to control? 

Mr. HURST. Well, I’m kind of happy to live in my small community that’s dependent on farmers shopping there. We farm along 

the Missouri River or one of the tributaries, and I like my life and 

I’d like to maintain it; and what happens, it’s always—whenever 

government talks about adding more land to the inventory, it’s always from willing sellers. But folks who might not have been willing 20 years ago are now faced with a prescribed spring flood, 

they’re faced with higher prices for their fertilizer because navigation’s stopped, they are facing more danger if they happen to live 

in the bottom. So what might not have been a willing seller 20 

years ago may be today, and if these rules get more in favor of the 

wildlife and less in favor of the farmers, then these people who 

today are not willing to sell may be willing to sell and in 20 more 

years. So that willing sell always kind of gives me the willies sometimes. 

Mr. GIBBONS. If you want to see a real challenge when you talk 

about federally-owned, federally-managed property in the state, 

you should come to Nevada. Nevada has 89 percent of its geographical area that is owned and managed by the federal government. Running a state on 11 percent private property, you will understand the impact on any private property about the Endangered 

Species Act. Thank you for coming. 

29

Chairman GRAVES. I have one question, and I’m going to ask this 

of all the panel, too, but just real quick, how does it feel to have 

the needs or life of the pallid sturgeon fish over your own? 

Mr. HURST. Well, I mean, to somebody living where I do it seems 

crazy. That’s how I put it. It seems like a crazy thing to do, but 

I guess that’s where we are. 

Chairman GRAVES. Thank you. 

No. 2, Mr. DeShon, who is the Chairman of the St. Joe Regional 

Port Authority. I appreciate you being here and I look forward to 

your testimony. 

STATEMENT OF DICK DeSHON, CHAIRMAN, ST. JOSEPH 

REGIONAL PORT AUTHORITY 

Mr. DESHON. Mr. Chairman, I want to thank you for bringing 

this meeting to St. Joseph, Missouri, to discuss the economic impact the Endangered Species Act has had on small business in 

northwest Missouri and northeastern Kansas. I would like, for the 

benefit of our visitors today, to tell you that just a few hundred feet 

to the west on April 3rd, 1860, the first Pony Express rider was 

taken across on a ferry on his way to California to deliver mail. 

Now, every Pony Express rider that came back from California also 

got on that river to get back to St. Joseph. 

My point would be that the river was more reliable as a form of 

transportation in 1860 and 1861 than it is today, because we’re not 

ever sure whether we’re going to have water in that river or not. 

I’m chairman of the St. Joseph Regional Port Authority, and we 

were created in 1988 by the City of St. Joseph, Buchanan County, 

State of Missouri, to spur economic development, create jobs and 

share as a transportation advocate for manufacturing companies, 

farmers, and agribusiness. 

Now, I’m going to try to be very brief because we’re short of time, 

but we’ve taken the lead in the redevelopment of the stockyards industrial park. In the next couple years we’re going to have a new 

pork processing plant there that’s going to be state-of-the-art, corporate headquarters, thousands of new jobs. We also built a new 

road in the stockyards area, Bluff View Road. We are between Ag 

Processing and Aquila, and we’ve opened up barge facilities, as Mr. 

Keith told you, on the Missouri River in the spring of 2002. This 

barge facility was built at the intersection of Missouri Highway 36 

and Interstate 229 and on a main line of the Union Pacific Railroad. Now, if we had any water in the Missouri River, we could 

truly be a competitive transportation advocate. 

This area is a major producer of corn, soybeans and wheat, all 

of which could be shipped by barge. Now, we don’t always ship it 

by barge because we don’t always have a market. The market for 

grain is very competitive, but today, even if we could ship a thousand barges to China or anyplace in the world, we would not be 

able to ship it on the river. 

I’m sure you also know that we use thousands of tons of fertilizer 

in this area, all of which could be shipped into St. Joseph by barge. 

Now, what you may not know is that we have four companies in 

this area that use 150 to 2,000 tons of processed wire rod, all of 

which can be shipped by barge, and that is the most economical 

way to ship it. 

30

During our first year of operation we unloaded 16 barges of steel 

coil wire. Each barge takes 60 to 75 trailers off of Missouri highways, and I can tell you we need to relieve our Missouri highways. 

If we could haul all the wire by barge, we could take 7,500 trucks 

off the highway. Besides the wear and tear, I’d like to consider the 

pollution that has been moved from our cities and towns when we 

ship on the river. 

Now, we intended to quadruple the barges for 2003 but we ended 

up with an unreliable water source, as Mr. Keith pointed out. The 

barges refused to even consider shipping on the Missouri River because they didn’t want their barges caught. We’ve been advised 

that MEMCO Barge Line will halt operations on the Missouri 

River in 2004, and the owner of Blaske Marine in Alton, Illinois, 

said the chances were slim he would be bringing barges to this city. 

That could cost up to a thousand jobs. 

Why is this a devastating situation? The first reason is we remove a competitive form of transportation from our market. One of 

our fertilizer dealers, a full barge, docks in St. Louis. He is forced 

to unload the barges into hopper cars and then ship to St. Joseph. 

This doubles his transportation costs which is eventually put back 

on to the farmer unit. 

The second reason is that in St. Joseph we have a 200-acre 

brownfield industrial park that we believe that we can develop if 

we have a viable barge facility. Our port authority is the anchor 

for that industrial park. I can’t tell you how many jobs that we 

weren’t successfully able to create in St. Joe in the last five years 

when we were unable to provide land that could be developed. 

The third reason we need to increase the Missouri River flow is 

we are the biggest feeder for the Mississippi River. The Mississippi 

would not be the river it is today without water from the Missouri. 

We have a very short history but we will never realize the potential 

we think we should have if we can’t depend upon the Missouri 

River. 

The Endangered Species Act has closed our barge facility for the 

2004 season. No one in their right mind will take a chance of getting caught on the Missouri with a loaded barge. 

Now, it would make a better story for the press if I could tell you 

that we were going to be bankrupt in a year or two, but I am not 

going to give the press that benefit because we will be here, we will 

survive, because we think that this group that we’re speaking to 

today will eventually see that we can do something about bringing 

some sensibility to the Endangered Species Act. We just don’t have 

enough water on the Missouri River today. Hopefully we will be 

able to evolve from that. 

Chairman GRAVES. Thank you, Mr. DeShon. Next is Mr. Chad 

Smith, who is the Director of the Nebraska Chapter of American 

Rivers. Thank you for being here. I look forward to your testimony. 

STATEMENT OF CHAD SMITH, DIRECTOR, NEBRASKA 

CHAPTER OF AMERICAN RIVERS 

Mr. SMITH. Thank you, Mr. Chairman, Mr. Blunt, Mr. Gibbons. 

I very much appreciate the opportunity to be here today and testify 

on the Endangered Species Act and its role on the Missouri River. 

31

My name is Chad Smith. I’m the Director of the Nebraska Field 

Office for American Rivers, and I have also done work on the Missouri. I come before you as a life-long Nebraskan, hunter, angler 

and conservationist. I grew up and spent a lot of my time on the 

Platte River in central Nebraska. I grew up there duck hunting 

and cat fishing with my dad, and those experiences have grown 

into a passion—you could probably more accurately describe it as 

an obsession—with hunting and fishing that stands to this day. 

As a hunter and angler, I spend a good deal of money every year 

on licenses, gear, travel and other recreation-related expenditures, 

money that flows into the local communities and small businesses 

that support hunting and fishing. Thousands upon thousands of 

other Americans do this every year as well, making hunting, fishing, and other outdoor recreational pursuits a multi-billion dollar 

industry in the United States. 

In all cases the expenditure of those dollars and the viability of 

the small businesses that cater to recreation and tourism depend 

on one common thread: a healthy environment. Outdoor recreation 

and tourism is largely centered on places that attract people to 

them, be they rivers, plains, forests, or mountains. In the case of 

the Missouri River, an immense opportunity to tap into that economic potential is being squandered. The health of the Missouri 

River is in dire straits, and the river is simply not the destination 

of choice of most people in the Missouri River basin. Most have 

turned their backs on the Missouri, and it is not living up to its 

economic potential or providing the kind of quality of life benefits 

that we should expect from a big river system. 

Often the Endangered Species Act is invoked as a tool of last resort to prevent the continued decline in health of a natural system 

like the Missouri River. The focus is often on one or a few species, 

and those species receive much of the attention in the public policy 

debate. But endangered and threatened species are mere indicators 

of greater problems in an ecosystem and reflect that management 

changes are necessary to help not just particular endangered species, but ultimately all the native species that inhabit the ecosystem and the people that depend on the ecosystem system as 

well. 

Over the past 15 years the Army Corps of Engineers has spent 

millions of taxpayer dollars analyzing these potential changes in 

the operation of six large main stem dams on the Missouri River. 

This process is part and parcel of the Corps’ attempt to update and 

revise the Missouri River Master Manual which is the guidebook, 

as you know, that the Corps uses to operate the river’s federal 

dams. As a part of that analysis, the Corps has evaluated dam reform options that incorporate more natural flows on the Missouri. 

Natural flow restoration has been called for by an independent 

panel of the Natural Academy of Sciences, the U.S. Fish and Wildlife Service, and all of the fish and wildlife management agencies 

from the states in the Missouri River basin. The Corps itself has 

found that restoring more natural flows to the Missouri River will 

actually result in an annual net economic benefit to at least $8.8 

million for the basin. Corps studies also show that we can do that 

and achieve this economic benefit without ceasing navigation on 

the lower Missouri, improving navigation on the Mississippi, withVerDate 0ct 09 2002 17:32 Aug 16, 2004 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6633 G:\HEARINGS\93892.TXT MIKEA
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out unduly impacting floodplain farmers along the river and ensuring that everyone gets their power and their water. 

Further, the economic options presented by a Missouri River that 

once again looks and acts like a river are endless. By making the 

Missouri River a destination for hunters, anglers, boaters, campers, 

hikers and families, communities up and down the river can tap 

into limitless economic possibilities that are associated with outdoor recreation and tourism. Coupled with on-going agricultural 

practices in the floodplain and other traditional uses of the river, 

the Missouri River can truly become an economic engine for this 

entire basin. 

On the Missouri, as in so many cases, the Endangered Species 

Act can be a tool to not just ensure a species avoids extirpation. 

The Endangered Species Act is ultimately a tool to help us to realize ways to better manage natural systems, link them more directly 

with our economic prosperity, and ensure we leave a lasting legacy 

for future generations. The acrimony that has followed the Master 

Manual revision process on the Missouri River is unfortunate and 

largely unnecessary. We now need to focus on how to deal with potential impacts of flow restoration, ensure no single person or 

group is unfairly given the burden of management changes, and 

begin implementing a new vision for the Missouri River and the 

valley through which it flows.The Endangered Species Act is but 

one tool to help us toward that end. Thank you. 

[Mr. Smith’s statement may be found in the appendix.] 

Chairman GRAVES. Thank you, Mr. Smith. We will now hear 

from Paul Davis, who has come to us from Interstate Marine Terminals, Incorporated. I appreciate you being here. 

STATEMENT OF PAUL DAVIS, INTERSTATE MARINE 

TERMINALS, BOONVILLE, MISSOURI 

Mr. DAVIS. Good morning, Mr. Chairman, and thank you for allowing me the opportunity to share some comments with you regarding the impact of the Endangered Species Act on commercial 

navigation on the Missouri River. 

I am Paul Davis, the owner of a family-owned barge terminal, located on the Missouri River at Boonville, Missouri. Founded in 

1971, Interstate Marine Terminals ships and receives bulk commodities, primarily fertilizer, feed, grain, and salt by barge, truck 

and rail. We are also partners with the Howard Cooper Regional 

Port Authority, which is the only state-funded public use bargedocking facility on the Missouri River between St. Louis and Kansas City. Our company distributes products to some 250 wholesale 

customers in a 150-mile radius of Boonville. I have worked at our 

terminal in Boonville since 1974. 

In July 2003, a federal judge ordered the U.S. Army Corps of Engineers to reduce Missouri River flows. The court order was in response to arguments by conservation groups that high flows on the 

lower portions of the river threaten the least tern, piping plover 

and pallid sturgeon, which must be protected by the Endangered 

Species Act. As a result of the court-ordered stoppage of navigation 

on the Missouri River, the primary barge-towing carriers canceled 

much of the fall 2003 service to facilities such as mine. Prior to the 

stoppage, I had anticipated delivery of 25,000 tons of fertilizer and 

33

grain outbound shipments for the fall of 2003. Eighteen of the 19 

barges were canceled because of the stoppage. 

As a result, my facility only received 1,300 tons by barge of the 

planned 25,000 tons in the fall of 2003. The other 23,700 tons was 

moved by truck and/or rail, with additional freight costs of $15 per 

ton average. $15 per ton additional freight adds approximately nine 

percent to the average cost of fertilizer at Boonville, resulting in 

extra costs in fall 2003 estimated at $355,000. This extra cost of 

doing business is ultimately passed on to farmers in higher fertilizer costs and to consumers in higher food costs. 

Additional costs are incurred as freight is diverted from barges 

to trucks in the form of additional wear and tear on highways, 

more pollution from truck fuel burning, and more tires going into 

landfills. 

In addition to the negative economic impact experienced by my 

business last fall, which can be quantitatively measured, the longterm effect of the 15-year struggle over the river flow has been to 

cause shippers to seek alternate freight modes rather than to constantly deal with the uncertain future of Missouri River navigation. 

Due to the minimum service summer flows, my company is handling reduced barge tonnage in highway salt, molasses, and grain. 

With the reduced flows, the lower barge drafts have made products 

uncompetitive in my market area. 

Due to the uncertain future of Missouri River navigation, I have 

observed neither construction of new facilities nor expansion of existing facilities on the lower river for many years. In 1988, when 

the Corps commenced the Missouri River Master Manual review 

process, the Corps predicted that the review would be completed in 

three years. And yet, 15 years later we find ourselves no closer to 

a solution that everyone can live with than we were when the review began. 

Just last week I had a phone conversation with a manager in a 

company that produces a product I am interested in bringing in to 

mid-Missouri for distribution. When I told the man that I owned 

a barge terminal on the Missouri River, he was silent for a moment 

and then asked, ‘‘Isn’t that the river that might not have any 

barges in the future? Are you sure that we could even ship our 

product to you?’’ And then he went on to say, ‘‘I’ll get back to you 

in a couple of weeks.’’ everyone in this room that’s in business 

knows what that means. 

I am sure that any number of companies that might normally be 

interested in expanding into the Missouri market will not do so as 

long as the cloud of uncertainty caused by the ESA issue remains. 

There is currently much debate in the United States regarding 

the outsourcing of jobs to offshore locations such as India and 

China. In our increasingly global economy, an open marketplace 

will invariably seek out lower costs of production. One way to help 

prevent the additional job loss, in my opinion, would be for the 

United States to seriously re-examine the Endangered Species Act. 

The ESA was passed over 30 years ago in a show of bipartisan 

good intentions to help animals on the brink of extinction. But 

since that time environmental groups have hijacked the Act, turning it into a bludgeon by which they can enforce their vision of a 

development-free America. The ESA’s capricious and uneven enVerDate 0ct 09 2002 17:32 Aug 16, 2004 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6633 G:\HEARINGS\93892.TXT MIKEA
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forcement only underscores the utter bankruptcy of the law. The 

government spends so much of its time and money defending itself 

from specious litigation, mostly by environmental groups, that 

there’s little time left to actually devote to flora or fauna. 

Currently the ESA provides only penalties against non-compliant 

property owners and developers. The natural reaction to the threat 

of penalty is that some property owners remove or diminish habitat, rather than enhance, in an effort to prevent endangered species from habituating on their property in the first place. Well, 

Gentlemen, this is exactly opposite of the intention of the ESA. 

And I suggest rather than just penalizing those in non-compliance, 

the government should develop an incentive-based approach that 

rewards landowners with endangered species habitat enhancement. 

If this is not done, I believe endangered species recovery will continue to be a divisive issue that further erodes our ability to compete in the global economy. 

Thank you. 

[Mr. Davis’ statement may be found in the appendix] 

Chairman GRAVES. Thank you, Mr. Davis. Now we will hear from 

Bruce Hanson with MFA. 

STATEMENT OF BRUCE HANSON, VICE PRESIDENT OF 

TRANSPORTATION AND DISTRIBUTION, MFA, INCORPORATED 

Mr. HANSON. Thank you, Mr. Chairman. I appreciate the opportunity to be here this morning. 

My name is Bruce Hanson. I am vice president of transportation 

and distribution for MFA, Incorporated. MFA is a regional agricultural cooperative serving 45,000 members in several Midwestern 

states. I am here to testify on the impact the Endangered Species 

Act has on our farmer owners and the agricultural economy at the 

current time. 

Farmers pay retail prices for their inputs and sell their output 

at wholesale prices. They also pay the freight both ways. Transportation costs dictate market access and profits. Reliability and consistency is critical. For the past two years, and apparently this 

coming season, the Missouri River has been and will be neither. 

MFA has facilities to receive fertilizer and ship grain on the Arkansas, Mississippi, and Missouri Rivers. We move over ten million 

bushels of grain and 500,000 tons of fertilizer via the river system. 

We calculated the following impact to our members based on our 

tonnage moved on the Missouri River. One 8’6’’ draft barge holds 

on average 1,500 tons. That’s equivalent to 15 rail cars or 60 

trucks. Railroads are at capacity. We have averaged 15- to 30-day 

delays in receiving rail cars since November, and our highways and 

bridges are in need of major repair and are congested. 

The Gulf Coast export market is the primary destination for the 

Missouri River grain. The Gulf market does not take single rail car 

shipments, only unit trains. Further, grain basis values are often 

highest during the late spring and summer months. Therefore, 

without reliable river transport, this market is shut out to our 

farmers. Using actual rates published in Union Pacific Railroad’s 

tariff, the freight from Kansas City to the Louisiana gulf in 75-car 

unit trains is 52 cents per bushel. By comparison, a normal barge 

rate from Kansas City to the Louisiana gulf is 38 cents per bushel. 

35

Based on MFA’s Missouri River volume, this will cost us and our 

producers over $750,000 in lost grain values due to market access, 

timing and freight costs. MFA has a fertilizer facility at Brunswick, 

Missouri. Over two-thirds of our inbound fertilizer normally moves 

via water. None will this season. The economic impact of shifting 

to higher cost, less environmentally friendly modes is $1.1 million. 

Mr. Chairman, that’s almost $2 million historically. 

Newly developed research has indicated that the preliminary cost 

to Missouri agriculture due to the inability to use the Missouri 

River transportation is over $22 million. 

I have to ask, ‘‘Where is the common sense?’’ closing a major navigable waterway for experiments is illogical. Less than 25 percent 

of the river is tern and plover habitat. Alternative means of creating habitat exist. On the Platte River, islands and sand pits 

produce over seven times as many birds at half the cost. Approximately half of the adult plovers nest above the Gavin’s Point Dam. 

Where is the common sense? 

The pallid sturgeon’s range is from Montana to Louisiana. We 

heard a little bit about that this morning. Yet some propose to restore habitat where sturgeon haven’t been found in six years, perhaps at the detriment to locations where they do exist. Where is 

the common sense? We have 200 native natural sturgeon in the 

river I heard this morning. That means there’s maybe 50 breeding 

pairs a year, and we’re going to shut down a major navigational 

system. Let’s not forget the introduction of non-native, predatory 

fish for sport that eat young sturgeon. Where is the common sense 

in that? 

I believe that most people are environmentalists. However, some 

are radical fanatics who are anti-growth, anti-progress, anti-anything. Look at the debate on our lock-and-dam system on the Mississippi and Illinois Rivers. Decades and millions of dollars have 

been spent on studies and environmental mitigation without much 

progress. Meanwhile, foreign competitors continue to invest and 

modernize their waterways to this country’s economic detriment. 

It is time to remove the protective skirt that these groups hide 

behind called the Endangered Species Act. It is time to get down 

to real business. Reform the Endangered Species Act to operate 

this country for people and prosperity. That is common sense. 

Thank you. 

[Mr. Hanson’s statement may be found in the appendix.] 

Chairman GRAVES. Thank you all. We will now have questions. 

We will try to keep our answers as brief as possible so we can get 

back on schedule. I know everybody has schedules to keep. I do 

have a question for Mr. Smith. 

When you talk about the Endangered Species Act, it seems more 

instead of a danger zone it’s what you can use the Endangered Species Act to achieve. In another comment I think you said, ‘‘a river 

that looks and acts more like a major river.’’ can you tell me 

what—that baffles me. Can you tell me what your ideal impression 

of a river should look like? 

Mr. SMITH. Well, I don’t think there really is any ideal that any 

one person has. It depends a lot on what the input in the river is. 

This river out here is a ditch, and the rest of it upstream is pooled 

36

underneath large reservoirs. It’s not the Missouri River that 

evolved over time. 

Now, I don’t, or our organization doesn’t support turning everything back to the way it was originally, but to be able to get people 

out there and enjoy something that’s not deadly dangerous to children when they want to get out there to swim, that attracts fish 

and wildlife so people can get out there and bird watch and hunt 

and fish, we need to try and bring back some of the characteristics 

of the river. 

The heartbeat of any major river system is its natural flow. 

Again, we’re not going to go back to the pre-dam unregulated flow, 

but we can bring back small pieces of that heartbeat and try to get 

the function of the river working again. 

In terms of the form, I’ve heard them talk about several times 

today there’s a lot of effort underway right now today with sellers 

and others to try to cooperate with landowners to try to get the 

river spread out in a few places, have some side channels, some 

wetlands, some backwaters, the kind of habitat that got lost in the 

channel of the river. That’s not only for fish and wildlife; that’s 

where someone who wants to hunt and fish, that’s where we would 

go to hunt and fish. 

So just trying to get away from thinking of the Missouri as a 

commercial artery that people largely ignore; and I’ve found that 

to be the case as I’ve traveled up and down this basin for six years 

now. Getting the river away from that image and getting people to 

think of it as an asset is going to require some effort on the form 

and the function, not turning back to the provision of what it was 

that caused it, but trying to get it to actually be a system of delivery out there. 

Chairman GRAVES. What is your group looking for? For a commercial route? 

Mr. SMITH. They were, and we made an attempt to try to make 

a commercial route, but it’s been a failure in large part as a route 

for a long time; and I still firmly believe you can continue to have 

navigation in some way on this river but also do something for this 

river that brings people back to it, and I don’t think it’s something 

that’s not a need or situation. I think you have the impediment 

right now you can focus on this endangered species stuff and that 

is very real and felt antagonism towards, and we need to focus on 

how do we get over some of these failures. We don’t have the navigators bearing the burden, we don’t have the farmers bearing the 

burden, but people need to realize there is a process out there. 

Chairman GRAVES. Give me a sense for our children swimming 

out there and bringing the people back. Even Lewis and Clark, you 

know, according to the journal, one of them even says he dipped 

a cup down in the river and you pull it up and it’s full of mud and 

half of it’s water. What’s taking the river back to that? I don’t want 

my kids to be swimming in it. For that matter, even the mosquitos 

are a huge problem for getting back to that. You know, if we have 

the pools and backwater stuff, that’s going to have insects there. 

I just don’t, I absolutely just do not see—I do not see the rationale 

behind going to that, which I don’t believe will—you know, is going 

to accomplish anything at the expense of all these lives that we’re 

going to affect. It baffles me that we are at that point. 

37

Mr. SMITH. Well, we can come to an agreement, I think, about 

what the river can mean for a wide variety of people, and I really 

believe that it is a false choice to say that a healthy environment 

does not equal a healthy economy. I think those two things go hand 

in hand, and helping the environment doesn’t mean taking things 

back to the way they were in 1804, but we have a lot of information that we’ve gained over the past hundred years of doing science 

in this country on the Missouri. There’s any number of scientific 

studies that talk about the need for having flow recreation and 

habitat restoration to a measured degree, and I firmly believe that 

we can take some of those small steps forward and bring some of 

this river back and not drop jobs down the river and, in fact, creating more jobs and make this river truly an economic engine for 

this basin. But I think people think it is that now but it’s not, but 

it could be. 

Chairman GRAVES. Mr. Blunt? 

Mr. BLUNT. Mr. DeShon, the port authority, do you own any facilities? Does the port authority manage any facilities? 

Mr. DESHON. Yes, we have a 13-acre site where our new barge 

facility is built now. 

Mr. BLUNT. It’s a new barge facility? 

Mr. DESHON. New barge facility. 

Mr. BLUNT. How much of an investment was made in it? 

Mr. DESHON. About a million and a half dollars. 

Mr. BLUNT. And essentially that new facility won’t be used in the 

next year or two? 

Mr. DESHON. Not in barges. It’s interesting that you ask that, 

now I can tell you, we will bring in the steel now, it’s going to come 

from Canada. It will not come from Houston, and so that affects 

our balance-in-trade, and that’s unfortunate because I prefer to buy 

steel in the United States. 

Mr. BLUNT. And the steel will come in by? 

Mr. DESHON. Railroad. 

Mr. BLUNT. By railroad. 

Mr. DESHON. Or truck. 

Mr. BLUNT. Mr. Davis, you mentioned the fertilizer costs. In answer to the fertilizer costs that Mr. Hanson mentioned, the enhanced, the added transportation costs, doesn’t that create a competitive problem for us because just because we have extra costs on 

this part of the river, that doesn’t mean the price is going to go up 

where that grain is ultimately sold, does it? 

Mr. DAVIS. That’s the essence of the economic negative impact on 

the farmers is that that does not. In fact, the farmer cannot pass 

on those costs. They take the direct hit. They are going to get the 

same price for their grain as the Gulf or wherever, but the transportation costs increase so they’re the ones that are impacted. 

Similarly on fertilizer. They have extra costs in fertilizer, particularly cost of production. They’re not getting paid any more for their 

product. 

Mr. BLUNT. You’ve been in business a long time now. What do 

you see over the last couple of decades? Give us a comparison of 

where you see the future today compared to where you did 20 years 

ago when you were looking at the traffic and the barge situation 

you were looking at there. 

38

Mr. DAVIS. Well, I’ll say this: Being a family business, if we had 

known 30 years ago that we would be sitting here today talking to 

these issues, we never would have invested in the first place, but 

there was a need for a facility like ours because the railroad service 

was already in a declining mode, and we just filled a market need 

which continues to be there today. 

Before, in the late ’80s we were doing up to 100,000 tons a year 

through our facility. Due to the uncertainty of this debate over the 

river flows and no confidence in the expansion, and it’s like the 

death of a thousand paper cuts. We’re lucky to do 40,000 tons a 

year now just because all of our market has been nervous for a long 

time, they’re finding alternate methods of shipping. So it’s just 

been a gradual decline, and this year no towing, in essence, on the 

river. 

I can remember when I first started there were eight or ten tow 

companies on the river and it was a very viable industry. It’s not 

that the market isn’t there for it. It’s just when there’s the uncertainty, people’s instinct is to find other ways to do business. 

Mr. BLUNT. Mr. Hanson, you talked about the importance of having a unit train, a dedicated train. You sell grain, obviously, to offloading and other considerations. I guess your point is it’s a lot 

harder to fill up that dedicated train at a one-barge location than 

it would have been to fill up a six-state and a 32 or a 30 car. 

Mr. HANSON. That’s correct, and also there are not unit train stations along this part of the Missouri River. They’re all smaller, 10, 

15, 3, 4, 6 car shipping locations, so the fact of even having that 

option would require the investment of, you know, millions of dollars. 

Mr. BLUNT. So without barge traffic how do you get the best market. 

Mr. Hanson. Well, you go to your second or third best market 

and you go by truck. 

Mr. BLUNT. That’s what I thought. That’s what I thought. 

Just one question, Mr. Smith. Do you take litigation that you believe are primary litigants and do some litigation on this issue? 

Mr. SMITH. Yes. 

Mr. BLUNT. And you mentioned that the Endangered Species Act 

is offered as a tool of last resort. Do you think that’s why the Act 

was created? 

Mr. SMITH. Well, I certainly think for some of the species it is 

a tool of last resort when nothing else has worked and they are getting some extra protection. If that doesn’t happen, that’s pretty important. In terms of—we’ve all known the public policy, and I’ll 

speak specifically to the Missouri River. Me personally, my organization, other conservation groups I work with throughout the 

basin, most of my time in the past six years has been spent on the 

road giving presentations, talking to civic groups, going to meetings, working, trying to work cooperatively with the Corps of Engineers, elected officials, whoever will listen to try to find a way to 

avoid litigation and get rid of this endangered species issue and implement a vision for the future and get it working, and it simply 

has never happened. 

The Corps of Engineers, as everyone says here, as everyone 

knows, has been working on this for 15 years and they keep putVerDate 0ct 09 2002 17:32 Aug 16, 2004 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6633 G:\HEARINGS\93892.TXT MIKEA
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ting out the same plan after the same plan, and we’re not getting 

to the heart of the matter. I don’t want to be involved in litigation. 

It costs me a huge amount of time and effort to be involved in that. 

It’s not a perfect solution. It’s extremely complicated. I’m wasting 

my time dealing with attorneys and briefs and litigation when I 

could be out trying to work with people and figure out a way to 

do this, but frankly, we get to a place where you have a species 

like the pallid sturgeon that’s about extinct when there’s an indicator that there are some things seriously wrong on the river system like the Missouri. 

This is the kind of thing we get left to and, you know, I think 

a lot of the problems with the Endangered Species Act maybe 

aren’t necessarily in the language of the Act itself but are problems 

with perception and implementation that we’re all a part of, and 

I think we need to be much more focused on recovery. We need to 

be focused on solution building. I mean, I think it would be a great 

idea to invest in making sure that there were unit train stations, 

that we don’t have to—maybe we need to help deal with the power 

plants to deal with water issues. Maybe we need to invest in pumping structures for farmers who are having the most considered 

drainage problems. 

That’s where we need to be on this: How do we fix these problems and do it so that those people can continue to operate and 

make a living and do business but so that other people can get out 

and take advantage of the Missouri, too, and so they can do better 

things for their communities. I think we focus too much time—I 

frankly I don’t even care about the threatened and endangered species. My concern is the fact that they are an indicator there is 

something seriously wrong on this river. 

When my daughter grows up, she may not be able to get out and 

enjoy the Missouri River at all. That’s something I’m not going to 

allow to stand, and we need to focus away from the individual species and think more about how do we fix problems and how do we 

make things work for people. 

Mr. BLUNT. Are you aware of your expenses as part of the litigation, your group? 

Mr. SMITH. Yes. 

Mr. BLUNT. What percentage of your budget goes to litigation? 

Mr. SMITH. Our lawyers are working pro bono. 

Mr. GIBBONS. Thank you very much, Mr. Chairman. I know the 

time is short. I’ll try to keep my questions brief. I only have really 

one question, and it goes to Mr. Smith. 

As a representative of the bringing rivers to life, American Rivers Organization, you speak for that group? 

Mr. SMITH. Uh-huh. 

Mr. GIBBONS. After listening to literally every one of the other 

people who came before this Committee this morning, does your 

Committee accept the concept or will you endorse the concept that 

the Endangered Species Act has to be modernized for the 21st Century? 

Mr. SMITH. I think in terms of implementation it probably does. 

I’m not an expert on the language and I’m not a lawyer so I——

Mr. GIBBONS. Let me just paraphrase———. 

Mr. SMITH[CONTINUING] Okay. 

40

Mr. GIBBONS.—with you because I think it’s very simple. What 

I hear Mr. Davis saying is barge traffic being low due low water 

added freight costs, is going to add to both the cost of products that 

are going to be brought up here, it’s going to add to the pollution, 

air pollution, landfill pollution, it’s going to add to the loss of competition, the loss of businesses, loss of jobs in this area. And you 

take that and add that to the fact that there have been 1,250 species listed on the Endangered Species Act and 15 or so have been 

recovered throughout all of that time frame, billions of dollars have 

been spent on the Endangered Species Act, most of which have 

been in bullet-proofing acts for losses to that organization before, 

and most of the dollars are spent in defending litigation rather 

than on the recovery. Because 15 out of 1,260 species is not what 

I call a good result, and in fact, it’s been in existence for nearly 

three decades. 

So you would think, like most of the people here think, that this 

Endangered Species Act has to be made so that it accommodates, 

as you would say, the economy and the environment, and all of us 

would agree. We’re not here to say that we need to do away with 

the Endangered Species Act 

Mr. SMITH. Yes. 

Mr. GIBBONS. We want to modernize it so that we can handle 

some of these issues that were brought up by your organization; 

and you speak for them, you’re the pulse of that organization. 

Would you say that it needs to be modernized? 

Mr. SMITH. I think in the implementation it does. You know, I 

just—I’m not going to give a definitive answer on if there’s language in the Act that needs to be changed because I think—and 

I think the Missouri is a great thing. I think the Endangered Species Act needs to be focused on recovery of species that we have a 

better result than 15 out of 1,200 and also that we deal with issues 

of the economy. 

Mr. GIBBONS. If we don’t change the structure of the law, courts 

will continue to interpret the law the way they have in the past 

which has resulted in nearly a bankruptcy that everybody that’s 

come here as a witness today complained about. 

Mr. SMITH. Right, I understand. 

Mr. GIBBONS. So it’s my belief and the way I believe this ESA 

should be amended is that there ought to be some accommodations 

for these people. There ought to be indemnity for people operating 

on the river in low water, so if there’s something that occurs that 

isn’t the result of their act but due to the Bureau of Reclamation 

or whomever, lowering the water on the river—or, in fact, what 

about the idea that there ought to be accountability and responsibility for disaffected environmental groups that bring litigation on 

the ESA as a tool to stop and block any kind of progress? 

There ought to be some sort of accountability and responsibility. 

For example, if their frivolous lawsuit is lost in court that they pay 

for the damages that they caused by bringing a frivolous lawsuit. 

Those are just simple modernizations that we can do that would 

make it workable, what would take it out of the court’s hands, put 

it into the hands of the people who are going to better utilize both 

the resources and the protected species. These are things that I 

think that the American public is expecting of us, and these are the 

41

kinds of things that we’re going to work toward, and that’s all I 

have to say. Thank you. 

Chairman GRAVES. First I have a question before I close, one further question, and I’ll direct it to Dick—Chad, you can you can answer too, if you want—but each one of you, how do you feel about 

the pallid sturgeon being put—the survival of the pallid sturgeon 

being put over your own survival in the port authority? 

Mr. DESHON. Well, it’s—it’s kind of like buildings we have in this 

city. We’re obviously not going to save every old historic building. 

I’d like to but we’re not. We’re in another century of worry, and you 

know, I get very concerned when Mr. Smith talks about the river 

being turned into a natural flow. Does that mean he wants to take 

all of our levees out, does that mean we go out and tear the dams 

out? I’m not sure what that really means, but that would be returning the river to its natural flow. We have a river out here a 

mile wide. We have no control, and I, you know, I think it’s a much 

bigger issue than returning to its natural flow. 

Mr. SMITH. Well, let me say one thing. Certainly anybody that 

has followed this issue for the last several years knows that we’re 

not advocating removing levees and taking out dams and that sort 

of thing. I believe it’s inaccurate to characterize this as putting the 

pallid sturgeon above people. 

I think we can have the pallid sturgeon, we can have the transportation, we can have hunting and fishing, and we can have a 

river that works for this basin, and that’s our vision and we hope 

other people have that too. 

Chairman GRAVES. Mr. Davis? 

Mr. DAVIS. I think it’s exactly about putting the pallid sturgeon 

above people. I’ve lived and enjoyed living along the Missouri River 

almost as long as a lot of people in this room, and I’m personally 

offended when it’s referred to as a ditch. 

It’s interesting that a number of years ago in the middle of this 

process there were public hearings from St. Joe and farther north, 

but I attended public hearings sponsored by the Corps from St. Joe, 

Jeff City, St. Louis, Memphis, and it went on down to New Orleans, and the overwhelming reaction by the farmers at those hearings right in this room, I believe, about the so-called spring-rise 

concept, the farmers filled this room. It was so violently opposed 

to that concept that the Corps of Engineers—and I’ve always had 

the utmost respect for them—graciously acknowledged that they 

had not considered the economic impact of backed-up interior 

drainage if there was a spring rise; and they said we will go back 

and we will consider that.That took five years for the Corps to look 

at it again. 

In my perception—and I’ve been watching this since day one—

in that interim period up unto that point the economics were being 

looked at, in my opinion, it was an equal balance of the ESA, but 

along came the focus on the pallid sturgeon and all of a sudden the 

tide turned against us, and it’s been that way ever since. So I think 

its political totally behind, hiding behind ESA and using, as I say, 

a bludgeon. 

I’ll make a final comment in terms of your question about how 

I feel about the pallid sturgeon. The same way I feel about us sending dollars overseas when we have lots of needs for money being 

42

spent on poor people in the South or in the ghettos or whatever. 

We have real needs here and yet we’re sending money overseas. 

Nobody’s offering me a lifeline on this issue, and I’m here feeling 

pretty endangered myself. You know, ultimately God created a 

wonderful world, but there’s a lot of survival on sustenance, and 

here it is survival of the fittest, and nobody is offering me any lifeline on survival of the fittest like we are on the pallid sturgeon. 

Thank you. 

Mr. HANSON. Well, first I’d like to say there’s vision and then 

there’s reality. One you have to deal with; the other you can think 

about. 

Number two, I think the Endangered Species Act is used exactly 

as a tool to force issues in litigation and get sympathetic ears and 

make decisions that are whatever side you want to make them on. 

It’s not being used for a lot else. I don’t think anybody out here 

wants to see people or species go extinct. I certainly don’t want to 

see people go extinct. Fish don’t pay taxes. You know, I don’t know 

if there’s reincarnation, but I know I damn sure don’t want to come 

back as a pallid sturgeon because that doesn’t sound like a lot of 

fun. 

So I would say this: If we need to do things for historic habitat 

for species, let’s do those things. If we need to put them in a zoo, 

in a breeding, in an aquarium, whatever format we need to to 

learn, to study them to help them reproduce, fine, let’s do that. 

We’ve got 200 fish that we’re worried about. We’ve released 40,000? 

I mean, where’s reality? 

Chairman GRAVES. Thank you all for being here. I’ll offer this information. We will put the legislation together to make changes to 

the Endangered Species Act and bring it a little bit more into reality. We will be able to take some of these factors into account 

when making these decisions and move away from using the law 

to put fish ahead of people. 

We appreciate Mr. Blunt being here today, and Mr. Gibbons, 

we’re going to be working with the Chairman, Vice Chairman of 

the Resources Committee on this legislation, and I look forward to 

doing that, and finally, we in Washington appreciate you being 

here and we’ll be taking our findings and putting them into the legislation. 

I do want to say for the record that we invited people both pro 

and con, such as the Sierra Club and others, who declined to testify. 

I appreciate everyone who was here today. Thank you for your 

testimony. Thank you very much. This meeting is adjourned. 

[Whereupon, at 12:06 p.m., the Subcommittee was adjourned.]

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