Farmers taking flooding worries to court
May 14th, 2014
Omaha, NE — The river landowners want compensation for damage to their land and assurance theyâ€™ll be protected from floods in the future. The lawsuit claims floods have been more frequent and severe along the Missouri in the last seven years, since the Corps of Engineers began widening portions of the river. The Corps controls the river, and theyâ€™re in the midst of a project toÂ restore sandbars and shallow water habitat for endangered birds and fish.[audio:https://kvnonews.com/wp-content/uploads/2014/05/Missouri_Lawsuit_KVNO.mp3]
The Army of Corps of Engineers says it wonâ€™t comment on pending legislation, but Dan Boulware, an attorney representing the landowners, says the Corps is prioritizing endangered species over farmers.
â€œCongress made a decision to tame the river and to have people move in and create new farmland and the Corps did a magnificent job of doing that,â€ Boulware said. â€œNow what theyâ€™re doing, theyâ€™re taking the river back.â€
He says landowners want the Corps to keep the river in its designated channel, and keep the channel contained.
Leaving its mark
The flood of 2011 was the largest on the Missouri River in more than 50 years and the largest water runoff event in the basin in recorded history.
Miles of farmland in Nebraska, Iowa, Missouri and Kansas were under water. Rich topsoil washed away. In some places, the river carved craters big enough to bury a tractor and other parts were covered by three-foot drifts of sand, like snowbanks after a blizzard.
At his farm near Tekamah, Neb., Scott Olson is still recovering from the damage. For 100 days, 500 acres of the Olson familyâ€™s farmland was under water.Â Back in the spring of 2012, Olson described the floodâ€™s aftermath.
â€œEverybody said it looked like being on the moon,â€ Olson said.Â Now, three years after the flood, Olson and other affected farmers are trying to cope.
â€œEverything I knew about farming this piece down here weâ€™ve kind of had to throw out the window and start all over again because everythingâ€™s different down here,â€ Olson said as he drove through his fields toward the river.
Olson is still moving sand off of some 40 acres that used to be fertile farmland. He can plant the rest of the field, but itâ€™s not back to normal.
Turning the channel
The Corps of Engineers is in charge of the Missouri River. It controls the dams and reservoirs that can help control floods or keep the water flowing.
â€œTheyâ€™ve slowed the water down,â€ Boulware said. â€œTheyâ€™ve spread it out and theyâ€™ve changed the way the river drains.â€
But protecting land adjacent to the river is just one of the Corpsâ€™ mandated river management goals. Itâ€™s also responsible for supplying water in upriver reservoirs for recreation, monitoring water quality, securing a steady water supply for riverside communities and power plants, and maintaining a navigation channel for barge shipments.
â€œThe channel is part of the problem,â€ said Paul Lepisto, a river conservationist with theÂ Izaak Walton League. â€œThe channel is not part of the solution.â€
Lepisto says the Corps has a responsibility to reserve space for endangered species. And he says landowners are better off because widening the river to make habitat gives floodwater a place to spread out. That takes pressure off of the levee system. But in the end, the floodplain is a risky place to be.
â€œThereâ€™s a false sense of security that the navigation channel and levees that have been put up provide a measure of protection,â€ Lepisto said. â€œ2011 showed that the river is still the river and that the river is still boss.â€
Landowners feel like theyâ€™re losing out to environmental interests on the river. Robert Schneiders, who has written about the history of the Missouri, says the lawsuit is a way for farmers to guard their turf.
â€œThey have taken a very hard-line, bar-none approach,â€ Schneiders said.Â â€œThey do not want one acre going to habitat restoration and true, natural flood control.â€
Even though there have been major floods before â€“ in 1952 and 1993, in particular – Schneiders says the flood of 2011 seems to have convinced farmers they canâ€™t count on the Corps to put their priorities first.
â€œFarmers oppose river restoration because they are fearful that they will have to forfeit land to the projects – and thus they and the counties south of Sioux City (Iowa) will lose both income and tax revenue,â€ Schneiders said.
But itâ€™s not clear the current lawsuit will provide the security landowners are after. Sandra Zellmer, a water law expert at the University of Nebraska-Lincoln, says history is against them. Similar lawsuits in the past have failed.
â€œEvery single one of them except for one significant case has lost — the landowner has lost,â€ Zellmer said.
In the one exception, theÂ Supreme Court foundÂ the Corps didnâ€™t follow its own Master Manual for river management. Zellmer says that doesnâ€™t look like the case in this instance and the Corps was authorized to manage the river the way it did.
â€œThereâ€™s really no evidence that they departed from the Master Manual and certainly no evidence that they departed from those authorized purposes, of which flood control is only one,â€ Zellmer said.
That suggests the court case may be a challenge for landowners, but the lawsuit is not only a legal challenge itâ€™s also a political appeal.
Where Scott Olsonâ€™s land meets the Missouri River, a bank of sand rises from the water giving the impression that youâ€™re standing in a desert oasis or on some remote beach property. Itâ€™s one of the features left by the flood that will probably never be repaired.
Whether landowners win or lose their lawsuit, Scott Olson hopes the case captures the attention of Congress and renews the political debate over how the river is managed.
â€œThe past I suppose I can live with. I donâ€™t have much choice,â€ Olson said. â€œBut the future of not knowing what this river is going to do or what theyâ€™re going to do with the river. The future of my land, whether I can pass it down to my children or not. It means a lot.â€
What Olson and other farmers arenâ€™t sure about, and what they really want to know, is what will happen next time the water starts to rise.
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