The following essay is excerpted from Bob Kerrey’s manuscript for the Heuermann Lecture at Hardin Hall, University of Nebraska-Lincoln, on Dec. 12, 2011.
I have come home to talk about the politics of the Missouri River. In so doing, I want to call your attention to a problem. The problem is the residents of the basin through which this river flows have no public authority charged with the responsibility of resolving the constant conflicts we humans have over the uses of the river’s water. We have delegated that authority to a number of federal agencies. This, in turn, guarantees that the politics over the river are at best dysfunctional; at worst, they are counterproductive.
The historic floods of 2011 have brought these politics into full view. It’s worth noting that these floods managed to produce an unusual agreement between Republicans and Democrats in Congress. Thirteen upstream and downstream senators have united in criticizing the U.S. Army Corps of Engineers. They sent a letter to the General Accounting Administration.
The senators are asking the GAO to examine specific actions leading up to the Missouri River floods, including whether the Corps fully adhered to their Master Manual used to calculate the timing and size of water releases from their six Missouri River dams. They want to know if the releases contributed to the flood’s impact rather than a freakish set of weather conditions that combined to produce the largest amount of water entering the basin since 1898.
To live on the High Plains is to be given an opportunity to learn about the weather. We become skilled at watching the sky in order to detect a sign of an oncoming storm. We discuss and complain about the cold. We discuss and complain about the heat. We embrace the seasonal change, sometimes even in the darkness of winter when we dream of year-round sunshine. We take pride in telling our stories of survival.
Of the three major weather disasters in our memories—floods, tornadoes and blizzards—floods stand out in several important ways. First, they do much more damage. Second, engineers have never proposed innovative ways to eliminate tornadoes or blizzards as they have with floods. Third, only with floods do our memories contain complaints about the government not doing enough to keep the damage at a minimum.
This last difference is significant. I believe the inevitable conflicts over water would be easier to resolve with changes in federal law that brought our elected officials more directly into the decision making about the Missouri River’s stream flow quality and quantity. I believe we need more transparency in the decision-making process. But more on that later.
Before describing what I would like to see us do in the future, a brief history of our land and our river is in order. It is a history that helps me understand why we humans need our water, why we fight over it and how it has defined the place in which we have chosen to live.
This place on the High Plains was born in and created by violence. Violent tectonic shifts, violent volcanic explosions, violent creeping glaciers of ice, violent storms and violent floods. All have shaped this place that looks so flat and so peaceful to those whose only purpose is to drive through as quickly as possible.
The age of this place is not comprehensible. Stand at Monument Rock or Scottsbluff Monument and you can see in the layers of rocks tens of millions of years of history. But try to image 50 to 80 million years ago when the new Rocky Mountains rose from the depths of our earth or 15 million years ago when the Plains rose and drained the great inland sea, and you will fail. Try to imagine a life a mere 20,000 years ago when the last of the great ice ages formed the boundaries of the Missouri River, North America’s longest and most violent river, and you don’t do much better.
It’s hard enough to get the story straight of the great European conflicts over land that began before the 1804 Lewis and Clark expedition. Motivated by Thomas Jefferson’s desire to spread the empire of liberty as far west as possible, this adventure, as we sometimes prefer to forget, set up a fatal conflict between us and the native culture that preceded us.
Still, the likelihood that we will fail to comprehend fully the depth of time that it took to build this place doesn’t mean we shouldn’t try to understand how this place became what it is. Its age just might inspire humility. The process of its creation just might remind us how futile and sometimes dangerous it can be to alter that process because of the inconvenience it produces for modern life.
When we European settlers came upon this river, our primary source of power was provided by we humans or by our domestic animals. When the work of travel and transport was necessary, rivers were an easier, lower-cost way to move. We were moving from east to west and off loaded our cargo on the western banks. We couldn’t use the river in the winter or during the spring floods. We generally moved when the river had enough water to float our boats but not so much to swamp them. Accordingly, we built our warehouses and other structures as close as possible to the water. We did not have enough information to know about 50- or 100-year floods.
We thought all rivers were basically alike. The Missouri, we reasoned, must be just like the Mississippi. We must be able to navigate it the same way. If we could just clear the snags of cottonwoods. If we could just build and maintain a reliable channel. Later, when professional engineers arrived to give answers to the questions asked by settlers and pioneers full of the can-do spirit we admire so much, we began to plan and build dams to provide water for crops when the rains didn’t come and to store the water when there was too much. The engineers told us how we could keep the river channels open and navigable.
In spite of all of this planning and building, we still fight over water. We cannot help ourselves. It’s built into our natures. We’ll cooperate as families, tribes and communities in order to gain strength in numbers. But still we fight. We are willing to go as far as the chicken in providing an egg for breakfast; we are not willing to make the sacrifice of the pig.
In John Wesley Powell’s 1879 “Report on the Lands of the Arid Region of the United States,” he observed that a north-south line approximately at the 100th meridian separated arid and nonarid lands. This line transects Nebraska from Ainsworth to Cozad to Arapahoe. To the east the annual rainfall exceeds 20 inches a year. To the west water shortages make farming a very risky business.
This condition greatly affects the activities of human beings to the west and east of the 100th meridian. To the east, where too much water is the rule, our primary concerns are navigation and flood control. To the west we want to store water in order to irrigate our crops when the rains do not come. We want to divert water from places that have more than we think they need to our farms or our cities.
The development needs of the east led to the establishment of the Army Corps of Engineers. The development needs of the west led to the creation in 1902 of the Federal Bureau of Reclamation, which is located inside the U.S. Department of Interior.
Strong leaders at both of these agencies often acted more out of the desire to build than the need to balance the variety of interests on the river. They were particularly susceptible to the appeals of commercial interests and local boosters in the late 19th and 20th century when navigation construction radically altered the nature of the river.
Further, both of these agencies had ambitions that at times challenged the basic idea of private property rights. Many questioned their authority to control so much of what went on in the basin. Perhaps the most important debate was whether the Commerce Clause of our Constitution gave them the power to determine what structures could and could not be built.
This debate was settled on Dec. 16, 1940. On that day the Supreme Court announces a ruling, United States v. Appalachian Electric. In the decision, the court gave Congress broad authority to develop the rivers for navigation, hydropower, irrigation and recreation, as well as to restrict the rights of private owners of riverside land. On June 2, 1941, in Oklahoma v. Atkinson, they decided that a dam on the Red River was also unconstitutional under the Commerce Clause because of its aim of controlling floods and improving navigation.
Using the authority granted them under these two decisions, Congress passed the Flood Control Act of 1944, more commonly known as the Pick-Sloan Act. On Dec. 22, 1944, President Franklin Delano Roosevelt signed it into law. Section nine of that act authorized the development of the Missouri River basin.
The story of this law begins when Col. Lewis Pick, the Missouri River Division engineer, was tasked with producing a survey to recommend what to build to prevent devastating floods like the one that occurred in 1943. Worried that the Corps of Engineers would dominate development of the river, the Department of Interior’s Bureau of Reclamation sent Glenn Sloan, their Montana office’s assistant director, to produce their own plan.
Pressed by President Roosevelt to reach a compromise, an interagency group met in Omaha in October 1944. The most difficult disagreements involved which agency would be given what authority and which list was going to be authorized by Congress for construction. The agreement gave the Corps the authority over design and management of the main-stem dams. The bureau was given authority over irrigation and much of the hydropower projects in the west. As to which list of dams to build, the compromise was simple: Pick-Sloan authorized the construction of them all. The compromise also gave the states a new, though limited, role in the decision making.
Pick-Sloan had a larger economic, social and environmental impact on the Missouri River basin than any other act by Congress. It transformed the economy of the region from one where agricultural production could be wiped out by too much or too little water to one that dependably produced food for the country and the world. It added more low-cost, clean-power production for businesses and homeowners. It provided man-made lakes and fisheries that brought more tourism and jobs. It reduced the frequency of floods that interrupted commerce and lives. It made navigation possible by lowering the cost and increasing reliability. Amendments to that law have authorized the Corps to become a major force for environmental good by restoring wetlands along the river’s course.
It has not all been positive, however. Millions of acres of wildlife habitat have been destroyed. This loss is much more important than just the risk it has imposed upon endangered species. We have lost one of the world’s best hunting and fishing habitats. Readers of Robert Schneiders’ “Unruly River,” an account of the last two centuries of river development, will learn just how much we have lost of the beauty and value of our wild Missouri.
I wanted to establish some context in order to discuss the conflicts that have occurred and continue to occur over the river. I will now focus my attention on those that have taken place since statehood. They are of several distinct categories.
The first are between upstream and downstream states. The second are between upstream and downstream municipalities. The third are between alternative uses of the stream flow of the water: irrigation versus recreation, navigation versus flood control, environmental versus all of the above.
There are three primary means of resolving these conflicts: negotiation, litigation and federal legislation. Negotiation only works if both parties recognize that the status quo is unacceptable. Otherwise litigation is the only recourse. When all else fails, we turn to federal law, the terms and conditions of which dominates life on or around the Missouri River.
From the beginning of the development of the West, what we need and what we have never had is a multistate mechanism for the 10 Missouri River basin states to resolve conflicts in a way that allows for the people living in the basin to change the use of the river as their vision of the river changes. Ever since Congress rejected John Wesley Powell’s recommendation that the boundaries of river basins be used as the boundaries of newly admitted western states, we have been forced to resolve most of our conflicts in court.
The effect of this is that the will of the people is frustrated and our political leaders are reduced to blaming government officials in order to shift public attention away from them.
The need to create such a mechanism for coordination of planning is not new. Many have tried in the past. From my limited research, it appears to me that Nebraska Sen. Hugh Butler’s 1953 effort to create a Missouri River basin compact was the closest we came to creating a way for officials elected by the public to make Missouri River quality and quantity decisions. Sen. Butler’s proposed legislation would have created the Missouri Basin Commission.
This commission would have been “authorized to make integrated plans for the conservation, development, and use of the basin’s water resources. Member governments would be required to submit to the commission all plans for projects for flood control, irrigation or other use or management that might substantially affect interstate use of water. Findings of the Commission would be binding.” (p. 108, “Big Dam Era,” John Ferrell)
Sen. Butler was chairman of the Senate Committee on Interior and Insular Affairs and was in a position to move his legislation. Tragically, he suffered a stroke on July 1, 1954, and died later that day. His bill was reported out of committee in August but was not considered by the full Senate until 1955. By then opponents had mustered enough strength to ensure its defeat.
The 1965 Water Resources Planning Act was supposed to allow “the several water policies and programs of the federal agencies and state governments to be coordinated in a more comprehensive manner than had occurred in the past.” Under this law, states were granted “coequal status with federal agencies.” In 1972, under the authority of this law, President Nixon created the Missouri River Basin Commission. This entity lasted just nine years. In 1981, without much protest, President Reagan shut it down.
In my opinion, both failed because they had little real power or binding authority. The bark of a dog without teeth does not get our attention.
The next year the 10 states tried again. They created the Missouri Basin States Association, but the MBSA was disbanded in 1986. I was governor at the time and remember being told the MBSA had so little power it wasn’t worth attending the meetings.
Creating a 10-state Missouri Basin Commission with real authority would not end the conflicts. It would allow conflicts to be resolved. This is extremely important to do and next to impossible under current law.
You can see why it is impossible by simply examining the varying importance of the river to each state. Of the 10 states bordering the Missouri basin, three do not touch the main-stem river at all (Colorado, Wyoming and Minnesota), two provide 80 percent of the storage available to the main-stem system (Montana and Wyoming) and three contain the vast majority of Pick-Sloan storage (Montana, North Dakota and South Dakota).
Creating a 10-state Missouri Basin Commission with real authority could not be done unless each state recognized the benefits of working together even in those moments when the vote went against their short-term interests. Acting upon this recognition is among the most difficult thing for democratically elected representatives to accomplish.
Let me illustrate by discussing the details of how I would modify Sen. Butler’s 1954 legislation.
First, I would use his language to superimpose the authority of the Missouri Basin Commission onto existing federal and state agencies. States should not surrender any powers they currently possess. The intent is to move water adjudications form the federal to the state courts.
Second, each of the 10 states would be represented on the commission.
Third, the lands of the Indian nations in the basin would entitle them to voting membership.
Fourth, I would impose upon the Missouri Basin Commission a decision-making process that cannot be bound by a requirement of consensus. Consensus decision making would doom the Missouri Basin Commission to a speedy death. I prefer majority or, in exceptional cases, supermajority rule.
Fifth, I apportioning voting power, I would recognize the importance of the Missouri River to each state and the tribes. I would probably use the fraction of the state the drains into the basin as the basis for apportioning voting power. Here is that analysis:
Colorado — 29 percent
Iowa — 30 percent
Kansas — 50 percent
Minnesota — 2 percent
Missouri — 52 percent
Montana — 82 percent
Nebraska — 100 percent
North Dakota — 59 percent
South Dakota — 97 percent
Wyoming — 75 percent
Sixth, I would allow the governors of each state to be the voting representative or to appoint someone in their stead. I would not impose upon the governors any specific list of required qualifications for appointment other than they had the full support of their governor.
Seventh, I would examine the possibility that the Missouri Basin Authority would have control over the revenue generated by hydropower in the basin. At some point the feds are likely to steal this money from us; better to use I ourselves for the benefit of our basin.
Eighth, I would sunset the commission after five years. It should not have a perpetual existence. A reauthorizing requirement is a healthy check on the power of any governmental entity.
I need to restate that the purpose of the Missouri Basin Commission is not to end our conflicts over the use of the water that flows down the Missouri River. No, the Missouri Basin Commission would solve a significant problem by creating a much-needed public gathering where conflicts can be resolved. By doing so, the people living in the basin could expect less frustration over how the river is managed, greater prosperity as a result of the river’s proper use for current needs and a great satisfaction that we are also allowing the river to sustain the lives of nonhuman species.
The new Heuermann Lectures in the Institute of Agriculture and National Resources at the University of Nebraska-Lincoln focus on meeting the world’s growing food and renewable energy needs while sustaining local resources and rural communities. The lectures are free to the public, made possible through a gift by B. Keith and Norma Heuermann of Phillips. More information can be found at http://heuermannlectures.unl.edu.