Reservoir Operations and the Army’s Legal Fears

In the last week of May 2011, the Army informed residents of the Missouri Valley that it planned on releasing an “unprecedented” quantity of floodwater from its Missouri River main-stem dams. Officials told a stunned public that high flows would emanate from the big dams within just days and would inundate vast portions of the valley from Montana through the state of Missouri. People wondered then, and still wonder now, how a flood of such size and duration could occur with the presence of six of the world’s largest storage reservoirs situated along the Missouri.

Since May, Brigadier General John McMahon (the overall commander for the Missouri River) Colonel Robert Ruch (the head of the Omaha District, which is charged with determining the reservoir release schedule for each of the upstream dams) and Jody Farhat (the reservoir operations manager in Omaha) have promoted a very specific interpretation of the flood of 2011.

That interpretation contends: 1) the flood was too voluminous to contain; 2) the Army made no mistakes in its management of the Missouri River hydraulic system in the months preceding the deluge; 3) officials adhered to the expert, time-tested management guidelines of the Master Manual; 4) since 2010, the operation of the reservoirs for flood control trumped all other reservoir system purposes (including the storage of water for coolant in the lower valley’s power plants, the nine-foot navigation channel, reservoir recreation, hydroelectric generation, and endangered species preservation); 5) the flood resulted from freak rain events in Montana in May.  Without those rains, the reservoirs would have contained the snowmelt and normal rainfall scheduled to enter the system.

McMahon, Ruch, and Farhat have stayed consistently “on message” throughout the flood. None of them have strayed from the above storyline.  Nor have any of them admitted that the Army holds a degree of responsibility for the flood. Rather, they now proclaim that the Army prevented an even worse flood.

The Army’s interpretation of events is just plain wrong.  First, the reservoir system can hold 73.1 million acre feet of water. The total runoff in 2011 will be approximately 61.8 million acre feet.  Had the reservoirs been operated differently, all of the runoff above Gavin’s Point Dam could have been captured by the system.  Second, we now know the reservoirs could have been lowered over the winter and early spring of 2011 to open up more storage space to hold back the approaching super flood. But Farhat chose not to do it. Third, the Master Manual did not give the Army the needed flexibility to respond to the record amount of runoff entering the system.  Nor is it allowing the Army to respond effectively to a possible flood next year.  Fourth, the Army filled the reservoirs in 2010 and early 2011 for a host of purposes unrelated to flood control – such as the generation of hydroelectricity, ensuring water for the nine-foot navigation channel south of Ponca, Nebraska, guaranteeing water to lower valley municipalities and power plants, and providing enough water for the reservoir fishery. Fifth, had the reservoirs been operated strictly for flood control and more than 16.3 million acre feet of storage been freed up by March 1, 2011, the runoff from the “freak” rain events in Montana would have been absorbed by the reservoirs, rather than discharged through the dams.

Yet, the Army continues to insist on its interpretation of events because it fears legal ramifications.  If the flood is deemed the result of the Army’s efforts to satisfy the water demands of lower valley municipalities, the energy sector, barge industry, Mississippi River navigation interests, the reservoir tourism industry, or some other Missouri basin stakeholder, then the Army is liable for damages.  That would mean years of costly litigation.

U.S. law stipulates that the Army is not liable for the damage costs of a flood so long as the flood is deemed an act of God, i.e. “freak” weather events. (33 U.S.C. Section 703c). Yet, if the Army manages its reservoirs for purposes unrelated to flood control and then causes flood damages, the Army is liable for damages, i.e. managing the reservoirs to ensure water for the navigation channel or for downstream municipalities (Central Green Co. v. United States, 531 U.S.C., 2001).

The Army’s obvious attempt to avoid liability raises another disturbing question. Why aren’t the basin’s elected representatives standing up for their constituents and insisting that either the federal government, or the corporate interests behind some of the Army’s recent decisions, compensate the thousands of individuals who suffered financial losses in the flood?

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