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Proposed 401 water quality certification of the Corps shallow water habitat chute project at Jameson Island

— January 18, 2013 —

Dear Friends:

According to the agenda for their January 9, 2013 meeting, the Missouri Clean Water Commission was to consider approval of Missouri’s proposed 401 water quality certification of the Corps shallow water habitat chute project at Jameson Island (near Rocheport, MO). The proposal had been open for public comment for the month of December. The point of contention centers on what the Corps would do with the soil removed to create the chute. The Corps wants to dump the soil directly into the Missouri River. Those opposed to the dumping believe the soil dumping violates the Clean Water Act, is unfair to citizens in Missouri in that citizens may not dump soil into the river and it will create an additional burden to remove the soil from Missouri’s water treatment plants. Further, the high phosphorus levels (600 to 900 ppm) in that soil will cause increased hypoxia in the Gulf. The Corps has stated the total amount of soil to be dumped into the Missouri River for all the shallow habitat projects is over 90,000 acres, which is equivalent to 150 square miles of soil 5 feet deep.

I was not able to attend but I have watched the video of the January 9 Clean Water Commission meeting carefully. My son and law partner, Bob Perry did attend and made a brief statement. The actions taken pose some interesting legal questions, but I don’t think that they are as difficult to determine as they were made out to be at the meeting.

The meeting began with a statement of John Madras, DNR staff director for the Commission, who said that the Department (DNR) was withdrawing their draft certification of the Corps permit at Jameson Island and that the “department would not issue any certification for this project.” John Madras said that it was not a waiver and that the department does not use waivers, that they consciously state that as such, and that is a question for the Corps on how they (the Corps) would view it. The Department did not request any approval of the Commission for the withdrawal.

Immediately after that staff statement, Commissioner Warren made a motion to issue the water quality certification as drafted in their packets for the January 9th meeting with the removal of the first condition. (Removal of that first condition was requested in comments by the Corps during the comment period. The motion then closely resembled what the Corps requested as Alternative #4. The list of conditions in the packet also included some conditions added by the Department and not requested by the Corps.) Commissioner Warren’s motion was seconded by Commissioner Bennett, who later withdrew his second. Commissioner Parnell substituted his second for that of Commissioner Bennett.

After discussion and two votes to call the question, Commissioner Warren’s motion was voted upon by a roll-call vote. Four Commissioners voted against the motion (Commissioners Hunter, Leake, Wood, and Cowherd). Three Commissioners voted in favor of the motion (Commissioners Warren, Bennett, and Parnell). The motion to approve the certification (Corps Alternative #4) was defeated.

While the Department was asking the Corps to determine what the staff action should be termed, the defeat of the Commission motion, a vote on the actual proposed certification (as amended) is a denial of that certification. No permit shall be granted.

Here is what Section 401(a)(1) of the Clean Water Act says:

In any case where a State or interstate agency has no authority to give such a certification, such certification shall be from the Administrator. If the State, interstate agency, or Administrator, as the case may be, fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal application. No license or permit shall be granted until the certification required by this section has been obtained or has been waived as provided in the preceding sentence. No license or permit shall be granted if certification has been denied by the State, interstate agency, or the Administrator, as the case may be.

There was some discussion as to whether the Commission could issue or deny certification. That power is clearly stated in Missouri statutes at Section 644.026 and supported by Missouri caselaw. Further, if the Commission did not have the power to issue or deny certification, why did the Department bring this issue to the Commission for consideration at every Clean Water Commission meeting since May 2012?

What the Commissioners had wrong were their comments implying that the prior Commission members and the Department had been stalling the shallow habit projects for the past five years. I was a participant of the 2007 and 2008 Commission decisions about the dirt dumping and I have closely watched all actions regarding this project since then. We made it abundantly clear to the Corps that our Commission votes, orders, and actions were not intended to stop the projects. We simply wanted the Corps to abide by the same laws, rules, and policies as citizens of Missouri regarding the dumping of soil into the Missouri River. We always maintained that dumping of the soil was not necessary for construction of the projects.

It is possible to save the soil. In the Corps Jameson Island project proposal, the Corps proposed an Alternative #3 in which the soil would not be placed into the Missouri River. That proposal would not violate any laws, including the Corps own statutes regarding what they may place into the River. As a spokesman for Senator Blunt said when advocating for Alternative #3 last June, “Why does the Corps have such a hard time accepting ‘yes’ for an answer?”

The Jameson project can proceed. It is necessary to do so because the Howard County levee is threatened by the way the Jameson Island chute is currently directed at the levee, causing the levee to erode and potentially flood thousands of acres. Zachary White of the Corps stated that the current Jameson chute has no effect on Howard County’s levee. But a few sentences later, he admitted that redirecting the chute would have a positive effect on the levee.

The conflict has never been about proceeding with the projects. However, we are very opposed todumping one hundred and fifty square miles (five feet deep) of Missouri’s finest soil into the Missouri River for no purpose. That is the amount of soil that the Corps said they plan to dump into the Missouri River when they construct all their proposed shallow water habitat projects.

The purpose of 401 certification is for Missouri to certify that the proposed Corps project complies with Missouri water quality standards and requirements of Missouri state law. Since March 2012 when the Corps first sought 401 certification for the Jameson chute extension, the Corps has been trying to make the dirt dumping look legal. No Missouri official has publically stated that the Corps proposed dirt dumping would comply with Missouri’s Clean Water Law. The Department withdrew their proposed certification. The Commission denied certification of Alternative #4.

It is time for the Corps to stop stalling, stop trying to go around the law, and fix the Jameson chute as the Corps promised to do in 2007 to save the Howard County levee. What does the Corps care about: Dumping dirt or completing the chute project?

Kristin M. Perry, J.D.

Former Member of the Missouri Clean Water Commission, 2000-2009

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