The dispute between recreational interests and navigation interests along the Missouri River could be heading to the U.S. Supreme Court.

North Dakota Attorney General Wayne Stenehjem has asked the high court to review a federal appeals court decision that permits the U.S. Army Corps of Engineers to release water from upstream reservoirs to benefit barge traffic downstream.

The case involves a lawsuit the state filed against the corps in 2002, asserting that the corps was unlawfully harming the lake's walleye fishery by lowering the level of Lake Sakakawea during the spring rainbow smelt spawning season. Smelt, the primary food of walleye and other game fish, need a steady lake level to ensure the eggs aren't left high and dry.

The corps appealed to the 8th U.S. Circuit Court of Appeals, which ruled that the corps could continue to draw down the lake.

At issue is the Flood Control Act of 1944. Stenehjem contends the act does not give navigation priority over recreation uses, which is what the appeals court ruled.

"The 8th Circuit was plain wrong when it ruled the Flood Control Act gives navigation priority over recreation," Stenehjem said. His position is the act gives recreation and navigation equal priority.

Stenehjem said the national implications of the case are tremendous.

"It's a dispute between states and involves the federal government as well," he said. "Those are the kinds of things the Supreme Court does tend to be interested in, but the odds are long."

Paul Johnston, a spokesman for the corps in Omaha, Neb., said the courthouse is available for all parties, noting there are lawsuits representing all sides in the river management dispute.

The petition was filed jointly by North Dakota and South Dakota. It likely will be several months before the court rules on whether it will hear the case. If the high court decides to hear the case, briefs and arguments could come late next year, Stenehjem said.

Stenehjem said the deadline for doing anything about the appeals court's ruling is today.

"We had to make a decision, and we had a very good brief," he said.

Charles Carvell, director of the natural resources and Indian affairs division of the attorney general's office, is the chief author of the petition.

"I think we've placed a petition and brief that could cause the Supreme Court to give it serious consideration," Stenehjem said.

S.D. asks for Supreme Court ruling on Missouri

Recreation deserves more consideration, state argues

South Dakota and North Dakota on Tuesday asked the U.S. Supreme Court to order Missouri River managers to give equal weight to recreation and the barge industry when allocating water.

The request to reconsider a court ruling from June is one of a mounting number of legal salvos between upstream and downstream interests.

If the Supreme Court takes the case, the ruling would not come until next fall. A favorable decision could dramatically affect five other lawsuits over the U.S. Army Corps of Engineers' control of flow.

"It would be a major change in the way the corps does business," said South Dakota Attorney General Larry Long. He said the court usually declines such requests, but the state has little to lose if it does.

But Chris Brescia, president of the downstream interest group MARC 2000, said denial of the request could be seen as support for the old ruling, which does not favor South Dakota.

That ruling, by the 8th Circuit Court in June, said the Flood Control Act of 1944 gave priority to navigation and flood control over recreation and other uses of the Missouri River.

That let the corps release water for barges in spring at the expense of rainbow smelt, the main food for walleye on Lake Oahe, and thus the basis of a multi-million dollar recreational fishing industry.

Another case, brought by environmental groups in a different court, led to an order to protect endangered species by holding back water in summer, which the corps said was in conflict with the Flood Control Act.

To resolve the legal tangle, a panel moved the two cases, plus four others, to federal district court in St. Paul.

Now, the Dakotas want to send the 8th Circuit case straight to the Supreme Court. They argue the June ruling was based on an overly broad interpretation of a 1988 Supreme Court decision, and that the Flood Control Act does not prioritize the various uses of the Missouri.

The motion comes now because the state faced a filing deadline, Long said. The court will likely decide whether to take the case in a few months, and if it does, that would probably delay the other river cases.

Complicating the picture is a biological opinion issued Dec. 18, which says the corps must modify flows to help the endangered pallid sturgeon.

"Just prior to the release of this biological opinion, I really thought that we did have an opportunity, and were in the process of crafting a compromise to share water equitably, and now I think that opportunity is gone," Brescia said.

It is not clear if the new move by South and North Dakota will accelerate that resolution.

But if the endangered species ruling stands, more lawsuits are certain, Brescia said.

"We will not agree to a revised master manual that works to the detriment of flood control and navigation, and so it will end up in courts again."

Daniel W. Pinkston, U.S. Department of Justice, Environmental Defense Section, Denver, CO, Cameron W. Hayden, U.S. Attorney's Office, Bismarck, ND, Fred R. Disheroon, U.S. Department of Justice, Environment and Natural Resources, Washington, DC, for defendants.

Clark Jay Bormann, Bormann Law Office, Bismarck, ND, David D. Cookson, Nebraska Atty Gen's Office, Lincoln, NE, John P. Guhin, Attorney General's Office, Pierre, SD, for intervenor.

MEMORANDUM AND ORDER DENYING NORTH DAKOTA'S MOTION FOR A PRELIMINARY INJUNCTION

*1 This case arises out of the management and operation of the Missouri River and its attendant reservoirs. The matter before the Court is the State of North Dakota's Motion for a Preliminary Injunction. North Dakota seeks a preliminary injunction order stating:

that the Corps maintain a minimum cold water habitat in Lake Sakakawea of 200,000 acre-feet through September 30, 2003. The particular way to achieve the minimum 200,000 acre-feet should be left, however, to the Corps' management and discretion.

That a Special Master be appointed by the Court to monitor compliance with the order throughout the summer, and to make recommendations to the Court to address any changes or adjustments that may be needed based on higher or lower flows than anticipated in the Corps' June 1, 2003 forecast, or to address any unanticipated downstream impacts.

On May 7, 2003, the Court extended an Ex Parte Temporary Restraining Order entered on April 29, 2003, by state district court Judge Gail Hagerty. On May 16, 2003, the Court again extended the Ex Parte Temporary Restraining Order until the end of May based on the consent of the Corps of Engineers, modified the Order to allow a maximum daily average release of 21,500 cfs from Garrison Dam, and suspended the requirement that the Corps of Engineers submit a compliance plan by May 19, 2003. On May 29, 2003, the Court granted the Corps of Engineers' Motion to Dissolve the Ex Part Temporary Restraining Order. On June 4, 2003, the Court held a hearing on both North Dakota's and South Dakota's Motions for Preliminary Injunctions, at which the parties submitted additional evidence and the Court heard testimony from several witnesses. The same day, June 4, 2003, the Eighth Circuit released its opinion in South Dakota v. Ubbelohde, 330 F.3d 1014 (8th Cir.2003). [FN1]

FN1. The Eighth Circuit combined several appeals involving the Missouri River and issued one opinion resolving the following cases: State of South Dakota, et al. v. Ubbelohde, et al., No. 01-2133SD; State of South Dakota, et al. v. Ubbelohde, No. 02-2144SD; State of South Dakota, et al. v. Ubbelohde, et al., No. 02-2185SD; State of South Dakota, et al. v. Ubbelohde, et al., No. 02-2178SD; State of Nebraska, et al. v. Ubbelohde, et al., No. 02-2191NE; State of North Dakota, et al. v. Ubbelohde, et al., No. 02-2305ND.

This matter comes before the Court with a complex and lengthy history involving the dispute between the Corps of Engineers and the various Missouri River Basin states regarding the management of the Missouri River.. A more extensive review of the background of the case is set forth in the Court's Orders of May 16, 2003, and May 29, 2003. However, a brief summary is necessary to provide the backdrop to North Dakota's Motion for a Preliminary Injunction. [FN2]

FN2. A Motion for Preliminary Injunction has also been made by South Dakota, and it will be the subject of a separate order.

On February 20, 2003, the North Dakota Department of Health issued a "Notice of Violation" to the Corps of Engineers alleging continuing violations and actions that threatened to violate North Dakota's water quality standards applicable to Garrison Dam and Lake Sakakawea. The Notice of Violation indicated that the North Dakota Department of Health may file suit against the Corps of Engineers. In essence, the Notice of Violation asserted that the Corps' management of Lake Sakakawea constitutes a form of "pollution" under state law which would threaten the lake's cold water fishery by decreasing the lake's water elevation.

The State of North Dakota filed a complaint in state district court on April 29, 2003. In its complaint, the State alleged that the Corps of Engineers violated North Dakota's water quality standards in Lake Sakakawea through its operation of the Garrison Dam. It is alleged in the complaint, and the state district court found in its TRO, that Section 313(a) of the federal Clean Water Act constitutes a waiver of sovereign immunity, thus allowing states to sue federal entities for alleged violations of state water quality standards. See 33 U.S.C. § 1323(a). In essence, the State of North Dakota alleges that the Corps management of water levels in Lake Sakakawea during the summer months will violate North Dakota's water quality standards as it relates to the maintenance of a cold water fishery in Lake Sakakawea.

*2 The State of North Dakota contends that the Corps of Engineers' management of the Missouri River Mainstem Reservoir System, and particularly the management of the release of waters from Garrison Dam, constitutes a form of "pollution" because it is a "man-made or man-induced" change that has altered the physical, chemical, and biological integrity of Lake Sakakawea. According to the State, adherence to the Corps of Engineers' April 1, 2003, and May 1, 2003, projected forecast and its current Annual Operating Plan will result in no cold water fish habitat remaining in Lake Sakakawea by the end of the summer of 2003. However, based on the June 1, 2003, forecast, approximately 173,340 acre-feet of cold water habitat would remain at the end of September 2003. It is undisputed that at the present time, no specific violations of North Dakota law or of water quality regulations have occurred. [FN3]

FN3. Although the State of North Dakota characterizes the Corps' actions as constituting "apparent continuing violations," in its Notice of Violation the State uses language that refers to future violations rather than current violations; for example "will likely cause," "likely to cause," and "will likely occur." At the June 4, 2003, hearing Mike Sauer of the North Dakota Department of Health conceded that the Corps was not currently violating North Dakota water quality standards.

The State of North Dakota is seeking injunctive relief to (1) maintain a minimum cold water habitat in Lake Sakakawea of 200,000 acre-feet through September 30, 2003; and (2) to appoint a Special Master to monitor compliance with the preliminary injunction throughout the summer. North Dakota contends that the survival of the cold water fishery in Lake Sakakawea this summer is dependent upon (1) the average elevation of Lake Sakakawea in May before it stratifies; and (2) the amount that inflow into the lake exceeds outflow during the months of June, July, and August.. The first factor is now moot because the State's initial concern about maintaining the average elevation of Lake Sakakawea in May before it stratified has been addressed. Thus, the issue of whether to grant a preliminary injunction focuses on the amount of inflow and outflow at Lake Sakakawea for the remainder of the summer months.

Since the original filing in North Dakota state district court, the case was removed to federal district court, and the States of Nebraska and South Dakota have been allowed to intervene. To summarize the current litigation, North Dakota seeks injunctive relief that would limit releases from Garrison Dam throughout the summer of 2003. South Dakota wants the Court to order that water elevations in other mainstem reservoirs not be lowered in order to raise the elevation of Lake Sakakawea and specifically wants to prevent the lowering of water elevations in Lake Oahe. The State of Nebraska wants the Corps of Engineers to comply with the 2003 Annual Operating Plan forecast which means drawing down the water levels from the upper reservoirs throughout the summer to support the Endangered Species Act, navigation, and other downstream needs. The diverse interests of the states and their needs for adequate water levels in the Missouri River and its reservoirs come at a time when this region of the country is experiencing its fourth year of drought conditions.

*3 When considering a motion for a preliminary injunction, a district court weighs the movant's probability of success on the merits, the threat of irreparable harm to the movant absent the injunction, the balance between harm and the injury that the injunction's issuance would inflict on other interested parties, and the public interest. Dataphase Systems, Inc. v. C.L. Sys, Inc., 640 F.2d 108, 114 (8th Cir.1981) (en banc ). We reverse the issuance of a preliminary injunction only if the issuance "is the product of an abuse of discretion or misplaced reliance on an erroneous legal premise." City of Timberlake v. Cheyenne River Sioux Tribe, 10 F.3d 554, 556 (8th Cir.1993) cert. denied 512 U.S. 1236, 114 S.Ct. 2741, 129 L.Ed.2d 861 (1994).

To succeed on the merits, North Dakota must clear several hurdles including issues pertaining to the availability of judicial review, sovereign immunity, and the application of water quality standards.

In prior litigation between various Missouri River Basin states and the Corp of Engineers, the Corps has argued that federal district courts lacked jurisdiction to review management decisions of the Corps because these decision were "committed to agency discretion by law" under 5 U.S.C. § 701(a)(2). See e.g., Brief of Appellant, p. 23, State of North Dakota v. Ubbelohde, No. 02- 2305. This very issue was recently resolved by the Eighth Circuit Court of Appeals in the case of South Dakota v. Ubbelohde, 330 F.3d 1014 (8th Cir.2003), a decision issued on June 4, 2003.

In South Dakota v. Ubbelohde, the Eighth Circuit directly addressed the issue of whether the Corps of Engineers' actions are subject to judicial review. The Eighth Circuit rejected the Corps of Engineers' argument that its actions are not subject to judicial review and held that the Corps' actions are constrained both by the Flood Control Act of 1944 and the Master Manual. 330 F.3d 1014, 1027-1029. The Eighth Circuit concluded that courts could (1) review the Corps of Engineers' compliance with the Flood Control Act which mandates the Corps must consider the various interests (flood control, navigation, recreations, and other interests) before making a decision, and (2) review the Corps' compliance with the Master Manual which directs the operation of the Missouri River.

*4 Here, the State of North Dakota's claim is based on a different theory and body of law than its previous claim, although the relief the State seeks appears to be nearly identical. North Dakota's current claim is based on the Corps' alleged violation of the federal Clean Water Act and North Dakota water quality standards rather than on the Corps' alleged violation of the Flood Control Act or the Master Manual. Thus, although it provides substantial guidance, the South Dakota v. Ubbelohde decision is not dispositive as to the issue of availability of judicial review.

FN4. The contrary conclusion was reached by a Pennsylvania district court when environmental groups sought to force the Corps to comply with the Water Resources Development Act of 1990, which set forth the general directive that "environmental protection [shall be included] as one of the primary missions of the Corps of Engineers in planning, designing, constructing, operating, and maintaining water resources projects." See Raymond Proffit Foundation v. U.S. Army Corps of Engineers, 175 F.Supp.2d 755, (E.D.Penn.2001) (holding that because "[t]he text of § 2316 provides only a general statement that established environmental protection as one of the Corps' primary missions [and ] gives no guidance on how this mission is to be carried out ... § 2316 falls under the § 701(a) exception for cases where 'agency action is committed to agency discretion by law' [and thus, is not capable of review by a court]").

The next hurdle the State of North Dakota must clear involves the Corps of Engineers' claim of sovereign immunity. North Dakota argues that Section 313 of the Clean Water Act [33 U.S.C. § 1323] constitutes a waiver of sovereign immunity. Section 313 of the Clean Water Act provides, as follows:

(a) Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants, and each officer, agent or employee thereof in the performance of his official duties, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable service charges.

For additional support, North Dakota cites to National Wildlife Federation v. United States Army Corps of Engineers, 92 F.Supp.2d 1072, 1081 (D.Or.2000), where the court found that "[u]nder the Clean Water Act, all federal agencies must comply with state water quality standards" and to Executive Order 12088, 43 Fed.Reg. 27,707 (Oct. 12, 1978), where President Carter ordered executive agencies to comply with the Clean Water Act as well as other federal environmental standards.

North Dakota also refers the Court to the legislative history of Section 313 of the Clean Water Act. The Clean Water Act was amended in 1977 in response to an Eighth Circuit decision, Minnesota v. Hoffman, 543 F.2d 1198 (8th Cir.1976), cert. denied, 430 U.S. 977 (1977), which held that the Corps of Engineers was exempt from Sections 313 and 404 of the Clean Water Act when conducting dredging activities. A portion of the Clean Water Act's legislative history states:

*5 The act has been amended to indicate unequivocally that all Federal facilities and activities are subject to all of the provisions of State and local pollution laws. Though this was the intent of Congress in passing the 1972 Federal Water Pollution Control Act Amendments, the Supreme Court, encouraged by Federal agencies, has misconstrued the original intent.

Since the substantive requirements of the act and of State and local law would be unenforceable unless procedural provision were also met, section 313 is amended to specify that, as in the case of air pollution, a Federal facility is subject to any Federal, State, and local requirement respecting the control or abatement of water pollution, both substantive and procedural, to the same extent as any person is subject to these requirements. This includes, but is not limited to, requirements to obtain operating and construction permits, reporting and monitoring requirements, any provisions for injunctive relief and such sanctions imposed by a court to enforce such relief, and the payment of reasonable service charges....

The amendment to section 404 clarifies the intent of Congress relative to the dredging activities of the U.S. Army Corps of Engineers to maintain navigation on the Nation's waterways is in the national interest. However, Corps dredging activities, like any municipal or industrial discharge to the Nation's waters, or any private dredging activities, should be conducted in compliance with applicable State water quality standards. The Corps, like other Federal agencies, should be bound by the same requirements as any other discharger into public waters.

By this amendment, the committee clarifies that Corps dredging activities are not exempt from State pollution abatement requirements. In spite of language in section 313 in the Senate report on the 1972 act, that "requires every Federal agency with control over any activity or real property, to provide national leadership in the control of water pollution in such operations", the Supreme Court ruling in the Minnesota case would otherwise free corps-conducted dredging from compliance with State water quality standards. The intention of the 1972 act was not to exempt the Corps or any other public or private agency from State water quality standards and the interpretation of section 404 by the courts is at variance with the intent of Congress....

This amendment to section 404 is neither intended nor expected to result in compromising the ability of the Corps to maintain navigation. The States that have taken administrative and judicial action to seek Corps compliance with water quality standards have a comparable interest in the movement of commerce on waterways maintained by corps dredging. The committee expects that such States will act both to insure compliance with water quality standards and continued corps dredging activities.

S.Rep. No. 95-370, at 68-69 (1977), reprinted in 1977 U.S.C.C .A.N. 4326, 4393. North Dakota argues that Section 313 when read in conjunction with the 1977 amendments, shows that the Corps of Engineers must comply with state water quality standards. Finally, North Dakota contends that the Corps should be able to operate the Missouri River Mainstem Reservoir System in a manner that complies with both the Clean Water Act and the Master Manual.

*6 The Corps of Engineers argues that the waiver of sovereign immunity set forth in Section 313 is not a complete waiver and specifically points to Section 511 [33 U.S.C. § 1371] which provides as follows:

(1) limiting the authority or functions of any officer or agency of the

United States

under any other law or regulation not inconsistent with this chapter;

(B) under the Act of March 3, 1899 (30 Stat. 1122); except that any permit issued under section 1344 of this title shall be conclusive as to the effect on water quality of any discharge resulting from any activity subject to section 403 of this title, or

(emphasis added). The Corps of Engineers asserts that an injunction precluding necessary releases of water would not be sufficient to provide minimum service to navigation. The Corps also characterizes the current situation as the precise type of fact pattern that Section 511 was enacted to address. The Corps acknowledges that its obligation to "maintain navigation" does not always trump the Clean Water Act. However, the Corps contends that when it is faced with what it calls an "either-or-situation," the Corps ability to maintain navigation is not subject to state water quality standards.

The Corps of Engineers also contends that the Eighth Circuit decision in State of Missouri ex rel. Ashcroft v. Dep't of the Army, 672 F.2d 1297 (8th Cir.1982) bars North Dakota's claims. In the Missouri case, the plaintiffs argued that the Corps was discharging pollutants into the Sac River through its construction and operation of a dam and power generator, and that this constituted a violation of the Clean Water Act and Missouri state water quality laws. The Eighth Circuit held that the federal Clean Water Act "subjects the Corps of Engineers to state water quality laws only if it were causing 'the discharge or runoff of pollutants.' " Id. at 1304. Although the Missouri decision may be helpful to the Corps' other arguments, the decision did not touch on issues of sovereign immunity and does not bolster the Corps' sovereign immunity argument.

While there is no question that Section 313 of the Clean Water Act [33 U.S.C. § 1323] constitutes a partial waiver of sovereign immunity, there is also no question that Section 511 [33 U.S.C. § 1371] provides sovereign immunity protection for the Corps of Engineers when compliance with the Clean Water Act may "affect or impair" the authority of the Corps of Engineers to "maintain navigation." Thus, the issue becomes whether compliance with North Dakota's water quality standards would "affect or impair" the Corps of Engineers' ability to maintain navigation. [FN5] Even though the Corps has not specified how or why the relief North Dakota seeks would "affect or impair" the Corps' ability to "maintain navigation," the fact that the Corps of Engineers may be able to successfully argue it is immune from suit is a factor which weighs heavily against North Dakota's probability of success on the merits. This finding is further supported by the recent pronouncement of the Eighth Circuit Court of Appeals in South Dakota v. Ubbelohde.

*7 North Dakota's complaint alleges that the Corps of Engineers Annual Operating Plan (AOP) for 2003 creates violations of North Dakota's water quality laws. North Dakota's ability to enact and enforce water quality standards is outlined by the Federal Water and Pollution Control Act.

The Federal Water and Pollution Control Act, commonly referred to as the Clean Water Act, 33 U.S.C. § 1251 et. seq. was designed to "restore and maintain the chemical, physical, and biological integrity of the nation's waters." 33 U.S.C. § 1251(a). The Clean Water Act provides for two primary sets of water quality measures: effluent limitations, found in 33 U.S.C. § 1311, and water quality standards, found in 33 U.S.C. § 1313.

The effluent limitations section focuses on the control of individual discharges from "point sources" into the navigable waters. A "point source" is defined as "any discernable, confined, and discrete conveyance" such as a pipe, ditch, or conduit from which "pollutants" may be discharged in navigable waters. See 33 U.S.C. § 1362(14). The Clean Water Act provides that the discharge of any "pollutant" by any person shall be unlawful. The term "pollutant" is defined as "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water." See 33 U.S.C. § 1362(6). The term "pollution" as opposed to "pollutant" has a broader definition under federal law and means the "man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of the water." See 33 U.S.C. § 1362(19). The courts have determined that the release of water from dams does not equate with the addition of "pollutants" to navigable waters. See National Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C.Cir.1982); Missouri ex rel. Ashcroft v. Dept. of the Army, 672 F.2d 1297, 1303-1304 (8th Cir.1982).. However, few courts have tackled the issue of whether the operation of dams may create "pollution."

North Dakota has not alleged that the Corps of Engineers is discharging pollutants into the Missouri River in violation of Sections 301 [33 U.S.C. § 1311] and 402 [33 U.S.C. § 1342] of the Clean Water Act. In fact, North Dakota has specifically stated that its cause of action does not arise under the Clean Water Act's permitting system, which regulates the discharge of pollutants into navigable waters. See 33 U.S.C. § § 1311, 1342. Although previous decisions regarding the Corps of Engineers activities as it relates to the discharge of pollutants may be somewhat analogous to North Dakota's claims, they do not resolve the question of whether the Corps of Engineers is subject to state water quality standards under Section 303 of the Clean Water Act which regulates pollution rather than the discharge of pollutants. See e.g., State of Missouri ex rel. Ashcroft v. Dep't of the Army, 672 F.2d 1297 (8th Cir.1982) (holding discharges from dams could not be classified as the runoff of a pollutant); National Wildlife Federation v. Gorsuch, 693 F.2d. 156 (D.C.Cir.1982) (holding dam-induced water quality changes do not constitute "discharge of a pollutant" under 33 U.S.C. § 1362(12)).

*8 Under Section 303, the Clean Water Act directs each state to establish its own water quality standards subject to the procedures set forth in federal statutes and regulations. See 33 U.S.C. § 1313. State water quality standards must contain three elements, (1) designated uses, (2) numeric or narrative water quality criteria, and (3) antidegradation rules. 40 C.F.R. § 131.6(a), 136.11(a)(1), 131.11(b)(1) and (b)(2), 131.6(d), 131.12. There is no mechanism in the Clean Water Act for the enforcement of water quality standards adopted by the states; rather the enforcement is left to the states.

On March 27, 2003, North Dakota Governor John Hoeven signed an emergency bill amending North Dakota's water quality statute which enabled this action to be brought by the State. Section 61-28-06(1) of the North Dakota Century Code as amended states in relevant part as follows:

a. To cause pollution of any waters of the state or to place or cause to be placed any wastes in a location where they are likely to cause pollution of any waters of the state; and

b. To discharge any wastes into any waters of the state or to otherwise cause pollution which reduces the quality of such waters below the water quality standards established therefor by the department.

3. Notwithstanding any other provisions of this chapter, and except as in compliance with the provisions of this chapter, and any rules and regulations promulgated hereunder, the discharge of any wastes or the violation of any water quality standards, by any person shall be unlawful. The department may seek injunctive relief for a threatened or continuing violation of a water quality standard, including any violations of the narrative standards, if the department determines that the violation will substantially interfere with or cause or threaten to cause long-term or irreparable harm to waters of this state that the department determines has statewide or regional significance or has a substantial impact to a local community. The authority to seek injunctive relief for a violation of the water quality standards, including violations of the narrative standards, is limited to the department, after obtaining written approval of the governor, and may not be enforced by any other person.

N.D.C.C. § 61-28-06(3) (amending language underlined). "Person" is defined in the statute to include "any state or federal agency or entity responsible for managing a state or federal facility." N.D.C.C. § 61-28-02(5). "Pollution" is defined as "the manmade or man-induced alteration of the physical, chemical, biological, or radiological integrity of any waters of the state." N.D.C.C. § 61-28-02(7). This is virtually the same definition of "pollution" found in the federal Clean Water Act. North Dakota's regulatory schemes are also similar to the anti-pollution laws and regulations of each of the states that border the Missouri River.

FN6. The concept that state water quality standards should apply to the activities of the Corps of Engineers was noted in National Wildlife Federation v. Gorsuch, 693 F.2d 156, 182 (D.C.Cir.1982), where the court stated that statewide water quality plan may be the better regulatory tool to address "dam-caused pollution." The court also noted that new dams cannot be built unless they comply with state water quality standards and cited to an example in South Carolina where the Corps of Engineers agreed to meet state water quality standards and include a method to remedy anticipated low dissolved oxygen problems in its construction plan for a new dam. Id. at 183 n. 78.

In National Wildlife Federation, various environmental groups from Oregon and Washington filed suit against the Corps of Engineers alleging that the actions of the Corps in operating four dams on the Lower Snake River violated the Clean Water Act. The Lower Snake River runs through the southeast corner of the State of Washington, and empties into the Columbia River near Kennewick, Washington. The Corps of Engineers owns and operates four power projects and dams--Ice Harbor, Lower Monumental, Little Goose, and Lower Granite--as part of the Federal Columbia River Power System. National Wildlife Federation v. United States Army Corps of Engineers, 92 F.Supp.2d 1072, 1074 (D.Or.2000).. The plaintiffs alleged that the water quality standard violations constituted "serious, long-standing, and ongoing violations of federal law that have degraded water quality, impaired beneficial uses, and pushed imperiled salmon and steelhead species to the brink of extinction." Id. The Corps responded by arguing that (1) it attempted to comply with state water quality standards, (2) its decisions regarding compliance with water quality standards were reasonable, and (3) any temperature exceedences were not caused by the Corps of Engineers' operation of the dams, but rather were caused by the fact that the dams existed. 132 F.Supp.2d 876, 888-92.

The court stated it must determine whether the actions of the Corps of Engineers were arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. 132 F.Supp.2d 876, 878-79.. "In determining whether the Corps' decision ... regarding the operation of the dams were arbitrary and capricious, the court must 'consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.' " Id. at 879. The court reviewed portions of the administrative record available and found that it was "not possible to conclude that the Corps complied with its legal obligations under the Clean Water Act when it made the decisions ... based upon a review of the decisions themselves." Id. at 890.

*10 The court rejected an argument by the Corps of Engineers that it was not able to comply with Washington water quality standards because of the Endangered Species Act and stated "the Endangered Species Act and the Clean Water Act 'should be read together, so that compliance with one statute does not come at the expense of the other.' " Id. at 891. The court ultimately found that the Corps had not complied with its legal obligations under the Clean Water Act because it had not considered all the relevant factors. Id. at 895. The court concluded by stating that since the claim was not an enforcement action under the Clean Water Act, the proper remedy was to remand the matter back to the agency for additional investigation and explanation. Id. at 895.

North Dakota's claims are similar to those asserted by the plaintiffs in National Wildlife Federation. North Dakota asserts that the Corps of Engineers must comply with the Clean Water Act and state water quality standards. Just as in National Wildlife Federation, North Dakota contends the Corps of Engineers' management decisions have resulted in alleged violations of North Dakota water quality standards. At the outset, it appears the National Wildlife Federation decision would support North Dakota's motion for a preliminary injunction, but a closer look reveals that North Dakota has failed to set forth a case that is likely to succeed on the merits.

Although this action is in the early stages of litigation, North Dakota has not attempted to show whether the Corps of Engineers sought to comply with the Clean Water Act and state water quality standards or whether the Corps of Engineers considered the effect its 2003 Annual Operating Plan would have on the Clean Water Act and state water quality standards. Instead, North Dakota has alleged future violations of the Clean Water Act and state water quality standards. North Dakota's failure to show either how the Corps of Engineers failed to "consider the relevant factors" when making its operational decisions for 2003 or how the Corps of Engineers is currently in violation of the Clean Water Act or state water quality standards weighs against its success on the merits because North Dakota has not set forth sufficient evidence to show the Corps of Engineers acted in an arbitrary or capricious manner--the standard for such an action.

In addition, the enforcement of North Dakota's water quality standards cannot be considered in a vacuum. One significant difference between the National Wildlife Federation case and the current litigation is that the National Wildlife Federation case involved a series of dams which were all located in the same state, thus requiring the enforcement of only one set of water quality standards. In the present action, when the Corps of Engineers allegedly causes violations of North Dakota's water quality standards, and water levels are held back to protect the cold water fishery and the biological integrity of Lake Sakakawea, then other downstream states may assert similar violations of their respective water quality standards. Nebraska and South Dakota have already intervened in this action to protect their own interests, which to this point have not proven to be completely congruent with North Dakota's. Thus, the complexity of the issues present in North Dakota's claim to enforce its water quality standards appears to lessen the probability of North Dakota's success on the merits.

*11 Finally, the Corps of Engineers asserts North Dakota has not properly promulgated the standards it has used to calculate the harm to Lake Sakakawea's cold water fishery--namely the use of a 15 degree Celsius and 5 milligrams per liter of dissolved oxygen criteria in calculating the size of the cold water fish habitat. The Corps contends that the 800,000 acre-feet long-term harm threshold and the 200,000 acre-feet irreversible harm threshold advanced by North Dakota are not based on administratively established criteria and do not constitute requirements within the meaning of Section 313(a) of the Clean Water Act. The Corps contends that North Dakota has not adopted the specific temperature and dissolved oxygen levels it used to calculate the 800,000 and 200,000 acre-feet thresholds. As a result, the Corps argues that it had no way of knowing that its operations could potentially violate North Dakota water quality standards.

North Dakota responds by stating that Lake Sakakawea is classified as a Class 1 Lake under North Dakota Administrative Code provisions. N.D. Admin. Code § 33-16-02.1, App. II. The characteristics of a Class 1 Lake include "waters capable of supporting growth of salmonid fishes and associated aquatic biota" and "cold water fishery." N.D. Admin. Code § 33-16-02.1-09(1)(f). North Dakota correctly asserts that narrative standards are just as enforceable as numeric standards and cites to PUD No. 1 of Jefferson County v. Washington Dep't of Ecology, 511 U.S. 700, 716 (1994).. North Dakota also contends it is absurd for the Corps to argue that it had no knowledge that a cold water fishery thrives at water temperatures below 15 degrees Celsius with a dissolved oxygen content of 5 milligrams per liter. North Dakota submitted several Corps publications discussing precisely such parameters for a cold water fishery.

The Court acknowledges that there are some questions surrounding the sufficiency of North Dakota's published water quality standards, including whether the Corps received proper notice of what North Dakota considered the specific numeric standards necessary for "waters capable of supporting growth of salmonid fishes and associated aquatic biota." However, the Corps of Engineers' argument that it had no idea what the parameters are necessary to sustain a cold water fishery is not credible. Clearly, the Corps of Engineers knew that a cold water fishery needs a water temperature of somewhere between 15 to 20 degrees Celsius and a dissolved oxygen content of near 5 miligrams per liter--the Corps itself has published materials referencing such standards. What is not clear is whether the Corps attempted to comply with North Dakota water quality standards or whether the Corps even considered North Dakota's water quality standards when deciding how to operate the Missouri River Mainstem Reservoir System. Again, the uncertainty surrounding such issues does not weigh in North Dakota's favor when considering its success on the merits of the underlying action.

*12 In summary, North Dakota's probability of success on the merits appears unlikely. Although some of the jurisdictional issues raised in prior Missouri River litigation have been resolved by the recent Eighth Circuit opinion, the issue of sovereign immunity looms large in this case. To be successful on its claim that the Corps of Engineers violated the Clean Water Act, North Dakota must show that the Corps acted in an "arbitrary and capricious" manner when deciding how to operate the Missouri River Mainstem Reservoir System. Although the Corps of Engineers has been held liable for non-compliance with state water quality laws in one other reported decision, the courts have yet to see one state along a major river system comprised of several dams and reservoirs spread over many states succeed in a state water quality standards enforcement action. The Court finds that this particular Dataphase factor, i.e. "the likelihood of success on the merits," does not weigh in North Dakota's favor.

The State of North Dakota alleges that the Corps of Engineers management of water levels in Lake Sakakawea during the next several months will violate North Dakota's water quality standards and harm the cold water fishery in Lake Sakakawea. According to North Dakota, adherence to the Corps of Engineers' April 1, 2003, projected forecast and its current Annual Operating Plan will result in no cold water fish habitat remaining in Lake Sakakawea by the end of the summer of 2003.

North Dakota contends that if the volume of cold water fish habitat in Lake Sakakawea falls below 800,000 acre feet, the Corps of Engineers would violate North Dakota's water quality standards. North Dakota also argues that if the volume of the cold water fish habitat in lake Sakakawea falls below 200,000 acre feet the survival of the cold water fishery is threatened. North Dakota acknowledges that "this does not mean that a major coldwater fishery die-off will occur at 200,000 acre-feet, but it is possible, and the possibility grows as the volume of cold water fish habitat continues to fall below this level." North Dakota suggests that by maintaining 200,000 acre-feet of cold water habitat, the irreparable harm North Dakota will suffer would be avoided. North Dakota also submits that this remedy could be achieved with adequate support for all system uses except navigation.

The Corps of Engineers responds by contending that none of the plaintiffs have made any factual showing of an actual violation of a water quality standard. Thus, the Corps argues that it is inappropriate to provide injunctive relief before a violation of any water quality standards has been established. The Corps of Engineers concludes by noting that increased precipitation or other events could lead to a situation in which North Dakota could concede that its water quality standards have not been violated.

As the Eighth Circuit Court of Appeals noted last month in South Dakota v. Ubbelohde, and this Court specifically finds, all sides to this dispute seem to agree that each of the states can show that they will suffer irreparable harm absent the injunctions sought. It has become clear that protecting one state's interests from irreparable harm appears to ensure another state's interests will suffer irreparable harm. Nevertheless, North Dakota has shown it will suffer the threat of irreparable harm, and the Court finds that this Dataphase factor weighs in North Dakota's favor.

*13 For purposes of this case where all of the parties are governmental entities, the balancing of harms between the parties and the consideration of the public interest are essentially the same and will be discussed together. North Dakota, South Dakota, Nebraska, and the Corps of Engineers have provided the Court with extensive evidence and documentation showing the varying interests each has in the Missouri River.. Each is summarized below.

Garrison Dam was completed in 1954 and is the largest dam in the mainstem system. Lake Sakakawea is the reservoir created by Garrison Dam. Garrison Dam has a storage capacity of 23.8 million acre feet (MAF), or approximately 33% of the total storage of the Missouri River Mainstem Reservoir System, 1,300 miles of shoreline, and is approximately 178 miles long. Lake Oahe, which extends into North Dakota from a dam located in South Dakota, has a storage capacity of approximately 23.1 million acre-feet of water, or approximately 31% of the total storage capacity of the Mainstem Reservoir.

North Dakota surrendered 550,000 acres of land for the construction of Garrison Dam and Lake Sakakawea. In return, North Dakota was promised hydro- electric power, most of which goes out of state, water for irrigation, which has gone largely unfunded by Congress, and the Garrison Diversion Project, which was scrapped. As one writer has noted, the "consolation prize" North Dakota received was a world class sport fishery. Brian Morris, Unanswered Prayers: The Upper Missouri River Basin States Take on the U.S. Army Corps of Engineers, 68 N.D. L.Rev. 897 (1992). This sport fishing industry was largely developed through the fish stocking efforts of the North Dakota Game and Fish Department. Garrison Dam National Fish Hatchery located at the base of the dam is the largest walleye and northern pike producing facility in the world.

The State of North Dakota contends that the Corps of Engineers has continually favored a dwindling downstream navigation industry over the growing upstream recreational industry, which in turn has threatened North Dakota's fishery. North Dakota officials contend that the economic benefits of downstream navigation have a value of $1-2 million as compared to a $65 million fishing and tourism industry upstream in North Dakota. (Docket No. 2, Schultz Aff., at 2-3). The economic value of Lake Sakakawea as a fishery alone is calculated to be at least $23 million a year. (Docket No. 2, Hendrickson Aff., at 2)

In 2000, 750,000 walleye were caught and 500,000 were harvested from Lake Sakakawea. Lake Sakakawea's salmon fishery generated approximately 95,600 angler hours and a catch of 17,600 salmon in 2000. (Docket No. 17, Power Aff., at 3; Docket No. 2, Lee Aff., at 2). The salmon fishery is the only source of disease free salmon in North America. North Dakota argues that if this salmon fishery is lost it would be impossible to replace. (Docket No. 2, Lee Aff., at 2). Three state parks located near the shores of Lake Sakakawea hosted 494,000 visitors in 2000. (Docket No. 2, Testimony of North Dakota Governor John Hoven, October 23, 2002, hearing before the Corps of Engineers). A crash in the fish population is expected to result in a 73% decrease in anglers which correspond to a $17.3 million yearly economic loss until the fishery can be restored. (Docket No. 2, Schultz Aff., at 6).

*14 South Dakota's interests and its position in this litigation are very similar to North Dakota's. South Dakota maintains that the Corps manages the Missouri River in a fashion that favors navigation at the expense of upstream fisheries. South Dakota attacks the barge industry by alleging that it operates at only 12.5% of 1939 predictions. South Dakota also points out, as did North Dakota, that the barge industry is responsible for only $1-2 million in yearly economic production. (Docket No. 40, Exhibit L, Testimony of Dr. C. Phillip Baumel).

South Dakota's reservoirs are also nationally recognized walleye fisheries. Recreational fishing on these lakes and the Missouri River in South Dakota generate up to $51 million in revenue each year. (Docket No. 26, Cooper Aff., at 4). The favoring of navigation has severely impacted Lake Oahe. Lake Oahe generates $20 million a year in revenues when lake levels are normal. (Docket No. 26, Cooper Aff., at 3). In 2000, Lake Oahe generated only $8.2 million in revenues. (Docket No. 26, Cooper Aff., at 7). The Corps drew down Lakes Oahe in 2002 and as a result 50% of the smelt eggs were lost. With few forage fish available the walleye population in Lake Oahe has declined and average catch weights have dropped markedly. (Docket No. 27, Nelson-Stastny Aff., at 12). Lakes Sharpe, Francis Case, and Lewis and Clark are threatened with a similar fate if the Corps continues its current management policies and the drought persists. (Docket No. 27, Nelson-Stastny Aff., at 14).

The State of Nebraska has also asserted it has a number of industries that will be seriously impacted by reduced water flows in the Missouri River this summer. These industries are estimated to provide over $424 million annual economic benefit to Nebraska. (Docket Nos. 45 and 46 Appendices, Wade Aff., at 340-43). In their pleadings on file in this dispute, Nebraska contends it has power plants that rely on the Missouri River to operate within federal standards, and unless water is available at certain minimum levels, four nuclear power plants may not be able to operate. (Docket No. 11, Patterson, Aff., at 4-5). Nebraska also argues there will be significant harm to the water supplies of municipalities and a resulting increase in treatment costs with reduced flows. Nebraska has a vibrant fishing and recreational industry which will be impacted by reduced flows this summer. (Docket No. 11, Patterson Aff.., at 6). Nebraska contends there will be reduced economic activity associated with low flow conditions that may result in lost tax revenues in excess of millions of dollars. Nebraska has its own regulatory schemes for water quality and anti-pollution laws and regulations and with diminished water flows, there will be an increase in water temperature which will alter the chemical and biological characteristics of the water with resulting violations of Nebraska's laws and regulatory schemes. (Docket No. 9, Esseks Aff., at 2- 3). The City of Omaha relies on the Missouri River for water and recreation, as do other large cities in bordering Iowa and Missouri. Finally, Nebraska states there are 71 recreational areas located between Sioux City, Iowa, and the mouth of the Missouri River that will be significantly impacted by reduced flows this summer. (Docket No. 11, Patterson Aff., at 6).

*15 The Corps of Engineers argues its interests are similar to the public interest. The Corps asserts that the public interest is best met if the Missouri River Mainstem Reservoir System is operated in accordance with a considered and carefully developed plan. The Corps dismisses the interests of each states as "parochial."

Just as the irreparable harm analysis revealed, each state has significant economic, environmental, and recreational interests in the Missouri River.. For each compelling argument advanced by a particular state, there is an equally compelling argument presented by another state. As the Court has stated before, this matter cannot simply be resolved by tallying the alleged economic impact and favoring the state with the largest investment. Because of the complexity of each state's interests, no state's interests clearly outweigh the others. The Court finds the Dataphase factors of balancing the parties interests and consideration of the public interest do not weigh in favor of any particular party to this litigation.

This Court is very cognizant of the importance of Lake Sakakawea to the State of North Dakota, and particularly the importance to the fishing, recreation, and tourism industries. Garrison Dam, Lake Sakakawea, and the Missouri River are of vital importance to the State of North Dakota. Unfortunately, Mother Nature has not been kind and we are now experiencing the fourth year of a significant drought in the Missouri River Basin. Hopefully, the last month of rain, combined with increased snow melt from the mountains in Montana, signals an end to the drought. The sharply divergent interests of the many states that are affected by the Corps of Engineers' plans for operation of the Missouri River Mainstem Reservoir System have again resulted in a multitude of lawsuits filed in federal courts throughout the region.

The operation of the Missouri River Mainstem Reservoir System is a complex task. The Corps of Engineers is charged with the responsibility of managing the river and its attendant reservoirs. The Corps must attempt to strike a balance among many interests, including flood control, navigation, and recreation. As the Eighth Circuit recently noted, during the good times the Corps of Engineers can accommodate all such interests, but in drought conditions, the Corps is forced to make difficult choices. Those hard choices have led to, and will continue to lead to, litigation seeking injunctions by the states which border the Missouri River from Montana to Missouri.

The operation of the Missouri River is significantly effected by natural forces as well as by the Corps of Engineers in the manipulations of the available water. The recent pronouncement from the Eighth Circuit makes it expressly clear that the Corps is required to follow the Master Manual and its Annual Operating Plan. The Corps is not free to ignore the Master Manual and federal courts can review the Corps of Engineers' actions to ensure conformity with the Master Manual. Thus, the Eighth Circuit has established a standard for the activities and operations of the Corps of Engineers in operating the Missouri River Mainstem Reservoir System that this Court is obligated to follow.

*16 The June 4, 2003, decision of the Eighth Circuit in South Dakota v. Ubbelohde, 330 F.3d 1014 (8th Cir.2003) seems to refute the notion that North Dakota's water quality standards should control the management and operations on the Missouri River.. The Eighth Circuit has granted considerable discretion to the Corps and this Court is reluctant to interfere with the exercise of that discretion at this stage of the litigation. The Eighth Circuit's position of giving deference to the Corps' actions is revealed in the following language from the decision issued on June 4, 2003:

Courts are simply not empowered to review every decision of the Corps to ensure that it maximizes the benefits of the River for all interests. Indeed, such a standard would be impossible to meet, anyway. In times of drought it is not possible for both navigation and fishery benefits to be maximized. Something has to give.

The testimony presented at the hearing on June 4, 2003, revealed that the latest forecasts project that the levels on Lake Sakakawea are expected to remain fairly constant throughout the summer due to increased precipitation and favorable conditions for runoff. In the event that such conditions change and the Corps of Engineers alters its operational plans for 2003, this Court may be forced to intervene. In the event that other court orders entered in other federal or state jurisdictions strip the Corps of Engineers of its ability to objectively function as a steward of the Missouri River water flows, and the interests of upstream water users are placed in harms way, this Court will be forced to intervene. However, after carefully considering the equitable factors that this Court is required to consider in ruling on North Dakota's Motion for Preliminary Injunction, the Court does not believe that a preliminary injunction is warranted at this stage of the litigation. The granting of a preliminary injunction is an extraordinary remedy and the right to such relief must be clearly established by the movant. It has not been clearly established in this case.

Although the irreparable harm factor weighs in North Dakota's favor, and the balance-of-harms and public interest criteria present close questions, the dispositive factor is the likelihood of success of the merits. This issue weighs against North Dakota based on the likelihood that the Corps of Engineers will be able to successfully argue it is immune from suit under Section 511 [33 U.S.C. § 1371] of the Clean Water Act. This factor also weighs against North Dakota as a result of the June 4, 2003, decision of the Eighth Circuit Court of Appeals in South Dakota v. Ubbelhode, 330 F.3d 1014 (8th Cir.2003). North Dakota is not entitled to a preliminary injunction at this state of the litigation.

The State of North Dakota's Motion for a Preliminary Injunction is DENIED. (Docket No. 2).

PIERRE, S.D. - South Dakota, North Dakota and Montana lost a round Wednesday in their legal battle to have the Missouri River managed to better protect fishing and other recreation in upstream reservoirs.

A federal appeals panel ruled that federal district judges were wrong last year to order the U.S. Army Corps of Engineers to maintain water levels on some reservoirs in South Dakota and North Dakota.

The three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis also upheld a federal judge's ruling in a Nebraska case that required the corps to follow its Master Manual for operating the river.

The ruling in that Nebraska case required the corps to maintain flows for barge traffic last year on the drought-stricken river below the reservoirs, from Sioux City, Iowa, to St. Louis.

Wednesday's decision by the appeals panel also could affect a new round of lawsuits filed this year over Missouri River management.

South Dakota has attempted to prevent the corps from lowering water levels on its four Missouri River reservoirs during spring months when fish eggs are deposited in shallow water. Falling water levels during the spring wipe out fish reproduction for the year.

The appeals judges said the Master Manual, which the corps has been trying to revise for more than a dozen years, is binding on the agency because it sets priorities and directs the corps to take certain actions in certain situations.

The appeals panel noted that the current manual says the river's priorities in order are: flood control; irrigation and upstream beneficial uses; downstream water supply; navigation and power; power generation; and recreation and wildlife.

The 1944 Flood Control Act, which created the system of six dams on the Missouri River in the Dakotas and Montana, provided that the reservoirs were primarily to control flooding and maintain downstream navigation, the appeals panel said. The law said secondary uses of the river included recreation, fish and wildlife.

South Dakota Deputy Attorney General John Guhin said state officials are disappointed that the appeals court rejected the argument that the law requires the corps to maximize all interests, including recreation and navigation.

But the ruling's requirement that the corps must follow the Master Manual could help upstream states in the long run, Guhin said. South Dakota contends the existing manual requires a reduction in the downstream navigation season during drought, he said.

And the new Master Manual, expected to be issued soon, is likely to give fishing and other upstream recreational uses a higher priority than before, and the corps will be bound by that priority change, Guhin said.

"We think there are things in it that will lead to positive developments, positive results for the upstream states and for the whole basin," Guhin said.

More debate on management of the river is expected, both in court and in the political arena. "It's a long way from being over," Guhin said.

Rep. Bill Janklow, R-S.D., who litigated Missouri River cases while a private lawyer and led the state's efforts while South Dakota governor, criticized the decision and the fairness of the 8th Circuit, which he said is skewed toward downstream interests and "has never been fair to South Dakota. Ever."

"This is proof that in

America

, the government can team up with the courts to give the people the shaft. This is proof of that," Janklow said.

Janklow said the state should file the case in a different circuit, such as the District of Columbia. "We're just not going to get justice" in the 8th Circuit.

Sen. Kit Bond of Missouri praised Wednesday's decision. The ruling is a "huge victory for so many of our working families who depend on the Missouri River for commerce," Bond said.

Bond said the ruling was a rebuke to upstream states that sought to manipulate lower courts to limit downstream water flows.

"I know there are some who want to create a North and South Dakota water recreation industry, and I wish them well," Bond said in a written statement. "But the courts are very clear that such efforts should not come at the expense of downstream folks whose lives depend upon a healthy and viable Missouri River."

Sen. Max Baucus of Montana said the current management of the river is unfair because upstream states should not have to endure economic hardship and send water downstream to float barges. He criticized the corps for dragging its feet in revising the Master Manual.

"This has gone on too long - more than a decade," Baucus said in a written statement. "Since the corps refuses to play fair, I'm considering legislation that will force them to."

But Paul Johnston, a spokesman for the corps, said the agency does not view river management as a contest in which some competing uses win and others lose. The corps tries to balance the varying uses under federal law, he said.

The corps plans to issue the new Master Manual later this year and have it in use by next spring, Johnston said.

"No matter how we change the Master Manual, in a prolonged drought the reservoirs will go down. There's just no physical way to prevent that," Johnston said.

The ongoing dispute on management of the Missouri River was revived last year when the drought left less water than usual in the river.

Federal judges in three different lawsuits last year issued conflicting orders that restricted how the corps could operate the Missouri River.

South Dakota and North Dakota had obtained orders preventing the agency from lowering water levels in some reservoirs during a period in April and May when fish were laying eggs in shallow water. Nebraska got a federal court order requiring the corps to follow its Master Manual and maintain downstream flows to support barges.

A year ago, the federal appeals court freed the corps from all the conflicting court orders while it considered the issues raised in the legal battle. Wednesday's decision said South Dakota and North Dakota were unlikely to prevail in their legal arguments, while Nebraska was correct in its argument that the corps must follow its Master Manual.

South Dakota had argued that federal law required the corps to maximize all interests on the Missouri River.

South Dakota also contended that the corps had agreed in federal court more than a decade ago to give equal consideration to all uses while the Master Manual was being revised, but that the corps' decision to lower Oahe Reservoir in South Dakota was arbitrary and capricious.

The appeals court said there is no evidence the corps has failed to give equal consideration to recreation. The appeals judges also said courts cannot review every decision by the corps to make sure that it maximizes benefits for all river users.

"Indeed, such a standard would be impossible to meet, anyway," Judge Richard S. Arnold wrote for the appeals panel. "In times of drought it is not possible for both navigation and fishery benefits to be maximized. Something has to give."

STATE OF NORTH DAKOTA IN DISTRICT COURT

COUNTY OF MCLEAN SOUTH CENTRAL JUDICIAL DISTRICT

The Court, having received a Motion for an Ex Parte Temporary Restraining Order and Order to Show Cause, and having reviewed the Motion and its accompanying brief, affidavits, and other documents, and having considered the evidence, law, and equities presented,

1. Based on the evidence presented in the affidavits supporting the motion, the survival of the cold-water fishery in Lake Sakakawea this summer appears to depend on (a) the average elevation of the lake in May before it stratifies, and (b) the amount that inflow into the lake exceeds outflow during June, July, and August. Unless altered, it appears that the Defendant Corps’ 2003 Annual Operating Plan (AOP) will entirely deplete the lake’s cold-water habitat by late summer, which threatens the survival of most or all the cold-water fishery. Thus, it appears that “immediate corrective steps” (Power Aff. ¶ 11) are necessary to protect Lake Sakakawea’s coldwater fishery and habitat. Based on this, the Court finds that there appears to be sufficient factual, legal, and equitable grounds to immediately enjoin the corps pursuant to the authority given by statute to grant equitable and injunctive relief under N.D.C.C. § 32-40-11 and N.D.C.C. § 61-28-06, -07, & -8(5), as recently amended by the North Dakota Legislature in an emergency measure that became effective immediately upon filing with the Secretary of State on March 28, 2003. See Addendum, pages 13-15.

2. Although it is unusual that a federal agency may be sued in state court, the federal Clean Water Act clearly waives federal immunity and requires that “[e]ach” federal agency “having jurisdiction over any property or facility” comply with “all . . . State . . . requirements . . . process and sanctions respecting the control and abatement of water pollution.” 33 U.S.C. § 1323(a). This same provision provides that federal agencies may be sued in state court, although it also allows the agency the option to remove the case to federal district court. Id. Thus, I find that this Court has jurisdiction to consider and rule on the motion before it.

3. The Corps is a federal agency or entity, and has jurisdiction over Garrison Dam and reservoir, a federal facility and property. As such, it appears that it is subject to, and must comply with “all . . . State . . . requirements . . . process and sanctions respecting the control and abatement of water pollution.” 33 U.S.C. § 1323(a). Thus, I find that the Corps must comply with North Dakota’s requirements, process and sanctions respecting the control and abatement of water pollution.

4. Water “pollution” means “the manmade or man-induced alteration” of the physical, chemical, biological, or radiological integrity of any waters of the state. N.D.C.C. § 61-28-02(7); N.D. Admin. Code § 33-16-02.1-04(7). See also 33 U.S.C. § 1362(19). The Corps appears to be causing manmade or man-induced alterations to the biological integrity of Lake Sakakawea (water pollution), and this pollution appears to be impacting all of the lake’s associated beneficial uses, including severe impacts that threaten the continuing survival of the coldwater fishery of the lake. That, in turn, will impact many other beneficial uses such as recreation and tourism. The Corps is causing this pollution by increasing discharges from the reservoir to support a single downstream beneficial use – navigation – over all of the upstream beneficial uses that appear to significantly outweigh navigation when all environmental and economic factors are considered. The drought does not appear to be the cause of the threatened state of the lake’s coldwater fishery – rather the cause appears to be the Corps’ management of the resource. If continued, these excessive discharges threaten to cause violations of North Dakota’s water quality standards this summer. Thus, I find that the Corps must manage its discharges from the reservoir to avoid causing pollution that violates the state’s water quality standards, including the narrative standards that protect beneficial uses under N.D. Admin. Code § 33-16-02.1.

5. Although the Corps appears to be responsible for managing navigation on the river, it does not appear that it was Congress’s intent that the Corps’ management authority pre-empt its responsibility to comply with state water pollution requirements. In fact, the Legislative history to the most recent amendment to 33 U.S.C. § 1323 shows it was amended in response to a previous challenge by the Corps to state authority to enforce its water pollution laws. That legislative history states:

The act has been amended to indicate unequivocally that all Federal facilities and activities are subject to all of the provisions of State and local pollution laws. Though this was the intent of the Congress in passing the 1972 Federal Water Pollution Control Act Amendments, the Supreme Court, encouraged by Federal agencies, has misconstrued the original intent.

Legislative History, P.L. 95-217 (Clean Water Act of 1977) at 67 (December 15, 1977).

Thus, I find that the Corps indeed has jurisdiction over navigation on the Missouri River, but that it must exercise that jurisdiction in a manner that complies with state water pollution laws and requirements.

6. Having determined that the Corps is causing water pollution that threatens to violate North Dakota’s water quality standards, and that these violations threaten the biological integrity of the lake by threatening the survival of the coldwater fishery, the Court must next balance the equities and consider what equitable relief will provide the greatest immediate benefit to the threatened resource, while minimizing to the greatest extent possible impacts on other reservoirs and downstream beneficial uses. The Corps of Engineers has issued a forecast for the average daily amount of water it intends to release from Garrison Dam, a federal facility, during the remaining months of 2003. Corps of Engineers, “Most Likely Runoff Simulation Elevations & Storage” (Apr. 1, 2003). (The Forecast covers all the dams on the river.) See State’s Addendum at pages 356-58. For Garrison Dam, these forecasts are 19,800 cfs for May, 24,000 cfs for June, 21,500 cfs for July, 21,000 cfs for August, and 16,200 cfs for September. The evidence presented in the affidavits of Deutschman, Sauer, and Power essentially shows that survival of the cold-water fishery in Lake Sakakawea this summer depends on (1) the average elevation of the lake in May before it stratifies, and (2) the amount that inflow into the lake exceeds outflow during June, July, and August. Thus, the equitable relief, to be effective, must address the forecast outflow from the reservoir in a way that effectively (1) increases the average elevation of the lake in May before it stratifies, and (2) decreases the average daily amount of water it intends to release from Garrison Dam under the 2003 AOP.

7. The evidence presented to this court in supporting affidavits to the motion essentially show that there are two biological thresholds that the court needs to consider: a “long-term damage” threshold, and an “irreparable harm” threshold. The provisions of N.D.C.C. § 61-28-06(3), as amended, appear to allow this court to grant injunctive relief when either threshold is exceeded. According to the evidence presented in the affidavits, the long-term damage threshold is crossed when the total volume of cold water habitat in the lake falls below 800,000 acre-feet, and the irreparable harm threshold is crossed when the volume of cold water habitat falls below 200,000 acre feet. Observable negative impacts on the cold water fishery (and associated impacts on related beneficial uses) apparently occur when the volume of cold water habitat recedes below 800,000 acre-feet and continually worsen as the volume of the habitat declines to zero. Another critical threshold is crossed when the volume of the cold water habitat falls below 200,00 acre-feet, when the survival of the cold water fishery comes into play. As determined in paragraph 1, the affidavit of Todd Sando states that the Defendant Corps’ 2003 AOP will entirely deplete the lake’s cold-water habitat by late summer, Sando Aff. ¶ 39, which this court has determined poses a threat serious enough to grant immediate relief because it threatens the survival of most or all the cold-water fishery.

8. The essential factual issue the court must address in determining the appropriate equitable relief is to determine when, how, and how much to restrict the monthly forecast flows to protect the cold water fishery and its associated beneficial uses from irreparable harm. As noted, the two options available for avoiding irreparable harm appear to be (1) to increase the average elevation of the lake in May as much as possible before the lake “stratifies,” see Sauer Aff. ¶’s 18-26, and (2) to decrease the outflows from the lake as much as possible during June, July, and August. In considering the appropriate relief, the court should bear in mind that the forecasts are only estimates, as are the “long-term damage” and “irreparable harm” thresholds presented in the affidavits. The harm itself, if it occurs, is not an estimate. Thus, the Court will act conservatively to preserve the resource until such time as it receives evidence to show otherwise.

9. Todd Sando’s affidavit states that the Court can prevent the cold water habitat from falling below the irreparable harm threshold by ordering discharges from the dam be cut by 2,500 cfs in the months of June, July, and August. This would do nothing, however, to increase the level of the lake when it stratifies. Todd Sando’s affidavit also states that the Court can prevent the cold water habitat from falling below the irreparable harm threshold by ordering discharges from the dam be cut by approximately 8,660 cfs in the months of June, July, and August. The Court will not consider making this larger reduction to protect the resource from crossing the long-term damage threshold until it has heard further evidence presented at a “show cause” hearing for a preliminary injunction.

10. With regard to the ex parte temporary restraining order (TRO), the State in its brief asks that the Court order that the Forecast releases as shown in the April 1, 2003 forecast, be reduced in the amount of 2,350 cfs for the months of May, June, July, and August. These amounts can be adjusted after the court receives further evidence and argument in the order to show cause hearing for the preliminary injunction. By establishing these amounts in the TRO, the state suggests, the Court will allow comment and consideration of a concrete and precise proposal, to which it can make meaningful adjustments after full consideration. The Court agrees that is a factor to be weighed, but it grants the TRO at this time more because of it appears that immediate steps are necessary to protect the coldwater fishery, and delay in implementing immediate relief may result in the harm occurring before appropriate relief may be granted, especially in light of delays that may result from litigating these issues. An order at this time, which will preserve the resource from irreparable harm while the remaining issues are determined, seems like the most prudent course for the Court to take, after considering the competing equities.

11. It appears from prior litigation, another race-to-the-courthouse may occur to protect Lake Oahe, a portion of which lies in North Dakota. To preserve the status quo until the impact of this order on that resource may be considered further at the order to show cause hearing, I order the Corps to not to let the level of that lake fall until the show cause hearing, at which point the equities can be more fully weighed.

12. Finally, it appears that the Corps is required under Pres. Exec. Order No. 12088, 43 Fed Reg. 47707 (October 13, 1978) to submit a plan to the state that would correct any water pollution violations caused by the Corps, which provides inrelevant part:

1-601. Whenever … the appropriate State … agency notifies an Executive agency that it is in violation of an applicable pollution control standard (see Section 1-102 of this Order), the Executive agency shall promptly consult with the notifying agency and provide for its approval a plan to achieve and maintain compliance with the applicable pollution control standard. This plan shall include an implementation schedule for coming into compliance as soon as practicable.

The Court finds that the executive order required the Corps to submit such a plan, and further that it would be useful to the Court for the Corps to submit such a plan for the show cause hearing that would address options for the Court to consider that might prevent ‘long-term” or “irreparable” harm to the cold water fishery of the lake.

1. The Corps of Engineers has issued a forecast for the average daily amount of water it intends to release from Garrison Dam, a federal facility, during the remaining months of 2003. Corps of Engineers, “Most Likely Runoff Simulation Elevations & Storage” (Apr. 1, 2003). (The Forecast covers all the dams on the river.) For Garrison Dam, the May forecast is 19,800 cfs. The Defendants and each of them are prohibited from exceeding this amount, less 2,350 cfs, that is, the Defendants and each of them are prohibited from allowing Garrison Dam releases in May that exceed an average daily amount of 17,450 cfs. On April 28, 2003, the Corps of Engineers released 19,400 cfs from Garrison Dam. The Defendants and each of them may not release more than 17,050 cfs on April 30, 2003. This order is made because the Court finds that unless immediately altered, the Corps 2003 Annual Operating Plan (AOP) will likely deplete the Lake Sakakawea’s entire cold-water fish habitat by late summer, which will kill most or all of the lake’s cold-water fishery. If immediate action is not taken a permanent injunction may be ineffectual because it will come too late to protect the resource. Furthermore, the Defendants and each of them must not allow the May releases from Lake Oahe to exceed the amount forecasted in the April 1, 2003, Forecast referred to above. The Defendants and each of them may not exceed the release rates set forth in this paragraph unless ordered otherwise by this Court or another court with jurisdiction.

2. The Defendants and each of them must prepare and submit a plan to this Court to achieve and maintain compliance with all North Dakota water pollution laws and water quality standards no later than twenty (20) days from the date of this order, or to show cause why it may not comply with such pollution laws because of matters beyond its control. The Court will not look favorably on a response that raises only jurisdictional issues, and fails to address the allegations of harm that will occur this summer if the 2003 AOP is not modified in a way that reduces impacts on the cold water fishery of Lake Sakakawea to the greatest extent practicable.

3. The Defendants and each of them must prepare and submit to the Court an implementation schedule for coming into compliance with North Dakota water pollution laws and water quality standards as soon as practicable, and if it alleges that it may not because forces beyond its control, then it must present evidence to this Court of a plan that mitigates the effects of its management practices on the cold water fishery to the greatest extent practicable.

4. The Defendants and each of them must show cause why the Court should not issue a preliminary injunction order stating:

The Corps of Engineers has issued a forecast for the average daily amount of water it intends to release from Garrison Dam, a federal facility, during the remaining months of 2003. Corps of Engineers, “Most Likely Runoff Simulation Elevations & Storage” (Apr. 1, 2003). (The Forecast covers all the dams on the river.) For Garrison Dam, these forecasts are 19,800 cfs for May, 24,000 cfs for June, 21,500 cfs for July, 21,000 cfs for August, and 16,200 cfs for September. The Defendants and each of them are prohibited from exceeding these amounts, less 2,350 cfs, that is, the Defendants and each of them are prohibited from allowing Garrison Dam releases that exceed an average daily amount of 17,450 cfs for May, 21,650 cfs for June, 19,150 cfs for July, 18,650 cfs for August, and 13,850 cfs for September. Furthermore, the Defendants and each of them must not allow May, June, July, August, and September releases from Lake Oahe to exceed the amounts forecasted in the April 1, 2003, Forecast referred to above. The Defendants and each of them may not exceed the release rates set forth in this paragraph unless ordered otherwise by this Court or another court with jurisdiction.

Further, the Corps must show cause why more aggressive steps should not be taken under equity to prevent the volume of cold water habitat in Lake Sakakawea form falling this summer below the long-term damage threshold discussed in this Court’s findings.

The show cause hearing will be held at the _______________ County Courthouse in _____________, N.D. The hearing will begin at _:00 _.m. Briefs and affidavits may be submitted to the Court at least five business days before the hearing. After receipt of any additional briefs and affidavits the Court will notify the parties as soon as possible whether it will allow at the show cause hearing the presentation of witnesses or whether the hearing will be limited to oral argument. Any additional affidavits or written arguments submitted by the state must be submitted at least 10 days before the hearing to allow the Corps an opportunity to respond in writing before the Court determines whether oral testimony is necessary.

A group of 10 conservation organizations filed suit against the U.S. Army Corps of Engineers and the U.S. Fish and Wildlife Service on February 13, 2003. The lawsuit, filed in the U.S. District Court for the District of Columbia, seeks to change the operation of the six Main Stem Missouri River Dams to benefit the basin's three threatened and endangered species: the least tern, the piping plover, and the pallid sturgeon.

The organizations include American Rivers; Environmental Defense; The Izaak Walton League of America; The National Wildlife Federation; The Montana Wildlife Federation; The North Dakota Wildlife Federation; The South Dakota Wildlife Federation; The Nebraska Wildlife Federation; The Iowa Wildlife Federation; and The Kansas Wildlife Federation.

On February 20, 2003, North Dakota filed a Notice of Violation with the U.S. District Court in Bismarck, claiming that the Corps of Engineers' Missouri River reservoir management is violating North Dakota's clean water laws. A copy of the Notice of Violation is shown below:

STATE OF NORTH DAKOTA

NORTH DAKOTA DEPARTMENT OF HEALTH

ENVIRONMENTAL HEALTH SECTION

IN THE MATTER OF: )

)

THE UNITED STATES ARMY CORPS OF )

ENGINEERS, a federal agency, and ) CASE NO. 03-556 WPC

LT. COLONEL KURT F. UBBELOHDE, )

DISTRICT ENGINEER, OMAHA )

DISTRICT, UNITED STATES ARMY )

CORPS OF ENGINEERS, and )

GENERAL DAVID A. FASTABEND, )

COMMANDER, NW DIVISION, )

PORTLAND, OREGON, )

)

Respondents. )

...........................................................................................................................................................

NOTICE OF VIOLATION

The North Dakota Department of Health (Department) hereby gives notice to the above named respondents of apparent continuing violations, and actions that threaten to violate, the water quality standards that apply to the federal facility commonly called the Garrison Dam and reservoir (Lake Sakakawea) under management and control of the United States Army Corps of Engineers (Corps).

1. The Department is the state agency responsible for promulgating and enforcing the water quality standards of the Clean Water Act within North Dakota under its federally enforceable state water quality plan approved by the Administrator of the EPA. 33 U.S.C. § 1313; N.D.C.C. ch. 61-28; N.D. Admin. Code ch. 33-16-02.1.

2. The Department periodically reviews and revises its water quality standards as required by the Clean Water Act, which:

“shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses. Such standards shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of this chapter. Such standards shall be established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation.”

33 U.S.C. § 1313(c )(2)(A).

3. The Department’s water quality standards are promulgated at N.D. Admin. Code ch. 33-16-02.1, and their last revision under the continuing planning process required by the Clean Water Act became effective June 1, 2001. See 33 U.S.C. § 1313(c )(1) & (e)(3)(f). These standards establish a system for “classifying” waters of the state, “provide standards” of water quality for waters of the state, and “protect existing and potential beneficial uses” of waters of the state. N.D. Admin. Code § 33-16-02.1-02(1).

4. Lake Sakakawea is a federal facility managed by the Corps whose dam and reservoir are located within the state of North Dakota, and is subject to, and must comply, with “state …requirements and administrative authority, and process and sanctions” respecting the control and abatement of “water pollution.” 33 U.S.C. § 1323. Lt. Colonel Kurt F. Ubbelohde, district engineer, and General David A. Fastabend, Commander, NW Division, are the persons responsible for managing Lake Sakakawea for the Corps.

5. “Waters of the state” means “all waters within the jurisdiction of this state including all streams, lakes, ponds, impounding reservoirs, marshes, watercourses, waterways, and all other bodies or accumulations of water on or under the surface of the earth, natural or artificial, public or private, situated wholly or partly within or bordering upon the state…” N.D.C.C. § 61-28-02(11). As a lake and impounding reservoir located upon the Missouri River in North Dakota, Lake Sakakawea is a water of the state of North Dakota.

6. Water “pollution” means “the manmade or man-induced alteration of the physical, chemical, biological, or radiological integrity of any waters of the state.” N.D.C.C. § 61-28-02(7). See also 33 U.S.C. § 1362(19). “Pollution” includes any “alteration of the physical, chemical, or biological properties, of any waters of the state, including change in temperature.” N.D. Admin. Code § 33-16-02.1-04(7).

7. North Dakota’s water quality classifications and standards are established “for the protection of public health and environmental resources and for the enjoyment of these waters, to ensure the propagation and well-being of resident fish, wildlife, and all biota associated or dependent upon these waters, and to safeguard social, economical, and industrial development.” N.D. Admin. Code § 33-16-02.1-02(2). “All known and reasonable methods to control and prevent pollution of the waters of this state are required, including improvement in quality of these waters, when feasible.” Id.

8. “Waters with existing quality that is higher than established standards will be maintained at the higher quality unless affirmatively demonstrated, after full satisfaction of the intergovernmental coordination and public participation provisions of the continuing planning process, that a change in quality is necessary to accommodate important social or economic development in the area in which the waters are located. In allowing the lowering of existing quality, the department shall assure that existing uses are fully protected and that the highest statutory and regulatory requirements for all point sources and cost- effective and reasonable best management practices for nonpoint sources are achieved.” N.D. Admin. Code § 33-16-02.1-02(2)(a).

9. “Classification of waters of the state shall be used to maintain and protect the present and future beneficial uses of these waters.” N.D. Admin. Code § 33-16-02.1-07. (Italics provided.)

10. Lake Sakakawea has been classified as a Class 1 lake under North Dakota’s state water quality plan . Appendix II, N.D. Admin. Code ch. 33-16-02.1. Lakes are classified according to their “water characteristics” which “are to be maintained in the specified lakes.” Id.

11. The designated beneficial use of a class 1 lake are a “[c]old water fishery. Waters capable of supporting growth of salmonid fishes and associated aquatic biota.” N.D. Admin. Code § 33-16-02.1-09(1)(f).

12. The cold water fishery on Lake Sakakawea is the only disease free fresh water Chinook salmon fishery.[1] The hatchery at Lake Sakakawea gets all salmonid stock from that fishery, and cannot accept diseased stock. If Lake Sakakawea’s cold water fishery is lost or destroyed, the hatchery will not be able to accept any diseased salmonid stock to restock the lake, and not only the lake, but the world, will lose the only remaining source for disease free fresh water Chinook salmon for stocking Lake Sakakawea and other lakes.

13. The use and value of Lake Sakakawea as a cold water fishery for the propagation of fish and wildlife, and for recreational and related purposes, is an existing and potential beneficial use that must be protected under N.D. Admin. Code ch. 33-16-02.1 and North Dakota’s federally enforceable state water quality plan “for the protection of public health and environmental resources and for the enjoyment of these waters, to ensure the propagation and well-being of resident fish, wildlife, and all biota associated or dependent upon these waters, and to safeguard social, economical, and industrial development.” N.D. Admin. Code § 33-16-02.1-02(2).

14. The Department and the Governor have sent letters warning the Corps that any drop in elevation of Lake Sakakawea below 1825’ msl in elevation will likely cause water quality violations under N.D. Admin. Code ch. 33-16-02.1.

15. Lake Sakakawea currently has dropped below 1825’ msl. If a level less than this level occurs prior to the summer thermal stratification, it threatens not only to cause violations of Lake Sakakawea’s class 1 water quality standards, but also threatens the very existence of the cold water fishery.

16. Starting in 1992, the Department initiated extensive water quality monitoring on Lake Sakakawea. The Corps in its draft revised master manual for the Missouri River clearly shows that a correlation exists between water quality and reservoir elevations. Substantial data clearly demonstrate that water quality deteriorates at lower reservoir elevations, and that if elevations below 1825’ msl persist during the summer, they are likely to cause thermal pollution and other conditions that will violate Lake Sakakawea’s class 1 water quality standards and classification.

17. “The beneficial water uses and parameter limitations designated for class 1 streams shall apply to all classified lakes.” Appendix II, N.D. Admin. Code ch. 33-16-02.1; N.D. Admin. Code § 33-16-02.1-09(3)(e). This includes a requirement that they be managed so that “[t]he quality of the waters in this class shall be suitable for the propagation or protection, or both, of resident fish species and other aquatic biota and for swimming, boating, and other water recreation,” N.D. Admin. Code § 33-16-02.1-09(1)(a), and that they be managed to prevent a “dissolved oxygen” level of “not less than 5 mg/l.” Table 1, N.D. Admin. Code ch. 33-16-02.1.

18. The substantial data collected since 1992 demonstrates that thermal pollution caused by the manmade alteration of the level of Lake Sakakawea likely will cause dissolved oxygen to fall below 5 mg/l in the hypolimnion (the deeper parts of the lake that support the cold water fishery) at 1825’ msl during the summer months, and will grow increasingly worse at elevation levels lower than that, depending on weather conditions and the length of time levels below 1825’ msl are sustained. The cold water habitat will become so small that the cold water fishery, and the food web necessary to support it, can no longer exist. The Department has notified the Corps on numerous occasions that failure to maintain an 1825’ msl elevation are likely to cause water quality violations if continued into the summer months. Currently the level of Lake Sakakawea is well below that level, and, unless either management of the lake is changed or a large amount of precipitation falls in the upper basin of the Missouri River in the next 30 days, the level of the Lake is likely to stay at a level below 1825’ msl into the summer months when the water quality violations described above will likely occur.

19. Although some of the elevation drop is attributable to drought conditions in the Missouri River Basin, some of the drop is attributable to the Corps management, and has caused or will create water pollution that is violating or threatens to violate Lake Sakakawea’s water quality classification and standards and is therefore subject to state enforcement under 33 U.S.C. § 1823 and North Dakota’s state water quality plan under the Clean Water Act as described above. Further, “[a]ll known and reasonable methods to control and prevent pollution of the waters of this state are required, including improvement in quality of these waters, when feasible.” N.D. Admin. Code § 33-16-02.1-02(2).

20. 33 U.S.C. § 1323(a) provides in part:

Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants, and each officer, agent, or employee thereof in the performance of his official duties, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable service charges. The preceding sentence shall apply (A) to any requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement, whatsoever), (B) to the exercise of any Federal, State, or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner. This subsection shall apply notwithstanding any immunity of such agencies, officers, agents, or employees under any law or rule of law. (Italics provided.)

21. In addition to being subject to state requirements and sanctions relating to control and abatement of water pollution under 33 U.S.C. § 1323(a) as described above, the Clean Water Act also makes the Administrator of the Environmental Protection Agency (EPA), not the Corps or any other federal agency, responsible for determining “water quality” control in federal reservoirs. 33 U.S.C. §1252(b)(3). In addition to remedies for control and abatement of water pollution under 33 U.S.C. § 1323(a), the state or the governor may commence a civil action pursuant to 33 U.S.C. § 1365 if the violations of North Dakota’s state water quality plan are not immediately corrected and by all known and reasonable methods to control and prevent pollution of the waters of this state.

Based on the above, the Department makes the following determinations and gives the following notices relating to the apparent actual and threatened violations described above:

1. The Corps of Engineers must manage Lake Sakakawea to prevent any “manmade or man-induced alteration of the physical, chemical, biological, or radiological integrity of any waters of the state” in accordance with North Dakota’s water quality standards, and to adjust releases from storage in the Garrison reservoir accordingly.

2. The Corps’ management of releases of water from Lake Sakakawea is in violation of the North Dakota water quality classification and standards for Lake Sakakawea under its state water quality plan described above, including the numeric dissolved oxygen standard and the narrative standards to protect the cold water fishery.

3. The Corps’ plan for operations of the main stem system contains alternatives based on the amount of runoff it predicts will occur. Based on the Corps predictions, the current proposal for the operation of the main stem dams will result in the elevation of Lake Sakakawea being drawn below 1825’ msl during the summer months when violations will occur, unless immediate steps are taken to prevent or mitigate these man made alterations.

4. North Dakota’s water quality standards have been in the past, and will likely be violated again, at elevation 1825’ msl, as described in detail above, including the narrative standards requiring maintenance of water quality “for the propagation and/or protection of resident fish species and other aquatic biota.” N.D. Admin. Code § 33-16-02.1-09(a).

5. The State of North Dakota may maintain an action for injunctive relief in accordance with its state law against any person to enjoin any threatened or continuing violation of any provision of N.D.C.C. ch. 61-28, rule, order, limitation, or other applicable requirement implementing N.D.C.C. ch. 61-28. N.D.C.C. § 61-28-08(5). See also 33 U.S.C. § 1323.

6. The state may also seek declaratory relief, damages, and civil penalties and other relief under federal law for any continuing water quality violation that is not corrected by the Corps, and, if it does so, to impose the costs of suit, including reasonable attorney and expert witness fees, pursuant to Section 505(d) of the Clean Water Act, 33 U.S.C. § 1365(d). See 33 U.S.C. §§ 1313, 1319, 1323 & 1365; N.D.C.C. ch. 32-40. The term “person” includes a “state” under the Clean Water Act, 33 U.S.C. § 1362(5), and this NOV also gives notice to the Corps and the Administrator of the State’s intention to bring an action to enforce its claims and rights to relief and rights under state and federal law if the alleged violations are not corrected.

THEREFORE, it appearing to the Department that good cause exists to issue a Notice of Violation, Notice is hereby given to respondents that the Department believes respondents are in violation of the laws, classifications and standards described above. The Department further finds that an appropriate civil action will be commenced by or on behalf of the department unless the respondents take appropriate and timely action to correct these apparent violations.

THEREFORE, IT IS ORDERED that a copy of this Notice of Violation, made and entered by the Department's own motion, be served upon the respondents forthwith in
any appropriate manner under the law, and that a copy be served on the EPA Administrator as provided by law.

Dated at Bismarck, North Dakota, this day of February, 2003.

FOR THE DEPARTMENT:

________________________________

L. David Glatt, Chief

Environmental Health Section

LINCOLN - Nebraska is again joining the legal battle over the management of the Missouri River.

Attorney General Jon Bruning said the state is asking to step into a lawsuit filed a month ago by a coalition of environmental groups led by American Rivers against the Army Corps of Engineers and the U.S. Fish and Wildlife Service.

The coalition claims that the corps' management of the river is causing ecological decline and hardship to some riverside communities. But Bruning said the coalition's demands for lower downstream flow levels would cause substantial harm.

"It was inevitable that we participate in these lawsuits," he said. "We simply can't expect anyone but Nebraska to protect Nebraska's interests."

Nebraska's position in the lawsuit will be to continue the current operation of the river and to protect and serve all authorized purposes, including barge navigation, to the extent possible.

Nebraska sued the corps last year to protect navigation and other downstream uses, while upstream states sued to protect their recreational interests.