November 14, 2012 VIA

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1 November 14, 2012 VIA Lt. Gen. Thomas P. Bostick Commanding General and Chief of Engineers U.S. Army Corps of Engineers 441 G St., NW Washington, DC Re: Mississippi River low water Dear General Bostick: The prevalent drought of 2012 seriously threatens continued navigation on the Mississippi River, which in turn threatens both the economy and national security. Numerous interested parties seek a means by which the United States Army Corps of Engineers ( Corps ) might operate the dams and reservoirs throughout the Missouri and Mississippi River systems to sustain commercial navigation on the Mississippi River. This letter serves three purposes. First, we ask that this letter be considered as comments on the draft Annual Operating Plan ( AOP ) for the Missouri River Mainstem System. As we understand it, this Draft AOP was published in September 2012 and comments are due November 23, Second, we are submitting this as a request to immediately convene the Mississippi River Control Management Board ( Board ) pursuant to 33 C.F.R and that the Board take action to ensure the proper management of both rivers, specifically that the Corps consider any and all options that will maintain the 9-foot navigation channel in the Mississippi River. We do not expect, nor would we ask, the Corps to take any action with respect to the Mississippi River that would unduly burden any other interest in the Missouri River reservoir system; we ask only that the Corps also take into account navigation on the Mississippi when exercising its discretion on how best to manage Missouri River water resources. We understand the Corps believes it lacks legal authority to manage Missouri River reservoirs in a manner that would benefit navigation on the Mississippi River. We respectfully submit that a review of the statute, regulations, and legislative and operating history demonstrates that (a) Congress specifically intended that the Missouri River reservoirs be operated in a manner that could, would, and should beneficially impact downstream areas in the Mississippi as well as the Missouri, and there is no legal prohibition against it doing so; (b) the

2 Lt. Gen. Thomas P. Bostick November 14, 2012 Page 2 of 3 Mississippi River Control Management Board was created to address issues relating to interconnected basins and the Corps itself invoked it to address needs on the Mississippi; (c) the Corps own Master Plan requires that it deviate from other provisions in the plan when circumstances like the current ones exist; (d) the Corps has previously operated the Missouri in ways intended to benefit the Mississippi. Ultimately, the Corps must provide a rational basis for choosing not to protect navigation on the Mississippi while balancing its other obligations. 1 Third, we are providing this letter to senior management of the Corps asking that they take the actions noted above, in the event the Board declines to do so. We ask that the Corps consider managing the water flows on the Missouri River and dredge and remove rocks on the Mississippi River so as to maintain a 9-foot channel on the Mississippi. We also ask that the Corps include parties with an interest in Mississippi navigation in any decision-making process so as to achieve an acceptable solution to this potential national calamity. We are enclosing with this letter a detailed analysis of the legal and water supply considerations that we feel are important in further review and analysis by the Corps of this critical need. We stand ready to meet with you and your staff at your convenience to discuss this matter further. Respectfully submitted, Thomas A. Allegretti President & CEO The American Waterways Operators Amy W. Larson, Esq. President and CEO National Waterways Conference, Inc. /s/ Mike Toohey President & CEO Waterways Council, Inc. 1 Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 532 (2007) (an agency acts inconsistent with law where it declines to act based on the incorrect conclusion that it lacks authority to do so).

3 Lt. Gen. Thomas P. Bostick November 14, 2012 Page 3 of 3 cc: Honorable Jo-Ellen Darcy Assistant Secretary of the Army (Civil Works) 108 Army Pentagon Washington, DC Maj. Gen. Michael J. Walsh Deputy Commanding General, Civil and Emergency Operations U.S. Army Corps of Engineers 441 G St., NW Washington, DC Maj. Gen. John W. Peabody President, Mississippi River Commission Commander, Mississippi Valley Division 4155 East Clay Street, Vicksburg, MS Steven L. Stockton Director of Civil Works U.S. Army Corps of Engineers 441 G St., NW Washington, DC Jody S. Farhat, P.E. Chief, Missouri River Basin Water Management Division Department of the Army U.S. Army Corps of Engineers, Northwestern Division P.O. Box 2870 Portland, OR Col. Christopher G. Hall Commander, St. Louis District U.S. Army Corps of Engineers 1222 Spruce Street St. Louis, MO

4 MEMORANDUM This memorandum reviews the legal authority of the Army Corps of Engineers to use emergency contracting procedures to remove certain rock obstructions in the Mississippi River and to take into account navigation on the Mississippi River when exercising its discretion on how best to manage Missouri River water resources. I. Pinnacle Removal The Corps should use its emergency authority to procure a contract to demolish the rock pinnacles in the Mississippi River navigation channel at Grand Tower (mile 81.9) and Thebes (mile 43.7) that, during unusually low flow periods, threaten navigation. Under the Competition in Contract Act, the Corps has the authority to justify a sole source award based on the unusual and compelling circumstance created by the severe drought. 1 The Corps may employ this exception to the normal requirement for full and open competition when, as here, delay of a contract award would result in serious financial or other injury to the Government. 2 Federal Acquisition Regulation Subpart 6.3 permits an agency to limit competition when (1) the agency s need for such services is of such unusual and compelling urgency to preclude full and open competition and (2) delay would result in serious injury, financial or other, to the Government. 3 Minimized or impaired navigation along the Mississippi River could severely impact the national economy, including many commercial contracts and commitments of the Federal Government. These may impact the Federal Government in any number of ways. For example, (i) the Government may be called upon to expend significant amounts of money for disaster relief through various federal programs, (ii) forcing vessels to light load would negatively affect interstate commerce, reducing federal revenue and increasing federal transportation costs, and (iii) diversions of cargo and resulting delays can also cause other hazards to the transport of cargo on this critical navigation channel, increasing federal expenditures. Additionally, the pinnacles would create a navigation hazard that could result in potential loss of life and/or environmental damage. The Federal Government faces an immediate and direct economic threat from this severe drought, and the Corps has the power and ability to prevent serious financial injury to the Government through a sole source contract for pinnacle removal. The Corps could undertake this emergency action while continuing the dredging work now under way. 1 See Federal Acquisition Regulation ( FAR ) Subpart See, e.g., Justification and Approval For Other Than Full and Open Competition, SWG (citing FAR (a)(2) and (b)(1) and (2) to address unexpected shoaling in the Houston Ship Channel, causing a draft restriction resulting in vessel groundings and the loss of substantial amounts of revenue from decreased vessel loading capacity). 3 FAR (a)(2) and (b)(1) and (2).

5 II. Manage the water flows on the Missouri River so as to take into account the need to maintain a 9-foot channel on the Mississippi. In September 2012, the Corps published for comment its draft Annual Operating Plan for the Missouri River Mainstem System. The Corps stated: Gavins Point Dam. Releases will be scheduled to support downstream full service flows in reaches with scheduled commercial navigation throughout the 2012 navigation season. A full length navigation season will be provided in accordance with the technical criteria for the July 1 System storage check presented in the Master Manual. The last day of flow support for the commercial navigation season will range from November 21 at Sioux City to November 30 at the mouth near St. Louis. Releases will be reduced by approximately 3,000 cfs per day beginning in mid-november working toward a target winter release of 12,000 cfs. The final 3,000 to 5,000 cfs of release reductions may be made in smaller increments to ensure water intakes along the lower river remain operational. The Gavins Point pool level will be raised 1.5 feet to elevation feet msl in September. The pool level will remain near that elevation during the fall and winter months. 4 While the Corps asked the public for comment on this proposal by November 23, 2012, on November 6, 2012 the Corps announced its intention to move forward with this plan. 5 The navigation industry has been in discussions with various Corps personnel about this decision. On several occasions, the navigation industry has been advised that the Corps would not consider operating the Missouri reservoirs to aid Mississippi River navigation because it lacks the legal authority under the Missouri River Mainstem Reservoir System Master Water Control Manual ( Master Manual ) 6 to do so. In fact, at a meeting on November 2 nd, 2012, Maj. Gen. Walsh advised industry representatives that the Corps hands were tied in this regard. 7 This position was explained in an dated November 9, 2012, Mr. Stockton forwarded in which the Corps Chief Counsel wrote the following to him, James Hannon, and Maj. Gen. Walsh: 4 U.S. Army Corps of Engineers, Northwestern Division, Missouri River Basin Water Management Division Draft Annual Operating Plan at News Release, U.S. Army Corps of Engineers, Corps to begin drought conservation measures (Nov. 6, 2012) (available at: 6 U.S. Army Corps of Engineers, Northwestern Division, Missouri River Mainstem Reservoir System, Master Water Control Manual, Missouri River Basin (revised March 2006). 7 We understand that the Corps view on this point is informed, in part, on an opinion authored by Corps Chief Counsel dated August 17, We have requested a copy of this opinion from the Corps through a Freedom of Information Act request, but have not received it to date. It is not entirely clear to us why we are being denied a copy of this opinion. The reason given, that because the opinion was issued some time ago and does not take into account more recent court decisions, its release could cause confusion about the Corps current authority and discretion to operate the Missouri reservoirs is not cognizable under the Freedom of Information Act. Moreover, the opinion was apparently provided to another branch of government, the GAO, many years ago, and as such cannot be claimed as a privileged communication. 2

6 In short, the Corps is statutorily bound to operate the Missouri mainstem reservoirs for the multiple purposes for which Congress authorized them. While the Corps plan referenced in Congress authorization recognized that operation of those reservoirs for their authorized purposes within the Missouri River basin would incidentally benefit downstream navigation on the Mississippi River, nothing in the Corps recommended plan, Congress statutory authorization, or the Eighth Circuit s subsequent interpretation of that authorization ever indicated an expectation that the system would be operated to provide anything other than incidental benefits to navigation on the Mississippi. 8 We respectfully disagree. Our review of federal statutes, regulations, and case law demonstrates that there is no legal authority prohibiting the Corps from considering impacts on the Mississippi River as it carries out its obligations with respect to the Missouri River. 9 In fact, the Missouri River s impacts on the Mississippi were central in Congress consideration of how best to develop the Missouri River reservoir system. While it is correct that the Corps must operate the Missouri mainstem reservoirs for the multiple purposes for which Congress authorized them, those purposes include navigation downstream on the Mississippi. It is not the case that the operation of reservoirs on the Missouri (or any river for that matter) must be narrowly limited to considerations of how those reservoirs impact only the river on which they exist. Congress delegated authority to the Corps to manage the various rivers and reservoirs to achieve a national not a geographically narrow goal. [I]t shall be the duty of the Secretary of War to prescribe regulations for the use of storage allocated for flood control or navigation at all reservoirs constructed wholly or in part with Federal funds It is also not the case, as explained below, that Congress only intended that any benefit to the Mississippi from operation of the Missouri reservoirs be incidental (and not intended). As authority for this proposition, the November 9 references page 18 of a letter from the Secretary of War to the House of Representatives. 11 This citation, however, actually demonstrates how vital (and non-incidental) a role the Missouri River reservoirs would play in flood-control and navigation management along the Mississippi River: [T]he [Pick-Sloan] plan would effect important reduction in flood stages along the Mississippi River below the mouth of the Missouri. Thus, the proposed Missouri River Basin reservoirs, operated in coordination with the authorized purposes in the Ohio, Arkansas, and other basins would become an important and beneficial part of the flood-control system of the lower Mississippi River. Use of the stored 8 from Earl Stockdale to Steven Stockton, James Hannon, and Maj. Gen. Walsh (Nov. 9, 2012) (emphasis added). 9 Where Congress delegates authority to a federal agency to take action, that agency may not avoid action by claiming that it lacks authority. Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 532 (2007). When an agency declines to take action, it must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). 10 Pub. L. No , 58 Stat. 887 (1944) (emphasis added). 11 See from Earl Stockdale to Steven Stockton, James Hannon, and Maj. Gen. Walsh (Nov. 9, 2012). 3

7 water for multiple purposes would also improve low-water flows in the Mississippi River thereby saving considerable dredging costs for the 9-foot navigation channel. Improvement of the low water flow would assist in providing a 12-foot depth in the Mississippi River, study of which has been requested by the Committee on Rivers and Harbors of the House of Representatives. 12 Congress has always expected the Corps to administer the various rivers in a coordinated manner to manage flood-control and navigation on a national basis. The various projects are administered by region, but the impacts they have and benefits they confer were intended to and in fact do extend well beyond those regions where the reservoirs exist. Nothing in the legislation or plans that set forth the purpose of these reservoirs to aid in downstream navigation says that it should only apply to navigation on the Missouri. Stated even more simply, downstream means downstream. This conclusion is based upon the following: (a) (b) (c) (d) (e) the history of the law creating the Missouri project clearly expected that operating it for navigation meant navigation downstream of the dams, and meant both the Missouri and the Mississippi; the Corps obligations to manage the Mississippi and to manage the Missouri require that it balance both legal obligations; the Master Manual already anticipates and provides a mechanism by which the Corps may alter operations to deal with exceptional/unforeseen circumstances; the Corps has in fact managed the Missouri River System to avoid harming the Mississippi River System while still taking into account its obligations on the Missouri River System; and there is water available to help diminish harm to the Mississippi River System. The detailed explanation below demonstrates why these conclusions are correct, and why there is no legal bar that prohibits the Corps from making decisions with respect to the reservoirs on the Missouri that serve downstream navigation downstream being the Missouri and the Mississippi. There is no legal authority that prohibits the Corps from considering impacts on the Mississippi as it carries out its obligations with respect to the Missouri River. We do not request that the Corps operate the Missouri River solely to benefit the Mississippi River. We ask only that the Corps recognize the severe threat to the national economy and to national security that impaired navigation on the Mississippi River poses and adjust operation of the Missouri reservoir system to accommodate Mississippi navigation interests to the greatest extent possible without unduly impairing Missouri River interests. 12 H.R. Doc. No , at 18 (1944) (emphasis added). 4

8 (a) The history of the law creating the Missouri project clearly anticipated not harming, and in fact aiding, navigation on the Mississippi. The Flood Control Act of 1944 adopted the Pick-Sloan Plan for management of the Missouri River. 13 The Pick-Sloan Plan envisioned that the Missouri River would play a critical role in the development of national waterways. Importantly, the role of the Missouri as it relates to the Mississippi River remained paramount in the minds of those who drafted the Pick-Sloan Plan. As shown below, the enabling legislation and the planning documents supporting that legislation make clear that Congress never viewed the Missouri River in a vacuum; the Missouri River makes up one part of the larger Mississippi River Basin (indeed it is a tributary of the Mississippi), and what happens in the Missouri naturally and necessarily affects what happens in the Mississippi. As such, the Corps cannot operate the Missouri River in complete disregard of the Mississippi River. The following citations demonstrate just how interconnected Congress viewed these rivers to be and how both Congress and the Pick-Sloan Plan always considered impacts on the Mississippi when developing plans for the Missouri River. The reservoirs in the lower Missouri will be of much benefit to navigation in the Mississippi, particularly at the Chain of Rocks, where much difficulty has been experienced in the past in providing sufficient depth for navigation. 14 The retention of the silt by these means will reduce the cost of maintaining the channels in the navigation section of the Missouri River and Mississippi River below St. Louis. 15 This system would also serve to increase somewhat the minimum flows in the Missouri River, and in the Mississippi at St. Louis with some benefit to navigation. 16 The district engineer s plan for the maximum utilization of the streams of the basin in the interests of flood control, irrigation, power development, and navigation includes... a system of 7 reservoirs for the alleviation of flood conditions on the lower Mississippi [ ]; and improvements of the middle and lower river for navigation by present methods supplemented by the additional flow that could be made available by the construction of either of the Fort Peck Reservoirs, depending upon the depth of channel to be secured and to be supplemented by the Topeka Reservoir (capacity 4,200,000 acre-feet) to insure a discharge of 77,000 cubic feet per second in the Mississippi River at St. Louis Pub. L. No , 58 Stat. 887 (1944). 14 S. Doc , at 26 (1944) (emphasis added). 15 Id. at 13 (emphasis added). 16 H. R. Doc. No , at 2 (1934) (emphasis added). 17 Id. at 8 (emphasis added). 5

9 The district engineer submits a comprehensive plan... (b)... designed primarily for the alleviation of flood conditions on the lower Mississippi River.... (f) For supplying the deficiency in low-water flow in the Mississippi River at St. Louis required for satisfactory navigation, construction of the Topeka Reservoir on the Kansas River Normal operation of the [Fort Peck] reservoir for the benefit of the Missouri River navigation may be expected to increase the low water flow in the Mississippi River at St. Louis and to decrease existing low water deficiencies in the required discharge for the improvement of that river. 19 It is essential, however, that the main-stem projects be built, operated, and maintained by the Corps of Engineers,... to coordinate reservoir operation in this basin with that of other basins to obtain the maximum practical results for flood control on the Mississippi River. 20 By these proposed improvements, not only would large flood damages be prevented along the Missouri River and its tributaries and the Mississippi River, but also floodwaters would be retained for their best uses for all purposes including irrigation, navigation, power, domestic and sanitary purposes, wildlife, and recreation. Consider[ ] the large benefits... [such as] stabilization of the economic life of the valley, [T]he proposed Missouri River Basin reservoirs,... would become an important and beneficial part of the flood-control system of the lower Mississippi River. Use of the stored water for multiple purposes would also improve low-water flows in the Mississippi River thereby saving considerable dredging costs for the 9-foot navigation channel. 22 Consistent with this clear Congressional mandate, regulations were promulgated establishing the Mississippi River Control Management Board ( Board ). 23 It was explained that [i]n the past, each division office located within the Mississippi River Basin has acted as a separate entity in the operation of Corps projects with respect to downstream water releases. These releases could have an overall adverse effect on the lower Mississippi River. The establishment of this Water Control Management 18 Id. at 13 (emphasis added). 19 Id. at 20 (emphasis added). 20 H.R. Doc. No , at 3-4 (1944) (emphasis added). 21 Id. at 16 (emphasis added). 22 Id. at 18 (emphasis added) Fed. Reg. 52,236 (Nov. 7, 1978). 6

10 Board will develop and provide control over a basin-wide operating plan for Corps water activities within the Mississippi River Basin. 24 The Mississippi River Control Management Board is to serve as a forum for resolution of water control problems among U.S. Army Corps of Engineers Divisions within the Mississippi River Basin when agreement is otherwise unobtainable. 25 The regulation outlines the projects to which the regulation applies, including projects within the Missouri River Division, such as the Gavin s Point dam. 26 (b) The Corps obligations to manage the Mississippi River and to manage the Missouri River require that it balance both legal obligations and place downstream flood control and navigation on both rivers (and others) of primary importance. The dominant functions of the Flood Control Act were to avoid flooding and to maintain downstream navigation. 27 [The Flood Control Act of 1944] has been interpreted to hold flood control and navigation dominant and recreation, fish and wildlife secondary. 28 Probably the Corps should be accorded some flexibility if an unforeseen circumstance arises. 29 If, due to extreme conditions, the Corps is faced in the future with the unhappy choice of abandoning flood control or navigation on the one hand, or recreation, fish and wildlife on the other, the priorities established by the [Flood Control Act of 1944] would forbid the abandonment of flood control or navigation.... [w]e do not rule out the possibility that some more limited degree of support for flood control or navigation in the future could be held to constitute abandonment of these dominant functions Id. (emphasis added) Fed. Reg. 44,548 (Oct. 8, 1982) (codified at 33 C.F.R (n)(2)(ii)) C.F.R , Appendix E. 27 South Dakota v. Ubbelohde, 330 F.3d 1014, (8th Cir. 2003) (emphasis added). See also 33 U.S.C. 709 (tasking the Corps to prescribe[e] regulations for the use of storage allocated for flood control or navigation at all reservoirs... the operation of any such project shall be in accordance with such regulations ). 28 In re Operation of the Missouri River System Litigation, 421 F.3d 618 (8th Cir. 2005). 29 Id. at In re Operation of the Missouri River System Litigation, 421 F.3d 618, n.7 (8th Cir. 2005) (emphasis added). 7

11 (c) The Master Manual does not prevent the Corps from considering use of reservoirs for navigational benefits on the Mississippi especially where exceptional circumstances exist, and just as the Corps is bound to follow the Master Manual, so too is it bound to take into account exceptional/unforeseen circumstances. Regulations regarding the development of water control plans explain that [c]ontinuous examination should be made of regulation schedules, possible need for storage reallocation (within existing authority and constraints) and to identify needed changes in normal regulation. Emphasis should be placed on evaluating conditions that could require deviation from normal release schedules as part of drought contingency plans. 31 Each water control manual will contain a section on special regulations to be conducted during emergency situations, including droughts. Preplanned operations and coordination are essential to effective relief or assistance. 32 If the Corps was prohibited from varying its operations from the Master Manual to adjust for unforeseen circumstances, and instead was required to conform to a Master Manual that did not contemplate a given situation, the Corps would arguably violate its obligations under the [Flood Control Act] and [the Eighth Circuit s ruling in South Dakota v. Ubbelohde, 330 F.3d 1014 (8th Cir. 2003)] to properly balance river interests. 33 [T]he Corps must be permitted to vary its operations in the event that changed circumstances require it to do so, but... this discretion does not eliminate the propriety of judicial review of the lawfulness of the agency action. 34 It follows that if future circumstances should arise in which [Endangered Species Act] compliance would force the Corps to abandon the dominant [Flood Control Act] purposes of flood control or downstream navigation, the [Endangered Species Act] would not apply. 35 In addition, changed circumstances or unforeseen conditions may necessitate short-term deviations from the current water control plans C.F.R (f)(4) (emphasis added) C.F.R (i)(5) (emphasis added). 33 In re Operation of the Missouri River System Litigation, 421 F.3d at n Id. (emphasis added). 35 Id. at n.9 (emphasis added). 8

12 (CWCP). Such deviations are reviewed and approved by the Commander, Northwestern Division in accordance with ER When considering Fort Peck and Garrison Flood Control issues, the Master Manual provides that [i]f channel conditions during the winter are such that the established winter release rate assumed in prewinter scheduling is not possible, a release deviation will be implemented. The changed release rate may result in some imbalance in the amount of waterin-storage in individual System reservoirs by the following spring. This storage imbalance will favor the downstream flood control purpose, with additional evacuated storage space located in the largest downstream System project, Oahe. 37 Deviations from the CWCP. The deviations from the operational objectives presented in this Master Manual or the following year s AOP final plan are discussed during the AOP process. All significant deviations from this CWCP will be coordinated and approved by the Northwestern Division Commander, who may also coordinate with higher authority. All deviations of significance are modeled and presented to the public through the normal coordination procedures involving public press releases and World Wide Web dissemination. Minor deviations are accomplished by the RCC through coordination directly with the affected parties. 38 (d) The Corps in fact has managed the Missouri to avoid harming and to specifically benefit the Mississippi under exceptional circumstances while still taking into account its obligations on the Missouri. Just as Congress anticipated in the Flood Control Act, in 2011, record flooding in both the Missouri and Mississippi Rivers caused the separate divisions of the Corps to work together to minimize damage from flooding. During the course of that difficult effort, there was concern over potential flooding of the Mississippi as a result of operations on the Missouri. Corps personnel clearly believed they could consider the impacts of the Corps actions on the Mississippi. The following citations reflect the thought process that drove the Missouri Mainstem leadership to operate the Missouri River, in part, to aid conditions on the Mississippi River, and that recognized there is no legal bar that prohibits such action. The projected most likely flood event on the lower Ohio and lower Mississippi is likely to approach or exceed record levels. Depending on how the weather evolves in the next month - this event has the potential to reach epic proportions. Therefore we must do every single thing we 36 Missouri River Mainstem Reservoir System Master Water Control Manual Missouri River Basin at I Id. at VII Id. at VII-55. 9

13 possibly can do no matter how small or seemingly insignificant to reduce the projected maximum crest at Cairo. This includes thinking well outside our normal procedures. 39 Sir we ll look at it and see what we can do. Perhaps a middle ground would be to continue up to the 45,000 this week, and then hold until the stage at Cairo falls below 60 feet. That would allow us to do something for the Mississippi while helping out the landowners in the Nebraska City to St. Joseph reach and still getting some flood evacuation started. This would also avoid the legal argument about operating the Mainstem System solely for the benefit of the Mississippi. 40 [W]e are very sensitive to the downstream affects [sic] of these increases in release rates from Gavins Point and are monitoring the lower reaches of the system very carefully as we do. Obviously, given what is happening in LRD and MVD, we are equally concerned about the impacts to the Mississippi River. To that end, there is limited legal authority (if any) within the Missouri Basin to operate [these] reservoirs to benefit interests on the Mississippi River without invoking extraordinary circumstance and considerations of extraordinary authority at the HQUSACE level.... These citations are from a Les Edelman legal opinion, written as Chief Counsel on 17 August Does the authorizing language specifically prohibit operating the reservoirs for the benefit of the Mississippi River or prioritize the Missouri interests? I haven t seen the language but most of our reservoirs don t have any prohibition on helping areas downstream not originally envisioned as long as there are no adverse impacts to the authorized purposes. 42 I recommend we ramp up our inter-division WM coordination. Timing and marginal quantities of releases from MO Rvr and OR basin pools could be decisive. LRD WM staff provided the below info on the Mississippi River Water Control Management Board, which I recommend we invoke from Major Peabody to multiple recipients (April 24, 2011) (emphasis added). 40 from Jody Farhat, Northwestern Division, to Brigadier General John McMahon and others (April 26, 2011) (emphasis added). 41 from Brigadier General John McMahon to multiple recipients (April 26, 2011) (emphasis added). 42 from Chief, Watershed Division MVD, to Jody Farhat (April 27, 2011) (emphasis added). 43 from Maj. Gen. Peabody to Maj. Gen. Walsh and others (April 27, 2011). 10

14 In our continued efforts to assist with the Mississippi River flooding we will limit releases from Truman. 44 (e) There is water available to help avoid harm to the Mississippi. On November 5, 2012, WCI and AWO were provided a briefing by the Corps on their plan for winter releases. Based upon the information presented in that briefing, we have independently concluded that current system storage provides flexibility to increase Missouri River releases above the 12,000 cfs planned. For example, if the Corps follows the normal winter releases of 17,000 cfs over a period of four months, the impact on system storage would be approximately 1 MAF of the current storage volume of 53 MAF. We understand that system runoff (approximately 20 MAF this calendar year) above Gavins Point dam is well below normal. Yet, an impact of 1-3 MAF to maintain flows from 5,000 to 15,000 cfs above plan over the winter to maintain a 9-foot draft in the middle Mississippi while the pinnacle rocks are being removed appears to us to be an option for the Corps to consider. Conclusion The Corps has the legal authority to make decisions with respect to the operation of the Missouri that are designed to impact the Mississippi while also taking into account considerations on the Missouri. Courts have made clear that navigation is a primary purpose and takes precedence over other purposes in limited circumstances. 45 Given the Corps obligation to address navigation nationally, there is nothing in any statute that requires the Corps to ignore navigation concerns on the Mississippi or bars it from consideration of those concerns. At a minimum, the Corps must consider the technical aspects of doing so, and determine whether there are practical ways that it can address concerns in both rivers. The draft AOP does not take this into account and fails to give any consideration at all to how the proposed activities impact downstream areas that Congress specifically expected the Corps to consider. We strongly urge the Corps to delay implementing this plan to reduce flow until it considers these consequences, and evaluates what it can do in light of the severe navigational challenges on the Mississippi. At a minimum, the Corps must consider options that will not exacerbate those conditions. 44 from Chief, Water Management Section, Kansas City District, to Jody Farhat and others (May 3, 2011). 45 Ubbelohde, 330 F.3d at