Farmers taking flooding worries to court

May 13, 2014, 6:30 a.m. ·

Scott Olson of Tekamah, Neb. stands along the edge of his field that was flooded in 2011. Most of the field can be farmed, but parts may never be reclaimed after the river replaced fertile topsoil with fine, sandy silt. (Photo by Grant Gerlock, NET News/Harvest Public Media)

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The Missouri River burst out of its banks in epic fashion three years ago. The flood covered thousands of acres of land and dredged up old debates about how the river should be run. Now, flooded landowners are suing the Army Corps of Engineers, saying the agency isn’t protecting their land.

The river landowners want compensation for damage to their land and assurance they’ll be protected from floods in the future. The lawsuit claims floods have been more frequent and severe along the Missouri in the last seven years, since the Corps of Engineers began widening portions of the river. The Corps controls the river, and they’re in the midst of a project to restore sandbars and shallow water habitat for endangered birds and fish.

The Army of Corps of Engineers says it won’t comment on pending legislation, but Dan Boulware, an attorney representing the landowners, says the Corps is prioritizing endangered species over farmers.

“Congress made a decision to tame the river and to have people move in and create new farmland and the Corps did a magnificent job of doing that,” Boulware said. “Now what they’re doing, they’re taking the river back.”

He says landowners want the Corps to keep the river in its designated channel, and keep the channel contained.

Leaving its mark

The flood of 2011 was the largest on the Missouri River in more than 50 years and the largest water runoff event in the basin in recorded history.

Miles of farmland in Nebraska, Iowa, Missouri and Kansas were under water. Rich topsoil washed away. In some places, the river carved craters big enough to bury a tractor and other parts were covered by three-foot drifts of sand, like snowbanks after a blizzard.

Landowners like Scott Olson believe the Army Corps of Engineers is deliberately allowing the river to reclaim land that was developed after the Missouri was straightened and channelized. (Photo by Grant Gerlock, NET News / Harvest Public Media)

Since the flood of 2011 this river bank at the edge of Olson’s farm field has looked more like a sand dune. (Photo by Grant Gerlock, NET News / Harvest Public Media)

This photo from 2012 shows how the river carved enormous craters as the flood waters receded. (Photo by Grant Gerlock, NET News / Harvest Public Media)

At his farm near Tekamah, Neb., Scott Olson is still recovering from the damage. For 100 days, 500 acres of the Olson family’s farmland was under water.

Back in the spring of 2012

, Olson described the flood’s aftermath.

“Everybody said it looked like being on the moon,” Olson said. Now, three years after the flood, Olson and other affected farmers are trying to cope.

“Everything I knew about farming this piece down here we’ve kind of had to throw out the window and start all over again because everything’s different down here,” Olson said as he drove through his fields toward the river.

Olson is still moving sand off of some 40 acres that used to be fertile farmland. He can plant the rest of the field, but it’s not back to normal.

Turning the channel

The Corps of Engineers is in charge of the Missouri River. It controls the dams and reservoirs that can help control floods or keep the water flowing.

“They’ve slowed the water down,” Boulware said. “They’ve spread it out and they’ve changed the way the river drains.”

But protecting land adjacent to the river is just one of the Corps’ mandated river management goals. It’s also responsible for supplying water in upriver reservoirs for recreation, monitoring water quality, securing a steady water supply for riverside communities and power plants, and maintaining a navigation channel for barge shipments.

“The channel is part of the problem,” said Paul Lepisto, a river conservationist with the Izaak Walton League. “The channel is not part of the solution.”

Lepisto says the Corps has a responsibility to reserve space for endangered species. And he says landowners are better off because widening the river to make habitat gives floodwater a place to spread out. That takes pressure off of the levee system. But in the end, the floodplain is a risky place to be.

“There’s a false sense of security that the navigation channel and levees that have been put up provide a measure of protection,” Lepisto said. “2011 showed that the river is still the river and that the river is still boss.”

Losing ground

Landowners feel like they’re losing out to environmental interests on the river. Robert Schneiders, who has written about the history of the Missouri, says the lawsuit is a way for farmers to guard their turf.

“They have taken a very hard-line, bar-none approach,” Schneiders said. “They do not want one acre going to habitat restoration and true, natural flood control.”

Even though there have been major floods before – in 1952 and 1993, in particular - Schneiders says the flood of 2011 seems to have convinced farmers they can’t count on the Corps to put their priorities first.

“Farmers oppose river restoration because they are fearful that they will have to forfeit land to the projects - and thus they and the counties south of Sioux City (Iowa) will lose both income and tax revenue,” Schneiders said.

But it’s not clear the current lawsuit will provide the security landowners are after. Sandra Zellmer, a water law expert at the University of Nebraska-Lincoln, says history is against them. Similar lawsuits in the past have failed.

“Every single one of them except for one significant case has lost -- the landowner has lost,” Zellmer said.

In the one exception, the Supreme Court found the Corps didn’t follow its own Master Manual for river management. Zellmer says that doesn’t look like the case in this instance and the Corps was authorized to manage the river the way it did.

“There’s really no evidence that they departed from the Master Manual and certainly no evidence that they departed from those authorized purposes, of which flood control is only one,” Zellmer said.

That suggests the court case may be a challenge for landowners, but the lawsuit is not only a legal challenge it’s also a political appeal.

Gaining attention

Where Scott Olson’s land meets the Missouri River, a bank of sand rises from the water giving the impression that you’re standing in a desert oasis or on some remote beach property. It’s one of the features left by the flood that will probably never be repaired.

Whether landowners win or lose their lawsuit, Scott Olson hopes the case captures the attention of Congress and renews the political debate over how the river is managed.

“The past I suppose I can live with. I don’t have much choice,” Olson said. “But the future of not knowing what this river is going to do or what they’re going to do with the river. The future of my land, whether I can pass it down to my children or not. It means a lot.”

What Olson and other farmers aren’t sure about, and what they really want to know, is what will happen next time the water starts to rise.