Corraling the Corps of Engineers

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The Mississippi River floodplain was once the largest wetland in North America. Regular overflow from the river provided essential habitat for fish and wildlife. Over time, however, the Army Corps of Engineers (“Corps”) has drained over 90% of the floodplain from the river. In the latest chapter of the Corps’ assault on the Mississippi, the Corps sought to build a $112 million levee and pump to wall off and drain the last significant part of the floodplain that remained connected to the river in Missouri. On September 17, District Court Judge James Robertson pulled the plug on the Corps’ plans.

Judge Robertson’s decision involved two proposed flood-control projects. The first would close a quarter-mile gap in the levee around the New Madrid Floodway, a gap which fish currently use to access tens of thousands of acres of floodplain during high water. The second would install two massive pumps and widen local streams to remove water from the Floodway and the adjacent St. Johns Basin. The St. Johns Bayou-New Madrid Floodway Project would affect as many acres of wetlands as are affected by all the permits the Corps grants to private businesses each year.

The Corps claimed the project would improve production of cotton and soybeans by allowing fields to be planted earlier in some years. Yet this land is already productive after winter or spring flooding, and local landowners were unwilling to pay even one-quarter of the project costs. Moreover, the federal government is already spending millions of dollars to restore similar habitat elsewhere in the country.

The Corps sought to override the requirement that local landowners contribute local funds by promising residents that the project would “eliminate” flooding in the impoverished town of East Prairie. Enticed by this prospect, East Prairie agreed to use its federal economic development aid to pay its share for much of the project. Yet, agency documents reveal that, even with the project in place, East Prairie would continue to flood about once every ten years – as often as it does today. The Corps further conceded that it could eliminate flooding in East Prairie at about one-tenth the cost by simply improving drainage ditches from the town and building a small bypass channel for a local stream. Yet, the Corps rejected this simple proposal, insisting it was not cost-effective. Once East Prairie dedicates its limited federal aid to the project, the town will not have any funds to implement a more effective alternative.

Fortunately, a project of this size triggers environmental safeguards, which prevent such consequences from going unnoticed. The National Environmental Policy Act requires that the Corps accurately describe environmental consequences in an environmental impact statement. The Clean Water Act requires that the Corps fully mitigate harms and select the least environmentally damaging, practical alternative.

Do the math

For years, the Corps claimed it could fully mitigate for lost habitat on tens of thousands of acres by planting trees on only 8,375 acres of already inundated cropland. This claim was based on a fundamental math error. Although the Corps’ fish biologist acknowledged the error, the agency itself did not admit its mistake for two years, only days before a critical court hearing. In fact, the Corps’ own calculations revealed that the agency would need to set aside 3-15 times more land, depending on flooding frequency. To proceed, the Corps would have to provide this additional mitigation, while barely increasing costs.

The Corps did so with a magic pen. It had always planned to leave a small area of wetlands undrained. The Corps claimed it could extend flooding on these wetlands, from an average of 20 days per year today to a maximum of 32 days, by closing levee gates after spring flooding to trap water. According to the Corps, this change would transform these wetlands into “permanent” water bodies, which were assigned a much greater habitat value under the Corps’ analysis. In fact, the new wetlands would flood only seasonally and only some years. In addition, the Corps’ “mitigation” would separate the river from the floodplain, preventing Mississippi River fish from accessing the floodplain whenever it was flooded.

The District Court condemned the Corps’ approach, stating: “The Corps has obviously worked backwards from the mitigation dollars it could afford, tweaking several of its original, fundamental understandings of its mitigation obligations” to make it appear economically viable. In short, the Court concluded, “the Corps has demonstrated its willingness to do whatever it takes to proceed with this project – change definitions, abandon core assumptions – even if its means ignoring serious environmental impacts.”

Unfortunately, the St. Johns Project is not unique. The National Academy of Sciences, Government Accountability Office (GAO), Army Inspector General, and esteemed scientists has repeatedly revealed egregious flaws and biases in many of the Corps’ environmental and economic analyses. A 2006 GAO report concluded that each of the Corps studies it considered were “fraught with errors, mistakes, and miscalculations, and used invalid assumptions and outdated data.” Due to these and other findings, in September Congress passed the Water Resources Development Act, which includes reforms to make the Corps more accountable for mitigating damages and providing for independent review of costly and controversial Corps projects.

There are signs that the Corps may pursue a new approach. For example, in coastal Louisiana and coastal Mississippi, the Corps is pursuing plans to reduce the need for large levees by restoring protective wetlands and implementing programs to storm-proof, elevate, and relocate vulnerable properties. The Corps also recently determined that continued maintenance and operation of the wetlands-destroying Mississippi River Gulf Outlet was not cost-effective, and that the channel should be closed and its environmental damage remediated.

Reforms and a new perspective may prevent the Corps from “cooking the books” in the future, but may not stop the resurrection of the St. Johns Bayou-New Madrid Floodway project. The Department of Justice filed a notice of appeal to avoid missing a deadline, although it is still not clear whether they will actively appeal the decision. Moreover, even absent an appeal, the project’s backers in Congress may try to keep it alive. Senator Kit Bond (R-MO) has attempted to circumvent the decision by inserting a provision in the Senate Energy and Water Appropriations declaring the project to be “economically justified and environmentally acceptable” and instructing the Corps to construct it regardless of whether it complies with the Clean Water Act and National Environmental Policy Act. Environmental Defense and a number of other environmental organizations have so far been successful in convincing Congress to reject Senator Bond’s rider and preserve the integrity of the judicial decision, but it remains to be seen whether this bad project will stay dead and buried.