DUBIOUS DECISIONS AND DOUBTFUL PRACTICES (Return to Contents)

A decade ago, Congress decreed that the Corps would have a new mission: protecting the environment. In 1990, Congress explicitly told the Corps that it must protect the environment when it plans, designs, constructs, operates, and maintains water resource projects. At least some policy makers at the highest level of the Corps understand this mission, and appear committed to it. But in ten years, the fundamental reforms needed to implement this mission have not been put in place. Without these reforms, the Corps is destined to continue to fail in its mission, fail the environment, and fail the public.

Unfortunately, there are strong and entrenched forces blocking reform. One notable example is the Corps’ unique budget process. The Corps gets much of its money project by project, with each project the favorite of one or another member of Congress. Large pots of money to construct more and more projects, and the fear of displeasing those who hold the strings to other funding, encourage the Corps to push projects forward regardless of their public worth and, most notably, regardless of their devastating environmental impacts. The Corps' review of permits for dredging and filling of wetlands is equally colored by its fear of angering those who hold the purse strings.

The Corps also is weighted down by more than a century of unfettered construction of enormously destructive projects. That culture dies hard. The autonomy accorded to Corps Districts to develop and maintain navigation and flood control projects, an autonomy intended to emphasize the "local" character of those projects, hampers efforts to change longstanding attitudes. Reform is further stymied by the Corps’ recent reorganization into "business centers" with the ultimate goal of "service and responsiveness to the customer." Unfortunately, the Corps appears to believe that big business is their ‘customer’ and successfully meeting this goal requires construction of projects regardless of their impacts. But the public is the Corps’ customer, and service to the public requires that the public interest be served.

The Enormous Cost of the Status Quo

There are a host of existing laws designed to prevent the Corps from harming the environment. Federal laws also give the Corps the authority to help remedy the environmental harm it already has caused. For example:

The Water Resources Development Act of 1990 establishes "environmental protection as one of the primary missions of the Corps in planning, designing, constructing, operating, and maintaining water resources projects." The Act further establishes "an interim goal of no overall net loss of the Nation's remaining wetlands base, as defined by acreage and function, and a long-term goal to increase the quality and quantity of the nation's wetlands, as defined by acreage and function."

The National Environmental Policy Act ("NEPA") requires that high quality environmental information be available to public officials and citizens before decisions are made and actions are taken. Thus, before it may decide whether, or how, to carry out a project — even one Congressionally authorized — or issue a permit, the Corps must understand the environmental consequences of its decision. These consequences include the direct, indirect and cumulative environmental impacts of its actions.

The Fish and Wildlife Coordination Act requires that the Corps consult with the U.S. Fish and Wildlife Service ("Fish and Wildlife") on the impacts of Corps Civil Works projects on wildlife. The Corps must give "full consideration" to any recommendations made by Fish and Wildlife for mitigating the impacts of the project on wildlife resources.

The Corps has authority under section 216 of the Flood Control Act of 1970 to review the operation of completed projects when economic and physical conditions change, and make recommendations to Congress to improve the overall quality of the environment in the public interest.

The Corps continually skirts the mandates of these, and other, federal laws designed to protect the environment. It does not properly account for the environmental consequences of its actions, and fails to design projects to protect the environment. And, the Corps rarely takes advantage of its own authority to remedy past environmental harms. The projects featured in The Costly Corps: How the U.S. Army Corps of Engineers Spends Your Tax Dollars To Destroy America's Natural Resources Costly Corps (1996) and the nine new projects discussed within this report stand witness to the Corps’ continuing flagrant disregard for the environment and the communities dependent upon it.

The Corps has been responsible for our nation’s flood control for over a hundred years. The Corps has approached that responsibility by building levees and dams, and by channelizing and ‘stabilizing’ rivers. In the process, millions of acres of wetlands and riparian areas have been lost, and many aquatic ecosystems are deteriorating as a result. Encouraged by the false sense of security provided by flood control structures, construction in flood-prone lands has drastically increased at the same time that the natural capacity of the floodplains to absorb floodwaters has decreased. As a result, despite huge public expenditures for the construction and maintenance of structural flood control projects, long-term average national flood damages have continued to rise, nearly tripling during this century.

The Great Midwest Flood of 1993 spawned a number of reports, some generated by the Corps itself, emphasizing the ineffectiveness of traditional structural flood control measures, and the need for full consideration of nonstructural alternatives. Sharing the Challenge, a 1994 report produced by the Interagency Floodplain Management Review Committee, outlined a new vision for future floodplain management: reducing flood damages by nonstructural means. Nonstructural approaches include limiting unwise development in the floodplain, removing homes and businesses at risk, and purchasing conservation easements, reforestation easements, flooding easements, or lands in fee title so that structural flood control measures are not necessary. Congress has acknowledged this need for change in the Corps' approach to flood control. As a result, it is national policy to examine, consider, and utilize nonstructural flood control measures wherever appropriate.

Unfortunately, the Corps has not fully incorporated the value of wetlands into its decision making, or shown any real interest in utilizing or even examining nonstructural flood control measures for a host of large structural flood control projects. In the Costly Corps report we featured the Mississippi Mainline Levee Enlargement, a poorly designed project to raise Mississippi River mainline levees. The Corps' plan sought to obtain "fill" or dirt for construction through destruction of 11,600 acres of bottomland hardwood forested wetlands, ignoring the significance of those wetlands in reducing flooding. The Corps agreed to avoid and minimize the impacts on wetlands, as required by law, only after local conservation groups filed suit. It is apparent that the Corps has learned nothing from its Mainline Levee experience.

In the Yazoo Backwater Pumps Project, which has been aptly described as "a boondoggle of the greatest magnitude," the Corps is proceeding with selecting its preferred alternative without having any idea of the true impacts of the project. Suggested impacts range from the Corps’ estimate of some 17,000 acres of wetlands destroyed to the U.S. Geological Survey’s estimate of well over 120,000 acres of wetlands impacted. All this to allow the Corps to pump monumental quantities of water from one side of a Corps-built flood control structure to the other side of that structure. All the alleged benefits of the Pumps could be obtained at far less cost and without a single negative environmental impact by utilizing non-structural alternatives.

In the Big Sunflower River Maintenance Project, the Corps will dredge over 104 miles of the Big Sunflower River destroying one of the world’s richest mussel beds, along with thousands of acres of bottomland hardwood wetlands. In designing this project, the Corps completely rejected the use of nonstructural measures that would have provided the same or better flood damage reduction benefits without causing a single negative environmental impact. In the process, the Corps ignored overwhelming opposition from its sister agencies and evidence of significant risks to human health from contaminated sediments.

In a similar structural approach to flood control, the Corps intends to channelize Clear Creek in the greater Houston, Texas area. If this project proceeds as planned, taxpayers will shell out $120 million to destroy the one of the few remaining natural bayous in the Houston area. The Corps has yet to seriously consider nonstructural alternatives that would be less costly, less environmentally intrusive, and capable of accomplishing all the goals of the current project, save one — opening lands within the floodplain to commercial development.

The Corps' analysis of navigation projects rarely involves an in-depth examination of the full panoply of impacts on the environment. Yet, these projects routinely destroy wetlands and other vital resources, threatening fish and wildlife populations and the local communities dependent upon them. Wetlands help reduce erosion, act as water filtration systems, reduce flooding, buffer storm surges, and provide essential habitat for numerous species of fish and wildlife, many of which form the basis of local economies. The destruction of these wetlands deprives local communities of those ecological benefits. The Corps frequently ignores the potentially devastating long-term impacts of their navigation projects in order to justify costly and often economically unjustifiable projects. And, once the Corps has constructed a navigation channel it is loath to close it.

The Costly Corps featured the Lower Laguna Madre and Gulf Intercoastal Waterway, where the Corp's maintenance dredging of a little used segment of the waterway threatens one of the three hypersaline bays in the world, and the source of fifty percent of the commercial catch of finfish in Texas. The Corps' continuation of maintenance dredging, particularly their methods for disposal of dredge spoils, threatens viable commercial and recreational fishing, recreation, and tourism that contribute $250-400 million per year to the regional economy. Despite the obvious environmental and potential economic impacts of this project, the Corps agreed to start a supplemental EIS only after having been taken to court and, after 3 years, have yet to complete that analysis.

We also showed how the Corps totally missed the boat in estimating the environmental destruction associated with construction, operation and maintenance of the Mississippi River Gulf Outlet, a navigation short cut to New Orleans completed in 1968. The channel when constructed measured only 650 feet wide. Vessel traffic eroded its banks, more than doubling its average width between 1968 and 1987 and destroying over 4,200 acres of highly productive marsh. In 1999, faced with predictions that continued operation of the channel would result in the destruction of another 2,700 acres of coastal marsh between the year 2000 and 2050, the Corps finally conceded that the Mississippi River Gulf Outlet should be closed. Sadly, much of the destruction could have been avoided had the Corps earlier taken more seriously the public concerns over the environmental impacts of the project. Again, the Corps has learned nothing from this debacle.

Take for example another project that should no longer be maintained, the Apalachicola Navigation Channel. Keeping this channel open has created an economic and natural resource disaster. Few barges use this reach of the Apalachicola River, and despite yearly dredging, the Corps can only keep the channel open about 56 percent of the time. Annual maintenance dredging has severely impacted the river bank and floodplain habitat of the Apalachicola, which is one of Florida's largest and richest rivers. Only after intervention by the State of Florida and significant pressure from Florida’s Senator Graham has the Corps shown any inclination to pursue less destructive methods for keeping the channel open, methods that the Corps concedes will increase the costs to maintain this already economically unjustifiable channel.

The Corps is also proceeding with construction of an Access Channel for a Port Facility at Jackson, Alabama. The project will result in the destruction of bottomland hardwood forests, riverine hardwood swamps, and finger lakes. The Corps has failed to analyze less destructive alternative sites and is ignoring the secondary and cumulative impacts of the project. Additionally, its mitigation scenarios fail to fully account for the value of the site for fish and wildlife.

The NEPA requires that the Corps complete a single, comprehensive analysis whenever several proposed projects will have a cumulative impact upon a region. Yet, the Corps regularly skirts the mandates of NEPA, routinely ignoring the totality of impacts to the watershed or region associated with all planned Corps projects. The Corps' avoidance of the requirements of environmental law in the context of its Civil Works mission is nowhere more apparent than when more than one Corps project is being pursued within a single watershed or region.

A particularly egregious example of the Corps' failing in this regard is found in the White River Basin in Arkansas. The Corps is looking at a whole series of Civil Works Projects that potentially could destroy one of the few remaining intact bottomland hardwood forests systems of any size left in the lower 48 states. These projects also threaten the integrity of two of the largest national wildlife refuges in the United States. The main beneficiaries of these projects are a few private shipping interests who seek cheaper transportation, and a small group of farmers who have drained a local aquifer and now seek a new source of water to irrigate their crops. The project's main losers are the millions of waterfowl and migratory songbirds, and the numerous other species dependent upon this wondrous resource. The loss of these resources also threatens recreational hunting, and recreational and commercial fishing industries that contribute millions of dollars each year to the local economy. Appallingly, the Corps is refusing to fully consider the combined impact of all actions presently planned in the Basin on this unique resource.

The Corps' sidestepping of important environmental considerations is not limited to its Civil Works activities. It also pervades their issuance of permits to destroy wetlands under Section 404 of the Clean Water Act. Though the law clearly requires the Corps to deny permits when there are practicable alternatives that have less adverse impact to wetlands, the Corps rarely does so. These permits are routinely granted without the Corps having bothered to examine the indirect, secondary, and cumulative impacts of their permitting decisions as clearly required by the Section 404(b)(1) Guidelines governing issuance of such permits, and NEPA. Instead, the Corps often treats each permit application in isolation, regardless of the number of similar permits issued or pending in the same watershed or geographic location. By refusing to consider individual permits within the context of the overall development in an area, the Corps avoids having to analyze the secondary and cumulative impact of the totality of permits issued, and avoids being faced with unequivocal evidence demanding denial of a permit.

Casino development along the Mississippi Gulf Coast is an excellent case in point. Since the early 1990s, the Corps has issued virtually every requested permit for casino projects in Mississippi's coastal wetlands. Most recently, the Corps issued permits for the Circus Circus Project and Casino World Project in Bay St. Louis; and the Royal D'Iberville Casino Project on the Back Bay of Biloxi. Each of these projects includes construction of enormous casino and hotel complexes in virtually pristine wetland areas. In issuing each permit, the Corps found that the individual project under consideration would not significantly impact the environment. Yet, this conclusion was held only by the Corps. The U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, and the public all called for a programmatic environmental analysis of the indirect, secondary, and cumulative impacts of the rampant coast-wide development. Though the Corps reluctantly agreed to undertake an environmental analysis for the Destination Broadwater Casino Project — where the applicant sought permission to build a virtual Disney World of six casinos, six hotels, amusement park, marina, and golf course requiring construction of an island in the Mississippi Sound — it continues to ignore calls for a comprehensive environmental analysis of impacts associated with all casino development in coastal Mississippi.

Rampant permitting in the Econlockhatchee River Basin in Florida is a striking example of the Corps’ piecemeal approach to permitting decisions, and a particularly disturbing example of the Corps stubbornly creating a disaster waiting to happen. Over 25 years ago, the Corps made an express finding that the floodplains of the Econlockhatchee River Basin must be left largely undisturbed if future flooding problems were to be avoided. However, the Corps ignored its own advice, and proceeded to issue a host of permits for residential subdivisions and commercial development. The Corps made no effort to reevaluate its earlier finding, or to evaluate the environmental ramifications of the permits in light of the increased development in the Basin. As a result, the natural flood capacity of the Basin is being destroyed, ever more people are moving into harms way, and communities are increasingly at risk of flooding.

References for Dubious Decisions And Dubious Doubtful Practices

1. Water Resources Development Act, 33 U.S.C. § 2316(a)(1990).

2. See e.g.  U.S. Army Corps of Engineers Engineering Circular, EC 10-1-58 (January 11, 1999); U.S. Army Corps of Engineers, Engineer Update, Vol. 23, No. 3, p. 8 (March 1999).

3. 33 U.S.C. § 2316(a).

4. 33 U.S.C §2317(a)(1) (     ).

5. 40 C.F.R. §§ 1501.2, 1502.1.

6. 40 C.F.R. §§ 1502.1, 1501.2.

7. 40 C.F.R. §§ 1508.9(b), 1508.27(7).  The Corps’ own regulations implementing NEPA, which supplement the Council on Environmental Regulations, also require consideration of indirect and cumulative impacts.  33 C.F.R. §325, App. B ¶ 7(b)(3).  Indirect effects are those effects that although caused by the action, are later in time or farther removed in distance, but are still reasonably foreseeable.  40 C.F.R. § 1508.8(b).  Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population growth, and related effects on air and water and other natural systems, including ecosystems.  Cumulative impacts are those impacts on the environment that result from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (federal or non-federal) or person undertakes those other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.

8. 16 U.S.C. § 662 (1958)

9. P.L. 91-611 (1970).

10. See generally   National Wildlife Federation, Higher Ground: A Report on Voluntary Property Buyouts in the Nation's Floodplains (1998).

11. See, e.g,. U.S. Army Corps of Engineers, Floodplain Management Assessment of the Upper Mississippi River and Lower Missouri Rivers and Tributaries (1995); University of Minnesota, “Recovery and Resettlement” (a post 1993 Great Flood report); Report to Congress by the Secretary of the Interior, Impact of Federal Programs on Wetlands Impact of Federal Programs on Wetlands (1988).

12. Report of the Interagency Floodplain Management Review Committee to the Administration Floodplain Management Task Force, Sharing the Challenge: Floodplain Management in the 21^st Century (1994).

13. In the Water Resources Act (hereinafter "WRDA) of 1999, Pub. L. 106-5  (signed into law April 17, 1999). Congress authorized $200 million in spending over 5 years for a Corps Hazard Mitigation and Riverine Ecosystem Restoration Initiative, referred to a "Challenge 21."  WRDA 1999 also adjusted the Corps' benefit/cost analysis of nonstructural alternatives to allow consideration of flood damages avoided when determining the benefits of nonstructural projects. Finally, WRDA 1999 allows federal funding for nonstructural projects to be made available to local communities at the outset of project construction, and allows previously authorized but unconstructed projects to incorporate nonstructural features in light of the new benefit/cost rule changes.

14. Memorandum from Franklin D. Raines, Director, Office of Management and Budget and Kathleen A. McGinty, Chair, Council on Environmental Quality to Federal Agencies re:  Floodplain Management and Procedures for Evaluation and Review of Levee and Associated Restoration Projects (February 18, 1997) (hereinafter “1997 Guidance”).  While the 1997 Guidance was issued to assist the floodplain and levee restoration projects necessitated by the floods of 1996 and 1997, because it embodies the lessons learned and policies established over the past four years, its mandates also must be applied to the selection and implementation of new, non-emergency, flood control measures.

15. Gulf Restoration Network and Earthjustice Legal Defense Fund (formerly Sierra Club Legal Defense Fund), The Costly Corps: How the U.S. Army Corps of Engineers Spends Your Tax Dollars To Destroy America's Natural Resources, p. 37 (1996)(hereinafter the "Costly Corps").

16. David Quammen, “Backwater Boondoggle,” Audubon, January-February 1998, at p. 100 (quoting Ralph Pearce, U.S. Forest Service).

17. Mike Hightower, The Functions and Values of Wetlands.  Texas A & M Sea Grant College Program and Texas General Land Office  (April 1993)

18. Costly Corps, at p. 30.

19. Id. at p. 20.

20. Kleppe v. Sierra Club, 427 U.S. 390, 413 (1976).  Federal regulations also require an analysis of cumulative impacts. See e.g. 40 C.F.R. §§ 1508.9(b), 1508.27(7); 33 C.F.R. § 325, App. B ¶ 7(b)(3). Cumulative impacts are those impacts on the environment that result from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (federal or non-federal) or person undertakes those other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. See generally 40 C.F.R. § 1508.25(a)(2).

21. 40 C.F.R. § 230.10.  In 1998, the Corps nationally denied only 3.2 percent of the submitted to it for review. The various districts of the Corps vary in their rate of denials. For example, in 1998, the Vicksburg District did not deny a single permit,  the New Orleans District denied 0.2 percent, the Jacksonville District denied 1.6 percent,  the Memphis District denied 5.8 percent, and the Mobile District denied 8.2 percent. See Public Employees for Environmental Responsibility, Army Corps Wetlands Report Card (1999).

22. 40 C.F.R. Part 230.  Despite the word “Guidelines” in their name, the conditions of the Section 404(b)(1) Guidelines are mandatory, and must be followed.  As the Guidelines make clear, it is a fundamental precept that no Section 404 permit may be issued “unless it can be demonstrated that such a discharge will not have an unacceptable adverse impact either individually or in combination with known and/or probable impacts of other activities affecting the ecosystems of concern.”  40 C.F.R. § 230.1(c).

23. NEPA recognizes that a federal action, including federal permitting decisions, can be significant, in its own right or may be significant if the action is related to other actions the impact of which alone may be considered insignificant but that together have significant impacts.  The courts have held that "when several proposals for . . . actions that will have cumulative or synergistic environmental impact upon a region are pending concurrently before an agency, their environmental consequences must be considered together.  Only through comprehensive consideration of pending proposals can the agency evaluate different courses of action." Kleppe v. Sierra Club, 427 U.S. 390, 409 (1976).  See also  Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir. 1998) (holding that five timber sales that raise “substantial questions” that they will result in significant environmental impacts required to be addressed in a single EIS); N.R.D.C. v. Hodel, 865 F.2d 288, 297-300 (D.C. Cir. 1983) (holding that EIS must address inter-regional impacts on migratory bird species from off-shore oil and gas leasing activity).