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U.S. Circuit Court of Appeals

U.S. Army Corps of Engineers civil works controversies

Many of the Corps of Engineers' civil works projects have been characterized as being riddled with patronage (see pork barrel) or a waste of money and resources (see boondoggle (project)) such as the New Madrid Floodway Project and the New Orleans flood protection. Projects have allegedly been justified based on flawed or manipulated analyses during the planning phase. Some projects are said to have created profound detrimental environmental effects and/or provided questionable economic benefit such as the Mississippi River Gulf Outlet in southeast Louisiana. Faulty design and substandard construction have been cited in the failure of levees in the wake of Hurricane Katrina. Reforming the Corps' way of doing business has been championed by Senators Russ Feingold and John McCain. One of the difficulties of making changes, however, is the political process itself.

Corps of Engineers projects can be found in all fifty states , making its budget and project authorizations ripe for earmarks and other pork. Under the provisions of the US Constitution, Article I, Sec 9, "No Money shall be drawn from the Treasury but in Consequence of an Appropriation made by Law." Therefore, Corps projects are either authorized specifically or as part of a Congressionally authorized category of projects. Many times, local citizen, special interest, and political groups lobby Congress for authorization and appropriations for specific projects in their area (See "Skewed Priorities" in ). Depending on the point of view of any debate on these projects, they may or may not be considered sound from an engineering standpoint (see below). Whether or not USACE planners and engineers actually do the best they can with what they are directed to do is part of the controversy.

New Orleans flood protection

In New Orleans after Hurricane Betsy flooded large sections the city in 1965, Congress mandated that the US Army Corps of Engineers become the sole agency responsible for levee design and construction. This is defined in the Flood Control Act of 1965.

In August 2005, forty years later, when Hurricane Katrina passed to the east of New Orleans, the Corps's flood protection failed catastrophically with levee breaches in over 50 places. The levee failures caused massive flooding in New Orleans with associated property loss and drownings. This was the first total failure of a USACE system. On August 29, 2005, the hurricane protection authorized 40 years earlier was between 60-90% complete and the projected date of completion was estimated to be 2015. In June 2006, Lt. Gen Carl Strock, Corps commander and Chief of Engineers accepted responsibility for the failure of the flood protection, calling it "a system in name only." Faulty design specifications and incomplete or substandard construction of levee segments contributed to the failure of the flood protection.

In April 2007, the American Society of Civil Engineers (ASCE) began referring to the flooding as the worst engineering catastrophe in US history. Two months later, a report released by an investigative team convened by the ASCE stated that two thirds of the deaths would have been avoided had the levees held.

A grassroots group levees.org in New Orleans is claiming that the levee investigation conducted after the New Orleans flooding lacks credibility because the study was managed by the Corps of Engineers which is also the agency responsible for the levee design and construction. They believe an expert review panel convened by the American Society of Civil Engineers (ASCE) to certify and validate Corps' self-critique was also a conflict of interest because the corps directly paid the ASCE and awarded all the panel members medals.

Further, in October 2007, Dr. Ray Seed, a well-known engineer and ASCE member submitted an ethics complaint to the ASCE alleging that the Corps of Engineers colluded with the ASCE to minimize the Corps' mistakes in the flooding and to intimidate anyone who tried to intervene. The Corps has acknowledged receiving a copy of the letter but has refused to comment until after the ASCE comments.

A report released on September 12, 2008 has bolstered levees.org's claims. Led by retired congressman Sherwood Boehlert NY-R, the report issued a long list of criticisms on how the ASCE conducts its peer reviews, most notably the inadequate "consideration of real or perceived conflict of interest." All the criticisms of ASCE's peer reviews are evident in the ASCE's peer review of the corps of engineers' self critique.

Legal Issues

In March 2007, the City of New Orleans filed a $77 billion claim against the USACE for damages sustained from faulty levee construction and resultant flooding during Hurricane Katrina. Of this amount, only $1 billion was designated as direct "infrastructure damages"; the rest was attributed to consequential damages such as industry losses and the city's tarnished image. Hundreds of thousands of individual claims were received in the New Orleans branch office of the USACE. In addition to the City of New Orleans, other claimants include Entergy New Orleans, the city's now-bankrupt electric utility, and New Orleans Sewerage and Water Board.

In February 2007 U.S. District Court Judge Stan Duval ruled that this act did not apply to cases involving navigational projects. He ruled that the Corps may be sued over defects in its Mississippi River-Gulf Outlet navigation channel. Immunity in cases involving flood levees was apparently not addressed at that time.

On January 30, 2008, despite a "stinging rebuke" of the Corps of Engineers, Judge Duval dismissed a class action lawsuit filed against the Corps of Engineers for levee breaches after Hurricane Katrina, citing the Flood Control Act of 1928, which protects the federal government from lawsuits when flood control projects like levees break. He relied on 1986 and 2001 Supreme Court rulings that found the law "provides immunity where, as here, a flood control project fails to control floodwaters because of the failure of the flood control project itself." Duval's decision leaves the New Orleans Sewerage & Water Board and Orleans Levee District as defendants in the lawsuit. The lawsuit led to about 489,000 claims by businesses, government entities and residents, seeking trillions of dollars in damages against the Corps. The fate of many of those claims was pinned to the suit and a similar one filed over flooding from a navigation channel in St. Bernard Parish. It was unclear how many claims could still move forward. The plaintiffs vowed to appeal to the 5th U.S. Circuit Court of Appeals.

Water Supply Issues

Army involvement in works "of a civil nature," including water resources, goes back almost to the origins of the U.S. Over the years, as the Nation's needs have changed, so have the Army's Civil Works missions. Water resources controlled by the Corps of Engineers are used for navigation, hydroelectric power generation, and recreation as well as water supply. The Corps first got involved in water supply in the 1850s, when they built the Washington DC aqueduct. Today USACE reservoirs supply water to nearly 10 million people in 115 cities. In the drier parts of the Nation, water from Corps' reservoirs is also used for agriculture.

Georgia, Alabama, and Florida have been wrangling over how to allocate water from the Chattahoochee watershed for years as metro Atlanta's population has doubled since 1980. In October 2007, the governor of Georgia, Sonny Perdue, indicating an impending crisis with the water supply from Lake Lanier, declared a state of emergency and confirmed that the state would sue the US Army Corps of Engineers who administers the water supply for Atlanta. The Corps acknowledged that they made a mistake in 2006 when they relied on a faulty gauge to measure Lake Lanier's level by nearly two feet. This mistake led to an overestimation of the amount of water that left in the lake and the Corps accidentally released about 22 billion gallons of water: enough to supply metro Atlanta's needs for about a month and a half. However, USACE's analysis of the situation differed from the Governor's. The Army Corps of Engineers, however, presented a different assessment, indicating that even without rain for nine months, water supplies would still be adequate. The corps sent a letter to Perdue assessing the situation and pointing out that they are "not going to run out [of water] any time soon," In mid-November 2007, the Corps made adjustments to its water retention policies to keep more water in the Chattahoochee watershed. The U.S. Fish and Wildlife Service expedited its study of an interim drought plan submitted two weeks ago by the U.S. Army Corps of Engineers, and concluded that freshwater mussels and sturgeon in Florida and Alabama -- kept alive by water from Georgia's Chattahoochee watershed under federal law -- will not be jeopardized under the plan. The governors of the three states indicated that they would continue to meet and negotiate.

Other states and tribal nations have also been involved with or had concerns about how the Corps manages water supply, to the extent that Congress or the courts have often gotten involved in trying to mediate disputes.

Wetlands Jurisdiction

One of the major responsibilities of the Corps of Engineers is administering the wetlands permitting program under Section 404 of the Federal Water Pollution Control Act of 1972. (aka "The Clean Water Act"). This Act authorized the Secretary of the Army to issue permits for the discharge of dredged and fill material.

Section 10 of the Rivers and Harbors Act of 1899 (codified in Chapter 33, Section 403 of the United States Code) gave the Corps authority over navigable waters of the United States. As navigable waters are defined as "navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently being used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce", the Corps has broad authority to enforce this, including licensing of bridges over navigable waters, and the maintenance of pierhead and bulkhead lines.

There is some disagreement over the extent of the Corps' reach into the wetlands, whether USACE or the US Environmental Protection Agency (EPA) should have jurisdiction, and how the wetlands should be regulated. Often, it is difficult to describe the problem or make jurisdictional determinations. Many times, people are frustrated because the process isn't transparent or easy. In some cases, it appears that Corps (and EPA) regulators are searching for excuses to justify decisions in allegedly difficult circumstances.

The US Supreme Court has addressed environmental regulation by the Corps of Engineers three times in the last two decades. In 1985, the Supreme Court ruled 9-0 that the Clean Water Act extended to wetlands adjacent to open waters. They left open the question about wetlands not adjacent to Federal waters (United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985)). In 2001, the Court further decided 5-4 that the CWA does not cover areas that had filled with water (Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159 (2001)). The Corps of Engineers had claimed authority over the site by saying that migratory birds used the pond as habitat but were overruled by the Supreme Court because they were claiming powers not granted by Congress by attempting to extend its jurisdiction to ponds with no connection to navigable waters.

The Court's most recent ruling was in June 2006 in Rapanos v.United States. At issue was the way the Federal government regulates the nation's wetlands under the Clean Water Act. The law has been contentious with property owners because it requires a permit for filling and dredging wetlands that empty into navigable waters and their tributaries. Developers have long challenged the Corps' right to regulate wetlands that are not free-flowing into navigable waters. Narrowly avoiding gutting of the Clean Water Act, the Supreme Court voted 5-4 to send the case back to the lower courts for a ruling.

Chief Justice John Roberts wrote, "It is unfortunate that no opinion commands a majority of the court on precisely how to read Congress' limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis."

Wetlands jurisdiction by the Corps of Engineers will, for the foreseeable future, remain contentious.

Beach renourishment

The beach nourishment work by the Corps of Engineers is another area of controversy since the temporary replenishment of beach sand is extremely expensive and profitable. The reasons for beach nourishment are often misunderstood. USACE beach nourishment projects are authorized under Section 111 of the 1968 Rivers and Harbors Act (P.L. 90-483 as amended by Sec 940, WRDA '86(P.L. 99-662)) as mitigation for the damage caused by Federal navigation projects interrupting the littoral flow of beach material along shorelines. These laws require that authorized project be cost-shared; and the Federal share of costs for any one project may not exceed $2 million. Many people believe that it is only done for the benefit of well-heeled adjacent land-owners rather than for erosive or littoral purposes. One lobbying firm, Marlowe & Company, charges 40 clients $40,000 each just to lobby for continued support for this controversial effort to save beaches. Many homeowners are disgruntled with the huge annual costs associated with this temporary fix; typical fees are $2,000 per month for a 3 bedroom beachfront condominium (such fees are most probably locally authorized since the Corps of Engineers does not assess fees because of the nature of its Congressionally-approved funding). However, many coastal residents are not willing to pay the price. For example, in 2001, the Corps authorized a proposal for a 14-mile-long, $94 million project in Nags Head, N.C. In an attempt to fund the local share of the project, local county commissioners passed a 1 percent sales tax; voters rejected it. Nags Head officials proposed a cheaper, locally funded plan. Again, voters rejected it. "Why," asked WCU program director Rob Young, "should federal taxpayers bail out a beachfront when local residents won't?"

Calls for Corps reform

Some in Congress feel that reforms are necessary in the way the Corps operates. The Corps has been criticized as being mismanaged and lacking oversight and accountability, especially since Hurricane Katrina and the failure of the Army Corps built levees in New Orleans.

Senator Russ Feingold and Senator John McCain pushed to establish two amendments; one an independent review of Corps projects from planning and design to construction, and a second that would require that Corps projects be ranked in importance based on national priorities. They succeeded in adding the peer review of corps projects to the Water Resources Development Act in 2006.

In August 2007, Senator Feingold himself tried to block passage of the bill because he felt the reforms it contained would not do enough to change the way the Corps does business.

“After a decade of government and independent reports calling for reforming the corps and pointing out stunning flaws in corps projects and project studies, and after the tragic failures of New Orleans levees during Hurricane Katrina, the American people deserve meaningful reform,” Mr. Feingold said in a speech on the Senate floor. “How many more flawed projects or wasted dollars will it take before we say enough is enough?”

Calls for reform go back decades; most recent attempts at reform have been made in the 106th, 107th, 108th, and 109th Congresses. But as Senator Feingold indicated by quoting the Times-Picyane: "'Unfortunately, not everyone in Congress is interested in changing the way the corps does business. The McCain-Feingold amendments face opposition and a rival set of measures by the main authors of the water resources bill, Sens. James Inhofe and Kit Bond. ... Sham reform won't do anything to restore confidence in the corps, and Congress must do better.'" As indicated by Sen Feingold's vote against WRDA 2006, which did contain some attempts at reform, the way forward is far from clear.

On October 25, 2007, the Water Resources Development Act arrived on the President's desk. President Bush had 10 days to sign the bill, veto it or let it become law without his signature.

References

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