Alan Journet, Trail of Tears Group Conservation Chair
In 2003, the Ozark (Missouri) Sierran published a series of articles on the St. Johns Basin – New Madrid Floodway project proposed by the U.S. Army Corps of Engineers. This update represents a somewhat belated, but still timely, summary of the 2007 U.S. Federal Court decision resulting from environmental opposition.
The Mississippi River levee system started in 1717 at the behest of city founder Bienville to protect New Orleans. Completed by 1727, this levee was three-foot high. For many years, levee construction then became a private landowner responsibility. By 1743, riverfront landowners were required to build and maintain levees on their property or forfeit the land to the French crown. These low levees, however, did not offer enough protection against the mighty Mississippi River breakthroughs (known as crevasses) were common, and sometimes deadly.
The unorganized levee system finally became U.S. Army Corps of Engineers (USACE) and Mississippi River Commission responsibility around the middle of the 19th century. Interestingly, in 1852, the Federal Government appropriated $50,000 to commission a study of solutions to the Mississippi River flood problem. After conducting his study, Charles Ellet Jr. suggested that the causes for flooding were:
- The levee system that confined the flow of a river that formerly expanded over many thousand square miles,
- Human agricultural cultivation,
- Shortening the route of the river by channeling meander cut-offs.
In a prescient conclusion, Ellet predicted that with further human settlement along the river, the problem would only become worse. As a harbinger of the future, the USACE ignored Ellet’s report, and instead adopted that of two USACE Engineers, Captain Andrew Humphreys and Lieutenant Henry Abbot. Their recommendation, which has formed the basis of subsequent USACE management, was that further extension of the levee system was the best way to control flooding from Cairo to the Louisiana delta. Construction of approximately 1600 miles of the Mississippi River Levee took from 1882 until1933. This levee expansion, of course, did not solve the flooding problem with many serious floods occurring over ensuing years – a major such event occurring as early as 1937 and repeated events transpiring since then up to as recently as the 1990s.
The federal 1928 Flood Control Act, authorized the construction of a complex levee system from Birds Point – a little south of Cape Girardeau, MO – to New Madrid. Producing the enclosed Birds Point-New Madrid Floodway, the construction comprised a frontline levee along the river bank and a setback levee, at times many miles inland of the frontline levee and running from Birds Point down to New Madrid. The system was designed such that at the upper end an 11-mile section of the frontline levee is two-foot lower than the rest along with a comparable five-mile section and a planned 1,500-foot gap in the levee system both at New Madrid. When flooding threatens Cairo, Illinois, water either would flow over the lowered section of levee into the New Madrid Floodway – or sections of the upper levee would be blown to allow water to flow through the floodway and out through the New Madrid gap. This would lower the river and reduce the threat to Cairo. However, nearly 75 years later the system, especially the 1,500 gap, would literally become a federal case.
Besides serving as a critical habitat for migratory birds and a nursery for many species of Mississippi River fish species, the floodway itself is prime agricultural land and has attracted farmers to the region to take advantage of the fertile floodplain soils. Additionally, the towns of East Prairie and neighboring Pinhook suffer repeated flooding.
The easy assumption was that the floods resulted from the nearly annual spring floods which included Mississippi river back up through the gap. But the primary cause of that flooding appears due to a poorly designed and maintained storm water control system in those communities that is inundated by the spring headwater flooding caused by high local rainfall or water flowing down from higher land neighboring the region.
Previous articles on this project, published in the Ozark Sierran, are available at:
http://missouri.sierraclub.org/SierranOnline/AprJune2003/05PartIofSierranFloodwayArticle_msr.HTM,
http://missouri.sierraclub.org/SierranOnline/JulySep2003/01PartIIofSierranArticlewithmagesbyAlan_msr.HTM, and
http://missouri.sierraclub.org/SierranOnline/JulySep2003/01PartIIofSierranArticlewithmagesbyAlan_msr.HTM
Opposition to the project was led by two national environmental groups (Environmental Defense and the National Wildlife Federation), and the Missouri Coalition for the Environment with support from the Missouri Chapter of the Sierra Club.
This was based on several issues:
- The impact that closing the levee would have on the annually flooded lowland fish nursery and migratory bird habitat,
- The evidence that the project did not, despite its claims, address the primary cause of flooding in the communities,
- The extent and potential success of proposed mitigation efforts, and
- The questionable calculation of the project economic costs and benefits.
With the national organizations taking the lead, opposition efforts culminated in a suite filed in Federal Court in Washington D.C. After a series of intermediate negotiations and deliberations, this case resulted last year in a ruling (September 13, 2007) in favor of the plaintiff and against the defending USACE. Interestingly, during deliberations, the USACE acknowledged a “major math error in the 2002 REIS [Revised Environmental Impact Study]” and undertook a re-computation.
In his finding, U.S. Federal Court Judge James Robertson found that plaintiffs were correct in claiming that “the Corps has improperly manipulated its habitat models to make it seem that the project’s environmental impacts will be fully mitigated, when they will not.” Indeed, Judge Robertson stated that “the Corps of Engineers has resorted to arbitrary and capricious reasoning - manipulating models and changing definitions where necessary – to make this project seem compliant with the Clean Water Act and the National Environmental Policy Act when it is not.”
In determining that the project complied with the provisions of the Clean Water Act, the USACE claimed that “impacts to significant fish and wildlife resources are fully compensated.” Judge Robertson, however, found that certification of compliance “runs counter to the evidence before the agency [and] is so implausible that it [cannot] be ascribed to a difference in view or the product of agency expertise.”
In his decision, Judge Robertson ruled: “Further construction work on the project will be enjoined, and the Corps will be required to restore the disturbances created by the preliminary construction work that has already been completed.”
Despite publicly arguing against the Robertson decision, to date, it is not clear what the USACE plans to do by way of response. According to an undated posting on its website, the Memphis District of USACE states: “[it has] immediately halted work on the St. Johns/New Madrid Project in order to comply with the Court’s instructions while the parties concerned review the Court’s accompanying opinion.” It continues “The Justice Department is reviewing the Judge’s decision and no determination has been made as to what the government’s next step will be. All construction on the site has been suspended.”
Although it remains unclear what ultimately will transpire, the decision by Judge James Robertson represents a profound repudiation of the behavior of the Memphis in manipulating scientific evidence, underestimating mitigation needs, and fudging cost-benefit calculations to justify a favored project.