Army Corps faces challenges to levee vegetation policies

Vol. 43 No. 5

Jason Rylander is a senior attorney with Defenders of Wildlife. He is counsel to that organization in the pending California lawsuit against the Corps.

The U.S. Army Corps of Engineers (Corps) is facing multiple lawsuits over its new policy announced in an Engineering Technical Letter (ETL) that prohibits vegetation on and near levees in California and across the country. Engineering Technical Letter No. 1110-2-571 Guidelines for Landscape Planting and Vegetation Management at Levees, Floodwalls, Embankment Dams, and Appurtenant Structures (Apr. 10, 2009). Environmental groups are also challenging the Corps’ related Notice of Process for Requesting a Variance from Vegetation Standards for Levees and Floodwalls, 75 Fed. Reg. 6364 (Feb. 9, 2010), which enforces and implements the ETL, and a Draft Environmental Assessment/Finding of No Significant Impact for its variance policy.

At issue is whether the Corps failed to comply with the National Environmental Policy Act (NEPA) or the federal Endangered Species Act (ESA) prior to developing and implementing the ETL and variance policy. The environmental plaintiffs claim that the Corps’ new policy, which requires levee owners to clear cut tens of thousands of miles of levees across the country, will in turn eliminate vital habitat for wildlife.

One case, brought by Friends of the River, the Center for Biological Diversity, and Defenders of Wildlife, focuses on California, which has lost nearly 95 percent of its riparian forests due to earlier urban development. Friends of the River v. U.S. Army Corps of Eng’rs, No. 2:11-cv-01650-JAM (E.D. Cal.). The environmental plaintiffs claim that what remains of this unique riparian habitat is essential for wildlife, especially threatened and endangered species such as Chinook salmon, Swainson’s hawks, and the Valley Elderberry longhorn beetle.

Under the Corps’ levee vegetation standard, some 1,600 miles of California levees would be denuded of all vegetation except grass, unless levee operators obtain a variance from the Corps. State officials estimate that it will cost upwards of $7.5 billion to remove trees, shrubs, and other plant life from the levees. Despite repeated warnings from both environmental groups and the State of California that the standards could harm federally listed species and significantly impact the environment, the Corps issued the ETL without preparing an environmental assessment or environmental impact statement under NEPA. The Corps also did not consult with the U.S. Fish and Wildlife Service as the ESA requires.

The Corps issued the ETL in response to levee failures in 2005 in New Orleans in the wake of Hurricane Katrina, citing the need to improve public safety. But the one-size-fits-all solution ignores the Corps’ own scientific assessments, which conclude that trees and other vegetation can improve levee safety and should be evaluated on a case-by-case basis.

In fact, in places like California, many levees were designed with vegetation in mind. Historically, the Corps has allowed—and even encouraged—the planting of trees on California levees. It has collaborated with state and federal agencies in developing levee design approaches intended to benefit federal- and state-listed threatened and endangered species. Thus, the new policy directly conflicts with the Corps’ past actions.

The Corps sought to dismiss the Friends of the River case on ripeness grounds, alleging that the ETL and variance policy does not establish new standards and thus is not ripe for judicial review. Environmental groups counter that the case is ripe because the Corps has published in the Federal Register a decision, which it is currently enforcing against levee operators. The district court denied the Corps’ motion to dismiss in an opinion dated April 27, 2012, so the case will now proceed on the merits.

Meanwhile, in Idaho, a lawsuit is seeking to protect trees on a levee in the City of Coeur d’Alene. Kootenai Envtl. Alliance v. U.S. Army Corps of Eng’rs, No. 2:11-cv-02040-RSM (W.D. Wash.). The lawsuit, brought by an environmental group, challenges an order by the Corps issued to the city to remove some 500 ponderosa pines from its levee. City officials claim the rule would harm the town and cost taxpayers $1.6 million for little, if any, benefit in safety. Because the trees have been growing on the dike for years without causing serious problems, plaintiffs in the lawsuit hope the courts will stay the axes until there is a thorough scientific review of how removing the trees will affect the environment and the integrity of the levee.

These cases, and a third possible suit to be filed by the California State Department of Fish & Game, represent a potentially important test of the limits of non-formal rulemaking. Courts will need to decide whether the ETL and variance policy constitute “agency action” requiring consultation under the ESA or a “major federal action” under NEPA, and whether compliance with these statutes is required on a program-wide level or on a case-by-case basis before the trees begin to fall.

Editor’s Note: On June 1, 2012, the Ninth Circuit held that the U.S. Forest Service’s approval of mining rights in the Klamath National Forest constituted “agency action” which required advance consultation with appropriate wildlife agencies under the ESA. Karuk Tribe of Ca. v. U.S. Forest Service, No. 05-16801 (9th Cir. June 1, 2012)(en banc).

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