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Does the Bird's Point floodway case reveal a problem with the Clean Water Act?

By Michael Clark - 26 May 2011 22:23:0 GMT
Does the Bird's Point floodway case reveal a problem with the Clean Water Act?

On May 2, the Army Corps of Engineers blew up Birds Point levee, in Missouri, to redirect the surging Mississippi River, virtually saving the upstream town of Cairo, Illinois and likely averting significant additional downstream flood damage. Like a relief valve, the broken levee allowed floodwaters to discharge into the Birds Point-New Madrid Floodway, an area comprised of 130,000 acres of largely agricultural land and 200 homes. The right to flood the low lying area was purchased as easements by the federal government, after the passage of the law, the Flood Control Act of 1928,  that authorized the floodways. The Corps decides when to 'operate' the floodway, one of four along the river.

The floodways were a new concept. Prior to the massive floods of 1927, managing the Mississippi was limited to building higher and higher levees. The floodways essentially introduced a means to relieve flooding, but they were controversial. The Birds Point Floodway system took 14 years to complete due to myriad lawsuits brought by residents claiming its construction amounted to a taking of their property. In short, they wanted compensation, which many of them received, though not all. To this day, there is property within the floodway for which the federal government has not secured flowage rights.

Though incomplete, the floodway was last 'operated' in 1937 but only after the National Guard was deployed to drive off armed residents preventing Corps personnel from blowing up the levee. Over the years, the operations plan for the floodway has changed several times. The destruction of the levee on May 2 was predicated on the most recent operations plan, written in 1986.

Historically, opposition to the floodway was largely centered on property rights issues. However, the recent injunction application filed by the State of Missouri Attorney General, Chris Koster, to prevent the destruction of the Birds Point levee asserted that operating the floodway constitutes a violation of Missouri's Clean Water Act. Mr Koster argues that the release of floodwaters may result in the contamination of state waters, a direct of violation of Missouri's Clean Water Act,  and points to the section in the federal Clean Water Act that supports his thesis that the Corps is subject to state water quality laws.

The court, in its opinion, states that the federal Clean Water Act includes an exception that protects the Army and its mandate to maintain navigation. This, the court maintains, is a direct reference to the Corps' mission of flood control and navigability. Since the floodway serves the purpose of maintaining navigability, an assertion that is based on flimsy testimony recounted in the opinion, the Corps is exempt from Missouri's Clean Water Act, the court concluded.

However, the court went on: ''If indeed the plaintiffs are correct [that the Corps is subject to state clean water act laws], then [the Clean Water Act] eviscerates the core functions of the Corps under the Flood Control Act.'' It would appear that, based narrowly on the law, the plaintiffs are incorrect, but it raises a critical legal flaw, in that local water quality regulations may be violated for purposes of flood control and navigation. Though flood control and navigability are critical and often save lives and mitigate economic impacts, they should not be achieved at the expense of local water quality. Also, there appears to be no legal recourse for states if water contamination or violations occur as a result of floodway operation.

The case speaks to the broader issue of a fractured federal water resources management system. USGS measures water quantity, EPA regulates water quality, NOAA predicts flood events, the Corps oversees flood control, etc. There is a need to integrate these services, in which flooding and water quality concerns are given voice. A good first step was taken recently when USGS, NOAA, and the Corps announced a new partnership to foster collaborative water resources management across the agencies.  Much remains to be done, but it seems a legal loophole that sacrifices water quality for navigation needs mending.