INTRODUCTION :: Let the river run;
let all the dreamers
wake the nation.
Last year, hundreds of thousands of residents of the lower Mississippi River basin were forced to flee Hurricane Katrina. Having scattered like leaves before the gale-force winds that pounded the Gulf Coast, many are still displaced by the wreckage caused by storm surges and floodwaters. Those who have returned continue to experience the adverse effects of a shattered infrastructure as they attempt to rebuild their homes and their lives. The environmental calamity is profound: drinking water sources polluted by destroyed septic systems and leaking storage tanks; contaminated sediments from the bayous to the residents’ backyards; decimated marshes and oyster beds-in short, an ecology turned inside out.
Hurricanes are a natural phenomenon in this region. Why were the Gulf Coast communities so vulnerable? The answer to this question is frustratingly elusive. One might understandably believe that, as a developed nation, the United States has the most sophisticated technologies at its fingertips and first-rate environmental laws to ensure appropriate implementation through open public processes. Yet in actuality, there were serious failures at every level of government.
One year after Hurricane Katrina, the U.S. Army Corps of Engineers responded to a congressional request for an accounting with a report admitting culpability for much of the devastation of New Orleans. Its structural defenses failed not because Congress had authorized only moderate Category-3 protection, which in turn let floodwaters overflow the city’s levees, but because the levees and floodwalls simply collapsed. The report revealed a multitude of design errors. The network of federal and local structures was a haphazard “system in name only,” where floodwalls and levees of varying heights used mismatched materials that did not properly interface. Construction engineers failed to account for the gradual sinking of native soils, leaving the levees vulnerable to floodwaters. 10 For their part, the local levee districts failed to ensure that necessary repairs on levees and floodgates were completed or that pumps would continue functioning during a catastrophic storm event. Instead of fanning the flames of reform, the Corps’ report prompted Louisiana’s senators and their congressional allies to appropriate tens of billions of dollars for the construction of more and higher levees and to seek exemptions from federal environmental requirements.
This response is all too typical. The management mission of the Corps does not reflect a cohesive national water policy; rather, it arises from the piecemeal, pork- barrel conglomeration of multiple-use statutes. The vacuum created by the lack of a coherent federal management vision allows and even encourages federal, state, and local actors to scramble for money and power while avoiding responsibility and shifting blame. If we look beyond the Gulf, the catastrophic consequences of the lack of a cohesive federal policy can be seen throughout the nation. Due to dredging and channeling for flood control and commercial navigation, much of the Missouri River, for example, is now “a dead snake, rigid, unable to move, constricted by the levees along its banks.”
In other works, I have proposed the development of a federal preservation strategy for the interjurisdictional waters of the Missouri River. This essay integrates the Mississippi River, as it makes its 2,300-mile journey from northern Minnesota to its delta in southern Louisiana. Just as common problems face the Missouri and Mississippi Rivers, there may just as well be common solutions. In fact, any lasting solution that secures sustainability and intergenerational equity likely requires a large-scale, basin-wide strategy-a federal Interior Rivers Ecosystem Act that governs the management of the Missouri-Mississippi River system.
This statute must be comprehensive in two senses. First, it must recognize and reflect the close linkage between ecosystem integrity and human well- being. Second, it must be a true organic act that establishes an adaptive, holistic federal strategy for these two intertwined, interjurisdictional rivers. More specifically, the Act should provide clear parameters for the management activities of the Corps of Engineers. The Corps is the nation’s oldest water-resources agency and one of the largest federal land-management agencies; yet unlike the National Forest Service, the National Park Service, the U.S. Fish and Wildlife Service, the Bureau of Reclamation, and the Bureau of Land Management, the Corps lacks an organic act to cabin its discretion.
There are two significant impediments to a comprehensive federal Interior Rivers Ecosystem Act. One is the Corps’ love for the “rational” sciences of engineering and economics, particularly cost-benefit analysis (CBA). The other impediment is federalism. Congress, the state legislatures, the federal agencies, and the courts hide behind both as a means of evading responsibility for protecting and conserving the integrity of the nation’s water and water-dependent resources. The result has been degraded waterways, disastrous flood events, a crumbling national infrastructure, and potentially irreversible losses of biological diversity and ecological resilience.
Sustainable transboundary management measures are feasible in spite of these obstacles. A nuanced application of CBA can play a role in resilient, equitable decisionmaking when employed as a supplemental, rather than predominant, decisionmaking factor. And a dynamic view of federalism-a pragmatic, interactive strategy of governance with clear lines of authority and incentives for cooperation and innovation among and between federal, state, local, and tribal entities-should encourage, rather than obstruct, more coherent leadership in conservation policy. Moreover, there is precedent for adopting a comprehensive strategy for a major interjurisdictional river system, as legislation and interstate compacts have embraced such strategies in other basins.
This Essay begins in Part II with a snapshot of the historical events and physical characteristics that shaped the Missouri and Mississippi River basin communities. Part III then explores the existing management matrix of federal laws governing the Corps of Engineers’ activities in these basins. Part IV demonstrates how CBA and federalism have obstructed integrated, sustainable management strategies. This Essay concludes in Part V with an assessment of how these obstructions can be overcome in a post-Katrina world and with suggestions for an Interior Rivers Ecosystem Act.
May 2014, Vol. 66, No. 3
John O. McGinnis & Steven Wasick, Law’s Algorithm
Sandra F. Sperino, The Tort Label
Nicole Buonocore Porter, Mutual Marginalization: Individuals with Disabilities and Workers with Caregiving Responsibilities
Peter L. Markowitz & Lindsay C. Nash, The Unwritten Administrative Constitution
Gaia Bernstein, Incentivizing the Ordinary User
Thomas J. Fitzpatrick IV & Amy B. Monahan, Who’s Afraid of Good Governance? State Fiscal Crises, Public Pension Underfunding, and the Resistance to Governance Reform
Patricia L. Reid, Fact Sheet #71: Shortchanging the Unpaid Academic Intern