Litigation reins in Corps dike rule

Conservation groups successfully ended their litigation against the U.S. Army Corps of Engineers September 11 after the Corps suspended its controversial program requiring removal of all trees and shrubs from levees and after Congress passed a new law requiring the Corps to comprehensively review its guidelines governing vegetation on levees.

Friends of the River, the Center for Biological Diversity and Defenders of Wildlife dismissed their 2011 lawsuit in federal court that challenged the implementation of the Corps’ policy in California, on the basis that levee vegetation in California provides important habitat for endangered fish, birds and other wildlife, and its removal would reduce levee safety.

Nationwide, including on Puget Island, the Corps mandated that all vegetation be removed 25 feet toward the water from the centerline and 75 feet inland from the centerline.

“We have successfully stopped the Corps program that would have required massive removal of trees and vegetation from levees in California, riparian habitat that is essential for endangered species and also provides scenic beauty and recreational enjoyment of our rivers,” Bob Wright, senior counsel for Friends of the River, said in a press release. “Our litigation and the objections by state water and wildlife agencies and flood-control associations held off the levee clear-cutting program for four years, allowing Congress time to act to force the Corps to review and reconsider their vegetation policy.”

In June of this year, Congress passed, and the president signed, the Water Resources Reform and Development Act, which requires the Corps to carry out a comprehensive review of its guidelines governing what to do about trees and vegetation on levees. Under the Act, the release said, the Corps must consider the “levee safety benefits that can be provided by woody vegetation” and “the benefit of vegetation on levees in providing habitat for species of concern, including endangered, threatened, and candidate species.”

Until the review — in consultation with federal wildlife agencies, state, regional, local and tribal governments, conservation groups and the public — is completed, the Corps cannot require the removal of existing trees and vegetation from levees as a condition for approval or funding of any project unless the specific vegetation has been demonstrated to present an “unacceptable safety risk.”

“Forcing the Corps to take a step back on its tree-removal policy is a good thing for the many endangered species in California that may rely on vegetation along levees for habitat — species like the chinook salmon, steelhead trout, green sturgeon, giant garter snake, least Bell’s vireo, riparian brush rabbit, southwestern willow flycatcher and valley elderberry longhorn beetle,” said Jeff Miller with the Center for Biological Diversity. “The science shows that leaving trees along levees will also benefit levee safety. The new law should allow management agencies to use scarce funds for maintenance and repairs rather than counterproductive and costly vegetation removal, which is why so many California flood control agencies opposed the Corps’ tree-cutting program.”

Before adopting the anti-vegetation policy, the Corps had allowed retention and encouraged planting of trees and shrubs on levees in cooperation with federal and state agencies because little other riverbank or riparian habitat remains for endangered species and other wildlife.

After Hurricane Katrina, the Corps made major changes to its nationwide levee program, including new standards in 2009 banning vegetation on levees, without consideration for regional differences and the fact that many levees were designed to include streamside vegetation to enhance the habitat lost by the re-engineering of rivers and streams. The Corps took steps to cancel all exceptions to the requirement that all levees be cleared, without evaluating the impacts on endangered species or their habitats.