When Government Can’t Get Along

By Lisa Beutler

This week the California Department of Fish and Game (DFG) moved to join federal litigation challenging an Army Corps of Engineers (Corps) policy on the removal of vegetation on flood control levees.

Streams and river banks are riparian areas.  Riparian vegetation serves many functions including bank stabilization and water quality protection, food chain support, thermal cover, flood control, fish habitat, and wildlife habitat.

DFG will join plaintiffs in a pending case including Friends of the River, Defenders of Wildlife and the Center for Biological Diversity who have loudly questioned the facts leading to the Corps decision.  The Corps vegetation policy is also unpopular with California farmers and other water users.

The case challenges the Corps adoption of a national policy that requires removing virtually all trees and shrubs on federal levees.  The dispute has been brewing for several years.  DFG, along with many other local, state and federal agencies, has been in facilitated dialogue to find a resolution without success.  When asked about the move to litigation, DFG Director Charlton H. Bonham explained. “It’s unfortunate that the discussions haven’t led to a more agreeable outcome, but if adhered to, the policy will do incredible damage to California’s remaining riparian and adjacent riverine ecosystem, especially in the Central Valley.”

The breakdown highlights some classic public administration dilemmas.  Public managers are increasingly being asked to address issues in complex and stressed systems.  Agencies that were elegantly designed to be experts in delivering specific services must now consider the missions of other agencies in their decision process.  Even so, they remain directly accountable for delivering their own mission.

A second dilemma relates to a desire for standardization in policies.  In general, standardization leads to better quality control and service delivery.  From the perspective of decision makers and their publics, standardization creates fairness and predictability.  Yet, in increasingly complex systems, one size often does not fit all.   The process of managing exceptions and variances can be an administrator’s slippery slope.

In this case the Corps has previously collaborated with state and federal agencies in developing levee design approaches intended to benefit federal- and state-listed threatened and endangered species.  The new edict is not fully consistent with those past actions.

This shift is understandable.  In the aftermath of recent Midwest flooding, the Corps has been publically challenged to focus on delivery of a fail proof flood control system.  If flooding happens and the Corps has not been diligent about moving water as quickly as possible from one place to another safer place, they are equally likely to be sued by someone that has experienced flooding.

Adding to the dispute are mixed findings related to the impact of vegetation on levees and in waterways.  In general, vegetation can create maintenance problems for levees and clog waterways.  However, some studies of California levees show there are benefits or at least few or no concerns with properly managed vegetation.  One study showed that some trees assisted in strengthening the levees.   These facts, along with the benefits of vegetation to the ecosystem are what have led California to stand its ground in fighting the policy.

We do know that fixing one problem can lead to many more.  The California agencies in dispute with the Corps’ estimate the new federal policy could cost up to $7.5 billion and divert funds away from more significant levee deficiencies like seepage and erosion.

Legally, the most likely way to resolve the dispute will be through the court system.  Until public administrators are able to find ways to resolve the dilemmas of single mission agencies managing complex issues and ways to balance standardization with the need for exceptions, the courts will be the referee of last resort.  We need to find a better way.

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