Missouri’s TRO against the Corps to prevent the blowing of the levee on the Mississippi in May 2011: complaint; answer; and district court opinion (upheld by the circuit court – Missouri v. U.S. Army Corps of Engineers, 11-01937, U.S. Court of Appeals for the Eighth Circuit (St. Louis)., and review was denined by the Supreme Court.)
This same issue was litigated when the Corps modified the levee system at this point, and Missouri tried to block the work based on failing to consider earthquakes under the EIS:
Story v. Marsh, 732 F.2d 1375 (8th Cir. 1984) – More levee law
Joint Statement From Agriculture Secretary Tom Vilsack And FEMA Administrator Craig Fugate On The Opening Of The Birds Point-New Madrid Floodway In Central Missouri
Interesting that almost none of the media pays attention to the legal situation of folks in the Missouri floodway – they originally got the land with easements on it, or sold an easement to the feds later. The original purchasers got the land very cheaply, precisely because of the easements. With time, everyone forgets that every day they are on land is a gift, not an entitlement. Then when the floodway is used, congress comes in and bails them out as if they owned the land free and clear.
The worse problem is playing out over the decision to open the Morganza spillway in Louisiana. This has not been opened since 1973, and it is full of people who forgot that is a spillway. This then inhibits the corps in opening the spillway, which then increases the belief that it will never be opened. The Corps should be opening Morganza right now, rather than seeing how much stress the downstream levees can take. For example, the major prison in LA, Angola, is on a bend in the river. The projected crest is now higher than the levee at Angola, and the state is starting the process of evacuating a max security prison with more than 5,000 prisoners. That would not be necessary if Morganza was open. Baton Rouge is facing a crest 4 feet about the previous record, which may put some water over the levee on the Port Allen (west side) of the river, since those levees are a little lower. While 47.5 feet is below the level of the levees, it is enough to drive a lot of water under the levee. You can already see the water level in the drainage ditches near the levee going up, and sand boils are carrying water several thousand feet from the river into neighborhoods. If things are not as the Corps thinks they are with the levees, and a boil blows out like in Cairo, you could get a lot of flooding fast. The conventional wisdom in LA is that Mississippi river levees do not break, but that is only true until it isn’t. (They are built and maintained better than hurricane levees, but the Corps knows a lot less about the geology in south LA than it thinks.)
So, should we let people live and farm in spillways at all? My vote would be to make them wilderness, and to open them pretty regularly to keep the charged with silt and filled with wetlands.
This post will be updated as more information is available.