Statement of American Rivers
Environment and Public Works Committee United States Senate
Mr. Chairman, Senator Smith and members of the Committee, thank you for the opportunity to present testimony on the Water Resources Development Programs within the U.S. Army Corps of Engineers. I am Melissa Samet, Senior Director of Water Resources at American Rivers, a national conservation organization dedicated to protecting and restoring the nation’s rivers. American Rivers has, over 33,000 members across the country, and works in partnership with over 4,000 river and conservation organizations. American Rivers also works closely with a growing network of organizations working to reform the way the Army Corps of Engineers does business.
During the past few years, increased scrutiny of U.S. Army Corps of Engineers (Corps) projects has revealed a disturbing pattern of flawed economic and environmental analyses, biased and insupportable decision-making, and failed mitigation. These problems have been identified by the Army Inspector General, the National Academy of Sciences, the General Accounting Office, the Environmental Protection Agency, the U.S. Fish and Wildlife Service, the media, environmental and taxpayer organizations, and citizen activists.
Projects based on flawed analyses damage the nation’s rivers and wetlands, wreak havoc on recreation, tourism, and other businesses that rely on healthy rivers, and squander agency resources and tax dollars. When tax dollars and Corps resources are spent on planning, defending, or constructing such projects, the Corps has less ability to carry out environmental protection and restoration projects, or more deserving flood control and navigation projects.
To ensure that the Corps provides true benefits to the nation, and does not cause unnecessary and entirely avoidable environmental harm, Congress should reform the way the Corps plans and constructs water resources projects. Importantly, these same reforms also will save taxpayer dollars.
American Rivers opposes the passage of another Water Resources, Development Act without these reforms. More potentially wasteful and environmentally damaging Corps activities should not be authorized without substantially changing the way the Corps plans, evaluates, and constructs its civil works projects.
American Rivers strongly supports Congressional proposals that would change the way the Corps does business. We believe that reforms contained in S. 646 (Corps of Engineers Reform Act of 2001), and S. 1987 (Corps of Engineers Modernization and Improvement Act of 2002), H.R. 1310 (Corps of Engineers Reform Act of 2001), and H.R. 2353 (Army Corps of Engineers Reform and Community Relations Improvement Act of 2001), are essential to bringing about this change. In this testimony I would like to highlight three critical reforms: requiring independent peer review of costly or controversial Corps projects; requiring full and concurrent mitigation, and prohibiting the Corps from claiming project benefits for draining wetlands in cost-benefit ratios.
Corps Studies Must Be Reviewed By An Independent Panel of Experts
Study after study has shown that the Corps’ economic and environmental analyses cannot be trusted. Indeed, the Army’s own Inspector General found that many Corps employees have no confidence in the integrity of the Corps’ planning process. Unfortunately, the impacts of flawed analyses go far beyond issues of trust and integrity. All too often, they are used to justify the construction of projects that unnecessarily harm the environment, and that divert tax dollars away from serving the real needs of the nation.
The transformation of the nation’s rivers brought about by Corps levees, dams and dredging projects are among the leading reasons that North America’s freshwater species are disasppearing five times faster than land based species, and as quickly as rainforest species. The widespread damage has led the National Research Council to call for the establishment of a national goal to restore riparian functions along America’s rivers. The National Research Council has concluded that protecting and restoring riparian areas will have a “major influence on achieving the goals of the Clean Water Act, the Endangered Species Act, and flood damage control programs.”
Despite an explicit environmental protection mission, and specific environmental restoration programs and projects, the Corps’ traditional flood control and navigation projects do not appear to be doing any better for the environment. To the contrary, agency-wide biases, institutional barriers, and faulty analyses are all contributing to the continued degradation of the nation’s rivers and wetlands.
Two National Academy of Sciences panels and the Army Inspector General have concluded that the Corps has an institutional bias for approving large and environmentally damaging structural projects, and that its planning process lacks adequate environmental safeguards. Less environmentally damaging, less costly, nonstructural measures that would result in the same or better outcomes are routinely ignored or given short shrift.
The National Academy of Sciences, the Army Inspector General, the General Accounting Office and numerous other independent reviews also have revealed fundamental and critical technical flaws in the Corps’ analyses of highly, controversial and expensive projects.
Examples of the flaws are quite shocking:
· Just last week, the General Accounting Office reported that the Corps had overestimated the benefits of the $311 million Delaware River Deepening Project by an incredible 300 percent. The General Accounting Office concluded that the “Corps’ analysis of project benefits contained or was based on miscalculations, invalid assumptions, and outdated information.” The Corps said the project would produce $40.1 million in annual benefits. The General Accounting Office found that the project benefits could be no more than $13.3 million a year. Unable to explain its own analysis, the Corps blamed $4.7 million of that discrepancy on, a computer error. The Corps suspended work on this project in late April 2002 when the General Accounting Office advised the Corps of its preliminary findings.
· In one of the Corps’ more notorious episodes, the Army Inspector General concluded that the Corps had deceptively and intentionally manipulated data in an attempt to justify a $1.2 billion expansion of locks on the Upper Mississippi River. In short, the Corps had “cooked the books.”
· An independent economic analysis of the Corps’ proposal to construct the $181 million Yazoo Backwater pumping plant in Mississippi, clearly demonstrates that the Corps overestimated just the agricultural benefits of that project by $144 million.
· The U.S. Environmental Protection Agency (EPA) working with the U.S. Geological Survey also demonstrated that the Corps had grossly underestimated the wetland impacts of the Yazoo Pumps project. EPA has concluded that the Yazoo Pumps will drain and damage more than 200,000 acres of ecologically significant wetlands - 10 times more wetlands than are destroyed in an entire year by private developers. The Corps claims that “only” 23,200 acres of wetlands will be affected.
· A newspaper’s six-month review of the economics of the $188 million Columbia River channel deepening project revealed that the Corps had overestimated the project’s benefits by 140 percent. The Corps told the public that the project would return $2.10 for each dollar of public money invested. The Oregonian found that the project would return just 88 cents for each tax dollar spent. The newspaper identified six key areas where the Corps had relied on outdated or faulty data, or left out important factors. Lester Lave, the chairman of the National Research Council panel that investigated the Upper Mississippi River lock expansion project, endorsed the paper’s analysis as fair and reasonable. In just a few days before the Oregonian series ran -- and after the Oregonian had shared its findings with the Corps - the Corps advised the paper that it would be reexamining the cost-benefit analysis.
· Four retirees with engineering and other technical backgrounds from Cecil County, Maryland devoted an extraordinary amount of time and energy to document dozens of flaws in the Corps’ economic analysis of the $90 million Chesapeake & Delaware Canal deepening project. One of these flaws was a “basic math error that boosted the benefit-cost ratio from a failing 0.65 to a passing 1.21.” In January 2001, the Corps finally acknowledged that the project was not economically justified and suspended work.
As evidenced by the range of projects discussed in this testimony, the Corps’ inability to properly analyze costly or controversial projects is widespread. Unfortunately for the taxpayers and the environment, this is just a sampling of Corps projects with significant analytical problems.
Flawed Corps studies also are a long-standing problem. For example, in 1987, the Washington Post editorialized that the Tennessee-Tombigbee Waterway “was justified over the years by egregiously skewed cost-benefit estimates - what you would call lies if your children told them instead of the- Corps of Engineers.”
The Corps Is Unable Or Unwilling To Police Its Own Planning Process: During the past few years, a steady stream of studies exposing fundamental and critical errors in Corps planning documents has driven the public to call for substantial reforms of the agency. Unfortunately, during this same time, the Corps has amply demonstrated that it is either unwilling or unable to reform itself - and it has continued to use egregiously flawed studies to support its recommendation of costly and highly destructive projects.
The Corps’ unwillingness to reform itself is perhaps best exemplified by one of the Corps’ most recent attempts to quell criticism of its planning process. After being forced to suspend two major projects in just two months - the $311 million Delaware River Deepening project and the $188 million Columbia River Channel Deepening project - when independent reviews revealed dramatic flaws in the Corps’ economic analyses, the Corps announced an agency-wide “pause” of approximately 150 water resources projects.
This much-touted “pause” was ordered to address the “serious questions” that had been raised regarding the accuracy of the Corps’ planning process. Corps Districts were ordered to “have a new economic analysis (not an update) completed before [projects with an economic analysis approved prior to fiscal year 1999 would be] allowed to proceed.”
The Corps quickly dashed any hopes that this was a serious attempt at reform. Just 17 days after it announced the project “pause” and review to the public, the Corps claimed that it had reviewed 171 projects, clearing 118 to proceed. Only eight projects were flagged for additional review as a result of the project “pause” directive. The remaining projects were already being reviewed before the Corps’ announcement. A legitimate economic analysis for a Corps project requires the gathering of data, selection and justification of models and assumptions, and careful review and evaluation. Claims that the economic analyses for 118 projects can be redone in just 17 days is simply not believable.
As the St. Louis Post-Dispatch so aptly editorialized when the Corps announced its agency-wide project review:
Critics still worry, and rightly so, that the Corps may be trying to preempt true reform by making a show of falling on its sword. Congress must see to it that doesn’t happen. For years the Corps has downplayed the costs of its projects to the environment and the taxpayers and overstated their benefits to agriculture and the barge industry.
Congress should stop these abuses, and restore credibility to the Corps’ planning and decision-making process.
American Rivers urges Congress to require independent peer review as set forth in S. 1987 and S. 646. These provisions would require independent peer review for projects whose total costs exceed $25 million, or for projects that. are deemed to be controversial. These provisions ensure that the review is truly independent by placing the review office outside of the Corps, and that each review is carried out by a panel that represents a balance of expertise in the areas of biology, economics, and engineering.
Importantly, independent review will not delay planning for projects of concern - unless, of course the review finds fundamental flaws or dishonesty, in which case delays would be inevitable but would serve the public interest. The Corps’ review of costly or controversial projects typically takes approximately one year from the date the draft report is released for public comment until a final report is issued, and can take much longer. For example:
· A draft reformulation report/environmental impact statement for the Yazoo Pumps project discussed in this testimony was issued in September 2000, and 21 months later a final study still has not been released.
· A draft feasibility report for the $311 million Delaware River Deepening Project discussed above, was issued in June 1990, and the final feasibility report was not issued until February 1992, 20 months later.
· A draft feasibility report/environmental impact statement for the $390 million Lower Snake River Juvenile Salmon Migration project was issued in December 1999, and a final study was not issued until February 2002,26 months-later.
The 180-day independent review period required under S. 1987 and S. 646 could easily have been carried out during these time periods.
Independent review also will decrease wasteful spending by ensuring that analytical flaws are brought to light before a project is built or becomes entangled in protracted litigation. Independent review will ensure that the Corps plans, recommends, designs, and builds projects that are based on sound science and economics. Most importantly, independent review will help ensure that environmental.impacts have been adequately addressed, that less environmentally damaging alternatives have been fully evaluated, and that Corps projects are economically justified.
Independent peer review is a common sense solution, and a practice used routinely in the scientific community. ‘It is a practice that is sorely needed to help restore the Corps’ battered credibility.
Congress Should Require The Corps To Fully Mitigate For The Harm Caused By Corps Projects And To Implement That Mitigation In A Timely Manner
The Corps has abjectly failed to plan and implement ecologically successful mitigation for the significant damage caused to rivers and wetlands by Corps projects. The Corps generally does not even attempt to mitigate hydrologic impacts to rivers and streams, and undertakes only limited efforts to mitigate for wetland impacts.
There are many reasons for the Corps’ lack of mitigation success. The Corps’ civil works mitigation is not properly planned, and typically calls for the creation of non-wetland habitat to “replace” wetlands harmed by Corps projects. It does not reflect contemporary science and the importance of natural systems, often is riot implemented in anything remotely approaching a timely manner, and is not effectively tracked or monitored.
In reality, the Corps imposes far more stringent mitigation requirements on private developers than it imposes on itself And, unfortunately, even the more stringent mitigation requirements under the Corps’ regulatory program are alarmingly far from achieving the goal of no net loss of wetlands. The “actual amount of wetland impacts offset is only about 20 percent, meaning that the section 404 permitting program has been fostering an 80 percent net loss of wetlands.”
Poor Planning: When selecting a preferred project alternative for its own civil works projects, the Corps frequently provides little more than a vague indication of its intent to mitigate. Typically the Corps does not provide: (1) a detailed mitigation plan that identifies specific mitigation sites; (2) evidence that proposed mitigation will produce the promised ecological benefits; (3) evidence that the proposed mitigation can actually be implemented; (4) evidence that the proposed mitigation is ecologically appropriate with respect to mitigating project impacts; or (5) a detailed monitoring plan to ensure that the mitigation produces the promised ecological results.
The lack of detailed planning leads to a variety of problems. In the case of the Yazoo Pumps ;project discussed earlier in this testimony, lack of a detailed plan led the Corps to claim that it could implement mitigation on lands that do not exist. Specifically, the Corps said it could purchase conservation easements on 62,500 acres of private agricultural land within the affected area to offset the project’s impacts, when only 9,100 acres of privately owned agricultural land exist in that area.
Where the details of mitigation are not carefully planned, the Corps has no ability to effectively evaluate the potential for mitigation success. This leads to unsupportable claims -- made routinely by the Corps - that a project should proceed because mitigation will alleviate the harms caused.
Just as importantly, where the details of a mitigation plan are not established, the costs of mitigation also cannot be realistically established. Since the costs of mitigation are a project cost, failure to have-a detailed and realistic mitigation plan can seriously skew the cost benefit analysis.
Out-of-Kind Mitigation: The mitigation that is proposed by the Corps frequently ignores its “interim goal of no overall net loss of the Nation’s remaining wetlands base, as defined by acreage and function” that was established by the Water Resources Development Act of 1990.
The Corps ignores the functional replacement element of this goal by frequently replacing rare aquatic and riparian habitat with more common terrestrial habitat. This out-of-kind mitigation by definition cannot replace lost wetland functions. The Corps has completely abandoned the mandate to ensure “no net loss of wetland acres” by consistently requiring far less than one-to-one wetland replacement.
For example, though the Corps’ plan to dredge over 100 miles of the Big Sunflower River will adversely impact 3,631 acres of wetlands, the Corps has limited its mitigation to planting tree seedlings on 1,912 acres of frequently flooded agricultural lands.This is not wetlands mitigation and will not replace the wetland functions that will be lost through the project. Even if this mitigation somehow miraculously created 1,912 acres of wetlands, it would still result in a 47 percent loss of wetlands.
Not Implemented In A Timely Manner: Though existing law requires the Corps to implement mitigation prior to or concurrently with, project construction; the Corps has exploited the somewhat vague definition of “concurrent” to allow decades-long delays in the implementation of mitigation. For example, the Corps currently is scheduled to complete the enlargement of the Mississippi River Mainline levees in the year 2030. That project consists of hundreds of individual and completely separable construction projects (for example, some sections of levees will be raised in Louisiana while others will be raised in northern Mississippi) each with separate mitigation requirements. The Corps nevertheless asserts that all mitigation will have occurred “concurrently” as long as it is completed when the very last portion of levee is raised in 2030 or later, even though construction of most of the separate components will have been completed decades earlier.
This can lead to wholesale failures in the Corps’ mitigation program. For example, by its own admission, the Vicksburg District of the Corps has a mitigation backlog of almost 30,000 acres that it is legally obligated to implement. Despite the fact that much of this mitigation was to have been undertaken years ago, the Vicksburg District has not even purchased the vast majority of the land needed to start these efforts.
Not Tracked or Monitored: As importantly, the Corps makes little effort to track or evaluate the ecological success of mitigation efforts for either its own civil works program or the Clean Water Act Section 404 program. For example, it took the Corps almost five months to identify the promised mitigation -- and the mitigation backlog - in just one of the Corps’ 38 domestic Districts. And despite a specific request, the Corps did not provide any data evaluating whether any mitigation that was attempted in that District has been ecologically successful. The Corps did not provide that information because it had none to provide - a response to a later Freedom of Information Act request revealed that no ecological monitoring had been carried out.
In another telling admission, the Corps has advised the General Accounting Office that the Corps bases its evaluation of whether or not mitigation is complete on the amount of money spent. “According to the Corps, the point at which 50 percent of mitigation is completed occurs in the fiscal year in which the Corps district office’s cumulative expenditures toward the mitigation plan total at least 50 percent. of the estimated cost of these activities.” Mitigation monitoring and ecological success apparently do not come into platy in the Corps’ determination.
The Corps also does not track implementation of mitigation required under the Clean Water Act Section 404 regulatory program. The General Accounting Office has concluded that many Corps districts have touted the success of wetlands mitigation required under the Corps’ regulatory program without having any data to support those claims and without having bothered to assess whether the mitigation efforts have been ecologically successful. The National Academy of Sciences also has found that the Corps is making unsupportable decisions in its Clean Water Act Section 404 regulatory program, which are causing profound impacts on the nation’s rivers, streams, and wetlands.
Even though the Corps apparently has little idea of whether promised mitigation is successful or even attempted, it continues to build projects and to issue Section 404 permits based on the premise that mitigation will correct all environmental damage. To make sound decisions, both the Corps and the public must have ready access to mitigation data.
Congress also recognized that it needed ready access to mitigation information in the Water Resources Development Act of 1986. That Act requires the Corps to include a specific fish and wildlife mitigation plan for any project proposal submitted to Congress for authorization after 1986, or provide Congress with a determination that the project will have negligible adverse impacts on fish and wildlife. However, the Corps often does not provide accurate mitigation information to Congress, preventing Congress from honestly assessing a. project’s impacts prior to authorization.
Between 1986 and 2001, the Corps advised Congress that only 47 of 150 projects required. a fish and wildlife mitigation plan. It strains credulity to suggest that only 31 percent of Corps projects require mitigation. This is particularly true when one examines some of the projects that did not include mitigation plans when proposed to Congress.
For example, the Corps did not present a fish and wildlife mitigation plan to Congress for the American River Watershed Flood Plain Protection Project, which the Environmental Protection Agency has determined will have “adverse environmental impacts that are of sufficient magnitude that EPA believes the proposed action must riot proceed as proposed.” The Corps also did not provide fish and wildlife mitigation plans to Congress for the Boston Harbor Navigation Improvements and Berth Dredging Project or the John T. Myers and Greenup Lock Improvements, each of which the Environmental Protection Agency has said will have “significant environmental impacts that should be avoided in order to adequately protect the environment.”
The Corps should be required to mitigate for all unavoidable harm caused by its projects and to carry out its mitigation in a timely and ecologically sound manner. American Rivers urges Congress to pass into law each of the mitigation provisions in S. 646, which we believe would significantly improve the Corps’ mitigation success rate.
Among other things, S. 646 would require the Corps to mitigate fully for the adverse environmental harm caused by its projects, including adverse hydrologic impacts. It would require the Corps to - at an absolute minimum - implement one acre of mitigation for each acre of habitat harmed by a Corps project, and to ensure that each mitigation plan reflects contemporary science and the importance of natural systems. It would require the Corps to develop a specific mitigation plan flat includes monitoring for each project.
S. 646 also would require the Secretary of the Army to determine that the mitigation plan has the greatest possibility of cost-effectively and successfully mitigating’ the adverse impacts of a project, before the Corps can proceed with that project.
To ensure timely implementation of mitigation, S. 646 also clarifies the definition of “concurrent” mitigation to require that 50 percent of mitigation be completed before project construction begins.
S. 646 further requires the Corps to set up a publicly accessible system to track promised and implemented mitigation, both for the Corps’ civil works program and its regulatory program.
Each of these mitigation reforms is critical for ensuring the protection and restoration of the nation’s rivers, streams, and wetlands. Without these provisions, the Corps will have no hope of meeting its statutorily established goal of ensuring no net loss of wetlands as defined by acreage and function. And the nation will continue to lose key resources necessary to protect water quality, provide habitat for fish and wildlife, and provide protection from flooding.
Congress Should Ensure That The Corps’ Cost Benefit Criteria Comply With Federal Law And Longstanding Federal Policy
The Corps currently can, and does, claim project benefits for draining wetlands - an activity that undeniably harms the environment and that requires mitigation. For example, over 83 percent of the benefits of the Yazoo Pumps project are derived from draining wetlands to promote increased agricultural production on marginal lands that have always flooded. As I discussed earlier, EPA has concluded that the Yazoo Pumps will drain and damage more than 200,000 acres of ecologically significant wetlands. Approximately 150,000 of those wetland acres are located within the 2-year floodplain.
Claiming project benefits from the draining of wetlands is directly at odds with the mandates of the Clean Water Act Section 404(b)(1) Guidelines (which apply to Corps projects), the implementing regulations of the National Environmental Policy Act, and long-standing national wetlands protection policies, national farm policies, and national floodplain policies. It also is wholly inconsistent with the Corps’ environmental protection mission and with the Corps’ statutorily mandated goal of no net loss of the nation’s wetlands. Specifically:
· This practice is at odds with the implementing regulations of the National Environmental Policy Act, and the Section 404(b)(1) Guidelines, both of which require mitigation for wetland impacts that cannot be avoided. 40 C.F.R. § 1508.20; 40 C.F.R. § 230.10(d).
·This practice is at odds with Executive Order 11990, which since 1977 has directed every federal agency to provide leadership and take action to minimize the destruction, loss, or degradation of wetlands, and to preserve and enhance the natural and beneficial values in carrying; out agency responsibilities. Indeed, this Executive Order specifically compels the Corps to avoid draining, dredging, and filling wetlands. The courts have held that Executive Order 11990 is judicially enforceable and should be given the full force and effect of law.
·This practice is at odds with national farm policy and the federal government’s significant efforts to take excess and environmentally sensitive croplands out of production, and to remove incentives for draining wetlands to enhance crop production.
· For floodplain wetlands, this practice is at odds with Executive Order 11988, which since 1977 has directed all federal agencies to take action to “restore and preserve the natural and beneficial values served by floodplains” in carrying out their water resources activities. This Executive Order was passed to help reduce flood damages by protecting the natural values of floodplains and reducing unwise land use practices in the nation’s floodplains.
· This practice is at odds with the long-standing bipartisan national policy of no net loss of wetlands which was established under the first Bush Administration, and which was codified as to the Corps in the Water Resources Development Act of 1990.
Congress should put a stop to this outdated practice. American Rivers strongly urges Congress to prohibit the Corps from claiming project benefits for increased value of privately owned property and services, or increases in the quantity of privately owned property, derived from draining wetlands, as provided in S. 1987 and S. 646.
American Rivers respectfully urges Congress to act quickly and decisively to restore credibility to the Corps’ civil works program. The absence of meaningful review, the absence; of clear requirements to ensure full and ecologically sound mitigation, and outdated methods of predicting project benefits, have created a climate where abuse has flourished. Without these long overdue reforms, these abuses will continue—and the environment and the taxpayers will continue to suffer. ‘We urge you not to pass another Water Resources Development Act unless these reforms are included. American Rivers would like to work with the Committee to make these reforms a reality.
 U.S. Army Inspector General, Report of Investigation, Case 00-019, 2000, at 8.
 The National Academy of Sciences has also found that the Corps is making unsupportable decisions in its Clean Water Act Section 404 regulatory program through which the Corps is responsible for protecting the nation’s rivers, streams, and wetlands. National Research Council, Compensating for Wetland Losses Under the Clean Water Act at 6, 2001, “Conclusion 4: Support for regulatory decision making is inadequate”); at 6. The General Accounting Office has similarly concluded that many Corps districts have touted the success of wetlands mitigation required under the Corps’ regulatory program without having any data to support those claims and without having bothered to assess whether the mitigation efforts have been ecologically successful. General Accounting Office, Wetlands Protection, Assessments Needed to Determine Effectiveness of In-Lieu-Fee Mitigation, 2001, at 3.
 Ricciardi, Anthony and Rasmussen, Joseph B., “Extinction Rates of North American Freshwater Fauna”; Conservation Biology; 13 (5), October 1999, at 1220.
 National Research Council, Riparian Areas: Functions and Strategies for Management, 2002, at 2.
 National Research Council, New Directions in Water Resources Planning for the U.S. Army Corps of Engineers, 1999, at 4, 21, 61-63; National Research Council, Inland Navigation System Planning: The Upper Mississippi River-Illinois Waterway,, 2001, at 25-28; 53-54; US Army Inspector General, Report of Investigation, Case 00-019, 2000, at 7-8.
 General Accounting Office, Delaware River Deepening Protect Comprehensive Reanalysis Needed, GAO-02-604, June 2002 at 5.
 U.S. Army Inspector General, Report of Investigation; Case 00-019, 2000, at 8.
 Leonard Shabman & Laura Zepp, “An Approach for Evaluating Nonstructural Actions with Application to the Yazoo River (Mississippi) Backwater Area”; February 7, 2000 (Prepared in cooperation.with the U.S. Environmental Protection Agency, Region 4); Shabman and Zepp Review Comments on “Yazoo Backwater Reformulation” dated September 24, 2000. Dr. Shabman has participated in a number of National Academy of Sciences panels reviewing Corps activities.
 The Corps also claims that all of the wetland impacts of the Yazoo Pumps could somehow be mitigated by the purchase of 17,028 acres of conservation easements. However, the Corps is not proposed any mitigation for the project. Instead it has proposed a goal of purchasing conservation easements that, as discussed in the mitigation section below, cannot be met.
 U.S. Fish and Wildlife Service, Considerations in the Pricing of Flowage Easements: A Case Study of Non-Structural Flood Control in the Big Sunflower River Basin (October 1997).
 The Oregonian, “Key parts of corps analysis don’t hold water”, March 3, 2002.
 The Oregonian, “`Digging deeper’ in Columbia”, March 10, 2002. The Corps noticed the new study on March 19, 2002 (67 Fed. Reg. 1246).
 Michael Grunwald, “A Race to the Bottom”, The Washington Post, September 12, 2000, at A 15.
 For example, the General Accounting Office is currently investigating the Corps’ analysis of the $108 million Oregon Inlet Jetties project.
 Editorial, “Wet Elephant”, The Washington Post, January 5, 1987, at A16.
 Memorandum from Robert H. Griffin, Major General, U.S. Army, Director of Civil Works, April 30, 2002.
 The Corps’ already battered credibility took yet another hit when just a few days later it released a “corrected” list under the project “pause” directive that deviated in significant ways from the first list. The second list identifies only 164 projects as having been reviewed, clearing 80 to proceed (with the remainder already undergoing reevaluation due to previously identified problems). Again only eight projects were said to require additional review as a result of the review process. With no explanation, the Corps completely removed from the second list some of the worst projects that were identified on the original list with the nomenclature “review complete,” including the Grand Prairie Irrigation Demonstration Project in Arkansas, the Yazoo Pumps Project in Mississippi, and the St. John’s Bayou Project in Missouri. In addition to being costly, each of these projects is highly controversial and would destroy some of America’s most valuable wetlands and aquatic habitat. Because the Corps has left the public completely in the dark on the process used in its review, we can only conclude that although the Corps originally announced to Congress and the public that these projects had in fact been reviewed, the reviews never occurred.
 Editorial, “Backpaddling”, St. Louis Post-Dispatch, May 6, 2002.
 Environmental threats from this project include severely damage to the banks of the Delaware River, its wildlife, and nearby drinking water wells and aquifers.
 This study was prompted by National Marine Fisheries Service and U.S. Fish and Wildlife Service Biological Opinions on the impacts of operation of the navigation dams on four Federally endangered salmon stocks.
 National Research Council, Compensating for Wetland Losses Under the Clean Water Act 2001, at 2.
 R. Eugene Turner, et al., “Count It by Acre or Function-Mitigation Adds Up to Net Loss of Wetlands”, National Wetlands Newsletter, November-December 2001.
 33 U.S.C. § 2317(a)(1).
 Final Project Report and Supplement No. 2 to the Final Environmental Impact Statement, Flood Control, Mississippi River and Tributaries, Yazoo Basin, Mississippi, Big Sunflower River Maintenance Project, Volume’l, Project Report, Supplemental Environmental Impact Statement, and Appendices A-C, July 1996, at Appendix B, U.S. Fish & Wildlife Coordination Act Report at i. At least 443 acres of bottomland hardwood wetlands and 476 acres of farmed wetlands will be destroyed, and an additional 2,712 acres of wetlands will be severely impacted. Id.
 As of June 24, 1999, the Corps’ Vicksburg District was legally obligated to implement compensatory mitigation on well over 25,000 acres that had yet to be purchased. That backlog did not include the mitigation required in the Vicksburg District for the Mississippi River Mainline Levee Project that includes the purchase and reforestation of an additional 5,200 acres of frequently flooded agricultural lands. Letter and Attachments from Joseph W. Westphal, Assistant Secretary of the Army (Civil Works) to Melissa A. Samet, Attorney, Earthjustice Legal Defense Fund (August 9, 1999).
 Response to September 25, 2000 Freedom of Information Act Request submitted by Melissa Samet, Earthjustice, requesting information and data on the Corps’ wetlands monitoring program in the Vicksburg District.
 General Accounting Office, U.S. Army Corps of Engineers Scientific Panel’s Assessment of Fish and Wildlife Mitigation Guidance, GAO-02-574, May 2002 at 4 n.2.
 General Accounting Office, Wetlands Protection, Assessments Needed to Determine Effectiveness of In-Lieu-Fee Mitigation, 2001, at 3.
 National Research Council, Compensating for Wetland Losses Under the Clean Water Act at 6, 2001, (“Conclusion 4: Support for regulatory decision making is inadequate”); at 6.
 33 U.S.C. § 2283(d).
 General Accounting Office, U.S. Army Corps of Engineers Scientific Panel’s Assessment of Fish and Wildlife Mitigation Guidance, GAO-02-574, May 2002 at 4. The Corps provided the mitigation planning information for 150 projects that it says were authorized between the Water Resources Development Act of 1986 and September 30, 2001 that received construction appropriations. Id.
 Information supporting the GAO’s May 2002 Study entitled U.S. Armv Corps of Engineers Scientific Panel’s Assessment of Fish and Wildlife Mitigation Guidance. The list of projects was provided to American Rivers by the U.S. Army Corps of Engineers upon request.
 The Environmental Protection Agency gave the Corps’ environmental impact statement for this project a rating of EU2. The criteria for that rating, which includes the quote above, is described at http://ww`v.epa.gov/compliance/nepa/comments/ratings.html.
 The Environmental Protection Agency gave the Corps’ environmental impact statements for each of these projects a rating of E02. The criteria for that rating, which includes the quote above, is described at http://www.epa.gov/compliance/nepa/comments/ratings.html.
 Protection of Wetlands Executive Order (Executive Order 11990), reprinted in 42 U.S.C. § 4321. As importantly, Executive Order 11990 provides that each federal agency: “shall avoid undertaking or providing assistance for new construction located in wetlands unless the head of the agency finds (1) that there is no practicable alternative to such construction, and (2) that the proposed action includes all practicable measures to minimize-harm to wetlands which may result from such use.” Id. at Section 2(a). The term “‘new construction” is defined to include “draining, dredging, channelizing, filling, diking, impounding and related and any structures or facilities begun or authorized after the effective date” of the Executive Order. Id. at Section 7(b).
 City of Carmel By-the-Sea v. United States Dep’t of Transportation, 123 F.3d 1142, 1166 (9th Cir. 1997); City of Waltham v. United States Postal Service, 786 F. Supp. 105, 131 (D. Mass. 1992). The courts also have found that this Executive Order imposes duties on federal agencies beyond those of NEPA. It requires a specific finding that no practicable alternative to the proposed action exists. City of Carmel, 123 F.3d at 1167.
 The Food Security Act of 1985 and the Erodible Land and Wetland Conservation Program, 16 U.S.C. § 3 801 et seq., encourage the removal of fragile lands from production and provide various opportunities for wetland habitat protection and restoration. A special conservation provision in this Act, known as “Swampbuster,” removes incentives for draining wetlands by eliminating most agricultural subsidies to farmers who drain wetlands to enhance crop production, or who produce commodities on wetlands converted after 1985.