Law, College of


Date of this Version



Published in Florida Law Review vol. 59 (2007), pp. 599-630. Published by University of Florida Fredric G. Levin College of Law, 115 Holland Hall. P.O. Box 117637, Gainesville, FL 32611.


Hurricanes are a natural, predictable phenomenon, yet the Gulf Coast communities were devastated by the hurricanes of 2005. One year after Hurricane Katrina struck, the U.S. Army Corps of Engineers responded to a congressional request for an accounting by admitting culpability for the destruction of New Orleans. Its structural defenses failed not because Congress had authorized only moderate Category 3 protection, which in turn let floodwaters overtop the city's levees, but because levees and floodwalls simply collapsed. The so-called network of federal and local structures was a haphazard system in name only, where floodwalls and levees of varying heights utilized mismatched materials that did not properly interface. The levees failed at the weakest points, which were maintained by local levee districts with little oversight or support from the Corps.

Katrina provides a vivid example that inter-jurisdictional rivers threatened with transboundary threats demand strong, coordinated federal leadership. The century-old management mission of the Corps does not reflect a cohesive national water policy; rather, it arises from a piecemeal 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. In the past, federalism has proven to be an obstacle to coordinated river management, but a more 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, sustainable conservation policies.

This essay proposes a federal Interior Rivers Ecosystem Organic Act that governs the management of the entire Mississippi River Basin. 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 Park Service, the Fish and Wildlife Service, the Bureau of Reclamation, and the Bureau of Land Management, it lacks an Organic Act to cabin its discretion. The Organic Act proposed here would reflect the close linkage between ecosystem integrity and human well-being, and it would establish an adaptive, holistic federal management strategy with clear parameters for the management activities of the Corps.