Legal analysis: California Department of Fish and Game moves to ...

Posted by: Maven on December 1, 2011 at 8:24 am

From Somach Simmons & Dunn:

?In June 2011, several environmental groups filed suit against the United States Army Corps of Engineers (?Corps?) in federal court seeking to invalidate a policy that mandates removal of vegetation along levees over which the Corps has responsibility. This vegetation removal policy was part of a larger program, allegedly initiated in 2007, designed to create vegetation free zones along levees that includes a fifteen-foot setback for trees and shrubs. According to the Corps, the rationale behind adopting such a policy is that vegetation can harm the integrity of levees, disrupt levee inspections, hinder levee access, and impede emergency flood fighting situations.

Plaintiffs in Friends of the River, et al. v. U.S. Army Corps of Engineers (E.D. Cal. filed June 20, 2011) No. 2:11-cv-01650 (?Friends of the River?) include several non-profit environmental organizations that contend implementation of the vegetation removal policy will result in the destruction of critical riparian forest habitat throughout California. These plaintiffs allege that the Corps? actions in adopting and circulating certain guidance and technical documents that call for vegetation removal, and describe the accompanying variance process, violated the Administrative Procedure Act (?APA?) and failed to comply with federal environmental requirements, including the National Environmental Policy Act (?NEPA?) and the federal Endangered Species Act (?ESA?).

The most recent development in the case is the filing of a motion for intervention by the California Department of Fish and Game (?DFG?) on November 7, 2011. The outcome of this litigation could have a significant impact on how California manages its levees, the continued existence of riparian forest habitat in the state, and the costs those responsible may incur for levee management and operation as a result of the policy. ? ?

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December 1, 2011 ? Filed Under Levees

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