Research Concludes Mississippi River Sediment Load Insufficient to Sustain Coastal Louisiana

The Mississippi River does not carry enough sediment through Louisiana to sustain much less restore coastal Louisiana. That has been my nightmare fear since I began studying this subject years ago. It has also been a theme of this blog and an important argument for the monetary liability of the federal government for the damage to coastal wetlands in Louisiana. Unfortunately, the situation may be even worse than I thought.

I have long believed that one of the most important causes of coastal land loss in Louisiana has been the construction of dams and slackwater navigation pools in the Mississippi River and its tributaries. The most significant of these tributary dam systems have been in the Missouri and Arkansas Rivers. These dams have all been built by the federal government with the most important built by the United States Army Corps of Engineers and additional dams built by the Bureau of Reclamation in the United States Department of the Interior. The construction of these dams has reduced the sediment load in the Mississippi River passing through Louisiana by over 50%.

Over the last year or so, I have traded a small set of email correspondence with Michael D Blum, a now former geology and geophysics professor at Louisiana State University. Blum has been conducting research on the amount of sediment carried by the Mississippi River and the river's potential for carrying sediment in the absence of the dam systems. His research is being published on Sunday June 28th in Nature Geoscience in an article entitled,  "Drowning of the Mississippi Delta due to insufficient sediment supply and global sea-level rise." A fee is required for the purchase of the article. Blum's co-author is LSU professor emeritus of Oceanography and Coastal Sciences, Harry H. Roberts.

Sadly, this article concludes that even if the dams in the Mississippi River tributaries were removed, the rate of global sea rise would still more than offset the sediment deposit from the Mississippi River were the river and the coastal wetlands reconnected.

If this research is accepted as accurate, this leaves Louisiana with some rather stark and unpleasant decisions that need to be made. Some of the early decisions will concern what efforts will be made to reconnect the river to the wetlands and how will the limited sediment supply be allocated to sustaining some portion of the coast. Implicit in this decision is the question of what areas will be abandon. I again also raise the question of whether the federal government should be held financially responsible for the loss of the coastal wetlands in a court of law. A related judicial question concerns whether the federal government should be compelled to consider the impact on coastal Louisiana of actions in the management of the Mississippi River system including the tributaries far to the north of Louisiana. Numerous existing federal statutes would appear to require this consideration.

Congratulations to Dr. Michael Blum and Dr. Harry H. Roberts on the publication of their article and on the completion of his research.

Erich P. Rapp.

WLAE-TV Launches Coastal Restoration Initiative, Category Five/Wetlands Watch

On June 5, 2009, WLAE-TV broadcast the first of a six part monthly series on coastal wetland land loss and what is needed for restoration. WLAE is the PBS affiliate in New Orleans. The series is intended as an in-depth examination of  the problem with coastal land loss in Louisiana and what can be done to protect and restore the coastal wetlands.

The first episode was aired on Friday June 5, 2009. It featured an interview with Bob Marshall, a journalist with the Times Picayune. Following the interview, the half hour documentary, Harvest to Restore was broadcast.

The plan is to continue the series for six months. The program will provide viewers with the basic information on how the coast was formed and why it is now being lost. The series will also examine the economic importance of the Louisiana coast on the fishing, oil and shipping industries and how the land loss is impacting all of the United States. Finally, the series will present current thinking on solutions to the coastal land loss problem.

I am encouraging everyone to watch this program as it is broadcast. The individual programs in the series are also being posted on at Category Five/Wetlands Watch, which is a web site dedicated to the show where the episodes can be viewed subsequent to broadcast.

Erich P. Rapp.

Trial in Lawsuit Against Corps over MRGO Concludes

The trial against the Corps of Engineers related to the role of the Mississippi River Gulf Outlet (MRGO) in Hurricane Katrina flooding has concluded. The trial has largely been a classic example of dueling expert witnesses. Plaintiff experts concluded that MRGO played a major role in the flooding after Hurricane Katrina and the Corps experts concluded that MRGO played essentially no role in the flooding after Hurricane Katrina.

The process of preparing and filing post trial briefs will likely take several months with submission of the case to Judge Duval being completed by August. The Judge will then review the evidence and make his decision which will almost inevitably be appealed to the United States Fifth Circuit Court of Appeals and even possibly the United States Supreme Court. The ultimate outcome is likely a number of years away.

Nevertheless, the fact that a trial has been held and a trial court decision will likely result is remarkable in itself. Very few cases of this sort get to the point of a trial. As Justice Oliver Wendell Holmes once said, "Making claims against the federal government requires turning square corners." The lawyers for the plaintiffs in this case seem to have some capacity for "turning square corners." The outcome of this suit has enormous significance for coastal Louisiana. Many of the legal principles presented by the lawyers for the plaintiffs would also be useful in making other types of claims against the federal government for Louisiana coastal wetland land loss.

Mark Schleifstein has published an article in the New Orleans Times Picayune on Thursday May 14, 2009 at 8:55 PM entitled, MR-GO flooding suit in judge's hands, which details events at the end of the trial.

Erich P Rapp.

Corps Questioned Over Boasts of their Post Katrina PR Firm

The undeniable facts are that Hurricane Katrina struck New Orleans. After the hurricane 80% of the geographical area of the city was flooded as a result of hurricane protection levees and flood walls failing and being overtopped. After the catastrophe, the media ran many news accounts critical of the Corps' design and construction of the hurricane protection levees and flood walls. Eventually even members of the Corps admitted failings regarding the facilities.

Subsequently, the Corps hired the public relations firm, Outreach Process Partners (OPP) to assist them with media relations.  An Associated Press story suggests the Corps' contract with OPP has a value of $5.2 million.

As part of the PR firm's own business development efforts, it published a description of its work for the Corps. In this description, the PR firm claimed that it "fosters strategic relationships with media outlets that result in more accurate and balanced stories." 

OPP then claimed that "OPP's media support has been a fundamental part of the transition from typically negative news coverage to more neutral and positive news coverage. They then included a graphic showing how many negative news stories about the Corps had appeared before their efforts and how few appeared after they began helping the Corps.

Sandy Rosenthal and Levees.org publicly criticized the PR contract as wasteful spending. Rosenthal and Levees.org have frequently criticized the Corps since Hurricane Katrina.  

The Corps has responded that OPP was not hired to engage in news spin and OPP quickly changed their web site to remove the claims of changing the news coverage from negative to positive. 

The controversy has been covered by various media outlets including the Huffington Post's article entitled, Army Corps of Engineers in New Orleans: Buying Advice or Spin? Other news accounts include articles from CBS News and the Associated Press.

 Whenever someone is speaking to me about public policy and they claim to be "giving me the straight information" without "news spin" and they use words like "fair," "accurate," or "balanced" to describe their news accounts,  I generally conclude that the speaker is trying to spin me like a top. Some other phrases that put me on guard are "telling it like it is" and "common sense" accounts of things. In my opinion, all of these are code words for someone about to try to persuade the listener to see the world as they do. The training and formulation that goes into these efforts is what public relations firms do.  

I guess the Corps figured if they were going to try to persuade the public to see events as they saw them that they needed $5.2 million worth of training and advice on how to do that. Admittedly, law firms including my own and their private clients seek training and advice from public relations firms all of the time. Of course, they are not generally spending taxpayer dollars. Apparently, however, the Corps is not prohibited from hiring a public relations firm to help it and in this  case the Corps did hire such a firm to much apparent success according to OPP's news story graphic (at least until now).

Erich P Rapp.  

Feds to pay Louisiana $242 million for coastal restoration

The U.S. Department of Interior will give Louisiana $242 million over the next two years for coastal restoration and protection projects. These funds are the result of the Energy Policy Act of 2005 which created the coast impact assistance program. The funds come from federal offshore oil and gas leasing and production.

According to the Baton Rouge Advocate article on Friday April 24, 2009 entitled, State to get millions for coastal restoration, Carlton Dufrechou, executive director of the Lake Pontchartrain Basin Foundation and P.J. Hahn, administrator for coastal zone management in Plaquemines Parish, expressed their gratitude for the funds. U.S. Senator Landrieu stated, “It reminds us that a thriving oil and gas industry provides many benefits to Louisiana.”

Erich P. Rapp.

Thibodeaux Receives Arbor Day Foundation's Frederick Law Olmsted Award

On this blog, I write frequently about the "big picture" and what needs to be done by the federal government to preserve and restore Louisiana's coast. The important examples set by individuals, however, symbolize the American spirit and individuals through their actions can inspire a nation to act. Bob Thibodeaux is one such individual.

On April 25, 2009, Bob Thibodeaux of Church Point, Louisiana received the prestigious Frederick Law Olmsted Award from the Arbor Day Foundation for his dedication to planting trees and conservation. Mr Thibodeaux is the owner of Bob's Tree Preservation which has been in business since 1964.

In 2007, Thibodeaux founded Acorns of Hope, a coastal preservation project that is adding 10,000 oak trees to the coastal regions of Louisiana, Mississippi, and Texas through 2012. He has collected acorns from historic Louisiana oak trees and nurtured them in his tree preserve. He then travels from community to community planting these trees and educating young people about the benefits of planting trees. Thibodeaux teaches that oak trees are adaptive and can slow the rate of coastal erosion and the winds of hurricanes.

For more on Mr. Thibodeaux's efforts, please see the article in the Lafayette Advertiser dated April 25, 2009 entitled, Company owner honored, Arbor Day Foundation recognizes Thibodeaux for regional dedication.

Thank you Mr. Thibodeaux for your individual effort to preserve the coast of Louisiana.

Erich P. Rapp.

MRGO/Katrina trial against Corps Continues with Great New Orleans Community Interest

The civil case against the US Army Corps of Engineers being presented in United States District Court in New Orleans continues. The six plaintiffs are presenting their case against the Corps of Engineers to District Judge Stanwood Duval. The stakes to the community are very high. The Corps of Engineers believe the potential damages may be as much as $100 billion.

The basis for the community's complaint against the Corps of Engineers is the Corps design, construction and maintenance of the Mississippi River Gulf Outlet ("MRGO") which is blamed for funneling hurricane storm surge toward St. Bernard Parish and New Orleans during Hurricane Katrina. Because of the damage that MRGO has caused to the coastal wetlands south of New Orleans, the Corps has closed the waterway to navigation.

For a good account of why this trial is so important to members of  the New Orleans and St. Bernard Parish communities, see the news article by Patrik Jonsson published in the April 22, 2009 edition of the Christian Science Monitor entitled, Katrina trial: New Orleans truth commission which is an apt title if I have ever seen one.

Special thanks to the Patrik Jonsson, Christian Science Monitor and other national media publications for sending reporters to follow this important trial. Thanks also to the Christian Science Monitor for their past thoughtful coverage of coastal issues in Louisiana. We need the help of the nation as a whole if we are going to address the loss of coastal wetlands in Louisiana.

Erich P Rapp.

Trial against Corps about Katrina Damages from MRGO Begins

The trial in federal district court against the Army Corps of Engineers concerning damage from Hurricane Katrina caused by the Mississippi River Gulf Outlet began today. The claims of six plaintiffs against the federal government are being heard over the next month by United States District Court Judge Stanwood Duval.

The plaintiffs contend that the Corps' improper design, construction and maintenance of the Mississippi River Gulf Outlet ("MRGO") caused the flood waters of Hurricane Katrina to damage their homes and businesses. The Corps has repeatedly responded that they are immune from such lawsuits.

The result of this trial and any subsequent appeals have potentially far reaching impacts. This blog has repeatedly discussed the potential for federal liability for damages as a result of the loss of coastal wetlands in Louisiana. It has been a central theme of this blog that the federal government's improper design, construction and maintenance of various structures in the Mississippi River drainage basin have cause the loss of coastal wetlands in Louisiana. If the plaintiffs in the MRGO lawsuit are successful. The result will validate some of the core arguments that I have put forward in this blog. 

The federal government has granted the public a tort action against the federal government in some instances. This right is contained in the Federal Tort Claims Act. In the MRGO case, however, the Corps seeks to have the tort suit dismissed claiming that certain immunities prohibit tort claims in this situation. First, the Corps claims immunity from liability for the failure of flood control structures. This immunity is contained in a separate federal statute. The judge has, however, responded that MRGO is not a flood control structure. It is a navigation facility. Thus, the immunity does not apply.

Second, the Corps claims that the decisions related to the design, construction and maintenance of MRGO are "discretionary acts" and as such they are immune from tort liability resulting from the exercise of such discretionary decision making. While generally, the federal government is not liable for exercising their discretionary judgment, federal officials have many complicated legal responsibilities when constructing a large project like MRGO. Because of various statutes protecting other societal values such as bald eagles, historic sites and the property rights of those whose land will be damaged by a federal project, federal officials have to consider and respond to these many other societal values. The failure to properly consider and account for these other societal values is not within the federal official's "discretion" and thus when damage occurs in the absence of such proper consideration, the federal government is not immune from liability.

For more information on this trial, see the New York Times article of Monday April 20, 2009 by John Schwartz entitled, Civil Lawsuit over Katrina Begins. See also the New Orleans Times Picayune article on Monday April 20, 2009 by Susan Finch entitled, St. Bernard wetlands changed dramatically after MRGO was built, geologist testifies.

Erich P. Rapp.

Mississippi River Gulf Outlet Closes to Navigation on April 22

The Mississippi River Gulf Outlet closes to navigation on April 22, 2009 at Bayou La Loutre near Hopedale according an announcement from the Corps of Engineers. After that date, vessels will no longer be able to navigate that area because of a rock barrier that the Corps is constructing.

The Mississippi River Gulf Outlet, aka MRGO, has been the subject of much criticism for its role in causing flooding in New Orleans during hurricane Katrina and for its role in destroying coastal wetlands through among other things saltwater intrusion.

For more information on the closure of MRGO to navigation, see the New Orleans Times Picayune news article of April 16, 2009 entitled, Mississippi River Gulf Outlet to Close to Navigation April 22 at Bayou LaToutre.

Erich P. Rapp.

Jindal Announces Plan to Pump Mississippi River Mud into Coastal Wetlands

On Tuesday April 14, 2009, Louisiana Governor Bobby Jindal announced plans to use a pipeline to pump Mississippi River mud into the Louisiana coastal wetlands. This process would, of course, mimic the sediment delivered to the coastal wetlands from annual flooding in earlier times.

This test is called the Mississippi River Sediment Delivery System at Bayou Dupont. Governor Jindal hopes that this test of pipeline sediment delivery will be successful and that many more such projects will be built. The project will cost about $28 million and will involve a 36 inch diameter pipeline running 6 miles from the Mississippi River to Bayou Dupont. The project is on the east side of the Mississippi River in Plaquemines Parish below New Orleans. It is expected that the project will be completed in August 2009.

For more information on this project, see the Baton Rouge Advocate article of Wednesday April 15, 2009 written by Cain Burdeau entitled, La. to pipe Mississippi River mud to help wetlands

Erich P. Rapp