Louisiana Coastal Wetlands Lawyer & Attorney : Erich P. Rapp : Kean Miller Law Firm : Serving New Orleans, Baton Rouge, Shreveport, Louisiana

As the Corps of Engineers closes gates on the Bonnet Care spillway and the water level on the Mississippi River goes down, Louisiana has lost a once in a decade opportunity to divert an enormous amount of river sediment into the coastal wetlands of Louisiana. Times of high water on the Mississippi River are very important times in the coastal wetlands land building process. Unfortunately, we were not prepared to take advantage of this rare opportunity and the loss of coastal wetlands continues.

According to Chris Kirkham's Friday April 18, 2008 article in the New Orleans Times Picayune entitled, State may be spilling coast's rescue, the recent high water event on the Mississippi River brought 900,000 tons of river sediment through the state and into the Gulf of Mexico.

If the Corps of Engineers had been better prepared to divert a large portion of the sediment into the coastal wetlands, the condition of the coastal wetlands might have improved this spring. The Corps of Engineers needs to change the river management to take advantage of the next high water level event.

Erich. 

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I have long contended that the federal government is subject to suit in tort for the damage that they have caused to Louisiana's coastal wetlands. United States Federal District Court Judge Stanwood Duval entered a ruling on Friday May 2, 2008 supporting this position.

On Friday, Judge Duval held that the United States Army Corps of Engineers is subject to suit for alleged defects in the Mississippi River Gulf Outlet ("MRGO") that destroyed wetlands and are alleged to have turned MRGO into a funnel for hurricane storm surge. MRGO is a navigational canal build and operated by the Corps connecting the Gulf of Mexico to the Inner Harbor Navigation Canal also known as the Industrial Canal in New Orelans via the Gulf Intracoastal Waterway.

Judge Duval rejected the Corps' claim that federal law makes the agency immune from lawsuits over damage caused by its flood protection projects. The judge found that because the navigational channel is not part of the Lake Pontchartrain and Vicinity Hurricane Protection Plan, the Corps is not immune from suit.

The ruling on Friday is not a final decision in the case. It does not find that the Corps is liable for damages caused from flooding in East New Orleans, the 9th Ward and St. Bernard Parish. This determination will only be made at the conclusion of the trial.

For a more detailed account of the decision, see Susan Finch's article in the New Orleans Times Picayune entitled: Judge: Corps can be sued for flood.  

If ultimately upheld, this decision would support other tort suits against the federal government and the Corps of Engineers related to damage that the Corps has caused to Louisiana's coastal wetlands.

Erich P Rapp

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John Barry, the author of Rising Tide, has published an Op-Ed piece in the Los Angeles Times on Wednesday April 23, 2008 entitled: Who Should Pay to Protect New Orleans. I have never seen the cause of the coastal land loss problem described more succinctly or the solution described more accurately.

Barry points out what I have been saying less artfully for many years. The most fundamental reason that the coastal wetlands in Louisiana has been lost, particularly below New Orleans, is the reduction in the sediment load in the Mississippi River drainage system. This reduction has resulted from the construction of dams in the tributaries with particular emphasis on the dams built in the Missouri River in North and South Dakota. The lower portion of Louisiana's "bird's foot" did not erode to open water because of levees in Louisiana. Below a point, no levees separate the wetlands from the river and yet the land continues to dissolve into the Gulf. The problem is not the result of a local action.  

Louisiana derives no direct benefit from those Corps dams in the Dakota's and Montana. They were built to control flooding and improve navigation on the Missouri River. In fact, the Corps of Engineers claims that it has no authority to manage the Missouri River system and those dams for the benefit of the Mississippi River or its users in any way. The Mississippi River is treated as disconnected and unrelated to the Missouri River for all purposes that the Corps of Engineers considers.

John Barry is exactly right when he says the coastal land loss problem in Louisiana has been caused as the result of actions that benefited other parts of the nation far removed from Louisiana. The protection and restoration of coastal Louisiana is a national problem requiring federal action.

Erich P Rapp

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Louisiana Governor, Bobby Jindal, has asked the Army Corps of Engineers to change its organizational structure. Jindal wants the New Orleans District Office of the Corps to be come a Division Office reporting directly to the Corps headquarters in Washington.

At present, the New Orleans District Office of the Corps reports to the Division office in Vicksburg, Mississippi. This change would reduce the time required for the Corps to make decisions related to New Orleans and Louisiana coastal protection and restoration.

Garrett Graves, Governor Jindal's Director of the Office of Coastal Activities, made the formal request to the Mississippi River Commission in Vicksburg. Graves stated that the change was crucial now because the Corps was preparing to undertake $15 billion in repair and rebuilding of the region's hurricane protection flood system.

For more information on this request, se the New Orleans Times Picayune articled from Saturday April 12, 2008 entitled: Jindal seeks change in Corps of Engineers organization.

Erich P Rapp.

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The National Academy of Sciences has appointed a committee of  the country's top scientists to peer review the coastal protection and restoration plans of the Army Corps of Engineers in Louisiana. The National Academy of Sciences is the scientific adviser to the federal government.

At a meeting on Thursday April 3, 2008, the National Academy peer review committee and the Corps held a public meeting concerning the peer review committee's work. The peer committee was critical of the Corps' plans in a number of respects.

The question being considered at the meeting was whether the Corps plans to protect and restore the Louisiana coast will work. The National Academy scientists began by questioning the Corps basic strategy which is to maintain the coast as it currently exists. The National Academy scientists questioned why the Corps was not considering other alternatives such as creating new land and allowing some areas to erode.

The National Academy scientists also questioned whether the Mississippi River carried enough sediment today to maintain the coast as the Corps suggests that its plan would do.The scientists seemed surprised and upset that the Corps' representatives did not have a basic knowledge of how much sediment the river carried and had not taken steps to determine if the available sediment was sufficient to achieve the Corps' objectives. 

One of the National Academy scientists questioning the Corps was Robert Meade. Meade is retired from the United States Geological Survey. Meade is well known in the scientific community for his knowledge of sediment transport in rivers and particularly in the Mississippi River. The representatives of the Corps might serve themselves well to read some of the scientific articles that Meade has previously published on sediment transport in rivers.  

The question of sediment supply in the Mississippi River is critical to the success of any coastal protection and restoration project in Louisiana. The sediment load in the Mississippi River has declined sharply since the 1930's as a result of the extensive construction of dams and locks in the Mississippi River drainage system. Dams trap sediment in the reservoir behind the dam and the locks trap sediment in the slack water pool behind the lock. The most significant sediment transportation reductions have occurred in the Missouri River and Arkansas River which are tributaries of the Mississippi River.

For navigation purposes, sediment in the Mississippi River is a nuisance that requires dredging. Much of the Corps operations in the Mississippi River drainage system are centered upon navigation. This means that for most purposes north of Louisiana on the Mississippi River and its tributaries, the Corps would like to see as little sediment transport in the river as possible. This desire, however, runs counter to the needs of coastal Louisiana. These navigational needs have in the past and continue today to trump the coastal restoration and protection needs of Louisiana. When the Corps considers how it will build and operate projects north of Louisiana in the Mississippi River drainage basin, the sediment transportation needs of Louisiana's coast are not typically considered.

Congress had asked the Corps to deliver the Louisiana Coastal Protection and Restoration Plan in December 2007. Now the plan will not be delivered until December 2008. Further, Congress had asked the Corps to identify a set of coastal protection and restoration projects that could be started quickly. Instead, the Corps has now stated that its December 2008 plan will not "include the specific identification of a detailed plan." Instead, the Corps' report will include aspects that require additional study before Congress can fund and the Corps can begin construction of the projects ultimately included in the plan.  

The National Academy scientists led by Robert Dalrymple, a civil engineering professor at John Hopkins University also questioned this "further study" approach.  Dalyrmple suggested that Congress might have been trying to create a sense of urgency after Hurricanes Katrina and Rita for more immediate action.   

The National Academy scientists also questioned why the Corps report did not include a major diversion of the Mississippi River south of New Orleans as many scientists and environmental groups have recommended. Instead the Corps report will suggest a number of smaller diversions. 

For a more detailed description of this meeting, see Mark Schleifstein's article in the New Orleans Times Picayune of Saturday April 5, 2008 entitled: Reviewers Grill Corps on Coast Plans. 

Erich P. Rapp.

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In the next several years, Louisiana faces serious challenges funding the state's share of scheduled hurricane protection and coastal restoration projects. Louisiana's share of such projects scheduled for fiscal year (fy) 2009 is $1.2 billion. While Louisiana's recent special session received significant media coverage in part because of the appropriation of $300 million for hurricane protection and coastal restoration projects, this funding is far short of the money required to cover the state's burden for projects planned by the federal government.

Even when this $300 million additional appropriation is combined with the prior budget of $224 million, the state is still short of the needed funding for fy 2009. In 2010 and beyond, the state's funding challenges continue. Louisiana will need $748 million in 2010 and $642 million in 2011 to cover Louisiana's share of federal led hurricane protection and coastal wetland restoration projects with considerable emphasis in all of these years on hurricane protection projects.

These  projects are indispensable to the future of Louisiana, and the state will have to find new funding sources to cover the costs. Even if all of these scheduled projects are fully funded, the spending proposed for coastal wetland restoration and protection is still far short of the need.

Louisiana is no where near the level of funding needed for a material coastal wetland protection much less a restoration program.  For more information on these funding challenges, see March 19, 2008 Times Picayune article, Coastal Authority to Meet Today to Talk Funding. 

Erich P. Rapp.

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The New Orleans Times Picayune is reporting on its web site as of 9:40 PM on Wednesday March 26, 2008 that Patrick "Shea" Penland has died at age 54. The obituary is entitled, Shea Penland, important Louisiana coastal scientist, dies. 

According to the T-P article,

"Penland was the director of the Pontchartrain Institute for Environmental Sciences at the University of New Orleans. He earned an undergraduate degree in physical geography from Jacksonville University in Florida. He earned master's and doctoral degrees in coastal geomorphology from LSU. Since 1979, Penland has published more than 100 papers for scientific journals, conducted more than 30 field trips and led more than 30 sessions at scientific meetings on the evolution of coastlines."

Although I did not always agree with Penland, he was an important voice in support of the restoration of coastal Louisiana who will be missed. I offer my prayers and condolences to his family at this difficult time.

Erich P Rapp.

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The Baton Rouge Advocate published an article on Friday February 29, 2008 entitled, Southwest La. wants coastal aid. This article summarizes recent complaints from public officials in southwest Louisiana concerning the relative balance of limited coastal restoration funds between southeastern and southwestern Louisiana.

These officials complain that in the 2009 Coastal Restoration and Protection Authority (CRPA)budget a total of $14 million in funds are budgeted for southeast Louisiana projects and only $1 million in funds are budgeted for projects in southwest Louisiana.

The chairman of CPRA, Garret Graves, seems prepared to respond. He has indicated in a recent CPRA meeting that the Jindal administration is considering a restructuring of the board to allow more balance. The type of restructuring that is under consideration is using land mass or population to determine representation.

Erich P Rapp.

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One cause of coastal land loss in Louisiana is saltwater intrusion into the coastal wetlands. One cause of saltwater intrusion into the coastal wetlands are north-south navigation channels connecting the Gulf of Mexico with inland locations. The construction and subsequent dredging of these open water channels allow saltwater to move inland further than existing wetlands would otherwise permit.

The Mississippi River Gulf Outlet also known as MRGO is one such navigation channel. Along the course of this channel since it was built in the late 1950's, larger and larger bodies of open water at and near the main channel have developed.

After hurricane Katrina, MRGO was referred to as the hurricane highway and blamed for storm surge reaching into St. Bernard and Orleans Parish along the course of MRGO. This resulted in a lawsuit against the Corps of Engineers for resulting flood damage that is still pending in federal court as of this writing.

After the hurricane, the Corps of Engineers began receiving increasing political pressure to close MRGO. This has result in a study and recommendations from the Corps concerning the closure of MRGO. These reports and studies are available on line at the Corps website for the New Orleans district.

Erich. 

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