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

 The fifth episode of Category Five/Wetlands Watch will be on WLAE-TV at 8 PM on Friday October 2nd. Category Five/Wetlands Watch is a PBS series concerning coastal restoration efforts in Louisiana. The show is an examination of the problems and challenges associated with Louisiana coastal land loss and efforts to protect and restore the coast.

• Email This
• Print
• Comments
• Trackbacks

I attended the America's Energy Coast hearing today at the Intercontinental Hotel in New Orleans.  I want first to thank the various members of the oil and gas industry for appearing and explaining what is happening with regard to their businesses in coastal Louisiana and along the northern Gulf of Mexico generally. The information that they have provided is invaluable to the larger issues that I will discuss below.

Nevertheless, I left the hearing with feelings of hope and disappointment. I am heartened that America's Wetland Foundation has decided to ask various stakeholders in coastal Louisiana what obstacles they face in managing their interests in the Gulf of Mexico coastal zone. That is an important, but isolated step in achieving a sustainable coast.

I am, however, concerned that some of the observations by all concerned were long on politeness and short on reality. That is a natural result of everyone being in the same room at the same time. Now, I feel very strongly that diplomacy is important. Ugly talk gets no one anywhere in a cooperative venture like this. For the future, however, I think the format for making cooperative public policy progress on a sustainable northern coast of the Gulf of Mexico needs to be revised.

Once America's Wetland Foundation has a broad inventory of  the concerns and interests from various powerful stakeholders in the Gulf coast region, everyone needs to take a further step. The stakeholders should explore what each stakeholder is willing to contribute and "give up" to achieve what they need and want the most with, of course, the ultimate objective being the restoration of coastal wetlands along the northern Gulf of Mexico.

In the end, this objective is not achieved through a conference or "hearing." It is achieved by shuttle diplomacy between the stakeholders as they explore ways to achieve their needs and wants while contributing technical talent, political support and money to a master plan aimed at accomplishing the larger objective of the restoration and protection of coastal Louisiana and the northern coast of the Gulf of Mexico.

I believe in the final analysis, through a process of shuttle diplomacy, the major stakeholders including the State of Louisiana, the federal government, the representative companies of the oil and gas industry, the Louisiana coastal wetlands restoration organizations, and the larger environmental protection organizations could agree upon a plan for comprehensive coastal restoration and protection in Louisiana and along the northern coast of the Gulf of Mexico.

In my dreams, the oil and gas industry, the state of Louisiana and the environmental movement (such as the Environmental Defense Fund and the Audubon Society) would all jointly support a single comprehensive public policy program led by the federal government for the restoration and protection of coastal Louisiana and the northern coast of the Gulf of Mexico generally. This could be achieved through Shuttle Diplomacy. We just need the right set of diplomats.

 Erich P. Rapp.

• Email This
• Print
• Comments
• Trackbacks

The America's Energy Coast Leadership Forum issued the following press release on July 30, 2009:

Obama Administration, Congress Urged to Resolve Inconsistent Federal & State Policies that Hamper Coastal Progress

• Email This
• Print
• Comments
• Trackbacks

It is pretty hard for someone to surprise me with an archival document find on the Mississippi River Delta these days, but it has happened today.  Len Bahr published an article in his La Coast Post Blog on July 31, 2009 entitled, The Mississippi River delta – what the corps knew and when they knew it! I thought that I had seen the best stuff in my research. I, however, had not ever seen the December 1897 National Geographic article entitled, The Delta of the Mississippi River. Bahr claims to have received the article from a retired general that at one time was the commander of the Mississippi River Valley Division of the Corps of Engineers.

Read the first paragraph on page 354 of the National Geographic article linked above.

The level of knowledge that this author and the Corps had in 1897 about the coast of Louisiana and the impact on the coastal wetlands of depriving sediment from the river is stunning even by my jaded and cynical standard. The article actually discusses the costs and benefits of purposely destroying the coastal wetlands, and what would ultimately have to be done in a few generations in response. I cannot say it frequently enough. I am stunned at the statements in this article. 

This is further proof of the "BIG LIE." I have long believed that the statements in the modern Corps reports on Louisiana coastal wetland loss that claim the problem was discovered in the 1970's were a lie likely aimed at better public relations and at avoiding the knowledge piece of any negligence claim made against the federal government for the damage to the Louisiana coastal wetlands. The Corps has long admitted causing the damage to coastal Louisiana, but also claimed they did not know it was going to happen when they did what they have done to destroy the wetlands. I have called those types of statements the BIG LIE. I have previously found materials from the 1930's to 1960's that contradict the Corps statements about discovery of the problem and have even published some of the items here. I, however, have never found anything from the 1800's this explicit, and I have never found someone, anywhere, actually discussing the costs and benefits of destroying the wetlands before the federal government undertook the action that led to their destruction.

I also find it interesting that the person giving this article to Len Bahr is a retired Army General from the Corps. I would love to know when and where he first discovered this article.

Erich P Rapp.

• Email This
• Print
• Comments (1)
• Trackbacks

The sleeping bear's eyes may have begun to open. Perhaps the Corps of Engineers is signaling that it will begin acknowledging that the management of the entirety of the Mississippi River is connected to the health of the coastal wetlands in Louisiana. In a front page story on Sunday July 5, 2009 in the Baton Rouge Advocate Richard Burgess writes an article entitled, Corps considers change in water flow into Atchafalaya. 

Nancy Powell, chief of the Corps' New Orleans district hydraulics and hydrologic branch, suggests that the Corps might operate the Old River Control Structure at the northern end of the Atchafalaya River in the interest of Louisiana coastal restoration and preservation. It seems like an obvious thing to do, but the reality and symbolism of the Corps making this philosophical shift in policy would be profound.

At a time when the Corps was just beginning to manage the Mississippi River for the purpose of navigation, the Red River was a tributary entering the Mississippi River at the northern side of what was called Turnbull Bend. In turn, the Atchafalaya River was a distributary exiting the main channel of the Mississippi River at the southern side of Turnbull Bend. In 1831, Captain Henry M. Shreve, an early agent of the Corps, dug a canal through the neck of Turnbull bend. This canal called "Shreve's Cut" changed the flow of the river in a profound way. 

Shreve's Cut made it more likely the Mississippi River's main channel would change course and adopt the course of the Atchafalaya River's channel as the Mississippi River's main channel. In the 1950's, the Corps built the Old River Control Structure in an attempt to rectify its earlier misstep digging Shreve's Cut  and to prevent the eventuality of the Mississippi River changing course from happening. The structure has since then been used primarily for this purpose. And undoubtedly an important purpose it is. The economic damage that would be caused by the Mississippi River's main channel changing courses to adopt the Atchafalaya River's channel as the Mississippi River's own main channel would be extraordinary. 

The America's Wetlands web site has a good description of the Old River Control Structure and the history of Turnbull Bend along with some useful diagrams. The section of the web site is called Controlling the River.   

The operation of the Old River Control Structure at Simmesport is the very essence of management of the Mississippi River. The Corps has not historically even considered managing the river north of the Louisiana coastal zone with consideration of the impact of those actions on the coast of Louisiana. The Corps has, heretofore, managed the Mississippi River north of the Louisiana coastal zone as though the Mississippi River to the North of the coastal zone was not casually connected to coastal land loss in Louisiana.

By acknowledging the connection of the Old River Control Structure to coastal restoration and preservation, the Corps might manage the distribution of sediment load of the Mississippi and Red Rivers in a more strategic way to aid with coastal restoration and preservation projects. The gates or "dam" at the Old River Control Structure were built to allow for the passage of sediment in the river through the gates. This allows sediment to flow into the Atchafalaya River or remain in the Mississippi River at the Corps' choice. This design is different from other large earthen dams in the Mississippi River drainage basin that trap virtually all the sediment that enters the reservoir behind the dam. This, of course, suggests that dams could be built that do not trap sediment in the reservoir behind them, but that is another story entirely.

The idea that the Corps could operate the Old River Control Structure to help with coastal restoration and preservation in Louisiana is a small gesture. The Corps has not even yet decided what to do. Nevertheless, the acknowledgment of the connection is symbolically significant.  I have to agree with the Corps' Ms. Powell as quoted in the Baton Rouge Advocate article, "It's kind of exciting."

Erich P Rapp.

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments (1)
• Trackbacks

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.

• Email This
• Print
• Comments (1)
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

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.  

• Email This
• Print
• Comments (1)
• Trackbacks