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

The National Wildlife Federation has recently released its "Hurricane Katrina Report Card."  The report grades Congress and the President in four areas: 1) Addressing Global Warming, 2) Reforming the U.S. Army Corps of Engineers, 3) Fixing FEMA, and 4) Restoring the Louisiana Coastal Wetlands.

With regard to Louisiana's coastal wetlands, the report gives Congress a "B." The report card praises Congress for: 1) directing the Corps to prepare a plan for closing the Mississippi River Gulf Outlet, 2) drafting a Water Resource Development Act (WRDA) that would authorize the first phase of a long-term plan for restoring Louisiana's deteriorating coastal wetlands and de-authorize the Mississippi River Gulf Outlet, and 3) allocating revenue from new offshore oil and gas leases to coastal states which will provide Louisiana with a dedicated revenue stream to fund coastal wetland restoration.

Congress is criticized for including the Morganza to the Gulf levee plan in the pending WRDA which will potentially damage the coastal wetlands. Further, Congress is criticized for delaying significant revenue from new offshore oil and gas leases from reaching Louisiana until 2017.  

The President is given a "D-" for his efforts regarding the restoration of the Louisiana coastal wetlands. The President is praised for objecting to the Morganza to the Gulf levee project. The President is criticized for his failure to demonstrate any sense of urgency, leadership, interest or commitment to Louisiana coastal wetland restoration in general and  to large scale diversion of sediment laden water from the Mississippi River into the wetlands that are essential to the restoration effort in particular.

It is also noted that the President blocked funding in 2003 of a long term comprehensive coastal restoration plan. Further, the report card notes that an early draft of the Corps' anticipated December 2007 report on hurricane protection will showed a disturbing preference for levees over a coastal restoration plan. This early draft also is noted for failing to consider how structural hurricane protection could destroy existing wetlands and thwart wetland restoration efforts.

Erich P. Rapp.

• Email This
• Print
• Comments
• Trackbacks

The August 2007 issue of National Geographic includes an article entitled New Orleans: A Perilous Future. The author, Joel K. Bourne, Jr. writes a fairly balanced feature taking input from a number of perspectives. The overall picture he paints is pessimistic in my opinion. One optimistic view, however, stands out.

Speaking with an optimistic vision of the future is Torbjorn Tornqvist, a Dutch coastal geologist, now teaching at Tulane University. Tornqvist views the struggle to save New Orleans as very important.  He sees New Orleans as a preview of  the need to protect other coastal cities like New York, Miami, and Boston in the years ahead as the global sea level continues to rise.

Tornqvist sees a new urban landscape adapted to climate change with restored wetlands, high tech flood gates, and a cleaner, greener and denser city of New Orleans. He concludes that the entire pre-Katrina population of New Orleans could live in the parts of New Orleans that did not flood. In the process, warehouses and blighted neighborhoods could be converted into walkable and sustainable neighborhoods on high ground. Tornqvist sees the situation as an opportunity for the city and nation.

His vision seems well described. We can only hope the leaders of the city and nation can live up to the vision for it.

Erich P Rapp

• Email This
• Print
• Comments
• Trackbacks

No one disputes the existence of property rights in coastal wetlands of Louisiana. People own wetland property. Nevertheless, the federal government destroys this property everyday and does not pay damages.  A claim for this damage could be made. Supreme Court Justice Oliver Wendell Holmes said a claim against the federal government required "turning square corners."  That may be so, and this claim is complex, but it exists. One of the purposes of this blog is to discuss  federal liability for damage to the coastal wetlands in Louisiana. That discussion will take many entries. Today, I begin with the philosophical.

When one owns property, what does one actually own. The Louisiana Civil Code art. 462 speaks of "tracts of land" as constituting immovable property. The coastal wetlands are tracts of land, and the government grants property rights in these wetlands.  The coastal wetlands, however, are not typical tracts of land. They exist not as a static thing but as the result of a dynamic process. The wetlands are continuously subsiding, and the flood waters of the Mississippi River were in the past depositing new sediment on that wetlands to offset the subsidence. When that process is disrupted, the land is destroyed. At present, the amount of sediment being deposited by the Mississippi River is not offsetting subsidence and thus, the coastal wetlands are lost to the open water.

I, thus, began wondering if the federal government had ever recognized and protected an interest in real property as a process, and not as a static tract of land. Amazingly, I found an answer to this question, not in a law book, but in a book on the Mississippi River written by landscape architects.

On page 48 of Mississippi River Flooding - Designing a Shifting Landscape by Anuradha Mathur and Dilip da Cunha, the authors describe the Stack Island Supreme Court case. 

In 1995, the United States Supreme Court decided the Stack Island case. The case involved 2200 acres of mud in the water course of the Mississippi River. In the early 1800's, the muddy acres were an island near the bank of the river on the Mississippi side. By the time of the case in the 1990's, supposedly the same muddy acres were no longer an island and were instead attached to the bank of the river on the Louisiana side. Nevertheless, the court found that these muddy acres on the Louisiana bank of the river were the same property that was an island in the river in the 1800's. The New York Times reporter, Hubert B. Herring writing about the case on November 5, 1995 asked, “Existential Geology Anyone?”

The Stack Island case gave me a new vision of the coastal wetlands. The coastal wetlands are not static land washing away. They are a dynamic process of subsidence offset previously by sediment deposit from the Mississippi River. Yet to the casual look, the wetlands are perceived as land just as any other land. With the Stack Island case, now in the eyes of the law, perception is reality or in this case "real property."  The property owners have a property right in the wetlands even if the soil making up the land changes in the dynamic process of subsidence and sediment deposit.  The Louisiana coastal wetlands are an “existential” property and legally protected as such. The wetlands are real property because they are perceived to be real property and not because they are once and always made up of the same soil.

Erich P Rapp

• Email This
• Print
• Comments
• Trackbacks

The Corps of Engineers claims it learned of Louisiana coastal land loss in the early 1970's.  The Corps' November 2004 Louisiana Coastal Area Ecosystem Restoration Study suggests discovery "in part" from the publication of a 1972 study. No earlier date is mentioned. Discovery in 1972 is not true "in part" or otherwise.

The Corps knew long before the1970's that Louisiana was losing coastal wetlands and that the cause was their management of the Mississippi River. They even knew the wetlands below New Orleans were being lost more quickly than wetlands to the west. As described in my prior blog entry, they also knew the consequences of the land loss on hurricane storm surges. 

Culpability is a function of knowledge. If the Corps knew when it took action that the action would cause damage, they have greater responsibility than if they did not know. Suggesting discovery in 1972 would tend to reduce responsibility for the consequences of  what the Corps did before.

On December 29, 1961, the Corps published: Interim Survey Report Mississippi River Delta At and Below New Orleans. The report was mentioned in my last blog entry about hurricane storm surge. In appendix B of this report on page B-2, it states:

 "The shorelines of the ponds, lakes, and bays within the marshland and the seaward edges of the marshland are being eroded by wave action. At present very little (and in the greater part of the area none) of the sediments carried down by the Mississippi River reach the marshlands. The bulk of the sediments is carried into the gulf and deposited along the outer continental shelf in the vicinity of the mouth of the river. Although wave action is contributing to the destruction of the marshlands, the irregular jagged shorelines in the area show that subsidence has been the dominant factor. Both subsidence and wave attack will continue in the future and unless sediment laden water is introduced into the area to replace material being lost, and to compensate for subsidence, the inland bodies of water will continue to enlarge and the seaward facing edges of the marshland will continue to retreat. This will happen much faster on the east side of the Mississippi River where the marshlands are more exposed to prevailing winds, and there is less to destroy." (emphasis added).

This 1961 report was not an original statement, but it was an eloquent one. More to come.

Erich P Rapp.

• Email This
• Print
• Comments
• Trackbacks

The US Army Corps of Engineers responded on August 13, 2007 to the Time Magazine story, The Threatening Storm. The Corps contends that the Time story contains "many errors and misrepresentations" and describes it as a "wreckless disregard for the truth." 

The Corps response appears to contain at least one significant omission. The response states: "The Corps acknowledges that wetlands have a beneficial role in storm surge and wave dissipation, but adequate quantitative information about that role has not been developed." 

At least as far back as December 29, 1961, the USACE published a report entitled: Interim Survey Report Mississippi River Delta At and Below New Orleans. Much of appendix A deals with hurricane storm surge and on page A-11, the report suggests the difficulty in finding meaningful correlations to specific characteristics of hurricanes. Nevertheless, the report reaches a very simple conclusion:

"The study of available observed high water marks at the coastline and inland indicates a fairly consistent simple relationship between the maximum surge height and the distance inland from the coast, as shown on plate A-6. This relationship exists independently of the speed of hurricane translation, wind speeds or directions. The data indicates that the weighted mean decrease in storm surge height inland is at the rate of 1.0 foot per 2.75 miles. The relationship remains true even in the western portions of Louisiana where relatively high chenieres, or wooded ridges, parallel the coast."  An excerpt of the report is linked.

The existence of coastal wetlands south of New Orleans decreases storm surge at New Orleans and the loss of wetlands increases storm surge at New Orleans. The Corps has known that for many years.

Erich P Rapp. 

• Email This
• Print
• Comments
• Trackbacks

I appreciate the people of Pennsylvania for being leaders in the dam removal movement. Dams and locks damage river systems. Dams and locks in the Mississippi River drainage basin damage the Louisiana coastal wetlands by trapping sediment that would otherwise travel to the river delta and help sustain the coastal wetlands.  

The Harrisburg Patriot-News posted an article on Pennlive.com on August 6, 2007 entitled: Old Dams: Removing these barriers allows waterways to regain free-flow. 

Over 1/3 of Pennsylvania is within the Mississippi River drainage basin. According to the Patriot-News, Pennsylvania has removed 70 dams in the past decade and is removing an additional 3 dams on one creek in the next year. Although the removal of a dam in Pennsylvania will not directly improve the health of the coastal wetlands in Louisiana because so many dams and locks remain in place between Pennsylvania and Louisiana, the dam removal movement should be encouraged.

Officials in Louisiana should monitor the water resource policies of other states. They should encourage good decisions and discourage bad ones. What is done in the Mississippi River drainage basin outside of Louisiana matters, but is often ignored in Louisiana.

Erich P Rapp.

• Email This
• Print
• Comments
• Trackbacks

Kudos to Michael Grunwald of Time Magazine. In an article posted on August 1, 2007,
titled: The Threatening Storm, he has written a strong worded and hard hitting article about the need to rebuild the coastal wetlands of Louisiana. He strongly criticizes the Corps of Engineers and the political process that enables them to make pork barrel decisions instead of well reasoned decisions.

I am particularly impressed with his comments on the need to examine the entire ecosystem of the Mississippi River drainage basin when deciding how to address the problem of coastal land loss in Louisiana. The dams built far upstream from New Orleans have played an important role in the destruction of the wetlands in Louisiana. The officials making decisions about  Louisiana coastal wetland protection and restoration need to look beyond the boundaries of the wetlands themselves when making decisions.

Erich P Rapp.

• Email This
• Print
• Comments
• Trackbacks

The New Orleans Times Picayune has created an interactive graphic to depict the scope of coastal land loss in Louisiana.

Select the interactive graphic entitled: The Rise and Disappearance of Southeast Louisiana. The presentation will explain in about seven minutes how the hydrologic cycle described in my last blog entry applies to the Mississippi River and Southeast Louisiana.

Most important when the active presentation ends, you will be left with a map of Louisiana and to the right side of the screen, you will have the ability to select a map of Southeast Louisiana as it existed in 1932, 2000, 2005 and a projection for 2020. Leaving aside what might come to be in the future, alternate views between the map as it was in 1932 and as it was in 2005. What you see will take your breath away.

The interactive graphic is an excellent presentation of the basic geology, but it leaves out an important part of the story. Dams are destroying the wetlands at the mouth of the Mississippi River and not levees. Near the mouth, there are no levees.

Erich P Rapp. 

• Email This
• Print
• Comments
• Trackbacks

The Mississippi River built the part of Louisiana now being lost to the sea. All water running across land carries sediment. All rivers and streams carry sediment. Rivers, streams and the sheet flow over the adjoining land are eroding sediment in one place and depositing it in another.  This natural process has existed as the earth has existed.

Transport of sediment in rivers is part of the hydrologic cycle. 

Water evaporates out of the ocean. The clouds moves over land, and the water returns to earth as rain. The rain runs across the land eroding sediment as it gathers in streams and rivers and makes its way back to the ocean. This description is a gross simplification, of course, because some of the water goes into storage as ground water, in lakes, plants and elsewhere along the way from falling as rain to its return to the ocean. 

As a result of the hydrologic cycle, water transporting sediment in the Mississippi River and depositing it at or near the coast built much of Louisiana over a very long period of time.

The law applies to this process. The transport of sediment in rivers is a natural process that creates a legal relationship between the land along the upstream portions of a river and the lands adjoining the same river system much closer to the ocean. If the process is disrupted, the land building and maintenance stops and as will be described later, the land slowly turns back to open sea.

This blog will show how the law protects property rights associated with the sediment transport process in rivers.

Erich P Rapp.  

• Email This
• Print
• Comments
• Trackbacks

The article published on August 6, 2007 on CNNMoney.com is worth reading. The article is titled: The next energy crisis. More than a quarter of America's oil flows through southern Louisiana. Too bad the land is slowly sinking into the sea, and was written by Fortune Magazine senior writer Nicholas Varchaver. This article is different because it was written about the views of business people in the energy industry on Louisiana coastal land loss. This article describes how important the Louisiana coastal wetlands are to the production of 27% of America's oil and 30% of its natural gas. It also describes the challenges that businesses in the energy industry are facing as Louisiana's coastal wetlands are lost to open sea.

Erich P Rapp.

• Email This
• Print
• Comments
• Trackbacks