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

Ducks Unlimited is a friend to the movement for the restoration of Louisiana's coastal wetlands. Bob Drew, the manager of conservation programs for Ducks Unlimited has properly stated that state and federal agencies are the only ones that have the capacity to implement large scale coastal restoration programs which Ducks Unlimited supports.

For this reason among others, Ducks Unlimited announced the appointment of Jennifer Grand as the Louisiana government affairs director for Ducks Unlimited. Grand is based out of their Lafayette office. For more information on the appointment of Ms Grand, see the April 10, 2008 article in the Lafayette Advertiser entitled: Wetlands warrior: Conservation organization creates post.

Erich P Rapp.

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As I have written many times before, the principal cause of coastal wetland loss is the reduction of sediment load in the Mississippi River. The reduction in sediment load has been caused primarily by the construction of locks and dams in the Mississippi River drainage basin, and the dams in the Missouri and Arkansas River systems are the most significant.

For the Corps of Engineers representatives working north of Louisiana, the reduction in the sediment load is a good thing. If your primary concern is navigation in the river system, a river with little sediment load is a good river. It means the Corps does not have to dredge the river bed as much.

In contrast for the Corps of Engineers in New Orleans tasked with coastal wetland restoration, a river with a limited sediment load makes their restoration job harder. Of course, the Corps in New Orleans is also given the task of maintaining navigation on the Southern course of the river. Thus, the Corps in New Orleans also prefers the smallest possible sediment load for management of their navigation responsibilities.

Which objective does the Corps serve? How do they decide which objective to serve and when? As far as I can determine, the Corps gives no consideration to the sediment load in the Mississippi River system needed for restoration and preservation of Louisiana's coastal wetlands when the Corps makes decisions about river management north of Louisiana. As a practical matter, the Corps cannot serve both objectives with no oversight and be expected to preserve and restore Louisiana's coast. The navigation interest extends for most of the river system course and the focus on preservation and restoration of coastal wetlands is an active part of decision making only in the Southernmost section of the river. Preservation and restoration of coastal wetlands loses and navigation wins in that internal competition at the Corps. As a practical matter, it cannot be any other way. 

The responsibilities for decision making need to be split and a neutral third party needs to be responsible for balancing the two interests.

A good recent news article expressing concern with the negative impact of sediment load on navigation can be found in the Baton Rouge Advocate on April 12, 2008. The article was written by John A Colvin and is entitled, Mississippi River sediment piling up.

Erich.

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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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