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

The National Academies Press has published its First Report from the NRC Committee on the Review of the Louisiana Coastal Protection and Restoration Program. The NRC is the National Research Council which group acts as the official scientific adviser to the federal government. 

The report is available for free download as a .pdf file from the National Academies web site. This is an important report worth reading. This report is a response to the Corps' March 2008 report entitled, "Louisiana Coastal Protection and Restoration Technical Report." In turn, the Corps' report was a response to a request from Congress for a category 5 hurricane protection plan for South Louisiana.

The Corps' report commendably speaks to the need to preserve and restore Louisiana's coastal wetlands in order to provide hurricane protection for the region. Nevertheless, one of the NRC committee's leading complaints about the Corps' plan is that it relies upon "sustaining the existing landscape" and yet the Corps has provided no evidence that it is possible to sustain the existing landscape. In this regard, the NRC committee complains that the Corps has not done the basic analysis of sediment available in the Mississippi River for a determination of what portion of the coastal wetlands in Louisiana can be sustained. If insufficient sediment exists in the Mississippi River water flow to sustain the existing coastal environment then the Corps' entire report is ill conceived.

If the sediment budget in the river is insufficient to sustain the existing coastal environment, the Corps and others will have to make some difficult decisions about what parts of the coastal landscape can be saved and what will not be saved. The Corps has not addressed this issue.

This missing analysis takes us to the core of the problem that I have written about in this blog since its outset. The most fundamental cause of coastal wetland loss in Louisiana, particularly south of New Orleans where below a certain point there are no levees, is lack of sediment in the Mississippi River water flow as the result of dams and reservoirs as well as locks and slack water pools in the northern parts of the Mississippi River drainage basin. These river structures reduce the sediment load in the river.

A reduced sediment load in the river is good for navigation and bad for coastal wetland building. The Corps must deal with a conflict between those competing interests. The Corps operating north of Louisiana wants a river with a reduced sediment load because that river condition makes it easier to maintain a navigation channel of a set depth. Less sediment in the river flow means less dredging of the navigation channel for the Corps.

The Corps in Louisiana has the same concern with navigation, but also has a need for sediment load for use in coastal wetland restoration and preservation. Those interests compete with one another to some extent. Unfortunately, coastal wetland protection and restoration in Louisiana does not get much, if any, consideration when the Corps makes a decision north of Louisiana adversely impacting on sediment load in the Mississippi River that will ultimately reach Louisiana. The interests of navigation prevail in such considerations north of Louisiana and most of those considerations within Louisiana.

The Corps needs to make a careful examination of the Mississippi River sediment load as it relates to proposed coastal wetland restoration and preservation projects. The Corps also needs to begin considering sediment load as it relates to Louisiana's coastal restoration and protection needs when it makes decisions along the entire course of the Mississippi River drainage system. Until this analysis is done and this consideration is given, no one will know what can really be done to preserve and restore Louisiana's coastal wetlands.

The current approach is to view coastal wetland preservation and restoration in Louisiana as a matter of regional decision making in relation to management of the Mississippi River in Louisiana. In reality, In reality, the preservation and restoration of Louisiana's coastal wetlands requires considered decision making across the entire Mississippi River drainage basin covering much of the continental United States.

Erich P Rapp.

• Print
• Comments
• Trackbacks

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.

• Print
• Comments
• Trackbacks

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

• Print
• Comments
• Trackbacks

The Bismarck Tribune published an editorial on March 7, 2008 entitled, Missouri River Study Could Be Spendy. The editorial concerns the current effort of certain interests along the Missouri River to have a new study done of the river and its tributaries.

The states along the Missouri River north of Sioux City, Iowa would like to see the Corps of Engineers conduct a new "Section 216 Study" of the Missouri River and its tributaries. In sum, these states would like to see the Corps rethink how it balances the navigational interests in the Missouri River which apply to those along the river south of Sioux City, Iowa against other interests in the river such as recreation, flood control, drinking water uses, irrigation, environmental protection, etc...

Most people in Louisiana probably do not think much about the Missouri River, but historically most of the sediment that built the coastal wetlands of Louisiana came down the Missouri River which enters the Mississippi River just north of St. Louis. After the Corps completed a series of dams in the upper Missouri River, very little sediment continued to flow down the Missouri into the Mississippi River. The old adage about the lower Mississippi River was that the water came from the Ohio River and the mud came from the Missouri River. Hence, the Missouri River's nicknames was the "Big Muddy" and "Dark River,"  and the residents along it used to say the water of the Missouri River was "too thick to drink, too thin to plow."

The people of the upper Missouri River recognize that the volume of barge traffic on the Missouri River has fallen to the point that it is not a significant economic issue any more. Thus, these people north of the navigable section of the Missouri River would like to remove or at least de-emphasize navigation as a factor in deciding how to manage the Missouri River.

This move should be of interest to Louisiana. If the river can be managed in a way that increases sediment load in the river, this could aid Louisiana's efforts to restore the coastal wetlands. The reservoirs behind the large dams on the Missouri River trap sediment, but management techniques and construction techniques exist for flushing sediment through such reservoirs.

The impact that the operation of the Missouri River has on Louisiana should be considered in any new study of the Missouri River. This impact has not been considered in the past and that needs to change.

Erich P Rapp.

• Print
• Comments
• Trackbacks

The Corps of Engineers will soon begin work on the Lower Mississippi River Resource Assessment which was authorized in the Water Resource Development Act of 2000. The study will take two years and cost about $500,000. The study area includes the portion of the Mississippi River from Cairo, Illinois which is the confluence of the Ohio River with the Mississippi River to the mouth of the Mississippi River at the Gulf of Mexico. The study area includes 954 miles of the river and also includes 2.7 million acres of the river's natural floodplain (now protected from flooding by levees).

The study will consider aspects of the Mississippi River beyond navigation and flood control. The study will assess ways to enhance recreation, restore flood plain and restore aquatic habitat. The study will also consider some tributaries of the Mississippi River.

What Louisiana really needs is an assessment of the impact of management of the Mississippi River north of Louisiana on coastal wetlands in Louisiana. The scope of this study seems broad enough for such considerations, but will they be included?

The news coverage of this river assessment includes an article in the February 4, 2008 Memphis Commercial Appeal entitled River Resource Assessment will last two years and coast up to $500,000.

Erich.

• Print
• Comments
• Trackbacks

The situation in the Mississippi River where more sediment than ever is going into the river and less sediment than ever is reaching the coastal wetlands in Louisiana as described in the recent National Research Council report on the Mississippi River is not unique to the Mississippi River.

The problem is an international problem. On May 21, 2005, Science News Online published a report concerning river sediment entitled, Muddy Waters: More sediment is entering rivers, but less makes it to the sea. In turn, this Science news article was directly related to the publication of the scientific research paper entitled, Impact of Humans on the Flux of Terrestrial Sediment to the Global Coastal Ocean. This research article was published in the April 15, 2005 issue of Science Magazine in Volume 308 at page 376.

The conclusion of the Science news article and the research paper cited above are that humans have simultaneously increased the sediment transport by global rivers through soil erosion by approximately 2.3 billion metric tons per year, yet reduced the flux of sediment reaching the world's coasts by approximately 1.4 billion metric tons per year because of retention within reservoirs. Further over 100 billion metric tons of sediment and 1 to 3 billion metric tons of carbon are now sequestered in reservoirs constructed in the last 50 years.  Further still, coastal retreat is directly influenced by the reduction of river-supplied sediment.

The accumulation of sediment behind dams in accompanying reservoirs (particularly in the Missouri and Arkansas Rivers) as well as the accumulation of sediment behind locks in accompanying slack water navigation pools in other parts of the Mississippi River drainage system are contributing directly to the loss of coastal wetlands in Louisiana to the open sea.

Erich P Rapp.

• Print
• Comments
• Trackbacks

I have repeatedly written about the role of dams, locks and reservoirs in the Mississippi River system and their role in the loss of coastal wetlands in Louisiana. Now, I will provide some research in support of this position.

Dr. Richard H. Kessel, a professor of Geography and Anthropology at Louisiana State University, is the person that has written the most extensively on the decline of the sediment load in the Mississippi River and its role in the loss of coastal wetlands in Louisiana. His papers have included:

1. An Approximation of the Sediment Budget of the Lower Mississippi River Prior to Major Human Modification which was published in volume 17, pages 711-722 (1992) of Earth Surface Processes and Landforms.

2. The Role of the Mississippi River in Wetland Loss in Southeastern Louisiana, U.S.A. which was published in Volume 13, Number 3, pages 183-193 of Environmental Geology and Water Science.

3. The Decline in the Suspended Load of the Lower Mississippi River and its Influence on Adjacent Wetlands which was published in Volume 11, Number 3, pages 271-281 of Environmental Geology and Water Science.

4. Chapter 12 Historical Sediment Discharge Trends for the Lower Mississippi River in Volume II: Technical Narrative of the Outer Continental Shelf Study by the Mineral Management Service, study number 87-0120 which larger document is entitled Causes of Wetland Loss in the Coastal Central Gulf of Mexico.  

The gist of Dr. Kessel's research shows that the suspended sediment load in the Mississippi River as it passes through Louisiana has declined by about 80% since the 1850's. He divides the history of this decline into three periods. These periods are 1) Prior to 1900, 2) a pre-dam period until extensive dam construction began between 1930 and 1952, and 3) the post dam period since 1952. The suspended load decreased 41% before dam construction began and another 51 percent after the dams in the Missouri and Arkansas Rivers were constructed. This change has altered the balance between sediment deposit in the wetlands adjacent to the Mississippi River and the ongoing process of subsidence and global sea level rise. In the most recent period, the rate of sea level rise and subsidence exceeds the rate of sediment deposit. Thus, the coastal wetlands are being lost to open water.

Erich P. Rapp 

• Print
• Comments
• Trackbacks

On October 16, 2007, the National Research Council issued a press release concerning the publication of their upcoming report entitled, Mississippi River Water Quality and the Clean Water Act: Progress, Challenges and Opportunities. A pre-publication copy of the report is also available online as a .pdf file. 

Again, the National Research Council has emphasized an important theme related to coastal wetland loss in Louisiana. The report strongly suggests that the Mississippi River system including the major tributaries need to be analyzed and administered as a whole and not in parts. Decisions are often made in relation to segments of the system without regard to the impact of those decisions on other parts of the river. The report specifically mentions the lack of sufficient sediment in the Mississippi River reaching the wetlands along the river in Louisiana as an example of this management issue. Inevitably decisions made far to the north of Louisiana along the Mississippi River determine the sediment transport of the river as it reaches the wetlands in Louisiana.

The people in Louisiana and the rest of the Mississippi River basin need to remember this truth when they take action in relation to the Mississippi River.

Erich P. Rapp 

• Print
• Comments
• Trackbacks

The Upper Mississippi River contains twenty-nine (29) locks and dams creating slackwater navigational pools to allow barge navigation on the upper part of the river from north of St. Louis to Minneapolis.  Congress authorized the construction of this system of locks and dams in 1930 and the Corps of Engineers completed construction by 1940.

This navigation system is very important to the economy of Louisiana and its neighbors to the north. The original locks and dams are now out of date and need to be replaced. The new and larger system of locks and dams that are proposed are also very important to the economic interests of Louisiana and the states upstream on the Mississippi River from Louisiana. The people of Louisiana should, and I am sure do support the replacement of these locks and dams.

This construction project also brings other opportunities. The original locks and dams caused damage to the Louisiana coastal wetlands by disrupting sediment transportation in the Mississippi River. Now that the locks and dams need to be replaced, a new opportunity exists to consider the impact that the locks and dams have on coastal Louisiana. The new locks and dams could be designed, constructed and operated to improve sediment transport in the Mississippi River toward the coastal wetlands of Louisiana. Although dams are potentially damaging to coastal regions, dams and locks can be designed, built and managed to minimize their impact on the coastal region. One book that describes how this can be done is called Reservoir Sedimentation Handbook: Design and Management of Dams, Reservoirs, and Watersheds for Sustainable Use by Gregory L. Morris and Jiahua Fan. 

The National Research Council of the National Academies prepared a Review of the U.S. Army Corps of Engineers Restructured Upper Mississippi-Illinois River Waterway Feasibility Study in 2004. On page 27 of this review, the National Research Council made its case for better ecology in the Mississippi River through "Integrated Systems Planning." Issues related to the Louisiana coastal environment were discussed. The report stated:

"A broad holistic prospective is also necessary because of the significant implication of Mississippi River water quality and sediment transport for downstream regions in and along the Gulf of Mexico. The Corps should thus, to the maximum extent feasible, consider factors such as water quality, flood damage reduction, and sediment transport in order to reflect a more holistic approach to dealing with the diverse management issues in the UMR-IWW."

One of the keys to the long term survival and restoration of the coastal wetlands in Louisiana is Mississippi River sediment transport. This issue is often ignored when water resource planning is done upstream from Louisiana. Such is the case here.

The Corps contends that they are not authorized by Congress to consider the impact of the existing Upper Mississippi-Illinois River Waterway locks on the coastal wetlands of Louisiana when planning the construction of new larger locks. As a result, the Corps has not considered the impact of this construction project on coastal Louisiana. Not only do a number of federal statutes allow consideration of the Louisiana coastal wetlands in this situation, but the consideration is arguably mandated.

The federal government as well as the government and people of Louisiana should consider the impact on coastal Louisiana of projects undertaken in the Mississippi River drainage basin upstream from Louisiana. The health of the Louisiana coastal wetlands requires it.

Erich P. Rapp

• Print
• Comments
• Trackbacks

As discussed in earlier entries, the coastal wetlands of Louisiana have been built and in the past maintained by sediment transported in the Mississippi River and deposited in the coastal wetlands. This natural process creates a relationship between the riparian lands in the upstream course of the river and the delta of the river. The existence of the wetlands depends on this relationship and the law protects it.

Louisiana law provides for predial servitudes. These servitudes concern the legal relationship between different "estates" or tracts of land or real property with different owners. In a predial servitude, a "dominant" estate has a right in relation to a "servient" estate. For example, one who builds a wall near a property boundary has an obligation as a servient estate to keep the wall in good repair so as to prevent damage to the neighboring "dominant" estate. This is a legal  servitude found in a Louisiana civil code article. Louisiana law recognizes legal servitudes, i.e., predial servitudes imposed by statute and conventional servitudes, i.e., predial servitudes created by contractual agreement between the owners of the separate estates. 

Louisiana law also recognizes a natural servitude. A natural servitude arises from the natural relationship between different estates. The statutes creating natural servitudes are found at Louisiana Civil Code arts. 654 to 658. These articles give the courts the power to examine the facts about how two estates or tracts of land relate to each other, and these articles allow the courts to find the existence of a servitude even though no contract or statute provides a specific description of the servitude.

These civil code articles create a natural servitude between the riparian landowners upstream on the Mississippi River and the coastal wetlands of Louisiana. In this natural servitude, the coastal wetlands are a dominant estate and the riparian lands upstream in the Mississippi River drainage basin (including the river's tributaries) from the coastal wetlands are servient estates.

The historic basis for the natural servitude is found in the Napoleonic Code and was ultimately derived from Roman law. Interestingly, this natural servitude bears a striking resemblance to riparian water rights recognized in the majority of the other states. The law of riparian water rights provides that riparian landowners can use the waters of a river, but cannot change any characteristic of the flow of the river to such an extent as to be detrimental to the interests of the riparian owners downstream. 

Also of note, the concept of a riparian water right entered the common law of the United States in a decision written by Justice Story in 1827 in the case of Tyler v. Wilkinson and subsequently referenced by Chancellor Kent in his commentaries on American law in 1828. Justice Story is said to have based his decision on Roman law.  The decision of Story as cited by Kent was widely relied upon by courts in the United States and England in giving form to riparian water rights.

The protection of all characteristics of the flow of a river including the quality of its sediment transport and the relationship of the sediment transport to the riparian land has a long basis in legal history of the common and civil law. In fact, this legal tradition dates back to the very beginning of law as recognized in western civilization, i..e, Roman law.

The existence of a natural servitude raises issues of choice of law between states, interstate legal conflict, federal immunity and countless other related issues. Nevertheless, a long legal history rooted in the very beginning of law, as we know it, which is now common to most of the states and the federal government of the United States has formed a basis for protecting the sediment transport in the Mississippi River that creates and maintains the coastal wetlands of Louisiana.

Of course, this entry barely touches the surface of the many legal issues that impact on a property damage claim based upon such a natural servitude. More later.

Erich Rapp.

• 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.

• 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. 

• Print
• Comments
• Trackbacks