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

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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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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The nutria, a rodent found in the coastal wetlands of Louisiana, are known for eating marsh grass and contributing to the loss of coastal wetlands. In recent decades, the nutria have eaten their way through hundreds of square miles of coastal wetlands.

The state of Louisiana began trying to control the nutria population in 2002 by offering a $5 per tail bounty for killing the rodent. The nutria was introduced into the Louisiana wetlands from South America in the 1930's. The 20 nutria brought to Louisiana in the 1930's bred an estimated 20 million animals within two decades.

For many years, this resulted in a profitable fur trade. In the 1960's and 1970's, trappers collected more than 1 million nutria pelts per year. In 1976 alone, trappers collected more than 1.8 million nutria pelts in Louisiana.

In the 1980's and thereafter, fur's popularity declined and the value of a nutria pelt fell from around $10 to about $1. This led to trapper's leaving the business and an explosion in the nutria population. By 2001, the nutria were damaging 81,000 acres a year of wetlands in Louisiana. Since the state bounty was placed on the nutria, the damage has declined to about 34,665 acres in 2007.

For more information on the nutria in Louisiana's wetlands, see the news article in the New Orleans Times Picayune published on February 25, 2008 entitled, Nutria Nation: marsh-eating critter rebounds in post-Katrina.

Erich P Rapp.

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Researchers have developed a computer model for assessing large scale coastal restoration projects before they are built.  The computer model was recently presented at the annual conference of the American Association for the Advancement of Science in Boston.

Since restoration of coastal wetlands in Louisiana will require delivering more of the sediment from the Mississippi River to the coastal wetlands, researchers have focused on creating a model that would determine how much land can be built from sediment available in the Mississippi River.

The idea for the computer model began when Robert Twilley, the director of the Wetland Biochemistry Institute at LSU saw a presentation by Gary Parker with the University of Illinois in Urbana-Champaign. Parker's presentation concerned his abilities to model river deltas around the world. As a result of Twilley seeing this presentation, Twilley and Parker began discussing a computer model for the relationship of the Mississippi River with the surrounding coastal wetlands.

Twilley and Parker were then joined by Chris Paola of the University of Minnesota and David Mohrig of the University of Texas at Austin to form the team for the development of the computer model.

Using the growth of the delta at the mouth of the Atchafalaya River as a base, the team developed the computer model. The computer model suggests that by diverting 45% of the river's flow through two diversions, one could build between 270 and 345 square miles in about 30 years.

This computer model is discussed in an article published in the Baton Rouge Advocate on February 25, 2008 entitled Restoration effort aided by computer model.

That would be a good start to coastal wetland restoration in Louisiana. 

Erich P Rapp.

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The Baton Rouge Advocate published a letter on March 5, 2008 under the headline, Letter: Wetlands require urgent action. Kerry St. Pe, the program director for the Barataria-Terrebonne National Estuary Program, wrote in the Baton Rouge paper that all stakeholders must join together to move quickly to restore coastal Louisiana.

St. Pe concludes that the state cannot afford delays that might be caused by strategies that could result in drawn-out disagreement. He emphasizes the adoption of proven technology on a large scale. In particularly, he suggests using existing sediment delivery technology such as dredges, pumps and pipelines need to be employed immediately. The land built through the sediment delivery processes must then be supported with small to medium size river diversions. These diversion will sustain the new land.  

St. Pe expresses concern about the disagreements arising from large scale river diversions. He views large scale diversions as potentially contentious and questions whether such diversion have long term benefits.

In sum, St. Pe thinks Louisiana should focus on the strategies where consensus exists.

Erich P Rapp. 

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A recent article in the Geophysical Research Letters entitled, Post-glacial sediment load and subsidence in coastal Louisiana by Erik R. Ivins, Roy K Dokka, and Ronald G. Blom concluded that heavy sediment deposited in the Mississippi River delta at the end of the last ice age has caused coastal Louisiana in the Mississippi River delta to sink. This process is expected to continue for hundreds of years. The process will likely cause the area in question to subside over three feet in the next two hundred years.

The sinking of this land will likely be compounded by a general sea level rise from global warming. These factors will make the area more vulnerable to hurricanes and tropical storms. Of course, the hurricanes and tropical storms will then themselves do further damage to the coastal wetlands.

News Accounts related to this research paper can also be found at;

Associated Press: Sediment Make New Orleans Sink - February 1, 2008

Environmental News Service: Ancient Glacial Sediments Drag Down Louisiana's Sinking Coast - February 10, 2008 

Erich P Rapp

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Mark Schleifstein reported in the Monday January 28, 2008 Times Picayune that the Corps of Engineers may propose the buy out of certain low lying properties as part of their comprehensive plan to protect south Louisiana from a catastrophic hurricane.

The areas in question would include the southernmost parts of Slidell, Mandeville, and Lacombe on the north shore of Lake Pontchartrain; Delacroix and Reggio in St. Bernard Parish; Ruddock in St. John the Baptist Parish; Lafitte and Barataria in Jefferson Parish; and a number of communities on both sides of the Mississippi River in Plaquemines Parish.

In part, I applaud the Corps willingness to accept some financial responsibility for the loss of land on the Louisiana coast and the economic damage that this loss of land has caused to land owners in the region. Of course, the scope of the acceptance of responsibility is a function of the price that the Corps is willing to pay for that which they buy.

The move also presents some reasons for concern. The offer to purchase low lying land on the coast of Louisiana suggests a conceptual move by the Corps from a restoration and preservation of coastal land strategy to a retreat from the subsiding land strategy.

This trend needs to be monitored closely.

Erich.

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The U.S. Army Corps of Engineers will not meet their December 31, 2007 deadline for preparing a plan to protect the Louisiana coast from category 5 hurricanes. In a December 20, 2007 letter to Congress, Assistant Secretary of the Army for Civil Works, John Woodley, has stated that the Corps will not meet the 24 month congressional mandated deadline for completing its plan to protect the Louisiana coast from category 5 hurricanes.

The Corps cited the scope of the cultural, economic, environmental and residential aspects of 16,000 square miles of south Louisiana as the reason why the report is taking longer than anticipated to complete.

The report is now anticipated to be released in February 2008, but the report will likely contain no recommendations according to Louisiana state officials familiar with preparation of the report. The report will, however, likely contain reference to elements of the Louisiana master plan for restoration of the coast.

Instead, the report will likely contain an outline of  a "decision-making matrix" of how the corps will make decisions on recommendations for coastal restoration and protection.

More information on this delay can be found in Amy Wold's Baton Rouge Advocate report on December 28, 2007 entitled, Corps to miss deadline for plan to protect La.

Erich P Rapp.

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According to Ivor van Heerden Deputy Director of the LSU Hurricane Center, the barrier islands along Louisiana's coast could be restored to the conditions that existed 100 years ago within three years if the necessary effort were undertaken. This and several other shocking revelations about the government's failure to protect Louisiana's coast are found  in the WWL Channel 4 New Orleans news story broadcast on Wednesday November 14, 2007.

Erich P. Rapp.

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On Tuesday November 27, 2007, LSU began teaching a three day "Levee School" which is officially called The Flood Protection and Ecosystem Restoration Professional Development Program. The program is designed to teach levee board members and parish officials about the issues they face as they design, build and maintain flood protection systems. A more detailed article on the program can be found in the Baton Rouge Advocate article of November 28, 2007 by Amy Wold which is entitled, LSU Levee School Opens. The LSU Levee School has also prepared its own web based brochure.

Erich P Rapp

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On Thursday November 29, 2007, the Bush Administration approved Louisiana's plan to use $255 million in funds from the Mineral Management Service to pay for more than 100 conservation and diversion projects aimed at restoration and conservation of Louisiana's coast. The approval of the use of these funds is detailed in a news article in the Friday November 30, 2007 New Orleans Times Picayune entitled, Louisiana's Coastal Restoration Plan Wins Approval by Bruce Alpert.

Erich P. Rapp

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Dr. J. David Rogers, Professor of Geological Engineering at the University of Missouri-Rolla will make a presentation on coastal land loss in Louisiana at the annual meeting of the Geological Society of America which is being held in Denver, Colorado from October 28 to 31, 2007. The presentation will be held on October 31st at 10:30 AM in Room 505 of the Colorado Convention Center. The presentation is entitled, Geological Factors Promoting Subsidence and Coastal Land Loss in the Mississippi River Delta and the Great Debate about what to do about it.

Erich P Rapp.

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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.

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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. 

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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.

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