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

Mark Schleifstein of the New Orleans Times-Picayune writing on June 19, 2008 in an article entitled, Levee authority backs national '8/29 Commission' investigation reported that the Southeast Louisiana Flood Protection Authority had passed a resolution asking Congress to create a 8/29 Commission to investigate the government's handling of the aftermath of Hurricane Katrina. The resolution was proposed by John Barry, the author of Rising Tide.

Barry stated,

"I'm really asking that they take a comprehensive look at the entire Mississippi River system, the entire Mississippi valley, from New York state to Idaho," Barry said. "They should look, for instance, at the dams on the upper Missouri River in detail, because they have a real impact on the amount of sediment that's carried in the river, which has a real impact on the erosion of wetlands in Louisiana."

"If the nation understood the reality of the negative impacts on us in the metropolitan area of economic decisions upstream that were made in the national interest," it might lead to better decisions in flood control involving both protection from hurricanes and high rivers."

John Barry has said it exactly right. I am not aware of anyone speaking more closely to my own thinking on the causes and solutions related to the loss of Louisiana's coastal wetlands than John Barry. The idea of a 8/29 Commission is an excellent one. The scope he suggests addresses exactly the issues that I have been raising in this blog. The loss of coastal wetlands in Louisiana is a national problem caused by the management of the Mississippi River drainage basin by the federal government. 

I am not suggesting the federal government should not manage the Mississippi River drainage basin. I am just urging the federal government to acknowledge and take responsibility for their predominant role in causing coastal land loss in Louisiana.

Erich P Rapp. 

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The National Academy of Sciences has appointed a committee of  the country's top scientists to peer review the coastal protection and restoration plans of the Army Corps of Engineers in Louisiana. The National Academy of Sciences is the scientific adviser to the federal government.

At a meeting on Thursday April 3, 2008, the National Academy peer review committee and the Corps held a public meeting concerning the peer review committee's work. The peer committee was critical of the Corps' plans in a number of respects.

The question being considered at the meeting was whether the Corps plans to protect and restore the Louisiana coast will work. The National Academy scientists began by questioning the Corps basic strategy which is to maintain the coast as it currently exists. The National Academy scientists questioned why the Corps was not considering other alternatives such as creating new land and allowing some areas to erode.

The National Academy scientists also questioned whether the Mississippi River carried enough sediment today to maintain the coast as the Corps suggests that its plan would do.The scientists seemed surprised and upset that the Corps' representatives did not have a basic knowledge of how much sediment the river carried and had not taken steps to determine if the available sediment was sufficient to achieve the Corps' objectives. 

One of the National Academy scientists questioning the Corps was Robert Meade. Meade is retired from the United States Geological Survey. Meade is well known in the scientific community for his knowledge of sediment transport in rivers and particularly in the Mississippi River. The representatives of the Corps might serve themselves well to read some of the scientific articles that Meade has previously published on sediment transport in rivers.  

The question of sediment supply in the Mississippi River is critical to the success of any coastal protection and restoration project in Louisiana. The sediment load in the Mississippi River has declined sharply since the 1930's as a result of the extensive construction of dams and locks in the Mississippi River drainage system. Dams trap sediment in the reservoir behind the dam and the locks trap sediment in the slack water pool behind the lock. The most significant sediment transportation reductions have occurred in the Missouri River and Arkansas River which are tributaries of the Mississippi River.

For navigation purposes, sediment in the Mississippi River is a nuisance that requires dredging. Much of the Corps operations in the Mississippi River drainage system are centered upon navigation. This means that for most purposes north of Louisiana on the Mississippi River and its tributaries, the Corps would like to see as little sediment transport in the river as possible. This desire, however, runs counter to the needs of coastal Louisiana. These navigational needs have in the past and continue today to trump the coastal restoration and protection needs of Louisiana. When the Corps considers how it will build and operate projects north of Louisiana in the Mississippi River drainage basin, the sediment transportation needs of Louisiana's coast are not typically considered.

Congress had asked the Corps to deliver the Louisiana Coastal Protection and Restoration Plan in December 2007. Now the plan will not be delivered until December 2008. Further, Congress had asked the Corps to identify a set of coastal protection and restoration projects that could be started quickly. Instead, the Corps has now stated that its December 2008 plan will not "include the specific identification of a detailed plan." Instead, the Corps' report will include aspects that require additional study before Congress can fund and the Corps can begin construction of the projects ultimately included in the plan.  

The National Academy scientists led by Robert Dalrymple, a civil engineering professor at John Hopkins University also questioned this "further study" approach.  Dalyrmple suggested that Congress might have been trying to create a sense of urgency after Hurricanes Katrina and Rita for more immediate action.   

The National Academy scientists also questioned why the Corps report did not include a major diversion of the Mississippi River south of New Orleans as many scientists and environmental groups have recommended. Instead the Corps report will suggest a number of smaller diversions. 

For a more detailed description of this meeting, see Mark Schleifstein's article in the New Orleans Times Picayune of Saturday April 5, 2008 entitled: Reviewers Grill Corps on Coast Plans. 

Erich P. Rapp.

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The New Orleans Times Picayune is reporting on its web site as of 9:40 PM on Wednesday March 26, 2008 that Patrick "Shea" Penland has died at age 54. The obituary is entitled, Shea Penland, important Louisiana coastal scientist, dies. 

According to the T-P article,

"Penland was the director of the Pontchartrain Institute for Environmental Sciences at the University of New Orleans. He earned an undergraduate degree in physical geography from Jacksonville University in Florida. He earned master's and doctoral degrees in coastal geomorphology from LSU. Since 1979, Penland has published more than 100 papers for scientific journals, conducted more than 30 field trips and led more than 30 sessions at scientific meetings on the evolution of coastlines."

Although I did not always agree with Penland, he was an important voice in support of the restoration of coastal Louisiana who will be missed. I offer my prayers and condolences to his family at this difficult time.

Erich P Rapp.

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On February 29, 2008, the Baton Rouge Advocate newspaper published a letter from Maura Wood, a senior program manager with the National Wildlife Federation, under the headline, Letter: Preventing disasters key issue. Woods indicates that the National Audubon Society and the Environmental Defense Fund also support the efforts of the National Wildlife Federation in this cause.

In this regard, Woods urges representatives of Louisiana in Washington, D.C. to be leaders in restoring coastal wetlands as a barrier protecting the people living in South Louisiana from hurricanes.  Ms. Woods calls for a sense of urgency in the use of the land building power of the Mississippi River to restore coastal wetlands in Louisiana.

It is good to see these national environmental organizations taking a special interest in this important issue.

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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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.

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On February 17, 2008, Torbjorn E. Tornqvist of Tulane University and other researchers published a letter in the journal Nature Geoscience entitled Mississippi Delta subsidence primarily caused by compaction of Holocene strata. The research findings suggest that the Mississippi delta is sinking as much as one fifth of an inch per year, but that the sinking is mostly limited to the upper layers of sediment while the land beneath is more stable.

This research suggests that the high rate of subsidence is largely the result of compaction of the shallow sediment deposits from the last 10,000 years in the upper few hundred feet near the surface of the earth. These findings suggest that flood control structures that penetrate through the shallow sediment deposits and rest on the more stable foundation below would not subsidence as quickly.

News articles reporting on this research include: Science Daily in an article entitled Post-Katrina Rebuilding? Mississippi Delta Both Spongy and Stable published on February 22, 2008; and New York Times in an article in a section entitled Observatory with the article title Support for a Theory As to Why Land Sinks Along the Gulf Coast by Henry Fountain published on February 19, 2008.

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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Although efforts to stem coastal wetland loss in Louisiana are already grossly underfunded, the Corps of Engineers is seeking reimbursement for a part of the cost of dredging the Mississippi River to maintain the navigation channel from the budget for coastal restoration projects authorized and funded pursuant to the Breaux Act. See the editorial in the New Orleans Time Picayune on Monday February 18, 2008 and the related article in the New Orleans Times Picayune on Thursday February 14, 2008.

The Mississippi River Commission, which is related to and controlled by the Corps of Engineers, is taking the position that the State of Louisiana and the Corps of Engineers must pay for any increase in dredging costs that result from any coastal restoration project in Louisiana that diverts water and sediment from the Mississippi River.

Officials for the State of Louisiana believe that the transfer of this cost to the Breaux Act coastal restoration projects will effectively shut down the restoration projects.

Interestingly, Garret Graves, the Chairman of the Louisiana Coastal Protection and Restoration Authority and member of the Breaux Act task force suggested that perhaps the Corps should be responsible for the damage to the Louisiana coastal wetlands that resulted from the Corps management of the Mississippi River.

Melanie Goodman, the Corps' Breaux Act program manager replied that actions related to navigation "a century ago" which are damaging the coastal wetlands in Louisiana are in the past and not subject to reimbursement.

Of course, this entire blog is dedicated to the idea that the Corps is making decisions and undertaking actions everyday that adversely impact the Louisiana coastal wetlands and that the continuing series of interconnected decisions dating back many years is, in fact the responsibility of the Corps of Engineers and the federal government.

The Corps' two part defense is that it did not know they were damaging the coastal wetlands of Louisiana many years ago when they built dams and levees on the Mississippi River and its tributaries. This is, of course, not true. The Corps has known since the 19th century that the coast of Louisiana was subsiding and that the sediment from the Mississippi River offset the subsidence.

The additional implication from the Corps' claim about the past is that the Corps is not taking new actions today that adversely impact on the coast of Louisiana. This is also not true. The Corps makes management decisions about the Mississippi River and its tributaries such as the Missouri River and the Ohio River, everyday that deny or reduce sediment transport to the coast of Louisiana. In many ways, an analytical disconnect exists between management of the more northern portions of the Mississippi River drainage basin and the coast of Louisiana. The analysis of Corps projects in the Missouri River or the upper Mississippi River or the Ohio River almost never consider the impact of these projects on sediment transport to the coast of Louisiana, and those decisions and actions continue day after day and year after year up to the present and likely far into the future. The Corps' suggestion that the damage they have caused to Louisiana's coast is the result of actions far in the past is simply not true. It is also the result of events planned and executed in the present.

Erich P. Rapp.

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On January 10-11, 2008, a two day conference on the Atchafalaya River was held in Baton Rouge. Over 150 faculty members from Louisiana universities, representatives of various state and federal agencies and interested individuals attended the conference. The purpose of the meeting was to review what people know about the river and its surrounding environment, to report on recent and ongoing research related to the river, and to identify information gaps that have a negative impact on decision making by land and water managers and government policy makers. The program included 30 presentations on research being conducted in relation to the Atchafalaya River and the surrounding basin

The Atchafalaya River is a 140 mile long distributary channel of the MIssissippi River. The delta at the Gulf end of the river is the only actively building delta in the Gulf of Mexico. The Atchafalaya transports 100% of the Red River sediment and 25% of the Mississippi River sediment. Because the gates at the Old River Control structure which joins the Mississippi River and the Atchafalaya River do not trap sediment in the way that other locks and dams do, the Atchafalaya River delta is allowed to continue a building process from the deposit of sediment.  Over time not only is the river delta building but the Atchafalaya basin itself is also naturally filling in and evolving from open water to cypress swamp to bottomland forest.

The delta building process that continues for now in the Atchafalaya is the same process that has ceased to function in the Mississippi River delta. This failure of this process has been the principal cause of the loss of coastal wetlands in Louisiana which, of course, is the subject of this blog. The study of the ongoing delta building process in the Atchafalaya river and basin is thus worthwhile to better understanding events in the Mississippi River delta.   

Erich.

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On January 23, 2008, Governor Bobby Jindal signed an executive order requiring all state agencies to comply with the Comprehensive Master Plan for a Sustainable Coast. This plan describes the coastal and hurricane protection priorities recognized by the Coastal Protection and Restoration Authority of Louisiana which Authority includes the Louisiana Department of Transportation and Development, Louisiana Department of Natural Resources and the Governor's Office of Coastal Activities. The executive order requires all state agencies to adhere to the projects and priorities listed in the state's master plan for coastal protection and restoration. 

Erich P Rapp.

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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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Louisiana is seeking to form an alliance of the four states along the Gulf of Mexico producing oil and gas. The alliance would be called America's Energy Coast Alliance and the aim of the alliance would be to create a single voice on the national level speaking in favor of coastal restoration. Louisiana officials hope to have a written accord in place by June 1, 2008. King Milling, the chairman of the America's Wetland Foundation is leading the effort. Information about the proposed accord can be found at the America's Wetland website. A news account of the Friday November 30, 2007 meeting of the representative states can also be found in the Saturday December 1, 2007 Baton Rouge Advocate in an article by Jeremy Harper entitled, Louisiana Seeks Alliance with Gulf States.

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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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.

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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 

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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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Almost all of the coastal area of Louisiana is no more than a few feet above sea level. This condition leaves many people in South Louisiana concerned about global sea level rise as well as the subsidence experienced in the Mississippi River delta region. If anyone ever doubted that the federal government and the Corps of Engineers were also quietly worried above the problem, the article on October 2, 2007 in the Los Angeles Times entitled Coastal buyout talk roils lives in Mississippi should remove all doubt.

The Corps of Engineers appears to have begun undertaking a voluntary project which looks a lot like a "pilot" project to assess the feasibility of a larger scale retreat from low lying coastal regions. Susan I. Rees of the Corps is directing a project aimed at buying out 17,000 coastal homes in Mississippi near Bay St. Louis with a proposed budget of $10 billion.  

Although the Corps states that it is not considering expansion of this buyout program, the implication for the bulk of Louisiana south of Interstate 10 is painfully clear.

Has the federal government and the Corps of Engineers quietly come to the conclusion that low lying coastal areas cannot be saved from inundation resulting from global sea level rise?  What does this mean for the coastal wetlands of Louisiana?

Erich P Rapp.

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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.

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The Lake Pontchartrain Basin Foundation and the Coalition to Restore Coastal Louisiana have recently released a draft report entitled, Comprehensive Recommendations Supporting the Use of the Multiple Defense Strategy to Sustain Coastal Louisiana. Part II of the report is at this link. The LPBF and the Coalition are now seeking comments on the Draft Report. The deadline for providing comments is September 30, 2007.

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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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