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

United States District Judge Stanwood Duval, Jr. of the United States District Court for the Eastern District of Louisiana has found the federal government through the Army Corps of Engineers liable for their negligent maintenance of the Mississippi River Gulf Outlet (MRGO) allowing flooding damage during Hurricane Katrina in the Lower Ninth Ward and St. Bernard Parish. 

The immediate damage award for the six trial plaintiffs is less than $750,000 and the judge ruled against plaintiffs in East New Orleans making similar claims. Nevertheless, the judge's decision is very important. If Judge Duval's decision is upheld on appeal, many more residents and former residents of the Lower Ninth Ward and St Bernard Parish will likely receive millions of dollars in damage awards in the period ahead.

The decision is very critical of the role that the federal government played in causing coastal wetland loss along the path of MRGO which the court in turn found caused extensive flooding in New Orleans. 

The legal concepts that have been confirmed over the last several years are favorable to other types of claims for land loss in coastal Louisiana. This decision opens the door to other types of claims against the federal government related to the loss of coastal wetlands in Louisiana as the result of hurricanes and the mismanagement of the Mississippi River, its tributuaries and distribution channels near the Gulf of Mexico.

For more information on this court decision, see the November 18, 2009 article in the New York Times entitled, Ruling on Katrina Flooding Favors Landowners.

Erich P Rapp.

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 The fifth episode of Category Five/Wetlands Watch will be on WLAE-TV at 8 PM on Friday October 2nd. Category Five/Wetlands Watch is a PBS series concerning coastal restoration efforts in Louisiana. The show is an examination of the problems and challenges associated with Louisiana coastal land loss and efforts to protect and restore the coast.

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I attended the America's Energy Coast hearing today at the Intercontinental Hotel in New Orleans.  I want first to thank the various members of the oil and gas industry for appearing and explaining what is happening with regard to their businesses in coastal Louisiana and along the northern Gulf of Mexico generally. The information that they have provided is invaluable to the larger issues that I will discuss below.

Nevertheless, I left the hearing with feelings of hope and disappointment. I am heartened that America's Wetland Foundation has decided to ask various stakeholders in coastal Louisiana what obstacles they face in managing their interests in the Gulf of Mexico coastal zone. That is an important, but isolated step in achieving a sustainable coast.

I am, however, concerned that some of the observations by all concerned were long on politeness and short on reality. That is a natural result of everyone being in the same room at the same time. Now, I feel very strongly that diplomacy is important. Ugly talk gets no one anywhere in a cooperative venture like this. For the future, however, I think the format for making cooperative public policy progress on a sustainable northern coast of the Gulf of Mexico needs to be revised.

Once America's Wetland Foundation has a broad inventory of  the concerns and interests from various powerful stakeholders in the Gulf coast region, everyone needs to take a further step. The stakeholders should explore what each stakeholder is willing to contribute and "give up" to achieve what they need and want the most with, of course, the ultimate objective being the restoration of coastal wetlands along the northern Gulf of Mexico.

In the end, this objective is not achieved through a conference or "hearing." It is achieved by shuttle diplomacy between the stakeholders as they explore ways to achieve their needs and wants while contributing technical talent, political support and money to a master plan aimed at accomplishing the larger objective of the restoration and protection of coastal Louisiana and the northern coast of the Gulf of Mexico.

I believe in the final analysis, through a process of shuttle diplomacy, the major stakeholders including the State of Louisiana, the federal government, the representative companies of the oil and gas industry, the Louisiana coastal wetlands restoration organizations, and the larger environmental protection organizations could agree upon a plan for comprehensive coastal restoration and protection in Louisiana and along the northern coast of the Gulf of Mexico.

In my dreams, the oil and gas industry, the state of Louisiana and the environmental movement (such as the Environmental Defense Fund and the Audubon Society) would all jointly support a single comprehensive public policy program led by the federal government for the restoration and protection of coastal Louisiana and the northern coast of the Gulf of Mexico generally. This could be achieved through Shuttle Diplomacy. We just need the right set of diplomats.

 Erich P. Rapp.

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It is pretty hard for someone to surprise me with an archival document find on the Mississippi River Delta these days, but it has happened today.  Len Bahr published an article in his La Coast Post Blog on July 31, 2009 entitled, The Mississippi River delta – what the corps knew and when they knew it! I thought that I had seen the best stuff in my research. I, however, had not ever seen the December 1897 National Geographic article entitled, The Delta of the Mississippi River. Bahr claims to have received the article from a retired general that at one time was the commander of the Mississippi River Valley Division of the Corps of Engineers.

Read the first paragraph on page 354 of the National Geographic article linked above.

The level of knowledge that this author and the Corps had in 1897 about the coast of Louisiana and the impact on the coastal wetlands of depriving sediment from the river is stunning even by my jaded and cynical standard. The article actually discusses the costs and benefits of purposely destroying the coastal wetlands, and what would ultimately have to be done in a few generations in response. I cannot say it frequently enough. I am stunned at the statements in this article. 

This is further proof of the "BIG LIE." I have long believed that the statements in the modern Corps reports on Louisiana coastal wetland loss that claim the problem was discovered in the 1970's were a lie likely aimed at better public relations and at avoiding the knowledge piece of any negligence claim made against the federal government for the damage to the Louisiana coastal wetlands. The Corps has long admitted causing the damage to coastal Louisiana, but also claimed they did not know it was going to happen when they did what they have done to destroy the wetlands. I have called those types of statements the BIG LIE. I have previously found materials from the 1930's to 1960's that contradict the Corps statements about discovery of the problem and have even published some of the items here. I, however, have never found anything from the 1800's this explicit, and I have never found someone, anywhere, actually discussing the costs and benefits of destroying the wetlands before the federal government undertook the action that led to their destruction.

I also find it interesting that the person giving this article to Len Bahr is a retired Army General from the Corps. I would love to know when and where he first discovered this article.

Erich P Rapp.

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The sleeping bear's eyes may have begun to open. Perhaps the Corps of Engineers is signaling that it will begin acknowledging that the management of the entirety of the Mississippi River is connected to the health of the coastal wetlands in Louisiana. In a front page story on Sunday July 5, 2009 in the Baton Rouge Advocate Richard Burgess writes an article entitled, Corps considers change in water flow into Atchafalaya. 

Nancy Powell, chief of the Corps' New Orleans district hydraulics and hydrologic branch, suggests that the Corps might operate the Old River Control Structure at the northern end of the Atchafalaya River in the interest of Louisiana coastal restoration and preservation. It seems like an obvious thing to do, but the reality and symbolism of the Corps making this philosophical shift in policy would be profound.

At a time when the Corps was just beginning to manage the Mississippi River for the purpose of navigation, the Red River was a tributary entering the Mississippi River at the northern side of what was called Turnbull Bend. In turn, the Atchafalaya River was a distributary exiting the main channel of the Mississippi River at the southern side of Turnbull Bend. In 1831, Captain Henry M. Shreve, an early agent of the Corps, dug a canal through the neck of Turnbull bend. This canal called "Shreve's Cut" changed the flow of the river in a profound way. 

Shreve's Cut made it more likely the Mississippi River's main channel would change course and adopt the course of the Atchafalaya River's channel as the Mississippi River's main channel. In the 1950's, the Corps built the Old River Control Structure in an attempt to rectify its earlier misstep digging Shreve's Cut  and to prevent the eventuality of the Mississippi River changing course from happening. The structure has since then been used primarily for this purpose. And undoubtedly an important purpose it is. The economic damage that would be caused by the Mississippi River's main channel changing courses to adopt the Atchafalaya River's channel as the Mississippi River's own main channel would be extraordinary. 

The America's Wetlands web site has a good description of the Old River Control Structure and the history of Turnbull Bend along with some useful diagrams. The section of the web site is called Controlling the River.   

The operation of the Old River Control Structure at Simmesport is the very essence of management of the Mississippi River. The Corps has not historically even considered managing the river north of the Louisiana coastal zone with consideration of the impact of those actions on the coast of Louisiana. The Corps has, heretofore, managed the Mississippi River north of the Louisiana coastal zone as though the Mississippi River to the North of the coastal zone was not casually connected to coastal land loss in Louisiana.

By acknowledging the connection of the Old River Control Structure to coastal restoration and preservation, the Corps might manage the distribution of sediment load of the Mississippi and Red Rivers in a more strategic way to aid with coastal restoration and preservation projects. The gates or "dam" at the Old River Control Structure were built to allow for the passage of sediment in the river through the gates. This allows sediment to flow into the Atchafalaya River or remain in the Mississippi River at the Corps' choice. This design is different from other large earthen dams in the Mississippi River drainage basin that trap virtually all the sediment that enters the reservoir behind the dam. This, of course, suggests that dams could be built that do not trap sediment in the reservoir behind them, but that is another story entirely.

The idea that the Corps could operate the Old River Control Structure to help with coastal restoration and preservation in Louisiana is a small gesture. The Corps has not even yet decided what to do. Nevertheless, the acknowledgment of the connection is symbolically significant.  I have to agree with the Corps' Ms. Powell as quoted in the Baton Rouge Advocate article, "It's kind of exciting."

Erich P Rapp.

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The Mississippi River does not carry enough sediment through Louisiana to sustain much less restore coastal Louisiana. That has been my nightmare fear since I began studying this subject years ago. It has also been a theme of this blog and an important argument for the monetary liability of the federal government for the damage to coastal wetlands in Louisiana. Unfortunately, the situation may be even worse than I thought.

I have long believed that one of the most important causes of coastal land loss in Louisiana has been the construction of dams and slackwater navigation pools in the Mississippi River and its tributaries. The most significant of these tributary dam systems have been in the Missouri and Arkansas Rivers. These dams have all been built by the federal government with the most important built by the United States Army Corps of Engineers and additional dams built by the Bureau of Reclamation in the United States Department of the Interior. The construction of these dams has reduced the sediment load in the Mississippi River passing through Louisiana by over 50%.

Over the last year or so, I have traded a small set of email correspondence with Michael D Blum, a now former geology and geophysics professor at Louisiana State University. Blum has been conducting research on the amount of sediment carried by the Mississippi River and the river's potential for carrying sediment in the absence of the dam systems. His research is being published on Sunday June 28th in Nature Geoscience in an article entitled,  "Drowning of the Mississippi Delta due to insufficient sediment supply and global sea-level rise." A fee is required for the purchase of the article. Blum's co-author is LSU professor emeritus of Oceanography and Coastal Sciences, Harry H. Roberts.

Sadly, this article concludes that even if the dams in the Mississippi River tributaries were removed, the rate of global sea rise would still more than offset the sediment deposit from the Mississippi River were the river and the coastal wetlands reconnected.

If this research is accepted as accurate, this leaves Louisiana with some rather stark and unpleasant decisions that need to be made. Some of the early decisions will concern what efforts will be made to reconnect the river to the wetlands and how will the limited sediment supply be allocated to sustaining some portion of the coast. Implicit in this decision is the question of what areas will be abandon. I again also raise the question of whether the federal government should be held financially responsible for the loss of the coastal wetlands in a court of law. A related judicial question concerns whether the federal government should be compelled to consider the impact on coastal Louisiana of actions in the management of the Mississippi River system including the tributaries far to the north of Louisiana. Numerous existing federal statutes would appear to require this consideration.

Congratulations to Dr. Michael Blum and Dr. Harry H. Roberts on the publication of their article and on the completion of his research.

Erich P. Rapp.

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On June 5, 2009, WLAE-TV broadcast the first of a six part monthly series on coastal wetland land loss and what is needed for restoration. WLAE is the PBS affiliate in New Orleans. The series is intended as an in-depth examination of  the problem with coastal land loss in Louisiana and what can be done to protect and restore the coastal wetlands.

The first episode was aired on Friday June 5, 2009. It featured an interview with Bob Marshall, a journalist with the Times Picayune. Following the interview, the half hour documentary, Harvest to Restore was broadcast.

The plan is to continue the series for six months. The program will provide viewers with the basic information on how the coast was formed and why it is now being lost. The series will also examine the economic importance of the Louisiana coast on the fishing, oil and shipping industries and how the land loss is impacting all of the United States. Finally, the series will present current thinking on solutions to the coastal land loss problem.

I am encouraging everyone to watch this program as it is broadcast. The individual programs in the series are also being posted on at Category Five/Wetlands Watch, which is a web site dedicated to the show where the episodes can be viewed subsequent to broadcast.

Erich P. Rapp.

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The trial against the Corps of Engineers related to the role of the Mississippi River Gulf Outlet (MRGO) in Hurricane Katrina flooding has concluded. The trial has largely been a classic example of dueling expert witnesses. Plaintiff experts concluded that MRGO played a major role in the flooding after Hurricane Katrina and the Corps experts concluded that MRGO played essentially no role in the flooding after Hurricane Katrina.

The process of preparing and filing post trial briefs will likely take several months with submission of the case to Judge Duval being completed by August. The Judge will then review the evidence and make his decision which will almost inevitably be appealed to the United States Fifth Circuit Court of Appeals and even possibly the United States Supreme Court. The ultimate outcome is likely a number of years away.

Nevertheless, the fact that a trial has been held and a trial court decision will likely result is remarkable in itself. Very few cases of this sort get to the point of a trial. As Justice Oliver Wendell Holmes once said, "Making claims against the federal government requires turning square corners." The lawyers for the plaintiffs in this case seem to have some capacity for "turning square corners." The outcome of this suit has enormous significance for coastal Louisiana. Many of the legal principles presented by the lawyers for the plaintiffs would also be useful in making other types of claims against the federal government for Louisiana coastal wetland land loss.

Mark Schleifstein has published an article in the New Orleans Times Picayune on Thursday May 14, 2009 at 8:55 PM entitled, MR-GO flooding suit in judge's hands, which details events at the end of the trial.

Erich P Rapp.

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The U.S. Department of Interior will give Louisiana $242 million over the next two years for coastal restoration and protection projects. These funds are the result of the Energy Policy Act of 2005 which created the coast impact assistance program. The funds come from federal offshore oil and gas leasing and production.

According to the Baton Rouge Advocate article on Friday April 24, 2009 entitled, State to get millions for coastal restoration, Carlton Dufrechou, executive director of the Lake Pontchartrain Basin Foundation and P.J. Hahn, administrator for coastal zone management in Plaquemines Parish, expressed their gratitude for the funds. U.S. Senator Landrieu stated, “It reminds us that a thriving oil and gas industry provides many benefits to Louisiana.”

Erich P. Rapp.

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The civil case against the US Army Corps of Engineers being presented in United States District Court in New Orleans continues. The six plaintiffs are presenting their case against the Corps of Engineers to District Judge Stanwood Duval. The stakes to the community are very high. The Corps of Engineers believe the potential damages may be as much as $100 billion.

The basis for the community's complaint against the Corps of Engineers is the Corps design, construction and maintenance of the Mississippi River Gulf Outlet ("MRGO") which is blamed for funneling hurricane storm surge toward St. Bernard Parish and New Orleans during Hurricane Katrina. Because of the damage that MRGO has caused to the coastal wetlands south of New Orleans, the Corps has closed the waterway to navigation.

For a good account of why this trial is so important to members of  the New Orleans and St. Bernard Parish communities, see the news article by Patrik Jonsson published in the April 22, 2009 edition of the Christian Science Monitor entitled, Katrina trial: New Orleans truth commission which is an apt title if I have ever seen one.

Special thanks to the Patrik Jonsson, Christian Science Monitor and other national media publications for sending reporters to follow this important trial. Thanks also to the Christian Science Monitor for their past thoughtful coverage of coastal issues in Louisiana. We need the help of the nation as a whole if we are going to address the loss of coastal wetlands in Louisiana.

Erich P Rapp.

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The trial in federal district court against the Army Corps of Engineers concerning damage from Hurricane Katrina caused by the Mississippi River Gulf Outlet began today. The claims of six plaintiffs against the federal government are being heard over the next month by United States District Court Judge Stanwood Duval.

The plaintiffs contend that the Corps' improper design, construction and maintenance of the Mississippi River Gulf Outlet ("MRGO") caused the flood waters of Hurricane Katrina to damage their homes and businesses. The Corps has repeatedly responded that they are immune from such lawsuits.

The result of this trial and any subsequent appeals have potentially far reaching impacts. This blog has repeatedly discussed the potential for federal liability for damages as a result of the loss of coastal wetlands in Louisiana. It has been a central theme of this blog that the federal government's improper design, construction and maintenance of various structures in the Mississippi River drainage basin have cause the loss of coastal wetlands in Louisiana. If the plaintiffs in the MRGO lawsuit are successful. The result will validate some of the core arguments that I have put forward in this blog. 

The federal government has granted the public a tort action against the federal government in some instances. This right is contained in the Federal Tort Claims Act. In the MRGO case, however, the Corps seeks to have the tort suit dismissed claiming that certain immunities prohibit tort claims in this situation. First, the Corps claims immunity from liability for the failure of flood control structures. This immunity is contained in a separate federal statute. The judge has, however, responded that MRGO is not a flood control structure. It is a navigation facility. Thus, the immunity does not apply.

Second, the Corps claims that the decisions related to the design, construction and maintenance of MRGO are "discretionary acts" and as such they are immune from tort liability resulting from the exercise of such discretionary decision making. While generally, the federal government is not liable for exercising their discretionary judgment, federal officials have many complicated legal responsibilities when constructing a large project like MRGO. Because of various statutes protecting other societal values such as bald eagles, historic sites and the property rights of those whose land will be damaged by a federal project, federal officials have to consider and respond to these many other societal values. The failure to properly consider and account for these other societal values is not within the federal official's "discretion" and thus when damage occurs in the absence of such proper consideration, the federal government is not immune from liability.

For more information on this trial, see the New York Times article of Monday April 20, 2009 by John Schwartz entitled, Civil Lawsuit over Katrina Begins. See also the New Orleans Times Picayune article on Monday April 20, 2009 by Susan Finch entitled, St. Bernard wetlands changed dramatically after MRGO was built, geologist testifies.

Erich P. Rapp.

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On Tuesday April 14, 2009, Louisiana Governor Bobby Jindal announced plans to use a pipeline to pump Mississippi River mud into the Louisiana coastal wetlands. This process would, of course, mimic the sediment delivered to the coastal wetlands from annual flooding in earlier times.

This test is called the Mississippi River Sediment Delivery System at Bayou Dupont. Governor Jindal hopes that this test of pipeline sediment delivery will be successful and that many more such projects will be built. The project will cost about $28 million and will involve a 36 inch diameter pipeline running 6 miles from the Mississippi River to Bayou Dupont. The project is on the east side of the Mississippi River in Plaquemines Parish below New Orleans. It is expected that the project will be completed in August 2009.

For more information on this project, see the Baton Rouge Advocate article of Wednesday April 15, 2009 written by Cain Burdeau entitled, La. to pipe Mississippi River mud to help wetlands. 

Erich P. Rapp. 

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Ducks Unlimited is applying for economic stimulus money in the form of grants from the federal government to build "terraces" along Louisiana's coast. Terraces are small levees used to retain sediment in water flowing through the coastal marsh. Ducks Unlimited is making four proposals for grants from the federal government for restoration projects in Louisiana.

For more detail on these project see the Saving Coastal Louisiana entry in the Ducks Unlimited web site. The entry at this link includes video of a news story appearing on Baton Rouge Channel 33 News.

Thank you Ducks Unlimited for your efforts.

Erich P Rapp.

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On Wednesday March 4, 2009 in the late evening, Mark Schleifstein posted a Times Picayune article entitled, Sense of urgency grips coastal restoration summit. The article is a report on the two day summit held on using river diversions to rebuild Louisiana's coast. A number of coastal scientists participating in the meeting are convinced of the need for major diversions from the Mississippi River to restore coastal areas. The Corps of Engineers, however, is not convinced of the same need. Regardless of this apparent disagreement, everyone seemed to understand the urgent need to do something.

Schleifstein reported that "the summit was prompted by repeated demands by a number of influential coastal scientists and state restoration officials that the Corps of Engineers speed up efforts to include very large diversions of water from the Mississippi and Atchafalaya rivers in its plans for coastal restoration."

Of course, the Corps is far behind schedule on publishing a report on category five hurricane protections which would include flood protection and coastal protection programs. Even when published, the report will not present such a category five hurricane protection plan. It will, instead, be a plan for how to make a plan to provide category five hurricane protection. This go slow approach is occurring in open defiance of Congressional will. 

In response to this criticism, General Walsh of the Corps stated, "I think all of us agree we're on a burning platform, (But) which direction do we step off in? I don't know."

In my estimation, building large diversions from the main Mississippi river channel requires a balancing of coastal restoration needs with commercial navigation needs in the Mississippi River. The Corps has historically focused its primary interest on navigation needs, and it is not yet prepared to deal with the fall out from shifting its emphasis from sole concern with navigation to a balance between navigation and coastal restoration. Until the Corps is prepared to balance those interests, they will never support major diversions of water and sediment from the main channel of the Mississippi River.

Further, the Corps will always be able to find support for their resistance to large diversion projects from the commercial fishing and landowner interest near any proposed diversion project. While a public project may be worth building, one can always find resistance to the project from those whose property will be taken or damaged by the project. Thus, looking to those resistance points for support is an effective strategy for slowing the progress of designing and building diversion projects.

Erich P Rapp.

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The Louisiana Sea Grant Law & Policy Program publishes a periodic newsletter that summaries much about the important events in law and news related to coastal Louisiana. This newsletter is a good source of summary information on coastal law and news issues.

They have just published their February 2009 Newsletter. You can also find links to all of the Louisiana Sea Grant Program Newsletters at their web site.

I would invite you to use this valuable resource liberally.

Erich P Rapp.

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The Louisiana Governor's Advisory Commission on Coastal Protection, Restoration and Conservation recommended on Thursday February 5, 2009 building several major diversions of water and sediment from the Mississippi and Atchafalaya Rivers according to Mark Schleifstein's article in the Friday February 6, 2009 New Orleans Times Picayune entitled, Major river projects urged. Further, the Commission recommended that state and federal agencies responsible for the work draft a plan by the end of 2010 on how this would be accomplished.

If this recommendation were implemented, it would require a serious reconsideration of how the Mississippi River is managed on a scale reaching well beyond the borders of Louisiana. Inevitably removing a large quantity of fresh water and sediment from the main channel of the Mississippi River system will impact navigation. I will be interested to see the reaction of the Army Corps of Engineers to these recommendations. They have historically focused on navigation and then in the 20th century added flood control to their agenda. Those objectives have not materially conflicted or competed in recent times. Adding the diversion of a large volume of  fresh water and sediment from the main channel of the Mississippi River will require compromises between navigation and coastal restoration interests.

In this regard,  Schleifstein makes several interesting points:

1. The large diversions -- which could move 100,000 cubic feet or more of freshwater and sediment into target areas of open water each second -- could require abandoning part or all of the traditional bird foot delta of the lower Mississippi River.

2. The diversion may also require redesigning the navigation channels at the rivers' mouths to allow shipping to reach upriver ports.

3. Further still, the larger amounts of freshwater placed into brackish and saltwater wetlands will disrupt today's commercial and recreational fishing catches.

Even if we get past these issues which is much easier said than done, we will have to consider where the funding is going to come from. The Louisiana state government and Congressional delegation need to establish a funding mechanism at the federal level for implementing a long term coastal restoration program including the recently recommended diversion projects. Until the funding piece is determined, the recommendations will likely remain just that.

Erich P. Rapp.

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When I began this blog a couple of years ago, I began with the argument that the federal government was legally liability for coastal land loss in Louisiana. This liability is the result of the management of the Mississippi River system as a whole and as a result of other federal navigation facilities in Louisiana over many years. To properly present this case to a court, one would need to examine the history of what the federal government has done in the management of these facilities inside and outside of Louisiana. This history is recorded in government documents.

In theory, the Freedom of Information Act (FOIA) makes these records available to the public for examination. In reality over the past eight years, the FOIA has been a joke. My requests and the requests of others for various types of information have routinely been denied for frivolous reasons or simply ignored. 

The Obama administration has now reversed this "don't disclose" bias. On the first day in office, President Obama directed all federal agencies to take a new approach to FOIA requests. The President stated "in the face of doubt....openness prevails."  On Wednesday January 28, 2009, the USA Today posted an editorial entitled: "Let the sun shine on records" explaining the background on the issue and their hope for the future.

On Sunday January 25, 2009 Mark Schleifstein wrote a commentary in the New Orleans Times Picayune entitled, Broken Records, which describes the enormous difficulties that he has had getting FEMA records related to Hurricane Katrina and its aftermath. Mark Schleifstein's experience has been typical of the response to FOIA requests in recent years.

I feel Mark Schliefstein's pain and have experienced similar levels of obstruction. A number of years ago, I sent a FOIA to the United States Justice Department asking for a list of a certain types of claims against the federal government that had been filed in courts around the United States. This request did not seem to present any possible issue of confidential records.

My FOIA request concerned cases openly pending in district courts around the United States. If I had the resources and time, I could have gone to the clerk of each United States District Court in the country and look for the information that I had requested. It would, however, have been much less costly and thus actually feasible to gather the information had the Justice Department simply provided me with a list of the relevant case names.

In response, the Justice Department stated that some of the case names, i.e., the caption at the top of the lawsuits, contained the names of government employees and thus were protected from FOIA requests by confidentiality provisions preventing the release of records related to government employees. Often a lawsuit against a government agency may in title include the Secretary of the Department's name. The confidentiality provision that the Justice Department referenced is intended to protect the human resource files of federal employees from disclosure in response to FOIA requests. Of course, a lawsuit caption is not a human resource file on a federal employee.

My response was that the records could not be considered confidential because they were already filed in the public domain as part of court filings at the various United States District Courts. The Justice Department responded in turn that the names of the cases, although filed in open court proceedings with the clerks of the various United States District Courts, were "Functionally Obscure." Thus for purposes of my request they were still confidential and protected from a FOIA request like a human resource record.

This part I never understood, but that was their position, e.g., a lawsuit filed against Secretary of US Department of Labor in his official capacity was protected from a FOIA request as though it were part of his human resource file at the Department.

The "Functional Obscurity" argument was even more absurd. The Justice Department was claiming that it would be very expensive and time consuming for me to go to the various clerks of the United States District courts and find the case names I had requested even though the records were clearly available to the public at the courthouses. Because the process of gathering the records from these open sources was time consuming and expensive, the records were as a practical matter confidential and protected from a FOIA request because they were "Functionally Obscure." 

The logic was an absurdity that only a government lawyer could dream up. It was also clearly an effort to circumvent the intent of the Freedom of Information Act.

Like the USA Today, I hope that the days of such absurd arguments are over. It would be very valuable to the cause of coastal restoration in Louisiana if the public could examine the government records making up the detailed history of how coastal land loss in the United States began and has accelerated over the last 75 years. 

Erich P. Rapp.

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Louisiana Governor Bobby Jindal addresses coastal restoration in his blog today. See Restoring Our Coast. In this blog entry, Bobby Jindal touts a public-private partnership for the restoration of  marsh land in Cameron Parish. This partnership is quite modest in terms of the scope of the problem in Louisiana, but the concept has significant merit that should be expanded upon.

The Environmental Defense Fund, National Wildlife Federation and National Audubon Society have all indicated interest in public-private partnerships and in partnerships between commercial interests and the environmental movement to restore Louisiana's coastal wetlands. These types of partnerships and avenues of cooperation are the wave of the future.

The key to restoring Louisiana's coastal wetlands is finding increased and reliable funding for the  projects which have already been studied and identified as needed. Finding such new funds will require multiple and sometimes competing stakeholders cooperating with other. 

Although I am sure as a result of being from different political parties, Bobby Jindal and Barack Obama would prefer not to think of their similarities. Nevertheless, similarities exist. Both men are level headed rational thinkers that place the public good above partisan politics and competing private agendas. The stakeholders in coastal Louisiana now need to follow the lead that Jindal and Obama have shown and begin new and unprecedented cooperation toward seeking and supporting adequate funding for real coastal wetland restoration in Louisiana. All together, we can make a change.

Erich P Rapp.

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Garrett Graves, Governor Bobby Jindal's Coastal Affairs Director, briefed a joint meeting of five Louisiana legislative committees on Tuesday January 13, 2009 regarding the failure of the Corps of Engineers to timely complete the  Louisiana Coastal Protection and Restoration Study that the Corps has been mandated to produce.  The Corps is now over a year late producing the report and has no intention of providing a plan any time soon. About six months from now, the Corps has indicated that they will publish a plan for how later to create a plan for coastal protection and restoration, aka, a "decision making template."

Not surprisingly, the Corps refused to come to the state legislative meeting to discuss the matter. One legislator suggested shutting down "Henry Hub" to get everyone's attention. I have written about Henry Hub in the past and its importance to natural gas distribution in the country. Shutting down Henry Hub is not a practical option and I don't think the suggestion was intended seriously, but it would get everyone's attention. 

The reality is that the Corps of Engineers is moving forward on new coastal protection and restoration planning at a glacial speed.

For more information on this meeting, see Mark Schleifstein's article in the Wednesday January 14, 2009 New Orleans Times Picayune entitled, Army Corps of Engineers delays outrage.

Erich P. Rapp.

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New Orleans native and environmental regulation expert, Lisa Perez Jackson, has moved closer today to confirmation as the new head of the Environmental Protection Agency ("EPA"). This does not have any direct bearing on coastal restoration in Louisiana, but Ms. Jackson's family is from New Orleans. They evacuated and suffered as a result of Hurricane Katrina, and Ms. Jackson fully understands the issues related to coastal land loss in Louisiana. This knowledge and experience cannot hurt the cause of coastal restoration in Louisiana. This is one of a number of stories that gives me hope for the years ahead.

For a news report on Ms. Jackson's progress through the confirmation process, see Jonathan Tilove's article in the New Orleans Times Picayune on Thursday January 15, 2009 entitled, EPA nominee describes government response to Katrina as "inept and incapable."

Erich P Rapp.

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I regret not having written on this blog in several weeks. It has not been for lack of interesting news and material to discuss. I'll begin anew with a brief reference to the December 15, 2008 commentary in the New Orleans Gambit Weekly entitled, "Reform the Corps Now." 

If you are looking for a quick read on what's happening in the politics of hurricane protection, this editorial is a good place to start. This editorial explains why we are still just "thinking" about category 5 hurricane protection and not acting on it. The Corps is dragging its feet. They are getting ready to publish (very late) not a plan for category 5 hurricane protection, but a report on how to create a plan (aka a "decision making template"). That is right. The Corps is going to publish a plan for making a plan and that publication will be a year and a half after the deadline for delivering the actual plan.

The editorial also recounts some other instances of the Corps'  lack of adequate and useful attention to the urgent need for coastal restoration. Please take a few minutes and read this editorial. It's worth the time. 

Erich P Rapp.

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On Sunday December 14, 2008 and Monday December 15, 2008, the New Orleans Times Picayune has published the first two parts of a three part series on the loss of Louisiana's coastal wetlands. This series is an excellent media tutorial on what, where, when and how Louisiana is losing its coastal wetlands. The series has been published on the front page of the Sunday and Monday paper. The third party will be published on Tuesday December 16, 2008. This series is a great opportunity for the general public to learn what is happening to coastal Louisiana and why.

The first part is entitled - Losing Louisiana Part 1: Because of subsidence and global warming, Louisiana is slowly disappearing.  

The second part is entitled - Losing Louisiana Part 2: Southeast Louisiana is sinking under its own weight.

The third part of the series is entitled - Losing Louisiana Part 3: Protecting southeast Louisiana will be extraordinarily expensive.

The effort that the New Orleans Times Picayune has undertaken here is extraordinarily important. Everyone in Louisiana speaks of Louisiana's coastal land loss at some point, but not everyone understands what is happening. If we from Louisiana are to persuade the nation to support our efforts to protect and restore Louisiana's coast, the path will require as many knowledgeable advocates as Louisiana can find and educate. The New Orleans Times Picayune is helping that cause and I applaud them.

Erich P Rapp.

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On Thursday December 4, 2008, the Corps of Engineers held a groundbreaking ceremony for the commencement of construction on a hurricane storm surge barrier that will prevent hurricane storm surge from entering the Mississippi River Gulf Outlet (MRGO) and ultimately prevent storm surge from reaching the Inner Harbor Canal aka the Industrial Canal. 

In terms of hurricane protection, this is an important project for the City of New Orleans. Hurricane storm surge pushed into the Industrial Canal is a significant risk for flooding in the City of New Orleans proper. 

During Hurricane Katrina, the storm surge into the Industrial Canal caused four levee breaches that flooded parts of New Orleans including the Ninth Ward. This project would likely prevent much of this type of flooding.

The Corps expects to have a 14 foot storm surge barrier in place by August 2009 and expects to have a 24 foot barrier in place by 2011. 

For more information on this project, see Amy Wold's report in the Friday December 5, 2008 Baton Rouge Advocate entitled, Corps Building Two Mile Flood Wall. 

Erich P Rapp. 

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On Friday November 21, 2008 Governor Bobby Jindal announced the appointment of David Richard to the Coastal Protection and Restoration Authority. David Richard is from Lake Charles. He is executive vice president of Stream Property Management, Inc., a property management company. He is also a former wildlife biologist for the Louisiana Department of Wildlife and Fisheries. Richard will serve as a member of the authority residing in a parish west of the Atchafalaya River.

The Coastal Protection and Restoration Authority develops a comprehensive master plan for coastal protection. It also writes an annual plan for protecting, conserving, and restoring the coastal area through the construction and management of hurricane protection and coastal restoration projects.

For more infomation, please see Governor Jindal's Press Release.

Erich P Rapp..

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America's Wetland Foundation issued a Progress Report for the period 2002-2009 on Thursday November 20, 2008.  The report speaks of the Foundation's efforts to attract broad public support and bipartisan political support for Louisiana coastal restoration efforts. A noted achievement in the period has been the passage of federal legislation providing oil and gas revenue to Louisiana that can be used for the coastal restoration effort. The Foundation now expresses its desire to get other Gulf coast states involved in the effort to protect the Gulf of Mexico coastal area.

America's Wetland Foundation is an important consensus building effort that has created almost unanimous support among government agencies, business interests and environmental groups toward efforts to restore coastal Louisiana. That in itself is a noteworthy achievement. Please keep it up!

Erich P Rapp. 

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The Obama transition team has announced an economic stimulus plan aimed at creating 2.5 million new jobs. It appears that this plan presents an opportunity for new and expanded spending on coastal restoration projects. Jackie Calmes and Jeff Zeleny of the New York Times have written an article entitled, Obama Aids Signal a Boost in Stimulus Spending. This article includes the following excerpt: 

"Advisers to Mr. Obama say they want to use the economic crisis as an opportunity to act on many of the issues he emphasized in his campaign, including .... addressing neglected public infrastructure projects like roads and schools, and creating “green jobs” through business incentives for energy alternatives and environmentally friendly technologies."

This language seems to suggest that infrastructure projects such as those directly addressing coastal land loss in Louisiana and those related to management of the Mississippi River system might be included. This will require educating Congress and the incoming Obama administration on the need for action. The public needs to be urging Governor Jindal, Senators Landrieu and Vitter as well as the House congressional delegation to press for inclusion of coastal Louisiana projects in the Obama economic stimulus plan.

Erich P Rapp.

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As I have stated on numerous occasions in this blog, the federal government is liable for the damage to and loss of Louisiana's coastal wetlands. I believe that case could be made under the Federal Tort Claims Act in a federal district court in Louisiana. If, however, the people of Louisiana find this approach too antagonistic a stance toward the federal government, an alternative less adversarial approach exists.

Congress has created a means for the federal government to analyze its own culpability for the damages it causes without agreeing in advance to pay for those damages. The federal statutory code provides for Congressional reference cases at 28 USC sec. 2509.

The provision allows either house of Congress by resolution to ask the United States Court of Federal Claims to engage in fact finding and legal analysis with regard to a claim or potential claim for damages against the United States. The idea is that the Court of Federal Claims would determine whether a legitimate legal claim for damages would stand under law in the absence of  the federal government's sovereign immunity and/or the expiration of the statute of limitations.

In a Congressional reference case, the Court of Federal Claims would undertake fact finding just like a regular court would receiving evidence in the form of testimony, documents, and other admissible things. After the conclusion of the fact finding, i.e., the trial, the judge would write a report just like a legal opinion assessing the evidence presented and applying the law to the facts. In the report, the judge would advise Congress on whether the claim would be legally valid in the absence of the federal government's sovereign immunity and/or if the claim were made timely.

Congress is given the report and has the option of paying the claim by Congressional act or declining to pay the claim. The Court of Federal Claims report is only advisory.

While this process has probably never been used for assessing any claim as complex as the loss of coastal wetlands in Louisiana,  it could certainly be done. With the referral of the claim by either house of the Congress to the Court of Federal Claims, the State of Louisiana and the various other stakeholders with interests in coastal Louisiana could present their case to the Court of Federal Claims asserting that the federal government's actions in the management of the Mississippi River drainage basin system are a proximate cause of the loss of wetlands in Louisiana and the federal government would be liable for that damage but for sovereign immunity and/or a claim that the applicable statute of limitations has passed.

If the report from the Court of Federal Claims was favorable, the people of Louisiana would have a compelling case that the federal government should pay monetary damages for the destruction of coastal Louisiana and that the federal government is obligated to pay to restore the coastal wetlands in Louisiana.

The use of a Congressional reference case would be a way to gain moral leverage with the federal government regarding their role in the loss of coastal wetlands in Louisiana.

 Erich P Rapp.

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The State of Louisiana should view the current economic crisis as an opportunity to encourage the federal government to dramatically increase funding for coastal wetland restoration in Louisiana. Now that the federal government has done the heavy lifting on credit market and financial system stabilization, the feds will need to begin to prepare their response to the difficult economic times that  will likely follow in 2009 including a likely increase in unemployment. Regardless of whether the financial markets now stabilize, difficult economic times are likely to set in down Main St. USA for the next year or perhaps longer. 

One method of economic stimulation would be creation of a federal program to undertake 1930's WPA(1) type projects addressing environmental problems like climate change, rising sea level, loss of wetlands, ocean dead zones, etc...,  One of the most important and pressing problems that such a federal program might address is coastal land loss in Louisiana. 

The injection of those dollars into the economy would be a stimulant for business activity.  By addressing environmental problems, It would also accomplish economic and social good. The current economic crisis is not an obstacle to funding for Louisiana coastal restoration. It is instead an opportunity not to be missed.

Erich P Rapp. 

(1) The WPA was the Works Progress Administration (1935) later renamed Work Projects Administration (1939). It was a New Deal era federal program to hire workers to undertake public work projects as an economic stimulus among other purposes. 

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I am happy to see that a new blogger has decided to write regularly about Louisiana coastal issues.  An article in the October 14, 2008 edition of the Baton Rouge Advocate newspaper by Amy Wold entitled, Retired official's web site seeks coastal research reports on this new blog. In the article, Wold states that Len Bahr, the former director of the Governor's Applied Coastal Science program, has begun a blog entitled LaCoastPost. It can be found at this link or it can be found at http://www.lacoastpost.com.

Regardless of Len Bahr's retirement, he wants to maintain a voice in the Louisiana coastal restoration arena, and I am glad to have him blogging on the subject. Bahr claims to have noticed an increased level of discussion on the web regarding Louisiana coastal issues. I have also noticed an increase in activity. The number of visitors to this blog has increased almost 500% since July, and the new larger number of visitors seems to continue. Hopefully, we are accomplishing something worthwhile.

I have lifted the following quote from Bahr's introductory entry and copy it here with delight.

"We recognize that the future of Louisiana’s coast is dependent on a new management paradigm for the entire continental Mississippi watershed.  For example, dams on the Missouri River have resulted in a huge reduction in suspended sediments in the lower Mississippi River system.  If some of these sediments could be released downstream landscape restoration could be accomplished more rapidly.  We also recognize that the rate of global sea level rise from climate change will play a huge role and that the Louisiana coast could become a laboratory for effectively dealing with sea level rise worldwide."

I agree wholeheartedly with this statement. If we could get the Corps to recognize that the upper Mississippi River drainage basin is connected to the Mississippi River in Louisiana as the Corps makes management decisions about the Mississippi River system as a whole, we would be accomplishing a great deal. That will be a tough sell, but maybe if more and more of us blog on the subject something will come from our effort.

I invite you to follow Len Bahr's blog along with this blog.

Erich P Rapp.

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Some months ago, Louisiana formed the Louisiana Coastal Protection and Restoration Financing Corporation.  Louisiana has stated purpose of the corporation is as follows:

 The Coastal Protection and Restoration Authority's mandate is to develop, implement and enforce a comprehensive coastal protection and restoration master plan. For the first time in Louisiana's history, this single state authority will integrate coastal restoration and hurricane protection by marshalling the expertise and resources of the Department of Natural Resources, the Department of Transportation and Development, and other state agencies, to speak with one clear voice for the future of Louisiana's coast. Working with federal, state and local political subdivisions, including levee districts, the CPRA will work to establish a safe and sustainable coast that will protect our communities, the nation's critical energy infrastructure, and our bountiful natural resources for generations to come. The CPRA of Louisiana was established by Act 8 of the 1st Extraordinary Session of 2005.

The chairperson of the corporation is Angele Davis, the commissioner of the Division of Administration and Governor Bobby Jindal's designee to the corporation. Ted Falgout, the executive director of Port Fourchon is the vice chair.

The corporation met for the first time in July. During this initial meeting, the Department of Natural Resources Secretary, Scott Angelle, explained to the Corporation the importance of protecting and restoring Louisiana's coast in relation to protecting the energy needs of the United States. Louisiana produces more crude oil, natural gas and revenue for the Federal Treasury off its Outer Continental Shelf than any other state according to Angelle 

Coastal Protection and Restoration Authority Chairman, Garret Graves, also spoke at the initial meeting stating the enormous amount of energy and revenue Louisiana provides to the rest of the nation. According to Graves, Louisiana has provided nearly $150 billion in revenues to the Federal Treasury since offshore oil and natural gas exploration began in the state more than 50 years ago. Yet, the state has received virtually nothing in return, making every dollar the state can generate for coastal restoration and protection efforts extremely valuable.

David Miller, the recently appointed Director of Implementation for the Office of Coastal Protection and Restoration, showed the Corporation a list of both restoration and hurricane protection projects planned by the state. Miller explained that the CPRA's Fiscal Year 2009 Coastal Restoration and Hurricane Protection Annual Plan identifies about $525 million in projects the state can currently pay for but also about $1.2 billion in projects that could be built if the state had more funds available. "There is a long list of projects that the state could build if this corporation can produce some additional revenue for us," Miller said.

Department of Wildlife and Fisheries Deputy Assistant Secretary John Roussel made the case to find more revenue for restoration and protection projects by explaining the vital importance of Louisiana's coastal marshes, lakes and bays to the state's prolific fishing industry.

Roussel said recreational and commercial saltwater fishing combined account for a more than $3 billion impact on Louisiana's economy and that more than 32 percent of the nation's oyster, blue crab and shrimp harvests come from the state. He also said that more than 75 percent of the menhaden fishery in the nation is in Louisiana and that the state accounts for nearly 20 percent of all recreational saltwater fishing trips taken in the country. 

For more information about the Coastal Protection and Restoration Financing Corporation, the story paraphrased and in other places quoted in excerpted part  here can be found at the corporation's news release entitled, Coastal Protection, Restoration Financing Corp Discusses Impact of Wetlands at First Meeting.  

The corporation is a great idea, but it would be even better if the federal government would give the state some money to work on the problem. I am pretty sure that borrowing against future mineral royalties alone will be enough to solve the coastal land loss problem in Louisiana. We need to be lobbying Congress for more and quicker funding.

Erich P. Rapp.

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The US Army Corps of Engineers has begun studying ways to restore the coastal wetland damage caused by the Mississippi River-Gulf Outlet (MRGO).  On Thursday October 2, 2008, the Corps announced plans to conduct public hearings on what measures can and should be taken to restore the coastal wetlands in question.

More information about this announcement can be found in the article that Cain Burdeau of the Associated Press entitled, Army Corps looks at restoring wetlands damage. In their announcement, the Corps stated, "The Corps will evaluate a full range of comprehensive restoration measures to restore important estuarine components and ecosystem processes within the areas affected by the MRGO navigation channel," 

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The Sunday Times Picayune on September 21, 2008 had an excellent story about the small Native American community on Isle de Jean Charles in the southern part of Terrebonne Parish. The article was entitled, Tribal chief on Isle de Jean Charles says it's time to leave and was written by Darran Simon.

After Hurricanes Gustav and Ike, the Chef of this Native American community is asking the residents to move inland to higher and safer ground. The residents are resisting the call, but have suffered great economic hardship from these and earlier hurricanes. 

The Isle de Jean Charles was once four miles wide and had a population of 300-400. As the result of coastal land loss processes in Louisiana, the isle is now a quarter of a mile wide and only about 150-175 people still live on the isle. 

This story shows the most immediate impact of coastal land loss in Louisiana on human lives. These are the sorts of communities that might have an action against the Corps of Engineers and the federal government for the loss of their land and the damages to their property. 

Erich P Rapp.

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According to a story published in the Lafayette Advertiser on September 25, 2008 entitled, Boustany announces grant for Cameron, Vermilion, the Minerals Management Service of the United States Department of the Interior has given the Rockefeller Refuge Shoreline Demonstration Project in the Louisiana parishes of Cameron and Vermillion an $8.5 million grant to help prevent coastal erosion. The grant was announced by US Representative Charles W. Boustany, Jr.

The grant funds will be used to construct four test barriers to determine the most effective coastal erosion defense.  The results of the project will then be used to create principles for coastal restoration projects along the rest of the coast. The project will consist of a 700-foot section of beach fill with gravel/crushed stone, a 500-foot section of reef breakwater with gravel/crushed stone beach fill, a 500-foot section of reef breakwater with lightweight aggregate core, and a 500-foot section of concrete panel breakwater.

Erich P. Rapp.

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Stacey Plaisance, a news writer for the Associated Press, has written a good human interest story about the impact of coastal land loss in Louisiana on human lives. The story has appeared in a number of papers, but can be found in the September 18, 2008 USA Today under the title, Hurricane onslaught threatens La.'s Cajun life. The story describes some of the impact of four hurricanes in three years, and also gives a brief layman's summary of the loss of coastal wetlands in Louisiana. It's a useful read.

Erich P Rapp.

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Tonight, it appears that the City of New Orleans is safe from flooding and the federal levee system has held strong through Hurricane Gustav. I offer my congratulations to the Corps of Engineers on this success. I have frequently been critical of the Corps and the federal government on this blog in general and particularly with regard to coastal wetland loss in South Louisiana. I will not now relent in the questions that I raise and in my criticism of coastal restoration efforts.

Nevertheless, I do appreciate effective hard work as I am sure the entire population of New Orleans does. The Corps has worked very hard over the last three years to restore and improve the levees and hurricane protection systems in and around New Orleans. Their hard work has paid off today. 

Thank you and congratulations again to the United States Army Corps of Engineers. Good Work!!!

Erich P Rapp.

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Healthy coastal wetlands in Louisiana protect the communities along the coast from hurricane storm surge. One south Louisiana community that every American should care about is Erath, Louisiana. Erath is the home of Henry Hub. Henry Hub is a point where 9 interstate and 4 intrastate natural gas pipelines meet. It is also the pricing point for natural gas futures on the New York Mercentile exchange. 

If anyone is interested in modeling catastrophe scenarios and better understanding the importance of the Louisiana coastal wetlands, it would be valuable to understand the importance of Henry Hub. If Henry Hub were destroyed by a hurricane and we were unable to restore the service for several months, the impact on the eastern United States would be substantial. Any negative impact on the eastern United States would have a broad negative impact on the nation as a whole. 

The entire United States has an enormous interest in maintaining and restoring coastal wetlands in Louisiana. If for no other reason, the country has an interest in protecting Henry Hub from hurricane storm surge. 

Erich P Rapp. 

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If Gustav comes ashore on the path that is currently being projected, the coastal wetlands of Lafourche and Terrebonne parishes will likely be damaged. The current projected path is diagonal across these wetland areas.

These wetlands were build during an earlier time when the path of the Mississippi River was further to the West than its current course. This has been an area of significant coastal wetland loss, and it is a particularly fragile area because of the absence of new sediment being deposited from the Mississippi River system.

In 1905, Bayou Lafourche, a former distributary channel of the Mississippi River was separated from the river by a levee. Now, none of the sediment bearing water from the Mississippi River enters Bayou Lafourche or reaches these wetland areas. The wetlands around Houma, Louisiana in Terrebonne Parish are also very fragile and vulnerable to damage and loss. This area was the path of an even earlier channel of the Mississippi River.

One section of the central coast of Louisiana does have river delta land building capacity. This is the area around the mouth of the Atchafalaya River. This area can to some extent recover from a hurricane damaging the wetlands.

Those responsible for coastal wetland restoration in Louisiana are also considering some re-connection of the sediment bearing waters of the Mississippi River to Bayou Lafourche. This would seem to be a good idea whose time has come.

Erich P Rapp.

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For moment to moment coverage in the French Quarter, go to www.twitter.com/markmayhew.com. I do not personally know the guy, but he follows me and I follow him on Twitter. He seems a bit irreverent, but he is on location for this big news story. If I were a reporter for the NY Times, I would take a look at his feed.

Tonight, it is more difficult to write about coastal Louisiana than at any time since 2005.  I feel enormous guilt. In 2005, we stayed at my house (Waddell House circa 1910) in Spanish Town (1805), oldest neighborhood in Baton Rouge. I was recently divorced from my first wife and single. The build up to the storm was a party atmosphere with kegs on the front porch of homes in the neighborhood. The hangover set in a few days later.

At the time, many in my world said "everything has changed." It was not so. Something had changed and everything in our lives was impacted. Everything had not changed.
Despite the enormous difficulties, much in our lives was just as it had been before.

Now we are faced with a new and perhaps bigger challenge. Will the nation now view Louisiana as hopeless? Will anyone be willing to help us a second time?

My family is affluent enough to own a car and able to afford gasoline (even at exaggerated prices). For Gustav, we have left Louisiana and New Orleans. I am with my new ten year old stepdaughter, Abby, and my beautiful young wife, Alexis. We have checked into a two bedroom condo at the Grand Sandestin in Florida where we will remain until the storm has passed along with many from New Orleans. It is as though we have ringside seats at a boxing match. We are several hundred miles outside of the strike zone, but so close that we can see and feel the storm from an ocean front address. It is like we can feel the sweat from the prize fighter flung from his body to us in the front row. This leaves me feeling guilty about having left.

The coastal wetlands of Louisiana has been lost because of the construction of dams and levees by the federal government for the benefit of a the continuously growing United States.  Having made this sacrifice, will the nation now save us? Are we alone? Has everything now actually changed? Is it even possible for one event to change everything?  

Erich P Rapp.

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I am watching the weather forecasting models project paths for soon to be Hurricane Gustav into the coast of Louisiana. As this occurs, I find myself reflecting on the federal government and the Corps' efforts (and in some cases lack thereof) for the past three years with regard to coastal restoration and hurricane protection. The efforts to rebuild and improve hurricane protection levees around New Orleans are considerable but far, far from complete. The federal government and the Corps' efforts at coastal restoration during the same period are almost non-existent.

If Hurricane Gustav were to strike New Orleans, we can only speculate at the results and the impact that another hurricane will have on coastal restoration efforts. My predictions, however are as follows: 1) the levees in lower St. Bernard Parish will be breached and over topped; 2) the lake will not flow into New Orleans proper as long as the Corps is able largely to close off the drainage canals and the industrial canal from the lake and the Gulf; 3) the city will experience significant flooding, but less than Katrina from the inability of the pumping system to remove the rain water from the streets. 

If the city does not fill with lake water and flood a large number of otherwise occupied homes, the hurricane will be further encouragement for the federal government to accelerate and complete hurricane protection and coastal restoration efforts. If an enormous number of otherwise occupied homes are destroyed, the result will be the opposite. It will discourage the government from further efforts to improve hurricane protection levees and  from undertaking new efforts at coastal restoration. To stay on track and continue the recovery of New Orleans and Louisiana's coastal wetlands, the efforts of the government up to this date will need to show signs of success.  

Ironically, the coastal wetlands below New Orleans are largely gone because of unintended but not necessarily unanticipated consequences of Mississippi River flood control and navigation improvement undertaken by the federal government and the Corps after the 1927 Mississippi River flood and continuing into the 1970's. The cause of coastal wetland loss in Louisiana is largely the result of the changes in the Mississippi River system outside of Louisiana  undertaken by the federal government and the Corps for the benefit of commercial interests often far removed from Louisiana. Yet in spite of the fault of the federal government and the Corps, further damage to New Orleans and southeastern Louisiana may well discourage further efforts to restore New Orleans and Louisiana's coastal wetlands. In the aftermath of another hurricane, the situation may be presented as a hopeless and largely the result of local causes.  

The reality behind all of these events is that the federal government and the Corps have known since the wetlands began eroding away in the 1930's that the coastal wetlands were subsiding and dependent on new sediment from the Mississippi River to offset the subsidence. 

By reducing the sediment load in the river as the result of construction of dams and reservoirs (primarily on the Missouri and Arkansas Rivers) and by containing the river within levees, the federal government and the Corps knew before their efforts began that a result of these undertakings would be the loss of coastal wetlands in Louisiana. It is not difficult to find academic and government reports back into the 19th century acknowledging the process of regional subsidence offset by sedimentation from the Mississippi River. I would by happy to provide more detailed references to those who need them.

Now, we wait to see the extent to which the consequences of the sins of the federal government and the Corps will be visited upon the City of New Orleans and the coastal wetlands of Louisiana yet again as a result of Gustav.

Erich P Rapp. 

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In a press release on August 19, 2008, the Louisiana Department of Natural Resources announced that Louis Buatt formerly of the Louisiana Department of Environmental Quality has been asked to run the state office of coastal restoration and management, an agency charged with protecting, maintaining and restoring wetlands.

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On Wednesday July 30, 2008, local government, business, environmental and neighborhood leaders provided input to the Corps of Engineers on the plan to protect coastal Louisiana. Dozens of participants in two meetings at the University of New Orleans completed computer matrix forms that measured how the participant values saving lives, protecting property value or jobs, creating or protecting wetlands and other natural resources, and keeping historic properties and neighborhoods or archaeological sites from being flooded.

For more detail on this process and how it is being repeated across coastal Louisianan see Mark Schleifstein's article entitled, Local leaders tell corps about levee trade-offs in the New Orleans Times Picayune on Thursday July 31, 2008.

Erich P Rapp.

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On Friday July 26, 2008, Louisiana Governor Bobby Jindal spoke to about 100 Thibodaux area residents at Nicholls State University. During the talk, Jindal promised to lobby the federal government for more funding for the restoration of coastal Louisiana. Of particular concern for Jindal is the federal government's requirement that Louisiana provide $1.8 billion in matching funds for levee improvements in the next three years. If Louisiana is not able to pay this bill over much more than three years, this requirement will force Louisiana to spend much of the state's discretionary funds on levee improvements. If these funds are used for levee improvments, it will impair ongoing and planned efforts at coastal wetland restoration among other things.

 Jindal also spoke of the need to elevate La Hwy. 1 to Port Fourchon. Port Fourchon processes about 18% of the nation's oil supply, and La Hwy. 1 is the only highway in and out of Port Fourchon. The improvements to La Hwy. 1 would cost about $250 million and will only be undertaken with substantial federal dollars being contributed. Jindal's message to Washington was "To me, it's wise to invest in the goose that's laying the gold eggs."

I could not agree more. The need to protect Port Fourchon is a national concern requiring a national commitment and a national response. It is much like most of the problems in coastal Louisiana.The federal government should not ask for any local funds to pay for the improvements to La Hwy. 1. Anyone suggesting the protection of Port Fourchon is a local Louisiana concern is making a suggestion akin to arguing that the protection and welfare of Washington DC is a local problem of concern only to Virginia and Maryland.

For more on Governor Jindal's visit to Nicholls State, see Ben Lundin's article in the Saturday July 26, 2008 Thibodaux Daily Comet entitled Jindal Speaks at Local Forum.

Erich P Rapp

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The National Conference of State Legislatures recently concluded its national conference in New Orleans. The meeting was held from July 22-26, 2008. During the conference, the legislators were given the opportunity to tour the Louisiana coastal wetlands by air. About 30 legislators accepted the invitation and were flown over the coast of Louisiana.

Louisiana Senate president, Joel Chaisson stated the purpose of the tour.  "Our goal was to educate decision and policymakers across the nation of the importance of Louisiana's coastal erosion problems, that it affects the entire nation."

May of the tour participants came away more aware of the importance of coastal Louisiana to the nation's energy and seafood production. Claire Taylor at the Lafayette Daily Advertiser wrote an account of the tour on July 24, 2008 entitled, Shoring support for Louisiana's wetlands. 

Erich P Rapp.
 

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The State of Louisiana is facing difficult funding problems in relation to their contribution to levee improvements in Southeastern Louisiana scheduled for completion in 2011. Louisiana is being asked to contribute $1.2 billion to the efforts that the federal government is undertaking to improve the levees in and around New Orleans.

Louisiana would like to schedule the payment of the $1.2 billion over 30 years. So far, the federal government is unwilling to go along with this extended payment schedule. Governor Jindal has advised the public that he is committed to paying the Louisiana share regardless of the payment schedule. Nevertheless, paying the entire sum in the next couple of years will put extreme strains on the Louisiana budget.

If the payment schedule is short, coastal wetland restoration efforts will suffer badly. Undoubtedly, all of Louisiana's money currently budgeted for coastal restoration will be diverted to the levee improvements should the state be required to pay the entire $1.2 billion tab in a two year period.

Again and again, the federal government fails to see the big picture. The condition that requires the levees around New Orleans and demands restoration of coastal wetlands is a problem caused by federal action. The federal government's management of the Mississippi River has caused the problem. By building dams, reservoirs, locks, and slack water navigation pools, the federal government has taken the sediment out of the Mississippi River necessary to the maintenance of the coastal wetlands in Louisiana. This federal action is destroying coastal Louisiana.

Many experts of late have spoke of multiple lines of defense from hurricanes, i.e., wetlands backed up by levees. If the federal government and the government of Louisiana are to address the problems presented by coastal land loss, they need to fix the levees and rebuild the wetlands. We cannot just do one or the other. Forcing Louisiana to divert every available dollar to levee improvements will not serve the nation's interests.

The press has reported these financial difficulties a number of times in recent weeks. On Friday July 18, 2008 Mark Schleifstein wrote a story entitled: Jindal presses Bush over levee costs in the New Orleans Times Picayune. The Associated Press issued a similar story published in several newspapers such as the Saturday July 19, 2008 in Southern Mississippi's Sun Herald entitled Jindal seeks 30 years to repay.

Erich P Rapp. 

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The United States Department of Agriculture runs the Louisiana Plant Materials Center in Galliano, Louisiana next to the airport. The Plant Materials Center plays an important role in coastal protection projects because they are assigned the task of finding suitable plants to use in areas where marshland is being rebuild or protected. The Center is very important to those working on coastal wetland projects, but largely unknown to the public. It is on 90 acres with greenhouses and fields to simulate marsh. The Center can test plants for many years before using them in coastal protection projects.

Dr. Richard Neill, the Center's manager and Garrett Thomassie, the assistant manager, are evaluating the plants that nature has given us and trying to determine which ones create the greatest soil stabilization in various environments. Some of the projects that they have worked on include projects for the Barataria-Terrebonne National Estuary Program, Port Fourchon, re-vegetation of City Park in New Orleans, and re-vegetation of the Naval Air Station at Belle Chase.

If you are interested in learning more about the Louisiana Plant Materials Program, you can arrange a tour by calling (985) 475-5280. Also see, the Saturday June 21, 2008 article at WWL-TV entitled, Plant Center grows plants that halt coastal erosion.

Erich P Rapp.

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Concrete from the Twin Spans bridges will be dismantled in 2009 and used for a coastal protection project according to Louisiana Governor Bobby Jindal speaking on Tuesday June 17, 2008. Jindal stated,

“Using material from the twin span bridges to build reefs like these is a first in Louisiana. In the past, limestone has been shipped in from out of state, but this historic project uses material already on hand and reduces the cost of building this valuable habitat.”

The Coastal Conservation Association of Louisiana, in partnership with Louisiana Department of Wildlife and Fisheries, Louisiana Department of Transportation and Development and NOAA Office of Coast Survey are planning to construct two inshore artificial reefs in Lake Pontchartrain. The reefs will be constructed from the concrete bridge rubble. They will provide a habitat for marine life on an area of about one to two acres.

For more information on this project, see the WWL article dated June 10, 2009 entitled, Concrete from Twin Spans to Help with Coastal Restoration.

Erich P Rapp.

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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.

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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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Louisiana Governor, Bobby Jindal, has asked the Army Corps of Engineers to change its organizational structure. Jindal wants the New Orleans District Office of the Corps to be come a Division Office reporting directly to the Corps headquarters in Washington.

At present, the New Orleans District Office of the Corps reports to the Division office in Vicksburg, Mississippi. This change would reduce the time required for the Corps to make decisions related to New Orleans and Louisiana coastal protection and restoration.

Garrett Graves, Governor Jindal's Director of the Office of Coastal Activities, made the formal request to the Mississippi River Commission in Vicksburg. Graves stated that the change was crucial now because the Corps was preparing to undertake $15 billion in repair and rebuilding of the region's hurricane protection flood system.

For more information on this request, se the New Orleans Times Picayune articled from Saturday April 12, 2008 entitled: Jindal seeks change in Corps of Engineers organization.

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

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

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

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

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

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

Erich P Rapp.

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