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

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

Barry stated,

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

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

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

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

Erich P Rapp. 

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As the Corps of Engineers closes gates on the Bonnet Care spillway and the water level on the Mississippi River goes down, Louisiana has lost a once in a decade opportunity to divert an enormous amount of river sediment into the coastal wetlands of Louisiana. Times of high water on the Mississippi River are very important times in the coastal wetlands land building process. Unfortunately, we were not prepared to take advantage of this rare opportunity and the loss of coastal wetlands continues.

According to Chris Kirkham's Friday April 18, 2008 article in the New Orleans Times Picayune entitled, State may be spilling coast's rescue, the recent high water event on the Mississippi River brought 900,000 tons of river sediment through the state and into the Gulf of Mexico.

If the Corps of Engineers had been better prepared to divert a large portion of the sediment into the coastal wetlands, the condition of the coastal wetlands might have improved this spring. The Corps of Engineers needs to change the river management to take advantage of the next high water level event.

Erich. 

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I have long contended that the federal government is subject to suit in tort for the damage that they have caused to Louisiana's coastal wetlands. United States Federal District Court Judge Stanwood Duval entered a ruling on Friday May 2, 2008 supporting this position.

On Friday, Judge Duval held that the United States Army Corps of Engineers is subject to suit for alleged defects in the Mississippi River Gulf Outlet ("MRGO") that destroyed wetlands and are alleged to have turned MRGO into a funnel for hurricane storm surge. MRGO is a navigational canal build and operated by the Corps connecting the Gulf of Mexico to the Inner Harbor Navigation Canal also known as the Industrial Canal in New Orelans via the Gulf Intracoastal Waterway.

Judge Duval rejected the Corps' claim that federal law makes the agency immune from lawsuits over damage caused by its flood protection projects. The judge found that because the navigational channel is not part of the Lake Pontchartrain and Vicinity Hurricane Protection Plan, the Corps is not immune from suit.

The ruling on Friday is not a final decision in the case. It does not find that the Corps is liable for damages caused from flooding in East New Orleans, the 9th Ward and St. Bernard Parish. This determination will only be made at the conclusion of the trial.

For a more detailed account of the decision, see Susan Finch's article in the New Orleans Times Picayune entitled: Judge: Corps can be sued for flood.  

If ultimately upheld, this decision would support other tort suits against the federal government and the Corps of Engineers related to damage that the Corps has caused to Louisiana's coastal wetlands.

Erich P Rapp

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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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In the next several years, Louisiana faces serious challenges funding the state's share of scheduled hurricane protection and coastal restoration projects. Louisiana's share of such projects scheduled for fiscal year (fy) 2009 is $1.2 billion. While Louisiana's recent special session received significant media coverage in part because of the appropriation of $300 million for hurricane protection and coastal restoration projects, this funding is far short of the money required to cover the state's burden for projects planned by the federal government.

Even when this $300 million additional appropriation is combined with the prior budget of $224 million, the state is still short of the needed funding for fy 2009. In 2010 and beyond, the state's funding challenges continue. Louisiana will need $748 million in 2010 and $642 million in 2011 to cover Louisiana's share of federal led hurricane protection and coastal wetland restoration projects with considerable emphasis in all of these years on hurricane protection projects.

These  projects are indispensable to the future of Louisiana, and the state will have to find new funding sources to cover the costs. Even if all of these scheduled projects are fully funded, the spending proposed for coastal wetland restoration and protection is still far short of the need.

Louisiana is no where near the level of funding needed for a material coastal wetland protection much less a restoration program.  For more information on these funding challenges, see March 19, 2008 Times Picayune article, Coastal Authority to Meet Today to Talk Funding. 

Erich P. Rapp.

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The Baton Rouge Advocate published an article on Friday February 29, 2008 entitled, Southwest La. wants coastal aid. This article summarizes recent complaints from public officials in southwest Louisiana concerning the relative balance of limited coastal restoration funds between southeastern and southwestern Louisiana.

These officials complain that in the 2009 Coastal Restoration and Protection Authority (CRPA)budget a total of $14 million in funds are budgeted for southeast Louisiana projects and only $1 million in funds are budgeted for projects in southwest Louisiana.

The chairman of CPRA, Garret Graves, seems prepared to respond. He has indicated in a recent CPRA meeting that the Jindal administration is considering a restructuring of the board to allow more balance. The type of restructuring that is under consideration is using land mass or population to determine representation.

Erich P Rapp.

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One cause of coastal land loss in Louisiana is saltwater intrusion into the coastal wetlands. One cause of saltwater intrusion into the coastal wetlands are north-south navigation channels connecting the Gulf of Mexico with inland locations. The construction and subsequent dredging of these open water channels allow saltwater to move inland further than existing wetlands would otherwise permit.

The Mississippi River Gulf Outlet also known as MRGO is one such navigation channel. Along the course of this channel since it was built in the late 1950's, larger and larger bodies of open water at and near the main channel have developed.

After hurricane Katrina, MRGO was referred to as the hurricane highway and blamed for storm surge reaching into St. Bernard and Orleans Parish along the course of MRGO. This resulted in a lawsuit against the Corps of Engineers for resulting flood damage that is still pending in federal court as of this writing.

After the hurricane, the Corps of Engineers began receiving increasing political pressure to close MRGO. This has result in a study and recommendations from the Corps concerning the closure of MRGO. These reports and studies are available on line at the Corps website for the New Orleans district.

Erich. 

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

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

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

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

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

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

Erich P Rapp.

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Garrett Graves, the new director of the Governor's Office of Coastal Affairs announced at a the February 24, 2008 meeting of the Coastal Protection and Restoration Authority that the Jindal administration planned a larger financial commitment from Louisiana for coastal restoration. Graves indicated that Louisiana could stop all other economic development initiatives if it were not prepared to do more to protect and restore the coast.

Graves also indicated that that the state was considering a number of larger scale projects that would be massive diversions from the Mississippi River. These projects include the artificial third delta and a large diversion in lower Plaquemines Parish.

The Jindal administration considers Louisiana under invested in coastal restoration and levee protection and seeks to change this condition. Of course, this change will also require a fundamental change in the way the Corps of Engineers moves forward with projects.

For more information on Graves comments at this meeting, see the Baton Rouge Advocate article published on February 25, 2008 entitled, Official: La to expand coastal commitment.

Erich P Rapp.   

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The New Orleans Times Picayune published an editorial on Wednesday March 5, 2008 entitled, Editorial: Promises, not favors.  According to John Barry (author, Rising Tide), a member of the state's Coastal Protection and Restoration Authority (CPRA), the Bush administration has indicated that it was doing Louisiana a favor when it gave Louisiana a year to come up with $1.78 billion in matching funds for levee improvements and flood control projects.

Members of CPRA do not believe that Louisiana can come up with $1.78 billion on such a short time frame, and this problem could jeopardize construction of 100 year flood protection for New Orleans by 2011 as President Bush and the Corps have promised.

Barry urges the federal government to allow Louisiana a 30 year payment plan for providing its share of the cost of the flood protection and levee improvement plan. The size of this project is not typical and the match is outsized justifying the additional time.

The Times Picayune editors rightly point out that President Bush stood in Jackson Square after Hurricane Katrina and promised to do whatever was necessary to rebuild New Orleans. Stronger levees and healthy coastal wetlands are an essential part of rebuilding a thriving New Orleans. President Bush and his administration should live up to this promise.

Erich P Rapp. 

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U.S. Representative Charles Boustany believes Southwest Louisiana is not getting its fair share of funds for coastal restoration. Boustany recently sent a letter to Governor Jindal as well as the leadership of the state house and senate complaining that Southwest Louisiana is shortchanged in money allocation and attention from the Coastal Protection and Restoration Authority (CPRA). Because of this, Boustany would like to change the make up of the CPRA board to allow more representation from Southwest Louisiana. The area of concern to Boustany is from Vermilion Parish to the Texas state line and includes the Chenier Plain.

Boustany's concerns have been voiced in news articles including articles in the Lafayette Daily Advertiser on February 18, 2008 entitled Boustany seeks equity for southwest Louisiana and on February 24, 2008 entitled Boustany fights coastal-funding inequity. 

Erich P Rapp. 

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

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

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

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

Erich P Rapp. 

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

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

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

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

Erich.

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

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

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

Erich P Rapp

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

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

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

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

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

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

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

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

Erich P. Rapp.

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

Erich P Rapp.

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Kudos to Michael Grunwald of Time Magazine. In an article posted on August 1, 2007,
titled: The Threatening Storm, he has written a strong worded and hard hitting article about the need to rebuild the coastal wetlands of Louisiana. He strongly criticizes the Corps of Engineers and the political process that enables them to make pork barrel decisions instead of well reasoned decisions.

I am particularly impressed with his comments on the need to examine the entire ecosystem of the Mississippi River drainage basin when deciding how to address the problem of coastal land loss in Louisiana. The dams built far upstream from New Orleans have played an important role in the destruction of the wetlands in Louisiana. The officials making decisions about  Louisiana coastal wetland protection and restoration need to look beyond the boundaries of the wetlands themselves when making decisions.

Erich P Rapp.

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