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

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

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

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

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

Erich P Rapp.

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

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

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

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

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

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

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

Erich P. Rapp 

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

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

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

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

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

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

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

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

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

Erich Rapp.

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I appreciate the people of Pennsylvania for being leaders in the dam removal movement. Dams and locks damage river systems. Dams and locks in the Mississippi River drainage basin damage the Louisiana coastal wetlands by trapping sediment that would otherwise travel to the river delta and help sustain the coastal wetlands.  

The Harrisburg Patriot-News posted an article on Pennlive.com on August 6, 2007 entitled: Old Dams: Removing these barriers allows waterways to regain free-flow. 

Over 1/3 of Pennsylvania is within the Mississippi River drainage basin. According to the Patriot-News, Pennsylvania has removed 70 dams in the past decade and is removing an additional 3 dams on one creek in the next year. Although the removal of a dam in Pennsylvania will not directly improve the health of the coastal wetlands in Louisiana because so many dams and locks remain in place between Pennsylvania and Louisiana, the dam removal movement should be encouraged.

Officials in Louisiana should monitor the water resource policies of other states. They should encourage good decisions and discourage bad ones. What is done in the Mississippi River drainage basin outside of Louisiana matters, but is often ignored in Louisiana.

Erich P Rapp.

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