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

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

Barry stated,

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

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

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

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

Erich P Rapp. 

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The National 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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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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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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John Barry, the author of Rising Tide, has published an Op-Ed piece in the Los Angeles Times on Wednesday April 23, 2008 entitled: Who Should Pay to Protect New Orleans. I have never seen the cause of the coastal land loss problem described more succinctly or the solution described more accurately.

Barry points out what I have been saying less artfully for many years. The most fundamental reason that the coastal wetlands in Louisiana has been lost, particularly below New Orleans, is the reduction in the sediment load in the Mississippi River drainage system. This reduction has resulted from the construction of dams in the tributaries with particular emphasis on the dams built in the Missouri River in North and South Dakota. The lower portion of Louisiana's "bird's foot" did not erode to open water because of levees in Louisiana. Below a point, no levees separate the wetlands from the river and yet the land continues to dissolve into the Gulf. The problem is not the result of a local action.  

Louisiana derives no direct benefit from those Corps dams in the Dakota's and Montana. They were built to control flooding and improve navigation on the Missouri River. In fact, the Corps of Engineers claims that it has no authority to manage the Missouri River system and those dams for the benefit of the Mississippi River or its users in any way. The Mississippi River is treated as disconnected and unrelated to the Missouri River for all purposes that the Corps of Engineers considers.

John Barry is exactly right when he says the coastal land loss problem in Louisiana has been caused as the result of actions that benefited other parts of the nation far removed from Louisiana. The protection and restoration of coastal Louisiana is a national problem requiring federal action.

Erich P Rapp

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

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

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

Erich P Rapp

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

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

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

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

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

Erich P Rapp

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

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

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

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

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

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

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

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

Erich P. Rapp.

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

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

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

Erich.

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

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

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

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

Erich P Rapp.

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

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

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

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

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

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

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

Erich P. Rapp 

 

 

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

Erich P Rapp.

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On October 16, 2007, the National Research Council issued a press release concerning the publication of their upcoming report entitled, Mississippi River Water Quality and the Clean Water Act: Progress, Challenges and Opportunities. A pre-publication copy of the report is also available online as a .pdf file. 

Again, the National Research Council has emphasized an important theme related to coastal wetland loss in Louisiana. The report strongly suggests that the Mississippi River system including the major tributaries need to be analyzed and administered as a whole and not in parts. Decisions are often made in relation to segments of the system without regard to the impact of those decisions on other parts of the river. The report specifically mentions the lack of sufficient sediment in the Mississippi River reaching the wetlands along the river in Louisiana as an example of this management issue. Inevitably decisions made far to the north of Louisiana along the Mississippi River determine the sediment transport of the river as it reaches the wetlands in Louisiana.

The people in Louisiana and the rest of the Mississippi River basin need to remember this truth when they take action in relation to the Mississippi River.

Erich P. Rapp 

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When I have questions about basic geology, I refer to Physical Geology by Charles C. Plummer, David McGeary, and Diane H. Carlson. It is an introductory college text with great explanations for everything geology related with many pictures and diagrams. 

For example, why does flowing water transport or carry sediment? The answer is on page 28,

"In a water molecule, the two hydrogen atoms are tightly bonded to the oxygen atom. However, the shape of the molecule is asymmetrical, with the two hydrogen atoms on the same side of the atom. This means the atom is polarized, with a slight excessive positive charge at the hydrogen side of the molecule and a slight excessive negative charge at the opposite side. Because of the slight electrical attraction of water molecules, other substances are readily attached to the molecules and dissolved or carried away by water. Water has been called the universal solvent. Dirt washes out of clothing; water, in blood, carries nutrients to our muscles and transports waste to our kidneys and out of our bodies."

Of course for our purposes in this blog, streams and rivers also transport sediment.

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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