Louisiana may have found the muscle it's been looking for to force the Army Corps of Engineers to make better use of the Mississippi River to deliver scarce sediment to the state's coastline for rebuilding wetlands, a Tulane law professor said Thursday.
That plan was the predecessor of the state's 2012 Coastal Master Plan, and was used to direct state and federal coastal restoration efforts until the state plan was adopted.
Davis explained the provision during a presentation before the Southeast Louisiana Flood Control Authority-East. The authority governs levees on the east bank of the Mississippi River in the New Orleans area, but also participates in coastal restoration issues, as the restoration projects often are designed to protect levees from hurricane storm surges.
State and local officials involved in coastal restoration efforts have criticized the corps for what they consider a waste of the sediment carried by the river through dredging projects that dispose of the material into the Gulf of Mexico, and for not increasing the flow of sediment from areas upstream, especially from the Missouri River watershed.
"The Mississippi River used to carry well over twice the sediment it now carries," said John Barry, a member of both the levee authority and the state Coastal Protection and Restoration Authority, and the author of "Rising Tide: The Great Mississippi Flood of 1927 and How it Changed America," a book that details the role of the corps in governing the river before and after that flood.
Over the past 150 years, the corps' expansion and raising of levees along the Mississippi River to protect communities like New Orleans from spring floods, the building of dams like those on the Missouri, and the extension of jetties into the Gulf of Mexico to speed water at its mouth to reduce the formation of sand bars that block shipping, are key reasons that sediment no longer reaches interior wetlands and open waters to build land, Barry said.
"A huge proportion of that sediment is lying behind six dams on the Missouri River," Barry said. "Over 100 million tons a year is missing, a quarter of the historic load that built the land down here."
Barry requested that Davis brief the authority on legal options aimed at getting the corps to do more to move some of that sediment downriver.
"I'm not recommending we tear down those dams, but what we would like to happen is for the corps to take into account the need down here for sediment," he said. "It's never been a factor in their handling of the Mississippi River."
He said a National Academy of Sciences committee reviewing the Louisiana Coastal Protection and Restoration Study, a 2008 corps study that was supposed to provide alternatives for protecting the state's coastline from the equivalent of a Category 5 hurricane with both levees and coastal restoration projects, found that a major failing of the report was the lack of a budget for the use of sediment carried by the sediment, and, indeed, no information on how much sediment was needed for restoration.
"It's not inconceivable that someone in the state will take legal action (to force the corps to consider Louisiana's coastal restoration needs in regulating water and sediment flow on the river and its tributaries)," Barry said. "Whether it's us or the Coastal Protection and Restoration Authority or some other entity, I don't know."
State officials also have had a running battle with the corps over its decision not to use sediment dredged from the river "beneficially," by piping it to locations where it can build land. The corps responds that it is limited in the amount it can spend on such beneficial use projects by Congress.
Another federal law authorizes the spending of $100 million on such beneficial use projects, but Congress has never appropriated money for that program.
Davis, the former executive director of the Baton Rouge-based Coalition to Restore Coastal Louisiana, a group supported by both industry and environmentalists that promotes restoration, said the provision contained in CWPPRA could be used to force corps action, even without going to court, if the state were to routinely insist on its use.
The provision says: "In implementing, maintaining, modifying, or rehabilitating navigation, flood control, or irrigation projects, other than emergency actions, under other authorities, the Secretary (of the Army), in consultation with the Director (of the U.S. Fish & Wildlife Service) and the Administrator (of the Environmental Protection Agency), shall ensure that such actions are consistent with the purposes of the restoration plan submitted pursuant to this section."
Davis said it may be necessary to determine whether the consultation requirement can be considered to require the actions to be consistent with the new state master plan, rather than the 1993 version. In its most recent announcement requesting suggestions for new projects to be approved under the 22-year-old program, the CWPPRA task force recommended that they be consistent with the new plan.
The state's senior coastal restoration official said he and other state leaders are running out of patience with the corps, but that the state hasn't decided whether it's time to go to court to press the issue.
"It is crystal clear that the corps management of the Mississippi River is the largest ongoing cause of wetlands loss in the United States," said Garret Graves, chairman of the state Coastal Protection and Restoration Authority and coastal advisor to Gov. Bobby Jindal. "When you think that this is the agency responsible for regulating wetlands, their actions are hypocritical, to say the least."