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Morganza-to-the-Gulf project could become a coastal development bonanza

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The Gulf of Mexico is right behind this sign. (Photo by concerned resident of Terrebonne Parish)

The Gulf of Mexico is right behind this sign. (Photo by concerned resident of Terrebonne Parish)

by Len Bahr, Ph.D.

The person who took this photo emailed it to a confidant, along with the following message:

I took these pictures this weekend down the road from our camp. Morganaza to the Gulf is passing right now (down) the road from our camp. This development is occurring 500 feet inside the levee.

At least twenty-five years ago some residents of south Terrebonne and LaFourche Parishes  saw the Gulf Of Mexico approaching their property and they responded in an intuitively rational manner. They presented the U.S. Army Corps of Engineers with a plan that they believed would protect them and their children and grandchildren from the sea.

A jagged line was drawn across the coast on a then current map representing the proposed alignment of a sea wall about 90 miles long with a massive operating gate for the lower end of the Houma Navigation Canal and a number of smaller gates that would allow rainwater to drain out. This highly-controversial plan was dignified with an official USACE name, the Morganza-to-the-Gulf project (MttG).

In 1991 I was hired as a technical advisor in the Governor’s Office of Coastal Activities. At that time our cubbyhole office was located on floor five and one half in the State Capitol. I noticed a framed plat of the MttG project hanging on a wall and my curiosity was piqued to see a line drawn across such a large swath of coast, enclosing a whole lot of sparsely populated or uninhabited coastal wetlands.. I was warned by David Chambers, then my boss, that MttG was politically sacred and not to question its justification.

Since that day so long ago, Chamber’s advice has proven prescient. Here’s a summary of the project features from the USACE:

The proposed work is located in coastal Louisiana, approximately 60 miles southwest of New Orleans, and includes portions of Terrebonne and Lafourche parishes. The authorized project area is bounded on the west by Bayou Du Large and State Highway 311 and on the east by Bayou Lafourche with the east and west boundaries forming an apex at Thibodaux, LA. The recommended plan described in the January 2013 Post Authorization Change Report (PAC) consists of 98 miles of grass-covered earthen levees tying into US 90 near the town of Gibson to the west and Hwy 1 near Lockport, LA to the east. The southern boundary is the Gulf of Mexico.

Project Features

The tentatively selected plan in the PAC report consists of approximately 98-miles of earthen levee, 22 floodgates on navigable waterways, 23 environmental water control structures, a lock complex consisting of a lock in the Houma Navigation Canal measuring 110-ft wide by 800-ft long, an adjoining floodgate measuring 250 feet wide, a dam closure, nine road gates, and fronting protection for four (4) existing pump stations.

Project Status

No Federal funds have been appropriated for construction of the Morganza to the Gulf project; however, the non-Federal sponsor is using state and local funds to construct interim features
along the authorized alignment in advance of the Federal project.

Money problems be damned

As posted recently, mud, muscle and money are the three chief obstacles to saving some of south Louisiana. Non-federal sponsorship of this project means state and local money, which is particularly short these days, given that the state faces a $1.6 billion deficit in FY 2016. Nevertheless, coastal officials project spending what sounds like an extremely robust $779 million on coastal projects during the upcoming year, according to a January 28 article by Amy Wold in the Advocate. In the same article, coastal project funding reportedly faces a $2.6 million budget cut for this period, only 0.3% of the $779 million allocation. IMHO, whatever amount is earmarked for the MttG should be cut to help cover the budget cut.

Fastland exclusion from the permitting system

The state coastal management program would normally require a coastal use permit to construct camps such as the ones being promoted in the sign anywhere within the official coastal zone. Unfortunately, however, once coastal landscape is ‘protected’ behind a levee, it magically turns into ‘fastland’ that doesn’t require such a permit. To add insult to injury, structures constructed on such ‘protected’ land presumably become eligible for the National Flood Insurance Program (NFIP) that was recently liberalized, ironically with the help of our conservative delegation in DC. This gives the owners of camps built in harm’s way the assurance that American taxpayers will bail them out when the levee fails during a storm.

In other words, forget the hype about building hurricane protection for existing residents of Houma and the surrounding area. Forget the assurance that the Morganza-to-the-Gulf project would not incentivize development behind the levee.

Alienation of public resources

It has been estimated that the MttG will either destroy or compromise the function of 140,000 acres (almost 220 square miles) of coastal wetlands, a far larger swath than is projected optimistically to be restored any time soon by the coastal program. The recent post on the Public Resource Trust Doctrine would seem to preclude such an action but that ignores the power of politics.

The bottom line is that potential development is partly what’s driving this $11 billion dollar MttG boondoggle, which represents a serious moral hazard to thousands of folks who naively feel protected by a seawall.

One of the issues that irks me most about the MttG is the fact that three national and two local environmental groups are notably loath to mention, let alone oppose the project. Once again these Silent Ecolambs are: The Environmental Defense Fund (EDF); the National Wildlife Federation (NWF); the National Audubon Society; the Coalition to Restore Coastal Louisiana (CRCL); and the Lake Pontchartrain Basin Foundation (LPBF).

They each deserve public scorn for their shameful dereliction of responsibility.

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  1. I just learned the MttG was modified in 2013. The levee is now 98 miles long. Environmental structures now number 23;that is an improvement, but I have serious doubt that will be enough to replace fisheries immigration and emigration that currently occurs. I am trying to get more details.

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  3. Kelly Haggar says:

    Just because something is exempt from La’s coastal permitting system does NOT mean it is exempt from permitting. The Corps can grant a PGP (programmatic general permit) for up to 3.0 ac of wetland impact within the CZ but only if La does not exempt the project. In other words, if you are Sec 404, then you one or the other permit – – state or federal – – if you are in wetlands.

    And s S/D is not going to be a single camp under either set of regs. You can’t “piece meal” no matter how small the impact is on any given lot. Any feature which is required as part of “single camp” must be included in that application or it won’t qualify as a “single and complete” project.

    So there’s a whole host of reasons (this little note barely scratches the surface) why building this levee will NOT somehow avoid the permitting system.

    And that’s ignoring the pending rule re-defining what’s a wetland and what’s jurisdictional . . . which everyone can plan on being in court (or Republican budget fights) for what could easily be years. Think back to Bennett Johnston and the 1989 joint federal manual or the current bar on Modified Charleston/M2 included in the Cromulous Obama signed on Jan 3rd.

    Of course that’s ignoring MTG on the merits as well.

    • Kelly-
      Why don’t you draft a guest post on the legal complexities, contradictions and idiosyncrasies of the permitting process in coastal Louisiana, targeting a lay audience unfamiliar with the fine points of jurisdictional wetlands, Sect. 404,, coastal use permits, takings, the Public Trust Doctrine, etc. If you can accomplish that in 1,500 acronym-free words or so I’ll be glad to post it. If you’re interested send me a draft to my email address at leonardbahr@gmx.com.
      Len

      • Kelly Haggar says:

        Both the “1,500 words” and the “acronym-free” challenges would be formidable on any one of those five topics.

        Thanks for the offer but I’ll have to let this one perk for a bit. I’m really skeptical I can do justice to any single topic in 1,500 words.

        But I’ll try this – I’ll send you something I wrote on jurisdiction for the SWS before I went to law school. Perhaps that might be a good start.

        There’s also the “Law and the Coast” PPT I first showed to the South Central Section of the GSA in 2011. (Andy Nyman saw both mine and Kathy’s Goose Point talk during that convention.)

        I’m also thinking about a series of Corps slides since 2001 as they explored the reach of their jurisdiction.

        OTOH, much of that is irrelevant to your main coastal issues focus since your areas of concern all touch the Gulf. On those questions, which are also tied into the public trust doctrine, “ebb and flow” triggers Sec 10, not Sec 404.

        So, let’s see whatever that pending law review article about ownership after Phillips has to say before you and I stir that pot again.

        • Sounds good. I didn’t know there was a pending lawsuit based on the Phillips case. But then there’s an awful lot I don’t know about the law and the coast. BTW, 1,500 words is not sacred. I just don’t like to test the fortitude of readers.

          • Kelly Haggar says:

            It’s a pending law review article, not a suit. So few law review articles ever make a difference in the real world that the US 1st Cir once held a conference with the big name Ivy League schools to examine why that was so.

            OTOH, an apt law review article often highlights an issue and at least gets people talking about some topic.

            Start to put a few billion on the table an a crowd will gather . . . .

  4. Jim Rives says:

    Len, it’s been a while since I looked at MTTG, but as I recall, the project design had openings for tidal exchange which were supposed to be closed only in the event of oncoming storms. This element of the project was incorporated in order to maintain tidal exchange within the protected areas, so, if the project is built with said openings, the areas inside the levee would not be fastlands pursuant to the Louisiana Coastal Resources Program.

    From the Rules and Procedures for Coastal Use Permits:
    Fastlands?lands surrounded by publicly-owned, maintained, or otherwise validly existing levees or natural formations as of January 1, 1979, or as may be lawfully constructed in the future, which levees or natural formations would normally prevent activities, not to include the pumping of water for drainage purposes, within the surrounded area from having direct and significant impacts on coastal waters.

    Thus, projects within the levee system would not be exempted from coastal use permitting because of the “fastland exemption,” but they could be exempted for other reasons. It should be noted that the construction of an individual house or camp is exempt from coastal use permitting, but a housing development is not. Basically, if MTTG is built with tidal exchange openings, coastal use permit jurisdiction over activities inside the protected area will be the same as it is now. What will change is that the political pressure on the permitting agencies to approve development projects in the area will be more difficult for them to withstand. The state Office of Coastal Management is not the only coastal use permitting authority in the project area. Terrebonne Parish has an approved local coastal program and, consequently, has coastal use permitting authority over many types of coastal uses, particularly residential-type uses.

    The fastland exemption is not magic; it is law. It may be unpopular with some coastal constituent groups, but it is part of the State and Local Coastal Resources Management Act. Parishes with approved local programs are required to use the same fastland definition as the state.

    • Thanks, Jim-
      You’re as authoritative a commenter as I can imagine in the byzantine world of coastal use permitting. Therefore, your uncertainty about some of the consequences of constructing this massive project point up how difficult it is for a lay person to understand what’s at stake.
      I assume that the huge footprint of the project levee would require mitigation so I wonder what wetlands are supposedly being preserved or restored to fulfill this permit condition.
      You’re correct that the project design includes gated openings for tidal exchange but 23 gates distributed over 98 miles of levees could never compare with the natural condition. That means that almost 220 square miles of wetlands would be deprived of their estuarine function. This is classic marsh management, which has been totally discredited by Louisiana scientists. Damaging that much wetland area could obviously never be mitigated and I’m sure it was never envisioned.
      Len

      • Jim Rives says:

        Len:

        My uncertainty about the regulatory aspects of MTTG is based upon fading memories after almost 6 years of retirement, not because I wouldn’t understand the consequences of the project if I were reviewing an updated project file. Also, it is possible that the project has been modified since the last time I reviewed it. My point was that if there are openings in the levees, the enclosed area would not be fastland, and that coastal uses within it would not necessarily be exempt (they could be exempt for other reasons). As for the MTTG project itself, if the Corps constructs the project, it is exempt from coastal use permitting, but the Office of Coastal Management still has the ability to influence the project via the federal consistency provisions of the national Coastal Zone Management Act. Some elements of the project have already been constructed by the state, and those elements were subject to coastal use permitting.

        • Jim- I wasn’t questioning your understanding but rather the difficulty for the public at large to follow the nuances of the permitting process, e.g., the shared responsibility of the corps and the state. You may remember my longstanding frustration that coastal management and restoration were never effectively integrated, which I believe was intentional.
          On a related subject, do you know whether the office of coastal management still reports annually on the net wetland acreage supposedly lost to development and gained by mitigation?
          Len

          • Jim Rives says:

            I don’t know if the reporting of mitigation versus impacts is still done, but I assume so. The OCM report on that subject was (is) one of many DNR required performance indicators. All of the executive branch agencies are supposed to develop, and required to report, their performance indicators to the Legislature on a quarterly basis. Agencies must get approval from the Legislature to change or delete them. Theoretically, the Legislature is assisted in its budgeting process on the basis of agency performance as reported by the performance indicators.

            • Isn’t the agreement to keep the local cost share for CWPPRA projects to 16% contingent on reporting no net loss from wetland permits?

              • Jim Rives says:

                That is done by a federal review team in a process that is independent of the state performance review process. I recommend you ask the Lafayette USFWS for that information, which is reported to the US Congress. The match is 15% not 16%.

  5. The project is an anvil around the neck of the coastal plan, since any infusion of money – federal (not likely), state, BP – will raise the question of how much will be spent on MttG. However much it is won’t be enough – the cost of the project exceeds what La is likely to get in BP funds. The cost is also a reflection of the alignment that the parishes and state insisted on – the southernmost option, including sections built across open water, that will be more expensive to build, maintain, repair.

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