Administrative and Environmental Law Seminar
Richards - Spring 2013

The Use of Mississippi River Sediment for Restoration Projects in Louisiana - Russ J. Joffrion, PE, Engineer Manager, Coastal Protection and Restoration Authority Engineering Division

Legal section project: Admin. & Env. Lit. Guide

http://www.nola.com/environment/index.ssf/2013/04/louisiana_coastal_scientists_r.html

http://www.fox8live.com/video?autoStart=true&topVideoCatNo=default&clipId=8763015

http://theadvocate.com/home/5600530-125/new-diversion-process-planned-for

http://thelensnola.org/2013/04/10/new-research-indicates-mississippi-river-diversions-could-harm-marshland/

Check back – we will revise this as questions come up.

Each project should have a table of authorities, i.e., a list of the statutes, regs, and cases that you rely on. You do not need to list each page the material is used on, but if you use Word’s table of authorities feature, you can automate this.

Each project should have a table of contents. Again, if you use Word headings, you can do this automatically.

I want to see a draft from each group before exams start, so that I can review and comment in plenty of time for you do to revisions and additional drafts if necessary. I will review drafts as soon as you are ready to submit them.

Each project should have an explanatory memo, unless the project itself is in memo/report form.

The BS version of the coastal restoration story

The main site – this is the site run by the co-opted NGOs.

http://coastalscience.noaa.gov/news/coastal-pollution/river-diversions-for-restoring-louisiana-wetlands-will-require-sediments-say-scientists/

I contacted Captain Ricks regarding information on scientific studies about toxic substances being released from the diversions. Here is our correspondence and his response:

Kellyn Elmer <kellynelmer@gmail.com>	Apr 2 (2 days ago)
to george15fish, Jennifer

Dear Captain Ricks,My name is Kellyn Elmer, and I am a student at the LSU law center. Sean McCallister gave my class your information stating that you were very helpful with the project that we are doing regarding the diversion projects.

My question for you is if you have any scientific data regarding the types of toxic chemicals that are released from the diversions into the marsh lands?

Thank you for your help!

Sincerely,
Kellyn Elmer

George15fish@aol.com	Apr 3 (1 day ago)
to me

Dear Kellyn,

    I read somewhere about Hydrogen Sulphide and Benzyne, but I have to look up where I saw It. I will try to find it and let you guys know. I can’t tell you how much I appreciate you all getting involved. I’ll be in touch.

Capt. George Ricks

GET-AWAY CHARTERS

(985) 630-2923

George15fish@aol.com	Apr 3 (1 day ago)
to me

Dear Kellyn,

    Here’s a link to a study released in 2012. It may help. I’m still looking for more, but this may help a little. It seems one of the biggest pollutants in the river are Nitrates, “fertilizers” and some pesticides used in the farming upstream. I’m still digging. Thanks,

Capt. George Ricks

George15fish@aol.com	Apr 3 (1 day ago)
to me

Kellyn,

    Here’s a link to where I got a lot of information. It was a study done with the help of some of your biology colleagues at LSU. It seems Ammonium is a chemical found . How hazardous it is I don’t know. This study shouls help. Please keep me posted of your progress, and I’ll help anyway I can.

Capt. George Ricks

https://biotech.law.lsu.edu/blog/2011-diversions-Lessons-Learned-Final.pdf

We contacted Captain George Ricks, who runs Getaway Charters and has an interesting blog that may help us in our attack on the diversion (Link to blog –http://www.rodnreel.com/getaway/index.asp?pg=fishing_reports).  He was very receptive to our questions and he said that he would like to work in conjunction with us regarding our project.

His e-mail response:

“Dear Mr. McCallister,

Attached is an example of what a petition in this court should look like.  Mine concerns compelling an SEIS of the effects of runoff pollution in the river water on the marsh flora, but you could easily substitute in your law for the clean waters act or the ESA.  The important thing is getting the form right.

PETITION

Saw this Nola.com article as I was googling for information today. Thought it was interesting and shows that more people are paying attention to the diversion issue. Possible plaintiffs?

http://www.nola.com/outdoors/index.ssf/2013/03/caernarvon_diversion_moving_fi.html

(Posted for Paige)

I spoke with a really nice person, Frederick Wallace, at the NO Corps office. He also stated that the Corps does not need to have a permit for its federal projects, but it does need to do all the preliminary stuff, such as the EIS. This is because the army corps is the permitting agency. He said that the other diversion, Davis Pond, has a permit bc it might have switched to state control. If the state is overseeing these diversions, it needs a permit.

He was very receptive to our issues, and I think he would be a great resource to get more info from. I am going to try to contact him today or tomorrow, does anyone have any questions or concerns for him? He said that he is getting more FOIA request regarding these wetland projects since the BP oil spill, now that there are more people doing testing in these areas.

Please email me if you want me to ask anything specific. My Internet at my house is down, otherwise I would be using the blog.

1) Any luck in finding an endanged species that would be effected by our diversion?

2) How about by any of the proposed diversions?

3) It is time to expand beyond just endangered species to include any legally protected wildlife that could support our efforts to close or prevent diversions.

What about the fish habitat that you mentioned in class – what are the legal implications of such as habitat?

What about effects on oysters and shrimp?

Who would have standing to bring these claims?

What are all  the legal theories you can use?

4) What is the long term prospects for endangered species?

Are there any in any of the wetlands in eastern LA?

What would be impact of destroying most of the wetlands, as will happen if the levees are built all along the coast?

The legal research group will work on finding model legal documents on your issues as you develop them. Your primary job will be to match up the law with the science from the articles and the facts that you collect from the Corps documents and other research. This will take the form of a supporting brief for the legal actions that might be appropriate, including challenges to sections of the EIS, necessary permits, etc.

CWA

1) It looks like the Corps can do its own projects without a 404 permit, as long as they effectively do what the permit requires. What about 402 permit requirements? This is a Clean Water Act permit, and the EPA is the granting agency:

Clean Water Act, Section 402: National Pollutant Discharge Elimination System

This was built a long time before the Unitary Waters Rule – what was the law at the time it was built? Should there have been a permit when the project was built? Is this something that the permit group should be looking for?

2) What about operating the diversion until the Unitary Waters Rule was promulgated? Should that have been permitted?

3) What is your argument for why transferring water to a wetland would not be covered by the Unitary Waters Rule, even if it is left in place?

Interesting post about challenges to the Unitary Waters Rule – as I expected, the 11th does not bind other circuits and there are challanges going on:

http://watchlist.vermontlaw.edu/epa%E2%80%99s-water-transfer-exemption-remains-in-force/

CERCLA

1) What is your CERCLA theory?

2) What is scientific evidence that backs it up?

3) How does CERCLA work for a waterborne pollutant, i.e., is there a permit process?

4) Who has standing to raise a CERCLA issue?

5) Who would be potentially responsible parties (PRPs)?

Both

The legal research group will work on finding model legal documents on your issues as you develop them. Your primary job will be to match up the law with the science from the articles and the facts that you collect from the Corps documents and other research. This will take the form of a supporting brief for the legal actions that might be appropriate, including challenges to sections of the EIS, necessary permits, etc.

1) One resource you can develop will be complaints and other documents from real cases. You can be guided by the issues raised by the other groups.

You can get these as PDFs from Westlaw. I do not know if we can republish them without violating the terms of our Westlaw agreement, but I am checking with the library on that. We can certainly build up an archive that we can use within the law school if posting them is a problem, and we may have an alternative way to get them if Westlaw is a problem.

You can then pull out key boilerplate, such as jurisdictional language, statutory or regulatory language, etc. that can be used to build documents.

These document atoms (boilerplate paragraphs) should be cleaned up and properly referenced if necessary, and then labeled and described so that we can create an electronic file of them. You can certainly use language from filings on Westlaw, even if we cannot republish the entire document.

This is the instruction I have given the other groups:

The legal research group will work on finding model legal documents on your issues as you develop them. Your primary job will be to match up the law with the science from the articles and the facts that you collect from the Corps documents and other research. This will take the form of a supporting brief for the legal actions that might be appropriate, including challenges to sections of the EIS, necessary permits, etc.

You can then build model complaints and injunction petitions for some of the issues raised by the other research groups.

At this point, your team looks like it will be the 404 expert team.

A couple of experts have said that Corps does not have to permit its own projects under 404, but must still follow the requirements, i.e., the EIS and the like:

CWA_Section404b1_Guidelines_40CFR230_July2010

This raises several questions:

1) What is the authority for allowing the Corps to do 404 projects without a specific permit?

2) Are the current diversions Corps projects, or is it someone else’s project that the Corps is building? Does this matter?

A view from our Tuesday guest:

HOWEVER, as I recall, the La DNR was the “proponent” or “applicant” of Caenarvon.  In fact, even if it were a joint CWPPRA-type project, CWPPRA is only a funding and allocation mechanism.  Approved CWPPRA projects go through the same public notice and permitting system as anyone else.

3) Have they met the standards in lieu of  a permit?

4) What should alternatives look like? You might want to look at the fast track EIS for the post-Katrina levee work:

http://sites.law.lsu.edu/coast/2013/03/environmental-report-for-the-inner-harbor-levee-improvements/

Since no one challenged this, we do not really know if it is sufficient.

5) The legal research group will work on finding model legal documents on your issues as you develop them. Your primary job will be to match up the law with the science from the articles and the facts that you collect from the Corps documents and other research. This will take the form of a supporting brief for the legal actions that might be appropriate, including challenges to sections of the EIS, necessary permits, etc.

We will have a visiting wetlands law expert, Kelly Haggar. We will brainstorm with him on the projects and his experience with the  Corps.

I am working on a separate post on structuring the individual group projects in anticipation of our presentations and end of the course. That should be posted by Sunday night.

http://www.nolaenvironmental.gov/CED.aspx

These may contain important info about how the Corps is currently viewing environmental impact.

http://www.nola.com/environment/index.ssf/2013/03/comprehensive_environmental_st.html

Here is the link for an article that discusses the various sportsmen’s groups who want the Caernarvon Diversion closed.

http://www.nola.com/outdoors/index.ssf/2013/03/caernarvon_diversion_moving_fi.html

Quarles v. U.S. ex rel. Bureau of Indian Affairs, Not Reported in F.Supp.2d (2006)

City of Waco v. Schouten, 385 F.Supp.2d 595 (2005)

Reynolds v. Rick's Mushroom Service, Inc., 246 F.Supp.2d 449 (2003)

City of Waco v. Schouten, 385 F.Supp.2d 595 (2005)

I have attached below my memo on the CWA and navigable waterways. Although the jurisprudence is very complicated by a USSC plurality opinion, everything points to Caernarvon being navigable under the CWA (the result that we want). Pretty sure that even the Fifth Circuit is in agreement with everyone else on this issue.

- Eva

CWA Memo on navigable waters

A local endangered species case with documents on westlaw: Schoeffler v. Kempthorne, 493 F.Supp.2d 805 (2007)

EIS:

O'Reilly v. U.S. Army Corps of Engineers, 477 F.3d 225 (5th Cir. 2007)

Boesch, D. F., D. Levin, D. Nummedal, and K. Bowles. 1983. Subsidence in coastal Louisiana: causes, rates, and effects on wetlands. U.S. Fish and Wildlife Service, Division of Biological Services, Washington, DC. FWS/OBS-83/26. 30 pp.

CWA argument summary

Thanks!

Paige and Eva

This is a VERY limited and early outline of the law that we would rely on to compel the Corps to conduct an SEIS concerning the effects of nutrient-rich river water being diverted into the Breton Sound.  The challenge will rely upon authority from the APA, CEQ regs, and precedent from the 5th Circuit and SCOTUS.  There are a TON of other good statements of law from other circuits as well, but I haven’t yet figured out if or where I should use them as persuasive authority.  I will be going through the science that Prof. Richards posted to the blog soon to incorporate their arguments into this document.

-Grant Freeman

SEMINAR MEMO

CERCLA LIABILITY

Sean,
The Caernarvon Diversion, which discharges into the Breton Basin, influences salinities within this basin south of the Bayou La Loutre ridge out to the coastal open waters.  Its influence is not distributed equally across the basin because of various factors with the geography of the landscape (e.g., bayous, canals, spoil banks, etc.), amount of water diverted, and weather conditions probably being the greatest influences.�
There is one known active bald eagle nest just north of the influence area and two nests located on the western side of the influence area.  All nests are believed to have been constructed in the early 2000′s and have produced young; the greatest factor probably impacting these nests are tropical storm events.  Please realize that since 2007 the bald eagle is no longer an endangered or threatened species (was listed when some of the nests were initially built but is no longer listed).
Other than a 1991 report of a West Indian manatee that was temporarily in the influence area we have no other records of any threatened or endangered species found in the influence area.  Also, there is no designated critical habitat for any species in the influence area.

The endangered pallid sturgeon is found in the Mississippi River, however, based on sampling done in the river that portion of the river south of New Orleans appears to have very few of these fish; less suitable habitat within this portion of the river is believed to be the primary reason for the very low number of sturgeon.  There is an ongoing study that will hopefully provide additional information, however to this date most of the data gathered seems to confirm the above information.
If you have any more questions please feel free to contact me.

I emailed some of these to you already. Do not post these to open WWW sites, some of the journals do not allow general distribution.

R. Eugene Turner, Doubt and the Values of an Ignorance-Based World View for Restoration: Coastal Louisiana Wetlands. Estuaries and Coasts (2009) 32:1054–1068.

Christopher M. Swarzenski, Thomas W. Doyle, Brian Fry, and Thomas G. Hargis. Biogeochemical response of organic-rich freshwater marshes in the Louisiana delta plain to chronic river water influx. Biogeochemistry (2008) 90:49–63.

Michael S. Kearney, J. C. Riter & R. Eugene Turner, Freshwater river diversions for marsh restoration in Louisiana: Twenty-six years of changing vegetative cover and marsh area, 38 Geophysical Research Letters (2011)

Tweel, Andrew W, and R Eugene Turner. “Watershed Land Use and River Engineering Drive Wetland Formation and Loss in the Mississippi River Birdfoot Delta.” Limnol. Oceanogr 57, no. 1 (2012): 18–28.

Turner, R Eugene. “Beneath the Salt Marsh Canopy: Loss of Soil Strength with Increasing Nutrient Loads.” Estuaries and Coasts 34, no. 5 (2011): 1084–93.

RE Turner, On the cusp of restoration: science and society, Restoration ecology (2005)

Christopher M. Swarzenski, Surface-Water Hydrology of the Gulf Intracoastal Waterway in South-Central Louisiana, 1996-1999, U.S. Geological Survey Professional Paper 1672.

Aransas Project v. Shaw, 13-40317, 2014 WL 2932514 (5th Cir. June 30, 2014)

Gallaspy 3-11-13 (1)

Katelin and I’s primary issue concerns the possibility of endangered species in the wetlands and the negative effects the diversion has or may have on their habitat.

If there are endangered species in the wetlands:

1. Has the diversion adversely affected the species in the past and the present?
2. Will the species continue to be negatively affected in the future as the wetlands continue to disappear?

While our independent research has so far been inconclusive in answering those questions, we have reached out to members of our community for help.  First, we contacted Dr. Sammy King, a coastal research professor at LSU.  While he informed us that he did not have the answers to our specific inquiries regarding the Caernarvon Diversion, he did refer us to two people who may be able to help: Ms. Megan LaPeyre, who has personally conducted research at Caernarvon, and Ms. Debbie Fuller, who is with the USFWS Ecological Services Office.  We have made attempts to contact them and are awaiting their responses.

Hi, Jennifer.
I’m the one who actually contacted the Corps of Engineers regarding these permits. This project was a group effort! I’d be happy to meet with you talk about it in detail, however, I could easily sum up my efforts here. I first contacted the Army Corps of Engineers District Office in New Orleans in efforts to retrieve copies of the permits for these diversion projects. I started by contacting with the Corps of Engineers New Orleans District Library and the librarian transferred me to the permit division. After speaking with the permit division representative who answered my call, he told me that I’d need to speak with Richard Boe (504-862-1505, Richard.E.Boe@usace.army.mil), also in the permits division, and then he transferred my call. After leaving a voicemail message, Mr. Boe returned my call and I explained what I was looking for. He sent me the Feasibility Study from Caernarvon project, but told me that the permits for Caernarvon and Davis Pond were essentially lost because no one in that office knew where to locate copies of them. I probed a little further asking “so you guys don’t have any copies of these permits anywhere?” his reply was “no, we can’t find them,” but as I mentioned he offered to send the Feasibility Study and I said of course we’d take any documents that he had available. That’s how I managed to get the Feasibility Study.

In efforts to try another avenue, I also corresponded with the Vicksburg District Corps Office:

David Lofton
Chief, Permit Section
Regulatory Branch
Vicksburg District
(601) 631-5147

After I described the projects and the permits I needed, Mr. Lofton informed me that he didn’t know of these projects and asked could I send him a map depicting them. I sent a description of the location of the projects that I found on a Corps document and he then stated that because these diversion projects, Caenarvon and Davis Pond, were located near Plaquemines Parish they are under the territory New Orleans District Corps Office and to contact them. I explained to him once again, as I had originally done, that the New Orleans District Office could not locate copies of the permits and that is why I contacted Vicksburg to see if they had copies given that the diversions were at least partially federally funded. He wrote back once again to contact New Orleans and never returned my voicemail messages.

If you need further information, please let me know and as I mentioned, I’m happy to meet with you if you would like.

Best,
Lisa

Lisa A. Goodman, JD, MLIS
Associate Director for Public Services
LSU Paul M. Hebert Law Center Library
1 East Campus Drive
Baton Rouge, LA 70803
(225) 578-4952

Hi all,

We just sent in a FOIA request, I wasn’t sure if anyone had done that yet. I will post the response when it comes in. Thanks!

Paige, Kellyn and Jennifer

Sammy King –  http://www.rnr.lsu.edu/people/king/default.htm

Endangered species folks – get in touch with him and see if knows of any in the wetlands.

I have changed the class blog settings to send an email notification for posts to the blog.

http://ccweb.law.lsu.edu/Panopto/Pages/Sessions/List.aspx?folderID=39edaaf2-f5f6-48da-b957-753f1bd62bdf

This is a recording of the class on March 5. Let me know if you have trouble viewing it. Please view this if you were not in class.

http://www.climatewatch.noaa.gov/video/2012/windells-levee-protecting-a-coastal-community

http://www.climatewatch.noaa.gov/article/2012/thriving-on-a-sinking-landscape
Considerations and Effects of Changing Elevations and Sea Level Rise on the Northern Gulf-Coastal Louisiana

Kiahhn and I are the cultural sites group. I took National Historic Register Sites in the area, and hers on archaeological sites should follow shortly. I am attaching a document with the information that I found, but the general idea that appears to be that although there is a statute that states that when Historical Register sites are involved the Advisory Council on Historical Preservation should be involved in the decision making, not a single case has offered any remedy for a violation.

National Historic Register Sites

Below is a document summarizing the effects that the diversion plans were predicted to have on the nearby archaeological sites. As predicted, no good news to be found.

Archaeological Effects

- K. Jackson

Tabulated index of all documents and locations.

-Grant Freeman

FULL index for September 1984 Caernarvon Diversion Report (#3)

This is a memo about attacking existing EIS and forcing SEIS (supplemental EIS).  It goes over some basics on the standard of review and what the process is for showing that a project should be enjoined.  Essentially, the idea is to prove that the Corps and the State have made significant uninformed decisions, not unwise decisions.

-Grant Freeman

Attacking EIS (2)

Kellyn and Jennifer are looking for laws under which we can identify problems with the diversion.

We are looking at CERCLA, a statute for the regulation of particular kinds of hazardous wastes, including lead.  If there is no permit, then the diversion could be said to dump unauthorized hazardous waste into the wetlands.

In our materials, in the “fisheries” section, there is a reference to heavy metals being harmful to the fisheries, along with pesticides and nutrients.

The passage points to more extensive info about these pollutants in Appendix H for water quality.

Which of the documents we’ve reviewed contains appendix H?  We want to get a look at what some of these pollutants are.  If it’s not in our documents already, we’ll have to find it another way.

Thanks, everyone.

J&K

For some of us, this is not news:

http://theadvocate.com/home/5247778-125/la-coast-facing-grim-reality

I am attaching a memo on the permit process for Corps permit process, with comments added in highlight.

River Diversions: Geologic Boundary Conditions and Other Considerations, By Dr. Harry H. Roberts Coastal Studies Institute Louisiana State University

Michelle Humphries
Reference Librarian
LSU Law Center
1 East Campus Dr.
Baton Rouge, LA 70803
225/578-4042 fax 225/578-5773
michelle.humphries@law.lsu.edu

Feasibility Study Volume 1 pages 222-296

(1) What if the study is relying on bad science? Any abuse of discretion issues? – Grant and Justin

(2) Procedure of an EIS, what if there are problems with the original, how can they avoid getting a new one, etc. – Paige and Lenny

(3) What other laws are applicable to this stuff? CWA §404? Dead zone stuff… – Jen and Kellyn

(4) Endangered Species Act, any threatened or endangered species in this area? What if there are? Procedure…- Sean and Katelin

(5) Were any cultural sites affected? Procedure if they were? – Eva and Kiahhn

Alright guys, get creative here, if you find something that may benefit someone else on their search, post it!

Feasibility Study Volume 1 pages 1-75

GP-15 GP-26 JPA2010Fillable GP-5 GP-6 GP-7 GP-11

Group II – Table of Contents

Group 1

Gallaspy
Bello
Penzo
Hughes

Group 2

Freeman
Maybery
Conner

Group 3

Elmer
McAllister
Jackson

http://www.nola.com/environment/index.ssf/2013/01/restoration_task_force_approve.html

Louisiana Coastal Area (LCA), Modification of Caernarvon Freshwater Diversion Feasibility Study December 2009.

A Post-Katrina Assessment of the “Freshwater Diversion to Lake Pontchartrain Basin and Mississippi Sound”

Analysis of Fisheries-Independent Data for Evaluation of Species Distribution Responses to the Caernarvon Freshwater Diversion

Assessing the Effectiveness of Louisiana’s Freshwater Diversion Projects Using Remote Sensing

The Effect of the Caernarvon Diversion on Hurricane Driven Land Loss

The Impact Of The Caernarvon Diversion On Above- And Belowground Marsh Biomass In The Breton Sound Estuary After Hurricane Katrina (from the pro-diversion camp)

Lake Pontchartrain Basin Foundation

Louisiana Coastal Area (LCA), Modification of Caernarvon Freshwater Diversion Feasibility Study December 2009.

Geomorphology and Baldcypress Restoration of the Caernarvon Delta near the Caernarvon Diversion, Southeast Louisiana 2011 Report

2011 Operations, Maintenance, and Monitoring Report for Caernarvon Diversion Outfall Management (BS-03a)

State of the Science Regarding River Diversions

2002

2003

2004

2005

See if you can find the rest.

We will view a presentation on subsidence by Prof. Dokka:

http://ccweb.law.lsu.edu/Panopto/Pages/Viewer/Default.aspx?id=28071ff4-f660-4b3d-9ed7-a2af8461d27c

Read the articles I sent from Moodle. I am re-sending the email

Stopped at 1:10

Location - Caernavron Diversion

Documents as provided by the state

Feasibility Report on Freshwater Diversion·to Barataria and Breton Sound Basins, June 1984.

Feasibility Report on Freshwater Diversion·to Barataria and Breton Sound Basins, August 1984.

Feasibility Report on Freshwater Diversion·to Barataria and Breton Sound Basins, September 1984.

These are the component parts of those three documents:

C19840314-Sediment study

C19840314-Biological monitoring

C19840314-Christmas tree permit

C19840314-Contaminant Study

C19840314-Notes and correspondence

C19840314-Recommendations

This blog requires a login before access, so posts and comments will only be available to the class. However, anything written in electrons can be accessed by hackers, so always assume that nothing is completely protected.

Louisiana Coastal Restoration Authority