A Whole New Ballgame: Coastal Restoration, Storm Protection, and the Legal Landscape After Katrina

• Author: Mark Davis
• Position: J.D., M.L.T, Senior Research Fellow and Director, Institute on Water Resources Law and Policy, Tulane University, School
• Pages: 419-441

Page 419

Prior to Hurricanes Katrina and Rita in 2005, it was already clear that the collapse of coastal Louisiana, which had seen roughly 1.5 million acres of coastal wetlands converted to open water, was not just an environmental problem but a matter vital to the protection and survival of the region. The storms, which claimed another 217 square miles of land, put the role of coastal wetlands and barrier shorelines as vital components of hurricane defense into stark focus. The physical, cultural, and economic landscape has been transformed and is now the subject of intense federal, state, and local efforts to recover from the storms and chart a new course for the future. Not unexpectedly, the focus of the recovery planning has been on the physical landscape of the coast. How much land was lost? Where can levees and wetlands best be built and maintained? How and where should communities rebuild?

That focus is understandable and important, but it is incomplete. There is another dimension, another landscape that must be dealt with if the full range of recovery opportunities and constraints is to be understood. I am speaking of the legal landscape. Quite simply, Louisiana's coastal lands and waters are not a blank canvas just waiting to be painted with a new generation of programs and projects. They are largely under the control or jurisdiction of a number of public and private players who are charged with operating or managing those resources for certain specific purposes such as navigation, fresh water supply, fisheries, oil and gas development, or flood protection. The laws and policies that drive the management of those coastal resources do not change or go away simply because new plans and expectations have arisen. Accordingly, it is as vital to have a firm grip on the legal landscape that shapes resource management decisions as it is to understand the ecological and geopolitical landscapes. They are Page 420 all equally real. Just how real and how important is the subject of this article.

I A Brief History

Coastal Louisiana is a very special place. Formed directly or indirectly by the Mississippi River over thousands of years, the nearly four million acres of estuaries, wetlands, and barrier shorelines that came into the possession of the United States in 1803 have been viewed variously as a wasteland and a treasure. To be sure, this netherworld between terra firma and water has been a challenging place to live and work, but it has also been an area of central importance to our nation's strategic, commercial, cultural, and ecologic interests. It is no stretch to say that geographer Peirce Lewis' description of New Orleans as a place that was "impossible but inevitable"¹ could apply to many of the human activities in coastal Louisiana as a whole. But coping with the challenges presented by America's greatest river and a naturally dynamic coast was not just a matter of science and engineering; it required a framework, a legal framework, to set it all in motion. Indeed, the very founding of New Orleans was an act intended to support France's legal claim of sovereignty over the Mississippi River and much of the central portion of what was to become the United States. Since then, virtually all of the management or mismanagement of the waters and wetlands of this region has occurred under the color of law, both state and federal. Those laws have governed the ownership, use, and management of our lands and waters and in the process have shaped the Louisiana we have inherited. It is no less true that they will now, just as surely, either enable or constrain the plans being drawn for the future.

Some of these laws are obvious, such as those that define public and private property rights, mandate environmental protection, or that authorize the specific undertakings like levees or navigation projects. Some are less obvious, such as those that control the duties and purposes of institutional actors, for instance, Page 421 government agencies or private corporations. Whatever the case may be, it has been a legal regime that has driven and controlled the engineering, use, and exploitation of our coastal resources in the past, and that will continue to be the case in the future. As obvious as that last point may be to lawyers, it has been anything but in the realm of coastal restoration planning and hurricane protection. It has repeatedly been the case that the importance of understanding the legal side of coastal stewardship and storm protection has been recalled only after trouble was already at hand.

Unfortunately, law has been the junior partner of science, engineering, and politics when it has come to planning for the effective stewardship of Louisiana's coast and the protection of its communities. To be sure, there have been notable exceptions, such as the limited authorization of the state to negotiate the ownership of minerals on reclaimed coastal lands² and the constitutional amendments conforming Louisiana takings law with federal law for the purposes of coastal restoration and storm protection.³ By and large those exceptions prove the rule though, since they were all catalyzed by some significant event, such as an enormous judgment against the state or the prospect of litigation.⁴ As understandable as that may be in any specific case, the overall effect has been that state and federal laws (and their attendant policies) have done more to constrain-rather than facilitate- effective coastal conservation and restoration and hurricane protection efforts. Hurricanes Katrina and Rita provided the final proof of such constraint.

In many ways this comes as no surprise. After all, there is an inherent conservatism in the law that by design is intended to regulate the activities and relationships of society in a predictable and orderly fashion over time. Add to that the fact that most of the people working to plan and carry out the state and federal coastal conservation, restoration, and flood protection efforts are working for institutions with prescribed missions, authorizations, and budgets and whose job it is to "follow the law." It becomes easy to Page 422 see how the law, unlike science and engineering, comes to be seen as largely immutable-something that is just there. In calmer times that may be fine, but in times of trial, like these, one finds that laws do not always define the public interest and, indeed, can frustrate it.

An example of this frustration is the case of the Mississippi River Gulf Outlet (MRGO). The MRGO is a federal navigation channel that was dug through the swamps and marshes southeast of New Orleans to afford a shorter route for maritime traffic servicing the Port of New Orleans. Unfortunately, the benefits touted for the project largely failed to materialize, while the negative impacts of the project, wetlands loss, and the exposure to storm damage were delivered in spades. For years a growing chorus of voices called for the closure of the channel and the rehabilitation of the landscape. A substantial amount of time, energy, and money was spent discussing the science and engineering closure options, yet nothing happened. Even after Hurricane Katrina, to the astonishment of many, the Corps of Engineers continued to assume the MRGO would continue to be a feature of the landscape.

There was actually a very good reason for that assumption. The MRGO would remain a feature of the physical landscape because it was a feature of the legal landscape. Congress had told the Corps to construct and maintain the channel, and as long as it was legally authorized, it was its duty to plan around. It was not a question of science, engineering, public preference, or even good sense. It was a matter of law. Until that was understood and addressed, those asking the Corps to contemplate a future without the MRGO were asking it to do something it did not believe it could do legally. That linkage was finally made by the Governor's Advisory Commission on Coastal Protection, Restoration, and Conservation, which ultimately led to Congress directing the Corps to develop a closure plan for the MRGO.⁵

The MRGO is not an isolated situation. Increasingly, the ease or difficulty of saving Louisiana's coast and protecting its communities will turn on just how tailored our laws are to making our best plans affordably implementable. Page 423

To some degree, the state has begun to recognize this need. Since the storms of 2005, the state has moved to integrate its coastal conservation and restoration efforts with its storm and flood protection efforts.⁶ It has also moved to consolidate, to a greater extent, local levee boards in the greater New Orleans area. Indeed, the state's recently completed Comprehensive Master Plan for a Sustainable Coast (April, 2007)⁷ explicitly recognizes that the future of the state as a cultural, economic, and ecologic entity depends on the integration of structural flood protection, wetland and barrier shoreline restoration, and nonstructural measures such as land use controls. The Master Plan and the corresponding federal effort led by the U.S. Army Corps of Engineers are laying the foundation for a vast public works and resource conservation effort with a price tag in the tens of billions of dollars. There will be three main aspects to those efforts: (1) structural flood protection, (2) wetland and barrier island restoration, and (3) nonstructural flood protection.

The first two categories will involve public works on a large scale. They will also take years to authorize, design, and build. The third category, nonstructural protection, has garnered much less attention but can make an appreciable difference in the...