Canals, Community, and Coastal Permits: Overcoming Inadequate Remedies for Erosion Within the Barataria-terrebonne National Estuary

• Publication year: 2021

Canals, Community, and Coastal Permits: Overcoming Inadequate Remedies for Erosion Within the Barataria-Terrebonne National Estuary

Brandon Naquin

CANALS, COMMUNITY, AND COASTAL PERMITS: OVERCOMING INADEQUATE REMEDIES FOR EROSION WITHIN THE BARATARIA-TERREBONNE NATIONAL ESTUARY

Abstract

The Barataria-Terrebonne National Estuary has lost over 934 square miles of land since 1932, causing a mass exodus of communities within the estuary, including the Biloxi-Chitimacha-Choctaw tribe of Isle de Jean Charles. Though some of this erosion can be attributed to rising sea levels and natural subsidence, scientists now realize that the majority of this loss has been caused by human development. Specifically, navigation and pipeline canals dredged by the oil and natural gas industry are alleged to be responsible for as much as 89% of all land lost within Louisiana before 1983. This ongoing land loss has led to numerous attempts to hold developers liable for the damage, but the Louisiana Code does not support non-adjacent erosion claims under theories of tortious nuisance, nor can plaintiffs succeed as third-party beneficiaries from the licenses and permits issued to developers. Federal coastal legislation—sometimes used as a last resort—is similarly ineffective in land loss suits by individual litigants.

Though some recent federal decisions would support a Fifth Amendment takings claim for non-adjacent erosion to the extent that causation could be proven, myriad hurdles stand in the way. A six-year statute of limitations on takings claims would prevent most successful claims, and the 10,000-mile network of canals in Louisiana would preclude practical causation determinations. Worse, the damages would be limited to the land actually taken: a few feet of property in most instances. Further, compensating a landowner for eroding shoreline does nothing to mitigate future erosion, nor does it combat the threat that sea level rise might claim these coastal communities even before the land erodes from beneath them.

Coastal communities suffering from land loss frequently condition coastal development permits on impact fees that go to wetlands restoration funds. This Comment proposes that these coastal impact fees be drastically elevated to include mandatory contributions to a relocation fund for refugees of coastal land loss. Such a fund would be an adequate remedy for those unable to undergo the extensive causation burdens of viable takings claims and for whom claims in tortious nuisance and contract can provide no relief. Most importantly, it would

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place the cost of relocation on those accountable—oil and natural gas companies—instead of taxpayers.

Introduction.............................................................................................665

I. Canals and Land Loss: History and Background..................668

A. Overview of Navigation and Pipeline Canals in the Barataria-Terrebonne National Estuary ................................................... 670
B. Origin and Utility of Canals in the Barataria-Terrebonne National Estuary....................................................................... 672
C. Canals and Coastal Land Loss ................................................. 674
D. The Limited Scope of Federal Coastal Regulation over Canal-Induced Erosion ........................................................................ 678

II. Legal Implications of Canals.....................................................680

A. The Unavailability of Tortious Nuisance to Remedy Canal-Induced Erosion........................................................................ 681
B. The Inadequacies of Remediation Through Contract............... 684
C. The Inadequacies of Coastal Regulation in Mitigating Canal-Induced Erosion ........................................................................ 686

III. Takings............................................................................................689

A. Overview of Fifth Amendment Takings Predicated upon Water Coverage .................................................................................. 690
B. Survey of Erosion-Based Takings Litigation ............................ 693
C. Scholarship on Takings in the Context of Canal-Induced Land Loss ........................................................................................... 697
D. Problems with Takings Jurisprudence: Gradual Erosion and Inadequate Remedies ................................................................ 699

IV. "Taking" It Back: Using Exactions to Remedy Canal-Induced Land Loss.........................................................................701

A. The Constitutional Limitations on Land Use Conditions ......... 702
B. The Constitutionality of an Impact Fee-Based Relocation Fund.......................................................................................... 706

Conclusion.................................................................................................709

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Introduction

This Comment begins where the life of its author began: the Barataria-Terrebonne National Estuary (BTNE). Stretched between the Mississippi and Atchafalaya rivers in South Louisiana, the BTNE encompasses 4.2 million acres covering all or parts of sixteen parishes.¹ To advocates of America's wetlands, the BTNE is a paradise for ecological diversity, a treasure trove of natural resources, and a refuge for diverse cultures and indigenous tribes.² Though long famous for its recreation and tales of the pirate Jean Lafitte,³ the BTNE achieved national significance in 1990, when Congress created the Barataria-Terrebonne National Estuary Program (BTNEP) as part of the National Estuary Program.⁴

Though BTNEP and similar organizations serve as environmental stewards and engineers of restoration, their efforts are not enough. For every acre that Louisiana reclaims, many more are lost to the tide.⁵ Estimates fluctuate, with one supreme court opinion stating that natural environmental factors such as "[s]oil compaction, sea level rise and recurrent storms are destroying approximately [twenty to thirty] square miles of Louisiana wetlands each year."⁶ To counteract Louisiana's massive loss of wetlands, "the state would have to churn out a hundred and eighty-six acres every nine days,"⁷ but these results and their land-loss predicates vary widely parish-to-parish and basin-to-basin,⁸ requiring nuanced and particularized solutions. For example, the Terrebonne

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Basin lost more than 30,000 acres of wetlands from 1932 to 2016, whereas the Atchafalaya Basin gained 4,000 acres of wetlands in the same time frame.⁹

Land loss fluctuations are often the result of innumerable complex factors, such as natural erosive processes, tropical storms, hurricanes,¹⁰ canal dredging, and even nutria.¹¹ Levees along the lower Mississippi River also prevent the perennial flooding that had once carried sediment necessary for soil accretion and land growth.¹² Though "land formed by river sediments naturally subsides and sinks over time as part of the delta cycle,"¹³ this veritable straight-jacketing¹⁴ of the Mississippi Delta has resulted in dramatically increased, unnatural subsidence due to the "elimination of riverine input to most of the coastal zone."¹⁵ Laudable attempts at rebuilding the Terrebonne Basin are projected to

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take years to complete and decades to effectuate significant results, leaving little recourse for the communities whose land is disappearing beneath their feet,¹⁶ particularly the residents of Isle de Jean Charles.

In 2016, the U.S. Department of Housing and Urban Development granted Louisiana $48.3 million in Community Development Block Grant funds to help resettle the tightly knit community on Isle de Jean Charles.¹⁷ Inhabited since the early 1800s, the Island is a coastal fishing village resting deep in the BTNE, nearly sixty miles southwest of New Orleans.¹⁸ In the 1950s, the Island encompassed 22,400 acres.¹⁹ It now sits at a paltry 320 acres,²⁰ each day shrinking to the relentless tide. In fact, "the surrounding wetlands are so compromised that even a strong south wind combined with a high tide will flood the only roadway linking the [I]sland to civilization,"²¹ the neighboring fishing village of Pointe-aux-Chênes, where many of the Island's descendants now reside.²²

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However, the narrative regarding sediment deficiency's role in land loss is rapidly changing. Recent scholarship has established that the 10,000-mile network of navigation and pipeline canals, constructed primarily for the oil and natural gas industry, has played a significantly larger role in land loss than previously indicated, with one study alleging that industrial canals are responsible for as much as 89% of all land lost in Louisiana prior to 1983.²³ This comment shows that there are no adequate, existing remedies at law to address such massive land loss stemming from industrial canals, and land loss victims would benefit from a legislative solution in the form of a coastal impact fee-based relocation fund.

Part I of this Comment examines the history of navigation and pipeline canals in coastal Louisiana, specifically within the Barataria-Terrebonne National Estuary. It lays out how canals proliferated throughout the coast without regulation, eventually becoming a network of 10,000 miles, shredding estuaries and causing the mass exodus of coastal communities, such as the Biloxi-Chitimacha-Choctaw tribe of Isle de Jean Charles. Part II of this comment analyzes the inadequacies in three different remedies at law: tortious nuisance, a theory of third-party beneficiaries from licenses and permits issued to developers, and citizen suits under the Clean Water Act (CWA). Part III argues that litigation following Banks v. United States would support a successful Fifth Amendment taking claim in the context of canal-induced erosion to the extent that causation can be proven. It...