Solutions: Attitude Adjustment, Agencies, Legislation, Regulations & Laws, NGOs

WHAT ARE THE SOLUTIONS TO COASTAL EROSION?

 

I.  ATTITUDE ADJUSTMENT.  One of the most important steps toward conserving our wetlands is for individuals to adjust their attitudes toward wetlands' place in society.

Wetlands conservation must become a local, state, and national priority.  The values are so high (as we will discuss later) that traditional approaches to benefit/cost analyses must be abandoned, since it is normally impossible to firmly apply a value to wetlands as accurately as we can for highways, buildings and barrels of oil.  Instead, benefits of conservation must be assumed to be equal to or greater than conservation costs, particularly if we are going to justify saving the wetlands.

Congress must mandate this highest of priorities and insure that all federal agencies treat it accordingly.

 

LET YOUR CONGRESSIONAL DELEGATION KNOW THAT YOU CARE!  DEMAND THAT THEY CARE!

 

II.  AGENCIES AND PROGRAMS RELATING TO WETLANDS ISSUES.  In order to help the wetlands, one must know what agencies are involved in their management and regulation and what major programs exist.  The following is from Wiygul and Clipp (1995).

The U. S. Army Corps of Engineers (Federal).  The Corp has three areas of responsibility:

1. Hurricane and storm damage risk reduction, including Flood control
2. Maintaining navigable waterways
3. Environmental stewardship

They also have recreation as one of their mission targets.  Additionally, they dredge, they build, they reroute, and they control others who fill or dredge.  They co-administer the Clean Water Act’s Section 404 with EPA.

The Environmental Protection Agency (EPA) (Federal).  EPA has many regulations that relate to water quality, and they co-administer the Clean Water Act’s Section 404 with the Corps (they can veto Corps actions).  Their lead office that relates to Louisiana is Region IV based in Dallas. 

Assorted Federal Agencies.  The following Federal agencies interact in a number of regulatory ways regarding wetlands protection and management: Fish and Wildlife Service, Department of Agriculture, National Marine Fisheries Service, and Natural Resources Conservation Service (formerly known as the Soil Conservation Service).  They are all involved in Coastal Wetlands Planning, Protection, and Restoration Act of 1990 (CWPPRA, pronounced quip-ra)  (see below).

Louisiana Department of Environmental Quality (LDEQ), Office of Water Quality.  Regulates the discharge of pollutants into waterways.

Louisiana Department of Natural Resources (LDNR), Coastal Zone Management Division.  This division is concerned with permits for the coastal zone and other wetlands programs as governed by the Coastal Zone Management Act of 1972 (see below).

Louisiana Department of Natural Resources, Coastal Restoration Division.  Is involved in all programs that relate to restoring wetlands, and represents the state in the CWPPRA process.

Parish Coastal Zone Management Programs.  Each coastal parish has such a program which is responsible for developing, implementing, and monitoring the parish’s coastal zone program.

Louisiana Governor’s Office of Coastal Protection and Restoration (OCPR).  Monitors and coordinates agency activities in wetlands projects.  It is the state organization that developed the Louisiana Coastal Master Plan of 2012.

Additional authorities.  Virtually any agency in any and all levels of government that own or use wetlands either have and enforce or follow regulations.  These include the national and state forestry and parks programs, state wildlife & fisheries, port authorities, city sewerage and water departments, and the like.

Parishes Against Coastal Erosion (PACE).  An association of officials from parish governments in Louisiana that are addressing their concerns about the rapid loss of America’s WETLAND. http://www.paceonline.org/

The following programs are very important in wetlands protection in Louisiana:

Coast 2050.  This multi-agency program has developed a vision of how Louisiana’s coastal zone will appear in the year 2050.  There are two groups who developed the program: the federal Louisiana Coastal Wetlands Conservation and Restoration Task Force (composed of most federal agencies and the Governor’s Office of Coastal Activities) and the Louisiana State Wetlands Conservation and Restoration Authority (composed of state agencies).  Coast 2050 is to be accomplished through the Water Resources Development Act at a projected price of $14 billion!

Louisiana Wetlands Conservation and Restoration Trust Fund.  Created by the state legislature in 1989 and funded by oil and gas severance taxes, this trust fund is the source of revenue for coastal restoration projects.  It can be used in conjunction with CWPPRA monies.  LDNR administers this fund.

Coastal Wetlands Planning, Protection, and Restoration Act of 1990 (CWPPRA).  This is also known as the Breaux-Johnston Bill, or simply the Breaux Bill as a tribute to its sponsorship by Senator John Breaux.  It brings in about $40 million per year from taxes on lawn mower gas.  The money can be used for planning or restoration projects (such as barrier island projects, Christmas tree sedimentation structures, a wide variety of simple or complex restoration programs, etc.).  The funds can be used by any government entity, but each program must be co-sponsored by a federal agency.  A panel representing a number of agencies and non-government organizations (NGOs) generate and receive ideas for projects, consider them on their merits and the needs within each of CWPPRA’s nine coastal basins.  To learn how to participate in the CWPPRA process, consult Wiygul and Clipp (1995: 44) or contact the Coalition to Restore Coastal Louisiana.

WE DIDN’T GET WHERE WE ARE ALONE, SO WE NEED LOCAL, REGIONAL, STATE, AND FEDERAL HELP SOLVING THE PROBLEM! 

 

III.  LEGISLATION.  There is a crying need for legislation that truly contributes to the conservation of our wetlands.  In order to have a system that works, legislation must protect wetlands while giving the people who own the wetlands the opportunity to realize a return on their investment.

Policies and regulations that impact wetlands should reflect the new, high priority.

Nonwaterdependent activities (activities that do not require being in or around water - industrial sites, housing, roads, etc.) in vegetated wetlands and on barrier islands should be prohibited.

Waterdependent activities (those activities that must be around water - e.g., boat launches, oil and gas exploration, etc.) should be closely scrutinized; mitigation must be required to replace all vegetated wetlands harmed by human activities.  

We should strive for no-net-loss of these marshes due to human activities.

MAKE SURE YOUR LEGISLATORS KNOW THAT YOU THINK THESE ARE IMPORTANT!

 

IV.  FEDERAL REGULATIONS RELATING TO WETLANDS.

For a detailed discussion of regulations and regulating agencies for the coastal zone, see "Coast Watcher's Guide:  How to Preserve and Protect Louisiana's Wetlands and Coastal Zone" (Clipp, 1995).

The following is a list of some of the major federal wetlands regulations:

Farm Bill of 1990.  Established the Wetlands Reserve Program.  That allows for up to one million acres that are presently in the Conservation Reserve Program being placed in paid 30 year or permanent easements.  These areas must be easily restorable to wetlands.  

Emergency Wetlands Resources Act of 1986.  Promotes cooperation among federal, state, and private resources to work toward wetlands conservation.

Clean Water Act of 1977.  Protects the waters of the United States, defined as those involved in interstate commerce and/or flowing into them, from pollution.  Requires a National Pollution Discharge Elimination (NPDES) Permit.

• Section 404, Clean Water Act.  Regulates the dredging and filling of wetlands.  This has been one of the most powerful tools used by environmentalists in conserving wetlands.  Provides for wetlands jurisdiction being shared by the Corps and EPA.  The so-called Tulloch Rule held that 404 permitting requests covered ditching and dredging in wetlands.  The rule was successfully challenged in 1998 as an unwarranted expansion of 404.  The courts held that ditching and dredging of wetlands do not equal the depositing of dredged or fill materials.

River and Harbors Act of 1899.  Regulates construction (structures), dredging, and filling in navigable waterways.

Regulations pertaining to National Wildlife Refuges and the National Park Service.

Swampbuster.  Swampbuster is a provision of the Food Security Act of 1985.  It prevents farmers who convert wetlands to croplands from having access to any USDA farm programs.  This applies not just to those crops produced on converted wetlands, but to all commodity crops produced by the farmer on any land he/she owns and/or operates.  There are two exemptions:  1) it does not apply to wetlands created by irrigation and 2) wetlands may be farmed during officially declared drought years if the farmer takes no steps to improve drainage.

Coastal Zone Management Act of 1972.  Provides that states may establish and implement plans for coastal management.  In Louisiana, permitting is shared between the Department of Natural Resources and parishes with approved coastal management plans.

Endangered Species Act of 1973.  Protects listed species, their activities, and their habitats.  This is applied in both the private and public sectors.

National Environmental Policy Act of 1975 (NEPA).  The Magna Carta of Environmental Law.  “Requires that any major federal action that significantly affects the quality of the human environment be reviewed to determine the potential environmental impacts.  To complete this review, the federal agency must usually develop an Environmental Impact Assessment (EIA).  If sufficient evidence is found to warrant a further look, and Environmental Impact Study (EIS) is required (the resulting document is called an Environmental Impact Statement, also abbreviated as EIS).  Major federal projects can include private activities in which the government does not act directly but which require a federal permit, such as permits for large-scale dredge and fill activities issued by the Corps.  EISs written under NEPA only identify problems; they don't require that the problems be solved."  (Clipp, 1995)

 

  One of the most powerful movements of the 1990s was President Bush's (that is Bush 41, George H. W. Bush) discussion of "no-net-loss."  This topic was hotly debated and many people questioned whether it focused on no-net-acres-lost or no-net-wetland-functions-lost.  President Clinton said that he wanted to protect wetlands, but he didn’t do much.  President Bush 43 (George W.) did very little.

 

V.  UNIVERSITY-BASED ORGANIZATIONS THAT FOCUS ON WETLANDS.

ByWater Institute, Tulane University.  This is a multifaceted approach to addressing coastal needs, staffed by highly qualified coastal professionals from many disciplines.  They are house in a facility very near the Port of New Orleans office complex.

 

Coastal Sustainability Institute (CSC).  The CSC is a collaborative effort among member universities in Louisiana, each of which has scientists or centers/institutes that focus on wetland studies and restoration.

Louisiana Universities Marine Consortium (LUMCON).  This is the marine lab for all Louisiana universities.  LUMCON has its own staff, but many scientists from various Louisiana universities perform research and teach there.  Its research vessels played a major role in research on the BP oil catastrophe.

Pontchartrain Institute for Environmental Sciences, University of New Orleans (PIES).  This research lab studies many aspects of the ecology and geology of coastal Louisiana.

Loyola University Center for Environmental Communication (LUCEC).  LUCEC has played a continuous and vital role in educating the public about Louisiana coastal issues.

VI.  NON-GOVERNMENT ORGANIZATIONS (NGOs) INVOLVED IN WETLANDS PROTECTION.  

Citizen action is about changing the definition of what is possible.

Mark Davis, Director, ByWater Institute, Tulane U.

Across Louisiana, there are many NGOs that are involved in wetlands issues.  These include church groups, nature centers, exhibits at the aquarium and zoo, hunting and fishing clubs, university green groups, and the like.  The following are some of the biggest players.

Coalition to Restore Coastal Louisiana (CRCL).   Founded in 1988, CRCL was initially composed of environmental organizations and their representatives.  Its membership now includes individuals and a growing number from business, industry, government, and the like.  Its sole purpose is to further the protection of coastal wetlands.  It does so by monitoring legislation that will or may impact wetlands, educating people about wetlands issues, and working with other NGOs and governments to enhance wetlands protection.  It is considered by most to be the clearinghouse for wetlands thinking and action in Louisiana.  Noteworthy publications include Coastal Louisiana:  Here Today, Gone Tomorrow (CRCL, 1989); Coast Watcher’s Guide: How to Preserve and Protect Louisiana’s Wetlands and Coastal Zone (Clipp, 1995); and No Time to Lose.  Facing the Future of Louisiana and the Crisis of Coastal Land Use (CRCL, 1999). 

Lake Pontchartrain Basin Foundation (LPBF).  Founded by the legislature and tied to the Greater New Orleans Expressway Commission (the “causeway”), and based in Metairie, the LPBF is charged with protecting and cleaning Lake Pontchartrain.  

Barataria-Terrebone National Estuary Program (BTNEP).  As part of the EPA’s national estuary program, BTNEP developed a comprehensive plan for the management of the Barataria and Terrebonne estuaries and is now implementing the program.  This is one of the largest, most inclusive programs of its kind for Louisiana.  BTNEP has become a very important player in the wetlands arena in Louisiana.  Its staff has many plans and strategies developed, and they are players in each and every wetlands event. 

The Water Institute of the Gulf (TWIG).  "The Water Institute of the Gulf was formed in 2011 as a not-for-profit, independent research institute dedicated to advancing the understanding of coastal and deltaic systems and applying this knowledge for the benefit of society. In collaboration with public, private and academic partners, The Water Institute of the Gulf studies coastal and deltaic systems to preserve and protect the U.S.’s Gulf Coast environment, a major source of natural and industrial resources, while developing and sharing cutting-edge technology with the goal of advancing water management efforts worldwide."  

thewaterinstitute.org

Restore the Mississippi River Delta (coalition of the National Wildlife Federation, Audubon Louisiana, and the Environmental Defense Fund).  This not-for-profit coalition works tirelessly on local coastal wetland initiatives. 

Save our Wetlands, Inc.  This not-for-profit is usually at the more radical end of the discussion.  They come out of nowhere and file law suits, many of which have either begun an important movement or resulted in important protection for wetlands.  They become active when they encounter an issue.

National Audubon Society (NAS) and its chapters in Louisiana.  NAS has been very active in the debate of the regulatory approach to wetlands management.  They own wetlands in Louisiana that have active oil and gas operations on them.

National Wildlife Federation and Louisiana Wildlife Federation.  The latter is an affiliate of the former.  They are very involved in all wetlands issues in Louisiana and mobilize many citizens to action.

Ocean Conservancy.  A national organization that has offices in Baton Rouge and New Orleans.  They focus on the Gulf of Mexico in this area.    

Sierra Club chapters in Louisiana.  The Sierra Club has been active in litigation to protect Louisiana wetlands.

Gulf Restoration Network.  They focus mainly on the Gulf of Mexico and wetlands issues.  GRN is headquartered in New Orleans.

Woodlands Conservancy.  Based in Plaquemines and St. Bernard Parishes, this organization combines conservation of woodland trails systems with deep concern for wetlands.

Restore the Earth.  This organization was started by a marketing firm, then in New York City and now in Ithaca, NY.  It’s purpose it to do plantings in coastal wetland areas, also using volunteers extensively.

Restore and Retreat.  Based in Houma, La., this organization focuses especially on wetlands issues in Terrebonne and Lafourche parishes.

For the Bayou.  A San Francisco based organization that assists coastal wetland restoration efforts in Louisiana.

Assorted NGOs.  There are many other fine groups who work on wetlands issues, making great contributions.  They include the League of Women Voters, Women for a Better Louisiana, etc.

America’s WETLAND Campaign.  This group was developed by the Louisiana Department of Natural Resources, and initially funded by a $3 million grant from Shell Oil Company.  Its sole purpose is to market to Louisiana citizens and Congress the need to protect coastal Louisiana.  It now has a Board of Trustees that directs its work.

• Women of the Storm. Women of the Storm is a non-partisan, non-political alliance of Louisiana women whose families, businesses and lives were affected by Hurricanes Katrina and Rita. The mission is to draw the attention of Congress, media and opinion leaders to the needs of New Orleans, South Louisiana and the entire Gulf Coast. http://www.womenofthestorm.net/
• Blue Ribbon Resilient Communities.  An effort to host community meetings to discuss their vulnerabilities and needs.
• America’s Energy Coast.  An active effort by a diverse group of businesses, conservation organizations, and others that are concerned with the energy values along the Gulf of Mexico coast between Texas and Alabama.
• America’s WETLAND Conservation Corps.  Organizes efforts by citizens to restore the coast.
• Estuarians.  A group of 9 costumes, each representing an important resource that relies on coastal wetlands, that do performances and appearances to promote saving wetlands.
• Coast Guardians.  A group of business and CEOs who are focused on maintaining the integrity of our coastal wetlands. http://www.americasenergycoast.org/page.php?page_ID=8

Environmental Defense Fund.  This is a national environmental organization that has been extremely active helping Louisiana environmental groups (especially the Coalition to Restore Coastal Louisiana) with their strategy development.

 Earth Justice Legal Defense Fund (now defunct in New Orleans, formerly the Sierra Club Legal Defense Fund).   Though normally involved in protecting the rights of the poor, Earth Justice made an important contribution in publishing Citizens’ Guide to Louisiana Wetlands (Wiygul and Clipp, 1995).

National Wetlands Coalition (inactive since the 1990s).   This was a very powerful national organization started by large landowners, oil companies, and some local government groups to develop and lobby national legislation that would counter what they believe to be wetlands regulations that stifle their priorities and ability to do business.  It was founded by the Louisiana Land and Exploration Company (purchased by Burlington Resources, and now owned by Conoco Phillips), then based in New Orleans.  .

VII.  LANDOWNERS.  When discussing what to do about wetlands, it is normally overlooked to discuss the role of landowners.  How odd.  The very folks who have the most to gain are normally considered the enemy of society in wetlands issues.  Since they have personal gain at stake, they are considered “impure in motive.”  Certainly, America was founded on the basis of individual freedoms and the rights of property owners.  There have been some owners who have truly abused wetlands for personal gain without regard to laws, regulations, and the public good.  However, most responsibly want to realize gain from their holdings while protecting the wetlands environment.  The argument remains, what kind of protection and how much is enough.  That is a totally different discussion that may have no solution.  Property owners may work individually, or through such membership groups as the Louisiana Land Owners Association.    They may also advocate through business/product groups such as Louisiana Mid-Continent Oil and Gas Association.

  

VIII.  COURT RULINGS THAT AFFECT WETLANDS

1.  Various court decisions.  The best example is that of Save Ourselves, Inc. v. Louisiana Environmental Control Commission (1983).  The Louisiana Supreme Court held that agencies are required by the state constitution to consider and require the reduction of adverse environmental consequences when reviewing permit applications.  The agencies can require alternate activities and/or mitigation.

 

2.  Phillips Petroleum v. Mississippi

It has historically been believed that the beds and bottoms of all non-navigable bodies of water, including lakes, bayous, rivers, streams, ponds, tide lands, and other water bodies, may be held in private ownership.  Based solely on state sovereignty, the beds and bottoms of navigable waterways are owned by the state in which they reside.

In a U.S. Supreme Court case (Phillips Petroleum v. Mississippi, 108 S.Ct. 791, February 1988), the interpretation of ownership of coastal tidelands has changed.  This decision holds that the original thirteen states, by their own agreement at our country's founding, own title to all non-navigable waterbeds subject to the ebb and flow of the tides.  According to "equal footing doctrine," all states subsequently admitted to the Union would have the same entitlement.  One can only imagine the anxiety this has caused to landowners in all coastal states!  

Although Phillips establishes federal law that addresses the issue, it is very clear that, after the state is admitted to the Union, state law will determine title rights.  Phillips further recognizes that some states have given the tidal wetlands rights over to private ownership.  This sent lawyers in all coastal states scurrying about to establish that their state was one that had received the private ownership rights.  Louisiana was no exception.  In fact, with her vast holdings, Louisiana was among the first, if not the first, to the line.

The Louisiana Attorney General's office, on March 5, 1990, issued an opinion (No. 90-35) that stated that, based on Phillips, a water body is owned by the state if it "was subject to tidal ebb and flow in 1812 even though not navigable in fact."  After receiving disagreement from the state's landowners, the Attorney General's office further maintained that the state's tidal wetlands must be "held in public trust for the benefit of all citizens" and that these lands "cannot be alienated except directly by the people themselves."  With this stance, the Attorney General's office has taken the position that private ownership is null and void.  One can imagine how this has excited the landowners!

It was apparent that the only long-term answer to this issue in Louisiana was to acquire legislative clarification.  The result was the 1992 passing of Senate Bill. No. 1073.  It distinguishes between Mississippi and Louisiana law; its intent was to establish that existing ownerships are valid.  The result is that present Louisiana landowners have had their deeds revalidated and the ownership of Louisiana tidal wetlands remain as they existed before Phillips Petroleum v. Mississippi.

During the Louisiana legislative session of 1992, the above referenced legislation sparked all sorts of controversies.  Chief among them was that the purpose of Senate Bill 1073 was to allow tidal wetlands owners to prevent public use of their waterways.  The public argument was that landowners would be able to prevent fishing, canoeing, and other low-impact enjoyment of the out-of-doors.  There was a very loud outcry from the crawfishing industry which feared that landowners in the Atchafalaya Basin might refuse access to their land.  Louisiana landowners deny that this was the intent.  As stated, they simply wanted to reaffirm the validity of their deeds.  The following statement in the bill should at least address those fears of being denied use:  Page 2, first paragraph:  "Furthermore, it is the intent of the legislature by the enactment of this Part that no provision herein shall be interpreted to create, enlarge, restrict, terminate, or affect in any way any right or claim to public access and use of such lands, including but not limited to navigation, crawfishing, shellfishing, and other fishing, regardless of whether such claim is based on existing law, custom and usage, or jurisprudence."  Of course, the oyster industry was protected by the statement ". . . without affecting the provisions of the state Oyster Statutes passed by the legislature since 1886."  

There is a feeling among some landowners that they should have the right to lease the use of natural resources on their land.  Of course, they already do this with oil and gas, duck hunting, and trapping.  They contend that they should be able to do the same with shrimping, crawfishing, etc.  This is an interesting discussion!

3.  Lucas v. South Carolina Coastal Council (see Turner and Kalen, 1998).

In 1986, David Lucas purchased a large beachside lot on South Carolina's coast for $975,000.  His intention was to build two beach houses, keeping one and selling the other.  In 1988, the state passed a law barring construction on his and similar sites in order to prevent environmental damage and danger resulting from coastal storms.  Lucas considered that this new regulation, after he bought his property at a time when development was legal, constituted the state taking the rights of use of his property from him.  He sued using a little known aspect of the Fifth Amendment - a clause that prevents government from taking private property "without just compensation."

A court in South Carolina agreed and awarded him $1.2 million.  The South Carolina Supreme Court then overruled, stating that a law passed to prevent serious public harm doesn't require compensation.  Not satisfied, Lucas took his argument to the U.S. Supreme Court (case No. 91-453) which, in a 6-3 vote (June 29, 1992), ruled that, in this case the new law deprived Lucas of the entire value of his land and that the state must compensate him (unless they found exceptions such as those mentioned later in this paragraph).  Justice Antonin Scalia opined that even in the case of serious harm, the state's high court did not have the right to deny Lucas "all economically viable use of his land."  The Justice indicated, however, that there are exceptions.  As an example, if the legal title of the land forbids the use the landowner is trying to make of his/her land, then he/she is not eligible for compensation.  There are also some exceptions that will be allowed with certain types of legislative and agency directives.  These must be ruled on one-by-one.

Due to the state of South Carolina passing a law, after the Lucas case was initiated, that allowed the state to make variances for such issues, The U.S. Supreme Court sent the case back to the state Supreme Court.  The state granted variances for construction on the lots formerly owned by Lucas, sold them on the open market, and used the money received to pay Lucas what he was owed from the Supreme Court decision.  How ironic is this? 

It is interesting that the ruling was hailed as a victory by both developers and environmentalists.  There followed many cases that awaited judgments in lower courts throughout the nation.  The fervor has abated, but the controversy is not gone.

The bottom-line question is:  who pays, taxpayers or land owners?

What are the ramifications?  The central argument is that rights can be limited only at a price.  One of the people writing briefs for the Lucas case, Clint Bolick, said "If the government can't afford it, then government shouldn't do it."   It is possible that any and all government constraints placed on the public can be called into question, including housing codes, zoning, and more.  Environmentalists consider this ruling to signal "open season" on wetlands protection, Endangered Species Act, etc.  Most scholars on the subject don't think that polluters can seek compensation due to regulation by the Clean Water Act or Clean Air Act.  Let's hope they are correct!