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Coast in Crisis: Are laws designed to protect the environment slowing efforts to restore Louisiana's coast?

Land near Davis Pond fresh water diversion with the New Orleans skyline in the background (John Snell) Land near Davis Pond fresh water diversion with the New Orleans skyline in the background (John Snell)
NEW ORLEANS (WVUE) -

On June 22, 1969, an oil slick on Cleveland's Cuyahoga River caught fire, again.

It had not been the first fire on the heavily polluted river, but the resulting outrage helped spark the modern environmental movement and passage of laws such as the Clean Water Act.

"I remember when our waterways were, frankly, disgusting and our air was polluted," said David Muth, director of the National Wildlife Federation's Gulf Restoration Program.  "All those things have improved." 

From bald eagles to brown pelicans and alligators, various species of wildlife in Louisiana and other states have recovered being from the verge of extinction.

Yet, even some environmentalists now complain the very laws designed to protect nature can frustrate efforts to rebuild and restore the environment, specifically projects aimed at reassembling portions of Louisiana's rapidly vanishing coast. 

"The pace of execution has been agonizing," Muth said.

He believes lawmakers confronted with the problems of the 1970s could not possibly have envisioned relative sea level rise, the loss of roughly 2,000 square miles of coastline, or the $50 million Louisiana Coastal Master Plan. 

"The scale that we're looking to do restoration just wasn't conceivable in the 1970s," Muth said.

None of the projects-- big or small-- can happen without federal permits from a host of agencies, including the U.S. Army Corps of Engineers, National Marine Fisheries, the Interior Department, the Environmental Protection Agency and even the U.S. Department of Agriculture. 

Critics complain when one of those agencies raises an objection, it frequently slows the entire process.

The rapid loss of the coast raises the urgency in the minds of many environmentalists.

"The ability to get to (a decision), whatever it is, in time for it to matter is hugely important," said Mark Davis, Director of the Institute on Water Resources Law and Policy at Tulane University.

The National Environmental Policy Act requires a review of the potential impacts of a proposed project, often leading to a lengthy and complicated process to produce a statement about the environmental impacts. 

Davis believes the issue is not so much the laws themselves, but how the federal agencies apply their reviews.

"There is nothing in the National Environmental Policy Act that says though shalt take 10 years to make a record to make a decision," Davis said.  

The stakes are especially high for supporters and opponents of the most controversial project of all, the planned Mid-Barataria sediment diversion on the west bank of Plaquemines Parish near Myrtle Grove.

The project, estimated to cost $1.4 billion, would push as much as 75,000 cubic feet per second of fresh river water and sediment in Barataria Bay during periods of high water on the Mississippi River.  Proponents, including many coastal scientists, believe by mimicking the land-building power of the river, the diversion would reverse much of the land loss in the nearby marsh.  

Critics fear catastrophic loss of commercial fisheries from fresh, polluted river water moving into brackish or salt water areas. 

Governor John Bel Edwards recently touted an agreement with 
federal agencies to work on various issues simultaneously, potentially shaving years off the permitting process.

"If you leave federal bureaucracies to do what they tend to do you will never speed up the process," Edwards said.

Davis applauded the Memorandum of Understanding, but believes it may be a stretch to suggest the permit will be issued next year as Edwards administration members have suggested.

"It's sort of like watching a football game where it takes forever for things to happen and you get to the last two minutes and they run the hurry up offense," Davis said.  "This is the hurry up offense."

If federal regulators fail to apply the same level of analysis, or cut corners, opponents would surely take them to court.

"They would sue and they likely would win," Davis said.

In the wake of Hurricane Katrina, federal agencies faced the same questions about environment impact, building $14.5 billion in new levees, flood walls and pumps on an accelerated pace. 

Muth believes believes the government needs to find ways to meet the spirit of the law for large-scale environmental restoration, "and not necessarily apply the same procedures to building a parking lot as building a restoration project."
 
National Marine Fisheries had already raised concerns about the effect of the big diversion on bottlenose dolphins in Barataria Bay.

Opponents of the diversion were caught off guard when congress moved to take that issue off the table.

Tucked into a recent spending bill is language that declares diversions "consistent" with the Marine Mammal Protection Act, reducing the chances that the dolphins would halt the project.

"Why not build projects that adhere to federal law instead of trying to change federal law, said George Ricks of The Save Louisiana Coalition, an anti-diversion group of mostly commercial fishermen and charter boat captains.

"If these projects are so good for the environment, why do they feel the need to try to bypass our federal laws protecting our marine mammals and our essential fish habitat?" Ricks said.

Mark Davis believes more and more communities around the country are likely to face these kinds of issues as sea levels rise in the future. 

"There are going to be things that compel a different way of getting to good decisions."

Other factors may clog the works, Davis believes, including a Army Corps of Engineers budget that has not increased in real terms even as Congress tasks the agency with doing more.

"It's sort of like having a small contract crew that can build your house and then asking them to build you a skyscraper," Davis said.  "It's not necessarily going to get it done." 

The state plans several large diversions, including the Mid-Breton Sediment diversion on the east bank of the river upstream from Mid-Barataria.

"The MOU underscores that all engaged federal parties understand the importance and priority that the proposed Mid-Barataria Sediment Diversion has to the state of Louisiana," said Corps spokesperson Rene Poche in an email statement.

"The Corps is committed to working with its federal partners and the state to ensure the permit review is undertaken in a manner consistent with the (Trump) Administration's vision for a efficient yet thorough regulatory process," Poche said.
 
Congress could pass new laws to clear up the confusion, but environmentalists are reluctant to open that debate.
 
"I don't think anybody has the stomach to reopen those laws right now because we're afraid of what might come out of it."

The state's agreement with federal agencies may save precious time, but even Edwards aides concede it does nothing to guarantee the state will win the required permits. 

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