Judge: Corps must pay full $3 billion cost of restoring MR-GO wetlands
In a major victory for Louisiana, U.S. District Judge Lance Africk ruled the corps improperly tried to stick the state with 35 percent of the restoration cost. When the state declined to pay, the corps refused to begin the restoration program, all in violation of Congressional intent, Africk ruled.
“Ten years after Hurricane Katrina vital ecosystem restoration remains incomplete,” Africk wrote. “Rather than abide by the clear intent of Congress and begin immediate implementation of a plan to restore that which the corps helped destroy, defendants arbitrarily and capriciously misconstrued their clear mandate to restore an ecosystem ravaged by the MR-GO.”
The ruling said Congress “unambiguously expressed intent does not require the state of Louisiana to pay for the shortcomings of the U.S. Army Corps of Engineers.”
Africk added that the corps’ refusal to begin work on the restoration project “has compounded the problems that MR-GO caused.”
But he also noted that his ruling was likely to be appealed by the U.S. Justice Department and the corps. If they are successful, Africk said, Louisiana officials “may be forced to decide” whether to spend nearly $1 billion to repair damage caused by the federal government.
“We are very pleased with the Court’s decision in this matter, which will provide substantial benefits to coastal Louisiana and will protect important state taxpayer dollars,” said Louisiana Attorney General Buddy Caldwell. “With this ruling, I am confident the project will be completed to protect our state’s fragile ecosystem, which is essential for the safety and well-being of Louisiana residents.”
NOTE: The United States Army Corps of Engineers is a U.S. federal agency under the Department of Defense and a major Army command made up of some 37,000 civilian and military personnel, making it one of the world’s largest public engineering, design, and construction management agencies. Although generally associated with dams, canals and flood protection in the United States, USACE is involved in a wide range of public works throughout the world. The Corps of Engineers provides outdoor recreation opportunities to the public, and provides 24% of U.S. hydropower capacity.
The corps’ mission is to “Deliver vital public and military engineering services; partnering in peace and war to strengthen our Nation’s security, energize the economy and reduce risks from disasters.” Wikipedia
Congress ordered corps to restore wetlands
In 2007, Congress passed legislation de-authorizing the 72-mile MR-GO, a shortcut from the Gulf of Mexico to the Industrial Canal in central New Orleans, and ordered the corps to come up with a plan to restore wetlands damage caused by the canal. In his ruling, Africk said the intent of Congress in that legislation was clear in requiring the corps to pay for the full cost.
He wrote the corps never produced “a single statement by any legislator, or any other item within the legislative history” supporting its view that Louisiana had to pay for a share of the work.
The only statement in the Congressional Record that was germane, Africk said, was by U.S. Sen. David Vitter, R-La., who served on the House-Senate conference committee that reconciled different versions of the bill. Vitter said one section of the bill clarified that all authorized work “shall be performed at full federal expense.”
In 2012, Lieutenant Gen. Thomas Bostick, commander of the corps, approved a $2.9 billion plan for restoration. But he ordered it put on hold because the state refused to pay a 35 percent share the corps said was required under a 1987 law that said all corps water project should be cost-shared, with the corps paying only 65 percent.
The 2012 plan called for a three-tier restoration project, with the first tier costing $1.3 billion. The second and third tiers were expected to require additional research before they were implemented.
Tier 1 listed 21 features, including 11 shoreline protection projects, a ridge restoration project, eight wetlands restoration projects and a recreation feature. Wetlands adjacent to the Rigolets in St. Tammany Parish and in open water areas south of the MR-GO and Shell Beach in St. Bernard Parish were included.
Projects also would stabilize wetland edges at Proctor Point and on the east and west sides of Lake Borgne, and the planting of 5.8 miles of artificial oyster reef on the Chandeleur Sound side of the Biloxi Marsh.
In the aftermath of the corps’ decision to halt work on the project, the state has included some of the projects in its requests for funding with BP oil spill money or through the spill’s Natural Resource Damage Assessment program.
The plan’s Tier 2 projects, totaling $325 million, will require reduced salinity along the path of the MR-GO. But they may work without having to build a $1 billion freshwater diversion that makes up Tier 3 of the plan. In closing the MR-GO to shipping, the corps dammed its southern end, which has already reduced the salinity along its course.
Tier 3 also would include restoration of segments of the Central Wetlands Unit in St. Bernard Parish east of the Paris Road Bridge, which would require freshwater from the diversion, and restoration of Golden Triangle wetlands on both sides of the Lake Borgne hurricane surge barrier, parts of the East Orleans Land Bridge along Lake Pontchartrain, and additional restoration of portions of the Biloxi Marshes on the southeastern edge of Lake Borgne.
Again, some of those projects have been proposed for funding with BP oil spill money or through the spill’s Natural Resource Damage Assessment program.
If Africk’s ruling is appealed and upheld, Congress would still have to appropriate money for the restoration program.
U.S. Rep. Garret Graves, R-La., praised the decision Thursday, calling it a first step in controlling decisions by the corps’ legal staff that are at odds with the will of Congress.
Graves, who was elected to Congress earlier this year, helped draft the 2007 Water Resources Development Act that included the MR-GO closure and restoration language while on the staff of the Senate Environment Committee, and later became chairman of the Louisiana Coastal Protection and Restoration Authority, where he oversaw the authority’s decision to file the suit against the corps.
“The attorneys, not the law, the attorneys are making all the decisions,” Graves said during an interview. “The internal joke in the corps about their legal office is that it’s the office of no.”
But Graves said there likely is still room for negotiation with the state over the cost of the restoration project. He said it might make sense for the state to use the approximately $150 million of projects – mostly funded through BP spill payments – that are proposed by the state along the MR-GO as a voluntary “in-kind” payment to match corps funding.
“It would be a show of good faith, that they want the project to be built, while also preserving the role and decision-making of Congress on the project.