MRGO ruling raises legal issues for HNC

Federal District Judge Stanwood Duval dealt a huge blow to the U.S. Army Corps of Engineers last week when he ruled that it was responsible for flooding caused by the Mississippi River Gulf Outlet (MRGO) during Hurricane Katrina.

The verdict officially awarded $720,000 to six plaintiffs, but if the ruling is upheld, it could open the door for tens of thousands of lawsuits and cost billions of dollars in damages. Although the case is likely to be appealed, it could have a dramatic impact on the Tri-parish area.

Its legal ramifications may expose the corps or Terrebonne Parish to lawsuits over flooding caused by the Houma Navigational Canal (HNC), and its stinging rebuke to the corps calls into question the efficacy of the long-awaited Morganza-to-the-Gulf levee system.

In a scathing 156-page decision, Duval blasts the corps for its role in the disaster.

“The corps’ lassitude and failure to fulfill its duties resulted in a catastrophic loss of human life and property in unprecedented proportions,” said Duval. “The corps’ negligence resulted in the wasting of millions of dollars in flood-protection measures and billions of dollars in congressional outlays to help this region recover.”

HNC May Be Legal Liability

Due to federal statute, a resident can’t sue the corps for levee failure. Duval ruled earlier this year that because MRGO was built as a transportation route, that statute did not apply. During Hurricane Katrina, water was funneled through MRGO and into the Gulf Intracoastal Waterway, and eventually caused flooding on Lake Borgne and the breach of the Industrial Canal.

Like MRGO, the HNC is a transportation route, and during Hurricane Ike, a storm surge rushed up the canal and caused flooding once that water reached the Intracoastal.

It is not yet clear if Duval’s ruling will be applicable to the HNC as the case is still under review and subject to appeal, said Charles Miller of the Justice Department.

Joseph Bruno, the attorney for the plaintiffs in the MRGO case, however, said that the ruling could leave the parish open to liability. Although the corps designed the canal, the parish paid to build and maintain it, and therefore it would prospectively be liable.

Plaintiffs would have to prove that the parish was negligent in its maintenance of the canal, which caused flooding, or that it knew the canal would cause flooding and failed to warn residents and put safeguards in place, according to Bruno.

“If they built it, then they find out that this thing is really causing some problems and if you don’t tell anybody about it and you don’t put in place some protections or safe guards, then we believe there is liability there as well,” said Bruno.

Earl Eues, the director of Emergency Preparedness of Terrebonne Parish, said, “The HNC is the same thing that MRGO is. It’s a shortcut to the Gulf. If we do get a storm where we’re on the east side of the eye and the storm’s coming up toward Morgan City, we will see a pretty large storm surge coming up the HNC.”

Eues also said that we had seen some storm damage related to the HNC following hurricanes Rita and Gustav, but that it wasn’t nearly as bad as what the MRGO saw during Katrina.

“Well, now they have knowledge, so the question is what you’re going to do about it,” said Bruno. “That’s like constructive knowledge.”

A proposed lock structure for the HNC would effectively shut off storm surges heading up the canal, which would be built alongside the Morganza-to-the-Gulf flood protection system. That project, however, is still at least two years from federal authorization, and getting congressional funding could take several more years.

In the meantime, the Terrebonne Parish Levee and Conservation District is in the permitting stage of building a 250-foot wide barge floodgate, said the district’s Executive Director Reggie Dupre.

The interim floodgate will be built alongside Reach F of the levee system because, “a floodgate in and of itself will not do any good without a levee connected to it,” he said.

Dupre anticipates the floodgate project should be under construction by the end of 2010 and estimates construction will take two years to complete. In the mean time, the canal remains open.

Corps’ Flood Prevention Strategy Questioned

With the corps officially held liable for flawed design and mismanaged priorities in MRGO, some are starting to question the agency’s ability to manage flood protection in the region.

In a press release following Duval’s ruling, U.S. Sen. Mary Landrieu (D-La) said, “This decision also confirms my belief that we need sweeping change to flood protection, coastal restoration and water management for our cities, large and small, in Louisiana. The Corps of Engineers can no longer be relied upon as the lone agency charged with protecting our coastal communities.”

Landrieu highlighted the area’s loss of coastal wetlands, which for centuries provided natural hurricane protection. The corps has long been accused of building levees and canals without regard for the protection wetlands give.

“This fragile and unique delta is in a state of environmental, ecological and economic crisis and we need a new approach from the federal government to swiftly address these serious challenges. We cannot afford to wait for the next failure of our federal government to get it right. We have waited long enough.”

As the president of the Morganza Action Committee, Berwick Duval may be the biggest proponent of the massive federal levee system proposed for Terrebonne and Lafourche parishes. Even he believes that coastal wetlands do a better job of protecting the area from hurricane flooding.

“A hurricane just wilts over wetlands,” said Duval. “Morganza is just a stopgap. For Morganza to ultimately be successful in 50 years, we need to stop the land south of it from eroding. We’ve got to stop the bleeding.”

Wetlands and low-lying forests also act as a storm surge protector by absorbing wave energy and breaking up surges. “We wouldn’t have had the flood damage we’ve had lately if we still had the wetlands,” he said.

In the MRGO ruling, Judge Duval cited wetlands loss as a cause of flood damage, saying, “The loss of wetlands and widening of the channel brought about by the operation and maintenance of the MRGO clearly were a substantial cause of plaintiffs’ injury.”

Berwick Duval’s brother is the judge who made the ruling against the corps and could not comment directly on the case.

The Morganza project is an attempt to fix the problems the corps helped to bring about.

A series of corps projects dammed the Mississippi River and stopped some flooding upriver. The river once filtered slowly through Louisiana’s wetlands and brought silt deposits and fresh water to the region. Now, sediment in the river is either dammed off up stream or flows out into the Gulf.

As quickly as ocean erosion took away land, the river used to replenish it, creating a lush series of storm-stopping wetlands and barrier islands. With silt flow cut off, land began to fade away. And with fresh water cut off, salt water crept in and began to kill many of the cypress forests and plant life that buffered the coast from storms, starting a vicious cycle of wetland loss.

“We didn’t build on low land,” explained Duval, “low land came to us.”

According to the corps’ Web site, cutting off the Mississippi River is responsible for about a third of the wetlands’ loss. Factor in 10,000 miles of oil company canals and a natural rise in sea levels, and Louisiana has lost over 1.2 million acres of wetlands since 1932.

The criticism of some is that the agency that helped dig Louisiana into this mess may not be able to dig it out.

To the corps’ credit, it has taken a hard look at coastal wetlands in the wake of hurricanes Katrina and Rita. The Louisiana Coastal Protection and Restoration study was commissioned to look at how wetlands can be integrated into storm protection measures.

“That’s what changed the way that people are looking at a lot of these projects,” said Elaine Starks, the corps’ project manager for Morganza.

According to the Louisiana Coastal Protection and Restoration section of the corps’ Web site, “a levees-alone approach is not enough. A multiple-lines-of-defense strategy requires a combination of coastal restoration features, nonstructural measures and structural components, that include Mississippi River diversions, marsh creation, evacuation, elevating structures, building levees and floodgates.”

The Morganza project will do a good deal to protect the wetlands inside of its wall, according to the storm protection’s environmental manager Nathan Tayan. The levees themselves should stop wave erosion from taking away existing wetlands, and the lock structure at the HNC will stop saltwater intrusion from killing marshland and flora. It does little, however, for the area outside of the levees.

Tayan said that the wetlands in Terrebonne are already so bad that the project itself will restore wetlands.

“We know that there’s value in adding appropriate features in appropriate locations in terms of managing risk,” said Tayan. “Unfortunately, in Terrebonne, that’s one of the areas that we saw the loss wasn’t really making a difference, and part of the reason for that is it’s a pretty badly degraded system now, and a lot of the future loss that’s forecast is happening behind the levee already.”

In order to save a large swath of the country from river flooding, the corps left Louisiana prone to flooding and rising sea levels. Morganza is an attempt to fix that problem, but it does little to address the cause of the problem: the staggering loss of coastal wetlands.

One reason for a lack of restoration in the project, according to Starks, is that the system was developed in the mid-1990s, before wetlands protection was recognized as a means of flood protection. To go back and add in a restoration component, the corps would have to take a major step back and complete a new feasibility study that would delay the project several more years.

In the meantime, southern Louisiana residents can’t afford to wait for storm protection. U.S. Congressman Charlie Melancon (D-Napoleonville), who represents the area affected by Morganza, has called his constituents “sitting ducks” for the next major hurricane to hit the coast.

“Morganza to the Gulf will provide critical hurricane protection to over 100,000 Americans in south Louisiana, help prevent further loss of wetlands, and increase our nation’s energy security,” he said. “We can’t afford to delay it any longer.”

Due to numerous delays in the process, area residents have taxed themselves and started building along the Morganza alignment without the federal government.

Berwick Duval, meanwhile, supports Morganza because it is the only shovel-ready project to protect his home.

“If you said, ‘I can put your marsh back to the way it was in 1965,’ good. We don’t need Morganza,” said Duval, “But there is nothing on the books to put it back to the way it was in 1965 or even to stop it from eroding more. I’m a pragmatist. I can see Morganza in my lifetime.”

A federal district judge ruled last week the Mississippi River Gulf Outlet (pictured before it was permanently closed) caused flooding in St. Bernard and Orleans parishes during Hurricane Katrina. * Photo courtesy of U.S. ARMY CORPS OF ENGINEERS