Morganza to the Gulf: Legislative History and Political Dynamics

Morganza to the Gulf: Legislative History and Political Dynamics Dylan Wade Coastal Sustainability Studio Summary This compilation of information traces the legislative history of Morganza to the Gulf, an $886 million levee project that has been authorized for construction south of Houma, Louisiana. Although the project has been authorized, no funds have been appropriated for it by Congress. A primary reason for the stall has been a brewing conflict between fiscal conservatives, the Army Corps along with other private construction firms, and environmental groups. Additionally, the price tag for the project has grown more than tenfold, as the post-katrina levee standards promulgated by the Army Corps are much more expensive. While groups such as the Morganza Action Committee extol the benefits of this massive levee project, in that it protects vital community and commercial infrastructure, other groups such as the Coalition to Restoral Coastal Louisiana say that this levee project will destroy more of the fragile wetlands and ultimately increase the threat of storm surge to nearby unprotected areas. One of the most controversial aspects of the levee project is that many small communities, such as Cocodrie, are left out of the protection scheme, which was determined using a cost-benefit analysis. Legislative History: In 2007, the Congress of the United States passed a $23 billion Water Resources Development Act (WRDA) which authorized the Morganza to the Gulf of Mexico, Louisiana water resource project, along with 46 other large-scale projects, and numerous smaller works projects across the country. 1 The authorization statute simply states: The project for hurricane 1 H.R. 1495, 110th Cong. (2007). 1

and storm damage reduction, Morganza to the Gulf of Mexico, Louisiana: Reports of the Chief of Engineers dated August 23, 2002, and July 22, 2003, at a total cost of $886,700,000, with an estimated Federal cost of $576,355,000 and an estimated non-federal cost of $310,345,000. In these reports to which the statute refers, the Army Corps of Engineers Chief Engineer recommended 72 miles of levee at elevations between +15.0 to +9.0 feet National Geodetic Vertical Datum (NGVD), a 200-foot-wide and 1,200-foot-long lock structure on the Houma Navigational Canal (HNC), as well as numerous floodgates, discharge pipes for existing pump stations, and concrete box culverts through the levee. 2 The initial cost of the project, in the reports, was estimated at $680,000,000, with a federal/state cost share at 65/35 and a net costbenefit ratio of 1/1.5. 3 These reports derive figures from the Feasibility Study of March 2002. 4 In April 1992, Congress authorized the Morganza, Louisiana to the Gulf of Mexico Reconnaissance Study, and following its completion in 1994, Congress then authorized the Morganza, Louisiana to the Gulf of Mexico Feasibility Study by the Energy and Water Development Appropriations Act of 1995. 5 While the Feasibility Study was completed in 2002, Congress did not authorize the project until the WRDA of 2007. Interestingly, President George W. Bush issued the first veto of his presidency against this bill, which was subsequently overridden by Congress. 6 Commenting on the bill, President Bush stated that American taxpayers should not be asked to support a pork- 2 Letter from Robert B. Flowers, Lieutenant General, U.S. Army, Chief of Engineers, to Congress (Aug. 23, 2002)(on file with author); Letter from Robert B. Flowers, Lieutenant General U.S. Army, Chief of Engineers, to the Secretary of the Army (Jul. 22, 2003)(on file with author). 3 The cost benefit analysis, which federal agencies must use according to Exec. Order No. 12,866, 58 Fed. Reg. 190 (Sept. 30, 1993), often underestimates the net benefits, because while costs (such as labor and materials) are more easily quantified, long term benefits (environmental health) are much more difficult to assess with any accuracy. 4 U.S. Army Corps of Engineers, Morganza to the Gulf of Mexico Hurricane Protection Feasibility Report (2002), http://www.mvn.usace.army.mil/prj/mtog/feasibility_study_documents/mtog_index.htm. 5 H.R. 1905, 104th Cong. (1995). 6 Congress Overrides Bush Veto of Water Resource Development Act, Environmental News Service, Nov. 8, 2007 available at http://www.ens newswire.com/ens/nov2007/2007 11 08 02.html. 2

barrel system of Federal authorization and funding where a project's merit is an afterthought. This particular political conflict demonstrates the influence of the Iron Triangle on the United State s legislature. The Iron Triangle is a term used by political scientists to describe the relationship between Congress, a bureaucracy, and an interest group 7 in this case, between Congress, the Army Corps of Engineers (USACE), and the various business interests of the region (construction firms, real estate developers, shipping industry, oil and gas industry). This particular Iron Triangle has been cited as the driving power behind the constantly developing levee projects in southeastern Louisiana. 8 In such a triangle, Congress authorizes and funds projects for the Army Corps of Engineers, who then contracts out the work to local construction firms and gives permits to other industries, and then these special interest groups provide electoral support for Congress. The overwhelming passage of the WRDA of 2007 indicates that there is a strong political base for water resource development projects such as MtoG. Yet, the funds for the project have not yet been appropriated. Moreover, the Reports of the Chief Engineer (containing the specifications for MtoG which Congress authorized) indicate that the levee is to be built at a scale to withstand a 100-year storm. After Hurricane Katrina and Rita, the Army Corps of Engineers came to the conclusion that levees which were previously thought to provide 100-year protection, actually only provide 25-year protection. To build levees which can withstand a 100- year storm requires more than a 60% increase in elevations and a 300% increase in base width. 9 Thus, the costs of building a 72-mile levee with 100-year protection, as was authorized, will be far greater than the cost authorized in the WRDA of 2007. The increased width of the levee base 7 http://en.wikipedia.org/wiki/iron_triangle. 8 Oliver Houck, Can We Save New Orleans?, 19 TUL. ENVTL. L.J. 1 68 (2006). 9 Power Point presentation from Carl Anderson, Senior Project Manager for Morganza to the Gulf, to the Coastal Protection and Restoration Authority (Jan. 14, 2009), available at http://www.coastal.la.gov/index.cfm?md=pagebuilder&tmp=home&nid=112&pnid=76&pid=87&catid=0&elid=0. 3

will require that more land be appropriated, the increased weight will make levees sink faster which will have to be compensated by additions of clay over the 50 year life-time, additional sand will have to be shipped from long distances for base material, and clay will also have to be shipped because the local clay deposits do not meet the revised standards. 10 It has been leaked that one private firm which was contracted by USACE to come up with a cost estimate for MtoG found the price to be between $10.7 and $11.2 billion. 11 Under the Water Resource Development Act of 1986, any water resource development project which costs more than 20% of the authorized figure must be reauthorized. The statute states: In order to insure against cost overruns, each total cost set forth in this Act, or an amendment made by this Act, for a project shall be the maximum cost of that project, except that such maximum amount -- (1) may be increased by the Secretary for modifications which do not materially alter the scope or functions of the project as authorized, but not by more than 20 percent of the total cost stated for the project in this Act or in an amendment made by this Act; and (2) shall be automatically increased for -- (A) changes in construction costs applied to unconstructed features (including real property acquisitions, preconstruction studies, planning, engineering, and design) from the date of enactment of this Act (unless otherwise specified) as indicated by engineering and other appropriate cost indexes; and(b) additional studies, modifications, and actions (including mitigation and other environmental actions) authorized by this Act or required by changes in Federal law. 12 Thus, the political conflict which was displayed in the passage of the WRDA of 2007 will be repeated as different groups push for reauthorization of MtoG. 10 Mark Schleifstein, Flood Project s Cost Estimate Explodes, The Times Picayune, June 16, 2008, available at http://www.nola.com/news/index.ssf/2008/06/flood_projects_cost_estimate_e.html. 11 Id. 12 H.R. 6, 99th Cong. (1967). 4

Political Dynamics: Some of the special interest groups currently advocating for MtoG are the Morganza Action Coalition and the United States Chamber of Commerce. 13 The Morganza Action Coalition (MAC) has engaged in a nation-wide campaign to rally public support for MtoG. This coalition was organized in 2006 by Terrebonne Parish residents and business owners. They have published editorials in newspapers and national magazines, 14 issued multiple press releases on their position, and have sent delegations to the United States Congress. 15 In 2007, the president of MAC, Daniel J. Walker, sent a letter to Governor Jindal urging him to use his executive authority to fund and expedite the MtoG project. 16 In this letter, MAC details several points in favor of building the levee project. First, the letter details the economic strengths of the Terrebonne-Lafourche hub that the regions provides 30% of the nation s (domestic I presume) oil and gas supply and hosts the nation s largest energy port (Port Fourchon), that Houma is one of the fastest growing regions of the State with the highest job-growth percentage (3.5%) and lowest unemployment rate (2%), that more than 9,300 miles of pipelines are protected by the wetlands, that Louisiana s wetlands provide 35% of the nation s seafood, and they provide a habitat for migratory birds. Second, the letter raises the point that, without any hurricane protection, any future direct hit will likely annihilate the Terrebonne and Lafourche Parish 13 Press Release, U.S. Chamber of Commerce, U.S. Chamber Calls on Congress to Pass Water Resources Development Act in 2010 (May 6, 2010) available at http://www.uschamber.com/press/releases/2010/may/uschamber calls congress pass water resources development act 2010. The U.S. Chamber of Commerce also advocates for increased funding and directorial power for the USACE. Policy Statement, U.S. Chamber of Commerce, U.S. Chamber of Commerce Policy Statement on Marine Transportation available at http://secure.uschamber.com/nr/rdonlyres/eyab4rtjb46hxhmo5vhodbeicnwk2i77vjkefrpvkalhjesgspufktxxpi24mv 7aqddtb5tq77hvy5b6flnvtcwff5h/USCCMTSPolicyBooklet.pdf. 14 Dan Walker, Op Ed., Call Bush, Tell Him to Approve Our Levees, The Courier, Sept. 30, 2007; Daniel Walker, Letter to the Editor, TIME Magazine, Aug. 1, 2007. available at http://www.morganza.org/news.html. 15 Press Release, Morganza Action Coalition, Local Delegation Travels to Washington D.C. for Morganza Project (Sept. 27, 2007) available at http://www.morganza.org/news.html. 16 Letter from Daniel Walker, President, Morganza Action Coalition, to Governor elect Bobby Jindal (Dec. 20,2007), available at http://www.morganza.org/news.html. 5

region, potentially killing thousands of people, destroying homes and business along the way, and crippling the oil and gas infrastructure here so severely that gas prices will skyrocket beyond currently shocking levels referring to Hurricane Rita as a baseline, which landed 200 miles away yet inundated 10,000 homes and business resulting in $75 million in damage. Third, the letter extols the environmental benefits of the MtoG project, as a leaky levee that will allow water to flow between the interior and exterior marshes, which would improve the existing hydrology and maximize ecosystem sustainability for already starved and disintegrating wetlands. 17 The letter then presses Governor Jindal to request that the USACE proceed with building the Houma Navigation Canal (HNC) lock, and request that the project s federal funding be turned over to local sponsors to design and build the project (referring to the activity of Terrebonne Parish Levee District which had already begun construction of the J-1 reach of MtoG) with the USACE oversight. 18 Interestingly, the previous president of MAC and former executive director of the Terrebonne Parish Levee District, Phillip Zerengue, has recently been hired by the Coastal Protection and Restoration Authority (CPRA) which is in charge of developing a master plan for Louisiana s coastal protection and restoration efforts. Further support for MtoG from the Terrebonne community can be inferred from the scoping document, where members of the public were give an opportunity to provide comments on the Environmental Impact Statement prepared by the USACE for MtoG as required by the 17 The veracity of this claim is highly debatable. In the Technical Review Panel s assessment of the Environmental Impact Study conducted by the USACE, the panel criticizes the MtoG plan as focused entirely on hurricane protection instead of coastal restoration. Report from the Morganza to the Gulf Techinical Panel Review, Final Report, to the Coastal Protection and Restoration Authority (Dec. 5, 2008) available at http://www.houmatoday.com/assets/pdf/hc14180128.pdf. The critique makes sense, considering it is difficult to imagine how it would improve the hydrology of an already starved wetlands by building a levee that blocks hydrological flow, even if flood gates are situation so as to allow some of the current hydrological paths to remain in place. 18 This request doesn t make sense, because no funding has been appropriated for the project. 6

National Environmental Policy Act (NEPA). 19 These comments were entirely supportive of the MtoG project and also disclosed an additional reason for that support part of the design for building a lock on the Houma Navigation Canal (supposedly to block storm surge and prevent saltwater intrusion) is to deepen and widen the channel. Several leaders in the oil rig construction business commented that they supported the building of this lock because the additional width and depth would allow larger vessels to travel between Houma and Gulf if such vessels are then able to move inland to Houma, then it will be possible to construct larger parts of oil rigs in Houma itself and then ship them into the Gulf. Several other groups, however, have opposed the MtoG project due to both fiscal and environmental concerns. We have already seen the power of fiscal conservatives in American politics, as President Bush vetoed the 2007 WRDA because he considered it to be a pork-barrel project. The Heritage Foundation, a conservative think-tank, has also expressed such criticism. 20 A coalition of other organizations, called the Coalition to Restore Coastal Louisiana (CRCL), have released a document which details extensive criticisms of the MtoG for both environmental and fiscal reasons, and they offer recommendations for an alternative strategy called multiple lines of defense. 21 The document recommends a very different strategy from a massive levee wall, involving a 400-year levee protection system much closer to Houma, with ring levees around Dulac and 19 United States Army Corps of Engineers, Mississippi River & Tributaries Morganza, Louisiana to the Gulf of Mexico Hurricane Protection: Houma Navigational Canal (HNC) Lock Complex and Associated Structures, Environmental Impact Statement Scoping Document (May 12, 2006)(on file with author). 20 Press Release, Ronald D. Utt, The Heritage Foundation, The Water Resources Development Act of 2007: A Pork Fest for Wealthy Beach Front Property Owners (May 15, 2007) available at http://www.heritage.org/research/reports/2007/05/the water resources development act of 2007 a pork festfor wealthy beach front property owners 21 Report from the Coalition to Restore Coastal Louisiana, Comprehensive Recommendations Supporting the Use of Multiple Lines of Defense Strategy to Sustain Coastal Louisiana (2008), available at http://www.mlods.org/images/ex_summ_only_v1_12 08.pdf 7

Theriot, and freshwater diversions to feed planted cypress trees. 22 The report also details 16 points criticizing the building of MtoG at post-katrina 100-year protection standards. To summarize, the major points are: the levee alignment is too close to the open gulf and would thereby be threatened by surge and wave energy (in other words, if a big storm hits it will just get washed away), maintenance costs will be increased because it is to be built in area with poor soil and high subsidence, the project encourages risky development within its protection, the levee would create a funnel geometry which will amplify storm surge for the Laroze-Golden Meadow levee, post-katrina 100-year protection will require 3 times as much construction material as pre-katrina 100-year protection, and the levee alignment includes low density 22 8

development with reduced economic benefits. On August 13 th, 2009, CRCL filed objections to the USACE granting of Morganza-related permits. 23 One environmental group has also begun to take legal action to prevent the construction of MtoG. Save Our Wetlands, Inc (SOWL) has been a vocal opponent to MtoG, and in April 2008 the Tulane Law Clinic filed a complaint against the Terrebonne Levee and Conservation District on their behalf for the dredging associated with the construction of the J-1 reach of MtoG. 24 Terrebonne parish passed a one cent sales tax to raise funds for this levee construction, and the J-1 reach has now been completed. The complaint alleges that the Levee District began construction work without obtaining a permit from the USACE, as required by section 404 of the Clean Water Act, for which they may be liable for $32,500 in damages per day of construction (totaled at $24 million). 25 Interestingly, several state lawmakers have asked Governor Jindal to intervene in the case on the Levee District s behalf. 26 The Levee District contends that the obligation to acquire a permit before construction was unnecessary because the project was authorized by Congress and an Environmental Impact Assessment has been completed (which is currently undergoing review). Besides fiscal and environmental concerns, one of the most problematic aspects of the MtoG project is that several communities are being left out of the protection scheme. According to the Environmental Impact Study, The main decision factor affecting inclusion or exclusion in a hurricane protection system was the cost verses the benefits. Existing floodgates and levees 23 Press Release, Morganza Action Coalition, Residents Call on Outside Environmental Groups to Stop Delaying Construction of Levee System (Aug. 21, 2009), available at http://www.morganza.org/news.html. 24 Save Our Wetlands v. Terrebonne Levee & Conservation District, No. 90 345 (E.D. La. Filed Apr. 29, 2008). This suit has now been settled, where the Terrebonne Levee & Conservation District has agreed to meet the exact specifications for construction of the levee as set forth in the Morganza to the Gulf Environmental Impact Assessment. Save Our Wetlands v. Terrebonne Levee & Conservation District, No 08 2159 (E.D. La. 2009). 25 33 U.S.C. 1365(a)(1). 26 Nikki Buskey, Lawmakers Ask State for Help with Morganza Lawsuit, Houma Today (May 8, 2008), available at http://www.houmatoday.com/article/20080508/articles/805080326&tc=yahoo. 9

that could form parts of a complete system were used as starting points. There were areas where the costs would obviously be so great compared to the benefits that they were not included in the array of possible alternatives. An example is the Cocodrie area. 27 According to this statement, a cost-benefit analysis was used to determine which areas would be included into the protection scheme. The cost-benefit analysis is very problematic when applied to human conditions, because it is extremely difficult to quantify the value of a community, and even if a purely economic approach is taken, it is far easier to quantify the costs of building the system than it is to quantify the long-term benefits which may accrue. One marina owner in Point Aux Chene has been left out of the levee protection scheme, even though he has a growing charter business 28 this is just one example of the difficulties of using a cost-benefit analysis where it is difficult to assess what kinds of value may accrue over time, such as prospering businesses in the most seemingly unlikely places. The current MtoG levee alignment includes the Point Aux Chene region, which is curious considering the very sparse development that is in that particular reach. Part of the reason why protection would be extended here may be because of the recent focus which has been placed on the value of cultural heritage by the state s Master Plan within the cost-benefit analysis. The Point Aux Chene region is home to a group of Native Americans which are recognized by the state of Louisiana, but not by the federal government. 29 A second explanation may involve legal and political issues that could arise if the levee construction displaces Indian burial grounds, which are protected by the National Historic Preservation Act of 1966, the Native American 27 Final Programmatic Environmental Impact Statement, United States Army Corps of Engineers, Mississippi River & Tributaries Morganza, Louisiana to the Gulf of Mexico Hurricane Protection, 37 (2002) available at http://www.mvn.usace.army.mil/prj/mtog/downloads/fs_peis_full.pdf. 28 Nikki Bruskey, Marina Won t Be Protected by Morganza Levee System, Houma Today (Mar. 7, 2010), available at http://www.houmatoday.com/article/20100307/articles/100309466. 29 http://pactribe.tripod.com/id2.html. 10

Graves Protection and Repatriation Act of 1990, and the Archeological Resources Protection Act of 1979. 11