Tulane Environmental Law Summit

March 9, 2018 CLE Presentation

By: Blair Schilling

COASTAL REMEDIES POST-SLFPAE

A. BACKGROUND

Scientific studies performed in Louisiana about the vanishing coastline.

“The Louisiana Water Resources Research Institute in conjunction with the University of

New Orleans Geology Department worked on the Board of Regents project “Coastal Systems

Modeling: Linkage between Landloss and Hydrologic Processes. The parties involved were Dr.

Joseph N. Suhayda, Dr. Vibhas Aravamuthan, Nedra Korevec of LWRRI and Dr. Shea Penland

and Paul Connor of UNO Geology."

“The salt marsh is an important hurricane buffer, absorbing the energy of storm waves and

providing a water reservoir for storm waters.” (Gosselink et al. 1974).

“Coastal wetlands are barriers to storms and floods. Like inland wetlands, coastal marshes

can absorb and retain significant amounts of flood water from rivers. They can also absorb storm

water from the sea, as well as buffer inland areas from storm erosion. Thus their destruction can

deprive a coastal community of a valuable safeguard against hurricanes and winter storms.”

(Thurow, EPA, 1975)

“The marsh serves to protect man from the severity of storms by acting as a buffer. By

absorbing the enormous energy of storm waves and acting as a water reservoir for coastal storm

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waters, the marsh reduces the severity of storm damage and flooding farther inland...” (NOAA,

CZM FEIS 1980)

“Wetlands should be located outside those levees to buffer surge. Levees can directly protect

people and assets on ridges. The surrounding basin and estuary reduce surge heights and surge

energy, thereby reducing risk of damage to levees and providing a higher level of protection.”

(Lopez et al. 2008)

Penland, S., L. Wayne, L. D. Britsch, S. J. Williams, A. D. Beall, and V. C. Butterworth,

2000, Process classification of coastal land loss between 1932 and 1990 in the Mississippi River

delta plain, southeastern Louisiana: U.S. Geological Survey Open-File Report 00-418, map with

text.

“Environmental Impact of Produced Water Discharges in Coastal Louisiana,” Report to The

Louisiana Division of the Mid-Continent Oil and Gas Association (July, 1989)

Roberts & Blum (2009), projected land loss by 2100.

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B. CASE LAW

History of the cases that led to the recent federal court ruling that pipeline defendants have a

duty to maintain their canals.

I. Barasich v. Columbia Gulf Transmission Co., 467 F. Supp. 2d 676 (E.D. La. 2006)

(Vance, J.)

Opinion

ORDER

VANCE, District Judge.

Before the Court is defendants' consolidated motion to dismiss the above captioned cases for

nonjusticiability and for failure to state a claim upon which relief may be granted under Fed.R.Civ.P.

12(b)(6). For the following reasons, the Court DENIES defendants' motion as to justiciability and

GRANTS defendants' motion for failure to state a claim under Fed.R.Civ.P. 12(b)(6).

I. BACKGROUND

In the fall of 2005, Hurricanes Katrina and Rita swept ashore in Louisiana, causing billions of dollars

in economic losses, catastrophic destruction of property and substantial loss of life. This action seeks to hold

oil and gas producing companies and/or oil and gas pipeline companies accountable for their activities that the

plaintiffs allege contributed significantly to the storms' destructive impact in south Louisiana. The plaintiffs are

nine residents of Jefferson, Orleans, and St. Bernard Parishes. They assert that defendants damaged the

marshland that lies between Louisiana's habitable regions and the Gulf of Mexico, thereby weakening a

protective barrier against hurricanes and exposing Louisianans to the prospect of greater harm from these

storms. Plaintiffs seek to hold defendants liable for their activities in Louisiana's marshlands and recover for

the damages these activities caused.

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Initially, the plaintiffs filed two separate class actions, Barasich, et al v. Columbia Gulf Transmission

Co., et al, No. 05–4161, and Villa, et al v. Columbia Gulf Transmission Co., et al, No. 05–4569, in this district.

The Court consolidated these actions because they raise identical questions of law and fact. Plaintiffs have

since filed a joint amended complaint proposing to proceed on behalf of the following class of individuals:

All persons and/or entities, who/which have sustained injuries, loss, and/or damages as a result

of the enhanced impact of hurricane force winds and storm surges as a result of wetland loss

attributable to oil and gas exploration and/or production activities and who/which were residents of, or

owned properties and businesses in the following parishes west of the Louisiana/Mississippi state line:

St. Bernard, Orleans, Plaquemines, Jefferson, St. Tammany, *679 Tangipahoa, Livingston, St. John the

Baptist, St. Charles, Lafourche, Ascension, St. James, Assumption, Iberia, St. Martin, St. Mary and

Terrebonne.

(R. Doc. 28). In both actions, plaintiffs named two substantially similar classes of defendants.

The Barasich plaintiffs named a “Pipeline Class” and an “Exploration and Production Class,” while

the Villa plaintiffs named a “Pipeline Class” and an “Exploration Class.” The Court, for the sake of

convenience, will refer to these as the “pipeline class” and the “exploration class,” respectively.1

In their complaint, plaintiffs allege the following facts, taken as true for the purpose of this motion.

The marshlands of coastal Louisiana provide protection to the rest of the state from the winds and storm surge

brought by hurricanes. Over the course of many decades, defendants in the pipeline class have dredged canals

through these marshlands for the purpose of installing pipelines for the transportation of petroleum products,

and defendants in the exploration class have dredged canals to access and locate drill sites within the same

marshlands. The activities of the pipeline and exploration classes continue through today, with nearly 10,000

miles of oil and gas pipelines crisscrossing the south Louisiana marshlands. The plaintiffs allege that as a result

of the defendants' operations in south Louisiana, over one million acres of marshland have already been

destroyed, and millions more essentially decimated, depriving inland communities, such as the City of New

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Orleans and St. Bernard Parish, of their natural protection from hurricane winds and accompanying storm

surge.

More specifically, the plaintiffs allege that the defendants' dredging of the canals through south

Louisiana has harmfully altered the hydrology of the adjacent marshes by allowing salt water intrusion into the

marshlands, and creating spoil banks that limit the tidal and fresh water flows essential for distributing mineral

sediments, inorganic sediments, and organic matter to those areas. The effect of the increased exposure to salt

water and reduced exposure to fresh water is destruction of indigenous plant life. The plaintiffs allege that it is

this marsh vegetation that traps sediment, builds organic soils, and stabilizes the soil with a dense mat of live

roots. Without the marsh vegetation, plaintiffs allege that the root mat disappears, resulting in erosion of the

exposed soil and the eventual conversion of the marshlands to open water.

Additionally, the plaintiffs allege that the defendants, through their knowing failure to maintain their

canals, have allowed numerous breaks or cuts to develop and enlarge in the spoil banks, which has resulted in

further erosion and destruction of the marshlands. Plaintiffs allege that the water that flows through these

canals and into the adjacent marshes has sufficient energy to erode or break up underlying sediment and

organic material from beneath the root mat. According to the plaintiffs, the gradual destruction of the root mat

leads to the death of indigenous plant life, which facilitates erosion and eventually conversion of the

marshlands to open water.

In their Second Amended Complaint, filed jointly, the Barasich and Villa plaintiffs assert that as a

direct result of defendants' *680 actions in the Louisiana marshland, class members suffered personal injury

and/or death, property damage, and the loss of the wetlands' value as storm protection. They base their claims

for recovery on Louisiana Civil Code articles 667, 2315, and 2317, and ask for “all damages reasonable in the

premises, including restoration.” Defendants jointly filed a motion to dismiss plaintiffs' claims. Defendants

assert that dismissal is warranted on two grounds: 1) the subject matter of plaintiffs' action is nonjusticiable

because it concerns a political question, and 2) plaintiffs do not state a claim upon which relief may be granted

because they cannot prove the requisite elements for recovery as a matter of law under any available theory.

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II. LEGAL STANDARD

A. Motion to Dismiss Under 12(b)(6)

In a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court must accept all well-

pleaded facts as true and view the facts in the light most favorable to the plaintiff. See Baker v. Putnal,  75 F.3d

190, 196 (5th Cir.1996); American Waste & Pollution Control Co. v. Browning–Ferris, Inc.,  949 F.2d 1384,

1386 (5th Cir.1991). The Court must resolve doubts as to the sufficiency of the claim in plaintiff's

favor. Vulcan Materials Company v. City of Tehuacana,  238 F.3d 382, 387 (5th Cir.2001) . Dismissal is

warranted if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would

entitle him to relief. Id.; Piotrowski v. City of Houston,  51 F.3d 512, 514 (5th Cir.1995)  (quoting Leffall v.

Dallas Indep. Sch. Dist.,  28 F.3d 521, 524 (5th Cir.1994) ).

II. Board of Commissioners of Southeast Louisiana Flood Protection Authority v.

Tennessee Gas Pipeline Co., 850 F.3d 714 (5th Cir. 2017)

Opinion

*720 PRISCILLA R. OWEN, Circuit Judge:

The Board of Commissioners of the Southeast Louisiana Flood Protection Authority–East filed a lawsuit in

Louisiana state court against various companies involved in the exploration for and production of oil reserves

off the southern coast of the United States. The Board alleged that Defendants' exploration activities caused

infrastructural and ecological damage to coastal lands overseen by the Board that increased the risk of flooding

due to storm surges and necessitated costly flood protection measures. Defendants removed the case to federal

court, and the district court denied the Board's motion to remand, on the ground that the Board's claims

necessarily raise a federal issue. Defendants also moved to dismiss the case for failure to state a claim on

which relief can be granted, and the district court granted the motion. We affirm.

I

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In July 2013, the Board of Commissioners of the Southeast Louisiana Flood Protection Authority–East (the

Board) filed a lawsuit in Louisiana state court against ninety-seven entities (the Defendants) involved in the

exploration for and production of oil reserves off the southern coast of the United States. The Board, whose

purpose is “regional coordination of flood protection,”1 alleges that since the 1930s, coastal landscapes that

serve as a “first line of defense” against flooding (the Buffer Zone) have been suffering from rapid land loss.

The Board alleges that replacement of land in the Buffer Zone with water threatens the existing levee system

and imperils coastal communities. It further asserts that Defendants' oil and gas activities—primarily the

dredging of an extensive network of canals to facilitate access to oil and gas wells—has caused “direct land

loss and increased erosion and submergence in the Buffer Zone, resulting in increased storm surge risk.”

Attached to the complaint was a list of Defendants' names, agents, and addresses; a map depicting the levee

districts under the Board's purview; a list of the names and location information of wells operated by

Defendants; a list of the locations in the relevant levee districts subject to dredging permits and the permittees

benefitting thereunder; and a list of the locations and grantees of rights of way in the relevant levee districts.

The Board's asserted bases for recovery from Defendants include negligence, strict liability, natural servitude

of drain, public nuisance, private nuisance, and breach of contract as to third-party beneficiaries. The Board

describes the “highly costly but necessary remedial measures” that it has undertaken or will undertake to

protect against the increased storm surge risk. These measures include “abatement and restoration of the

coastal land loss at issue,” including backfilling and revegetating each canal dredged by Defendants; the joint

state-federal Hurricane and Storm Damage Risk Reduction System, some of the cost of which has been borne

by the Board; investigation and remediation of defects in the local levee systems to comply with relevant

certification standards; and “additional flood protection expenses,” including the construction of “safe houses”

for use by employees during dangerous flooding conditions.

The complaint describes “a longstanding and extensive regulatory framework under both federal and state law”

that protects against the effects of dredging activities and establishes the legal duties by which Defendants

purportedly are bound. It enumerates *721 four main components of this framework, including the Rivers and

Harbors Act of 1899 (RHA);2 the Clean Water Act of 1972 (CWA);3 “[r]egulations related to rights-of-way

granted across state-owned lands and water bottoms administered by the Louisiana Office of State Lands”; and

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the Coastal Zone Management Act of 1972 (CZMA)4 “and related Louisiana coastal zone regulations bearing

directly on oil and gas activities.” None of the individual claims relies on a cause of action created under

federal law, and the negligence, strict liability, and natural servitude claims explicitly rely on state law causes

of action.

The Board seeks “[a]ll damages as are just and reasonable under the circumstances,” as well as injunctive

relief requiring the backfilling and revegetating of canals, “wetlands creation, reef creation, land bridge

construction, hydrologic restoration, shoreline protection, structural protection, bank stabilization, and ridge

restoration.”

Defendants removed the case to federal court, asserting five separate grounds for federal jurisdiction. The

Board moved to remand, and the district court denied the motion, concluding that the Board's state law claims

“necessarily raise a federal issue, actually disputed and substantial, which a federal forum may entertain

without disturbing the congressionally approved balance of federal and state judicial

responsibilities.” Defendants moved to dismiss the case pursuant to Federal Rule of Civil Procedure 12(b)

(6) as preempted by federal law and barred under state law. The district court granted the motion with respect

to all of the Board's claims, concluding that none of the Board's stated grounds for relief constituted a claim

upon which relief could be granted under state law. The Board appealed.

II

1 2 3 4 5 6 We review an order denying remand to state court de novo.5 A federal court may exercise federal

question jurisdiction over any civil action that “arises under the federal constitution, statutes, or treaties.”6 A

federal question exists only where “a well-pleaded complaint establishes either that federal law creates the

cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question

of federal law.”7 However, “[t]he fact that a substantial federal question is necessary to the resolution of a

state-law claim is not sufficient to permit federal jurisdiction.”8 Only in a “ ‘special and small category’ of

cases” will federal jurisdiction exist when state law creates the cause of action.9 That limited category of

federal jurisdiction only exists where “(1) resolving a federal issue is necessary to resolution of the state-law

claim; (2) the federal issue is actually disputed; (3) the federal issue is substantial; and (4) *722 federal

jurisdiction will not disturb the balance of federal and state judicial responsibilities.”10 “[I]f a plaintiff files suit

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in state court alleging both federal and state claims arising out of the same controversy, the entire action may

be removed to federal court.”11

The district court concluded that three of the Board's claims necessarily raise federal issues: the negligence

claim, which purportedly draws its requisite standard of care from three federal statutes; the nuisance claims,

which rely on that same standard of care; and the third-party breach of contract claim, which purportedly is

based on permits issued pursuant to federal law.

A

The Board argues that the district court was incorrect to conclude that the nuisance and negligence claims

necessarily raise a federal issue, because although the state law claims “could turn to federal law for support,

federal law is not necessary for their resolution.” It points to this court's holding in MSOF Corp. v. Exxon

Corp. that an allegation that a facility was maintained “in violation of federal regulations as well as in

violation of state and local regulations” was not enough for the action to arise under federal law.12

Defendants dispute the Board's contention that the negligence or nuisance claims could be resolved solely as a

matter of state law; they note that although the negligence claim draws its cause of action from a Louisiana

statute, the “sole basis” for any standard of care is found in the federal regulatory scheme. Unlike in MSOF,

the Board is seeking a remedy—the backfilling of canals—that could not be required under any state law-

based conception of negligence, and accordingly the claim of necessity has a “federal substance.” Similarly,

Defendants argue that the nuisance claims posit an obligation not to make “unauthorized” changes or

alterations to levee systems—an imperative that they argue could only exist under federal law.

7The Board's negligence claim in fact requests relief for multiple distinct injuries and refers to multiple sources

of law that might establish a duty of care, and it is not the case that just because some of these sources are

drawn from state law and some from federal law that the two sources are redundant and therefore “alternative.”

The claims for negligence and strict liability in MSOF arose out of the alleged contamination of plaintiffs' land

with toxic chemicals, which undisputedly gave rise to a cause of action under state law.13 Here, however,

Defendants correctly point out that the Board's complaint draws on federal law as the exclusive basis for

holding Defendants liable for some of their actions, including for the “unauthorized alteration” of federal levee

systems and for dredging and modifying lands away from their “natural state.” Unless Louisiana state law

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requires persons engaged in oil and gas activities to restore dredged or modified areas to their “natural state” to

the identical extent that the CWA purportedly does, then a court would not be able to establish the magnitude

of any potential liability without construing that Act. The same is true of the alleged obligation not to alter

levee systems built by the United States, which the complaint draws from the RHA. The Board points out that

Louisiana law sets *723 forth apparently similar requirements, such as the provision stating that “[m]ineral

exploration and production sites shall be cleared, revegetated, detoxified, and otherwise restored as near as

practicable to their original condition upon termination of operations to the maximum extent

practicable.”14 But the “maximum extent practicable” in turn is defined as a regulatory determination that

entails “a systematic consideration of all pertinent information regarding the use, the site and the impacts of the

use ... and a balancing of their relative significance.”15 No Louisiana court has used this or any related

provision as the basis for the tort liability that the Board would need to establish, and the Louisiana Supreme

Court has explicitly rejected the prospect that a statutory obligation of “reasonably prudent conduct” could

require oil and gas lessees to restore the surface of dredged land.16

The absence of any state law grounding for the duty that the Board would need to establish for the Defendants

to be liable means that that duty would have to be drawn from federal law. Supreme Court precedent is clear

that a case arises under federal law where “the vindication of a right under state law necessarily turn[s] on

some construction of federal law,”17 and the Board's negligence and nuisance claims thus cannot be resolved

without a determination whether multiple federal statutes create a duty of care that does not otherwise exist

under state law.

B

The Board argues that even if its claims necessarily raise federal issues, those issues are not “actually

disputed.” But its argument draws entirely on district court cases in which the parties did not disagree with

respect to the proper interpretation of federal statutes unrelated to those raised in the Board's

complaint.18 Defendants refute this argument by pointing out that they do not concede, for example, that the

RHA establishes liability for otherwise permitted activity that might have the effect of altering United States-

built levee systems; that the CWA requires them to restore dredged canals to their “natural state”; or that they

10

are required to backfill canals that they have dredged pursuant to federal permits. These are legal, not factual,

questions, and the parties dispute them.

C

8 9 For a federal issue to give rise to federal jurisdiction, “it is not enough that the federal issue be significant to

the particular parties in the immediate suit.... The substantiality inquiry under Grable looks instead to the

importance of the issue to the federal system as a whole.”19 *724 The Supreme Court has suggested that an

issue can be important for many reasons: because state adjudication would “undermine ‘the development of a

uniform body of [federal] law’ ”;20 because the case presents “a nearly pure issue of law” that would have

applications to other federal cases;21 or because resolution of the issue has “broad[ ] significance” for the

federal government.22“The absence of any federal cause of action ... [is] worth some consideration in the

assessment of substantiality.”23

The district court concluded that the substantiality requirement was met in this case, both because the relevant

federal statutes plainly regulate “issues of national concern” and because the case affects “an entire industry”

rather than a few parties. Moreover, it called the lawsuit “a collateral attack on an entire regulatory scheme ...

premised on the notion that [the scheme] provides inadequate protection.” The Board disagrees and argues that

it raises that regulatory scheme “to support the obligations created under state law.”

10The Board is correct that the federal regulatory scheme is only relevant to its claims insofar as the scheme

provides the underlying legal basis for causes of action created by state law. But of course Defendants dispute

whether the federal scheme provides such basis at all. The dispute between the parties does not just concern

whether Defendants breached duties created by federal law; it concerns whether federal law creates such

duties. As Defendants point out, the validity of the Board's claims would require that conduct subject to an

extensive federal permitting scheme is in fact subject to implicit restraints that are created by state law.24 The

implications for the federal regulatory scheme of the sort of holding that the Board seeks would be significant,

and thus the issues are substantial.

D

In Singh, we considered whether the area of law relevant to the plaintiff's claims “has traditionally been the

domain of state law,” and in that case we concluded that “federal law rarely interferes with the power of state

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authorities to regulate” that area of law.25 The Supreme Court has held *725 that the balance of federal and

state judicial responsibilities would be disturbed by the exercise of federal jurisdiction where such exercise

would “herald[ ] a potentially enormous shift of traditionally state cases into federal courts.”26 Here, the district

court held that no such shift would arise, noting that the Board relies on federal law to establish liability and

that resolution of its claims could affect coastal land management in multiple states as well as the national oil

and gas market.

The Board points out that each of the three federal statutes that forms the basis of its claims contains a savings

clause, which it argues supports an inference that exercising federal jurisdiction would disrupt the balance

struck by Congress.27 But as Defendants point out, these savings clauses act to preserve existing state law

claims; they do not confine consideration of lawsuits based on federal law to state courts. They also argue that

the relief sought by the Board would require federal approval to be implemented, and thus it cannot be that the

lawsuit is a matter only of state concern.28

In Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, the Supreme Court explicitly

rejected “[a] general rule of exercising federal jurisdiction over state claims resting on federal ... statutory

violations,” and it also rejected the proposition that “any ... federal standard without a federal cause of action”

is enough to support federal jurisdiction over a lawsuit.29 However, the Court nonetheless held that federal

jurisdiction was proper in the state quiet title action before it, because “it is the rare state quiet title action that

involves contested issues of federal law,” and thus “jurisdiction over actions like Grable's would not materially

affect, or threaten to affect, the normal currents of litigation.”30

The Grable Court was persuaded that “the absence of threatening structural consequences” was relevant to its

inquiry, and the same logic militates in favor of federal jurisdiction here.31 If the federal statutes at issue in this

case do create duties and obligations under the laws of various states, then it might be inappropriate for federal

question jurisdiction to obtain every time a state-law claim is made on that basis. But where, as here, one of the

primary subjects of dispute between the parties is whether the federal laws in question may properly be

interpreted to do that at all, the implications for the federal docket are less severe.32 Relatedly, the scope and

limitations of a complex federal regulatory framework are at stake in this case, and disposition of the question

12

whether that framework may give rise to state law claims as an initial matter will ultimately have implications

for the federal docket one way or the other.

E

Because we conclude that the Board's negligence and nuisance claims necessarily raise federal issues sufficient

to justify federal *726jurisdiction, we do not reach the question whether the third-party breach of contract

claim also does so. We also do not reach the question whether maritime jurisdiction provides an independent

basis for federal jurisdiction in this case.

III

11 12 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’ ”33 “[T]he tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of

a cause of action, supported by mere conclusory statements, do not suffice.”34

A

13 14 15 16 To state a claim for negligence under Louisiana law, the Board must establish, inter alia, that

Defendants “had a duty to conform [their] conduct to a specific standard.”35 The extent of a duty is “a question

of policy as to whether [a] particular risk falls within the scope of the duty.”36 A court must determine

“whether the enunciated rule or principle of law extends to or is intended to protect this plaintiff from this type

of harm arising in this manner.”37 Louisiana courts consider various factors to ascertain the scope of this

protection, including “whether the imposition of a duty would result in an unmanageable flow of litigation;

ease of association between the plaintiff's harm and a defendant's conduct; economic, social, and moral

implications on similarly situated parties; the nature of defendant's activity; the direction in which society and

its institutions are evolving; and precedent.”38

The district court held that the requirements imposed by the RHA, the CWA, and the CZMA “do not extend to

the protection of [the Board].” It stated that (1) the primary purpose of the RHA is to ensure that waterways

remain navigable, and the provision therein that makes it illegal for any person to damage a levee did not

impose a duty to protect the Board; (2) the CWA is meant to restore and maintain the integrity of the United

States water supply, and the issuance of permits for the discharge of dredged or fill materials under it does not

13

establish private duties; and (3) the issuance of permits licensing oil and gas exploration activities under the

CZMA does not impose private duties to prevent environmental damage. The district court also denied that

Louisiana state law creates a duty of care by which the Board is bound, because in the Fifth Circuit case that

arguably suggested as much, Terrebonne Parish School Board v. Columbia Gulf Transmission Co.,39 at issue

was whether “a direct loss of acreage ... due to erosion” breached “[t]he duty of two specific pipeline

companies to maintain canals on specific property vis a vis a specific lessor.”

*727 The Board argues that because the three federal statutes “set forth clear standards of care relevant to the

defendants' conduct,” and because the complaint points to the content of those statutes, the Board has stated a

claim. It also points to Louisiana statutes that require coastal uses “to avoid to the maximum extent

practicable” detrimental changes to sediment transport processes and coastal erosion, as well as “increases in

the potential for flood, hurricane and other storm damage, or increases in the likelihood that damage will occur

from such hazards.”40

Defendants note both that the Board has not explained how the federal statutes it enumerates serve to create a

duty of care under state law and that the Board does not appear to allege that Defendants have caused any

actual loss, because the Board states only that Defendants' dredging activities have weakened coastal lands

such that “flood protection costs” have increased. They also point to Terrebonne Parish School Board v.

Castex Energy, Inc., in which the Louisiana Supreme Court found no implied duty for a mineral right lessee to

restore coastline, even where the lessee was obligated by statute to “develop and operate the property leased as

a reasonably prudent operator for the mutual benefit of himself and his lessor.”41 Finally, they argue that the

line of Louisiana Supreme Court cases suggesting that imposing liability for any indirect economic harm

caused by a wrongful act “could create liability ‘in an indeterminate amount for an indeterminate time to an

indeterminate class' ”42 means that here, where the damaged party has incurred only additional costs and has

not suffered any loss to property it owns, Defendants could not have been bound to protect the Board from the

losses it sustained.

17The district court was correct that neither federal law nor Louisiana law creates a duty that binds Defendants

to protect the Board from increased flood protection costs that arise out of the coastal erosion allegedly caused

by Defendants' dredging activities. Although it is true that this court “has often held that violation of a Federal

14

law or regulation can be evidence of negligence,”43 it has declined to do so where the “principal purpose” of

the relevant statutes was not to protect the plaintiff.44 The Supreme Court's determination that the RHA “was

obviously intended to prevent obstructions in the Nation's waterways” and that “a principal beneficiary of the

Act, if not the principal*728 beneficiary, is the Government itself”45 indicates that the Board's asserted ground

for relief on the basis of the RHA—that the Act makes it unlawful to impair in any manner, inter alia, a levee

built by the United States—may not properly be brought to bear on private parties by a municipal authority.

18Similar logic applies in the context of the CWA. That the CWA, its attendant regulations, and permits issued

thereunder might require Defendants to maintain canals and to mitigate the environmental impact of their

dredging activities might bear some relation to the general purpose of the Act, which is “to restore and

maintain the chemical, physical, and biological integrity of the Nation's waters.”46 But with respect to the

permits issued pursuant to the CWA that purportedly impose various maintenance requirements on

Defendants, the few federal regulatory provisions that the Board cites as evidence of the contents of such

permits do nothing to extend the reach of any implied duty to the protection of local government entities.

19The Board's claims with respect to the CZMA are more non-specific, and even if the Board is correct to state

in its complaint that the Act imposes “a litany of duties and obligations expressly designed to minimize the

adverse ... environmental effects associated with” Defendants' activities, those duties do not protect the Board,

in light of the Supreme Court's acknowledgment that the Act “has as its main purpose the encouragement and

assistance of States in preparing and implementing management programs to preserve, protect, develop and

whenever possible restore the resources of the coastal zone of the United States.”47 The Act also states that one

of its policies is to provide for “the management of coastal development to minimize the loss of life and

property caused by improper development” in vulnerable areas.48 But the Board has not pointed to any wrong

committed by Defendants that even arguably serves as a basis for liability.

20The complaint is equally vague in its references to applicable state regulations, and although the Board now

notes that certain state statutes have the declared policy of serving ends similar to those supported by the above

federal statutes, there is little evidence that any of the cited provisions create private liability. The best source

of law for the proposition is Terrebonne Parish, in which the Fifth Circuit denied summary judgment to

defendants who allegedly had breached a private duty to protect canals against breaches and widening.49 But

15

that case was heavily dependent on the relationship between the litigants as parties to a

servitude *729 agreement.50 That case did not involve a negligence claim and certainly did not purport to

extract a general duty of care from state or federal regulatory law. Additionally, as Defendants point

out, Terrebonne Parish addressed whether a company that had dredged a canal was liable to the owners of

adjacent land for the erosion caused by the widening of the canal;51 it did not address the indirect effects that

the canal had on other land in the region by virtue of its effects on the ecosystem. The Board thus has failed to

establish that Defendants breached a duty of care to it under the facts alleged, and accordingly the district court

properly dismissed the negligence claim.

B

21 22 Under Louisiana law, a claim for strict liability requires that a duty of care was breached, just as a

negligence claim does.52There is essentially no difference between the two types of claim under Louisiana

law,53 and to the extent any difference existed during the time period relevant to this lawsuit, that difference

was only that recovery on a theory of strict liability before 1996 did not require that the defendant had

knowledge of its breach of duty.54 Because the Board has not stated a claim that Defendants owed it a duty of

care, its strict liability claim fails along with its negligence claim.

C

The complaint alleges that the lands dredged by Defendants constitute “dominant estates” under the Louisiana

Civil Code that carry a natural servitude of drain over the “servient estates” owned by the Board, because

“water naturally flows” from Defendants' property to the Board's property.55 It further alleges that “Defendants

have rendered the natural servitude of drain more burdensome in violation of Louisiana Civil Code article

656.”56 The district court dismissed the claim on the ground that there is no basis in law for “finding that a

natural servitude of drain may exist between non-adjacent estates with respect to coastal storm surge.”

The Board argues that this conclusion was incorrect, noting that Louisiana Civil Code article 648 provides that

“[n]either contiguity nor proximity of the two estates is necessary for the existence of a ... servitude. It suffices

that the two estates be so located as to allow one to derive *730 some benefit from the charge on the other.”

The Board points to the allegations in its complaint that state that Defendants' actions have “directly altered

and continue to alter the natural course, flow, and volume of water” from Defendants' lands to coastal lands.

16

Defendants respond that the Board's allegations do not amount to a claim that Defendants' property is “situated

above” the Board's property, as would be required for the existence of a servitude of drain under Louisiana

Civil Code Article 655. Moreover, even though the complaint need not allege that the properties are adjacent

or near to each other, Defendants point out that there need at least be some allegation that the properties are

“close enough that surface water naturally flows from one to another.” Even more problematic, Defendants

note, is the fact that “storm surge is not surface water,” and thus the fact that the Board is most concerned with

damage caused by storms and hurricane-related flooding belies its claim that damage is being caused by the

flow of water onto its property from some other particular property.

23The explanation of the natural servitude claim contained in the complaint does little more than recite the

legal requirements of such a claim. It does not name or describe the location of any of the relevant properties,

and it does not explain the properties' relation to each other, other than by way of reciting the circumstances of

any natural servitude claim. It does not specify which properties constitute the servient and dominant estates,

and it therefore cannot allege that any particular property receives naturally flowing surface waters from any

other. The Board says that Exhibits B through G to its claim exhibit a “wealth of specificity” on these

questions, but the exhibits merely comprise a map indicating the location of the levee districts of the Southeast

Louisiana Flood Protection Authority; the names and serial numbers of wells operated by Defendants;

descriptions of the locations of wells subject to Defendants' dredging permits; and descriptions of the locations

subject to Defendants' right-of-way permits. Because the Board does not argue that every single one of the

hundreds of listed locations constitutes a dominant estate, it must intend only to allege that some of those

locations are dominant estates. However, it has not made such an allegation. Another possibility is that its

argument is that Defendants' actions have altered the flow of water into certain bodies of water, which in turn

poses a storm surge risk to the lands the Board oversees. But this would hardly constitute “[a]n estate situated

below ... receiv[ing] the surface waters that flow naturally from an estate situated above,”57 and thus the

district court properly dismissed the servitude of drain claim.

D

Below and here, the parties analyzed both the public and private nuisance claims as arising under Louisiana

Civil Code article 667, which provides that “[a]lthough a proprietor may do with his estate whatever he

17

pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his

own, or which may be the cause of any damage to him.”58 For actions accruing after 1996, such proprietor “is

answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have

known that his works would cause damage, that the damage could have been prevented by the exercise of

reasonable care, and that he failed to exercise such reasonable *731 care.”59 The district court held that the

Board's claims brought under this statute fail because the Board did not sufficiently allege in its complaint that

it is a “neighbor” of any of Defendants' property. The Fifth Circuit has noted that to bring an action

under Article 667, “[a] plaintiff must have some interest in an immovable near the defendant-proprietor's

immovable.”60

24The lack of specificity that plagues the Board's servitude claim also makes its nuisance claim little more

than a restatement of Louisiana law. The complaint states generally that Defendants have “dredged a network

of canals to access oil and gas wells,” and that this and other oil and gas activity have damaged Louisiana's

coast. Although the Board is correct to point out that “there is no rule of law compelling ‘neighbor’ to be

interpreted as requiring a certain physical adjacency or proximity,”61 the Fifth Circuit has established that a

complaint nonetheless must establish some degree of propinquity, so as to substantiate the allegation that

activity on one property has caused damage on another.62 The Board is thus incorrect to interpret the relevant

law to require nothing more than a “causal nexus” between the offending property and the damage done, and in

the absence of allegations that the relevant properties were near to each other, the Board has not stated a claim

for nuisance.

* * *

For the foregoing reasons, the district court's dismissal of the Board's claims is AFFIRMED.

III. Vintage Assets, Inc. v. Tennessee Gas Pipeline Co., 2017 WL 3601215 (E.D. La.

8/22/2017), 2017 WL 3706314 (E.D. La. 8/28/2017) (Milazzo, J.)

Opinion

18

ORDER AND REASONS

SECTION: “H”

JANE TRICHE MILAZZO, UNITED STATES DISTRICT JUDGE

*1 Before the Court are Defendants Tennessee Gas Pipeline Company, LLC, Southern Natural Gas Company,

LLC, High Point Gas Transmission, LLC, and High Point Gas Gathering, LLC's Motion for Partial Summary

Judgment to Limit Remedies for Contract Claims (Doc. 110); Motion for Partial Summary Judgment

Dismissing Claims for Restoration of State-Owned Water Bottoms (Doc. 115); and Motion for Partial

Summary Judgment Dismissing Claims for Restoration or Damages to Property Within the Rights-of-Way

(Doc. 114). For the following reasons, the Motions are DENIED.

BACKGROUND

Between 1953 and 1970, Defendants' predecessors received eight right-of-way servitudes, ranging from 100 to

175 feet, crossing various portions of Plaintiffs' property, which authorized the construction and operation of

pipelines and dredge canals. The servitude agreements allowed Defendants to lay the pipelines in canals “not

to exceed 40 [or in some cases 65] feet in width.” Plaintiffs1 allege that Defendants failed to maintain these

canals, resulting in erosion and damage to their property. It is undisputed that the widths of the canals now far

exceed that which was established by the servitude agreements. Plaintiffs brought state law claims for trespass,

breach of contract, and negligence. As a result of a series of summary judgment motions, this Court dismissed

Plaintiffs' tort and trespass claims and granted summary judgment on some of its breach of contract claims.

The Court held that Defendants had breached their duty to maintain the canals. Plaintiffs seek compensatory

damages and injunctive relief in the form of abatement and restoration. Before the Court are now a series of

summary judgment motions by Defendants asking this Court to dismiss Plaintiffs' request for remediation and

limit their damages for a number of reasons. This Court will consider each motion in turn.

LEGAL STANDARD

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on

file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.”2 A genuine issue of fact exists only “if the evidence

is such that a reasonable jury could return a verdict for the nonmoving party.”3

19

In determining whether the movant is entitled to summary judgment, the Court views facts in the light most

favorable to the non-movant and draws all reasonable inferences in his favor.4 “If the moving party meets the

initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving

party to produce evidence or designate specific facts showing the existence of a genuine issue for

trial.”5 Summary judgment is appropriate if the non-movant “fails to make a showing sufficient to establish the

existence of an element essential to that party's case.”6 “In response to a properly supported motion for

summary judgment, the non-movant must identify specific evidence in the record and articulate the manner in

which that evidence supports that party's claim, and such evidence must be sufficient to sustain a finding in

favor of the non-movant on all issues as to which the non-movant would bear the burden of proof at

trial.”7“We do not ... in the absence of any proof, assume that the nonmoving party could or would prove the

necessary facts.”8 Additionally, “[t]he mere argued existence of a factual dispute will not defeat an otherwise

properly supported motion.”9

LAW AND ANALYSIS

A. Motion for Partial Summary Judgment to Limit Available Remedies for Contract Claims

*2 In their first Motion, Defendants seek to limit Plaintiffs' contract claim remedies in two ways: (1) they

argue that the clear terms of the servitude agreements do not allow the remedy of restoration, and (2) they

argue that, pursuant to Louisiana law, Plaintiffs' damages are limited to the value of the land lost.

As to the first argument, Defendants contend that the clear and unambiguous language of the contracts forestall

an award requiring restoration or backfilling of the canals. They argue that because the servitude agreements

give Defendants the option to leave the canals “open,” the contracts do not require either remedy. They argue

that Plaintiffs cannot obtain specific performance for an obligation that was never required by the contracts.

This Court has already held that the servitude agreements still at issue are ambiguous and evince a failure of

the parties to contemplate the effects of erosion.10 This Court applied suppletive law to hold that Defendants

had a duty to maintain the canals to prevent the aggravation of the servient estate.11 Because the agreements

did not contemplate erosion, they certainly did not contemplate remediation, and the agreements' failure to

provide for such a remedy is therefore unsurprising. Defendants do not cite to any provision of suppletive law

forestalling such a remedy.

20

Second, Defendants seek to limit Plaintiffs' compensatory damages to the fair market value of the land lost.

Under Louisiana law, “[d]amages are measured by the loss sustained by the obligee and the profit of which he

has been deprived.”12 Defendants argue that in this matter the “loss sustained by the obligee” is the land that

was eroded by their failure to maintain the canals. They argue then that Plaintiffs' damages should be limited to

the fair market value of the land that was eroded. Indeed, the Louisiana Supreme Court has held that when

immovable property is damaged by tortious conduct, “damages are measured only by the difference between

the value of the property before and after the harm” if “the cost of restoring property in its original condition is

disproportionate to the value of the property or economically wasteful, unless there is a reason personal to the

owner for restoring the original condition or there is a reason to believe that the plaintiff will, in fact, make the

repairs.”13 The Louisiana Supreme Court has also expressly held, however, that damages to immovable

property under a breach of contract claim are not governed by this rule.14 In Corbello v. Iowa Productions, the

Louisiana Supreme Court held that when property is damaged pursuant to a breach of contract, the

measurement of damages is not limited to the value of the property lost but is instead governed by the

contract.15 Defendants have not cited this Court to any case that calls into question the Court's ruling

in Corbello. Accordingly, this Court agrees with Plaintiffs that the law does not limit their recovery to the

value of the land lost. Instead, an award of damages shall be governed by the terms of the agreements and the

good or bad faith of Defendants.

*3 Indeed, Plaintiffs argue that Defendants' breach was in bad faith, entitling them to greater

damages. Louisiana Civil Code article 1996states that “[a]n obligor in good faith is liable only for the damages

that were foreseeable at the time the contract was made,” while article 1997 states that “[a]n obligor in bad

faith is liable for all the damages, foreseeable or not, that are a direct consequence of his failure to perform.”

Accordingly, Plaintiffs contend that they are entitled to all damages that are a direct consequence of the

Defendants' bad faith breach. Defendants argue, however, that Plaintiffs have never alleged that Defendants

acted in bad faith, and they therefore cannot raise this argument for the first time in opposition to a motion for

summary judgment. This Court agrees. Plaintiffs' Complaint, Amended Complaint, and Second Amended

Complaint do not contain any allegations of an “intentional and malicious failure to perform.”16 Plaintiffs'

allegations are therefore insufficient to put Defendants on notice of such a claim.17 Accordingly, Plaintiffs'

21

damages award will be governed by the good faith standard of foreseeability. The foreseeability of damages at

the time the contract was made is an issue of fact, the resolution of which is inappropriate at the summary

judgment stage. Defendants' Motion is therefore denied.

B. Motion for Partial Summary Judgment Dismissing Claims for Restoration of State-Owned Water

Bottoms

Defendants next argue that Plaintiffs' claims for restoration should be dismissed because Plaintiffs no longer

own the portions of their property that have eroded into open water. Defendants argue that when formerly

private land has been encroached upon by erosion such that it now forms part of the bed of a navigable water

body, it becomes a public thing and is the property of the State. They argue that because the canals at issue

have eroded into open water, that land now belongs to the State, and Plaintiffs have no right to seek its

restoration. Defendants also point out that the State has granted oyster leases with respect to some of these

areas.

At the outset, the parties dispute who has the burden of proof with respect to this issue. On one hand,

Defendants claim that Plaintiffs bear the burden of proof to show ownership as one of the elements of their

claims. On the other, Plaintiffs allege that the burden lies with Defendants because they are asserting the

State's ownership through erosion as an affirmative defense. In this Court's view, Plaintiffs have submitted title

documents that establish ownership of the land at issue. Defendants would now have Plaintiffs further prove

that ownership has not been lost in their case-in-chief. This Court finds that Plaintiffs have already carried their

burden to show ownership. If Defendants claim that Plaintiffs have lost ownership of their land, they must

come forth with competent evidence to establish that fact. Under Louisiana law, “[a]n affirmative defense

raises a new matter, which assuming the allegations in the petition are true, constitutes a defense to the

action.”18 As such, Defendants assert an affirmative defense on which they must carry the burden.19 This Court

finds that Defendants have failed to do so.20

*4 First, Defendants fail to present any argument or evidence regarding the classification of the body of water

into which Plaintiffs' land is alleged to have eroded. Whether Plaintiffs' land has eroded into a river, a lake, or

the sea affects the boundary between public and private land and is an issue of fact inappropriate for summary

judgment.21 Second, Defendants make no effort to show that the body of water into which Plaintiffs' land

22

eroded is a “natural navigable water body” such that its bottom is owned by the State.22 This too is an issue of

fact inappropriate for resolution at the summary judgment stage. Third, the parties dispute the effect of the

State's grant of oyster leases on the property, however, neither has presented any evidence regarding what, if

any, investigation took place regarding ownership of the land prior to the issuance of those leases.

Accordingly, this Court holds that material issues of fact and the absence of pertinent information preclude

summary judgment on this issue.

As an aside, however, this Court notes its distaste for Defendants' argument. Defendants argue that, even if

they breached their duty to maintain the canals so severely that parts of Plaintiffs' property have eroded into

open water, they should not now be required to repair that damage because Plaintiffs have lost ownership of

their land (thanks to the erosion allegedly caused by Defendants' actions).23 Defendants' argument, whether

legally sound or not, is inequitable at best and offensive at worst. Indeed, “no court was ever organized which

would knowingly permit a litigant to profit by his own wrong.”24 Luckily for Defendants, however, “[t]he

existence of positive law on the subject precludes the application of equitable concepts.”25

C. Motion for Partial Summary Judgment Dismissing Claims for Restoration or Damages to Property

Within the Rights-of-Way

Finally, Defendants argue that Plaintiffs should not be permitted to recover damages or remediation for the

portions of damaged land within the boundaries of the rights-of-way. Defendants argue that as the dominant

estate holder, they have the “right to use the servitude in favor of [their] estate along with any rights which

may be accessory to the use of the servitude.”26 They argue that an award of restoration or damages for

property within the rights-of-way would interfere with Defendants' use of the servitudes.

Defendants also correctly point out, however, that the “use and extent” of the property inside the rights-of-way

are “regulated by the title by which they are created.”27 This Court has already held that the servitude

agreements still at issue contain a duty to maintain the canals by function of suppletive law.28 It must now

determine the practical effect of that holding. A duty to maintain the canals practically requires Defendants to

maintain the canals at the width of their initial construction. All of the parties agree that the “not to exceed”

widths provided for in the servitude agreements—which call for “canals not to exceed 40 [or in some cases 65]

feet in width”—govern at least the width of the canals at construction. Therefore, because suppletive law

23

imposes upon Defendants a duty to maintain the canals and the servitude agreements provide for the width of

their initial construction, Defendants have a duty to maintain the canals at the “not to exceed” widths provided

for in each servitude agreement. Defendants do not point to any contract provision or suppletive law that

would prevent Plaintiffs from seeking damages for the breach of this duty simply because some of the damage

occurred within the rights-of-way. Indeed, the case law relied on by Defendants does little to persuade this

Court.

*5 Defendants cite to a string of easily distinguishable cases, which they assert stand for the proposition that

Plaintiffs cannot interfere with their use of the rights-of-way. First in Jackson v. Jackson, a landowner alleged

that her neighbors had trespassed on her land when they dug a new ditch.29 The Louisiana First Circuit Court of

Appeal found that no trespass had occurred because the ditch had been built within an existing right-of-way. A

dedication had created the right-of-way “for the perpetual use of the public for street purposes, including

rights-of-way for the installation of water mains ... and other public utilities over, through, upon, under and

across same.”30 The court found that “[t]he wording of this dedication is broad enough to encompass the

drainage ditch and culverts installed by the developers.”31 Rather than support Defendants' position, the court's

reasoning confirms that the use and extent of a servitude is governed by the title by which it was created. The

right-of-way at issue in Jackson provided for the installation of public utilities and therefore the developers

were not liable for installing such. Here, the servitude agreements provide for canals of a certain

width. Jackson does not support a holding that Defendants cannot be liable for the full damage caused by the

breach of that obligation.

In Accardo v. Chenier Property Partners, LLC, the court considered whether St. Tammany Parish had

committed a taking when it expanded a drainage ditch and removed some trees located within a drainage

servitude.32 The Parish had the authority under state law to construct and maintain drainage ditches as it “may

deem necessary.”33 The Louisiana First Circuit Court of Appeal held that no taking had occurred because the

widening of the drainage ditch and tree removal occurred within the boundaries of the servitude and therefore

the plaintiffs could not show a substantial interference with the free use and enjoyment of their

property.34 Setting aside the fact that no taking is at issue here, the facts of this case are equally distinguishable.

Here, Defendants do not have authority under the law or servitude agreements to widen the canals as they

24

deem necessary. Indeed, the servitude agreements require the canals to be constructed and maintained at a

certain width. Accardo too supports the idea that the dominant estate's rights within a right-of-way are

governed by the title by which it was created.

Accordingly, even the cases cited by Defendants support the premise that the extent and use of the servitudes

are governed by the servitude agreements.35 By operation of suppletive law, those agreements impose on

Defendants the duty to maintain the canals at the “not to exceed” widths designated therein. Defendants' right

to use the servitudes does not trump the obligations created by the servitude agreements and certainly does not

give Defendants the right to act with impunity as long as their actions occur within the bounds of the rights-of-

way. Defendants have not given this Court any reason to restrict Plaintiffs' damages to those that occurred

outside of the rights-of-way or to prevent Plaintiffs from recovering for the full extent of the damage caused by

Defendants' breach. A holding in Defendants' favor would lead to an absurd result in which Defendants could

breach the servitude agreements with limited consequence, and Plaintiffs would be powerless to enforce the

obligation to maintain the canals at the “not to exceed” widths. Accordingly, Defendants' Motion is denied.

CONCLUSION

For the foregoing reasons, Defendants' Motions for Partial Summary Judgment are DENIED.

25

C. LAWS & REGULATIONS

Relevant laws and regulations imposing a duty on individuals to maintain their canals.

I. Rivers and Harbors Act of 1899

Section 9 of this Act, Rivers and Harbors Appropriation Act of 1899 (33 U.S.C. 403;

Chapter 425, March 3, 1899; 30 Stat. 1151), commonly known as the Rivers and

Harbors Act of 1899, prohibits the construction of any bridge, dam, dike or causeway

over or in navigable waterways of the U.S. without Congressional approval.

Administration of section 9 has been delegated to the Coast Guard. Structures

authorized by State legislatures may be built if the affected navigable waters are

totally within one State, provided that the plan is approved by the Chief of Engineers

and the Secretary of Army (33 U.S.C. 401).

Under section 10 of the Act, the building of any wharfs, piers, jetties, and other

structures is prohibited without Congressional approval, and excavation or fill within

navigable waters requires the approval of the Chief of Engineers. Service concerns

include contaminated sediments associated with dredge or fill projects in navigable

waters.

Authority of the Corps of Engineers to issue permits for the discharge of refuse matter

into or affecting navigable waters under section 13 of the 1899 Act (33 U.S.C. 407; 30

Stat. 1152) was modified by title IV of P.L. 92-500, October 18, 1972, the Federal

Water Pollution Control Act Amendments of 1972 (33 U.S.C. 1341-1345; 86 Stat.

26

877), as amended, which established the National Pollutant Discharge Elimination

System Permits.

The Fish and Wildlife Coordination Act (16 U.S.C. 661-667e; 48 Stat. 401), as

amended, provides authority for the U.S. Fish and Wildlife Service to review and

comment on the effects on fish and wildlife of activities proposed to be undertaken or

permitted by the Corps of Engineers.

<https://www.fws.gov/laws/lawsdigest/riv1899.html>

II. Clean Water Act (1972)

The Federal Water Pollution Control Act of 1948 was the first major U.S. law to address

water pollution. Growing public awareness and concern for controlling water pollution

led to sweeping amendments in 1972. As amended in 1972, the law became commonly

known as the Clean Water Act (CWA).

The 1972 amendments:

Established the basic structure for regulating pollutant discharges into the waters of the

United States.

Gave EPA the authority to implement pollution control programs such as setting

wastewater standards for industry.

Maintained existing requirements to set water quality standards for all contaminants in

surface waters.

27

Made it unlawful for any person to discharge any pollutant from a point source into

navigable waters, unless a permit was obtained under its provisions.

Funded the construction of sewage treatment plants under the construction grants

program.

Recognized the need for planning to address the critical problems posed by nonpoint

source pollution.

Subsequent amendments modified some of the earlier CWA provisions. Revisions in

1981 streamlined the municipal construction grants process, improving the capabilities of

treatment plants built under the program. Changes in 1987 phased out the construction

grants program, replacing it with the State Water Pollution Control Revolving Fund,

more commonly known as the Clean Water State Revolving Fund. This new funding

strategy addressed water quality needs by building on EPA-state partnerships.

Over the years, many other laws have changed parts of the Clean Water Act. Title I of the

Great Lakes Critical Programs Act of 1990, for example, put into place parts of the Great

Lakes Water Quality Agreement of 1978, signed by the U.S. and Canada, where the two

nations agreed to reduce certain toxic pollutants in the Great Lakes. That law required

EPA to establish water quality criteria for the Great Lakes addressing 29 toxic pollutants

with maximum levels that are safe for humans, wildlife, and aquatic life. It also required

EPA to help the States implement the criteria on a specific schedule

<https://www.epa.gov/laws-regulations/history-clean-water-act>

III. Coastal Zone Management Act (1972)

28

The U.S. Congress recognized the importance of meeting the challenge of continued growth in the coastal zone

by passing the Coastal Zone Management Act (CZMA) in 1972. This act, administered by NOAA, provides

for the management of the nation’s coastal resources, including the Great Lakes. The goal is to “preserve,

protect, develop, and where possible, to restore or enhance the resources of the nation’s coastal zone.”

The CZMA outlines three national programs, the National Coastal Zone Management Program, the National

Estuarine Research Reserve System, and the Coastal and Estuarine Land Conservation Program (CELCP). The

National Coastal Zone Management Program aims to balance competing land and water issues through state

and territorial coastal management programs, the reserves serve as field laboratories that provide a greater

understanding of estuaries and how humans impact them, and CELCP provides matching funds to state and

local governments to purchase threatened coastal and estuarine lands or obtain conservation easements.

<https://coast.noaa.gov/czm/act/>

IV. La. Admin. Code 43:I.719(M)

M) Mineral exploration and production sites shall be cleared, revegetated, detoxified, and

otherwise restored as near as practicable to their original condition upon termination of

operations to the maximum extent practicable.

V. La. Admin. Code 43:I.719(D)

D) Mineral exploration and production facilities shall be to the maximum extent practicable

designed, constructed, and maintained in such a manner to maintain natural water flow regimes,

avoid blocking surface drainage, and avoid erosion.

VI. La. Admin. Code 43:I.705(I)

I) All drilling and production equipment, structures, and storage facilities shall be designed and

constructed utilizing best practical techniques to withstand all expectable adverse conditions

without releasing pollutants.

29

VII. La. Admin. Code 43:I.705(J)

J) Mineral exploration, production, and refining facilities shall be designed and constructed using

best practical techniques to minimize adverse environmental impacts.

VIII. La. Admin. Code 43:I.705(K)

K) Effective environmental protection and emergency or contingency plans shall be developed

and complied with for all mineral operations.

D. CONCLUSION

I will follow with a discussion of the industry materials that establish that canal widening

was a foreseeable consequence of the failure to maintain the canals and facilitate a discussion of

what is next to come.

30