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In the Mire: Meeting Environmental Rules for Long-delayed Comite Diversion Canal is a Bureaucratic Slog

Comite Diversion Canal

Posted on September 6, 2016

By Steve Hardy, The Advocate

It’s a comforting thought — a canal that whisks high water from the Comite River into the Mississippi, reducing destructive flooding from Central and north Baton Rouge down through Denham Springs and even parts of Ascension Parish. But to build the long-delayed Comite River Diversion Canal, construction crews will have to dig up and trample on wetlands in the northern areas of East Baton Rouge Parish.

And when wetlands stand to be harmed, federal environmental law requires that the developer — in this case a joint group of local, state and federal agencies — must offset that damage by protecting or restoring wetlands elsewhere.

For a project like the canal, which will require an estimated 1,600 to 1,700 acres of such “mitigation” land, the process of buying the property has become a bureaucratic and political slog.

When construction began in 2003, officials expected the canal to be protecting residents by 2012 at the latest, but today the diversion remains unfinished, with only a water-control structure built. The canal itself remains undug.

While many factors — perhaps most importantly the failure of the federal government to fully fund its share of the project — have thwarted construction, the problem of obtaining mitigation land has also taken its toll, consuming time and money in futile efforts.

The debate over what swampland can be used and whether the government can force private owners to sell it through the power of expropriation has roped in all the major players in the project, including the regional Amite River Basin Commission, the state Department of Transportation and Development and the U.S. Army Corps of Engineers.

The state passed legislation to block the federal government from seizing private land for mitigation under eminent domain. The Basin Commission fired back with a lawsuit, which ultimately failed.

U.S. Sen. David Vitter campaigned to open up new lands for purchase, but after months of haggling, plans had to be scrapped due to a mineral rights claim. The state has finally come up with a decent-sized chunk of swamp it can use for mitigation, but the head of the Basin Commission has said the Corps won’t tell him how much credit he can get for it.

The final cost of the canal will wind up north of $200 million. Mitigation takes up a relatively small portion — about $8 million has been spent so far, with another few million set aside for pending deals.

Politicians have bandied about the idea that Louisiana’s federal flood relief package should include financing to build the long-desired canal.

However, if the Comite River Diversion Canal were to receive full funding tomorrow, the government would not have enough mitigation land to complete the project.

Officials say it is not a practical concern because they could begin construction and purchase land in the time it will take to actually dig the diversion and build all the bridges and support structures — a process which has been variously estimated to take as few as three or as many as nine years.

However, it is evident that the process of buying mitigation land which began over a decade ago remains a quagmire.

Balancing the scales

Mitigation land is totally separate from the “right of way” land where the canal and flood control structures are to be built.

To offset damage to the environment, the federal government requires that developers who build in wetlands pay the ecosystem back by improving land elsewhere. They perform work such as removing pollutants or human development and allowing the land to revert to a wild state.

Dietmar Rietschier, executive director of the Basin Commission, estimates that only about 20 to 25 percent of the right of way land for the canal has been purchased, though that land can be seized by the government through expropriation, in which owners are forced to sell their property for a project considered to be for the public good.

Mitigation land, however, must be freely sold under the relatively new state law.

The state may buy some land from mitigation “banks” — areas where developers have already done wetland preservation or repair work — but the Corps requires non-federal partners like DOTD and the Basin Commission do most of the work themselves.

The theory behind mitigation is to make sure that, overall, the environment is no worse off following development, explained Richard Keim, a professor at LSU’s School of Renewable Natural Resources.

“We’re treating the Comite River like it’s some sort of drainage ditch, but it’s an ecosystem,” he said.

When federal mitigation efforts began in earnest in the 1980s, developers were allowed to just buy wild areas and rope them off to prevent future construction, Keim explained. Now, if an infrastructure project, strip mall or subdivision encroaches on wetlands, the developer is encouraged to restore them somewhere else.

For example, engineers might locate some pasture that had once been a swamp, then replant native vegetation and plug drainage ditches so the area can flood.

Ultimately, mitigation is not measured in acres but in “habitat units.” A developer can expect to receive more points for replenishing a severely polluted, developed or logged area than a fairly healthy swath of swamp.

The diversion canal project requires 620 habitat units. It currently has accrued somewhere around 150 to 200, Rietschier said. The first 150 came from buying from mitigation banks in areas like Spanish Lake, and the state and ARBC is the process of buying land in the McHugh Swamp.

Mitigation has been a politicized issue. Keim explained that individual Corps offices have rigid standards, but in practice they can vary from division to division, such that the local office in New Orleans may have slightly different standards than the one in Jacksonville.

Several years ago the New Orleans office tried to implement standards based on the Charleston division, which would have set higher mitigation requirements for private and state building projects, Keim said. A coalition of Louisiana politicians successfully fought the new procedure, saying they created undue burden on businesses. It did not directly affect the diversion canal, however, because it is a federal project.

One of the bigger problems for the canal has been deciding what areas should count if the government is trying to adequately balance the ecological impact in kind. Some, like U.S. Rep. Garret Graves, have argued that all or much of the river basin should be fair game, all the way down to Lake Maurepas.

Keim remarked that even Profit Island, which was once considered for mitigation, probably doesn’t have the same ecosystem as the areas being affected by the canal. Even though it is nearby, he noted, it’s in the middle of the Mississippi River.

Stuck in the mire

Though the canal has been discussed since the flood of 1983, efforts increased in 2000 when voters in East Baton Rouge, Livingston and Ascension parishes agreed to pay a three-mill property tax to support the Amite River Basin Commission.

Former U.S. Rep. Richard Baker said then-Gov. Mike Foster wanted to make sure that funding for the project came from locals before the state had to put up money to dig the canal. Passing the tax was supposed to be the hard part of the project, but after voters gave their approval and even re-upped it 10 years later, the local funding has been the most consistent cash flow.

Baker blames the lack of progress on the curtailing of congressional “earmarks”, a political maneuver federal legislators used to set aside money for their own local projects.

“The truck of congressional reform just ran over projects of this sort,” he said.

However, amidst funding issues, mitigation has remained a thorn in the side of canal proponents.

In 2002, the Army Corps of Engineers began to consider mitigation issues for the canal project. They focused on a stretch of the Comite between La. 64 and Hooper Road. However, most of the 75 or so landowners didn’t want to sell their riverside property, which included some homes. The government had the option of seizing the land under eminent domain.

Bobby Duplantier, the Corps engineer assigned to the canal, has said the Corps has never received consistent federal funding for the canal and that the agency doesn’t like to expropriate people’s land unless it thinks it will be used.

By 2009, state and local agencies were becoming frustrated by the lack of progress and stepped in, according to Christopher Knotts, DOTD’s public works and water resources chief.

Technically, the state took over buying mitigation land, though the Basin Commission has helped fund the purchases and performed support functions over the years, such as holding on to bought properties and performing studies.

In 2009, property owners along the river started getting letters informing them that the government would be taking their land, one way or another, state Sen. Bodi White told state legislature’s Natural Resources Committee back in 2010, when he was still a state representative.

“There’s too many other choices to take somebody’s property just to mitigate,” he testified. “Instead they’re taking people’s homes.”

White successfully passed legislation that made it illegal for Louisiana government agencies to expropriate land to provide mitigation for federal projects.

“We don’t want to start that as our policy,” White said in a recent interview.

For comparison, he raised the scenario of the Corps doing a project to help control Bayou Manchac and trying to force out everyone who lived within a half-miles radius to satisfy mitigation requirements. Everyone would consider that “unreasonable,” he said.

White’s legislation was born in an environment of tension between property rights and public works projects. In 2005, the U.S. Supreme Court ruled in the case of Kelo v. City of New London that a Connecticut municipal government could seize property to give to a private developer. Supporters argued that developing the land would create jobs and increase the tax base, but critics on both sides of the aisle railed against what they viewed as an encroachment on individual liberties.

In the years that followed, several states wrote new laws designed to curb expropriation. White says he wrote his legislation in response to specific requests from his constituents, but adds that it followed the general spirit of other Kelo backlashes.

Maybe the law made it harder to move forward on the canal, White allowed, but he doesn’t think it ultimately slowed down efforts to dig the canal because it still hasn’t been getting funding.

However, at the time, Basin Commissioners sued, saying the new law would hamper their ability to complete the project. The suit wasn’t resolved until early 2012, when a state judge in Baton Rouge sided with the Legislature.

Still inching ahead

The Baton Rouge court’s decision moved mitigation efforts to their current state. The Basin Commission and DOTD are looking to buy from “willing sellers.”

In 2012, Vitter led efforts to open up two new areas for mitigation — Profit Island, in the Mississippi River, and the McHugh Swamp along the canal’s route.

The government spent months talking to the owners of Profit Island only to watch the deal fall apart as they were preparing to close. It came to light that the person who held the mineral rights to the undeveloped island was unwilling to sign off, making the land unavailable for mitigation.

Since then, efforts have focused on the McHugh Swamp southeast of Zachary. By now, the Basin Commission has cobbled together several hundred acres from a patchwork of willing sellers, Rietschier said.

However, there is still more red tape. Before the land can be signed over, the Basin Commission must update its maps because the parish has bought some right of way land with an eye on widening McHugh Road at some point in the next 15 years or so. Authorities don’t expect a long delay, but it’s just another in a line of stalls.

Rietschier hopes there is enough land available in the McHugh Swamp to satisfy all the requirements. The Corps has allowed the Basin Commission and DOTD to offer deals to people in a 2,500-acre area. So far, 1,280 acres have been identified for sale — 490 have been purchased, nearly all for mitigation, with another 790 in process, pending the map update and a separate issue about cleaning up a skeet-shooting range.

Knotts believes there is land enough in the swamp to get the first three of five canal phases built — a substantial amount of construction that would bring the channel from McHugh Road to Lily Bayou, from which the water would drain into the Mississippi. But Knotts doesn’t think the swamp will be able to satisfy all the project’s mitigation requirements.

He expects the Corps will award about 0.3 habitat units per acre. At that rate, 1,280 acres would amount to 384 units. Added to the 150 units from previous mitigation bank purchases, and DOTD and the Basin Commission is looking at 534 habitat units, still short of the 620 the project is estimated to require.

When asked about other options if McHugh Swamp can’t supply the full amount, Rietschier mentioned returning to the mitigation banks, perhaps farther south in the basin, and seeing if he could buy land there. Or, he hopefully added, maybe other property owners in McHugh will be willing to sell too.

Source: The Advocate

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