Judge Orders Corps To Consult On Future Operation Of Bonnet Carre Spillway

U.S. District Judge Louis Guirola Jr. has ruled against the U.S. Army Corps of Engineers in a lawsuit brought by Harrison County, Miss., and a host of other southern Mississippi municipalities, property owners and commercial fishing groups, which argued that recent and extended openings of the Bonnet Carre Spillway “have caused significant damages to the environment and economy of the Mississippi Gulf Coast.”

In the lawsuit, the plaintiffs argued that such action and the impacts of spillway operations amount to a violation of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), legislation first passed in 1976 that, among other things, manages the nation’s fisheries.

The Bonnet Carre Spillway is the southernmost flood control structure included in the Mississippi River & Tributaries Project. Other structures include Morganza Spillway, the Old River Control Complex and the Birds Point-New Madrid Floodway. The system, which also includes mainline levees and revetment operations, was designed and implemented in response to the Great Flood of 1927 in order for the Corps to be able to manage the flows during high water.

Historically, the trigger point for the New Orleans Engineer District opening Bonnet Carre is a flow of 1.25 million cubic feet per second (cfs.) in New Orleans.

Bonnet Carre diverted water northeastward into Lake Pontchartrain, a brackish lake north of New Orleans. Lake Pontchartrain then empties into Lake Borgne and, ultimately, the Mississippi Sound. Communities there, following operation of Bonne Carre, have experienced drop-offs in oyster, shrimp and crab catches due to the influx of freshwater. Property owners named in the lawsuit reported cancellations as a result.

“Plaintiffs, which are local governments and businesses operating near the Mississippi Sound, have sued the Corps, claiming that the more frequent, lengthier openings of the spillway in recent years have caused significant damages to the environment and economy of the Mississippi Gulf Coast,” Guirola wrote in a court opinion filed February 18. “Plaintiffs allege that the Mississippi Sound, Lake Pontchartrain and Lake Borgne have been designated as essential fish habitats governed by the Magnuson-Stevens Fishery Conservation and Management Act.”

In responding to plaintiffs’ claims, the Corps asserted that the 1930s-era spillway is not subject to a law passed decades later because “there is no indication that Congress intended for the MSA ‘to attach new legal consequences to events completed before [the statute’s] enactment,’” according to court documents. The Corps also argued sovereign immunity and that the plaintiffs lacked standing.

Ultimately, Guirola sided with the plaintiffs, denying the Corps’ motion for summary judgment and ordering the Corps to, according to the MSA, consult with the National Marine Fisheries Service regarding the impact of the operation of Bonnet Carre Spillway prior to September 30 of this year.

“It is further ordered and adjudged that, all claims having been resolved by the court, this case shall be closed,” Guirola said in his judgment. “However, the court will retain jurisdiction for the purpose of ensuring the Corps’ compliance with the court’s memorandum opinion and order and judgment.”

A representative of the New Orleans District declined comment due to the ongoing litigation.