Judge: Corps must discuss spillway use with fisheries agency

Published 5:09 pm Friday, January 20, 2023

By KEVIN McGILL | Associated Press
NEW ORLEANS — A federal judge has ruled that the U.S. Army Corps of Engineers must consult with federal fisheries experts on the effects of opening a spillway that protects New Orleans from Mississippi River flooding, but threatens coastal Mississippi marine life and tourism.

The Bonnet Carre spillway control structure is upriver from New Orleans. It was used infrequently after it was completed in the 1930s. But after being opened once in 2018, it was opened twice in 2019 — the first time it was opened in consecutive years and the first time it was used twice in one year.

Opening the spillway diverts Mississippi River water along a 6-mile course of guide levees to Lake Pontchartrain and Lake Borgne, after which it flows to the Mississippi Sound in the Gulf of Mexico. The influx of river water carries pollutants and nutrients into the sound and reduces salinity. The result can be damage to oyster, fish and crab habitats, and algae blooms that also affect marine life and beaches.

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Coastal Mississippi governments and business interests sued the Corps over the openings in 2019, saying the Corps was legally required to consult with the National Marine Fisheries Service before opening the spillway. On Wednesday, U.S. District Judge Louis Guirola Jr. of Gulfport, Mississippi, agreed. He said there was evidence that the Corps “created an increased risk of actual, threatened, or imminent environmental harm that directly affected the Plaintiffs when it opened the Spillway without consulting with the Fisheries Service.”

“Consultation in the future may well require the Corps to consider alternatives that would lessen this environmental harm and additional damages to Plaintiffs,” Guirola added.

Guirola said a consultation between the Corps and NMFS on the effects of opening the spillway must be completed by Sept. 30.

Robert Wiygul, an attorney representing coastal Mississippi governments and business groups, said the decision would not preclude the Corps from opening the spillway should a high Mississippi River threaten New Orleans in the coming weeks or months.

“The Corps is going to be able to do what they need to do to protect public safety,” Wiygul told The Associated Press in a telephone interview. But, he added, the judge’s order means the Corps must discuss ways of mitigating the damage to fish habitat caused by opening the Bonnet Carre.

Alternatives, Wiygul said, could include opening less of the Bonnet Carre structure, or using the Morganza Spillway, farther upriver, as an alternative to, or in concert with the Bonnet Carre. That would send Mississippi River water into south Louisiana’s Atchafalaya basin and could also cause controversy by flooding agricultural land and wildlife habitats.

Another alternative, Wiygul suggested: “It could include looking upstream to improve water quality in the Mississippi River,” he added.

A Corps spokesman declined to comment, referring queries to the U.S. Department of Justice.

“We’re reviewing the ruling and considering next steps,” department spokesman Wyn Hornbuckle said in an email.
Biloxi, Mississippi’s mayor, Andrew “FoFo” Gilich, hailed the ruling in an emailed news release.

“The Coast finally has a foot in the door through the National Marine Fisheries Service for our voices and scientific facts to be heard to prevent the death of the Mississippi Sound,” Gilich said.