Separate ruling declares dam on Pat's Throat Bayou to be illegal
Judge Brian A. Jackson of the United States District Court for the Middle District of Louisiana issued a favorable judgment to Atchafalaya Basinkeeper, LCPA-West, Healthy Gulf, and Sierra Club Delta Chapter in the groups’ lawsuit challenging the U.S. Army Corps of Engineers’ permit for the East Grand Lake Project, vacating and enjoining the permit.
A motion for a summary judgment for the plaintiffs was denied in part and granted in part, and the judge also denied in part and granted in part the defendants’ request for a summary judgment.
The judge vacated the Corps’ issuance of the permit because it was illegally issued in violation of National Environmental Policy Act (NEPA) and Clean Water Act) CWA and their implementing regulations.
He also ordered that the permit decision document containing Environmental Assessment and CWA section analysis be remanded back to the Corps.
The judge ordered that the matter is stayed and administratively closed to allow the Corps to rectify the deficiencies the ruling found.
The decision is a monumental victory for the Basin that marks a suc- cessful end to a fight of more than 15 years in an effort to stop the East Grand Lake Project from destroying and degrading wetlands and flood capac ity, according to represen- tatives for the non-profit advocacy groups that challenged the Corps permits.
“By doing sediment diversion projects under the guise of water quality, the State is destroying the future of south-central Louisiana,” said Dean Wilson, executive director of Atchafalaya Basinkeeper.
"The massive loss of flood capacity of the Basin and Morganza Spillway will spell doom for all of us.”
Dean said he is “very proud of all the parishes that stood up to support this lawsuit in the face of political pressures.”
Ruling
“Winning this lawsuit is a huge win for the fishermen, and stopping the East Grand Lake Project will save the Basin from filling in,” Avery Theriot, President of LCPA-West said. “They need to stop all the projects in the Basin that are similar. The fishermen have been fighting these projects for almost 30 years and our voices are finally heard.”
The EGL Project was coined a “swamp enhancement project,” but sound science shows that the project would lead to increased sedimentation in the area, according to Atchafalaya Basinkeeper.
If not for the lawsuit, the project would have converted productive and vital swamp into bottomland hardwood forest by introducing sediment-laden river water and physically dispersing dredged sediment in the area, according to the group. That would have reduced the flood capacity of the Basin and pushed the Basin further toward the brink of disaster.
“The Atchafalaya Basin is an international treasure and provides for the communities, fishermen, and critters that live within its river of trees,” said Matt Rota, Senior Policy Director for Healthy Gulf. “This ruling helps us preserve this incredible area. Unlike many coastal areas of Louisiana, the Atchafalaya does not need more sediment, as it fills in vital habitat and fishing areas. It is our hope that we can continue to reduce and reverse this sedimentation and ensure that the Atchafalaya continues to serve its many functions including flood protection, wildlife habitat, and fertile fishing grounds. This natural and cultural resource must be protected, and this decision is another step in that direction.”
After decades of manipulation through flood control activities and oil and gas exploration activities, the Lower Atchafalaya Basin Floodway System’s natural water flow has been severely altered, Atchafalaya Basinkeeper said in a press release.
“In its decision vacating the EGL Permit, the Court in our case emphasized that ‘Sedimentation is a serious problem in the Basin. According to the Corps’ 1982 [study on the Basin], the ‘sedimentation is destroying wetlands and open water bodies within the floodway, and this not only reduces aquatic productivity, but lowers esthetic values and compounds the loss of cultural resource sites.’ In its decision and various rulings leading up to the judgment, the Court recognized that the East Grand Lake project design is similar to the Buffalo Cove and Beau Bayou projects that took place in the Basin and resulted in disastrous sedimentation that rendered much of those project areas inaccessible. Acknowledging the similarities, the Court ruled that the Corps could not simply take CPRA’s word that EGL would not produce the same results as these two failed projects that came before,” the Basinkeeper release stated.
“This has truly been a long time coming,” Dr. Angelle Bradford Rosenberg of Sierra Club Delta Chapter said. “Over the years, chapter chairs have been a part of this fight and I am grateful to now be the chair that gets to see the battle’s end and to see the next phase of the restoration of the Basin.”
“It’s an enormous relief that the Court recognized the serious violations of federal law that affected the defective dredge-andfill permit issued by the Army Corps for the EGL project, which threatened the sustainability and health of the Atchafalaya Basin’s wetlands and the communities who live and earn a living there,” said Daniel E. Estrin, General Counsel and Legal Director for Waterkeeper Alliance. “We hope the state will now abandon this dangerous project, but if it proceeds we are prepared to continue to hold the state and federal governments accountable for any future violations of the law.”
Brennan Spoor, Staff Attorney for Atchafalaya Basinkeeper, shared his thanks for the many groups and individuals who played a part in this victory.
“This historic day for the Atchafalaya Basin would not have happened without the immeasurable support Basinkeeper has received from its members and allies,” Spoor said. “We owe this victory to the Environmental Law Clinic at Tulane Law School, who successfully represented Atchafalaya Basinkeeper, Louisiana Crawfish Producers Association-West, Healthy Gulf, Sierra Club and its Delta Chapter, and Waterkeeper Alliance in this lawsuit; to St. Martin Parish and Iberville Parish, both of which passed resolutions in support of us and filed amicus briefs in this case to express the Parishes’ concerns about the EGL Project; to Assumption Parish, also passing a resolution in support of our lawsuit; to the media outlets and news stations who were willing to cover this story to shed light on this existential threat to the Basin; to Dr. Ivor Van Heerden, who provided invaluable research and reports for this lawsuit that gave the Corps ample evidence showing this project would result in an ecological disaster; to the crawfishers who helped establish standing for this case to proceed; and to all the members who help support Basinkeeper and our partner organizations as we fight to stop the destruction of our Basin.”
Dam ruled illegal
On Tuesday, March 31, the same judge declared the dam on Pat’s Throat Bayou to be illegal and issued a judgment in favor of Basinkeeper and LCPA- West in the organizations’ lawsuit challenging the now-vacated permit for the dam issued by the Army Corps of Engineers.
Judge Jackson ruled that the Corps had “reached unsupported conclusions that the Miller Structure did not violate General Conditions 5 and 9 and Regional Condition 7” and violated the CleanWater Act and the Rivers and Harbors Act.
Pat’s Throat Bayou has long been used for access to fishing grounds and sustains the area’s crawfish populations, and is a historically navigable waterway falling under the Corps’ jurisdiction, according to the lawsuit.
In September 2021, the Miller Hunting Club built a 32-foot-long, 17-footwide, 6-foot-tall structure across Pat’s Throat to access additional hunting areas without first obtaining a permit from the Corps, the suit stated. with some culverts to allow water to pass through.
But the structure blocks boat passage. Atchaflaya Basinkeeper sent a letter to the Corps in October 2021 notifying it of the “illegal dam.” The Corps issued Benjamin Miller of the Miller Hunting Club a Notice of Violation, stating it was a violation of the RHA and CWA.
Miller then applied for a permit after the fact, according to the lawsuit, and when asked whether Pat’s Throat was used by others for access to parts f the Basin, he said that the bayouw as cluttered with debris and fallen trees so any boat travels could not happen.
Atchafalaya Basinkeepers said that boaters frequently cleared any fallen trees or limbs from Pat’s Throat to access it.
The lawsuit stated that the Corps granted Miller a permit for the structure a month later, without visiting the site.
The judge ordered the plaintiffs’ motion granted in part and denied in part in a 33-page ruling.
The Corps’ authorization of the structure was ruled invalid and vacated and ordered the matter stayed and administratively closed to allow the Corps the opportunity to rectify the deficiencies.
