Anita Lee / SunHerald 30 December 2019

The U.S. Army Corps of Engineers and Mississippi River Commission have violated federal law by failing to study the consequences of diverting Mississippi River water into the Mississippi Sound through the Bonnet Carré Spillway, Secretary of State Delbert Hosemann says in a lawsuit filed Monday.

“This is not only unlawful, it is inexcusable,” the lawsuit says.

His office filed the lawsuit in U.S. District Court in Gulfport against the Army Corps of Engineers and MRC, the two agencies responsible for flood management on the river. The lawsuit also accuses the agencies of “willfully and obstinately” refusing to open the Morganza Floodway to relieve river flooding, despite the authority to do so.

The Mississippi Sound has borne the brunt of polluted river water, with trillions of gallons flowing through the Bonnet Carré in 2019 while the Morganza Floodway in central Louisiana remained closed. The discharge also includes river sediment that has blanketed the water bottoms of the Mississippi Sound.

The Bonnet Carré empties into Lake Ponchartrain and the Mississippi Sound beyond.

Hosemann wants a preliminary injunction that directs the federal agencies to also open the Morganza when river flooding is a problem instead of directing all the floodwaters through the Bonnet Carré.

He also is requesting that the judge order the federal agencies to update an environmental study, called an Environmental Impact Statement, that addresses the impacts of river water on the the Mississippi Sound. Previous studies have failed to evaluate damage to the Mississippi Sound, the lawsuits says.

Hosemann held a news conference Monday afternoon to announce the lawsuit, filed by attorneys from Balch & Bingham in Gulfport. Hosemann said he that his office was forced to file the lawsuit because the Corps has been unwilling to work with Mississippi on alternatives to opening only the Bonnet Carré.

“If the injunction is not granted, a substantial threat of irreparable injury exists in the form of massive freshwater inundation to a saltwater body, namely the Mississippi Sound,” the lawsuit says. “Such freshwater inundation will not only upset the delicate ecological balance of the Sound, but will also inflict serious economic damage to the people and businesses that derive their livelihoods from the Sound.”

ENVIRONMENTAL STUDY OUTDATED, LAWSUIT SAYS

An updated EIS would require the agencies to assess environmental impacts on the Mississippi Sound and consider less destructive alternatives to opening the Bonnet Carré.

This is the second lawsuit filed in federal court in Gulfport against the Army Corps and MRC. The first, filed by several Coast localities and two private associations representing hoteliers and the seafood industry, also calls for an EIS and other relief.

“We thank Secretary Hosemann for today’s powerful action and look forward to working with the state to protect the Mississippi Sound,” said Gerald Blessey, who heads the Mississippi Sound Coalition that includes Coast localities suing the Corps.

Repeated openings of the Bonnet Carré in recent years are without historic precedent. The spillway opened twice in 2019 for 123 days, releasing trillions of gallons of river water and causing $215 million in damage to Mississippi fisheries and the seafood industry, the lawsuit points out.

Such changed circumstances should under federal law prompt an updated EIS, the lawsuit says. Other changes the lawsuit enumerates since the last EIS, which was 43 years ago:

  • Ecological changes to the Sound caused by Hurricane Katrina in 2005 and the BP oil catastrophe in 2010.
  • Sediment and silt buildup that have raised the bottom of the Mississippi River.
  • Changes to the coastline’s shape and the size of its barrier islands.

CORPS ‘WILLFULLY’ REFUSES MORGANZA OPENING

The lawsuit also points out that the Corps and MRC have “absolute discretion” to open the Morganza Floodway, where excess river flow is released into the Atchafalaya Basin. The Morganza Floodway has been opened only twice in its history, most recently in 2011, when the Bonnet Carré also opened for a prolonged period.

Mississippi officials urged the Corps to open the Morganza in 2019, but the Corps said the river did not reach the trigger point of 1.5 million cubic feet per second. The lawsuit points out that the Corps’ water control manual allows the Morganza to be opened even if the flow rate does not reach the established 1.5 million cubic feet per second.

The Corps, “without explanation, justification, or rationale, has willfully and obstinately refused to open the Morganza Spillway, which is per se arbitrary and capricious,” the lawsuit says. “Failure to do so has resulted in a 100% diversion of all floodwaters directly into the Mississippi Sound.”

Hosemann has filed the lawsuit as the steward of Mississippi’s tidelands — water bottoms subject to the tide’s ebb and flow.

The Army Corps and MRC have 60 days to respond to the lawsuit, which represents only one side of the case.

Hosemann said he will continue to support the lawsuit when he ascends to the lieutenant governor’s office. Secretary of State-elect Michael Watson of Pascagoula, currently a state senator, said he will continue to “aggressively pursue” the lawsuit when he takes office January 9.

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