Having seen all of the press coverage and politicians making statements about the opinion written by Judge Duval finding that Corps negligence resulted in the levee breach that flooded St. Bernard Parish and the Ninth Ward, last week I obtained a copy of that opinion.
After having read all 156 pages of the opinion, what I find most surprising is how most of the coverage and statements by politicians fail to acknowledge the actual basis for the Courts’ finding of liability. Contrary to many of these statements I have heard, the Court did not find the Corps liable because it built the MRGO. Rather, he found the Corps liable because their continuous failure to properly maintain the MRGO and address significant erosion contributed to the breach of the Reach 2 Levee that protects St. Bernard Parish and the 9th Ward. On other hand, he did not find them liable for damages to New Orleans East or for the levee breach that occurred in the Inner Harbor Navigation Canal.
What is most striking about the entire case; however, is that the Judges recitation of the facts shows, an utter disregard by the Corps for over 20 year of the safety of the residents of St. Bernard Parish. After detailing the history of the MRGO and the expert testimony presented at trial, Judge Duval’s opinion specifically found that
“Clearly, the Corp failed to maintain and operate the MRGO in a manner so as not be a substantial factor in the destruction of the Reach 2 Levee. In addition, it failed to take action that it could have taken to place foreshore protection using the very operation and maintenance funds which proved to be sufficient to fund these actions in the 1990’s. Instead, it ignored the safety issues for the inhabitants of the region and focused solely on the maritime clients it serviced so well.”
The second thing that is so striking – but not surprising for those of us who watchdog Corps projects -- is the Corps’ blatant disregard for the requirements of the National Environmental Policy Act. The Corps published its “Final Composite Environmental Statement of Operation and Maintenance on Three Navigation Projects in the Lake Borgne Vicinity Louisiana” in March of 1976.
In February 1988, it published a “Mississippi River-Gulf Outlet St. Bernard Parish, La. Bank Erosion Reconnaissance Report" which reported that the Outlet was experienc severe erosion that was steadily widening the MR-GO and that the east bank along Lake Borgne was dangerously close to being breached. According to the Court, despite this finding, the Corps never supplemented its 1976 Environmental Impact Statement as required by NEPA, and “never addressed mitigation measures, alternatives, or risks to human life and property, or any other disclosures required by NEPA and its implementing regulations.
Finally between 1980 and 2004, the Corps performed a total of 26 environmental assessments of the MRGO relating to operation and maintenance in which in each instance the Corps found that the operation and maintenance had no significant impact (FONSI) . . . . ” (Opinion at p. 133-134.)
Sadly, this case is alone sufficient proof of the need for the reform of this powerful agency and ensures that in the future, community safety is given equal importance to the interests of navigation.
Cyn Sarthou is GRN's Executive Director
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