Groups ask ruling on new pass

A number of national and local environmental groups sent a letter to the U.S. Army Corps of Engineers on Friday, asking that Mardi Gras Pass be formally designated as a navigable waterway.

The letter, addressed to Col. Ed Fleming, New Orleans corps district commander, also says that if the corps determines the pass to be a navigable waterway, the agency should revoke a permit it granted for road construction that would block the water flow in the pass.

“In light of the changed waterway conditions, this permit is no longer appropriate,” the letter says.

The corps is in the process of reviewing the letter, so any comment would be speculation until that review is completed, said Ricky Boyett, public information officer with the corps.

Mardi Gras Pass, located about 45 miles down the Mississippi River from New Orleans, established itself around Mardi Gras day this year and has continued to evolve in width, depth and flow since that time, according to information collected by the Lake Pontchartrain Basin Foundation.

John Lopez, executive director of the Lake Pontchartrain Basin Foundation, has said that a pass developing naturally is rare and hasn’t happened in modern times. It also indicates changes in the Mississippi River, he said. The foundation has been monitoring the area since May 2011, when it appeared that a pass might form.

However, the pass formed through a road that supplies an oil and gas facility called Eland/Sundown Energy, and the company has requested a permit to rebuild the road, which would cut off the flow of water through the pass.

In January, the corps granted the company a “Programmatic General Permit,” which essentially is a way for the corps to say it has no objection to the permit, but that the permit has to get state authorization as well.

The permit went to the state Department of Natural Resources, and the state asked the company to look for alternatives other than closing off the pass with a traditional road, Karl Morgan, administrator of DNR’s permits and mitigation division, said in May. That permit request is still under review by the state.

On Friday, the Environmental Defense Fund, the Lake Pontchartrain Basin Foundation, the National Audubon Society, the National Wildlife Federation and the Tulane Institute on Water Resources Law and Policy sent the letter to the New Orleans corps district, asking for the pass to be labeled navigable under the 1899 Rivers and Harbors Act.

If the corps agrees, the agency would have good reason to revoke the road permit it granted in January, according to the letter.

Reasons given in the letter include that the situation at the pass has changed since the permit was granted and it is now a “continuously flowing distributary pass of the Mississippi River.”

In addition, with navigable status there are additional requirements under the law before making changes to or even spanning a waterway, according to the letter. Those requirements would be over and above what was needed for the previous permit.

However, Michael Farabee, section chief for the regulatory branch at the corps, said the waterway has been considered “navigable” from the beginning under Section 10 of the River and Harbors Act because it’s influenced by tides. Under that law, he said, the permit granted in January would stand since the project is to rebuild a road that was already there but just washed away during the flood.

The environmental and coastal groups disagree, saying the corps’ description is a different definition of navigability and not the one being discussed by the environmental groups, Lopez said.

“Things have materially changed,” Lopez said, and with those changes should come different regulations that apply.

“It’s a river now. It’s not a washed out road,” he said.

Also, the state has two nearby river diversions on the planning books, Lopez has said, and the possibility that the Mardi Gras Pass location could take the place of one or both of those diversions is one that should be examined.

Garret Graves, director of the Governor’s Office of Coastal Activities, said the issue of navigability was just brought up to the state a few weeks ago and material supplied by environmental groups is still being reviewed.

“We haven’t attempted to make a legal or policy call at this point,” Graves said.

In the meantime, he said, the state is working with the oil company to find a solution that would allow water to still flow through the pass while the company has access by road to its facility.

As far as whether the pass is currently considered navigable or not, Graves said, “We believe it’s going to take some kind of affirmative action on the part of the corps to make that happen.”

The process of getting that kind of action started appears to be what the environmental groups are pursuing now, he said.