Living With Water

Living with Water Tulane Institute on Water Resources Law & Policy Annual Report 2008-2009

Authors

Mark Davis, Director

Ann Yoachim, Program Manager

Overview The 2008-09 year saw major developments on the water law and policy front and in the programming and profile of the Institute. The election of a new president and congress presage a new era of public works and greater attention to issues such as climate change, rising seas, and ecosystem stewardship. Another active hurricane season, persistent droughts, and chronic regional water shortages served as reminders that the ways we manage water—and for whom—matters in the most fundamental way. One clear lesson from the developments of the past year is that water is increasingly a resource that defines both risk and opportunity. It is increasingly the critical common denominator that links environmental, transportation, energy, climate, health, and cultural policies and programs. The interplay between state and federal laws, public and private rights, traditional and emerging water uses, and domestic and international policies and programs promises to become more complex in the future in ways that demand both a deeper understanding of current laws and policies and innovative approaches. This, of course, fits squarely within the mission of the Institute. The Institute’s approach to its mission and programs is as multifaceted as water itself. Through our partnerships, programs, and publications we: Stimulate an appreciation, understanding, and discussion of the role and value of water in our society and of the importance of law and policy its management and stewardship; Educate our students, the legal community, policy and decision makers, and the public about the legal regimes that control water use and management; Advise policy and decision makers, the legal community, advocates, and community leaders about developments in field of

water law and policy; and Consult on the development of water related policies and programs.

2008-2009 HIGHLIGHTS

The depth and range of the Institute’s efforts can be seen in some of our program highlights for the last year. •

Hosting a symposium on the future role of the White House Council on Environmental Quality and releasing a blue-ribbon report containing specific recommendations on focusing and strengthening that important office.

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Consulting to the City of New Orleans on the development of water management and hazard mitigation aspects of the city’s new master plan.

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Providing advice to the Governor’s office and the Louisiana Attorney General’s office on emerging water issues.

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Providing advice and guidance to members of Congress and congressional staff on water resource issues.

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Educating local leaders and the philanthropic community about the roles water plays in planning for the recovery and future resilience of Gulf Coast communities.

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Helping communities understand coastal restoration and civil works programs so they can better understand and contribute to the far reaching plans being developed by the State and the Army Corps of Engineers and make better decisions at the individual and neighborhood level to increase their level of protection from and resilience to water driven risk through the “How Safe, How Soon?” collaborative project.

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Educating the legal community and broader public about the importance of having a coherent and purposeful approach to living with, managing and regulating water through articles, interviews, and presentations.

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Stimulating public thought and discussion about emerging and high profile issues through our Percy Viosca Distinguished Speaker series. This year’s featured speakers were the prominent author and environmentalist, Bill McKibben, and the Director of Civil Works for the Army Corps of Engineers, Steve Stockton. These presentations were open to the public and rebroadcast on Cox Cable.

GOVERNANCE

The Institute is a program of Tulane Law School. The Institute’s programs are developed to be consistent with its founding mission and the educational and public service missions of the Law School and the University. To help shape and guide its work the Institute has two advisory boards, one internal drawn from members of the Law School’s environmental faculty, and one external composed of individuals with diverse and distinguished experience in planning and water law, policy and management. The Institute’s internal advisory board members are: • • •

Prof. Oliver Houck Prof. Gunter Handel Prof. Adam Babich

The Institute’s external advisory board includes: • • • • • • • •

James T. B. Tripp, General Counsel, Environmental Defense, New York City R. King Milling, Chairperson, Governor’s Advisory Commission on Coastal Conservation, Restoration, and Protection, New Orleans, Louisiana Keith Colvin, Partner, McGlinchey Stafford, New Orleans, Louisiana Allen Eskew, Principal, Eskew, Dumez, New Orleans, Louisiana Robert Dawson, CEO, Dawson and Associates, Washington, DC Linda Walker, JD, (Past member of Louisiana Groundwater Management Commission), New Orleans, Louisiana Eric Dannenmaier, Associate Professor of Law, Indiana University Law School, Indianapolis, Indiana Jerome Ringo, President, Apollo Alliance, San

Francisco, California

Program Developments The theme “Living With Water” runs through all of the Institute’s programs. The combined effects of climate change, wetland loss, storm damage, and growing competition for freshwater promise to redefine society’s relationship to water and how we live with--or without--water. Indeed, they already are. Preparing for this new reality is not just a matter of science, engineering and popular desire. It is also fundamentally about the laws and policies that define our current approaches to controlling and planning for water. Ultimately it is about having laws and policies that allow a new generation of water resource related decisions and actions to be taken. Stimulating thought and discussion about the future of water resource stewardship and control and the architecture of the supporting laws and policies is at heart of the Institute’s work. Because of the cross-cutting nature of water issues the Institute’s programs often involve collaborations with academic institutions, the legal community, community organizations, the non-profit organizations and technical experts. These collaborations add valuable depth and perspective to our work. A prime example of this is the Institute’s partnership with the Tulane/Xavier Center for Bioenvironmental Research (CBR), which combines the Institute’s strengths with CBR’s on such projects as the Institute’s How Safe, How Soon project and CBR’s Urban Eco and RiverSphere programs. Other notable collaboration partners over the past year include The University of New Orleans, the University of Wisconsin (Madison), the Coalition to Restore Coastal Louisiana, Environmental Defense Fund, National Audubon Society, Women’s Environment and Development Organization, The McKnight Foundation, The Henry M. Jackson Foundation, the Lower 9th Ward Center for Sustainable Engagement & Development, the Carrollton-Hollygrove Neighborhood Association, the United Houma Nation, and the City of New Orleans.

These and other collaborations are central to many of the Institute’s projects and programs, some of which are highlighted below.

STIMULATE CONVERSATION

“Facing the Future: A Colloquium on the Role and Future of the White House Council on Environmental Policy”

“We recommend a focal point for environmental policy in the White House. That is what we said in 1968…and it is still true.” Russell Train, Chair, President’s Council on Environmental Quality, 19701973

In the fall of 2008, the Institute convened a colloquium of experts to discuss the role and structure of the White House Council on Environmental Quality in today’s world. The event, held at the Mt. Vernon Inn in Mt. Vernon, Virginia, brought together eighteen experts, including former leaders and senior staff of several federal and state environmental agencies (including three former CEQ chairs), from multiple disciplines to consider these issues. The Institute’s role as convener not only demonstrated our ability to work with advocates at all levels, but also reflected our reputation for confronting basic policy questions in ways that lead to practical results. The published report that emerged out of the event aimed to help the new administration maximize the potential of the CEQ and its recommendations stressed the need to aggressively confront climate change in ways that maximize economic opportunity and environmental gain. The report was noted in the national press, and circulated in the inner circle of the Obama transition team. The Institute’s leadership role on national environmental policy has been recognized by CEQ and others that continue to solicit Institute input on water related issues.

Professor Oliver Houck and Niel Lawrence, Natural Resource Defense Council Russell Train, Former CEQ Chairperson Nichols Yost, Former CEQ General Counsel

SUPPORT COMMUNITIES

“How Safe, How Soon?” “How Safe, How Soon” is a collaborative effort of communities, technical experts, and philanthropy focused on creating a safer and more resilient Southern Louisiana. The program helps individual communities such as the United Houma Nation in Lafourche and Terrebonne Parishes, as well as citizens in New Orleans’s Lower 9th Ward and Carrollton/Hollygrove neighborhoods assess their flooding risk and develop long-term visions for the future as they face the consequences of climate change and wetland loss. The project has allowed each community to focus on issues of emergency preparedness and return, longterm community resilience, evacuation planning, identification of places of return and recovery, resilient housing, water related risk analysis and fundraising. The communities continue to create new partnerships and working relationships with other non-profits, government agencies and communities, and begun establishing themselves as innovators and leaders in the eyes of local, state, and federal authorities. The role of the Institute is to provide guidance to community and local governmental leaders about the laws, policies, and procedures that govern water resource planning and programs so they can better shape plans and decisions that affect their future. Specifically, the Institute has been successful in helping to unite leaders from the three communities, broadening their emergency preparedness plans and coordinating strategic long-term plans for hurricane risk reduction. Finally, the Institute and its partners have improved the ability of the three communities to communicate their needs and views to local, state, and federal governmental authorities, academia, and philanthropy. This project is a collaborative effort that includes the University of New Orleans, the Coalition to Restore Coastal Louisiana, Environmental Defense Fund, and community organizations. This project is ongoing and allows the Institute to base water policies we propose in “on the

ground” experience. Funding has been provided by the Blue Moon PLAN FOR THE CITY’S FUTURE Fund and Environmental Defense Fund.

New Orleans City Master Plan New Orleans is a city that has long celebrated its past more than it has planned for its future. One of the most exciting and hopeful developments in post-Katrina New Orleans is its commitment to developing a true Master Plan that has the force of law to guide its redevelopment and future growth. This plan is historic not only because of its legal status but because it is firmly rooted in making the City environmentally, culturally and economically sustainable. A central feature of the plan is the City’s relationship to water—both as a driver of risk and an asset. Finally, the Institute has informed planners about additional sustainability challenges facing the comprehensive planning effort, including coastal wetland loss, rising seas, soil subsidence, and climatic cycles, and advised as to the levels of protection required to make New Orleans more resilient and vibrant.

"The Institute's ability to command credibility has made our work to prepare the Master Plan far more productive.” David Dixon, Principal-Planning & Urban Design, Goody, Clancy & Associates

SHAPE STATE WATER POLICY

Trust for Coastal Stewardship As part of the Institute’s continued mission to foster the development of laws and policies that promote sustainable management of Louisiana’s water resources, the Institute has continued to guide state agencies and law makers on critical coastal land management issues. Last year, the Institute began working with state regulators to develop rules and regulations that would reconcile ownership of surface and subsurface land in Louisiana’s coastal wetlands. These efforts have made steady progress after overcoming substantial delays due to procedural obstacles and transitions in both the Governor’s office and Attorney General’s office. The Institute continues to participate in the rulemaking process and is currently working with the Attorney General’s office and the State to ensure that new regulatory language meets the needs of the State’s coastal stewardship goals. In addition to assisting in the drafting of rules concerning title to Louisiana coastal wetlands, the Institute worked with coastal land owners and land conservation organizations to encourage transfers of private surface lands to public entities or charitable land trusts for coastal conservation, restoration and protection. Specifically, the Institute continued its work with the Trust for Coastal Stewardship, a charitable land trust created to facilitate the State’s efforts to conserve, restore, and protect its coastal waters and wetlands.

Oil, Water and Coastal Stewardship The Institute has also served as a valuable information source for the State, the legal community, and nongovernmental organizations as they seek better ways of balancing oil and gas development with environmental stewardship. For example, a February 2009 report for the National Audubon Society authored by the Institute highlighted

critical legal measures for harmonizing oil and gas activity and coastal land stewardship in coastal Louisiana. The report detailed the history of Louisiana coastal land rights and the challenges facing environmental stakeholders as the state’s traditional unified title rules are reworked to support protection of surface coastal land. Institute personnel also participated in the Mineral Law Institute at CONSULT WITH PHILANTHROPY Louisiana State University, highlighting the basics of Louisiana water law and emerging oil/gas and water issues.

Recovery in Context A critical feature of the recovery from Hurricanes Katrina and Rita, and now Gustav and Ike, is the high degree of national philanthropic interest in the region. Successful “recover philanthropy,” however, requires a deep understanding of the communities, culture and geography of the region and the laws and policies that define rights and drive planning and programming. The first phase of the Institute’s Recovery in Context project, initiated in 2007, sought to develop this understanding amongst philanthropic organizations, primarily by educating on legal issues that drive or constrain wetland conservation and restoration as well as better storm protection measures.

"The Institute provides expertise at the unique intersection of deep local knowledge and a broad understanding of legal frameworks and policies. Complimented by an array of relationships, together these attributes enrich and accelerate progress toward addressing complex, multifaceted issues.” Gretchen Bonfert, Program Director-Environment McKnight Foundation

The second phase of the Recovery in Context program, implemented this past year, further developed the awareness of coastal restoration issues and opportunities among Gulf Coast recovery funders. This awareness consisted sharing of knowledge and understanding of the technical, legal and political elements in coastal restoration efforts and of sustainable coastal management. Dissemination of the Institute’s knowledge on these elements culminated in presentations at the Funders Forum on Sustainable Gulf Coast Transformation held in Mobile, Alabama in November of 2008. The Institute was vital in helping develop materials and ideas to support and shape the forum, such as designing panels and conducting briefings. The efforts and networking that emerged from the forum resulted in a letter to federal

policy makers drafted in part by the Institute and signed by twentythree philanthropic organizations. The success of this program would not have been possible without the generous support of its principal funder The McKnight Foundation

Education & Outreach Education is vital to the mission of the Institute and our commitment is evident both on and beyond campus. It extends from the classroom to newsrooms and from neighborhood meetings to national forums. Engaging Students Nothing is more fundamental to the Institute’s mission than providing educational opportunities to students, a challenge we meet through classroom teaching, encouraging student research, sponsoring student community service work, and supporting student organizations such as the Environmental Law Society. In the class room • • •

15 law students enrolled in the Water Resources Law and Policy course taught by Institute Director Mark Davis Guest lecture and field visit by Ann Yoachim for 24 students enrolled in public health course Population Environment Theory & Evidence Guest lecture by Mark Davis for freshmen enrolled in TIDES course Environmental Literacy

Beyond the classroom • • • • • •

Research Assistants (5 law students and 2 students from the University of New Orleans Center for Hazard Assessment, Response, and Technology) Directed Research (1 law student) Community Service (1 law student, 4 public health students) Center for Public Service (1 undergraduate student) Supported Public Interest Law Foundation relief drive for United Houma Nation Advisor and sponsor of Environmental Law Society’s Annual

Summit on Environmental Law and Policy •CAMPUS Advisor & (Mark Davis) to Environment COMMUNITY EDUCATIONMoot Court team

Percy Viosca Jr. Distinguished Speaker Series. This Institute speaker series features men and women who have played a pivotal role in shaping Louisiana’s environmental future. These events are open to the campus and broader community and are taped for rebroadcast as a community service by Cox Cable. This year speakers were Steve Stockton and Bill McKibben. Steve Stockton, the Director of Civil Works of the U.S. Army Corps of Engineers joined the Institute for a presentation in December 2008. His presentation, “How Katrina Changed the Corps and the Implications for Those Living With Water” was timely and informative for a community with so much riding on the plans and programs conducted by the Corps of Engineers. Bill McKibben, a world renowned author and climate change activist, spoke at the Law School in April 2009. His address to a standing-room only audience stressed the urgency of prompt and effect action to reduce the level of Bill McKibben, Author greenhouse gas emissions.

Restore America’s Estuaries National Conference. The Institute co-sponsored the 4th Restore America’s Estuaries National Conference, held in Providence, Rhode Island in October of 2008. The five day, widely-attended event featured the latest advances in scientific understanding of coasts and estuaries and best practices for all types and scales of restoration. The conference is considered the premier nationwide forum focused on advancing the science, pace, practice, scale, and success of coastal and estuarine habitat restoration. As a sponsor and participant, the Institute played a role in incorporating the non-profit, government, scientific, business, tribal, and academic sectors, and enabling networking and communication within the estuarine habitat restoration movement.

PUBLICATIONS, REPORTS, PAPERS, PRESENTATIONS

Publications The following publications were written by the Institute’s Director. •

Davis, Mark “Effective Coordination and Cooperation Between Ecological Risk Assessments and Natural Resource Damage Assessments: A New Synthesis”, Society of Environmental Toxicology and Chemistry Integrated Environmental Assessment and Management, October 2009

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Davis, Mark “Preparing for Apportionment: Lessons from the Catawba River”, Sea Grant Law and Policy Journal, June 2009

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Davis, Mark “To What End: Resilience, Tradeoffs, and the Lessons of Katrina”, Universities Council on Water Resources Journal of Contemporary Water Resources & Education, Volume 141, March 2009

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Davis, Mark “Not by Accident: Building a Sustainable New Orleans”, The American Prospect, March 2009

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Davis, Mark “A Whole New Ballgame: Coastal Restoration, Storm Protection, and the Legal Landscape After Katrina” Louisiana Law Review, Issue 2, Volume 68, Winter 2008

Presentations The following presentations were made by Mark Davis: •

April 2009 – Panel Moderator, “The River, Reimagined”, 14th Annual Tulane Law School Summit on Environmental Law and Policy (New Orleans, LA)

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April 2009 – Speaker, “Implications of Pending South Carolina v. North Carolina Case for Mississippi Valley States”, Sea Grant Law and Policy Journal 2009 Symposium, University of Mississippi (Oxford, MS)

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March 2009 – Speaker, “Law, Policy and the Comprehensive

Water Planning”, Society of American Military Engineers, New Orleans Chapter luncheon (Metairie, LA) •

March 2009 – Speaker, “A Toe in the Water: A Primer on Louisiana Riparian Law and Emerging Issues” Louisiana Mineral Law Institute (Baton Rouge, LA)

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March 2009 – Speaker, “Making Coastal Restoration Work: PRESENTATIONS Agency Authorities and Obligations”, U.S. Army Corps of Engineers Summit on River Diversions (New Orleans, LA)

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March 2009 – “Living With Water”, presentation to the Threshold Foundation (New Orleans, LA)

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January 2009 – Speaker, “Living With Water: How Safe Are We? How Safe Do We Want to Be?”, CPRA Flood Protection and Ecosystem Restoration Conference (Baton Rouge, LA)

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November 2008 – Presenter, “Living With Water”, New Orleans City Master Plan Citywide Public Meeting (New Orleans, LA)

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October 2008 – Panel Discussion Moderator, “Devil in the Details: The Legal Landscape and Coastal Restoration”, Restore America’s Estuaries National Conference (Providence, RI)

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October 2008 – Host, “Facing the Future: A Colloquium on the Role and Future of the White House Council on Environmental Policy” (Mt. Vernon, VA)

The following presentations and webinars were made by Ann Yoachim: •

July 2009 Poster “How Safe, How Soon: Building Resilience in Three Communities in Southern Louisiana” Natural Hazards Annual Workshop (Boulder, CO)

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June 2009 –Poster, “How Safe, How Soon”, American Association of Flood Plain Managers (Orlando, FL)

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April 2009 – Speaker, “From Katrina to Copenhagen”, Gulf Coast Fair Climate Summit (New Orleans, LA)

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April 2009 – Webinar Presenter, “Global Warming, Water Quality and the Future of Water Resources In The Southeast”, Southern Alliance for Clean Energy

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March 2009 – Speaker, “Defining Resilience: A Case Study of

Three Communities in Southern Louisiana”, American Association of Geographers Annual Conference (Las Vegas, NV) •

October 2008 – Speaker, “Half Full, Half Empty”, New Orleans Speaks (New Orleans, LA)

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October 2008 – Speaker, “Making Policy, Making History”, Restore America’s Estuaries National Conference (Providence, RI)

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October 2008 – Host, “Facing the Future: A Colloquium on the Role and Future of the White House Council on Environmental Policy” (Mt. Vernon, VA) PUBLICITY

Publicity The Institute remains an influential source for source for journalists, filmmakers, writers, and commentators seeking background and insights on water related matters. •

Television and Radio: The Institute has been featured on NPR, EarthBeat, Cox Cable, and local television and radio news programs in connection with a variety of water related issues.

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Film: Institute Director featured in the documentary “America Betrayed”

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Print: National/Regional/Local. The Institute has been quoted on water resource matters in the following publications:         

USA Today (July, Oct 2008) Time (Sep 2008) Chicago Tribune (Sep 2008) The Times-Picayune (July, Sep, Nov 2008; March 5 & 21 2009) The Christian Science Monitor (April 2009) New Orleans CityBusiness (April 2009) Gambit Weekly (Sep, Nov 2008) The American Prospect (March 2009) Daily Reveille (January 2009)

FUNDING

The Institute thanks the following funders for financial support in 20082009.

Henry Jackson Foundation The RosaMary Foundation Booth Bricker Fund Goody Clancy Blue Moon Fund Tulane/Xavier Center for Bioenvironmental Research National Audubon Society Lake Pontchartrain Basin Foundation Rocky Mountain Mineral Law Foundation Anonymous Individual Donors

Tulane Institute on Water Resources Law & Policy 6329 Freret St. New Orleans, LA 70118 Phone: 504.865.5980/504.862-5982 Fax: 504.862.8844 Website: www.law.tulane.edu/water