MS lawsuit over Bonnet Carré Spillway damage dismissed; harm to fisheries case continues
A federal judge has dismissed a lawsuit the state of Mississippi filed against the U.S. Army Corps of Engineers and others over damage to the Mississippi Sound caused by repeated openings of the Bonnet Carré Spillway.
U.S. District Judge Louis Guirola also dismissed similar claims in a separate lawsuit that a Coast coalition filed against the USACE and others over Bonnet Carré damages without dismissing the entire case.
The coalition’s lawsuit remains open because the judge did not dismiss a claim that the USACE violated the federal Magnuson-Stevens Fishery Conservation and Management Act by harming fishery habitats.
“We’re considering options after the court’s order,” said Ocean Springs attorney Robert Wiygul, who represents the coalition.
“In the meantime, the Corps should remember that it’s never the wrong time to do the right thing. The Corps should respect the citizens of the coast and prepare a full Environmental Impact Statement. Meanwhile, we will pursue our claim that the actions of the federal defendants violate their duty to avoid harm to fisheries habitat.”
Guirola ruled Monday that the federal court has no authority to direct that the USACE complete a full environmental study on how more frequent openings of the Bonnet Carré have affected marine life in the Mississippi Sound.
Corps opens Bonnet Carré more often
The Bonnet Carré has been opened 15 times since its completion in 1931. But six of those openings have been in the past 10 years, as flooding has become more frequent, with four of the openings between 2018-2020.
The USACE opens the Bonnet Carré when the Mississippi River threatens to flood New Orleans, releasing river water into Lake Ponchartrain and the Mississippi Sound beyond.
During prolonged openings, the river water reduces salinity levels in the Sound, killing oysters and dolphins and harming other aquatic species. The river water also has led to potentially toxic algae blooms in affected waterways, threatening aquatic life and closing waters off the sand beach to residents and tourists.
“Fresh water intrusion causes decreased salinity levels and results in adverse consequences to the Mississippi Sound and Mississippi Gulf Coast.” Guirola’s ruling says. “However, federal courts are courts of limited jurisdiction.”
Secretary of State Delbert Hosemann, who is now lieutenant governor, filed the state’s original lawsuit against the USACE and MRC.
The coalition that sued the USACE and Mississippi River Commission, which advises the USACE on flood control, includes Harrison and Hancock counties; the cities of Biloxi, D’Iberville, Waveland, Pass Christian and Diamondhead; the Mississippi Hotel and Lodging Association; and Mississippi Commercial Fisheries United.
In both cases, Guirola said he could not order the USACE to study the environmental impacts of the river opening because the operations have been in place since 1927, when federal flood control law was adopted. No new “major federal action” has taken place that would allow a federal court to intervene and require an environment impact study, he ruled.
“The increase in operation of the Bonnet Carré is merely a response to changing conditions — varying precipitation levels and other environmental conditions,” he wrote.
In addition, Guirola dismissed the Mississippi River Commission from the two lawsuits, ruling that it is an advisory body, not a federal agency.
A third lawsuit is still pending before Guirola against the USACE, MRC, U.S. Fish and Wildlife Service and the National Marine Fisheries Service over damages to endangered species, including Kemp’s Ridley sea turtles and piping plover shorebirds, from Bonnet Carré openings. That lawsuit was filed later than the other two by nonprofit environmental groups Defenders of Wildlife and Healthy Gulf.
