Budget deal rider allows La. restoration to harm dolphins
Ariel Wittenberg, E&E News reporter
Published: Thursday, February 15, 2018
A provision tucked into the spending deal passed by Congress last week exempts a Louisiana wetlands restoration project from federal protections for dolphins.
The language gives NOAA Fisheries 120 days to issue a waiver for two sediment diversion projects along the Mississippi River, exempting them from provisions of the Marine Mammal Protection Act that prohibit the "taking" of dolphins by actions that could kill them, harm their health or disrupt their habitat.
The law also states that "no rulemaking, permit, determination or other condition limitation shall be required when issuing a waiver."
The move is backed by a coalition of local and national environmental groups who argue the restoration project is critical to protecting Louisiana's coast from sea-level rise, and could actually help local bottlenose dolphins in the long term.
The efforts in question are "sediment dispersal" projects that aim to restore what was once the natural flow of the Mississippi River before its extensive levee system constricted the waterway.
That would occur through building two channels south of New Orleans to bring fresh river water, along with the silt and sand it carries, to the nearby Barataria Bay and Breton Sound. There, the silt and sand will build up on wetlands that have been long starved of sediment, building them up to combat sea-level rise and subsidence.
While the divisions will help mitigate the impacts of climate change and sea-level rise on Louisiana's coast, they could harm bottlenose dolphins that live in Barataria Bay and Breton Sound.
Flushing fresh water from the Mississippi River into the bay and sound will change the salinity of those bodies, potentially making those areas hostile to dolphins.
NOAA Fisheries estimated in 2015 that 2,800 dolphins live in the areas at issue, and that sediment diversions "would essentially eliminate suitable estuarine and nearshore coastal habitats for the Barataria Bay and Mississippi River Delta dolphin stocks," the New Orleans Times-Picayune reported.
Dolphin populations have been struggling since the 2010 BP PLC Deepwater Horizon oil spill, with Barataria Bay one of the most heavily oiled areas at the time. Scientists have estimated more than 1,000 dolphins died between the spill and 2016, and some have also had trouble reproducing (Greenwire, Nov. 4, 2015).
Despite the dolphin impacts, the diversions also have the support of a coalition of three national and two local environmental groups called Restore the Mississippi River Delta.
Steve Cochran, an assistant vice president with the Environmental Defense Fund, said state officials asked the Louisiana congressional delegation for legislative help after NOAA Fisheries employees made clear it could take up to five years to determine what impacts the project could have on bottlenose dolphins.
"We had tried to tell them that these projects actually have the same intent of the Marine Mammals Protection Act — to restore natural aquatic ecosystems — and they said they understood that but that it was really unlikely they could sign off on our permit after the five-year process of studying the issue," Cochran said.
$15 billion plan
Louisiana leaders have become increasingly worried about the state's eroding coastline ever since Hurricane Katrina. And the $2 billion sediment diversions, which will be paid for with BP oil spill fines, represent the first projects in what is a $15 billion coastal restoration plan for the state.
David Muth, Gulf restoration chief at the National Wildlife Federation, said his group supports the new language because Louisiana has already lost 1,900 square miles of coastline because of sea-level rise and subsidence, and stands to lose another 1,900 square miles in the next 50 years thanks to climate change.
The fresh water from diversions might disturb the dolphin populations, but he says the "future without action" is similarly bleak because it could lead to "collapsing estuaries" and loss of habitat for the fish that the bottlenose dolphins prey on.
"The Catch-22 here is that if you freshen the estuaries, you may harm the dolphins," he said. "That's conjectural, no one knows if it will really happen — but if you don't freshen them, everything turns into the Gulf of Mexico."
Cochran and Muth also note that Barataria Bay and Benton Sound haven't always been dolphin habitat. Before the Mississippi levee system was built in the 1930s, those areas were mostly freshwater marshlands.
After the levees were built, the marshlands lost their regular influx of sediment and fresh water, causing them to become steadily saltier and more open, attracting dolphins.
"If you go back not very long, just a few decades, you have fewer and fewer dolphins," Cochran said. "These species have gradually migrated based on the levels of salinity."
While any action that could disrupt marine mammals' habitat is considered an illegal "taking" under the Marine Mammals Protection Act, Restore the Mississippi River Delta believes the dolphins will be able to adjust.
They note the diversions will not be continuously operating, allowing dolphins to swim in and out of the bay and sound as salinity levels fluctuate.
"They aren't going to be trapped in a place with only fresh water," Cochran said. "They'll move in and out based on the salinity and whether the diversions are flowing."
While environmental groups "always have to be concerned" about creating loopholes for development projects, particularly as the Trump administration is pushing to reform environmental permitting requirements, Cochran said "it is extremely unlikely that a development project could use this as precedent."
The provision in the budget deal specifically recognizes the "consistency" between the purpose of the sediment diversion projects and the Marine Mammal Protection Act "regarding maintaining the health and stability of the marine ecosystem."
It also specifies the efforts with NOAA Fisheries to minimize impacts on marine species, as well as monitor the projects as they are operated to evaluate their impacts.
"This language makes very clear that our purposes are in line with the Marine Mammal Protection Act, so the precedential value of this is very, very small," Cochran said.
"If there are other environmental restoration projects whose sole purpose is environmental restoration, that could happen. But I don't see that development projects will pass this kind of test. We're not building an oil rig or a parking lot."