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Streamlining, Dolphins & Coastal Restoration: How might the proposed Streamlining Environmental Approvals Act of 2017 affect coastal restoration efforts?

S. Beaux Jones - 

Depending on your location, industry and interests, the concept of “streamlining” environmental review processes may invoke either chest pains or a standing ovation. However, as with most issues in Louisiana, it is slightly more complicated. As the state works to construct coastal restoration projects designed to protect what is left of coastal Louisiana, authorities are finding potential roadblocks in laws and regulations that are also in place to ensure the protection of the very same ecosystems.

Take for example the $1.3 Billion Mid-Barataria Sediment Diversion, which is a cornerstone of the 2017 Coastal Master Plan. For this project, there are potentially 82 different federal laws and executive orders for authorities to navigate during the environmental impact review process; the Marine Mammal Protection Act of 1972 (“MMPA”) being one of the most troublesome. The conflict arises from the fact that the diversion project seeks to divert sediment and freshwater into Barataria Bay, where a stationary population of bottlenose dolphin lives in a delicate balance of brackish water. Computer models have shown that when the diversion is running at capacity, it could drop salinity to below eight parts per thousand for months at a time, which is lower than the 14 parts per thousand preferred by the dolphins. Under the MMPA, such a disturbance to the population could result in an “incidental take”[1], requiring prior approval from federal authorities.[2] No such prior approval has been requested, but according to a representative of the National Oceanic and Atmospheric Administration[3], the agency will require a review of the impacts before the project is constructed. Because coastal land loss and sea level rise do not take breaks to allow for permitting, the time that it will take to address these concerns are potentially more relevant than the merits.

A recent bill proposed by the majority of Louisiana’s congressional delegation led by Rep. Mike Johnson (R-Bossier City) seeks to put environmental permit streamlining and the MMPA front and center. The Streamlining Environmental Approvals Act of 2017 or the SEA Act of 2017,[4] proposes amendments to Section 101(a)(5)(D) of the MMPA to “reduce unnecessary permitting delays by clarifying associated procedures to increase economic development and support coastal restoration programs….” Although recently touted for its potential impact to the oil and gas industry’s use of acoustic seismic survey, the proposed legislation is worth following from a coastal restoration perspective, as well. According to the SEA Act’s author, Rep. Mike Johnson, the bill streamlines the MMPA review process by:

The SEA Act of 2017, being championed by a freshman representative, has a long and arduous journey on Capitol Hill if it is ever to become law. But, for now, the issue is in consideration by the House of Representatives Natural Resources Committee: Subcommittee on Water, Power and Oceans. However, as for the Mid-Barataria Sediment Diversion, the permitting process is already underway, so the window to make changes to the applicable legal structure for this particular project is closing quickly.

To track the progress of the SEA ACT of 2017, follow along here.

To track the Mid-Barataria Sediment Diversion permitting process, see here.

If you have questions regarding this matter or other issues regarding coastal or environmental law, please contact Beaux Jones at (504) 569-2900 or bjones@bhbmlaw.com.


[1] “Take” is defined under the MMPA, 16 U.S.C. 1362 as “to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal,” and the related regulation 50 C.F.R. 216.3 as “”to harass, hunt, capture, collect, or kill, or attempt to harass, hunt, capture, collect, or kill any marine mammal.”

[2] http://www.nmfs.noaa.gov/pr/permits/incidental/

[3] http://thelensnola.org/2017/02/21/to-rebuild-the-coast-louisiana-must-show-its-massive-river-diversions-wont-kill-native-dolphins/

[4] H.R. 3133, 115th Congress (2017).

[5] https://mikejohnson.house.gov/media/press-releases/rep-johnson-introduces-bill-streamline-environmental-approvals


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