Water management – whether for navigation, flood control, public health, or environmental purposes – is more than a matter of science and engineering. Laws and policies also determine how we manage water. These laws and policies are growing in importance as global warming, imperiled freshwater supplies, and coastal erosion take their toll in Louisiana and around the world. Solutions can only come through a new generation of informed, purpose driven actions. The Institute seeks to find harmony between law and policy, science, and engineering to develop water management solutions that will address these global water issues. The scope of our work makes the Institute a unique vehicle for legal and policy thinking, one that looks beyond the abstract to consider the nuts and bolts of how to make good decisions in time for them to matter.
Financing the Future
Two things are clear about living in a sinking city in a disappearing coast: It is going to take bold action and lots of money to cope with the forces of a changing coast and a changing climate. Less clear but no less important is the that fact success is going to require lots of creative lawyering, the sort of lawyering offered by the Institute on Water Resources Law and Policy. Nothing demonstrates this better than the Institute’s ongoing work to probe the possibilities for financing the vast array of projects and programs that have been touted as necessary to save coastal Louisiana and is communities. Ultimately, several papers will be published to address the cost of state, regional, and local plans to restore and to make resilient South Louisiana. Financing the Future I was published in the fall of 2014 and estimated the true cost of coastal restoration at over $100 billion, a figure now widely accepted. Financing the Future II was published in the fall of 2015 and examines what funds are already in place and what strings they are tied to. Financing the Future III, "Financing Options for Coastal Protection and Restoration in Louisiana" was released in January 2017.
This project is an outgrowth of our Financing the Future project and the State’s 2017 Master Plan for Coastal Protection and Restoration. The Institute was successful in getting the State to include language in the Master Plan recognizing that a changing coast will not only impact the ecology of the coast but the economic viability of coastal parishes, communities, and businesses. Specifically, we worked with the State to recognize that the tax bases of communities and the financeability and insurability of governments and business will be dramatically affected by whatever is or isn’t done. In short, those communities and businesses are reaching tipping points that need to be understood and planned for. The critical need to understand those tipping points is underscored by the fact that Master Plan relegates most of the “nonstructural” responses to coastal change to local governments to figure out and fund. For much of our coast this is the only option available and the costs will be counted in the billions of dollars, dollars few—if any—local governments have the present ability to raise. Our work looks at a variety of communities to identify their legal, financial, and decision-making capacity to do what the Master Plan envisions them doing. We are keenly aware that our job is not to pronounce on the fate and future of those communities. On the contrary, our aim is to prepare them, the state, and those in the private sector for the kind of clear-eyed discussion about options and capacity that are going to be needed and needed soon. This project calls on skills beyond those we have in house so we are collaborating across the Tulane campus, with The Water Institute of the Gulf, the City of New Orleans, and others (including the insurance and financial sectors).
This work is being led by Institute director Mark Davis and senior research fellow Kristen Hilferty.
Louisiana Water Code
In the recipe to save and protect coastal Louisiana the only ingredient more important than solid science, engineering and money is water. But the use of water is controlled by laws and policies, laws and policies that Louisiana does not currently have. That makes the business of crafting a suitable “water code” the Institute’s business. Not just any set of water laws but one that is suitably comprehensive as well as being grounded in ecologic and hydrologic reality (an approach that is more novel than one might expect). The project was spurred by work done at Louisiana’s Water Resources Commission, the Louisiana State Law Institute, and Senate Resolution 171 (2014). Director Mark Davis is now leading the LSLI Water Code Committee called for by SR 171 (2014). The Institute has brought together a multidisciplinary team to shape and guide this effort and to keep it connected to the efforts of the State Law Institute and the Water Resources Commission. The Institute has signed a memorandum of understanding with The Nature Conservancy, and is coordinating with The Water Institute of the Gulf and others to bring together a water budget and modeling system for the state that can not only tell what water is available and needed now, but what may be available and needed decades in the future. Various aspects of comparative water law and administration continue to be evaluated for reference by the Institute and partners such as LSU Sea Grant Legal. The project will take years to complete and will likely proceed in phases that are tied to current and emerging water management challenges such as those posed by hydraulic fracturing for oil and gas, coastal restoration, and climate change.
As an outgrowth of the comparative water law research, we have begun to form an online water law atlas that compares water laws across all fifty states. As we continue to develop the water law atlas, we will look for ways to maximize its usefulness to water lawyers and scholars while developing and deepening the partnerships necessary to carry this work forward.
The Institute’s water code project is led by program manager Christopher Dalbom and is supported by post-graduate senior research fellow Jamie Huffman.
Pathways to Decisions
Having plans is one thing, implementing them is another. That is a lesson that is reinforced by the State’s coastal restoration program and the City of New Orleans Urban Water Plan. The plans rely heavily on science, engineering and community support. Implementation is more often a question of law, policy, dollars and (as ever) community support. Most of the time the Institute is the only voice for law, policy and financing in the room with the planners and advocates. Now that the State and City have developed bolder, more comprehensive plans for water stewardship and community resilience, it is crucial to know what, when and by whom decisions need to be made, in order for those plans to become reality. This is an area to which the Institute has devoted significant time and effort.
For example, now that the State has decided to take the lead in implementing key coastal restoration projects (i.e., not relying on federal agency as a partner) it has discovered that it must comply with an array of federal and state laws such as the National Environmental Policy Act, Clean Water Act, Marine Mammal Protection Act, Endangered Species, Fair Housing Act and the Louisiana Public Trust Doctrine, steps that previously were not applicable or were handled by its federal project partners. Compounding these complexities is the fact that regulators have not prepared to handle projects of this scale or criticality. In short, traditional compliance with laws could defeat the purpose of those very laws. This cannot be planned around by engineers, scientists or activists; it demands clear, focused lawyering. This is exactly what the Institute has anticipated. By focusing our own scholarship and directing student research and articles, we have been able work on critical questions regarding the application of the Clean Water Act, Marine Mammal Act, NEPA and Louisiana public trust law. Because of our work in these areas we have recently been invited to meet with the Louisiana Governor’s office, the Army Corp of Engineers and leading coastal advocacy groups. Our work does not remove these hurdles, but it does illuminate pathways to getting decisions made and resolving disputes.
Coastal Change Collaborations
Louisiana and New Orleans are not the only places coming to terms with rising seas and changing water resources, and we cannot afford to ignore the potential for learning from others elsewhere or the potential risks of allowing issues to arise and be addressed elsewhere that foreclose options here. Places like Norfolk, VA, Miami, FL, and lower New York City are all facing versions of what Louisiana and New Orleans are facing. Therefore, the Institute is part of an emerging network of cities, businesses, NGO, and universities devoting time and energy to figuring out ways that they can assess risks and opportunities while also marshaling their ability to shape meaningful responses to them. By way of example, the Institute is at the heart of a growing collaboration with Old Dominion University, William and Mary, and the Virginia Institute of Marine Science. This collaboration focuses on ways our institutions can better bring their academic resources to bear on fundamental challenges to our communities’ sustainability while always keeping in mind that our institutions’ futures depend on those of the communities where we live and serve. We cannot overemphasize the importance of these collaborations. Perhaps the ultimate barrier to doing the things that should be done is that few institutions—governmental, civic, commercial, or academic—were set up to plan and act at the pace and scale coastal and water resource changes are going to demand. These collaborations are an effort to change that.
Water stewardship and community resilience demand professionals who can help shape and shepherd them. A fundamental tenet of the Institute is our commitment to training a new generation of those professionals. At the heart of that commitment is our postgraduate fellowship program. This year our fellows have played leading roles in carrying our Financing the Future, Water Code and other projects. In addition to that, our use of research assistants, public interest students, and directed research students allowed us to employ and teach several students a semester. These students—and our relationships with them—are integral to the premise and success of this Institute.
The Tulane administration has made clear that Tulane will become a leader in interdisciplinary community-focused water stewardship and community resilience and sustainability. The Institute’s history of exactly that kind of work has been a significant contributing factor in the evolution of that vision. Tulane has realized that it must have a stake – not only as an academic interest, but as a means of its very self-preservation – in these issues. Therefore, Tulane University asked Institute Director Mark Davis to also assume the leadership of Tulane’s newly created ByWater Institute. The BWI is a unique program that embodies Tulane’s commitment to a holistic approach toward dealing with water and resilience. The BWI can draw from a campus-wide pool of talent and programs, spur interdisciplinary collaborations, and facilitate collaborations with the wider community. The Institute and BWI integrate their programs to achieve optimal reach and effectiveness. In many ways, it is a pioneering effort by a major university to shift from studying problems to helping to solve them.
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