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.
In a sinking city on a disappearing coast, it is going to take bold action and lots of money to cope with the forces of a changing coast and climate. What is less obvious, but equally important, is that 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 its communities. Ultimately, several papers have been published to address the cost of state, regional, and local plans to restore and to make South Louisiana resilient. 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 2005 and examines what funds are already in place and the 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 aims to analyze how a changing coast affects economic viability of coastal parishes, communities, and business. The Institute was successful in getting language included in the Louisiana 2017 Master Plan recognizing that a changing coast affects these parties. 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 is not done. In short, those communities and businesses are reaching tipping points that need to be understood and planned for, which is underscored by the fact that the 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 that local governments do not have the ability to raise.
We are keenly aware that our job is not to pronounce on the fate and future of those communities, but rather 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 motivates the Institute to collaborate with the community, including those across the Tulane campus, The Water Institute of the Gulf, the City of New Orleans, and others in the insurance and financial sectors.
Water is crucial to protect coastal Louisiana, and its use must be controlled by laws and policies that Louisiana does not currently have. The Institute is crafting a suitable water code using the novel approach of grounding it in ecologic and hydrologic reality and aiming it at the purposeful use of water to meet the climate needs and new economic opportunities of the 21st Century. This project was spurred by work at Louisiana's Water Resource Commission, the Louisiana State Law Institute, and Senate Resolution 171 (2014). Director Mark Davis leads the LSLI Water Code Committee called for by SR 171 (2014). The Institute has brought together a multidisciplinary team to guide this effort and keep connected with the efforts of the State Law Institute and the Water Resources Commission. The Institute has partnered with researchers at The Nature Conservancy, The Water Institute of the Gulf, and others to create water budget and modeling systems to determine the state's current water resources and its future needs. Assistant Director Christopher Dalbom and a bevy of postgraduate and student researchers have undertaken study of comparative water law and water administration by other states and countries. Now, the Institute and the State Law Institute's Water Code Committee have begun the process of drafting a proposed comprehensive water code for the state of Louisiana.
State and local plans for coast and climate emphasize the importance of plan implementation in addition to creation. Implementation is more often a question of law, policy, dollars and 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 plans to become reality, which the Institute has heavily researched.
Since the state has taken the lead in implementing key coastal restoration projects and is not relying on partnerships with federal agencies, it discovered it must comply with various 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. Compounding these complexities is the fact that regulators have not prepared to handle projects of this scale. 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. By focusing our own scholarship and directing student research and articles, we have been able to work on critical questions regarding the application of these laws. Because of work in these areas, we have 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 illuminates pathways to getting decisions made and resolving disputes.
Louisiana and New Orleans are not the only places coming to terms with rising seas and changing water resources. We cannot afford to ignore the potential of learning from others or the potential risks of not addressing issues around the country that can affect Louisiana. 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, NGOs, and universities devoting time and energy to figuring out ways that they can assess risks and opportunities while marshaling their ability to shape meaningful responses. A growing collaboration with Old Dominion University, William & Mary, and the Virginia Institute of Marine Sciences is focusing on the ways this collaboration can bring academic resources to analyze fundamental challenges to communities' sustainability while understanding our dependence on our communities we live in and serve for the future. We cannot overemphasize the importance of these collaborations. Perhaps the ultimate barrier to doing what 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, which these collaborations are looking to change.
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