Federal court says Corps must work with fisheries before opening Bonnet Carre

The U.S. District Court ruled Wednesday that the U.S. Corps of Engineers must consult with the National Marine Fisheries before opening the Bonnet Carre Spillway in future.

U.S. Judge Louis Guirola Jr. issued the order Wednesday, granting summary judgment to the plaintiffs in a lawsuit that dates back to 2019.

“The Coast finally has a foot in the door through the National Marine Fisheries Service for our voices and scientific facts to be heard to prevent the death of the Mississippi Sound,” said Mayor Andrew “FoFo” Gilich.

“We hope the Corps will look at this decision as an opportunity to protect the people of Mississippi instead of fighting them,” commented Robert Wiygul, lead attorney for the plaintiffs.

The lawsuit was filed by the Mississippi Sound Coalition, consisting of Harrison and Hancock counties, along with the cities of Biloxi, D’Iberville, Waveland, Pass Christian and Diamondhead, the Mississippi Hotel and Lodging Association and the Mississippi Commercial Fisheries United.

“Our next step is to offer our facts and mitigation methods to National Marine Fisheries Service for use in meetings with the Corps as directed by the Federal Court,” said Gerald Blessey, Manager of the Mississippi Sound Coalition.

The order states that the Corps is ordered to consult with the National Marine Fisheries Service regarding impacts of Spillway openings as required by the MSA. The Corps must begin consultations as soon as possible and be completed before September 30. The court will retain jurisdiction over the matter to ensure compliance.

The Plaintiffs contended in the lawsuit that Corps decision to make more frequent, lengthier openings of the Bonnet Carre Spillway in recent years caused significant damages to the environment and economy of the Mississippi Gulf Coast.

The plaintiffs said the Sound, Lake Pontchartrain and Lake Borgne are essential fish habitats governed by the Magnuson-Stevens Fishery Conservation and Management Act.

As such, the Corps failed to consult with the Secretary of Commerce on the habitats, issued water control plans and made specific decisions to open the spillway without consultation.

The Corps countered, saying the plaintiffs do not have standing to pursue a claim under the Magnuson-Stevens Act. They also asserted there is no connection between the injuries claimed and the Corps’ failure to consult with the National Marine Fisheries Service.

The Corps also said the plaintiffs said it their own declarations that “other factors, including the BP Oil spill, hurricanes, blue green algae, negative media reporting and a perception of tainted seafood contributed to their loss of tourism and oyster fishing.

In 2019, the Corps opened the Spillway, releasing millions of gallons of “fresh” but polluted water from the Mississippi River into Lake Ponchartrain and the Mississippi Sound, causing toxic algae bloom and lowered the salinity that damaged habitats for oysters, blue crabs, shrimp, dolphins, sea turtles, and many other species. MDEQ closed Coast beaches

The Bonnet Carré Spillway is supposed to be opened when necessary to avoid flooding New Orleans, but in 2019 the Corps did not open the Morganza Spillway that empties west of the Mississippi into the Atchafalaya Basin, which would have reduced and possibly avoided the discharge into the Mississippi Sound.

“We are thrilled that finally the U. S. Corps of Engineers will be required to consider the tremendous damage to our Mississippi Sound from impacts of Spillway openings, ” said Harrison County Supervisor Beverly Martin. “We hope the National Marine Fisheries Service will protect our Sound and the Gulf for all our citizens. I am proud that the Board of Supervisors of Harrison County participated in the lawsuit to gain some input in Corps decisions which have so severely impacted our way of life along the Mississippi Gulf Coast.”

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