It could soon become easier to build in Louisiana wetlands

Yahoo

04-06-2025

Photo of cypress trees in the Atchafalaya River Basin. Environmental groups like the Atchafalaya Basinkeeper and Sierra Club worry a new bill will make it easier to develop in isolated wetland areas. (Elise Plunk/Louisiana Illuminator)
In a stretch of wild land in Iberville Parish, a small dirt dam built across an out-of-the-way bayou is at the center of a lawsuit. Environmental advocates fear cases like this could become more common if a Louisiana proposal to redefine its wetlands becomes law.
Opponents say this proposed change doesn't just open doors for mixed legal interpretations; it could also make it easier to erase valuable wetland habitat and build in flood-prone areas.
The lawsuit was filed in the U.S. District Court for the Middle District of Louisiana in Baton Rouge two years ago by the environmental group Atchafalaya Basinkeeper and the Louisiana Crawfish Producers Association-West. They allege Benjamin Miller of Miller Hunting Club in Eunice illegally dammed Pat's Throat Bayou in 2021 to access hunting grounds on the other bank.
The hunting club didn't get a permit from the U.S. Army Corps of Engineers before Miller built the dam, according to the lawsuit. Instead, the plaintiffs claim the USACE granted a permit after the dam was illegally built.
If the Louisiana Legislature approves a proposed update to its wetlands laws, environmentalists fear property owners and developers will argue that wetlands like these – illegally dammed off from a navigable body of water – shouldn't be protected under state or federal law.
'There will be lawsuits,' said Margie Vicknair-Pray, conservation coordinator for the Sierra Club Delta chapter. 'They're changing the definition, but that doesn't change reality.'
Mirroring Sackett
Pat's Throat Bayou is a window into how a national policy shift could affect Louisiana.
A 2023 Supreme Court decision, Sackett v. Environmental Protection Agency, narrowed federal protection for wetlands. The case arose from an Idaho family who backfilled their property, which the EPA later determined to be protected wetlands. The Sacketts challenged that determination, arguing successfully their land did not connect to a navigable water body – known in federal law as Waters of the United States (WOTUS).
Before Sackett, developers needed a permit from the Army Corps of Engineers to dredge or fill a wetland area protected under the federal Clean Water Act.
The Sackett ruling also left uncertainty as to where navigable channels under WOTUS begin and end when it comes to wetlands, according to Mark Davis, director of the Tulane Center for Environmental Law.
'They didn't define exactly how that's going to play out … and people will agree and disagree where those lines are drawn,' Davis said.
This means owners and developers might not need permits from the USACE to build in isolated wetland areas. The grey area has prompted states to step in and try to fill the regulatory gap with their own wetlands laws.
Louisiana state Sen. 'Big Mike' Fesi, R-Houma, has sponsored Senate Bill 94 in response to the Sackett decision. His bill looks to redefine wetlands cut off by levees that break their connection to navigable water bodies as 'fastlands,' disqualifying them from federal protection.
Fesi said in an interview his bill is meant to bring Louisiana law in line with the Sackett decision.
'We try calling everything wetlands just because it has a little water in it,' Fesi said. 'It's gotten way out of hand.'
The Sackett ruling does not affect wetlands connected to navigable bodies of water, such as the Mississippi River, or tidal wetlands along Louisiana's coast. They would still have federal protection under the Clean Water Act.
Wetlands with levees, either through 'current or future lawful construction,' are left more vulnerable in Fesi's proposal. The senator did not give a conclusive answer when asked what will happen to current wetlands cut off by future levees, saying his bill was intended to invite room for individual interpretation
'One size doesn't fit all,' he said.
That's exactly the issue wetlands advocates have with Senate Bill 94 – the room for interperetation it leaves for how wetlands are defined.
In the case of Pat's Throat Bayou, the argument was over whether wetlands connected to the navigable bayou were cut off legally or illegally when Miller built a dam, said Brennan Spoor, a member of Atchafalaya Basinkeepers. The group's mission is to protect and restore the swamps and waterways of the basin.
'The bill applies to all [levees and dams] that are currently existing or future ones that are lawfully constructed,' Spoor said.
'You could argue that the dam was lawfully constructed, and therefore the wetlands that they have destroyed since they built the dam were never wetlands at all,' he added, explaining that the bill tries to eliminate the need for a federal permit if the property owners want to dredge or fill the landscape.
The exact language of the bill is also concerning to legal experts for the confusion they say it will create in the law.
Fesi's bill changes the definition of wetlands under the Louisiana Pollutant Discharge Elimination System, the program that regulates contamination released into surface waters. But Louisiana still needs to follow federal law for pollutants.
'The notion of a continuous surface connection is not really part of the rule for what a pollution discharge covers,' Davis said. 'If anything, it creates deeper confusion rather than clarification.'
The Louisiana Senate approved Fesi's bill Tuesday in a 35-1 vote. It heads next to the governor for his signature.
Flood concerns
As legal arguments mount, environmental advocates say the stakes are high for Louisiana. Building in wetland areas eliminates valuable habitat and increases the risk of flooding in nearby communities, Vicknair-Pray said.
'People just want to build where they want to build, and they don't want to think of the long-term consequences' like habitat loss and flooding, she said. 'That water has to go somewhere. We need wetlands for that water to back up into.'
When asked about flood concerns, Fesi said he thinks his bill would make it easier to construct and repair levees, aiding with much-needed flood control in some areas and 'promoting individual property rights' for those wanting to build in previously defined wetlands.
'Those aren't wetlands,' Fesi said, speaking about wetland areas surrounded by levees or cut off from bodies of water.
The 2023 Louisiana Coastal Master Plan, a document outlining various coastal restoration and flood protection projects, recommends a combination of wetland resources and manmade levees for flood control. The same document also warns that overengineering rivers like the Mississippi can 'impact coastal wetlands and undermine their ability to replenish naturally.'
'The marsh behind a levee is going to die,' Vicknair-Pray said.
Aside from just diminished natural flood control, she worries wildlife living in isolated wetland areas, including migrating ducks and native reptiles, will be put at risk with development encouraged under Fesi's legislation.
'We used to consider this Sportsman's Paradise,' she said. 'I don't think we can say that anymore.'