Living with Water

Tulane Institute on Water Resources Law &

Policy
Annual Report 2008-2009

Authors

Mark Davis,
Director

Ann Yoachim,
Program Manager
 Overview

The 2008-09 year saw major developments on the water law and policy
front and in the programming and profile of the Institute. The election
of a new president and congress presage a new era of public works and
greater attention to issues such as climate change, rising seas, and
ecosystem stewardship. Another active hurricane season, persistent
droughts, and chronic regional water shortages served as reminders
that the ways we manage water—and for whom—matters in the most
fundamental way.

One clear lesson from the developments of the past year is that water
is increasingly a resource that defines both risk and opportunity. It is
increasingly the critical common denominator that links environmental,
transportation, energy, climate, health, and cultural policies and
programs. The interplay between state and federal laws, public and
private rights, traditional and emerging water uses, and domestic and
international policies and programs promises to become more complex
in the future in ways that demand both a deeper understanding of
current laws and policies and innovative approaches. This, of course,
fits squarely within the mission of the Institute.

The Institute’s approach to its mission and programs is as multifaceted

as water itself. Through our partnerships, programs, and publications
we:

Stimulate an appreciation, understanding, and discussion of

the role and value of water in our society and of the importance of law
and policy its management and stewardship;

Educate our students, the legal community, policy and decision

makers, and the public about the legal regimes that control water use
and management;

Advise policy and decision makers, the legal community,

advocates, and community leaders about developments in field of
water law and policy; and

Consult on the development of water related policies and

programs.
 2008-2009 HIGHLIGHTS

The depth and range of the Institute’s efforts can be seen in some of
our program highlights for the last year.

• Hosting a symposium on the future role of the White House Council

on Environmental Quality and releasing a blue-ribbon report
containing specific recommendations on focusing and strengthening
that important office.

• Consulting to the City of New Orleans on the development of water

management and hazard mitigation aspects of the city’s new
master plan.

• Providing advice to the Governor’s office and the Louisiana Attorney

General’s office on emerging water issues.

• Providing advice and guidance to members of Congress and

congressional staff on water resource issues.

• Educating local leaders and the philanthropic community about the

roles water plays in planning for the recovery and future resilience
of Gulf Coast communities.

• Helping communities understand coastal restoration and civil works

programs so they can better understand and contribute to the far
reaching plans being developed by the State and the Army Corps of
Engineers and make better decisions at the individual and
neighborhood level to increase their level of protection from and
resilience to water driven risk through the “How Safe, How Soon?”
collaborative project.

• Educating the legal community and broader public about the

importance of having a coherent and purposeful approach to living
with, managing and regulating water through articles, interviews,
and presentations.

• Stimulating public thought and discussion about emerging and high

profile issues through our Percy Viosca Distinguished Speaker series.
This year’s featured speakers were the prominent author and
environmentalist, Bill McKibben, and the Director of Civil Works for
the Army Corps of Engineers, Steve Stockton. These presentations
were open to the public and rebroadcast on Cox Cable.
 GOVERNANCE

The Institute is a program of Tulane Law School. The Institute’s

programs are developed to be consistent with its founding mission and
the educational and public service missions of the Law School and the
University. To help shape and guide its work the Institute has two
advisory boards, one internal drawn from members of the Law School’s
environmental faculty, and one external composed of individuals with
diverse and distinguished experience in planning and water law, policy
and management.

The Institute’s internal advisory board members are:

• Prof. Oliver Houck

• Prof. Gunter Handel
• Prof. Adam Babich

The Institute’s external advisory board includes:

• James T. B. Tripp, General Counsel, Environmental

Defense, New York City
• R. King Milling, Chairperson, Governor’s Advisory
Commission on Coastal Conservation, Restoration,
and Protection, New Orleans, Louisiana
• Keith Colvin, Partner, McGlinchey Stafford, New
Orleans, Louisiana
• Allen Eskew, Principal, Eskew, Dumez, New Orleans,
Louisiana
• Robert Dawson, CEO, Dawson and Associates,
Washington, DC
• Linda Walker, JD, (Past member of Louisiana
Groundwater Management Commission), New
Orleans, Louisiana
• Eric Dannenmaier, Associate Professor of Law,
Indiana University Law School, Indianapolis, Indiana
• Jerome Ringo, President, Apollo Alliance, San
Francisco, California
 Program
Developments

The theme “Living With Water” runs through all of the Institute’s
programs. The combined effects of climate change, wetland loss,
storm damage, and growing competition for freshwater promise to
redefine society’s relationship to water and how we live with--or
without--water. Indeed, they already are. Preparing for this new reality
is not just a matter of science, engineering and popular desire. It is
also fundamentally about the laws and policies that define our current
approaches to controlling and planning for water. Ultimately it is about
having laws and policies that allow a new generation of water resource
related decisions and actions to be taken. Stimulating thought and
discussion about the future of water resource stewardship and control
and the architecture of the supporting laws and policies is at heart of
the Institute’s work.

Because of the cross-cutting nature of water issues the Institute’s

programs often involve collaborations with academic institutions, the
legal community, community organizations, the non-profit
organizations and technical experts. These collaborations add valuable
depth and perspective to our work. A prime example of this is the
Institute’s partnership with the Tulane/Xavier Center for
Bioenvironmental Research (CBR), which combines the Institute’s
strengths with CBR’s on such projects as the Institute’s How Safe, How
Soon project and CBR’s Urban Eco and RiverSphere programs.

Other notable collaboration partners over the past year include The
University of New Orleans, the University of Wisconsin (Madison), the
Coalition to Restore Coastal Louisiana, Environmental Defense Fund,
National Audubon Society, Women’s Environment and Development
Organization, The McKnight Foundation, The Henry M. Jackson
Foundation, the Lower 9th Ward Center for Sustainable Engagement &
Development, the Carrollton-Hollygrove Neighborhood Association, the
United Houma Nation, and the City of New Orleans.
These and other collaborations are central to many of the Institute’s
projects and programs, some of which are highlighted below.

STIMULATE CONVERSATION

“We recommend a focal point

for environmental policy in the
“Facing the Future: A Colloquium on White House. That is what we
the Role and Future of the White said in 1968…and it is still
House Council on Environmental true.”
Policy”
Russell Train, Chair,
In the fall of 2008, the Institute convened President’s Council on
Environmental Quality, 1970-
a colloquium of experts to discuss the role 1973
and structure of the White House Council
on Environmental Quality in today’s
world. The event, held at the Mt. Vernon Inn in Mt. Vernon, Virginia,
brought together eighteen experts, including former leaders and senior
staff of several federal and state environmental agencies (including
three former CEQ chairs), from multiple disciplines to consider these
issues. The Institute’s role as convener not only demonstrated our
ability to work with advocates at all levels, but also reflected our
reputation for confronting basic policy questions in ways that lead to
practical results. The published report that emerged out of the event
aimed to help the new administration maximize the potential of the
CEQ and its recommendations stressed the need to aggressively
confront climate change in ways that maximize economic opportunity
and environmental gain. The report was noted in the national press,
and circulated in the inner circle of the Obama transition team.

The Institute’s leadership role on national environmental policy has

been recognized by CEQ and others that continue to solicit Institute
input on water related issues.
 Professor Oliver Houck and Niel Lawrence,
Natural Resource Defense Council

Russell Train, Former CEQ Chairperson

Nichols Yost, Former CEQ General Counsel
 SUPPORT COMMUNITIES

“How Safe, How Soon?”

“How Safe, How Soon” is a collaborative effort of communities,

technical experts, and philanthropy focused on creating a safer and
more resilient Southern Louisiana. The program helps individual
communities such as the United Houma Nation in
Lafourche and Terrebonne Parishes, as well as citizens
in New Orleans’s Lower 9th Ward and
Carrollton/Hollygrove neighborhoods assess their
flooding risk and develop long-term visions for the
future as they face the consequences of climate
change and wetland loss.

The project has allowed each community to focus on

issues of emergency preparedness and return, long-
term community resilience, evacuation planning,
identification of places of return and recovery,
resilient housing, water related risk analysis and
fundraising. The communities continue to create new partnerships and
working relationships with other non-profits, government agencies and
communities, and begun establishing themselves as innovators and
leaders in the eyes of local, state, and federal authorities.

The role of the Institute is to provide guidance to community and local

governmental leaders about the laws, policies, and procedures that
govern water resource planning and programs so they can better
shape plans and decisions that affect their future. Specifically, the
Institute has been successful in helping to unite leaders from the three
communities, broadening their emergency preparedness plans and
coordinating strategic long-term plans for hurricane risk reduction.
Finally, the Institute and its partners have improved the ability of the
three communities to communicate their needs and views to local,
state, and federal governmental authorities, academia, and
philanthropy.

This project is a collaborative effort that includes the University of New

Orleans, the Coalition to Restore Coastal Louisiana, Environmental
Defense Fund, and community organizations. This project is ongoing
and allows the Institute to base water policies we propose in “on the
ground” experience.
PLAN FOR THEFunding has
CITY’S been provided by the Blue Moon
FUTURE
Fund and Environmental Defense Fund.

New Orleans City Master Plan

New Orleans is a city that has long celebrated its past more than it has
planned for its future. One of the most exciting and hopeful
developments in post-Katrina New Orleans is its commitment to
developing a true Master Plan that has the force of law to guide its
redevelopment and future growth. This plan is historic not only
because of its legal status but because it is firmly rooted in making the
City environmentally, culturally and economically sustainable. A
central feature of the plan is the City’s relationship to water—both as a
driver of risk and an asset.

Finally, the Institute has informed

"The Institute's ability to
planners about additional sustainability command credibility has made
challenges facing the comprehensive our work to prepare the
planning effort, including coastal Master Plan far more
wetland loss, rising seas, soil productive.”
subsidence, and climatic cycles, and David Dixon,
advised as to the levels of protection Principal-Planning & Urban
required to make New Orleans more Design,
resilient and vibrant. Goody, Clancy & Associates
 SHAPE STATE WATER POLICY

Trust for Coastal Stewardship

As part of the Institute’s continued mission to foster the development

of laws and policies that promote sustainable management of
Louisiana’s water resources, the Institute has continued to guide state
agencies and law makers on critical coastal land management issues.
Last year, the Institute began working with state regulators to develop
rules and regulations that would reconcile ownership of surface and
subsurface land in Louisiana’s coastal wetlands. These efforts have
made steady progress after overcoming substantial delays due to
procedural obstacles and transitions in both the Governor’s office and
Attorney General’s office. The Institute continues to participate in the
rulemaking process and is currently working with the Attorney
General’s office and the State to ensure that new regulatory language
meets the needs of the State’s coastal stewardship goals.

In addition to assisting in the drafting of rules concerning title to

Louisiana coastal wetlands, the Institute worked with coastal land
owners and land conservation organizations to encourage transfers of
private surface lands to public entities or charitable land trusts for
coastal conservation, restoration and protection. Specifically, the
Institute continued its work with the Trust for Coastal Stewardship, a
charitable land trust created to facilitate the State’s efforts to
conserve, restore, and protect its coastal waters and wetlands.

Oil, Water and Coastal Stewardship

The Institute has also served as a valuable information source for the
State, the legal community, and nongovernmental organizations as
they seek better ways of balancing oil and gas development with
environmental stewardship. For example, a February 2009 report for
the National Audubon Society authored by the Institute highlighted
critical legal measures for harmonizing oil and gas activity and coastal
land stewardship in coastal Louisiana. The report detailed the history of
Louisiana coastal land rights and the challenges facing environmental
stakeholders as the state’s traditional unified title rules are reworked to
support protection of surface coastal land.

Institute personnel also participated in the Mineral Law Institute at

CONSULT
Louisiana State WITH PHILANTHROPY
University, highlighting the basics of Louisiana water
law and emerging oil/gas and water issues.

Recovery in Context
A critical feature of the recovery from
Hurricanes Katrina and Rita, and now "The Institute provides
Gustav and Ike, is the high degree of expertise at the unique
national philanthropic interest in the intersection of deep local
region. Successful “recover knowledge and a broad
understanding of legal
philanthropy,” however, requires a deep
frameworks and policies.
understanding of the communities,
culture and geography of the region and Complimented by an array of
the laws and policies that define rights relationships, together these
and drive planning and programming. attributes enrich and
accelerate progress toward
The first phase of the Institute’s addressing complex, multi-
Recovery in Context project, initiated in faceted issues.”
2007, sought to develop this
understanding amongst philanthropic Gretchen Bonfert,
Program Director-Environment
organizations, primarily by educating on
legal issues that drive or constrain McKnight Foundation
wetland conservation and restoration as
well as better storm protection
measures.

The second phase of the Recovery in Context program, implemented

this past year, further developed the awareness of coastal restoration
issues and opportunities among Gulf Coast recovery funders. This
awareness consisted sharing of knowledge and understanding of the
technical, legal and political elements in coastal restoration efforts and
of sustainable coastal management. Dissemination of the Institute’s
knowledge on these elements culminated in presentations at the
Funders Forum on Sustainable Gulf Coast Transformation held in
Mobile, Alabama in November of 2008. The Institute was vital in
helping develop materials and ideas to support and shape the forum,
such as designing panels and conducting briefings. The efforts and
networking that emerged from the forum resulted in a letter to federal
policy makers drafted in part by the Institute and signed by twenty-
three philanthropic organizations. The success of this program would
not have been possible without the generous support of its principal
funder The McKnight Foundation
 Education & Outreach

Education is vital to the mission of the Institute and our commitment is

evident both on and beyond campus. It extends from the classroom to
newsrooms and from neighborhood meetings to national forums.

Engaging Students

Nothing is more fundamental to the Institute’s mission than providing

educational opportunities to students, a challenge we meet through
classroom teaching, encouraging student research, sponsoring student
community service work, and supporting student organizations such as
the Environmental Law Society.

In the class room

• 15 law students enrolled in the Water Resources Law and

Policy course taught by Institute Director Mark Davis
• Guest lecture and field visit by Ann Yoachim for 24
students enrolled in public health course Population
Environment Theory & Evidence
• Guest lecture by Mark Davis for freshmen enrolled in TIDES
course Environmental Literacy

Beyond the classroom

• Research Assistants (5 law students and 2 students from

the University of New Orleans Center for Hazard
Assessment, Response, and Technology)
• Directed Research (1 law student)
• Community Service (1 law student, 4 public health
students)
• Center for Public Service (1 undergraduate student)
• Supported Public Interest Law Foundation relief drive for
United Houma Nation
• Advisor and sponsor of Environmental Law Society’s Annual
 Summit on Environmental Law and Policy
•CAMPUS
Advisor & COMMUNITY
(Mark EDUCATIONMoot Court team
Davis) to Environment

Percy Viosca Jr. Distinguished Speaker Series. This Institute

speaker series features men and women who have played a pivotal
role in shaping Louisiana’s environmental future. These events are
open to the campus and broader community and are taped for
rebroadcast as a community service by Cox Cable. This year speakers
were Steve Stockton and Bill McKibben.

Steve Stockton, the Director of Civil Works

of the U.S. Army Corps of Engineers joined
the Institute for a presentation in December
2008. His presentation, “How Katrina
Changed the Corps and the Implications for
Those Living With Water” was timely and
informative for a community with so much
riding on the plans and programs
conducted by the Corps of Engineers.

Bill McKibben, a world renowned author and

climate change activist, spoke at the Law
School in April 2009. His address to a
standing-room only audience stressed the
urgency of prompt and effect action to reduce the level of
greenhouse gas emissions. Bill McKibben, Author

Restore America’s Estuaries National Conference. The Institute

co-sponsored the 4th Restore America’s Estuaries National Conference,
held in Providence, Rhode Island in October of 2008. The five day,
widely-attended event featured the latest advances in scientific
understanding of coasts and estuaries and best practices for all types
and scales of restoration. The conference is considered the premier
nationwide forum focused on advancing the science, pace, practice,
scale, and success of coastal and estuarine habitat restoration. As a
sponsor and participant, the Institute played a role in incorporating the
non-profit, government, scientific, business, tribal, and academic
sectors, and enabling networking and communication within the
estuarine habitat restoration movement.
 PUBLICATIONS, REPORTS, PAPERS, PRESENTATIONS

Publications

The following publications were written by the Institute’s Director.

• Davis, Mark “Effective Coordination and Cooperation Between

Ecological Risk Assessments and Natural Resource Damage
Assessments: A New Synthesis”, Society of Environmental
Toxicology and Chemistry Integrated Environmental Assessment
and Management, October 2009

• Davis, Mark “Preparing for Apportionment: Lessons from the

Catawba River”, Sea Grant Law and Policy Journal, June 2009

• Davis, Mark “To What End: Resilience, Tradeoffs, and the Lessons
of Katrina”, Universities Council on Water Resources Journal of
Contemporary Water Resources & Education, Volume 141, March
2009

• Davis, Mark “Not by Accident: Building a Sustainable New

Orleans”, The American Prospect, March 2009

• Davis, Mark “A Whole New Ballgame: Coastal Restoration, Storm

Protection, and the Legal Landscape After Katrina” Louisiana Law
Review, Issue 2, Volume 68, Winter 2008

Presentations

The following presentations were made by Mark Davis:

• April 2009 – Panel Moderator, “The River, Reimagined”, 14th

Annual Tulane Law School Summit on Environmental Law and
Policy (New Orleans, LA)

• April 2009 – Speaker, “Implications of Pending South Carolina v.

North Carolina Case for Mississippi Valley States”, Sea Grant Law
and Policy Journal 2009 Symposium, University of Mississippi
(Oxford, MS)

• March 2009 – Speaker, “Law, Policy and the Comprehensive

 Water Planning”, Society of American Military Engineers, New
Orleans Chapter luncheon (Metairie, LA)

• March 2009 – Speaker, “A Toe in the Water: A Primer on Louisiana

Riparian Law and Emerging Issues” Louisiana Mineral Law
Institute (Baton Rouge, LA)

• March 2009 – Speaker, “Making Coastal Restoration Work:

PRESENTATIONS
Agency Authorities and Obligations”, U.S. Army Corps of
Engineers Summit on River Diversions (New Orleans, LA)

• March 2009 – “Living With Water”, presentation to the Threshold

Foundation (New Orleans, LA)

• January 2009 – Speaker, “Living With Water: How Safe Are We?
How Safe Do We Want to Be?”, CPRA Flood Protection and
Ecosystem Restoration Conference (Baton Rouge, LA)

• November 2008 – Presenter, “Living With Water”, New Orleans

City Master Plan Citywide Public Meeting (New Orleans, LA)

• October 2008 – Panel Discussion Moderator, “Devil in the Details:

The Legal Landscape and Coastal Restoration”, Restore
America’s Estuaries National Conference (Providence, RI)

• October 2008 – Host, “Facing the Future: A Colloquium on the

Role and Future of the White House Council on Environmental
Policy” (Mt. Vernon, VA)

The following presentations and webinars were made by Ann Yoachim:

• July 2009 Poster “How Safe, How Soon: Building Resilience in

Three Communities in Southern Louisiana” Natural Hazards
Annual Workshop (Boulder, CO)

• June 2009 –Poster, “How Safe, How Soon”, American Association

of Flood Plain Managers (Orlando, FL)

• April 2009 – Speaker, “From Katrina to Copenhagen”, Gulf Coast

Fair Climate Summit (New Orleans, LA)

• April 2009 – Webinar Presenter, “Global Warming, Water Quality

and the Future of Water Resources In The Southeast”, Southern
Alliance for Clean Energy

• March 2009 – Speaker, “Defining Resilience: A Case Study of

 Three Communities in Southern Louisiana”, American Association
of Geographers Annual Conference (Las Vegas, NV)

• October 2008 – Speaker, “Half Full, Half Empty”, New Orleans

Speaks (New Orleans, LA)

• October 2008 – Speaker, “Making Policy, Making History”,

Restore America’s Estuaries National Conference (Providence, RI)

• October 2008 – Host, “Facing the Future: A Colloquium on the

Role and Future of the White House Council on Environmental
Policy” (Mt. Vernon, VA)
PUBLICITY

Publicity

The Institute remains an influential source for source for journalists,

filmmakers, writers, and commentators seeking background and
insights on water related matters.

• Television and Radio: The Institute has been featured on NPR,

EarthBeat, Cox Cable, and local television and radio news
programs in connection with a variety of water related issues.

• Film: Institute Director featured in the documentary “America

Betrayed”

• Print: National/Regional/Local. The Institute has been quoted on

water resource matters in the following publications:

 USA Today (July, Oct 2008)

 Time (Sep 2008)
 Chicago Tribune (Sep 2008)
 The Times-Picayune (July, Sep, Nov 2008; March 5 &
21 2009)
 The Christian Science Monitor (April 2009)
 New Orleans CityBusiness (April 2009)
 Gambit Weekly (Sep, Nov 2008)
 The American Prospect (March 2009)
 Daily Reveille (January 2009)
 FUNDING

The Institute thanks the following funders for financial support in 2008-
2009.

Henry Jackson Foundation

The RosaMary Foundation
Booth Bricker Fund
Goody Clancy
Blue Moon Fund
Tulane/Xavier Center for Bioenvironmental Research
National Audubon Society
Lake Pontchartrain Basin Foundation
Rocky Mountain Mineral Law Foundation
Anonymous Individual Donors
Tulane Institute on Water Resources Law
& Policy
6329 Freret St.
New Orleans, LA 70118
Phone: 504.865.5980/504.862-5982
Fax: 504.862.8844
Website: www.law.tulane.edu/water