A group of coastal Mississippi cities has filed a lawsuit against the U.S. Army Corps of Engineers for its alleged failure to protect bottlenose dolphins and other marine life when it released river waters into the Gulf of Mexico as a means of flood control.
“While virtually all marine life in the Sound was affected, this complaint is necessitated by the shocking impacts of the 2019 Bonnet Carré Spillway operations on the resident bottlenose dolphin population in the Mississippi Sound and Lake Borgne,” the lawsuit states.
The lawsuit said that the bottlenose dolphin, known for its “intelligence, curiosity, and sometimes playful nature,” is a significant component of the Gulf of Mexico.
“Scientists have also referred to the bottlenose dolphin, due to its role as a long-lived apex predator, as a sentinel of the health of the marine ecosystem,” he said.
In 2019, the Corps opened the Bonnet Carré Spillway—a flood control structure in St. Charles, Louisiana, into the Mississippi Sound and Lake Borgne. It set in motion consequences “that went far beyond a simple disruption of behavioral patterns.”
“The bottlenose dolphin evolved in an environment with clean, saline water like that found in the Gulf of Mexico and the Mississippi Sound,” the lawsuit states. “The massive volumes of polluted fresh water diverted through the Bonnet Carré Spillway and into the Mississippi Sound caused direct and indirect mortality of resident bottlenose dolphins.”
The lawsuit alleges that the Corps of Engineers failed to obtain incidental take permits under the Marine Mammal Protection Act, which requires that agencies obtain a take permit from the U.S. Department of Commerce before engaging in activity that will result in the disturbing of marine life.
‘Demonstrable Incorrect’
Among the plaintiffs in the lawsuit are the cities of Biloxi, Pass Christian, and D’Iberville, Mississippi; Harrison County, Mississippi; and the Mississippi Commercial Fisheries United, Inc.“For citizens of Biloxi and visitors alike, the ability to experience the bottlenose dolphin in its habitat in the Sound is a source of cultural, spiritual, and economic well-being,” the lawsuit states. “The loss of this important aspect of the City’s cultural heritage and connection to the water is immeasurable.”
The Corps constructed the spillway on the east bank upstream from New Orleans in the 1930s to control flooding in the Mississippi River, according to the complaint, by diverting waters into Lake Pontchartrain.
“This polluted fresh water then flows through the passes known as the Rigolets at the southern end of Lake Pontchartrain, through Lake Borgne, and ultimately into the Mississippi Sound,” the lawsuit states.
The Corps believes that the release of water through the spillway is similar to historical examples of natural river flooding, which the lawsuit calls “demonstrably incorrect” because the river is “drastically modified from its historical condition and is substantially controlled by the Corps itself.”
“The construction of levees and isolation of the river from its natural floodplain have drastically changed the flow regime in the river and drastically changed the historic behavior of the river,” the lawsuit states. “In addition, the river water released through the Bonnet Carré Spillway in recent decades contains high levels of pollutants which were not present before the construction of the present river control system.”
Spillway’s 2019 Opening
The spillway was opened from February to April 2019, then later from May to July 2019 “for a total of over 120 days,” marking the longest time it was opened since its completion in 1932.In 2019, it discharged up to 10.5 trillion cubic feet of the river into Mississippi Sound, the lawsuit states.
“As a consequence of this massive discharge, salinities in Mississippi coastal waters plummeted,” the lawsuit states. “Salinities were near zero in many areas, rather than the more saline water usually found in the summer months.”
Case law has shown that the release of spillway waters is a challenge to the well-being of the Sound’s ecosystem that can cause “disruptions to oysters, sea turtles, and shrimp,” as well as cause “toxic algae blooms, seafood warnings, and beach closures.”
The lawsuit states that high levels of “nutrient pollution” from agricultural sources, which include nitrate and phosphorus concentrations, contributed to the bloom of a toxic blue-green algae that has made people sick and killed marine life.
The low salinity has caused skin lesions, infections, and death in the bottlenose dolphins.
The lawsuit cites the highest number of dolphin strandings in the Mississippi Sound stands at 147 in 2011, the year after the 2010 BP oil spill, and 166 in 2019, when the Bonnet Carré Spillway was opened.
The National Oceanic and Atmospheric Administration declared the 2011 and 2019 strandings an “unusual mortality event,” which the Marine Mammal Protection Act defines as “a stranding that is unexpected; involves a significant die-off of any marine mammal population; and demands immediate response.”
“The extended low salinity caused by Mississippi River water discharged through the Bonnet Carré Spillway, with some contribution from higher flows from coastal rivers, was identified by the National Oceanic and Atmospheric Administration as the leading hypothesis for the 2019 Unusual Mortality Event in the Mississippi Sound,” the lawsuit states.
Mississippi Sound Coalition
According to NOLA.com, the local governments are a part of the Mississippi Sound Coalition, managed by Gerald Blessey, the former mayor of Biloxi.“The Mississippi Sound, our way of life, really, and our whole economy are in grave danger,” Mr. Blessey said. “The Bonnet Carreé Spillway is killing our dolphins and other marine life. Scientists have referred to the bottlenose dolphin as a sentinel of the health of the whole marine ecosystem. So the dolphins are telling us something. We must listen to the dolphins.”
The suit requests that the court make the Corps follow the Marine Mammal Protection Act’s requirements, which include the request of take permits.
An attorney representing the Coalition said the Corps needs to find other ways of managing flooding that doesn’t harm marine life.
“Go back, if you’re an agency like the Corps, and figure out if there are ways you can keep from doing that,” he said. “Are there things you can do differently, like operate Bonnet Carre Spillway differently?”
