David Peterson, Attorney General`s Office

Report
CPRA Constitutional and
Statutory Authority Overview
January 18, 2011 CPRA Meeting
David Peterson
Asst. Attorney General and AG Designee to CPRA
Civil Division
Lands and Natural Resources Section
Louisiana Department of Justice / Attorney General
restoring and protecting Louisiana’s coast
Governing Constitutional and
Statutory Provisions
• La. Const. Art. IX, Section 1 – Public Trust Doctrine
• La. Revised Statutes – Title 49
– La. R.S. 49:214.1, et seq.
– La. R.S. 49:214.5.2
Public Trust Doctrine
• La. Const. Art. IX, Section 1 - “The natural resources of the state,
including air and water, and the healthful, scenic, historic, and esthetic quality
of the environment shall be protected, conserved, and replenished insofar as
possible and consistent with the health, safety, and welfare of the people. The
legislature shall enact laws to implement this policy.”
– Natural resources must be protected, conserved, and replenished
– Must be weighed against health, safety, and welfare of citizens
– Legislature in charge of passing laws to carry out mandate
• Mandate as to particular natural resources divided among state agencies who should
collaborate in assuring the overall constitutional public trust doctrine is carried out in
accord with the particular delegation to each agency, i.e. LDWF, fisheries; LDEQ, general
environmental protection / hazardous and other waste; CPRA, integrated coastal
protection; and DNR, water and mineral resources.
•
Save Ourselves, Inc. v. La. Environmental Control Comm., 452 So. 2d
1152 (La. 1984)
– La. Supreme Court defined public trust doctrine as “rule of reasonableness”
requiring all governmental agencies to determine adverse environmental impacts of
their actions have been minimized or avoided as much as possible consistently with
the public welfare.
– Constitution does not establish environmental protection as exclusive goal but
requires balancing of environmental costs and benefits against economic, social and
other factors.
Public Trust Mandate to CPRA
• La. R.S. 49:214.1, et seq.
– Mandates a signal agency, CPRA, to articulate a clear statement of
priorities and to focus development and implementation of efforts to
achieve comprehensive “integrated coastal protection” through the state
comprehensive master coastal protection plan and annual plan.
• La. R.S. 49:214.1 – Purpose and Intent – Original Act 8 language
• Legislative delegation of authority to CPRA over “public trust”
doctrine as to “integrated coastal protection”
• Intended to achieve comprehensive integrated coastal protection and
proper balance between development and conservation, restoration,
creation, and nourishment of renewable coastal resources.
– Legislature placed responsibility for the direction and development of the
master plan with CPRA in an effort to maximize the effectiveness of
integrated coastal protection efforts.
– CPRA mandated to used an integrated effort to jointly coordinate master
plan and annual plan development with OCPR, state agencies, political
subdivisions, including flood protection authorities and levee districts, and
federal agencies.
CPRA Statutory Authority
• Master Plan and Annual Plan Development - La. R.S. 49:214.5.3
– Develop plans for integrated coastal protection for protection, conserving,
enhancing, and restoring coastal area through construction and management.
– Per public trust doctrine, should consider balance between development and
integrated coastal protection plans and programs.
• Public use benefits
• Private benefits
• Social, geographic, economic, engineering, and biological considerations
• Single State Entity – La. R.S. 49:214.1(F)
– Established, authorized, and empowered to carry out any and all functions necessary
to serve as the single entity responsible to act as the local sponsor for all hurricane,
storm damage reduction and flood control projects in areas under its jurisdiction,
including the greater N.O. area and S.E. Louisiana area.
– Federal statutory requirement to obtain post-Katrina federal funding for New
Orleans area hurricane protection projects.
CPRA Statutory Authority – Cont.
• Oversight - La. R.S. 49:214.5.2(A)(1)
– The authority shall “[r]epresent the state’s position in policy relative to the
protection, conservation, enhancement, and restoration of the coastal area of the
state through oversight of integrated coastal protection projects and programs and by
addressing activities which require a coastal use permit which could significantly
affect integrated coastal protection projects and programs, all consistent with the
legislative intent as expressed in R.S. 49:214.1
• Enforcement – La. R.S. 49:214.5.2(A)(6)
–
The authority shall “take actions against any entity, including political
subdivisions, to enforce compliance with the comprehensive master coastal
protection plan,” which actions “may include but are not limited to determinations
of noncompliance; appeal from such determinations; the taking of administrative
action, including the withholding of funds; and civil action, including the seeking of
injunctive relief, or any other remedy necessary to ensure compliance with the
plan.”
CPRA Statutory Jurisdiction
• Geographic Jurisdiction – La. R.S. 49:214.2(3)
– coastal area – “the Louisiana Coastal Zone and contiguous areas subject to
storm or tidal surge and the area comprising the Louisiana Coastal Ecosystem as
defined in Section 7001 of 110 Public Law 114 (WRDA 2007)
• Section 7001 of WRDA 2007 - Louisiana Coastal Ecosystem is defined as “the
coastal area of Louisiana from the Sabine River on the west to the Pearl
River on the east, including those parts of the Atchafalaya River Basin and
the Mississippi River Deltaic Plain below the Old River Control Structure and
the Chenier Plain included within the study area of the restoration plan.”
• Subject Matter Juridiction – La. R.S. 49:214.2(10)
– integrated coastal protection - “plans, projects, policies, and programs
intended to provide hurricane protection or coastal conservation or restoration,
and shall include but not be limited to coastal restoration; coastal protection;
infrastructure; storm damage reduction; flood control; water resources
development; erosion control measures; marsh management; diversions;
saltwater intrusion prevention; wetlands and central wetlands conservation,
enhancement, and restoration; barrier island and shoreline stabilization and
preservation; coastal passes stabilization and restoration; mitigation; storm surge
reduction; or beneficial use projects.”
Governor’s Executive Assistant for Coastal
Activities - Authority
• La. R.S. 49:214.3.1
• Functions and responsibilities include:
– Chairman of CPRA
– Coordinate and focus the functions of all state agencies as they related to
integrated coastal protection, including infrastructure, hurricane protection,
wetlands conservation and restoration, mitigation projects, and water
resource development projects to establish and present the official state
position consistent with CPRA policy.
– Review and modify policies, procedures, or programs that may affect
integrated coastal protection projects.
QUESTIONS
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Contact:
David Peterson
Phone: 225-326-6000
Email: [email protected]

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