ARTHUR A. LEMANN III & ASSOCIATES, INC.
ATTORNEYS AT LAW
838 LAFAYETTE STREET, SUITE 100
NEW ORLEANS, LOUISIANA 70113
TELEPHONE (504) 822-8104
FACSIMILE (504) 828-4231
March 26, 1998
Return Receipt Requested
Col. Frank Ellis
Division Inspector General
U.S. Army Corps of Engineers
7701 Telegraph Rd.
Alexandria VA 22315-3863
Lt. Gen. Joe Ballard
20 Massachusetts Ave., N.W.
Washington, D.C. 20314
Re: Permit Application, of the Tammany Holding Corporation to develop approximately one thousand acres of land on the east side of I-10 across from Eden Isles in Secs. 2, 3, 4, and 11 TIOS-Rl4E- at Lat. 30 deg 13'00" N, Long. 89 deg 45'58" W COE Number EM-19-980-1347.
Please be advised that I represent Save Our Wetlands, Inc. (SOWL) regarding the captioned matter. I have enclosed a copy of SOWL's fact sheet for your records.
Tammany Holding Corp. is seeking permits from the Corps, the Louisiana Department of Natural Resources, and the Louisiana Department of Environmental Quality to develop Oak Harbor Subdivision. For the following reasons, I request that you order a full internal investigation into tile Corps' involvement with the development of this Area. I further request that you order the New Orleans District to suspend its decision on the permit Application until the investigation his concluded.
Prior to 1927, the Eden Isles area was under water and subject to the ebb and flow of the tide. It thus was property of the State of Louisiana and was inalienable under the Louisiana Constitution of 1921. St. Tammany Parish and the Levee District No. 2, without the approval of the Congress of the United States required by Section 9 of the Rivers and Harbors Act of 1999 (hereinafter "the RHA"), constructed a levee seaward of the shore of Lake Pontchartrain and commenced to pump the area dry. This work was also performed without the benefit of a Corps of Engineers permit under Section 10 of the RHA.
As a result of the Depression of the 1930's, Drainage District No. 2 became inoperative as the landowners were unable to pay the taxes to operate the drainage district. The levees then fell into disrepair, and a major portion of the, area of the proposed project was reestablished as a part of the bed of Lake Pontchartrain. Thus the ownership of these portions remained vested in Louisiana and, as water bottoms of the State, were inalienable under the Constitution of 1921.
Drainage District No. 2 was reactivated during the early 1960's. In 1964, without the benefit of an Act of Congress as required by Section 9 of the RHA and without the benefit of it permit as required by Section 10 of the Act, the District diked off a large portion of bed of Lake Pontchartrain. Even though there was no Congressional authorization or permits under the Act for the levees of Eden Isles the Corps in 1965 used the taxpayer's money to repair and maintain these illegal levees.
Leisure, Inc., acquired what wits then known Eden Isles East and West in January 1969. On December 27, 1971, and January 17, 1972, the United States Fish And Wildlife Service operation "FWS") contacted the Corps, and notified them of an apparent illegal dredge and fill operation in the Eden Isles area. (Exhibit A). On August 9, 1972, the FWS again contacted the Corps to question the Corps ' failure to act on all prior correspondence from the FWS. (Exhibit B). In spite of being notified of the illegal activities in the Eden Isles area in December of 1971, the Corps refused to issue a cease and desist order until January 18, 1973.
The Corps proceeded to circulate public notice for an application for a Department of the Army permit to construct an entrance channel from Lake Pontchartrain and a boat basin. The public was not informed that extensive canal construction had already taken place and had proceeded without permits under the RHA and the Water Pollution Control Act. Before the issuance of the March 9, 1973, permit, there were no public hearings.
On January 18, 1973, the FWS wrote, to the Corps and other government agencies stating that the type of canals proposed for Eden Isles had a deleterious effect on fish and wildlife habitats. (Exhibit C), The Corps had received a letter from the EPA dated March 22, 1972, which indicated that the Eden Isles canals would invariably result in anaerobic and septic conditions, and accordingly recommended an environmental impact statement. (Exhibit D). However, the Match 9, 1973, permit from the Corps to Leisure, Inc., covered only the entrance channel of the western portion of Eden Isles and did not include the interior canal system. This emission was objected to by the FWS. EIS was not completed. After the permit was issued, there is no evidence to indicate that the public was made aware that such a permit had in fact been issued.
A Corps interoffice memo of Captain James Paul King dated August 10, 1973, indicates that an environmental impact statement should have been required. (Exhibit E). Phillip Morgan, Regional Director of the, U.S. Department of the Interior, wrote to the Corps on September 27, 1973, indicating that his position was in direct opposition to the permit Issued by the Corps to Leisure, Inc. (Exhibit F). Mr.. Morgan pointed out that the permit was issued in violation of General Noble's directive in the interpretation of the U.S.C. 403 by the General Counsel of the Department of the Army in that the permit did not include the interior canal system.
Additionally, the March 19, 1973, permit did not include Eden Isles East. Nevertheless, the St. Tammany Police Jury" and Leisure, Inc., proceeded to illegally dike and drain this area in violation of the RHA and other statutes. On March 1, 1974, the Sierra Club was forced to file a notice of its intent to sue because of work being performed beyond the authority granted by the Corps.
Joe Burgess, the chief biologist of the FWS, Louisiana Division, succinctly memorialized the Corps' involvement with Eden Isles in his letter of January 17, 1975, to Richard Troy, an Assistant State Attorney General. (Exhibit G). Mr. Burgess explained:
…first of all a dike was constructed along what is now considered to be the shore of Lake Pontchartrain. This work would have required the consent of Congress (33 U. S. C. A. 401) and the Secretary of the Army but neither was obtained (see letter from Cols. Hunt And Heiberg attached). The area behind the dike, according to the State Land Office, was described in the survey notes of the government surveys as 'sea marsh.' This indicates that the area was covered by water, and as such was navigable waters of the U. S. Digging material from these waters to construct a dike was an apparent violation of 33 U.S.C.A. 403, and placing of these soils in navigable waters of the U.S. was an apparent violation of 33 U.S.C.A. 407. The foregoing is believable because it happened in the 1920's.
Now comes the unbelievable part. The Corps proceeded to circulate a public notice for an application for a DOA permit to construct an entrance channel from Lake Pontchartrain, and a boat basin. This public notice did not inform the public that a series of canals would be also constructed and that extensive canal construction had already taken place. But the really unbelievable part of all that has transpired is that everyone has ignored 33 U.S.C.A. 411. This section of the Rivers and Harbors Act of 1899 states in very clear language that the only source of discretionary power to deal with an apparent violation of Section 407. It spells out clearly That, Every person and every corporation that shall violate, or that shall knowingly aid, abet, authorize, or instigate a violation of the provisions of 407.... of this title shall be guilty of a misdemeanor.... "'
It is thus apparent that the Corps' history with the development of this land possibly involves bad faith, dereliction of duty, and, at worst, criminal misconduct. This area has been targeted by the Lake Pontchartrain Basin Management Plan and the Coastal Wetlands Restoration, Planning, and Protection Act Task Force as having high value for restoration, within the Pontchartrain Basin. The public deserves assurance that the Corps will honor its obligations to either permit or deny this application in good faith and in full compliance with all applicable laws. Although I realize that the events outlined above transpired many years ago. I must further request that, in conjunction with your investigation, any Corps member involved with any Eden Isles/Oak Harbor project in the past be recused from any decision-making on the proposed project.
Please advise me of your position on our requests.
Thank you for your time and attention to this matter.
Very Truly Yours,
Arthur A. Lemann IV
cc: Mr. Barry Kohl
Corps of Engineers, Mr. Roger Swindler
Tulane Environmental Law Clinic
Dept of Environmental Quality, Mr. James Little
Dept of Natural Resources, Ms. Sharon Ketchen
Save Our Wetlands, Inc.