Tulane Environmental Law Clinic

January 31, 2017

By Email to: james.little@usace.army.mil
James W. Little, Jr.
Project Manager, Regulatory Branch
U.S. Army Corps of Engineers
New Orleans District
7400 Leake Avenue
New Orleans, LA 70118-3651
Re:

By email to: elizabeth.hill@la.gov
Elizabeth Hill
Project Manager
Louisiana Dept. of Environmental Quality
Attn: Water Quality Certifications
P.O. Box 4313
Baton Rouge, LA 70821-4313

Comments on Proposed Bayou Bridge Pipeline,
MVN-2015-02295-WII, WQC 160921-03

The Gulf Restoration Network, Atchafalaya Basinkeeper, Sierra Club Delta Chapter,
Louisiana Bucket Brigade, Bold Louisiana, and the Louisiana Crawfish Producers’ Association West (collectively “Citizen Groups”), represented by the Tulane Environmental Law Clinic,
offer these comments on the Section 404 permit and water quality certification applications by
Bayou Bridge, LLC (“Bayou Bridge”) to the U.S. Army Corps of Engineers, New Orleans
District (“Corps”) and Louisiana Department of Environmental Quality. Attached are additional
petitions signed by members of the public and Citizen Groups in opposition to the Bayou Bridge
pipeline. Exhibit A.
Due to the significance of the impacts of this project, particularly on the Atchafalaya
Basin, and the inadequacy and illegality of the Corps’ mitigation method and Bayou Bridge’s
mitigation proposal, the Corps may not proceed with this application until it conducts an
Environmental Impact Statement (EIS).
I. The Corps Provided Insufficient Notice to Allow Meaningful Comment.
As a matter of federal law, the Corps must provide the public with notice that provides
“sufficient information to give a clear understanding of the nature and magnitude of the activity
to generate meaningful comment.” 33 C.F.R. § 325.3(a)(5); Ohio Valley Envtl. Coal. v. U.S.
Army Corps of Engineers, 674 F. Supp. 2d 783, 802 (S.D.W. Va. 2009) (reversing where “the
Corps unreasonably found the applications were complete and issued public notices that plainly
did not contain sufficient information to allow for meaningful public comment.”). This
requirement derives from the Clean Water Act itself, which requires in section 404 that the Corps
issue Section 404 permits only “after notice and opportunity for public hearing . . . .” 33 U.S.C. §
1344(a), Clean Water Act section 404(a).
Tulane Environmental Law Clinic
6329 Freret St., Ste. 130, New Orleans, LA 70118-6231 tel 504.865.5789 fax 504.862.8721 www.tulane.edu/~telc

Page 2 of 9
The Corps provided a public hearing on the Bayou Bridge application, but the
information in the Corps’ notice was grossly insufficient “to generate meaningful comment.” In
the context of rulemaking under the Administrative Procedure Act (APA), the D.C. Circuit has
recognized that notice which “fails to provide an accurate picture of the reasoning that has led
the agency to the proposed rule” deprives the public of an opportunity to comment meaningfully.
Connecticut Light & Power Co. v. Nuclear Regulatory Comm'n, 673 F.2d 525, 530 (D.C.
Cir.1982). This means that “the most critical factual material that is used to support the agency's
position on review must have been made public in the proceeding and exposed to refutation.” Air
Transp. Ass'n of Am. v. FAA, 169 F.3d 1, 7 (D.C. Cir. 1999).
The National Environmental Policy Act (NEPA), which applies in this matter, likewise
stresses the necessity of informed public participation in the permit process: “NEPA procedures
must insure that environmental information is available to public officials and citizens before
decisions are made and before actions are taken. The information must be of high quality.
Accurate scientific analysis, expert agency comments, and public scrutiny are essential to
implementing NEPA.” 40 C.F.R. § 1500.1(b) (emphasis added). Thus, agencies analyzing
projects should “give the public enough information to be able to participate intelligently in the
EIS process.” State of Cal. v. Block, 690 F.2d 753, 772 (9th Cir. 1982).
Other than the bare bones information in the public notice itself and the attached maps
showing the pipeline pathway, the Corps provided no information in connection with the public
notice. The Corps did not provide Bayou Bridge’s application, did not provide Bayou Bridge’s
required demonstration that no practicable alternative to the destruction of wetlands is available,
did not provide any information on mitigation, and did not provide information on the potential
and real adverse environmental impacts of the project.
A. Bayou Bridge’s Public Hearing Presentation
Did Not Remedy the Inadequate Notice.
Nor did the information Bayou Bridge provided in its presentation at the January 12,
2017, public hearing suffice as notice which allows the public to meaningfully comment. At the
public hearing, Bayou Bridge delivered a short presentation of Power Point slides, but these were
broad statements of mostly unsupported assertions. Therefore, they did not provide the public a
meaningful opportunity to comment on key aspects of the law and of the project. With respect to
alternatives, Bayou Bridge merely represented, without support, that pipelines were safer than
rail or truck transport of oil and that this route was better than others through the Atchafalaya
Basin because it uses an existing right of way. It did not produce any evidence to meet its burden
to show no non-wetland alternatives existed for its project. In other words, it did not support why
the pipeline has to go through the Atchafalaya Basin (or any other wetland) in the first place.
Likewise, it provided no explanation of what it meant by “safer.” And it provided zero
information on mitigation; it merely stated that it would use a mitigation bank.
In sum, without this information for the public to review, rebut, and comment on, the
Corps has failed to provide sufficient information to generate meaningful comment. The Corps
must provide a new public notice and comment period once it obtains all of this information
from Bayou Bridge to allow the public to comment.

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B. Information Posted by the DNR On Its Website Late In the Corps
Comment Period Does Not Suffice to Generate Meaningful Comment.
Again, the Corps and the applicant have provided little to no information on key aspects
of the Bayou Bridge application for a Corps permit. In the past few days, some members of the
public became aware that Bayou Bridge recently amended its application to the Louisiana
Department of Natural Resources, Office of Coastal Management (DNR). Included in these
recent amendments was some information on Bayou Bridge’s proposed mitigation plan.
This late update – of which no notice was provided – does not suffice to cure the
inadequacy of the Corps’ public notice. Citizens who happened to learn of this information had
less than a week to evaluate it and submit comments on it. The complexity of the information
Bayou Bridge provided in this supplemental application renders the few days’ notice even more
inadequate. Additionally, despite including an LRAM application, the material still does not say
where Bayou Bridge’s mitigation will be, which is an essential aspect to allowing for meaningful
comment. Further, because Bayou Bridge substantially amended its application, which was also
designated as a Corps application, it requires a new Corps and DEQ public notice.
II. The Corps Must Conduct an Environmental Impact Statement on
Bayou Bridge’s Application Before Deciding Whether to Grant a Permit.
The National Environmental Policy Act’s central requirement is that federal agencies
must, except in certain limited situations, complete a detailed environmental impact statement for
any major federal action significantly affecting the quality of the human environment. 42 U.S.C.
§ 4332(2). The regulations implementing NEPA (“CEQ Regulations”) define major federal
actions as “actions with effects that may be major and which are potentially subject to Federal
control and responsibility.” 40 C.F.R. § 1508.18. The Corps’ permitting of Bayou Bridge is
indisputably a major federal action.
A. The Project Will Have Significant Impacts.
A 162-mile-long pipeline which crosses the largest contiguous wetland area in the
country, permanently destroys nearly 160 acres of prime forested wetlands, and further
negatively impacts over 450 acres for an unspecified “temporary” time has significant impacts.
The wetlands of the Atchafalaya Basin contain the largest contiguous bottomland hardwood
forest in North America. Further, the Basin supports half of America’s migratory waterfowl,
more than 300 bird species, and provides the most important habitat for neo-tropical migratory
land birds and other birds of the Mississippi Flyway. About 100 species of fish, crawfish, shrimp
and crabs support sport and commercial fishing, and feed birds, reptiles and mammals. Other
animals that call the Atchafalaya home are the Louisiana black bear, white tail deer, bobcat,
coyote, alligator, beaver, nutria, mink, otter, musk rat, armadillo, fox and opossum. The Basin’s
885,000 acres of forested wetlands make it the largest river swamp in North America. The
Atchafalaya is also considered the most productive swamp in the world and is probably the most
productive land in the Northern Hemisphere. See Atchafalaya Basinkeeper homepage, available
at: http://basinkeeper.org/.

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Under NEPA, the Corps must consider secondary and indirect impacts of the project. 40
C.F.R. § 1508.8. The significance of the impacts of this project increases greatly when its
indirect and secondary impacts are taken into consideration. The largest and most significant
secondary impact of this project is the spoil banks which Bayou Bridge will create in the
construction and placement of its pipeline, which will lead to indirect impacts to wetlands far
beyond the direct impacts of the project.
A quick survey of the Atchafalaya River Basin reveals thousands of abandoned wells and
scattered makeshift levees, also known as spoil banks that have accumulated over decades of
development. See, e.g., Exhibits B and C. Despite the fact that spoil banks must be cleaned up
after a project is completed, there has been no accountability toward actually completing that
requirement. Spoil banks interfere with the natural flow of water through wetlands and
negatively impact wildlife habitats. Normal sheet flow through wetlands is inhibited by the spoil
banks that line a canal and by road embankments. Spoil banks and embankments also increase
water stagnation. Channels often connect low-salinity areas to high-salinity areas, resulting in
saltwater intrusion upstream, and causing species change and increasing mortality of saltintolerant vegetation.
Secondary impacts of the project also include the 75-foot buffer that will exist along the
right of way, permanently destroying approximately 942 acres of wetlands, the vast majority of
which are forested wetlands. The Corps did not even include this 900+ acre impact in its public
notice.
Further, the Corps must consider cumulative impacts under NEPA. Here, the Corps must
consider the loss of wetlands this project will cause as well as any other indirect impacts in light
of the effects of all the other pipelines and projects the Corps has permitted in this sensitive
ecosystem. In particular, the Corps must consider the addition of yet another spoil bank to a
Basin with numerous out-of-compliance spoil banks, and it must consider the fact that the Bayou
Bridge pipeline will go in an area that already has an out-of-compliance spoil bank.
B. Permit Conditions Will Not Reduce the Impacts of the Project to Insignificance
Because the Corps New Orleans District Does Not Enforce Permit Conditions.
If the Corps grants this permit, it will likely include permit conditions which it may then
rely on to support a Finding of No Significant Impact (FONSI) under NEPA. However, the
Corps must consider the fact that it simply does not enforce Clean Water Act Section 404 permit
conditions because it does not have the resources to do so. To our knowledge, the New Orleans
District of the Corps has little to no enforcement resources, at least with respect to its Section
404 duties. For enforcement of conditions in permits allowing activity in the Atchafalaya Basin,
the situation is even more exacerbated because the Regulatory division of the Corps, within
which the enforcement division (such as it is) exists, does not have a single boat that it can use to
investigate violations of permit conditions in the Basin. While other divisions of the Corps and
other agencies with duties in the Basin may have boats, the Corps has explained that borrowing a
boat even from another division within the Corps involves a lot of red tape. As a result, it is
almost never done. Without a boat, enforcement in most of the Basin for much of the year is

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impossible. Regardless of the reason, the fact remains that the Corps simply does not enforce the
vast majority of permit conditions.
The spoil banks which traverse the Basin stand as one prime example of what happens
when the Corps does not enforce permit conditions. These spoil banks are the result of prior
pipeline permitting where the permittee did not restore the area to its original condition after
completing the project. Had the Corps enforced the conditions in those permits which require
such restoration (which are standard in most permits), the Basin would not be filled with these
illegal spoilbanks which block the natural flow of water and increase siltation.
The Corps must factor in its long-standing failure to enforce Section 404 permit
conditions and its inability to do so because of resource constraints when it assesses the
significance of the impacts of this project and the efficacy of permit conditions to reduce those
impacts to minimal. In fact, the Corps’ failure and inability to enforce permit conditions and
other Clean Water Act violations can only be thoroughly assessed in an EIS, and stands as an
independent reason why the Corps must complete an EIS for this application.
C. The Corps Must Consider the Feasibility and Effectiveness of Mitigation.
When deciding whether mitigation will compensate for any adverse environmental
impacts of the project which, unmitigated, would be significant, the Corps must assess the
feasibility of success of the mitigation, the extent to which the mitigation will compensate for the
particular values lost, and the connection between the particular mitigation which is implemented
and the lost values. For the Corps to effectively do this, it must conduct an audit of the mitigation
measures it has imposed to date, particularly those which purport to compensate for lost
Atchafalaya Basin values. Without such an analysis, any conclusion the Corps draws about likely
success of Bayou Bridge’s proposed mitigation will be arbitrary and capricious.
Nor can the existence of the Corps’ Louisiana Rapid Assessments Method (LRAM) for
determining mitigation serve as a substitute for the required analysis of whether mitigation will
successfully compensate for the Bayou Bridge impacts and how it will do so. The Corps cannot
rely on the LRAM because the Corps never promulgated it as a final decision and never analyzed
its effectiveness and its impacts.
D. The LRAM is Illegal, and any Corps Reliance On
It in Granting This Permit Renders the Permit Illegal.
The Corps’ use of the LRAM is illegal. The Corps first introduced the LRAM when it
published it for comment on October 12, 2015. Exhibit D. Many of the Citizen Groups
represented here also commented on the LRAM, critiquing many of its aspects. Exhibit E. On
February 29, 2016, the Corps issued a press release announcing that it had begun using the
LRAM, without assessing its impacts. The Corps stated: “The Corps will evaluate the method
during a one year interim assessment period. Following the interim period, the Corps will
evaluate comments received from users of the method for potential improvements to the LRAM
process.” Exhibit F. Likewise, the Corps did not issue a decision document, an analysis, or a
response to comments before or after beginning to use the LRAM. The Corps did not promulgate

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the LRAM. The Corps’ failure to conduct any analysis of the LRAM on the record or respond to
comments before using the LRAM violates the National Environmental Policy Act, and renders
the LRAM arbitrary and capricious and in violation of the Clean Water Act and the
Administrative Procedure Act. Further, additional illegalities of the LRAM, noted in the
comments submitted, render any Corps reliance on it illegal.
Not only did the Corps not publish or promulgate any analysis of the LRAM, but all
indications are that it did not conduct an analysis of its effectiveness or its compliance with the
Clean Water Act and the “no net loss of wetlands” goal. Further, the Corps refuses to provide
any information regarding its procedures in implementing the LRAM. Undersigned counsel
emailed the Corps on May 25, 2016, and again on June 29, 2016, on behalf of several groups to
ask whether the Corps issued any decision document or response to comments when it decided to
start using the LRAM in February 2016. Exhibit G. The Corps did not respond to the emails,
even to acknowledge receipt. On December 7, 2016, the undersigned submitted a Freedom of
Information Act request to the Corps asking for information on the decision to begin using the
LRAM and, like before, received no response. Exhibit H. Despite the expiration of the FOIA
deadline for response, the Corps has yet to respond to the FOIA request or even acknowledge it.
Further, because of the absence of any Corps explanation of how the LRAM works and
how it compensates for wetland impacts, in connection with the Bayou Bridge public notice or
the Corps’ LRAM public notice process, it is essentially impossible for the public to evaluate any
LRAM proposal. As a result, Bayou Bridge’s recent submission of its mitigation to DNR and its
LRAM analysis does not provide meaningful information for comment. Nor does it provide any
of the required analyses.
E. Mitigation Will Not Reduce the Impacts of This Project to Insignificance.
The impacts of this project on the Atchafalaya Basin cannot be mitigated to
insignificance, for several reasons. First, unlike the Corps’ previous mitigation method, the
modified Charleston method, the LRAM apparently does not require mitigation for indirect,
secondary, or cumulative impacts. And second, known defects in mitigation render it insufficient
to reduce the significant impacts of this project to insignificance.
1. The Required Consideration of Cumulative,
Secondary, and Indirect Impacts is Missing.
NEPA requires the Corps to consider cumulative, secondary, and indirect impacts as part
of the mitigation process. 40 C.F.R. § 1508.25. See also O'Reilly v. U.S. Army Corps of
Engineers, 477 F.3d 225, 235 (5th Cir. 2007). However, the Corps’ LRAM for mitigation
apparently does not require mitigation for a project’s cumulative, secondary, and indirect
impacts. The LRAM Guidebook and associated spreadsheets are available at:
https://ribits.usace.army.mil. In contrast, the 2013 and 2015 Modified Charleston Methods
included these impacts as factor (f), “This factor considers the potential cumulative and indirect
impacts of the proposed project.” The Corps did not explain why it removed this consideration,
but the fact that the LRAM does not require mitigation for cumulative, indirect, and secondary
impacts of the project renders any mitigated FONSI deficient and in violation of NEPA.

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2. Defects in Mitigation Render It Insufficient to Reduce Significant Impacts.
The Corps’ use of mitigation is intended to achieve the national goal of "no net loss" of
wetland habitat. In theory, for every acre of wetland destroyed, an acre or more will be created or
preserved. Many problems exist with the Corps’ mitigation program, however, and the Corps has
no record of the successes and failures of the mitigation it has approved over the years,
particularly in the Atchafalaya Basin.
Further, the no net loss of wetlands goal is entirely different than the consideration of
whether the Bayou Bridge mitigation renders the significant impacts of its project insignificant.
In fact, due to the unique and valuable nature of the wetlands in the Atchafalaya Basin, Bayou
Bridge’s mitigation cannot and will not render the significant impacts of its project insignificant.
Despite advancements in the field, the nature of wetlands ecology is still not fully understood by
scientists so “strong scientific footing” is needed to truly predict long-term environmental
impacts. Exhibit I: Lisa M. Schenck, Wetlands Protection: Regulation Need to Give Credit to
Mitigation Banking, 9 DICK. J. ENVTL. L. POL’Y 103 (2000).
i.

Bayou Bridge’s Mitigation Does Not Replace
the Unique Value of the Atchafalaya Basin Wetlands.

Bayou Bridge’s proposed mitigation, developed according to the LRAM, does not render
the effects of its project on the Atchafalaya Basin insignificant. Instead, it attempts to replace
wetland values unique to the Atchafalaya Basin with dissimilar wetlands in wetland mitigation
banks that do not share the unique values of the Basin. While we do not know where Bayou
Bridge’s mitigation bank will be, it is likely that at least a large portion of it will not be located in
the Basin. In fact, similar recent projects have used mitigation banks or mitigation projects in
New Orleans. If this is where Bayou Bridge’s mitigation will be, obviously this does not come
close to replicating the wetland values specific to the Basin.
The uniqueness of the Atchafalaya River Basin cannot be overlooked. It has immense
ecological diversity, hosting both saltwater and freshwater organisms. It has abundant hardwood
trees, which render the Atchafalaya wetlands as cost-efficient because it benefits from large
amounts of storm water, preventing tidal and wetlands erosion. Exhibit J: Bryan P. Piazza, The
Atchafalaya River Basin: History and Ecology of an American Wetland, pp. 83-86, College
Station: Texas A&M University Press, 2014. Creating mitigation banks elsewhere reduces the
Atchafalaya River Basin’s effectiveness and does not do anything to restore this ecologically
sensitive zone that is crucial to Louisiana wetland health. Exhibit K: Jennifer Neal, Paving the
Road to Wetlands Mitigation Banking, 27 B. C. ENVTL. AFF. L. REV. 161, 173-74 (1999).
Further, Bayou Bridge’s proposed mitigation recently made available by the DNR
reflects that it plans to mitigate only 64% of impacts via in-kind/in-basin credits. Thus, 36% of
the mitigation will not be in the Basin and will necessarily fail to mitigate the loss of unique
Basin attributes. Even with the “in-basin” mitigation, the bank sites can be far from the actual
impacts. This means that the ecological conditions that make the Atchafalaya River Basin so
precious to Louisiana could potentially be extinguished in place of replica ecosystems in the
form of mitigation banks. Wetlands present a unique problem for regulators because unlike

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other regulated substances, they are highly differentiated and it is more difficult to quantify their
functional value. The Corps’ LRAM does not appear to effectively gauge the value of
Atchafalaya Basin wetlands. Thus, Bayou Bridge’s proposal may displace these unique
ecosystems with an ineffective replacement in a new location. Mitigation banking has been
called a “cheap trick,” enabling original wetlands to be degraded in exchange for their less
valuable, less sustainable mitigation bank counterparts. Neal at 180.
Worse yet, even the 64% of impacts being mitigated “in kind” is not properly
characterized. Bayou Bridge represents that 100% of the impacts of its project are “temporary,”
and the Corps’ public notice essentially repeats that error (stating that only .03 acres will be
“lost”). Bayou Bridge therefore conducted its LRAM calculations under the assumption that all
impacts are temporary. To suggest that a project which will install a 162-mile long pipeline in
invaluable wetlands in the Atchafalaya Basin will not result in any permanent loss of any
wetlands is, on its face, absurd. The Corps and Bayou Bridge must support this conclusion.
Even with respect to the wrongly-characterized “temporary impacts,” Bayou Bridge has
excluded all temporary impacts to PEM habitats, saying “compensatory mitigation is not
required for temporary impacts to emergent wetlands, scrub-shrub wetlands, or streams as these
features will be allowed to return to pre-construction conditions upon completion of
construction.” This is unrealistic, unsupported, and unproven.
ii.

Mitigation Banks Are Not Well Regulated and Can Fail.

The Corps apparently has no program to monitor the success of mitigation banks and
other mitigation projects, nor does it monitor whether wetlands in mitigation banks are
maintained. It is a legitimate concern that "after all the credits are sold, the entrepreneurs who
create the mitigation banks will simply move on to the next project, ignoring the question of
ongoing maintenance." Exhibit L: Kathrin Ellen Yates, Wetlands Mitigation and Mitigation
Banking in Louisiana, 59 LA. L. REV. 591, 605 (1999), quoting Banking on Wetlands, Planning
Magazine, Feb. 1995, at 11-15. In such a case, “responsibilities for ongoing maintenance and
monitoring to keep the wetland alive years after the profit has been absorbed would fall on the
tax payers.” Id.
Furthermore, mitigation banks can be subject to fraud as well as double-dipping, where
the same mitigation bank property is used as credit for two different proposals. Because the
Corps apparently has no system to monitor mitigation banks, its reliance on them is arbitrary.
There have been documented examples of mitigation banking fraud, the most famous example
being at the Fallbrook Golf Course in California. Tod Leonard, Sad, Baffling Story at Fallbrook
Golf Club, the San Diego Union-Tribune (March 14, 2016),
http://www.sandiegouniontribune.com/sports/golf/sdut-fallbrook-golf-course-troubles-closing2016mar14-story.html.
In sum, the Bayou Bridge application fails to meet the requirements of NEPA and the
Clean Water Act. The Corps must complete an Environmental Impact Statement on this project
before it can consider granting the permit.

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Sincerely,
/s/ Lisa W. Jordan
_________________________
Lisa W. Jordan, Supervising Attorney
Tulane Environmental Law Clinic
6329 Freret Street, Suite 130
New Orleans, LA 70118
Counsel for Citizen Groups

/s/ Allison N. Skopec
_________________________
Allison N. Skopec, Law Student
Tulane Environmental Law Clinic
6329 Freret Street, Suite 130
New Orleans, LA 70118
cc:

Alison Fontenot, EPA, Fontenot.alison@epa.gov
Raul Gutierrez, EPA, Gutierrez.Raul@epa.gov

Exhibit List: Comments on Proposed Bayou Bridge Pipeline, MVN-2015-02295-WII, WQC
160921-03











Exhibit A: Additional Petitions by Members of the Public and Citizen Groups in
Opposition to Bayou Bridge Pipeline
Exhibit B: Spoil Bank Photo 1
Exhibit C: Spoil Bank Photo 2
Exhibit D: Draft LRAM Public Notice
Exhibit E: Citizen Groups Comments on LRAM
Exhibit F: Corps Press Release Announcing Launch of LRAM
Exhibit G: Tulane Environmental Clinic emails to Corps re LRAM Decision (5/25/16 and
June 29, 2016)
Exhibit H: Tulane Environmental Law Clinic FOIA Request to Corps re LRAM (12/7/16)
Exhibit I: Lisa M. Schenck, Wetlands Protection: Regulation Need to Give Credit to
Mitigation Banking, 9 DICK. J. ENVTL. L. POL’Y 103 (2000).
Exhibit J: Bryan P. Piazza, The Atchafalaya River Basin: History and Ecology of an
American Wetland, pp. 83-86, College Station: Texas A&M University Press, 2014.
Exhibit K: Jennifer Neal, Paving the Road to Wetlands Mitigation Banking, 27 B. C.
ENVTL. AFF. L. REV. 161, 173-74 (1999).
Exhibit L: Kathrin Ellen Yates, Wetlands Mitigation and Mitigation Banking in
Louisiana, 59 LA. L. REV. 591, 605 (1999)