ATCHAFALAYA BASIN, La. — It takes less than a minute to plow down a cypress tree that’s been standing in this swamp for decades or longer.
Dean Wilson watched them fall, one after another, when developers began clearing a path earlier this year for the Bayou Bridge pipeline.
"You see that tree line over there," he said while weaving through cypress-lined channels in a small powerboat last week. "That tree line used to be right here. So all the trees from this point here, that way, they’ve been cleared already. They’ve been plowed to pieces."
As executive director of Atchafalaya Basinkeeper, Wilson is charged with protecting the largest river swamp in America from a steady current of new threats. He sees Bayou Bridge as the latest.
The oil project runs 162 miles across southern Louisiana, cutting through the heart of the Atchafalaya Basin about an hour southeast of Baton Rouge. Wilson and a coalition of crawfishermen and environmentalists are concerned that the pipeline’s 23-mile traverse through the basin will wreck the delicate ecosystem here, which has already been damaged by other projects.
The Atchafalaya’s forested wetlands support migratory birds, gators and crawfish and play a critical flood protection role by sponging up floodwaters to spare downstream neighbors. Some advocates say it should be a national park.
"Just like Yosemite has its natural features that make your jaw drop, so does the Atchafalaya," said Anne Rolfes, head of the grass-roots Louisiana Bucket Brigade. "It’s a significant, unique ecosystem."
The iconic natural feature here is the bald cypress. Known for its feathered leaves, flared trunk and knobby "knees" that rise in surrounding wetlands, the Louisiana state tree is treasured for its peculiar appearance and vital role in the ecosystem. Cypress swamps filter water, provide wildlife habitat and help prevent erosion. Some of the trees are centuries old.
Wilson was dismayed when he heard the federal government’s plan for mitigating Bayou Bridge’s damage to the swamps: restoring a different type of wetland in an agricultural area some 55 miles away.
The offsite project, at the northern edge of the Atchafalaya Basin, is a type of mitigation strategy federal regulators routinely approve to offset wetlands damage.
But pipeline critics say it’s a bad match, doing nothing to repair the destruction of the cypress ecosystem.
In February, a federal district court stunned pipeline backers when it sided with environmentalists on the mitigation issue and agreed to halt construction within the Atchafalaya Basin while a broader lawsuit moved forward.
The victory was short-lived. An appeals court lifted the injunction weeks later.
Today, the environmental coalition heads back to court to make its case to federal judges again, asking the 5th U.S. Circuit Court of Appeals to reinstate the freeze on construction and tree clearing.
Pipeline developer Energy Transfer Partners LP did not comment for this story but has previously vowed that it is "committed to restoring 100% of any affected area."
Wilson is skeptical: "You cut them again, they will never come back."
‘It is not and will never be a cypress swamp’
The plan for mitigating the damage to cypress trees comes from the Army Corps of Engineers, which approved permits for Bayou Bridge in December, requiring off-site mitigation in a different area of the Atchafalaya Basin.
The approach stems from a 2008 Army Corps and EPA regulation that governs compensatory mitigation for development in wetlands. The rule — touted by the agencies as an effort to boost success and transparency of approved projects — set out preferred offset strategies for wetlands permits approved under Section 404 of the Clean Water Act.
The policy gives preference to "mitigation banks," which are private wetlands sites that sell credits to developers to offset damage elsewhere. A permittee makes up for wetlands damage caused by its project by purchasing credits for acreage at an approved mitigation bank. The long-standing federal goal is "no net loss" of wetlands.
The approach has attracted controversy through the years, with critics arguing that mitigation banking allows developers to use cash to sidestep Clean Water Act compliance. Some environmentalists are skeptical that off-site banks can really replace the natural resources lost to project development.
In the case of the Bayou Bridge pipeline, though, it’s not the banking approach itself that concerns opponents. It’s the way it’s being done.
Bayou Bridge is expected to affect nearly 600 acres of bald cypress-tupelo swamp. The Army Corps considers about 75 percent of those impacts to be temporary, but pipeline opponents contend that all the damage should be considered permanent because it’s nearly impossible to re-establish a cypress swamp in modern hydrologic conditions.
Using a Louisiana-focused assessment tool, the Army Corps determined that ETP could offset wetlands impacts by purchasing about 1,500 credits for cypress-tupelo swamp in the Atchafalaya Basin. But with limited cypress credits available in mitigation banks for the basin, Bayou Bridge instead purchased about 435 cypress credits (all that were available) and a little more than 1,000 bottomland hardwood credits to make up the difference.
Most of the credits are from the Bayou Fisher Mitigation Bank, farm fields converted to wetlands about 55 miles from the pipeline’s path.
In other words, the mitigation strategy aimed to offset most of the pipeline’s Atchafalaya cypress swamp impacts by using bottomland hardwoods grown at an offsite mitigation bank. The hardwood credits are in the same river basin but are termed "out-of-kind," swapping one type of aquatic system for another.
Pipeline opponents say the mismatched mitigation is inappropriate, and the Army Corps should have taken a closer look before approving the project.
"The core issue is the Army Corps allowing the destruction of 600 acres of cypress-tupelo swamp in exchange for the mitigation bank credits, which are planting trees in a former cotton field," Earthjustice attorney Jan Hasselman argued during a 5th Circuit hearing last month. "It is not and will never be a cypress swamp."
‘It’s a completely different world here’
Wilson, the basinkeeper, wedged his boat into a stand of cypress and tupelo trees and sighed when asked about the mitigation strategy.
"They have to provide for mitigation, something that’s compatible to the services the swamp has provided. And it’s not," he said. "Just because it has the name wetland on it doesn’t make it the same thing. It’s a completely different world here."
The swamp was high, with cypress knees concealed by about 7 feet of water. Alligators had fled for higher ground. Wilson’s German shepherd, Shanka, stood beside him on the boat, hunting for unlucky crawfish. She settled for leaves that floated by.
Gulf Restoration Network spokesman Dustin Renaud sat in the back of the vessel, taking in the landscape changes during his first return to the waterways since Bayou Bridge construction began.
"It just doesn’t add up," he said. "The mitigation for this permit is a joke."
The Atchafalaya Basinkeeper and Gulf Restoration Network are two of the groups involved in the litigation over the Army Corps strategy. The Waterkeeper Alliance, Sierra Club and Louisiana Crawfish Producers Association-West are also in the fight.
"You’re supposed to compensate as closely as you can," Renaud said of offsite mitigation. "And just because it’s in the basin doesn’t mean it’s the same type of wetland that you’re destroying. We have a lot of bottomland hardwoods in the Southeast. What we don’t have a lot of is deep river swamps."
"If you’re destroying deep river swamps that are very endangered, and you’re replacing it with a very common type of wetland, it’s not equal," he added.
A 90-minute drive from here is the Bayou Fisher Mitigation Bank, the wetlands restoration site called on to offset Bayou Bridge damage to cypress swamps.
The area was planted in 2015, and its seedlings are now starting to peek above the tall grass. In 12 to 15 years, Bayou Fisher will start to look like a real forest, with oak, hickory, pecan, ash and maple trees. A small collection of young cypress trees sits on the land, too.
The nearly 900-acre bank stretches across old farmland that once grew soybeans and rice and held some crawfish ponds. Before the 1960s, the area was a forested wetland, and the mitigation bank is designed to restore it to that state. The Army Corps and other agencies signed off on the bank and its restoration plan in 2014.
Daniel Bollich, ecological program director for Delta Land Services LLC, oversees the project and is eager to clear up what he considers misconceptions about the value of mitigation banks.
Approved sites go through a rigorous federal permitting process, he said, and are subject to regular monitoring to ensure they meet their restoration goals. If a project fails, mitigation "bankers" are on the hook for ensuring restoration elsewhere.
Once established, mitigation bank wetlands are protected by a conservation easement, off-limits to development forever.
The Bayou Fisher Mitigation Bank is providing important benefits for the whole region, he said.
"Part of what the corps looks at is, they’re looking for in-kind and out-of-kind habitats, but they’re also looking for offsets that provide a benefit to the watershed as a whole," he said. "And the Atchafalaya watershed, which we service, is a fairly large watershed."
It’s more than a million acres in total, rolling out from around Simmesport, La., down to the Gulf of Mexico. Bollich said restoring wetlands in the northern piece of the basin, where Bayou Fisher sits, is important because it helps reverse the impacts of agriculture in the area.
He thinks pipeline opponents who criticize the mitigation plan are too narrowly focused on the types of trees grown.
"I guess it’s the old adage of not seeing the forest for the trees," he said.
‘This is, after all, the Clean Water Act, not the Clean Cypress Act’
Army Corps regulations don’t require perfectly matched mitigation banking.
The agency defends its approach for Bayou Bridge by arguing that the credits are a good fit because bottomland hardwoods offer ecosystem benefits similar to those of cypress swamps.
Government lawyers say environmentalists are simply grumbling about the lost aesthetics of the cypress trees.
"[W]hile Basinkeeper and its members may value the aesthetics of cypress trees over the oaks and dogwoods that make up the bottomland hardwoods, the Clean Water Act … does not," the Army Corps recently told the 5th Circuit.
Instead, the agency says, the statute focuses on aquatic functions and services provided by the wetlands. Cypress swamps and bottomland hardwoods are both in a category of nontidal forested wetlands that provide similar functions, the Army Corps says, and it’s those functions that matter under the Clean Water Act, not the exact tree species.
Gibson Dunn & Crutcher LLP attorney Miguel Estrada, representing Bayou Bridge, put it more bluntly in court last month: "This is, after all, the Clean Water Act, not the Clean Cypress Act."
The Army Corps has flexibility on selecting the best mitigation approach for projects. While federal policies set out a preference for "in-basin, in-kind" mitigation bank credits, in which impacts are offset by credits in the same river basin with the same type of wetlands, the agency has authority to consider other approaches.
In an environmental analysis for Bayou Bridge’s permits, Army Corps officials noted that there simply were not enough cypress-tupelo swamp credits available in local mitigation banks to cover the pipeline’s impacts. The bottomland hardwoods were deemed a suitable alternative, and the Army Corps approved permits for the pipeline in December.
The coalition of environmentalists and crawfishermen filed suit in January, raising concerns about the mitigation strategy and other problems with the pipeline’s route.
They argued that federal regulations set a very high bar for the Army Corps to allow "out-of-kind" mitigation credits — especially for difficult-to-replace resources like cypress swamps — and require the agency to carefully document its decision.
The U.S. District Court for the Middle District of Louisiana sided with the groups in February.
Judge Shelly Dick slammed the Army Corps’ assessment, questioning the propriety of the mitigation strategy and writing that "there is not an iota of discussion, analysis, or explanation how [bottomland hardwoods] credits mitigate the loss of function and value of the cypress/tupelo swamp impact."
Dick’s decision drew both cheers and jeers in the legal community. Critics said the judge should have shown more deference to the Army Corps’ approach, while supporters commended her opinion as a nuanced application of both environmental and administrative law.
University of California, Hastings, environmental law professor Dave Owen said the court was right to force the Army Corps to explain itself. If sufficient mitigation options aren’t available for the project, the agency also has the authority to deny the permit — a possibility the Army Corps didn’t seem to entertain, he said.
"It seems like the corps’ presumption is, ‘We have to grant the permit, and if we can’t offer in-kind mitigation, well, we just have to go with the best we’ve got, and that’ll have to be good enough,’" he said. "But that’s not how the law works."
Construction moves forward
The Army Corps stands by its mitigation plan and says it was sufficiently explained in the permit assessment and district policies (see sidebar). And if the court just wanted the agency to provide more detail about its decisionmaking process, it should have given the Army Corps the chance to do so without halting construction.
Environmental lawyers say the Army Corps should have at least prepared an environmental impact statement (instead of the less detailed environmental assessment it opted for) to explore the pipeline’s impacts and additional alternatives.
"We think the impacts are significant," Hasselman said. "That would trigger an EIS and a more robust consideration of all the impacts, which includes the mitigation. Are there other mitigation options besides out-of-kind credits that have very little ecological relationship to the area being harmed?"
As lawyers fill a Houston courtroom today to debate the legal issues, construction inches forward in Louisiana.
Pipeline opponents had hoped Atchafalaya River water levels would be too high for work to continue this month, but Bayou Bridge project manager Cary Farber noted in a recent legal filing that construction crews got back to work on some sections as soon as the district court’s injunction was lifted in March.
"It was determined that while water levels in the Basin were elevated, there were areas within the Basin that were safely accessible," he said.
Work is moving forward on segments of higher ground on each side of the river, with crews clearing vegetation along the pipeline’s route, Farber said. Depending on how fast waters recede, work is expected to restart in the rest of the basin around the beginning of June.
That makes the 5th Circuit’s consideration of the case all the more urgent to pipeline opponents. Though Wilson doesn’t expect the Atchafalaya’s waters to recede that quickly, he’s concerned about ETP’s aggressive construction goals.
"It’s hard to watch," Wilson said, looking back toward the cypress swamps after a day on the water. "There’s no replacing this here."