Downing, James E.

English

University of Denver

Water Law Review Volume 8 Issue 2 Article 48 1-1-2005 Lake Bistineau Pres. Soc'y, Inc. v. Wildlife & Fisheries Comm'n., 895 So. 2d 821 (La. Ct. App. 2005) James E. Downing Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation James E. Downing, Court Report, Lake Bistineau Pres. Soc'y, Inc. v. Wildlife & Fisheries Comm'n., 895 So. 2d 821 (La. Ct. App. 2005), 8 U. Denv. Water L. Rev. 690 (2005). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. WATER LAW REVIEWLake Bistineau Pres. Soc'y, Inc. v. Wildlife & Fisheries Comm'n., 895So. 2d 821 (La. Ct. App. 2005) (holding the Wildlife and FisheriesCommission of the State of Louisiana did not abuse its discretion inimplementing an environmental plan to lower the water level of LakeBistineau since it adequately took into account the environmental, so-cial, economic, and recreational impacts of their decision).Lake Bistineau Preservation Society ("LBPS"), composed of home-owners, business owners, and persons who use the lake for recreationalpurposes, contested an environmental plan recommended by the De-partment of Wildlife and Fisheries of the State of Louisiana ("DWF").The plan would lower the water level in Lake Bistineau seven feet be-low its normal pool stage from July 15 of each year until January 31 ofthe following year, for three consecutive years. The DWF initiated theplan to improve suitable spawning habitat, control the submergedaquatic vegetation, and reduce the accumulation of organic materialon the lakebed. These factors caused a decline in the spawning ofsport fish, made parts of the lake impassable to boat traffic, and ad-versely affected recreational water activities.LBPS filed suit seeking declaratory and injunctive relief in the 26thJudicial District Court for the Parish of Bossier, Louisiana. LBPS ar-gued the DWF exceeded its powers and authority under the LouisianaConstitution when it approved the plan to lower the lake's water level.Specifically, LBPS claimed the DWF's plan was an arbitrary and capri-cious abuse of discretion because the DWF failed to balance the bene-fits of the plan against the economic and recreational costs. LBPS alsocontended the DWF failed to create a record adequately setting outthe basic facts and establishing a rational connection between its find-ings and the decision made. The governing bodies of the parisheswhere Lake Bistineau is located filed a petition of intervention, assert-ing the DWF's proposed plan was reasonable and in the best interest ofthe lake and nearby property owners. The court denied the requestfor the preliminary injunction. LPBS appealed to the Louisiana Courtof Appeal, Second Circuit.The court noted Louisiana's Public Trust Doctrine ("Doctrine"),embodied in Article Nine, Section One of the Louisiana Constitution,required the DWF to protect the Louisiana environment. The Doc-trine did not establish environmental protection as an exclusive goal,but required a balancing process in which DWF had to give full andcareful consideration to environmental costs and benefits, along witheconomic, social, and other factors. The court held the DWF ade-quately considered the economic and recreational impacts, and rea-soned the long-term adverse effects of no-action would ultimately havea greater negative impact on the environment. The DWF's plan hadthe greatest chance of success and was the most cost-efficient. Further,the court noted the preliminary injunction on appeal addressed anVolume 8COURT REPORTSaction that already occurred: the reduction of the lake's water level.However, the court's ruling did not prevent a trial on the merits thatcould take place prior to a scheduled lowering the following year. Thecourt denied the application for a preliminary injunction and affirmedthe trial court's ruling.James E. DowningMAINES.D. Warren Co. v. Bd. of Envtl. Prot., 868 A.2d 210 (Me. 2005) (hold-ing both the Clean Water Act and state certification rights subjected apaper mill to water quality conditions even though the mill had notpolluted any water).S.D. Warren Company ("Warren") owned and operated hydroelec-tric dams requiring a permit pursuant to the Federal Power Act("FPA"). The FPA required permit applicants to comply with theClean Water Act ("CWA") as a condition to the issuance of a permit.The water that passed through Warren's dams entered turbines andthen returned to the river operating in run-of-river mode. The pro-jects, originally licensed between 1979 and 1981, were set to expire in1990, but modifications allowed the license to continue until 2001.Warren filed applications for certification in 1999, and then refiled hisapplications in 2000, 2001, and 2002.In April 2003 the Department of Environmental Protection("DEP") approved water quality certification for the continued opera-tion of Warren's projects subject to a number of conditions. In May2003 Warren appealed DEP's decision to the Maine Board of Envi-ronmental Protection ("BEP"). The BEP found the water to be a dis-charge of a pollutant pursuant to the CWA and, thus, subject to certainconditions for water quality. Warren appealed BEP's judgment to theCumberland County Superior Court, which affirmed BEP's decisionand conditioned the approval of Warren's application for water qualitycertification under the Clean Water Act ("CWA") and state statutes.Warren appealed the superior court's decision to the Maine SupremeCourt.Warren first challenged BEP's certification authority because War-ren's operation of its dam did not result in a discharge. The court,with deference to the BEP's decision, held the operation of Warren'sdams caused a discharge pursuant to the CWA. Specifically, the courtstated water removed from a navigable body of water and then rede-posited into that same body of water constituted a discharge pursuantto the CWA. The court also determined certification rights under theCWA vested in a state if an activity resulted in a discharge. Further-more, once certification rights vested, any conditions the state imposedbecame conditions on the federal license as well.Issue 2

Lake Bistineau Pres. Soc\u27y, Inc. v. Wildlife & Fisheries Comm\u27n., 895 So. 2d 821 (La. Ct. App. 2005)

https://digitalcommons.du.edu/cgi/viewcontent.cgi?article=2165&amp;context=wlr

Lake Bistineau Pres. Soc\u27y, Inc. v. Wildlife & Fisheries Comm\u27n., 895 So. 2d 821 (La. Ct. App. 2005)

Abstract

Similar works

Full text

Available Versions

University of Denver