Reilly Morse Attorney at Law

Unprecedented development along the Mississippi coast, fueled by the casino industry, has raised increasing concern about environmental impacts of casinos proposed in sensitive wetlands areas. The speed of initial development took Mississippi officials and the Corps by surprise. Local residents saw and smelled early environmental effects of the casino industry - sewage discharge violations, a large fish kill, and increased marine debris. Other impacts - wetlands loss, degraded water and air quality - accumulate in relatively smaller but steady increments.

Although individually minor, these cumulative effects cause greater harm over time. Coastal wetlands provide 90% of the food for marine life, filter pollutants, and protect against erosion and flooding. Without implementation of coastal wetlands regulations, development would have cut in half the state's tidal marsh areas by 1990.

As casinos pressed into relatively pristine wetlands classified for residential and recreational uses, local citizens urged Corps Headquarters to review permits issued by the Mobile District Corps. Finally, Corps Headquarters directed the Mobile District Office to conduct programmatic environmental impact statement (EIS) on the cumulative and secondary impacts of casino development. Local citizens groups and some individual members who urged preparation of an EIS, have been sued for their support. Yet, public support for the environment remains strong. In fact, 75% of Mississippians polled recently said that the amount of growth and development brought on by casinos was a serious environmental threat.

Development advocates assert that an EIS is unnecessary because the state has a comprehensive coastal wetlands plan known as the Mississippi Coastal Program. This long range plan was prepared in cooperation with, and funded by, federal agencies. The plan included input from local government, regional planners, industries and the public. The overriding goal was to promote decisions that balance development with the environment. Maps classify the uses for every segment of coastal wetlands. Like any plan, however, the Coastal Program is only as effective as those who implement it. Casinos, backed by local politicians, have a nearly unbroken string of victories in rezoning residential or recreational areas into industrial sites, a trend jeopardizing the Program's integrity.

In 1994, the office of Ocean and Coastal Resource Management (OCRM), the federal agency responsible for oversight, found that Mississippi failed to properly administer the Coastal Program when it came to casinos.1 In response, the Department of Marine Resources (DMR) commissioned a report from the Mississippi-Alabama Sea Grant Consortium to review the laws and recommend changes to current regulatory policy.2 The Sea Grant report was delivered in 1996, but OCRM found in 1997 that no changes had yet been made. In the meantime, the Commission on Marine Resources (CMR), a board of political appointees which administers the Coastal Program, had approved two casinos in undeveloped parts of St. Louis Bay.

Several major problems hamper state regulation of casinos. A casino does not fit any category of water-dependent industry in the Coastal Program, which predates dockside gambling. The Coastal Program has general policies to guide waterfront development as new uses arise, but CMR has not adopted any policies into the Coastal Program.

As OCRM reported in 1994 and again in 1997, there has been inadequate staff assigned to administer the Coastal Program: two staff members with a case load of over 400 applications per year. Addressing the direct, indirect, and cumulative effects of large casino proposals overtax the time and skills of the staff. More discouraging, however, is that staff recommendations to deny a casino project are almost always ignored by CMR. In the past, DMR staff has "strongly recommend[ed] the denial of permits for casinos in general use districts."3 In 1996, DMR staff urged CMR to turn down two such proposals for St. Louis Bay, but DMR's advice went unheeded.

Lack of effective cooperation between DMR and other involved state and federal agencies is another problem. Preliminary approval by one state agency subjects later agencies to increased levels of local political pressure to conform to the earlier ruling. In addition, casino developers and their allies bring powerful financial and political pressures of their own. A two-term member of CMR was not reconfirmed by the Senate due to his opposition to casinos in undeveloped parts of St. Louis Bay.4

Almost without exception, CMR has ruled that any casino development serves a higher public interest than preservation of the affected wetlands and their ecosystems. Alternative commercial sites are ruled out solely because the developer insists on strict adherence to its site selection criteria. The CMR also ruled that its approval of two casinos for pristine shorelines of St. Louis Bay sets no precedent and creates no cumulative impacts. These continuous changes prompted EPA to raise concerns that the Coastal Program was not being followed. Similarly, the fact that the Mobile Corps had issued 23 permits for casinos with more on the horizon, prompted the decision to order an EIS.

An EIS is a tool to assess the potential impacts both individually and cumulatively so that as individual permit actions come up in the future, there will exist a database to understand these impacts. The decision to issue a permit must be based upon the probable impacts, including cumulative impacts, of the proposed activity, but as recently as 1990, the Corps admitted that it did not give adequate consideration in the permit process to cumulative impacts. At a recent Gaming Summit, a Mobile Corps representative stated that environmental impacts from casinos to date have been "pretty insignificant." However, a study prepared for DMR on pollution effects of casinos points out that wetlands loss is bound to increase significantly if casinos are granted land use changes and begin to locate in sensitive areas. DMR itself has acknowledged the existence of a threshold at which "impacts associated with 25 or 30 casinos especially if they are allowed to locate in our more fragile bay systems could be very serious."5 Before developments proliferate in St. Louis Bay, Back Bay of Biloxi, and Deer Island, it is prudent to take a longer-term perspective on wetlands and other environmental degradation.

An EIS is an appropriate tool to use when an important ecosystem is threatened by a development boom or when significant threats to water quality exist. Experts note that the environmental impact of a casino is about the same as that of a small town. As things now stand, St. Louis Bay will face impacts equivalent to that of two towns before water quality regulators complete a pollution budget for this severely stressed water body. At least three projects have been announced for Deer Island and adjacent water bottoms. Given the problems with administering the Coastal Program and the unrelenting pressure to intrude into pristine wetlands, an EIS is the right action to take, right now.
 

ENDNOTES
1. Ocean and Coastal Resource Management, NOAA, Final Evaluation Findings for Mississippi's Coastal Program, May 1991 through April 1993, 35.

2. R. McLaughlin and M. Hess, Casino Gaming on Public Waters, report to Dept. of Marine Resources 36 (1996).

3. Jeffrey P. Reynolds and Daniel L. Singletary, Environmental Concerns and the Impact of Wetlands Regulations on Mississippi's Gaming Industry, 64 Miss. L.J. 530 (1995) (quoting BMR attorney Runnells).

4. Three more nominees in wings, Sun-Herald, March 22, 1997, B-1.

5. Reynolds, 64 Miss. L.J. at 546 (citing the Gill Report).
 

Mr. Morse is a third-generation Gulfport lawyer in solo practice. He is a graduate of Millsaps College and Ole Miss Law School. He clerked for Justice Michael Sullivan of the Mississippi Supreme Court. He has worked on environmental issues relating to dockside gaming for four years.
 

University of Mississippi