| A Request for an Advisory Opinion, submitted by Heather Evans, regarding whether the Louisiana Code of Governmental Ethics ("Code") would prohibit her from accepting a part-time position with HYDRIK Wetlands Consultants, LLC ("HYDRIK") while maintaining her employment with the Enforcement Section of the Louisiana Department of Natural Resources ("DNR") - Office of Coastal Management ("OCM") - Interagency Affairs & Field Services Division ("IAFSD"). |
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DNR/OCM regulates the Louisiana Coastal Zone boundary and certain activities that take place within, in accordance with the federally-approved Louisiana Coastal Zone Management Program that was established by Louisiana's State and Local Coastal Resources Management Act of 1978, La. R.S. 49:214.21, et seq. ("SLCRMA"). The SLCRMA authorized DNR/OCM with implementing the Louisiana Coastal Resources Program ("LCRP"). Specifically, DNR/OCM regulates activities that occur in wetlands, as well as in other habitats when those activities would have a significant impact on the "coastal resources" and "coastal waters" of the state, including but not limited to beaches, dunes, barrier islands, cheniers, and salt domes. OCM is comprised of two (2) divisions: the Permits/Mitigation Division and the Interagency Affairs & Field Services Division. The IAFSD is comprised of two sections: Field Services Section and the Enforcement Section.
Ms. Evans has been employed in the Enforcement Section of the DNR/OCM/IAFSD for the last twelve (12) years and is currently a Coastal Resource Scientist IV on a full-time basis. Enforcement authority includes ensuring
monitoring of permitted activities and compliance with the mitigation
requirement and the terms and conditions of Coastal Use Permits; issuing administrative penalties; Cease and Desist Orders; contributions to the coastal resources fund; restoration of the impacted area to pre-construction conditions; and/or, cost of mitigation or restoration via civil or criminal court proceedings. Her duties include: 1) reviewing possible unauthorized activities performed without a Coastal Use Permit ("CUP") or in violation of an existing permit; 2) bringing the violator into compliance with the LCRP; 3) reviewing after-the-fact applications; 4) assisting applicants with completion of the application and issuance of the permit; and, 5) coordinating with the United States Army Corps of Engineering ("USACE"), Louisiana Wildlife and Fisheries, and the State Lands Office to complete after-the-fact CUP applications and mitigation requirements as necessary.
The Field Services Section of the IAFSD is charged with biological assessments of proposed activities and monitoring both permitted activities and unauthorized activities. The field services section is responsible for all biological field investigations and enforcement monitoring activities within the Louisiana Coastal Zone to ensure and maintain compliance with the SLCRMA. Investigations and assessments are performed to evaluate and document any possible direct and significant impacts to coastal waters and provide alternatives for avoidance with minimization of impacts to wetland and coastal resources associated with activities within the coastal zone. Surveillance activities are performed to document potential permitted or unpermitted violations of the LCRP within the Louisiana Coastal Zone. Biological assessments are performed to document any proposed permits for authorization as well as monitoring mitigation and completed activities for compliance with permit conditions. Any issues discovered during the Field Services' monitoring and investigations related to unauthorized activities or activities exceeding issued permits are referred to the Enforcement Section. Ms. Evans is interested in part-time employment with HYDRIK Wetlands Consultants, LLC ("HYDRIK"). HYDRIK specializes in wetland delineation and permitting, flood control and management, and GIS mapping. Because of their experience with the EPA and USACE, HYDRIK is retained by industrial, commercial, residential development, and oil & gas exploration companies to assist with the completion of the companies' projects. 95% of HYDRIK's work is outside of the coastal zone and is, therefore, exempt from CUP requirements. Although the remaining 5% of HYDRIK's work is subject to CUP requirements, she does not participate in matters related to HYDRIK in the Enforcement Section of the DNR/OCM/IAFSD.
Her position with HYDRIK would be a Project Manager, where one of her primary duties would consist of coordinating with the USACE concerning 404/10 permit approvals while providing the Senior Project Manager regular updates on statuses. The Clean Water Act, 33 U.S.C. 1251 et seq., establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters. Section 404 of the Clean Water Act prohibits the discharge of dredged or fill material into waters of the United States without a permit from the USACE. The USACE determines their regulatory jurisdiction over wetlands under the authority of Section 404 of the Clean Water Act, as overseen by the Environmental Protection Agency. 404/10 permits, issued by the USACE, protect the aquatic environment, while ensuring regulatory program efficiency and ensure fair, reasonable and timely decisions is made about activities that would result in a discharge of dredge or fill material into waters of the United States, including special aquatic sites such as wetlands.
Her other Project Manager duties would include: 1) coordinating frequently with the Senior Project Manager to assist in estimating milestones during the application process and reporting back on estimated times to reach public notice; 2) overseeing pre-notice application modifications that may need to be submitted by the office; 3) coordinating with Louisiana Department of Environmental Quality to obtain Water Quality Certification approval; 4) communicating with the USACE in order to obtain post-notice comments within a timely manner; 5) addressing needs and alternatives and responding to the USACE and private comments post notice; and, 6) coordinating with the project engineer to obtain sewer tie in approvals for DEQ and plat/ drainage approval for the USACE leading to USACE issuance of a mitigation letter.
Additionally, she would be consulted to ensure completeness of plat drawings and initial applications prepared by HYRDRIK office staff members prior to formal submittal to the Senior Project Manager. Other office staff members would submit the application. From this point, she would coordinate with USACE staff on any revisions needed to complete the application and expedite the path to final approval. Ms. Evans would communicate regularly with the Senior Project Manager to discuss any project changes, minimization options, and general approaches to addressing the particular project's needs, alternatives, objectives, responses, etc. Once the mitigation letter is issued by the USACE, the Senior Project Manager will take over to coordinate mitigation. Once mitigation is paid, Ms. Evans would then be responsible for communicating with the USACE analyst to assist in expediting the draft permit issuance.
The Senior Project Manager would handle the 5% of HYDRIK's work that falls within the Coastal Zone. Ms. Evans would not be responsible for handling any applications for permits submitted to the Permits/Mitigation Division of the DNR/OCM. She would also not be responsible for handling any matters that fall under the jurisdiction of the Enforcement Section of the DNR/OCM/IAFSD.
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La. R.S. 42:1102(2)(a)(i) defines "agency" to mean a department, office, division, agency, commission, board, committee, or other organizational unit of a governmental entity. "Agency of the public servant" and "his agency" when used in reference to the agency of a public servant shall mean for public servants in the twenty principal departments of the executive branch of state government, the office in which such public servant carries out his primary responsibilities.
La. R.S. 42:1111(C)(1)(a) prohibits a public servant from receiving any thing of economic value for any service, the subject matter of which is devoted substantially to the responsibilities, programs, or operations of the agency of the public servant and in which the public servant has participated.
La. R.S. 42:1111(C)(2)(d) provides that no public servant and no legal entity in which the public servant exercises control or owns an interest in excess of twenty-five percent, shall receive any thing of economic value for or in consideration of services rendered, or to be rendered, to or for any person during his public service unless such services are: (d) Neither performed for nor compensated by any person or from any officer, director, agent, or employee of such person, if such public servant knows or reasonably should know that such person has or is seeking to obtain contractual or other business or financial relationships with the public servant's agency; conducts operations or activities which are regulated by the public employee's agency; or has substantial economic interests which may be substantially affected by the performance or nonperformance of the public employee's official duty.
La. R.S. 42:1111A prohibits a public employee from receiving anything of economic value, other than compensation and benefits from the governmental entity to which he is duly entitled, for the performance of the duties and responsibilities of his office or position.
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Adopt the proposed advisory opinion.
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| Assigned Attorney: |
LaToya D. Jordan |
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