The Board of Mississippi Levee Commissioners has filed an appeal of a March federal court decision that threw yet another monkeywrench in a 70-year battle over a giant pumping station that would alleviate flooding in the lower Mississippi Delta near Vicksburg.
The board filed the action with the Fifth U.S. Circuit Court of Appeals.
The Yazoo Backwater Project pumping station, which engineers say would lower a 100-year flood by 4 feet, was first authorized by Congress in 1941, but seven decades later the project remains embroiled in legal battles.
The proposed pumping station would be one of the largest in the world, with cost estimates of $220 million or more.
When the Mississippi River floods, the natural gravitational flow of other smaller rivers in the area is impeded, causing them to overflow and inundate the Yazoo backwater area. The station would lift water out of the area and pump it back into the Mississippi River.
The final reformulation report for the project was released Nov. 16, 2007, but the Environmental Protection Agency, in a rare use of its veto power under the Clean Water Act, turned thumbs down on the project Aug. 31, 2008.
“In 2008, the backwater got to 92.2 feet, which flooded 344,000 acres, including 121,000 acres of farmland,” Peter Nimrod, the board’s chief engineer, told a hearing of the Mississippi River Commission at Greenville last month.
“In 2009, the backwater got up to 93.7 feet, which flooded nearly 400,000 acres, including 152,000 acres of farmland. Trees and wildlife were decimated by this flooding.”
The board’s position, Nimrod says, is that the EPA veto was illegal, and in August 2009, with assistance from the Pacific Legal Foundation, it sued the agency in the U.S. District Court of Northern Mississippi, contending that the proposed station fell under an exemption in Section 404 of the Clean Water Act.
The Pacific Legal Foundation is a donor-supported legal watchdog organization that litigates for balance and common sense in environmental regulations.
EPA had no veto authority
“We believe that the EPA had no legal authority to veto the project,” Nimrod says, and “we asked the judge for oral arguments.”
But on March 28 this year, U.S. District Judge Sharion Aycock ruled against the board without granting oral arguments.
The board was opposed by a coalition that included the Environmental Defense Fund, the National Wildlife Federation, and the Mississippi Wildlife Federation, which said the project had the potential to destroy important wetlands habitat.
In reviewing the decision, Nimrod says the board “found what they believe are errors within the ruling, and voted unanimously to appeal the case to the U.S. Court of Appeals for the Fifth Circuit.”
The Yazoo Backwater Project, he says, “is a model project that will not only provide flood protection, but will vastly increase benefits on every environmental resource category, such as wetlands, terrestrial, aquatic, and duck habitat through reforestation of the flood plain.
“The residents of the Mississippi south Delta just want what was promised to them 70years ago — it’s time to complete this last phase of flood protection for the Mississippi Delta.”
Lewis Jones, attorney for a King & Spaulding team of environmental lawyers working pro bono, said “the fact that the EPA chose to exercise its veto power for only the 12th time in its history reflects how potentially damaging it believes this notorious, ill-conceived project to be.”
Large scale reforestation included
Nimrod told the Mississippi River Commission that, in his opinion, the EPA’s veto was based on its contention that the project would destroy wetlands.
“But, the project includes a large scale reforestation project — 55,000 acres — that would provide a 19 percent gain in wetlands forest,” he says. “The EPA completely ignored this, as well as the devastation to wildlife that occurs when there is massive flooding in these areas and animals are forced out into other areas.”
“We believe the trial court misinterpreted the evidence in this case,” says Damien Schiff, a senior staff attorney for the Pacific Legal Foundation.
“Under the terms of the Clean Water Act, this project is immune from EPA interference because Congress approved it after a formal environmental briefing. When Congress appropriated money for the station in 1982, lawmakers had received an environmental impact statement from the Army Corps of Engineers. Congress had all the required information before them, and we believe the evidence will make this clear to the appellate court.”
Schiff says “the law and the evidence are clear: The EPA had no business pulling the plug on this vital pumping facility. Farmland, businesses, and the lives and homes of thousands of people in the lower Mississippi Delta are at stake.
“Congress authorized this project … because the threat of devastating floods is always present, and protective measures must be taken.”
It’s “especially timely,” Schiff says, that the Levee Board is appealing the court decision because the House Subcommittee on Water Resources and Evnrionment has scheduled a hearing this month on the EPA’s controversial veto under the Clean Water Act of a permit issued to a West Virginia coal mining company.
“Clearly, people are starting to recognize a pattern of EPA abuse,” Schiff says.
The Board of Mississippi Levee Commissioners found out about the transmittal to Congress of the 1982 environmental impact statement through a Freedom of Information Act request two years ago, he notes. The board notified the EPA of its discovery, but “the EPA nevertheless went forward with its veto of the pumping station.
“The EPA appears to have been bound and determined to stick its nose into this project, even though there was no need, and we believe there was no legal authority,” says Schiff.
“It’s ironic that the EPA has dammed up this project, because it has been carefully designed to be environmentally sensitive.”
“It is truly a model plan,” says the Levee Board’s Nimrod.