Lawsuit to defend Yazoo Backwater flood control is appealed to the Fifth Circuit
Greenville, MS; April 29, 2011: Officials charged with protecting the lower Mississippi Delta from devastating floods filed a court appeal this week in support of completion of the Yazoo Backwater Project, a vital flood-control project that has been unjustifiably derailed by the U.S. Environmental Protection Agency.
The appeal was filed with the Fifth U.S. Circuit Court of Appeals by the Board of Mississippi Levee Commissioners. The Board is represented, free of charge, by attorneys with donor-supported Pacific Legal Foundation, a legal watchdog organization that litigates for balance and common sense in environmental regulations.
Peter Nimrod speaks during PLF's press conference
The appeal follows a March 31, 2001, ruling by a federal district court that upheld EPA’s “veto” of construction of the key element of the project – a pumping station to reduce the effects of catastrophic flooding in the lower Mississippi Delta. The Board had argued that EPA had no authority to intervene in the matter because the project had obtained a special congressional exemption from EPA veto in the early 1980s. The district court, however, held that the evidence was insufficient to show that such an exemption had been intended by Congress.
“This issue couldn’t be more relevant than right now, when once again the region is threatened with flooding due to high cresting forecast for the Mississippi River,” said Damien Schiff, a senior staff attorney with PLF.
"This issue couldn’t be more relevant than right now, when once again the region is threatened with flooding."
“As to the merits of our case, we believe the trial court misinterpreted the evidence,” Schiff continued. “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 pumping station in 1982, lawmakers had received an environmental impact statement from the Army Corps of Engineers. Congress had all the required information before them. We believe that the evidence will make this clear to the appellate court.”
Meanwhile, the district court’s decision means that, at least for the time being, the residents of the South Delta will remain the only people in the Mississippi River watershed who do not have effective flood control in place.
In the ruling’s wake, Peter Nimrod, Chief Engineer of the Mississippi Levee Board, said, “This disappointing ruling is not going to stop the board from continuing to devote its full energies to securing adequate flood protection for the people of the South Delta region, as Congress mandated seventy years ago. That mandate remains in effect – and so does our commitment to making sure it’s fulfilled.”
The EPA vetoed the pump project in August, 2008, claiming that the project would harm wetlands. However, the Clean Water Act (Section 404(r)) prohibits EPA from vetoing any project approved by Congress prior to December 27, 1977, when the environmental impacts of the project were made known to Congress before construction began. Such is the case with the proposed pumping station for the Yazoo Backwater Project, today’s lawsuit contends.
“As we will argue to the appellate court, the law and the evidence are clear: EPA had no business pulling the plug on this vital pumping facility,” said PLF attorney Damien Schiff. “Farmland, businesses, and the lives and homes of thousands of people in the lower Mississippi Delta are at stake. Congress authorized the Yazoo Backwater Project as early as 1941 because the threat of devastating floods is always present, and protective measures must be taken.”
“It’s especially timely right now that the Levee Board is appealing the district court’s decision upholding EPA’s arbitrary veto,” added Schiff. “The House Subcommittee on Water Resources and Environment has scheduled a hearing for next month on EPA’s controversial Clean Water Act veto of a permit issued to a West Virginia coal mining company. So clearly, people are starting to recognize a pattern of EPA abuse.”
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. The Board notified the EPA of its discovery, but the EPA nevertheless went forward with issuing its veto of the pump station. “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,” said Schiff.
The pumping station: vital protection against devastating floods
The purpose of the proposed pumping station is to reduce the effects of catastrophic flooding in the lower Mississippi Delta. 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 Backwater Area. In 2009, devastating flooding overtook 400,000 acres including 152,000 acres of agricultural land, causing extensive economic damage.
The pumping station would lift waters out of the Backwater Area, back into the Mississippi River, to flow down to the Gulf of Mexico.
Peter Nimrod, Chief Engineer of the Mississippi Levee Board, stated, “It has been seventy years since the residents of the Mississippi South Delta were first promised flood protection. Because of EPA’s intrusion, the last phase of the project is still unfinished, and we’re appealing to the Fifth Circuit in order to bring this project to a long-awaited completion.”
An environmentally sensitive project
“It is ironic that EPA has dammed up this project, because it has been carefully designed to be environmentally sensitive,” said Schiff. “For example, new vegetation would be planted across more than 55,000 acres as part of a major reforestation plan.”
Peter Nimrod stated: “Besides providing protection against devastating floods, the Yazoo Backwater Project will vastly increase benefits for every environmental resource including wetlands, terrestrial, aquatic and duck habitat, through the reforestation of the one-year floodplain. It is truly a model plan.”
The suit is titled Board of Mississippi Levee Commissioners v. United States Environmental Protection Agency.
About Pacific Legal Foundation
Donor-supported Pacific Legal Foundation (www.pacificlegal.org) is a legal watchdog organization that litigates, pro bono, for limited government, property rights, limited government, and a balanced approach to environmental protection, in courts across the country.