Fifth Circuit to hear PLF suit over EPA “vetoing” Miss. flood control

New Orleans, LA; February 7, 2012: This Thursday — February 9, 2012 — the U.S. Fifth Circuit Court of Appeals will hear oral arguments over the U.S. Environmental Protection Agency’s blocking of the Yazoo Backwater Project, a vital flood-control project for the lower Mississippi Delta.

The lawsuit against EPA is brought by the Board of Mississippi Levee Commissioners, the agency charged with protecting the lower Mississippi Delta from devastating floods. 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.

At issue is EPA’s “veto” of construction of the key element of the Yazoo Backwater Project — a pumping station to reduce the effects of catastrophic flooding in the lower Mississippi Delta. PLF and the Board contend 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.

A federal district court sided with EPA in a ruling on March 31, 2011. The court held that the evidence was insufficient to show that such an exemption had been intended by Congress.

“On appeal, we are arguing that the trial court misinterpreted the evidence,” Schiff said. “Under the terms of the Clean Water Act, EPA is barred from interfering because Congress approved this flood-control project after a formal environmental briefing. When Congress appropriated money for the pumping station in 1982, lawmakers had all the required information in front of them. They had received an environmental impact statement from the Army Corps of Engineers. We believe that the evidence should make this clear to the appellate court.”

Meanwhile, EPA’s veto means that the residents of the South Delta remain the only people in the Mississippi River watershed who do not have effective flood control in place.

EPA vetoed the pump project in August, 2008, claiming that the project would harm wetlands. However, the Clean Water Act prohibits EPA from vetoing any project approved by Congress prior to December 27, 1977, if 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.

“EPA had no business pulling the plug on this vital pumping facility,” said PLF’s Schiff. “The lives and property of thousands of people in the lower Mississippi Delta are at stake. The threat of devastating floods is always present in this region, and that is why Congress authorized the Yazoo Backwater Project as early as 1941, because people and their property must be protected.”

EPA ignored crucial evidence of Congress’ knowledge and intent

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 more than two years ago. The Board notified EPA of its discovery, but EPA nevertheless went forward with issuing its veto of the pump station. “EPA appears to have been intent on blocking 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.

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, “The residents of the Mississippi South Delta were first promised flood protection more than 70 years ago. EPA’s intrusion has blocked the last phase of the project, so we’ve appealed to the Fifth Circuit in order to bring this project to a long-awaited completion.”

An environmentally sensitive project

“This project has been carefully designed to be environmentally sensitive,” said Schiff. “New vegetation would be planted across more than 55,000 acres as part of a major reforestation plan.”

Peter Nimrod has detailed the broad environmental benefits: “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.”

About Pacific Legal Foundation
Donor-supported Pacific Legal Foundation is a legal watchdog organization that litigates, pro bono, for limited government, property rights, and a balanced approach to environ­mental protection, in courts across the country.

PLF attorneys are currently before the U.S. Supreme Court in a high-profile challenge to over­reaching EPA regulatory action — Sackett v. EPA. Oral argument was held on January 9, and a decision is expected in spring or early summer. This is the seventh time in our history that a PLF case for liberty and limited government has been heard at the nation’s highest court.