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EPA Environmental Zealotry Threatens a Vital Flood Control Project

Board of Mississippi Levee Commissioners v. United States Environmental Protection Agency

Contact: Damien M. Schiff

Status: Combined opposition and reply to motion for summary judgment filed July 30, 2010. Defendants' and Defendant-Intervenors' reply due August 30, 2010.

Summary:
In the Flood Control Act of 1941, Congress authorized the construction of the Yazoo Backwater Area Project, located in west central Mississippi. One component of the project is the construction of a pumping station. The purpose of the pumping station is to reduce the effects of catastrophic flooding in the lower Mississippi Delta. When that river floods, the natural gravitational flow of other, smaller rivers in the area is impeded, causing their flow to back up into the Backwater Area. That process has led to the flooding of 1,300 homes, and the damaging of 316,000 acres of agricultural land, with an average annual cost of $7.7 million. The pumping station would force waters that otherwise would remain in the backwater area back over existing flood control structures to flow down the Mississippi.

In 1984, having received from the United States Army Corps of Engineers an environmental impact statement (EIS) setting forth the ecological effects of the proposed pumping station, Congress authorized funding for the pumping station. In 1986, construction began. Shortly thereafter, construction was stopped due to the passage of the Water Resources Development Act, which required localities to help defray the costs of federal flood control projects. When Congress repealed the cost-sharing provision in 1996 (allowing full federal funding of the project), the Corps began work on a supplemental EIS. In this document, the Corps presented a revamped pump project design that would have substantially less environmental impact than the 1982 design.

In August, 2008, EPA vetoed the Yazoo Project claiming it would harm wetlands. PLF attorneys are challenging EPA’s veto decision on the grounds that the pumping station component of the Yazoo Project is immune from veto because Congress received adequate information on the pumping station more than a year prior to Congress’ fiscal appropriation for the project; and the current version of the Yazoo Project is much more environmentally sensitive than the 1982 version.