NEW ORLEANS — A federal appeals court panel sided yesterday with the Environmental Protection Agency over its 2008 veto of a $220 million flood control project near the Yazoo River in the south Mississippi Delta.
The Board of Mississippi Levee Commissioners sued the EPA in 2009 after the agency vetoed the Yazoo Backwater Project, which has been in the works for decades. The board said the proposed pumping station would protect wetlands, farms and forests north of Vicksburg from flooding when the Mississippi River is high.
U.S. District Judge Sharion Aycock in Aberdeen sided with the EPA and dismissed the lawsuit last year. A three-judge panel from the 5th U.S. Circuit Court of Appeals in New Orleans upheld that decision yesterday.
Damien M. Schiff, a Pacific Legal Foundation attorney representing the board, said he must talk to levee commissioners before deciding whether to appeal. The board’s options would be to ask the entire 5th Circuit Court for a rehearing or to ask the U.S. Supreme Court to hear the case.
If the ruling stands, “it’s unfortunate that the people of the south Mississippi Delta won’t get the flood protection that Congress has promised them for 75 years,” Schiff said.
Congress authorized the Mississippi Delta project in 1941 but didn’t fully fund it. The EPA vetoed the Yazoo pump aspect of the project in August 2008, saying it would destroy wetlands, water quality and habitat for threatened species. The lawsuit challenged the agency’s authority to stop the project.
The U.S. Army Corps of Engineers has taken steps to control flooding upstream on the Mississippi River, and that only made flooding worse in the Yazoo River Basin, Schiff has said. The levee board has said the pumps were the last integrated element of the larger flood control system and were needed to pump out water trapped by other flood control measures.
The board has said that about 900,000 acres and 1,000 residential structures were affected.
The lawsuit also claimed EPA’s veto is illegal because the project was approved by Congress before the agency was given veto power under the Clean Water Act in 1977.
EPA officials have said in the past that the project doesn’t meet all the requirements to proceed under the Clean Water Act, regardless of when it was authorized.