Judicial panel does not rule on Yazoo Pump controversy

MISSISSIPPI DELTA — A Mississippi levee board asked a federal appeals court yesterday to revive a $220 million Yazoo River flood control project that was vetoed by the Environmental Protection Agency in 2008 over concerns that it would harm wetlands and wildlife.

A three-judge panel from the 5th U.S. Circuit Court of Appeals in New Orleans didn’t immediately rule after hearing arguments in the case.

The Board of Mississippi Levee Commissioners sued the EPA in 2009 over its veto of the Yazoo Backwater Project. The board contends the proposed pumping station would protect wetlands, farmland and forests north of Vicksburg from flooding when the Mississippi River is high.

“It means real lives, real property,” said board attorney Damien Schiff.

The board says last year’s record-breaking floods along the Mississippi River underscore the need for the project, which was proposed more than three decades ago.

“It’s unfair for the people of the south Delta to be told, ‘You don’t get flood control,’” Schiff said.

The EPA argues the board doesn’t have legal standing to pursue its claims.

“The board should not be permitted to take up the mantle of the (Army) Corps (of Engineers) to defend the Corps’ project when the Corps itself has no wish to do so,” government lawyers wrote in a recent court filing.

U.S. District Judge Sharion Aycock in Aberdeen sided with the EPA and dismissed the lawsuit in March 2011.

Fifth Circuit Judge Catharina Haynes pressed government attorney Maggie Smith to explain what federal officials are doing to protect the area from flooding in the absence of the pumping station. Smith, who represents the EPA and the Corps, said she couldn’t answer that question.

“Last year, the floods were of a monumental proportion,” Smith said. “These types of floods do occur, and the Corps can only do so much.”

The board claims the project, which is designed to reduce backwater flooding in the Yazoo River basin by draining water into the Mississippi River, was exempted from certain Clean Water Act requirements.

A key issue in the case is whether an Environmental Impact Statement for the project was submitted to Congress. The board says it was, pointing to cover letters that were sent to members of Congress in March 1983.

“It was plain error for the district court to assume the (environmental impact statement) was not submitted to Congress,” Schiff said.

But the EPA says the impact statements went missing, and the cover letters don’t specifically mention the Yazoo Backwater Project.

“There was no notice to Congress whatsoever regarding an EIS being submitted for the pumps project,” Smith said.

The board says Congress, through the Flood Control Act of 1941, authorized construction of a flood control project for the Yazoo River and appropriated some funds for it in July 1984. Construction began in 1986 but stopped about a year later when the board couldn’t fully fund it.

Haynes asked Schiff why the board isn’t asking Congress to settle the dispute and decide whether the project should go forward.

“Has anybody asked?” she said.

“If only it were that easy to have Congress act,” Schiff said.

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