Yazoo Mississippi Backwater Area Pumps Project: U.S. Environmental Protection Agency Reinstates 404 Veto | Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.

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The United States Environmental Protection Agency (“EPA”) overturned an earlier decision and reinstated a veto under Section 404 of the Clean Water Act of the Yazoo Backwater Area Pumps Project (“Project”).

Earth Justice had previously filed a declaratory injunction against the EPA in the US District Court of Columbia for alleging its veto violated Section 404 of the Clean Water Act.

The project is a United States Army Corps of Engineers (“Corps”) construction project aimed at addressing flooding problems in an area between the Mississippi and Yazoo rivers in western central Mississippi. This area was often referred to as the “Yazoo Backwater Area” (“Area”).

One component of the project would include a pumping station that would transport surface water out of the area during flood events on the Mississippi.

The proposed project has a story that was originally conceived in 1941. A dike was completed in 1978. However, a remaining part of the project was the installation of pumps. Proponents of the project argued that the pumps are critical to draining rainfall in the delta that is trapped on the land side of the dam and drainage structures.

In 2008, the EPA determined that the project would adversely affect at least 67,000 acres of wetlands and other bodies of water in the United States. Pursuant to Section 404 of the Clean Water Act, it vetoed the project based on its conclusion that such impacts would result in unacceptable negative effects on fishing areas and wildlife.

Section 404 (c) of the Clean Water Act empowers the EPA to prohibit, restrict, or deny the designation of a defined area in United States waters (including wetlands) as a landfill for the discharge of dredging or filler material whenever they do so determines, after public notice, an opportunity for a public hearing that such discharge into United States waters will have an unacceptable adverse effect on:

• Municipal water supply;
• Mussel beds and fishing areas (including spawning and breeding areas);
• Wildlife; or
• Recreation areas

The EPA had initiated a Section 404 (c) review of the project as the construction would involve activities that are subject to the jurisdiction of the Clean Water Act.

The project had been revived during the Trump administration. In 2020, the Vicksburg Corps District Commander stated:

. . . Recurrent flooding has indicated that the Yazoo Backwater Area Pump Project needs to be completed. . .

The Corps also argued that the project’s environmental impact on wetlands and aquatic resources would be significantly less than originally calculated.

Even so, the EPA’s 2008 veto (also known as the “Final Decision”) was still in effect. However, the EPO Region 4 Office wrote to the Corps on November 30, 2020, stating that the revised project was not subject to the previous 2008 final decision. This was based on the view of the federal authority that the project described in the draft of the Corps’ supplementary environmental impact statement had a number of differences from the 2008 version.

Earthjustice argued in its Jan. 12 complaint that the EPA did in fact lift the veto of the 2008 Clean Water Act. She further argued that such a revocation:

• Violates the express provisions of the agency’s own veto
• Violation of the Clean Water Act
• Neglected basic principles of administrative law
• Did not solicit public comment or provide a rational explanation for the reversal

EPA November 17, 2021 veto states that three paragraphs were incorrect in a letter dated November 30, 2020 providing comments on the draft supplementary environmental impact statement (“2002 DSEIS”) for the project.

The Federal Agency partially states:

The letter of November 30, 2020 describes inaccurately the scope of the EPA’s FD 2008. Based on a comprehensive assessment of the FD 2008 and its records, the Final Supplementary Environmental Impact Statement 2007 (FSEIS 2007) and the Final Supplementary Environmental Impact Statement 2020, the Agency has concluded that the proposed 2020 Plan for the Yazoo Pump Project 2007 FSEIS Plan 5 and includes discharges into the geographic area covered by the FD.

As a result, the EPA concludes that Plan 2020 for the project is prohibited by FD 2008. A detailed analysis is attached to the EPO letter on this matter.

The EPA also notes in the November 17 letter that it is:

. . . concerned about the severe impact of flooding on the people and economy of the Lower Mississippi Delta.

Appendix A to the November 17 letter provides a detailed discussion of its re-examination and includes the following components:

• Discussion of Section 404 of the Clean Water Act
• 2007 Yazoo pump project
  • Test method under Section 404 (c) of the EPA
  • 2008 FD results
  • Compensation reduction and reforestation
  • Water management function
• Corps efforts to advance Plan 5 ahead of the 2020 Environmental Impact Statement process
• Yazoo pump project 2020
  • Compensation reduction and reforestation
  • Water management function
• Letter from the EPA dated November 30, 2020
• Litigation and EPA review of FD 2008, FSEIS 2007 and FSEIS 2020 records
• Review of portions of the November 30, 2020 letter by the EPA
  • The 2020 project is located within the “defined area” which is subject to the ban in the FD 2008
  • Discharges from the Yazoo pump project 2020 are prohibited by the FD 2008

A copy of the letter can be downloaded here.

https://www.jdsupra.com/legalnews/yazoo-mississippi-backwater-area-pumps-1618484/