The Environmental Protection Agency lacks the authority to veto the Yazoo Backwater Pumping Project, the long-awaited solution for relieving chronic flooding problems in the lower Mississippi Delta.
That’s the finding of a legal opinion written by the Congressional Research Service that was requested by Mississippi Senators Thad Cochran and Roger Wicker and conveyed to EPA Administrator Steven Johnson.
Earlier this year, EPA officials initiated a proceeding under Section 404(c) of the Clean Water Act, claiming the Yazoo project would have “unacceptable adverse impacts” on fish and wildlife habitat. The Agency said the provision gave it authority to force the Corps of Engineers to discontinue the project.
But Robert Metz, an attorney with the Congressional Research Service, said the Section 404(c) process cited by EPA “cannot be applied to a federal project, like the Yazoo Backwater Project that conforms to Section 404(r).” (Section 404(r) provides exemptions for projects approved by Congress.)
“We continue to be very concerned about the prospect of the EPA using Section 404(c) of the Clean Water Act to “veto” the Yazoo Backwater Project in Mississippi,” Cochran and Wicker said in a letter. “This important project has been structured to offer flood damage protection and significant environment enhancements to the Mississippi South Delta.”
The letter said the potential administrative nullification of a congressionally authorized project raises serious legal and policy issues. It cites the Congressional Research Service finding that Section 404(c) cannot be applied to a federal project that conforms to Section 404(r).
“We ask that you carefully consider the legal and policy consequences of improperly applying Section 404(c) according to diligent analysis of the relevant statute,” the letter said. “We expect you will give this matter the serious consideration it deserves before EPA takes any further action.”
Leaders of the flood control efforts in the South Delta said they were grateful for the stance taken by Republicans Cochran and Wicker in defying the Bush administration’s effort to block the backwater pump project.
“The Mississippi Levee Board is grateful for the leadership of our Congressional delegation in support of the Yazoo Backwater Project,” said Laurance Carter, Sharkey County board member for the Mississippi Levee Board. “We have told EPA it has no authority to veto the Project, and we are gratified that the Congressional Research Service and our Senators agree with that legal position.”
The Vicksburg District of the U.S. Army Corps of Engineers approved the latest recommended plan for the Yazoo Backwater Project in November 2007. The $220 million Yazoo Backwater Project has been modified several times try to satisfy the objections of environmental groups such as the Sierra Club.
The latest plan calls for a smaller pumping plant that would be turned on when water in the Yazoo backwater area of the South Delta reaches an elevation of 87 feet above sea level, rather than the 80-foot level in the original proposal. The new plans means 200,000 acres would be under water when the pumping station would be placed in operation.
South Delta residents don’t like the new plan, but they’ve been willing to try to live with it to get the pumping station built and in operation. That’s in contrast to the environmental groups whose proposals have included having the federal government purchase most of the land in South Delta and relocate the current residents.
“We are pleased that our two U.S. Senators have stood up for the Delta and hopefully will cause this federal agency to sit down and discuss practical solutions as opposed to simply telling the Delta what they are against,” said Al Rankins, chairman of the Delta Council’s Flood Control Committee and a Washington County supervisor.
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