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Levee Board sues EPA on Yazoo Project

Mississippi’s south Delta region has been likened to a tub that, when full, is incapable of draining. As a result, homeowners and farmers in the region are subject to frequent floods and the resulting costs, both financial and emotional.

The impact of the flooding is startling. In 2008, a total of 344,000 acres (121,000 acres of farmland) flooded in the south Delta. This year, nearly 400,000 acres (152,000 acres of farmland) went underwater.

While crops can be replanted once floodwaters recede, the practice takes a heavy toll on pocketbooks and yield.

It has been long known that the Yazoo Backwater Project — which includes a pumping station — would alleviate the region’s flooding. However, despite decades of planning and government promises, the project remains on the drawing board. And after a controversial EPA veto of the project last summer, it may stay there.

For more, see

Currently, hope for the project largely rides on a lawsuit filed against the EPA by the Mississippi Levee Board. On Aug. 11, project proponents held a press conference outside the Greenville, Miss., courthouse to explain the suit.

A day later, Peter Nimrod, the Mississippi Levee Board’s chief engineer, spoke with Delta Farm Press on the suit’s origins, its necessity, and EPA’s faulty interpretation of the Clean Water Act. Among his comments:

A brief history of the Yazoo Backwater Project…

“The (U.S. Army) Corps of Engineers came out with a final report on the Yazoo Backwater Project in November of 2007. The following February we found out the EPA was considering a veto of the project under their authority in section 404 (c) of the Clean Water Act.

“We repeatedly told EPA we thought the project was exempt from such a veto by section 404 (r) of the Clean Water Act. For the most part, they ignored us.

“On Aug. 31, 2008, EPA actually vetoed the project. They said ‘We considered your 404 (r) argument but we couldn’t find proof that the 1982 EIS (Environmental Impact Statement) was ever officially submitted to Congress.’ That was the one step they said we didn’t have for the 404 (r) exemption.

“A few days later, on Sept. 3, through a FOIA request, we received a package from the Corps of Engineers. In the middle of it were several letters dated March 28, 1983, clearly transmitting the 1982 EIS to Congress for review.

“So, the one step EPA said we didn’t have for a 404 (r) exemption had been done. Here it is. Here’s the smoking gun.

“But it was too late. They’d already vetoed the project (and wouldn’t revisit the decision).

“We contacted the Pacific Legal Foundation and they took on our case. Yesterday, we announced we’d file a complaint in the Northern District of Mississippi, federal court, challenging the EPA on this. We’re asking the judge to look at the record, look at the evidence and determine if this project falls under 404 (r). If it does that means the 404 (c) veto is null and void.”

On the Pacific Legal Foundation…

“The Pacific Legal Foundation is non-profit and tax exempt. They’re on the side of landowners when it comes to wetland issues. They’re one of the oldest and most successful public interest legal organizations.

“They fight for limited government, property rights, individual rights and a balanced approach to environmental protection.

“They love this case because it hits on what they’re after. The project is really good for the environment, but the EPA says it isn’t. (The legal foundation) knows the truth.

“In this case, the government is too big for its britches and is pushing us around a bit. (The foundation) is helping us out by taking this on.”

On the press conference…

“We held the press conference in Greenville right outside the federal courthouse.

“Bill Newsom, president of the Sharkey County Board of Supervisors, went through some statistics on the high-water event we had this year. … He explained that agriculture is the backbone of the south Delta. If this cycle of flooding continues it’ll break the farmers’ backs. Plus, it’ll break the backs of counties because the tax base will dwindle.

“Clay Adcock, a farmer from around Holly Bluff, Miss., spoke on the hardships of farming while being subject to the backwater flooding. The pumps would help not only him and future generations but the environment. Trees and wildlife are struggling with these backwater flooding events.

“These are things we’ve been saying for a long time.”

Why did the Mississippi Levee Board bring the case instead of an affected citizen?

“The Mississippi Levee Board is a governmental agency that is sponsor of the Yazoo Backwater Project. We look out for the community’s interest.

“The project will have a great influence on the Mississippi Levee District but will also help the Yazoo Mississippi Delta District — there are actually two levee boards in the state. The project will have a profound effect on both districts for both flood protection and helping the environment.

“We took the case on because the folks in the south Delta can’t take on the federal government. Any time you’re fighting the federal government you’re fighting big money.”

The next step? How long does EPA have to respond?

“What I’ve been told is the EPA has about 60 days to respond. Other people might intervene, like environmental groups. There may be a bunch of briefs filed and back-and-forth correspondence.

“We’re thinking we won’t get a hearing before a judge until 2010. Hopefully, sometime next year, a judge will have looked at all the evidence and briefs and make a ruling on whether the project is exempt from the EPA veto.”

Judges often look for a way to split the baby. Since you’re an engineer, do you see any way to do that with this project?

“The way we’ve set (the lawsuit) up is a yes-or-no deal. Simply, does the project fall under 404 (r), or not?

“If the answer is ‘yes,’ the EPA veto is null and void and we’ll move forward with the project. If the answer is ‘no,’ then the project is indeed vetoed.

“The residents of the south Delta have already compromised. When we first talked about the pumping plant it was to be a 25,000 cubic feet per second pump and it’d cut on at 80 feet. Since then, we’ve given up 7 feet of flood protection.

“In the late 1990s, the affected residents said, ‘the environmentalists want us to go up higher on the pumping elevation and a smaller pump. We can live with a 14,000 cubic feet per second pump to be turned on/off at 87 feet.’

“So, we gave up 7 feet of protection and have a much smaller pump. That means more flooding and more land that isn’t protected.

“We thought that was a great compromise. We were going to reforest 55,000 acres of existing and agricultural land into hardwood trees. In return, we’d have flood protection for the areas above that.”

Any response yet?

“Nothing, at all. I have read articles saying EPA would review the complaint.

“Our congressional delegation is completely behind us and supportive of the Yazoo Backwater Project. In fact, Sen. (Thad) Cochran and Sen. (Roger) Wicker have co-written letters to EPA saying the project is exempt because of 404 (r). EPA ignored them.”

(For more, see

“At this late date, our hands were tied. All we could do is file a lawsuit against EPA to get the project up and running.”

How long have you been working with the Pacific Legal Foundation on the case? How did you hook up with them?

“The Mississippi Levee Board has an attorney. For the last four or five years, we’ve been working with other specialized lawyers, as well — environmental justice, endangered species and environmental law. We thought all our bases had been covered when the Corps Final Report came out in 2007.

“The Levee Board just didn’t know if it could handle the expense of suing EPA alone. We don’t have a lot of money and didn’t want to raise taxes on landowners in the district to finance a suit.

“One of the environmental specialist lawyers we’d worked with suggested the Pacific Legal Foundation. She’d worked with them previously and we began conversing with the foundation a few months ago.

“They reviewed all the information — the 1982 EIS, the 2007 EIS, all our letters back-and-forth to EPA, everything — and that was a lot to digest. Finally, the foundation’s board voted to take our case on.”

What put a burr under EPA’s saddle regarding the project?

“If you look at the Yazoo Backwater Project area, within a 200-mile radius — including neighboring states — there are 22 federally-funded pumping plants just like the one we want to build. Those pumps were built decades ago.

“The Yazoo Backwater Project was authorized in 1941. The Corps finished and submitted the EIS for the pumping station in the early 1980s and construction began in 1986.

“As the environmentalists grew in strength, cost-sharing was put on our project. That killed it — there’s no way the Levee Board could afford 25 percent of a $200 million project. For 10 years we tried to figure out a way to get the cost-share off.

“Finally, in 1996, Sen. Cochran put language in a bill defining when construction begins and that took cost-sharing off the project.

“By that time, the environmental community had gotten even stronger and more forceful. We got wrapped around the axle because we hadn’t gotten our pumping plant built early enough.”

Anything else?

“This is a great, model project. It’s a win/win for everyone and everything. It’ll not only provide protection for farmers and residences but will also be a positive enhancement for all environmental resource categories: wetlands, terrestrial benefits, aquatic and duck habitat, all the things you’d want.

“If we don’t build the project, the environment will lose. That’s the reality.”

For more on the Yazoo Backwater Project, see


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