Yazoo Backwater Project Generates Litigation

Yesterday's Delta Farm Press alerted me to a new lawsuit filed by the Mississippi Levee Board Commissioners against the E.P.A. The lawsuit seeks to overturn the agency's recent veto under section 404 of the Clean Water Act of the U.S. Army Corps of Engineer's flood control project in the Mississippi Delta, commonly called the Yazoo Backwater Project. Basically, the project involves installing pumping stations to alleviate flooding that regularly takes place in the Yazoo basin. You can read more about the project here, particularly if you are having issues with insomnia. A shorter explanation of the project can be found here.

Here are the basic facts of the case. The Yazoo Backwater Project was originally authorized by Congress in 1941. The Project was multi-facted, and included floodwalls and other traditional flood-control structures. The capston of the Project was a pumping system which bascially lifts water out of the Yazoo Basin. Because of funding problems, the pumping phase of the project was delayed. In the meantime, the E.P.A. got word, and to make a long story short, vetoed the project pursuant to their authority found in section 404(c) of the Clean Water Act. The E.P.A. contends that the pumping will degrade wetlands found in the Yazoo Basin. (If you are curious as to why the E.P.A. can regulate land under the Clean Water Act, the best advice I can give you is to go to law school, where law professors regularly attempt to explain this dichotomy.)

The lawsuit (you can read the press release and the complaint here) seeks declaratory and injuctive relief. The plaintiffs are seeking an order from the court which declares that the Project is exempt from E.P.A. veto under section 404(r) of the Clean Water Act. Section 404(r) removes veto authority on projects that are specifically authorized by Congress. The Levee Board also seeks to enjoin the E.P.A from doing anything to enforce its 404(c) veto of the project. Lastly, the lawsuit asserts a cause of action of violations of the Administrative Procedure Act and the Clean Water Act. The claim here is that the Corps did everything it was supposed to do under the Clean Water Act, NEPA, and any other applicable federal law, and yet the E.P.A. still vetoed the project, making E.P.A.'s decision "arbitrary, capricious, and contrary to law." Those words are music to the administrative lawyer's ears.

My last comment on this lawsuit is the choice of the plaintiff, which I find interesting. I do not totally understand why the Mississippi Levee Board was chosen as the plaintiff over a landowner or resident of the Yazoo Basin that has been affected by flooding which the Project seeks to alleviate. While I believe that the Levee Board still has standing under Friends of the Earth v. Laidlaw, I agree with Justice Scalia in his Lujan v. Defenders of Wildlife opinions that finding an individual who is affected shouldn't be that hard.

The Plaintiff is represented by the Pacific Legal Foundation.