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Water Log 28.1, May, 2008

Corps v. EPA: The Battle to Preserve the Yazoo Backwater Area

Stephanie Showalter
Sarah Spigener, 3L, University of Mississippi

The stage is set for a historic showdown between the U.S. Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) over a flood control project in the Mississippi Delta. On March 19, 2008, the EPA released for public comment its proposed determination to prohibit or restrict the use of certain waters in the Yazoo River Basin as disposal sites for dredged and fill material pursuant to its authority under A7404(c) of the Clean Water Act (CWA).1 The Yazoo Pumps project, first authorized by Congress 67 years ago, may soon be dealt a fatal blow from the most unlikely of sources – the Bush Administration.

Yazoo River Basin
The Yazoo River Basin is located within the Mississippi River Alluvial Plain (MSRAP). Bottomland hardwood forest is the dominant ecosystem, which is maintained by regular backwater and other flood events and localized ponding on poorly drained soils.2 Backwater flooding occurs when “high water stages on the Mississippi River create a damming effect, preventing tributary drainage into the mainstem and at times reversing tributary flow upstream.”3 Due to differences in the timing, frequency, and duration of flooding, a wide array of habitats are present in the area. The Mississippi Department of Fisheries, Wildlife, and Parks estimates that “over 240 fish species, 45 species of reptiles and amphibians and 37 species of mussels depend on the river and floodplain system of MSRAP.”4 This list includes the pondberry, listed as endangered under the Endangered Species Act (ESA), and the Louisiana black bear, which is listed as threatened under the ESA.

Bottomland hardwood forests in Mississippi are primarily threatened by agricultural conversion and flood control structures. The forests that remain are increasingly fragmented. Only 15 percent of the Mississippi Delta remains forested.5 The largest segment (100,000 acres) is located within and around the Delta National Forest in the Yazoo Backwater Area.

History of the Yazoo Pumps Project
The Yazoo Backwater Area Project (project) was authorized by the Flood Control Act of 1941. As waters rise on the Mississippi River, it forces the Yazoo River to ‘back up’ which causes a slow moving flood than can remain above flood stage for several months at a time in the lower Yazoo Basin of Mississippi. The Corps estimates that this backwater flooding impacts 1,300 homes within the 100-year flood plain and 316,000 acres of agricultural land within the 100-year flood plain and costs the agricultural industry $7.7 million annually.6 The project would reduce backwater flooding in the Yazoo River Basin through a combination of levees, drainage structures and pumping plants. By 1978 the Corps had completed several components of the project, including flood control gates on Steele Bayou and the Little Sunflower River, the Yazoo Backwater Levee, and the Sunflower River to Steele Bayou Connecting Channel.

The construction of the Yazoo Pumps is the final stage of the project. Construction stalled in 1986 with the passage of the Water Resources De­velopment Act (WRDA). Under the Flood Control Act of 1941, the project was to be fully funded by the federal government. WRDA mandated local cost-sharing for any project started after April 30, 1986. The Mississippi Levee Board and the state of Mississippi could not come up with the funds, but were ultimately saved by Senator Thad Cochran in 1996. An amendment in the WRDA reauthorization bill restored full federal funding for the project and work resumed.

The Yazoo Pumps consist of structural and nonstructural components. First, the Corps intends to construct a 14,000 cfs (cubic feet per second) pumping station at Steele Bayou to maintain the water level at 87.0 feet. The Corps then plans to reforest up to 40,571 acres of agricultural land through the purchase of conservation easements to mitigate the adverse environmental impacts. This price tag for this phase of the project is $220.1 million.

The EPA estimated that the construction and operation of the proposed pumps would “degrade the critical functions and values of approximately 67,000 acres of wetland resources in the Yazoo River Basin.”7 Of those 67,000 acres, approximately 26,300 acres would be modified to such an extent that they would no longer meet the jurisdictional definition of wetland under the CWA. “EPA Region 4 believes these extensive hydrological modifications of wetlands in the Yazoo River Basin could have an unacceptable adverse effect on fisheries and wildlife resources.” How’s this for a statistic? EPA noted that the Corps’ own numbers indicate the adverse impacts from this project are greater than the total impacts associated with the 86,000 projects permitted by the Corps nationwide each year.8

EPA believes the Yazoo Pumps will result in significant adverse impact to extensive areas of forested wetlands and the associated fish and wildlife resources. Not only will the reduction of flooding in the Yazoo Backwater Area destroy valuable and increasingly rare habitat, it is likely to encourage the expansion of agriculture into the area further degrading habitat and water quality. The EPA is also concerned that the Corps’ proposed mitigation (reforestation of 55,600) is impractical and unlikely to restore lost wetland functions. The Corps’ own Final Supplemental Environmental Impact Statement suggests that there may not be enough acres of cleared wetlands with the proper hydrology and soils in the project area to satisfy this goal.9 In addition, the EPA is not convinced that the Corps has sufficiently considered less environmentally damaging alternatives, such as relocation of flood-prone structures, localized flood protection structures, expansion of insurance programs, and conservation easements.10

EPA’s Pending Veto
Under the Clean Water Act, Section 404(c), the EPA may prohibit, restrict, or deny the use of any area as a disposal site “whenever [it] determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.”11 The A7 404(c) process may be initiated by a Regional Administrator, as the Region 4 administrator did on February 1, 2008. This letter laid the foundation for the first EPA veto of a Corps project since 1990. Step two in the A7 404(c) process occurred on March 19, with the publication of the proposed notice. Following the close of the public comment period on May 5, the Regional Administrator may withdraw his proposed determination or prepare a recommended determination. If he chooses to prepare a recommended determination, it will be forwarded to the Assistant Administrator for Water (Headquarters) who will make the final determination.Anchor, end of article

Endnotes
1.   EPA, Proposed Determination to Prohibit, Restrict, or Deny the Specification, or the Use for Specification, of an Area as a Disposal Site; Yazoo River Basin, Issaquena County, MS, 73 Fed. Reg. 14,806 (March 19, 2008).
2.   Mississippi Comprehensive Wildlife Conservation Strategy 2005 – 2015 at 66 (October 2005), http://www.privatelandownernetwork.org/plnlo/mississippicwcs.asp .
3.   Id. at 67.
4.   Id.
5.   EPA Proposed Determination, 73 Fed. Reg. at 14,810.
6.   U.S. Army Corps of Engineers Vicksburg District, Yazoo Backwater Area Reformulation Study: Project Summary and Recommended Plan, available at:
http://www.mvk.usace.army.mil/offices/pp/projects/ybrsummary/QnA.htm
7.   EPA Proposed Determination, 73 Fed Reg at 14,812.
8.   Id
9.   Id. at 14,817.
10. Id. at 14,818.
11. 33 U.S.C. 1344(c).

 


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