A federal court in Mississippi has determined that EPA was justified in its decision to veto the state’s Yazoo Backwater Project, a $220-million floodcontrol project on the Mississippi Delta, because of its potential to destroy a wetland habitat. Bd. of Miss. Levee Comm’rs v. EPA, No. 09-81 (N.D. Miss. 3/28/11). Plaintiffs challenged EPA’s veto in August 2009, arguing that the proposed pumping station fell under an exemption in section 404 of the Clean Water Act governing the discharge of dredge or fill material into U.S. waters and wetlands. They alleged that section 404(r) allows Congress to review the environmental impact of a project and decide to allow it to proceed, thereby negating EPA’s veto power under section 404(c).
The court disagreed, ruling that the exemption did not apply because there was no evidence that Congress considered a formal environmental impact statement. The court also rejected an argument that Congress had authorized the project because it appropriated funds for it in 1985. EPA vetoed the project after it determined it would harm fishery areas and wildlife on thousands of acres of wetlands and other water resources.