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Board of Mississippi Levee Commissioners v. United States Environmental Protection Agency

March 28, 2011

BOARD OF MISSISSIPPI LEVEE COMMISSIONERS PLAINTIFF
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, LISA P. JACKSON, IN HER OFFICIAL CAPACITY AS ADMINISTRATOR; AND PETER S. SILVA, IN HIS CAPACITY AS ASSISTANT ADMINISTRATOR FOR WATER DEFENDANTS
v.
NATIONAL WILDLIFE FEDERATION, MISSISSIPPI WILDLIFE FEDERATION, AND ENVIRONMENTAL DEFENSE FUND INTERVENOR-DEFENDANTS



The opinion of the court was delivered by: Sharion Aycock United States District Judge

MEMORANDUM OPINION

Before the Court is Board of Mississippi Levee Commissioners' Motion for Summary Judgment [31], [32]; Environmental Protection Agency's Cross Motion for Summary Judgment [38]; and National Wildlife Federation, Mississippi Wildlife Federation, and Environmental Defense Fund's Cross Motion for Summary Judgment [41].*fn1 After reviewing the motions, responses, rules, and authorities, the Court finds as follows:

I. LEGAL AND FACTUAL BACKGROUND

This dispute arises from the United States Environmental Protection Agency's ("EPA") decision to veto, under Section 404(c) of the Clean Water Act, 33 U.S.C. § 1251 et seq., the Yazoo Backwater Project. The issue presented in this action, while fairly narrow, appears to be quite novel. The Board of Mississippi Levee Commissioners contends that the EPA's veto was illegal because the Yazoo Backwater Project is exempt from Section 404(c) regulation under Section 404(r) of the Clean Water Act. As such, this case turns on whether the Yazoo Backwater Project falls within Section 404(r)'s limited exemption.

The Yazoo Backwater Project has an extensive history. The Project at its basic level is an effort to control flooding in Mississippi, consisting of various flood control levees, pump stations, drainage channels, and floodgates. The "part" of the Project at issue here concerns the construction of a single pump station to pump water out of the Yazoo Backwater Area during flooding of the Mississippi River. In order to sort out the tangled history of the Project, the Court first discusses the governing statutory law at issue, before turning to the Project's origins and how it evolved out of administrative and legislative processes. Governing Statutory Law

A. The Clean Water Act

General Overview of Section 404 Congress passed the Clean Water Act ("CWA") in 1972 with the goal of "restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a) (1994). The CWA regulates the discharge of dredged or fill material into the navigable waters of the United States through a permit system under Section 404 of the Act.

Id. at § 1344. The Army Corps of Engineers ("Corps") administers this system. Id. at 1344(c), (d). To issue a Section 404 permit, the Corps must ensure that a number of regulatory requirements are met. A dredge or fill action (1) must not "cause or contribute to significant degradation of the waters of the United States," see 40 C.F.R. § 230.10(c) (1999), (2) must not cause or contribute to a water quality violation, see id. at § 230.10(b)(1), and (3) must be in the public interest, see 33 C.F.R. § 320.4(a) (1999). Although the Corps does not issue Section 404 permits to itself for dredge or fill activities that it implements, see 33 C.F.R. § 335.2 (1999), Corps projects must generally comply with EPA's regulatory requirements for dredge and fill permits, commonly referred to as the "404(b)(1) guidelines," see id. at 335.1, 337.6.

EPA's Veto Power under Section 404(c)

Section 404(c) was enacted in 1972, apparently for purposes of striking a compromise between the Corps and the EPA.*fn2 Under Section 404(c), the EPA may prohibit discharges within specified areas when it determines -- after notice and an opportunity for public hearing and consultation with the Corps -- that there would be an "unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife or recreational areas." 33 C.F.R. § 1344(c) (1982). The regulations implementing section 404(c) direct the EPA to consider relevant portions of the 404(b) guidelines when considering a 404(c) action, see 40 C.F.R. § 231.2(e) (1988), as a basic function of section 404(c) is to police application of the guidelines, see 44 Fed. Reg. 58,078 (1979) (preamble).*fn3

Exemption under Section 404(r)

In the 1977 Amendments to the CWA, Congress exempted from Section 404 permit requirements certain federal construction projects. 33 U.S.C. § 1344(r). Section 404(r) provides as follows:

The discharge of dredged or fill material as part of the construction of a Federal project specifically authorized by Congress . . . is not prohibited by or otherwise subject to regulation under this section, or a State program approved under this section . . . (except for effluent standards or prohibitions under § 307 [33 U.S.C. § 1317 (1982)]), if information on the effects of such discharge, including consideration of the guidelines developed under subsection (b)(1) of this section, is included in an environmental impact statement for such project pursuant to the National Environmental Policy Act of 1969 and such environmental impact statement has been submitted to Congress before the actual discharge of dredged or fill material in connection with the construction of such project and prior to either authorization of such project or an appropriation of funds for such construction.

Id. Section 404(r)'s "narrow exemption" was added to the CWA "in recognition of the constitutional principle." See COMMITTEE ON PUBLIC WORKS, 95TH CONGRESS, 2D SESSION, A LEGISLATIVE HISTORY OF THE CLEAN WATER ACT OF 1977 A CONTINUATION OF THE LEGISLATIVE HISTORY OF THE FEDERAL WATER POLLUTION CONTROL ACT, Volume 3 at 524, 288 (Comm. Print 1978). However, Congress "limited the exemption so as to ensure that the Congress will have full information on the impacts of the dredged or fill material associated with the project when it determines whether or not to authorize the project or to appropriate funds for its construction." Id. at 288. Thus, a federal project "specifically authorized" by Congress may be exempt from the EPA's veto authority under Section 404(c) if the requirements of Section 404(r) are met. That is, the Conference Report "emphasized that the failure of a project to meet the[ ] [Section 404(r)] requirements will result in the project having to obtain a section 404 permit." Id.

B. National Environmental Policy Act

The National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321 et seq., is an "essentially procedural" statute, meant to ensure "a fully informed and well-considered decision." Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 558, 98 S. Ct. 1197, 55 L. Ed. 2d 460 (1978). To ensure a well-considered decision, NEPA requires that when an agency proposes a "major Federal action[ ] significantly affecting the quality of the human environment," the agency must prepare and circulate for public review and comment an environmental impact statement ("EIS") that examines the environmental impact of the proposed action and compares the action to other alternatives. 42 U.S.C. § 4332(2)(C).*fn4

An EIS must be detailed, and it must be prepared in consultation with other federal agencies with special expertise relevant to the proposed action's environmental impact. Id. An EIS must explain in detail (1) "the environmental impact of the proposed decision," see id. at § 4332(2)(C)(i); (2) "any adverse environmental effects which cannot be avoided should the proposal be implemented," see id. at § 4332(2)(C)(ii); (3) the "alternatives to the proposed actions," see id. at § 4332(2)(C)(iii); (4) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity," see id. at § 4332(2)(C)(iv); and (5) "any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented," see id. at § 4332(2)(C)(v). Implicit in this statutory requirement "is an understanding that the EIS will discuss the extent to which adverse effects can be avoided." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351-52, 109 S. Ct. 1835, 104 L. Ed. 2d 351 (1989).

With authority derived from NEPA, the Council on Environmental Quality ("CEQ") has been directed to promulgate regulations applicable to all federal regulations.*fn5 See 40 C.F.R. § 1500. Each federal agency must also develop its own regulations, which are to be consistent with the CEQ regulations. Id. at § 1507.3. Such regulations applicable to the Civil Works Program of the Corps are published at 33 C.F.R. § 230 et seq.*fn6

In regards to the preparation of an EIS, CEQ regulations state that an EIS shall be prepared in two stages: a draft stage and a final stage. 40 C.F.R. § 1502.9. The essential process is as follows: A draft EIS "shall" be prepared first, and then it must be published in order to obtain comments from the public and from the appropriate federal, state, and local agencies. Following a public comment period, a final EIS "shall" be prepared. The final EIS must respond to all comments received on the draft EIS. In response to comments received and in preparing the final EIS, the agency may modify the alternatives, information, or analyses contained in the draft EIS. See id. at § 1503; see also 33 C.F.R. § 230.19(d). Further, an agency can requests comments on a final EIS before a decision is finally made. See id. at § 1503.1(b).

In order to complete the required NEPA and EIS process, the CEQ and Corps regulations both require the preparation of a Record of Decision ("ROD"). 40 C.F.R. § 1505.2 ("At the time of its decision (§ 1506.10) or, if appropriate, its recommendation to Congress, each agency shall prepare a concise public record of decision."); 33 C.F.R. § 230.14 ("A record of decision shall be prepared by the district commander . . . for the signature of the final decisionmaker as prescribed by applicable Corps regulations."). The ROD is a statement of the agency's final decision, and it should identify all alternatives considered and specify the alternative(s) deemed to be environmentally preferable. 40 C.F.R. § 1505.2. The agency should explain the rationale for its decision concerning which alternative to implement. Id. The agency also must state whether all practicable means to avoid or minimize environmental regulations 40 CFR Parts 1500 through 1508, November 29, 1978, in accordance with 40 CFR 1507.3, and is intended to be used only in conjunction with the CEQ regulations. Whenever the guidance in this regulation is unclear or not specific the reader is referred to the CEQ regulations." 33 C.F.R. § 230.1 harm have been adopted in the decision, and if not, why they were not. Id. The CEQ and NEPA regulations require an agency to discuss possible mitigation measures in the EIS and in the ROD. See id. at §§ 1508.25(b)(3), 1502.14(f), 1502.16(h), 1505.2(c).

Yazoo Backwater Project History

A. The Flood Control Act of 1941

The history of the Yazoo Backwater Project actually starts with a predecessor of the Flood Control Act ("FCA") of 1941: the FCA of 1928, which was passed in response to the Mississippi Flood of 1927. See FLOOD CONTROL ACT OF 1928, 70th Cong., Sess. 1, Ch. 596 (May 15, 1928). The 1928 FCA authorized, through the Mississippi River and Tributaries Project, the construction of a system of river levees. The FCA of 1928 also funded the construction of diversion floodways that would route off some of the Mississippi floodwaters before reaching the River's lower reaches.

In March 1941, the Mississippi River Commission ("MRC") issued a report, recommending that the Yazoo Backwater Area be protected from floods by extending the Mississippi River levee to and along the west bank of the Yazoo. See FLOOD CONTROL ON THE LOWER MISSISSIPPI RIVER, H. Doc. 77-359 at 38 (1941). The report also cautioned that this levee would introduce a number of drainage problems, especially on the Sunflower River. Due to this, the MRC studied and proposed three different plans to remedy the drainage problem. Plan "A" considered placing levees on both banks of the Sunflower River. Plan "B" called for an extension of the main river east bank levee to a junction with a previously-authorized level along the west bank of the Yazoo River. The last plan, Plan "C," was similar to Plan "B," yet it also added a measure to increase the height of the levee to fifty-six and a half feet. Plans "B" and "C" also both contemplated that lands within the backwater area below the ninety-foot contour would be used for sump storage. According to the report, this ninety-foot contour was chosen because lands below that elevation are "not suited to agriculture" due to frequent flooding. As such, the report suggested utilizing these flood-prone lands to store floodwater. However, lands above the ninety-foot contour would be protected by a series of pumps "to prevent the sump level from exceeding 90 feet."

As a continuing part of its generalized flood control program, Congress passed the 1941 FCA, authorizing the Corps to spend $12 million to construct a "project for flood control of the Yazoo River," including "combinations of reservoirs, levees, and channel improvements," in accordance with the Commission's March 1941 report. FLOOD CONTROL ACT OF 1941 ยง 3(b), Pub. L. 77-288, 55 Stat. 639 (Aug. 18, 1941). Of the three plans discussed in the report, the 1941 FCA authorized Plan "C." Accordingly, the plan authorized under the FCA is for a levee system and a system ...


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