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Comments on Yazoo Backwater Pumps. EPA Docket Number:
EPA-R04-OW-2008-0179.

May 5, 2008

Sirs:

The following comments are in response to your public notice published
in the March 19, 2008, Federal Register, concerning your proposed 404c
of the Yazoo Backwater Pumps, a civil works project, proposed by the
Vicksburg District, Corp of Engineers.

**General Comments:**

I take exception to statements made in the public notice published in
the Federal Register. The comments make it appear that EPA is a
"long-suffering martyr" constantly trying to make a point to which no
one listen. Wrong! That is not true. The Corps constantly revised the
proposed project in order to make it more acceptable to EPA and other
resource and regulatory agencies. Unfortunately, it is obvious from
reading the historical record that EPA has never had any intention of
approving a project that includes the structural component known as the
backwater pumps. It is doubtful that the project would ever meet the
standard set by EPA. The bar has continually been raised to point that
even record-breaking high jumpers could not make.

It has been said that a veto of this project is purely political. There
is evidence that points to this. Former EPA administrators have
indicated that the project would be approved. The veto of the project
was moved from Region IV that regulates Mississippi to Region VI, which
does not have jurisdiction over this state. It could be said that the
veto would be a conflict of interest for Region IV's regional
administrator, since he was previously Mississippi Department of
Environmental Quality's head. However, the current Region IV
administrator is a professional. While I do not know personally, I do
doubt that he would allow personal feelings to override a professional
decision. I can see a person recusing himself from making a decision
(veto) that is not appropriate. When I was a professional in the
regulatory arena, I was told by superiors that if the decision was
contrary to my professional determination, that I should let superiors
sign the document. In other words, I was not to sign something to which
I could not professionally agree. Is this what happened with the switch
of regional offices? Was what he was asked to do totally outside his
professional beliefs? Perception is many times more important than
truth. The perception is that this project is not being treated in an
honest manner.

Comments made by the Corps add light to this perception. Since, 1982,
there has been an 80% reduction in adverse wetland effects. Construction
was allowed to begin at the disposal site, the site on which EPA is now
considering using it veto, in 1986. It is incredible that EPA would
allow hundreds of thousands of dollars to be spent on this project when
it was considered to be much more environmentally damaging that it is
now and consider a veto 26 years later. I forget the martyr complex that
EPA appears to have.

EPA allowed locals to compromise, compromise, and compromise again while
giving the impression that an acceptable project could be found. The
size of the pump station has continually been down-sized. No, contrary
to popular belief, the pumps are not that large compared to the size
area they are to serve. The elevation at which the pumps would be
activated has continually been increased. The water elevation which
would be maintained within Steele Bayou during low water periods would
be increased, providing water for fishery resources. Nothing has proved
to be satisfactory to EPA and other pump opponents. EPA constantly
mentions nonstructural alternatives. EPA fails to understand the
regulatory meaning of the word "practicable", which takes into account
logistics, economics, and technology. Additional comments will be
provided on this subject later, but the point I which to make is that
nonstructural alternatives that EPA specifically wants to be considered,
i.e., ring levees around structures, are not practicable, not in the
terms of logistics, economics, or technology. To consider ring levees
practicable is totally ridiculous. Any common sense person known
that---obviously EPA's consultant who considers this a practicable
alternative does not have common sense. He has admitted on more than one
occasion that he is familiar with the backwater area and has not spent
time there learning the truth about the feasibility of ring levees in
that area.

Comments concerning the impacts of pumping the water from the backwater
area are very misleading. It appears from the Federal Register Public
Notice that the pumps will simply suck the water from behind the Steele
Bayou gates. Quite the contrary, the pumps would remove the water slower
than when the "head" on the gates becomes increasingly higher than the
riverside of the gates. Turbidity from the open gates would probably be
as great or greater than from the pumps. By the time the pumps are
turned on, the turbidity levels within the water should be at ambient
levels. The water pumped from the backwater area should be no more
turbid that it was when it entered it inlet. No impacts should be felt
downstream of the pumps. At the point of the public hearing, the figure
quoted was that the increase in Mississippi River levels would amount to
one inch\-\--less than 0.10 foot.

To veto this disposal site, when most other areas encircled by levees
use pumps to lower water levels within the levees must be considered to
be arbitrary and capricious. Information contained within the public
notice is designed to shed the most unfavorable light on this project as
possible. No positive impacts were mentioned or seem to have been
considered. Courts give much latitude to Federal agencies, but they do
not give agencies a completely free reign. EPA should reconsider their
position on this project and look at it objectively---get rid of the
bias.

Below are comments on the individual points for which additional
information was requested in the Federal Register.

**(1) The potential for additional violations of State Water Quality
Standards to occur in the Yazoo River Basin if the pumping station is
built;**

As best I could determine the "additional violations" gives reference to
streams within the Yazoo Basin being listed on the 303(d) list for
impaired streams. Based upon previous experience and previous
discussions with MDEQ personnel, some streams in MS were listed on the
303(d) list for reasons that may not have quite been accurate. Streams
were not necessarily tested for the reason for which they were listed.
Again based upon previous experience, the streams may not justify the
listing. One specific reason for several listings was low dissolved
oxygen. The Corps' proposal includes increasing water levels within the
basin during summer months when DO levels are generally at their lowest.
Perhaps the proposed project would reduce violations of the 303(d)
stream list.

Generally, the state sets water quality standards its own water quality
standards and issues the water quality certification for Section 404
permits. No where does EPA mentioned the state's position on water
quality for this particular project. I believe that the state of MS was
prepared to issue the certification. Prior to EPA's final decision on a
veto, the state of MS should be allowed to take a position on water
quality.

**(2) Additional information about low-income and minority populations
in the Yazoo Backwater Area and, in the context of Executive Order
12898, the disproportionately high adverse human health or environmental
effects, if any, on these populations if EPA makes a final determination
to prohibit or restrict the use of certain waters in the Yazoo River
Basin as disposal sites for dredged or fill material in connection with
the project**;

"Executive Order 12898 requires that, to the greatest extent practicable
\[available and capable of being done after taking into consideration
cost, existing technology, and logistics in light of overall project
purposes\] and permitted by law, each Federal agency must make achieving
environmental justice part of its mission. Executive Order 12898
provides that each federal agency conduct its programs, policies, and
activities that substantially affect human health or the environment in
a manner that ensures that such programs, policies and activities do not
have the effect of excluding persons (including populations) from
participation in, denying persons (including populations) to
discrimination under such programs, policies, and activities because of
their race, color, or national origin."

EPA has raised its EJ bar so high that it is impossible to satisfy their
concerns. The Corps has obviously used a myriad of means to gather
information necessary to meet and exceed the requirements of Executive
Order 12898. At the beginning the reformulation study, the Corps sought
public participation to the extent possible. Consensus Building Groups,
consisting of stakeholders and other "interested parties" met to attempt
to develop an alternative plan that might be more suitable. What
happened? The environmental community boycotted all but the first
meeting. A public town meeting was held to both gather and disseminate
information. The audience, for the most part, was locals who make up the
pertinent EJ populations. Despite the multitude of information provided
by those who spoke at the hearing and those who submitted formal letters
for the record, EPA requested that the Corps provide additional analysis
and documentation of public involvement and EJ consideration.

To satisfy EPA, a consulting firm was retained to review everything that
had been done to date. The consulting firm developed its plan to
interview as many of the "principal participants" as it could. Guess
what, these were the same people who attended the aforementioned public
town meeting. Information gathered from interviews included in Volume 3,
Appendix 8 of the 2007 Reformulation Report. Personally, I believe the
comments made at the town meeting provided more EJ information than
these interviews. Was EPA satisfied? NO! The March 19^th^ Federal
Register notice announcing EPA's proposed veto of the proposed pump
station, EPA again states that it does not believe the Corps has fully
analyzed the impact of this project on potential economic development in
the EJ community. EPA goes on to state that it is soliciting information
about low-income and minority populations in the backwater area, the
disproportionately high adverse human health or environmental effect on
these populations if EPA follows through with the decision that it has
already made to veto the pumps. Remember, I said earlier that EPA has
put the bar so high that no one can possibly satisfy their ever changing
information requests.

The two counties that would primarily be affected by the proposed
pumping plant are Issaquena and Sharkey. Unemployment levels within
these counties are traditionally some of the highest in Mississippi,
which has 82 counties. According to information provided on Mississippi
Employment Security Commission's internet site, February 2008
unemployment rates for Issaquena County was 10.8 (75^th^ of 82) and for
Sharkey County, 10.9 (78^th^ of 82). Mississippi's unemployment rate for
this period was 5.9, with the United States rate of 5.2. For the last
five years, February unemployment rates for Issaquena, Sharkey,
Mississippi, and the Unites States in February are shown below:

**[Year]{.underline} [Issaquena]{.underline} [Sharkey]{.underline}**
[MS]{.underline} **[US]{.underline}**

2007 12.4 13.5 6.8 4.9

2006 14.7 13.1 7.3 5.1

2005\* 18.0 16.3 7.2 5.8

2004 13.2 13.1 5.5 6.0

2003 14.1 13.5 6.4 6.4

\*2005 reflects the Hurricane Katrina catastrophe. These unemployment
figures do not represent years in which significant flood events
occurred.

Agriculture/Aquaculture provides the primary employment opportunities
within Issaquena and Sharkey counties. As everyone knows, agriculture as
everyone knows is a seasonal operation. Larger numbers of workers are
needed especially during the planting and the harvesting season. Many
times, farm owners will not continue to employ farm workers during
winter months. These low-income, primarily minority, workers not only
face a loss of income on an annual basis, but they also face a loss of
income when floodwaters prevent normal pre-planting and planting
activities. With no income, how are these workers going to move
themselves and their families from homes that are also flooding?

Housing is another concern facing those who must leave their homes due
to flooding. Many of those leaving their flooding homes would move to
the nearest city that could provide them housing. It has been documented
over and over in the *Vicksburg Evening Post* that housing is a major
problem for those in the Vicksburg/Warren County area, the likely
location for those fleeing flooding. Vicksburg's Mayor has made
avoidable housing one of his top priorities. While some rental houses
and apartments are available, are they really affordable for those with
low incomes? Those fleeing backwater flooding must also compete with
those fleeing Mississippi River and Yazoo River flooding for available
housing. Apartments fill quickly. Many seek rental houses. Storage
facilities for home contents are also at a premium. EPA's proposed veto
of the pumps would make sure that the hardships faced by those in the
Yazoo Backwater Area would continue as usual. An environmental justice
analysis has to document the harm that would be done by a veto. With the
pumps in place, flooding will continue, but not to the extent that it
does now. Low-income and minority populations in the backwater area
would certainly benefit by pump construction.

If floodwaters are not threatening these workers' homes, they may cover
the road to their homes. One specific lady must park her car, get in a
boat and ride to a place safe enough to get out of the boat and into a
car to complete her trip. The return trip is the same. Consider the
difficulty these people go through just trying to do everyday things.
School children face these same dilemmas. Will they be required to
temporarily move to another school district, or will they be required to
boat to meet the school bus. What about health problems? How would
ambulances or health professionals, such as home health nurses, get to
those who live on flooded roads? What is their chance of survival in a
medical emergency?

These counties are two of the poorest counties in the state of
Mississippi, which itself is know as one of the poorest states. Few
residents of these counties would fail to meet the EJ concerns for
minorities and low-income. Many of the low-income population are
elderly, who are on fixed incomes. Regulated activities associated with
construction and operation for the pump plant, as proposed, will have
not cause EJ concerns. The employment opportunities of the residents of
these counties may increase with the construction of the pumps. The
possibility of an improved economic outlook for low-income and minority
communities will certainly be better with the pumps in place than it
would should the project be vetoed. With EPA's promised veto, I don't
believe that anyone would risk their capital in an area where flooding
is a constant threat.

The following comments on EJ are based upon my knowledge of the impacted
areas. I grew up in Issaquena County and lived there during the 1973
flood. I continue to go home there at least once a week. So, I still
consider myself one of the locals. The major reason that I am interested
in the construction of the pumps is that my 87-year-old mother continues
to live there. At the moment, her thoughts are filled with fear that,
for the second time, she may have to leave the house that she and my dad
built in the 1950's. My family has worked hard to protect both the land
and our family home. My mom should not have to worry about her home
flooding and about repairing her home because water got in it again.
True environmental justice would not allow it.

During the 1973 flood, many homeowners decided to build ring levees
around their homes. \[The term "homeowners" is used generically to mean
actual homeowners, renters, and any other structure used for shelter.\]
I know of no home saved from flooding by such a levee. If these levees
weren't overtopped, they failed. For short periods of time before levee
failure/

overtopping, homeowners attempted to live in their levee-protected
homes. The ring levees required homeowners to have a boat or other means
to reach an unflooded road. They also needed (get this) a PUMP to pump
rainfall that fell inside the ring levee to the outside of the ring
levee to prevent flooding within their levee. Most homes within the
environmental justice communities use septic tanks. When surrounded by
floodwaters or by a ring levee that is surrounded by floodwaters, septic
tanks do not work. In fact, sewage inside septic tanks back up into
bathtubs inside these homes, as well as flooded homes. It is unthinkable
for EPA to stop this project knowing that more homeowners to deal with
situations such as this.

An additional problem individuals face upon returning home after a flood
is mold. One of the major problems that faced by those attempting to
return to areas flooded in New Orleans was mold. Mold can cause many
health problems, especially respiratory problems. For those with
compromised immune systems, asthma, COPD, etc., the issue may be life
threatening. When my mom and I returned home after the 1973 flood, we
also faced a mold problem, but at that time, we had no idea of the
dangers that mold can cause. After my mom borrowed the money, carpenters
spent a lot of time restoring our home to pre-flood conditions. There
had been approximately 5" of floodwater in our house. Just high enough
to reach above the baseboard and permeate the lower portion of the
sheetrock. Through wicking action, the floodwater proceeded up the
sheetrock. The flooring was also saturated with floodwater. I firmly
believe that a disproportionately high adverse human health and
environmental effects have been and would be placed on low-income and
minority populations in the backwater area. Is it EJ to deny these
populations the opportunity to avoid **repeats**, not **a repeat**, of
similar or worse flooding?

I must say that my family was fortunate in that we had a home to come
back to. It was damaged but repairable. Several family friends were not
that fortunate. Their brick homes were completely washed away. Again, I
must compare this to Katrina. Many coastal residents were left with
nothing but a slab. Mortgage holders didn't care. They still wanted
their money. Some families were left to pay mortgages for a home that no
longer existed.

Since I am not very familiar with aquaculture, I do not have much first
hand information to offer. I do know that one huge problem for those
with fish ponds is the problem of floodwaters overtopping their fish
ponds. In 1973, fishing was great for those who enjoy it. The problem
was that the fishes being caught were from fish ponds to be harvested
and sold to fish processing plants. The ultimate end for pond fish was
to be served on the dinner plates of catfish lovers everywhere. In a
way, the general public stole these "pond raised fish." Not only did
pond raised catfish leave the ponds when they were overtopped, "trash"
fish and other fish not normally sold in fish markets were trapped in
the ponds as the water eventually receded. Before restocking their
ponds, fish farmers had to drain existing ponds to make sure that trash
fish and/or unhealthy fish were removed. The flooding conditions harmed
these subsistence fisherman, just as it did the farmer.

Homes are not the only casualties of the backwater flooding. Churches
are lost. I know; I had to move my 1974 wedding to Vicksburg because my
home church was lost during the '73 flood. The God-fearing people of
Valley Park have rebuilt the church. Are they in danger of losing it
again? This year, maybe? I am sure there are other churches that flooded
in '73 and during other floods, but I am not aware of their names. In a
time of such stress, it is a shame that these good people can not even
go to their house of prayer to ask for God's help.

Roads are also a major problem. If you have ridden on any road after
there has been a lot of rain, you must be familiar with all of the
potholes that pop up & pop up. Consider the impact that flooding has on
county maintained roads. I am referring to counties that are primarily
made up of low-income and minority populations, who can barely pay their
taxes now. The county does not have the money required to repair roads
that are going to be in such disrepair. From where does the money come?

There are families that make their living (subsistence) catching and
selling fish to local fish markets. These families normally fish in the
Yazoo River and the areas adjacent to the Mississippi River.
Unfortunately, this occupation is dangerous. Drowning can and does
happen more often that anyone would like. The fish sold to local markets
are primarily catfish and other fish known as trash fish that is not
eaten by a majority of consumers. Construction of the pump station
should have no impact to this type of subsistence fishermen. Flooding on
the Mississippi River and the Yazoo Basin may provide them with
additional areas (for example Centennial Lake that requires certain
Mississippi River elevations for access) to fish and trotline. During
pump operation, fishermen must be aware of its operation and stay clear
of it. Ample backwater area, not subject to the actual pump operation,
would be available for these fishermen. I do not believe subsistence
fishermen will be adversely affected by pump or its operation.

Few, if any, subsistence hunters utilize the backwater area with its
wildlife management areas and its national forests. Many recreational
hunters often use these areas and other private areas to kill animals to
supplement their families' meat or to share the meat with friends. Some
recreational hunters kill just for sport. Laws do not allow the sale of
wild game meat; hence, there is not opportunity for individual hunters
to make money. The high water levels force animals, just like humans, to
seek higher ground. Hunting at these times if not illegal is at least
unethical. Construction of the backwater pumps would provide the animals
with more available terrestrial areas. The pumps are not designed to
completely alleviate the backwater flooding. By lowering flood crest
elevations as proposed, animals will be more likely to survive the
flooding conditions that are terror to them, also.

Several "high end" wildlife facilities are located in Warren and
Issaquena Counties. Access roads to at least two of these areas flood
from Yazoo River. Once flooding begins, the only access to Lake Chotard
and Eagle Lake is a levee associated with the diversion canal. Traffic
on this levee is monitored to prevent anyone except those that must get
to the area from using the levee. The access to Tara Wildlife via
Highway 465 is also interrupted shortly after this flooding begins. The
proposed backwater pumps would have no impact on these areas.

**The Yazoo Backwater Area population primarily consists of low-income
and minority populations. The proposed veto of the Yazoo Backwater Pumps
will, no doubt, have disproportionately high adverse human health or
environmental effects. These same low-income and minority populations
will positively benefit from construction of the proposed pumps.**

**(5) Additional information on municipal and other water supplies in
the Yazoo River Basin and how the quantity and quality of those water
supplies could be affected by the operation of the pumping station;**

The area that would be supported by the backwater pumps primarily uses
wells not surface water. These supplies should not be impacted by the
proposed pumps. That is, unless the existing wells are in an area
flooded by a backwater. That would be a negative impact. Quality and
quantity should not be an issue.

**(6) The potential impacts to wetlands and their associated functions
in the Yazoo River Basin if the pumping station is built and operated;**

According to the March 19^th^ Federal Register notice announcing EPA's
proposed veto of the proposed pump station, "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. Of this total, approximately 26,300 acres would be
hydrologically modified to the extent that they would no longer be
defined as wetlands and would lose CWA regulatory protection. The
natural timing, frequency, and duration of water reaching the remaining
approximately 40,700 acres of wetlands would be impacted by the proposed
pumping, altering the wetlands' ecological characteristics and
significantly reducing their functions."

CFR 40 Part 230 Section 404(b)(1) Guidelines for Specification of
Disposal Sites for Dredged or Fill Material, the regulation which EPA is
using to veto the pump project, states that wetlands are one of six
special aquatic sites, and defines "wetlands" as "**[areas that are
inundated or saturated by surface or ground water at a frequency and
duration sufficient to support, and that under normal circumstances do
support, a prevalence of vegetation typically adapted for life in
saturated soil conditions."]{.underline}** \[The guidelines are not
really guidelines. They are requirements. Projects either pass or
fail.\] Wetlands are identified by using the 1987 Corps of Engineers
Wetland Delineation Manual. The Manual contains Routine Wetland
Determination Data Forms provide a listing of parameters/indicators to
differentiate jurisdictional wetlands from non-wetlands. The completed
forms confirm the presence or absence of the three required wetland
criteria: hydrophytic vegetation, wetland hydrology, and hydric soils.
Based upon information contained on the completed form, a particular
site or a data point, is determined to be a wetland or a nonwetland.

The Corps' Regulatory delineators use the 1987 WDM to, in essence, draw
a line in the dirt. The dirt on one side of the line is a wetland; the
dirt on the other side is not. Enough sample (or data) points are taken
to ensure that the extent of the wetlands on a side can be accurately
depicted. The delineators must make sure that the dots connect. There
may be several different portions of a site that are wetland but
separated from each other by nonwetlands (or uplands). In the 2007
Reformulation Report, the Corps states that it is not feasible to
conduct a regulatory delineation of the entire backwater area. EPA also
stated that field based determinations involving determining precise
boundaries and areal extent of jurisdictional wetland is not feasible
due to time and resource constraints. Unfortunately, it appears that is
the extent to which EPA and the Corps are in agreement with reference to
wetlands within the Yazoo Backwater Area. The 2007 Reformulation Report
provides a detailed history of past attempts to quantify wetlands that
would be impacted by the proposed project. Within the 2007 Report, both
the Corps and EPA use great detail to explain the method each used. As
with most aspects of this proposed project, EPA totally disagrees with
the method the Corps used to determine the extent of wetlands and
believes that its method is far superior to the Corps' method. EPA
states that its Environmental Monitoring and Assessment Program (EMAP)
was developed and tested within EPA's Office of Research and Development
over the past decade with published results." Also, "EPA determined a
field based, statistical survey would provide a more precise and
scientifically defensible basis for establishing the extent and spatial
distribution of wetlands in the study area." Within the 2007 Report, I
do not believe that EPA provided any specific instances in which their
EMAP program was used and its accuracy determined by independent
parties. Such information would be helpful, especially when EPA claims
it has found approximately "81,000 acres of jurisdictional wetlands
identified in the EMAP analysis that exist outside of the Corps wetland
assessment area are connected to backwater flooding . . . ."

In the March 19^th^ Federal Register, EPA also criticized the Corps' use
of remote sources to determine the extent of wetlands. EPA states,
"During the course of this project several attempts have been made to
estimate the spatial extent of wetland based upon remote sources of data
(i.e., Geographic Information Systems (GIS), satellite images,
hydrologic models. These remote based estimates of jurisdictional
wetland extent ranged from approximately 60,000 to over 200,000 acres.
Since these landscape level estimates were based on remote data with
un-estimated error, EPA determined a field based, statistical survey
would provide a more precise and scientifically defensible basis for
establishing the extent and spatial distribution of wetlands in the
study area." What EPA does not tell the reader is that the 1989 Wetlands
Delineation Manual was used by the Corps in the 2000 Wetland Appendix. A
wetland delineation made using the 1989 Manual indicated that 690,000
acres of the 930,000 acres in the Yazoo Backwater Project Area were
wetlands. The 1989 Manual allowed areas to be declared wetlands without
current hydrology information if they had hydric soils and hydrophytic
vegetation and there was no evidence of altered hydrology. For reasons
that appear to me to be obvious, Congress, in 1991, instructed the Corps
and EPA to cease using the 1989 Manual and to use the 1987 Manual for
wetland determinations. The "great variation" in the Corps' wetland
determination acreages (2000 version Report v 2007 version Report) was
to a certain extent dictated by the required use of two completely
different versions of the Wetland Delineation Manual (1989 v 1987) the
Corps was required to use. This information is thoroughly documented in
the 2007 Reformulation Report.

On June 19, 2006, the Supreme Court issued a ruling on RAPANOS et ux.,
et al. v. United States. The Court's Syllabus states, "As relevant here,
the Clean Water Act (CWA or Act) makes it unlawful to discharge dredged
or fill material into "navigable waters" without a permit 33 U.S.C. §§
1311(a), 1342(a), and defines "navigable waters" as "the waters of the
United States, including the territorial seas," §1362(7). The Army Corps
of Engineers (Corps), which issues permits for the discharge of dredged
or fill material into navigable waters, interprets "the waters of the
United States" expansively to include not only traditional navigable
waters, 33 CFR §328.3(a)(1), but also other defined waters,
§328.3(a)(2), (3); "\[t\]ributaries" of such waters, and §328.(a)(5);
and wetlands "adjacent" to such waters and tributaries, §328.3(a)(7).
"\[A\]djacent" wetlands include those "bordering, contiguous \[to\], or
neighboring" waters of the United States even when they are "separated
from \[such waters . . . by man-made dikes . . .and the like."
§328.3(c)"

The Court also states, "2. A wetland **may not** (emphasis added) be
considered "adjacent to" remote "waters of the United States" based on a
mere hydrologic connection. Further within "2.", the Court states,
"Thus, only wetlands with a continuous surface connection to bodies that
are "waters of the United States" in their own right, so that there is
no clear demarcation between the two, are "adjacent" to such waters and
covered by the Act. Establishing coverage of the Rapanos and Carabell
sites requires finding that the adjacent channel contains a relatively
permanent "wate\[r\] of the United States," and that each wetland has a
continuous surface connection to that water, making it difficult to
determine where the water ends and the wetlands begins. Pp. 21-24."

The following paragraph found in Justice Scalia's opinion, in which The
Chief Justice, Justice Thomas, and Justice Alito join, provides some
insight into the Justices' thoughts concerning the expansion of land
under federal jurisdiction, "The enforcement proceedings against Mr.
Rapanos are a small part of the immense expansion of federal regulation
of land use that has occurred under the Clean Water Act---without any
change in the governing statute---during the past five Presidential
administrations. In the last three decades, the Corps and the
Environmental Protection Agency (EPA) have interpreted their
jurisdiction over "the waters of the United States" to cover 270-to-300
million acres of swampy lands in the United States---including half of
Alaska and an area the size of California in the lower 48 States. And
that was just the beginning. The Corps has also asserted jurisdiction
over virtually any parcel of land containing a channel or
conduit---whether man-made or natural, broad or narrow, permanent or
ephemeral---through which rainwater or drainage may occasionally or
intermittently flow. On this view, the federally regulated "waters of
the United States" include storm drains, roadside ditches, ripples of
sand in the desert that may contain water once a year, and lands that
are covered by floodwaters once every 100 years. Because they include
the land containing storm sewers and desert washes, the statutory
"waters of the United States" engulf entire cities and immense arid
wastelands. In fact, the entire land area of the United States lies in
some drainage basin, and an endless network of visible channels furrows
the entire surface, containing water ephemerally wherever the rain
falls. Any plot of land containing such a channel may potentially be
regulated as a "water of the United States."

Rather than cite entire paragraphs to show that the Court feels strongly
that the Corps has over reached the bounds of its authority, I will just
pick a few interesting sentences. As an aside, if the Corps has
overreached its authority, doesn't it seen that EPA has reached much
farther than the Corps? These statements all come from the Rapanos
ruling itself. "In developing the current regulations, the Corps
consciously sought to extend its authority to the farthest reaches of
the commerce power." "But Rapanos II also stated that, even if the
ditches were not "waters of the United States," the wetlands were
adjacent to *remote* traditional navigable waters in virtue of the
wetlands' "hydrological connection to them. See **id**., at 639-640.
This statement reflects the practice of the Corps' district offices,
which may "assert" jurisdiction over a wetland without regulating the
ditch connecting it to a water of the United States."

"Therefore, only those wetlands with a continuous surface connection to
bodies that are "waters of the United States" in their own right, so
that there is not clear demarcation between "waters" and wetlands, are
"adjacent to" such waters and covered by the Act. Wetlands with only an
intermittent, physically remove hydrologic connection to covered waters
that we described as a "significant nexus"."

I believe that Chief Justice C. J. Roberts' concurring opinion contains
some valuable insight into what both the Corps and EPA have been doing
and continue to do. "Five years ago, this Court rejected the position of
the Army Corps of Engineers on the scope of its authority to regulate
wetlands under the Clean Water Act, 86 Stat. 816, as amended, 33 U.S.C.
§1251 *et seq.* *Solid Waste Agency of Northern Cook Cty. V. Army Corps
of Engineers,* 531 U.S. 159 (2001) (SWNCC). The Corps had taken the view
that its authority was essentially limitless; this Court explained that
such a boundless view was inconsistent with the limiting terms Congress
had used in the Act. *Id., at 167-174.*

*"*In response to the SWANCC decision, the Corps and the Environmental
Protection Agency (EPA) 68 Fed. Reg. 1991 (2003). The "goal of the
agencies" was "to develop proposed regulations that will further the
**public interest** (emphasis added) by clarifying what waters are
subject to CWA jurisdiction and affording full protection to these
waters through an appropriate focus of Federal and State resources
consistent with the CWA." *Ibid.*

"Agencies delegated rulemaking authority under a statute such as the
Clean Water Act are afforded generous leeway by the courts in
interpreting they are entrusted to administer. See *Chevron U.S.A. Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-845*
(1984). Given the broad, somewhat ambiguous, but nonetheless clearly
limiting terms Congress employed in the Clean Water Act, the Corps and
the EPA would have enjoyed plenty of room to operate in developing some
notion of an outer bound to the reach of their authority.

"The proposed rulemaking went nowhere. Rather than refining its view of
its authority in light of our decision in SWANCC, and providing guidance
meriting deference under our generous standards, the Corps chose to
adhere to its essentially boundless view of the scope of its power. The
upshot today is another defeat for the agency."

Justice Roberts' words are relevant to the subject at hand. According to
the Corps, their methodology was chosen to conservatively estimate the
extent of wetlands. After field verification and revisions, the Corps
concluded, "It tends to overestimate wetland extent in areas adjacent to
the main channels and underestimate wetland extent in areas distant from
the main channels. Wetlands adjacent to the channel are likely sustained
by backwater flooding and may be affected by the project. Wetlands in
areas not adjacent to channels may be sustained by ponding surface
runoff and would not be affected by the project . . . ." "These isolated
depressional wetlands generally capture rainfall and would be unaffected
by the operation of the Yazoo Backwater Project. The discrepancy induced
by this is easily offset by over prediction of wetland extent in the
lands adjacent to the two major ponding areas. This overprediction of
wetlands adjacent to the ponding areas results in an over prediction of
impacts to wetlands or a "conservative" estimate of wetlands.

EPA claims that its analysis has identified 81,000 acres of
jurisdictional wetlands located outside of the wetland impact assessment
area established in the Corps' 2007 Report.

I suggest both the Corps and EPA hear the words of Chief Justice
Roberts. Based upon my understanding of guidance implementing the
Rapanos ruling, it appears that the mistakes made after the SWANNC
ruling are being repeated. Instead of isolated "other waters", now I
find "isolated wetlands" in wetland delineations. I believe the last
sentence in Chief Justice Roberts' Rapanos opinion a very valuable piece
of advice. He said, "What is unusual in this instance, perhaps, is how
readily the situation could have been avoided." Unfortunately, both
agencies seem determine to repeat this "situation". The extent of
wetlands associated with the proposed pumps is such a "situation".

I recommend that, if anything, the extent of wetlands be reduced below
that currently determined by the Corps. Certainly, I see no rationale
for increasing the extent of wetlands by 81,000 acres as EPA suggests.

\(8\) Additional information on the availability of less environmentally
damaging practicable alternatives to satisfy flooding issues, taking
into account cost, technology, and logistics and including other
nonstructural alternatives;

\(11\) Potential impacts and benefits of alternatives, both structural
and nonstructural

I believe that these two items should be addressed together. One look at
the Corps' 2007 Report lists three nonstructural features, levee system
along both sides of the Sunflower River, dual pump stations at the mouth
of the Little Sunflower River and Steele Bayou, six alternative pump
sizes at Steele Bayou, and 7 elevations at which to begin pumping. Let's
be honest, the only alternative that EPA and the environmental community
will be satisfied with is a nonstructural alternative that results in
floodproofing, permanent evacuation of flood plain, and/or acquisition.
In other words, people get out and leave the backwater area to the flora
and fauna. My family has worked much too hard to go without a fight. I
submit that nonstructural features alone are not practicable, which as
previously mentioned takes into account cost, technology and logistics.

The report prepared by Leonard Shabman and Laura Zepp of Virginia Tech
at the request of EPA is needless to say quite interesting. Can someone
please tell me what background/experience that these authors have
outside the world of academia? What type of hands on experience do they
have in the Yazoo Backwater Area or similar area? In the world of ivory
towers and academia, anything is possible. In the real world, it is not.
It suggested that incentives be given to individual property owners to
cease farming and restore large amounts of farmland. In the Backwater
Area, CRP and WRP have successfully caused many marginal farm acres to
be reverted to forests. These programs have been so successful that at
least two of the Backwater counties are at or near the maximum acreage
allowed under these programs. In academia and ivory towers, the answer
is simple. Increase the number of acres allowed into these programs.
That doesn't work in the real world. Each county must have a tax base
upon which to rely. Counties must provide their residents with basic
services, services that cannot be provided without a tax base. There is
already a money crunch in these areas because they are largely made up
of low-income and minority populations.

I forgot, one of the nonstructural alternatives is permanent evacuation
of the flood plain. The people that live in the flood plain are tired of
flooding problems. Would they like to be rid of flooding issues? Yes,
but the problem is that the money offered to them for their current
homes would not be equal to a down payment on another residence. It is
an unfortunate fact of life; people can live in homes that we would
probably consider to be substandard. The cost for these same people to
find and afford something similar would be prohibitive. From where would
the money come to even make an offer to these individuals? This is not a
practicable alternative---consider economics, logistics, and technology.

Let's see, I forgot one other of the nonstructural alternatives---local
protection! I didn't forget this one. I will be glad to see if I can
find a home that has this "local protection" and allow the authors of
this report to live in it for a few months. I can think of one home in
particular that may be available. A levee was built around it in 1973.
After the flooding subsided, the levee was degraded at one point to
allow vehicles to enter and exit the driveway. Every time it rains, the
ground surrounding the home is flooded. I don't know how the septic
system is working, but who really needs a working septic system. There
is mold that can contribute respiratory problems---oh breathing isn't
all it is cracked up to be. Then there are the critters like that
area---but they are the ones that are important, not the human
homeowners. So, I wouldn't think that these authors would mind living in
these circumstances.

\(9\) Information on the potential for mitigation to replace the
functions and services provided by the 67,000 acres of wetlands that
are, at a minimum, at risk in the Yazoo Backwater Area;

It is my understanding that Mahanna Mitigation Area serves to mitigate
some of the impacts associated with the Tennessee-Tombigbee Waterway. I
would suggest that Mahanna be converted into mitigation for the pump
station and new mitigation for the Ten-Tom be found in a basin nearer to
the impact site. Or if it is possible to mitigate the pump station in
the Ten-Tom basin, it will be easier to find sufficient mitigation area
to satisfy EPA. If it is acceptable for Ten-Tom mitigation, it should be
acceptable for Yazoo Backwater Mitigation. As I have always been told,
agencies are not allowed to be arbitrary or capricious. I think in this
case that may be what is happening.

Based on mitigation requirements that I have dealt with for over 20
years, it is totally unacceptable to accept mitigation similar to that
discussed above. The tax base within the backwater area is small.
Supervisors are constantly looking for ways to raise funds without
increasing taxes on their economically depressed, minority population.
Significantly increasing non-tax-producing areas within these counties
is not practicable. Using easements and perhaps Mahanna, which is
already non-tax producing, would be an acceptable use.

\(10\) Whether the discharge should be permanently prohibited, allowed
as proposed by the Corps, or restricted in time, size or other manner;
and

The time to decide whether to permanently prohibit the proposed
backwater pumps was long ago. As stated in the Federal Register Public
Notice, "this project was authorized by the Flood Control Act of 1941,
which envisioned a plan to reduce backwater flooding in the Yazoo River
Basin through a combination of levees, drainage structures, and pumping
plants fully funded by the Federal government." Different features of
this of project have been constructed over 37 years. The features that
have been constructed have served to expedite the time that it takes for
runoff in the upper Yazoo Basin to reach the lower Basin. When flooding
is occurring on the Mississippi River and the gates must be closed, this
water has no where to go. It then ponds at higher and higher elevations
until the riverside of the gate reaches a level equal to or lower than
the landside elevation. If the rainfall occurring on the inside of the
basin is more than normally expected, areas within the Backwater that
should not flood, do. These areas would not flood as quickly had other
features of this project not been constructed. If a discharge of
material should be prohibited, it should have been before the other
project features were completed. I realize that some of the features
were constructed prior to enactment of the Clean Water Act. As with new
regulations, activities authorized prior to enactment of a law or
regulation are normally grandfathered. Because this project has been
authorized by Congress and completely funded by an act of
Congress---denoting that it is in the public interest---I suggest that
the pumps be grandfathered by the CWA. It should be considered
impracticable to restrict construction of the pump station in any way.
The time to do that would have been when the impacts were significantly
higher than they are now, when no mention of a veto was ever uttered.
Please don't try to say that EPA kept trying to get the Corps to reduce
the impacts and try nonstructural alternatives. The Corps has done
everything asked of it---there are 5,500 pages explaining all the
iterations that they have done. More nonstructural alternatives were
considered than structural alternatives. The only nonstructural
alternative that appears acceptable is NO PUMPS. If that be the case,
say it. Whining does not become a Federal agency. Neither does inventing
or exaggerating adverse impacts not based in science or previous
experience.

Thank you for allowing me to comment on this project. I encourage you to
take an objective, unbiased look at this project and base your decision
on the real not perceived impacts. I must emphasize that the time to
stop a drainage project is before it starts not when the final feature
is to be constructed. By denying the final feature, there is an unfair
burden placed on those who are the most harmed by the project as a
whole. In this case, that is the residents of the Yazoo Backwater Area.
As with others, I await your decision.

Peggy Holliday

<Pholliday@aol.com>

113 Jennifer Circle

Vicksburg, MS 39183