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

The Board of Mississippi Levee Commissioners appeals the district court's decision granting summary judgment to the Environmental Protection Agency ("EPA"), Lisa P. Jackson, Nancy Stoner, the Mississippi Wildlife Federation, Sierra Club, Environmental Defense Fund, Gulf Restoration Network, and American Rivers, on the Board's claim that the EPA improperly exercised its power to veto a plan to reduce flooding in Mississippi, called the Yazoo Backwater Area Pumps Project. Specifically, the Board claims that the EPA was barred from vetoing the Project under section 404(r) of the Clean Water Act (the "Water Act"), 33 U.S.C. § 1344(r). The Board contends that because all of the requirements of section 404(r) were met, the EPA could not have lawfully vetoed the Project. In response—and for the first time on appeal—the EPA claims that the Board does not have prudential standing to contest the EPA's decision. Additionally, the Board moved to supplement the record on appeal or, in the alternative, for this court to take judicial notice of a Fish and Wildlife Mitigation Report that was not before the district court. The Appeals Court ruled, "As an initial matter, we deny the Board's motion to supplement the record on appeal or, in the alternative, for judicial notice. In addition, we conclude that the EPA waived its argument that the Board does not have prudential standing under the Administrative Procedure Act (APA). We affirm the district court's decision upholding the EPA's veto, as the record does not contain sufficient evidence to overturn the EPA's findings." Among other things, the Appeals Court notes that, "The record contains a document from the Corps' Vicksburg District detailing its Standard Operating Procedures. See U.S. Army Corps of Engineers, Water Resource Policies and Authorities: Application of Federal Regulations Implementing Section 404 to Civil Works Projects (Sept. 18, 1979). This document sets out three options for the Corps to meet its obligations under section 404: (1) seek an exemption pursuant to section 404(r) as part of the authorization process; (2) obtain a state water quality certification pursuant to section 401; or (3) seek an exemption under section 404(r) after authorization by submitting an EIS to Congress. The record demonstrates that the Corps pursued the second option, as it sought a state water quality certification under section 401. Additionally, after the Corps revised the Project in 2007, it again sought a state water quality certification. The Corps' interpretation of section 404 shows that it would either have to seek an exemption under 404(r) or comply with section 401. The fact that it instead sought a state water quality certification indicates that the Corps did not believe that section 404(r) applied. Additionally, this document demonstrates that the Corps was aware of the process for seeking a section 404(r) exemption and that, had it intended to do so, it would have followed the Standard Operating Procedures."