Fill placed along Alligator Branch for railway track bed. It is hard to watch a state agency bureaucracy hurt its own citizens in real time. At the May, 2013 meeting of the Mississippi Department of Environmental Quality (MDEQ) Permit Board, a group of homeowners from Picayune, in Pearl River County came to Jackson with their attorney to contest the granting of a state water quality certification on land next to their subdivision and access road.
An industrial developer known as Alliance LLC has built a sand processing plant on land adjacent to Alligator Branch, a small creek that separates the Alliance site from Ravenwood Subdivision. Ravenwood has experienced worsening flooding problems since Alliance began in 2011, without a Corps of Engineers 404 wetland permit, to bring in numerous loads of fill dirt to raise the elevation of their site.
The company was reported to the Corps of Engineers, was found to be in violation, and has since applied for an after-the-fact permit. For the company to come into compliance and get the Corps permit, the MDEQ first has to grant a 401 state water quality certification to go along with the federal 404 wetlands permit. The numbers 401 and 404 refer to sections of the federal Clean Water Act. The state certification must ensure that water quality standards are not violated by the filling of wetlands. Wetland filling is under Corps of Engineers jurisdiction while the water quality standards are a state matter.
Alliance has filled wetlands without a permit, and allowed volumes of sediment to wash into Alligator branch despite having an MDEQ construction storm-water permit. According to testimony of the Ravenwood homeowner’s attorney, Alliance also apparently filled a parcel of land that was part of a FEMA floodway buy-out easement, and began filling to elevate land for the construction of a railroad spur track bed, again without a wetland permit, also in apparent violation of the FEMA easement. Alliance should be stuck in no man’s land, permit-wise, but it has hired a big Jackson-based law firm to extricate it from its many environmental transgressions.
Predictably, MDEQ’s permit board granted the 401 water quality certification despite revelations that Alliance had been cited twice recently by MDEQ for storm-water violations. MDEQ staff admitted it has not once monitored the water quality in Alligator Branch. It would seem to defy logic to grant a certification of water quality without knowing what that quality might be. This is being done by the primary state agency designated by EPA to administer and enforce the Clean Water Act. At the meeting, I reviewed points made by Gulf Restoration Network last May when we commented on the after-the-fact COE permit application. I told the permit board that they don’t have the information necessary to grant the state water quality certification. If they have not monitored Alligator Branch, how do they know that state water quality standards haven’t been violated during two years of grading, filling and the resulting massive sedimentation of the stream? The MDEQ staff had more egg on their faces than I’ve seen in a long time, but they sheepishly recommended that the permit board grant the 401 certification - and that is what happened.
The permit board could have denied the certification or granted it with conditions that attempt to alleviate some of the problems that they know exist on Alligator Branch. Configured as it is, with mid-level bureaucrats from MDEQ and a collection of representatives from other state agencies, the permit board is a rubber stamp for whatever the MDEQ permit staff engineers want. What they want is for industry to get permits without much fuss or oversight. Citizens like the Ravenwood homeowners find out the hard way that they have very little chance of the permit board making a well reasoned decision. To get to a decision maker that is more resistant to political pressure, they have to appeal the matter to Chancery Court where a (hopefully unbiased) judge can force MDEQ to re-think its poorly conceived decision. It is an expensive process – a battle that most private citizens cannot afford to wage for long.
The MDEQ permit process disappoints and irreparably harms Mississippi citizens every year. The hurts are great, but the number of people hurt each year is small, and that is why nothing has been done to fix the problem. It is a mostly unreported problem – people fight for a while and eventually most just go home and try to live next to the sand plant, chicken houses, race tracks or other economic development projects forced on them by MDEQ regulators in the absence of local planning or zoning. If the Mississippi Legislature heard from enough of these hurt and disappointed citizens who lose the quiet enjoyment of their property, it could amend the statutes that dictate the permit process. It is likely that the Legislature likes the process just the way it is.
Andrew Whithurst is GRN's Assistant Director of Science and Water Policy