[Federal Register Volume 59, Number 206 (Wednesday, October 26, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26510]


[[Page Unknown]]

[Federal Register: October 26, 1994]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-5097-1]

 

Proposed Determination To Prohibit or Restrict the Use of 
Wetlands and Other Waters as Disposal Sites for the Nashua-Hudson 
Circumferential Highway in Nashua, Hudson, Litchfield, and Merrimack, 
NH

AGENCY: U.S. Environmental Protection Agency (EPA).

ACTION: Notice of Proposed Section 404(c) Determination and Public 
Hearing.

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SUMMARY: Section 404(c) of the Clean Water Act (Act) authorizes the 
Environmental Protection Agency (EPA) to prohibit or restrict the 
discharge of dredged or fill material at defined sites in the waters of 
the United States (including wetlands) whenever it determines, after 
notice and opportunity for hearing, that use of such sites for disposal 
would have an unacceptable adverse impact on various resources, 
including wildlife. EPA-New England proposes under Section 404(c) of 
the Act to prohibit use of wetlands and other waters by the proposed 
Nashua-Hudson Circumferential Highway (NHCH) as disposal sites for 
dredged or fill material. The highway would directly eliminate 40 acres 
of valuable wetlands and indirectly degrade or threaten extensive 
additional wetland habitat. EPA-New England believes that filling the 
wetlands and waters of the site may have an unacceptable adverse effect 
on wildlife habitat and possibly municipal water supplies, and that 
less environmentally damaging practicable alternatives may be 
available.

Purpose of Public Notice

    EPA seeks comment on this proposed determination to prohibit or 
restrict the disposal of dredged or fill material into wetlands and 
waters in the greater Nashua area associated with construction of the 
proposed highway. See Solicitation of Comments, at the end of this 
public notice, for further details.

Public Comment

    Comments on or requests for additional copies of the proposed 
determination should be submitted to the designated Record Clerk at the 
EPA New England Regional Office, Lucy Delvalle, U.S. EPA, JFK Federal 
Building, WWP, Boston, MA 02203-2211, (617) 565-3474.
    EPA seeks comments concerning the issues enumerated under the 
Solicitation of Comments at the end of the document. Copies of all 
comments submitted in response to this notice, as well as the 
administrative record for the proposed determination, will be available 
for public inspection during normal working hours (9:00 a.m. to 5:00 
p.m.) at the EPA Regional Office.
    In accordance with EPA regulations at 40 CFR 231.4, the Regional 
Administrator has decided that a hearing on this proposed 404(c) 
determination would be in the public interest.

Hearing Date and Location

    Monday, November 21, 1994 at 6 pm; Hudson Memorial School; 1 
Memorial Drive; Hudson, NH.

Hearing Procedures

    (a) written comments may be submitted prior to the hearing, and 
both oral and written comments may be presented at the hearing.
    (b) the Regional Administrator of EPA New England, or his designee, 
will be the Presiding Officer at the hearing.

    (c) any person may appear at the hearing and submit oral and/or 
written statements or data and may be represented by counsel or other 
authorized representative. Any person may present written statements or 
recommendations for the hearing file prior to the time the hearing file 
is closed to public submissions.

    (d) the Presiding Officer will establish reasonable limits on the 
nature, amount, or form of presentation of documentary material and 
oral presentations. No cross examination of any hearing participant 
shall be permitted, although the Presiding Officer may make appropriate 
inquiries of any such participant.
    (e) the hearing file will remain open for submission of written 
comments until close of business, Tuesday, December 6, 1994.

FOR FURTHER INFORMATION CONTACT: Mr. Mark J. Kern, EPA Water Quality 
Branch, JFK Federal Building, WWP, Boston, MA 02203-2211. (617) 565-
4426.

SUPPLEMENTARY INFORMATION AND BACKGROUND

I. Section 404(c) Procedure

    The Clean Water Act, 33 U.S.C. 1251 et seq., prohibits the 
discharge of pollutants, including dredged or fill material, into the 
waters of the United States, including wetlands, except in compliance 
with, among other requirements, section 404. Section 404 establishes a 
federal permit program to regulate the discharge of dredged or fill 
material subject to environmental regulations, known as the 404(b)(1) 
Guidelines, developed by EPA in conjunction with the Army Corps of 
Engineers (Corps). Except for section 404(c) actions, the Corps may 
issue permits authorizing dredged and fill material discharges into 
waters and wetlands if they comply with, among other requirements, 
EPA's 404(b)(1) Guidelines. Section 404(c) authorizes EPA, after 
providing notice and opportunity for hearing, to prohibit or restrict 
filling waters of the United States where it determines that such use 
would have an unacceptable adverse effect on wildlife or other 
specified environmental interests. EPA can exercise 404(c) to ``veto'' 
a permit the Corps has decided to issue or to protect valuable aquatic 
areas in the absence of any specific permit decision.
    Regulations published in 40 CFR Part 231 establish the procedures 
to be followed by EPA in exercising its section 404(c) authority. 
Whenever the Regional Administrator has reason to believe that use of a 
site may have an unacceptable adverse effect on one or more of the 
pertinent resources, he may begin the process by notifying the Corps of 
Engineers, the applicant, and the landowners of the aquatic sites (if 
different from the applicant), that he intends to issue a proposed 
determination under section 404(c). Unless one of these parties 
persuades the Regional Administrator within 15 days that no 
unacceptable adverse effects will occur, the Regional Administrator 
publishes a notice in the Federal Register of his proposed 
determination, soliciting public comment and offering an opportunity 
for a public hearing. Today's notice represents this step in the 
process.
    Following the public hearing and the close of the comment period, 
the Regional Administrator may either withdraw the proposed 
determination or prepare a recommended determination. (A decision to 
withdraw may be reviewed at the discretion of the Assistant 
Administrator for Water at EPA Headquarters.) If the Regional 
Administrator prepares a recommended determination, he then forwards it 
and the complete administrative record compiled in the Region to the 
Assistant Administrator for Water at EPA Headquarters. The Assistant 
Administrator makes the final decision affirming, modifying, or 
rescinding the recommended determination.

II. Project Description and History

    The New Hampshire Department of Transportation (DOT) proposes to 
construct the Nashua-Hudson Circumferential Highway, a 13 mile limited 
access toll road in the City of Nashua and the Towns of Hudson, 
Litchfield and Merrimack in New Hampshire. A bypass highway, similar to 
the NHCH, has been proposed for many years. For the past decade EPA has 
raised environmental concerns regarding the highway. In its review of 
an earlier 1984 EIS, EPA recommended permit denial due to concerns 
about drinking water impacts at the Pennichuck Reservoir and wetland 
losses. In 1990 the Army Corps of Engineers required a revised EIS to 
focus on these issues.
    During the past three years, EPA reviewed several draft EIS 
documents, attended numerous meetings with DOT and the Corps, and 
conducted many site visits. EPA consistently advised the Corps and 
NHDOT that potential impacts to the Pennichuck Reservoir area, 
wetlands, and other water resources must be avoided and reduced. In 
1992, EPA sent several letters to the Corps stating concerns regarding 
severity of the aquatic impacts, the need to examine other 
alternatives, and the potential adverse drinking water impacts. EPA 
alerted the Corps that these impacts could cause the highway to violate 
the Guidelines.
    The Corps released the revised draft EIS in October 1992. EPA 
commented to the Corps in March 1993 that the proposed project violated 
the 404(b)(1) Guidelines and should be denied a permit and that the 
project was a candidate for prohibition under EPA's section 404(c) 
authority. The Corps issued the final EIS in October 1993. EPA restated 
its concerns in a November 1993 comment letter on the final EIS and 
identified the highway as a likely candidate for action under section 
404(c) of the Clean Water Act.
    At several points in February and March 1994, the Corps indicated 
its intent to issue a 404 permit for the NHCH, notwithstanding EPA's 
objections. On March 31, 1994, EPA began the first step in the 404(c) 
process by notifying DOT and the Corps that it believed the filling of 
the wetlands and other waters may have an unacceptable adverse effect 
on wildlife habitat and drinking water resources.
    EPA subsequently sent the notification letter to the numerous 
landowners in the right-of-way. The Corps, DOT and some landowners 
submitted letters in response to the notice that EPA was commencing the 
404(c) process. EPA also met with DOT and the Corps on May 13 and 26, 
1994, and with approximately 20 landowners on June 23, 1994 in Hudson, 
NH. Because these consultations did not convince the Regional 
Administrator that the highway would not cause an unacceptable impact, 
he is proceeding to this next step in the process.

III. Characteristics and Functions of the Site

    The wetlands within the proposed alignment of the NHCH as well as 
the 100+ square mile study area, as defined in the EIS, provide high 
quality, diverse habitat for fish and wildlife, a travel corridor for 
upland and wetland wildlife, food web production for on-site and 
downstream biological communities, nutrient and pollutant uptake and 
assimilation, floodwater storage, and flow moderation. Additionally, 
they serve as an environment for fishing, hunting, bird watching and 
other recreational activities. The EIS states that the vast majority of 
the wetlands provide a wide spectrum of functions and values. Wildlife 
habitat rated the highest at most of the sites.
    Most of the wetlands in the study area are riparian systems which 
border streams that flow to the Merrimack River, including Limit, 
Second, Merrill, Glover, Chase, and Pennichuck Brooks. Wetlands 
bordering streams provide special values. The streams transport organic 
material from upstream areas in the watershed to the floodplain 
wetlands, supporting food web production for on-site and downstream 
biological communities. Riverine wetlands also assimilate nutrients and 
pollutants, store floodwater, and moderate flows. These riparian 
corridors are also valuable because of their high productivity and 
travel use by wildlife.
    The study area contains valuable wildlife habitat, and includes 
over 200 different species of birds, mammals, amphibians and reptiles. 
The New Hampshire Heritage Program considers over 20% of these species 
uncommon, rare, threatened, or endangered in the state. Over 75% of the 
species in the study area utilize or depend on wetlands or riparian 
systems for survival.
    Some of the more than 100 bird species that utilize the study area 
include great blue heron and green-backed heron. Several wetland birds 
are uncommon or threatened, including species such as American bittern 
and eastern screech owl. Many of these aquatic species need large 
tracts of land to survive, such as northern waterthrush and belted 
kingfisher; others, such as red-shouldered hawk, depend greatly on 
riparian wetland systems. The bald eagle, a federal endangered species, 
uses this portion of the Merrimack River during winter for feeding, 
roosting and as a travel corridor. A peregrine falcon, also a federal 
endangered species, was observed at the Second Brook wetland complex 
during its migratory patterns.
    More than 40 mammal species live in the study area, including otter 
and mink. These aquatic species also require large blocks of habitat in 
which to forage and breed. Some of the mammal species in the study area 
are considered uncommon or rare in the state, such as fisher, hoary 
bat, and southern bog lemming.
    Over 30 species of reptiles and amphibians also inhabit the project 
site such as the uncommon blue spotted salamander; the vast majority of 
these species need wetlands for various life functions. Several species 
of amphibians in New Hampshire are obligate vernal pool species; that 
is, they require vernal pools to breed and survive. Moreover, some of 
these species, which can live 20 to 25 years, return to their natal 
pools each year to breed. Therefore, destruction of these pools may 
eliminate entire breeding populations of these animals. For example, 
one obligate species, spotted salamander, was observed at numerous 
vernal pools directly on the proposed alignment. Another obligate 
species, blue spotted salamander, a state listed species, was also 
observed at several locations on the proposed alignment. Painted 
turtles and other species were also observed using these valuable 
aquatic systems.
    Fish use wetlands as nursery areas and most important recreational 
fishes spawn in wetlands. Second Brook and Glover Brook are stocked 
with trout; the Merrimack River itself likely supports more than 30 
fish species.
    Area-sensitive species such as mink and otter as well as forest 
interior birds, such as red-shouldered hawk, broad-winged hawk, 
northern waterthrush, Canada warbler, barred owl, and black and white 
warbler live in the study area. These wetland species typically require 
large tracts for breeding and decline sharply with habitat 
fragmentation and reductions in forest patch sizes.
    Several large blocks of habitat in the study area support these 
interior, secretive animals. These habitats, generally associated with 
the large wetland complexes, are primarily undeveloped tracts of land 
and water with several corridors to allow free range of movement. The 
Second Brook area and lands to the east form a habitat block of 
approximately 5,000 to 10,000 acres, uncommonly large for this portion 
of New Hampshire. Large wildlife habitats also exist to the north in 
Londonderry and Litchfield.
    The Merrimack River, which flows north to south, dominates the 
hydrology of the study area and is fed by numerous tributaries flowing 
east to west. Since most of the proposed highway heads north and south, 
the 13 mile road would inevitably cross and fill a number of 
tributaries and sub-tributaries to the Merrimack.
    Wetlands at the site help to maintain and/or improve water quality, 
as well as regulate water quantity. Wetland plants and soil trap, 
assimilate, and transform pollutants entering the watershed. Wetland 
trees and shrubs retard floodwater, decreasing downstream flood stages. 
The basal flow contribution from wetlands to streams during summer 
stress periods provides water at the most important time of year.
    The Merrimack River is an existing and future source of water 
supply for a number of communities in New Hampshire and Massachusetts. 
In fact, the Merrimack River is a supplemental and emergency supply 
source for Nashua, although the intake is upstream from the proposed 
project. The Merrimack River is currently the primary drinking water 
source for a number of communities in Massachusetts (e.g. Lawrence, 
Lowell, Methuen, and Tewksbury), all of which are downstream of the 
proposed project and take raw water directly from the Merrimack River, 
just prior to treatment. Another community, Andover, MA, augments its 
primary supply by pumping water from the Merrimack. In addition, the 
Merrimack River has been considered as a future drinking water supply 
source for several additional communities, many of which are downstream 
(e.g. Haverhill, MA, North Andover, MA) of the proposed project.
    The NHCH would result in approximately 1.25 miles of roadway and 
two proposed interchanges within the Pennichuck Brook drainage 
watershed. Pennichuck Brook and ponds serve as the primary public water 
supply for the City of Nashua and for sections of other neighboring 
communities. There are many small public water supply systems that rely 
on drilled wells in Hudson and Litchfield. In addition, the Southern 
New Hampshire Water Company has a high yield wellfield in southern 
Litchfield.
    EPA, New Hampshire, and Massachusetts, having recognized the 
important environmental resources in the area, have been working to 
implement a multi-million dollar initiative to protect the aquatic 
resources of the Merrimack River Watershed. Considerable time, money 
and effort have been expended during the past three years to protect 
water quality and wildlife habitat. This project would adversely affect 
the very resources that EPA has targeted for protection with this 
watershed initiative.

IV. Basis of the Proposed Determination

A. Section 404(c) Criteria

    The CWA requires that exercise of the final section 404(c) 
authority be based on a determination of ``unacceptable adverse 
effect'' to municipal water supplies, shellfish beds, fisheries, 
wildlife or recreational areas. EPA's regulations define ``unacceptable 
adverse effect'' at 40 CFR 231.2(e) as:

    Impact on an aquatic or wetland ecosystem which is likely to 
result in significant degradation of municipal water supplies 
(including surface or groundwater) or significant loss of or damage 
to fisheries, shellfishing, or wildlife habitat or recreation areas. 
In evaluating the unacceptability of such impacts, consideration 
should be given to the relevant portions of the Section 404(b)(1) 
Guidelines (40 CFR Part 230).

    One of the basic functions of section 404(c) is to police the 
application of the section 404(b)(1) Guidelines. Those portions of the 
Guidelines relating to the analysis of less environmentally damaging 
practicable alternatives and significant degradation of waters of the 
United States are particularly important in the evaluation of 
unacceptability of environmental impacts in this case. The Guidelines 
forbid the discharge of dredged or fill material into waters of the 
United States if, among other requirements, there is a less 
environmentally damaging practicable alternative or if it would cause 
or contribute to significant degradation of waters of the United 
States.

B. Adverse Impacts of the Proposed Project

Direct Impacts to Wildlife
    The project as currently proposed by DOT would directly fill 
approximately 40 acres of wetlands.1 Destruction of wetland 
acreage correlates with loss of functions and values including habitat 
destruction, reduced primary and secondary productivity and alteration 
of hydrological functions. The NHCH would also cross 18 streams, 
causing the direct loss of 3,000 feet of stream bed, place 200 acres of 
roadway on top of fourteen different high yield aquifers, and eliminate 
600 acres of undeveloped upland habitat.
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    \1\All of the full build alternatives described in the EIS would 
cause similar long term impacts to the environment. Therefore, the 
following summary is generally applicable to the other full build 
options as well.
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    The proposed project would disrupt high quality aquatic ecosystems 
already experiencing stress from encroaching development in southern 
New Hampshire. The large direct loss of wetlands would cause the death 
and displacement of wildlife, and reduce water quality functions. 
Uncommon species would suffer the most, especially area sensitive 
animals, species dependent on riparian habitats, and smaller animals 
that are either less mobile or depend on vernal pools.
    The project would destroy at least 5 vernal pools. Vernal pools are 
especially valuable to wildlife, particularly as breeding areas for 
amphibians. Given the strong fidelity of numerous aquatic species to 
their natal ponds, the direct destruction of the pools results in the 
loss of a large and important wildlife resource. Several populations of 
different species would be lost, including spotted salamander and the 
rare state listed blue-spotted salamander.
    The highway would impact one of the last essentially intact 
ecosystems remaining in the greater Nashua area and cause impacts well 
beyond the footprint of the fill. Numerous streams and wetlands would 
be bisected, thereby altering the hydrology, disrupting species 
movement and increasing predation of uncommon species.
Indirect Impacts to Wildlife
    In addition to direct losses, the NHCH would degrade wetlands, 
including vernal pools, that would border the proposed highway. When a 
large highway fragments habitat blocks, common species proliferate at 
the expense of the more unusual wetland wildlife species. Fragmentation 
causes increased nest predation and parasitism to songbird populations. 
Large highways act as funnels moving some predators, such as red fox 
and crows, into previously buffered wetland interior areas.
    Riparian corridors help maintain viable wildlife populations by 
adding to the natural connectivity of habitats already fragmented by 
development. Far ranging aquatic mammals inhabiting the site which 
often travel along streams, such as fisher and mink, would be impacted 
adversely. While such species are capable of crossing highways, they 
often avoid areas of human disturbance. Fast moving vehicles would kill 
some of these individuals which venture onto the highway especially at 
night.
    Large highways restrict wildlife movement and interfere with the 
natural exchange of genetic material. A large highway with fences, 
broken canopy, and vehicle activity throughout much of the night 
presents a significant barrier to the movement patterns of animals, 
resulting in increased direct mortality and avoidance behavior. Because 
of its size and projected high traffic volume, this highway will likely 
act as a barrier to restrict the movement of numerous wetland species 
across the landscape, especially small mammals, reptiles, and 
amphibians.
    DOT has asserted that: (1) local roads and other disturbances have 
already fragmented the area to some degree; (2) the undeveloped block 
of habitat near Second Brook is actually 10,000 acres, not 3,000 or 
5,000 acres and the road would not pass through the center of it; (3) 
the bridges and culverts would provide for the movement of animals; (4) 
DOT's consultant conducted a site specific analysis of the habitats and 
wildlife; and (5) the vernal pools, several of which are impaired, do 
not contain any special species. EPA agrees in part with some of these 
statements, but nevertheless believes the NHCH could have unacceptable 
effects on wildlife. EPA is, however, especially interested in 
receiving comment on the five issues raised above.
    In considering DOT's statements, EPA has been mindful of several 
factors. First, while there are local roads in the area, most of them 
are roughly 25' wide and have tree canopies which cover most of the 
road. Fragmentation impacts are generally proportional to the size of 
the interruption. A 250' wide highway such as the NHCH, with activity 
throughout the day and night would normally cause an order of magnitude 
or greater impact than existing conditions.
    Second, EPA agrees that the overall habitat block approximates 
10,000 acres, but this fact only underscores the value of the area for 
wildlife. That a roadway further east could cross more of the center of 
the block does not change the severe impacts of a highway in the 
present proposed location. Third, we hope that the bridges and culverts 
would help with animal movement patterns; however, despite these 
efforts less than 2% of the roadway will allow passage and, in any 
event, there is little known regarding animal use of oversized 
culverts. These passages would not assist many of the small species 
searching for food or breeding sites that cannot find or travel to the 
nearest potential passageway. Other long ranging species can and will 
cross highways without using a culvert and are subject to roadkill.
    While the EIS provided much useful information, it contained 
relatively few site specific wildlife observations and the likely 
impacts of the highway. Thus, EPA contracted with wildlife experts to 
gain site specific information lacking in the EIS. Preliminary results 
for reptiles and amphibians confirm that many of the vernal pools the 
NHCH would impact provide high quality breeding habitat for many 
wetland species, including a rare state listed species.
Secondary and Cumulative Impacts
    Construction of the highway may also spur secondary development 
along the route which will degrade additional aquatic resources. The 
highway would allow quicker access to the region, encouraging greater 
development especially for certain types of projects. Location and 
access are major siting criteria for many types of commercial and 
industrial development. In addition, these projects normally require 
reasonably large tracts of land increasing the prospects of adverse 
impacts to wetland habitat. Over time, additional point and non-point 
contamination sources may degrade the quality of both surface and 
groundwater supply resources.
    Based on the number of permit applications that EPA, the Corps, and 
the State have reviewed the past 10 years, the greater Nashua area has 
experienced some of the most severe cumulative loss of aquatic habitat 
in New England. The direct and indirect impacts from the proposed 
highway would aggravate the severe cumulative loss of habitat and 
depletion of biodiversity that has occurred. Furthermore, other large 
highways proposed in this vicinity, such as the Manchester Airport 
highway, the Nashua southwest bypass, and the Windham-Salem Route 111 
bypass are currently in the planning stages. If built, these highways 
would result in additional cumulative impacts to the wetlands and 
streams that flow into this portion of the Merrimack River.
Water Quality Impacts
    The NHCH would also reduce overall water quality as a result of 
temporary construction related adverse impacts, the long-term adverse 
impacts from contamination from highway stormwater runoff, the 
anticipated secondary and cumulative impacts associated with newly 
constructed highways, and the potential for bulk chemical or fuel 
spills. Greater amounts of sediment, nutrients, and other pollutants 
associated with urban runoff, such as heavy metals, oil and grease, and 
organic contaminants could enter groundwater and tributary streams and 
flow into the Merrimack River. Sedimentation results in turbidity and 
often transports pesticides, heavy metals and other toxins into the 
streams, which adversely affects aquatic life.
    EPA is aware that DOT proposes to make a substantial effort to 
reduce impacts to drinking water resources. It plans to install a 
closed drainage system near the Pennichuck water supply that diverts a 
majority of the runoff to a detention pond downstream of the intake. It 
also proposes to divert drainage from the F.E. Everett Turnpike (not 
part of the NHCH), several bridges (including crossing the Merrimack 
River), several interchanges, including the Turnpike and Route 102, and 
other locations, and discharge the contaminated water into lined 
detention basins for water quality renovation, prior to being 
discharged to a surface water source (e.g. the Merrimack River or an 
associated tributary). DOT also states it will carefully maintain these 
structures and ponds and designate a Environmental Coordinator to 
oversee the implementation of the plans. In addition, there has been 
discussion about implementing some type of long-term water quality 
monitoring plan to evaluate the effectiveness of selected detention 
basins.
    While these measures will help considerably, and in the case of the 
F.E. Everett Turnpike, actually improve an existing situation, the 
highway would unavoidably increase overall pollution to these water 
supply sources. The NHCH would place over 200 acres of land under 
pavement and impact a number of surface and groundwater public water 
supplies by adding contaminants to these aquatic systems. Stormwater 
runoff from the highway would degrade both surface and groundwater. 
While mitigation measures could reduce these impacts, it is difficult 
to control fully the pollutants generated by a large highway crossing 
many streams and wetlands.
    For example, long-term problems such as accidents, spills, 
maintenance and disposal would remain. Detention ponds hopefully remove 
the majority of the pollutants, but some pollution passes through and 
enters aquatic systems. Over time, detention ponds may become a sink of 
pollution unless properly and frequently dredged and maintained. In 
time, impermeable lining material may be altered in such a way that it 
could be functioning less efficiently. Also, numerous portions of the 
highway would drain directly to groundwater, wetlands and streams.
    Secondary development in the watershed, in part spurred by the 
highway, would worsen water quality concerns. Historical studies and a 
recent planning study (I-190/Wachusett Reservoir Water Supply 
Protection Study, 1992) support the fact that the presence of 
interstate highways encourages development and induces growth. Highways 
provide the necessary access to areas where development has not 
occurred, as well as additional access to existing developed areas. The 
Pennichuck Corporation, which owns and operates the Pennichuck Water 
Supply, controls only 11% (approximately 1800 acres) of the entire 
Pennichuck Brook watershed. In fact, the Pennichuck Corporation has 
sold nearly 200 acres of watershed land in recent years and EPA 
anticipates continued development within the watershed.
    The NHCH could directly or indirectly adversely impact a number of 
groundwater resources, particularly in the communities of Hudson and 
Litchfield along the project corridor. The increased secondary and 
cumulative growth will be concentrated at or in the vicinity of the 
proposed interchanges, within sensitive water supply resource areas. 
Groundwater degradation is a nearly inevitable consequence of increased 
development, increased land use, and industrial development. 
Additionally, there is no assurance that new interchanges would not be 
constructed in the future along this proposed limited access highway, 
which would further increase developmental pressures.
    The FEIS also concludes that any of the full or partial build 
alternatives will degrade or pose a contamination threat to surface 
water and groundwater resources as a result of stormwater runoff, the 
possibility of accidental spills, and short-term construction impacts. 
The FEIS presents these impacts to water supply resources as being 
essentially unavoidable and states that these potential adverse impacts 
should be minimized and mitigated, primarily through the use of Best 
Management Practices (BMPs) and other structural means. However, the 
future responsibility of mitigating any adverse impacts to water supply 
resources from accelerated or enhanced associated development would be 
deferred to local zoning and planning boards.

C. Project Need and Alternatives

    There is clearly a need to reduce or minimize traffic congestion in 
the greater Nashua area and the Central Business District (CBD) in 
particular. This is especially true at the Taylor's Falls Bridge, the 
only crossing of the Merrimack River in New Hampshire south of 
Manchester. Several primary routes converge on the bridge--Routes 111, 
102, and 3A. However, no alternative, including the NHCH, will solve 
all the traffic difficulties; under all options traffic problems 
remain.
    EPA requests public comment on the effectiveness of various 
alternatives to reduce traffic problems in the Nashua area, including 
the NHCH. We also request comment on other alternatives or combinations 
of options which would cause considerably less environmental damage, 
including partial build options, mass transit, reducing existing 
traffic during rush hours, and improving or expanding existing local 
roads (see discussion below).
Background
    EPA concurred with the project purpose as originally defined by the 
Corps: ``to provide a transportation improvement to assist east-west 
traffic movements and to reduce congestion on existing bridges and 
streets in and near the central business districts of Nashua and Hudson 
by adding new crossings of the Merrimack River.'' However, the EIS 
includes the additional ``goal'' of reducing traffic volumes for the 
CBD in the year 2010 to a level less than existing traffic levels, as 
specifically measured by the percent change in LOS F miles (explained 
below) from 1990 to 2010. Alternatives which did not meet this specific 
goal were eliminated as being ``impracticable.'' Because this test for 
practicability is constrained in space (central business district), 
time (compares two specific years of analysis) and measure (percentage 
of miles of level of service F), it artificially eliminated certain 
alternatives from further consideration.
    EPA believes the basic project purpose, in keeping with the 
requirements of the Guidelines, would be: to reduce a large portion of 
the traffic congestion in the greater Nashua area (as defined in the 
EIS), with greater importance being given to the Central Business 
District. This basic project purpose would provide a sound basis to 
evaluate and judge the practicability of various options.
    Traffic engineers analyze traffic conditions and future projections 
using a number of different techniques, including the following:

1. Average daily traffic volume (ADT) for roadway segments
2. Level of Service (LOS)--for roadway segments
3. Level of Service (LOS)--for intersections
4. Free-Flow and Congested Vehicle Hours of Travel (VHT)

    Typically highway departments use a peak-hour analysis of existing 
and projected conditions to determine the need for highway 
improvements. Existing and future ``Levels of Service'' are analyzed. 
LOS is a qualitative measure describing operational conditions assigned 
a letter A-F. LOS A and B represent relatively little traffic and LOS E 
and F represent heavy traffic conditions and vehicular delay for at 
least peak hours (prime commuting hours).
    All of these methods were used with Nashua to predict future 
traffic conditions (2010) in three separate locations:

1. The central business district (CBD)
2. The F.E. Everett Turnpike (Turnpike)
3. Roadway segments bordering the CBD
DOT's Traffic Projections
    The proposed NHCH provides some traffic relief for the central 
business district. Using DOT data and models, the full build would 
remove LOS F' in the CBD (F' is worse than F), while, for example, if a 
partial build highway from Route 102 north to the Turnpike were 
constructed, 1.2 miles of LOS F' would remain.
    In the CBD in 2010 with the NHCH built, 4.5 miles of traffic 
congestion (LOS F', F, & E) would result. Under the no build condition, 
8.9 miles of congestion would remain (LOS F', F, & E).
    However, the proposed NHCH does not provide substantial traffic 
relief for the entire study area. Using DOT's data and models, any 
traffic measurement--ADT, LOS for intersections, LOS for road 
segments--shows modest traffic improvements for the NHCH. In the study 
area in 2010, 27.3 miles of congestion (LOS E, F, and F') would remain. 
Under a no build alternative 39.7 miles of congestion would result.
    When one examines the vehicle hours of travel (VHT), it appears 
that the partial build option supplies a substantial portion of traffic 
relief that the NHCH would provide. The percent of free-flow traffic 
would be 69% for the NHCH verses 66% for the partial build from Route 
102 north to the Turnpike. The following table summarizes the congested 
and free-flow hours of travel: 

------------------------------------------------------------------------
                                                               Congested
              Alternative                    Free-flow VHT        VHT   
------------------------------------------------------------------------
No-Build (2010).........................      169,172 (50.1%)    168,416
Full Build (2010).......................      162,461 (68.5%)     74,727
Partial Build (2010)....................      164,646 (65.7%)    86,140 
------------------------------------------------------------------------

    DOT's models may also overestimate traffic benefits from a full 
build highway. For example, the model assumes the same future traffic 
growth in the study area, with or without the highway. EPA's experience 
with other highways in New England suggests that they do alter land use 
and development patterns. We have no reason to believe that this 
highway would be any different. If the highway generates more 
development, the corresponding increase in traffic could increase 
levels beyond current projections for the full build (or reduce 
projections for the no build option). We request comment from the 
public on whether the highway will likely spur additional development 
and traffic growth.
    Increased traffic in the study area resulting from the NHCH could 
place additional burdens on the two North-South roads in the region, I-
93 and especially the F.E. Everett Turnpike. Both of these roads are 
proposed for widening in the near future, and major portions of the 
Turnpike will be at LOS F conditions even after expansion. Even with 
the EIS assuming no increased growth in traffic caused by the highway, 
the EIS shows that parts of the Turnpike already experiencing LOS F 
conditions will receive greater traffic volumes once the NHCH is in 
place. This condition would worsen if the NHCH generates additional 
traffic to the area.
    The current analysis gives little weight to toll avoidance. 
However, this is a factor that could cause the full build to reduce 
congestion less than projected in the CBD because the Taylor's Falls 
Bridge, the primary focal point of traffic in the CBD, would be the 
only non-toll road remaining in New Hampshire to cross the Merrimack 
River south of Manchester. (The Sagamore Bridge, currently free, would 
require a toll once it is part of the NHCH.) Some percentage of 
vehicles currently using the Sagamore Bridge would avoid paying the 
toll by using either the Taylor's Falls Bridge, or the Tyngsborough 
Bridge, five miles south in Massachusetts. The EIS did not discuss the 
issue of tolls and toll avoidance, and EPA requests comment on these 
issues.
    In summary, the proposed highway would only provide partial traffic 
relief for the overall traffic patterns in the greater Nashua area. 
Other measures of reducing traffic volumes, which cause much less 
impact to the environment, may also provide some portion of the relief 
that the NHCH would provide. Such measures and combinations of measures 
could include partial build options, traffic demand management measures 
(TDM), traffic systems management (TSM), and local improvements.
Partial Build Options
    Partial build alternatives would involve constructing one or more 
segments of the NHCH but something short of the full highway proposed 
by DOT. All the partial build alternatives discussed below have 
substantially less impact to wildlife because the partial build options 
would not fragment the 10,000 acre habitat block, would not destroy 
several valuable vernal pools, and it would avoid nine streams and 
other valuable wetlands. Partial build alternatives include:
     Southern Bridge. This option would be an expansion of the 
Sagamore bridge in the south from the F.E. Everett Turnpike in Nashua 
to Route 3A in Hudson, allowing direct access from the Turnpike across 
the Merrimack River to Hudson.
     Two Bridges. This option would include expansion of the 
Sagamore bridge in the south from the F.E. Everett Turnpike in Nashua 
to Route 3A in Hudson and construction of a new bridge in the north 
also from the F.E. Everett Turnpike in Merrimack to Route 3A in 
Litchfield. Thus, it would provide a new crossing of the Merrimack 
River between Nashua and Manchester.
     Partial Build to Route 102. Identical to the above 
alternative, this option would also extend the northern section two 
miles east to Route 102 in Litchfield.
     Partial Build to Route 111. This alternative is the same 
as above, plus an extension of the northern section another four miles 
southeast to Route 111.
    Partial build alternatives, as measured by LOS of segments, appear 
to do relatively little to improve traffic in the CBD. However, as 
measured by average daily traffic, the partial build option from Route 
102 north to the F.E. Everett Turnpike, for example, would provide over 
50% of the traffic benefits of the full build in the CBD and over 75% 
of the traffic benefits of the full build for the entire traffic 
network. DOT states in several documents that a bridge to the north 
would provide traffic benefits to the study area.
    However, DOT has also stated that the partial build options will 
not provide traffic relief or could even make the traffic situation 
worse, including adding more traffic on local roads, such as Route 3A. 
We understand that local roads in the area will be busier with more 
cars in the future, but that may be true if the NHCH is built as well. 
EPA seeks comment on this issue as well.
TDM/TSM Measures
    Traffic demand measures (TDM) reduce the number of vehicles on 
roadways especially during peak travel times when the worst congestion 
occurs. Traffic system management (TSM) refers to infrastructure 
improvements to enhance the efficiency of vehicle movement.
    DOT and the Nashua Regional Planning Commission have already made 
important strides in acquiring funds in recent years to pursue some 
TDM/TSM measures. Some of the projects which have been funded or for 
which they are pursuing funding include:

1. improving traffic circulation at Taylor's Falls Bridge
2. constructing an intermodal transit facility (downtown Nashua)
3. expanding existing and building new park and ride facilities
4. completing a statewide plan for TDM, mass transit, and high 
occupancy vehicle lanes (HOV)
5. buying old railroad corridors for bike and walking trails
6. building an HOV lane at the Bedford toll--2 year trial
7. providing free shuttle bus service along Main Street in Nashua for 2 
years
8. improving downtown traffic circulation in Nashua

    Additional and expanded TDM and planning techniques for managing 
and reducing peak congestion, which appear to have the greatest 
potential in the greater Nashua area include:
    (1) organized operation of mini-vans for car-pooling and ride-
sharing;
    (2) better management, operation, and extension of the local bus 
system;
    (3) changing future land use development patterns to encourage 
cluster developments;
    (4) parking disincentives;
    (5) removing disincentives to implement and utilize mass transit;
    (6) extending rail service to the greater Nashua and Manchester 
area from Boston;
    (7) telecommunications in lieu of travel; and
    (8) incentives to business for implementing staggered work hours 
and many of the measures listed above.
    It is important that TDM measures be combined with TSM to prevent 
the improved mobility from attracting new users and leading to future 
congestion problems. Traffic flow improvements could include signal 
system timing/optimization, addition of turning lanes, restrictions of 
single occupant vehicles (to enhance HOV operations and attract users), 
fringe park and ride lots, and pedestrian/non-motorized improvements.
Local road improvements
    Local improvements include anything that expands capacity on the 
basic existing traffic network, for example, improving traffic flow 
across the Taylor's Falls Bridge. While some TDM/TSM measures could 
also be listed under this category, other local improvements could 
involve adding additional lanes, overpasses, mini-bypasses, or other 
structural changes. Since the EIS does not focus on this issue very 
much, EPA would appreciate comments on needed improvements to the 
existing traffic network.

D. Mitigation

    The current mitigation plan consists of avoiding, minimizing and 
compensating for environmental losses. DOT has endeavored to minimize 
impacts by proposing: 1. two bridges and five box culverts at some of 
the stream locations; 2. closed drainage systems to divert and treat 
runoff in order to minimize impacts to drinking water resources; 3. 26' 
median widths at wetland locations; 4. 2:1 side slopes to minimize 
impacts; and 5. two retaining walls to reduce impacts.
    The compensatory mitigation portions of the plan consist of the 
following: 1. attempted creation or restoration of 44 acres of wetlands 
mainly at the former Benson's Wild Animal Farm; 2. bringing Merrill 
Brook above ground at Benson's; 3. constructing water detention basins 
adjacent to the roadway; 4. preserving an additional 100 acres at 
Benson's and 135 acres along an old alignment that DOT owns in the 
southern portion of the site; and 5. protecting water supply by 
capturing part of the runoff from the existing F.E. Everett Turnpike.
    In general, DOT has proposed a substantial mitigation plan, 
especially to minimize impacts. However, EPA believes that the 
environmental benefits, especially for wildlife, of the proposed 
compensation plan fall well short of the impacts the NHCH would cause. 
While creation and restoration may be beneficial to the aquatic 
environment, especially when applied at a low value site in a 
relatively undisturbed landscape setting, wetland creation suffers from 
both theoretical limitations and practical problems.
    First, the poor track record associated with wetland creation 
suggests that it would be unwise to rely on this mitigation to provide 
all of the intended benefits. Some wetland functions, such as flood 
storage, can normally be replicated successfully. Attempts to mitigate 
wildlife habitat losses have met with mixed success, and benefit only a 
few select species. There has been little or no demonstrated ability to 
recreate other wetland values such as groundwater discharge and 
recharge or the complex interactions of water, soil and plants involved 
in the uptake and transformation of nutrients and pollutants.
    DOT has made an effort to address this uncertainty by offering to 
construct the mitigation at Benson's before the highway can proceed. 
This would allow the success or failure at Benson's to be evaluated 
with greater certainty. EPA believes that demonstrating success at the 
Benson's site or other selected sites prior to highway construction 
makes sense and should be part of any mitigation plan should the NHCH 
be partially or fully constructed. However, even if successful, it 
would not alter the insufficiency of the current mitigation plan. The 
creation site borders 3 roads, including the busy Route 111. The 
potential for human alteration and disturbance, from off road vehicles 
and other human intrusion, would remain, as well as the impacts to 
wildlife from fragmentation and being hit by cars and trucks. Thus, 
restoring the site would only offset a modest amount of the impacts the 
highway would cause to uncommon species in the study area.
    Second, the proposed mitigation would not replace many lost 
functions and values. It would not compensate for fragmenting one of 
the last large undeveloped tracts remaining in the study area, which 
provides an oasis for many species of wildlife. The plan would not 
replace riparian streams, floodplains or the spectrum of natural 
resource values these areas provide. Also, it would do little to offset 
the large indirect, secondary, and cumulative impacts the highway would 
inevitably cause or contribute to.
    While preservation cannot replace the direct and indirect impacts 
from fragmentation, it can reduce the likely secondary and cumulative 
impacts. However, the current preservation proposal appears 
insufficient to provide substantial environmental benefits. The 100 
acres at Benson's, while useful to buffer the creation area, would be 
located between the new highway and the developed portions of Hudson, 
providing only modest wildlife access and benefits. The 135 acres, 
which is part of the old right-of-way, protects some useful habitat; 
however, it is a long linear parcel and some of it lies inside of or 
adjacent to the NHCH.
    Three areas appear to be especially valuable and vulnerable to 
secondary impacts in the future: (1) the 5,000-10,000 acre block in the 
southeastern portion of the study area; (2) a large wetland and upland 
complex in the southern part of Litchfield and Londonderry, containing 
several rare species and bordering other protected lands; and (3) 
floodplain forest and farmland along the Merrimack River in Litchfield. 
We request comment on the adequacy of the current preservation package 
and whether additional preservation options, such as portions of those 
described above, could offset the likely secondary and cumulative 
impacts of the highway.
    After considering the project's impacts and the uneven track record 
of wetland creation and enhancement projects to compensate for projects 
involving much less severe impacts, EPA has concluded that the adverse 
effects of the highway will be difficult to mitigate sufficiently to 
render them environmentally acceptable. The mitigation plan described 
in the EIS and other documents would not compensate for the severe 
impacts to wildlife which the project would cause.

V. Proposed Determination

    Based on the current proposal, the Regional Administrator proposes 
to recommend that the discharge of dredged or fill material into 
wetlands and other waters associated with the Nashua-Hudson 
Circumferential Highway be prohibited. This action would not prohibit 
other uses of the land on the alignment, nor would it preclude possible 
permitting of partial build alternatives.
    This proposed determination is based primarily on the adverse 
impacts to wildlife. EPA has already concluded and stated in previous 
letters that the project would cause or contribute to significant 
degradation of waters of the United States and violate the 
Sec. 404(b)(1) Guidelines. It would directly destroy 40 acres of 
wetlands in an area beset with cumulative impacts, and will degrade 
additional wetlands through secondary and indirect impacts. Based on 
current information, the Regional Administrator has reason to believe 
that the adverse impacts of the Nashua-Hudson Circumferential Highway 
would be unacceptable. Moreover, these impacts may be in part 
avoidable.

VI. Solicitation of Comments

    EPA solicits comments on all issues discussed in this notice. In 
particular, we request information on the likely adverse impacts to 
wildlife and other functional values of the streams and wetlands at the 
site. We also seek information pertaining to plants, animals and 
hydrology of the site and adjacent lands. All studies of the natural 
resource values of the area or informal observations would be helpful. 
Information on species or communities of regional and/or statewide 
importance would be especially useful.
    While the significant loss of wildlife habitat serves as EPA's main 
basis for this proposed 404(c) determination, New England has 
additional concerns with the proposed project including water quality 
and drinking water impacts, alternatives, and mitigation. In 
particular, EPA solicits comments on particular aspects of the project 
including:
    (1) The presence and likely impacts to fish and wildlife resources 
using the study area;
    (2) The potential for indirect impacts from the NHCH to fish and 
wildlife resources, such as fragmentation, noise and roadkill;
    (3) The extent to which local roads and other disturbances have or 
have not fragmented the study area;
    (4) The extent to which the bridges and culverts would or would not 
provide for the movement of animals;
    (5) The potential for secondary wetland losses, through additional 
development that would benefit from access to the highway;
    (6) Evidence of past and likely future cumulative impacts to the 
aquatic environment;
    (7) Information on potential for drinking water and other water 
quality impacts;
    (8) Information on whether the new highway would generate 
additional traffic and land use changes compared to a no-build 
alternative;
    (9) The extent to which additional traffic would travel across the 
Taylor's Falls Bridge and the Tyngsborough Bridge to avoid paying tolls 
on the Sagamore Bridge or the northern bridge.
    (10) The extent to which partial build options would provide 
traffic relief or make the traffic situation worse, including adding 
more traffic on local roads, such as Route 3A;
    (11) The effectiveness or lack of effectiveness of the NHCH in 
reducing traffic congestion;
    (12) Information on the availability of less environmentally 
damaging practicable alternatives to satisfy the basic project 
purpose--reducing traffic congestion in the greater Nashua area--taking 
into account cost, technology, and logistics;
    (13) The extent to which local improvements, such as adding 
additional lanes, overpasses, and mini-bypasses, could provide traffic 
relief;
    (14) The effectiveness of TDM/TSM in reducing traffic under a no 
build or partial build alternative. If a full build is permitted, what 
TDM/TSM solutions should be implemented and why?;
    (15) Information on the current mitigation plan and whether it 
would replace the functions and values of the aquatic habitats 
destroyed or degraded;
    (16) The potential for a different or supplemental mitigation plan 
which could reduce the direct and indirect impacts of the NHCH to an 
environmentally acceptable level. Mitigation could involve avoidance, 
by bridging for example, additional wetland creation, habitat 
preservation, additional water quality mitigation measures, watershed 
and aquifer preservation, up-front success requirements or other 
factors. Recommendations of appropriate sites are encouraged.
    (17) The current preservation package and additional preservation 
options, and whether the protection could offset the likely secondary 
and cumulative impacts of the highway.
    The record will remain open for comments until December 6, 1994. 
All comments will be fully considered in reaching a decision to either 
withdraw the proposed determination or forward to EPA Headquarters a 
recommended determination to prohibit or restrict the use of the 
wetlands as a disposal site for construction of Nashua-Hudson 
Circumferential Highway.

For further information contact: Mr. Mark J. Kern, U.S. E.P.A., JFK 
Federal Building, WWP, Boston, MA 02203-2211, (617) 565-4426.
John P. DeVillars,
Regional Administrator, New England Region.
[FR Doc. 94-26510 Filed 10-25-94; 8:45 am]
BILLING CODE 6560-50-P