[Federal Register Volume 60, Number 177 (Wednesday, September 13, 1995)]
[Notices]
[Pages 47568-47570]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22724]



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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5295-2]


Modification of the March 21, 1988, Russo Development Corporation 
Section 404(c) Final Determination

AGENCY: U.S. Environmental Protection Agency.

ACTION: Notice of Modification of Clean Water Act (CWA) Section 404(c) 
Final Determination for Russo Development Corporation.

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SUMMARY: Notice is hereby given that the U.S. Environmental Protection 
Agency (EPA) has modified the March 21, 1988, CWA Section 404(c) Final 
Determination concerning the Russo Development Corporation (Russo) site 
located in the Hackensack Meadowlands (Meadowlands), Bergen County, New 
Jersey. This modification allows Russo to seek authorization for the 
discharge of dredged or fill material into a 13.5-acre tract containing 
wetlands, provided Russo deeds over for preservation and enhancement a 
16.3 acre property located in Ridgefield, New Jersey, and provides 
$700,000 for wetland enhancement activities at sites in the 
Meadowlands. Any discharges of dredged or fill material to wetlands on 
the Russo site must be authorized by the U.S. Army Corps of Engineers 
under Section 404 of the Clean Water Act and/or Section 10 of the 
Rivers and Harbors Act.

EFFECTIVE DATE: The amendment was effective on September 7, 1995.

FOR FURTHER INFORMATION CONTACT: John Ettinger (EPA) at (202) 260-1190.

SUPPLEMENTARY INFORMATION: CWA Section 404(c) authorizes EPA to 
prohibit, deny, restrict, or withdraw the specification of a site for 
the disposal of dredged or fill material. On March 21, 1988, EPA's 
Assistant Administrator (AA) for Water rendered a final determination 
which prohibited the designation of 57.5 acres of wetlands as a 
disposal site for fill material. These wetlands were and are currently 
owned by the Russo Development Corporation (Russo), and are located in 
the Hackensack Meadowlands in Carlstadt, Bergen County, New Jersey. The 
Final Determination pertained to a proposal by Russo to maintain 52.5 
acres of unauthorized fill (of which 44 acres have been built upon) and 
to fill a remaining five acres of wetlands of a 13.5-acre tract to 
complete a warehouse complex. The reason cited by the AA for Water for 
the 1988 404(c) determination was that the discharge of fill would have 
unacceptable adverse effects, both individually and cumulatively, on 
wildlife in the Meadowlands. The 1988 Final Determination stated that 
the Russo site was/is very valuable to wildlife from a site specific 
and cumulative standpoint and, that the compensatory mitigation 
proposed by Russo at that time would not adequately replace those 
wildlife values that had been and were anticipated to be lost. In the 
Final Determination, however, EPA indicated that its Section 404(c) 
prohibition could be reconsidered upon demonstration that the adverse 
effects to wildlife have been satisfactorily addressed.
    Litigation was undertaken by Russo with regard to EPA's and the 
Army Corps of Engineers' (Corps) actions regarding the site. The 
litigation history is summarized in the notice of proposed amendment of 
the 404(c) determination (See 60 FR 15913).
    The Corps, EPA, and Russo have engaged in discussions to resolve 
issues arising under Section 404 with regard to the Russo site. As a 
result of these discussions, Russo agreed to provide additional 
mitigation. Based on this additional mitigation, EPA proposed to amend 
the 404(c) final determination on March 28, 1995. In particular, Russo 
has agreed to deed over, for preservation and enhancement, an 
approximately 16-acre parcel of wetlands in Ridgefield, NJ, located 
approximately 1.5 miles from the subject Russo sites. Russo also agreed 
to provide $700,000 for the purpose of enhancing wetlands both at this 
site and at sites contained in a Hackensack Meadowlands Development 
Commission (HMDC) mitigation bank, as appropriate. This mitigation 
proposal is designed to compensate for wetlands functions lost as a 
result of the past and future fill activities on both Russo sites. 
Based on the increased mitigation, EPA proposed to amend the 
prohibition of the discharge of fill material on the 13.5-acre Russo 
site to allow for designation of the subject property as a disposal 
site, provided the compensatory mitigation conditions are met. After 
final amendment of the Final Determination, Russo would seek an after-
the-fact authorization from the Corps for the past discharge of fill 
material into the subject wetlands for the purpose of constructing a 
warehouse complex, as well as authorization for the future discharge of 
fill material into remaining wetlands for additional development 
activities.
    In the Federal Register notice proposing to amend the 404(c) 
prohibition, EPA requested comments on allowing for restricted use of 
the Russo site based on the compensatory mitigation proposal discussed 
above. (A more complete background on this case, as well as a detailed 
description of a possible compensation scenario that could be 
implemented under the proposed amendment can be found in the March 28, 
1995, notice.) In particular, EPA was interested in comments relating 
to the proposed compensatory mitigation and its ability to replace the 
wildlife values lost as a result of past fill activities, as well as 
anticipated losses due to proposed discharges in the subject wetlands. 
EPA also mailed copies of the Federal Register notice to parties listed 
on the U.S. Army Corps of Engineers mailing list for the Hackensack 
Meadowlands District and to recipients of an October 14, 1987, public 
notice scheduling a public hearing for the Russo Section 404(c) action.
    EPA received three written comments in response to the March 28, 
1995, Federal Register notice. These comments are summarized below, 
along with EPA's responses to these comments.
    The Pleasantville Field Office of the U.S. Fish and Wildlife 
Service (Service) opposed the proposed action on several grounds. The 
Service contended that it would adversely affect fish and wildlife 
resources by contributing to the continuing loss of regionally 
significant habitat, and would be contrary to the objective of 
maintaining and restoring regional biodiversity. The Service emphasized 
that the Meadowlands is a corridor for migratory birds, as well as a 
large island of habitat in an intensely urbanized area that plays a 
critical role in maintaining the region's biodiversity.
    The Service also commented that the draft Environmental Impact 
Statement (DEIS) on the proposed Special Area Management Plan (SAMP) 
for the Hackensack Meadowlands fails to articulate specific fish and 
wildlife management objectives for target species 

[[Page 47569]]
or species groups. This lack of clearly articulated management 
objectives, according to the Service, makes it impossible to evaluate 
the success of individual wetland enhancement projects or the 
cumulative effects of all such projects on the Hackensack Meadowlands 
ecosystem.
    The Service also contended that the proposed compensatory 
mitigation is not likely to replace the wetland functions and values 
lost as a result of Russo's fill activity because the wetlands filled 
by Russo provided high value fish and wildlife habitat, while the 
wetlands to be enhanced are already of moderate to high value for fish 
and wildlife. The Service recommended that the original prohibition 
under Section 404(c) on the 13.5 acre parcel should remain intact.
    Response: EPA agrees that the Meadowlands is a significant habitat 
for fish and wildlife. The desire to protect the remaining wetlands in 
the Meadowlands motivated EPA, the Corps, the Hackensack Meadowlands 
Development Commission (HMDC), the New Jersey Department of 
Environmental Protection (NJDEP) and the National Oceanic and 
Atmospheric Administration (NOAA) to join as partners to develop the 
SAMP, which is a 20-year plan that provides for natural resource 
protection, and reasonable economic growth within the Meadowlands. The 
proposed SAMP includes measures for the permanent protection and 
enhancement of about 90% of the remaining wetland acreage in the 
Meadowlands, along with the measures proposed for upland and wetland 
habitat improvement.
    The DEIS is intended to be programmatic in nature, and the 
mitigation plan and strategies contained therein are designed to meet 
the program goal agreed to by the partner agencies, i.e., no net loss 
of wetland functions within the Meadowlands District. The targeting of 
a wetlands mitigation effort toward habitat enhancement for particular 
species or species groups is more appropriately performed at the site-
specific level, on a case-by-case basis, as mitigation sites are 
developed and not as part of the DEIS. When a specific site is chosen 
to implement mitigation consistent with the proposed action, specific 
species or species groups could be targeted as part of the mitigation 
strategy. EPA will consider all comments regarding the SAMP and DEIS, 
including those submitted by the Service.
    EPA believes, however, that the compensatory mitigation plan 
proposed by Russo will replace the fish and wildlife values lost as a 
result of the past and future fill activities. The Advanced 
Identification of the Hackensack Meadowlands, in which the Service was 
a participant, as well as additional, detailed studies performed in 
conjunction with the SAMP, clearly indicate that not all habitat in the 
Meadowlands is of moderate to high value for wildlife. If a mitigation 
bank site is established on a site with low habitat value, appropriate 
enhancement of the site would provide the requisite increase in fish 
and wildlife value needed to offset the loss in value due to Russo's 
activity. Appropriate targeting of mitigation bank sites by HMDC, in 
coordination with EPA, will help to ensure that this goal is achieved. 
Moreover, the example provided in the March 28, 1995 notice is a 
mitigation strategy that could offset the loss of wildlife value from 
Russo's activity.
    The State of New Jersey Department of Environmental Protection 
provided comments on the proposal in the form of two letters. The first 
letter dated April 21, 1995, objected to the modification. However, a 
second letter dated June 15, 1995, expressly superseded the 
Department's earlier letter. In this letter, the State indicated that 
the proposed settlement and modification of the 404(c) prohibition 
would serve to satisfy all State regulatory concerns for both the 
Carlstadt site and the Ridgefield site, and expressed their full 
support for both actions.
    Mr. Henry Gluckstern, a private citizen, wrote in objection to the 
proposed modification of the 404(c) prohibition, contending that the 
alternative remedial approaches outlined in the March 28 notice should 
be rejected as entirely inadequate and that ``nothing in the data 
supplied in the notice supports an actual impossibility of restoring 
the land to its original wetland values.'' Mr. Gluckstern opined that 
the proposed compensatory mitigation will not achieve true biological 
equivalency, and that as such, it should be rejected.
    Response: The information contained in the March 28, 1995, public 
notice on the proposed amendment provided a detailed chronology of the 
history of activity on the 13.5 acre tract. For the reason explained 
below, EPA believes that restoration of the Russo site to its original 
condition with attendant wildlife values is not likely to be possible. 
Most of the tract was excavated, with several feet of the original 
organic soil and ``meadow mat'' being removed. Subsequently, 
approximately 8.5 acres of the tract were filled with shot rock varying 
in size from cobbles to boulders. Two to three acres of the remaining 
five acres of wetlands on this site subsequently ponded.
    The loss of the original substrate, along with its seed bank, would 
result in a complete change in any plant community that could establish 
and be naturally sustained if the fill were removed. The establishment 
of a pond on the excavated portion of the five acre site, which was not 
present in the original wetlands complex, is direct evidence it would 
be unlikely that the original wetlands conditions could be established 
there naturally. In addition, the placement of several feet of rock on 
8.5 acres of the site has resulted in compaction of the remnants of the 
original soil on that site. Evidence of this, based on excavation of 
the fill performed in 1990, are part of the records of this case.
    Moreover, fill removal would permanently change the drainage 
characteristics of the soil. In addition, the elevation of the remnant 
original soil would be lower than its original level as a result of the 
compaction of the fill. As a result of these changes, along with the 
loss of the organic surface substrate, the conditions at the site would 
be very different from those that originally existed and supported the 
historic complex of wetland types on the site. In particular, the wet-
meadow complex which existed on site is typically a ground-water fed 
system, and therefore very dependent on both the drainage 
characteristics of the substrate and the elevation of the wetland. Even 
if appropriate seeding/planting could take place, and organic substrate 
could be added to raise the elevation of the site to its original 
conditions, the change in the lower soils would still be likely to 
influence site hydrology, on which such a wetland system is dependent. 
Consequently, EPA has determined that the data do not support a 
likelihood of restoring the site to its original wetlands values.
    The contention that no true biological equivalence for the wildlife 
values lost from the site can be established is difficult to address, 
because the commenter does not define how he is applying the term 
equivalence. Actual habitat can never be exactly replicated from one 
site to another, because natural sites rarely have identical (although 
they frequently have similar) physical, geological, and biological 
conditions. Likewise, the determinants of community structure are the 
products of a complex interaction of both existing ecological 
conditions and stochastic events, and thus will vary from one site to 
another. However, appropriate conditions to support given wildlife 
species or groups can be established, 

[[Page 47570]]
particularly if the habitat requirements of the desired species or 
communities are broad. The term equivalence, when applied to individual 
species, generally refers to two different species which perform the 
same general ecological role in two different geographic areas. 
Ecologically equivalent communities, likewise, may have different 
species; those species, however, would be performing similar roles and 
the communities would have the same general community structure and 
dynamics, although those communities would be in two different 
locations. Given these assumptions, a community which is ecologically 
equivalent to the Russo site would be considered to be successfully 
established if it contains similar features and supports a similar 
number of species which perform the same general roles as those species 
which were likely to have been present on the site.
    The March 28, 1995 notice described a possible combination of 
mitigation strategies which, if implemented, would support similar 
wildlife species to those which used the Russo tracts prior to Russo's 
activities. For example, the excavation of ponds and/or channels would 
provide open water habitat adjacent to a natural windbreak (i.e., 
Phragmites). This activity would provide resting and feeding habitat 
for waterfowl and wading birds, especially overwintering black duck, 
Anas rubripes, (a U.S. Fish & Wildlife Service species of special 
concern) and a species of concern in the final determination of the AA 
for Water. The resulting habitat would therefore be similar habitat, 
and would provide support for the same species that may have used the 
Russo tracts. Likewise, the establishment of either a wet meadow or a 
high salt marsh would provide hunting habitat for northern harrier, 
Circus cyaneus, and other raptors, as well as game birds such as 
woodcock and pheasant. Thus, these activities could establish 
equivalent wildlife values to those lost from the Russo tracts. Those 
losses have been sustained for nearly ten years, and we believe that 
implementation of an appropriate mitigation strategy could only benefit 
the Meadowlands. We therefore continue to believe that the proposal 
could provide good compensation for wildlife values which were lost 
from the Russo tracts.
    It should be clarified that, under the terms of this 404(c) 
restriction, $700,000 would be provided by Russo to fund any 
appropriate mitigation at the Ridgefield parcel and any other locations 
selected out of the mitigation bank to be operated by HMDC. As 
discussed by EPA in the notice of the proposed 404(c) determination, 
effective mitigation could include enhancement activities at the 
Ridgefield site as well as other appropriate locations. The terms of 
the 404(c) restriction do not, however, specifically mandate how the 
money is to be allocated. If a mitigation plan is submitted 
demonstrating that greater environmental benefit would be obtained from 
enhancing sites other than the Ridgefield parcel, such a mitigation 
plan would be consistent with the 404(c) restriction. EPA will be 
involved in reviewing such a mitigation plan to ensure that it is 
appropriate taking into account the functions and values needed to 
compensate for the losses at the 13.5 and 44 acre sites. In addition, 
it is EPA's intent that, aside from incidental expenses associated with 
the development of an appropriate mitigation plan, the money provided 
by Russo to HMDC will be used for actual enhancement activities. 
Allocation of a portion of the funds for land acquisition, for example, 
would not be appropriate because it would make it difficult to achieve 
the degree of mitigation necessary to compensate for losses incurred at 
the Russo site.

Findings and Conclusions

    EPA has carefully reviewed Russo's proposed compensatory mitigation 
offer and the comments submitted in response to the proposed amendment 
of the 1988 Final Determination for the CWA Section 404(c) action. 
Based on this review, EPA concludes that the proposed compensatory 
mitigation adequately addresses the adverse effects to wildlife 
described in the Final Determination.
    As discussed above, given the extent and impact of Russo's 
activities on the 13.5-acre site, it is highly unlikely that suitable 
wetland conditions could be established on-site. Consequently, offsite 
mitigation is needed to compensate for the adverse effects to wildlife 
identified in the Final Determination.
    The providing of funds to HMDC's proposed mitigation bank for 
enhancement activities in the Meadowlands will ensure that such 
mitigation is provided. As a result, a prohibition on the placement of 
fill material is no longer necessary to prevent unacceptable adverse 
effects to wildlife. EPA is instead issuing a restriction under Section 
404(c) that allows specification of the Russo site as a disposal site 
for fill material conditional on performance of the mitigation steps 
specified in the modification below. EPA stated in the Federal Register 
notice proposing this amendment to its 404(c) action that this 
amendment be conditional on a binding agreement by Russo to perform the 
specified mitigation. This condition would be met through the 
imposition of binding conditions in a permit issued under Section 404 
by the Corps specifying that Russo must perform this specified 
mitigation in order for discharges of fill on this site to be 
authorized under Section 404.
    For these reasons, EPA concludes that it is appropriate to modify 
the original March 21, 1988, Final Determination to allow Russo to seek 
authorization to discharge dredged or fill material into the 13.5-acre 
site, provided that Russo implements the mitigation specified below 
(such mitigation could include the steps outlined in the proposed 
404(c) amendment or an equivalent mitigation plan). Any discharge 
activities to waters of the U.S. must be authorized pursuant to 
applicable permits issued by the Corps under Section 404 of the Clean 
Water Act and/or Section 10 of the Rivers and Harbors Act.

Modification

    The March 21, 1988, Clean Water Act Section 404(c) Final 
Determination for the Russo Development Corporation Site is hereby 
modified as follows:
    The prohibition imposed in the March 21, 1988, Final Determination 
is removed and a restriction is imposed upon specification of the site 
for the disposal of dredged or fill material. Under this restriction, 
the Russo Development Corporation may seek authorization from the U.S. 
Army Corps of Engineers for discharges of dredged or fill material into 
waters of the United States within the area previously prohibited by 
EPA, provided the terms of the authorization require Russo to (1) deed 
over for preservation and any appropriate enhancements, an 
approximately 16.3 acre parcel of wetlands located in Ridgefield, New 
Jersey; and, (2) provide funding in the amount of $700,000 for the 
purpose of enhancing wetlands in the Hackensack Meadowlands.

    Dated: September 7, 1995.
Robert Perciasepe,
Assistant Administrator for Water.
[FR Doc. 95-22724 Filed 9-12-95; 8:45 am]
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