[Federal Register Volume 74, Number 143 (Tuesday, July 28, 2009)]
[Notices]
[Pages 37219-37221]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17928]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8932-9]


Modification of the 1985 Clean Water Act Section 404(c) Final 
Determination for Bayou aux Carpes in Jefferson Parish, LA

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: This is a notice of EPA's Modification of the 1985 Clean Water 
Act Section 404(c) Final Determination for Bayou aux Carpes to allow 
for the discharge of dredged or fill material for the purpose of the 
construction of the West Closure Complex as part of the larger flood 
protection project for the greater New Orleans area. EPA believes that 
this Final Determination for modification achieves a balance between 
the national interest in reducing overwhelming flood risks to the 
people and critical infrastructure of south Louisiana while minimizing 
any damage to the Bayou aux Carpes CWA Section 404(c) site to the 
maximum degree possible in order to avoid unacceptable adverse effects.

DATES: Effective Date: The effective date of the Final Determination 
for Modification was May 28, 2009.

ADDRESSES: U.S. Environmental Protection Agency, Office of Water, 
Wetlands Division, Mail code 4502T, 1200 Pennsylvania Ave, NW., 
Washington, DC 20460. The following documents used in the Bayou aux 
Carpes modification are listed on the EPA Wetlands Division Web site at 
http://www.epa.gov/owow/wetlands/regs/404c.html: New Orleans District 
of the Corps letter dated November 4, 2008, requesting that EPA modify 
the Bayou aux Carpes CWA Section 404(c) designation; Public Notice of 
Proposed Determination to modify the Bayou aux Carpes CWA Section 
404(c) designation published in the Federal Register on January 14, 
2009; April 2, 2009, Recommended Determination (RD) for modification of 
the Bayou aux Carpes 404(c) action; and the May 28, 2009, Modification 
of the 1985 Clean Water Act Section 404(c) Final Determination for 
Bayou aux Carpes. Additional documents that are related to the Bayou 
aux Carpes modification can be located on the U.S. Army Corps of 
Engineers New Orleans District Web site at http://www.nolaenvironmental.gov/projects/usace_levee/IER.aspx?IERID=12.
    Publicly available document materials are available either 
electronically through http://www.regulations.gov or in hard copy at 
the Water Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., 
NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 
4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number for the Water Docket is (202) 566-2426.

FOR FURTHER INFORMATION CONTACT: Mr. Clay Miller at (202) 566-1365 or 
by e-mail at [email protected]. Additional information and copies of 
EPA's Final Determination for Modification are available at http://www.epa.gov/owow/wetlands/regs/404c.html or http://www.nolaenvironmental.gov/projects/usace_levee/IER.aspx?IERID=12.

SUPPLEMENTARY INFORMATION: Section 404(c) of the Clean Water Act (CWA) 
(33 U.S.C. 1251 et seq) authorizes EPA to prohibit, restrict, or deny 
the specification of any defined area in waters of the United States 
(including wetlands) as a disposal site for the discharge of dredged or 
fill material whenever it determines, after notice and opportunity for 
public hearing, that such discharge into waters of the United States 
will have an unacceptable adverse effect on municipal water supplies, 
shellfish beds and fishery areas (including spawning and breeding 
areas), wildlife, or recreational areas.
    Congress directed the U.S. Army Corps of Engineers (Corps) to 
enhance the existing Lake Pontchartrain and Vicinity Hurricane 
Protection project and the West Bank and Vicinity Hurricane Protection 
project to the 100-year level of protection. One section of this much 
larger project is within the Bayou aux Carpes area that is subject to a 
1985 EPA CWA Section 404(c) action that prohibited the discharge of 
dredged or fill material in the Bayou aux Carpes site south of the New 
Orleans metro area. On November 4, 2008, the New Orleans District of 
the Corps requested a modification of the Bayou aux Carpes CWA Section 
404(c) designation to accommodate discharges to the Bayou aux Carpes 
wetlands associated with the proposed enhanced levee system in 
Jefferson Parish, Louisiana.
    In evaluating the Corps of Engineers proposal for modification of 
the 1985 Bayou aux Carpes CWA Section 404(c) Final Determination, the 
key elements of a Section 404(c) process were followed. These include a 
hearing and opportunity for the public to provide written comments, 
preparation and submittal of a Recommended Determination proposed by 
EPA Region 6 to EPA Headquarters, and a Final Determination for 
Modification issued by EPA Headquarters.

Background

    On October 16, 1985, EPA issued a Final Determination pursuant to 
Section 404(c) of the Clean Water Act restricting the discharge of 
dredged or fill material in the Bayou aux Carpes site, Jefferson 
Parish, Louisiana, based on findings that the discharges of dredged or 
fill material into that site would have unacceptable

[[Page 37220]]

adverse effects on shellfish beds and fishery areas (including spawning 
and breeding areas), wildlife, and recreational areas. EPA published a 
CWA Section 404(c) Final Determination prohibiting, with three 
exceptions, future discharges of dredged or fill material to wetlands 
into the Bayou aux Carpes site at 50 FR 47267 (November 15, 1985). The 
first exception was for discharges associated with the completion of 
the Corps modified design for the Harvey Canal--Bayou Barataria Levee 
Project. The second exception was for discharges associated with 
routine operation and maintenance of the Southern Natural Gas Pipeline. 
The third exception covered discharges associated with EPA approved 
habitat enhancement activities. The CWA Section 404(c) action was based 
upon a thorough record of investigations, including field surveys, 
remote sensing, and other technical analyses conducted by three EPA 
facilities, the U.S. Fish and Wildlife Service (USFWS), the National 
Park Service (NPS), and the Louisiana State University (LSU) Center for 
Wetland Resources.
    After completion of the Final Determination, several requests for 
modifications were reviewed by EPA. The one request that was granted 
was for an emergency exception to bury an existing pipeline deeper via 
horizontal drilling techniques as a response to unstable soil 
conditions and a leaking pipeline. Shell Pipe Line Corporation (Shell) 
petitioned EPA for reconsideration of exceptions identified in EPA's 
1985 Final Determination concerning the Bayou aux Carpes site on 
December 18, 1991. Shell requested a modification to the Final 
Determination in order to (1) temporarily discharge dredged or fill 
material associated with performing emergency work to relocate an 
existing below ground pipeline located in the restricted Section 404(c) 
area; and (2) exclude from the Bayou aux Carpes Section 404(c) 
restriction future discharges associated with routine operation and 
maintenance of this pipeline. On February 28, 1992, Shell's request for 
modification was approved by the EPA Assistant Administrator for Water 
on the basis that relocating the pipeline to non-wetlands was 
infeasible from the perspectives of engineering alternatives and public 
safety, the work would have only minimal and temporary impacts on the 
wetlands, and the work was essentially the same as that envisioned 
under the second exception granted in the 1985 Final Determination (57 
FR 3757).
    As a result of the residential, commercial, and industrial damage 
caused by Hurricanes Katrina and Rita in 2005, Congress directed the 
Corps to enhance the existing Lake Pontchartrain and Vicinity Hurricane 
Protection project and the West Bank and Vicinity Hurricane Protection 
project to the 100-year level of protection, as determined by the 
Federal Emergency Management Agency (FEMA). The overall Corps project 
to provide protection to southern Louisiana involves two large levee 
systems, the West Bank and Vicinity Hurricane Protection Project and 
the Lake Pontchartrain and Vicinity Hurricane Protection Project, and 
approximately 350 miles of earthen levees and floodwalls throughout 
five parishes in the New Orleans metropolitan area. One section of this 
much larger project is within the Bayou aux Carpes area. The Corps' 
proposal for providing increased hurricane and storm damage risk 
reduction for this area does not fall within one of the previously 
established exceptions to the Section 404(c) Final Determination. Since 
the construction of the Corps' project would result in discharges of 
dredged or fill material within the Bayou aux Carpes site, a request 
for modification of 1985 EPA's Final Determination was submitted for 
consideration and final decision.
    On November 4, 2008, the New Orleans District of the Corps 
requested a modification to the 1985 EPA action, which prohibited the 
discharge of dredged or fill material in the Bayou aux Carpes site 
south of the New Orleans metro area. The Corps requested that EPA 
modify the Bayou aux Carpes CWA Section 404(c) designation to 
accommodate discharges to the Bayou aux Carpes wetlands associated with 
the proposed enhanced levee system in Jefferson Parish, Louisiana. The 
project known as the West Closure Complex proposes the construction of 
a ``T-wall'' style floodwall in lieu of an earthen levee in order to 
minimize the footprint. A berm to protect the floodwall from barge 
collisions would be constructed on the water side of the floodwall and 
would serve as a maintenance access road. The floodwall would be built 
from the water side to reduce construction impacts.
    The placement of the wall within a 100 foot by 4,200 foot corridor 
on a previously impacted area of the Bayou aux Carpes site, along with 
the commitment by the Corps to augment the design as necessary to 
enhance the hydrology of the Bayou aux Carpes 404(c) area to offset any 
potential impacts due to construction, provides the most practical 
approach from an environmental perspective while ensuring the 100-year 
level of risk reduction is accomplished. Construction of the proposed 
action would impact less than 10 acres within the Bayou aux Carpes 
404(c) boundary.
    EPA carefully reviewed the proposal and the information submitted 
by the New Orleans District of the Corps, comments received pursuant to 
the notice published in the Federal Register and public hearing held in 
New Orleans, and the existing Bayou aux Carpes administrative record. 
On January 14, 2009, EPA posted a notice in the Federal Register 
announcing a public comment period on the request by the New Orleans 
District of the Corps to amend the 1985 Bayou aux Carpes CWA Section 
4040(c) Final Determination. There were 25 written comments received 
from individuals and organizations that included opinions about whether 
the modification should be granted or denied, consideration of a 
project alternative that would avoid all impacts to the Bayou aux 
Carpes site, the need for a detailed mitigation plan to be included, 
the need to thoroughly research and plan mitigation and augmentation 
features, and the need for a long-term monitoring plan. A public 
hearing was held on February 11, 2009. Thirteen people spoke at the 
hearing, and raised issues about the larger plans for providing 
upgraded hurricane and storm damage risk reduction for a portion of the 
West Bank and Vicinity Hurricane Protection Levee system as well as 
whether EPA should grant the modification.

Conclusion

    The West Closure Complex project sited on the Bayou aux Carpes area 
is a part of a much larger project with the intent to reduce flood 
risks to the 250,000 people living on the west bank of the Mississippi 
River and to infrastructure supporting the greater New Orleans area by 
building a more resilient and reliable storm damage and risk reduction 
system, as directed by Congress. In an effort to reconcile the 
potentially conflicting goals of increased flood protection and 
ecological protection, the Corps and EPA worked closely together and 
with other Federal partners, State and local agencies, and many 
stakeholders in an effort to understand fully the possibilities for 
accommodating these dual objectives. Having worked closely with the 
Corps and other resource agencies on the evaluation of the 
environmental aspects of this segment of the overall West Bank and 
Vicinity project upgrade, EPA agreed with the Corps' conclusion that

[[Page 37221]]

there is no reasonable and less environmentally damaging practicable 
alternative for achieving the Congressional directive than to locate a 
sector gate adjacent to the Bayou aux Carpes CWA 404(c) site.
    In consideration of the above information, EPA believes that 
compelling circumstances justify a modification of the 1985 Bayou aux 
Carpes CWA Section 404(c) designation, that there are no less 
environmentally damaging practicable alternatives that would adequately 
address those circumstances, and that all feasible means of minimizing 
adverse wetland effects to the Bayou aux Carpes site will be 
implemented. Therefore, EPA is modifying the 1985 Bayou aux Carpes CWA 
404(c) Final Determination with conditions to allow for discharges 
associated with construction of the West Closure Complex on the Bayou 
aux Carpes site as described in the Corps' November 4, 2008, request 
for modification. EPA believes that this Final Determination for 
modification achieves a balance between the national interest in 
reducing overwhelming flood risks to the people and critical 
infrastructure of south Louisiana while minimizing any damage to the 
Bayou aux Carpes CWA Section 404(c) area to the maximum degree possible 
in order to avoid unacceptable adverse effects.

    Dated: July 21, 2009.
Michael H. Shapiro,
Acting Assistant Administrator for Water.
[FR Doc. E9-17928 Filed 7-27-09; 8:45 am]
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