[Federal Register Volume 88, Number 25 (Tuesday, February 7, 2023)]
[Notices]
[Pages 7951-7953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02521]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC701]


Notice of Availability of a Record of Decision for the Deepwater 
Horizon Oil Spill Louisiana Trustee Implementation Group Final Phase II 
Restoration Plan: #3.2 Mid-Barataria Sediment Diversion

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of availability (NOA); record of decision (ROD).

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SUMMARY: In accordance with the Oil Pollution Act of 1990 (OPA) and the 
National Environmental Policy Act of 1969 (NEPA), the Deepwater Horizon 
Oil Spill Final Programmatic Damage Assessment Restoration Plan and 
Final Programmatic Environmental Impact Statement (Final PDARP/PEIS), 
Record of Decision and Consent Decree, notice is hereby given that the 
Federal and State natural resource trustee agencies for the Louisiana 
Trustee Implementation Group (Louisiana TIG) have issued a Record of 
Decision (ROD) for the Louisiana Trustee Implementation Group Final 
Phase II Restoration Plan #3.2: Mid-Barataria Sediment Diversion 
Project (Final Phase

[[Page 7952]]

II RP #3.2) and accompanying NEPA analysis, as adopted, in the Final 
Environmental Impact Statement for the Proposed Mid Barataria Sediment 
Diversion Project, Plaquemines Parish (MBSD FEIS). The ROD sets forth 
the basis for the Louisiana TIG's OPA Natural Resources Damage 
Assessment (NRDA) decision to fund and implement the 75,000 cubic feet 
per second (cfs) capacity Mid-Barataria Sediment Diversion Project. 
This restoration will continue the process of restoring natural 
resources and services injured or lost resulting from the Deepwater 
Horizon (DWH) oil spill of 2010. The purpose of this notice is to 
inform the public of the availability of the Louisiana TIG's ROD for 
its combined OPA NRDA and NEPA decision.

ADDRESSES: Obtaining documents: You may download the ROD at http://www.gulfspillrestoration.noaa.gov. Alternatively, you may request a 
copy of the combined OPA NRDA and NEPA ROD.

FOR FURTHER INFORMATION CONTACT: National Oceanic and Atmospheric 
Administration--Mel Landry, NOAA Restoration Center, (301) 427-8711, 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    The DWH Trustees are:
     U.S. Department of the Interior (DOI), as represented by 
the National Park Service, U.S. Fish and Wildlife Service, and Bureau 
of Land Management;
     National Oceanic and Atmospheric Administration (NOAA), on 
behalf of the U.S. Department of Commerce;
     U.S. Department of Agriculture (USDA);
     U.S. Environmental Protection Agency (EPA);
     State of Louisiana Coastal Protection and Restoration 
Authority (CPRA), Oil Spill Coordinator's Office (LOSCO), Department of 
Environmental Quality (LDEQ), Department of Wildlife and Fisheries 
(LDWF), and Department of Natural Resources (LDNR).
    Building on the PDARP/PEIS, the Louisiana TIG began evaluating 
restoration strategies that could restore for injuries to natural 
resources in the Barataria Basin, which resulted in the Strategic 
Restoration Plan and Environmental Assessment #3: Restoration of 
Wetlands, Coastal, and Nearshore Habitats in the Barataria Basin, 
Louisiana (SRP/EA #3). In the SRP/EA #3, the Louisiana TIG ultimately 
determined that a combination of ``marsh creation and ridge restoration 
plus a large-scale sediment diversion would provide the greatest level 
of benefits to injured Wetlands, Coastal, and Nearshore Habitats and to 
the large suite of injured resources that depend in their life cycle on 
productive and sustainable wetland habitats'' (LA TIG, 2018, page 3-32) 
in the basin and in the broader northern Gulf of Mexico. In the SRP/EA 
#3, the Louisiana TIG also selected a Mid-Barataria sediment diversion 
(MBSD) as the specific sediment diversion project to move forward for 
further analysis.
    Since finalizing the SRP/EA #3, the Louisiana TIG evaluated a 
variety of potential alternatives for a large-scale sediment diversion 
in the Barataria Basin. The Final Phase II RP #3.2, along with the MBSD 
FEIS released simultaneously by the U.S. Army Corps of Engineers, New 
Orleans District (USACE CEMVN) and adopted by the Federal agencies of 
the Louisiana TIG, set forth the results of that evaluation.

Overview of the Selected Alternative 1, Mid-Barataria Sediment 
Diversion Project

    In the Final Phase II RP #3.2, the Louisiana TIG selected its 
preferred alternative (Alternative 1, MBSD Project) under the DWH 
Louisiana Restoration Area Wetlands, Coastal and Nearshore Habitats 
restoration type. The selected alternative consists of a controlled 
sediment and freshwater intake diversion structure in Plaquemines 
Parish on the right descending bank of the Mississippi River at River 
Mile (RM) 60.7 just north of the Town of Ironton. The outfall area for 
sediment, freshwater, and nutrients conveyed from the river is located 
within the Mid-Barataria Basin. The area of the MBSD Project includes 
the hydrologic boundaries of the Barataria Basin and the lower 
Mississippi River Delta Basin, also known as the birdfoot delta. The 
Mississippi River itself, beginning near RM 60.7 and extending to the 
mouth of the river, is also included in the MBSD Project area. The 
diversion will have a maximum diversion flow of 75,000 cfs, which would 
occur when the Mississippi River gauge at Belle Chase reaches 1,000,000 
cfs or higher. The diversion will operate at up to 5,000 cfs (base 
flow) when the river is below 450,000 cfs at Belle Chase; at river 
flows above 450,000 cfs, the diversion will be opened fully. At the 
downstream end of the diversion channel, an engineered ``outfall 
transition feature'' will be constructed to guide and disperse the 
channel flow into the Barataria Basin. The diversion is projected to 
increase land area, including emergent wetlands and mudflats, in the 
Barataria Basin across the 50-year analysis period relative to natural 
recovery, with a maximum increase of 17,300 acres (approximately 7000 
hectares) in 2050, at the approximate mid-point of the 50-year analysis 
period.
    The cost of the selected Alternative 1, MBSD Project at the time of 
the Draft Phase II RP #3.2 was anticipated to be approximately $2 
billion. Since the publication of the Draft Phase II RP #3.2, 
substantial increases in the general inflation rate as well as 
corresponding increases to most cost components of the MBSD Project, 
including but not limited to construction materials, construction 
activities, and wages, have occurred. CPRA has experienced an average 
25 percent increase in costs on its recent restoration projects. CPRA 
will not know the amount of the cost increase for the MBSD Project 
until it completes negotiations for a Guaranteed Maximum Price for 
project construction with the Construction Management at Risk 
contractor. In light of this uncertainty as to total project costs, the 
Louisiana TIG intends to limit its contribution to the overall project 
costs to $2,260,000,000. This will help ensure that DWH settlement 
funding would be available to construct all projects currently under 
consideration as well as for future large-scale wetlands, coastal, and 
nearshore habitat restoration projects not yet proposed. The cap will 
also ensure that planned DWH payments to the Louisiana TIG will be 
sufficient to cover project costs as it continues to be designed and 
implemented. To ensure the Monitoring and Adaptive Management (MAM) and 
Mitigation and Stewardship Plans are fully funded, the Louisiana TIG's 
contribution will cover the majority of MAM associated costs (a NRDA 
investment of up to $124,000,000, including contingency funding) and 
the Mitigation and Stewardship costs (currently estimated at 
$378,000,000, including contingency funding). A portion of the 
engineering and design costs has been paid by the National Fish and 
Wildlife Federation's Gulf Environmental Benefit Fund. The remaining 
Louisiana TIG contribution will be applied toward other project cost 
categories. CPRA has committed to providing funding for all costs that 
exceed the Louisiana TIG's funding cap of $2,260,000,000.
    The Louisiana TIG fully evaluated a smaller-capacity diversion with 
a maximum capacity of 50,000 cfs (Alternative 2). The Trustees found 
that such a diversion would provide substantially less benefit in marsh 
preservation and restoration, with only

[[Page 7953]]

a small reduction in adverse impacts and a slight cost reduction.
    The Louisiana TIG also fully evaluated a larger-capacity diversion 
with a maximum capacity of 150,000 cfs (Alternative 3). While the marsh 
creation benefits of such a large diversion would be significantly 
greater, the collateral injuries would also increase to levels 
unacceptable to the Trustees.
    Three other alternatives (Alternatives 4-6) would divert the same 
flow (cfs) capacities as described above for Alternatives 1-3 and would 
include marsh terrace outfall features. While providing some benefits, 
the outfall feature alternatives do not substantially change the extent 
to which the corresponding alternatives with similar capacities and 
without terraces meet the Louisiana TIG's goals and objectives for the 
project.
    The Louisiana TIG is committed to continuing efforts to restore the 
resources that would be adversely affected by the selected MBSD 
Project, many of which were also injured by the DWH oil spill. The 
selected MBSD Project includes a MAM Plan and a Mitigation and 
Stewardship Plan. The Project also includes a Dolphin Intervention 
Plan, which was developed in response to anticipated impacts and public 
comments. These plans serve as an integral part of the proposed 
restoration action. The MAM Plan includes (1) methods for specific 
types of monitoring, (2) key performance measures/indicators for 
assessing the success of the Proposed MBSD Project in meeting its 
objectives, and (3) decision criteria and processes for modifying 
(``adapting'') current or future management actions. The Mitigation and 
Stewardship Plan includes actions to help to address collateral impacts 
of construction and operation of the Proposed MBSD Project. The Dolphin 
Intervention Plan outlines a spectrum of potential response actions for 
dolphins affected by the operation of the Proposed MBSD Project, 
ranging from recovery/relocation to no intervention to euthanasia. As 
part of the Project, CPRA would have responsibility for ensuring 
implementation of the measures outlined in each of these Plans.
    While the Louisiana TIG rejected the No-Action-Alternative for this 
Final Phase II RP #3.2, the OPA analysis integrated information about 
the MBSD FEIS No-Action Alternative (40 CFR 1502.14(c)) because it 
provided a baseline against which the benefits and collateral injuries 
of the selected MBSD Project and its alternatives were compared.
    The Louisiana TIG solicited public comment on the Draft RP for a 
total of 90 days between March 5, 2021 and June 3, 2021 (86 FR 12915, 
March 5, 2021). The Louisiana TIG held three public meetings to 
facilitate public understanding of the document and provide opportunity 
for public comment. The Louisiana TIG actively solicited public input 
through a variety of mechanisms, including convening virtual public 
meetings, distributing electronic communications, and using the 
Trustee-wide public website and database to share information and 
receive public input. The Louisiana TIG considered the public comments 
received, which informed the Louisiana TIG's analysis of alternatives 
in the Final RP. The Final Phase II RP #3.2 includes a summary of the 
comments received and responses to those comments. A Notice of 
Availability of the Final Phase II RP #3.2 was published in the Federal 
Register on September 23, 2022 (87 FR 58067).
    Trustees typically choose to combine a restoration plan and the 
required NEPA analysis into a single document (33 CFR 990.23(a), 
(c)(1)). In this case, the Final Phase II RP #3.2 does not include 
integrated NEPA analysis. This is because prior to evaluation of the 
Proposed MBSD Project by the Louisiana TIG as a restoration project 
under OPA, the USACE CEMVN initiated scoping for the MBSD Project EIS 
based on a permit application for the Project by CPRA. To increase 
efficiency, reduce redundancy, and be consistent with Federal policy 
and 40 CFR 1506.3, the four Federal Trustees in the Louisiana TIG 
decided to participate as cooperating agencies in the development of a 
single MBSD FEIS. As the lead agency, the USACE CEMVN has primary 
responsibility for preparing the MBSD FEIS (40 CFR 1501.5(a)). The 
Louisiana TIG has relied on the MBSD FEIS to evaluate potential 
environmental effects of the MBSD Project and its alternatives 
evaluated in the Final Phase II RP #3.2.
    Based on review of the analysis and in accordance with 40 CFR 
1506.3 (1978), each of the Federal trustees of the Louisiana TIG 
adopted the MBSD FEIS to satisfy its independent NEPA requirements 
related to its decision to fund and implement the selected MBSD Project 
pursuant to OPA 15 CFR 990 et seq. Furthermore, based on our 
determination of the sufficiency of the USACE's Final MBSD EIS, the 
Federal agencies of the Louisiana TIG determined that it was 
appropriate to adopt the Final MBSD EIS without the need for 
recirculation in accordance with 40 CFR 1506.3 (1978).

Administrative Record

    The documents included in the Administrative Record can be viewed 
electronically at the following location: http://www.doi.gov/deepwaterhorizon/adminrecord.
    The DWH Trustees opened a publicly available Administrative Record 
for the NRDA for the Deepwater Horizon oil spill, including restoration 
planning activities, concurrently with publication of the 2011 Notice 
of Intent to Begin Restoration Scoping and Prepare a Gulf Spill 
Restoration Planning PEIS (pursuant to 15 CFR 990.45). The 
Administrative Record includes the relevant administrative records 
since its date of inception. This Administrative Record is actively 
maintained and available for public review and includes the 
administrative record for the RP #3.2.

Authority

    The authority of this action is the Oil Pollution Act of 1990 (33 
U.S.C. 2701 et seq.), the implementing NRDA regulations found at 15 CFR 
part 990, and NEPA (42 U.S.C. 4321 et seq.).

    Dated: February 1, 2023.
Carrie Diane Robinson,
Director, Office of Habitat Conservation, National Marine Fisheries 
Service.
[FR Doc. 2023-02521 Filed 2-6-23; 8:45 am]
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