[Federal Register: September 19, 2008 (Volume 73, Number 183)]
[Notices]
[Page 54398-54400]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19se08-52]
[[Page 54398]]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-R04-OW-2008-0179; FRL-8717-6]
Final Determination of the Assistant Administrator for Water
Pursuant to Section 404(c) of the Clean Water Act Concerning the
Proposed Yazoo Backwater Area Pumps Project in Issaquena County, MS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: This is a notice of EPA's Final Determination pursuant to
section 404(c) of the Clean Water Act to prohibit the specification of
subject wetlands and other waters of the United States in Issaquena
County, MS, as a disposal site for the discharge of dredged or fill
material for the purpose of construction of the proposed Yazoo
Backwater Area Pumps Project, i.e., Plan 5 in the U.S. Army Corps of
Engineers' (the Corps) Final Supplemental Environmental Impact
Statement (FSEIS) for the Yazoo Backwater Area Project, as well as
FSEIS Plans 3, 4, 6, and 7, and Modified Plan 6 (proposed by the Corps
after publication of the FSEIS). EPA's determination is based upon a
finding that the discharge of dredged or fill material associated with
the construction and operation of these projects would result in
unacceptable adverse effects on fishery areas and wildlife.
DATES: Effective Date: The effective date of the Final Determination is
August 31, 2008.
ADDRESSES: U.S. Environmental Protection Agency, Office of Water,
Wetlands Division, Mail code 4502T, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460. EPA has established a docket for this action
under Docket ID No. EPA-R04-OW-2008-0179. All documents in the docket
are listed on the http://www.regulations.gov Web site. Although listed
in the index, some information is not publicly available, e.g., CBI or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
Internet and will be publicly available only in hard copy form.
Publicly available docket 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: Ms. Tanya A. Code at (202) 566-1063 or
by e-mail at code.tanya@epa.gov or Mr. Palmer F. Hough at (202) 566-
1374 or by e-mail at hough.palmer@epa.gov. Additional information and
copies of EPA's Final Determination are available at the following Web
site: http://www.epa.gov/404c/.
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.
EPA's regulations for implementing section 404(c) are set forth in
40 CFR part 231. Four major steps in the process are: (1) The Regional
Administrator's notice to the U.S. Army Corps of Engineers (the Corps),
the property owner, and the applicant (and/or project proponent) of the
intention to initiate the section 404(c) process; (2) the Regional
Administrator's publication of a Proposed Determination to withdraw,
deny, restrict, or prohibit the use of the site, soliciting public
comment and offering an opportunity for a public hearing; (3) the
Regional Administrator's recommendation to the Assistant Administrator
for Water at EPA Headquarters to withdraw, deny, restrict, or prohibit
the use of the site (Recommended Determination); and, (4) the Assistant
Administrator for Water's Final Determination to affirm, modify, or
rescind the Regional recommendation.
Pursuant to section 404(c), EPA initiated a CWA section 404(c)
review of the proposed Yazoo Backwater Area Pumps Project on February
1, 2008. The Yazoo Backwater Area Pumps Project is a Corps Civil Works
project designed to address flooding concerns in a 630,000 acre area
situated between the Mississippi and Yazoo Rivers in west-central
Mississippi (Yazoo Backwater Area). The project is represented as Plan
5 in the Corps' FSEIS (published in November 2007). The primary
component of this project is a 14,000 cubic feet per second (cfs)
pumping station that would pump surface water out of the Yazoo
Backwater Area during high water events on the Mississippi River. The
project also includes 10,662 acres of reforestation of agricultural
land to compensate for the adverse environmental impacts associated
with the project, and up to 40,571 acres of reforestation of
agricultural land to provide potential environmental benefits.
According to the Corps, the Yazoo Backwater Area contains between
150,000 to 229,000 acres of wetlands, as well as an extensive network
of streams, creeks, and other aquatic resources. Extensive information
collected on the Yazoo Backwater Area demonstrates that it includes
some of the richest wetland and aquatic resources in the Nation. These
include a highly productive floodplain fishery, substantial tracts of
highly productive bottomland hardwood forests that once dominated the
Lower Mississippi River Alluvial Valley (LMRAV), and important
migratory bird foraging grounds. These wetlands provide important
habitat for an extensive variety of wetland dependent animal and plant
species, including the federally protected Louisiana black bear and
pondberry plant. In addition to serving as critical fish and wildlife
habitat, project area wetlands also provide a suite of other important
ecological functions. These wetlands protect and improve water quality
by removing and retaining pollutants, temporarily store surface water,
maintain stream flows, and support aquatic food webs by processing and
exporting significant amounts of organic carbon. As stated in the
FSEIS, ``The lands in the lower Mississippi Delta are noted for high
value fish and wildlife resources. The area serves as an integral part
of the economic and social life of local residents and sportsmen from
around the Nation'' (FSEIS, Appendix 1--Mitigation, page 1-29).
The construction and operation of the proposed pumps would
dramatically alter the timing, and reduce the spatial extent, depth,
frequency, and duration of time that wetlands within the project area
are inundated. After extensive evaluation of the record for this
project, EPA has determined that these large-scale hydrologic
alterations would significantly degrade the critical ecological
functions provided by approximately 67,000 acres of wetlands in the
Yazoo Backwater Area, including those functions that support wildlife
and fisheries resources.
During the initial consultation period with the Corps and the
Mississippi
[[Page 54399]]
Board of Levee Commissioners (the project sponsor), the Corps offered
two alternatives to the proposed project to reduce wetland impacts. One
of these alternatives is Plan 6 from the FSEIS, and the other is a
modified version of Plan 6. Both of these alternatives retain the
14,000 cfs pump station, but include modifications to the pump-on
elevation and the amount of compensatory mitigation and reforestation
as compared to Plan 5. After discussions with the Corps and following
careful consideration of the two alternatives, EPA is concerned that
neither proposal would reduce impacts to an acceptable level.
In March 2008, EPA Region IV published a proposal (i.e., Proposed
Determination) to prohibit or restrict the use of certain waters of the
United States as disposal sites for the discharge of dredged or fill
material in connection with the construction of the proposed Yazoo
Backwater Area Pumps Project (73 FR 14806, March 19, 2008). EPA Region
IV solicited public comments on the Proposed Determination until May 5,
2008. EPA received approximately 47,600 written comment letters,
including approximately 1,500 individual comment letters and 46,100
mass mailers. Nearly all of the comment letters (99.9 percent) urged
EPA to prohibit discharges to waters of the United States associated
with the proposed pumps project. A public hearing was held in
Vicksburg, Mississippi, on April 17, 2008, in which approximately 500
people participated. A total of 67 people provided oral statements,
including one representative from the Corps' Vicksburg District and
four individuals representing the project sponsor. Of the remaining 62
people who provided oral statements, 32 people spoke in opposition to
the proposed pumps project, 29 spoke in favor of the pumps project and
one person did not specify a position. In total, approximately 463
residents of the state of Mississippi submitted written comments to EPA
or spoke at the public hearing. Of these, 417 expressed support for
EPA's proposal and 45 favored construction of the pumps. Within the
Yazoo Backwater Area, a total of 31 residents expressed an opinion on
the project either at the public hearing, in written comments, or both.
Of these 31, four expressed support for EPA's position, 26 expressed
support for construction of the pumps, and one did not express an
opinion.
On July 2, 2008, EPA Region IV submitted to EPA Headquarters its
Recommended Determination to prohibit the specification of certain
wetlands and other waters of the United States within Humphreys,
Issaquena, Sharkey, Warren, Washington, or Yazoo County, in the state
of Mississippi as a disposal site for the discharge of dredged or fill
material for the purpose of construction of the proposed Yazoo
Backwater Area Project, or any similar pump project in the Yazoo
Backwater Area that would result in unacceptable adverse effects on
fishery areas and wildlife.
EPA Region IV based its recommendation upon a conclusion that the
proposed discharge of fill material into 43.6 acres of wetlands and
other waters of the United States in connection with the construction
of the pumping station and the subsequent secondary impacts, would
result in unacceptable adverse effects on at least 67,000 acres of
wetlands and other waters of the United States and their associated
wildlife and fisheries resources. Additionally, EPA Region IV expressed
concern that the proposed mitigation would not fully compensate for the
potential impacts of the project, as identified in the FSEIS, and that
the suggested environmental benefits associated with the project's
reforestation component have not been substantiated. EPA Region IV also
stated that the Corps did not evaluate the proposed project's adverse
impacts on up to 24,000 acres of wetlands outside the FSEIS's wetland
assessment area. EPA Region IV also expressed its belief that there are
likely to be less environmentally damaging practicable alternatives
available to achieve the improved flood protection goals of the
proposed Yazoo Backwater Area Project.
The U.S. Fish and Wildlife Service (FWS), in its comments on the
Proposed and Recommended Determinations, concurred with EPA Region IV's
conclusion that the proposed project would result in extensive and
unacceptable adverse effects on wildlife and fishery areas. FWS also
highlighted its concerns that the proposed project would significantly
degrade the wildlife habitat provided by its four National Wildlife
Refuges located within the Yazoo Backwater Area--reducing the
capability of these refuges to achieve the purpose and intent for which
they were Congressionally established.
EPA prepared the Final Determination based on an evaluation of EPA
Region IV's Recommended Determination, and review and consideration of
the administrative record, including information in the Corps' 2007
FSEIS, public comments received in writing and at the public hearing,
and submissions by other federal and state agencies. In addition, the
Final Determination reflects the careful review and full consideration
of written information that was subsequently submitted and made part of
the record, as well as information conveyed to EPA by the Department of
the Army and the project sponsor during the EPA Headquarters section
404(c) consultation process.
EPA's Final Determination concludes that the discharge of dredged
or fill material in connection with the construction of the proposed
Yazoo Backwater Area Pumps Project (i.e., Plan 5 from the FSEIS), as
well as the two alternative proposals offered by the Corps in February
2008 (i.e., Plan 6 from the FSEIS and Modified Plan 6) and subsequent
operation of the 14,000 cfs pumping station would result in
unacceptable adverse effects on fishery areas and wildlife. The
administrative record developed in this case fully supports the
conclusion that, as a result of alterations to the spatial extent,
depth, frequency, and duration of inundation of wetlands within the
project area, the proposed projects would significantly degrade the
critical ecological functions provided by approximately 28,400 to
67,000 acres of wetlands (i.e., the range of wetland impacts as a
result of Plan 5, Plan 6, and Modified Plan 6) in the Yazoo Backwater
Area, including those functions that support wildlife and fisheries
resources. Although not proposed to go forward, FSEIS Plans 3, 4, and
7, which also include a 14,000 cfs pumping station are expected to
result in wetland impacts between approximately 28,400 and 118,400
acres (see FSEIS Main Report, Table 17, page 1-20). EPA has determined
that each of these alternatives would also result in unacceptable
adverse effects on fishery areas and wildlife. EPA does not believe
that these adverse impacts can be adequately compensated for by the
proposed mitigation, and are inconsistent with the requirements of the
CWA. Further, these impacts should be viewed in the context of the
significant cumulative losses across the Lower Mississippi River
Alluvial Valley (LMRAV), which has already lost over 80 percent of its
bottomland forested wetlands, and specifically in the Mississippi Delta
where the proposed project would significantly degrade important
bottomland forested wetlands.
Based on these findings, the Final Determination prohibits,
pursuant to section 404(c) of the CWA, the specification of the subject
wetlands and other waters of the United States as described in the
FSEIS as a disposal site for the discharge of dredged or fill material
for the purpose of construction
[[Page 54400]]
of FSEIS Plans 3 through 7, and Modified Plan 6. The adverse effects
associated with the prohibited projects are the result of a combination
of operational factors including the capacity of the pumping station
and its associated pump-on elevations. While the Final Determination
prohibits the construction of FSEIS Plans 3 through 7, and Modified
Plan 6, the data supporting the Final Determination indicates that
derivatives of the prohibited projects that involve only small
modifications to the operational features or location of these
proposals would also likely result in unacceptable adverse effects and
would generate a similar level of concern and review by EPA.
EPA continues to support the goal of providing improved flood
protection for the residents of the Mississippi Delta; however, it
believes that this vital objective can be accomplished consistent with
ensuring effective protection for the area's valuable natural
resources. EPA is committed to participating in discussions with other
federal and state agencies, and the public, concerning the best way to
provide flood protection while protecting wetlands and other natural
resources.
Dated: September 11, 2008.
Benjamin H. Grumbles,
Assistant Administrator for Water.
[FR Doc. E8-22002 Filed 9-18-08; 8:45 am]
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