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CHAPTER 6 COORDINATION AND COMPLIANCE WITH 

ENVIRONMENTAL REQUIREMENTS 

This chapter documents the coordination and compliance efforts regarding statutory authorities 

including: environmental laws, regulations, executive orders, policies, rules, and guidance. 

Consistency of the Selected Plan (SP) with other Louisiana coastal restoration efforts is also 

described. 

6.1 ENVIRONMENTAL COORDINATION AND COMPLIANCE 

Following completion of the final integrated report, the Assistant Secretary of the Army for 

Civil Works will issue a written Record of Decision (ROD) concerning the proposed action. 

The ROD will be issued within a framework of laws, regulations, executive orders, policies, 

rules, and other guidance. These authorities establish regulatory compliance standards for 

environmental resources pertaining directly to USACE management of water resources 

development projects, or provide planning guidance for the management of environmental 

resources. Relevant Federal statutory authorities and executive orders are listed in Table 6.1. 

Relevant State of Louisiana statutory authorities are listed in Table 6.2. Full compliance with 

statutory authorities will be accomplished upon review of the final feasibility report and EIS by 

appropriate agencies and the public and the signing of a ROD. 

6.1.1 Clean Water Act – Section 401 Water Quality 

Under provisions of the Clean Water Act (33 U.S.C. § 1251), any project that involves placing 

dredged or fill material in waters of the United States or wetlands, or mechanized clearing of 

wetlands would require a water quality certification from the Louisiana Department of 

Environmental Quality (LDEQ), Office of Environmental Services. The pubic notice for the 

proposed action was issued on October 10, 2008. Along with a copy of this draft EIS, an 

application for water quality certification was provided to the LDEQ on November 14, 2008, 

stating that the proposed placement of fill material into waters of the state will not violate 

established water quality standards. The LDEQ issued a state Water Quality Certification 

(WQC 060302-01/AI 101234/CER 20060014) on November 21, 2008. 

6.1.2 Clean Water Act – Section 404(b)(1) 

The USACE is responsible for administering regulations under Section 404(b)(1) of the Clean 

Water Act. Potential project-related impacts subject to these regulations, such as the discharge 

of dredged material into shallow open water areas to create wetlands, and the placement of rock 

for shoreline protection, have been evaluated in compliance with Section 404(b)(1) of the Clean 

Water Act (Appendix D). The evaluation of potential impacts to water quality indicated that, 

on the basis of the guidelines, the proposed disposal sites for the discharge of dredged material 

and stone comply with the requirement of these guidelines, with the inclusion of appropriate 

and practicable methods to minimize adverse effects to the aquatic ecosystem. 
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Table 6.1 Relevant Federal Statutory Authorities and Executive Orders 

(Note: This list is not complete or exhaustive). 

Abandoned Shipwreck Act of 1987 

American Indian Religious Freedom Act of 1978 

Anadromous Fish Conservation Act of 1965 

Archaeological Resources Protection Act of 1979 

Archaeological and Historical Preservation Act of 1974 

Bald Eagle Protection Act of 1940 

Clean Air Act of 1970 

Clean Water Act of 1977 

Coastal Barrier Improvement Act of 1990 

Coastal Barrier Resources Act of 1982 

Coastal Wetlands Planning, Protection, and Restoration 

Act of 1990 

Coastal Zone Management Act of 1972 

Coastal Zone Protection Act of 1996 

Comprehensive Environmental Response, 

Compensation, and Liability Act of 1980 

Consultation and Coordination with Indian Tribal 

Governments (EO 13175) of 2000 

Deepwater Port Act of 1974 

Emergency Planning and Community Right-to-Know 

Act of 1986 

Emergency Wetlands Restoration Act of 1986 

Endangered Species Act of 1973 

Environmental Quality Improvement Act of 1970 

Estuaries and Clean Waters Act of 2000 

Estuary Protection Act of 1968 

Estuary Restoration Act of 2000 

Exotic Organisms (EO 11987) of 1977 

Farmland Protection Policy Act of 1981 

Federal Actions to Address Environmental Justice in 

Minority Populations & Low-Income Populations (EO 

12898, 12948) of 1994, as amended 

Federal Compliance with Pollution Control 

 Standards (EO 12088) of 1978 

Federal Emergency Management (EO 12148) of 1979 

Federal Water Pollution Control Act of 1972 

Federal Water Project Recreation Act of 1965 

Fish and Wildlife Conservation Act of 1980 

Fish and Wildlife Coordination Act of 1958 

Flood Control Act of 1944 

Floodplain Management (EO 11988) of 1977 

Food Security Act of 1985 

Greening of the Government Through Leadership in 

Environmental Management (EO 13148) of 2000 

Historic Sites Act of 1935 

Historical and Archaeological Data-Preservation 

Act of 1974 

Indian Sacred Sites (EO 13007) of 1996 

Invasive Species (EO 13112) of 1999 

Land & Water Conservation Fund Act of 1965 

Magnuson-Stevens Fishery Conservation and 

Management Act of 1976, as amended 

Marine Mammal Protection Act of 1972 

Marine Protected Areas (EO 13158) of 2000 

Marine Protection, Research, and Sanctuaries 

Act of 1972 

Migratory Bird Conservation Act of 1929 

Migratory Bird Treaty Act of 1918 

Migratory Bird Habitat Protection (EO 13186) of 2001 

National Environmental Policy Act of 1969 

National Historic Preservation Act of 1966 

National Invasive Species Act of 1996 

Native American Graves Protection and 

Repatriation Act of 1990 

Neotropical Migratory Bird Conservation Act of 2000 

Noise Control Act of 1972 

Nonindigenous Aquatic Nuisance Prevention and 

Control Act of 1996 

North American Wetlands Conservation Act of 1989 

Oil Pollution Act of 1990 

Outer Continental Shelf Lands Act of 1953 

Pollution Prevention Act of 1990 

Prime or Unique Farmlands, 1980 CEQ 

Memorandum 

Protection and Enhancement of the Cultural 

Environment (EO 11593) of 1971 

Protection and Enhancement of Environmental Quality 

(EO 11991) of 1977 

Protection of Children from Environmental Health 

Risks and Safety Issues (EO 13045) of 1997 

Protection of Cultural Property (EO 12555) of 1986 

Protection of Wetlands (EO 11990) of 1977 

Reclamation Projects Authorization and Adjustments 

Act of 1992 

Recreational Fisheries (EO 12962) of 1995 

Resource Conservation and Recovery Act of 1976 

Responsibilities of Federal Agencies to Protect 

Migratory Birds (EO 13186) of 2001 

Rivers and Harbors Acts of 1899, 1956 

River and Harbor and Flood Control Act of 1970 

Safe Drinking Water Act of 1974 

Submerged Land Act of 1953 

Sustainable Fisheries Act of 1996 

Toxic Substances Control Act of 1976 

Uniform Relocation Assistance and Real Property 

Acquisition Policies Act of 1970 (Public Law 91-646) 

Water Resources Development Acts of 1976, 1986, 

1990, 1992, and 2007 

Water Resources Planning Act of 1965 

Watershed Protection & Flood Prevention Act of 1954 

Water Pollution Control Act Amendments of 1961 

Wild and Scenic River Act of 1968 

Wilderness Act of 1964 
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Table 6.2 Relevant State Statutory Authorities 

(Note: this list is not complete or exhaustive) 

Air Control Act 

Archeological Treasury Act of 1974 

Louisiana Coastal Resources Program 

Louisiana Natural and Scenic Rivers System Act 

Louisiana Threatened and Endangered Species and Rare & 

Unique Habitats 

Protection of Cypress Trees 

Water Control Act 

6.1.3 Coastal Zone Management Act of 1972 

Section 307 of the Coastal Zone Management Act (CZM) of 1972 (16 U.S.C. 1456(c)(1)(A)) 

directs Federal agencies proposing activities or development projects (including civil work 

activities), whether within or outside the coastal zone, must assure that those activities or 

projects are consistent, to the maximum extent practicable, with the approved state coastal zone 

management program. A Consistency Determination is included with this report (Appendix E) 

and has been submitted to the Louisiana Department of Natural Resources (LDNR) for 

consistency review. Implementation of the SP is considered consistent, to the maximum extent 

practicable, with the approved Louisiana state coastal management program. 

6.1.4 Fish and Wildlife Coordination Act Report 

The USACE and the USFWS have formally committed to work together to conserve, protect, 

and restore fish and wildlife resources while ensuring environmental sustainability of our 

Nation’s water resources under the January 22, 2003, Partnership Agreement for Water 

Resources and Fish and Wildlife. Accordingly, in a letter dated December 20, 2006, the 

USFWS indicated agreement to serve as a Cooperating Agency (per NEPA section 1501.6) in 

developing the EIS for the proposed project in accordance with applicable NEPA and CEQ 

guidance. Participation of the USFWS includes: 1) participating in meetings and field trips to 

obtain baseline information on project-area fish and wildlife resources; 2) evaluating the 

proposed project’s impacts to wetlands and associated fish and wildlife resources, and assisting 

in the development of measures to avoid, minimize, and/or compensate for those impacts; and, 

3) providing technical assistance in the development of a Biological Assessment describing the 

impacts of the proposed activity to Federally listed threatened or endangered species and/or 

their critical habitat. In the December 20, 2006 letter, the USFWS also provided specific 

guidance on avoiding impacts to West Indian manatee (Trichechus manatus) and Gulf sturgeon 

(Acipenser oxyrhynchus desotoi). 

In accordance with provisions of the report prepared in fulfillment of the Fish and Wildlife 

Coordination Act (48 Stat. 401, as amended; 16 U.S.C. 661 et seq.), the USFWS has provided 

recommendations on the originally proposed (first) Tentatively Selected Plan (TSP) in a May 

14, 2007, Fish and Wildlife Coordination Act Report (FWCAR), and again for the revised 

(second) TSP in an October 18, 2007, supplemental letter to that FWCAR (Appendix F). The 

first and second TSPs were developed, based on additional Congressional guidance, changes in 

alternative plan formulation, and reallocation of funds to construct other projects. Passage of 

the WRDA 2007 and deauthorization of the MRGO as a navigation channel has necessitated 

additional revisions resulting in the Selected Plan that assumes all conditions under the No 

Action Alternative are considered to have the MRGO closed to navigation. The USFWS 
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provided a supplemental letter, dated December 17, 2007, to the original FWCAR (May 14, 

2007) addressing this revised final SP (Appendix F). The construction of the MRGO North 

Bank (Mile 40 to Mile 44.5) reach was initiated under a previous Environmental Assessment 

and MRGO Operations and Maintenance authority. This required that the benefits associated 

with this reach be removed from the benefits analysis for this document. An additional letter 

acknowledging this change was provided by the USFWS on January 25, 2008. 

The January 25, 2008, supplemental letter states that the current SP still results in a significant 

gain in habitat for fish and wildlife resources over the project life and therefore the analysis and 

recommendations (presented below) provided in the May 2007 FWCAR continue to remain 

in effect: 

1. The USFWS and the NMFS should be provided an opportunity to review and submit 

recommendations on the draft plans and specifications on the MRGO and Lake Borgne 

wetland creation and shoreline protection addressed in this report. 

2. Coordination should continue with the USFWS and the NMFS on detailed contract 

specifications to avoid and minimize potential impacts to manatees and Gulf sturgeon. 

3. If the proposed project has not been constructed within one year or if changes are made 

to the proposed project, the CEMVN should re-initiate Endangered Species Act 

consultation with the USFWS. 

4. Material dredged for floatation should be used to create marsh to the greatest extent 

practicable. 

5. The created and nourished wetlands and shoreline protection should be monitored over 

the project life to help evaluate the effectiveness of these features. 

6. Dredged material borrow pits should be carefully designed and located to minimize 

anoxia problems and excessive disturbance to area water bottoms. Wave 

refraction/diffraction models should be used to ensure the borrow pits are sited at a 

sufficient distance from adjacent shores such that they do not accelerate erosion of 

those shorelines. 

Provided that the above recommendations are included in the feasibility report and related 

authorizing documents, the USFWS will support further planning and implementation of the SP. 

The CEMVN does not concur with the FWCAR recommendation to monitor the proposed 

project features. CEMVN typically monitors some O&M projects via the Beneficial Use 

Management Program (BUMP). However, because a major portion of the MRGO navigation 

channel would be deauthorized (from Mile 60 to the Gulf of Mexico), it is unlikely that any 

funds would be available for BUMP-related monitoring activities along the deauthorized 

portion of the MRGO. 

Because they are integral components of the administrative record, this FEIS includes the 

December 20, 2006, planning aid letter; the draft FWCARs dated May 14, 2007; and the 

supplemental draft FWCAR letters dated October 18, 2007, December 17, 2006, and January 

25, 2008 (Appendix F). 

6.1.5 Endangered Species Act of 1973 (ESA) 

Compliance with the ESA (7 U.S.C. 136; 16 U.S.C. 460 et seq.) has been coordinated with the 

USFWS and the NMFS for those species under their respective jurisdictions. The use of 
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recommended primary activity exclusion zones and timing restrictions would be utilized, to the 

maximum extent practicable, to avoid project construction impacts to any threatened or 

endangered species or their critical habitat within the proposed action area. The CEMVN will 

continue to closely coordinate and consult with the USFWS and the NMFS regarding threatened 

and endangered species under their jurisdiction that may be potentially impacted by the 

proposed action. Although brown pelican and West Indian manatee may be found in the 

proposed action area, the only endangered species with a possibility of potential adverse 

impacts from the SP is Gulf sturgeon. The Lake Borgne water bottom has been designated as 

critical habitat for the Gulf sturgeon. See Section 4.8 Threatened and Endangered Species

and the Biological Assessment and NMFS Biological Opinion (both included in Appendix A) 

for additional information on Gulf sturgeon critical habitat primary constituents, and the finding 

of “Not Likely to Adversely Affect.” The concurrence (via fax) from the USFWS that the 

proposed action is not likely to adversely affect these resources is also included in Appendix A. 

6.1.6 Louisiana State Rare, Threatened and Endangered Species, and Natural 

Communities Coordination 

The CEMVN reviewed the database maintained by the Louisiana Natural Heritage Program that 

provides the most recent listing and locations for rare, threatened and endangered species of 

plants and animals and natural communities within the State of Louisiana. The proposed action 

would not adversely impact any rare, threatened or endangered species, or unique natural 

communities. The proposed action would increase the extent of brackish marsh and salt marsh 

habitats, which are identified as rare to secure natural communities for St. Bernard Parish (see 

also Section 4.4 Coastal Vegetation Resources). 

6.1.7 Magnuson-Stevens Fishery Conservation and Management Act of 1996 and 

the Magnuson-Stevens Act Reauthorization of 2006 (Essential Fish Habitat) 

As directed by the Magnuson-Stevens Fishery Conservation and Management Act (Public Law 

104-297), the CEMVN has coordinated with the NMFS and that agency’s experts on various 

marine organisms, as well as EFH. The NMFS provided a letter dated December 22, 2006, to 

help guide the development of the EIS for the proposed action (Appendix C). The NMFS 

identified shrimp, red drum, reef fish, and stone crabs as species managed by the Gulf of 

Mexico Fishery Management Council that have Essential Fish Habitat (EFH) in the proposed 

action area. They also listed estuarine emergent wetlands, mud, sand and shell substrates, and 

estuarine and marine water column as primary categories of EFH in the proposed action area. 

The analysis of potential impacts of the SP on EFH is described in Section 4.7 Essential Fish 

Habitat. 

6.1.8 Clean Air Act – Air Quality Determination 

Compliance with the Clean Air Act (42 U.S.C.A. §§7401) has been fully coordinated with the 

Air Quality Section of the LDEQ (see also Section 4.15 Air Quality). As required by 

Louisiana Administrative Code, Title 33 (LAC 33:III.1405 B), an air quality applicability 

determination was made for the SP. This included consideration of the proposed action for the 

category of general conformity, in accordance with the Louisiana General Conformity, State 

Implementation Plan (LDEQ, 1994). An air quality determination has been calculated, based 

upon direct and indirect air emissions. Generally, since no other indirect Federal action, such as 
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licensing or subsequent actions would likely be required or related to the restoration 

construction actions, it is likely that indirect emissions, if they would occur, would be 

negligible. Therefore, the air applicability determination analysis was based upon direct 

emission for estimated construction hours. Considering that total emissions for each work item 

separately (or even when all work items are summed) would not exceed the threshold limit 

applicable to Volatile Organic Compounds (VOC) for parishes where the most stringent 

requirement (50 tons per year in serious non-attainment parishes) is in effect, (see General 

Conformity, State Implementation Plan, Section 1405 B.2), the VOC emissions for the proposed 

construction would be classified as de minimus and no further action would be required. 

6.1.9 National Historic Preservation Act of 1966 

In compliance with Section 106 of the National Historic Preservation Act of 1966, as amended, 

and 36CFR 800, Federal agencies are required to identify and consider potential effects that 

their undertakings might have on significant historic properties, district, site, building, structure, 

or object that is included in or eligible for inclusion in the National Register. Additionally, a 

Federal agency shall consult with any tribe that attaches religious and cultural significance to 

such properties. Agencies shall afford the State Historic Preservation Officer (SHPO) and tribes 

a reasonable opportunity to comment before decisions are made. Accordingly, the proposed 

action has been coordinated with the SHPO and tribes. Coordination letters received from the 

SHPO, as well as the coordination letter with the Chitimacha Tribe of Louisiana, are included in 

Appendix G. The DEIS was provided to the SHPO and tribes, as well as other interested 

parties for comment. 

6.1.10 Farmland Protection Policy Act 

The purpose of the Farmland Protection Policy Act (7 U.S.C. 658) is to minimize the extent to 

which Federal programs contribute to the unnecessary and irreversible conversion of farmland 

to non-agricultural uses. There are no farmlands within the study area. Hence, there would be 

no unnecessary or irreversible conversion of farmland to non-agricultural uses. 

6.1.11 Executive Order 13186 – Migratory Bird Habitat Protection 

Executive Order 13186 proclaims the intent to support the conservation of previous migratory 

bird conventions by integrating bird conservation principles, measures, and practices into 

agency activities and by avoiding or minimizing, to the extent practicable, adverse impacts on 

migratory bird resources when conducting agency actions. This Executive Order requires 

environmental analyses of Federal actions required by the NEPA or other established 

environmental review processes evaluate the effects of actions and agency plans on migratory 

birds, with emphasis on species of concern. In addition, each Federal agency shall restore and 

enhance the habitat of migratory birds, as practicable. Implementation of the SP would result in 

a net increase in migratory bird habitat. 

6.1.12 Executive Order 12898 – Environmental Justice 

Concern with environmental justice issues can be traced to Title VI, Section 601 of the Civil 

Rights Act of 1964 (Public Law 88-352): 
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“No person in the United States shall, on the grounds of race, color, or national origin, 

be excluded from participation in, be denied the benefits of, or be subjected to 

discrimination under any program or activity receiving Federal financial assistance.” 

On February 11, 1994, President Clinton issued Executive Order 12898 regarding Federal 

actions to address environmental justice issues in minority populations and low-income 

populations: 

“To the greatest extent practicable and permitted by law, and consistent with the 

principles set forth in the report on the National Performance Review, each Federal 

agency shall make achieving environmental justice part of its mission by identifying and 

addressing, as appropriate, disproportionately high and adverse human health or 

environmental effects of its programs, policies, and activities on minority populations 

and low-income populations in the United States and its territories and possessions, the 

District of Columbia, the Commonwealth of Puerto Rico, and the Commonwealth of the 

Mariana Islands.” 

Executive Order 12898 is designed to focus Federal attention on the environmental and human 

health conditions in minority communities and low-income communities. The order is also 

intended to promote non discrimination in Federal programs substantially affecting human 

health and the environment, and to provide minority communities and low income communities 

access to public information on, and an opportunity for public participation in, matters relating 

to human health or environmental planning, regulations, and enforcement. Potential 

environmental justice issues have been considered throughout the entire study process, and will 

continue to be considered through project implementation. As part of the NEPA process, a 

scoping input request was provided to the public and interested parties. The four scoping 

comments did not identify any potential environmental justice issues. The CEMVN is 

committed to ensuring that any potential environmental justice issues are addressed as the study 

proceeds. The proposed wetland creation and nourishment and shoreline protection measures 

would equally impact all potential users (e.g., commercial and recreational fishers) in the area. 

There would be no potential environmental justice issues from implementing the SP. 

6.1.13 Uniform Relocation Assistance and Real Property Acquisition Policies Act 

of 1970 (Public Law 91-646) 

All real estate interests acquired for construction of the SP will be in accordance with the 

provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 

1970 (Uniform Act), as amended in 42 USC 4601-4655, and the Uniform Regulations contained 

in 49 C.F.R. Part 24. The Uniform Act sets forth procedures for the acquisition of private 

property for public use and specifically requires that the acquiring agency appraise the real 

property interests it wishes to acquire and provide the owner a written summary of the basis for 

the amount established as just compensation. 

6.1.14 Executive Order 13112 – Invasive Species 

On February 3, 1999, President Clinton issued Executive Order 13112 to prevent the 

introduction of invasive species and provide for their control and to minimize the economic, 

ecological, and human health impacts that invasive species cause by establishing the National 

Invasive Species Council. The SP is consistent with Executive Order 13112 to the extent 
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practicable and permitted by law and subject to the availability of appropriations, and within 

Administration budgetary limits. The SP will use relevant programs and authorities to prevent 

the introduction of invasive species and not authorize, fund, or carry out actions likely to cause 

or promote the introduction or spread of invasive species in the United States or elsewhere, 

unless the USACE has determined and made public its determination that the benefits of such 

actions clearly outweigh the potential harm caused by invasive species, and that all feasible and 

prudent measures to minimize risk of harm will be taken in conjunction with the actions.