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### FINAL DETERMINATION OF THE U.S. ENVIRONMENTAL PROTECTION AGENCY'S
ASSISTANT ADMINISTRATOR FOR EXTERNAL AFFAIRS CONCERNINGT H

E
BAYOUAUX CARPES SITE IN JEFFERSON PARISH, LOUISIANA

PURSUANT TO SECTION 404(C) OF THE CLEAN WATER ACT'


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TABLE OF CONTENTS

I. Introduction 1
II. 

### Background and History 3


### A. The project

B. litigation



## c. 404(c) proceedings

I I I• Description of the Site 9



### IV. Ecological Values Associated With Site 11


### A. Contribution to Barataria Bay Estuary

B. Fishery va1 ues
C. Wildlife values

D. Water Retention and Pollution Filtering Values

E. Recreation Values

F. Conclusion

V. Unacceptable Adverse Impacts 15


### A. Impacts to Shellfish Beds &

### Fishery Areas


### B. Impacts toWildlife Values



## c. Impacts toWater Retention 

### &Pollution Filtering Values

D. Impacts to Recreation

E. 

### Impacts to the Barataria Unit of theJean lafitte National Historica1Park.

F. Cumulative Impacts

VI. ADiscussion of the Report Prepared by Steimle and Associates, 2 0 Inc. on Behalfof the Property Owners

VII. Restriction on the Use of the Bayou Aux Carpes Site for 22 Specification as aDisposal Site



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I. Introduction

Under Section 404(c) of the Clean Water Act (CWA, 33 U.S.C. 1251 et seq), the**Administr~tor** of the Environmer.tal Protectior. Agency (EPA) is authorized to prohibit the specification (including withdrawal of specification) of any defined area as adisposal site, and he is autllorized to deny or restrict the
use of any defined area for specification (including the withdrawal of specification) as adisposal site, whenever he determines, after notice and**o~~or** tunity for public hearing, that the discharge of dredged or fill materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breediny areas), wildlife, or recreational areas. Before making such adetermination, the Administrator shall consult with the Chief of Engineers, the property owner(s), and the applicant(s) in cases where there has been application for a Section 404 permit. The Administrator has delegated this authority to make aFinal Determination under Section 404(c) to the Assistant Administrator for External Affairs, who is EPA's national Section 404 program manager.
This determination concerns the Bayou aux Carpes site shown in Attachment A. This site, which includes approximately 3000 acres of wetlands, is the location of aproposed Corps of Engineers• flood control project. This project has been partiallycompleted; a ring levee has been constructed around the entire site except at the confluence of the Southern Natural Gas Pipeline canal and Bayou Barataria. Completion of this project would involve the discharge of fill material into the canal at its confluence with Bayou Barataria to close the only tidal connecton to the site and into the Bayou aux Carpes (a tidal waterbody within the site) to facilitate the installation of a pumping station to drain the wetlands. The project is designed to provide flood control and land reclamation, which would be accomplished by draining the wetlands. Completing the flood control**~roject** might lead to additional proposals involving the discharge of fill material into the Bayou aux Carpes site by private propertyowners.

I have carefullyconsidered the record in this case, including public comments, the public hearing record, site specific evaluations, coordination with affected propertyowners, and information provided by other agencies and knowledgeable individuals. I have determined that the discharge of dredged or fill material in the Bayou aux Carpes site, except**~s** provided below, will have unacceptable adverse effects on shellfish beds, fisher; areas, (including spawning and breeding areas), wildlife and recreational areas, as described more fully below, and I am, therefore, exercising my authorityto restrict the site accordingly.

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The restricted discharyes include any for thepurpose of completiny 1 original Harvey Canal-Bayou Barataria Levee Project as well as any other discharges within the site not listed below that are subject to Section**4v~** of the Clean Water Act. However, this restrictiondoes not include: (1) discharges necessary for completion of themodified Harvey Canal-Bayou Barataria Levee Project, as described in the Wilson Order of November 16, 1976 (replacement of theclosure at the confluence of Bayou aux Carpes and Bayou Baratariawith floodgates is a necessaryelement of such completion); (2) discharges associated with routine operation and maintenance of the Southern Natural Gas PipelineCompany pipeline as long as dredged or fill material is placed in piles with breaks in between to allow inundation of adjacent wetlands and as long as pre-maintenancecontours are restored and; (3) discharges associated with projects with the solepurpose of habitat enhancement specificallyapproved by EPA. Discharges associated with thesethreeclasses of activities may take place, provided they are authorized by a Corps of Engineers• Section 404 permit. My findings and
reasons for this determination are also set out below. This 404(c) action does not affect the legalityofmaterial previouslydischarged within the siteunder Section 404, or require its removal, nor does it affectdischaryes exempt from regulation under Section 404(f).T '

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It. Background and History

A. The Project

In 1964, the Corps ofEngineers (Corps) approved a flood control project called the Harvey Canal -Bayou Barataria Levee Project (Levee Project) for theWest Bank ofJefferson Parish. The project was to be constructed in two phases: Phase I involved theconstruction of levees; Phase II was to involve primarily the closure ofBayou aux Carpes, which tidally connected the Bayou aux Carpes sitewith Bayou Barataria, as well
as the installation of a pumping station at themouth of Bayou aux Carpes waterway (referto Attachment A). Itwas initially contemplated that the Levee Project would provide flood protection and land reclamation benefits in the area; land reclamationwould be achieved through drainage, by the pumping station of the 3000 acres ofwetlands enclosed by the levees.

The Corps New Orleans District prepared an Environmental Impact Statement (EIS) in 1970 on its proposed Civil Works project recommending that the project be constructed. Construction of initial levees for the ''federal project" (Phase I) was begun in 1971 and was completed by the Corps of Engineers in November, 1973. Upon completion ofPhase I, the project was 

### 80% complete and all federal funds were exhausted. Phase I
serves to provide some flood protection, but did not result in, or allow, drainage and land reclamation. In addition, gaps inthe leveewere left at Bayou aux Carpes, the Southern Natural Gas PipelineCanal and a partial opening at Bayou des Familles. Because Federal funds were exhausted, all remaining work had tobe financed locally (assurances of such funding are referred to as local assurances). The second ltft leveework, which involves depositing additional material to raisethe levee elevation, was never completed. As part ofPhase II, local interests completed the closure of the Bayou aux Carpes opening using clam shell fill. This closureexists in good condition today. The Bayou des Familles opening was also closed at one point, using an earthen fill, however, this closurehas deteriorated to a point which currently allows tidal exchange. Neither Bayou closurewas specifically authorized pursuant to the Clean Water Act. Acontract was let by the Parish for the construction of the pumping station and construction materialswere moved to the site. Construction, however, was halted in November 1974 when the Corps initiated a Section 404 review ofthe**pr je** **~.~ /** **Section** 404 was not considered when the project was originally**ap P~**  in 1964 since Section 404 of the Clean Water Act was authorized by**n ;r~ss**  in 1972. The Clean Water Act has no grandfatherprovision exempt1ng**•r ~**  regulation those discharges which were planned prior to but which**1** j**·** occur until after its enactment.-4

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The Corps New Orleans District held a public hearing in January 1975 to receive comments on the proposed project. In March 1975 Colonel Heiberg, the New Orleans, District Engineer, completed his review and issued a**Stat~~ent** of Findings and recommended that the pumping station be installed anG :nat the project proceed to completion. In a letterdated April 25, 1975 EPA Region VI objected to the Statement of Findings and concluded that "the permanent blocking of Bayou des Familles and Bayou aux Carpes and the subsequent draining of the area enclosed by the ring levee would result in the irretrievable loss ofvaluablewetlands, have an unacceptable adverse impact on wildlife and recreational areas, and not be in the public interest." Following the review of EPA Region VI's position, Brigadier General Drake Wilson, the Deputy Director of Civil Works, recommended completion of the project as originally approved and authorized. In March 1976, while further discussions with the Corps ensued, a team of EPA scientists completed a field study that supported Regions VI's Apri125, 1975 position.

Another Corps review then culminated in a Revised Statement of Findings issued in July 1976, by Colonel Rush, New Orleans District Engineer. Once again, the Corps recommended that the project be completed as originally approved and authorized. Brigadier General Drake Wilson, Deputy Director of Civil Works, concurred with that recommendation by letterto EPA on August 27, 1976. He also advised EPA that the project would proceed unless EPA initiated a 404(c) action within 

### 15 days. EPA continued to press its objections although it did not formally initiate a 404(c) action at that time. General Wilson visited the site in October, 1976, along with reprpsentatives**~f** Jefferson Parish, EPA, property owners, representatives of environmental organizations and members of the concerned public.

Then on November 16, 1976 General Wilson reversed his previous decision and directed that the dams at Bayou aux Carpes and Bayou des Familles be removed, that flood gates be installed to be used only during flood conditions, and that the plans to construct the pumping station at Bayou aux Carpes be abandoned. These changes constituted themodified Harvey**Cana -?~you**  Barataria Levee Project.

B. Litigation

General Wilson's November 16, 1976 decision can be described as**~** attempt to retain the flood control benefits of the project without**:~ ~**  adverse environmental consequences which would result from completion**·** the levees and subsequent pumping of the site. This was agreeable to**:~~** EPA and to the officials of Jefferson Parish. However, this decision directly and/or indirectly precipitated substantial litigation in**:~** state and federal courts by the involved property owners.**-~**

In 1977, litigation was initiated in State Court in the m atter of Jacques J. Creppel, et al. v. the Parish of Jefferson, et al., resultlng in a f1nal judgement enjo1n1ng and proh1b1t1ng Jefferson Parish from abandoning the project as originally planned. The Court further ordered the Parish to proceed with immediate construction of the pum piny station at Bayou aux Carpes as provided in the original Corps project. That judgement was affirmed by the Louisiana 4th Circuit Court of Appeals
on May 15, 1980.

In a separate proceeding, also in 1977, the propertyowners brouyht an action in federal court against the Corps in an attempt to set aside General Wilson's order of November 16, 1976. Judge Lansiny Mitchell upheld General Wilson's order. His ruling in Creppel, et al.v. Corps of Engineers, 500 F. Supp. 1108 (E.D. La. 1980) was appealed to the

### U.S. Court of Appeals for the Fifth Circuit.

The Fifth Circuit, in a decision dated March 17, 1982, also concluded that General Wilson's November 16, 1976 modification of the project was not arbitrary, Creppel 

### v. U.S. Army Corps of Engineers, 670 F.2d 564 (5thCir. 1982). However, the Fifth**Circui~** identified two issues which it felt

were unresolved and needed further consideration. Those issues were: (1) whether or not the required local assurances would be availablewith respect to themodified project; 2/ and (2) whether or not Section 404 of the Clean Water Act might prevent-completion of the original project. The Fifth Circuit remanded the case to Judge Mitchell for resolution of those issues.

In the subsequent proceedings, it developed that (1) Jefferson Parish would not provide local assurances as to themodified project, because it felt itwas prohibited from doing so by the statecourt order referred to above, and (2) that EPA Region VI would not invoke its Section 404(c) procedures with respect to themodified project but, under the same circumstances that existed in 1976, would do so as to the original project.

2/ Local assurances would be required to finance the installation of the flood gates which Brigadier General Wilson had directed be installed.-6

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rn August, 1984, Judge 11itchell ruled that the ori9inal project should go forward. The Department of Justice filed aMotion to Reconsider this ruling, arguing among other things that it deprived EPA of an opportunity to invoke Section 404(c). At ahearing on September 19, 1984, Judge llitcnell agreed to hold the August ruling in abeyance to give EPA ninetydays to considertaking action under Section 404(c) and, if it decided to do so, an additional nine months to complete the process.3/

C. 404{c) Proceedings

In response to Judge Mitchell's ruling, EPA Region VI reviewed avai!able information on the Bayou aux Carpes site, which included a review of**Re~ion** VI's historical positions on the 11arrero-LafitteWaterline and the Westbank Hurricane Protection Levee, two projects which are not related to the Levee Project but would have resulted in adverse impacts to the site. On October 12, 1984 Region vr also conducted a field trip to the Bayou aux Carpes site in conjunction with the New Orleans District Corps regulatory functions staff and a representative of EPA's Office of Federal Activities to perform investigations and preliminary surveys.

As a result of these, and other activities, and the information derived therefrom, Oick Whittington, EPA's Region VI Regional Administrator initiated the Section 404(c) process by letter of December 17, 1984 to Colonel Eugene Witherspoon, the Corps' New Orleans District Engineer. The landowners were notified ofthis step simultaneously. Numerous interested parties were notified, including Jefferson Parish, Stateof Louisiana officials, the Louisiana Congressional delegation, and federal agencies including the National Marine Fisheries Service, the U.S. Fish and Wildlife Service and the National Park Service. As part ofthe notification process to Jefferson Parish officials, amember of the Parish Council offered to assist in ascertaining owners of the tract in addition to those involved in the litigation. The offer was accepted and the Parish was requested, in December 1984, to identifyowners ofthe tract based on Parish records.

3/ Certain ofthe landowners have contended that the use of Section 404(c} is illegal here because it would block a flood control project which allegedlythe court has held as amatter of lawmust be completed as originallyplanned, and because EPA cannot ordermodification of the project without local assurances. I am not persuaded. First, the district court expresslymodified its order to allow EPA an opportun1:1 to exercise its Section 404(c) authority. As the Fifth Circuit**ha~** noted, federal projects are subject to the requirements of Section**~J~** (supra, 670 F.2d at 564), and permission to discharyeunder Section**~** is subject to EPA's Section 404(c) authority. Second, EPA's Section 404(c) restriction on discharge does not require the completion of**: ~edified**  project; it**~erely** allows it, assum1ng requirements under other laws, such as local assurances, aremet.- I

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In earlyJanuary, letters were sent out to Jefferson Parish officials who were responsible for specific areas of the 404(c) tract, such as levees and other rights ofway, requesting their permission to go on the tract, inasmuch as EPA was assembling a field team to do amore detailed field investigation. The identification of all of the propertyowners in the Bayou aux Carpes siteproved difficult. However, with the help of Jefferson Parish, amailing list was compiled including propertyowners, interested public officials, interested citizens groups and all other known interested groups.

On May 17, 1985, the Region VI Administrator published in the Federal Register a Proposed Determination to prohibit, deny, or restrict the specification, or the use for specification, of the Bayou aux Carpes site as a disposal site. AProposed Determinationmeans that the Regional Administrator believes there are issues to be explored; it does not represent aconclusion that unacceptable adverse effects will occur, see 44 Federal Re2ister 58082 (October 9, 1979). Apublic hearing on the Proposed beterminat1on was held in Gretna, Louisiana on June 18, 1985. Copes ofdraft reports prepared
on the Bayou aux Carpes site in conjunction with EPA's 404(c) action were made availableprior to the hearing; final copies were made available at the first opportunity. Public participation at the hearing and during the comment period (which ended August 19, 1985) was substantial. The EPA proposal was supported by the National Park Service, the U.S. Fish and Wildlife Service, the National Marine**Fishe~ies** Service, the Louisiana Department ofWildlife and Fisheries, the Louisiana Department of Natural Resources, numerous environmental and civic groups, and many citizens with
an interest in the area. Those opposing the proposal included some owners of land within the study area and several business organizations promoting the industrial development of the Gulf Intracoastal Waterway (Bayou Barataria frontage). The U.S. Army Corps of Engineers New Orleans District requested that EPA exclude from the404(c) Final Determination an area within the Bayou
aux Carpes site for the disposal of dredged material from the federal**dredgin~** of the Gulf Intracoastal Waterway (Bayou Barataria); however, they also advised that that segment of the waterway has never been dredged since the initial construction, and that the segment is not expected to require maintenance in the near future.

The public hearing comment period was extended through August 5, 1985 to allow additional time for the public, including the propertyowners, to review and comment on EPA's final reports on Bayou aux Carpes. On the day that the public hearing was held, an application which was jointlyentered into by EPA Region VI and some of the propertyowners, was filed with Judse t1itchell, requesting that he extend the nine month deadline for completion of the 404(c) process an additional 120 days. In the face of opposition D; other propertyowners, Judge Mitchell extended the deadline only 30 days to October 18, 1985. Following the Judge's ruling, Region VI extended the comment period for the public hearing an additional two weeks to

. August 19, 1985. This extension of the comment period was announced 1n the Federal Register on July 19, 1985.

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After the close of the comment period, the Regional Administrator submitted tome a**Re~ommended** Determination, as well as the administrative record compiied by the Region, to restrict specification of the Bayou aux Carpes sitefor the discharge of fill material. This determination is based on findings that show that theproposed discharge, as well as future discharges, will have unacceptable adverse effects on shellfish beds, fishery areas (including spawning and breeding areas) wildlife and recreational areas. The Recommended Determination is dated August 30, 1985 and was received at EPA Headquarters on September 4, 1985.

EPA subsequently notified involved property owners by letters dated September 13, 1985 and September 16, 1985, the Southern Natural Gas Pipeline Company, which owns apipeline that crosses the site, by letterdated September 13, 1985 and Major General H.J. Hatch, Directorof Civil Works, Corps of Engineers, by letter dated September 13, 1985 ofthe Recommended Determination and of their opportunity for consultation in compliance with the Section 404(c) regulations.

In response to this notification, EPA received letters dated October 1, 1985 from Mr. Joseph E. LeBlanc, Jr, September 24, 1985 from Mr. Harold L. Molaison, and September 25, 1985 from Mr. Daniel L. Morrow, three attorneys who represent property owners within the Bayou aux Capres site. Their letters maintained the position presented in a previous letterwritten by Mr. LeBlanc dated August 19, 1985which questioned the legalityof EPA•s 404(c) action. They did not request ameeting. EPA also received a letterdated October 1, 1985 from the Director of Civil Works, Corps of Engineers which reiterated the request of the New Orleans DistrictEngineer for EPA to exclude an area within the B ayou aux Carpes site from the 404(c) Final Determination for dredged material disposal. The letter from the Directorof Civil Works did not request ameeting to discuss this issue. The Southern Natural Gas Pipeline Company, in 

### a letterdated September 25, 1985, advised EPA of its pipelinemaintenance requirements that would necessitate depositing dredged or fill material within the Bayou aux C arpes site.-9

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## rri. Description of the Site

The Bavou aux Carpes site is located approximately 10 miles south of New Orleans, Louisiana, on the "West Bank" of Jefferson Parish. The site
covers approximately 3200 acres and approximately 3000 acres is wetlands
as defined in 40 CFR 230.3{t). The remainder of the site consists of lan d classified as old orchard, residential, agricultural, industrial, wooded uplanrl, and grassland associated with levees and roads and is not included in EPA's 404(c) determination. The site is bounded on the north by the east-west £stelle Pumping Station Outfall Canal, on the east by the Plaquemine-Jefferson Parish line and Bayou Barataria (Intracoastal Waterway),
on the south by Bayou Barataria and Bayou des Familles and on the west by State Highway 3134 and the ''Vee-Levee" Pipeline Canal (refer to attachments Aand B). The geographic coordinates are: Range 23 East, Township 15 South, Portions of Sections 13, 14, 55, 57, 59; Range 23 East, Township 14 South, Portions of Sections 55, 81, 82; and Range 24 East, Township 15 South, Portions of Sections 48, 49, 50, 57. Vegetative characteristics and habitat types were identified througn on-site field visits by EPA, the U.S.Fish and Wildlife Service (FWS) and by interpretation of color infrared aerial photography. The Bayou aux Carpes sitecontained approximately 2190 acres ofbottomland hardwoods, wooded swamps and scrub-shrub wetlands and approximately 648 acres of fresh marshes, pond and open waterways. Bald cypress (Taxodium distichum), tupelo gum (Nyssa aquatica) red maple (Acer rubrum) and green ash (Fraxinus pennsylvania) are common overstoryvegetat1on 1n the bottomland hardwood, wooded swamp and scrub-shrub areas with bald cypress and tuplelo gum being themost**predo~inant.** In the scrub-shrub wetlands, the predominant shrub species are wax**~yrtle** {Myrica spp.), buttonbush (Cephalanthus occidentales) and eastern bacchar1s (Baccharis spp.). In the fresh marshes, thepredom1nant species include bulltongue (Sagittaria falcata), softstembullrush (Scirpus validus)
, pennywort (Hydrocotyle bonariensis), iris ([ris gigant1caerulea), smartwee1 (Polygonum spp.), sp1kerush (Eleocharis spp:r-and all1gator weed (Alternanthera phlloxeroides). Water hyac1nth (Eichlorniacrassipes), and duckweed (lemna spp.) characterize the floating vegetat1on of the open waterways wlthlnthe site.

The entire perimeter of the Bayou aux Carpes site is spanned by**lev~es** except for the confluence of the Southern Natural Gas Pipeline canal**w1:~** Bayou Barataria. The two mile long Southern Natural Gas Pipeline canal provides the primaryhydrological connection between the site and BayoJ Barataria (Intracoastal Waterway) and ultimately, Barataria Bay. Otn er major waterways within the Bayou aux Carpes site includetwo oil field location canals off of Bayou aux Carppes (approximately 2500 and 

### 6.o ou •

....· long). a 3500 foot long powerline right-of-way canal connected to one**~**-10

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the oil field location canals, and two plugged oil field location canals (1500 and 2000 feet long) off of Bayou Barataria. The Southern Natural Gas Pipeline Canal is directly connected to all of the aforementioned waterbodies except the two plugged canals off of Bayou Barataria. Dredged material was deposited along the banks of these canals during their construction. However, the dredged material levees have numerous breaks and
are no more than a few feet above adjacent wetland elevations and do not completely block surfacewater flow across the site.

In addition to the relatively flat topography of the site, numerous breaks in the dredged material levees and the unfilled area at the head of the Southern Natural Gas Pipeline canal provide a pathway for surfacewater to exchange between the canals and surrounding swamps and marshes. Remnants of the original Bayou aux Carpes waterway are unleveed, thus allowing surface waterto sheet flow across to the adjoiningwetlands. Studies conducted b y EPA revealed that during 1984, water levels in the BaratariaWaterway exceeded the average swamp/marsh subtrateelevation of 1.24feet National Geodetic Vertical Datum (NVGD) at least 50 percent of the time. Marsh-swamp elevations of 0.44 and 1.65 feet NGVD, which represent the range ofelevations in the site, were exceeded 95% and 20% of the time, respectively, by water levels in thewaterway during theEPA study in 1984. The frequency at which water levels equaled or exceeded 1.24feet NGVO were most pronounced during the period from May through October 1984 and appeared as a response to southerlywind directions. During 1984, theaverage annual water level in Bayou Baratariawas 10to 14 percent below the 20-yearmean; hence the potential for the flooding of the Bayou aux Carpes sitemay be greater than that observed during the study. Adiurnal tide range of 0.3 to 0.4 feet was recorded in the Bayou aux Carpes siteduring the study. This range appears typical of the upper basin region of the Barataria Bay system and is further evidence of the close hydrologic relationship of the sitewith the rest of the system, in spite of the partially completed flood control project.
The Bayou aux Carpes site is bordered on thewest by 600 acres of the Barataria Unit ofJean Lafitte National Historical Park. This portion of thepark is hydrologically connected to the Bayou aux Carpes site via four sets of culverts under State Highway 3134. The Barataria Unit contains approximately 500 acres of bottomland hardwood wetlands.-11

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IV. Ecological Values Associated With The Site

The record, including biological and hydrological studies of the Bayou aux Carpes siteconducted by EPA and FWS, demonstrates that the site is a viable and valuable functioning component of the Barataria Bay and estuarine system. Despite existing alterations, which include the levee spanning its perimeter and canals**~ith assoc;~ted**  dredged material**lev~es,** the Bayou aux Carpes site contributes**organ1~** material for the nutritional needs of fish and shellfish communities in the adjacent estuary, provides valuable habitat for fish and wildlife, acts as apollutant filtering mechanism helping to reduce degradation ofwaterquality in adjacent waters, and provides opportunities for public recreation.

A. Contribution to Barataria Bay Estuary

The Bayou aux Carpes site is comprised of bottomland hardwoods, wooded swamps, scrub shrub wetlands, fresh marshes, as well as open waterways. The amount of plant biomass produced in the study areamay be compared to that measured in nearby sites exhibiting similar species composition. Conner and Day (1976) reported total primary production for several types of seasonally flooded Louisiana swamps. They arrived at values of 1,574 g/M2/yr at a bottomland hardwood siteand 1,140g/M2/yr at a cypress-tupelo site.**~ven** the similarities between the Bayou aux Carpes site and these study sites, it is reasonable to conclude that comparable levels ofplant biomass
are produced at the Bayou aux Carpes site.

Production ofplant biomass with resultant decomposition results in the production of carbon and nitrogen which serveas nutrients. EPA field and laboratory studies confirmed that the Bayou aux Carpes study area is a source oforganic carbon and nitrogento Bayou Barataria, leading to Barataria Bay. Nutrient exchange measurements and dye tracer studies verified the export mechanism. During the study period, water transport from Bayou aux Carpes to Bayou Baratariawas rapid and directed towards Barataria Bay. Traced waters leavingthe Bayou aux Carpes study area via the Southern Natural Gas Pipeline canal traveled downstream in Bayou Barataria a distance of sixmiles in less than 24 hours.

This plant biomass is significant because it serves both as an im portant direct food source for numerous species of fish and wildlife that live on or visit the project site, and as a source ofdetritus (i.e., plant and**ani~al** material undergoing various stages ofdecay by the action of bacteria and fungi). Detrital materials are consumed by fishes and invertebrates and**~" y**  contribute to the downstream estuarine food webs. By this mechanism, recrPd

- tional and commercial fish and shellfish resources are supported.

B. Fishery Values

EPA conducted aquatic sampling inJanuary 1985 in the Bayou a ux**ar:~** sitewithin the canals, as well as in the adjacent marshes and wooded**s~d ~~** **.** F

WS sampledprimarily the canals within the site during A pril 1985

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Aquatic sampling conducted by EPA and FWS revealed the presence of several fish species that tolerate both fresh and brackish**environ~ents.** Observations of bay anchovy, striped mullet, threadfin shad, tidewater silverside and blue crab provide recent evidence of ingress and egress of estuarine organisms. In addition, data**fro~** Day (1984) and EPA's**sa~pling** in 1985 revealed at least 15 species of fresh water fishes associated with the Bayou aux Carpes site.**t~any** of these species, such
as channel and blue catfish, sunfish and bass are recognized as important to both commercial and sport fisheries. In addition to finfish, field sampling yielded 14 taxa ofmacroinvertebrates from stations in thecanals and Bayou aux Carpes waterway and 27 taxa ofmacroinvertebrates from the marsh and swamp areas. Species such as the blue crab and adult red swamp crawfish are of direct commercial value. Juvenile forms of grass shrimp, crawfish, blue crabs and bay anchovies were observed during sampling within the Bayou aux Carpes sitewhich indicates that it is used as nurseryhabitat by these species.

The Bayou aux Carpes siteexhibits several trophic levels (that is, several steps in the food web). For example, in addition to the available emergent and floating vegetation in the open waterways and on themarsh surface, the sitecontainsjuvenilecrawfish, grass shrimp and amphipods that consume detritus. These are, in turn, used as fish food items by the aforementioned soort and commercial species.

C. Wildlife Values

The U.S. Fish and Wildlife Service (FWS) conducted a study and prepared a Habitat Evaluation Procedure (HEP) report that covered the Bayou aux Carpes site and the adjacent Barataria Unit of the Jean Lafitte National Historical Park. As noted above, these areas are hydrologically connected and both contain bottomland hardwood wetlands (The Bayou aux**Car~es** site also contains scrub-shrub wetlands and fresh marshes). The HEP, which is a standard procedure used by the FWS, is based on the assumption that vegetativecommunities have value to wildlife and that positive or negative impacts can be expressed in terms ofmodification (both quantity and quality) to wildlife habitat. These impacts can be measured and compared. Additionally, optimum habitat for a certain species can be characterized and any habitat
can be compared to theoptimum to develop a Habitat Suitability Index (HSI)

. There is an assumed linear relationship between the HSI and the carrying capacityof a habitat. The HSI for a particular species is determined Dy utilizingmodels which contain**~easurable** key habitat components for a specific animal in a particularhabitat. An HSI valueof 0 indicates tnat
a cover type provides little or no potential habitat for the evaluation species, whereas a value of 1.0 indicates that the habitat provides**optinu~** life requisites in the form of food, cover, and/or reproduction.-13-

The wildlife species selected for evaluation by the FWS for its report in this case, included the gray squirrel,pileated woodpecker, North American mink, wood duck, great egret, AMerican alligator and the common muskrat. These
are species associated with wetland systems like those within the Bayou aux Carpes site and are representative of abroad arrayof**com~unity** positions (e.g. trophic levels, habitat requirements, taxonomic**grou~ings),** and provide recreational, commercial, and aesthetic values.

The results of the HEP analysis indicated that the bottomland hardwoods and wooded swamps of the Bayou aux Carpes site and the Barataria Unit of the adjacent park, as well as the scrub-shrub wetlands and fresh marshes of Bayou aux Carpes site are high value habitat for the evaluated species, with the exception of the**~uskrat;** the HEP analysis revealed that the site is ofmoderate value for the habitat requirements of this species.

The FWS field studies revealed that the site provides valuable habitat for adiversityof wildlife species. The marshlands and forested wetlands provide feeding, resting, nesting, and escape habitat to numerous species of game and nongame mammals and commercially important furbearers, songbirds, raptors, migratory and resident waterfowl, wading birds, woodpeckers, other birds, and**~any** species of amphibians and reptiles. During the field studies conducted by EPA and FWS, at least 70 species were observed in the Bayou aux Carpes site, including nine species of amphibians, 10 species of reptiles, 45 species of birds, and six species ofmammals. Observations included the American alligator which FWS has listed on the threatened species list in Lousiana. Of those species observed, the wood duck and the osprey are considered by FWS to be National Species of Special Emphasis. FWS is**~onitoring** these species because of their declining populations due to factors which include habitat loss. The endangered bald eagle is known to nest in the general vicinityof the Bayou aux Carpes site. At least three bald eagle nests have been documented within a 10 mile radius of this

area by FWS (1984).

D. Water Retention and Pollution Filtering Values

Studies conducted by EPA scientists indicate that the relatively flat topographyof the Bayou aux Carpes site, in combination with the low and/or broken levees, enhances the capacity of the site to detain surface waters and affect a slow release to downstream systems. The water storage**capac1~1** of the site was confirmed by measuring the cyclic chlorideconcentrations of swamp water discharged to Bayou Barataria and bymonitoring adye tracer. Chloride concentrations, measured at thejunction of Southern Natural Gas Pipeline canal and Bayou Barataria, increased with ebb flows from the Bayou aux Carpes site and decreased when the direction of flow reversed and originated from Bayou Barataria (flood tide). This means that the water draining from the site was more saline. This salinitywould**loy1:~: ~**  be derived during the summer and fall periods when water is pushed up**,~~ J**  this vicinityof Bayou Barataria by winds and tides. The salt content shows up in the standing water in the marsh.-14

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The storage capacity is significant for the purposes of 404(c) because the site is absorbing pollutants and excess nutrients from stored waters. Water which is frequently introduced into the study area from Bayou Barataria contains urban runoff from the surrounding areas. EPA analyses and comparison of heavy metal content of sediments samples obtained from the Bayou aux Carpes site and Bayou Barataria revealed that the canals and swamp-marsh habitat trap finely divided particles and the associated heavy metals. Copper, lead, and iron concentrations appear uniformly distributed between the swamp, marsh, canal, and Bayou Barataria indicating the capacity of the marsh/swamp system to trap these heavy metals typically associated with urban runoff. Bayou Barataria appeared to retain greater concentrations of zinc compared to the Bayou aux Carpes swamp and marsh areas. EPA analysis did not reveal the
reason for this. It may be that the particles towhich zinc is bound are too heavy to remain in suspension long enough to be carried into the Bayou
aux Carps site.

The biological cycling of inorganic nitrogen (N02-N03) was evident in the Bayou aux Carpes swamp. The N02-N03 concentration gradient decreased from sampling points in Bayou Barataria to stations in the forested swamp and marshes. Thus, Bayou Barataria appears to be a source of N02-N03 and the Bayou aux Carpes swamp an area for its assimilation into other nitrogen forms such as animal orplant protein. Both the nutrient assimilation and pollutant trapping help maintain water quality which benefits the associated aquatic life.

E. Recreation Values

Recreational opportunities such as boating, fishing, trapping, and

some huntirig (with permission from private property owners) are available within the bounds of the Bayou aux Carpes site. The publiccurrently has access to portions ofthe tract by way ofthe Southern Natural Gas Pipeline canal that connects Bayou Bartariawith the water courses within the site.

F. Conclusion

Under Section 404(c), a finding of unacceptable adverse effects must be based on effects.on one ormore of the listed resources, that is, municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, and recreational areas. Based on the records and the precedingdiscussion, I conclude that the Bayou aux Carpes site has significant value for all these resources except**municipa~** water suool·es. The next section discusses the likely impact on these values 1f Bayou**·** Carpes is used as a disposal site for dredged or fill material.•, -15-

V. Unacceptable Adverse Impacts

As discussed above, exerciseofmy authority under Section 404(c) to restrict or prohibit the use of a site for disposal of dredged or fill material must be based on a finding of "unacceptable adverse impact» to one ormore ofthe listed resources. EPA's regulations define unacceptable adverse effect to mean, in pertinent part, »significant loss of or damage to fisheries, shellfishingorwildlife habitat or recreation areas.» 33 CFR**~231.2(e).** As the preamble explains, Section 404(c) determinations are by their naturebased on predictions of future impacts; therefore, what is required is a finding of reasonable likelihood that unacceptable adverse effects will occur, not absolute certainty. (44 Fed. Reg. 58078, Oct. 9, 1979).

In evaluating the projected impacts on the relevant resources in this case, EPA studied information available from: previous studies ofthe area associatedwith various public and private project proposals; recent studies conducted in association with this determination; coordination with other agencies; comments received from the public, including affected landowners; and considered the relevant portion of the Section 404(b)(l) Guidelines, in this case 40 CFR §230.10(c). The following specific adverse impacts are likelyto result from the proposed dischargeof fill material to close tidal waterways and facilitate the installationof a pumping station to drain the site or from the discharge ofdredged 

### or fill material within the Bayou aux Carpes site.

A. Impacts to Shellfish Beds and Fishery Areas

As reported by the Department of Commerce (USDC, 1980), Louisiana is the third ranking state in fisheries employment and the state's estuarine system produces 28 percent ofthe nation's fishery harvest. Studies by Craig and Day (1977) and EPA indicate that the Barataria Basin is responsible for a large, if not the largest, share ofLouisiana's total commercial fishery harvest. The National Marine Fisheries Service, utilizing commercial catch data from 1953 through 1978, calculatedthe average annual commercial harvest directly attributable to Barataria Basin. This annual harvest, which includesmenhaden, shrimp, oysters, croaker, blue crab, sea trout, spot and red drum is approximately 302.7 million pounds at a value of approximately 83million dollars. Adult and juvenileforms ofthe blue crabwere observed in theBayou aux Carpes site. Menhaden, shrimp and oysters directly consume the detritus produced and exported from the site. Completion ofthe Levee Project would ultimately eliminatethe export of detritus and nutrients to the downstream estuary and subsequent filling

or other land conversion activities within the Bayou aux Carpes site would
serve to accelerate this result. Thereforecompletion of theproject would eventually eliminate the export of swamp-marsh production that constitutes a necessary component of the estuarine food web and, thereby, have an**unacceo: ~)** **e** adverse impact to shellfish and fishery areas. FillingtheBayou aux Carpes ;ite without completion of the project would also eliminate such exports.-16

-

.**Stud~es conduc~ed**  by EPA and FWS revealed that the Bayou aux**Car~es** s1te**prov1~es** forag1ng and nursery habitat for fresh and estuarine**s~ecies, ~any** of**whi~h** are of recreational and commercial importance including: channel and blue catfish, sunfish, bass, blue crab and red swamp crawfish. In addition, the studies revealed the presence of forage fish, juvenile crawfish, grass shrimp and other amphipods that break down detritus and are utilized as a food source by the commercial and sport speciesmentioned above. Completion ofthe Levee Project would eliminate access to, as well
as the fishery values of the Bayou aux Carpes site; filling the site would have a similar effect. For all these reasons, completion of tne Levee Project and/or filling in the Bayou aux Carpes sitewould h1ve
an unacceptable adverse effect on shellfish beds and fisheries areas.
B. Impacts to Wildlife Values

The projection of future conditions, prepared by FWS as part of the HEP analysis, indicated thatwith the completion of the Levee Project, all ofthe evaluation species would show loss of available habitat and that, if the sitewere subsequently filled and developed, it would lose virtually all of its current wildlife value.
Completion ofthe Levee Project will adversely affect the habitat of the the American alligator, which is threatened in the state of Louisiana, the osprey and the wood duck, which are National Species of Special Emphasis, commercially important furbearers, and game animals. Completion ofthe project and subsequent draining and filling will have an unacceptable adverse impact on wildlife values.

C. Impacts to Water Retention and Pollution Filtering Values Hopkins and Day (1979) found that Lake Cataouatche and, to a lesser extent, Lake Salvador have alreadybegun.to experience the effect of an altered hydrological regime. These lakes in the Barataria Basin used to be aprime nurseryground for Louisiana commercial fisheries, but now drainage canals from theWest Bank of New Orleans bypass the swamps and enter directlyintothe lakes. High nutrient loads from theWest Bank have caused Lake Cataouatchetobecome eutrophic and fish kills after large rainstorms are indicativeof the impact of the changes in the natural hydrologyofthis area. The Barataria Waterway also allows urban runoff to flow unhindered to the upper part of BaratariaBay. While the total contribution of Bayou aux Carpes site for filtering pollutants has not been measured, it is certain that the adjacent waters of Bayou Barataria and tne Barataria Bay estuary, as well as the associated fish and shellfish, wil 1 receive higher levels of pollutants and heavy metals from urban runoff ana other sources, if the site is isolated by completing the Levee Project or if it is filled.·This will contribute to the unacceptable adverse**ef c~.o**  to fish and shellfish discussed above, in section A.-17

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### D. Impacts to Recreation

The potential for adverse effects upon recreation (primarily from the potential loss of sport fishing and hunting opportunities) within the site has generated a high level of public concern throughout thepublic hearing corrrnent period. Completion ofthe Levee Project will block public access tothe site. Draining the site via the proposed pump will eliminatethe fisheries community and, in conjunction with future filling and other land reclamation activities, eventuallyeliminatethe availablewildlife habitat. Recreation, in the form ofhunting and fishing, will be eliminatedwithin the Bayou aux Carpes site.

E. Impacts tothe Barataria Unit ofthe Jean Lafitte National Historical Park

The Barataria Unit oftheJean Lafitte National Historical Park lies immediately west of the Bayou aux Carpes site and a 600 acre section lies within the same drainage basin as the Bayou aux Carpes site. There is a direct hydrological connection, via four sets ofculverts under State Highway 3134; this area ofthe park is comprised of approximately 500

acres of bottomland hardwoods and wooded swamp. The FWS HEP analysis revealed that thewetlands ofthe Barataria Unit areof high value for the representative species selected. On site observations included the bald eagle, which has been listed by FWS on theendangered species list. In addition, there is a great egret and great blue heron nesting colony located in thewooded swamp within this section oftheNational Park. The fish species collected in the Bayou aux Carpes sitewere the same as those collected by FWS in the Barataria Unit in September 1984, with theexception of six species that were collectedonly in the park and two species that
were collected only in the Bayou aux Carpes. This portionof the National Park and the Bayou aux Carpes site represent. in form and in function, two interconnected segments ofone wetland system.
The Barataria Unit isopen tothe public for fishing. In addition, the Park Service has placed an emphasis on this area as an educational
resource. An interpretativewalkway traverses typical bottomland hardwoods wetlands, then enters a cypress-tupelo swamp. The trail receives high visitoruse and is amajor tool in the park•s education program. Therefore, this unit ofthe National Park provides recreation opportunities in addition totheaforementioned ecological values.

The hydrological relationship between the Barataria Unit and Bayou aux Carpes site is such that attempts to drain or significantly alterthe hydrology ofthe sitewould result in adverse hydrological alterationswithin the Barataria Unit of the park. Astudy of the effects that drainingof the**B~ yo~**  

### aux Carpes sitewould have on the park was conducted by John W. Day, Jr., 0f 

### the Louisiana State University Center for Wetland Resources. Dr. Day**conclu ~ed** -18

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that as long as the surfacewater connection remains functional, the forced drainageof the**B~tcu** aux Carpes**~wamp** would result in drainage ofmuch of the
areawithin the park. This would ultimately result in vegetative transition toupland species with loss ofproductivity, detrital export, existing fish and wildlife habitat and the attendant recreational opportunities.

Alternativemeans of preservingthewetland values ofthe park ifthe study areawas placed under pump would includeplacing control structures at the highway culverts and implementing an intensivewatermanagement plan. Although the control structuresmight initially slow the rate of ecological transformation due todraining, EPA feels that the success of constantlymaintaining flooded conditions is questionable and may eventually leadto thedeterioration of thewooded swamp and bottomland hardwood communities. Attempts to reproduce natural hydrological cycles through extensivewater management would be expensive, involvingmajor alterations in orderto pump water into the area and then drain itout again. Completion oftheLevee Project or any otherfill proposals which would have the effect of draining, drying, orhydrologically isolatingthe Bayou
aux Carpes sitewould result in adverse impacts to fisheries areas, wildlife
areas and recreation associatedwith the Barataria Unit oftheJean Lafitte National Historical Park.

F. Cumulative Impacts

The significance of

· impacts associated with completing the Levee Project and eliminating the ecological contribution ofthe Bayou aux Carpes site are even greaterwhen consideredwithin the context of wetland alterations withinthe Barataria Basin and coastalLouisiana.

Areport totheLouisiana Joint LegislativeCommittee on Natural Resources, stated that overthe last 80years, over 800,000 acres of land in coastal Louisiana have been lost. Approximately 58 percent of this has occurred over the past 25years. Recent losses offorested wetlands in the state are on theorderof 87,200 acres annually (U.S. FWS, March 1984; Dozier et al.; and Gagliano, 1981). These losses affect not only biological, water quality, recreational, and flood protection benefits but also economic values ofthewetlands because ofthe significancetoLouisiana's coastal fishery. The causes cited for thesewetland losses include such natural phenomena as coastal subsidence and compaction, erosion, and sea level rise, and such anthropogenic causes as channelization, levee construction, canal dredging, subsidencedue tomineral extraction, agricultural expansion, and urban expansion. This is significant for two
reasons. First, some causes ofwetland losses are natural and, therefore.-19-

not subject tojurisdiction under Section 404 of the Clean Water Act. Second, while natural phenomena are causing wetland losses from seaward, man's activities are threatening wetlands from the landward side. It has been predicted, in a report by the Department of Commerce that "if the present draining and filling operations for urban and commercial development in the coastal area continue at thecurrent rate, an additional 186,000
acres of the state'swetlands will be lost by theyear 2000" (USDC, 1980).

The same types of activities causing significant statewide coastal wetland losses are also reported by the Department of Interioras major influences in the Barataria Basin, (USFWS, 1983). The Louisiana Department of Transportation and Development (LDTD, 1976) has calculated the total loss of Barataria Basin wetlands as being 44,800 acres by 1970. The upper Barataria Basin wetlands are increasingly being ringed by urban development. This can be seen along the Bayou des Familles ridgeto the northwest of the Estelle Pumping Station Outfall Canal. Also, the effects of pumping upon habitat similarto that ofthe study area may be seen immediatelywest of that canal. The Bayou aux Carpes site represents a notable portion, roughly four percent of the periodically flooded marsh and swamp area in the Barataria Basin; and would, therefore, represent a sizeable loss to this area.
G. Proposed CorrectiveMeasure

Counsel for some of the landowners proposed, as a correctivemeasure to eliminatethe likelihood orunacceptable adverse effects, that the Park Service purchase a portion of thetract and that the pumping station be relocated to the pipelinecanal. In my judgement this proposal

. would not materially reduce the significant adverse effects ofthe project,

even ifthe Park Servicewere in a position to implement it. In any case, the Service has indicated that it does not have an interest in acquiring this land at this time. Neither during the Regional 404(c) consultation period and public comment period norduring EPA headquarters' consultation period did any ofthe landowners ortheir representatives identify any desired property
uses or specific projectswhich would involve less significant filling within the Bayou aux Carpes siteand, therefore, could possibly be exem pted from the general prohibition on discharge. However, the Southern Natural Gas PipelineCompany by letterdated September 25, 1985 indicated that routinemaintenance oftheir pipelinewould require some discharges of dredged or fill material but that it could be done so as tohave minimal environmental effects. We agreeand our final 404(c) determination recognizes this exception..



### . ·''

VI. ADiscussion SSOClates, -20-

The technical material submitted on behalfofthe propertyowners to the record inopposition toEPA's studies ofthe Bayou aux Carpes siteconsisted of a report entitled "Review of CWA 404(c) Related Studies in the Bayou
aux Carpes Area" prepared by Steimle and Associates, Inc. in August 1985. The report and EPA's analysis of same have been made part ofthe record on this case. This section provides a discussion ofmy findings regarding themain points ofthe report.

Steimle and Associates reviewed the assessment of the Bayou aux Carpes siteperformed by Region IV, Environmental Services Division in Athens, Georgia. Their report states that the sampling effortwas restrictedto
a small segment of the siteand that theduration of sampling was not sufficient to develop seasonal conclusions. In addition, the report states that the storage/detention of surfacewater is not supported by the study results; specifically, the Steimle report compared thewater level recorder readings between the site and Bayou Barataria after a rain event and concluded that their similaritycontradicted the idea that the Bayou aux Carpes site storeswater.

Steimle and Associates is correct in that sampling was performed primarily in and adjacent to the major watercourses within the site. The data obtained, however, was accurate and the resultant observations and/or conclusions.were not expanded to includeunsampled areas. EPA feels that the literature research performed in conjunction with theassessment, as well as other site specific studies, such as theHEP analysis performed by FWS, provide information on segments ofthe sitenot directly sampled by Region IV such that the ecological values oftheentire sitemay be ascertained.

EPA agrees that the duration of sampling was too short to support seasonal conclusions in theabsence of otherdata. However, conclusions regarding seasonal characteristics, such as the frequency oftidal inundation,
were reached by combining and comparing onsite resultswith the review of seasonal records and available scientific literature.

The comparison ofwater level recorder readings referred toby Steimle and Associates is misleading because the recorder in the Bayou aux Carpes siteis locatedwithin one of the canals which is hydrologically connected to Bayou Barataria and would, therefore, react in a similar fashion to Bayou Barataria to hydrological changes. EPA believes that the study data do support the conclusion that water is stored by the Bayou aux Carpes site. The measurement of cyclic chloride concentrations confirmed that the sitestores water. In addition, a diurnal tidal range of .3to .4 feet was recorded at the siteduringEPA's study. This value, when added to the averagemarsh-swamp surface elevation of the swamp resulted in an average water level elevation of 1.54 feet NGVD. This elevationwas above the maximum water level height recorded in Bayou Barataria and study canals indicating that the sitewas storing additional water.

# . ..

Steimle and Associates also reviewed the HEP analysis conducted by FWS. The report stated the view that the HEP is based upon two assumptions that are untrue in nature; that is: (1) that there is a linear relationship between the HSI value and the number of a species that a given type of habitat can support and; (2) that all of the members of the species are going to be evenly distributed in a given habitat.

The HEP is ameans by which**diffe~ent** habitats may be compared (regarding their value to a certain wildlife species) by comparing each against amodel. These procedures are a basis for comparison and do not provide absolute wildlife support information for a specific area. The two above assumptions aremade to provide a qualitative basis of habitat comparison; for example, an area with an HSI of 1.00 is more va:uable than an area with an HSI of 0.50 for the same wildlife species and, if two areas have the same HSI for a particular species, it is assumed that the larger area can accommodate a larger population of that species. The HEP is a standard methodology used by FWS and provides a reasonable basis for evaluating the wildlife values of the site.

Steimle and Associates also reviewed the report by Dr. Day which addressed the impacts of the Levee Project on the Barataria Unit of Jean Lafitte National Historical Park. They conclude that Dr. Day's report is general and lacks site specific data. They also state that this report dismisses the concept of water level management rather than providing a plan that could be evaluated.

The data obtained by EPA on the hydrological connection between Bayou
aux Carpes and the Barataria Unit indicates that completing the Levee Project and pumping and draining the Bayou aux Carpes sitewill ultimately drain the Barataria Unit of the National Park. Information in the record

on the ecology of this site reveals the resources that will ultimately be lost. EPA believes that, while awater management plan may be feasible from an engineering standpoint, it may still result in vegetative changes within the Barataria Unit and subsequent changes in values. Therefore it is reasonable to conclude that using the Bayou aux Carpes site for disposal will adversely affect the values of the historic park. These values include fish and wildlife habitat, as well as recreation.

In summary, the report done by Steimle and Associates fails to raise substantive issues that would cause reconsideration of the conclusionswithin the three aforementioned reports.

# . ...

# . ."

·-22-

VII. Restriction on Use ofthe Bayou aux Carpes Site for Specification as a D1sposal Site

Section 404(c) authorizes EPA to impose different limitations on discharges through actions on disposal site specifications. Where the facts warrant Imay recommend that any defined areabe prohibited from specification as adisposal sitepursuant to Sections 404{a) and (b). If I should determinethat thedischarge of certainmaterials will have significantlyless damaging effects than others, or that limiting discharges by amount, methorl, and/or location will reduce the likelihood ofunacceptable adverse effects, Imay recommend that the use of a specified sitemerely be restricted in some manner and/orthat the restriction orprohibition applyto only a portion of the area under consideration.

In the present case, my finding ofunacceptable adverse effects stems from thedirect and indirect effects ofdischarges regulated under Section 404 oftheClean Water Act and withinthe Bayou aux Carpes site. Accordingly, I have decided to restrict theuse of the Bayou aux Carpes sitefor any discharges ofdredged or fill material, including those associated with the original HarveyCanal-Bayou BaratariaLevee Project, with three exceptions. The first exception isdischarges associated with completion of themodified Harvey Canal-Bayou Barataria Levee Project,
as described in the Wilson Order of November 

### 16, 1976; on condition that the closure at theconfluence of Bayou aux Carpes and Bayou Baratariabe replaced by floodgates. By retainingthecurrent hydrologic regime except during storms, themodified project will largelymaintain thecurrent values of the site. The second exception is discharges associated with routine operation and maintenance ofthe Southern Natural Gas Pipeline Company pipeline as long as dredged or fill material is placed inpiles with breaks in between to allow sheet flow to adjacent wetlands and as long as pre-maintenance contours are restored. The third exception is discharges associated with projectswith the sole purpose of habitat enhancement and specificallyapproved by EPA. I believethat these three types of activities areunlikelyto result in significant adverse effects to the aquatic environment as long as they are performed in accordance with theserestrictions as well as any permit conditions which may be imposed by theCorps of Engineers through thepermit process.

I have decided not tonake a fourth exception for adisposal site for dredged material resulting from dredging in Bayou Barataria as requested by the Corps of Engineers since the disposal ofdredged material within the Bayou aux Carpes sitewould result in the loss of a sign;ficant area and contribute to the unacceptable adverse effects discussed above. I note that there is no ongoing maintenance dredging in the Bayou and none is planned for the foreseeable future, so this should not create any

# .. . '**·** '

hardship. Even**i~ ~ircumstances**  should change, today•s decision would permit dredged material to be used in completing and maintaining the modified Levee Project described in the Wilson Order.

Should the landowners in the future identify any other specific activities which require some dischargeofdredged or fill material and which would have onlyminor impacts, theymay, ofcourse, applyto EPA for reconsideration oftoday•s decision with respect to those particularactivities. However, based on the current record, onlythethree specificallyidentified exceptions tomy restriction arejustified.



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