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FINAL DETERMINATION OF THE U.S. ENVIRONMENTAL PROTECTION AGENCY'S 

ASSISTANT ADMINISTRATOR FOR EXTERNAL AFFAIRS CONCERNING THE 

BAYOU AUX 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 His tory 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 va 1 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 to Wildlife Values 

c. Impacts to Water Retention & Pollution Filtering Values 

D. Impacts to Recreation 

E. Impacts to the Barataria Unit of the Jean lafitte National 

Hi stori ca 1 Park. 

F. Cumulative Impacts 

VI. A Discussion of the Report Prepared by Steimle and Associates, 20 

Inc. on Behalf of the Property Owners 

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

Specification as a Disposal 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 a disposal site, and he is autllori zed to deny or restrict the 

use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and o~~ortunity 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 a determination, 

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 a Final Determination under Section 404(c) to the Assistant Admi nistrator 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 a proposed Corps of Engineers• flood control 

project. This project has been partially completed; 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 property owners. 

I have carefully considered the record in this case, including public 

comments, the public hearing record, site specific evaluations, coordination 

with affected property owners, 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 

authority to restrict the site accordingly. 
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The restricted discharyes include any for the purpose 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 restriction does not include: (1) 

discharges necessary for completion of the modified Harvey Canal-Bayou Barataria Levee Project, as described in the Wilson Order of November 16, 

1976 (replacement of the closure at the confluence of Bayou aux Carpes and 

Bayou Barataria with floodgates is a necessary element of such completion); 

(2) discharges associated with routine operation and maintenance of the 

Southern Natural Gas Pipeline Company 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-maintenance contours are restored and; 

(3) discharges associated with projects with the sole purpose of habitat 

enhancement specifically approved by EPA. Discharges associated 

with these three classes 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 legality of material previously discharged within the 

site under Section 404, or require its removal, nor does it affect discharyes 

exempt from regulation under Section 404(f). 
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It. Background and History 

A. The Project 

In 1964, the Corps of Engineers (Corps) approved a flood control 

project called the Harvey Canal -Bayou Barataria Levee Project (Levee 

Project) for the West Bank of Jefferson Parish. The project was to be 

constructed in two phases: Phase I involved the construction of levees; 

Phase II was to involve primarily the closure of Bayou aux Carpes, which 

tidally connected the Bayou aux Carpes site with Bayou Barataria, as well 

as the installation of a pumping station at the mouth of Bayou aux Carpes 

waterway (refer to Attachment A). It was initially contemplated that 

the Levee Project would provide flood protection and land reclamation 

benefits in the area; land reclamation would be achieved through drainage, 

by the pumping station of the 3000 acres of wetlands 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 of Phase 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 in the levee were left at 

Bayou aux Carpes, the Southern Natural Gas Pipeline Canal and a partial 

opening at Bayou des Familles. Because Federal funds were exhausted, all 

remaining work had to be financed locally (assurances of such funding are 

referred to as local assurances). The second ltft levee work, which 

involves depositing additional material to raise the levee elevation, was 

never completed. As part of Phase II, local interests completed the closure 

of the Bayou aux Carpes opening using clam shell fill. This closure exists 

in good condition today. The Bayou des Familles opening was also closed 

at one point, using an earthen fill, however, this closure has deteri orated 

to a point which currently allows tidal exchange. Neither Bayou closure was 

specifically authorized pursuant to the Clean Water Act. A contract was 

let by the Parish for the construction of the pumping station and construc ti on 

materials were moved to the site. Construction, however, was halted i n 

November 1974 when the Corps initiated a Section 404 review of the 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 grandfather provision exemp t1ng •r ~ 

regulation those discharges which were planned prior to but whi ch 1 j · 

occur until after its enactment. 
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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 letter dated 

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 of valuable wetlands, 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 Apri 1 25, 

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 letter to 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 decisi on 

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 the modified 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 decisio n 

directly and/or indirectly precipitated substantial litigation in :~ 

state and federal courts by the involved property owners. 
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In 1977, litigation was initiated in State Court in the matter 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 pumpiny 

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 property owners 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 Genera l 

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 (5th Cir. 

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 available with 

respect to the modified 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 the modified project, because it 

felt it was prohibited from doing so by the state court order referred to 

above, and (2) that EPA Region VI would not invoke its Section 404(c) procedures with respect to the modified 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. 
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rn August, 1984, Judge 11itchell ruled that the ori9inal project should 

go forward. The Department of Justice filed a Motion to Reconsider this 

ruling, arguing among other things that it deprived EPA of an opportunity 

to invoke Section 404(c). At a hearing on September 19, 1984, Judge llitcnell 

agreed to hold the August ruling in abeyance to give EPA ninety days to 

consider taking 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-Lafitte Waterline 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 of this step simultaneously. Numerous interested 

parties were notified, including Jefferson Parish, State of Louisiana 

officials, the Louisiana Congressional delegation, and federal agencies 

including the National Marine Fisheries Service, the U.S. Fish and Wildl i fe 

Service and the National Park Service. As part of the notification process 

to Jefferson Parish officials, a member 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 identify owners of the tract based on Parish records. 

3/ Certain of the landowners have contended that the use of Section 404(c } 

is illegal here because it would block a flood control project which 

allegedly the court has held as a matter of law must be completed as 

originally planned, and because EPA cannot order modification of the 

project without local assurances. I am not persuaded. First, the 

district court expressly modified 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 discharye under 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 unde r 

other laws, such as local assurances, are met. 
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In early January, 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 of way, requesting their permission to go on the tract, 

inasmuch as EPA was assembling a field team to do a more detailed field 

investigation. The identification of all of the property owners in the 

Bayou aux Carpes site proved difficult. However, with the help of Jefferson 

Parish, a mailing list was compiled including property owners, 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. A Proposed Determination means that the Regional Administrator 

believes there are issues to be explored; it does not represent a conclusion 

that unacceptable adverse effects will occur, see 44 Federal Re2ister 58082 

(October 9, 1979). A public hearing on the Proposed beterminat1on was held 

in Gretna, Louisiana on June 18, 1985. Copes of draft reports prepared 

on the Bayou aux Carpes site in conjunction with EPA's 404(c) action were 

made available prior 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 of Wildlife 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 the 404(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 property owners, 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 jointly entered 

into by EPA Region VI and some of the property owners, was filed with Ju ds e 

t1itchell, requesting that he extend the nine month deadline for complet i on 

of the 404(c) process an additional 120 days. In the face of opposition D; 

other property owners, 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 to me a Re~ommended Determination, as well as the administrative record compi ied by the Region, to restrict specification of the 

Bayou aux Carpes site for the discharge of fill material. This determination is based on findings that show that the proposed 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 a pipeline that crosses the site, by letter dated 

September 13, 1985 and Major General H.J. Hatch, Director of Civil Works, 

Corps of Engineers, by letter dated September 13, 1985 of the 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 letter written by Mr. LeBlanc 

dated August 19, 1985 which questioned the legality of EPA•s 404(c) action. 

They did not request a meeting. EPA also received a letter dated October 1, 1985 

from the Director of Civil Works, Corps of Engineers which reiterated the request 

of the New Orleans District Engineer for EPA to exclude an area within the Bayou 

aux Carpes site from the 404(c) Final Determination for dredged material disposal. 

The letter from the Director of Civil Works did not request a meeting to discuss 

this issue. The Southern Natural Gas Pipeline Company, in a letter dated 

September 25, 1985, advised EPA of its pipeline maintenance requirements that 

would necessitate depositing dredged or fill material within the Bayou aux Carpes 

site. 
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rri. Description of the Site 

The Bavou aux Carpes site is located approximately 10 mi l es 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 land 

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 

A and 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 

site contained approximately 2190 acres of bottomland 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 overstory vegetat1on 1n the bottomland hardwood, wooded swamp and 

scrub-shrub areas with bald cypress and tuplelo gum being the most 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, the predom1nant species include 

bulltongue (Sagittaria falcata), softstem bull rush (Scirpus validus ) , pennywort (Hydrocotyle bonariensis), iris ( [ris gigant1caerulea), smartwee1 

(Polygonum spp.), sp1kerush (Eleocharis spp:r-and al l1gator weed (Alternanthera phlloxeroides). Water hyac1nth (Eichlornia crassipes), and duckweed 

(lemna spp.) characterize the floating vegetat1on of the open waterways 

wlthl n the 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 primary hydrological connection between the site and BayoJ 

Barataria (Intracoastal Waterway) and ultimately, Barataria Bay. Ot ner 

major waterways within the Bayou aux Carpes site include two oil field 

location canals off of Bayou aux Carppes (approximately 2500 and 6. oou • .. .. · 

long). a 3500 foot long powerline right-of-way canal connected to on e ~ 
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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 surface water 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 surface water 

to exchange between the canals and surrounding swamps and marshes. Remnants 

of the original Bayou aux Carpes waterway are unleveed, thus allowing surface 

water to sheet flow across to the adjoining wetlands. Studies conducted by 

EPA revealed that during 1984, water levels in the Barataria Waterway 

exceeded the average swamp/marsh subtrate elevation of 1.24 feet 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 of elevations 

in the site, were exceeded 95% and 20% of the time, respectively, by water 

levels in the waterway during the EPA study in 1984. The frequency at which 

water levels equaled or exceeded 1.24 feet NGVO were most pronounced during 

the period from May through October 1984 and appeared as a response to 

southerly wind directions. During 1984, the average annual water level in 

Bayou Barataria was 10 to 14 percent below the 20-year mean; hence the 

potential for the flooding of the Bayou aux Carpes site may be greater 

than that observed during the study. A diurnal tide range of 0.3 to 0.4 

feet was recorded in the Bayou aux Carpes site during 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 

site with the rest of the system, in spite of the partially completed flood 

control project. 

The Bayou aux Carpes site is bordered on the west by 600 acres of the 

Barataria Unit of Jean Lafitte National Historical Park. This portion of 

the park 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. 
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IV. Ecological Values Associated With The Site 

The record, including biological and hydrological studies of the 

Bayou aux Carpes site conducted 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 l evee 

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 a pollutant filtering mechanism helping to reduce degradation of water quality 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 area may 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 site and 1,140 g/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 of plant biomass 

are produced at the Bayou aux Carpes site. 

Production of plant biomass with resultant decomposition results in 

the production of carbon and nitrogen which serve as nutrients. EPA field 

and laboratory studies confirmed that the Bayou aux Carpes study area is a 

source of organic carbon and nitrogen to 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 Barataria was rapid and directed towards Barataria Bay. 

Traced waters leaving the Bayou aux Carpes study area via the Southern 

Natural Gas Pipeline canal traveled downstream in Bayou Barataria a distanc e 

of six miles in less than 24 hours. 

This plant biomass is significant because it serves both as an important 

direct food source for numerous species of fish and wildlife that l i ve on or 

visit the project site, and as a source of detritus (i.e., plant and ani~al 

material undergoing various stages of decay 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 , recrP d- tional and commercial fish and shellfish resources are supported. 

B. Fishery Values 

EPA conducted aquatic sampling in January 1985 in the Bayou aux ar:~ 

site within the canals, as well as in the adjacent marshes and wo oded s~d ~~ . 

FWS sampl ed pri ma rily the cana ls within the site duri ng April 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 of macroinvertebrates from stations in the canals 

and Bayou aux Carpes waterway and 27 taxa of macroinvertebrates 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 site which indicates that it is used as nursery habitat 

by these species. 

The Bayou aux Carpes site exhibits 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 the marsh 

surface, the site contains juvenile crawfish, 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 hydrological l y 

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 

vegetative communities have value to wildlife and that positive or negative 

impacts can be expressed in terms of modification (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 the optimum to develop a Habitat Suitability Index (HSI ). There is an assumed linear relationship between the HSI and the carrying 

capacity of a habitat. The HSI for a particular species is determined Dy 

utilizing models which contain ~easurable key habitat components for a 

specific animal in a particular habitat. An HSI value of 0 indicates t nat 

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 a broad array of 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 of moderate value for the habitat requirements of this species. 

The FWS field studies revealed that the site provides valuable habitat 

for a diversity of 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 of mammals. 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 vicinity of 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 

topography of the Bayou aux Carpes site, in combination with the low and /o r 

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 chloride concentrations 

of swamp water discharged to Bayou Barataria and by monitoring a dye tracer. 

Chloride concentrations, measured at the junction 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 salinity would loy1:~: ~ 

be derived during the summer and fall periods when water is pushed up ,~~ J 

this vicinity of Bayou Barataria by winds and tides. The salt conten t 

shows up in the standing water in the marsh. 
-14 -

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 to which 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 or plant 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 public currently has 

access to portions of the tract by way of the Southern Natural Gas Pipel i ne 

canal that connects Bayou Bartaria with 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 or more of the listed resources, that is, muni cipal 

water supplies, shellfish beds and fishery areas (including spawning and 

breeding areas), wildlife, and recreational areas. Based on the records 

and the preceding discussion, 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, exercise of my 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 or more of the listed resources. EPA's regulations 

define unacceptable adverse effect to mean, in pertinent part, 

»significant loss of or damage to fisheries, shellfishing or wildlife 

habitat or recreation areas.» 33 CFR ~231.2(e). As the preamble explains, 

Section 404(c) determinations are by their nature based 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 studi es 

of the area associated with 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 likely to result from the proposed discharge of fill material 

to close tidal waterways and facilitate the installation of a pumping 

station to drain the site or from the discharge of dredged 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 of the 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 of Louisiana's total commercial 

fishery harvest. The National Marine Fisheries Service, utilizing commercial 

catch data from 1953 through 1978, calculated the average annual commercial 

harvest directly attributable to Barataria Basin. This annual harvest, 

which includes menhaden, shrimp, oysters, croaker, blue crab, sea trout, 

spot and red drum is approximately 302.7 million pounds at a value of 

approximately 83 million dollars. Adult and juvenile forms of the blue 

crab were observed in the Bayou aux Carpes site. Menhaden, shrimp and 

oysters directly consume the detritus produced and exported from the site. 

Completion of the Levee Project would ultimately eliminate the export 

of detritus and nutrients to the downstream estuary and subsequent filling 

or other land conversion activities within the Bayou aux Carpes site woul d 

serve to accelerate this result. Therefore completion of the project woul d 

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. Filling the Bayou aux Car pe s ; ite 

without completion of the project would also eliminate such exports. 
-1 6-

. 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 species mentioned 

above. Completion of the 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 site would 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 that with the completion of the Levee Project, all 

of the evaluation species would show loss of available habitat and that, 

if the site were subsequently filled and developed, it would lose virtually 

all of its current wildlife value. 

Completion of the 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 of the 

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 already begun.to experience the effect of an 

altered hydrological regime. These lakes in the Barataria Basin used to 

be a prime nursery ground for Louisiana commercial fisheries, but now 

drainage canals from the West Bank of New Orleans bypass the swamps and 

enter directly into the lakes. High nutrient loads from the West Bank 

have caused Lake Cataouatche to become eutrophic and fish kills after 

large rainstorms are indicative of the impact of the changes in the natural 

hydrology of this area. The Barataria Waterway also allows urban runoff to 

flow unhindered to the upper part of Barataria Bay. 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 -

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 the public hearing 

corrrnent period. 

Completion of the Levee Project will block public access to the site. 

Draining the site via the proposed pump will eliminate the fisheries 

community and, in conjunction with future filling and other land reclamation 

activities, eventually eliminate the available wildlife habitat. Recreation, 

in the form of hunting and fishing, will be eliminated within the Bayou aux 

Carpes site. 

E. Impacts to the Barataria Unit of the Jean Lafitte National Historical 

Park 

The Barataria Unit of the Jean 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 of culverts under State 

Highway 3134; this area of the park is comprised of approximately 500 

acres of bottomland hardwoods and wooded swamp. The FWS HEP analysis 

revealed that the wetlands of the Barataria Unit are of high value for the 

representative species selected. On site observations included the bald 

eagle, which has been listed by FWS on the endangered species list. In 

addition, there is a great egret and great blue heron nesting colony located 

in the wooded swamp within this section of the National Park. The fish 

species collected in the Bayou aux Carpes site were the same as those 

collected by FWS in the Barataria Unit in September 1984, with the exception 

of six species that were collected only in the park and two species that 

were collected only in the Bayou aux Carpes. This portion of the National 

Park and the Bayou aux Carpes site represent. in form and in function, two 

interconnected segments of one wetland system. 

The Barataria Unit is open to the public for fishing. In addition, the Park Service has placed an emphasis on this area as an educational 

resource. An interpretative walkway traverses typical bottomland hardwoods 

wetlands, then enters a cypress-tupelo swamp. The trail receives high 

visitor use and is a major tool in the park•s education program. Therefore, 

this unit of the National Park provides recreation opportunities in addi tion 

to the aforementioned ecological values. 

The hydrological relationship between the Barataria Unit and Bayou aux 

Carpes site is such that attempts to drain or significantly alter the hydrol ogy 

of the site would result in adverse hydrological alterations within the 

Barataria Unit of the park. A study of the effects that draining of the B~ yo~ 

aux Carpes site would 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-

that as long as the surface water connection remains functional, the forced 

drainage of the B~tcu aux Carpes ~wamp would result in drainage of much of the 

area within the park. This would ultimately result in vegetative transition 

to upland species with loss of productivity, detrital export, existing fish 

and wildlife habitat and the attendant recreational opportunities. 

Alternative means of preserving the wetland values of the park if the 

study area was placed under pump would include placing control structures 

at the highway culverts and implementing an intensive water management 

plan. Although the control structures might initially slow the rate of 

ecological transformation due to draining, EPA feels that the success of 

constantly maintaining flooded conditions is questionable and may eventually 

lead to the deterioration of the wooded swamp and bottomland hardwood 

communities. Attempts to reproduce natural hydrological cycles through 

extensive water management would be expensive, involving major alterations 

in order to pump water into the area and then drain it out again. 

Completion of the Levee Project or any other fill proposals which would 

have the effect of draining, drying, or hydrologically isolating the Bayou 

aux Carpes site would result in adverse impacts to fisheries areas, wildlife 

areas and recreation associated with the Barataria Unit of the Jean Lafitte 

National Historical Park. 

F. Cumulative Impacts 

The significance of ·impacts associated with completing the Levee 

Project and eliminating the ecological contribution of the Bayou aux 

Carpes site are even greater when considered within the context of wetland 

alterations within the Barataria Basin and coastal Louisiana. 

A report to the Louisiana Joint Legislative Committee on Natural 

Resources, stated that over the last 80 years, over 800,000 acres of land 

in coastal Louisiana have been lost. Approximately 58 percent of this has 

occurred over the past 25 years. Recent losses of forested wetlands in the 

state are on the order of 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 of the wetlands because of the significance to Louisiana's 

coastal fishery. The causes cited for these wetland 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, subsidence due to mineral extraction, 

agricultural expansion, and urban expansion. This is significant for two 

reasons. First, some causes of wetland losses are natural and, therefore. 
-19-

not subject to jurisdiction 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 fill i ng operations for urban and commercial development 

in the coastal area continue at the current rate, an additional 186,000 

acres of the state's wetlands will be lost by the year 2000" (USDC, 1980). 

The same types of activities causing significant statewide coastal 

wetland losses are also reported by the Department of Interior as major 

influences in the Barataria Basin, (USFWS, 1983). The Louisiana Department of Transportation and Development (LDTD, 1976) has calculated t he 

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 ridge to the 

northwest of the Estelle Pumping Station Outfall Canal. Also, the effects 

of pumping upon habitat similar to that of the study area may be seen 

immediately west 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 Corrective Measure 

Counsel for some of the landowners proposed, as a corrective measure 

to eliminate the likelihood or unacceptable adverse effects, that the 

Park Service purchase a portion of the tract and that the pumping station 

be relocated to the pipeline canal. In my judgement this proposal .would 

not materially reduce the significant adverse effects of the project, 

even if the Park Service were 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 publ i c 

comment period nor during EPA headquarters' consultation period did any 

of the landowners or their representatives identify any desired property 

uses or specific projects which would involve less significant fi l li ng 

within the Bayou aux Carpes site and, therefore, could possibly be exempted 

from the general prohibition on discharge. However, the Southern Natural 

Gas Pipeline Company by letter dated September 25, 1985 indicated t hat 

routine maintenance of their pipeline would require some discharges of 

dredged or fill material but that it could be done so as to have minimal 

environmental effects. We agree and our final 404(c) determination 

recognizes this exception. 
. 

. ·' ' 

VI. A Discussion 

SSOClates, 

- 20-

The technical material submitted on behalf of the property owners to the 

record in opposition to EPA's studies of the Bayou aux Carpes site consisted 

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 of the record on 

this case. This section provides a discussion of my findings regarding the main points of the report. 

Steimle and Associates reviewed the assessment of the Bayou aux Carpes 

site performed by Region IV, Environmental Services Division in Athens, 

Georgia. Their report states that the sampling effort was restricted to 

a small segment of the site and that the duration of sampling was not 

sufficient to develop seasonal conclusions. In addition, the report states 

that the storage/detention of surface water is not supported by the study 

results; specifically, the Steimle report compared the water level recorder 

readings between the site and Bayou Barataria after a rain event and concluded 

that their similarity contradicted the idea that the Bayou aux Carpes site 

stores water. 

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 include unsampled areas. EPA feels that 

the literature research performed in conjunction with the assessment, as 

well as other site specific studies, such as the HEP analysis performed by 

FWS, provide information on segments of the site not directly sampled by 

Region IV such that the ecological values of the entire site may be ascertained. 

EPA agrees that the duration of sampling was too short to support 

seasonal conclusions in the absence of other data. However, conclusions 

regarding seasonal characteristics, such as the frequency of tidal inundation, 

were reached by combining and comparing onsite results with the review of 

seasonal records and available scientific literature. 

The comparison of water level recorder readings referred to by Steimle 

and Associates is misleading because the recorder in the Bayou aux Carpes 

site is located within 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 

site stores water. In addition, a diurnal tidal range of .3 to .4 feet was 

recorded at the site during EPA's study. This value, when added to the 

average marsh-swamp surface elevation of the swamp resulted in an average 

water level elevation of 1.54 feet NGVD. This elevation was above the 

maximum water level height recorded in Bayou Barataria and study canals 

indicating that the site was 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 a means by which diffe~ent habitats may be compared 

(regarding their value to a certain wildlife species) by comparing each 

against a model. These procedures are a basis for comparison and do not 

provide absolute wildlife support information for a specific area. The 

two above assumptions are made 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 spec i es, 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 Histori cal 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 site will 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 a water 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 conclusions within the three aforementioned reports. 
. ... . ." 

·-22-

VII. Restriction on Use of the 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 I may recommend that any defined area be prohibited 

from specification as a disposal site pursuant to Sections 404{a) and (b). 

If I should determine that the discharge of certain materials will have 

significantly less damaging effects than others, or that limiting discharges 

by amount, methorl, and/or location will reduce the likelihood of unacceptable 

adverse effects, I may recommend that the use of a specified site merely be 

restricted in some manner and/or that the restriction or prohibition apply to 

only a portion of the area under consideration. 

In the present case, my finding of unacceptable adverse effects 

stems from the direct and indirect effects of discharges regulated under 

Section 404 of the Clean Water Act and within the Bayou aux Carpes site. 

Accordingly, I have decided to restrict the use of the Bayou aux Carpes 

site for any discharges of dredged or fill material, including those 

associated with the original Harvey Canal-Bayou Barataria Levee Project, 

with three exceptions. The first exception is discharges associated 

with completion of the modified Harvey Canal-Bayou Barataria Levee Project, 

as described in the Wilson Order of November 16, 1976; on condition that 

the closure at the confluence of Bayou aux Carpes and Bayou Barataria be 

replaced by floodgates. By retaining the current hydrologic regime except 

during storms, the modified project will largely maintain the current 

values of the site. The second exception is discharges associated with 

routine operation and maintenance of the Southern Natural Gas Pipeline 

Company pipeline as long as dredged or fill material is placed in piles 

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 projects with the sole purpose of habitat 

enhancement and specifically approved by EPA. I believe that these 

three types of activities are unlikely to result in significant adverse 

effects to the aquatic environment as long as they are performed in 

accordance with these restrictions as well as any permit conditions 

which may be imposed by the Corps of Engineers through the permit process. 

I have decided not to nake a fourth exception for a disposal site 

for dredged material resulting from dredging in Bayou Barataria as requested 

by the Corps of Engineers since the disposal of dredged material within 

the Bayou aux Carpes site would 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 discharge of dredged or fill material and which would 

have only minor impacts, they may, of course, apply to EPA for reconsideration 

of today•s decision with respect to those particular activities. However, 

based on the current record, only the three specifically identified exceptions 

to my restriction are justified. 

OCT I 6 !S35 

t 

Assistant Administrator Date 

for Office of External Affairs 

U.S. Environmental Protection Agency 
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