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###### Environmental Protection Agency

          - [FRL-8762-2] 

# AGENCY:

Environmental Protection Agency (EPA). 

# ACTION:

Notice of Public Hearing and Request for Comments. 

# SUMMARY:

In 1985, EPA prohibited the discharge of dredged or fill material to wetlands in the Bayou aux Carpes Swamp pursuant to Section 404(c) of the Clean Water Act (CWA). On November 4, 2008, the New Orleans District of the U.S. Army Corps of Engineers (Corps) requested that EPA modify that designation to accommodate discharges to the Bayou aux Carpes wetlands associated with post-Katrina upgrades to the West Bank and Vicinity Hurricane Protection Levee system in Jefferson Parish, Louisiana. EPA solicits written public comment on that request and will hold a public hearing for receipt of comments. 

*Public Hearing:*                         The public hearing will be held in the District Assembly Room at the U.S. Army Corps of Engineers New Orleans District office, 7400 Leake Avenue, New Orleans, LA 70118. The public hearing will commence at 6 p.m. on February 11, 2009, and will end when all comments have been received. During the hearing, any member of the public may submit written comments or present comments verbally.                     

*Public Comments:*                         In addition to providing comments at the public hearing, written comments on the CWA Section 404(c) modification request may be submitted to EPA for 30 days following the date of this notice. Comments should be addressed to Ms. Barbara Keeler (6WQ-EC), EPA Region 6, 1445 Ross Avenue, Dallas, TX 75202-2733. All comments should directly address whether the 1985 Bayou aux Carpes CWA Section 404(c) EPA Final Determination should be modified as requested by the Corps.                     

# FOR FURTHER INFORMATION CONTACT:

                        For information regarding this matter, contact Ms. Barbara Keeler by phone at (214) 665-6698 or by e-mail at                         *keeler.barbara@epa.gov*. Copies of the modification request and supporting documentation are available online at:                         *http://www.nolaenvironmental.gov/​nola_​public_​data/​projects/​usace_​levee/​docs/​original/​ModificationLetterToEPA4Oct08.pdf*. Additional project information may be found at:                         *http://www.nolaenvironmental.gov/​projects/​usace_​levee/​IER.aspx?​IERID=​12*.                     

# SUPPLEMENTARY INFORMATION:

The Bayou aux Carpes CWA Section 404(c) site is located approximately ten miles south of New Orleans, Louisiana, on the West Bank of Jefferson Parish. The site covers approximately 3200 acres, including about 3000 acres of wetlands subject to federal jurisdiction under the CWA. The area is bounded on the north by the east-west Old Estelle Pumping Station Outfall Canal, on the east by Bayou Barataria (Gulf Intracoastal Waterway), on the south by Bayou Barataria and Bayou des Familles, and on the west by State Highway 3134 and the “V-Levee.” Immediately across State Highway 3134 to the west of the site is the Barataria Unit of Jean Lafitte National Historical Park and Preserve. 

Section 404(c) of the CWA authorizes EPA to restrict or prohibit the use of a wetland area as a disposal site for dredged or fill material if the discharge will have unacceptable adverse effects on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. EPA published a CWA Section 404(c) Final Determination prohibiting, with three exceptions, future discharges of dredged or fill material to wetlands in the Bayou aux Carpes site at 50 FR 47267 (November 15, 1985). Since then, the Agency has received two other requests for modification. 

                    In connection with initial construction of the West Bank Hurricane Protection Levee, the Corps requested that EPA modify its CWA Section 404(c) designation to allow extension of the toe of the “V-Levee”                           ( print page 2073)                        into the protected Bayou aux Carpes area. The Corps stated that such a modification would result in significant cost savings to the government and would affect only a relatively small part of the area protected by the Section 404(c) designation. EPA summarily denied that request and in 1988 the Corps modified the levee alignment to avoid discharges to the Bayou aux Carpes CWA Section 404(c) area.                 

                    In 1992, Shell Pipeline Corporation requested that EPA amend the designation to allow the discharge of dredged and fill material to wetlands in the Bayou aux Carpes CWA Section 404(c) area in connection with emergency reconstruction of a leaking pipeline. After notifying interested parties of the request via                     **Federal Register**                     publication and coordinating with the Corps and other agencies, EPA granted the request, publishing the decision at 57 FR 3757 (January 31, 1992). EPA concluded that relocating the pipeline to non-wetlands was infeasible from the perspectives of engineering and public safety, and that the work would have only minimal and temporary effects on the wetlands at issue.                 

The request noticed today was submitted by the Corps and is associated with proposed improvements to the West Bank and Vicinity Hurricane Protection Levee system. By way of a letter dated November 8, 2008, the Corps requested that the designation be modified to allow construction of an earthen berm and floodwall in an area disturbed by dredged material discharges predating the 1985 404(c) designation. The construction area is located along the west bank of the Gulf Intracoastal Waterway, or Bayou Barataria, from its junction with the Old Estelle Pumping Station Outfall Canal to a point at which the Corps proposes to construct a sector gate across the Waterway. As described in the modification request, the berm and floodwall would be 14 to 16 feet high and would occupy an area no greater than 4,200 linear feet by 100 linear feet. No more than ten acres of wetlands in the Bayou aux Carpes CWA Section 404(c) site would be affected and other design and construction features have been incorporated to minimize impacts to the wetlands. 

The Corps is currently gathering baseline data to evaluate potential wetland mitigation options and other project features to improve the existing hydrology of the Bayou aux Carpes site. The Corps has committed to constructing those features if the analyses indicate that they would be ecologically beneficial. Discharges of dredged or fill material associated with such construction would require no additional modification to the CWA Section 404(c) designation, which contains an exception for approved habitat enhancement projects. 

                    Additional information on the Corps project and its relationship to the Bayou aux Carpes site may be found in the alternative National Environmental Policy Act document, known as Individual Environmental Report #12 (IER #12), which is posted online at:                     *http://www.nolaenvironmental.gov/​projects/​usace_​levee/​IER.aspx?​IERID=​12*.                 

The public hearing referenced above will be jointly conducted by EPA Region 6 and the Corps. At the hearing, EPA will receive comments on the Corps request to EPA to modify the Bayou aux Carpes CWA Section 404(c) designation and the Corps will receive comments on IER #12. 

                    After considering all comments submitted, EPA Region 6 will transmit to the EPA Office of Water in Washington, DC, a written recommendation on whether the CWA Section 404(c) modification request should be granted or denied. The Assistant Administrator for Water will make the final decision and publish a notice of its availability in the                     **Federal Register**                    .                 

Dated: January 6, 2009. 

Richard E. Greene, 

Regional Administrator, EPA Region 6.

[FR Doc. E9-690 Filed 1-13-09; 8:45 am] 

BILLING CODE 6560-50-P