Federal Register / Vol. 60, No. 59 / Tuesday, March 28, 1995 / Notices 15913

The permittee filed the request on

March 10, 1995, and the preliminary

permit for Project No. 11445 shall

remain in effect through the thirtieth

day after issuance of this notice unless

that day is a Saturday, Sunday or

holiday as described in 18 CFR

385.2007, in which case the permit shall

remain in effect through the first

business day following that day. New

applications involving this project site,

to the extent provided for under 18 CFR

Part 4, may be filed on the next business

day.

Lois D. Cashell,

Secretary.

[FR Doc. 95–7536 Filed 3–27–95; 8:45 am]

BILLING CODE 6717–01–M

ENVIRONMENTAL PROTECTION

AGENCY

[FRL–5179–9]

Agency Information Collection

Activities Under OMB Review

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Notice.

SUMMARY: In compliance with the

Paperwork Reduction Act (44 U.S.C.

3501et seq.), this notice announces that

the Information Collection Request (ICR)

abstracted below has been forwarded to

the Office of Management and Budget

(OMB) for review and comment. The

ICR describes the nature of the

information collection and its expected

cost and burden.

DATES: Comments must be submitted on

or before April 27, 1995.

FOR FURTHER INFORMATION OR A COPY

CALL: Sandy Farmer at EPA, (202) 260–

2740, please refer to EPA ICR #0794.06.

SUPPLEMENTARY INFORMATION:

Office of Prevention, Pesticides and

Toxic Substances

Title: Notification of Substantial Risks

Under section 8(e) of the Toxic

Substances Control Act (TSCA). (EPA

ICR No.: 0794.06; OMB No.: 2070–

0046). This is a request for extension

of the expiration date of a currently

approved collection

Abstract: Under section 8(e) of TSCA,

chemical manufacturers, importers,

processors, and distributors must

immediately inform EPA when they

obtain information which indicates

that their product(s) may present a

substantial risk of injury to health or

the environment. Section 8(e) of

TSCA is an important and useful tool

for early warning and the

identification of new substantial risks

posed by exposure to chemical

substances. The EPA and other

Federal agencies use this information

to determine and control chemical

risks

Burden Statement: The annual public

reporting burden for this collection of

information is estimated to average 21

hours per initial section 8(e)

submission and 4 hours per followup/supplemental section 8(e)

submission. EPA experience has

shown that approximately 2.2 followup/supplemental section 8(e)

submissions are received on a yearly

basis per initial submission. This

estimate includes the time needed to

review instructions, gather and

submit the data needed, and complete

and review the collection of

information

Respondents: Chemical manufacturers,

importers, processors, and

distributors

Estimated No. of Respondents: 450

Estimated No. of Responses Per

Respondent: 3

Estimated Total Annual Burden on

Respondents: 13,400 hours

Frequency of Collection: On occasion

Send comments regarding the burden

estimate, or any other aspect of the

information collection, including

suggestions for reducing the burden,

(please refer to EPA ICR #0794.06 and

OMB #2070–0046) to:

Sandy Farmer, EPA ICR #0794.06, U.S.

Environmental Protection Agency,

Information Policy Branch—(2136),

401 M Street, SW., Washington, DC

20460.

and

Tim Hunt, OMB #2070–0046, Office of

Management and Budget, Office of

Information and Regulatory Affairs,

725 17th Street, NW., Washington, DC

20503.

Dated: March 22, 1995.

Paul Lapsley,

Regulatory Management Division.

[FR Doc. 95–7593 Filed 3–27–95; 8:45 am]

BILLING CODE 6560–50–M

[FRL–5172–6]

Agency Information Collection

Activities Under OMB Review

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Notice.

SUMMARY: In compliance with the

Paperwork Reduction Act (PRA) (44

U.S.C. 3501 et seq.), this notice

announces the Office of Management

and Budget’s (OMB) responses to

Agency PRA clearance requests.

FOR FURTHER INFORMATION CONTACT:

Sandy Farmer (202) 260–2740, please

refer to the EPA ICR No.

SUPPLEMENTARY INFORMATION:

OMB Responses to Agency PRA

Clearance Requests

OMB Approvals

EPA ICR No. 1716.01; NESHAP for

Wood Furniture Manufacturing

Operations, 63-JJ; was approved 02/10/

95; OMB No. 2060–0324; expires 02/28/

98.

EPA ICR No. 0559.05; Application for

Reference or Equivalent Method

Determination; was approved 01/31/95;

OMB No. 2080–0005; expires 01/31/98.

EPA ICR No. 1432.15; Recordkeeping

and Periodic Reporting of the

Production, Import, Export, Recycling,

Destruction, Transhipment and

Feedstock use of Ozone-Depleting

Substances; was approved 01/31/95;

OMB No. 2060–0170; expires 09/30/96.

EPA ICR No. 1463.03; National Oil

and Hazardous Substances Pollution

Contingency Plan (NCP); was approved

01/31/95; OMB No. 2050–0096; expires

01/31/98.

EPA ICR No. 1304.04; Application for

Preauthorization of a CERCLA Response

Action Claim for CERCLA Response

Action; was approved 01/27/95; OMB

No. 2050–0106; expires 01/31/98.

EPA ICR No. 0229.09; Discharge

Monitoring Report for the NPDES/

Sewage Sludge Monitoring Reports; was

approved 01/20/95; OMB No. 2040–

0004; expires 01/31/98.

EPA ICR No. 1647.01; Exports from

and Imports to the United States under

the OECD Decision; was approved 01/

27/95; OMB No. 2050–0143; expires 01/

31/98.

EPA ICR No. 1732.01; Application to

or Participation in the National Radon

Measurement Proficiency (RMP)

Program and/or the National Contractor

Proficiency (RCP) Program; was

approved 02/02/95; OMB No. 2060–

0315; expires 02/28/98.

Dated: March 21, 1995.

Paul Lapsley,

Director, Regulatory Management Division.

[FR Doc. 95–7594 Filed 3–27–95; 8:45 am]

BILLING CODE 6560–50–F

[FRL–5179–6]

Russo Development Corporation Site,

NJ; Proposed Amendment to March 21,

1988, Clean Water Act Section 404(c)

Final Determination

AGENCY: U.S. Environmental Protection

Agency.
15914 Federal Register / Vol. 60, No. 59 / Tuesday, March 28, 1995 / Notices

ACTION: Notice of consideration of

amendment of Section 404(c) final

determination and request for comment.

SUMMARY: Notice is hereby given that

the Environmental Protection Agency

(EPA) is considering amendment of the

total site prohibition identified in EPA’s

March 21, 1988, Final Determination

concerning the Russo Development

Corporation (Russo) site in Carlstadt,

New Jersey, pursuant to Section 404(c)

of the Clean Water Act (CWA). EPA is

considering amendment of this Final

Determination on the basis that

compensatory mitigation now proposed

by Russo would satisfactorily address

the unacceptable adverse effects to

wildlife described in the March 21,

1988, document. This amendment

would be done as a prerequisite to

Russo seeking CWA after-the-fact

authorization for the past discharge of

fill material into the subject wetlands

for the purpose of constructing a

warehouse complex, as well as

authorization for the future discharge of

fill material into remaining wetlands for

additional development activities. This

proposed action would revise the

Section 404(c) prohibition adopted in

1988 to a restriction on discharges at the

site based on Russo’s meeting the

compensatory mitigation requirements

specified in this document.

EPA’s 1988 Final Determination in

this case concerned a 57.5 acre wetland

in Carlstadt, New Jersey where Russo

proposed to maintain 52.5 acres of

unauthorized fill (of which 44 acres

have been built upon) and to fill the

remaining five acres of wetland of a 13.5

acre parcel to complete a warehouse

complex. The Final Determination states

that the Russo site was/is very valuable

to wildlife from a site specific and

cumulative standpoint and, therefore,

that its values must be retained. EPA

also found that the compensatory

mitigation proposed by Russo would not

replace those wildlife values that had

been and were anticipated to be lost. In

the Final Determination, however, EPA

indicated that this prohibition could be

reconsidered upon demonstration that

the adverse effects to wildlife have been

satisfactorily addressed.

EPA is requesting comments on this

proposed amendment of the Final

Determination’s total site prohibition to

a restriction that would allow

specification of the 13.5 acre site as a

discharge location provided Russo

agrees to deed over an approximately 16

acre parcel of wetlands in Ridgefield,

N.J. for preservation, and provide

$700,000 for the purpose of enhancing

wetlands at this site and on sites to be

contained in the Hackensack

Meadowlands District mitigation bank.

In particular, EPA is interested in

comments relating to the currently

proposed compensatory mitigation and

its ability to replace the wildlife values

lost as a result of past fill activities, as

well as anticipated losses due to

proposed discharges in the subject

wetlands.

DATES: Written comments concerning

this proposed amendment must be

submitted to EPA on or before April 27,

1995.

ADDRESSES: Copies of EPA’s 1988 Final

Determination and relevant documents

supporting the proposed modification

are available for public inspection upon

request at the following locations:

U.S. Environmental Protection Agency,

Office of Wetlands, Oceans, and

Watersheds, Wetlands Division, 499

South Capitol Street, SW, Fairchild

Building, Room 703, Washington, DC

20009

U.S. Environmental Protection

Agency—Region II, Water

Management Division, 26 Federal

Plaza, Jacob K. Javits Federal

Building, Room 1137, New York, NY

10278

Comments must be submitted in

writing to Joseph P. DaVia, Acting Chief,

Elevated Cases Section, Mail Code:

4502F, U.S. EPA, 401 M Street SW,

Washington, DC 20460. Written

comments may also be sent by facsimile

to Mr. DaVia at (202) 260–7546.

FOR FURTHER INFORMATION CONTACT: John

Ettinger (EPA) at (202) 260–1190.

SUPPLEMENTARY INFORMATION: On March

21, 1988, the Assistant Administrator

(AA) for Water of the United States

Environmental Protection Agency (EPA)

rendered a final determination which

prohibited the designation of 57.5 acres

of wetlands as a disposal site for fill

material. These wetlands were and are

currently owned by the Russo

Development Corporation (Russo), and

are located in the Hackensack

Meadowlands in Carlstadt, Bergen

County, New Jersey. The reason cited by

the AA for Water for this action was that

the discharge of fill would have

unacceptable adverse effects, both

immediately and cumulatively, to

wildlife in the Meadowlands. This

action was taken pursuant to Section

404(c) of the Clean Water Act (CWA,

U.S.C. 1251 et seq.), which authorizes

the Administrator (who has delegated

this authority to the AA for Water), after

notice and opportunity for a public

hearing, to prohibit or restrict the use of

any defined area as a disposal or

discharge site for dredged material or

fill. In such a case, the AA for Water

must have first determined that such

discharge will have an unacceptable

adverse effect on municipal water

supplies, shellfish beds and fishery

areas (including spawning and breeding

areas), wildlife, or recreational areas.

Procedural History and Rationale for

the Determination

The chronology of the Corps and EPA

actions leading up to EPA’s 1988 404(c)

determination is summarized in the

Final Determination of the AA for

Water. Briefly, the events are

summarized as follows: In 1981, Russo

placed 44 acres of fill for the purpose of

constructing a warehouse complex in

Carlstadt in the Hackensack

Meadowlands in Bergen County, New

Jersey (44 acre tract). Russo constructed

six warehouses and began a seventh on

the 44 acre tract. Russo subsequently

excavated most of the adjacent 13.5 acre

parcel (13.5 acre tract) and then filled

8.5 of the 13.5 acres in order to build

more warehouses. The Corps issued a

cease and desist order subsequent to his

placement of 8.5 acres of fill. Five acres

of the 13.5 acre tract remain wetland.

Russo excavated two to three acres of

the unfilled five acres to remove

unsuitable soils and fill with suitable

construction material. This excavated

area subsequently ponded and

developed into open water with aquatic

and emergent vegetation.

EPA first learned of Russo’s fill

activities in an April 22, 1985, letter

from the Corps which announced their

investigation of unauthorized fill

activity on the 8.5 acres. The Corps

subsequently extended enforcement

action to the 44-acre tract as well. EPA

initially recommended either removal of

fill or mitigation to compensate for the

wetlands losses. The Corps processed an

after-the-fact permit application and

issued a public notice on August 28,

1985, proposing to authorize 55 acres of

existing fill (later corrected to 52.5

acres) and to authorize the placement of

additional fill in the remaining five

acres of wetland.

On December 22, 1986, the Corps

submitted a Notice of Intent to Issue a

permit to the Russo Development

Corporation accompanied by a

Statement of Findings, environmental

assessment, and evaluation of

compliance with the Section 404(b)(l)

Guidelines. The permit decision would

authorize 0.5:1 value-for-value

compensation for the 57.5 acre loss of

wetlands. The mitigation proposal

would provide for the enhancement of

a nearby, unspecified wetland northeast

of the project site and would secure the

permanent preservation of a 23 acre

wetland site in Troy Meadows in the

Passaic River basin (to the southwest of
Federal Register / Vol. 60, No. 59 / Tuesday, March 28, 1995 / Notices 15915

1As part of the Final Determination, the AA for

Water noted that portions of the areas delineated as

old field on EPA’s map of the Russo site in its predischarge condition may have contained uplands,

because the information on vegetation at this point

was inconclusive and raised the possibility that

portions of the old field areas may have been

uplands. That consideration did not alter the final

decision, which was based on conclusions

concerning the extent of the wildlife values

provided by the site, nor did it alter conclusions

that the proposed/permitted mitigation was

inadequate, since the portions of the tract in

question comprised a small portion of the impact

area. The jurisdictional issue was left unresolved

due to Russo’s desire for a timely decision by EPA.

However, it was noted that the issue might

ultimately affect the precise amount of mitigation

necessary, since no compensation would be

required for areas determined to be uplands, which

are not jurisdictional under Section 404.

the Hackensack River basin). EPA

responded on December 24, 1986,

requesting a meeting with the Division

Engineer and suspension of further

action on the project. The U. S. Fish &

Wildlife Service (FWS) also elevated the

decision under CWA Section 404(q).

Subsequently, EPA and the Corps

attempted to negotiate a resolution

which would provide a 1:1 value-forvalue compensation, but were

unsuccessful. Unable to resolve both

agencies’ concerns, the Corps eventually

issued its final Notice of Intent to Issue

on March 23, 1987, proposing to

authorize 52.5 acres of existing fill and

placement of five additional acres of fill,

and to require Russo to compensate on

a 0.5:1 value-for-value basis for the loss

of 57.5 acres of wetlands. Under Section

404(q) of the CWA, EPA requested

elevation of the permit decision to

national level review on April 27, 1987,

and that request was denied by the

Department of the Army on May 8,

1987.

Having exhausted administrative

procedures to resolve agency concerns,

the Regional Administrator for Region II

then notified the District Engineer and

the Russo Development Corporation on

May 26, 1987, in accordance with

Section 404(c), of his intent to issue a

public notice of a proposed

determination to prohibit or restrict the

discharge of fill on the Russo site, based

on his belief that the discharge had

resulted and would result in

unacceptable adverse effects to wildlife.

The letter afforded the mentioned

recipients 15 days to demonstrate that

no unacceptable adverse effects would

occur as a result of permit issuance. On

May 27, 1987, the District Engineer

responded that his analysis clearly

demonstrated that no unacceptable

adverse effects would occur from permit

issuance. Russo responded on June 10,

1987, concluding that EPA could not

successfully argue that the project

would have an unacceptable adverse

effect on the environment, and they

requested the Corps decision to issue a

permit be affirmed. The Regional

Administrator concluded that no new

information had been presented and

therefore he was not satisfied that the

project would not pose unacceptable

adverse impacts.

On August 7, 1987, a public notice

was published in the Federal Register

and the New Jersey Star Ledger

announcing the proposed determination

to prohibit or restrict the discharge of

fill material. The comment period

extended for 60 days and closed on

October 6, 1987. The notice requested

comment on the need for a public

hearing. There was response requesting

a public hearing, and the holding of a

hearing was found to be in the public

interest. On October 13 and 14, 1987, a

public notice was published in the New

Jersey Star Ledger and the Federal

Register scheduling a public hearing for

November 5, 1987. The hearing was

held and the comment period closed on

November 20, 1987.

The Regional Administrator

forwarded his Recommended

Determination to the AA for Water,

along with the Administrative Record of

the case. The Recommended

Determination was adopted by the AA

for Water and was incorporated into his

final decision. The decision to prohibit

the specification of the Russo wetlands

as a fill disposal site was based upon

findings by the AA for Water that: 1.

The wetlands on the Russo tracts were

valuable to wildlife because they

represented a diverse array of wetland

types, types which are rare in the

context of the Meadowlands landscape;

2. the wetlands on the Russo tracts

supported/support a large mix of

species, most of which are declining in

New Jersey due in part or whole to a

loss and/or deterioration of available

habitat (of particular importance was/is

the ability of the site to support

populations of black duck, a FWS

species of special concern, whose

populations have declined nationally

due to a loss and/or deterioration of

available habitat); 3. the loss of this

habitat would cause unacceptable

impacts to wildlife values unless these

values were maintained through

mitigation; and, 4. the proposed/

required mitigation would neither

compensate for the loss of

approximately 57.5 acres of valuable

wildlife habitat nor constitute

appropriate and practicable mitigation.

Therefore, the mitigation would not

offset the significant wildlife impacts

identified. Thus, the fill had resulted

and would result in unacceptable

adverse impacts to wildlife under

Section 404(c) of the Clean Water Act.

Accordingly, the AA for Water

prohibited the designation of the Russo

tracts as a discharge site.

As part of the findings and

conclusions which led to the

prohibition of the Russo site as a fill

discharge site, the AA for Water noted

the following:

In the present case, my findings of

unacceptable adverse effects stems [sic] from

current and anticipated losses of valuable

wildlife habitat that has/will result from

direct effects of discharges regulated under

Section 404 of the CWA and within the

Russo site. As previously stated, however, fill

has already been placed on approximately

52.5 acres of wetlands and only 5 acres

remain unfilled. Although I have concluded

that the wildlife values previously and

currently provided by the Russo tract are

important enough to preserve, the fact

remains that most of the site has been filled

and its value to wildlife destroyed. Also, I am

mindful that under these circumstances, final

action by EPA pursuant to Section 404(c) of

the CWA will not prevent the occurrence of

most of the unacceptable adverse effect or

accomplish reversal of such effects. Further

actions will be necessary, either within the

context of voluntary compliance by Russo or

an enforcement action, to determine the

extent of wetland value replacement and

pursue compensatory action. The site has

been damaged and, indeed, some or all of

this damage may be irreversible. In addition,

the presence of tenanted warehouses on the

unauthorized fill raises other issues that run

counter to restoration of the site. Mitigation

has been a focal point of discussions with

respect to this project during the Corps

permit process as well as a contributing

factor to my determination of unacceptable

adverse effects. If the condition of the Russo

tract precludes onsite restoration from a

technical or practical standpoint, then EPA

would expect to pursue replacement of lost

wildlife values elsewhere. Mitigation of lost

wildlife values will not be required for any

portions of the previously discussed old field

areas that are determined to have been

uplands.1

The AA for Water did note the

following:

I will reconsider this prohibition at the

request of EPA’s Regional Administrator in

Region II upon a showing that the

unacceptable adverse effects to wildlife have

been addressed to his satisfaction.

Judicial Decisions Related to the

Proposed Amendment of EPA’s 404(c)

Determination

Russo brought suit against the Corps

and EPA in U.S. District Court. Russo

Development Corporation v. Thomas et

al., No. 87–3916 (D.N.J.). In a series of

opinions, the court vacated in part and

remanded in part EPA’s 404(c) decision.

In its first decision, the court found the

Corps had been arbitrary and capricious

in requiring Russo to submit jointly an
15916 Federal Register / Vol. 60, No. 59 / Tuesday, March 28, 1995 / Notices

2Black ducks would have used the mixed

emergent areas for feeding and resting, which are

identified in the January 19, 1988, Recommendation

of the Regional Administrator pursuant to Section

404(c) of the CWA.

application for a permit encompassing

both the 13.5 and 44 acre sites. The

court found that, on the facts of this

case, the activities on the two sites did

not constitute the ‘‘same project’’ under

applicable Corps regulations (33 CFR

325.1(d)(2)). To remedy this error, the

court stated that it would ‘‘limit the

plaintiff’s application for a Corps permit

and the subsequent grant and veto of the

permit to the 13.5 acre parcel.’’ 735 F.

Supp. 631, 637 (D.N.J. 1989). This

decision therefore vacated EPA’s

Section 404(c) determination as it

related to the 44 acre parcel. See also

Id., at 639 (‘‘Because of the court’s

decision that the veto of the 44 acre

parcel is void, the question [of the

validity of EPA’s 404(c) decision]

concerns only the 8.5 acre tract.’’). The

court also held in this opinion that EPA

should have considered the New Jersey

Coastal Management Program in its

404(c) determination. The court also

dismissed Russo’s claims that EPA’s and

the Corps’ actions violated Russo’s due

process rights under the Constitution.

On May 17, 1991, the court ruled on

the remainder of Russo’s claims in this

case. Russo Development Corporation v.

Reilly, 1991 U.S. Dist. Lexis 20965, 21

ELR 21345. The court first dismissed

Russo’s claims that EPA and the Corps

acted in bad faith, and that the agencies

had failed to demonstrate that they had

jurisdiction over the 13.5 acre site under

the CWA. Consistent with the holding

in its 1989 opinion that it was arbitrary

and capricious for the Corps and EPA to

link the 44 acre and 13.5 acre parcels in

their decisions, the court remanded the

permitting and veto decisions for further

considerations. The court further

directed the Corps and EPA to consider,

on remand, the precise extent of CWA

jurisdiction over the 13.5 acre site and

the appropriate mitigation to

compensate for impacts to the site. The

court also directed EPA to articulate on

remand its reasons for any deviations of

its decision from the New Jersey Coastal

Zone Management Plan.

New Information and Developments

Supporting Reconsideration of the

404(c) Prohibition

Since 1988, several important pieces

of new information concerning the site

and concerning wildlife habitat

utilization within the Meadowlands

have been developed subsequent to the

prohibition of the site for fill discharge.

These include:

1. A re-evaluation of the extent of

wetlands on the 13.5-acre site (April 15,

1992, Corps memorandum). The Corps

determined that 3.27 acres of the 13.5

acre site are not considered to have been

wetlands, while the remaining 10.23

acres were wetlands prior to disturbance

in 1985. Based on the criteria used in

this re-evaluation, EPA has re-evaluated

the pre-discharge extent of jurisdiction

on the 44-acre parcel as well, and finds

that approximately 40.7 acres of this

tract were wetlands subject to

jurisdiction under Section 404 of the

CWA.

2. A study of habitat utilization by

numerous species of wildlife,

particularly birds, of Phragmitesdominated habitat in the Meadowlands.

This report, Site Survey Report:

Ecological Studies, Hartz Mountain

Development Corporation Villages at

Mill Creek, was prepared in December,

1991 by U.S. EPA Region II and Gannett

Fleming, Inc. This study provides

detailed information on the wetland

characteristics which are of value to

wildlife in the Meadowlands, which

species use this habitat, and how this

habitat is used. Based on this

information, a more precise

determination can be made of the

wetland values lost on the Russo tracts,

and what features could be provided in

a mitigation proposal to replace those

values. In particular, this study

provided detailed information on the

use of these habitats by black duck,

which is a FWS species of special

concern. In the Final Determination, the

AA for Water’s conclusions that the fill

would cause unacceptable adverse

effects to wildlife were strongly

influenced by the impacts of the fill on

black duck. Based on this new

information, a better estimate of the

Russo tract’s importance in supporting

black duck populations in its predischarge state may be made.2 In

addition, habitat attributes which

support black duck populations in the

Meadowlands have been identified.

These habitat attributes can be provided

in a mitigation design for the purpose of

more predictably increasing habitat

value to black ducks. This would

provide compensation for the loss to

this species and would reduce

cumulative impacts to this species.

3. The development of a Mitigation

Banking Agreement for the

Meadowlands. This agreement is

currently being developed and is

expected to be completed shortly. Under

this agreement, the Hackensack

Meadowlands Development

Commission (HMDC) would develop

and administer several mitigation banks.

Some of these would be implemented

by performing mitigation on publicly or

quasi-publicly owned wetlands (thus

not requiring outright purchase of these

lands), and HMDC is seeking to acquire

additional lands on which to implement

mitigation. Since EPA and the Corps

would be among the Federal agencies

participating in the mitigation banking

process, they would be advising HMDC

on the design, construction, monitoring

and remedial action for mitigation

projects on a more comprehensive and

consistent scale. Consequently, value

replacement, performance, and success

could be more predictably and

consistently ensured through this

mechanism. Thus, mitigation

opportunities within the Hackensack

River basin, within the area of impact,

could be provided where opportunity

was previously scarce or unavailable to

private developers.

4. Selected terms of a proposed

agreement reached between the Corps,

EPA and Russo to settle litigation

regarding this matter. Under the

settlement terms, Russo would deed

over, for preservation and enhancement,

an approximately 16-acre parcel of

wetlands in Ridgefield, NJ, (the

Ridgefield tract) located approximately

1.5 miles from the subject Russo tracts.

Russo would also provide $700,000 for

the purpose of enhancing wetlands,

both at this site and on sites contained

in the HMDC mitigation bank.

The Final Determination by the AA

for Water treated the 44 and 13.5 acre

tracts as a single ecological unit for the

purposes of evaluating their loss to the

ecosystem. As discussed above, the

court in Russo Development

Corporation v. Thomas, et al.

invalidated the linkage of the 13.5 and

44 acre parcels by the Corps, and

vacated EPA’s 404(c) determination as

to the 44 acre parcel. Therefore, the

proposed amendment to revise EPA’s

404(c) determination would amend only

the portion of EPA’s original 404(c)

prohibition that has remained in effect

(i.e., for the 13.5 acre parcel). Because

the proposed settlement terms discussed

above seek to resolve all issues related

to both the 44 and 13.5 acre parcels,

however, this notice also discusses the

adequacy of mitigation as it relates to all

of the activities conducted by Russo on

the two sites. Russo has agreed to waive

any objections to the agencies’

consideration of the totality of the

impacts of fill at the 44 acre and 13.5

acre sites in their determinations on

remand.

Wetland Values Lost, and Outline of

Unacceptable Adverse Effects to

Wildlife

The Final Determination of the AA for

Water identified several habitat features
Federal Register / Vol. 60, No. 59 / Tuesday, March 28, 1995 / Notices 15917

3The acreages have been calculated based on the

wetland map provided in the Maguire Group report

entitled, Vegetation Types—1978. Because the

extent and description of these types is based on

aerial photointerpretation, and not on precise

survey, acreages can only be approximate.

on the Russo tracts which contributed to

their ecological importance. First,

several different types of wetland

habitat were found on each of the tracts.

This juxtaposition of wetland types to

each other, as well as to surrounding

wetland areas, provided habitat

diversity in a landscape that is generally

somewhat monotypic in nature. Second,

several of the wetland types, viz., wet

meadow, mixed emergent, and wooded,

are relatively rare in the Meadowlands,

and provided habitat for a large mix of

species. Many of these species are

experiencing population declines

within New Jersey, which are

attributable in whole or in part to loss

and/or deterioration of available habitat.

The interspersion of habitat types, along

with the relative rarity of those types,

made the Russo tracts valuable to

wildlife. The breakdown of wetland

types by approximate acreage 3 is

provided in Table 1 below:

TABLE 1.—ACREAGE (APPROXIMATE)

OF WETLAND TYPES COMPRISING

THE TWO RUSSO TRACTS IN

CARLSTADT, NJ

Wetland type 13.5 acre

tract

44 acre

tract

Wet Meadow ..... 3.68 ac 21.73 ac

Mixed Emergents .............. 1.14 ac 2.92 ac

Wooded ............. 0.00 ac 0.37 ac

Phragmites ........ 5.41 ac 15.69 ac

Old field (subsequently determined to be

non jurisdictional) ............. 3.27 ac 3.30 ac

Total ........... 13.50 ac 44.00 ac

The conclusion and findings of the

Final Determination were that

unacceptable adverse effects to wildlife

were caused by/ would be caused by the

fill unless those values are maintained

through mitigation. While the quality

and importance of the lost wetlands to

the lower Hackensack watershed

weighed strongly in the AA for Water’s

decision to prohibit specification of the

sites for disposal, perhaps the most

significant factor contributing to the

finding of the AA for Water was that the

impacts were unlikely to be adequately

compensated by the proposed/permitted

mitigation plan.

The mitigation plan which was

originally proposed by Russo during the

permit evaluation was considered by

EPA to be both inappropriate in type

and inadequate in its extent to provide

sufficient compensation for the

wetlands values lost. The plan

comprised two parts: enhancement of

offsite wetlands within the Hackensack

basin and preservation of wetlands

outside the basin. The enhancement

component of the mitigation proposal

would have provided enhancement of

an unspecified acreage of wetlands

somewhere to the northeast of the site.

Since the location and exact acreage

proposed for enhancement were never

identified, the existing and postenhancement wetland values could not

be evaluated to determine how much

compensation would have been

provided by those means.

The other component, which was the

proposed preservation of a 23 acre

wetland parcel outside the Hackensack

River basin, would not have provided

any increase in wetland value to

compensate for wetland values lost as a

result of the filling activity, since the

parcel was already a functioning

wetland and no other enhancement

activity was proposed to provide an

increase in value. Furthermore, any

wetland value which might have been

added to that parcel would not have

provided compensation in the

watershed where the damage occurred,

and so could not have compensated for

the loss to the Hackensack River system.

Finally, the Corps permit required only

0.5:1 value for value replacement,

which would have resulted in, at best,

a 50% loss of wetland values as a result

of Russo’s activities.

Desirability of Obtaining Compensatory

Mitigation

Russo’s activities on the 13.5-acre site

have destroyed almost all of the predischarge wetland characteristics of the

site. The site was almost completely

excavated of its original soil. Eight and

one half acres were subsequently filled

with shot rock to a depth of several feet.

The stone used for fill was of varying

sizes, but most of the material would be

classified as boulders, according to the

Wentworth scale. The fill material has

continued to compact and consolidate

in the ensuing nine years since the fill

activity took place, and it is likely that

the underlying soil layers have also

compacted. Therefore, the likelihood of

restoring this site to its original

condition or to a suitable wetland

condition is small, and it is not

practicable or feasible to consider this as

a preferred option. Consequently, offsite

mitigation would need to be provided to

eliminate the unacceptable adverse

effects to wildlife identified in the

decision of the AA for Water to prohibit

specification of this site under Section

404(c).

Likewise, the 44-acre parcel was filled

in 1981 with material of the same type.

The soils on this site are more likely to

have compacted and consolidated into

material unlikely to support site

restoration, because the site has been

constructed on and has had functioning

warehouses with concomitant large

vehicle traffic since the early 1980’s.

This site is even less likely to be

restorable to a suitable wetland

condition than the 13.5 acre parcel

owing to this factor and also to the fact

that tenanted warehouses occupy the

site. As such, offsite compensatory

mitigation would be needed to offset the

wildlife values lost as a result of the fill

activity.

Mechanisms To Provide Compensatory

Mitigation

The changes in circumstances and

information described above have

improved the ability of Russo to achieve

reasonable compensation for wetland

wildlife values lost as a result of the

unauthorized discharge of fill. One of

the main factors which influenced

Russo’s original mitigation proposal was

the alleged difficulty in privately

obtaining large tracts of wetlands within

the Meadowlands for the purpose of

providing compensatory mitigation.

This can now be addressed with the use

of a mitigation bank, which will obtain

and have available large wetlands tracts

for the purposes of providing

compensatory mitigation. HMDC’s

proposed mitigation bank will make

wetland mitigation on a substantial

acreage within the Hackensack River

basin, the area of impact, available for

purchase. With adequate funding,

wetland enhancement through this

mitigation bank can be obtained, and

will provide significant compensation

opportunity.

Under the terms of the settlement

discussed above, Russo will provide

approximately 16 acres of wetlands

which will provide additional

compensatory value via enhancement.

Thus, between the land to be provided

by Russo and the lands available for

enhancement in the mitigation bank,

sufficient land for mitigation purposes

is now reasonably available to provide

compensation for the wetlands losses

resulting from the discharges of fill on

the Russo tracts.

Under the terms of the settlement,

Russo also would provide a total of

$700,000 for the purposes of

implementing compensatory mitigation

through the HMDC mitigation bank. A

portion of this funding will be spent
15918 Federal Register / Vol. 60, No. 59 / Tuesday, March 28, 1995 / Notices

4This is consistent with the findings and

guidance of the AA for Water set forth in the Final

Determination.

providing enhancement to the 16-acre

Ridgefield tract. The remainder of the

funds will be used to enhance the

wetland values of acreage within the

HMDC mitigation bank. The means to

provide compensation for lost wetland

values are therefore available. What

remains is to provide a demonstration

that adequate compensation, and

appropriate compensation, can be

provided through this proposal.

Determination of Adequate

Compensation

The additional information on habitat

values in the Meadowlands which was

provided in the EPA study previously

referenced provides useful guidance for

the appropriate design of mitigation

sites in the Meadowlands. A mitigation

design which incorporates the habitat

features identified by this study as

valuable is likely to provide a greater

guarantee of success in achieving the

goal of no net loss in wetland values.

Such a design would be directly tailored

to wildlife needs in the Meadowlands,

and is thus appropriate to compensate

for the particular values lost from the

Russo tracts. For example, open water

areas which are interspersed among and

surrounded by Phragmites were found

to be preferentially used as resting/

feeding habitat by overwintering black

ducks, Anas rubripes, a FWS species of

special concern. The open water

provides necessary feeding/resting

habitat, while the associated Phragmites

provides shelter from winter winds,

thus reducing caloric requirements and

stress on this species. Mitigation

designed to increase hydrologic flow

and provide open water areas

interspersed with Phragmites will

greatly increase the value of those tracts

to black duck populations in the

Meadowlands. Such a component

responds directly to one of the wildlife

losses of concern identified by the AA

for Water in the Final Determination,

and will provide compensation for this

loss. While the exact location of the

acreage proposed for enhancement has

not yet been specified, the mitigation

bank locations which are being

evaluated by HMDC have the similar

habitat features and are generally good

candidates for enhancement. The

candidate sites are large tracts, mostly

dominated by a monoculture or nearmonoculture of Phragmites. Most of the

proposed bank sites have a reduced or

nonexistent flow and interspersion of

water, or have been cut off from tidal

inundation. A variety of different

mitigation activities are able to be

performed on such sites and will

provide good compensation for wildlife

values which were lost/are being lost

from the Russo tracts.

Since the mitigation banks are not yet

functioning, the precise type and

amount of mitigation that will be

performed to compensate for the

wetlands values lost from the Russo

tract has yet to be determined. However,

outlined below in Table 2 is an example

mitigation strategy that would likely be

feasible to implement with the funding

made available by Russo for mitigation

activities. EPA believes, moreover, that

such a mitigation strategy would

adequately compensate for wetland

losses experienced on the Russo tracts.

TABLE 2.—WETLAND TYPES, BY ACREAGE, WHICH WERE LOST FROM THE RUSSO 13.5-ACRE TRACT, AND ENHANCEMENT

ACTIVITIES WHICH WOULD PROVIDE ADEQUATE COMPENSATION FOR THOSE LOSSES

Wetland type lost (acres) Enhancement activity Habitat improvement which will result from the

enhancement activity

Mixed emergents/open

water (1.14 ac).

Excavation of two 1-acre ponds or meandering channels in Phragmites fields; planting/seeding with emergent species at fringe.Diverse ponds or watercourses attractive to waterfowl

and muskrats, able to provide winter shelter and improved feeding.

Wet meadow (3.68 ac) ........ Remove Phragmites on 4 ac and excavate to maintain

a permanently saturated hydrologic regime; seed with

mixture of wet meadow species. In tidal areas, an alternative would be establishment of high salt marsh.

Since there is less plant diversity in a high salt

marsh, 6 acres of enhancement would be recommended.

Creation of habitat valuable to raptors and species such

as woodcock and pheasant; possible provision of

nesting habitat for certain species of waterfowl. Wet

meadow would directly replace lost habitat type.

Phragmites, unbroken field

(5.41 ac).

Either excavation of 5.41 ac from upland to create regularly saturated habitat and planting or seeding with

suitable wetland emergents, or excavation and eradication of approximately 5.5 acres of tidal, unbroken

Phragmites to average mean water and planting or

seeding with Spartina alterniflora and shrubs.

Creation of saturated system of emergents which would

provide the same functions as Phragmites. Enhancement to a S. alterniflora marsh increases value seasonally to wildlife, but more plant diversity is needed

since enhancement is occurring on a functioning wetland. Shrub layer provides this.

Three types of wetland habitat are

believed to have existed on the 13.5-acre

site prior to Russo’s fill activities; viz.,

mixed emergent, wet meadow, and

Phragmites. Since 3.27 acres, which was

identified by aerial photography as ‘‘old

field’’ has been determined by the Corps

to have been a non-wetland area, a

determination with which EPA concurs,

no compensation is required for fill

activity which occurred on this portion

of the site.4

The excavation of two, one-acre

ponds or approximately two acres of

meandering channel will provide two

acres of valuable feeding/resting habitat

for waterfowl, particularly black duck.

The mixed emergent areas originally

present on the 13.5-acre site totalled

1.14 acres. This acreage, however, was

divided among three areas, and was less

likely to be attractive to waterfowl than

a single pond or watercourse of the

same size. Since an existing wetland,

which has functional values of its own,

will be excavated to create the ponds or

channel, it will lose some functional

value as a result of the excavation

activity. The creation of an additional

acre of open water is likely to offset any

losses associated with the enhancement

activity itself. The cost of such an

enhancement is likely to be low, since

only the fringe of the ponds would be

seeded, and would probably not exceed

$5,000/acre, based on EPA Region II’s

best estimates of cost.

The enhancement of approximately

four acres of Phragmites monoculture to

provide a frequently saturated wet

meadow will restore the same acreage of

wet meadow that was lost from the site.

As an alternative, should the proposed

mitigation site be tidal, a tidal high salt

marsh, dominated by Spartina patens

and Distichlis spicata, can be

established. High salt marsh is also a

remnant habitat in the District, and
Federal Register / Vol. 60, No. 59 / Tuesday, March 28, 1995 / Notices 15919

would provide many of the same values

to wildlife as wet meadow (i.e.,

attractive to raptors, small mammals,

etc.) but is not usually as species-rich in

plants, including those with food value

to wildlife, as a freshwater wet meadow.

Consequently, this type of

compensation should be established at a

1.5:1 acreage replacement, since it

represents out-of-kind mitigation, and

would not have as many functions as

the habitat for which it is providing

compensation.

The remaining 5.4 acres of the 13.5-

acre tract was dominated by Phragmites.

The creation of a 5.4 acre emergent

marsh from upland would offset this

loss. If enhancement is the technique

used (as is likely), then the replacement

vegetation for Phragmites must be twice

as valuable to wildlife to provide valuefor-value compensation for wildlife.

Based on EPA studies, Spartina marsh

habitat is more attractive to wading

birds and waterfowl, and is of equal

value to certain passerine species.

Phragmites-dominated habitat can be

doubled in its value to most wildlife

species if it is enhanced to provide an

equal acreage of Spartina alterniflora/

scrub-shrub marsh, and it is

interspersed with the other proposed

habitat types. Therefore, conversion of

approximately 5.5 acres of uniform

Phragmites to S. alterniflora/scrubshrub salt marsh will compensate for

the wildlife value of the 5.41 acres of

Phragmites marsh lost from the Russo

13.5-acre tract, and will result in no net

loss of wildlife value for the acreage

lost.

Estimates for the eradication of

Phragmites, excavation and seeding of

other species (such as Spartina or

hydrophytic herbaceous forbs, such as

those found in wet meadow habitats)

varies, but are expected to average about

$20,000/acre, based on EPA Region II’s

best available information.

Approximately nine acres of such

enhancement would be required to

provide the suggested wet meadow and

S. alterniflora/scrub-shrub marsh. (The

land acquisition for mitigation activities

will already have occurred when these

activities are expected to be

implemented.) Adequate funds would

therefore be available to provide the

requisite enhancement to ensure a

value-for-value replacement.

The balance of the funds would go

toward providing replacement of

wetland wildlife value lost as a result of

filling the 44-acre tract. An example

mitigation strategy that would likely be

feasible to implement with the resources

made available by Russo, and which

would provide compensation for

wildlife values lost from the 44-acre

tract is listed in Table 3.

TABLE 3.—WETLAND TYPES, BY ACREAGE, WHICH WERE LOST FROM THE 44-ACRE TRACT, AND ENHANCEMENT

ACTIVITIES WHICH WOULD PROVIDE ADEQUATE COMPENSATION FOR THOSE LOSSES

Wetland type lost (acres) Enhancement activity Habitat improvement which will result from the

enhancement activity

Mixed emergents/open

water (2.92 ac).

Excavation of 6 acres of open water habitat (ponds

and/or channels) in Phragmites fields; planting/seeding with other emergent species at fringe..

Diverse ponds or watercourses attractive to waterfowl

and muskrats, able to provide preferred winter shelter

and improved feeding.

Wooded (0.37 ac) ...............

Phragmites areas (15.69 ac)

Planting of approximately 3 acres of shrub/tree layer on

16.5 ac Ridgefield tract

Provides nesting opportunities for waterfowl/passerine

species, as well as buffer from developed area. Fruitbearing shrubs greatly increases wildlife food value.

Wet meadow (21.73 ac) ...... Removal of Phragmites on 22 ac and excavation to

achieve seasonally saturated hydrologic regime with

some ponded areas. Seeding with a mixture of wet

meadow grasses and forbs. Alternatively, establishment of 33 ac of high salt marsh

Creation of habitat valuable to raptors and species such

as woodcock and pheasant; possible provision of

nesting habitat for certain species of waterfowl. Direct

replacement of habitat type lost.

The rationale for the types of

enhancements suggested for the 44-acre

tract is essentially the same as for the

proposal for the 13.5-acre tract. The one

component which is different is the

proposal to mitigate for the loss of

approximately 15.7 acres of

homogeneous Phragmites fields and for

the loss of 0.37 acres of wooded habitat

by providing approximately three acres

of a shrub/woody vegetation layer on

the 16.5 acre Ridgefield tract. The

Ridgefield tract is essentially a

monoculture of Phragmites; however, it

contains abundant marsh/open water

tidally influenced complexes. As

previously mentioned, this type of

Phragmites/open water mosaic provides

feeding and resting areas to waterfowl

on a year round basis, but is especially

valuable to overwintering waterfowl

because it provides them not only with

feeding and resting areas but also with

shelter from severe weather, thus

lowering their expenditure of calories.

Consequently, its existing wildlife value

is good in context of the Meadowlands

as a landscape. However, it does not

provide any nesting opportunities for

birds requiring trees and shrubs. Neither

does it contain any substantial source of

fruits or seeds which are used as

preferred foods by wildlife such as

pheasant, woodcock, etc., which were

believed to have been on the 44-acre

tract prior to filling. Both the nesting

and food values to wildlife are largely

lacking in the immediate vicinity of the

Ridgefield tract. By providing the

woody vegetation layer, at an acreage

ten times that which was lost on the 44-

acre tract, this value is not only replaced

for the woody vegetation that was lost,

but also enhances the entire 16.5-acres

and provides wildlife value that has

never been on that parcel. When

considered in conjunction with the

valuable open water mosaic present on

that site, we believe that the

enhancement will increase the value of

the Ridgefield site sufficiently to

compensate for the loss of the 15.7 acre

homogeneous Phragmites field and .37

acres of wooded wetlands.

Most of the wetlands on the 13.5-acre

tract have already been filled and

converted to upland; the entire tract has

been disturbed from its original

condition. If the prohibition on fill is

amended to allow the proposed

settlement to proceed, it is likely that

Russo would be permitted to complete

his activity on site. The calculation of

mitigation includes considerations

based on the complete loss of the tract’s

wetlands value.

Proposed Action and Consistency With

the New Jersey Coastal Zone

Management Plan (CZMP)

In its May 17, 1991 opinion, the court

in Russo Development Corp v. Reilly,

No. 87–3916, held that EPA was

arbitrary and capricious for failing to

articulate its reasons for deviating from

the New Jersey Coastal Zone

Management Plan (CZMP) in the

Agency’s 404(c) determination. The
15920 Federal Register / Vol. 60, No. 59 / Tuesday, March 28, 1995 / Notices

5Costs for enhancement vary widely, but private

contractors generally range from $10,000–$20,000/

acre in this area to implement mitigation, based on

an informal EPA Region II survey of costs. In this

case, monitoring will be overseen by agency

personnel, which reduces the cost. Because the

mitigation activities will occur over a large number

of acres, there is an economy of scale involved in

design and construction, since mobilization/

demobilization and design costs will be distributed

over many participants. Finally, since there would

be a large pool of wetlands acreage available for

enhancement, wetlands to be enhanced using

Russo’s funds can be strategically chosen so that the

value increase of Russo’s portion of the mitigation

may be maximized.

Agency’s decision was remanded to

EPA in part on this ground.

Section 307(c)(3)(A) of the Coastal

Zone Management Act (CZMA)

prohibits a Federal permit from being

issued for an activity affecting any land

or water use or natural resource of the

coastal zone of that state until the

applicant furnishes a certification that

the activity is consistent with an

approved CZMP, and the State concurs

in the certification or waives review.

This portion of the CZMA is

implemented in the Corps regulations

by 33 CFR 325.2(b)(2). Because the

Corps’ regulations adequately address

the CZM consistency requirement, EPA

did not duplicate § 325.2(b)(2) in the

404(b)(1) Guidelines.

The Hackensack Meadowlands

District Master Plan is the Coastal Zone

Management Plan for the Meadowlands

District, and the current plan zones the

13.5 acre parcel for development.

Because EPA’s 404(c) determination, if

it is finalized as proposed today, would

no longer preclude the Corps from

authorizing fill activity on the 13.5 acre

parcel, such an action would appear to

be consistent with the Master Plan. Of

course, under section 307(c)(3)(A) of the

CZMA and 33 CFR 325.2(b)(2), it is the

State that ultimately would have the

authority to determine consistency of a

new permit proposal with the

applicable plan.

Conclusions

The Final Determination by the AA

for Water contemplated a

reconsideration of the prohibition upon

a showing that adequate mitigation

could be provided to offset unacceptable

impacts to wildlife. Russo has proposed

the following mitigation to compensate

for impacts of the fill activity: (1) Deed

over an approximately 16 acre parcel of

wetlands in Ridgefield, N.J. for

preservation, and (2) provide $700,000

for the purpose of enhancing wetlands

at this site and on sites to be contained

in the Hackensack Meadowlands

District mitigation bank. Since there

will be Federal oversight of the type of

enhancements performed, as well as the

design, construction, and

implementation of the mitigation

activities, and since the funding

provided for mitigation would be

applied to enhancement alone 5, the

mitigation activities would be applied to

sufficient acreage, and would be of

appropriate kind and quality, to provide

adequate compensation for losses of

wetlands values which resulted/are

resulting from the unauthorized fill.

Unlike the proposal in the original

permit, all of the compensation

proposed will involve an increase in

value and will be located within the

lower Hackensack River basin (the

location of the impact). Furthermore,

the proposed combinations of mitigation

activities will ensure that a mosaic of

different habitats, which was an

important factor contributing to the

wildlife value of the Russo tracts, will

be restored elsewhere within the

relevant area of the impact. Finally, the

above proposals will provide adequate

acreage of the different wetland types to

compensate for the extent of wildlife

values lost on the Russo tracts.

Therefore, under the terms of the

settlement, there would be no

significant loss of wetland values which

would not be offset by appropriate and

adequate mitigation. There would, we

believe, no longer be unacceptable

adverse effects to wildlife from this

activity. The prohibition on specifying

the Russo tracts as disposal sites for fill

would no longer be necessary to prevent

unacceptable adverse effects to wildlife

and the aquatic ecosystem. EPA

therefore proposes that, conditional

upon a binding agreement by Russo to

provide the funds and land preservation

discussed above, the Section 404(c)

prohibition on specification of the 13.5-

acre site for fill material be removed,

and a restriction be imposed that would

allow specification of these areas as

disposal sites provided Russo

implements the mitigation plan

discussed above.

Dated: March 21, 1995.

Robert Perciasepe,

Assistant Administrator for Water.

[FR Doc. 95–7590 Filed 3–27–95; 8:45 am]

BILLING CODE 6560–50–P

[FRL–5179–8]

Public Water System Supervision

Program Revision for the State of

South Dakota

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Notice.

SUMMARY: Public notice is hereby given

in accordance with the provisions of

section 1413 of the Safe Drinking Water

Act as amended, 42 U.S.C. 300g–2, and

40 CFR part 142, Subpart B-Primary

Enforcement Responsibility, that the

State of South Dakota has revised its

Public Water System Supervision

(PWSS) Primacy Program. South

Dakota’s PWSS program, administered

by the Office of Drinking Water of the

Department of Environment and Natural

Resources, has adopted regulations for

total coliforms, surface water treatment,

Phase II (7 inorganic and 26 organic

chemicals), Phase IIb (1 inorganic and 4

organic chemicals), and Phase V (5

inorganic and 18 organic chemicals) that

correspond to the National Primary

Drinking Water Regulations (NPDWR) in

40 CFR part 141 for total coliforms

(Federal Register Vol. 54, No. 124, June

29, 1989, Pg. 27544–27568), surface

water treatment (Federal Register Vol.

54, No. 124, June 29, 1989, Pg. 27486–

27541), Phase II (Federal Register Vol.

56, No. 20, January 30, 1991, Pg. 3526–

3597), Phase IIb (Federal Register Vol.

56, No. 126, July 1, 1991, Pg. 30266–

30281), and Phase V (Federal Register

Vol. 57, No. 138, July 17, 1992, Pg.

31776–31849). The Environmental

Protection Agency (EPA) has completed

its review of South Dakota’s primacy

revisions and has determined that they

are no less stringent than the NPDWRs.

EPA therefore approves South Dakota’s

primacy revisions for Total Coliforms,

Surface Water Treatment, Phase II, IIb,

and V Rules. This determination shall

become effective April 27, 1995.

Any interested parties are invited to

submit written comments on this

determination, and may request a public

hearing on or before April 27, 1995. If

a public hearing is requested and

granted, this determination shall not

become effective until such time

following the hearing that the Regional

Administrator issues an order affirming

or rescinding this action.

Requests for a public hearing should

be addressed to: William P. Yellowtail,

Regional Administrator, c/o David

Schmidt (8WM–DW), U.S.

Environmental Protection Agency,

Region VIII, 999 18th Street, Suite 500,

Denver, CO 80202–2466.

Frivolous or insubstantial requests for

a hearing may be denied by the Regional

Administrator. However, if a substantial

request is made within thirty (30) days

after this notice, a public hearing will be

held.

Any request for a public hearing shall

include the following: (1) The name,

address, and telephone number of the

individual, organization, or other entity

requesting a hearing; (2) a brief