[Federal Register Volume 73, Number 183 (Friday, September 19, 2008)]
[Notices]
[Pages 54398-54400]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22002]



[[Page 54398]]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-R04-OW-2008-0179; FRL-8717-6]


Final Determination of the Assistant Administrator for Water 
Pursuant to Section 404(c) of the Clean Water Act Concerning the 
Proposed Yazoo Backwater Area Pumps Project in Issaquena County, MS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: This is a notice of EPA's Final Determination pursuant to 
section 404(c) of the Clean Water Act to prohibit the specification of 
subject wetlands and other waters of the United States in Issaquena 
County, MS, as a disposal site for the discharge of dredged or fill 
material for the purpose of construction of the proposed Yazoo 
Backwater Area Pumps Project, i.e., Plan 5 in the U.S. Army Corps of 
Engineers' (the Corps) Final Supplemental Environmental Impact 
Statement (FSEIS) for the Yazoo Backwater Area Project, as well as 
FSEIS Plans 3, 4, 6, and 7, and Modified Plan 6 (proposed by the Corps 
after publication of the FSEIS). EPA's determination is based upon a 
finding that the discharge of dredged or fill material associated with 
the construction and operation of these projects would result in 
unacceptable adverse effects on fishery areas and wildlife.

DATES: Effective Date: The effective date of the Final Determination is 
August 31, 2008.

ADDRESSES: U.S. Environmental Protection Agency, Office of Water, 
Wetlands Division, Mail code 4502T, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460. EPA has established a docket for this action 
under Docket ID No. EPA-R04-OW-2008-0179. All documents in the docket 
are listed on the http://www.regulations.gov Web site. Although listed 
in the index, some information is not publicly available, e.g., CBI or 
other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, is not placed on the 
Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available either electronically 
through http://www.regulations.gov or in hard copy at the Water Docket, 
EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, 
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744, and the telephone number for the 
Water Docket is (202) 566-2426.

FOR FURTHER INFORMATION CONTACT: Ms. Tanya A. Code at (202) 566-1063 or 
by e-mail at <a href="/cdn-cgi/l/email-protection#d5b6bab1b0fba1b4bbacb495b0a5b4fbb2baa3"><span class="__cf_email__" data-cfemail="b0d3dfd4d59ec4d1dec9d1f0d5c0d19ed7dfc6">[email protected]</span></a> or Mr. Palmer F. Hough at (202) 566-
1374 or by e-mail at <a href="/cdn-cgi/l/email-protection#224a4d57454a0c52434e4f4750624752430c454d54"><span class="__cf_email__" data-cfemail="afc7c0dac8c781dfcec3c2caddefcadfce81c8c0d9">[email protected]</span></a>. Additional information and 
copies of EPA's Final Determination are available at the following Web 
site: http://www.epa.gov/404c/.

SUPPLEMENTARY INFORMATION: Section 404(c) of the Clean Water Act (CWA) 
(33 U.S.C. 1251 et seq.) authorizes EPA to prohibit, restrict, or deny 
the specification of any defined area in waters of the United States 
(including wetlands) as a disposal site for the discharge of dredged or 
fill material whenever it determines, after notice and opportunity for 
public hearing, that such discharge into waters of the United States 
will have an unacceptable adverse effect on municipal water supplies, 
shellfish beds and fishery areas (including spawning and breeding 
areas), wildlife, or recreational areas.
    EPA's regulations for implementing section 404(c) are set forth in 
40 CFR part 231. Four major steps in the process are: (1) The Regional 
Administrator's notice to the U.S. Army Corps of Engineers (the Corps), 
the property owner, and the applicant (and/or project proponent) of the 
intention to initiate the section 404(c) process; (2) the Regional 
Administrator's publication of a Proposed Determination to withdraw, 
deny, restrict, or prohibit the use of the site, soliciting public 
comment and offering an opportunity for a public hearing; (3) the 
Regional Administrator's recommendation to the Assistant Administrator 
for Water at EPA Headquarters to withdraw, deny, restrict, or prohibit 
the use of the site (Recommended Determination); and, (4) the Assistant 
Administrator for Water's Final Determination to affirm, modify, or 
rescind the Regional recommendation.
    Pursuant to section 404(c), EPA initiated a CWA section 404(c) 
review of the proposed Yazoo Backwater Area Pumps Project on February 
1, 2008. The Yazoo Backwater Area Pumps Project is a Corps Civil Works 
project designed to address flooding concerns in a 630,000 acre area 
situated between the Mississippi and Yazoo Rivers in west-central 
Mississippi (Yazoo Backwater Area). The project is represented as Plan 
5 in the Corps' FSEIS (published in November 2007). The primary 
component of this project is a 14,000 cubic feet per second (cfs) 
pumping station that would pump surface water out of the Yazoo 
Backwater Area during high water events on the Mississippi River. The 
project also includes 10,662 acres of reforestation of agricultural 
land to compensate for the adverse environmental impacts associated 
with the project, and up to 40,571 acres of reforestation of 
agricultural land to provide potential environmental benefits.
    According to the Corps, the Yazoo Backwater Area contains between 
150,000 to 229,000 acres of wetlands, as well as an extensive network 
of streams, creeks, and other aquatic resources. Extensive information 
collected on the Yazoo Backwater Area demonstrates that it includes 
some of the richest wetland and aquatic resources in the Nation. These 
include a highly productive floodplain fishery, substantial tracts of 
highly productive bottomland hardwood forests that once dominated the 
Lower Mississippi River Alluvial Valley (LMRAV), and important 
migratory bird foraging grounds. These wetlands provide important 
habitat for an extensive variety of wetland dependent animal and plant 
species, including the federally protected Louisiana black bear and 
pondberry plant. In addition to serving as critical fish and wildlife 
habitat, project area wetlands also provide a suite of other important 
ecological functions. These wetlands protect and improve water quality 
by removing and retaining pollutants, temporarily store surface water, 
maintain stream flows, and support aquatic food webs by processing and 
exporting significant amounts of organic carbon. As stated in the 
FSEIS, ``The lands in the lower Mississippi Delta are noted for high 
value fish and wildlife resources. The area serves as an integral part 
of the economic and social life of local residents and sportsmen from 
around the Nation'' (FSEIS, Appendix 1--Mitigation, page 1-29).
    The construction and operation of the proposed pumps would 
dramatically alter the timing, and reduce the spatial extent, depth, 
frequency, and duration of time that wetlands within the project area 
are inundated. After extensive evaluation of the record for this 
project, EPA has determined that these large-scale hydrologic 
alterations would significantly degrade the critical ecological 
functions provided by approximately 67,000 acres of wetlands in the 
Yazoo Backwater Area, including those functions that support wildlife 
and fisheries resources.
    During the initial consultation period with the Corps and the 
Mississippi

[[Page 54399]]

Board of Levee Commissioners (the project sponsor), the Corps offered 
two alternatives to the proposed project to reduce wetland impacts. One 
of these alternatives is Plan 6 from the FSEIS, and the other is a 
modified version of Plan 6. Both of these alternatives retain the 
14,000 cfs pump station, but include modifications to the pump-on 
elevation and the amount of compensatory mitigation and reforestation 
as compared to Plan 5. After discussions with the Corps and following 
careful consideration of the two alternatives, EPA is concerned that 
neither proposal would reduce impacts to an acceptable level.
    In March 2008, EPA Region IV published a proposal (i.e., Proposed 
Determination) to prohibit or restrict the use of certain waters of the 
United States as disposal sites for the discharge of dredged or fill 
material in connection with the construction of the proposed Yazoo 
Backwater Area Pumps Project (73 FR 14806, March 19, 2008). EPA Region 
IV solicited public comments on the Proposed Determination until May 5, 
2008. EPA received approximately 47,600 written comment letters, 
including approximately 1,500 individual comment letters and 46,100 
mass mailers. Nearly all of the comment letters (99.9 percent) urged 
EPA to prohibit discharges to waters of the United States associated 
with the proposed pumps project. A public hearing was held in 
Vicksburg, Mississippi, on April 17, 2008, in which approximately 500 
people participated. A total of 67 people provided oral statements, 
including one representative from the Corps' Vicksburg District and 
four individuals representing the project sponsor. Of the remaining 62 
people who provided oral statements, 32 people spoke in opposition to 
the proposed pumps project, 29 spoke in favor of the pumps project and 
one person did not specify a position. In total, approximately 463 
residents of the state of Mississippi submitted written comments to EPA 
or spoke at the public hearing. Of these, 417 expressed support for 
EPA's proposal and 45 favored construction of the pumps. Within the 
Yazoo Backwater Area, a total of 31 residents expressed an opinion on 
the project either at the public hearing, in written comments, or both. 
Of these 31, four expressed support for EPA's position, 26 expressed 
support for construction of the pumps, and one did not express an 
opinion.
    On July 2, 2008, EPA Region IV submitted to EPA Headquarters its 
Recommended Determination to prohibit the specification of certain 
wetlands and other waters of the United States within Humphreys, 
Issaquena, Sharkey, Warren, Washington, or Yazoo County, in the state 
of Mississippi as a disposal site for the discharge of dredged or fill 
material for the purpose of construction of the proposed Yazoo 
Backwater Area Project, or any similar pump project in the Yazoo 
Backwater Area that would result in unacceptable adverse effects on 
fishery areas and wildlife.
    EPA Region IV based its recommendation upon a conclusion that the 
proposed discharge of fill material into 43.6 acres of wetlands and 
other waters of the United States in connection with the construction 
of the pumping station and the subsequent secondary impacts, would 
result in unacceptable adverse effects on at least 67,000 acres of 
wetlands and other waters of the United States and their associated 
wildlife and fisheries resources. Additionally, EPA Region IV expressed 
concern that the proposed mitigation would not fully compensate for the 
potential impacts of the project, as identified in the FSEIS, and that 
the suggested environmental benefits associated with the project's 
reforestation component have not been substantiated. EPA Region IV also 
stated that the Corps did not evaluate the proposed project's adverse 
impacts on up to 24,000 acres of wetlands outside the FSEIS's wetland 
assessment area. EPA Region IV also expressed its belief that there are 
likely to be less environmentally damaging practicable alternatives 
available to achieve the improved flood protection goals of the 
proposed Yazoo Backwater Area Project.
    The U.S. Fish and Wildlife Service (FWS), in its comments on the 
Proposed and Recommended Determinations, concurred with EPA Region IV's 
conclusion that the proposed project would result in extensive and 
unacceptable adverse effects on wildlife and fishery areas. FWS also 
highlighted its concerns that the proposed project would significantly 
degrade the wildlife habitat provided by its four National Wildlife 
Refuges located within the Yazoo Backwater Area--reducing the 
capability of these refuges to achieve the purpose and intent for which 
they were Congressionally established.
    EPA prepared the Final Determination based on an evaluation of EPA 
Region IV's Recommended Determination, and review and consideration of 
the administrative record, including information in the Corps' 2007 
FSEIS, public comments received in writing and at the public hearing, 
and submissions by other federal and state agencies. In addition, the 
Final Determination reflects the careful review and full consideration 
of written information that was subsequently submitted and made part of 
the record, as well as information conveyed to EPA by the Department of 
the Army and the project sponsor during the EPA Headquarters section 
404(c) consultation process.
    EPA's Final Determination concludes that the discharge of dredged 
or fill material in connection with the construction of the proposed 
Yazoo Backwater Area Pumps Project (i.e., Plan 5 from the FSEIS), as 
well as the two alternative proposals offered by the Corps in February 
2008 (i.e., Plan 6 from the FSEIS and Modified Plan 6) and subsequent 
operation of the 14,000 cfs pumping station would result in 
unacceptable adverse effects on fishery areas and wildlife. The 
administrative record developed in this case fully supports the 
conclusion that, as a result of alterations to the spatial extent, 
depth, frequency, and duration of inundation of wetlands within the 
project area, the proposed projects would significantly degrade the 
critical ecological functions provided by approximately 28,400 to 
67,000 acres of wetlands (i.e., the range of wetland impacts as a 
result of Plan 5, Plan 6, and Modified Plan 6) in the Yazoo Backwater 
Area, including those functions that support wildlife and fisheries 
resources. Although not proposed to go forward, FSEIS Plans 3, 4, and 
7, which also include a 14,000 cfs pumping station are expected to 
result in wetland impacts between approximately 28,400 and 118,400 
acres (see FSEIS Main Report, Table 17, page 1-20). EPA has determined 
that each of these alternatives would also result in unacceptable 
adverse effects on fishery areas and wildlife. EPA does not believe 
that these adverse impacts can be adequately compensated for by the 
proposed mitigation, and are inconsistent with the requirements of the 
CWA. Further, these impacts should be viewed in the context of the 
significant cumulative losses across the Lower Mississippi River 
Alluvial Valley (LMRAV), which has already lost over 80 percent of its 
bottomland forested wetlands, and specifically in the Mississippi Delta 
where the proposed project would significantly degrade important 
bottomland forested wetlands.
    Based on these findings, the Final Determination prohibits, 
pursuant to section 404(c) of the CWA, the specification of the subject 
wetlands and other waters of the United States as described in the 
FSEIS as a disposal site for the discharge of dredged or fill material 
for the purpose of construction

[[Page 54400]]

of FSEIS Plans 3 through 7, and Modified Plan 6. The adverse effects 
associated with the prohibited projects are the result of a combination 
of operational factors including the capacity of the pumping station 
and its associated pump-on elevations. While the Final Determination 
prohibits the construction of FSEIS Plans 3 through 7, and Modified 
Plan 6, the data supporting the Final Determination indicates that 
derivatives of the prohibited projects that involve only small 
modifications to the operational features or location of these 
proposals would also likely result in unacceptable adverse effects and 
would generate a similar level of concern and review by EPA.
    EPA continues to support the goal of providing improved flood 
protection for the residents of the Mississippi Delta; however, it 
believes that this vital objective can be accomplished consistent with 
ensuring effective protection for the area's valuable natural 
resources. EPA is committed to participating in discussions with other 
federal and state agencies, and the public, concerning the best way to 
provide flood protection while protecting wetlands and other natural 
resources.

    Dated: September 11, 2008.
Benjamin H. Grumbles,
Assistant Administrator for Water.
[FR Doc. E8-22002 Filed 9-18-08; 8:45 am]
BILLING CODE 6560-50-P


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