Clean Water Act: Section 404(c) Exception Approval, 73888-73890 [2014-29192]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 79, Number 239 (Friday, December 12, 2014)]
[Notices]
[Pages 73888-73890]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-29192]



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ENVIRONMENTAL PROTECTION AGENCY

[EPA-R06-OW-2014-0569; FRL-9920-30-Region-6]


Clean Water Act: Section 404(c) Exception Approval

AGENCY: U.S. Environmental Protection Agency.

ACTION: Notice of approval for exception to 1985 Clean Water Act (CWA) 
Section 404(c) Final Determination for the Bayou aux Carpes site.

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SUMMARY: This is a notice of the Environmental Protection Agency 
(EPA's) approval of coverage for the continued operation and 
maintenance of the portion of the Barataria to Alliance Transmission 
Line and an associated distribution line located in the Bayou aux 
Carpes CWA Section 404(c) site in Jefferson Parish, Louisiana, under an 
exception provided in the October 16, 1985, EPA Bayou aux Carpes Final 
Determination, as amended. This action covers discharges (approximately 
1.35 cubic yards) to wetlands of dredged or fill material associated 
with ongoing activities by Entergy Louisiana, L.L.C. (Entergy) to 
provide electrical service to residential, commercial, military, 
industrial, and other facilities in nearby Plaquemines Parish, 
Louisiana.

DATE: The effective date of this modification is December 2, 2014.

ADDRESS: U.S. EPA Region 6, Ecosystem Protection Division, (6WQ-EC), 
Ross Avenue, Dallas, TX 75202-2733.

FOR FURTHER INFORMATION CONTACT: Ms. Barbara Keeler by phone at (214) 
665-6698 or by email at keeler.barbara@epa.gov. Additional information 
and supporting documents are available at https://www.regulations.gov 
(Docket No. EPA-R06-OW-2014-0569).

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 includes about 3,000 acres 
of wetlands subject to federal jurisdiction under the CWA. The area is 
bounded on the north by the 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.'' In 2009, most of the site was 
incorporated into the Barataria Unit of the Jean Lafitte National 
Historical Park and Preserve and the site remains subject to the CWA 
Section 404(c) restrictions.
    Entergy petitioned EPA on August 18, 2014, for an exception to the 
October 16, 1985, EPA Final Determination for the Bayou aux Carpes 
site, issued under Section 404(c) of the CWA. An exception was provided 
in the original 1985 restriction for discharges associated with routine 
operation and maintenance of the Southern Natural Gas Pipeline Company 
pipeline. Subsequently, the exception was extended to cover minor 
discharges from emergency maintenance and relocation of a portion of 
another existing pipeline operated by Shell Pipeline Corporation. Both 
the original exception and the subsequent extended coverage were 
allowed based on determinations that the proposed activities associated 
with these existing linear service utilities would be unlikely to 
result in unacceptable adverse effects to the Bayou aux Carpes CWA 
Section 404(c) site. This action approves coverage under the same 
exception for the work requested by Entergy, which will also entail 
minor temporary impacts to the subject wetlands.
    The August 18, 2014, request by Entergy, and other background 
information are available at: https://www.regulations.gov (Docket No. 
EPA-R06-OW-2014-0569).

Background

    Section 404(c) of the CWA authorizes the EPA to prohibit, deny, 
restrict or withdraw the use of any defined 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. The U.S. Army Corps of Engineers (Corps) authorizes 
thousands of CWA Section 404 permits every year and the EPA works with 
the Corps and applicants to resolve environmental concerns. Since the 
passage of the CWA in 1972, the EPA has finalized Section 404(c) 
prohibitions or restrictions only 13 times. The use of this authority 
has typically involved major projects with unacceptable impacts on some 
of America's most ecologically valuable waters.
    On November 15, 1985, EPA published a CWA Section 404(c) Final 
Determination (50 FR 47267) restricting, with three exceptions, future 
discharges of dredged or fill material to wetlands in the Bayou aux 
Carpes site. The CWA Section 404(c) action was based upon a thorough 
record of investigations, including field surveys, remote sensing and 
other technical analyses conducted by three EPA facilities, the U.S. 
Fish and Wildlife Service, the National Park Service and the Louisiana 
State University Center for Wetland Resources.
    The 1985 EPA Bayou aux Carpes CWA Section 404(c) Final 
Determination included three exceptions. The first of the original 
three approved exceptions is for discharges associated with the 
completion of a specific design option for the Corps' Harvey Canal--
Bayou Barataria Levee Project, which was never constructed. The second 
exception is for discharges associated with routine operation and 
maintenance of the Southern Natural Gas Pipeline. The third exception 
provides for possible future EPA approved habitat enhancement 
activities. The EPA determined that these three types of activities 
would be unlikely to result in unacceptable adverse effects to the 
aquatic environment, as long as they were performed in accordance with 
any specified conditions and complied with any permit conditions that 
might be imposed by the Corps through the CWA Section 404 permit 
process. A provision was also included to allow other interests to 
petition the EPA for reconsideration if, in the future, other 
activities were to be proposed for public benefit which would result in 
only minor impacts.
    There has been only one major modification to the EPA's 1985 
decision to restrict discharges into the wetlands of the Bayou aux 
Carpes site. The modification was granted to the Corps in 2009 in 
association with the construction of flood risk reduction upgrades 
following Hurricane Katrina. On November 4, 2008, the Corps requested 
that the Bayou aux Carpes CWA Section 404(c) designation be modified to 
allow construction of a floodwall along Bayou Barataria and tying it 
into the planned West Closure Complex, as part of the post-Hurricane 
Katrina upgrades known as the Greater New Orleans Hurricane and Storm 
Damage Risk Reduction System Project. This work was but a small part of 
the larger effort to reduce flood risks to the 250,000 people living on 
the west bank of the Mississippi River and to infrastructure supporting 
the greater New Orleans area by building a more resilient and reliable 
storm damage and risk reduction system, as directed by Congress.
    In addition to that modification of the 1985 EPA Bayou aux Carpes 
CWA Section 404(c) Final Determination, the EPA has considered very few 
requests for coverage under the original exceptions. In 1992, Shell 
Pipeline Corporation requested permission to allow the discharge of 
dredged and fill material effecting approximately 0.43

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acres of wetlands in the restricted site in connection with a proposed 
below ground pipeline relocation. This work was necessary to facilitate 
the enlargement of a federal hurricane protection levee and to remedy 
the emergency reconstruction of a leaking temporary by-pass pipeline 
segment. In addition, future routine operation and maintenance 
activities associated with this pipeline were requested to be excluded 
from the CWA Section 404(c) restriction. After notifying interested 
parties of the request via Federal Register publication and 
coordinating with the Corps and other agencies, the EPA granted the 
requests, publishing the decision at 57 FR 3757 (January 31, 1992). The 
EPA concluded that relocating the pipeline to non-wetlands was 
infeasible from the perspectives of engineering and public safety, the 
work would have only minimal and temporary effects on the wetlands at 
issue and the work was essentially the same as that envisioned under 
the second exception included in the 1985 Final Determination.
    Over the years, additional requests for modifications have been the 
subject of initial analyses by the EPA. In each of those cases, 
however, the petitioners did not complete the analyses required for an 
agency decision.

Proposed Activities

    The Barataria to Alliance Transmission Line was constructed in the 
1960's by Entergy's predecessor, Louisiana Power & Light. Of the 74,012 
foot total transmission line length, an 11,543 foot section and 15 
towers are within the 120 foot right-of-way that runs through the 
southern portion of the Bayou aux Carpes CWA Section 404(c) site. The 
distribution line and 15 wooden single poles course through 
approximately 3,415 feet within a ten foot right-of-way section of the 
Bayou aux Carpes site.
    On August 18, 2014, Entergy petitioned the EPA for an exception to 
cover anticipated temporary impacts to a total of 0.003 acres 
(approximately 1.35 cubic yards) of wetlands resulting from operation 
and maintenance activities for portions of an existing transmission 
line and portions of a distribution line located within the Bayou aux 
Carpes Section 404(c) area.
    Entergy's request involves activities required for preventative 
maintenance and inspections as required by Federal Energy Regulatory 
Commission regulations, North American Electric Reliability Corporation 
regulations and Entergy's guidelines and procedures. The activities 
subject to the request are projected to temporarily effect no more than 
0.003 acres of the protected wetlands during the remaining 50-60 years 
of expected facility life.

Conclusion

    Following receipt of the request by Entergy, the EPA conducted a 
technical review of the projected wetland impacts, considered the 
applicable programmatic requirements, coordinated with other resource 
agencies, and provided an opportunity for public review. We received no 
comments from the public and one statement of federal agency support 
for the proposed EPA action to approve the Entergy request, which came 
from the Jean Lafitte National Historical Park and Preserve.
    As a result of our analyses, the EPA has approved the request by 
Entergy to perform limited operation and maintenance activities on the 
specified power lines located in the Bayou aux Carpes CWA Section 
404(c) site in Jefferson Parish, Louisiana. The EPA has approved 
coverage for the continued operation and maintenance of these lines 
under an exception provided in the October 16, 1985 EPA Bayou aux 
Carpes Final Determination as amended.
    The 1985 CWA Section 404(c) EPA decision to restrict the use of the 
Bayou aux Carpes site for the discharge of dredged or fill material 
included three exceptions. The second exception covered discharges 
associated with the routine operation and maintenance of portions of 
the Southern Natural Gas Pipeline that crossed the site. An exception 
was subsequently extended to Shell Pipeline Corporation in 1992 for 
work on another pipeline that predated the 1985 EPA restriction. We 
have now extended coverage under that same exception in the Final 
Determination as amended to Entergy for the purposes specified in the 
August 18, 2014 request. These activities are similar to those 
previously approved for the Southern Natural Gas pipeline and the Shell 
pipeline in that the electrical lines existed prior to the 1985 EPA 
decision and the maintenance work is expected to incur only minor and 
temporary wetland impacts.
    This decision reflects a unique set of circumstances and does not 
have any bearing on any other CWA Section 404(c) determinations, 
amendments, or modification requests. Each CWA Section 404(c) 
designation represents a unique situation that responds to a specific 
set of parameters unlike any other.
    This CWA Section 404(c) approval covers discharges expected to 
impact no more than a total of 0.003 acres of wetlands (approximately 
1.35 cubic yards) in the Bayou aux Carpes CWA Section 404(c) site from 
dredged or fill material associated with ongoing Entergy activities. 
The activities are restricted to those included in the August 18, 2014, 
request by Entergy to the EPA.
    The approved work includes such routine maintenance as inspecting 
towers and lines for damage, replacing tower coatings, reapplying 
cathodic protection on foundations and anchors, cutting vegetation away 
from overhead lines, limited spot treatments with approved herbicides, 
and other emergency repairs including tower replacements in the same 
location. Entergy expects that any replacement of towers would be 
accomplished without discharging dredged or fill material, with the 
exception of tower structure #31. In that instance, special procedures 
should be employed whereby the old foundations would be left in place 
and the new foundations would be situated nearby. In all cases, the 
access to the site, the types of work and repair methods, and the kinds 
of vehicles and machinery to be used shall be designed so as to avoid 
and minimize wetland impacts and shall be in accordance with the 
methods specified in the August 18, 2014, Entergy request.
    Entergy shall be the responsible entity for ensuring compliance 
with the terms of this approval. Entergy shall be responsible for 
ensuring that all employees and contractors working within the Bayou 
aux Carpes CWA Section 404(c) site understand the terms and extent of 
this approval. Any violation of the terms of this approval shall be 
reported by Entergy to the EPA by telephone immediately upon discovery, 
followed by a written report by Entergy describing the circumstances 
and ecological impacts. In this event, all related work activities 
shall cease until resolution is reached with the EPA.
    Entergy shall notify Jean Lafitte National Historical Park and 
Preserve prior to each instance during which inspections (including 
aerial inspections) or operations and maintenance work is performed 
within the Bayou aux Carpes CWA Section 404(c) site. In each instance, 
Entergy shall employ the least damaging equipment and repair methods 
possible.
    This approval does not cover any activities that would impact 
wetlands in the Bayou aux Carpes CWA Section 404(c) site associated 
with any alternatives for placing the currently out of service 
distribution line back into service or to remove the 3,415 foot-long 
distribution line and associated 15 wooden poles. Similarly, this 
approval does not cover the deactivation of the

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transmission line or the removal of the 11,534 foot-long power line and 
15 transmission structures within the Bayou aux Carpes CWA Section 
404(c) site. Such activities should be specifically coordinated in 
advance with the EPA and Jean Lafitte National Historical Park and 
Preserve.
    This approval does not provide authorization under Section 10 of 
the Rivers and Harbors Act of 1899 or Section 404 of the Clean Water 
Act for Entergy's proposed discharges. Entergy must obtain 
authorization from the Corps in order to proceed with any activities 
governed by these statutes at the Bayou aux Carpes CWA Section 404(c) 
site. Entergy shall also be responsible for obtaining all necessary 
permits and approvals from the National Park Service, Jean Lafitte 
National Historical Park and Preserve. In addition, Entergy shall be 
responsible for obtaining any other necessary permits, notices and 
approvals at all levels of government and for conducting all required 
regulatory coordination prior to implementing any of the work covered 
by this approval.
    In the event that Entergy determines that the continued operation 
and maintenance activities covered by this exception will cause or are 
likely to cause unanticipated and unacceptable adverse impacts, it 
shall notify the EPA. Similarly, if the EPA determines that the 
continued operation and maintenance activities covered by this 
exception will cause or are likely to cause unanticipated and 
unacceptable adverse impacts, the EPA may reconsider this approval.

    Dated: December 2, 2014.
Samuel Coleman,
Acting Regional Administrator.
[FR Doc. 2014-29192 Filed 12-11-14; 8:45 am]
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