Clean Water Act: Proposed Section 404(c) Exemption, 60464-60465 [2014-23900]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 79, Number 194 (Tuesday, October 7, 2014)]
[Notices]
[Pages 60464-60465]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-23900]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-R06-OW-2014-05694; FRL-9917-50-Region-6]


Clean Water Act: Proposed Section 404(c) Exemption

AGENCY: Environmental Protection Agency.

ACTION: Notice and request for comments.

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SUMMARY: The Environmental Protection Agency (EPA) proposes to extend 
coverage under an existing Clean Water Act Section (CWA) 404(c) 
exception for the continued operation and maintenance of a portion of 
an electrical transmission line and a portion of a distribution line at 
the Bayou aux Carpes site in Jefferson Parish, Louisiana. The extension 
will authorize minimal discharges (approximately 1.35 cubic yards) to 
wetlands of dredged or fill material associated with ongoing activities 
by Entergy Louisiana, L.L.C. (Entergy) in order to provide electrical 
service to residential, commercial, military, industrial, and other 
facilities in nearby Plaquemines Parish.

DATES: Comments on this proposed action must be received on or before 
October 22, 2014.

ADDRESSES: Written comments may be addressed to Ms. Barbara Keeler 
(6WQ-EC), U.S. EPA Region 6, 1445 Ross Avenue, Dallas, TX 75202-2733. 
Comments may also be submitted by email to Ms. Keeler at 
keeler.barbara@epa.gov. All comments should directly address whether 
the Southern Natural Gas Pipeline exception to the 1985 Bayou aux 
Carpes CWA Section 404(c) EPA Final Determination should be extended to 
cover the work requested by Entergy.

FOR FURTHER INFORMATION CONTACT: For further information, contact Ms. 
Barbara Keeler by phone at (214) 665-6698 or by email at 
keeler.barbara@epa.gov.

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 
Historic Park and Preserve and the site remains subject to the CWA 
Section 404(c) restrictions.
    Entergy petitioned EPA for an exception to the October 16, 1985, 
EPA Final Determination for the Bayou aux Carpes site in Jefferson 
Parish, Louisiana, issued under Section 404(c) of the CWA. An exception 
was provided in the 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 amended coverage were 
allowed based on determinations that the proposed activities associated 
with existing linear service utilities would be unlikely to result in 
unacceptable adverse effects to the Bayou aux Carpes CWA Section 404(c) 
site. The currently proposed coverage under the same exception is for a 
similar purpose and is projected to entail minor temporary impacts to 
the subject wetlands.
    The October 16, 1985, Bayou aux Carpes Clean Water Act Section 
404(c) EPA Final Determination and other background information are 
available online at: https://www.regulations.gov (Docket No. EPA-R06-OW-
2014-0569).

Background

    Section 404(c) of the CWA authorizes 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 EPA works with the 
Corps and applicants to resolve environmental concerns. Since the 
passage of the CWA in 1972, EPA has finalized 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 (50 FR 47267) a CWA Section 
404(c) Final Determination prohibiting, with three exceptions, future 
discharges of dredged or fill material to wetlands in the Bayou aux 
Carpes site. 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, under specified 
conditions. The third exception provides for possible future EPA 
approved habitat enhancement activities. 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 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 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 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

[[Page 60465]]

resilient and reliable storm damage and risk reduction system, as 
directed by Congress.
    Following a public meeting, opportunity for public comments, 
extensive interagency coordination and thorough ecological analyses, 
EPA approved the modification request on May 28, 2009, publishing the 
decision at 74 FR 143 (July 28, 2009). EPA determined that construction 
of the modified ``T-wall'' style floodwall within a 100 foot by 4,200 
foot corridor (<= 9.6 acres) on a previously impacted area of the Bayou 
aux Carpes site (along with commitments from the Corps that would 
minimize construction impacts and provide for mitigation, wetland 
enhancement and long-term monitoring) was an acceptable approach. EPA 
found that compelling circumstances justified a modification, that 
there were no less environmentally damaging practicable alternatives 
that would adequately address those circumstances and that all feasible 
means of minimizing adverse wetland effects to the Bayou aux Carpes 
site would be implemented. This decision to modify a CWA Section 404(c) 
Final Determination was unique in the history of such determinations 
and EPA granted the modification in the belief that it would achieve a 
balance between the national interest in reducing overwhelming flood 
risks to the people and critical infrastructure of south Louisiana 
while minimizing any damage to the Bayou aux Carpes Section 404(c) area 
to the maximum degree possible in order to avoid unacceptable adverse 
effects.
    In addition to that modification of the 1985 EPA Bayou aux Carpes 
CWA Section 404(c) Final Determination, 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 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, EPA granted the 
requests, publishing the decision at 57 FR 3757 (January 31, 1992). EPA 
concluded that relocating the pipeline to non-wetlands was infeasible 
from the perspectives of engineering and public safety, 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 EPA. In each of those cases, however, 
the petitioners did not complete the analyses required for an agency 
decision.

Proposed Activities

    On August 18, 2014, Entergy petitioned 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 and 
portions of a distribution line located partially within the Bayou aux 
Carpes Section 404(c) area.
    The Barataria to Alliance Transmission line was constructed in the 
1960's by Entergy's predecessor, Louisiana Power & Light. Of the 74,012 
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.
    Entergy has requested permission to conduct preventative 
maintenance and inspections as required by Federal Energy Regulatory 
Commission regulations, North American Electric Reliability Corporation 
regulations, and Entergy's guidelines and procedures. Numerous 
techniques for minimizing impacts have been proposed and alternatives 
have been evaluated. The foreseeable activities 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. Entergy has 
requested that EPA extend authorization for this work under the 1985 
EPA CWA Section 404(c) Bayou aux Carpes Final Determination exception 
that covers the routine operation and maintenance of a similar linear 
utility, namely the Southern Natural Gas Pipeline.
    EPA proposes to extend coverage, as specified in the request from 
Entergy, under this exception because the work would have only minimal 
and temporary effects on 0.003 acres of wetlands and would not be 
considered to be unacceptable. Further, the activities to be conducted 
are essentially the same as that envisioned under the Southern Natural 
Gas Pipeline exception, which was granted in the 1985 EPA Bayou aux 
Carpes CWA Section 404(c) Final Determination.

    Dated: September 23, 2014.
William K. Honker,
Director, Water Quality Protection Division, EPA Region 6.
[FR Doc. 2014-23900 Filed 10-6-14; 8:45 am]
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