
[Federal Register: March 19, 2008 (Volume 73, Number 54)]
[Notices]               
[Page 14806-14820]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19mr08-56]                         

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-R04-OW-2008-0179; FRL-8543-7]

 
Proposed Determination To Prohibit, Restrict, or Deny the 
Specification, or the Use for Specification, of an Area as a Disposal 
Site; Yazoo River Basin, Issaquena County, MS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: Section 404(c) of the Clean Water Act (CWA) authorizes the 
Environmental Protection Agency (EPA) to prohibit, restrict, or deny 
the discharge of dredged or fill material at defined sites in waters of 
the United States (including wetlands) whenever it determines, after 
notice and opportunity for public hearing, that use of such sites for 
disposal would have an unacceptable adverse impact on various 
resources, including fisheries, wildlife, municipal water supplies, and 
recreational areas. Pursuant to section 404(c), EPA Region 4 is today 
requesting public comments on its proposal to prohibit or restrict the 
use of certain waters in the Yazoo River Basin in Issaquena County, 
Mississippi as disposal sites for dredged or fill material in 
connection with the construction of the proposed Yazoo Backwater Area 
Project (the project). As the primary component of this project, the 
U.S. Army Corps of Engineers, Vicksburg District (the Corps) and the 
Board of Mississippi Levee Commissioners (project sponsor) propose to 
construct a 14,000 cubic feet per second (cfs) pumping station at 
Steele Bayou with a pump-on operation elevation of 87.0 feet, National 
Geodetic Vertical Datum (NGVD). The construction and operation of the 
proposed pumps would degrade the critical functions and values of 
approximately 67,000 acres of wetland resources in the Yazoo River 
Basin. Of this total, approximately 26,300 acres would be 
hydrologically modified to the extent that they would no longer be 
defined as wetlands and would lose CWA regulatory protection. The 
natural timing, frequency, and duration of water reaching the remaining 
approximately 40,700 acres of wetlands would be impacted by the 
proposed pumping, altering the wetlands' ecological characteristics and 
significantly reducing their functions. EPA Region 4 believes that 
these extensive hydrological modifications of wetlands in the Yazoo 
River Basin could have an unacceptable adverse effect on fisheries and 
wildlife resources.
    EPA seeks comment on this proposed 404(c) determination to prohibit 
or restrict the discharge of dredged or fill material in wetlands and 
other waters in the Yazoo River Basin in connection with the 
construction of the project or any pumping proposal in the Yazoo 
Backwater Area that would involve significant adverse impacts on waters 
of the United States. See Solicitation of Comments, at the end of the 
public notice, for further details.

DATES: Comments must be received on or before May 5, 2008.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OW-2008-0179, by one of the following methods:
1. Federal eRulemaking Portal (recommended method of comment 
submission): http://www.regulations.gov. Follow the online instructions 
for submitting comments.
2. E-mail: ow-docket@epamail.epa.gov. Include the docket number, EPA-
R04-OW-2008-0179 in the subject line of the message.
3. Mail: ``EPA-R04-OW-2008-0179, Yazoo Pumps,'' Wetlands, Coastal and 
Nonpoint Source Branch; Water Management Division; U.S. Environmental 
Protection Agency, Region 4; 61 Forsyth Street, SW; Atlanta, Georgia 
30303-8960.
4. Hand Delivery or Courier: Mr. Ronald J. Mikulak, Wetlands Regulatory 
Section; Wetlands, Coastal and Nonpoint Source Branch; Water Management 
Division; U.S. Environmental Protection Agency, Region 4; 61 Forsyth 
Street, SW; Atlanta, Georgia 30303-8960. Such deliveries are only 
accepted during the Regional Office's normal hours of operation, which 
are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding federal 
holidays.
5. Submit at Public Hearing: see PUBLIC HEARING section below. 
Instructions: Direct your comments to Docket ID No. EPA-R04-OW-2008-
0179.

EPA's policy is that all comments received will be included in the 
public docket without change and may be made available online at http:/
/www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit through http://www.regulations.gov 
or e-mail, information that you consider to be CBI or otherwise 
protected. The http://www.regulations.gov Web site is an ``anonymous 
access'' system, which

[[Page 14807]]

means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an e-mail comment 
directly to EPA without going through http://www.regulations.gov, your 
e-mail address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., 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 in http://
www.regulations.gov or in hard copy at the Wetlands Regulatory Section; 
Wetlands, Coastal and Nonpoint Source Branch; Water Management 
Division; U.S. Environmental Protection Agency, Region 4; 61 Forsyth 
Street, SW; Atlanta, Georgia 30303-8960. EPA requests that if at all 
possible, you contact the person listed in the FOR FURTHER INFORMATION 
CONTACT section to schedule your inspection. The Regional Office's 
official hours of business are Monday through Friday, 8:30 a.m. to 4:30 
p.m., excluding federal holidays.
    Public Hearing: In accordance with EPA regulations at 40 CFR 231.4, 
the Regional Administrator may decide that a public hearing on a 
proposed 404(c) determination would be in the public interest. Mr. 
Lawrence E. Starfield, Deputy Regional Administrator for EPA Region 6, 
has been appointed by the Administrator as the Regional Decision 
Officer for purposes of any EPA Regional action on the Yazoo Backwater 
Area Project pursuant to section 404(c); since Mr. Starfield has been 
designated to exercise all such authority for the Regional 
Administrator for the Yazoo Backwater Area Project, any reference to 
authority of the Regional Administrator in this notice are the 
responsibility of Mr. Starfield for the purposes of this action. In 
that capacity, Mr. Starfield has decided that a public hearing on this 
proposed 404(c) determination would be in the public interest.
    EPA will hold a public hearing on April 17, 2008, at 7 p.m. at the 
Vicksburg Convention Center and Auditorium (Exhibit Hall A), located at 
1600 Mulberry Street, Vicksburg, MS 39180, seeking comments on its 
Proposed Determination. See Solicitation of Comments, at the end of 
this public notice for further details.
    The Regional Administrator will designate the official who will 
preside at the public hearing. Any person may appear at the hearing and 
submit oral and/or written statements or data and may be represented by 
counsel or other authorized representatives. The Presiding Officer will 
establish reasonable limits on the nature and length of time for oral 
presentation. There will be no cross examination of any hearing 
participant, although the Presiding Officer may make appropriate 
inquiries of any such participant.

FOR FURTHER INFORMATION CONTACT: For information regarding this notice 
of proposed 404(c) determination contact Mr. Ronald J. Mikulak, 
Wetlands Regulatory Section; Wetlands, Coastal and Nonpoint Source 
Branch; Water Management Division; U.S. Environmental Protection 
Agency, Region 4; 61 Forsyth Street; SW., Atlanta, Georgia 30303-8960. 
The telephone number is 404-562-9233. Mr. Mikulak can also be reached 
via electronic mail at mikulak.ronald@epa.gov or Mr. William Ainslie, 
Wetlands Regulatory Section, at the same address above. The telephone 
number is (404) 562-9400. Mr. Ainslie can also be reached via 
electronic mail at ainslie.william@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, references to 
``EPA,'' ``we,'' ``us,'' or ``our,'' are intended to mean the 
Environmental Protection Agency. The supplementary information is 
arranged as follows:

I. Section 404(c) Procedure
II. Project Description and Background
III. Characteristics and Functions of the Site
IV. Basis of the Proposed Determination
    A. Section 404(c) Standards
    B. Adverse Impacts of the Proposed Project
    1. Significant Degradation and Adverse Effects
    2. Underestimation of Adverse Effects
    a. Underestimation of the Spatial Extent of Adverse Effects.
    b. Underestimation of the Degree and Nature of Adverse Effects
    3. Overestimation of Environmental Benefits
    C. Mitigation
    D. Uncertainty of the Proposed Reforestation
    E. Project Alternatives
    F. Recreation
V. Proposed Determination
VI. Other Considerations
VII. Solicitation of Comments

I. Section 404(c) Procedure

    The Clean Water Act (CWA), 33 U.S.C. 1251 et seq., prohibits the 
discharge of pollutants, including dredged or fill material, into 
waters of the United States (including wetlands) except in compliance 
with, among other provisions, section 404 of the CWA, 33 U.S.C. 1344. 
Section 404 authorizes the Secretary of the Army (Secretary), acting 
through the Chief of Engineers, to authorize the discharge of dredged 
or fill material at specified disposal sites. This authorization is 
conducted, in part, through the application of environmental guidelines 
developed by EPA, in conjunction with the Secretary, under section 
404(b) of the CWA, 33 U.S.C. 1344(b). Section 404(c) of the CWA 
authorizes EPA to prohibit the specification (including the withdrawal 
of specification) of any defined area as a disposal site and it is 
authorized to restrict or deny the use of any defined area for 
specification (including the withdrawal of specification) as a disposal 
site, whenever it determines, after notice and opportunity for public 
hearing, that the discharge of such materials into such area will have 
an unacceptable adverse effect on municipal water supplies, shellfish 
beds and fishery areas (including spawning and breeding areas), 
wildlife, or recreational areas.
    The procedures for implementation of section 404(c) are set forth 
in 40 CFR part 231. Under those procedures, if the Regional 
Administrator has reason to believe that use of a site for the 
discharge of dredged or fill material may have an unacceptable adverse 
effect on one or more of the aforementioned resources, he may initiate 
the section 404(c) process by notifying the Corps and the applicant 
(and/or project proponent) that he intends to issue a proposed 
determination. Each of those parties then has 15 days to demonstrate to 
the satisfaction of the Regional Administrator that no unacceptable 
adverse effects will occur, or that corrective action to prevent an 
unacceptable adverse effect will be taken. If no such information is 
provided to the Regional Administrator, or if the Regional 
Administrator is not satisfied that no unacceptable adverse effect will 
occur, the Regional Administrator will publish a notice in

[[Page 14808]]

the Federal Register of his proposed determination, soliciting public 
comment and offering an opportunity for a public hearing. Today's 
notice represents this step in the process.
    Following the public hearing and the close of the comment period, 
the Regional Administrator will decide whether to withdraw his proposed 
determination or prepare a recommended determination. A decision to 
withdraw may be reviewed at the discretion of the Assistant 
Administrator for Water at EPA Headquarters. If the Regional 
Administrator prepares a recommended determination, he then forwards it 
and the complete administrative record compiled in the Regional Office 
to the Assistant Administrator for Water. The Assistant Administrator 
makes the final determination affirming, modifying, or rescinding the 
recommended determination.

II. Project Description and Background

    The Yazoo River Basin's backwater area (Yazoo Backwater Area) is 
located in west-central Mississippi, just north of Vicksburg, 
Mississippi. The portion of this area relevant to the Yazoo Backwater 
Area Project is located between the east bank mainline Mississippi 
River levee and the west bank levees of the Will M. Whittington 
Auxiliary Channel, and comprises about 926,000 acres. Of particular 
focus are the approximately 630,000 acres inundated by the 100-year 
flood event which lie in parts of Humphreys, Issaquena, Sharkey, 
Warren, Washington, and Yazoo Counties in Mississippi and part of 
Madison Parish in Louisiana. The Big Sunflower River, Little Sunflower 
River, Deer Creek, and Steele Bayou flow through this area. The high 
ground along Deer Creek forms a natural divide between Steele Bayou and 
the Sunflower River Basins.
    The Yazoo Backwater Area has historically been subject to extensive 
backwater flooding from the Mississippi and Yazoo Rivers. When the 
Mississippi River reached a certain stage, water would back up into the 
Yazoo River Basin, causing flooding, while preventing the Yazoo River 
Basin from draining. With the implementation of the Mississippi River 
and Tributaries Project, which began in 1928, the Steele Bayou flood 
gate was installed to prevent Mississippi River water from flowing into 
the Yazoo Backwater Area. The gate feature, combined with other levees, 
has greatly decreased backwater flooding in the Yazoo River Basin. 
However, when the Steele Bayou flood gate is closed, precipitation in 
the Yazoo River Basin becomes trapped and backs up behind the gate 
causing flooding. The primary purpose of the Yazoo Backwater Area 
Project is to reduce the flood damages in the Yazoo Backwater Area 
caused by this internal flooding. As stated in the FSEIS, a principal 
objective of the project is to reduce flood damages ``to urban and 
rural structures, as well as agricultural properties.'' To achieve this 
objective, the Corps and the Board of Mississippi Levee Commissioners 
(project sponsor) have proposed a flood damage reduction project with 
``structural'' and ``nonstructural'' components.
    The structural component entails the construction of a 14,000 cfs 
pumping station at Steele Bayou with a pump-on operation elevation of 
87.0 feet, NGVD. When floodwaters at the Steele Bayou structure reach 
(or are anticipated to reach) an elevation of 87.0 feet, NGVD, the 
pumps will be turned on and will move water from behind the gate into 
the Mississippi River. The effects of the pumping will be to reduce the 
amount of land within the Yazoo Backwater Area that floods, as well as 
to remove water faster from those areas that still experience flooding. 
The nonstructural component includes reforestation of up to 40,571 
acres of agricultural lands through the purchase of perpetual 
conservation easements from willing sellers and operation of the Steele 
Bayou control gates to maintain water elevations between 70.0 and 73.0 
feet, NGVD, in the Yazoo Backwater Area waterways during low-water 
periods when practical. Construction of the proposed pumps involves the 
discharge of dredged or fill material into approximately 52.6 acres of 
forested wetlands and other waters of the United States in Issaquena 
County, Mississippi. The estimated Federal cost of the proposed action 
is $220.1 million, with an annual operational cost of $15.1 million.
    This project was authorized by the Flood Control Act of 1941, which 
envisioned a plan to reduce backwater flooding in the Yazoo River Basin 
through a combination of levees, drainage structures, and pumping 
plants fully funded by the Federal government. This act also designated 
Yazoo Backwater Area lands located below 90 feet in elevation to serve 
as a sump area for floodwater storage.
    Over the next 37 years, the Corps planned and executed key flood 
control projects in the Yazoo Backwater Area, including: construction 
of the Will Whittington Auxiliary Channel and Levees in 1962; 
construction of the Steele Bayou and Little Sunflower flood control 
gates, which were completed in 1969 and 1975, respectively; 
construction of the Yazoo Backwater Levee completed in 1978; and 
construction of the Sunflower River to Steele Bayou Connecting Channel 
also completed in 1978.
    In April 1982, EPA provided comments on the Draft Environmental 
Impact Statement (DEIS) for the 1982 version of the proposed project. 
In our comments on the DEIS we highlighted our concerns regarding the 
proposed project's potentially extensive impacts on wetlands and 
associated fish and wildlife habitat and our belief that a less 
environmentally damaging design would meet the project's objectives. We 
stressed the importance of the flood water storage and water quality 
enhancement functions provided by area wetlands and expressed our 
concerns that the proposed project would degrade these critical 
functions. We also expressed concerns that the project would stimulate 
agricultural intensification in flood-prone areas, potentially 
increasing suspended solids, pesticides, and fertilizers in the water 
column, and exacerbate existing water quality problems. Additionally, 
we expressed concerns that the proposed mitigation would not adequately 
minimize and offset the extensive adverse environmental impacts 
associated with the proposed project.
    In our May 1983 comments on the Final Environmental Impact 
Statement (FEIS), we expressed similar concerns. Our review of the FEIS 
concluded that the project would likely ``decrease water quality in the 
area through increases in suspended solids, pesticides and fertilizers; 
reduce natural overbank flooding and decrease nutrients assimilation by 
wetland vegetation; transfer flood peaks downstream; serve as a 
precedent to similarly convert other bottomland hardwood remnants in 
the lower Mississippi River Valley; and greatly diminish a fish and 
wildlife resource, which, due to previous clearing elsewhere, has 
become nationally valuable.''
    The U.S. Fish and Wildlife Service (FWS) also raised similar 
concerns regarding the proposed project. According to FWS, its first 
report on the Yazoo Backwater Area Project and related flood control 
projects in the Yazoo River Basin was issued in 1956. This report 
concluded that losses of fish and wildlife resources as a result of the 
construction of the Yazoo Headwater Project and Yazoo Backwater Project 
would be large, and that the proposed pumps would promote large scale 
clearing of forests and intensification of agriculture in wetlands. In 
February 1978, FWS provided a Fish and Wildlife Coordination Act report 
to the Corps

[[Page 14809]]

which concluded that the pumping plant was environmentally unsound, and 
that the Service was opposed to the project as planned. A subsequent 
Fish and Wildlife Coordination Act report submitted in June 1982 noted 
continued concerns with the proposed project and indicated that it may 
consider the project a candidate for referral to the Council on 
Environmental Quality (CEQ).
    The Water Resources Development Act (WRDA) of 1986 modified the 
funding for the project by requiring a local-cost share. Under this new 
provision, the local project sponsor would provide the lands, 
easements, rights-of-way, relocations, and disposal areas for the 
project, or 25 percent of the construction cost, whichever was greater. 
Work on the project effectively halted. The reauthorization of WRDA ten 
years later in 1996 reversed the cost-sharing provisions established in 
1986 and restored the project to full Federal funding and work on the 
project began once again.
    In 1997, EPA initiated an ecosystem restoration prioritization 
analysis with the U.S. Geological Survey (USGS). This work evolved into 
ecological and economic model development for nonstructural floodplain 
management alternatives in the Yazoo Backwater Area. Between 1998 and 
2000, EPA participated in a series of interagency and stakeholder 
meetings with the Corps, USGS, FWS, the Virginia Polytechnic Institute, 
and representatives of the Board of Mississippi Levee Commissioners to 
discuss concerns regarding the proposed project and potentially less 
environmentally damaging alternatives.
    In 2000, EPA also participated in multiple meetings with a group 
composed of the Mississippi Department of Environmental Quality, 
Mississippi Department of Wildlife, Fisheries and Parks, the Corps, 
FWS, Board of Mississippi Levee Commissioners and Yazoo Backwater Area 
landowners in which we discussed our concerns with the proposed 
project. EPA also voiced its concerns with the proposed project in 
meetings with the Office of Management and Budget (OMB), CEQ and 
representatives from Corps Headquarters in February and March of 2000.
    In September 2000, the Corps released the project's Draft 
Supplemental Environmental Impact Statement (DSEIS). One of the 
purposes of this reformulation of the project's 1982 FEIS was to 
respond to a 1991 directive from OMB to evaluate a broader suite of 
alternatives to the proposed project that would provide: (1) Greater 
levels of flood protection for urban areas; (2) reduced levels of 
agricultural intensification; and (3) reduced adverse impacts to the 
environment. The OMB directive also stated that the revised evaluation 
should include ``full consideration of predominantly nonstructural and 
nontraditional measures'' to address flooding issues.
    In a November 3, 2000, letter to the Corps on the DSEIS, EPA raised 
significant concerns regarding the proposed project's extensive impacts 
to wetlands and associated fish and wildlife resources, its potential 
to exacerbate existing water quality problems in the Yazoo Backwater 
Area, the inadequacy of the proposed compensatory mitigation, and the 
uncertainty associated with the proposed reforestation. We also 
identified, for further consideration, a number of potentially less 
environmentally damaging alternatives that emphasized nonstructural and 
nontraditional measures to address flooding issues. We concluded that 
the project was environmentally unsatisfactory and noted that it was a 
candidate for referral to CEQ under section 309(b) of the Clean Air Act 
and the CEQ regulations at 40 CFR part 1504 and for further action 
under CWA section 404(c).
    Between 2002 and 2005, EPA worked with the Corps to improve its 
evaluation of the extent of wetlands in the Yazoo Backwater Area, the 
extent of wetlands potentially impacted by the project, and the nature 
and degree of these impacts. This work involved extensive site visits 
and data collection in the Yazoo Backwater Area, meetings, and 
conference calls. In December 2005, EPA provided detailed technical 
comments on the revised draft Wetland and Mitigation appendices for the 
DSEIS outlining a number of concerns regarding the evaluation 
approaches used in these appendices. We noted that flaws in these 
evaluation approaches result in an underestimation of the potential 
adverse impacts to wetlands and fish and wildlife resources associated 
with the construction and operation of the proposed pumps and an 
overestimation of the potential environmental benefits associated with 
the proposed reforestation.
    In November 2007, the Corps released the Yazoo Backwater Area 
Reformulation Main Report and Final Supplemental Environmental Impact 
Statement (FSEIS).\1\ Although the Corps responded to many of our 
November 2000 comments on the DSEIS, no substantive modifications had 
been made to the structural component of the proposed project since 
November 2000. In our January 22, 2008, letter to the Corps on the 
FSEIS, we concluded that the nature and extent of anticipated adverse 
environmental impacts continue to be significant and that we continue 
to have significant concerns with the proposed project including: (1) 
Magnitude of anticipated impacts to wetlands and associated fish and 
wildlife resources; (2) compliance with the CWA's substantive 
environmental criteria (i.e., the Section 404(b)(1) Guidelines); (3) 
uncertainties with the proposed reforestation plan; (4) changes in land 
use; (5) environmental justice (EJ) considerations; (6) uncertainty 
with the economic analysis; and (7) the evaluation of potential project 
alternatives. We again identified the project as a candidate for 
referral to CEQ and for further action pursuant to our authorities 
under the CWA.
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    \1\ U.S. Army Corps of Engineers' Yazoo Backwater Area Project 
Reformulation Main Report and FSEIS: http://www.mvk.usace.army.mil/
offices/pp/projects/YBR_Report/index.html.
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    In its January 18, 2008, comment letter to the Corps regarding the 
FSEIS, the FWS shared similar concerns, particularly those associated 
with the proposed project's potentially unacceptable adverse impacts on 
fish and wildlife resources. The FWS also reiterated its determination 
that the project is a candidate for referral to CEQ.
    On February 1, 2008, EPA's Regional Administrator informed the 
Corps and the Board of Mississippi Levee Commissioners of his intention 
to begin a section 404(c) action, based on his belief that the project 
may have an unacceptable adverse effect on fish and wildlife resources. 
During the 15-day response period following the 404(c) initiation 
letter (which was extended to March 3, 2008) EPA met with 
representatives from the Corps and Board of Mississippi Levee 
Commissioners. In addition, EPA had a number of conference calls with 
the Corps during this consultation period to discuss specific technical 
concerns we had with the Corps' analysis (many of which are discussed 
in this notice). However, the Regional Administrator was not satisfied 
that no unacceptable adverse effect would occur, or that adequate 
corrective action would be taken to prevent an unacceptable adverse 
effect, and has published this Proposed Determination in order to 
solicit public comment.

III. Characteristics and Functions of the Site

    The Lower Mississippi River Alluvial Valley (LMRAV) was a 25-
million acre

[[Page 14810]]

area of forested wetlands that extended along both sides of the 
Mississippi River from Illinois south to Louisiana and the Gulf of 
Mexico. The extent and duration of seasonal flooding from the 
Mississippi River fluctuated annually, recharging the LMRAV systems and 
creating a diversity of dynamic habitats that once supported a vast 
array of fish and wildlife resources. Over the past 100 years, the 
greatest changes to the landscape have been land clearing for both 
agriculture and flood control projects. These habitat alterations have 
had an adverse effect on biological diversity and integrity. For 
example, breeding bird surveys show continuing declines in species 
richness and population numbers. In addition to the loss of 
approximately 80 percent of the bottomland forested wetlands within the 
LMRAV,\2\ there have been significant alterations in the region's 
hydrology due to river channel modification, construction of flood 
control levees and reservoirs, and deforestation. The cumulative effect 
of these hydrological alterations has reduced both the extent and 
duration of the annual seasonal flooding, adversely affecting the 
forested wetlands and their associated wetland-dependent species.
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    \2\ Department of the Interior, The Impact of Federal Programs 
on Wetlands, Volume I: The Lower Mississippi Alluvial Plain and the 
Prairie Pothole Region, A Report to Congress by the Secretary of the 
Interior, October 1988 at 60.
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    These significant cumulative aquatic resource losses across the 
broader LMRAV are mirrored in the Mississippi Delta region of the 
LMRAV, in which the Yazoo Backwater Area is situated. Mississippi's 
2005 Comprehensive Wildlife Conservation Strategy \3\ reports that only 
fifteen percent of the Mississippi Delta remains forested and the 
largest segment remaining is the complex of bottomland hardwood forests 
approximately 100,000 acres in size within and surrounding the Delta 
National Forest. Much of this important complex of remaining forests 
and forested wetlands is located in the Yazoo Backwater Area.
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    \3\ Mississippi's Comprehensive Wildlife Conservation Strategy 
(MCWCS) 2005-2015, October 2005: http://www.wildlifeactionplans.org/
pdfs/action_plans/ms_action_plan.pdf.
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    Extensive studies of the Yazoo Backwater Area demonstrate that it 
includes some of the richest wetland and aquatic resources in the 
Nation. These include a highly productive floodplain fishery, a highly 
productive but increasingly rare bottomland hardwood forest ecosystem 
that once dominated the LMRAV, hemispherically important migratory bird 
foraging grounds and one of only four remaining backwater ecosystems 
with a hydrologic connection to the Mississippi River. These wetlands 
provide critical habitat for a variety of wetland-dependent animal and 
plant species, including the federally protected Louisiana black bear 
and pondberry. 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, reduce flood damage by storing 
floodwaters, recharge groundwater and maintain stream flows, and 
sequester significant amounts of elemental carbon.
    Wetlands in the Yazoo Backwater Area have been described by the 
Corps as belonging to the hydrogeomorphic (HGM) riverine backwater 
subclass. This classification indicates that these wetlands flood as a 
result of impeded drainage of small streams, channels, and drainage 
ditches due to high water in larger downstream reaches. As a result of 
this impeded drainage, low lying areas associated with these small 
streams fill with relatively still ``backwater.'' As stated in the 
Yazoo Basin HGM Guidebook, the characteristics of the riverine 
backwater wetlands in this area are: A direct connection to a channel 
during flood stages equivalent to at least the 5-year frequency return 
period; the primary source of hydrology to the wetland is backwater; 
and floodwaters largely drain from the site back to the channel as 
flood stages fall (as opposed to being retained on the site in 
depressions).\4\
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    \4\ Smith, R. D., and Klimas, C. V. 2002. A regional guidebook 
for applying the hydrogeomorphic approach to assessing wetland 
functions of selected regional wetland subclasses, Yazoo Basin, 
Lower Mississippi River Alluvial Valley. ERDC/EL TR-02-04. U.S. Army 
Engineer Research and Development Center, Vicksburg, MS. See: http:/
/el.erdc.usace.army.mil/wetlands/pdfs/trel02-4.pdf.
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    The wetlands of the riverine backwater subclass occur on various 
substrates which developed as a result of Mississippi River meandering. 
This subclass typically contains vegetative communities dominated by 
green ash (Fraxinus pennsylvanica), and Nuttall oak (Quercus nuttallii) 
as well as overcup oak (Q. lyrata) and water hickory (Carya aquatica) 
in more low lying areas. However, in addition to these dominant canopy 
species, willow oak (Q. phellos), Sugarberry (Celtis laviegata), 
American elm (Ulmus americana), cedar elm (U. crassifolia), Red maple 
(Acer rubrum), Cypress (Taxodium distichum), water elm (Planera 
aquatica), and Black willow (Salix nigra) were also found dominating 
many of the field sampled plots in the area.\5\ The combination of the 
hydrologic, soil, and vegetative characteristics of this wetland 
subclass contribute to the wetland processes, or functions, which 
support the area's diverse and abundant flora and fauna. However, 
hydrology is considered by most to be the critical determinant of the 
establishment and maintenance of specific types of wetlands and wetland 
processes.\6\ As thoroughly discussed in the Yazoo Basin HGM Guidebook 
and outlined below, maintenance of the natural hydrologic regime (i.e., 
natural timing, frequency, and duration of water reaching area 
wetlands) is the most important factor in ensuring that riverine 
backwater wetlands in the Yazoo Backwater Area perform important 
functions such as floodwater detention, nutrient cycling, organic 
carbon export, pollutant filtering/removal, and maintenance of 
biologically diverse plant and animal habitat.
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    \5\ EPA, 2008. Yazoo Backwater Area Plant Species List. Wetlands 
Regulatory Section, Water Management Division, EPA Region 4, 
Atlanta, GA.
    \6\ Mitsch, W.J., and Gosselink, J.G. 2000. Wetlands (3rd 
edition). John Wiley and Sons, Inc. New York, NY.
---------------------------------------------------------------------------

    When riverine backwater wetlands are allowed to temporarily detain 
and moderate floodwater they provide a number of important benefits. 
Floodwater interaction with wetlands tends to dampen and broaden the 
flood wave, which reduces peak discharge downstream. Wetlands can 
reduce the velocity of water currents and, as a result, reduce erosion. 
Some portion of the floodwater volume detained within riverine 
backwater wetlands is likely to be evaporated or transpired, thereby 
reducing the overall volume of water moving downstream. The portion of 
the detained flow that infiltrates into the alluvial aquifer, or which 
returns to the channel very slowly via low-gradient surface routes, may 
be sufficiently delayed that it contributes significantly to the 
maintenance of baseflow in some streams long after flooding has ceased. 
Retention of particulates is also an important component of the flood 
detention function because sediment deposition directly alters the 
physical characteristics of the wetland (including hydrologic 
attributes) and positively influences downstream water quality.
    In riverine backwater wetlands, nutrients are stored within, and 
cycled among, four major compartments: (a) The soil; (b) primary 
producers such as vascular and nonvascular plants; (c) consumers such 
as animals, fungi, and bacteria; and (d) dead organic matter, such as 
leaf litter or woody debris, referred to as detritus. The

[[Page 14811]]

transformation of nutrients within each compartment and the flow of 
nutrients between compartments are mediated by a complex variety of 
biogeochemical processes associated with primary production and 
decomposition. These biogeochemical processes and their ability to 
support the rich array of flora and fauna found in the Yazoo Backwater 
Area are directly linked to maintenance of the natural timing, 
frequency, and duration of flooding in the area's riverine backwater 
wetlands systems.
    The high productivity and close proximity of riverine backwater 
wetlands to streams make them important sources of dissolved and 
particulate organic carbon for aquatic food webs and biogeochemical 
processes in downstream aquatic habitats. Dissolved and particulate 
organic carbon is a significant source of energy for the microbes that 
form the base of the detrital food web in aquatic ecosystems. The 
ability of riverine backwater wetlands to perform this critical 
function is directly linked to factors associated with their natural 
hydrologic cycle of backwater flooding, including: (a) The large amount 
of organic matter in the litter and soil layers that comes into contact 
with surface water during flooding; (b) relatively long periods of 
inundation and, consequently, contact between surface water and organic 
matter, thus allowing for significant leaching; (c) the ability of the 
labile carbon fraction to be rapidly leached from organic matter when 
exposed to water; and (d) the ability of floodwater to transport 
dissolved and particulate organic carbon from the floodplain to the 
stream channel.
    The area's riverine backwater wetlands permanently remove or 
temporarily immobilize elements and compounds that are imported to the 
wetland from various sources, but primarily via the natural cycle of 
flooding. Elements include macronutrients essential to plant growth 
e.g., nitrogen, phosphorus, and potassium) as well as heavy metals 
(zinc, chromium, etc.) that can be toxic at high concentrations. 
Compounds include pesticides and other imported materials. The primary 
benefit of this function is that the removal and sequestration of 
elements and compounds by wetlands reduces the load of nutrients, heavy 
metals, pesticides, and other pollutants in rivers and streams.
    This often translates into improved water quality and aquatic 
habitat in adjacent or down gradient rivers and streams.
    Once nutrients and compounds arrive in riverine backwater wetlands, 
they may be removed and sequestered through a variety of biogeochemical 
processes including complexation, chemical precipitation, adsorption, 
denitrification, decomposition to inactive forms, hydrolysis, uptake by 
plants, and other processes. The effective performance of many of the 
most critical biogeochemical processes depends on maintenance of the 
natural hydrologic cycle of flooding in riverine backwater wetlands and 
the anoxic/reducing environment created by periodic cycles of 
inundation and saturation. For example, denitrification will not occur 
unless the soil is anoxic and the redox potential falls below a certain 
level. Flooding for approximately 14 days causes soils to become 
anoxic. When this occurs and other soil conditions are favorable (i.e., 
availability of soil carbon) the nitrogen in nitrate (NO2) 
is removed by denitrification and released as nitrogen gas to the 
atmosphere. In addition, sulfate is reduced to sulfide, which then 
reacts with metal cations to form insoluble metal sulfides such as 
copper sulfide (CuS), iron sulfide (FeS), lead sulfide (PbS), and 
others which then fall out of the water column and are retained by the 
wetland sediments.
    The ability of riverine backwater wetlands to maintain a 
characteristic plant community is important because of the intrinsic 
value of the plant community and the many attributes and processes of 
wetlands that are influenced by the plant community. For example, 
primary productivity, nutrient cycling, and the ability to provide a 
variety of habitats necessary to maintain local and regional diversity 
of animals are directly influenced by the plant community. Due to the 
inundation by nutrient rich floodwaters, a diverse assemblage of plants 
grow in riverine backwater wetlands and contribute to the primary 
production of these ecosystems. The growth of different plant 
communities as a result of variable hydrologic regimes and topography 
contributes to the uptake and release of nutrients and provides many 
layers of potential habitat (i.e., litter layer to canopy) for the 
hundreds of wildlife species which utilize these wetlands. In addition, 
the plant community of river connected wetlands such as riverine 
backwater wetlands in the Yazoo River Basin influences the quality of 
the physical habitat, nutrient status, and biological diversity of 
downstream systems. As noted in the Yazoo Basin HGM Guidebook, 
maintaining the natural hydrologic regime of these wetlands is 
consistently cited as the principal factor controlling plant community 
attributes.
    A broad array of fish and wildlife species utilize the riverine 
backwater wetlands in the Yazoo Backwater Area during some part of 
their life cycles. Terrestrial, semi-aquatic, and aquatic animals use 
these wetlands extensively. These wetlands provide important habitat 
for a diversity of organisms, are sites of high levels of secondary 
production, and are essential in the maintenance of complex trophic 
interactions. Habitat functions span a range of temporal and spatial 
scales. For example, invertebrate communities utilize the organic 
matter generated in these wetlands as a food source and the vertical 
structure of the plant community as refugia from flooding. Amphibian 
and reptile species use the wetlands for breeding and foraging habitats 
and fish utilize floodplains for spawning, rearing, and foraging. Birds 
and mammals utilize the wetlands for food, cover, and nesting. Most 
wildlife and fish species found in riverine backwater wetlands of the 
Yazoo River Basin depend on certain aspects of wetland structure and 
dynamics such as specific vegetation composition and proximity to other 
habitats, but of particular importance to the life cycles of these 
species is the periodic flooding or ponding of water associated with 
the natural hydrologic regime of riverine backwater wetlands.
    The topographic and commensurate hydrologic complexity of these 
riverine backwater wetlands contribute to the biodiversity for which 
they are well known. The World Wildlife Fund estimates that there are 
372 wildlife species occurring in the Mississippi Lowland Forest 
ecoregion, which encompasses the Yazoo River Basin and Yazoo Backwater 
Area.\7\ Of these species 35 are amphibian, 52 are reptiles, 223 are 
birds, and 62 are mammals. According to the Mississippi Museum of 
Natural History, 40 percent of the amphibians, 60 percent of the 
reptiles, 82 percent of the birds, and 71 percent of the mammals from 
the World Wildlife Fund's Mississippi Lowland Forest list occur in the 
Yazoo River Basin.\8\ In addition, 2 amphibian, 4 reptile, 74 bird, and 
5 mammalian species were catalogued by the State beyond what World 
Wildlife Fund reported. Further, the FWS has listed

[[Page 14812]]

258 species of birds which use its complex of refuges located in the 
Yazoo Backwater Area \9\ and over 90 species of fish have been 
documented as utilizing the Yazoo River.\10\
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    \7\ World Wildlife Fund Mississippi Lowland Forest species list: 
http://worldwildlife.org/wildfinder/
searchByPlace.cfm?ecoregion=NA0409.
    \8\ Personal Communication between William Ainslie, EPA Region 
4, and Scott Peyton, Mississippi Museum of Natural History, February 
5, 2008.
    \9\ FWS list of bird species utilizing wildlife refuges in the 
Yazoo Backwater Area: http://www.npwrc.usgs.gov/resource/birds/
chekbird/r4/yazoo.htm.
    \10\ Lee, D.S., C.R. Gilbert, C.H. Hocutt, R.E. Jenkins, D.E. 
McAllister, and J.R. Stauffer, Jr. 1980. Atlas of North American 
Freshwater Fishes. North Carolina State Museum of Natural History. 
Publication 1980-12 of the North Carolina Biological 
Survey. 877 pgs.
---------------------------------------------------------------------------

    According to the State's Comprehensive Wildlife Conservation 
Strategy, bottomland hardwood wetlands such as those in the Yazoo 
Backwater Area provide habitat for 33 species of greatest conservation 
need \11\ including 20 birds, 12 mammals, and 1 reptile. Also, all of 
the standing and running water systems of the Mississippi Alluvial 
Plain, including the Yazoo Backwater Area, have been classified as 
critically imperiled because of their high conservation priority rank 
and the widespread degradation of stream habitats in this region. These 
waterbodies provide important habitat for 23 species of greatest 
conservation need, including 4 fish, 18 mussels, and 1 reptile. 
Finally, the stream habitat that remains in the Upper Coastal Plain 
Yazoo Drainage area, which receives significant hydrologic inputs from 
the Yazoo Backwater Area, is considered to be vulnerable because of 
extensive alteration caused by channelization, agricultural use of 
surrounding lands and impoundments. This portion of the Yazoo River 
Basin provides critical habitat for 17 species of greatest conservation 
need including 1 amphibian, 12 fish, and 1 reptile.\12\
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    \11\ Species of Greatest Conservation Need (SGCN) are those 
animals, both aquatic and terrestrial, that are at risk or are 
declining in a State. They include threatened and endangered 
species, as well as other species of concern. The SGCN for 
Mississippi was developed through a rigorous analysis of the 
Mississippi Natural Heritage Program's list of ``Animals of Special 
Concern'' (ASC). An Expert Team of scientists evaluated the 
approximately 1,500 species from the ASC and narrowed this list down 
to only the species most at risk--resulting in approximately 300 
Species of Greatest Conservation Need statewide (MCWCS, 2005).
    \12\ MCWCS, 2005.
---------------------------------------------------------------------------

    In its comments in the FSEIS, the FWS reports that the Lower Yazoo 
Delta is part of a major continental migration corridor for birds 
funneling through the midcontinent from as far north as the Arctic 
Circle and as far south as South America. The Yazoo Backwater Project 
Area comprises approximately 926,000 acres located in LMRAV, through 
which 60 percent of all bird species in the U.S., over 40 percent of 
the Nation's waterfowl population, and 500,000 to 1,000,000 shorebirds 
migrate on a biannual basis. FWS also notes that natural springtime 
flooding in the area's riverine backwater wetlands coincides with two 
major events in the LMRAV: (1) Native bird and waterfowl migration that 
requires suitable and productive stopover and foraging habitats to meet 
migratory energy needs; and (2) breeding bird and waterfowl nesting 
that requires adequate nesting and foraging habitats to meet 
reproductive and rearing needs.

IV. Basis of the Proposed Determination

A. Section 404(c) Standards

    The CWA requires that exercise of the final section 404(c) 
authority be based on a determination of ``unacceptable adverse 
effect'' to municipal water supplies, shellfish beds, fisheries, 
wildlife, or recreational areas. In making this determination EPA takes 
into account all information available to it, including any written 
determination of compliance with the Section 404(b)(1) Guidelines. 
EPA's regulations at 40 CFR 231.2(e) define ``unacceptable adverse 
effect'' as:

Impact on an aquatic or wetland ecosystem which is likely to result 
in significant degradation of municipal water supplies or 
significant loss of or damage to fisheries, shellfishing, or 
wildlife habitat or recreation areas. In evaluating the 
unacceptability of such impacts, consideration should be given to 
the relevant portions of the Section 404(b)(1) Guidelines (40 CFR 
part 230).
    Those portions of the Guidelines relating to less environmentally 
damaging practicable alternatives, significant degradation of waters of 
the United States, water quality impacts, and impact minimization are 
particularly important to evaluating the unacceptability of 
environmental impacts in this case. The Guidelines prohibit any 
discharge of dredged or fill material where: (1) There is a less 
environmentally damaging practicable alternative to meet the project 
purpose; (2) the proposed project would violate other environmental 
standards, including applicable water quality standards; (3) the 
proposed project would cause or contribute to significant degradation 
of the Nation's waters; or (4) the proposed project fails to adequately 
minimize and compensate for wetland and other aquatic resource losses 
(see 40 CFR 230.10(a)-(d)).

B. Adverse Impacts of the Proposed Project

    EPA believes the proposed project will result in significant 
adverse environmental impacts to extensive areas of ecologically 
significant and important forested wetlands and their associated 
fisheries and wildlife resources. At a minimum, the construction and 
operation of the proposed pumps would degrade the critical functions 
and values of approximately 67,000 acres of nationally significant 
wetland resources in the Yazoo River Basin. Of this total, 
approximately 26,300 acres would be hydrologically modified (i.e., 
reduced flood duration) to the extent that they would no longer be 
defined as wetlands and would lose CWA regulatory protection. The 
natural timing, frequency, and duration of water reaching the remaining 
approximately 40,700 acres of wetlands would be impacted by the 
proposed pumping, altering the wetlands' ecological characteristics and 
reducing their functions. As a point of reference, the impacts 
estimated by the Corps for this single project are more extensive than 
the total impacts (on an annual average basis) associated with the 
86,000 projects authorized by the Corps permit program nationwide each 
year.\13\ We do not believe that impacts of this magnitude are 
consistent with the requirements of the CWA. Our concerns regarding 
this project are amplified because we believe the potential adverse 
impacts to wetlands and associated fish and wildlife resources may be 
much greater than the Corps has estimated.
---------------------------------------------------------------------------

    \13\ Based on data from Fiscal Years 1999 to 2003. Source: Corps 
Regulatory Program, Headquarters, 2008. See: http://
www.usace.army.mil/cw/cecwo/reg/2003webcharts.pdf.
---------------------------------------------------------------------------

1. Significant Degradation and Adverse Effects
    The annual hydrologic cycle of water moving into and out of the 
project area defines the ecological attributes of the project area's 
wetland and aquatic resources and fuels the fundamental processes 
essential to fish and wildlife productivity. This annual water cycle 
not only makes the project area's diverse habitats accessible to fish 
and wildlife but also provides the primary linkages that transfer 
energy and organisms between the project area wetlands and the rest of 
the lower Mississippi River ecosystem.
    The basic objective of the project is to limit the spatial extent, 
frequency, and length of time the Yazoo Backwater Area floods. The 
ecological effect of this project will be to dampen the natural 
variability in flood regime (the flood pulse) which currently 
contributes to the biodiversity of the project area's wetlands. 
Operation of the proposed pumps will dramatically alter the hydrologic 
cycle of this area, and would therefore eliminate or significantly

[[Page 14813]]

degrade many of the critical ecological functions provided by wetlands 
in the Yazoo Backwater Area, including floodwater detention, nutrient 
cycling, organic carbon export, pollutant filtering/removal, and 
maintenance of biologically diverse plant and animal habitat.
    The reduction or elimination of the floodwater detention function 
of wetlands in the Yazoo Backwater Area as a result of the proposed 
project could increase peak discharges and water currents in the 
Mississippi River, and exacerbate flooding problems downstream at a 
time when communities in the lower Mississippi River Valley are still 
struggling to recover from the effects of recent catastrophic flooding. 
By maintaining water levels of regular flood events at approximately 
87.0 feet, NGVD, at the Steele Bayou gauge, water would not be allowed 
to collect for significant periods of time in the backwater wetlands. 
Instead, water that would otherwise remain in the wetlands would be 
drawn off by the pump and discharged to the Mississippi River. Reducing 
or eliminating the floodwater detention function of project area 
wetlands will also decrease the amount of water delivered to plants and 
allowed to infiltrate into the alluvial aquifer in the Yazoo Backwater 
Area. The effect of the project is to increase the overall volume of 
water moving downstream. Not allowing adequate time for floodwater 
infiltration in the Yazoo Backwater Area will also reduce the amount of 
water that returns to area streams as baseflow. This is particularly 
critical in the Yazoo Backwater Area as dewatering of the alluvial 
plain has already resulted in extremely low seasonal flows in area 
streams. For example, the Sunflower River flow rate often drops below 
the minimum low flow rate established by the USGS (i.e., the 7Q10 low 
flow rate).\14\
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    \14\ MCWCS, 2005.
---------------------------------------------------------------------------

    Reducing the spatial extent, frequency, and duration of time 
project area wetlands flood will significantly reduce the amount of 
dissolved and particulate organic carbon available for wetland and 
aquatic food webs as well as biogeochemical processes in downstream 
aquatic habitats. The microbial and invertebrate communities, which are 
critical to the breakdown and recycling of organic matter in these 
wetlands, are adapted to the periodic pulsing of floodwaters which 
currently occurs. Without these periodic flood pulses, microbial and 
invertebrate communities will diminish, and this will affect the 
capacity of the wetland to maintain the base of the food chain. The 
cycling and export of dissolved and particulate carbon requires 
prolonged contact between soil organic matter, flood waters, and the 
invertebrate community and subsequent floodwater transport downstream--
circumstances that would be dramatically altered by the proposed 
project.
    Reducing the spatial extent, frequency, and duration of time 
project area wetlands flood will reduce the capacity of area wetlands 
to remove water pollutants, thus exacerbating existing water quality 
problems in the Yazoo Backwater Area. Many water pollutants are 
imported to wetlands via flood water. Hydrologic alterations associated 
with the proposed project (i.e., prevention of floodwater from 
accessing wetlands) will reduce the level of sediment deposition as 
well as the levels of permanent removal and temporary immobilization of 
nutrients, metals, and other elements and compounds in project area 
wetlands. Loss or reduction of this important water quality enhancement 
function is of particular concern in light of existing water quality 
concerns in the Yazoo Backwater Area. The State reports that overall 
water quality is lower in this area than anywhere else in the State, as 
evidenced by a region-wide advisory regarding fish consumption, and 
numerous consumption bans in some area waters because of high pesticide 
levels.\15\
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    \15\ MCWCS, 2005.
---------------------------------------------------------------------------

    Although the FSEIS concludes otherwise, we believe there is 
potential for conversion of those 26,300 acres that, as a result of the 
project, would no longer be defined as wetlands and would lose CWA 
regulatory protection. These conversions of wetlands to other uses 
could result in additional adverse environmental effects. For example, 
agricultural conversion could change a forested wetland habitat to an 
agriculture use, destroying or significantly degrading all wetland 
functions. Agricultural intensification could have water quality 
implications by promoting faster and increased surface water runoff 
from agricultural fields. Given that the Yazoo Backwater Area already 
contains CWA section 303(d)-listed impaired waterbodies, additional 
runoff impacts would likely exacerbate the elevated concentrations of 
the pollutants of concern, potentially causing or contributing to 
violations of applicable state water quality standards (40 CFR 
230.10(b)).
    Reducing the spatial extent, frequency, and duration of time 
project area wetlands flood will dramatically alter the structure and 
species composition of the plant community in the Yazoo Backwater Area. 
Wetland plant communities will shift over time to communities composed 
of species adapted to drier environments. For example, large areas 
currently dominated by Nuttall oak and green ash or overcup oak and 
water hickory will eventually become drier and be replaced by less 
flood tolerant species such as sweetgum, which produces mast that has a 
lower biological value to wildlife. This shift will result in a 
commensurate reduction in the habitat for other wetland dependent plant 
species found in the Yazoo Backwater Area such as pondberry, which is 
listed as Federally endangered under the Endangered Species Act. As 
discussed below, this large shift in plant communities will also have 
adverse effects on area fish and wildlife which depend on these wetland 
plant species, and the hydrologic regimes they represent, to meet 
specific life history requirements.
    Reducing the spatial extent, frequency, and duration of time 
project area wetlands flood will significantly degrade their capacity 
to provide habitat for an extensive list of fish and wildlife species. 
Insect larvae, midges, oligocheates (worms), scuds (microcrustaceans), 
crayfish, worms, snails and spiders make up a critical component of the 
macroinvertebrate communities that thrive in the area's riverine 
backwater wetlands due to the presence of saturated soils, organic 
material and periphyton (a layer of microbial organisms which colonize 
detrital material). These invertebrates not only contribute to the 
breakdown of organic material (shredders and grazers) but they are also 
critical sources of prey for fish, waterfowl, rodents, bats, and birds. 
The draining and drying of area wetlands associated with the proposed 
project would significantly reduce the species diversity, as well as 
the richness and productivity of the area's macroinvertebrate 
community, thus adversely impacting an extensive list of vertebrate 
species which depend upon the wetlands' rich macroinvertebrate 
community for nourishment.
    Reducing the spatial extent, frequency, and duration of time 
project area wetlands flood will also adversely impact amphibian and 
reptile species in the Yazoo River Basin that depend upon wetlands for 
breeding and foraging habitat. The life cycles of amphibians and 
reptiles in alluvial floodplain ecosystems are linked to hydrology as

[[Page 14814]]

well as soil conditions and climate.\16\ Abiotic factors that influence 
habitat conditions within floodplains include hydrologic regime, flood 
pulse intensity and duration, topography, wetland permanence 
(hydroperiod), water quality, and connectivity to rivers or streams. 
For many amphibians, the hydrology associated with floodplain wetlands 
is necessary for breeding and egg laying. The proposed project would 
desiccate these floodplain habitats making it difficult for portions of 
the amphibian population to survive. The proposed project would also 
adversely affect reptile and amphibian species by modifying river-
wetland connectivity, reducing flood pulses and wetland water recharge, 
and increasing habitat fragmentation.
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    \16\ Jones, J.C. and J.D. Taylor. 2005. Herptofauna communities 
in temperate river floodplain ecosystems of the southeastern United 
States. pages 235-257. in L.H. Frederickson, S.A. King, and R.M. 
Kaminski, eds. Ecology and Management of Bottomland Hardwood 
Systems: The State of our Understanding. University of Missouri-
Columbia, Gaylord Memorial Laboratory Special Publication No.10, 
Puxico.
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    The proposed project will reduce extensive areas of flooded 
wetlands which provide critical habitat for fish spawning, rearing, 
foraging, and cover. As the FWS noted in its review of the FSEIS, the 
backwater floodplain in the project area supports a diverse fishery, 
and relative fish abundance is highly dependent upon seasonal overbank 
or backwater flooding. It also noted that reproduction by 55 of the 140 
(39 percent) resident fish species in the Mississippi River is 
dependent on backwater flooded areas. According to the FWS, the 
proposed action would reduce the areal extent of wetlands subject to 
flooding in the Yazoo Backwater Area that are critical to fishery 
reproduction by approximately 46 percent, or 112,600 acres, during the 
critical spawning and rearing months. Spring flooding is the major 
factor responsible for fishery productivity within the Yazoo River 
Basin. It provides access to protective spawning and nursery habitat 
outside the stream channels where larger predatory fish species live. 
These shallowly flooded areas remain inundated for a duration that 
allows water temperatures to rise quickly, providing suitable spawning 
habitat, and allowing for optimum larval fish growth. Once the larval 
fish hatch and their yolk sack is absorbed (7 to 10 days), these 
seasonally flooded bottomland hardwood areas provide protective shallow 
water areas with an abundance of cover for protection from predators, 
as well as the organic matter, nutrients, and invertebrates needed for 
larval and juvenile fish growth.
    Backwater riverine wetlands such as the ones that would be impacted 
by the proposed project are used by more bird species than most other 
ecosystems in North America.\17\ Project area wetlands provide 
migratory bird habitat of hemispheric significance, particularly for 
waterfowl, shorebirds, over-water nesting waterbirds and wading birds, 
as well as numerous migratory songbirds. The loss of the productive 
shallowly flooded wetlands, especially in the spring months when the 
proposed pumps will be in operation, will impact migratory birds such 
as shorebirds and waterfowl as they stop over and forage in preparation 
for their seasonal migration. Fewer shallowly flooded wetlands will 
reduce foraging habitat, which will equate to reduced nutritional 
uptake and could result in higher mortality or reduced reproductive 
fitness as the birds travel the great distances between their wintering 
and breeding areas in the northern U.S., Canada, and the Arctic. 
Breeding for many species could be adversely affected during the 
spring-time nesting season because foraging areas would be reduced. As 
a result of the reduction in flooding, adult birds will have to travel 
longer distances to find food, which equates to longer times away from 
the nest and their chicks and may ultimately lead to higher nest 
mortality and lower recruitment.
---------------------------------------------------------------------------

    \17\ Heitmeyer, M.E., R.J. Cooper, J.G. Dickson, and B.D. 
Leopold. 2005. Ecological relationships of warmblooded vertebrates 
in bottomland hardwood ecosystems. Pages 281-306. in L.H. 
Frederickson, S.A. King, and R.M. Kaminski, eds. Ecology and 
Management of Bottomland Hardwood Systems: The State of our 
Understanding. University of Missouri--Columbia, Gaylord Memorial 
Laboratory Special Publication No.10, Puxico.
---------------------------------------------------------------------------

    The hydrologic regime of backwater riverine wetlands creates 
seasonal pulses of nutrient flow and food resources. The timing of 
these seasonal pulses of energy is important to many wetland dependent 
birds and mammals inhabiting the Yazoo Backwater Area. The consequences 
of even modest changes in the timing of events can adversely affect 
these species. For example, delayed or reduced flood hydrology caused 
by the proposed project in late fall or early winter could delay and 
decrease detrital invertebrate populations in late winter and spring, 
which would affect, among other factors and other species, the foraging 
resources for mallards, egg-laying of night herons and hooded 
mergansers, embryo development in raccoons and storage of nutrient 
reserves needed by hibernating black bears.\18\
---------------------------------------------------------------------------

    \18\ Heitmeyer et al., 2005.
---------------------------------------------------------------------------

    The proposed project would significantly degrade critical habitat 
for many of the 258 species of birds (e.g., little blue herons, yellow-
crowned night herons, wood storks and prothonotary warblers), many 
species of waterfowl (e.g., wood ducks, mallards, blue and green-winged 
teal) \19\ and over 90 species of fish (e.g., catfish, sunfish and 
crappies) \20\ which have been documented as utilizing wetlands and 
other waterbodies in the Yazoo Backwater Area and Yazoo River. The 
proposed project would also degrade critical habitat for 33 species of 
greatest conservation need which depend on bottomland hardwood wetlands 
in the Yazoo Backwater Area, including the Louisiana black bear which 
is listed as Federally threatened under the Endangered Species Act and 
the American black bear, 23 species of greatest conservation need which 
depend on standing and running waterbodies in the Yazoo Backwater Area, 
and 17 species of greatest conservation need which depend on the Yazoo 
River and its major tributaries.\21\
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    \19\ FWS list of bird species utilizing wildlife refuges in the 
Yazoo Backwater Area: http://www.npwrc.usgs.gov/resource/birds/
chekbird/r4/yazoo.htm.
    \20\ Lee et al., 1980.
    \21\ MCWCS, 2005.
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    The proposed project would degrade critical ecological functions 
provided by wetlands in the Yazoo Backwater Area including floodwater 
detention, nutrient cycling, organic carbon export, pollutant 
filtering/removal, and maintenance of biologically diverse plant and 
animal habitat. We believe that impacts to these functions at the scale 
associated with this project will result in significant degradation (40 
CFR 230.10(c)) of the Nation's waters, particularly in light of the 
extensive historic wetland losses in the lower Mississippi Valley and 
specifically the Yazoo Backwater Area.
2. Underestimation of Adverse Effects
    a. Underestimation of the Spatial Extent of Adverse Effects. EPA 
believes the spatial extent of wetlands potentially impacted by the 
proposed project is much greater than that estimated in the FSEIS. 
EPA's analysis identified 81,000 acres of jurisdictional wetlands 
located outside of the wetland impact assessment area established in 
the FSEIS. EPA believes a significant portion of these wetlands are 
connected to backwater flooding and will be adversely impacted by the 
project. However, the FSEIS did not evaluate impacts to these wetlands.

[[Page 14815]]

    In our November 2000, comment letter on the DSEIS, we recommended 
that the Corps expand its scope of wetland impact assessment to include 
jurisdictional wetlands in the 2-year floodplain (i.e., 91.0 foot, NGVD 
elevation). While the FSEIS implies that there are more jurisdictional 
wetlands in the 100-year floodplain than previously estimated in the 
DSEIS, the FSEIS concludes that only those wetlands flooded for 5 
percent of the growing season and which occur at or below the 88.6 
foot, NGVD elevation (i.e., the wetland impact assessment area 
established in the FSEIS using the Flood Event Assessment Tool (FEAT)/
Flood Event Simulation Model (FESM)) will be affected by this project. 
The FSEIS also concludes that any wetlands occurring outside the FEAT/
FESM modeled boundary are not connected to the backwater ecosystem and 
thus would not be impacted by the pumping project. We disagree and, as 
discussed further below, note that data included in the FSEIS supports 
our position that a significant amount of jurisdictional wetlands 
outside the FEAT/FESM modeled boundary is indeed connected to the 
backwater ecosystem, and thus will likely be adversely impacted by the 
proposed project.
    During the course of this project several attempts have been made 
to estimate the spatial extent of wetlands based upon remote sources of 
data (i.e., Geographic Information Systems (GIS), satellite images, 
hydrologic models). These remote based estimates of jurisdictional 
wetland extent ranged from approximately 60,000 to over 200,000 acres. 
Since these landscape level estimates were based on remote data with 
un-estimated error, EPA determined a field based, statistical survey 
would provide a more precise and scientifically defensible basis for 
establishing the extent and spatial distribution of wetlands in the 
study area. Therefore, in 2003, EPA in cooperation with the Corps, the 
FWS and the Natural Resources Conservation Service (NRCS) implemented a 
field sampling survey designed by EPA's Environmental Monitoring and 
Assessment Program (EMAP). EMAP survey designs and methods have been 
developed and tested within EPA's Office of Research and Development 
over the past decade with published results. Discussion of the methods 
and results of the EMAP survey were incorporated into Appendix 10 of 
the FSEIS.
    The spatial extent and distribution of wetlands in the Yazoo 
Backwater Area was determined with known confidence using EPA's EMAP 
survey design and analysis. Based on this design, the total wetland 
extent for the 100-year floodplain is approximately 212,000 acres. Most 
of the wetlands were found in the FEAT/FESM predicted area. However, 
EMAP also found approximately 81,000 acres of jurisdictional wetlands 
occurring outside the wetland boundary predicted by the Corps' FEAT/
FESM model. It is the potential impacts to these wetlands that EPA 
believes were not analyzed in the FSEIS.
    The stated effect of the Yazoo Backwater Area Project is the 
reduction of the areal extent and duration of floods greater than the 
1-year flood (FSEIS, paragraph 31). Paragraphs 194-195 in the Main 
Report state that the timing, frequency and duration of flooding will 
be affected by the project. Therefore, areas typically covered/
inundated by 2-, 5-, 10-, 25-, 50-, and 100-year flood events will be 
reduced with the proposed project (i.e., less area will be flooded). 
These areas contain a substantial acreage of wetlands.
    Data included in the FSEIS indicates that hydrologic connections 
exist amongst wetlands beyond those depicted by FEAT/FESM. Table 10-7, 
in the Wetlands Appendix of the FSEIS indicates that the March 10, 
1989; March 21, 1987; and the January 9 and 13, 1983 satellite scenes 
show between 18,000 and 71,000 acres flooded in the area between 91.0 
feet and 100 feet, NGVD (i.e., 2-100 year band). Hence, it is likely 
that the jurisdictional wetlands between the 2-year and 100-year flood 
elevations currently experience flooding. This conclusion is further 
supported by the statement that the FESM model overestimates flooding 
close to the channels utilized by the model, but does ``less well'' 
when flooded areas are away from the channels (FSEIS, paragraph 43). 
EPA interprets this to mean that areas away from the FESM channels 
could flood, but the model is unable to depict those flooded areas. 
FSEIS Tables 10-10 (Areal extent of wetlands by composite wetland cell 
value) and 10-11 (Wetland losses by duration interval and duration 
zone) in the Wetlands Appendix (Appendix 10) and Plate 10-25 indicate 
there are wetland areas beyond the FEAT boundary that flood and would 
be affected by the proposed pump by virtue of having decreased flood 
durations after the project. These items in Appendix 10 indicate 
impacts to be approximately 60,000 acres. The Wetland Appendix also 
indicates that approximately 41,000 acres outside the Corps' assessment 
area (i.e., ``Tier 2'' wetlands in Table 10-16) flood during the 2-year 
return period flood.
    Corps' hydrologic data also indicate that flooded wetlands exist in 
the 2-year floodplain and will be impacted through a change in flood 
duration as well as a change in flood frequency. In 2004, the Corps 
provided EPA with a copy of the Period of Record gage data for the 
years 1943 to 1997. These data contained daily gage records, presumably 
as outputs from the Period of Record Routing model, for the with- and 
with-out project scenarios at Steele Bayou and Little Sunflower gages. 
A frequency analysis of this data indicates the 2-year flood elevation 
(stage) is 91.0 feet, NGVD in the Lower Ponding area and 91.6 feet, 
NGVD in the Upper Ponding area (FSEIS, Appendix 6--Engineering Summary 
and Appendix 10). A stage duration analysis of these data indicates 
that, over the entire period of record, flooding sufficient for wetland 
hydrology occurs in areas between 89.0 feet and 92.0 feet, NGVD at 
Steele Bayou under base conditions.\22\ As a result of the proposed 
project, durations would be decreased, on an average annual basis, by 
4.5 percent or 15 days. Flood frequency would be changed, at this 2-
year return interval elevation, approximately 45 percent. This 
corresponds to the Corps' calculated stage reductions of approximately 
4.5 feet (92.9 feet, NGVD reduced to 88.5 feet, NGVD) at Steele Bayou.
    Corps' stage-frequency data indicates flooding will become much 
less frequent in the 2- and 5-year floodplains, increasing from a 2-
year return interval to a 10-year return interval and a 5-year return 
interval to a 50-year return interval (FSEIS, Appendix 6, Table 6-14 
and 6-15). This would result in significant impacts to, among other 
functions, the hydrologic functions of wetlands in the 2-year 
floodplain. However, by restricting the impact assessment area to only 
the FEAT/FESM modeled areas, the Corps is ignoring changes in flood 
duration and frequency that will result in major impacts to wetlands 
outside the FSEIS's assessment area.
    Existing information regarding the extensive hydrologic network in 
the Yazoo Backwater Area offers further support that wetlands outside 
the Corp's assessment area would be affected by the proposed project. 
The National Hydrography Dataset (NHD) is a comprehensive set of 
digital spatial data that encodes information about naturally occurring 
and constructed bodies of water and paths through which water flows. 
The NHD is mapped at a 1:100,000 scale. When the NHD for the Yazoo 
River Basin is overlain with the wetland points surveyed in EMAP, the 
density of stream channels at this

[[Page 14816]]

scale strongly indicates that backwater has a great many conduits and 
that many wetlands on the 2-year floodplain represented by EMAP data 
points are connected or adjacent to channels. This finding is 
consistent with the detailed characterization of the Yazoo Backwater 
Area's hydrology found in the Yazoo Basin HGM Guidebook, which states 
that during periods of backwater flooding the area's extensive drainage 
networks ``function in reverse and deliver water to low areas far from 
the source stream.''
    For these reasons, EPA believes that a significant portion of the 
81,000 acres of jurisdictional wetlands identified in the EMAP analysis 
that exist outside of the Corps' wetland assessment area are connected 
to backwater flooding and will likely be adversely affected by the 
project. These wetlands were not evaluated in the FSEIS's impact 
assessment.
    b. Underestimation of the Degree and Nature of Adverse Effects. In 
addition to significantly underestimating the spatial extent of 
wetlands potentially impacted by the proposed project, wetland, fish, 
and wildlife functional assessments in the FSEIS also understate the 
degree and nature of adverse impacts to the wetlands that were 
evaluated. EPA encouraged the use of the HGM assessment method and the 
Habitat Evaluation Procedure (HEP) as tools to help evaluate wetland 
functions, and we still support the use of those tools; however, we 
believe that certain factors used in the application of these 
assessment tools are flawed, leading to a significant underestimation 
of the proposed pumping station's adverse impacts on the aquatic 
ecosystem. Our primary concerns include:
     The summation of assessment units (i.e., Functional 
Capacity Units and Habitat Units) in the FSEIS obscures significant 
wetland, fish, and wildlife impacts. For example, the HGM assessment 
evaluated eight functions performed by affected wetlands and estimated 
how these functions would decrease at wetlands adversely impacted by 
the proposed pumping and increase at reforestation/mitigation sites. 
These functions are: detain floodwater, detain precipitation, cycle 
nutrients, export organic carbon, physical removal of elements and 
compounds, biological removal of elements and compounds, maintain plant 
communities, and provide wildlife habitat. In drawing its conclusion 
that the proposed project would result in an overall 19.5 percent 
increase in wetland functions, not only does the FSEIS factor in 
unsubstantiated and improbable benefits associated with the proposed 
restoration as discussed below, it also adds the losses and gains for 
each of the eight functions. This kind of comparison is of concern 
because it allows large predicted gains in functions such as 
maintaining plant communities to obscure losses in other critical water 
quality related functions.
     Impacts to key functions are omitted. In the HGM 
assessment, no effect is shown in the detain floodwater function as a 
result of this project despite the fact that this is one of the 
functions which the proposed pumping project is designed to most 
dramatically impact. In its discussion of the detain floodwater 
function, the Yazoo Basin HGM Guidebook clearly states the importance 
of duration of flooding on the performance of this function. However, 
despite this recognition, the duration information which was 
incorporated into several other functions in the FSEIS's HGM assessment 
(which did indicate project related impacts) was not incorporated into 
the detain floodwater function.
     The flood frequency variable shows no change in HGM 
assessment. Despite information in the FSEIS Engineering Appendix 
(Table 10-6) which indicates that the proposed project will result in 
less frequent flooding in areas above the 1-year floodplain, the 
frequency of flooding variable in the HGM assessment models reflects no 
change, for any function. This seems incongruous, since the entire 
stated objective of the project is to modify the timing, frequency and 
duration of flooding (FSEIS, paragraph 194).
     Despite the pumping project, the HGM assessment assumes 
that vegetative species composition remains approximately static over 
time. Over the course of the 50-year project and beyond, the vegetation 
structure of the Yazoo Backwater Area would change as significant areas 
at higher elevations shift to drier species composition. The FSEIS's 
HGM assessment assumes that vegetative species composition remains 
static through time or that the species shift would still be within the 
range of reference standards. However, if the hydrologic regime of the 
area is significantly changed, as proposed, there would be much larger 
changes in the plant and animal community than was accounted for in the 
FSEIS's HGM assessment.
     The HEP and HGM assessments assume that land use will not 
change over the 50-year life of the project. For example, the 
assessment assumes that mature wetland forest that is hydrologically 
modified to the extent that it is no longer defined as a wetland would 
stay mature forest despite no longer being provided CWA regulatory 
protection. We believe this assumption is not supported by a more 
careful evaluation of land-use trends. For example, given the rise in 
prices for agricultural products in the Mississippi Delta, and the 
strong increase in domestic production of corn nationwide, agricultural 
intensification is a serious possibility.
     The HEP assessment underestimates the amount of aquatic 
spawning habitat adversely affected. According to the HEP model used, 
fish spawning habitat requires 8 days of continuous inundation at least 
1 foot in depth, from March to May. Based on these requirements and 
hydrologic data provided by the Corps, 3300 acres of habitat would be 
lost as a result of the project. However, this amount of lost habitat 
is inconsistent with values reported in the Wetland Appendix (Table 10-
10). The Wetland Appendix indicates that approximately 39,000 acres 
which currently flood for 14 days or less (but greater than 7 days) 
would, as a result of the proposed project, only flood for less than 7 
days (i.e., shift to the <2.5 percent duration band). EPA's 
interpretation of Table 10-10 is that there is currently at least 
39,000 acres of potentially suitable fish spawning habitat that will 
become unsuitable after project implementation. These impacts appear 
far greater than the 3300 acres of lost spawning habitat discussed in 
the FSEIS's Aquatics Appendix and would require far more compensation 
than what is proposed in the FSEIS.
     Inappropriate selection of fish species for the HEP 
assessment results in an underestimation of the proposed project's 
adverse effects on fisheries. The nine fish species selected for the 
FSEIS's HEP assessment do not represent fish species whose life cycles 
would be affected by the proposed project's hydrological modifications 
within riverine backwater wetlands. All nine of the fish species 
evaluated in the HEP are commonly found in larger open water systems 
and do not require floodplain habitats for their spawning or rearing. 
Thus, the HEP assessment underestimates how the proposed project would 
impact the large number of fish species which do require floodplain 
connections and periodic flooding events for key aspects of their life 
cycles such as spawning and rearing.
     HEP does not evaluate the impacts of the proposed project 
on amphibians and reptiles. The FSEIS's HEP assessments exclude 
entirely any assessment of the proposed project's adverse impacts on 
amphibians and reptiles. Species in both of these classes of animals 
depend upon wetland habitat

[[Page 14817]]

to meet numerous life history requirements and would experience 
extensive adverse effects from the proposed project.
    The FSEIS's exclusion from analysis of wetlands above the 2-year, 5 
percent flood duration elevation, and in particular wetlands above the 
2-year, 5 percent duration flood elevation and within the 5-year flood 
elevation, does not acknowledge the influence and importance of shorter 
duration and less frequent flooding on establishing and maintaining the 
diversity of wetlands and the functions they provide. Nor does it 
recognize the impacts of the reduction in flooding resulting from the 
project on the maintenance of that diversity of wetlands and the 
biodiversity they support. The importance of wetland functions within 
and above the 2-year, 5 percent flood elevation is noted in the Yazoo 
Basin HGM Guidebook which states ``one of the primary criteria used to 
identify wetland subclasses in the Yazoo Basin is flood return 
interval. A 5-year or less flood return interval is regarded as 
sufficient to support major functions that involve periodic connection 
to stream systems.'' Shorter duration and less frequent flooding will 
significantly and adversely affect the vegetation and aquatic animal 
communities within these wetlands, nutrient and sediment cycling, and 
other functions that establish and maintain the diversity of habitats 
critical for fish and wildlife dependent upon them, including 
waterfowl, shorebird, and wading bird foraging habitats, fish spawning 
and rearing habitats, and amphibian, reptile, and mammal habitats. 
Reducing the spatial extent, frequency, and duration of time project 
area wetlands flood will result in the reduction and loss of important 
wetland functions, according to the criteria outlined in the Yazoo 
Basin HGM Guidebook. These reductions and losses in wetland functions 
were not adequately factored into the FSEIS's HGM and HEP assessments.
3. Overestimation of Environmental Benefits
    Both the HGM and HEP analyses assume extensive yet unsubstantiated 
and improbable environmental benefits from the project's proposed 
reforestation. These analyses assume that the entire proposed 55,600 
acres of reforestation and mitigation will be obtained and that every 
acre will be ideally situated in the target area (i.e., areas currently 
in agricultural production within the two-year floodplain that will 
flood for a sufficient period to yield equivalent wetland functions) to 
produce maximum environmental benefits for all affected resources. 
However, EPA's EMAP assessment and the Corps' land use assessment 
(FSEIS, Table 10-9) indicate that there are not enough acres of cleared 
wetlands with the proper hydrology and soils in the target area to 
satisfy this goal. Aside from the project's compensatory mitigation 
(discussed below), there are no commitments to initiate any of the 
reforestation prior to initiating operation of the pumps. Further, no 
reforestation (or mitigation) sites have been identified or secured and 
the FSEIS indicates that these sites may not be located in the target 
area or even the greater Yazoo--Mississippi Delta (Main Report, 
paragraph 316). If sites are found, the reliance on willing sellers 
would likely result in a noncontiguous patchwork of fragmented sites 
that cannot deliver the kinds of ecological benefits predicted by the 
HGM and HEP assessments.
    Based on our review of available information, EPA believes the 
proposed project would result in extensive adverse impacts to wetland 
functions and fish and wildlife resources; impacts which would be 
inconsistent with the CWA. As discussed below, we do not believe the 
proposed compensatory mitigation would reduce these adverse impacts to 
an acceptable level.

C. Mitigation

    To offset the project's extensive adverse environmental impacts, 
the Corps proposes 10,662 acres of compensatory mitigation. 
Compensation would consist of reforestation and conservation of areas 
located in previously cleared wetlands to restore those areas to 
bottomland hardwood forests. However, compensation sites have not been 
specifically identified for the proposed mitigation. Rather, the FSEIS 
states that conservation easements will be purchased only from 
``willing sellers'' to conduct the proposed compensatory mitigation.
    EPA has significant concerns regarding the adequacy of the proposed 
compensatory mitigation. Based on our preliminary review of the HGM and 
HEP analyses, we believe that compensation requirements for impacts of 
this type and on this scale would be much greater than that estimated 
in the FSEIS. In addition, there do not appear to be enough acres of 
cleared wetlands with the proper hydrology and soils in the target area 
to satisfy more accurate projections of the mitigation needs of the 
proposed project. Even if sufficient compensation acreage were 
available, we do not believe that impacts of this scale and 
concentration could be effectively compensated for to avoid causing or 
contributing to significant degradation (40 CFR 230.10(c)), given that 
reliance on willing sellers would likely result in a noncontiguous 
patchwork of fragmented compensation sites that cannot deliver the 
ecological benefits predicted by the FSEIS. We also believe that the 
project fails to include all appropriate and practicable steps to 
minimize and compensate for the project's adverse impacts on the 
aquatic ecosystem as required by 40 CFR 230.10(d).
    The section 404(b)(1) guidelines prohibit discharges that would 
cause or contribute to significant degradation. As previously 
discussed, we believe this project would cause or contribute to 
significant degradation. If the project is going to rely on 
compensatory mitigation to reduce impacts to an acceptable level, there 
must be a very robust and detailed mitigation plan which would inform 
whether in fact the impacts could reliably be reduced to avoid 
significantly degrading the Nation's waters. These plans should include 
a number of critical details regarding the mitigation project(s) 
including: clearly articulated project goals and objectives; project 
site selection criteria; site protection instruments (e.g., 
conservation easements); detailed quantitative and qualitative baseline 
information describing both the impact and compensation sites; a 
detailed discussion of the mitigation project's credit determination 
methodology and results; a maintenance plan; ecological performance 
standards used to evaluate the degree to which the compensation 
projects are replacing lost functions and area; detailed monitoring 
requirements; a long-term management plan describing necessary long-
term stewardship of the compensation sites and who is responsible for 
performing this stewardship; an adaptive management plan; and financial 
assurances to ensure project construction, implementation, and long-
term management.
    Another critical element of these plans is the site specific 
mitigation work plans. These plans include detailed written 
specifications and work descriptions for the compensatory mitigation 
project, including, but not limited to: geographic boundaries of the 
project; construction methods, timing, and sequence; source(s) of 
water, including connections to existing waters and uplands; methods 
for establishing the desired plant community; plans to control invasive 
plant species; the proposed grading plan, including elevations and 
slopes of the substrate;

[[Page 14818]]

soil management; and erosion control measures.
    Despite the extensive anticipated environmental impacts associated 
with the proposed project, no specific compensation project sites have 
been identified or secured. Thus, the mitigation plan included in the 
FSEIS lacks most of the aforementioned details. In particular, it lacks 
accurate information regarding baseline conditions at compensation 
sites, as well as substantiated information regarding potential 
environmental benefits likely to accrue at these sites if reforestation 
activities are successfully implemented. Without these details it is 
not possible to determine that the potential adverse environmental 
impacts of a project would be successfully minimized and compensated 
for to avoid significantly degrading the Nation's waters.
    What information is included in the FSEIS describing compensatory 
mitigation raises more concerns. The Corps only promises that 10,662 
acres of compensatory mitigation will take place prior to initiating 
operation of the pumps and notes that this minimum may not be located 
in the target area or even the greater Yazoo-Mississippi Delta, raising 
significant concerns that important wetland functions will not be 
replaced in the watershed. The FSEIS indicates that no requirements 
will be included to implement hydrological modifications or to 
otherwise ensure that the compensation projects will result in fully 
functioning wetland systems. This is of particular concern since the 
Corps envisions mitigation projects being located in areas whose 
hydrology will be impacted by the proposed pumping station. The 
conservation easements used to provide long-term site protection 
described in the FSEIS (if such sites can be found) will not require 
landowners to ensure that sites are or will retain wetland 
characteristics and will allow potentially ecologically disruptive 
silvicultural practices in these areas. Additionally, the monitoring 
provisions described in the FSEIS entail only initial visual 
inspections in the early years of project implementation followed by 
remote sensing techniques in later years. These are inadequate and are 
one of many weaknesses in the mitigation plan that make it impossible 
to conclude that impacts will be reduced permanently below the 
threshold of significant degradation.

D. Uncertainty of the Proposed Reforestation

    Consistent with our comments regarding the proposed compensatory 
mitigation, EPA believes the Corps does not provide effective 
assurances regarding the project's primary nonstructural component--the 
proposed reforestation of up to 40,571 acres of cleared wetlands (i.e., 
up to 55,600 acres less the 10,662 acres the Corps proposes to use as 
compensation for this project and the 4,367 acres it proposes to use as 
compensation for impacts associated with already implemented aspects of 
related projects) through the purchase of conservation easements from 
willing sellers. Reforestation sites have not been specifically 
identified in the FSEIS and, as with the compensatory mitigation, there 
do not appear to be enough acres of cleared wetlands with the 
appropriate hydrology and soils in the target area to meet this goal. 
Even if there were enough potential wetland reforestation acres, 
reliance on willing sellers does not provide effective assurance that 
the acreage proposed (up to 40,571 acres) will ultimately be made 
available for the reforestation effort. The reforestation component 
also suffers from the same technical problems associated with the 
compensatory mitigation plan in that it would likely result in a 
fragmented patchwork of reforestation sites with limited benefits. In 
addition to logistical and technical issues, the management of the 
reforestation lands (e.g., ensuring the implementation and success of 
planting efforts, providing long-term stewardship), the restoration of 
wetland hydrology, the replacement of temporal losses incurred before 
replanted trees become fully functional bottomland hardwood forested 
wetlands (hardwoods typically require a minimum of 60-70 years before 
they are mature), and the continuation of silvicultural practices in 
the reforestation areas are also major uncertainties. In light of these 
uncertainties, the environmental benefits suggested by the FSEIS to 
accrue from the proposed reforestation have not been substantiated.

E. Project Alternatives

    EPA believes, based on the record to date, that the Corps has not 
sufficiently considered potential alternatives that would avoid and 
minimize the proposed project's significant adverse impacts to aquatic 
resources pursuant to 40 CFR 230.10(a). Specifically, we believe that 
an alternative may be available that would provide a less 
environmentally damaging and more sustainable approach to floodplain 
management in the Yazoo Backwater Area. Such an alternative might 
incorporate, among other actions: reforestation of farmlands in the 
floodplain, relocation or flood proofing of flood-prone structures, 
conservation easements, localized flood protection structures including 
pumps, and expansion of insurance programs to compensate for economic 
losses from flooding.
    While EPA believes that the nature and extent of the environmental 
impacts associated with the structural proposal are significant, 
further evaluation of nonstructural actions could produce a cost-
effective solution with significantly fewer adverse environmental 
impacts than the proposed project, consistent with the Guidelines. We 
acknowledge that such a solution would likely require participation by 
multiple federal and state agencies, private industry, and non-
governmental organizations, and may necessitate additional 
Congressional authorization. However, a primarily nonstructural 
approach could ultimately provide a better balance of Federal 
objectives for addressing the needs of the Yazoo Backwater Area 
community for flood reduction and wetlands protection.

F. Recreation

    As previously noted, a 404(c) determination can be based on 
unacceptable adverse effects on recreational areas. Significant, 
seasonally-inundated public lands are located in the Yazoo Backwater 
Area including: (a) The Delta National Forest (61,800 acres); (b) the 
Yazoo National Wildlife Refuge Complex (including the Yazoo (13,000 
acres), Holt Collier (1,400 acres), Theodore Roosevelt (4,000 acres), 
and part of Panther Swamp (14,000 acres) refuges); (c) Twin Oaks 
Mitigation Area (5,675 acres); (d) Mahanna Mitigation Area (12,675 
acres); and (e) Lake George Wildlife Management Area (8,383 acres). The 
FSEIS acknowledges these lands as significant resources (FSEIS, page 
90) however it does not evaluate how these resources and particularly 
their recreational values will be affected by the proposed project. In 
its January 18, 2008, detailed comments on the FSEIS, the FWS indicated 
that the proposed project will have unacceptable adverse effects on 
recreational areas in the Yazoo Backwater Area, including four National 
Wildlife Refuges mentioned above and other publicly-owned land in the 
project area. EPA is soliciting information about these and other 
recreational areas in the Yazoo Backwater Area, the use of these areas 
and how these areas would be impacted if the proposed pumping station 
is built.

V. Proposed Determination

    The Regional Administrator proposes to recommend that the discharge 
of

[[Page 14819]]

dredged or fill material in wetlands and other waters in Issaquena 
County, Mississippi be prohibited for the purpose of constructing the 
Yazoo Backwater Area Project's pumping station or any other pumping 
proposal in the Yazoo Backwater Area that would involve significant 
adverse impacts on waters of the United States. Based on current 
information, the Regional Administrator has reason to believe the Yazoo 
Backwater Area Project could result in unacceptable adverse impacts. 
Moreover, these impacts may be partly or entirely avoidable.
    This proposed determination is based on unacceptable adverse 
impacts to wildlife and fisheries pursuant to section 404(c). EPA has 
reason to believe the project would cause or contribute to significant 
degradation of waters of the United States and violate the section 
404(b)(1) guidelines. At a minimum, the construction and operation of 
the proposed pumps would degrade the critical functions and values of 
approximately 67,000 acres of nationally significant wetland resources 
in the Yazoo River Basin. Of this total, approximately 26,300 acres 
would be hydrologically modified to the extent that they would no 
longer be defined as wetlands and would lose CWA regulatory protection. 
The natural timing, frequency, and duration of water reaching the 
remaining approximately 40,700 acres of wetlands would be impacted by 
the proposed pumping, altering the wetlands' ecological characteristics 
and reducing their functions. EPA does not believe that impacts of this 
magnitude are consistent with the requirements of the CWA. Our concerns 
regarding this project are amplified because we believe the potential 
adverse impacts on wetlands (particularly those wetlands located within 
the 2-year floodplain) and associated fish and wildlife resources may 
be much greater than is estimated in the FSEIS. These impacts must also 
be viewed in the context of the significant cumulative losses across 
the 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 remnant 
bottomland forested wetlands.
    EPA does not believe the potential impacts of the project, as 
currently proposed, can be adequately mitigated to reduce the impacts 
to an acceptable level. Additionally, we do not believe that the 
environmental benefits suggested by the FSEIS to accrue from the 
project's nonstructural component (e.g., the reforestation of up to 
40,571 acres) have been substantiated. EPA supports the goal of 
providing improved flood protection for the residents of the 
Mississippi Delta; however, we believe that accomplishment of this 
vital objective can be fully consistent with ensuring effective 
protection for the area's valuable natural resources. In light of 
existing information, EPA believes that there are likely to be less 
environmentally damaging practicable alternatives to building the 
proposed pumping station.

VI. Other Considerations

    Like the Corps, EPA has met with local community residents and 
listened to their hope and belief that the Yazoo Backwater Area Project 
will protect their homes against major floods, like the one in 1973. 
The community residents we met expressed a strong belief that by making 
the area less prone to flooding, the project will bring economic 
development, jobs, and a return of residents to the area. EPA 
recognizes the importance of improved flood protection for the people 
living and working in the project area, which includes low-income and 
minority populations, and we appreciate that the Corps responded to 
DSEIS follow-up discussions on environmental justice (EJ) by preparing 
an EJ analysis pursuant to Executive Order 12898.
    The Corps' EJ analysis generally discusses the potential flood 
protection and economic development that could accrue from the project 
within communities with potential EJ concerns. However, it has not 
demonstrated specifically which surrounding communities will be 
protected and which will remain subject to flooding after the project 
is completed, and whether they will be protected against 1-year, 2-
year, or 100-year floods. The FSEIS does not provide flood risk maps 
that show the location of residences and habitable structures within 
the potentially affected communities. Furthermore, EPA does not believe 
the Corps has fully analyzed the impact of this project on potential 
economic development in the EJ community.
    Under Executive Order 12898, the Corps should have also considered 
the project's potential effects on subsistence fishers and hunters who 
could be disproportionately impacted by the operation of the pumps. The 
FSEIS does not address whether the project would adversely impact 
populations that depend on subsistence fishing or hunting. We are 
soliciting information about these and other potential impacts on local 
communities if the proposed pumping station is built.
    Although EPA's proposed section 404(c) determination would prohibit 
the construction of the pumps as proposed, as mentioned previously, EPA 
continues to believe there are alternatives that could provide flood 
protection and other benefits to all communities within the Yazoo 
Backwater Area. We support working with the residents of the Delta and 
our federal partners to propose and evaluate alternatives that are 
responsive to local conditions, needs, and preferences.

VII. Solicitation of Comments

    EPA is today soliciting comments on all issues discussed in this 
notice. In particular, we request information on the likely adverse 
impacts to fish and wildlife values of all of the wetlands, streams, 
and other waters in all areas which would be affected by the 
construction and operation of the pumping station proposed in the Yazoo 
Backwater Area Project. We also seek information pertaining to flora, 
fauna, and hydrology of the Yazoo Backwater Area. All relevant data, 
studies, knowledge of studies, or informal observations are 
appropriate. Information on species or communities of regional or 
statewide importance would be especially useful.
    While the anticipated unacceptable adverse effects on fisheries and 
wildlife serves as EPA's main basis for this proposed 404(c) 
determination, EPA has additional concerns with the proposed project, 
including water quality impacts, alternatives, mitigation, and impacts 
on recreation. Therefore, EPA also solicits comments on the following 
aspects of the project and corrective actions that could be taken to 
reduce the adverse impact of the discharge:
    (1) The potential for additional violations of State Water Quality 
Standards to occur in the Yazoo River Basin if the pumping station is 
built;
    (2) Additional information about low-income and minority 
populations in the Yazoo Backwater Area and, in the context of 
Executive Order 12898, the disproportionately high adverse human health 
or environmental effects, if any, on these populations if EPA makes a 
final determination to prohibit or restrict the use of certain waters 
in the Yazoo River Basin as disposal sites for dredged or fill material 
in connection with the project;
    (3) Additional information about fisheries in the Yazoo River Basin 
and the impacts to fisheries if the pumping station is built and 
operated;
    (4) Additional information on the wildlife species which would be 
affected by changes in the aquatic

[[Page 14820]]

ecosystem if the pumping station is built and operated;
    (5) Additional information on municipal and other water supplies in 
the Yazoo River Basin and how the quantity and quality of those water 
supplies could be affected by the operation of the proposed pumping 
station;
    (6) The potential for impacts to wetlands and their associated 
functions in the Yazoo River Basin if the pumping station is built and 
operated;
    (7) Information about recreational uses of the area and how they 
would be impacted if the pumping station is built and operated;
    (8) Additional information on the availability of less 
environmentally damaging practicable alternatives to satisfy flooding 
issues, taking into account cost, technology, and logistics and 
including other nonstructural alternatives;
    (9) Information on the potential for mitigation to replace the 
functions and services provided by the 67,000 acres of wetlands that 
are, at a minimum, at risk in the Yazoo Backwater Area;
    (10) Whether the discharge should be permanently prohibited, 
allowed as proposed by the Corps, or restricted in time, size or other 
manner; and
    (11) Potential impacts and benefits of alternatives, both 
structural and nonstructural.

The record will remain open for comments until May 5, 2008. All 
comments will be fully considered in reaching a decision to either 
withdraw the proposed determination or forward to EPA Headquarters a 
recommended determination to prohibit or restrict the discharge of 
dredged or fill material in wetlands and other waters in the Yazoo 
Backwater Area in connection with the construction of the Yazoo 
Backwater Area Project's pumping station or any other pumping proposal 
in the Yazoo Backwater Area that would involve significant adverse 
impacts on waters of the United States.

Lawrence E. Starfield,
Regional Decision Officer.
[FR Doc. E8-5401 Filed 3-18-08; 8:45 am]

BILLING CODE 6560-50-P
