COALITION TO RESTORE COASTAL LOUISIANA
ENVIRONMENTAL DEFENSE FUND
LAKE PONTCHARTRAIN BASIN FOUNDATION
LOUISIANA WILDLIFE FEDERATION
NATIONAL AUDUBON SOCIETY
NATIONAL WILDLIFE FEDERATION
February 4, 2013
Karl Morgan, Administrator – Permits & Mitigation Division
State of Louisiana
Department of Natural Resources, Office of Coastal Management
P.O. Box 44487
Baton Rouge, Louisiana 70804-4487
Chris Seifert, OCM Reviewer
State of Louisiana
Department of Natural Resources, Office of Coastal Management
P.O. Box 44487
Baton Rouge, Louisiana 70804-4487
Re: Culverted Road Repair, Plaquemines Parish, LA, Sundown Energy
CUP Number P20111629
Mr. Seifert:
We have reviewed the January 10, 2013 Public Notice concerning the application of
Sundown Energy/Eland to construct a so-called culverted road repair (the “Proposed Project”)
in a navigable water of the United States, namely, the Mardi Gras Pass (“MGP”). Your office
should deny the requested Coastal Use Permit (“CUP”) for the Proposed Project. As detailed in
this comment letter below, the Proposed Project in its current formulation violates applicable
portions of the Coastal Resources Management Act of 1978 (“CRM Act or Act”). In the
alternative, we request that a public hearing be held.
We previously filed comments, on January 22, 2013, in response to a Joint Public Notice
issued on December 24, 2012 by the U.S. Army Corps of Engineers and the State of Louisiana
(“Joint Public Notice”). As the factual issues remain the same, we attach this January 22
comment letter, and incorporate and reference those factual statements. Briefly, this earlier
comment notes that the MGP is an active and evolving distributary of the Mississippi River, and
would be inhibited by the Proposed Project in its current form. Granting a CUP for the
Proposed Project would not comply with salient provisions of and regulations under the CRM
Act, as detailed below in view of the indirect alteration of sediment distribution and fish wetland
habitat that would likely occur and the availability of alternative designs that would not require
near-total blockage of the Mardi Gras Pass.
The CUP Should be Denied. The CRM Act, Section 214.22 asserts that it is the
State’s public policy to “protect, develop, and, where feasible, restore or enhance the resources
of the state’s coastal zone.” Applicable promulgated regulations expand upon this broad public
policy. La. Admin. Code tit. 43, 701 states that “it is the policy of the coastal resources program
to avoid the following adverse impacts. To this end, all uses and activities shall be planned, sited
designed, constructed, operated, and maintained to avoid to the maximum extent practicable
significant:…reductions in the natural supply of sediment and nutrients to the coastal system by
alterations of freshwater flow…detrimental changes in littoral and sediment transport
processes…reductions or blockage of water flow or natural circulation patterns within or into an
estuarine system or a wetland forest…reduction in the long term biological productivity of the
coastal ecosystem.”
The Proposed Project, in its current form, would create massive adverse indirect impacts
in the MGP of the sort described above as described in detail in the attached January 22 letter,
and thus the State must avoid, to the maximum extent practicable, its implementation. A
showing of maximum extent practicable is detailed in La. Admin. Code tit. 43, 701 H.1, which
states that the otherwise prohibited use is only allowed if “the benefits resulting from the
proposed use would clearly outweigh the adverse impacts resulting from noncompliance with
the modified standard and there are no feasible and practical alternative locations, methods,
and practices for the use that are in compliance with the modified standard and: a. significant
public benefits will result from the use; or b. the use would serve important regional, state, or
national interests, including the national interest in resources and the siting of facilities in the
coastal zone identified in the coastal resources program, or; c. the use is coastal water
dependent.”
It is not clear that the proposed use would clearly outweigh the adverse impact of
effectively closing the MGP. Moreover, feasible and practicable alternatives exist to siting the
Proposed Project in the MGP as our attached January 22 comment letter details. Likewise, the
Proposed Project does not contain a public benefit, nor does it serve a regional, state, or national
interest. It is also not water dependent in the sense that it requires filling the water body, as the
roadway could be constructed above the MGP by bridging it or, if necessary, constructing it on
pilings.
La. Admin. Code tit. 43, 705 (guidelines for linear facilities) and La. Admin. Code tit. 43,
719 (guidelines for oil, gas, and other mineral activities) provide further support for denying the
CUP. La. Admin. Code tit. 43, 705(A) states that “linear use alignments shall be planned to
avoid adverse impacts on areas of high biological productivity or irreplaceable resource areas.”
La. Admin. Code tit. 43, 705(F) asserts that “linear facilities and alignments shall be, to the
maximum extent practicable, designed and constructed to permit multiple uses consistent with
the nature of the facility.” La. Admin. Code tit. 43, 705(I) states that “linear facilities shall be
planned, designed, located, and built using the best practical techniques to minimize disruption
of natural hydrologic and sediment transport patterns, sheet flow, and water quality and to
minimize adverse impacts on wetlands.” These guidelines support a redesign of the roadway
project that avoids filling and blocking of the MGP. As the technical documentation submitted
by John Lopez, PhD, on behalf of the Lake Pontchartrain Basin Foundation points out, the flow
capacity of the four proposed culverts would be only a very modest fraction of the unimpeded
flow of the water body.
La. Admin. Code tit. 43, 719(D) states that “mineral exploration and production facilities
shall be to the maximum extent practicable designed, constructed, and maintained in such a
manner to maintain natural water flow regimes, avoid blocking surface drainage, and avoid
erosion.” La. Admin. Code tit. 43, 719(E) provides that “access routes to mineral exploration,
production, and refining sites shall be designed and aligned so as to avoid adverse impacts on
critical wildlife and vegetation areas to the maximum extent practicable.” All of the extensive
wetlands that an unimpeded MGP, with its evolving capacity to transport sediment, would
benefit constitute “critical wildlife and vegetation areas” that the road fill project as currently
designed would severely impact. The applicant has provided no evidence that it has pursued a
design or other alternative that would avoid these impacts to the maximum extent practicable.
Including four culvert in the road fill design with very limited capacity relative to unimpeded
flow as the MGP evolves does not begin to constitute a demonstration of avoiding such impacts
to the maximum extent practicable.
These sections, when applied to the factual background, provided in detail in the
attached January 22, 2013 comment letter, in addition to the submittals from John Lopez, Phd,,
support denying the CUP. The Proposed Project would create an adverse impact upon MGP,
with the linear facility not allowing multiple uses of the area to the maximum extent practicable.
The Proposed Project would also severely disrupt the natural hydrologic and sediment transport
patterns of the MGP. It would, furthermore, not maintain, but rather, disrupt, “natural water
flow” in the area, and create adverse impacts upon the vegetation areas.
If the CUP is not Denied, a Public Hearing Must be Held. La. Admin. Code tit.
43, 723(C)(6)(a) states that “a public hearing may be held in connection with the consideration
of an application for a new permit and when it is proposed that an existing permit be modified
or revoked.” La. Admin. Code tit. 43, 723(C)(6)(c) states that a public hearing is appropriate
when “there is significant public opposition to a proposed use, or there have been requests from
legislators or from local governments or other local authorities, or in controversial cases
involving significant…environmental issues.”
The Proposed Project, in its current formulation, raises serious environmental issues.
Furthermore, any precedent set, which would indicate that a developing and active distributary
of the Mississippi River can be closed, certainly raises the controversy of this case.
Conclusion. For the above reasons, we request that the State deny the CUP. If the
CUP is not denied, we request a Public Hearing be held.
Sincerely,
Environmental Defense Fund
James T. B. Tripp, Senior Counsel
jtripp@edf.org
212-616-1247
Angelina Freeman, PhD, Senior Scientist
afreeman@edf.org
202-572-3373
Lake Pontchartrain Basin Foundation
John Lopez, PhD
johnlopez@pobox.com
504-836-2215
National Audubon Society
Douglas Meffert, Executive Director/Vice
President, Audubon Louisiana
dmeffert@audubon.org
Paul Kemp, PhD
pkemp@audubon.org
225-768-0820 x 204 and 201
National Wildlife Federation
David P. Muth, Program Director
MSR Delta Restoration
muthd@nwf.org
504-348-3518
Steven Peyronnin, Executive Director
Coalition to Restore Coastal Louisiana
stevenp@crcl.org
225-767-4181
Rebecca Triche, Executive Director
Chris Macaluso, Coastal Outreach
Coordinator
Louisiana Wildlife Federation
Rebecca@lawwildlifefed.org
chris@lawwildlifefed.org
cc.
Denise.D. Frederick, MVN, District Counsel, Denise.D.Frederick@usace.army.mil
Daryl G. Glorioso, MVN, Senior Counsel, Daryl.G.Glorioso@usace.army.mil
Troy G. Constance, Chief, Planning Division, Troy.G.Constance@usace.army.mil
Mark R. Wingate, MVN, Chief Projects Branch, Mark.R.Wingate@usace.army.mil
Major General John W. Peabody, MVC Commander
T. Stephen Gambrell, Executive Director, MRC, Timothy.Gambrell@usace.army.mil
Charles E. Shadie, MVD, Charles.E.Shadie@usace.army.mil
Alvin B. Lee, Director of Regional Business, MVD, Alvin.B.Lee2@usace.army.mil
G (Betsy) Rogers Sloan, Division Counsel, MVD, G. Rogers.Sloan@usace.army.mil
William K. Honker, EPA WQ Protection Division, honker.william@epamail.epa.gov;
John Ettinger, ettinger.john@epa.gov
Sharon Parrish, EPA Region 6 Wetlands Section, parrish.Sharon@epa.gov;
Raul Gutierrez, EPA Region 6 Wetlands Section, gutierrez.raul@epa.gov;
Clay Miller, Team Leader, EPA Wetlands Section, DC, miller.clay@epa.gov;
Timothy Landers, EPA Wetlands Division, DC, landers.timothy@epa.gov;
Jeffrey Weller, Field Supervisor, USFWS, jeff_weller@fws.gov
David Walther, USFWS, Lafeyette LA, David_Walther@fws.gov
Patti Holland, USFWS, Lafayette LA, Patti_Holland@fws.gov;
Christopher Doley, Director, NOAA Restoration Center, chris.doley@noaa.gov
Richard Hartman, NMFS, richard.hartman@noaa.gov
Kevin Norton, State Conservation, NRCS, USDA, kevin.norton@la.usda.gov
Garret Graves, Chair, LA CPRA, garret@la.gov
Kyle Graham, LA OCPR, kyle.graham@la.gov
Jerome Zeringue, Executive Director, LA OCPR, jerome.zeringue@la.gov
Kirk Rhinehart, Director of Planning, LA OCPR, kirk.rhinehart@la.gov
Bren Haase, LA OCPR, bren.haase@la.gov
Kyle Balkum, LA Department of Wildlife and Fisheries, kbalkum@wlf.louisiana.gov
Jim Holcombe, LA DNR, jim.holcombe@la.gov
cdufrechou@gnoec.org
COALITION TO RESTORE COASTAL LOUISIANA
ENVIRONMENTAL DEFENSE FUND
LAKE PONTCHARTRAIN BASIN FOUNDATION
NATIONAL AUDUBON SOCIETY
NATIONAL WILDLIFE FEDERATION
January 22, 2013
Colonel Edward R. Fleming, District Commander
Thomas A. Holden, Jr., Deputy District Engineer for Project Management
Martin S. Mayer, Chief Regulatory Branch
Michael V. Farabee, Chief, Eastern Evaluation Section, Regulatory Branch
Melissa Ellis, Project Manager
Department of the Army New Orleans District, Corps of Engineers
P.O. Box 60267
New Orleans, Louisiana 70160-0267
Re: Culverted Road Repair, Plaquemines Parish, LA, Sundown Energy
MVN-2011-2607-EQ
Ladies and Gentlemen:
We have reviewed the December 24, 2012 Joint Public Notice concerning the application
of Sundown Energy/Eland to construct a so-called culverted road repair in a navigable water of
the United States, namely, the Mardi Gras Pass (“MGP”). The Corps should deny the requested
permit for the road project as described. More specifically, we request that:
 The Corps withdraw the December 24, 2012 Joint Public Notice since it does not comply
with the Corps’ own regulations and, when appropriate, reissue a proper public notice,
 The Corps prepare a full environmental assessment that, in our view, should and will
lead to a decision to prepare a comprehensive environmental impact statement that
reasonably describes the context of the road project, its indirect as well as direct impacts
and alternatives,
 The Corps comply with the requirements of Section 404 of the Clean Water Act,
 The Corps make a navigability determination as requested in our letter of June 24, 2012
to which we have not yet received a substantive response,
 The Corps properly apply both Sections 9 and 10 of the 1899 Rivers and Harbors Act to
this proposed action,
 The Corps provide us with all of the monitoring data and related analyses pertaining to
“the conditions of the crevasse” to which Colonel Fleming refers in his letter to us of July
19, 2012.
We filed preliminary comments on January 4, as corrected on January 7, 2013. Our
comments supplement the June 29, 2012 letter that we sent to Colonel Fleming, General
Peabody and others and resubmitted to you as part of our comments in this proceeding. That
letter requested a formal determination of the navigability of Mardi Gras Pass and discussed the
legal implications of such a determination. While that letter described the road project as
presented in the PGP issued in January 2012, the change in design to include four culverts of
very modest capacity does not alter the discussion of the legal consequences of the project under
Sections 9 and 10 of the 1899 Rivers and Harbors Act. The redesigned road project still
constitutes a complete blockage of the MGP for navigability purposes and a near-total
disruption of physical sediment transport and ecological processes. We therefore reiterate our
request that processing of this permit application be held in abeyance pending a formal
determination of navigability.
We also reference the various reports that John Lopez, PhD on behalf of the Lake
Pontchartrain Basin Foundation and Paul Kemp, PhD are submitting directly with pertinent
data concerning the dimensions, capacity, flow and evolving character of MGP and the changing
conditions of the lower reaches of the Mississippi River that affect the MGP and conversely, as
well as comments that Maura Wood of the National Wildlife Federation is submitting. These
reports and comments provide technical support for the legal analysis set forth in this letter.
We have, in addition, reviewed comments from three federal agencies, EPA,
NOAA/NMFS and the USFWS dated, respectively, January 4, January 8 and January 8, 2013.
In general, we concur with those comments, and our technical and legal comments provide
support for their requests.
Public Notice defect. Initially, we consider the December 24, 2012 Public Notice to be
defective in terms of the requirements of 33 CFR 323.5. As a starter, it does not even identify or
name the water body that the road project will impact, indeed, devastate. More specifically, the
public notice “must…include sufficient information to give a clear understanding of the nature
and magnitude of the activity to generate meaningful comment.” It must include the “location
of the proposed activity.” The notice must also include “a plan and elevation drawing showing
the general and specific site location and character of all proposed activities, including the size
relationship of the proposed structures to the size of the impacted waterway and depth of water
in the area.”
While public notice provides latitude and longitude information about the vicinity of an
“unimproved road in the vicinity of Pointe a La Hache and Nestor, Plaquemines Parish”, and it
provides virtually no useful information about the water body in question. While the
accompanying drawings provide information about the proposed dimensions of the road fill,
they, like the Public Notice itself, do not provide the required information about “the size of the
impacted waterway and depth of water in the area” and, as a consequence, does not provide
pertinent information about “the size relationship of the proposed structures to the size of the
impacted waterway and depth of water in the area”.
More important, the Public Notice is so devoid of any useful information about the
affected water body and its function as an active and evolving distributary of the Mississippi
River that it lacks “sufficient information to give a clear understanding of the nature and
magnitude of the activity to generate meaningful comments.” We refer to the letter from Maura
Wood of the National Wildlife Federation, a noted expert on public engagement. Our comments
are meaningful, just as those from EPA, NOAA/NMFS and the FWS, because we have
knowledge about the physical and ecological setting of the proposed activity and characteristics
of the affected water body. The fact that federal resource agencies and environmental
organizations dedicated to sound management of the Mississippi River and restoration of its
Delta have that information should not and does not remove the Corps’ fundamental obligation
to provide information to the public that can generate “meaningful comment”.
The fact that the Public Notice does not employ the name of the water body, the Mardi
Gras Pass, or indeed any name, appears to be a concerted effort by the Corps to rob the newest
distributary of the Mississippi River of any cultural identification, personality or physical and
ecological significance. It is as though it does not exist, destined to emplacement in the Tomb of
the Unknown River. Thus, the Public Notice suggests, if the water body does not exist,
desecrating it will make no difference to the physical and ecological dynamics of the lower
reaches of the Mississippi River, its Delta and its passes and distributaries.
We therefore amend our request for a formal determination of navigability to include a
request for giving the water body in question a name. We request that that name be the Mardi
Gras Pass, but if the Corps through appropriate processes selects another name, that is a step
forward.
NEPA requirements – Context. The whole purpose of the National Environmental
Policy Act (“NEPA”) is for a federal agency taking action to disclose the likely impacts of that
action and, if the impacts are significant, to disclose consideration of alternatives that could
minimize or mitigate those impacts. The CEQ NEPA regulations and the Corps’ own regulations
provide for levels of disclosure and impact assessment depending on the nature of the project
and its context.
The significance of the impacts of any action depends both on the nature of the action
and the setting or context in which it occurs. The context or pertinent background conditions
can be very narrowly or broadly described. The responsibility of the Corps under its NEPA
regulations is to give some level of definition to the “context”, including “the affected region”, as
33 CRF 230.7 provides, that is relevant to an assessment of the impacts of the proposed action.
In the case of the proposed road project, one context is the immediate area of impact of
the footprint of the project. In terms of discussing the project’s impact on fishery habitat, the
Public Notice states that the road fill “would result in the destruction or alteration of 0.3 acres of
EFH…” Presumably, that means that the fill would occupy that amount of water bottom of the
water body in question. The Public Notice suggests that the loss of 0.3 acres of water bottom is
not significant such that further assessment, pending comments from NMFS, is not necessary.
However, the Corps NEPA regulations also require consideration of “indirect” impacts. Indirect
effects are those “which are caused by the action and are later in time or farther removed in
distance, but still reasonably foreseeable…indirect effects may include…changes in… water and
other natural systems, including ecosystems.” 40 CRF 1508.8.
If one were to propose building a road on fill across the Mississippi River with some
culverts at, say, River Mile 60, the Public Notice could point out that the proposed project would
destroy or alter some limited number of acres of water bottom, say, 20 acres. That by itself
might not sound very significant given the number of acres of water bottom in the area, but no
one would think that the impact of such a project would be limited to its physical footprint on
the bottom. Instead, the impact would obviously extend to the larger implications of the project
for Mississippi River physical and ecological processes, commerce and flood control. A public
notice that only mentioned the footprint impact would not only be unlikely to generate
“meaningful public comment” but to mislead the public about the nature of the project and the
proper context in which it should be assessed. On the other hand, with a proposal to place road
fill across a dead-end, eutrophic canal or creek largely devoid of life, a description in the public
notice of the major impact as being limited primarily to the physical footprint of the project
might conceivably be reasonable.
Thus, the reasonableness and fairness of the Corps’ December 24, 2012 Public Notice
may depend on where the water body in question falls in the spectrum between the Lower
Mississippi River and a dead-end canal. To answer that question, one has to look at the very
characteristics of the water body in question and any larger physical or ecological context in
which it plays a relevant role. The Public Notice totally fails to do so. Its implied message is that
there is nothing worthwhile physically and ecologically about the water body in question and
that blocking it with some culverts of very limited capacity will have no consequences upstream
or downstream worth mentioning. In addition to providing no name for the water body, it
provides no information about these characteristics at all. We are left just with longitudinal and
latitudinal coordinates. This is trivializing this water body in the context of the Bohemia
Spillway portion of the Mississippi River Delta and in the larger context of its function as a
distributary of the lower Mississippi River.
While the comments from EPA, NMFS and FWS would not explicitly question the utility
of the public notice, they do focus, not on the 0.3 acre physical footprint impact, but on the
indirect impacts. They describe the role of this water body as a flood outlet that has implications
for the larger Mississippi River flood control system as well as the immediate neighborhood, as a
conveyor of sediment to wetlands between this section of the River and Lower Breton Sound,
and as a distributary connection between the River and tidally influenced wetlands in Breton
Sound. In terms of impacts, these agencies note the likely consequence for the fill even with the
culverts in place on water and sediment flows and sedimentation. NMFS comments that, if the
project were to reduce significantly the quantity of sediment being delivered to adjacent
wetlands as is likely, “project implementation would result in the loss of an unquantifiable
amount of wetlands in the project vicinity”.
The federal agencies make these assessments because they have knowledge, not
disclosed in the public notice, about the basic and evolving characteristics of this water body.
That knowledge causes them to look at the likely “indirect” impact of the project based on the
“context” in which the proposed road project finds itself.
John Lopez, PhD and Paul Kemp, PhD, are furnishing detailed data and analyses that
support the federal agencies’ findings about the credible context of this project. Dr. Lopez’s
reports provide detailed information about the physical characteristics of this Pass as a
distributary of the Mississippi River, including dimensions, evolving capacity and some
sediment data. Dr. Kemp’s submittal places the birth and evolution of this water body in the
larger context of physical changes underway in the lower Mississippi River. Thus, the de facto
closing off of this new distributary has implications for the River itself. Further, this water body
is enlarging the capacity of the Bohemia Spillway to convey flood waters and function as a flood
relief outlet, as the EPA letter states.
Based on a fair review of this technical information, we anticipate that the Corps will
conclude that the public notice does not discuss the relevant contexts for an assessment of the
impacts of the road project and, absent those contexts, does not properly evaluate the likely
physical and ecological impacts of this project on the Lower Breton Sound delta, the water body
itself and the Mississippi River. A proper evaluation of this information would underscore the
validity of the comments of the federal agencies and the need for the Corps to conduct additional
hydrodynamic and other analyses necessary for a reasonable determination of the significance
of the likely impact of this project. We also request that the Corps advise us forthwith if it
disagrees with any of the technical information that we are providing, and, if so, the evidentiary
basis for that disagreement.
NEPA requirements – significance of impacts. If one looks at the likely indirect
impacts of the proposed road project in the relevant contexts, they are clearly highly significant.
If one looks only at the immediate and direct effects that “are caused by the action and occur at
the same time and place” (40 CRF 1508.8 and 33 CFR 230.4 incorporating the CEQ definitions),
then they may not be considered significant. The Corps in its Public Notice has only considered
direct effects. It must also look at indirect or secondary effects (see, 40 CFR 230.,42(b): “When
disruptions in flow and circulation patterns occur, apparently minor loss of wetland acreage may
result in major losses through secondary impacts.”) As Yogi Bera said, “In order to see, you have
to look”.
An assessment of the indirect effects must begin with a proper comparison of the
capacity of MGP as it is and is likely to become with the restricted capacity of the four proposed
culverts. The hydraulic analysis provided by the applicant defines the existing condition as
simply the hypothetical flow through an obsolete and inoperable culvert structure, and does not
include the actual flow through Mardi Gras pass as the “existing conditions”. The maximum
flow the estimated by the applicant for “existing conditions” is 771 cfs, whereas in 2012 the flow
was as great as 2,400 cfs, as John Lopez’s submittal points out.
The comment letters from EPA, the FWS and NMFS describe a range of very significant
indirect effects of the near-complete blockage of the MGP. Those indirect effects become even
more pronounced when they are assessed against the evolving conditions of the MGP, one of the
pertinent regional contexts. They include significant alterations in water flows, the capacity of
the Pass to convey sediment, the distribution of sediment over time as storms re-mobilize
sediments that have been deposited temporarily in canals or other open water bodies, the
amount of wetland acreage in the region that will be beneficially affected by these sediments,
wetland acreage restored, and fish and wildlife habitat, including EFH. The materials that Dr.
John Lopez and Dr. Paul Kemp have submitted provide extensive data on and analysis of these
affected phenomena. Dr. Lopez, furthermore, points to turbidity data that suggests that the
MGP may be at a reasonably sediment-rich location in the Mississippi River. These data
reinforce the claim that this road project will adversely impact regional wetlands. Perhaps the
Corps has additional turbidity or other forms of sediment data if it has been monitoring “the
conditions of the crevasse”, as Colonel Fleming asserts in his July 19, 2012 letter.
The reports of Dr. Kemp and Dr. Lopez, describe, furthermore, a larger context that
includes the lowermost reaches of the Mississippi River. If the MGP is at a sediment-rich site, as
Dr. Lopez suggests, maintaining the Pass in its natural condition as it evolves may have
downstream beneficial navigation effects. In addition, as Dr. Kemp points out, the MGP as it
expands its capacity in response to high water events may improve the flood water outlet
capacity of the Bohemia Spillway. This may reasonably be expected to improve the hydraulic
efficiency of the lower River and result in lower flood stages relative to discharge at upstream
urban levees, including those in the greater New Orleans metropolitan area.
Colonel Fleming in his July 24, 2012 letter refers to the Corps’ efforts to balance “the
competing interests of Mississippi River resources.” In addition to its NEPA obligation to
develop a full, scientifically-grounded, assessment of the indirect impacts of the proposed road
project in the different context, this project provides the Corps with the very opportunity that
Colonel Fleming seeks, that is, to use effectively the data and analyses that we are providing
together with the additional investigations that the federal agencies and we request to assist in
that balancing and in the process provide support to the Hydro and Delta Management Study.
For these reasons, we request that the Corps prepare a proper environmental assessment
of all indirect effects of the proposed projects in the relevant MGP and lower Mississippi River
contexts with the expectation that it will proceed to scoping of a preparation of a full EIS.
NEPA and 404 requirements – alternatives. NEPA and the CEQ and Corps
regulations require consideration of reasonable alternatives where the impacts of the proposed
action are significant as they clearly are here. See, 40 CFR 1502.14. Suitable alternatives are
those that may reduce, minimize or avoid the impacts of the proposed action.
The purpose of the road is to provide the applicant with road access to “an existing oil
and gas production site along the LDB of the Mississippi River at approximately mile 42.5 AHP”,
according to the Public Notice. One would expect that access by reasonable alternative means
would be readily available given the plentitude of canals in the region as Dr. Lopez notes and the
proximity of the River itself. Further, since the Public Notice points out that the “applicant has
stated that it is not uncommon for the road to wash out in this vicinity during high water”, the
applicant itself is familiar with, has used, is using and will continue to use alternative means of
access by water. The road itself washed out during the 2011 flood, more than 18 months ago,
and the applicant has access to the site in question and has the requisite docking facilities to do
so. The Public Notice provides no hint that the inability of the applicant to gain access through
the rebuilt road constitutes an obstacle to the continued economic viability of its utilization of
this site. It would be hard for the applicant to do so with the price of oil in the range of $100 per
barrel.
In addition to continued access by water as an alternative, the federal agencies suggest
an investigation of other alternatives, including building a bridge over the MGP and increasing
culvert capacity. We do not consider the latter to be a useful alternative since even increased
culvert capacity would still materially restrict the flow of water and sediment with attendant
indirect effects, but we would be interested in reviewing the analysis that they suggest. Building
a bridge may be more expensive than constructing the road on fill with culverts. However, road
access does not require fill to accomplish its purposes. The Public Notice provides no data about
comparative costs, and we have seen none otherwise from the applicant. Any comparison of
costs of road fill and bridging would have to take into account the tendency “for the road to wash
out in this vicinity during high water”.
It is incumbent upon the applicant to demonstrate that alternatives that would avoid or
minimize indirect or secondary impacts on wetlands are not feasible. Based on these legal
requirements in both NEPA and Clean Water Act 404 regulations, we support the request of the
federal agencies that the Corps require the applicant “to conduct a thorough alternatives
analysis to determine if other alternatives to the proposed reconstruction of the road bed may be
feasible” (NMFS letter dated January 8, 2013 p. 2).
Conclusion. For these reasons, we reiterate our request that the Corps respond
affirmatively to the six bullets that we highlight in the opening paragraph of this letter.
Sincerely,
Environmental Defense Fund
James T. B. Tripp, Senior Counsel
jtripp@edf.org
212-616-1247
Angelina Freeman, PhD, Senior Scientist
afreeman@edf.org
202-572-3373
Lake Pontchartrain Basin Foundation
John Lopez, PhD
johnlopez@pobox.com
504-836-2215
National Audubon Society
Douglas Meffert, Executive Director/Vice
President, Audubon Louisiana
dmeffert@audubon.org
Paul Kemp, PhD
pkemp@audubon.org
225-768-0820 x 204 and 201
National Wildlife Federation
David P. Muth, Program Director
MSR Delta Restoration
muthd@nwf.org
504-348-3518
Steven Peyronnin, Executive Director
Coalition to Restore Coastal Louisiana
stevenp@crcl.org
225-767-4181
cc.
Denise.D. Frederick, MVN, District Counsel, Denise.D.Frederick@usace.army.mil
Daryl G. Glorioso, MVN, Senior Counsel, Daryl.G.Glorioso@usace.army.mil
Troy G. Constance, Chief, Planning Division, Troy.G.Constance@usace.army.mil
Mark R. Wingate, MVN, Chief Projects Branch, Mark.R.Wingate@usace.army.mil
Major General John W. Peabody, MVC Commander
T. Stephen Gambrell, Executive Director, MRC, Timothy.Gambrell@usace.army.mil
Charles E. Shadie, MVD, Charles.E.Shadie@usace.army.mil
Alvin B. Lee, Director of Regional Business, MVD, Alvin.B.Lee2@usace.army.mil
G (Betsy) Rogers Sloan, Division Counsel, MVD, G. Rogers.Sloan@usace.army.mil
William K. Honker, EPA WQ Protection Division, honker.william@epamail.epa.gov;
John Ettinger, ettinger.john@epa.gov
Sharon Parrish, EPA Region 6 Wetlands Section, parrish.Sharon@epa.gov;
Raul Gutierrez, EPA Region 6 Wetlands Section, gutierrez.raul@epa.gov;
Clay Miller, Team Leader, EPA Wetlands Section, DC, miller.clay@epa.gov;
Timothy Landers, EPA Wetlands Division, DC, landers.timothy@epa.gov;
Jeffrey Weller, Field Supervisor, USFWS, jeff_weller@fws.gov
David Walther, USFWS, Lafeyette LA, David_Walther@fws.gov
Patti Holland, USFWS, Lafayette LA, Patti_Holland@fws.gov;
Christopher Doley, Director, NOAA Restoration Center, chris.doley@noaa.gov
Richard Hartman, NMFS, richard.hartman@noaa.gov
Kevin Norton, State Conservation, NRCS, USDA, kevin.norton@la.usda.gov
Garret Graves, Chair, LA CPRA, garret@la.gov
Kyle Graham, LA OCPR, kyle.graham@la.gov
Jerome Zeringue, Executive Director, LA OCPR, jerome.zeringue@la.gov
Kirk Rhinehart, Director of Planning, LA OCPR, kirk.rhinehart@la.gov
Bren Haase, LA OCPR, bren.haase@la.gov
Kyle Balkum, LA Department of Wildlife and Fisheries, kbalkum@wlf.louisiana.gov
Jim Holcombe, LA DNR, jim.holcombe@la.gov
cdufrechou@gnoec.org