[Federal Register Volume 60, Number 59 (Tuesday, March 28, 1995)]
[Notices]
[Pages 15913-15920]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7590]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5179-6]
Russo Development Corporation Site, NJ; Proposed Amendment to
March 21, 1988, Clean Water Act Section 404(c) Final Determination
AGENCY: U.S. Environmental Protection Agency.
[[Page 15914]] ACTION: Notice of consideration of amendment of Section
404(c) final determination and request for comment.
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SUMMARY: Notice is hereby given that the Environmental Protection
Agency (EPA) is considering amendment of the total site prohibition
identified in EPA's March 21, 1988, Final Determination concerning the
Russo Development Corporation (Russo) site in Carlstadt, New Jersey,
pursuant to Section 404(c) of the Clean Water Act (CWA). EPA is
considering amendment of this Final Determination on the basis that
compensatory mitigation now proposed by Russo would satisfactorily
address the unacceptable adverse effects to wildlife described in the
March 21, 1988, document. This amendment would be done as a
prerequisite to Russo seeking CWA after-the-fact authorization for the
past discharge of fill material into the subject wetlands for the
purpose of constructing a warehouse complex, as well as authorization
for the future discharge of fill material into remaining wetlands for
additional development activities. This proposed action would revise
the Section 404(c) prohibition adopted in 1988 to a restriction on
discharges at the site based on Russo's meeting the compensatory
mitigation requirements specified in this document.
EPA's 1988 Final Determination in this case concerned a 57.5 acre
wetland in Carlstadt, New Jersey where Russo proposed to maintain 52.5
acres of unauthorized fill (of which 44 acres have been built upon) and
to fill the remaining five acres of wetland of a 13.5 acre parcel to
complete a warehouse complex. The Final Determination states that the
Russo site was/is very valuable to wildlife from a site specific and
cumulative standpoint and, therefore, that its values must be retained.
EPA also found that the compensatory mitigation proposed by Russo would
not replace those wildlife values that had been and were anticipated to
be lost. In the Final Determination, however, EPA indicated that this
prohibition could be reconsidered upon demonstration that the adverse
effects to wildlife have been satisfactorily addressed.
EPA is requesting comments on this proposed amendment of the Final
Determination's total site prohibition to a restriction that would
allow specification of the 13.5 acre site as a discharge location
provided Russo agrees to deed over an approximately 16 acre parcel of
wetlands in Ridgefield, N.J. for preservation, and provide $700,000 for
the purpose of enhancing wetlands at this site and on sites to be
contained in the Hackensack Meadowlands District mitigation bank. In
particular, EPA is interested in comments relating to the currently
proposed compensatory mitigation and its ability to replace the
wildlife values lost as a result of past fill activities, as well as
anticipated losses due to proposed discharges in the subject wetlands.
DATES: Written comments concerning this proposed amendment must be
submitted to EPA on or before April 27, 1995.
ADDRESSES: Copies of EPA's 1988 Final Determination and relevant
documents supporting the proposed modification are available for public
inspection upon request at the following locations:
U.S. Environmental Protection Agency, Office of Wetlands, Oceans, and
Watersheds, Wetlands Division, 499 South Capitol Street, SW, Fairchild
Building, Room 703, Washington, DC 20009
U.S. Environmental Protection Agency--Region II, Water Management
Division, 26 Federal Plaza, Jacob K. Javits Federal Building, Room
1137, New York, NY 10278
Comments must be submitted in writing to Joseph P. DaVia, Acting
Chief, Elevated Cases Section, Mail Code: 4502F, U.S. EPA, 401 M Street
SW, Washington, DC 20460. Written comments may also be sent by
facsimile to Mr. DaVia at (202) 260-7546.
FOR FURTHER INFORMATION CONTACT: John Ettinger (EPA) at (202) 260-1190.
SUPPLEMENTARY INFORMATION: On March 21, 1988, the Assistant
Administrator (AA) for Water of the United States Environmental
Protection Agency (EPA) rendered a final determination which prohibited
the designation of 57.5 acres of wetlands as a disposal site for fill
material. These wetlands were and are currently owned by the Russo
Development Corporation (Russo), and are located in the Hackensack
Meadowlands in Carlstadt, Bergen County, New Jersey. The reason cited
by the AA for Water for this action was that the discharge of fill
would have unacceptable adverse effects, both immediately and
cumulatively, to wildlife in the Meadowlands. This action was taken
pursuant to Section 404(c) of the Clean Water Act (CWA, U.S.C. 1251 et
seq.), which authorizes the Administrator (who has delegated this
authority to the AA for Water), after notice and opportunity for a
public hearing, to prohibit or restrict the use of any defined area as
a disposal or discharge site for dredged material or fill. In such a
case, the AA for Water must have first determined that such discharge
will have an unacceptable adverse effect on municipal water supplies,
shellfish beds and fishery areas (including spawning and breeding
areas), wildlife, or recreational areas.
Procedural History and Rationale for the Determination
The chronology of the Corps and EPA actions leading up to EPA's
1988 404(c) determination is summarized in the Final Determination of
the AA for Water. Briefly, the events are summarized as follows: In
1981, Russo placed 44 acres of fill for the purpose of constructing a
warehouse complex in Carlstadt in the Hackensack Meadowlands in Bergen
County, New Jersey (44 acre tract). Russo constructed six warehouses
and began a seventh on the 44 acre tract. Russo subsequently excavated
most of the adjacent 13.5 acre parcel (13.5 acre tract) and then filled
8.5 of the 13.5 acres in order to build more warehouses. The Corps
issued a cease and desist order subsequent to his placement of 8.5
acres of fill. Five acres of the 13.5 acre tract remain wetland. Russo
excavated two to three acres of the unfilled five acres to remove
unsuitable soils and fill with suitable construction material. This
excavated area subsequently ponded and developed into open water with
aquatic and emergent vegetation.
EPA first learned of Russo's fill activities in an April 22, 1985,
letter from the Corps which announced their investigation of
unauthorized fill activity on the 8.5 acres. The Corps subsequently
extended enforcement action to the 44-acre tract as well. EPA initially
recommended either removal of fill or mitigation to compensate for the
wetlands losses. The Corps processed an after-the-fact permit
application and issued a public notice on August 28, 1985, proposing to
authorize 55 acres of existing fill (later corrected to 52.5 acres) and
to authorize the placement of additional fill in the remaining five
acres of wetland.
On December 22, 1986, the Corps submitted a Notice of Intent to
Issue a permit to the Russo Development Corporation accompanied by a
Statement of Findings, environmental assessment, and evaluation of
compliance with the Section 404(b)(l) Guidelines. The permit decision
would authorize 0.5:1 value-for-value compensation for the 57.5 acre
loss of wetlands. The mitigation proposal would provide for the
enhancement of a nearby, unspecified wetland northeast of the project
site and would secure the permanent preservation of a 23 acre wetland
site in Troy Meadows in the Passaic River basin (to the southwest of
[[Page 15915]] the Hackensack River basin). EPA responded on December
24, 1986, requesting a meeting with the Division Engineer and
suspension of further action on the project. The U. S. Fish & Wildlife
Service (FWS) also elevated the decision under CWA Section 404(q).
Subsequently, EPA and the Corps attempted to negotiate a resolution
which would provide a 1:1 value-for-value compensation, but were
unsuccessful. Unable to resolve both agencies' concerns, the Corps
eventually issued its final Notice of Intent to Issue on March 23,
1987, proposing to authorize 52.5 acres of existing fill and placement
of five additional acres of fill, and to require Russo to compensate on
a 0.5:1 value-for-value basis for the loss of 57.5 acres of wetlands.
Under Section 404(q) of the CWA, EPA requested elevation of the permit
decision to national level review on April 27, 1987, and that request
was denied by the Department of the Army on May 8, 1987.
Having exhausted administrative procedures to resolve agency
concerns, the Regional Administrator for Region II then notified the
District Engineer and the Russo Development Corporation on May 26,
1987, in accordance with Section 404(c), of his intent to issue a
public notice of a proposed determination to prohibit or restrict the
discharge of fill on the Russo site, based on his belief that the
discharge had resulted and would result in unacceptable adverse effects
to wildlife. The letter afforded the mentioned recipients 15 days to
demonstrate that no unacceptable adverse effects would occur as a
result of permit issuance. On May 27, 1987, the District Engineer
responded that his analysis clearly demonstrated that no unacceptable
adverse effects would occur from permit issuance. Russo responded on
June 10, 1987, concluding that EPA could not successfully argue that
the project would have an unacceptable adverse effect on the
environment, and they requested the Corps decision to issue a permit be
affirmed. The Regional Administrator concluded that no new information
had been presented and therefore he was not satisfied that the project
would not pose unacceptable adverse impacts.
On August 7, 1987, a public notice was published in the Federal
Register and the New Jersey Star Ledger announcing the proposed
determination to prohibit or restrict the discharge of fill material.
The comment period extended for 60 days and closed on October 6, 1987.
The notice requested comment on the need for a public hearing. There
was response requesting a public hearing, and the holding of a hearing
was found to be in the public interest. On October 13 and 14, 1987, a
public notice was published in the New Jersey Star Ledger and the
Federal Register scheduling a public hearing for November 5, 1987. The
hearing was held and the comment period closed on November 20, 1987.
The Regional Administrator forwarded his Recommended Determination
to the AA for Water, along with the Administrative Record of the case.
The Recommended Determination was adopted by the AA for Water and was
incorporated into his final decision. The decision to prohibit the
specification of the Russo wetlands as a fill disposal site was based
upon findings by the AA for Water that: 1. The wetlands on the Russo
tracts were valuable to wildlife because they represented a diverse
array of wetland types, types which are rare in the context of the
Meadowlands landscape; 2. the wetlands on the Russo tracts supported/
support a large mix of species, most of which are declining in New
Jersey due in part or whole to a loss and/or deterioration of available
habitat (of particular importance was/is the ability of the site to
support populations of black duck, a FWS species of special concern,
whose populations have declined nationally due to a loss and/or
deterioration of available habitat); 3. the loss of this habitat would
cause unacceptable impacts to wildlife values unless these values were
maintained through mitigation; and, 4. the proposed/required mitigation
would neither compensate for the loss of approximately 57.5 acres of
valuable wildlife habitat nor constitute appropriate and practicable
mitigation. Therefore, the mitigation would not offset the significant
wildlife impacts identified. Thus, the fill had resulted and would
result in unacceptable adverse impacts to wildlife under Section 404(c)
of the Clean Water Act. Accordingly, the AA for Water prohibited the
designation of the Russo tracts as a discharge site.
As part of the findings and conclusions which led to the
prohibition of the Russo site as a fill discharge site, the AA for
Water noted the following:
In the present case, my findings of unacceptable adverse effects
stems [sic] from current and anticipated losses of valuable wildlife
habitat that has/will result from direct effects of discharges
regulated under Section 404 of the CWA and within the Russo site. As
previously stated, however, fill has already been placed on
approximately 52.5 acres of wetlands and only 5 acres remain
unfilled. Although I have concluded that the wildlife values
previously and currently provided by the Russo tract are important
enough to preserve, the fact remains that most of the site has been
filled and its value to wildlife destroyed. Also, I am mindful that
under these circumstances, final action by EPA pursuant to Section
404(c) of the CWA will not prevent the occurrence of most of the
unacceptable adverse effect or accomplish reversal of such effects.
Further actions will be necessary, either within the context of
voluntary compliance by Russo or an enforcement action, to determine
the extent of wetland value replacement and pursue compensatory
action. The site has been damaged and, indeed, some or all of this
damage may be irreversible. In addition, the presence of tenanted
warehouses on the unauthorized fill raises other issues that run
counter to restoration of the site. Mitigation has been a focal
point of discussions with respect to this project during the Corps
permit process as well as a contributing factor to my determination
of unacceptable adverse effects. If the condition of the Russo tract
precludes onsite restoration from a technical or practical
standpoint, then EPA would expect to pursue replacement of lost
wildlife values elsewhere. Mitigation of lost wildlife values will
not be required for any portions of the previously discussed old
field areas that are determined to have been uplands.1
\1\As part of the Final Determination, the AA for Water noted
that portions of the areas delineated as old field on EPA's map of
the Russo site in its pre-discharge condition may have contained
uplands, because the information on vegetation at this point was
inconclusive and raised the possibility that portions of the old
field areas may have been uplands. That consideration did not alter
the final decision, which was based on conclusions concerning the
extent of the wildlife values provided by the site, nor did it alter
conclusions that the proposed/permitted mitigation was inadequate,
since the portions of the tract in question comprised a small
portion of the impact area. The jurisdictional issue was left
unresolved due to Russo's desire for a timely decision by EPA.
However, it was noted that the issue might ultimately affect the
precise amount of mitigation necessary, since no compensation would
be required for areas determined to be uplands, which are not
jurisdictional under Section 404.
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The AA for Water did note the following:
I will reconsider this prohibition at the request of EPA's
Regional Administrator in Region II upon a showing that the
unacceptable adverse effects to wildlife have been addressed to his
satisfaction.
Judicial Decisions Related to the Proposed Amendment of EPA's 404(c)
Determination
Russo brought suit against the Corps and EPA in U.S. District
Court. Russo Development Corporation v. Thomas et al., No. 87-3916
(D.N.J.). In a series of opinions, the court vacated in part and
remanded in part EPA's 404(c) decision. In its first decision, the
court found the Corps had been arbitrary and capricious in requiring
Russo to submit jointly an [[Page 15916]] application for a permit
encompassing both the 13.5 and 44 acre sites. The court found that, on
the facts of this case, the activities on the two sites did not
constitute the ``same project'' under applicable Corps regulations (33
CFR 325.1(d)(2)). To remedy this error, the court stated that it would
``limit the plaintiff's application for a Corps permit and the
subsequent grant and veto of the permit to the 13.5 acre parcel.'' 735
F. Supp. 631, 637 (D.N.J. 1989). This decision therefore vacated EPA's
Section 404(c) determination as it related to the 44 acre parcel. See
also Id., at 639 (``Because of the court's decision that the veto of
the 44 acre parcel is void, the question [of the validity of EPA's
404(c) decision] concerns only the 8.5 acre tract.''). The court also
held in this opinion that EPA should have considered the New Jersey
Coastal Management Program in its 404(c) determination. The court also
dismissed Russo's claims that EPA's and the Corps' actions violated
Russo's due process rights under the Constitution.
On May 17, 1991, the court ruled on the remainder of Russo's claims
in this case. Russo Development Corporation v. Reilly, 1991 U.S. Dist.
Lexis 20965, 21 ELR 21345. The court first dismissed Russo's claims
that EPA and the Corps acted in bad faith, and that the agencies had
failed to demonstrate that they had jurisdiction over the 13.5 acre
site under the CWA. Consistent with the holding in its 1989 opinion
that it was arbitrary and capricious for the Corps and EPA to link the
44 acre and 13.5 acre parcels in their decisions, the court remanded
the permitting and veto decisions for further considerations. The court
further directed the Corps and EPA to consider, on remand, the precise
extent of CWA jurisdiction over the 13.5 acre site and the appropriate
mitigation to compensate for impacts to the site. The court also
directed EPA to articulate on remand its reasons for any deviations of
its decision from the New Jersey Coastal Zone Management Plan.
New Information and Developments Supporting Reconsideration of the
404(c) Prohibition
Since 1988, several important pieces of new information concerning
the site and concerning wildlife habitat utilization within the
Meadowlands have been developed subsequent to the prohibition of the
site for fill discharge. These include:
1. A re-evaluation of the extent of wetlands on the 13.5-acre site
(April 15, 1992, Corps memorandum). The Corps determined that 3.27
acres of the 13.5 acre site are not considered to have been wetlands,
while the remaining 10.23 acres were wetlands prior to disturbance in
1985. Based on the criteria used in this re-evaluation, EPA has re-
evaluated the pre-discharge extent of jurisdiction on the 44-acre
parcel as well, and finds that approximately 40.7 acres of this tract
were wetlands subject to jurisdiction under Section 404 of the CWA.
2. A study of habitat utilization by numerous species of wildlife,
particularly birds, of Phragmites-dominated habitat in the Meadowlands.
This report, Site Survey Report: Ecological Studies, Hartz Mountain
Development Corporation Villages at Mill Creek, was prepared in
December, 1991 by U.S. EPA Region II and Gannett Fleming, Inc. This
study provides detailed information on the wetland characteristics
which are of value to wildlife in the Meadowlands, which species use
this habitat, and how this habitat is used. Based on this information,
a more precise determination can be made of the wetland values lost on
the Russo tracts, and what features could be provided in a mitigation
proposal to replace those values. In particular, this study provided
detailed information on the use of these habitats by black duck, which
is a FWS species of special concern. In the Final Determination, the AA
for Water's conclusions that the fill would cause unacceptable adverse
effects to wildlife were strongly influenced by the impacts of the fill
on black duck. Based on this new information, a better estimate of the
Russo tract's importance in supporting black duck populations in its
pre-discharge state may be made.2 In addition, habitat attributes
which support black duck populations in the Meadowlands have been
identified. These habitat attributes can be provided in a mitigation
design for the purpose of more predictably increasing habitat value to
black ducks. This would provide compensation for the loss to this
species and would reduce cumulative impacts to this species.
\2\Black ducks would have used the mixed emergent areas for
feeding and resting, which are identified in the January 19, 1988,
Recommendation of the Regional Administrator pursuant to Section
404(c) of the CWA.
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3. The development of a Mitigation Banking Agreement for the
Meadowlands. This agreement is currently being developed and is
expected to be completed shortly. Under this agreement, the Hackensack
Meadowlands Development Commission (HMDC) would develop and administer
several mitigation banks. Some of these would be implemented by
performing mitigation on publicly or quasi-publicly owned wetlands
(thus not requiring outright purchase of these lands), and HMDC is
seeking to acquire additional lands on which to implement mitigation.
Since EPA and the Corps would be among the Federal agencies
participating in the mitigation banking process, they would be advising
HMDC on the design, construction, monitoring and remedial action for
mitigation projects on a more comprehensive and consistent scale.
Consequently, value replacement, performance, and success could be more
predictably and consistently ensured through this mechanism. Thus,
mitigation opportunities within the Hackensack River basin, within the
area of impact, could be provided where opportunity was previously
scarce or unavailable to private developers.
4. Selected terms of a proposed agreement reached between the
Corps, EPA and Russo to settle litigation regarding this matter. Under
the settlement terms, Russo would deed over, for preservation and
enhancement, an approximately 16-acre parcel of wetlands in Ridgefield,
NJ, (the Ridgefield tract) located approximately 1.5 miles from the
subject Russo tracts. Russo would also provide $700,000 for the purpose
of enhancing wetlands, both at this site and on sites contained in the
HMDC mitigation bank.
The Final Determination by the AA for Water treated the 44 and 13.5
acre tracts as a single ecological unit for the purposes of evaluating
their loss to the ecosystem. As discussed above, the court in Russo
Development Corporation v. Thomas, et al. invalidated the linkage of
the 13.5 and 44 acre parcels by the Corps, and vacated EPA's 404(c)
determination as to the 44 acre parcel. Therefore, the proposed
amendment to revise EPA's 404(c) determination would amend only the
portion of EPA's original 404(c) prohibition that has remained in
effect (i.e., for the 13.5 acre parcel). Because the proposed
settlement terms discussed above seek to resolve all issues related to
both the 44 and 13.5 acre parcels, however, this notice also discusses
the adequacy of mitigation as it relates to all of the activities
conducted by Russo on the two sites. Russo has agreed to waive any
objections to the agencies' consideration of the totality of the
impacts of fill at the 44 acre and 13.5 acre sites in their
determinations on remand.
Wetland Values Lost, and Outline of Unacceptable Adverse Effects to
Wildlife
The Final Determination of the AA for Water identified several
habitat features [[Page 15917]] on the Russo tracts which contributed
to their ecological importance. First, several different types of
wetland habitat were found on each of the tracts. This juxtaposition of
wetland types to each other, as well as to surrounding wetland areas,
provided habitat diversity in a landscape that is generally somewhat
monotypic in nature. Second, several of the wetland types, viz., wet
meadow, mixed emergent, and wooded, are relatively rare in the
Meadowlands, and provided habitat for a large mix of species. Many of
these species are experiencing population declines within New Jersey,
which are attributable in whole or in part to loss and/or deterioration
of available habitat. The interspersion of habitat types, along with
the relative rarity of those types, made the Russo tracts valuable to
wildlife. The breakdown of wetland types by approximate acreage3
is provided in Table 1 below:
\3\The acreages have been calculated based on the wetland map
provided in the Maguire Group report entitled, Vegetation Types--
1978. Because the extent and description of these types is based on
aerial photointerpretation, and not on precise survey, acreages can
only be approximate.
Table 1.--Acreage (Approximate) of Wetland Types Comprising the Two
Russo Tracts in Carlstadt, NJ
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13.5 acre 44 acre
Wetland type tract tract
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Wet Meadow.................................... 3.68 ac 21.73 ac
Mixed Emergents............................... 1.14 ac 2.92 ac
Wooded........................................ 0.00 ac 0.37 ac
Phragmites.................................... 5.41 ac 15.69 ac
Old field (subsequently determined to be non
jurisdictional).............................. 3.27 ac 3.30 ac
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Total..................................... 13.50 ac 44.00 ac
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The conclusion and findings of the Final Determination were that
unacceptable adverse effects to wildlife were caused by/ would be
caused by the fill unless those values are maintained through
mitigation. While the quality and importance of the lost wetlands to
the lower Hackensack watershed weighed strongly in the AA for Water's
decision to prohibit specification of the sites for disposal, perhaps
the most significant factor contributing to the finding of the AA for
Water was that the impacts were unlikely to be adequately compensated
by the proposed/permitted mitigation plan.
The mitigation plan which was originally proposed by Russo during
the permit evaluation was considered by EPA to be both inappropriate in
type and inadequate in its extent to provide sufficient compensation
for the wetlands values lost. The plan comprised two parts: enhancement
of offsite wetlands within the Hackensack basin and preservation of
wetlands outside the basin. The enhancement component of the mitigation
proposal would have provided enhancement of an unspecified acreage of
wetlands somewhere to the northeast of the site. Since the location and
exact acreage proposed for enhancement were never identified, the
existing and post-enhancement wetland values could not be evaluated to
determine how much compensation would have been provided by those
means.
The other component, which was the proposed preservation of a 23
acre wetland parcel outside the Hackensack River basin, would not have
provided any increase in wetland value to compensate for wetland values
lost as a result of the filling activity, since the parcel was already
a functioning wetland and no other enhancement activity was proposed to
provide an increase in value. Furthermore, any wetland value which
might have been added to that parcel would not have provided
compensation in the watershed where the damage occurred, and so could
not have compensated for the loss to the Hackensack River system.
Finally, the Corps permit required only 0.5:1 value for value
replacement, which would have resulted in, at best, a 50% loss of
wetland values as a result of Russo's activities.
Desirability of Obtaining Compensatory Mitigation
Russo's activities on the 13.5-acre site have destroyed almost all
of the pre-discharge wetland characteristics of the site. The site was
almost completely excavated of its original soil. Eight and one half
acres were subsequently filled with shot rock to a depth of several
feet. The stone used for fill was of varying sizes, but most of the
material would be classified as boulders, according to the Wentworth
scale. The fill material has continued to compact and consolidate in
the ensuing nine years since the fill activity took place, and it is
likely that the underlying soil layers have also compacted. Therefore,
the likelihood of restoring this site to its original condition or to a
suitable wetland condition is small, and it is not practicable or
feasible to consider this as a preferred option. Consequently, offsite
mitigation would need to be provided to eliminate the unacceptable
adverse effects to wildlife identified in the decision of the AA for
Water to prohibit specification of this site under Section 404(c).
Likewise, the 44-acre parcel was filled in 1981 with material of
the same type. The soils on this site are more likely to have compacted
and consolidated into material unlikely to support site restoration,
because the site has been constructed on and has had functioning
warehouses with concomitant large vehicle traffic since the early
1980's. This site is even less likely to be restorable to a suitable
wetland condition than the 13.5 acre parcel owing to this factor and
also to the fact that tenanted warehouses occupy the site. As such,
offsite compensatory mitigation would be needed to offset the wildlife
values lost as a result of the fill activity.
Mechanisms To Provide Compensatory Mitigation
The changes in circumstances and information described above have
improved the ability of Russo to achieve reasonable compensation for
wetland wildlife values lost as a result of the unauthorized discharge
of fill. One of the main factors which influenced Russo's original
mitigation proposal was the alleged difficulty in privately obtaining
large tracts of wetlands within the Meadowlands for the purpose of
providing compensatory mitigation. This can now be addressed with the
use of a mitigation bank, which will obtain and have available large
wetlands tracts for the purposes of providing compensatory mitigation.
HMDC's proposed mitigation bank will make wetland mitigation on a
substantial acreage within the Hackensack River basin, the area of
impact, available for purchase. With adequate funding, wetland
enhancement through this mitigation bank can be obtained, and will
provide significant compensation opportunity.
Under the terms of the settlement discussed above, Russo will
provide approximately 16 acres of wetlands which will provide
additional compensatory value via enhancement. Thus, between the land
to be provided by Russo and the lands available for enhancement in the
mitigation bank, sufficient land for mitigation purposes is now
reasonably available to provide compensation for the wetlands losses
resulting from the discharges of fill on the Russo tracts.
Under the terms of the settlement, Russo also would provide a total
of $700,000 for the purposes of implementing compensatory mitigation
through the HMDC mitigation bank. A portion of this funding will be
spent [[Page 15918]] providing enhancement to the 16-acre Ridgefield
tract. The remainder of the funds will be used to enhance the wetland
values of acreage within the HMDC mitigation bank. The means to provide
compensation for lost wetland values are therefore available. What
remains is to provide a demonstration that adequate compensation, and
appropriate compensation, can be provided through this proposal.
Determination of Adequate Compensation
The additional information on habitat values in the Meadowlands
which was provided in the EPA study previously referenced provides
useful guidance for the appropriate design of mitigation sites in the
Meadowlands. A mitigation design which incorporates the habitat
features identified by this study as valuable is likely to provide a
greater guarantee of success in achieving the goal of no net loss in
wetland values. Such a design would be directly tailored to wildlife
needs in the Meadowlands, and is thus appropriate to compensate for the
particular values lost from the Russo tracts. For example, open water
areas which are interspersed among and surrounded by Phragmites were
found to be preferentially used as resting/feeding habitat by
overwintering black ducks, Anas rubripes, a FWS species of special
concern. The open water provides necessary feeding/resting habitat,
while the associated Phragmites provides shelter from winter winds,
thus reducing caloric requirements and stress on this species.
Mitigation designed to increase hydrologic flow and provide open water
areas interspersed with Phragmites will greatly increase the value of
those tracts to black duck populations in the Meadowlands. Such a
component responds directly to one of the wildlife losses of concern
identified by the AA for Water in the Final Determination, and will
provide compensation for this loss. While the exact location of the
acreage proposed for enhancement has not yet been specified, the
mitigation bank locations which are being evaluated by HMDC have the
similar habitat features and are generally good candidates for
enhancement. The candidate sites are large tracts, mostly dominated by
a monoculture or near-monoculture of Phragmites. Most of the proposed
bank sites have a reduced or nonexistent flow and interspersion of
water, or have been cut off from tidal inundation. A variety of
different mitigation activities are able to be performed on such sites
and will provide good compensation for wildlife values which were lost/
are being lost from the Russo tracts.
Since the mitigation banks are not yet functioning, the precise
type and amount of mitigation that will be performed to compensate for
the wetlands values lost from the Russo tract has yet to be determined.
However, outlined below in Table 2 is an example mitigation strategy
that would likely be feasible to implement with the funding made
available by Russo for mitigation activities. EPA believes, moreover,
that such a mitigation strategy would adequately compensate for wetland
losses experienced on the Russo tracts.
Table 2.--Wetland Types, by Acreage, Which Were Lost From the Russo 13.5-
Acre Tract, and Enhancement Activities Which Would Provide Adequate
Compensation for Those Losses
------------------------------------------------------------------------
Habitat improvement
Wetland type lost Enhancement activity which will result from
(acres) the enhancement activity
------------------------------------------------------------------------
Mixed emergents/open Excavation of two 1-acre Diverse ponds or
water (1.14 ac). ponds or meandering watercourses attractive
channels in Phragmites to waterfowl and
fields; planting/ muskrats, able to
seeding with emergent provide winter shelter
species at fringe. and improved feeding.
Wet meadow (3.68 ac) Remove Phragmites on 4 Creation of habitat
ac and excavate to valuable to raptors and
maintain a permanently species such as
saturated hydrologic woodcock and pheasant;
regime; seed with possible provision of
mixture of wet meadow nesting habitat for
species. In tidal certain species of
areas, an alternative waterfowl. Wet meadow
would be establishment would directly replace
of high salt marsh. lost habitat type.
Since there is less
plant diversity in a
high salt marsh, 6
acres of enhancement
would be recommended.
Phragmites, unbroken Either excavation of Creation of saturated
field (5.41 ac). 5.41 ac from upland to system of emergents
create regularly which would provide the
saturated habitat and same functions as
planting or seeding Phragmites. Enhancement
with suitable wetland to a S. alterniflora
emergents, or marsh increases value
excavation and seasonally to wildlife,
eradication of but more plant
approximately 5.5 acres diversity is needed
of tidal, unbroken since enhancement is
Phragmites to average occurring on a
mean water and planting functioning wetland.
or seeding with Shrub layer provides
Spartina alterniflora this.
and shrubs.
------------------------------------------------------------------------
Three types of wetland habitat are believed to have existed on the
13.5-acre site prior to Russo's fill activities; viz., mixed emergent,
wet meadow, and Phragmites. Since 3.27 acres, which was identified by
aerial photography as ``old field'' has been determined by the Corps to
have been a non-wetland area, a determination with which EPA concurs,
no compensation is required for fill activity which occurred on this
portion of the site.4
\4\This is consistent with the findings and guidance of the AA
for Water set forth in the Final Determination.
---------------------------------------------------------------------------
The excavation of two, one-acre ponds or approximately two acres of
meandering channel will provide two acres of valuable feeding/resting
habitat for waterfowl, particularly black duck. The mixed emergent
areas originally present on the 13.5-acre site totalled 1.14 acres.
This acreage, however, was divided among three areas, and was less
likely to be attractive to waterfowl than a single pond or watercourse
of the same size. Since an existing wetland, which has functional
values of its own, will be excavated to create the ponds or channel, it
will lose some functional value as a result of the excavation activity.
The creation of an additional acre of open water is likely to offset
any losses associated with the enhancement activity itself. The cost of
such an enhancement is likely to be low, since only the fringe of the
ponds would be seeded, and would probably not exceed $5,000/acre, based
on EPA Region II's best estimates of cost.
The enhancement of approximately four acres of Phragmites
monoculture to provide a frequently saturated wet meadow will restore
the same acreage of wet meadow that was lost from the site. As an
alternative, should the proposed mitigation site be tidal, a tidal high
salt marsh, dominated by Spartina patens and Distichlis spicata, can be
established. High salt marsh is also a remnant habitat in the District,
and [[Page 15919]] would provide many of the same values to wildlife as
wet meadow (i.e., attractive to raptors, small mammals, etc.) but is
not usually as species-rich in plants, including those with food value
to wildlife, as a freshwater wet meadow. Consequently, this type of
compensation should be established at a 1.5:1 acreage replacement,
since it represents out-of-kind mitigation, and would not have as many
functions as the habitat for which it is providing compensation.
The remaining 5.4 acres of the 13.5-acre tract was dominated by
Phragmites. The creation of a 5.4 acre emergent marsh from upland would
offset this loss. If enhancement is the technique used (as is likely),
then the replacement vegetation for Phragmites must be twice as
valuable to wildlife to provide value-for-value compensation for
wildlife. Based on EPA studies, Spartina marsh habitat is more
attractive to wading birds and waterfowl, and is of equal value to
certain passerine species. Phragmites-dominated habitat can be doubled
in its value to most wildlife species if it is enhanced to provide an
equal acreage of Spartina alterniflora/scrub-shrub marsh, and it is
interspersed with the other proposed habitat types. Therefore,
conversion of approximately 5.5 acres of uniform Phragmites to S.
alterniflora/scrub-shrub salt marsh will compensate for the wildlife
value of the 5.41 acres of Phragmites marsh lost from the Russo 13.5-
acre tract, and will result in no net loss of wildlife value for the
acreage lost.
Estimates for the eradication of Phragmites, excavation and seeding
of other species (such as Spartina or hydrophytic herbaceous forbs,
such as those found in wet meadow habitats) varies, but are expected to
average about $20,000/acre, based on EPA Region II's best available
information. Approximately nine acres of such enhancement would be
required to provide the suggested wet meadow and S. alterniflora/scrub-
shrub marsh. (The land acquisition for mitigation activities will
already have occurred when these activities are expected to be
implemented.) Adequate funds would therefore be available to provide
the requisite enhancement to ensure a value-for-value replacement.
The balance of the funds would go toward providing replacement of
wetland wildlife value lost as a result of filling the 44-acre tract.
An example mitigation strategy that would likely be feasible to
implement with the resources made available by Russo, and which would
provide compensation for wildlife values lost from the 44-acre tract is
listed in Table 3.
Table 3.--Wetland Types, by Acreage, Which Were Lost From the 44-Acre
Tract, and Enhancement Activities Which Would Provide Adequate
Compensation for Those Losses
------------------------------------------------------------------------
Habitat improvement
Wetland type lost Enhancement activity which will result from
(acres) the enhancement activity
------------------------------------------------------------------------
Mixed emergents/open Excavation of 6 acres of Diverse ponds or
water (2.92 ac). open water habitat watercourses attractive
(ponds and/or channels) to waterfowl and
in Phragmites fields; muskrats, able to
planting/seeding with provide preferred
other emergent species winter shelter and
at fringe.. improved feeding.
Wooded (0.37 ac).... Planting of Provides nesting
Phragmites areas approximately 3 acres opportunities for
(15.69 ac). of shrub/tree layer on waterfowl/passerine
16.5 ac Ridgefield species, as well as
tract buffer from developed
area. Fruit-bearing
shrubs greatly
increases wildlife food
value.
Wet meadow (21.73 Removal of Phragmites on Creation of habitat
ac). 22 ac and excavation to valuable to raptors and
achieve seasonally species such as
saturated hydrologic woodcock and pheasant;
regime with some ponded possible provision of
areas. Seeding with a nesting habitat for
mixture of wet meadow certain species of
grasses and forbs. waterfowl. Direct
Alternatively, replacement of habitat
establishment of 33 ac type lost.
of high salt marsh
------------------------------------------------------------------------
The rationale for the types of enhancements suggested for the 44-
acre tract is essentially the same as for the proposal for the 13.5-
acre tract. The one component which is different is the proposal to
mitigate for the loss of approximately 15.7 acres of homogeneous
Phragmites fields and for the loss of 0.37 acres of wooded habitat by
providing approximately three acres of a shrub/woody vegetation layer
on the 16.5 acre Ridgefield tract. The Ridgefield tract is essentially
a monoculture of Phragmites; however, it contains abundant marsh/open
water tidally influenced complexes. As previously mentioned, this type
of Phragmites/open water mosaic provides feeding and resting areas to
waterfowl on a year round basis, but is especially valuable to
overwintering waterfowl because it provides them not only with feeding
and resting areas but also with shelter from severe weather, thus
lowering their expenditure of calories. Consequently, its existing
wildlife value is good in context of the Meadowlands as a landscape.
However, it does not provide any nesting opportunities for birds
requiring trees and shrubs. Neither does it contain any substantial
source of fruits or seeds which are used as preferred foods by wildlife
such as pheasant, woodcock, etc., which were believed to have been on
the 44-acre tract prior to filling. Both the nesting and food values to
wildlife are largely lacking in the immediate vicinity of the
Ridgefield tract. By providing the woody vegetation layer, at an
acreage ten times that which was lost on the 44-acre tract, this value
is not only replaced for the woody vegetation that was lost, but also
enhances the entire 16.5-acres and provides wildlife value that has
never been on that parcel. When considered in conjunction with the
valuable open water mosaic present on that site, we believe that the
enhancement will increase the value of the Ridgefield site sufficiently
to compensate for the loss of the 15.7 acre homogeneous Phragmites
field and .37 acres of wooded wetlands.
Most of the wetlands on the 13.5-acre tract have already been
filled and converted to upland; the entire tract has been disturbed
from its original condition. If the prohibition on fill is amended to
allow the proposed settlement to proceed, it is likely that Russo would
be permitted to complete his activity on site. The calculation of
mitigation includes considerations based on the complete loss of the
tract's wetlands value.
Proposed Action and Consistency With the New Jersey Coastal Zone
Management Plan (CZMP)
In its May 17, 1991 opinion, the court in Russo Development Corp v.
Reilly, No. 87-3916, held that EPA was arbitrary and capricious for
failing to articulate its reasons for deviating from the New Jersey
Coastal Zone Management Plan (CZMP) in the Agency's 404(c)
determination. The [[Page 15920]] Agency's decision was remanded to EPA
in part on this ground.
Section 307(c)(3)(A) of the Coastal Zone Management Act (CZMA)
prohibits a Federal permit from being issued for an activity affecting
any land or water use or natural resource of the coastal zone of that
state until the applicant furnishes a certification that the activity
is consistent with an approved CZMP, and the State concurs in the
certification or waives review. This portion of the CZMA is implemented
in the Corps regulations by 33 CFR 325.2(b)(2). Because the Corps'
regulations adequately address the CZM consistency requirement, EPA did
not duplicate Sec. 325.2(b)(2) in the 404(b)(1) Guidelines.
The Hackensack Meadowlands District Master Plan is the Coastal Zone
Management Plan for the Meadowlands District, and the current plan
zones the 13.5 acre parcel for development. Because EPA's 404(c)
determination, if it is finalized as proposed today, would no longer
preclude the Corps from authorizing fill activity on the 13.5 acre
parcel, such an action would appear to be consistent with the Master
Plan. Of course, under section 307(c)(3)(A) of the CZMA and 33 CFR
325.2(b)(2), it is the State that ultimately would have the authority
to determine consistency of a new permit proposal with the applicable
plan.
Conclusions
The Final Determination by the AA for Water contemplated a
reconsideration of the prohibition upon a showing that adequate
mitigation could be provided to offset unacceptable impacts to
wildlife. Russo has proposed the following mitigation to compensate for
impacts of the fill activity: (1) Deed over an approximately 16 acre
parcel of wetlands in Ridgefield, N.J. for preservation, and (2)
provide $700,000 for the purpose of enhancing wetlands at this site and
on sites to be contained in the Hackensack Meadowlands District
mitigation bank. Since there will be Federal oversight of the type of
enhancements performed, as well as the design, construction, and
implementation of the mitigation activities, and since the funding
provided for mitigation would be applied to enhancement alone5,
the mitigation activities would be applied to sufficient acreage, and
would be of appropriate kind and quality, to provide adequate
compensation for losses of wetlands values which resulted/are resulting
from the unauthorized fill.
\5\Costs for enhancement vary widely, but private contractors
generally range from $10,000-$20,000/acre in this area to implement
mitigation, based on an informal EPA Region II survey of costs. In
this case, monitoring will be overseen by agency personnel, which
reduces the cost. Because the mitigation activities will occur over
a large number of acres, there is an economy of scale involved in
design and construction, since mobilization/demobilization and
design costs will be distributed over many participants. Finally,
since there would be a large pool of wetlands acreage available for
enhancement, wetlands to be enhanced using Russo's funds can be
strategically chosen so that the value increase of Russo's portion
of the mitigation may be maximized.
---------------------------------------------------------------------------
Unlike the proposal in the original permit, all of the compensation
proposed will involve an increase in value and will be located within
the lower Hackensack River basin (the location of the impact).
Furthermore, the proposed combinations of mitigation activities will
ensure that a mosaic of different habitats, which was an important
factor contributing to the wildlife value of the Russo tracts, will be
restored elsewhere within the relevant area of the impact. Finally, the
above proposals will provide adequate acreage of the different wetland
types to compensate for the extent of wildlife values lost on the Russo
tracts. Therefore, under the terms of the settlement, there would be no
significant loss of wetland values which would not be offset by
appropriate and adequate mitigation. There would, we believe, no longer
be unacceptable adverse effects to wildlife from this activity. The
prohibition on specifying the Russo tracts as disposal sites for fill
would no longer be necessary to prevent unacceptable adverse effects to
wildlife and the aquatic ecosystem. EPA therefore proposes that,
conditional upon a binding agreement by Russo to provide the funds and
land preservation discussed above, the Section 404(c) prohibition on
specification of the 13.5-acre site for fill material be removed, and a
restriction be imposed that would allow specification of these areas as
disposal sites provided Russo implements the mitigation plan discussed
above.
Dated: March 21, 1995.
Robert Perciasepe,
Assistant Administrator for Water.
[FR Doc. 95-7590 Filed 3-27-95; 8:45 am]
BILLING CODE 6560-50-P
