Proposed Determination To Prohibit or Restrict the Use of Wetlands and Other Waters as Disposal Sites for the Nashua-Hudson Circumferential Highway in Nashua, Hudson, Litchfield, and Merrimack, NH

ENVIRONMENTAL PROTECTION AGENCY

[FRL-5097-1]

Proposed Determination To Prohibit or Restrict the Use of

Wetlands and Other Waters as Disposal Sites for the Nashua-Hudson

Circumferential Highway in Nashua, Hudson, Litchfield, and Merrimack,

NH

AGENCY: U.S. Environmental Protection Agency (EPA).

ACTION: Notice of Proposed Section 404(c) Determination and Public

Hearing.

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SUMMARY: Section 404(c) of the Clean Water Act (Act) authorizes the

Environmental Protection Agency (EPA) to prohibit or restrict the

discharge of dredged or fill material at defined sites in the waters of

the United States (including wetlands) whenever it determines, after

notice and opportunity for hearing, that use of such sites for disposal

would have an unacceptable adverse impact on various resources,

including wildlife. EPA-New England proposes under Section 404(c) of

the Act to prohibit use of wetlands and other waters by the proposed

Nashua-Hudson Circumferential Highway (NHCH) as disposal sites for

dredged or fill material. The highway would directly eliminate 40 acres

of valuable wetlands and indirectly degrade or threaten extensive

additional wetland habitat. EPA-New England believes that filling the

wetlands and waters of the site may have an unacceptable adverse effect

on wildlife habitat and possibly municipal water supplies, and that

less environmentally damaging practicable alternatives may be

available.

Purpose of Public Notice

EPA seeks comment on this proposed determination to prohibit or

restrict the disposal of dredged or fill material into wetlands and

waters in the greater Nashua area associated with construction of the

proposed highway. See Solicitation of Comments, at the end of this

public notice, for further details.

Public Comment

Comments on or requests for additional copies of the proposed

determination should be submitted to the designated Record Clerk at the

EPA New England Regional Office, Lucy Delvalle, U.S. EPA, JFK Federal

Building, WWP, Boston, MA 02203-2211, (617) 565-3474.

EPA seeks comments concerning the issues enumerated under the

Solicitation of Comments at the end of the document. Copies of all

comments submitted in response to this notice, as well as the

administrative record for the proposed determination, will be available

for public inspection during normal working hours (9:00 a.m. to 5:00

p.m.) at the EPA Regional Office.

In accordance with EPA regulations at 40 CFR 231.4, the Regional

Administrator has decided that a hearing on this proposed 404(c)

determination would be in the public interest.

Hearing Date and Location

Monday, November 21, 1994 at 6 pm; Hudson Memorial School; 1

Memorial Drive; Hudson, NH.

Hearing Procedures

(a) written comments may be submitted prior to the hearing, and

both oral and written comments may be presented at the hearing.

(b) the Regional Administrator of EPA New England, or his designee,

will be the Presiding Officer at the hearing.

(c) 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 representative. Any person may present written statements or

recommendations for the hearing file prior to the time the hearing file

is closed to public submissions.

(d) the Presiding Officer will establish reasonable limits on the

nature, amount, or form of presentation of documentary material and

oral presentations. No cross examination of any hearing participant

shall be permitted, although the Presiding Officer may make appropriate

inquiries of any such participant.

(e) the hearing file will remain open for submission of written

comments until close of business, Tuesday, December 6, 1994.

FOR FURTHER INFORMATION CONTACT: Mr. Mark J. Kern, EPA Water Quality

Branch, JFK Federal Building, WWP, Boston, MA 02203-2211. (617) 565-

4426.

SUPPLEMENTARY INFORMATION AND BACKGROUND

I. Section 404(c) Procedure

The Clean Water Act, 33 U.S.C. 1251 et seq., prohibits the

discharge of pollutants, including dredged or fill material, into the

waters of the United States, including wetlands, except in compliance

with, among other requirements, section 404. Section 404 establishes a

federal permit program to regulate the discharge of dredged or fill

material subject to environmental regulations, known as the 404(b)(1)

Guidelines, developed by EPA in conjunction with the Army Corps of

Engineers (Corps). Except for section 404(c) actions, the Corps may

issue permits authorizing dredged and fill material discharges into

waters and wetlands if they comply with, among other requirements,

EPA's 404(b)(1) Guidelines. Section 404(c) authorizes EPA, after

providing notice and opportunity for hearing, to prohibit or restrict

filling waters of the United States where it determines that such use

would have an unacceptable adverse effect on wildlife or other

specified environmental interests. EPA can exercise 404(c) to ``veto''

a permit the Corps has decided to issue or to protect valuable aquatic

areas in the absence of any specific permit decision.

Regulations published in 40 CFR Part 231 establish the procedures

to be followed by EPA in exercising its section 404(c) authority.

Whenever the Regional Administrator has reason to believe that use of a

site may have an unacceptable adverse effect on one or more of the

pertinent resources, he may begin the process by notifying the Corps of

Engineers, the applicant, and the landowners of the aquatic sites (if

different from the applicant), that he intends to issue a proposed

determination under section 404(c). Unless one of these parties

persuades the Regional Administrator within 15 days that no

unacceptable adverse effects will occur, the Regional Administrator

publishes a notice in 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 may either withdraw the 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 Region to the

Assistant Administrator for Water at EPA Headquarters. The Assistant

Administrator makes the final decision affirming, modifying, or

rescinding the recommended determination.

II. Project Description and History

The New Hampshire Department of Transportation (DOT) proposes to

construct the Nashua-Hudson Circumferential Highway, a 13 mile limited

access toll road in the City of Nashua and the Towns of Hudson,

Litchfield and Merrimack in New Hampshire. A bypass highway, similar to

the NHCH, has been proposed for many years. For the past decade EPA has

raised environmental concerns regarding the highway. In its review of

an earlier 1984 EIS, EPA recommended permit denial due to concerns

about drinking water impacts at the Pennichuck Reservoir and wetland

losses. In 1990 the Army Corps of Engineers required a revised EIS to

focus on these issues.

During the past three years, EPA reviewed several draft EIS

documents, attended numerous meetings with DOT and the Corps, and

conducted many site visits. EPA consistently advised the Corps and

NHDOT that potential impacts to the Pennichuck Reservoir area,

wetlands, and other water resources must be avoided and reduced. In

1992, EPA sent several letters to the Corps stating concerns regarding

severity of the aquatic impacts, the need to examine other

alternatives, and the potential adverse drinking water impacts. EPA

alerted the Corps that these impacts could cause the highway to violate

the Guidelines.

The Corps released the revised draft EIS in October 1992. EPA

commented to the Corps in March 1993 that the proposed project violated

the 404(b)(1) Guidelines and should be denied a permit and that the

project was a candidate for prohibition under EPA's section 404(c)

authority. The Corps issued the final EIS in October 1993. EPA restated

its concerns in a November 1993 comment letter on the final EIS and

identified the highway as a likely candidate for action under section

404(c) of the Clean Water Act.

At several points in February and March 1994, the Corps indicated

its intent to issue a 404 permit for the NHCH, notwithstanding EPA's

objections. On March 31, 1994, EPA began the first step in the 404(c)

process by notifying DOT and the Corps that it believed the filling of

the wetlands and other waters may have an unacceptable adverse effect

on wildlife habitat and drinking water resources.

EPA subsequently sent the notification letter to the numerous

landowners in the right-of-way. The Corps, DOT and some landowners

submitted letters in response to the notice that EPA was commencing the

404(c) process. EPA also met with DOT and the Corps on May 13 and 26,

1994, and with approximately 20 landowners on June 23, 1994 in Hudson,

NH. Because these consultations did not convince the Regional

Administrator that the highway would not cause an unacceptable impact,

he is proceeding to this next step in the process.

III. Characteristics and Functions of the Site

The wetlands within the proposed alignment of the NHCH as well as

the 100+ square mile study area, as defined in the EIS, provide high

quality, diverse habitat for fish and wildlife, a travel corridor for

upland and wetland wildlife, food web production for on-site and

downstream biological communities, nutrient and pollutant uptake and

assimilation, floodwater storage, and flow moderation. Additionally,

they serve as an environment for fishing, hunting, bird watching and

other recreational activities. The EIS states that the vast majority of

the wetlands provide a wide spectrum of functions and values. Wildlife

habitat rated the highest at most of the sites.

Most of the wetlands in the study area are riparian systems which

border streams that flow to the Merrimack River, including Limit,

Second, Merrill, Glover, Chase, and Pennichuck Brooks. Wetlands

bordering streams provide special values. The streams transport organic

material from upstream areas in the watershed to the floodplain

wetlands, supporting food web production for on-site and downstream

biological communities. Riverine wetlands also assimilate nutrients and

pollutants, store floodwater, and moderate flows. These riparian

corridors are also valuable because of their high productivity and

travel use by wildlife.

The study area contains valuable wildlife habitat, and includes

over 200 different species of birds, mammals, amphibians and reptiles.

The New Hampshire Heritage Program considers over 20% of these species

uncommon, rare, threatened, or endangered in the state. Over 75% of the

species in the study area utilize or depend on wetlands or riparian

systems for survival.

Some of the more than 100 bird species that utilize the study area

include great blue heron and green-backed heron. Several wetland birds

are uncommon or threatened, including species such as American bittern

and eastern screech owl. Many of these aquatic species need large

tracts of land to survive, such as northern waterthrush and belted

kingfisher; others, such as red-shouldered hawk, depend greatly on

riparian wetland systems. The bald eagle, a federal endangered species,

uses this portion of the Merrimack River during winter for feeding,

roosting and as a travel corridor. A peregrine falcon, also a federal

endangered species, was observed at the Second Brook wetland complex

during its migratory patterns.

More than 40 mammal species live in the study area, including otter

and mink. These aquatic species also require large blocks of habitat in

which to forage and breed. Some of the mammal species in the study area

are considered uncommon or rare in the state, such as fisher, hoary

bat, and southern bog lemming.

Over 30 species of reptiles and amphibians also inhabit the project

site such as the uncommon blue spotted salamander; the vast majority of

these species need wetlands for various life functions. Several species

of amphibians in New Hampshire are obligate vernal pool species; that

is, they require vernal pools to breed and survive. Moreover, some of

these species, which can live 20 to 25 years, return to their natal

pools each year to breed. Therefore, destruction of these pools may

eliminate entire breeding populations of these animals. For example,

one obligate species, spotted salamander, was observed at numerous

vernal pools directly on the proposed alignment. Another obligate

species, blue spotted salamander, a state listed species, was also

observed at several locations on the proposed alignment. Painted

turtles and other species were also observed using these valuable

aquatic systems.

Fish use wetlands as nursery areas and most important recreational

fishes spawn in wetlands. Second Brook and Glover Brook are stocked

with trout; the Merrimack River itself likely supports more than 30

fish species.

Area-sensitive species such as mink and otter as well as forest

interior birds, such as red-shouldered hawk, broad-winged hawk,

northern waterthrush, Canada warbler, barred owl, and black and white

warbler live in the study area. These wetland species typically require

large tracts for breeding and decline sharply with habitat

fragmentation and reductions in forest patch sizes.

Several large blocks of habitat in the study area support these

interior, secretive animals. These habitats, generally associated with

the large wetland complexes, are primarily undeveloped tracts of land

and water with several corridors to allow free range of movement. The

Second Brook area and lands to the east form a habitat block of

approximately 5,000 to 10,000 acres, uncommonly large for this portion

of New Hampshire. Large wildlife habitats also exist to the north in

Londonderry and Litchfield.

The Merrimack River, which flows north to south, dominates the

hydrology of the study area and is fed by numerous tributaries flowing

east to west. Since most of the proposed highway heads north and south,

the 13 mile road would inevitably cross and fill a number of

tributaries and sub-tributaries to the Merrimack.

Wetlands at the site help to maintain and/or improve water quality,

as well as regulate water quantity. Wetland plants and soil trap,

assimilate, and transform pollutants entering the watershed. Wetland

trees and shrubs retard floodwater, decreasing downstream flood stages.

The basal flow contribution from wetlands to streams during summer

stress periods provides water at the most important time of year.

The Merrimack River is an existing and future source of water

supply for a number of communities in New Hampshire and Massachusetts.

In fact, the Merrimack River is a supplemental and emergency supply

source for Nashua, although the intake is upstream from the proposed

project. The Merrimack River is currently the primary drinking water

source for a number of communities in Massachusetts (e.g. Lawrence,

Lowell, Methuen, and Tewksbury), all of which are downstream of the

proposed project and take raw water directly from the Merrimack River,

just prior to treatment. Another community, Andover, MA, augments its

primary supply by pumping water from the Merrimack. In addition, the

Merrimack River has been considered as a future drinking water supply

source for several additional communities, many of which are downstream

(e.g. Haverhill, MA, North Andover, MA) of the proposed project.

The NHCH would result in approximately 1.25 miles of roadway and

two proposed interchanges within the Pennichuck Brook drainage

watershed. Pennichuck Brook and ponds serve as the primary public water

supply for the City of Nashua and for sections of other neighboring

communities. There are many small public water supply systems that rely

on drilled wells in Hudson and Litchfield. In addition, the Southern

New Hampshire Water Company has a high yield wellfield in southern

Litchfield.

EPA, New Hampshire, and Massachusetts, having recognized the

important environmental resources in the area, have been working to

implement a multi-million dollar initiative to protect the aquatic

resources of the Merrimack River Watershed. Considerable time, money

and effort have been expended during the past three years to protect

water quality and wildlife habitat. This project would adversely affect

the very resources that EPA has targeted for protection with this

watershed initiative.

IV. Basis of the Proposed Determination

A. Section 404(c) Criteria

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. EPA's regulations define ``unacceptable

adverse effect'' at 40 CFR 231.2(e) as:

Impact on an aquatic or wetland ecosystem which is likely to

result in significant degradation of municipal water supplies

(including surface or groundwater) 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).

One of the basic functions of section 404(c) is to police the

application of the section 404(b)(1) Guidelines. Those portions of the

Guidelines relating to the analysis of less environmentally damaging

practicable alternatives and significant degradation of waters of the

United States are particularly important in the evaluation of

unacceptability of environmental impacts in this case. The Guidelines

forbid the discharge of dredged or fill material into waters of the

United States if, among other requirements, there is a less

environmentally damaging practicable alternative or if it would cause

or contribute to significant degradation of waters of the United

States.

B. Adverse Impacts of the Proposed Project

Direct Impacts to Wildlife

The project as currently proposed by DOT would directly fill

approximately 40 acres of wetlands.1 Destruction of wetland

acreage correlates with loss of functions and values including habitat

destruction, reduced primary and secondary productivity and alteration

of hydrological functions. The NHCH would also cross 18 streams,

causing the direct loss of 3,000 feet of stream bed, place 200 acres of

roadway on top of fourteen different high yield aquifers, and eliminate

600 acres of undeveloped upland habitat.

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\1\All of the full build alternatives described in the EIS would

cause similar long term impacts to the environment. Therefore, the

following summary is generally applicable to the other full build

options as well.

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The proposed project would disrupt high quality aquatic ecosystems

already experiencing stress from encroaching development in southern

New Hampshire. The large direct loss of wetlands would cause the death

and displacement of wildlife, and reduce water quality functions.

Uncommon species would suffer the most, especially area sensitive

animals, species dependent on riparian habitats, and smaller animals

that are either less mobile or depend on vernal pools.

The project would destroy at least 5 vernal pools. Vernal pools are

especially valuable to wildlife, particularly as breeding areas for

amphibians. Given the strong fidelity of numerous aquatic species to

their natal ponds, the direct destruction of the pools results in the

loss of a large and important wildlife resource. Several populations of

different species would be lost, including spotted salamander and the

rare state listed blue-spotted salamander.

The highway would impact one of the last essentially intact

ecosystems remaining in the greater Nashua area and cause impacts well

beyond the footprint of the fill. Numerous streams and wetlands would

be bisected, thereby altering the hydrology, disrupting species

movement and increasing predation of uncommon species.

Indirect Impacts to Wildlife

In addition to direct losses, the NHCH would degrade wetlands,

including vernal pools, that would border the proposed highway. When a

large highway fragments habitat blocks, common species proliferate at

the expense of the more unusual wetland wildlife species. Fragmentation

causes increased nest predation and parasitism to songbird populations.

Large highways act as funnels moving some predators, such as red fox

and crows, into previously buffered wetland interior areas.

Riparian corridors help maintain viable wildlife populations by

adding to the natural connectivity of habitats already fragmented by

development. Far ranging aquatic mammals inhabiting the site which

often travel along streams, such as fisher and mink, would be impacted

adversely. While such species are capable of crossing highways, they

often avoid areas of human disturbance. Fast moving vehicles would kill

some of these individuals which venture onto the highway especially at

night.

Large highways restrict wildlife movement and interfere with the

natural exchange of genetic material. A large highway with fences,

broken canopy, and vehicle activity throughout much of the night

presents a significant barrier to the movement patterns of animals,

resulting in increased direct mortality and avoidance behavior. Because

of its size and projected high traffic volume, this highway will likely

act as a barrier to restrict the movement of numerous wetland species

across the landscape, especially small mammals, reptiles, and

amphibians.

DOT has asserted that: (1) local roads and other disturbances have

already fragmented the area to some degree; (2) the undeveloped block

of habitat near Second Brook is actually 10,000 acres, not 3,000 or

5,000 acres and the road would not pass through the center of it; (3)

the bridges and culverts would provide for the movement of animals; (4)

DOT's consultant conducted a site specific analysis of the habitats and

wildlife; and (5) the vernal pools, several of which are impaired, do

not contain any special species. EPA agrees in part with some of these

statements, but nevertheless believes the NHCH could have unacceptable

effects on wildlife. EPA is, however, especially interested in

receiving comment on the five issues raised above.

In considering DOT's statements, EPA has been mindful of several

factors. First, while there are local roads in the area, most of them

are roughly 25' wide and have tree canopies which cover most of the

road. Fragmentation impacts are generally proportional to the size of

the interruption. A 250' wide highway such as the NHCH, with activity

throughout the day and night would normally cause an order of magnitude

or greater impact than existing conditions.

Second, EPA agrees that the overall habitat block approximates

10,000 acres, but this fact only underscores the value of the area for

wildlife. That a roadway further east could cross more of the center of

the block does not change the severe impacts of a highway in the

present proposed location. Third, we hope that the bridges and culverts

would help with animal movement patterns; however, despite these

efforts less than 2% of the roadway will allow passage and, in any

event, there is little known regarding animal use of oversized

culverts. These passages would not assist many of the small species

searching for food or breeding sites that cannot find or travel to the

nearest potential passageway. Other long ranging species can and will

cross highways without using a culvert and are subject to roadkill.

While the EIS provided much useful information, it contained

relatively few site specific wildlife observations and the likely

impacts of the highway. Thus, EPA contracted with wildlife experts to

gain site specific information lacking in the EIS. Preliminary results

for reptiles and amphibians confirm that many of the vernal pools the

NHCH would impact provide high quality breeding habitat for many

wetland species, including a rare state listed species.

Secondary and Cumulative Impacts

Construction of the highway may also spur secondary development

along the route which will degrade additional aquatic resources. The

highway would allow quicker access to the region, encouraging greater

development especially for certain types of projects. Location and

access are major siting criteria for many types of commercial and

industrial development. In addition, these projects normally require

reasonably large tracts of land increasing the prospects of adverse

impacts to wetland habitat. Over time, additional point and non-point

contamination sources may degrade the quality of both surface and

groundwater supply resources.

Based on the number of permit applications that EPA, the Corps, and

the State have reviewed the past 10 years, the greater Nashua area has

experienced some of the most severe cumulative loss of aquatic habitat

in New England. The direct and indirect impacts from the proposed

highway would aggravate the severe cumulative loss of habitat and

depletion of biodiversity that has occurred. Furthermore, other large

highways proposed in this vicinity, such as the Manchester Airport

highway, the Nashua southwest bypass, and the Windham-Salem Route 111

bypass are currently in the planning stages. If built, these highways

would result in additional cumulative impacts to the wetlands and

streams that flow into this portion of the Merrimack River.

Water Quality Impacts

The NHCH would also reduce overall water quality as a result of

temporary construction related adverse impacts, the long-term adverse

impacts from contamination from highway stormwater runoff, the

anticipated secondary and cumulative impacts associated with newly

constructed highways, and the potential for bulk chemical or fuel

spills. Greater amounts of sediment, nutrients, and other pollutants

associated with urban runoff, such as heavy metals, oil and grease, and

organic contaminants could enter groundwater and tributary streams and

flow into the Merrimack River. Sedimentation results in turbidity and

often transports pesticides, heavy metals and other toxins into the

streams, which adversely affects aquatic life.

EPA is aware that DOT proposes to make a substantial effort to

reduce impacts to drinking water resources. It plans to install a

closed drainage system near the Pennichuck water supply that diverts a

majority of the runoff to a detention pond downstream of the intake. It

also proposes to divert drainage from the F.E. Everett Turnpike (not

part of the NHCH), several bridges (including crossing the Merrimack

River), several interchanges, including the Turnpike and Route 102, and

other locations, and discharge the contaminated water into lined

detention basins for water quality renovation, prior to being

discharged to a surface water source (e.g. the Merrimack River or an

associated tributary). DOT also states it will carefully maintain these

structures and ponds and designate a Environmental Coordinator to

oversee the implementation of the plans. In addition, there has been

discussion about implementing some type of long-term water quality

monitoring plan to evaluate the effectiveness of selected detention

basins.

While these measures will help considerably, and in the case of the

F.E. Everett Turnpike, actually improve an existing situation, the

highway would unavoidably increase overall pollution to these water

supply sources. The NHCH would place over 200 acres of land under

pavement and impact a number of surface and groundwater public water

supplies by adding contaminants to these aquatic systems. Stormwater

runoff from the highway would degrade both surface and groundwater.

While mitigation measures could reduce these impacts, it is difficult

to control fully the pollutants generated by a large highway crossing

many streams and wetlands.

For example, long-term problems such as accidents, spills,

maintenance and disposal would remain. Detention ponds hopefully remove

the majority of the pollutants, but some pollution passes through and

enters aquatic systems. Over time, detention ponds may become a sink of

pollution unless properly and frequently dredged and maintained. In

time, impermeable lining material may be altered in such a way that it

could be functioning less efficiently. Also, numerous portions of the

highway would drain directly to groundwater, wetlands and streams.

Secondary development in the watershed, in part spurred by the

highway, would worsen water quality concerns. Historical studies and a

recent planning study (I-190/Wachusett Reservoir Water Supply

Protection Study, 1992) support the fact that the presence of

interstate highways encourages development and induces growth. Highways

provide the necessary access to areas where development has not

occurred, as well as additional access to existing developed areas. The

Pennichuck Corporation, which owns and operates the Pennichuck Water

Supply, controls only 11% (approximately 1800 acres) of the entire

Pennichuck Brook watershed. In fact, the Pennichuck Corporation has

sold nearly 200 acres of watershed land in recent years and EPA

anticipates continued development within the watershed.

The NHCH could directly or indirectly adversely impact a number of

groundwater resources, particularly in the communities of Hudson and

Litchfield along the project corridor. The increased secondary and

cumulative growth will be concentrated at or in the vicinity of the

proposed interchanges, within sensitive water supply resource areas.

Groundwater degradation is a nearly inevitable consequence of increased

development, increased land use, and industrial development.

Additionally, there is no assurance that new interchanges would not be

constructed in the future along this proposed limited access highway,

which would further increase developmental pressures.

The FEIS also concludes that any of the full or partial build

alternatives will degrade or pose a contamination threat to surface

water and groundwater resources as a result of stormwater runoff, the

possibility of accidental spills, and short-term construction impacts.

The FEIS presents these impacts to water supply resources as being

essentially unavoidable and states that these potential adverse impacts

should be minimized and mitigated, primarily through the use of Best

Management Practices (BMPs) and other structural means. However, the

future responsibility of mitigating any adverse impacts to water supply

resources from accelerated or enhanced associated development would be

deferred to local zoning and planning boards.

C. Project Need and Alternatives

There is clearly a need to reduce or minimize traffic congestion in

the greater Nashua area and the Central Business District (CBD) in

particular. This is especially true at the Taylor's Falls Bridge, the

only crossing of the Merrimack River in New Hampshire south of

Manchester. Several primary routes converge on the bridge--Routes 111,

102, and 3A. However, no alternative, including the NHCH, will solve

all the traffic difficulties; under all options traffic problems

remain.

EPA requests public comment on the effectiveness of various

alternatives to reduce traffic problems in the Nashua area, including

the NHCH. We also request comment on other alternatives or combinations

of options which would cause considerably less environmental damage,

including partial build options, mass transit, reducing existing

traffic during rush hours, and improving or expanding existing local

roads (see discussion below).

Background

EPA concurred with the project purpose as originally defined by the

Corps: ``to provide a transportation improvement to assist east-west

traffic movements and to reduce congestion on existing bridges and

streets in and near the central business districts of Nashua and Hudson

by adding new crossings of the Merrimack River.'' However, the EIS

includes the additional ``goal'' of reducing traffic volumes for the

CBD in the year 2010 to a level less than existing traffic levels, as

specifically measured by the percent change in LOS F miles (explained

below) from 1990 to 2010. Alternatives which did not meet this specific

goal were eliminated as being ``impracticable.'' Because this test for

practicability is constrained in space (central business district),

time (compares two specific years of analysis) and measure (percentage

of miles of level of service F), it artificially eliminated certain

alternatives from further consideration.

EPA believes the basic project purpose, in keeping with the

requirements of the Guidelines, would be: to reduce a large portion of

the traffic congestion in the greater Nashua area (as defined in the

EIS), with greater importance being given to the Central Business

District. This basic project purpose would provide a sound basis to

evaluate and judge the practicability of various options.

Traffic engineers analyze traffic conditions and future projections

using a number of different techniques, including the following:

1. Average daily traffic volume (ADT) for roadway segments

2. Level of Service (LOS)--for roadway segments

3. Level of Service (LOS)--for intersections

4. Free-Flow and Congested Vehicle Hours of Travel (VHT)

Typically highway departments use a peak-hour analysis of existing

and projected conditions to determine the need for highway

improvements. Existing and future ``Levels of Service'' are analyzed.

LOS is a qualitative measure describing operational conditions assigned

a letter A-F. LOS A and B represent relatively little traffic and LOS E

and F represent heavy traffic conditions and vehicular delay for at

least peak hours (prime commuting hours).

All of these methods were used with Nashua to predict future

traffic conditions (2010) in three separate locations:

1. The central business district (CBD)

2. The F.E. Everett Turnpike (Turnpike)

3. Roadway segments bordering the CBD

DOT's Traffic Projections

The proposed NHCH provides some traffic relief for the central

business district. Using DOT data and models, the full build would

remove LOS F' in the CBD (F' is worse than F), while, for example, if a

partial build highway from Route 102 north to the Turnpike were

constructed, 1.2 miles of LOS F' would remain.

In the CBD in 2010 with the NHCH built, 4.5 miles of traffic

congestion (LOS F', F, & E) would result. Under the no build condition,

8.9 miles of congestion would remain (LOS F', F, & E).

However, the proposed NHCH does not provide substantial traffic

relief for the entire study area. Using DOT's data and models, any

traffic measurement--ADT, LOS for intersections, LOS for road

segments--shows modest traffic improvements for the NHCH. In the study

area in 2010, 27.3 miles of congestion (LOS E, F, and F') would remain.

Under a no build alternative 39.7 miles of congestion would result.

When one examines the vehicle hours of travel (VHT), it appears

that the partial build option supplies a substantial portion of traffic

relief that the NHCH would provide. The percent of free-flow traffic

would be 69% for the NHCH verses 66% for the partial build from Route

102 north to the Turnpike. The following table summarizes the congested

and free-flow hours of travel:

------------------------------------------------------------------------

Congested

Alternative Free-flow VHT VHT

------------------------------------------------------------------------

No-Build (2010)......................... 169,172 (50.1%) 168,416

Full Build (2010)....................... 162,461 (68.5%) 74,727

Partial Build (2010).................... 164,646 (65.7%) 86,140

------------------------------------------------------------------------

DOT's models may also overestimate traffic benefits from a full

build highway. For example, the model assumes the same future traffic

growth in the study area, with or without the highway. EPA's experience

with other highways in New England suggests that they do alter land use

and development patterns. We have no reason to believe that this

highway would be any different. If the highway generates more

development, the corresponding increase in traffic could increase

levels beyond current projections for the full build (or reduce

projections for the no build option). We request comment from the

public on whether the highway will likely spur additional development

and traffic growth.

Increased traffic in the study area resulting from the NHCH could

place additional burdens on the two North-South roads in the region, I-

93 and especially the F.E. Everett Turnpike. Both of these roads are

proposed for widening in the near future, and major portions of the

Turnpike will be at LOS F conditions even after expansion. Even with

the EIS assuming no increased growth in traffic caused by the highway,

the EIS shows that parts of the Turnpike already experiencing LOS F

conditions will receive greater traffic volumes once the NHCH is in

place. This condition would worsen if the NHCH generates additional

traffic to the area.

The current analysis gives little weight to toll avoidance.

However, this is a factor that could cause the full build to reduce

congestion less than projected in the CBD because the Taylor's Falls

Bridge, the primary focal point of traffic in the CBD, would be the

only non-toll road remaining in New Hampshire to cross the Merrimack

River south of Manchester. (The Sagamore Bridge, currently free, would

require a toll once it is part of the NHCH.) Some percentage of

vehicles currently using the Sagamore Bridge would avoid paying the

toll by using either the Taylor's Falls Bridge, or the Tyngsborough

Bridge, five miles south in Massachusetts. The EIS did not discuss the

issue of tolls and toll avoidance, and EPA requests comment on these

issues.

In summary, the proposed highway would only provide partial traffic

relief for the overall traffic patterns in the greater Nashua area.

Other measures of reducing traffic volumes, which cause much less

impact to the environment, may also provide some portion of the relief

that the NHCH would provide. Such measures and combinations of measures

could include partial build options, traffic demand management measures

(TDM), traffic systems management (TSM), and local improvements.

Partial Build Options

Partial build alternatives would involve constructing one or more

segments of the NHCH but something short of the full highway proposed

by DOT. All the partial build alternatives discussed below have

substantially less impact to wildlife because the partial build options

would not fragment the 10,000 acre habitat block, would not destroy

several valuable vernal pools, and it would avoid nine streams and

other valuable wetlands. Partial build alternatives include:

Southern Bridge. This option would be an expansion of the

Sagamore bridge in the south from the F.E. Everett Turnpike in Nashua

to Route 3A in Hudson, allowing direct access from the Turnpike across

the Merrimack River to Hudson.

Two Bridges. This option would include expansion of the

Sagamore bridge in the south from the F.E. Everett Turnpike in Nashua

to Route 3A in Hudson and construction of a new bridge in the north

also from the F.E. Everett Turnpike in Merrimack to Route 3A in

Litchfield. Thus, it would provide a new crossing of the Merrimack

River between Nashua and Manchester.

Partial Build to Route 102. Identical to the above

alternative, this option would also extend the northern section two

miles east to Route 102 in Litchfield.

Partial Build to Route 111. This alternative is the same

as above, plus an extension of the northern section another four miles

southeast to Route 111.

Partial build alternatives, as measured by LOS of segments, appear

to do relatively little to improve traffic in the CBD. However, as

measured by average daily traffic, the partial build option from Route

102 north to the F.E. Everett Turnpike, for example, would provide over

50% of the traffic benefits of the full build in the CBD and over 75%

of the traffic benefits of the full build for the entire traffic

network. DOT states in several documents that a bridge to the north

would provide traffic benefits to the study area.

However, DOT has also stated that the partial build options will

not provide traffic relief or could even make the traffic situation

worse, including adding more traffic on local roads, such as Route 3A.

We understand that local roads in the area will be busier with more

cars in the future, but that may be true if the NHCH is built as well.

EPA seeks comment on this issue as well.

TDM/TSM Measures

Traffic demand measures (TDM) reduce the number of vehicles on

roadways especially during peak travel times when the worst congestion

occurs. Traffic system management (TSM) refers to infrastructure

improvements to enhance the efficiency of vehicle movement.

DOT and the Nashua Regional Planning Commission have already made

important strides in acquiring funds in recent years to pursue some

TDM/TSM measures. Some of the projects which have been funded or for

which they are pursuing funding include:

1. improving traffic circulation at Taylor's Falls Bridge

2. constructing an intermodal transit facility (downtown Nashua)

3. expanding existing and building new park and ride facilities

4. completing a statewide plan for TDM, mass transit, and high

occupancy vehicle lanes (HOV)

5. buying old railroad corridors for bike and walking trails

6. building an HOV lane at the Bedford toll--2 year trial

7. providing free shuttle bus service along Main Street in Nashua for 2

years

8. improving downtown traffic circulation in Nashua

Additional and expanded TDM and planning techniques for managing

and reducing peak congestion, which appear to have the greatest

potential in the greater Nashua area include:

(1) organized operation of mini-vans for car-pooling and ride-

sharing;

(2) better management, operation, and extension of the local bus

system;

(3) changing future land use development patterns to encourage

cluster developments;

(4) parking disincentives;

(5) removing disincentives to implement and utilize mass transit;

(6) extending rail service to the greater Nashua and Manchester

area from Boston;

(7) telecommunications in lieu of travel; and

(8) incentives to business for implementing staggered work hours

and many of the measures listed above.

It is important that TDM measures be combined with TSM to prevent

the improved mobility from attracting new users and leading to future

congestion problems. Traffic flow improvements could include signal

system timing/optimization, addition of turning lanes, restrictions of

single occupant vehicles (to enhance HOV operations and attract users),

fringe park and ride lots, and pedestrian/non-motorized improvements.

Local road improvements

Local improvements include anything that expands capacity on the

basic existing traffic network, for example, improving traffic flow

across the Taylor's Falls Bridge. While some TDM/TSM measures could

also be listed under this category, other local improvements could

involve adding additional lanes, overpasses, mini-bypasses, or other

structural changes. Since the EIS does not focus on this issue very

much, EPA would appreciate comments on needed improvements to the

existing traffic network.

D. Mitigation

The current mitigation plan consists of avoiding, minimizing and

compensating for environmental losses. DOT has endeavored to minimize

impacts by proposing: 1. two bridges and five box culverts at some of

the stream locations; 2. closed drainage systems to divert and treat

runoff in order to minimize impacts to drinking water resources; 3. 26'

median widths at wetland locations; 4. 2:1 side slopes to minimize

impacts; and 5. two retaining walls to reduce impacts.

The compensatory mitigation portions of the plan consist of the

following: 1. attempted creation or restoration of 44 acres of wetlands

mainly at the former Benson's Wild Animal Farm; 2. bringing Merrill

Brook above ground at Benson's; 3. constructing water detention basins

adjacent to the roadway; 4. preserving an additional 100 acres at

Benson's and 135 acres along an old alignment that DOT owns in the

southern portion of the site; and 5. protecting water supply by

capturing part of the runoff from the existing F.E. Everett Turnpike.

In general, DOT has proposed a substantial mitigation plan,

especially to minimize impacts. However, EPA believes that the

environmental benefits, especially for wildlife, of the proposed

compensation plan fall well short of the impacts the NHCH would cause.

While creation and restoration may be beneficial to the aquatic

environment, especially when applied at a low value site in a

relatively undisturbed landscape setting, wetland creation suffers from

both theoretical limitations and practical problems.

First, the poor track record associated with wetland creation

suggests that it would be unwise to rely on this mitigation to provide

all of the intended benefits. Some wetland functions, such as flood

storage, can normally be replicated successfully. Attempts to mitigate

wildlife habitat losses have met with mixed success, and benefit only a

few select species. There has been little or no demonstrated ability to

recreate other wetland values such as groundwater discharge and

recharge or the complex interactions of water, soil and plants involved

in the uptake and transformation of nutrients and pollutants.

DOT has made an effort to address this uncertainty by offering to

construct the mitigation at Benson's before the highway can proceed.

This would allow the success or failure at Benson's to be evaluated

with greater certainty. EPA believes that demonstrating success at the

Benson's site or other selected sites prior to highway construction

makes sense and should be part of any mitigation plan should the NHCH

be partially or fully constructed. However, even if successful, it

would not alter the insufficiency of the current mitigation plan. The

creation site borders 3 roads, including the busy Route 111. The

potential for human alteration and disturbance, from off road vehicles

and other human intrusion, would remain, as well as the impacts to

wildlife from fragmentation and being hit by cars and trucks. Thus,

restoring the site would only offset a modest amount of the impacts the

highway would cause to uncommon species in the study area.

Second, the proposed mitigation would not replace many lost

functions and values. It would not compensate for fragmenting one of

the last large undeveloped tracts remaining in the study area, which

provides an oasis for many species of wildlife. The plan would not

replace riparian streams, floodplains or the spectrum of natural

resource values these areas provide. Also, it would do little to offset

the large indirect, secondary, and cumulative impacts the highway would

inevitably cause or contribute to.

While preservation cannot replace the direct and indirect impacts

from fragmentation, it can reduce the likely secondary and cumulative

impacts. However, the current preservation proposal appears

insufficient to provide substantial environmental benefits. The 100

acres at Benson's, while useful to buffer the creation area, would be

located between the new highway and the developed portions of Hudson,

providing only modest wildlife access and benefits. The 135 acres,

which is part of the old right-of-way, protects some useful habitat;

however, it is a long linear parcel and some of it lies inside of or

adjacent to the NHCH.

Three areas appear to be especially valuable and vulnerable to

secondary impacts in the future: (1) the 5,000-10,000 acre block in the

southeastern portion of the study area; (2) a large wetland and upland

complex in the southern part of Litchfield and Londonderry, containing

several rare species and bordering other protected lands; and (3)

floodplain forest and farmland along the Merrimack River in Litchfield.

We request comment on the adequacy of the current preservation package

and whether additional preservation options, such as portions of those

described above, could offset the likely secondary and cumulative

impacts of the highway.

After considering the project's impacts and the uneven track record

of wetland creation and enhancement projects to compensate for projects

involving much less severe impacts, EPA has concluded that the adverse

effects of the highway will be difficult to mitigate sufficiently to

render them environmentally acceptable. The mitigation plan described

in the EIS and other documents would not compensate for the severe

impacts to wildlife which the project would cause.

V. Proposed Determination

Based on the current proposal, the Regional Administrator proposes

to recommend that the discharge of dredged or fill material into

wetlands and other waters associated with the Nashua-Hudson

Circumferential Highway be prohibited. This action would not prohibit

other uses of the land on the alignment, nor would it preclude possible

permitting of partial build alternatives.

This proposed determination is based primarily on the adverse

impacts to wildlife. EPA has already concluded and stated in previous

letters that the project would cause or contribute to significant

degradation of waters of the United States and violate the

Sec. 404(b)(1) Guidelines. It would directly destroy 40 acres of

wetlands in an area beset with cumulative impacts, and will degrade

additional wetlands through secondary and indirect impacts. Based on

current information, the Regional Administrator has reason to believe

that the adverse impacts of the Nashua-Hudson Circumferential Highway

would be unacceptable. Moreover, these impacts may be in part

avoidable.

VI. Solicitation of Comments

EPA solicits comments on all issues discussed in this notice. In

particular, we request information on the likely adverse impacts to

wildlife and other functional values of the streams and wetlands at the

site. We also seek information pertaining to plants, animals and

hydrology of the site and adjacent lands. All studies of the natural

resource values of the area or informal observations would be helpful.

Information on species or communities of regional and/or statewide

importance would be especially useful.

While the significant loss of wildlife habitat serves as EPA's main

basis for this proposed 404(c) determination, New England has

additional concerns with the proposed project including water quality

and drinking water impacts, alternatives, and mitigation. In

particular, EPA solicits comments on particular aspects of the project

including:

(1) The presence and likely impacts to fish and wildlife resources

using the study area;

(2) The potential for indirect impacts from the NHCH to fish and

wildlife resources, such as fragmentation, noise and roadkill;

(3) The extent to which local roads and other disturbances have or

have not fragmented the study area;

(4) The extent to which the bridges and culverts would or would not

provide for the movement of animals;

(5) The potential for secondary wetland losses, through additional

development that would benefit from access to the highway;

(6) Evidence of past and likely future cumulative impacts to the

aquatic environment;

(7) Information on potential for drinking water and other water

quality impacts;

(8) Information on whether the new highway would generate

additional traffic and land use changes compared to a no-build

alternative;

(9) The extent to which additional traffic would travel across the

Taylor's Falls Bridge and the Tyngsborough Bridge to avoid paying tolls

on the Sagamore Bridge or the northern bridge.

(10) The extent to which partial build options would provide

traffic relief or make the traffic situation worse, including adding

more traffic on local roads, such as Route 3A;

(11) The effectiveness or lack of effectiveness of the NHCH in

reducing traffic congestion;

(12) Information on the availability of less environmentally

damaging practicable alternatives to satisfy the basic project

purpose--reducing traffic congestion in the greater Nashua area--taking

into account cost, technology, and logistics;

(13) The extent to which local improvements, such as adding

additional lanes, overpasses, and mini-bypasses, could provide traffic

relief;

(14) The effectiveness of TDM/TSM in reducing traffic under a no

build or partial build alternative. If a full build is permitted, what

TDM/TSM solutions should be implemented and why?;

(15) Information on the current mitigation plan and whether it

would replace the functions and values of the aquatic habitats

destroyed or degraded;

(16) The potential for a different or supplemental mitigation plan

which could reduce the direct and indirect impacts of the NHCH to an

environmentally acceptable level. Mitigation could involve avoidance,

by bridging for example, additional wetland creation, habitat

preservation, additional water quality mitigation measures, watershed

and aquifer preservation, up-front success requirements or other

factors. Recommendations of appropriate sites are encouraged.

(17) The current preservation package and additional preservation

options, and whether the protection could offset the likely secondary

and cumulative impacts of the highway.

The record will remain open for comments until December 6, 1994.

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 use of the

wetlands as a disposal site for construction of Nashua-Hudson

Circumferential Highway.

For further information contact: Mr. Mark J. Kern, U.S. E.P.A., JFK

Federal Building, WWP, Boston, MA 02203-2211, (617) 565-4426.

John P. DeVillars,

Regional Administrator, New England Region.

[FR Doc. 94-26510 Filed 10-25-94; 8:45 am]

BILLING CODE 6560-50-P