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Cutrale Farms, Inc. Comment Letter
June 14, 2001
District Engineer
Department of the Army
Jacksonville District Corps of Engineers
Merritt Island Regulatory Field Office
2460 North Courtenay Parkway, Suite 216
Merritt Island, FL 32953-4192
Atten: Sharon.L.Tyson@saj02.usace.army.mil
Re: Denial of Permit Application No. 200001479 (IP-ST)
Cutrale Farms, Inc./The Amelia Project - Okeechobee County, FL
http://www.saj.usace.army.mil/permit/PermitPNs/200001479.pdf
Dear District Engineer,
I am a member of the public and an interested party. I am submitting the following comments pertaining to the referenced permit application advertised by Public Notice dated May 30, 2001, with a deadline for public comment of June 29, 2001. Numerous deficiencies are associated with the Public Notice for the referenced project. Those deficiencies prevent an accurate determination of the full impacts of the proposed project. Despite those deficiencies, it is obvious that the proposed project poses serious water quality and water quantity threats to the proposed restoration of the Everglades, which involves $8 billion in federal tax dollars. Consequently, I am forwarding copies of my comments to federal elected officials, so that they may determine why the U. S. Army Corps of Engineers (COE), as the agency overseeing the so-called "Comprehensive" Everglades "Restoration" Plan, has determined that this proposed 14,000-acre project in the Everglades watershed does not require an Environmental Impact Statement (EIS). By copy of this letter I also am requesting actual notice (via electronic posting) of any agency action or proposed agency action taken on this proposed project, or any related permit application(s), including related applications submitted or resubmitted in the future, under the same or different names.
Before I provide comments on the proposed conversion of "cattle and dairy" to "citrus production", I am including the following brief synopsis of my scholastic and professional background, to emphasize the validity of my comments. I received a BS and MS from Florida State University. The topic of my masters research was the influence of hydrologic conditions on wetland and aquatic plant community distribution. Immediately upon completion of my masters degree I was hired by the Florida Department of Environmental Regulation (DER - now known as the Florida Department of Environmental Protection - DEP), where I worked for approximately 10 years on various aspects of wetland and aquatic ecosystems throughout Florida.
During and subsequent to my employment with governmental agencies in Florida, I served as an expert witness for countless enforcement and permitting cases and potential cases throughout State of Florida, in addition to overseeing numerous large "restoration" projects. I then returned to the academic realm to obtain my doctoral degree. The foundation of my groundwater flow, hydrogeology/geochemistry background was graduate-level courses at the University of South Florida (Departments of Engineering and Geology). That university has one of the most prominent programs in karst hydrology in the nation (possibly the world). I then transferred to the University of Georgia to complete additional courses focusing on forest hydrology, pathology and ecology. That extensive multidisciplinary background enabled me to solve my complex doctoral research problem.
My research for the past 10 years has involved surfacewater/groundwater interactions and the ecological impacts of anthropogenic groundwater perturbations in the southeastern Coastal Plain. (The proposed project is within the Coastal Plain.) I have published approximately 30 peer-reviewed papers (including contributing a book chapter on surfacewater/groundwater interactions), have received several awards for my hydrologic contributions to communities, and have been invited to present papers at several International Hydrologic Conferences. My research and publications have involved the types of wetlands that occur throughout the referenced project site and the area of potential impact beyond the property boundaries of the property boundaries. Consequently, my background and training directly relate to the specific wetlands on the site of the proposed project and throughout the area of potential impact.
COMMENTS ON PERMIT APPLICATION NO. 200001479 (IP-ST)
CUTRALE FARMS, INC./THE AMELIA PROJECT
A. TO WHOM IT MAY CONCERN:
This section of the Public Notice states, in its entirety:
"This district has received an application for a Department of the Army permit pursuant to Section 404 of the Clean Water Act (33 U. S. C. 1344) as described below."
1. Does the Florida Corps of Engineers (COE) publish a Public Notice on every application it receives, regardless of whether the permit applications provide the basic, minimum information to be deemed complete pursuant to the requirements Section 404 of the Clean Water Act (33 USC 1344)? This appears to be the case, as the referenced application appears to be a prime example of an application that lacks such information (in keeping with all of those I have been exposed to through the Florida COE's Public Notice process). The referenced Public Notice lacks even the basic, minimum information that is necessary for other agencies and the public to conduct a meaningful evaluation of the impacts of the proposed project. The referenced Public Notice seems to be more along the lines of "We received another permit application today - here it is!" This impression is re-enforced by the "NOTE" on the second page of the Public Notice, which states:
"This Public Notice is being issued based on information furnished by the applicant. The Corps jurisdictional line has been verified."
2. I'm presuming that the second sentence means that the COE verified the jurisdictional line. Was the "Corps jurisdictional line" the only aspect of the application that the COE verified?
Did the COE verify that the proposed purpose of "citrus production" was a bona fide agricultural venture?
Did the COE verify that the "system of ditches ... installed to allow for the growth of vegetables and more recently hay and pasture grasses" were dredged in accordance with the law, and not violations of the law, subject to enforcement action?
Did the COE verify that the applicant had the technical expertise to "enhance", "create/restore", and "preserve" the wetlands, as proposed in the public notice?
Did the COE consult Section 404 criteria required for issuance of a permit, to determine if the referenced application fulfilled all (or any) of those requirements?
B. APPLICANT:
This section of the Public Notice indicates that the Applicant is:
"Mr. Fred Godfrey
Cutrale Farms, Inc.
PO Box 157
Auburndale, Florida 33823"
3. Is Cutrale Farms, Inc. affiliated in any manner with "Cutrale Citrus Juice Company", that apparently was issued an administrative order by the Department of Environmental Protection, due to excessive nitrates that ran off a sprayfield at their site after a heavy rain? That incident apparently is being considered as one of the potential factors in the extensive deaths of alligators (a federally-listed species) and birds in Lake Griffin (and the Harris "Chain of Lakes"), in addition to respiratory and neurological problems of local residents. Sick birds are common around those lakes, with all sick birds sharing symptoms of lethargy, lack of coordination and, in some cases, convulsions. Please refer to the June 11, 2001 Tampa Tribune article by Mike Salinero for a synopsis of those environmental and human health problems. That article can be viewed at the website address below. The answers to those questions seem to be crucial in evaluating the potential impact of the proposed project to the water quality of the entire surrounding area, including the Lake Okeechobee area, where still-births have been occurring in resident women.
http://www.tampatrib.com/MGAYCQENTNC.html
C. WORK & PURPOSE:
This section of the Public Notice states, in its entirety:
"The project proposes 264.5 acres of direct impact by fill to freshwater wetlands (250.3 acres) and surface waters (14.3 acres) and 116.6 acres of secondary impacts to preserved freshwater wetlands. In addition, 79.8 acres of freshwater wetlands will be impacted by inundation.
The applicant proposes to convert an approximately 14,000-acre tract from the existing agricultural land use (cattle and dairy) to citrus production, associated water retention, and preservation."
4. Citrus production is not a "water-dependent" activity. The discharge of dredged and fill material is not permitted for an activity that is not water-dependent unless there is no practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem. Since "citrus production" is not water-dependent, the presumption is that practicable alternatives are available (40 CFR 230.10(3)). The Public Notice provides no information describing the extensive "practicable alternatives analysis" that was performed to rebut the presumption that such alternatives are available. The absence of this information suggests that no such analysis was conducted. If no such analysis was conducted, the application should have been returned to the applicant as "incomplete", rather than being posted as a Public Notice item. Conversely, the COE simply should have DENIED the requested permit, based on it's incompleteness. If the analysis was conducted, the results of the analysis should have been included in the Public Notice, since the information contained in such an analysis is critical to the public comments that would be submitted for such a proposed project. In any event, the Public Notice is deficient and should be re-advertised, when it includes all of the required information pertaining to the extensive "alternatives analysis". Alternatively, the project should be DENIED.
5. The Florida COE routinely publishes Public Notices for proposed projects that are not "water dependent" activities and for which no "alternatives analysis" information is provided. Issuance of permits for applications failing to meet those criteria is in violation of the requirements of the Clean Water Act and the COE regulations. In addition to representing violations of legal requirements, requests for public and agency comments on projects that clearly are not water-dependent activities and for which no extensive "alternatives analysis" information is available constitutes a gross waste of taxpayers' money and time. Those unjustified Public Notices and agency reviews represent a chronic problem with the Florida COE, as well as a burden to the other federal agencies involved in the review process.
6. This section states that approximately 461 acres of waters/wetlands of the United States will be "impacted" by "fill" and inundation. No information is provided in the Public Notice regarding how many acres of waters/wetlands of the United States, within and beyond the boundaries of the property, will be "impacted" by groundwater withdrawals that typically accompany "citrus production". How many acres of waters/wetlands of the United States, within and beyond the boundaries of the property, will be "impacted" by groundwater withdrawals that will accompany the proposed "citrus production" project?
7. Please note that the two paragraphs quoted under "WORK & PURPOSE" above constitute all of the information provided in the Public Notice regarding this proposed 14,000-acre project. That 14,000-acre tract reportedly contains at least 1,855 acres of wetlands in the Everglades watershed (which the taxpayers of the United States are paying $8 billion as attempted restoration). It is impossible to provide adequate public comments on such a grossly inadequate Public Notice. Such inadequate Public Notices occur regularly with projects proposed for COE permits in Florida. Such notices constitute an invalid request for public comments on projects proposed for permitting under Section 404 of the Clean Water Act. The COE should be sufficiently knowledgeable of the laws, rules, and regulations to realize that such applications are incomplete and cannot be permitted, rather than expecting the public to explain that to you. Such inadequate Public Notices also represent a significant waste of the general public's/taxpayers' time in attempting to comment on projects with grossly insufficient information.
8. If the referenced proposed project was a "water-dependent" activity and qualified for consideration of a COE permit, the following list of items represents only a few examples of the basic, essential information that should have been included under the "WORK & PURPOSE" section in the Public Notice, to facilitate a determination of the direct, indirect, and cumulative impacts of the proposed project.
a. the total area of existing impervious surfaces on the 14,000 acres;
b. the total area of proposed impervious surfaces on the 14,000 acres;
c. the total area of existing stormwater facilities on the 14,000 acres;
d. the total area of proposed stormwater facilities on the 14,000 acres;
e. the number, acreage, and detailed description of wetlands presently incorporated into stormwater facilities on the 14,000 acres;
f. the number, acreage, and detailed description of wetlands proposed to be incorporated into stormwater facilities on the 14,000 acres;
g. the volume of groundwater withdrawals authorized by the state's Consumptive Use Permit for the existing "cattle and dairy" use of the land, and the length of time those groundwater withdrawals have been occurring on the 14,000 acres;
h. documentation of the actual daily volume of groundwater withdrawals for the history of the existing "cattle and dairy" use on the 14,000 acres;
i. the volume of groundwater withdrawals proposed to be associated with the proposed "citrus production", including "emergency" withdrawals associated with "freeze protection", and the status of the state's Consumptive Use Permit for the proposed "citrus production" on the 14,000 acres;
j. the actual net loss of wetlands that will occur if the proposed permit is issued; and,
k. a detailed explanation and description of the "...116.6 acres of secondary impacts to preserved freshwater wetlands.
Please note that Webster's II New Riverside University Dictionary defines "preserve" as "To keep safe, as from injury or peril." If there are impacts to "preserved" wetlands, those wetlands are not "preserved".
D. EXISTING CONDITIONS:
This section of the Public Notice states, in its entirety:
"The Amelia Project contains 306 herbaceous or forested fresh water wetlands totaling 1,854.7 acres. The majority of the wetlands are shallow, ephemeral emergent marshes supporting softrush, bahia grass, and smartweed. Some deeper systems support pickerelweed and sawgrass. The two creek systems traversing the property are Cypress Slough and Taylor Creek. Taylor creek is a channelized system. The northern extent of Taylor Creek is comprised of a ditch conveying water. The southern portion of the system is vegetated by bottomland swamp vegetation although configured as a ditch. Cypress Sough [sic] is relatively undisturbed and vegetated with cypress, black gum, cabbage palm, pickerelweed, arrowhead, sedges and rushes. Isolated forested wetlands connected by ditches comprise approximately 23 acres. The hydrology of wetlands on-site has been altered by agricultural practices. An extensive system of ditches was installed to allow for growth of vegetables and more recently hay and pasture grasses. Wetlands within the existing pasture fields are rimmed by ditches, have ditches running through them, or are within 50-feet of existing ditches.
State listed species observed onsite are the Burrowing owl and Sandhill crane."
9. Why is a proposed citrus grove called the "Amelia Project"? That infers a development project. It is my understanding that extensive environmental destruction has occurred in south Florida under the guise of citrus production that subsequently is converted into intensive development, after determining that "citrus production" is not an economical venture. What documents have been provided by the applicant to support the validity of the proposed agricultural endeavor (please refer to paragraph #2)?
10. The majority of the 306 wetlands, which encompass approximately 1,900 acres of the Amelia Project site, are described as "shallow, ephemeral" wetlands in the "EXISTING CONDITIONS" section of the Public Notice for the referenced application. [emphasis added] Webster's II New Riverside University Dictionary defines "ephemeral" as "Lasting a short time: TRANSITORY. Lasting or living but a day." The term "ephemeral", as applied to those wetlands, is a misnomer. Almost certainly those wetlands have existed for hundreds of thousands of years. Likewise, the natural functions of those wetlands have been provided for hundreds of thousands of years.
11. The types of wetlands referenced in the Public Notice as "ephemeral" more accurately are known as "depressional" wetlands. Depressional wetlands are common throughout Florida and the Coastal Plain of Georgia. Our current state of knowledge indicates that the depressions that those wetlands occupy are relict sinkholes, or dissolution/collapse features in the regional karst aquifer system known formally as the Floridan aquifer system.
10. This section of the Public Notice also references 23 acres of "isolated" forested wetlands. The term "isolated" is a misnomer when applied to wetlands in Florida, where all wetlands are connected intimately with ground water, which in turn is connected intimately to surface water. Those 23 acres also are known as depressional wetlands, and probably are dominated by pond-cypress (Taxodium ascendens).
13. Depressional wetlands, due to their location in relict sinkholes, are extremely sensitive to anthropogenic alterations of ground water. "Citrus production" characteristically results in significant alterations of ground water, particularly during periods of massive groundwater withdrawals for "freeze protection". Such groundwater withdrawals should have been evaluated as direct, indirect, secondary, and cumulative impacts to all wetlands on the 14,000 acre tract, as well as to wetlands and uplands beyond the boundaries of the proposed site. Were they? There is no such indication in the Public Notice.
14. Examples of some of the sensitive lands beyond the boundaries of the proposed site that could experience adverse direct, indirect, secondary, and cumulative impacts from groundwater withdrawals associated with the proposed project include the Brighton Indian Reservation and the Archbold Biological Station.
15. Approximately 800 Native Americans (Seminoles) reportedly live on the Brighton Indian Reservation. What are the adverse impacts that will occur to their land and their Tribe if a permit for the proposed project is issued?
16. Archbold Biological Station is a 5,140-acre globally-significant natural preserve. It contains sensitive habitats for listed species, as well as depressional wetlands, with vegetation that is rooted in the same aquifer from which the proposed "citrus production" presumably would be drawing ground water. In fact, research has shown that even some species of native scrub vegetation, considered to be "xeric", have extremely long roots that penetrate deep into the sandy soils, down to the water table. Therefore, groundwater withdrawals that result in abnormal fluctuations of the water table can jeopardize even so-called "xeric" scrub vegetation - habitat for listed species. What are the adverse impacts that will occur to the Archbold's globally-significant nature preserve if a permit for the proposed project is issued?
17. On February 12, 2001, the Archbold Biological Station experienced a catastrophic wildfire. Catastrophic wildfires can be triggered by groundwater mining and other anthropogenic groundwater alterations. According to the description on their website (http://www.archbold-station.org/abs/index.htm), the fire burned about 640 acres of their main property.
"This was perhaps the largest single fire on Archbold property in 34 years." Eric Menges, Archbold Plant Ecologist, said, "My impression of this fire is that the intensity was unprecedented and that the heterogeneity was minimal. This was a hot and uniform fire compared to other scrub fires I have seen." [Natural wildfires generally are of low intensity and heterogeneous, burning in many patches] "Many small slash pines were likely killed and all ponds were burned completely."
18. Certainly the COE must be aware of the water crisis in south Florida, since your agency is proposing to spend hundreds of millions of federal tax dollars attempting to inject surface water into the aquifer that has been drastically overpumped, due to activities such as this referenced project. Water resources have been over-allocated, due to gross mismanagement of Florida's most precious resource. There is no additional ground water (or surface water) available for consumption in south Florida. As indicated previously, the referenced Public Notice includes no reference to the adverse impacts that will be associated with groundwater withdrawals if a COE permit is issued for this proposed project. This is a grave deficiency in the referenced Public Notice, as well as a chronic problem with every Public Notice published by the Florida COE that I have observed.
19. It is my understanding that a considerable amount of federal and state money has been devoted to attempting to restore the Kissimmee River (originally channelized by the Florida COE). Cypress Slough and Taylor Creek, which flow through the proposed project site, are tributaries of the Kissimmee River. The Public Notice provides no mention of the adverse direct, indirect, secondary, and cumulative impacts on the Kissimmee River and the restoration effort from activities associated with the proposed project, including groundwater withdrawals. It also is my understanding that attempts are being made to restore Taylor Creek and adjacent Nubbin Slough. The Public Notice fails to describe the extent of impacts to those systems and that restoration effort. What would the extent and magnitude be of the direct, indirect, secondary, and cumulative impacts on the Kissimmee River, Taylor Creek, and adjacent Nubbin Slough, and the attempted restoration of those systems?
20. Although this section of the referenced Public Notice states that the "hydrology of wetlands on-site has been altered by agricultural practices", it also infers that "an extensive system of ditches...installed to allow for growth of vegetables and more recently hay and pasture grasses" was responsible for that altered hydrology. As queried previously, were the referenced actions permitted/legal? What evidence did the applicant present to substantiate that the hydrology was "altered", and that the ditches were responsible for that altered hydrology? The terrain of the proposed site appears to have very little relief, which is typical for areas in Florida with the types of wetlands described for that site. Consequently, the type of ditching commonly found in those low-relief terrains has limited adverse impact on the hydrology of the wetlands and uplands. Because of the depressional nature of the wetlands, water generally is diverted from the wetland systems via those types of ditches only during extreme periods of high water.
21. The preceding paragraphs of comments under this section primarily have addressed water "quantity" problems that should be expected to be associated with the proposed project, if permitted. Significant water "quality" degradation also should be expected. Please refer back to the article referenced in paragraph #3, above. Contamination of surface and ground water may occur via the copious quantities of fertilizers generally applied to citrus groves. Those fertilizers tend to leach rapidly through the sandy soils, into the shallow ground water. Herbicides and pesticides also are applied to citrus groves routinely. Herbicides and pesticides, like fertilizers, also can leach rapidly into the ground water. Those contaminants can be extremely toxic to humans, as well as wildlife, that come in contact with the contaminated water.
22. Please refer to the discussion in paragraph #11 above, regarding depressional wetlands located in relict sinkholes. Any water quality contaminants that flow into those shallow, depressional wetlands may contaminate not only the surface water in the wetlands, but gain more direct access to the ground water for contamination.
23. Those agricultural contaminants can be transported for great distances from the source after they enter Florida's karst aquifer system. For example, in 1983, Simmons, Jr. and Love discovered fresh water (10 ppt salinity) discharging near the bases of coral reefs off the coast of Key Largo. Analysis of samples from that discharging ground water revealed numerous pesticide peaks and heavy metal concentrations 100 to 10,000 times greater than mean sea water values. For your convenience, the full citation for that report is provided below, and a copy of the report is being forwarded to you with a hard copy of this electronic letter.
Simmons, G. M., Jr. and F. G. Love. 1987. Water quality of newly discovered submarine ground water discharge into a deep coral habitat. p. 155-163. In R. A. Cooper and A. N. Shepard (eds.) Scientific Applications of Current Diving Technology on the U. S. Continental Shelf: Results of a Symposium Sponsored by the National Undersea Research Program, University of Connecticut at Avery Point, Groton, Connecticut, May 1984. Symposium Series for Undersea Research, NOAA's Undersea Research Program Vol. 2, No. 2, Washington, DC.
E. ENDANGERED SPECIES:
This section of the Public Notice states:
"Current and past site management activities have degraded native habitats and the utilization by listed wildlife. Federally listed species Audubon's Crested Caracara and Bald Eagle have been observed feeding onsite. No nesting activity has been documented in the immediate vicinity.
The Corps of Engineers has concluded that under the proposed conditions the project may affect, but is not likely to adversely affect the Bald Eagle and the Audubon's Crested Caracara. The Corps of Engineers is requesting consultation as defined under Section 7 of the Endangered Species Act with the Fish and Wildlife Service." [emphasis added]
24. The conclusion by the COE, referenced above, "that under the proposed conditions the project may affect, but is not likely to adversely affect the Bald Eagle and the Audubon's Crested Caracara", is without any scientific or legal basis. A determination of either "affects" or "will not affect" must be made for the proposed project, based on consultation with the US Fish and Wildlife Service (FWS). The FWS cannot initiate formal consultation under the Endangered Species Act until an application is complete. Since the application is grossly incomplete, formal consultation cannot be conducted at this time. Furthermore, formal consultation under the Endangered Species Act that is conducted AFTER publication of a Public Notice for a proposed project precludes the public from providing comments on the outcome of the findings of the formal consultation. Therefore, the proposed project must be DENIED or re-advertised as a Public Notice at such time as the application and consultation are complete.
25. The statement by the COE, referenced above, considers impacts only to two federally-listed species "observed feeding onsite". The type of depressional forested wetlands described briefly in the Public Notice represents potential nesting habitat for the wood stork, a federally-listed species. Wood storks also are known to feed in depressional wetlands, therefore, those wetlands represent potential feeding habitat for the wood stork. Groundwater withdrawals, such as those characteristically associated with "citrus production", can result in significant hydrological alterations to those depressional wetlands. Those hydrological alterations can be more severe than impacts associated with surface alterations such as ditching. Refer to the preceding discussions regarding impacts to depressional wetlands associated with groundwater withdrawals. The referenced Public Notice provides no indication that the Applicant or the COE have considered the adverse impacts of groundwater withdrawals on any federally-listed species.
26. In addition to considering impacts only to two federally-listed species "observed feeding onsite", the statement by the COE, referenced above, considers only nesting activity for those two species in the "immediate vicinity". The COE has given no consideration to adverse impacts to those or other listed species offsite, but within the area of impact associated with the proposed project. Such areas may include the Archbold Biological Station and the Brighton Indian Reservation. Refer to the preceding discussions regarding off-site impacts associated with groundwater withdrawals.
27. No information has been provided in the referenced Public Notice that can be used to determine the full magnitude and extent of the impact area due to groundwater withdrawals that would be associated with the proposed project. Therefore, no determination can be made regarding how many federally-listed species will experience adverse impacts from the proposed project. Formal consultation under the Endangered Species Act realistically cannot be conducted until AFTER the magnitude and extent of the impact area due to groundwater withdrawals has been determined. Consequently, the proposed project must be DENIED or re-advertised as a Public Notice at such time as the magnitude and extent of the impact area due to groundwater withdrawals has been determined.
28. The proposed project may represent a "taking" of critical potential nesting and foraging habitat for wood storks and other federally-listed species both on-site and off-site, in violation of the Endangered Species Act, due to groundwater withdrawals. As indicated previously, the referenced Public Notice fails to provide sufficient information for a comprehensive determination of the full adverse impacts to federally-listed species.
F. PROPOSED MITIGATION:
This section of the referenced Public Notice states, in its entirety:
"To compensate for the proposed wetland impacts, the applicant is proposing to enhance 768.6 acres freshwater wetlands, create/restore 294. 6 acres of wetlands, and preserve 623.9 acres of wetlands in the reservoirs located throughout the property. The 768.6 acres of wetlands will be enhanced by severing ditches, constructing control structures and pumps to restore the hydroperiod, and implement exotic vegetation control. The plan proposes to restore/create herbaceous and scrub [sic] wetlands by hydrating 294.6 acres of uplands within retention basins with control structures and pumps. The created areas are anticipated to be colonized by adjacent wetland vegetation. The created areas will be monitored to ensure success. The 740.2 acres of wetland preservation consists of the forested creek systems and a few isolated wetlands.
The applicant proposes to preserve 740.2 acres of wetlands and 713.2 acres of uplands for a combined total of 2,516.7 acres of wetland and upland habitats." [emphasis added]
29. Recall that "citrus production" is not a water-dependent activity that would qualify for a permit under Section 404 of the Clean Water Act (33 USC 1344). Section 404 of the Clean Water Act (33 USC 1344) requires that a comprehensive "alternatives" analysis and comprehensive "minimization/avoidance" analysis must be completed, prior to consideration of mitigation for wetlands impacts. No such information is provided in the referenced Public Notice, therefore, requesting public comment on proposed mitigation is premature. Consequently, the proposed project must be DENIED or re-advertised as a Public Notice at such time as the "alternatives" analysis and comprehensive "minimization/avoidance" analysis has been completed and provided in the re-advertised Public Notice.
30. No information has been made for "mitigation" of impacts that will occur to wetlands beyond the property boundaries, due to groundwater withdrawals, as discussed under previous sections.
31. Even if all other requirements had been met for issuance of a permit for the proposed project described in the referenced Public Notice, the Public Notice contains no precise and detailed mitigation plan to offset even the unsubstantiated claim of adverse impacts to 461 acres of waters of the United States that reportedly will occur on-site.
Does the Applicant have the scientific expertise for successfully creating, restoring, enhancing, and preserving wetlands such as those on the subject property?
Does the Applicant have a proven track record of successfully creating, restoring, enhancing, and preserving wetlands such as those on the subject property?
Where is the documentation of the characteristics of the target "hydroperiod" that the Applicant proposes to restore?
32. What does the Applicant mean by the statement that they will "preserve 623.9 acres of wetlands in the reservoirs located throughout the property". The referenced Public Notice contains no information regarding any "reservoirs" on the property. Are the referenced "reservoirs" pits from previous or proposed mining/excavation on the referenced site? Please note that excavated pits (aka "reservoirs") can result in adverse impact to wetlands of the magnitude of groundwater withdrawals referenced in paragraph #20. Such dredged pits do not have hydroperiods similar to Florida's natural wetlands, and generally become over-grown by nuisance species (e.g., cattails) and alien species, due to the severe disturbance associated with dredging activities. Detailed information is required regarding the referenced "reservoirs" (e.g., location, proximity to wetlands, size, depth, excavation history) in order to evaluate the anticipated effectiveness of any detailed mitigation plan that is submitted for review in a future Public Notice.
33. Please refer to my discussion in paragraph #20 regarding the magnitude of adverse impacts of groundwater withdrawals versus ditching on depressional wetlands (and uplands) such as those on the referenced site and on sites within the potential impact area, including the Archbold Biological Station. No documentation is provided in the referenced Public Notice that "severing ditches" will "enhance" 768.6 acres of wetlands, as claimed. What scientific justification has been provided to substantiate that claim?
34. Likewise, what scientific justification has been provided to substantiate the claim that "constructing control structures and pumps" will "restore the hydroperiod, and implement exotic vegetation control"? The referenced Public Notice provides no information regarding the species of "exotic vegetation" that the Applicant seeks to "control". Some alien species, such as melaleuca, are known to be extremely sensitive to groundwater alterations, invading and spreading rapidly in areas of south Florida where groundwater withdrawals or excavations are occurring. Consequently, "constructing control structures and pumps" may have no impact on the control on melaleuca and other alien species that respond like melaleuca.
35. What is the scientific basis for the assertion that the Applicant will be able to "restore/create herbaceous and scrub [sic] wetlands by hydrating 294.6 acres of uplands within retention basins with control structures and pumps"? Retention basins, generally excavated adjacent to natural wetlands in Florida, result in permanent hydrologic alterations of the natural wetlands. Those adverse impacts facilitate the invasion and spread of nuisance and alien plant species into and throughout the natural wetlands, and eventual loss of important native wetland plant species. I am not aware of a single example of such a situation where "control structures and pumps" have been able to compensate for such adverse impacts to natural wetlands. Furthermore, it is impossible to imagine that such proposed action would result in the created areas being "colonized by adjacent wetland vegetation." The Applicant should provide examples of such activities where such claims have been proven.
36. Please be advised that the General Accounting Office (GAO) of the United States has determined that the COE lacks data on the success or failure of required mitigation efforts, and has determined that ecological success criteria must be developed. In the absence of such success criteria, valid mitigation for wetlands lost cannot be expected, and the referenced proposed project has no valid mitigation plan. Has the COE developed ecological success criteria? If so, those criteria should be included in the Public Notice and incorporated into the detailed mitigation plan (that is not included in the Public Notice) for the proposed project. If the COE has not developed ecological success criteria, the proposed project violates the federal "no net loss" policy, and should be DENIED. The GOA report may be viewed at http://www.eswr.com/goamitigationrpt.pdf.
37. The excellent maps attached to the referenced Public Notice illustrate the existing location of wetlands on site. Sheets 4 through 12 document the extensive occurrence of wetlands distributed throughout the entire site. Unfortunately, "Table 3. Mitigation Plan Summary", on Sheet 12 of 13, is very confusing. Categories in Table 3 include: "Wetland Creation (Retention)", "Wetland Enhancement (Retention)", "Wetlands Preservation (Retention)", and "Upland (Retention)". Are the 1,367 acres of "mitigation" included in those categories actually associated with stormwater retention facilities? Stormwater retention facilities are known to concentrate countless contaminants that are harmful and hazardous to wildlife, including federally-listed species. Therefore, proposed "mitigation" areas that are associated with stormwater retention areas would not constitute valid mitigation.
38. Sheet 13 of 13, attached to the referenced Public Notice, is a Site Plan map of the proposed project. There are numerous points of confusion on the map that make it impossible to determine exactly what the map is attempting to convey. For example, the symbols for "Road Impacts" and "Wetland Preservation" appear to be the same. Recall that groundwater withdrawals on the property are likely to preclude the "preservation" of any wetlands on the site, so that the "wetland loss" acreages will have to be increased accordingly for the proposed project (e.g., 1,900 acres).
39. The symbols for "Wetland Enhancement" and "Storage Pond Existing Wetland" on sheet 13 of 13 also appear to be the same. Is "Wetland Enhancement" being conducted in "Storage Pond"? There is no scientific justification for storage ponds constituting mitigation for wetland losses. Therefore, mitigation acreages would have to be decreased accordingly for the proposed project (e.g., 0 acres).
40. The symbol for "Retention Basins" on sheet 13 of 13 suggests that all of the "Wetland Enhancement", "Wetland Creation", "Upland Preserve", and "Wetland Preservation" are part of a stormwater management system. Is that the case? If so, none would qualify as "mitigation".
41. The entire Site Plan on sheet 13 of 13 is covered with the letters "FPF", followed by various three-digit codes. The legend identifies "FPF" as "Freeze Protection Facility Open Water Habitat Creation". No further explanation is provided. If any of these areas represent areas of excavations, then additional adverse impacts will occur both on-site and off-site.
G. AUTHORIZATION FROM OTHER AGENCIES:
This section of the Public Notice states:
"A State Water Quality Certification/ERP will be required for this project. The South Florida Water Management District is processing an application for this project. The State application number is 000825-19."
42. As stated in the Public Notice, "A State Water Quality Certification/ERP will be required for this project." Since the Public Notice also clearly indicated that "A State Water Quality Certification/ERP" had not been issued at the time the Public Notice was published, it is clear that the referenced Public Notice was premature. Such premature postings represent a significant waste of taxpayers' money in unnecessary review time of agency personnel for projects that may never qualify for State Certification or may be revised countless times due to failure to meet State requirements. Premature posting of Public Notices for incomplete applications is a chronic problem with the COE in Florida.
H. IMPACT ON NATURAL RESOURCES:
The final page of the referenced Public Notice (signed by Chief John R. Hall) states, in part:
"Preliminary review of this application indicates that an Environmental Impact Statement will not be required."
43. It is impossible to comprehend how Chief John R. Hall could have made that statement, considering the impacts that will occur if the proposed project is permitted. Was that final page of the referenced Public Notice attached in error? The purpose of an EIS is to identify the full magnitude and extent of all adverse impacts that are likely to occur from a project that may have multiple, far-reaching adverse impacts. Clearly the referenced proposed project is a prime example of such. It also is clear that neither the applicant nor the COE are capable of determining the full magnitude and extent of all of the countless adverse impacts that are likely to occur from this proposed project. When the applicant does not include the basic, information required by law (as is the case in the referenced permit application), the referenced "Federal, State, and local agencies, environmental groups, and concerned citizens" cannot possibly determine the full and actual "impact that the proposed action will have on the natural resources of the area", as insinuated in the final page of the COE's Public Notice, that is signed by Chief, John R. Hall.
44. If the proposed project is not DENIED, a detailed EIS should be initiated immediately, and is requested formally, by copy of this letter.
I. EVALUATION:
The final page of the referenced Public Notice (signed by Chief John R. Hall) states, in part:
"The decision whether to issue a permit will be based on an evaluation of the probable impact including cumulative impacts of the proposed activity on the public interest. That decision will reflect the national concern for both protection and utilization of important resources. The benefits, which reasonably may be expected to accrue from that proposal, must be balanced against its reasonably foreseeable detriments. All factors which may be relevant to the proposal will be considered including cumulative impacts thereof; among these are conservation, economics, esthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership, and, in general, the needs and welfare of the people. Evaluation of the impact of the activity on the public interest will also include application of the guidelines promulgated by the administrator, EPA, under authority of Section 404(b) of the Clean Water Act of the criteria established under authority of Section 102(a) of the Marine, Protection, Research, and Sanctuaries Act of 1972. A permit will be granted unless its issuance is found to be contrary to the public interest."
45. As indicated previously, the referenced Public Notice fails to address or even mention any of the direct, indirect, secondary, and cumulative impacts other than direct impacts associated solely with the footprint of the proposed filling and inundation of wetlands on the site.
46. In consideration of the above, it is impossible to image how a permit could be issued for the proposed activities based on the impacts that are known from the information provided. The "probable impacts" including "cumulative impacts of the proposed activity on the public interest" will exceed all of the impacts that are known from the information available in the referenced Public Notice. No public "benefits" have been identified or can be perceived for the proposed permit application. The "reasonably foreseeable detriments" that would occur if a permit is issued by the COE for the referenced application will include (but not be limited to) detriments to the following: conservation, economics, esthetics, general environmental concerns, wetlands, fish and wildlife values, floodplain values, land use, navigation, recreation, water supply and conservation, water quality, safety, and, in general, the need and welfare of the people. The only logical conclusion to draw is that the proposed project must be DENIED.
J. REQUEST FOR PUBLIC HEARING:
The final page of the referenced Public Notice (signed by Chief John R. Hall) states:
"Any person may request a public hearing. The request must be submitted in writing to the District Engineer within the designated comment period of the notice and must state the specific reasons for requesting the public hearing."
47. If the proposed project is not DENIED, a series of public hearings is requested, by copy of this letter. The specific reasons for requesting the public hearings are enumerated throughout this letter. Public hearings should be scheduled to take place at the onset, during, and at the conclusion of the EIS.
SUMMARY AND CONCLUSIONS
In conclusion, my comments were not meant to be inclusive of all of the countless inadequacies of the referenced permit application to meet the regulatory requirements for receiving a permit from the COE. Such tasks are NOT the responsibility of the general public. It is the responsibility of the COE to ensure that an application is complete prior to posting a Public Notice for public comment. Permit applications as grossly incomplete as the referenced application appears to be should NOT be the subject of a Public Notice. Likewise, Public Notices should contain all relevant information of a complete application, so that the full impacts of the proposed activity can be determined. Requesting comments on such a grossly inadequate Public Notice is a waste of time and money for the staff of all of the associated agencies, as well as for the general public.
The requirements for submitting a complete application, in compliance with the requirements of Section 404 of the Clean Water Act, are not "in-born knowledge". The COE should have literature to distribute to Applicants and potential Applicants detailing and summarizing all of the information that is required to compile a complete application. The COE also should advise Applicants and potential Applicants that if they do not have the necessary scientific expertise to compile a complete application, that they may have to hire a consultant who has those skills. The COE also should sponsor regular workshops where trained professionals can teach Applicants, potential Applicants, consultants, and COE employees how to produce a complete application, and the requirements of Section 404 of the Clean Water Act (with nonagency attendees covering the cost of their training). Other agency staff and the general public should not be subjected to the burden of Applicants and COE personnel who are failing to comply with federal law.
Since the proposed project clearly is contrary to the public interest, and in consideration of the basic criteria that the Applicant apparently has failed to meet, the requested permit should be DENIED. Some of the failures of the referenced application to meet the basic criteria of a complete application permittable by the COE, as referenced in my letter, are provided in the nonexhaustive list summarized below.
1. failing to identify a water-dependent activity;
2. failing to provide a detailed analysis of alternatives; failing to identify/analyze all of the direct, indirect, cumulative and secondary impacts that would result if the proposed permit was issued;
3. failing to describe the quality, function and nature/character of the off-site waters/wetlands of the United States to which adverse impacts would occur;
4. failing to consider the impacts to navigable waters;
5. failing to provide the results of a comprehensive biological assessment as required by the Endangered Species Act;
6. failing to recognize that the critical habitat for many, if not all of the federally-listed species potentially associated with the proposed project area would be destroyed by the proposed project if permitted;
7. failing to provide a detailed and complete mitigation plan;
8. failing to provide "actual" mitigation - even IF the activities were considered to be water-dependent and permittable; and,
9. failing show how - through a Public Interest Review - that the proposed activities are in the Public Interest/Not Contrary to the Public Interest.
In consideration of all of the above, there is no scientific basis for the statement on the final page of the COE Public Notice, "Preliminary review of this application indicates that an Environmental Impact Statement will not be required." An EIS and public hearings should be initiated immediately, if the proposed project is not DENIED.
Sincerely,
Sydney T. Bacchus, Ph. D.
Hydroecologist
Enclosure
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