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Glassman Comment Letter
Lesley Blackner, Esquire
Blackner, Stone & Associates
123 Australian Avenue
Palm Beach, FL 33480
tel: (561)659-5754
fax: (561)659-3184
October 26, 2000
Ms. Terry Montgomery
Department of the Army
Jacksonville District Corps of Engineers
Stuart Regulatory Office
P.O. Box 2391
Stuart, Florida 34995
Re: Permit Application No. 199601852 (IP-TM)
Glassman Development Corporation
Dear Ms. Montgomery:
This letter is submitted on behalf of the Nature Coast Chapter of the Sierra Club and Joe Murphy, southeast organizer for the Endangered Species Coalition, as comments upon the above referenced permit application. These comments are submitted, following consultation with technical experts, in recognition that the permit application is incomplete and provides limited information that does not allow a comprehensive comment. Deficiencies in the public notice are noted, and it is expected that further comment will be allowed once sufficient information is provided.
1. The wetlands areas described by the applicant in general terms as "freshwater marshes, hydric pine flatwoods, and wet prairies." No list of plant species comprising the wetlands is provided, nor is there any description of the condition of the wetlands, their quality and level of function..
2. According to the Public Notice, the applicant proposes to excavate material from 3.35 acres of waters of the United States and fill 34.63 acres of waters to construct a residential development. A residential development is not a "water-dependent" activity. 40 C.F.R. 230.10(3) specifies that the discharge of dredge and fill material in a water of the United States is not permitted for activities that are not water dependent. A residential development is not a water dependent activity and, "practicable alternatives that do not involve special aquatic sites are presumed to be available, unless clearly demonstrated otherwise." 40 C.F.R. 230.10(a)(3). No discussion of practicable alternatives is provided and thus the application should be denied.
3. Moreover, no analysis is provided of any attempt to avoid wetlands loss, or even attempting to minimize such loss, as required. It is presumed by law that all wetland impacts for non-water dependent activities are avoidable. Please provide such analysis.
4. Given the size of the proposed project and the large impact to wetlands, a detailed analysis of practicable alternatives must be provided, in accordance with Regulatory Guidance Letter, No. 93-2, "Guidance on Flexibility of the 404(b)(1) Guidelines and Mitigation Banking" 11 (August 23, 1993), which provides in relevant part that "The amount of information needed to make such a determination and the level of scrutiny required by the [Section 404(b)(1) Guidelines] is commensurate with the severity of the environmental impact and the scope/cost of the project." The guidance establishes less stringent alternatives review for projects that would have only minor impacts. It also provides that "[g]enerally, as the scope/cost of the project increases, the level of analysis should also increase." The rules require detailed analysis of alternatives for this proposed project.
5. No discussion of whether and to what extent this proposed project will "cause or contribute to significant degradation of the waters of the United States" is provided, as required by 40 C.F.R. 230.10(c). The 1999 U.S. Geological Survey Open-File Report 99-181 indicates that the proposed project site is within the Kissimmee-Okeechobee-Everglades watershed boundary. This watershed has historically received extreme adverse impacts and is the focus of the national restoration effort. Why would the Corps permit activities that will confound and negate the restoration effort? At the very least, analysis must be provided of how this project will affect the watershed. Federal law requires that the cumulative, direct, and indirect impacts of this proposed activity, and its concomitant loss of wetlands and wetland function, on this nationally vital watershed, must be comprehensively analyzed.
6. It appears that this proposed project cannot be accomplished without dredge and fill of wetlands. For example, the roads through the development cannot be built without dredge and fill of wetlands. Therefore, Corps' jurisdiction extends to the entire project, wetlands and uplands, under 33 C.F.R. 230, Appendix B, Section 8(a). Therefore, an environmental assessment must be prepared to determine whether an environmental impact statement is required for this proposed activity and submitted for public comment.
7. The quality, function, and character of the wetlands is not specified in sufficient detail to allow for adequate comment
8. The general reference regarding the type of wetlands also suggests that this land may be prime habitat for gopher tortoises, which are a keystone species whose burrows house certain federally listed species, such as the indigo snakes. No information has been provided regarding wildlife surveys conducted on the property to determine the presence or absence of critical habitat for these and related listed species. The Public Notice provides no information regarding how the cumulative impacts of wetland destruction and alteration proposed by this permit application will affect wildlife, including listed species that are dependent on these wetlands and other wetland-dependent species.
9. The general reference regarding the type of wetlands on the proposed project site and a review of the USCS topographic quadrangle suggest these wetlands may be valuable nesting habitat for sandhill cranes. Please make this determination.
10. Because these wetlands are of regional significance, and may support migratory species from other states and/or countries, the cumulative impact analysis should address cumulative impacts beyond the immediate site.
11. Regulations promulgated under the National Environmental Policy Act provide that all effects, both direct and indirect, shall be considered by the Corps. 40 C.F.R. 1508.8. All cumulative impacts shall also be considered. 40 C.F.R. 1508.7. Please provide analysis of all direct effects, indirect effects, and cumulative impacts.
12. Regarding the proposed mitigation. Please explain how 8.77 acres of wetlands will be "enhanced." Given that there is no discussion of the functions provided by the wetlands on the site, it is impossible to determine even if enhancement is needed. Diversion of stormwater into wetlands does not constitute enhancement of wetlands, but rather degradation.
13. Why is mitigation even broached when there has been no determination made that all "potential impacts have been avoided to the maximum extent practicable; only then are unavoidable impacts then mitigated to the extent appropriate and practicable by requiring steps to minimize impacts, and finally, compensate for aquatic resource values. See Memorandum of Agreement between EPA and Corps dated November 15, 1989.
14. Why are 50-foot buffers around the preserved wetlands proposed? What function will they serve? Why not 100 foot buffers? The buffer size appears arbitrary and no explanation of why 50 feet is adequate is provided. What is the "buffer" comprised of?
15. Why is "enhancement" of 8.77 wetland acres deemed adequate in the face of a loss of approximately 37 wetland acres? Whatever happened to the rule of "no net loss"? See Memorandum of Agreement dated November 15, 1989. Moreover, there is no analysis of how the proposed dredge and fill will affect remaining wetlands. No data is provided regarding the existing hydroperiods of the natural wetlands on the proposed site, the natural hydroperiods of the wetlands (assuming these natural hydroperiods were altered, as suggested), how the natural hydroperiods were altered, or how the hydroperiods are proposed to be "enhanced." Item 1 of the "notes" box on Sheet 3 of 8 provided in the Public Notice, states, "Control structures in wetlands to be type 'E" unless otherwise noted." This suggests that the natural hydroperiods of at least some of the wetlands on the site are proposed to be altered. Please note that diversion of stormwater into natural wetlands does not constituted "enhancement." Diversion of stormwater into wetlands constitutes an "attractive nuisance" to wildlife which utilize the wetlands degraded by storm water runoff. Wildlife forced to utilize wetlands contaminated by storm water are exposed, unnecessarily, to toxic and hazardous compounds from the storm water that become concentrated in the receiving wetlands and bioaccumulate in the wildlife.
16. Also, regarding the "mitigation" statement, it is noted that the applicant suggests that some of the wetlands on the project site will be "preserved." Sheet 3 of 8 of the Public Notice, identifies eight "lakes" on the proposed project site. A review of the previously referenced USGS topographic map indicates that there are no natural lakes in this area. See also 33 C.F.R. 323.2(b) for the legal definition of a lake. Based on these referenced sources, it appears that the areas identified as "lakes" are, in fact, large areas proposed for excavation, that will receive/treat stormwater. Please analyze water quality issues associated with these "lakes." Further, no information is provided regarding the depth to the top of the surficial aquifer at the proposed project site. However, the fact that there are approximately 142.09 acres of wetlands, including wet prairies, on the proposed project sit, suggests that the water table (surficial aquifer) is extremely close to the land surface. Consequently, the proposed excavation of these man-made "lakes" presumably will intercept the surficial aquifer, converting the shallow ground water into surface water. This action will result in the permanent lowering of the surficial aquifer and disruption of wetland hydroperiods in two ways. First, the excavation will create an artificial void that must be filled with water from the surficial aquifer. Second, there will be increased and continual loss of water from the surficial aquifer due to increased evaporation of "lake" water. Third, the surficial aquifer will be exposed to contaminants from runoff into the "lakes." The Public Notice provides no information regarding how the proposed "lakes" will be lined or sealed to prevent these post-excavation adverse impacts, it is presumed that no impermeable barriers will be placed between the bottom of these man-made "lakes" and the water table, or how the surficial aquifer will be protected from breaching. It does appear unconscionable that a pit is euphemistically termed a "lake." At the very least, the public deserves honest terminology in a Public Notice.
17. The excavation of the lakes will result in dewatering of the remaining wetlands, which are highly sensitive to any anthropogenic changes in the surficial aquifer. The effect of the permanent lowering of the surficial aquifer on remaining wetlands must be analyzed and evaluated.
18. The dewatering of the area resulting from dredge and fill will also stress and harm surrounding unbuilt uplands. The Public Notice does not indicate that there is scrub on the site. Dewatering severely stresses scrub. This effect must be evaluated and analyzed.
19. There is no analysis of how remaining wetlands, chopped up and fragmented by this proposed project, will function. How will their ability to act as habitat be affected? Will they continue to serve other wetlands functions such as provision of water purification? The Public Notice indicates that the remaining wetlands (which will be stressed by dewatering) will be entirely surrounded by development. How will the wetlands function surrounded by development? Are these wetlands part of a larger mosaic of wetlands, and if so, how will the wetland system be impacted?
20. What is the function and value of the proposed mitigation? It is a violation of the Clean Water Act and the National Environmental Policy Act not to detail the terms of the mitigation in the final Public Notice.
21. Finally, with respect to the "mitigation" statement, the applicant suggests that the details and adequacy of mitigation will be determined at some unspecified time in the future. This statement provides further evidence that the permit application is not complete.
22. Is this proposed project submitted in its entirety, or is it merely one phase among several? 33 C.F.R. 325.1(d)(2) provides that "all activities which the applicant plans to undertake which are reasonably related to the same project and for which a [Corps] permit would be required should be included in the same permit application."
23. Sheet 4 of 8 in the Public Notice, identifies three "area" symbols in the legend. This first is a "white" symbol, which denotes "wetlands." The second is a stippled symbol, which denotes "USACOE wetland impacts (fill)." The third is a diagonal "cross-hatching" symbol that is not described in the legend. All symbols should be described in the documents provided in the Public Notice in order for all of the potential impacts of the proposed project to be evaluated.
24. Regarding the Public Interest Review required by 33 C.F.R. 320.4, no information is provided with respect to the following elements of the review. Please provide adequate information to allow proper comment on the following:
Thank you for your consideration of these comments and I look forward to hearing from you soon.
Sincerely yours,
Lesley Blackner
Cc: Haynes Johnson, EPA
David Hankla, Field Supervisor, Fish & Wildlife Service
John Hall, Corps
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