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Miami Apartments Comment Letter
Lesley Blackner, Esquire
123 Australian Avenue
Palm Beach, FL 33480
tel: (561)659-5754
fax: (561)659-3184
November 27, 2001
Via Fax and US Mail
Mr. Bradley C. Myers
Department of the Army
Miami Regulatory Office
11420 North Kendall Drive
Suite 104
Miami, FL 33176
Re: Permit application #200103245(IP-BCM)
Dear Mr. Myers:
This letter is submitted on behalf of Floridians for Environmental Accountability and Reform, as comment on the permit referenced above. Deficiencies in the public notice are noted, and it is expected that further comment will be allowed once sufficient information is provided.
1. According to the public notice, the applicant proposes to fill approximately 150 acres of waters of the United States to build an apartment complex. An apartment complex is not a "water-dependent" activity. The Corps' rules (40 C. F. R. 230.10(3)) specify that the discharge of dredge and fill material is not permitted for activities that are not water dependent. They further provide that "[p]racticable alternatives that do not involve special aquatic sites are presumed to be available, unless clearly demonstrated otherwise". The public notice provides no alternatives analysis; therefore the permit application should be denied.
2. The public notice provides no analysis of any attempt to first avoid wetlands loss, as required. 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.
3. 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." Corps' rules require detailed analysis of alternatives for this proposed project.
4. Moreover, since the project is mammoth, with mammoth impacts to the human environment, an EIS must be prepared.
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 both proposed project sites is within the Key Biscayne Bay watershed boundary. These pending permit application is demonstrative of the piecemeal dredge and fill of the bay’s wetlands, that has resulted in the recent finding that Biscayne National Park is one of the most endangered, polluted park systems in the United States.
4. Indeed what impacts, direct, indirect and cumulative, will this proposed activity have upon the Biscayne National Park?
5. The quality, function, and character of the wetlands are not specified in sufficient detail to allow for adequate comment.
6. 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, secondary and cumulative impacts.
7. The public notice provides no analysis of how the proposed dredge and fill will affect remaining abutting wetlands, including those within the Biscayne National Park. 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 of any remaining abutting wetlands will be altered.
8. 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.
9. Finally, with respect to the "mitigation" statement, it must be noted that the stormwater pits (aka “lakes”) will result in the dewatering and thus the destruction of all remaining surrounding undeveloped wetlands. Therefore, it is a fraudulent claim and conclusion to assert that any remaining wetlands in the vicinity will be preserved or enhanced in any capacity, including function. See peer reviewed study on pits attached hereto.
10. These pits will result in the further dewatering and destruction of the Biscayne aquifer through endless evaporation losses. It should be recalled, that the Biscayne aquifer is the source of Miami-Dade’s drinking water. Further, the proposed activity will harm the aquifer through paving over of valuable recharge area.
11. Projects such as this are largely responsible for the current water crisis in south Florida. The Corps’ historic indifference to preservation of waters of the United States, as mandated by the Clean Water Act, has resulted in irreparable harm to all water resources in the Miami-Dade area, including Biscayne National Park.
12. Has any thought been given as to what the water requirements of all the people moving to these apartments will be? Where are you going to get the water for the endless population growth?
13. Whatever happened to the Corp's policy of "no net loss"? The public notice’s claim that “the combined on-site and off-site mitigation would be required to compensate for 100% of the functional values of the wetlands to be impacted” is a fraudulent claim because “preservation” and “enhancement” of onsite wetlands is impossible given the excavation of pits to collect stormwater runoff.
14. 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. If a permit is forthcoming in this project, I request it, along with a copy of the EASOF and any alternatives analysis performed by the Corps.
Sincerely yours,
Lesley Blackner
cc: Haynes Johnson, EPA
David Hankla, Field Supervisor, Fish & Wildlife Service
Beverly Banister, EPA
John Hall, Corps
FEMA
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