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New Smyrna WalMart Comment Letter
May 10, 2002
Colonel James G. May, District Engineer
Atten: Marie L. Huber, Corps Project Manager
Department of the Army
Jacksonville District Corps of Engineers
P. O. Box 4970 marie.l.huber@usace.army.mil
Jacksonville, FL 32232-0019 marie.l.huber@saj02usace.army.mil
Re: New Smyrna Beach WalMart Supercenter
Permit Application No. 200101107 (IP-MH)
Dear Colonel James G. May and Project Manager Marie Huber:
I am submitting this formal letter of public comment on behalf of Floridians for Environmental Accountability and Reform (FEAR), in response to your agency's Public Notice dated April 12, 2002, pursuant to Section 404 of the Clean Water Act (33 U.S.C 1344). Please forward any responses to this letter to Gordon Williamson, Regional Director for the St. Johns River Chapter of FEAR, as well as to me, at the addresses provided below.
Before I provide comments on the proposed project (referenced above), I am including the following brief synopsis of my scholastic and professional background, as support for 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.
During and subsequent to my employment with governmental regulatory agencies in Florida, I served as an expert witness for countless enforcement and permitting cases/potential cases throughout the entire State of Florida, in addition to overseeing numerous large "restoration" projects. I then shifted from government regulatory work to return to the academic realm and 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, forest pathology and ecology. That extensive multidisciplinary background was essential for both my doctoral and post-doctoral research problems, which included identifying anthropogenic (man-induced) groundwater alterations as a causal agent in the premature decline and death of trees, and other significant adverse and permanent environmental impacts.
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. I have published more than 30 peer-reviewed papers (including contributing a book chapter regarding 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. I also was nominated as a Technical Advisory Member in the field of hydrology for the proposed mining of the Trail Ridge relict sand dunes in the vicinity of the Okefenokee National Wildlife Refuge, and was selected to serve as a Peer Reviewer for the related proposed mining issues. A "no mining" scenario was imposed for Trail Ridge, however, in part because of adverse impacts that would occur to Waters/wetlands of the United States in the Okefenokee Swamp if one of the primary recharge areas (Trail Ridge) was dredged. Note that it was recognized in that case that adverse impacts would occur beyond the boundaries of the property to be dredged (see also EXHIBIT 1).
The primary focus of my research has been depressional wetlands that occur throughout Florida and the Coastal Plain of Georgia. The majority of my research sites are located in Florida. According to the Public Notice, the "impact area" of the proposed WalMart Supercenter in New Smyrna Beach "can be characterized as 8.0 acres of mixed hardwood depressional wetland".
In addition to my relevant background and training, I have personal knowledge of the site where the referenced WalMart Supercenter is proposed to be constructed (if permitted), including the Waters of the United States (e.g., depressional wetlands and streams that are tributaries of Turnbull Creek) that are proposed to be within the "impact area". My personal knowledge of the proposed WalMart Supercenter site in New Smyrna Beach extends from the early 1950s to the present. My personal knowledge of the proposed site includes the periods during which I lived in New Smyrna Beach, near the proposed site for the WalMart Supercenter, as well as the period from the early 1980s to the present, during which time I conducted research in that area.
The following comments are based, in part, on my personal knowledge and experience of the proposed site, as described above, and many other WalMarts throughout Florida. My comments below also are based on my extensive knowledge and experience of similar wetlands throughout Florida, and responses of those wetlands to anthropogenic hydroperiod (depth, duration, and season) alterations.
COMMENTS ON PERMIT APPLICATION NO. 200101107 (IP-MH): WALMART SUPERCENTER
A. APPLICANT:
Wal-Mart Stores, Inc.
SWDC, 2001 S. E. 10th Street
Bentonville, AR 72716
1. The Individual Permit (IP) application information above suggests that the residents and tax-payers of New Smyrna Beach, Volusia County, and Florida will bear the financial and other burdens of the myriad environmental problems that will transpire, if the proposed permit for the WalMart Supercenter is issued, while the economic gains would go to a private corporation located in Arkansas.
B. WATERWAY & LOCATION:
This section of the Public Notice states, in it's entirety:
"The proposed project would impact waters of the U. S. including wetlands that may have been historically connected to Turnbull Creek. The proposed project site is located approximately 1.3 miles east of the I-95 and SR 44 intersection on the north side of SR 44 in Section 43, Township 17 South, Range 33 East, New Smyrna Beach, Volusia County, Florida."
2. The description in B., above, suggests that the wetlands (special aquatic sites/Waters of the United States) that the proposed project would "impact" no longer are connected to Turnbull Creek. They are. In fact, those wetlands include the natural flood plains, other riparian areas, and tributaries of the upper reaches of Turnbull Creek. Therefore, the Public Notice is misleading since it implies that these natural wetlands, other riparian areas, and tributaries no longer are connected to Turnbull Creek.
3. A more informative description of the waterway and location of the proposed project site is as follows. The proposed project site is located near the east-central coast of Florida (east-central Volusia county), approximately 3 miles west of the northern extent of the Indian River. It lies west of the city limits of New Smyrna Beach, on the north side of State Road 44 (SR 44), and adjacent to the northern terminus of Wildwood Drive (see the "mapquest" map provided as page 4 of the Public Notice). The proposed site also is located 0.5 miles west of the existing Wal-Mart shopping center, as well as within the flood plain between two tributaries of the western fork of the upper (southern) reaches of Turnbull Creek. Turnbull Creek forms the southern extent of the Rose Bay/Spruce Creek (Strickland Bay)/Turnbull Creek (Bay) watershed complex, which depicted on the New Smyrna Beach, Samsula, Port Orange, and Daytona Beach USGS quadrangle maps (EXHIBIT 2a-d). Turnbull Creek flows into the Halifax River/Intracoastal Waterway, and is linked intimately with the regional Floridan aquifer system and Volusia-Flagler Sole Source Aquifer.
4. Figure 1 (provided as page 3 of the Public Notice) reportedly identifies the approximate boundaries of the proposed project site on a copy of the New Smyrna Beach USGS quadrangle map. By referring to an original of that quadrangle map (EXHIBIT 2a), the brown contour lines demarcating the natural tributaries of Turnbull Creek (including the densely-forested segments at the proposed project) can be seen more clearly. The tributaries and flood plains of the upper reaches of Turnbull Creek are even more obvious on the original 1956 USGS quadrangle map, which I reviewed prior to preparing this letter. The flood plains associated with the tributaries in proximity to the proposed project site can be seen to extend to the 25 foot elevational contour line, in the vicinity of Interstate 95, both north and south of SR 44 (refer to EXHIBIT 2a). An example of one of these flowing, natural tributaries is shown in EXHIBIT 3a, a photograph that I took at the proposed project site. Many areas of the proposed site surrounding the natural tributaries (that were channelized in the 1770s) exhibit indicators of prolonged and significant flow of surface water. For example, the photograph in EXHIBIT 3b that I took at the proposed site shows the buttressed base of a large tree devoid of moss due to water flow. Organic debris wrack also was observed throughout the proposed site for the WalMart Supercenter, as illustrated in EXHIBIT 3c, another photograph that I took. These wrack lines were large, as indicated by the 22 cm (9 inch) water bottle used for scale, suggesting a considerable volume of surfacewater flow through the proposed site. In fact, much of the site is comparable in vegetative and hydrologic characteristics to the forested flood plains associated with the main channel of Turnbull Creek, downstream, as illustrated by the subsequent photographs I took (EXHIBIT 3d).
5. The area surrounding the proposed site is rural (exterior to the city limits), with extensive, naturally forested areas. The entire site of this proposed project is densely forested, with a closed canopy of specimen and heritage native trees, as shown in the portion of the color aerial photograph with attached field notes (EXHIBIT 4). The road at the bottom of the aerial photograph is SR 44, which is the southern terminus of the proposed site. The vast majority of the trees on the site of the proposed project are in excellent health and show no symptoms or signs of disease, premature decline, or stress. Some of the trees appear to qualify as state or even national "Champion Trees". I have identified and nominated at least one tree in the southeastern United States that later was designated as a National Champion tree. Trees on this site and the surrounding area are preventing erosion, reducing noise (including traffic noise from SR 44), cleansing the air of pollutants, moderating temperatures, and sequestering carbon.
6. Volusia County values the benefits provided by the trees in their county, as evidenced by their "Environmental protection standards relating to trees" (¤ 50-161 et seq.). Some of the many benefits provided by trees in Volusia County are listed in the "Purpose and jurisdiction" section (Sec. 1001) of the County's Tree Ordinance (EXHIBIT 5), and include the production of oxygen (a necessary element to the survival of man); reduction of environmentally dangerous carbon dioxide concentration in the air; trapping and filtering out ash, dust and pollen from the air; reduction of wind velocity and noise levels; prevention of erosion by stabilizing the soil through their root system and by breaking the force of raindrops pounding soil surfaces; reducing the quantity of surface runoff and the percentages of impervious surfaces; purification by removing the nutrients from waters passing through the ground from the surface to the groundwater table; providing shade and transpiring water to moderate temperatures and cleanse the air; providing food, shelter and essential habitat for wildlife; and providing valuable visual aesthetics and psychological contrast to the manmade urban environment. That "Purpose and jurisdiction" section of the County's Tree Ordinance concludes by stating that trees "are a valuable asset and increase the economic and aesthetic value of developed and undeveloped properties."
7. The proposed riparian project site provides habitat for an assortment of wildlife, including flocks of wild turkey that I have observed during several occasions. Flocks of wild turkey are common in healthy stands of forested wetlands in Florida. Wetland orchids (water spider orchids, Habenaria repens) also were observed blooming in clusters throughout the site (Exhibit 6a). In areas with slightly less prolonged periods of standing (and flowing) water, jack-in-the-pulpits (Arisaema triphyllum) were blooming (EXHIBIT 6b). These species of native wildlife and plants are indicative of a healthy and relatively pristine forested wetland.
8. In the east-central portion of Florida, the US Environmental Protection Agency (EPA) has designated a portion of the regional Floridan aquifer system as the Volusia-Floridan Sole Source Aquifer (EXHIBIT 7). The proposed WalMart Supercenter project site is within the boundaries of that Sole Source Aquifer. I observed groundwater upwellings at numerous locations throughout the site of the proposed project during every site inspection that I made. Evidence of this groundwater upwelling can be seen in the photographs that I took at the proposed project site, including those shown in EXHIBIT 8a-b. These groundwater upwellings feed the natural tributaries of Turnbull Creek, maintaining the natural hydroperiod and characteristic water chemistry, and can be detected by the high concentrations of iron present in the areas of groundwater discharge.
9. Turnbull Creek, which is tidally-influenced, provides both habitat and refuge for the Florida (West Indian) manatee (Trichecus manatus). I have observed manatee while kayaking in the upper reaches of Turnbull Creek. The Florida manatee is a federally-endangered species.
10. In addition to the natural resources associated with the proposed project site (e.g., tributaries, flood plains, other wetlands and riparian areas), as described above, numerous cultural resources occur on and in close proximity to the proposed project site. For example, a recent cultural resource assessment survey on the actual site of the proposed WalMart Supercenter identified three newly recorded historic resources and one newly recorded archaeological site (EXHIBIT 9), some of which are considered potentially eligible for inclusion in the National Register of Historic Places (NRHP). The New Smyrna Sugar Mill Ruins State Historic Site is located approximately 1 mile east of the proposed project site, on the south side of SR 44 (see Figure 1 of the Public Notice and EXHIBIT 2a). The Spruce Creek Mound is located on the banks of Spruce Creek, in Spruce Creek Preserve, less than 5 miles northwest of the proposed site for the WalMart Supercenter. That Native American mound is described as one of the "most impressive prehistoric earthen works in Florida", the construction of which is believed to have accompanied the ceremonial burial of a chief or high priest and relatives. Human skeletons and status artifacts have been recovered from that mound. Additional information regarding that mound and other archeological and prehistoric sites in the vicinity of the proposed site for the WalMart Supercenter can be found at the web site for the Museum of Arts and Sciences (http://volusia.com/history/natives/index.htm).
C. WORK & PURPOSE:
This section of the Public Notice states, in it's entirety:
"The applicant proposes to fill approximately 8.8 acres of wetlands for the purpose of constructing a WalMart Supercenter to meet the increasing demands of the neighboring residents. The impact area can be characterized as 8.0 acres of mixed hardwood depressional wetland with .8 acre of onsite ditches. The applicant has offered the following compensatory mitigation for consideration if it is determined that issuance of a permit is appropriate: a 5.82 acre conservation area consisting of 2 acres of wetlands and 3.82 acres of uplands, creation of a .3 acre upland/wetland buffer area to include planting of wetland vegetative species, and the purchase of credits in the Farmton Mitigation Bank." [emphasis added]
WETLANDS VERIFICATION, TYPE, NATURE, AND FUNCTION
11. As indicated above, the "WORK & PURPOSE" Section of the Public Notice states, "The applicant proposes to fill approximately 8.8 acres of wetlands". On April 10, 2001, your agency issued a Nationwide Permit (NWP) 39 (200101107 NW-SS) to the same Corporation authorizing construction of this same project on this same site, and indicating that the permit would result in the filling of 0.01 acre of wetlands (EXHIBIT x). In that NWP, the Project Engineers and Environmental Consultants for the applicant/permittee claimed that "impacts to approximately 0.15 acres of wetlands" would occur as a result of the project on the site and only 0.01 acres of wetlands were proposed to be destroyed by discharge of fill (see the NWP COE application and file documents, EXHIBIT 10).
12. Subsequently, it was revealed by a Florida regulatory agency that, in fact, at least 10 acres of wetlands occur on that site and would be destroyed by the proposed project, if the project had been constructed (EXHIBIT 11, see quote from article, below). A wetland delineation conducted on the same property (with some additional, adjoining acreage) by Joe E. Young III, Biological Consulting Services, Inc., for T. F. Wilson Reality, Inc. in 1998 (for consideration as a school site), identified 18.01 acres of wetlands on the site (EXHIBIT 12). During the time period when I was providing formal wetlands delineation training for government employees and consultants, I provided training for Joe Young. I have inspected wetland delineations performed by Joe Young during the period of his training, and recently spot-checked the delineation he made on the site of the proposed project. During both time periods, Joe Young's wetland delineations exhibited a high degree of accuracy.
"An example of these rubber-stamped permits was one the Army Corps granted to Wal-Mart for a site along State Road 44 just outside New Smyrna Beach. The applicant, an environmental consulting firm hired by Wal-Mart, claimed there were 0.15 acres of wetlands on the 29-acre site. They supported this with a map denoting the small wetlands acreage and claiming that the wetlands boundaries had been verified by the St. Johns River Water Management District.
This was not true.
The consultant was 'taking liberties' with the facts, said Lee Kissick, the water management district inspector who met with the consultants."
"Water district inspectors later identified about 10 acres of wetlands on the site -- meaning that wetlands comprised more than one-third of a site approved by the Army Corps, sight unseen." [emphasis added]
13. Neither the Public Notice referenced above nor the COE file documents for the IP application included any documentation that a comprehensive, or even a routine, wetland determination was conducted for the proposed project site by the applicant, as described in the COE Wetlands Delineation Manual dated January 1987 (see at http://www.wes.army.mil/el/wetlands/pdfs/wlman87.pdf). The Project Engineers and Environmental Consultants for the referenced proposed IP project are the same as those who misrepresented the wetlands acreage for the original NWP that your agency issued. The following statement is provided under "NOTE" on page 2 of the referenced Public Notice, "This public notice is being issued based on information furnished by the applicant. This information has not been verified." Therefore, neither the validity nor the accuracy has been determined for the current statement by the applicant (and in the referenced Public Notice) that 8.8 acres represents the total acreage of impact on the proposed site.
14. Neither the Public Notice referenced above nor the COE file documents included any detailed description of the type, nature, or function of the Waters of the United States that are within the proposed project site. As indicated previously, according to the "WORK & PURPOSE" Section of the Public Notice, the "impact area can be characterized as 8.0 acres of mixed hardwood depressional wetland with .8 acre of onsite ditches." The validity (or lack thereof) of the reported wetland acreage was discussed in the preceding paragraphs. The natural tributaries and flood plains of the portion of Turnbull Creek that extends throughout the referenced project site also was described above (see also subsequent paragraphs). The inference in the Public Notice that this virtually pristine system is nothing more than "onsite ditches" is grossly inaccurate and misleading to the general public. A new Public Notice is needed that accurately describes the extent, type, nature, and function of the Waters of the United States, so that the general public can recognize the magnitude of the inevitable adverse impacts of this proposed project and provide meaningful comments.
15. Although the total acreage of wetlands on the proposed project site does not appear to have been determined pursuant to the 1987 COE Manual, an estimated one-third to two-thirds of the approximately 30 acre proposed site is composed of tributaries and depressional/flood plain wetlands of Turnbull Creek. The entire site is a riparian area of Turnbull Creek.
16. Riparian areas are defined as follows in the report titled, "Riparian Areas: Functions and Strategies for Management" (Riparian Report) by the National Research Council that was released on March 22, 2002 (EXHIBIT 13, see entire report at http://books.nap.edu/books/0309082951/html/):
"Riparian areas are transitional between terrestrial and aquatic ecosystems and are distinguished by gradients in biophysical conditions, ecological processes, and biota. They are areas through which surface and subsurface hydrology connect waterbodies with their adjacent uplands. They include those portions of terrestrial ecosystems that significantly influence exchanges of energy and matter with aquatic ecosystems (i.e., a zone of influence). Riparian areas are adjacent to perennial, intermittent, and ephemeral streams, lakes, and estuarine-marine shorelines." [p. 29, emphasis added]
17. The Riparian Report further distinguishes riparian areas as follows:
"....The definition in the preceding section describes riparian areas as 'zones of influence' between aquatic and terrestrial areas. As such, riparian areas encompass some or all of the wetlands in a typical landscape setting, but they also include portions of adjacent aquatic and upland environments...." [p. 30, emphasis added]
18. The intimate interconnection of riparian areas with water bodies such as streams, in addition to some of the functions and values of riparian areas are described in the Riparian Report, in part, as follows:
".....In an ecologically healthy landscape, streams and their riparian areas form an inseparable unit--the stream corridor....A river channel that has become disconnected from its riparian area no longer stores water and accumulates sediment, thus losing many of its ecological functions.
Ecologically healthy stream corridors and lakeshores are more than just sediment and water, channels and flood plains. They include assemblages of riparian plant communities and wildlife that depend upon the natural hydrologic regimes representative of a particular landscape. In the absence of human alteration, riparian plant communities support numerous functions including bank stabilization through root strength, sediment deposition on flood plains during periods of overbank flow, interstitial flow through the sediments, and large wood supply, which has a substantial influence on channel complexity and instream habitat features. Ecologically intact riparian areas naturally retain and recycle nutrients, modify local microclimates, and sustain broadly based food webs that help support a diverse assemblage of fish and wildlife. Like the loss of flooplain connectivity caused by altered channels and flow regimes, the removal of streambank vegetation has a large ecological impact--affecting aesthetics, recreational opportunities, and other characteristics of these areas that humans value." [p. 21, emphasis added]
19. Construction of the proposed WalMart Supercenter at the site proposed in the referenced IP application would separate (disconnect) the "inseparable" riparian areas from Turnbull Creek, destroying the natural water storage properties of the site, as well as destroying all of the riparian plant communities, and subsequently all of the ecological functions of the site. Likewise, the proposed project would result in the destruction of all channels and flow regimes of Turnbull Creek in that area. Those alterations, if permitted by the COE, also would result in the loss of aesthetics, recreational opportunities, and other characteristics of the Turnbull Creek area that humans, including myself, value.
20. According to the Riparian Report, because of the importance of riparian areas, federal agencies such as the Bureau of Land Management (BLM) and the US Forest Service (USFS) are mandated to protect, manage, and restore riparian areas. [p. 29]
21. In an effort to update the knowledge of the proposed project site and surrounding areas that I have been acquiring since the early 1950s, I inspected the proposed site for the proposed WalMart Supercenter most recently on October 10, 2001, November 11, 2001, January 6, 2002, February 20, 2002, March 16, 2002, and May 2, 2002. The observations I made and photographs I took during those site inspections provide considerable insight into the type, nature, and function of the Waters of the United States that extend throughout the proposed project site. Photographic examples, all of which were taken by me (including those referenced previously), are provided below to illustrate key aspects of the site proposed as the location for the WalMart Supercenter. The dates of the photographs I took, and have selected as examples of the site conditions, are indicated on the list of exhibits.
22. Numerous species of trees exhibited sizable buttressed bases in the floodplain wetlands/riparian areas that comprise the proposed site for the WalMart Supercenter (EXHIBIT 14a, four photographs - note 22 cm (9 inch) tall water bottle and large adult males for scale). This characteristic is the first indicator of a frequently inundated wetland (Appendix C. Subsection 3-a. 1987 COE Wetlands Delineation Manual), and is described in the 1987 COE Wetlands Delineation Manual (page C2) as an adaptation that "is a strong indicator of hydrophytic vegetation in nontropical forested areas". New Smyrna Beach is a nontropical area.
23. Other "morphological adaptations for occurrence in wetlands" that are described in the 1987 COE Wetlands Delineation Manual (page C3) that were observed throughout the floodplain wetlands/riparian area that is the proposed site for the WalMart Supercenter include shallow root systems (EXHIBIT 14b), hypertrophied lenticels (EXHIBIT 14c), and multitrunks or stooling (EXHIBIT 14d). Shallow root systems, the fourth morphological indicator described in the 1987 COE Wetlands Delineation Manual, is indicative of soils that "are inundated or saturated for long periods during the growing season". Hypertrophied lenticels, the ninth morphological indicator described in the 1987 COE Wetlands Delineation Manual, are enlarged lenticels (pores) on the stems "in response to prolonged inundation or soil saturation." They are "thought to increase the uptake of oxygen through the stem during such periods." The occurrence of multitrunks or stooling, the tenth morphological indicator described in the 1987 COE Wetlands Delineation Manual, also is considered a "response to inundation", according to the 1987 Manual. Finally, note the significant tree removal prior to issuance of permits (EXHIBIT 14e).
WATER-DEPENDENT ACTIVITY
24. A WalMart Supercenter is not a water-dependent activity. This means that a WalMart Supercenter does not require being located in Waters of the United States (including special aquatic sites, such as wetlands and flood plains) for operation. Your agency's Rules (40 CFR ¤ 230.10(3)) specify 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.
25. Likewise, the treatment of stormwater is not a water-dependent activity and should not be conducted in Waters of the United States. Nowhere in the "WORK & PURPOSE" Section of the Public Notice is there any statement regarding how many acres of wetlands are proposed to be dredged, despite the fact that the microscopic drawings on Sheet C3 and Sheet 1 of 1 in the Public Notice indicate that both the natural wetlands and streams are intended to be dredged for the creation of a large stormwater treatment pit. In Florida, direct, indirect, and cumulative impacts from dredging differ significantly from impacts due to filling. Therefore, it is impossible to submit meaningful public comments, based on the information provided in the referenced Public Notice, which lacks information regarding the number of acres of Waters of the United States proposed to be filled and dredged. Consequently, the Public Notice is insufficient and a new Public Notice should be issued, describing in full detail, how many acres of wetlands and other Waters of the United States are proposed to be filled, how many acres of wetlands and other Waters of the United States are proposed to be dredged, and the type, nature and function of the wetlands and other Waters of the United States proposed for dredging and those proposed for filling.
INCREASING DEMANDS OF THE NEIGHBORING RESIDENTS
26. No documentation was referenced to substantiate the assertion in the "WORK & PURPOSE" Section of the Public Notice that "neighboring residents" are demanding that a "WalMart Supercenter" be constructed in New Smyrna Beach, or more specifically, at the proposed site in the Turnbull Creek floodplain tributary system. In reality, the "neighboring residents" are demanding that a "WalMart Supercenter" NOT be constructed at the proposed site. These demands have been acknowledged publicly in the form of a march that was initiated at the existing WalMart store 0.5 miles east of the proposed site, and which culminated at the site of the proposed WalMart Supercenter that is the subject of the referenced Public Notice. The public march by "neighboring residents", organized to demand that a "WalMart Supercenter" NOT be constructed at the proposed site, was covered by FEAR and included in their recent documentary video, as well as being covered by the Daytona Beach News-Journal (EXHIBIT 15, note placards worn by residents state "SAY NO! TO SUPER WAL-MART"). The FEAR documentary portrays the neighboring residents demanding that the proposed WalMart Supercenter NOT be located at the proposed site. A copy of that FEAR documentary video (EXHIBIT 16) is being forwarded to you with a hard copy of this letter and all other Exhibits, via the US Postal Service, as enclosures and an integral part of these public comments.
"ONSITE DITCHES"
27. As indicated previously, the "WORK & PURPOSE" Section of the Public Notice states that 0.8 acre of "onsite ditches" would be filled. The so-called "onsite ditches", as described above, are natural tributaries of Turnbull Creek that were channelized, to a minor extent, during the Turnbull era (late 1700s). These natural tributaries have been flowing during every inspection of the site that I have made, which is additional evidence that the proposed site not only provides natural storage of floodwaters, but also provides ecologically significant discharges of ground water to Turnbull Creek.
ALTERNATIVES ANALYSIS
28. According to the COE's regulations, practicable alternatives that do not involve special aquatic sites are presumed to be available for nonwater-dependent activities, unless clearly demonstrated otherwise (40 CFR ¤ 230.10(a) (3)). The Public Notice included no information regarding the required Alternatives Analysis. Likewise the COE file did not contain any documentation of a comprehensive Alternatives Analysis. By failing to include information regarding an Alternatives Analysis in the Public Notice, and by failing to "verify" any of the information submitted by the applicant, the COE has precluded the public from submitting comments on the accuracy, validity and thoroughness (comprehensiveness) of the required Alternatives Analysis. Therefore, the Public Notice is deficient and if the requested permit is not denied with prejudice, the Public Notice should be re-published, with the detailed information from the Alternatives Analysis included in the Public Notice. Since the entire proposed site (approximately 30 acres) is traversed by virtually pristine Waters of the United States (tributaries, wetlands/flood plains), it should be obvious that modified designs for a WalMart Supercenter at the proposed location are not logical or bona fide alternatives.
AVOIDANCE AND MINIMIZATION OF WETLAND IMPACTS
29. In addition to the lack of an Alternatives Analysis, the Public Notice included no information regarding Avoidance and Minimization of wetlands impacts. The Clean Water Act (CWA) 404(b)(1) Guidelines defines the required avoidance and minimization of wetland impacts.
30. It should be obvious that adverse impacts that will result in the degradation and loss of Waters of the United States cannot be avoided and minimized until they have been identified. The referenced Public Notice only made passing reference to one direct impact ("to fill approximately 8.8 acres of wetlands for the purpose of constructing a WalMart Supercenter"). The referenced Public Notice failed to identify any of the other direct impacts or myriad indirect and cumulative impacts of the proposed project, including impacts to ground water/the aquifer system. A full EIS and comprehensive Cumulative Impacts analysis must be completed before a scientifically-valid plan for avoidance and minimization can be formulated.
31. Despite the constraints described above, an example, of bona fide Avoidance and Minimization of wetland impacts would be conversion of the existing WalMart in New Smyrna Beach into the new WalMart Supercenter. Documentation of the Avoidance and Minimization also would include a description of how the existing WalMart in New Smyrna Beach already has degraded water quality of the Turnbull Bay watershed by discharging untreated stormwater directly into Waters of the United States (EXHIBIT 17a, 3 photographs), as well as destroying all of the trees on the site. For example, the live oak trees that reportedly were "preserved" at the site of the existing New Smyrna Beach WalMart show classic symptoms of severe premature canopy decline and dieback (EXHIBIT 17b, 3 photographs). Also observed at the existing New Smyrna Beach WalMart (located 0.5 miles east of the proposed site for the new WalMart) were piles of 2 cubic-foot plastic bags of shredded pond-cypress trees (Taxodium ascendens). Pond-cypress trees are critical nesting habitat for federally-endangered wood storks. This critical wood stork nesting habitat was being sold for $1.97 a bag (EXHIBIT 17c, not dying live oak in background).
32. Documentation of bona fide Avoidance and Minimization also would include a description of how the existing WalMart in New Smyrna Beach has reduced natural recharge to the uderlying aquifer system, including the regional aquifer system supplying potable water to the community, due to the extensive impervious surfaces at the site. Therefore, an alternative utilizing that highly-degraded site, rather than the pristine site that is proposed under this permit application, would constitute bona fide minimization of the considerable adverse direct, indirect, and cumulative impacts of the proposed WalMart Supercenter on Waters of the United States. Converting all of the impervious pavement at the existing WalMart site to pervious pavement during the redevelopment of the existing WalMart site would minimize further the adverse direct, indirect and cumulative impacts of the proposed project to Waters of the United States. Pervious (porous) paving has been available and in use in Florida for more than 15 years. Although porous pavements are best suited for areas of permeable soils, such as those in Florida, other areas of the country with less permeable soils actively use such alternatives. EXHIBIT 18 provides some examples of information and sources for porous surface alternatives.
PIECEMEAL IMPACTS
33. Proposing to construct a second WalMart 0.5 mile from an existing WalMart in New Smyrna Beach, also on SR 44, and in the same area of the same watershed should be considered as a piecemeal impact of the first WalMart.
34. Additional piecemeal impacts can be seen on Sheet 1 of 1 of the "WETLAND IMPACTS AND MITIGATION PLAN", included (in miniature version) in the referenced Public Notice. This document reportedly shows the extent of the Turnbull Creek tributaries and floodplain wetlands. Although the print on the plan sheet is too minuscule to read, the plan appears to indicate that the wetlands continue into the southern portion of the property. The southwest corner of Sheet C-2 of the "SITE PLAN" identifies a "future lease lot" through which one of the Turnbull Creek tributaries flows, yet those impacts have not been included in the referenced Public Notice. That entire lot is a Turnbull Creek riparian area. The failure of the Public Notice to address the impacts to Waters of the United States on that parcel constitutes a piecemeal approach to the impacts to Waters of the United States of this project, contrary to COE regulations (33 CFR ¤ 320.4(b)(3)).
35. The three "Out Parcels" identified on Sheet C2, east of the "future lease lot" also include tributaries and floodplain wetlands of Turnbull Creek and Turnbull Creek riparian areas. The failure of the Public Notice to address the impacts to Waters of the United States on those parcels constitutes other additional piecemeal approaches to the adverse impacts of this proposed project to Waters of the United States, in addition to cumulative impacts.
MITIGATION
36. As noted above, the final statement of the "WORK & PURPOSE" Section of the Public Notice was, "The applicant has offered the following compensatory mitigation for consideration if it is determined that issuance of a permit is appropriate: a 5.82 acre conservation area consisting of 2 acres of wetlands and 3.82 acres of uplands, creation of a .3 acre upland/wetland buffer area to include planting of wetland vegetative species, and the purchase of credits in the Farmton Mitigation Bank." [emphasis added] My preceding comments have addressed only some of the many reasons why issuance of this permit is NOT appropriate at this site. Additional reasons can be found by referring to the COE's regulations regarding mitigation (33 CFR ¤ 320.4(r)), and my remaining comments below.
37. Even if a presumption could be made that the referenced application met the criteria for permit issuance, with the proposed mitigation, the Public Notice does not specify any of the essential details of the proposed mitigation, which the public would need to provide any meaningful comments on the proposed mitigation. For example, there is no information regarding how many "credits" would be purchased; whether the "credits" to be purchased in the "Bank" are for wetlands that already exist or wetlands that would be created; the type, nature, and function of the "Mitigation Bank" wetlands; or even what watershed the "Farmton Mitigation Bank" is in. As only one example of the relevancy of such information, if the "Farmton Mitigation Bank" is not located within the upper reaches of Turnbull Creek, those "mitigation credits" will be of no value to the federally-endangered manatee utilizing that area as habitat.
38. More specific problems associated with the proposal to use "credits" in the "Farmton Mitigation Bank", or any "Mitigation Bank", for the proposed destruction of Waters of the United States at the referenced site include the following (also addressed in the subsequent paragraph):
a. a NET LOSS of wetlands, including those associated with Turnbull Creek;
b. a NET LOSS of natural tributaries, including those associated with Turnbull Creek;
c. failure to provide equivalent TYPE, NATURE and FUNCTION of wetlands and streams;
d. a NET LOSS of natural recharge area for the aquifer system;
e. conversion of recharge from high quality water to highly-contaminated stormwater;
f. a NET LOSS of natural storage area for storm events;
g. failure to recognize and accommodate the natural "plumbing" of wetlands and the regional aquifer system in Florida; and
h. failure to compensate for the destruction of the natural hydroperiod in that portion of the watershed.
39. Even if the "Mitigation Bank" wetlands were to be created from uplands, compensation would not be provided for the destruction of depressional wetlands and streams on the proposed site, which are naturally moderating flood waters in that portion of the watershed, and beneficially-influencing habitat for federally-endangered manatees. I offer the following analogy in an attempt to convey the function of these depressional wetlands. If someone ripped the toilet out of their bathroom and set it down on their back patio (e.g., because the bathroom was to be put to another use or because the location wasn't convenient), water would be pouring out of the severed pipes in the former bathroom (where the toilet used to be) because the toilet was connected to the plumbing below. Likewise, when they sat down on the throne on the patio and tried to flush, nothing would happen, because the essential plumbing isn't there. Florida's depressional wetlands aren't just some plants growing in low areas in the landscape. They have a unique relationship with the underlying aquifer system where they are located - that is WHY they are located where they are.
40. The preceding comments regarding proposed mitigation focused on compensation for the destruction of Waters of the United States via purchasing "credits" in the proposed "Mitigation Bank". The proposed "5.82 acre conservation area consisting of 2 acres of wetlands and 3.82 acres of uplands" is equally meaningless (without scientific basis). Construction of the proposed box commercial shopping center would involve extensive demucking and dewatering of the site. Those activities alone, in the absence of any of the typical mechanical damage that occurs on construction sites from heavy equipment, will result in the premature decline and death of all of the trees that remain on the site (including non-wetland trees) due to the severely altered hydroperiod.
41. Even if the proposed site did not have to be demucked and dewatered to accommodate construction of the proposed project, the extensive stormwater pit that is proposed to be dredged along the eastern and northern perimeters of the proposed site (see Sheet C3 and Sheet 1 of 1 in the Public Notice), in Waters of the United States (streams and wetlands), will alter the hydroperiod of the site permanently, and result in the premature decline and death of all of the remaining trees on the site, including all of the trees in the so-called "Preservation Area" at the northern extent of the proposed site.
42. In addition to proposing purchased "credits" from a "Mitigation bank " and establishment of a so-called "conservation area" (that would be destroyed) to compensate for the destruction of Waters of the United States, the Public Notice referenced the "creation of a .3 acre upland/wetland buffer area to include planting of wetland vegetative species". The creation of this vegetated "buffer area" will require extensive irrigation, unless the "buffer area" is established in the dredged stormwater pit. The aquifer system in Volusia County already has been depleted to the point where the St. Johns River Water Management District has solicited Volusia County for additional tax funds to bolster millions of dollars from District taxes and state funds to implement experimental means of continuing the county's supply of potable water (EXHIBIT 19). State funds that are targeted include $12 million of Florida Forever funds, which were appropriated primarily for the purchase of environmentally-sensitive lands in the state. Irrigating the "buffer" vegetation would exacerbate the already depleted aquifer system, as would the inevitable irrigation of any landscape vegetation that would be incorporated in the proposed project. In fact, the irritation of "buffer area" and landscape vegetation on the proposed site represents another adverse impact of the proposed project that was not addressed in the Public Notice. This adverse impact will contribute to the loss of additional Waters of the United States (including wetlands ) both on-site and off-site.
43. It is possible that the nebulous reference in the Public Notice to the establishment of a vegetated "buffer area" meant that plants would be established in the dredged stormwater pit. In that event, the vegetated areas would attract wildlife, including wading and migratory birds (e.g., federally-endangered wood storks (Mycteria americana)) to the most highly contaminated waters in the immediate locale. The stormwater pits then would be acting as an attractive nuisance, exposing the wildlife (including federally-endangered species) to toxic and otherwise hazardous chemicals, such as heavy metals. Refer to the publication by Campbell, documenting the accumulation of heavy metals in fish in her study of central Florida stormwater areas (EXHIBIT 20).
44. The preceding paragraphs discussed the inadequacy of purchasing "credits" in a "Mitigation Bank"; designating "conservation" (or "Preservation") areas; and establishing a vegetated "buffer area" as mitigation or compensation for the reported destruction of 8.8 acres of Waters of the United States (wetlands and streams). In reality, even if the delineation of the wetlands on the site was accurate (which has not been demonstrated) those losses only represent the destruction associated with the surface footprint of the proposed project. Furthermore, the "WORK & PURPOSE" Section of the Public Notice only addresses the acreage of wetlands to be destroyed via discharge of fill material. The adverse direct, indirect, and cumulative impacts of the proposed demucking, dewatering, on-site irrigation, and dredging of the stormwater pit all would contribute to the loss of considerably more acres of Waters of the United States than the 8.8 acres identified in the Public Notice. Refer to the 1989 publication by Curtis, entitled "Estimating unsteady water table behavior using boundary integral approximations" (EXHIBIT 21) regarding the considerable lateral extent of wetland and stream loss that would be expected to occur if the proposed project is permitted at the proposed site.
45. Finally, refer to the plumbing analogy in the paragraph above, as well as to Sheet C3 and Sheet 1 of 1 in the Public Notice. Not only would the proposed project result in a net loss of wetlands acreage, type, nature, and function; as well as natural recharge and natural storage for the aquifer system, it also would dredge stormwater pits into the surficial aquifer so that the most highly-contaminated water on the site would be in direct connection with the ground water. It is apparent from the information contained in and omitted from the Public Notice for the referenced project that the direct, indirect, and cumulative impacts of the proposed actions have not been identified (as required by 40 CFR ¤ 1508.7 and 40 CFR ¤ 1508.8), and thus, cannot be considered by the public for comments. Therefore, the Public Notice is inadequate for meaningful or comprehensive public comment. An additional Public Notice to obtain public comments is essential, after a full EIS and comprehensive Cumulative Impacts analysis have been completed for the proposed project.
D. ENDANGERED SPECIES:
This section of the Public Notice states, in it's entirety:
"The Corps is not aware of any threatened or endangered species on the project site."
46. The issue is not whether the COE is "aware of any threatened or endangered species on the project site." There is no indication that the COE has even been to the proposed site. The issue is whether the probable direct, indirect, and cumulative impacts of the proposed project, if permitted and constructed as proposed, would result in lost biological functions (33 CFR ¤ 320.4(a)(1) and (2)(iii)), including those critical for the maintenance and recovery of threatened or endangered species. They would. Even without knowing the full adverse impacts of the proposed project, it can be determined that those impacts would threaten the continued existence and recovery of at least the federally-endangered wood storks and Florida manatee, and possibly the federally-listed Eastern indigo snake (Drymarchon corais couperi), as referenced below.
47. The obvious and inevitable direct, indirect, and cumulative impacts of the proposed project - such as the project's permanent adverse effects on hydroperiod (33 CFR ¤ 320.4 (a)(1) and (b)(2)(iii)); permanent adverse impacts to ground water (33 CFR ¤ 320.4 (a)(1), (b)(2)(iv) and (b)(2)(vi)); and permanent adverse impacts to water purification and quality (33 CFR ¤ 320.4 (a)(1), (b)(2)(vii) and (d)) - will result in the loss of critical nesting and foraging habitat of the federally-endangered wood storks off-site within the Turnbull Creek (Bay)/Spruce Creek (Strickland Bay)/Rose Bay watershed complex (hydrologic basin), and potentially throughout the extent of the Volusia-Floridan Sole Source Aquifer. The loss of those habitats will jeopardize the continued existence and the recovery of the federally-endangered wood storks (refer to EXHIBIT 22).
48. The combination of the altered natural hydroperiod and Turnbull Creek water quality degradation due to contaminated stormwater from the excavated pit also will jeopardize the continued existence and the recovery of the federally-endangered Florida manatee. Refer to the 1995 Recovery Plan for the manatees at http://endangered.fws.gov/RECOVERY/RECPLANS/Index.htm.
49. Page 4 of the Biological Assessment dated October 2001, that was prepared for the proposed project by Kimley-Horn and Associates Inc. and submitted to Volusia County includes a discussion of the Eastern indigo snake (EXHIBIT 23). Included in their discussion is the following statement, "The species may forage in more hydric areas during summer months. Gopher tortoise burrows were identified in a small area of upland scrub, pine, and hardwoods adjacent to the west of the subject site. The burrows may provide habitat for indigo snakes, and indigo snakes may forage on the subject site." Gopher tortoise burrows are known to provide critical temperature-moderating habitat for Eastern indigo snakes and the foraging range of the snakes is known to extend for distances that would include the proposed site for the referenced proposed WalMart Supercenter (Paul Moler, personal communications). Therefore, the proposed site should be presumed to provide critical habitat (including forage habitat) for the federally-endangered Eastern indigo snake. Refer to the Fish and Wildlife Service Recovery Plan for the Eastern indigo snake dated 1982 .
50. Impacts referenced in the paragraphs above disregard the remaining "probable" impacts that cannot be considered now because an EIS and Cumulative Impacts analysis have not been conducted.
E. NOTE:
This section of the Public Notice states, in it's entirety:
"This public notice is being issued based on information furnished by the applicant. This information has not been verified." [emphasis from original]
51. As indicated previously, according to the Nationwide Permit 39 (200101107 NW-SS) issued by the COE for this same project on April 10, 2001, the applicant/permittee proposed to fill only 0.01 acres of wetlands (special aquatic sites) for the same proposed project (on the approximate 29 acre parcel) that now is the subject of this IP application. Also as indicated previously, subsequent inspection of the site by Florida regulatory staff confirmed the presence of at least 10 acres of wetlands (Waters of the United States) on the site (see EXHIBIT 11). A previous wetland delineation document, that I used for field verification, identified more than 18 acres of wetlands at the referenced location (EXHIBIT 12). The information from those two sources suggests that approximately one-third to two-thirds of the entire site proposed to be filled to construct a WalMart Supercenter is Waters of the United States (wetlands/flood plains, other riparian areas, and streams). This proposed impact represents a three orders of magnitude greater acreage of on-site impacts than was reported by the applicant/permittee in the original, unverified application to the COE.
52. It is impossible for the public to submit meaningful, accurate, or thorough comments regarding the proposed project, including the inevitable, or even the probable adverse direct, indirect, and cumulative impacts of the proposed project, until the COE has verified all of the information submitted by the applicant. Verification particularly is critical in cases where the applicant has a history of submitting erroneous, nonfactual, or scientifically unfounded information, such as in this case. Without verification of the information submitted by the applicant, the COE's permitting process is little more than a vending machine operation where the applicant inserts a nominal fee to cover the administrative costs of a form-letter permit that pops out of a chute after a designated number of days.
F. AUTHORIZATION FROM OTHER AGENCIES:
This section of the Public Notice states:
"A State Water Quality Certification/Permit may be required for this project. The St. Johns River Water Management District (SJRWMD) is processing an application for this project. The State application number is 40-127-80848-1."
53. The last statement above represents yet another inaccuracy associated with this proposed project. Although the applicant also attempted to convince the SJRWMD that only 0.01 acre of wetlands would be destroyed as a result of the proposed project, the SJRWMD staff conducted multiple inspections of the proposed site, and determined that the proposed project would result in impacts to approximately 10 acres of wetlands. The "40" SJRWMD application code referenced in the COE Public Notice is the code that represents a "General" permit that the applicant attempted to qualify for, under the guise of less than an acre of wetland impact. In reality, the permit application being considered by the SJRWMD is a "4", which is the code for an "Individual Environmental Resource Permit". Code "4" permits are required for projects with considerably greater impacts than SJRWMD code "40" permits. Since the Public Notice also clearly indicated that "A State Water Quality Certification/Permit" had not been issued at the time the Public Notice was published (but clearly is required), the referenced Public Notice was premature. Such premature postings represent a significant waste of taxpayers' time and money, for example requiring unnecessary review time by 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.
G. IMPACT ON NATURAL RESOURCES:
The final page of the referenced Public Notice (signed by Chief John R. Hall) states, in full:
"Preliminary review of this application indicates that an Environmental Impact Statement will not be required. Coordination with U. S. Fish and Wildlife Service, Environmental Protection Agency (EPA), the National Marine Fisheries Services, and other Federal, State, and local agencies, environmental groups, and concerned citizens generally yields pertinent environmental information that is instrumental in determining the impact the proposed action will have on the natural resources of the area. By means of this notice we are soliciting comments on the potential effects of the project on threatened or endangered species or their habitat." [emphasis added]
ENVIRONMENTAL IMPACT STATEMENT AND CUMULATIVE IMPACTS
54. The purpose of an Environmental Impact Statement (EIS) is to identify the magnitude and extent of the myriad adverse impacts that are likely to occur from a project that may have multiple, far-reaching adverse impacts. The referenced proposed project is a prime example of such. It is clear that neither the applicant nor the COE are capable of determining the magnitude and extent of all of the countless, probable adverse impacts associated with this proposed project. 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), within a 30 day comment period, particularly when the Public Notice fails to include even the basic information necessary (and required) for such a review (e.g., the type, nature and function of Waters of the United States/wetlands on the site; a detailed Alternatives Analysis; Avoidance and Minimization information; Public Interest evaluation), as is the case with the referenced Public Notice. Therefore, a full EIS, as well as an exhaustive Cumulative Impacts analysis is essential to determine the probable impacts of this proposed project.
55. Before a scientifically-based EIS and comprehensive Cumulative Impacts analysis can be completed, a basic understanding is required of the intimate connection between surface waters and ground waters in Florida, as well as how the native plants and animals respond to anthropogenic alterations of the natural conditions. A synopsis of Florida's hydroecology (the interaction between organisms and their water environment) is provided in EXHIBIT 24.
56. A full EIS and comprehensive Cumulative Impacts analysis will include adverse impacts beyond those narrowly constrained to Natural Resources, such as the economic impacts of natural resources that are permanently destroyed. For your convenience, EXHIBIT 25 provides a synopsis of the January 1997 report by the US Council on Environmental Quality, Executive Office of the President, entitled, "Considering Cumulative Effects Under the National Environmental Policy Act", describing what Cumulative Impacts are. Examples of only some of the types of impacts that will be inevitable, if the proposed project is permitted and constructed as proposed, are provided below.
57. Examples of cumulative impacts can be seen on the USGS quadrangle maps provided in EXHIBIT 2a-d. The extensive purple areas on the USGS maps (photorevised in 1993) within the watershed complex where this proposed project is located designate recent development, with the geometric purple stippled areas indicating dredged areas. The "densely built-up areas", where most individual buildings are omitted from the USGS maps, are shaded in pale red, with more recent "densely built-up areas" shaded in purple and without the buildings shown.
58. On January 9, 2002, an Associated Press article by John Heilprin titled "Pregnant women should avoid tap water, study says..." was published in the Orlando Sentinel. The article described toxic chemicals that are in "potable water". The proposed project simply would introduce more toxic contaminants into this area of Florida's regional aquifer system and source of potable water. This additional contamination of the aquifer system results in another type of adverse cumulative impacts on natural resources.
59. Extensive and significant adverse impacts are associated with the dredging of pits. Those adverse impacts include impacts to the aquifer system (surficial aquifers and the regional Floridan aquifer), and associated wetlands, streams, and lakes. In Florida, pits are dredged for various reasons, including to produce raw materials for fill, road construction, and concrete for structures and parking lots. The proposed WalMart Supercenter will require extensive fill and related raw materials for the construction of the parking lot and structures. The Public Notice provides no information regarding the source of such fill material.
60. A large supplier of such raw materials for construction in Volusia County is Rinker Brothers, with locations in New Smyrna Beach, Daytona Beach, DeLand, Ormond Beach, and Bunnell. Your agency recently issued an Individual Permit to Rinker Brothers for the dredging of approximately 1,000 acres of pits in Everglades wetlands, in the Miami-Dade County area. There was no specification regarding where, and in what capacity the raw materials dredged from the Rinker Brothers pits would be used. It is conceivable that the raw materials from those pits could be used to construct the proposed project, or may constitute other cumulative impacts of the proposed project. Consequently, the cumulative impacts of the proposed WalMart Supercenter project may include adverse impacts to the regional aquifer system in south Florida, including adverse impacts to the Everglades wetlands (where those pits are located), in addition to the adverse impacts to the regional aquifer system in the Volusia County area.
61. Your letter to me dated April 11, 2002 (EXHIBIT 26), regarding the Rinker Brother pits (referenced in the preceding paragraph) stated, "A public hearing is not held unless additional information is necessary to make a decision on the application." No comprehensive Cumulative Impacts analysis was conducted for that project, to consider the adverse impacts such as those that would occur at the sites where the dredged material would be discharged (e.g., as fill material). The full adverse impact of a proposed project on the public interest cannot be determined without considering all of the cumulative impacts of that project. Therefore, by not conducting a comprehensive Cumulative Impacts analysis and refusing to hold the Public Hearing I had requested (to facilitate identification of the cumulative impacts), the COE methodically excluded consideration of adverse cumulative impacts that may have involved the proposed WalMart Supercenter project.
62. Likewise, by failing to identify the source of the dredged material for the reported approximately 9 acres of fill that is proposed to be discharged into Turnbull Creek tributaries and floodplain wetlands, in addition to fill proposed to be discharged into other riparian areas of Turnbull Creek, the COE will be incapable of identifying all of the adverse cumulative impacts associated with the proposed WalMart Supercenter project, and the ultimate impact of the proposed project on the public interest.
63. In addition to the adverse off-site cumulative impacts at the unidentified "donor site" where the fill and other raw construction materials would be dredged (as referenced in the preceding paragraphs), adverse off-site cumulative impacts of the proposed filling of Turnbull Creek tributaries, flood plains, and other riparian areas would include increased flooding in the surrounding areas. Such increase in off-site flooding is inevitable because the depressional wetlands on the site of the proposed project function as preferential points of aquifer discharge, as well as aquifer recharge. Confirmations of this phenomena were made during each of my site inspections, as I witnessed ground water being discharged, or evidence of such discharge throughout the site. The large stormwater pit proposed to be dredged on the site is designed to receive stormwater generated from the vast impervious surfaces proposed for the site, and are incapable of accommodating the discharging ground water. Furthermore, the proposed stormwater pit and the remainder of proposed WalMart Supercenter project will disrupt both the natural discharge and recharge of the ground water.
64. Additional adverse off-site impacts, including adverse cumulative impacts, from the proposed WalMart Supercenter would include significant decreased air quality and native wildlife, as well as increased traffic and noise in the surrounding community. I have personal knowledge and experience regarding those specific adverse impacts. Within the first year of the construction of the WalMart Supercenter on a formerly densely-wooded site (similar to the site of this proposed project) in my rural neighborhood, traffic in the entire area increased from virtually nonexistent to levels that produce a near-deafening drone, even at distances up to a mile from the location of the "Supercenter". Particulate matter has increased to levels that coat my plants and everything else in my yard, and pour in the open windows, covering everything inside and resulting in respiratory problems to me. Crows also invaded the neighborhood following the destruction of the densely-forested site in my neighborhood and replacement of the forest by the WalMart Supercenter. The crows raid the nests of the native birds in my yard and formerly-rural neighborhood.
65. As indicated below, the water I have observed flowing through and discharging from the proposed site for the WalMart Supercenter is virtually devoid of nutrients and other urban contaminants (as evidenced by the lack of nuisance algae, other plants, and turbidity). I have personal knowledge of the significant adverse impacts from eutrophication and other contaminant-loading that have occurred to this and other receiving waters in Volusia County as the result of the incorporation of stormwater "treatment" systems and overflow discharges similar to the one proposed at the referenced site. Page 3 of the Riparian Report states that a "1998 summary of polluted waters for all 50 states indicates there are more than 300,000 miles of rivers and streams and more than 5 million acres of lakes that do not meet state water-quality standards". Contaminating this virtually pristine section of Turnbull Creek would represent a significant adverse cumulative impact to water quality of streams in Volusia County, east-central Florida, Florida, and the entire country.
66. Hydrologic alterations associated with the proposed project, such as demucking, dewatering, filling, ground water withdrawals for irrigation/potable use, and dredging of the stormwater pit would result in additional adverse impacts, including cumulative impacts, both on-site and off-site. The Riparian Report addresses adverse impacts associated with hydrologic alterations, as follows:
"The extent to which downstream riparian areas are affected by these changes depends upon the degree of flow and sediment alteration plus the capability of the riparian plant communities to respond to these changing environmental conditions." [p. 134]
"Withdrawals, both from surface waters and groundwater, can have serious deleterious effects on riparian area functioning because of the lowering of water tables in the vicinity of riparian vegetation. Groundwater pumping for municipal and industrial water supply and agriculture.......is increasingly common.......Assessments of impacts of groundwater withdrawal rarely take riparian areas into account." [p. 145]
"Because groundwater and surface water are generally connected in floodplains, declines in groundwater level can also come about as an indirect effect of surface water withdrawals....." [p. 145]
67. Based on my research, personal experience, professional knowledge, and scientific literature, the near-pristine, forested "riparian plant communities" on the proposed site (which represents the entire site), as well as extensive areas off-site areas of "riparian plant communities" are incapable of adapting to the types of hydrologic alterations described above, that would be associated with the proposed project. Therefore, those on-site and off-site "riparian plant communities" will be destroyed if the proposed project is permitted and constructed as proposed. The destruction of extensive on-site and off-site "riparian plant communities" that would result from the proposed project represents another adverse cumulative impact of the proposed project.
68. The destroyed "riparian plant communities", referenced above, include extensive areas of wetlands. Table 3-4 in the Riparian Report (page 183) summarizes the acres of wetlands lost, by state, from the 1780s to the 1980s. According to the estimates included in that table, Florida had lost more than 9 million acres of wetlands (approximately 46% of the total acreage) by 1980. Extensive losses of additional wetlands acreage have occurred in Florida since 1980. For example, refer to the purple areas within the flood plains on the USGS quadrangle maps (EXHIBIT 2a-d) for the most recent riparian/wetlands losses in the Turnbull Creek watershed complex. The additional loss of wetlands associated with this proposed project would represent additional cumulative impacts to wetland losses that already have occurred, and would include depressional wetlands that are critical nesting and foraging habitat for the federally-endangered wood storks.
69. Other examples of cumulative impacts that would result from the proposed project, if permitted and constructed, are those associated with the extensive use of impervious surfaces. Figure 3-12 in the Riparian Report (page 167) illustrates the relationship between impervious surfaces, recharge (infiltration) of both the shallow and deep aquifers, shallow subsurface flow, and overland flow (which becomes stormwater runoff when natural areas are converted to impervious surfaces). For example, with natural cover (the condition of the proposed WalMart Supercenter now), an estimated 10% of water falling on the site would leave as uncontaminated "overland flow" (surface discharge), while an estimated 25% would become deep recharge to the aquifer system. With 75-100% of the site covered with impervious surfaces (the condition of the proposed WalMart Supercenter if permitted and constructed), an estimated 55% of water falling on the site would leave as contaminated stormwater runoff ("overland flow"), while deep recharge to the aquifer system would be reduced to only 5%. This represents a significant adverse cumulative impact to the aquifer system, particularly the Volusia-Floridan Sole Source Aquifer (EXHIBIT 7).
70. The current loss of natural recharge areas has resulted in multi-million dollar proposals for controversial, environmentally-destructive artificial "recharge" of the aquifer for this county (EXHIBIT 19). Therefore, additional loss of natural recharge areas that would result from this propose IP project would represent a significant cumulative impact to the regional Floridan aquifer system, as well as to the Volusia-Floridan Sole Source Aquifer.
71. Also in addition to the large-scale adverse environmental impacts that the proposed project would have if the permit was issued, and the economic impact of searching for alternative sources for potable water, other large-scale adverse cumulative economic impacts would occur in the area. I have personal knowledge of such adverse economic impacts associated with the opening of such facilities, which result in the closure of countless long-time local retail facilities. That is precisely what happened in my neighborhood when the WalMart Supercenter was constructed.
72. The FEAR video (EXHIBIT 16) provides a more detailed discussion of the adverse economic impacts of converting undeveloped land, such as the proposed site, to intensely-developed land. That video also includes related comments by a prominent economist from the University of Florida.
H. IMPACT ON CULTURAL RESOURCES:
The final page of the referenced Public Notice (signed by Chief John R. Hall) states, in full:
"Review of the latest published version of the National Register of Historic Places indicates that no registered properties, or properties listed as eligible or inclusion therein, are located at the site of the proposed work. Presently, unknown archeological, scientific, prehistoric, or historical data may be lost or destroyed by the work to be accomplished." [emphasis added]
73. A final report dated August 2001, and titled "Cultural Resource Assessment Survey of Wal-Mart New Smyrna Beach, FL, Store No. 1079-01, RSC, Huntington Site, Volusia County", was prepared by Janus Research and submitted to Kimley-Horn and Associates, Inc., the applicant/agent for the referenced proposed project. It appears that the applicant neglected to share the information in this report with your agency. The findings of that 55+ page report were summarized in the cover letter dated 8/30/01 from Janus Research to Janet Snyder Matthews, Ph.D., Director and State Historic Preservation Officer (EXHIBIT 9). The historical significance on the channelized tributaries and other cultural resources on the proposed project site are summarized as follows:
"As a result of a cultural resource assessment survey, three newly recorded historic resources (8VO7212, 8VO7213, and 8VO7125) and one newly recorded archaeological site (8VO7214) were identified.......canals that are part of a larger drainage system. Because this resource maintains historical significance, it was considered potentially eligible for inclusion in the NRHP. It is the opinion of this agency that the proposed development and associated stormwater management system may significantly impact the Turnbull canal features. Measures to avoid and/or preserve the canals should be investigated." [emphasis added]
74. The letter from Janus Research dated August 30, 2001, transmitting the referenced report to Dr. Matthews (EXHIBIT 9), recommended further work to determine the National Register of Historic Places (NRHP) eligibility of the newly recorded archaeological site (8VO7214). The results of the cultural assessment were provided on pages 39 through 48 of the Janus Report (EXHIBIT 27). Page 39 indicated that this new archaeological site might be a well site and reiterated the need for further work to determine the function of the newly recorded archaeological site (8VO7214), "to determine if any structures existed or if it is related to agricultural development." During my various inspections of the proposed site I observed wild orange trees growing under the dense canopy of native trees. The wild orange trees generally were associated with the stream systems and may support the position that the site was utilized in the late 1700s to produce citrus (i.e., agricultural development). Pages 40 (Figure 8) and 41 (Figure 9) of the Janus Report provide the location map and site sketch, respectively, for that archeological site. The site sketch identifies a depressional area in proximity to the stone foundation that was referenced as a possible historic well site. Page 42 of the Janus Report indicates that the canal system on the proposed project site may date back to the late 1760s.
75. Based on my knowledge of the hydrologic conditions on and in the vicinity of the proposed site for the WalMart Supercenter, it is possible that the depression depicted in Figure 9 of the Janus Report may be a subsidence depression related to groundwater withdrawals from the former New Smyrna Beach well field. That well field subsequently was relocated farther to the west because of saltwater intrusion. A subsidence depression appears to have formed, and is enlarging at the New Smyrna Sugar Mill Ruins State Historic Site (approximately 1 mile east of the proposed project site). The inevitable and probable adverse impacts to ground water that would be associated with this proposed project, if permitted and constructed, could destroy this newly recorded archaeological site.
76. The cover page of the August 30, 2001, transmittal letter from Janus referenced a cistern (historic resource 8V07059) "located west/northwest of the project area". They concluded that this historic resource "will not be impacted by development activities associated with the proposed Wal-Mart Supercenter." Although that historic resource may not be affected adversely by the direct impact associated with the surface footprint of the proposed project, adverse impacts to that historic resource may occur as the result of adverse indirect and/or cumulative impacts of the proposed project, such as the demucking, dewatering, and additional groundwater withdrawals that would be associated with the proposed project. Likewise, cultural resources at the Sugar Mill Ruins State Historic Site, as well as the Spruce Creek Timucan mound site may suffer permanent adverse impacts as a result of the groundwater alterations that would be associated with the proposed project. Refer to the following web site, http://volusia.com/history/natives/index.htm, for additional background information about those important cultural resources.
77. The COE's regulations require evaluation of the impact of proposed projects on the historic, scenic, and recreational values of the area, in addition to the cultural resources (33 CFR ¤ 320.4(e)). The Public Notice fails to provide essential information regarding the direct, indirect, and cumulative adverse impacts of the proposed project on the historic, scenic, and recreational values of the area, in addition to the cultural resources. Therefore, it is impossible for the public to provide meaningful, comprehensive comments regarding this proposed project, due to the lack of information provided by the COE's Public Notice. Existing information is sufficient to know that the adverse impacts of the proposed project would be significant, permanent, and wide-spread, however, a full EIS and comprehensive Cumulative Impacts analysis are needed to determine the full adverse impacts that would be associated with the referenced proposed project.
78. Despite the absence of a full EIS and comprehensive Cumulative Impacts analysis, the adverse direct, indirect, and cumulative impacts of this project would include (but not be limited to) the permanent loss of the scenic public and private forested areas of New Smyrna Beach, and the Turnbull Creek (Bay)/Spruce Creek (Strickland Bay)/Rose Bay watershed complex, including injury to public and private property. In addition to the scenic values provided by the naturally forested areas in this community and watershed complex, this area contains many historic, cultural, and recreational values, examples of which were provided above. Examples in closest proximity to this project site include the historic Sugar Mill ruins to the south, Turnbull Creek tributaries on the site and to the north, and Spruce Creek State Preserve. The most likely cause of the recent subsidence (e.g., sinkhole creation or re-activation) observed at the Sugar Mill ruins site and the premature decline and death of trees at the Spruce Creek State Preserve is adverse direct, indirect, and cumulative impacts of permanent reductions of natural recharge to the aquifer system, coupled with excessive groundwater withdrawals associated with NWP and IP projects permitted by the COE, such as this proposed project.
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. [emphasis added]
.....Comments are used in the preparation of an Environmental Assessment and/or an Environmental Impact Statement pursuan