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Orange County Dump Comment Letter
Lesley Blackner, Esquire
123 Australian Avenue
Palm Beach, FL 33480
tel: (561)659-5754
fax: (561)659-3184
February 16, 2001
By fax & U.S. mail
Stephen Brooker
Department of the Army
Jacksonville District Corps of Engineers
Merritt Island Regulatory Field Office
2460 North Courtenay Parkway
Suite 216
Merritt Island, FL 32953
Re: Orange County Landfill
ACOE Permit No. 199905437(IP-TB)
Dear Mr. Brooker:
This letter is submitted on behalf of Joe Murphy, Southeast Organizer for the Endangered Species Coalition, 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 destroy over 72.50 acres of jurisdictional wetlands to construct a landfill over a 25-year period. Please explain by what regulatory authority the Corps is empowered to issue a 25-year permit.
2. Please explain what is meant in the public notice by the term "conceptual permitting." I find no precedence for this form of permitting in the Corps' regulations. I question whether such "conceptual permitting" complies with the Clean Water Act and the National Environmental Policy Act.
3. Has a comprehensive Environmental Impact Study (EIS) been prepared for the proposed activity? Given the large scale of the proposed activity, the large number of wetlands involved, and the fact that the property has historically been owned by the United States, it would appear that the proposed activity can not go forward prior to completion of a comprehensive EIS. If such a study has been prepared, this letter constitutes a formal request pursuant to the Freedom of Information Act for a copy. If such a study has not been prepared, please explain why.
4. A landfill 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.
5. 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, which can hardly be provided, given that the proposed activity is "conceptual" at this time.
4. The wetland areas described by the application in general terms. No list of plant species is provided, nor is there any description of the condition of the wetlands, their quality and level of function. This information must be provided to allow adequate comment. Nonetheless, wetlands comprised of "a mix of cypress and hardwoods" constitute valuable wetlands deserving of protection.
5.
With respect to wildlife and federally listed species, it is suggested
that the Corps review "Habitat Conservation Needs of Rare and Imperiled
Wildlife in Florida" and "Closing the Gaps in Florida's Wildlife Habitat
Conservation System.
It is my understanding that the proposed activity is within a corridor of the
state's ecological network. The state of Florida regards the preservation of
the area in which the proposed activity is located as an important priority
for preserving Florida's dwindling biodiversity.
6. Has the Corps complied with its obligations under the Endangered Species Act to prepare a biological assessment and complete a thorough section 7 consultation with the U.S. Fish and Wildlife Service on this proposed activity? Please provide documentation of such compliance.
7. Please provide analysis for why the Corps determined that this proposed project "is not likely to adversely affect" the scrub jay, the bald eagle, or the red-cockaded woodpecker. This determination was made in error. The Corps must first make a "no effect" or a "may affect" determination, based on adequate information and documentation, none of which is available in the public notice.
8. 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 of this project. These include, but are not limited to:
· Fragmentation of the landscape
· Impacts to floodplain
· Increases in human population
· Impacts to the demand for municipal services
· Impacts to wildlife, including federally listed species
· Increased demand for water
· Creation of sprawl
· Impacts to water quality and aquifer recharge
· Loss of biodiversity
9. 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). What impact will this enormous project have upon the integrity of the region's water supply? What impact will this project have upon the surficial aquifer? Has the integrity of the Wide Cypress Swamp as a watershed been considered in the course of the permit review process? Have the direct, secondary and cumulative impacts upon the watershed been reviewed?
10. Has FEMA been consulted on this proposed activity? This is a very low-lying area of which about one third are jurisdictional wetlands. The possibility of flooding on nearby and contiguous properties that may result from this proposed activity must be completely evaluated and analyzed.
11. The proposed activity is near existing and proposed conservation lands must be addressed. What impact will the activity have upon the conservation of those lands, and the ecological value of those lands?
12. Why is the mitigation only "conceptual"? How can the public responsibly comment upon a proposed activity when the mitigation is not even perfunctorily spelled out? Given that the entire dredge and fill program in the state is justified on the ridiculous, bizarre, unscientific yet convenient presumption that all impacts are magically voided by "mitigation," the public deserves, at the very least, to have the parameters of the "mitigation" set forth. It would appear nonetheless, that the proposed project will result in a net loss of at least 72.50 acres of wetlands. Accordingly, the question must be asked, whatever happened to the Corps' no net loss policy?
13. The public notice provides no analysis of how the proposed dredge and fill will affect remaining abutting and nearby wetlands, including their hydrology and hydroperiods. Please analyze how remaining wetlands, chopped up and fragmented by this proposed project, will function. How will their ability to serve as habitat be affected? Will they continue to serve other wetland functions such as water purification and flood control? How will remaining wetlands function surrounded by development? These wetlands are part of a larger mosaic of wetlands, and if so, how will the entire wetland system be impacted?
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:
This proposed activity looks like a sweetheart deal cooked up in the name of "economic development." Through this letter I formally request, pursuant to the Freedom of Information Act, a copy of any EIS, Environmental Assessment, Biological Assessment and ESA compliance correspondence.
Thank you for your consideration of these comments and my public records request. I look forward to hearing from you soon.
Sincerely yours,
Lesley Blackner
cc
John Hankinson, EPA
Haynes Johnson, EPA
Beverly Banister, EPA
David Hankla, Field Supervisor, Fish & Wildlife Service
John Hall, Corps
FEMA
Florida Fish & Wildlife Conservation Commission
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