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Residential Development in Jacksonville Comment Letter
Lesley Blackner, Esquire
123 Australian Avenue
Palm Beach, FL 33480
tel: (561)659-5754
fax: (561)659-3184
March 26, 2001
By Fax and U.S. Mail
Ms. Bev Lawrence
Department of the Army
Jacksonville Regulatory Office
P.O. Box 4970
Jacksonville, FL 32232
Re: Bartram Trading Company, Ltd.
Permit application 200004782(IP-BL)
Dear Ms. Lawrence:
This letter is submitted on behalf of Floridians for Environmental Accountability and Reform, as comments on the permit referenced above. I apologize for being 30 days late with this comment, but it is my understanding that comments are accepted until a final decision on the permit application is rendered.
The permit requested was for the dredging and filling of the lakebottom property to create a peninsula on which approximately 14 expensive, single-family houses were to
be built. Housing is generally considered to be a nonwater-dependent activity. Housing specifically, and nonwater dependent activities in general, in special aquatic sites in waters of the United States, is almost always denied permits because the presumption exists that there are water-dependent practical alternatives in aquatic sites that are not as environmentally damaging as nonwater-dependent activities. Thus, [the landowner's] dredge and fill permit request presented a difficult hurdle in its attempt to demonstrate a least damaging practicable alternative to the Corps.
39 Fed.Cl. at *65. (Emphasis added.) The trial included the testimony of Corps' career employee John Winn, "formerly Acting Regulatory Branch Chief of the Corps of Engineers," whose testimony is summarized at *78:
In many ways, [the landowner's] attempt to dredge and fill the lakebottom property in order to build a residential project was a quixotic quest from the outset. Mr. John Winn…testified that, based on his experience since he began with the program at its inception in 1974, housing has never been considered a water-dependent activity. Thus, if an applicant proposes a nonwater-dependent use (i.e., a housing project), it is presumed that there are less damaging alternatives. Therefore, in his view, the nonwater-dependent status of a housing project makes the likelihood of securing a section 404 permit extremely unlikely. In his entire career, Mr. Winn testified that he was not aware of any section 404 permit applications that had been issued for housing on fill in the waters of the United States that constituted aquatic sites ([the landowner's] situation here).
(Emphasis added.) The appellate court affirmed the decision, finding, among other things, "As a practical matter, this means that few, if any, dredge or fill permits will be granted for the construction of housing." 177 F.3d at 1363.
Because the law is so clear, the question is raised: why are dredge and fill permits routinely issued by the Corps for residential developments and multi-use developments in Florida?
3. Moreover, 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.
4. Given the size of the proposed project and the large impact to wetlands, a detailed analysis of practicable alternatives must be provided, in accordance with Regulatory Guidance Letter, No. 93-2, "Guidance on Flexibility of the 404(b)(1) Guidelines and Mitigation Banking" 11 (August 23, 1993), which provides in relevant part that "The amount of information needed to make such a determination and the level of scrutiny required by the [Section 404(b)(1) Guidelines] is commensurate with the severity of the environmental impact and the scope/cost of the project." The guidance establishes less stringent alternatives review for projects that would have only minor impacts. It also provides that "[g]enerally, as the scope/cost of the project increases, the level of analysis should also increase." Corps' rules require detailed analysis of alternatives for this proposed project.
5. I find nothing in the regulations to justify the issuance of the 25-year permit. Please explain by what regulatory or statutory authority the Corps is empowered to issue a 25-year permit.
6. There is no analysis of how remaining wetlands will function. How will their ability to act as habitat be affected? Will they continue to serve other wetlands functions such as provision of water purification? The Public Notice indicates that the remaining wetlands (which will be stressed by draining) will be entirely surrounded by development and roads. How will the wetlands function surrounded by development and roads? Are these wetlands part of a larger mosaic of wetlands, and if so, how will the wetland system be impacted?
7. It is hard to believe that dense development is being permitted in and around a well site! What impact will this project have upon the well site, and the area’s potable water supply? What impact will this project have upon the groundwater in the vicinity? Under the National Environmental Policy Act, the Corps is charged with assuring that groundwater quality and quantity is not effected by a dredge and fill activity. This project will not only degrade surrounding, remaining wetlands, but it will also result in a great increase in demand for water. What impact will this have on water resources?
8. Has FEMA been consulted on this proposed activity? This is a very low-lying area of which nearly one fourth are jurisdictional wetlands. This area is in a floodplain. The
9.
10. probability of flooding of adjacent properties that will result from the construction of this proposed activity must be completely evaluated and analyzed,
11. No discussion of whether and to what extent this proposed project will "cause or contribute to significant degradation of the waters of the United States" is provided, as required by 40 C.F.R. 230.10(c). The 1999 U.S. Geological Survey Open-File Report 99-181 indicates that the proposed project site is within the watershed of the Durbin Creek watershed. Has the applicant analyzed the impacts of the proposed activity to the watershed?
12. The quality, function, and character of the wetlands are not specified in sufficient detail to allow for adequate comment.
13. No information has been provided regarding wildlife surveys conducted on the property to determine the presence or absence of critical habitat for these and related listed species. The public notice provides no information regarding how the cumulative impacts of wetland destruction and alteration proposed by this permit application will affect wildlife, including listed species that are dependent on these wetlands and other wetland-dependent species. Because this project is so close to publicly owned lands, it may well impact federally protected species.
14. 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. . These include, but are not limited to:
· Fragmentation of the landscape
· Damage to abutting publicly owned lands
· Impacts to floodplain
· Increases in human population
· Impacts to the demand for municipal services
· Impacts to wildlife, including federally listed species
· Negative environmental impacts of golf courses
· Increased demand for water
· Creation of sprawl
· Impacts to water quality and aquifer recharge
15. 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 flood on nearby and contiguous properties that may result from this proposed activity must be completely evaluated and analyzed.
16. The applicant proposes to "preserve" 131.63 acres of wetlands onsite. What is meant by the term “preserved”? These wetlands can be in no way deemed “preserved” because they will be surrounded by development and drained as a result of the “storm water management” protocols put in place. Please explain how this compensates for the destruction of approximately 26.51 wetland acres. There is a net loss of 26.51 acres of wetlands. Does the Corps follow its no net loss policy?
17. Has the applicant analyzed how this project will impact the abutting publicly owned lands?
18. 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.
19. Regarding the Public Interest Review required by 33 C.F.R. 320.4, no information is provided with respect to the following elements of the review. Please provide adequate information to allow proper comment on the following:
Thank you for your consideration of these comments and I look forward to hearing from you soon. In the event a permit is issued for this proposed activity, I request a copy of the EASOF, permit and any alternatives analysis provided.
Sincerely yours,
Lesley Blackner
EPA
John Hall, Corps
FEMA
John Hankla, U.S. Fish & Wildlife Service
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