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Road Widening Comment Letter
Lesley Blackner, Esquire
Blackner, Stone & Associates
123 Australian Avenue
Palm Beach, FL 33480
tel: (561)659-5754
fax: (561)659-3184
June 9, 2001
Mr. Richard White
Department of the Army
Jacksonville District Corps of Engineers
Merritt Island Regulatory Field Office
2460 North Courtenay Parkway
Suite 216
Merritt Island, FL 32953-4192
Re: Permit Application No. 200002543(IP-RW)
State Road 520 in Orange County
Dear Mr. White:
This letter is submitted on behalf of Floridians for Environmental Accountability and Reform, as comment upon the above referenced permit application. This comment is submitted in recognition that the permit application is disturbingly deficient and incomplete. It fails to provide sufficient information for adequate comment. Gross deficiencies in the public notice are thus noted, and it is expected that further comment will be allowed once sufficient information is provided.
1. No description of the wetlands condition is provided, their type, vegetation, or characteristics, much less their quality and level of function. Please provide so that adequate comment can be made.
2. According to the public notice, the applicant proposes to destroy 47.27 acres of wetlands for road building. A road is not a water dependent activity. 40 C.F.R. 230.10(3) specifies that the discharge of dredge and fill material in a water of the United States is not permitted for activities that are not water dependent, unless the applicant adequately demonstrates that there are “no practicable alternatives” to performing the activity in the wetland. Because a road is not a water dependent activity, "practicable alternatives that do not involve special aquatic sites are presumed to be available, unless clearly demonstrated otherwise." 40 C.F.R. 230.10(a)(3). Has the applicant overcome the presumption that practicable alternatives are available for non-water dependent activities such as this one? The public notice provides no reference to any analysis of practicable alternatives that were provided. If such analysis has not been provided, the application should be denied.
3. It would appear that there is an obvious “practicable alternative” to destroying nearly 50 acres of waters of the United States is to add lanes to SR 520. The public notice states that the road already has “3 passing lane sections in the westbound direction and 2 passing lane sections in the eastbound direction.” These should be converted into additional traffic lanes, thereby giving DOT the lanes it claims it needs.
4. Moreover, the public notice does not indicate that any analysis has been provided to avoid wetlands loss or even to minimize such loss, as required. It is presumed by law that all wetland impacts for non-water dependent activities are avoidable. All wetlands, particularly large wetland systems, must be bridged to assure hydrological and ecological connectivity. Has such analysis been provided by the applicant?
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." The rules require detailed analysis of alternatives for this proposed project.
6. Why has there 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.
7. 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). Did the applicant provide analysis of how this project will affect the watersheds of the Long Branch-Econlockhatchee River and the Second Creek-Tosohatchee River? Federal law requires that the cumulative, direct, and indirect impacts of this proposed activity, and its concomitant loss of wetlands and wetland function, must be comprehensively analyzed.
8. It appears that this proposed project cannot be accomplished without dredge and fill of wetlands. Therefore, Corps' jurisdiction extends to the entire project, including the passage of SR 520 through publicly owned conservation lands, under 33 C.F.R. 230, Appendix B, section 8(a). Was an Environmental Impact Statement (“EIS”) prepared for this proposed activity, as required by the National Environmental Policy Act (NEPA)? If an EIS has been prepared, I formally request a copy under the Freedom on Information Act.
9. The public notice indicates that the proposed activity is “one phase of a multi-phased project.” My understanding is that DOT has segmented this project into three sections. Why is the widening of SR 520 being segmented for purposes of Army Corps’ permitting and environmental review? Segmentation of projects violates NEP because it avoids mandated analysis of the cumulative impacts of an entire road project. Indeed, Council on Environmental Quality Regulation 40 CFR §1502.4(a) provides: “Proposals or parts of proposals which are related to each other closely enough to be, in effect, a single course of action shall be evaluated in a single impact statement.” DOT plans to widen the entire highway; therefore, a single EIS must be prepared for SR 520, if it has not yet been done.
10. The applicant states that the goal of the project is to accommodate increased traffic volume along this corridor. Please see the article annexed hereto, “Traffic Hell Not Relieved by Road building” dated May 2001 which states that a new study by the Surface Transportation Policy Project “finds that places adding roads most aggressively over the past 10 years have had no grater success in fighting congestion than those not adding roads.” The study “shows that while road building is the traditional response to traffic congestion, it has done little to clear the roadways, while transit service does in fact lessen the burden of congestion on many commuters.” The fact that road building in Tampa has not lessened traffic is born out by the May 10, 2001 Tampa Tribune article, “Life in the slow lane,” which states that Tampa added 51.5 percent to its road capacity in the 1990s, while its population went up 25.7 percent, and yet traffic is much worse than ten years ago. A copy of the article is annexed hereto. Certainly, the increased traffic resulting from road building is a cumulative and secondary impact of the proposed project. Does the applicant have any peer reviewed study or studies demonstrating that widening roads actually alleviates traffic congestion? This proposed activity is just another milestone in DOT’s plan to suburbanize the entire state. The ostensible purpose of alleviating traffic will not be achieved by this proposed activity. Traffic will become much worse once this project is completed because the area will be opened up to more traffic, as well as more residential and commercial development. The applicant must address these points.
11. I have learned that significant federal highway funding is being used by DOT to fund two of the three segments of this project? That being the case, has a 4-F review been completed? The proposed project will directly traverse publicly owed lands that are expressly managed for recreation and wildlife. The statute is triggered in precisely such a scenario as the present one. The Eleventh Circuit Court of Appeals has addressed the applicability of 4(f) in several opinions. Decisions of the Eleventh Circuit are binding authority in Florida. The Eleventh Circuit's rulings are binding authority upon the Federal Highway Administration operating in Florida. In Coalition Against a Raised Expressway, Inc. v. Dole, 835 F.2d 803 (11th Cir. 1988), the court addressed the issue of 4(f)'s applicability·. The court ruled:
The only issue that the defendants appeal is the requirement that they comply with section 4(f) of the Department of Transportation Act. Section 4(f) forbids the construction of a highway that uses a public park or land of an historic site unless
(1) there is no feasible and prudent alternative to the use of such land, and
(2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use.
49 U.S.C. § 303 (1982). Section 4(f) is triggered if the highway either directly or indirectly uses the protected land. Citation omitted. Indirect impacts that might be sufficient to constitute a "use" include noise pollution, general unsightliness, and the reduction of access to the protected area. Citation omitted.
11. In the case of SR 520, the Tosohatchee State Reserve, Long Branch Park, and the Hal Scott Regional Preserve and Park will be impacted by the proposed activity. Indeed, the proposed widening of SR 520 from SR 50 to just south of SR 528 is almost entirely within the Florida Ecological Greenways Network.
12. The public notice states, “no threatened or endangered species or related habitats were observed on site (within the existing and proposed right-of-way).” I find this statement extraordinarily hard to believe. Initially, the Corps and the DOT should consult with “Closing the Gaps in Florida’s Wildlife Habitat Conservation System” and “Habitat Conservation Needs of Rare and Imperiled Wildlife in Florida” by the Florida Game and Fresh Water Fish Commission. These reference publications indicate that the following species have been identified in the area: fox squirrel, great egret, mottled duck, limpkin, American Swallow-tailed kite, wild turkey, southern bald eagle, mottled duck, black rail, gopher tortoise, fall-flowering ixia, bobcat, southern bald eagle, southeastern American Kestrel, little blue heron, snowy egret, white ibis, great egret, wild turkey, eastern indigo snake, gopher tortoise and nodding pinweed. Moreover, I have learned that a small bear population resides with the Tosohatchee State Reserve and an a sub adult male black bear was killed on SR 520 just north of SR 528 in 19999. The land around this section of SR 520 is predominately intact landscape of pine flatwoods, forested swamps, and some pastures that could definitely support bears.
13. Moreover, the public notice indicates, “no threatened or endangered species or related habitats were observed on site (within the existing and proposed right-of-way.)” The right-of-way is not the proper focal point of the environmental review of this proposed activity. I serve currently as plaintiffs’ counsel in Sierra Club v. USACOE, a federal action filed in the Middle District of Florida against the Corps and DOT Secretary Thomas Barry regarding the improper permitting of the Suncoast Parkway 1 north of Tampa. One of the key points of the litigation concerns Sierra’s assertion that the Corps and DOT failed to comply with NEPA and the Endangered Species Act because the environmental review for the road was confined to ½ mile on either side of the alignment. This survey area does not correspond to the area to be surveyed under federal law.
Section 7 of the ESA, 16 U.S.C. § 1536(c) requires a federal agency to prepare a Biological Assessment ("BA") for "Federal actions that are 'major construction activities'…" 50 C.F.R. § 402.12(a)(1). The term is defined by 50 C.F.R. § 402.02:
"Biological assessment" refers to the information prepared by or under the direction of the Federal agency concerning listed and proposed species and designated and proposed critical habitat that may be present in the action area and the evaluation of potential effects of the action on such species and habitat.
The ESA regulations also define "effects of the action," as that term is used in the preparation of a BA:
"effects of the action" refers to the direct and indirect effects of an action on the species or critical habitat, together with the effects of other activities that are interrelated or interdependent with that action, that will be added to the environmental baseline. The environmental baseline includes the past and present impacts of all Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation in process. Indirect effects are those that are caused by the proposed action and are later in time, but still are reasonably certain to occur. Interrelated actions are those that are part of a larger action and depend on the larger action for their justification. Interdependent actions are those that have no independent utility apart from the action under consideration.
50 C.F.R. § 402.02.
The term "major construction activity” is defined in the regulations as:
a construction project (or other undertaking having similar physical impacts) which is a major Federal action significantly affecting the quality of the human environment as referred to in the National Environmental Policy Act [NEPA, 42 U.S.C. 4332(2)(C)].
50 C.F.R. § 402.02. Clearly, widening SR 520 is a major construction activity subject to the myriad requirements of NEPA, the ESA and the Clean Water Act.
14. One of the outcomes of the Suncoast Parkway litigation was a reconsultation by the Corps and DOT on the effects of the highway on two federally listed species, the wood stork and the scrub jay. The reconsultation recognized that the “action area” for a large road is a vast area, not merely the alignment itself and an arbitrary area within the right-of-way. I have annexed hereto the Suncoast Parkway consultation letters provided to the Corps by the Fish and Wildlife Service. These letters should set the standard for ESA and NEPA compliance by the Corps and DOT in the SR 520 project. A BA for the entire “action area” of the entire length of SR 520 must be prepared, in accordance with the strict meaning of the above referenced federal regulations.
15. Regulations promulgated under the National Environmental Policy Act provide that the Corps shall consider all effects, both direct and indirect. 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 the project, including the facilitation of residential and commercial development by the road.
16. Whatever happened to the wetland policy of "no net loss"? No matter how you slice it, over 42.27 acres of wetlands are going to be destroyed by this activity. Why are “mitigation credits” sufficient? Why is the mitigation proposal not detailed in the public notice?
17. The public notice provides no analysis of how the proposed dredge and fill will affect remaining adjacent wetlands, chopped up and fragmented by this proposed project, will function. What will be the effect of road runoff on these remaining wetlands? How will their ability to act as habitat be affected? Will they continue to serve other wetlands functions such as provision of water purification? Are these wetlands part of a larger mosaic of wetlands, and if so, how will the wetland system be impacted by this bisection?
18. 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:
developments like this in the form of fire, police, garbage, schools, ambulance, sewer, roads, etc., has been demonstrated to far outweigh any increased property tax revenue generated by the development.
Thank you for consideration of these comments. In the event a permit is issued, I request, pursuant to the Freedom of Information Act, a copy of any EASOF, alternatives analysis and permit.
Sincerely yours,
Lesley Blackner
cc: Haynes Johnson, EPA
Beverly Banister, EPA
David Hankla, Field Supervisor, Fish & Wildlife Service
John Hall, Corps
FEMA
Federal Highway Administration