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Sand Mining Comment Letter
April 6, 2001
District Engineer
Department of the Army
Jacksonville District Corps of Engineers
Tampa Regulatory Office
P. O. Box 19247
Tampa, FL 33686-9247 in care of: Joseph.R.Bacheler@saj02.usace.army.mil
Re: Denial of Permit Application No. 19964304 (IP-JB)
E. R. Jahna Industries, Inc.
Dear District Engineer,
It is my understanding that public comments are still being received and considered on the referenced permit application. Before I provide comments on the proposed sand-mining operation referenced above, I am including the following brief synopsis of my scholastic and professional background, to emphasize 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, pathology and ecology. That extensive multidisciplinary background enabled me to solve my complex doctoral research problem.
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 approximately 30 peer-reviewed papers (including contributing a book chapter on 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. However, a "no mining" scenario was imposed for Trail Ridge, in part because of adverse impacts that would occur to United States waters/wetlands in the Okefenokee Swamp if one of the primary recharge areas (Trail Ridge) was mined. Note that it was recognized in that case that adverse impacts would occur beyond the boundaries of the property to be mined.
The primary focus of my research has been the specific type of wetlands that occur on the referenced Jahna Industries, Inc. site. I have personal knowledge of the site where the referenced sand-mining project is proposed to permitted (including the United States waters/wetlands), as the result of a site inspection that I conducted over the entire property several years ago. Consequently, in addition to my relevant background and training, I am personally familiar with the site of the proposed project.
COMMENTS ON PERMIT APPLICATION NO. 19964304 (IP-JB): JAHNA SAND MINING
A. Work & Purpose:
1. This section of the public notice states that the "applicant proposes to operate a sand mine and ancillary uses related to the sand mining activities on the Jahna Ranch for the life of the mine which will include paved access roads, stormwater management system, and mining activities such as sand excavation, stockpiling of materials, and processing of materials." The Corps of Engineers (COE) regulations (40 CFR 230.10(3)) specify that a project must be water-dependent to qualify for a permit from your agency. Sand-mining is not a "water-dependent" activity. For example, sand-mining can occur in deserts, in the total absence of water. Any product that might require sand as a critical component could obtain such sand from a source such as the dessert, without the presence of waters of the United States. Clearly, the permit should be denied based on the lack of water-dependency.
2. This section further states that the applicant requests "authorization to impact 372 acres of waters of the United States consisting primarily of 103 acres of cypress wetlands, 109 acres of mixed forested wetlands 62 acres of shrub swamps, 4 acres of fresh water marshes, and the remainder......" Although that may have been what the applicant requested "authorization to impact", extensive additional areas of waters of the United States, including wetlands (that occur both on-site and off-site in the Green Swamp), and the tributaries that flow out of the Green Swamp headwaters also will suffer adverse impacts if the proposed permit application is permitted. Please refer to my comments in paragraph 3 of my introduction, above, regarding the "no mining" determination that was rendered for a similar mining activity that was based, in part, on the off-site impacts to the Okeefenokee Swamp that would result from the proposed mining activities in that case.
3. The Green Swamp is virtually identical to the more northern Okeefenokee Swamp with respect to both hydrologic and ecological characteristics. For example, those systems provide the primary water supply for navigable waters such as the Hillsborough River and the Suwannee River, respectively. Both the Green Swamp and the Okeefenokee Swamp are critical recharge areas for the same, regional, Floridan aquifer system. Both the Green Swamp and the Okeefenokee Swamp provide critical nesting and forage habitat for federally-listed species, as well as supporting the very waters of the United States that are regulated by your agency. The species composition of the wetlands comprising those waters of the United States are very similar, if not identical.
4. The Okefenokee Swamp has been determined to be hydrologically-linked (by both surface and ground water) to waters of the United States as far away as the coast of Georgia and northeast Florida (more than 75 miles). Comparable connections have been demonstrated for central and south Florida, including the Green Swamp. Consequently, the adverse impacts of the proposed Jahna sand mine could extend for a similar distance beyond the actual point of the mining.
5. Lake Louisa State Park is only a single example of the numerous sensitive public lands and waters of the United States within the potential area of adverse impact of the proposed Jahna sand mine. Lake Louisa State Park is located less than 10 miles north of the proposed Jahna sand mine.
6. The mining that was proposed to be associated with the Okeefenokee Swamp (referenced in the third paragraph of my introduction above) was "mineral" mining in sand deposits. Mineral mining in sand deposits uses much more advanced techniques than the techniques associated with sand mining, as proposed under the permit application currently being considered by the COE in the Green Swamp. The pits that are excavated as the result of mineral mining in sand deposits are "short-term" and are back-filled while the mining is taking place. However, despite the fact that the pre-existing contours are re-established in the pits that are excavated for mineral mining of sand deposits, the integrity of the zones of lower permeability are destroyed, resulting in long-term, possibly permanent adverse impacts to waters of the United States and critical nesting and forage habitat for federally-listed species.
7. The Jahna sand mine that is proposed under the referenced permit application would result in identical adverse impacts as those described in paragraph A. 6. above, in addition to adverse impacts from the excavation of permanent mine pits. Therefore, the adverse impacts from proposed Jahna sand mine would be more severe, extensive, and permanent than those that would have been associated with the Okefenokee Swamp, if the "no mining" determination had not been made.
8. The reason that the sand mining proposed in the Jahna application would result in more severe, extensive, and permanent adverse impacts than those that would have been associated with the proposed excavations in the Okefenokee Swamp is because the proposed Jahna activities not only would destroy the near-surface layers of lower permeability described above (that result in adverse impacts to navigable waters/waters of the United States), the Jahna activities also would result in permanent excavated pits. Permanent pits excavated into Florida's aquifers result in numerous adverse impacts to both water quantity (e.g. water required for navigation) and water quality (e.g., regulated under the Clean Water Act). These adverse impacts are described briefly in the following paragraphs.
9. The occurrence of depressional wetlands throughout (and adjacent to) the referenced site, is verification that the historic level of the water table (i.e., the surficial aquifer) is known to fluctuate from slightly below, to above the existing ground elevation (shown to be ~120 ft. NGVD on applicants' Figure 5). Consequently, the materials that are proposed to be mined constitute the actual structure, or "body" of the surficial aquifer. The sand deposits comprising the body of the surficial aquifer (that are proposed to be mined) are responsible for both the quantity and the quality of the water that constitutes the associated navigable waters/waters/wetlands of the United States. The Hillsborough River is an example of only one of the navigable waters that derives its water from the Green Swamp. The Hillsborough River is a primary source of drinking water for the City of Tampa. The body of the surficial aquifer proposed to be mined also is the primary source of recharge to the underlying regional Floridan aquifer system. The Floridan aquifer system serves as the primary or sole source of potable water for countless municipalities and individual citizens throughout the region. Clearly, destroying the quantity and quality of these public resources is "contrary to the public interest".
10. When the body of the surficial aquifer (the sand deposits) is dredged, that portion of the aquifer is removed permanently. Prior to dredging, the "void space" (between the sand grains) that is filled with aquifer water is approximately 20%. After the sand deposits are dredged, the "void space" (mined pits) filled with water becomes 100%. Clearly the aquifer water is diverted into the newly created pits from an extensive area surrounding the pits, unless impermeable liners are secured along all sides of the excavated pits during the mining process. There is no indication that such action is to be included in the application seeking a permit from your agency to mitigate the adverse impacts of this water diversion. The diversion of ground water from surrounding areas results in a permanent drop in the water table, a reduction of both flows and levels in associated navigable waters, and concomitant unaccounted impacts to both on-site and off-site United States waters/wetlands.
11. The volume of water that would be diverted permanently from waters of the United States, including associated wetlands, cannot be determined from the application because the applicant states in Figure 5-1 that "Elevations are Conceptual and will vary for each mine area." Although only "conceptual" cross sections of the mined pits (erroneously termed "lake" on Figure 5-1) are provided by the applicant in the Public Notice (rather than "actual" cross sections), the mined pits would extend approximately 60 feet deep, below the ground surface. This is similar to a six-story building excavated below the ground, into the aquifer. The lateral extent of the proposed sand mine cannot be determined from the information provided by the applicant in the Public Notice. However, based on the conceptual drawing of a typical pit (as shown in applicant's Figure 5-1), the width of each pit would extend more that 200 feet. Consequently, the water would be "mined" from the associated wetlands both on-site (erroneously designated as "unmined jurisdictional wetland" in applicant's Figure 5-1) and off-site, including throughout the "upland buffers" (erroneously designated as such in the applicant's Figures 5-1 and 6-4) .
12. In addition to the permanent adverse impacts described above that would result from the dredged pits if a permit was issued for the referenced application, other permanent adverse impacts will occur. The additional adverse impacts associated with the proposed dredging activities are due to the loss of water that occurs due to evaporation when ground water is converted to surface water and is exposed to wind and high temperatures.
13. As a result of the adverse impacts described above, that would result from proposed dredging associated with the proposed sand mine operation, it will be physically impossible to maintain, or even achieve any of the "SHWL" (seasonal high water level) elevations specified in the applicant's Figure 6-4.
14. In consideration of the facts described above, the applicant's requested "authorization to impact 372 acres of waters of the United States consisting primarily of 103 acres of cypress wetlands, 109 acres of mixed forested wetlands 62 acres of shrub swamps, 4 acres of fresh water marshes, and the remainder......" under the referenced permit application represents only the on-site impacts of the actual "footprint" of the mining activities. The actual acres of cypress wetlands, mixed forested wetlands, shrub swamps, freshwater marshes, navigable waters and other resources that will be subjected to adverse impacts if the proposed permit is issued by your agency would be significantly more extensive than what is indicated in the "applicant's request".
B. Mitigation:
15. Even if all other requirements had been met for issuance of a permit, no precise mitigation plan has been developed by the applicant to offset even the erroneously-calculated 372 acres of waters of the United States that the applicant asserts would be destroyed if the referenced permit is issued. The general "elements" that are proposed as "mitigation" (as described in the public notice) would result in a net loss, not only of the 372 acres of waters of the United States that the applicant asserts would be destroyed, but of all of the additional acres (on-site and off-site) that will be destroyed. Clearly that is contrary to the Public Interest.
16. The location of the so-called "protection and conservation of significant unmined wetlands and regional water resources" that would comprise an "element" of the proposed permit is not specified. However, if those wetlands and regional water resources are either on or within 75 miles of the proposed project site, they cannot possibly be "protected" or "conserved". The suggestion that 3,055 acres of such dewatered wetlands and former regional water resources would be "sold to the State Of Florida" as an "element" of mitigation is impossible to comprehend. The significant costs and liability to the general Public associated with such action already has been demonstrated. For example, a similar situation occurred many years ago at Little Gator Creek "Wildlife Environmental Area" (Little Gator Creek), in association with another mining operation that diverted aquifer water, as described below.
17. After dredging was complete at Little Gator Creek, this tract was sold to the State of Florida for $2.5 million in the mid 1980's, to establish and manage the wildlife area. Because the water table (surficial aquifer) was lowered permanently in the vicinity of the dredged pit, an 8-inch well had to be constructed to pump ground water into the pondcypress wetlands in an effort to maintain essential water levels to protect the nests and provide forage areas for the wood storks. Unfortunately the deeper aquifer water used in an attempt to re-establish the hydroperiod in the wetlands differs chemically from the water in the surficial aquifer, resulting in additional damage to the wetlands. The pondcypress trees at this rookery are dying, due to permanent lowering of the water levels and alteration of the hydroperiod caused by dredging activities approximately 1 mile from the rookery. A field reconnaissance of Little Gator Creek in 1999, revealed that pondcypress trees of various sizes were exhibiting windthrow from basal decay (butt rot) due to the damage to the aquifer from the mining operation. Some of those trees already had fallen. Some of those areas also had experienced catastrophic wildfires that had burned both the fire-resistant pondcypress and pines (common in areas that have been mined in Florida). Pondcypress trees often experience a long period of premature decline (15 to 20 years) before succumbing to premature death after anthropogenic alteration of the natural hydroperiod. Pondcypress are known to live for more than 600 years. After the death of the remaining trees that were damaged by the mining operation, the wood stork rookery and forage habitat will cease to exist. No wood storks nested in that rookery the year prior to the reconnaissance based on information from those who monitor the rookery. Widespread destruction of pondcypress wetlands, critical nesting and forage habitat for the Endangered wood stork, will occur both on and surrounding the site of the proposed application, if COE issues a permit for the referenced application.
18. Likewise, the proposed "less-than-fee-simple title in the form of a conservation easement" that is proposed to be "sold to the State of Florida" also violates the "no net loss" directives under which the COE operates. Furthermore, the (unspecified) areas that would be included under the so-called "conservation easement" will have been dewatered from the proposed permit activities. Therefore, the same losses and liabilities described for the preceding mitigation "element" (and Little Gator Creek) apply to the areas that are proposed to be placed under a "conservation easement".
19. The "elements" of the so-called "Mitigation" proposed for the referenced application indicate that the "conveyance", "description and the terms and conditions", "extent and nature of such preservation and enhancement", and other critical elements of mitigation not only have not been determined, but would be determined by "Jahna, the DEP and the State of Florida". Clearly that circumvents involvement and comment by the public, in violation of the very regulations under which the COE is required to operate.
20. Finally, the "Mitigation" section of the Public Notice document indicates that the only proposed "creation" of wetlands will be "vegetated littoral zones" in the "open water habitat in the reclaimed mine lakes" [sic]. In reality, the so-called "lakes" actually are the dredged pits described previously, and should be referenced accordingly, rather than attempting to mislead the public into thinking that these pits actually represent habitat for the wildlife that presently utilized the site. The referenced "vegetated littoral zones" that are proposed to be "created" in these pits generally become over-grown by nuisance species (e.g., cattails) and alien species due to the severe disturbance associated with the mining activities.
C. Reclamation:
21. This section of the Public Notice document indicates that the project will result in 2,830 acres of "lakes", and 66 acres of "wetlands in the zone of fluctuation". Refer to the comments in paragraph 20 above regarding the inappropriate use of the term "lake" when referring to mined pits, as well as the reference to nuisance and alien species that generally are associated with the margins of these mined pits.
D. Threatened and Endangered Species:
22. The proposed project represents a "taking" of critical potential nesting and foraging habitat for wood storks, in violation of the Endangered Species Act, and may result in a "taking" of critical habitat for other federally-listed species. However, the applicant has failed to provide sufficient information for a comprehensive determination of the full adverse impacts to threatened and endangered species.
E. Impact on Natural Resources:
23. It is impossible to comprehend how the COE could have made the statement (included under this section of the Public Notice), "Preliminary review of this application indicates that an Environmental Impact Statement will not be required." When the applicant does not identify the actual magnitude and extent of the adverse impacts that will occur from the proposed project, and does not include the necessary information for such a determination (as is the case in the referenced permit application), 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 COE's public notice.
F. Evaluation (Direct, Indirect, Cumulative and Secondary Impacts):
24. The final page of the Public Notice for the referenced application states that 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." The referenced Public Notice fails to address or even mention any of the direct, indirect, cumulative and secondary impacts other than direct impacts associated solely with the footprint of the proposed activities, suggesting that the applicant also was remiss in addressing those impacts. Examples of those impacts include (but are not limited to) those that would be associated with the proposed project, as described in all of the paragraphs above.
25. Additionally, cumulative impacts to the Green Swamp from previous projects also must be considered. Examples of those impacts would include mining that occurred in Little Gator Creek (approximately 15 miles west of the Jahna site), and Tenoroc (less than 10 miles to the southwest of the Jahna site).
26. In consideration of the above, it is impossible to image how the "probable impacts" including "cumulative impacts of the proposed activity on the public interest" can be determined for the referenced application, due to the fact that it is incomplete and no comprehensive "public interest" test has been conducted. The only logical conclusion to draw is that your agency intends to deny the proposed permit based on the lack of these essential elements.
27. Likewise, no public "benefits" appear to have been identified for the proposed permit application. Furthermore, the "reasonably foreseeable detriments" that would occur if your agency issued a permit for the proposed project appear to remain "unforeseen" (at least to your agency), since they were not addressed in the Public Notice. This conclusion also is supported by the previously-referenced statement in the Public Notice that an EIS will not be required. The "reasonably foreseeable detriments" that would occur if a permit is issued by your agency for the referenced application will include (but not be limited to) detriments to the following: conservation, economics, esthetics, general environmental concerns, wetlands, fish and wildlife values, floodplain values, land use, navigation, recreation, water supply and conservation, water quality, safety, food and fiber production, and, in general, the need and welfare of the people. Based on the information available, the proposed project clearly is contrary to public interest and should be denied.
G. Summary and Conclusions:
In conclusion, my comments were not meant to be inclusive of all of the countless inadequacies of the referenced permit application to meet the regulatory requirements for receiving a permit from your agency. Such tasks are NOT the responsibility of the general public. It is the responsibility of your agency to ensure that an application is complete prior to posting a permit application for public comment. Permit applications as grossly incomplete as the referenced application should NOT be the subject of Public Notice. Action of this nature is a waste of time for the staff of all of the associated agencies, as well as for the general public.
Since the proposed project clearly is contrary to the public interest, and in consideration of the basic criteria that the applicant apparently has failed to meet, the requested permit should be denied. Some of the failures of the referenced application to meet the basic criteria of a complete application permittable by the COE, as referenced in my letter, are provided in the nonexhaustive list summarized below.
1. failing to identify a water-dependent activity;
2. failing to provide a detailed analysis of alternatives; failing to identify/analyze all of the direct, indirect, cumulative and secondary impacts that would result if the proposed permit was issued;
3. failing to describe the quality, function and nature/character of the on-site and off-site United states waters/wetlands to which adverse impacts would occur;
4. failing to consider the impacts to navigable waters;
5. failing to provide the results of a comprehensive biological assessment as required by the Endangered Species Act;
6. failing to recognize that the critical habitat for many, if not all of the federally-listed species potentially associated with the proposed project site would be destroyed by the proposed project if permitted;
7. failing to provide a detailed and complete mitigation plan;
8. failing to provide "actual" mitigation - even IF the activities were considered to be water-dependent and permittable;
9. failing show how - through a Public Interest Review - that the proposed activities are in the Public Interest/Not Contrary to the Public Interest.
In consideration of all of the above, there is no scientific basis for the statement on the final page of the COE Public Notice, "Preliminary review of this application indicates that an Environmental Impact Statement will not be required." If the proposed permit is not denied, a detailed Environmental Impact Statement (EIS) should be initiated immediately, and is being requested pursuant to this letter. The EIS should be conducted in conjunction with a geographical and temporal series of public hearings, which also are being requested pursuant to this letter. The public hearings should be scheduled to take place at the onset, during, and at the conclusion of the EIS. The public hearings should be held at various locations (e.g., counties). At a minimum, the public hearings should be held throughout the extent of the Green Swamp, and should include Tampa, which derives it's municipal drinking water from the navigable Hillsborough River (the headwaters of which is the Green Swamp) and Lake Louisa State Park.
The purpose of the initial set of public hearings should be to determine what, if any, water-dependent activity is at issue in the proposed permit, and what, if any public benefits (interests) would occur as a result of the proposed project (since your agency apparently has been unable to make those determinations). Additionally, the public hearings should be used to facilitate the compilation of a comprehensive list of all of the countless irreversible direct, indirect, cumulative and secondary adverse impacts that will occur to United States waters/wetlands (both on-site and off-site), and to federally-listed species (e.g., wood storks, eastern indigo snake, sand skink, blue tailed mole skink, and bald eagle) and their critical habitat if a permit is issued by your agency for the proposed project.
The adverse impacts described in my letter do NOT constitute a comprehensive list of the adverse impacts that will be associated with this referenced application, if a permit is issued by your agency. However, it is NOT the public's responsibility to compile a comprehensive list of those adverse impacts. A comprehensive list of impacts should have been determined by your agency prior to consideration of action on the proposed application. Likewise, the comprehensive list of adverse impacts should have been included as part of the public notice.
Pursuant to the Freedom of Information Act, I am requesting actual notice, via electronic posting to the address below, of any agency action taken on the referenced permit application, or any related permit application if this application is withdrawn and resubmitted in the future.
Sincerely,
Sydney T. Bacchus, Ph. D.
Hydroecologist
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