Via Fax & U.S. Mail

Mr. Kevin O'Kane

Department of the Army

Panama City Regulatory Office

475 Harrison Avenue

Suit 202

Panama City, FL 32401-2731

Re: Permit Application No. 200000098(IP-KO)

St. Joe Company

Dear Mr. O'Kane,

This letter is submitted on behalf of Joe Murphy, Southeast Organizer for the Endangered Species Coalition, as comments upon the above referenced permit application. You will recall that I telephoned you about one week ago to inquire whether comments are still being accepted upon the proposed application, and you indicated that a comment would be accepted.

These comments are submitted in recognition that the permit application is incomplete and provides limited information that does not allow a comprehensive comment. Deficiencies in the public notice are noted, and it is expected that further comment will be allowed once sufficient information is provided.

1. The public notice does not provide description of the condition of the wetlands, their quality and level of function. This information must be provided to allow adequate comment. Nonetheless, the land proposed for development of a residential subdivision on Palm Point between the cities of Mexico Beach and Port St. Joe both contains and is adjacent to areas of very high ecological and natural resource significance. The site includes pristine coastal natural communities that have become increasingly rare including intact beach dune, coastal strand, coastal scrub, coastal swales and ponds. In fact, the Florida Natural Areas Inventory identified Palm Point as part of a four mile long Area of Conservation Interest, FNAI’s highest priority class of natural areas, because of the high-quality occurrences of these coastal natural communities. The St. Andrews Beach mouse, a federally listed endangered species, may occur on the site. Indigo snake, a federally listed threatened species, also is likely to occur on site. Loggerhead sea turtles also nest at or near the site. The piping plover, a federally listed threatened species has also been documented in wintering habitat near the site. State-listed species include the gopher tortoise and the Cuban snowy plover. The Cuban snowy plover is considered by experts to be the most endangered bird of the Florida coastline, and the Florida Fish and Wildlife Conservation Commission identified land at and near the site as a Strategic Habitat Conservation Area for this species, which means that the breeding population found there is considered to be essential for maintaining a viable population of Cuban snowy plovers in Florida (Cox et al. 1994). The University of Florida also identified the site as part of a large, still intact landscape of high ecological significance as part of the statewide Florida Ecological Greenways Network (Hoctor et al. 2000).

2. The site is also significant from a water and coastal resource protection perspective. It is adjacent to a designated state Aquatic Preserve. It is also within a 100-year floodplain and a coastal high velocity zone. For these reasons, it is included in the Coastal Barrier Resources System, which means that no federal subsidies including federal flood insurance can not be accessed to facilitate the development of the site. This program exists precisely to discourage development in pristine coastal areas with high risk of storm damage. The purpose is to avoid the misuse of taxpayer dollars to subsidize poorly placed development that destroys sensitive coastal habitat and then requires federal funds to rebuild after storm damage.

3. Clearly the development is proposed for a site that will maximize the destruction of rare natural communities, federal and state listed species (including potential jeopardy for the Cuban snowy plover), and sensitive coastal and aquatic resources. For these reasons, the permit application should be held to the highest standard of review. The application review should also note the context of the decision in terms of the future of coastal and other significant natural resources in the panhandle of Florida. The panhandle of Florida has recently been identified as one of a select set of highest priority biodiversity conservation areas in the United States (Stein et al. 2000). However, the applicant, The St. Joe Company, owns hundreds of thousands of acres and approximately 40 miles of undeveloped coastline in the Florida panhandle. As has been well documented in the last few years, The St. Joe Company plans to develop much of its land holdings, especially their coastline ownership. This development proposal is just the beginning of a long process of massive development in the Florida panhandle by The St. Joe Company that will likely lead to extensive loss and degradation of biological diversity and other natural resources.

4. According to the Public Notice, the applicant proposes to impact 5.14 acres of wetlands to construct a residential development. A residential development 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. Moreover, because a residential development 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). No discussion of practicable alternatives is provided in the public notice and thus the application should be denied.

5. In the 1997 federal case, Forest Properties, Inc., v. United States, 39 Fed.Ct. 56 (1997), affirmed, 177 F.3d 1360 (Fed.Cir. 1999)[1], a takings claim was brought against the United States after the Corps denied a land owner's application for dredge and fill in connection with the development of a housing project. The Court of Federal Claims rejected the takings claim, as did the Court of Appeals for the Federal Circuit. The case is relevant to the permit application at bar, because it included discussion of the Corps' disfavor of dredge and fill permits for housing projects:

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, [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).

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 and commercial developments in Florida?

6. The public notice provides no analysis is provided of any attempt to avoid wetland loss, or even attempting to minimize such loss, as required. It is presumed by law that all wetland impacts for non-water dependent activities are avoidable. Please provide such analysis.

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). What impacts will this proposed activity have upon St. Joseph's Bay, a vital waterway?

8. Has the Corps considered the secondary and cumulative impacts of the proposed activity on federally protected species such as the beach mouse, and sea turtles?

9. 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.

10. 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.

11. With respect to the proposed mitigation, the following comments are provided. Given that there is no discussion of the functions provided by the wetlands on the site, it is impossible to determine if the proposed mitigation will adequately compensate for the loss of existing wetlands.

12. How does the applicant plan to "enhance" the remaining wetlands? Why do they require enhancement? It should be noted that the diversion of stormwater runoff into wetlands does not constitute enhancement.

13. 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.

14. Why are no buffers around the preserved wetlands proposed? How can remaining wetlands be expected to survive if no buffers are provided? How will the destruction of 5.14 wetland acres impact (directly, indirectly, and cumulatively) the "enhanced" wetlands?

15. The question must be raised, whatever happened to the Corps' "no net loss" rule? No matter how you slice it, 5.14 acres are proposed to be destroyed.

16. In this light, the proposed mitigation by the applicant is unacceptable. The on-site protection of approximately 8 acres of coastal scrub and the enhancement of 15.8 acres of on-site wetlands will not mitigate the destruction of over 50 acres of sensitive coastal natural communities. It will also not mitigate potential impacts to listed species including sea turtles, St. Andrews Beach mouse, or indigo snake. More appropriate mitigation would include the proposed on-site protection, significant setbacks from the shoreline of St. Joseph Bay, and off-site mitigation of at least 50 acres of similar coastal habitat ideally within the same four-mile area between Port St. Joe and Mexico Beach. Another option that might be acceptable would be to alter the development proposal so that development was restricted to half of the site so that the other half could be protected as an intact block of coastal natural communities. In addition, the applicant should be required to analyze the impact of the proposed docks on the seagrass beds and other aquatic resources in the immediate area and the potential impact of increased boat traffic on the seagrass beds and other aquatic resources in the St. Joseph Bay Aquatic Preserve. Finally, federal and state agencies should work with The St. Joe Company in a comprehensive planning process to identify all the potential impacts of proposed future development in the panhandle to develop a comprehensive, integrated mitigation strategy that will ensure the protection of the regions ecological integrity and biological diversity while allowing sensible development that is compatible with these conservation objectives. A scaled down version of this larger process would be to look specifically at the plans The St. Joe Company has for all of the undeveloped 4 mile stretch of land between Mexico Beach and Port St. Joe to develop a comprehensive mitigation that protects significant portion (e.g., at least half) of these lands if development occurs. This would be far superior to the piecemeal approach that is exemplified by this current application.

17. The public notice provides no analysis of how the proposed dredge and fill will affect remaining wetlands. No data is provided regarding the existing hydroperiods of the natural wetlands on the proposed site, the natural hydroperiods of the wetlands (assuming these natural hydroperiods were altered, as suggested), how the natural hydroperiods were altered, or how the hydroperiods are proposed to be replicated.

18. 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? The Public Notice indicates that the remaining wetlands (which will be stressed by draining) will be entirely surrounded by development. How will the wetlands function surrounded by development? How will the "enhanced" wetlands be impacted by the proposed retaining wall? Are these wetlands part of a larger mosaic of wetlands, and if so, how will the wetland system be impacted?

19. Has FEMA been consulted on this proposed activity?

20. Is this land covered by the Coastal Barrier Resources Act of 1982, or has the applicant succeeded in obtaining an exemption? (See Gainesville Sun article dated June 5, 2000, annexed hereto.)

21. 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 is a classic case of sprawl into one the last remaining pristine beaches in the state of Florida.
The economics of this project must be evaluated, including the cost to the community of all the services to be provided, such as fire, garbage, water, police, schools, etc.
This project will increase demand for water and also degrade water quality in the area. Please evaluate.
Is the general welfare of the people of the United States improved by a project such as this?
What is the public need for this project?
What is the private need for this project, apart from the desire of the applicant to make money?
What benefit does the environment receive from this project?
What is the long-term affect of the proposed activity on wetlands in the area?
What is the potential for flooding and other negative impacts on adjacent lands?
Will this project destroy all wildlife habitat value of this land?
Are these wetlands important to the public interest?
What will this proposed activity do to water quality in the area?

Thank you for your consideration of these comments.

Sincerely yours,

Lesley Blackner

Literature Cited

Cox, J., R. Kautz, M. MacLaughlin, and T. Gilbert. 1994. Closing the gaps in Florida’s wildlife habitat conservation system: recommendations to meet minimum conservation goals for declining wildlife species and rare plant and animal communities. Florida Game and Fresh Water Fish Commission, Tallahassee Florida.

Hoctor, Thomas S., M. Carr, and P. Zwick. 2000. Identifying a linked reserve system using a regional landscape approach: the Florida ecological network. Conservation Biology 14(4):984-1000.

Stein, B. A., L. S. Kutner, and J. S. Adams, eds. 2000. Precious heritage: the status of biodiversity in the United States. Oxford University Press, Oxford, U. K.

Cc: Haynes Johnson, EPA

Beverly Banister, EPA

David Hankla, Field Supervisor, Fish & Wildlife Service

John Hall, Corps

FEMA

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