[Back]
[Home]
State Road 520 Comment Letter
June 13, 2001
District Engineer
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 Atten: Richard.G.White@saj02.usace.army.mil
Re: Denial of Permit Application No. 200002543 (IP-RW)
State Road 520 (from SR 50 to SR 528)
http://www.saj.usace.army.mil/permit/PermitPNs/200002543.html
Freedom of Information Act Request
Dear District Engineer,
I am a member of the public and an interested party. I am submitting comments (below) pertaining to DENIAL of the referenced permit application advertised by the Corps of Engineer's (COE) public notice dated May 15, 2001, with a deadline for public comment of June 14, 2001. I have provided a brief synopsis of my scholastic and professional background to emphasize the validity of my comments. For your convenience I also have summarized the selected examples justifying the COE's required DENIAL of the referenced proposed permit, prior to providing a more detailed statement of those examples.
The comments included in this letter are not intended to represent a comprehensive list of the basis for DENIAL of this proposed project, but are sufficient to justify the denial. If the COE is uncertain regarding the sufficiency of these impacts to justify DENIAL of the proposed project, I respectfully request the initiation of a full Environmental Impact Statement (EIS) and a public hearing.
Pursuant to the Freedom of Information Act, I am requesting actual notice, via electronic posting, 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any agency action taken on the referenced permit application, or any related permit application if this application is withdrawn and resubmitted in the future. I also am requesting a copy of the EASOF and alternatives analysis conducted for this proposed project. Please note that the information requested is not for my personal gain or profit, but solely for the purpose of benefitting the public. It is my understanding that the Freedom of Information Act, as amended (5 USC Section 552) permits the waiver of reproduction fees if "it is in the public interest because furnishing the information can be considered as primarily benefiting the public". Therefore, it is appropriate for the COE to waive any fees associated with providing the information that I have requested. Please forward all information to my attention at: P. O. Box 174, Athens, GA 30603-0174.
SYNOPSIS OF SCHOLASTIC AND PROFESSIONAL BACKGROUND
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 throughout Florida.
During and subsequent to my employment with governmental agencies in Florida, I served as an expert witness for countless enforcement and permitting cases and potential cases throughout State of Florida, in addition to overseeing numerous large "restoration" projects, and evaluating countless "mitigation" proposals. I then returned to the academic realm to 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. The proposed project is within 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. My research and publications have involved the types of wetlands that occur throughout the referenced project "corridor", as well as those that would experience significant adverse impacts throughout the extensive zone of impact beyond the actual "footprint" of the proposed "corridor". In fact, I have conducted research on wetlands throughout the Tosohatchee State Reserve (Reserve), where significant adverse impacts would occur. Consequently, my background, training, and research experience directly relate to evaluating the significant adverse impacts that would result if the proposed project was permitted by the COE.
SUMMARY OF SELECTED EXAMPLES JUSTIFYING THE COE's REQUIRED DENIAL
Numerous egregious deficiencies are associated with the public notice for the referenced project and apparently with the permit application. Those deficiencies render the application incomplete and thus incapable of being evaluated with respect to the full extent of adverse impacts that would result from the proposed project. Thus, the proposed road project must be DENIED.
The determination by the COE that "the project is not likely to adversely affect any threatened or endangered species or their related habitats" (as stated in the public notice), is without any scientific or legal basis. A determination of either "affects" or "will not affect" must be made for the proposed project, based on consultation with the US Fish and Wildlife Service (FWS). The FWS cannot initiate formal consultation under the Endangered Species Act until an application is complete. Since the application is not complete, formal consultation cannot be conducted. Therefore, the proposed road project must be DENIED for lack of information regarding adverse impacts to federally-listed species.
The proposed road project is not a "water-dependent" activitiy. Practicable alternatives that do not involve special aquatic sites are presumed to be available for activities that are not water-dependent, unless clearly demonstrated otherwise. Numerous alternatives are available that do not involve special aquatic sites. Therefore, even if the application was complete, the project would have to be DENIED.
If the project was a bona fide "water-dependent" activity, the project as proposed could not be conducted without the discharge of dredged and fill material in wetlands. Therefore, the COE jurisdiction extends to the entire project, including the extent of the corridor through publicly-owned conservation lands, and the area of impact beyond the corridor. The impacts to those lands have not been evaluated. Therefore, the proposed project should be DENIED.
It is obvious that the proposed project represents only one segment of a more extensive plan to convert this admittedly rural area into a major thoroughfare. Segmentation or piece-mealing of massive projects to provide the false appearance that impacts would be less catastrophic is a violation of federal law. Therefore, the proposed project must be DENIED and resubmitted as a single permit application that includes all segments of the proposed road project.
No EIS has been conducted to evaluate all direct, indirect, and cumulative impact of all segments of the proposed road project. In fact, no EIS has been conducted to evaluate all direct, indirect, and cumulative impacts of the single segment submitted as the referenced, proposed road project. As only one example, no consideration was given to the significant groundwater impacts that would occur if the referenced project was permitted. The proposed segment, even without impacts from additional segments, would "cause or contribute to significant degradation of the waters of the United States" if permitted and constructed. Therefore, the proposed project must be DENIED.
A comprehensive "alternatives" analysis has not been conducted, as required by law. Numerous practicable alternatives are available. Likewise, no comprehensive "minimization/avoidance" analysis has been conducted, as required by law. Therefore, the proposed project must be DENIED.
The suggested purpose of the proposed road project is to facilitate projected increases in traffic. There is no scientific or other basis to justify that the proposed road-widening project would facilitate traffic flow in that area. The facts show that projected traffic figures in past road projects in Florida were created without basis. Studies also have shown that road widening artificially stimulates use. Therefore, the suggested purpose of the proposed project is without factual basis and the proposed project must be DENIED.
The proposed road segment would bisect the proposed Tosohatchee Creek National Mitigation Bank, in addition to constituting use of the Hal Scott Regional Preserve and Park (Preserve/Park), and Reserve, as admitted in the public notice. Additionally, the project would impact the Florida Ecological Greenways Network (Greenways). Since the proposed project bisects, is adjacent to, and is integrated with publicly-owned land used for recreation and wildlife habitat, Section 4(f) requirements of 49 USC ¤ 303 are applicable. The Department of Transportation Act strictly forbids construction of a highway that uses public parks or land of historic sites. For example, the proposed road project would be both adjacent to and integrated with the wetlands of those public parks and historic sites and would constitute "use". Since alternatives are available that are both feasible and prudent to the proposed project, the proposed project violates the Department of Transportation Act and, therefore, must be DENIED.
PRELIMINARY COMMENTS ON INCOMPLETE PERMIT APPLICATION NO. 200002543 (IP-RW)
PROPOSED WIDENING OF SR 520 IN ORANGE COUNTY, FL
1. The public notice states that no State Water Quality Certification/Permit has been issued. Therefore, the published public notice was premature and the permit should be DENIED.
2. The proposed project fails to provide a detailed description and analysis of the acreage, type, nature, and function of the waters of the United States, including wetlands that are within the area that would be subjected to direct, indirect, and cumulative impacts of the proposed project, if permitted. The impact area far exceeds the footprint of the proposed road-widening corridor. The impact area includes all segments of road that are proposed to be widened to increase access for traffic, not the single segment submitted in the referenced permit application. The impact area also includes all areas that will experience groundwater impacts due to excavated stormwater ponds and pits (for construction related to the proposed widening).
3. Numerous excavated pits presently occur within the Reserve, due to the construction of the Beeline Expressway. These pits have resulted in adverse impacts to both wetlands and uplands on the Reserve. The referenced segment proposes to excavate 28 "retention" areas. The number and location of "retention" areas proposed for excavation for the additional segments of the road-widening project are not identified. Likewise, the number, location, and acreage of the pits to be excavated for this and remaining segments of the proposed project have not been identified. The additional excavation of stormwater ponds and pits associated with the referenced proposed roadway project would result in significant adverse impacts (direct, indirect, and cumulative) to the Reserve, the Preserve/Park, the Greenways, and unidentified lands associated with the other segments and excavation sites. The magnitude of those impacts cannot be evaluated due to the incomplete nature of the referenced application.
4. The proposed roadbed for this segment is proposed to be elevated, according to the public notice. The condition of the roadbeds of the remaining segments are unknown. Elevated roadbeds will disrupt the sheetflow of water that occurs in that area during the rainy season. That disruption of surfacewater flow will result in additional adverse impacts to an area far greater that the footprint of the proposed roadway corridor, including but not limited to the Reserve, Preserve/Park, Greenways, and other unknown public and private lands. Adverse impacts associated with those proposed activities will include degradation of surface and groundwater quality.
5. The public notice makes no reference to the "Biological Assessment" (BA) that is required to be conducted by a federal agency conducting "federal actions that are 'major construction activities'..." (Section 7 of ESA, 16 USC ¤ 1536(c). It should be blatantly obvious that this proposed segment and the total of all segments constitutes 'major construction activities'.
6. The determination by the COE that "the project is not likely to adversely affect any threatened or endangered species or their related habitats" (as stated in the public notice), is without any scientific or legal basis. A determination of either "affects" or "will not affect" must be made for the proposed project, based on consultation with the US Fish and Wildlife Service (FWS). The FWS cannot initiate formal consultation under the Endangered Species Act until an application is complete. Since the application is grossly incomplete, formal consultation cannot be conducted. Therefore, the proposed road project must be DENIED for lack of information regarding adverse impacts to federally-listed species.
7. The proposed road project is not a "water-dependent" activity. The discharge of dredged and fill material is not permitted for an activity that is not water-dependent unless there is no practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem. Since "road-widening" is not water-dependent, the presumption is that practicable alternatives are available (40 CFR 230.10(3)). The public notice provides no information describing the extensive "practicable alternatives analysis" that was performed to rebut the presumption that such alternatives are available. The absence of that information suggests that no such analysis was conducted. If no such analysis was conducted the requested permit should have been denied. If the analysis was conducted, the results of the analysis should have been included in the Public Notice, since the information contained in such an analysis is critical to the public comments that would be submitted for such a proposed project. Consequently, the public notice is deficient and should be re-advertised, when the application is complete, and includes the required information pertaining to the extensive "alternatives analysis". Alternatively, the proposed project should be DENIED.
8. Numerous practicable alternatives are available that do not involve special aquatic sites. Some of the numerous alternatives that exist include providing ground-based mass transit transportation; creating Park and Ride locations; and the use of air-based mass transit such as sky-cars. Sky cars were invented specifically to eliminate the massive adverse impacts associated with projects such as the one proposed in the referenced permit application. Sky cars have been tested and will be in wide-spread use within the next 10 years. Therefore, even if the referenced application was complete, the project would have to be DENIED, based on failure to consider practicable alternatives.
9. The "Work & Purpose" Section of the referenced public notice indicates that the proposed project is to facilitate projected traffic increases in 20 years (2020). Sky cars would render the proposed project obsolete in less than 10 years. Therefore, the proposed project would have to be DENIED.
10. The "Work & Purpose" Section of the referenced public notice suggests that the proposed project was based on "projected traffic figures", but does not provide information regarding the source of those "projected traffic figures". What is the source of those "projected traffic figures", including the firm that generated those figures, and what was the factual basis that generated those figure? Projected traffic figures for at least two major highway projects in Florida admittedly were generated without any factual basis. Lack of factual basis for the figures provided, or figures generated by the firm producing figures without a factual basis in other projects should be sufficient grounds for denying the proposed project.
11. In addition to the lack of information regarding the basis for the "projected traffic figures", the proposed public notice fails to provide substantiation for the suggested purpose of the proposed road project - to facilitate projected increases in traffic. There is no scientific or other basis to justify that the proposed road-widening project would facilitate traffic flow in that area. Transportation studies have shown that road widening artificially stimulates additional use (for example, refer to: http://mobility.tamu.edu/2001/study/short_report.stm). Therefore, the suggested purpose of the proposed project is without factual basis and the proposed project should be DENIED.
12. If the project was a bona fide "water-dependent" activity, the project as proposed could not be conducted without the discharge of dredged and fill material in wetlands. Therefore, the COE jurisdiction extends to the entire project, including the extent of the corridor through publicly-owned conservation lands. The uplands and wetlands of the Reserve have been the focus of an aggressive "restoration" effort, involving a considerable amount of federal and state money. The impacts of the proposed project to those lands and the restoration efforts have not been evaluated. Likewise, the impacts to wildlife populations, such as the Black Bear population on the Reserve have not been evaluated. It is known that Black Bears move extensively within over large areas and that high-use roads, such as that proposed in the referenced application, result in countless deaths of Black Bears. Therefore, the proposed project should be DENIED.
13. It is obvious that the proposed project represents only one segment of a more extensive plan to convert this admittedly rural area into a major thoroughfare of congested traffic. Segmentation or piece-mealing of massive projects to provide the false appearance that impacts would be less catastrophic is a violation of federal law. Therefore, the proposed project must be DENIED and resubmitted as a single permit application that includes all segments of the proposed road project.
14. Adverse impacts from the proposed projects, in addition to those referenced above, would include significant noise and air pollution, in addition to the destruction of the esthetics of the admittedly rural nature of the proposed project area.
15. No EIS has been conducted to evaluate all direct, indirect, and cumulative impact of all segments of the proposed road project. In fact, no EIS has been conducted to evaluate all direct, indirect, and cumulative impacts of the single segment submitted as the referenced, proposed road project. As only one example, no consideration was given to the significant groundwater impacts that would occur if the referenced project was permitted. The proposed segment, even without impacts from additional segments, would "cause or contribute to significant degradation of the waters of the United States" if permitted and constructed. Therefore, the proposed project must be DENIED.
16. A comprehensive "alternatives" analysis has not been conducted, as required by law. Numerous practicable alternatives are available, such as those that were described above. Likewise, no comprehensive "minimization/avoidance" analysis has been conducted, as required by law. Therefore, the proposed project must be DENIED.
17. The comprehensive "alternatives" analysis and comprehensive "minimization/avoidance" analysis must be completed, prior to consideration of mitigation for wetlands impacts. The "Work & Purpose" Section of the referenced public notice states:
"As mitigation for the proposed wetland impacts, the applicant proposes to transfer credits from the Florida Department of Transportation's Tosohatchee Mitigation Bank 199505992 (IP-ME)".
Is that "Mitigation Bank" the same "Mitigation Bank" that the proposed road segment would bisect? Please be advised that the General Accounting Office (GAO) of the United States has determined that the COE lacks data on the success or failure of required mitigation efforts and has determined that ecological success criteria must be developed. Therefore, in the absence of such success criteria, valid mitigation for wetlands lost cannot be expected and the referenced application has no valid mitigation plan. The proposed project violates the federal "no net loss" policy. The GOA report may be viewed at http://www.eswr.com/goamitigationrpt.pdf.
18. The proposed road segment would bisect the proposed Tosohatchee Creek National Mitigation Bank, in addition to constituting use of the Preserve/Park, and Reserve, as admitted in the public notice. Additionally, the project would result in extensive adverse impacts to the Greenways. Since the proposed project bisects, is adjacent to, and is integrated with publicly-owned land used for recreation and wildlife habitat, Section 4(f) requirements of 49 USC ¤ 303 are applicable. The Department of Transportation Act strictly forbids construction of a highway that uses public parks or land of historic sites. For example, the proposed road project would be both adjacent to and integrated with the wetlands of those public parks and historic sites and would constitute "use". Since alternatives are available that are both feasible and prudent to the proposed project, the proposed project violates the Department of Transportation Act and, therefore, must be DENIED.
19. The proposed project may represent a "taking" of critical habitat for various federally-listed species, 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.
20. No reference is made to the required Public Interest review (33 CFR 320.4). 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. 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.
CONCLUSIONS
Based on information in the referenced public notice, the proposed project clearly is contrary to the public interest, and lacks the basic criteria necessary to determine the full adverse impacts of individual and collective segments of the proposed project. 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 all 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 impacts to critical habitat for federally-listed species may constitute a taking if the proposed project was permitted;
7. failing to provide a detailed, complete, and valid mitigation plan;
8. failing to provide "actual" mitigation - even IF the activities were considered to be water-dependent and permittable; and,
9. failing show how - through a Public Interest Review - that the proposed activities are in the Public Interest/Not Contrary to the Public Interest.
As indicated previously, the adverse impacts described in this 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. Public hearings and an EIS are required for a comprehensive determination of the adverse impacts associated with all related segments of the proposed roadway widening.
Sincerely,
Sydney T. Bacchus, Ph. D.
Hydroecologist
[Back]
[Home]