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Subdivision Comment Letter
Lesley Blackner, Esquire
Blackner, Stone & Associates
123 Australian Avenue
Palm Beach, FL 33480
tel: (561)659-5754
fax: (561)659-3184
February 2, 2001
Ms. Kerry P. Iliff
Department of the Army
Jacksonville District Corps of Engineers
Tampa Regulatory Office
Tampa, FL 33686-9247
Re: Permit Application No. 199502663(IP-KI)
Lake Myrtle Development Group
Dear Ms. Iliff:
This letter is submitted on behalf of Joe Murphy, Southeast Organizer for the Endangered Species Coalition as comments upon the above referenced permit application. 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. Nevertheless, "palustrine forested and herbaceous wetlands" adjacent to a lake are very valuable wetland communities and necessary to the ecological health of the lake.
2. According to the Public Notice, the applicant proposes to dredge and fill 4.23 acres of waters of the United States and to construct a "subdivision, complete with lots, roads, utilities, and stormwater management system." Such a 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 subdivision 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.
3. 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, such as this one?
4. The public notice provides no analysis is provided of any attempt to avoid wetlands 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.
5. 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, direct, secondary and cumulative, will this enormous project, given the regular use of toxic fertilizers and weed killers in routine golf course maintenance, have upon the integrity of Lake Myrtle?
6. Because this proposed project cannot be accomplished without dredge and fill of hundreds of acres of waters of the United State, the Corps' jurisdiction extends to the entire project, wetlands and uplands, under 33 C.F.R. 230, Appendix B, section 8(a). Therefore, an environmental impact study must be prepared to evaluate the full impacts on the "human environment" as that term is defined by the National Environmental Policy Act.
7. Please explain why no information has been provided regarding wildlife surveys conducted on the property to determine the presence or absence of federally protected species. It is shocking that the public notice makes absolutely no reference to compliance with the Endangered Species Act. A full biological assessment must be prepared in coordination with the Fish and Wildlife Service.
8. 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.
9. The general reference regarding the type of wetlands on the proposed project site and a review of the USCS topographic quadrangle suggest these wetlands may be valuable foraging habitat for woodstorks, a federally protected species, as well as myriad other wading bird species. Please make this determination.
10. 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 resulting from this proposed activity.
11. With respect to the proposed mitigation, the question must be raised: whatever happened to the Corps' "no net loss" policy? This proposed activity results in a net loss of 4.23 wetland acres, no matter how you slice it.
12. 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.
13. 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, how the hydroperiods are proposed to be replicated, or how Lake Myrtle will be impacted.
14. The applicant proposes that 5.30 acres of wetlands will be created on-site. . Please note that the technical experts I consulted with have no knowledge of the successful re-establishment of wetlands. If the applicant has examples of such sites, please provide. The "mitigation" of forested wetlands abutting a lake with new wetland creation does not appear adequate.
15. Is a golf course included in this proposed activity? Sheet 4 of 8 indicates there is a golf course. Are there other segments of this project planned for the future? It is a violation of NEPA and the Clean Water Act to segment projects during permitting review.
16. The proposed use of this land as a golf course indicates that the remaining wetlands will be subjected to a continuous, regular regime of toxic biocides, including fertilizers and pesticides, in order to keep the golf course in top playing form. The biocides will wash into adjacent wetlands as well as Lake Myrtle and the marshes that abut it. How will Lake Myrtle be affected by the regular, ongoing application of biocides?
17. Has FEMA been consulted on this proposed activity? This is a very low-lying area of which nearly half are over half are jurisdictional wetlands. Will flooding of adjacent properties result from this large amount of wetland fill?
.
18. Golf courses are known for their extravagant demand for water; their dependence on heavy fertilization and their destruction of wildlife habitat. Given the undisputed fact that there is a water crisis of historic proportions in central Florida, why would the Corps permit such an activity such as a golf course, which constitutes an extravagant, throwaway use of water? How many new golf courses does central Florida need, given that the area is already chock a block full of them?
19. The impact of the golf course upon the fragmentation of wildlife habitat must be evaluated and analyzed.
20. The creation of a "storm water management system" will result in draining of the remaining wetlands, which are highly sensitive to any anthropogenic changes in the surficial aquifer. The effect of the permanent lowering of the surficial aquifer on remaining abutting and surrounding wetlands must be analyzed and evaluated.
21. The draining of the area resulting from dredge and fill will also stress and harm surrounding unbuilt uplands. This effect must be evaluated and analyzed.
22. 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. How will the wetlands function surrounded by development? They will essentially serve as stormwater retention pits. Are these wetlands part of a larger mosaic of wetlands, and if so, how will the wetland system be impacted?
23. What is the function and value of the proposed mitigation?
24. Has FEMA been consulted on this proposed activity? This is a very low-lying area of which approximately half appear to be jurisdictional wetlands. This area is in a floodplain. The probability of flooding of adjacent properties that will result from the construction of this proposed activity must be completely evaluated and analyzed.
25. 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.
Sincerely yours,
Lesley Blackner
cc: Haynes Johnson, EPA
Beverly Banister, EPA
David Hankla, Field Supervisor, Fish & Wildlife Service
John Hall, Corps
FEMA
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