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Subdivision Compliance Comment Letter
May 21, 2001
Colonel James G. May, District Engineer
Department of the Army
Jacksonville District Corps of Engineers
Regulatory Division
Enforcement Branch
P. O. Box 4970/400 West Bay Street
Jacksonville, FL 32232-0019 john.r.hall@saj02.usace.army.mil
Re: Freedom of Information Act Request
Glassman Development Corporation
Permit No. 199301389 (IP)
Permit Application No. 199601852 (IP-TM)
Dear Colonel James G. May:
I am writing in response to Permit No. 199301389 (IP) issued to Glassman Development Corporation on February 11, 1997, which was the subject of your Public Notice dated April 23, 2001, proposing enforcement action. I also am writing regarding a Public Notice (Permit Application No. 199601852 (IP-TM)) published by the Army Corps of Engineers (COE) late last year for the same Corporation, and any other permits pending or issued to that Corporation.
Freedom of Information Act Requests: Permit Application No. 199601852 (IP-TM)
In Permit Application No. 199601852 (IP-TM), the COE proposed to issue a permit to Glassman Development Corporation for the dredging and filling approximately 40 acres of waters of the United States (wetlands), as identified by the applicant. It is my understanding that a significant portion of the 180 acres identified by the applicant as "uplands", were in fact hydric. The 1999 U. S. Geological Survey Open-File Report 99-181 indicates that the proposed project site is within the "Kissimmee-Okeechobee-Everglades watershed boundary". In consideration of the non-compliance of Glassman Development Corporation associated with Permit No. 199301389 (IP), and pursuant to the Freedom of Information Act, I am requesting information regarding the status of Permit Application No. 199601852 (IP-TM), and actual notice of any proposed agency action on that project.
Public Notice: Permit No. 199301389 (IP), Other Projects
The initial paragraph of your Public Notice dated April 23, 2001, regarding permit violations by Glassman Development Corporation, indicated that you "propose to issue an Order assessing a Class I administrative Penalty against Glassman Development Corporation. Paragraph 2 of your Public Notice contained the following statement:
"The work authorized included the discharge of fill material over approximately 784 acres of waters of the United States (wetlands). The purpose of the project was to construct a 933-acre residential and commercial development." [emphasis added]
That same paragraph of your Public Notice indicated that the permitted project was "located in wetlands east of I-75 between Pines Boulevard and Miramar Parkway, in Sections 22, 23, 26, and 27, Township 51 South, Range 40 East, Miramar, Broward County, Florida."
Paragraph 3 of your Public Notice states that the conditions or limitations reportedly violated included:
a. "Failure to prepare and plant wetland vegetation on a 55.44-acre mitigation site within 24 months of permit issuance......As part of the Permit conditions, the permittee was required to clear the existing low-quality vegetation, re-grade the site to an elevation of + 1.5 NGVD, restore wetland hydrology, and plant the site with native wetland species within 24 months of permit issuance...." [emphasis added]
b. "Failure to submit a mitigation and monitoring plan within 6 months of issuance of the Permit. Special Condition number 2 required the permittee to submit a detailed mitigation and monitoring plan within 6 months of permit issuance. The permittee violated this condition by not submitting the required plan within the required time frame." [emphasis added]
c. "The permittee violated Special Condition number 3a of the Permit by placing fill material over 3.9 acres of wetlands within the 55.44-acre mitigation site. The site was part of the required mitigation and was recorded in a conservation easement. Monarch Towne Center, Ltd., is the owner of the 3.9-acre site that was filled and was responsible for ordering the unauthorized fill. As permittee, Glassman Development Corporation is also responsible for the unauthorized fill. On January 12, 2001, the U. S. Army Corps of Engineers (Corps) issued an Order requiring Glassman Development Corporation and Monarch Towne Center, Ltd., to remove the unauthorized fill and bring the work into compliance with the terms and conditions of the Permit." [emphasis added]
d. "Failure to submit an interim and final report after finalizing a Phase III archeological assessment. Special Condition number 4 of the Permit required the permittee to submit and further coordinate the findings of a Phase III archeological assessment with the Corps and the State Historic Preservation Officer. The permittee did not submit the required report to either of these agencies."
Numbered Paragraph 4 (AUTHORITY) of your Public Notice states, in part,
"....The responsible party, the State, or any member of the public may file comments within 30 days. If requested by the responsible party, a hearing will be held before a Presiding Officer who will submit a report and recommend a decision to me. I will issue a Final Order on the case to the responsible party....." [emphasis added]
Numbered Paragraph 5 (PENALTY PROPOSED) of your Public Notice states,
"The amount of the penalty proposed in this case is $25,000. However, this proposal is subject to revision in the interests of justice after all evidence and comments have been received and reviewed. The amount of the penalty that I am authorized to assess as a Class I penalty is $10,000 per violation and not more than $25,000 total. In a case involving multiple violators, each violator is subject to a separate, not joint, penalty." [emphasis added]
Numbered Paragraph 6 (HEARING REQUEST) of your Public Notice states,
"The responsible party has 30 days following receipt of this formal notice of Proposed Penalty to request a hearing. Written request, by the responsible party, for a hearing should be directed to me within this designated comment period and must state the specific reasons for requesting a public hearing. The request should specify, in summary form, the factual and legal issues in dispute and the specific grounds for defense. The responsible party has a right to present evidence at the hearing; however, he may not challenge the permit condition(s) or limitation(s), which is the subject matter of this order." [emphasis added]
Numbered Paragraph 7 (COMMENTS) of your Public Notice states, in part,
"During the 30-day comment period, any person may submit written comments on the Proposed Penalty Order. These comments should be sent to me within this designated comment period. Any submitted comments will be included in the administrative record which will be available for inspection during regular business hours at the Regulatory Division Office, Jacksonville District, U. S. Army Corps of Engineers....."
Numbered Paragraph 8 (PUBLIC HEARING) of your Public Notice states,
"The responsible party and all persons who file comments will be given notice of any hearing held on this case. The responsible party and all commenters will have a reasonable opportunity to be heard and to present evidence at such hearing, if a hearing is held."
Numbered Paragraph 9 (FINAL DECISION) of your Public Notice states,
"If the responsible party does not request a hearing, I may issue the Final Order on this violation on or after 30 calendar days following receipt of this formal notice by the responsible party."
Numbered Paragraph 10 (HEARING/APPEAL) of your Public Notice states,
"Any Final Order issued under these procedures shall become effective 30 calendar days following its issuance unless (1) a petition to set aside the Order and to hold a hearing is filed by any person who commented on the Proposed Order and the petition is granted, or (2) an appeal to the United States District Court is taken under 33 U. S. C. ¤1319(g)(8)."
Public Comment and Freedom of Information Act Requests: Permit No. 199301389 (IP)
1. Regarding the second paragraph of your proposed enforcement action against Glassman Development Corporation for violation of permit conditions, residential and commercial developments are not "water-dependent" activities. Your agency's Rules (40 C. F. R. 230.10(3)) specify 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. 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)).
Pursuant to the Freedom of Information Act, I am requesting documentation regarding how the COE justified issuance of a permit to Glassman Development Corporation "to construct a 933-acre residential and commercial development" "over approximately 784 acres of waters of the United States (wetlands)."
2. Avoidance and minimization of wetland impacts are defined and required in the Clean Water Act (CWA) 404(b)(1) Guidelines. Even if the referenced 933-acre residential and commercial development hypothetically is presumed to be "water-dependent", such that it might be qualified for a permit from your agency, it is difficult to understand how construction of 84% of the referenced residential and commercial development in "waters of the United States (wetlands)" could constitute "avoidance and minimization of wetland impacts".
Pursuant to the Freedom of Information Act, I am requesting documentation regarding; a) the total size of the tract of land that was owned/subject to permit applications by Glassman Development Corporation; b) justification that 84% of this residential and commercial project constructed in "waters of the United States (wetlands)" constitutes "avoidance and minimization"; and c) a copy of the complete alternatives analysis. Specifically, please provide all information regarding the evaluation of constructing the entire project on the approximate 150 acres of apparent uplands, via multi-storied facilities, and incorporated parking garages under and above the constructed units.
3. The project appears to have been constructed in wetlands that were part of the greater Everglades, a National natural resource. Construction of a residential and commercial development in almost 800 acres of Everglades wetlands would be expected to result in significant secondary, cumulative, and indirect impacts, in addition to the direct impacts of the loss of approximately 800 acres of Everglades wetlands. Consideration of all of the cumulative and indirect impacts of such actions is required by 40 C. F. R. 1508.7 and 40 C. F. R. 1508.8, respectively.
Pursuant to the Freedom of Information Act, I am requesting documentation regarding your agency's full analysis of all of the direct, indirect, secondary and cumulative impacts of the construction of the referenced "933-acre residential and commercial development" "over approximately 784 acres of waters of the United States (wetlands)", with specific emphasis on impacts to the Everglades (e.g., Everglades National Park); the coral reef ecosystems of south Florida (e.g., the Florida Keys National Marine Sanctuary); Florida Bay ecosystems; Native American lands (e.g., The Independent Traditional Seminole Nation of Florida); increased wildfires; aquifer contamination/still-births in Belle Glade.
4. Issuance of the original permit that is the subject of this enforcement action required a thorough evaluation of all of the probable impacts (including cumulative and secondary impacts) of the project (construction of a "933-acre residential and commercial development" "over approximately 784 acres of waters of the United States (wetlands)") on the public interest (33 C. F. R. 320.4). The probable impacts should have included, but not been limited to, the impacts to Native American lands; wildfires; still-births in Belle Glade; and the Everglades, Florida Bay, and coral reef ecosystems of any additional disposal of sewage effluent and groundwater withdrawals to support the development.
Pursuant to the Freedom of Information Act, I am requesting documentation regarding your agency's full analysis of the probable impacts that construction of the referenced "933-acre residential and commercial development" "over approximately 784 acres of waters of the United States (wetlands)" would have on the public interest, including: a) conservation; b) general environmental concerns; c) fish and wildlife; d) wetlands; e) historic and cultural resources; f) flood hazards; g) land use; h) water supply; i) water quality and, j) safety. Specifically, include all details regarding how this permit was determined to be "in the public interest", in view of the fact that your agency now is proposing that the federal taxpayers spend approximately $500 MILLION of tax funds just for the construction of approximately 330 deep wells in the vicinity of that project, to inject surface water into the Floridan aquifer system because available ground water is inadequate to meet current allocations by the South Florida Water Management District, without consideration of the needs of the natural resources. The $500 MILLION of tax funds is exclusive of the costs of treating the generally highly- contaminated water prior to injection.
Please also include information regarding the source and amount of potable water that is being/will be supplied to the referenced residential and commercial development at completion/full occupancy. Likewise, please also include information regarding the degree of treatment and method of disposal for the sewage that is being/will be generated by the referenced residential and commercial development at completion/full occupancy.
5. Subparagraph "a" of numbered paragraph 3 from your Public Notice proposing enforcement action suggests that the 55.44-acre mitigation site - for the loss of 784 acres of "waters of the United States (wetlands)" - also was "waters of the United States (wetlands)".
Pursuant to the Freedom of Information Act, I am requesting information confirming whether the 55.44-acre mitigation site was "waters of the United States (wetlands)", and a complete list of plant and animal species (wildlife survey) on/associated with the 784-acre and 55.44-acre tracts prior to permit issuance.
6. Also regarding subparagraph "a" of numbered paragraph 3 from your referenced Public Notice, it is unclear whether the 55.44-acre mitigation site represented the entire "wetland mitigation" for the loss of "approximately 784 acres of waters of the United States (wetlands)". Actually, the permittee's failure to "construct" 5.4 acres of mitigation wetlands (see 3.a. of the Public Notice) and the filling of 3.9 acres of "conservation easement" wetlands (see 3.c. of the Public Notice) more accurately approaches 800 acres of waters of the United States (wetlands)" lost.
Pursuant to the Freedom of Information Act, I am requesting confirmation regarding whether the 55.44-acre mitigation site represented the entire "wetland mitigation" for the loss of approximately "784 acres of waters of the United States (wetlands)". If that is the case, please provide a detailed explanation regarding how that action was in compliance with the "no net loss" of wetlands rule.
7. Subparagraph "b" of numbered paragraph 3 from your Public Notice proposing enforcement action against Glassman Development Corporation suggests that no "mitigation and monitoring plan" were submitted as part of the original permit that was issued by the COE. Certainly a "mitigation and monitoring plan" is a critical component in a permit application, particularly one issued by the COE for the loss of 784 acres of "waters of the United States (wetlands)".
Pursuant to the Freedom of Information Act, I am requesting: a) confirmation regarding whether the COE issued Permit No. 199301389 (IP) to Glassman Development Corporation without a detailed "mitigation and monitoring plan"; b) if so, the justification regarding how your agency issued a permit for such a grossly incomplete permit application; and c) why it has taken the COE approximately 4 years to initiate enforcement action for this blatant violation of permit conditions that required submittal of "a detailed mitigation and monitoring plan within 6 months of permit issuance" (i.e., 8/11/97).
8. Subparagraph "d" of numbered paragraph 3 from your Public Notice proposing enforcement action against Glassman Development Corporation infers that no "interim and final report" for the archeological assessment were submitted to the COE and the State Historic Preservation Officer prior to issuance of Permit No. 199301389 (IP). Such information would appear to be a critical component in the COE's evaluation and determination of the public interest impacts by the referenced project with respect to "historic and cultural resources."
Pursuant to the Freedom of Information Act, I am requesting: a) confirmation regarding whether the COE issued Permit No. 199301389 (IP) to Glassman Development Corporation with no "interim and final report" for the archeological assessment of the site; if so, b) the justification regarding how your agency issued a permit for an even more grossly incomplete permit application; and c) why it took the COE more than 4 years to take enforcement action regarding the absence of this essential information.
9. A residential and commercial development covering almost 1,000 acres, with approxiamately 85% of the total acres to be developed identified as "waters of the United States (wetlands)" and in proximity to environmentally sensitive federal and tribal lands and the Everglades, Florida Bay, and coral reef ecosystems most certainly warranted a full Environmental Impact Statement (EIS).
Pursuant to the Freedom of Information Act, I am requesting a copy of the EIS that was completed for this project. In the event that an EIS was not conducted, please provide a copy of the Environmental Assessment Statement of Findings (EASOF) for the referenced permit, in addition to the complete Alternatives Analysis (alternative sites and alternative site plans).
10. Numbered paragraph 5 from your Public Notice proposing enforcement action against Glassman Development Corporation is extremely confusing. For example, the Public Notice appears to indicate that the only action you are proposing is fines, and that:
a. the 3.9 acres of fill placed illegally on mitigation wetlands in the "conservation easement" will not have to removed;
b. the 5.4 acres of "mitigation wetlands" that were not constructed, will not have to be constructed; and,
c. the 50 acres of "mitigation wetlands" that were "constructed" as "compensation" for the approximately 800 acres of "waters of the United States (wetlands)" that were lost pursuant to issuance of this permit will not have to comply with any requirements of a detailed "mitigation and monitoring plan".
Pursuant to the Freedom of Information Act, I am requesting verification regarding whether the enforcement action proposed in the referenced Public Notice includes only the fines described in paragraph 5 of the Public Notice, and implies that no additional action by the permittee will be required, as indicated in 9.a., 9.b., and 9.c. above.
11. Numbered paragraph 5 from your Public Notice proposing enforcement action against Glassman Development Corporation also is confusing with regard to the fine penalties that are proposed to be imposed. For example, there is no justification regarding the basis for the determination that "a Class I penalty" was appropriate or that the proposed fines will compensate for the presumed 4 years of loss of wetlands habitat that organisms (including possible federally-listed species) endured as the result of the violation, or as a deterrent for such actions on a large scale by this and other developers. Furthermore, the Public Notice suggests that a maximum penalty of $10,000 is proposed to be imposed for each of the four violations described in subparagraphs 3.a., 3.b., 3.c., and 3.d. of your referenced Public Notice. However, numbered paragraph 5 from your Public Notice proposing enforcement action against Glassman Development Corporation also states that the maximum TOTAL fine to be imposed for all 4 violations described in the referenced Public Notice would be $25,000. That paragraph suggests an enormous number of scenarios, only three of which are described below:
Scenario A: A maximum of $10,000 would be imposed on Glassman Development Corporation for Violation 3.c. - filling 3.9 acres of waters of the United States (wetlands) that were "protected" by a "conservation easement". THIS SCENARIO REPRESENTS THE EQUIVALENT OF A MAXIMUM FINE OF $2,564.10 PER ACRE FOR FILLING "PROTECTED MITIGATION WETLANDS".
Scenario B: The "not more than $25,000 total" fine is divided equally among the 4 violations described in subparagraphs 3.a., 3.b., 3.c., and 3.d. of your referenced Public Notice. THIS SCENARIO REPRESENTS THE EQUIVALENT OF A MAXIMUM FINE OF $6,250 FOR VIOLATION 3.c., OR $1,602.56 PER ACRE FOR FILLING "PROTECTED MITIGATION WETLANDS".
Scenario C: The "not more than $25,000 total" fine is divided equally among the 3 violations described in subparagraphs 3.a., 3.b., and 3.d. of your referenced Public Notice, with no fines associated with the violation described in subparagraph 3.c. of your referenced Public Notice. THIS SCENARIO REPRESENTS THE EQUIVALENT OF A MAXIMUM FINE OF $0.00 FOR FILLING "PROTECTED MITIGATION WETLANDS".
Pursuant to the Freedom of Information Act, I am requesting the scientific basis regarding the proposed "Class I penalty" for the referenced violations , and for any "Class I penalties".
12. In consideration of the lack of clarity in the referenced Public Notice regarding your agency's actual intent with respect to enforcement for the referenced violations by Glassman Development Corporation, I am requesting that the Public Notice be republished, clearly addressing the inadequacies that I have addressed. In the event that a subsequent Public Notice is not published, clarifying these inadequacies, I am requesting that the permit held by Glassman Development Corporation be declared null and void and that the 933 acre site be restored to pre-permit conditions, including the removal of the 3.9 acres of fill placed without the authority of a permit, as described in subparagraph 3.c. of your Public Notice.
13. Pursuant to the Freedom of Information Act, I am requesting a copy of the location map for the required 55.44-acre "mitigation site" - for the loss of 784 acres of "waters of the United States (wetlands)" and a copy of the initial and the most recent COE staff reports in which those "mitigation" wetlands were evaluated, including the complete list of plant species, densities and condition of all plant species present; a list of a animal species utilizing the mitigation site; and verification of the hydroperiod fluctuations in the 55.44-acre "mitigation site".
14. Pursuant to the Freedom of Information Act, I also am requesting a copy of the actual notices that were delivered to The Independent Traditional Seminole Nation of Florida, for the original Public Notice for Glassman Development Corporation's Permit No. 199301389 (IP) and for the referenced enforcement action, since this Tribe will incur direct adverse impacts from the loss of approximately 800 acres of "waters of the United States (wetlands)", but that Tribe does not have access to the COE's standard distribution of Public Notices for proposed Agency action.
15. Pursuant to the Freedom of Information Act, I also am requesting a list of all other permit applications pending for, or permits issued to Glassman Development Corporation by the COE in Florida. Specifically, please provide: a) the Application/Permit Numbers; b) total project acres; c) acres of wetlands; d) total acres to be dredged/filled; e) total acres of wetlands to be dredged/filled; f) total acres of wetlands to be created; and g) date issued/status.
16. Pursuant to the Freedom of Information Act, I also am requesting an explanation regarding what special status you have that makes you distinct from all other employees of the taxpayers (including the President of the United States, the Governor of Florida, and both state and federal agency employees), which can be contacted readily using electronic mail.
My letter is being forwarded to John Hall, whose signature appeared on your letter. For your convenience, I am forwarding a printed copy of my electronic letter, via Federal Express overnight delivery (3281010283). It is my assumption that I will receive actual notice regarding what action the COE determines it will take regarding the referenced Public Notice. Please confirm that this is the case, indicating when the requested public documents will be ready to be forwarded, so that I can determine the most expeditious mailing address to provide due to summer travel. Please respond via this e-mail address.
Sincerely,
Sydney T. Bacchus, Ph. D.
Hydroecologist
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