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How To Write A Comment To The Corps

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[How To Write a Comment]

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    A general outline of the basic Corps' rules follows that allows a commenter to demand that the Corps adhere to its own rules and regulations. This outline is not intended to be an exhaustive format for a comment. Be sure to add any particular knowledge or concerns you may have with a particular project. You can access the federal dredge and fill rules that were promulgated by the Corps and the EPA to protect wetlands at the following: Dredge and Fill Rules.

Florida's state dredge and fill regulations are different.  You can view them in Acrobat format here: Florida Dredge and Fill
 

POINT 1:

Determine whether the proposed activity is "water dependent."
What is "water dependent"? It means that the activity must be in water to accomplish it's basic purpose. Certain activities can only be accomplished in the water. These include:
 


The following activities do not need to be in a water body to accomplish their basic purpose. These include:
 

Why is the determination of whether a proposed activity "water dependent" the most crucial aspect of commenting on a dredge and fill project? Because under the Clean Water Act regulations the presumption is that a "practicable alternative" exists in an area that is not a "water of the United States" (i.e., wetland). Therefore, the law presumes that dredge and fill shall not be permitted for non water-dependent activities. The law further presumes that less environmentally harmful alternative sites are available to accomplish the proposed project. Specifically, the regulation, 40 C.F.R. § 230.10(3) states:

 

Where the activity associated with a discharge which is proposed for a special aquatic site …does not require access or proximity to or siting within the special aquatic site in question to fulfill its basic purpose (i.e., is not "water dependent"), practicable alternatives that do not involve special aquatic sites are presumed to be available unless clearly demonstrated otherwise. In addition, where a discharge is proposed for a special aquatic site, all practicable alternatives to the proposed discharge which do not involve a discharge into a special aquatic site are presumed to have less adverse impact on the aquatic ecosystem, unless clearly demonstrated otherwise.


 

POINT 2:

If the proposed activity is non-water dependent, has the applicant demonstrated that there is no "practicable alternative" to filling in or dredging the wetlands?

Chances are, given the sorry state of the Clean Water Act implementation, the permit applicant has provided no practicable alternatives analysis to the Corps, demonstrating that he/she can only do the proposed project in that particular place, in that particular way.

Here is an example of what the Corps told an applicant for a proposed condo project that will fill in about 15.03 acres of tidal mangrove wetlands in the South Florida's Intercoastal waters:

The Corps has determined that your project is not water dependent, and therefore, according to our regulations (40 C.F.R. 230.10(3)), "no discharge of dredge and/or fill material (into water of the United States, including wetlands), shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic environment, so long as the alternative does not have other significant adverse environmental consequences". These regulations further state that for non-water dependent project, practicable alternatives that do not involve special aquatic sites are presumed to be available. Practicable alternatives are those alternatives that are "available and capable of being done after taking into consideration cost, existing technology, and logistics in light of the overall project purposes" (40 CFR 230.10(a)(2)). You are therefore requested to provide our office with a review of available upland or upland-dominated sites, or aquatic sites that have a lower wetland function and value than the proposed site, within a 3-mile radius of the proposed project site that could accommodate your development. This analysis needs to include a thorough discussion of the availability of these sites and how they would or would not meet your project purposes. For each alternative site examined, please provide the following:

  1. Presence, quantity and quality of wetlands on that site.
  2. County/city zoning for each site.
  3. Each land parcel's availability for purchase, and determination whether the proposed cost is reasonable.
  4. The presence or absence of any federally listed plant or animal species and/or historical properties on each site.
  5. The presence or absence of high value uplands on each site.
  6. Transportation access or availability to the sites.

Your alternatives analysis needs to include consideration of any available areas that have been previously filled or have been developed and then abandoned.

A viable "practicable alternative" for many proposed projects is to completely avoid all on-site wetlands. Always make this point in your commenting.

Historically, the Florida Corps has done a poor job of rigorously enforcing the "practicable alternatives" analysis requirement (along with all the other rules) mandated by the Clean Water Act and the National Environmental Policy Act ("NEPA").

REMEMBER: If the proposed activity is non-water dependent, the legal presumption is that there is a way to do the project without destroying wetlands. Demand accountability for this legal requirement!! It is being ignored in the State of Florida!!

POINT 3:

Ask whether the applicant "avoided and minimized" wetlands' destruction.

According to the Corps, avoidance means issuing a permit "for only the least environmentally damaging alternative." (Memorandum of Agreement between EPA & Corps). In practical terms, this means leaving wetlands and other "waters of the United States" alone.

Read the Memorandum between the Corps and the EPA at the EPA's terrific wetlands' website

Example: a permit applicant wants to fill 3 acres of a 20-acre parcel. Six of the 20 acres are wetlands. The applicant wants to build a mall on the uplands and fill the 3 acres of wetlands to construct parking lots. A comment could point out that the applicant can build multi-story parking on the uplands and avoid filling in all wetlands.

POINT 4:

Endangered and/or threatened species.
 

If you are familiar with the site and have observed endangered or threatened species, or habitat for protected species note this in your comment.

Want to know what protected species are in your area? Go to the Florida Natural Inventory's website. It provides a county-by-county review of species:

If the public notice makes no mention of endangered or threatened species, ask whether a comprehensive species survey has been conducted, and if habitat for these species occurs on or near the site under permit review.

If the proposed activity is in an area that is undeveloped or near or abutting protected lands, request the Corps to consult with the U.S. Fish & Wildlife Service pursuant to the requirements of section 7 of the Endangered Species Act.

POINT 5:

Will the proposed project impact publicly owned lands?

Is the project located on or near publicly owned lands?

POINT 6:

Ask for a comprehensive analysis of how the proposed activity will "cause or contribute to significant degradation of the waters of the United States."

40 C.F.R. 230.10(c) provides that no discharge of dredged or fill material shall be permitted in a "water of the United States" if the discharge will cause a "significant degradation" of that water body. Degrading effects include:

Points to consider:

POINT 7:

Remind the Corps that all effects of the proposed action must be analyzed. These effects include direct, indirect and cumulative impacts.

What is a DIRECT IMPACT?

Direct impacts are defined by the Corps' regulation 40 C.F.R 1508.8(a) as impacts: "caused by the action and occur at the same time and place."

Examples: Direct impacts of a housing subdivision are: