Re: Louisville & Jefferson County Riverport Authority Request for Authorization under Clean Water Act Section 404 to Fill Wetland Areas In Order To Construct Industrial Development Site
Dear Mr. McKay:
These comments are submitted concerning the proposal by the Louisville and Jefferson County Riverport Authority (Riverport) to discharge approximately 110,000 cubic yards of fill material into 1.4 acres of jurisdictional emergent wetlands and 13.0 acres of jurisdictional forested wetlands, totaling 14.4 acres of jurisdictional wetlands, for the announced purpose of constructing an industrial development site. These comments are submitted in response to the solicitation of public comment in Public Notice No. 200401649. I appreciate the extension of time from January 28, 2005 until today in which to prepare and submit these comments.
After review of the governing regulations under which your agency reviews applications for placement of dredged or fill material in waters of the United States, KRC believes that the application has not satisfied the rigorous requirements of the Section 404(b)(1) guidelines. Further, KRC does not believe that the project satisfies the public interest review requirements of the Corps of Engineers. For either and both of these reasons, KRC respectfully suggests that the application be denied.
I. THE APPLICATION FAILS TO DEMONSTRATE COMPLIANCE WITH THE SECTION 404(B)(1) GUIDELINES
The Corps of Engineers regulations at 33 C.F.R. 320.4(a)(1) demand that:
For activities involving 404 discharges, a permit will be denied if the discharge that would be authorized by such permit would not comply with the Environmental Protection Agency’s 404(b)(1)guidelines.
33 C.F.R. 320.4(a)(1).
Those “guidelines,” which are actually substantive regulations adopted by the U.S. Environmental Protection Agency on December 24, 1980 and are the “substantive criteria used in evaluating discharges of dredged or fill material under Section 404 of the Clean Water Act”, 45 Federal Register 85336 (December 24, 1980), impose significant step-wise analytical and demonstrative requirements on an applicant seeking to place dredged or fill material in a jurisdictional water.
The 404(b)(1) guidelines establish a heavy burden on an applicant to demonstrate necessary for the proposed discharge, centered around the principle that there should be no discharge into a water of the United States unless it can be demonstrated that “such a discharge will not have an unacceptable adverse impact[.]” 40 C.F.R. 230.1(c).
In determining whether a discharge will have such an effect, the guidelines establish a three-tiered framework – avoidance, minimization and mitigation. If practicable alternatives exist that will satisfy the overall project purposes, no amount of minimization of the impact or mitigation will be sufficient to support issuance of a Section 404 authorization. If the substantial thresholds of avoidance and the presumption of availability of alternatives is crossed, and the project impact minimized, the mitigation must fully compensate for the impacts to the entire reach of waterbody affected, including not merely those areas directly impacted by the placement of material, but those areas adversely affected or isolated by the filling.
A. PRACTICABLE ALTERNATIVES AND PROJECT PURPOSES
The first and most rigorous threshold requirement of the Section 404(b)(1) guidelines is the mandate to prohibit the discharge of dredged or fill material:
if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.
40 C.F.R. 230.10(a).
The phrase “practicable alternatives” includes those alternatives that do not involve a discharge of dredged or fill material, as well as discharges of dredged or fill material at other locations. 40 C.F.R. 230.10(a)(1)(i), (ii). An alternative is considered practicable if "it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes. If it is otherwise a practicable alternative, an area not presently owned by the applicant that could reasonably be obtained, utilized, expanded or managed in order to fulfill the basic purpose of the proposed activity may be considered."
40 C.F.R. 230.10(a)(2).
Additionally, in evaluating the existence of practicable alternatives, a presumption is created that such alternatives exist in cases where the activity is proposed for a special aquatic site and the activity does not require access or proximity to or siting with the special aquatic site in question to fulfill its basic purpose (i.e. is not “water dependent.”) 40 C.F.R. 230.10(a)(3). Finally, as provided in that regulation, all practicable alternatives that do not involve discharges into special aquatic sites are presumed to have less adverse impact on the aquatic environment.
The intent of the requirement that no discharge be permitted if there is a practicable alternative which would have less adverse impact on the aquatic ecosystem in question, according to the preamble that accompanied issuance of the regulation, is that:
[T]he Guidelines . . . prohibit discharges where there is a practicable, less damaging alternative. . Thus, if destruction of an area of waters of the United States may reasonably be avoided, it should be avoided.
45 F. R. 85,340 (Dec. 24, l980).
In parsing the “basis purpose” or “overall project purpose” of the proposed filling activity, the Corps is guided by past Court decisions and prior determinations of the Corps respecting 404 permit applications. Invariably, a project applicant will couch a project purpose in terms that appear to compel a conclusion that practicable alternatives do not exist. Project purposes will be “bundled” so as to “create” necessity when the purposes in truth can be met in ways that do not involve disruption to aquatic ecosystems. It is clear that regardless of how the applicant packages the project purpose, the corps must independently define the project purpose and the range of practicable alternatives:
"The Corps is responsible for controlling every aspect of the 404(b)(1) analysis. While the Corps should consider the views of the applicant regarding his project's purpose and the existence (or lack of)practicable alternatives, the Corps must determine and evaluate these matters itself, with no control or direction from the applicant, and without undue deference to the applicant's wishes."
Permit Elevation, Plantation Landing Resort, Inc., (April 21, l989) at 4. (Emphasis original) (Hereafter "Plantation Landing").
The Corps has a plain, mandatory and non-delegable obligation, (in this and all of the other guidelines), to independently frame the "basic purpose" of the project and to determine the availability (or lack thereof) of less damaging practicable alternatives.
Since this application involves a proposed discharge into a special aquatic site, the presumption of availability of alternatives applies if the proposed activity is "non-water-dependent". Non water-dependent activities are those:
which do not require access or proximity to or siting within the special aquatic site to fulfill their basic purpose. An example is a fill to create a restaurant site, since restaurants do not need to be in wetlands to fulfill their basic purpose of feeding people. 45 Fed. Reg. 85,339 (December 24, l980).
In reviewing "water dependency," the Corps is required to look to the most fundamental purpose of the project, rather than to a characterization of the purpose wrapped in obligations that have been made in anticipation of the project going forward. In rejecting the "fully integrated" development proposal in Plantation Landings, the Corps made clear that the "basic purpose" doctrine is intended to look to the most fundamental characterization of the project. Thus, for example, the basic purpose of a riverfront restaurant is to feed people, 45 Fed. Reg. 85,339; and the basic purpose of a waterfront recreational housing development is shelter, Report on Application for Department of the Army Permits to Dredge and Fill at Marco Island, Collier County, Florida, 6th Ind., (April 15, l976), at pp. 9l-92. While multiple purposes are typically bundled together by an applicant in order to bolster the necessity of a project, the agency must disaggregate those “purposes” in order to determine whether, individually and together, the overall project purposes can be met through other less destructive means.
Against this regulatory background, it is apparent that the proposed filling of the 14.4 acres of wetlands in order to develop the property for industrial purposes, including the construction of a “steel conduit plant” is not an activity that is water-dependent, and that the applicant has at this time failed to demonstrate the lack of available practicable alternatives that could satisfy the overall project purpose without discharging into waters of the United States. Until such time as the applicant demonstrates that there are no other alternative locations, or configurations of property, that would satisfy the project purpose, and that the conversion of these 14 acres of wetlands in an already hydrologically constrained area is essential to the project purpose, the proposed permit must be denied.
B. ASSUMING, ARGUENDO, THAT THE ALTERNATIVES THRESHOLD CAN BE MET, THE APPLICANT MUST MINIMIZE IMPACTS AND THEN DEMONSTRATE THAT THE PROPOSED MITIGATION FULLY OFFSETS SPATIAL AND TEMPORAL LOSSES DUE TO THE IMPACTS OF THE PROPOSED PROJECT
Assuming, for the sake of argument alone, that an alternative analysis is developed and submitted that supports the conclusion that the only practicable alternative satisfying the overall project purposes is filling of this wetland area at this location, the project application must address the mitigation requirements of the Section 404(b)(1) guidelines.
Initially, the applicant must demonstrate that in the proposed development, all means have been utilized to minimize the extent of the filling. Since this area is significantly constrained in term of hydrology, the applicant should be required to demonstrate the means that have been utilized to construct the proposed facilities within the natural land forms and constraints of the area, utilizing the natural drainage systems and wetland areas for stormwater management and drainage rather than constructing artificial stormwater management systems. The requirements of 40 CFR 230.70 concerning the minimization of the impact of the discharge related to location and configuration of the discharge and site development, and the remainder of the actions identified for minimizing impacts, must be explored and the consideration of same, documented.
Once minimization has been demonstrated, mitigation must be demonstrated. In 1989, a Memorandum of Agreement Concerning the Determination of Mitigation Under the Clean Water Act Section 404(b)(1) Guidelines was entered into between the Corps of Engineers and Environmental Protection Agency, in order to articulate the policy and procedures to be used in the determination of the types and levels of mitigation necessary to comply with the section 404(b)(1) guidelines.
The three general types of mitigation identified in that memorandum are avoidance, minimization and compensatory mitigation. 54 F.R. 51320 (December 14, 1989). The determination of what level of mitigation is “appropriate” must be based on the “values and functions of the aquatic resource that will be impacted.” Id. at p. 51320. It is not to be based on the characteristics of the proposed project. Functional values must be assessed using aquatic site assessment techniques that fully consider each ecological function and value that will be lost by altering the natural aquatic community and habitat. 54 F.R. 51321.
The mitigation must evaluate all project impacts on the aquatic system, including the footprint of the area to be filled but also any related or adjacent areas whose hydrology, vegetative cover or other values may be indirectly altered or diminished.
The mitigation assessment must evaluated the full range of possible values that would be lost in the filling of the 14 acres of wetlands. The wetland areas must be assessed jointly and individually for their current hydrologic, habitat, water quality, flood control and other functions, and the loss of these established wetland areas and substitution for proposed mitigation wetland must also be weighed in terms of whether the replacement functions for the mitigation areas will be established prior to the destruction of these areas, and whether there will be temporal loss of quality of these functions. Additionally, the risk of non-performance or inadequacy of compensatory quality must be accounted for in the extent of mitigation area required and the timing and sequencing of the mitigation area development, and filling of the proposed site.
II. THE PROJECT APPLICATION MUST PROVIDE DOCUMENTATION SUFFICIENT TO DEMONSTRATE COMPLIANCE WITH THE NATIONAL ENVIRONMENTAL POLICY ACT, AND TO DEMONSTRATE CONSISTENCY WITH THE CORPS’ “PUBLIC INTEREST” TESTS
In addition to failing to satisfy the 404(b)(1) guidelines, the applicant is obligated by law to demonstrate that the proposed action complies with the standards established in the “public interest review” process that must precede any decision of the Corps of Engineers to issue a permit under Section 404 of the Clean Water Act. Additionally, the Corps is obligated to provide the documentation of compliance with the substantive and procedural requirements of the National Environmental Policy Act (NEPA).
The Corps of Engineers has developed a policy applicable to the review of all applications for a Department of the Army permit, called the “public interest review.” 33 C.F.R. 320.4(a)(1). In addition to the obligations of the agency under the National Environmental Policy Act, and those imposed under the Section 404(b)(1) guidelines, the public interest review policy instructs that:
"the decision whether to issue a permit will be based on an evaluation of the probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest. Evaluation of the probable impact which the proposed activity may have on the public interest requires a careful weighing of all those factors which become relevant in each particular case. The benefits which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments. The decision whether to authorize a proposal, and if so, the conditions under which it will be allowed to occur, are therefore determined by the outcome of this general balancing process.
* * * *
All factors which may be relevant to the proposal must be considered including the cumulative effects thereof: among those are conservation, economic, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership, and, in general, the needs and welfare of the people."
33 C.F.R. 320.4(a)(1).
While the agency is obligated to demonstrate compliance with the National Environmental Policy Act by conducting either an environmental assessment or Environmental Impact Statement (or in select cases, categorically excluding insignificant activities), the obligation to conduct a public interest review is not satisfied merely by undertaking the required analysis under the National Environmental Policy Act, but rather is an obligation distinct from both the NEPA mandate and the requirements of Section 404 of the Clean Water Act. As noted in the case of Van Abbema v. Fornell, 807 F.2d 633, 637-8 (7th Cir. 1986):
"[r]elative absence of significant environmental effects does not translate directly into overall social benefit. The Corps must follow two distinct, if parallel, guidelines in issuing a permit after a FONSI. First, Section 102(2)(E) of NEPA, 42 U.S.C. 4332(2)(E), requires all federal agencies to ‘study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.’ And second, Corps regulations require that a permit shall issue only after a general ‘public interest review’ determines that the benefits outweigh the detriments of a proposal."
Id. at 638.
The proposed project contemplates the filling of 14.4 acres of wetland to facilitate construction of the “Riverport Phase 4 industrial development that is to include a steel conduit plant.” The proposed plant will, according to emissions rates projected by the company and provided by the local air pollution control agency, add to the ambient air in the Louisville-Jefferson County area, 47.25 tons per year of particulate matter, 35.4 tons of Nitrogen Oxides, 95 tons of volatile organic compounds, 4 tons per year of methyl ethyl ketone, 2 tons of xylene, as well as measurable emissions of sulfuric acid, cadmium, lead, chromium, zinc and acetone. In-site materials to be used include chromic and nitric acids, zinc sulfate, sulfuric acid, hydrochloric acid and lubricants. The processes proposed for the facility include various processes associated with electrical steel conduit manufacture, including welding, electrolytic plating, and “hot dip” galvanizing. Wastes projected to be generated include hazardous materials such as waste chromic acid, waste oils and solvents, plating sludge and waste pickle liquor. Emissions are proposed to be controlled through the use of thermal oxidizers, scrubbers and baghouse/dust collectors.
According to information available to the author, the proposed site either abuts or is within one-mile of several residential areas totaling some 650+ families.
The Council believes that in this instance, the factors that must weigh most heavily in determining wherein lies the public interest are these, and that the applicant must be required to further inform the agency and public concerning these matters:
* The high degree of certainty of adverse effects from the project, including direct wetland loss from the construction, and the uncertainty concerning the extent of indirect effects on public health;
* The incompatibility of the proposed project with Section 404(b)(1) guidelines due to the presumptive availability of practicable alternatives that do not involve the conversion of waters of the United States;
* The possibility of spills or releases of hazardous substances, pollutants or contaminants into the environment and the location of residents within 200 yards of the proposed facility, including releases from truck accidents where hazardous materials are being transported;
* The lack of any community notification or emergency response plan for preventing releases, and responding to releases from the facility;
* The apparent incompatibility of the location of an industrial manufacturing facility using hazardous materials and generating hazardous wastes and industrial air emissions in relatively close proximity to residential neighborhoods, with the charter and deed restrictions imposed by the Louisville an Jefferson County Riverport Authority on the property in question.
On July 15, 2982, the Louisville and Jefferson County Riverport Authority adopted a “declaration of restrictions” intended to address concerns regarding the creation of a riverport and associated industrial park in an area that had a significant residential population. The intention of the Riverport Authority, according to the document (which is filed at Book 5299 Page 194 et seq. in the County Clerk’s Office) was to “make and impose upon the Real property the covenants, conditions, standards and restrictions hereinafter set forth . . . for the establishment and enforcement of site development and environmental standards for the Riverport Complex in order to benefit the Real Property and to improve and maintain the quality of the environment in areas within and adjacent to it [and to] supplement existing regulations of federal, state and local regulatory agencies[.]” Pp. 194-5.
Among the restrictive covenant conditions adopted in that Declaration of Restrictions are these:
“Purchasers and lessees of land within the Riverport Complex agree not to use or allow the use of any trade of manufacturing which, according to the standards adopted herein, is noxious or offensive or the source of annoyance or nuisance to other occupants of the Riverport Complex or adjacent residential areas including but not limited to . . . noise, or excessive emission of odors, fumes, smoke, dust, or noxious gases. No activity shall be carried on which may be or may become dangerous to public health or safety, or which may increase the fire insurance rating for adjoining or adjacent property, or for any purpose be in violation of the laws of the United States or of the Commonwealth of Kentucky.”
The restrictions continue, including sections addressing on noise performance standards and vibration mitigation, odor controls, lighting (glare), and a hazardous material spill control plan, among others.
While these requirements are, by the terms of the Declaration of Restrictions, enforceable only by the Riverport Authority, they represent applicable standards of conduct and environmental performance that, as part of the “public interest review” it is both appropriate and necessary for the applicant Riverport Authority and its proposed tenant industrial steel plant to address prior to a determination by the Corps as to whether issuance of a permit would be in the “public interest.”
Certainly, a determination of the anticipated noise, vibration, odor, emissions, and spill release characteristics of the proposed plant are material to the “public interest review” and at this point in time, since the Riverport Authority has entered into negotiations with the proposed steel plant and has begun the permitting process with the siting of that plant in mind, the agency and applicant should have addressed the compliance with the Declaration of Restrictions by this time. The Declaration of Restrictions provide applicable supplementary performance standards against which the Corps should measure the compatibility of the proposed plant with the community and the compliance of the facility with deed restrictions.
The “public interest review” requirements of 40 CFR 320.4 impose specific analytical and informational requirements on both the applicant and agency with respect to the impacts on wetlands, as well as broader consideration of the benefits which “reasonably may be expected to accrue from the proposal” and the “reasonably foreseeable detriments.” The Corps, in determining whether to issue an authorization under Section 404, must balance these principles based on a thorough assessment of the direct, indirect and cumulative impacts of this project on the human and natural environment. The existing administrative record lacks sufficient analysis of air, land and water impacts, including those analytical obligations under Section 404(b)(1) and the analyses and plans required under the Declaration of Restrictions, upon which to make such a judgment. The application should be rejected without prejudice in order to allow the applicant to submit supporting information demonstrating compliance with the 404(b) Guidelines, and in particular a demonstration of the lack of practicable alternatives, a minimization and mitigation plan, and all of the analyses necessary to support a finding that the proposed facility will meet the noise, odor, vibration, erosion and sediment control, and other applicable requirements of the Declaration of Restrictions, and further demonstrating that issuance of the permit would be consistent with the public interest, as that term is used in 40 C.F.R. 320.4.
Once these are provided, the comment period should be reopened to accept comment on the documents and in order to better inform the agency’s final decisions under NEPA< Section 404(b)(1) and 40 CFR 320.4.
Thank you in advance for your consideration of these comments. The Declaration of Restrictions, filed at Deed Book 5299, p. 194-250, is incorporated herein by reference as if fully set forth below. A hard copy of these comments and that document are being mailed this day as well.
Tom FitzGerald, Director
Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone
(502) 875-2845 fax