The applicant(s) propose to discharge some 110,000 cubic yards of fill material obtained from on and off-site sources into 18,63 acres of forested wetlands, 1.79 acres of emergent wetlands, and .64 acres of scrub/shrub wetlands, and to additionally fill 200 linear feet of intermittent and 300 feet of ephemeral stream channel to support the “Renaissance Zone South Business Park – Phase I, which would include a warehouse, distribution and commercial development on a 330 acre site.
A mitigation plan submitted by the applicant(s) proposes a 3:1 replacement ratio for 21.06 acres of the 21.87 acres to be lost to Phase I of the project, or 63.18 acres of compensation (after applicant completely discounts the necessity to replace 200 feet of lost intermittent stream due to “poor quality”). To “compensate,” applicant proposes to include provisions for wetland mitigation for Phase I and to create “credits” for “future impacts associated with development of the remaining phases of the Renaissance Zone South Business Park which encompasses 790 acres.” These provisions include 13.4 acres of on-site wetland preservation, for which applicant seeks a 10:1 ratio, on site restoration of forested wetlands of 4 acres at 1:1 ratio, off-site creation of 10 acres at a 1:1 ratio, and offsite restoration of 100 acres forested wetlands for which applicant seeks to use a 1:1 ratio, for 127.4 acres or “115.3 credits of mitigation” for which 63.18 would be pledged to this project.
Applicant proposes no compensation for the 200 feet of intermittent stream lost, and a stormwater management system for the 300 feet of ephemeral stream lost.
For the reasons below, KRC does not believe that at this time, applicant has satisfied the substantial burden of demonstrating that the 404(b)(1) guidelines have been met, or that the proposal to eliminate wetland and stream resources in the project area is in “the public interest.” For the reasons stated below, KRC respectfully requests that a full Environmental Impact Statement be developed to evaluate the full range of alternatives that would satisfy the essential project alternatives without eliminating wetland resources and 500 feet of stream. The scope of the environmental documentation must encompass the full range of effects, direct and indirect, of the conversion of the wetland area and the development of the immediate and adjoining properties that is to be facilitated by the destruction of the wetlands, since the applicant claims them to be unavoidable impacts so that they fall squarely within the regulatory ambit and control of your agency.
I. The 404(b)(1) Guidelines Require That The Requested Authorization Be Denied At This Time
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 F.R. 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 intentionally place 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 nor proposed compensatory mitigation will be sufficient to support issuance of a Section 404 authorization. If the substantial hurdles of avoidance and the presumption of availability of alternatives are crossed, and the project impacts are minimized, then (and only then) mitigation can be considered and must fully compensate for the impacts to the entire reach of waterbody affected. Included in the mitigation requirement are those areas directly impacted by the placement of material and those areas adversely affected or isolated by the filling.
The first and most rigorous threshold requirement of the Section 404(b)(1) guidelines is the prohibition against any 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 alternative” 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).
The Corps looks to the time of market entry to determine the availability of alternatives, and the fact that a change in approval of a local land use plan or zoning classification would be required to effectuate a less-damaging alternative does not make it impracticable. Bersani v. Robichaud, 850 F.2d 36, 38 (2d Cir. 1988).
Additionally, in evaluating the existence of practicable alternatives, a presumption is created that such alternatives do 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 that 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, 1980).
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 F.R. 85,339 (December 24, 1980).
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 F.R. 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 clear that the purpose of the proposed filling of the 21.87 acres of jurisdictional waters, which is to develop a site for the relocation of the UPS Ashbottom Hub and expansion of another UPS facility, as well as some undefined “commercial development and required infrastructure” is not water-dependent; and in fact, is water-aversive. The burden is on the applicant to clearly demonstrate the lack of available practicable alternatives at the time of market entry that could satisfy the overall project purpose without discharging into waters of the United States, and in doing so the applicant must demonstrate that no practicable alternatives, including alternative locations, and alternative site configurations, including relocation of structures and facilities or scaling-down of the project to minimize impacts, is reasonably possible.
Given the lack of water dependency in any of these overall project purposes, it is presumed by the Corps regulations that practicable alternatives exist which will avoid the adverse impacts completely. For the wetlands are considered “special aquatic sites” and the activity is not “water dependent,” so that “practicable alternatives that do not involve special aquatic sites are presumed to be available, unless clearly demonstrated otherwise,” and are presumed to have less adverse impact on the aquatic ecosystem, unless clearly demonstrated otherwise. Id. at § 230.10(a)(3). “Practicability” requires consideration of whether the alternative would have less adverse impact on the aquatic ecosystem so long as it does not have significant adverse environmental consequences. That an alternative may not be as lucrative financially does not make it impracticable.
The applicant must explain and clearly demonstrate the impracticability of simply avoiding the impacts partially or entirely by:
(1) scaling down the scope or size of the development in order to avoid or lessen destruction of the wetlands in the first instance, including tiering the development and removing some or all as-yet undefined commercial development;
(2) reconfiguring the site and location of facilities in order to preserve the existing wetlands and streams rather than filling them and attempting to create new ones;
(3) utilizing other available commercial properties in the area for location of the facility or undefined commercial development.
The applicant’s August 2006 Report provides some explanation for why the proposed relocation of the Ashbottom Hub this general area is desirable, and similarly for the expansion of the existing UPS facility (although it is not explained why the entire Supply Chain Solutions facility needs to be at one contiguous location), yet provides no market study and no justification whatsoever for the necessity of 50 additional acres of disturbance along the north and northeast of the project for 20 commercial outlots “to support the proposed warehouse / industrial expansion.” It is elsewhere suggested by the applicant that 300-500 jobs will be created by these outlots, yet there is no indication of what will be located at these proposed outlots.
The area in which the Renaissance Zone is to be located is already served by ample commercial development, including the nearby Preston Highway corridor and the Jefferson Mall. The applicant has acknowledged that it has conducted no market survey to indicate whether the proposed commercial development is necessary. While the commercial developments are claimed to be intended to serve the on-site workforce, their location on the Outer Loop is stated to be necessary for “visibility.” In sum, this component of the project will further exacerbate the sprawl begun by the approval by the Metro Council of the proposed ShadowWood Mall, and unless demonstrated to be essential to the overall project viability should be rejected to the extent that it affects any waters of the United States.
Until avoidance has been clearly demonstrated to be impracticable through exhaustion of practicable alternatives, further analysis under the Section 404(b)(1) guidelines is inappropriate and further review under the general “public interest” review process is unnecessary. The applicant should provide documentation that all reasonable alternatives have been explored that would avoid or would minimize adverse effects on these special aquatic sites.
On submittal of additional information addressing these points, KRC would request reopening of the comment period.
II. The Scope Of NEPA Review Must Include Both The Impacts Associated With The First Phase Of Development And The Impacts On The Natural and Built Environment Of Redevelopment of The Adjoining Future Phases
The Public Notice recognizes that National Environmental Policy Act applies to the Corps’ decision whether to authorize the destruction of these jurisdictional waters, and that NEPA requires the preparation of environmental documentation (in the form of either an Environmental Assessment or Environmental Impact Statement) evaluating the proposed action, the effects of that action, and reasonable alternatives to the proposed action including no action.
The scope of alternatives evaluated under NEPA may be broader than those evaluated under the “avoidance” threshold of the 404 guidelines. With respect to actions subject to NEPA, the Section 404(b)(1) Guidelines specifically state:
[W]here the Corps of Engineers is the permitting agency, the analysis of alternatives required for NEPA environmental documents . . . will in most cases provide the information for the evaluation of alternatives under these Guidelines. On occasion, these NEPA documents may address a broader range of alternatives than required to be considered under [the Section 404(b)(1) Guidelines] or may not have considered the alternatives in sufficient detail to respond to the requirements of these Guidelines. In the latter case, it may be necessary to supplement these NEPA documents with this additional information.
40 C.F.R. § 230.10(1)(4).
While NEPA does not require the selection of a particular alternative or the least damaging environmental option, the Section 404(b)(1) Guidelines do impose a substantive requirement to choose the practicable alternative with the least adverse impact on the aquatic ecosystem. See Carmel-by-the-Sea v. U.S. Dept. of Transp., 123 F.3d 1142, 1152 (9th Cir. 1997)
In this instance, the scope of the of the NEPA evaluation of the proposal must include at a minimum the entire 790-acre Renaissance Zone South project site on the quality of the human environment.
The extent of federal control over the development is sufficient to turn these private redevelopment actions into “federal action” for purposes of NEPA compliance. Unlike Save the Bay v. U.S. Army Corps of Engineers, 610 F.2d 322 (5th Cir. 1980) the COE approval of the wetland, stream and open waters destruction are claimed by the applicant to be unavoidable and essential to facilitate redevelopment of the property, so that the scope of the environmental analysis should encompass the entire project. Additionally, since the applicant is proposing mitigation in advance for the remainder of the 790-acre site, the entire site and all impacts must be considered.
Alternatively, even if the scope of the “project” is defined as the more discrete direct footprint of the wetland, stream and water loss, the effects of induced growth on traffic for nearby neighborhoods to the east and west of the proposed project area must be considered as indirect effects, since it is apparent that the effects of this destruction of waters and wetlands are integrally tied to a larger, foreseeable impact on the natural and built environment.
Whether viewed as a question of the “scope” of the project (i.e. the “project, for purposes of 404, NEPA and public interest review encompasses the footprint of the project and foreseeable impacts in terms of traffic on major and minor roads, air quality, water quality, noise, light pollution) or viewed as a more discrete “project,” NEPA requires an assessment of the full range of effects—direct, indirect and cumulative—of the proposed action on the human environment. That assessment includes effects on a wide range of resources, including air, water, cultural resources, animal and plant species, human communities, etc. “Effects” include “direct effects, which are caused by the action and occur at the same time and place,” and “indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems. Effects and impacts as used in these regulations are synonymous. Effects includes ecological . . . aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative.”
40 C.F.R. § 1508.8 (emphasis added).
Cumulative effects include incremental impacts from past, present and reasonably foreseeable actions regardless of what agency or other person takes such actions. 40 C.F.R. § 1508.7 (emphasis added).
The NEPA analysis cannot be limited to cumulative aquatic impacts, even though the Section 404(b)(1) Guidelines focus slightly more narrowly on impacts to the “aquatic ecosystem.” See, e.g., Wyoming Outdoor Council v. U.S. Army Corps of Engineers, 351 F. Supp. 2d 1232, 1243 (D. Wyo. 2005) (Corps’ failure to assess cumulative impacts of proposed general permit on environmental resources other than wetlands was arbitrary and capricious under NEPA). The “public interest review” also requires a broader scope of review concerning the potential effects of the Corps’ permitting decisions than merely aquatic impacts. 33 C.F.R. § 320.4(a).
III. Assuming That The Applicant(s) Satisfy The Burdens Of Avoidance And Demonstrate The Lack Of Practicable Alternatives, The Applicants Must Minimize Impacts And Justify The Proposed Compensatory Mitigation As Being Adequate
Among the issues that must be independently evaluated by the Corps under NEPA, 404(b)(1) and the “public interest review,” are these:
1. The anticipated direct effects of the proposal, including loss of open space, conversion of streams, open water bodies and jurisdictional wetlands to commercial properties, and the effects of additional noise and light pollution, and additional traffic on the Outer Loop and on neighborhoods to the west and east of the project site.
2. How will the development on flood frequency and flood heights and site runoff, and is the proposed flood mitigation adequate in the context of the most flood-prone watershed in the county.
The Pond Creek Basin is the most flood-prone area in the county, and the properties in question are constrained hydrologically. The proposed 47-acre lake in the northeast portion of the site is intended to meet MSD requirements for 460-acre feet of floodplain compensation (and thus cannot be used as “compensation” for lost waters of the United States), yet absent the development of flood hydrographs plotting single and multiple-peak storm events through the Southern Ditch system and on this property, it is impossible to determine whether the proposed volume is adequate. A study routing various storm events through the proposed lake is needed in order to properly address stormwater management, since a simple volumetric approach of digging or enlarging a hole to store floodwater may not be effective in mitigating floodplain impacts from the conversion and development of these properties.
Additionally, the loss of the wetland and potential wetland development area must be assessed. The 2003 Pilot Program Preliminary Planning document for the entire Renaissance Zone identified the Southern Area as being suitable for industrial uses related to the airport, UPS and Ford, and identified the north and northeast area of the proposed property as having significant woodland and wetland areas. The proposal to include commercial uses along the Outer Loop adjacent to the existing MSD wetland mitigation area, north and east of the proposed “compensation lake” result in unnecessary and unjustified conversion of wetlands for purposes that were not part of the project plan, and result in loss of wetlands to the immediate area that are proposed in no small part to be compensated for out-of-area.
3. The applicant should be required, prior to being permitted to utilize wetland restoration in Nelson County or any mitigation area outside of the immediate vicinity of the Pond Creek Watershed, to justify why it has not explored the potential acquisition of property on the northeast quadrant of the I-65 – Outer Loop intersection for wetland /flood mitigation. The Pond Creek Task Force Report (1997), commissioned to address potential solutions to the chronic and devastating flooding of the Pond Creek basin, noted with respect to the property in question, that it was ideal for creation of a flood control wetland:
Are there any other areas in the watershed ideal for wetland development?
The Evangel Church has an ideal location and owns property that is suitable for flood control and wetland development. The Church currently owns adjacent lands, including a forested wetland and prior converted fields that are being consider[ed] for development purposes. Nine acres are currently used for runoff mitigation.
The church could benefit by selling conservation easements and wetland banking credits for the detention basin, prior converted wetlands, and existing wetlands in their ownership. Under these circumstances they would then retain ownership of the land and derive an income flow that could be devoted to other church development purposes. To maximize the wetlands values and marketable benefits, some of the site would need to be re-graded and filled with hydric soil. The drainage could also be re-designed to permit water retained in the wetlands and detention basin to drain naturally.
Evangel Church owns property that contains a high quality wetland, prior converted wetland, and a retention basin. The church appears to have development interests designed to strengthen its economic base. Working with the church to identify and then to assist it to achieve its goals and at the same time preserve opportunities to preserve wetlands and mitigate wetland impacts, as well as contribute to flood control is recommended.
Pond Creek Task Force Report, p. 24.
The property was available for sale (and portions of it remain so) during the development of the Renaissance Zone project, and consideration of those properties for wetland mitigation should be required prior to allowing off-site mitigation out-of-county that serves no beneficial purpose for habitat, water quality or flood mitigation for the affected area.
4. The applicant must demonstrate that the proposed commercial developments are necessary for the viability of the Renaissance Zone Project, and that the proposed locations are essential. The proposed commercial development across the north face of the MSD property (See Site Plan Figure 3) both eliminates existing wetlands and also eliminates the natural use of that property as mitigation wetland, since the southern portion of that same tract is already pledged as wetland mitigation. Since the proposed commercial properties are intended to serve the on-site workforce, there is no reason why they cannot located in the project interior and away from the existing wetland areas to the east of the proposed Compensation Lake and the north of the MSD wetland area.
5. The ratio of wetland compensation should be adjusted to account for the highly constrained flood-prone nature of the Pond Creek watershed, which the Corps has previously acknowledged by increasing the compensation thresholds for both individual and nationwide permits. The proposal to create wetland areas where there is currently no or disturbed hydric soils, should be heavily discounted to account for uncertainty, and no credit should be given for preservation of areas already preserved as mitigation. The substantial flood storage deficit in this watershed demands that proposals to eliminate wetland areas and streams draining the area, and to lessen available permeable areas, be offset by creation of additional storage beyond the minimum typically required.
These, among other specific issues, deserve independent and thorough environmental analysis consistent with NEPA, the 404(b)(1) Guidelines and the “Public Interest” review criteria. 33 C.F.R. 320.4(a)(1).
For these reasons, KRC respectfully requests that the application be denied at this time without prejudice, for failure to adequately demonstrate the inability to avoid entirely or further minimize adverse effects on the jurisdictional waters by project relocation, redesign or downsizing. As part of that demonstration, KRC requests that the Corps require development of a full Environmental Impact Statement and a mitigation plan that will provide full floodplain, stream and wetland mitigation within the immediate vicinity in the Pond Creek watershed. KRC requests further that public comment be provided on the environmental documentation under NEPA and on any material resubmittals by the applicant.
Tom FitzGerald, Director
Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone
(502) 875-2845 fax
cc: R.W.Griffith, Esq., Stites & Harbison
Fred Joseph, Esq. Stites & Harbison