KRC Asks Corps to Deny Permit to Fill Wetlands for Shopping Mall

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November 17, 2005

U.S. Army Corps of Engineers
Louisville District
ATTN: Ms. Pam Loeffler,
Post Office Box 59
Louisville, Kentucky 40201-0059

Re: Public Notice 200500917

Dear Ms. Loeffler:

On behalf of the Kentucky Resources Council, Inc., its members in Jefferson County, and on behalf of the Okolona Area Keepers and individuals whom the Council has represented in matters concerning the proposed Shadow Wood Town Plaza shopping center, I am submitting these comments in opposition to the proposal to fill 2.1 acres of jurisdictional wetlands in order to provide for a shopping center and access road to the adjacent Evangel Church property.

As noted, this project was previously authorized under DA Permit No. 199801816; however that authorization expired on December 31, 2004 prior to commencement of construction. The current project proposal is not the same project as previously approved, and has been modified to accommodate a new access road and outlot layout. As such, the project applicant must demonstrate anew compliance with the Section 404(b)(1) guidelines and the public interest review criteria, and your agency must satisfy the environmental documentation requirements of the National Environmental Policy Act prior to a decision on whether and under what conditions to approve the filling of jurisdictional wetlands.

For the reasons stated below, the proposal does not appear to comply with the 404(b)(1) guidelines nor would the issuance of the requested authorization appear to be in the public interest. Finally, compliance with NEPA has not been achieved to date, and 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 will be facilitated by the destruction of the wetlands.

I. The 404(b)(1) Guidelines Require That The Requested Authorization Be Denied

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 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 nor proposed compensatory 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 are crossed, and the project impact minimized, then 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. 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 it 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 apparent that the purpose of the proposed filling of the 2.1 acres of jurisdictional wetlands is to develop a shopping mall and apartments, which are activities that are not water-dependent. 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.

In this instance, the project purpose is the development of a shopping center; an activity that is not only not water dependent but is in fact water-aversive. More specifically, the areas in which the jurisdictional wetlands exist are proposed to be filled to provide additional parking spaces, portions of two buildings, and a road whose acknowledged purpose is in no small part to provide an access route for the adjoining church property directly to the Outer Loop. 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 two wetland areas are located at the perimeter of the proposed shopping mall property. The applicant must explain and clearly demonstrate the impracticability of simply avoiding the impacts entirely by:

(1) scaling down the size of the development in order to avoid destruction of the wetlands in the first instance;

(2) reconfiguring the site in order to preserve the existing wetlands rather than to filling them and attempting to create new ones;

(3) utilizing other available commercial properties in the Jefferson Mall area, and rebuilding the existing Wal-Mart in place rather than abandoning it for this new location.

Until avoidance has been clearly demonstrated to be impracticable, 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 adverse effects on these special aquatic sites.

II. The Scope Of NEPA Review Must Include Both The Impacts Associated With The Proposed Mall And Housing Development And The Impacts On The Natural and Built Environment Of Redevelopment of The Adjoining Church Property

The Public Notice recognizes that National Environmental Policy Act applies to the Corps’ decision whether to authorize the destruction of these jurisdictional wetlands, 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 the total mall project site, as well as the direct effects of the (a) development and attendant reconstruction of the interchange of I-65 North and Outer Loop, (b) the development of the Evangel Church property, and (c) the impact of the mall and the development of the Evangel property on traffic on the Outer Loop and in the Minor Lane neighborhood, on the quality of the human environment.

This project, which is located at the northeast quadrant of I-65 and the Outer Loop and contains 49 acres, proposes to construct a 203,622 square-foot Super Wal-Mart, a fueling station, 2 hotels (84 and 124 rooms), 151,700 Square feet of retail and restaurant space, 50 residential condo units and 14,800 square feet of retail and restaurant space. The project was approved by the Louisville Metro Planning Commission and Louisville-Jefferson County Metro Government Council in Ordinance 98, Series 2004, with the addition of a Binding Element that “no development or site disturbance shall occur unless all roadway improvements required by the development plan receive final federal, state and local approval[,]” and that “[a]ll roadway improvements required by the development plan shall be completed prior to requesting or issuance of any certificates of occupancy for the development[.]”

An earlier iteration of this mall project had been rejected by the Planning Commission out of concern with site access issues, and the proposal to reconstruct the intersection of I-65 north exit and entrance ramps to accommodate direct access to the site across Outer Loop was proposed by the developer to avoid exiting the mall project site through the Briarcliff intersection.

The proposal to shorten the length of the Northbound Outer Loop-I-65 Ramp and to create a new access to the Interstate System, triggers a requirement for approval by the U.S. Department of Transportation, Federal Highway Administration. This federal approval is the linchpin of the mall project since the two Binding Elements on which the approval was conditioned make the federal agency approval of the proposed interchange alterations and site access central to any site construction or occupancy.

KRC believes that the most appropriate manner in which to approach NEPA compliance is for the Corps and Federal Highway Administration to coordinate their NEPA review, with either agency taking the lead and the other a cooperating role. The development plan and rezoning of this property by the Louisville Metro Planning Commission hinges on federal approval of the relocation of the I-65 north exit and entrance ramps,and to the extent that applicant demonstrates to the Corps that there is no practicable alternative within the meaning of Section 404 that would satisfy the project purpose, the applicant has made the case that the Corps’ involvement in authorizing the 404 activity is likewise essential to fulfillment of the project. Since these two authorizations would be (if the applicant satisfies the avoidance threshold) critical to the project, the entire footprint of the project and its growth-inducing and neighborhood-affecting impacts must be considered direct effects and the assessment of effects and of reasonable alternatives must include the entire development and alternatives to that development, including both alternative locations and configurations.

The extent of federal control over the development due to the criticality of the site access issue, and the overall involvement of both agencies, is sufficient to turn a private action 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 FHWA approval of the access to the federal highway ramp is essential to the approved site development plan and without that approval, the project will not go forward as approved. Similarly, the FHWA approval of the interchange alteration and the Corps approval of the wetland destruction are both central to the proposed road, which is intended to provide direct access of the adjoining property and to facilitate redevelopment of that property. The scope of the environmental analysis should encompass the entire project.

Alternatively, even if the scope of the “project” is defined as the more discrete direct footprint of the wetland loss and the intersection, the effects of induced growth on the neighboring church property and the impacts of traffic increases through unsignalized intersections in the residential neighborhood immediately to the east and to the south of the Outer Loop must be considered as indirect effects, since it is apparent that the effects of sanctioning this wetland destruction and roadway reconstruction are integrally tied to a larger, foreseeable impact on the natural and built environment. In this instance, federal approval of the highway relocation is the linchpin of the project, and as such, the entire scope of the project is under federal control and responsibility, or, alternatively viewed, the development of the project property and nearby church property are clearly foreseeable direct effects of the federal approval of the relocated access ramp and intersection.

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 and development of the adjacent Evangel property) 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).

Among the effects that must be independently evaluated by the Corps under NEPA, 404(b)(1) and the “public interest review,” and by the FHWA under NEPA are these:

1. The direct effects of the proposal, including loss of open space, conversion of prior converted wetlands and jurisdictional wetlands to a shopping mall, additional noise and light pollution, and additional traffic congestion on the Outer Loop;

2. The direct growth-enabling effects of the project on the adjoining Evangel Church property. The increased likelihood of commercial or other more intensive redevelopment of the Evangel Church property was not considered by the Planning Commission in its deliberations, despite the fact that the record contained an advertisement from Walter Wagner Jr. Company advertising the Evangel Christian Life Center, 211 Acres as being for sale. Among the features prominently advertised in the ad are that the Church is “adjacent to planned shopping center,” with “easy access to I-65.” (The ad is annexed to the mailed copy of these comments).

The redevelopment prospect for this adjoining property is not a matter of speculation, but is admittedly being enabled and facilitated by the prospect of the “planned shopping center” with the new “easy access to I-65.”

In correspondence between the FHWA and the Kentucky Transportation Cabinet on August 1, 2002, the FHWA noted the potential impacts of the new access in opening up the adjoining lands to development:

It appears that the new access road will provide access to other parcels north of this proposed development. Without information on this area, we are unable to determine the potential impacts on the local road and the Interstate system. It is our understanding that the church has sold its holdings. Will this area develop commercially, or remain as it is, a church and school? We suggest that an informational public meeting be held to allow the residents to express their concerns with the proposal.

Letter of E. Wisniewski, FHWA to Secretary Codell, KYTC, August 1, 2002 (Attached to hard copy of these comments).

The effects of the proposed wetland conversion and the new highway access on both the adjoining neighborhoods and adjoining property must be considered by the Corps and FHWA, since the Planning Commission expressly failed to do so despite clear evidence that the new access to the property would have such effects on the immediate and adjoining properties. While the project proponent will try to avoid taking responsibility for such impacts, Fritiofson v. Alexander, 772 F.2d 1225, 1245-46 (5th Cir. 1985), instructs that the cumulative effects analysis must identify “(1) the area in which effects of the proposed project will be felt, (2) the impacts that are expected in that area from the proposed project, (3) other actions – past, proposed, and reasonably foreseeable—that have had or are expected to have impacts in the same area, (4) the impacts or expected impacts from these other actions, and (5) the overall impact that can be expected if the individual impacts are allowed to accumulate.” The EA should “consider (1) past and present actions without regard to whether they themselves triggered NEPA responsibilities and (2) future actions that are ‘reasonably foreseeable,’ even if they are not yet proposals and may never trigger NEPA-review requirements.” See also City of Carmel-by-the-Sea v. Dep’t of Transportation, 772 F.2d 1225, 1245 (5th Cir. 1985) (adopting Fifth Circuit’s Fritiofson analysis of cumulative impact analysis requirements).

The impacts on the adjoining neighborhoods and on the Outer Loop of increased traffic are clearly foreseeable. So too is the redevelopment of the adjoining Evangel Church property, which has been listed for sale with a commercial real estate firm advertising the location adjacent to a proposed shopping mall as a selling point. Both the Corps (to the extent that the wetland filling is unavoidable) and the FHWA must consider the growth-inducing effects of the permitting decisions on the adjacent property. Davis v. Coleman, 521 F.2d 661, 674-76 (9th Cir. 1975). (DOT must analyze the growth effects of constructing a new highway interchange in an otherwise undeveloped area). See also Sierra Club v. Marsh, 769 F.2d 868, 878-79 (1st Cir. 1986)

3. The effect of the proposed mall project on adjacent neighborhoods must be evaluated, since, like the development potential of the church property, the Planning Commission neglected to address the impacts of additional traffic on the safety and quality of life of the adjoining residential areas. One of the most serious shortcomings of this development proposal has been the failure to assess the impact of cut-through traffic on the neighborhood directly to the east.

The testimony in the Planning Commission record indicated that traffic coming to the proposed mall from Preston Highway would not use the Outer Loop to access the property but instead would enter and leave using the new access through the Evangel Church property onto Minors Lane. Despite this oft-voiced concern, no mitigation was proposed by the applicant.

The site development plan shows a roadway being constructed through the mall property to the Evangel property, thus allowing mall property traffic to exit to the north, and through the Evangel Church property onto Minors Lane.

The Planning Commission Hearing Officer’s Report, summarized in the April 8, 2004 Staff Report, reflected the significant issued from perspective of nearby neighbors:

The most prevalent concern pertained to the quality of life in the surrounding neighborhoods, the increase in cut-through traffic, and the impact on the adjacent residential streets.

* * * * The traffic study did not factor in a redevelopment of the Evangel site to a different and more intense development from a traffic perspective and did not include any other proposed development between the church and the Northern Ditch.

The McCawley /Minors Ln./ Preston Hwy. intersection was not analyzed and Minors Lane will be used by neighbors trying to avoid the Outer Loop.

The Hearing Officer identified among the issue for additional scrutiny: 2. Further testimony is recommended concerning the McCawley Rd./ Minors Lane/Preston Hwy. Intersection, which was not included in Metro Public Works’ original traffic analysis request. Public Works has since requested that this intersection be analyzed, or that the developer participate in a project to add left turn lanes to the McCawley/Minors Lane approaches,therefore, further testimony on these matters is recommended on these matters. (sic).

Unfortunately, no analysis of the effect and extent of cut-through traffic problems associated with proposed mall traffic seeking to exit north or east (through the proposed condominiums) was provided, and no modifications were made to the project proposal to address the cut-through traffic concerns of the local neighborhood. Instead, a “Binding Element” was proposed, the only measure adopted to address the concern with cut-through traffic, providing that:

The property owner or developer, if required to do so by the Director of Public Works, shall fund up to $50,000 for cut-through traffic abatement procedures.

This condition was modified by the Commission to limit the responsibility of the owner or developer to two years after 100% occupancy of the property.

The Planning Commission record, including the Site Inspection Committee Report finding and the Hearing Officer’s Report, reflect that increased cut-through traffic will occur in the neighborhoods north and south of the Outer Loop as residents come through neighborhood streets in order to access the new mall while avoiding major roads with attendant traffic snarls, adversely affecting local neighborhoods. Yet no traffic study was conducted on the extent of the impact of cut-through traffic and its effect on the ability of existing residents to leave their homes and travel those unsignalized neighborhood streets, and the impacts on safety of children and other residents along neighborhood streets lacking sidewalks were never evaluated.

4. The effect of the conversion of the property from agricultural use and the loss of permeable wetland and former wetland areas, and the impact of the development on flood frequency, runoff and adequacy of the proposed flood mitigation must likewise be evaluated.

The Pond Creek Basin is the most flood-prone area in the county, and the property in question is seriously constrained hydrologically. Yet despite expert testimony from former Corps hydrologist Robert L. Mullins indicating that the proposed mitigation measures were inadequate and that additional hydrologic investigation was needed to determine the effect if any of the project on local flood frequency or flood heights, no such study was performed and those potential hydrologic effects remain unanalyzed.

It was acknowledged by all parties that the proposal to create additional volumetric floodplain storage met and exceeded the 1:1 floodplain storage requirements of MSD, but there was significant disagreement between the mitigation plan author, Jim Mims, and Robert Mullins, who is a hydrologist with 33 years of experience as head of the Hydrology Section for the U.S. Army Corps of Engineers and 12 years thereafter as a consultant, as to the hydrologic response of the watershed to various storm events and whether the proposed development would exacerbate the flooding problems. According to Mr. Mullins, there were “fundamental mistakes” in the hydrologic study because it addressed only static creation of additional storage without considering the unique nature of the Pond Creek basin, in which the basin does not drain flood events and where multiple peak storm events such as the 1997 flood can quickly overwhelm storage capacity. Mr. Mullins recommended that a study routing various storm events through the basin was needed in order to properly address stormwater management and to assess whether the proposed plan would be adequate. His testimony, which is contained in pages 60-65 of the November 10, 2003 technical hearing, was ignored completely by the Commission, which failed to note or resolve the conflicting testimony as to whether use of a simple volumetric approach of digging or enlarging a hole to store floodwater would be effective in mitigating floodplain impacts from the conversion and paving of 49 acres of wetland that had been converted to farm use. Additionally, the loss of the wetland and potential wetland development area must be assessed. The Pond Creek Task Force Report (1997), commissioned to address potential solutions to the chronic and devastating flooding of the Pond Creek basin, was ignored in the decision to approve development of this site. The Report should be considered by the Corps and FHWA in both the determination of wherein lies the public interest, and in the determination of whether the conversion of the wetland areas and provision of access enabling commercial development are appropriate. The Report, at p. 24, 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. (Excerpt attached to hard copy).

The Pond Creek Task Force Report recommendation that the highest and best use of the land proposed for commercial development is for flood control and wetland restoration, and the loss of that potential due to the paving and filling of the area, should be given great weight in determining whether the issuance of a 404 authorization is in the public interest.

These, among other specific issues, deserve independent and thorough environmental analysis consistent with NEPA and the 404(b)(1) Guidelines.

III. Issuance of The Requested Authorization Is Not In The Public Interest

In addition to the requirements of the 404(b)(1) guidelines and effects and alternatives analyses mandated by NEPA, the applicant is obligated by law to demonstrate that the issuance of Corps authorization if in the “public interest.”

The Corps of Engineers has developed a regulatory 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 2.1 acres of wetland to facilitate construction of a shopping mall. The Council believes that in this instance, the factors that must weigh most heavily in determining wherein lies the public interest are these:

  • The potential for changes in hydrologic response due to paving over wetland and former wetland soils
  • Increased traffic congestion and traffic safety issues both on the Outer Loop and through the residential neighborhoods;
  • 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 adverse economic impacts of construction of a new mall on existing developed commercial areas such as the Jefferson Mall area;
  • The loss of availability of the property for wetland mitigation banking and inconsistency with the identified highest and best use of the land, among others.

For these reasons, KRC respectfully requests that the application be denied for failure to demonstrate the inability to avoid adverse effects on the jurisdictional wetlands; and that if and when the applicant crosses that threshold, the Corps coordinate with FHWA the timing and respective roles in developing the environmental documentation and alternatives analyses needed to comply with NEPA.

Tom FitzGerald, Director
Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone
(502) 875-2845 fax

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By Kentucky Resources Council on 11/21/2005 5:32 PM
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