Mr. Gib Owen
RE: Scoping comments for consideration in the preparation of an environmental impact statement ("EIS") for the permit application for the proposed St. Charles International Airport, Permit Application No. EM-20-020-0969.
Dear Mr. Owen:
The Louisiana Audubon Council, the Gulf Restoration Network, Save Our Wetlands, and the Sierra Club--New Orleans Group (collectively "Citizen Groups"), through undersigned counsel, respectfully submit the following scoping comments for consideration in the preparation of an environmental impact statement ("EIS") for the permit application for the proposed St. Charles International Airport. These comments supplement any comments provided directly by the Citizen Groups. Each of the Citizen Groups has an interest in the protection and conservation of the natural resources of Louisiana, and each is deeply concerned by the significant threats this project poses to the natural environment and quality of life. The National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321, et seq., requires the Corps to fully address in the environmental impact statement ("EIS") for the proposed St. Charles International Airport each of the issues raised and questions posed by the Citizen Groups.
The applicant, St. Charles International Airport, LLC, of Houston, Texas, initially proposed "dredging, filling, and construction of levees, pumps, and water control structures to support development of property suitable for airport development expansion and related infrastructure improvements and modifications" which it refers to as "the St. Charles International Airport and hurricane protection levee." Application ("Appl.") Attachment ("Att.") A at § 18. Features of the project include, inter alia:
The Army Corps of Engineers ("Corps") noticed its intent to prepare a draft EIS for the proposed project on October 24, 2002. 67 Fed. Reg. 65342 (2002). The proposed project involves construction of an airport facility and appurtenant structures on "approximately 8,153 acres of which approximately 4,253 acres is plaustrine [] and emergent wetland and 3,900 acres of open water." 67 Fed. Reg. 65342. According to the Corps' Federal Register notice, the proposal includes construction of:
Applicant proposes to demuck approximately 23,981,558 cubic yards of material from site. Applicant further proposes to fill area using approximately 59,032,115 cubic yards of material obtained from dredging the Mississippi River, the Bonnet Carre Floodway and commercials sources." Id.
At the February 18, 2003 public scoping meeting, the applicant's agent, Sherwood M. Gagliano, stated that the purpose of the project is to "fix" the deficiency in the existing New Orleans Louis Armstrong International Airport, stating that it will "partner" with the current airport. Mr. Gagliano indicated that the project would proceed in phases, with Phase I taking 8 - 10 years and including a 12,000 foot runway linked to the current airport, and a flood protection levee beside I-10. The full project was said to be a 50-year project. Mr. Gagliano asserted that the project is compatible with coastal restoration because CWPPRA, WRDA, and Coast 2050 all call for "multiple use." Mr. Gagliano also indicated that an "environmental education center" linked to the airport by rail is a part of the proposed project. Written material distributed at the public scoping meeting on behalf of the project applicant proclaims two broad dual purposes of the project: "1. Long term economic sustainability of the Greater New Orleans Metropolitan Area, southeastern Louisiana, and the Central Gulf South through the enhancement of airport facilities; and 2. Long-term environmental sustainability of the La Branche wetlands through implementation of a comprehensive restoration and conservation plan."
The applicant's proposed project must be clearly defined before an adequate EIS can be prepared. For example, whether there are three runways with taxiways or five, or whether there is or is not an "environmental education center" with an associated railway, can make a significant difference in the impacts to be identified and assessed. By way of further example, a recent newspaper article reported that the proposed project includes an "office park" - a feature not previously presented to the public. Also, merely referencing "appurtenant structures" is insufficient. There is no basis to believe that the applicant, the Corps, and the public would read "appurtenant structures" to have the same meaning. For example, does the applicant intend to build hotels? If so, how many, where, of what size? All "appurtenant structures" must be identified and described before the impacts of their construction, operation, and maintenance can be adequately assessed. The Corps must, at the outset of the EIS process, determine in full exactly what the applicant is proposing.
The proposed filling of over 4000 acres of wetlands in Louisiana's coastal zone is inconsistent on its face with ongoing and planned coastal restoration efforts. The applicant's attempt to dismiss such concerns by asserting that CWPPRA, WRDA, and Coast 2050 call for "multiple use" merely sidesteps the issue. The Corps must address whether the proposed airport development project is consistent with both the letter and spirit of CWPPRA, WRDA, and Coast 2050, as well as other applicable laws and public plans. It has been reported that the State of Louisiana has contracted with a public relations firm for the purpose of demonstrating to the public nationwide the importance of Louisiana's wetlands. Such an effort is, no doubt, linked to the necessity of seeking federal funding for coastal restoration efforts. Thus, the Corps must also consider the implications and impacts of this proposed project on the ability of the State and its local and federal partners to move forward with coastal restoration efforts.
Citizen Groups note that the applicant has stated, "While not included in this proposal, the proximity of the proposed facility to the Mississippi River offers the potential for future intermodal linkage with the marine shipping industry." Appl. Att. A at § 19. The applicant includes in its plan an intermodal freight center. Does the applicant, or some other entity, intend to make a future proposal for such an intermodal linkage to the marine shipping industry? Allowing an applicant to piecemeal the permitting process and thereby avoid the complete and timely assessment of all impacts is inconsistent with the National Environmental Policy Act ("NEPA"). The courts have interpreted NEPA to prohibit such "piecemealing" of projects. Thus, if either the applicant or another entity is planning a linkage with the marine shipping industry via the Mississippi River, the Corps must include evaluation of such impacts in the current EIS; otherwise, full and timely identification and assessment of impacts will have been avoided. However, whether currently planned or not, it is clear that such a linkage is a reasonably foreseeable outgrowth of the proposed project. As such, the Corps has a duty to consider in this EIS the impacts of such a linkage. 40 C.F.R. § 1508.8.
Similarly, the Lake Pontchartrain Basin Foundation ("LPBF") has called to the attention of the Corps another potential "piecemealing" of the instant project. See Exhibit C (LPBF correspondence to the Corps regarding a permit application of St. Charles Land Syndicate, COE No. EB-20-020-3367). Citizen Groups request that the Corps thoroughly investigate the relationship of these permit applicants and applications to determine if the project has been inappropriately segmented. Regardless, however, the Corps is required to consider the impacts of the St. Charles Land Syndicate permit in the instant EIS in its assessment of cumulative impacts. 40 C.F.R. § 1508.7.
All of the various project descriptions indicate that the scale of this proposed project is enormous. As the Corps has already acknowledged by proceeding with preparation of an EIS, the impacts of the proposed project would be significant. Those impacts, which may be significant in any location, are greatly amplified here by the site selected for the project.
The primary natural resource at risk from the proposed airport development project is the project site -- a sizeable tract of wetlands and open water in Louisiana's coastal zone. The applicant proposes to construct the airport development on approximately 8,153 acres of wetlands (4,253 acres) and open water (3,900 acres). 67 Fed. Reg. 65342. Wetlands provide multiple functions and values that are beneficial to society. These benefits include, among others, floodwater storage, fish and wildlife habitat, natural water quality improvement, storm buffering, and opportunities for outdoor recreation. In addition to this valuable landscape, the proposed project threatens other natural and cultural resources, such as waters, species, soils, air quality, and, for some, a way of life. In order to fulfill its responsibilities under NEPA, the Corps must first fully define the scope of the resources put at risk by the proposed project. To that end, the Corps is urged to draw on the expertise of the various state and federal resource agencies, such as the Louisiana Department of Wildlife and Fisheries, the National Marine Fisheries Service, the Environmental Protection Agency, and the Fish and Wildlife Service. NEPA favors an interdisciplinary approach to the preparation of an EIS. 40 C.F.R. § 1502.6
The applicant is identified in the information made available for review as "St. Charles International Airport, LLC" ("applicant") of Houston, Texas. At the public scoping meeting some persons affiliated with this private entity were identified. It was stated at the public meeting that the applicant proposes to construct the airport and that no public funds would be involved. However, insufficient information gives rise to a number of questions: What, if any, commitment has been made to develop the proposed airport project? If such commitment exists, the public should be provided sufficient detail to make public review and comment meaningful. If there is no such commitment, is the Corps being asked to permit, and the public being asked to accept, enormous environmental impacts to make available land for a purely speculative venture? What assurances does the public have that if these wetlands are filled for the purportedly needed airport that they, once filled, will not be used for other development? Despite the applicant's assertions at the public meeting, the question remains as to what extent taxpayer dollars may fund the proposed project, portions of the proposed project, or infrastructure modifications? What assurances are there that the proposed project will not ultimately become a public burden? In addition, to what extent will previous taxpayer investments in infrastructure be lost to alteration or elimination of such infrastructure? What, if any, is the applicant's track record of compliance with environmental protection permits? Further, it is the understanding of the Citizen Groups that the current placement and manner of construction of Interstate 310 is a result of a settlement of earlier litigation; thus, what are the implications, both factual and legal, of the proposed modification to I-310? The Corps is requested to address these questions and provide the responses to the public.
The applicant defines the project as "the St. Charles International Airport and hurricane protection levee." Application ("Appl.") Attachment ("Att.") A at § 18. The project purpose is declared to "provide land adjacent to the existing New Orleans International Airport suitable for airport expansion consisting of the construction of a new airport facility that would be used to complement the New Orleans International Airport." Id. at § 19. The applicant further asserts that the purpose of the hurricane protection levee is to provide "protection to the deteriorating La Branche Wetlands[]" and to "protect the new airport facility and existing interstate and railroad infrastructure[.]" Id. In materials provided at the public scoping meeting, the applicant framed the purpose of its project in more grandiose terms:
Comments from citizens at the public scoping meeting suggest that there is widespread skepticism regarding the need for the proposed project. Clarification of the genuine purpose and need for the proposed project is an essential early step in the NEPA process, as it is necessary to inform the alternatives analysis. 40 C.F.R. § 1502.13.
NEPA requires that the permitting agency, in this instance the Corps, consider alternatives to the proposed project. 42 U.S.C. § 4332(c)(iii). That analysis of alternatives is considered the "heart" of the EIS. 40 C.F.R. § 1502.14. Indeed, the Council on Environmental Quality's ("CEQ's") regulations, which are binding on the Corps, mandate that the agency "[r]igorously explore and objectively evaluate all reasonable alternatives[.]" 40 C.F.R. § 1502.14(a). The analysis of alternatives must also include reasonable alternatives "not within the jurisdiction of the [Corps]." 40 C.F.R. § 1502.14(c). Some of the alternatives which the Corps should rigorously and objectively evaluate in regard to the airport are identified below. The alternatives analysis should include a comparison of the environmental impacts - direct, indirect, and cumulative, including synergistic effects - associated with each.
The Corps is required to consider the "no action" alternative. 40 C.F.R. § 1502.14(d). Given the scale of the proposed airport development, the location for which it is proposed, and the magnitude of environmental impacts of the proposed project, as well as ongoing and planned coastal restoration efforts, adoption of the no action alternative as the preferred alternative would be justified. No action is a viable and beneficial alternative with respect to protecting and preserving the wetlands, and it is consistent with state and federal policy on this matter.
On the one hand, in its attempt to justify its proposed project, the applicant asserts, for example, that there is a "growing need for additional air service capacity" in this region, and that the existing New Orleans airport in 1999 "operated at 66% serious delay capacity and 79% moderate delay capacity." Appl. Att. A at § 19. But, on the other hand, in its written materials handed out at the public scoping meeting, the applicant acknowledges that "aircraft delay at [the existing New Orleans airport] is small[.]" Initially, the Corps must determine if the applicant's representations regarding the current functioning and various deficiencies of the existing New Orleans airport are accurate.
Assuming, arguendo, that there are significant deficiencies at the New Orleans airport, the Corps should determine if those problems are a result of a lack of physical capacity or a result of less than maximum efficiency of operations or configuration. Any deficit in the capacity of the existing New Orleans airport need not be corrected by the construction of another international airport. It is most reasonable to consider maximizing the efficiency of the existing airport as an alternative to development of a new airport. The Corps' alternatives analysis could hardly be considered rigorous or objective if this most basic alternative is not adequately assessed.
Assuming, arguendo, once again, that there are significant deficiencies at the New Orleans airport, and that a larger configuration is necessary, a small-scale expansion of the currently existing airport, should be considered as an alternative. A relatively small expansion of the existing airport in an area other than wetlands, may meet the purported need as well as avoid and minimize environmental impacts. Media reports have indicated that some expansion of the existing airport is already under consideration. See, for example, Exhibit D. The Corps should explore and objectively evaluate an environmentally compatible small expansion of the existing airport as an alternative to the proposal at hand.
The applicant concedes that one alternative to its proposed project is the proposed regional airport to be located between Baton Rouge and New Orleans at a site yet to be identified. Appl. Att. A at § 19; see also Exhibit D. As would be expected, the applicant asserts advantages of its proposal over that of a regional airport. Id. Certainly, a location other than that proposed by the applicant could assure the continued exportation of Louisiana products and serve as the nation's staging area for trade with Latin American and other international markets, which the applicant asserts as bases for justifying its proposed project. The Corps has an obligation to take an independent, rigorous, and objective look at this very real alternative. 40 C.F.R. § 1502.14(a).
The Corps' consideration of this alternative also should include consideration of impacts - direct, indirect, and cumulative, including synergistic effects - if both the proposed regional airport and this proposed project should go forward.
There are numerous reasonable alternatives which may be proposed by others or which should be identified by the Corps on its own initiative, which warrant comprehensive analysis pursuant to NEPA. Moreover, "NEPA requires a federal agency to study, develop, and describe appropriate alternatives to a proposed action[.]" Sierra Club v. United States of America, 23 F. Supp. 1132, 1144 (N.D. Calif. 1998); 42 U.S.C. § 4332(E). Because, as the Environmental Protection Agency ("EPA") has already noted, the pending project proposal "is one of the largest and most complex projects ever reviewed under the [Clean Water Act] Section 404 program, and would likely run counter to the extensive Federal and state efforts to restore Louisiana's valuable coastal wetlands[,]" the importance of the Corps' conducting a thorough alternatives analysis has never been greater.
While the scoping process, a review of alternatives, and identification and assessment of impacts is triggered by NEPA, in considering the issuance of the requested § 404 permit, the Corps also has duties pursuant to the Clean Water Act. 33 U.S.C. § 1344. Specifically, the Corps' permitting decision must be informed by 40 C.F.R. Part 230, referred to as the Section 404(b)(1) Guidelines. The Guidelines include requirements designed to limit development on wetland sites, to minimize the impacts of any development that must occur, and to mitigate for any unavoidable destruction of wetland habitat and values. The Citizen Groups expect the Corps to implement and comply with the 404(b)(1) Guidelines in all respects. If a project, such as the proposed airport, does not require a location in or near water, the Guidelines provide that "practical alternatives that do not involve special aquatic sites are presumed to be available, unless clearly demonstrated otherwise." 40 C.F.R. 230.10(a)(3). The term "special aquatic site" includes wetlands, mud flats, and vegetated shallows. 40 C.F.R. 230.40. Where a non- water-dependant project is proposed for a wetlands site, such as here, it is the applicant's burden to demonstrate that no practical alternative exists. See Exhibit A at 2 - 4 for further discussion of this requirement. In this instance, the applicant has not demonstrated that there are no practical non-wetland alternatives, nor under the circumstances could it make such a showing.
In preparing the EIS, the Corps should consider synergistic effects as a subset of the types of impacts or effects which NEPA and its implementing regulations require the Corps to assess: direct, indirect, and cumulative. 40 C.F.R. § 1508.8. "Effects" and "impacts" are synonymous in the CEQ NEPA regulations. Id. "Effects includes ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative." Id.
Direct impacts are whose "which are caused by the action and occur at the same time and place[]" as the action. 40 C.F.R. § 1508.8(a). The direct impacts of the proposed project are vast.
Indirect effects are those effects "which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable." 40 C.F.R. § 1508.8(b).
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.
Id. The Corps' own regulations also require consideration of indirect impacts. 33 C.F.R. § 325, App. B 7(b)(3). Because of the nature of the proposed project, i.e. primarily an airport, the very large footprint of the project, and the habitat type in which the project is to be located, the indirect impacts can be expected to be highly varied, as well as later in time or removed in distance.
The CEQ regulations implementing NEPA require that the Corps include in the EIS a discussion of environmental impacts, which includes cumulative impacts. Cumulative impact is, in turn, defined as follows:
Cumulative impact is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.
40 C.F.R. § 1508.7. In addition, the Corps' own regulations implementing NEPA, which supplement the CEQ regulations, also require consideration of cumulative impacts. 33 C.F.R. § 325, App. B 7(b)(3) ("once the scope of analysis has been defined, the NEPA analysis for that action should include direct, indirect and cumulative impacts on all Federal interests within the purview of the NEPA statute"). In this instance, the cumulative impacts analysis is of the utmost importance in light of the massive scale of the proposed project, the location of the project in Louisiana's coastal zone, and the magnitude of the associated wetlands loss, in conjunction with the past and ongoing wetlands losses.
The following is a listing of specific areas of concern, which the Corps should consider in the EIS for the proposed project in addition to the matters discussed above. The Corps has the responsibility also to consider additional potential impacts brought to its attention by others, as well as to identify and to address impacts on its own initiative. Each of the following must be addressed in terms of direct, indirect, and cumulative impacts, and each should be considered in light of construction, operation, and maintenance of the proposed project.
The Corps must comprehensively assess the effects of that portion of the project which the applicant asserts to be for the purpose of wetlands protection, i.e. the levee. The impacts to any remaining wetlands in the project area and nearby must be identified. In addition, the Corps should consider the implications for Louisiana's coastal restoration efforts if the destruction of over 4,000 acres of wetlands is permitted. Consistency with Coast 2050, as well as other public wetlands conservation efforts, relevant laws, and the public policy of no net loss of wetlands is essential.
Potential water quality impacts also include those resulting from stormwater runoff - both during construction and operation of the proposed facility. The runoff will likely contain contaminants, such as PAHs, which should be taken into consideration, as well. In addition, the State's Clean Water Act § 303(d) list, available from the Louisiana Department of Environmental Quality, should be consulted to determine if the project- related activities may exacerbate the condition of already impaired waters.
Thank you for this opportunity to participate in the EIS scoping process. Please keep the Tulane Environmental Law Clinic on the mailing list for all public notices related to this permit application. We look forward to receiving a copy of the Scoping Document.
Prepared by:
Prepared and respectfully submitted by:
6329 Freret Street
Attachments: