Mr. Roger Swindler
Re: Comments in Opposition to St. Charles International Airport, U.S. Army Corps of Engineers Permit Application Number EM-20-020-0969. The Corps of Engineers is required to apply the regulations found in Section 404 of the Clean Water Act Title 33, and 40 of the Code of Federal Regulations.
Dear Mr. Swindler:
Save Our Wetlands, Gulf Restoration Network, Louisiana Audubon Council, and Sierra Club- New Orleans Group ("Citizen Groups"), through undersigned counsel, respectfully submit the following comments in opposition to the issuance of permit EM- 20-020-0969. The citizen organizations submitting these comments are based in South Louisiana and are deeply concerned by the threat this project poses to Louisiana's water resources and quality of life. Members of these groups use the water resources of Louisiana, including the water bodies threatened by the proposed airport project, for recreational and commercial purposes. The membership of these organizations fish, hunt, recreate and boat in areas that would be destroyed or severely harmed by the proposed new airport project.
Stretching from Kenner to LaPlace, the LaBranche wetlands encompass more than 14,000 acres of marsh and forested swamp. The LaBranche wetlands are considered the most productive wetlands in the Lake Pontchartrain Basin, and play a key role in the lifecycle of many aquatic organisms. Their importance has continued to grow as other wetland areas on the south shore of Lake Pontchartrain, such as Bayou Sauvage, have been cut off by levies from the basin.
State and federal agencies, as well as private landowners, have recognized the value of these resources and taken measures to protect them. The importance placed on the LaBranche wetlands is demonstrated by the money and effort spent to improve and protect their value to the environment. LaBranche hosts the first CWPRAA marsh restoration project, and more than three million dollars have been spent to prevent further erosion and to restore a healthy, productive marsh to areas along the lakeshore. LaBranche is also a favorite destination for environmental education and is extensively used by local school groups as well as scientists from several universities and governmental agencies.
The LaBranche wetlands are also of vital importance for recreational and commercial fishing. They serve both as an important site of fishing and as a crucial nursery and breeding grounds for commercially valuable species. In addition to direct impacts, the Corps must consider the adverse affect of construction and the relocation of major traffic arteries. Because of the vital importance of the LaBranche wetlands and their unique role in a much larger ecosystem, the Corps must deny this permit which would allow the destruction of the resource.
Section 404 of the Clean Water Act authorizes the United States Army Corps of Engineers ("Corps") to deny or issue permit for the discharge of dredge or fill material. In considering permit applications, the Corps is required to apply the regulations found in Title 33 and Title 40 of the Code of Federal Regulations.
In addition, the Corps is directed by Section 404 to apply guidelines developed by the Administrator of the Environmental Protection Agency ("EPA") in cooperation with the Secretary of the Army. These guidelines create legal obligations designed to limit development on wetland sites, minimize the impacts of any development that does occur, and, as a last resort, to mitigate for any unavoidable destruction of wetland habitat and values. In making permit decisions, the Corps' New Orleans District is also bound by regulations and internal guidance documents promulgated by the Headquarters, United States Army Corps of Engineers ("HQUSACE"). Because the applicant has failed to comply with both EPA and Corps guidelines, the permit should be denied.
Under the EPA guidelines, the first inquiry is to determine whether the proposed project is "water dependent." The appropriate test is included in the guidelines: Does the proposed project "require access or proximity to or siting within the special aquatic site in order to fulfill its basic purpose." If the project in question does not require a location in or near water, the burden rests on the applicant to demonstrate that no practical alternatives exist. In cases where a nonwater-dependent project is proposed for a wetland site, "all practical alternatives that do not involve special aquatic sites are presumed to be available, unless clearly demonstrated otherwise." The term "special aquatic site" includes wetlands, mud flats, and vegetated shallows.
The application submitted in support of this permit demonstrates that the proposed project does not depend on use or proximity to a water resource. The basic purpose, as stated by the applicant, is to improve cargo and passenger air service to the New Orleans region and to build a large industrial park, along with hotels and shopping centers, which are easily accessible from an airport. The applicant specifically mentions that no marine linkage is part of this project. The applicant states that "the area of the site for the St. Charles International airport will accommodate up to 10,00,000 square feet of cargo, freight, warehouse, light industry and aircraft maintenance facilities, as well as a major commercial development." Clearly, these activities are not water dependent. Indeed, the applicant must go to great lengths through mucking out, filling, and leveeing to render these wetland areas suitable for development.
The applicant does not need to own or control a particular location in order for it to be considered as a practical alternative. Practical alternatives are defined in the Guidelines:
The information submitted along with the permit application fails to rebut the presumption that nonwetland alternatives are available. Alternatives include the proposed regional airport, expansion of the existing airport, and increased use of other airports within the greater New Orleans region. Expansion of the current New Orleans International Airport is currently being studied by the Federal Aviation Administration. The applicant makes no reference to these plans and has failed to coordinate their proposed project with the existing airport. Because the applicant's permit application fails to adequately address the consideration of alternatives to wetland development, the Corps must deny this permit.
In addition, even if part of the project is "water dependent," the Corps must still determine whether each of the component parts of the project requires location in or near water. The Corps cannot presume that the different aspects of an applicant's project must be integrated or contiguous, or that the project must be built in the manner proposed by the applicant. The burden is on the applicant to demonstrate that any part of the project must be built on a wetland site. The St. Charles International Airport project contains numerous components, each of which must be examined to determine if they are water- dependent. Before granting a 404 permit, the Corps must analyze each part and determine that it is water dependent and that no practical alternative exists.
In addition to steering development away from wetlands areas through the alternatives analysis, Section 404(b)(1) also requires the applicant to take "appropriate and practicable steps … which will minimize potential adverse impacts of the discharge on the aquatic ecosystem." Such steps include planning dredge and fill operations to minimize impacts on wildlife, using sites which have already been developed, and using appropriate technology to minimize adverse environmental effects. The applicant's plan specifically fails to comply with several of these requirements. For example, the applicant is directed to avoid "the destruction of remnant natural sites within areas already affected by development" or "having unique habitat or other value, including habitat of threatened or endangered species." The LaBranche wetlands are the last remaining ecosystem of their type on the south shore of Lake Pontchartrain and are a recognized home of several federally protected endangered and threatened species. These species include the brown pelican and the bald eagle.
The applicant has also failed to include any mitigation measures to replace wetlands and other wildlife and fisheries resources which the project will destroy. Mitigation of unavoidable losses is specifically required by the 404(b)(1) guidelines as well as the Corps' own regulations. "Appropriate and practicable compensatory mitigation is required for unavoidable adverse impacts which remain after all appropriate and practicable minimization has been required."
The permit application submitted to the New Orleans District proposes to impact over 9,000 acres of wetlands and vegetated shallows, about half of which is tupelo/cypress swamp. The application notes that this information is not based on a site- survey but on "available in-house date." The actual impact may in fact be much greater than the applicant indicates. Because the applicant has failed to even define the types and values of the wetland habitat to be destroyed and altered, the Corps should deny this permit.
Several of the waterways which the project proposes to impact are listed by the state of Louisiana as scenic and/or "outstanding natural resource waters." In addition, the application fails to identify Bayou Trepagnier as a waterbody affected by the proposed plan. As a scenic, estuarine bayou and an outstanding natural resource water, consideration should be given to the impact the proposed project will have on this fragile and already-polluted waterbody.
The applicant's proposal includes enclosing the part of the LaBranche wetlands which are not destroyed within a levee system. According to the applicant, a portion of the marsh is currently eroding into open water each year. Although steps to improve the health of the marsh are welcome, under its own guidance documents, Corps cannot consider this as mitigation. Even as open water, this area provides vital habitat and serves an important ecological function. The applicant proposes to use this area as a disposal site and to destroy its existing ecological value.
The applicant admits that "the new airport facility would decrease the total habitat acreage with the La Branche Wetlands." However, the proposed project includes no compensatory mitigation. Further, the unique and valuable nature of the LaBranche wetlands suggests that no amount of mitigation could replace their environmental and social function. Because the applicant has failed to demonstrate any scheme for mitigating the massive damage which this project would cause, the Corps must deny this permit.
In addition to complying with EPA and other guidelines, the Corps regulations require a "public interest review" for each permit. This wide-ranging review includes cumulative impacts and should "reflect the national concern for both protection and utilization of important resources." The Corps is directed to consider:
All factors which may be relevant to the proposal must be considered including the cumulative effects thereof: among those are conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, 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.
The Corps should consider the following additional factors during its public interest review:
The Corps' regulations implementing this review process also specifically address the types of wetlands "considered to perform functions important to the public interest." These include:
The LaBranche wetlands threatened by this project perform all of the functions listed above. Corps regulations require that, if the district engineer finds wetlands to meet the criteria listed above, a permit can only be granted after a cost/benefit analysis determines that the "benefits of the proposed alteration outweigh the damage to the wetlands resource." The cost to the public of destroying the LaBranche wetlands includes tremendous negative impacts to fisheries, hunting, recreation, education, and scientific research. Additional and important cumulative effects include increased runoff, air and noise pollution, and the relocation of several residential communities and increased air traffic over others. Therefore, because the requirements of the Corps public interest review are not met, this permit must be denied.
The National Historic Preservation Act ("NHPA") requires a federal agency or department to "take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such agency shall afford the Advisory Council for Historic Preservation … a reasonable opportunity to comment with regard to such undertaking." The first step in meeting the procedural safeguards required by NHPA is designating the "area of potential effects." This area is defined as "the geographic area or areas in which an undertaking may directly or indirectly cause changes in the character or use of historic properties." Further, the area of potential effects ("APE") is determined by the "scale and nature" of the project.
The public notice provided by the Corps states that no listed properties are located within the APE. However, the Louisiana Register of National Register of Historic Places maintained by the state department of Culture, Recreation, and Tourism lists several sites in close proximity to the proposed airport. In addition to direct impacts and increased noise, visual, and air pollution, the applicant's proposed construction activities (including laying pipelines to carry dredged material) would impact these sites. The public notice also refers to several archeological sites located within the project footprint.
Given the scale of the proposed project, the APE should include areas outside of the actual project footprint. For a recent project in New York, for example, the APE for a power plant permitted by the New York District, Corps of Engineers was set at five miles. Further, potential effects are not limited to actual, physical disruption. The Corps must comply with its obligations under the NHPA, including consultation requirements.
The citizens groups submitting these comments specifically request the Corps of Engineers hold a pubic hearing on this permit application. Citizens groups specifically ask to be notified in writing at the address below of any hearing scheduled or any significant further action on this permit application. The issues raised by this permit include direct and cumulative affects on a valuable water resource and clearly warrant public participation.
In addition, the project is a major federal action under the National Environmental Policy Act and therefore and Environmental Impact Statement ("EIS") is required. Citizens groups respectfully request the Corps prepare an EIS for this project. This EIS should include a detailed evaluation of the cultural and environmental resources that the project would affect. This document should also address nonwetland alternatives to the proposed project.
The applicant proposes a project which is tremendous in scale and which impacts one of the most valuable environmental resources in the region. The Corps is directed to apply specific regulations to determine if granting a permit is in the public interest and environmentally sound. An applicant who wishes to build in a wetland area must overcome several regulatory challenges. The brief, undetailed information which the applicant provided to the Corps does not allow for a meaningful evaluation of the proposed project. However, based on the information provided and the applicant's plan, the project would violate numerous Corps, EPA, and other regulations and would not serve the public interest. Preserving the LaBranche wetlands allows for the continued and productive use of this resource for recreation, wildlife and fish, and scientific research. In order to protect this environmentally important area and to comply with its own regulations, the Corps of Engineers must deny this permit.
Respectfully submitted:
James A. Johnston
Elizabeth Teel
New Orleans, LA 70118
Counsel for Save Our Wetlands,
The Tulane Environmental Law Clinic appears solely as a representative of the aforementioned Clients. These comments do not necessarily represent the views of Tulane University or the Tulane Law School. Binet, G., St. Charles Parish, Hahnville, LA, and Ensminger, A. B., Wetlands and Wildlife Management Co., Inc., Belle Chasse, LA. Habitat Degradation of the LaBranche Wetlands and an Approach to Its Restoration.
See Economic Impact Study, Bayou La Branche Wetlands Creation Project. LA Dept. Of Wildlife and Fisheries, 1994.
USGS Project Overview, Bayou LaBranche Wetlands Marsh Creation. 33 USC 1344(b)(1), 40 CFR 230.10(a)(2), 40 CFR 230.10(a)(3), 40 CFR 230.40.
Federal Register:
November 28, 2000 (Volume 65, Number 229). For information on the Environmental Impact Statement being prepared on behalf of the FAA, see: Letter, Plantation Landing Permit Elevation, HQUSACE April 21, 1989. 33 CFR 320.10(d), 33 CFR 230.75, 33 CFR 320.4(r).
Clean Water Act Section 404(b)(1).
LDEQ Water Quality Management Plan, Section 305(b) Water Quality Inventory, Appendix A: 2000 Statewide Water Quality Assessments. Letter, Plantation Landing Permit Elevation, HQUSACE April 21, 1989 at Paragraph 23. Permit Application, Attachment A, Page 7. 33 CFR 320.4(a), 33 CFR 320.4(a).
St. Charles Parish Council, Resolution 4995, Adopted Feb. 4, 2002. 33 CFR 320.4(b)(2), 33 CFR 320.4(b)(4), 16 USC 470(f), 33 CFR 800.16(d), 33 CFR 800.16(d).
For example, the National Register-listed LaBranche Dependency House is located in St. Rose, LA, next to a proposed pipeline route and immediately adjacent to the project area.
Advisory Council on Historic Preservation, New York: Athens Generating Project Advisory Council on Historic Preservation. 36 CFR 800.16(d), 42 USC 4321.4