Ms. Melanie Bauder
RE : Comments on Behalf of Save Our Wetlands, Gulf Restoration Network, Louisiana Audubon Council, and Sierra Club - New Orleans Group in Opposition to Water Quality Certification for the St. Charles International Airport, WQC No. 010627-05
Dear Ms. Bauder:
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 water quality certification No. 010627-05. 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 fishes, hunts, recreates and boats in areas that would be destroyed or severely harmed by the proposed new airport project.
Save Our Wetlands, Gulf Restoration Network, Louisiana Audubon Council, and Sierra Club - New Orleans Group strongly oppose the issuance of Water Quality Certification No. 010627-05 and urge LDEQ to deny certification for the following reasons:
The proposed project would cause a massive, negative impact to a highly sensitive and valuable wetland resource. Water quality impacts from the proposed project extend would throughout the Lake Pontchartrain basin. The proposed project would violate Louisiana’s water quality standards. Local citizens and government are strongly opposed to the project. The applicant failed to provide in its application the information the Department of Environmental Quality needs to make an informed decision.
The applicant proposes to build a second international airport in the New Orleans area immediately adjacent to the current Louis Armstrong International Airport. The project would involve filling of more than 4,000 acres of wetlands and the relocation of Interstate 310, the Illinois Central railroad, and several oil and gas pipelines. The proposed airport area includes at least three former landfills and numerous illegal dumpsites. A total of two pumps and four water control structures would be required to manage rainfall and water within the project area.
The Louisiana Department of Environmental Quality (LDEQ) is required to review applications for water quality certification “in terms of compliance with State Water Quality Standards, the Water Quality Management Plan for the water body affected by the activity, and applicable state water laws, rules, and regulations.” LAC:33:IX.1507.C.3 In addition to numerical guidelines, Louisiana’s water quality regulations provide additional direction for protecting water quality and water use. Louisiana’s waters are to be “protected for recreational uses and for the preservation and propagation of desirable species of aquatic biota and indigenous species of wildlife.” LAC:33:IX.1109.B.1. Further, the state’s antidegradation policy requires that “designated uses will not be adversely impacted” by any activity. LAC:33:IX.1119.C. The proposed project threatens to severely and negatively impact designated uses as well as wildlife and fisheries resources.
Courts have recognized that the LDEQ’s duty is ensure that a proposed action will not violate state water laws and regulations. The First Circuit Court of Appeal recently explained this duty: “To grant a water quality certification the DEQ must verify that the proposed activity complies with applicable water quality standards.” Matter of West Pearl River Navigation Project. 657 So.2d 640, La.App., 1 Cir.1995.
The LDEQ’s action in granting a water quality certification is also subject to the constitutional requirements laid out in the Rubicon and Save Ourselves decisions. In the Matter of Rubicon, Inc., 670 So.2d 475, 481, No. 95-0108 (La. App. 1 Cir. 2/14/96), Save Ourselves, Inc. v. Louisiana Environmental Control Commission, 452 SO.2d 1152 (La. 1984) Under the public trust doctrine created by Louisiana’s constitution and articulated by the Louisiana Supreme Court in Save Ourselves, the LDEQ has an affirmative duty to consider environmental factors in its decision-making process.
Article IX, Section 1 of the Louisiana constitution states that:
The natural resources of the state, including air and water, and the healthful, scenic, historic, and esthetic quality of the environment shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people.
The LDEQ must therefore meet certain basic substantive and informational requirements. These include accurately assessing the real and potential environmental harms of the project, examining alternatives to the proposed action, and performing a cost/benefit analysis. The LDEQ is therefore also obligated to ensure compliance not only with its own water quality regulations, but also with other state water laws and Louisiana’s constitutional and statutory framework governing environmental decision-making.
For a project with a footprint of almost 10,000 acres and an estimated cost of 2 to 7 billion dollars, the applicant submitted only minimal information. The water quality certification application lacks the detail required for the LDEQ to make an informed decision or to allow effective public comment on the proposal. For example, the applicant fails to:
Identify the nature, composition, volume, and frequency of water to be discharged via pump into Bayou LaBranche and Lake Pontchartrain. Include Bayou Trepagnier as an affected water body. Determine the type and extent of contamination from the landfills located on-site. Describe the landfills located in the area and the steps, which will be taken to avoid further contamination. Discuss water quality impairment during the construction phase
The application provides absolutely no information on the water to be discharged through the pump system. The applicant additionally fails to provide detailed information on the three on-site landfills. Before considering this certification, LDEQ should require the applicant to address the type and composition of the discharge, the volume of discharge, and the frequency of discharge.
The proposed project would negatively affect Bayou LaBranche, the Duncan (Parish Line) Canal, Bayou Trepagnier, and Lake Pontchartrain. The applicant fails to include Bayou Trepagnier, located between the Bonnet Carre spillway and the proposed project area, on the list of affected waterbodies. The close physical proximity and hydrological link between Bayou Trepagnier and the project site, Lake Pontchartrain, and Bayou LaBranche mandate that the LDEQ consider the affects on this waterbody.
Bayou LaBranche is listed by the state as an “Outstanding Natural Resource” and designated for primary contact recreation (such as swimming and bathing), secondary contact recreation (including boating and fishing), and fish and wildlife propagation. The current level of water quality in Bayou LaBranche does not allow for these uses, however. The overall water use support is listed as “partial,” while two out of four designated uses are not supported. The other two are only partially supported by the current water quality in Bayou LaBranche.
The LDEQ suspects that organic enrichment, low dissolved oxygen, and pathogens from upstream sources are the cause. The proposed project would increase pollution in Bayou LaBranche, as well as negatively affect the LaBranche wetlands area through increased traffic and air and noise pollution. Negative affects from the project would also occur during construction, as thousands of acres are “mucked out” and heavy equipment hauled through the area.
Lake Pontchartrain would be similarly affected by the proposed project and is also considered by the state to be in a degraded condition. The lake would receive discharge from the proposed project directly and through Bayou LaBranche, both from the proposed pumping stations and from the water control structures included in the plan. The proposed plan threatens critical and vulnerable state water resources which are already in a degraded state. The LDEQ should deny water quality certification because the applicant has failed to demonstrate that no degradation would occur.
In order to construct the airport and other facilities such as hotels, office space, and warehouses, the applicant proposes to dredge part of Lake Ponchartrain and to fill-in almost 10,000 acres of wetlands and open water. The project would destroy some 4200 acres of tupelo-cypress gum swamp. The total cost to build the airport has been estimated at 2 to 7 billion dollars. Yet despite the massive impact required to build an entire international airport in a wetland area, the application contains only a brief description of the project and no mention of the potential serious impacts on water quality posed by the dredging or operation of the pumps and water control structures. Without this crucial information, the LDEQ cannot make an informed decision regarding the impact of this project and determine compliance with Louisiana’s water quality standards.
The applicant also proposes to use material from the Mississippi River as well as the Bonnet Carre Spillway to fill-in wetlands. Significant adverse impacts may occur from the dredging and hauling needed to remove sediment from these areas, both from the “borrow areas” and the areas to be filled-in. The Bonnet Carre spillway, for example, covers over ten square miles and includes much productive wildlife habitat. The applicant proposes filling in areas of Bayou LaBranche that are currently open water with borrow material from the airport site. This area is known to contain at least three former landfills. Any sediment or material which would be used as fill would have to be tested to determine if pollutants are present, including heavy metals and toxic substances such as mercury.
Louisiana’s water quality regulations require that designated uses of the state’s waters remain protected. An even higher burden applies when, as with Bayou LaBranche, a water body has been designated by the state as an “outstanding natural resource.” In that case, the regulations require that “the administrative authority shall not approve that activity if it will cause degradation of these waters.” LAC:IX.1119.C.4 The LDEQ is therefore forbidden from certifying any activity which may cause any degradation to Bayou LaBranche. It is clear that the applicant and the LDEQ have not met the high standard required to certify a project of this scope and which threatens outstanding natural resource waters.
To grant a water quality certification, the LDEQ must first determine if the proposed project would violate the state’s water quality standards. These standards include a broad range of requirements regarding criteria such as toxicity, turbidity, color, odor, taste, and temperature. Louisiana’s water quality standards also include provisions for protecting wildlife and fisheries and allowing recreational and commercial use of the state’s waters. The application submitted by St. Charles International Airport LLC raises serious concerns that many or all of these standards would be violated. Based on the limited information provided by the applicant to the LDEQ, the discharge proposed by the applicant would violate state water quality regulations. The LDEQ should therefore deny certification to this project.
The LDEQ is required by statute to ensure that the proposed discharge complies with the toxicity standards set forth in LAC:33:IX1113. Water quality standards for toxic substances are set forth in LAC 33:IX.1113(B)(5) which states: ”Toxic Substances Shall not be present in quantities that alone or in combination will be toxic to plant or animal life.” Although the proposed airport includes plans for petroleum storage and industrial development, the applicant fails to provide any information about the content of the water to be discharged. The LDEQ has a mandatory duty to ensure that any discharge complies with toxicity standards.
The presence of landfills in the area to be dredged and filled is of particular concern. The area to the east of the current airport has long been used as both a formal an informal dumpsite. The site has recently become a dump for unregulated, illegal tire dumping. Two of the landfills which are known to be located in this area are on the LDEQ’s list of potential Superfund sites, and the United State Environmental Protection Agency has also determined that these sites are known or suspected to contain hazardous waste.
The LDEQ cannot certify any activity on or near this location unless a more detailed information about these dumps is obtained. Further, the LDEQ should require at a minimum that the applicant submit a detailed plan for ensuring water quality while dredging, filling, and building on these sites and during the operation phase of this project. The contents of these dump sites must be investigated and the potential to degrade water quality assessed before any certification is granted.
Louisiana’s water quality standards include specific requirements for regulating water discharge temperature and turbidity control. The information which the applicant submitted to the LDEQ fails to demonstrate these requirements would be met. An extreme increase in turbidity can be expected due to construction activities associated with building the airport and related structures as well as relocating the railroad and Interstate 310. Runoff from the paved project area further threatens to change temperature levels in neighboring waterbodies. Because of the massive scope of the project, harm would occur not only to the adjacent receiving waters but also to wetlands and open water throughout the Lake Pontchartrain basin.
The proposed plan involves significant environmental, social, and economic issues. The environmental impacts outlined by the applicant are tremendous in scope. Further, any additional impacts from airport development would greatly effect the environment and quality of life in the New Orleans area. Local concern- including strong opposition from parish government- mandates a public hearing be held to hear the views on citizens who will be affected by the project. Therefore, Save Our Wetlands, Gulf Restoration Network, Louisiana Audubon Council, and Sierra Club- New Orleans Group request that the LDEQ hold a public hearing on this application and ask to be notified in writing when this hearing is scheduled.
La. R.S. 30:2018 (A) requires that an applicant seeking a permit which would authorize the “treatment, storage, or disposal of hazardous wastes, the disposal of solid wastes, or the discharge of water pollutants” submit an environmental assessment as part of the application. The information submitted to the LDEQ by the applicant demonstrates that the proposed project would create a major source of water pollution. In addition, the certification would authorize the applicant dredge, fill, and build in an area known to include landfills and suspected to include hazardous waste. Section (B) sets out the standards required by this document:
The applicant, St. Charles International Airport LLC, has failed to submit this required document to the LDEQ. Therefore, the LDEQ should deny certification because the applicant has failed to meet the statutory requirements of La. R.S. 30:2018 (A).
La.R.S. 30:2018(C) requires that the LDEQ hold a separate public hearing on this assessment if requested. Save Our Wetlands specifically requests that the LDEQ hold a separate public hearing on the Environmental Assessment required by statute. The LDEQ must allow citizens of St. Charles Parish and other area residents to comment on the environmental, social, and economic issues raised by the proposed international airport. Strong opposition from local government, including the parish council resolution attached to these comments, also merits consideration from the LDEQ.
The applicant’s plan includes removing storm water and drainage from the proposed airport and adjacent industrial facilities and discharging this water into Bayou LaBranche. Under LAC:33:IX:2341, the project requires a permit as a point source of pollution. The area drained would exceed 8,000 acres and would include industrial facilities, petroleum storage, cargo handling and storage, aircraft cleaning and maintenance, and intermodal (rail, road, and marine) terminals. An LPDES permit is also required for the construction phase of this project, pursuant to LAC:33:IX:2341.B.15.A.
The proposed new airport threatens to destroy a highly productive natural resource and to damage water quality throughout the Lake Pontchartrain basin. Further impacts, both cumulative and direct, from increased sprawl, disruption of transportation routes, the forced removal and relocation of area residents, noise pollution, and air pollution would create additional source of environmental harm throughout greater New Orleans. The information contained in the application for certification indicates that the proposed project- for both the construction and operation phases of the plan- would violate state water quality standards. The LDEQ should deny this certification because the application fails to demonstrate compliance with state water quality criteria, Louisiana’s antidegradation regulations, or the designated uses for the affected waterbodies.
Respectfully submitted:
James A. Johnston, Law Student
Elizabeth Teel
Counsel for Save Our Wetlands, Louisiana Audubon Council, Gulf Restoration Network, and Sierra Club- New Orleans Group