This paragraph sums it up:
The project’s stated purpose in the EA is “economic development,” as part of the Governor’s Road Improvement Program created in the 1980s. See EA at 4. The NEPA regulations promulgated by the Council on Environmental Quality (“CEQ”) require agencies to examine the indirect impacts of projects — those growth-inducing impacts caused by a project, such as changes in land use and development patterns. 40 C.F.R. Â§ 1508.8(b). Yet over and over, when purporting to examine the project’s potential for indirect impacts on various natural resources, the EA repeats, “The proposed project is not expected to precipitate substantial development along the corridor.”
Other questions include, why not use a narrower median? Why not leave trees on the median?
Below is the full text of the letter drafted by the Southern Environmental Law Center to the Army Corps of Engineers that WWALS joined in signing with Satilla Riverkeeper, Save Our Suwannee, St Marys Earthkeepers, and Silentdisaster.org, followed by images of the attachment; see also the PDF. This widening project is not in WWALS watersheds: it is in the Upper Suwannee, which is Save Our Suwannee territory, and in the Satilla River watershed, which is Satilla Riverkeeper territory. However, WWALS may see similar issues with other projects in our territory, and our neighboring watershed organizations asked for our assistance, so the WWALS Executive Committee approved WWALS signing this letter.
Southern Environmental Law Center
Southern Environmental Law Center The Candler Building
127 Peachtree Street NE, Suite 605
Atlanta, GA 30303-1840
May 28, 2015
Via Electronic Mail
U.S. Army Corps of Engineers, Savannah District
Attn: Mr. William M. Rutlin
100 West Oglethorpe Ave.
Savannah, GA 31401-3640
RE: SAS-2014-00862, Proposed U.S. Highway 84 Widening
Dear Mr. Rutlin:
The Southern Environmental Law Center submits the following comments concerning the above-referenced Section 404 permit application on behalf of Satilla Riverkeeper, Save Our Suwannee, WWALS Watershed Coalition, St. Marys Earthkeepers, and Silentdisaster.org. This application, submitted by the Georgia Department of Transportation (“GDOT”), is for a proposed widening of U.S. Highway 84 in Ware and Clinch Counties, Georgia. The Joint Public Notice was published on April 28, 2015.
This project will be crossing through sensitive headwater streams and wetlands in both the Satilla and Suwannee River watersheds, including waterways that feed into the Okefenokee National Wildlife Refuge. Up to 25% of the streams feeding the swamp have already been altered in some fashion, either through filling, channelization, sedimentation, or other pollution. These alterations result in loss of habitat, decreased habitat diversity, water chemistry changes, lower stream levels, lower water table levels, changes in water temperature, increased turbidity, and changes in fish populations. Furthermore, the project will come very close to some known contaminated sites, including Atlanta Gas Light and CSX RiceYard. In order to anticipate and minimize community impacts from contaminated soil and water movement, the applicant should conduct soil, surface, and groundwater testing for the potential for volatile compounds and other hazardous materials. Any air quality impacts from the new road to community resources such as schools should also be studied, anticipated, and minimized.
Because of its significant environmental impacts to these waterways, the Corps of Engineers or GDOT should prepare an Environmental Impact Statement (“EIS”) before taking action on this permit application. Furthermore, the mitigation credits for this project have been underestimated and need to be increased to fairly and accurately account for the project’s impacts.
The Need for an EIS
The National Environmental Policy Act (“NEPA”) requires an EIS for any major federal action significantly affecting the human environment. 42 U.S.C. Â§Â§ 4321 et seq. On July 12, 2011, the Federal Highway Administration (“FHWA”) released an Environmental Assessment (“EA”) and Finding of No Significant Impact (“FONSI”) for the U.S. 84 widening project. In the FONSI, FHWA incorrectly concluded that this project would have inconsequential impacts on the environment, and that therefore no EIS would be prepared. Looking at the impacts of this project on waterways and wetlands alone, this EA falls far short of passing legal muster under NEPA and its regulations.
As a starting point, FHWA’s NEPA regulations presume that a new four-lane roadway is the type of project that requires an EIS. See 23 C.F.R. Â§ 771.115(a)(2). While U.S. 84 will be widened along its existing alignment for much of the project’s 24.4-mile length, the EA notes that 6.2 miles of the project will be new bypasses or other new roadway alignments. A 6.2-mile stretch of new four-lane highway is significant and deserves a thorough vetting through an EIS, in accordance with FHWA regulations. Furthermore, even the other portions of this road project will entail constructing new two-lane roads separated by medians of varying widths, which will themselves impact waterways and wetlands.
The project’s stated purpose in the EA is “economic development,” as part of the Governor’s Road Improvement Program created in the 1980s. See EA at 4. The NEPA regulations promulgated by the Council on Environmental Quality (“CEQ”) require agencies to examine the indirect impacts of projects — those growth-inducing impacts caused by a project, such as changes in land use and development patterns. 40 C.F.R. Â§ 1508.8(b). Yet over and over, when purporting to examine the project’s potential for indirect impacts on various natural resources, the EA repeats, “The proposed project is not expected to precipitate substantial development along the corridor.” See, e.g., EA at 65, 98. Given that the project’s stated purpose is economic development, this either means that the project is not needed, or that the indirect impacts analysis is inadequate.
The cumulative impacts of this project on waterways and wetlands have yet to be studied. The CEQ’s NEPA regulations define “cumulative impact” as 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. 40 C.F.R. Â§ 1508.7. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. Id. The Section 404(b)(1) Guidelines that govern Corps permitting decisions contain a similar definition of cumulative impacts:
Cumulative impacts are the changes in an aquatic ecosystem that are attributable to the collective effect of a number of individual discharges of dredged or fill material. Although the impact of a particular discharge may constitute a minor change in itself, the cumulative effect of numerous such piecemeal changes can result in a major impairment of the water resources and interfere with the productivity and water quality of existing aquatic ecosystems.
40 C.F.R. Â§ 230.11(g)(1).
The CEQ guidance sets forth a 13 step procedure for performing a cumulative impacts analysis.1 Various Departments of Transportation, such as Washington State, California, and Texas have modified the CEQ procedure for highway projects.2 Under the Washington State Department of Transportation procedure, for example, an applicant performing a cumulative impact analysis is supposed to take the following eight steps: “1) identify the resources that may have cumulative impacts to consider in the analysis; 2) define the study area and timeframe for each affected resource; 3) describe the current health and historical context for each; 4) identify direct and the indirect impacts that may contribute to a cumulative impacts; 5) identify other historic, current, reasonably foreseeable actions that may affect resources; 6) assess potential cumulative impacts to each resource; determine magnitude and significance; 7) report the results; and 8) assess and discuss potential mitigation issues for all adverse impacts.” 3
Although GDOT and FHWA were not bound to adhere to this precise 8-step process, they were bound to perform a comparable analysis that would yield a measurable outcome. They failed to do so. Indeed, they did not even identify the study area or the current status of wetlands and streams in that area. Nor did they make any attempt to describe whether development was anticipated in the study area that could impact the resources at issue. As the Washington State cumulative impact guidance provides, they could have examined land use planning documents, building permits records, or spoken with city leaders in the area to obtain such information.4 Before this project advances, the applicant or the Corps must complete an adequate cumulative impact analysis.
The Corps’s Reliance on the 2011 EA would be improper for this project. The EA reduces the project’s indirect and cumulative impacts on waterways and wetlands to a single paragraph on page 97. Here, FHWA notes that these impacts “could occur” but provides no information on the likely nature or extent of such impacts. In order to appreciate the total impacts of this road on the Satilla, Suwannee and Okefenokee systems, the Corps must look at the watersheds in totality and estimate the summation of incremental stresses on these systems, including other recently completed or anticipated road projects and other major fill projects. Because of this project’s potential to produce significant cumulative impacts on wetlands, including water quality, current patterns, nutrient filtration, and habitat value, an EIS must be prepared to satisfy the requirements of NEPA.
W/L 45 provides a clear example of the importance of studying cumulative impacts. This is a large wetland dominated by cypress trees with standing water present. It is currently bounded by the existing U.S. 84 to the north and the railroad to the south. The new road would cut right through the middle, essentially eliminating this wetland’s functionality as a habitat. Since its examination of cumulative impacts is absent, the EA’s discussion of impacts to this resource does not account for this likely result. See EA at 91.
Properly anticipating and accounting for cumulative impacts is important not just for purposes of fulfilling NEPA, but also for the purpose of providing for sufficient mitigation for any unavoidable impacts (direct, indirect or cumulative) that occur as a result of this project. As explained below, the mitigation worksheet submitted with the Section 404 permit application already underestimates the impacts and mitigation needed for this project. Given the scope of this project and the numerous legal deficiencies in the EA/FONSI, an EIS is the best way to ensure that all impacts are avoided, minimized, or mitigated to the maximum extent practicable.
Mitigation for this project needs to be improved, particularly considering that the permit applicant has misapplied the “preventability” factor in calculating the credits, resulting in an underestimation of credits needed. The preventability factor is one of the six factors used in the Savannah District’s standard operating procedures (“SOP”) to calculate the appropriate number of mitigation credits for a proposed project.5 The other factors are “dominant effect,” “duration of effect,” “existing condition,” “lost kind,” and “rarity ranking.” In completing the SOP mitigation worksheets, the applicant assigned a value to each factor for each wetland that would be impacted by the proposed project. The values were then combined. Because the applicant assigned an incorrect value for preventability, it miscalculated the amount of credits required to offset the impacts for the entire proposed project. It is a significant error amounting to a shortage of approximately 70 credits.
The SOP defines “preventability” as an “evaluation of the degree to which the adverse effects could be prevented.” 6 Preventability can be “high,” “moderate,” or “low.” According to the SOP, “[l]ow means there are no known alternatives which satisfy the purpose, are practicable, and are less damaging;” “[m]oderate means there may be alternatives but it is unclear if they satisfy the project purpose or if they are practicable”; and “[h]igh means there may be practicable, less damaging alternatives that satisfy the purpose of the project.” 7
In calculating the mitigation credits for the project, the applicant assigned a Low (0.5) preventability value to every wetland impacted. In other words, the applicant was contending that it could find no known less damaging practicable alternatives.8 Considering that the purpose of the project was to build a four-lane divided highway between Homerville and Waycross, Georgia, there would be, by its linear nature, considerable flexibility in the route that could have provided alternatives that avoided or lessened the impact to wetlands. For example, in certain areas with large wetlands the applicant has proposed a 32 foot median instead of a 44 foot median. Why not use a 32 foot or smaller median the entire route?
In many other sections of the route all the trees in the median will be cleared. A less damaging practicable alternative in those areas would be to leave the trees in the median like many divided highways in Georgia and in other states. If the medians proposed are too narrow to accommodate the trees and provide safe passage, then the applicant could widen the medians in the treed sections.
It is because there are alternatives like these that the Low (0.5) preventability factor is inappropriate. The applicant should have used the Moderate (1.0) factor instead. The Moderate factor, as provided above, is to be used when “there may be alternatives but it is unclear if they satisfy the project purpose or if they are practicable.”9 Because there “may be alternatives” to the route chosen that could impact fewer wetlands, it was inappropriate for the applicant to use the Low preventability factor instead of the Moderate preventability factor.
The result is significant. By using the correct factor for each of the wetlands that would be impacted, the number of mitigation credits increases from 934.95 to 1002.32 credits. The applicant must be required to purchase the additional credits to offset the wetland impacts.
Page 96 of the EA states that because the proposed project designs call for 11 of the 13 streams along the route to be bridged instead of placed in culverts, only the two culverted streams require mitigation. This is not true, considering that the bridged streams will also suffer impacts. As the Corps Savannah District’s stream mitigation worksheets show, streams that are shaded or armored must be mitigated. Regardless of how high a bridge might be above a stream, it still shades the stream. Moreover, typically streams are armored along the shoreline underneath bridges. This armoring must be taken into account and mitigated.
Thank you for the opportunity to comment on this project. Please notify us as to the Corps’ ultimate decision on this permit application, and feel free to contact me with any questions about these comments.
Gilbert B. Rogers
cc: Eric Somerville, U.S. Environmental Protection Agency
Hiral Patel, Georgia Department of Transportation
1 Council on Environmental Quality, Considering Cumulative Effects Under the National Environmental Policy Act (1997).
2 See, e.g., Washington State Department of Transportation, Guidance on Preparing Cumulative Impact Analyses 21 (Feb. 2008).
3 Id. at 5.
4 Id. at 3.
5 Savannah District, Corps of Engineers, Standard Operating Procedure, Compensatory Mitigation, March 2004 (Attachment A).
6 Id. at Attachment A, 4.
9 Id. (emphasis added).