[House Hearing, 105 Congress]
[From the U.S. Government Publishing Office]
WETLANDS: COMMUNITY AND INDIVIDUAL RIGHTS V. UNCHECKED GOVERNMENT POWER
=======================================================================
HEARING
before the
SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH,
NATURAL RESOURCES, AND REGULATORY AFFAIRS
of the
COMMITTEE ON GOVERNMENT
REFORM AND OVERSIGHT
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
FIRST SESSION
__________
JUNE 16, 1997
__________
Serial No. 105-64
__________
Printed for the use of the Committee on Government Reform and Oversight
U. S. GOVERNMENT PRINTING OFFICE
45-478 WASHINGTON : 1998
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
J. DENNIS HASTERT, Illinois TOM LANTOS, California
CONSTANCE A. MORELLA, Maryland ROBERT E. WISE, Jr., West Virginia
CHRISTOPHER SHAYS, Connecticut MAJOR R. OWENS, New York
STEVEN SCHIFF, New Mexico EDOLPHUS TOWNS, New York
CHRISTOPHER COX, California PAUL E. KANJORSKI, Pennsylvania
ILEANA ROS-LEHTINEN, Florida GARY A. CONDIT, California
JOHN M. McHUGH, New York CAROLYN B. MALONEY, New York
STEPHEN HORN, California THOMAS M. BARRETT, Wisconsin
JOHN L. MICA, Florida ELEANOR HOLMES NORTON, Washington,
THOMAS M. DAVIS, Virginia DC
DAVID M. McINTOSH, Indiana CHAKA FATTAH, Pennsylvania
MARK E. SOUDER, Indiana ELIJAH E. CUMMINGS, Maryland
JOE SCARBOROUGH, Florida DENNIS J. KUCINICH, Ohio
JOHN B. SHADEGG, Arizona ROD R. BLAGOJEVICH, Illinois
STEVEN C. LaTOURETTE, Ohio DANNY K. DAVIS, Illinois
MARSHALL ``MARK'' SANFORD, South JOHN F. TIERNEY, Massachusetts
Carolina JIM TURNER, Texas
JOHN E. SUNUNU, New Hampshire THOMAS H. ALLEN, Maine
PETE SESSIONS, Texas HAROLD E. FORD, Jr., Tennessee
MICHAEL PAPPAS, New Jersey ------
VINCE SNOWBARGER, Kansas BERNARD SANDERS, Vermont
BOB BARR, Georgia (Independent)
ROB PORTMAN, Ohio
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
Judith McCoy, Chief Clerk
Phil Schiliro, Minority Staff Director
Subcommittee on National Economic Growth, Natural Resources, and
Regulatory Affairs
DAVID MCINTOSH, Indiana, Chairman
JOHN E. SUNUNU, BERNARD SANDERS, Vermont
J. DENNIS HASTERT, Illinois JOHN F. TIERNEY, Massachusetts
JOE SCARBOROUGH, Florida JIM TURNER, Texas
JOHN B. SHADEGG, Arizona PAUL E. KANJORSKI, Pennsylvania
STEVEN C. LaTOURETTE, Ohio GARY A. CONDIT, California
VINCE SNOWBARGER, Kansas DENNIS J. KUCINICH, Ohio
BOB BARR, Georgia CHAKA FATTAH, Pennsylvania
ROB PORTMAN, Ohio
Ex Officio
DAN BURTON, Indiana HENRY A. WAXMAN, California
Mildred Webber, Staff Director
Karen Barnes, Professional Staff Member
Cindi Stamm, Clerk
C O N T E N T S
----------
Page
Hearing held on June 16, 1997.................................... 1
Statement of:
Congleton, Doug, president, Protect West Cobb................ 104
Croy, Jim, director, Cobb County Department of
Transportation; John Wiles, representative, Georgia House
of Representatives; Chris McLean, resident, West Sandtown
Community; and David Parr, resident, West Sandtown
Community.................................................. 4
Dabbs, Robert E., developer, Dabbs Construction Co.; Grady
Brown, cattle rancher, accompanied by Steve Woodall; and
Wayne Shackleford, commissioner, Georgia Department of
Transportation............................................. 29
Groszmann, Glynn, Sierra Club................................ 99
Lester, Laura, West Cobb Community Council................... 87
McCuskey, Dr. Sue, environmental consultant.................. 97
Morgan, George............................................... 95
Smith, Colonel Grant M., District Commander, U.S. Army Corps
of Engineers, accompanied by Bill Hough, district counsel;
and Necholus Ogden, Chief of Regulatory, U.S. Army Corps of
Engineers.................................................. 59
Weismann, Dr. Jay............................................ 106
Letters, statements, etc., submitted for the record by:
Dabbs, Robert E., developer, Dabbs Construction Co., prepared
statement of............................................... 34
Groszmann, Glynn, Sierra Club, prepared statement of......... 101
Lester, Laura, West Cobb Community Council, prepared
statement of............................................... 91
McIntosh, Hon. David M., a Representative in Congress from
the State of Indiana:
Letter from Mitch King................................... 78
Prepared statement of.................................... 18
McLean, Chris, resident, West Sandtown Community, prepared
statement of............................................... 9
Parr, David, resident, West Sandtown Community, prepared
statement of............................................... 14
Shackleford, Wayne, commissioner, Georgia Department of
Transportation, prepared statement of...................... 42
Smith, Colonel Grant M., District Commander, U.S. Army Corps
of Engineers, prepared statement of........................ 63
WETLANDS: COMMUNITY AND INDIVIDUAL RIGHTS V. UNCHECKED GOVERNMENT POWER
----------
MONDAY, JUNE 16, 1997
House of Representatives,
Subcommittee on National Economic Growth, Natural
Resources, and Regulatory Affairs,
Committee on Government Reform and Oversight,
Marietta, GA.
The subcommittee met, pursuant to notice, at 1:14 p.m., in
the Cobb County Commission meeting room, Cobb County Government
Center, 100 Cherokee Street, Marietta, GA, Hon. David McIntosh
(chairman of the subcommittee) presiding.
Present: Representatives McIntosh and Barr.
Staff present: Karen Barnes, professional staff member; and
Cindi Stamm, clerk.
Mr. Barr [presiding]. I would like to welcome everybody
here today to these hearings by the Subcommittee on National
Economic Growth, Natural Resources, and Regulatory Affairs of
the Committee on Government Reform and Oversight of the U.S.
Congress.
The hearing will be Chaired by Representative Dave McIntosh
from Indiana, who is the chairman of the subcommittee. I am
honored to serve as a member of the committee and this
particular subcommittee with Chairman McIntosh and other
Members.
The genesis of this hearing has both a general reason and a
specific reason. Generally what we are trying to do in this
Congress is hold as many hearings as is feasible, given the
time constraints and the expenses involved, around the country
to allow our citizens from all walks of life to participate
more freely and more easily in the oversight processes of the
Congress.
When I spoke with Chairman McIntosh several months ago and
he indicated that they were interested in holding hearings in
districts around the country, I asked him if he would be able
to schedule some hearings here. I think this is the first time
that we have had hearings in the Seventh District by a
congressional subcommittee or committee, and specifically also
in Cobb County. Chairman McIntosh indicated that he would be
very, very happy to do so and asked for input as to what an
appropriate subject matter would be.
After talking with a number of constituents from local
government, from the business community and private citizens,
we determined that one of the most relevant topics, one of the
most timely topics that we could do some work on and really
provide to Chairman McIntosh and the rest of the committee some
important insights, would be to focus on the wetlands
regulatory affairs.
Wetlands affect virtually everybody in the country, whether
you live on or near wetlands or not, because of the cost of the
regulation, the sweep of the regulations and ultimately, the
cost to the taxpayers of this country.
What we will be doing today is hearing from a number of
individuals, private landowners and developers who are
interested in building subdivisions and other developments in
our communities in the Seventh District. We will be hearing
from individuals concerned directly with the transportation
needs of our citizens. The State Department of Transportation
Commissioner Wayne Shackleford will be speaking. We have on our
first panel Mr. Jim Croy from the Cobb County Department of
Transportation. We will be hearing from State Representative
John Wiles as well as representatives from the Corps of
Engineers. It is the Corps of Engineers which has the primary
jurisdictional responsibility for implementing and enforcing
wetlands regulations, and they will be speaking with us today
to answer any questions and provide information on those areas
in which they have been active.
The purpose ultimately of these hearings is two-fold. One,
to bring to the public's attention a better understanding of
both the shortcomings as well as the benefits of the existing
wetlands regulations programs, policies and regulations, to
highlight those areas where there have been problems, either
problems with miscommunications, problems with overly
restrictive or overly confusing regulations, time delays, costs
involved; and ultimately the purpose of that is to identify
areas in our Federal regulations, and if necessary in our
Federal wetlands related laws, that can be amended, so these
work better.
When we talk about working better, what we mean, at least
what I mean, is that all of the different interests are
balanced properly so that no one side of the equation
overshadows everything else. We want to make sure that true
wetlands are properly protected as a resource for all of our
citizens to continue to enjoy and so that we all benefit from
the very positive results of having proper wetlands throughout
our country and not diminishing those important natural
resources. But we also want to be mindful of the fact that
whenever we do have these Federal regulations, there are costs
involved, and those costs are ultimately borne by the taxpayers
of this country.
And we want to make sure that the regulations in this area,
as well as other regulatory areas, in which the Government is
involved--we want to make sure that the different interests are
balanced; the interests of the taxpayers, the interests of our
local governments which have to ultimately provide the services
that sometimes are brought to a standstill by Federal
regulations. We want to make sure that those business people in
our communities who have a responsibility to their employees
and to the consumers in our communities to provide the jobs and
the amenities such as housing, transportation, and businesses
that the citizens demand and have a right to expect. We also
want to make sure that the environmental concerns are properly
reflected and weighed in the equation.
So again, to recap, what we are trying to do here in these
hearings and in others that we will be having throughout the
country and some in Washington as well, is to look generally at
these problems, to identify those areas where we can do a
better job of either enforcing or drafting our regulations and
our laws and using examples such as we will be seeing today and
hearing about today, to highlight, again both those areas in
which these regulations are working properly as well as those
instances where we can be doing a better job.
We will have three different panels today. We will try and
stay on a fairly rigorous timeframe because we do have a lot of
witnesses and we do want to leave some time at the end of the
hearing today for something that Chairman McIntosh believes is
very important in all of our hearings whenever possible, and
that is to provide a time period for public comment.
We will be swearing in each of our three panels at the
beginning of each one of those panels. The written remarks for
any of the members of the panels who wish to submit them, will
in fact be printed in their entirety in the record, so even if
you are not able to make it through your entire written
presentation, please rest assured that all of the comments will
appear fully in the record of these hearings and be available
for other members of the public, for the interest groups, as
well as the general public, when these hearings are published
later on this year.
Each panelist will be given approximately 5 minutes in
which to make their opening remarks. We will just proceed in
the order. Then each member of the subcommittee; namely, myself
and Mr. McIntosh, will have 5 minutes each to ask questions of
each panel. And of course, these proceedings are being
televised, so we would ask everybody kindly to speak up.
And with that in mind as preliminary thoughts, let me
invite and ask each member of panel No. 1 to stand and be sworn
in and then I will introduce the members of the panel and we
will proceed with the remarks. If each panelist would stand and
raise their right hands.
[Witnesses sworn.]
Mr. Barr. Thank you. Each witness has responded in the
affirmative.
The first panel, we will be hearing from four individuals
who have a very significant understanding of different aspects
of wetlands regulation. I would like to introduce those members
of this panel that we will be hearing from.
Appearing for Cobb County will be Jim Croy, our director,
here in Cobb County, for the Cobb County Department of
Transportation. Jim is appearing here in his capacity as
director of the Department of Transportation in lieu of
Chairman Bill Byrne. Jim, we are very happy to have you here
today.
Also on this panel is the Honorable John Wiles, one of our
State representatives who represents portions of Cobb County in
the State House of Representatives, and has done a great deal
of work, both in his private capacity as well as in his work as
a State legislator, looking at the costs of regulations and
again, doing--what we are trying to do at the Federal level, he
is trying to do at the State level, and that is to bring a
proper balance to these regulations. Representative Wiles, we
appreciate very much your appearing here today with us.
We also have two individuals--we have Chris McLean from the
West Sandtown community and Mr. McLean is intimately familiar
with certain aspects of Federal wetlands regulations. We
appreciate your appearing here today to share your experiences
and answer any questions as they might relate to problems that
you have run into. Mr. McLean, we appreciate your being with us
today.
And finally, we have Mr. David Parr, also with the West
Sandtown community. He is a resident that in his capacity has
also come into contact with Federal wetlands regulations and we
appreciate your taking time to share your experiences with us
here today, both you and Mr. McLean I think have interesting
stories to tell that are relevant, both to us in the Government
here, as well as to the population generally, and we appreciate
your appearing.
With that as preliminary comments, what I would like to do
is to begin the presentations with Mr. Jim Croy, the Cobb
County Department of Transportation head.
STATEMENTS OF JIM CROY, DIRECTOR, COBB COUNTY DEPARTMENT OF
TRANSPORTATION; JOHN WILES, REPRESENTATIVE, GEORGIA HOUSE OF
REPRESENTATIVES; CHRIS MCLEAN, RESIDENT, WEST SANDTOWN
COMMUNITY; AND DAVID PARR, RESIDENT, WEST SANDTOWN COMMUNITY
Mr. Croy. Good afternoon, Representative Barr.
I am Jim Croy, the director of the Cobb County Department
of Transportation. I am here today on behalf of Chairman Byrne,
our Board of Commissioners and our county manager, Mr. David
Hankston, to provide a statement for Cobb County.
It is the responsibility of the Cobb County Department of
Transportation to plan, manage and implement our transportation
improvement program. In Cobb, that program since 1985, will
total approximately $960 million worth of road improvements
that will be invested in our county through local funds. This
investment is comprised of over 540 scheduled projects, many of
which will require and have required permitting under Section
404 of the Clean Water Act.
On reviewing our project history, I would just like to make
the following observations.
1. In the event that the Corps of Engineers in reviewing an
application denies the permit, we have seen there is no formal
appeal process within the system for the further review and
consideration of that project and a discussion of the issues as
it relates to the denial of the permit.
2. The applicant assembles--in this case Cobb County--we
assemble a team of professionals from the various different
fields to prepare our technical area evaluations. These are
evaluations such as traffic, transportation planning,
environmental, constructability, hydrology, structures and just
standard roadway design for the project. And typically these
are reviewed by the Corps and many times we feel we have not
been able to have that degree of discussion about some of these
different expertise that certainly I am not a professional
expert in all the issues and we need to have some degree of
ability to discuss these at a technical level.
3. There are concerns regarding the coordination of the
permitting process as it relates to the Corps of Engineers and
the other regulatory agencies. I give--for example, we have one
project which we have reached agreement on but it required 18
months to develop consensus between the Corps of Engineers and
the Georgia State Historic Preservation Office over a
Memorandum of Agreement over a historic structure on one of our
projects, the Powder Springs Parkway. The same situation
existed in time for another road project here in Marietta.
In looking at the review criteria, I would like to make a
couple of comments as it relates to maybe some of the original
direction of the NEPA 1969 directive.
It appears at times that the review process does not regard
the definition or purpose in regard to the original direction
of NEPA. Projects were brought forward that, in our mind,
fulfill the socio-economic and other requirements of present
and future generations of Americans and we have every practical
means and measures incorporated into the design of the project
that is sensitive to the critical importance of restoring and
maintaining environmental quality to the overall welfare and
development of man. And those are quotes out of NEPA.
I think our projects in Cobb County as we bring them
forward, we have tried to look at that balance. I think
sometimes in looking at the balance of environment, community
and transportation, many times I think due to the current
regulations, the scale is tipped toward environmental in many
instances instead of balance.
It appears that at times the review process does not
equally balance, as I said, impacts both positive and negative
between environmental and human issues as these projects are
developed, and to create and maintain conditions under which
man and nature exist in productive harmony. Again, a quote from
the 1969 NEPA documents.
Transportation improvements are identified to address in
Cobb County our existing and future travel demands. We have a
process of modeling and prediction and developing a system of
transportation improvements throughout our whole county that is
interconnected. Our region, the Atlanta region, with which Cobb
is a portion of, has continued to grow and develop irrespective
of road and other modal systems that are being put in place.
The notion that no road equals no development has been
historically incorrect. As there are no controls that have been
incorporated, private development will still have the potential
of impacts to our stream quality and wetlands even under the
no-build scenario. I think this part of the no-build scenario
certainly needs to be incorporated into the process.
And finally, it would appear at times, especially in the
past, that the lack of consistency for approval of techniques
used in the mitigation impacts our projects. At times it would
appear that the methodology used for one project has been
unacceptable in another project.
Also, the methodology used to get to the point of
discussions of mitigation appears many times not consistent.
For example, the discussion of traffic studies and corridor
studies are very difficult to get past that point, to get to
the actual discussions of the actual alignment. Again, I think
it gets back to the point of bringing each of the different
studies together to reach consensus prior to the alignment
issue.
On behalf of Cobb County, I would like to thank the
committee for the opportunity to testify today and will be
available for any questions you might have.
Mr. Barr. Thank you, Jim.
Representative Wiles, if you please now would make whatever
opening remarks you would like to for 5 minutes and then as
soon as we finish with the panel, we will have questions for
all of you.
Mr. Wiles. Thank you, Representative Barr.
It is indeed a pleasure to be before you and members of the
committee to testify today about wetlands. I am a State
representative, I represent the 34th District, which is west
Cobb, Kennesaw and west Marietta. And importantly, I am also in
private life a real estate attorney.
I appreciate the opportunity to come today and talk to you
about the problems that face my constituents and by extension
your constituents. As a result of the Corps' delay, delay and
delay on the many road projects of west Cobb, our constituents
sit daily in bumper to bumper traffic, which affects the
quality of life, and to me, it is just--the belief if you do
not build a road, there will be no development and you and I
both know, and members of the committee know that development
is here. Cobb County has addressed it by taxing themselves, the
citizens have agreed to tax themselves to build these roads,
but it appears the Federal Government through the Corps of
Engineers has said no, we do not want to let you build these
roads that the community wants.
In my opinion, there are three main issues with the
wetlands legislation. I have talked to many of my constituents
and many of my clients and one of the problems is trying to
figure out what a wetland is. It depends where you are and it
depends who is interpreting. One person's wetlands is another
person's dry land. One of the things that was reported to me in
one situation in Cobb County, there was a wet area, the Cobb
County Department of Transportation went out and surveyed the
water, checked the water, turns out the water was chlorinated.
That means there was a water main leak. They found the water
main leak. To this day, the Corps of Engineers considers that
area that was wet because of a water main leak, wetlands. That
is ridiculous. If it is chlorinated water, it is certainly not
wetlands.
What I think is there needs to be some process available to
identify what wetlands is so that if a person goes in to
develop their land, to farm their land, that they can turn to a
resource and say yes, this is wetlands and now the process is
you develop the land and then, in essence the Corps of
Engineers through the traffic cop comes out and says you were
speeding and you say well I did not know I was speeding, I did
not know it was wetlands. They say, oh, well, you should have
known. You should have known by the flora or the content of the
water or whatever the plant life is.
The other thing is what seems to me this arbitrariness of
the Corps of Engineers--we are the Federal Government, we are
right and you are wrong. And you are the constituents in Cobb
County, my constituents, your constituents, and they choose to
build the road, tax themselves, do not seek Federal funds, have
public hearings, come up with a road plan that everyone agrees
to, the Federal Government through a bureaucrat down in
Savannah says no, you cannot build this road. And then when we
say well we want to build the road, the only recourse is to go
to the Federal courts. And we have all heard about the backlog
in the Federal courts and how long and of course how expensive.
That is the tax on the constituents and the citizens of Cobb
County because they have to hire a good law firm to go down in
Federal court. Why is there not a procedure within the Corps of
Engineers, an Administrative Procedures Act procedure, a short
circuit so we do not have to go to Federal courts to resolve
these disputes.
And the third thing is--and this to me is the most
important--why are we talking about this as a Federal issue. I
understand it is the Federal waters, I understand it is the
environment. But we at the State level, me at the State House
and my fellow members of the General Assembly, the local
government. We are just as concerned about the environment,
perhaps more concerned, than the Federal Government is. Why can
this issue not be devolved to the States? Why are we regulating
in Washington, DC, conduct in west Cobb County? That is the
challenge I put to you as a Congressman and to the entire 105th
Congress--return this back to us. Trust us at the State level.
The 10th amendment says that the power should be reserved to
the State. This should be our area, not the Federal
Government's area, and I ask that you would consider and
Members of the Congress would consider returning this back to
the State level.
When I go to the people that live around Dowell Elementary
and tell them that a Federal bureaucrat has said there is going
to be a four-lane road right by their elementary school, it is
really hard for me to explain that to them. When the county
representative who has been elected to represent, where the
citizens have decided on a road path, and instead a Federal
bureaucrat tells them that they are going to put a four-lane by
their school. There is just no justification for that. So I
would urge the Congress to consider devolving this back to the
States and let us handle it at the local level. At the State
level, I would like to send it back down to the county level. I
do not want to be a mini-Federal Government and I do not think
we should be. I think we can handle this at the local level.
I thank you, Mr. Congressman. If you have any questions, I
will gladly address them.
Mr. Barr. Thank you, Representative Wiles. We appreciate
not only your testimony today but your work in behalf of the
citizens in your district and indeed throughout the entire
State of Georgia.
Mr. McLean, if you would provide us some insights in your
opening testimony and then we will have questions for the
entire panel.
Mr. McLean. Thank you, Representative Barr. I appreciate
the opportunity to speak here.
Ladies and gentlemen, my name is Chris McLean. I am a
resident of west Cobb County and a businessman in the
community. And the issue that I want to testify about is one
that Representative Wiles spoke of, which is the four-lane
highway going in front of Dowell Elementary, which is a route
that completes a road called the Cobb Loop, if you will. I
choose, just in the essence of time, just to read my testimony
which I printed out and provided copies.
The Loop project is one that will be completed. Common
sense should direct anybody's thinking to the completion of the
project. Any further delay will cause more people to be
negatively affected, such as those at Pennington Subdivision.
If no road is built, the increasing traffic will find its way
down existing roads and cause injuries and fatalities.
The routing of the Loop has been focused on West Sandtown
Road. Three years ago, it became obvious to the majority of
west Cobb citizens that Noses Creek would be the correct
routing for the Loop. Now after untold sums have been spent of
citizens' money to ensure the proper routing of the Loop, West
Sandtown Road in particular is now again in jeopardy.
If West Sandtown is utilized it adversely affects 2,100
residents and hundreds of school children at the Dowell
Elementary School. They will be subjected to 40,000-plus
vehicles traveling 50-plus miles an hour 24 hours a day.
The completion of the project should be the Noses Creek
route, as it will deliver the least injury and fatalities for
those who use and live near the route.
Delay of the project increases the amount of people it
affects. There has been a subdivision built in the past 3 years
that will be disturbed by the Noses Creek route. We have been
told that the road cannot be developed along Noses Creek
because of danger of disturbing the environment. Environment is
a major concern for all of us. After reviewing the list that is
used by the Corps of Engineers, it is obvious to me that there
is a major environmental concern missing. That concern is the
human environment in relation to all conditions and options. If
you do not consider human environmental conditions as important
as the balance of nature, how can you make moral and ethical
decisions? The answer is you cannot.
We all need to understand that today each of us should set
the only logical, moral and ethical decision in our minds. The
decision that Noses Creek routing needs to be developed and
acted upon. The health and well-being of thousands of innocent
people depend on it. It is in our hands here today. The issue
is prosperity or adversity. One of those will prevail.
I appreciate the time. Thank you very much.
Mr. Barr. Thank you, Mr. McLean.
Rounding out this first panel will be Mr. David Parr, like
Mr. McLean, also a resident of the West Sandtown community
which is impacted greatly by recent decisions and delays
regarding the West Cobb Loop.
[The prepared statement of Mr. McLean follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Parr. Thank you very much. I would like to extend much
thanks to Commissioner Cooper, who put my name in the hat, so
to speak; Chairman McIntosh for inviting me here; and
Congressman Barr.
My name is David Parr, I am a resident of the west Cobb
community. I live in a subdivision located off of West Sandtown
Road. I also want to make it clear that I do not represent any
one group, I represent myself and my wife. However, I do feel
my views are in line with a majority of the people in west
Cobb.
First of all, let me make it very clear I do support the
building of the West Cobb Loop and its eventual completion. The
road is very much needed to accommodate the growth of west Cobb
and that is something that the county definitely needs.
However, we should do the best to minimize any
repercussions to our communities, the surrounding communities
and as well as the environment, which is also very important.
The question here is can we balance the needs of both the
environment and our communities. I think we can. It is not
impossible, but what it takes is team work and pulling together
of all the parties involved.
As I have stated, the road is definitely needed to
accommodate the growth and connect the eastern portion of the
county with the western portion of the county, and to alleviate
traffic congestion.
The Corps of Engineers earlier this year did reject the
recommended route, which deeply concerns me, and the subsequent
lack of cooperation between our political leadership, DOT and
all the other parties. There does not seem to be any
cooperation there and that bothers me.
You ask how will this impact our neighborhood, how will
this four-lane road which may travel through several different
communities, depending on which alternative route is selected,
if that is the case? It would definitely impact the health and
safety of our community and our children. Take, for example,
the West Sandtown Road, as was eloquently stated earlier by Mr.
McLean, involves several different homes on the road, 50-plus
driveways on the road, schools, churches. They would be
significantly impacted and I do not know that we want to do
that. I do not think anybody here wants to do that. We do not
want to endanger the lives of our community and our children.
We do not want to reduce the quality of life in that area.
Every day when I drive down West Sandtown Road, I see joggers,
I see cyclists, I see children walking to and from school. And
I do not think we want to impact or endanger their lives.
An additional point that I would like to state is my
understanding of the east-west connector is we want it to be a
transportation corridor between east and west. That means
limited access. And the alternative routes defeat the whole
purpose of that. They involve different communities, many
different homes and so forth. So I do not see that being a
limited access highway.
So I would strongly urge all parties involved to get
together to search for a win/win solution, not only for the
west Cobb communities, but also the environment. I think it is
very important to keep the environment as natural as possible,
with as little impact as possible, but we have to weigh the
needs of the two, the communities and the environment, and
somehow search for a win/win solution. And I think we can do
that. We have to pull together, and I would recommend or I
would urge everyone to come together and revisit the original
route recommendation which was denied earlier by the Corps, and
ask five questions in a different light, a more enlightened
approach, a more positive approach.
Let us ask ourselves what is already working well with the
recommended route? What specifically makes it work? What are we
trying to accomplish? What would be the benefits to the county,
surrounding communities and the environment? What can we do
more of better or differently to begin moving toward our
objective?
I hope we can do that. If you use that approach, I think
you will find a win/win solution for all.
I strongly urge everyone to come together, re-examine the
original route and do whatever it takes to make that everyone's
preferred route.
Thank you.
[The prepared statement of Mr. Parr follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Barr. Thank you, Mr. Parr.
Before we move into the questioning of this first panel--
and I would like to thank all of the panelists again for being
here today--I would like to introduce the chairman of our
subcommittee, who has arrived. Mr. Chairman, we usurped your
power, but only temporarily and only for I hope the same
purposes for which you would have exercised it.
Mr. McIntosh. I am sure it was good intent.
Mr. Barr. It is a tremendous pleasure for me to introduce
to the Seventh District, to Cobb County and the rest of the
citizens from across the Seventh District who have an interest
in these hearings and have an interest in seeing that their
Government at the Federal level remains more in contact and
reaches out more to our communities, I would like to introduce
the chairman, Dave McIntosh.
Mr. McIntosh was elected to the Congress at the same time
that I was, in the 1994 election. He represents Indiana's
Second District and chairs this subcommittee on the Government
Reform and Oversight Committee. His prior work positions him
uniquely to really play a major role in helping to formulate
the policies, the programs, the regulations that bring us here
today.
Mr. McIntosh served as Special Assistant to President
Reagan for Domestic Affairs. He has also served with former
Attorney General Ed Meese. But perhaps most importantly is the
tremendous work that he did with former Vice President Dan
Quayle working on the Council on Competitiveness. He did
tremendous work over the years in looking at Federal
regulations and trying to make them a little bit more rational,
a little bit more reasonable, a little bit more understandable
and a little bit fairer to all the interests in our
communities.
Mr. Chairman, it is a pleasure to welcome you here to the
Seventh District and to Cobb County today.
Mr. McIntosh. Thank you very much, Bob. [Applause.]
I have a long prepared statement which I will put into the
record, but let me just say I appreciate you arranging for this
hearing; thank you for getting it started, and I apologize,
particularly to the first panel, and to everybody, for being
delayed. My flight was late, which gave me plenty of time to
read your testimony on the plane, and so I am familiar with the
issues you wanted to bring before the subcommittee.
Let me say very briefly that I think this issue of how we
enforce wetlands policy in this country is critical, for
several reasons. First, it is critical for doing the right
thing for the environment. Second, it is critical for doing the
right thing for the people who are involved: in this case, the
homeowners that Mr. Parr represents and others. But also, I
think it is important that we look at this from the perspective
of preserving our civil rights, because one of the rights that
our Constitution guarantees is that the Federal Government will
not take private property without paying just compensation,
even if it is for the best public use.
And one of the things that I think we have seen over and
over again in this whole area is that citizens, very innocent
in their own regards, oftentimes are punished or appear to be
punished because their land is designated as a wetland. And so
part of this hearing will be hearing from people about how this
process works: does it protect property rights, does it serve
the citizens well, and does it end up doing the best job
possible for the environment in preserving important natural
habitat?
And again, Bob, let me say thank you to you and
particularly your staff here in the district for arranging this
hearing. Our subcommittee has a tradition now of going outside
of Washington and listening to people who are engaged in
everyday lives and do not have time to come to Washington to
petition us for relief from the Government, and taking that
information back with us. And I can tell you folks in Cobb
County that Bob has been a great member of this subcommittee
and is an active voice for the people here in Georgia every
time we get together.
So thank you and let us proceed now with the rest of the
panel. I have had a chance to read your written testimony and
look forward to talking with you as we move into question and
answer.
[The prepared statement of Hon. David M. McIntosh follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Barr. Thank you, Mr. Chairman. With your permission
then, I will begin the questioning and then turn it over to
you.
Mr. Croy, as the transportation director for Cobb County,
could you provide a little bit of background to the
subcommittee on how the West Cobb Loop project has been and
will be paid for?
Mr. Croy. The West Cobb Loop project, which is a project in
west Cobb County that connects Dallas area to the Powder
Springs Road area through west Cobb, is a project that was
first initiated in our 1985 Transportation Improvement Program.
Mr. Barr. I am sorry, that was 1985 or 1995?
Mr. Croy. 1985.
Mr. Barr. Thank you.
Mr. Croy. It was set aside by the voters in 1985 as one of
the projects in that TIP. Now our Transportation Improvement
Programs here in Cobb are funded through a local option 1
percent sales tax. That tax has been voted on by the voters of
Cobb County in 1985, again in 1990, and again in 1994. So we
have had three TIPs. Moneys for the West Cobb Loop were set
aside in both the 1985 and the 1990 program. And this is all
local funds, there are no State or Federal dollars in the
project.
Mr. Barr. Thank you. And can you give us just a ball park
figure of the current estimates of the cost of the project and
whether or not those have increased or decreased over the years
that the project has been delayed?
Mr. Croy. Well, the current estimates as they stand today
is on the approximately $35 million range. This is a project
that certainly costs in construction has increased, especially
structural work. So although I am not in a position to give an
exact dollar figure, I would predict that projects where we
have structures--this particular project has one bridge that is
approximately 3,000 foot in length--those projects would have
escalated over the past 12 months.
Mr. Barr. Representative Wiles, you talked a little bit in
your remarks about the lack of an effective appeal process for
the rejection of wetlands permits, section 404 permits.
Are there some specific ideas that you would want to bring
to the subcommittee's attention with regard to how we can
implement an effective appeal procedure?
Mr. Wiles. Well, in my mind, the courts, the Federal
courts, should be the last resort, not your first step, if you
are dissatisfied with a decision of a Federal bureaucrat.
Mr. Barr. And you say that as an attorney.
Mr. Wiles. I do, because my constituents are the ones that
pay the bills for the county's attorneys to go litigate these
cases. And delay, because of the litigation, we know in dealing
with the Federal courts, not in particular this case but it is
always a delay period, it always takes time. Traditionally in
dealing with the Government, there is the Administrative
Procedures Act which provides an independent judicial, but not
really, a procedural appeal process, where someone can hear it
quickly. Generally they are in that area, whatever area you are
appealing through the Administrative Procedures Act, they are
familiar with the issues and they can evaluate the issue. Where
here, you get a Federal judge who perhaps has never heard a
case such as this. With an Administrative Procedures Act appeal
you will get someone that is technically up to speed and
perhaps get a quicker decision. Importantly, I think you will
get a much more cost-effective solution. Instead of burdening
the Federal courts with litigation, you can perhaps resolve
this case.
And the other point would be perhaps there needs to be
mediation or a process after the appeal or before the appeal,
where you get the people in a room and you try to work it out,
as opposed to having where you are now; you get a Federal court
suit and then the judge says can you all not work it out.
So that is my ideas--mediation or perhaps an Administrative
Procedures Act appeal.
Mr. Barr. Thank you.
Mr. Croy, I know you are very familiar with this project,
both you, Commission Chairman Byrne, Chairman Wysong,
Commissioner Cooper, the entire Commission has been working and
devoting a great deal of attention to this project. We have
heard today from two citizens from the community directly
impacted, who have indicated their support for the project
moving forward. You have heard from Representative Wiles who
represents citizens who are directly impacted and favor the
project moving forward.
In your view, does the project as the Commission has
proposed it, have the backing of the community in general?
Mr. Croy. Prior to the Board adopting what is known as the
Noses Creek alignment, there were several public meetings. One
public meeting I know was attended by in excess of 600 folks.
It is my opinion that as this process has evolved since 1993,
when the Board adopted the Noses Creek alignment, that that
alignment has the general approval of the majority of the folks
in west Cobb, as well as the technical staff that has reviewed
this project on behalf of Cobb County.
Mr. Barr. When did the county first approach the Corps of
Engineers for a permit?
Mr. Croy. The individual permit, I believe--let me check my
notes--application was made in February 1993.
Mr. Barr. Four and a half years ago, approximately.
Mr. Croy. Yes, sir.
Mr. Barr. I, of course like you, read local media from this
area and I have noticed in recent days there have been some
articles that seem to reflect some movement with regard to
possibly resolving this impasse. Is there anything that you can
share with us today publicly with regard to whether or not
there are some positive developments? Because one of the things
we want to do here is not simply to highlight the problems, we
want to identify if there are problems in the procedures, in
the regulations, in the laws that need correcting. But we also
want to be very mindful of the fact that if there are things
that are working, that we highlight those as well, and perhaps
do something to make sure that these things that are working
happen quicker and in a less costly way.
Mr. Croy. Our Board of Commissioners has directed the
Department to submit a new application to the Corps of
Engineers for the West Cobb Loop. We have had preliminary
discussions at a staff level with members of the Corps, which I
think have been very positive. We have a meeting scheduled for
the first week of July to go over the pre-application process
for this new alignment.
So I think we have had very positive discussions that are
leading, at least from the county's perspective, so we can
submit an alignment very similar to the Noses Creek alignment,
but then again, it would be a new alignment, certainly in the
Corps' eye.
Now I cannot speak for the Corps, other than that in our
discussions with staff--and I know there is a process we have
to go through--but I think the very positive process that we
have worked well with the Corps over the past 2 or 3 weeks is
the exact appeal process that we wish we had, that we could go
back and take a second look at a decision and get answers and
communication and maybe bring about better views of certain
documentation.
As I said in my testimony, I think the traffic
considerations, there has always been some miscommunication I
feel as it relates to traffic, and we have had the ability I
think now in the past few weeks to sit down and address that
issue.
So I think what we are doing is very positive, it has
worked--it is working at this point in time and I think that is
the very thing we need in an appeal process.
Mr. Barr. Thank you, Mr. Croy. Mr. Chairman.
Mr. McIntosh. Thank you, Bob, I appreciate it.
I have got a couple of questions for Mr. Croy and the staff
is checking whether there are maps available that we could show
to help me understand this. But while that is being arranged if
it is possible, let me ask Mr. Parr and Mr. McLean, do you have
any general suggestions that we could take back for improving
the regulatory process, either with relationship to the Corps
and the wetlands permit and EPA's involvement, or any other
insights there?
Mr. McLean. Yes, I believe there are some ideas that should
be implemented and I believe the appeal process should be
amended so that somebody can go in and mediate and talk about
the issue that was selected and the decision that was made.
It seems to be that the information I have, all parties did
what they were commissioned to do, but on the other hand, there
is more information that comes up after the fact that needs to
be reviewed.
If we had a process where that information could have been
reviewed, we may not be talking about this at this point. So
that would be my suggestion.
Mr. McIntosh. OK, thank you. Mr. Parr.
Mr. Parr. I would concur with several statements made
earlier that there certainly should be some type of appeal
measure in place other than having to go to court. I do not
think that speeds up the process at all and all it does is get
a few lawyers a little more richer.
Also, just looking at some of the material here. I do not
have access to that application but I was just reading the
denial or the reason for the denial, and a lot of it seems to
stem from maybe some misunderstanding from our side in
completing that application. It looks like the Corps was
looking for other alternatives to weigh the benefits of any
alternative.
Just based on my background, any time you put forth a
proposal, you weigh the benefits of all proposals. You do not
want to just put up one proposal, you want to put up three or
four options and weigh the cost/benefits of all those options
and you choose the best one within the scope of whatever you
are dealing with, whatever your resources are, and the concerns
of the parties involved.
I would recommend that we make sure that the original
application is submitted correctly, and if there is not any
means in place to make sure that the parties involved, whether
it be the DOT or the Corps or whatever, are talking and
everybody understands both sides of the issues. We should make
sure it is done right the first time rather than have to go
through all this.
Mr. McIntosh. Thank you. Actually that keys up my next
series of questions for Mr. Croy.
And if you could put up for us, Mr. Croy, a map that
shows--and I have got it labeled on mine ``Alternative 1-A,
Nose Creek,'' which I think was the original county proposal. I
do not know if there is a staff person that could help them
with that.
Let us talk about the costs and the benefits of that
particular proposal, I guess in particular with relationship to
the concerns the county had with residential areas as well as
the concerns about wetlands that may be in the route. What is
the impact in terms of residences in the area and what is the
impact on wetlands and what was the county's proposal to either
mitigate that or build additional wetlands in other areas?
Mr. Croy. OK. And I apologize to the audience for blocking
their view a little bit here, but it is very hard for you all
to see up on the screen.
The alignment that you see before you is the preferred
alignment, known as the Noses Creek alignment. This is--just to
orient you--this is Dallas Highway at Villa Rica, Villa Rica
Road and it leads onto the new alignment. What you see marked
in blue are the wetland areas along the route and what you see
in red are proposed bridges. To orient you a little more, this
is Macklin Road in west Cobb, terminating at Powder Springs
Road here. North is to your right.
The proposal as submitted originally to the Corps has--the
impacts to wetlands, was approximately 11 acres. Of that 11
acres, three of it was in this area of bridging, primarily in
the area here. That reduced it to just under seven acres, which
I believe was in--as you can see, again from memory,
approximately 13 different areas, the greatest impact is in
this area near Macklin.
What we proposed as mitigation sites along the area is a
combination of mitigation which totaled up to just over 80
acres of mitigation. That had areas of restoring, areas of
wetlands, had areas of creation. This area in pink is a wetland
that would be created. The areas in green are what we consider
upland buffering, these are areas we would acquire, this piece
of property, as county property, and we would require as you
see in the green as upland buffering. Again, another area in
here of the upland buffering. And restoration, which is shown
in the yellow.
So by the 8 acres of impact or 11, 3 of them we mitigated
with a bridge, the other 8 we came up with a mitigation plan of
about 80--I think it was 85 acres in round numbers--between the
green area, which is again, just to review, upland buffering.
The yellow area which is restoration and the blue area--I guess
that purple/pink is creation.
Mr. McIntosh. So let me summarize for my own understanding.
You would have an impact, particularly with the bridge over a
total of 11 acres, 3 with the bridge--those wetlands would
continue to exist but there would be some impact because the
highway would be built with a bridge over it. And then in
exchange for that, if you will, you are proposing to upgrade or
create a total of 86 acres that would be environmentally
protected areas, to preserve other wetlands in the area.
I guess that is the environmental benefit. The economic
benefit for the road I am familiar with in connecting the two
parts of the county. What is the cost in terms of people having
to be relocated or other concerns that you would have with the
community there?
Mr. Croy. We had several relocations along this project.
Let me pick up my notes if I might.
Mr. McIntosh. Sure.
Mr. Croy. As the project was set on the original alignment,
there was only three residences that would be impacted as far
as relocations, with this alignment along Noses Creek.
Mr. McIntosh. And your usual procedure with that is to
condemn the property and pay the property owner the value so
they can choose to relocate in another area?
Mr. Croy. Right. Our normal procedure in all right-of-way
negotiations is to make that property owner whole. We would
have an independent appraisal and offer that property owner
that appraised value for their property. If it is a relocation,
then on top of that we offer them relocation assistance if they
need that.
Mr. McIntosh. So you attempt to make them economically
whole and obviously there is an intangible value if that is
their dream home and they really wanted to live there, there is
not much you can do about that. OK.
Now anything else in terms of the costs or benefits in this
particular alternative?
Mr. Croy. The only thing I might mention, that since you
are on new location, the areas from where the new location
takes over, which is basically this area here just off Villa
Rica, all the way to the end of the project, which is the
majority of the project, since you are on new location, you can
control the curb cut and the access point, and our Board of
Commissioners had designated this area to be limited access. So
there was to be--with the exception of land-locked properties--
there would be no access points along that section of roadway,
which is--in the design process, those type roadways you can do
on new locations; it is very difficult to do limited access on
widening off the center line on existing locations because you
can see the many property owners along like this section of
Villa Rica that would certainly need curb cuts.
Mr. McIntosh. And if I remember correctly from some of the
projects that we have looked at in my State, that allows you to
have a higher rate of traffic back and forth and greater safety
than when you have the access, because you have got fewer
people coming on and off, it is a speedier way of transporting
east to west.
Mr. Croy. That is correct, you provide a more safe road,
you also provide a better flow of traffic because you do not
have conflicting turning movements along the roadway with the
curb cut.
Mr. McIntosh. OK. Now if you have got some charts there--
and it was not clear to me, and having missed your testimony--
there was an alternative three, which the staff had reported to
me was the one the Corps preferred, when you had submitted your
proposal for the Noses Creek, and I guess that is called the
West Sandtown Road?
Mr. Croy. Yes. I think the one that has been discussed
primarily, certainly today, is an alternative of West Sandtown.
Let us rearrange here just a little bit and set this one down.
[Pause.]
Mr. Croy. Again, to orient you on where we are at, Dallas
Highway, this is, in this line here, is the preferred
alternative. This alignment is the proposed alignment. What you
see above here in this red is what has been called the West
Sandtown alignment, which is one of the other alternatives, one
of four alternatives, actually five, there was that variation
of one, that were examined in this corridor.
As you can see, the one difference between the Noses Creek
and the Villa Rica West Sandtown is that the West Sandtown
stays along an existing road pattern, either Villa Rica or West
Sandtown until you get south of Macklin Road. Then the two
projects are very similar, along the same alignment.
Mr. McIntosh. And so for that portion of it, you would be
required to have additional or many more access cuts into it?
Mr. Croy. Due to the amounts of property, you would have to
look at one or two alternatives. You would have additional curb
cuts for the properties along the roadway, or you would have to
buy the access rights along that section of roadway, at least
all the properties that front the roadway, and have a greater
number of relocations. You would have to look at one of the two
alternatives.
Mr. McIntosh. And how many relocations, I guess with each
alternative, would you anticipate?
Mr. Croy. If we purchased the access rights along the
alternate, the West Sandtown-Villa Rica alternate, as you
recall, I think we had approximately three on the Noses Creek.
If we buy the access rights along West Sandtown, it would
exceed 40.
Mr. McIntosh. And if you do not buy the access rights, how
many relocations would there be?
Mr. Croy. It would be I think approximately a dozen, but
then you would have 30 or something, close to 30 curb cuts you
would have to deal with.
Mr. McIntosh. And is that the entire route? So it is three
compared to either a dozen plus the curb cuts or 40?
Mr. Croy. That is correct.
Mr. McIntosh. And then what is the impact on wetlands in
that area?
Mr. Croy. Well, the impact on the alignment along West
Sandtown is relatively minor in regard to impacts. You do not
get into any of the areas that we were bridging in here.
Basically this green outlines the stream areas. Again, from
memory, I think we have looked back at this alignment and could
possibly have the wetland impact of the West Sandtown well
under two acres.
Mr. McIntosh. Was there any proposed mitigation with that
alternative?
Mr. Croy. No, we have not examined it other than that we
know we have this same mitigation site in here would be
available for the West Sandtown also.
Mr. McIntosh. OK.
Mr. Croy. This mitigation site is common to both
alignments.
Mr. McIntosh. And about how many acres is that, do you
know?
Mr. Croy. This particular area is probably--about half of
the 80-something acre mitigation is in this, so approximately
40 acres.
Mr. McIntosh. OK. Thank you, I appreciate it, and my time
has very much run out for questioning. But let me just say
those judgments and tradeoffs are ones I very much believe we
should not be making in Washington and that you all should be
making here in Cobb County and in Georgia. But it helps me to
eliminate some of the questions that you have had to ask and
answer in that. And I will have some more questions later on.
Bob, did you have anything else?
Mr. Barr. Just two very quick followup questions.
One, Jim, if you could for folks that are not familiar with
some of the technical language, when you say mitigation, what
do you mean?
Mr. Croy. Well, basically when we have a transportation
project and we have any issue, whether it is wetlands, historic
structures, community; we basically have three approaches. The
first is avoidance, try to miss them. If you cannot avoid them,
then you try to minimize whatever that impact is. In other
words, you do something to reduce the impact. The third is what
we call mitigation, which means if you know you are going to
have an impact like an embankment or a fill area in a wetland,
then you do something to replace that impact, like you create a
wetland somewhere else, you improve wetland that certainly may
be improved by additional plantings or along those lines or you
maybe do some upland protective buffering, so you do not have
encroachment into other wetlands. So basically those are the
three areas that we look at and mitigation being just one of
the three.
Mr. Barr. And you were just talking with the chairman about
an area of mitigation there, you are not talking about a one to
one. What sort of ratio are you talking about?
Mr. Croy. Well, normally we do not have--at least we do not
have a set standard here in Cobb, we look at each project a
little individually and see what is available. We have had some
projects where we have had, you know, four and five to one.
This particular project, certainly we have three different
types of mitigation, that being restoration, creation and
upland buffering. And if you weighed them all together, it
would be about a 10 to 1. Now obviously all three of those in
the environmentalist's eyes carry different weights because
they provide different issues. One creates a wetland out of an
area where there is not one or it had been one in the past and
it has probably through agriculture been destroyed. Two, the
restoration is basically you are making improvements to an
existing wetland that may have been damaged primarily during
agriculture. Or third is upland buffering which we feel is very
important because it protects--it is the actual protection of a
wetland area and does not allow any encroachment.
Mr. Barr. But the bottom line is when you are talking in
this particular proposal in terms of mitigation, basically the
county here has proposed a ratio of about 10 to 1 in terms of
mitigation.
Mr. Croy. That is correct.
Mr. Barr. For those areas of wetlands identified by the
Corps.
Mr. Croy. That is correct, sir.
Mr. Barr. And that was rejected, so far.
Mr. Croy. The permit application was rejected. Now in
reviewing the permit application, the reason for rejection was
not the mitigation plan.
Mr. Barr. I understand. Thank you. Thank you, Mr. Chairman.
Mr. McIntosh [presiding]. Thank you.
Just let me close this session by saying I want to commend
you and the county for doing a good job in working on these
different alternatives, and Bob has impressed upon me the
urgency of creating this transportation corridor for all sorts
of reasons here in the county. And to my way of thinking when
you can get a tradeoff where you have affected only three
families instead of potentially 40 and also seem to be doing a
good thing for the environment, where you create 10 additional
acres of wetland for every 1 that is impacted; that is a good
deal. We see a lot of plans coming through where it is one for
one in terms of what people are willing to do on the
environmental side.
So I want to commend you for the good work. We will hear
from the Corps later on some of their thinking and I would hope
that in the coming months that we could get a good resolution
to this.
Mr. Croy. Thank you.
Mr. McIntosh. Bob, did you have any further questions for
this panel?
Mr. Barr. No, thank you, Mr. Chairman.
Mr. McIntosh. OK. Let me say thank you to all the
participants on this panel. I appreciate you coming today, and
your input. We may have some additional questions and I will
ask unanimous consent, if Bob will agree, to keep our record
open for the next 10 days and give you a chance to answer any
of those that we may have for you at a later time.
Thank you very much for coming.
Mr. Wiles. Thank you, Mr. Chairman.
Mr. McIntosh. I will now call forward our second panel. And
I would ask that each of you please rise.
[Witnesses sworn.]
Mr. McIntosh. Thank you very much. Let the record show that
each of the witnesses answered in the affirmative.
Our first member of this panel is Mr. Robert Dabbs, who is
a local developer and owner of Dabbs Construction Co. Mr.
Dabbs, thank you for coming, and if you would please share with
us a summary of your testimony.
STATEMENTS OF ROBERT E. DABBS, DEVELOPER, DABBS CONSTRUCTION
CO.; GRADY BROWN, CATTLE RANCHER, ACCOMPANIED BY STEVE WOODALL;
AND WAYNE SHACKLEFORD, COMMISSIONER, GEORGIA DEPARTMENT OF
TRANSPORTATION
Mr. Dabbs. First, I would like to thank the committee, Mr.
McIntosh, Mr. Barr, for giving me the opportunity to present my
problem to somebody that I feel like can help us, and
especially to Karen Barnes, who has been a big help since I
finally got the number of somebody I could call that I could
talk to about my problem.
I am a small real estate developer from Cartersville, GA,
which is in Bartow County. I have been in the development
business for 25 years and have never before been in violation
of a wetlands regulation. I, with two partners, have employed
approximately 165 workers that were going to build
approximately 20 something homes once we start our subdivision.
This is a small residential subdivision called Ivy Chase on
Shinall-Gaines Road in Bartow County.
Because of disturbing 0.63 of an acre of wetlands in a
development of a 111-acre residential subdivision, the Army
Corps of Engineers has shut down our project for approximately
3 months, which forced us to lay off approximately 165 people
that would be building homes on our property, that has either
had to go somewhere else or had a delay of time without work.
We have spent thousands of dollars providing information to the
Corps of Engineers and as you see, we have had no response. As
a result, my partners and I are on the brink of financial ruin
if we do not get something done. In fact, one of my partners,
was a working partner in this project, and his wife had quit
her job as a sales agent because she was going to be handling
all our sales. He was doing the grading and once this stopped,
she had lined up approximately 20 buyers that was lined up for
a builders draw the following week that they shut us down. It
has totally put her out of work with no income at all. It has
put Mr. Hansard out of work, he is down now to only having one
piece of equipment left. Fortunately, Mr. Temples and myself
did have--we have got some other income that has kept us going,
but with a project of this size, it is going to be a financial
disaster for all three of us.
Let me tell you how all this began. After retaining a soil
scientist and a civil engineer to conduct development
feasibility studies and reports, we purchased the property for
this development project on April 19, 1996. The property
consists of 111 acres.
After purchasing the property, we complied with all local
and State regulations to plan for the development, including
State and local permits. We did not realize that any of the
property consisted of wetlands within the jurisdiction of the
U.S. Army Corps of Engineers. We did not realize this because
there was no standing water on the property and because the
National Wetlands map provided by the U.S. Government to
display wetlands showed no wetlands on our property.
Furthermore, we were not advised by our soil scientist, who we
had hired, or the civil engineer or any of the local government
people that we had to go through to get all of our land
disturbance permits and especially the Bartow County Health
Department.
Like I say, I have been developing 25 years. We did not
file a nationwide permit because I had never heard of it. None
of the people that we hired to do our professional work told us
about it. I have talked with them since this come up and they
say they did not know we was supposed to either. At this time,
I still do not know if we are actually supposed to. The law is
very confusing to me even after I got involved in it, that we
went from 10 acres to 3 acres and to 0.3 of an acre as to where
they have jurisdiction. We are showing now that we have less
than 2 acres. So I am not even sure today if we are supposed
to. The 0.3 of an acre supposedly took effect in February of
this year.
But after receiving all local approvals to do so, we graded
and paved streets, constructed drainage ditches and culverts.
We enlarged a pond on the property from about one-half acre to
about 2\1/2\ acres.
The soil scientist had identified certain soil types and
showed that on the western tip of this property that there
could possibly be some wetlands area. Due to that, we did not
do any part of our development as being on that piece of
property.
After the subdivision lots were developed and all was done,
we went to get our last permit that we had to have from the
Bartow County Health Department, which had visited this
property numerous times, had us to dig holes on approximately
every lot in the subdivision and then when we were getting our
last approval or disapproval on certain lots, they had at the
end of the letter that they had--in additional, they had asked
the Corps of Engineers to come inspect this property. For some
reason, we are the only ones that they have ever called the
Corps to come inspect and up to now, are still the only ones.
I asked them at the time did they think we had any wetlands
or did they know that we were supposed to file a nationwide
permit and the employee of the Bartow County Health Department
told me that he did not even know we were supposed to. So I
have a real problem as to why they waited until we had
completed the project, but they did.
Upon being advised of the requested site inspection by the
Corps of Engineers on March 17, my partners and I immediately
and voluntarily ceased all development of the subdivision and
awaited the site inspection results.
During the site inspection, representatives of the Corps of
Engineers verbally advised that the property could contain
wetlands that had been disturbed and that we were in violation
for failure to obtain a required permit from the Corps of
Engineers. We were told that we were required to continue our
voluntary cessation of the development and that we would
receive a written Cease and Desist Order from the Corps of
Engineers advising us of further requirements, proceedings and
dispositions.
On April 3, 1997, the Cease and Desist Order was issued and
mailed to us. We had, immediately upon realizing that we were
possibly in violation of Federal regulations, retained another
engineering firm with the expertise that specialized in
wetlands regulations. We were required to continue the
cessation of development and provide the requested information
to the Corps. The new engineering firm began the necessary site
investigations to determine what, if any, wetlands had been
disturbed.
As required, our first response to the Corps of Engineers
was submitted on April 11, 1997. We responded that we had
voluntarily ceased all development work and intend to cooperate
with the Corps of Engineers and comply with all applicable
Federal regulations.
Our second required response was filed by May 3, 1997 and
consisted of the following information.
A wetland delineation of the project showing areas of
impact and areas to be impacted including detailed drawings.
A topographical map of the area showing elevations as they
existed prior to the placement of any fill material.
Written explanation of the necessity of placing fill
material in a wetland area in lieu of a high ground location.
Information on when development work began.
Indication of the source, type and quantity in cubic yards
of fill material used to date, the date any work was last done,
the type of equipment being used and the purpose of the work.
Copies of all approvals received from any other Federal,
State or local agency for this work.
Copies of deeds for the property, names and addresses of
all property owners and developers involved in this project.
Explanation as to why notification of the proposed activity
was not sent to the Corps of Engineers.
The wetland delineation of the project showing areas of
impact and areas to be impacted prepared by our new engineers
and submitted to the Corps of Engineers on May 3, 1997,
concluded that 0.63 of an acre of wetlands was impacted.
Even as I speak, I am not sure, since this work was done
during 1996, if disturbing 0.63 acre of wetlands required a
permit from the Corps of Engineers. Here is what is most
frustrating in dealing with the Corps--our engineer advised me
that he has made repeated telephone calls to staff members of
the Corps, but can acquire no information as to when the Corps
will make any determination as to our project. Corps staff has
told our engineer that they are so overworked that they do not
know when they can even look at the information we have
provided them.
Our engineer even urged the Corps staff to release the
Cease and Desist Order on the other 110 acres which are not
wetlands, but to no avail. Again, I understand the response was
they do not have time to even look at this information.
In an attempt to get a response, our engineer, on May 22,
1997, wrote the Corps staff member assigned to this project
that since less than 1 acre of the 111-acre project had been
disturbed, based upon the submitted delineation, ``we have
advised our clients to resume work except in areas within 50
feet of the wetland defined in our delineation.''
Again, to date, we have had no response from the Corps of
Engineers. Despite the advice of our engineers, we have not
resumed work on this project outside the wetland areas. The
reason that we have not is that the Cease and Desist Order
still is in effect, which threatens civil fines of up to
$10,000 per day of violation, criminal fines up to $50,000 per
day of violation and imprisonment along with the injunctive
relief, including restoration of the area.
We are not that brave or foolish, whichever the case may
be.
But in the meantime, because of disturbing 0.63 of an acre
of wetlands that may or may not be a violation to Federal
regulations, the development of our entire 111-acre residential
subdivision has been shut down for approximately 3 months while
our expense continues. We have spent thousands of dollars
providing information to the Corps of Engineers. Our
development and interest expense has continued to mount up. As
I speak, we have spent approximately $25,000 out of our own
pockets for interest on an approximately $850,000 that we have
put into this project, plus the work that the Corps has asked
us to do which we have submitted to them. And there is no end
in sight because we could absolutely get no answer. Apparently
the Corps of Engineers has no requirements establishing time
limits within which they have to respond to us. We had a 10-day
requirement to respond to them and a 30 day, which we met.
I do not dispute that wetlands need to be protected, but at
what cost or what kind? The land that we are talking about is
land that never held any water, to my knowledge, but it only
had a green plant that is called a wetland plant. We actually
made more water, we made a half acre lake into a 2\1/2\ acre
lake, we built a dam around it. We have used this for our
retention pond, which is required by the Bartow County Land
Disturbance Permit. We have graded the property where the
entire water runs into this pond or lake and will only go out
where we have pipes that go out of it that is made where the
only amount of water that can go through that pipe is the same
amount that had went off the property before. This is a piece
that will keep water in it all the time because we dug it 10
foot deep and used the dirt to make a dam around it. So we
provided more water in that area for birds and ducks and stuff
that is on the pond now.
In closing, I would like to say that I do not think the
Corps of Engineers staff members are not caring, diligent,
hard-working people. Maybe they have too much to do and too
little to do it with. I am asking that during this
deliberations, you consider these things. When new and existing
regulations are being enacted and enforced, some consideration
be given to not just impact on wetlands, but to impact on those
who are enforcing the regulations and those upon whom they are
being enforced.
To me, I have run a construction company. If all of a
sudden my number of houses to build or develop would go up
hundreds of permits, I could not get to it. From what I see,
the Corps is facing is you have gone from 10 acres to 3 acres
to 0.3 of an acre, so you have given these people thousands
more projects that is going to be called on for them to inspect
and evidently from the numbers that I see that work on this in
Georgia, they do not have the staff to even do it when we do
have a problem.
Again, I would like to say that I appreciate this
opportunity to express to the subcommittee and feel like that
maybe through this that we can get some help to do what we have
to do to make right of the land we disturbed. We have a theory
of taking some area there and planting some wet weather plants
back to make up for what we destroyed there, or we can fill the
lake back in to a certain degree to make it to where it would
be just a very small amount of water where the weeds can grow,
where now we have a nice looking lake there. But whatever it
is, we want to know. And we do not know.
Thank you.
Mr. McIntosh. Thank you, Mr. Dabbs. Maybe we will find out
later today.
The next witness is Mr. Grady Brown and his son, Steve
Woodall, will be reading his statement. Thank you Mr. Brown and
Mr. Woodall for coming.
[The prepared statement of Mr. Dabbs follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Brown. We do want to thank you for inviting us, Bob,
committee. We feel like we have got a chance now to tell our
side of it, which we have not had a chance before, and we
appreciate it, we want you to know. And this is my son-in-law,
Steve Woodall. I am going to let him read it for me.
Mr. Woodall. I am his son-in-law and I have been in his
family for almost 30 years.
The property we are dealing with is property we used to cut
hay and bush hog on, so we have a long history of knowing what
this property was before these problems were artificially
developed.
I am going to read his statement. His statement begins
with:
My name is H. Grady Brown and I am a resident of Carroll
County, Georgia. I am a retired president of a Villa Rica,
Georgia hosiery mill and am a landowner and cattle rancher. I
worked my way up from the floor of the hosiery mill to become
owner and president of my own company. I spent my weekend and
evenings building my cattle farm.
Today, I want to tell you about a tough situation I have
been forced into, stuck between the Georgia Department of
Transportation and the U.S. Army Corps of Engineers.
Essentially, the Georgia Department of Transportation in
advertently flooded some of my farmland, creating a wetland in
the eyes of the Corps. Now the Corps will not allow the
Department of Transportation to fix the problem they have
created. I am stuck with useless, swampy land because the Corps
insists it is a protected wetland even though it was created by
accident.
My farm is located in Villa Rica, Georgia, a once rural
area of Georgia which is quickly developing as Atlanta expands.
It has been hard, but I have worked to keep my land
agricultural and undeveloped. A portion of my farm, which is
located behind my house, lies alongside Highway 78, just west
of the city of Villa Rica. The rear portion of this property
has a creek running through it which provides water for my cows
and my farming operation. I have owned this land since the mid-
1940's and have cut hay and kept cows along the banks of the
creek since that time.
In approximately 1959, the Soil Conservation Service came
through and dredged and cleared the creek running along and
through my property in order to better develop the watershed
for a water reservoir that was built in Temple, Georgia. This
lake, Lake Buckhorn, was fed in part by the creek running
through my land.
When the Service did this, any wetland along the creek was
drained. During the mid-1980's, the city of Villa Rica and the
Georgia Department of Transportation built a road off of
Highway 78 to open up an industrial park for the city. That
road cut across my property and crossed the creek. The City and
the Department built a bridge over the creek so that my cattle
could pass under it and they could continue to graze on the
western portion of my farm cutoff by the new road. The
continued use of this portion of my property was essential to
my agreement to sell the right-of-way for this road.
Unfortunately, this work diverted the path of a small
north-south feeder creek or drainage ditch which ran into the
larger east-west creek running across my property. The
Department actually put a dog-leg turn in this small creek.
This diversion caused a buildup of water and silt on my
property and began to cause a swampy area on the 10-acre field
which was left on the western side of the new road across from
my home. This swampy area was further enlarged as industrial
development began in the new industrial park. A large
distribution facility was built on the property adjoining mine.
The driveways going into the property further diverted and
blocked the small feeder creek where it ran into the larger
creek crossing my property and added more water and silt to the
problem. By the late 1980's, the 10-acre field had become a
wet, grown up swampy area. I could no longer cut hay or keep
cattle on the property.
Around 1990, I began to contact the Georgia DOT and the
city of Villa Rica to discuss the problem which their
development had caused. After many complaints and the threat of
legal action against the Department and the City, the Georgia
Department of Transportation admitted it was their fault and
agreed to dig out the channel of the small feeder north-south
creek to drain the area which had become swampy, to try to
alleviate the damages caused. They did this in approximately
1995 and after they did this, the area started to get better,
to drain and go back to the farmland it had previously been.
However, soon after the work was done to alleviate the blocked
feeder creek the Georgia Department of Transportation was
contacted by the U.S. Army Corps of Engineers. Apparently
someone had complained that the Department and I were trying to
drain wetlands.
The U.S. Army Corps of Engineers threatened the Georgia
Department of Transportation with stiff fines and penalties if
they did not reblock the now cleared feeder creek. In response
to this, the Department came back in and built dams all along
the path of the feeder creek. I think there are approximately
12 of them that they have built. Now the water from the
adjoining property does not have a path to get into the larger
east-west creek which runs along my property. It simply spreads
out over my land, causing a swamp in an area which was once
open fescue pasture. It has made my land useless and has
created an ugly eyesore since it has basically been condemned
as wetlands. No one can see my land as the trees and grasses
continue to grow.
My only desire is to return the property to the way it was
so that I can use it for my cattle and to cut hay.
Additionally, this land is located now in an industrial park in
the growing city of Villa Rica. It has been my desire to leave
this property to my children and grandchildren, expecting one
day that they could develop it. Property adjoining this field
is selling for in excess of $25,000 an acre. The property is
now useless and I do not understand how the actions of the
City, the Department of Transportation and the adjoining
landowners to develop property around my land can be allowed to
create a situation which takes the value of my land.
I do not want to sue the Department, the City and my
neighbors. I simply want my land returned the way it was. The
simple way of doing this is to clear the feeder creek and allow
me to drain the property. I do not want to change the land from
how it was when I bought it, I simply want it returned to
pasture land running along the banks of a creek.
Thank you.
Mr. Brown. Thank you for your time.
Mr. McIntosh. Thank you both, we appreciate that and we
will have some additional questions for you at the end of the
panel.
Our final witness on this panel is Mr. Wayne Shackleford,
who is the commissioner of the Georgia Department of
Transportation. Mr. Shackleford, welcome, thank you for coming.
Yes, Mr. Barr?
Mr. Barr. Excuse me, Mr. Chairman, I would just like, for
your further background, to state that during the time that I
have had the honor of representing the Seventh District in the
Congress--the same length of time as you have had that pleasure
and honor with the Indiana Second District, we have worked very
closely with Mr. Shackleford, with the State DOT, with Mr. Max
Golden, who is our representative from the Seventh District,
with Chairman Johnny Gresham, who is from this county, and have
found Mr. Shackleford, the folks that work in his office and
the Board extremely responsive to working with us to try and
identify and work through problems and it is a particular honor
to have Mr. Shackleford here today from his very busy duties on
behalf of the people of Georgia.
Mr. McIntosh. Thank you. Thank you very much, Mr.
Shackleford, for joining us.
Mr. Shackleford. Mr. Chairman, Congressman Barr, I want to
thank you for the opportunity to meet with you today and share
with you our deep concerns about a process that needs re-
engineering, a process that has lost its customer focus. I
refer to the process of managing and regulating our Nation's
water resources.
The Georgia Department of Transportation makes every effort
to comply with our Nation's wetland policies. We believe in
these goals. However well intended these goals are, these
policies are, the administration has become an impediment in
meeting our State transportation and our economic needs of our
State. What we need is a renewed Federal and State partnership
which recognizes the value of all our resources, both natural
and manmade, that are essential to sustaining our quality of
life.
The Clean Water Act was intended to protect this Nation's
water resources. However, the Corps of Engineers and the
Environmental Protection Agency have greatly expanded their
jurisdiction and created a bureaucratic maze through
Memorandums of Agreement with other Federal agencies. Thus, in
effect, the Federal agencies have extended the extent of
congressional law.
For example, one Memorandum of Agreement between the Corps
of Engineers and the Fish and Wildlife Service allows the Fish
and Wildlife Service to request denial of the permit based on
the premise that the wetlands are of national importance. Mr.
Chairman, Congressman Barr, there is no definition of national
importance in the law. Please note that in the Memorandum of
Agreement between the Corps and the Fish and Wildlife Service,
which was provided to you, the purpose is to minimize, to the
extent practical, duplication, needless paperwork and delays in
the issuance of permits. This Memorandum of Agreement has the
exact opposite effect.
Furthermore, the Fish and Wildlife Service is able to
control the Corps of Engineers' actions because of a process
that we are required to follow. Our Department provides an
extensive information package to the Federal agencies that
provides the Department's best alternative and a purely wetland
minimization alternative. The wetland minimization alternative
which we are required to do by this process values wetlands
above homes, businesses, churches, schools, historic resources
and other environmental considerations.
The Department meets onsite with the Federal agencies to
answer questions concerning the proposed alignment and impacts.
Unfortunately some representatives show up unprepared and thus
in turn adversely affects the service that is our
responsibility to provide to our customers and theirs as well.
After the field visit, the Federal agencies are supposed to
submit timely comments. However, our Department is currently
waiting on comments from the Fish and Wildlife Service on over
15 projects for which the field visits were held as long as 15
months ago. The reason given to us for the lengthy delays have
been lack of personnel and time. We believe that the real
reasons are lack of ability to make decisions and a refusal to
accept validity of our analyses.
Mr. Chairman, Congressman Barr, this process has created a
bureaucratic nightmare resulting in enormous delays and since
1989, we estimate an additional cost of over $100 million in
our State alone. For example, Riverside Parkway widening in
Rome, GA. We have been attempting to obtain a permit for over 6
years. The current roadway is a dangerous two-lane facility
which has experienced numerous accidents. As recently as 1995,
this stretch of road, which is a mere 1\1/2\ mile long project,
has experienced 35 accidents resulting in 10 injuries to
people.
Our desire would be to fill only seven-tenths of an acre of
wetlands which we have offered to mitigate with 4.1 acres of
created wetlands on the site, which will result in a 25 percent
net increase to the stream basin. We have shown no industrial
pollution to occur in the project impact area. Yet we have been
asked by the Federal agencies over and over for additional
information. Due to the regulation process that allows Federal
agencies to never come to closure, we cannot construct this
most needed project.
The Homer bypass in Banks County, GA. The alignment for
this project had been developed over a 12 year period in
consideration of a reservoir proposed by local government and
right-of-way was subsequently purchased at a cost of $1.6
million. However, the permit was denied by the Corps. An
alternate to avoid wetlands would have displaced 2 businesses
and 10 homes at an additional cost of $3 million.
Mr. Chairman, Congressman Barr, all of this additional cost
to avoid only 7\1/2\ acres of wetlands which we offer to
replace with 56.9 acres of wetlands.
You have heard the Villa Rica, GA case from Mr. Brown. He
is a victim, caught between our responsibilities to maintain a
roadway and a Corps of Engineers who will not allow us to do
so. Yes, we have in fact put the check dams back in place. Yes,
we have continued to divert water from its natural flow along
that road to the main tributary to that stream he described, to
a minor tributary.
Mr. Chairman, Congressman Barr, we have had numerous
problems with the Corps wetland regulatory policies. However,
we have had the opportunity to work together on some successes
as well.
To date, our department owns approximately 6,700 acres of
wetland mitigation throughout our State scattered on about 60
locations. For each acre we fill, we are currently replacing it
with approximately 5 acres. Still, some of the Federal agencies
cry that we do not do enough.
Mr. Chairman, Congressman Barr, there are not enough
success stories, but we believe that can be changed. Congress
has been struggling with reauthorization of the Clean Water Act
for several years. This reauthorization should address the
division of the Corps and the U.S. Environmental Protection
Agency. Unnecessary Memorandums of Agreement should be
eliminated. Let the law stand on its own merits.
The timing of this hearing could not be more appropriate.
Please note the letter we provided that we were just advised in
May 1997 that the Fish and Wildlife is withdrawing from
participating in our field reviews. These field reviews are the
actual cornerstone for resolving our differences on projects.
Could it be that some Federal agencies do not want to resolve
disputes in a timely manner and to partner with their
customers?
The Clean Water Act should be amended to require the
Federal agencies to meet us halfway and to provide practical
alternatives instead of asking us as applicants over and over
and over for additional and unnecessary studies. This could
eliminate the lengthy string of requests by Federal agencies,
substantially shorten the time to resolve issues.
In closing, Mr. Chairman, Congressman Barr, we believe that
our Department and the Corps of Engineers can work together to
provide a transportation system and better protect wetlands.
But only if the regulatory procedures and policies can be
streamlined.
I want to share with them in some of the successes that we
have. Preservation such as you have seen today--Phinzy Swamp in
Augusta; Bowen's Mill Pond on U.S. 84--and I would like them to
share with pride in our transportation successes.
And I thank you for the privilege of appearing.
[The prepared statement of Mr. Shackleford follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. McIntosh. Thank you very much, Mr. Shackleford, that is
enormously helpful in terms of understanding. I have got
several questions that your testimony raises.
I appreciate all the members of the panel, and now we will
go and alternate off on questions. Actually let me start right
away, Mr. Shackleford, with you.
You mention the Fish and Wildlife Service has indicated in
a letter to you, and I think we have got a copy here that I
will submit into the record, that they no longer will
participate in the field reviews. Is that--and I have not had a
chance to see the letter--but is that a new national policy of
theirs? And their absence in those field reviews, will that
mean that the other agencies will be able to go ahead and make
decisions without them?
Mr. Shackleford. It probably means that the decisions will
not be made without them. They could be. I think you know that
U.S. Fish and Wildlife can ask the Corps to elevate to a higher
level any decision the Corps is about to make that they do not
concur in. So very honestly, I do not see that as an
opportunity to speed the process up.
Mr. McIntosh. Do you think it will inevitably slow it down?
Mr. Shackleford. Yes, sir.
Mr. McIntosh. And is that a final decision or is that
something they are putting on the agenda at your next
coordinating meeting in July?
Mr. Shackleford. The letter to the Corps says that we will
not be back. It is addressed to Necholus Ogden; ``Therefore, I
am going to withdraw the Service from the upcoming May 28-29
PAR, the Preferred Alternatives Report, and future PARs until
we can agree on what they are intended to accomplish. I will
utilize this saved time to address some of our PAR backlog.''
Mr. McIntosh. We will put that on our agenda to find out
what is going on.
What would you say the major reforms are that could be made
in this process to make it much more streamlined from your
perspective?
Mr. Shackleford. Well, I think if we are going to make
wetlands preservation reach the potential that it deserves,
that true partnering is going to have to exist; that we have
got to recognize that in addition to the preservation of
wetlands, we have the responsibilities to preserve historic
resources and to share impact on our people, their homes, their
churches, their schools and businesses. Wetlands banking,
mitigation banking--you heard the discussion earlier about how
one compensates someone whose right-of-way is taken, pay them
for the value of what you are taking, pay them for the
consequential damages on the remainder, mitigate the impacts on
their lives as best you can.
Mitigation is a clear and viable or practical alternative
to the wetlands issues. When we are mitigating at the ratios we
are mitigating, it should not be months and years while
decisions are made.
Mr. McIntosh. And to speed up the process so everyone can
get their answer. And do you think a banking approach would
work where there would be already mitigated areas that could
then be offset against future projects?
Mr. Shackleford. I very much do.
Mr. McIntosh. Mr. Dabbs, let me ask you, you mentioned that
you and your engineer had not even received a telephone call
back from the Corps of Engineers. In the written testimony,
does that remain the case?
Mr. Dabbs. Our engineer, who is David Bleetman with Blue
Ridge Engineering, he has made repeated calls to the Corps of
Engineers and has asked them when would they be able to come
by, visit the property as they stated they would need to do,
and review it with him and then tell us what was necessary to
do to resolve the problem. And the answer that he gets from
them is that they are so overworked or so far behind, they have
got other projects that are ahead of us and that they cannot
give him any date as to when they might be able to come back or
even be able to review the material, which this is one of the
books that we were required to send to the Corps.
Mr. McIntosh. And his conclusion is that you are not even
under the jurisdiction of the Corps because you would be
covered by the national permit for small areas?
Mr. Dabbs. No, I made the statement that I am not sure that
we are. But due to the fact that at one time it was 10 acres,
it was reduced to 3 acres and now it is reduced to 0.3 of an
acre; we started this project in April 1996. I am not sure and
have not been able to find out as to when the acres were
reduced. We have continuously, through our engineer making
phone calls to the Corps, the local Corps here in Atlanta, he
has asked them would they release the 100 acres. Everything, as
I stated awhile ago, that he has determined to be in the
wetlands, to where we could go on with our development, and has
been refused, that they could not release any of it until they
had time to study the material and to visit the property.
We have a nice entrance that we have built going into the
subdivision. We have landscaped it with nice plants. We were in
the process--we had got our irrigation system set in that bed
of plants, we lacked 10 feet of pipe of tying it into our sales
trailer and the water meter that is adjacent to it. I even
asked him to ask them could we, about a month ago, for the
first time since last fall, we had some weather where the land
got dry and these plants were hurting for water, I said ask
them can we just connect our pipe, we have got to run 10 feet
to where we can water these plants. We have got $1,000 or
whatever in them and we hate to see the plants die. And he has
even refused that, that any work being done there was subject
to the $10,000 a day fine or $50,000, which you know, that
would even ruin a rich man, let alone somebody like us.
Mr. McIntosh. In your estimation, why are they refusing
even to make common sense determinations like that? Is it an
effort to increase the monetary punishment?
Mr. Dabbs. They said they could not do it until they had
time to come back and visit the property or review the
property.
Another problem that I have got is we have available to us
in Bartow County, it is a national wetlands map, which shows
property that could potentially be wetlands. And of course I
was told by the people that visited the property when I showed
them this wetlands map which had our property on it, which
showed no wetlands on it, that this did not mean anything, that
this was just a guideline. So, why print them?
Mr. McIntosh. By the way, what was the plant on the
location that they decided was a hydrophilic plant?
Mr. Dabbs. Where were they located?
Mr. McIntosh. No, what type of plant was it?
Mr. Dabbs. All I know is I was told that this was a
spreadly type weed that was considered on the endangered
species. As far as knowing the name, I have no idea.
Mr. McIntosh. That is interesting. The reason I asked is
that when I was working with Vice President Quayle, we went
into great detail about the manual and it became very clear to
me then that the scientists do not even agree as to what areas
are sensitive environmental areas to be protected as wetlands.
And sometimes they go on the existence of plants where there is
not necessarily water because the plants can live in dry areas
as well. And so that leads to occasionally bizarre results
where there is no water but they still call it a wetland. And I
know that those problems continue to exist.
My time has elapsed on this session. Mr. Barr, do you have
any questions for this panel?
Mr. Barr. Yes, thank you, Mr. Chairman.
Mr. Dabbs, let me just make perfectly clear that I
understand the situation here. Your engineers have told you
that you can resume work on the project outside of the wetlands
area, but you have not done so. Have you actually been
threatened with criminal prosecution if you move forward?
Mr. Dabbs. Oh, yes, I have, with the letter that I got from
the Corps of Engineers. He advised me to go ahead back to work.
He felt like--I think his feeling was that this would maybe
enact the Corps to respond to us and try to get ours finished
up. But he has advised me that since he wrote that letter, he
has had no information come from them, I have had none and
neither one of my partners. But there is no way that we can
take a chance to go in there and do anything now without being
subject to a $60,000 a day fine or being put in prison.
Mr. Barr. Mr. Brown, has there been any threat of throwing
you or State DOT in jail as part of your efforts to just get
your property back the way it was?
Mr. Brown. I did not take it that way, but they did tell
the DOT if you do not put--plug these ditches up, we are going
to fine you $125,000 a day and of course the DOT did not want
to have to pay $125,000--they made them come up there by
telling them they were going to charge $125,000 a day.
Mr. Barr. Thank you.
Commissioner Shackleford, I think I have the amount right
here. I think in your presented testimony you indicated that
since 1989, you estimate just that your Department alone has
incurred a cost increase of over $100 million as a result of
inflation and changes in project scopes due directly to the
delays that you all have experienced. Where does that $100
million come from? Do you all just make that up out of thin
air? How is that going to be paid? Is it the taxpayers of
Georgia that are having to foot that bill?
Mr. Shackleford. Yes, sir. Mr. Congressman, there are only
two sources of motor fuel tax funds in our budget, the Federal
Highway Trust Fund and the Surface Transportation Act, the
Intermodal Surface Transportation Efficiency Act of 1991 and
Georgia's Motor Fuel tax. There is a third source of revenue in
the Governor's Road Improvement Program and those are general
obligation bonds since 1991, about $125 million a year. Each
year that the delay drags on on a permit carries with it the
increased right-of-way costs, the increased construction costs,
a very severe impact on lives. People who are waiting for a
decision cannot plan the rest of their lives. That is something
that bothers me greatly, sir.
Mr. Barr. Is $100 million important to the people of the
State of Georgia or is that an insignificant amount?
Mr. Shackleford. It is a very substantially important
amount to the people of the State of Georgia, sir.
Mr. Barr. Mr. Shackleford, in focusing--I know you have
expended a great deal of time in trying to work with Mr. Brown
and resolve the situation as he described it. In your view, do
you believe that the wetlands created on Mr. Brown's property
were the result of State DOT's normal maintenance activity on
roadside ditches?
Mr. Shackleford. Those wetlands were created when a
driveway was installed without a side drain. The water that
normally traveled down that road to the lower stream then was
diverted down his driveway across the properties and created
the new area of wetlands. There is no question but what they
were created by the Department of Transportation and the lack
of a side drain at that driveway, sir. And it was the
correction of that issue that led to the actions against my
Department.
Mr. Barr. We sometimes have a tendency to focus on sort of
the big picture and sums of money, but you touched on something
else that I think, and I want to make sure on this, is
important to your work and the work of your commissioners. And
that is the public safety. You spoke specifically I think about
that with regard to a project that is also in the Seventh
District and that is the Riverside Parkway widening in Rome,
GA.
Could you just clarify, is the primary reason why you all
have sought to correct that situation there simply for the
public safety, the safety of people to travel on that
relatively short stretch of highway?
Mr. Shackleford. Yes, sir, it is a mile and a half in
length and would provide a divided roadway, substantially
reducing danger to lives. You know the numbers, Congressman,
our interstates, our limited access highways, are five times as
safe as county and city roads and streets on the national
average. Our other State routes are twice as safe. We have a
need. You heard my testimony on the number of wrecks and the
number of injuries. It is that simple.
Mr. Barr. Is the--let me also clarify with regard to your
testimony exactly what you are saying here. I do not read your
testimony or interpret your testimony as saying that the issues
that are raised in trying to protect as part of the overall
equation here wetlands in our country are to be ignored.
Mr. Shackleford. Oh, I very much--I began my testimony by
saying we totally subscribe to the fundamentals, we very much
believe in it, we are very proud of what we have done at Phinzy
Swamp, we are very proud of a 1,300 acre mitigationsite on the
Altamaha in Long County mitigating 129 acres on U.S. 341. We
are very proud of 443 acres in Bowen's Mill Pond. We totally
have that responsibility. We want to be a part of the solution,
we want to share with the environmental agencies in pride in
the protection of those resources. We would like them to share
in the transportation solutions that make this great State and
this great Nation competitive in a global environment.
Mr. Barr. So your position is that the notion and the
philosophy underlying the Federal law that does protect
wetlands is good and it is sound, but the process that brings
us to this situation today where we have these delays, the
threats of our citizens being put in jail, has really become an
impediment to the effective use of the wetlands law itself.
Mr. Shackleford. You can be assured putting those check
dams back in that road made more sense to me than becoming the
victim of a civil fine or criminal penalties.
Mr. Barr. Well, we much prefer to have you here as a free
citizen instead of in shackles as well, Mr. Commissioner.
Mr. McIntosh. Who is Bill Phillips, by the way? He is the
man who received the letter.
Mr. Shackleford. Yes, and he is one of my staff people.
Mr. McIntosh. One of your staff people.
Mr. Barr. Just one other thing briefly to followup on a
question the chairman had. With regard to these Memorandums of
Agreement or Memorandums of Understanding that seem to now, as
you have indicated, be interjected into this process and really
have led to further delays, is this a new phenomenon that you
are seeing or is this a problem that you have witnessed for
quite some time?
Mr. Shackleford. Mr. Congressman, the Corps of Engineers is
a victim of the process. They are prisoners of the process.
They have the legal responsibility but they have the clear
knowledge that EPA can veto Corps of Engineers and the other
Federal agencies can require it to be elevated. They need the
clear powers to make decisions and take actions.
Mr. Barr. Thank you.
Mr. McIntosh. Let me followup on that question. So by
implication, one way in which the Corps would be able to act
more responsibly would be if we removed the EPA veto of their
decisions on wetlands permits?
Mr. Shackleford. My testimony was that they should be split
out and let the law stand on its own merits. That is correct,
sir.
Mr. McIntosh. Let me followup on a slightly different train
of thought rising from some of the questions Bob asked. You
indicated some statistical analysis of the safety of interstate
and limited access highways.
Mr. Shackleford. Yes, sir.
Mr. McIntosh. And State roads compared to local street
traffic. Could you, for the different projects that we have
discussed and that you have in your testimony and perhaps the
east-west highway that we were talking about in the first
panel, do a statistical analysis for us to determine how many
anticipated lives would be saved by upgrading those?
Mr. Shackleford. There is research that has been done under
the guidance of the Transportation Research Board, the Federal
Highway Administration that clearly spells out the data. In our
own State, in the last year's data, we have on the State
system, 1.68 fatalities per 100 million miles traveled. We have
a much lower number on the interstate system, a substantially
higher number on the county and city nondivided median roads.
The number for my entire State during 1995 was 1.75, it is 1.68
on the State system. It is substantially lower than that on
limited access highways. And you heard Jim testify in behalf of
the alternative that is a limited access and the fact that the
more driveways that are injected into the system, the greater
the numbers.
That statistical data can be analyzed. Cobb County is very
capable of having their consultants do it, we are available to
help them, sir.
Mr. McIntosh. I would appreciate that and then you had
mentioned a couple of other projects in your testimony. If you
could provide that analysis for us. And we will keep the record
open----
Mr. Shackleford. We can, sir.
Mr. McIntosh [continuing]. For you to do that.
Mr. Shackleford. Yes, sir.
Mr. McIntosh. It is an aspect that sometimes is overlooked,
although it is interesting, in other areas of regulation. In
health and safety, we worry about concerns of increased
statistical probability of say somebody who eats dirt next to a
utility having cancer develop, and the 1 out of 10 million, 10
to the minus 7 is the statistical way of expressing it, and
that triggers concern for us in the regulatory process. So it
would be interesting to see what possible increased health
risks are being caused in pursuit of this wetlands policy.
Mr. Shackleford. And in your great State of Indiana, the
numbers are the same, across this Nation. Limited access
highways are the safest. Other well laid out roads, State roads
are generally sounder than county and city roads. An operation
like Cobb County as fundamentally adequate as their staff is, a
Commission that is willing to make the hard decisions, to hire
the proper consultants, their limited access roads have the
same numbers that we have on ours on the State system, sir.
Mr. McIntosh. Thank you very much. I appreciate it. I have
no further questions. Mr. Barr, do you have questions for this
panel?
Mr. Barr. Just one followup. Mr. Dabbs, you talked about
the construction jobs and I think you used the figure of 165
construction jobs. Are those folks unemployed at this time,
that would be normally working and anticipated to be working on
your project?
Mr. Dabbs. Some would probably be or they have had lost
hours. The 165 I am referring to is we had lined up on April 3,
the day we got the Cease and Desist letter from the Corps of
Engineers, we would at this time be building 20 to 25 homes
that we would have approximately two-thirds completed. The
subdivision above us had none started, were not as far along as
we were and as of today, they have probably got 15 homes built
in there. It is according to which of our customers went
somewhere else, found lots--which I know they had a period of
time that they lost work. Some of them still may not have. So
the 165 is an estimate from knowing how many numbers of people
would be working on that project today, including plumbers,
electricians, carpenters, painters and that type. Unless they
found work other places, then they are out of work.
Mr. Barr. But these are real people, men and women who are
trying to be productive and work and need to support family and
provide for the health and needs of their families, that are no
longer able to do that, at least based on the work that your
project would have offered to them.
Mr. Dabbs. That is correct. And like I say, I have living
testimony, standing in the rear is Mary Hansard who is the wife
of one of the partners that I said awhile ago was one of the
working partners. She quit her job and had been working for
months sending letters to builders to sell the lots to, that
were going to build the homes. She had everything set up for
the second week in April and when this came--she had to call
all of them and tell them what had happened. Those buyers have
gone other places. She has been totally--to my knowledge, has
been totally out of income since that date because this is all
she had lined up. Of course, we really felt like that we would
get this resolved in 30 to no more than 45 days. But like I
say, the last information or correspondence that has come to us
as the developers is this Cease and Desist letter that the
Corps mailed us on April 3. The only other information we get
is where our engineer has made telephone calls to the local
Corps office here in Atlanta.
To answer the question that you asked me awhile ago more
clearly, this is what it says in our Cease and Desist order:
``We are required by Federal regulation 33 CFR 326.3 to issue a
Cease and Desist Order to all persons responsible for or being
involved in the performance of unauthorized work.'' We come
under that because we did not file a nationwide permit that we
were not familiar that you had to, and still I am told you do
not have to on certain lands unless you think you have got
wetlands on it. If you do not, then it is a violation, to my
understanding. Which we did not think we had any, if I had
known about it. But we did it without knowing anything about it
or any of our people that we had hired, the soil scientist, the
Department of Health, the civil engineer, none of them told us
this.
But when you get a letter that says this, any work
performed within our jurisdiction as of this date does not
assure forthcoming authorization. In addition, any unauthorized
work which you may perform may subject you to civil and/or
criminal prosecution, civil fines of up to $10,000 per day of
violation, criminal fines of up to $50,000 per day of violation
and imprisonment are provided along with the injunctive relief
including restoration of the area.
To me, this is strong. There is just no way we could take a
chance to violate this. It has just been a nightmare to us.
What really scares me is when we talk to other people that have
friends or somebody that something similar to this and they say
you will be lucky if you hear from them in 12 months.
I heard Mr. Shackleford make a statement awhile ago they
have had a project they have been working on, have not had
anything done in 15 months. That is what I understand.
So, we are subject to be the same thing. Right now, we do
not know, it might be 2 years before we hear a thing. We were
in process of getting our final plats stamped by Bartow County.
They have had to hold up that because of this, that they
cannot--until we get relief by the Corps of Engineers. They do
not know what they are going to make us do, so they have had to
hold our final permit until we get relief from them. And we are
just at a standstill. I mean my opinion, I always looked to the
Corps of Engineers as being the people that help build lakes,
that help to the needs of the people, boating, building camp
sites, helping the American people. But what we are subject to
here is just absolutely a nightmare and by taking the land like
they have took our land for this period of time and not knowing
when it will be released or if they will take it without
compensation, as Mr. McIntosh said awhile ago. I mean this is
something that the American people would only think that this
could happen in another country, not in the free United States
of America.
Mr. Barr. Thank you, Mr. Dabbs.
Mr. McIntosh. Thank you very much. Bob, did you have any
further questions of this panel?
Mr. Barr. No, Mr. Chairman.
Mr. McIntosh. Thank you all for coming, I greatly
appreciate your participation. And as I said, we will keep the
record open and may have some additional followup questions for
each of the panelists and particularly for Mr. Shackleford in
following up on that one area of analysis.
Let me now call forward our third panel, which consists of
Colonel Grant Smith, who is the District Commander of the U.S.
Army Corps of Engineers for the Savannah District. And Col.
Smith, I understand that you also wanted to have two of your
staff members testify as well.
Col. Smith. Well, they are only here to help assist in
details if I need it.
Mr. McIntosh. OK. Why do I not ask all three of you if you
will please rise.
[Witnesses sworn.]
Mr. McIntosh. Let the record show each of them answered in
the affirmative. And by the way, that is something that the
full committee has asked us to do with all the panels, whether
we are here on a field hearing or back in Washington.
Col. Smith, obviously I appreciate very much your
willingness to come, and particularly to sit through the
earlier portions of the hearing where your agency and some of
your own staff members' work has been called into question. I
appreciate your willingness to come and talk with us about
that. Frankly, I have heard some very disturbing things, but I
want to give you a chance to talk about those, to talk with us
about where you see things going and some of the things that
have happened in the past. And then Bob and I will both have
questions for you and perhaps you can refer to your staff
members if you wish to. And we welcome their participation
really at any time they feel they can add to the discussion.
But I do appreciate greatly your coming today and
participating in this hearing. If you could give us a summary.
We have been asking witnesses to take 5 minutes, but you have
got a lot to say, I would imagine, so go ahead and take longer
than that. And also, if you get a chance to, address some of
the issues that were raised in those two earlier panels.
STATEMENTS OF COLONEL GRANT M. SMITH, DISTRICT COMMANDER, U.S.
ARMY CORPS OF ENGINEERS, ACCOMPANIED BY BILL HOUGH, DISTRICT
COUNSEL; AND NECHOLUS OGDEN, CHIEF OF REGULATORY, U.S. ARMY
CORPS OF ENGINEERS
Col. Smith. Thank you, Mr. Chairman and also Mr. Barr.
As a matter of introduction, I am Col. Grant Smith,
Commander and District Engineer of Savannah District, U.S. Army
Corps of Engineers, headquartered in Savannah, GA.
Savannah District is one of five districts in the South
Atlantic Division of the Corps of Engineers and we already had
introductions--accompanying me, I have my District Counsel, Mr.
Bill Hough and our Chief of Regulatory, Mr. Nick Ogden.
At this point, I would like to address several of the
issues that have been brought by previous witnesses. I may miss
some of these and certainly we can discuss this during question
and answers.
One of the items that was brought up earlier in testimony
had to do with the Corps' preference for the West Sandtown
alternative on the county proposal for West Cobb Loop. I want
to correct, at least from our view, that fact, in that the
Corps has no preferred alternative with regard to the West Cobb
Loop permit application.
I would also like to address the issue of appeals. The
Corps has recognized the need to have an appeal process
associated with our regulatory work and we have established
this process, it is currently awaiting resourcing. So the
process would allow an appeal, administrative appeal, of a
Corps of Engineers decision on a permit application. It would
also allow for an appeal on the delineation of the wetlands.
I would also like to address Mr. Dabbs. I must say that as
the District Engineer, I was unaware of Mr. Dabbs' predicament
until we prepared for this hearing, and in fact, several of my
senior staff were also unaware of his predicament. So I
certainly apologize if Mr. Dabbs feels that he has not been
satisfied as a customer. It is our policy to satisfy all of our
customers.
It also appears that Mr. Dabbs was not aware of a scheduled
meeting that is scheduled this week. My staff informs me it is
on the 18th, to meet onsite and clarify the issue of the
wetlands delineation on his property. I will say that my staff
has indicated that the initial indications from our folks
looking at the property is that it was more than the 0.63 acres
of wetlands, it could be upwards of 5 acres of wetlands. But
our jurisdiction only does cover that area of wetlands. So if
Mr. Dabbs has property clearly in the uplands that is not
potentially a wetland, he can continue work on that right now.
And I apologize for any kind of miscommunications that may have
occurred to lead him to believe that he could not continue work
on uplands areas where there was absolutely no possibility of
there being wetlands involved.
Mr. McIntosh. Great. I appreciate that and I am sure Mr.
Dabbs will as well. And that would narrow it down to those
smaller number of acres, 5 or 0.63----
Col. Smith. That might be in contention as to whether or
not they are wetlands or not.
Mr. McIntosh. That is imminently sensible and I appreciate
you----
Mr. Dabbs. May I have that in writing, sir? [Laughter.]
Col. Smith. We will certainly provide that in writing, yes.
Mr. Dabbs. Thank you.
Mr. Barr. Maybe even better, today you have it under oath,
right now.
Mr. McIntosh. Thank you, Col. Smith, I appreciate that.
Col. Smith. OK, I would like to go ahead and proceed.
The Corps is responsible for managing and administering a
regulatory program under three authorities. These authorities
are Section 10 of the River and Harbors Act of 1899, which
regulates structures or work in or affecting navigable waters
of the United States; Section 103 of the Marine Protection
Research and Sanctuaries Act, which regulates the
transportation of dredge material for the purpose of ocean
disposal; and principally what we are discussing today is
Section 404 of the Clean Water Act, which regulates discharges
of dredged or fill material into waters of the United States.
Savannah District administers this program in the State of
Georgia. In administering its regulatory program, the Corps
utilizes a number of different kinds of permits, including
nationwide general permits, regional general permits and
individual permits. Nationwide permits issued by the Chief of
Engineers allows certain activities deemed to have minimal
impact on the environment. Typical nationwide permits include
installing aids to navigation and the construction of minor
road crossings.
Savannah District has also issued several regional general
permits for certain repetitive minor activities within its
geographic jurisdiction, such as the construction of boat docks
and the creation of artificial reefs.
Nationwide and regional general permits are designed to
expedite the permitting process for those projects that have no
more than minimal adverse environmental effects. In 1996,
Savannah District authorized 1,235 projects under nationwide or
regional permits. The average processing time for these
nationwide permits was 15 days and for the regional general
permits, 8 days.
Projects of major scope and which have potentially large
environmental impacts require individual permits. Some of these
projects include piers, bulkheads, large dams and projects that
require filling large areas of wetlands. Major road projects,
such as may being constructed throughout the metropolitan
Atlanta region and in Cobb County are another example. Savannah
District issued 88 individual permits in 1996 with an average
processing time of 75 days. We denied three applications during
that same period with an average processing time of 72 days.
I am aware the subcommittee is particularly interested in
my recent denial of the road project known as the West Cobb
Loop. As you are aware, suburban Atlanta, including Cobb
County, is growing at a very rapid pace. Since 1990, Savannah
District has processed and approved 218 permits in Cobb County
alone. The average processing time for these permits was 27
days.
The Savannah District received a completed permit
application from Cobb County Department of Transportation in
February 1994 for the West Cobb Loop project. As required by
our regulations, the Corps issued a joint public notice
regarding the project shortly after receipt of the application.
It was mailed to 935 addressees. We received comments,
information and requests for additional information from four
Federal agencies, six State of Georgia departments, 127
citizens of Cobb County and concerned environmental and
historic preservation groups. We also responded to 12
congressional letters requesting information on the project and
the status of the application.
This application took longer than average, almost 3 years,
to fully determine whether the project complied with all the
applicable laws and determine that a full and complete public
interest review process had taken place.
On January 14, 1997, I denied Cobb County's permit
application for the West Cobb Loop road project. The reason for
the denial was that of the four alternative corridors presented
in the application, only the preferred alternative corridor was
described in any detail by the applicant. Requests for
environmental analysis of the three other alternatives did not
result in sufficient information to judge the practicability of
other potentially less damaging alternatives.
On February 13, 1997, Cobb County filed an action in the
Federal District Court for the northern district of Georgia
seeking to challenge the denial of the permit. The matter is
now in litigation before the Honorable Robert L. Vining, Jr., a
senior Federal judge in the northern district of Georgia.
The parties have had several productive meetings to discuss
areas of mutual concern and recently signed a joint motion to
remand and stay the litigation. This motion was submitted to
Judge Vining and the Judge signed the order on June 3, 1997.
The Department of Justice has requested that questions
regarding the litigation be directed to Robin Richardson, the
Department of Justice attorney handling the litigation. The
purpose of the remand is to allow Cobb County an opportunity to
submit a new modified application to the Corps. Pre-application
meetings will be held next month to discuss this matter and to
review the purpose and need for the new road project. Following
these meetings, we anticipate that a new application will be
submitted. I do not have any additional information at this
time regarding the road project that will be submitted by Cobb
County in its new application.
In conclusion, the Corps of Engineers is dedicated to
protection of our Nation's aquatic resources, including
wetlands, while also ensuring that responsible development
which is in the public interest and meets criteria established
under the Clean Water Act is not unduly hindered.
As Commander of Savannah District, I must ensure that
projects subject to my jurisdiction are carried out with due
regard for potential environmental impacts and with appropriate
protection and mitigation of our valuable aquatic resources. I
am committed to making the application process a fair, open and
responsive one.
Mr. Chairman and other members of this subcommittee, this
concludes my statement. Thank you for this opportunity to
discuss the role of Savannah District in carrying out the
Corps' responsibility under Section 404 of the Clean Water Act
and I will be pleased to answer questions you may have.
[The prepared statement of Col. Smith follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. McIntosh. Thank you very much, Col. Smith.
Let me start with a general question, if I may, and it has
to do with a problem that we have had in putting together this
type of hearing in other parts of the country chiefly, where
witnesses are reluctant to come forward because they are
worried that in future work that they need to do with a
Government agency, that they will be penalized for that. And we
set a very vigorous and clear policy of pursuing any subsequent
activity of that, and we have had a couple of instances where I
have had to intervene on behalf of the committee with the
agencies at higher levels.
So let me just ask you now to join me in giving those
witnesses who appeared today an assurance that you will not
hold that against them and that you will work aggressively to
make sure that your staff does not do that.
Col. Smith. Certainly, Mr. Chairman, I am pleased to sign
up to that commitment and I can assure you that we are
interested in solving problems and not creating them.
Mr. McIntosh. I appreciate that, and you can understand how
that fear would come up, but I wanted to reassure each of them
and others who might testify at the open mic, that that was our
joint position on that.
Let me ask you a question on the West Cobb Loop project.
You indicated there was no preferred alternative. In essence,
and not speaking legally but more practically, the Corps' role
in this in having to sign off on it means that they have to be
involved in a real practical way as the county moves forward,
otherwise they make a proposal and it kind of goes into a black
box and they hope they get a favorable answer.
First, what were the concerns you had with the proposal
that was rejected and what are some of the guidelines that the
county should keep in mind as they are preparing a second
proposal pursuant to the Corps' remand?
Col. Smith. I guess if I could summarize what the Corps'
issue principally was and led to the denial of the permit, it
had to do with the purpose of the project, in a general sense,
which is to move traffic from south to north in west Cobb
County. As proposed to us, there were four corridors in the
application that were possible corridors to move that traffic
from south to north. We felt that we were never able to get
enough information to make a decision about alternatives in
three of those corridors, and in essence what we were left with
was a detailed presentation of alternatives in only one of the
four corridors, and as a result, we could not make a
determination that we had the least damaging--environmentally
damaging practical alternative.
Mr. McIntosh. And what type of additional information would
you need for the other three alternatives?
Col. Smith. What we asked for was alternative analysis
similar to what we got for the alternative that was presented
to us, where there were detailed variations of how the traffic
could be moved from south to north.
Mr. McIntosh. I am not following you.
Col. Smith. In essence, the application submitted to us
included a traffic analysis that was used to limit the looking
of specific alternatives to a single corridor. We had some
great difficulties with that traffic analysis and as a result
could not make--could not agree, applying the regulations as we
are aware of them, we could not agree to limiting the look for
this project into that single corridor.
Mr. McIntosh. Now I am somewhat confused, because is it not
the Corps' responsibility to make a judgment about the impact
of the project on the waters of the United States, or wetlands
under the 404, rather than to conduct a traffic feasibility
study? I mean, is that not what DOT or Georgia Department of
Transportation is supposed to do--aren't they charged with that
expertise?
Col. Smith. Yes, it is, but we are charged with ensuring
that what we have in the final project is the least damaging
environmental practical alternative for the stated purpose of
the project. And in this case, since we had very little
analysis looking at what alternatives were available in the
other three corridors, we could not make that determination.
Mr. McIntosh. Now by alternatives, you mean in terms of
impacts on the wetlands?
Col. Smith. Alternative routes that include not just
impacts on the wetlands, but in various other----
Mr. McIntosh. You see, I am concerned that you have defined
your mission too broadly, because I think the Corps is supposed
to look at the impact on wetlands and that part of the
environment, among all the alternatives and not judge the
practicability as to traffic flow. And so my question would be
did you have sufficient information on the impact on wetlands
for the other three alternatives?
Col. Smith. No, that is why we could not make a
determination on what was the least damaging to the
environment.
Mr. McIntosh. OK, so they need to provide you with
information about the other alternatives. And I take from the
testimony earlier today, they are going to work on
reconfiguring their preferred proposal.
Col. Smith. Either that or in some way redefine the purpose
of the project so that it is not as encompassing as the
original permit application.
Mr. McIntosh. See, that is where once again I see the Corps
going beyond its mandate. Why are you concerned about the
purpose of their project?
Col. Smith. That is what we have to--we have to deal with
the application as it is submitted to us, Mr. Chairman. We
cannot interpret the application, the application states a
project purpose and the purpose of the project as stated to us,
as we understood it, was to move traffic along one of four
corridors in Cobb County.
Mr. McIntosh. Right. And I would be greatly concerned if
the Corps takes on itself a broader mission than analyzing the
impacts on wetlands and the waters of the United States in
determining, say for example, the need or the scope of the
traffic problem. And I think that is what leads to the problem
in this particular case, that you have got to end up deferring
to the local government on those issues and then analyze
whether their proposal in this case to mitigate is sufficient.
And I guess the question I would have for you is if you have
got a mitigation proposal that is 8 to 1 or 10 to 1 on the
ratio, that is pretty good, is it not?
Col. Smith. The mitigation is very important, but the
regulations require us to sequentially look at the impact on
the environment, and the sequence is avoidance first, so that
the ideal situation is to avoid any impact on the environment.
And that involves alternate routes, looking at alternate
routes, which kind of led us to this issue of how can we make a
proper determination on whether we have the least damaging
environmental--least environmentally damaging practical
alternative when we do not have an analysis that might say
there is a route available in the fourth corridor which does
not impact the environment at all, and still satisfies or still
meets the purpose of the project, which is to move traffic
north-south adequately.
Mr. McIntosh. But if the county commissioners come back to
you and say our goal is to have a restricted access freeway and
we have analyzed the different routes and we have determined
that this is the route that accomplishes that goal, all the
others do not accomplish that goal because we are going to have
to create more access cuts. Then they have come back with the
one that has the least impact on the environment and they have
identified that there are not any others in which you can avoid
impact on the wetlands, and still accomplish their goal; which
is to have limited access transportation and, presumably, have
a minimum impact on people's lives.
Col. Smith. I guess the best way I can address that is to
say that--and I probably have not articulated it very well, I
obviously have not--is that we, based on the project
application, the permit application, that was presented to us,
we felt very strongly that in order to be able to make a
determination about the least environmentally damaging route,
we had to see a comparison of alternatives that included
alternatives in the other corridors. And we never got that
analysis, even though that was made clear at the beginning of
the application process, and we also have other issues that
enter into this as far as agreements made prior to the
application process as to how we would approach the permit
applications for what is known as the Cobb Loop Road.
In fact, I mention in my written testimony, but not in the
oral testimony, that while we were processing this application
for West Cobb Loop, we were also processing two other permit
applications for the east-west connector and there is also
another road to the north. And those were approved. And the
agreement was made at that point that these three applications
would stand absolutely alone. And that is another reason why we
obviously feel a need----
Mr. McIntosh. Let me make sure I understand--each of them
would stand by itself?
Col. Smith. Separate utility.
Mr. McIntosh. And you felt that that was not being
adequately pursued in this application, those prior agreements?
Col. Smith. Yes, sir.
Mr. McIntosh. Do you have adequate assurances now as the
county is preparing their new submittal, that those will be
followed?
Col. Smith. We will not know until we receive their
application.
Mr. McIntosh. Have you asked your staff to work with the
county as they prepare this new application?
Col. Smith. Absolutely.
Mr. McIntosh. So that they can understand the concerns?
Col. Smith. On almost all of these projects, we hold
extensive pre-application meetings to resolve these kind of
problems ahead of time.
Mr. McIntosh. What is your estimate as to the time it will
take to finish the application and reach a decision by the
Corps?
Col. Smith. I do not know. I would probably be guessing,
maybe I could ask for some help on that one.
Mr. Ogden. Typically we look at about 4 months, but in a
project of this magnitude with the ``concerns that it has,'' I
would not be surprised if the timeframe does not extend beyond
that.
Mr. McIntosh. But are you not aided in this by the fact
that you have already seen one application on it?
Mr. Ogden. Yes, sir, we have significant information in
here. The first thing we plan to do, and we discussed this with
Georgia DOT--excuse me, Cobb DOT--is to discuss the project
purpose again. As the Colonel stated, the project purpose was
very broad on this particular portion of the road. When I refer
to portion of the road, I am talking about the Loop Road, as it
has become known. In the new application, hopefully we can
focus on a more defined project purpose so that we can focus
more clearly on what Cobb County actually wants.
When we started pre-application consultation back in 1992
and 1993 on this project--on not this project but on the loop
road, period, we asked Cobb County up front, do you want to
approach this as a single project. Cobb County says no, we want
to approach it as portions of a road that would satisfy a
particular need. And when that happened, of course, they told
us that at no time--and we assured them that at no time, if
this is your approach, all of these points may or may not
connect, if that is your purpose. And now the purpose is to
connect it, which is fine, if this is the way it can be worked
out.
Mr. McIntosh. And let me repeat, I would find significant
problems if the Corps defines its mission to second guess them
on that purpose. I agree with you, you should get a very clear
statement from them on what the county's purpose is, but let me
strongly urge you not to second guess them in that because I
think they can make that best determination for the local
community.
Let me also request, Col. Smith, if you could update the
committee at the end of 4 months as to what the status of the
discussions have been and the review process, and if it takes
longer than that, then we will ask you for continued updates
after that.
Let me end my session of questioning for this round--I have
got some more on some other subjects--and turn now to Mr. Barr.
Mr. Barr. Thank you, Mr. Chairman.
I guess in many respect, Colonel, what our decisionmaking
boils down to, whether it is Mr. McIntosh, as chairman of this
subcommittee, whether it is the head of a Federal agency,
whether it is yourself, whether it is myself in my previous
role as a Federal prosecutor--it comes down to prioritizing the
use of scarce resources. And I think one of the primary jobs
that the citizens and taxpayers of this country expect of us
and have a right to demand is that we use those limited
resources and prioritize so that the most important work gets
done and that we do not spend a lot of their money worrying
about chasing after gnats when there are life threatening
animals out there, as it were.
Is there some justification that you can provide through
this forum today, or some explanation as to why among all of
the projects with which your agency is working or may not be
able to because of scarce resources, what great public harm,
how many lives would have been at stake, had Mr. Grady Brown,
who you heard from earlier, been allowed to keep his land in
the way that it was before it had been messed up inadvertently?
Why was that so all fired important to--as you have seen, you
heard from Mr. Shackleford here, who has indicated I think very
sincerely that he is interested in working more as a
partnership and working in major projects around the State, and
we have projects because apparently lack of resources you are
not able to move forward quickly--what was your decisionmaking
that felt this burning need to worry about Mr. Grady Brown's
property?
Col. Smith. Well, I guess I do not know the specific answer
to how we became aware of the particular problem with the
wetlands. I guess I could only state that as the laws are
crafted at this point, and I will certainly acknowledge that
Mr. Brown's situation is probably a unique one in many ways,
but as the laws are crafted at this point, once a wetlands is
created, the resource--I have very little recourse in making a
determination of whether these wetlands should or should not be
protected by investigating how they came to be.
Mr. Barr. I understand that and I understand and I
certainly presume that any project in which you are involved
meets the definition of your jurisdiction, falls within your
jurisdiction and a justification can be found for it. I am not
talking about that. I am saying among--say you walk into the
office tomorrow and you have 100 different matters with which
to deal, some involving thousands of acres, some involving, as
Mr. Shackleford has said, a project where lives and public
safety is at stake, and then you have a project where you have
land such as Mr. Grady Brown's here, where it is not hurting
anybody; as a matter of fact, it would have been better to
leave the land in the State that it was originally. I mean is
there any decisionmaking process that you can relate to us that
leads you to the conclusion that to the top of the pile goes a
case like Mr. Brown's? I just have a hard time among all of the
different projects on which you all could be working and the
very limited resources, why those sorts of projects are so
important that you take time away and resources away from
thousand acre projects and public safety projects.
Col. Smith. Well, I do not know that we--go ahead.
Mr. Ogden. If I may, I would like to attempt to answer
that. In our world, with the resources that we have, we set
priorities on permit applications, first priority. Violations
fall somewhere down at the lower end of the spectrum. Now with
regard to a project that would have an impact on human life,
that is taken under consideration during the review process. So
we do prioritize that with the resources and the persons that
we have to do that.
Mr. Barr. OK, how many lives were at stake in Mr. Brown's
project.
Mr. Ogden. There were none, to my knowledge.
Mr. Barr. Well, see, that is my point.
Another thing, and I must admit that, Colonel, your answers
to Mr. McIntosh's questions leave me a little bit mystified,
especially when I weigh them against your written words here.
You state, for example, on page 5 of your written testimony, in
talking about the remand to Cobb County to allow an opportunity
to submit a new modified application--and I commend you for
that and I do appreciate what I read and what I have heard
today about the Corps working with the county. But the language
that I find extremely troubling is where you say that you will
be holding meetings, ``to determine the purpose and need for
the new road project.''
Where in Federal regulation and the laws of this land is it
the job of the Corps of Engineers to determine the purpose and
needs for road projects in our communities? I am not talking
about the CFR, I am not talking about Memorandums of
Understanding or Agreement. I am talking about in the laws of
this land.
Col. Smith. Well, I am trying to find the exact words here.
Mr. Barr. It is about three quarters of the way down on
page 5.
Col. Smith. I only have four pages in my version here.
Mr. Barr. This is very strange, because I have your written
testimony here--would somebody show this to the Colonel--it is
talking about the remand to Cobb County.
Col. Smith. OK. Well, I guess I can--as interpreted by you,
I can certainly see why you might interpret it to say as you
have interpreted it, but I must just say that the reason that
is written like that is just so that we can meet with the
county and discuss this very important issue as relates to our
determination about the denial of the permit to begin with is
exactly what the purpose of this project is, has a key factor
in what areas we must consider under the regulations as to what
might be the least environmentally damaging alternative to meet
the purpose of the project.
I will certainly acknowledge that the need for the project
is not something that the Corps of Engineers necessarily has a
role in. But in having a pre-application meeting, the whole
purpose of it is to prevent any kind of miscommunications in
stating what--in putting it in the actual application, because
once we receive the application, we must deal with what we have
received. And in this particular case, for the West Cobb Loop
Road, we had to, under the purpose of the project, had to
consider other alternatives beyond which the county considered
to be alternatives in the specific corridor they selected to--
--
Mr. Barr. I think the feeling that a lot of the governments
with which you deal--a lot of the governmental entities and
certainly myself and I think judging from the chairman's
questions as well, I think the discomfort that we have with
that is that you are taking something, section 404 authority,
and the way you have just interpreted it and the way it is
written out here, there is virtually no limit to your power,
once you determine that, in your view, there may be a wetland.
You are saying that you then have the power to decide and to
look at what the purpose of the project is, whether there is a
need for it, and I just do not think that that was the intent
of the Congress or the previous administrations in this country
to give that power to the Corps. For the life of me, with all
the things you all have to do, I do not know why you would want
to subsume that, for heavens sake, but it may very well be and
this may be something that would be helpful to the Corps, that
we ought to go back, and maybe this is a benefit from having
these hearings, look at these laws, look at this huge body of
Code of Federal Regulations and these memorandums and so forth,
and just get back to some basics and clarify exactly what the
jurisdiction of the Corps is in this area, which I think is
what our State and local officials are saying, we do not mind
working on these things, we recognize that there is a problem,
but there have to be some limits to it.
Col. Smith. Mr. Barr, let me--I know Mr. Ogden wants to try
to respond, but let me take one last shot at trying to
articulate the issue of the corridors and the purpose of the
project.
Mr. Barr. Sure.
Col. Smith. As an example, if the project--permit
application had stated specifically that the purpose of this
project was to connect two specific end points along a route,
that has--that allows significantly different review and
analysis by the Corps of Engineers in reviewing that permit
application than if the permit application says the purpose of
this application or project is to move traffic from some
southern area to some northern area, in a broad range. I am
trying to articulate why it is important what the purpose says
of the project. The application that we received, that we
denied the application for, was not specific about the purpose
of the project. It did not say the purpose of this project is
to connect two different specific points with a route that
connects those two points. And as a result, we were limited in
what we had to consider in our analysis.
I do not know if that helps, I feel like I'm failing to
articulate----
Mr. Barr. Well, and I am not convinced that the problem is
yours. I think we may have put our finger on a fundamental
problem with the way this whole wetlands issue has developed
and it may very well be time now to go back and try and clarify
exactly what your jurisdiction is so that you have better tools
with which to work and to prioritize your programs.
Mr. Chairman, if I could just ask one other followup
question. I know you have some as well.
Mr. McIntosh. Certainly.
Mr. Barr. Again, Colonel, hopefully you will have this--I
do not know how I wound up with more of your testimony than you
have, but on page 2, the very last paragraph of your testimony,
you say ``Projects of major scope and which have potentially
large environmental impacts require individual permits.'' It is
my understanding just from having reviewed a lot of material
here over some period of time, not just today, that the Cobb
County project, the loop project, that there was no single
large environmental impact, that there were a lot of
potentially small impacts, as it were. Does the Corps
interpret, here again, their jurisdiction that even if there is
no single potentially large environmental impact in a road
project, if there are a certain number of small impacts, that
you sort of aggregate all those and say bingo, we have got a
major impact here, even though there is no one little thing
that we can point to?
Col. Smith. Yes, there are--in our regulations and
guidelines, we must consider----
Mr. Barr. Not in the law, but in--here again, we go back to
your guidelines.
Col. Smith [continuing]. Cumulative impacts. And so in a
situation where there are numerous minor impacts to the
environment for the analysis when taken in conjunction with one
another in a cumulative manner, that can be determined to be a
major significant impact.
Mr. Barr. Do you assign a numeric value to each of these? I
mean, if you have a roadway that is 20 miles long and there are
10 little minor impacts, how does that all of a sudden become a
major one? What is the threshold?
Col. Smith. Can you address that?
Mr. Ogden. Let me attempt to address that, sir.
The way we would look at that is that you may have 10 minor
impacts to wetlands, there might be wildlife corridors
dissected as a result of that, there might be historic
properties along the way that would be impacted as a result of
that, there might be problems with water quality as a result of
the project--and I am just giving hypotheticals now. When we
begin to add up all of those ``impacts'' then they could come
out to be a significant impact.
Mr. Barr. It is not really scientific.
Mr. Ogden. That is right.
Mr. Barr. I did not think so.
Mr. Ogden. It is based on professional judgment.
Mr. Barr. I understand. Thank you, and I appreciate the
time, Mr. Chairman.
Mr. McIntosh. Thank you, Mr. Barr.
Col. Smith, I have several somewhat unrelated questions,
but let me start with the testimony we heard earlier about the
Fish and Wildlife Service sending a letter to Mr. Ogden
indicating they would no longer participate in the field
meetings. What is the Corps' position on whether that is
helpful or not. One of the things that we worked with in the
Bush administration, and I understand that President Clinton
has continued this in the wetlands area, is an attempt to
maximize coordination among the different agencies involved and
try to make sure that there is a process in place so that you
do not have one agency waiting outside that coordination
process and then saying, well, everybody else agreed to your
project, but we did not, so you have to start over again.
Could you comment on that development? It is news to me,
and I think the subcommittee which also has jurisdiction over
the Interior Department may be looking into that.
Col. Smith. I think it is a relatively new development and
I guess I would say in a general sense that the Corps' position
is that in every case where we can improve communication and
dialog and learn about problems earlier rather than later, we
support that kind of process. I just was quickly updated on
this particular issue and I certainly cannot and do not want to
even try to speak for the Fish and Wildlife Service, but I
understand that their issue with regard to attending the
meetings is that they were not going to be able to accomplish--
or they had some issue with what the stated purpose of the
meetings were and that they could not accomplish--we were not
going to be able to accomplish in those meetings what we said
we were going to do. So they saw their time better spent on
working off the backlog. And I am probably speaking out of
line, like I said, I do not want to talk about what their
position might be, but that is my brief understanding.
Mr. McIntosh. And the letter mentioned something about
saving time and working on the practical alternatives report
backlog, which I was unfamiliar with as well. But in general,
what was their concern with the stated purpose of the meeting?
Mr. Ogden. The specifics of that is the Fish and Wildlife
Service did not feel by visiting the site they would come away
with the sense that the preferred alternative would be
determined in the field. They felt that even though we would go
out there and look at it, suggestions and recommendations would
be made and then the applicant, in this case, Georgia DOT,
would come back with that same particular application or
alternative.
Now----
Mr. McIntosh. So they are concerned that by attending that
meeting, it might imply that something discussed there is being
agreed to and they wanted to reserve the ability to think about
other alternatives, I guess?
Mr. Ogden. I guess that is a fairly good overview of it.
Mr. McIntosh. OK. And I do not mean to ask you to respond
on their behalf. We are going to pursue that with them. I guess
the question I would like to ask, maybe Mr. Ogden and all of
you could tell me, in your opinion is it helpful to have
everybody at that field meeting?
Mr. Ogden. We find that they are very helpful in that we
can resolve many issues on the site at one time rather than
keeping the maze of letter writing campaign going back and
forth. The system has worked fairly well, obviously not as good
as many would like, but it is an attempt to communicate. We are
mandated by law to have the resource agencies involved in these
processes. If we issue a permit with impacts to their laws,
then of course that would be elevated, or it would be denied up
front, to be honest with you. So we have to get their input.
Mr. McIntosh. OK. Mr. Ogden, do you concur with that?
Mr. Ogden. I am Ogden.
Mr. McIntosh. Oh, I am sorry, they told me the other way
around.
Col. Smith. He is Mr. Hough.
Mr. McIntosh. Excuse me. OK, Mr. Ogden.
And Mitch King had written you the letter. I am going to
ask that that be included in the record today and we will
pursue that with the Fish and Wildlife Service to find out what
is going on.
[The material referred to follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. McIntosh. A second area that came up--occurred to me in
listening to some of the testimony of people who had had
problems in dealing with the Cease and Desist Order. They
mentioned that their consultants and engineers were unaware of
some of the changes in the standards and that the local
government, I guess particularly Bartow County Health
Department was telling, I think it was Mr. Dabbs, that they did
not realize that there might be a process that they had to go
through with you. Does the Corps have an effort in, I guess,
information dissemination, either to practitioners in this
area, people who are working in construction in the engineering
side, or to the local governments who also issue permits, to
try to keep them up to date as changes are made, like on the
changes in the nationwide permit?
Mr. Ogden. If I may, when the new nationwide permits came
out in February 1997, each Corps district including Savannah
District, had the requirement to send out through our public
mailing list these changes. And our mail-out is something in
excess of 1,500 on our mailing list. So practically every
community, every conservation group, every citizen on that
list--and every citizen in the State is not on that list, it is
by choice--does get that information. There are certain
workshops held around the State that we have had and we invite
people in the business community to come so that they can sit
in and participate in this information process. That has been
done throughout the State of Georgia since these new
regulations went into effect. I do not know what else we can do
to get that information out to the public.
Mr. McIntosh. Are some of the engineering firms also on
your list?
Mr. Ogden. Yes, sir, many of them are.
Col. Smith. I would also add that there was a public
hearing conducted by the Division Commander of South Atlantic
Division here in the Atlanta area with regard to the nationwide
permit changes. Again, we can apologize for folks not getting
that word, but we made very clear, conscious efforts to try to
get the information out there.
Mr. McIntosh. And I think that makes sense. I guess in this
particular case, there has been a change from when the project
started and that presents some particular problems.
Let me ask you Col. Smith, to address another question. The
cost of delays are enormous, and we heard testimony earlier. I
think everybody would understand that, because when you are
developing a site, you are often doing it on borrowed money, so
you have got time value of money to deal with. Is there a
process in place where the Corps has switched from an approval
process to an enforcement process, issued a Cease and Desist
letter or whatever the step is, where you try to expedite
resolution of that, at least as to areas where the Corps may
not have jurisdiction or there is a question of jurisdiction
that needs to be resolved?
Col. Smith. Well, I would refer again to what Mr. Ogden
said earlier as far as our overall priorities, is our----
Mr. McIntosh. It sounded like enforcement was lower down on
the totem pole.
Col. Smith. Enforcement is lower on the totem pole.
Priorities are for--permit applications are the highest
priority, but within all of that, obviously we can work to do
better and minimize impacts. And if these particular issues
with major impacts are brought to our concerns, we will try to
respond wherever we can in as rapid manner as we can. It is an
issue that every agency has in trying to maximize its output
responsiveness with a limited staff.
Mr. McIntosh. Let me urge you to think about--and in
particular on that Cease and Desist Order and others that bring
things to a standstill in development whether there might be a
way to expedite that. And I do not know if that means
reordering your priorities or focusing in on a management of
the time that elapses on those, because there is a particular
cost involved once somebody has started a project, that means
they have signed the loans, they are not waiting for permit
approvals in order to get the money flowing and so there are
some very serious costs that can be incurred, and you might
want to take all that into consideration. Just kind of real
world effects, in establishing that priority within your
office. And I understand the difficulty when you have got
limited resources and you have got a lot of different things
that staff has to review and sign off on. But that struck me
earlier as something that could be particularly taken into
account.
And in that line, I ask you to respond to the other
criticism that was leveled was by Mr. Shackleford, who said
there is a lack of ability to make decisions.
Col. Smith. Well, I would have to disagree. I think we have
the ability to make decisions wherever possible and I guess
what we are charged in the field here as executing the program,
we balance trying to make sure all the concerns per our
guidelines and the regulations and law that exist are taken
into account, so that we can in fact approve permits. Our goal
is to approve permits, not deny permits. And I think our record
shows that statistically, we do a pretty good job of that, and
very seldom, in fact, wind up denying a permit. So I guess all
I can say in response is I feel we are fully capable of making
decisions and we make them wherever we--in as timely manner as
we can and in a balanced manner with regard to our
responsibilities under the Clean Water Act.
Mr. Hough. Mr. Chairman, if I might?
Mr. McIntosh. Yes.
Mr. Hough. I do not recall Mr. Shackleford's comment being
directed at the Corps of Engineers.
Mr. McIntosh. It was a general comment about the process, I
think that is right.
Mr. Hough. We might ask him. I do not recall that being
directed at the Corps, it was directed at someone else.
Mr. McIntosh. Mr. Shackleford, do you want to elaborate?
Mr. Shackleford. Simply to the point, the Corps issues the
permit, the Corps has the responsibility to take into
consideration input from the other agencies, but ultimately the
Corps has to make the decision, so they have got to be able to
work through the process, they have got to be able to deal with
15 month delays on PARs. So you heard me say that they are a
prisoner of the system. They need to be able to deal with the
system and so some of the blame has to rest with the Corps.
Primarily it rests with the agencies that have review process.
I want to give you one example. I talked about the
situation up at Homer. U.S. Fish and Wildlife tried to
blackmail us--the purchase of 2,900 acres between that bypass
road and the core center of that town, to mitigate 7\1/2\ acres
of wetlands--2,900 acres of upland. Col. Smith's predecessor,
Col. Boy, ultimately turned that permit down because it was
determined there was a viable alternative that essentially
dismantles the town.
Mr. McIntosh. That is pretty strong language, Mr.
Shackleford.
Let me tell you this, I do think you are correct and there
are problems in both the way the system is designed where you
get the Fish and Wildlife Service and EPA having effectively a
veto over Corps decisionmaking, but then I think there is some
valid concern there that the Corps needs to, within the system
that is flawed in its design, needs to work to reach those
decisions in a way that is good for the public.
And believe me, this is coming from someone who tried for a
long time to say EPA should stay out of it and we should allow
the Corps to make these decisions on their own, because in fact
from my perspective, back when I was in the Bush administration
and today as a Member of Congress, the Corps does have the
ability to do that and your perspective of trying to grant
permits rather than deny them is one that was appreciated. So I
think there is an equal measure of concern on all sides there.
I have no further questions on this. Mr. Barr, do you have
further questions of Col. Smith?
Mr. Barr. Thank you, Mr. Chairman, just two quick things.
To go back, Colonel, to Mr. Grady Brown's situation, would
you be prepared to tell him today that in the great scheme of
things and the great list of priorities that you all deal with,
would you be prepared to tell him today that he can simply
restore his land to the condition in which he found it when he
purchased it?
Col. Smith. No, sir.
Mr. Barr. I have this nasty habit of always going back and
trying to find things in writing and let me just mention one
other of your documents, and it is not really a question, Mr.
Chairman, although if you would like to respond, Colonel, I
certainly would want it. It simply follows on to my earlier
questioning with regard to your written testimony and I think
this is again an illustration of the problems that counties and
other governmental agencies are having dealing with the Corps.
This is part of the document package dated January 14, 1997
to Mr. Jim Croy, and it has to do with the Cobb County project
that has consumed a great deal of our time today. And in your
part one introduction of the background materials that
accompany your letter to Mr. Croy, under paragraph (h) it talks
about the basic project purpose. And this is what we kind of
come back to. It says, ``We have considered the applicant's
reported project purpose and need.'' However, then it goes on
in the next sentence to say, ``The basic project purpose as
determined by the U.S. Army Corps of Engineers,'' and then it
goes on. This is, I think, the confusion and this is, I think,
the root of at least some of the problems that we are seeing
here, in that the Corps is, for some reason, feeling the need
to make independent determinations of the needs in our
communities for these projects, notwithstanding the fact that
the State agencies, the local governmental agencies' may have
already determined that in their view, based on the needs of
their citizens in the community, they need a road project. And
then they come to the Corps and the Corps conducts an
independent study and analysis to itself determine whether
there is a need for the project or what the purpose is to then
determine if it fits within what the Corps views as its
jurisdiction.
Again, all of us may be wrong in this, I do not know, but
this is really the genesis for a lot of the confusion and
perhaps even a great deal of wasted time and money, and is
something that I know I want to look into further and perhaps
highlighting some of this. And again, in fairness to you all,
it may be a problem for you all too in trying to determine and
decipher exactly what your jurisdiction is. But I think it is
much broader in practice than it was intended by our Government
and the Congress in passing these laws to be.
And I appreciate you being with us today, and again, if you
would like to respond to that, that is fine--you do not have
to.
And I appreciate--before we move into the general public
comment period--very much your bringing these hearings to the
Seventh District of Georgia, Mr. Chairman, and giving us the
opportunity to let you and our colleagues know some of the real
problems out here in the real community that we have to deal
with.
Mr. McIntosh. I appreciate that. Col. Smith, did you want
to make a comment?
Col. Smith. Well, I think in response, the only thing I
would say is that clearly it is not my intent, as a district
engineer, to try to determine what the needs of a local
community are with regard to road projects. I do not believe
that that is in my purview and if that is the way the language
is written there, then probably we are not articulating it
well. I see my mission as one of regulating within my
jurisdiction the law under the Clean Water Act to find a way
for a local community to find a way to have a project that can
damage the environment in the least manner and get the project
constructed, and balance those different and competing--in many
cases, competing requirements of the Clean Water Act and the
requirements for development in the local community.
Mr. McIntosh. Let me followup on one thing and then I will
be done. With regard to Mr. Brown's situation, you indicated
when Mr. Barr asked if you could allow him to go back and
restore his land to the way it was--what can he do to have the
ability when another entity of the Government has come in and
changed the nature of his land, to have it restored back to the
way it was?
Col. Smith. I think that what has happened as in the case
of Mr. Brown, which is a very clearly unique case and I think
probably we can all relate to Mr. Brown and say it is a very
unfortunate case, but it is a case where wetlands have been
created, and wetlands are protected under the law and
therefore, his avenue to have the wetlands removed would be to
get permission to do that, a permit.
Mr. McIntosh. And it is the legal position of the Corps
that wetlands that are artificially created are protected the
same as naturally occurring one?
Mr. Ogden. May I answer that?
Col. Smith. Go ahead.
Mr. Ogden. In the law, it does not differentiate between
naturally occurring wetlands or wetlands that might be created
as a result of manmade activities, it does not differentiate.
Mr. Barr. Can you all not use something called common sense
here? [Laughter.]
I mean that as a very serious question. [Applause.]
I mean we have the situation, and apparently you all do not
disagree with anything that Mr. Brown has testified to in terms
of his basics as just related by Mr. McIntosh, and you are
saying notwithstanding that, simply because the law does not
differentiate, we in the exercise of independent common sense
cannot do so.
Mr. Ogden. He can apply for a permit and we can go through
the process. I do not know how we can circumvent the law.
[Applause.]
Mr. Barr. OK. I do not think you are circumventing the law,
you are saying that the law does not say exactly--does not
force you to do exactly what you have done here. We are saying
is not common sense, in addition to, as you indicated earlier,
your professional judgment, should that not be part of the
equation too? A common sense interpretation of the law.
Mr. McIntosh. I think you could make an argument that at
the time the law was passed and even extended by regulation to
his property, it was not a wetland and the Government owes him
the obligation to restore it to the way it was at that point in
time. And I think that would give you ample authority to make
the decision that yes, if we need to now issue a permit to do
that, we can do it.
Mr. Brown. Let me ask you something. Could I ask a question
of this engineer? Now that might not be lawful or might be out
of order, but I would like to ask him something.
Mr. McIntosh. Sure, Mr. Brown.
Mr. Brown. I would like to know how you found out, the
Corps of Engineers found out that was wetland? Do you know?
Col. Smith. I do not know the answer to that.
Mr. Brown. Either one of you know? Do you know what they
told me? The Corps of Engineers came out there and said at
first he came out there and saw wet land there. Well, whenever
he came out there, the ditch was already dug and it was not wet
land, I mean the water was running down in the stream. I asked
him, I said, you said you came out there and saw it. You did
not see any wet land, did you? I said who--what did you do,
what happened? He said I got an anonymous call. That is the way
you all got it, through an anonymous call.
Have you all got plenty of time that every time somebody
calls you to run out and see about somebody? There in Villa
Rica where it is hurting nothing. It is my land and I bought it
in 1943, around in the early 1940's. I have paid taxes on it
for all that amount of years and here it is, an anonymous call
can come down there and get my land--I mean put water all over
my ground, plug up ditches. It does not make sense, it does not
make common sense. It is a bunch of people that are taking this
country over and people are getting tired of it. [Applause.]
Voice. Why do you not go after the State, they are the ones
that caused the problem?
Mr. Brown. The State did not have anything to do with it.
The DOT had to go out there and fill up that ditch after they
dug it. That does not make sense.
Voice. May I speak?
Mr. McIntosh. Let me now--actually we are going to move on
to the open microphone where people will be able to speak.
Mr. Ogden, did you have any comment with respect to that? I
will give you the final word.
Mr. Ogden. About the only thing I could say about that, I
personally was not involved in that site visit, but wetlands
are determined based on a three-parameter approach. We look at
hydrology, vegetation and soil conditions, and even though you
might pull the hydrology away by putting a ditch in, the soils
are not going to change overnight and there will be remnant
vegetation there for sometime. So to this specific case, I
could not say who made the determination on my staff or how it
was made, but I would assume that there were wetlands there and
the ditch was dug and it removed the hydrology and as far as we
are concerned you still have a remnant wetland there.
Mr. McIntosh. Well, I would urge you, if Mr. Brown puts in
a permit, to study this and determine whether there is a
flexibility in the law to allow him to restore his land to the
way it was. And I am pleased to hear you say that this is a
relatively unique problem that comes up.
Let me close out this portion of the hearing and once again
thank you, Col. Smith. I know it is not always pleasant, but I
appreciate your willingness to listen to people.
And now we are going to move on to the open microphone
portion of the hearing. We were, I think, scheduled to close
out at 4 but this has taken longer than we thought, so we will
go until 5 and get as many people as possible.
I will call forward names based on the sign-up sheet that
was out there with the staff and we will ask everybody to
please keep your comments to 3 minutes and Bob and I may have a
question or two for you after that.
The first person who had signed up is Ms. Laura Lester, if
she is available. And please, if you could come forward to this
front podium, so we can record it for the record. And then
perhaps Karen Barnes, who is the staff assistant there in the
powder blue suit, if folks could identify themselves to her and
line up so we could rapidly go through the list of people, that
will allow as many people as possible to participate. Thank
you, Ms. Lester, if you could share your remarks, and I would
ask you to keep it to 3 minutes, if you could.
STATEMENT OF LAURA LESTER, WEST COBB COMMUNITY COUNCIL
Ms. Lester. I hope it will be 3 minutes. I do have a title
for my paper and although I did not have time--I was so busy
putting up green signs everywhere letting everybody know that
the meeting was held today--that it is not proofed, but I
certainly want you to have a copy of it and will certainly
forward one that is proofread.
Mr. McIntosh. We will put the whole paper in the record for
you also.
Ms. Lester. Thanks. ``Checks and Balances versus Unchecked
Government Power'' is the title of my brief remarks. The
subtitle is ``Local, State and National Governments Use the
Road of Power and Wealth in Search of Economic Development
While Citizens Rely on their Rights to Assemble, to Speak
Freely and to Petition the Government in Search of Quality
Living.''
Welcome to Georgia, Chairman McIntosh. We are the largest
State east of the Mississippi and home of more trees than any
other State in that region. The beauteous pastoral character of
western Cobb County and the peace and tranquility of its
citizenry are the subject of my brief address today.
Chairman McIntosh, Karen Barnes of your staff asked me what
my position was when I called your office to request being
included as a witness. Was I against the West Sandtown route
chosen by the Corps of Engineers? I responded that my
organization, West Cobb Community Council, had organized a
steering committee, held community meetings and I wished for
the entire range of views to be presented. Ms. Barnes said the
list was unfortunately already filled. However, I could wait
until the end for the open mic panel.
The staff member at the office of Representative Bob Barr
said the list of witnesses was being done in Washington, and
only residents along West Sandtown Road were invited. I
responded that I lived along West Sandtown. Then I was told
that potential names of residents were from Commissioner Bill
Cooper.
The staff member at the office of Chairman Byrne said they
had no involvement in the witness list and had not received it.
The staff at the office of Commissioner Cooper said she was not
involved in the witness list, but she would have the
commissioner call me.
Ms. Barnes from Chairman McIntosh's office faxed my office
a tentative list of witnesses 2 days after our initial talk. I
carried copies to the Atlanta Journal Constitution and the
Marietta Daily Journal, who had received none as well.
Neither John Wiles nor Bill Byrne, neither the Government
witnesses for Cobb County nor the State of Georgia have met
with the organization that we formed or with the remnants of
Protect West Cobb or with any of the affected subdivisions or
with the school parents or with the church members along West
Sandtown Road or with those on nearby Irwin Street or John Ward
Road. Commissioner Cooper did attend one of our meetings on
February 20, 1997, held at Cheatham Hill Baptist Church. Some
of the residents who opposed the Noses Creek route were present
and spoke, as did a large group of people living directly
adjacent to or off West Sandtown Road. I oppose efforts to
divide and conquer between neighbors. I oppose efforts to
present one side only of a many-sided issue. I oppose posturing
of a political nature.
I have three points to make. The first is to question the
traffic study done by Moreland Altobelli Associates, Inc., in
January 1994 in cooperation with the Cobb Department of
Transportation. Cobb DOT used this document almost exclusively
as the basis for their decision to build a stand-alone four-
lane highway. This study forms the heart of the West Cobb Loop
Permit Application Support Document. I was told that copies of
this document were probably not available because of
litigation. I filed under the Freedom of Information Act and
made copies of portions. I find the study irretrievably flawed.
The study does not look at traffic patterns in a connected
pattern for the region, but specifically centered and limited
the study to an area on either side of West Sandtown Road.
Traffic counts were judged superficial by eye witnesses. These
witnesses report that the West Sandtown Road traffic count was
done only at the dropoff in the morning for students attending
Dowell Elementary School, with over 700 students arriving for
school. Computer projections filled out the numbers used in
volume/capacity ratios. The centering and the counts were major
factors in the results.
The Army Corps of Engineers did not say this today, but
they are much more critical of the study. The denial states
``There are problems with data interpretation related to
improvements shown in the volume/capacity ratios. It appears
that invalid data which prevails in the Permit Application
Support Document was used by the applicant to support the
preferred corridor alternate.''
This harshly critical statement means that the routes
presented were all based on improper and inaccurate
information. Neither Noses Creek nor West Sandtown were
properly studied, presented and evaluated.
The second point is that I find the intended road to be
essentially a developmental highway, not a transportation
corridor. This is a segment of a huge road proposal designed to
link the interstates and the shopping mall areas, Town Center
and Cumberland. Others beside me have stated the viewpoint that
an environmental impact statement was required. In 1994,
Protect West Cobb wrote in their response to Joint Public
Notice required by the application that this was ``an improper
segmentation of a larger road construction project.'' They
state that due to the magnitude, the project constitutes a
major Federal action significantly affecting the human
environment such that an environmental impact statement is
required pursuant to the law.
Now most of these segments have been built. Denial of the
whole scope of the road project is limited to what segments
remain.
In the 1980's, Wayne Shackleford characterized roads as
links to malls.
Mr. McIntosh. Ms. Lester, I am going to have to ask you to
summarize the rest of your points.
Ms. Lester. I certainly will, it is very short.
I find this a transparent effort to support
commercialization of existing residential land. I call for an
environmental impact statement at this juncture.
The third point is a critical look at the stand-alone
nature of the road as a Cobb taxpayer. It is unfair to expect
Cobb residents to bear alone the cost of relieving traffic
congestion of our Paulding County neighbors. A new traffic
study will in all likelihood indicate the need for a corridor
and these commuters do account for a tremendous amount of
consumer purchases in our malls. But the designation as a
stand-alone did disguise the pattern and the purpose.
In summary, I find three errors in the process of planning
and building these roadways through west Cobb. There is
intentionality in the error of the West Cobb Traffic Study and
its subsequent use. There is intentionality in the error of
segmenting the project artificially to avoid the study of
environmental impact. There is error in the assignment of
county taxes to a regional road plan.
I recommend that the new application for a permit be based
on a regional traffic study.
I recommend a study of the impact of a new permit
application on the human environment.
I recommend that the State of Georgia become a planning and
funding partner.
It is unjust to tax the citizens of Cobb for roads that
have a State purpose.
In conclusion, I cast no stones and I blame no persons or
institutions. It is fortuitous and providential that we
citizens are able to make use of the checks and balances of
power between local, State and national governments. My
neighbors and I choose to live out here on West Sandtown Road
to enjoy the countryside, the natural beauty and the quiet. We
want the most to say about our pursuit of happiness.
[Applause.]
[The prepared statement of Ms. Lester follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. McIntosh. Thank you, Ms. Lester, we appreciate that.
Represent Barr, did you have any questions?
Mr. Barr. No.
Mr. McIntosh. Thank you. The next citizen witness on the
list was Erin Bout-heilier. And let me mention a couple of the
other people so you can be on deck, as it were. George Morgan
will be third and Dr. Sue McCuskey is fourth. Is Erin here?
[No response.]
Mr. McIntosh. OK, let us move on to George Morgan. Mr.
Morgan. And then it will be Dr. McCuskey.
STATEMENT OF GEORGE MORGAN
Mr. Morgan. Good afternoon, Mr. Chairman, Congressman Barr.
I am George Morgan, I am a general partner in SMG Development
Associates and president of George S. Morgan Development Co.
One of our most recent projects, after 25 years of
development in north Atlanta, is Hamilton Mill in northeast
Gwinnett County. Hamilton Mill is a 1,400-acre planned
community with approximately 2,500 homesites, a true home town.
We also have two golf courses, a town center shopping center
and other amenities that make Hamilton Mill a self-contained
residential community.
In June 1995, my engineer secured a nationwide wetland
permit from the U.S. Army Corps of Engineers for Hamilton Mill
under the nationwide permit regulations. The nationwide permit
delineates existing wetlands in the total site consisting of
17.6 acres and allowed disturbance of 4.1 acres of the existing
wetland, authorized creation of a 4.4 mitigation area and
placed over 15 acres of additional land in perpetual restricted
covenant. I was told by the Corps of Engineers staff at the
time that my compliance with the national wetland permit
satisfied their requirements. While I philosophically do not
agree with the taking of private land without just
compensation, I accept the conditions of the national wetland
permit.
The problem I am now having is that certain inherent
changes must occur in developing a large project such as
Hamilton Mill, over a 6 to 8 year period. I am told by my
consultants and engineers that the Corps of Engineers now has
changed their wetland permitting regulations by reducing the
maximum allowable impacted areas for a single project from 10
acres to 3 acres. My consultants say that under the revised
regulations, I must reapply to the Corps of Engineers for an
individual permit for any disturbed areas. According to my
consultant, any other developer who has been through this
process, the individual permit can take from 6 months to a year
to finalize, not to mention the extra cost. I just might point
out it took me 2 years.
The revised nationwide permit regulations are patently
unfair, unacceptable to those of us who earn our living in the
marketplace. I am very appreciative of the House Government
Reform and Oversight Committee's interest in this important
matter and I am asking for review and reform of the wetlands
permitting process.
Reforms that would be most beneficial to a large project
such as Hamilton Mill are:
(1) A permitting system that is flexible and lends itself
to easy and fast revisions for impacted areas.
Recognition by the regulators that large projects that have
larger wetland areas should be allowed proportionately larger
disturbed areas under the national wetland permit. For example,
a 1,400 acre is subject to the same maximum allowable
disturbable area of 3 acres as a 10 acre tract.
These two changes in the process would be of great value to
developers such as myself and I believe would greatly help to
preserve the wetlands. Keep in mind that I am a residential
developer, I develop a place for people to live. We consider
wetlands, we consider any area that preserves the natural
beauty of a property to be a great asset. So therefore, we do
everything in our power to work within the confines of the law
to preserve those things and to make great access to those
things. And I will point out that we have had numerous good
working process with the Corps on other projects and we have
turned these areas into some of the highlights of our
development.
But this particular project, I do not intend to resubmit
this project to the Corps of Engineers for a chance to review
this again, since we have made a deal to mitigate approximately
four to one ratio. In other words, we set aside approximately
20 acres to their 4.5 acres. The wetlands that exist on my
property, which were minimal at best, this is an extraordinary
cost for me and it is an extraordinary cost of the public
taking of private property, which no compensation has been
given to anyone, not to mention the process took, as I
mentioned, almost 2 years and several hundred thousand dollars
in both time, interest, engineering fees to accomplish, due to
the bureaucratic indecision of the Corps.
It would be most unfair to allow the Corps another bite at
the apple. We are all sensitive to protecting our environment,
but at the same time, the cost is ultimately passed on to the
consumers, the people who live at Hamilton Mill.
I just want to point out that I think that what Mr.
Shackleford said is really the issue here. We play by the
rules, we apply, we do everything as we are told, we set aside
land, we covenant that land for eternity, never to be done
anything with, we strike a deal and the end result is there is
no closure, it is not over, it keeps going. If the rules
change, they get the chance to redo it.
I say a deal is a deal and let us stick to it and then I
think that everyone could play by the same rules and there
would not be near the indecision that takes place now within
the Corps. I am not sure if this indecision comes through the
EPA or comes from the Corps itself, but I can tell you on many
personal instances they have told me that they interpret those
rules as they see fit and if they see that there is a change,
whether it be political or whether it be from a written thing,
they will make those changes on their own accord. So, I feel
that the rules just keep changing and I am asking you in any
way, shape or form to establish a set of rules so we all know
how to play this and do it correct.
Thank you for your time.
Mr. McIntosh. Thank you very much, Mr. Morgan.
Our next witness is Dr. McCuskey and on deck would be Glynn
Groszmann and Doug Congleton.
STATEMENT OF DR. SUE MCCUSKEY, ENVIRONMENTAL CONSULTANT
Dr. McCuskey. Thank you. My name is Sue McCuskey, I am with
an environmental consulting firm here in Atlanta and I have
been in environmental consulting for 19 years. I was asked to
come today and speak by the National Association of Industrial
and Office Properties.
And essentially I have a lot of experience with the wetland
permitting process. I know the wetland folks down in Savannah,
I have been out in the mud and the dirt with those guys and
also the folks in the Atlanta office. I have been involved with
a lot of the resolution really of wetland violation projects
with both the Corps and the EPA folks. I have a lot of respect
for the individuals involved in this process. And I think it is
clear from what we have heard from everyone today here that no
one is opposed to wetlands, no one wants to destroy wetlands,
to endanger our water quality. That is not the purpose. On the
other hand, we do have the Clean Water Act and the purpose of
that Act is to define and direct protection of what is required
under the law.
In the case of the Clean Water Act, there are lots of
different guidances that have come out in addition to the law.
These include the section 404(b)(1) guidelines, regulatory
guidance letters, a number of different even internal memos
that help define some of the terminology in the wetland
identification. So there are a number of other things that the
Corps lives with and the EPA lives with, and as a consultant, I
live with as well.
One of the problems that we have all discussed together,
and I think we would all agree with is that there is no
distinction between a low quality wetland and a high quality
wetland. The people who do not deal with wetlands on a daily
basis expect a wetland to look like the Okefenokee Swamp and it
does not look like that. There are many times when a wet place
in the back of a shopping mall is a jurisdictional wetland
according to the law, and you look at the three parameters and
yes, it is legally protected. But there seems to be--as you
mentioned, Representative Barr, there ought to be an element of
common sense. And I think that we are probably all in agreement
with that.
When we talk about destruction of wetlands or, for example,
on the West Cobb Loop road project, potential impacts to 8
acres of wetlands, we are not looking at an 8 acre forested
swamp with lots of wildlife habitat. We are looking at 13 small
pieces of the edges of wetlands and tremendous cost and effort
that has gone into protecting as much of those wetlands as
possible. If the Corps' sole avenue of resolution is to look at
no impacts to wetlands, then yes, you would have to ignore
displacement of citizens on West Sandtown Road. But if you were
to look at the bigger picture, then you would look at human
impacts as well as wetland and wildlife impacts.
So we need to have a way to look at the value of different
wetlands in order to interpret the amount of impact, regardless
of the total acres.
I think another thing is that a lot of people do not
understand the different kinds of permits. There are two major
kinds--the nationwide permits, which are specifically designed
for what is legitimately recognized as minor impacts. And they
were designed just in order to keep the Corps from being
totally tied up in impacting small areas when people wanted to
extend their driveway or some minor issue. And then there are
the larger permits which are the individual 404 permits.
Keep in mind that with the change in the nationwide
permits, most people focus in on the nationwide 26, which was
the most commonly used nationwide permit, and it used to allow
impacts up to 10 acres if you had a body of water that had less
than 5 cubic feet per second flow. Most people do not know a 5
cubic feet per second flow if they ran into one in the mall.
And I usually define it as something that I could jump over. So
if your creek is bigger than that, bigger than something I
could jump and it has greater than 5 cfs flow, then the
nationwide 26 would not apply. Unfortunately, that makes it
much more difficult to conceptualize where your permit might be
a problem. So any impacts to a wetland associated with a larger
body of water is going to require an individual permit, even if
it is 0.06 or whatever it is.
There have been permits filed on individual basis for
wetlands the size of a tennis table.
I am out of time.
Mr. McIntosh. Go ahead and summarize your comments.
Dr. McCuskey. OK. Because of the change in the allowable
impacts, allowable acres of impact on the nationwide 26, a lot
more parties are going to be involved in that and the Corps
will need more staff in order to evaluate and process those
impacts--excuse me, those permits. Also, you can no longer
combine several nationwide permits, even though they may have
been individually assumed to be of minor impact, when they are
combined in the 26, you have to combine the acres.
In addition, there are more permits required of pre-CN,
that is a pre-construction notification, or restoration plans,
and 18 of the 39 new nationwide permits require something
called a compliance certificate even if you have not had to ask
for a permit in advance.
The second kind of major permit is the individual permit
and I have heard people call for an environmental impact
statement. Actually an individual permit is an environmental
assessment, it is the same as a NEPA EA. An EIS is
distinguished only from an EA in that an EIS requires public
participation notification. On the West Cobb Loop project,
there was already public notification. That aspect of a NEPA
process was already satisfied.
As was mentioned earlier, on an individual permit, there
are many, many issues beyond wetlands that are addressed,
including the need and purpose of the project, traffic counts
and so forth. I am not qualified to evaluate traffic. I am not
qualified to evaluate the species of fish. I know wetlands, I
know a lot about wetlands but I could not work for the Corps
and give my full hearted evaluation of a permit that discussed
seven or eight different major topics. No one person writes an
EA or an EIS or an individual permit. It takes the working
together of a number of skilled professionals and that is why
it makes it very difficult for them to then come up with a few
people from the Corps who are very well intentioned and very
good at recognizing wetlands, but may not have the skills and
background to do the rest of it.
So let me just say that I think that in the permitting
process there are many, many shadings to it that make it very
difficult and particularly for linear projects where you have
roads or sewer lines because you cannot define a single and
complete project if you are building a road from here to
Tennessee unless you happen to have funding for the entire
length, and in most cases that does not happen.
Thank you very much.
Mr. McIntosh. Thank you very much, Doctor, we appreciate
you coming by and testifying. Next would be Glynn Groszmann and
on deck would be Doug Congleton and Jay Weismann testifying for
Sam Collier.
STATEMENT OF GLYNN GROSZMANN, SIERRA CLUB
Mr. Groszmann. Good afternoon. My name is Glynn Groszmann,
I am the water issue leader for the Georgia Chapter of the
Sierra Club. I am also the conservation leader for the local
group of the Sierra Club. These are volunteer positions. My
occupation is a self-employed environmental consultant, I am a
certified profession in erosion sediment control. I address a
number of issues affecting aquatic resources, including
wetlands delineation and permitting. I am speaking representing
the Sierra Club.
The Georgia Chapter of the Sierra Club supports the
provisions of the Clean Water Act which require the protection
and conservation of wetlands and we support the U.S. Army Corps
of Engineers' efforts to administer the act's provisions for
regulating and permitting activities that affect wetlands.
Wetlands are vital natural resources that provide crucial
benefits to the community, including flood control, filtering
and conversion of toxic chemicals, trapping of sediments and
natural areas for fish, wildlife, recreation, greenspace and
biodiversity. When wetlands are destroyed, it is the people of
the community who pay the price for their loss, while those who
cause the destruction reap the profits. It is the people who
have their properties damaged by the increased flooding who pay
for flood controls and higher insurance rates, who pay the
higher costs of drinking water treatment, who pay to have
sediment removed from their lakes and reservoirs and who lose
the temperature control, oxygen generation, natural
environments and recreation benefits that wetlands provide.
The Sierra Club has a slogan that says, ``Not blind
opposition to progress, just opposition to blind progress.''
For many years, mankind viewed wetlands as undesirable wet
areas filled with mud, insects and reptiles that were no good
to anyone unless they were drained or filled. However, as
scientists learned more about not only the plant and animal
communities that occupy wetlands, but also the processes and
functions that occur there, it became apparent that wetlands
provide many benefits to mankind that more than justify their
preservation. This is especially true here in the north Georgia
piedmont, where wetlands tend to be smaller and more isolated,
scattered along streams and around lakes. The rapid pace of
development caused by the sprawl of urban and suburban areas in
north Georgia creates an even greater need for the benefits
that wetlands provide, with increased development and adjacent
flood plains, high levels of nonpoint source pollution runoff
from roads and landscaped properties, the huge levels of
sediment discharged from constructionsites and ever-increasing
needs for water reservoirs and treated drinking water. It would
be blind of us to ignore these needs and the benefits wetlands
provide and allow the destruction of wetlands in the name of
progress.
Relaxation or removal of wetlands protections will only
benefit owners of large tracts of land and will, in fact, cost
other members of the community either directly by increased
flooding and polluted water supplies, or indirectly, by higher
taxes, water bills and insurance rates. In the case of the
publicly financed West Cobb Loop road project, it seems
fiscally irresponsible, if not unAmerican, to spend the
people's tax dollars to destroy natural resources that benefit
the community, only to have to spend more of the public's money
in the future to replace the benefits that were destroyed. In
fact, the West Cobb Loop project is an excellent example of how
the U.S. Army Corps of Engineers works with developers to help
them achieve successful projects while preserving and
protecting wetlands and other aquatic resources.
We have found the Corps of Engineers to be reasonable and
competent in enforcing wetlands regulations and that they are
willing to work with developers who are willing to work with
them. The West Cobb Loop is an example of a developer, Cobb
County, who failed to address any of the provisions for
wetlands protections and now that the Corps has forced them to
address the wetlands, the county is working with the Corps to
find a solution that provides a road and preserves the wetlands
for the community.
In summary, the Georgia Chapter of the Sierra Club feels
that the community, developers and the American Congress should
support the U.S. Army Corps of Engineers in their efforts to
protect wetlands and other vital natural resources for the
benefit of all current and future Americans.
Thank you. [Applause.]
[The prepared statement of Mr. Groszmann follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. McIntosh. Thanks, Mr. Groszmann. Mr. Barr had a
question for you, and I may have one as well.
Mr. Barr. Thank you. Mr. Groszmann, focusing not on the
West Cobb Loop, because I understand your position on that and
respect it. I think you have done a great deal of work on it.
Focusing though on Mr. Brown's situation here that I think
you have heard, we have discussed a great deal about. What are
the benefits to wetlands that you enumerated--the filtration,
the cleansing, the wildlife--which one of those would be
present in a situation like Mr. Brown's that would provide the
basis on which to prevent him from taking his land and putting
it back the way it was naturally?
Mr. Groszmann. I am sorry, I was not here to hear Mr.
Brown's case, but I did hear enough about it to realize that it
is the kind of case I think we all hate to hear. And from my
experiences, I would expect that the Corps would work with him
if he would work with the Corps. This seems like a very
difficult situation when things change, I think that might be
where the Corps has a tough time. As the gentlemen a few people
ahead of me pointed out how some of the regulations have
changed since he got his permit. That may be an area that they
have a hard time deciding for themselves how best to handle
these situations. I have not ever experienced any maliciousness
from the Army Corps of Engineers and I do not think they have
malicious intent. But I certainly do sympathize with Mr. Brown
and his need to have his property.
Mr. Barr. If you carry any weight with the Corps, I am sure
he would appreciate it if you would communicate that to them.
Thank you very much and I appreciate your thoughts, Mr.
Groszmann.
Mr. McIntosh. Mr. Groszmann, let me just ask you to clarify
one thing you said, and coming in from outside I have learned
about this preparing for the hearing and obviously have not
been working on the West Loop situation as much as you and the
local officials and the Corps have. But you indicated you
thought Cobb County had failed to address any of the wetlands
concerns, and it strikes me that you might disagree with them
about their proposal and maybe they did not go far enough in
addressing those, but when they came up with a mitigation
proposal that did try to provide 8 to 1 acres of wetlands for
the ones that are impacted by this, that they did at least
think about the problem of wetlands in putting together their
proposal.
Mr. Groszmann. I have to disagree with that. The Corps has
very specific criteria for the order that things have to be
followed. Mr. Croy, with Cobb County Department of
Transportation stated those. No. 1 is avoidance, you are
supposed to show that you tried to avoid impacting wetlands.
Step No. 2 is minimization of any impacts that are unavoidable.
Step No. 3 is mitigation and the Corps specifically stated that
mitigation cannot be the only consideration, that the other two
have to be given full due consideration first and you cannot
ignore them and jump straight to mitigation. Cobb County knew
this when they submitted their plan. Cobb County knows how the
Corps of Engineers works and I believe they intentionally set
this up for a failure.
Mr. McIntosh. OK. So your quarrel is not that they did not
do any wetlands analysis, it is that they did not do the first
two correctly and went right to the third.
Mr. Groszmann. Yes, basically they skipped step No. 1. And
you cannot go any further without starting at step No. 1.
Mr. McIntosh. And the other thing that came out in the
testimony earlier was that there were, I guess, some
differences on the purpose of the project and that that needs
to be cleared up first, then you can determine if there are
other feasible alternatives or if this is the only one and
therefore, we cannot avoid it altogether. And so I think like
two ships passing each other in the night not realizing it, if
you do not agree on that purpose, then the county may have said
we have a purpose for a limited access freeway and minimizing
the impacts on families, and there might be as many as 40
disturbed under one of the alternatives that had fewer impacts,
although it still had some impact on wetlands, based on the
testimony earlier today. And that that limited access highway
may not be for the same purpose that the Corps recognized in
the proposal, and so they were questioning it because you have
not told us whether you can do something that has no impact. So
I think it is going to be key that even before they start the
wetlands analysis, they reach this understanding about what the
county is trying to do with the project, and then I think you
are right, the Corps has a hierarchy that they ask them to
follow and they need to go through and say OK, we have looked
to see whether there is a way of avoiding wetlands impact
altogether. Then the second step of minimizing the impact and
then the third on mitigation.
But from what came out today, it looked to me like that
first precursor to even the wetlands analysis was causing
different interpretations further down the line.
Mr. Groszmann. Well, I think it was very important for the
Corps to understand what are you trying to do here. I do not
think the Corps can offer suggestions as to if they are not
happy with alternative No. 1, they cannot suggest what might be
a viable alternative, if they do not know what the goal of the
project is. So I agree that it is important that right up front
it be understood what are we trying to achieve here. Then the
Corps can come in and say well, you have got three other
alternatives and it looks like at least one or two of them
might still meet your goals and meet our goals of minimizing
impacts to the environment. So you are right, I agree that it
is crucial that they understand what is the goal. I do not
believe--I never got the impression that the Corps was ever
going to reject the permit because they disagreed with the
purpose. My understanding was they simply needed to understand
the purpose to be able to work in a cooperative manner.
Mr. McIntosh. To be honest, it sounds like they had
different understandings of the purpose.
Mr. Groszmann. Maybe so.
Mr. McIntosh. And that was leading to the decision. Let me
ask you a philosophical question because you seem to be a very
thoughtful advocate for the environment, and I have run into
some people who are not so thoughtful, as you are, who also
disagree with some of the decisions that the government makes.
How would you in the area of wetlands say that we should
structure a policy, and let us step way back and say if we
could start over again, to balance out the needs of a community
and the families involved in projects. You mentioned some of
the costs for not considering wetlands, which I think are a
very valid perspective. But, I guess, would you agree with me
that we should also consider the costs of not going forward
with the project, and try to get an understanding of all the
different impacts on people and the environment and then try to
make a judgment that maximizes it from the perspective of the
human population as well as preserving sensitive environmental
areas?
Mr. Groszmann. I would have to agree, of course, to looking
at all the alternatives, including a no-build alternative, have
to get due consideration. I thought we heard from several
citizens that live along East Sandtown Road and they were
talking about how their community was going to be impacted. But
that community was being impacted, not by wetlands, but by a
road project. And it seemed somewhat out of place here in a
wetlands hearing to be complaining about a road project, which
by and large we found that in Cobb County, the problems that
currently exist and need for the road, has been created by poor
planning, by allowing over development, by a lack of searching
for transportation alternatives, which Sierra Club has tried to
promote to the county for years and years and years and yet the
citizens find themselves locked up in traffic jams. We have got
to have more roads. They are finding that the more roads they
build, the more congestion they have and it is a vicious cycle
that is going the wrong way.
Mr. McIntosh. The other thing that we have discovered in
other areas is if you do not have adequate transportation
facilities, then you have other clean air effects and other--I
mean a lot of different ramifications.
Mr. Groszmann. Yes.
Mr. McIntosh. Thank you. I appreciate your coming today and
your joining in on this process and making your views known to
us.
Mr. Groszmann. Well, thank you. I have got something for
you and the other Congressman. I know you both were very
envious of my name tag which says ``Be Conservative, Conserve
Wetlands'' and I would like to give one to each of you.
[Laughter.]
Mr. McIntosh. Well, thank you, I appreciate it. [Applause.]
I think we have time--I had asked Doug Congleton to come
forward as the next one and Jay Weismann and then we will have
to just say that is it, but anybody else who had something in
writing that they would like us to consider as part of the
record, if you could submit that to Karen--and I apologize, we
have just run out of time for the rest of the open mic period.
Mr. Congleton.
STATEMENT OF DOUG CONGLETON, PRESIDENT, PROTECT WEST COBB
Mr. Congleton. I will be as brief as I can.
Mr. McIntosh. Thank you.
Mr. Congleton. Thank you very much.
I am a concerned citizen and a resident of west Cobb and
president of Protect West Cobb, which Laura Lester mentioned
earlier, a group composed of people, residents, from 12
different neighborhoods along the Noses Creek alignment. I also
ran into some of the same problems that Laura ran into in
trying to testify at this meeting. I just wanted to bring that
up.
One problem we have with what is going on is what Glynn
just talked about. In planning roads, we think the county is
doing a poor job of planning, and especially in this West Cobb
Loop situation. This is obviously a much bigger project than
the 5 miles we are talking about from Dallas Highway to Powder
Springs Road. It goes all the way from Cumberland Mall to Town
Center Mall and the county knew that when they started and they
should have thought about that when they were looking at
alignments before building the sections of the road outside of
the West Cobb Loop and now saying that the West Cobb Loop has
to terminate at Ridgeway Road and at east-west connector.
They have also allowed some neighborhoods to go in along
the alignment of the West Cobb Loop that were not there when
the road was planned. We also think the traffic just does not
justify or the local traffic does not justify the road between
Dallas Highway and Powder Springs. If you build the road the
traffic is going to be there.
We also are concerned about not only the immediate impact
to the wetlands along the alignment that has been chosen by the
county, but we are also very concerned about secondary impacts,
is what we call them. In my case, I live along the wetlands and
I am very concerned about when runoff from this road happens
and during construction of the road when wetlands are being
filled and backed up, that my home is going to be flooded and I
know that there are a lot of people along this alignment that
are very, very concerned about that. As a matter of fact, I
think the Corps of Engineers had a videotape of a home that was
along the wetlands that is already being flooded.
Mr. Croy earlier said the people think no road equals no
development. And I would tend to agree with him in that that is
not true. The development is going to come, and I guarantee you
if the road comes, a four-lane highway, there is going to be
development and it is going to be major. Just look at either
end of this road, the east-west connector or up at the mall,
the development is huge and will take over wetlands in
immediate impacts and in secondary impacts.
As far as the mitigation, we have a real question about the
one purple area that Mr. Croy showed on the map, where they are
going to create wetlands. If you look at the map closely, this
is at the intersection of where the West Cobb Loop, a four-lane
highway, at Macklin Road just now widened to a four-lane
highway, meet. This is right at the corner of that and if
somebody can tell me that there is not going to be development
at a major intersection like that, then I would like to see
that in writing.
Mr. McIntosh. Let me interrupt you for just 1 second on
that.
Mr. Congleton. OK.
Mr. McIntosh. If they did put that into a covenant and the
county bought up the property and put it into the title that
they could not develop it, does that in your view kind of make
it a more positive result at the end of the day?
Mr. Congleton. Well, call me skeptical, but how long would
that last? And what are the other three corners, the impact on
those corners, what are they going to do with that area as far
as runoff from parking lots and other things.
Mr. McIntosh. OK. Yes, they would need to do the analysis
for all of it. But OK, thank you, I appreciate it.
Mr. Congleton. I am concerned that Mr. Brown's problem may
become my problem when they go back in these wetlands and
disturb them and then all of a sudden I am going to have a
wetland in my yard from everything getting backed up and my
house is going to be flooded and then the Corps is going to say
you cannot go out and cut your grass. I am worried about his
problem, I can sympathize with him and I am very concerned
about that.
And in conclusion, I would just ask you, Representative
Barr and Chairman McIntosh, if you want to come on out to my
house I will take you on a tour of the area, we will have
breakfast or dinner, we can go look at the traffic and just see
exactly what this area looks like and what the impacts are
going to be.
Thank you.
Mr. McIntosh. Thank you, I appreciate it. I will have to
rely on Bob to do that.
Mr. Barr. The record will reflect that I do live in West
Cobb, Mr. Chairman, I am very familiar with the specifics of
what we have been talking about here today and very sensitive
to both sides.
Mr. McIntosh. And our last witness is--and I have a note
that it is Sam Collier, but Jay Weismann will speak in his
place. Is that correct? Is that how you wanted to do it? Are
you Dr. Weismann?
Dr. Weismann. Yes.
Mr. McIntosh. Welcome and thank you for participating.
STATEMENT OF DR. JAY WEISMANN
Dr. Weismann. Thank you, Chairman McIntosh, Congressman
Barr. I will be very brief.
The Atlanta Journal Constitution has spent a good part of
the past week detailing and comparing metropolitan development
in Atlanta to other cities, including Toronto, Portland and
just on the southern end. It clarified that there are right and
wrong ways to develop. Some of these wrong ways we have been
engaged in for 30-40 years, an unfortunate result for very
well-intended policies that in some way positively influence
many of us. It is easy to go wrong.
I live in east Cobb, really perhaps one of the most
polluted areas in the all of Georgia, perhaps the most
polluted. I do not have children breathing this air. I do have
children, they are grown and they have moved on. I just bid us
all to carefully review the excellent studies that have been
done and with the thought to our future generations, the next
generation and that following; that we take that into
consideration in reviewing our development policies.
Thank you.
Mr. McIntosh. Thank you very much, Dr. Weismann.
[Applause.]
That concludes the testimony for our hearing and let me
reiterate my thanks to Congressman Barr's staff and Congressman
Barr for setting up this field hearing. This has been
enormously helpful to us in the subcommittee and we will take
all this testimony back with us.
Bob, did you have any closing remarks that you wanted to
make? And then we will stand adjourned.
Mr. Barr. Thank you, Mr. Chairman. I would like to
reiterate what I told the audience both present here as well as
listening in the media before your arrival today, and that is
that we very much appreciate what you have done in bringing
these hearings out into the real world outside of Washington. I
know that that is something that you are very committed to, I
know it is something that Speaker Gingrich is very committed
to, in the prior Congress and this Congress, to allow citizens
more direct and easier input into the decisionmaking.
I think the hearing today was very valuable. I certainly
learned a lot even though I live in this very community that we
are talking about with some of these projects, Mr. Chairman, I
learned a great deal today about what is going on. I have some
very specific things that I know you and I and others on the
committee will be looking into.
I did want to recognize one of our State representatives,
though she did not testify today, I notice she has sat through
the hearings, because she is likewise very concerned about this
and that is State Representative Judy Manning. We very much
appreciate Representative Manning being here. [Applause.]
And again, we hope that on your next visit, you will have a
little bit more time so that we can go out and see actually a
little bit more of the community and what it represents. It is
a great community we have here in the Seventh District and we
appreciate you honoring us with your presence in these
hearings.
Mr. McIntosh. My pleasure. Thank you very, very much. And
by the way, I was remiss in not saying that the ranking
minority member, Bernie Sanders, indicated that they very much
appreciated this hearing and one of their Members, Mr. Kucinich
of Ohio, had endeavored to change a lot of travel plans in
order to try to be here today and they felt very badly they
were not able to be part of it, but were looking forward to
seeing the record and participating in the deliberations of the
subcommittee.
With that, the subcommittee is adjourned.
[Whereupon, at 5:15 p.m., the subcommittee was adjourned.]
[Additional information submitted for the hearing record
follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]