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| Pollution UpDate" is dedicated to the reporting of timely environmental news. I'd like to thank our readers for their comments and suggestions, and DEP for giving us plenty to write about. | Raymond
Proffitt Foundation P.O. Box - 723 Langhorne, Pa. 19047-0723 gateway@rayproffitt.org http://www.rayproffitt.org |
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PAVLOV’s DOG
We have to give credit where credit is due. Despite the best efforts of Mr. Joseph Howell, the southwest regional office of the Department of Environmental Protection denied his permit to build a mall that would have obliterated over ½ mile of Deer Creek, and nearly 7 acres of wetlands. Mr. Howell, a well-connected Texas developer, has name-dropped extensively in an effort to persuade those "maverick technocrats" (his words, in a letter to DEP Secretary Seif, see PU of 11/25/99) that his project should be approved. Given the amount of pressure Mr. Howell has exerted on the agencies, it is more than a little amazing that DEP had the courage to deny the permit. So we must take our hats off to Regional Director Charles Duritsa, and his staff that put a fork in this turkey. And some cheers to the local activists that took a great interest.
Once again, however, we could not count on the Pittsburgh District of the Corps of Engineers. Although the Corps also denied the permit, they did so only after DEP took action, and, more importantly, they denied the permit "without prejudice." Although this sounds as if they took a strong stand, as a practical matter, that denial is not worth the paper it’s written on. If the DEP denies a permit, the Corps must deny the permit. They have no choice. But by denying it "without prejudice," they have sent a clear message to the developer: settle your differences with the DEP, and if you can get the DEP permit denial overturned, we’re again ready to serve a valued customer (The Pittsburgh District gave Howell a permit about a year ago to fill 3000 feet of stream and 3 ½ acres of wetlands for another mall in Cranberry Township). The Corps could have denied the permit for many of the same reasons the DEP did. Instead, they elected to leave DEP out on the limb by themselves, taking all the heat. This must be their new initiative to foster state/federal relations. It’s a good thing they aren’t trying to mediate the Mideast conflict.
What is even worse, we have reason to believe the Corps has been working to help Mr. Howell design the new channel so that Deer Creek can be moved to accommodate the proposed mall. Now that’s customer service! The following is an excerpt from a letter to the Corps from the Natural Resource Conservation Service:
Our State Project Engineer, Alan Wood, recently received a written request (6/29/00) from a consulting firm, Sheffler & Co., to review the drawings for relocation of Deer Creek as part of a commercial development. They indicated that this was being done at your request and that our recommendations would be incorporated into the design.
We appreciate the credence that you have for our expertise in natural stream design (NSD). However, as a non-regulatory agency, we cannot be a part of the permitting processes. We are working with other agencies to develop a "Stream Team" that may be able to act as a sounding board for stream restoration work; however that concept is not yet final. Until then, we suggest you rely on the NSD expertise in other agencies that are already in the permit process; i.e. U.S. Fish & Wildlife Service, and DEP.
We wish the Corps had spent as much time supporting the DEP’s denial of the permit, and less time trying to figure out a way to help the developer get his mall approved. Never mind that the new channel would be constructed in a canyon, with 60 foot high, steep banks; that the stream will have no connection with a floodplain; and that most mitigation projects are dismal failures. If you want to see the kind of mitigation the Pittsburgh District is willing to accept for the loss of wetlands and 3000 feet of stream, stop by the Cranberry Mall and view the Cranberry Mall "memorial" mitigation wetlands. I realize we’re not the experts here, but they look suspiciously like big detention basins to us. They even have a cyclone fence around them to make sure animals don’t get in. Must be to protect the vegetation.
Actually, the action (or lack thereof) that the Pittsburgh District took on this project is no different than what they have been doing for a long time. We’ll say it again, from our statewide perspective, there is no other District that routinely issues permits for such environmentally destructive projects. What is especially puzzling that this agency has a clear mandate to protect the waters of the United States.
The Clean Water Act was passed in 1972. The goal of the Act (and mandate to the regulatory agencies) is to restore and maintain the physical, chemical, and biological integrity of the Nation’s waters. The permit program that was developed in response to the Act was supposed to provide the utmost protection to the waters of the United States. So we have to wonder, after operating for 28 years under the Clean Water Act, why there are so many proposals to eliminate streams and wetlands in the Pittsburgh District. The expectations of developers that have been nurtured by the actions of the Pittsburgh District remind us of the experiments conducted by the Russian physiologist Ivan Petrovich Pavlov.
If you recall your science (or history) classes, Pavlov was a Russian physiologist known chiefly for his developing the concept of the conditioned reflex. In a now-classic experiment, Pavlov rang a bell every time he fed a dog, so that eventually, the hungry dog would salivate at the sound of the bell, regardless of whether food was offered. In other words, when the bell rang, the dog expected food.
The Pittsburgh District’s actions on permit applications have similarly conditioned the development community. If a developer can get to the point where a completed permit application is advertised for public comment, they can count on the permit being issued. In the past 10 years, the Corps has an unblemished record; to the best of our knowledge, they have not denied a permit based on environmental grounds ( DEP’s denial was their first). You would think that just once in the past 10 years, they would accidentally grab the wrong rubber stamp and deny a permit. Unfortunately, we are not aware of any. Surely, there has to be one! So, if you’re a developer in southwestern Pennsylvania planning to destroy wetlands or streams to build your project, why wouldn’t you apply for a permit?
To be fair, we would not characterize the regulatory environment in southwestern PA as one that is totally out of control. We are certain that the DEP and the Corps have persuaded developers on other projects to reduce the amount of fill in streams and wetlands. Nevertheless, from a statewide perspective, there is no question that the most environmentally egregious projects are located in southwest Pennsylvania. In the past 10 years, there have been numerous projects that never should have seen the light of day.
We have seen notices for:
We could go on, but you get the point. The citizens of southwest PA just don’t have the same kind of protection for streams and wetlands enjoyed by the rest of the Commonwealth.
Which brings us back to the Deer Creek mall debacle. This is just the latest in a series of bad projects that should never have gotten this far, and probably wouldn’t have elsewhere in Pennsylvania. We are supposed to have a regulatory watchdog in the Corps. Given the clear mandate to the regulatory agencies to protect the waters of the United States, we expect that the job will be done. Unfortunately, in southwestern Pennsylvania, our expectations have not been met. Instead, the Corps is running around trying to help the permit applicant to put the stream into a canyon, while, the citizens have had to expend an enormous amount of energy on this project trying to protect the environment.
We have to ask: what is the point of having a dog if we have to do all the barking?
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