STATEMENT OF MARK HERSH, RAYMOND PROFFITT FOUNDATION
ON THE LOGAN TOWN CENTRE, FEBRUARY 6, 2003

 My name is Mark Hersh and I am offering these comments on behalf of the Raymond Proffitt Foundation, a conservation group dedicated to ensuring that our environmental laws are enforced.  We appreciate the opportunity to give comments here tonight on the proposed Logan Town Centre shopping mall.  Through my present work and past employment with PA DEP, the US Fish and Wildlife Service, and the US Environmental Protection Agency, I am familiar with regulations on stream and wetland protection.

 My review of the file leads me to the conclusion that this proposal cannot be issued a permit for a number of reasons, including impacts on the site itself, as well as likely downstream impacts. 

 1.  Wetlands will be severely impacted by this proposal.  The on-site spring-seep wetlands provide unique ecological services that cannot be replaced by human-created wetlands.  But before any talk of “mitigation” or “replacement” can be considered, the Chapter 105 regulations state (in part) that the DEP cannot issue a permit if there is a practicable alternative that would not involve a wetland or that would have a less adverse impact on the wetland.  This is a two-pronged test:  1) avoiding the wetlands, and if wetlands cannot be avoided, 2) minimizing the impact on wetlands.  Neither test has been met here.   

 Regarding the first test, the US Army Corps of Engineers states that the overall project purpose is to construct a large commercial center serving the Altoona region (December 2, 2002 letter to Mr. Gregory Morris).  In addition, the applicant states that they expect visitors from 30 to 50 miles away.  Given the project purpose and the distance that visitors will travel, it is hard to believe that this is the only site in the entire Altoona area that is suitable.  It seems reasonable to assume that any location in a 10 mile radius around the center of Altoona would do, given that the mall is capable of attracting shoppers from 30 to 50 miles away.  The regulations consider that an alternative is practicable if it is capable of being done.  Sites not owned by the applicant but that could have been obtained before the property was purchased in 1997 are considered to be viable alternatives. 

 The written record shows that the applicant purchased this property before applying for the necessary permits.  The applicant’s poor planning should not prevent consideration of other sites for this project.

 2.  Regarding the second test, it seems that if something must be placed on this site, the project could be downsized or rearranged to avoid directly impacting the highest quality wetlands, which are located in the center of the property.  Although the applicant may not like that particular alternative, the regulations are clear on this point: the applicant must show that there is no other alternative to the project other than filling streams and wetlands, in particular those with high biological value like these have.  But it appears that instead of investigating alternatives, the applicant made contractual agreements with potential tenants, thus ensuring that they couldn’t do anything but what they proposed.  

 If no other site can be found, the applicant’s contractual obligations should not preclude DEP from requiring a thorough assessment of modifying the project. 

 3.  Another issue of concern is that the proposal would involve dewatering streams and wetlands.  Filling wetlands and streams can be permitted under the Dam Safety and Encroachment Act subject to the regulations in Chapter 105.  Dewatering streams and wetlands is not the same as filling them, and is an activity subject to Pennsylvania’s Clean Streams Law and our water quality standards.  Court decisions from the US Supreme Court (PUD #1 of Jefferson County v. Washington Dept. of Ecology 114 S. Ct. 1900 (1994)) and the PA Environmental Hearing Board (Oley Twp. et al. v. DEP and Wissahickon Water Co., 1996 EHB 1098) have ruled that water quantity impacts are subject to state and federal water quality laws and can be considered “pollution.” 

 According to the record, the applicant also proposes to build a business park further up the ridge from this project.  Obviously, there will have to be a network of roads, with substantial cuts and fills for buildings and the roads, since the slope is much greater further up the mountain.  This activity, along with 60-foot deep cuts proposed for this project, is likely to dewater streams and wetlands further downslope.  In fact, the applicant’s December 18, 2002, letter to the Corps points out that some of the “downsizing” options suggested by the Corps were not feasible and that they “…would still drain the wetlands due to required cuts in grade.” 

 Water quality standards regulations require that existing uses and the level of water quality necessary to protect the use must be maintained and protected.  Existing uses of the waters of this site are the macroinvertebrates, salamanders, forest interior neotropical migratory birds, turkeys, deer, grouse, and other wildlife that would use the streams and wetlands for food, cover and breeding. 

 Dewatering these streams and wetlands, an activity which cannot be permitted under the Dam Safety and Encroachment Act, will constitute “pollution” under Pennsylvania’s Clean Streams Law and a violation of water quality standards because the existing uses will be eliminated.  

 4.  The project will also likely result in “significant degradation” because unacceptable adverse impacts will probably extend downstream.  According to a February 8, 2002 letter from the US Fish and Wildlife Service to the US Army Corps of Engineers, Brush Run downstream of the site, contains fish.  Biologists from the Fish and Wildlife Service, along with staff from the Pennsylvania Fish and Boat Commission, found creek chubs, blacknose dace, longnose dace, white suckers, central stonerollers, and tesselated darters.

 These species are some of the existing uses of Brush Run and the DEP’s regulations mandate that they be protected.  While DEP’s August 2, 2002 “Technical Deficiencies” asked the applicant for much more detailed information, including maintenance of flow and productivity for Brush Run, there was no mention of thermal impacts to the fish community.  The fish community of Brush Run has to be considered when assessing impacts to water quality.  Even if some eventual configuration of the project does not significantly affect the resources on the site, the downstream resources also must be protected.

 When assessing how water quality will be affected in Brush Run, DEP will probably rely on the stream’s designated use, namely, "Warm Water Fishes" as listed in Chapter 93.  As resource agencies and RPF  have commented before to DEP (relevant letters attached as part of these comments), many of the fish species of Brush Run are not protected by the criteria associated with the WWF designated use.  Only a Cold Water Fishes designation would protect these species because the WWF designation allows water temperatures higher than that tolerated by these cool-water or transitional species.   Therefore, DEP either needs to use the water quality criteria established for the Cold Water Fishes designated use, or needs to use species-specific temperature criteria tailored to the fish in Brush Run. 

Regardless, the project as currently configured will likely result in significant thermal pollution downstream.  This thermal pollution will likely significantly affect the fish species found in Brush Run.  

 We note that the Southcentral Regional Office, in order to protect existing and designated stream uses, has told applicants of existing facilities that they must either drastically change or cease operation.  In a February 22, 2001 letter to the Pennsylvania Fish and Boat Commission, DEP withdrew a draft discharge permit for the Big Spring Hatchery, because “the existing and designated uses of Big Spring Creek... have not been protected or maintained”(copy attached).  The letter goes on to say that wild brook trout have been eliminated from most of the stream and that the discharge might have to be eliminated altogether “to ensure that the existing and designated uses of Big Spring Creek are restored.”  The hatchery no longer discharges and is shut down. 

 It is always easier to protect resources than try to repair them.  It seems that the only reason we are even considering this site is that the applicant purchased the property without due regard for its development potential. If DEP can shut down an existing facility for eliminating existing uses, they can deny a permit for a plan that is likely to result in the same thing.  

 This proposal will likely increase water temperatures such that fish species downstream from the site will be eliminated or significantly reduced.  This is “pollution” under the Clean Streams Law and a violation of the water quality standards.    

 Due to the significant adverse effect on aquatic resources for which no replacement is possible, and for likely downstream impacts, the RPF recommends that DEP deny both the Section 401 Water Quality Certification and the Water Obstructions and Encroachment Permit.  DEP, in the denial letter, could realistically quote to the applicant the immortal words of that great Pennsylvania philosopher, Rocky Balboa:  “You shoulda planned ahead.” 

The public notice says that the comment period ends 13 February and commnets should be sent to:

Nathan Havens, 
DEP, SC Regional Office, 
Water Mgmt. Program, 
909 Elmerton Avenue, 
Harrisburg PA 17110.  

Refer to Encroachment Permit E07-357 and the associated Section 401 Water Quality Certification. 

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