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State Attorney General admonishes Army Corp of Engineers on Muir Woods wetland delineation
By Lee Chowaniec
Nov 29, 2005, 00:50
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In March 2004, Liz Kaszubski, Wetland Chair of the Sierra Club Atlantic Chapter, Niagara Group and Chair of the Buffalo Audubon Society, filed a request on behalf of Sierra Club to the US Army Corps of Engineers Inspector General in Washington, DC, that contained detailed information about improper wetland delineations in our area.

Liz states that she never heard a response to that complaint from the Corps or from our US Senators from New York (who she had forwarded a similar request to one month later). Her correspondence to federal authorities contained very specific information about the improper wetland delineation that was paid for by Ciminelli Developers for Muir Woods in Amherst along with other bad studies approved for other wetland projects. Her complaint began as follows:

"As the New York State Wetlands Chair for Sierra Club, I have closely followed the activities of the Buffalo District Regulatory Branch over many years. There appears to be a disturbing trend wherein certain members of the Corps regulatory staff give favored treatment to a consultant who was once a member of the Corps staff. We request that this favoritism cease and that remedies be put in place to address the problems created by these actions. The Buffalo District should investigate questionable wetland studies and better prioritize the work involved to properly protect federal wetlands."

“The NYS Attorney General's office was the only agency that helped us with this and have taken the US Army Corps to task on this issue. The NYS Attorney General's office did a SUPER job! The results can be seen in this Buffalo News article:”

"Muir Woods wetlands studies need redoing- State attorney general says serious flaws require new assessments"

Buffalo News Northtowns Bureau

Wetlands studies of Amherst's proposed 330-acre Muir Woods project are seriously flawed and must be redone, State Attorney General Eliot L. Spitzer's office has told federal regulators.

Among other problems, Spitzer's office said environmental studies submitted by Ciminelli Development, the project's developer, contained "significant" errors "that greatly limited the amount" of wetlands on the site, alongside the Lockport Expressway near Sweet Home Road.

"New York State respectfully submits that the cumulative evidence presented here makes it imperative that the Corps revisit and reconsider its jurisdictional determination for this site," Assistant Attorney General Timothy Hoffman wrote in an Oct. 24 letter to the Buffalo office of the Army Corps of Engineers, which regulates wetlands.

Nearly half of the 330-acre site was found to be federally regulated wetlands in a 1996 study commissioned by the State Urban Development Corp, which then owned the property. However, Hoffman's letter pointed out that Ciminelli's studies - which came almost four years later, omitted any mention of the 1996 report.

The Army Corps has jurisdiction of all wetlands that connect to the navigable waters of the United States, and Ciminelli's reports contend that the site has only 87 acres of federally regulated wetlands.

Hoffman could not be reached to comment, but James Monroe, a neighborhood leader who has studied the Muir Woods project, said the state's interest in the local development mirrors its intervention in two similar cases in Central New York.

The state intervened in developments in the Syracuse and Rochester areas, both administered by the Buffalo office of the Army Corps.

"The Army Corps has taken a very narrow opinion of what makes up a wetland," Monroe said. "The attorney general is saying they did not fully investigate. . . . We want you to go back out and reinvestigate."

David Chiazza, vice president of Ciminelli Development, said the company believes Spitzer's office has no standing to complain about the project, but the attorney general appears to be trying to expand the state's jurisdiction over wetlands.

Nevertheless, the state's letter appears to present another roadblock to the Muir Woods development, proposed five years ago as one of the largest office parks in the area.
Earlier this year, state environmental officials say they still have too little information to make decisions about the project, which will also include housing and retail space.

Chiazza, who praised the Muir Woods project, said Spitzer's objections will be a problem only in the event that the Army Corps of Engineers decides to reconsider its decision about the project's wetlands.

"It blows my mind to think that we're having the problems we're having," Chiazza said.

The following correspondence excerpt was sent to the Corps by the State Attorney General’s office:

Re: Request to Revisit and Reconsider Jurisdiction Determination in Application NO. 2001-00067(1)

The New York State Attorney General’s office, by its Environmental Protection Bureau, requests that the Buffalo District revisit and reconsider Application No. 2001-00067(1) concerning certain wetlands in the Town of Amherst, Erie County, New York, in order to determine appropriately whether the wetlands are “waters of the United States” subject to Corps of Engineers’ jurisdiction under the Clean Water Act, 33 USC section 1251-1387. The wetlands are located on a parcel of real property south of North French Road and north of Interstate 990 and Dodge Road, between Sweet Home Road and Campbell Boulevard (the site). Based on information supplied by the owner of the site, on November 1, 2001, the Buffalo District issued a jurisdiction determination (the “JD”) limiting the federal jurisdictional wetlands to certain of those wetlands identified in a wetland delineation map dated July 12, 2000.

Revisiting and reconsidering the determination is necessary based on new information as follows. First, recent site photographs indicate the presence of additional wetlands in areas previously delineated as wetlands in 1996, and acknowledged by the Corps as federal wetlands. Second, a re-delineation performed in 1996 at the Corps request but never submitted to the Corps demonstrates the existence of additional wetlands. In 1996, after the Corps conducted site inspections, it largely concurred with the 1996 federal wetland boundary delineation.

Four years later, the Corps was presented with a site delineation containing significant apparent methodological flaws that greatly limited the amount of site wetlands, while completely omitting any discussion or acknowledgement of the prior Corps-approved delineation.

Then, the Corps adopted the wetland boundary presented in the subsequent delineation, without addressing at all in its rationale, the delineated it had concurred in just a few years earlier.

Spitzer also agrees that wetlands of one acre or more in size should be protected and he supports the wetlands legislation being considered in Albany.

Well Mr. Chiazza, it also blows the minds of residents in Lancaster how insensitive the Corps has been in protecting valuable and functional wetlands in Lancaster as well. Corps permits to destroy and/or fill in such wetlands have been handed out with such ease that residential developers building in our town have become brazen to the point they openly tell us at Town public hearings and meetings that they can get the necessary permits to fill in wetlands anytime they want.

Two ex Corps staff members have become developer hired guns, contracted to delineate in favor of their sponsors.

In submitting their correspondence to the Corps, the State Attorney General’s (SAG) office clearly indicates the Corps and Department of Environmental Conservation has been remiss in protecting and preserving wetlands, especially at the 330-acre Muir Woods site.

SAG is clearly suggesting the regulatory agencies go back and do it right. The correspondence is monumental in that one government agency is admonishing another, telling them to do it right.

This appears to be turning into a classic example of why the wetlands delineation should be done by an independent agency and not developer hired guns.

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