Wednesday, January 6, 2010

Required steps prior to granting a Corps of Engineers permit for McIntire Road Extended

City Council's letter providing the official position of council on construction of an at-grade intersection at Route 250 as the southern terminus of the proposed McIntire Road Extended project may lead to changes in how the parkway is planned, and if it will be granted a necessary U.S. Corps of Engineers permit to allow construction. For those curious about the role of the U.S. Army Corps of Engineers in this project I have provided below an exchange of emails that may help clarify the Corps' role. First is an inquiry I sent to Ms. Kathy Perdue, the Corps' project manager. Following is Ms. Perdue's reply. The letters referred to are available in my recent blog posts.

Dear Ms Perdue, (Emailed on December 29, 2009)

Issues surrounding the status of an at-grade intersection alternative for the McIntire Road Extended project in Charlottesville VA have become somewhat confused by statements in the letter (Nov. 23, 2009 from Ms Angela Tucker of Charlottesville to Mr. Brent Sprinkel of VDOT) you distributed concerning the McIntire Road Extended project's southern terminus. Statements in that letter appear to contradict Charlottesville City Council resolutions and anticipate how city council might vote on future transportation proposals. I do not believe that this letter should be considered an authoritative source of councils position now or in the future regarding McIntire Road Extended.

I find no funding allocations of any sort that would cover construction of an at-grade intersection at Route 250 Bypass, or for the 775 feet of road that would be necessary to connect the current VDOT end of project for McIntire Road Extended to the Route 250 Bypass. Thus, I do not see how VDOT can expect that the Corps of Engineers grant a permit to construct the McIntire Road Extended project all the way from Melbourne Road to Route 250 Bypass ending in an at-grade intersection.

I assume that there are Corps guidelines on what funding, design, approval or other phases of a project must be reached prior to the Corps granting a permit. Please send me a link or document that outlines these thresholds and how the Corps approves that a project meets these threshold requirements. Frankly, I find it inappropriate for VDOT to submit for permitting a project that is not currently or anticipated to be fully funded in VDOT's Six-Year Improvement Program.

Any information you can provide me on this issue would be greatly appreciated.


Peter Kleeman

Dear Mr. Kleeman, (Emailed on December 29, 2009)

The letter to which you refer was written by a City employee on City letterhead; as such, the Corps recognizes it at the City's position, unless of course, the City submits a correction to the letter.

Also, Corps regulations have no requirements for projects to have funding in place prior to receiving Corps permits. Likewise, we cannot deny someone's project based on the fact that he does not have funding upfront to construct it. (Otherwise, we'd have to deny a lot of mom and pop operations! And in the case of VDOT in particular, funding gets moved around all that
time. Sometimes it gets taken away from one project and put on another, or taken away and then put back on the same project again. Some authorized projects as a result never get built, or are built later than anticipated). In short, it isn't our business whether or not someone has the money to construct what he applied to construct, or received a permit to construct. And of course there is no requirement that he even construct his project at all. If the project is constructed, then of course it is our business that permittees adhere to the specific Corps conditions for the permitted activity.

In short, we are charged with environmental review under Section 404 and its associated laws, such as NEPA, Section 106, Section 7 of the Endangered Species Act, the Magnusan-Stevenson Act (Essential Fish Habitat), etc. (You may recall that in the case of McIntire Road Extended, the activity that necessitates a Corps permit for the project is the road crossing). An applicant must fill out an application to apply for most Corps permits (which VDOT has done). The applicant's project also need not be at 100% design to obtain a permit, but the water or wetland impact being authorized must be quantified and accurate. And, if anything changes with regard to the
applicant's water/wetland impacts after he receives his permit, in most cases he must apply for a permit modification.

And finally, an applicant need not have other approvals already in hand (such as State or local), prior to obtaining a Corps permit, because our authority is independent of theirs. Applicants must still comply with all applicable laws and regs of course, but in most cases our permit is only a small piece of that, and it's the only part we can enforce.

Attached is the link to the permit for which VDOT is applying (07-SPGP-01, Part B):

I hope this helps.

Kathy Perdue

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