RECOMMENDATION OF THE REGIONAL ADMINISTRATOR
(REGION I) CONCERNING THE 9CEDENS SWftfl> SITE IN ATTLEBORO,
MASSACHUSETTS PURSUANT TO SECTION TO(c) OF THE CLEAN WATER ACT
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CONTENTS
i. Introduction 1
II. Background
A. Project Description and History 3
B. Litigation
III. Description of Site 11
A. Ecological Values
B. Soils and Hydrology
IV. Adverse Effects from Proposed Project 19
A. Wildlife Habitat
B. Water Quality
V. Alternatives to the Proposed Project 26
A. General Considerations
B. Practicable Alternatives
C. Less Environmentally Damaging Alternatives
D. Conclusion
VI. Mitigation 53
A. Scientific Issues
B. Legal and Policy Issues
C. Pyramid’s Proposed Mitigation
vii. Recommendation 67
Appendix A: Month—by—Month Chronology of Project History
Appendix B: Habitat Evaluation
Appendix C: August 21, 1985 Proposed Determination
Appendix D: Response to Comments
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I. INTRODUCTION
This recommended decision concerns a 50—acre wetland in Attleboro,
Massachusetts known locally as Sweedens Swamp, where the Newport
Galleria Group, an affiliate of The Pyramid Companies, (Pyramid)
proposes to build an enclosed regional shopping mall. Largely a
forested wetland adjacent to a headwater tributary of the Seven
Mile River, the swamp is located next to Interstate 95, roughly
one—quarter mile from the Rhode Island border. In order to con-
struct the mall and appurtenant facilities, Pyramid proposes to
fill 32 acres of wetland. Pyramid would excavate another 13 acres
of existing wetland and 9 acres of upland in an attempt to mitigate
the adverse impacts of the mall on flooding, water quality and
wildlife. As additional mitigation, Pyramid proposes to excavate
and regrade 30 acres of upland and 6 acres of open water several
miles from the site in an attempt to create emergent marsh, open
water, and shrub wetlands.
Section 404(c) of the Clean Water Act (CWA, 33 U.S.C. §1251 et
seq.), authorizes the Administrator of the Environmental Protection
Agency (EPA) to prohibit or restrict the use of any defined area as
a disposal site, whenever he determines, after notice and opportunity
for public hearing, that the discharge of dredged or fill materials
into such area will have an unacceptable adverse effect on municipal
water supplies, shellfish beds and fishery areas (including spawning
and breeding areas), wildlife, or recreational areas. Before
making such a determination, the Administrator must consult with
the Chief of the Army Corps of Engineers, the property owner(s),
and the applicant(s) in cases where there has been application for
a Section 404 permit.
EPA’S regulations implementing Section 404(c), 40 C.F.R. Part 231,
establish procedures to be followed in exercising the Administrator’s
authority to prohibit or restrict the use of an area as a disposal
site. The three major steps in the process are the Regional Admin-
istrator’s proposed decision to prohibit or restrict the use of a
site; the Regional Administrator’s recommendation to the Adminis-
trator to prohibit or restrict use of the site; and the Administra-
tor’s final decision to affirm, modify, or rescind the regional
recommendation. The Administrator has delegated the authority to
make a final decision under Section 404(c) to the Assistant Admin-
istrator for External Affairs, who is EPA’S national Section 404
program manager.
This proposed shopping mall has been controversial and attracted
widespread public opposition and support. I have carefully con-
sidered the record developed by EPA and the Corps in this case,
including the many public comments submitted, information presented
at public hearings, voluminous submissions by the proponent, and
the comments of other federal and state agencies. As described
more fully below, I have determined that the discharge of fill
material into Sweedens Swamp as proposed by Pyramid would be likely
to have an unacceptable adverse effect upon wildlife habitat.
Therefore I recommend that use of the area as a disposal site for
the purpose of building a shopping mall be prohibited.
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In the following sections, I first discuss the history of Pyramid’s
proposal and the events leading to EPA’S initiation of the section
404(c) process. Next I describe the values of Sweedens Swamp,
concluding that the wetland at the site provides excellent wildlife
habitat for birds and mammals of local importance, maintains water
quality, provides valuable flood storage, and discharges groundwater.
Following a description of the wetland values, I explain the basis
for my conclusion that construction of a mall at the site would be
likely to cause significant adverse impacts to those wetland values,
particularly wildlife habitat.
To determine whether the adverse impacts would be unacceptable, I
then examine whether the project would comply with EPA’S section
404(b)(l) guidelines. I have determined that the project would not
comply with the guidelines, since there are less environmentally
damaging practicable alternatives to filling Sweedens Swamp, as
described in Section V herein. Pyramid’s proposed mitigation is
not relevant to the conclusion that there are alternatives, for
the reasons described in Section VI. In the final section, I
explain why the large loss of wetlands and wildlife habitat at
Sweedens Swamp that would result from this project, coupled with
the projects’s violation of the central element of the 404(b)(1)
guidelines, supports a finding that the adverse impacts are unac-
ceptable and that the filling of Sweedens Swamp should be prohibited.
Pyramid’s proposal presents numerous and complex issues; many are
fundamental to the regulatory program under section 404 of the CWA.
In reaching my decision, I have been mindful not only of the facts,
but also of the precedential nature of this case. I seriously
considered whether I should recommend that the project, including
mitigation, be allowed to proceed under detailed conditions. I
concluded, based on my understanding of the facts in the record,
that such an approach would require me to interpret EPA’S section
404(b)(l) guidelines in a way which differs markedly from past
application of the guidelines by both EPA and the New England
Division of the Corps. In contrast, I believe this recommended
decision addresses the specific issues posed by this case, is most
sound from an overall environmental policy perspective, and best -
furthers the goals of the Clean Water Act.
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FIGUF a. REGION ALPW’
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Bay
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II. BACKGROUND
A. Project Description and History
Pyramid proposes to build an enclosed regional shopping mall on a
triangular parcel of property near the intersection of Interstate
95 and Route 1A in Attleboro, Massachusetts. As described in Part
III herein, deciduous forested wetland dominates over half of the
82 acre project site. Figures 1 and 2 show the location of the
proposed mall.
A two—level structure with approximately 700,000 square feet of
floor area, the mall would be “anchored” by three large department
stores, and would contain some 150 smaller satellite and specialty
outlets. To construct the mall (including roads and parking areas)
as proposed, Pyramid would place 885,000 cubic yards of fill in 32
acres of wetland. If authorized, this would be the largest wetland
fill project in Massachusetts in over five years. In addition to
the basic project, Pyramid proposes several additional features to
mitigate adverse impacts. A mall “pad” would be constructed beneath
the mall building and parking areas. According to the applicant,
surface runoff from the mall and parking lots would be collected
and passed through sumps and oil and grease traps before flowing
through a perforated drainage pipe and into the mall pad and even-
tually discharged into onsite mitigation wetlands. The pad would
consist of several feet of peastone gravel underlain by a clay
barrier or impervious layer and would require excavation of exist-
ing soils. Once in place it would sit atop remaining peat soils.
Pyramid proposes to mitigate adverse impacts by excavating thirteen
acres of existing wetland and nine acres of upland onsite to create
artificial wetlands. Further, Pyramid proposes to compensate for
wetland impacts at the site by attempting to create 36 acres of
artificial wetlands at an offsite location roughly two miles away.
Figure 3 depicts the proposed development.
Pyramid’s proposal is the latest in a series of attempts to develop
a shopping mall at the Sweedens Swamp site. Pyramid’s immediate
predecessor, the DeBartolo Corporation, was denied a state wetlands
permit in 1982. DeBartolo requested a state adjudicatory hearing on
the denial; before the hearing was held, however, Pyramid assumed
control of the project.
EPA first learned of Pyramid’s proposal to fill wetlands for a
shopping mall in May 1984 during a preapplication meeting with
the New England Division of the Corps (NE Corps), the U.S. Fish and
Wildlife Service (FWS), and Pyramid. Pyramid representatives and
consultants described the project and distinguished their proposal
from previous development plans at the site by emphasizing that
they had reduced the amount of wetland fill and added onsite miti-
gation features. Pyramid requested that the project be authorized
under a Corps “nationwide permit” (a general permit requiring no
application or public review) for discharges into headwater areas.
While acknowledging Pyramid’s improvements to earlier development
plans at the site, EPA and FWS stated that the wetland impacts
were still substantial and that since the project was not water
dependent, practicable alternatives were presumed to exist.
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In letters dated June 8, 1984, and July 11, 1984 respectively, EPA
and FWS formally asked the NE Corps to exercise discretionary
authority to require an individual permit based on, among other
things, the loss of wetlands, the need to fully examine alterna-
tives, and the level of public interest in the project. Later in
July, the NE Corps notified Pyramid that an individual permit would
be required and Pyramid submitted an application. The NE Corps
issued a public notice describing the project on August 16, 1984.
Neither the permit application nor the public notice included any
discussion of offsite mitigation.
In August 1984, EPA participated with the NE Corps, FWS, and Pyra-
mid consultants in a site inspection and habitat evaluation of the
site. Utilizing the procedure proposed by Pyramid’s consultants,
(described in Appendix B) numerical values were assigned to the
site’ for quantitative analysis. (The same procedure was later
utilized to evaluate the proposed offsite mitigation area and an
alternate mall site in North Attleborough.)
EPA’s preliminary review comments to the NE Corps, dated Septem-
ber 19, 1984, indicated a need for further review of project
alternatives, water quality impacts, and mitigation plans. This
letter stated EPA’S view that consideration of mitigation is not
appropriate until the alternatives analysis is completed. The
FWS also commented on September 18, 1984, and concluded that the
permit should be denied because the proposal did not comply with
the EPA 404(b)(l) guidelines. I provided the NE Corps with full
review comments on October 5, 1984 and, objected to issuance of the
permit because the project did not comply with the EPA 404(b)(l)
guidelines since there appeared to be less environmentally
damaging practicable alternatives to the project. I noted that’
Pyramid had incorrectly stated that 30 acres of-wetland existed on
a nearby alternate mall site in North Attleborough (less than one
acre actually exists), and further mischaracterized that site 1n
other respects. I also suggested that other sites in the trade
area could serve as practicable mall alternatives. I further
recommended that the NE Corps prepare an Environmental Impact
Statement (EIS) to comply with the National Environmental Policy
Act (NEPA) and informed the NE Corps that if it decidedto issue
the permit over EPA’s objections, I would consider the case a
candidate for action under section 404(c) of the Act.
EPA, FWS, NE Corps, and Pyramid representatives met on November 30,
1984 to discuss federal agency concerns about alternatives, water
quality, mitigation, and NEPA. Pyramid presented for the first
time an offsite mitigation proposal to convert a gravel pit in
North Att].eborough (a different area than the alternate mall site
discussed above) into an emergent wetland. - EPA reiterated its
position that mitigation may only be used to compensate --for unavoid-
able impacts and that Pyramid had not overcome the pre sumption that
practicable alternatives exist.
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Pyramid objected to EPA and FWS recommendations that there be
public review and comment on its offsite mitigation proposal and
disagreed with our view that the project needs an EIS. The Corps
decided not to prepare an EIS or solicit public comment on the
offsite mitigation. EPA, FWS, and the NE Corps met again on Jan-
uary 4, 1985 to discuss the status of the project. EPA once more
stated its strong belief that the project did not comply with the
404(b)(1) guidelines since it is not water dependent and the pre-
sumption of the existence of environmentally preferable practicable
alternatives had not been overcome. On January 14, 1985, EPA met
with Pyramid to further discuss the issues of practicable altern-
atives, project purpose definition, and mitigation.
The NE Corps retained a consultant, William Badger, to examine the
practicabi1it ’ of a potential alternate mall site in North Attle—
borough, Massachusetts, at the intersection of 1-295 and U.S.
Route 1. State Properties of New England, Inc. (now New England
Development), proposes to build a mall at that site. Badger’s
report, released on January 30, 1985, concludes that both Sweedens
Swamp and the North Attleborough mall site are feasible for develop-
ment of regional shopping malls. The report also states that the
trade area can only support one such mall. Representatives of EPA,
the NE Corps, FWS, the Massachusetts Department of Environmental
Quality Engineering (“DEQE”), and State Properties inspected the
North Attleborough site in February 1985 and confirmed that less than
one acre of this site was wetland. The NE Corps, on February 19,
1985, advised Pyramid that denial of the permit was imminent. on
February 26, 1985, EPA wrote the NE Corps outlining three bases for
permit denial: 1) existence of at lease one practicable alternative;
2) potentially significant impacts to wetlands; and 3) the project
may not be in the public interest.
The Massachusetts DEQE in March 1985 issued an Order of Conditions
(akin to a state permit), approving Pyramid’s project following a
highly controversial adjudicatory hearing. The federal agencies
were not involved at any stage of the state proceedings. The
project was “grandfathered” and approved under the State’s older,
less restrictive regulations, •rather than under the “new” 1983
rules. Under the new regulations, which actually took effect before
Pyramid assumed control of the project, the filling of greater than
5,000 square feet cannot be permitted in wetlands such as Sweedens
Swamp. Neither the old nor the new state regulations contain require-
ments comparable to those in the federal regulations concerning
projbct alternatives or impacts to wildlife habitat. Pyramid’s
offsite mitigation proposal was not part of the project considered
by the State. Opponents to the mall subsequently filed suit in
state court challenging state approval of the project. That lawsuit
is still pending.
In April 1985, Pyramid presented a conceptual plan to the NE Corps,
EPA, FWS, and representatives of two environmental grdups and the
town of North Attleborough to construct an artificial wetland in
North Attleborough as offsite mitigation for losses due to the pro-
posed mall. Many questions were raised about the acceptability
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of the mitigation site to the town of North Attleborough and about
whether the site supplied sufficient water to develop and sustain
an artificial (in the sense of being manmade) wetland. Pyramid
subsequently dropped the site from consideration. In addition,
on April 12, 1985, EPA sent to the NE Corps a letter describing
the scientific, legal and policy difficulties that arise from
accepting mitigation of impacts (in the sense of wetland creation)
in place of first avoiding them. EPA again urged permit denial.
On May 2, 1985, the Division Engineer of the NE Corps made a recom-
mended decision to deny Pyramid’s application for a permit. He
found that the permit should be denied for two reasons: first, the
proposal did not comply with the 404(b)(l) guidelines since there
was a practicable environmentally preferable site for development
of a shopping mall; and second, the proposal was not in the overall
publi c interest. The NE Corps concluded that Sweedens Swamp pro-
vides excellent wildlife habitat for species of local importance.
The recommended decision, along with the draft statement of findings,
environmental assessment, and 404(b)(1) compliance review were
transmitted to Major General Wall, then Director of Civil Works in
the Office of the Chief of Engineers in Washington, D.C., in accor-
dance with General Wall’s instructions.
In a highly unusual move, on May 31, 1985, General Wall overruled
the NE Corps, finding that the project did comply with the 404(b)(l)
guidelines and was not contrary to the public interest. While
acknowledging ambiguities in the guidelines, he found that a
project involving wetland fill may be approved if sufficient
mitigation is offered even though another upland site is available
which would satisfy the basic project purpose. Accordingly, he
directed the NE Corps to “reconcile” its documentation and to
prepare a notice of intent to issue a permit. To the best of my
knowledge, the Corps Headquarters’ position represents the first
time that the EPA 404(b)(1) guidelines have been interpreted and
applied in this fashion in New England.
In accordance with General Wall’s directive, the NE Corps informed
EPA and FWS on June 28, 1985, of its intent to issue a permit for
the proposal. The NE Corps’ revised findings continue to charac-
terize Sweedens Swamp as an excellent wildlife habitat, but predi-
cate issuance of the permit on the expected success of the onsite
and offsite mitigation even though the location of the offsite
mitigation had not yet been determined. Although the Corps’ pro-
posed permit contains twelve special conditions relating to offsite
mitigation and water quality, several of which must be satisfied
prior to Pyramid’s doing any work at Sweedens Swamp, it does not
specify the size, location, and type of offsite mitigation. The
proposed permit is currently conditioned in a manner that would
allow Sweedens Swamp to be severely disturbed (earthmoving, clearing
of vegetation, etc.) at the same time that Pyramid wuld attempt to
create the of fsite wetlands. (Indeed, Pyramid’s plan al the time was
to use-the peat from Sweedens Swamp to create a wetland elsewhere.)
The permit does not allow “vertical construction” to take place at
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Sweedens Swamp until the artificial wetlands are “in place and
functioning”. These terms have not yet been defined by the Corps.
The NE Corps’ notice of intent triggered a 20 working day period
for EPA to decide the most appropriate course of action. During
this period, EPA met with and exchanged correspondence with Pyra-
mid, State Properties, and other interested parties. EPA reviewed
the record developed to date and carefully considered, among other
things, whether or not to initiate action under section 404(c).
After inspecting the site, I initiated the 404(c) process on July 23,
1985, by sending a letter to the NE Corps and Pyramid stating that
there was reason to believe Pyramid’s proposed filling of Sweedens
Swamp could result in unacceptable adverse effects on the wetland
resources, specifically wildlife. On July 25, 1985, the Regional
Direc.tor of FWS wrote to the NE Corps stating that he supported
EPA’s 404(c) action and that the FWS “continues to feel that this
non—water dependent project will result in significant avoidable
adverse impacts to wildlife and to the wetland habitat upon which
that wildlife depends.”
In response to a citizen complaint, EPA and the NE Corps inspected
the project site on July 30, 1985, and found that Pyramid had
conducted work subject to the requirements of the Clean Water Act
without having received the required 404 permit. On July 31, 1985,
the NE Corps issued a cease and desist order which instructed
Pyramid not to perform any additional illegal work within the
wetland and commenced an enforcement investigation.
The 15—day consultation period which followed my initiation of the
404(c) process ended August 8, 1985. The NE Corps did not seek to
consult with EPA. Pyramid representatives had several discussions
with EPA during that time. Following another review of Pyramid’s
proposal, I was not persuaded that there would be no unacceptable
adverse effects from the proposed discharge. Therefore, on
August 13, 1985, I signed a proposed determination to prohibit or
restrict the specification of Sweedens Swamp for use as a disposal
site, in accordance with 40 C.F.R. §231.3(a)(2). Notice of €he
proposed determination was published in the Federal Register on
August 21, 1985 (50 Fed. Reg. 33835), in the Boston Globe on Au-
gust 26, 1985, and in the Attleboro Sun Chronicle on September 5,
1985. The notice established a public comment period from August
21, 1985 through October 21, 1985, and scheduled a public hearing
for September 26, 1985, in Attleboro, Massachusetts. Because of
the complexity of this case, and the number of issues on which I
sought comment, I elected to allow the full 60—day comment period.
During the 404(c) process, Pyramid offered to agree, as a condition
of an issued permit, to conduct offsite mitigation prior to dis-
turbing Sweedens Swamp. EPA indicated that it would consider this
offer, along with any detailed information that might be submitted
during the public comment period, in reaching a regional! decision
whether to withdraw the proposed determination, or to recommend
prohibiting or restricting use of the site.
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EPA conducted the public hearing at the Attleboro High School.
Over 1,000 people attended the almost five hour hearing. EPA heard
statements by federal, state and local elected officials and agency
representatives, Pyramid, environmental groups, and members of the
public. Both supporters and opponents spoke at the hearing although
the majority of those in attendance favored the mall. An official
transcript is part of the record.
EPA’s 60—day public comment period closed on October 21, 1985, by
which time the Agency had received over 1200 comments totalling
thousands of pages. Many commenters favored the proposed mall
primarily because they believed it would increase local shopping
opportunities, provide benefits to the local economy and improve
the environment. Similar reasons were cited by those who favored a
mall at the North Attleborough location. Those who commented in
opposition to the Attleboro mall site focused primarily on the loss
of wetlands, the non—water dependent nature of the project and the
availability of project alternatives. Other commenters expressed
concern about water quality impacts, flooding, traffic issues and
the need for the project. A number of cemmenters specifically
opposed the North Attleborough mall site because of concerns about
potential impacts to drinking water supplies, traffic related
problems, and effects on a local elementary school. A few corn—
menters opposed construction of a shopping mall at either location.
Appendix D of this document discusses the major issues raised in
the comments. During the comment period, Pyramid selected a new
location near Tiffany Street in Attleboro for its offsite mitiga-
tion proposal and began developing specific plans.
The NE Corps on October 18, 1985, issued a public notice soliciting
comment on Pyramid’s new proposed offsite mitigation plan. A public
hearing on this issue was conducted by the NE Corps on November 18,
1985 and public comments were accepted until November 28, 1985.
Comments were primarily of a technical nature concerning hydrolog-
ical or biological aspects of the proposed mitigation. Some speakers
stated that a discussion of mitigation during the 404(c) process
was inappropriate.
I originally had intended to make the regional decision to withdraw
the proposed determination or forward a recommended determination
to EPA Headquarters by October 26, 1985 (thirty days after the
public hearing, pursuant to 40 C.F.R. §231.5(a)). However, because
the Corps sought comments on an issue that was also a subject of
EPA’S request for comments, I determined that there was good cause
to wait to incorporate the comments submitted to the Corps into
EPA’s 404(c) record.
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The EPA Assistant Administrator for External Affairs, Joy Manson,
visited the Sweedens Swamp site with Region I staff on November 20,
1985. In addition to a survey of the proposed mall site, Ms. Manson
inspected the proposed Tiffany Street offsite mitigation area and
the alternate North Attleborough mall site.
The Region has evaluated the entire record in preparation for this
decision. The size of the record, the complexity of the issues,
and the need to seek additional information to clarify the record
have required more time for preparing the recommended decision
than originally anticipated. / In accordance with 40 C.F.R.
§231.8, a Federal Register notice is being prepared to inform the
public of the time extension adopted by the Region in making the
recommendation and the reasons for the delay. /
Appendix A contains a month by month chronology of this case.
B. Litigation
On August 27, 1985, Pyramid filed a complaint against EPA and the
Corps in the federal district court for the District of Columbia,
seeking to enjoin EPA’s 404(c) process and to compel immediate
issuance of the 404 permit by the Corps. (See Newport Galleria v.
Deland et al., No. 85—2747 (D.D.C.)). Pyramid alleged that EPA’S
decision to initiate and continue with the 404(c) process was
illegal because there was no reason to believe that any unacceptable
adverse impact could possibly result from Pyramid’s proposed project.
On September 25, 1985, the court granted the United States’ motion
to dismiss Pyramid’s action. Judge Green noted that EPA has wide
discretion to determine when to begin proceedings under section
404(c), since the statute sets no threshold requirements for the
initiation of such proceedings. The regulations are quite broad on
this point, requiring only that there be reason to believe that an
unacceptable adverse effect could result.
The court rejected Pyramid’s claim that, as a matter of law, EPA
could neither find that there were practicable alternatives to the
proposed filling of Sweedens Swamp nor find that there could be
unacceptable adverse effects. The court stressed that EPA was not
bound by the Corps’ conclusions during the permit process, and
concluded that EPA had “ample reason” to initiate its section
/ A substantial amount of staff time during this period has
— also been spent responding to numerous letters and Freedom
of Information Act requests submitted by Pyramid to Region I.
Pyramid and the public have already been notified i 9 formally
— of the reasons for the delay and the status of decision—making.
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404(c) proceeding. Finally, the court ruled that there was no
final, reviewable action that had been taken by EPA. Accordingly,
the court dismissed the case for lack of jurisdiction. Pyramid
filed a notice of appeal of the district court’s decision on
October 9, 1985. That appeal is still pending.
Pyramid filed a second lawsuit against EPA on February 20, 1986, in
the federal district court for the district of Massachusetts. (See
Newport Galleria Group v. Deland , No. 86—0622—Z (D. Mass.)). In
that action, Pyramid seeks a declaratory judgment that, because of
the delay in issuance of this recommendation, the proposed deter-
mination is deemed withdrawn and the Corps permit may be issued.
The government has sixty days to respond to Pyramid’s complaint.
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III. DESCRIPTION OF SITE
A. Ecological Values
The proposed project site is 82 acres, of which 49.5 acres are
classified as wetlands. Pyramid proposes to fill or alter 45 of
those wetland acres. The FWS’s National Wetland Inventory identi-
fies the entire wetland area as palustrine forested, hardwood
deciduous; based upon site visits by FWS experts, this wetland
can be more specifically classified as seasonally flooded. EPA
personnel and others have observed standing water in several areas
of the wetland, particularly after moderate to heavy rainfall. The
site vegetatibn and habitat types were determined through fieldwork
by ERA, FWS, NE Corps and Pyramid’s consultants and supplemented
by letters received during the public comment period. While none
of this work is exhaustive in itself, considerable information
about Sweedens Swamp now exists. Tables 1—3 provide lists of
plant and wildlife species observed or expected to be found at the
site. General cover types for the site are as follows:
o wooded swamp 47.1 acres
o abandoned field/disturbed land 17.2 acres
o hardwood forest 12.5 acres
O developed land 2.8 acres
o open water 1.1 acres
o marsh 0.7 acres
o shrub swamp 0.6 acres
The 49.5 acres of wetlands are contained within an eastern and a
western basin, 35.5 and 14 acres respectively. The smaller western
basin, characterized by a forest canopy consisting predominantly of
red maple ( Acer rubrum) , contains a well developed shrub layer
including European buckthorn ( Rhamnus frangula) , common elder
( Sambucus canadensis) , winterberry ( hex verticillata) , highbush
blueberry ( Vaccinium corymbosum) , and arrowwood ( Viburnum recogni —
turn); and a herbaceous layer comprised of marsh fern ( Dryopteris
thelypteris) , sensitive fern ( Onoclea sensibilis) , cinnamon fern
( Osmunda cinnamomea) , and jewelweed ( Impatiens capensis) .
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TABLE 1
LIST OF IDENTIFIED PLANT SPECIES
Sweedens Swamp
Attleboro, Massachusetts
red maple Acer rubrum (FAC)
smooth alder Alnus serrulata (OBL)
Jack—in—the-pulpit Arisa na atrorubens (FACW)
milkweed Asciepias sp.
yellow birch Betula lutea (FAC)
gray birch Beluta populifolia (FAC)
reed bent grass Calamagrostis canadensis (FACW)
fringe sedge Carex crlmita (OBL)
sedge C. lupulina (OBL)
sedge C. lurida (OBL)
sedge C. folliculata (OBL)
sedge- Carex sp.
sedge C. vulpinoidea (OBL)
catalpa Catalpa sp.
wood reed Cinna arundinacea (FACW)
sweet pepperbush Clethra alnifol ia (FAC)
goldthread Coptis groenlandica (FACW)
silky dogwood C rnus amam.un (FACW)
red osier Cornus stoloni fera (FACNq)
dodder Cuscuta sp.
urrbrella sedge Cyperus sp. (prob. CBL)
marsh fern Dryopteris simulata
evergreen wood fern Drycpteris spinulosa (FAC)
willow herb Epilobium sp. (probably (EL)
knerican beech Fagus graridifolia (FACU)
white ash Fraxinus americana (FACU)
bedstraw Galiun sp.
manna grass Glyceria sp. (OBL)
witch hazel Hamamelis virginiana (FAC)
winterberry hex verticillata (FAc.w)
jewelweed hinpatiens (probably capensis ) (FACW)
sedge Juncus effusus (FACW)
red cedar Juniperus virginiana (FACU)
sheep laurel Ka]znia arigustifolia (FAC)
duckweed Latna sp . and Spirodela polyrhiza (OBL)
yellow wood lily Lilius canadense (FAC)
spicebush Lindera benzoin (FACW)
Canada mayflower Maianthemun canadense (FAC)
watercress Nasturtium officinale ((EL)
n untain holly Nemcpanthus inncronata
black gum Nyssa sylvatica (FAC)
evening—primrose Cenothera biennis (FAQJ)
sensitive fern Orioclea sensibilis (FACW)
cinnanon fern Oamunda cinnamcxnea (FACW)
royal fern Oamunda regalis (OBL)
panic-grass Panicum - sp. - - -
Virginia creeper Parthenocissus quinquefol ia (FACrJ)
camion reed Phragmites australis (FACW)
clearweed Pilea punila (FACW)
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TABLE 1 — (Cont’d)
pitch pine Pinus rigida (FACW)
white pine Pinus strobus (FACU)
bluegrass Poa sp.
nartweed Polygonum sp.
cottonwood Populus deltoides (FAC)
quakir aspen Populus tr nuloides (FACU)
big—tooth aspen Populus grandidentata (FAGJ)
cinquef oil Potentilla sp.
black cherry Prunus serotina (FAC)
white oak Quercus alba (FACU?)
scrub oak Quercus ilicifolia
pin oak Ouercus palustris (FAGI)
red oak Quercus rubra (FAQJ)
black oak Quercus velutina
European buckthorn Rhamnus frangula
swainp azalea Rhododendron viscosurn (OBL)
blackberry Rubus sp.
trailir blackberry Rubus sp.
poison sumac Rhus vernix (OBL)
willow Salix sp.
pussy willow Salix discolor (FACW)
ca n elder Sambucus canadensis (FAGJ)
sassafras Sassafras albidum (F1 CXJ)
soft—st nrned bulrush Scirpus validus (CBL)
woolgrass Scirpus cyperinus (FACW)
cam n greenbriar Snilax rotundifolia (FAC)
peat ncss Sphagnum sp. (OBL)
deadly nightshade Solanum dulcamara (F1 C)
goldenrod Solidago sp.
steeplebush Spiraea tanentosa (FACM)
skunk cabbage Symplocarpus fcetidus (CDL)
tall maadow rue Thalictrum pol gamum (F CW)
h nlock Tsuga canadensis (FAOJ)
broadleaf cattail Typha latifolia (CDL)
highbush blueberry Vacciniun cor nbosum (FACW)
early low bluebberry Vaccinium vacillans
maple-leaved viburnum Viburnum acerifoliun
wild raisin Viburnum cassinoides
arrowwood Viburnum recognitum (FAG’J)
violet Viola sp.
‘Terminology fran National Wetland Plant Database maintained by the U.S. Fish and
wild ife Service. thligate (CDL) species occur in wetlands exclusively [ 99—100%];
Facultative wet (FACW) occur in wetlands frequently [ 67—99%]; Facultative species
are present in both wetland and upland habitats (wetland frequency 33—67%];
Facultative upland species occur less frequently in wetlands 11—33%]. If no
indication appears it means tbe plant is either unclassified or is considered an
upland species.
CDL = cbligate hydrophyte
FAGJ = facultative hydrophyte
FAC = facultative
FAOJ = facultative upland
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ThBLE 2
LIST OF OBSERVED BIRD SPECIES
Sweedens Swamp
Attleboro, Massachusetts
Red winged Blackbird elaius phoeniceus
Mallard (with brood) Arias platyrhynchos
Anerican Black Dick Arias rubripes
Ruf fed Grouse Bonasa ii be1lus
Red—tailed Hawk Buteo jainaicensis
Northern Flicker (feeding young) Colaptes auratus
Nnerican Crow Corvus brachyrhynchos
Blue Jay Cyanocitta cristata
Downy W dpecker Dendrocopos pubescens
Hairy Woodpecker Dendrocopos villosus
Yellow-rumped Warbler Deridroica coronata
Gray Catbird (feeding young) t inetella carolinensis
Rusty Blackbird Euphagus carolinus
Carncn Yellowthroat Geoth].ypis triches
Dark—eyed Jun00 Junco hyemalis
Swamp Spaia v Melospiza georgiana
Scrig sparrow (feeding young) Melospiza melodia
Northern Mockingbird Mirnus polyglottos
Kentucky Warbler Opornis formosus
Blacked—capped Chickadee Parus atricapillus
Tufted Titmouse Paws bicolor
CamKx l Grackle Quiscalus quiscula
Eastern Phoebe Sayornis phoebe
white—breasted Nuthatch (feeding young) Sitta carolinensis
knerican G3ldf inches Spinus tristis
Tree Sparrow Spizefla arborea
Field Sparrow Spizella pus illa
European Starling Sturnus vulgaris
Atterican 1 bin Turdus migratorius
Eastern Kingbird Tyrannus tyrannus
Red-eyed Vireo Vireo olivaceus
Mourning Dove Zenaidura macrora
!4-iite--throated Sparrow Zonotrichia albicollis
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TABLE 3
LIST OF OBSERVED(*) OR EXPECTED MAMMALS, REPTILES AND AMPHIBIANS
Sweedens Swamp
Attleboro, Massachusetts
Shorttail Shrew Blarina brevicauda
Opossum Dideiphis marsupialis
Woodchuck* Marmota monax
Striped Skunk* Mephites mephites
Meadow Vole Microtus pennsylvanicus
Shorttail Weasel Mustela erminea
Woodland Jump .ng Mouse Napaeozapus insignis
White—footed Mouse* Peroinyscus leucopus
Raccoon Procyon lotor
NorwayRat Rattus norvegicus
Eastern Gray Squirrel* Sciurus carolinensis
Cottontail* Sylvilagus sp.
Eastern Chipmunk* Tainias striatus
Eastern Painted Turtle Chrysemys picta
Wood Turtle Clemmys inscuipta
Eastern Box Turtle* Terrepene carolina
Eastern Garter Snake Thamnophis sirtalis sirtalis
Spotted Salamander Ambystoina maculatum
American Toad Bufo ainericanus
Spring Peeper Hyla crucifer
Green Frog* Rana clainitans
Northern Leopard Frog R. pipiens
Wood Frog R. sylvatica
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—12—
The forest canopy of the eastern basin again consists predominantly
of red maple, but also includes some yellow birch ( Betula lutea )
and black gum ( Nyssa sylvatica) ; a shrub layer comprised mainly of
sweet pepperbush ( Clethra alnifolia) , spicebush ( Lindera benzoin) ,
swamp azalea ( Rhododendron viscosum) , and poison sumac ( Rhus vernix) ;
and a herbaceous layer comprised of sensitive fern, cinnamon fern,
royal fern ( Osmunda regalis) , skunk cabbage ( Symplocarpus foetidus) ,
and peat moss ( Sphagnum sp.). Within this eastern basin are smaller
areas of emergent wetland and shrub swamp vegetated with broadleaf
cattail ( Typha latifolia) , willow herb ( Epilobium sp.), mannagrass
( Glyceria sp.), soft—stemmed bulrush ( Scirpus validus) , duckweed
( Lemna sp., and Spirodela polyrhiza) , and various sedges ( Carex
sp.). This portion of the wetland exhibits well developed mound
and pool microrelief.
Sweedens Swamp provides habitat for several mig atery bird species
and a variety of resident mammals and amphibians. Many of the bird
species depend heavily upon this habitat for nesting and feeding,
and some of these species probably breed in Sweedens Swamp. Gray
catbird, white—breasted nuthatch, northern flicker, and song
sparrow were observed feeding young. A brood of mallards was
observed during the summer of 1985. Other birds observed include
black duck and red—tailed hawk. In addition, mammals such as the
eastern gray squirrel, cottontail rabbit, striped skunk and
woodchuck, and amphibians such as the green frog have been observed.
Red maple swamps are typically climax wetland communities that are
more mature and stable than earlier successional stages. Vertical
stratification of herbaceous, shrub, and tree layers coupled with
the well developed soil structure increase the diversity of
ecological niches, which are populated by a complex community of
producers, consumers and decomposers. In general, red maple
swamps support a diverse group of wildlife species. Amphibians
and reptiles commonly breeding in these wetlands include green,
pickerel, and wood frogs, salamanders, painted turtles, and several
snake species. Over 40 bird species breed in Massachusetts red
maple swamps.! In addition, wetlands such as Sweedens Swamp serve
as fall and spring stop—over places for migratory songbirds while
other species overwinter in these areas. Avian predators such as
red—shouldered hawks and owls nest and hunt the abundant mice,
shrews and voles that inhabit wooded swamps. Also, forested wet-
lands normally have higher biomass and rates of plant productivity
than most upland forest types. As such, forested wetlands generally
provide better food and cover too. Sweedens Swamp appears to be
no exception.
*1 Larson, Joseph S. 1983. A Guide.to Important-Characteristics
— and Values of Freshwater Wetlands in the Northeast. University
of Massachusetts Water Resources Research Center Publication
No. 31.
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—13—
The forested wetlands on the site have excellent vertical structure
with several levels of vegetation including well developed overstory,
sapling, shrub and herb layers. As a result of the high structural
diversity, dense vegetative growth, and the size of the site,
Sweedens Swamp provides excellent habitat for a variety of wildlife
species. The types of plant species found at this site, such as
alder and winterberry, in combination with their high biomass, result
in excellent food sources for wildlife, particularly songbirds and
small mammals. The dense vegetative growth also provides good cover
for concealment, escape, and nesting.
The juxtaposition of upland and wetland areas on parts of this site
helps reduce the travel needed by, and hence the energy expenditures
by, various wildlife species to meet life requirements such as
nesting, rearing and feeding. Also, Sweedens Swamp provides valuable
summer habitat for many birds from surrounding areas which seek the
abundant food sources (fruits, insects) as well as the shade and
drinking water found there. Certain mammals, reptiles and amphibians
find similar refuge during hot weather, while some reptiles and
amphibians spend the winter burrowed in soft muds. Further, large
forested wetland tracts located in urbanized areas are important
resting and feeding areas for many migrating songbirds which nest
in northern New England or Canadian Provinces.
Overall, the NE Corps and the USFWS characterize the site’s wildlife
habitat as excellent, while the Massachusetts Division of Fisheries
and Wildlife stated that the “area is a high-quality red maple swamp”
and found that:
.....Swedens (sic) Swamp is a 50—acre wetland area composed
of a forested swamp mixed with shrubs and herbaceous growth
providing wetland habitat for a variety of wildlife including
migratory waterfowl and songbirds. It is a classic New
England red maple swamp, rich with ferns, mosses, sedges,
bulrush, hawks, mammals, amphibians and reptiles. Geologically,
a swamp like this takes hundreds of years to develop.
I find based on the record that Sweedens Swamp does provide excel-
lent wildlife habitat.
Extensive adjacent development has given the site an island com-
munity effect. The size of the site is certainly sufficient to
maintain a diverse resident wildlife population, particularly with
the structural heterogeneity of the vegetation. The majority of
wetland habitats in the vicinity of Sweedens Swamp are island—like
in nature as well. The dynamic processes of population biology
force these island—like communities towards an equilibrium by a
combination of genetic, behavioral and abiotic factors.*/ Unnatural
*1 Lidicker, W.Z., Jr. 1978. Regulation of Numbers in Small
— Mammal Populations - Historical Reflections and a,Synthesis.
Pp. 122—141 in D.P. Snyder, ed., Populations of Small Mammals
under NaturaTConditiOnS. Pymatuning Symposia in Ecology.
Vol. 5. Pymatuning Laboratory of Ecology, Univ. of Pittsburgh.
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—14—
selective forces, such as human induced impacts, disrupt that equi-
librium causing emigration. The ability of similar habitat types
in the vicinity to accept immigrants through restricted migration
corridors is limited if these similar areas are at or near equilib-
rium already. Increased densities result in greater inter— and
intraspecific competition, stress from behavioral interactions, and
reduced reproductive success. Mortality of emigrants or emigrant—
displaced residents is the probable result.
A community—based evaluation system developed by Pyramid’s consul-
tants was used to estimate wildlife habitat value in numerical
terms.*/ This method was employed at the Sweedens Swamp site to
assess baseline (existing) conditions. / The FWS agreed to parti-
cipate in these evaluations at the request of the NE Corps and the
EPA, 1?ut did not endorse the method. The evaluation confirmed that
the site is indeed a typical New England red maple swamp. The
results indicate that Sweedens Swamp exhibits good foliage height
diversity, plant species diversity, and edge —— in short, that
Sweedens Swamp is a well developed, stable community. Appendix B
provides a complete description of the model, an explanation of the
model’s strengths and weaknesses, and a presentation of the data
acquired.
Several commenters, Pyramid among them, characterize Sweedens Swamp
as a “dump” or an area strewn with old tires, refrigerators and
debris. Trash and debris have been dumped at the site, primarily
along the perimeter and on the disturbed upland portions of the
property. Only a few scattered piles of. debris litter the interior
of the wetland. EPA estimates that dumping directly affects
less than 10% of the site, little of which is wetland. Further,
the NE Corps found that “ [ a]lthough the site has been subject to
some human disturbance, ... large segments of wetland remain rela-
tively isolated from human impact.” I agree that wetland values
have not been significantly affected by these disturbances.
*/ The assessment model used in this case attempts to measure
— wildlife value only and does not purport to evaluate other
environmental values. Two other approaches, the Exxon and
AdaiflUs models used during the state proceeding, do attempt to
measure a wider array of values. Both of these methods
placed Sweedens Swamp in the “moderate value” category.
**/ This model also was used at the proposed of fsite mitigation
— area and an alternate mall site to assess baseline conditions,
as well as to assess predicted future (afterconstruction)
conditions, at all three sites.
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—15—
Although unsightly and visible to the casual observer, the refuse
has little direct bearing on the wetland values provided by Sweedens
Swamp. Wildlife are unlikely to avoid the area because they find
it aesthetically displeasing. Moreover, most effects of the un-
authorized dumping at Sweedens Swamp can be reversed, with the
cooperation of the property owner. Pyramid, however, recently
denied permission to an environmental group, Citizens for Respon-
sible Environmental Management, to clean up the site.
B. Soils and Hydrology
The U.S. Soil Conservation Service classifies the soils which
underlie the wetlands at Sweedens Swamp as Medasaprists. This soil
type is characterized as having a high capacity for available
water and a root zone that is restricted by a seasonal high water
table at or near the surface for more than 9 months of the year.
This soil type is normally found in the wettest swamps in Massachu-
setts. Borings indicate that the site’s wetlands are underlain by
fibrous peat varying in thickness up to 40 feet. Stratified drift
(sands and gravels) underlie the peat and may reach 30 feet in
thickness.
Sweedens Swamp lies at the confluence of several small drainage
systems that flow through the site prior to entering a 48—inch
culvert under Newport Avenue. This water travels through a short
channel before entering the Seven Mile River, a tributary of the
Ten Mile River. The Ten Mile River eventually empties into Narra-
gansett Bay. The total watershed area draining into Sweedens Swamp
is approximately 622 acres.
The large size, steep sides, and restricted outlet of the Sweedens
Swamp wetland basin make it an effective flood storage area.
Pyramid has stated in its 404 permit application that “the site is
presently capable of reducing downgradient peak stormflows”, and
that It [ a]s a result, the site reduces downstream flood hazards and
storm damage potential.” Pyramid further characterizes the existing
wetlands as “serving as a valuable storage area for storm and flood
water”, in its supplement to the permit application. In its final
decision on this project, the Massachusetts Department of Environ-
mental Quality Engineering stated that “the area serves a crucial
flood water storage function and helps to control peak flows by
releasing stormwater over time.” Further, in an evaluation of an
earlier mall proposal at this site, BSC Engineering*/ stated in
1979 that:
*/ Currently one of the environmental consultants to Pyramid for
this project. -
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—16—
This swamp contains the single largest flood storage
area in the sub—watershed [ of the Seven Mile River]
and may equal the combination of all of the other
storage capacity (sic) of the 600 plus acres. The
existing swamp functions hydrologically to attenuate
peak discharges from the watershed, buffer flood flows
in the Seven Mile River and conversely to release stored
water and groundwater to maintain dry weather flows.
I agree with these analyses and conclude that in its present state,
Sweedens Swamp stores flood waters and modulates peak and base
flows. In addition, I conclude that this flood storage function
will increase in importance as development continues in the water-
shed and downstream of Sweedens Swamp.
Wetlaitds can alter the fate of pollutants by chemically or biologi-
cally removing contaminants from water. The ability of a wetland
to remove these contaminants is a function of several variables
including hydrology, vegetative type, soils and pollutant loading.
For a wetland to function in this pollutant attenuation capacity,
the water which carries the contaminants must come into contact
with the wetland vegetation and soils. Water can come into contact
with vegetation and soils when streams overtop their banks and
flood adjacent wetlands. Contact also can occur when water flows
over the wetland surface or through the wetland soils as a result
of runoff from adjacent areas or precipitation. (Pyramid’s consul-
tants refer to these latter two routes as “diffuse flow.”) The
removal of contaminants can occur by any, of the following mecha-
nisms: 1) contaminants simply may settle out as velocities decrease
when water enters a vegetated wetland; 2) contaminants may settle
out and be adsorbed to soil particles or plant roots; and 3) con-
taminants may be absorbed by plants.
Pyramid has stated that of the total annual flow entering the site,
approximately 73% flows through Sweedens Swamp in discrete stream
channels while 27% passes through the site as “diffuse” flow (prin-
cipally flow over the wetland surface). Pyramid further states
that the amount of water which overtops the stream banks (overbank
flooding) and floods the wetlands represents about 3—4% of the
total watershed runoff entering the site.*/ When combined with the
27% which flows across the site as diffuse flow, then at least 30%
of the total annual flow entering the site has the opportunity to
contact the site wetlands. Indeed, observations during different
times of the year indicate that substantial flooding of the forested
wetlands occurs. On April 8, 1984, FWS personnel observed that
*1 These figures were developed from a hydrological analysis of
— the existing stream channel for a 1 inch (rainfall) ètorm-event.
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—17—
“surface water [ was] present over much of the wetland but in areas
around [ the] stream the surface water had drained off.” On Novem-
ber 20, 1985 and January 28, 1986, EPA personnel observed surface
water over several parts of the wetlands and found evidence of
stream flooding indicated by fresh debris lines in the vegetation
surrounding the stream channel. The debris lines were approximately
6-9 inches above the surface of the water in the stream. In testi-
mony submitted during the adjudicatory hearing at the state level,
Garrett Hollands, of IEP, Inc. (a consulting firm), stated that
on June 12, 1984, he observed flooding on approximately 40.6 acres
of the wetlands at the site. He further observed that the western
basin (approximately 14 acres) was flooded to a depth, in some
places, of one to two feet. In addition, Mr. Hollands estimated
that of the 35.5 acres of wetlands in the eastern basin, approxi-
mately 27.7 acres were flooded. Mr. Hollands concluded that these
wetla nds were inundated from “overbank flooding plus inflowing
runoff from point and nonpoint source discharges.”
In evaluating Sweedens Swamp’s ability to remove pollutants from
waters passing through the site, I have accepted Pyramid’s estimates
on overbank flooding as the minimum amount which occurs. However,
this phenomenon is difficult to measure with complete accuracy.
Low spots in the stream bank away from the measured cross—sections
used in the model to calculate overbank flooding could allow
flooding to occur which would not show up in model calculations.
In any event, the record indicates that at least 30% of the water-
shed’s runoff has the opportunity to contact the wetland system in
a manner which would permit the wetlands to remove contaminants.
I have no reason to believe that the degree of interaction between
the water, soils and vegetation in Sweedens Swamp is lower than
what typically occurs in similar forested headwater wetlands in
New England. Therefore, I find that Sweedens Swamp has the cap-
ability to attenuate waterborne pollutants and to improve water
qua 1 i ty. I
Sweedens Swamp is part of the Ten Mile River drainage basin and
acts mainly as a groundwater discharge area rather than as a re-
charge area. Recharge may only occur during short periods during
dry summer months. Although the unconsolidated aquifer underlying
the site and nearby area has not been developed as a drinking
water supply, a u.s. Geological Survey hydrologic atlas indicates
/ During the State proceeding, Pyramid submitted data which
— show that existing water quality was good and did not change
significantly between entry and exit from the site. This
information indicates that there are not significant sources
of pollution in the watershed; it does not have a bearing on
the capability of the wetland to improve water quality.
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—18—
that this aquifer has the potential to be a major source of ground-
water. It appears, however, that under current Massachusetts
regulations, the presence of a major highway interchange and
residential and commercial development surrounding this site
likely precludes use of the aquifer for a municipal drinking water
supply.
C. Summary
Pyramid has on occasion described the site as a wetland “in name
only” or claimed that Sweedens Swamp is a wetland only because red
maples grow there. For instance during the litigation, Pyramid
stated that the “site is a highly inefficient and degraded wetland”
and that the “‘swamp’ does not function biologically as a true
wetland but is merely classified as such due to the presence of red
maple trees.” These assertions are incorrect. The presence of red
maple —— a facultative species which tolerates a wide range of
moisture regimes —— actually has little to do with the determination
of the area as a wetland. Based on information in the record
concerning soil characteristics at the site, the majority of the
plant species present and the hydrologic regime of the site, I
believe that Sweedens Swamp is a functional wetland.
Further, I find that Sweedens Swamp provides to varying degrees
most wetland values such as natural flood storage, groundwater
discharge, natural filtration and pollution control, and habitat
for a variety of amphibians, reptiles, birds and mammals. Both the
Massachusetts Division of Fisheries and Wildlife and the U.S. Fish
and Wildlife Service state that the site is valuable, with the
latter designating it as Resource Category 2, the second highest
category in its policy for classifying habitat. I agree with these
assessments. The record shows that Sweedens Swamp is a typical New
England red maple swamp which provides excellent habitat. It is
not a dysfunctional or low value wetland, as Pyramid claims.
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—19—
IV. ADVERSE EFFECTS OF THE PROPOSED PROJECT
Construction of a large shopping mall at Sweedens Swamp would
drastically change the hydrology, soils, and biology of the area.
For purposes of deciding whether the impacts of this project are
avoidable, they should be evaluated without consideration of the
various onsite and of fsite mitigation measures proposed by Pyramid.
As discussed more fully in Sections V and VI, only by assessing
the direct impacts of the project without mitigation can alterna-
tives to the project be equitably compared and an accurate deter-
mination made whether there are less environmentally damaging
alternatives to the proposed activity. Mitigation is appropriate
to consider only if the impacts from the project are unavoidable.
A. Wildlife Impacts
The general impact of the project on wildlife habitat can be eval-
uated by comparing the baseline (existing) condition of the project
site with the projected condition after the mall is built. Project
impacts can most readily be seen by looking at the gains and losses
of cover type acreage, projected changes in habitat values, and
the expected effects on wildlife use. The proposed project without
mitigation would involve filling 32 acres of wetland out of a
total of 49 acres of wetland. Currently, less than three acres
(4%) of the site are developed; after construction, 49 acres (60%)
would be developed. Much of the existing vegetative community of
Sweedens Swamp would be destroyed by the project. As discussed in
Section III, Sweedens Swamp provides a large, diverse habitat for
a variety of wildlife, particularly birds, small mammals, and
amphibians, species typical of New England forested swamps.
Very few, if any, of these species would survive in the area during
construction of the project. Some individuals might remain in the
wetlands which would not be filled for the mall, but this area
would be poorly buffered from the disturbance of construction
activities and even so, could only support a small percentageof
the affected wildlife.
In all likelihood, slow moving species would perish under the fill
or during the clearing and excavation of the swamp. More mobile
species would attempt to migrate and relocate in nearby habitats.
However, if these nearby habitats already are at or near carrying
capacity (equilibrium), relocation would result in death of the
refugee animals or death of the animals in nearby areas displaced
by animals from Sweedens Swamp. The numerical habitat assessment
model (Appendix B) confirms that the proposed project would adversely
affect wildlife values since both wetland and upland habitat would
be destroyed to build the mall. There would be an outright loss
of 32 acres of wetland, and a significant loss of the existing
value of wildlife habitat as illustrated by the model.
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—20—
Before Interstate 95 bisected it, Sweedens Swamp was a larger
wetland area. Now it is located in an area of Attleboro which is
subject to increasing development pressure. Surrounded by highways
and cleared land, Sweedens Swamp provides an oasis of valuable
wildlife habitat. The current proposal (without mitigation) would
further reduce the remaining wetland to one third its present
acreage and increase substantially the level of human disturbance
of that remaining portion. While the cumulative effect of develop-
ment on Sweedens Swamp is clear, it is more difficult to predict
the broader regional consequences of this project. In any event,
the loss of forested wetland habitat would be permanent (with or
without the proposed mitigation). From the mid—1950’s to the
mid—1970’s, the U.S. lost over 6 million acres of forested wetlands.
While specific figures are not available, it is reasonable to
assume that this type of habitat declined in acreage in New England
as well. The filling of nearly two—thirds of Sweedens Swamp, the
largest permitted wetland loss in Massachusetts in at least five
years, would represent a significant loss of valuable wetlands,
at least on a regional scale.
Even if Pyramid’s proposed mitigation were considered, the project
would still result in a net loss of wildlife habitat. As explained
in Section VI, Pyramid proposes to attempt to compensate for the
adverse impacts at the site by altering existing wetland habitat
and by creating wetlands from upland areas. This attempt at compen-
sation involves both “onsite mitigation” (i.e., work adjacent to
the mall itself) and “offsite mitigation” (i.e., work at a location
several miles from the mall). -
Pyramid’s proposed onsite mitigation consists of attempting to
create 22 acres of emergent marsh and shrub swamp from 13 acres of
existing wooded wetland and 9 acres of existing upland. Thus, 50
acres of the site would be occupied by the mall and attendant
facilities; open water and eventually, vegetated wetlands would
comprise about 26 acres. Because only four acres of the 82—acre
parcel would be left in its natural state, the initial dredging and
filling of the site would destroy nearly all its existing va1 ie for
wildlife. The developed area would have virtually no wildlife
value. The onsite mitigation area would have minimal value immedi-
ately after excavation and regrading. If wetland vegetation in the
mitigation area were successfully established, wildlife would
probably begin to resettle in the area; however, this resettlement
would be slow due to greater disturbance from the activity at the
mall. Even under the most optimistic projections, the site would
recover no more than half its current value for wildlife. The low
profile emergent wetlands proposed for this area would not buffer
wildlife from disturbance of the highways (much less the mall
itself) as effectively as the existing wooded habitat does. Even
if successfully established, the onsite wetlands would be substan—
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—21—
tially smaller and of a different type than those lost. The vege-
tation in these wetlands, although potentially of higher annual
productivity, would exhibit less spacial heterogeneity, structural
diversity, and standing biomass than the existing swamp. Further,
these new wetlands would not provide habitat for the same numbers
and types of species displaced or eliminated. The habitat assess-
ment also shows that there would be a substantial drop in both
wetland acres (—24) and habitat values.*/ Habitat losses would
result from the destruction of both wetland and upland cover
types.
In an attempt to offset the net loss of habitat at Sweedens Swamp,
Pyramid proposed additional mitigation. This additional mitigation
would occur at an of fsite location two miles away (see Section VI)
where Pyramid would attempt to create a 36—acre wetland out of an
existing 30 acres of upland and 6 acres of open water. Even if
100% successful (which is another issue altogether), the projected
net increase in habitat value at this offsite location would not
fully compensate for the net loss of habitat value at the mall
site. Therefore, even if both the onsite and offsite mitigation
were completely successful, the project as a whole (mall construction
and mitigation) would result in an overall loss in wildlife habitat
values. Although Pyramid plans to provide a net increase of six
acres of wetland under its mitigation proposal, any increase in
wetland acreage (or numerical habitat values) will come at the
expense of existing wetland and upland areas.
If successful, the artificially created wetlands, both onsite and
offsite, would attract wildlife species different than those cur-
rently using or inhabiting Sweedens Swamp. Many of the small
mammals and bird species typical of Sweedens Swamp probably would
not use the new wetlands. While some species of wildlife might
migrate to the created wetlands, their numbers and variety would
not be the same as exist at Sweedens Swamp. Because the size of
the wetlands onsite would be reduced substantially and the level
of human disturbance increased, small mammals would be less likely
to return. Also, this smaller wetland area would result in a
greater adverse effect on certain bird species which require large,
well—developed, and relatively isolated habitats (i.e., forest
interior species). A recent study / in Massachusetts suggests that
breeding bird communities in forested wetlands are significantly
related to vegetation structure and hydrology. The study found
*/ This net loss is demonstrated numerically in Appendix B.
— However, as the Appendix explains, the results of thenumerical
habitat assessment must in any case be viewed with’caution
because several factors may affect the precision and accuracy
of the results.
/ Swift, B.L., J.S. Larson and R.M. DeGraff. 1984. Relationship
of Breeding Bird Density and Diversity to Habitat Variables
in Forested Wetlands. The Wilson Bulletin, Vol. 96(1): 48—59.
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that, generally, the most structurally diverse and most poorly
drained forested wetland sites (such as Sweedens Swamp) have the
most abundant and diverse breeding bird populations. In addition,
raptors such as the red—tailed and red—shouldered hawks observed at
Sweedens Swamp, would be especially impacted at both sites. Recent
research by the USFWS*I in Connecticut indicates that these preda-
tory birds are consistently associated with mature, bottomland
forests and may be particularly sensitive to land pattern changes
in their habitats.
B. Hydrological Impacts
In its present state, Sweedens Swamp stores flood waters and modulates
peak and base flows. Construction of the mall and parking areas,
absent compensatory flood storage (as Pyramid proposes for mitigation),
would exacerbate flooding onsite and downstream.
The impacts to surface water quality from the proposed project
appear to be minimal in comparison to other sources of contamination
that already exist in the Ten Mile River watershed, although the
amount of pollution from the mall site will increase the overall
pollutant load to the watershed. The amount of surface water
degradation resulting from mall construction and use will not
be very significant in itself, as long as effective erosion control
structuresare installed and surface water runoff quality is
maintained at acceptable levels.
There is little information describing tjie quality of parking lot
runoff and its impact on surface water resources. According to the
EPA Nationwide Urban Runoff Program (NURP) report, the effects of
urban runoff on receiving water quality are highly site—specific.
The impacts depend upon the urban runoff quantity and quality, the
chemical and physical characteristics of the receiving water body,
the concentration of specific pollutants reaching the receiving
water body, and the pollutant concentrations that reach a water
supply. The NURP report found that there are a variety of heavy
metal and organic contaminants which commonly occur in urban runoff.
Without detailed site—specific testing, it is difficult to deter-
mine which of those contaminants would be found in the proposed
mall’s parking lot runoff or what their concentrations would be.
However, the contaminants most likely to be found in parking lot
runoff include lead, zinc, copper, chromium, arsenic, oils and
greases, and salts. In the absence of any treatment, runoff from
the mall project would likely contribute these pollutants to adja-
cent waters.
/ USFWS Research Information Bulletin No. 85—19, November 1985.
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As a part of its attempt to offset adverse impacts to Sweedens
Swamp, Pyramid has proposed several features in the onsite mitiga-
tion plan. Pyramid proposes to build a “mall pad” to address reduc-
tions in baseflow that would result from the development of the
site. The pad is also supposed to reduce peak flows from storm
events and contribute to the prevention of pollution. Other onsite
features, according to Pyramid’s consultants, would improve water
quality renovation. For example, Pyramid claims that conversion
of existing wooded swamp to open water, deep marsh and shallow
marsh areas would triple contact of watershed runoff with the
wetland. To accomplish this, Pyramid proposes the construction of
several “wetland cells”, which also would function as stormwater
detention basins. Runoff from various parts of the site would
discharge into created shallow marshes and ultimately into a deep
marsh and open water area before leaving the site.
Pyramid’s consultants have stated that 100% of the runoff from the
watershed will be able to interact with the created wetlands,
which will provide water quality renovation. Pyramid implies that
replacement of the current wooded swamp with a shallow marsh will
provide mor,e efficient water quality renovation. I am not certain
that the created wetlands will function exactly as described by
Pyramid.*/ Unless carefully controlled, 40% of the runoff entering
the site may interact with only several hundred feet of shallow
marsh.**/ Further, while it may be true that contact of runoff
with the wetland will increase, this does not necessarily mean
that water quality will improve. Polluted runoff from the mall
and its parking areas will increase the pollutant loading to the
remaining areas of Sweederis Swamp. Even if greater pollutant
contact with the wetland occurs, this (ill merely result in concen-
trating contaminants generated by the mall in a smaller volume of
the wetland vegetation and soil. (Some of these pollutants may be
regulated by an NPDES permit, issued under Section 402 of the
Clean Water Act, for the discharge of stormwater runoff into the
wetlands.)
As discussed in Section III, Sweedens Swamp overlies an aquifer
which has water supply potential. However, it appears that the exis-
tence of a major highway interchange (Route 95) and residential and
commercial development near this aquifer likely precludes its use
for a municipal drinking water supply. It is not probable that the
/ For example, according to the elevations on the applicant’s
— plans, it appears that there will be little opportunity for
the runoff entering the northwestern corner of the site to
interact with shallow marsh areas; instead it would more likely
flow through the wooded swamp and deep marsh before leaving
thesite. - - - - - -
/ Runoff from the 40% of the watershed drainage areathat enters
— the northeast corner of the site would theoretically bedispersed
through.a shallow marsh via spreader berms-andultiinate].y:into
a deep marsh. It is unóertain-hówèffectivi1t! iS Wifl’Ork-
and whether the runoff will merely take the -shortest route off the
site as it does under existing conditions. - - -
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Massachusetts DEQE would grant a permit for development of a munici-
pal water supply at Sweedens Swamp because a suitable buffer zone
needed for protection may not be available, and because the site is
near potential contamination sources.
Sweedens Swamp drains into a small unnamed stream that eventually
joins the Seven Mile River which flows into the Ten Mile River.
The swamp is approximately five river miles upstream of Central
Pond, which most likely provides recharge to the adjacent Seekonk,
Massachusetts Water District well field. There currently are three
production wells and a proposed well adjacent to Central Pond. The
existing wells have the potential yield of more than three million
gallons per day (mgd). The Seekonk Water District currently is
pumping between 2.5—3.0 mgd from these wells, representing approxi-
mately 90% of the total volume used by the town.
According to the Rhode Island Department of Health, the Ten Mile
River is not being used as a source of water supply by Rhode Island
communities. The Ten Mile River previously was used as a source
of drinking water by the town of East Providence approximately
fifteen years ago. Since then, however, East Providence has been
purchasing drinking water fran the city of Providence which is
supplied by the Scituate Reservoir. As stated previously, he
amount of contamination fran the mall site will increase thé
overall contaminant load to the watershed. However, the water
quality impacts fran the proposed project appear to be minimal in
comparison to other sources of contamination that already exist in
the Ten Mile watershed. Therefore, I find that there would not be
adverse impacts from Pyramid’s proposed project upon public drinking
water supplies, including the Seekonk Water District wells, as long
as effective erosion control structures were installed and maintained
during construction and surface water runoff quality were maintained
at acceptable levels.
Summary
Pyramid’s proposal would have an immediate and severe impact on
wildlife habitat because 32 acres of wetland would be filled.
Moreover, the value of these wetlands to store flood waters, dis-
charge groundwater, and maintain water quality would be lost. In
order to provide compensatory flood storage and attempt to replace
other wetland values, Pyramid would dredge or fill much of the
remaining wetlands (4 acres would remain undisturbed) and upland.
Even assuming full success of the onsite mitigation proposals,
there would be a net loss of nearly 24 acres of wetlands and a
concomitant decrease in the wildlife value of the site. In an at-
tempt to provide additional compensation, Pyramid prcpos&Sto.
build 36 acres of artificial-wetlands at anoffsite:locar iono: -
These wetlands, even if successful, would not be of -the! same -type
as those destroyed and would not -fully replace the løs habitat- .
values at Sweedens Swamp. I cannot tell whether the newly -created
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wetlands onsite would function much more “efficiently” than the
existing swamp, as Pyramid asserts. In any case, the mall will
generate waterborne pollutants which may partially or totally
offset any gains in wetland “efficiency”. I do not believe, based
on current information, that the mall proposal would adversely
affect drinking water supplies.
As described above, the proposed mall project would have adverse
impacts on wildlife habitat, one of the wetland values protected by
section 404(c) of the Act. In determining whether or not these
adverse impacts are unacceptable, I next examine whether or not
there are practicable, less environmentally damaging alternatives
to the proposed project.
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V. ALTERNATIVES TO THE PROPOSED PROJECT
A. General Considerations
In determining whether a proposed project would be likely to have
an “unacceptable adverse effect” on the aquatic environment, r must
evaluate both the significance of the loss of the resource value
and the unacceptability of that loss. / The preamble to the
404(c) regulations states that the section 404(b)(l) guidelines
provide the substantive criteria by which the acceptability of a
discharge is to be judged under section 404(c). 44 Fed. Reg.
58076 (October 9, 1979). The preamble explains that:
one of the basic functions of 404(c) is to police the appli-
cation of the section 404(b)(l) guidelines. Therefore,
those portions of the guidelines relating to alternative
sites may be considered in evaluating the unacceptability of
the environmental impact. For example, the Administrator
may take into account the fact that the alternative sites or
methods are or are not available, so that the loss of re-
sources is avoidable or unavoidable. Of course, even when
there is no alternative available, and “vetoing” the site
means stopping a project entirely, the loss of the 404(c)
resources may still be so great as to be “unacceptable.”
Id. at 58078.
As discussed above, Pyramid’s proposal to fill Sweedens Swamp would
be likely to cause a significant loss of wildlife habitat at the
disposal site. In order to determine whether that loss is unaccep-
table, I have evaluated the project in light of the section 404(b)(1)
guidelines, which are regulations published at 40 C.F.R. Part 230.
Section 230.10 sets forth the specific requirements which discharge
proposals must meet in order to be permitted. The section implements
the CWA’s goal of maintaining and restoring the integrity-of the
nation’s waters by establishing strong protection against discharges
into special aquatic sites, which include wetlands. This section
includes what is often referred to as the “water dependency” or
“alternatives” test, and has been described as the “cornerstone” or
“linchpin ” of the section 404 regulatory program. Briefly, §230.10(a)
sets forth two rebuttable presumptions: that, for non—water dependent
*1 Section 231.2(e) defines “unacceptable adverse effect” as:
impact on an aquatic or wetland ecosystem which is likely
to result in significant degradation of municipal water
supplies (including surface or ground water) -or signifi-
cant loss of or damage to-fisheries,: shel-if-ishing,-or
wildlife habitat -or recreation -ar as. In;evaluatng::the -
unacceptability of such impacts, -consideration- hould be
given to the relevant portionè ofthe-section 404(b)(1)
guidelines (40 C.F.R. Part 230). -- -_
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—27--
activities (such as shopping malls) involving discharges into
special aquatic sites, there exist practicable alternatives to the
discharge; and that such alternatives would have less adverse
impact on the aquatic ecosystem.*/
One of the central issues, therefore, identified in my proposed
determination is whether there exist one or more practicable, less
environmentally damaging alternatives to Pyramid’s proposal to
fill Sweedens Swamp. / In analyzing this issue, I am mindful
that EPA regulations place the burden of proof on the permit appli—
cant. Specifically, it is not EPA’s burden to prove that there is
a practicable, less environmentally damaging alternative to filling
Sweedens Swamp; rather, Pyramid must prove that no such alternative
exists. In Sections V.B. and V.C., I explain the basis for my
conclusion that Pyramid has failed to overcome the two presumptions
cont4ined in the alternatives test.
/ Section 230.10(a) provides, in pertinent part:
1. Except as provided under section 404(b)(2) [ pertaining
to navigationj no discharge of dredged or fill material
shall be permitted if there is a practicable alternative
to the proposed discharge which would have less adverse
impact on the aquatic ecosystem, so long as the alterna-
tive does not have other significant adverse environmental
consequences.
2. An alternative is practicable if it is available and
capable of being done, after taking into consideration
cost, existing technology, and logistics in light of
overall project purposes. If it is otherwise a practical
alternative, an area not presently owned by the applicant
which could reasonably be obtained, utilized, expanded,
or managed in order to fulfill the basic purpose of the
proposed activity may be considered.
3. Where the activity associated with a discharge which
is proposed for a special aquatic site [ defined in Subpart
E to include wetlands] does not require access or proximity
to or siting within the special aquatic site in question
to fulfill its basic purpose (i.e., is not water depen—
dentu), practicable alternatives that do not involve
special aquatic sites are presumed to be available,
unless clearly demonstrated otherwise. - In addition, where
a discharge is proposed for a special aquatic site, all
practicable alternatives are presumed to have less ad-
verse impact on the aquatic ecosystem, unless clearly
demonstrated otherwise.
**/ Pyramid argués that EPA is bound-by the -finding of(,thè corpé -
of Engineers concerning the project’s. Compliance with the,,-
404(b)(1) guidelines. The D.C.-distriCt court -hãsrejected
that contentiOn. See Newport Galleria Group v. Deland, -et.ál.,
NO. 85—2747 (D.D.C.).
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—28—
B. Practicable Alternatives
To be considered practicable, an alternative to a proposed discharge
must be both feasible and available. Agai! , it is Pyramid’s burden
to prove that an alternative is not feasible or available. In the
following sections, I discuss these two elements of practicability
and Pyramid’s failure to overcome the presumption that there are
practicable alternatives.
1. Feasibility
First, an alternative must be capable of satisfying the basic, or
overall, purpose of the proposed project (taking into account cost,
technology, and logistics); i.e., it must be feasible. 40 C.F.R.
§230.l0(a)(2). The preamble and the regulations use the terms ubasic
project purpose and uoverall project purposeu interchangeably, but
do not specifically define them. The preamble clearly supports the
position that ubasic purposeu refers to the generic function of the
proposed activity. For example, as described in the preamble, the
basic purpose of a restaurant is to feed people. 45 Fed. •Reg. 85339
(December 24, 1980). In practice, EPA has consistently interpreted
the term to describe the broad function of the activity being proposed.
A c ntrary construction of the term, to mean the specific details
of an applicant’s preferre.d plan, would seriously undermirie*the
alternatives test, since an applicant for a 404 permit could almost
always structure its proposal so that the chosen wetland site would
be the only location that could satisfy the project purpose. For
example, the basic purpose of a residential development of one
kind or another is to provide housing, notwithstanding a developer’s
preference for housing of a particular type (e.g., condominiums),
a certain configuration, having a special view, or located near
specific roads. If such prescriptive, requirements were included in
the basic purpose, then an applicant could easily manipulate project
features to prevent fair evaluation of other alternatives.*/
The presumption that other practicable alternatives exist for non—
water dependent projects serves two functions. - host importantly,
it directs development away from sensitive aquatic resources.
Second, it preserves such sites for projects which truly require
access to water. The presumption correctly and logically recognizes
that non—water dependent projects can usually be located someplace
other than wetlands, whereas the range ofoptions- for waterdependent
projects is usually more limited. Too narrov a reading of basic
purpose substantially weakens the guidelines’, ability-to preserve
waters for water-dependfflt purposes and tó 1 prevent avoidable:losse
altogether. -
Similarly, permit applicants might :
waterfront view) to-make access to water-leelningly essential
and thus diréótly subvirtthe watër-dépChdei c Lt St.;ThiS-
approach has been rejected bythe gôverruEent and’:thecourts-
in• the past. See, e.g., Shoreline ssociites.v. .Karsh ,
555 F. supp. 169 (D. ltd. 1983), aff’d , 725 F.2d 677 -
(4th Cir. 1984). - -:
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—29—
The case at hand presents a striking example of the drawbacks of
construing “basic project purpose” too narrowly. Pyramid has
submitted detailed technical information in support of its choice
of Sweedens Swamp. Many of Pyramid’s site selection criteria are
quite narrow (e.g., the mall must be located on 1-95; the site
must accommodate single—level parking). The regulatory agencies,
lacking the industry expertise, would be at a great disadvantage
in determining whether the presumption has been overcome, if the
evaluation were required to be conducted entirely on the applicant’s
terms. In this case, the agencies were able to evaluate Pyramid’s
submissions in light of differing conclusions reached by another
well—established developer, at least with respect to one alternative
site. This coincidence is unlikely to be repeated often in the
future.
An interpretation of the guidelines to refer to an applicant’s
detailed project proposal would act as incentive for the applicant
to define a project to fit a preferred site, rather than to seek
the best upland site. Only if “basic project purpose” is read
broadly can the alternatives test be the workable protection against
widespread filling of wetlands that it was intended to be. Here,
the basic project purpose of the proposed activity is to provide
retail shopping. It is not necessary to determine how broadly
“retail shopping” should be construed, however, because in this
casé feasible alternatives exist for a more specific project
purpose, i.e., a shopping mall, offering quality” merchandise,
capable of serving a regional market.*/
2. Availability
According to 40 C.F.R. §230.10(a), in order to be practicable, an
alternative must be “available” as well as feasible. To overcome
the presumption, Pyramid bears the burden of proving thatalter—
natives are not available. A question has arisen concerning the
meaning of availability in the context of the alternatives analysis:
whether an alternative need only be available to someone for fulf ii—
ling the basic project purpose, or whether it further must be
available to the applicant . Under either interpretation, as the
later discussion of actual alternatives indicates, I believe
Pyramid has failed to overcome the presumption that there are
available alternatives.
/ In identifying a specific project pur ose here, I ant viewing
the project activity generically, rather than referring to
Pyramid’s actual proposal. As discussed in the following
section, an alternative capable of-satisfying the-basic -
project purpose need not be available to the-applicant.
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—30—
The regulation does not define available. The interpretation
followed by EPA and the NE Corps in the past is that an alternative
need not be available to the applicant.*/ I believe that con ider—
atioris of the overall integrity of the 404 program and the goals
of the CWA strongly favor Continuing to interpret the guidelines
to mean that an alternative is available if it could satisfy the
basic project purpose.
The regulation states that M (i]f it is otherwise a practicable
alternative, an area not presently owned by the applicant which
could reasonably be obtained, utilized, expanded or managed in
order to fulfill the basic project purpose of the proposed activity
may be considered.N 40 C.F.R. S230.l0(a)(2). Pyramid argues that
this language clearly means that the applicant must reasonably be
able to. obtain, utilize, expand, or manage such other area. In
making its argument, Pyramid assumes the very meaning which is in
question. The language does not say explicitly that the pplicant
must be able to obtain, utilize, expand, or manage the alternative
area. Instead, the regulation emphasizes the capability of a site
(even if owned by another) to fulfill in some fashion the basic
project purpose.
Pyramid attempts to find support for its position in the preamble
to the regulations. While the preamble does contain some l&igüage
consistent with Pyramid’s reading, it also contains language to
the contrary; on balance, the preamble is inconclusive. Since
neither the regulation nor the preamble clearly states whether
MavailabilityN is to be viewed from the perspective of the project
or the applicaflt,**/ EPA should resolve the ambiguity in favorQf
past practice and the basic purpose of section 404 of the Act,
which is to conserve wetlands (and other waters of the U.S.).
*/ See, for example, the February 19, 1985 telephone memorandum
— of the NE Corps discussing the imminent denial of Pyramid’s
permit: We are interpreting regulations the way we always
have, i.e., practicable alternatives are those available for
the purpose of the activity. --
/ Nor are the two cases on which Pyramid relies to support its in—
— terpretation of availabilitr persuasive. Neither case holds
what Pyramid argues it holds andboth are distinguishable fac-
tually. Both cases involved judicial reviews of final-permit
decisions under the deferential arbitrary andcapricious-
standard of review, and neither Specificallyl limited, the range
of reasonable interpretations fthégdeitne s.
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—31—
Strong policy considerations favor interpreting the guidelines to
mean that the availability and feasibility of alternatives are to
be viewed from the perspective of the basic project purpose rather
than strictly from the applicant’s perspective. This interpreta—
tion best serves the guidelines’ goal of avoiding the unnecessary
destruction of wetlands. It ensures that the filling of wetlands
will not be authorized as long as the public need (i.e., the basic
project purpose) can be served at an environmentally preferable
site.
To accept Pyramid’s interpretation, limiting the consideration of
alternatives to only those available to the applicant, would un-
reasonably skew the analysis in favor of filling wetlands. It
would mean, for example, that an alternative which is entirely
capab.le of accomplishing the project purpose and avoiding the wet-
land loss would be eliminated from consideration if the applicant
cannot obtain it, thus defeating the central purpose of the
section 404 program.
The scope of alternatives under the guidelines is directly analogous
to the scope of alternatives under the National Environmental
Policy Act (NEPA). (See the preamble to the proposal for the revised
guidelines, 44 Fed Reg. 54224, September 18, 1979). Indeed, NEPA
requires that federal regulations and policies be interpreted and
administered in accordance with NEPA policies. 42 U.S.C. §4332(1).
NEPA clearly mandates consideration of alternatives beyond the
control of the project proponent. Cf. NRDC v. Morton , 458 F.2d 827
(D.C.Cir. 1972). The Council on Environmental Quality (CEO) directly
addressed the scope of alternatives issue when asked if an EIS
prepared in conjunction with an application for a permit or
other federal approval must address alternatives outside the
capability of the applicant. CEO replied by affirming that NEPA
requires the consideration of all alternatives which are reasonable,
“whether or not the proponent or applicant likes or is itself
capable of carrying out a particular alternative.” (40 Most Asked
Questions on NEPA Regulations; 46 Fed. Reg. 18026, 18027 (1981)).
It would be anomalous indeed if an EIS (and EPA requested that the
*/ Pyramid mistakenly argues that construing availability to
— apply only to the basic project purpose resurrects the so—
called “necessary test” which was deleted fran proposed
section 230.10(e) (the forerunner of the final water depen-
dency test in section 230.10(a)(3)). That test would have
required, in cases where where there were no alternatives, -
that a permit be denied if the permitting agency concluded
that there was no public need for the proposed project. In-
terpreting availability to apply only to the basic-project
purpose does not require an evaluation of -whether th :public
needs the project. Rather, it assi.nnes, as I :have here, that
the need exists, and asks only-whether the need’cañ besatis—
Lied at a location other than a wetland. - -
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Corps prepare one in this case) found that there were feasible
alternatives to a wetland fill project only to have those same
alternatives discarded at the 404 permit stage because they were
“unavailable” from the applicant’s narrow perspective.
Requiring alternatives to be available to the permit applicant
in effect shifts the burden to the regulatory agencies to prove
that alternatives which otherwise may be practicable are available
to the applicant. In evaluating an applicant’s attempts to rebut
the presumption, EPA would be forced to ascertain what the appli-
cant was or was not able to do, whether certain real estate was or
was not on the market, what does or does not constitute a reasonable
business risk for that applicant, and so forth, based on informa-
tion solely within the knowledge and control of the applicant.
Moreover, if an applicant chooses not to provide sufficient infor-
mation; it may be nearly impossible to unravel the tangle of
real estate and financial transactions that may have a bearing on
the issue.
In this case, for example, the record contains conflicting informa-
tion concerning whether and when the North Attleborough site (see
discussion below) was available to Pyramid. In order to reconcile
these inconsistencies, EPA sent a letter to Pyramid on November
18, 1985 requesting specific information concerning Pyramid’s
“entry t ’ to the market, how it conducted its evaluations, what was
available and when, etc. Pyramid refused to respond to EPA’S
specific questions, and instead referred EPA to Pyramid’s earlier
submissions. In addition to conflicting statements concerning
the North Attleborough site, Pyramid provided virtually no information
about the availability of other sites. As this case demonstrates,
the presumption becomes unworkable as a practical matter if
availability is evaluated only from the applicant’s perspective.
The water dependency test, in turn, is rendered meaningless.
Admittedly, it will not always be easy for the regulatory agencies
to determine the availability of alternatives to satisfy the basic
project purpose. This approach nevertheless poses far fewer prob-
lems than the approach advocated by Pyramid. There are ways of
evaluating availability for the basic project purpose that do not
depend entirely on what the applicant is willing to disclose.
Public comments on a permit application can provide useful infor-
mation. The agency can hire a consultant to do a market analysis
or market survey, as the NE Corps did in this case. For many
projects, an EIS will be the vehicle for gathering substantial
information on alternatives available to satisfy the basic project
purpose. From this information, the agencies can evaluate whether
an applicant has rebutted the presumption. / The usefulness of an
/ For example, The NE Corps prepared an EIS in connection with a
— 404 permit application for the North Haven Mall. Extensive
information was developed on alternatives —— far more extensive
than exists in this case. (That permit was ultimately denied,
since the project was found not to be in the public interest.)
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EIS is substantially diminished if alternatives disclosed in the
EIS cannot be considered in the 404 permit proceeding because they
are not available to the applicant.
The interpretation of the alternatives test to apply to the project
rather than to the applicant need not work an undue hardship on ap-
plicants. Where upland alternatives exist which could satisfy the
project purpose, it is appropriate for’ the presumption to stand firm
in forcing the upland alternatives to be chosen (provided they are
less environmentally damaging). While this may result in a particular
applicant’s inability to pursue its particular project, the overall
purpose of the Act is furthered.*/ Particularly where (as here) a
wetland has been purchased well after the effective date of the
guidelines, the denial of a permit in such circumstances is justi-
fiable. The developer takes the risk that a permit to fill may be
denied, since there is no right to fill wetlands. /
For the reasons stated above, I believe that the 404(b)(l) guide-
lines require that an applicant, in order to rebut the alternatives
presumption, must demonstrate that there are no alternatives
available to satisfy the basic project purpose, without regard to
whether alternatives are available to that applicant. In this case,
there clearly are alternatives available to satisfy the basic
project purpose, as described below. In addition, also as dis-
cussed below, even if alternatives were required to be available
to the applicant, I believe that Pyramid has failed to rebut the
presumption that such alternatives existed at the time Pyramid was
in a position to obtain other sites.
3. Practicable Alternatives to Filling Sweedens Swamp
In evaluating whether Pyramid has overcome the presumption that
there are practicable (i.e., feasible and available) alternatives
to the discharge, attention has focused primarily on a site located
approximately three miles north in North Attleborough, Massachusetts,
/ Where wetlands are less expensive to purchase than uplands,
— Pyramid’s interpretation could result in encouraging more
marginal companies to attempt to develop wetland areas. Per-
mits would be more likely to be granted, since such companies
would be less able to compete in the market for upland sites
and could, therefore, demonstrate that there were no practicable
alternatives open to them. Clearly, this is not desirable. In
addition, Pyramid’s interpretation penalizes the developer who
avoids wetlands in favor of an upland site, only to discover
that a competitor’s permit for the filling of a wetland site
is granted because the upland site is already “taken.”
**/ Certainly Pyramid can claim no hardship in -this case. When
— Pyramid acquired control over Sweedens Swamp, the Statie had
already denied a state-permit to fill the wetlands. Pyramid
was fully cognizant of the risks associated with an attempt to
develop this site.
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because more information exists about this site than other sites.
However, my proposed determination did not limit the inquiry to
the North Attleborough site, and the record contains information
on other sites as well. Based on the record, I find that Sweedens
Swamp is not the only site available which can satisfy the basic
project purpose of retail shopping, as well as the more specific
project purpose of a regional shopping mall offering quality me-
rchandise. The following is a discussion of some of these alterna-
tives.
a. North Attleborough Site
The North Attleborough site is located immediately south of the
interchange of U.S. Route 1 and 1—295, approximately three miles
north of Sweedens Swamp on Route 1. It is approximately 57 acres
in siz and is zoned for commercial use. New England Development,
Inc. (formerly State Properties of New England), currently controls
the site, on which it plans to build a regional shopping mall
offering 625,000 square feet of leasable area and anchored by
three “quality” department stores.*/
Pyramid included an evaluation of the North Attleborough site
in its July, 1984 404 permit application. Pyramid had rejected the
site, concluding that it was not a practicable alternative to
building its mall at Sweedens Swamp. / Several commenters to the
NE Corps, including EPA, expressed the belief that the North Attle—
borough site should be considered a practicable alternative due to
/ I find no basis to conclude, as Pyramid asserts, that New
— England Development IS merely trying to leverage Pyramid into
a joint partnership at the Sweedens Swamp site by pretending
to be interested in building at the North Attleborough site.
New England Development has acquired control over the site,
obtained a zoning change, applied for a variety of permits,
and completed a lengthy environmental impact report. Nothing
in the record indicates that all of this activity is a charade.
Moreover, New England Development appears to have a well—estab-
lished presence in New England.
**/ Pyramid’s description of the site was not very accurate. For
— example, Pyramid stated that there were 30 acres of vegetated
wetlands present, according to various maps and confirmed by
Pyramid’s “independent investigation.” In fact, according to
investigations by EPA, FWS, and NE Corps experts, less than one
acre of wetlands exists at the site. In addition, Pyramid stated
that installation of a sewer system to service the site (coupled
with the need to purchase adjacent property) would be prohibitively
expensive. Actually, a sewer system had already been installed
by the property owner. Finally, Pyramid stated that: two—thirds
of the site was zoned residential, whereas only 37% of the
site was so zoned.
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its size, the small amount of wetlands present, and its location
within the trade area to be served by Pyramid’s project. Since
that time the record has been supplemented with additional, and
conflicting, information.
Feasiblility of the North Attleborough Alternative
As a general matter, an applicant’s submission of information
clearly within its expertise is normally accepted by the Agency.
Where the information seems questionable, illogical, or in conflict
with other available information, however, EPA must exercise its
independent judgment to determine whether the presumption has been
clearly rebutted. The preponderance of evidence in the administra-
tive record in this case shows that the North Attleborough site
can satisfy the basic project purpose of providing retail shopping.
The site is large, it is properly zoned with the necessary infra-
structure, and it is located within a defined trade area. In
addition, as discussed below, the site also satisfies a more spe-
cific purpose of a regional shopping mall offering “quality” or
“fashion—oriented” merchandise. New England Development has pro-
vided information confirming that the North Attleborough site is
viable to support a regional mall. The NE Corps’ independent
consultant, William Badger, reached the same conclusion in his
January 1985 analysis,*/ as did the NE Corps in its May 1985 “risk
analysis” of this alternative site.
Pyramid has presented various technical criteria which it asserts
must be satisfied in order for a site to be capable of supporting
a regional, fashion—oriented shopping mall. In Pyramid’s view,
only the Sweedens Swamp site can meet these criteria. While dis-
agreeing that the alternatives test requires Pyramid’s criteria to
be met, I conclude that the North Attleborough site satisfies
most of those criteria and, more importantly, can support a viable
shopping mall.
Pyramid states that the site is too small to support a shopping
mall. Pyramid proposes to build a two—level structure providing
approximately 700,000 square feet of leasable floor area (and
associated roads and parking) on about 49 acres at the Sweedens
*/ Pyramid has questioned Mr. Badger’s independence, arguing that
his conclusions should be rejected because of a letter he sub-
sequently wrote to the Region supporting the initiation of the
404(c) procesS. I find there is no reason to believe that Mr.
Badger did not conduct an objective analysis or that his conclu-
sions were improperly influenced. Indeed Pyramid’s con sultant,
HSG/Gould Associates, stated, “It appears that Mr. Badger conducted
a very even—handed analysis..,.” I assume that Mr. 1 Badger’s
support for EPA’S 404(c) action flowed fran his conqiusion that
the North Attleborough site was practicable, not vice versa.
His letter to EPA was written approximately 7 months after he
completed his analysis for the Corps.
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Swamp site. New England Development proposes to build a two—level
structure providing 625,000 square feet of leasable floor area
(and associated roads and parking) on approximately 44 acres at
the Nort. Attleborough site. The proposed square footage and size
of the “footprint” of each development are roughly equivalent;
thus it cannot be said that the North Attleborough site is too
small. Even if they were not so close in size, I believe that the
North Attleborough site is large enough to support a regional
mall. I base this conclusion on the Badger report and on
information submitted during the comment period concerning the
viability of sites supporting shopping malls with higher density
configurations (described further, below).
Pyramid also rejected the North Attleborough site because it is
“too far north” of the primary trade area it had delineated. Even
accepting Pyramid’s delineation of the primary trade area, I find
Pyramid’s arguments unconvincing on this point as well. The site,
located near the geographic center of Pyramid’s trade area, is
only three miles north of Sweedens Swamp. According to Pyramid’s
own consultant, HSG/Gould Associates, the site is only six minutes
(driving time) further from the densely populated sections of the
trade area. It is still within a 15—20 minute drive from the far-
thest (i.e., southern) fringe of the trade area, and it is a mere
two miles west of Interstate 95. Mr. Badger states in his analysis
for the Corps that the location of the North Attleborough site is
“almost ideal” from a market point of view. The marketing analysis
conducted for New England Development reaches a similar conclusion.
Thus, I find that the record shows that the North Attleborough
site is a viable location for a shopping mall of this type.
Further, Pyramid argues that the North Attleborough site is not vis-
ible from 1—95 and therefore will be unable to attract sufficient
shoppers. First, it should be noted that the North Attleborough
site is located on an interstate highway (1—295). The Badger
report notes that visibility from 1—295 and U.S. Route 1 is excel-
lent. Badger also concludes that visibility in general is not an
“overly important” consideration. “Access, closeness to market,
and potential to create a point of destination for buyers is more
important.” Both Pyramid and New England Development have ident-
ified a strong “need” within the area for department—store type
merchandise. It is therefore reasonable to conclude that the
market can support a mall which serves destination shoppers and
does not rely on attracting errant highway travelers bound for
other activities in other locations. Interested shoppers could
presumably locate the mall even if it were not visible from any
highway.
Pyramid asserts that highway access to the North Attleborough site
is poor. Badger, by contrast, states that the location provides
“excellent” road access via 1—95, Route 1, Route 1A, and 1—295.
While the latter roads are currently less well traveled than 1—95,
Badger concludes that a mall at the North Attleborough site will
create its own traffic by providing its own draw. New England
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Development’s consultant, Realty Development Research, Inc., similarly
concludes that the site enjoys good access within the trade area.
In some of its later submissions, Pyramid states that one of the
main reasons it rejected the North Attleborough site was because
of improper zoning (at the time it was evaluating the site).
However, in its October 1984 supplement to its 404 permit applic-
ation, Pyramid states quite clearly that the site was not rejected
because of its improper zoning. Pyramid explained that “ [ miost
large regional shopping center sites have zoning, infrastructure
and environmental constraints at least as severe as those affecting
the North Attleborough I site. Had the ... location been acceptable,
this site would have warranted our attention as a practicable alter-
native....” The zoning of the site has, through New England Develop—
ment’s ef forts, been changed to accommodate a regional shopping
mall.
In support of its claims that the location of the North Attleborough
site is unacceptable, Pyramid asserts that no department stores are
willing to locate there, as evidenced by a history of past develop-
ment failures. Pyramid also stated that before acquiring Sweedens
Swamp it tried to persuade department stores to locate at another
site in the area.*/ The Badger report, as well as New England Devel-
opment’s feasibility analysis, convince me that with the current
market strength, past development failures are not conclusive.
Since, as both developers insist, a strong market “need” for this
type of shopping mall exists, if the Sweedens Swamp site were not
available for development because of envfronmental considerations,
it is difficult to believe that department stores would not locate
at the North Attleborough site. The letters from department
stores which were submitted by both Pyramid and New England Devel-
opment are inconclusive, suggesting that the stores are waiting
to see which site will materialize first. Moreover, there may
well be other “quality” department stores interested in locating
at either site.
Finally, Pyramid and others urge rejection of the North Att].eborough
site due to various practical problems, including traffic and water
quality concerns, the proximity of an elementary school, and public
opposition to the project. Any large development is likely to pose
difficulties that will require time, money, and proper planning to
*1 EPA requested Pyramid, in the November 18, 1985 information
— request, to document its claims that it tried to persuade de-
partment stores to locate at a site other than Sweedens Swamp.
- Pyramid refused to respond to this request for information,
- referring EPA to items it had already submitted. The record
does not contain support for Pyramid’s assertion. -
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overcome, and the North Attleborough site is no exception. Some
specific concerns raised by Pyramid and others are addressed in more
detail in Appendix D. Here, I will simply note that many of the
difficulties at the North Attleborough site also confronted Pyramid
at the Sweedens Swamp site, including water quality, flooding, and
traffic concerns, and the proximity of an elementary school.
Public support and opposition exist at both sites. Pyramid was not
daunted by these difficulties at the Sweedens Swamp site, and it is
hard to understand why these problems loom so large for Pyramid
when it evaluates the North Attleborough site. While issues have
been raised in the public comments on the draft environmental impact
report for the North Attleborough mall project, at this juncture it
appears that these problems are solvable and will be addressed in
the course of the final environmental impact review by the State.
As the discussion above demonstrates, the record supports the
conclusion that the North Attleborough site is feasible for the
basic project purpose of retail shopping, and for a more specific
purpose of a regional shopping mall offering quality merchandise.
Whether the North Attleborough site is the best site within the
trade area is not the issue. In Pyramid’s view, the Sweedens Swamp
site is by far the preferred site (with its Nexcellentw location,
access, and visibility). The alternatives test, however, requires
only that other sites be feasible, not that they be equally desir—
able. Based on the record I find that Pyramid has not met its
burden to show that Sweedens Swamp is the only feasible alternative.
Availability of the North Attleborough Alternative
The North Attleborough site is certainly available to satisfy the
basic project purpose. Another mall developer has acquired control
over numerous parcels of property and plans to develop the site
for retail shopping similar in type and size as that proposed for
Sweedens Swamp. The site has been available for this purpose since
well before the NE Corps’ permit decision. Moreover, even if
alternatives were evaluated from the applicant’s point of view, I
find two separate bases for concluding that Pyramid has not over-
come the presumption of available alternatives.*/
Fhirst, Pyramid has made conflicting statements concerning the
availability of the orth Attleborough site at the time it was
making its decision to locate a mall in the area. In its permit
application and supplement and in subsequent meetings with the NE
Corps and EPA, Pyramid stated only that it had rejected the site
/ If alternatives are evaluated from the perspective of the appli-
cant, another question arises: When must the alternative be
available? It is difficult to fashion.a hard and fast rule
which would best serve the guidelines’ goal of preserving
wetlands. Indeed, Pyramid has, over time, argued dif’ferent
positions on this issue. Under the circumstances of this case,
I believe it is reasonable to evaluate availability at the time
Pyramid was in a position to obtain other sites.
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for feasibility reasons, not because it had been unavailable. In
July and August, 1985, Pyramid partner John Bersani confirmed that
the North Attleborough site was available to Pyramid, and that
Pyramid had rejected the site due to its location. See The Boston
Globe , July 29, 1985, p.16; The Boston Herald , August 26, 1985, p.26.
That statement was later contradicted in an affidavit filed by
Mr. Bersani in the litigation described in Section II above. In
his affidavit, filed September 16, 1985, Mr. Bersani stated that
Pyramid had not begun to investigate and analyze the trade area
until “approximately September 1983” and that therefore the site
had been unavailable.
The record indicates that New England Development began acquiring
control over property at the North Attleborough site in July, 1983,
and completed its acquisitions in February, 1984. The record is
not clear when Pyramid began its investigations of the area and
made its various business decisions culminating in its acquiring
control over Sweedens Swamp in late 1983 or early 1984. It does
appear from statements made by Pyramid’s predecessor, the DeBartolo
Corporation, and by New England Development, that it is standard
practice for the retail development industry to stay abreast of
activities and market trends in areas of interest, well in advance
of making site acquisitions. In its November 18, 1985 letter to
Pyramid, EPA attempted to gain a better understanding of when
Pyramid “entered the market” by asking detailed questions concerning
Pyramid’s contacts with realtors, department stores, DeBartolo,
and various property owners. Pyramid initially refused to answer
these specific questions. When requested by EPA to reconsider
its refusal, Pyramid responded on Decernb&r 17, 1985 that, with
respect to the existence of further or more detailed information
about the project and alternate sites, “...there is no further or
more detailed information. It simply does not exist.” In determining
whether Pyramid has rebutted the presumption, I must evaluate the
credibility of the information that has been submitted. Pyramid
has in the past made inaccurate statements about the character of
the North Attleborough site (see page 34, s pra), and conflicting
statements about its availability. Pyramid further has refused to
provide information so that I could reach an independent judgment
of when it entered the market. In weighing all of the information,
I conclude that Pyramid has not overcome the presumption that the
North AttlebOrOugh site was available to Pyramid.
A second basis for concluding that Pyramid has not overcome the
presumption is that under the particular facts in this case, Pyra-
mid ought to be bound by the alternatives that were available to
its affiliate, Attleboro Mall, Inc.
On March 13, 1985, the state Department of Environmental Quality
Engineering (DEQE) granted a state permit (a Superceding Order of
Conditions) to Attleboro Mall, Inc., an affiliate of Pyramid, for
the filling of Sweedens Swamp. This decision followed a iengthy
adjudicatory hearing, in which one of the issues was whether Attle—
boro Mall, Inc. must file a new notice of intent with the local
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Conservation Commission because it was not the original applicant
and because the plans submitted with the original notice of intent
had been revised by Pyramid.*/ Pyramid argued that its new proposal
to build a shopping mall should be treated ..s a continuation and
improvement of the earlier mall proposals made by Mugar and DeBar—
tolo. / The DEQE agreed with Pyramid and ruled that a successor
in interest could substitute itself for the prior owner and continue
in the proceedings without filing a new notice of intent.
Pyramid’s claim that it should assume the rights of the original
applicant for the state permit meant that Pyramid’s proposal was
evaluated by the State under regulations that had been in force
at the time of the original permit application, rather than under
the more stringent regulations which took effect in 1983. Undoubtedly,
the state permit would not have been granted under the new regulations,
since they prohibit the filling of more than 5000 square feet of
bordering vegetated wetlands.***/ 310 C.M.R. 10.55. This fact was
acknowledged by the State in its final decision.
Now that it has secured the state permit (without which it would
not be entitled to a federal permit, see 33 C.F.R. S320.4(j)) by
standing in the shoes of its predecessor, Pyramid wishes to step
out of those shoes and be treated as an entirely new entity for
*/ The original notice of intent was riled by the Mugar Group,
Inc./Federated Stores Realty, Inc. in March, 1979. The local
Conservation Commission’s approval of the project was appealed
to DEQE. During the appeal process, Mugar conveyed ownership
of the Sweedens Swamp site to Attleboro Mall, Inc., then an
affiliate of the Edward J. DeBartolo Corporation. In April,
1982 DEQE issued a superceding Order to Attleboro Mall, Inc.,
denying the project. Subsequent to the denial, Pyramid obtained
control of Attleboro Mall, Inc. and pursued a challenge of the
DEQE denial through an adjudicatory hearing.
/ In contrast, when DeBartolo controlled Attleboro Mall, Inc.,
— the corporation argued that its project was a new proposal
and that the State should allow it to seek an new permit from
the local Conservation Commission rather than holding a hearing
tied to the denial of Mugar’s application. Once Pyramid ac-
quired control of Attleboro Mall, Inc., the corporation changed
its position and argued that it should succeed to the rights of
the original applicant, and that it wished to pursue its appeal
based on a new proposal but without starting over at the local
level.
Pyramid proposes to fill approximately 1,400,000 s uare feet
of bordering vegetated wetlands.
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purposes of the alternatives analysis under federal regulations.**/
Since Pyramid acquired the rights of its predecessor, it ought —
also to be bound by the obligations of its predecessor — including
the obligation to choose an upland alternative. Under the particu-
lar circumstances in this case, I believe that alternatives avail-
able to Attleboro Mall, Inc. while it was under the control of
both DeBartolo and Pyramid should be considered.
During the period that Attleboro Mall, Inc. has been in existence
and has been actively engaged in plans to build a shopping mall at
Sweedens Swamp, the North Attleborough site was available for
purchase prior to New England Development’s acquisition of control
over the site. The record indicates that the DeBartolo Corporation
expressed an interest in the site to a local realtor who was of fer—
ing it, but did not pursue an acquisition. Under these circum-
stances, I cannot conclude that Pyramid has met its burden of
proving that the North Attleborough site was not available to
Attlebo-ro Mall, Inc.
iii. Summary
In conclusion, I believe, based on the record, that Pyramid has
failed to overcome the presumption that the North Attleborough
site is a practicable alternative to filling Sweedens Swamp. The
site is available to serve the basic project purpose of retail
shopping, as well as a more narrowly defined purpose of a regional,
quality shopping mall. Even if the site needed to be available to
Pyramid, I conclude that Pyramid has not clearly demonstrated that
the site was unavailable to it or its immediate predecessor in in-
terest.
b. Other Alternatives
Comments in response to my proposed determination suggested that the
North Attleborough site is not the only alternative to the discharge
to Sweedens Swamp. Other sites discussed in Pyramid’s permit
application and supplement to its application were suggested for
further evaluation. In addition, a site in Seekonk, Massachusetts,
has recently come to our attention as the proposed location for
another regional, fashion oriented shopping mall. Some of these
alternatives are discussed below.
Washington Plaza Site
One of the alternatives evaluated and rejected by Pyramid was the
expansion of an existing facility at the Washington Plaza site,
located at the junction of Route 1 and Highland Avenue in Attleboro,
near the intersection of Routes 1 and 1A. The site, which is over
27 acres in size, currently contains a strip shopping center. It
is zoned “planned highway business”, and is located in the midst of
an urbanized area. The Plaza is only 1.25 miles south of Sweedens
Swamp and the interchange of Newport Avenue (Route 1A) and 1—95.
• The Newport Galleria Group, another Pyramid affiliate, applied
— for the federal permit. On February 10, 1985, Attleboro Mall,
Inc. conveyed the Sweedens Swamp site to the Newport Galleria
Group in exchange for $10.00.
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Adjacent to this parcel, on the west, is a large tract (approximately
20—40 acres) of wooded land, primarily a mixed Quercus alba/Pinus
strobus (white oak/white pine) forest on apparently well—drained
soils. This tract appears to provide the potential for expanding
the Washington Plaza site, although it is currently zoned single
family residential.”
Pyramid stated in its application that this site is impracticable
because it suffers from the same deficiencies of another site it
evaluated (Tri—Boro Plaza). Summarizing those deficiencies at the
Tri—Boro Plaza site, Pyramid asserted that the cost of demolition
of the existing structures, site expansion, and highway improvements
would be prohibitive. Pyramid also stated that the department
stores were unlikely to locate there because of the poor location.
In EPA s November 18, 1985, information request to Pyramid, we
sought additional information on which Pyramid based its conclusions,
including the estimated costs of building demolition, highway
expansion, and traffic improvements; and a description of the
efforts made to ascertain the availability of surrounding property.
The inquiry concerning costs is particularly important in light
of Pyramid’s willingness to spend millions of dollars to create an
artificial wetland in order to obtain a permit to fill Sweedens
Swamp. Pyramid refused to supply any of this information. EPA in
a December 6, 1985 letter requested Pyramid to reconsider its
refusal to answer EPA’s questions. In his December 17, 1985 response,
John Bersani stated that N there is no further or more detailed
information. It simply does not exist.”
AS with the North Attleborough site, I remain unconvinced that the
location of the Washington Plaza site renders it infeasible, since
it is scarcely more than one mile from Sweedens Swamp and is located
near an interchange with 1—95. With respect to the other alleged
deficiencies of the site, Pyramid has asserted conclusions but
submitted no detailed information. Because Pyramid has not sub-
stantiated its claims that development of this site would be pro-
hibitively expensive, I cannot conclude that Pyramid has met its
burden on this issue. Finally, Pyramid provided no information on
the availability of this site and therefore has not overcome the
presumption that the site is available.
Seekonk Site
The Seekonk site is a 79 acre parcel of land located on the southern
side of Route 6 in Seekonk, Massachusetts. Seekonk is the town on
the southern border of Attleboro, and is bordered to the west by
East Providence, Rhode Island. The site is within a half mile of
Interstate 195, and approximately five miles from 1—95 and seven to
eight miles from Sweedens Swamp. The site is currently an abandoned
drive—in theater and vacant land.
In September, 1985, a Rhode Island developer, Marathon Group of
Companies, Inc., announced plans to build at the site a quality
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merchandise regional shopping mall anchored by three department
stores. Marathon currently plans to build a two—story structure
with 540,000 square feet of floor space (including separate cinema,
commercial building, and restaurant structures) covering 35—40
acres of the site. An existing Ann & Hope department store adja-
cent to the site would be included in the complex for a total of
nearly 800,000 square feet of retail space.
Because Marathon’s project is at a much earlier stage of development,
the record does not contain as much information as exists on the
Attleboro and North Attleborough mall proposals. What is available,
however, indicates that the site is capable of satisfying the basic
project purpose of retail shopping, as well as the more narrowly
described purpose of a regional, quality shopping mall. The site
is large, it is properly zoned, and a developer with other malls
in the northeast has concluded that its location is satisfactory
to support a regional shopping mall.
Some potential problems with the site do exist. In particular,
traffic improvements and increased fire and police protection may
be needed, and potential difficulties posed by the proximity to
the Runnins River flood plain must be addressed. (Similar problems
were overcome by Pyramid at the Attleboro site). Despite these
potential problems, the Seekonk Planning Board approved Marathon’s
proposal with a unanimous vote on January 14, 1986.
The Seekonk site is located in the southeast portion of Pyramid’s
defined trade area; in fact, it is in one of the most densely
populated sections of the trade area according to Pyramid’s 1983
retail market analysis. Pyramid states that the Sweedens Swamp
site is the “best” site within the trade area. Again, even if
that is correct, the alternatives test does not require that an
alternative be the “best”, only that it be feasible.
The Seekonk site would likely serve a market that overlaps, but is
not identical to the market delineated by Pyramid. Nevertheless,
I believe it can fairly be considered an alternative under the
guidelines. The geographic scope of the alternatives inquiry
need not be confined solely to Pyramid’s defined trade area. It
is is reasonable to include in the analysis a site within the same
general vicinity drawing on overlapping, although not identical,
population areas.
The Seekonk site is available now to carry out the basic project
purpose. Whether the site was ever available to Pyramid is unclear.
It appears that this property in Seekonk has been available for
development and shopping mall construction for most of the period
fran 1974 to the present. The property owner has stated that the
drive—in portion of the site was under lease since 1979, with the
most recent lease being fran September, 1983 — September, 1984.
At the same time, however, it appears that the property was avail-
able for sale or lease. According to Armand Ricci, a real estate
broker active in the area, he approached the property owner on
June 18, 1984, on behalf of a client who wanted to develop the
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site. While the property was available, mutually agreeable terms
were not reached and nothing came of the project. Marathon repre-
sentatives also have stated that they believed the site had been
available to developers since the 1970’s. Marathon began negotia-
tions with the property owner in early 1985 and completed the
purchase of options in late spring, 1985.
Pyramid did not address either the feasibility or the availability
of the Seekonk site. Whether this site was one whichPyramid
evaluated during its initial screening is unknown, since Pyramid
refused to answer EPA’s November 18, 1985 request for additional
information (which included a request for the names and locations
of all sites evaluated, and all realtors contacted).
In summary,.the record supports a finding that the Seekonk site is
a practicable alternative to the filling of Sweedens Swamp, since
it isavailable to satisfy the basic project purpose of providing
retail shopping, and the more specific purpose of a regional,
fashion—oriented shopping mall. Pyramid has not clearly demon-
strated that the site is not practicable.
Additional Sites
Pyramid states in its application for a 404 permit that it identi-
fied and evaluated “numerous” potential sites in the primary trade
area. Following initial screening, four undeveloped sites
(including Sweedens Swamp) were identified as worthy of additional
investigation. These sites, along with Tri—Boro Plaza, Washington
Plaza, and Central Business Districts, a e the alternatives discussed
in the application.
The Environmental Defense Fund has submitted information describing
successful multi—story malls with multi—level parking in Massachu-
setts as well as other parts of the country. Because of their
design, such developments require less land than two—story malls
with single level parking. Pyramid does not appear to have con-
sidered locating its mall on a smaller parcel of land using a
higher density design. Pyramid refused to respond to EPA’S Novem-
ber 18, 1985 request for information concerning the location and
size of each potential site it investigated, and the criteria used
to conduct initial screening and evaluation of potential sites
(such as minimum acceptable site size). Thus, there may be parcels
available within or near the trade area which are of sufficient
size to satisfy the basic project purpose of retail shopping, or
even the purpose of a regional shopping mall. It is not EPA’S
obligation to determine the existence of those other sites; rather,
it is Pyramid’s burden to show that there are no other sites.
4. Conclusion
I believe based on the record that Pyramid has not met its burden
of clearly demonstrating that there-are no practicable a lternatives
to the proposed filling of Sweederis Swamp. The North Attleborough
site seems clearly to be a practicable alternative. In addition,
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the mall proposal for the Seekonk site seriously undermines Pyramid’s
claim that Sweedens Swamp is the only location within the trade
area where a mall could be built. The absence of specific informa-
tion supporting Pyramid’s rejection of the Washington Plaza site
is not sufficient to overcome the burden with respect to that
site, where the site otherwise appears to be a possible candidate
for the location of a shopping mall, given its location within the
trade area and its potential for expansion. Even without expansion,
that site, as well as others in the area, may be able to support a
shopping mall using a higher density configuration than that advo-
cated by Pyramid.
Pyramid seems to have approached the alternatives analysis in a way
that would guarantee that it would find Sweedens Swamp to be the
only feasible alternative. Some of the information about other
possible alternatives has been inaccurate (e.g., the North Attle—
borough site) or incomplete (e.g., the Washington Plaza site).
When requested to provide additional information, Pyramid first
refused and then stated that no additional information exists about
the project or about alternatives. It seems remarkable that Pyramid
has no further information in response to the very specific questions
EPA asked about alternatives (such as the location and size of each
potential site investigated by Pyramid, the criteria used to conduct
the initial screening of those sites, etc.). If this statement is
true, then I certainly question the extent and depth of Pyramid’s
alternatives investigation.
The nature of Pyramid’s submissions, coupled with the fact that two
other developers are planning malls similar in type and size to
Pyramid’s proposal within the same trade area, make it impossible
for me to conclude that Pyramid has clearly demonstrated that no
practicable alternatives to the filling of Sweedens Swamp exist.
C. Less Environmentally Damaging Alternatives
Under the guidelines, “no discharge of dredged or fill material
may be permitted if there is a practicable alternative to the
discharge which would have less adverse impact on the aquatic
ecosystem, so long as the alternative does not have other signif i—
cant adverse environmental consequences.” 40 C.F.R. §230.10(a).
practicable alternatives “which do not involve a discharge into a
special aquatic site are presumed to have less adverse impact on
the aquatic ecosystem, unless clearly demonstrated otherwise.” 40
C.F.R §230.lO(a)(3). Thus in evaluating practicable alternatives
to the filling of Sweedens Swamp, I must determine whether Pyramid
has met its burden of proving that the alternatives have a greater
adverse impact to the aquatic ecosystem. I also must consider
whether such alternatives have other significant adverse environ-
mental consequences. - -
The Corps based its decision to issue a permit to Pyrami on a
novel and, I believe, incorrect interpretation of the requirement
that a permit be denied if there is a less environmentally damaging
alternative to the proposed discharge. In considering the alterna—
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tives requirement of 40 C.F.R. §230.10(a) from the public interest
(as opposed to the applicant’s) perspective, General Wall (then
Director of Civil Works at Corps Headquarters) acknowledged that
the Sweedens Swamp site would require the filling of many more
acres of wetlands than the North Attleborough site and that without
mitigation the filling of Sweedens Swamp would clearly have greater
adverse impacts on the aquatic ecosystem. With mitigation, however,
General Wall concluded that there would be a net benefit to the
aquatic environment.
The General reasoned that, “if mitigation measures can fully compen-
sate for all adverse impacts of a proposed discharge on the aquatic
environment, then the adverse effects of the proposed discharge is
zero. Since no alternative could have less adverse environmental
effect than zero, 100% mitigation would allow the satisfaction of
that 404(b)(l) guidelines requirement even if a practicable upland
alternative site might be available.” In support of this interpre-
tation, he cited a passage in the preamble to the guidelines which
states that, “where there is no significant or easily identifiable
difference in impact, the alternative need not be considered to
have ‘less adverse’ impact.” 45 Fed. Reg. 85339. General Wall
concluded that “in a proper case, mitigation measures can be said
to reduce adverse impacts of a proposed activity to the point
where there is no ‘easily identifiable difference in impact’ between
the proposed activity (including mitigation) versus the alternatives
to that activity.” Thus, the Corps allowed mitigation to be used
to rebut the presumption that there are less damaging practicable
alternatives and determined that Pyramid’s proposed discharge,
when coupled with its mitigation proposal, complied with 40 C.F.R.
§ 230 • 10*,.
The interpretation of the “less adverse impact” portion of the
guidelines articulated by the Corps in this case is a marked depar-
ture from the normal application of the alternatives test. / The
proper interpretation of the guidelines——and the relationship
between mitigation and alternatives——is a central issue in this
case. I believe that the guidelines authorize mitigation to com-
pensate for unavoidable losses; mitigation cannot be used to justify
avoidable losses. My reasons for this position are explained more
fully in Section VI. In determining whether Pyramid has overcome
the presumption that alternatives would have a less adverse effect
/ By taking this approach, General Wall avoided addressing directly
— the issue of whether alternatives need to be available to the
applicant or only for the project purpose. Regardless of the
answer to that question, the Corps decided that with enough
mitigation, a proposed discharge can rebut the presumption.
The approach also is at variance with the Corps’ historical
— interpretation of the guidelines. The New England -E ivision’s
proposed decision, for instance, found that the project did
not comply with the guidelines because there was a practicable
alternative that would have less adverse impact to the aquatic
ecosystem.
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on the aquatic environment, I have declined to follow General Wall’s
approach. Instead, I have evaluated alternatives to the discharge
without considering the mitigation component of Pyramid’s proposal.
1. North Attleborough Site
As demonstrated earlier, the North Attleborough site is a prac-
ticable alternative to the filling of Sweedens Swamp. I further
conclude based on the record that constructing a shopping mall at
the North Attleborough location would have a less adverse impact
on the aquatic environment than at the Sweedens Swamp site.
a. Site Description
The majority of the site consists of upland shrub habitat, old
field, and developed lands (dilapidated commercial structures and
parking areas). Approximately 40% of the site has been stripped
of its topsoil. The site is on a hillside which slopes west and
east. Prior excavation and removal of vegetation has left a poorly
graded area of very small depressions and swales. Approximate
acreages for the various vegetative covertypes on the site are:
upland shrub (25.5 acres), upland forest (12 acres), developed
areas (10.4 acres), disturbed field (3.0 acres), abandoned field
(5.4 acres) and isolated wetlands (0.8 acres). The largest indivi-
dual wetland is .26 acres. The National Wetland Inventory (NWI)
Map which encompasses this area does not designate any wetlands at
the site. Field verification by NWI personnel in September 1984
revealed several small wetland areas well below the resolution
capabilities of the NWI mapping effort.
These small wetland areas contain a variety of plant species,
including rushes (Juncus effusus and J. tenuis) , beak rush ( Rhyncho —
spora c pitellata) , loosestrife ( Lysimachia terrestris) , goldenrod
(SofTd 9p sp.), meadow sweet ( piraea ] atifolia ) and cattail ( pha
latifolia) . Adjacent upland areas contain plant species such as
bayberry ( Myrica pennsylvanica) , rose ( Rosa multiiflora) , meadow
sweet, gray birch ( Betula opulifolia) , quaking aspen
tremu1oide ) and various grasses. Isolated wetlands have no apparent
drainage outlets, with the exception of the 0.15 acre area which
has a small drainage outlet in its northeast corner.
A dfãinage ditch bisects the site, draining towards the southwest.
Steep sided and 5—6 feet wide at the bottom, the ditch has some
areas of wetland vegetation. There is no “low—flow” channel within
the ditch. Plant species present include red maple, ( Acer rubrum) ,
silky dogwood ( Cornus amomum) , steeplebush ( Spiraea tomentosa) ,
meadow sweet, green ash ( Fraxinus pennsylvanica) , and sedge ( Carex
- lupallina) .
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About 1/4 acre of wetland exists near Rte. 1 adjacent to the drain-
age ditch where it swings north. The wetland is characterized by
reed grass ( Phragmites australis) , silky dogwood and cattail. Upland
immediately adjacent to the wetland is characterized by reed grass
and sweet fern ( Comptonia peregrina) . Mounds of old excavated
material are scattered through the wetland. In 1984 the North
Attleborough Conservation Commission issued a Determination of
Non—Applicability regarding the jurisdiction of the state Wetlands
Protection Act. This finding will be verified during the state
environmental impact review process. Site wetlands are isolated
wetlands and would normally qualify for a Corps of Engineers nation-
wide permit. However, since the Commonwealth of Massachusetts
has denied water quality certification for this nationwide permit,
an individual permit will be processed by the Corps.
The mixture of grassy and shrubby upland habitats that dominate
the site are attractive to such nesting birds as gray catbird,
cedar waxwing, blue—winged warbler, indigo bunting, american gold-
finch, field sparrow and song sparrow; rodents such as meadow
voles; and reptiles such as garter snakes and common toads. It
would not be used by many migrating and wintering birds. A group
called the Concerned Citizens of North Attleborough reported that
they have observed woodcock, quail, hawks, raccoon, fox and deer
on or near the site.
The site is located within the watershed of the Seven Mile River,
a major tributary to the Ten Mile River. Drainage from the site
passes beneath U.S. Route 1 via culverts at two locations. It
then flows into a channel which meanders through an area of wet-
lands and eventually into the Seven Mile River. Below the dis-
charge from the site the Seven Mile River flows south into Luther
Reservoir, a water supply reservoir serving the City of Attleboro.
The Seven Mile River watershed currently accounts for 60 to 75% of
the total Attleboro drinking water supply. The Seven Mile River
watershed upstream of Luther Reservoir is over 4,000 acres, of
which the project site is some 57 acres. The Attleboro Water
Department utilizes a groundwater withdrawal system (wells) which
receives recharge from a number of surface water storage reservoirs
along the Seven Mile River.
b. Aquatic Impacts
Less than 1 acre of wetland would be filled at the North Attleborough
site, compared with 32 acres at Sweedens Swamp. Moreover, the wet
areas on the North Attleborough site are scattered, the largest
totalling .26 acre. These wetlands provide minimal flood storage
and water quality renovation because most of them are isolated
from the surface water system. These wetlands also provide much
less value to wildlife than those at Sweedens Swamp because of
their small size.
A mall at the North Attleborough location would generate pollutants
similar in quantity and type to Pyramid’s proposal although the
impact to the aquatic ecosystem would not be as immediate because
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the mall would not be sited within an existing wetland complex as
Pyramid’s mall would be. The North Attleborough site has more
potential to impact drinking water resources because it lies within
the watershed of Attleboro’s water supply. However, the risk from
these potential impacts is within the level normally considered
acceptable by EPA provided proper protective measures are taken.
EPA has outlined a number of such measures in comments to the State
on the draft environmental impact report for the project. In
addition, the Massachusetts DEQE rejected the city of Attleboro’s
request to acquire the North Attleborough site by eminent domain,
finding that the action was not warranted in order to protect the
water supply.
Therefore, I find that Pyramid has not clearly demonstrated that
the filling of Sweedens Swamp would have a less adverse impact on
the aquatic environment than the development of the North Attleborough
site. My conclusion agrees with that of the Corps which found that,
in the absence of mitigation, this alternative to filling Sweedens
Swamp would have less adverse impact to the aquatic ecosystem. One
further inquiry must be made —— whether the North Attleborough
alternative poses other significant adverse environmental conse-
quences which outweigh the adverse aquatic impacts at Sweedens
Swamp.
c. Other Impacts
Section 230.10(a) does not define the term “other significant
adverse environmental consequences.” The preamble explains that
this provision “gives the permitting authority an opportunity to
take into account evidence of damage to other ecosystems in decid-
ing whether there is a ‘better’ alternative.” 45 Fed. Reg. 85340.
Against the backdrop of the overall policy that the filling of
wetlands is considered among the most severe environmental impacts
covered by the guidelines, this provision offers a safeguard that,
in those unusual cases where even more severe environmental conse-
quences would result if an otherwise practicable alternative is
chosen, a permit for the wetland filling need not be denied. .An
example might be where an upland alternative involved impacts to an
endangered species or affected an area of outstanding scenic or
recreational value.
At the North AttlebOrough site, the major non—aquatic environmental
impact that would result is the destruction of upland wildlife habi-
tat. Approximately 34 acres of wildlife habitat would be lost at
the North AttlebOrOUgh site due to the mall itself (another l0 acres
are already developed). Pyramid’s mall would destroy about 46
acres of habitat (wetland and upland combined) (another 3 acres are
already developed). While the mall at Sweedens Swamp would be
constructed on both wetland and upland habitat, the losses at
North AttlebOrOugh would be primarily of upland shrub habitat.
The predominant upland shrub cover type at the North Attleborough
site is indicative of past disturbance of the area Thd NE Corps
in its permit decision noted that “about 25 acres of this site was
mined for gravel, and has been left in a highly disturbed state.
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The rest of the site consists largely of upland forest and some
old field habitat (20—25 acres total). This site provides open
space and similar opportunities for passive recreation, but has
much less value for wildlife and other wetland values.”
Wildlife habitat values associated with the North Attleborough site
were also estimated using the same procedure discussed in Appendix B.
The evaluation team consisted of representatives of the Corps, FWS,
and EPA. EPA had sought to have Pyramid’s consultants participate in
the evaluation since they had been involved with the assessments at
the Sweedens Swamp site and Tiffany Street mitigation area. New
England Development, however, denied EPA’s request to grant site
access to Pyramid’s consultants. Fifty—seven acres were included
in the wildlife evaluation. Seven cover types ranging from 0.8
acres to 26 acres were identified and measured. The results are
presehted in Appendix B. Wetlands, however, accounted for only a
very small fraction of the total score. If the mall is built
according to current plans, there would be a loss of wildlife
value from the clearing and development of 34 acres of the parcel.
Wetland values would increase slightly if the stormwater management
features are considered in the analysis.
Although the existing habitat assessment data do not allow precise
calculation of numerical losses at either site from just construc-
tion of a mall itself,*/ the losses at North Attleborough arise
from destruction of upland habitat whereas the losses at Sweedens
Swamp stem mainly from destruction of the wetland areas. The
regulations clearly envision protection.of wetland areas over
upland areas except in an unusual circumstance. The initial impact
to wildlife from construction at the sites (including mitigation)
is clearly greater at Sweedens Swamp because roughly 72 acres of
the site would be either dredged or filled compared to about 40
acres at the North Attleborough site. Moreover, in the absence of
a shopping mall at either location, it is reasonable to assume
that the North Attleborough site would be developed whereas Sweedens
Swamp would remain in its natural state. Current Massachusetts
and federal environmental regulations prohibit or discourage any
major development of the wetlands at the Sweedens Swamp site.**/
Although regulatory requirements exist for the North Attleborough
site as well, (e.g., zoning requirements, building permits, etc.),
they appear to permit development of the area.
*/ Of course, if mitigation is introduced into the equation we
— presumably would have to look at the various possibilities
that exist at each site. New England Development, for example,
controls substantial acreage near the mall site upon which it
could possibly effect habitat “improvements” if it so chose.
Current Massachusetts regulations prohibit the filling of
— greater than 5,000 square feet of bordering vegetated wetlands.
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After careful consideration of the information in the record, I
find that the development of the North Attleborough site would not
result in environmental impacts significant enough to outweigh the
impacts of filling Sweedens Swamp. Development of the North Attle—
borough site clearly involves less impact to the aquatic ecosystem.
Moreover, the total impacts to wildlife habitat at the Sweedens Swamp
site would be greater because more acreage would be permanently
developed. Again, I reach this conclusion based on my understanding
of the guidelines, which is that alternatives to a proposed discharge
must be considered in the absence of any mitigation proposed by
the applicant. Mitigation is appropriate for consideration only
if the loss of wetlands is unavoidable (i.e., there are no altern-
atives to the filling).
2. Seekonk Site
As discussed in Section V.B.3., building a regional mall on the
Seekonk site appears to be another practicable alternative to
filling Sweedens Swamp. Further, the adverse impacts to the aquatic
environment would be much less than at Sweedens Swamp, and there
would be no other significant adverse environmental consequences;
therefore this site is a less environmentally damaging alternative
to filling Sweedens Swamp.
The Seekonk site was recently mapped by USFWS using aerial photo-
graphy. This initial study indicates that of the 79 acre site,
roughly 22 acres are wetland and 57 acres are upland. This corres-
ponds with the information provided by Marathon in its State
Environmental Notification Form filed January 21, 1986. Most of
the wetlands are on the floodplain of the Runnins River, which
borders the area to the southwest. Additionally, isolated palustrine
emergent marsh and scrub—shrub wetlands, and open water exist on
the site. The majority of uplands present are paved, as much of
the area is the site of the Seekonk Twin Drive—In, currently aban-
doned but previously operated by the Milford Drive—In, Inc.
Due to the extensive size of the Seekonk site, and the large amount
of upland present, a regional shopping mall could be constructed
without filling any wetlands. Pollutants in the stormwater runoff
from the mall are likely to be similar in kind and amount to the
other mall proposals. Current plans are to construct a tertiary
treatment system before discharging sanitary wastewater to the
RunnThS River. Thus, it does not appear that there would be sig-
nificant effects on the surface water fran the proposal. Overall,
it appears that aquatic impacts from placing a mall at the Seekonk
site would be substantially less than the aquatic impacts from
filling Sweedens Swamp.
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Based on the information currently available, potential impacts to
upland habitat do not appear to be significant either. Much of the
project site is already developed. The upland habitat which remains
is substantially less valuable than the habitat at Sweedens Swamp,
due to its small size, past disturbance, the lack of structural
diversity and the absence of any noise or visual buffer from Route 6.
3. Washington Plaza Site
This site consists of approximately 27 acres, much of which is
already developed. There is an additional 20 — 40 acres of un-
developed land to the west consisting of early successional upland
woods. There appear to be no wetlands or watercourses on the site,
so expansion of the site to build a regional mall would not entail
any adverse impacts to the aquatic environment. While the record
does not contain complete information for this site, there is
nothing to suggest that development of a mall would cause any other
significant adverse environmental impacts. This site therefore
also appears to be a less environmentally damaging alternative to
filling Sweedens Swamp.
D. Conclusion
In determining whether the adverse effects of Pyramid’s proposed
discharge are unacceptable, I must determine whether the discharge
would comply with the 404(b) (1) guidelines. I have reached a con-
clusion different from the Corps, in part because I have declined
to follow the Corps’ departure from the normal interpretation of
the alternatives test.
Pyramid had the burden of overcoming the presumption that there are
less environmentally damaging, practicable alternatives to the
proposed discharge. Based on the record I find that Pyramid has
not met its burden. Therefore, I conclude that the wetland loss at
Sweedens Swamp is avoidable, and that the proposed discharge would
not comply with the guidelines.
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VI. MITIGATION
Even though, as previously explained, there are practicable alter-
natives, Pyramid nevertheless argues that it should be allowed to
fill Sweedens Swamp in exchange for a package of mitigation measures
which it claims would more than offset the adverse impacts of its
proposal. While I view the answer to the alternatives question to
be dispositive, a detailed examination of the mitigation issue will
be undertaken to lay it to rest as well.
Mitigation may mean a broad array of actions, but in the context of
this decision, it refers to attempting to compensate for wetland
losses by creating or enhancing other wetlands.*/ Until recently,
there has been little debate about the proper role of mitigation in
the 404 program: mitigation applies to unavoidable environmental
impacts. While there has been considerable discussion about the
technical questions wetland creation poses, there has been wide
agreement that mitigation cannot substitute for the alternatives
analysis required by the 404(b)(l) guidelines. The Clean Water Act
and the guidelines direct us to protect natural wetlands by
avoiding impacts where possible. Sound scientific, legal and
policy reasons support continuing this approach to wetlands protec-
tion.
As described more fully below, Pyramid proposes various actions to
attempt to mitigate the adverse environmental impacts of building a
mall on Sweedens Swamp. Throughout the 404 permit process, EPA
maintained that the project did not comply with the Section 404(b)(l)
guidelines because the project purpose could be satisfied without
filling wetlands. As discussed in Section V, alternatives exist to
Pyramid’s proposal which eliminate or greatly reduce the filling of
wetlands. To the extent that wetland impacts are avoidable it is
unnecessary to grapple with the difficult question of whether the
proposed mitigation would succeed in creating functional wetlands,
let alone whether the uses and values provided by the artificial
wetlands would be equivalent to those provided by the natural, ones
lost to the project.
The New England Division of the Corps, after much deliberation,
reaffirmed this view in the context of Pyramid’s 404 permit applica-
tion. As early as February 1985, the NE Corps informed Pyramid
that a permit for its proposal would be denied because there were
less environmentally damaging, practicable alternatives available
to satisfy the project purpose.
/ I use the term “mitigation” instead of the term “ccmpensation”
in order to be consistent with our previous correspondence on
this case. The most widely used definition of mitigation is
that put forth by CEO (40 C.F.R. §1508.20(a)—Ce)). The CEO
definition includes avoidance of impacts as well a habitat
compensation.
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In May, 1985 the New England Corps Division Engineer succinctly
stated his recommendation*/ to his Headquarters office:
I recommend that the permit be denied. I believe that
the project does not comply with the 404(b)(l) guide-
lines because there is a practicable alternative to
the proposed discharge that has less adverse impact to
the aquatic ecosystem. Further the alternative to the
entire proposal (on and offsite) has less adverse
impact because it does not depend on the success of
creating wetlands.
Major General Wall, then Deputy Director for Civil Works, disagreed,
reasoning that if an applicant promises full compensation so that
there would be no net loss of wetlands, there could be no “less
environmentally damaging alternative” within the meaning of the
404(b)(l) guidelines. Under this approach an applicant could
overcome the regulatory presumption that less damaging alternatives
exist merely by agreeing to compensate for the amount of wetlands
destroyed by a non—water dependent project. In contrast to the
NE Corps position, this respresents a novel interpretation of the
guidelines and a departure from the way the alternatives analysis
has been handled by EPA and the Corps in the past. In essence it
removes any distinction between water—dependent and nonwater—
dependent projects, thereby nullifying the presumption against
siting nonwater—dependent projects in wetlands. It also supplants
the presumption against filling wetlands (and that alternatives
exist) with an assumption that wetland creation projects will work
as advertised to fully compensate for adverse impacts. One
consequence of this new approach is that, it effectively shifts the
burden of proof from the applicant -— who formerly had to demon-
strate that alternatives did not exist —— to EPA and the Corps,
who would have to prove that a mitigation plan could not work. As
a practical matter, it is impossible to predict whether a particular
mitigation plan will or will not work exactly as proposed. More-
over, there are currently no standards in place to judge whether
the values created by artificial or enhanced wetlands equal those
sacrificed to nonwater—dependent projects. -
I disagree with General Wall’s interpretation of the 404(b)(l)
guidelines. In my view it contravenes the language and intent of
the regulations and the Clean Water Act itself; it is scientifi-
cally unfounded; and it is unsound environmental policy. It
poses environmental problems not faced under our current interpre-
tation of the guidelines while reducing benefits enjoyed under the
usual approach. Moreover, I question whether policy changes which
affect the basic structure of the regulatory program should be
made on an ad hoc basis. The following analysis treats each of
these issues in turn.
/ In New England, the past decisions whether or not to issue a
— 404 permit rested with the Division Engineer. In thtis case,
the New England Division Engineer was directed to submit his
decision to the Corps Headquarters office in Washington, D.C.,
for review before final action could be taken.
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A. Scientific Issues
To permit mitigation of avoidable impacts by the creation of arti-
ficial wetlands is not a scientifically valid approach because it
exchanges a proven form of resource protection for an experimental
one.*/ Avoidance of impacts through selection of an environmentally
preferable alternate site provides 100% effective wetlands protec-
tion; mitigation, even if well designed, cannot provide this level
of certainty. The record shows tl iat the practice of mitigating
unavoidable impacts through wetland expansion or creation is in-
creasing in New England and throughout the country, but the science
involved remains unproven. Examples where mitigation has apparently
succeeded or failed can be found, although it is difficult to
compare one case to another. In an effort to better understand the
effectiveness of wetland creation projects in New England, EPA
recently contracted with Metcalf and Eddy, Inc. to evaluate the
results of mitigation in five cases, each a condition of an issued
§404 permit in New England. Their report found that mitigation was
ineffective in two cases and marginally successful in two other
instances (the mitigation has not yet been done for the fifth case).
The record shows that results of wetland creation in New England
appear to be, at best, mixed.
Pyramid has supplied a number of examples of wetland creation to
lend support to its position that wetlands can and have been suc-
cessfully created. A number of the examples cited show that cer-
tain wetland types have been successfully created although none of
them involves the replication of all of the functions of a Sweedens
Swamp. Other examples cited are in fact not wetland “creation” at
all but alterations of existing wetlands, such as the Great Meadows
National Wildlife Refuge, the Harland Street marsh in Milton,
Massachusetts and many Ducks Unlimited projects in Canada. For
example, closer examination of the facts behind the Harland Street
marsh reveals that it was a wetland prior to, not as a result of,
an SCS flood control project. Moreover, the abstract of one case
in New York cited by Pyramid indicates there was a 75% failure rate
for plant species introduced into artificial wetlands. /
Whether or not Pyramid’s proposal (discussed below) would encounter
the same difficulties as past unsuccessful projects, or would
experience its own difficulties, cannot be known at this time.
Indeed that is a major reason why the less speculative alternatives
analysis is a preferable means, from a policy standpoint, of
approaching proposals to fill wetlands. The point is that wetland
*1 Remarkably, at the time the Corps Headquarters decided Pyramid’s
— mitigation proposal was “100% effective”, Pyramid had not even
selected its final site, much less developed a specific plan.
/ Emerson,-Fredrick. 1961. Experimental Establishment of Food
— and Cover Plants in Marshes Created for Wildlife in New York
State. New York Fish and Game Journal 8:2, p. 130—144.
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creation projects are rarely as simple and routine as Pyramid’s
consultants imply; many uncontrolled variables may influence
ultimate success or failure. Salt marshes and freshwater emergent
marshes appear to be the systems that are most frequently and
easily established. Most often, however, past mitigation projects
in New England have involved conversion of one wetland type to
another or expansion of an existing wetland. Few are major de
novo wetland creation projects and none as large as what Pyramid
proposes.
Even where wetlands have been successfully created, relatively
little work has been done to assess the long—term fate of these
artificial systems. The record shows that some wetland creation
projects have not proved as successful as had been hoped. Margaret
Race of Stanford University, for instance, evaluated wetland mitigation
projects in the San Francisco Bay area and concluded that, “Many
of the projects never reached the level of success purported and
others have been plagued by serious problems....EB]ecause the
technology is still largely experimental, there is no guarantee
that man—made wetlands will persist as permanent substitutes for
sacrificed natural habitats. t u*/
Other studies in California reached similar conclusions. Gregory
Baker / in an analysis of the role of mitigation in the 404 program
found that, “In practice, wetland mitigation has not lived up to
expectations” and that “this study refute Es] the common notion that
almost any project can be made acceptable by simply offsetting the
adverse impacts with a wetland mitigation project.” Baker also
reached conclusions about the proper relationship between mitigation
and the analysis of project alternatives:
Public and private interests are likely to continue to
place strong development pressures on wetland resources.
Since wetland systems can be expeditiously eliminated but
cannot be recreated overnight, preservation should be pre-
ferable to exchanging existing wetlands for new ones. In
spite of this, mitigation is often used as a means of jus-
tifying a project rather than as a means for offsetting
truly unavoidable impacts. Since wetland recreation projects
do not consistently meet expectations, dredge and fill
activities should be evaluated at face value, unprejudiced
by proposals to compensate for losses.
/ Race, Margaret S. 1985. Critique of Present Wetlands Mitiga—
— tion Policies in the United States Based on Analysis of Past
Restoration Projects in San Francisco Bay. Environmental
Management 9:1, pp. 71-82.
/ Baker, Gregory F. 1984. An Analysis of Wetland Losses and
— Compensation under the Clean Water Act Section 404 -Program:
Managing Natural Resources through Mitigation. Master of
Science Thesis, University of San Francisco.
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The results of these and other studies do not mean that some kinds
of wetlands cannot be created, but they do illustrate the uncertainty
surrounding the short and long term viability of wetland creation,
and perhaps more importantly the difficulty of determining the
value to the public of artificial vs. natural wetlands. We cannot
be positive how long it takes to establish artificial wetlands,
much less how to judge a level of success sufficient to justify
destruction of natural wetlands. Daniel Willard of Indiana Univer—
sity*/ reporting on wetland mitigation work in Chicago, cautions
that “...our lack of knowledge of wetland ecosystems dynamics
limits our confidence about the exact future distribution of these
[ created] habitats on the site.... Biological systems do not
behave like engineered systems (happily). Therefore, the outcome
will surely vary from prediction.”
Shisler and Charette / at Rutgers compared artificially created
wetlands to natural systems to determine whether the manmade areas
actua .ly compensated for lost values. “Our results”, they wrote,
“indicate that the overall answer to the question ‘Are artificial
marshes equivalent to natural marshes?’ is NO. Many characteristics
of the artificial marshes were lower than the natural marshes. In
view of the concept of mitigation, artificial marshes are not
equivalent to natural marshes and therefore are not a biological (sic]
equivalent replacement of a natural marsh.”
Particularly troubling to me is that General Wall’s approach not
only allows mitigation to justify avoidable habitat losses, but
would permit the artificial wetlands to be of a different type.
Management of wetland types for a single purpose (e.g., duck hunting,
sewage treatment) or to restore degraded. systems may be appropriate
in limited cases where that is the express purpose of the project.
But using such techniques to justify the destruction of natural
wetlands is an entirely different matter. Permitting out—of—kind
habitat replacement as a general practice has little scientific
support since it merely reflects the decision—maker’s bias for one
kind of habitat over another.
The entire concept of trading artificial for existing wetlands
rests on several challengeable assumptions (e.g., that a manmade
wetland functions as well as a natural one; or that we know which
wetland types, and which wetland values, are most “important”).
Even where successful, mitigation projects usually replace selected
wetland attributes (typically flood storage or wildlife habitat),
not the full spectrum of values most wetlands provide. In addition,
the creation of artificial wetlands can exact other environmental
costs. Obviously, new habitat cannot be created from nothing;
*/ Willard, Daniel E. 1985. Progress Report on Restoration and
— Development of Wetlands on Two South Chicago Properties
(Paper presented at May 1985 meeting of Society of State
Wetland Program Managers, portland, Maine).
/ Shisler, Joseph, K. and David J. Charette. Artificial vs.
— Natural Tidal Salt Marshes: Are Artificial Marshes Equiva-
lent for Mitigation? The Coastal Society, Proceeding,
9th Annual Conference. (in press)
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existing areas with existing values must be modified in the hope
of improving selected environmental values. The consequence of
creating an artificial wetland will often be the loss of upland
habitat, as well as the loss of the existing wetland.
I am also concerned that we not rely too heavily on quantitative
assessment methodologies in addressing these questions. Although
useful tools for general comparisons, they do not often measure
site—specific environmental values. That Sweedens Swamp scores 332
habitat units (see Appendix B) sounds more precise than it really
is. It is reasonable to use assessment methodologies——the best
tools currently available——in developing mitigation plans for
unavoidable wetland losses; it is much more questionable to allow
wetland destruction that could otherwise be avoided based on
such numerical approximations. Some of the inherent limitations
of th model used in this case are discussed in Appendix B. In
addition, Willard notes the tautological nature of using assessment
methodologies to predict habitat improvements from mitigation
projects. “To some extent the predictions of future [ habitat]
units depend on a logically circular process. We assume that
existing physical characteristics of the si’tes cause existing
habitat to develop. Then we assume that by creating similar physi-
cal characteristics we get habitat of similar values. Finally, we
design the [ mitigation] site to include only physical characteris-
tics which give us high habitat values. Therefore, our design
always predicts an improvement in habitat.” These models, then,
can usually be employed to show a theoretical gain in values and,
in the context of General Wall’s interpretation of the guidelines,
automatically defeat the alternatives test.
Based on my review of the record, I conclude that wetland creation
projects do not always replace the specific environmental values
lost when other wetlands are filled. I also find that while some
wetland creation projects have worked as expected, others have not.
Little evidence exists to show whether or not successfully created
wetlands persist for as long as, or provide the full spectrum of
values attributable to, natural wetlands. I believe wetland crea-
tion has progressed to a point where it should play an important
but limited role in the 404 program: compensation for unavoidable
impacts. To permit compensation of an avoidable environmental
injury, however, is a mistake in my view for it presupposes too
much understanding of the natural wetlands we destroy and too much
confidence in our ability to recreate them.
B. Legal and Policy Issues
A fundamental precept of the 404 program, and the Clean Water Act
itself, is that the discharge of pollutants (including dredged and
fill material) into the nation’s waters is to beavoided whenever
possible and ultimately eliminated entirely. The section 404(b)(l)
guidelines implement this basic policy quite logically, y pre-
suming that alternatives to the filling of wetlands are available
for non—water dependent projects and by allowing permits to be
issued only if there is no less environmentally damaging practicable
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alternative (40 C.F.R. §230.10). The Corps, on the other hand,
wishes to issue a permit for Pyramid’s project, based on a finding
that the adverse environmental impacts associated with the proposed
discharge, when considered along with proposed “mitigation,” are
equivalent to, or less than, the adverse impacts that would result
from the development of any alternate sites. I believe that such
an approach would violate the legal requirements of the guidelines.
The language of Section 230.10 is clear and its intent unmistakable.
No discharge shall be permitted “if there is a practicable alterna-
tive to the discharge which would have less adverse impact on the
aquatic ecosystem...” (emphasis added). This cannot fairly be read to
mean that a discharge (especially one associated with a non—water
dependent activity), for which there is a demonstrated practicable
alteri ’ ative location could nevertheless be permitted because it
would be accompanied by a mitigation plan promising the creation of
more wetlands than those destroyed. The obvious point of this pro-
vision is to discourage discharges, not to encourage them by allowing
natural wetlands to be traded off for artificial ones. Even the
best conceivable mitigation plan cannot trans form an unnecessary
discharge into a necessary one.*/
The preamble to the guidelines reinforces this message. For instance,
with respect to non—water dependent activities, the preamble notes
that it “is reasonable to assume there will generally be a practic-
able site available upland or in a less vulnerable part of the
aquatic ecosystem.” Later, and more forcefully, the preamble
states “...the guidelines always prohibi t discharges where there is
a practicable less damaging alternative.... Thus, if destruction of
an area of waters of the United States may reasonably be avoided,
it should be avoided.” The guidelines themselves begin by stating
their purpose, consistent with the purpose of the Clean Water Act,
to restore and maintain the chemical, physical and biological integ-
rity of waters of the United States through the control of discharges
of dredged or fill material. “From a national perspective, the
degradation or destruction of special aquatic sites, such as filling
operations in wetlands, is considered to be among the most severe
environmental impacts covered by these guidelines. The guiding
principle should be that degradation or destruction of special sites
may represent an irreversible loss of valuable aquatic resources.”
That is the case here, valuable wildlife habitat would be lost
forever with the filling of Sweedens Swamp.
*/ The New England Corps Division Engineer held the same view.
— In the Statement of Findings which accompanied his recommended
decision, he concluded that the 404 guidelines simply mean
“if you don’t need to fill a wetland, don’t” and that “the
applicant’s attempt to create new and different wetland types
as mitigation does not change the reality that an existing,
viable wetland will be destroyed.”
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The 404 guidelines therefore envision an effective, simple and
certain method of protecting wetlands: Avoid impacts to the extent
possible through selection of the least environmentally damaging,
practicable alternative, and then mitigate any remaining unavoidable
impacts. The New England Division of the Corps and Region I EPA
have enjoyed much success with this approach. Recent examples
include two other shopping mall projects proposed in Westerly,
Rhode Island and Fraxningham, Massachusetts. In both cases, the
developers initially proposed to fill wetlands and attempt to
mitigate the impact by creating man—made wetlands. As a result of
our requiring the traditional alternatives analysis, both projects
were redesigned during the 404 permit process to eliminate or
substantially reduce the amount of wetland loss. There are many
other examples in New England where the “avoid first, mitigate
later” ..interpretation of the guidelines has preserved wetlands.
Undoubtedly, in many of these cases, permit applicants would have
opted to create artificial wetlands in lieu of relocating or re-
designing their projects, if they had had that choice.*/
General Wall’s approach, by contrast, allows projects to proceed
on the promise of full mitigation regardless of whether or not
alternatives exist which would result in less wetland filling.
This approach so severely skews the alternatives analysis that it
completely undercuts the water dependency test. On paper, mitiga-
tion could reduce the impacts of virtually any wetland fill project
to “zero”. With enough theoretical mitigation, any project will
appear to be environmentally preferable to upland alternatives.
This interpretation amounts to a virtually automatic finding that
there are no less environmentally damagin alternatives; therefore
alternatives could be completely ignored.__/
To the extent that alternatives are evaluated, General Wall’s approach
is still flawed because it tries to ccmpare apples to oranges, i.e.,
a wetland fill project plus mitigation (such as the creation of
artificial wetlands) against an upland alternative without mitigation.
*1 Another possibility is that applicants whose permits have been
— denied in the past would request reconsideration in light of the
option to preempt the alternatives requirements with mitigation.
/ General Wall recognized these difficulties by admitting that
— his new interpretation of the guidelines is somewhat problematic
because “...it could serve to weaken or subvert key provisions
of the current 404(b) (1) guidelines.” Moreover, he recognized
that, “EPA did not write the 404(b)(l) guidelines to facilitate
granting of 404 permits which allow the destruction of special
aquatic sites, even if the applicant is willing to offer corn—
pensatory mitigation by offering to dedicate existing wetlands
to the public.” Nevertheless, the Corps proceeded t9 reinter-
pret the guidelines so that applicants have a choiceof either
avoiding wetland losses or compensating for their loss by
creating artificial wetlands.
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upland alternatives generally do not need mitigating features,
because they do not (for the most part) involve the filling of
wetlands. If enough mitigation is included in the comparison, a
wetland fill project will easily appear to be environmentally
preferable to an upland alternative. Such comparisons will drive
development projects into, rather than away from, wetlands —— a
result which turns the water dependency test upside down. This
would also embroil EPA in the highly subjective and potentially
fruitless exercise of judging whether artificial wetlands are
“better” than natural ones —— a role that does not appear to be
what Congress had in mind for EPA under its 404(c) authority.
Therefore, the only approach which preserves the intent of the
guidelines is to compare the impacts of a proposed discharge wit-
hout mitigation to the impacts that would occur at an alternate
site. :i
As we have seen above, the Corps’ approach poses scientific con-
cerns and is not contemplated by the Act or the regulations.
Beyond these problems, it creates practical difficulties. Estab-
lishing a standard where mitigation of impacts can be substituted
for avoidance transforms a straightforward review procedure into a
complex and confusing analysis of uncertain result, thereby frust-
rating the express goals of the regulatory reform effort. It is
unclear whether applicants would continue to search for the least
damaging alternative or concentrate instead on developing artificial
wetland proposals. We have no criteria by which to compare the
theoretical benefits of mitigation against selection of an alterna-
tive which would involve less direct wetland impacts. We also
have no standards for the whole cornucopia of issues that would
arise, e.g., when, if ever, out—of—kind habitat replacement would
be allowed; the proper ratio of replacement; how “success” would
be determined; etc.
If, as Pyramid contends, the success of mitigation depends on an
applicant’s willingness to provide the necessary money and exper-
tise, then the agencies would be forced to delve into the finan-
cial capability and technical competence of the applicants and
their consultants before making permit decisions. In the future,
it may be difficult to deny a permit where mitigation is offered
even if we have serious doubts about its effectiveness. To deny
one permit because of such doubts when (at least superficially)
similar proposals have already been allowed may create a percep-
tion of arbitrary and capricious action. Moreover, instead of
resolving environmental problems during the review stage, the
agencies would have to monitor the created wetland through time to
. Li There is no logical reason to distinguish between onsite and
offsite mitigation proposals in relation to the alternatives
analysis. Although they are often different types Of mitiga-
tion their basic purpose —— to lessen or compensate for environ—
mental damage —— is the same.
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ensure that it was working and that the permanent impacts (which
could have been avoided) were still being hlmitigatedss.*/
It is doubtful the agencies would have the resources to monitor
these “mitigation” sites properly if permits authorizing them were
issued on a regular basis. Assuming that proper monitoring would
occur, it is not clear how we could enforce long term compliance,
since 404 permits usually expire after five years. More impor-
tantly, once the existing wetland has been filled, there may be
no adequate remedy if the artificial wetlands fail.
Because of these difficulties I continue to believe that a proper
application of the 404(b)(l) guidelines requires that mitigation
apply only to unavoidable impacts. This means that the alterna-
tives analysis should be completed as a first step before pro-
ceeding .to mitigation. Of course, where the applicants are
confident that their projects will meet the alternatives require-
ments of the guidelines, there is nothing to prevent them from
working on mitigation proposals during the permit review process.
Region I fully supports the development of mitigation proposals
to compensate for truly unavoidable impacts. In the case at hand,
had Pyramid successfully demonstrated that there were no practicable,
less environmentally damaging alternatives, it would be appropriate
to consider mitigation. Of course, the uncertainties and difficulties
associated with wetland creation proposals do not disappear merely
because the impacts are unavoidable. However, the acceptability of
these inherent risks does change. Whil,e the prospects for success
or failure of the mitigation would not change, the mitigation might
be worth attempting since it may lessen or compensate for adverse
impacts which cannot be otherwise avoided. /
/ The Metcalf & Eddy report confirms that a number of unantici-
pated difficulties can arise in these wetland creation projects,
requiring a great deal of vigilence on the part of the regulatory
agencies to identify and rectify problems. For example, in one
case, lack of ownership of the proposed mitigation parcel de-
layed construction of the artificial wetland for at least a
year after the existing wetland had been filled. In another
instance, fill for the project was placed before the mitigation
was complete, contrary to the Corps agreement with the applicant.
/ This does not necessarily mean that every mitigation plan will
— be acceptable even if the impacts are unavoidable. We may still
object to a project if the mitigation proposal appears. unlikely
to succeed, is not enforceable or is scientifically questionable
(e.g., simply converts one productive habitat into another).
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C. Pyramid’s Proposed Mitigation
Pyramid proposes both onsite and of fsite mitigation measures in an
attempt to compensate for the loss of wetlands at Sweedens Swamp.
The onsite mitigation would involve the creation of 9 acres of wet-
lands from existing upland, and the conversion of 13 acres of
wooded swamp to other wetland types. A gravel pit south of Tiffany
Street in AttleborO is the proposed offsite mitigation area where
Pyramid would attempt to create 36 acres of artificial wetlands
from 30 acres of upland habitat and 6 acres of open water. If
successful, the artificial wetlands would in both cases be primarily
emergent marsh with lesser amounts of open water and shrub swamp.
The onsite mitigation proposal was part of the initial 404 appli-
cation and an instrumental feature in Pyramid’s success in secur-
ing state approval. Pyramid asserts that the refurbished onsite
wetlands will function better than the existing swamp to renovate
water quality and provide wildlife habitat. These wetlands in
conjunction with the mall “pad” would provide stormwater detention
and modulate downstream flow.
Subsequent to its original proposal, Pyramid proposed of fsite
mitigation after it became apparent that the onsite measures would
not fully replace lost wetland values at Sweedens Swamp. After an
earlier proposal was abandoned, Pyramid eventually settled on its
current proposal at Tiffany Street, a 70 acre tract of land roughly
two miles from the mall site. The existing habitat at this site
consists of abandoned field (29 acres), open water (6 acres), and
some small pockets of hardwood forest (1. acre). To create 36
acres of wetland, Pyramid proposes to remove 348,000 cubic yards
of sand and gravel from the site and blast 55,000 yards of bedrock.
Depth of bedrock removal varies from 1 to 12 feet. Roughly 30,000
cubic yards of peat would be trucked onto the site.*/ After re—
grading the site and preparing the organic material, emergent
and shrub wetland vegetation would be planted on the site.
The same habitat evaluation procedure used at Sweedens Swamp (see
Appendix B) / was employed to estimate baseline and future values
* / EPA had requested Pyramid to identify its source of peat, but
— Pyramid refused to do so. This was cause for concern since
we do not know whether there would be adverse impacts associated
with obtaining peat for this mitigation project. The Region
has recently learned from correspondence between Pyramid and
the NE Corps that Pyramid is considering an area in North
Attleborough known as Whiting Pond as the primary source of
peat. According to the DEQE, Whiting Pond lies in the historic
channel of the Ten Mile River and has received high levels of
various heavy metals including copper and nickel from upstream
plating operations. If present in the peat, the effect of
these pollutants upon Pyramid’s wetland creation plan would
have to be evaluated.
/ Appendix B also discusses some of the limitations of this
— procedure.
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at the offsite mitigation area. If fully successful, the mitiga-
tion would increase the measured value of the site by a modest
amount. Even under this optimistic projection, however, the net
gain in habitat units at the mitigation site would be less than
the net loss of habitat units at the mall site. Pyramid contends
that much of the proposed mitigation area should be assigned a
baseline value of zero because the site would be developed in
the future anyway.*/ The Corps has not to date agreed to this
idea.
During the 404(c) process, Pyramid revised its mitigation proposal
further, by offering to conduct the offsite mitigation prior to
excavating or placing any fill in Sweedens Swamp. / Pyramid’s
earlier proposal had required use of the substrate from Sweedens
Swamp for construction of the new wetland.***/ Pyramid stated that
it would “walk away from the mall project” should the mitigation
not succeed but has not definitively indicated how long it would
be willing to wait before determining the success of the offsite
mitigation. Pyramid also proposed that the success or failure of
the mitigation be judged by a “blue ribbon panel” selected by EPA
and Pyramid and chaired by an environmental celebrity.
I gave serious consideration to this offer. “Up front” mitigation
has certain advantages, since it reduces the short—term uncertainties
and risks associated with wetland creation. Moreover, it would
provide an opportunity to test the success or failure of a large
mitigation project and thus be of some educational value. I am
nevertheless compelled to reject Pyramid’s proposal for the strong
legal and policy reasons discussed above. To barter away an existing
wetland for a created one of uncertain success and duration when
there are practicable alternatives is an environmental brinkmanship
simply not allowed under the existing regulations. Moreover,
although the short term risks are reduced under the “up—front”
approach, no one can knowledgeably predict the status of the miti-
gation area five, ten, or twenty years from now, long after the
*1 presumably, this reasoning would dictate that the habitat
— value of the upland portions of the alternate North Attle—
borough mall site be considered zero as well, particularly
since the North AttlebOrough site is more certain to be de-
veloped.
/ In a February 14, 1986 letter to the NE Corps, Pyramid stated
that if Region I refuses the offer and continues with the 404(c)
proceeding, Pyramid expects “to operate under the conditions
required by General Wall’s decision (which clearly does not
require such a drastic construction delay) as such conditions
may be supplemented by EPA at any future time during the
pending 404(c) proceedings.”
*** / Indeed at one point Pyramid’s consultants indicated that
the mitigation was infeasible without the soil from Sweedens
Swamp.
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permit has issued and the mall is built. Over the long term, the
chance for unusual stress —— a prolonged drought for instance ——
increases markedly. The manmade wetland may not withstand such
events as well as Sweedens Swamp, which has a track record of
several centuries. In considering Pyramid’s offer, I felt it
important to be mindful of the far reaching implications for the
overall 404 program associated with a decision on this specific
proposal. For the legal, policy, and practical reasons discussed
above, I still do not believe that issuance of a permit conditioned
upon the creation of offsite wetlands is a proper application of
the guidelines when a practicable alternative to the proposed
discharge exists.
Furthermore, I remain troubled by the fact that the artificial
wetlands, even if fully successful, would not be of the same type
as thpse that would be destroyed. No doubt Pyramid proposes to
replace a wooded swamp with an emergent marsh in part because of
the difficulty of attempting to create an artificial wooded
wetland. Certainly marshes provide some benefits that wooded
swamps do not and vice versa . The mere fact that emergent marsh
systems are less common in the northeast*/ does not seem suff j
cient justification to me for allowing mitigation when wetlands
need not be destroyed in the first place. Nothing in the Clean
Water Act or 404 guidelines suggests that EPA should pursue a
“museum approach” to wetland protection, preserving only rare
wetland types. The FWS classifies Sweedens Swamp as Resource Cate-
gory 2 under its mitigation policy. This means that if the loss
of habitat at Sweedens Swamp were unavoidable (which it is not),
FWS would seek in—kind compensation from the applicant.
In addition, any gains Pyramid’s mitigation plan would provide
(e.g., if successful, there would be an increase in wetland acreage),
result from the conversion of existing upland and wetland habitat
types. These habitats have wildlife value in their present state
which would be lost in the wetland creation attempt. At best,
there would be an increase in generalized wetland habitat values;
the total (wetland and upland combined) effect on wildlife would
remain negative. While I do not find fault with Pyramid’s miti-
gation plan on account of this, for such “hidden costs” are typical
of most attempts to compensate for adverse impacts, it again under-
scores the prudence of accepting compensation for unavoidable
impacts only.
General Wall’s interpretation of the guidelines concluded that
mitigation was appropriate in “a proper case”. I agree. The
“proper case”, however, is when the impacts are unavoidable. To
the extent that this subject requires further debate, it should be
done publicly where all points of view can be accommodated. There
*1 In its Statement of Findings the Corps relies on a Ul 98 2 National
— wetland Inventory Report” to document the relative scarcity of
emergent marshes in the northeast. EPA has been unable to
locate any such report.
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are too many implications to decide the issue in the narrow context
of this case. Where nothing in the current 404 guidelines allows
such an approach,*/ and given the fundamental nature of the ques-
tions at hand and the widespread interest in these issues, any
change should be carefully considered. I disagree with those who
commented that I have attempted to set new policy in this case.
On the contrary, I have applied the guidelines in traditional
fashion, as the NE Corps was prepared to do in its proposed deci-
sion. This approach was reiterated recently in EPA’S national
draft mitigation policy.**/ While I accept that Pyramid’s proposal
to create wetlands is se?ious, I do not believe the overall project
complies with the 404(b)(1) guidelines.
/ The 404 guidelines do recognize wetland creation and habitat
restoration as techniques to compensate for adverse impacts (see
especially Subpart H). These actions, however, pertain to the
requirement of § 230.10(d) to take appropriate and practicable
steps to minimize impacts of discharges. This is one of the
“Restrictions on discharge” found in Subpart B; compliance with
this provision does not relieve the applicant of satisfying the
other requirements of § 230.10 including, among other things,
demonstrating that no less environmentally damaging, practicable
alternative exists.
/ Office of Federal Activities draft document dated November 25,
1985.
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VII. RECOMMENDATION
In the preceding sections, I explain the basis for my conclusion
that Pyramid’s proposal to fill 32 acres of forested wetland in
order to build a shopping mall would violate the section 404(b)(l)
guidelines. Sweedens Swamp is a typical forested wetland which
provides excellent wildlife habitat for birds and small mammals,
maintains water quality, provides valuable flood storage, and
discharges groundwater. Construction of a shopping mall at Sweedens
Swamp would be likely to have significant adverse impacts on the
wetland values, particularly on wildlife habitat at the site. The
project is non—water dependent, for which practicable, less environ-
mentally damaging alternatives exist. Further, mitigation (i.e.,
wetland creation) cannot bring this project into compliance with
the g iidelines, because mitigation is proper or consideration
only if the adverse impacts are unavoidable.
Under section 404(c), I must now consider whether these avoidable
adverse impacts are unacceptable. Nothing in the 404(c) regula-
tions, 40 C.F.R. Part 231, appears to compel an automatic finding
of unacceptability when there is noncompliance with the guidelines.
On the other hand, quite clearly one of the roles of section 404(c)
is to “police” the guidelines, and EPA has broad discretion to
construe the meaning of “unacceptable” impacts. To my knowledge,
EPA has never confronted the question whether a project which would
violate the guidelines could nevertheless be authorized under
section 404(c) based on a finding that the impacts would not be
unacceptable. I believe that in this particular case the large
loss of wetlands and wildlife habitat at Sweedens Swamp that would
result from this project, coupled with the project’s violation of
the central element of the 404(b)(l) guidelines, supports a finding
that the impacts are unacceptable. I therefore recommend that the
filling of Sweedens Swamp for the purpose of building a retail
shopping facility be prohibited.
Before reaching this conclusion, I carefully considered the possi-
bility of finding that, notwithstanding the project’s noncompliance
with the guidelines, Pyramid’s mitigation proposal would render the
impacts to Sweedens Swamp acceptable. Such a finding would support
a restriction of the filling of Sweedens Swamp, placing detailed
conditions on Pyramid’s overall plan to ensure that the mitigation
is accomplished to EPA’S satisfaction before Sweedens Swamp is
destroyed.
Development of conditions for a restriction would take considerable
time and technical expertise, and would require resolution of
numerous issues. Perhaps the most important of these are the
criteria to determine “success” and the length of time that would
need to elapse before we could confidently evaluate whether the
artificial wetland was successful. It would also be necessary
to decide how much mitigation is enough, given that botH wetland
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and upland habitat will be lost and that the impacts are avoidable
in the first place. We would need to determine whether additional
mitigation should be built in as a “buffer” against the loss of
wildlife habitat while the new wetlands are under construction and
in the early phase of development. Further, we would have to
consider whether in—kind replacement should be required; and if out—
of—kind replacement is accepted, whether additional mitigation is
needed. Conditions to ensure long—term success would be required,
relating to ownership, monitoring, and management of the site as
well as contingency plans for any necessary remedial actions.
Finally, the enforceability of the conditions would need to be
carefully evaluated: if the artificial wetland is only marginally
successful, or successful in some respects but not others, there
will be considerable pressure on the Agency to allow the mall
project to proceed regardless of the final outcome for the values
section 404 seeks to protect.
I believe that the restriction approach presents numerous complica-
tions in addition to the difficulty of writing the conditions of a
restriction, and should not be pursued in this case. I am most
troubled by the implications of authorizing under section 404(c)
of the Act a project which should have been denied under section
404(b). It is illogical to grant with one hand what the other
hand would prohibit. To do so would change the 404(c) process
from being an enforcer and protector of the guidelines, to being a
forum for obtaining what amounts to a variance or special permit.
There are no standards to guide me in deciding whether, when, and
how the 404(c) process can be used to thisend. Conceivably, a
situation may arise where the degree of noncompliance with the
guidelines is trivial, the impacts by any measure are acceptable,
and there are no far—reaching implications for the section 404
program. This case, however, is not such a situation.
I am also concerned about how the regulated community might inter-
pret EPA’S authorization of a project that does not comply with the
guidelines. Approval of this project on the basis of mitigation will
almost certainly be perceived as sanctioning a new interpretation of
the guidelines, no matter what safeguards we attempt to take. The
result could be a dramatic increase in the number of projects that
substitute mitigation for avoidance.
Finally, I doubt that Pyramid’s proposal is worth the environmental
risks that would accompany approval of a project which violates
the guidelines. As described in Section VI, Pyramid’s plan to
create wetlands to compensate for the destruction of existing
wetlands requires the Agency to make numerous assumptions and
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leaps of faith, including assumptions that all variables can be
controlled; that the wetlands even when functioning will provide
the values claimed; that shortterm success ensures long—term
success; that we know enough about relative habitat values to be
able to trade one for another and call it an environmental gain;
and so forth. Such assumptions ought not to be made, and the
risks of failure should not be taken, when the impacts are avoidable
in the first place.
I believe that the avoidance principle of the guidelines should
strongly influence the determination of acceptability or unaccepta-
bility in particular cases. Here, the wetland is valuable, the
loss is avoidable, and the project purpose can be accomplished
without violating the guidelines. On these facts I can only con-
clude that the adverse effects are unacceptable and must accordingly
be prbhibited.
Dated :/7 q 4 41 , / / 7 ip2 . DLL
Michael R. Deland
Regional Administrator, Region I
-------
APPfl .DC A
CHRONIILOGY OF ATTLERORO MALL CASE
1982 - Proposal by the DeBartolo Corporation to construct shopping
mall on Sweedens Swamp site (S. Attleboro) denied necessary
state wetland permit.
1983 — State Properties rejects offer to buy Sweedens wanp site
and acquires option on North Attleboro (upland) mall
site.
Pyramid Company elects to pursue Sweedens Swamp es future
mall site.
tiay 1984 — EPA attends an interagency pre—application confeyence to
discuss proposed Pyramid project.
June 1984 — EPA requests Corps to exercise discretionary aatti ority
and require an individual permit.
July 1q84 — Pyramid applies for Section 404 permIt.
August 1984 Corps exercises discretionary authority and issu a
public notice describing project.
September 1984 Corps holds public hearing on project. FWS submits
coments objecting to Issuance of the permit.
- EPA provides peel im1 ary review coments to the Corps.
October 1984 — EPA provides full review co3 ents to Corps focusing
upon environmental Impacts, alternatives, and idtigi..
tion and indicates that project is a candidate for a
404(c) actIon.
— Region I Regional Administrator, Michael Deland briefed
about project.
EPA first asked by mall opponents to exercise 404(c)
authorIty.
Wovember 1984 EPA, FWS, Corps, and Pyramid meet to discuss Federal
agency concerns. Pyramid fi rst proposes concept of
off—site mitigation to offset habitat losses.
December 1984 — EPA writes Corps requesting additional backgràund
Information contained in Corps’ files.
-------
—2—
January 1985 — EPA, FWS, and Corps meet to discuss status of project
and to allow the environmental agencies an opportunity
to restate their concerns.
— A consultant retained by the New England Division of the
Corps reviews marketing data of Pyramid and State Proper-
ties and concludes that while the market area will not
support two malls, either site is feasible for development.
— Region I meets with Pyramid representatives to discuss
alternatives and mitigation.
— FWS reiterates that Sweedens Swamp is valuable wildlife
habitat.
February 1985 — EPA writes Corps urging that permit be denied based on
noncompliance with 404(b)(l) Guidelines; EPA also ques—
tions whether project could pass Corps public interest
review.
— Corps informally notifies Pyramid of imminent permit
den i a 1.
— Pyramid submits rebuttal to Corps consultant’s report
about alternative mall site.
March 1985 — Massachusetts issues state wetland permit after much
controversy.
— Interest of outside groups increases markedly.
April 1985 — EPA sends letter to Corps detailing scientific, legal,
and policy difficulties of accepting mitigation in place
of proper alternatives analysis.
May 1985 — New England Division of the Corps drafts a recommendation
that permit be denied and forwards documentation to Office
of the Chief of Engineers.
— OCE reviews Division Engineer’s draft recommendation for
denial and directs that the permit be issued.
June 1985 — New England Division of the.Corps issues a notice of
intent to issue the permit.
— Region I participates in several meetings with the Corps
and/or Pyramid to discuss case.
— Issue arises in Senate oversight hearings on 404 program.
-------
—3—
June 1985 — Regional Administrator meets with the Massachusetts Asso—
(Cont.) ciation of Conservation Commissions, Inc. and represen-
tatives of the Coalition to Save Sweedens Swamp, at their
request.
July 1985 — Region I again meets with Pyramid representatives to
discuss case.
— Regional Administrator meets with State Properties to
discuss case at company’s request.
— Region I initiates 404(c) action.
— Major articles and editorials in local newspapers/tele-
vision coverage.
- Pyramid begins work at the site illegally; Corps issues
cease and desist order.
August 1985 - Region I publishes Federal Register notice d’f Proposed
Determination (50 FR 33835, August 21, 1985) soliciting
canments on the Region’s 404(c) action and announcing a
public hearing.
— Pyramid sues to terminate EPA’S proceeding.
September - Region I conducts a public hearing on September 26 to
1985 solicit canments on its 404(c) action. The public hear—
ir comment period closed on October 21; over 1200 com-
ments were received.
- Court dismisses Pyramid’s lawsuit.
October 1985 - Pyramid submits a mitigation plan to the Corps; Corps
schedules a public hearing for November 18 to solicit
comments on Pyramid’s mitigation plan.
— Pyramid files notice of appeal of order dismissing
lawsuit.
November. 1985 — Assistant Administrator for External Affairs, Joy
Manson, visits Sweedens Swamp site.
— Corps conducts public hearing on Pyramid’s proposed
offsite mitigation plan.
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—4—
December 1985 — Pyramid organizes letter writing campaign to the Presi-
dent.
— Region I begins preparing Recommended Decision to be
forwarded to Headquarters.
February 1986 — Pyramid files a second lawsuit against EPA, charging
that the regional recommendation has been delayed im-
properly and seeking a declaratory judgment that the
proposed determination is deemed withdrawn.
March 1986 — Region I recommends that the Final 404(c) Determination
prohibit filling of Sweedens Swamp.
-------
APPENDIX B
Habitat Evaluation
1. Description of Model
A community based evaluation system developed by Pyramid’s consul-
tants was used to estimate habitat value in numerical terms. The
model attempts to quantify wildlife values by using seven struc-
tural and botanical indices;*/ it does not attempt to measure
other environmental or social values. Wildlife values, presented
as “habitat units” (HO), are derived through straightforward
calculations. Each of the seven criteria is weighted so that
the sum of all weights equals one. An evaluation team in the
field divides the study area into relatively h’bmogenous cover
types and assigns each cover type a score between 0 and 10 for
each of the seven criteria. The products of these scores and the
pre—assigned weights are added to give a “sum of weighted scores”
for each cover type (10 being the highest possible score).
These sums are multiplied by the acreage of each cover type to
produce the number of habitat units. Finally, the number of
habitat units for each cover type may be added to give a total
for the entire site.
Hence, tile highest theoretical score for each cover type is 10 x
the affected acreage. A site of 50 acres, for example, could not
score higher than 500 HU. Of course, no actual cover type could
reach this theoretical limit because it is not possible to maxi-
mize all the model’s variables at once. A vigorous salt marsh
might score 9 or 10 for “productivity” but would have low
foliage height diversity. Likewise very few wetlands would
approach the theoretical minimum of zero. The vast majority of
vegetated wetlands (assume a 50 acre standard) would fall between
150—350 HO. Therefore general application of the model should
result in a strongly normal distribution of scores with a low
standard deviation. -
2. Results
The model was employed at the Sweedens Swamp site and later at
the proposed offsite mitigation area and an alternate mall site in
North Attleborough. The model was used to assess baseline (exist-
ing) and predict future (after construction) conditions at these
three sites. The data for these three sites are found at the
end of this appendix.
/ These are: 1) foliage height diversity; 2) “edge”; 3) moisture
— regime; 4) productivity; 5) plant species diversity; 6) pro-
portion of community in food production; and 7) win ter food
availability.
-------
—2—
During a one day site visit in August 1984, the applicant’s
consultants and federal agency representatives (“Assessment
Team”) evaluated Sweedens Swamp using the model.
TABLE B-i
Sweedens Swamp: Baseline Condition
o Wooded Swamp
o Shrub Swamp
o Marsh
o Open Water
o Upland Hardwood Forest 12.5 acres 48 Hu
o Abandoned Field/Disturbed 17.2 acres 53 HU
o Developed 2.8 acres 0 HU
Site Total: 82.0 acres 332 units
Based on the discussion above, the mathematical maximum score at
Sweedens Swamp site is 800 HU. The “realistic” range of scores,
however, is 240—560; to score lower or higher than this range
would indicate respectively either a degraded or extraordinarily
valuable wetland. The actual score, 332 HU, falls well within
the range we would expect for a normal functioning wetland.
Looking at the 50 acres of wetland cover types alone, the score
is 231 HU. This value is also well within the expected range
(150—350).
The model was also used by Pyramid’s consultants to predict the
value of the project site if the onsite mitigation were fully
successful. [ As discussed below, the value of the model for this
sort of speculation is limited.] Table B-2 compares the pre— and
post—project condition of Sweedens Swamp assuming fully successful
mitigation.
TABLE B—2
We ti and
_____ _______ _____________ Habitat Units
Baseline Condition 231
Project and Onsite 150
Mitigation
47.1 acres
0.6 acres
221
3
HU
HU
0.7 acres
5
HU
Sweedens Swamp:
Baseline and Proposed Conditions
Total
Acres
82
Wetland
Acres
50
-
Total
Habitat
Units
332
82
26
170
Net Change
0 —24 —162
—81
-------
—3—
The existing data are not adequate to predict precisely the loss
of habitat units from construction of the mall without onsite mi-
tigation. Undoubtedly, however, that loss would be substantially
greater than the 162 HO shown in Table B—2. If onsite mitigation
is included, the most favorable analysis projects a loss of 24
acres of wetland habitat and about 25 acres of upland habitat.
Total HO would permanently decrease by half and wetland HO by
over one—third. The model results support the conclusion that
Sweedens Swamp does provide values for wildlife and that these
values would be adversely affected by the project.
In October 1985 the assessment team reassembled and used the
model to estimate the baseline value of the Tiffany Street of fsite
mitigation area.
TABLE B—3
Tiffany Street Site: Baseline Condition
O Abandoned Field (south) 5 acres 26 HO
O Abandoned Field (north) 24 acres 114 HO
o Open Water 6 acres 1]. HO
o Aspen Stand 1 acre 4 HO
Site Total: 36 acres 155 HO
Pyramid’s proposed mitigation plan, if successful, would convert
this primarily upland area to an emergent wetland and open water
habitat. The predicted maximum value of the created wetlands is
219 HO. Assuming the mitigation is completely successful, the
mitigation work would therefore increase the value of the site by
65 RU. If applied against the predicted long term losses at
Sweedens Swamp, the net gain at Tiffany Street does not fully
compensate for the total loss of wildlife value (—162 HO) or the
loss of wetland values alone (—81 RU). This again assumes fully
developed and successful mitigation both on- and of fsite. Be-
cause Pyramid would attempt to create 30 acres of wetland from
upland at Tiffany Street and 9 acres of wetland from upland at
Sweedens Swamp, there would be a net increase in the absolute
number of wetland acres (and habitat units) if the mitigation
were successful. The entire project would result in a net in-
crease of 6 wetland acres and a decrease of 54 upland acres. -
Correspondingly, the entire project would result in a net increase
of 128 wetland habitat units and a decrease of 226 upland habitat
units. While Pyramid has pointed to the net increase of 128
wetland HU, it has ignored the net decrease of 226 upland HO.
In addition, Pyramid based its projections for offsite mitigation
on the expectation that onsite mitigation would be 100% successful.
Given the speculative nature of that estimate, the losses may be
greater.
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—4—
In November 1985 the federal agency representatives visited an
alternate mall site in North Attleborough where New England
Development proposes to construct the Emerald Square Mall. In
order to have the complete assessment team present EPA sought
to have Pyramid’s consultants participate in this evaluation.
New England Development, however, denied Pyramid’s consultants
access to the site. The evaluation results are summarized below:
TABLE B—3
North Attleborough Mall Site: Baseline Condition
o Upland Shrub 26 acres 148 HU
o Upland Forest 12 acres 56 HU
o Developed 10 acres 0 HU
o Mixed FoFest 4 acres 16 RU
o Disturbed Field 3 acres 7 HU
o Abandoned Field 1 acre 6 HU
o Wetlands 1 acre 4 RU
Total: 57 acres 237 RU
All but 1 acre of the site is upland. Similarly the measured
habitat value arises almost entirely from upland (233 HU) as
compared to wetland habitat (4 HU). The projected value of the
site after development is 49 RU, a total net loss of 190 RU.
This net loss is slightly higher than the total projected net
losses at Sweedens Swamp with onsite mitigation (162 HU). An
equal comparison without mitigation would show that the overall
impact to wildlife is numerically similar at both sites although
probably higher at Sweedens Swamp. In terms of wetland values,
the impacts would be much greater at the Sweedens Swamp site.
3. Model Limitations
The results of the model tend to confirm the views of the parti-
cipating federal agencies with respect to the wildlife values of
the three sites evaluated. Nevertheless, these numerical results
must be viewed with caution and not accorded too much weight
because the model (as does any model) has biases and limitations.
-------
—5—
This assessment method was originally developed by Normarideau
Associates to evaluate peat bogs in Maine.*/ While It can reason-
ably be used to evaluate other wetland systems, it is less certain
how well it can be applied to upland habitats (e.g., Tiffany
Street and North Attleborough). The FWS has expressed reservations
about use of the model. Although they agreed to participate in
the three site evaluations at the request of the NE Corps and
EPA, they did not endorse the method. FWS believes the model is
untested and its uses and limitations are unknown. No data exist
to identify what species, cover types or communities the model
discriminates for or against. Since the model relies on subjec—
• tive value judgments, the results may not be replicable.
EPA agrees that the model is untested and unpublished and may
have Lnherent biases of one kind or another. It is also subjec-
tive since values are arrived at by the consensus judgment of the
evaluation team. As with most habitat evaluation systems, this
model is more useful for comparing similar habitat types than it
is for comparing one habitat type to another. Hence, the emer-
gent wetland at Sweedens Swamp can be directly compared to the
emergent wetlands at the North Attleborough site more accurately
than, say, a shrub swamp can be evaluated against an upland
forest. Nevertheless, EPA believes the method was applied as
objectively as possible by the evaluation team and the results
rende in numerical terms the judgments of the participating t
biologists about the existing habitat value. Values predicted
for the created wetlands reflect the paper value of the mitiga-
tion schemes. These values do not represent a judgment by EPA or
FWS that the mitigation would develop as depicted on the plans.
Several other assumptions should be borne in mind when interpreting
the results of the habitat evaluations. First, since the model is
not annualized it does not account for the initial low quality of
the mitigation areas but instead assumes values typical of a fully
developed wetland system. Even if fully successful — and as dis-
cussed in Section VI, wetland mitigation has not always worked
well — the artificial wetlands would require from several years
(for the marsh) to perhaps a decade (for the shrub swamp) to reach
maximum sustainable value. In addition, the future scenarios for
each of the evaluated sites varies. Sweedens Swamp, if not devel-
oped by Pyramid, would likely maintain its current environmental
values although some development of the upland might occur. The
Tiffany Street site is currently abandoned. It is possible that
parts of the site could be developed or mined for sand and gravel
further in the future. The North Attleborough mall site will
almost certainly be developed. New England Development has stated
that it would develop the parcel for other purposes if a mall
could not be built on the site. Even if not developed, normal
successional changes would decrease annual productivity and edge
and reduce the numerical score of the North Attleborough site. An
*1 Dennis Magee, personal communication.
-------
—6—
annualized model would account for how these reasonably foreseeable
changes (or lack of changes) in land use affect predicted habitat
values.
Second, at least for the onsite mitigation at Sweedens Swamp, the
model assumes that each cover type is of equal value to wildlife
both before and after construction. For example, the forested
wetlands at Sweedens Swamp scored a numerical value of 4.7 (out
of a possible 10) per acre. Yet the four acres of wooded swamp
that would remain after construction also were given a value of
4.7 though they will be far less buffered frzn human disturbance.
Finally, despite attempts to be objective, the model may have been
uneven ly applied. The three sites were evaluated in three dif-
ferent months of the year and Sweedens Swamp was assessed over a
year before the other two sites. The team cc*nposition changed
for each evaluation. The FWS representative, for example, at
Sweedens Swamp was representing the Corps at the second two sites
for which the original Corps representative was not present (this
resulted from changes in employment). As noted above, Pyramid
was not able to participate in the evaluation of the Tiffany
Street site. What affect, if any, these factors had on the sub-
jective judgments of the team is unclear.
-------
WILDLIFE E /ALUATI(Z 1 FOR P SE]) NEW ORT GALLERIA
at S edens Swanp
Hard- J bandoned
W,oded Shrub Open W3od Field
Swamp Swamp Marsh - Water Ebrest Disturbed Developed ‘p,tal
CRITERIA
EScore: 0—101
Eb1iam eHeight 6 5 4 0 4 2 0
Diversity x.25
ge 6 4 8 6 7 4 0
x • 20
Moisture 3 6 6 3 1 1 0
Regine
x. 16
Prcductivity 3 6 10 2 2 4 0
x • 16
Proportion 4 6 8 1 5 4 0
Production
Fbod x.09
Diversity 6 5 5 1 3 5 0
x.09
WinterFbod 2 4 8 1 4 4 0
x.05
&,n of weighted
Scores 4.7 5.2 6.7 2.2 3.8 3.1 0
Existing reage 47.1 0.6 0.7 1.1 12.5 17.2 2.8 82.0
F cisting Wild— 221 3 5 2 48 53 0 332
life Value
Prcposed Acre e 4.0 8.3 12.5 1.9 0.0 6.4 48.9 82.0
Prc!posed Wild— 19 43 84 4 0.0 20 0.0 170
life Value
!LOTAL NET CI1 NCE: —162
-------
Wildlife Evaluation for Tiffany Street Mitigation Areas
Created
bandoned Field Open Abandoned Field Aspen Created Created Open
CCWER TYPE Disturbed (South) Weter Disturbed (North) Staid Marsh zub Swamp Weter
CRITERIA
[ Score: 0—10 1
Fbli eHeight 5 0 5 6 4 6 0
Diversity (x.25)
Fk ge(x.20) 5 3 4 6 8 8 6
Moisture
Regime(x.16) 3 4 3 2 7 5 4
productivity 5 2 5 6 8 7 4
(x.16)
PrcçortionFocd 5 2 5 6 8 5 4
production (x.09)
Diversity(X.09) 7 1 7 4 5 6 4
WinterF od(x.05) 5 1 5 6 8 4 3
‘JOTALS.
Stnn of Weighted 4.9 1.9 4.7 5.2 6.6 6.2 3.4 —
Scores
Existing Acreage 5.4 5.6 24.3 0.75 0 0 0 36
Existing wildlife 26 11 114 4 0 0 0 155
Value
PrcçosedAcreage 0 0 0 0 27 4 5 36
PrcposedVa lue 0 0 0 0 178 25 17 220
Net Change: +65
-------
WIlDLIFE EVALUATION FOR P1 )P0SFD 4ERALD SQUARE MALL SITE IN PUkTH A1’flEBORCUGI
Baseline Condition
C 1ER TYPE Upland Upland Develcped Disturbed Isolated Thandoned Mixed Prcposed C en
Shrub Forest Field Watlands Field Forest Marsh Water
CRITERIA
[ Score: 0-10 1
FoliageHeight 6 6 0 2 3 5 6 4 0
Diversity (x.25)
F 1ge(x.20) 7 6 0 2 5 7 4 7 5
Moisture
Reginie(x.16) 4 2 0 1 4 3 2 6 4
Productivity 6 3 0 2 7 6 5 8 2
(x.16)
ProportIon 5 6 0 2 6 6 4 8 2
FOod Production
Cx. 09)
Diversity 7 4 0 5 6 6 5 5 2
(x.09)
WinterFood 5 5 0 3 6 5 4 8 1
(x.05) ___________________
‘ ibtal
Sum of 5.8 4.7 0 2.2 4.9 5.4 4.4 6.0 2.4 —
ighted
Scores
Existir 25.5 12 10.4 3.0 0.8 1.1 3.7 0 0.0 57
Acreage
Existir 148 56 0 7 4 6 16 0 0 237
Wildlife
Value
Proposed 0 5.3 44.4 3.8 0 0 0 1.9 1.2 57
Acreage
Proposed 0 25 0 8 0. 0 0 11 3 47
Value
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APPENDIX C
Federal Register I Vol. 50. No. 152 / Wednesday. August 21. 1985 / Notices
33835
(OPP-30003/5D FRI.. 2373-31
Intent To Cancel Rglstratlon of
Certain Pesticide Products Containing
Sodium Huo?oacetate (“lOSO”)
Availability of Position Document 4
Correction
In FR Doc. 65-18138 beginning on page
31012 in the issue of Wednesday. July
31. 1985. make the following corrections:
1. On page 31013. in the first column,
in the sixth line, ‘40935” should read
“50935”.
2. On page 31017. In the second
column. In paragraph 2. in the last line,
statement’ should read statements”.
5” ’ _ s cora 1 1554 1 ’S
tFRL-aI 4l
Proposed Oetsnnlnatlon To I Jliit or
Reatric* the SpecIficatIon of en Area
for Use ass DIapo.al Sits Notics of
PuNk HssrIng
aovi v Environmental Protection
Agency..
* flOi1 Notice.
$lJMM*5V SectIon 404(c) of the Clean
Water Act authorizes the Environmental
Protection Agency (EPA)io prohibit or
restrict the discharge of dredged or fill
material at defined sites In the waters of
the United States (Including wetlands) If
It determines, after notice and
opportunity for heating. that use of the
site for disposal would have an
unaacptable adverse impact on various
resources. Including wildlife. EPA’s
Regional Administrator. Region L baa
concluded that he has rason to believe
that a proposal by The Pyramid
Companies (“Pyramid”) to fill portions
of Sweedeus Swamp In Attleboro,
Massachusetts. for the purpose of
- building a shopping mall. may have
unacceptable adverse Impacts on
wildlife and possibly other resources.
Accordingly. EPA is announcing the
Regional Mmiuistrator!s proposed
determination to prohibit or restrict the
filling of Sweedens Swamp and is
seeking public comment on his proposal.
Purpos. of Public Notice
EPA would like to obtain comments
on this proposed determination to
prohibit or restrict the disposal of
dredged or fill material Into Sweedena
Swamp. and on whether of not the
impacts of such disposal would
represent an unaccepable adverse effect
as desoribed in section 404(c of the
Clean Water Act.
Dayim All comments should be
submitted by 60 days from publication
of this notice to the person listed under
aoaop’egss A public hearing will be
held on September 1985. from 700 to
1100p.m.
Public Heating
A public bearing will be conducted on
September 26. 1985. from 700 to 11:00
p.m.. In the Attleboro High School
Auditorium, located on Rathbun Willard
Drive. in Attleboro, M”sacbusetts.
Written comments may be submitted
prior to the hearing. Both written and
oral co””n nts may be presented during
the hearing. The hearing record will
remain open for the submittal of written
comments until the close of the sixtieth
day after publication of thirnotice. or
possibly a later date annormced at the
hearing. _____
The Regional M.hl.trator’s
designee will be the Presiding Officer at
the heating. Any person may appear at
th hearing and present oral or written
statements, and may be represented by
counsel or other authorized
representative. The Presiding Officer
will establish reasonable 1hu 4tj on the
nature and length of the oral
presenta ona. No unse . v uv ’htaUon of
any heating participant wilt be
permitted, although the PT mdlng Officer
may make appropriate inquiries of any
such participant.
soORUU& Comments sh d be sent
to Lh I . M. Connally. U.S.
EnvIronmental Protection Agency,
WOB-2198. ) .P.IC . Federal fl iil 1htg
Boston. MA 02203 Copies of comments
submitted to EPA may be reviewed at
the same address. EPA regulations
provide that a reasonable charge may be
made for copying.
The public beating will be held in the
Attleboro High School Auditorium.
located on Ratbbrm Willard Drive. In
Attlebaro. Masaacbuaetta.
roe mTrem ssroem*tiow NTACT
Douglas Thompson. U.S. EPA. Region L
J.F. Kennedy Federal Building. Boston
MA i%v 3 : (617) 223-5600.
euP,taMEJiTAL eiroau*uwc
L Desaiption of the Sedan 404(c)
The Clean Water Act. 33 USC 1251e1
seq.. prohibits the discharge of
pollutants. Including dredged and fill
materiaL Into the waters of the United
States (Including wetlands) except In
compliance with, among Other thhrgt ,
- section 404. Section 404 authorizes the
Secretar r of the Army. acting through -
the Chief of Engineers, to auth9rlze the
discharge of dredged or fill material at
specified sites. through the application
of environmental guidelines developed
by EPA in conjunction with the
Se etary warranted by the
economics of anchorage and navigation.
except as provided in section 401(c).
Section 404(c) authorizes the
Administrator of EPA. after notice and
opportunity for heating. to prohibit or
restrict the use of a deflzu!d site for
disposal of dredged or fill materiaL
where he determines that such use
would have an unacccptable adverse
effect on municipal water supplies.
shellfish beds and fishery areas
(including spawning and breeding
areas), wildlife or scruff anal areas.
Regulations published at 40 CFR Part
231 establish the procedures to be
followed by EPA in exercising Its
section 404(c) authority. Whenever the
Regional Mml ’i 4 .trator has reason to
believe that use of a site may have an
cosptable adverse effect on the
pertinent resorcss, be may begin the
process by notifying the Corps of
Engineers and the applicant If any, that
heintendstolsaueaplupoud
determination - sectIon 404(4
Unless the applicant or the Corps
persuades the Regional Administrator
that there will not be w’ c.ptable
adverse impacts or ld.ntlfles .. ,. .c*Iba
measures satisfacts, to the Regional
AImh utrstor wIthin 11 days. be then
publishes a notice In the F.d al
Ragistur of his proposed determination
,oildtlng public “t”—it andoffezing
an opportunity for a public besting.
Today’. notice represents this step In
the process .
Following the public besting and the
close of the comment period, the
Regional M irator decides whether
to withdraw his proposed determination
or prepare a recommended
determination. If be prepares a
recu’ ended determInation, be then
forwards It and the complete
a bninl.tratlve record compiled In the
Region to the Assistant Ai ite4stratcr
for External Affairs at EPA’s
headquarter. for a final Ieci.iu1
affirming. modifying, or iew 4 n’Il’tg the
recommended determInatIon. The Corps
of Engineers and the applicant are
provided with another opportuinity for
consultation before this final decision is
made.
U. Dn nLp4Lon of the Site
The 80 aae project site Involved In
this action Includes a 50 aue welt T d ,
known as Sweedens Swamp, located
near the intersection of Routes 65 and
IA In Attleboro, Massachusetts. Largely
a red maple wetland adjacent to a
‘lbs p.nlusnt e ,Isl oe, ea ,t (s,th it 40 ax
Put O aid its ilee . IPL...4 loss
4osbIlflI da n._
-------
33826-
Federal Register / Vol. 50. No. 162 / Wednesday. August 21. 1985 1 Notices
headwater tributary of the Seven Mile
River in southeastern Massachusetts.
Sweedens Swamp is located roughly
one-quarter mile from the Rhode Island
border. The predominant habitat type is
deciduous forested wetland (45 acreas)
al though pockets of emergent and shrub
wetlands exist on-site. Several shallow
streams wind through the wetland and
there is some seasonal ponding of water
on the southern portion of the wetland.
Upland habitat types include oak
dominated forest and disturbed field.
Human di .tu bance is evidenced by
sporadic dumping of refuse and debris.
primarily at the wetland’s perimeter.
and by the s,dst nce of several foot
trails (with oc s onal use by 4irtbikesj
through the ii te.
Wefl.’ids. t valying digrees, have
hydrologic, biological, and social values .
Sweedens Swamp provides flood
storage but ft. role In this regard may be
limited s” ce ft Is located high jfl .Tl II
watershed (625 acres)The wetland also
may function to Improve or “taIn
water quality In the Seven Mile River by
the adsorption and uptake of
contaiinI t,- Pyramid states that most
of the water entering the sIte does not
contact the vegetation and that the
wefl nd therefore functions
“inefficiently” for water quality
renovation. it Is not clear, however.
whether Sweedans Swamp Is less
functional for water quality renovation
than other wooded swamps In New
England. Sweedens Swamp, which
overlie. a large regional aquifer,
functions primarily as a groundwater
discharge (rather than recharge) area.
EPA. the U.S. Fish and Wildlife
Service, and the New England Division
of the Army Corps of Engineers have
concluded that the site provides
excellent habitat for small , ,i miik
songblrds, reptIles. and amphibians.
This view Is based on the diversity.
density, and structural heterogeneity of
the vegetation In the swamp. Waterfowl.
Including black ducks and mallards. are
known to utilize the site: red shouldered
hawks, a predatory bird specie., have
been observed In the wetland.lu
addition to this. wildlife values. the
wetland may have social value as open
space and provide some opportunities
for passive ecraatlon (such as bird
wat ’ 4 ing). -
The proposed ibopping mall would
alter all but 4 sores of the site. Pyramid
proposes to place 985.000 cubIc yards In
32 acres of the wetland to construct the
buildutgs. parking areas. and roads
assococlated with the development. The
company also proposes to excavate 9.0
acres of upland to create wetland onsite
and alter 13.3 acres of the existing
swamp in an attempt to Increase its
value for fisheries, wildlife, and water
quality maintenance. In addition.
Pyramid proposes to mitigate the
impacts by attempting to build another
wetland, consisting of marsh, open
water, and shrub swamp at an off-site
location,
Ill. Procesdings to Date
In 198L the Dellartolo Corporation.
Pyramid’s predec.wr. failed In its
attempt to obtain a state permit to flit
the wetlands for the purpose of building
a shopping mall. Pyramid. h O v ,v ,ri. 15
Mardi 1985 received a permit from the
State for It. proposed development. The
Issuance of the state permit Is nuntly
being challenged In Massachusetts
Superior Court.
Pyramid applied for a section 404
permit from the Corps of Engineers in
July 1984. In October1984. February
1985, and April 1985. EPA objected to
Issuance of the permit on various
grounds. in particular. EPA expressed
concern that this non-water depandent•
project did not comply with the section
404(bXl) guId&”i s because there were
other practicable. less environmentally
damaging alternatives available to
s miplish the basic project pinpode ,
Attention has primarIly focused on an
alternate sit. In North Attleboro which
contains few wetlands and which the
Corps and EPA believe is a fea.Thle
location to develop a shopping in.1L The
U.S. Fish and Wildlife Service also
objected to permit Issuance for the same
reasons. -.
New England Division of the Corps of
Engineers Initially agreed that the permit
should be denied. but was Instructed by
the then Deputy Director of Civil Work..
General Wall. to forward Its files and
recommended de” lan to him for
review. In May1985. General Wall
concluded that th. project did comply
with the section 404 f(bffi) guidelines
because there was no practicable, less
environmentally d ii gfrig alternative.
His conclusion was based on a fluiMi 1 g
that (1) the North Attleboro site Is not
availabl, to Pyramid because It Is now
controlled by another developer and
that from Pyramid’s point of view the
site would not fulfill the purposes of It.
proposed project and (2) from the public
interest perspective, PyramId’s proposed
mitigation (I.e.. on-site and off-site
wetland “ “ c ”” '”t and creation)
would reduce the adverse Impacts of the
discharge to a point where no other sIte
- could offers less environmentally
damaging practicable alternative. In hi.
view, such initigation can be used to
satisfy the guidelines even when there
may be a practicable upland site
available. General Wall therefore
directed the Division to revise its
decision documents and issue the permit
with appropriate conditions,
Accordingly. on June 8. 1985. the
Division sent EPA its Notice of intent to
issue the permit.
On July 23. 1985. the Regional
Mmini trator of EPA notified the
Division and Pyramid of his Intention to
Issue a proposed determination to
ptohibft or restrict the use of Sweedens
Swamp as a disposal site, based on the
belief that the proposed project may
have unacceptable adverse effects—
specifically. th. avoidable loss of
wildlife habitat A IS day consultation
period ended on August 8, 1985.
Following another review of Pyramid’s
proposal. the Regional Administrator
was not persuaded that there would be
no unacceptable adverse effects from
the proposed discharge.
IV. Reels for Proposed Dsta 1 L tIon
A. Section 404(c) Crft.rio
As mentioned above, the Act requires
that exercise of final section 404(c)
authority be based one determlnlalion
of ‘imacceptable adverse affect” on
uuIcipaI water supplies. abel Web beds.
Submiss, wildlife, or recreational areas.
The regulations define this term at 40
R 2 31 .2(s) SL
hapact en so aquatic or wetland
ecosystem . whick Is likely to result In
hhirhhuI t degradation of monl6pal water
supplies ( hlI.hMthlg serfaco or grou.d water )
or significant loss of or damage to
el lIfiuIi&qg or wildlife habitat or recreation
sr ’s .. In evaluating lbS “ ' “ '‘ ‘-ptabuIIty of
suck Impact.. consideration should be given
to the relevant portions of the section
40qb iJ hi . (40 _-. Part 230).
The preamble explains that , Mc . one of
the basic functions of section 404(c) Is to
police the application of the section
404(bl(1) guldeth..s . those portions of
the guIdelines relating to alternative
sites may be considered In evaluating
the unacceptability of environmental
Impacts. 44 P.R. 58078 (Oct. 9.1978).
Thus, ti is appropriate under section
404(c) to take Into account whether the
loss of the resource Is avoI’ be-
B Impact, of Filling Sweadeng Swamp
Construction of the shopping mall
would result In the Initial, dIrect loss of
32 acres of w&laiid habitat If the on.
site wetland creation plan w -
successful, there would be a net loss of
23 acres of wetla id at th. site. -
ApproxImately 9 sores of upland would
be converted to wetlan& The rs uIkInIng
20 acres of upland habitat would be
replaced by the mall. This proposaLif
permitted, would be the largest single
loss of wetland authorized In
-------
Fedoral Register I Vol. 50. No. 162 / Wednesday. August 21. 1985 / Notices
33837
Massachusetts in the past five years.
and one of the largest fill projects In
New England during the last few years.
The hydrologic regime of the site
would be altered by the project. On one
hand, the remaining wetlands would,
according to the developer, function
better to maintain water quality. Since
the mall. hO r vii. would be a source of
various conthn ii nts to surface waters
it is unclear what the net effect upon
water quality would be. Flood .toi ge
capacity would be reduced by the
project but the developer In’e”ds to
provide adequate compensatory storage.
Adverse Impacts to wildlife will result
from the reduction of we’I nd acreage.
The native vegetation and the lees
mobile a’u” l species will perish vnd ’
the fill, Other species (e.g.. birds) may
escape ftoin the site and attempt to
relocate to other nearby hab1tat
relocation may not be successful.
however, for highly territorial species or
If th, adjacent areas are already at
canying capacity.
U the on-site and off-sits created and
enhwcd wetlands functinil as
described by Pyramid, they would
provide wildlife habitat. The
ieolacem wetlande.-howevur.
‘noibsoNbe same type as th se
desti ,,.4 and ou1d be utilized by
different wildlife species. The developer
has stated that the replacement
wetlands. although dlff.zviit from
Sweederis Swamp, represent less
common habitat types and should be
more attractive to waisrfowL Neither
the on-site nor off-site replacement
wetlands would be Immediately
available for wildlife use and the extent
of u’ ’ tIou would depend upon the
ultimate micce s of the wetland creation
effort.
Construction of the shopping mall and
the replacement wetlands will Involve
considerable dredging. fllluig and
eartbmovlng which will result In
temporaly increase in sedimentation
and turbidity or surface water In the
vicinity.
C Avoidability of the impacts on
Sweedens Swamp
As mentioned above. whether an
impact Is avoidable can affect Its
acceptability under section 404(c). This
Is cn” istent wIth 40 CFR 0.10(a) of
the guldelineL which requires that
(except for the navigation override), “no
discharge of dredged or fill material -
sballbepermltted lftbere lsa
practicable alternative to the proposed
discharge which would have less
adverse Impact on the aquatic
ecosystem. so long as the alternative
does not hove other significant adverse
L’nvirnnmental consequences.” The
preamble to the guidelines explains that
the particular alternatives approach
adopted by EPA reflects the view that
the waters of the United States “from a
priceless mosaic. Thus. If destruction of
an area of waters of the United States
may reasonably be avoided, It should be
avoIded.” 45 F.R. 85340 (Dec. 24 1980).’
To reinforce this point, the guidelines
establish a rebuttable presumption that
practicable. envfronm.ntally preferable
alternatives exist for “non-water
dependent activities,” such as shopping
centers, proposed to take place In
“special aquatic sites,” such as
wetlands. 40 CFR 230.10(a)(3).
Pyramid states that the alternative
sites Identified during the permit process
are not “practicable’ sites for shopping
• centers, citing factors such as access
from major highways, visibility. size,
lack of parking. dls’”ce from Its
preferred market area, and other
matters. However, this contention has
been disputed. A consultant hired by the
Corps concluded that at least me other
site three miles away In North Attleboro
(at the intersection of Routes land!.-
295) was also suitable for a sbopplig
mallofthegeneraltyp.proposedby
wOuld Pyramid. Moreovere another shopping
— developer has concluded that the
North Attleboro site Is suitable and Is In
the process of obtoI elng the necessary
permits to build. It also appears that this.
ens was available to Pyramid at the
time It made Its site selection. This site
Is an upland one (less than an acre of
wetlands), the use of which would
apparently have sigifficantly less
Impact on the environment than the use
of Sweedens Swamp, although some
similar questions have been raised
about both sites (e.g.. questions about
Impacts to water supplies).
Therefore, based on the present
record , It does not appear to EPA Region
I that Pyramid has clearly demonstrated
that there Is no practicable.
envIronmentally preferable sits for a
shopping center. We axe particularly
Interested in comments and information
from the publiconall aspects of this
issue.
D. Off-Side Mitigation
As described above. Pyramid has
proposed to create a new wetland at
another location In order to compensate
for values which would be lost at
Sweedens Swamp. While the off..lte
mitigation was not part of its original -
• Tb. pic. . $o.c a. So i.e. ib.t whea a
f. t ”r . TSN la i. So ‘9O ’ th&t
It b.c b.c. placed c.ders j ,iunl p.cmiz . sass.-
by.c.c. . cetytsd ah.rn.tivu Is cot e.c.nsiy.
‘liii I 1 y. . .y MI WaS rawo..d frc c.vurs .
tarn the 1 .m ,rn&l psirnet at 07. ass.5I.flm)
because se. c.pscu a.se cot ‘-‘-.-‘ -
permit application. Pyramid now
su98ests that this proposal means that
there could be no alternative site which
Is “enviroomentaliy preferable,”
The specific location and details of
the to-be -created wetland have not yet
been determined. The current leading
candidate is an abandoned gravel pit
located near Tiffany Street in Attleboro,
near the Ten Mile River. However,
questions remain about Its avsil ’bllity.
Its suitability for creation of a self-
sustaining. functioning wetland, and the
extent to which It could replicate the
values to be lost at Sweedens Swamp.
In addition, th. art of creating weI.n 1 .
Is not yet fully oiiilcestood, especially in
fresh water euvlevnments end
artIculazIy on the scale involved here.
EPA Is Interested In any co iu a.ts and
information on we’ t .”ds creation in
general: on the substitution of one kind
of wetland for another: end on what
would be requhed to establish a suitable
wetland at the Tiffany Street site, the
m lIhood of its long-term success, and
the performance msuurss necessary to
d.L . un es bw4nM, 1
the length of time It would take to be
ce ’ of such r ” ‘ ”s°
EPA has iradltlauaif not abargd
wetlands creation to be an appropriate
factor to c .I4 In w.lghSng the
environmental comparability.! two
practicable pruj.a sites under
$ 2Z -l0(a ) of the Guidelines. In other
. 45 EPA niecmofly does not evaluate
or accept mitigation (Inthe sense of
wetiana creation or ih . . waiit) ploiea
until after the alternatives test Is
satisfied. Therefore, even If the factual
probkm. with th. mitigation proposal
described above are resolved. there still
i n.* the questions (1) whether the
proposed mitigation elan can be found
to satisfy the practicable alternatives
testln $ 29010(a ) and (2) If the
mitigation proposal does not suietly
satisfy the guidelines, Is that
noncompliance suffident to re w.c the
adverse impacts at Sweedens Swamp
unacceptable within the meaning of
sectIon 401(c).
N. So -tIas of Comments
EPA solicits co ” .enb on all Issues
raised by Its proposed determination in
this-cue. Including. In particular.
wbether there lea practicable
alternative to locating a shopping center
In Sweedens Swamp. the relative
- environmental I scts ( to wildlife,
water supply and/or recreation) at the
various potential sites, the proposal for
off-site mitigatioe. and the acoeptability
or unacceptability of the Impacts likely
to occur if Sweedens Swamp is filled as
proposed. Comments should be sent by
-------
33S 8
Federal Register / Vol. 50, No. 162 / Wednesday. August 21. 1985 1 Notices
60 days from the date of publication of
thu Federal Register notice to the
person listed above under ADDRESSES
and may also be provided at the public
hearing announced above.
AU comipent. received, as well as the
hearing record will be fully considered
by the Regional Arhi ni trator in , n fr1ng
his decision to prepare a recommended
determination to prohibit or zutrict
filling Sweedens Swamp or to withdraw
todays proposed det 4
Dated: August 13.1985.
Michael 8. Da1 k
Regional Mm! fa t rotor.
(FR Dec. 81-19934 Filed 8-20-85; 8.45 aaj
LLD ’S UiI5--N
(F -aN8-2J
p
Science Advisory Board,
Under Pub. 1.. 92-483 notice Is hereby
given that a meeting of the Science
Advisory Board’s Dioxina Subcommittee
will meet September 4-6. 1985, at the
main auditorium of the EnvIronmental
Protection Agency’s Environmental
Monitoring Systems Laboratory, 944
East Harmon Avenue. Las Vegas.
Nevada. The seeetlng will begin at 80
a.m. on September 4 and adjourn at
approximately 400 p.m. on September 5.
The purpose of the meeting Is to
provide the Subcommittee with the
opporutnity to review the quality.
relevance an direction of the Agency’.
dioxins ’ research program. The p gram
has four major research components
including (1) q’cg 4 neering. (2) monitoring.
(3} environmental effects, and ( 4) health
effects and assessment. The program Is
discussed In a document prepared by
EPA’s Office of Research and-
Development entitled: Status of Dioxin
Research In the U.S. Environmental
Protection Agency. Individual copies of
the document may be obtained by
writing or calling Dr. Rizwanuj Haque.
Office of Environmental Processes and
Effects Reseitch. Office of Research and
Development (RD-Gee). U.S.
Environmental Protection Agency. 401 M
Street SW.. Washington. DC 20460(202)
382-5967.
The meeting Is open to the public. Any
member of the public wishing to attend.
obtain information, or submit written
comments to the Subcommittee should
notify Dr. Terry F. Yosle. Director.
Science Advisory Board at (202) 382-
4128 or M i. Patti Howard. Staff -
Secretary (A-lOIfl. 401 M Street SW..
Washington. D.C. 20460 or call (202)
382—2552 by close of business August 29.
1985.
Dated: August15. 1985.
Tiny F. Yode.
Dizectoz Science AdvizoiyBowd
(FR Dos. 85-19929 Filed 8-20.65; 5;4 5 aml
uiu.mo coos
(OPP-30253 FRL—2s 53-31
Idacon, Inc. Application To Register a
Psstlclds Product
AQINCY: Eavlron n ’.iital Protection
Agency (EPA).
acnosc Notice.
SUMMARY: This notice announces receipt
of an a licatlon toregisters pestir lIe
product COfl*Aining an active ingredient
not Included In any previously
registered product pursuant to the
provision of section 3(cff4) of the
Federal Insecticide, Fttng cMa and
Rodenticide Act (FIFRA), as amended.
DATE Com .nt by September20. 1985
auomm By mall submit . 1nente
Identified by the document tzul
• number (OPP-30253j and the file number
(10413-RU) tor
Information Services Section S-757 .
Program Management and Support
Division. Attn Product Manager (PM)
IL Office of Pesticide Programs.
En*OUInSTItII Protection Agency. 401
M St.. SW.. Washington. D.C )460.
In person. bring comments tor Ra. 236.
04*2. Attm PM 16 . RegistratIon
Division Cl’S-7wC) . Environmental
Protection Agency. 1921 Jefferson
Davis Highway. Arlington. VA.
Information submitted In any
comment concerning this notice may be
d&”ed confidential by marking any part
or all of that Information as
“ Confld..Mlal Bi” Information’
( I). Information so marked will not be
disclosed except in accordance with
procedures set forth In 40 CFR Part 2. A
copy of the comment that does not
contain CU! must be submitted for
lncln 1 on In the public record.
Information not marked confidential
may be disclosed publicly by EPA
without prior notice to the submitter. All
written comments will be available for
public Inspection In Bra. 238 at the
address given above, from 8a.m. to 4
p.m.. Monday through Friday. except
— holidays. _
FOR JRIlIER RIFORMATION ONTACY:
William MIller. PM 16. (703-557-2600).
$PPL8MINTARY INPORMATIOIC Idacoit.
Inc., 19611 Harwin Drive. SuIte 400.
Houston. 1 C 77038. has submitted an
application to EPA to register the
woodpecker repellent ST-138(R). EPA
File Symbol 20(13-RU. containing the
active Ingredient 3.5.S4rlmetbyl-2 .
cyclohexeue-t-one at 50 percent The
application proposes that the product be
classified for general use In wood
treatment facilities, utility poles. and
aossarms. Notice of receipt of this
— application does not Imply a decision by
the Agency on the application.
Notice of approval or a,ibl of an
application to register a pestiiI.
product will be announced In the
Federal Register. The procedure for
requesting data will be given in the
Federal Register If an application is
approved.
Comments received within the
specified time period will be conildered
before. final decision jJ___
In!n.nt , received after the time
specified will be coniidaw,d oiilg to the
extent pouthle without delaying
processing of the application.
Written e.m.m ttg filed pursuant to
this notice, will be available In the
PrognmManagement end Support•
Division (PMSD) of ce at the address
piivlded bumS a.m. to 4p.m.. Monday
through Friday. except legal holidays . It
Is suggested that persons Interested In
reviewing th. application file, telephone
the PMSD office (7O3-657-.3 ), to
ensure that the file Is available on the
date of Intn l d visit. —
niL ..qy 7 U.S.C. 136.
Dated: .A .t 7.1185.
Douglas 0. Camps,
Office of Pasdald. Pt . grawa --
(FR Doe. 81-16714 1Usd 1-20-15; 5;45 am ).
— N- .
IOPP-IOS* PH-FM. 28 55-SI
Issuance of Espedmentel U.. Permits
AGIJICY: Environmental Protection
Agency (EPA).
A TIOIC Notice.
SUMMARY: EPA baa granted
experImental use permits to the
following applicants. These permits a re
In accordance with, and subject to. the
provisions of 40 R Part 172. whIch
defines EPA procedures with respect to
the use of pesticides for experimental
- -
FOR PURTHIR DORM*TION CONT*C1
By mall, the product manager cIted hr
each experimental use permit at the
address below Registration Division
çrs-767c). Office of Pesticide Prcpams.
Environmental Protection Agency. 401 M
St.. SW.. Washington. DC 20460.
In person or by telephons Contact the
product manager at the following
address at the office Location or
telephone number cited In each
-------
APPENDIX D
RESPONSE TO COMMENTS
Region One opened a 60—day public comment period on August 21, 1985
which extended until October 21, 1985. On September 26, 1985 EPA
conducted a public hearing in Attleboro, Massachusetts. I solicited
public comments in my proposed determination published in the
Federal Register on August 21, 1985. A copy of the complete pro-
posed determination is included as Appendix C. Briefly, the pro-
posed determination sought public comment on a number of issues
including information pertaining to the biological and hydrological
values provided by Sweedens Swamp; whether or not the adverse
impacts from the mall could be avoided; information about wetland
creation attempts in general and in particular comments on the
advisability of substituting one type of habitat for another;
and specific comments about Pyramid’s proposed mitigation plans.
The degree of public response to EPA’S proposed determination has
been impressive. During the 60—day comment period J we received
over 1200 comments totalling thousands of pages. An estimated
1000 persons attended the public hearing which lasted nearly five
hours. Views range from strong support for the mall to strong
opposition to the proposal. Many comments were general and did
not address the issues raised in the proposed determination; others
were specific and provided detailed information in response to
EPA’s request. Many comments——both in support and opposition to
the mall——were thoughtful and demonstrated serious consideration
of the issues at hand. All comments have been read and evaluated
by Region One in reaching this recommended determination. EPA
appreciates the time and effort spent by all those who commented
to us about this case.
The very large number of comments makes it impossible to address
each one individually. We have instead chosen here to respond to
the major issues raised by the public during the 404(c) process.
This is a reasonable approach for several reasons. First, although
the number of commenterS is high, similar issues were raised re-
peatedly and can be best treated generically. Second, we believe
that many comments, particularly those on environmental issues,
have been addressed in the body of this recommendation. Finally,
several issues were raised which are either beyond the authority
or expertise of EPA or not pertinent to the decision.
The organization of this part basically follc5ws that of the recom-
mended decision. That is, we first address issues pertaining to
Pyramid’s proposal and the 404(c) process and then proceed, sequen-
tially, to comments about the environmental value of the site,
environmental impacts, alternatives and mitigation.
*/Many comments have been received both before and aftei the formal
omment period. These have been made part of the record for this
project.
-------
—2—
A. General Comments on the Project and 404(c) Process
Comment : The proposed mall would be good for the local economy
and tax base, provide jobs, and stop the flow of consumer dollars
into Rhode Island.
Response : EPA accepts that the proposed mall would provide economic
benefits to Attleboro although we have not attempted to validate
Pyramid’s specific projections in these areas. However, since
practicable alternatives must satisfy the basic purpose of the
project, these other alternatives would provide substantially
similar benefits. For example, the developer of the proposed mall
at the North Attleborough site predicts a similar range of economic
benefits from its project. That the benefits may not occur in
exactly the same community is not pertinent to EPA’s decision under
the national 404 program.
Comment : There is no need for a shopping mall at all, either at
the Sweedens Swamp site or at any location in the region.
Response : EPA has accepted the conclusions of Pyramid and others
that a market demand exists in the trade area for the type of
retail shopping the mall would provide. Whether or not the expected
viability of a shopping mall equates with a “public need” for such
a facility is a question beyond EPA’S authority to address. Our
evaluation is confined to an analysis of the environmental impact
of the proposed project and an evaluation of alternatives which
may be practicable and involve less environmental impact.
Comment : EPA’S 404(c) action is inappropriate since Pyramid underwent
extensive environmental review at the state, local and federal
level and has received the approval of every other agency charged
with evaluating the project. EPA should not preempt local decisions.
Response : Local views and decisions are an important consideration
to EPA. Nevertheless, the 404 program is a national program, with
national standards (the 404 guidelines) aimed at protecting wetlands
and other sensitive waters of the United States. EPA clearly has
the authority under 404(c) to restrict or prohibit a proposed
discharge even if it has been approved by other agencies. In this
particular case, the state law does not have jurisdiction over
project alternatives and wildlife impacts, EPA’S two key concerns
in this case. Despite this fact, the State proceeding was extremely
controversial since the project would not be permitted under cur-
rent state regulations. The NE Corps recommended denial of the
404 permit; it notified EPA of its intent to issue the permit only
after receiving directions to that effect from the Corps Headquarters
office. This reversal was based on a new interpretation of EPA’S
404(b)(l) guidelines. The FWS also has consistently opposed issu-
ance of a permit for this project. Pyramid’s proposal xnvolves
significant adverse environmental impacts making action under
404(c) appropriate.
-------
—3—
Comment : EPA should veto the project under 404(c) because it is
not water dependent, alternatives exist, or the impacts of the
fill are significant.
Response : Region I is recommending a “veto” for the reasons sum-
marized in Section VII of this document.
Comment : The Region I EPA office is setting new policy in this matter.
Response : As described in the text of this Recommendation, the
404 review has required that several important legal and policy
questions be addressed. Nevertheless, this decision generally
follows existing policy and does not urge the adoption of new
pol i c i e S.
Comment : EPA should extend or reopen the public comment period to
give . .nterested parties more time to comment, particularly on
Pyramid’s mitigation plan which was not available until late in
the 404(c) process.
Response : EPA provided an initial 60—day comment period. With
regard to Pyramid’s mitigation plan, the NE Corps provided a period
for public comment (and held a hearing) on the mitigation plan
from October 18, 1985 to November 28, 1985. EPA has incorporated
into its record all comments submitted to the NE Corps concerning
Pyramid’s project.
B. Comments Concerning the Environmental Value of Sweedens Swamp
Comment : Sweedens Swamp has been degraded by uncontrolled dumping
of trash and debris, is basically a dump, and poses various safety
hazards.
Response : As described in Section III, the dumping has occurred
primarily around the perimeter of the wetland with only scattered
evidence of disturbance in the interior of the wetland. The dump-
ing may have reduced the aesthetic value of the site but has had
little effect on other environmental values. To the extent that
there are adverse effects or safety problems from the dumping,
they can be largely reversed by removal and proper disposal of the
material. Such removal is the responsibility of the property owner.
In fact, to the extent that the dumping has been illegal under
Section 301(a) of the Act, EPA may consider whether enforcement
action to clean up the wetlands portion of the site is appropriate.
Comment : Sweedens Swamp is a dysfunctional or inefficient wetland
because the water that travels through the site does not interact
with the native wetland vegetation.
Response : Sweedens Swamp is not “dysfunctional”. There is nothing
in the record to support a conclusion other than -that Sweedens
Swamp is a typical headwater forested wetland. As described in
Section III, Sweedens Swamp stores flood water and does allow for
interaction of the water, soils and vegetation for a significant
percentage of water entering the site. Whatever the source of
water, Sweedens Swamp is wet enough to support a diverse and pro-
ductive community of wetland plant species.
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Comment : Sweedens Swamp is not valuable wildlife habitat, but in-
stead is home to only rats and mosquitoes.
Response : Section III lists the plants, birds and animals that have
either been observed at Sweedens Swamp or are likely to frequent
the area. Insects, of which there would be many, are not listed.
Comment : Sweedens Swamp is very valuable wildlife habitat for
waterfowl, mink, beaver, and otter.
Response : The wetland at one time may have supported mink, beaver,
and otter but there is no evidence that any of these species now
uses the site. Waterfowl do utilize Sweedens Swamp and have been
observed on site on several occasions. It is not prime waterfowl
habitat because the ratio of open water to vegetation is not optimal.
Comment : Sweedens Swamp is vital to maintaining the purity of
surf ace and ground waters and drinking water supplies because the
peat soils filter the water.
Response : Sweedens Swamp may act to improve water quality or
protect existing water quality. As discussed in Section III, EPA
does not believe that the wetland is critical for drinking water
concerns. The swamp acts more to discharge (rather than recharge)
groundwater except possibly during the dry summer months. In other
words, the water does not, as several commenters suggested, “seep
down through the peat,” although there would be some vertical move-
ment through the substrata at certain times. The swamp in its
existing state does contribute to maintenance of surface water
quality.
Comment : Sweedens Swamp is an important flood storage area.
Response : EPA agrees that the wetland has value for flood storage.
This has also been acknowledged by Pyramid and its consultants.
Comment : The value of Sweedens Swamp was greatly reduced when
Interstate 95 was constructed. (Several commenters asked why EPA
did not object to the roadway when it was proposed).
Response : Undoubtedly, 1—95 had a severe impact on Sweedens
Swamp. The road was constructed, however, before passage of the
National Environmental Policy Act which wo’uld have required prepar-
ation of an EIS, and before passage of Section 404 of the Clean
Water Act. If 1-95 were proposed today, EPA would object to con—
struction of the road through the middle of the wetland.
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C. Comments Concerning the Environmental Impact of the Project
Comment : Pyramid would improve the area by cleaning it up and by
creating new and better wetlands near the mall.
Response : Section IV describes the impacts to wildlife, flood
storage, and water quality that would result from the mall.
These impacts would be, in EPA’S opifliOfl, adverse, particularly
with respect to wildlife habitat. We agree that if Pyramid cleaned
up the site there would be an aesthetic improvement. However, with
the heavy human use associated with a shopping mall, it would be
difficult to prevent future dumping of trash and debris.
Comment : The new onsite wetlands would function better as wildlife
habitat and to maintain water quality.
Response : If the created wetlands can be successfully established,
they would not provide the same type of habi€at as that which would
be destroyed. Therefore, some species would benefit from the
change while other species would suffer. The total amount of
available habitat would decrease by 49 acres, however, so the net
impact upon wildlife would be negative. The impact to wat r qual-
ity is less certain. Pyramid’s proposed mitigation plan would in
theory increase the contact of the artificial wetlands with mall
runoff to enhance the opportunity for water quality rennovation.
At the same time, the mall will generate and discharge more pol-
lutants into Sweedens Swamp than which currently enter the site.
Comment : The proposed mall will adversely affect drinking water
supplies.
Response : As described in Section IV, EPA does not anticipate
significant adverse impacts to drinking water.
Comment : The mall will cause flooding near the site and downstream.
Response : Sweedens Swamp does serve as a flood retention area and
the mall will decrease the available storage capacity of the site.
Under the state permit requirements, however, Pyramid would provide
full compensation for lost flood storage. Therefore, EPA does not
expect significant flooding problems as a consequence of construct-
ing the mall.
Comment : The project will degrade both surface and groundwater.
Response : Short—term degradation of surface water would occur dür—
ing construction of the mall although it could be minimized by use
of erosion control measures. The long term impact of th? project
on water quality is unclear although it would be negative in the
aquatic ecosystems near the mall (See Section IV). Groundwater
quality should not be significantly affected by the project.
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D. Comments Concerning Alternatives to the Project
Comment : A shopping mall can be constructed anywhere and there
are many other sites in the area where Pyramid could build a mall.
Response : EPA does not agree that a shopping mall can be built
“anywhere”. However, EPA does agree that retail shopping facili-
ties, including a regional mall, could be constructed at other
sites in the area. (See Section v).
Comment : The North Attleborough alternative site is not a “practic-
able alternative” because it is not owned nor available for purchase
by Pyramid.
Response : To be practicable an alternative must be available to
satis fy the basic project purpose, not necessarily available to a
specific permit applicant (See Section V). In addition, the record
indicates that the North Attleborough site may have been available
to Pyramid at an earlier date.
Comment : The North Attleborough site is not practicable because of
a number of economic and logisitical factors including its location
with respect to the trade area and the major highways. The site
has a limited amount of developable land and problems with access.
Response : As discussed in Section V, the North Attleborough ite
can satisfy the basic project purpose of providing retail shopping,
and also is viable for a regional shopping mall. Typical of any
major development site, the North Attleborough location poses
certain difficulties. However, Pyramid has not demonstrated that
these obstacles to development could not be overcome, and the record
indicates that these problems can likely be solved.
Comment : The proposed North Attleborough Mall will cause signif i-
cant traffic related problems immediately adjacent to the mall and
on the connecting roadways.
Purpose : The Massachusetts Department of Public Works has jurisdic-
tion over these issues. In their comments to the Executive Office
of Environmental Affairs, during the state EIR process, DPW had
several technical comments and recommendations but concluded that
the project was a feasible one. The final EIR is expected to
analyze these issues more fully as well.
Comment : The North Attleborough site is not less environmentally
damaging than the Sweedens Swamp site because of impacts to wetlands,
wildlife, water supply, and groundwater.
Response : Section V discusses the environmental characteristics of
the North Attleborough site. The proposed mall development at this
site would adversely affect wildlife because approximately 34 acres
of habitat, primarily upland shrub and forest, would bedeveloped.
Less than one acre of wetlands, most of them isolated, would be
filled. The impacts to both wetlands and wildlife are less from
building a mall (without considering possible mitigative actions
at either site) at the North Attleborough site than at the Sweedens
Swamp site.
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The North Attleborough site lies within the watershed of a principal
drinking water supply for Attleboro, although the project site is -
small relative to the total watershed area. Provided that a variety
of temporary and permanent measures to manage stormwater are imple-
mented, EPA believes that the risk of potential impacts to the
water supply is within the level normally considered acceptable.
The site is underlain primarily by glacial till, which generally
has low permeability. While no site specific base—flow calculations
have been made, base flow contributions from a site composed mainly
of till will be insignificant in comparison to base flow from other
areas in the watershed where sand and gravel deposits exist.
Comment : Development of the North Attleborough site would have an
unacceptable impact to the local elementary school on Allen Avenue
and the -nearby residential neighborhoods.
Response : These issues are not directly pertinent to EPA’S decision
under Section 404(c) of the Clean Water Act. While they are issues
of considerable local importance and concern, they are of the type
normally addressed during the local planning and zoning approval
process. EPA lacks the authority or expertise to intervene for
non—environmental reasons in the decision of the town of North
AttleborOugh to allow development of a mall at this site. We db
note that the developer of the site, New England Development,
Inc., has proposed numerous measures intended to miminize impacts
to the school.
Comment : A shopping mall could be constructed on the upland portions
of Pyramid’s project site.
Response : Since only about 32 acres of upland exist at the site and
it is not all one contiguous parcel, it apparently would be diff i—
cult to construct a shopping mall without filling wetlands. EPA
has not evaluated this option in detail because of the existence of
other upland parcels that are available to satisfy the basic project
purpose.
Comment : Constructing several smaller shopping areas around the region
is a viable alternative to Pyramid’s current proposal.
Response : Given the existence of sites in the area which are
capable of supporting a regional mall, EPA did not need to reach
the question whether scattered smaller shopping facilities around
the region would satisfy the basic project purpose.
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E. Comments Relating to Pyramid’s Mitigation Proposal
Comment : Mitigation cannot be substituted for the alternatives
requirements of the 404(b)(l) guidelines.
Response : EPA agrees, for the reasons set forth in Section VI.
Comment : Pyramid’s mitigation proposal would improve the environ-
ment because it would create high quality wetlands of more value
to wildlife.
Response : Even if fully successful, Pyramid’s mitigation plan would
result in a net loss of overall wildlife value (See Section VI and
Appendix B). Any gain in wetland acreage and wildlife value would
be at the expense of existing upland and wetland habitat.
Comment : Creation of artificial wetlands is an established science
and artificial wetlands can be built with certainty. Therefore,
Pyramid’s offer to create artificial wetlands is “risk—free”.
Response : The record shows that certain types of wetlands have
been successfully managed or created. Other attempts to create
wetlands, however, have failed or not been as successful as antici-
pated. Moreover, there are no well established criteria by which
to judge whether or not artificial wetlands are “successful”.
(See Section VI.).
Comment : The proposed artificial wetlands would not be of the same
type as those Pyramid would destroy and the proposal is unacceptable
for that reason.
Response : EPA is concerned that out—of—kind wetland replacement is
being proposed here, although EPA does accept out—of—kind replace-
ment in some instances (e.g., when the adverse impacts are unavoid-
able and in—kind replacement is either not feasible or desirable).
More importantly, however, in this instance EPA believes that the
adverse impacts are avoidable, making consideration of mitigation
inappropriate altogether.
Comment : Substituting the artificial emergent and shrub wetlands
for the wooded wetlands at Sweedens Swamp is environmentally sound
because forested wetlands are comnon while emergent ones are not.
Response : EPA is aware that forested wetlands are a more common
type in New England but we do not agree that this provides suffi-
cient justification for trading of f these wetlands for artificial
ones when the impacts could be avoided altogether. The relative
scarcity of a wetland type may be a factor in deciding what type
of wetland to attempt to create when the impacts are unavoidable.
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