October 13, 2009

District Engineer
Inland Branch
U.S. Army Engineer District, Mobile
P.O. Box 2288
Mobile, AL 36628-0001

RE: Public Notice No. SAM-2009-1111-SMZ, Stockton at Highway 59, LLC

To Whom It May Concern:

We are Mobile Baykeeper, a twelve year old nonprofit organization with the mission of providing citizens a means to protect the beauty, health and heritage of the Mobile Bay watershed. We are submitting comments on the application by Stockton at Highway 59, LLC for filling and impounding of wetlands and waters in conjunction with the construction of dams to create four recreational lakes on Flat Creek and tributaries to Aiken Creek and Rains Creek in Stockton, Baldwin County, Alabama on behalf of our board, officers, staff, and more than 3500 members. We have serious concerns about the proposed project’s direct and indirect impacts to water quality, wetlands, and wildlife habitat, as well as potential effects on the off-site receiving waterways and associated wetlands and future implications from the wetland impacts. Mobile Baykeeper respectfully requests a denial of this permit application as submitted.

In deciding whether to issue a Section 404 permit, the Corps must apply the Environmental Protection Agency's (EPA) Section 404(b)(1) Guidelines (Guidelines) whose purpose is to restore and maintain the chemical, physical and biological integrity of the waters of the United States. As required by the Clean Water Act (CWA), the Guidelines specify where and under what conditions dredged or fill material can be discharged lawfully. Section 230.10(c) prohibits discharges that will cause or contribute to significant degradation of the waters of the United States. The creeks intended to be impounded flow into Hastie Lake which then empties into the Tensaw River. The Tensaw has been designated an Outstanding Alabama Water. According to the Alabama Department of Environmental Management, high quality waters that constitute an outstanding Alabama resource, such as waters of state parks and wildlife refuges and waters of exceptional recreational or ecological significance may be considered for classification as an Outstanding Alabama Water (OAW).

The impoundment and inundation of wetlands and streambed in and around Aiken, Flat, and Rains Creeks constitutes a serious threat to water quality in the Tensaw River watershed through alteration of the area’s hydrology. Sedimentation and erosion from construction of dams pose more immediate threats to water quality in the watershed. Future construction of boat ramps, marinas, roads and any other access points/facilities to make the lakes viable recreational fishing areas will add further opportunity for degradation of these water bodies.

Section 230.10(b) of the Guidelines also prohibits discharges that will jeopardize threatened species. This area of Baldwin County is known to be habitat for alligators, black bears, various species of waterfowl and watersnakes, as well as Alabama Red-Bellied Turtles, a federally listed endangered species. As such, the preliminary statements listed in the public notice that “the proposed activity will have no effect on any listed endangered or threatened species” is presumptuous until a clear determination can be made by the U.S. Fish and Wildlife Service on the project’s potential impact to any present species.

Mitigation for this project, as outlined in the public notice, is unsatisfactory for a project of this scope and due to the presence of high quality wetlands within the project footprint. Mobile Baykeeper continues to maintain that all mitigation for wetland impacts on a given site should be within the closest vicinity to the affected area. We recommend any mitigation take place within the 8 digit HUC catalogue unit, preferably within the 12 digit HUC subwatershed, to the wetlands that have been disturbed so as to provide the most minimal impacts to hydrology within the site’s surrounding drainage basin. A large-scale mitigation as required by this site would be better suited to the affected Mobile-Tensaw watershed, rather than offsite, in protecting the Tensaw for the effects of this development.

Of foremost concern about this project is the lack of sufficient study of the site. The National Environmental Policy Act requires preparation of an environmental impact statement prior to major federal actions that significantly affect the quality of the human environment. The permit decision here requires preparation of an EIS because of the scale of the proposal and magnitude of its potential impacts on the environment. The project, located on a 5,000 acre parcel of land, will eliminate at least 121.8 acres of wetlands and destroy over 13, 557 linear feet of streams.
The lack of clear information about the scope of the project and its associated impacts should duly show the absolute necessity for an EIS. When Cooper Land Development proposed a development on this parcel in 2003, Public Notice AL03-00285-H, we called for an EIS due to the nature of that project. In September of 2003 the Corps announced their intention to prepare a draft EIS for that project to ensure compliance with NEPA requirements. Cooper Development then withdrew their application, most likely because they anticipated the Corps’ finding would not allow permit issuance due to the scope of that particular project. Although this new proposal makes no mention of residential development at this time, an EIS is warranted because of potential long-term impacts to the Tensaw watershed from this project. Mobile Baykeeper must insist that no permit be issued for this project without a full National Environmental Policy Act review, which should include an environmental impact statement which thoroughly evaluates all direct, indirect, and cumulative project impacts.

We also request the Corps hold a public hearing on this project. We believe there is sufficient public interest and significant potential environmental impact to warrant a hearing. Such a hearing will ensure that local citizens shall have an opportunity to learn more about the project and voice their support or concern.

Thank you in advance for your consideration of our comments. If you have any questions, please feel free to contact us at 251-433-4BAY (4229).

Sincerely,

Casi Callaway                                                                       Donna Jordan
Executive Director & Baykeeper                                             Program Director

cc: Alabama Department of Environmental Management
United States Fish and Wildlife Service
Ben Bailey, President, Stockton Civic Club
Frank Burt, County Commissioner, District 1
Wayne Dyess, Baldwin County Planning and Zoning Department
Joe Faust, State Representative
Marc Keahey, State Senator
Steve McMillan, State Representative
Trip Pittman, State Senator
Harry Shiver, State Representative