Operations Division

 

 

Mr. Melvin C. Beall

Charles County Department of Planning

   and Growth Management

P.O. Box 2150

LaPlata, Maryland  20646

 

Dear Mr. Beall:

 

     This is in reference to your application, CENAB-OP-RMS (CH GOVT/CROSS COUNTY CONNECTOR, PHASES 6&7/RD XING 7 BRIDGE) 2005-60531, requesting Department of the Army authorization to construct Phases 5, 6, and 7 of the Cross County Connector (CCC),  which is located within the Mattawoman Creek and Port Tobacco River watersheds, from Middletown Road to Indian Head Highway, Charles County, Maryland.  We are providing comments from our initial review of your proposal and those received during the public notice comment period from June 30, 2008, to September 15, 2008.

 

     We are currently reviewing your application for Department of the Army (DA) authorization to construct the road extension by filling and grading 7.18 acres of federally regulated wetlands and 2,151 linear feet of stream channel.  The proposed highway crosses a major stream and floodplain complex, Mattawoman Creek, and two additional minor stream systems.  The application is being processed under Section 404 of the Clean Water Act.

 

     We require additional information in order to complete our review of this project.  The following sections summarize our concerns and those received from the various public and agency commenters.  This letter provides a synopsis of these comments and those issues that we believe need to be addressed to enable us to complete our evaluation of your proposed project in accordance with DA regulations implementing the Clean Water Act at 33 CFR 320-332 and 40 CFR Part 230 Section 404 (b) (1) guidelines.

 

     Based on our initial review and comments received during the public notice comment period and joint public hearing, we recommend the County address the following issues:

 

1.  Purpose and Need.   Clarification to the County’s proposed project purpose and need is required.  The Council on Environmental Quality regulations implementing the National Environmental Policy Act (NEPA) calls for a statement of purpose and need (40 CFR 1502.13). The Section 404 (b)(1) Guidelines include a basic purpose (40 CFR 1502.10 (a) (3)) and an overall project purpose (40 CFR 230.10 (a) (2)).  For purposes of definition under Section 404, the Corps would define the project’s basic purpose as “to build an east-west road extension.”  We would define the overall project purpose as “to provide safe transportation, alleviate traffic, and support planned development within an east-west infrastructure.”  In a letter dated September 15, 2008, the Environmental Protection Agency (EPA) concurred with our request and stated that the basic and overall project purpose must be clearly defined to reflect existing conditions.  Clearly defining the project is required to fully evaluate alternatives in accordance with the 404(b)(1) Guidelines and NEPA.  The overall project purpose must be specific enough to define the applicant’s needs, but not so restrictive as to preclude all discussion of alternatives.  Defining the overall project purpose is the responsibility of the Corps; however, the applicant’s needs are considered and must be specifically identified.

 

     Three different statements have been used by the County to define the Purpose and Need for the CCC.  The first, in the County’s 1996 environmental document, stated that the project purpose was “to provide a direct transportation link between the Maryland Route 5 and Maryland Route 210 corridor and to begin establishing the transportation infrastructure that will be needed to accommodate the planned growth in the Development District, especially between the Urban Core and the Bryans Road Town Center.”  The project need was stated as “to provide services in the Bryans Road and Waldorf areas and to meet the transportation needs of the residents in the northeast and northwest quadrants of the County.  Providing a direct link to the Bryans Road Town Center and ultimately access to the Washington Metropolitan region will serve the residents of Charles County as well as the region and enhance the quality of life.”  On April 12, 1995, we concurred with the Purpose and Need Statement stated in your 1996 document. 

 

     The April 26, 2005 permit application changed the Purpose and Need to include a safety element for vehicular traffic currently travelling along the east-west corridor known as Billingsley Road.  Finally, the County’s 2008 supplemental document revised the Purpose and Need Statement to incorporate safe and efficient transportation infrastructure improvements necessary to support planned growth within the Development District of the County.  This statement of Purpose and Need eliminated both the east-west transportation access and access to Washington Metropolitan Region.

 

     Opponents of Phases 5, 6, and 7 of the CCC submitted comments stating their concern that the proposed road will spur development.  Your 2008 supplemental report contends that existing zoning, and not the proposed CCC, is the primary catalyst for the development.  The report also documents that safe and efficient transportation infrastructure improvements are necessary to support planned growth within the designated Development District of the County.

 

     You have indicated that Charles County does not consider any of the approved development in the Development District to be dependent on the proposed CCC.  However, the County’s 1996 Environmental Report states that in late 1988, the County Commissioners authorized a study of an arterial road connection between Middletown Road and Maryland Route 210, which was prior to the 1990 Comprehensive Plan that created the Development District.  Project opponents argue that the road and development were proposed concurrently and that the planned project has resulted in direct, indirect, and cumulative impacts beyond the right-of-way of the road. Opponents have also pointed out that the County’s 2008 report states that developer constructed roads would result in a fragmented road system with inefficient and substandard safety conditions.  Consequently, opponents to the project conclude that the development could not have occurred without the CCC because the existing transportation infrastructure would not support growth in the Development District.  We request that you address these points raised in public notice comment letters questioning the stated purpose and need for this proposed road, and the effect the proposed CCC has had on development in planned growth areas.

 

            2. Alternatives.  Review of practicable alternatives to the proposed project is required as part of our review process and is dependent on the Purpose and Need of the project.  In certain circumstances, NEPA requires that we analyze alternatives beyond the applicants’ capability in order to make an informed public interest decision.  The Guidelines do not require an elaborate search for practicable alternatives, however, if we determine that there are only minor differences between the environmental impacts of the proposed activity and potentially practicable alternatives, sufficient information must therefore be submitted to determine whether the proposed activity is in fact the least damaging practicable alternative.

 

     One aspect of our review is to determine whether potential alternatives would result in no identifiable or discernible difference in impact on the aquatic ecosystem.  Those alternatives that do not may be eliminated from the analysis since Section 230.10(a) of the Guidelines prohibits discharges when a practicable alternative exists when it would have less adverse impact on the aquatic ecosystem.

 

    The alternatives that should be examined include: no action; new road corridors; improvement of existing roads; alternative routes; and mass transit options.  The 1996 County report focused solely on four lane improvements of Billingsley Road with highway design speeds (55 mph) in a narrowly defined study area paralleling the existing road.  Since that study, there have been several nearby road improvements including the widening of Middletown Road and Berry Road (MD RT 228).  The 2005 application states that the proposed highway will provide a safe east-west access between Middletown Road and MD RT 210 and alleviate unsafe existing and future accident and traffic conditions on Billingsley Road.  However, neither the County’s 1996 report nor 2008 supplement document alternatives have been considered for improving safety problems on Billingsley Road or what impact the proposed highway, recent road improvements, and induced development will have on traffic conditions and safety of the existing road.  The County studies do not break down accident statistics by road sections, single-car versus multiple car accidents, and speeding records, or provide evaluation of traffic calming measures, increased enforcement, or section specific improvements for improving safety on the existing two lane Billingsley Road.  Moreover, no information was provided for the proposed traffic and accident rates for highways of similar design or other roads in the region that we could use in our evaluation of the proposed road and alternatives.

 

    Improvements to other roads facilitating east-west traffic (e.g., Billingsley Road, Mill Hill Road, MD RT 228, 225, 224, 227, and 210) in this northwest region should be examined as part of the alternatives analysis considering the 2008 supplement indicates that the existing roadway network in the vicinity of the CCC can handle the existing and proposed planned development.  Clarification on the purpose of the CCC and potential alternatives may alleviate the confusion resulting from previous information submitted to this office.

 

    The Maryland State Highway Final Environmental Impact Statement for MD RT 228 (page VI-234) states that MD RT 228 will provide an effective cross county link to Bryans Road.  Similarly, your current proposal identifies CCC as a transportation corridor to facilitate east-west movement across the county south of Waldorf connecting US 301 to MD 210 in the Bryans Run area.  You have not justified why another east-west connector road is needed four miles to the south of MD RT 228.  The purpose for constructing two new roads approximately four miles from each other should be provided in your response.

 

    Many commenters proposed the construction of a dualized Billingsley Road west of Middletown Road in conjunction with improvements of Middletown Road and MD RT 228 as an alternative to CCC.  Safety improvements and traffic calming measures for the portions of Billingsley Road west of Middletown Road (not part of the proposed project) should be examined to address the safety aspects of an upgrade alternative.

 

    Agency comments from EPA, Maryland Department of Natural Resources (MD DNR), and other concerned organizations and citizens also commented that practicable alternatives have not been fully explored when attempting to justify this project.  Information pertaining to the above-referenced alternatives is required as part of our review process.

 

2a. Traffic Impacts.  Much of the traffic information provided is outdated and does not reflect the existing or planned transportation infrastructure in the study area.  Therefore, new   traffic studies should be performed to allow for an accurate examination of all of the alternatives including your preferred alternative.  These studies will enable examination of how the proposed project would affect or change traffic patterns on roads in the region as described in the County’s 2008-2012 Transportation Plan.  The 2008 Charles County budget identifies at least six future road projects.  The traffic analysis should incorporate the transportation infrastructure that has been constructed and that is proposed for construction since 1996.

 

     Detailed information on potential mass transit alternatives that may address traffic concerns in this area should be provided.   In addition, the County should demonstrate whether alternate transit options might serve as a component of the alternative including the proposed CCC.  Mass transit options could support areas of Bryans Road and Waldorf.

 

     We also suggest the County examine the potential impact of  the proposed  US 301 Western Bypass interchange on your proposed CCC project should this alternative be selected as the preferred alternative for the US 301 Waldorf Area Transportation Improvement Study.

 

    In addition, the concerns expressed by residents along the proposed CCC right-of-way and Billingsley Road, in particular, safety, traffic congestion, noise, air pollution, and decreasing property value, should be addressed.

 

2b. Residential Communities.  The proposed CCC splits several residential communities (e.g., Kingsview and HighGrove), potentially adversely impacting these residents.  The County should address concerns raised by residents and private organizations during the comment period regarding increases in air pollution and noise from the proposed road, safety concerns, and flooding on existing Billingsley Road.  The County should also identify comparable highway and building sites for calibrating noise models and examine abatement measures.

 

3. Indirect and Cumulative Effects.  Cumulative impacts are defined under the Council on Environmental Quality NEPA implementing regulations (40 CFR Part 1508.7) as those resulting from the incremental impact of the proposed action when added to other past, present and reasonably foreseeable future actions regardless of what agency or entity undertakes these other actions.  Cumulative impacts result when the effects of an action are added to or interact with other effects in a particular place and within a particular time.  It is the combination of these effects, and any resulting environmental degradation, that should be the focus of cumulative impact analysis. While impacts can be differentiated by direct, indirect, and cumulative, the concept of cumulative impacts takes into account all disturbances since cumulative impacts result in the compounding of the effects of all actions over time.  Thus the cumulative impacts of an action can be viewed as the total effects on a resource, ecosystem, or human community of that action and all other activities affecting that resource no matter what entity (federal, non-federal, or private) is taking the actions.  

 

    As stated previously in our February 2008 meeting, we believe that cumulative effects assessment should include past, current and “reasonably foreseeable” impacts between the Maryland Routes 228 and 227 and including the Bryan’s Road Town Center (Maryland Route 210).  Realizing that both the proposed road and development have been planned since 1988, we recommend the County identify a more reasonable assessment of the induced growth including a map of developed and undeveloped properties that have been built or approved in the study area (subdivisions, roads, utilities, etc.).  In addition, were require more detailed information regarding development potential in the Deferred Development District to address the cumulative effects of the proposed action on the environment.

 

    We believe that the County has not provided information on what portions of the CCC road right of way have been purchased or properties/right-of-way that could be acquired that would facilitate shifts of the alignment that may further reduce impacts to aquatic resources.  We recommend that you explain details on the efforts to reduce indirect impacts of the proposed road including discharge from impervious surfaces and reduction of forested stream buffers.

 

     The County should assess other anticipated development (including public works roads and utility projects) which can be reasonably forecasted, and analyze the combined effects of these developments as well as past and present activity.  The Corps Planning Division’s 2003 Mattawoman Creek Watershed Management Plan states that current development pressures have had adverse impacts on the habitat value and water quality of Mattawoman Creek.  Estimates of the Mattawoman’s impervious cover from the Watershed Management Plan and MD DNR range from 9 to 9.5%.  Studies suggest that about 10% impervious cover constitutes a threshold for significant impacts to aquatic resources.  The County’s 2008 supplemental report only provides estimates of the impervious surfaces of the road.  This report did not provide estimates of future impervious cover by sub-watershed and how each alternative achieves minimization and reduction of impervious surfaces to the Mattawoman watershed, as requested in our June 27, 2005 letter.  We believe the County should provide these estimates, especially for those sub-watersheds encompassing the Deferred Development District based upon current development patterns. 

 

    The supplemental report lacks long-term specific management strategies to maintain or even reduce impervious cover as recommended by the Watershed Management Plan.  The County should explain what broader measures of watershed protection the County is willing to provide to minimize or reduce impervious cover and habitat degradation in the Mattawoman watershed in both the Development District and the Deferred Development District.

 

    The County states in their 2008 supplemental report summary that they are committed to protecting the Mattawoman Creek through the minimization of impacts and the mitigation efforts proposed in the application.  To assist in this effort, the Corps 2003 Mattawoman Watershed Plan makes three specific recommendations that will help maintain the natural resources of the stream system and promote sound development strategies.  The three recommendations are:

(1) the stream valley should be delineated and protected through zoning, acquisition, or ordinance changes; (2) the site planning of future development should implement low impact design techniques, minimize impervious surfaces, and promote stormwater disconnects; and

(3) examining existing development to develop projects to retrofit stormwater runoff from existing development.

 

    The County’s efforts to protect the Mattawoman watershed lacks solid tangible commitments in the forms of new regulations or zoning ordnances that will insure that the specific recommendations of the Mattawoman Watershed Management Plan are carried out in both the Development District and  the Deferred Development District.  The County cannot rely on State and Federal regulatory programs within their limited scope of review to protect the aquatic resources of the Mattawoman Creek.  Please address the comments that under the current development pressures/scenarios there will be increased loading of nitrogen, phosphorus, and suspended solids to the stream resulting in overall decline of the habitat value and water quality of the creek.

 

4.  Mitigation.  Under the Section 404 (b)(1) Guidelines, applicants are required to demonstrate avoidance and minimization of impacts to aquatic resources to the maximum extent before proposing to offset the impacts with compensatory mitigation.  Currently, your efforts to avoid and minimize direct impacts to aquatic resources has focused on such approaches as relocation of stormwater management facilities upland, tightening of side slopes, and reduction of the road width profile.  The EPA and Corps believe that further avoidance and minimization may be possible on this proposed project.  We also believe that the County should examine the possibility of alignment shifts outside of existing road right-of-way and bridge/culvert designs that may result in substantial reductions of impacts to aquatic resources. 

 

    Compensatory mitigation is required to replace the unavoidable loss of wetland, stream, and/or other aquatic resource functions.  The Corps is responsible for determining the appropriate form and amount of compensatory mitigation required.  Methods of providing compensatory mitigation include aquatic resource restoration, establishment, enhancement, and in certain circumstances, preservation.  The County must perform an assessment of the functions of the impacted aquatic resources and submit a detailed mitigation plan.  The County should also work closely with the EPA, who in partnership with the Corps and MDE, is developing a registry of potential mitigation opportunities for the impacted watersheds.  Efforts could be directed at reducing the amount of impervious surfaces and improving overall stream health and water quality in the watersheds.

 

    Your application lacks a mitigation plan describing the existing aquatic resources affected by the proposed project and proposed concepts to replace the lost functions at specific sites in the watershed.  To date, we are aware of only one compensatory mitigation proposal that the County is negotiating to purchase (the Rhine Property) near the Billingsley Road crossing of Mattawoman Creek.  We require additional information on your proposal to mitigate for the unavoidable loss of aquatic resources resulting from your proposed project.

 

5.  Agency and Public Comments: 

 

5a. U.S. Environmental Protection Agency.  On September 15, 2008, the U.S. Environmental Protection Agency (EPA) responded to the public notice stating that the Mattawoman Creek Watershed and its component sub-watersheds comprise an area of outstanding environmental value and diversity of living resources (copy enclosed).  The EPA believes the CCC is likely to cause significant direct, indirect, and cumulative impacts to an area of great environmental value, diversity, and sensitivity.  In addition, the EPA states that the County reports do not identify cumulative impacts.  The EPA requests the Corps suspend permit processing until a more complete assessment of resources, impacts, alternatives, and mitigation can be performed.  This recommendation is based upon several factors including differing statements of purpose and need; direct, indirect, and cumulative impacts to aquatic and terrestrial resources; uncertain effects on groundwater supplies, drinking water supplies, and wetland base flows; and the lack of a full and complete compensatory mitigation plan. 

 

5b. Maryland Department of Natural Resources.   In a letter dated September 15, 2008, the Maryland Department of Natural Resources (MD DNR) has received very strong comments from multiple units advocating the need for a broader protection mechanism for the Mattawoman Creek system in anticipation for significant watershed development in the coming years.  The MD DNR noted that the creek possesses several important aquatic values such as   (1) extensive beds of submerged aquatic vegetation, (2) prime habitat for an important recreational bass fishery (and other gamefish), and, (3) spawning grounds for anadromous fish species that include River Herring (Alosa aestivalis), American Shad (Alosa sapidissima), Hickory Shad (Alosa mediocris), White Perch (Morone Americana), Yellow Perch (Perca flavescens) and Rockfish (Morone saxatilis).  In a 2008 assessment of the Mattawoman Creek, the Fisheries Service of the DNR supported the agency’s concerns for potential impacts to the Mattawoman Creek watershed emphasizing potential issues regarding cumulative habitat degradation from development.  The MD DNR suggests that increasing impervious surface percentages in a watershed degrades natural habitat, natural functions, and values of a stream. Their position is that stormwater management techniques have aimed to lessen the effects of impervious surfaces but typically do not fully mitigate them.  The letter states that the best way to protect the Mattawoman Creek habitat is a combination of water quality protections.  These included maintenance of significant forested buffers along all streams, minimizing the increase of impervious surfaces in the watershed, and managing stormwater runoff from existing and new development.  The MD DNR strongly recommends that the County demonstrate whether alternative transportation (such as mass transit) or feasible development patterns might serve as viable alternates to the proposed highway.

 

     The MD DNR also referenced concerns regarding direct impacts to a State listed plant species, the Potato Dandelion (Krigia dandelion), and the indirect impacts to a sensitive aquatic site called Cat Pond.  Moreover, the MD DNR has confirmed the report of Krigia dandelion within or close to the project alignment.  MD DNR recommends field surveys to identify the extent of the population and appropriate habitat, followed by analysis of potential avoidance and minimization measures.  We support MD DNR’s request to comply with incorporating measures to minimize impacts to the Krigia dandelion.

 

     The MD DNR recommends further documentation of potential transportation alternatives including potential mass transit.  In addition, the agency recommends maintenance of large forested buffers, minimization of impervious surfaces, managing runoff from existing and future development sites, and maintenance or improvement of the hydrologic conditions of Mattawoman Creek and it tributaries.  

 

5c. Conservation Groups.  The Chesapeake Bay Foundation and Mattawoman Watershed Society believe that the direct, indirect and cumulative impacts of induced growth will be greater than the County’s estimate.  To address these concerns, both the EPA and MD DNR suggested interagency partnerships with the County to develop watershed management with high goals, including perhaps the setting of regional development standards, watershed protection controls, or impervious surface caps to maintain watershed functions.  Any decision  to create an interagency partnership will be independent of our review of this project.

 

5d.  Public Concerns.  This office received numerous public comments in connection with your application.  The comments focused on issues referenced in previous sections including (1) direct, secondary, and cumulative adverse impacts to the Mattawoman Creek and Port Tobacco River, its tributaries, and wetlands, (2) conflicting statements of project purpose and need, (3) cumulative impacts from future connecting roads, water and sewer lines, (4) air pollution and noise impacts to adjacent residential communities, (5) the lack of consideration to road alternatives and mass transit options, (6) the loss of forest cover and forest interior dwelling bird habitat, (7) impacts to groundwater supplies, (8) impacts to Rare, Threatened, and Endangered (RTE) species, (9) future induced development traffic and congestion on local roads, (10) Carbon Dioxide emissions and global warming, and, (11) vague mitigation strategies.  Copies of all correspondence including the transcript from the Public Hearing are included for your review.

           

     In summary, we believe that the County must further clarify this project by submitting additional information on purpose and need, alternatives, indirect and cumulative effects, traffic effects and mitigation.  This information is required to complete our public interest review and determine compliance with the Clean Water Act Section 404(b)(1) Guidelines.

     Your responses to aforementioned comments/issues must be submitted to this office within 30 days of the date of this letter.  Copies of all letters received by us in response to the public notice are enclosed.  If you have any questions concerning this matter, please contact me at (410) 962-4500 or Mr. Steven S. Harman of this office at (410) 962-6082.

 

                                                              Sincerely,

 

 

 

 

                                                              William P. Seib

                                                              Chief, Maryland Section Southern

                                                 

Enclosures

 

       

 

 

HARMAN/CENAB-OP-RMS/mq/24500

LORENZ/CENAB-OC

SEIB/CENAB-OP-RMS