I am not sure about all of the particulars of property lines associated with the proposed 112 reroute, nor have I ever seen the proposed alignment of the 112 reroute, but I do know that the majority of the property near Clabber Creek between Highway 112 and Dean Solomon Road is existing and/or former wetland prairie. The distance between 112 and Dean Solomon is approximately 3,300 linear feet.
One of our WSIP sewer lines extends along the north side of Clabber Creek in this area and borders the southern edge of the Park West property. Prairies/wetlands are not the only concerns/considerations in the decision-making process for the 112 reroute. There are other matters to think about, that may create potential liabilities for the City when entering a "cost-share" agreement for this project, as described below:
1) There are two spring runs in the vicinity of (or perhaps within) the Park West boundaries. One is approximately 975 linear feet west of 112, and the other is approximately 2,325 linear feet west of 112. These two spring runs function ecologically much the same as the Wilson Springs runs, and provide seasonal habitat for the Arkansas darter, as shown by a survey conducted by USFWS several years ago. Impacts to darter habitat have been controversial for the City in the past. Will the proposed 112 reroute have a permanent adverse impact to darter habitat and stir this pot again?
For those who are not aware, the Arkansas darter (Etheostoma cragini) is a small fish (2 to 3 inches long) that inhabits the upper reaches of Clabber Creek. It has been designated as an Arkansas Species of Concern by the Arkansas Natural Heritage Commission, listed as a fish of Special Concern by the American Fisheries Society and is a Candidate Species for federal listing as endangered by the US Fish and Wildlife Service.
One of our sewer lines crossed these two spring runs and one of the wetlands. I wrote the specifications whereby the contractor was required to cross these spring runs during June through December when we knew the darter would not be there. During this time of the year, the darter stays within the immediate vicinity of the springs, including Wilson Springs, and the springs on the north side of Clabber Creek. Studies have shown that it migrates down the spring runs at times between January and May to spawn in Clabber Creek. Has the 112 reroute considered such self-imposed seasonal construction periods as we did on the WSIP, and is this practicable for a highway project?
2) There are jurisdictional wetlands throughout the area between 112 and Dean Solomon, including the Park West property. In fact, I have seen the 404 permit that requires compensatory wetland mitigation for the Park West development. For sewer lines, we do the design whereby wetlands are restored and put back to pre-construction conditions. This is achievable because the sewer lines are underground. This is not so easy to do for permanent surface structures, such as a highway.
Obviously, a highway project that spans jurisdictional wetlands will necessitate wetland compensatory mitigation. Will the 112 reroute involve permanent alterations to wetlands? If so, where will the mitigation site be located? Who will pay for the design, construction, and long-term monitoring of the wetland mitigation and the 404 permit application process? With the City paying for a portion of the project, the City will likely be required to be a co-permittee with Park West for the 404 permit issued by the Corps. If the mitigation does not comply with 404 permit requirements, is the City aware that they may be liable for enforcement action/monitory penalties and/or corrective actions? What controls will the City have during construction to assure 404 permit requirements will be met?
3) The ADEQ stormwater permit for construction activities (ARR150000) will be required for the 112 reroute. Due to changes in Reg 6 three years ago, ADEQ no longer allows contractors to be stormwater permittees. It is ADEQ's policy that the party(ies) with ultimate financial control of a regulated project shall be the permittee(s) who are responsible for compliance. If ADEQ makes the City a joint stormwater permittee with Park West, how much construction management control will the City have? Has the City explored the possibility that as a co-permittee they may be liable for enforcement action/monitory penalties and/or corrective actions if the project is not managed to be in compliance with stormwater permit requirements?
The involvement of a third party (i.e. contractor) further complicates matters. Speaking from experience, it is always a challenge to make the contractor do what they are supposed to do to keep the permittee from having violations. If this is not addressed from the beginning within the contract documents, then the permittee has little leverage to make the contractor follow regulatory requirements. When the permittee tries to do so after the fact, there will always be change orders that add to the cost of the project.
What control will the City have over the environmental specification language within the contract documents to hold the contractor's feet to the fire for this type of work within such an environmentally sensitive area?
It is always more efficient and cost-effective to avoid going into the "damage control mode" by staying in the "problem prevention mode".
Just some food for thought that I wanted to bring to the table.........
Bruce Shackleford, M.S., REM, REPA
President, Environmental Consulting Operations, Inc.
17724 I-30, Suite 5A
Benton, Arkansas 72019
"Integrating ECOnomy and ECOlogy, since 1990"