Corps explains permit decision
May 14, 2005
Security issues were the deciding factor in the Army Corps of Engineers’ decision to grant a wetlands permit for the planned Routt County Justice Center.
After a year-and-a-half long process in which the Army Corps twice decided the permit would be denied, regulations recently issued by Homeland Security propelled an approval.
The regulations, which created new setback requirements for federally leased buildings, were what tipped the scales in the county’s favor, said Tony Curtis, Frisco Regulatory Office chief for the Army Corps.
Property the county purchased west of downtown, next to the county jail, could meet the setback requirements but the downtown site — which was a less environmentally damaging alternative — could not, Curtis said. The Army Corps decided that if the federal government couldn’t build downtown, it couldn’t require the county to do so.
Now, with a permit to fill 1.4 acres of wetlands, Routt County commissioners can move forward with building the $15 million, 52,000-square-foot facility.
In a recently released “decision document,” the Army Corps listed five other reasons why the downtown site would not work:
The downtown site does not account for project expansion needs.
The downtown site could affect the Butcherknife Creek floodway.
The downtown site would require additional construction or leasing because the old Visiting Nurse Association building that houses some county offices would be demolished.
The cost to build downtown would be about 11 percent more than building west.
The aquatic environment to be impacted at the west site is low-to-medium quality.
The Army Corps had information on those five issues in December when it said the permit would be denied without new information. On its own, any one of the items probably would not have been enough to make the site impracticable, Curtis said.
“Each of those are listed as a whole that gives us relatively strong justification to issue the permit as we have,” Curtis said.
While county officials work to get details in place to begin construction of the justice center, opponents of the western site are questioning the final permit approval. Chief among those opponents is the Friends of the Justice Center, a group formed to lobby to have the new justice center built downtown.
To Townsend Anderson, the spokesman for the Friends group, the Homeland Security regulations should not have been reason for the Army Corps to reverse what was going to be a denial.
“We really have to weigh what’s happened and why it happened,” Anderson said. “I think that how this all ended up is terribly unfortunate. To hang your hat on federal regulations that don’t apply … to simply reach out and cherry-pick pieces of those regulations and apply them — that’s terrible, terrible decision-making.”
But to Routt County Manager Tom Sullivan, the county had a good, viable permit application from the very beginning. What’s hard for Sullivan to understand is why it took so long to get the permit approved.
An impracticable site
The county originally planned to build downtown, adjacent to the current courthouse, and even went so far as to design a building and purchase lots, some through condemnation. But voters in 2002 rejected a mill levy to fund the construction, so the county went back to the drawing board, and ended up with the west site.
The space and costs constraints associated with building downtown — the issues noted in the Army Corps’ decision document — have been part of the discussion since the county first decided to build west. Information on all but the security setbacks was available from the time the permit first was submitted. The county’s architect brought attention to the new Homeland Security regulations, Sullivan said.
The new setback regulations from the Office of Homeland Security called “Security Standards for Leased Space” were released in September 2004. The standards require a minimum setback of 20 feet for federal buildings similar in size and type to the planned courthouse.
The downtown site provides a setback of 20 feet or more on three sides, but only four feet along the alleyway.
“We couldn’t build a building on that site and comply with that regulation, so we couldn’t hold the county to do the same,” Curtis said.
Anderson, however, said he thinks it’s ludicrous to say a building with the proper setbacks couldn’t be designed to fit the site. He questioned why the federal setback regulations were even used. He said the regulations are outside the purview of the Army Corps and irrelevant to non-federal buildings.
He also questioned how the Army Corps could consider only one part of Homeland Security regulations, saying that it would cost millions for the county to build a justice center that complied with all of the new federal regulations.
Curtis said that Col. Ronald Light, district engineer for the Army Corps who made the final decision on the permit, expressed concern with setbacks and the alleyway when he visited the site in March. Seucurity is one of Light’s areas of expertise, Curtis said.
Nonetheless, Curtis acknowledged that security typically doesn not play a key role in a decision.
“This is not common that we would have a security issue potentially dictating a decision,” Curtis said. “Personally, I have not had any experience like that. This would be the first one.”
Another factor in the approval, Curtis said, relates to the Army Corps’ “flexibility rule.” The rule is administrative rather than a formal regulation. It states that if the impacts to the aquatic environment are relatively minimal, the wetlands are of lower quality, and the project ultimately could protect higher quality wetlands, the project should be considered for approval.
In this case, the county will fill 1.4 acres of lower-grade wetland and will end up enhancing and creating almost 4 acres of wetlands that lead into the Yampa River on site or adjacent to the county’s property.
Those mitigation efforts mean that a whole small wetlands system could end up being protected as a result of the county’s project, Curtis said.
Disputing the county
Also in its decision document, the Army Corps dismisses several of the county’s arguments for why the building could not be downtown.
For instance, one major cost difference between the two sites would have been a $3 million parking garage. The county said the garage was necessary, but the Steamboat Springs City Council said it was not necessary.
The Army Corps ultimately agreed with the city and said a parking garage was not needed, according to the decision document. That still left a price difference of 11 percent between the sites.
The county also argued the downtown courthouse would be difficult to protect from terrorism. The county’s consultant backed up that position, saying that such protection would be costly. The Army Corps’ decision document points out that security was not an issue when the county asked voters for the mill levy increase.
The county also said building adjacent to the jail would make it possible to build an underground tunnel to transport prisoners to the courts. The Army Corps decision states the current method of transporting prisoners from the jail to the courthouse in vehicles is adequate, but that a tunnel would save money and be safer.
Re-examining the process
Anderson thinks the county has done everything possible to try to discredit its original plans for building downtown. The Army Corps helped by “backfilling” to justify the reversal of their preliminary decision to deny, he said.
“What happened between September and May certainly indicates that the Corps was giving the county every opportunity to reverse a decision,” he said.
The public was left out of the Army Corps decision-making process, he said.
He questioned whether the Army Corps was pressured to approve the decision, adding that he feels that the Army Corps has a new agenda for issuing wetlands permits.
Anderson also said he couldn’t say what the Friends of the Justice Center’s next steps would be.
Curtis said the county has been open with information throughout the process, as indicated by how the Friends of the Justice Center generally knew everything the county did through the process.
The process for the permit was as open to the public as most projects the Army Corps considers, Curtis said.
Curtis emphasized that he had free rein to make the decision and did not feel pressure to approve or deny the permit. Because the project was controversial, the decision went up the chain of Army Corps officials and was defended internally at every step.
Curtis said the decision was a tough one and required weighing every aspect of the issue while dealing with emotions from the county and opposition.
Much of those emotions, he said, did not relate to the issue of filling wetlands.
“This wasn’t a Sierra Club effort to protect the last remaining natural wetlands system in Steamboat,” Curtis said. “I have a sense that a lot of it was dealing with land planning, which we, the Corps, don’t get involved with.”
— To reach Susan Cunningham, call 871-4203 or e-mail email@example.com