01 April 2013

Regulatory Compliance Vexing for Saddle Creek CSO! Project

Compliance with federal regulations has been problematic for department of Public works officials in recent days. Different items of requiring immediate attention occurred within a day-or-two period for city of Omaha officials managing the Saddle Creek project along Center street.

It apparently started with an observation of a pair of red-tailed hawks at a nest just south of an area where tree clearing had occurred mid-week, according to people involved with the project.

There is a federal stipulation that nests of species associated with the Migratory Bird Treaty Act cannot be disturbed or destroyed.

Once a pair of hawks were noted, nearby a nest, the project site was shut down, according to details provided by city officials during a site visit on Friday afternoon, 29 March.

They thought that since the birds were "nesting" there could be no further disturbance. The project manager said calls were made to the Nebraska office of the Fish and Wildlife Service, but no one answered. So there was resolution to the situation. We "did not know what to do," he said. "Nobody knew what to follow."

So, project activity at the site was suspended.

This was Thursday.

On Friday morning a personal visit was made to the site on the east side of Westlawn Cemetery, henceforth designated as Westlawn Creek.

There were several typical birds, including an appreciated Brown Creeper, and misplaced Black-capped Chickadees. There were no Red-tailed Hawks seen in the immediate area or even the general vicinity.

Black-capped Chickadee on former habitat.

Abandoned Red-tailed Hawk nest.

What was most obvious was a lack of sediment curtains along earthen slopes adjacent to the flowing waters of the creek. Nothing was present to prevent erosional deposition from these slopes into the creek, especially perhaps during the rainfall expected during the pending night.

Early on Friday afternoon, a phone call was made to the Army Corps of Engineers, the federal agency which issued the 404 permit. The regulatory permit for this particular project, as provided by the Corps of Engineers, required that sediment curtains be suitably placed, according to an officials at the Wehrspan regulatory office, that described the particular conditions for this permit.

This was the situation during another visit to the site on Friday afternoon. Public Works department men were present, including a sediment specialist. We walked the site and discussed the situation. He said the sediment curtains would be still be put in place during the day. It was about 3 p.m.

A project official indicated more than once, that sediment curtains would be yet put in place during the afternoon. When the Corps contacted a project official, the person said the same thing, according to an email subsequently received from the Corps of Engineers staff person responsible for this project.

During the afternoon visit, a couple of other Public Works guys arrived. The four of us did a similar sort of jaunt along the barren ground on the east side of Westlawn Creek. Particular attention was given to the hawk nest, south of the boundary of woodland clearing.

View of area cleared of trees, with them piled in background.

Perspective along Woodlawn Creek on Friday.

The land was barren, and there were no hawks, and very few other sorts of birds. Though a hawk, or two, had been seen near the nest a day or two earlier, as indicated by a photograph shown by someone from Public works, my prognosis was that the nest had been abandoned. No eggs had been laid, and there were certainly no young birds present. There was no need to delay, as indicated in another call of my perspective conveyed to Public Works. The northern portion of the site could have been worked, because there were significant visual barriers, which would limit the disturbance factor, for places at the southern portion of the project site.

Because of suspending work activities due to the potential of nesting activities associated with a protected species, the sediment curtains were not immediately put in place.

The sediment curtains were installed Friday evening, as an email notification was provided to the Corps of Engineers about 8:30 p.m.