In addition to these prepared comments, my statement was prefaced by saying that the Cherry County Comprehensive Development Plan needs to be considered when the conditional use permit is evaluated. Also while presenting this statement some short, additional and supportive comments were made for emphasis. There were also some slight revisions in grammar.
After contacting the district manager of the regulatory office of the Army Corps of Engineers, the following information is pertinent to the conditional use permit application.
“The Corps, not the applicant, determines jurisdiction” on projects submitted to the Corps for review. Mr. Moeschen even went so far as to advise that the “project proponent talk to us before any filling occurs”
For a jurisdictional determine, the Corps generally looks for a “connection to a creek or channel that connects to a river that flows into the Missouri River.”
“If the wetlands are not waters of the United States, the Nebraska Department of Environmental Quality may have authority because the wetland is a water of the State.”
The Environmental Protection Agency has an “oversight role and generally handles enforcement action when someone does work in a WOUS that is regulated. EPA also reviews jurisdictional determinations completed by the Corps.”
The issues with the conditional use permit include:
- Although the applicant is required to identify wetlands, the provision does not indicate any further action is required. Why is a determination made if there is no “indicated reason” to do so.
- The application has not provided documentary evidence that there is no surface water connection to the nearby channel of McCann creek, which connects to the Niobrara River and then the Missouri River. This analysis should include details on various precipitation events which might create runoff when there is a flood or multiple-inch rainfall event.
- There is no indication to indicate whether the applicant has contacted the Nebraska Department of Environmental Quality to determine if they have any jurisdiction.
Implementation Strategies for Policy 4 in the Cherry County Comprehensive Development Plan indicate:
Wetlands Item 2: “All developments potentially affecting wetlands must comply with state and federal wetlands protection programs” with the Section 404 program mentioned.
- The conditional use permit does not indicate any communication with either state or federal authorities, nor has there been any written documentation available to indicate they will contact either mentioned agency.
Item 3: “Development shall leave a naturally vegetative buffer surrounding all wetlands. Roads and utility lines may cross there buffers, but the project’s site plan should minimize such crossings.”
- The conditional use permit application does not indicate how vegetative buffers around the numerous wetlands will be maintained, nor how construction in any wetlands will be minimized.
Since neither of these two items have been addressed in a written manner by the applicant, BSH Kilgore has not fulfilled either of these requirement as indicated in the county comprehensive development plan.
Runoff and Erosion Control: “A runoff and erosion control plan shall be implemented in all developments.”
There is no runoff plan in the development application, and at least two requirements in the development plan seem to be applicable. Land Use Compatibility
“Cherry county will ensure that development is compatible with neighboring uses,” including “the impact on scenic views from existing uses.” How is this being accomplished?
Compatible: “Capable of existing or functioning well with another or others”