“We can only do what we can do with what we can do.”
- Kathleen Anderson, Regulatory Assistant, U.S. Army Corps of Engineers
On November 30, 2012, the Union Pacific Railroad must submit a “final compensatory mitigation and monitoring plan” to the U.S. Army Corps of Engineers for approval. This plan is a necessary component of Union Pacific’s work to repair the railroad causeway that crosses Great Salt Lake. The plan is part of the terms and conditions as defined by the Corps in its authorization of a Nationwide permit (NWP-14) issued on August 29, 2012.
More on this later, but first a little background -
The railroad has been seeking a Nationwide permit since 2011 because the West and East culverts in the causeway have had a history of reoccurring cracks. Concerned that this could be cause for the interruption of train traffic across the causeway or -- even worse – a derailment, Union Pacific was anticipating a fairly streamlined approval process with a favorable decision by the Corps to proceed. In place of the culverts, the railroad was proposing to build a 150’ long concrete-pile supported bridge on the western end of the causeway - known as the Rambo alignment - where the lakebed is more stable. Theoretically, this bridge would maintain the flows and salinity exchange between the North and South Arms of Great Salt Lake that the culverts currently provide.
Confident that authorization would be granted, Union Pacific was anticipating that the construction of the bridge would take place from June 2011 to September 2011 - a fairly ambitious timeline, to say the least.
FRIENDS has been tracking this issue since February 2011, when Union Pacific first submitted a preconstruction notification (PCN) to the Corps. This PCN was part of a pre-application process for a Nationwide permit. A number of factors must be considered for a project to qualify for a Nationwide permit. A preconstruction notice is required. Total permanent impacts must be under ½ acre with only minimal individual and cumulative adverse effects on the aquatic environment. The Corps must then review the project proposal to ensure that the adverse environmental impacts are minimal, and that there is no significant change to the hydrology of the receiving water body. Finally, the Corps must determine that mitigation for those impacts is appropriate under Special Conditions which mandate specific environmental requirements in order to minimize impacts under section 404 of the Clean Water Act.
If the impacts cannot be minimized, or if the project is contrary to the public interest, it may not be able to proceed under a Nationwide permit and would thus require either a regional General permit or Standard Individual permit. This would expand the process to include the development of an Environmental Impact Statement with various alternatives under NEPA (National Environmental Policy Act) based on the purpose and need of the project, and provide opportunities for the public to comment. It would also require a 401 Certification from the Utah Division of Water Quality to guarantee that Utah waters are protected from impairment. In other words, it would provide the opportunity for a full public process.
Although a Nationwide permit does not require external agency coordination or public comment, the Corps responsibly hosted a series of meetings and phone conferences with state and federal agencies during this pre-application process. They did so again in July 2011 when the railroad submitted its formal application. In both cases, the goal was to identify any major concerns with the project. All these state and federal agencies have some form of jurisdictional and stewardship responsibilities for Great Salt Lake, including environmental protection, management of our sovereign lands, wildlife resources, water quality, and other beneficial uses of the Lake. The U.S. Geological Survey Utah Water Science Center, the Great Salt Lake Advisory Council, the Great Salt Lake Technical Advisory Group, mineral evaporation operations, the brine shrimp industry, and FRIENDS were also involved.
After careful scrutiny of the proposal and in formal written comments to the Corps, the consensus of opinion was that there was insufficient analysis of the bridge design and location, and a general lack of confidence in the modeling Union Pacific used to predict the bi-directional flow of salts from north to south once the culverts were closed and the bridge constructed. The proposal also raised concerns about impacts to migratory waterfowl, impacts to mineral extraction industries, the potential to increase the amount of methylmercury in the system, unknown effects on the brine shrimp, and whether a Nationwide permit was the appropriate permitting option.
It is also unclear whether or not Union Pacific actually has an easement to build the bridge. According to the Division of Forestry, Fire and State Lands, which has jurisdictional responsibility for managing Great Salt Lake, Union Pacific is unable to provide documentation that verifies a right to an easement for the Rambo section of the causeway where the bridge would be located. Until this issue is resolved, the railroad does not have permission to build the bridge on sovereign lands. On October 16, 2012 the Division had still not been contacted by Union Pacific.
Because the bridge design will have a significant influence on the ecology of the Lake, it is critical that the potential effects of any new openings, or any closure of existing openings in the railroad causeway be simulated in a coherent manner. The prevailing perspective from the agencies and other Great Salt Lake stakeholders is that the best tool for the job is the Salt Balance Model developed by the U.S. Geological Survey Utah Water Science Center. However, this model hasn’t been updated since the report was published in 2000. Although the cost of updating the model is significant, the cost of constructing a bridge that proves to be detrimental to this hemispherically and economically important ecosystem is much, much higher.
Our position has always been that a train derailment because of structural failure of the culverts would be tragic and should be avoided. However, it is important to remember that we have a divided Lake today because the railroad causeway has made it so. And although the railroad would argue that the culverts were never intended to provide salinity exchange between Gunnison and Gilbert Bays, when they weren’t clogged with detritus from the Lake, they did in fact facilitate some exchange. This is a good thing because if you think about it –in a 21 mile rock-fill causeway that is essentially impermeable –the 3 existing openings (2 culverts and a breach) provide only about 330’ of potential bi-directional flow. If the USGS Salt Balance Model can deliver important insight for building the best bridge compared with a single calculation offered up by the railroad, then it would be prudent to update the model.
In a March 15, 2012, letter to Union Pacific responding to the July 2011 application for a Nationwide permit, the Corps exercised its discretionary authority to require that the application be processed for authorization under a Standard Individual Permit. It also recommended that the railroad consider updating the USGS Salt Balance Model while continuing to develop options that will temporarily stabilize the culverts. This recommended course of action was countered when Union Pacific requested a meeting on August 1, 2012 with the District Regulatory Division in Sacramento to discuss reconsideration of its Nationwide permit proposal and Preconstruction Notification.
On August 16th Union Pacific sent a letter to the meeting participants confirming the key points that were discussed. In the letter, the railroad asserts that its responsibilities and interests are limited to keeping the trains moving across the causeway. It contends that updating the Salt Balance Model would require a costly adaptive management approach for constructing the bridge. And it believes that the “best available current information” would suffice. It also argues that since the proposed bridge is not necessary to facilitate train operations on the causeway, the only reason it is willing to construct it is to accommodate “other interests.”
In partial response to that meeting, the Corps authorized a Nationwide permit (NWP-14) on August 29, 2012. This permit was authorized before the Final Compensatory Mitigation and Monitoring Plan is approved so that Union Pacific can move forward with an emergency closure of the West culvert of the causeway because of imminent structural failure. To compensate for this closure, Union Pacific is required to construct a 180’ long concrete pile-supported bridge on the west end of the existing causeway. It must also fulfill special conditions prescribed by the Corps to address appropriate monitoring tools and adaptive management measures to minimize impacts on the circulation of salts between the North and South Arms of Great Salt Lake.
Sadly, this Nationwide permit authorization directly contradicts the Corps’ statement of discretionary authority that was expressed in its March 15, 2012 letter to Union Pacific.
So where are we now?
When Union Pacific submits its Plan to the Corps it is likely that the state and federal agencies will have another opportunity to provide input – not that it seems to matter very much. And it will be interesting to see how the easement issue is resolved. Will Forestry, Fire and State Lands hold the line? Throughout this entire ordeal Union Pacific has taken a condescending and myopic approach to making any concessions that could benefit the Lake even though it is responsible for the impacts to the Public Trust that exist today. I am reminded of the signature quote from the 1967 Paul Newman film Cool Hand Luke –“What we’ve got here is failure to communicate.” Let’s hope in this case there’s a better outcome.
What you can do:
More information about this issue, including correspondence obtained through a Freedom of Information Act request (FOIA) filed September 17, 2012 can be found at www.fogsl.org. Stay tuned!