West Davis Legacy Highway planners hoping to leapfrog local officials of the Army Corps of Engineers may find themselves pinned to a cliff like Wil E. Coyote.
From the beginning, the Utah Department of Transportation has pretty much planned on having to take its fight for the Legacy Highway, route C, to Washington, D.C. Once there, UDOT officials would appeal to the national leaders of the Corps and congressional leaders.Even if UDOT could somehow convince the upper echelon of the Corps leadership to approve the 13-mile road - an unlikely accomplishment - that decision would almost surely fall short of acceptance by the Environmental Protection Agency (EPA).
Based on the 1972 Clean Water Act, any construction needs to follow a route which is the least damaging to wetland areas. Additionally, because of a 1990 agreement between the EPA and the Corps, future mitigation and protection of wetlands cannot be used when arguing for the least damaging alternative.
"It is not easy to replace natural systems with constructed systems," said Bob Mairley, EPA life scientist in Denver. "The greatest way of maintaining natural resources is avoiding them."
The agreement lays out a specific sequence that both agencies use to determine impact. First, they determine if any routes exist which won't do any wetlands damage. In the case of Legacy, however, all three proposed routes did at least some damage, said Art Champ, chief of the regulatory branch for the Sacramento District of the Corps.
When no route avoids the wetlands, then the damage factor of each is determined using three criteria: cost, technology and logistics. Because all three routes of Legacy are very close, Champ said, these three criteria had very little diversity.
So, the decision to informally reject alternative C was based almost entirely on the number of wetland acres impacted. The final score: alternative C 160 acres, alternative A 115 acres.
"Based on the current information, (UDOT) will have difficulty showing compliance with the regulations," Champ said.
The final decision has not been made, primarily because UDOT has not formally applied for a permit to build the road. That, Champ said, would most likely happen in about a month. But unless some significant new information is provided, a change of heart is not likely.
Champ also doubted that any appeal to his superiors would make a difference. Above him are three more levels of power: the South Pacific Division; the national headquarters; and the assistant deputy secretary of the Army. Champ has briefed the directors of both the South Pacific Division and the national headquarters, and both have agreed with the rejection.
One final rally opportunity may exist for UDOT, however. Unlike the federal agencies, congressional leaders in Utah strongly support the proposed route.
"There is a lot of goal displacement here," said Steve Petersen, state director for Rep. Jim Hansen, R-Utah. "If (the Corps) wants to protect wetlands, they need to find a way to approve this route."
Getting Congress involved could have a potentially serious impact on any Corps decision, Peterson said, because a number of new options to gain approval would exist. First, Hansen, who represents Davis County, would sit down with the Corps and the EPA leaders in Washington, D.C.
"These bureaucrats have an amazing ability to change their tune when congressman get involved," Petersen said.
If that fails, legislation to approve the road could occur, although that may not happen for two or three years. If Congress did approve the road, very little could be done to stop it.
"This is another case of somebody from outside our area trying to dictate how we will live along the Wasatch Front," Petersen said. "We're hoping common sense will prevail."