November 26, 2018

Proposal for Union Pacific Railroad Communal Track to Serve Promontory Point Industries Lacks Necessary Details and Raises Red Flags

Proposal for Union Pacific Railroad Communal Track to Serve Promontory Point Industries Lacks Necessary Details and Raises Red Flags

“Pay no attention to that man behind the curtain.”

The Wizard of Oz

On August 7th, 2018, the Union Pacific Railroad (Union Pacific) submitted partial information to the Army Corps of Engineers (the Corps) for a Pre-application Meeting on August 21st.  The meeting was intended to support Union Pacific’s request that the Corps authorize a Letter of Permission (LOP) for proposed “minor impacts” – less than one acre - to aquatic resources of the U.S. under Section 404 of the Clean Water Act, and/or to navigable waters under Section 10 of the Rivers and Harbors Act.  These impacts would come from the construction of a communal track (industrial siding) at the Lakeside Subdivision on the Promontory Peninsula to support industry rail service on Promontory Point in Box Elder County, Utah. The estimated time to complete the project is 3 to 4 months.

For obvious reasons, whenever impacts to Great Salt Lake wetlands and waters are being considered, FRIENDS wants to know more about the issue. The Great Salt Lake Ecosystem is hemispherically important, ecological critical, and economically significant. Any proposals that could jeopardize the integrity of the system are always of great concern. Because the LOP process is tailored for small projects with “minor impacts” it’s streamlined. The Corps isn’t required to issue a public notice for public participation. Instead federal and state agencies are involved on behalf of the public interest. Under these circumstances, the applicant is required to provide a complete proposal two weeks in advance of the pre-application meeting to give the agencies adequate time to review it. Right out of the gate Union Pacific failed to meet this requirement. For starters, the proposal failed to include a complete description of the proposed activity including the purpose and need of the activity.

On August 10th FRIENDS filed an Expedited Freedom of Information Act Request with the Corps of Engineers. We wanted to review the pre-application information that would be discussed. We also requested a list of the invitees because we wanted to be sure that the Utah Division of Forestry, Fire and State Lands (which has jurisdictional management responsibility for Great Salt Lake), the Division of Water Quality, the Division of Waste Management and Radiation Control, and a representative from the Great Salt Lake Advisory Council (which advises the governor on Great Salt Lake issues) were also included. Except for the Division of Water Quality, the others were not on the list until we suggested them.

Our primary concerns with the proposal focus on the rationale and the process for authorization. What we saw in the pre-application information did not reflect the true scope of the proposed project because given where it is and its adjacency to Great Salt Lake, there’s no question that it would exceed the limits of “minor impacts.” This means that it doesn’t fit with the process that’s necessary for the Corps to issue a Letter of Permission. It doesn’t comply with meeting all of the criteria identified in an August 1, 2001 U.S. Army Corps of Engineers Public Notice Implementation of Minor Impact Letter of Permission (LOP) Procedures in Utah, and with EPA’s 404(b)(1) Guidelines.

The other concern about it comes from our work on tracking the Promontory Point Resources, LLC (PPR) landfill on Promontory Peninsula (see Spring 2018 newsletter). In its application for a Class V permit that would allow it to take out of state waste, PPR stated that a railroad spur to move inventory onto the site would be needed. And although on February 16, 2018, PPR withdrew its Class V permit application, at that time under review by the Division of Waste Management and Radiation Control, rail access to that facility might make taking another run at it more attractive even though other obstacles still remain. Among those obstacles is a failing grade on its Needs Assessment Report which is used to determine whether another Class V landfill is even needed in Utah. With over 1000 years storage capacity among the existing facilities, that base is well covered. However, through the grapevine we have heard that an attempt to legislatively eliminate this evaluative criterion from the Administrative Rule puts a finer point on Union Pacific’s proposal.

You may recall that in response to PPR’s Class V application the Division was presented with a White Paper titled Great Salt Lake as an Ecologically Significant Natural Area by the Great Salt Lake Institute at Westminster College. This reference tool is intended to help enlighten the Division about the kinds of cumulative impacts this operation could have on the Lake and how much is at stake with this kind of adjacent land use.

So what’s there and what’s missing in the proposal?

The pre-application proposal is described as a “small construction activity” of less than 5 acres in scope. The construction of the communal track would consist of a new 1.2 mi. long parallel track with a western and eastern terminus located 115 ft. north of the existing mainline track. The mainline track we’re talking about here is the 21 mi. Union Pacific causeway that bisects Great Salt Lake and for about 5 miles runs around the tip of Promontory Peninsula where this activity would occur. Since the best design and exact location of the construction was based on accommodating the proposed rail car length, turning radius, and access to the industrial spurs referenced in the text and diagrams, it doesn’t seem likely that even this stepsister’s foot is going to fit into Cinderella’s shoe for a LOP authorization.

A July 27th aquatic resources delineation report identifies general cover types as playa and saline wet meadows. The proposal suggests that permanent wetland impacts to saline wet meadows from fill to construct the communal track would be less than one acre, or as indicated in Table 1. Permanent Wetland Impacts – a total of 0.994 acres. This is only 0.006 acres below the highest threshold for a Letter of Permission. That’s 260 square feet (how big is your livingroom?) Again, under the circumstances of where this activity would be happening, it’s inconceivable to think that secondary and cumulative impacts to wetlands and playas would not occur.

The proposal indicates that the design of the track is such that it avoids impacts to the playa part of the shoreline of the Lake. And although it claims that no hydrological connections will be impacted by the project, no proof other than surface observations is provided. We know that ample research exists that confirms that areas and wetlands around the Great Salt Lake have extensive hydrological connections. Much more is needed to show that there would be no impacts to springs, aquatic habitat, migratory bird breeding areas, threatened or endangered species, or the management of water flows that are a part of the interface of the landscape of Promontory and the Lake.

It’s stated that reseeding of peripheral vegetation would be addressed if necessary. And that best management practices would help avoid and minimize impacts. Mitigation between 1:1 and 2:1 to compensate for permanent wetland impacts would come from the purchase of saline wet meadow credits from the Machine Lake mitigation bank. However, the mitigation bank is meant to replace “isolated wetlands of minimal or degraded use” which these wetlands are neither. They are a part of a large and vital ecosystem. 

Soil erosion, sediment controls and permits for storm water discharges would be covered by Section 402 of the Clean Water Act and the Storm water Pollution Prevention Plan, although Union Pacific may apply for an “erosivity construction waiver” because of the “abbreviated” nature of the construction. A 401 Certification through the Division of Water Quality would also be required.

After careful analysis of the Implementation of Minor Impact Letter of Permission (LOP) Procedures in Utah, and EPA’s 404(b)(1) Guidelines our conclusion is that Union Pacific has failed to identify whether this activity qualifies as a “single and complete activity”, and is trying to segment out the cumulative impacts of this project by focusing only on the construction of the  “communal track”. This is intended to keep the designated impacts under the 1-acre threshold for a Letter of Permission, while ignoring what they’ve clearly designated as the “future rail connections.” By designating those connections as “future work by others” they appear to be trying to play a bit of a shell game with the Corps in order to avoid having to run the gauntlet for an Individual Permit authorization.

Forgive me for this exhaustive description and analysis of this proposal. Ironically, I could go on, but it’s important that we all recognize how much could go wrong and what this means to the Lake.

FRIENDS believes that this proposal should not be authorized under a Letter of Permission by the U.S. Army Corps of Engineers. This proposal and the Great Salt Lake Ecosystem are worthy of the rigor, the scrutiny, and the public participation that an Individual Permit process would require.

In saline,

Lynn de Freitas, Executive Director