Paradise Ridge Defense Coalition
- January 19, 2023 Report by Nate Hough-Snee, Ph.D., PWS and William Kleindl, Ph.D., PWS
- March 31, 2023: ITD to Army Corps,
US 95 Thorn Creek to Moscow, Official ITD Request for Preliminary Jurisdictional
Determination; Official ITD Request for Section 404 Permit, Sites 1, 5, 6, 10, 11, 12, 13 [2 pages]
- April 11, 2023: Army Corps to ITD,
KingSlack Letter to ITD 11 APR 2023 [4 pages]
- Court filings and public records — Case 1:22-cv-00122
Hello Paradise Ridge Defenders!
giant Palouse earthworm found on Paradise Ridge
The Army Corps of Engineers agrees with PRDC and its wetlands experts that at least one wetland was over the threshold size for a nationwide permit under the Clean Water Act,
and is suspending or revoking the permits it granted the Idaho Transportation Department under the Clean Water Act for
construction in the wetlands areas of the U.S. 95 Thorn Creek to Moscow highway realignment and expansion project!
This was a very expensive phase of our work, and we racked up some debts.
Please generously donate (or use form below, or mail us a check) toward this expensive phase of current PRDC litigation seeking protection of native Palouse Prairie and essential Paradise Ridge wetlands from Highway 95 expansion!
Your gracious contribution as a concerned citizen helps cover the $20,000 costs of the work of attorneys, wetland scientists, and a surveyor, who, along with you, are assisting PRDC to win this federal case.
You can review the legal proceedings here.
September 27, 2022
September 14, 2022. PRDC legal team to Gary Luke, ITD Deputy Attorney General
September 14, 2022
VIA E-MAIL TO gary.luke@itd.idaho.gov
Gary D. Luke
Deputy Attorney General
Idaho Transportation Department
3311 West State Street
P.O. Box 7129
Boise, Idaho 83707-1129
Re: ITD Proceeds with Construction During Litigation at Its Own Risk
Dear Gary:
As we discussed in our phone call today, our client Paradise Ridge Defense Coalition (PRDC)
remains concerned about ITD’s ongoing work on the US-95 Thorn Creek Road to Moscow
highway project. Our concerns are heightened in light of ITD’s continuation of construction work
on the project even after the USACE suspended authorization for every crossing site in the project.
As we have explained previously, ITD proceeds with construction during litigation at its own risk.
All the more so, now. “[A]fter a defendant has been notified of the pendency of a suit seeking an
injunction against him, even though a temporary injunction be not granted, he acts at his peril and
subject to the power of the court to restore the status, wholly irrespective of the merits as they may
be ultimately decided . . ..” Jones v. SEC, 298 U.S. 1, 17 (1936). See also Porter v. Lee, 328 U.S.
246, 251 (1946) (same); Garcia v. Lawn, 805 F.2d 1400, 1402-03 (9th Cir. 1986) (when defendant
takes action after denial of preliminary injunction the court has the power to restore the status quo
by undoing defendant’s actions); People of Saipan v. U.S. Dept. of Interior, 502 F.2d 90, 100 (9th
Cir. 1974) (no equities to developer by proceeding with project during litigation).
If PRDC prevails in this lawsuit, it is likely that ITD will have to utilize a different alignment for
the project. As you know, by seeking and—temporarily—obtaining authorization from the
USACE under NWP 14, the project was not required to undergo a “least environmentally
damaging, practicable alternative” (“LEDPA”) analysis. See 40 C.F.R. § 230.10(a). In the context
of individual permits under Clean Water Act section 404, a LEDPA analysis will be required. ITD
is well aware of this. Indeed, avoiding the LEDPA analysis appears to have driven ITD’s decision
not to provide the USACE with “additional information from the agencies for use in evaluating
and rendering a decision on the [2017] permit application, including . . . additional information
necessary for determining the Least Environmentally Damaging Practicable Alternative (LEDPA)
under the 404(b)(1) Guidelines.” USACE Memorandum for Decision (Dec. 15, 2020), at 1. ITD’s
failure to provide this additional information led the USACE to administratively withdraw ITD’s
2017 application on December 7, 2018.
The record will show that the E-2 Alternative is not the LEDPA. ITD is, or should be, aware that
if the project cannot proceed under NWP 14, ITD will have to select the LEDPA for the highway
route. The State’s time and money being spent on constructing the E-2 route during ongoing
litigation will be wasted and the significant damage done to the environment along that route will
cost the State even more money to repair.
ITD should halt construction now and not resume until this case is resolved, to avoid wasting
public funds and to protect natural resources from unnecessary damage.
Very truly yours,
BRICKLIN & NEWMAN, LLP
August 29, 2022. Kelly Urbanek, Regulatory Division Chief, Army Corps of Engineers, to Doral Hoff, Idaho Transportation Department
DEPARTMENT OF THE ARMY
WALLA WALLA DISTRICT, CORPS OF ENGINEERS
BOISE REGULATORY OFFICE
720 EAST PARK BOULEVARD, SUITE 245
BOISE, IDAHO 83712-7757
August 29, 2022
Regulatory Division
SUBJECT: NWW-2004-0600046, Nationwide Permit 14 Verification Suspension, US-95
Thorn Creek Road to Moscow, ITD Key No. 09294
Mr. Doral Hoff
Idaho Transportation Department, District 2
Post Office Box 837
Lewiston ID, 83843
Dear Mr. Hoff:
This letter concerns the Corps’ August 9, 2022, decision to suspend its verification of
authorization under Nationwide Permit (NWP) No. 14: Linear Transportation Projects,
for Site 1 of the Thorn Creek Road to Moscow highway improvement. As discussed
more fully below, the Corps now finds it appropriate to also suspend the verification as it
applies to Sites 2-13.
On August 9, 2022, authorization for Site 1 was suspended. This decision was
based on new information obtained and verified by the Corps that indicated previously
unaccounted for aquatic resources at Site 1 could be lost as a result of highway
construction activities. These possible additional losses, when added to expected
losses at Site 1, could amount to over 0.5 acre of permanent impacts and disqualify Site
1 from verification under NWP 14.
At this time, it is unclear what type of Department of Army authorization will be
required to construct Idaho Transportation Department’s (ITD) proposed (or any
revised) highway improvement plan at Site 1. For example, if expected losses to aquatic
resources at Site 1 exceed 0.5 acre and cannot be authorized under NWP 14, an
individual permit may be required. Corps regulations at 33 C.F.R. §330.6(d) direct the
Corps to make certain administrative findings about the overall project and the other
sites in the event that Site 1 requires an individual permit.
For this reason, the Corps is hereby exercising its authority under 33 C.F.R. §330.5
to suspend each of the other March 9, 2021, verification decisions (Sites 2-13) and
await clarity on this issue. Effective immediately you must stop all activities in reliance
on the March 9, 2021, verification decisions for Sites 2-13 under NWP 14. You may take
measures necessary to stabilize any work in progress. This suspension will remain in
effect until the authorization is reinstated, modified, or revoked.
Within 10 days of receipt of this suspension letter, you may request a meeting with
the Walla Walla District to present information on this matter. After completion of such
meeting or within a reasonable period of time after this notice, if no meeting is
requested, the Corps may take action to reinstate, modify, or revoke the verification. At
present, the Corps anticipates that this suspension and its prior suspension of Site 1 will
be in effect for approximately 60 days or longer.
If you have any questions or need additional information about this decision, you can
contact Michaela Murdock at Michaela.M.Murdock@usace.army.mil. For informational
purposes, a copy of this letter will be sent to Mr. Shawn Smith of the Idaho
Transportation Department (ITD), Ms. Aimee Hill of the ITD, Mr. Brent Inghram of the
Federal Highways Administration, Ms. Sujata Connell of the Idaho Department of
Environmental Quality, Mr. Clay Hickey of the Idaho Department of Fish and Game, Ms.
Christina Hacker of the U.S. Fish and Wildlife Service, and Ms. Ashley Brown of the
Idaho State Historic Preservation Office.
Sincerely,
Kelly J. Urbanek
Regulatory Division Chief
PROTECT PALOUSE PRAIRIE WETLANDS FROM HIGHWAY EXPANSION
The Paradise Ridge Defense Coalition (PRDC) has challenged Idaho Transportation Department's (ITD's) assessment that there are no wetlands larger than a half acre along the Thorn Creek project.
After negotiating with ITD and U.S. Army Corps of Engineers (Corps) attorneys, PRDC was allowed to hire two wetlands experts and a licensed surveyor.
PRDC's experts found more than a half acre of wetlands near the southern end of the project.
ITD subsequently sent their wetlands consultant back into that site and they stuck to their guns.
Now the Corps is going to study the area and decide whether ITD or PRDC (or neither) is correct.
A half acre is the threshold between allowing the project to qualify under a nationwide permit
(which has few restrictions and no further public input) under the Clean Water Act and requiring a more rigorous individual permit.
ITD may be forced to re-apply for an individual permit and confront the need to show that their preferred alignment is the "least environmentally damaging practicable alternative."
For the fourth time in 20 years, PRDC is challenging the Idaho Transportation Department and now also the Corps,
in an ongoing citizen attempt to force selection of the least environmentally disruptive, central C-3 route for proposed U.S. Highway 95 realignment south of Moscow, Idaho.
PRDC filed a legal complaint in the U.S. District Court of Idaho on March 22, 2022, against the Thorn Creek Road to Moscow highway project.
This ITD project plans to reroute and expand to four lanes a six-mile segment of Highway 95, along the easternmost E-2 alternative route highest on Paradise Ridge.
The E-2 route would significantly impact some of the few remaining tracts of native Palouse Prairie and several critical wetlands.
Please generously donate (form below, or mail us a check) toward this expensive phase of current PRDC litigation seeking protection of native Palouse Prairie and essential Paradise Ridge wetlands from Highway 95 expansion!
Your gracious contribution as a concerned citizen helps cover the $20,000 costs of the work of attorneys, wetland scientists, and a surveyor, who, along with you, are assisting PRDC to win this federal case.
July 27, 2022
What is happening with the Highway 95 Thorncreek Road to Moscow project?
The Idaho Transportation Department has re-applied through the Army Corps of Engineers for a permit under the Clean Water Act to start construction of the Eastern, E-2,
alignment.
This time they applied under Nationwide Permit regulations, which means that little further public input is allowed.
The Corps validated the application to allow ITD to proceed.
No construction has been initiated, and not all of the right-of-way has been acquired. A construction contract has been awarded. They plan to start construction at the southern end of the project.
March 22, 2022
The Idaho Transportation Department (ITD) is continuing through regulatory procedures required before construction of the U.S. Highway 95 Thorncreek Road to Moscow
relocation and expansion project. In September 2020, the agency applied a second time for a Clean Water Act (CWA) permit from the U.S. Army Corps of Engineers (Corps),
acting for the U.S. Environmental Protection Agency (EPA). ITD has also contracted for additional waterways and wetlands studies.
In October 2020, ITD asked that the Corps consider its CWA application under the nationwide permit process, rather than as an individual permit.
The CWA authorizes the Corps to issue general (nationwide) permits approving categories of activities that have minimal adverse environmental effects.
The Corps is currently reviewing the new ITD application and deciding which permit is appropriate, while it also deliberates Tribal, State Historic Preservation Office, and hazardous waste concerns.
A year and a half ago, in 2019, the Paradise Ridge Defense Coalition filed a request under Freedom of Information Act (FOIA) regulations,
for copies of communication between the EPA and Corps, to educate PRDC members and other interested Palouse citizens.
The EPA continues to extend the target date for release of these documents essential to community participation in this issue.
Due to extensive water body impacts well documented in the project’s public record, PRDC assumes that the Corps will consider the new ITD application
under the individual permit process. The Federal Register will print the Corps’ eventual decision that should specify a public comment period.
To receive notices of Thorncreek project actions, visit the E-notification section at
www.nww.usace.army.mil/Business-With-Us/Regulatory-Division/Public-Notices
or contact PRDC through our website.
February 1, 2020
The Paradise Ridge Defense Coalition works to ensure and enhance the public safety, environmental integrity, and natural aesthetics of Paradise Ridge and its environs.
Coalition members:
Palouse Broadband of the Great Old Broads for Wilderness ~~
Wild Idaho Rising Tide ~~
Palouse Group of the Sierra Club ~~
Palouse Audubon Society
Paradise Ridge Defense Coalition
P.O. Box 8804
Moscow, ID 83843
August 16, 2023