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WETLANDS: COMMUNITY AND INDIVIDUAL RIGHTS

V. UNCHECKED GOVERNMENT POWER

HEARING

BEFORE THE

SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH, 

NATURAL RESOURCES, AND REGULATORY AFFAIRS

OF THE

COMMITTEE ON GOVERNMENT 

REFORM AND OVERSIGHT 

HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS

FIRST SESSION

JUNE 16, 1997

Serial No. 105–64

Printed for the use of the Committee on Government Reform and Oversight

(

(II)

COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT 

DAN BURTON, Indiana, Chairman 

BENJAMIN A. GILMAN, New York 

J. DENNIS HASTERT, Illinois 

CONSTANCE A. MORELLA, Maryland 

CHRISTOPHER SHAYS, Connecticut 

STEVEN SCHIFF, New Mexico 

CHRISTOPHER COX, California 

ILEANA ROS-LEHTINEN, Florida 

JOHN M. MCHUGH, New York 

STEPHEN HORN, California 

JOHN L. MICA, Florida 

THOMAS M. DAVIS, Virginia 

DAVID M. MCINTOSH, Indiana 

MARK E. SOUDER, Indiana 

JOE SCARBOROUGH, Florida 

JOHN B. SHADEGG, Arizona 

STEVEN C. LATOURETTE, Ohio 

MARSHALL ‘‘MARK’’ SANFORD, South 

Carolina 

JOHN E. SUNUNU, New Hampshire 

PETE SESSIONS, Texas 

MICHAEL PAPPAS, New Jersey 

VINCE SNOWBARGER, Kansas 

BOB BARR, Georgia 

ROB PORTMAN, Ohio 

HENRY A. WAXMAN, California 

TOM LANTOS, California 

ROBERT E. WISE, JR., West Virginia 

MAJOR R. OWENS, New York 

EDOLPHUS TOWNS, New York 

PAUL E. KANJORSKI, Pennsylvania 

GARY A. CONDIT, California 

CAROLYN B. MALONEY, New York 

THOMAS M. BARRETT, Wisconsin 

ELEANOR HOLMES NORTON, Washington, 

DC 

CHAKA FATTAH, Pennsylvania 

ELIJAH E. CUMMINGS, Maryland 

DENNIS J. KUCINICH, Ohio 

ROD R. BLAGOJEVICH, Illinois 

DANNY K. DAVIS, Illinois 

JOHN F. TIERNEY, Massachusetts 

JIM TURNER, Texas 

THOMAS H. ALLEN, Maine 

HAROLD E. FORD, JR., Tennessee 

———

BERNARD SANDERS, Vermont 

(Independent) 

KEVIN BINGER, Staff Director 

DANIEL R. MOLL, Deputy Staff Director 

JUDITH MCCOY, Chief Clerk 

PHIL SCHILIRO, Minority Staff Director 

SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH, NATURAL RESOURCES, AND

REGULATORY AFFAIRS

DAVID MCINTOSH, Indiana, Chairman 

JOHN E. SUNUNU, 

J. DENNIS HASTERT, Illinois 

JOE SCARBOROUGH, Florida 

JOHN B. SHADEGG, Arizona 

STEVEN C. LATOURETTE, Ohio 

VINCE SNOWBARGER, Kansas 

BOB BARR, Georgia 

ROB PORTMAN, Ohio 

BERNARD SANDERS, Vermont 

JOHN F. TIERNEY, Massachusetts 

JIM TURNER, Texas 

PAUL E. KANJORSKI, Pennsylvania 

GARY A. CONDIT, California 

DENNIS J. KUCINICH, Ohio 

CHAKA FATTAH, Pennsylvania 

EX OFFICIO

DAN BURTON, Indiana HENRY A. WAXMAN, California 

MILDRED WEBBER, Staff Director 

KAREN BARNES, Professional Staff Member 

CINDI STAMM, Clerk 

(III)

C O N T E N T S 

Page 

Hearing held on June 16, 1997 ............................................................................... 1

Statement of: 

Congleton, Doug, president, Protect West Cobb ............................................ 104

Croy, Jim, director, Cobb County Department of Transportation; John 

Wiles, representative, Georgia House of Representatives; Chris 

McLean, resident, West Sandtown Community; and David Parr, resident, West Sandtown Community ............................................................... 4

Dabbs, Robert E., developer, Dabbs Construction Co.; Grady Brown, cattle rancher, accompanied by Steve Woodall; and Wayne Shackleford, 

commissioner, Georgia Department of Transportation .............................. 29

Groszmann, Glynn, Sierra Club ...................................................................... 99

Lester, Laura, West Cobb Community Council ............................................. 87

McCuskey, Dr. Sue, environmental consultant .............................................. 97

Morgan, George ................................................................................................ 95

Smith, Colonel Grant M., District Commander, U.S. Army Corps of Engineers, accompanied by Bill Hough, district counsel; and Necholus 

Ogden, Chief of Regulatory, U.S. Army Corps of Engineers ..................... 59

Weismann, Dr. Jay ........................................................................................... 106

Letters, statements, etc., submitted for the record by: 

Dabbs, Robert E., developer, Dabbs Construction Co., prepared statement 

of ..................................................................................................................... 34

Groszmann, Glynn, Sierra Club, prepared statement of ............................... 101

Lester, Laura, West Cobb Community Council, prepared statement of ...... 91

McIntosh, Hon. David M., a Representative in Congress from the State 

of Indiana: 

Letter from Mitch King ............................................................................. 78

Prepared statement of ............................................................................... 18

McLean, Chris, resident, West Sandtown Community, prepared statement of ........................................................................................................... 9

Parr, David, resident, West Sandtown Community, prepared statement 

of ..................................................................................................................... 14

Shackleford, Wayne, commissioner, Georgia Department of Transportation, prepared statement of ...................................................................... 42

Smith, Colonel Grant M., District Commander, U.S. Army Corps of Engineers, prepared statement of ....................................................................... 63

(1)

WETLANDS: COMMUNITY AND INDIVIDUAL 

RIGHTS V. UNCHECKED GOVERNMENT 

POWER 

MONDAY, JUNE 16, 1997 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH, 

NATURAL RESOURCES, AND REGULATORY AFFAIRS, 

COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT, 

Marietta, GA. 

The subcommittee met, pursuant to notice, at 1:14 p.m., in the 

Cobb County Commission meeting room, Cobb County Government 

Center, 100 Cherokee Street, Marietta, GA, Hon. David McIntosh 

(chairman of the subcommittee) presiding. 

Present: Representatives McIntosh and Barr. 

Staff present: Karen Barnes, professional staff member; and 

Cindi Stamm, clerk. 

Mr. BARR [presiding]. I would like to welcome everybody here 

today to these hearings by the Subcommittee on National Economic 

Growth, Natural Resources, and Regulatory Affairs of the Committee on Government Reform and Oversight of the U.S. Congress. 

The hearing will be Chaired by Representative Dave McIntosh 

from Indiana, who is the chairman of the subcommittee. I am honored to serve as a member of the committee and this particular 

subcommittee with Chairman McIntosh and other Members. 

The genesis of this hearing has both a general reason and a specific reason. Generally what we are trying to do in this Congress 

is hold as many hearings as is feasible, given the time constraints 

and the expenses involved, around the country to allow our citizens 

from all walks of life to participate more freely and more easily in 

the oversight processes of the Congress. 

When I spoke with Chairman McIntosh several months ago and 

he indicated that they were interested in holding hearings in districts around the country, I asked him if he would be able to schedule some hearings here. I think this is the first time that we have 

had hearings in the Seventh District by a congressional subcommittee or committee, and specifically also in Cobb County. 

Chairman McIntosh indicated that he would be very, very happy 

to do so and asked for input as to what an appropriate subject matter would be. 

After talking with a number of constituents from local government, from the business community and private citizens, we determined that one of the most relevant topics, one of the most timely 

topics that we could do some work on and really provide to ChairVerDate Dec 13 2002 11:18 Apr 01, 2003 Jkt 010199 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 W:\DISC\45478 45478
2

man McIntosh and the rest of the committee some important insights, would be to focus on the wetlands regulatory affairs. 

Wetlands affect virtually everybody in the country, whether you 

live on or near wetlands or not, because of the cost of the regulation, the sweep of the regulations and ultimately, the cost to the 

taxpayers of this country. 

What we will be doing today is hearing from a number of individuals, private landowners and developers who are interested in 

building subdivisions and other developments in our communities 

in the Seventh District. We will be hearing from individuals concerned directly with the transportation needs of our citizens. The 

State Department of Transportation Commissioner Wayne 

Shackleford will be speaking. We have on our first panel Mr. Jim 

Croy from the Cobb County Department of Transportation. We will 

be hearing from State Representative John Wiles as well as representatives from the Corps of Engineers. It is the Corps of Engineers which has the primary jurisdictional responsibility for implementing and enforcing wetlands regulations, and they will be 

speaking with us today to answer any questions and provide information on those areas in which they have been active. 

The purpose ultimately of these hearings is two-fold. One, to 

bring to the public’s attention a better understanding of both the 

shortcomings as well as the benefits of the existing wetlands regulations programs, policies and regulations, to highlight those areas 

where there have been problems, either problems with 

miscommunications, problems with overly restrictive or overly confusing regulations, time delays, costs involved; and ultimately the 

purpose of that is to identify areas in our Federal regulations, and 

if necessary in our Federal wetlands related laws, that can be 

amended, so these work better. 

When we talk about working better, what we mean, at least 

what I mean, is that all of the different interests are balanced 

properly so that no one side of the equation overshadows everything else. We want to make sure that true wetlands are properly 

protected as a resource for all of our citizens to continue to enjoy 

and so that we all benefit from the very positive results of having 

proper wetlands throughout our country and not diminishing those 

important natural resources. But we also want to be mindful of the 

fact that whenever we do have these Federal regulations, there are 

costs involved, and those costs are ultimately borne by the taxpayers of this country. 

And we want to make sure that the regulations in this area, as 

well as other regulatory areas, in which the Government is involved—we want to make sure that the different interests are balanced; the interests of the taxpayers, the interests of our local governments which have to ultimately provide the services that sometimes are brought to a standstill by Federal regulations. We want 

to make sure that those business people in our communities who 

have a responsibility to their employees and to the consumers in 

our communities to provide the jobs and the amenities such as 

housing, transportation, and businesses that the citizens demand 

and have a right to expect. We also want to make sure that the 

environmental concerns are properly reflected and weighed in the 

equation. 

3

So again, to recap, what we are trying to do here in these hearings and in others that we will be having throughout the country 

and some in Washington as well, is to look generally at these problems, to identify those areas where we can do a better job of either 

enforcing or drafting our regulations and our laws and using examples such as we will be seeing today and hearing about today, to 

highlight, again both those areas in which these regulations are 

working properly as well as those instances where we can be doing 

a better job. 

We will have three different panels today. We will try and stay 

on a fairly rigorous timeframe because we do have a lot of witnesses and we do want to leave some time at the end of the hearing today for something that Chairman McIntosh believes is very 

important in all of our hearings whenever possible, and that is to 

provide a time period for public comment. 

We will be swearing in each of our three panels at the beginning 

of each one of those panels. The written remarks for any of the 

members of the panels who wish to submit them, will in fact be 

printed in their entirety in the record, so even if you are not able 

to make it through your entire written presentation, please rest assured that all of the comments will appear fully in the record of 

these hearings and be available for other members of the public, 

for the interest groups, as well as the general public, when these 

hearings are published later on this year. 

Each panelist will be given approximately 5 minutes in which to 

make their opening remarks. We will just proceed in the order. 

Then each member of the subcommittee; namely, myself and Mr. 

McIntosh, will have 5 minutes each to ask questions of each panel. 

And of course, these proceedings are being televised, so we would 

ask everybody kindly to speak up. 

And with that in mind as preliminary thoughts, let me invite and 

ask each member of panel No. 1 to stand and be sworn in and then 

I will introduce the members of the panel and we will proceed with 

the remarks. If each panelist would stand and raise their right 

hands. 

[Witnesses sworn.] 

Mr. BARR. Thank you. Each witness has responded in the affirmative. 

The first panel, we will be hearing from four individuals who 

have a very significant understanding of different aspects of wetlands regulation. I would like to introduce those members of this 

panel that we will be hearing from. 

Appearing for Cobb County will be Jim Croy, our director, here 

in Cobb County, for the Cobb County Department of Transportation. Jim is appearing here in his capacity as director of the Department of Transportation in lieu of Chairman Bill Byrne. Jim, we 

are very happy to have you here today. 

Also on this panel is the Honorable John Wiles, one of our State 

representatives who represents portions of Cobb County in the 

State House of Representatives, and has done a great deal of work, 

both in his private capacity as well as in his work as a State legislator, looking at the costs of regulations and again, doing—what we 

are trying to do at the Federal level, he is trying to do at the State 

level, and that is to bring a proper balance to these regulations. 

4

Representative Wiles, we appreciate very much your appearing 

here today with us. 

We also have two individuals—we have Chris McLean from the 

West Sandtown community and Mr. McLean is intimately familiar 

with certain aspects of Federal wetlands regulations. We appreciate your appearing here today to share your experiences and answer any questions as they might relate to problems that you have 

run into. Mr. McLean, we appreciate your being with us today. 

And finally, we have Mr. David Parr, also with the West 

Sandtown community. He is a resident that in his capacity has also 

come into contact with Federal wetlands regulations and we appreciate your taking time to share your experiences with us here 

today, both you and Mr. McLean I think have interesting stories 

to tell that are relevant, both to us in the Government here, as well 

as to the population generally, and we appreciate your appearing. 

With that as preliminary comments, what I would like to do is 

to begin the presentations with Mr. Jim Croy, the Cobb County Department of Transportation head. 

STATEMENTS OF JIM CROY, DIRECTOR, COBB COUNTY DEPARTMENT OF TRANSPORTATION; JOHN WILES, REPRESENTATIVE, GEORGIA HOUSE OF REPRESENTATIVES; 

CHRIS MCLEAN, RESIDENT, WEST SANDTOWN COMMUNITY; 

AND DAVID PARR, RESIDENT, WEST SANDTOWN COMMUNITY 

Mr. CROY. Good afternoon, Representative Barr. 

I am Jim Croy, the director of the Cobb County Department of 

Transportation. I am here today on behalf of Chairman Byrne, our 

Board of Commissioners and our county manager, Mr. David 

Hankston, to provide a statement for Cobb County. 

It is the responsibility of the Cobb County Department of Transportation to plan, manage and implement our transportation improvement program. In Cobb, that program since 1985, will total 

approximately $960 million worth of road improvements that will 

be invested in our county through local funds. This investment is 

comprised of over 540 scheduled projects, many of which will require and have required permitting under Section 404 of the Clean 

Water Act. 

On reviewing our project history, I would just like to make the 

following observations. 

1. In the event that the Corps of Engineers in reviewing an application denies the permit, we have seen there is no formal appeal 

process within the system for the further review and consideration 

of that project and a discussion of the issues as it relates to the 

denial of the permit. 

2. The applicant assembles—in this case Cobb County—we assemble a team of professionals from the various different fields to 

prepare our technical area evaluations. These are evaluations such 

as traffic, transportation planning, environmental, constructability, 

hydrology, structures and just standard roadway design for the 

project. And typically these are reviewed by the Corps and many 

times we feel we have not been able to have that degree of discussion about some of these different expertise that certainly I am not 

a professional expert in all the issues and we need to have some 

degree of ability to discuss these at a technical level. 

5

3. There are concerns regarding the coordination of the permitting process as it relates to the Corps of Engineers and the other 

regulatory agencies. I give—for example, we have one project which 

we have reached agreement on but it required 18 months to develop consensus between the Corps of Engineers and the Georgia 

State Historic Preservation Office over a Memorandum of Agreement over a historic structure on one of our projects, the Powder 

Springs Parkway. The same situation existed in time for another 

road project here in Marietta. 

In looking at the review criteria, I would like to make a couple 

of comments as it relates to maybe some of the original direction 

of the NEPA 1969 directive. 

It appears at times that the review process does not regard the 

definition or purpose in regard to the original direction of NEPA. 

Projects were brought forward that, in our mind, fulfill the socioeconomic and other requirements of present and future generations 

of Americans and we have every practical means and measures incorporated into the design of the project that is sensitive to the 

critical importance of restoring and maintaining environmental 

quality to the overall welfare and development of man. And those 

are quotes out of NEPA. 

I think our projects in Cobb County as we bring them forward, 

we have tried to look at that balance. I think sometimes in looking 

at the balance of environment, community and transportation, 

many times I think due to the current regulations, the scale is 

tipped toward environmental in many instances instead of balance. 

It appears that at times the review process does not equally balance, as I said, impacts both positive and negative between environmental and human issues as these projects are developed, and 

to create and maintain conditions under which man and nature 

exist in productive harmony. Again, a quote from the 1969 NEPA 

documents. 

Transportation improvements are identified to address in Cobb 

County our existing and future travel demands. We have a process 

of modeling and prediction and developing a system of transportation improvements throughout our whole county that is interconnected. Our region, the Atlanta region, with which Cobb is a 

portion of, has continued to grow and develop irrespective of road 

and other modal systems that are being put in place. The notion 

that no road equals no development has been historically incorrect. 

As there are no controls that have been incorporated, private development will still have the potential of impacts to our stream quality and wetlands even under the no-build scenario. I think this part 

of the no-build scenario certainly needs to be incorporated into the 

process. 

And finally, it would appear at times, especially in the past, that 

the lack of consistency for approval of techniques used in the mitigation impacts our projects. At times it would appear that the 

methodology used for one project has been unacceptable in another 

project. 

Also, the methodology used to get to the point of discussions of 

mitigation appears many times not consistent. For example, the 

discussion of traffic studies and corridor studies are very difficult 

to get past that point, to get to the actual discussions of the actual 

6

alignment. Again, I think it gets back to the point of bringing each 

of the different studies together to reach consensus prior to the 

alignment issue. 

On behalf of Cobb County, I would like to thank the committee 

for the opportunity to testify today and will be available for any 

questions you might have. 

Mr. BARR. Thank you, Jim. 

Representative Wiles, if you please now would make whatever 

opening remarks you would like to for 5 minutes and then as soon 

as we finish with the panel, we will have questions for all of you. 

Mr. WILES. Thank you, Representative Barr. 

It is indeed a pleasure to be before you and members of the committee to testify today about wetlands. I am a State representative, 

I represent the 34th District, which is west Cobb, Kennesaw and 

west Marietta. And importantly, I am also in private life a real estate attorney. 

I appreciate the opportunity to come today and talk to you about 

the problems that face my constituents and by extension your constituents. As a result of the Corps’ delay, delay and delay on the 

many road projects of west Cobb, our constituents sit daily in 

bumper to bumper traffic, which affects the quality of life, and to 

me, it is just—the belief if you do not build a road, there will be 

no development and you and I both know, and members of the committee know that development is here. Cobb County has addressed 

it by taxing themselves, the citizens have agreed to tax themselves 

to build these roads, but it appears the Federal Government 

through the Corps of Engineers has said no, we do not want to let 

you build these roads that the community wants. 

In my opinion, there are three main issues with the wetlands 

legislation. I have talked to many of my constituents and many of 

my clients and one of the problems is trying to figure out what a 

wetland is. It depends where you are and it depends who is interpreting. One person’s wetlands is another person’s dry land. One 

of the things that was reported to me in one situation in Cobb 

County, there was a wet area, the Cobb County Department of 

Transportation went out and surveyed the water, checked the 

water, turns out the water was chlorinated. That means there was 

a water main leak. They found the water main leak. To this day, 

the Corps of Engineers considers that area that was wet because 

of a water main leak, wetlands. That is ridiculous. If it is 

chlorinated water, it is certainly not wetlands. 

What I think is there needs to be some process available to identify what wetlands is so that if a person goes in to develop their 

land, to farm their land, that they can turn to a resource and say 

yes, this is wetlands and now the process is you develop the land 

and then, in essence the Corps of Engineers through the traffic cop 

comes out and says you were speeding and you say well I did not 

know I was speeding, I did not know it was wetlands. They say, 

oh, well, you should have known. You should have known by the 

flora or the content of the water or whatever the plant life is. 

The other thing is what seems to me this arbitrariness of the 

Corps of Engineers—we are the Federal Government, we are right 

and you are wrong. And you are the constituents in Cobb County, 

my constituents, your constituents, and they choose to build the 

7

road, tax themselves, do not seek Federal funds, have public hearings, come up with a road plan that everyone agrees to, the Federal 

Government through a bureaucrat down in Savannah says no, you 

cannot build this road. And then when we say well we want to 

build the road, the only recourse is to go to the Federal courts. And 

we have all heard about the backlog in the Federal courts and how 

long and of course how expensive. That is the tax on the constituents and the citizens of Cobb County because they have to hire a 

good law firm to go down in Federal court. Why is there not a procedure within the Corps of Engineers, an Administrative Procedures Act procedure, a short circuit so we do not have to go to Federal courts to resolve these disputes. 

And the third thing is—and this to me is the most important—

why are we talking about this as a Federal issue. I understand it 

is the Federal waters, I understand it is the environment. But we 

at the State level, me at the State House and my fellow members 

of the General Assembly, the local government. We are just as concerned about the environment, perhaps more concerned, than the 

Federal Government is. Why can this issue not be devolved to the 

States? Why are we regulating in Washington, DC, conduct in west 

Cobb County? That is the challenge I put to you as a Congressman 

and to the entire 105th Congress—return this back to us. Trust us 

at the State level. The 10th amendment says that the power should 

be reserved to the State. This should be our area, not the Federal 

Government’s area, and I ask that you would consider and Members of the Congress would consider returning this back to the 

State level. 

When I go to the people that live around Dowell Elementary and 

tell them that a Federal bureaucrat has said there is going to be 

a four-lane road right by their elementary school, it is really hard 

for me to explain that to them. When the county representative 

who has been elected to represent, where the citizens have decided 

on a road path, and instead a Federal bureaucrat tells them that 

they are going to put a four-lane by their school. There is just no 

justification for that. So I would urge the Congress to consider devolving this back to the States and let us handle it at the local 

level. At the State level, I would like to send it back down to the 

county level. I do not want to be a mini-Federal Government and 

I do not think we should be. I think we can handle this at the local 

level. 

I thank you, Mr. Congressman. If you have any questions, I will 

gladly address them. 

Mr. BARR. Thank you, Representative Wiles. We appreciate not 

only your testimony today but your work in behalf of the citizens 

in your district and indeed throughout the entire State of Georgia. 

Mr. McLean, if you would provide us some insights in your opening testimony and then we will have questions for the entire panel. 

Mr. MCLEAN. Thank you, Representative Barr. I appreciate the 

opportunity to speak here. 

Ladies and gentlemen, my name is Chris McLean. I am a resident of west Cobb County and a businessman in the community. 

And the issue that I want to testify about is one that Representative Wiles spoke of, which is the four-lane highway going in front 

of Dowell Elementary, which is a route that completes a road called 

8

the Cobb Loop, if you will. I choose, just in the essence of time, just 

to read my testimony which I printed out and provided copies. 

The Loop project is one that will be completed. Common sense 

should direct anybody’s thinking to the completion of the project. 

Any further delay will cause more people to be negatively affected, 

such as those at Pennington Subdivision. If no road is built, the increasing traffic will find its way down existing roads and cause injuries and fatalities. 

The routing of the Loop has been focused on West Sandtown 

Road. Three years ago, it became obvious to the majority of west 

Cobb citizens that Noses Creek would be the correct routing for the 

Loop. Now after untold sums have been spent of citizens’ money to 

ensure the proper routing of the Loop, West Sandtown Road in particular is now again in jeopardy. 

If West Sandtown is utilized it adversely affects 2,100 residents 

and hundreds of school children at the Dowell Elementary School. 

They will be subjected to 40,000-plus vehicles traveling 50-plus 

miles an hour 24 hours a day. 

The completion of the project should be the Noses Creek route, 

as it will deliver the least injury and fatalities for those who use 

and live near the route. 

Delay of the project increases the amount of people it affects. 

There has been a subdivision built in the past 3 years that will be 

disturbed by the Noses Creek route. We have been told that the 

road cannot be developed along Noses Creek because of danger of 

disturbing the environment. Environment is a major concern for all 

of us. After reviewing the list that is used by the Corps of Engineers, it is obvious to me that there is a major environmental concern missing. That concern is the human environment in relation 

to all conditions and options. If you do not consider human environmental conditions as important as the balance of nature, how can 

you make moral and ethical decisions? The answer is you cannot. 

We all need to understand that today each of us should set the 

only logical, moral and ethical decision in our minds. The decision 

that Noses Creek routing needs to be developed and acted upon. 

The health and well-being of thousands of innocent people depend 

on it. It is in our hands here today. The issue is prosperity or adversity. One of those will prevail. 

I appreciate the time. Thank you very much. 

Mr. BARR. Thank you, Mr. McLean. 

Rounding out this first panel will be Mr. David Parr, like Mr. 

McLean, also a resident of the West Sandtown community which 

is impacted greatly by recent decisions and delays regarding the 

West Cobb Loop. 

[The prepared statement of Mr. McLean follows:]

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Mr. PARR. Thank you very much. I would like to extend much 

thanks to Commissioner Cooper, who put my name in the hat, so 

to speak; Chairman McIntosh for inviting me here; and Congressman Barr. 

My name is David Parr, I am a resident of the west Cobb community. I live in a subdivision located off of West Sandtown Road. 

I also want to make it clear that I do not represent any one group, 

I represent myself and my wife. However, I do feel my views are 

in line with a majority of the people in west Cobb. 

First of all, let me make it very clear I do support the building 

of the West Cobb Loop and its eventual completion. The road is 

very much needed to accommodate the growth of west Cobb and 

that is something that the county definitely needs. 

However, we should do the best to minimize any repercussions 

to our communities, the surrounding communities and as well as 

the environment, which is also very important. The question here 

is can we balance the needs of both the environment and our communities. I think we can. It is not impossible, but what it takes is 

team work and pulling together of all the parties involved. 

As I have stated, the road is definitely needed to accommodate 

the growth and connect the eastern portion of the county with the 

western portion of the county, and to alleviate traffic congestion. 

The Corps of Engineers earlier this year did reject the recommended route, which deeply concerns me, and the subsequent 

lack of cooperation between our political leadership, DOT and all 

the other parties. There does not seem to be any cooperation there 

and that bothers me. 

You ask how will this impact our neighborhood, how will this 

four-lane road which may travel through several different communities, depending on which alternative route is selected, if that is 

the case? It would definitely impact the health and safety of our 

community and our children. Take, for example, the West 

Sandtown Road, as was eloquently stated earlier by Mr. McLean, 

involves several different homes on the road, 50-plus driveways on 

the road, schools, churches. They would be significantly impacted 

and I do not know that we want to do that. I do not think anybody 

here wants to do that. We do not want to endanger the lives of our 

community and our children. We do not want to reduce the quality 

of life in that area. Every day when I drive down West Sandtown 

Road, I see joggers, I see cyclists, I see children walking to and 

from school. And I do not think we want to impact or endanger 

their lives. 

An additional point that I would like to state is my understanding of the east-west connector is we want it to be a transportation corridor between east and west. That means limited access. 

And the alternative routes defeat the whole purpose of that. They 

involve different communities, many different homes and so forth. 

So I do not see that being a limited access highway. 

So I would strongly urge all parties involved to get together to 

search for a win/win solution, not only for the west Cobb communities, but also the environment. I think it is very important to 

keep the environment as natural as possible, with as little impact 

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lution. And I think we can do that. We have to pull together, and 

I would recommend or I would urge everyone to come together and 

revisit the original route recommendation which was denied earlier 

by the Corps, and ask five questions in a different light, a more enlightened approach, a more positive approach. 

Let us ask ourselves what is already working well with the recommended route? What specifically makes it work? What are we 

trying to accomplish? What would be the benefits to the county, 

surrounding communities and the environment? What can we do 

more of better or differently to begin moving toward our objective? 

I hope we can do that. If you use that approach, I think you will 

find a win/win solution for all. 

I strongly urge everyone to come together, re-examine the original route and do whatever it takes to make that everyone’s preferred route. 

Thank you. 

[The prepared statement of Mr. Parr follows:]

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Mr. BARR. Thank you, Mr. Parr. 

Before we move into the questioning of this first panel—and I 

would like to thank all of the panelists again for being here today—

I would like to introduce the chairman of our subcommittee, who 

has arrived. Mr. Chairman, we usurped your power, but only temporarily and only for I hope the same purposes for which you would 

have exercised it. 

Mr. MCINTOSH. I am sure it was good intent. 

Mr. BARR. It is a tremendous pleasure for me to introduce to the 

Seventh District, to Cobb County and the rest of the citizens from 

across the Seventh District who have an interest in these hearings 

and have an interest in seeing that their Government at the Federal level remains more in contact and reaches out more to our 

communities, I would like to introduce the chairman, Dave 

McIntosh. 

Mr. McIntosh was elected to the Congress at the same time that 

I was, in the 1994 election. He represents Indiana’s Second District 

and chairs this subcommittee on the Government Reform and 

Oversight Committee. His prior work positions him uniquely to 

really play a major role in helping to formulate the policies, the 

programs, the regulations that bring us here today. 

Mr. McIntosh served as Special Assistant to President Reagan 

for Domestic Affairs. He has also served with former Attorney General Ed Meese. But perhaps most importantly is the tremendous 

work that he did with former Vice President Dan Quayle working 

on the Council on Competitiveness. He did tremendous work over 

the years in looking at Federal regulations and trying to make 

them a little bit more rational, a little bit more reasonable, a little 

bit more understandable and a little bit fairer to all the interests 

in our communities. 

Mr. Chairman, it is a pleasure to welcome you here to the Seventh District and to Cobb County today. 

Mr. MCINTOSH. Thank you very much, Bob. [Applause.] 

I have a long prepared statement which I will put into the 

record, but let me just say I appreciate you arranging for this hearing; thank you for getting it started, and I apologize, particularly 

to the first panel, and to everybody, for being delayed. My flight 

was late, which gave me plenty of time to read your testimony on 

the plane, and so I am familiar with the issues you wanted to bring 

before the subcommittee. 

Let me say very briefly that I think this issue of how we enforce 

wetlands policy in this country is critical, for several reasons. First, 

it is critical for doing the right thing for the environment. Second, 

it is critical for doing the right thing for the people who are involved: in this case, the homeowners that Mr. Parr represents and 

others. But also, I think it is important that we look at this from 

the perspective of preserving our civil rights, because one of the 

rights that our Constitution guarantees is that the Federal Government will not take private property without paying just compensation, even if it is for the best public use. 

And one of the things that I think we have seen over and over 

again in this whole area is that citizens, very innocent in their own 

regards, oftentimes are punished or appear to be punished because 

their land is designated as a wetland. And so part of this hearing 

17

will be hearing from people about how this process works: does it 

protect property rights, does it serve the citizens well, and does it 

end up doing the best job possible for the environment in preserving important natural habitat? 

And again, Bob, let me say thank you to you and particularly 

your staff here in the district for arranging this hearing. Our subcommittee has a tradition now of going outside of Washington and 

listening to people who are engaged in everyday lives and do not 

have time to come to Washington to petition us for relief from the 

Government, and taking that information back with us. And I can 

tell you folks in Cobb County that Bob has been a great member 

of this subcommittee and is an active voice for the people here in 

Georgia every time we get together. 

So thank you and let us proceed now with the rest of the panel. 

I have had a chance to read your written testimony and look forward to talking with you as we move into question and answer. 

[The prepared statement of Hon. David M. McIntosh follows:]

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Mr. BARR. Thank you, Mr. Chairman. With your permission 

then, I will begin the questioning and then turn it over to you. 

Mr. Croy, as the transportation director for Cobb County, could 

you provide a little bit of background to the subcommittee on how 

the West Cobb Loop project has been and will be paid for? 

Mr. CROY. The West Cobb Loop project, which is a project in west 

Cobb County that connects Dallas area to the Powder Springs Road 

area through west Cobb, is a project that was first initiated in our 

1985 Transportation Improvement Program. 

Mr. BARR. I am sorry, that was 1985 or 1995? 

Mr. CROY. 1985. 

Mr. BARR. Thank you. 

Mr. CROY. It was set aside by the voters in 1985 as one of the 

projects in that TIP. Now our Transportation Improvement Programs here in Cobb are funded through a local option 1 percent 

sales tax. That tax has been voted on by the voters of Cobb County 

in 1985, again in 1990, and again in 1994. So we have had three 

TIPs. Moneys for the West Cobb Loop were set aside in both the 

1985 and the 1990 program. And this is all local funds, there are 

no State or Federal dollars in the project. 

Mr. BARR. Thank you. And can you give us just a ball park figure 

of the current estimates of the cost of the project and whether or 

not those have increased or decreased over the years that the 

project has been delayed? 

Mr. CROY. Well, the current estimates as they stand today is on the approximately $35 million range. This is a project that certainly costs in construction has increased, especially structural 

work. So although I am not in a position to give an exact dollar 

figure, I would predict that projects where we have structures—

this particular project has one bridge that is approximately 3,000 

foot in length—those projects would have escalated over the past 

12 months. 

Mr. BARR. Representative Wiles, you talked a little bit in your 

remarks about the lack of an effective appeal process for the rejection of wetlands permits, section 404 permits. 

Are there some specific ideas that you would want to bring to the 

subcommittee’s attention with regard to how we can implement an 

effective appeal procedure? 

Mr. WILES. Well, in my mind, the courts, the Federal courts, 

should be the last resort, not your first step, if you are dissatisfied 

with a decision of a Federal bureaucrat. 

Mr. BARR. And you say that as an attorney. 

Mr. WILES. I do, because my constituents are the ones that pay 

the bills for the county’s attorneys to go litigate these cases. And 

delay, because of the litigation, we know in dealing with the Federal courts, not in particular this case but it is always a delay period, it always takes time. Traditionally in dealing with the Government, there is the Administrative Procedures Act which provides an independent judicial, but not really, a procedural appeal 

process, where someone can hear it quickly. Generally they are in 

that area, whatever area you are appealing through the Administrative Procedures Act, they are familiar with the issues and they 

can evaluate the issue. Where here, you get a Federal judge who 

perhaps has never heard a case such as this. With an AdministraVerDate Dec 13 2002 11:18 Apr 01, 2003 Jkt 010199 PO 00000 Frm 00025 Fmt 6633 Sfmt 6602 W:\DISC\45478 45478
22

tive Procedures Act appeal you will get someone that is technically 

up to speed and perhaps get a quicker decision. Importantly, I 

think you will get a much more cost-effective solution. Instead of 

burdening the Federal courts with litigation, you can perhaps resolve this case. 

And the other point would be perhaps there needs to be mediation or a process after the appeal or before the appeal, where you 

get the people in a room and you try to work it out, as opposed to 

having where you are now; you get a Federal court suit and then 

the judge says can you all not work it out. 

So that is my ideas—mediation or perhaps an Administrative 

Procedures Act appeal. 

Mr. BARR. Thank you. 

Mr. Croy, I know you are very familiar with this project, both 

you, Commission Chairman Byrne, Chairman Wysong, Commissioner Cooper, the entire Commission has been working and devoting a great deal of attention to this project. We have heard today 

from two citizens from the community directly impacted, who have 

indicated their support for the project moving forward. You have 

heard from Representative Wiles who represents citizens who are 

directly impacted and favor the project moving forward. 

In your view, does the project as the Commission has proposed 

it, have the backing of the community in general? 

Mr. CROY. Prior to the Board adopting what is known as the 

Noses Creek alignment, there were several public meetings. One 

public meeting I know was attended by in excess of 600 folks. It 

is my opinion that as this process has evolved since 1993, when the 

Board adopted the Noses Creek alignment, that that alignment has 

the general approval of the majority of the folks in west Cobb, as 

well as the technical staff that has reviewed this project on behalf 

of Cobb County. 

Mr. BARR. When did the county first approach the Corps of Engineers for a permit? 

Mr. CROY. The individual permit, I believe—let me check my 

notes—application was made in February 1993. 

Mr. BARR. Four and a half years ago, approximately. 

Mr. CROY. Yes, sir. 

Mr. BARR. I, of course like you, read local media from this area 

and I have noticed in recent days there have been some articles 

that seem to reflect some movement with regard to possibly resolving this impasse. Is there anything that you can share with us 

today publicly with regard to whether or not there are some positive developments? Because one of the things we want to do here 

is not simply to highlight the problems, we want to identify if there 

are problems in the procedures, in the regulations, in the laws that 

need correcting. But we also want to be very mindful of the fact 

that if there are things that are working, that we highlight those 

as well, and perhaps do something to make sure that these things 

that are working happen quicker and in a less costly way. 

Mr. CROY. Our Board of Commissioners has directed the Department to submit a new application to the Corps of Engineers for the 

West Cobb Loop. We have had preliminary discussions at a staff 

level with members of the Corps, which I think have been very 

23

positive. We have a meeting scheduled for the first week of July 

to go over the pre-application process for this new alignment. 

So I think we have had very positive discussions that are leading, at least from the county’s perspective, so we can submit an 

alignment very similar to the Noses Creek alignment, but then 

again, it would be a new alignment, certainly in the Corps’ eye. 

Now I cannot speak for the Corps, other than that in our discussions with staff—and I know there is a process we have to go 

through—but I think the very positive process that we have worked 

well with the Corps over the past 2 or 3 weeks is the exact appeal 

process that we wish we had, that we could go back and take a second look at a decision and get answers and communication and 

maybe bring about better views of certain documentation. 

As I said in my testimony, I think the traffic considerations, 

there has always been some miscommunication I feel as it relates 

to traffic, and we have had the ability I think now in the past few 

weeks to sit down and address that issue. 

So I think what we are doing is very positive, it has worked—

it is working at this point in time and I think that is the very thing 

we need in an appeal process. 

Mr. BARR. Thank you, Mr. Croy. Mr. Chairman. 

Mr. MCINTOSH. Thank you, Bob, I appreciate it. 

I have got a couple of questions for Mr. Croy and the staff is 

checking whether there are maps available that we could show to 

help me understand this. But while that is being arranged if it is 

possible, let me ask Mr. Parr and Mr. McLean, do you have any 

general suggestions that we could take back for improving the regulatory process, either with relationship to the Corps and the wetlands permit and EPA’s involvement, or any other insights there? 

Mr. MCLEAN. Yes, I believe there are some ideas that should be 

implemented and I believe the appeal process should be amended 

so that somebody can go in and mediate and talk about the issue 

that was selected and the decision that was made. 

It seems to be that the information I have, all parties did what 

they were commissioned to do, but on the other hand, there is more 

information that comes up after the fact that needs to be reviewed. 

If we had a process where that information could have been reviewed, we may not be talking about this at this point. So that 

would be my suggestion. 

Mr. MCINTOSH. OK, thank you. Mr. Parr. 

Mr. PARR. I would concur with several statements made earlier 

that there certainly should be some type of appeal measure in place 

other than having to go to court. I do not think that speeds up the 

process at all and all it does is get a few lawyers a little more richer. 

Also, just looking at some of the material here. I do not have access to that application but I was just reading the denial or the 

reason for the denial, and a lot of it seems to stem from maybe 

some misunderstanding from our side in completing that application. It looks like the Corps was looking for other alternatives to 

weigh the benefits of any alternative. 

Just based on my background, any time you put forth a proposal, 

you weigh the benefits of all proposals. You do not want to just put 

up one proposal, you want to put up three or four options and 

24

weigh the cost/benefits of all those options and you choose the best 

one within the scope of whatever you are dealing with, whatever 

your resources are, and the concerns of the parties involved. 

I would recommend that we make sure that the original application is submitted correctly, and if there is not any means in place 

to make sure that the parties involved, whether it be the DOT or 

the Corps or whatever, are talking and everybody understands both 

sides of the issues. We should make sure it is done right the first 

time rather than have to go through all this. 

Mr. MCINTOSH. Thank you. Actually that keys up my next series 

of questions for Mr. Croy. 

And if you could put up for us, Mr. Croy, a map that shows—

and I have got it labeled on mine ‘‘Alternative 1–A, Nose Creek,’’ 

which I think was the original county proposal. I do not know if 

there is a staff person that could help them with that. 

Let us talk about the costs and the benefits of that particular 

proposal, I guess in particular with relationship to the concerns the 

county had with residential areas as well as the concerns about 

wetlands that may be in the route. What is the impact in terms 

of residences in the area and what is the impact on wetlands and 

what was the county’s proposal to either mitigate that or build additional wetlands in other areas? 

Mr. CROY. OK. And I apologize to the audience for blocking their 

view a little bit here, but it is very hard for you all to see up on 

the screen. 

The alignment that you see before you is the preferred alignment, known as the Noses Creek alignment. This is—just to orient 

you—this is Dallas Highway at Villa Rica, Villa Rica Road and it 

leads onto the new alignment. What you see marked in blue are 

the wetland areas along the route and what you see in red are proposed bridges. To orient you a little more, this is Macklin Road in 

west Cobb, terminating at Powder Springs Road here. North is to 

your right. 

The proposal as submitted originally to the Corps has—the impacts to wetlands, was approximately 11 acres. Of that 11 acres, 

three of it was in this area of bridging, primarily in the area here. 

That reduced it to just under seven acres, which I believe was in—

as you can see, again from memory, approximately 13 different 

areas, the greatest impact is in this area near Macklin. 

What we proposed as mitigation sites along the area is a combination of mitigation which totaled up to just over 80 acres of 

mitigation. That had areas of restoring, areas of wetlands, had 

areas of creation. This area in pink is a wetland that would be created. The areas in green are what we consider upland buffering, 

these are areas we would acquire, this piece of property, as county 

property, and we would require as you see in the green as upland 

buffering. Again, another area in here of the upland buffering. And 

restoration, which is shown in the yellow. 

So by the 8 acres of impact or 11, 3 of them we mitigated with 

a bridge, the other 8 we came up with a mitigation plan of about 

80—I think it was 85 acres in round numbers—between the green 

area, which is again, just to review, upland buffering. The yellow 

area which is restoration and the blue area—I guess that purple/

pink is creation. 

25

Mr. MCINTOSH. So let me summarize for my own understanding. 

You would have an impact, particularly with the bridge over a total 

of 11 acres, 3 with the bridge—those wetlands would continue to 

exist but there would be some impact because the highway would 

be built with a bridge over it. And then in exchange for that, if you 

will, you are proposing to upgrade or create a total of 86 acres that 

would be environmentally protected areas, to preserve other wetlands in the area. 

I guess that is the environmental benefit. The economic benefit 

for the road I am familiar with in connecting the two parts of the 

county. What is the cost in terms of people having to be relocated 

or other concerns that you would have with the community there? 

Mr. CROY. We had several relocations along this project. Let me 

pick up my notes if I might. 

Mr. MCINTOSH. Sure. 

Mr. CROY. As the project was set on the original alignment, there 

was only three residences that would be impacted as far as relocations, with this alignment along Noses Creek. 

Mr. MCINTOSH. And your usual procedure with that is to condemn the property and pay the property owner the value so they 

can choose to relocate in another area? 

Mr. CROY. Right. Our normal procedure in all right-of-way negotiations is to make that property owner whole. We would have an 

independent appraisal and offer that property owner that appraised value for their property. If it is a relocation, then on top 

of that we offer them relocation assistance if they need that. 

Mr. MCINTOSH. So you attempt to make them economically whole 

and obviously there is an intangible value if that is their dream 

home and they really wanted to live there, there is not much you 

can do about that. OK. 

Now anything else in terms of the costs or benefits in this particular alternative? 

Mr. CROY. The only thing I might mention, that since you are on 

new location, the areas from where the new location takes over, 

which is basically this area here just off Villa Rica, all the way to 

the end of the project, which is the majority of the project, since 

you are on new location, you can control the curb cut and the access point, and our Board of Commissioners had designated this 

area to be limited access. So there was to be—with the exception 

of land-locked properties—there would be no access points along 

that section of roadway, which is—in the design process, those type 

roadways you can do on new locations; it is very difficult to do limited access on widening off the center line on existing locations because you can see the many property owners along like this section 

of Villa Rica that would certainly need curb cuts. 

Mr. MCINTOSH. And if I remember correctly from some of the 

projects that we have looked at in my State, that allows you to 

have a higher rate of traffic back and forth and greater safety than 

when you have the access, because you have got fewer people coming on and off, it is a speedier way of transporting east to west. 

Mr. CROY. That is correct, you provide a more safe road, you also 

provide a better flow of traffic because you do not have conflicting 

turning movements along the roadway with the curb cut. 

26

Mr. MCINTOSH. OK. Now if you have got some charts there—and 

it was not clear to me, and having missed your testimony—there 

was an alternative three, which the staff had reported to me was 

the one the Corps preferred, when you had submitted your proposal 

for the Noses Creek, and I guess that is called the West Sandtown 

Road? 

Mr. CROY. Yes. I think the one that has been discussed primarily, certainly today, is an alternative of West Sandtown. Let us 

rearrange here just a little bit and set this one down. 

[Pause.] 

Mr. CROY. Again, to orient you on where we are at, Dallas Highway, this is, in this line here, is the preferred alternative. This 

alignment is the proposed alignment. What you see above here in 

this red is what has been called the West Sandtown alignment, 

which is one of the other alternatives, one of four alternatives, actually five, there was that variation of one, that were examined in 

this corridor. 

As you can see, the one difference between the Noses Creek and 

the Villa Rica West Sandtown is that the West Sandtown stays 

along an existing road pattern, either Villa Rica or West Sandtown 

until you get south of Macklin Road. Then the two projects are very 

similar, along the same alignment. 

Mr. MCINTOSH. And so for that portion of it, you would be required to have additional or many more access cuts into it? 

Mr. CROY. Due to the amounts of property, you would have to 

look at one or two alternatives. You would have additional curb 

cuts for the properties along the roadway, or you would have to buy 

the access rights along that section of roadway, at least all the 

properties that front the roadway, and have a greater number of 

relocations. You would have to look at one of the two alternatives. 

Mr. MCINTOSH. And how many relocations, I guess with each alternative, would you anticipate? 

Mr. CROY. If we purchased the access rights along the alternate, 

the West Sandtown-Villa Rica alternate, as you recall, I think we 

had approximately three on the Noses Creek. If we buy the access 

rights along West Sandtown, it would exceed 40. 

Mr. MCINTOSH. And if you do not buy the access rights, how 

many relocations would there be? 

Mr. CROY. It would be I think approximately a dozen, but then 

you would have 30 or something, close to 30 curb cuts you would 

have to deal with. 

Mr. MCINTOSH. And is that the entire route? So it is three compared to either a dozen plus the curb cuts or 40? 

Mr. CROY. That is correct. 

Mr. MCINTOSH. And then what is the impact on wetlands in that 

area? 

Mr. CROY. Well, the impact on the alignment along West 

Sandtown is relatively minor in regard to impacts. You do not get 

into any of the areas that we were bridging in here. Basically this 

green outlines the stream areas. Again, from memory, I think we 

have looked back at this alignment and could possibly have the 

wetland impact of the West Sandtown well under two acres. 

Mr. MCINTOSH. Was there any proposed mitigation with that alternative? 

27

Mr. CROY. No, we have not examined it other than that we know 

we have this same mitigation site in here would be available for 

the West Sandtown also. 

Mr. MCINTOSH. OK. 

Mr. CROY. This mitigation site is common to both alignments. 

Mr. MCINTOSH. And about how many acres is that, do you know? 

Mr. CROY. This particular area is probably—about half of the 80-

something acre mitigation is in this, so approximately 40 acres. 

Mr. MCINTOSH. OK. Thank you, I appreciate it, and my time has 

very much run out for questioning. But let me just say those judgments and tradeoffs are ones I very much believe we should not be 

making in Washington and that you all should be making here in 

Cobb County and in Georgia. But it helps me to eliminate some of 

the questions that you have had to ask and answer in that. And 

I will have some more questions later on. 

Bob, did you have anything else? 

Mr. BARR. Just two very quick followup questions. 

One, Jim, if you could for folks that are not familiar with some 

of the technical language, when you say mitigation, what do you 

mean? 

Mr. CROY. Well, basically when we have a transportation project 

and we have any issue, whether it is wetlands, historic structures, 

community; we basically have three approaches. The first is avoidance, try to miss them. If you cannot avoid them, then you try to 

minimize whatever that impact is. In other words, you do something to reduce the impact. The third is what we call mitigation, 

which means if you know you are going to have an impact like an 

embankment or a fill area in a wetland, then you do something to 

replace that impact, like you create a wetland somewhere else, you 

improve wetland that certainly may be improved by additional 

plantings or along those lines or you maybe do some upland protective buffering, so you do not have encroachment into other wetlands. So basically those are the three areas that we look at and 

mitigation being just one of the three. 

Mr. BARR. And you were just talking with the chairman about 

an area of mitigation there, you are not talking about a one to one. 

What sort of ratio are you talking about? 

Mr. CROY. Well, normally we do not have—at least we do not 

have a set standard here in Cobb, we look at each project a little 

individually and see what is available. We have had some projects 

where we have had, you know, four and five to one. This particular 

project, certainly we have three different types of mitigation, that 

being restoration, creation and upland buffering. And if you 

weighed them all together, it would be about a 10 to 1. Now obviously all three of those in the environmentalist’s eyes carry different weights because they provide different issues. One creates a 

wetland out of an area where there is not one or it had been one 

in the past and it has probably through agriculture been destroyed. 

Two, the restoration is basically you are making improvements to 

an existing wetland that may have been damaged primarily during 

agriculture. Or third is upland buffering which we feel is very important because it protects—it is the actual protection of a wetland 

area and does not allow any encroachment. 

28

Mr. BARR. But the bottom line is when you are talking in this 

particular proposal in terms of mitigation, basically the county here 

has proposed a ratio of about 10 to 1 in terms of mitigation. 

Mr. CROY. That is correct. 

Mr. BARR. For those areas of wetlands identified by the Corps. 

Mr. CROY. That is correct, sir. 

Mr. BARR. And that was rejected, so far. 

Mr. CROY. The permit application was rejected. Now in reviewing 

the permit application, the reason for rejection was not the mitigation plan. 

Mr. BARR. I understand. Thank you. Thank you, Mr. Chairman. 

Mr. MCINTOSH [presiding]. Thank you. 

Just let me close this session by saying I want to commend you 

and the county for doing a good job in working on these different 

alternatives, and Bob has impressed upon me the urgency of creating this transportation corridor for all sorts of reasons here in the 

county. And to my way of thinking when you can get a tradeoff 

where you have affected only three families instead of potentially 

40 and also seem to be doing a good thing for the environment, 

where you create 10 additional acres of wetland for every 1 that 

is impacted; that is a good deal. We see a lot of plans coming 

through where it is one for one in terms of what people are willing 

to do on the environmental side. 

So I want to commend you for the good work. We will hear from 

the Corps later on some of their thinking and I would hope that 

in the coming months that we could get a good resolution to this. 

Mr. CROY. Thank you. 

Mr. MCINTOSH. Bob, did you have any further questions for this 

panel? 

Mr. BARR. No, thank you, Mr. Chairman. 

Mr. MCINTOSH. OK. Let me say thank you to all the participants 

on this panel. I appreciate you coming today, and your input. We 

may have some additional questions and I will ask unanimous consent, if Bob will agree, to keep our record open for the next 10 days 

and give you a chance to answer any of those that we may have 

for you at a later time. 

Thank you very much for coming. 

Mr. WILES. Thank you, Mr. Chairman. 

Mr. MCINTOSH. I will now call forward our second panel. And I 

would ask that each of you please rise. 

[Witnesses sworn.] 

Mr. MCINTOSH. Thank you very much. Let the record show that 

each of the witnesses answered in the affirmative. 

Our first member of this panel is Mr. Robert Dabbs, who is a 

local developer and owner of Dabbs Construction Co. Mr. Dabbs, 

thank you for coming, and if you would please share with us a 

summary of your testimony. 

29

STATEMENTS OF ROBERT E. DABBS, DEVELOPER, DABBS CONSTRUCTION CO.; GRADY BROWN, CATTLE RANCHER, ACCOMPANIED BY STEVE WOODALL; AND WAYNE SHACKLEFORD, 

COMMISSIONER, GEORGIA DEPARTMENT OF TRANSPORTATION 

Mr. DABBS. First, I would like to thank the committee, Mr. 

McIntosh, Mr. Barr, for giving me the opportunity to present my 

problem to somebody that I feel like can help us, and especially to 

Karen Barnes, who has been a big help since I finally got the number of somebody I could call that I could talk to about my problem. 

I am a small real estate developer from Cartersville, GA, which 

is in Bartow County. I have been in the development business for 

25 years and have never before been in violation of a wetlands regulation. I, with two partners, have employed approximately 165 

workers that were going to build approximately 20 something 

homes once we start our subdivision. This is a small residential 

subdivision called Ivy Chase on Shinall-Gaines Road in Bartow 

County. 

Because of disturbing 0.63 of an acre of wetlands in a development of a 111-acre residential subdivision, the Army Corps of Engineers has shut down our project for approximately 3 months, which 

forced us to lay off approximately 165 people that would be building homes on our property, that has either had to go somewhere 

else or had a delay of time without work. We have spent thousands 

of dollars providing information to the Corps of Engineers and as 

you see, we have had no response. As a result, my partners and 

I are on the brink of financial ruin if we do not get something done. 

In fact, one of my partners, was a working partner in this project, 

and his wife had quit her job as a sales agent because she was 

going to be handling all our sales. He was doing the grading and 

once this stopped, she had lined up approximately 20 buyers that 

was lined up for a builders draw the following week that they shut 

us down. It has totally put her out of work with no income at all. 

It has put Mr. Hansard out of work, he is down now to only having 

one piece of equipment left. Fortunately, Mr. Temples and myself 

did have—we have got some other income that has kept us going, 

but with a project of this size, it is going to be a financial disaster 

for all three of us. 

Let me tell you how all this began. After retaining a soil scientist 

and a civil engineer to conduct development feasibility studies and 

reports, we purchased the property for this development project on 

April 19, 1996. The property consists of 111 acres. 

After purchasing the property, we complied with all local and 

State regulations to plan for the development, including State and 

local permits. We did not realize that any of the property consisted 

of wetlands within the jurisdiction of the U.S. Army Corps of Engineers. We did not realize this because there was no standing water 

on the property and because the National Wetlands map provided 

by the U.S. Government to display wetlands showed no wetlands 

on our property. Furthermore, we were not advised by our soil scientist, who we had hired, or the civil engineer or any of the local 

government people that we had to go through to get all of our land 

disturbance permits and especially the Bartow County Health Department. 

30

Like I say, I have been developing 25 years. We did not file a 

nationwide permit because I had never heard of it. None of the people that we hired to do our professional work told us about it. I 

have talked with them since this come up and they say they did 

not know we was supposed to either. At this time, I still do not 

know if we are actually supposed to. The law is very confusing to 

me even after I got involved in it, that we went from 10 acres to 

3 acres and to 0.3 of an acre as to where they have jurisdiction. 

We are showing now that we have less than 2 acres. So I am not 

even sure today if we are supposed to. The 0.3 of an acre supposedly took effect in February of this year. 

But after receiving all local approvals to do so, we graded and 

paved streets, constructed drainage ditches and culverts. We enlarged a pond on the property from about one-half acre to about 

21⁄2 acres. 

The soil scientist had identified certain soil types and showed 

that on the western tip of this property that there could possibly 

be some wetlands area. Due to that, we did not do any part of our 

development as being on that piece of property. 

After the subdivision lots were developed and all was done, we 

went to get our last permit that we had to have from the Bartow 

County Health Department, which had visited this property numerous times, had us to dig holes on approximately every lot in the 

subdivision and then when we were getting our last approval or 

disapproval on certain lots, they had at the end of the letter that 

they had—in additional, they had asked the Corps of Engineers to 

come inspect this property. For some reason, we are the only ones 

that they have ever called the Corps to come inspect and up to 

now, are still the only ones. 

I asked them at the time did they think we had any wetlands 

or did they know that we were supposed to file a nationwide permit 

and the employee of the Bartow County Health Department told 

me that he did not even know we were supposed to. So I have a 

real problem as to why they waited until we had completed the 

project, but they did. 

Upon being advised of the requested site inspection by the Corps 

of Engineers on March 17, my partners and I immediately and voluntarily ceased all development of the subdivision and awaited the 

site inspection results. 

During the site inspection, representatives of the Corps of Engineers verbally advised that the property could contain wetlands 

that had been disturbed and that we were in violation for failure 

to obtain a required permit from the Corps of Engineers. We were 

told that we were required to continue our voluntary cessation of 

the development and that we would receive a written Cease and 

Desist Order from the Corps of Engineers advising us of further requirements, proceedings and dispositions. 

On April 3, 1997, the Cease and Desist Order was issued and 

mailed to us. We had, immediately upon realizing that we were 

possibly in violation of Federal regulations, retained another engineering firm with the expertise that specialized in wetlands regulations. We were required to continue the cessation of development 

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neering firm began the necessary site investigations to determine 

what, if any, wetlands had been disturbed. 

As required, our first response to the Corps of Engineers was 

submitted on April 11, 1997. We responded that we had voluntarily 

ceased all development work and intend to cooperate with the 

Corps of Engineers and comply with all applicable Federal regulations. 

Our second required response was filed by May 3, 1997 and consisted of the following information. 

A wetland delineation of the project showing areas of impact and 

areas to be impacted including detailed drawings. 

A topographical map of the area showing elevations as they existed prior to the placement of any fill material. 

Written explanation of the necessity of placing fill material in a 

wetland area in lieu of a high ground location. 

Information on when development work began. 

Indication of the source, type and quantity in cubic yards of fill 

material used to date, the date any work was last done, the type 

of equipment being used and the purpose of the work. 

Copies of all approvals received from any other Federal, State or 

local agency for this work. 

Copies of deeds for the property, names and addresses of all 

property owners and developers involved in this project. 

Explanation as to why notification of the proposed activity was 

not sent to the Corps of Engineers. 

The wetland delineation of the project showing areas of impact 

and areas to be impacted prepared by our new engineers and submitted to the Corps of Engineers on May 3, 1997, concluded that 

0.63 of an acre of wetlands was impacted. 

Even as I speak, I am not sure, since this work was done during 

1996, if disturbing 0.63 acre of wetlands required a permit from the 

Corps of Engineers. Here is what is most frustrating in dealing 

with the Corps—our engineer advised me that he has made repeated telephone calls to staff members of the Corps, but can acquire no information as to when the Corps will make any determination as to our project. Corps staff has told our engineer that 

they are so overworked that they do not know when they can even 

look at the information we have provided them. 

Our engineer even urged the Corps staff to release the Cease and 

Desist Order on the other 110 acres which are not wetlands, but 

to no avail. Again, I understand the response was they do not have 

time to even look at this information. 

In an attempt to get a response, our engineer, on May 22, 1997, 

wrote the Corps staff member assigned to this project that since 

less than 1 acre of the 111-acre project had been disturbed, based 

upon the submitted delineation, ‘‘we have advised our clients to resume work except in areas within 50 feet of the wetland defined 

in our delineation.’’

Again, to date, we have had no response from the Corps of Engineers. Despite the advice of our engineers, we have not resumed 

work on this project outside the wetland areas. The reason that we 

have not is that the Cease and Desist Order still is in effect, which 

threatens civil fines of up to $10,000 per day of violation, criminal 

32

fines up to $50,000 per day of violation and imprisonment along 

with the injunctive relief, including restoration of the area. 

We are not that brave or foolish, whichever the case may be. 

But in the meantime, because of disturbing 0.63 of an acre of 

wetlands that may or may not be a violation to Federal regulations, 

the development of our entire 111-acre residential subdivision has 

been shut down for approximately 3 months while our expense continues. We have spent thousands of dollars providing information 

to the Corps of Engineers. Our development and interest expense 

has continued to mount up. As I speak, we have spent approximately $25,000 out of our own pockets for interest on an approximately $850,000 that we have put into this project, plus the work 

that the Corps has asked us to do which we have submitted to 

them. And there is no end in sight because we could absolutely get 

no answer. Apparently the Corps of Engineers has no requirements 

establishing time limits within which they have to respond to us. 

We had a 10-day requirement to respond to them and a 30 day, 

which we met. 

I do not dispute that wetlands need to be protected, but at what 

cost or what kind? The land that we are talking about is land that 

never held any water, to my knowledge, but it only had a green 

plant that is called a wetland plant. We actually made more water, 

we made a half acre lake into a 21⁄2 acre lake, we built a dam 

around it. We have used this for our retention pond, which is required by the Bartow County Land Disturbance Permit. We have 

graded the property where the entire water runs into this pond or 

lake and will only go out where we have pipes that go out of it that 

is made where the only amount of water that can go through that 

pipe is the same amount that had went off the property before. 

This is a piece that will keep water in it all the time because we 

dug it 10 foot deep and used the dirt to make a dam around it. So 

we provided more water in that area for birds and ducks and stuff 

that is on the pond now. 

In closing, I would like to say that I do not think the Corps of 

Engineers staff members are not caring, diligent, hard-working 

people. Maybe they have too much to do and too little to do it with. 

I am asking that during this deliberations, you consider these 

things. When new and existing regulations are being enacted and 

enforced, some consideration be given to not just impact on wetlands, but to impact on those who are enforcing the regulations and 

those upon whom they are being enforced. 

To me, I have run a construction company. If all of a sudden my 

number of houses to build or develop would go up hundreds of permits, I could not get to it. From what I see, the Corps is facing is 

you have gone from 10 acres to 3 acres to 0.3 of an acre, so you 

have given these people thousands more projects that is going to 

be called on for them to inspect and evidently from the numbers 

that I see that work on this in Georgia, they do not have the staff 

to even do it when we do have a problem. 

Again, I would like to say that I appreciate this opportunity to 

express to the subcommittee and feel like that maybe through this 

that we can get some help to do what we have to do to make right 

of the land we disturbed. We have a theory of taking some area 

there and planting some wet weather plants back to make up for 

33

what we destroyed there, or we can fill the lake back in to a certain 

degree to make it to where it would be just a very small amount 

of water where the weeds can grow, where now we have a nice 

looking lake there. But whatever it is, we want to know. And we 

do not know. 

Thank you. 

Mr. MCINTOSH. Thank you, Mr. Dabbs. Maybe we will find out 

later today. 

The next witness is Mr. Grady Brown and his son, Steve 

Woodall, will be reading his statement. Thank you Mr. Brown and 

Mr. Woodall for coming. 

[The prepared statement of Mr. Dabbs follows:]

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Mr. BROWN. We do want to thank you for inviting us, Bob, committee. We feel like we have got a chance now to tell our side of 

it, which we have not had a chance before, and we appreciate it, 

we want you to know. And this is my son-in-law, Steve Woodall. 

I am going to let him read it for me. 

Mr. WOODALL. I am his son-in-law and I have been in his family 

for almost 30 years. 

The property we are dealing with is property we used to cut hay 

and bush hog on, so we have a long history of knowing what this 

property was before these problems were artificially developed. 

I am going to read his statement. His statement begins with:

My name is H. Grady Brown and I am a resident of Carroll County, Georgia. I 

am a retired president of a Villa Rica, Georgia hosiery mill and am a landowner 

and cattle rancher. I worked my way up from the floor of the hosiery mill to become 

owner and president of my own company. I spent my weekend and evenings building my cattle farm. 

Today, I want to tell you about a tough situation I have been forced into, stuck 

between the Georgia Department of Transportation and the U.S. Army Corps of Engineers. Essentially, the Georgia Department of Transportation in advertently flooded some of my farmland, creating a wetland in the eyes of the Corps. Now the Corps 

will not allow the Department of Transportation to fix the problem they have created. I am stuck with useless, swampy land because the Corps insists it is a protected wetland even though it was created by accident. 

My farm is located in Villa Rica, Georgia, a once rural area of Georgia which is 

quickly developing as Atlanta expands. It has been hard, but I have worked to keep 

my land agricultural and undeveloped. A portion of my farm, which is located behind my house, lies alongside Highway 78, just west of the city of Villa Rica. The 

rear portion of this property has a creek running through it which provides water 

for my cows and my farming operation. I have owned this land since the mid-1940’s 

and have cut hay and kept cows along the banks of the creek since that time. 

In approximately 1959, the Soil Conservation Service came through and dredged 

and cleared the creek running along and through my property in order to better develop the watershed for a water reservoir that was built in Temple, Georgia. This 

lake, Lake Buckhorn, was fed in part by the creek running through my land. 

When the Service did this, any wetland along the creek was drained. During the 

mid-1980’s, the city of Villa Rica and the Georgia Department of Transportation 

built a road off of Highway 78 to open up an industrial park for the city. That road 

cut across my property and crossed the creek. The City and the Department built 

a bridge over the creek so that my cattle could pass under it and they could continue to graze on the western portion of my farm cutoff by the new road. The continued use of this portion of my property was essential to my agreement to sell the 

right-of-way for this road. 

Unfortunately, this work diverted the path of a small north-south feeder creek or 

drainage ditch which ran into the larger east-west creek running across my property. The Department actually put a dog-leg turn in this small creek. This diversion 

caused a buildup of water and silt on my property and began to cause a swampy 

area on the 10-acre field which was left on the western side of the new road across 

from my home. This swampy area was further enlarged as industrial development 

began in the new industrial park. A large distribution facility was built on the property adjoining mine. The driveways going into the property further diverted and 

blocked the small feeder creek where it ran into the larger creek crossing my property and added more water and silt to the problem. By the late 1980’s, the 10-acre 

field had become a wet, grown up swampy area. I could no longer cut hay or keep 

cattle on the property. 

Around 1990, I began to contact the Georgia DOT and the city of Villa Rica to 

discuss the problem which their development had caused. After many complaints 

and the threat of legal action against the Department and the City, the Georgia Department of Transportation admitted it was their fault and agreed to dig out the 

channel of the small feeder north-south creek to drain the area which had become 

swampy, to try to alleviate the damages caused. They did this in approximately 

1995 and after they did this, the area started to get better, to drain and go back 

to the farmland it had previously been. However, soon after the work was done to 

alleviate the blocked feeder creek the Georgia Department of Transportation was 

contacted by the U.S. Army Corps of Engineers. Apparently someone had complained that the Department and I were trying to drain wetlands. 

38

The U.S. Army Corps of Engineers threatened the Georgia Department of Transportation with stiff fines and penalties if they did not reblock the now cleared feeder 

creek. In response to this, the Department came back in and built dams all along 

the path of the feeder creek. I think there are approximately 12 of them that they 

have built. Now the water from the adjoining property does not have a path to get 

into the larger east-west creek which runs along my property. It simply spreads out 

over my land, causing a swamp in an area which was once open fescue pasture. It 

has made my land useless and has created an ugly eyesore since it has basically 

been condemned as wetlands. No one can see my land as the trees and grasses continue to grow. 

My only desire is to return the property to the way it was so that I can use it 

for my cattle and to cut hay. Additionally, this land is located now in an industrial 

park in the growing city of Villa Rica. It has been my desire to leave this property 

to my children and grandchildren, expecting one day that they could develop it. 

Property adjoining this field is selling for in excess of $25,000 an acre. The property 

is now useless and I do not understand how the actions of the City, the Department 

of Transportation and the adjoining landowners to develop property around my land 

can be allowed to create a situation which takes the value of my land. 

I do not want to sue the Department, the City and my neighbors. I simply want 

my land returned the way it was. The simple way of doing this is to clear the feeder 

creek and allow me to drain the property. I do not want to change the land from 

how it was when I bought it, I simply want it returned to pasture land running 

along the banks of a creek.

Thank you. 

Mr. BROWN. Thank you for your time. 

Mr. MCINTOSH. Thank you both, we appreciate that and we will 

have some additional questions for you at the end of the panel. 

Our final witness on this panel is Mr. Wayne Shackleford, who 

is the commissioner of the Georgia Department of Transportation. 

Mr. Shackleford, welcome, thank you for coming. 

Yes, Mr. Barr? 

Mr. BARR. Excuse me, Mr. Chairman, I would just like, for your 

further background, to state that during the time that I have had 

the honor of representing the Seventh District in the Congress—

the same length of time as you have had that pleasure and honor 

with the Indiana Second District, we have worked very closely with 

Mr. Shackleford, with the State DOT, with Mr. Max Golden, who 

is our representative from the Seventh District, with Chairman 

Johnny Gresham, who is from this county, and have found Mr. 

Shackleford, the folks that work in his office and the Board extremely responsive to working with us to try and identify and work 

through problems and it is a particular honor to have Mr. 

Shackleford here today from his very busy duties on behalf of the 

people of Georgia. 

Mr. MCINTOSH. Thank you. Thank you very much, Mr. 

Shackleford, for joining us. 

Mr. SHACKLEFORD. Mr. Chairman, Congressman Barr, I want to 

thank you for the opportunity to meet with you today and share 

with you our deep concerns about a process that needs re-engineering, a process that has lost its customer focus. I refer to the process 

of managing and regulating our Nation’s water resources. 

The Georgia Department of Transportation makes every effort to 

comply with our Nation’s wetland policies. We believe in these 

goals. However well intended these goals are, these policies are, the 

administration has become an impediment in meeting our State 

transportation and our economic needs of our State. What we need 

is a renewed Federal and State partnership which recognizes the 

39

value of all our resources, both natural and manmade, that are essential to sustaining our quality of life. 

The Clean Water Act was intended to protect this Nation’s water 

resources. However, the Corps of Engineers and the Environmental 

Protection Agency have greatly expanded their jurisdiction and created a bureaucratic maze through Memorandums of Agreement 

with other Federal agencies. Thus, in effect, the Federal agencies 

have extended the extent of congressional law. 

For example, one Memorandum of Agreement between the Corps 

of Engineers and the Fish and Wildlife Service allows the Fish and 

Wildlife Service to request denial of the permit based on the 

premise that the wetlands are of national importance. Mr. Chairman, Congressman Barr, there is no definition of national importance in the law. Please note that in the Memorandum of Agreement between the Corps and the Fish and Wildlife Service, which 

was provided to you, the purpose is to minimize, to the extent practical, duplication, needless paperwork and delays in the issuance of 

permits. This Memorandum of Agreement has the exact opposite 

effect. 

Furthermore, the Fish and Wildlife Service is able to control the 

Corps of Engineers’ actions because of a process that we are required to follow. Our Department provides an extensive information package to the Federal agencies that provides the Department’s best alternative and a purely wetland minimization alternative. The wetland minimization alternative which we are required to do by this process values wetlands above homes, businesses, churches, schools, historic resources and other environmental considerations. 

The Department meets onsite with the Federal agencies to answer questions concerning the proposed alignment and impacts. 

Unfortunately some representatives show up unprepared and thus 

in turn adversely affects the service that is our responsibility to 

provide to our customers and theirs as well. 

After the field visit, the Federal agencies are supposed to submit 

timely comments. However, our Department is currently waiting on 

comments from the Fish and Wildlife Service on over 15 projects 

for which the field visits were held as long as 15 months ago. The 

reason given to us for the lengthy delays have been lack of personnel and time. We believe that the real reasons are lack of ability 

to make decisions and a refusal to accept validity of our analyses. 

Mr. Chairman, Congressman Barr, this process has created a bureaucratic nightmare resulting in enormous delays and since 1989, 

we estimate an additional cost of over $100 million in our State 

alone. For example, Riverside Parkway widening in Rome, GA. We 

have been attempting to obtain a permit for over 6 years. The current roadway is a dangerous two-lane facility which has experienced numerous accidents. As recently as 1995, this stretch of road, 

which is a mere 11⁄2 mile long project, has experienced 35 accidents 

resulting in 10 injuries to people. 

Our desire would be to fill only seven-tenths of an acre of wetlands which we have offered to mitigate with 4.1 acres of created 

wetlands on the site, which will result in a 25 percent net increase 

to the stream basin. We have shown no industrial pollution to 

occur in the project impact area. Yet we have been asked by the 

40

Federal agencies over and over for additional information. Due to 

the regulation process that allows Federal agencies to never come 

to closure, we cannot construct this most needed project. 

The Homer bypass in Banks County, GA. The alignment for this 

project had been developed over a 12 year period in consideration 

of a reservoir proposed by local government and right-of-way was 

subsequently purchased at a cost of $1.6 million. However, the permit was denied by the Corps. An alternate to avoid wetlands would 

have displaced 2 businesses and 10 homes at an additional cost of 

$3 million. 

Mr. Chairman, Congressman Barr, all of this additional cost to 

avoid only 71⁄2 acres of wetlands which we offer to replace with 

56.9 acres of wetlands. 

You have heard the Villa Rica, GA case from Mr. Brown. He is 

a victim, caught between our responsibilities to maintain a roadway and a Corps of Engineers who will not allow us to do so. Yes, 

we have in fact put the check dams back in place. Yes, we have 

continued to divert water from its natural flow along that road to 

the main tributary to that stream he described, to a minor tributary. 

Mr. Chairman, Congressman Barr, we have had numerous problems with the Corps wetland regulatory policies. However, we have 

had the opportunity to work together on some successes as well. 

To date, our department owns approximately 6,700 acres of wetland mitigation throughout our State scattered on about 60 locations. For each acre we fill, we are currently replacing it with approximately 5 acres. Still, some of the Federal agencies cry that we 

do not do enough. 

Mr. Chairman, Congressman Barr, there are not enough success 

stories, but we believe that can be changed. Congress has been 

struggling with reauthorization of the Clean Water Act for several 

years. This reauthorization should address the division of the 

Corps and the U.S. Environmental Protection Agency. Unnecessary 

Memorandums of Agreement should be eliminated. Let the law 

stand on its own merits. 

The timing of this hearing could not be more appropriate. Please 

note the letter we provided that we were just advised in May 1997 

that the Fish and Wildlife is withdrawing from participating in our 

field reviews. These field reviews are the actual cornerstone for resolving our differences on projects. Could it be that some Federal 

agencies do not want to resolve disputes in a timely manner and 

to partner with their customers? 

The Clean Water Act should be amended to require the Federal 

agencies to meet us halfway and to provide practical alternatives 

instead of asking us as applicants over and over and over for additional and unnecessary studies. This could eliminate the lengthy 

string of requests by Federal agencies, substantially shorten the 

time to resolve issues. 

In closing, Mr. Chairman, Congressman Barr, we believe that 

our Department and the Corps of Engineers can work together to 

provide a transportation system and better protect wetlands. But 

only if the regulatory procedures and policies can be streamlined.

41

I want to share with them in some of the successes that we have. 

Preservation such as you have seen today—Phinzy Swamp in Augusta; Bowen’s Mill Pond on U.S. 84—and I would like them to 

share with pride in our transportation successes. 

And I thank you for the privilege of appearing. 

[The prepared statement of Mr. Shackleford follows:]

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Mr. MCINTOSH. Thank you very much, Mr. Shackleford, that is 

enormously helpful in terms of understanding. I have got several 

questions that your testimony raises. 

I appreciate all the members of the panel, and now we will go 

and alternate off on questions. Actually let me start right away, 

Mr. Shackleford, with you. 

You mention the Fish and Wildlife Service has indicated in a letter to you, and I think we have got a copy here that I will submit 

into the record, that they no longer will participate in the field reviews. Is that—and I have not had a chance to see the letter—but 

is that a new national policy of theirs? And their absence in those 

field reviews, will that mean that the other agencies will be able 

to go ahead and make decisions without them? 

Mr. SHACKLEFORD. It probably means that the decisions will not 

be made without them. They could be. I think you know that U.S. 

Fish and Wildlife can ask the Corps to elevate to a higher level any 

decision the Corps is about to make that they do not concur in. So 

very honestly, I do not see that as an opportunity to speed the 

process up. 

Mr. MCINTOSH. Do you think it will inevitably slow it down? 

Mr. SHACKLEFORD. Yes, sir. 

Mr. MCINTOSH. And is that a final decision or is that something 

they are putting on the agenda at your next coordinating meeting 

in July? 

Mr. SHACKLEFORD. The letter to the Corps says that we will not 

be back. It is addressed to Necholus Ogden; ‘‘Therefore, I am going 

to withdraw the Service from the upcoming May 28–29 PAR, the 

Preferred Alternatives Report, and future PARs until we can agree 

on what they are intended to accomplish. I will utilize this saved 

time to address some of our PAR backlog.’’

Mr. MCINTOSH. We will put that on our agenda to find out what 

is going on. 

What would you say the major reforms are that could be made 

in this process to make it much more streamlined from your perspective? 

Mr. SHACKLEFORD. Well, I think if we are going to make wetlands preservation reach the potential that it deserves, that true 

partnering is going to have to exist; that we have got to recognize 

that in addition to the preservation of wetlands, we have the responsibilities to preserve historic resources and to share impact on 

our people, their homes, their churches, their schools and businesses. Wetlands banking, mitigation banking—you heard the discussion earlier about how one compensates someone whose rightof-way is taken, pay them for the value of what you are taking, pay 

them for the consequential damages on the remainder, mitigate the 

impacts on their lives as best you can. 

Mitigation is a clear and viable or practical alternative to the 

wetlands issues. When we are mitigating at the ratios we are mitigating, it should not be months and years while decisions are 

made. 

Mr. MCINTOSH. And to speed up the process so everyone can get 

their answer. And do you think a banking approach would work 

where there would be already mitigated areas that could then be 

offset against future projects? 

52

Mr. SHACKLEFORD. I very much do. 

Mr. MCINTOSH. Mr. Dabbs, let me ask you, you mentioned that 

you and your engineer had not even received a telephone call back 

from the Corps of Engineers. In the written testimony, does that 

remain the case? 

Mr. DABBS. Our engineer, who is David Bleetman with Blue 

Ridge Engineering, he has made repeated calls to the Corps of Engineers and has asked them when would they be able to come by, 

visit the property as they stated they would need to do, and review 

it with him and then tell us what was necessary to do to resolve 

the problem. And the answer that he gets from them is that they 

are so overworked or so far behind, they have got other projects 

that are ahead of us and that they cannot give him any date as 

to when they might be able to come back or even be able to review 

the material, which this is one of the books that we were required 

to send to the Corps. 

Mr. MCINTOSH. And his conclusion is that you are not even 

under the jurisdiction of the Corps because you would be covered 

by the national permit for small areas? 

Mr. DABBS. No, I made the statement that I am not sure that 

we are. But due to the fact that at one time it was 10 acres, it was 

reduced to 3 acres and now it is reduced to 0.3 of an acre; we started this project in April 1996. I am not sure and have not been able 

to find out as to when the acres were reduced. We have continuously, through our engineer making phone calls to the Corps, the 

local Corps here in Atlanta, he has asked them would they release 

the 100 acres. Everything, as I stated awhile ago, that he has determined to be in the wetlands, to where we could go on with our 

development, and has been refused, that they could not release any 

of it until they had time to study the material and to visit the property. 

We have a nice entrance that we have built going into the subdivision. We have landscaped it with nice plants. We were in the 

process—we had got our irrigation system set in that bed of plants, 

we lacked 10 feet of pipe of tying it into our sales trailer and the 

water meter that is adjacent to it. I even asked him to ask them 

could we, about a month ago, for the first time since last fall, we 

had some weather where the land got dry and these plants were 

hurting for water, I said ask them can we just connect our pipe, 

we have got to run 10 feet to where we can water these plants. We 

have got $1,000 or whatever in them and we hate to see the plants 

die. And he has even refused that, that any work being done there 

was subject to the $10,000 a day fine or $50,000, which you know, 

that would even ruin a rich man, let alone somebody like us. 

Mr. MCINTOSH. In your estimation, why are they refusing even 

to make common sense determinations like that? Is it an effort to 

increase the monetary punishment? 

Mr. DABBS. They said they could not do it until they had time 

to come back and visit the property or review the property. 

Another problem that I have got is we have available to us in 

Bartow County, it is a national wetlands map, which shows property that could potentially be wetlands. And of course I was told 

by the people that visited the property when I showed them this 

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lands on it, that this did not mean anything, that this was just a 

guideline. So, why print them? 

Mr. MCINTOSH. By the way, what was the plant on the location 

that they decided was a hydrophilic plant? 

Mr. DABBS. Where were they located? 

Mr. MCINTOSH. No, what type of plant was it? 

Mr. DABBS. All I know is I was told that this was a spreadly type 

weed that was considered on the endangered species. As far as 

knowing the name, I have no idea. 

Mr. MCINTOSH. That is interesting. The reason I asked is that 

when I was working with Vice President Quayle, we went into 

great detail about the manual and it became very clear to me then 

that the scientists do not even agree as to what areas are sensitive 

environmental areas to be protected as wetlands. And sometimes 

they go on the existence of plants where there is not necessarily 

water because the plants can live in dry areas as well. And so that 

leads to occasionally bizarre results where there is no water but 

they still call it a wetland. And I know that those problems continue to exist. 

My time has elapsed on this session. Mr. Barr, do you have any 

questions for this panel? 

Mr. BARR. Yes, thank you, Mr. Chairman. 

Mr. Dabbs, let me just make perfectly clear that I understand 

the situation here. Your engineers have told you that you can resume work on the project outside of the wetlands area, but you 

have not done so. Have you actually been threatened with criminal 

prosecution if you move forward? 

Mr. DABBS. Oh, yes, I have, with the letter that I got from the 

Corps of Engineers. He advised me to go ahead back to work. He 

felt like—I think his feeling was that this would maybe enact the 

Corps to respond to us and try to get ours finished up. But he has 

advised me that since he wrote that letter, he has had no information come from them, I have had none and neither one of my partners. But there is no way that we can take a chance to go in there 

and do anything now without being subject to a $60,000 a day fine 

or being put in prison. 

Mr. BARR. Mr. Brown, has there been any threat of throwing you 

or State DOT in jail as part of your efforts to just get your property 

back the way it was? 

Mr. BROWN. I did not take it that way, but they did tell the DOT 

if you do not put—plug these ditches up, we are going to fine you 

$125,000 a day and of course the DOT did not want to have to pay 

$125,000—they made them come up there by telling them they 

were going to charge $125,000 a day. 

Mr. BARR. Thank you. 

Commissioner Shackleford, I think I have the amount right here. 

I think in your presented testimony you indicated that since 1989, 

you estimate just that your Department alone has incurred a cost 

increase of over $100 million as a result of inflation and changes 

in project scopes due directly to the delays that you all have experienced. Where does that $100 million come from? Do you all just 

make that up out of thin air? How is that going to be paid? Is it 

the taxpayers of Georgia that are having to foot that bill? 

54

Mr. SHACKLEFORD. Yes, sir. Mr. Congressman, there are only two 

sources of motor fuel tax funds in our budget, the Federal Highway 

Trust Fund and the Surface Transportation Act, the Intermodal 

Surface Transportation Efficiency Act of 1991 and Georgia’s Motor 

Fuel tax. There is a third source of revenue in the Governor’s Road 

Improvement Program and those are general obligation bonds since 

1991, about $125 million a year. Each year that the delay drags on 

on a permit carries with it the increased right-of-way costs, the increased construction costs, a very severe impact on lives. People 

who are waiting for a decision cannot plan the rest of their lives. 

That is something that bothers me greatly, sir. 

Mr. BARR. Is $100 million important to the people of the State 

of Georgia or is that an insignificant amount? 

Mr. SHACKLEFORD. It is a very substantially important amount 

to the people of the State of Georgia, sir. 

Mr. BARR. Mr. Shackleford, in focusing—I know you have expended a great deal of time in trying to work with Mr. Brown and 

resolve the situation as he described it. In your view, do you believe that the wetlands created on Mr. Brown’s property were the 

result of State DOT’s normal maintenance activity on roadside 

ditches? 

Mr. SHACKLEFORD. Those wetlands were created when a driveway was installed without a side drain. The water that normally 

traveled down that road to the lower stream then was diverted 

down his driveway across the properties and created the new area 

of wetlands. There is no question but what they were created by 

the Department of Transportation and the lack of a side drain at 

that driveway, sir. And it was the correction of that issue that led 

to the actions against my Department. 

Mr. BARR. We sometimes have a tendency to focus on sort of the 

big picture and sums of money, but you touched on something else 

that I think, and I want to make sure on this, is important to your 

work and the work of your commissioners. And that is the public 

safety. You spoke specifically I think about that with regard to a 

project that is also in the Seventh District and that is the Riverside 

Parkway widening in Rome, GA. 

Could you just clarify, is the primary reason why you all have 

sought to correct that situation there simply for the public safety, 

the safety of people to travel on that relatively short stretch of 

highway? 

Mr. SHACKLEFORD. Yes, sir, it is a mile and a half in length and 

would provide a divided roadway, substantially reducing danger to 

lives. You know the numbers, Congressman, our interstates, our 

limited access highways, are five times as safe as county and city 

roads and streets on the national average. Our other State routes 

are twice as safe. We have a need. You heard my testimony on the 

number of wrecks and the number of injuries. It is that simple. 

Mr. BARR. Is the—let me also clarify with regard to your testimony exactly what you are saying here. I do not read your testimony or interpret your testimony as saying that the issues that are 

raised in trying to protect as part of the overall equation here wetlands in our country are to be ignored. 

Mr. SHACKLEFORD. Oh, I very much—I began my testimony by 

saying we totally subscribe to the fundamentals, we very much beVerDate Dec 13 2002 11:18 Apr 01, 2003 Jkt 010199 PO 00000 Frm 00058 Fmt 6633 Sfmt 6602 W:\DISC\45478 45478
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lieve in it, we are very proud of what we have done at Phinzy 

Swamp, we are very proud of a 1,300 acre mitigationsite on the Altamaha in Long County mitigating 129 acres on U.S. 341. We are 

very proud of 443 acres in Bowen’s Mill Pond. We totally have that 

responsibility. We want to be a part of the solution, we want to 

share with the environmental agencies in pride in the protection of 

those resources. We would like them to share in the transportation 

solutions that make this great State and this great Nation competitive in a global environment. 

Mr. BARR. So your position is that the notion and the philosophy 

underlying the Federal law that does protect wetlands is good and 

it is sound, but the process that brings us to this situation today 

where we have these delays, the threats of our citizens being put 

in jail, has really become an impediment to the effective use of the 

wetlands law itself. 

Mr. SHACKLEFORD. You can be assured putting those check dams 

back in that road made more sense to me than becoming the victim 

of a civil fine or criminal penalties. 

Mr. BARR. Well, we much prefer to have you here as a free citizen instead of in shackles as well, Mr. Commissioner. 

Mr. MCINTOSH. Who is Bill Phillips, by the way? He is the man 

who received the letter. 

Mr. SHACKLEFORD. Yes, and he is one of my staff people. 

Mr. MCINTOSH. One of your staff people. 

Mr. BARR. Just one other thing briefly to followup on a question 

the chairman had. With regard to these Memorandums of Agreement or Memorandums of Understanding that seem to now, as you 

have indicated, be interjected into this process and really have led 

to further delays, is this a new phenomenon that you are seeing 

or is this a problem that you have witnessed for quite some time? 

Mr. SHACKLEFORD. Mr. Congressman, the Corps of Engineers is 

a victim of the process. They are prisoners of the process. They 

have the legal responsibility but they have the clear knowledge 

that EPA can veto Corps of Engineers and the other Federal agencies can require it to be elevated. They need the clear powers to 

make decisions and take actions. 

Mr. BARR. Thank you. 

Mr. MCINTOSH. Let me followup on that question. So by implication, one way in which the Corps would be able to act more responsibly would be if we removed the EPA veto of their decisions on 

wetlands permits? 

Mr. SHACKLEFORD. My testimony was that they should be split 

out and let the law stand on its own merits. That is correct, sir. 

Mr. MCINTOSH. Let me followup on a slightly different train of 

thought rising from some of the questions Bob asked. You indicated 

some statistical analysis of the safety of interstate and limited access highways. 

Mr. SHACKLEFORD. Yes, sir. 

Mr. MCINTOSH. And State roads compared to local street traffic. 

Could you, for the different projects that we have discussed and 

that you have in your testimony and perhaps the east-west highway that we were talking about in the first panel, do a statistical 

analysis for us to determine how many anticipated lives would be 

saved by upgrading those? 

56

Mr. SHACKLEFORD. There is research that has been done under 

the guidance of the Transportation Research Board, the Federal 

Highway Administration that clearly spells out the data. In our 

own State, in the last year’s data, we have on the State system, 

1.68 fatalities per 100 million miles traveled. We have a much 

lower number on the interstate system, a substantially higher 

number on the county and city nondivided median roads. The number for my entire State during 1995 was 1.75, it is 1.68 on the 

State system. It is substantially lower than that on limited access 

highways. And you heard Jim testify in behalf of the alternative 

that is a limited access and the fact that the more driveways that 

are injected into the system, the greater the numbers. 

That statistical data can be analyzed. Cobb County is very capable of having their consultants do it, we are available to help them, 

sir. 

Mr. MCINTOSH. I would appreciate that and then you had mentioned a couple of other projects in your testimony. If you could 

provide that analysis for us. And we will keep the record open——

Mr. SHACKLEFORD. We can, sir. 

Mr. MCINTOSH [continuing]. For you to do that. 

Mr. SHACKLEFORD. Yes, sir. 

Mr. MCINTOSH. It is an aspect that sometimes is overlooked, although it is interesting, in other areas of regulation. In health and 

safety, we worry about concerns of increased statistical probability 

of say somebody who eats dirt next to a utility having cancer develop, and the 1 out of 10 million, 10 to the minus 7 is the statistical way of expressing it, and that triggers concern for us in the 

regulatory process. So it would be interesting to see what possible 

increased health risks are being caused in pursuit of this wetlands 

policy. 

Mr. SHACKLEFORD. And in your great State of Indiana, the numbers are the same, across this Nation. Limited access highways are 

the safest. Other well laid out roads, State roads are generally 

sounder than county and city roads. An operation like Cobb County 

as fundamentally adequate as their staff is, a Commission that is 

willing to make the hard decisions, to hire the proper consultants, 

their limited access roads have the same numbers that we have on 

ours on the State system, sir. 

Mr. MCINTOSH. Thank you very much. I appreciate it. I have no 

further questions. Mr. Barr, do you have questions for this panel? 

Mr. BARR. Just one followup. Mr. Dabbs, you talked about the 

construction jobs and I think you used the figure of 165 construction jobs. Are those folks unemployed at this time, that would be 

normally working and anticipated to be working on your project? 

Mr. DABBS. Some would probably be or they have had lost hours. 

The 165 I am referring to is we had lined up on April 3, the day 

we got the Cease and Desist letter from the Corps of Engineers, we 

would at this time be building 20 to 25 homes that we would have 

approximately two-thirds completed. The subdivision above us had 

none started, were not as far along as we were and as of today, 

they have probably got 15 homes built in there. It is according to 

which of our customers went somewhere else, found lots—which I 

know they had a period of time that they lost work. Some of them 

still may not have. So the 165 is an estimate from knowing how 

57

many numbers of people would be working on that project today, 

including plumbers, electricians, carpenters, painters and that 

type. Unless they found work other places, then they are out of 

work. 

Mr. BARR. But these are real people, men and women who are 

trying to be productive and work and need to support family and 

provide for the health and needs of their families, that are no 

longer able to do that, at least based on the work that your project 

would have offered to them. 

Mr. DABBS. That is correct. And like I say, I have living testimony, standing in the rear is Mary Hansard who is the wife of one 

of the partners that I said awhile ago was one of the working partners. She quit her job and had been working for months sending 

letters to builders to sell the lots to, that were going to build the 

homes. She had everything set up for the second week in April and 

when this came—she had to call all of them and tell them what 

had happened. Those buyers have gone other places. She has been 

totally—to my knowledge, has been totally out of income since that 

date because this is all she had lined up. Of course, we really felt 

like that we would get this resolved in 30 to no more than 45 days. 

But like I say, the last information or correspondence that has 

come to us as the developers is this Cease and Desist letter that 

the Corps mailed us on April 3. The only other information we get 

is where our engineer has made telephone calls to the local Corps 

office here in Atlanta. 

To answer the question that you asked me awhile ago more 

clearly, this is what it says in our Cease and Desist order: ‘‘We are 

required by Federal regulation 33 CFR 326.3 to issue a Cease and 

Desist Order to all persons responsible for or being involved in the 

performance of unauthorized work.’’ We come under that because 

we did not file a nationwide permit that we were not familiar that 

you had to, and still I am told you do not have to on certain lands 

unless you think you have got wetlands on it. If you do not, then 

it is a violation, to my understanding. Which we did not think we 

had any, if I had known about it. But we did it without knowing 

anything about it or any of our people that we had hired, the soil 

scientist, the Department of Health, the civil engineer, none of 

them told us this. 

But when you get a letter that says this, any work performed 

within our jurisdiction as of this date does not assure forthcoming 

authorization. In addition, any unauthorized work which you may 

perform may subject you to civil and/or criminal prosecution, civil 

fines of up to $10,000 per day of violation, criminal fines of up to 

$50,000 per day of violation and imprisonment are provided along 

with the injunctive relief including restoration of the area. 

To me, this is strong. There is just no way we could take a 

chance to violate this. It has just been a nightmare to us. What 

really scares me is when we talk to other people that have friends 

or somebody that something similar to this and they say you will 

be lucky if you hear from them in 12 months. 

I heard Mr. Shackleford make a statement awhile ago they have 

had a project they have been working on, have not had anything 

done in 15 months. That is what I understand. 

58

So, we are subject to be the same thing. Right now, we do not 

know, it might be 2 years before we hear a thing. We were in process of getting our final plats stamped by Bartow County. They have 

had to hold up that because of this, that they cannot—until we get 

relief by the Corps of Engineers. They do not know what they are 

going to make us do, so they have had to hold our final permit 

until we get relief from them. And we are just at a standstill. I 

mean my opinion, I always looked to the Corps of Engineers as 

being the people that help build lakes, that help to the needs of the 

people, boating, building camp sites, helping the American people. 

But what we are subject to here is just absolutely a nightmare and 

by taking the land like they have took our land for this period of 

time and not knowing when it will be released or if they will take 

it without compensation, as Mr. McIntosh said awhile ago. I mean 

this is something that the American people would only think that 

this could happen in another country, not in the free United States 

of America. 

Mr. BARR. Thank you, Mr. Dabbs. 

Mr. MCINTOSH. Thank you very much. Bob, did you have any 

further questions of this panel? 

Mr. BARR. No, Mr. Chairman. 

Mr. MCINTOSH. Thank you all for coming, I greatly appreciate 

your participation. And as I said, we will keep the record open and 

may have some additional followup questions for each of the panelists and particularly for Mr. Shackleford in following up on that 

one area of analysis. 

Let me now call forward our third panel, which consists of Colonel Grant Smith, who is the District Commander of the U.S. Army 

Corps of Engineers for the Savannah District. And Col. Smith, I 

understand that you also wanted to have two of your staff members 

testify as well. 

Col. SMITH. Well, they are only here to help assist in details if 

I need it. 

Mr. MCINTOSH. OK. Why do I not ask all three of you if you will 

please rise. 

[Witnesses sworn.] 

Mr. MCINTOSH. Let the record show each of them answered in 

the affirmative. And by the way, that is something that the full 

committee has asked us to do with all the panels, whether we are 

here on a field hearing or back in Washington. 

Col. Smith, obviously I appreciate very much your willingness to 

come, and particularly to sit through the earlier portions of the 

hearing where your agency and some of your own staff members’ 

work has been called into question. I appreciate your willingness 

to come and talk with us about that. Frankly, I have heard some 

very disturbing things, but I want to give you a chance to talk 

about those, to talk with us about where you see things going and 

some of the things that have happened in the past. And then Bob 

and I will both have questions for you and perhaps you can refer 

to your staff members if you wish to. And we welcome their participation really at any time they feel they can add to the discussion. 

But I do appreciate greatly your coming today and participating 

in this hearing. If you could give us a summary. We have been asking witnesses to take 5 minutes, but you have got a lot to say, I 

59

would imagine, so go ahead and take longer than that. And also, 

if you get a chance to, address some of the issues that were raised 

in those two earlier panels. 

STATEMENTS OF COLONEL GRANT M. SMITH, DISTRICT COMMANDER, U.S. ARMY CORPS OF ENGINEERS, ACCOMPANIED 

BY BILL HOUGH, DISTRICT COUNSEL; AND NECHOLUS 

OGDEN, CHIEF OF REGULATORY, U.S. ARMY CORPS OF ENGINEERS 

Col. SMITH. Thank you, Mr. Chairman and also Mr. Barr. 

As a matter of introduction, I am Col. Grant Smith, Commander 

and District Engineer of Savannah District, U.S. Army Corps of 

Engineers, headquartered in Savannah, GA. 

Savannah District is one of five districts in the South Atlantic 

Division of the Corps of Engineers and we already had introductions—accompanying me, I have my District Counsel, Mr. Bill 

Hough and our Chief of Regulatory, Mr. Nick Ogden. 

At this point, I would like to address several of the issues that 

have been brought by previous witnesses. I may miss some of these 

and certainly we can discuss this during question and answers. 

One of the items that was brought up earlier in testimony had 

to do with the Corps’ preference for the West Sandtown alternative 

on the county proposal for West Cobb Loop. I want to correct, at 

least from our view, that fact, in that the Corps has no preferred 

alternative with regard to the West Cobb Loop permit application. 

I would also like to address the issue of appeals. The Corps has 

recognized the need to have an appeal process associated with our 

regulatory work and we have established this process, it is currently awaiting resourcing. So the process would allow an appeal, 

administrative appeal, of a Corps of Engineers decision on a permit 

application. It would also allow for an appeal on the delineation of 

the wetlands. 

I would also like to address Mr. Dabbs. I must say that as the 

District Engineer, I was unaware of Mr. Dabbs’ predicament until 

we prepared for this hearing, and in fact, several of my senior staff 

were also unaware of his predicament. So I certainly apologize if 

Mr. Dabbs feels that he has not been satisfied as a customer. It is 

our policy to satisfy all of our customers. 

It also appears that Mr. Dabbs was not aware of a scheduled 

meeting that is scheduled this week. My staff informs me it is on 

the 18th, to meet onsite and clarify the issue of the wetlands delineation on his property. I will say that my staff has indicated that 

the initial indications from our folks looking at the property is that 

it was more than the 0.63 acres of wetlands, it could be upwards 

of 5 acres of wetlands. But our jurisdiction only does cover that 

area of wetlands. So if Mr. Dabbs has property clearly in the uplands that is not potentially a wetland, he can continue work on 

that right now. And I apologize for any kind of miscommunications 

that may have occurred to lead him to believe that he could not 

continue work on uplands areas where there was absolutely no possibility of there being wetlands involved. 

Mr. MCINTOSH. Great. I appreciate that and I am sure Mr. 

Dabbs will as well. And that would narrow it down to those smaller 

number of acres, 5 or 0.63——

60

Col. SMITH. That might be in contention as to whether or not 

they are wetlands or not. 

Mr. MCINTOSH. That is imminently sensible and I appreciate 

you——

Mr. DABBS. May I have that in writing, sir? [Laughter.] 

Col. SMITH. We will certainly provide that in writing, yes. 

Mr. DABBS. Thank you. 

Mr. BARR. Maybe even better, today you have it under oath, 

right now. 

Mr. MCINTOSH. Thank you, Col. Smith, I appreciate that. 

Col. SMITH. OK, I would like to go ahead and proceed. 

The Corps is responsible for managing and administering a regulatory program under three authorities. These authorities are Section 10 of the River and Harbors Act of 1899, which regulates 

structures or work in or affecting navigable waters of the United 

States; Section 103 of the Marine Protection Research and Sanctuaries Act, which regulates the transportation of dredge material 

for the purpose of ocean disposal; and principally what we are discussing today is Section 404 of the Clean Water Act, which regulates discharges of dredged or fill material into waters of the 

United States. 

Savannah District administers this program in the State of Georgia. In administering its regulatory program, the Corps utilizes a 

number of different kinds of permits, including nationwide general 

permits, regional general permits and individual permits. Nationwide permits issued by the Chief of Engineers allows certain activities deemed to have minimal impact on the environment. Typical 

nationwide permits include installing aids to navigation and the 

construction of minor road crossings. 

Savannah District has also issued several regional general permits for certain repetitive minor activities within its geographic jurisdiction, such as the construction of boat docks and the creation 

of artificial reefs. 

Nationwide and regional general permits are designed to expedite the permitting process for those projects that have no more 

than minimal adverse environmental effects. In 1996, Savannah 

District authorized 1,235 projects under nationwide or regional permits. The average processing time for these nationwide permits 

was 15 days and for the regional general permits, 8 days. 

Projects of major scope and which have potentially large environmental impacts require individual permits. Some of these projects 

include piers, bulkheads, large dams and projects that require filling large areas of wetlands. Major road projects, such as may being 

constructed throughout the metropolitan Atlanta region and in 

Cobb County are another example. Savannah District issued 88 individual permits in 1996 with an average processing time of 75 

days. We denied three applications during that same period with 

an average processing time of 72 days. 

I am aware the subcommittee is particularly interested in my recent denial of the road project known as the West Cobb Loop. As 

you are aware, suburban Atlanta, including Cobb County, is growing at a very rapid pace. Since 1990, Savannah District has processed and approved 218 permits in Cobb County alone. The average processing time for these permits was 27 days. 

61

The Savannah District received a completed permit application 

from Cobb County Department of Transportation in February 1994 

for the West Cobb Loop project. As required by our regulations, the 

Corps issued a joint public notice regarding the project shortly 

after receipt of the application. It was mailed to 935 addressees. 

We received comments, information and requests for additional information from four Federal agencies, six State of Georgia departments, 127 citizens of Cobb County and concerned environmental 

and historic preservation groups. We also responded to 12 congressional letters requesting information on the project and the status 

of the application. 

This application took longer than average, almost 3 years, to 

fully determine whether the project complied with all the applicable laws and determine that a full and complete public interest review process had taken place. 

On January 14, 1997, I denied Cobb County’s permit application 

for the West Cobb Loop road project. The reason for the denial was 

that of the four alternative corridors presented in the application, 

only the preferred alternative corridor was described in any detail 

by the applicant. Requests for environmental analysis of the three 

other alternatives did not result in sufficient information to judge 

the practicability of other potentially less damaging alternatives. 

On February 13, 1997, Cobb County filed an action in the Federal District Court for the northern district of Georgia seeking to 

challenge the denial of the permit. The matter is now in litigation 

before the Honorable Robert L. Vining, Jr., a senior Federal judge 

in the northern district of Georgia. 

The parties have had several productive meetings to discuss 

areas of mutual concern and recently signed a joint motion to remand and stay the litigation. This motion was submitted to Judge 

Vining and the Judge signed the order on June 3, 1997. The Department of Justice has requested that questions regarding the litigation be directed to Robin Richardson, the Department of Justice 

attorney handling the litigation. The purpose of the remand is to 

allow Cobb County an opportunity to submit a new modified application to the Corps. Pre-application meetings will be held next 

month to discuss this matter and to review the purpose and need 

for the new road project. Following these meetings, we anticipate 

that a new application will be submitted. I do not have any additional information at this time regarding the road project that will 

be submitted by Cobb County in its new application. 

In conclusion, the Corps of Engineers is dedicated to protection 

of our Nation’s aquatic resources, including wetlands, while also 

ensuring that responsible development which is in the public interest and meets criteria established under the Clean Water Act is not 

unduly hindered. 

As Commander of Savannah District, I must ensure that projects 

subject to my jurisdiction are carried out with due regard for potential environmental impacts and with appropriate protection and 

mitigation of our valuable aquatic resources. I am committed to 

making the application process a fair, open and responsive one.

62

Mr. Chairman and other members of this subcommittee, this concludes my statement. Thank you for this opportunity to discuss the 

role of Savannah District in carrying out the Corps’ responsibility 

under Section 404 of the Clean Water Act and I will be pleased to 

answer questions you may have. 

[The prepared statement of Col. Smith follows:]

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Mr. MCINTOSH. Thank you very much, Col. Smith. 

Let me start with a general question, if I may, and it has to do 

with a problem that we have had in putting together this type of 

hearing in other parts of the country chiefly, where witnesses are 

reluctant to come forward because they are worried that in future 

work that they need to do with a Government agency, that they 

will be penalized for that. And we set a very vigorous and clear policy of pursuing any subsequent activity of that, and we have had 

a couple of instances where I have had to intervene on behalf of 

the committee with the agencies at higher levels. 

So let me just ask you now to join me in giving those witnesses 

who appeared today an assurance that you will not hold that 

against them and that you will work aggressively to make sure 

that your staff does not do that. 

Col. SMITH. Certainly, Mr. Chairman, I am pleased to sign up to 

that commitment and I can assure you that we are interested in 

solving problems and not creating them. 

Mr. MCINTOSH. I appreciate that, and you can understand how 

that fear would come up, but I wanted to reassure each of them 

and others who might testify at the open mic, that that was our 

joint position on that. 

Let me ask you a question on the West Cobb Loop project. You 

indicated there was no preferred alternative. In essence, and not 

speaking legally but more practically, the Corps’ role in this in having to sign off on it means that they have to be involved in a real 

practical way as the county moves forward, otherwise they make 

a proposal and it kind of goes into a black box and they hope they 

get a favorable answer. 

First, what were the concerns you had with the proposal that 

was rejected and what are some of the guidelines that the county 

should keep in mind as they are preparing a second proposal pursuant to the Corps’ remand? 

Col. SMITH. I guess if I could summarize what the Corps’ issue 

principally was and led to the denial of the permit, it had to do 

with the purpose of the project, in a general sense, which is to 

move traffic from south to north in west Cobb County. As proposed 

to us, there were four corridors in the application that were possible corridors to move that traffic from south to north. We felt that 

we were never able to get enough information to make a decision 

about alternatives in three of those corridors, and in essence what 

we were left with was a detailed presentation of alternatives in 

only one of the four corridors, and as a result, we could not make 

a determination that we had the least damaging—environmentally 

damaging practical alternative. 

Mr. MCINTOSH. And what type of additional information would 

you need for the other three alternatives? 

Col. SMITH. What we asked for was alternative analysis similar 

to what we got for the alternative that was presented to us, where 

there were detailed variations of how the traffic could be moved 

from south to north. 

Mr. MCINTOSH. I am not following you. 

Col. SMITH. In essence, the application submitted to us included 

a traffic analysis that was used to limit the looking of specific alternatives to a single corridor. We had some great difficulties with 

70

that traffic analysis and as a result could not make—could not 

agree, applying the regulations as we are aware of them, we could 

not agree to limiting the look for this project into that single corridor. 

Mr. MCINTOSH. Now I am somewhat confused, because is it not 

the Corps’ responsibility to make a judgment about the impact of 

the project on the waters of the United States, or wetlands under 

the 404, rather than to conduct a traffic feasibility study? I mean, 

is that not what DOT or Georgia Department of Transportation is 

supposed to do—aren’t they charged with that expertise? 

Col. SMITH. Yes, it is, but we are charged with ensuring that 

what we have in the final project is the least damaging environmental practical alternative for the stated purpose of the project. 

And in this case, since we had very little analysis looking at what 

alternatives were available in the other three corridors, we could 

not make that determination. 

Mr. MCINTOSH. Now by alternatives, you mean in terms of impacts on the wetlands? 

Col. SMITH. Alternative routes that include not just impacts on 

the wetlands, but in various other——

Mr. MCINTOSH. You see, I am concerned that you have defined 

your mission too broadly, because I think the Corps is supposed to 

look at the impact on wetlands and that part of the environment, 

among all the alternatives and not judge the practicability as to 

traffic flow. And so my question would be did you have sufficient 

information on the impact on wetlands for the other three alternatives? 

Col. SMITH. No, that is why we could not make a determination 

on what was the least damaging to the environment. 

Mr. MCINTOSH. OK, so they need to provide you with information 

about the other alternatives. And I take from the testimony earlier 

today, they are going to work on reconfiguring their preferred proposal. 

Col. SMITH. Either that or in some way redefine the purpose of 

the project so that it is not as encompassing as the original permit 

application. 

Mr. MCINTOSH. See, that is where once again I see the Corps 

going beyond its mandate. Why are you concerned about the purpose of their project? 

Col. SMITH. That is what we have to—we have to deal with the 

application as it is submitted to us, Mr. Chairman. We cannot interpret the application, the application states a project purpose and 

the purpose of the project as stated to us, as we understood it, was 

to move traffic along one of four corridors in Cobb County. 

Mr. MCINTOSH. Right. And I would be greatly concerned if the 

Corps takes on itself a broader mission than analyzing the impacts 

on wetlands and the waters of the United States in determining, 

say for example, the need or the scope of the traffic problem. And 

I think that is what leads to the problem in this particular case, 

that you have got to end up deferring to the local government on 

those issues and then analyze whether their proposal in this case 

to mitigate is sufficient. And I guess the question I would have for 

you is if you have got a mitigation proposal that is 8 to 1 or 10 

to 1 on the ratio, that is pretty good, is it not? 

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Col. SMITH. The mitigation is very important, but the regulations 

require us to sequentially look at the impact on the environment, 

and the sequence is avoidance first, so that the ideal situation is 

to avoid any impact on the environment. And that involves alternate routes, looking at alternate routes, which kind of led us to this 

issue of how can we make a proper determination on whether we 

have the least damaging environmental—least environmentally 

damaging practical alternative when we do not have an analysis 

that might say there is a route available in the fourth corridor 

which does not impact the environment at all, and still satisfies or 

still meets the purpose of the project, which is to move traffic 

north-south adequately. 

Mr. MCINTOSH. But if the county commissioners come back to 

you and say our goal is to have a restricted access freeway and we 

have analyzed the different routes and we have determined that 

this is the route that accomplishes that goal, all the others do not 

accomplish that goal because we are going to have to create more 

access cuts. Then they have come back with the one that has the 

least impact on the environment and they have identified that 

there are not any others in which you can avoid impact on the wetlands, and still accomplish their goal; which is to have limited access transportation and, presumably, have a minimum impact on 

people’s lives. 

Col. SMITH. I guess the best way I can address that is to say 

that—and I probably have not articulated it very well, I obviously 

have not—is that we, based on the project application, the permit 

application, that was presented to us, we felt very strongly that in 

order to be able to make a determination about the least environmentally damaging route, we had to see a comparison of alternatives that included alternatives in the other corridors. And we 

never got that analysis, even though that was made clear at the 

beginning of the application process, and we also have other issues 

that enter into this as far as agreements made prior to the application process as to how we would approach the permit applications 

for what is known as the Cobb Loop Road. 

In fact, I mention in my written testimony, but not in the oral 

testimony, that while we were processing this application for West 

Cobb Loop, we were also processing two other permit applications 

for the east-west connector and there is also another road to the 

north. And those were approved. And the agreement was made at 

that point that these three applications would stand absolutely 

alone. And that is another reason why we obviously feel a need——

Mr. MCINTOSH. Let me make sure I understand—each of them 

would stand by itself? 

Col. SMITH. Separate utility. 

Mr. MCINTOSH. And you felt that that was not being adequately 

pursued in this application, those prior agreements? 

Col. SMITH. Yes, sir. 

Mr. MCINTOSH. Do you have adequate assurances now as the 

county is preparing their new submittal, that those will be followed? 

Col. SMITH. We will not know until we receive their application. 

Mr. MCINTOSH. Have you asked your staff to work with the county as they prepare this new application? 

72

Col. SMITH. Absolutely. 

Mr. MCINTOSH. So that they can understand the concerns? 

Col. SMITH. On almost all of these projects, we hold extensive 

pre-application meetings to resolve these kind of problems ahead of 

time. 

Mr. MCINTOSH. What is your estimate as to the time it will take 

to finish the application and reach a decision by the Corps? 

Col. SMITH. I do not know. I would probably be guessing, maybe 

I could ask for some help on that one. 

Mr. OGDEN. Typically we look at about 4 months, but in a project 

of this magnitude with the ‘‘concerns that it has,’’ I would not be 

surprised if the timeframe does not extend beyond that. 

Mr. MCINTOSH. But are you not aided in this by the fact that you 

have already seen one application on it? 

Mr. OGDEN. Yes, sir, we have significant information in here. 

The first thing we plan to do, and we discussed this with Georgia 

DOT—excuse me, Cobb DOT—is to discuss the project purpose 

again. As the Colonel stated, the project purpose was very broad 

on this particular portion of the road. When I refer to portion of 

the road, I am talking about the Loop Road, as it has become 

known. In the new application, hopefully we can focus on a more 

defined project purpose so that we can focus more clearly on what 

Cobb County actually wants. 

When we started pre-application consultation back in 1992 and 

1993 on this project—on not this project but on the loop road, period, we asked Cobb County up front, do you want to approach this 

as a single project. Cobb County says no, we want to approach it 

as portions of a road that would satisfy a particular need. And 

when that happened, of course, they told us that at no time—and 

we assured them that at no time, if this is your approach, all of 

these points may or may not connect, if that is your purpose. And 

now the purpose is to connect it, which is fine, if this is the way 

it can be worked out. 

Mr. MCINTOSH. And let me repeat, I would find significant problems if the Corps defines its mission to second guess them on that 

purpose. I agree with you, you should get a very clear statement 

from them on what the county’s purpose is, but let me strongly 

urge you not to second guess them in that because I think they can 

make that best determination for the local community. 

Let me also request, Col. Smith, if you could update the committee at the end of 4 months as to what the status of the discussions have been and the review process, and if it takes longer than 

that, then we will ask you for continued updates after that. 

Let me end my session of questioning for this round—I have got 

some more on some other subjects—and turn now to Mr. Barr. 

Mr. BARR. Thank you, Mr. Chairman. 

I guess in many respect, Colonel, what our decisionmaking boils 

down to, whether it is Mr. McIntosh, as chairman of this subcommittee, whether it is the head of a Federal agency, whether it 

is yourself, whether it is myself in my previous role as a Federal 

prosecutor—it comes down to prioritizing the use of scarce resources. And I think one of the primary jobs that the citizens and 

taxpayers of this country expect of us and have a right to demand 

is that we use those limited resources and prioritize so that the 

73

most important work gets done and that we do not spend a lot of 

their money worrying about chasing after gnats when there are life 

threatening animals out there, as it were. 

Is there some justification that you can provide through this 

forum today, or some explanation as to why among all of the 

projects with which your agency is working or may not be able to 

because of scarce resources, what great public harm, how many 

lives would have been at stake, had Mr. Grady Brown, who you 

heard from earlier, been allowed to keep his land in the way that 

it was before it had been messed up inadvertently? Why was that 

so all fired important to—as you have seen, you heard from Mr. 

Shackleford here, who has indicated I think very sincerely that he 

is interested in working more as a partnership and working in 

major projects around the State, and we have projects because apparently lack of resources you are not able to move forward quickly—what was your decisionmaking that felt this burning need to 

worry about Mr. Grady Brown’s property? 

Col. SMITH. Well, I guess I do not know the specific answer to 

how we became aware of the particular problem with the wetlands. 

I guess I could only state that as the laws are crafted at this point, 

and I will certainly acknowledge that Mr. Brown’s situation is 

probably a unique one in many ways, but as the laws are crafted 

at this point, once a wetlands is created, the resource—I have very 

little recourse in making a determination of whether these wetlands should or should not be protected by investigating how they 

came to be. 

Mr. BARR. I understand that and I understand and I certainly 

presume that any project in which you are involved meets the definition of your jurisdiction, falls within your jurisdiction and a justification can be found for it. I am not talking about that. I am saying among—say you walk into the office tomorrow and you have 

100 different matters with which to deal, some involving thousands 

of acres, some involving, as Mr. Shackleford has said, a project 

where lives and public safety is at stake, and then you have a 

project where you have land such as Mr. Grady Brown’s here, 

where it is not hurting anybody; as a matter of fact, it would have 

been better to leave the land in the State that it was originally. I 

mean is there any decisionmaking process that you can relate to 

us that leads you to the conclusion that to the top of the pile goes 

a case like Mr. Brown’s? I just have a hard time among all of the 

different projects on which you all could be working and the very 

limited resources, why those sorts of projects are so important that 

you take time away and resources away from thousand acre 

projects and public safety projects. 

Col. SMITH. Well, I do not know that we—go ahead. 

Mr. OGDEN. If I may, I would like to attempt to answer that. In 

our world, with the resources that we have, we set priorities on 

permit applications, first priority. Violations fall somewhere down 

at the lower end of the spectrum. Now with regard to a project that 

would have an impact on human life, that is taken under consideration during the review process. So we do prioritize that with the 

resources and the persons that we have to do that. 

Mr. BARR. OK, how many lives were at stake in Mr. Brown’s 

project. 

74

Mr. OGDEN. There were none, to my knowledge. 

Mr. BARR. Well, see, that is my point. 

Another thing, and I must admit that, Colonel, your answers to 

Mr. McIntosh’s questions leave me a little bit mystified, especially 

when I weigh them against your written words here. You state, for 

example, on page 5 of your written testimony, in talking about the 

remand to Cobb County to allow an opportunity to submit a new 

modified application—and I commend you for that and I do appreciate what I read and what I have heard today about the Corps 

working with the county. But the language that I find extremely 

troubling is where you say that you will be holding meetings, ‘‘to 

determine the purpose and need for the new road project.’’

Where in Federal regulation and the laws of this land is it the 

job of the Corps of Engineers to determine the purpose and needs 

for road projects in our communities? I am not talking about the 

CFR, I am not talking about Memorandums of Understanding or 

Agreement. I am talking about in the laws of this land. 

Col. SMITH. Well, I am trying to find the exact words here. 

Mr. BARR. It is about three quarters of the way down on page 

5. 

Col. SMITH. I only have four pages in my version here. 

Mr. BARR. This is very strange, because I have your written testimony here—would somebody show this to the Colonel—it is talking about the remand to Cobb County. 

Col. SMITH. OK. Well, I guess I can—as interpreted by you, I can 

certainly see why you might interpret it to say as you have interpreted it, but I must just say that the reason that is written like 

that is just so that we can meet with the county and discuss this 

very important issue as relates to our determination about the denial of the permit to begin with is exactly what the purpose of this 

project is, has a key factor in what areas we must consider under 

the regulations as to what might be the least environmentally damaging alternative to meet the purpose of the project. 

I will certainly acknowledge that the need for the project is not 

something that the Corps of Engineers necessarily has a role in. 

But in having a pre-application meeting, the whole purpose of it is 

to prevent any kind of miscommunications in stating what—in putting it in the actual application, because once we receive the application, we must deal with what we have received. And in this particular case, for the West Cobb Loop Road, we had to, under the 

purpose of the project, had to consider other alternatives beyond 

which the county considered to be alternatives in the specific corridor they selected to——

Mr. BARR. I think the feeling that a lot of the governments with 

which you deal—a lot of the governmental entities and certainly 

myself and I think judging from the chairman’s questions as well, 

I think the discomfort that we have with that is that you are taking something, section 404 authority, and the way you have just interpreted it and the way it is written out here, there is virtually 

no limit to your power, once you determine that, in your view, 

there may be a wetland. You are saying that you then have the 

power to decide and to look at what the purpose of the project is, 

whether there is a need for it, and I just do not think that that 

was the intent of the Congress or the previous administrations in 

75

this country to give that power to the Corps. For the life of me, 

with all the things you all have to do, I do not know why you would 

want to subsume that, for heavens sake, but it may very well be 

and this may be something that would be helpful to the Corps, that 

we ought to go back, and maybe this is a benefit from having these 

hearings, look at these laws, look at this huge body of Code of Federal Regulations and these memorandums and so forth, and just 

get back to some basics and clarify exactly what the jurisdiction of 

the Corps is in this area, which I think is what our State and local 

officials are saying, we do not mind working on these things, we 

recognize that there is a problem, but there have to be some limits 

to it. 

Col. SMITH. Mr. Barr, let me—I know Mr. Ogden wants to try to 

respond, but let me take one last shot at trying to articulate the 

issue of the corridors and the purpose of the project. 

Mr. BARR. Sure. 

Col. SMITH. As an example, if the project—permit application had 

stated specifically that the purpose of this project was to connect 

two specific end points along a route, that has—that allows significantly different review and analysis by the Corps of Engineers in 

reviewing that permit application than if the permit application 

says the purpose of this application or project is to move traffic 

from some southern area to some northern area, in a broad range. 

I am trying to articulate why it is important what the purpose says 

of the project. The application that we received, that we denied the 

application for, was not specific about the purpose of the project. 

It did not say the purpose of this project is to connect two different 

specific points with a route that connects those two points. And as 

a result, we were limited in what we had to consider in our analysis. 

I do not know if that helps, I feel like I’m failing to articulate——

Mr. BARR. Well, and I am not convinced that the problem is 

yours. I think we may have put our finger on a fundamental problem with the way this whole wetlands issue has developed and it 

may very well be time now to go back and try and clarify exactly 

what your jurisdiction is so that you have better tools with which 

to work and to prioritize your programs. 

Mr. Chairman, if I could just ask one other followup question. I 

know you have some as well. 

Mr. MCINTOSH. Certainly. 

Mr. BARR. Again, Colonel, hopefully you will have this—I do not 

know how I wound up with more of your testimony than you have, 

but on page 2, the very last paragraph of your testimony, you say 

‘‘Projects of major scope and which have potentially large environmental impacts require individual permits.’’ It is my understanding 

just from having reviewed a lot of material here over some period 

of time, not just today, that the Cobb County project, the loop 

project, that there was no single large environmental impact, that 

there were a lot of potentially small impacts, as it were. Does the 

Corps interpret, here again, their jurisdiction that even if there is 

no single potentially large environmental impact in a road project, 

if there are a certain number of small impacts, that you sort of aggregate all those and say bingo, we have got a major impact here, 

even though there is no one little thing that we can point to? 

76

Col. SMITH. Yes, there are—in our regulations and guidelines, we 

must consider——

Mr. BARR. Not in the law, but in—here again, we go back to your 

guidelines. 

Col. SMITH [continuing]. Cumulative impacts. And so in a situation where there are numerous minor impacts to the environment 

for the analysis when taken in conjunction with one another in a 

cumulative manner, that can be determined to be a major significant impact. 

Mr. BARR. Do you assign a numeric value to each of these? I 

mean, if you have a roadway that is 20 miles long and there are 

10 little minor impacts, how does that all of a sudden become a 

major one? What is the threshold? 

Col. SMITH. Can you address that? 

Mr. OGDEN. Let me attempt to address that, sir. 

The way we would look at that is that you may have 10 minor 

impacts to wetlands, there might be wildlife corridors dissected as 

a result of that, there might be historic properties along the way 

that would be impacted as a result of that, there might be problems with water quality as a result of the project—and I am just 

giving hypotheticals now. When we begin to add up all of those 

‘‘impacts’’ then they could come out to be a significant impact. 

Mr. BARR. It is not really scientific. 

Mr. OGDEN. That is right. 

Mr. BARR. I did not think so. 

Mr. OGDEN. It is based on professional judgment. 

Mr. BARR. I understand. Thank you, and I appreciate the time, 

Mr. Chairman. 

Mr. MCINTOSH. Thank you, Mr. Barr. 

Col. Smith, I have several somewhat unrelated questions, but let 

me start with the testimony we heard earlier about the Fish and 

Wildlife Service sending a letter to Mr. Ogden indicating they 

would no longer participate in the field meetings. What is the 

Corps’ position on whether that is helpful or not. One of the things 

that we worked with in the Bush administration, and I understand 

that President Clinton has continued this in the wetlands area, is 

an attempt to maximize coordination among the different agencies 

involved and try to make sure that there is a process in place so 

that you do not have one agency waiting outside that coordination 

process and then saying, well, everybody else agreed to your 

project, but we did not, so you have to start over again. 

Could you comment on that development? It is news to me, and 

I think the subcommittee which also has jurisdiction over the Interior Department may be looking into that. 

Col. SMITH. I think it is a relatively new development and I 

guess I would say in a general sense that the Corps’ position is 

that in every case where we can improve communication and dialog 

and learn about problems earlier rather than later, we support that 

kind of process. I just was quickly updated on this particular issue 

and I certainly cannot and do not want to even try to speak for the 

Fish and Wildlife Service, but I understand that their issue with 

regard to attending the meetings is that they were not going to be 

able to accomplish—or they had some issue with what the stated 

purpose of the meetings were and that they could not accomplish—

77

we were not going to be able to accomplish in those meetings what 

we said we were going to do. So they saw their time better spent 

on working off the backlog. And I am probably speaking out of line, 

like I said, I do not want to talk about what their position might 

be, but that is my brief understanding. 

Mr. MCINTOSH. And the letter mentioned something about saving 

time and working on the practical alternatives report backlog, 

which I was unfamiliar with as well. But in general, what was 

their concern with the stated purpose of the meeting? 

Mr. OGDEN. The specifics of that is the Fish and Wildlife Service 

did not feel by visiting the site they would come away with the 

sense that the preferred alternative would be determined in the 

field. They felt that even though we would go out there and look 

at it, suggestions and recommendations would be made and then 

the applicant, in this case, Georgia DOT, would come back with 

that same particular application or alternative. 

Now——

Mr. MCINTOSH. So they are concerned that by attending that 

meeting, it might imply that something discussed there is being 

agreed to and they wanted to reserve the ability to think about 

other alternatives, I guess? 

Mr. OGDEN. I guess that is a fairly good overview of it. 

Mr. MCINTOSH. OK. And I do not mean to ask you to respond on 

their behalf. We are going to pursue that with them. I guess the 

question I would like to ask, maybe Mr. Ogden and all of you could 

tell me, in your opinion is it helpful to have everybody at that field 

meeting? 

Mr. OGDEN. We find that they are very helpful in that we can 

resolve many issues on the site at one time rather than keeping the 

maze of letter writing campaign going back and forth. The system 

has worked fairly well, obviously not as good as many would like, 

but it is an attempt to communicate. We are mandated by law to 

have the resource agencies involved in these processes. If we issue 

a permit with impacts to their laws, then of course that would be 

elevated, or it would be denied up front, to be honest with you. So 

we have to get their input. 

Mr. MCINTOSH. OK. Mr. Ogden, do you concur with that? 

Mr. OGDEN. I am Ogden. 

Mr. MCINTOSH. Oh, I am sorry, they told me the other way 

around. 

Col. SMITH. He is Mr. Hough. 

Mr. MCINTOSH. Excuse me. OK, Mr. Ogden. 

And Mitch King had written you the letter. I am going to ask 

that that be included in the record today and we will pursue that 

with the Fish and Wildlife Service to find out what is going on. 

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Mr. MCINTOSH. A second area that came up—occurred to me in 

listening to some of the testimony of people who had had problems 

in dealing with the Cease and Desist Order. They mentioned that 

their consultants and engineers were unaware of some of the 

changes in the standards and that the local government, I guess 

particularly Bartow County Health Department was telling, I think 

it was Mr. Dabbs, that they did not realize that there might be a 

process that they had to go through with you. Does the Corps have 

an effort in, I guess, information dissemination, either to practitioners in this area, people who are working in construction in the 

engineering side, or to the local governments who also issue permits, to try to keep them up to date as changes are made, like on 

the changes in the nationwide permit? 

Mr. OGDEN. If I may, when the new nationwide permits came out 

in February 1997, each Corps district including Savannah District, 

had the requirement to send out through our public mailing list 

these changes. And our mail-out is something in excess of 1,500 on 

our mailing list. So practically every community, every conservation group, every citizen on that list—and every citizen in the State 

is not on that list, it is by choice—does get that information. There 

are certain workshops held around the State that we have had and 

we invite people in the business community to come so that they 

can sit in and participate in this information process. That has 

been done throughout the State of Georgia since these new regulations went into effect. I do not know what else we can do to get 

that information out to the public. 

Mr. MCINTOSH. Are some of the engineering firms also on your 

list? 

Mr. OGDEN. Yes, sir, many of them are. 

Col. SMITH. I would also add that there was a public hearing conducted by the Division Commander of South Atlantic Division here 

in the Atlanta area with regard to the nationwide permit changes. 

Again, we can apologize for folks not getting that word, but we 

made very clear, conscious efforts to try to get the information out 

there. 

Mr. MCINTOSH. And I think that makes sense. I guess in this 

particular case, there has been a change from when the project 

started and that presents some particular problems. 

Let me ask you Col. Smith, to address another question. The cost 

of delays are enormous, and we heard testimony earlier. I think everybody would understand that, because when you are developing 

a site, you are often doing it on borrowed money, so you have got 

time value of money to deal with. Is there a process in place where 

the Corps has switched from an approval process to an enforcement 

process, issued a Cease and Desist letter or whatever the step is, 

where you try to expedite resolution of that, at least as to areas 

where the Corps may not have jurisdiction or there is a question 

of jurisdiction that needs to be resolved? 

Col. SMITH. Well, I would refer again to what Mr. Ogden said 

earlier as far as our overall priorities, is our——

Mr. MCINTOSH. It sounded like enforcement was lower down on 

the totem pole. 

Col. SMITH. Enforcement is lower on the totem pole. Priorities 

are for—permit applications are the highest priority, but within all 

83

of that, obviously we can work to do better and minimize impacts. 

And if these particular issues with major impacts are brought to 

our concerns, we will try to respond wherever we can in as rapid 

manner as we can. It is an issue that every agency has in trying 

to maximize its output responsiveness with a limited staff. 

Mr. MCINTOSH. Let me urge you to think about—and in particular on that Cease and Desist Order and others that bring 

things to a standstill in development whether there might be a way 

to expedite that. And I do not know if that means reordering your 

priorities or focusing in on a management of the time that elapses 

on those, because there is a particular cost involved once somebody 

has started a project, that means they have signed the loans, they 

are not waiting for permit approvals in order to get the money 

flowing and so there are some very serious costs that can be incurred, and you might want to take all that into consideration. Just 

kind of real world effects, in establishing that priority within your 

office. And I understand the difficulty when you have got limited 

resources and you have got a lot of different things that staff has 

to review and sign off on. But that struck me earlier as something 

that could be particularly taken into account. 

And in that line, I ask you to respond to the other criticism that 

was leveled was by Mr. Shackleford, who said there is a lack of 

ability to make decisions. 

Col. SMITH. Well, I would have to disagree. I think we have the 

ability to make decisions wherever possible and I guess what we 

are charged in the field here as executing the program, we balance 

trying to make sure all the concerns per our guidelines and the 

regulations and law that exist are taken into account, so that we 

can in fact approve permits. Our goal is to approve permits, not 

deny permits. And I think our record shows that statistically, we 

do a pretty good job of that, and very seldom, in fact, wind up denying a permit. So I guess all I can say in response is I feel we 

are fully capable of making decisions and we make them wherever 

we—in as timely manner as we can and in a balanced manner with 

regard to our responsibilities under the Clean Water Act. 

Mr. HOUGH. Mr. Chairman, if I might? 

Mr. MCINTOSH. Yes. 

Mr. HOUGH. I do not recall Mr. Shackleford’s comment being directed at the Corps of Engineers. 

Mr. MCINTOSH. It was a general comment about the process, I 

think that is right. 

Mr. HOUGH. We might ask him. I do not recall that being directed at the Corps, it was directed at someone else. 

Mr. MCINTOSH. Mr. Shackleford, do you want to elaborate? 

Mr. SHACKLEFORD. Simply to the point, the Corps issues the permit, the Corps has the responsibility to take into consideration 

input from the other agencies, but ultimately the Corps has to 

make the decision, so they have got to be able to work through the 

process, they have got to be able to deal with 15 month delays on 

PARs. So you heard me say that they are a prisoner of the system. 

They need to be able to deal with the system and so some of the 

blame has to rest with the Corps. Primarily it rests with the agencies that have review process. 

84

I want to give you one example. I talked about the situation up 

at Homer. U.S. Fish and Wildlife tried to blackmail us—the purchase of 2,900 acres between that bypass road and the core center 

of that town, to mitigate 71⁄2 acres of wetlands—2,900 acres of upland. Col. Smith’s predecessor, Col. Boy, ultimately turned that 

permit down because it was determined there was a viable alternative that essentially dismantles the town. 

Mr. MCINTOSH. That is pretty strong language, Mr. Shackleford. 

Let me tell you this, I do think you are correct and there are 

problems in both the way the system is designed where you get the 

Fish and Wildlife Service and EPA having effectively a veto over 

Corps decisionmaking, but then I think there is some valid concern 

there that the Corps needs to, within the system that is flawed in 

its design, needs to work to reach those decisions in a way that is 

good for the public. 

And believe me, this is coming from someone who tried for a long 

time to say EPA should stay out of it and we should allow the 

Corps to make these decisions on their own, because in fact from 

my perspective, back when I was in the Bush administration and 

today as a Member of Congress, the Corps does have the ability to 

do that and your perspective of trying to grant permits rather than 

deny them is one that was appreciated. So I think there is an equal 

measure of concern on all sides there. 

I have no further questions on this. Mr. Barr, do you have further questions of Col. Smith? 

Mr. BARR. Thank you, Mr. Chairman, just two quick things. 

To go back, Colonel, to Mr. Grady Brown’s situation, would you 

be prepared to tell him today that in the great scheme of things 

and the great list of priorities that you all deal with, would you be 

prepared to tell him today that he can simply restore his land to 

the condition in which he found it when he purchased it? 

Col. SMITH. No, sir. 

Mr. BARR. I have this nasty habit of always going back and trying to find things in writing and let me just mention one other of 

your documents, and it is not really a question, Mr. Chairman, although if you would like to respond, Colonel, I certainly would 

want it. It simply follows on to my earlier questioning with regard 

to your written testimony and I think this is again an illustration 

of the problems that counties and other governmental agencies are 

having dealing with the Corps. 

This is part of the document package dated January 14, 1997 to 

Mr. Jim Croy, and it has to do with the Cobb County project that 

has consumed a great deal of our time today. And in your part one 

introduction of the background materials that accompany your letter to Mr. Croy, under paragraph (h) it talks about the basic 

project purpose. And this is what we kind of come back to. It says, 

‘‘We have considered the applicant’s reported project purpose and 

need.’’ However, then it goes on in the next sentence to say, ‘‘The 

basic project purpose as determined by the U.S. Army Corps of Engineers,’’ and then it goes on. This is, I think, the confusion and 

this is, I think, the root of at least some of the problems that we 

are seeing here, in that the Corps is, for some reason, feeling the 

need to make independent determinations of the needs in our communities for these projects, notwithstanding the fact that the State 

85

agencies, the local governmental agencies’ may have already determined that in their view, based on the needs of their citizens in the 

community, they need a road project. And then they come to the 

Corps and the Corps conducts an independent study and analysis 

to itself determine whether there is a need for the project or what 

the purpose is to then determine if it fits within what the Corps 

views as its jurisdiction. 

Again, all of us may be wrong in this, I do not know, but this 

is really the genesis for a lot of the confusion and perhaps even a 

great deal of wasted time and money, and is something that I know 

I want to look into further and perhaps highlighting some of this. 

And again, in fairness to you all, it may be a problem for you all 

too in trying to determine and decipher exactly what your jurisdiction is. But I think it is much broader in practice than it was intended by our Government and the Congress in passing these laws 

to be. 

And I appreciate you being with us today, and again, if you 

would like to respond to that, that is fine—you do not have to. 

And I appreciate—before we move into the general public comment period—very much your bringing these hearings to the Seventh District of Georgia, Mr. Chairman, and giving us the opportunity to let you and our colleagues know some of the real problems out here in the real community that we have to deal with. 

Mr. MCINTOSH. I appreciate that. Col. Smith, did you want to 

make a comment? 

Col. SMITH. Well, I think in response, the only thing I would say 

is that clearly it is not my intent, as a district engineer, to try to 

determine what the needs of a local community are with regard to 

road projects. I do not believe that that is in my purview and if 

that is the way the language is written there, then probably we are 

not articulating it well. I see my mission as one of regulating within my jurisdiction the law under the Clean Water Act to find a way 

for a local community to find a way to have a project that can damage the environment in the least manner and get the project constructed, and balance those different and competing—in many 

cases, competing requirements of the Clean Water Act and the requirements for development in the local community. 

Mr. MCINTOSH. Let me followup on one thing and then I will be 

done. With regard to Mr. Brown’s situation, you indicated when 

Mr. Barr asked if you could allow him to go back and restore his 

land to the way it was—what can he do to have the ability when 

another entity of the Government has come in and changed the nature of his land, to have it restored back to the way it was? 

Col. SMITH. I think that what has happened as in the case of Mr. 

Brown, which is a very clearly unique case and I think probably 

we can all relate to Mr. Brown and say it is a very unfortunate 

case, but it is a case where wetlands have been created, and wetlands are protected under the law and therefore, his avenue to 

have the wetlands removed would be to get permission to do that, 

a permit. 

Mr. MCINTOSH. And it is the legal position of the Corps that wetlands that are artificially created are protected the same as naturally occurring one? 

Mr. OGDEN. May I answer that? 

86

Col. SMITH. Go ahead. 

Mr. OGDEN. In the law, it does not differentiate between naturally occurring wetlands or wetlands that might be created as a result of manmade activities, it does not differentiate. 

Mr. BARR. Can you all not use something called common sense 

here? [Laughter.] 

I mean that as a very serious question. [Applause.] 

I mean we have the situation, and apparently you all do not disagree with anything that Mr. Brown has testified to in terms of his 

basics as just related by Mr. McIntosh, and you are saying notwithstanding that, simply because the law does not differentiate, we in 

the exercise of independent common sense cannot do so. 

Mr. OGDEN. He can apply for a permit and we can go through 

the process. I do not know how we can circumvent the law. [Applause.] 

Mr. BARR. OK. I do not think you are circumventing the law, you 

are saying that the law does not say exactly—does not force you 

to do exactly what you have done here. We are saying is not common sense, in addition to, as you indicated earlier, your professional judgment, should that not be part of the equation too? A 

common sense interpretation of the law. 

Mr. MCINTOSH. I think you could make an argument that at the 

time the law was passed and even extended by regulation to his 

property, it was not a wetland and the Government owes him the 

obligation to restore it to the way it was at that point in time. And 

I think that would give you ample authority to make the decision 

that yes, if we need to now issue a permit to do that, we can do 

it. 

Mr. BROWN. Let me ask you something. Could I ask a question 

of this engineer? Now that might not be lawful or might be out of 

order, but I would like to ask him something. 

Mr. MCINTOSH. Sure, Mr. Brown. 

Mr. BROWN. I would like to know how you found out, the Corps 

of Engineers found out that was wetland? Do you know? 

Col. SMITH. I do not know the answer to that. 

Mr. BROWN. Either one of you know? Do you know what they 

told me? The Corps of Engineers came out there and said at first 

he came out there and saw wet land there. Well, whenever he came 

out there, the ditch was already dug and it was not wet land, I 

mean the water was running down in the stream. I asked him, I 

said, you said you came out there and saw it. You did not see any 

wet land, did you? I said who—what did you do, what happened? 

He said I got an anonymous call. That is the way you all got it, 

through an anonymous call. 

Have you all got plenty of time that every time somebody calls 

you to run out and see about somebody? There in Villa Rica where 

it is hurting nothing. It is my land and I bought it in 1943, around 

in the early 1940’s. I have paid taxes on it for all that amount of 

years and here it is, an anonymous call can come down there and 

get my land—I mean put water all over my ground, plug up 

ditches. It does not make sense, it does not make common sense. 

It is a bunch of people that are taking this country over and people 

are getting tired of it. [Applause.] 

87

VOICE. Why do you not go after the State, they are the ones that 

caused the problem? 

Mr. BROWN. The State did not have anything to do with it. The 

DOT had to go out there and fill up that ditch after they dug it. 

That does not make sense. 

VOICE. May I speak? 

Mr. MCINTOSH. Let me now—actually we are going to move on 

to the open microphone where people will be able to speak. 

Mr. Ogden, did you have any comment with respect to that? I 

will give you the final word. 

Mr. OGDEN. About the only thing I could say about that, I personally was not involved in that site visit, but wetlands are determined based on a three-parameter approach. We look at hydrology, 

vegetation and soil conditions, and even though you might pull the 

hydrology away by putting a ditch in, the soils are not going to 

change overnight and there will be remnant vegetation there for 

sometime. So to this specific case, I could not say who made the 

determination on my staff or how it was made, but I would assume 

that there were wetlands there and the ditch was dug and it removed the hydrology and as far as we are concerned you still have 

a remnant wetland there. 

Mr. MCINTOSH. Well, I would urge you, if Mr. Brown puts in a 

permit, to study this and determine whether there is a flexibility 

in the law to allow him to restore his land to the way it was. And 

I am pleased to hear you say that this is a relatively unique problem that comes up. 

Let me close out this portion of the hearing and once again thank 

you, Col. Smith. I know it is not always pleasant, but I appreciate 

your willingness to listen to people. 

And now we are going to move on to the open microphone portion 

of the hearing. We were, I think, scheduled to close out at 4 but 

this has taken longer than we thought, so we will go until 5 and 

get as many people as possible. 

I will call forward names based on the sign-up sheet that was out 

there with the staff and we will ask everybody to please keep your 

comments to 3 minutes and Bob and I may have a question or two 

for you after that. 

The first person who had signed up is Ms. Laura Lester, if she 

is available. And please, if you could come forward to this front podium, so we can record it for the record. And then perhaps Karen 

Barnes, who is the staff assistant there in the powder blue suit, if 

folks could identify themselves to her and line up so we could rapidly go through the list of people, that will allow as many people 

as possible to participate. Thank you, Ms. Lester, if you could share 

your remarks, and I would ask you to keep it to 3 minutes, if you 

could. 

STATEMENT OF LAURA LESTER, WEST COBB COMMUNITY 

COUNCIL 

Ms. LESTER. I hope it will be 3 minutes. I do have a title for my 

paper and although I did not have time—I was so busy putting up 

green signs everywhere letting everybody know that the meeting 

was held today—that it is not proofed, but I certainly want you to 

have a copy of it and will certainly forward one that is proofread. 

88

Mr. MCINTOSH. We will put the whole paper in the record for you 

also. 

Ms. LESTER. Thanks. ‘‘Checks and Balances versus Unchecked 

Government Power’’ is the title of my brief remarks. The subtitle 

is ‘‘Local, State and National Governments Use the Road of Power 

and Wealth in Search of Economic Development While Citizens 

Rely on their Rights to Assemble, to Speak Freely and to Petition 

the Government in Search of Quality Living.’’

Welcome to Georgia, Chairman McIntosh. We are the largest 

State east of the Mississippi and home of more trees than any 

other State in that region. The beauteous pastoral character of 

western Cobb County and the peace and tranquility of its citizenry 

are the subject of my brief address today. 

Chairman McIntosh, Karen Barnes of your staff asked me what 

my position was when I called your office to request being included 

as a witness. Was I against the West Sandtown route chosen by 

the Corps of Engineers? I responded that my organization, West 

Cobb Community Council, had organized a steering committee, 

held community meetings and I wished for the entire range of 

views to be presented. Ms. Barnes said the list was unfortunately 

already filled. However, I could wait until the end for the open mic 

panel. 

The staff member at the office of Representative Bob Barr said 

the list of witnesses was being done in Washington, and only residents along West Sandtown Road were invited. I responded that I 

lived along West Sandtown. Then I was told that potential names 

of residents were from Commissioner Bill Cooper. 

The staff member at the office of Chairman Byrne said they had 

no involvement in the witness list and had not received it. The 

staff at the office of Commissioner Cooper said she was not involved in the witness list, but she would have the commissioner 

call me. 

Ms. Barnes from Chairman McIntosh’s office faxed my office a 

tentative list of witnesses 2 days after our initial talk. I carried 

copies to the Atlanta Journal Constitution and the Marietta Daily 

Journal, who had received none as well. 

Neither John Wiles nor Bill Byrne, neither the Government witnesses for Cobb County nor the State of Georgia have met with the 

organization that we formed or with the remnants of Protect West 

Cobb or with any of the affected subdivisions or with the school 

parents or with the church members along West Sandtown Road or 

with those on nearby Irwin Street or John Ward Road. Commissioner Cooper did attend one of our meetings on February 20, 1997, 

held at Cheatham Hill Baptist Church. Some of the residents who 

opposed the Noses Creek route were present and spoke, as did a 

large group of people living directly adjacent to or off West 

Sandtown Road. I oppose efforts to divide and conquer between 

neighbors. I oppose efforts to present one side only of a many-sided 

issue. I oppose posturing of a political nature. 

I have three points to make. The first is to question the traffic 

study done by Moreland Altobelli Associates, Inc., in January 1994 

in cooperation with the Cobb Department of Transportation. Cobb 

DOT used this document almost exclusively as the basis for their 

decision to build a stand-alone four-lane highway. This study forms 

89

the heart of the West Cobb Loop Permit Application Support Document. I was told that copies of this document were probably not 

available because of litigation. I filed under the Freedom of Information Act and made copies of portions. I find the study 

irretrievably flawed. 

The study does not look at traffic patterns in a connected pattern 

for the region, but specifically centered and limited the study to an 

area on either side of West Sandtown Road. Traffic counts were 

judged superficial by eye witnesses. These witnesses report that 

the West Sandtown Road traffic count was done only at the dropoff 

in the morning for students attending Dowell Elementary School, 

with over 700 students arriving for school. Computer projections 

filled out the numbers used in volume/capacity ratios. The centering and the counts were major factors in the results. 

The Army Corps of Engineers did not say this today, but they are 

much more critical of the study. The denial states ‘‘There are problems with data interpretation related to improvements shown in 

the volume/capacity ratios. It appears that invalid data which prevails in the Permit Application Support Document was used by the 

applicant to support the preferred corridor alternate.’’

This harshly critical statement means that the routes presented 

were all based on improper and inaccurate information. Neither 

Noses Creek nor West Sandtown were properly studied, presented 

and evaluated. 

The second point is that I find the intended road to be essentially 

a developmental highway, not a transportation corridor. This is a 

segment of a huge road proposal designed to link the interstates 

and the shopping mall areas, Town Center and Cumberland. Others beside me have stated the viewpoint that an environmental impact statement was required. In 1994, Protect West Cobb wrote in 

their response to Joint Public Notice required by the application 

that this was ‘‘an improper segmentation of a larger road construction project.’’ They state that due to the magnitude, the project constitutes a major Federal action significantly affecting the human 

environment such that an environmental impact statement is required pursuant to the law. 

Now most of these segments have been built. Denial of the whole 

scope of the road project is limited to what segments remain. 

In the 1980’s, Wayne Shackleford characterized roads as links to 

malls. 

Mr. MCINTOSH. Ms. Lester, I am going to have to ask you to 

summarize the rest of your points. 

Ms. LESTER. I certainly will, it is very short. 

I find this a transparent effort to support commercialization of 

existing residential land. I call for an environmental impact statement at this juncture. 

The third point is a critical look at the stand-alone nature of the 

road as a Cobb taxpayer. It is unfair to expect Cobb residents to 

bear alone the cost of relieving traffic congestion of our Paulding 

County neighbors. A new traffic study will in all likelihood indicate 

the need for a corridor and these commuters do account for a tremendous amount of consumer purchases in our malls. But the designation as a stand-alone did disguise the pattern and the purpose. 

90

In summary, I find three errors in the process of planning and 

building these roadways through west Cobb. There is intentionality 

in the error of the West Cobb Traffic Study and its subsequent use. 

There is intentionality in the error of segmenting the project artificially to avoid the study of environmental impact. There is error in 

the assignment of county taxes to a regional road plan. 

I recommend that the new application for a permit be based on 

a regional traffic study. 

I recommend a study of the impact of a new permit application 

on the human environment. 

I recommend that the State of Georgia become a planning and 

funding partner. 

It is unjust to tax the citizens of Cobb for roads that have a State 

purpose. 

In conclusion, I cast no stones and I blame no persons or institutions. It is fortuitous and providential that we citizens are able to 

make use of the checks and balances of power between local, State 

and national governments. My neighbors and I choose to live out 

here on West Sandtown Road to enjoy the countryside, the natural 

beauty and the quiet. We want the most to say about our pursuit 

of happiness. [Applause.] 

[The prepared statement of Ms. Lester follows:]

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Mr. MCINTOSH. Thank you, Ms. Lester, we appreciate that. Represent Barr, did you have any questions? 

Mr. BARR. No. 

Mr. MCINTOSH. Thank you. The next citizen witness on the list 

was Erin Bout-heilier. And let me mention a couple of the other 

people so you can be on deck, as it were. George Morgan will be 

third and Dr. Sue McCuskey is fourth. Is Erin here? 

[No response.] 

Mr. MCINTOSH. OK, let us move on to George Morgan. Mr. Morgan. And then it will be Dr. McCuskey. 

STATEMENT OF GEORGE MORGAN 

Mr. MORGAN. Good afternoon, Mr. Chairman, Congressman Barr. 

I am George Morgan, I am a general partner in SMG Development 

Associates and president of George S. Morgan Development Co. 

One of our most recent projects, after 25 years of development in 

north Atlanta, is Hamilton Mill in northeast Gwinnett County. 

Hamilton Mill is a 1,400-acre planned community with approximately 2,500 homesites, a true home town. We also have two golf 

courses, a town center shopping center and other amenities that 

make Hamilton Mill a self-contained residential community. 

In June 1995, my engineer secured a nationwide wetland permit 

from the U.S. Army Corps of Engineers for Hamilton Mill under 

the nationwide permit regulations. The nationwide permit delineates existing wetlands in the total site consisting of 17.6 acres and 

allowed disturbance of 4.1 acres of the existing wetland, authorized 

creation of a 4.4 mitigation area and placed over 15 acres of additional land in perpetual restricted covenant. I was told by the 

Corps of Engineers staff at the time that my compliance with the 

national wetland permit satisfied their requirements. While I philosophically do not agree with the taking of private land without just 

compensation, I accept the conditions of the national wetland permit. 

The problem I am now having is that certain inherent changes 

must occur in developing a large project such as Hamilton Mill, 

over a 6 to 8 year period. I am told by my consultants and engineers that the Corps of Engineers now has changed their wetland 

permitting regulations by reducing the maximum allowable impacted areas for a single project from 10 acres to 3 acres. My consultants say that under the revised regulations, I must reapply to 

the Corps of Engineers for an individual permit for any disturbed 

areas. According to my consultant, any other developer who has 

been through this process, the individual permit can take from 6 

months to a year to finalize, not to mention the extra cost. I just 

might point out it took me 2 years. 

The revised nationwide permit regulations are patently unfair, 

unacceptable to those of us who earn our living in the marketplace. 

I am very appreciative of the House Government Reform and Oversight Committee’s interest in this important matter and I am asking for review and reform of the wetlands permitting process. 

Reforms that would be most beneficial to a large project such as 

Hamilton Mill are: 

(1) A permitting system that is flexible and lends itself to easy 

and fast revisions for impacted areas. 

96

Recognition by the regulators that large projects that have larger 

wetland areas should be allowed proportionately larger disturbed 

areas under the national wetland permit. For example, a 1,400 acre 

is subject to the same maximum allowable disturbable area of 3 

acres as a 10 acre tract. 

These two changes in the process would be of great value to developers such as myself and I believe would greatly help to preserve the wetlands. Keep in mind that I am a residential developer, 

I develop a place for people to live. We consider wetlands, we consider any area that preserves the natural beauty of a property to 

be a great asset. So therefore, we do everything in our power to 

work within the confines of the law to preserve those things and 

to make great access to those things. And I will point out that we 

have had numerous good working process with the Corps on other 

projects and we have turned these areas into some of the highlights 

of our development. 

But this particular project, I do not intend to resubmit this 

project to the Corps of Engineers for a chance to review this again, 

since we have made a deal to mitigate approximately four to one 

ratio. In other words, we set aside approximately 20 acres to their 

4.5 acres. The wetlands that exist on my property, which were 

minimal at best, this is an extraordinary cost for me and it is an 

extraordinary cost of the public taking of private property, which 

no compensation has been given to anyone, not to mention the 

process took, as I mentioned, almost 2 years and several hundred 

thousand dollars in both time, interest, engineering fees to accomplish, due to the bureaucratic indecision of the Corps. 

It would be most unfair to allow the Corps another bite at the 

apple. We are all sensitive to protecting our environment, but at 

the same time, the cost is ultimately passed on to the consumers, 

the people who live at Hamilton Mill. 

I just want to point out that I think that what Mr. Shackleford 

said is really the issue here. We play by the rules, we apply, we 

do everything as we are told, we set aside land, we covenant that 

land for eternity, never to be done anything with, we strike a deal 

and the end result is there is no closure, it is not over, it keeps 

going. If the rules change, they get the chance to redo it. 

I say a deal is a deal and let us stick to it and then I think that 

everyone could play by the same rules and there would not be near 

the indecision that takes place now within the Corps. I am not sure 

if this indecision comes through the EPA or comes from the Corps 

itself, but I can tell you on many personal instances they have told 

me that they interpret those rules as they see fit and if they see 

that there is a change, whether it be political or whether it be from 

a written thing, they will make those changes on their own accord. 

So, I feel that the rules just keep changing and I am asking you 

in any way, shape or form to establish a set of rules so we all know 

how to play this and do it correct. 

Thank you for your time. 

Mr. MCINTOSH. Thank you very much, Mr. Morgan. 

Our next witness is Dr. McCuskey and on deck would be Glynn 

Groszmann and Doug Congleton. 

97

STATEMENT OF DR. SUE MCCUSKEY, ENVIRONMENTAL 

CONSULTANT 

Dr. MCCUSKEY. Thank you. My name is Sue McCuskey, I am 

with an environmental consulting firm here in Atlanta and I have 

been in environmental consulting for 19 years. I was asked to come 

today and speak by the National Association of Industrial and Office Properties. 

And essentially I have a lot of experience with the wetland permitting process. I know the wetland folks down in Savannah, I 

have been out in the mud and the dirt with those guys and also 

the folks in the Atlanta office. I have been involved with a lot of 

the resolution really of wetland violation projects with both the 

Corps and the EPA folks. I have a lot of respect for the individuals 

involved in this process. And I think it is clear from what we have 

heard from everyone today here that no one is opposed to wetlands, 

no one wants to destroy wetlands, to endanger our water quality. 

That is not the purpose. On the other hand, we do have the Clean 

Water Act and the purpose of that Act is to define and direct protection of what is required under the law. 

In the case of the Clean Water Act, there are lots of different 

guidances that have come out in addition to the law. These include 

the section 404(b)(1) guidelines, regulatory guidance letters, a number of different even internal memos that help define some of the 

terminology in the wetland identification. So there are a number 

of other things that the Corps lives with and the EPA lives with, 

and as a consultant, I live with as well. 

One of the problems that we have all discussed together, and I 

think we would all agree with is that there is no distinction between a low quality wetland and a high quality wetland. The people who do not deal with wetlands on a daily basis expect a wetland to look like the Okefenokee Swamp and it does not look like 

that. There are many times when a wet place in the back of a shopping mall is a jurisdictional wetland according to the law, and you 

look at the three parameters and yes, it is legally protected. But 

there seems to be—as you mentioned, Representative Barr, there 

ought to be an element of common sense. And I think that we are 

probably all in agreement with that. 

When we talk about destruction of wetlands or, for example, on 

the West Cobb Loop road project, potential impacts to 8 acres of 

wetlands, we are not looking at an 8 acre forested swamp with lots 

of wildlife habitat. We are looking at 13 small pieces of the edges 

of wetlands and tremendous cost and effort that has gone into protecting as much of those wetlands as possible. If the Corps’ sole avenue of resolution is to look at no impacts to wetlands, then yes, 

you would have to ignore displacement of citizens on West 

Sandtown Road. But if you were to look at the bigger picture, then 

you would look at human impacts as well as wetland and wildlife 

impacts. 

So we need to have a way to look at the value of different wetlands in order to interpret the amount of impact, regardless of the 

total acres. 

I think another thing is that a lot of people do not understand 

the different kinds of permits. There are two major kinds—the nationwide permits, which are specifically designed for what is legitiVerDate Dec 13 2002 11:18 Apr 01, 2003 Jkt 010199 PO 00000 Frm 00101 Fmt 6633 Sfmt 6602 W:\DISC\45478 45478
98

mately recognized as minor impacts. And they were designed just 

in order to keep the Corps from being totally tied up in impacting 

small areas when people wanted to extend their driveway or some 

minor issue. And then there are the larger permits which are the 

individual 404 permits. 

Keep in mind that with the change in the nationwide permits, 

most people focus in on the nationwide 26, which was the most 

commonly used nationwide permit, and it used to allow impacts up 

to 10 acres if you had a body of water that had less than 5 cubic 

feet per second flow. Most people do not know a 5 cubic feet per 

second flow if they ran into one in the mall. And I usually define 

it as something that I could jump over. So if your creek is bigger 

than that, bigger than something I could jump and it has greater 

than 5 cfs flow, then the nationwide 26 would not apply. Unfortunately, that makes it much more difficult to conceptualize where 

your permit might be a problem. So any impacts to a wetland associated with a larger body of water is going to require an individual 

permit, even if it is 0.06 or whatever it is. 

There have been permits filed on individual basis for wetlands 

the size of a tennis table. 

I am out of time. 

Mr. MCINTOSH. Go ahead and summarize your comments. 

Dr. MCCUSKEY. OK. Because of the change in the allowable impacts, allowable acres of impact on the nationwide 26, a lot more 

parties are going to be involved in that and the Corps will need 

more staff in order to evaluate and process those impacts—excuse 

me, those permits. Also, you can no longer combine several nationwide permits, even though they may have been individually assumed to be of minor impact, when they are combined in the 26, 

you have to combine the acres. 

In addition, there are more permits required of pre-CN, that is 

a pre-construction notification, or restoration plans, and 18 of the 

39 new nationwide permits require something called a compliance 

certificate even if you have not had to ask for a permit in advance. 

The second kind of major permit is the individual permit and I 

have heard people call for an environmental impact statement. Actually an individual permit is an environmental assessment, it is 

the same as a NEPA EA. An EIS is distinguished only from an EA 

in that an EIS requires public participation notification. On the 

West Cobb Loop project, there was already public notification. That 

aspect of a NEPA process was already satisfied. 

As was mentioned earlier, on an individual permit, there are 

many, many issues beyond wetlands that are addressed, including 

the need and purpose of the project, traffic counts and so forth. I 

am not qualified to evaluate traffic. I am not qualified to evaluate 

the species of fish. I know wetlands, I know a lot about wetlands 

but I could not work for the Corps and give my full hearted evaluation of a permit that discussed seven or eight different major topics. No one person writes an EA or an EIS or an individual permit. 

It takes the working together of a number of skilled professionals 

and that is why it makes it very difficult for them to then come 

up with a few people from the Corps who are very well intentioned 

and very good at recognizing wetlands, but may not have the skills 

and background to do the rest of it. 

99

So let me just say that I think that in the permitting process 

there are many, many shadings to it that make it very difficult and 

particularly for linear projects where you have roads or sewer lines 

because you cannot define a single and complete project if you are 

building a road from here to Tennessee unless you happen to have 

funding for the entire length, and in most cases that does not happen. 

Thank you very much. 

Mr. MCINTOSH. Thank you very much, Doctor, we appreciate you 

coming by and testifying. Next would be Glynn Groszmann and on 

deck would be Doug Congleton and Jay Weismann testifying for 

Sam Collier. 

STATEMENT OF GLYNN GROSZMANN, SIERRA CLUB 

Mr. GROSZMANN. Good afternoon. My name is Glynn Groszmann, 

I am the water issue leader for the Georgia Chapter of the Sierra 

Club. I am also the conservation leader for the local group of the 

Sierra Club. These are volunteer positions. My occupation is a selfemployed environmental consultant, I am a certified profession in 

erosion sediment control. I address a number of issues affecting 

aquatic resources, including wetlands delineation and permitting. I 

am speaking representing the Sierra Club. 

The Georgia Chapter of the Sierra Club supports the provisions 

of the Clean Water Act which require the protection and conservation of wetlands and we support the U.S. Army Corps of Engineers’ 

efforts to administer the act’s provisions for regulating and permitting activities that affect wetlands. 

Wetlands are vital natural resources that provide crucial benefits 

to the community, including flood control, filtering and conversion 

of toxic chemicals, trapping of sediments and natural areas for fish, 

wildlife, recreation, greenspace and biodiversity. When wetlands 

are destroyed, it is the people of the community who pay the price 

for their loss, while those who cause the destruction reap the profits. It is the people who have their properties damaged by the increased flooding who pay for flood controls and higher insurance 

rates, who pay the higher costs of drinking water treatment, who 

pay to have sediment removed from their lakes and reservoirs and 

who lose the temperature control, oxygen generation, natural environments and recreation benefits that wetlands provide. 

The Sierra Club has a slogan that says, ‘‘Not blind opposition to 

progress, just opposition to blind progress.’’ For many years, mankind viewed wetlands as undesirable wet areas filled with mud, insects and reptiles that were no good to anyone unless they were 

drained or filled. However, as scientists learned more about not 

only the plant and animal communities that occupy wetlands, but 

also the processes and functions that occur there, it became apparent that wetlands provide many benefits to mankind that more 

than justify their preservation. This is especially true here in the 

north Georgia piedmont, where wetlands tend to be smaller and 

more isolated, scattered along streams and around lakes. The rapid 

pace of development caused by the sprawl of urban and suburban 

areas in north Georgia creates an even greater need for the benefits that wetlands provide, with increased development and adjacent flood plains, high levels of nonpoint source pollution runoff 

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from roads and landscaped properties, the huge levels of sediment 

discharged from constructionsites and ever-increasing needs for 

water reservoirs and treated drinking water. It would be blind of 

us to ignore these needs and the benefits wetlands provide and 

allow the destruction of wetlands in the name of progress. 

Relaxation or removal of wetlands protections will only benefit 

owners of large tracts of land and will, in fact, cost other members 

of the community either directly by increased flooding and polluted 

water supplies, or indirectly, by higher taxes, water bills and insurance rates. In the case of the publicly financed West Cobb Loop 

road project, it seems fiscally irresponsible, if not unAmerican, to 

spend the people’s tax dollars to destroy natural resources that 

benefit the community, only to have to spend more of the public’s 

money in the future to replace the benefits that were destroyed. In 

fact, the West Cobb Loop project is an excellent example of how the 

U.S. Army Corps of Engineers works with developers to help them 

achieve successful projects while preserving and protecting wetlands and other aquatic resources. 

We have found the Corps of Engineers to be reasonable and competent in enforcing wetlands regulations and that they are willing 

to work with developers who are willing to work with them. The 

West Cobb Loop is an example of a developer, Cobb County, who 

failed to address any of the provisions for wetlands protections and 

now that the Corps has forced them to address the wetlands, the 

county is working with the Corps to find a solution that provides 

a road and preserves the wetlands for the community. 

In summary, the Georgia Chapter of the Sierra Club feels that 

the community, developers and the American Congress should support the U.S. Army Corps of Engineers in their efforts to protect 

wetlands and other vital natural resources for the benefit of all current and future Americans. 

Thank you. [Applause.] 

[The prepared statement of Mr. Groszmann follows:]

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Mr. MCINTOSH. Thanks, Mr. Groszmann. Mr. Barr had a question for you, and I may have one as well. 

Mr. BARR. Thank you. Mr. Groszmann, focusing not on the West 

Cobb Loop, because I understand your position on that and respect 

it. I think you have done a great deal of work on it. 

Focusing though on Mr. Brown’s situation here that I think you 

have heard, we have discussed a great deal about. What are the 

benefits to wetlands that you enumerated—the filtration, the 

cleansing, the wildlife—which one of those would be present in a 

situation like Mr. Brown’s that would provide the basis on which 

to prevent him from taking his land and putting it back the way 

it was naturally? 

Mr. GROSZMANN. I am sorry, I was not here to hear Mr. Brown’s 

case, but I did hear enough about it to realize that it is the kind 

of case I think we all hate to hear. And from my experiences, I 

would expect that the Corps would work with him if he would work 

with the Corps. This seems like a very difficult situation when 

things change, I think that might be where the Corps has a tough 

time. As the gentlemen a few people ahead of me pointed out how 

some of the regulations have changed since he got his permit. That 

may be an area that they have a hard time deciding for themselves 

how best to handle these situations. I have not ever experienced 

any maliciousness from the Army Corps of Engineers and I do not 

think they have malicious intent. But I certainly do sympathize 

with Mr. Brown and his need to have his property. 

Mr. BARR. If you carry any weight with the Corps, I am sure he 

would appreciate it if you would communicate that to them. Thank 

you very much and I appreciate your thoughts, Mr. Groszmann. 

Mr. MCINTOSH. Mr. Groszmann, let me just ask you to clarify 

one thing you said, and coming in from outside I have learned 

about this preparing for the hearing and obviously have not been 

working on the West Loop situation as much as you and the local 

officials and the Corps have. But you indicated you thought Cobb 

County had failed to address any of the wetlands concerns, and it 

strikes me that you might disagree with them about their proposal 

and maybe they did not go far enough in addressing those, but 

when they came up with a mitigation proposal that did try to provide 8 to 1 acres of wetlands for the ones that are impacted by this, 

that they did at least think about the problem of wetlands in putting together their proposal. 

Mr. GROSZMANN. I have to disagree with that. The Corps has 

very specific criteria for the order that things have to be followed. 

Mr. Croy, with Cobb County Department of Transportation stated 

those. No. 1 is avoidance, you are supposed to show that you tried 

to avoid impacting wetlands. Step No. 2 is minimization of any impacts that are unavoidable. Step No. 3 is mitigation and the Corps 

specifically stated that mitigation cannot be the only consideration, 

that the other two have to be given full due consideration first and 

you cannot ignore them and jump straight to mitigation. Cobb 

County knew this when they submitted their plan. Cobb County 

knows how the Corps of Engineers works and I believe they intentionally set this up for a failure. 

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Mr. MCINTOSH. OK. So your quarrel is not that they did not do 

any wetlands analysis, it is that they did not do the first two correctly and went right to the third. 

Mr. GROSZMANN. Yes, basically they skipped step No. 1. And you 

cannot go any further without starting at step No. 1. 

Mr. MCINTOSH. And the other thing that came out in the testimony earlier was that there were, I guess, some differences on the 

purpose of the project and that that needs to be cleared up first, 

then you can determine if there are other feasible alternatives or 

if this is the only one and therefore, we cannot avoid it altogether. 

And so I think like two ships passing each other in the night not 

realizing it, if you do not agree on that purpose, then the county 

may have said we have a purpose for a limited access freeway and 

minimizing the impacts on families, and there might be as many 

as 40 disturbed under one of the alternatives that had fewer impacts, although it still had some impact on wetlands, based on the 

testimony earlier today. And that that limited access highway may 

not be for the same purpose that the Corps recognized in the proposal, and so they were questioning it because you have not told 

us whether you can do something that has no impact. So I think 

it is going to be key that even before they start the wetlands analysis, they reach this understanding about what the county is trying 

to do with the project, and then I think you are right, the Corps 

has a hierarchy that they ask them to follow and they need to go 

through and say OK, we have looked to see whether there is a way 

of avoiding wetlands impact altogether. Then the second step of 

minimizing the impact and then the third on mitigation. 

But from what came out today, it looked to me like that first precursor to even the wetlands analysis was causing different interpretations further down the line. 

Mr. GROSZMANN. Well, I think it was very important for the 

Corps to understand what are you trying to do here. I do not think 

the Corps can offer suggestions as to if they are not happy with alternative No. 1, they cannot suggest what might be a viable alternative, if they do not know what the goal of the project is. So I 

agree that it is important that right up front it be understood what 

are we trying to achieve here. Then the Corps can come in and say 

well, you have got three other alternatives and it looks like at least 

one or two of them might still meet your goals and meet our goals 

of minimizing impacts to the environment. So you are right, I agree 

that it is crucial that they understand what is the goal. I do not 

believe—I never got the impression that the Corps was ever going 

to reject the permit because they disagreed with the purpose. My 

understanding was they simply needed to understand the purpose 

to be able to work in a cooperative manner. 

Mr. MCINTOSH. To be honest, it sounds like they had different 

understandings of the purpose. 

Mr. GROSZMANN. Maybe so. 

Mr. MCINTOSH. And that was leading to the decision. Let me ask 

you a philosophical question because you seem to be a very 

thoughtful advocate for the environment, and I have run into some 

people who are not so thoughtful, as you are, who also disagree 

with some of the decisions that the government makes. 

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How would you in the area of wetlands say that we should structure a policy, and let us step way back and say if we could start 

over again, to balance out the needs of a community and the families involved in projects. You mentioned some of the costs for not 

considering wetlands, which I think are a very valid perspective. 

But, I guess, would you agree with me that we should also consider 

the costs of not going forward with the project, and try to get an 

understanding of all the different impacts on people and the environment and then try to make a judgment that maximizes it from 

the perspective of the human population as well as preserving sensitive environmental areas? 

Mr. GROSZMANN. I would have to agree, of course, to looking at 

all the alternatives, including a no-build alternative, have to get 

due consideration. I thought we heard from several citizens that 

live along East Sandtown Road and they were talking about how 

their community was going to be impacted. But that community 

was being impacted, not by wetlands, but by a road project. And 

it seemed somewhat out of place here in a wetlands hearing to be 

complaining about a road project, which by and large we found that 

in Cobb County, the problems that currently exist and need for the 

road, has been created by poor planning, by allowing over development, by a lack of searching for transportation alternatives, which 

Sierra Club has tried to promote to the county for years and years 

and years and yet the citizens find themselves locked up in traffic 

jams. We have got to have more roads. They are finding that the 

more roads they build, the more congestion they have and it is a 

vicious cycle that is going the wrong way. 

Mr. MCINTOSH. The other thing that we have discovered in other 

areas is if you do not have adequate transportation facilities, then 

you have other clean air effects and other—I mean a lot of different 

ramifications. 

Mr. GROSZMANN. Yes. 

Mr. MCINTOSH. Thank you. I appreciate your coming today and 

your joining in on this process and making your views known to 

us. 

Mr. GROSZMANN. Well, thank you. I have got something for you 

and the other Congressman. I know you both were very envious of 

my name tag which says ‘‘Be Conservative, Conserve Wetlands’’ 

and I would like to give one to each of you. [Laughter.] 

Mr. MCINTOSH. Well, thank you, I appreciate it. [Applause.] 

I think we have time—I had asked Doug Congleton to come forward as the next one and Jay Weismann and then we will have 

to just say that is it, but anybody else who had something in writing that they would like us to consider as part of the record, if you 

could submit that to Karen—and I apologize, we have just run out 

of time for the rest of the open mic period. Mr. Congleton. 

STATEMENT OF DOUG CONGLETON, PRESIDENT, PROTECT 

WEST COBB 

Mr. CONGLETON. I will be as brief as I can. 

Mr. MCINTOSH. Thank you. 

Mr. CONGLETON. Thank you very much. 

I am a concerned citizen and a resident of west Cobb and president of Protect West Cobb, which Laura Lester mentioned earlier, 

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a group composed of people, residents, from 12 different neighborhoods along the Noses Creek alignment. I also ran into some of the 

same problems that Laura ran into in trying to testify at this meeting. I just wanted to bring that up. 

One problem we have with what is going on is what Glynn just 

talked about. In planning roads, we think the county is doing a 

poor job of planning, and especially in this West Cobb Loop situation. This is obviously a much bigger project than the 5 miles we 

are talking about from Dallas Highway to Powder Springs Road. It 

goes all the way from Cumberland Mall to Town Center Mall and 

the county knew that when they started and they should have 

thought about that when they were looking at alignments before 

building the sections of the road outside of the West Cobb Loop and 

now saying that the West Cobb Loop has to terminate at Ridgeway 

Road and at east-west connector. 

They have also allowed some neighborhoods to go in along the 

alignment of the West Cobb Loop that were not there when the 

road was planned. We also think the traffic just does not justify or 

the local traffic does not justify the road between Dallas Highway 

and Powder Springs. If you build the road the traffic is going to be 

there. 

We also are concerned about not only the immediate impact to 

the wetlands along the alignment that has been chosen by the 

county, but we are also very concerned about secondary impacts, is 

what we call them. In my case, I live along the wetlands and I am 

very concerned about when runoff from this road happens and during construction of the road when wetlands are being filled and 

backed up, that my home is going to be flooded and I know that 

there are a lot of people along this alignment that are very, very 

concerned about that. As a matter of fact, I think the Corps of Engineers had a videotape of a home that was along the wetlands 

that is already being flooded. 

Mr. Croy earlier said the people think no road equals no development. And I would tend to agree with him in that that is not true. 

The development is going to come, and I guarantee you if the road 

comes, a four-lane highway, there is going to be development and 

it is going to be major. Just look at either end of this road, the 

east-west connector or up at the mall, the development is huge and 

will take over wetlands in immediate impacts and in secondary impacts. 

As far as the mitigation, we have a real question about the one 

purple area that Mr. Croy showed on the map, where they are 

going to create wetlands. If you look at the map closely, this is at 

the intersection of where the West Cobb Loop, a four-lane highway, 

at Macklin Road just now widened to a four-lane highway, meet. 

This is right at the corner of that and if somebody can tell me that 

there is not going to be development at a major intersection like 

that, then I would like to see that in writing. 

Mr. MCINTOSH. Let me interrupt you for just 1 second on that. 

Mr. CONGLETON. OK. 

Mr. MCINTOSH. If they did put that into a covenant and the 

county bought up the property and put it into the title that they 

could not develop it, does that in your view kind of make it a more 

positive result at the end of the day? 

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Mr. CONGLETON. Well, call me skeptical, but how long would that 

last? And what are the other three corners, the impact on those 

corners, what are they going to do with that area as far as runoff 

from parking lots and other things. 

Mr. MCINTOSH. OK. Yes, they would need to do the analysis for 

all of it. But OK, thank you, I appreciate it. 

Mr. CONGLETON. I am concerned that Mr. Brown’s problem may 

become my problem when they go back in these wetlands and disturb them and then all of a sudden I am going to have a wetland 

in my yard from everything getting backed up and my house is 

going to be flooded and then the Corps is going to say you cannot 

go out and cut your grass. I am worried about his problem, I can 

sympathize with him and I am very concerned about that. 

And in conclusion, I would just ask you, Representative Barr and 

Chairman McIntosh, if you want to come on out to my house I will 

take you on a tour of the area, we will have breakfast or dinner, 

we can go look at the traffic and just see exactly what this area 

looks like and what the impacts are going to be. 

Thank you. 

Mr. MCINTOSH. Thank you, I appreciate it. I will have to rely on 

Bob to do that. 

Mr. BARR. The record will reflect that I do live in West Cobb, Mr. 

Chairman, I am very familiar with the specifics of what we have 

been talking about here today and very sensitive to both sides. 

Mr. MCINTOSH. And our last witness is—and I have a note that 

it is Sam Collier, but Jay Weismann will speak in his place. Is that 

correct? Is that how you wanted to do it? Are you Dr. Weismann? 

Dr. WEISMANN. Yes. 

Mr. MCINTOSH. Welcome and thank you for participating. 

STATEMENT OF DR. JAY WEISMANN 

Dr. WEISMANN. Thank you, Chairman McIntosh, Congressman 

Barr. I will be very brief. 

The Atlanta Journal Constitution has spent a good part of the 

past week detailing and comparing metropolitan development in 

Atlanta to other cities, including Toronto, Portland and just on the 

southern end. It clarified that there are right and wrong ways to 

develop. Some of these wrong ways we have been engaged in for 

30–40 years, an unfortunate result for very well-intended policies 

that in some way positively influence many of us. It is easy to go 

wrong. 

I live in east Cobb, really perhaps one of the most polluted areas 

in the all of Georgia, perhaps the most polluted. I do not have children breathing this air. I do have children, they are grown and 

they have moved on. I just bid us all to carefully review the excellent studies that have been done and with the thought to our future generations, the next generation and that following; that we 

take that into consideration in reviewing our development policies. 

Thank you. 

Mr. MCINTOSH. Thank you very much, Dr. Weismann. [Applause.] 

That concludes the testimony for our hearing and let me reiterate my thanks to Congressman Barr’s staff and Congressman 

Barr for setting up this field hearing. This has been enormously 

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helpful to us in the subcommittee and we will take all this testimony back with us. 

Bob, did you have any closing remarks that you wanted to make? 

And then we will stand adjourned. 

Mr. BARR. Thank you, Mr. Chairman. I would like to reiterate 

what I told the audience both present here as well as listening in 

the media before your arrival today, and that is that we very much 

appreciate what you have done in bringing these hearings out into 

the real world outside of Washington. I know that that is something that you are very committed to, I know it is something that 

Speaker Gingrich is very committed to, in the prior Congress and 

this Congress, to allow citizens more direct and easier input into 

the decisionmaking. 

I think the hearing today was very valuable. I certainly learned 

a lot even though I live in this very community that we are talking 

about with some of these projects, Mr. Chairman, I learned a great 

deal today about what is going on. I have some very specific things 

that I know you and I and others on the committee will be looking 

into. 

I did want to recognize one of our State representatives, though 

she did not testify today, I notice she has sat through the hearings, 

because she is likewise very concerned about this and that is State 

Representative Judy Manning. We very much appreciate Representative Manning being here. [Applause.] 

And again, we hope that on your next visit, you will have a little 

bit more time so that we can go out and see actually a little bit 

more of the community and what it represents. It is a great community we have here in the Seventh District and we appreciate you 

honoring us with your presence in these hearings. 

Mr. MCINTOSH. My pleasure. Thank you very, very much. And by 

the way, I was remiss in not saying that the ranking minority 

member, Bernie Sanders, indicated that they very much appreciated this hearing and one of their Members, Mr. Kucinich of 

Ohio, had endeavored to change a lot of travel plans in order to try 

to be here today and they felt very badly they were not able to be 

part of it, but were looking forward to seeing the record and participating in the deliberations of the subcommittee. 

With that, the subcommittee is adjourned. 

[Whereupon, at 5:15 p.m., the subcommittee was adjourned.] 

[Additional information submitted for the hearing record follows:]

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