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Central Kentucky's Largest Home Builder Defies Wetland Laws
Saturday, 12 May 2007

Builder developed wetlands without permit
WARNING WAS IGNORED: BALL HOMES DEVELOPED IN FEDERALLY PROTECTED WETLANDS WITHOUT A PERMIT, WHICH IT DIDN'T THINK IT NEEDED. WITH CITY KNOWLEDGE, WORK IN THE FRAGILE WETLANDS WENT ON UNTIL STOPPED BY THE U.S. ARMY CORPS OF ENGINEERS...Central Kentucky's largest home builder, Ball Homes, has been building for years in a federally protected wetlands area in southeast Lexington without the proper permit from the U.S. Army Corps of Engineers. The Corps, whose job it is to protect environmentally sensitive waterways, last year ordered Ball to "cease and desist" from activities that violate the wetlands.

Builder developed wetlands without permit

WARNING WAS IGNORED: BALL HOMES DEVELOPED IN FEDERALLY PROTECTED WETLANDS WITHOUT A PERMIT, WHICH IT DIDN'T THINK IT NEEDED. WITH CITY KNOWLEDGE, WORK IN THE FRAGILE WETLANDS WENT ON UNTIL STOPPED BY THE U.S. ARMY CORPS OF ENGINEERS.

Houses in the Chilesburg area overlook a retention lake between Chilesburg Road and Hays Boulevard. Creek drainage collects in the retention lake. Photos by David Stephenson | staff
DAVID STEPHENSON
Houses in the Chilesburg area overlook a retention lake between Chilesburg Road and Hays Boulevard. Creek drainage collects in the retention lake. 

Central Kentucky's largest home builder, Ball Homes, has been building for years in a federally protected wetlands area in southeast Lexington without the proper permit from the U.S. Army Corps of Engineers. The Corps, whose job it is to protect environmentally sensitive waterways, last year ordered Ball to "cease and desist" from activities that violate the wetlands.

Lexington's city engineer allowed Ball to work in wetland areas of the 450-acre Chilesburg subdivision along Hays Boulevard, despite knowing that the company did not have the appropriate permit. Even U.S. Sen. Mitch McConnell intervened on Ball's behalf to try to get the permit approval speeded up Ð to no avail.

Jonathan Norris, an attorney for Ball Homes, said the builder didn't know it needed a federal wetlands permit for parts of the development when it started work in 2001, but "immediately filed for it" after becoming aware in 2005.

Pushing the Corps and the city to intervene in the fight to protect the wetlands is one nearby farmer, who thinks his property is being damaged by Ball's work. John Tucker says the episode with Ball shows why Lexington is in the cross hairs of the EPA, which has sued the city for violating the Clean Water Act by allowing sanitary and storm sewers to pollute local streams.

"Developers pretty much do as they like," said Tucker. "The city doesn't hold their feet to the fire."

The EPA has criticized the city for conducting inadequate inspections and for failing to enforce requirements for erosion control on construction sites. The city and the EPA are negotiating a settlement to the lawsuit, which is expected to cost the city millions of dollars.

A Corps official said Ball's permit has not been approved because the company's application needs additional work.

Even after Ball applied for the federal permit, called a 404 permit, the company did more work that affected the property's streams and wetlands on the property. Tucker again notified the Corps.

When the Corps learned of this second violation, it issued a "cease-and-desist" order, telling the company to stop dumping fill into the federally protected wetlands, which drain into a small creek that flows into the lake at Jacobson Park.

The Corps noted that any additional, unauthorized work affecting the wetlands would be subject to administrative action or referred to the U.S. Attorney for prosecution.

Last month, Mayor Jim Newberry and city Planning Commissioners were flabbergasted when they first learned about Ball's violations and that the city's engineer had not stopped the developer.

"I thought, what in the name of heaven is going on here," said Ann Ross, a Planning Commission member.

Newberry's office sent a sharply worded memo to city engineer Marwan Rayan, warning him that "no project be allowed to proceed" unless the proper "signed" permits are in place.

'Something wrong'

Tucker sent documents to several planning commission members before its April meeting about Ball Homes getting cross-wise of the Corps of Engineers, including copies of the "cease-and-desist" letter. The Corps' documents, which Tucker obtained under the open-records law, say that Ball placed fill for a road crossing, installed culverts, rock dams and pipes in an "emergent wetland."

Patti Grace-Jarrett, a biologist with the Corps' regulatory office in Louisville, said Ball "built Hays Boulevard and a large retention basin before they even applied for our permit."

Hays, a primary road through the subdivision, was designed and built by developers with the help of the city, and cuts across a stream and through a federally protected wetland.

The news that Ball had been violating wetlands in building both the subdivision and the road came as an unwelcome surprise to the Planning Commission, which had approved plans for earlier sections of the development.

Several commission members tried, without success, to halt all work on one section of Ball's development that included fragile wetlands. "I was suggesting that we force them to come clean first with the Corps of Engineers before we approve anything," said commission member Lynn Roche Phillips, who made the motion to postpone approval of that section.

If those members had succeeded, Ball's development plan would have expired and the company would have had to start over with a new development plan for that section.

Chris King, the city's director of planning, on the advice of the city law department, the next day approved the portion of the development plan not in the wetlands area.

But he refused to give approval for the handful of lots that were. "I'm not going to sign off on those until somebody shows up with this 404 permit," King said. The 404 permit is required by the Army Corps for working in wetlands areas.

In an interview, Rayan, director of the division of engineering, acknowledged that mistakes have been made.

"Maybe we accepted plans without making sure they have these 404 certificates," he said. "There may have been cases where the developer applied for permits and did not get them fast enough."

"I admit that it is our responsibility to make sure they get their permit," he said.

But in Ball Homes' case, "We understood that the developer applied for the 404 permit. It was just a matter of the Corps issuing this piece of paper."

Permit problems

To Corps officials, the 404 permit is quite a bit more than just a "piece of paper."

Alerted in 2005 that Ball Homes was working in a wetlands, the Corps told the company to file a mitigation plan detailing how the wetlands would be protected, or how the company would compensate in case of damage, said Grace-Jarrett of the Corps.

She said Ball Homes, working through consultant Redwing Ecological Services, submitted a wetlands mitigation plan two years ago, even though it should have done so in 2001.

Norris emphasized that Ball didn't know about the need for the permit and said most of the 450-acre subdivision is not in a wetland. The 404 permit would apply only to work being done in a wetland or around streams.

Getting approval of a wetlands mitigation plan -- and receiving a 404 permit -- normally takes 90 to 120 days, Grace-Jarrett said. Ball's mitigation plan has been under review for two years.

Several months after submitting the proposal, Norris wrote McConnell asking if he could contact the Army Corps to move the process along.

McConnell forwarded the letter to the Corps' Louisville district office on Aug. 20, 2005.

But the mitigation plan could not be speeded along, Grace-Jarrett said. It needed more work.

In January 2006, the Corps was alerted by Tucker that Ball had again dumped fill in a wetlands area and was still without a permit. Grace-Jarrett and a representative from the Kentucky Division of Water inspected the project.

A short time later, the Corps issued the cease-and-desist order, sent to Ball in a certified letter.

In a letter to McConnell, Col. Raymond Midkiff, an Army Corps of Engineers commander in Louisville, said, "This is the second incidence of fill materials being placed into the waters of the United States without authorization in association with this project. A road was constructed across a stream prior to the submittal of the ... permit application."

Midkiff's letter adds: "The applicant clearly had prior knowledge of the Corps' permit program at the time the work was accomplished and chose to perform the work in question prior to any permit decision."

The environmental impact of Ball's activity in the wetlands "is hard to assess because it was already impacted when I saw it," Grace-Jarrett said.

For his part, Tucker said the case raises serious issues about development throughout Lexington. He thinks the city needs to appoint an independent body to investigate "what developers have been allowed to get away with."

"Somebody in the city's failing at their job of upholding codes and permits. ... Somewhere, something's not right," he said. "It stinks to high heaven, and the more you dig into it, the worse it gets."

http://www.kentucky.com/211/story/62408.html

 
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