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Corps To Grant Wal-Mart Permit:
Berka Writes JCSC Attorney Charles Benjamin

March 23, 2002

Charles Benjamin, the attorney who represents the Johnson County South Coalition, received the following email from Doug Berka, who represents the Corps of Engineers. In short, it says the Corps is going to give Wal-Mart its nationwide permit so Wal-Mart can move forward with its plans at 159th and Metcalf in Overland Park, KS. Berka has also stated there will be no public hearing.

Note that no attempt was made to protect the 800+ foot stream on the south east side of the property, but instead the focus was on the drainage channel on the north side. The south east stream is a feature on the County AIMS maps, but the drainage channel is not.

The JCSC with the assistance of Charles continues to look into ways to protect neighborhoods from this monstrosity in their midst, but given the individuals currently elected to the Overland Park City Council, the outlook is poor.

By the way, I would recommend Charles to any neighborhood group looking for an attorney to represent their interest. He has an impressive resume: Charles is the attorney and legislative and conservation coordinator for the Kansas Chapter of the Sierra Club. Charles lobbies the state legislature, litigates, participates in administrative rule making and does community organizing on behalf of the Kansas Chapter of the Sierra Club. Charles' litigation on behalf of the Sierra Club includes two Clean Water Act lawsuits seeking to compel the U.S. E.P.A. to carry out their non-discretionary duties under the federal Clean water Act. Charles also represents citizen groups throughout Kansas concerned about the impacts to their property and quality of life from landfills, road projects, dams and other "improvements" that are being promoted by state and local governments. Charles represents these groups before planning commissions, city councils, county commissions, state and federal administrative agencies and state and federal courts.

Here is the email from Doug Berka:


The new Nationwide Permit No. 39 can be found in the Federal Register publication that is available on our website at

On March 11, 2002, James Scott, Regulatory Specialist and I went onsite to review information provide by the applicant concerning our jurisdiction on the proposed Wal-Mart project site. We determined that the stream channel in the SE corner of the property is outside of our regulatory jurisdiction due to the absence of an ordinary high water mark (OHWM) downstream. The channel at the north end of the property is in our regulatory jurisdiction. We measured the length of the channel in our jurisdiction to be 430 linear feet. The first 100 ft. of channel has a typical width at the OHWM of 3.5 ft.. The second 100 ft. interval has a typical channel width at OHWM of 2.5 ft. The third 100 ft. interval has a width at OHWM 2.0 ft. The next interval is 75 ft. before the channel disappears. The width of this interval is 2.0 ft. at OHWM. In the extreme NW corner of the property there is a tributary to the measured channel that is 55 ft. in length. The typical width of this channel is 3.0 ft. at OHWM.

The total impacts from the project within our jurisdiction is 430 ft of ephemeral stream channel resulting in the loss of 0.03 acres of water of the United States. For losses of less than 0.1 acre of water of the United States the applicant is not required to notify the Corps under the preconstruction notification General Condition.

This project would have met the old NWP No. 39 criteria as well. I have received several phone calls about the recently issued nationwide permits and the waiver that is now available for impacts to intermittent streams in excess of 300 feet. This channel in our jurisdiction is ephemeral and there has never been a length criteria to restrict losses. On ephemeral stream channels only the 1/2 (0.5) acre limit applies. This project results in the loss of 0.03 acre.

I will get you a copy of the site plan that they submit next week.

If you have any trouble access the web page with NWP 39 language let me know and I'll fax it to you.

Douglas R. Berka
Regulatory Project Manager

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