Rerouting Paseo around the law
By David Phillips
At this moment, the lawsuit filed against the mayor and Albuquerque City Council by the New Mexico Archeological Council, National Trust for Historic Preservation and a consortium of other environmental and social justice groups over Paseo del Norte is like two sumo wrestlers doing their stretches. It's all preliminary wrangling over matters of state law.
However, the Paseo extension through the petroglyph escarpment must also comply with federal law, which the suit currently doesn't cover. Last year, at a City Council meeting, I used my two minutes to point out that the project is subject to the federal Clean Water Act. The act is important because it will require the Army Corps of Engineers to issue a permit for the construction of Paseo.
First, though, the Corps must complete a separate process designed to protect significant historic resources. (For the wonks out there, we're talking about a "404 permit" and the "Section 106 process," but I'll keep this as non-technical as possible.) The Corps issues such permits all the time, and for most projects they sail right through. When a project will have a major impact on historic resources, however, the process gets involved. For a project such as Paseo, the process can delay construction for months or years. On rare occasion it kills a project entirely.
The Clean Water Act applies to Paseo because at the east end of the corridor, just west of Golf Course, the road will cross an obvious waterway. It's normally a dry arroyo, but after a heavy rain the water reaches the Rio Grande. Thanks to that arroyo, the city faces a long, ugly process that will carefully examine the city's plan to destroy part of a location on the National Register of Historic Places.
So how do you get rid of a federally protected waterway, so you can build Paseo, with no one noticing?
Go to Wal-Mart, of course. No, wait, I'm serious. Wal-Mart wants to build a store at the northwest corner of Paseo del Norte and Golf Links, next to the arroyo.
On March 3, 2005, a civil engineering firm representing Wal-Mart submitted a permit application to the Corps, to shunt the federally protected water into a concrete pipe. The cover letter made it clear why Wal-Mart was getting in the storm water business: "The purpose of this project is to construct a crossing for the proposed extension of Paseo del Norte ... The proposed project will put the runoff in a ... pipe ... allowing Paseo del Norte to cross the arroyo."
Why did the city get a private company to build an arroyo crossing? There's only one plausible explanation: to allow the construction work to fly under everyone's radar. In monitoring one of the most controversial road projects in Albuquerque's history, opponents have focused on the city's actions. No one was looking at what Wal-Mart was doing—and why would they? Afterwards, with the protected waters entombed in a concrete pipe, the city could announce construction of Paseo without having to go through federal review.
It's also important to ask: Why did Wal-Mart try to build an arroyo crossing for a controversial public project? To put the same question in purely political terms: What did Wal-Mart get promised quietly, in exchange for eradicating—just as quietly—a major legal obstacle to Paseo?
In any case, the ploy didn't work. The Corps, nonplussed by a private proposal to do work in a public arroyo, asked why the City of Albuquerque hadn't submitted the permit request. In short order, the city dropped the Wal-Mart front and submitted an application of its own.
This request, currently pending, admits that if the arroyo is piped it will be possible to build Paseo without a second permit. Contradicting the original application letter, the city asserts that the primary purpose of the arroyo work is localized drainage improvement. The city further claims that piping the arroyo (as opposed to other engineering options) is necessary because of a nearby sewer line. In other words, the city claims that in order to fix an alleged minor drainage problem, it absolutely must build an engineering feature capable of supporting a six-lane highway.
Suspending objectivity here, the city's claims are absurd. The arroyo drains fine at present. It wiggles, but what arroyo doesn't? It flows past that nearby sewer line without a problem. In this time of tight budgets, why does the city want to fix something that ain't broke? And if it suddenly must fix a problem that has been successfully ignored for years, why the engineering overkill?
For someone who's worked in the environmental compliance business, as I have, the answer is obvious. The city is trying to slide its permit for Paseo del Norte through the system before anyone notices, by calling it a permit for something else. The problem is, there is no reason to build the arroyo crossing as proposed, except to allow construction of Paseo del Norte. For any other purpose, the design of the project is horribly excessive. This is a proposal to build a crossing for Paseo, period.
The city's strategy subverts both the letter and the intent of federal law, based on a patently false claim on a federal application. That's the sort of thing that gets ordinary people in trouble. The more you think about it, the more ironic it seems. The city is so zealous about scofflaws that it sues the parents of taggers, is ready to confiscate the cars of first-time drunk drivers, and will use cameras to issue traffic citations. But the city is so zealous about building Paseo that it's willing to skirt, evade, and simply ignore both state and federal law. It's sad to realize that, thanks to Paseo, one of the scofflaws in Albuquerque is the city itself.
David Phillips spent more than two decades doing consulting work for public and private development projects, including transportation projects in New Mexico. Send comments to firstname.lastname@example.org
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