Developer dips in wetlands

Deadlines missed after permit violations

An aerial view of the Whole Foods site

A Boulder-based developer building a new shopping center in Frisco — to be anchored by a Whole Foods grocery store — has run afoul of federal regulators with unauthorized construction in a wetlands area.

Work at the site by Brynn Grey Partners violated the terms of a federal permit and could drain a wetlands area near the intersection of Interstate 70 and U.S. Highway 9. The wetlands help moderate flooding risks during wet times and also help sustain base flows in a nearby mountain stream during the dry season.

Essentially, the pad for the new grocery store was excavated in a way that may cause water to drain out of the wetlands.

Documents obtained under the Freedom of Information Act show that the U.S. Army Corps of Engineers and the Environmental Protection Agency have been aware of the problem since late summer. The Corps of Engineers have repeatedly asked the developer to submit new plans showing how the problem will be corrected.

In a Jan. 17 letter to Brynn Grey’s David O’Neill, the Corps pointed out that the developers have already missed several deadlines to comply with federal wetlands requirements.

“You and your consultant were aware that water was entering the project site from adjacent wetlands early during project construction,” wrote Susan Bachini Nall, chief of the Corps’ Colorado West Regulatory Branch. “And you constructed drains and infrastructure on the site that were not shown in the authorized project plans and without contacting the Corps … Please understand this unanticipated effect on adjacent wetland hydrology is [a] serious issue and must be addressed in a timely fashion.”

O’Neill, a developer known in Summit County for building affordable residential areas, says the builders at the Whole Foods site have remained in compliance with “every single condition” of the federal permit — an apparent contradiction to Nall’s Jan. 17 letter.

“Our interests in protecting the wetland are identical… we just want some science/expert opinion guiding what we do,” O’Neil said via email, after submitting a letter to the Corps that suggested hydrological monitoring at the site.

According to a Nov. 5 letter from Nall, the Corps has required the developer to build a retaining wall around parts of the Whole Foods site to prevent water from draining out of the wetlands. That letter set specific deadlines for conceptual and final plans for the wall as well as other mitigation measures — conditions that still haven’t been met by the developer. Only a small section of the site has wetland characteristics as a result of snow storage, according to O’Neill, who says more information is needed to determine whether the aquatic resources will be affected by the work.

According to the Corps, the suggested monitoring could be too little, too late.

“[T]he Corps is not willing to embark on a monitoring program in lieu of designing and constructing engineered features that will prevent the drainage and migration of groundwater from the adjacent wetlands,” Nall wrote.

Frisco Mayor Gary Wilkinson said the town expects the developer to meet all Corps requirements. Wilkinson also said the project is in compliance with all town requirements, putting the town at odds with federal environmental laws. Meadow Creek flows out of the Eagles Nest Wilderness just a couple of miles from the Whole Foods site and sustains a town fishing pond, along with a rich wetlands near the shore of Dillon Reservoir.

“We defer to our development partner on environmental questions associated with the build of the store,” Ben Friedland, Rocky Mountain region executive marketing coordinator for Whole Foods, said in an emailed statement. “They are working directly with the Army Corps and we are confident all concerns will be addressed in an appropriate and expedient manner. In the meantime, we remain focused on designing and opening a store the community of Frisco can truly be proud of.”


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