Salt Lake City's Response on Proposed Sites for Prison Relocation

Salt Lake City's Response on Proposed

Sites for Prison Relocation

Memorandum

To: Robert Nardi and the State Prison Relocation Commission From: Salt Lake City Mayor Ralph Becker Date: December 1, 2014 Subject: Analysis of Potential Sites in Salt Lake City for State Prison Relocation

The State Prison Relocation Commission’s Consultant has informed Salt Lake City that they have identified two locations within Salt Lake City as potential sites for the relocation of the prison. One site is located immediately north of the Salt Lake International Airport (the North Site) and the other is located northeast of Interstate 80 and 7200 West (the West Site) (Exhibit 1) The Commission’s consultant has invited Salt Lake City to provide information and feedback as to the characteristics and suitability of these two sites for the future relocation of the State Prison.

Summary Overview:

Neither site under evaluation for a State Prison in Salt Lake City is economically or physically feasible. Geological and Environmental concerns, infrastructure costs, airport conflicts, likely litigation risks and undue financial burden for Salt Lake City businesses and residents make either of these sites unsuitable. After careful analysis, Salt Lake City has determined that both sites are wholly inappropriate for development of the State Prison and we request neither site continue to be considered for relocation of the State Prison. A detailed summary of this analysis is provided below.

Infrastructure Availability and Costs

Roads: Currently, there is no access to the West site from the freeway. The construction of that roadway would need to occur across the old landfill site and would likely require environmental remediation of that portion of the property. (Exhibit 2)

Water and Sewer: The existing water and sewer infrastructure at these sites is either non-existent, or is inadequate to service the relocated State Prison. The costs of installing and upgrading the infrastructure necessary to service the Prison would be significant.

Salt Lake City Public Utilities estimates the cost of providing water service to the North Site at almost $11 million. The cost of providing sewer service to the North site is estimated to be over $22 million. (Exhibit 3)

Salt Lake City Public Utilities cost estimate of providing water to the West site is approximately $2,320,000. Depending upon which option for sewage treatment can be utilized, the cost of providing service to the West Site is estimated to be $269,100,000 (if existing capacity is insufficient and a new sewage treatment facility must be constructed.) (Exhibit 3)

Geologic and Environmental Issues

Low Elevations: Both of these sites are in close proximity to the Great Salt Lake. Although the lake level fluctuates from year to year, it is generally accepted that it is unsafe to develop in the area around the Great Salt Lake at any elevation at or below 4,217 feet above sea level. Topographical maps of the North Site show that almost the entire site is at or below 4,217 feet in elevation, making it unsuitable for development. (Exhibit 4) The close proximity to the Great Salt Lake also creates a risk of flooding from tsunami-type waves that could result during a seismic event in this area. (Exhibit 5)

Wetlands: Any property designated as wetlands cannot be developed, except under stringent terms dictated by federal law. The majority of the North site is designated as wetlands and there are wetland areas on the West site. (Exhibit 6)

Liquefaction Risk: Both properties are located in areas designated as high-risk for liquefaction in the event of a significant earthquake. (Exhibit 7) While development is not prohibited in areas of high liquefaction risk, the cost of construction is much higher.

Environmental Contamination: The West site is located just north of, and adjacent to, an old landfill. Due to high ground water levels in this area, any excavation work done on the West site, and the de-watering of the site that would be required for construction, would inevitably draw water and environmental contaminants from the old landfill property onto the West Site. The risk of present environmental contamination, and the risk of spreading additional contamination, likely make the West Site unsuitable for this project. (Exhibits 3 and 9)

Endangered Species: Both sites have been documented as having threatened, endangered and sensitive animal and plant species, which plants and animals live and rely on the conditions existing within the Great Salt Lake ecosystem. Any

development on these properties would need to assess and address the risk of any damage to those endangered species. (Exhibit 8)

Likely Litigation Risks and Challenges: Over 10 years ago Salt Lake City voters approved a bond to fund the construction of sports fields in the northwest part of the city, close to the Jordan River. Due to environmental and other concerns, the City has been involved in defending against a variety of legal claims for a decade. Although the City has prevailed at every stage of that litigation, the development of the project was significantly delayed and the cost of developing the sports complex is now significantly higher. The City anticipates many of the same environmental claims that arose based upon proximity to the Jordan River will also exist for this project at both sites. (Exhibit 9)

Airport Concerns

The proximity of the North Site to the east runway at the Salt Lake International Airport presents serious concerns regarding existing and future operations of the Airport. The location of the prison at this site would make it virtually impossible to expand the east Airport runway in the future. That limitation would prohibit the expansion of the Airport and impede opportunities for economic development. (Exhibit 10)

Height Restrictions: FAA limits the height of buildings constructed in proximity to an airport. (Exhibit 10)

Noise Levels: The volume of noise associated with ongoing Airport operations is incompatible with certain uses on adjacent properties. Salt Lake City code contains a map identifying the areas most impacted; they are identified as zones A and B. Any residential use is prohibited in Airport zones A and B because of excessive noise levels. The North site is entirely within airport zones A and B. (Exhibit 10)

FAA Approval of Construction: Any construction at the North site would require FAA review and approval (Exhibit 10)

Airport Safety Hazards: There is a potential safety hazard with exterior lighting used at a Prison Facility and potential conflicts for incoming aircraft and flight traffic controllers. The fencing at the Airport has created unanticipated conflicts with the radar tracking systems used at the Airport. For that reason any lighting and fencing at a Prison Facility located at the North Site would need

to be carefully reviewed and tested to make sure it does not conflict with the Airport radar tracking systems. (Exhibit 10)

Financial and Social burdens placed upon Salt Lake City Businesses and Residents

Capital City’s Unique Challenges: As Utah’s Capital City, Salt Lake City is home to most state government facilities, the University of Utah and the world headquarters of the Church of Jesus Christ of Latter-day Saints, as well as other non-profit entities. Approximately 51 percent of the total land area within the city is nontaxable. (Exhibit 11) Salt Lake City’s daytime population almost doubles every weekday as visitors, commuters and students travel into the City. Salt Lake City businesses and residents bear a substantial financial burden to pay for those services, when a majority of the properties in the City are nontaxable.

Correctional Facilities Already Located in Salt Lake City: Salt Lake City is already home to a disproportionate share of State correctional facilities. Of the State’s five Community Correction facilities, three are located in Salt Lake City, including the recently opened 300 plus bed Parole Violator Center. (Exhibit 12) Relocating the State Prison to Salt Lake City will not only create additional nontaxable acreage within the City, but also increase the heavy burdens that City businesses and residents already bear to pay for these facilities. The City cannot support the proposed relocation of the Prison within Salt Lake City.

Conclusion:

Neither site under evaluation for a State Prison in Salt Lake City is economically or physically feasible. Geologic and environmental concerns, infrastructure costs, Airport conflicts, likely litigation risks and undue financial burden for Salt Lake City businesses and residents make both of these sites unsuitable.

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Transportation Division Review SLC Prison Relocation Sites

November 19, 2014

The Transportation Division has reviewed the two proposed prison sites in Salt Lake City. A summary of the review is provided for each site below.

North Site The nearest freeway access to the proposed north site would be at the I-215 2100 N interchange. An evaluation by UDOT would be necessary to determine whether signalization would be warranted at the ramp intersections and therefore required to accommodate the generation of additional trips by the prison, and to accommodate increased traffic flows to and from the prison site.

West from I-215, 2100 N would require evaluation to determine if roadway improvements are needed. North of 2100 N, 2200 West is a narrow two lane road that currently carries low traffic volumes. This road would require roadway widening and other associated improvements to adequately accommodate additional traffic generated from the proposed prison. Any access roads going north from 2100 N or west from 2200 W to the proposed prison site would need to be built.

Currently UTA has one bus route (456) that is approximately 1.75 to 2 miles from this proposed site, with the nearest point being at the 2200 W/2100 N intersection. An evaluation by UTA would be needed in order to determine whether the transit system and operations could be modified to provide reasonable access.

West Site The nearest freeway access to the proposed west site would be at the I-80 7200 W interchange. An evaluation by UDOT would be necessary to determine whether signalization would be warranted at the ramp intersections and therefore required to accommodate the generation of additional trips by the prison, and to accommodate increased traffic flows to and from the prison site.

There is currently no road that goes north from the 7200 W freeway entrance/exit ramps. A road going north from the I-80 freeway would need to be built as part of the prison project. A portion of this road would transverse an abandoned landfill site and may require remediation measures as part of environmental and construction work. A 1.25 to 2 mile extension of 800 N from the International Center may be needed to provide a secondary access to this site. Any other roads needed to access or serve the proposed prison site would need to be built.

Currently UTA runs three bus routes (451express, 453, and 454) between SLC and the Tooele area on I-80, but there are no stops in the general vicinity of the proposed prison site. UTA also has a bus route (551) that serves the International Center. An evaluation by UTA would be needed in order to determine whether the transit system and operations could be modified to provide reasonable access.

1 | P a g eNovember 26, 2014

STATE PRISON RELOCATION SLC DEPARTMENT OF PUBLIC UTILITIES SUMMARY OF CONCERNS

Salt Lake City has conducted extensive evaluations about the feasibility of development in the areas of the city that include the 7200 West/I-80 and Airport North Sites. These efforts include the 2010 Salt Lake Sewer Master Plan, the Salt Lake City Northwest Quadrant Master Plan, and the Salt Lake City Major Conveyance Study. As a result, the City has a robust understanding of the infrastructure investments required, and the obstacles confronting any additional growth in this area of the City.

The Draper prison inmate population, including 800 staff members, consists of a population of nearly 5,000 people. This is the equivalent of moving a city the size of Moab in the northwest area of Salt Lake City. Salt Lake City’s existing sewer and water system servicing this area are at or above capacity, and the cost to upgrade the City’s facilities to accommodate the sewer and water demands of this new population would require infrastructure investments totaling hundreds of millions of dollars.* In addition, development of the PrisonProject at either the 7200 West/I-80 or Airport North sites will trigger extensive wetland permitting requirements. Finally, seismic, flooding, and groundwater concerns also make the site unappealing as a location for a prison.

SEWER & WASTEWATER TREATMENT CONCERNS

A. The 7200 West/I-80 Site

The 7200 West/I-80 Site is located within the Salt Lake City’s Northwest Quadrant Sanitary Sewer Service Area (the “Northwest Quadrant”). The Northwest Quadrant does not have sanitary sewer service available west of John Glenn Road (the road running just east of the 7200 West/I-80 Site). Any development of the Northwest Quadrant will require the City to develop a Northwest Quadrant Master Plan to plan the future build out of the area, establish centralized lift stations, and to size and locate future collection lines within the service area.

Customers near this service area are currently served by a 24-inch sewer line located along North Temple, which discharges into the Orange Street Trunk Line.1 The Orange Street Trunk Line then conveys flow to thenorth and ultimately discharges to the City’s wastewater treatment plant. This existing system cannot accommodate any new development as it is currently at or above capacity.

Alternative 1:

Establishing service to a prison at the 7200 West/I-80 Site would require construction of an interceptor that would deliver wastewater from the prison to the existing 36-inch sewer line. Sewer system capacity within the industrial park adjacent to this proposed site is also not available. Establishing system capacity within these existing lines would require the upgrade of 13,000 feet of pipe and the reconstruction of at least two lift stations. In addition, accommodating any major development within the Northwest Quadrant will ultimately require the construction of a new wastewater treatment plant with an estimated cost of approximately $260,000,000.

* The costs provided throughout this document are construction cost estimates only and do not include an allowance for design, bidding, or construction monitoring. These tasks can add an additional 15 to 20 percent to the total cost of construction. 1 A “trunk line” is a large sewer that receives flow from a number of collectors and transports the flow to the wastewater treatment plant. Sewer services are restricted along these lines and are not intended to service individual homes or buildings.


A summary of the projects in Alternative 1 and the estimated cost associated with each is provided below:

ID Project Estimated Cost

1 North West Quadrant Sewer Master Plan $100,000

2 New 10 MGD Reclamation Facility $260,000,000

6 NW Quadrant Interceptor $9,000,000

$269,100,000Total Sewer Improvement Cost

Alternative 2:

A second approach for accommodating growth in the Northwest Quadrant consists of multiple collection system projects that divert flows away from the North Temple sewer line.2 These projects would upsize existing linesalong 700 South and 500 South to convey flow to the Orange Street Trunk Line and ultimately to the wastewater treatment facility. While it is feasible to increase system capacity to service the Northwest Quadrant, this approach will require additional improvements at the wastewater treatment facility to increase plant capacity from 56 MGD to 70 MGD.

The 2010 Salt Lake City Sewer Master Plan identifies the following facilities that would be required to provide system capacity to serve the Northwest Quadrant:

Master Plan Projects

700 S, 4650 W to 3400 W, NW Quadrant Conveyance (Master Plan Project)

500 South, 3400 W to Orange Street, NW Quadrant Conveyance (Master Plan Project)

700 S Lift Station Upgrade

Project required to provide diversion capacity and is a result of insufficient capacity in North Temple Line.

Project required to accommodate flow from NW quadrant due toinsufficient capacity in North Temple Line.

Project required due to insufficient capacity at 700 S Lift Station.

Notes

An additional project detailed within the Master Plan would be required prior to any development of the Northwest Quadrant to address existing flows and available capacity of the Orange Street Trunk Line. This project would consist of the construction of a diversion that will divert flows away from Orange Street and provide necessary downstream capacity. The Orange Street Diversion is estimated to cost approximately $12,000,000 for design and construction.

2See 2010 Salt Lake Sewer Master Plan.


A summary of the projects in Alternative 2 and the estimated cost associated with each is provided below:

ID Project Estimated Cost

1 North West Quadrant Sewer Master Plan $100,000

2 Orange Street 500 South Diversion (Master Plan Project) $12,000,000

3700 S, 4650 W to 3400 W, NW Quadrant Conveyance (Master Plan Project)

$14,000,000

4500 South, 3400 W to Orange Street, NW Quadrant Conveyance (Master Plan Project)

$9,000,000

5 700 S Lift Station Upgrade $1,200,000

6 NW Quadrant Interceptor $9,000,000

$45,300,000Total Sewer Improvement Cost


sewer Collection system 7200 West 11-80 Site Sewer lmprovment Summary [, • Salt Lake City Department of Public Utilities 'f


B. The Airport North Site

The Airport North Site, located at 2200 West (2600 North to 3300 North) currently does not have sanitary sewer service available and would require the construction of a new collector line3

to convey wastewater from the prison to the City’s wastewater treatment facility. This new collector line would consist of approximately 8,700 feet of pipe extending from the Airport North Site where it would connect to the existing system.

The sewer system downstream from the Airport North Site is limited by pump and pipe capacity. The increased system demand would require capacity upgrades to 6,100 feet pipe along 2200 West and 1700 North. The sewer system from the 1700 North Lift Station to the Orange Street Trunk Line is at or above capacity, so additional system upgrades to 1,600 feet of pipe would be required. These upgrades are estimated to cost $4,500,000.

Flows currently originating from the Salt Lake City International Airport are lifted to the collection main that runs south along 2200 West. This lift station, De-Icer #4, would need to be upgraded to accommodate additional flow originating from the new prison collector line. Similarly, flows generated by the prison at the Airport North Site would exceed the capacity of the 1700 North Lift Station, thus requiring system upgrades to that lift station. The cost of improvements to these lift stations would be approximately $2,400,000.

Finally, the system demand created by the prison would require the construction of a diversion that would divert flows away from the Orange Street Trunk Line and provide necessary downstream capacity. The Orange Street Diversion will cost an estimated $12,000,000 for design and construction.

A summary of the sewer system improvements required to facilitate construction of the prison at the Airport North Site is provided below:

Project Estimated CostOrange Street 500 South Diversion (Master Plan Project)

$12,000,000

Upsize Deicer #4 Lift Station (SS25) $1,200,000Upsize 1700 North Lift Station (SS03) $1,200,000Upsize 7700' of Sewer to 36-inch $4,500,000Install 8,700 of new 24-inch main $3,500,000Total Sewer Improvement Cost $22,400,000

3 A “collector line” is a sewer that collects flows from homes and businesses for discharge into trunk sewers. There are thousands of lateral sewers throughout the collection system tributary.


sewer Collection system Airport North Site Sewer lmprovment Summary [, • Salt Lake City Department of Public Utilities 'f


WATER DISTRIBUTION CONCERNS

Indoor Use—The City estimates that the demand for a prison of 5000 inmates and employees could have a GPD as high as 200 gallons per person, per day.

Outdoor Use—Utah Administrative Code R309-510 refers to the “Irrigated Crop Consumptive Use Zones” map4 to determine a parcel of land’s irrigation requirements. According to this map,the two proposed prison sites are in a Zone 4.5 The City estimates that 50 percent of the totalacres of each site will be irrigated, meaning 250 acres for the 7200 West/I-80 Site, and 150 acres for the Airport North Site.

Fire Flow—According to estimates by the Salt Lake City Fire Department, the fire flow demand is determined to be 4000 GPM for two hours under a fire condition.

The summary of the water demand for the 7200 West/I-80 Site and the Airport North Site is shown below. See Exhibit 1 for site locations.

Demand6

Area (acres)

Indoor (MGPD)

Outdoor (MGPD)

Fire Flow (GPM)

Total (MGPD)

Total (GPM)

7200 West/I-80 Site 500 1.25 1.43 4000 3.16 2,191

Airport North Site 300 1.25 0.86 4000 2.59 1,795

Currently, neither of the proposed sites is served by an existing water service. Thus a prison at either site would require the installation of thousands of feet of new 24-inch water mains to those sites. In addition, 12-inch water mains would also need to be installed in order to provide a gridded water system. The extensions required are shown in Exhibit 2. The tables below summarize the anticipated pipe installations and their respective costs.

While the current water demand can be met by the existing water system, additional water supplies and pipelines will be needed as additional growth occurs.7 Water demand generated bythe installation of a prison requires especially drastic changes to a water distribution system because the demand created by the prison will be great and immediate. This is unlike other types of development, where subdivisions or commercial centers are built incrementally over a long period of time.

4 See id.; Soil Conservation Service, U.S. Department of Agriculture, Irrigated Crop Consumptive Use Zones and

Normal Annual Effective Precipitation: Utah (1978), available at http://www.deq.utah.gov/Topics/Water/irrigation/images/irrigation_map_2322x3240.gif. 5 See id. 6 Assuming a population of 5000 people. 7 Salt Lake City Department of Public Utilities, Major Conveyance Study, prepared by Bowen Collins & Associates, Inc. (2007).

http://www.deq.utah.gov/Topics/Water/irrigation/images/irrigation_map_2322x3240.gif


7200 West/I-80 Site Airport North Site

Length Cost/ft Total Length Cost/ft Total

24-inch pipe 3,800’ $500 $1,900,000 24-inch pipe 12,700’ $800 $10,160,000

12-inch pipe 2,100’ $200 $420,000 12-inch pipe 4,000’ $200 $800,000

$2,320,000 $10,960,000


Exhibit 1


Exhibit 2

11 | P a g eNovember 26, 2014 FLOOD CONSIDERATIONS

The Salt Lake City Northwest Quadrant Master Plan puts the lowest habitable floor elevation at 4,217 feet. Great Salt Lake peak elevations at 4,212 feet have been recorded in 1873, 1986, and 1987. According to the Utah Department of Natural Resources, the Great Salt Lake floodplain extends 5 feet above 4,212 feet to an elevation of 4,217 feet.8 Elevations of 4,217 feet are considered normal for the region as a result of a series ofyears with above-average precipitation.9 Contributing to this 5-foot height extension of the flood plain are winddriven seiches10 and wave run-up.11 Wave run-up and lake set-up (seiches) are the two lake processes that arelargely responsible for storm-related lakeshore flooding of the Great Salt Lake.

Not included in the lowest floor elevation standards are earthquake-generated tsunamis-type waves. A number of earthquake faults crisscross the lake, and one such event whipped the Great Salt Lake into 12-foot waves following the Hansel Valley Earthquake in 1909. These waves flooded Saltair and overtook a railroad trestle that was 12 feet above the lake’s surface.12 If the lake level is high, waves of 10 to 20 feet could be generatedfrom a seismic event.13 The threats from flooding and earthquake damage pose a particular safety risk to theinhabitants of the prison, especially because the inmates would be unable to self-rescue and easily relocate after a natural disaster.

STORM WATER

Storm water cost calculations were not included in this evaluation because the Utility was not provided with the information required to make those determinations, such as the hard surface area of the prison facilities.

GROUNDWATER CONTAMINATION

The West Site is immediately adjacent to a known landfill site that has a leachate plume. The proposed access for any buried utilities will go through the landfill site and create preferential pathways for migration and spread of the contaminated plume. Furthermore, high groundwater levels in this area mean that any excavation or dewatering of the West Site would inevitably draw water and environmental contaminants from the old landfill property onto the West Site. Additionally, the spread of this plume threatens lands further north, including the wetlands at Bailey Lake and the south shore of the Great Salt Lake. These wetlands are known critical habitats for multiple bird species with national and international significance.

8 The Utah Department of Natural Resources, Great Salt Lake Planning Team, 2000. 9 Id. 10 Seiches in the Great Salt Lake, Wang, P., University of Utah, Ph.D. Thesis, 1978. 11 Pugh, 1987; Komar, 1998. 12 See The Geological Society of America Interior Western United States, Field Guide 6 (2005); Summary of Hansel Valley 1909

Earthquake, University of Utah Seismograph Stations, http://www.seis.utah.edu/lqthreat/nehrp_htm/1909hans/1909ha1.shtml (last visited Nov. 12, 2014); Utah scientific: Lake could generate tsunami—may have occurred before, DESERET NEWS (Jan. 3, 2005), available at http://www.deseretnews.com/article/600102118/Lake-could-generate-tsunami--may-have-occurred-before.html?pg=all. 13 See Utah scientific: Lake could generate tsunami—may have occurred before, DESERET NEWS (Jan. 3, 2005), available at

http://www.deseretnews.com/article/600102118/Lake-could-generate-tsunami--may-have-occurred-before.html?pg=all.

http://www.seis.utah.edu/lqthreat/nehrp_htm/1909hans/1909ha1.shtml

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Seiche Waves at the Great Salt Lake

Not included in the lowest floor elevation standards are earthquake generated tsunamis-type waves. A number of earthquake faults crisscross the lake, and one such event whipped the Great Salt Lake into 12-foot waves following the Hansel valley Earthquake in 1909. These waves flooded Saltair and over took a railroad trestle that was 12 feet above the lake’s surface. If the lake level is high, waves of 10- 20 feet could be generated from a seismic event. The threats from flooding and earthquake damage pose a particular safety risk to the inhabitants of the prison, especially because the inmates would be unable to self-rescue and easily relocate after a natural disaster.

Holland & Hart LLP Attorneys at Law

Phone (801) 799-5800 Fax (801) 799-5700 www.hollandhart.com

222 S. Main Street Suite 2200 Salt Lake City UT 84101

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M E M O R A N D U MNovember 12, 2014

TO: Jeffry T. Niermeyer

FROM: Kevin Murray and Ashley Peck

RE: Proposed Prison Sites – Wetlands Permitting Requirements

This memorandum provides a brief summary of likely wetlands permitting requirements for the proposed sites for the Utah State Prison (“Prison Project”). Based on the maps the City provided, it appears that approximately half of the 508-acre East Site is recognized as wetlands in the National Wetlands Inventory (“NWI”).1 The 250-acre and 500-acre West Sites alsocontain wetlands recognized in the NWI, and the West Sites are located adjacent to Bailey’s Lake, which has a direct surface connection to the Jordan River.2 Consequently, development ofthe Prison Project at these sites will trigger extensive wetland permitting requirements.

Section 4043 of the Clean Water Act (“CWA”) regulates the discharge of dredged or fill materialinto waters of the United States, which includes wetlands and water bodies with a connection to navigable waters such as the Jordan River. The Section 404 permit program is administered by the Army Corps of Engineers (“Corps”). No discharge of dredged or fill material into wetlands will be permitted unless the applicant can show that there are no practicable alternatives that would not involve impacts to aquatic sites, that steps have been taken to avoid impacts to wetlands and potential impacts have been minimized, and that sufficient mitigation will be provided to compensate for any unavoidable impacts.4

A. Alternatives Analysis

Pursuant to Section 404(b)(1) of the CWA, an applicant must supply the Corps with: (1) a description of the purpose and need for the project, including the basic and the overall project purpose; and (2) an analysis of the practicable alternatives. Corps guidance5 provides that apermit will not be issued if the Corps finds that “[t]here is a practicable alternative to the proposed discharge that would have less adverse effect on the aquatic ecosystem.”6 As apractical matter, this means that the Corps will require any permit applicant to demonstrate that there are no other practicable alternative sites available that would have less impact to wetlands.

1 See Figure 1 attached hereto. 2 See Figure 2 attached hereto. 3 33 U.S.C. § 1344. 4 The Corps compensation rule is found at 33 C.F.R. §§ 325 and 332. 5 This guidance is found at 40 C.F.R. §§ 230.1 – 230.98. 6 40 C.F.R. § 230.12(a)(3)(i).

Page 2

When a project is not water dependent (such as a prison), there is a presumption that practicable alternatives are available.7 The alternatives analysis must look at offsite and onsite alternativesthat are capable of meeting the project purpose. The fact that an applicant does not own a piece of property does not eliminate it from consideration, nor do conflicts with existing zoning. Thus, disproving the availability of alternative sites that do not involve impacts to wetlands and adjacent waters will likely prove to be a challenge for permitting the Prison Project on the East or West Sites.

B. Delineation and Avoidance of Impacts

Although the NWI provides a reliable indicator of the presence of wetlands, it will be necessary to have a wetland scientist delineate the boundaries of all wetlands and other waters potentially impacted by the Prison Project. It is also possible that there could be more wetlands than are shown in the NWI. During the permitting process, the Corps will attempt to avoid or minimize impacts to aquatic resources by project redesign.

C. Compensatory Mitigation

Finally, compensatory mitigation will be required to offset impacts that cannot be avoided or minimized. There are three ways compensatory mitigation can be provided: mitigation banks, in-lieu fee programs, and applicant-responsible mitigation. Applicant-responsible mitigation may occur at the site of the permitted impacts or at an off-site location within the same watershed. When an applicant develops a mitigation plan, the mitigation “ratios” (i.e., how much mitigation is required for the unavoidable impact) are based on the type of wetlands being impacted. Typically, mitigation ratios are at least two to one, and in some cases as high as five to one. Thus, providing sufficient mitigation can prove to be a costly endeavor.

D. Other Permitting Requirements

In addition to a Section 404 permit and other potential permitting requirements, siting the Prison Project on the East or West Sites would require a CWA Section 401 water quality certification from the State of Utah,8 and would likely require the preparation of an environmental impactstatement under the National Environmental Policy Act.9

7 See Wetlands Protection Through Impact Avoidance: A Discussion of the 404(b)(1) Alternatives Analysis, 9 Wetlands 283, 295 (1989) (article written by three EPA employees, discussing their interpretation of the section 404(b)(1) guidelines); see also, Alternatives Analysis Guidance, U.S. Army Corps of Engineers, Seattle District (October 23, 2003) at 3. 8 Section 401 allows states to approve, condition, or deny projects which require a Section 404 permit. A Section 401 certification represents the State’s conclusion that the applicant’s project will comply with state water quality standards and other aquatic resources protection requirements under its authority. 9 NEPA is codified at 43 U.S.C. § 4321, et seq. NEPA requires all federal agencies to: (1) assess the environmental impacts of permitting decisions; and, (2) disclose those environmental impacts to the public. The possible results of a NEPA analysis are a: (1) Categorical Exclusion; (2) an Environmental Assessment (“EA”) and Finding of No Significant Impact (“FONSI”); or (3) preparation and drafting of an Environmental Impact Statement (“EIS”). An EIS is required for “major Federal actions significantly affecting the quality of the human environment.” In our opinion, siting the Prison Project on the East or West Sites would likely require preparation of an EIS.

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Liquefaction Potential

Both of the proposed sites are located in areas that are considered to have a high liquefaction potential according to the Utah Geological Survey. Most of the land area in Salt Lake City is within an area that is considered to have a high liquefaction potential. As one travels further south in the valley, the area with a high potential is smaller and found primarily along the Jordan River. East of 700 East and west of Redwood Road have a very low liquefaction potential. The current prison site has a very low liquefaction potential.

Liquefaction potential does impact the construction costs of certain types of buildings and increases the risk to people who may be occupying buildings with higher liquefaction potential. It does not prevent development.

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Habitat Areas of Threatened, Endangered, and Sensitive Species

The impacts to threatened, endangered, and sensitive (TES) animal and plant species needs to be considered and addressed when considering the possible prison locations. The data set compiled by the Utah Natural Heritage Program (UNHP) of the Utah Division of Wildlife Resources lists Utah’s federally and state listed threatened, endangered, and sensitive (TES) occurrences.

The West site is situated within the Saltair quadrangle. Thirteen TES species have been identified in that study area. According to the National Heritage Ranking, at the state level, 11 of the 13 (85%) species are vulnerable, imperiled, or critically imperiled. The identified species consist of the following: Short-Eared Owl, Bald Eagle, Long-Billed Curlew, Western Pearlshell, Western Toad, Kit Fox, Ferruginous Hawk, Townsend’s Big-Eared Bat, Bobolink, American White Pelican, Grasshopper Sparrow, Burrowing Owl, and the Long-Billed Curlew.

The North site is located within the Salt Lake City North Quadrangle. Seventeen TES species have been identified in that study area. According the National Heritage Ranking, at the State level, 16 of the 17 (94%) species are at the vulnerable, imperiled or critically imperiled level. The identified species consist of the following: Short-Eared Owl, Bald Eagle, Long-Billed Curlew, Western Pearlshell, Western Toad, Kit Fox, Ferruginous Hawk, Townsend’s Big-Eared Bat, Bobolink, American White Pelican, Grasshopper Sparrow, Burrowing Owl, Long-Billed Curlew, Yellow-Billed Cuckoo, Black Swift, and the Least Chub.

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Holland & Hart LLP Attorneys at Law

Phone (801) 799-5800 Fax (801) 799-5700 www.hollandhart.com

222 S. Main Street Suite 2200 Salt Lake City UT 84101

Aspen Billings Boise Boulder Carson City Cheyenne Colorado Springs Denver Denver Tech Center Jackson Hole Las Vegas Reno Salt Lake City Santa Fe Washington, D.C.

M E M O R A N D U MNovember 18, 2014

TO: Margaret Plane

CC: Rusty Vetter

FROM: Kevin Murray and Ashley Peck

RE: Proposed Prison Sites – Potential Litigation

This memorandum provides a brief summary of potential litigation that could ensue if the Utah State Prison (“Prison Project”) were sited on City-owned property in northwest Salt Lake City. 1In sum, development of the Prison Project at these sites will trigger extensive wetland permitting requirements, including a Clean Water Act (“CWA”) Section 404 wetland fill permit, CWA Section 401 water quality certification, and compliance with the National Environmental Policy Act (NEPA). Each of these required approvals presents an opportunity for environmental groups or other parties to appeal these administrative decisions to federal court. Additionally, the CWA citizen provision provides an additional avenue for federal court litigation. Finally, development of the West Site may also have impacts on the North Temple Landfill, potentially exposing the City to claims related to the contamination under other statutes.

Appeal of Clean Water Act Section 404 Permit (pursuant to Federal AdministrativeProcedure Act (“APA”)): If sited as proposed, the Prison Project will require a Section404 permit for discharge of dredge and fill material in wetlands. The Army Corps ofEngineers (“Corps”) must conduct an analysis to determine that there are not availablealternatives that do not involve impacts to aquatic sites, and must also require sufficientcompensatory mitigation for any unavoidable impacts. These substantive analyses aresubject to public comment, and the Corps’ permitting decision is ultimately appealable tofederal court under the APA.

Appeal of Section 401 Water Quality Certification (pursuant to Utah AdministrativeProcedure Act): The Corps’ Section 404 permit will require that the State of Utahapprove, condition, or deny the Prison Project based on whether it will comply with statewater quality standards and other aquatic resources protection requirements under theState’s authority. The State’s analysis is subject to public comment and its decision toapprove, condition or deny the Prison Project is appealable under UAPA.

1 Based on the maps the City provided, it appears that approximately half of the 508-acre East Site is recognized as wetlands in the National Wetlands Inventory (“NWI”). See Figure 1. The 250-acre and 500-acre West Sites also contain wetlands recognized in the NWI, and the West Sites are located adjacent to Bailey’s Lake, which has a direct surface connection to the Jordan River. See Figure 2. Additionally, the North Temple Landfill (which is operated by the City) is located north of the East Site. This site is currently being investigated for impacts from hazardous substances.

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Appeal of NEPA Determination (pursuant to APA): The Section 404 permit will trigger compliance with NEPA, and likely require that the Corps prepare an environmental impact statement (“EIS”) that includes a detailed analysis of alternatives to the proposed project and their respective impacts. The Corps’ NEPA determinations are also subject to appeal under the APA.

CWA Citizen Suit: Section 505 of the CWA authorizes any affected citizen to bring a

lawsuit to enforce compliance with the CWA. If the plaintiff prevails, a court can impose injunctive relief, significant monetary penalties, and an award of attorneys’ fees. Although the Prison Project would be subject to CWA permitting requirements, and any resulting permits would provide a defense in a CWA citizen suit, it is still possible that a citizen group could bring a CWA citizen suit to mount a further challenge to the Prison Project.2

Comprehensive Environmental Response, Compensation and Liability Act

(CERCLA) and Utah Hazardous Substances Mitigation Act (HSMA) Claims: Both CERCLA and HSMA provide a cause of action for parties to recover costs incurred in remediating or otherwise responding to a release of hazardous substances. Development of the prison on the West Site would likely require extensive groundwater pumping. Because of the proximity of the North Temple Landfill, it is possible that the pumping at the West Site could draw contaminated groundwater from the Landfill and disrupt the currently stable groundwater table at that site. This could lead to CERCLA or HSMA claims from the developer for any increased costs due to contamination.

Resource Conservation and Recovery Act (RCRA) Citizen Suit: RCRA allows “any

person” to bring suit against any past or present generator, transporter or owner or operator of a treatment, storage or disposal facility who has caused or contributed to the past and present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste “which may present an imminent and substantial endangerment to health or the environment.” The remedy available in a RCRA citizen suit is injunctive relief to force the defendant to clean up the violation, and the plaintiff may also recover reasonable attorneys’ fees and costs. If development of the prison on the West Site were to exacerbate the contamination at the North Temple Landfill, or cause contamination to migrate to the West Site or other adjacent areas, environmental groups or other parties may potentially bring a RCRA citizen suit.

Endangered Species Act (ESA) Citizen Suit: The ESA allows “any person” to sue to enjoin another party from engaging in conduct that allegedly violates the ESA, or to enforce applicable provisions of the ESA. In an ESA citizen suit, the court may issue an injunction and/or impose monetary penalties. The court also has discretion to award the costs of litigation, including attorney fees and expert witness fees, to “any party.” If development of the prison were to result in an ESA violation, environmental groups or other parties may bring an ESA citizen suit.

2 Notably, this is the very scenario that occurred in the citizen group challenge to the City’s Regional Sports Complex in 2011. Plaintiffs’ ultimately dismissed their citizen suit, but only after the City filed a motion to dismiss based on the CWA permit shield defense.

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Airport Issues: Noise, Height, FAA Approvals, and Safety Hazards.

Noise: Airport Influence zones are included as part of the Salt Lake City’s zoning ordinance. Airport Flight Path Protection Overlay District city code reference 21A.34.040.

The majority of the proposed North site is in Salt Lake City’s Airport Zone A. The north quarter of the site is with Airport influence Zone B. Zoning Code 21A.34.040 states, “The following are incompatible in this zone and are prohibited: residential uses. Additionally, referring to Zone B it states, “ The following uses are incompatible in this zone and are prohibited a. Residential uses, except residences in agricultural zones with air circulation systems and at least twenty five dBs of sound attenuation.”

Height: The FAA height requirements generally become less restrictive as distance from the runway ends increase. The FAA surfaces start at a 0 elevation at the end of the runway and climb at various rates from the runway end. The FAA has established that any objects that could interfere with air navigation cannot penetrate these surfaces. It is unknown how high objects would be associated with the prison construction, and if the facilities would penetrate these surfaces. Salt Lake City Zoning ordinance 21A34.040,W states, “ Any development on land located within airport influence zones A, B or C requires the acknowledgment of the existing prescriptive navigation easement.”

FAA Approvals:

FAA Advisory Circular 70/7460-2K, March 1 2000 states who must file a notice of proposed construction to the FAA: Paragraph 5, b,1: Greater than 200 feet in height, or (2)(a),(1) “20,000 feet of an airport or seaplane base with at least one runway more than 3,200 feet in length and the object would exceed a slope of 100:1 horizontally from the nearest point of the nearest runway.” Must file a notice of Proposed Construction to the FAA

Safety Hazards: Both lighting and fencing plans would need to be evaluated for potential interference with airplanes, and towers.

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Taxable Land & Land Ownership

According to 2012 Salt Lake County assessment records, 42% of Salt Lake City land is tax exempt. However, Salt Lake City also has additional land not covered by the Salt Lake County assessment records which increase the amount of tax exempt land.

Taking this additional land into consideration means that approximately 51%, or 32,458 acres, of Salt Lake City land is tax exempt. This additional land includes 9,772 acres of non-assessed open space lands located in the northeast corner of the City. Including this additional land means that Salt Lake City has the highest percentage of tax exempt land among municipalities in the Salt Lake Valley.

Some of this exempt land is accounted for by the high percent of State and Federal land within the City. Federal and State land makes up 9% of total land area within Salt Lake City.1

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Community Correction Facilities in Salt Lake City

A community Correction Facility is a facility where some convicted criminals go to serve some of their sentence, typically towards the end of their sentencing time. They are managed as secured facilities with the goal of helping prisoners transition to life outside of the prison. According to the Utah Department of Corrections, Salt Lake City is home to the following Community Correction Facilities

Bonneville CCC (1141 S 2475 West): houses approximately 70 people (male) Orange Street CCC (80 S Orange Street (1900 West)): Information is not available on the number of people served at this facility. This facility serves only

women and includes the Women’s Treatment and Resource Center. Fortitude Treatment Center - Parole Violator Center (1747 S 900 West): This is a relatively new facility, opened in 2012. It has a capacity for up to 300

male parolees.

The Utah Department of Corrections has additional community correction facilities located in:

One in Ogden (154 beds) One in West Valley City (approximately 0.5 miles from Salt Lake City) The Fremont Community Correction Center serves approximately 60 residents.

In addition to the above facilities, the Department of Corrections Adult Probation and Parole Region 3 Central Offices are located in Salt Lake City (36 West Freemont Street). These facilities provide various forms of treatment to individuals within the Probation and Parole system.

Currently, Salt Lake City contains 63% of the Utah Department of Corrections male parolees and 100% of the female parolees that are living in a Community Correction facility. All of the facilities are located in the western half of the City and all are within 5 miles of the both proposed prison sites. This creates a high concentration of community correction facilities in Salt Lake City.

Documents

Salt Lake City's Response on Proposed Sites for Prison Relocation