Developer forced to stop digging at Las Vegas Wash

Jeffrey Libby

Tuesday, Nov. 12, 2002 | 11:11 a.m.

Down among the cattail and bulrush of the Las Vegas Wash, Strip developer Commerce Associates early this year dug up a third of an acre of protected wetlands without a required federal permit.

Commerce Associates, which is building Tuscany, a 525-acre master-planned community in east Henderson, says it dug the temporary endpoint to a roughly mile-long section of regional flood control channel because the Southern Nevada Water Authority was dumping millions of gallons of water that were creating ponds, threatening the development's golf course. The Army Corps of Engineers in February halted work on the 120-foot-wide channel because it is illegal under the Clean Water Act, passed in 1972, to dump dredge material in U.S. waters without a permit, said Grady L. McNure, district engineer of the St. George, Utah, regional office.

Now the U.S. Army Corps has opened a public comment period to help determine under what terms, if any, Commerce Associates will be allowed to resume work on the flood channel, McNure said.

The comment period opened Nov. 1 and closes Dec. 1. "We're concerned about any potential adverse effects to the wash, primarily erosion and any loss of wetlands caused by floodwaters coming into the wash at this location," McNure said. The wash, which empties into Lake Mead, has been a federally designated waterway since the late 1970s. Despite that protection, the roughly 2,900 acres of wetland have been winnowed over the past 30 years to about 300 acres by increased runoff from the Las Vegas Valley.

The Southern Nevada Water Authority has already submitted public comments to the Army Corps, arguing that the developer's plans do not go far enough to protect the wetlands from projected 100-year peak flows of storm water.

The Water Authority since December 2000 has built five of 22 planned weirs -- wire and rock obstacles -- as part of a $90 million effort to slow water flowing through the wash and encourage gains of wetland habitat and improved water quality, Gerry Hester, a water authority engineer, said.

The problem with Commerce Associates proposal, Hester said, is the planned flood control channel funnels millions of gallons of runoff into a larger, fast moving stream without slowing the water enough.

If Commerce build as it plans, it would create more erosion in the wash, which naturally filters runoff before it goes into Lake Mead, he said.

"We want to, if not improve water quality, at least maintain it," Hester said.

Commerce Associates and the Water Authority, along with several other local, state and federal agencies, for more than two years have been planning the the final leg of the roughly one-mile section of channel. It will end miles of regional flood control channel snaked through southeast Henderson.

As part of the Tuscany community, Commerce Associates is building the $13 million channel from Lake Mead Drive and Olson Street to the wash.

Barry Fieldman, a managing partner of Commerce Associates, said national contractor PBS&J dug up the one-third acre of federal wetland because of work the water authority was doing nearby.

For six months, starting around January, the water authority began tests of its new River Mountain Water Treatment Facility, at times releasing millions of gallons of water. The pooling water was threatening two golf course fairways and a utilities loop road, Fieldman said.

To end the "emergency situation," PBS&J dug a temporary escape route for the water, project manager Lee Farris said.

As to why the permit wasn't applied for, Farris said, "I don't really have an answer for you other than to say we planned to apply for the permit when we determined the ultimate way out.

"We weren't at that point in construction yet. So we did the minimum work to provide that positive flow with a path out to the wash," he said.

McNure, who said he discovered the violation inadvertently, said he does not view the actions of PBS&J as "willful or flagrant violations" of the law.

"Generally speaking, we try to seek voluntary compliance rather than take criminal punitive type action," McNure said.

Commerce Associates has been cooperative, he said.

Fieldman said that cooperation will continue. He said PBS&J will build the channel according to the specifications outlined by the Army Corps.

"What would I want to pick a fight with the feds for?" Fieldman asked. "We need to comply because I need a permit for the third phase of the channel.

"I'm going to be helping control the water that has been going in the wash there for the last 10 million years."

Sun reporter

Mary Manning contributed to this report.